No. 82-438 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsNOLAN T. DANIELS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and For the County of Beaverhead, 

The Honorable Frank E. Blair, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Leaphart Law Firm; W. William Leaphart argued, 

Helena, Montana 

Schulz, Davis & Warren; John Warren argued, 

Dillon, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Patricia J. Schaeffer, Asst. Atty. General, Helena 

W. G. Gilbert, 111, County Attorney, Dillon, Montana 

Submitted: January 9, 1984 

Decided: May 15, 1984 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the - Court. 

We reverse for a new trial the judgment of conviction of 

Nolan T. Daniels for mitigated deliberate homicide following 

jury trial in Beaverhead County, Fifth Judicial District. 

Nolan T. Daniels, a 43-year-old ranch hand, had lived in 

the Beaverhead County area for about ten years, until 1981, 

during which time he did ranch work and tended bar. Jimmy 

John Nolan, the victim in this case, was also a ranch hand 

and a resid-ent of the Beaverhead County area at the time of 

the shooting. In previous years, Daniels and Jimmy John had 

crossed paths, sometimes to express indifferent or hostile 

feelings for one another. Their animosity was well known in 

the community. 

In April 1981, Daniels moved to Cutbank, Montana, to 

work for William Rumney. There he injured his foot while 

shoeing horses, and taking time off he headed for St. Mary's 

to pick up a friend, Mike Smith. Daniels and Smith traveled 

south to the Dillon area in Daniels' Lincoln Continental. 

They spent June 5 and 6, 1981, barhopping in Dillon. 

Our statement of what occurred on June 7 is basically a 

combination of what was described by Scott Tarver and Nolan 

Daniels. On Sunday, June 7, Daniels spent the morning 

looking for Mike Smith as they had become separated the 

evening before. Daniels met Scott Tarver, an acquaintance, 

in a downtown Dillon bar. The two decided to go to Dell for 

a roping event. Tarver, who had been drinking since early 

morning (his not unusual custom), bought a fifth of whiskey 

for the trip. 
As they drove to Dell, Daniels and Tarver discussed 

Daniels' involvement in a fight which took place 

approximately six months earlier in Dell. According to 

Daniels, Tarver then asked Daniels if he had any guns, making 

some comment about his willingness to protect Daniels if the 

need arose. Daniels gave Tarver a .38 pistol which remained 

in the front seat of the car throughout the ensuing incident. 

Once in Dell, the two stopped at the Airport Bar for a 

drink. They had stopped at the Dell Hotel but were refused 

admittance by the bartender, who obviously felt that because 

Jimmy John was inside, Daniels' presence would cause a 

disturbance. At the roping event, Daniels and Tarver met 

another acquaintance who agreed to meet them at the Airport 

Bar. 

When Daniels and Tarver pulled into the parking lot of 

the Dell Airport Bar, Jimmy John Nolan was standing by the 

driver's side of his pickup truck. One witness testified 

that Jimmy John hollered something at Daniels as he drove in. 

Daniels testified that when he saw Jimmy John gesturing at 

him, he stopped his car. Jimmy John's pickup faced the bar 

and the Lincoln Continental was parked approximately 15 feet 

from the truck, angled from the rear of the passenger side of 

the truck. Tarver got out of the Lincoln, and walked to the 

wheel-well area of the truck on the passenger side. Daniels 

got out and approached Jimmy John. Daniels and Jimmy John 

became involved in a physical confrontation or wrestling 

match. At some point, Jimmy John reached for a pair of 

horseshoe nippers from the bed of his truck and struck 

Daniels on the head. The blow lacerated Daniels' scalp and 

cracked his skull causing him to bend over and turn away from 

Jimmy John. Daniels then walked back to his car, and after 
getting his keys from the driver's side of his automobile, 

went to his trunk, and removed a .357 pistol. He walked back 

toward Jimmy John, brought the gun up and started shooting. 

He fired four shots as Jimmy John turned and fell dead. 

After handing the gun to Tarver, Daniels walked into the bar 

where, bleeding profusely, he waited for the ambulance and 

law enforcement officers. 

Daniels claims that as he approached Jimmy John, Jimmy 

John grabbed him and tore a necklace which Daniels was 

wearing from his neck and that he was immediately struck by 

Jimmy John with the horseshoe nippers. Tarverls testimony 

was that the two wrestled for a few moments until, when Jimmy 

John got winded he pushed Daniels away, saying he had had 

enough. Tarver said that Daniels came back with an open 

pocket knife toward Jimmy John and that Jimmy John struck 

Daniels over the head then with the horseshoe nippers. The 

pocketknife was never found nor introduced into evidence. 

