                                       NO.   82-15

           I N THE SUPNME COURT O THE STATE O MONTANA
                                 F           F

                                             1983



STATE O M N A A
       F O T N ,

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



RANDY KELLER,

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



Appeal from:    D i s t r i c t C o u r t o f t h e Second J u d i c i a l D i s t r i c t ,
                I n and f o r t h e County o f S i l v e r Bow
                Honorable Arnold O l s e n , Judge p r e s i d i n g .

Counsel of Record:

     For Appellant:

         Joseph C.        E n g e l , I11 a r g u e d , B u t t e , Montana

     F o r Respondent :

         Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
         S h e r i Sprigg argued, A s s i s t a n t Attorney General,
          H e l e n a , Montana
         R o b e r t M. McCarthy, County A t t o r n e y , B u t t e , Montana
         C h r i s M i l l e r a r g u e d , B u t t e , Montana



                                          Submitted:              November 1 7 , 1982

                                             Decided:             May 5 , 1983

Filed:   ;VIA? 5 - 1983
Mr. Justice Daniel J.               Shea delivered the Opinion of the
Court.


      Defendant, Randy Keller appeals from a conviction by
jury verdict of misdemeanor assault in Silver Bow County
District Court.           Keller was sentenced to the maximum six
months in jail a.nd fined $500.                  Sentence was stayed pending
outcome of this appeal.
      Defendant Keller contends that the trial court erred in
excluding the testimony of two witnesses who would contradict
the testimony of the alleged assault victim, Mike Littl-e. He
further        contends      that    the     prosecutor     wrongfully     took
advantage of the exclusion of that testimony by pointing out
in his closing argument that the defense counsel had promised
in his opening statement to produce testimony of witnesses to
contradict the testimony of the alleged victim, Mike Little,
but   then      failed to produce the promised               testimony.      We
reverse on both grounds and order a new trial.
      The procedural background places the issue in context.
Defendant relied on self-defense.                  The only witnesses to the
fight    were     the     defendant        and    the   complaining    witness.
Defense counsel made his opening statement immediately after
the State made its opening statement.                   Defense counsel told
the     jury    that    he    would    call       two   witnesses   who   would
contradict the testimony of Mike Little, the alleged victim,
as to how the fight started and who was the first aggressor.
The witnesses were not eye witnesses to the fight but Mike
Little had later told them how the fight started.                     The State
did not object to this statement of what the defense would
prove.
        During     the    State's     case-in-chief     defense     counsel
cross-examined Mike Little and laid the groundwork for the
impeachment testimony to come from the two witnesses alluded
to in the opening statement.           Mike Little denied that he had
made statements to anyone indicating that he had started the
fight.     The State again failed to object to this line of
questioning.
        However,    the    State    made   its   move   just    before     the
defendant was to present his case.               After resting its case
the    State     filed    a motion    in limine requesting that the
defense not be permitted to present the two witnesses who
would in essence impeach or contradict the testimony of Mike
Little as to how the fight started and who was the first
aggressor.       The State contended that the defendant had failed
to comply with the notice provisions of section 46-15-301(2),
MCA, which provides in substance that to rely on self defense
the defendant must, at the time of entering his plea, or
within 10 days afterward, provide the State with the names
and addresses of the self defense witnesses.                    The statute
also     contains    a    good     cause   exception    which    excuses    a
defendant from giving the required notice.               The trial court
granted the motion in limine and ordered that the defendant
could    not     call witnesses to rebut the testimony of                  the
alleged victim.
       The State, however, was not content to abide by the
fruits of its successful motion.            During the State's rebuttal
in closing argument, to which the defense could not respond,
the State asked the jury to consider the defendant's failure
to produce the witnesses he had promised during his opening
statement.       The State argued:
    "Now, Mr. Engle [the defendant's attorney] in his
    opening statement made a great deal of the fact
    that he was going to produce evidence showing that
    Mike Little was a liar.      That evidence never
    appeared. There - - evidence --Little is
                     is no         that Mike
    a liar."
    --         (Emphasis added.) (Tr. Nov. 17, 1981 at
    2.)
     This argument requires reversal.                  The State, by its
successful motion in limine, procured the absence of defense
witnesses who would be called to contradict the testimony of
the State's chief witness.            Having done so, the State could
not ethically argue to the jury that defense counsel had
failed    in   his   promise     to    produce    witnesses      who    would
contradict the testimony of Mike Little as to how the fight
started and who was the first aggressor.               It is difficult to
conceive of more unfair and prejudicial trial tactics.
    We    next   consider whether         the    trial    court     properly
excluded the defense witnesses on the grounds that defense
counsel had failed to comply with the notice provisions of
section    46-15-301 (2),      MCA,    which,    among     other       things,
requires that a defendant give notice of intent to rely on
