                                                                                           July 21 2009


                                         DA 08-0036

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2009 MT 243



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

MARK BONAMARTE,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Eighteenth Judicial District,
                      In and For the County of Gallatin, Cause No. DC 04-189
                      Honorable Holly Brown, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      William F. Hooks, Attorney at Law; Helena, Montana

               For Appellee:

                      Hon. Steve Bullock, Montana Attorney General; John Paulson,
                      Assistant Attorney General; Helena, Montana

                      Susan L. Wordal, City Prosecutor; Bozeman, Montana



                                                  Submitted on Briefs: November 19, 2008

                                                             Decided: July 21, 2009


Filed:

                      __________________________________________
                                        Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Mark Bonamarte appeals his conviction of Partner or Family Member Assault

under § 45-5-206, MCA. We affirm.

¶2     We consider the following issues:

¶3     1. Did the District Court err by concluding the Municipal Court properly excluded

evidence offered by Bonamarte to prove the victim’s motive and to impeach the victim?

¶4     2. Did the District Court err by concluding the Municipal Court did not abuse its

discretion by admitting expert testimony regarding “battered woman” syndrome?

                           PROCEDURAL BACKGROUND

¶5     On April 30, 2004, a jury seated in the Bozeman Municipal Court convicted

Bonamarte of misdemeanor Partner or Family Member Assault. The Municipal Court,

Hon. Patricia Carlson presiding, sentenced Bonamarte to one year in jail with all but

thirty days suspended, and ordered him to pay fines and restitution. The Municipal Court

instructed the State to arrange a hearing to determine the amount of restitution within

sixty days. Prior to the expiration of sixty days, Bonamarte appealed to the District

Court, challenging the Municipal Court’s evidentiary rulings and its order requiring

payment of restitution. The District Court affirmed the rulings and remanded the case to

the Municipal Court for entry of a final order regarding the amount of restitution.

Bonamarte appealed to this Court, and we dismissed the case without prejudice,

concluding the appeal was premature. State v. Bonamarte, 2006 MT 291, 334 Mont. 376,

147 P.3d 220.

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¶6     On March 1, 2007, the Municipal Court issued its final order on the amount of

restitution. Bonamarte again appealed his conviction to the Eighteenth Judicial District

Court. Both parties resubmitted their prior briefs to the District Court, which again

affirmed the Municipal Court’s evidentiary rulings. Bonamarte appeals the District

Court’s final order affirming his conviction.

                              FACTUAL BACKGROUND

¶7     On January 15, 2003, Bozeman police officers responded to a report of domestic

violence. At the scene, Lynette Felix told the officers that Bonamarte had struck her

several times, and though he had left the apartment, she feared for her and her children’s

safety. Bonamarte was subsequently arrested and charged with misdemeanor Partner or

Family Member Assault in violation of § 45-5-206, MCA.

¶8     Felix and Bonamarte had been romantically involved for three years prior to this

incident. Each of them also shared in the operation of a car-wash business, which Felix

ultimately purchased from Bonamarte. Felix testified that their relationship had been

characterized by violence and threats by Bonamarte and by his efforts to control her and

her family. She testified that he had beat her about 100 times over a period of a year and

a half, that she had been reluctant to tell anyone, and during that time she had undertaken

efforts to cover up her injuries with make-up and clothing.

¶9     Prior to trial, the State orally moved the Municipal Court to prohibit Michael

Richards, of Mountain West Bank, from testifying at trial. Through Richards’ testimony,

Bonamarte intended to introduce a loan application Felix submitted to the bank. On the

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application, Felix falsely represented to the bank that she anticipated receiving a large

amount of money through an inheritance. Bonamarte sought to use this evidence to

demonstrate that Felix was not credible. The Municipal Court granted the State’s motion,

expressing concern that this evidence was potentially misleading and could confuse the

issues to be put before the jury, noting that this case was not about bank fraud but assault.

However, the court permitted Bonamarte to cross-examine Felix regarding the falsity of

the bank application. The court added that if Felix were to perjure herself about the

application, it would re-consider the use of extrinsic documentary evidence.

¶10    When asked, Felix admitted she provided false information to the bank on her

application. She explained that she had done so because she was required to do so by

Bonamarte. Bonamarte further examined her regarding their business ventures.

Bonamarte then attempted to introduce several documents, other than the loan

application, which he contended contradicted Felix’s testimony about the poor financial

health of their business. The court denied admission of these documents, citing possible

confusion of the jury. Bonamarte testified to the effect that the business was in sound

financial condition and about other issues he believed established a motive for Felix to

lie. His theory was that Felix was motivated to falsely claim she had been assaulted in

order to remove Bonamarte from the business by a restraining order, allowing her to take

additional sums from the business to service her significant debt.

