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State v. Carter11/25/1997
ion served to impeach the testimony that Appellant presented regarding his own good character, and, therefore, was proper under Rule 404(a)(1), M.R.Evid.
Although character evidence is generally not admissible to prove conduct, an accused may present evidence of a pertinent trait of his character, and the prosecution may offer contradictory evidence to rebut the same, or to test the witness' knowledge. Rule 404(a)(1), M.R.Evid.; State v. Clark (1984), 209 Mont. 473, 682 P.2d 1339. When the accused presents evidence not of a pertinent trait of his character, but of his good character in general, "he opens the door to all legitimate cross-examination . . . and must therefore accept the consequences which result." State v. Heine (1975), 169 Mont. 25, 28, 544 P.2d 1212, 1214.
Rule 405(a), M.R.Evid., provides the proper method of proving character evidence:
Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
Just notice procedures are not required to rebut or impeach an accused's good character evidence. State v. McQuiston (1996), 277 Mont. 397, 403, 922 P.2d 519, 523.
Applying the law to the instant case, it is clear that the State's cross-examination was proper rebuttal evidence under Rule 404(a)(1), M.R.Evid. Throughout its case-in-chief, the State refrained from placing before the jury evidence of Appellant's prior DUI convictions. Once Appellant himself placed his general good character at issue, the State was afforded all legitimate cross-examination to rebut this evidence and to test the witnesses' knowledge. The State's questioning about Appellant's prior DUI convictions was legitimate cross-examination under Rule 405(a), M.R.Evid., as that rule permits inquiry into relevant specific instances of Appellant's conduct. We conclude that the District Court did not abuse its discretion in admitting evidence of Appellant's prior DUI convictions.
Regarding the misstatement of the number of prior DUI convictions, the State argues that although this was error, it was harmless error. We agree. We have held that " n error by the trial court will be deemed harmless 'unless the record shows that the error was prejudicial.' " State v. Bower (1992), 254 Mont. 1, 5-6, 833 P.2d 1106, 1109 (quoting § 46-20-701(1), MCA). In determining the prejudicial effect of an error, we examine the totality of circumstances in which the error occurred. Bower, 833 P.2d at 1109 (citation omitted). Despite the misstatement as to the number of DUI convictions, two DUI convictions were ultimately admitted against Appellant. Further, the record shows that the State corrected its error when it recalled Officer Doney to the stand and elicited from him testimony that Appellant's record reflected only two DUI final convictions. In light of this correction, and the other evidence establishing Appellant's guilt such as the field sobriety, breath, and blood tests, we hold that the misstatement was harmless error.
Issue 4
Did the District Court err in admitting Appellant's breath test results?
It is within the broad discretion of the district court to determine whether evidence is relevant and admissible. State v. Woods (1995), 272 Mont. 220, 222, 900 P.2d 320, 321 (citation omitted). The standard of review for evidentiary rulings is whether the district court abused its discretion. Woods, 900 P.2d at 321.
A defendant charged with DUI is entitled to the procedural safe
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