State v. Gowan
| Decision Date | 02 November 2000 |
| Docket Number | No. 98-354.,98-354. |
| Citation | 2000 MT 277,13 P.3d 376,302 Mont. 127 |
| Court | Montana Supreme Court |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Richard Lance GOWAN, Defendant and Appellant. |
David M. Ortley, Todd D. Glazier, Kalispell, MT, For Appellant.
Joseph P. Mazurek, Montana Attorney General, Carol Schmidt, Assistant Montana Attorney General, Helena, MT; Thomas J. Esch, Flathead County Attorney, Edward J. Corrigan, Deputy Flathead County Attorney, Kalispell, MT, For Respondent.
¶ 1 Defendant, Richard Lance Gowan (Gowan), appeals from a jury verdict in the Eleventh Judicial District Court, Flathead County, finding him guilty of two counts of criminal sale of dangerous drugs. We reverse and remand for a new trial.
¶ 2 The dispositive issue on appeal can be restated as follows:
Did the District Court err in holding that a defense witness' gratuitous statement, offered in response to the State's cross-examination, opened the door for rebuttal character evidence?
¶ 3 On October 21, 1997, Gowan was charged by information with two counts of criminal sale of dangerous drugs, both felonies. At his arraignment, Gowan pled not guilty to both counts. On November 17, 1997, the District Court executed a preprinted form entitled Action Taken at Omnibus Hearing. In that form the State indicated that it would not rely upon Gowan's prior acts or convictions. Gowan indicated his intent to rely upon the defense of entrapment.
¶ 4 A jury trial was held on March 2-3, 1998. After opening statements, the parties again met with the District Court to discuss the admissibility of Gowan's prior perjury conviction and what evidence, if any, would be admissible should Gowan choose to testify. The District Court ruled that while direct evidence of a prior conviction was not admissible, the State would be permitted to ask Gowan, in the event he testified, only if he had lied under oath in the past. Once again, the District Court clarified that the State was not to make references to Gowan's prior convictions.
¶ 5 At trial, Gowan called his girl friend, Kris McPherson (McPherson), as a witness. She was not designated as a character witness and on direct-examination McPherson offered no character testimony. On cross-examination, however, the following transpired:
¶ 6 After argument of counsels, the District Court ruled that in light of our decision in State v. Austad (1982), 197 Mont. 70, 641 P.2d 1373, and under Rules 404(a)(1) and 405(a), M.R.Evid., that McPherson had offered character evidence. Therefore, the District Court concluded that McPherson had opened the door to character evidence, even though her testimony was in response to cross-examination. The State was allowed to inquire if McPherson was aware that Gowan had been convicted of perjury. The State also made references to Gowan being on probation and being sued for failure to deliver a title.
¶ 7 The jury found Gowan guilty of both counts of criminal sale of dangerous drugs. Gowan filed an application for review of his sentence with the Sentence Review Division of the Montana Supreme Court. After they carefully considered Gowan's application, the board affirmed his sentence with the modification that one year be suspended on count I.
¶ 8 On May 19, 1998, Gowan, acting pro se, filed a notice of appeal with the Clerk of the Montana Supreme Court, which was subsequently filed with the Clerk of the District Court, Flathead County, on May 28, 1998. The District Court also granted Gowan's request for the appointment of counsel and his request to proceed in forma pauperis. Gowan now appeals his conviction to this Court.
¶ 9 We review a district court's evidentiary rulings for an abuse of discretion. State v. MacKinnon, 1998 MT 78, ¶ 12, 288 Mont. 329, ¶ 12, 957 P.2d 23, ¶ 12 (). A district court is granted broad discretion to determine whether evidence is relevant and admissible. MacKinnon, ¶ 12. If evidence has been improperly admitted, however, we will find reversible error based on prejudice to the defendant where there is a reasonable probability that the inadmissible evidence might have contributed to the conviction. State v. Berger, 1998 MT 170, ¶ 39, 290 Mont. 78, ¶ 39, 964 P.2d 725, ¶ 39 .
¶ 10 Did the District Court err in holding that a defense witness' gratuitous statement, offered in response to the State's cross-examination opened the door for rebuttal character evidence?
¶ 11 This issue requires us to address, for the first time, whether a gratuitous character statement made by a defense witness while being cross-examined by the State "opens the door" to rebuttal character evidence. We conclude that although a defendant can open the door with statements made during either direct or cross-examination, and a defense witness can open the door on direct-examination, a defense witness cannot inadvertently open the door on cross-examination. Under Rule 404(a)(1), M.R.Evid., only the accused can "open the door" for the prosecution to introduce rebuttal character evidence.
¶ 12 Gowan argues that the District Court abused its discretion by allowing evidence of his perjury conviction in violation of its own pretrial order. He claims that this was inherently prejudicial, because he did not have the opportunity to adequately prepare for admission of this evidence. He alleges that he made critical decisions regarding both voir dire and trial strategy in reliance upon the District Court's pretrial order. Gowan cites State v. Doll (1985), 214 Mont. 390, 396-97, 692 P.2d 473, 476; and State v. Howell (1987), 226 Mont. 148, 152, 734 P.2d 214, 217, in support of this argument.
¶ 13 Gowan concedes that the State can enter rebuttal evidence of bad character if a defendant opens the door by first entering evidence of good character. He, however, argues that a non-character defense witness cannot place a defendant's character at issue with statements made in response to the State's cross-examination, because only the defendant can place his character at issue and thus open the door for the State's rebuttal. Gowan argues that his situation is distinguishable from Austad. He points out that in Austad, the accused himself made unnecessary, self-serving statements which he knew to be untrue. While in his case his witness inadvertently commented that he was honest and trusting in explaining how he could have been duped by the State's informant.
¶ 14 Gowan argues that his case is closer to State v. Webb (1992), 252 Mont. 248, 255, 828 P.2d 1351, 1356; and State v. Harris (1991), 247 Mont. 405, 410, 808 P.2d 453, 456. In those cases we held that it was improper for the State to open its own door so it could then enter evidence of good character to rehabilitate its own witness. Gowan claims that allowing a witness to open the door on cross-examination would discourage defendants, with a criminal history, from calling witnesses who could provide crucial testimony about a limited aspect or element of the alleged crime. He further asserts that in virtually every case, the State could devise some strategy to elicit character testimony from a witness and open the door to present impeachment evidence or rebuttal testimony of bad character. On crossexamination, the State is in control of the witness and able to substantially prejudice the defendant with one question.
¶ 15 The State counters that the District Court did not abuse its discretion when it allowed the State to cross-examine a defense witness regarding Gowan's prior perjury conviction after the witness testified that Gowan was honest. The State claims that Rules 404(a) and 405(a), M.R.Evid., allow the State to inquire into relevant specific instances of conduct once the defense offers a pertinent trait of the defendant's character. The State argues that this also applies to statements made by defense witnesses on cross-examination.
¶ 16 The State argues that this case is similar to Austad. In that case the defendant answered a cross-examination question with an unnecessary, self-serving statement. Here, the witness testified that Gowan was honest when the State cross-examined her. The State asserts that her answer was an unnecessary, self-serving statement which, as further questioning revealed, she knew to be untrue, but which obviously placed Gowan in a better light with the jury. Therefore, she opened the door to Gowan's character by testifying that he was honest.
¶ 17 The State attempts to lend credence to this argument by saying that once the...
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