                                   No. 12582

       I N THE SUPREME C U T O THE STATE O M N A A
                        OR    F           F OTN

                                      1974



STATE O MONTANA,
       F

                           P l a i n t i f f and Respondent,

       -vs   -
D N L FLAMM,
 O AD

                           Defendant and A p p e l l a n t .



Appeal from:     D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
                 Honorable Charles Luedke, Judge p r e s i d i n g .

Counsel of Record:

     For Appellant:

             Robert L. Stephens, Jr. argued, B i l l i n g s , Montana

     For Respondent :

             Hon. Robert L. Woodahl, Attorney General, Helena,
              Montana
             Thomas J. Beers, A s s i s t a n t Attorney General, argued,
              Helena, Montana
             Harold F. Hanser, County Attorney, B i l l i n g s , Montana
             Charles A. Bradley, Deputy County Attorney, argued,
              B i l l i n g s , Montana



                                                  Submitted:         June 17, 1974
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.

           Defendant was convicted of manslaughter by jury verdict
in the district court of Yellowstone County.    He now appeals
from the judgment of conviction.
           Defendant Donald J. Flamm, Jr. shot Roger Clement, a
security guard for the Char-El Mobile Homes sales lot in Billings,
Montana.     The shooting occurred about 4:00 a.m. on Christmas
morning, 1972, on South Billings Boulevard less than a quarter
mile south of the Char-El sales lot.     The victim died 18 days
later from the gunshot wounds.
           Defendant was charged with first degree murder.   The State
contended throughout the trial that defendant committed an inten-
tional and premeditated killing with malice.    Defendant admitted
the shooting but claimed self-defense.
           The principal conflicts in the evidence are mirrored in
the testimony of Fred B. Vickery for the State, and A1 Yocky and
defendant for the defense.
           Vickery was a security guard for the nearby Premier Mobile
Homes sales lot.     He testified that when he arrived at the scene
of the shooting, three men were struggling in front of the head-
lights of Clement's station wagon parked some ten feet behind
the defendant's Volkswagen.     The three men suddenly "sort of ex-
ploded apart" with Clement taking two or three steps backward with
his empty hands upraised.     Defendant shot Clements with a pistol
at close range, spinning him around to his right.     Defendant then
shot Clements twice more in the back.    Clements fell to the ground.
           Thereupon, defendant pointed the pistol in the direction
of Vickery, who was sitting behind the wheel of his parked pick-
up.   Defendant shot at Vickery twice.    Defendant and A1 Yocky,
his companion, then jumped into defendant's Volkswagen and proceeded
south on South Billings Boulevard.
        Vickery pursued them in his pickup.        He pulled alongside
the Volkswagen twice and bumped it from the side without result.
The third time Vickery knocked the Volkswagen off the road and
disabled it.   Defendant and Yocky fled on foot across a field
to the west.
        Defendant and Yocky had a different version of the shoot-
ing.   Their testimony indicated that Clement, unknown and uniden-
tified, stopped them and asked defendant for his driver's license.
Defendant got out of his Volkswagen and was searching through his
wallet for his driver's license.     Clement then hit defendant, knock-
ing off his glasses.   At the same time Clement pulled a gun on
defendant.   Defendant tried to knock the gun from Clement's hand,
at the same time reaching into the Volkswagen and pulling out his
own pistol by the barrel.     A struggle ensued.    Defendant's pistol
discharged accidentally.    Defendant thought he was dead and "just
started Shooting".
        Thereafter Vickery drove his pickup right at defendant
attempting to run over him.     Defendant stepped aside and fired
at Vickeryls windshield.
        In the resulting commotion, defendant and Yocky got into
defendant's Volkswagen and proceeded south on South Billings
Boulevard.   They were rammed several times by the pursuing
Vickery pickup.   They stopped and fled across a field on foot.
        On appeal, defendant seeks a new trial.       He contends
that three procedural errors affected his substantial rights and
deprived him of a fair trial:     (1) the admission of a police
officer's testimony that he gave defendant the "Miranda warning"
and defendant exercised his rights thereunder; (2) improper re-
buttal testimony by the State's principal witness; and, (3) improper
final argument by the special prosecutor.
        During the State's case-in-chief, the following testimony
was elicited from Officer Kenneth Nordlund of the Billings
Police Department on direct examination by the State:
        "Q.  After you went through this procedure
        [giving the Miranda warning to defendant]
        what did the Defendant say to you? A. He
        stated that he did not want to talk to me at
        this time, that he wanted to talk to a lawyer
        before any questions was asked." [Bracketed
        phrase added.1
        Defendant objected that it was improper to bring before
the jury testimony indicating that he did not want to talk to
the police because inferentially it indicated that he had some-
thing to hide.   The district judge overruled the objection and
admitted the testimony.   The basis was that the testimony "has
a bearing on the question of voluntariness with respect to the
waiver in those instances where he did waive."
        In the context of the instant case, we hold the admis-
sion of this testimony to be error.   The testimony relates to a
conversation between a police officer and the defendant that
occurred around 8:00 p.m. on Christmas day.   The trial record
is barren of any waiver by defendant of his Fifth Amendment
rights thereafter.   It is equally barren of any subsequent state-
ment, admission, or confession by the defendant.   Under such
circumstances, the relevance of the testimony to any issue in the
case is lacking.
        Footnote 37 of the majority opinion in Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L ed 2d 694, 720, 10 ALR3d 974,
explains the prohibition in this language:
        "In accord with our decision today, it is
        impermissible to penalize an individual for
        exercising his Fifth Amendment privilege when
        he is under police custodial interrogation.
        The prosecution may not, therefore, use at trial
        the fact that he stood mute or claimed his
        privilege in the face of accusation." (Citations
        omitted. )
While this prohibition is applicable here, the U.S. Supreme
Court has also held that a constitutional error can be re-
garded as harmless if the State proves "beyond a reasonable
doubt that the error complained of did not contribute to the
verdict obtained."        Chapman v. California, 386 U.S. 18, 87 S.Ct.


