State v. Sadowski

No. 90-065

IN THE SUPREME COURT OF THE STATE OF MONTANA

1991

THE STATE OF MONTANA ._. L

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Plaintiff and Respondent,

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PHILIP SADOWSKI, .- i ,

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Defendant and Appellant.

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APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Philip F. Walsh; Lineberger & Walsh; Bozeman,

Montana

Stephen D. Roberts, Bozeman, Montana

For Respondent:

Marc Racicot, Attorney General, Helena, Montana

Patti Powell, Asst. Atty. General, Helena, Montana

A. Michael Salvagni, County Attorney, Bozeman,

Montana

Submitted on Briefs: October 26, 1990

Decided: January 28, 1991

Filed:

Justice R. C. McDonough delivered the Opinion of the Court.

The defendant Philip Sadowski appeals the judgment and verdict

of the Montana Eighteenth Judicial District Court, Gallatin County

convicting him of the offense of deliberate homicide for the

shooting of Robert Hare, pursuant to 5 45-5-102, MCA. The Court

sentenced Sadowski to forty years in the Montana State Prison for

the deliberate homicide conviction plus ten years consecutively

for the use of a weapon and declared the defendant ineligible for

parole for 17 years. We affirm.

Sadowski presents three issues for review on this appeal:

1) Did the District Court err in denying the defendant's

motion in limine and admitting over the defendant's continuing

objection evidence of uncharged prior misconduct by the defendant?

2) Was it plain reversible error for the prosecutor to

allegedly comment upon and emphasize, as well as cross-examine the

defendant concerning the defendant's post-arrest silence after the

defendant had received his Miranda warnings?

3) Was it reversible error for the investigating police

officers not to take into evidence allegedly crucial items that may

have been weapons used by the victim that would support the

defendant's affirmative defense of justifiable use of force?

The facts in this case, except those facts immediately

surrounding the shooting of Robert Hare, are largely undisputed.

The defendant Philip Sadowski, operated a furniture restoration and

repair business called the Furniture Doctor in Gallatin County near

2

Four Corners, approximately eight miles west of Bozeman. The

business was located in a workshop which connected with his

residence. On April 14, 1989, Sadowski and his cousin, Sid

Warburton, who was visiting from California, delivered an antique

backbar to some customers in Pray, Montana. Sadowski and Warburton

returned to Four Corners and had dinner at the Korner Restaurant

and then proceeded to the Korner Club Bar at about 8 p.m. where

they played pool and drank beer until closing. During this time,

Sadowski met Frank "Hawkn McKinnis and his girlfriend Lynn Bell.

sadowski did not know either ~ c ~ i n n i s Bell prior to striking up

or

a conversation with them at the bar. Mc~innisand sadowski talked

about woodworking. ~cKinnisstated that he didn't have access to

good woodworking tools and Sadowski told him he had a full

woodworking shop, and that they could stop by after closing to have

a drink and look around Sadowskits shop.

Sadowski, Warburton, McKinnis, and Bell arrived at Sadowskits

house at approximately 2:15 a.m. The deceased, Robert Hare,

arrived by himself soon afterward. Sadowski had not met Hare prior

to Hare knocking on the door and walking into the Furniture Doctor

building. However, Bell introduced Hare as a friend, and Sadowski

allowed him in.

Once in the shop, the five people drank and talked.

Admittedly, everyone present was intoxicated. Sadowski and

McKinnis conversed separately from the others as their attentions

were focused primarily on woodworking and the designs that McKinnis

was cutting from pieces of wood with Sadowskivs band saw. Bell,

Warburton, and Hare talked with one another on the other side of

the shop.

At about 3: 30 a.m. McKinnis asked Sadowski if he could see his

stock of wood, which was located just outside the main room of the

shop. While Sadowski and McKinnis looked at the wood, in the other

room they heard Sadowski's cousin Warburton yelling, IvTheyvre

hurting me!" Sadowski and McKinnis then went back into the shop

and saw Warburton with Hare and Bell near the door to the tool

room. Sadowski testified that he thought this incident was odd

because he had never seen his cousin behave that way, but he did

nothing. He testified that he was concerned but he passed the

incident off, and returned to the other side of the shop when

McKinnis called him back to where he was working.

According to Sadowski's testimony, McKinnis later asked

Sadowski to go into his living quarters to get more beer. While

Sadowski was in the living quarters, getting the beer, and was out

of sight but within hearing distance of the people in the workshop

area, he heard his cousin complain of being hurt again. Sadowski

testified that he became concerned at this time that perhaps a

robbery would take place by these strangers he had invited into his

home. He testified that he felt that he needed to be prepared

should something happen, so he went into his bedroom, got his

revolver and placed it in his belt in the back of his pants.

