State v. Price

Citation2006 MT 79,134 P.3d 45,331 Mont. 502
Decision Date18 April 2006
Docket NumberNo. 04-809.,04-809.
PartiesSTATE of Montana, Plaintiff and Respondent, v. John Ronald PRICE, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Kevin S. Brown, Paoli & Brown, Livingston, Montana.

For Respondent: Honorable Mike McGrath, Attorney General; Carol E. Schmidt, Assistant Attorney General, Helena, Montana, Tara M. DePuy, County Attorney, Livingston, Montana.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 A jury convicted John Ronald Price of assault with a weapon, and the District Court for the Sixth Judicial District, Park County, sentenced him to the state prison for a term of twenty years with no eligibility for parole. On appeal, Price raises two issues, which we restate as follows:

¶ 2 Did the District Court abuse its discretion when it sua sponte objected to testimony elicited earlier in the trial, instructed the jury to disregard that testimony, and limited testimony on that same subject by a future witness?1


¶ 3 Shortly after midnight on April 26, 2004, someone drew a serrated knife across William Yocom's throat, leaving behind a non-fatal slit in his neck. Yocom did not see his assailant. Following an investigation of the incident, the State charged Price with assault with a weapon, in violation of § 45-5-213, MCA (2003).

¶ 4 Testimony at Price's trial, held September 15 and 16, 2004, established the following facts. The assault took place at Price's residence. At the time, Price shared the house with Frank Fouse. Yocom, who was already acquainted with both Price and Fouse, went over to the house during the late afternoon or early evening of April 25, 2004, to discuss renting a room in Price's basement. After seeing the room, Yocom visited with Price and Fouse in Price's living room. The three socialized for several hours, drinking beer and, later, whiskey. At some point, Fouse and Yocom engaged in "play wrestling" because, according to Yocom, Fouse "wanted to see what I was made of, pretty much, and just boys will be boys type attitude." The wrestling was so rough that Yocom ended up with a rib fracture which was treated at the hospital later that night, and Fouse exhibited several "raspberries" on his face, which one witness defined as "a rug burn, or you know, something, you'd gotten your skin pulled, it was pink. Not necessarily an abrasion, but some sort of irritant." Meanwhile, as Yocom and Fouse wrestled, Price sat calmly on the couch observing the activity, drinking his beer, and saying nothing.

¶ 5 The parties dispute what took place next. Yocom and Fouse both testified during the State's case-in-chief that sometime between midnight and 1:00 a.m. on April 26, they were standing in the living room approximately two or three feet apart facing each other and talking. Just then, Price — who Fouse testified had gone to the kitchen — allegedly returned to the living room, walked up behind Yocom, pulled Yocom's head back, "whipped out a knife and slit [Yocom's] throat." Although the knife cut deeply into Yocom's skin, it did not hit any critical structures in his neck and did not cause immediate bleeding. Yocom panicked, attempted to leave the house through the front door, which was locked, ran through the kitchen and ultimately exited through the garage. He flagged down a passing vehicle, and the driver gave him a ride to the hospital where he was treated for his injury. He received twelve stitches.

¶ 6 There was no evidence that another person had been in the house with Yocom, Price, and Fouse at the time of the assault. Thus, the defense sought to show that Fouse, not Price, had been the perpetrator. For instance, Yocom admitted on cross-examination that if Price had been standing where Yocom claimed he was at the time of the assault, then Yocom would have had to pass by Price when he ran from the living room into the kitchen and out the garage; yet, Yocom did not recall seeing Price at any time during and after the assault. There also was testimony that Yocom, in talking to medical personnel and the investigating officers that night, did not immediately identify the person who had caused his injury and that Fouse and Yocom had interacted at the police station after Fouse had given a statement but before Yocom had given one (an intimation that Fouse had influenced or "contaminate[d]" Yocom's identification of his attacker).

¶ 7 Of particular relevance to this appeal, Price sought to bolster his theory that Fouse had committed the assault with evidence that Fouse had a propensity for violence. In his opening statement, counsel for Price pointed out that

the County Attorney [in her opening statement] said that the State has no evidence as to why Mr. Price would slit this guy's throat. Keep in mind, though, when you're trying to figure out who would have a motive, look to [Fouse], the other individual who was there, the guy that was violently wrestling with Mr. Yocom to the extent that ribs have been broken. [Fouse] was the person with the motive that night to slit [Yocom's] throat.

