State v. Liddell

No. 83-276

IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTAIJA,

Plaintiff and Respondent,

-vs-

JAMES P. LIDDELL, JR.,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Diane G. Barz, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

W. Corbin Howard argued, Billings, Montana

For Respondent:

Ilon. Mike Greely, Attorney General, Helena, Montana

Jim Scheier, Asst. Atty. General, Helena, Montana

Harold Hanser, County Attorney, Billings, Montana

Charles A. Bradley argued, Deputy County Attorney,

Billings, Montana

Submitted: February 27, 1984

Decided : July 10, 1984

Filed:

--

Clerk

Mr. Chief J u s t i c e Frank I . Haswell d e l i v e r e d t h e Opinion of

t h e Court.

Defendant James L i d d e l l was c o n v i c t e d o f 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 f o l l o w i n g a j u r y t r i a l i-n t h e D i s t r i c t

C o u r t of Yell-owstone County. H e appeals from t h e judgment

entered therein. W e affirm.

Liddell claims that he and t h e v i c t i m had been ac-

q u a i n t e d f o r some t i m e . H e maintains t h a t p r i o r t o t h e n i g h t

i n q u e s t i o n s h e had a c c e p t e d l o n g d i s t a n c e c o l l e c t c a l l s from

him and had a g r e e d t o l e t him s t a y w i t h h e r t h e n i g h t o f t h e

incident. L i d d e l l a l s o s t a t e s t h a t he and t h e v i c t i m had

s e x u a l i n t e r c o u r s e on a p r i o r o c c a s i o n and t h a t s h e c o n s e n t e d

a g a i n t o s e x u a l i n t e r c o u r s e on t h e n i g h t i n q u e s t i o n . He

c l a i m s s h e l a t e r a c c u s e d him of r a p e o n l y b e c a u s e h e i n d i c a t -

e d he was n o t g o i n g t o l e a v e h i s g i r l f r i e n d f o r h e r .

The victim maintains that she was acquainted with

L i d d e l l b u t had n e v e r had s e x u a l i n t e r c o u r s e w i t h him p r i o r

t o t h e night i n question.

When L i d d e l l c a l l e d h e r p r i o r t o r e t u r n i n g t o B i l l i n g s

f o r a d o c t o r ' s a p p o i n t m e n t , s h e s t a t e d t h a t s h e i n v i t e d him

t o h e r home f o r t h e p u r p o s e of a s k i n g him i n p e r s o n t o l e a v e

her alone. She m a i n t a i n e d t h a t on p r e v i o u s o c c a s i o n s he had

e x p r e s s e d a n i n t e r e s t i n g e t t i n g t o know h e r and t h a t s h e was

not interested.

Subsequent to the telephone call, but prior to

L i d d e l l ' s a r r i v a l , t h e v i c t i m ' s empl-oyer spoke w i t h h e r and

s h e t o l d him what s h e p l a n n e d . He i n d i c a t e d t h a t p e r h a p s it

was n o t such a good i d e a t o have i n v i t e d L i d d e l l o v e r and

recommended t h a t s h e e i t h e r l e a v e o r p r e t e n d n o t t o b e a t

home. The v i c t i m followed h e r e m p l o y e r ' s a d v i c e and p r e t e n d -

ed not to be at home. However, Liddell called out that he

knew she was inside so she let him in.

She maintains that she and Liddell talked for some time

and that he attempted to kiss and hold her. She reminded him

that he had a girlfriend and asked him t o leave.

. Liddell

eventually became angry, pulled her into the bedroom and

raped her.

I

Liddell raises the following specifications of error:

1. Refusal to instruct the jury to consider the testi-

mony of the victim with caution;

2. Admitting evidence regarding the mental state of

the victim;

3. Permitting Marjene Tower to express her opinion

that the victim had been raped;

4. Improperly limiting cross-examination of the prose-

cution witnesses;

5. Permitting the prosecution to endorse an additional

expert witness on the day of trial;

6. Refusing to compel the prosecution to permit the

victim to he examined by a defense expert; and,

7. Permitting the prosecution to introduce evidence of

other crimes, wrongs or acts.

I1

The first specification of error is whether the Court

should have instructed the jury to examine the testimony of

the victim with caution.

Liddell's counsel offered, and the court refused, the

following instruction:

"You are instructed that a charge such as

that made against the Defendant in this

case is one which is easily made, and

once made, difficult to defend against,

even if the person accused is innocent.