At this point the testimony is in dispute. Sadowski testified

that upon returning to the shop he saw his cousin and Lynn Bell

kissing, announce that they were going to get some beer, and walk

out of the shop into the apartment area. Sadowski testified that

because McKinnis and Bell appeared to be a couple and McKinnis was

turned at the band saw and hadn't seen what happened, Sadowski

turned to Rob Hare and asked, "What's going on out there?"

Sadowski testified that upon asking this, Hare became very

animated, started swinging his hand around, and said "Well, you

know what's going on out there. She's sort of jerking him around

and this is how we get our power." Defendant testified that he was

very frightened at Rob Hare's comment, wondering if they were

planning a robbery or perhaps belonged to a cult. Sadowski

testified that when he asked Rob Hare "What the hell do you mean

by that?" Hare allegedly responded, llWell,that's just what we

do. "

Sadowski then testified that he pulled his gun out, held it

in front of him without pointing it and said to Hare, "Look, I

don't know what the hell's going on at this point, but I want you

to. .. .I1 and that he was going to tell everyone to leave.

Hare allegedly replied I1Oh, you can't stop me with that,''

meaning Sadowski's gun. Sadowski claimed to have backed up, asking

Hare to not come any closer, but Hare allegedly continued to

approach him yelling, ''You can't stop me! Sadowski testified that

he got no response from McKinnis when he asked him to stop Hare.

Hare allegedly kept approaching Sadowski, raised his right hand up,

had his left hand out in front of him, crouched, and moved quickly,

looking as if he were going to hurl himself at Sadowski. Sadowski

testified that when he felt he could retreat no more and that Hare

would be upon him, he raised his gun up, aimed it at Hare's chest

and shot him.

Hawk McKinnis1sversion of the shooting differs substantially.

He testified that he turned off the band saw and turned around and

saw Hare standing by the entrance to the shop ten to twelve feet

from Sadowski. He testified that he heard defendant and Rob Hare

in a low, regular, conversation, after which he heard defendant

tell Rob Hare he was "tired of his bullshit" and then saw Sadowski

level a pistol at and shoot Hare. He testified that Hare was

standing in an upright position when shot. McKinnis testified that

Sadowski then pointed the pistol at him and he told Sadowski that

if he was going to shoot him, "he should do a good job of it or

call the police.'' Sadowski telephoned the police and requested an

ambulance immediately after the shooting. When officers arrived

at the scene, Sadowski identified himself as the one who shot Hare,

and officers then placed him under arrest and read him his Miranda

rights. Rob Hare was taken to the hospital where he was pronounced

dead.

At trial, sadowski acknowledged that he had purposely or

knowingly caused the death of Rob Hare and asserted as his sole

defense that he was justified in shooting Hare because Hare was

attacking him. Prior to trial, the state gave notice of its

intention to llintroduceat trial evidence of other acts to show

intent, knowledge, opportunity and absence of mistake or accident"

pursuant to State v. Just (1979), 184 Mont. 262, 602 P.2d 957.

The trial court denied Sadowskitsmotion in limine on prior acts

evidence.

The evidence presented by both sides in the four day trial

was extensive. Forensic scientists testified that the bullet

traveled downward through Rob Hare's body at a thirty degree angle

and that this was inconsistent with the victim being in an upright

position at the time of the shooting. Hawk McKinnis8 credibility

was placed at issue throughout the trial, and as the only

eyewitness, his testimony contradicted Sadowski's. Evidence of the

victim's character for aggressiveness while intoxicated was

introduced by the defense and rebutted with evidence by the

prosecution. ~hirty-onewitnesses in all testified. Sadowski's

cousin, id Warburton, although subpoenaed and listed as a witness

by both the defense and the prosecution, did not testify. The

jurors were allowed a view of the crime scene. After deliberation,

the jury found Sadowski guilty of the offense of deliberate

homicide, to which Sadowski now appeals. More specific facts will

be developed in the discussion of Sadowskits issues on appeal as

needed.

I.

As his first issue, Sadowski alleges that the District Court

erred in admitting evidence of a past incident of misconduct where

Sadowski admittedly pointed a gun at a deputy sheriff two years and

eight months prior to the homicide. Our standard of review

relating to such evidentiary rulings is to determine whether in

admitting the evidence the District Court abused its discretion.

Steer, Inc. v. Dept. of Revenue (Mont. 1990), - P.2d -, I

47 St.Rep. 2199, 2200. The District Court has broad discretion to

determine whether or not evidence is relevant. Absent a showing

that the District Court has abused its discretion, this Court will

not overturn the District Court's determination of relevancy.

