State v. Smith
| Decision Date | 26 September 1975 |
| Docket Number | No. 12830,12830 |
| Citation | 541 P.2d 351,168 Mont. 93 |
| Parties | The STATE of Montana, plaintiff and Respondent, v. Lulu SMITH, a/k/a Lulu Matte, Defendant and Appellant. |
| Court | Montana Supreme Court |
Mark P. Sullivan, Butte, for defendant and appellant.
Robert L. Woodahl, Atty. Gen., John F. North, Asst. Atty. Gen., argued, Helena, Gary Winston, County Atty., Butte, for plaintiff and respondent.
This is an appeal by defendant, Lulu Smith, from a judgment of conviction of the crime of manslaughter entered in the district court, Silver Bow County.
On April 14, 1973, the Parker Singers, an Indian singing group, including Martin Standing Rock and three of his relatives, left the Rocky Boy Reservation, near Havre, and journeyed to Butte to perform at a Pow Wow. After the Pow Wow, the men went to a Butte bar where they met several Indian women from Butte, including defendant, and were invited to a party at the home of one of the women. After a night of partying and drinking, an altercation took place about dawn, ending with the men and women arguing and fighting outside in the street. The result of this altercation was one man with a stab wound in the leg and another, Martin Standing Rock, dead from a stab wound in the chest.
The defendant was charged with manslaughter and entered a plea of self-defense to the charge. About an hour after the act, defendant gave a statement to the county attorney. At a later date she testified she was intoxicated, shaken and in shock at the time of this statement.
At the trial, the State's witnesses testified the deceased had not provoked the attack. Defendant contradicted this testimony, claiming that due to the size and drunken condition of the deceased, she was doing what she had to do to defend herself.
The jury returned a verdict of guilty and defendant received a five year sentence, with three years suspended, from which she now appeals.
On appeal defendant contends: (1) that the district court improperly allowed the State to impeach her testimony by means of a prior inconsistent statement taken shortly after the stabbing; (2) that the district court erred in allowing the State to impeach the testimony of a 15 year old witness with prior inconsistent statements; and (3) the propriety of the district court in refusing to give defendant's proposed instruction on self-defense was qquestioned.
In the course of the trial, as part of the State's cross-examination of defendant, the prosecutor referred to statements made by the defendant while being questioned by the county attorney about an hour after the incident. Defendant argues the court improperly allowed the State to introduce these prior inconsistent statements because the State failed to show the statements were voluntary. Defendant alleges the statements were not voluntary because she was intoxicated and in a state of shock at the time of making the statements. She also contends that she did not voluntarily waive her Miranda rights before giving the statements.
This Court has stated that it is unnecessary to establish a foundation of voluntariness for a prior inconsistent statement if the statement is being introduced only to impeach the witness and is not entered as substantive evidence in the state's case in chief. State v. Quilliam, 108 Mont. 68, 88 P.2d 53. In Quilliam at pages 72-73, 88 P.2d at page 55 this Court held:
.see also, Curry v. United States (2nd cir.) 358 F.2d 904, cert. den. 385 U.S. 873, 87 S.Ct. 147, 17 L.Ed.2d 100; State v. Osbey, 213 Kan. 564, 517 P.2d 141; Small v. State (Tex.Cr.App.) 466 S.W.2d 281.
The sufficient foundation for the introduction of prior inconsistent statements for impeachment purposes is set forth in section 93-1901-12, R.C.M.1947, as follows:
'A witness may also be impeached by evidence that he has made, at other times, statements inconsistent with his present estimony; but before this car be done the statements must be related to him, with the circumstances of times, places, and persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. * * *'
This Court, in interpreting the predecessor (section 8025, R.C.M.1907) stated iin State v. Gaimous, 53 Mont. 118, 127, 162 P. 596, 600:
'Our statute * * * prescribes that before a witness can be contradicted as to statements made, the circumstances of time, place, persons present and language used must be mentioned to the witness sought to be impeached. * * *'
See also, Spurgeon v. Imperial Elevator Co., 99 Mont. 432, 43 P.2d 891.
As stated in the last clause of section 93-1901-12, the witness is allowed to explain the prior statements so as to prevent injustice by giving him or her an opportunity to explain the apparent inconsistency. State v. Board, 135 Mont. 139, 337 P.2d 924; State v. Heaston, 109 Mont. 303, 97 P.2d 330; State v. Keays, 97 Mont. 404, 34 P.2d 855.
The record shows that the State followed the requirements of section 93-1901-12 providing sufficient foundation for introducing the prior inconsistent statements.
Once the prior inconsistent statements are properly introduced into evidence, this Court has said in State v. Peterson, 102 Mont. 495, 499, 59 P.2d 61, 63:
'* * * the extent to which impeaching evidence impaired the credibility of a witness assailed is a question exclusively for the jury.' * * *
See also, Batchoff v. Craney, 119 Mont. 157, 172 P.2d 308; State v. Duncan, 82 Mont. 170, 266 P. 400.
Defendant also contends her prior statements are inadmissible because she had not waived her right to counsel before giving the statements. In two recent cases, the United States Supreme Court has held that prior inconsistent statements which are inadmissible in the prosecution's case in chief, due to failures under the Miranda rules, are admissible to impeach the defendant's credibility on matters not collateral to the issues of the case. In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 645, 28 L.Ed.2d 1, 4, 5, Chief Justice Burger stated:
The Chief Justice went on to say:
'The shield provided by Miranda cannot be preverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.'
In Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570, Mr. Justice Blackmun reaffirmed the language in Harris and stated:
'We are, after all, always engaged in a search for truth in a criminal case so long as the searchis surrounded with the safeguards provided by our Constitution. * * *'
We find the prior inconsistent statements were properly admitted at the trial.
The defendant contends the district court erred in not submitting the entire prior statement to the jury.
As a general rule:
'Where a portion of a statement previously made by the witness and apparently inconsistent with his present testimony has been introduced to impeach such witness, the entire statement is admissible in rebuttal. * * *' 98 C.J.S. Witnesses § 622, page 636.
The record shows that defendant's counsel introduced on redirect those portions of her prior statement which he deemed relevant to rehabilitate her.
We find that the district court properly allowed the State to impeach defendant's testimony by means of prior inconsistent statements.
Defendant also contends the district court...
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