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No. 98-683 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2000 MT 266 

STATE OF MONTANA, ex rel. JOSEPH P. MAZUREK, 

Attorney General for the State of Montana,

Relator,

v.

DISTRICT COURT OF THE TWENTIETH JUDICIAL 

DISTRICT, in and for the County of Lake and 

the Honorable Robert S. Keller, District Judge,

Respondents.

ORIGINAL PROCEEDING: Application for Writ of Supervisory Control 

COUNSEL OF RECORD:

For Relator:

Hon. Joseph P. Mazurek, Montana Attorney General; 

Patricia J. Jordon, Elizabeth Horsman (argued), Assistant 

Attorneys General, Helena, Montana

For Respondent:

James A. Manley (argued), Attorney at Law, Polson, Montana

Argued and Submitted: November 2, 1999 

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Decided: October 2, 2000

Filed:

__________________________________________

Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

¶1 This case originated in this Court on the application of the State of Montana (State) for 

a writ of supervisory control seeking relief from the order of the Twentieth Judicial 

District Court, Lake County, granting a motion in limine filed by Gregory Lloyd Ingraham 

(Ingraham). Having accepted supervisory control and heard oral arguments, we reverse the 

District Court's order and remand.

¶2 The issue before us is whether the District Court abused its discretion in granting 

Ingraham's motion in limine and precluding the State from using Ingraham's testimony 

from the first trial in the underlying case during its case-in-chief at the second trial.

BACKGROUND 

¶3 Ingraham was involved in a two-vehicle accident on Highway 93 north of St. Ignatius, 

Montana, in October of 1995. The driver of the other vehicle was killed in the collision 

and a passenger was severely injured. Ingraham subsequently was charged with the 

offenses of negligent homicide and criminal endangerment, both felonies, as well as 

misdemeanor criminal trespass to property. Ingraham pleaded not guilty to all counts and 

the case proceeded to jury trial.

¶4 At trial, the State introduced into evidence two prescription medication bottles found in 

Ingraham's vehicle on the night of the accident and test results showing that prescription 

medications and alcohol were present in Ingraham's blood and urine on that night. The 

State also presented expert testimony regarding the effects of the medications on a 

person's physical abilities and the medical warnings regarding the interaction of the drugs 

with each other and with alcohol. Ingraham testified in his own defense. The jury returned 

a verdict finding Ingraham guilty of the three charged offenses. The District Court 

sentenced Ingraham and entered judgment.

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¶5 Ingraham timely appealed and we vacated the District Court's judgment and remanded 

for a new trial. Among other things, we held that it was prejudicial error to admit the 

evidence and testimony regarding the prescription drugs because the State failed to 

establish a nexus between the presence of the drugs in Ingraham's blood and urine and his 

ability to drive a vehicle on the night of the accident. State v. Ingraham, 1998 MT 156, ¶¶ 

37-51, 290 Mont. 18, ¶¶ 37-51, 966 P.2d 103, ¶¶ 37-51.

¶6 On remand, Ingraham moved in limine to preclude the State from using his testimony 

from the first trial during its case-in-chief at the second trial. He based his motion on § 46-

16-701, MCA, and his right not to be compelled to testify against himself as guaranteed by 

the United States and Montana Constitutions. The District Court granted the motion and 

the State petitioned for supervisory control. We accepted jurisdiction and remanded to the 

District Court for a hearing regarding Ingraham's reasons for testifying in the first trial and 

the entry of findings of fact, conclusions of law and an order setting forth the District 

Court's reasoning in granting the motion in limine. Following the District Court's entry of 

its written order, the parties submitted supplemental briefs to this Court and we heard oral 

arguments.

STANDARD OF REVIEW 

¶7 A district court's ruling on a motion in limine is an evidentiary ruling which we review 

for an abuse of discretion. State v. Delaney, 1999 MT 317, ¶ 6, 297 Mont. 263, ¶ 6, 991 

P.2d 461, ¶ 6. Here, the District Court granted Ingraham's motion based on its 

interpretation of statutory and constitutional provisions. A district court's interpretation of 

a statute involves a question of law which we review to determine whether the court's 

interpretation of the law is correct. State v. Brummer, 1998 MT 11, ¶ 31, 287 Mont. 168, ¶ 

31, 953 P.2d 250, ¶ 31. Our review of questions of constitutional law is plenary. State v. 

