NO. 80-.45 INTHE 

### SUPREME COURT OF THE STATE OF MONTANA 1980

STATE OF MONTANA, Plaint-iff and Respondent,

-vs-- WILLIAM 

### L. BEACHMANI Defendant acd Appellant.

Appeal from: DistrictCourt of the Nineteenth Judicial District:, In and for the County of Lincoln, the Honorable Robert C. Holter, Judge presiding.

Counsel of Record : For Appellant: Donald L. Shaffer, Libby, Montana For Respondent : Hon. Mike Greely

## , Attorney General, Helena, Monta.na Wi1liar.i Douglas, County Attorney, Libby, Montanc?

Submitted on 

### ~riefs:July 10, 1980 oecided: 1, 

### . - 

## 1%~'

Filed: 

## 3

# -

ClerkMr. Justice Gene B. Daly delivered the Opinion of the Court. 

### his appeal arises from a conviction of defendant of obstruction of justice, a felony, under section 45-7-303, MCA, in the Nineteenth Judicial District, Lincoln County, the Honorable Robert M. Holter presiding. On or about June 23, 1975, 

### atthe Pack Rat mining claim

near Libby, Montana, David Iocca was shot twice inthe back of the head, killed and buried. Prior to thatdate Iocca, Randall Craig Baugh, and defendant had lived together atthe Pack Rat cabin. Shortly after the decedent was shot, Baugh and defendant fled the 

### state. Baugh surrendered himself to authorities in 

### late 1975. He was subsequently convicted of deliberate homicide and sentenced to seventy-five years inprison. Defendant 

### was apprehended inArizona inApril 1979. He



### was charged under an amended information with deliberate homicide, or, inthe alternative, obstructing justice by assisting Baugh inthe burial of Iocca. The jury acquitted defendant of deliberatehomicide and convicted him of obstructing justice. Prior todefendant's trial, Baugh confessed to investigators that he alone had murdered and buried Iocca. ~augh then submitted to a polygraph examination, the results of which tended to support his statement that he alone had killed Iocca but showed indications of deception as to Baugh's statement that defendant was not involved in the burial. The prosecution filed a pretrial motion in limine seeking exclusion of the polygraph and its results. The trial court ruled the evidence inadmissible. Baugh then testified during the State's case-in-chief relating hisversion of the events surrounding Ioccalsdeath. His

### testimony was substantially the same as hisprior confession except 

### it indicated that defendant helped inthe burial of Iocca. The State also filed 

### a motion inlimine toprohibit the defense from making any reference to the Lincoln County Attorney having offered marijuana todefendant on the night before the murder. The trialcourt excluded all such evidence, ruling 

### it irrelevant. After 

### trial defendant

### was sentenced toten years in prison, designated a dangerous offender and declared ineligible forparole under section 46-18-202, MCA. On appeal defendant firstraises the issue of whether the trial court erred by granting the State's motion in limine to exclude evidence of Baugh's polygraph examination. The rule inMontana 

### is that the results of polygraph examinations arenot admissible as evidence in

### a criminal trial. Statev. Hollywood (1960), 138Mont. 561, 358 P.2d 437; State v. Cor (1964), 144Mont. 323, 396 P.2d 86; State

v. Campbell (1978), 176 Mont. 323, 579 P.2d 1231, 35 St.Rep. 1080; Statev. Bashor (1980), Mont. -1 

## -P.2d



## , 37 St.Rep. 1098. Defendant, relying on Statev. Dorsey (1975), 87 N.M. 323, 532 P.2d 912, argues thatpolygraph testimony, which 

### is exculpatory, 

### is admissible notwithstanding a 

### statersrules prohibiting its admission. Without ruling on whether the polygraph testimony inthis instance 

### is exculpatory, this Court merely needs tonote we have declined to follow~~orsey and the rationale expressed by the New Mexico court inthat

case. See Bashor, 37 St.Rep. 

