                            NO.    94-426
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1996




APPEAL FROM:   District Court of the Eighth Judicial District,
               in and for the County of Cascade,
               The Honorable John M. McCarvel, Judge presiding.


COUNSEL OF RECORD:

          For Appellant:

               Eric Olson, Great Falls, Montana
          For Respondent:

               Joseph P. Mazurek, Attorney General, Barbara Harris,
               Assistant Attorney General, Helena, Montana; Brant
               Light, Cascade County Attorney, Great Falls, Montana



                             Submitted on Briefs:      August 15, 1996

                                            Decided:   December 12, 1996
Filed:
Justice James C. Nelson delivered the Opinion of the Court.


         Thomas Milton (Milton) appeals from a jury verdict in the

Eighth Judicial District Court, Cascade County, finding him guilty

of aggravated assault, a felony.               He also appeals the District

Court's denial of his motion for a new trial.                  We reverse and

remand.

         We address the following issue on appeal:

         Did    the   District   Court   err    in   denying   Defendant     the

opportunity to cross-examine the victim about a civil lawsuit the
victim   had filed against the owner of the bar where the assault

occurred?
                       Factual and Procedural Background

         Robert Snyder (Snyder), was at the Beacon Bar in Great Falls,

Montana,       the night and early morning of March 10-11, 1993.           While

at the bar, he drank a few beers and visited with friends.                 As he

left the bar about 1:00 am,          he noticed a commotion outside the

door.      Snyder saw a black male with braided hair, Milton, standing

near the doorway arguing with another man.

         As he walked out the door,      Snyder told the two men to stop

fighting or he would call the police.            Snyder continued toward his

car, and as he did so, he felt someone hit him in the neck.            Snyder

suffered a laceration to the neck just above the clavicle, cutting

his jugular vein.         Snyder, bleeding profusely, staggered into the

parking lot, where he encountered two of his friends.             They rushed

him to the hospital where he underwent emergency surgery to halt

the bleeding.         Because of the wound, Snyder lost 30 to 40 percent
of his blood volume.
        Several law enforcement officers were dispatched to a possible

disturbance at the Beacon Bar.       When they arrived at the bar, they
noticed Milton at the center of a crowd of people.        He appeared to
be very agitated.        The officers took Milton into custody in an

attempt to quell any disturbance that might develop.        The officers
were as yet unaware that there had been a stabbing. They frisked

Milton prior to placing him in a patrol car, and as they did so,

they discovered that he was holding a small knife in his right
hand.     The officer who confiscated the knife noticed that there

appeared to be blood stains on it.

        While attempting to question people in the crowd in front of
the bar,     the officers received a report that there had been a

stabbing at the bar sometime earlier that night and that a young

man was in the hospital with life-threatening injuries.       An officer

was dispatched to the hospital to question the victim.        Snyder was

able to relate that two black males were involved and that one of

the men had braided hair.        Snyder later picked Milton out of a

photo line-up as the individual who had stabbed him.

        Milton was arraigned on April 9,       1993,   on the charge of

aggravated    assault,   a felony,   as specified in § 45-5-202, MCA
(1991)., to which he pleaded not guilty.      Trial began on April 11,

1994.    During cross-examination of Snyder, defense counsel sought

to present evidence that Snyder had engaged an attorney to sue the
owner of the Beacon Bar as a result of the injuries Snyder suffered

in the parking lot of the bar.           The District Court refused to
permit this evidence.      The defense made an offer of proof on this


                                     3
 issue,     maintaining that evidence of a pending civil lawsuit by
 Snyder against the owner of the bar over the incident charged

 against Milton gave Snyder a motive to testify falsely.                   The court
 denied the offer of proof as irrelevant.                 Following five days of
 trial,     the jury found Milton guilty of aggravated assault.

          On May 16, 1994, Milton filed a Motion for a New Trial on the

 grounds that the District Court should have allowed him to cross-

examine Snyder regarding the civil lawsuit.                      The court denied

 Milton's motion stating that since              the complaint did not name

 Milton as a party defendant, evidence concerning the lawsuit was

 irrelevant.
        Milton was sentenced to 20 years in Montana State Prison with

 an additional five years for the use of a weapon.                   The   sentences

 were to run consecutively.         Milton was also designated a dangerous

 offender for purposes of parole eligibility.

                                    Discussion

        Did    the    District   Court     err   in      denying    Defendant    the

 opportunity to cross-examine the victim about a civil lawsuit the

,victim     had filed against the owner of the bar where the assault

 occurred?

        The District Court determined that, since Milton was not named

 as a party defendant in Snyder's civil lawsuit against the Beacon

 Bar,      evidence    concerning    the       lawsuit     was     irrelevant    and

 inadmissible at Milton's trial on the charge of aggravated assault.

 Milton contends on appeal that evidence concerning the lawsuit is

 relevant and admissible to show Snyder's possible bias or motive to


                                           4
fabricate      testimony.    The State concedes that evidence concerning

the lawsuit is relevant, however, it contends that any error by the

District Court was harmless "given the overwhelming evidence of the

defendant's      guilt."
      The    determination      of      whether     evidence   is     relevant     and
admissible is left to the sound discretion of the trial judge and

will not be overturned absent a showing of abuse of discretion.