Grimes, 1999 MT 145, ¶ 19, 295 Mont. 22, ¶ 19, 982 P.2d 1037, ¶ 19.

DISCUSSION 

¶8 Did the District Court abuse its discretion in granting Ingraham's motion in limine and 

precluding the State from using Ingraham's testimony in the first trial during its case-inchief at the second trial?

¶ 9 In his motion in limine, Ingraham contended that his testimony from the first trial is 

not admissible in the State's case-in-chief at the second trial pursuant to § 46-16-701, 

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MCA, and that admission of his prior testimony in the second trial would violate his 

constitutional rights to due process and to be free from being compelled to testify against 

himself. The District Court concluded that the State's use of Ingraham's prior testimony 

during its case-in-chief would violate both § 46-16-701, MCA, and Ingraham's 

constitutional right to be free from being compelled to testify against himself, and granted 

Ingraham's motion. The State asserts error and we address the two bases for the District 

Court's decision in turn.

A. Section 46-16-701, MCA 

¶10 Section 46-16-701, MCA, provides that "[t]he granting of a new trial places the 

parties in the same position as if there had been no trial." Ingraham argued in the District 

Court that this statute precludes the use of his testimony from the first trial in a subsequent 

trial because, if there had been no prior trial, there would be no prior testimony. He relied 

on our statement in State v. Hall (1988), 234 Mont. 57, 62, 761 P.2d 1283, 1286, that

[n]ew trials where prior testimony is not allowed must be granted on a limited basis, 

limited by Sections 46-16-701 and -702 after a jury verdict of guilty or a finding of 

guilty by the court.

The District Court determined that this language constituted a holding that § 46-16-701, 

MCA, operates to preclude the admission of prior testimony when a defendant is granted a 

new trial and, consequently, the State cannot use Ingraham's first trial testimony in the 

second trial in this case. The State contends, however, that Hall is not controlling authority 

and that, based on its legislative history, § 46-16-701, MCA, should not be interpreted as 

precluding prior testimony in a subsequent trial.

¶11 In Hall, the defendant was charged with three counts of felony theft. At the first trial--

in which the defendant testified--the jury could not reach a verdict and the district court 

declared a mistrial. At the second trial, the prosecution introduced portions of the 

defendant's testimony from the first trial into evidence; the defendant did not testify at this 

trial. The jury found the defendant guilty on all counts and the defendant appealed. Hall, 

234 Mont. at 58-59, 761 P.2d at 1284.

¶12 On appeal, the defendant relied on § 46-16-701, MCA, in support of his argument that 

the district court erred in the second trial by admitting his testimony from the first trial. 

Hall, 234 Mont. at 61, 761 P.2d at 1285. We concluded that, because the first trial ended 

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in a mistrial as a result of the jury's failure to reach a verdict, the second trial was not a 

"new trial" as the term is used in § 46-16-701, MCA, and, consequently, the statute did not 

apply. Hall, 234 Mont. at 62, 761 P.2d at 1286. We went on to state that "[n]ew trials 

where prior testimony is not allowed must be granted on a limited basis, limited by 

Sections 46-16-701 and -702 after a jury verdict of guilty or a finding of guilty by the 

court." Hall, 234 Mont. at 62, 761 P.2d at 1286.1

¶13 We had already concluded that the statute did not apply to the case, however. As a 

result, our statement suggesting that prior testimony is not admissible in a new trial under 

§ 46-16-701, MCA, was not necessary to the resolution of the issue before us and, 

therefore, was dictum. Dictum is not binding precedent. See State v. Montoya, 1999 MT 

180, ¶ 24, 295 Mont. 288, ¶ 24, 983 P.2d 937, ¶ 24 (citation omitted). As a result, we 

conclude that Hall does not control our resolution of the issue before us. The parties do not 

cite--nor have we found--any other cases addressing the issue of whether § 46-16-701, 

MCA, precludes the use in a new trial of a defendant's testimony from a prior trial. 