self defense and that the defendant supply the prosecution
with the names and a-ddresses of witnesses to be called to
establish this defense.        The statute provides that the notice
and na-mes and addresses must be provided to the prosecution
"at the time of entering his plea of not guil-ty or within 10
days thereafter or at such later time as the court may for
good cause permit."      Section 46-15-301(2) (b), MCA.             In fact,
this statute contains two references to good cause as a
factor    in   permitting      notification      and    giving     names   of
witnesses after the ten day period has expired.
    Although the defendant did not give a formal, written
notice within the time limits set by section 46-15-301(2), it
is undisputed that the State knew the defendant intended to
rely on self defense.     The parties dispute, however, whether,
at some time before the trial defendant gave the names and
addresses of the witnesses to the State.          Notwithstanding
this factual dispute, under the facts here the trial court
abused its discretion in not permitting the defense witnesses
to testify.
        The State, although faulting defendant for not providing
it with names and addresses of self-defense witnesses in
advance of trial, filed its motion in limine too late under
the local court rules.      Yet, the trial court ignored this
fact.     Rule 6 of the Silver Bow County District Court Rules
provides that a motion in limine must be filed before the
start of trial.     This was not done, and yet the trial court,
without considering whether the State had good cause for its
late filing, granted the motion in limine.       To excuse a late
filing it was at least incumbent on the trial court to
determine whether the State had good cause for its failure to
timely file the motion.      And, it was also incumbent on the
trial court to determine if the defendant had good cause in
failing to comply with the notice statute.
    A fair assessment of the procedural context in which the
State filed its motion in limine, would have revealed that
the State did not have good cause for its late filing.         To
grant the motion at that juncture could only have resulted in
unfair prejudice to the defendant's case in the eyes of the
jury.
    When the State filed its motion in limine, the defense
counsel, without     objection   from   the   State, had   already
committed himself in the opening statement and during the
cross-examination of Mike Little, to producing witnesses who
would testify that Mike Little had tol-d them a different
story as to how the fight started and who was the first
aggressor.       In failing to object the State waived its right
to later file its motion in limine seeking to exclude the
testimony      promised     by    defense    counsel   in    his     opening
statement,       the    foundation     for   which   was    laid    by     the
cross-examination of Mike Little.             During cross-examination,
Little denied telling anyone that he had started the fight.
       After   defense     counsel had       committed himself       in the
opening statement and cross-examination of Mike Little, to
calling the       impeachment witnesses, nothing but               prejudice
could befall the defendant and defense counsel when the trial
court granted the State's motion in limine excluding the
witnesses.       Regardless of whether the prosecutor gilded the
lily by his prejudicial comments in closing argument, the
jury would believe that defense counsel had not kept his
promise and actually was unable to produce witnesses to
contradict the testimony of Mike Little.             This not only would
cause the jury to lose faith in defense counsel, it also had
the effect of bolstering the testimony of Mike Little as to
how the fight started and who was the first aggressor.                     In
failing to produce the witnesses who would contradict the
testimony of Mike Little, the jury would believe defense
counsel had not lived up to his promise.
       Beyond the manifest prejudice to defendant caused by the
State's failure to object we further note that the trial
court failed to determine whether defendant had complied with
the good cause exceptions to section 46-15-301(2), MCA, which
provide that notice can be dispensed with upon a showing of
good    cause.         Although   no   formal   notice     was     given   in
compliance with the rule, a dispute exists as to whether
defense counsel in fact told the State that he would call
self-defense witnesses, and whether he gave their names to
the   State.       The        court   should    have   made   a    factual
determination on this question.                Furthermore, the record
demonstrates that defense counsel had strong legal reasons to
believe that, under the circumstances of this case, he was
not required to give the notice.               He provided authority to
the trial court to the effect that a non-incident impeachment
witness, one who is called only to impeach a witness on the
ground of a prior         inconsistent statement, does not fall
within    the   ambit    of    such   a   notice   statute.       Here   the
witnesses were to be called only to testify that sometime
after the fight the complaining witness told them a different
version of how the fight started and who was the first
aggressor.      These factors strongly indicate that regardless
of whether defense counsel had technically complied with the
notice statute, he nonetheless had good cause for not doing
so.      Defense counsel simply believed, in good faith, and
supported by legal authority, that the notice statute was
inapplicable.
      The judgment of the District Court is reversed and the
cause remanded for retrial.




We Concur:



      Chief Justice
       Justices




Mr. Chief Justice Frank I. Haswell specially concurring:
       I concur in the result reached by the majority on the

ground of prejudicial jury argument by the State following
exclusion of two witnesses for the defense.   I do not concur

in the balance of the majority opinion.