We will bring out other facts where pertinent to the 

issues. 

I. 

The issue on which we reverse for a new trial is Greyson 

Phipps' testimony on rebuttal for the State. These 

statements were made by Daniels to Tarver just before they 

were getting out of the Lincoln automobile when they sighted 

Jimmy John outside the bar. 

This case came on for trial on July 13, 1982. The first 

day was spent in picking the jury and in discussions between 

counsel before the court in chambers. On the second day, 

July 14, the State opened its case-in-chief. It called 

Tarver as a witness. When he got to the point in his 

testimony where he described leaving the automobile in which 
he and Daniels came to the bar where they saw Jimmy John, he 

testified: 

"Q. Did you say anything to the Defendant when you 

saw Jimmy John? A. Yeah. 

"Q. What did you say? A. I said I'd buy him a 

beer. I wanted to talk to him, I'd buy him a beer. 

"Q. Now who did you say that to? A. Nolan. 

[Daniels] 

"Q. Did Nolan say anything to you? A. I don't 

know. Probably did. I might have said something 

to him back, but I don't really remember it, 

because I was half in the car and half out. 

"Q. How do you remember that this conversation 

took place? A. What do you mean, how do I 

remember it? 

"Q. How do you remember if Nolan said something to 

you and you said something to him. A. Cause I was 

half in the car and half out. I turned around and 

looked at Nolan and said something and he got out. 

"Q. Now what did the defendant do when you got out 

of the car. A. Who, Nolan? 

"Q. Yes. A. Well he was sitting in the car when 

I got out of the car." 

When the examination and cross-examination of Tarver was 

completed Deputy Greyson Phipps took the stand. In no part 

of his examination was he asked whether Tarver had told him 

anything that Daniels may have said to Tarver as they were 

getting out of the car to meet Jimmy John. 

Daniels' case-in-chief began the next day, July 15. The 

defendant Nolan T. Daniels testified on his own behalf and 

was cross-examined by the State. In no part of Daniels' 

examination or cross-examination was he asked whether he had 

made a statement to Tarver as they were getting out of the 

car upon seeing Jimmy John. The defense then called Deputy 

Greyson Phipps, who testified to an earlier threat that Jimmy 

John had made against Daniels and he was cross-examined on 

that subject. On the morning of July 16, the defense rested 
and the State called Greyson Phipps as a rebuttal witness. 

The following occurred: 

"Q. Now when you arrived at the Airport Bar, you 

saw Scott Tarver? A. Yes, sir. 

"Q. And did you question him about what happened. 

A. Yes, I was trying to find out what had taken 

place. 

"Q. Did he relate to you a conversation that he 

and the Defend.ant, Nolan Daniels, had just as he 

and Daniels were getting out of Daniels' car. A. 

Yes. 

"Mr. Leaphart: Objection, Your Honor. It's 

calling for a hearsay. 

"Mr. Gilbert 111: Your Honor, it's offered--Tamer 

has testified that he remembers the conversation 

and he remembers Daniels saying something to him, 

he remembers getting out of the car with the door 

open, half out and saying something back. He's 

testified he told the Sheriff, but he said couldn't 

remember what was said. 

"Mr. Leapha-rt: Your Honor, Mr. Tarver is the 

State's witness, and it can't be impeaching him, 

nor can they corroborate him on the rebuttal. And 

furthermore, Mr. Tarver's testimony, as I 

understood it, was that he couldn't remember what 

was said, if anything. 

"Mr. Gilbert 111: That establishes the foundation, 

Your Honor, we can impeach our own witness under 

the new rules. 

"THE COURT: Objection is overruled. 

"Q. What did Tarver tell you the Defendant said as 

he was about to get out of the car? A. Well, in 

my officer's report there that I wrote shortly 

afterwards, he stated that Mr. Daniels had said 

that had a score to settle and Mr. Tarver stated 

that he'd better be careful, the big Indian will 

whip your ass. " 

At the time that the rebuttal testimony was offered and 

admitted, Tarver had already been excused from the trial, 

defense counsel consenting to his excusal upon request of the 

county attorney. There is no testimony in the record as to 

what Tarver told the sheriff or that he could not remember 

what was said to the sheriff. 
Daniels' defense during the trial was justification or 

self-defense. His testimony about the incident had indicated 

that he had gotten out of the automobile, went to Jimmy John, 

who grappled with him, tore off his necklace, and then struck 

him with the nippers. Daniels denied that he used any knife 

in the incident. In connection with his defense of 

self-defense, the issue of whether Daniels was an aggressor 

was, of course, important. 

