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No. 81-398 IN THE SUPREME; COURT OF THE STATE OF MONTANA 1982
STATE OF MONTANA, Plaintiff and Respondent, -vs-THOMAS D. HOLZWORTH, Defendant and Appellant.
Appeal from: District Court of the Seventh Judicial District, In and for the County of Dawson, The Honorable
L. C. Gulbrandson, Judge presiding.
Counsel of Record: For Appellant: Jerry D. Cook, Gleizdive, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana Richard A. Simonton, County Attorney, Glendive, Montana
Submitted on Briefs: May 20, 1982 Decided: October 6, 1982
8CT 6 -1982
Filed:
blr. Chief Justice Frank I. daswell delivered the Opinion of
the Court.
This case presents the question of whether the Statzfs
reference to defendant's juvenile offenses during the cross-
examination of defendant's character witness constitutes
reversible error. The District Court admonished the jury to
disregard these references except those of which the witness
had personal knowledge and, after a jury conviction, desig-
nated defendant a dangerous offender and sentenced him to
thirty years at the Montana State Prison. We reverse and
remand for a new trial.
The character witness called by the defense testified
that he had known defendant since he was a little boy, that
he had lived all of his life in the area where the incident
occurred and that defendant had worked for him for a month
in 1978. On cross-examination, the prosecuting attorney

questioned the witness as follows:

"Q. Were you aware that when he was 15

years old he was charged with attempted

rape?

"MR. COOK: Objection, Your Honor.

"0. And served six months probation?
"'JHE COURT: There is an objection, Mr.
Simonton."

'The defense attorney then moved for a mistrial, which was denied. A conference was held in court chambers, in which the defense attorney objected to any cross-examination involving juvenile recorus. The Eistrict Court decided to sustain the objections to the questions involving juvenile records and gave the following admonition to the jury:
"THE COURT: For the record, the last
objection is sustained. The jury will
disregard any remarks regarding juvenile
offenses committed by the defendant, ex-

cept insorar as the wltness may know of: his own knowledge of any activity. TO that extent you may ask. But, regarding juvenile activity that he would not be aware of, under the statute should not be referred to."
It is clear this case does not fall within the scope of Davis v. Alaska (1974), 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347, where the Court held that, in a criminal case, the defendant is denied his right of confrontation when he is prohibited from cross-examining a prosecutor's witness regarding the witness's juvenile probation. See also, State
v. Daniel (La. 1979), 376 So.2d 1361. Here, however, the State sought to cross-examine a defense witness and this fact distinguishes Davis from the case at bar. State v.
In those jurisdictions having juvenile court statutes excluding evidence similar to section 41-5-106, MCA, some have allowed introduction of the evidence of the youth proceedings in certain circumstances. These jurisdictions
include:  Alabama  (Ala.  Code  S;  12-15-72  (1975));  Arkansas  
(Ark.  Stat.  Ann.  45-444  (1977));  Illinois  (Ill.  Ann.  
Stat.,  Ch.  37,  702-9  (Smith-Hurd  1972));  Mississippi  

(Miss. Code Ann. S 43-23-17 (1972)); Ohio (Ohio Rev. Code Ann. g 2151.358 (Page 1981)); and Tennessee (Tenn. Code Ann. 5 37-233 (1977)). Others, however, exclude any introduction of this evidence and tnese include: Colorado (Colo. Rev. Stat. 19-1-109 (1978)); Missouri (Mo. Rev. Stat. S 211.271
(1978)); Rhode Island (R.I. Gen. Laws, 14-1-40 (1969)); and West Virginia (W.Va. Code S 49-7-3 (1980)).
We think the better reasoned cases exclude the evi-dence for all purposes and we so hold here. Cf., Cotton v.
,!f'

Unlted States (10th Cir. 1966), 355 F.2d,680, and Annot., 63
The pertinent part of Montana's applicable statute
(section 41-5-106, MCA) reads as follows:
"Neither the disposition of a youth under
this chapter nor evidence given in youth
court proceedings under this chapter
shall be admissible in evidence except as

otherwise provided in this chapter."
Eisewhere in the chapter, section 41-5-603, MCA, allows
inspection or youth court records to certain people, none of
which is applicable to the issue here.

Section 41-5-106, MCA, states that neither the dis-
position nor evidence of youth court proceedings is admissi-
ble in evidence. Obviously, testimony of juvenile proceed-
ings on cross-examination is "evidence" and the plain
language of the statute states that such is not admissible.
There is no exception carved out for cross-examination of
defendant's character witnesses.

In the instant case the defendant was prejudiced by

the prosecutor's asking of the questions set out above.  The  
prosecutor  ignored  the  defense  attorney's  objection  and  
attempted  to  bring  more  inflammatory  evidence  before  the  

jury witnout giving the Uistrict Court the opportunity to
rule on the objection. Such conduct is not commendable and
contravenes the policy underlying the Youth Court Act that
all evidence of this nature be excluded.

in State v. Shannon (1933), 95 Mont. 280, 26 P.2d 360,
the prosecutor improperly asked several questions about the
defendant's alleged prior offenses and, even though the de-
fendant denied the allegations, this Court found the asking
of the questions constituted prejudicial error. Accordingly,
defendant's conviction was reversed and the case remanded

for a new trial. Similar reasoning obtains here regaraing
this prosecutor's questions about defendant's juvenile
offenses. This act constituted prejudicial error, and the
judgment of the District Court is vacated and the cause
remanded for a new trial.

-
Chief ~usti6e

We concur:

L'

Justices

Mr. Justice Gene B. Daly dissenting.
I respectfully dissent. While agreeing with the majority that generally juvenile records cannot be used as evidence against an accused, I do not believe that the prosecutor's questioning in this case constituted reversible error.
Given the proper circumstances alleviating the prejudicial effect of the evidence, juvenile records may be used to impeach "good character" testimony by a criminal defendant. See, Annot. 63 A.L.R.3d 1112 S 4(b). The rationale for this proposition is that the search for truth at a trial is inhibited if a defendant or a defense character witness is allowed to give the erroneous impression that the defendant is lily-white. See United States
v. Canniff (2nd Cir. 1975), 521 F.2d 565; and State v. Stepheny (197811 -----Tenn .Crim.App. ----, 570 S.W.2d 356. This case involves the balancing of the search for truth with
the policy of protecting juvenile records. Here, because of the safeguards surrounding the prosecutor's questions, I would not say reversible error occurred. The objection to the prosecutor's questions was sustained and an admonition was given. The jury
was also instructed to disregard any remarks made by counsel not supported by the evidence. These procedures limited the prejudi-cia1 effect of the questioning.
I would affirm the District Court's judgment.

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