Therefore, the law requires that you

examine the testimony of the female

person named in the information with

caution. "

The State offered the following instruction which wa.s

given :

"You are instructed that the charge of

Sexual Intercourse Without Consent (Felo-

ny) is easy to make, difficult to prove

and more difficult to disprove, and in

considering a case of this kind, it is

the duty of the jury to carefully and

deliberately consider, compare, and weigh

all testimony, facts, and circumstances

bearing on the act complained of, and the

utmost care, intelligence, and freedom

from bias should be exercised. by the jury

in its consideration thereof."

Appellant maintains that the State's instruction was

inadequate because it instructed the jury to carefully con-

sider all testimony as opposed to his proposed. instruction

which required special examination of only the victim's

testimony.

Liddell contends that under the holding of State v.

Smith (Mont. 1980) , 609 P.2d 696, 37 St.Rep. 583, a court is

required. to give the cautionary instruction that the charge

is easily made and difficult to defend against when "[tlhe

evidence clearly meets the standard of private malice, desire

for revenge and absence of corroboration on the critical

matters of consent . . ."

The instruction offered by the defense in Smith, but

refused by the court, is as follows:

"You are instructed that in considering

the evidence herein you should consider

that the crime of sexual intercourse

without consent is one that is easy to

charge and difficult to refute."

The instruction given to the jury by the court. in Smith

stated:

"While it is true that a conviction of

rape depends upon the credibility of the

primary witnesses, the accuser and the

accused, a conviction of sexual inter-

course without consent may be had based

solely on the uncorroborated testimony of

the prosecutrix."

This Court held it was reversible error not to give the

cautionary instruction that rape is easy to charge and diffi-

cult to refute under the circumstances described in Smith.

609 P.2d at 699. There is no holding in Smith that the jury

should also be instructed to vi.ew the testimony of the victim

alone with ca-ution.

Section 26-1-303, MCA, deals with instructions to

juries on how to evaluate evidence. It states, in part, as

follows:

". .

. The jury is to be instructed by

the court on all proper occasions that:

" (1) their power of judging the effect

of evidence is not arbitrary but to be

exercised with legal discretion and in

subordina.tion to the rules of evid-ence;

" (2) they are not bound to decide in

conformity with the declarations of any

number of witnesses which do not produce

conviction in their minds, against a less

number or against a presumption or other

evidence satisfying their minds;

"(3) a witness false in one part of his

testimony is to be distrusted in others;

" ( 4 ) the testimony of a person legally

accountable for the acts of the accused

ought to be viewed with di.strust;

"(5) if weaker and less satisfactory

evidence is offered and it appears that

it is within the power of the party to

offer stronger and more satisfactory

evidence, the evidence offered should. be

viewed with distrust."

There i s no p r o v i s i o n which s t a t e s t h a t t h e t e s t i m o n y

of a r a p e v i c t i m s h o u l d be viewed w i t h c a u t i o n n o r i s t h e r e

provision for the s t a t e m e n t t h a t t h e c h a r g e i s one e a s i l y

made and d i f f i c u l t t o d e f e n d a g a i n s t . I n t h i s c a s e , defen-

d a n t t e s t i f i e d t h a t t h e a c t was c o n s e n s u a l b u t when h e r e -

fused t o l e a v e h i s g i r l f r i e n d f o r h e r , t h e v i c t i m g o t angry.

The i m p l i c a t i o n i s t h a t s h e was m o t i v a t e d by m a l i c e t o a l l e g e

a f a l s e charge.

The v i c t i m t o l d a d i f f e r e n t s t o r y . Experts w e r e c a l l e d

and t e s t i f i e d a s t o t h e i r o p i n i o n s . The c h a r g e was f u l l y

e x p l o r e d by t h e p r o s e c u t o r and d e f e n s e c o u n s e l , and t h e c a s e

was submitted to the jury. A cautionary i n s t r u c t i o n was

given b u t n o t t h e s p e c i f i c cautionary i n s t r u c t i o n requested

by t h e d e f e n d a n t . W e f i n d t h a t both t h e i n s t r u c t i o n offered

b u t r e f u s e d and t h e one g i v e n were i n e r r o r . To s t a t e i n a

j u r y i n s t r u c t i o n t h a t t h e c h a r g e i s e a s i l y made b u t d i f f i c u l t

to defend against is a comment on the e v i d e n c e which is

required. neither by law nor public policy and therefore

improper. I n a d d i t i o n , i t would have f u r t h e r compounded t h e

e r r o r f o r t h e c o u r t t o have f u r t h e r i n s t r u c t e d t h e j u r y t h a t

t h e t e s t i m o n y of t h e v i c t i m s h o u l d h e c o n s i d e r e d w i t h more

c a u t i o n t h a n any o t h e r w i t n e s s . However, t h i s t h e D i s t r i c t

C o u r t r e f u s e d t o do.