When Tarver first testified on July 14, during the 

trial, as part of the State's case-in-chief, he clearly made 

no statements that Daniels had said anything to him as they 

were getting out of the car to meet Jimmy John. Rather, he 

testified that he, Tarver, told Daniels, that Tarver would 

buy Jimmy John a beer. At that point of the trial, the State 

could clearly impeach him, or lay a foundation for later 

testimony by Greyson Phipps, by asking Tarver if he had not 

made such a statement to the deputy sheriff. Rule 607, 

M.R.Evid. This was not done. When Greyson Phipps came to 

the stand, immediately following Tarver's testimony, the 

State made no attempt then to elicit from Phipps what Tarver 

had told him, although the statement made to Phipps by Tarver 

would properly be a part of the State's case-in-chief. When 

the defendant was presenting his case, neither the defendant 

Daniels, nor the witness Phipps was asked anything about 

Daniels having made a statement to Tarver which would tend to 

characterize Daniels as an aggressor in the incident. 

Rebuttal testimony is proper only if it tends to counteract 

new matter offered by the adverse party. State v. Williams 

(1979), 185 Mont. 140, 153, 604 P.2d 1224, 1231; Gustafson v. 

Northern Pacific Railway Company (1960), 137 Mont. 154, 164, 

351 P.2d 212, 217. Phipps' testimony was therefore improper 
rebuttal testimony, but that was not the objection made to 

the District Court. Undoubtedly the court could allow in its 

discretion such rebuttal testimony. McGee v. Burlington 

Northern, Inc. (1977), 174 Mont. 466, 571 ~.2d 784. The 

objection made by the defendant to Phipps' rebuttal testimony 

was that it was hearsay. 

We must examine the testimony offered by Phipps to 

determine its nature. Phipps, on the stand, is testifying to 

what Tarver, following the shooting, told him that Daniels 

said prior to the shooting, as they were getting out of the 

car. This is hearsay within hearsay. Rule 805, M.R.Evid., 

provides that hearsay within hearsay is not excluded under 

the hearsay rule -- if each part of a combined statement 

conforms with an exception to the hearsay rule as provided in 

"these rules." 

As a general rule, hearsay is not admissible: 

"Rule 802. Hearsay rule. Hearsay is not 

admissible except as otherwise provided by statute, 

these rules, or other rules applicable in the 

courts of this state." 

Hearsay is defined under Rule 801(c), M.R.Evid. as: 

". . . a statement, other than one made by the declarant 

while testifying at the trial or hearing, offered in evidence 

to prove the truth of the matter asserted." 

A "declarant" is defined as the person who makes the 

statement. Rule 801 (b) , M.R.Evid. Thus, in the case before 

us, as to the statement made to Phipps, Tarver is the 

declarant, and as to the statement purported to have been 

made to Tarver, Daniels is the declarant. 

Irrespective of the broad definition of hearsay in Rule 

801(c), M.R.Evid., above, a statement which otherwise fits 
within this definition is not hearsay if it comes within one 

of the exceptions. 

The exception relied upon in this case by the State for 

the admission of Phipps' testimony of Tarvers' statement is 

Rule 801(d)(1), M.R.Evid. That exception provides that a 

statement is not hearsay if "[tlhe declarant testifies at the 

trial or hearing and is subject to cross-examination 

concerning the statement, and the statement is (A) 

inconsistent with his testimony . . .I1 

We have noted above that in Rule 805, hearsay included 

within hearsay is not excluded if each part of a combined 

statement conforms with an exception to the hearsay rule. If 

we regard the statement Tarver told the deputy that Daniels 

had told him "I've got a score to settle . . .", the 

declarant for that statement is Tarver. Under Rule 

801(d) (1), the statement would not be hearsay if l1[t]he 

declarant testifies at the trial or hearing and is subject to 

cross-examination concerning the statement . . ." 