¶14 In the absence of any controlling case authority on this issue, the State argues that 

§ 46-16-701, MCA, should be interpreted in a manner that would not preclude the 

admission of Ingraham's prior testimony and, furthermore, would not conflict with 

evidentiary rules which otherwise would allow admission of such testimony. See, e.g., 

Rule 801(d)(2), M.R.Evid. In support of this argument, the State contends that a review of 

the historical permutations of the statute reveals that the Montana Legislature did not 

intend for the current version of § 46-16-701, MCA, to preclude the use of prior testimony 

in a new trial. We agree.

¶15 The Montana Code has contained provisions relating to the grant of a new trial for 

over 100 years. In 1879, § 352 of Montana's Criminal Practice Act provided that "[t]he 

granting of a new trial, places the parties in the same position as if no trial had been had. 

The former verdict cannot be used, or referred to, either in the evidence or argument." 

This statute was amended in 1895 to provide that

[t]he granting of a new trial places the parties in the same position as if no trial had 

been had. All the testimony must be produced anew, and the former verdict cannot 

be used or referred to either in evidence or in argument, or be pleaded in bar of any 

conviction which might have been had under the indictment or information.

Sec. 2191, R.C.M. (1895).

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¶16 The statute remained in this form until 1967, at which time it was recodified as § 95-

2101(a), R.C.M. (1947), when the Legislature revised Montana's criminal procedure code. 

However, the Legislature also modified the statute by, inter alia, deleting the phrase "[a]ll 

the testimony must be produced anew . . .," so that the section read as follows:

A new trial is a re-examination of the issue in the same court, before another jury, 

after a verdict or finding has been rendered and the granting of a new trial places the 

parties in the same position as if there had been no trial.

See 1967 Mont. Laws Ch. 196, Sec. 1. The section remained in essentially this form until 1991, when 

the phrase defining "new trial" was deleted (see 1991 Mont. Laws Ch. 800, Sec. 213), leaving only the 

sentence "[t]he granting of a new trial places the parties in the same position as if there had been no 

trial." This is the current form of § 46-16-701, MCA. 

¶17 It is clear that, prior to 1967, the predecessor to § 46-16-701, MCA, expressly 

provided that testimony must be produced anew in a new trial. The corollary to that 

express provision, of course, was that testimony from an earlier trial could not be used in a 

new trial of the same case. In revising the criminal procedure code, however, the 

Legislature amended the statute by deleting the language requiring that testimony be 

produced anew.

¶18 It has long been the law that, when the Legislature amends a statute, we will presume 

that it meant to make some change in the existing law. Foster v. Kovich (1983), 207 Mont. 

139, 144, 673 P.2d 1239, 1243; Tuttle v. Morrison-Knudsen Co., Inc. (1978), 177 Mont. 

166, 172, 580 P.2d 1379, 1382; Nichols v. School Dist. No. 3 of Ravalli County (1930), 

87 Mont. 181, 186, 287 P. 624, 627. Consequently, we presume that the Legislature, 

through its 1967 amendment, intended to change the existing law and allow the use of 

testimony from a prior trial in a new trial. Furthermore, as the pertinent portion of the 

statute has not changed substantively since 1967, we conclude that § 46-16-701, MCA, 

continues to reflect this intent. Therefore, we conclude that § 46-16-701, MCA, does not 

preclude the State from using Ingraham's testimony from the first trial during its case-inchief at the retrial of this case and the District Court's conclusion to the contrary is 

erroneous.

B. Harrison v. United States 

¶19 Ingraham also contended in the District Court that use of his first trial testimony in his 

second trial would violate his right to be free from being compelled to testify against 

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himself as guaranteed by the Fifth Amendment to the United States Constitution and 

Article II, Section 25 of the Montana Constitution. In support of this contention he relied 

on Harrison v. United States (1968), 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047, as 

interpreted by the Michigan Court of Appeals in People v. Armentero (Mich. App. 1986), 

384 N.W.2d 98. The District Court concluded that, under the Harrison/Armentero 

analysis, use of Ingraham's testimony would violate his constitutional rights because he 

had been compelled to testify in the first trial as a result of the State's use of the 

prescription drug evidence which we later determined was improperly admitted. The State 

argues that the court erred in relying on Armentero and that a straightforward analysis 

under Harrison establishes that use of Ingraham's prior testimony would not violate his 

constitutional right to be free from being compelled to testify against himself.

