State v. Daniels

• Decision Date: 15 May 1984
• Docket Number: No. 82-438,82-438
• Citation: 210 Mont. 1,41 St.Rep. 880,682 P.2d 173
• Parties: STATE of Montana, Plaintiff and Respondent, v. Nolan T. DANIELS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 173

682 P.2d 173

210 Mont. 1

STATE of Montana, Plaintiff and Respondent, v.Nolan T. DANIELS, Defendant and Appellant.

No. 82-438.

Supreme Court of Montana.

Submitted Jan. 9, 1984.

Decided May 15, 1984.

Leaphart Law Firm, W. William Leaphart argued, Helena, Schulz, Davis & Warren, John Warren argued, Dillon, for defendant and appellant.

Mike Greely, Atty. Gen., Patricia J. Schaeffer, Asst. Atty. Gen., Helena, W.G. Gilbert, III, County Atty., Dillon, for plaintiff and respondent.

SHEEHY, Justice.

We reverse for a new trial the judgment of conviction Nolan T. Daniels for mitigated deliberate homicide following jury trial in Beaverhead County, Fifth Judicial District.

Nolan T. Daniels, a 43-year-old ranch hand, 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 resident of 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 animosity was well 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 spent June 5 and 6, 1981, barhopping in Dillon.

Our statement of what 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 downtown Dillon bar.The two decided to go to Dell for a roping event.Tarver, who had been drinking since early morning (his not 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 his willingness to protect Daniels if the need arose.Daniels gave Tarver a .38 pistol which remained in the front seat of the car throughout the ensuing incident.

Once in Dell, the two stopped at the Airport Bar for a drink.They had stopped at the Dell Hotel but were refused admittance by 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 that Jimmy John hollered something at Daniels as he 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 Continental was parked approximately 15 feet from the truck, angled from the rear of the passenger 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 to bend over and turn away from Jimmy John.Daniels then walked back to his car, and after getting his keys from the driver's side of his automobile, went to his 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 enforcement officers.

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.Tarver's testimony was that the two wrestled for a few moments 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 issue on which we 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 automobile when they sighted Jimmy John outside the bar.

This case came on for trial on July 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 in which he and Daniels came to the bar where they saw Jimmy John, he testified:

"Q.Did you say anything to the Defendant when you saw Jimmy John?A.Yeah.

"Q.What did you say?A.I said I'd buy him a beer.I wanted to talk to him, I'd buy him a beer.

"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.How do you remember if Nolan said something to you and you said something to him.A.Cause I was 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 defendant do when you got out of the car.A.Who, Nolan?

"Q.Yes.A.Well he was sitting in the car when I got out of the car."

When the examination and cross-examination of Tarver was 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 getting out of the car to meet Jimmy John.

Daniels' case-in-chief began the next day, July 15.The defendantNolan 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 rested and the State called Greyson Phipps as a rebuttal witness.The following occurred:

"Q.Now when you arrived at the Airport Bar, you saw Scott Tarver?A.Yes, sir.

"Q.And did you question him about what 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 Defendant, Nolan Daniels, had just as he and Daniels were getting out of Daniels' car.A.Yes.

"Mr. Leaphart: Objection, Your Honor.It's calling for a hearsay.

"Mr. Gilbert III: Your Honor, it's offered--Tarver 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 testified he told the Sheriff, but he said couldn't remember what was said.

"Mr. Leaphart: Your Honor, Mr. Tarver is the State's witness, and it can't be impeaching him, nor can they corroborate him 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 III: That establishes the foundation, Your Honor, we can impeach our own witness under the new rules.

"THE COURT: Objection is overruled.

"Q.What did Tarver tell you 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 stated that he'd better be careful, the big Indian will whip your ass."

At the time that the rebuttal testimony was offered and admitted, Tarver had already been excused from the trial, defense counsel consenting to his 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 what was said to the sheriff.

Daniels' defense during the trial was justification or self-defense.His testimony about the incident had indicated that he had gotten out of the automobile, went to Jimmy John, who grappled with him, tore off his necklace, and then struck him with the nippers.Daniels denied 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 Jimmy John a beer.At that point 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...