State v. Short

• Decision Date: 11 July 1985
• Docket Number: No. 84-427,84-427
• Citation: State v. Short, 702 P.2d 979, 217 Mont. 62, 42 St.Rep. 1026 (Mont. 1985)
• Parties: STATE of Montana, Plaintiff and Respondent, v. Curtis Vaughan SHORT, Defendant and Appellant.
• Court: Montana Supreme Court

Page 979

702 P.2d 979

217 Mont. 62

STATE of Montana, Plaintiff and Respondent, v. Curtis Vaughan SHORT, Defendant and Appellant.

No. 84-427.

Supreme Court of Montana.

Submitted April 15, 1985.

Decided July 11, 1985.

John E. Riddiough argued, Missoula, for defendant and appellant.

Mike Greely, Atty. Gen., John Paulson argued, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Co. Atty., Missoula, Karen Townsend argued, Deputy County Atty., for plaintiff and respondent.

GULBRANDSON, Justice.

The defendant appeals from a judgment and a denial of his motion for a new trial by the District Court of the Fourth Judicial District, Missoula County. The judgment was entered and the motion denied on May 24, 1984, after a jury verdict of guilty on two counts of felony theft. We affirm.

In January 1983, the Oregon State Police contacted Fred Simmons, an informant, to assist in an investigation of Curtis Short, the defendant, being conducted by the Missoula County Sheriff's Office. Simmons had known and worked with Short about eleven or twelve years earlier. The Oregon State Police arranged for Simmons to contact Short. During a meeting the next day, Simmons and Short discussed "boning out" or disassembling trucks and they agreed Simmons would provide titles and license plates for vehicles which Short would steal.

Short planned to travel to Missoula on January 26, 1983, to arrange for the theft of a semi-tractor which had been "special ordered" by someone in California. Simmons informed the Oregon authorities of the plans and they passed the information along to the Missoula County Sheriff's Office. The Oregon police rented a maroon Buick for Simmons, gave him money for expenses and sent another informant, Mike West, to accompany Simmons and Short to Missoula.

Short, Simmons and West were under constant surveillance by the Missoula authorities from the time they arrived in St. Regis and Missoula until they returned to Oregon. When they arrived in Missoula, Simmons and West contacted the Missoula County Sheriff's Office and West was fitted with a concealed radio transmitter. The three men met with several other people to arrange for the theft of two semi-tractors, a green 1981 Kenworth owned by Gebert's Trucking of Missoula and a white 1977 Peterbilt owned by Montana Medical Supply of Missoula. These trucks were substitutes for the one Short originally intended to steal because that vehicle was no longer available. Short also met with a Missoula businessman and discussed camouflaging serial numbers.

At about 9:15 p.m. on January 27, 1983, a Missoula deputy observed the maroon Buick and Short at the site where the Gebert semi was parked. Short got out of the car, entered the semi through the bottom portion of the passenger side and drove it away without turning on the headlights. With the Buick following, Short drove the semi to the Interstate, exchanged places with someone in the car and drove to the Montana Medical facility. There he drove off in the Montana Medical truck and trailer. Deputies followed the truck to East Missoula, where Short dropped the trailer and then headed west on the Interstate. The two trucks and the Buick were under surveillance until they arrived at Short's farm at Canby, Oregon.

Oregon authorities continued to monitor Short's activities. They established a "safe house" for Simmons to live in which was equipped with a telephone recorder, formed Suncrest Trucking, Inc., to do business and provided phony truck titles and vehicle identification numbers for Simmons' use in the operation. The authorities were unable to keep up with the increasing number of vehicles being stolen by Short, so in April 1983, they terminated the operation.

On October 28, 1983, an information was filed charging Short with two counts of felony theft. After the omnibus hearing on March 9, 1984, the State gave notice of intent to rely on other crimes evidence. The trial began on April 9, 1984. At trial the State presented the testimony of officers from the Oregon State Police and the Missoula County Sheriff's Office who participated in the investigation and surveillance. Simmons, West and two men who had met with Short and Simmons in Missoula prior to the thefts, also testified for the State. Short's prior statement and an oral admission to an Oregon officer were also introduced at trial.