¶ 8 Price had subpoenaed Mike Francell, who was to testify concerning Fouse's violent character. The prosecutor attempted preemptively to counter this evidence through a number of her own witnesses. For instance, during her direct examination of Fouse she remarked, without objection, "Now, there's also been some allegations by a guy, who used to be one of your friends, that you're kind of a violent guy,"2 to which Fouse replied, "You know, I guess, that's — everybody has their own opinion." The prosecutor also questioned Fouse's ex-wife, Lisa Fruin, and his ex-girlfriend, Marie Moore, without objection, concerning Fouse's character when he has been drinking. Fruin testified that, "He likes to play around and be silly. He's really in good spirits, for the most part." When asked whether "he get[s] mean, or violent," she replied, "No, he does not." Similarly, Moore testified that, "He would just, around me, he would always just, you know, he'd be fine. Sometimes he'd say some stuff, but usually it was just, you know, he'd get really drunk and then go to sleep." She stated that she had never seen him "get mean, or violent, when he was drinking."

¶ 9 In response to this testimony, defense counsel asked Fouse, without objection, "Do you get ornery, or violent, when you drink?" Fouse replied that he does not. Counsel also examined Fouse concerning an incident in which Fouse had armed himself with a butcher knife in anticipation of an altercation with Price. However, counsel did not shake Moore's opinion concerning Fouse's character for violence, and he did not address this issue at all with Fruin. Rather, it appears that he planned to introduce the bulk of his evidence concerning Fouse's propensity for violence through Francell, after the State had rested.

¶ 10 The foregoing testimony by Fouse, Fruin, and Moore was presented during the State's case-in-chief on the first day of trial. The following morning, prior to resuming the proceedings and out of the jury's presence, the District Court sua sponte raised an objection to the evidence introduced thus far concerning Fouse's character:

[T]he Court, listening to testimony yesterday had a real question. So, before we go any further, I want some answers. [¶] I am not sure, under the rules of evidence, that you can bring all this information up about Frank Fouse. I want to know what the defense's purpose is .... I don't think any of this testimony about Frank Fouse is admissible. What's your point in doing this? Or, can you tell me where you can, under the rules of evidence.

¶ 11 In response, defense counsel presented two grounds:

First off, we're contending that Mr. Fouse is the person that actually did the assault. So, I would argue that his propensity for violence, or not violence, would be admissible. [¶] Either way, the prosecution opened the door by asking his girlfriend, or ex-girlfriend, whether he was violent, or not. And I think the prosecution, on direct, asked him if he's violent on the stand, so the door was opened by the State by asking him, are you violent? ... So, I think I'm entitled. The door is open. If there was no grounds otherwise, the door is now open. The State can't ask him and have him, and his girlfriend, ex-girlfriend, say that he's not a violent person, and then not have me be able, then, to put a witness on to say otherwise.

¶ 12 Counsel also provided an offer of proof concerning Francell's expected testimony:

Francell will say that Fouse used to brag that he was a trained killer. He'll, also, say that Fouse, on one or more occasions, attacked him when his back was turned and therefore he would never — he knew never to have his back to Fouse. In this case, the victim was assaulted from behind. He'll also testify as to, and I quote, Frank would get crazy when he drank. And the State asked Frank how he gets when he drinks.

¶ 13 The prosecutor argued that because of Price's opening statement characterizing Fouse as the perpetrator, "the State was in a position where we had to ask the witnesses if they'd ever — and I didn't ask [Fouse] if he was violent, I asked him how he acted when he was drinking. So, I'm not sure that the State has opened the door." Thereafter, the court ruled that Price could question Francell only as to how Fouse behaves when he drinks. In addition, after bringing the jurors in, the court instructed them as follows:

Members of the jury, the Court has determined that there was testimony yesterday about the propensity for nonviolence, or violence, of a witness named Frank Fouse. The Court has determined that is not relevant testimony. It should not be considered by the jury, in any manner, when arriving at a decision in this case.

¶ 14 In conformity with the court's ruling, defense counsel later questioned Francell as follows:

Q. Did you have...

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