In this case Tarver had been excused by the court as a 

witness in the cause on the evening prior to the offer of the 

rebuttal testimony by the State. He therefore was not 

subject to cross-examination concerning the statement. This 

is one of the requisites to form an exception to the hearsay 

rule for the admission of the Tarverls statement, since 

Tarver is the declarant. Admission of Phipps' testimony as 

to Tarverls statement was therefore improper. Since Tarver 

was not present for cross-examination, his statement was 

inadmissible because the exception does not apply. Rule 

801(d) (1) , M.R.Evid. 

Because we determine that under the Montana Rules of 

Evidence the statement was not admissible in the 
circumstances here, we need not decide whether the admission 

of Phipps' testimony amounted to a denial of Daniels' right 

to confrontation of witnesses against him, since plainly the 

absence of Tarver made his cross-examination impossible. The 

United States Supreme Court has not settled this point, 

sometimes holding that the admission of out-of-court 

statements violates a party's right to confrontation under 

the Sixth Amendment, and at other times holding that 

admission of such statements did not violate that amendment. 

See discussion in 11 Moore's Federal Practice $ 800.02[2] (2d 

ed. 1976). 

Hzving determined that error was committed in the 

admission of Phipps' testimony, we must then determine 

whether the error may have been harmless. That, of course, 

depends on whether the admission of the statement causes 

prejudice to the defendant. This Court must be able to 

state, in cases of error which we regard as harmless, that 

beyond a reasonable doubt the error did not affect the 

outcome of the trial. Chapman v. State of California (1967), 

386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; State v. Sandstrom 

(1979), 184 Mont. 391, 603 P.2d 244. Daniels' self-defense 

position made it imperative that he establish that he was not 

the aggressor in bringing about the death of Jimmy John. 

Phipps' testimony if accepted at face value would make 

Daniels definitely an aggressor in stepping out of the 

automobile to meet Jimmy John. Effectively, his defense of 

self-defense was considerably weakened, if not destroyed by 

Phipps' testimony. Obviously the purpose of the offer of 

Phipps' testimony was to prove the truth of the matter 

asserted in the statement, that Daniels had a score to settle 

with Jimmy John. 
On this ground, therefore, this cause must be reversed 

and remanded for a new trial. 

11. 

Daniels argues he was denied a speedy trial here. 

Jimmy John's death occurred on June 7, 1981. Daniels 

was jailed until the 37th day, July 14, when he was released 

on bail. He had been arraigned on June 30, 1981, after a 

delay in appearance by his retained counsel. On November 24, 

the 170th day from the date of the shooting, the court set 

trial for January 18, 1982. On January 12, 1982, the 219th 

day from the date of the shooting, defense counsel requested 

continuance of the trial because he was to undergo eye 

surgery. The court reset the trial for February 23, 1982. 

On February 26, 1982, the 265st day from the shooting, 

Daniels moved to dismiss for denial of a speedy trial. The 

motion was heard by the court on March 2, 1982, but meanwhile 

the trial was reset to March 22, 1982. On March 1, 1982, the 

268th day from the day of the shooting, defense moved the 

court to depose Tarver, which had not been done before. The 

trial was reset to March 23, 1982. 

After the deposition of Tarver was taken on March 2, 

1982, it appeared that defense counsel might be required to 

testify for the purpose of impeaching Tarver based on prior 

statements he had made to them. The State moved to 

disqualify defense counsel on the grounds that they might he 

witnesses in the case. The court disqualified counsel on 

March 23, 1982. Eventually the court had to appoint further 

counsel for the defendant as an indigent on May 11, 1982. 

Then the trial setting was changed to July 6, 1982, and 

thereafter, by the District Court sua sponte, to July 13, 

1982. 
A total of 401 days elapsed between the day of the 

shooting and the date of the commencement of the trial. 

Daniels was not ready for trial as late as March 1, 1982, 

when it was necessary to take the deposition of the witness 

Tarver. Continuances had been requested by defense prior to 

that. Tarver's second motion for dismissal on speedy trial 

grounds was made on June 11, 1982 and was by the court 

denied. 

In our opinion, the time lapse was largely attributable 

to Daniels, and insufficient time elapsed chargeable to the 

State to trigger the analysis required under Barker v. Wingo 

(1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. 

111. 

Daniels raises issues in this case related to 

instructions which we must discuss for purposes of retrial. 