¶20 The defendant in Harrison was charged with the offense of felony murder. At trial, the 

prosecution presented evidence of three confessions allegedly made by the defendant 

when he was in police custody. After the confessions were admitted into evidence, the 

defendant testified. The jury found the defendant guilty and he appealed. The conviction 

was reversed on the basis that the confessions had been obtained illegally and, therefore, 

were inadmissible. Harrison, 392 U.S. at 220, 88 S.Ct. at 2009, 20 L.Ed.2d at 1050. 

Another trial was held, during which the prosecution read the defendant's testimony from 

the previous trial to the jury. The jury returned a guilty verdict. The defendant again 

appealed, arguing that his prior trial testimony was inadmissible in the second trial 

because the admission of the illegally obtained confessions in the first trial compelled him 

to testify. The United States Supreme Court granted certiorari to review the issue. 

Harrison, 392 U.S. at 221, 88 S.Ct. at 2009, 20 L.Ed.2d at 1050-51.

¶21 The Supreme Court first observed that a defendant's testimony in a prior trial 

generally is admissible in evidence against him in later proceedings because "[a] 

defendant who chooses to testify waives his privilege against compulsory selfincrimination with respect to the testimony he gives . . . ." Harrison, 392 U.S. at 222, 88 S.

Ct. at 2010, 20 L.Ed.2d at 1051. The Supreme Court held, however, that where a 

defendant is compelled to testify as a result of evidence which has been illegally obtained 

and improperly admitted into evidence, the testimony is inadmissible in a later trial 

because it is fruit born of the poisonous tree that was the illegally obtained evidence. 

Harrison, 392 U.S. at 222-24, 88 S.Ct. at 2010, 20 L.Ed.2d at 1051. Thus, because the 

prosecution in Harrison failed to meet its burden of establishing that the defendant had 

testified in the first trial for reasons other than to overcome the impact of the illegal 

evidence, his testimony was inadmissible in the second trial. Harrison, 392 U.S. at 225-26, 

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88 S.Ct. at 2011-12, 20 L.Ed.2d at 1053.

¶22 In subsequent cases, both federal and state courts have held that, in order to preclude 

the use of prior testimony in a subsequent trial under the Harrison rationale, the testimony 

must have been compelled by the admission of evidence both illegally obtained--such as 

through the use of unconstitutional law enforcement practices--and improperly admitted at 

trial. See, e.g., United States v. Bohle (2nd Cir. 1973), 475 F.2d 872, 875-76; Patton v. U.

S. (D.C. App. 1997), 688 A.2d 408, 411; State v. Hunt (N.C. 1994), 457 S.E.2d 276, 285; 

Towe v. State (Ark. 1990), 801 S.W.2d 42, 43; State ex rel. LaSota v. Corcoran (Ariz. 

1978), 583 P.2d 229, 237-38. Conversely, where a defendant's testimony is compelled as a 

result of evidence which is held to have been improperly admitted pursuant to an 

evidentiary rule, rather than because it was unconstitutionally obtained, Harrison does not 

operate to preclude use of the testimony in a later trial. Bohle, 475 F.2d at 875-76; Patton, 

688 A.2d at 411; Hunt, 457 S.E.2d at 285; Towe, 801 S.W.2d at 43; LaSota, 583 P.2d at 

237-38.

¶23 Here, we reversed Ingraham's first conviction based, in part, on our conclusion that 

the State's drug prescription evidence was improperly admitted because the State failed to 

establish a nexus between the presence of the drugs in Ingraham's blood and urine and his 

ability to drive a vehicle on the night of the accident It is this improperly admitted 

evidence which, according to Ingraham, compelled him to testify in the first trial and 

precludes the use of that testimony in a future trial. However, our holding that the drug 

prescription evidence was improperly admitted was based solely on evidentiary principles 

and not on a determination that the evidence had been obtained illegally. Consequently, 

Harrison does not preclude the use of Ingraham's prior trial testimony in a new trial.

