### No. 12785 INTHE SUPRhXE 

### COIJRT OF THE 

### STATE OF 

### MONTANA 1975

THE 

### STATE OF MONTANA, 

### Plaintiff and Respondent,

-vs

# - JOHN GRADY, 

### Defendant and Appellant.

Appeal from: District Court of the Thirteenth JudicialDistrict, Honorable Robert Wilson, Judge presiding. Counsel of R.ecord: ForAppellant: John L. 

### Adams, Jr. argued, Billings, Montana For Respondent: Hon. Robert L. 

### Woodahl, Attorney General, Helena,

Montana Thomas A. Budewitz, AssistantAttorney General,

argued, Helena, Montana Harold F. Hanser, County Attorney, Billings, Montana Charles A. Bradley, Deputy County Attorney, Billings,

Montana

Submitted: January 17, 1975 Decided: 

## FEB

# -7 1975Mr. JusticeWesley Castlesdelivered the Opinion of the Court.

This isan appeal by defendant from a judgment of the districtcourt, Yellowstone County, rendered upon a jury verdict convicting him of the

### crime of assault inthe second degree. Early inthemorning of September 22, 1973, officers Knutsen and Jones of the Billings Police Department responded toa complaint that a shooting had occurred ina residential area of Billings. Upon their arrival atthe scene, they discovered

one Calvin "Bubbles" White had been severely wounded by gunfire and 

### was being helped intohis car by Mr. and Mrs. BillFoster. Immediately upon the discovery that a shooting had occurred, Officer Jones inquired astowho had done the shooting; Foster replied with words tothe effect that "John Grady did it". The officersradioed toother patrol cars that the suspect was John Grady and allowed the Fosters todrive thevictimtothe l~ospital. Amelio Martinez testified that she was awakened by a shot and looked out the window of her house, which was across the street from Bubbles' house. She observed Mr. and Mrs. Foster standing on the driver's sideof Bubbles' car apparently trying tohelp him get in. She then saw a carcome down the streetwith its lights off, make a U-turn and then stop. She testified that at thispoint a man got out of thiscar on the passenger side and

a shot was fired, which she thought was intothe air. She testified that a second shot

### was then firedwhich caused Bubbles to falltothe ground. Roberta Aquilar testified that she was awakened by the sound of loud talking. She heard one shot and, from thewindow of her house approximately one-third of a block or 100 feet from the activity, saw three or four other shots. She observed Bubbles lying down, probably on the sidewalk. Bubbles then got

### up and,while he 

### was being helped into his car by the Fosters, a blue Buick proceeded down the streetwith its lightsoff. She stated that the Buick stopped and more shots 

### were fired, about five she thought. The car then left, made a U-turn and came back. She then called the police. The officers arrived approximately fiveminutes thereafter. Over objection Mrs. Aquilar was permitted to testify that when the police arrived, she heard, through her open window, the police ask Mr. Foster if he knew who had shot Mr. White and that "Mr. Foster said it was John Grady." The Court allowed the witness toanswer the question but cautioned the jury that it was "allowing the answer only for the purpose of establishing the fact that this statement

was made, not for the purpose of showing the truth or falsityof the statement itself." On direct examination of Officer Mnutsen, this transpired: "Q. Now when you arrived did you ask Mr. White and Mr. Foster who had done the shooting? "MR. ADAMS: Object tothis, Your Honor, on the grounds it violates the Rules of Hearsay, no proper foundation for its admission has been laid. Further on the grounds that it violates the Rules of Confrontation. "THE COURT: Overruled, I am going to allow the witness toanswer but again I caution the Jury don't allow the answer to affect your determination of guilt or innocence of thisdefendant. It'sonly for the purpose of establishing the sequence of events. "MR. ADAMS: If your Honor please, May I have an exception tothe ruling so I am not waiving my objection? "THE COURT: Yes, you may have a continuing objection. "A. I did not ask them, Officer Jones asked them wno had done the shooting. "Q. Did anyone reply to Officer Jones' question? A.. Yes, 

### sir, BillFoster did. "Q. And what did he reply? A. He stated that John Grady had shot him."A. I put out to local cars that one of the witnesses atthe scene had stated that John Grady had d.one the shooting and that John Grady owned a '65 Buick, white over blue four door. Atthe time I had the license place number written down inmy notes and I do not recallwhat it was today. Q. Did you put out the license number too? A. Yes, sir, I did." On direct examination of Officer Jones, thiswas elicited: "A. 

