State v. Anderson

No. 83-442

IN THE SUPREME COURT OF THE STATE OF MONTANA

1384

STATE OF MONTANA,

Plaintiff and Respondent,

-VS-

ROGER L. ANDERSON,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis & Clark,

The Honorable Gordon R. Bennett, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Jackson Law Firm; Gregory Jackson argued, Helena,

I4ontana

For Respondent:

Hon. Mike Greely, Attorney General, Helena, Montana

Clay R. Smith argued, Asst. Atty. General, Helena

Mike McGrath argued, County Attorney, Helena, Montana

Submitted: April 2 0 , 1984

Decided: July 16, 1984

Filed:

JUC . '1984

i

Clerk

Mr. J u s t i c e L. C. Gulbrandson d e l i v e r e d t h e Opinion of the

Court.

D e f e n d a n t Roger A n d e r s o n a p p e a l s f r o m h i s c o n v i c t i o n

i n t h e D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t , Lewis

and C l a r k C o u n t y , on t h r e e c o u n t s o f sexual assault. We

affirm.

On March 22, 1983, Roger Anderson was charged by

information with three sexual offenses: sexual intercourse

without consent, attempted sexual intercourse without

consent and sexual assault. The first two c h a r g e s w e r e

s u b s e q u e n t l y amended t o s e x u a l a s s a u l t . A l l of the charges

involve three minor children: M., the defendant's

step-daughter, a g e t e n a t t h e t i m e o f t r i a l ; R. F., a friend

of M., a g e t h i r t e e n a t time o f trial; a n d L. M., another

f r i e n d o f M., age nine a t t h e t i m e of t r i a l .

R. F. and L. M. testified during the State's

case-in-chief c o n c e r n i n g s e x u a l a s s a u l t s by t h e d e f e n d a n t .

M., who made statements to authorities incriminating the

defendant, changed h e r s t o r y p r i o r t o t r i a l and testified

during the defendant's case-in-chief, denying that sexual

a s s a u l t s had b e e n c o m m i t t e d by d e f e n d a n t on h e r o r t h e o t h e r

victims. However, t h e S t a t e produced testimony t o confirm

a l l of t h e c h a r g e s of s e x u a l a s s a u l t . The j u r y a l s o h e a r d

expert testimony on the subject of sexual offenders and

c h i l d sex crime.

The jury returned a guilty verdict on all three

counts. D e f e n d a n t s u b s e q u e n t l y moved f o r a new t r i a l , b u t

the motion was denied. The court eventually sentenced

d e f e n d a n t t o t h r e e twenty-year concurrent sentences a t the

Montana S t a t e P r i s o n , suspended fifteen years of each

sentence, and d e s i g n a t e d defendant a s nondangerous for

purposes of parole eligibility. From h i s conviction and

d e n i a l o f h i s m o t i o n f o r a new t r i a l , d e f e n d a n t a p p e a l s .

The f o l l o w i n g i s s u e s a r e p r e s e n t e d on a p p e a l :

(1) Whether t h e D i s t r i c t Court e r r e d i n tendering a

c o p y of the defendant's t r i a l brief t o the State prior t o

trial and, if so, whether any substantial right of the

d e f e n d a n t was p r e j u d i c e d ?

( 2 ) Whether t h e D i s t r i c t Court e r r e d i n granting t h e

S t a t e ' s motion i n limine t o exclude evidence concerning a

prior s e x u a l a s s a u l t a l l e g a t i o n by p r o s e c u t i o n w i t n e s s

R. F. a g a i n s t an i n d i v i d u a l o t h e r t h a n t h e d e f e n d a n t ?

( 3 ) Whether t h e D i s t r i c t C o u r t a b u s e d i t s d i s c r e t i o n

by excluding evidence of the State's amendments to the

original information, although it took judicial n o t i c e of

t h e same?

( 4 ) Whether the District Court erred in permitting

testimony by a prosecution witness concerning prior

s t a t e m e n t s by a c o m p l a i n i n g w i t n e s s ?

( 5 ) Whether t h e D i s t r i c t Court e r r e d in refusing t o

permit defendant's r e q u e s t t o examine a p a r t i c u l a r w i t n e s s

a s a h o s t i l e or adverse witness?

(6) Whether the Distict Court erred by admitting

r e b u t t a l t e s t i m o n y c o n c e r n i n g " p r i o r w r o n g f u l a c t s " by t h e

defendant?

( 7 ) Whether the District Court erred in denying

defendant's motion for a new t r i a l on g r o u n d s o f alleged

jury misconduct and insufficient credible evidence to

convict the defendant?

( 8 ) Whether t h e D i s t r i c t Court erred in refusing to

give the Smith jury instruction, which provides that

a l l e g a t i o n s of s e x u a l c r i m e s a r e " e a s i l y made b u t d i f f i c u l t

t o refute?"

WHETHER THE DISTRICT COURT ERRED IN TENDERING A C O P Y O F T H E

D E F E N D A N T ' S TRIAL BRIEF T O THE STATE PRIOR T O TRIAL AND, IF

SO, W H E T H E R A N Y S U B S T A N T I A L R I G H T O -------------------

F THE DEFENDANT WAS

PREJUDICED?

D e f e n d a n t ' s t r i a l b r i e f , p r e s e n t e d t o t h e j u d g e a few

days b e f o r e t r i a l , o u t l i n e s four arguments o r t h e o r i e s t o be

advanced by defense counsel: (1) t h e introduction of

testimony to establish defendant's "good character;" (2)

e v i d e n c e o f w r o n g f u l m o t i v e s on t h e p a r t o f R. F. t o t e s t i f y

against the defendant, to wit: t h a t s h e was a t t e m p t i n g t o

" g e t back" a t d e f e n d a n t , a p o l i c e o f f i c e r , f o r apprehending

her for criminal a c t i v i t y on a t l e a s t two o c c a s i o n s , and

reporting another incident of her wrongful conduct to

sheriffs' deputies; (3) introduction of evidence of the

S t a t e ' s amendments t o t h e o r i g i n a l i n f o r m a t i o n t o show t h e

"instability" of prosecution witness testimony; and (4)

i n t r o d u c t i o n of e v i d e n c e of a previous sexual crime charge

made by R. F. a g a i n s t a n o t h e r man, a charge subsequently

dismissed, t o a g a i n e s t a b l i s h w r o n g f u l m o t i v e s by R. P. in

complaining a g a i n s t defendant.

