No. 13682 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJOSEPH E. BABELLA, 

Defendant and Appellant. 

Appeal from: District Court of the First Judicial District, 

Honorable Gordon R. Benett, Judge presiding. 

Counsel of Record: 

For Appellant: 

Peter M. Meloy argued, Helena, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Charles A. Graveley argued, County Attorney, Helena, 

Montana 

Submitted: June 6, 1978 

Decided: JUL ., l37Q 

Filed: ,ju$ - ;- , YjTF 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

 his is an appeal from a judgment in the District 

Court, ~ewis and Clark County, entered upon a jury verdict 

convicting defendant of the crime of obstructing justice, in 

violation of section 94-4-303 (2) (a) , R.C.M. 1947. 

On October 2, 1976, the Lewis and Clark County Sheriff's Department received information that one Duffy Chevallier, 

wanted by police for the alleged commission of two felony 

offenses, was present at the residence at 2952 Flamingo 

Drive, Helena, Montana. 

Two members of the Lewis and Clark County sheriff's 

auxiliary, Harold Watson and Larry Heigh, approached the 

residence and knocked on the door. Deputy Watson was met at 

the door by Toni Mallary. Deputy Watson testified he identified himself as an officer and stated he had a warrant for 

the arrest of Chevallier. Toni Mallary indicated she had 

not seen Chevallier for a couple of weeks. Deputy Watson 

further testified that defendant, Joseph Babella, was inside 

the residence and approximately one foot away from him at 

the time he stated he was looking for and had a warrant for 

the arrest of Chevallier. 

Both Toni Mallary and defendant denied seeing Chevallier. 

Subsequently, the officers, in checking the surrounding 

area, noticed Chevallier peeking out of a window in the 

residence. The officers called for assistance. Upon the 

arrival of Sheriff Rick Westlund and Lieutenant ~ichard 

Hammerbacker, a search of the trailer was conducted. At 

trial, Hammerbacker testified he also indicated to ~oni 

Mallary and defendant that he had a warrant for the arrest 
of Chevallier. However, neither offered information that 

Chevallier was, in fact, within the residence. During the 

search, Chevallier was discovered hiding under a couch in 

the living room. 

Both Toni Mallary and defendant testified they were 

never informed, by the officers or otherwise, that there 

existed a warrant for the arrest of Chevallier, or that he 

was wanted by police. 

Prior to trial defendant submitted a motion in limine 

seeking to prevent the introduction of evidence: 

"* * * of defendant's conviction of theft of 

a motor vehicle which occurred in the state 

of Michigan for the following reasons: 

"1. That at the time of the offense defendant 

was a juvenile and nearly ten years have 

passed; " 

The District Court denied the motion, stating: 

"THE COURT: Okay. As to the Motion in 

Limine filed herein, the first part thereof, 

asking that any reference to the conviction 

of theft to a motor vehicle in the state of 

Michigan is denied to this extent. The 

County Attorney may ask a single question in 

regard to the record of the Defendant and 

that is, whether or not he has been previously convicted of a felony. He may not 

go further save and except in the event that 

Defendant's character is put in issue by 

the defendant himself. * * *" 

Upon cross-examination of defendant by the State, 

defendant was asked whether he had ever been convicted of a 

felony. Defendant responded, "Yes, I have." Defendant, on 

this appeal, contests the propriety of his impeachment on 

the basis of a prior felony conviction, arguing that his 

motion in limine should have been granted. 

On appeal, defendant raises the following issue: 

Was it reversible error to admit evidence of defendant's prior felony conviction? 
Defendant bases his contention of error on the grounds 

that (a) the prior felony conviction was too remote in time; 

(b) it occurredwhile he was a juvenile; and (c) the District 

Court failed to exercise its discretion as to whether to 

grant or deny the motion in limine. 

The thrust of defendant's argument is that a conviction, 

remote in time and occurring while a defendant is a juvenile, 

should not be permitted to be used in the impeachment of a 

defendant. The sole mention in the record of the remoteness 

or juvenile nature of defendant's prior Michigan conviction 

appears in defendant's motion in limine, where the allegation is made that the prior conviction was almost ten years 

old at the time of trial, at which time defendant was a 

juvenile. Defendant submitted no proof to support these 

allegations. 