¶24 Ingraham contends that there is a "split of authority" regarding whether the Harrison 

rationale applies only in cases where the evidence compelling the defendant to testify was 

illegally obtained in the first instance. He cites several cases which he asserts stand for the 

proposition that Harrison applies in any situation where the evidence compelling the 

defendant's testimony infringes upon the defendant's right to a fair trial, regardless of 

whether the evidence was illegally obtained. Thus, Ingraham urges us to conclude that, 

since we previously determined that the drug prescription evidence was so prejudicial that 

it denied him a fair trial and required a reversal of his conviction, that evidence was 

"illegal" under the Harrison analysis. We are not persuaded by the cases on which 

Ingraham relies.

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¶25 In People v. Duncan (Ill. App. 1988), 527 N.E.2d 1060, the defendant was granted a 

new trial based on the ineffective assistance of his trial counsel. On retrial, the trial court 

ruled that the prosecution could not use the defendant's prior trial testimony in its case-inchief at the second trial. The Illinois Court of Appeals affirmed, stating that the lack of 

effective assistance of counsel "colored the entire proceeding" and "suggests that the 

defendant's statements were not made with any degree of particular advice." Duncan, 527 

N.E.2d at 1062. In other words, the defendant's testimony was not precluded because it 

was compelled by the improper admission of any particular evidence, but because the 

defendant's decision to testify--and concomitant waiver of his Fifth Amendment rights--

was not made voluntarily and knowingly. Duncan did not address the issue presently 

before us.

¶26 In People v. Spencer (N.Y. App. 1996), 641 N.Y.S.2d 910, the defendant's first 

conviction was reversed after an investigation revealed that law enforcement officers in 

the case had falsified evidence and suborned perjured testimony from a witness. Spencer, 

641 N.Y.S.2d at 911. The defendant was convicted again following a retrial of the case in 

which the prosecution entered the defendant's testimony from the first trial into evidence. 

The appellate court determined that, pursuant to Harrison, the trial court erred in allowing 

the testimony because it had been compelled by the admission of evidence which had been 

obtained as the result of illegal police activity. Spencer, 641 N.Y.S.2d at 912. This holding 

is in accord with the interpretation of Harrison by other courts that the evidence 

compelling a defendant's testimony must be both illegally obtained and improperly 

admitted into evidence. See Bohle, 475 F.2d at 875-76; Patton, 688 A.2d at 411; Hunt, 457 

S.E.2d at 285; Towe, 801 S.W.2d at 43; LaSota, 583 P.2d at 237-38. As a result, Spencer 

does not support Ingraham's argument here. 

¶27 The last case on which Ingraham relies is Armentero. In that case, the defendant was 

convicted by a jury of murder in the second degree. One of the prosecution's witnesses at 

the first trial was the defendant's wife. The conviction was reversed on appeal because the 

failure of the defendant's counsel to object to the wife's testimony based on marital 

privilege constituted ineffective assistance of counsel. Armentero, 384 N.W.2d at 100. At 

the second trial, the prosecution attempted to introduce the defendant's testimony from the 

first trial and the defendant objected, asserting that his first trial testimony was compelled 

in response to the improper admission of his wife's testimony. The trial court admitted the 

defendant's prior testimony after excising those portions that directly related to the wife's 

testimony. The defendant again was convicted of second degree murder and again 

appealed. He argued, inter alia, that the trial court erred in admitting his prior testimony. 

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Armentero, 384 N.W.2d at 100.

¶28 In addressing this issue, the Michigan Court of Appeals first set forth the wellestablished rule that a defendant's prior testimony generally is admissible in a subsequent 

proceeding and the Harrison exception to this rule when the defendant's prior testimony is 

compelled by the improper admission of illegally obtained evidence. Armentero, 384 N.

W.2d at 100-01. The Michigan court held that the Harrison exception did not apply in that 

case because, although the wife's testimony had been improperly admitted in the first trial, 

the testimony was not "illegal" in the Harrison sense. Armentero, 384 N.W.2d at 102. In 

so holding, the court set forth its own interpretation of what the United States Supreme 

Court meant by "illegal evidence":

The application of the Harrison exception to the general rule of allowing into 

evidence a defendant's prior testimony depends upon the existence of evidence 

which is illegal in one of . . . two ways . . . . The evidence impelling the defendant's 

prior testimony must infringe upon a basic constitutional value (such as the Fifth 

Amendment right to be free from being compelled to incriminate oneself), or it must 

threaten the credibility of the verdict, because of the unreliability of the evidence 

(such as unlawfully obtained confessions), thus infringing upon the defendant's 

constitutional right to a fair trial.