                              4 Chief ~ ice s d 4
                                 ~ us &
Mr. Justice Fred J. Weber specially concurs as follows:
     I agree with the conclusion in the majority opinion that
the closing argument on the part of the prosecution is a
sufficient basis      to    require       reversal   and   a    new   trial.
However, I do not agree with other portions of the opinion.
     Section 46-15-301 (2), MCA, requires that a defendant
furnish   to   the   prosecution      a    statement of        intention   to
interpose the defense of justifiable use of force (formerly
self-defense) and :
     " (b) if the defendant intends to interpose any of
     these defenses, he shall also furnish to the
     prosecution and file with the clerk of the court
     the names and addresses of all witnesses other than
     the defendant to be called by the defense -      in
     support thereof       . . . ."
                              (emphasis added)
     The District Court pointed out that the attorney for the
defendant on November 6 filed a notice of intent to rely on
the defense of self-defense which did not contain the names
of witnesses.
     The two attorneys disagree on whether or not the names
of the witnesses were actually furnished.                  Following are
pertinent portions of the discussion by counsel before the
District Court:
     "MR. MILLER [deputy county attorney] : Your Honor,
     at this time I would like to file with the Court
     the Motion in Limine which I have drafted
     requesting that the Court enter an Order in Limine
     restricting   the defendants from calling any
     witnesses other than Mr. Keller in support of his
     defense of self defense,


     "THE COURT:    You better sign it.                You say he
     refused despite a demand to do so.               When did you
     make a demand?
     "MR. MILLER: On Friday afternoon, or ra-therFriday
     morning on the 13th of November.   [Trial commenced
     on November 16.1 Mr. Engel informed me that he may
     have a couple of witnesses, a couple of other
     witnesses to testify, and I asked him at that time
     to identify them, and he would not do so, Your
     Honor.
     "THE COURT:       What did he say?
     "MR. MILLER:   He said that he would not identify
     the witnesses; that he did not have to.
     "THE COURT:       Did you cite the law to him?
    "MR. MILLER:    I did, Your Honor.    He maintained
    that the witnesses were to testify to a prior
    inconsistent statement by the victim which argument
    I believe is speechless, Your Honor, since the
    inconsistent statement, if it were in fact goes
    directly to the issue as to who was the first
    aggressor. That is the heart of the claim of self
    defense.    We have not had the opportunity to
    discover those witnesses. I believe I heard those
    witnesses for the first time only during the
    testimony this morning


    "THE COURT:   Why didn't you [Mr. Engel] tell him
    who they were?
     "MR. ENGEL:        I did tell him on Friday morning who
     they were.
     "MR. MILLER:            Your Honor, that's not the fact.
    "MR. ENGEL: I had two conversations with you, Mr.
    Miller, one down in your office at which time I
    felt that it was unnecessary to advise you of the
    witnesses, but after you dismissed the charge, I
    told you that the two witnesses were Dave Cote and
    Rick McGinnis.
    "MR. MILLER: I respectfully state that that is not
    the case, Your Honor.
     "MR. ENGEL:       You weren't listening then.
    "MR. MILLER:   The first time I have heard those
    names was in testimony today.


    "THE COURT: The Court grants the Motion in Limine
    for the reason that on the 6th of November, Mr.
    Engel filed a notice of intent to rely on the
    defense of self defense. He dated that notice the
    4th of November, indicating that he was going to
    rely on self defense, and he has failed, neglected
    and refused to provide the State with the names of
    the witnesses as described by statute."
    It is true that defense counsel argued that the last
sentence   of    section      46-15-301, MCA,   which   states   "This
subsection      does   not    apply   to   rebuttal   witnesses,"   is
applicable here.        As pointed out in the majority opinion,
defense     counsel      argued    that    a    non-incident         impeachment
witness does not fall within the ambit of the notice statute.
      However, the key factor is that the defendant's attorney
had   the   names      and    addresses of      the    two witnesses whose
testimony    would      bear    significantly upon           the   question of
whether     or   not    the    defendant       was    the    first   aggressor.
Clearly, that relates to justifiable use of force (formerly
self-defense).         Under the statute the names and addresses of
the witnesses should have been furnished to the prosecution
at the time of the filing of the notice of self-defense even
though the witnesses might be technically classed as rebuttal
witnesses, because the essence of their testimony is "in

support" of the defense of self-defense.                    Section 46-15-301,
MCA, requires qood           faith disclosure on the part of both
defendant's attorney and the prosecution.                     Such good faith
disclosure was not made by defense counsel.