While not before the District Court at the time of the 

denial of the motion, the presentence investigation indicates the particular conviction referred to by defendant was 

six years old at the time of trial and that defendant was 

tried and convicted as an adult, being 19 years of age at 

the time. Further, the report indicates that defendant was 

convicted of a felony - in Montana -- in 1972, a mere four years 

prior to trial, at which time defendant was 21 years of age. 

Clearly, if a defendant is making a motion to exclude 

evidence because of its potential prejudice and absence of 

probative value, he should be required to make some kind of 

showing to back it up. Thus, there is no issue of remoteness or of a juvenile conviction before this Court, as the 

facts do not support it. 

Defendant first argues that a defendant's conviction 

too remote in time cannot be used to impeach his credibility 

at a subsequent trial. 
It is settled law in Montana, prior to the effective 

date of the new Rules of Evidence, that evidence of a prior 

conviction established by examination of the witness or by 

record of judgment may be introduced for the purpose of 

impeaching that witness. Section 93-1901-11, R.C.M. 1947; 

State v. Gafford, (1977), Mont. , 563 P.2d 1129, 34 

St.Rep. 313; State v, Romero, (1973), 161 Mont. 333, 505 

P.2d 1207; State v. Coloff, (1951), 125 Mont. 31, 231 P.2d 

343. While there is no authority in Montana resolving the 

question of the effect of the remoteness of prior conviction 

on its probative value and potential for giving rise to 

prejudice, the facts show defendant 19 years of age and not 

a juvenile. 

Defendant relies primarily upon an Illinois decision 

for the rule that admissibility of evidence of prior convictions is within the discretion of the trial judge only if 

a period of less than ten years had elapsed since the later 

of the date of conviction or the release of the witness from 

confinement; beyond ten years, the trial judge is without 

discretion to permit evidence of the prior conviction. 

People v. Montgomery, (1971), 47 I11.2d 510, 268 N.E.2d 695. 

Other jurisdictions, however, hold that regardless of 

the age of the prior conviction, the matter is within the 

sound discretion of the trial court. State v. Landrum, 

(1975), 25 Ariz.App. 446, 544 P.2d 270; Martin v. Commonwealth, (Ky. 1974), 507 S.W.2d 485; People v. Wingo, (19731, 

34 Cal.App.3d 974, 110 Cal.Rptr. 448; Rascon v. State, (Tex. 

1973), 496 S.W.2d 99. Yet other jurisdictions permit introduction of evidence of prior convictions regardless of their 

remoteness, holding the age of the conviction goes to the 

weight of the evidence, not its competence. Hall v. State, 
(Ind. 1976), 339 N.E.2d 802; State v. Bergen, (1975), 13 

Wash.App. 974, 538 P.2d 533; People v. Sinclair, 30 Mich-App. 

473, 186 N.W.2d 767. The matter is one of discretion on the 

part of the trial judge, and we find no abuse of discretion. 

Defendant further contends that a juvenile court judgment cannot be used to impeach the credibility of a witness, 

citing the general rule in this regard. 63 ALR3d 1112, 83; 

Rivas v. State, (Tex. 1973), 501 S.W.2d 918; Banas v. State, 

(1967), 34 Wis.2d 468, 149 N.W.2d 571, cert.den. 389 U.S. 

962, 88 S.Ct. 346, 19 L Ed 2d 373; People v. Gomez, (1957), 

152 Cal.App.2d 139, 313 P.2d 58. Here, however, defendant 

had a prior conviction in Montana when over the age of 21 

years. 

Defendant last argues that the trial judge, in denying 

the motion in limine, did so mechanically and without an 

exercise of discretion, contrary to the general rule referred to by Justice Shea in his dissent in State v. Gafford, 

supra. Defendant urges the conviction be reversed on this 

ground as well. 

The record in this case is bare of facts tending to 

support defendant's argument. However, it is logical to 

presume that when a court is vested with discretionary power 

regarding determination of an evidentiary matter, a decision 

on the matter is an exercise of discretion. The question 

then becomes whether the court abused its discretion under 

the facts of the case. Defendant does not make this argument. We find no abuse of discretion. 

The conviction is affirmed. 
We Concur: 

DSA,4,Bsf%~ 

Chief Justice 

Justices