State v. White, 81-368

• Decision Date: 27 August 1982
• Docket Number: No. 81-368,81-368
• Parties: STATE of Montana, Plaintiff and Respondent, v. Jack WHITE, Defendant and Appellant.
• Court: Montana Supreme Court

Page 765

650 P.2d 765

200 Mont. 123

STATE of Montana, Plaintiff and Respondent, v. Jack WHITE, Defendant and Appellant.

No. 81-368.

Supreme Court of Montana.

Submitted May 11, 1982.

Decided Aug. 27, 1982.

Karla Gray argued, Butte, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Robert McCarthy, County Atty., Butte, Patrick Flemming argued and Christopher Miller argued, Asst. County Attys., Butte, for plaintiff and respondent.

SHEEHY, Justice.

Appellant Jack White was found guilty upon jury trial in the Second Judicial District Court, Silver Bow County, of the offense of felony burglary. He appeals from the judgment of guilty and from the 10 year sentence which was imposed. We affirm.

At approximately 4:00 a.m. on January 23, 1981, White was riding as a passenger in a car driven by Fritz Dahlman. The car was stopped by a Butte-Silver Bow law enforcement officer who observed the car driving along the street at night without lights, its brakelights flashing on and off. When he stopped the automobile, he discovered no license plates, but a license sticker which had expired at midnight just preceding. On top of the automobile Dahlman was driving was part of a roll-top desk stamped with the words "Schulte Glass." The other portion of the desk was sticking out of the rear compartment of the automobile. The investigating officer, by radio communication with his central headquarters, determined that Robert Schulte, the proprietor of Schulte Glass Shop in Butte, owned a roll-top desk which fitted the description of the roll-top desk in the automobile. Schulte came to the scene and identified not only the roll- top desk, but a vacuum cleaner and other items of evidence which were taken into the possession of the police. Dahlman and White were eventually charged with burglary. Both pleaded not guilty. Dahlman subsequently changed his plea to guilty and was granted a three year deferred sentence. He also testified against White.

A plea bargain was offered to White which would in exchange for his plea of guilty grant him a 10 year sentence with 5 years suspended. White decided not to accept the plea bargain, and his jury trial was set for June 16, 1981. On June 16, White's attorney appeared before the District Court and advised the court that White intended to rely on an alibi defense, and moved for a continuance of the trial date. The motion was granted and the trial was continued until June 18. Before the District Court granted the continuance, it required an affidavit from White that the first time he told his counsel about his alibi defense was on the date of the motion for continuance.

At the trial, Dahlman testified for the prosecution stating that White had been with him when he broke into the Schulte Glass Shop and took the items involved. White testified that he had been somewhere else at the time the crime was committed. White had two other witnesses testify supporting his alibi. During cross-examination, White was repeatedly asked why he had not raised his alibi defense earlier.

The jury found White guilty and the 10 year sentence was imposed upon White.

Issues raised by White are: (1) the prosecutor's inquiries into the appellant's post-arrest silence violated White's Fourteenth Amendment right to due process; (2) although White's counsel did not object to this cross-examination, this Court should consider the first issue under the plain error rule; and (3) the District Court imposed an increased sentence on White because he chose to exercise his right to a jury trial.

White contends that in his testimony at the trial, he did not testify on direct examination concerning any post-arrest actions. On cross-examination, however, he was asked by the prosecutor whether he had ever told his first attorney anything about his alibi defense, whether he had told the officers that arrested him that he had an alibi, when he had told his second attorney about his alibi, whether he ever told anyone in the county attorney's office about his alibi, or approached the judge or any other person respecting his alibi.

White contends that this type of cross-examination was repudiated by the United States Supreme Court in Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91.

Doyle does indeed hold that it is improper on cross-examination to inquire repeatedly as to why defendants did not tell the narcotics agent who arrested them about the frameup story later relied on by the defendants as an alibi for the crime.

The State contends that Doyle does not apply in this case, that the defendant in this case opened the door to his impeachment on cross-examination by the prosecutor, and this Court should look instead to State v. Wilson (1981), Mont., 631 P.2d 1273, 38 St.Rep. 1040, 1044, as controlling.

We find that White did indeed open the door to the kind of impeachment cross-examination to which he was subjected by the prosecutor. In his direct testimony, White said:

"Q. What did they say to you when they took you out of the car? A. They never said anything.

"Q. Did they cuff you? A. Yes.

"Q. Did they search you? A. Yes, they did.

"Q. Did any other police officers arrive after the first? A. Yes, there was one other patrol car that was there.

"Q. Did you ever say anything to a police officer? A. No, I never.

"Q. Did you ever confess to this crime? A. No, I never did.

"Q. Have you confessed to this crime since that date? A. No."

This Court said in Wilson, supra:

"[W]hen a witness voluntarily testifies, the privilege against self-incrimination is amply respected without need of accepting testimony freed from the antiseptic test of the adversary process. The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry. Such a witness has the choice, after weighing the advantage of the privilege against self-incrimination...