## * * * So I turned back toWilliam Foster who had run around and started toget intothe driver's side and I said, 'Who shot Bubbles?' and he said, 'John Grady, John shot Bubbles.'" And on cross-examination: "Q. What about SallyFoster, did she say anything? A. Yes, she did. "Q. What did she say? A. She said that John Grady shot Bubbles. "Q. Then both her and her husband volunteered this? A. No, I asked them and then they came right out-- "Q

# . ual I s Did you specifically ask each of them individly? A. There was a lotof excitement there and aid, 'Who shot him?' and Mr. Foster said, 'John Grady did.' And then they got inthe car and took off and I stayed atthe scene and Mrs. Foster was there and I asked her, 'Now who did you see shooting?' And she said, 'Isaw John and Carolyn and they were shooting athim.'" Officer Wong of the Billings Police Department testified that he and Officer Spoerl were downtown in a patrol car and heard a dispatch that a shooting had occurred and the suspect in the shooting was put over the airasJohn Grady, driving a white

over blue Buick. Officer Wong then described the observation of

a car which they thought might be the suspect vehicle, the details of their pursuit of that vehicle and, their following the vehicle into a cornfield where John Grady and Carolyn Grady were arrested. After the prosecution had rested the districtcourt, in chambers, informed defendant that he was not required totake che stand that, if he did not take the stand and testify inhisown behalf, no comment astothat could be made by the county attorney inany way. That the State

### was obligated toprove the charge beyond a reasonable doubt even though he did not testify and that, on the 0th9r hand, he did have theright totestify on his own behalf but would be subject tothe same type of crossexamination asany other witness. After having been so informed and after conferring privatelywith his counsel, defendant elected totestify. The testimony of defendant, both on direct and cross-examination, isreplete with admissions that he got out of his car and shot atthe group of people infront of Bubbles White's house that night. Defendant, however, states that he shotonly in self-defense',. hiscar having been fired upon as he drove down the street. He then stopped the car atthe intersection, got out of the car, walked around the car fully exposed to theperson or persons who were firingupon him. This testimony

on cross-examination fairly summarizes his testimony: "Q. Then what did you do? A. I went back tothe side of my cartowhere I could look over and some more shotscome and I fired a warning shot, I fired in the airand then I had toduck.



### "Q. Allright now, you areout of the car with the shotgun, you fireonce inthe air. Who did you shoot atthe second time you fired the shotgun? A. I just fired in the vicinity of the crowd that--but low--I wasn't trying tohurt anybody. It*** "Q. How many 

### timesdidyou shoot atthese three people standing there on the sidewalk with the shotgun? A. I believe it might have been twice. Itmight have been once. I don't know.

"Q. Now you have shot once inthe air, twice at the people over here with the shot gun, once intothe car and you put the shotgun away. A. Yes. "Q. Did you see whether or not you had hit anybodywhen you shot them with the shotgun? 

### A. No, I did not because I was fired upon again. 

### "*** "0. So now you 

### were firedupon again. A. Yes. "Q. Okay, and thistime how did you get the automatic rifleor semi-automatic rifleout? A. I take it out of the back seat.

"Q. Okay, now how many shotsdid you firewith the rifle? A. First shot I fired with the rifle was righthere infront of the car and I wasn't-- 

### "9. That's the one that hitthe cement? A. Yes. "Q. Where was the second shot with the rifle? A. It was fired towards the person nearest to the end over here, it turned out tobe Calvin White. " The State's case was without the testimony of Calvin White, the injured party, and without the testimony of William and SallyFoster, two persons actually atthe scene atthe 

### time 

### af the shooting. John Grady was arrested and charged with the crime of assault inthe firstdegree, a felony under former section 94- 601, R.C.M. 1947, then in effect. The jury returned a verdict of guilty of the 

### crime of assault inthe second degree. Thereupon, defendant was sentenced toa termof sixyears intheMontana State Prison. Defendant appeals from thatconviction and presents two issues: (1) Whether thedistrict court's admission of the hearsay testimony of the State's witnesses that defendant was the assailant is reversible error? (2) Whether the failureof the Statetoproduce certain witnesses, who may have been direct participants inthe a.ffray, 3sLablished the defense of self-defense and precluded defendant from being convicted of the 