Upon r e c e i p t o f t h e b r i e f , t h e t r i a l j u d g e t e n d e r e d a

copy t o t h e c o u n t y a t t o r n e y . Defense counsel l e a r n e d t h a t a

c o p y had b e e n d e l i v e r e d when t h e c o u n t y a t t o r n e y c a l l e d him

t o o b t a i n f u r t h e r i n f o r m a t i o n a b o u t s t a t e m e n t s made i n t h e

brief. Prior to the s t a r t of trial, defendant moved to

dismiss the charges, a r g u i n g t h a t r e l e a s e o f t h e b r i e f had

unfairly permitted the State to rehabilitate its witnesses

and revise its voir dire, cross-examination and rebuttal

strategies. The court responded that defendant was never

ordered to produce the trial brief, and that it had tendered

a copy of the brief only to expedite the trial. The motion

to dismiss charges was denied.

On appeal, defendant renews his initial arguments

supporting dismissal of the charges, arguing that release of

a copy of the brief to opposing counsel was in violation of

the constitutional guarantee against self-incrimination and

local court rules and customs pertaining to trial briefs.

The protections of the Fifth Amendment to the United

States Constitution, made available to criminal defendants

in state proceedings through the due process component of

the Fourteenth Amendment, pertain only to compelled

self-incrimination. Lefkowitz v. Cunningham (1977), 431

U.S. 801, 804-5, 97 S.Ct. 2132, 2135, 53 L.Ed.2d 1, 6;

Malloy v. Hogan (1964), 378 U.S. 1, 8, 84 S.Ct. 1489,

1493-94, 12 L.Ed.2d 653, 659-60. Assuming, for the purpose

of argument, that the contents of defendant's brief even

raised the prospect of self-incrimination, defendant was

under no compulsion to produce the information or arguments

summarized in the trial brief.

Furthermore, nothing in the First Judicial District

Court rule or custom on trial briefs affords defendant the

kind of confidentiality sought after respecting the contents

of his brief. The rule or custom requires only that a brief

set forth counsel's theory of the case and the issues

involved plus supporting authorities. Neither party need

disclose in detail the nature of evidence to be offered. A

brief need not be served on opposing counsel, but rule or

custom does not prevent the District Court, in the exercise

of its discretion, from forwarding a copy of the the trial

brief of one party to another after the brief is filed with

the court.

Whether there exists any set of circumstances under

which tender of a trial brief to an opposing party would be

impermissible, other than the threat of compelled

self-incrimination, is irrelevant here. The subject matter

of defendant's trial brief was to be freely offered and

elaborated upon at trial. Thus, defendant effectively

waived any privileges which may have been involved with

respect to the contents of the brief. - State v. Hardy

Cf.

(1977), 293 N.C. 105, 235 N.E.2d 821, 841, (work product

privilege waived when defendant or state seeks at trial to

make testimonial use of the work product). Moreover,

defendant suffered no substantial prejudice from disclosure

of the brief. Prosecuting attorneys presumably would have

moved in limine to exclude evidence of the amendments to the

information and R. F.'s allegation of previous sexual

assault even if they had not received the brief in advance

of trial. The disclosure that defendant intended to adduce

testimony about his "good character" and R. F. Is allegedly

wrongful motives is likely innocuous, as there is no

reasonable possibility that the trial court's tender of a

copy of the brief might have contributed to the conviction.

The most that can be said of the court's action is that it

fairly facilitated the trial process by avoiding disruption

of testimonial flow.

WHETHER THE -

DISTRICT COURT E R R E D I N GRANTING THE STATE'S

MOTION

------ I N L I M I N E TO E X C L U D E E V I D E N C E C O N C E R N I N G A PRIOR

SEXUAL ASSAULT

- A L L E G A T I O N BY PROSECUTION WITNESS R . F .

-------------------

AGAINST AN I N D I V I D U A L OTHER THAN THE DEFENDANT?

Defendant wished t o produce e v i d e n c e of a p r e v i o u s l y

dismissed sexual assault charge involving R. F. as the

c o m p l a i n i n g w i t n e s s t o d e m o n s t r a t e t h a t s h e had a v e n g e f u l

motive in bringing a similar charge against defendant.

P r i o r t o t r i a l , t h e S t a t e moved t o e x c l u d e t h i s e v i d e n c e and

the court conducted a hearing to consider the State's

motion.

The previous case, State v. Everitt Bratcher,

c o n c e r n e d a c h a r g e t h a t B r a t c h e r had s e x u a l l y a s s a u l t e d R.

F. on s e v e r a l o c c a s i o n s over t h e four-year period p r i o r t o

1980. The case was d i s m i s s e d on m o t i o n o f t h e p r o s e c u t i n g

attorney in January, 1980. According to defendant

Anderson's c o u n s e l , t h e c h a r g e a g a i n s t B r a t c h e r was u n t r u e ,

and counsel offered to produce Bratcher's attorney as a

witness to support the claim that t h e c h a r g e was false.

B r a t c h e r ' s a t t o r n e y would n o t o n l y t e s t i f y t h a t h i s c l i e n t

had a d a m e n t l y d e n i e d t h e c h a r g e , b u t t h a t i t was h i s b e l i e f

that the c h a r g e was m o t i v a t e d o n l y b y R. F.'s desire to

o b t a i n revenge f o r having been denied a c c e s s t o a p l a y a r e a

by Bratcher. Defendant Anderson's counsel argued that

i n d e p e n d e n t m e d i c a l t e s t i m o n y t o be h e a r d i n t h e immediate

c a s e would a t l e a s t c o n f i r m t h a t R. F. had n e v e r e x p e r i e n c e d

sexual intercourse. In summary, counsel maintained that

cross-examination of R. F. on the history of the prior

c h a r g e was j u s t i f i e d a s a t e s t o f R. F.'s credibility, and

t h a t t h e r e would b e no a t t e m p t made t o p r o b e i n t o R. F.'s

g e n e r a l moral c h a r a c t e r .

The State sought to exclude introduction of this

e v i d e n c e on t h e g r o u n d s t h a t t h e p r e v i o u s c h a r g e had b e e n

d i s m i s s e d b e c a u s e R. F.'s mother d i d n o t want h e r d a u g h t e r

to experience the rigors of trial, - because

not the

a l l e g a t i o n s against Bratcher were false. The p r o s e c u t i n g

a t t o r n e y r e s p o n s i b l e f o r t h e Bratcher c a s e t e s t i f i e d under

oath that the only basis for dismissing the charges was

because of R. F.'s mother's "vehement request," and that

t h e r e was no d o u b t i n h i s mind r e g a r d i n g t h e t r u t h f u l n e s s o f

R. F.'s allegations against Bratcher. One of the

p r o s e c u t i n g a t t o r n e y s i n t h e i n s t a n t c a s e informed t h e c o u r t

t h a t t h e s o c i a l w o r k e r i n v o l v e d w i t h R. F. i n the Bratcher

c a s e had u r g e d t h e f a m i l y t o d r o p t h e c h a r g e s , b e c a u s e R . F .

had e s s e n t i a l l y f o r g o t t e n t h e a l l e g e d a s s a u l t s , and b e c a u s e

t h e e x p e r i e n c e o f t r i a l c o u l d h a v e b e e n bad f o r h e r . As to

the matter of whether R.F. had suffered penetration, the

S t a t e i n d i c a t e d t h a t B r a t c h e r had b e e n c h a r g e d w i t h s e x u a l

assault, r e g a r d l e s s of s t a t e m e n t s made by R. F. t h a t could

be construed as evidence that she may have experienced

intercourse.