Daniels was charged by the State with deliberate 

homicide. The jury convicted him of mitigated deliberate 

homicide, a lesser-included crime. Daniels had asserted the 

affirmative defense of justification or self-defense. It was 

necessary therefore for the District Court to guide the jury 

with instructions on deliberate homicide, section 45-5-102, 

MCA, mitigated deliberate homicide, section 45-5-103, MCA, 

and justifiable use of force, section 45-3-102, MCA. The 

court also instructed on negligent homicide, a further 

lesser-included crime. 

Daniels asserts that the jury should have been 

instructed that the influence of extreme mental or emotional 

stress for which there is reasonable explanation or excuse is 

an element of mitigated deliberate homicide that must be 

proved by the State; and that when self-defense is an 

affirmative defense, the State has a duty to prove beyond a 
reasonable doubt the absence - of justification on the part of 

the defendant. 

We held in the recent case State v. Gratzer (NO. 83-157, 

Decided April 24, 1984), that the influence of extreme mental. 

or emotional stress, contained in the definition of mitigated 

deliberate homicide in (section 45-5-103, MCA), is not an 

element of the crime which the State is required to prove 

beyond a reasonable doubt. We said: 

"It is the duty of the State in a criminal 

prosecution to prove beyond a reasonable doubt 

every element of the crime charged. Does this mean 

therefore that the influence of mental or emotional 

stress is an element that the State must prove in 

order to sustain a conviction of mitigated 

deliberate homicide as a lesser-included crime? We 

hold not. Under the statutory scheme defining 

homicide in the Montana Criminal Code of 1973, all 

purposely and knowingly committed homicides are 

deliberate unless committed under the influence of 

extreme mental or emotional stress. In defining 

the offense of mitigated deliberate homicide, the 

legislature did not create an additional element 

for the State to prove relating to mental or 

emotional stress. It simply stated the kind of 

mitigation that would reduce a deliberate homicide 

to a mitigated deliberate homicide. " 

We further held that neither the State nor the defendant 

had the burden of proof as to mitigating circumstances, 

although either party may assume such burden, and that we 

would leave it to the jury to "examine the evidence and, if 

mitigating circumsta.nces appeared in a killing purposely and 

knowingly committed by the defendant," the jury would then 

find the defendant guilty of mitigated deliberate homicide. 

Gratzer, supra. 

This case, however, differs from Gratzer in that here 

the defendant raised the affirmative defense of 

justification, according to sections 45-3-102, MCA and 

46-15-301 (2) (a) , MCA. As an affirmative defense, justifiable 

use of force in defense of person under section 45-3-102, 
would entitle Daniels to an acquittal, as distinguished from 

the result of influence of mental and emotional stress under 

section 45-5-1-03, which would simply reduce deliberate 

homicide to mitigated deliberate homicide. As to the 

affirmative defense of self-defense Daniels had the burden of 

proof. 

How does the defense of justifiable use of force affect 

the duty of the State to prove beyond a reasonable doubt 

every element of the crime charged? Some uncertainty exists 

in the cases. In State v. Azure (1979), 181 Mont. 47, 541 

591 P.2d 1125, 1130, we stated that the jury should - be 

instructed that the State must prove the absence of 

justification beyond a reasonable doubt, but sustained the 

refusal of an. instruction to that effect because other 

instructions had covered the subject. Subsequently, in State 

v. Graves (Mont. 1981), 622 P.2d 203, 210, 38 St.Rep. 9, 

15-16, we said: 

"This Court has been faced with numerous cases 

challenging self-defense instructions in recent 

years. As a result, Montana law in this regard has 

become well-settled. Section 45-3-102, MCA, 

defines 'justifiable use of force' and section 

45-3-115, MCA, provides that it is an affirmative 

defense. Since it is an affirmative defense, 

rather than an element of deliberate homicide or 

mitigated deliberate homicide, there is no 

constitutional prohibition against placing the 

burden of proof upon the defendant. Patterson v. 

New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 

L.E.2d 281. However, '[tlhe law in Montana is that 

although the burden of persuasion remains on the 

State. in order to avail himself of the affirmative 

defense of self-defense, the defendant has the 

burden of producinq sufficient evidence on the 

issues to raise a reasonable doubt of his guilt. '" 

(Citing cases) In State v. Azure (1979), Mont., 

591 P.2d 1125, 1130, 36 St.Rep. 514, 518, we stated 

that an instruction stating the prosecution must 

prove the absence of justification beyond a 

reasonable doubt is a correct statement of the 

law." (Emphasis in original.) 
In State v. Lundblade (Mont. 1981), 625 P.2d 545, 38 St.Rep. 

