No. 82-438 INTHE SUPREME COURT OF THE STATE OF MONTANA 1984

STATE OF MONTANA, Plaintiff and Respondent,

-vsNOLAN T. DANIELS, Defendant and Appellant.

APPEAL FROM: DistrictCourt of the FifthJudicialDistrict, In and For theCounty 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

ClerkMr. Justice John C. Sheehy delivered the Opinion of the

-Court.

We reverse for a new trial the judgmentof convictionof Nolan T. Daniels formitigated deliberate homicide following jury trial in Beaverhead County, Fifth Judicial District. Nolan T. Daniels, a 43-year-old ranchhand,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-entof 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 animositywaswell 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 spentJune 5 and 6,1981,barhopping inDillon. Our statement ofwhat 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 downtownDillonbar. The two decided to go to Dell for

a roping event. Tarver, who had been drinking since early morning (hisnot 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 hiswillingness to protect Daniels if the need arose. Danielsgave Tarver a .38 pistol which remained in the front seatof the car throughoutthe ensuing incident. Once in Dell, the two stopped at theAirport Bar for a drink. They had stopped at the Dell Hotel but were refused admittanceby 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 thatJimmyJohnhollered something atDanielsashe 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 Continentalwasparked approximately 15 feet from the truck,angled from the rear of thepassenger 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 tobend over and turn away from Jimmy John. Daniels then walked back to his car, and aftergetting his keys from the driver's side of his automobile, went tohis 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 enforcementofficers. 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. Tarverlstestimony

was that the two wrestled fora fewmoments 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 issueonwhichwe 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 automobilewhen they sighted JimmyJohn outside thebar. This case cameon for trialonJuly 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 inwhichhe and Daniels came to the bar where they sawJimmy John,he testified: "Q. Did you say anything to theDefendantwhen you sawJimmy John? A. Yeah. "Q. What did you say? A. I said I'd buy him a beer. Iwanted to talk to him, I'd buy him abeer. 

### "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. Howdo you remember ifNolan said something to you andyou said somethingtohim. A. Cause Iwas 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 defendantdowhen yougot out of the car. A. Who,Nolan? "Q. Yes. A. Well he was sitting in the carwhen Igot outof the car." When the examinationand cross-examinationof Tarverwas 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 gettingout of the car tomeet JimmyJohn. Daniels' case-in-chief began the nextday,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 restedand the State called Greyson Phipps as a rebuttal witness. The followingoccurred: "Q. Now when you arrived at the Airport Bar, you saw ScottTarver? A. Yes, sir. "Q. And did you question him aboutwhat 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 fora 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 testifiedhe 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 corroboratehim 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 establishesthe foundation, Your Honor, we can impeach our own witness under the new rules. "THE COURT: Objection is overruled. "Q. What did Tarver tell you theDefendant 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 testimonywas offered and admitted, Tarver had already been excused from the trial, defense counsel consenting tohis 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 whatwas said to the sheriff.Daniels' defense during the trial was justification or self-defense. His testimony about the incidenthad indicated thathe had gotten outof the automobile,went to JimmyJohn, who grappled with him, tore off his necklace,and then struck him with the nippers. Danielsdenied 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 JimmyJohnabeer. At thatpoint 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 Phippsby Tarver would properly be a part of the State's case-in-chief. When the defendantwas presenting his case,neither the defendant Daniels, nor the witness Phipps was asked anything about Daniels having made a statementto Tarver whichwould 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. Statev. Williams

(1979),185Mont. 140, 153, 604P.2d 1224, 1231; Gustafsonv. Northern Pacific Railway Company (1960),137Mont. 154, 164, 351P.2d 212, 217. Phipps'testimonywas therefore improperrebuttal testimony, but that was not the objection made to theDistrictCourt. 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 thedefendant to Phipps' rebuttal testimony

was that itwashearsay. 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 thehearsay rule as provided in "theserules." As a general rule,hearsay is not admissible:

"Rule 802. Hearsay rule. Hearsay is not admissibleexcept as otherwiseprovided 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 orhearing,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 thedeclarant. Irrespectiveof the broad definition of hearsay in Rule 801(c), M.R.Evid., above, a statement which otherwise fitswithin this definition isnothearsay if it comes within one of the exceptions. The exception relied upon in this caseby 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 nothearsay if "[tlhedeclarant testifiesat 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 conformswith an exception to thehearsay 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 testifiesat the trialorhearing 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 Tarverlsstatementwas 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 thecircumstanceshere,we need notdecide whether the admission of Phipps' testimony amounted to a denial of Daniels' right to confrontation of witnesses againsthim, sinceplainly the absenceof Tarvermade 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 statementsdid not violate that amendment. Seediscussion 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, 87S.Ct. 824,17L.Ed.2d 705; Statev. Sandstrom (1979), 184 Mont. 391, 603 P.2d 244. Daniels' self-defense position made it imperative thathe establish thathewas 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, thatDanielshad a score to settle with JimmyJohn.On this ground, therefore, this cause must be reversed and remanded for a new trial.11. Danielsargueshewas denied a speedy trialhere. Jimmy John's death occurred on June 7, 1981. Daniels

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

on bail. He had been arraigned on June 30, 1981, after a delay in appearanceby 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 washeard by the court onMarch 2, 1982,butmeanwhile the trialwas 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 notbeen donebefore. The trialwas reset toMarch 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 theymight he witnesses in the case. The court disqualified counsel on March 23, 1982. Eventually the courthad 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 defenseprior 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 lapsewas largely attributable to Daniels, and insufficient time elapsed chargeable to the State to trigger the analysis required under Barkerv. Wingo

(1972),407U.S. 514, 92S.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. Danielshad asserted the affirmative defense of justificationor self-defense. Itwas 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 areasonable doubt the absence 

### - of justificationon the part of the defendant. We held in the recent case Statev. Gratzer (NO. 83-157, DecidedApril 24, 1984), that the influence of extrememental.

or emotional stress,contained in thedefinitionofmitigated deliberate homicide in (section 45-5-103, MCA), is not an element of the crime which the State is required to prove beyond a reasonabledoubt. 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 thismean therefore that the influenceofmental 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 thatwould reduce a deliberate homicide to amitigated deliberatehomicide. 