The t r i a l j u d g e g r a n t e d t h e S t a t e ' s m o t i o n i n l i m i n e ,

c o n c l u d i n g t h a t t h e d e f e n d a n t ' s " e v i d e n c e " was more u n f a i r l y

prejudicial than probative. The judge's explanation for

t h a t r u l i n g is i n s t r u c t i v e :

"Here w e have [ d e f e n d a n t ' s proposed]

e v i d e n c e t h a t c l e a r l y w i l l smear t h e

w i t n e s s of t h e S t a t e o f being n o t h i n g

less t h a n a s e x u a l l i b e r t a r i a n , always

g e t t i n g i n t r o u b l e , committing o t h e r

o f f e n s e s , b e i n g s e d u c e d f r o m time t o

t i m e , and s o on. I t ' s p r e s e n t e d , as

noted b y r

witness' c r e d i b i l i t y , but, i n f a c t , it

------------ p l a i n i n g w i t n e s s

p u t s t h e com . ..on

t r i a l f o r s e x u a l d e v i a t i -------------

on. When y o u

b a l a n c e t h a t a s a i n s t what can be proven

bv t h e f a c t t h a t s h e b r o u a h t a c h a r a e and

t h e n d r o p p e d i t , is p l a c i n g a b u r i e n on

the State that the State should n o t have

t o b e a r , and I t h i n k i t d e f e a t s t h e b a s i c

e n d t h a t we're t r y i n g t o r e a c h h e r e , a n d

t h a t is disc

------------o v e r t h e t r u t h a b o u t t h i s

D a r t i c u l a r c o m ~ l a i n t. . . T T l h e f a c t

t h a t under t h e circumstances d e s c r i b e d by

[the prosecutor i n the Bratcher case],

~.

t h a t t h i s c a s e was d r o w ~ e d i s n o t e v e n

.................... e a g ---------

very good e v i d e n c a i n s t h e r

, b u t i t ' s overwhel

c r e d i b i l i t y ....................... m i n g

----------

evidence a g a i n s t her c h a r a c t e r and would

................................ f t h e

t e n d t o make t h i s a t r i a l o

complaining witness." Tr. a t 25-26

(emphasis added).

On a p p e a l , d e f e n d a n t a r g u e s t h a t t h e e v i d e n c e s h o u l d

have been admitted. Defendant recognizes that the only

Montana c a s e o n t h e s u b j e c t , S t a t e v. McSloy (1953), 127

Mont. 265, 261 P.2d 663, holds that evidence of similar

sexual offenses claimed to have been committed is

inadmissible. N e v e r t h e l e s s , h e c o n t e n d s t h a t McSloy i s bad

law, out-of-step with t h e Montana R u l e s o f Evidence, and

c o n t r a r y t o a l i n e of c a s e s b e g i n i n g w i t h P e o p l e v. H u r l b u r t

( 1 9 5 9 ) , 1 6 6 Cal.App.2d 334, 333 P.2d 82, holding t h a t such

e v i d e n c e is a d m i s s i b l e .

R u l e 6 0 8 ( b ) , Mont.R.Evid., p r o h i b i t s use of e x t r i n s i c

evidence of specific instances of a witness' conduct to

attack his or her credibility, except that the same

i n s t a n c e s may b e i n q u i r e d i n t o on c r o s s - e x a m i n a t i o n of the

witness, i n t h e d i s c r e t i o n of t h e c o u r t , i f t h e e v i d e n c e is

probative of the witness' penchant for truthfulness or

untruthfulness. See Rule 608(b)(l). The McSloy rule

a d m i t t e d l y c u t s o f f even t h e l i m i t e d i n q u i r y contemplated by

the above-cited exception to Rule 608(b). Hurlburt,

h o w e v e r , i s more i n l i n e w i t h t h e c u r r e n t r u l e s o f e v i d e n c e .

A s t h e C a l i f o r n i a c o u r t emphasized, e v i d e n c e of p r i o r f a l s e

a c c u s a t i o n s of the same s e x u a l c r i m e involved in a more

current case, while not admissible for the purpose of

impeaching the general character or reputation of the

witness, may be admissible if probative of the witness1

s t a t e o f m i n d , m o t i v e , o r b i a s e s w i t h r e s p e c t t o making t h e

more c u r r e n t a c c u s a t i o n s . H u r l b u r t , 1 6 6 Cal.App.2d 334, 333

P.2d at 87. The principle expressed in Hurlburt-that

e v i d e n c e of prior f a l s e c h a r g e s may o f t e n b e p r o b a t i v e o f

the complaining witness' specific reputation for

untruthfulness-is approved by most j u r i s d i c t i o n s . See e.g.,

P e o p l e v . S i m b o l o ( 1 9 7 5 ) , 1 8 8 C o l o . 4 9 , 532 P.2d 9 6 2 ; P e o p l e

v. McClure ( 1 9 7 6 ) , 42 I l l . A p p . 3 d 9 5 2 , 356 N.E.2d 899; L i t t l e

v. State (1nd.App. 1 9 8 0 ) , 4 1 3 N.E.2d 639; Woods v. State

(Okla. C r i m . App. 1 9 8 3 ) , 657 P.2d 1 8 0 ; S t a t e v. Nab ( 1 9 6 6 ) ,

245 O r . 454, 4 2 1 P.2d 388; S t a t e v. Izzi ( 1 9 7 5 ) , 1 1 5 R . I .

4 8 7 , 348 A.2d 371.

I n cases involving sexual intercourse without consent,

t h e l e g i s l a t u r e h a s d e t e r m i n e d t h a t e v i d e n c e of a victim's

sexual conduct is inadmissible in all but very limited

circumstances. See Section 45-5-503(5), MCA. This

statutory prohibition reflects a compelling interest in

f a v o r o f " p r e s e r v [ i n g ] t h e i n t e g r i t y o f t h e t r i a l and .. .

preventling] i t f r o m becoming a t r i a l o f t h e v i c t i m . " State

v. Higley (Mont. 1 9 8 0 ) , 6 2 1 P.2d 1 0 4 3 , 1050-51, 37 S t . R e p .

