                                                                                              June 23 2015


                                           DA 13-0585
                                                                                            Case Number: DA 13-0585

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2015 MT 169N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

MARK JOSEPH CHUTE,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC 12-331
                        Honorable Edward P. McLean, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender, Nicholas Domitrovich, Koan
                        Mercer, Assistant Appellate Defenders, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant
                        Attorney General, Helena, Montana

                        Kristen H. Pabst, Missoula County Attorney, Jennifer Clark, Deputy County
                        Attorney, Missoula, Montana




                                                     Submitted on Briefs: April 29, 2015
                                                                Decided: June 23, 2015

Filed:

                        __________________________________________
                                          Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Defendant Mark Joseph Chute appeals from his conviction in the Fourth Judicial

District Court, Missoula County, on one count of partner or family member assault (PFMA),

in violation of § 45-5-206, MCA. The dispositive issue on appeal is whether the District

Court erred by denying Chute an opportunity during trial to inquire into his spouse’s pending

driving under the influence (DUI) charge on cross-examination. We affirm.

¶3     On April 9, 2013, a jury found Chute guilty of misdemeanor PFMA stemming from a

physical altercation between Chute and his then wife Rose Chute in July 2012. The jury

acquitted Chute of three other related counts. The District Court sentenced Chute to a six

month deferred imposition of sentence, with additional terms and conditions.

¶4     Prior to trial, the State filed a motion in limine to prohibit the introduction of evidence

relating to Rose’s alleged alcohol use, including any reference to Rose’s pending DUI

charge, which arose several months after the alleged altercation.1 Chute argued that Rose’s

pending DUI charge would be probative of her credibility and demonstrate that Rose had an

incentive to fabricate her version of the altercation in order to receive favorable treatment

from the State on her unrelated DUI charge. The District Court granted the State’s motion in




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part; however it allowed Chute to inquire into Rose’s purported alcoholism and intoxication

during the alleged altercation.

¶5     Chute asserts that the District Court violated his constitutional right to confront an

adverse witness, by denying him “wide latitude” in his cross-examination of Rose. We

reiterate that the “Confrontation Clause guarantees only an opportunity for effective

cross-examination, not cross-examination that is effective in whatever way, and to whatever

extent, the defense might wish.” State v. Wagner, 2013 MT 47, ¶ 37, 369 Mont. 139, 296

P.3d 1142 (internal citation and quotation marks omitted) (emphasis in original). As such,

trial judges “retain wide latitude insofar as the Confrontation Clause is concerned to impose

reasonable limits on [] cross-examination . . . .” Wagner, ¶ 37 (quoting State v. Wilson, 2007

MT 327, ¶ 45, 340 Mont. 191, 172 P.3d 1264).

¶6     As the record establishes, Chute was presented with an opportunity to effectively

cross-examine Rose during the trial. Chute was permitted to challenge Rose’s credibility and

highlight her potential biases, by addressing during cross-examination inconsistent

statements she made during the investigation, her alcohol use, the couple’s subsequent

divorce proceedings, and her recent inheritance. Under these circumstances, we review for

an abuse of discretion. See Wagner, ¶ 38 (defendant given an opportunity to cross-examine

the witness and “did in fact cross-examine the witness during the trial. Therefore, the issue is

not constitutional in nature but evidentiary”); see also State v. Skinner, 2007 MT 175, ¶ 31,



1
  Although the record does not specify the date, it is undisputed that Rose was charged with DUI
several months after the July 2012 altercation and approximately two or three months prior to the
April 3, 2013 pre-trial hearing.


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338 Mont. 197, 163 P.3d 399 (“issue is not constitutional in nature but evidentiary, which we

review for an abuse of discretion”).

¶7     We conclude that the District Court did not abuse its discretion in utilizing its wide

latitude in limiting Chute’s cross-examination of Rose regarding an irrelevant DUI charge

that occurred several months after the alleged altercation. We further note that Chute fails to

provide any indication that Rose received leniency from the State.

                                       CONCLUSION

¶8     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. The issue in this case

is one of judicial discretion and there clearly was not an abuse of discretion. For the reasons

set forth, we affirm.

                                                   /S/ PATRICIA COTTER

We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE




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