¶11    Immediately prior to the State’s calling of Kathy Coles to testify as an expert

witness, Bonamarte moved the court to exclude her testimony as irrelevant and

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prejudicial. The court responded that Bonamarte could have raised this objection much

earlier. The court declined to preemptively exclude Coles’ testimony, stating it would

consider any objections Bonamarte might make to her testimony after she was qualified

as an expert. When Coles began to testify about police recognition of victim and abuser

profiles observed in domestic disturbances, Bonamarte objected on relevance grounds

and improper vouching of Felix. The Court sustained Bonamarte’s objection and

cautioned the prosecutor to elicit only testimony that would help the jury understand the

evidence presented at trial. Bonamarte again objected when the prosecutor questioned

Coles about the role of power and control in domestic violence, arguing that “syndrome

testimony” was inadmissible. The court overruled this objection.

¶12    On appeal, the District Court concluded that the Municipal Court did not abuse its

discretion by its evidentiary rulings.

                                STANDARD OF REVIEW

¶13    A district court’s review of a municipal court’s orders and judgment is limited to

review of the record and questions of law. State v. Ditton, 2006 MT 235, ¶ 18, 333 Mont.

483, 144 P.3d 783. This Court reviews a district court’s conclusions of law to determine

whether they are correct. Ditton, ¶ 18. We review evidentiary rulings for abuse of

discretion. Ditton, ¶ 18; State v. Nelson, 2002 MT 122, ¶ 9, 310 Mont. 71, 48 P.3d 739.

A court abuses its discretion if it acts arbitrarily or unreasonably, and a substantial

injustice results. State v. Sanchez, 2008 MT 27, ¶ 15, 341 Mont. 240, 177 P.3d 444.




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                                      DISCUSSION

¶14 1. Did the District Court err by concluding the Municipal Court properly
excluded evidence offered by Bonamarte to prove the victim’s motive and to
impeach the victim?

¶15    Bonamarte argues the Municipal Court’s decision to exclude Richards’ proffered

testimony about Felix’s untruthful loan application and its refusal to admit certain

financial documents, denied him his Sixth Amendment right to confront the witnesses

against him and prevented him from mounting a successful defense. The State responds

that Bonamarte did not raise a constitutional argument in the Municipal Court, and that

the court properly exercised its discretion under Montana Rules of Evidence 403 and 608.

¶16    As the District Court noted, we held in Nelson, “the trial court’s discretion in

exercising control and excluding evidence of a witness’s bias or motive to testify falsely

becomes operative only after the constitutionally required threshold level of inquiry has

been afforded the Defendant.” Nelson, ¶ 13 (citation omitted). Nonetheless, “a trial court

has broad discretion to limit the scope of cross-examination to those issues it determines

are relevant to the trial” and “limiting the scope of cross-examination does not

necessarily violate a defendant’s right to confront an adverse witness.” Nelson, ¶ 15

(citations omitted). While the trial court’s rulings regarding admission of evidence and

cross-examination were necessarily related to Bonamarte’s right of confrontation, he

made no separate constitutional argument in the Municipal Court, challenging only the

court’s application of the rules of evidence. Therefore, our review is confined to whether

the court’s rulings were erroneous under those rules.

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¶17    Rule 608(b), M. R. Evid. prohibits the use of extrinsic evidence to prove specific

instances of conduct for the purpose of attacking a witness’s credibility. Rule 608(a)

permits opinion testimony concerning a witness’s credibility under certain conditions, but

Bonamarte did not offer such opinion evidence here. Rule 608(b) permits the use of

extrinsic evidence regarding specific instances of conduct probative of the witness’s

character for truthfulness or untruthfulness during cross-examination, subject to the

proper exercise of discretion by the trial court. See State v. Gommenginger, 242 Mont.

265, 271-75, 790 P.2d 455, 459-61 (1990). Under Rule 403, a court may exclude

relevant evidence if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, misleading the jury, or considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.

¶18    Bonamarte’s arguments are similar to those made by the defendant in State v.

McClean, 179 Mont. 178, 587 P.2d 20 (1978). McClean argued the trial court had erred

by not permitting him to present witnesses who were able to testify that the State’s

primary witness, an undercover officer, was also a drug user and dealer and thus had a

financial motive to testify falsely to continue his employment and access to drugs.

McClean, 179 Mont. at 183, 587 P.2d at 23. Applying Rule 608(b) to those facts, we

offered that “reference to specific instances of a witness’ conduct for the purpose of

proving his character for truthfulness or untruthfulness is never permitted on direct

examination.” McClean, 179 Mont. at 185, 587 P.2d at 25.




