*1 POST PETITION FOR Matter BRODNIAK, Peti RELIEF OF JAMES M. CONVICTION MONTANA, v. STATE OF Appellant, tioner Respondent. No. 88-311.
Submitted June
1989.
Sept.
Decided
JUSTICE WEBER delivered the of the Court. appeals James M. Brodniak from an order of Fourth Judicial Court, County, petition post-con- denying District Missoula his for viction relief. We affirm. phrase
We the issues as follows: Supreme er- apply proper Did the Montana Court during ror Mr. Brodniak’s criminal trial? test its review of analysis applied by the Su- 2. Does Montana preme criminal trial contra- Court review of Mr. Brodniak’s its requirement proven process guilt be be- vene the due clause yond a doubt? law, be be
3. As a
can evidence
found to
matter
purposes
or more members
of harmless error
where one
appellate
is?
not convinced that it
tribunal are
leading to James M.
description
A
of the events
detailed
consent can be
intercourse without
Brodniak’s conviction
sexual
appeal, State
opinion considering
his direct
found
our
Therefore,
we
Brodniak
221 Mont.
In the hours of D.P. six-pack couple purchased a bar with James M. Brodniak. The dormitory parking lot at proceeded beer and to drink and talk while, University trial, At D.P. testified after Montana. Instead, he took her she asked Mr. to take her home. Brodniak doors, grabbed Canyon, car outside of locked the Missoula Pattee hair, engage in her and forced her to sexual acts. *3 hand, Canyon he D.P. to Pattee because
the other testified that took suggested they she could to to go she to a wooded area where that they engaged in sex- He that then consensual bathroom. claimed however, admitted, the end of the incident ual acts. He that toward violent, choking her. pulling he hair and became D.P.’s incident, The by a After D.P. was examined medical doctor. by probably not injuries D.P. were doctor testified that the suffered A nurse at the a result intercourse. common of consensual sexual while D.P. hospital “gross a amount” of hair came out observed that Montana Criminalistic combed her hair. The bureau chief of the in Mr. Brodniak’s Laboratory long that several hairs found testified pulled her from belonged to D.P. and most of hair had been car that painful her head with force. IQan she had psychologist examined D.P. testified that who psychological condi- approximately He that her also testified syn- rape symptoms trauma was with all of the
tion consistent testimony (RTS). per- addition, gave on In he statistical drome he did rape centage of false bases and testified accusations malingering. D.P. not believe that was four-day trial, convicted After a Mr. Brodniak was charge designated sexual intercourse without consent. He was dangerous years offender and sentenced to 20 in the Montana State Prison. Brodniak, opinion
In we we dis affirmed conviction. our admissibility testimony cussed the of RTS al concluded though testimony admissible, generally RTS it was error for expert testify State’s witness to that D.P. was not as his belief malingering percentages statistical of false accusations. We testimony “improper stated that such was comment the cred ibility” Brodniak, of D.P. at P.2d 329. We at held, however, admission such constituted against harmless error because Mr. the State’s evidence overwhelming. Brodniak and his own admissions were Mont. at P.2d at 329. during
We also determined that three committed other errors were trial, conviction, the criminal holding but refused to reverse the each of the prejudice additional errors Mr. Mr. did Brodniak. petition denied, rehearing, summarily Brodniak’s for which was error, based on the doctrine of the issue cumulative not on employed standard determining of review harmless error. January On petition corpus Mr. Brodniak filed a habeas Montana, the United States District Court for the District of Division, Risley, CV-87-29-M, Missoula alleg Brodniak v. cause No. ing Supreme that the applied Montana test Court had an incorrect response, its determination of alleged harmless error. In the State that Mr. Brodniak had he not exhausted state remedies because his presented had not precise question to re the state courts for Consequently, view. U.S. District Court dismissed habeas corpus proceeding prejudice. without petition Brodniak post-conviction then filed a relief with District, County. Fourth hearing, Judicial After a Missoula petition. appealed
District Court denied the Mr. Brodniak to this Court.
I *4 Did the Supreme apply proper Montana Court harmless error during test its review of Mr. Brodniak’s criminal trial?
Mr. Brodniak psychologist’s contends that on D.P.’s comment credibility guaranteed by right violated his trial the Sixth Amendment to argues the Constitution of the United States. He
114 credibility expert regarding a invades that witness’s province amounting to violation. jury, of the a Sixth Amendment error, Mr. Brodniak the federal test of contends test, applied to his convic- rather than the state must therefore be Chapman tion, (1967), v. U.S. 87 S.Ct. citing 386 California 826-827, 824, 705, 709. L.Ed.2d (8th 1986), States v. Azure Brodniak cites United Cir. 336, right support
F.2d
his contention that his Sixth Amendment
Azure Eighth
Circuit held
was violated. It is true that in
minor,
involving
pediatrician’s
com
against
a trial
a sex crime
re
believability
on
constituted
ment
witness
however,
reference to the Sixth
versible error. That court
made no
Rather,
Amendment.
centered on the Federal Rules
its
explicitly
Eighth
In
stated
Evidence.
a more recent case the
Circuit
propriety
expert testimony
general patterns of credi
on
essentially
bility
a matter
among
reporting
children
sexual abuse is
(8th
1988),
299,
Adesiji v.