441, we held that it is the duty of the State to prove each 

element of the offense charged. From these cases the true 

rule can be drawn: The State has the burden of proving 

beyond a reasonable doubt every element of the offense 

charged, or any lesser-included crime within such charge; the 

defendant if he raises an affirmative defense has the burden 

of producing sufficient evidence on the issue to raise a 

reasonable doubt of his guilt, in this case a reasonable 

doubt as to his guilt of deliberate homicide or of mitigated 

deliberate homicide. 

We held in Gratzer that the absence of justifiable use 

of force was not an element of the crime of deliberate 

homicide which the State had to prove. The jury therefore 

should not be told that t.he prosecution must prove the 

absence of justification beyond a reasonable doubt. It is 

sufficient for these purposes if the trial court instructs 

the jury that the defendant has the burden of producing 

sufficient evidence on the issues to raise a reasonable doubt 

of his guilt when the defendant raises justifiable use of 

force as an affirmative defense. In this case, the District 

Court instructed the jury to that effect. 

A further instructional error claimed by Daniels relates 

to the instructions on justifiable use of force. The 

District Court instructed the jury as to use of force in 

defense of person in accordance with the statute, section 

45-3-102, MCA, and gave a further instruction outlining the 

necessity for reasonableness in the use of such justifiable 

force. However, he defined the word "imminent" which appears 

in section 45-3-102, MCA, as follows: 
"'Imminent' means threatening to occur immediately, 

near at hand, impending; as used in relation to 

self-defense, it means such an appearance of 

threatening or impending injury as would put a 

reasonable and prudent man to his instant defense." 

This instruction limited improperly the purpose and 

intent of the word "imminent" in section 45-3-102, MCA, which 

reads as follows: 

"Use -- of force in defense of person. A person is 

justified in t use of force or threat to use 

force against another when and to the extent that 

he reasonably believes that such conduct is 

necessary to defend himself or another against such 

other's imminent use of unlawful force . . ." 

(Emphasis added.) 

In the quoted statute, section 45-3-102, MCA, the word 

"imminent" applies to the assailant, the aggressor; the 

person imminently threatened is entitled to use force against 

the aggressor "when and to the extent that he reasonably 

believes that such conduct is necessary." The effect of the 

instruction in this case defining "imminent" is that the 

person defendinq himself must act instantly. This is a 

limitation not to be found in the statute defining 

justifiable use of force. The threatened person is entitled 

to act "when and to the extent that he reasonably believes 

that such conduct is necessary. " (Emphasis added. ) This 

may or may not be instantly. It depends upon the 

reasonableness of the circumstances. 

IV. 

The District Court granted a motion in 1-imine on behalf 

of the State and refused the admission into evidence of the 

sheriff's records of an earlier incident when Jimmy John, 

knowing or apparently knowing that Daniels was within 

hearing, allowed a gun to drop out of his pocket while Jimmy 

John was sitting at the bar and Jimmy John, in retrieving the 
pistol, asked somebody nearby whether the pistol was big 

enough to kill Daniels. The incident was reported to the 

sheriff by Daniels. Statements were taken from witnesses. 

Eventually Daniels received a letter from the county attorney 

informing him that although Jimmy John did threaten to shoot 

Daniels, " . . . it is not apparent that he ever took any 

affirmative action in that direction." 

The District Court allowed testimony in the record to 

the effect that the earlier incident had occurred and had 

been reported to the sheriff but refused any testimony 

respecting the outcome of the report, including the county 

attorney's letter. There was testimony that nothing further 

had been done by the county. Daniels claims that the 

sheriff's records and the letter would help establish 

Daniels' frame of mind in defending himself when the incident 

with Jimmy John occurred. 

Technical errors in rulings of evidence are not grounds 

for reversal and in order to allow reversal the ruling must 

affect substantial rights. State v. Romero (1973), 161 Mont. 

333, 505 P.2d 1207; Rule 103, M.R.Evid. We have stated 

repeatedly that the admission of evidence is a matter of 

discretion for the trial court which will not be disturbed, 

unless a manifest abuse of discretion is shown. 

Since the testimony in this case included the earlier 

incident, Daniels' substantial rights were not affected by 

the refusal of the proffered evidence. Rule 103, M.R.Evid. 

v. 

