No. 12785 

IN THE 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 Judicial District, 

Honorable Robert Wilson, Judge presiding. 

Counsel of R.ecord: 

For Appellant : 

John L. Adams, Jr. argued, Billings, Montana 

For Respondent: 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

Thomas A. Budewitz, Assistant Attorney 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 1975 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal by defendant from a judgment of the 

district court, Yellowstone County, rendered upon a jury verdict 

convicting him of the crime of assault in the second degree. 

Early in the morning of September 22, 1973, officers 

Knutsen and Jones of the Billings Police Department responded 

to a complaint that a shooting had occurred in a residential area 

of Billings. Upon their arrival at the scene, they discovered 

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

and was being helped into his car by Mr. and Mrs. Bill Foster. 

Immediately upon the discovery that a shooting had occurred, 

Officer Jones inquired as to who had done the shooting; Foster 

replied with words to the effect that "John Grady did it". The 

officers radioed to other patrol cars that the suspect was John 

Grady and allowed the Fosters to drive the victim to the 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 side of Bubbles' car apparently trying to help 

him get in. She then saw a car come down the street with its 

lights off, make a U-turn and then stop. She testified that at 

this point a man got out of this car on the passenger side and 

a shot was fired, which she thought was into the air. She testified that a second shot was then fired which caused Bubbles to 

fall to the ground. 

Roberta Aquilar testified that she was awakened by the 

sound of loud talking. She heard one shot and, from the window 

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 street with its lights off. 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 

five minutes 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 to answer 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 falsity of 

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 to this, 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 to answer but again I caution the Jury 

don't allow the answer to affect your determination 

of guilt or innocence of this defendant. It's only 

for the purpose of establishing the sequence of 

events. 

"MR. ADAMS: If your Honor please, May I have an 

exception to the 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, Bill Foster 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 at the scene had stated that John Grady 

had d.one the shooting and that John Grady owned a 

'65 Buick, white over blue four door. At the 

time I had the license place number written down 

in my notes and I do not recall what it was today. 

Q. Did you put out the license number too? A. 

Yes, sir, I did." 

On direct examination of Officer Jones, this was elicited: 

"A. * * * So I turned back to William Foster who 

had run around and started to get into the driver's 

side and I said, 'Who shot Bubbles?' and he said, 

'John Grady, John shot Bubbles.'" 

And on cross-examination: 

"Q. What about Sally Foster, 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 lot of excitement there and 

aid, 'Who shot him?' and Mr. Foster said, 'John 

Grady did.' And then they got in the car and took 

off and I stayed at the scene and Mrs. Foster was 

there and I asked her, 'Now who did you see shooting?' And she said, 'I saw John and Carolyn and 

they were shooting at him.'" 

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 air as John 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 district court, in 

chambers, informed defendant that he was not required to take 

che stand that, if he did not take the stand and testify in his 
own behalf, no comment as to that could be made by the county 

attorney in any way. That the State was obligated to prove the 

charge beyond a reasonable doubt even though he did not testify 

and that, on the 0th9r hand, he did have the right to testify on 

his own behalf but would be subject to the same type of crossexamination as any other witness. After having been so informed 

and after conferring privately with his counsel, defendant 

elected to testify. The testimony of defendant, both on direct 

and cross-examination, is replete with admissions that he got out 

of his car and shot at the group of people in front of Bubbles 

White's house that night. Defendant, however, states that he 

shot only in self-defense',. his car having been fired upon as he 

drove down the street. He then stopped the car at the intersection, got out of the car, walked around the car fully exposed to 

the person or persons who were firing upon him. This testimony 

on cross-examination fairly summarizes his testimony: 

"Q. Then what did you do? A. I went back to the 

side of my car to where I could look over and some 

more shots come and I fired a warning shot, I fired 

in the air and then I had to duck. 

"Q. All right now, you are out of the car with 

the shotgun, you fire once in the air. Who did 

you shoot at the second time you fired the shotgun? A. I just fired in the vicinity of the 

crowd that--but low--I wasn't trying to hurt 

anybody. 

It*** 

"Q. How many times did you shoot at these three 

people standing there on the sidewalk with the 

shotgun? A. I believe it might have been twice. 