By defining "illegal" evidence in this way, the application of the Harrison exception 

is not restricted to situations where police misconduct has produced the evidence 

that impels defendant's prior testimony. Such a narrow limitation of Harrison to the 

traditional "fruits of the poisonous tree" doctrine is not warranted . . . . Harrison is 

only limited to situations where the evidence impelling a defendant's prior testimony 

is illegal in the sense that it infringes upon basic constitutional values or, to put it 

another way, upon a defendant's right to a fair trial.

Armentero, 384 N.W.2d at 101-02. Notwithstanding the Michigan court's willingness to extend the 

Harrison doctrine to situations other than where the underlying evidence compelling a defendant's 

testimony was illegally obtained by law enforcement misconduct, the court held that the defendant's 

prior testimony was admissible because admission of the wife's testimony neither infringed on the 

defendant's basic constitutional rights nor was unreliable evidence which denied the defendant a fair 

trial. Armentero, 384 N.W.2d at 102.

¶29 Ingraham relies on the above-quoted language from Armentero in urging us to 

similarly extend the Harrison rationale to apply in situations other than where the 

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underlying evidence at issue was obtained via unconstitutional law enforcement practices. 

He argues that, because we held that the State's prescription medication evidence was 

improperly admitted and was so prejudicial that it denied him a fair trial and required a 

reversal of his conviction, the evidence was "illegal" under the Armentero interpretation of 

Harrison. Consequently, according to Ingraham, his first trial testimony cannot be used in 

the second trial because he was compelled to testify in response to "illegal" evidence.

¶30 We decline to adopt the Armentero analysis. Despite Ingraham's contention that there 

is a "split of authority" as to the extent of Harrison's application, he does not cite--nor have 

we found--any other jurisdiction which has relied on Armentero for its interpretation of 

Harrison or which similarly extends the Harrison rationale. To the contrary, as we 

observed above, a number of jurisdictions expressly have limited Harrison to those 

situations where the evidence compelling a defendant's testimony was illegally obtained 

through unconstitutional law enforcement conduct. See Bohle, 475 F.2d at 875-76; Patton, 

688 A.2d at 411; Hunt, 457 S.E.2d at 285; Towe, 801 S.W.2d at 43; LaSota, 583 P.2d at 

237-38. This limitation on Harrison's applicability is appropriate. The Supreme Court's 

holding that prior testimony is inadmissible in a later proceeding only when it was 

compelled by the admission of evidence both illegally obtained and improperly admitted 

was based on application of the exclusionary rule which requires suppression of any 

evidence which emanates from underlying evidence which is obtained in violation of a 

defendant's constitutional rights. See Harrison, 392 U.S. at 222, 88 S.Ct. at 2010, 20 L.

Ed.2d at 1051. The Supreme Court's Harrison holding having been based on the "fruits of 

the poisonous tree" doctrine, we conclude that Harrison is properly limited to that 

application.

¶31 Finally, in his supplemental brief, Ingraham contends that we should hold his prior 

testimony inadmissible in the second trial based on Article II, Section 25 of the Montana 

Constitution, which provides that "[n]o person shall be compelled to testify against 

himself in a criminal proceeding . . . ." In essence, he urges us to interpret Montana's 

Constitution as providing broader protection than that provided by the Fifth Amendment 

to the United States Constitution. However, Ingraham provides no analysis or citation to 

legal authority in support of the proposition that Montana's constitutional right to be free 

from self-incrimination is broader than the corresponding federal constitutional right. "A 

party's arguments must be supported with citation to legal authority and, where no 

authority is cited, we will not address the arguments." State v. Anderson, 1999 MT 60, ¶ 

21, 293 Mont. 490, ¶ 21, 977 P.2d 983, ¶ 21 (citations omitted). Consequently, we decline 

to address Ingraham's argument here.