Daniels objects to the deletion by the trial court of an 

offered instruction which contained a paragraph to the effect 

that the jury could consider the State's failure to call 
witnesses or to produce other evidence shown in the case to 

be in existence and available. 

Daniels bases his right to this paragraph the 

instruction on the grounds that the State failed to produce 

the knife allegedly used in the incident; it failed to 

produce the .38 pistol allegedly given to Daniels by Tarver, 

and, it failed to produce the revolver which was in the front 

seat of the victim's truck at the time of the fight. The 

State also failed to produce Tarver as a rebuttal witness. 

In civil ca.ses at least, the jury is to be instructed on 

proper occasions that if weak or less satisfactory evidence 

is offered when it appears that stronger more satisfactory 

evidence is within the power of a party, the evidence offered 

should be viewed with distrust. Section 26-1-303(5), MCA. 

That, however, is not the portent of the offered instruction 

here. It went rather to how the jury should weigh and 

consider the evidence. We find no merit in this assignment 

of error. 

VI . 

Finally, Daniels contends that the imposition of an 

"enhanced" penalty under section 46-18-221 (1) , MCA, is a 

violation of the double jeopardy clauses of the federal and 

state constitutions. 

Since this case is now being reversed for new trial, the 

enhancement of Daniels' sentence is moot. Note, however, 

that we settled this question in State v. Davison (Mont. 

1980), 614 P.2d 489, 37 St.Rep. 1135. 

VII. 

Daniels' conviction of mitigated deliberate homicide is 

reversed and the cause remanded to the District Court for a 

new trial. 
We concur: 

ah&&*&. 

Chief Justice 

Justices 
I concur and dissent as follows: 

Although I agree that the trial court erred in 

permitting the testimony of Greyson Phipps, I disagree with 

the way the majority has handled this issue. If I correctly 

understand the majority position it is that Phipps' testimony 

was inadmissible because the declarant Tarver had been 

dismissed from the stand and was not present in the courtroom 

when Phipps testified. The majority quotes Rule 801 (d) (1) 

M.R.Evid. which provides that a statement is not hearsay if 

the declarant testifies at the trial and the offered 

statement is inconsistent with his testimony. The purpose of 

this rule is to allow impeachment of any witness who 

testifies in the case. 

If I understand the majority correctly they would have 

permitted this hearsay statement to be used if Tarver was 

seated out in the courtroom. This is not the law. The 

offered hearsay statement must be inconsistent with, and 

therefore impeach, testimony previously offered by the 

declarant. 

I would rea.ch the same result as the majority for the 

reason that this statement did not impeach Tarver's 

testimony. The closest testimony tending to be inconsistent 

with the offered hearsay is as follows: 

"Q. Did Nolan say anything to you? A. I don't 

know. Probably did. I might have said something 

to him back, but I don't really remember it, 

because I was half in the car and half out." 

To impeach this testimony given by Scott Tarver, the 

State called Greyson Phipps as a rebuttal witness. The 

following testimony was objected to as hearsay: 

"Q. Did he relate to you a conversation that he 

and the Defendant, Nolan Daniels, had just as he 

and Daniels were getting out of Daniels' car. A. 

Yes. 

"Q. What did Tarver tell you the Defendant said as 

he was about to get out of the car? A. Well, in 

my officer's report there that I wrote shortly 

afterwards, he stated that Mr. Daniels had said 

that had a score to settle and Mr. Tarver stated 
that he'd better be careful, the big Indian will 

whip your ass." 

The appropriate hearsay objection was made by defense 

counsel and the court overruled the objection. Before the 

Phipps testimony could be admitted that testimony had to 

directly contradict testimony offered by Tarver. Tarver was 

not asked about the statement. He admitted having a 

conversation when he was getting out of the car. However, 

Tarver's testimony is too general to allow this hearsay to be 

used for impeachment purposes. 

It should also be noted that Phipps did not apparently 

have an independent recollection of what Tarver's statement 

was as Phipps read the statement from his notes. No 

foundation was laid for "past recollection recorded." 

Neither was foundation laid to show that the witness had an 

independent recollection of the statement after having his 

memory refreshed by reference to the notes. Although no 

objection was made on this ground the testimony was 

technically inadmissible as it was given by the witness. 

The majority opinion, in discussing the instruction on 

justifiable use of force, uses language from which I wish to 

dissent. The majority opinion states: 

"As to the affirmative defense of self defense 

Daniels had the burden of proof." 