State v. Oman (1985), 218 Mont. 260, 264, 707 P.2d 1117, 1119-

1120. In the prior incident Sadowski had been having marital

problems and phoned the sheriff's office and informed them that he

was going to shoot himself. Deputy Campbell came to Sadowski's

residence and Sadowski informed him that his marriage was breaking

up and that was the cause of his distress. Deputy Campbell talked

with Sadowski for approximately two and a half hours until

Sadowski's wife came home. As Deputy Campbell talked to her,

Sadowski got up from the couch and pointed a gun at him, allegedly

stating that he now had control over the situation rather than

Campbell. Deputy Campbell ducked behind the bookcase and crawled

backwards out of the house. He testified that once outside he

looked in the window and observed Sadowski first point the gun at

his own head and then give the gun to his wife, who came out and

gave the gun to Campbell. Sadowski was then arrested and placed

in protective custody but was not charged with a crime.

After receiving the State's Just notice the District Court

ruled on the defendant's motion in limine to bar admission of this

incident:

the central issue to be decided in this matter is whether

the Defendant lawfully used a firearm under a stressful

situation, and the exceptions to the general rule which

prohibit evidence of other acts of misconduct would allow

the State to introduce such testimony to show intent or

motive and to explain away accident or mistake. So it

is the Court's ruling that an allegedly unlawful use of

a firearm three years prior to this is relevant; the jury

should hear about it to determine the manner in which

the Defendant acted in the present condition.

The "exceptions1'to the general rule that evidence of other crimes,

wrongs or acts is inadmissible to prove a defendant's character

referred to in the court's ruling are found at Rule 404(b),

M.R.Evid. which provides:

Other crimes, wrongs, acts. Evidence of other crimes,

wrongs, or acts is not admissible to prove the character

of a person in order to show that he acted in conformity

therewith. It may, however, be admissible for other

purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of

mistake or accident.

As with its federal counterpart, the Montana rule adopts an

inclusionary rather than an exclusionary approach, that is, use of

the word "may1'indicates that the second sentence actually lists

theories of relevant examples rather than exceptions. State v.

Johns (Or. 1986), 725 P.2d 312, 319-320.

In addition to the requirements of Rule 404(b), other acts

evidence should meet the procedural as well as substantive

requirements set out by this Court in State v. Jensen (1969), 153

Mont. 233, 455 P.2d 631; and State v. Just (1979), 184 Mont. 262,

602 P.2d 957. The test of admissibility set forth in these cases

is

(1) similarity of crimes or acts;

(2) nearness in time, and

(3) tendency to establish a common scheme, plan, or

system;

(4) the probative value of the evidence is not

substantially outweighed by the prejudice to the

defendant. (Emphasis in original.)

Just

I 602 P.2d at 961. We recently summarized the current state

of the Just requirements in State v. Medina (Mont. 1990), 798 P.2d

In considering the first prong of the test, we have

previously held that "prior acts need not be identical

to the offense committed but be merely of 'sufficient

similarity1"in order to comply with this first criteria.

State v. Eiler, 762 P.2d at 216, quoting State v. Tecca,

220 Mont. 68, 714 P.2d 136 (1986). ...

With regard to nearness in time, each case must be

examined in light of its unique set of facts. See State

v. Hansen, 187 Mont. 91, 608 P.2d 1083 (1980), where we

allowed two and one-half years; State v. Stroud, 210

Mont. 58, 683 P.2d 459 (1984), where we allowed three and

one-half years; and State v. T.W., 220 Mont. 280, 715

P.2d 428 (1986), where we allowed four years when the

facts indicated that defendant did not have a prior

opportunity. ...

.

. . A common scheme, plan, or system is indicated

by other crimes evidence when, compared with the current

charge, the crimes possess a unique similarity which

supports a plan to carry out a scheme. Just, 602 P.2d

at961. ...

Any evidence of other crimes will have prejudicial

implications on the defendant. Just, 602 P.2d at 961.

As a result this court adopted procedural safeguards to

decrease these prejudicial implications. Just, 602 P.2d

at 963-64. Although these procedural safeguards do

alleviate some of the prejudice to the defendant, they

still do not replace the courtts ultimate task of

weighing the probative value of the other crimes evidence

against its prejudicial effect.

Medina, 798 P.2d at 1035-1036. In State v. T.W. (1986), 220 Mont.

280, 715 P.2d 428, this Court held that failure to meet one element

of the Just formula was not enough to refuse admission of prior

acts. I1Admission of evidence cannot be denied solelv on the fact

that it was not too near in time to the incident in question.