During cross-examination of Simmons, counsel for Short sought to introduce copies of bench warrants issued for Simmons in connection with his failure to appear on theft charges in Washington. When Simmons acknowledged on the stand that he had failed to appear without lawful excuse, the court refused to admit the warrant copies. Simmons indicated that he did not wish to discuss the pending charges in Washington, asserting his privilege against self-incrimination. After eliciting that the charges involved the theft of Short's property, defense counsel attempted to discuss the details of those charges, and the State's objection was sustained. An Oregon detective later testified regarding the property dispute between Short and Simmons.

Defense counsel presented the testimony of Thomas Cromwell, a brother of one of the alleged partners in the Oregon thefts, who related certain conversations he had with Simmons in late December 1983 and early January 1984. He attempted to introduce tape recordings of the conversations, but the trial court refused to admit them. The trial court also refused two proposed defense instructions setting forth Short's "theory" of defense.

At the close of the trial, on April 13, 1984, the jury returned a verdict of "guilty" on both counts of theft.

Later, Simmons was arrested on the Washington charges and gave a statement to an Oregon attorney containing information not testified to at Short's trial. Short made a motion for a new trial based on this information which was argued before the District Court on May 24, 1984. The court denied the motion and sentenced Short to a total of twenty years with twelve suspended. He was designated a non-dangerous offender for purposes of parole.

The four issues presented on appeal are:

(1) Whether the District Court violated defendant's Sixth Amendment right to confrontation of witnesses by not allowing examination of Simmons regarding Washington charges against him for the purpose of showing bias or motive to be untruthful during defendant's trial?

(2) Whether the District Court erred in not allowing the introduction of tape recordings of telephone conversations between Simmons and another witness, Cromwell, which were offered by defendant to impeach Simmons?

(3) Whether the District Court erred in not giving two of defendant's proposed instructions which explained his "quasi-entrapment" theory of the case?

(4) Whether the District Court erred in denying defendant's motion for a new trial on the above grounds and on the basis of newly discovered evidence?

The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." This right is secured for defendants in state as well as in federal criminal proceedings. Pointer v. Texas (1965), 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. "A primary interest secured by the confrontation clause is that of cross-examination." State v. Camitsch (Mont.1981), 626 P.2d 1250, 1255, 38 St.Rep. 563, 568, citing Davis v. Alaska (1974), 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347.

A witness' credibility may be attacked through cross-examination to reveal possible biases, prejudices, or ulterior motives if they relate directly to issues or personalities in the case at hand. Davis, 415 U.S. at 315, 94 S.Ct. at 1109, Camitsch, 626 P.2d at 1254-1256. However, the extent of cross-examination on whether a witness has been accused of another or prior crime is within the trial court's discretion. State v. Carns (1959), 136 Mont. 126, 136, 345 P.2d 735, 741; State v. Howard (1904), 30 Mont. 518, 77 P. 50; see also, Alford v. United States (1931), 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624. The extent of cross-examination for these purposes is restricted because of the limited probative value in relation to credibility. An unproven charge does not necessarily indicate a witness' credibility, since innocent persons may be arrested or accused of a crime and are presumed innocent until guilt is legally established. 81 Am.Jur.2d, Witnesses Sec. 587. This Court has permitted cross-examination on threats or inducements by the State, the failure to charge the witness with a crime and the reason for the witness' presence in jail, State v. Ponthier (1959), 136 Mont. 198, 346 P.2d 974; on claimed intimidation of witnesses, State v. Booke (1978), 178 Mont. 225, 583 P.2d 405; and on threats and assaults to the witness by a party, Cissel v. Western Plumbing and Heating (1980), 188 Mont. 149, 612 P.2d 206, 37 St.Rep. 966.

Short argues that the trial court unconstitutionally restricted his cross-examination of Simmons by not allowing extensive examination of pending charges against Simmons. Simmons admitted under cross-examination that he had failed to appear on bench warrants from the State of Washington. He also acknowledged that the charges in Washington involved an allegation that he had stolen Short's property. The jury heard about Simmons' participation in Short's crimes, his alleged theft of Short's property, his fear of "the mob" and his desire for protection. This cross-examination brought out all the information necessary to argue the credibility, motive and bias of this witness to the jury. We hold that limiting the extent of the cross-examination on the pending charges in Washington did not violate Short's right to confrontation of witnesses and was not an abuse of the trial court's discretion.

During cross-examination, Simmons asserted his privilege against self-incrimination concerning the pending charges in Washington. That privilege is...