### " We furtherheld thatneither 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.ncesappeared in a killingpurposely 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-defenseDanielshad theburden 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 instructionshad 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 inMontana is that although the burden of persuasion remains on the State. in order to availhimself of the affirmative defense 

### of self-defense, the defendant has the burden of producinq sufficient evidence on the issues to raise a reasonabledoubt 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." (Emphasisin 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 ofmitigated deliberatehomicide. 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 evidenceon the issues to raise a reasonabledoubt of his guilt when the defendant raises justifiable use of force as an affirmativedefense. In this case,the District Court instructed the jury to that effect. 

### A further instructional error claimedby Danielsrelates 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 reasonableand prudentman tohis instantdefense." This instruction limited improperly the purpose and intentof theword "imminent" in section 45-3-102,MCA,which readsas 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 himselfor another against such other's imminent use of unlawful force 

# . . ."

(Emphasisadded.)

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 justifiableuse of force. The threatened person is entitled to act "when and to the extent that he reasonably believes that such conduct is necessary.

### " (Emphasisadded.) This may or may not be instantly. It depends upon the reasonableness of the circumstances. IV. The District Court granted a motion in 1-imineon 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 pocketwhile Jimmy John was sittingat thebar and JimmyJohn, in retrieving thepistol, 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 Johndid threaten to shoot Daniels, "

# . .

# .it is not apparent that he ever took any affirmativeaction in thatdirection." 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 thatnothing further had been done by the county. Daniels claims that the sheriff's records and the letter would help establish Daniels' frameof mind in defendinghimself when the incident with JimmyJohnoccurred. Technical errors in rulings of evidence are not grounds for reversal and in order to allow reversal the rulingmust affect substantialrights. State

### v. Romero (1973),161Mont. 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 amanifest 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. Danielsobjects to the deletionby the trial courtof an offered instructionwhich contained aparagraph to the effect that the jury could consider the State's failure to callwitnesses or to produce other evidence shown in the case to be in existenceand 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 whichwas 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.sesat 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 iswithin thepower 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 stateconstitutions. Since this case isnowbeing reversed fornew trial,the enhancement of Daniels' sentence is moot. Note, however, that we settled this question in State v. Davison (Mont. 1980), 614P.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

JusticesIconcurand dissent as follows: Although I agree that the trial court erred in permitting the testimony of Greyson Phipps, I disagree with the way themajority has handled this issue. If I correctly understand themajority position it is that Phipps' testimony

was inadmissible because the declarant Tarver had been dismissed from the stand andwas 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 inconsistentwith his testimony. Thepurpose 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.chthe 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. Imight have said something to him back, but I don't really remember it, because Iwashalf 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 testimonywas 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 tellyou 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 statedthat 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. Tarverwas 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 thishearsay tobe used for impeachmentpurposes. 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 thewitness 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 fromwhich Iwish to dissent. The majority opinion states: "As to the affirmative defense of self defense Danielshad the burden ofproof." This is not so. The opinion correctly goes on to say that Da.nielshad the burden to come forward with evidence sufficient to raise a rea.sonabledoubt. This is a correct statementof the law. Danielshad no burden ofproof. Themajority opinion states: "Weheld 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 Gratzerwaswhether the court erred in failing to instruct with respect to the burden of proof in a mitigated deliberate homicide case. Gratzerdid not raiseself defense and therefore the appeal did not involve any issuewith referenceto "justifiableuse of force". I agree with the majority opinion that the trial court inthiscasecorrectlyinstructed thejury thatthedefendant had the burden of producing sufficient evidence on "justifiableuse of force" so as toraise a reasonable doubt of his guilt. The corollary is that, once defendant had produced sufficientevidence toraise 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. Inaccordancewithmy dissent inGratzer 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 furtherrequire the trialcourt to give the same instruction with respect tothe burden on the State to negate "justifiable use of force". Whether we are talking about mitigating mental distress orjustifiable use of force, theburden ison thedefendant tocome forward with sufficientevidence toraise a reasonable doubt. Thereafter, the State has the burden of excluding these propositions

Mr. JusticeDaniel J. Shea: Concrcw&ncL I join intheforegoing

# -6 Mr. JusticeMorrison.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 hispickup. (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 andthe injurywould have been fatalwithin fiveminutes; thata third bullet entered the back and passed through the victim's heart. (10) That the shots to the victim's back

were firedwithin a distanceof one tofour feet. (11)That

none of the witnesses characterized the victim as the aggressor. There was additional testimony, denied by the defendant, that (1)the victimhad pushed thedefendant away saying that he didn't want any more trouble with the defendant; (2) that the victim statedhe wanted tobe left alone; and (3)that, thereafter, thedefendant, with a knife inhislefthand, came back atthevictim, prior tothe time thevictimhitthedefendantwith thehorse shoe nippers. In my view, the jury, even without the rebuttal testimony of Officer Phipps, would have had todisregard the defendant's claim of self-defense. I would, therefore, hold that the alleged error was harmless, and would affirm the conviction.

Justice'