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¶32 We conclude that the District Court's determination that Harrison precludes the State's 

use of Ingraham's first trial testimony during its case-in-chief on retrial is erroneous. As a 

result, we hold that the District Court abused its discretion in granting Ingraham's motion 

in limine and precluding the State from using Ingraham's testimony in the first trial during 

its case-in-chief at the second trial.

¶33 Reversed and remanded for further proceedings.

/S/ KARLA M. GRAY

We concur:

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER 

/S/ RICHARD A. SIMONTON 

Judge of the District Court, 

sitting for Justice Terry N. Trieweiler

Justice W. William Leaphart, dissenting.

¶34 I concur with the Court's conclusion that § 46-16-701, MCA, does not preclude the 

State from using Ingraham's testimony from the first trial during its case-in-chief at the 

retrial of this case.

¶35 I dissent from the Court's conclusion that use of his first trial testimony in his second 

trial would not violate his constitutional right to be free from being compelled to testify 

against himself.

¶36 In making his constitutional argument, Ingraham invokes the United States Supreme 

Court decision in United States v. Harrison (1968), 392 U.S. 219, 88 S.Ct. 2008, 20 L.

Ed.2d 1047. In Harrison, the United States Supreme Court posed the following: "The 

question is not whether the petitioner made a knowing decision to testify, but why." 

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Harrison, 392 U.S. at 223, 88 S.Ct. at 2010, 20 L.Ed.2d at 1052. The Court held that since 

Harrison's testimony in the first trial was compelled by the introduction of illegally 

obtained confessions, that testimony was inadmissible in a later trial. Harrison, 392 U.S. 

at 226, 88 S.Ct. at 2012, 20 L.Ed.2d at 1053.

¶37 The State of Montana argues, and this Court now agrees, that the Harrison rule is 

applicable only to situations where the defendant testifies in response to evidence which 

was both illegally obtained and improperly introduced. Although Harrison involved a fact 

situation where illegally obtained confessions were improperly admitted into evidence, 

thus compelling Harrison to take the stand, I fail to see why the rationale of the Harrison

ruling should be restricted to that limited scenario. 

¶38 As the United States Supreme Court noted, the pivotal question is "why" did the 

defendant take the stand. If he was compelled to respond to improperly admitted evidence 

then his decision was not "voluntary" and he was denied a fair trial. Although the 

improper admission of illegally obtained evidence perhaps represents the strongest basis 

for the Harrison ruling, it is not, by any means, the only basis. A defendant who is 

confronted with improperly admitted evidence may be compelled to take the stand to rebut 

that evidence irrespective of whether the evidence was illegally obtained. For example, in 

violation of Rule 609, M.R.Evid., the State may have introduced evidence that the 

defendant had been convicted of a crime; it may have offered evidence of prior wrongs or 

acts to show that the defendant acted in conformity therewith, in violation of Rule 404, M.

R.Evid.; it may have improperly introduced hearsay evidence in violation of Rule 802, M.

R.Evid., or, as here, the State may have introduced irrelevant and highly prejudicial 

evidence in violation of Rule 402, M.R.Evid. None of the above examples involve 

illegally obtained evidence. Nevertheless, a defendant who would not otherwise have 

chosen to testify, when confronted with such improper evidence, may be compelled to 

take the stand and respond. Under such circumstances, it cannot be said that his or her 

choice to testify was voluntarily made. Having been compelled to take the stand by the 

introduction of improperly admitted evidence, the defendant is denied a fair trial. 

¶39 The Court cites a number of cases from federal and state courts which have held that 

the Harrison rationale only applies where the evidence has been both illegally obtained 

and improperly admitted. However in each of these decisions, the Court does nothing 

more than recite the fact that the Harrison decision involved illegally obtained confessions 

and that no other court has extended the Harrison rationale to "mere evidentiary errors." 

United States v. Bohle (2nd Cir. 1973), 475 F.2d 872, 875-76 ("[w]e see no reason to 

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extend the 'fruits' doctrine to testimony 'impelled' by mere evidentiary hearsay error, as 

distinct from unconstitutional police practices"). The Bohle court determined that the 

defendant had testified before the questionable evidence had been introduced. Thus, even 

if Harrison were to apply, the government met its burden of showing that its evidence did 

not induce the defendant's testimony. Patton v. U.S. (D.C. App. 1997), 688 A.2d 408, 411 

("[w]e know of no case in which a court has excluded, under the doctrine of Harrison IV, 

testimony said to have been induced by an incorrect evidentiary ruling"); State v. Hunt (N.