Minnesota
854 F.2d
300.
of state
Cir.
law.
holding
expert’s
an
comment
Research
no
has disclosed
cases
Rather,
credibility
other
the Sixth Amendment.
witness
violates
evidence,
type
analyzed
pursuant
courts
to rules of
have
this
of error
v. Peo
See,
e.g. Tevlin
by applying
a state harmless error test.
1987),
(Colo. 1986)
(Colo.
ple,
People v. Oliver
341-342;
the record shows that the error requiring is whether prejudicial “The reversal MCA. test might inadmissible possibility there is a reasonable Gray (1983), 207 State v. have to the verdict.” contributed 445, Gray 268, (1983), State v. 261, 1262, 1266; 202 Mont. 673 P.2d 401, (1977), State LaVe 449-450, 255, 257; 174 Mont. 659 P.2d 407, 97, 571 P.2d 101. argument to the federal
Mr. Brodniak devotes considerable test is harmless error test. We note that the federal essentially for Montana. the same as that above enunciated constitu Supreme the test federal United Court stated States 85, 86-87, Fahy v. Connecticut 375 U.S. tional error 171, restated The Court later S.Ct. 11 L.Ed.2d Fahy it however, Chapman, noting change did not test test: Fahy v. little, any, statement
“There is if difference between our
115 possibility Connecticut about ‘whether there is a reasonable that the complained might evidence of have the conviction’ contributed to requiring prove beneficiary a constitutional error to be- of yond a complained reasonable doubt that the of not did con- We, therefore, to tribute the verdict no obtained. do more than ad- hold, meaning Fahy do, here to the of our case when we as we now harmless, that before a federal be constitutional error can held court must be able to it beyond belief was harmless declare reasonable doubt.”
Chapman, 24, at 386 U.S. 87 S.Ct. 828. at question
The essential possibility is is whether there a reasonable might inadmissible evidence have contributed to the conviction. issue,
Before discussion of this we first note that Mr. Brodniak is asking this already Court to reconsider an issue which was decided original in the appeal of Brodniak where this Court stated: Court, however, “This will judgment of reverse a conviction error, question harmless particular as to whether a error is harmful or depends facts of under the case review. (Citation omitted.) In the instant case we hold that the admission testimony, Walters’ quoted, above was harmless A error. review of the record of physical this case reveals against that the evidence Brodniak and his own admissions he resorted violence were so overwhelming that admission of the RTS did not affect his rights.” substantial 223, 221 Mont. at 718 P.2d 329. at is rule one method this- evidence used
Court to ascertain whether possibility is a there that the inadmissible evidence contributed to the verdict. State v. McKenzie 458, denied, 186 428, 608 P.2d cert. U.S. 449 1050, 626, (1980); accord, People S.Ct. Tevlin L.Ed.2d (Colo. 1986), Also, prejudicial 715 P.2d assessing when error, totality effect of an this Court will examine the of the circum Gray, stances which the error See 207 Mont. at occurred. evidence, P.2d If erroneously at 1266. the error involves admitted we single will not out that one it in item of evidence to evaluate isola magnify tion. To do so prejudicial could error be effect yond impact verdict, its actual leading to reversals for mere evidentiary technical violations rules. urges
Mr. Brodniak that the evidence in case over is not whelming standpoint. legal argu- either from a legal factual or a His Factually, III. he con-
ment on this will addressed Issue issue be equally with defendant’s tends that the is as consistent evidence consensual, theory (which were the sexual acts the case violent) with the as it is subsequently but that defendant became prosecution’s key argu- theory. point is the of Mr. Brodniak’s This disagree. ment which we story uncorrobo- This not a case where the witness’s — — physical and Overwhelming
rated. both testimonial First, tearing story. regard supports D.P.’s evidence with the use of force. overwhelmingly out of D.P.’s hair demonstrated most the hairs found The chief of the testified that crime lab *6 scalp had large D.P.’s the car the of hair retrieved from and ball that most pulled painful force. He testified been from her head with attached, indicating still of the of strands hair had extended roots violently. was intro- these The ball of hair that hairs were extracted that, while D.P. attending nurse testified duced into evidence. The scalp hair, out her “gross combed of hair came her amount” Second, tear inch appeared be D.P. one to tender. suffered rela- anus, clearly consensual length her a fact inconsistent with Third, that examining physician’s established tions. the and that vagina, D.P. had her on her underwear blood and around vaginal at the time of the examination. area still remained sore response attempts argue In to that he became violent the defendant they after sexual intercourse. engaged had consensual inter- foregoing consistent with consensual evidence not clearly We part of the defendant. course and establishes violent acts testimony of including the will not set forth the rest of the record supports D.P. Our careful review of which conviction. supports that overwhelmingly the verdict reveals that the evidence We without consent. guilty Mr. Brodniak was of sexual intercourse possibility psychologist’s testi- hold is no that there reasonable finding guilty mony jury’s that Mr. Brodniak contributed to the of the crime of sexual without consent. intercourse regard to bur- argument
Mr. makes an extensive Brodniak it is proof conclude that according den different tests. We to the previously de- unnecessary argument to discuss that because overwhelming State is scribed evidence submitted possibility no Court has concluded that there is reasonable error contributed verdict.