1942, 1948. Although there are no specific statutory

limitations on the use of evidence of a victim's sexual

conduct i n sexual a s s a u l t cases, McSloy, Rule 6 0 8 ( b ) , and

evidentiary rules governing relevance, Rule 401,

Mont.R.Evid. and prejudice and confusion of issues, Rule

403, Mont.R.Evid., generally act as a barrier against

introduction of such evidence. Despite the general policy

against sordid probes into a victim's past sexual conduct,

we conclude that the policy is not violated or circumvented

if the offered evidence can be narrowed to the issue of the

complaining witness' veracity. Hall v. State (1978), 176

Ind.App. 59, 374 N.E.2d 62. Indeed, limiting or barring a

defendant's cross-examination of a complaining witness in a

sex crime case where there is evidence of prior false

accusations restricts defendant's enjoyment of the worth of

his constitutional right to confront witnesses. See Hughes

v. Raines (9th Cir. 1981), 641 F.2d 790, 792 (habeas corpus

action challenging restrictions on defendant's

cross-examination of complaining witness in attempted rape

prosecution).

Our inquiry in the immediate case is directed to

whether the trial court properly restricted mention of the

offered evidence of the prior sexual assault charges. We

emphasize that Hurlburt and related cases hold only that

evidence of similar sexual offenses claimed to have been

committed against the victim by other individuals is

admissible if the offenses were proven or admitted to be

false. Hurlburt, supra, 166 Cal.App.2d 334, 333 P.2d at 87;

People v. Johnson (Cal. Ct. App. 1967), 64 Cal. Rptr. 875,

881, vacated on other grounds (1968), 68 Cal.2d 646, 441

P.2d 111, 68 Cal.Rptr. 599, cert. den. (1969), 393 U.S.

1051, 89 S.Ct. 679, 21 L.Ed.2d 693; Little, supra (prior

allegations must be "demonstrably false"); Nab, supra. If

the charges are true or reasonably true, then evidence of

the charges is inadmissible, mainly because of its

prejudicial effect, see Little, supra, but certainly because

of its irrelevance to the instant proceeding. Little,

supra; - supra.

Nab, Furthermore, evidence of prior charges

which have not been adjudicated to be true or false; i.e.,

which may be true - false is also inadmissible, primarily

or

because its introduction circumvents the interest in

preserving the integrity of the trial and preventing it from

becoming a trial of the victim. See Little, supra

(reception of evidence which may be true or false allows

circumvention of laws designed to protect legitimate

interests of victim). These limitations do not infringe

upon a defendant's right to confrontation. See Hughes,

supra, 641 F.2d at 792-93.

In order to establish whether there is sufficient

support for the contention that the prior allegations are

false, a separate hearing outside the jury's presence should

be held. People v. Sheperd (Colo. App. 1976), 551 P.2d 210,

212. See also Woods, supra, 657 P.2d at 182. Such a

hearing was held in this case, and we conclude that, in

reviewing the arguments and offers of proof presented, the

court's decision to grant the state's motion in limine was

justified.

There was no competent evidence that the charges

brought against Bratcher on the basis of R. F.'s complaint

were fa.lse. That the charges were dismissed does not by

itself establish their falsity, especially in view of the

prosecuting attorney's testimony that the charges were

dismissed only because R. F.'s mother did not want her

daughter to experience the trial, and because of the offer

of proof concerning the social worker's belief that the

charges were true, based on her discussions with R. F.

Evidence of p r i o r c h a r g e s h a s been b a r r e d i n t h o s e i n s t a n c e s

where t h e c h a r g e s have been dropped due t o a n i n a b i l i t y t o

locate the victim, S t a t e v. Demos (1980), 94 Wash.2d 733,

619 P.2d 968, o r due t o a b e l i e f t h a t t h e r e w a s i n s u f f i c i e n t

evidence t o p r o s e c u t e , Johnson, supra, because t h e evidence

is n o t p r o b a t i v e o f truth or falsity. The same i s t r u e o f

the i n s t a n t case. The c h a r g e s w e r e n e v e r tested for truth

o r f a l s i t y and w e r e s t i l l d i s p u t e d a t t h e t i m e o f t r i a l .

Defense c o u n s e l ' s o f f e r s of proof are a l s o i r r e l e v a n t .

The fact that Bratcher's attorney would testify that

B r a t c h e r had d e n i e d t h e c h a r g e s is i n a d m i s s i b l e , whether on

grounds that a mere denial does not establish falsity,

Johnson, supra, or because the attorney's t e s t i m o n y would

have been inadmissible hearsay. See R u l e s 8 0 1 ( c ) and 802

Mont.R.Evid. a n d P e o p l e v . Mandel ( 1 9 7 8 ) , 6 1 A.D.2d 563, 403

N.Y.S.2d 63, 68, r e v ' d on o t h e r grounds ( 1 9 7 9 ) , 48 N.Y.2d

9 5 2 , 4 0 1 N.E.2d 1 8 5 , 425 N.Y.S.2d 63, c e r t . den. ( 1 9 8 0 ) , 446

U.S. 949, 100 S . C t . 2913, 64 L.Ed.2d 805. Similarly, the

e x i s t e n c e o f m e d i c a l t e s t i m o n y i n t h e i n s t a n t case t h a t R.F.

had n e v e r e x p e r i e n c e d i n t e r c o u r s e d o e s n o t p r o v e t h e f a l s i t y

of the p r i o r charges. B r a t c h e r had been charged w i t h s e x u a l

a s s a u l t , n o t s e x u a l i n t e r c o u r s e w i t h o u t c o n s e n t , a n d R. F.'s

e q u i v o c a l s t a t e m e n t s a b o u t what s h e had e x p e r i e n c e d a r e n o t

probative of the truth or falsity of the charge against

i3ratcher.

In short, the offered e v i d e n c e would not have been

probative of R. F.'s inclination for truthfulness or

untruthfulness, a s maintained by defendant, hut certainly

would have placed a prejudicial stamp on her general

character and reputation. The trial court concluded

correctly that this irrelevant, prejudicial evidence would

have shifted the focus of trial away from its central

purpose and thus had to be barred. Neverthless, the court

later permitted a reference that R. F. had been a victim of

another sexual assault. This evidence, which came about

through the testimony of social worker Mary Peterson, was

permitted for the limited purpose of showing to the jury

that R. F. could have had a basis for fantasizing the

incidents involving defendant Anderson. That ruling

followed testimony by Dr. Elizabeth Gunderson, a

petiatrician and defense witness, who testified previously

that a child like R. F., having experienced other sexual

assaults, could have a basis for fantasizing future sexual

assaults. Also, during closing arguments, defense counsel

reminded the jury about R. F.'s previous assault and implied

that she had fantasized the subsequent assault. Thus,

defendant did have the opportunity to challenge R. F.'s

veracity within the confines of the court's concern that the

trial of defendant not become a trial of the complaining

witness. This limited inquiry was proper in light of

Gunderson's testimony.

In summary, we modify our holding in McSloy to conform

to the principles expressed in Hurlburt and implicit in Rule

608(b). Applying this modified standard to the facts of the

immediate case, we conclude that the trial court did not

commit error in its rulings on the admissibility of evidence

concerning the Bratcher incident.

...................................................R E T I O N B Y

WHETHER T H E DISTRICT COURT ABUSED I T S D I S C

EXCLUDING EVIDENCE OF THE STATE'S AMENDMENTS TO THE ORIGINAL

INFORMATION, ALTHOUGH IT TOOK JUDICIAL NOTICE OF THE SAME?

The State amended its original information twice, both

times reducing charges of sexual intercourse or attempted

sexual intercourse to sexual assault. Defendant contended

that the amendments reflected changing stories by the

victims, and sought to admit evidence of the amendments for

the purpose of attacking the credibility of State witnesses.

The county attorney moved in limine to exclude the evidence

of the amendments, and supported his motion with the

following argument.

"[Als a basic trial tactic I made a

decision to amend the charges in this

case on two separate occasions. I will

admit that we made a mistake in our

office in reading the police reports

initially regarding the question of

sexual intercourse. I think we could

have proven sexual intercourse without

consent from statements made regarding

oral sex. I made a determination that I

did not want to do that. I don't want to

make an argument to the jury that oral

sex can amount to rape. There was also

some misunderstanding as ... to whether

or not there was sexual intercourse or

not as has been alluded to earlier;

therefore, I made a decision. -

The

victims did not make a decision. I made

a decision to amend the charges to reduce

......................... a trial tactic:

to sexual assault a s

Again, [defense] counsel will have the

opportunity to cross-examine all of our

witnesses on a n y-------------------

prior i n c o n s i s t e n t

statements t h e ~mav or mav not have made.

.............................. y t o

He will have a n opportunit

.............................. t h a t

cross-examine the officer

--------------------- e r e g a r d i n e

investigated this c a s ---------.-

statements made in his r e ~ o r treaardina

whether there was sexual intercourse or

not; therefore, counsel will have more

& .

than a m ~ l eo~nortunitv to deal with the

issues involved, and <

would a s k that the

jury not be informed to the fact that for

trial. tactic reasons this case has been

amended." Tr. at 27-28 (emphasis added).

After hearing arguments by defense counsel, the court

granted the state's motion, although it indicated that it

would take judicial notice of the amendments.

Defendant reasons that, once the amendments were

judicially noticed, any evidence behind their having been

made should have been placed before the jury for

consideration. As a general proposition, defendant's

argument is meritless. The trial court took notice of the

amendments only for the purpose of ruling on the motion in

limine, not for future evidentiary considerations. Judicial

notice is always confined to those matters which are

relevant to the issues at hand. See, e.g., Gbur v. Cohen

(1979), 93 Cal.App.3rd 296, 301, 155 Ca1.Rptr. 507, 510.

The trial court made it clear that judicial notice of the

amendments was not intended to place evidence of their

existence before the jury. The court's ruling was

ultimately predicated on its belief that, under Rule 401,

Mont .R.Evid., evidence of the amendments was not probative

of the veracity of prosecution witnesses. It must be

emphasized that defense counsel was given the opportunity to

cross-examine the complaining witnesses during trial

concerning their veracity. And, during closing arguments,

defense counsel pointed out what he maintained were

inconsistencies in witness testimony. We find no error in

the trial court's decision to grant the motion in limine

concerning the amendments to the original information.

WHETHER THE DISTRICT COURT ERRED BY PERMITTING TESTIMONY BY

-

-PROSECUTION WITNESS CONCERNING PRIOR STATEMENTS B Y A

A - -------------------

COMPLAINING WITNESS?

At issue is the testimony of prosecution witness Mary

Peterson, a social worker. During the direct examination of

Peterson, defense counsel objected to a line of inquiry

about statements R. F. had made to Peterson about the nature

of the sexual assaults. The inquiry was in connection to

remarks made by R. F., whose testimony on cross-examination

was allegedly unclear about the occurance of sexual

assaults. Defense counsel objected to any remarks by

Peterson as inadmissible hearsay. The State argued that

Peterson's testimony would be admissible under Rule

801(d)(l), Mont.R.Evid., which essentially removes from the

concept of hearsay prior consistent or inconsistent

statements. Over continuing objection, the trial court

specifically permitted Peterson to testify under Rule

801(d)(l)(B) as to prior consistent statements, because the

examination of R. F. had "at least raised the specter of

impeachment sufficiently to permit this sort of confirmation

by another witness."

Defendant's argument is that Peterson's remarks about

R. F.'s previous statements contradicted R.. F.'s trial

testimony, thus making the remarks prior inconsistent, as

opposed to prior consistent, statements. As such, defendant

maintains that the statements should have been excluded.

Defendant's position is based on the assertion that

Peterson's recitation of R. F.'s experiences differed

markedly from the descriptions offered by R. F. herself. By

admitting the much more graphic statements of Peterson,

defendant concludes that he was unduly prejudiced in the

minds of jurors.

Whether there exists any significant difference

between the substance of Peterson's testimony about R. F.'s

initial statements to her and R. F.'s later testimony is

immaterial with respect to the issue of admissibility.

Regardless of the trial court's references to subsection

(d)(l)(B) of Rule 801, prior inconsistent statements are

admissible under Rule 801(d)(l)(A) whether or not the

declarant has been impeached by either side in the case.

See, e.g., State v. Fitzpatrick (1980), 186 Mont. 187,

195-96, 606 P.2d 1343, 1348. Although defense counsel did

make a continuing general objection to Peterson's testimony

prior to her recitation of R. F.'s earlier statements, the

law generally requires more specific objections to be made

to portions of the testimony deemed inappropriate; broad,

general objections do not suffice. See, e.g., State v.

Britt (1977), 291 N.C. 528, 231 S.E.2d 644, 650. Defense

counsel made no specific objections to any portion of

Peterson's testimony regarding the use of prior

inconsistent, as opposed to prior consistent, statements.

Furthermore, after carefully comparing the statements

made by R. F. and Peterson, we conclude that any technical

inconsistencies are minimal and irrelevant. The statements

are practically consistent with each other. All three

incidents described depict sexual misconduct involving the

same people in the same places. The only likely

inconsistency, which involves the differing descriptions of

the first incident of assault, is not crucial to the

conviction. Whether R. F. merely danced nude on defendant's

bed while he lay naked under the covers or whether he

actually masturbated on her body was non-prejudicial,

because the inconsistency could only serve to impeach either

R. F. or Peterson. The other sexual assaults involving R.F.

were established, so the legal effect of excluding evidence

of the first incident would not warrant reversal of

defendant's convictions on the other incidents.

WHETHER T H E DISTRICT COURT ERRED IN REFUSING TO PERMIT

....................

DEFENDANT'S REQUEST TO EXAMINE A PARTICULAR WITNESS AS A

HOSTILE OR ADVERSE WITNESS?

M., defendant's stepdaughter, was one of the victims,

but was not called as a prosecution witness, even though she

had been listed as one in the final information. The

defense called her as a witness in its case-in-chief, and

requested that she be examined as a hostile witness under

Rule 6ll(c), Mont.R.Evid., solely on grounds that she had

been listed as a prosecution witness. The State objected,

and the motion was denied until such time as M. 's testimony

during cross-examination actually reflected hostility toward

defendant. M. proceeded to testify, denying any sexual

improprieties involving her and her friends with defendant

and denying statements made to social worker Mary Peterson

about these improprieties.

The question of whether a witness is adverse under

Rule 611(c) is addressed to the sound discretion of the

trial court. Jojola v. Baldridge Lumber Co. (Ct.App. 1981),

96 N.M. 761, 635 P.2d 316, 318 (interpreting Rule 611(c),

N.M.R.Evid., which is identical to the Montana rule). This

is consistent with pre-Rules of Evidence case law in

EJIontana. See, e.g., State v. Collette (1946), 118 Mont.

473, 477, 167 P . 2 d 584, 586. Here, the trial court was not

unwilling to let defense counsel proceed under Rule 611 once

actual hostility was established. In light of M.'s

testimony absolving defendant, the "on-paper" significance

of M. initially being identified as a prosecution witness is

irrelevant.

WHETHER .............................................

T H E DISTRICT COURT ERRED IN T H E ADMISSION OF

REBUTTAL TESTIMONY CONCERNING "PRIOR WRONGFUL ACTS" BY THE

DEFENDANT?

At issue is the testimony of D. H., a young girl who

supposedly had slept in defendant's bed while defendant was

both present and naked. The event allegedly took place some

time before the incidents involved in the instant case,

while D. H. was visiting M. The State had given notice

under State v. Just (1979), 184 Mont. 262, 602 P.2d 957,

that it intended to introduce such evidence to show

"opportunity, intent, plan, knowledge, [and/or] absence of

mistake or accident." However, the State did not produce D.

H. as a witness during the case-in-chief. Instead, she was

produced as a rebuttal witness, and was permitted by the

court to testify over objection as to the incident in

defendant's bed.

Defendant renews two arguments advanced during trial:

first, that the admission of the rebuttal testimony is

controlled by the substantive requirements outlined in Just

for admissibility of "other crimes" evidence; and second,

that the testimony does not meet any of the requirements.

Rule 404(a)(l), Mont.R.Evid., permits the accused to

offer evidence of his good character to support an inference

that he did not commit the crime, and allows the prosecution

to rebut the same with contrary evidence. In the instant

case, the defendant testified on his own behalf, claiming

that he had never engaged in improper sexual activity with

his stepdaughter, the other victims, or anyone else.

Defendant's wife also testified on his behalf, describing

his sexual mores as orthodox, and that the charges against

him did not comport with her knowledge of him. Defendant's

step-daughter denied the existence of the assaults and the

alleged incident with D. H. Other witnesses also testified

as to defendant's good character. The major aim of

defendant's case, as revealed by the testimony of defendant

and his witnesses, was the establishment of defendant's

reputation for morality and personal truthfulness--conduct

and beliefs inconsistent with the charges filed against him.

Under the circumstances, the State was entitled to rebut

what it believed were false claims. The only rebuttal

witness to testify about these matters was D. H. The fact

that the prosecuting attorneys reserved her testimony until

rebuttal, rather than present it during the State's

case-in-chief, is of no legal consequence. The Just

substantive requirements for admissibility of "other crimes

or acts" evidence do not apply to rebuttal evidence offered

under Rule 404(a) (1). We therefore need not determine

whether the essence of D. H.'s testimony meets these

requirements.

WHETHER THE DISTRICT COURT ERRED IN DENYING DEFENDANT'S

M O T I O N F O R A N E W T R I A L ON G R O U N D S O F ALLEGED J U R O R

..................................................

MISCONDUCT AND INSUFFICIENT CREDIBLE EVIDENCE TO CONVICT THE

DEFENDANT?

1. Jury Misconduct

After trial, defense counsel procured an affidavit

from one of the jurors, Lucy Lamping, stating that she

believed the defendant was innocent, and that the guilty

verdicts were the result of pressure brought to bear on her

and other jurors because of the late morning-early hour

deliberations and a belief by some jurors that if a new

trial was ordered (presumably because of a hung jury),

defendant would eventually be convicted anyway. Defendant

reasons that Rule 606(b), Mont.R.Evid. permits introduction

of the Lamping affidavit because the assumption that

defendant would receive a new trial was the kind of improper

outside information frowned upon under the Rule, and because

the pressures of late night-early morning deliberations were

clearly prejudicial.

Defendant freely concedes that Rule 606 generally

prohibits inquiry into the validity of jury verdicts through

admission of juror affidavits or testimony concerning "any

matter or statement occurring during the course of the

jury's deliberations or ... the effect of any thing upon

his or any other juror's mind or emotions as influencing him

to assent or dissent from the verdict or indictment or

concerning his mental processes in connection therewith."

We find that neither allegation contained in the Lamping

affidavit may serve as a basis for inquiry into the jury's

verdicts under any of the exceptions to Rule 606(b).

Recently, in State v. Elaxwell (Mont. 1982), 647 P.2d

348, 39 St.Rep. 1149, this Court emphasized that Rule 606(b)

is designed to insure the right to have a jury deliberation

in camera, free from 'frivolous and recurrent invasions of

that privacy by disappointed litigants . . . [and that]

[tlhe exceptions stated in [Rule 6061 . . . are exclusive

and are narrowly construed." 649 P.2d at 353, 39 St.Rep. at

1154 (emphasis added). Here, there are no allegations that

the alleged argument during jury deliberations about a "new

trial" and expedient verdicts were the result of outside

influence or pressure brought on the jury, such that

Subsection (b)(2) of Rule 606 would come into play and

permit introduction and consideration of the affidavit.

Moreover, the effect of lengthy deliberations on a juror's

physical, mental, or emotional condition and the subsequent

effect these conditions may have on the individual juror's

vote are, for the purpose of challenging the verdict, within

the general prohibition of Rule 606(b). See Maxwell, supra,

647 P.2d at 353, 39 St.Rep. at 1154, citing Mueller, Juror's

Impeachment of Verdicts and Indictments in Federal Court

Under Rule 606(b), 57 Neb.L.Rev. 920 (1978).

Given that the allegations contained in the Lamping

affidavit really go to internal deliberations involving no

outside pressure, Montana law does not support defendant's

motion for a new trial on grounds of jury misconduct. The

trial judge did not err in refusing to accept and consider

the af f idavi t. Indeed, the trial judge was quite

considerate of the jury's well-being as well as the

defendant's interests. According to the Minute Entries of

the District Court's file on the case, at 2:25 a.m. on June

17, 1983, the jury foreman advised the District Judge and

the parties of the jury's desire to continue deliberations.

No objections to continuation were voiced by any of the

jurors at that time. Later, upon delivery of the verdict,

the jury foreman indicated to the trial judge that there

were no dissenters to the verdicts.

2. Sufficiency of the Evidence

Defendant's argument here is that the existence of

inconsistencies in the testimony of complaining witnesses

makes the evidence supporting conviction both insufficient

and incredible. Without question, great weight had to have

been placed on credibility of the witnesses. Nevertheless,

upon examining the record, including the testimony of

complaining witnesses, we find that the jury's determination

that defendant was guilty as charged is supportable.

The standard of review is whether the jury's verdict

is supported by substantial evidence. State v. Greenwell

(Mont. 1983), 670 P.2d 79, 82, 40 St.Rep. 1616, 1621. With

respect to the crucial matter of witness credibility,

" [tlhe jury is the sole judge . . .

[I]nconsistencies [in witness testimony]

do not make [the] testimony inherently

incredible. 'Only in those rare cases

where the story told is so inherently

improbable or so nullified by internal

self-contradictions that no fair-minded

person could believe it may we say that

no firm foundation exists for the verdict

based on it.'" Maxwell, supra, 647 P.2d

at 351, 39 St.Rep. at 1152 (citations

omitted).

A review of R. F.'s testimony does reveal some

difficulty in describing the nature of the assaults.

Nevertheless, this testimony does describe in fairly certain

terms two incidents of sexual assault, and a review of the

entire record indicates that these descriptions held up

under cross-examination. Defendant does not quote from

L.M.'s testimony, but maintains that it came about through

"heavily leading questions." Defense counsel maintains that

he objected to this line of testimony, but there is no

indication in the record that he did so. Moreover, the

testimony contains evidence that a sexual assault took

place. Finally, although M.'s testimony tends to vindicate

defendant, the testimony from Mary Peterson about M.'s prior

statements to her tends to establish that assaults were

committed .

Although defendant does not go beyond the testimony of

the three girls, the jury did hear important testimony from

other witnesses, and was entitled to consider and weigh this

testimony in conjunction with that of the complaining

witnesses:

(1) Dr. Elizabeth Gunderson, a defense witness,

informed the jury that, in her opinion, even though there

was no evidence of penetration of R. F., she believed that

the child had experienced sexual molestation. The

descriptions made by R. F. to Gunderson of the events

surrounding the molestation closely match the descriptions

given by R. F. during her testimony.

(2) Detectives Sam McCormack and Richard Hammerbacker

testified to remarks made by defendant during their only

interrogation of him. (Defendant was properly informed of

his Miranda rights and voluntarily signed a waiver.) The

remarks could have been construed as confessions by the

defendant:

"Q. [By Ms. Clemens] After he denied

having sexual intercourse, did you ask

any further questions?

"A. [McCormack] He said that all he did

was played around with them with the use

of some vaseline, and I again asked him

if he attempted to have sexual

intercourse with them, and he said,

'Well, yes, but - - I and at that time

stopped talking and asked for an

attorney.

" 9 . [By Mr. McGrath] Could you tell the

jury in your own words what happened

[when you interrogated the defendant?]

"A. [Hammerbacker ] At this time

Detective McCormack, who is my partner,

advised Roger Anderson of his rights per

the Miranda decision and had him sign a

waiver of these rights. He, Detective

McCormack then asked Roger Anderson if he

had ever had sexual intercourse with any

of the young girls, and I was standing

behind Roger Anderson, and I heard him

answer Detective McCormack, he said, 'No.

I did fool around,' or 'We did fool

around with some vaseline. '

"And then Detective McCormack asked him

if he had ever attempted sexual

intercourse, and Roger Anderson answered,

'Yes, but --I I recall that 'but,' and

then he said, '1'11 get an attorney and

get back to you.'" (Tr. 2 5 3 )

Neither statement was objected to by defense counsel,

although counsel did attempt to adduce testimony from the

officers in an attempt to challenge their interpretation of

defendant's remarks;

(3) Alice Morse, a social worker who works with

sexually abused children, testified about the possibility

that molested children may often deny that they have been

victimized by their parents, for fear of losing the security

of home life and love of the accused parent. Thus, the jury

could have believed that defendant's stepdaughter had

changed her story only out of love and respect for the

defendant.

(4) Penny Say, the restitution officer involved in

R. F.'s previous problem with juvenile authorities,

indicated that she likely had no motive to punish defendant

for his role in bringing her to Say and other authorities

for her previous offenses.

In conclusion, the evidence, when considered in its

entirety, is both sufficient in quantity and quality to

sustain the jury's verdicts.

WHETHER THE DISTRICT COURT ERRED IN REFUSING TO GIVE THE

SMITH JURY INSTRUCTION, WHICH PROVIDES THAT ALLEGATIONS OF

SEXUAL CRIMES ARE "EASILY MADE BUT DIFFICULT TO REFUTE?"

-

Defendant wanted the jury to be instructed that "the

charge of sexual assault is easily made and difficult to

refute." This is a variant of the cautionary instruction

determined by this Court in State v. Smith (1980), 609 P.2d

696, 37 St.Rep. 583, to be mandatory when victim animus

toward defendant is shown - where there is an absence of

and

critical testimony corroborating the charges. The trial

court refused to give the instruction.

We note initially that Smith has recently been

overruled on grounds that cautionary instructions like the

one requested in the immediate case are an improper comment

on the evidence and are not required by law or public

policy. See State v. Liddell, No. 83-276. Nevertheless,

even if we assume that Smith-type instructions were lawful

at the time of trial, the court did not err by refusing to

give one in the instant case.

Our past decisions emphasize that Smith-type

instructions were proper only in exceptional circumstances.

Victim animus, for example, had to be demonstrated by proof

of malice or vengeance on the part of the victim. See

Smith, supra. See also State v. Mackie (Mont. 1981), 622

P.2d 673, 676, 38 St.Rep. 86, 91, an opinion authored by the

trial judge presiding in the immediate case. M.'s testimony

tended to vindicate defendant. R. F.'s and L. M. Is

testimony was obviously damaging, but the trial court found

no evidence in their statements of "manifest malice or

motive for revenge," Mackie, supra, 622 P.2d at 676, 38

St.Rep. at 91. Moreover, any retaliatory motive on R. F 1 s

part appears to be a "strawman," primarily because the

criminal investigation leading up to the charges began

through L. M.'s mother's independent questioning of her

daugher .

Insofar as the presence of corroborative evidence is

concerned, the jury heard the testimony of the detectives

regarding defendant's "confession." His references to the

use of vaseline, for example, are corrobarative of at least

one aspect of the victims1 testimony regarding the nature of

the sexual assaults. In any event, the giving of the Smith

instruction required proof of both victim animus - lack of

and

corroborative testimony. Under the circumstances, the trial

court acted properly in denying the instruction.

The conviction is affirmed.

We concur:

Chief Justice

~:,&J

Mr. Justice Frank B. Morrison, Jr. dissents as follows:

There are several close evidentiary questions in this

case. The trial court gave careful attention to the

arguments of counsel and where at all possible I believe this

Court should defer to the discretion of the trial court when

discretion can be legitimately engaged.

I must dissent with respect to one evidentiary ruling

which was clearly erroneous. R.F.'s charge against Bratcher

was dismissed and I do agree with the majority opinion that

such dismissal, standing by itself, does not show the charges

were demonstrably false. I also agree that the charges may

have been dismissed. at the insistence of complainant's mother

because the mother did not want R.F. to experience the trauma

of trial. Again, this does not show the charges were false.

The majority opinion then goes on to gloss over the

critical issue with respect to the admissibility of R.F.'s

charges against Bratcher. The majority states:

"Similarly, the existence of medical testimony in

the instant case that R.F. had never experienced

intercourse does not prove the falsity of the prior

charges. Bratcher had been charged with sexual

assault, not sexual intercourse without consent,

and R.F. 's equivocal statements about what she had

experienced are not probative of the truth or

falsity of the charge against Bratcher."

This statement may seem innocuous when read casually.

However, the statement is misleading because R.F.'s charges

against Bratcher were not equivocal statements. Additionally,

the majority opinion fails to specifically address the real

issue because defendant's position cannot be persuasively

answered.

The facts here are simple. R. F ., the complainant

zgainst Roger Anderson, had previously charged one Bratcher

with sexual assault. Her complaint against Bratcher stated

that Bratcher had engaged her in numerous acts of sexual

intercourse. The medical testimony established that R.F. had

never had sexual intercourse. Defendant sought to introduce

the false charges R.F. made against Bratcher to demonstrate

that R.F. was lacking in credibility. The evidence would

have prejudiced R.F. but was so probative on the issue of

R.F.'s credibility that the trial court clearly committed

error in denying admission of the evidence.

The majority, without ever telling us what charges R.F.

made against Bratcher, simply pa.sses them off as "equivocal

statements." In all fairness I must set forth at least one

of these "equivocal statements" as illustrative to show that

R.F.'s previous charges against Bratcher were demonstrably

false and were admissible in the trial of Roger Anderson. In

chambers, during argument on the admissibility of this

evidence, defense counsel presented to the trial court the

following excerpt from R.F.'s statement against Bratcher. She

was being interrogated by law enforcement. She was asked:

"Let's go back to this apartment by your

grandmother's now. When he asked you to go into

the apartment, exactly what happened the ,-ast

time?"

R.F. responded:

"We got on and he stuck his thing in me."

The medical evidence clearly showed R.F. was previously

chaste. Her charge against Bratcher was demonstrably false.

The evidence should have been admitted to impeach her

credibility.

I do not feel that any one justice always knows the

right answer. In fact, most of the questions presented to

this Court are close questions which do not compel a certain

resolution. Although a dissenting justice may feel strongly

the majority has gone astray, judicial lectures not necessary

to issue resolution are inappropriate and should be avoided.

Having filed this judicial caveat, I feel compelled here

to disregard my own admonition. The majority of this Court

has become far too "result oriented" in deciding criminal

cases. Significant evidentiary and constitutional errors are

avoided as the majority expeditiously moves to affirm the

conviction. State v. McKenzie (1981) 38 St.Rep. 1745; State

v. Arrow Weinberger (1983) 40 St.Rep. 844; State v. Gratzer

(1984) 41 St.Rep. 727; State v. Sigler (1984) St.Rep.

I do not believe the majority is pandering to the

editors and commentators who believe the courts are

hypertechnical, or to the majority's "law and order"

constituency. Rather I believe my brothers who avoid pivotal

issue confrontation do so because of a subconscious desire to

see the "guilty" pay for their misdeeds. The temptation to

so yield is, at times, almost irresistible. However, as

justices sworn to uphold the Constitution and the laws of

this State, we cannot afford the luxury of indulging our

sense of justice. Justice is for juries. Our role is to see

that the law is properly applied. The present inclination to

do justice arises from a sense of judicial divinity and the

result is to elevate seven philosopher kings to a position

above the law.

Members of our Court have, by way of dissent, been

termed "intellectually dishonest." I find that expression

inappropriate to adequately impart the intensity of my

opposition to what seems a clear abrogation of judicial

responsibility. Even though the majority has undoubtedly

acted in good faith, failure to fully and accurately present

the record and discuss the legal issues is, in my opinion, in

derogation of the constitutional responsibilities of this

office.

Mr. Justice John C. Sheehy, dissenting:

I dissent on at least two grounds.

First, I do not agree that the District Court properly

excluded evidence of the changing theories of the crime

committed, as shown by the amendments to the i~formation.

This conviction depend.ed on the credibility of the State's

witnesses. The amendments tend to show the inconsistency of

the facts being reported to the State by these witnesses. If

the variance in the reports being given to the State by the

witnesses are of such gravity that the State must withdraw

some criminal charges and insert others in their place, the

jury in its search for truth should be allowed to know that.

Second, I want to disagree with the majority handling of

the Smith instruction, although I agree the instruction was

not appropriate in this case. The majority, though, relies

on State v. Liddel-I (No. 83-276, Montana Supreme Court,

decided July 10, 1984), for the proposition that the Smith

instruction is improper. The Smith instruction was not

raised as an issue by the defendant in Liddell; this Court

gratuitously undertook to wipe it out. Here the principle of

Smith does not apply. There is no victim malice involved and

there is corroborative testimony.

Justice

r4r.Justice Daniel J. Shea dissents and will file a written

dissent later.