State v. LaDue, 99-195.

• Decision Date: 20 March 2001
• Docket Number: No. 99-195.,99-195.
• Citation: 2001 MT 47,20 P.3d 775,304 Mont. 288
• Parties: STATE of Montana, Plaintiff and Respondent, v. Merlin LaDUE, Defendant and Appellant.
• Court: Montana Supreme Court

20 P.3d 775

2001 MT 47

304 Mont. 288

STATE of Montana, Plaintiff and Respondent, v. Merlin LaDUE, Defendant and Appellant.

No. 99-195.

Supreme Court of Montana.

Submitted on Briefs April 27, 2000.

Decided March 20, 2001.

William F. Hooks, Appellate Defender Office, Helena, MT, for Appellant.

Joseph P. Mazurek, Montana Attorney General, Pamela P. Collins, Assistant Montana Attorney General, Helena, Montana; Robert McCarthy, Silver Bow County Attorney, Brad Newman and Samm Cox, Deputy Silver Bow County Attorneys, Butte, MT, for Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Merlin LaDue (LaDue) appeals from an order entered by Montana's Second Judicial District Court, Silver Bow County, denying his request to call additional witnesses at trial for impeachment purposes. LaDue, charged with attempted deliberate homicide, was found guilty of aggravated assault and now appeals. We affirm the District Court's ruling.

¶ 2 The issues on appeal are:

¶ 3 1. Whether the District Court abused its discretion when it denied LaDue's motion to call additional witnesses after trial had begun.

¶ 4 2. Whether LaDue's constitutional right to present a defense was violated when the District Court denied his motion to call additional witnesses.

BACKGROUND

¶ 5 LaDue, Owen Ah-Mu and Dale Abad had been drinking beer for a number of hours at LaDue's home in Butte, Montana. They had purchased seven cases of beer for consumption that day, sharing some of it with acquaintances. After Ah-Mu agreed to pay LaDue's girlfriend, Carolyn Jacquez, $2 for gas, she drove them to the apartment of Alipati Taufagu and Rose Lakel. Taufagu and Ah-Mu had been raised together, and considered themselves brothers. Ah-Mu immediately proceeded to enter the apartment building without tendering the agreed-upon $2. Alipati observed that LaDue and Abad were engaged in an altercation, and called it to Ah-Mu's attention. LaDue was attempting to collect the $2. Ah-Mu returned to the scene and intervened in defense of Abad, who he claimed was his "best friend."

¶ 6 The specific details contained in the testimony of the witnesses differ slightly at this point. No witness claims that Ah-Mu either possessed or brandished a weapon of any kind. LaDue was observed by several witnesses to have brandished his knife early in the confrontation, but put it back in his pocket, only to retrieve it a short time later and strike Ah-Mu in the chest and shoulder area, resulting in life-threatening puncture wounds to Ah-Mu. LaDue did not dispute these facts, but claimed he did so in self-defense. Ah-Mu is approximately 6 feet 2 inches tall and weighed around 250 pounds, while LaDue is approximately 5 feet 10 inches and weighed around 160 pounds.

¶ 7 LaDue hurried from the scene with Jacquez in her car, throwing the knife out the window, and told Jacquez that he thought he had killed Ah-Mu. They traveled to LaDue's residence, where LaDue proceeded to wash his clothing and shower. When police arrived, Jacquez told them LaDue had already left, but he was apprehended trying to escape through a basement window.

¶ 8 LaDue was charged by information with the offense of attempted deliberate homicide, a felony in violation of §§ 45-5-102(1)(a) and 45-4-103(1), MCA, and pled not guilty. Pursuant to a plea agreement, the charges were reduced by an amended information to aggravated assault, to which LaDue pled guilty contingent upon his acceptance to boot camp at the Montana State Prison (MSP). MSP officials denied his application to boot camp, and LaDue withdrew his guilty plea to the lesser charge, and was recharged by amended information with attempted deliberate homicide, and again pled not guilty.

¶ 9 There was unquestionably some measure of physical contact between the two men. Different persons testified that Ah-Mu made a statement to the effect, "what about your knife, bitch?" to LaDue. Debbie Dobb, a nurse and assistant manager of the apartment complex, who observed much of the sequence of events from her apartment before and after calling the police, could not hear the verbal confrontation between LaDue and Ah-Mu. She testified at trial that at one point one man had the other against a fence, and when she returned from calling police their respective positions had switched. She also testified that while LaDue was hitting or swinging at Ah-Mu, she did not see Ah-Mu hit or swing at LaDue. LaDue attempted to elicit contradictions in Dobb's oral testimony versus her statement to police shortly after the incident. At trial, Dobb stated that Ah-Mu had his hands "around LaDue's shoulders," while in her statement to police two days following the stabbing she stated that Ah-Mu was talking to LaDue with a finger in his face.