II analysis supplied by Does the harmless error the Montana Su preme in its Court review of the criminal defendant’s trial contra process requirement vene the due guilt proven clause be be yond a reasonable doubt? assumption Brodniak’s claim rests on the erroneous that the analysis
state requisite harmless error somehow lowers the level of proof necessary to “guilty beyond meet the standard a reasonable earlier, doubt.” requires As stated the Montana test that there be no possibility error cofitributed the verdict Brodniak, before it can be declared harmless. We hold that in there was no process requirement contravention guilt due be proven beyond a reasonáble doubt.
III
law,
As a matter of
can
evidence be
be
found to
purposes
for
where one or more members
appellate
tribunal are not
that it is?
convinced
one member of our seven-member Court dissented
majority opinion.
law,
from the
argues
Brodniak
aas matter of
evidence cannot be overwhelming
purposes
of harmless error
analysis where
appellate
one or more members of the
tribunal are
However,
unanimity
convinced that it
among
appellate
is.
prerequisite
tribunal has never been a
finding
to a
using
when
test,
the overwhelming evidence
even when
is-
the test
*7
used to
magnitude
determine the
of constitutional error. See State
(1982),
289,
v.
(one
Powers
justice
198 Mont.
We affirm petition the District Court’s denial of Mr. Brodniak’s post-conviction relief.
118 HARRISON, Mc-
CHIEF JUSTICE TURNAGE and JUSTICES DONOUGH and GULBRANDSON concur. HUNT, dissenting:
JUSTICE beyond proving reasona- I dissent. The the of State bore burden sexual complaining not consent to ble doubt that the witness did case, the State solic- intercourse with the defendant. To bolster its complaining witness. testimony credibility of regarding ited the the I impact testimony, of this potentially Because of the tremendous contrib- join the error did not majority’s cannot the conclusion that ute to the verdict. factors, each depends on of
Whether an error is a number analyzed by reviewing These carefully court. of which should be- the factors include:
1) error; the nature
2) erroneously to the importance admitted case; State’s
3) presence corroborating untainted evidence. or absence of 673, (1986), 1431, S.Ct. 89 v. Arsdall 475 U.S. Cf. Delaware Van determining (listing harm- L.Ed.2d factors to be considered confrontation); right involving lessness Sixth Amendment 108 S.Ct. Satterwhite Texas U.S. testimony in Sixth Amend- (psychiatrist’s L.Ed.2d violation of testimony regard- right to was not harmless when ment counsel sentencing, dangerous propensity critical to ing defendant’s only and when the State psychiatrist when one testified on issue testimony). placed weight significant directly implicated in this The nature of the error committed case is, trial, whether the to at the ultimate issue be determined the de- to complaining witness consented sexual intercourse credibility Thus, regarding expert’s testimony fendant. province of the improperly invaded the witness Furthermore, jury. testimony State’s case. was material upon relied actively and the State The State solicited the Moreover, closing. it in the untainted evidence corroborated case, theory of the the defendant’s the State’s it corroborated well, is, until after not occur as the violent acts did case sexual encounter. consensual places opinion evidence test used factfinder, forcing the ma- position
majority the uncomfortable and, extent, evidence. jority reweigh mischaracterize to some *8 example, physician For complaining who witness examined the common, although possibly testified her condition could majority, have resulted from consensual The how- sexual relations. ever, “clearly claims that her condition was inconsistent” with con- sensual intercourse.
By concentrating solely ignoring weight of the evidence and the nature importance of the error and the error’s to the State’s case, majority impact of the error a vacuum. examines jury issue before the was whether the witness en- gaged in consensual a sexual relations with the defendant. To reach verdict, jury weighed credibility Among of the witnesses. - testimony evidence the highly quali had before it was the of a expert fied witness who asserted that he believed that the com- plaining witness was credible. This was solicited extensively State and upon by closing. relied State Under circumstances, these I that, beyond agree cannot majority doubt, expert testimony did not contribute jury verdict.
I would remand the case to the Court for new District trial. JUSTICE SHEEHY concurs in foregoing dissent.