While t h e c o u r t d i d i m p r o p e r l y i n s t r u c t t h e j u r y t h a t

t h e c h a r g e was e a s i l y made and d i f f i c u l t t o defend a g a i n s t ,

t h e e r r o r was p r e j u d i c i a l t o t h e S t a t e and n o t t o t h e d e f e n -

dant. T h e r e f o r e , we f i n d no r e a s o n t o d i s t u r b t h e v e r d i c t

based on t h i s s p e c i f i c a t i o n of e r r o r , and w e hereby s p e c i f i -

c a l l y o v e r r u l e S t a t e v. Smith, s u p r a . W e h o l d t h a t a cau-

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

t o d e f e n d a g a i n s t , o r one c a l l i n g f o r i n s t r u c t i n g t h e j u r y t o

view the victim's testimony with caution is an improper and

unwarranted comment on the evidence and is not required under

the law or by reason of public policy. Therefore, such an

instruction should not be given.

I11

The second specification of error is whether the Dis-

trict Court erred in admitting evidence regarding the mental

state of the victim. This is closely related to the third

specification of error as to whether Mariene Tower, a psychi-

atric nurse, should have been permitted to testify that the

disabilities suffered by the victim, including acute depres-

sion and severe headaches requiring hospitalization, were

caused by the rape.

Defense counsel argues that such testimony was improper

because such opinion testimony was not a proper subject for

expert testimony under Rule 702, Mont.R.Evid.; the factual

and opinion testimony was highly prejud.icia1 to the defen-

dant; the testimony caused confusion and misled the jury; the

evidence was not a proper subject for expert opinion; and

Tower was not qualified to render an opinion as to Liddell's

state of mind.

The victim, Dr. Van Dyk, Cheri Frankel, a psychological

counselor, and Marjene Tower, a psychiatric nurse, all testi-

fied that the victim suffered from severe headaches which

required hospitalization. There was further testimony that

rape caused this post-traumatic stress syndrome in the

victim.

Defense counsel argues that evidence regarding

rape-trauma syndrome is not admissible because it is evidence

regarding the mental state of the victim. Defense argues

that the Minnesota courts do not allow evidence of

rape-trauma syndrome and Montana also should not allow such

testimony. The State, however, argues that Minnesota is the

only state that has ruled on the admissi-on of ra.pe-trauma

syndrome and not allowed it. A number of jurisdictions have

permitted such testimony including Kansas (State v. Marks

(Kan. 1982), 647 P.2d 1292), Iowa (State v. Miller (19621,

254 Iowa 545, 117 M.W.2d 447), Michigan (People v. LaPorte

. a

%

(1981), 103 Mich. App. 444, 303 N.W.2d ,

W ) and Washington

(State v. Ring (1959), 54 Wash.2d 250, 339 P.2d 461).

A particularly good discussion of rape-trauma syndrome

is found in the Kansas case, State v. Marks, supra. In that

case the court held:

"The identification of rape trauma syn-

drome is a relatively new psychiatric

development. Even so, if the presence cf

rape trauma syndrome is detectable and

reliable as evidence that a forcible

assault did take place, it is relevant

when a defendant argues the vj-ctim con-

sented to sexual intercourse. As such an

expert's opinion does not invade the

province of the jury. It is merely

offered as any other evidence, with the

expert subiect to cross-examination and

the jury left to determine its weight."

State v. Marks, 647 P.2d at 1299.

We agree with the holding of the Kansas court.

Pyschiatric testimony is admissible to aid a jury in deter-

mining whether there was consent to engage in a sexual act

which all parties agree occurred. It remains up to the jury

to determine whether the evidence is credible.

Such evidence is admissible under Rule 702,

Mont. R. Evid. That rule states, " [i]f scientific, technical,

or other specialized knowledge will assist the trier of fact

to understand the evidence - - determine - - -

or to a fact in issue, a

witness qualified as an expert by knowledge, skill,

experience, training, or education may testify thereto in the

form of an opinion or otherwise." (Emphasis added.) In this

case the fact in issue is whether there was consent to sexual

intercourse. The evidence of experts regarding the presence

of rape-trauma syndrome may assist the jury in resolving that

question. Therefore, the evidence is admissible.

The testimony is not, as defense counsel maintains,

improper because it is testimony dealing with the mental

state of the victim. The testimony does not purport to show

the victim's mental state at the time of the event. It

reflects the manifestations of distress which may be exhibit-

ed by a person who has been subjected to severe trauma. Rape

is only one such severe trauma which can cause the symptoms.

We believe that skilled direct and cross-examination of an

expert in this area can assist the jury in determining wheth-

er, in fact, the victim consented to the act.

We do not agree with defense counsel that such evidence

confused and misled the jury, nor that such testimony could

potentially confuse and mislead. Any relevant evidence which

tends to support the existence or nonexistence of a fact in

issue can only aid the jury determination, not mislead and

confuse.

There is, however, no doubt, as defense counsel argues,

that the opinion evidence was prejudicial to defendant.

Evidence which supports the State's case generally is. We

cannot require the State to meet its burden of proof and yet

not allow the State to offer evidence which is prejudicial to

the defendant. Such a ruling would both be absurd and also

paralyze the criminal justice system in this state.

Defense counsel also argues that to allow testimony of

the rape-trauma syndrome experienced by the victim was

improper because it in effect allowed testimony of the defen-

dant's state of mind at the time of the a.ct. F e hold tha.t

J

testimony regarding the victim's disabilities is admissible

and does not reflect on the defendant's state of mind.

Given all of the above factors, we find that expert

testimony regarding the post-traumatic stress disorder known

as rape-trauma syndrome is admissible and that the District

Court did not err in allowing such testimony.

IV

The next specification of error deals with the question

of whether the District Court improperly limited cross-exami-

nation of the victim and expert witnesses Ms. Frankel and Dr.

Van Dyke. We find no merit in this argument.

Defense counsel contends that the symptoms suffered by

the victim arose not after the incident but after she was

confronted by a co-worker and questioned. The defense sought

to prove that the incident at work and not the sexual attack

caused her disability. The record is clear that the victim

reported that she suffered from the post-trauma symptoms

before the incident occurred at work. It also shows that the

questioning by the co-worker could have intensified her

condition. But given the testimony that the symptoms were

reported before the incident with the co-worker, that inci-

dent was irrelevant in terms of the cause of the symptoms and

questioning along that line was properly limited. We find,

therefore, that there was no improper limiting of

cross-examination.

v

The next specification of error deals with whether the

District Court erred in a-llowinq the prosecution to endorse

an additional ~rj.tness,Ms. Frankel, on the day of trial.

The record shows Ms. Frankel assisted Dr. Van Dyk in

his treatment of the victim. Dr. Van Dyk was identified to

the defense as a prosecution witness. The defense was aware

of Dr. Van Dyk's need for Ms. Frankel's assistance in treat-

ing the victim due to the lack of rapport between Van Dyk and

the victim. The defense knew of Ms. Frankel's role in coun-

seling the victim and had interviewed her prior to trial. As

expected, Ms. Frankel's testimony dealt with her role jn

.

counseling the victim and the post-trauma stress syndrome

suffered by the victim.

If defense counsel believed that her endorsement left

him inadequately prepared to conduct the defense, he should

have petitioned the court for a continuance. This he failed

to do.

It is discretionary with the District Court to allow

additional witnesses, State v. McKenzie (Mont. 1980), 608

P.2d 428, 37 St.Rep. 325, and under the circumstances we find

no error in endorsing Ms. Frankel as an additional witness on

the day of the trial.

VI

The next specification of error is whether the District

Court erred by refusing to compel the victim to be examined

by defendant's psychologist.

There is no legal authority for such a. procedure. Rule

35(a), M.R.Civ.P., allows for a mental or physical examina-

tion by a physician when the mental or physcial condition of

a party is in controversy. The victim in this matter is a

witness, not a party to this action. The issue in this

matter was whether the sexual intercourse was effected

against her will and without her consent.

The rape-trauma syndrome evidence was admissible as

evidence relevant to the question of whether there had or had

not been intercourse without the victim's consent. The act

was at issue, not the victim's state of mind. Since the

victim was a witness and not a party, and since her state of

mind was not at issue, it was proper for the District Court

to refuse to order her examination by defendant's psycholo-

gist. To hold otherwise would permit the defense to try the

victim of the crime and divert the jury's attention from the

primary issue--the guilt or innocence of the defend-ant.

VII

The final issue is whether the District Court erred in

permitting the prosecution to introduce evidence of other

crimes, wrongs or acts.

The defense maintains that the State's examination

regard-ing Liddell's reason for being in Billings allowed the

State to imply to the jury that defendant is a violent man.

Such is simply not the case. The transcript shows that

Liddell was asked how he received. his wrist injury:

"A. L fell through a plate window.

"a. What precipitated your falling

through a plate window?

"A. This guy jumped on me.

"Q. You were in a fight?

"A. 7: wouldn't call it a fight. Self-

defense.

"Q. Where did this occur?

"A.. Kon's Supermarket. on the south side.

"Q. Did [the victim] know you had re-

ceived this injury in this fashion?

"A. No, she did not."

The testimony hardly creates the impression of a vio-

lent man. It was simply a small portion of the questioning

designed to elicit Liddell's reason for being in Billings on

the night in question. The testi-monywas merely an insignif-

icant portion of the recounting of events and the error, if

any, is harmless.

Defense counsel also maintains that the prosecution

introduced evidence of Liddell smoking half a marijuana

cigarette at the victim's residence shortly prior to the act

charged. Defense maintains this was an impermissible intro-

duction of evidence of other crimes. The State responds that

the victim departed from the established time sequence in her

testimony a.nd "blurted out" the marijuana testimony. This

response is verified by the transcript. Further, the State

did not pursue that topic in depth in direct examination nor

did it attempt to introduce the remains of the marijuana

cigarette recovered from Liddell at the time of arrest. In

add.ition, the District Court gave the following cautionary

instruction:

"You are instructed that the allegation

of marijuana used by the defendant within

the testimony of the prosecutrix has not

been proved and should not be considered

by you in arriving at your decision in

this case."

Under the above circumstances, we find that the evi-

dence of the marijuana cigarette was harmless, and defendant

was not prejudiced by this incidental reference in the vie-

tim's testimony regarding the events of the evening.

3~&a.wq

Chief Jffstice

We concur:

Justices

Mr. Justice Frank B. Morrison, Jr. respectfully dissents as

follows :

Expert testimony regarding "post rape syndrome" is

troublesome. Such testimony seems to be a comment on the

credibility of another witness. If it is to be allowed then

full opportunity must be accorded the defendant to rebut the

testimony. This would necessarily involve permitting a

doctor or other qualified person to examine the alleged

victim and provide the same opportunity for testimony as is

given to the prosecution.

Therefore, I would hold that it was error to deny the

defendant an opportunity for an expert examination of the

alleged victim, with an opportunity to rebut the testimony

Xr. Justice Daniel J. Shea:

I join in the dissent of Mr. Justice Norrison.

Justice John C. Sheehy, concurring and dissenting:

I concur in the result in this case, and with what

Justice Morrison says in his special concurrence, but dissent

from what the majority holds on two issues:

1. The Smith Instruction.

The majority overreaches the issues in summaril-y setting

aside our approval of the instruction in State v. Smith

(1980), - Mont . ,

- 609 P.2d 696. The state is not

appealing the instruction, and the overruling of Smith

disregards possible cases of prosecutrix malice, to which

Smith applied.

2. Cross-examination - - psychiatrist - - nurse.

of the and the

I think the District Court unfairly limited the

cross-examination of the states' psychiatric witness and of

Marjene Tower, the nurse. Post-rape trauma syndrome is far

from scientific exactitude. The majority permits such

evidence on the basis that "skill-ed direct a.nd

cross-examination" will limit the possibilities for error.

Under Rule 705, Montana Rules of Evidence, an expert may be

cross-examined on the basis of his opinion, including

admissible and non-admissible grounds. The District Court

did not permit the kind of full cross-examination that the

post-rape trauma syndrome demanded in this case.

I concur in the result here because the Smith

instruction ruling does not affect Liddell's case on appeal-,

and because I find the jury decided the issue on a test of

credibility between him and the prosecutrix which was not

substantially aided by the testimony of the psychiatrist and

the nurse.

-7