C. 1994), 457 S.E.2d 276, 285 (even if testimony at first trial were induced by 

inadmissible evidence rather than unconstitutionally obtained evidence, the Harrison

exception would not apply); Towe v. State (Ark. 1990), 801 S.W.2d 42, 43 (concluding 

that Harrison is inapplicable to routine evidentiary rulings); State ex rel. LaSota v. 

Corcoran (Ariz. 1978), 583 P.2d 229, 237-38 (given the Supreme Court's reliance on "fruit 

of the poisonous tree doctrine," the Harrison rationale cannot be applied to evidence 

which was not illegally obtained). None of the decisions cited by the Court engaged in any 

independent analysis as to why the Supreme Court's concern with compelled testimony 

would not apply where a defendant is compelled to respond to improperly admitted 

evidence, regardless of whether that evidence was illegally obtained. 

¶40 The above decisions all assume that the Harrison rationale is nothing more than an 

extension of the "fruit of the poisonous tree" doctrine. Although that doctrine is certainly 

part of the Supreme Court's reasoning, it is not the sole basis for its decision. There is an 

equally grave concern with the government using inadmissible evidence to force a 

defendant into taking the witness stand, thereby forfeiting his/her constitutional right to 

remain silent. 

¶41 The ultimate inquiry is not whether there was impermissible police activity, but 

whether the confession was voluntary. State v. Lenon (1977), 174 Mont. 264, 271, 570 

P.2d 901, 906. Although impermissible police conduct certainly undermines a person's 

volition, it is not the sine qua non of coercion. A defendant who is confronted at trial with 

the introduction of evidence of prior convictions, prior bad acts, irrelevant and prejudicial 

evidence or hearsay testimony may be under as much if not more compulsion to forego his 

constitutional right to remain silent and to testify when he would not otherwise have done 

so. When he or she testifies under such coercive circumstances, the resulting testimony 

cannot be deemed to have been voluntarily given. 

¶42 In Schneckloth v. Bustamonte (1973), 412 U.S. 218, 225-26, 93 S.Ct. 2041, 2046, 36 

L.Ed.2d 854, 861, the United States Supreme Court recognized that:

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"[V]oluntariness" has reflected an accommodation of the complex of values 

implicated in police questioning of a suspect. At one end of the spectrum is the 

acknowledged need for police questioning as a tool for the effective enforcement of 

criminal laws. . . . At the other end of the spectrum is the set of values reflecting 

society's deeply felt belief that the criminal law cannot be used as an instrument of 

unfairness . . . . [Citations omitted.]

¶43 I would liken Ingraham's first trial testimony to a confession which was obtained 

under undue influence. If, despite the improper introduction of irrelevant and highly 

prejudicial evidence in his first trial, Ingraham's coerced testimony can be used against 

him in a second trial, it must be said that the criminal law (the rules of evidence) have 

been used as an instrument of unfairness. 

¶44 The distinction between a case where the evidence was both illegally obtained and 

improperly admitted and a case in which evidence is only improperly admitted is a 

distinction without a difference. Both may result in compelled testimony. I would hold 

that improperly admitted evidence alone is sufficient to trigger the Harrison rationale and 

require the court to determine whether the evidentiary error was so prejudicial that it can 

be deemed to have been the impetus behind the defendant's decision to testify. If the 

record shows that the defendant would not have taken the stand but for the improper 

evidence, then his testimony should not be admissible in a subsequent trial.

¶45 I would affirm the decision of the District Court and hold that the use of Ingraham's 

testimony in the second trial would violate his right to remain silent as guaranteed by the 

Fifth Amendment to the United States Constitution and Article II, Section 25 of the 

Montana Constitution. 

/S/ W. WILLIAM LEAPHART

Justice James C. Nelson and the District Court Judge Susan P. Watters join in the 

foregoing dissenting opinion.

/S/ JAMES C. NELSON

/S/ SUSAN P. WATTERS

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Judge of the District Court, 

sitting for Chief Justice J. A. Turnage 

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