Factors other than mere lack of time must be determined by the

circumstances of the case.I1 T.W., 715 P.2d at 431. Here, although

the crimes were not identical, they were like enough to meet the

Just similarity criteria as well as fall within the boundaries of

nearness in time. Furthermore, the trial court performed its

function of balancing the Just requirements as well as the

prejudice versus the probative value of the evidence and found that

the ttallegedly

unlawful use of a firearm three years prior to this

is relevant; the jury should hear about it to determine the manner

in which the defendant acted in the present ~ondition.~~

Our analysis of the admissibility of other crimes evidence

does not end with the fulfillment of the requirements of Just. The

State must also demonstrate that the evidence is logically relevant

towards one of the Rule 404(b) examples or some other fact in issue

and not merely introduced as proof of a character defect or

propensity of the defendant in order to show that he acted in

conformity therewith. Rule 404 (b), M.R. Evid. The trial judge

ruled that the evidence was admissible to show intent or motive and

to explain away accident or mistake. To be admissible as relevant

towards motive, the commission of the first crime or act should

give rise to a motive or reason for the defendant to commit the

second crime. See e.q. State v. Simpson (1939), 109 Mont. 198, 95

P.2d 761. Thus, while the District Court mentioned the motive

exception in its ruling, the applicable Rule 404(b) example here

is intent. In this regard, both the State and the defendant urge

us to examine the facts of this case in light of the Oregon Supreme

Court's analysis in State v. Johns, supra, 725 P.2d 312.

In Johns the Court noted that intent or state of mind is often

the most difficult element of a crime to prove. Johns, 725 P.2d

at 321. The Johns court also noted that intent and absence of

mistake or accident were really the same issue under the facts of

that case. Under the facts of this case, we note that the issue

of intent is really synonymous with absence of a justification for

the use of force by the defendant, i.e., whether the defendant was

actually the aggressor in this case.

The Johns court analyzed that case according to Wigmore's

logical relevance theory of admissibility for prior crime evidence

involving the issue of mens rea. See 2 Wigmore, Evidence in Trials

at Common Law, 5 302 (rev.ed. 1979). Wigmore's theory is based on

the doctrine of chances; it does not ask the trier of fact to infer

the defendant's state of mind from the defendant's subjective

character; rather, it asks the trier to make an intermediate

inference of objective improbability under the doctrine of chances

and then an ultimate inference of intent based on the improbability

of the conduct. Johns, 725 P.2d at 323, citing Imwinklereid,

Uncharged Misconduct Evidence 8, 5 5.05; see also Roth,

Understandinq Admissibility of Prior Bad Acts: a Diaqrammatic

Approach, 9 Pepperdine L.Rev. 297 (1982). Imwinklereid explains

Wigmore's theory:

". . . The doctrine teaches us that the more often the

defendant performs the actus reus, the smaller is the

likelihood that the defendant acted with an innocent

state of mind. The recurrence or repetition of the act

increases the likelihood of a mens rea or mind at fault.

In isolation, it might be plausible that the defendant

acted accidentally or innocently; a single act could

easily be explained on that basis. However, in the

context of other misdeeds, the defendant's act takes on

an entirely different light. The fortuitous coincidence

becomes too abnormal, bizarre, implausible, unusual, or

objectively improbable to be believed. The coincidence

becomes telling evidence of mens rea.

Imwinklereid, supra, at 8, !i

j 5.05.

Some commentators have concluded that under such a theory the

proponent must have evidence of more than one prior similar

instance of conduct. Johns, 725 P.2d at 324; see e.s. Note,

Admissibility of Evidence of Prior Crimes in Murder Trials, 25

1nd.L.J. 64, 68 n 23 (1949-50); Comment, The Admissibility of

Evidence of Extraneous Offenses in Texas Criminal Cases, 14 S.Tex.

L.J. 69, 96 (1973). Others, including Imwinkleried, assert that

in terms of logical relevance even a single similar act would

increase the likelihood that a defendant acted intentionally.

"So long as the defendant has performed the act 'oftener than

once,' the act has some logical relevance on the issue of intent."

Imwinklereid, supra, at 12, 5 5.06. "[Tlhe mere prior occurrence

of an act similar in its gross features--i.e., the same doer, and

the same sort of act, but not necessarily the same mode of acting

nor the same sufferer--may suffice for that purpose.'' Roth, supra,

at note 43, quoting 2J Wigmore, supra, at 251, 5 304.

We agree with the Johns court that no categorical statement

can be made one way or the other, rather such decisions must be

made on a case by case basis. Johns, 725 P.2d at 324. "A simple

unremarkable single instance of prior conduct probably will not

qualify, but a complex act requiring several steps, particularly

premeditated, may well qualify." Johns, 725 P.2d at 324.

