No. 81-398 INTHE SUPREME;COURT OF THE STATE OF MONTANA 1982

STATE OF MONTANA, Plaintiff and Respondent,
-vsTHOMAS D. HOLZWORTH, Defendant and Appellant.

Appeal from: DistrictCourt of the Seventh Judicial District, In and fortheCounty of Dawson, The Honorable L. C. Gulbrandson, Judge presiding.
Counsel of Record: For Appellant: Jerry D. Cook, Gleizdive, Montana
For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Richard A. Simonton, CountyAttorney, Glendive, Montana

Submittedon Briefs: 

### May 20, 1982 Decided: October 6, 1982

Filed:

## 8CT6

## -1982blr. 

### Chief Justice Frank I. 

### daswell delivered the Opinion 

### of the Court. This case presents the question ofwhether the Statzfs reference to defendant's juvenile offenses during the crossexamination of defendant's character witness constitutes reversible error. The District Court admonished the jury to disregard these references except thoseofwhich thewitness had personal knowledge and, after a jury conviction, designated defendant a dangerous offender and sentenced him to thirty years at the Montana State Prison. We reverse and remand for anew trial. The character witness called by the defense testified that he had known defendant since he was 

### a little boy, that 

### he had lived all of his life in the area where the incident occurred and that defendant had worked for him for amonth in 1978. On cross-examination, the prosecuting attorney questioned thewitness as follows: "Q. 

### Were you aware that when he was 15 years old he was charged with attempted rape? "MR.COOK: Objection, Your Honor. "0. 

### And served sixmonths probation? "'JHE 

### COURT: There is an objection, Mr. Simonton." 'The

### defense attorney thenmoved for a mistrial, which
was denied. A 

### conference was held in court chambers, in which thedefense attorney objected to any cross-examination involving juvenile recorus. The Eistrict Court decided to sustain the 

### objections to the questions involving juvenile recordsand gave the following admonition to the jury: 

### "THE COURT: For the record, the last objection is sustained. The jury will disregard any remarks regarding juvenile offenses committed by the defendant, ex-cept insorar as the wltness may know of: his own knowledge of any activity. TO thatextentyou may ask. But, regarding juvenile activity that he would not be aware of, under thestatuteshouldnotbe referred to." It 

### is clear thiscase does not fall within the scope of Davis v. Alaska (1974), 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347, where the Court held that, ina criminal case, the defendant is denied his right of confrontationwhen he is prohibited from cross-examining a prosecutor's witness regarding the witness'sjuvenileprobation. Seealso, State
v. Daniel (La. 1979), 376 So.2d 1361. Here, however, the State sought to cross-examine a defense witness and this fact distinguishes Davis from the case at bar. State v.

In thosejurisdictions having juvenile court statutes excluding evidence similar to section 41-5-106, MCA, some have allowed introduction of the evidence of the youth proceedings in certain circumstances. These jurisdictions include: Alabama (Ala. Code S; 12-15-72 (1975)); Arkansas (Ark. Stat. Ann. 45-444 (1977)); Illinois (Ill. Ann. Stat., Ch. 37, 702-9 (Smith-Hurd 1972)); Mississippi (Miss. Code Ann. 

### S 43-23-17 (1972)); Ohio (Ohio Rev. Code Ann. g 2151.358 (Page 1981));and Tennessee (Tenn. Code Ann. 5 37-233 (1977)). Others, however, exclude any introduction of this evidence and tnese include: Colorado (Colo. Rev. Stat. 19-1-109 (1978));Missouri (Mo. Rev. Stat. S 211.271 (1978));Rhode Island (R.I. Gen. Laws, 14-1-40 (1969)); and West Virginia (W.Va. Code S 49-7-3 (1980)). We think the better reasoned cases exclude the evidence for allpurposes and we sohold here. Cf., Cotton

### v. ,!f' Unlted States (10th Cir. 1966),355F.2d,680, andAnnot., 63

### The pertinent part of Montana's applicable statute (section41-5-106, 

### MCA) reads as follows: "Neither thedisposition of ayouth under this chapter nor evidence given in youth court proceedings under this chapter shallbe admissible in evidence exceptas otherwiseprovided in thischapter." Eisewhere in the chapter, section 41-5-603, MCA, allows inspectionoryouth court records to certain people,none of which is applicable to the issuehere. Section 41-5-106, 

### MCA, states that neither the disposition nor evidence ofyouth courtproceedings isadmissible in evidence. Obviously, testimony of juvenile proceedings on cross-examination is "evidence" and the plain language of the statute states that such is not admissible. There is no exception carved out for cross-examination of defendant's characterwitnesses. In the instant case the defendant was prejudiced by theprosecutor's asking of thequestions set outabove. The prosecutor ignored the defense attorney's objection and attempted to bring more inflammatory evidence before the jury witnout giving the Uistrict Court the opportunity to rule on the objection. Such conduct isnot commendable and contravenes the policy underlying the Youth Court Act that all evidence of this nature be excluded. in Statev. Shannon (1933), 95

### Mont. 280, 26 P.2d 360, the 

### prosecutor improperly asked several questions about the defendant's alleged prior offenses and, even though the defendant denied the allegations, this Court found the asking of the questions constituted prejudicial error. Accordingly, defendant's conviction was reversed and the case remandedfor a new trial. Similar reasoning obtains here regaraing this prosecutor's questions about defendant's juvenile offenses. This act constituted prejudicial error, and the judgment of the District Court is vacated and the cause remanded for anew trial.

Chief ~usti6e 

# -

We concur:



# L'
JusticesMr. JusticeGene B. Daly dissenting.

I respectfully dissent. While agreeing with the majority that generally juvenile records cannot be used as evidence against an accused, I do not believe that the prosecutor's questioning in this case constituted reversible error. Given the proper circumstances alleviating the prejudicial effect of the evidence, juvenile records may be used to impeach "good character" testimony by a criminal defendant. See, Annot. 63 A.L.R.3d 1112 S 4(b). The rationale for thisproposition is thatthe search for truth at a trial 

### is inhibited if a defendant
or a defense character witness is allowed to give the erroneous impression that the defendant is lily-white. See United States
v. Canniff (2nd Cir. 1975), 521F.2d 565; and Statev. Stepheny (197811 - - - -- Tenn.Crim.App. ----

### , 570 S.W.2d 356. This case involves the balancing of the search fortruthwith the policy of protecting juvenile records. Here, because of the safeguards surrounding the prosecutor's questions, I would not sayreversible 

### error occurred. The objection

### to the prosecutor's questions was sustained and an admonition 

### was given. The jury
was 

### also instructed 

### to disregard any remarks made by counsel not supportedby the evidence. These procedures limited the pre judicia1effectof the questioning. I would affirmtheDistrict Court's judgment.