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¶19    In Nelson, the defendant sought to introduce evidence of a plea agreement a

witness had made in a prior case to prove the witness tended to testify against his co-

defendants. Nelson, ¶ 12. The trial court permitted Nelson to cross-examine the witness

about the plea negotiations related to the immediate case, but did not allow evidence of

plea agreements made in other cases. Nelson, ¶¶ 12, 18. We stated that, while a

defendant holds the right to present evidence of a witness’s bias, the scope of the

evidence is subject to limitation by the trial court. Nelson, ¶ 15. We held that the trial

court exercised appropriate discretion in imposing this evidentiary limitation, because it

afforded the defendant an opportunity to interrogate the witness regarding the plea

agreement made in connection with his testimony against Nelson. Nelson, ¶¶ 18-19.

¶20    Here, the trial court allowed Bonamarte to ask Felix about the false representations

she made in her loan application. Felix admitted to lying on the loan documents.

Bonamarte was permitted to examine Felix about a motive she may have had to lie.

However, permitting Bonamarte to call Richards to testify on direct examination

regarding this specific instance of Felix’s conduct for the purpose of proving Felix’s

character for untruthfulness would have been contrary to Rule 608. See McClean, 179

Mont. at 185, 587 P.2d at 24-25. Additionally, following Felix’s testimony that she had

lied on the loan application, introduction of the documents themselves would have been

cumulative.

¶21    We likewise conclude that the District Court did not err by concluding that the

Municipal Court did not abuse its discretion by limiting evidence relating to the general

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health of the parties’ business. Bonamarte was able to cross-examine Felix regarding the

car-wash business, and was also permitted to present evidence on this point through his

own testimony. The court acted within its discretion to exclude evidence which might

create undue prejudice, confuse the issues, mislead the jury, or which was cumulative

under Rule 403.

¶22 2. Did the District Court err by concluding the Municipal Court did not
abuse its discretion by admitting expert testimony regarding “battered woman”
syndrome?

¶23    The District Court determined that the Municipal Court properly followed our

holding in State v. Stringer, 271 Mont. 367, 897 P.2d 1063 (1995), by restricting Coles’

expert testimony to the general nature and behavior of battered women, and by not

permitting her to testify as to Felix’s credibility. Bonamarte argues that our holding in

Stringer involved “a limited situation in which an expert may be necessary to help a jury

understand why an allegedly battered woman would recant a statement that the accused

beat her. No such fact situation is presented in this case.” Because there was no

recantation in this case, Bonamarte argues that Coles’ testimony served only to bolster

Felix’s credibility. The State answers that Coles’ testimony was necessary to help the

jurors understand the general nature and behavior of battered women. Without her

testimony, the State argues, the jury may have been unable to assess the evidence

correctly.

¶24    Stringer did involve a recantation, and we explained that the expert testimony

could help the jury to understand the inconsistencies in the victim’s testimony. Stringer,

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271 Mont. at 377, 897 P.2d at 1069. We also noted that the testimony “provided the jury

with information to aid the jury in evaluating the evidence. This type of limited

testimony does not invade the jury’s role in determining the credibility of witnesses.”

Stringer, 271 Mont. at 377, 897 P.2d at 1069.

¶25    Felix testified that Bonamarte had beaten her about 100 times over a period of a

year and a half. She testified that he had threatened to harm members of her family,

including having her children raped, tortured and murdered, if she told anyone what had

happened. She testified about Bonamarte’s control over her, including that she had lied

on the loan application because Bonamarte had required her to do so. In response,

Bonamarte attempted to cast doubt upon Felix’s testimony by asking why, during all of

this alleged abuse, Felix had previously failed to seek help. During closing argument,

Bonamarte’s counsel questioned why Felix would not at least tell a best friend that

“Mark’s beating me up.”

¶26    Coles testified generally about the dynamics of an abusive relationship, including

the common characteristics of women who have been abused over an extended period of

time by a dominant male figure, and why an abused person might not immediately come

forward for help. Coles did not testify about Felix directly or opine about whether Felix

was a battered spouse. Coles’ testimony provided general information about the unique

behavior of battered spouses that may not be known commonly by a lay juror. While

Coles’ testimony was explanatory of victim behavior and thus indirectly supportive of

Felix’s position in the matter, Coles did not testify about Felix’s personal situation or

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about her believability. Whether Felix was credible and whether she was actually a

victim of abuse was left to the jury’s determination. We conclude that the District Court

did not err by concluding the Municipal Court did not abuse its discretion by the

evidentiary rulings entered on this testimony.

¶27    Affirmed.

                                                 /S/ JIM RICE


We concur:

/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS




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