Thus, the linchpin for determining whether a single instance

of prior conduct is sufficient to prove intent is relevancy based

on similarity. Here, because the defendant admits that he

purposely and knowingly killed Rob Hare, the prior uncharged

misconduct actually is relevant towards the reasonableness of

Sadowski's claim of self defense, i.e., whether he acted with

criminal intent or in self defense. We conclude that the prior act

is sufficiently similar to be admissible on this issue. Both

instances involved the use of alcohol and firearms. Both instances

can be characterized as stressful; one involved marital discord and

attempted suicide, the other involved the defendant's subjective

belief of a possible robbery. Deputy Campbell testified that when

Sadowski pointed the gun at him in the prior incident, he said

something to the effect that "I no longer had control ... [h]e

meant that he had control now, not me." Phil Sadowski's own

testimony indicates that upon becoming concerned about Rob Hare's

alleged bizarre comments, he pulled the gun out before he asked

everyone to leave. In both instances, the defendant while

intoxicated pointed a firearm at an invitee in his home allegedly

to gain control of what he believed to be an out-of-control

situation in his own home. The prior act is admissible as

relevant towards Sadowski's intent and the justification for using

force to defend himself.

The District Court did not abuse its discretion.

As his second issue, Sadowski argues that the prosecutor

improperly commented upon and emphasized, as well as cross-

examined the defendant concerning, the defendant's post-arrest,

post-Miranda-warning silence in violation of Doyle v. Ohio (1976),

426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91. In Doyle, the United

States Supreme Court held that use of a defendant's silence

maintained after Miranda warnings was fundamentally unfair because

Miranda warnings inform a person of his right to remain silent and

assure him, at least implicitly, that his silence will not be used

against him. Anderson v. Charles (1980), 447 U.S. 404, 407-408,

100 S.Ct. 2180, 2182, 65 L.Ed.2d 222, 226; Doyle, 426 U.S. at 618-

619, 96 S.Ct. at 2245, 49 L.Ed.2d at 97-98. For purposes of

identification each violation alleged in this case will be

numbered.

1. The State on redirect questioned the arresting officer

Rash as follows:

Q. Deputy Rash, from the time that you arrived at the

building until the Defendant was taken away from the

building, how much time elapsed? Can you tell me?

A. I would say I arrived 4:07 a.m. and Lieutenant

Pronovost arrived at 4:29 a.m., possibly 20 minutes.

Q. Now during that time, other than saying "1 shot him,

did the defendant say anything else?

A. Not that I heard.

(Transcript at 179.)

2. The State later questioned Officer Adams who transported

defendant from the Furniture Doctor to the Law and Justice Center:

Q. Did anything occur from the Furniture Doctor building

when you transported him to the Law and Justice Center

here? Did anything occur in your car?

A. No.

Q. Did the Defendant say anything to you?

A. While in the vehicle?

Q. Yes.

A. Not that I recall, no, he did not.

(Transcript at 478.)

3. During cross-examination of Sadowski by the State the

following colloquy took place:

Q. Now, there at the building, at the shop when they

were there, you made the statement that, I1I shot him,"

right?

A. Yes.

Q. What were the other officers doing while you were

there? Did you see them?

A. There were a bunch of people. There were a bunch of

people doing all kinds of things.

Q. Did you ever say to anybody, "That man had a knife

in his hand and its over there, look for itgt?

A. No, I didn't.

Q. Why not?

A. It didnlt occur to me.

(Transcript at 673.)

4. Later in cross-examination, the State asked Sadowski the

following questions:

Q. Now, you rode from your shop in to the Law and

Justice Center, right?

A. Yes.

Q. So you rode with him from there to here, what did you

tell him?

A. We were just having some conversation.

Q. In fact the first time you mentioned anything about

a knife, or something was some silver thing, was in this

building when you were talking to Bryan Adams downstairs,

right?

A. I'm not sure of that.

Q. Well, did you ever tell anybody before that?

A. I don't think so.

Q. Why did it occur to you that you should tell him when

you were on the second floor down here?

A. I 'm not sure. I don't remember the circumstances.

Q. The truth is that you told Bryan Adams that because

you knew that you were in a whole lot of trouble and you

had better put a weapon in Rob Hare's hands; is that

right?

A. No, that's not right.

Q. Because you had training in self-defense and you knew

when deadly force could be used; isn't that right.

A. I didn't know from a legal standpoint when it could

be used. I know what common sense told me. ...

(Transcript 675-6.)

5. Sadowski argues that the State also commented on

Defendant's post-Miranda silence during the opening portion of the

State s final argument:

. . . You'll remember how officer Adams characterized

the defendant when he said he was looking down the

hall, and then he turned and looked at Officer Adams and

said, Itshoot to kill." That's the first time that

anybody heard about Rob Hare having any kind of a deadly

weapon ...

(Transcript at 864.)

6. Sadowski claims that this prejudice was compounded later

when the State argued in rebuttal:

The knife was fabricated. The shiny object was

fabricated in this building on the second floor down

here. . ..

...

He had every opportunity out there when the sheriff's

deputies arrived to talk about the weapon. What happened

here? "1 shot him1'. What would a reasonable person do?

"1 shot him because I had to because he had a shiny

object; he had a knife. He was attacking me. I shot

him." ...

(Transcript at 915-916.)

Because Doyle is based on principles of fundamental fairness

that a defendanttssilence after receipt of governmental assurances

will not be used against him, the prohibition of Doyle does not

apply to pre-arrest silence before the Miranda warning is issued.

State v. Furlong (1984), 213 Mont. 251, 258, 690 P.2d 986, 989;

State v. Wilson (M0nt.1981)~ 631 P.2d 1273, 1277; Jenkins v.

Anderson (1980), 447 U.S. 231, 238-240, 100 S.Ct. 2124, 2129-2130,

65 L.Ed.2d 86, 94-96. And although use against a criminal

defendant of silence maintained after receipt of governmental

assurances of one's right to silence is barred by Doyle, this

directive does not apply to language that inquires into prior

inconsistent statements. Such comment makes no unfair use of

silence, because a defendant who voluntarily speaks after

receiving Miranda warnings has not been induced to remain silent.

State v. Wiman (1989), 236 Mont. 180, 187, 769 P.2d 1200, 1204,

citing Anderson v. Charles, supra, 447 U.S. at 408, 100 S.Ct. at

2182, 65 L.Ed.2d at 226. Here then the issue of improper comment

on silence can be divided into two parts. Silence before the

arrest and Miranda warning and silence after arrest and Miranda

warning. Alleged violations No. 3, the first quotation of

Sadowskits cross-examination, and 6, rebuttal to final argument,

refer to pre-arrest silence.

The State argues that the Defendant made four inconsistent

statements regarding the shooting: one to the dispatcher on the

telephone, one to the police when they arrived on the scene, and

the two to the police at the law and justice center, indicating

that the victim had a weapon. However, in this case we need not

determine whether these statements were inconsistent. These

questions and comments that Sadowski alleges constitute fatal error

are thinly spread throughout some 900 pages of transcript.

Furthermore, we note that the defendant never posed an objection

to any of the prosecutorts questions or comments.

Generally, the failure to object in a timely manner

constitutes a waiver of alleged error. Section 46-20-104, MCA;

State v. Wilkins (1987), 229 Mont. 78, 80, 746 P.2d 588, 589.

However, when substantial rights of a defendant as here are

involved, the lack of timely objection does not preclude us from

exercising our power of review to examine any error at the trial

court level. Section 46-20-701 (2), MCA; State v. Harris (1984),

209 Mont. 511, 517, 682 P.2d 159, 162; Rule 103(d), M.R.Evid. Our

review of the record in this case indicates that defense counsel

actually asked the first question alluding to Sadowskits silence

on cross-examination of Officer Rash, in a manner implying

innocence:

Q. Phil Sadowski, the entire time you were there, never

denied he did the shooting, did he?

A. No, sir, not that I can recall.

(Transcript p. 172) This opened the door for the prosecutorts

questioning of Officer Rash on redirect, quoted earlier and

numbered as excerpt 1, that Sadowski alleges was the beginning of

the State's allegedly repeated Dovle violations.

In State v. White (1982), 200 Mont. 123, 127-128, 650 P.2d

765, 767-768, we held that the defendant's post-Miranda, pretrial

silence is a proper subject of cross-examination where defendant

raises the issue of his earlier silence and proceeds to

characterize that silence as proof of innocence rather than as an

exercise of his Miranda rights. In White the defendant raised the

issue in his direct testimony, here it was first raised on cross-

examination of a State's witness, and then rebutted by the State

on redirect. Then later, the defense first focused on Sadowski's

post-Miranda silence on cross-examination of Sheriff Cutting:

Q. So Phil Sadowski never, at any spot from the time you

took him from the scene until the time you took him down

here to the station, all during the time of the

statement, never told you that he saw a knife in Rob

Hare's hand, did he?

A. No. That was asked, the question was asked by

Lieutenant Christie.

(Transcript p. 513.) In White we held that there was no violation

of Doyle where this issue was first raised by defendant as evidence

of guilt on direct examination. The same would apply to cross-

examination and later argument. These alleged violations No. 3,

4, 5 and 6, are subsequent in time to the above cross-examination

of Sheriff Cutting. Alleged violation No. 2 is not clear as to

purpose and appears to be an inquiry as to what happened and not

argumentative for the purpose of showing inconsistencies. To

arrive at a conclusion that Rash's redirect (1) and Adam's direct

(2) are violations of Doyle, is accomplished by conjecture when

viewed in context. We find there is no plain error or Doyle

violation when viewed in context, where the defendant first focuses

on the issue of his earlier silence in cross-examination of the

State's witnesses, fails to object to the State's reference to the

same silence for alleged improper purposes, and then for the first

time on appeal alleges that admission of such evidence constitutes

plain reversible error.

111.

ina ally, Sadowski contends that it was reversible error for

the investigating police officers not to take into evidence items

from the crime scene that may have been weapons used by the victim

that would support the defendant's affirmative defense of

justifiable use of force. The officers at the scene were not

immediately informed of the use of any type of weapon by the

deceased. Testimony of officers at the scene indicates that the

police did look for a possible weapon, but could find nothing in

close proximity to the body of the victim except a set of keys on

a table two or three feet away from and above the body, and an

apparently undisturbed chisel covered with dust approximately

fifteen feet from the body. Sadowski argues that the prejudice he

suffered due to the officers1 failure to obtain fingerprint

evidence of these and other potential weapons was compounded by the

prosecutor's comments on final argument of "where is the weapon?"

First, we note that the defense had a full opportunity to

cross-examine the officers concerning the reasons why they chose

not to fingerprint such items, as well as introduce objects that

it contended should have been fingerprinted. Moreover, it is well

settled that while a criminal defendant has a constitutional right

to obtain exculpatory evidence and that the denial of such right

is a violation of due process, this right is only a personal right

to obtain exculpatory evidence. It does not require that police

officers take initiative or even assist in procuring evidence on

behalf of a defendant. State v. Swanson (1986), 222 Mont. 357,

360-362, 722 P.2d 1155, 1157-1158; In re Martin (Cal.1962), 374

P.2d 801, 803.

Sadowski characterizes the failure of the police to gather

evidence of a weapon on his behalf as a suppression of evidence.

-

See Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215. However, only a deliberate or intentional

suppression of exculpatory evidence is a per se violation of due

process. To amount to a violation of due process, negligently

suppressed evidence must be material and of substantial use, vital

to the defense, and exculpatory. State, City of Bozeman v. Heth

(1988), 230 Mont. 268, 272, 750 P.2d 103, 105. Furthermore, in

Heth

I this Court drew a distinction between "gatheringv1 and

vvpreservingll

evidence:

Swanson . . .

does stand for the proposition that

police officers have to assist in the gathering of such

[exculpatory] evidence.

. . .

.. . Police officers do not have an affirmative duty

to search out favorable evidence for the defendant. . .

Heth, 750 P.2d at 105. We reaffirmed this rule in State v. Clark

(1988), 234 Mont. 222, 225, 762 P.2d 853, 855-856, holding that

there is no affirmative duty on police officers to obtain

exculpatory evidence, but they must avoid interference with the

efforts on the part of the accused to obtain such evidence.

Accordingly, we find no error on this issue, as well as the other

issues presented in Sadowski's appeal. The judgment is

AFFIRMED.

Justices

Justice William E. Hunt, Sr., dissenting:

I dissent. This Court persists in playing fast and loose with

the rules of evidence, and in so doing, strips the criminally

accused of the few but essential protections afforded them by the

law and by the rules. The American criminal justice system is

premised on the notion that all defendants are innocent until

proven guilty of the crime charged. To that end, the federal and

state rules of evidence disallow testimony about the defendant's

character or about other behavior unrelated to the crime. Recent

decisions by this Court, allowing the state to use evidence of

prior "badM acts, have systematically dismantled this bulwark of

justice, which has been erected to prevent government abuse and

selective punishment of the unpopular. The decision today that

Sadowskits prior act is admissible under Rule 404(b) moves the

Court finally to the absurd result it has been gravitating toward

since its decision in State v. Just, 184 Mont. 262, 602 P.2d 957

(1979). Further, this decision not only tampers with the accusedls

rights through the rules of evidence--it also weakens protections

against self-incrimination by permittingthe state to highlight the

defendant's post-Miranda silence. All in all, the decision is a

disaster for the people of the state of Montana.

Our criminal justice system is carefully designed to try the

accused for the crime for which he or she has been charged, and no

other. The rules of evidence reflect this policy by prohibiting

evidence of other acts or crimes by the defendant unless those acts

are clearly relevant to the crime charged, and are more essential

to the prosecution's case than they are prejudicial to the

defendant. We go further and say that if prior conduct is indeed

relevant, it must then meet the procedural requirements set out in

Just. The Court today has blurred the distinction between the

specific relevancy requirement of 404(b) and the more mechanical

admissibility test set out in Just. By blurring the technical

lines, we impair our ability to see the "big picturefv which Rule

of

404(b) is a crucial part.

Almost three years before Philip Sadowski claimed he took

another man's life in self-defense, he was distraught over a

pending marital separation. In his distress, he contemplated

suicide. Perhaps because he did not have other means at his

disposal, Sadowski chose a gun with which to threaten the suicide.

He phoned the local authorities to tell them about his trauma.

The police arrived, and Sadowski talked to one officer for almost

three hours. According to the officer's testimony, when Sadowski's

wife came home, he pointed the gun at the sheriff for about one

second. One thousand one. That's all. Then, out of earshot of

the sheriff, he pointed it at his own head once, then gave it to

his wife, who gave it to the sheriff. Sadowski was taken into

custody for his own protection and was never charged with a crime.

