State v. Wallace

727 P.2d 520, 223 Mont. 454, 1986 Mont. LEXIS 1062
CourtMontana Supreme Court
DecidedOctober 22, 1986
Docket85-464
StatusPublished
Cited by5 cases

This text of 727 P.2d 520 (State v. Wallace) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wallace, 727 P.2d 520, 223 Mont. 454, 1986 Mont. LEXIS 1062 (Mo. 1986).

Opinions

MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Bradley Wallace appeals a Rosebud County jury verdict convicting him of aggravated assault. The issues on this appeal are:

(1) Whether the trial court erred in failing to either direct a verdict for appellant or order a mistrial because of the State’s suppression of four witness statements.

(2) Whether the trial court erred in admitting the testimony of a doctor whose name was endorsed as a witness the first day of trial.

(3) Whether the trial court erred in admitting evidence of appellant’s possibly incriminating statement where the State violated the court’s discovery order by failing to notify defense counsel of the statement.

(4) Whether the cumulative error rule mandates reversal.

We find that only harmless error occurred in this case and, therefore, we affirm.

The peculiar nature of this case requires that we set forth the facts in some detail. On November 22, 1985, David Scott, the eventual victim of the assault, was drinking in a Colstrip, Montana, bar/bowling alley. Scott conversed with a friend, David Cogdill, who introduced him to two ladies seated at the bar. Scott had not previously known the two ladies, Darla Baldwin and Shellie Miars. The appellant and his girlfriend, Theresa Wray, were sitting at the bar next to Cogdill, Miars and Baldwin. Scott was moving around the bar talking with different people. Cogdill, Miars, Baldwin and Scott all agree that the appellant referred to Scott, a Native American, as a “prairie nigger” while Scott was only a few feet away. Scott and the appellant were not acquainted. Scott became upset and wanted to ask appellant why he was insulting him. Cogdill and the ladies calmed Scott down and he did not physically confront appellant at that time. Appellant claims that Scott then began cursing him and Cogdill did hear Scott describing appellant with an unpleasant phrase. At that point, appellant’s girlfriend leaned over the bar towards Scott and made a statement variously described as “shut up” or “you guys think you’re so tough” or “shut up or there will be some__”

[456]*456Scott testified that he did not remember what happened at this point. Most of the witnesses agree that Scott began to walk towards appellant. Arnie Garner, the bartender, was watching the appellant and he testified that the appellant emptied his beer mug on the floor, concealed the mug behind his leg, stood up, approached Scott and smashed the mug over Scott’s head. All the witnesses agree that Scott had his hands down at his sides. Garner stated that he did not see anyone threatening the appellant or Theresa Wray and that there were no indications that Scott was getting ready to fight. Miars and Baldwin both testified that Scott did nothing to provoke the attack. Tom Mulcahy, an acquaintance of Scott who was also present in the bar, testified that Scott was not threatening anyone nor was he in a challenging stance. Cogdill testified that he thought Scott was approaching appellant possibly to “ask appellant to step outside.”

Appellant admits smashing the beer mug over Scott’s head but maintains that he did so in self-defense. Appellant testified that Scott, without provocation, began verbally assaulting appellant; that Theresa Wray asked Scott to shut up; that Scott immediately approached appellant at a brisk pace; that Scott had his hands at his sides; that he thought Scott was going to physically assault appellant or Wray; and that he was afraid of a confrontation.

The initial blow shattered the beer mug and left appellant holding the mug’s jagged glass handle. The bartender, Garner, testified that at the two places the handle joined the mug, the handle had jagged, razor-like edges protruding one-half to three-fourths of an inch. Appellant continued to assault Scott by slashing at his head with the glass handle until Garner grabbed appellant and held his arms back. Garner and Tom Mulcahy saw appellant slash Scott once while Cogdill stated that appellant slashed Scott two or three times. Both Miars and Baldwin also testified that appellant tried to cut Scott with the broken handle.

Dr. Riggenbach testified as to Scott’s injuries. Scott suffered a one inch long laceration and a two and one-half inch long laceration, both on his forehead. The longer one penetrated to the skull. He also received a “rather severe” laceration of the ear. The doctor performed a skin graft on Scott’s ear, a small part of which was missing. The doctor guessed that he used 30-35 stitches on Scott in all.

The police arrested appellant shortly after the attack and took him to the Colstrip jail. A deputy sheriff testified that at the jail the [457]*457appellant remarked, “it’s a hell of a deal. . . when you can’t protect yourself from some . . . blanket ass that’s going to kick your ass.”

Shortly after the incident, Baldwin, Miars and Cogdill gave short, written statements to the police. Garner gave a taped statement to the police. About a week later, Cogdill, Baldwin and Miars gave more detailed, taped statements to an investigating officer. The deputy county attorney charged appellant with aggravated assault.

At the January 1985 omnibus hearing for this case, the county attorney agreed in writing that the State had “disclosed all evidence in its possession, favorable to the defendant on the issue of guilt.” the District Court also granted defendant’s motions for (1) discovery of all statements made by defendant to investigating officers or to third parties and in the State’s possession; (2) discovery of the names of the State’s witnesses and their statements; and (3) inspection of all physical or documentary evidence in the State’s possession. Contrary to the court’s ruling, prior to trial the State only provided appellant with the three witnesses’ short written statements. The State failed to provide defense counsel with the four longer, taped statements or with appellant’s racist statement made at the jail.

Immediately prior to trial on May 28-31, 1985, appellant made a motion in limine to prevent the State from referring to any statements or admissions made by him against his interest. The State then informed the court and defense counsel of appellant’s remark at the jail referring to a “blanket ass.” The court later allowed a deputy sheriff to testify, over appellant’s objection, to this remark.

While cross-examining Cogdill at trial, defense counsel learned of the State’s failure to produce the four taped witness statements. At that time, two of those witnesses had already testified and defense counsel was in the middle of questioning Cogdill, whose taped statement had been suppressed. The statements were in some respects minimally supportive of appellant’s theory of self-defense. Upon learning of the withheld statements, defense counsel moved for a directed verdict of acquittal. The court did not immediately rule on that motion.

Later in the trial, the State called Dr. Riggenbach, the victim’s treating physician, as a witness. Appellant objected claiming surprise and pointed out that the doctor’s name was not originally endorsed on the information. The State had endorsed the doctor’s name as a witness on May 28, the first day of trial. The trial court [458]*458allowed the doctor to testify, relying in part upon a prosecutorial brief filed on May 22 which indicated the doctor would testify.

At the close of the State’s case, appellant moved for a directed verdict of acquittal or, alternatively, for a mistrial.

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Related

State v. Berger
1998 MT 170 (Montana Supreme Court, 1998)
State v. Alexander
875 P.2d 345 (Montana Supreme Court, 1994)
State v. Forsyth
761 P.2d 363 (Montana Supreme Court, 1988)
State v. Wallace
727 P.2d 520 (Montana Supreme Court, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
727 P.2d 520, 223 Mont. 454, 1986 Mont. LEXIS 1062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wallace-mont-1986.