This is not so. The opinion correctly goes on to say 

that Da.niels had the burden to come forward with evidence 

sufficient to raise a rea.sonable doubt. This is a correct 

statement of the law. Daniels had no burden of proof. 

The majority opinion states: 

"We held in Gratzer that the absence of justifiable 

use of force was not an element of the crime of 

deliberate homicide which the State had to prove." 

Gratzer did not involve justifiable use of force. The 

only issue in Gratzer was whether the court erred in failing 

to instruct with respect to the burden of proof in a 

mitigated deliberate homicide case. Gratzer did not raise 
self defense and therefore the appeal did not involve any 

issue with reference to "justifiable use of force". 

I agree with the majority opinion that the trial court 

in this case correctly instructed the jury that the defendant 

had the burden of producing sufficient evidence on 

"justifiable use of force" so as to raise a reasonable doubt 

of his guilt. The corollary is that, once defendant had 

produced sufficient evidence to raise a reasonable doubt, the 

State had the burden of negating the defense beyond a 

reasonable doubt or the defendant is entitled to an 

acquittal. 

In summary, I would reverse and remand for a new trial 

for the reason that the trial court erred in admitting 

hearsay evidence. In accordance with my dissent in Gratzer I 

would instruct the trial court that, on retrial, the 

defendant is entitled to an instruction that the burden of 

proof remains on the State to negate mitigation beyond a 

reasonable doubt. I would further require the trial court to 

give the same instruction with respect to the burden on the 

State to negate "justifiable use of force". Whether we are 

talking about mitigating mental distress or justifiable use 

of force, the burden is on the defendant to come forward with 

sufficient evidence to raise a reasonable doubt. Thereafter, 

the State has the burden of excluding these propositions 

Mr. Justice Daniel J. Shea: 

Con c rcw&ncL 

I join in the foregoing -6 Mr. Justice Morrison. 
Mr. Justice L. C. Gulbrandson dissenting. 

I respectfully dissent from the holding of the 

majority opinion that the admission of Officer Phipps' 

rebuttal testimony constituted reversible error. 

The majority opinion states: 

"Daniels' self-defense position made it 

imperative that he establish that he was 

not the aggressor in bringing about the 

death of Jimmy John. Phipps' testimony 

if accepted at face value would make 

Daniels definitely an aggressor in 

stepping out of the automobile to meet 

Jimmy John. Effectively, his defense of 

self-defense was considerably weakened, 

if not destroyed by Phipps' testimony." 

The record, in summary, portrays a defendant looking 

for trouble. It is unrebutted that: (1) The defendant, 

anticipating problems, armed his companion, Scott Tarver, 

with a pistol. (2) That the defendant blocked the victim's 

vehicle with his own vehicle. (3) That the victim asked the 

defendant to get out of the way so that he could leave. (4) 

That after the altercation, next to the victim's pickup, the 

defendant walked to the driver's side of his car, attempted 

to reach his car keys through the open window, then opened 

the door and sat down on the front seat. (5) The defendant 

removed the car keys, walked to the rear of his car, 

approximately thirty-seven feet away from the victim. (6) 

The defendant opened the trunk of his car, obtained his Colt 

.357 from a box in the trunk, and walked directly back to 

the victim, firing four shots almost simultaneously. (7) 

That the victim had remained at the side of his pickup. (8) 

That the victim had nothing in his hands. (9) That one 

bullet hit the victim's left shoulder from the front; that 

another bullet entered the middle of the victim's back and 
the injury would have been fatal within five minutes; that a 

third bullet entered the back and passed through the 

victim's heart. (10) That the shots to the victim's back 

were fired within a distance of one to four feet. (11) That 

none of the witnesses characterized the victim as the 

aggressor. 

There was additional testimony, denied by the 

defendant, that (1) the victim had pushed the defendant away 

saying that he didn't want any more trouble with the 

defendant; (2) that the victim stated he wanted to be left 

alone; and (3) that, thereafter, the defendant, with a knife 

in his left hand, came back at the victim, prior to the time 

the victim hit the defendant with the horse shoe nippers. 

In my view, the jury, even without the rebuttal 

testimony of Officer Phipps, would have had to disregard the 

defendant's claim of self-defense. I would, therefore, hold 

that the alleged error was harmless, and would affirm the 

conviction. 

Justice'