### crime of assault? We answer each

-6-question inthe negative and affirmthejudgment of the district court

# . With respect tothe firstissue, defendant's position is stated in these two sentences taken from hisbrief tothis Court: "Briefly stated, 

### it 

### isfeltthat conviction might not have been had if the defendant had not elected totestify and admit that he had fired certain shots that evening atMr. White, using both a rifleand a shotgun

## * * 

## *. Mr. Grady voluntarily assumed the stand but primarily hisreasons for assuming the stand were predicated on the hearsay introduced inthe case inchief 

## * * 

## *." Because of theview we take of this appeal, we do not examine the issue of whether the admission of the testimony tothe effect that "John Grady did it"was error. Section 95-2425, R.C.M. 1947, provides: "Any error, defect, irregularity orvariance which does not affect substantialrights shall be disregarded. " It 

### isoften said thatthe object of a trial is a search for the truth. Defendant voluntarily assumed the stand. His admissions inhis testimony clearly establishbeyond a reasonable doubt that he was the person firing at "Bubbles1' White on the night inquestion. Thus the error, if any, inadmitting the testimony that "John Grady did it"when viewed inlight of the testimony asa whole, did not affect the substantialrightsof defendant and is properly disregarded. Admitting for themoment the State's testimony that "John Grady did it"may have prompted defendant totake the stand, although the record does not show this, such factdoes not entitledefendant tohave his testimony disregarded should error be found. Defendant apparently asks thisCourt toestablish a ruleof law which would allow the defendant toenumerate every conceivable specification of error he could think of and state thatbecause of such error he was compelled totake the stand in

### nir own behalf. Then, upon appeal, if this Court found that 

### any of those specificationsof error had 

### merit, the defendant would be entitled tohave his testimony disregarded. This Court 

### willnot establish such a rule of law. Defendant's second issue may be summarily answered. He contends that by hisplea of self-defense he had in effect admitted the doing of certain acts; that theprosecution should tnen have been compelled topresent thewitnesses, namely "Bubbles' White and theFosters, tovitiate such plea, and that since none of the evidence presented by the State could vitiate the plea, it should be deemed established and the district court should have directed a verdict of acquittal. The law inMontana is that although theburden of persuasion remains on the State, in order toavail himself of the affirmative defense of selfdefense, the defendant has the burden of producing sufficient evidence on the issue toraise a reasonable doubt of hisguilt. Statev. ~eakk~, 44 Mont. 354, 366, 120 P. 234; Statev. Powell, 54 Mont. 217, 220, 169 P. 46. The judgment is affirmed.



### We concur:

Chief Justice



## ................................ Justices

### Mr. Justice Frank I. Haswell and Mr. Justice Gene B. 

### Daly specially concurring: We concur in affirming the conviction,but feel the majority opinion contains an errorof law to which this special concurring opinion isdirected. The defendant contends that he was prejudiced "by the Court's allowing the hearsay testimony of Officer Knutson that the defendant was the assailant". Themajority hold the admission of this testimony "harmlesserror". In our view, the admission of this testimony is no error at all as the testimony is clearly admissible. The testimony of Officer Knutson that upon his arrival at the scene of the shooting Mr. Foster stated that defendant had shot the victim is admissible as a "verbalact",a well recognized exception to the hearsay rule. See Wharton's Criminal Evidence, 13th Ed., Vol. 2, 

### Sec. 274. 

### The fact the statement was made, irrespective of its truth or falsity, is relevant. It serves to show the sequence of events immediately following the shooting; in particular it explainswhy police activity had focused on defendant and why police subsequently apprehended him. Without this information, the jury would be left in the dark concerning the chase and subsequent arrest of defendant. Judge Wilson clearly limited the testimony to this purpose: "Overruled, I am going to allow the witness to answer but again I 

### caution the Jury don't allow the answer to affect your determinationof guilt or innocence of this defendant. It's only for the purpose of establishing the sequence of events." 

### Hence, the testimony was clearly admissible; no error
was committed;and the "harmless error" rule isnot involved.

Justices 

## k