No. 81-398 

IN THE SUPREME; COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsTHOMAS D. HOLZWORTH, 

Defendant and Appellant. 

Appeal from: District Court of the Seventh Judicial District, 

In and for the County 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, County Attorney, Glendive, 

Montana 

Submitted on Briefs: May 20, 1982 

Decided: October 6, 1982 

Filed: 8CT 6 - 1982 
blr. Chief Justice Frank I. daswell delivered the Opinion of 

the Court. 

This case presents the question of whether 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 those of which the witness 

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 a new 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 a month 

in 1978. On cross-examination, the prosecuting attorney 

questioned the witness 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 six months probation? 

"'JHE COURT: There is an objection, Mr. 

Simonton." 

'The defense attorney then moved for a mistrial, which 

was denied. A conference was held in court chambers, in 

which the defense attorney objected to any cross-examination 

involving juvenile recorus. The Eistrict Court decided to 

sustain the objections to the questions involving juvenile 

records and 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 

that extent you may ask. But, regarding 

juvenile activity that he would not be 

aware of, under the statute should not be 

referred to." 

It is clear this case 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, in a criminal case, 

the defendant is denied his right of confrontation when he 

is prohibited from cross-examining a prosecutor's witness 

regarding the witness's juvenile probation. See also, 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 those jurisdictions 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 all purposes and we so hold here. Cf., Cotton v. 

,!f' 

Unlted States (10th Cir. 1966), 355 F.2d,680, and Annot., 63 
The pertinent part of Montana's applicable statute 

(section 41-5-106, MCA) reads as follows: 

"Neither the disposition of a youth under 

this chapter nor evidence given in youth 

court proceedings under this chapter 

shall be admissible in evidence except as 

otherwise provided in this chapter." 

Eisewhere in the chapter, section 41-5-603, MCA, allows 

inspection or youth court records to certain people, none of 

which is applicable to the issue here. 

Section 41-5-106, MCA, states that neither the disposition nor evidence of youth court proceedings is admissible 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 character witnesses. 

In the instant case the defendant was prejudiced by 

the prosecutor's asking of the questions set out above. 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 is not commendable and 

contravenes the policy underlying the Youth Court Act that 

all evidence of this nature be excluded. 

in State v. 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 remanded 
for 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 a new trial. 

Chief ~usti6e - 

We concur: 

L' 

Justices 
Mr. Justice Gene 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 this proposition is 

that the 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), 521 F.2d 565; and State v. Stepheny 

(197811 - - - -- Tenn .Crim.App. ---- , 570 S.W.2d 356. 

This case involves the balancing of the search for truth with 

the policy of protecting juvenile records. Here, because of the 

safeguards surrounding the prosecutor's questions, I would not 

say reversible 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 

supported by the evidence. These procedures limited the pre j udicia1 effect of the questioning. 

I would affirm the District Court's judgment.