State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263.

It is generally within the district court's discretion to exercise

reasonable      control     over the mode and order of                interrogating

witnesses and presenting evidence so as to effectively ascertain

the   truth,     avoid any needless waste of time,                  and to protect

witnesses from harassment or undue embarrassment.                          State   v.

Gommenginger (1990), 242 Mont. 265, 274, 790              P.2d 455, 461.
      Nevertheless,        an accused's right to demonstrate the bias or

motive of       prosecution     witnesses      is    guaranteed      by   the    Sixth

Amendment right to confront witnesses.                Gommensinqer, 790 P.2d at

460   (citations    omitted).        Since bias or motive of a witness to

testify falsely bears directly on the issue of the defendant's

guilt, extrinsic evidence is admissible to prove that the witness

has a motive to testify falsely.               Gommensinqer,      790 P.2d at 460

(citations      omitted).       Thus,     the trial court's discretion in

exercising control and excluding evidence of a witness' bias or

motive   to testify falsely becomes operative only after the

constitutionally required threshold level of inquiry has been
afforded the defendant.          Gommenqinqer,       790 P.2d at 461.


                                           5
      In a 1994 case similar to the case before us, this Court held
 that the proper approach to the question of whether a defendant may

 cross examine a witness regarding a contemplated         civil     action

 against the defendant is to allow the cross-examination.         State v.

Arlington (19941,     265 Mont. 127, 142, 875 P.2d 307, 316. In

Arlinqton, the District Court granted the State's motion in limine

 to exclude   testimony   concerning a    contemplated   civil lawsuit

against Arlington by the victim of an assault.             We said in

Arlinqton,    that the contemplated lawsuit was relevant evidence

 affecting the credibility of the victim and that the trial court's

 decision to prevent the defendant from cross-examining the victim

was error because the jury was entitled to hear evidence that the

victim had an interest in the outcome of the trial.      Arlinqton, 875

 P.Zd at 315-16.

      Although,    unlike Milton,   Arlington would have been a party

defendant in any civil lawsuit, the reasoning we used in Arlinston

applies in the instant case because Snyder's chances of prevailing

 in his civil lawsuit would be greatly increased if Milton was

convicted of the charges against him.          Snyder alleged in his

 complaint that employees of the bar "served alcoholic beverages to
Thomas Milton even though he was a visibly intoxicated person" and

 that "[aIs a result of Thomas Milton's intoxicated condition, he

 assaulted [Snyder] and stabbed him with a knife."        In addition,

 Snyder alleged that

       [the owner of the bar1 was aware of the dangerous
      propensity of some of its customers including Thomas
      Milton and negligently     failed to provide security
      sufficient to protect its customers such as [Snyder].
                                     6
        Snyder did have a motive to testify falsely.                 Consequently,
even though Milton was not named as a party defendant in Snyder's

civil lawsuit, evidence of the lawsuit was relevant and admissible

at Milton's criminal trial.          Therefore,       we hold that the District

Court erred in denying defense counsel the opportunity to cross-

examine Snyder regarding the lawsuit.

        We concluded in Arlinqton, however, that the error there was
harmless.     The question in that case was whether the force used by
Arlington    to   defend   himself   was      excessive.     Arlington       admitted

beating the victim and there was extensive evidence that his attack

upon the victim was excessive and unreasonable.                        We said in
Arlincrton   that the fact that the victim was contemplating a civil

action against Arlington would not have materially affected the
jury's verdict in the face of "the overwhelming evidence provided

by the medical testimony and photographic evidence" that the victim

was severely beaten.       Arlinqton,        875   P.2d at 316.

        After reviewing the record in the case before us, we hold

that,    contrary   to   the   State's   contention,       the    evidence   against

Milton is not "overwhelming" and thus'the error was not harmless.
Other than the testimony of Snyder, the only individual to see any

contact between Milton and Snyder on the night Snyder was stabbed

said that the two "came together and fell apart."                     This   witness

testified that she did not see anyone stabbed nor did she see

anyone with a knife.

        The knife that was taken from Milton was tested by a forensic

serologist at the State Crime Lab in Missoula, but she was unable

                                         7
to    determine   if a stain found on the knife was        human   blood.
Milton's jacket was also tested for blood stains by the State Crime

Lab, but the forensic serologist could not definitely say that the

blood found on the jacket was Snyder's.      She could only state that
one genetic marker was consistent with Snyder's blood sample along

with 21 percent of the population.

       In State v. Rothacher (1995), 272 Mont. 303, 901      P.2d 82, we

quoted with approval      a 1967 United States Supreme Court case

wherein that Court stated that "before       a   federal   constitutional

error can be held harmless, the court must be able to declare a
belief that it was harmless beyond a reasonable doubt." Rothacher,

901 P.2d at 87 (quoting Chapman v. California (19671, 386 U.S. 18,

24,   87 S.Ct. 824, 828, 17 L.Ed.Zd 705)..

       Accordingly,   because we do not find the error in this case

"harmless    beyond   a   reasonable   doubt," we    reverse    Milton's

conviction on the charge of aggravated assault angemand for a new

trial.



We Concur:
