State v. West

617 P.2d 1298, 190 Mont. 38, 1980 Mont. LEXIS 861
CourtMontana Supreme Court
DecidedOctober 23, 1980
Docket79-065
StatusPublished
Cited by9 cases

This text of 617 P.2d 1298 (State v. West) 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. West, 617 P.2d 1298, 190 Mont. 38, 1980 Mont. LEXIS 861 (Mo. 1980).

Opinions

MR. JUSTICE DALY

delivered the opinion of the Court.

Defendant Rodney Allen West appeals from a conviction and judgment of felony theft in violation of section 45-6-301, MCA. [39]*39Judgment was entered in the District Court, Fourth Judicial District, Missoula County.

In the summer of 1977, a pickup truck was stolen from Bitter-root Toyota in Missoula. On July 26, 1977, defendant sold a truck, matching the description of the stolen truck, to John Wright in the State of Idaho. Wright was given a bill of sale and told the title would be delivered to him from Montana. When Wright took the truck in for insurance coverage, he discovered the vehicle identification number had been obliterated. Wright turned the bill of sale and the truck over to Idaho authorities who were able to obtain a series of potential serial numbers from the partial numbers available on the truck.

On February 26, 1979, defendant was charged by information with the felony theft of a truck bearing the vehicle identificaiton number of CE142515821. At the beginning of the trial on July 9, 1979, the State moved to amend the vehicle identification number to read CCE142515821. The amendment was allowed over defendant’s objection. The jury was then generally instructed that defendant was charged with the felony theft of a truck bearing the amended vehicle identification number.

Defendant moved in limine to exclude any testimony from Ted Beyers, an alleged accomplice of West. The motion was denied. During the State’s opening remarks, the jury was told that the State would call a detective, Sgt. Wilson, who would relate a conversation he had with Beyers concerning how Beyers and defendant had stolen the truck. Defendant objected and moved for a mistrial. The objection was sustained, but the motion was denied.

Defendant elected to give an opening statement following the State’s. He propounded his defense which was based on faulty vehicle identification numbers which did not or could not identify the stolen truck. At this point, the State admitted an error in the information regarding the vehicle identification number. The State was permitted to amend the number in the information for a second time, this time striking the vehicle identification number from the information. Defendant then moved for a motion in limine of any [40]*40testimony concerning the vehicle identification number stricken from the information. The motion was denied. During the State’s case-in-chief, defendant was granted a continuing objection to any testimony regarding vehicle identification numbers.

On July 11, 1979, the jury rendered a verdict finding defendant guilty of felony theft. Defendant moved for a new trial on the ground that John Wright’s testimony was not corroborated. This motion was denied. On August 13, 1979, defendant, a non-dangerous offender, was sentenced to ten years in the state prison with credit for time already served.

Defendant has presented some twenty issues to be examined by this Court. However, only examination of (1) the issue of Detective Sgt. Wilson’s testimony and its use in the State’s opening argument, and (2) the sufficiency of the evidence need be reviewed by this Court.

Defendant contends that the District Court erred in refusing to grant a motion in limine and a mistrial based on proposed testimony of a State’s witness which was later held to be inadmissible. This claim of error stems from defendant’s contention that certain remarks made by the prosecuting attorney during his opening statement were prejudicial. These remarks referred to information Ted Beyers, an alleged accomplice of defendant, had given to Detective Sgt. Michael Wilson.

Prior to trial defendant submitted a motion in limine precluding and prohibiting the State of Montana, its attorneys or witnesses from mentioning, referring to, or interrogating about any information that Ted Beyers had given to anyone, including Wilson. This motion was made on the basis that any such testimony would be strictly hearsay and would deprive defendant of his constitutional right to confront and examine the witnesses against him. The motion was denied, and the court advised counsel that it would be reviewed when and if the witness was sworn and an offer of proof made in chambers.

During his opening remarks, the prosecutor made the following statement:

[41]*41“We will then call Mike Wilson of the Clearwater County, Idaho Sheriff’s office. Detective Sergeant Wilson will testify that individual known to him as Ted Beyers, the same Ted Beyers which was with Mr. Wright who he can’t locate currently and who he has been looking for for some time, came in shortly after Mr. Wright had bought the pickup and wanted to talk to him about a pickup that he and Rodney Allen West had sold to John Wright. Mr. Wilson will relate the substance of that conversation was that Mr. Beyers and Carla Bray and the Defendant were in Missoula staying at the Palace Hotel. That they went out to the Bitterroot Toyota. The Defendant drove the vehicle from Bitterroot Toyota —” (Emphasis supplied.)

Defendant objected to this statement and in chambers moved for a mistrial based on the prejudice the statement would have on the jury. Counsel’s objection was sustained, but the court denied the motion for mistrial.

The hearsay testimony of Detective Sgt. Wilson regarding the statement made by Beyers was subsequently deemed inadmissible and not presented to the jury. Defendant asserts that the statement made by the prosecuting attorney during his opening remarks was highly prejudicial to defendant, could not be erased from the jury’s mind and constituted reversible error.

This Court has faced similar issues on a number of previous occasions: State v. Zachmeier (1968), 151 Mont. 256, 441 P.2d 737; State v. Ruona (1972), 159 Mont. 507, 499 P.2d 797; State v. Kolstad (1975), 166 Mont. 185, 531 P.2d 1346.

Zachmeier was a homicide case. Prior to trial the defendant had filed a motion to suppress a confession for violation of Miranda warnings. At that time the court reserved ruling on the motion. At the beginning of trial the motion was renewed. The court denied the motion but granted the defense counsel leave to renew the motion at a later point in trial. When the confession was later offered into evidence the court ruled it was inadmissible. However, during opening remarks the county attorney made a detailed recitation of the admission of guilt made by the defendant. This Court held that [42]*42those remarks in counsel’s opening statement were reversible stating that, “[w]e do not think that the jury would completely disregard this detailed admission of guilt.” 441 P.2d at 741.

In both Ruona and Kolstad, Zachmeier was distinguished on the facts:

“Zachmeier held that the damaging opening statement of prosecution were not of the nature that the jury would completely disregard. Too, we are not unmindful of this Court’s admonitions in State v. Langan, 151 Mont. 558, 568, 445 P.2d 565 and cases cited therein. Futhermore, as stated in Fahy v. State of Connecticut,

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Related

State v. Alexander
875 P.2d 345 (Montana Supreme Court, 1994)
State v. Scheffelman
Montana Supreme Court, 1990
State v. Isom
641 P.2d 417 (Montana Supreme Court, 1982)
State v. West
617 P.2d 1298 (Montana Supreme Court, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
617 P.2d 1298, 190 Mont. 38, 1980 Mont. LEXIS 861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-west-mont-1980.