It might have been once. I don't know. 

"Q. Now you have shot once in the air, twice at 

the people over here with the shot gun, once 

into the car and you put the shotgun away. A. 

Yes. 

"Q. Did you see whether or not you had hit anybody 
when you shot them with the shotgun? A. No, 

I did not because I was fired upon again. 

"*** 

"0. So now you were fired upon again. A. 

Yes. 

"Q. Okay, and this time how did you get the 

automatic rifle or semi-automatic rifle out? 

A. I take it out of the back seat. 

"Q. Okay, now how many shots did you fire with 

the rifle? A. First shot I fired with the rifle 

was right here in front of the car and I wasn't-- 

"9. That's the one that hit the 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 to be Calvin 

White. " 

The State's case was without the testimony of Calvin 

White, the injured party, and without the testimony of William 

and Sally Foster, two persons actually at the scene at the time 

af the shooting. 

John Grady was arrested and charged with the crime of 

assault in the first degree, 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 in the second degree. Thereupon, defendant was sentenced to a term of six years in the Montana State Prison. 

Defendant appeals from that conviction and presents two 

issues: (1) Whether the district court's admission of the 

hearsay testimony of the State's witnesses that defendant was 

the assailant is reversible error? 

(2) Whether the failure of the State to produce certain 

witnesses, who may have been direct participants in the a.ffray, 

3sLablished the defense of self-defense and precluded defendant 

from being convicted of the crime of assault? We answer each 

-6- 
question in the negative and affirm the judgment of the district 

court . 

With respect to the first issue, defendant's position 

is stated in these two sentences taken from his brief to this 

Court : 

"Briefly stated, it is felt that conviction might 

not have been had if the defendant had not elected 

to testify and admit that he had fired certain 

shots that evening at Mr. White, using both a 

rifle and a shotgun * * *. Mr. Grady voluntarily 

assumed the stand but primarily his reasons for 

assuming the stand were predicated on the hearsay 

introduced in the case in chief * * *." 

Because of the view we take of this appeal, we do not examine 

the issue of whether the admission of the testimony to the effect 

that "John Grady did it" was error. Section 95-2425, R.C.M. 

1947, provides: 

"Any error, defect, irregularity or variance 

which does not affect substantial rights shall 

be disregarded. " 

It is often said that the object of a trial is a search 

for the truth. Defendant voluntarily assumed the stand. His 

admissions in his testimony clearly establish beyond a reasonable doubt that he was the person firing at "Bubbles1' White on 

the night in question. Thus the error, if any, in admitting the 

testimony that "John Grady did it" when viewed in light of the 

testimony as a whole, did not affect the substantial rights of 

defendant and is properly disregarded. 

Admitting for the moment the State's testimony that 

"John Grady did it" may have prompted defendant to take the stand, 

although the record does not show this, such fact does not 

entitle defendant to have his testimony disregarded should error 

be found. Defendant apparently asks this Court to establish a 

rule of law which would allow the defendant to enumerate every 

conceivable specification of error he could think of and state 

that because of such error he was compelled to take the stand in 
nir own behalf. Then, upon appeal, if this Court found that 

any of those specifications of error had merit, the defendant 

would be entitled to have his testimony disregarded. This 

Court will not establish such a rule of law. 

Defendant's second issue may be summarily answered. 

He contends that by his plea of self-defense he had in effect 

admitted the doing of certain acts; that the prosecution should 

tnen have been compelled to present the witnesses, namely 

"Bubbles' White and the Fosters, to vitiate 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 in Montana 

is that although the burden of persuasion remains on the State, 

in order to avail himself of the affirmative defense of selfdefense, the defendant has the burden of producing sufficient 

evidence on the issue to raise a reasonable doubt of his guilt. 

State v. ~eakk~, 44 Mont. 354, 366, 120 P. 234; State v. 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 error of law to which this special 

concurring opinion is directed. 

The defendant contends that he was prejudiced "by the 

Court's allowing the hearsay testimony of Officer Knutson that 

the defendant was the assailant". The majority hold the admission of this testimony "harmless error". 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 "verbal act", 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 explains why 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 determination of 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 is not involved. 

Justices k