¶ 10 Regina Tracy testified following Dobb's testimony. Tracy stated she did not see Ah-Mu raise his hands or strike at LaDue. On cross-examination, LaDue attempted to point out an inconsistency in Tracy's statement at trial versus her statement to police immediately following the altercation, where she had stated that Ah-Mu was pointing in LaDue's face. She deferred to her earlier statement to police, saying at trial that she simply couldn't remember that particular fact.

¶ 11 Witness Michael Moore, a resident of the complex, observed that Ah-Mu was backing LaDue down the sidewalk. He did not see Ah-Mu strike or push LaDue, though one hand was in front of him, but that in his opinion Ah-Mu's actions were aggressive. He then saw LaDue "hitting like a girl," striking Ah-Mu twice, but he didn't see anything in LaDue's hand.

¶ 12 Following Dobb's testimony, but prior to Tracy's testimony, a paralegal for LaDue's defense counsel overheard Dobb and Tracy discussing the case in the women's restroom during a break in the trial. Immediately after the break LaDue moved to add his paralegal to the witness list, along with Carolyn Skinner, the mother of Carolyn Jacquez, who was the girlfriend of LaDue and the mother of his child. LaDue asserted that Dobb and Tracy were essentially coordinating their testimony to his disadvantage, and that their testimony at trial differed substantially from their earlier statements to police. While LaDue made no attempt to recall Dobb as a witness to inquire about the alleged verbal exchange with Tracy, LaDue did pose questions regarding the restroom conversation to Tracy in front of the jury. The court addressed LaDue's request outside the presence of the jury. The State objected to the testimony of the paralegal, arguing that as an agent of LaDue's counsel, neither his counsel nor his counsel's agent could testify as a fact witness. The State further objected to Skinner testifying, as she had been present in the courtroom during the entire trial, in contrast to all other witnesses, who had been excluded from the courtroom at LaDue's request. Finally, the State argued that any error that may have resulted from the exclusion of the two proposed witnesses was harmless. The court denied LaDue's request to add the additional witnesses, stating that Tracy's and Dobb's testimony was not substantially different from the statements given police investigators shortly following the stabbing.

¶ 13 LaDue was found not guilty of attempted deliberate homicide, but guilty of the lesser included offense of aggravated assault. He was sentenced to 20 years at MSP, with an additional 5 years for use of a dangerous weapon. LaDue appeals.

ISSUE 1

¶ 14 Whether the District Court abused its discretion when it denied LaDue's motion to call additional witnesses after trial had begun.

¶ 15 In State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263, we stated:

The standard of review for evidentiary rulings is whether the district court abused its discretion. The court has broad discretion to determine whether or not evidence is relevant and admissible, and absent a showing of an abuse of discretion, the trial court's determination will not be overturned.

In Gollehon we concluded that the probative value of 20 graphic photos of five murder victims outweighed the danger of unfair prejudice, and did not arouse jurors' passions any more than other evidence of Gollehon's conduct, and that the decision of the trial court to allow the photos into evidence was not an abuse of the court's discretion.

¶ 16 In the case sub judice, we are in essence asked by LaDue to find that the evidence he wished to offer through the two additional witnesses was probative in some way. The record supports the District Court's finding that the testimony of the two additional witnesses proposed by him was not probative. The differences in their statements to police and the testimony offered by both witnesses at trial did not result in two substantially different versions of events, one that implicated LaDue, and one that exonerated him. As a result, LaDue's contention that Dobb's trial testimony was more prejudicial to him than was her written statement to police is not meritorious.

¶ 17 Because their independent statements to police shortly after the stabbing are not notably inconsistent with their oral testimony at trial, LaDue necessarily infers that they must have therefore "fixed" their testimony immediately after the incident.

¶ 18 Nothing in the record supports such an inference; no witness states that they saw Tracy and Dobb engaged in private or public discussion about fixing their testimony to LaDue's disadvantage, and the investigating officers make no such reference, nor does LaDue offer any information to support such a conclusion. In fact, the record...