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Town of Columbus v. Harrington12/11/2001
ontradicted was an isolated one and there is no reasonable possibility that it may have contributed to Harrington's conviction. We hold that the error was harmless.
Issue 2
Did the District Court err by allowing Newell to read statements from non-admitted documents into evidence and by admitting the results of the preliminary alcohol screening test (PAST)?
Harrington argues that during his direct testimony, Newell read a document, his arrest report, into evidence. When the prosecutor was questioning Newell about what led up to Harrington's arrest, Harrington objected stating, "There's been no indication, as in Rule 612, that he requires something . . . to refresh his memory as he's testifying. He's basically reading from a report." After objection, the prosecutor asked Newell, "would it help you to be able to refer to your report to refresh your recollection in this matter?" Newell replied, "I can testify without the report if I may periodically refer to it." Later in his testimony, the prosecutor asked Newell what he observed during Harrington's performance of the "walk-and-turn" test. Newell asked, "If [defense attorney] has no objections, may I use my notes from my report to refresh my memory?" Defense counsel responded, "If he has to, he has to."
On appeal, Harrington argues that the testimony was inadmissible because the foundation required by Rule 803(5), M.R.Evid., was not met. The State argues that Harrington did not raise Rule 803 at trial, and, therefore, he cannot assert it on appeal. Harrington contends that although he stated the wrong rule number at trial, the substance of his objection concerned the foundation required under Rule 803, M.R.Evid. We conclude that Harrington's objection at trial was sufficient to implicate the foundational requirements of Rule 803, M.R.Evid.
Questions of admissibility of evidence are left to the sound discretion of the trial court, and are subject to review only in the case of manifest abuse. Jim's Excavating Service, Inc. v. HKM Associates (1994), 265 Mont. 494, 506, 878 P.2d 248, 255.
Rule 612, M.R.Evid., permits witnesses to use writings to refresh their memory while testifying. Watkins v. Williams (1994), 265 Mont. 306, 312, 877 P.2d 19, 22. The Commission Comments to the rule note that:
At the outset, it is important to distinguish between writings used to refresh the memory of a witness, which are governed by this rule, and writings denominated as recorded recollection, which are governed as a hearsay exception under Rule 803(5). A writing used to refresh memory is one that is meant to help a witness who has a memory of the subject of his testimony, but who needs a stimulus in order that his memory be revived. The witness can then testify independently of the writing, and it is his memory or recollection which is used as evidence and not the writing. A recorded recollection is a writing made by or for the witness about a subject of which the witness retains no independent recollection.
In discussing the foundation required by Rule 612, M.R.Evid., the Commission took note that a previous statute and case law required a foundation showing that "the writing must have been made by the witness or under his direction, at a time when the event occurred or when the facts were fresh in the witness' memory, and that the witness must have known the writing to correctly state the facts," and stated that " his is inconsistent with the common-law doctrine . . . The common-law doctrine has been revived by later Montana cases. . . . The foundation is a matter addressed to the trial court, and it is within the trial court's discretion to permit the witness to refresh his me
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