Now this Court would have us believe that Sadowski's traumatic

evening in 1986 is relevant to whether or not he used his weapon

in self-defense in an after hours party with strangers in 1989.

Incredible.

Rule 404(b) permits only evidence of acts probative of the

fact in issue, not evidence that displays a person's propensity to

act in a certain way. Character evidence is specifically excluded

because of the strong likelihood that the jury will convict on the

overall tendencies of the person rather than on evidence of the

crime charged. What does Sadowskits behavior when faced with a

divorce tell us about his behavior when faced with an attack?

Nothing. Nothing but that in both instances he is capable of

picking up a gun. It tells us nothing about whether when Phil

Sadowski shot Rob Hare the use of force was justifiable.

The majority cites State v. Johns (Or. 1986), 725 P.2d 312,

324, regarding relevancy: "A simple, unremarkable single instance

of prior conduct probably will not qualify, but a complex act

requiring several steps, particularly premeditated, may well

q~alify.~' Where in this case is the similarity of complex acts

requiring several premeditated steps? The majority states that

relevancy based on similarity determines whether an act is

sufficient to prove criminal intent as opposed to self defense.

But the two incidents in question are so completely different in

mental condition of the defendant, surrounding circumstances, act

committed, victims, etc., that no reasonable person could say one

is instructive of the other.

Next, even if we were to somehow conclude that the August 4,

1986, incident was relevant to a self-defense claim, the act would

have to meet the Just requirements for admissibility. Briefly,

Just states that the prior act must be similar, near in time, tend

to establish a common scheme or plan, and be more probative than

prejudicial. An act need not satisfy all four elements, but must

substantially fulfill the requirements. And Just carries the

caveat:

We are concerned, nevertheless, with the possibility that

the exceptions we have discussed thus far may wswallow

upv1 the genera1 rule ... As we have stated: 'The

general rule should be strictly enforced in all cases

where applicable, because of the prejudicial effect and

injustice of such evidence, and should not be departed

from except under conditions which clearly justify such

a departure. The exceptions should be carefully limited,

and their number and scope not increased.' 'I Just, 184

Mont. at 271, 602 P.2d at 962. (citations omitted.)

The Court today has not only swallowed up the general rule, it has

made a feast of that most fundamental principle of our justice

system--the presumption of innocence.

The first Just element is similarity of acts. This dissent

has discussed the glaring dissimilarities of the two acts in

question here. Just, a sexual intercourse without consent case,

permitted evidence of other sexual acts of the same kind with the

same victim, several times within a three year span. Johns, on

which the majority relies, involved two assaults--both during

periods of marital discord when the defendant had failed to become

a police officer and was financially dependent on his spouse, and

both after the defendant had threatened to kill the spouse. It is

this consistency of detail that the first Just element

contemplates, and that the facts before us sorely lack. Most

of the other Just factors are also missing. The 1986 suicide

attempt obviously does not establish a common scheme, plan, or

motive. And, as explained above, the act is not probative of any

fact in issue at all--let alone more probative than prejudicial.

Nearness in time is the only Just factor in evidence. Without any

other support, the act absolutely should not have been admitted.

The general rule has been swallowed whole.

The majority's reliance on Johns is particularly interesting

in light of the fact that Johns sets out six criteria with which

to evaluate prior crimes on the issue of intent, and only one of

those criteria is satisfied here: the present crime charged

requires proof of intent. The other factors, including intent of

prior act, similarity of victims, similarity of acts and of

physical elements, simply are not in evidence. The majority uses

the evidentiary discussion from Johns but does not arrive at the

Oregon Court's inevitable conclusion: that if the acts are

sufficiently dissimilar, the earlier one is not probative of the

later one.

This result is not surprising when one considers the erosion

of the rule as evidenced by this Court's decisions. We have slowly

gotten to the point where today we can say that pointing a gun

briefly at an officer during a suicidal episode almost three years

ago is probative of whether the defendant shot a potential

assailant in self-defense. Why don't we just come out and say that

anything that anybody has ever done wrong is admissible in criminal

prosecutions? The decision today nets the same result.

Further, the decision to permit evidence of the defendant's

post-Miranda silence is questionable at best. ~mplyingthat post-

Miranda silence is evidence of fabrication, regardless of when it

was raised or whether or not an objection was made, is tantamount

to negating the whole purpose of the Miranda warning and the Sixth

Amendment protections of the united States Constitution. The

arrestee is supposed to be perfectly free to remain silent after

arrest without fear of implication. That is what the law intends

and should be what this Court upholds. I would reverse the

District Court.

I concur in the foregoing dissent.

,,";C;

LL'. ,

Justice ;