### at 1108.~efendant also argues that the polygraph testimony should be admissible under 

### a standard generally applied to expert testimony. Relying on the rationale expressed in Bashor and united Statesv. Alexander (8thCir. 1975), 526 F.2d 161, we disagree. Rule 702, Mont.R.Evid., allows expert opinion tobe introduced 

### attrial if specialized knowledge 

### willassistthe trier of facttounderstand the evidence or determine a fact inissue. The only thing the polygraph resultcan accomplish in this instance 

### is to support the credibility of Baugh as to his testimony. Baugh's credibility 

### is not a factin issue in this action; thus, the opinion of thepolygraph operator as to the truthfulness of the statements made, does not fallwithin the scope of Rule 702, Mont.R.Evid. It isdistinctly the jury's province to determine whether a witness 

### isbeing truthful. Baugh testified fully attrial to every 

### itemthat he testified toduring the polygraph examination. The jury 

### was able to determine whether this testimony was credible. The polygraph expert inthis case would be directly invading the province of the jury if he had been allowed tooffer his opinion as to whether Baugh had been telling the truth. See Bashor, 37 St.Rep. at1109. For the reasons stated, we find the trialcourt did not

err inexcluding the evidence of the polygraph examination. The second issue raised by defendant on this appeal 

### is whether the trial court erred in granting the State's motion toexclude defendant's testimony that he had smoked marijuana with the prosecutor the night before the offense. he trial court inexcluding the offered evidence reasoned that 

### itwas not relevant, or if relevant, that

### itsprobative value was outweighed by 

### itsprejudicial effect.Rule 401, Mont.R.Evid., defines relevant evidence as "evidence having any tendency tomake the existence of 

### a fact that 

### isof consequence to the determination of the actionmore probable than 

### it would be without the evidence." (Emphasis supplied.) The basis of the State's charge of obstruction of justice against defendant asindicated inthe amended information 

### was thathe assisted Baugh inthe burial of Iocca, thereby aiding inthe suppression and concealment of the homicide committed by Baugh. The evidence sought tobe admitted was offered to show defendant 

### was not encouraged by the law officers inLincoln County atthe 

### timeIocca 

### was killed and thus had reason to fear he would not get a just, fair trial; consequently, instead of going to the authorities he fled the 

### state. It 

### ispossible that defendant entertained the belief he could not receive a fair 

### trial inLincoln County. Thus, the testimony as to his encounter with the prosecutor the night before the murder was relevant 

### as to show defendant's intent for leaving the area. However, the fact that defendant fled the area 

### is not of major consequence to the determination of this action. The gravamen of the obstruction of justice charge 

### isdefendant's stateof mind 

### atthe time he was assisting Baugh inthe burial of Iocca's body. The evidence sought to be admitted had little, if any, probative value as to this question. Rule 403, Mont.R.Evid., allows the 

### trial court, in

### its discretion, tobalance the probative value of evidence 

### as against its tendency toprejudice or confuse and mislead the jury. Statev. Rollins (1967), 149 Mont. 481, 428 P.2d 462; Statev. Breitenstein (1979), Mont. 

## , 591 P.2d233, 36 St.Rep. 403; Statev. Azure (1979), Mont. I 591 P.2d 1125, 36 St.Rep. 514. The evidence inthis instance 

### isprejudicial in that 

### it tends to cast the prosecutor ina 

### less than favorable light and would result ina trialwithin a 

### trial as tohis alleged behavior. More important, since the evidence 

### is not probative to defendant's 

### state of mind ashe was assisting in the burial, the testimony would only have directed the jury's attention from the principal issue and thereby create 

### a confused and misled jury astodefendant's guiltor innocence. Defendant argues that the probative value of the evidence outweighs any unfair prejudice or confusion of the issues. Wedisagree. The evidence sought tobe admitted 

### is collateral, focusing only on defendant's intentormotive in failing to go to the authorities inLincoln County and not

on defendant's intent ormotive inassisting Baugh. The evidence having littlerelationship to the main factin issue, 

### it cannot be said the probative value clearly overrides the evidence's prejudicial and confusing nature. Consequently, 

### we cannot find the 

### trial court erred in

### its exclusion. The final issue raised on appeal 

### iswhether the trial court erred in sentencing defendant under a statutenot in effectwhen the offense 

### was committed. The offense in this case occurred inlateJune 1975. Defendant was apprehended, tried and convicted in 1979. In sentencing defendant, the trial court declared him a dangerous offender under section 46-18-404, MCA, and declared him ineligible for parole under section 46-18-202, MCA. Both statutes

### were enacted inthe 1977 legislative session and became effective on July 1of thatyear.Application of 

### a law which eliminates or delays a defendant's parole eligibility after the criminal offense has been committed 

### isex post facto as applied to that - defendant and, therefore, unconstitutional. State

### v. Gone (1978)I 

## -Mont. 

## , 587 P.2d 1291, 35 St.Rep. 1540; State



### v. Azure (1978), -Mont. 

## , 587 P.2d 1297, 35 St.Rep. 1559. We order such restriction stricken from the judgment and sentence. The judgment of the District Court 

### is affirmed as modified.

k 

# l";' ,d-Z/L Justice

We concur:



### ?h+d!

Chief justice