           Here there was a mere, passing reference by the State's
witness to the defendant's exercise of his constitutional rights.
The State made no attempt to emphasjze, further pursue, or even
refer to this testimony in its argument to the jury.            Furthermore
the defendant testified fully at the trial, thereby overcoming
    significance which the jury might have attached to his fail-
ure to respond during the custodial interrogation. Finally, the
record contains overwhelming evidence in support of the jury's
verdict.     Under these circumstances, the error was harmless and
therefore cannot          grounds for reversal.   United States
Faulkenbery, 472 F.2d 879 (9th Cir. 1973); Shepp v. State, 87
                                                      '.
                                                      /;   "/
Nev. 179, 484 P.2d 563; State v. Geter, 108 R.I. 933, 276 A.2d
274; People v. Key, (Colo.) 522 P.2d 719.
           Defendant also contends that the testimony of Vickery,
called in rebuttal, was improper, in that he merely repeated
testimony which he gave during the State's case-in-chief.           It is
alleged that this placed undue emphasis on the testimony of the
State's principal witness.
           We disagree.    Section 95-1910(c), R.C.M. 1947 governs the
order of proof in a criminal trial.        It provides:
           "The parties may then [after the case for
           the defense] respectively offer rebutting
           testimony only, unless the court, for good
           cause, permits them to offer evidence upon their
           original case." (Bracketed phrase added.)
           Here the district court permitted Vickery to testify
only after determining, in chambers, that the testimony would
not be a repeat of that given earlier.        The direct testimony
given in rebuttal covers only a page of the transcript, thus
negating any possibility of undue emphasis of Vickeryls earlier
testimony.    The district court clearly did not abuse its discre-
tion in permitting such testimony.    State v. Crockett, 148 Mont.
402, 421 P.2d 722; 6 Wigmore, Evidence S1873 (3rd ed. 1940).
          Defendant's final claim of error concerns remarks made
to the jury during the state's final argument.    Defendant claims
that these remarks appeal to social and class prejudice       and
offer conclusions not founded in the evidence.
          The remarks concern references to defendant's association
with the "dregs of society" and the drug culture.    Our review of
the record indicates that while these remarks were harsh and
probably offensive to the defendant, they were supported by the
evidence and reasonable inferences therefrom.
          The record discloses that at the time of the shooting,
defendant was in the company of A1 Yocky--a man who had just
been released pending deferred imposition of sentence for posses-
sion and sale of dangerous drugs.    At the time of the trial, de-
fendant's brother was in custody in the same courthouse on a drug
charge.    Defendant was enroute to this brother's home at the time
the shooting occurred.    Defendant testified that he had been
threatened by members of the "dope scene1'because of a debt owed
them by his brother.
          Given this evidence, the state's comments were surely
founded on reasonable inferences from the testimony, if not from
the testimony itself.    We find no infringement of a substantial
right of the accused, and therefore no reversible error.      State
v. Watkins, 156 Mont. 456, 481 P.2d 689.
          As the United States Supreme Court recently said:
          " * * * the law does not require that a defend-
          ant receive a perfect trial, only a fair one
          * * *." State v. Tucker, 42 U.S.L.W. 4887,
          4891 (U.S. June 10, 1974)
    The r e c o r d h e r e d e m o n s t r a t e s t h a t d e f e n d a n t r e c e i v e d a f a i r

    trial.       A c c o r d i n g l y , t h e c o n v i c t i o n of t h e d e f e n d a n t i s

   affirmed.


                                                                                     6

                                                             -----------------Ad-------------
                                                                                              v   --

                                                                               Justice
   W e concur:




            M'   ~ a m e sS o r t e , D i s t r i c t
a Chief ,J u istt ti icne gJames l a c e Hoafr rMsro. n .
   i e s                    in p
                                   T.           i

  Mr.   J u s t i c e Wesley C a s t l e s s p e c i a l l y c o n c u r r i n g :

                 I concur i n t h e r e s u l t b u t do n o t a g r e e t h a t any e r r o r
  o c c u r r e d on i s s u e No. 1. I a g r e e t h a t i f any e r r o r o c c u r r e d
  it was h a r m l e s s .
