*1 MONTANA, OF STATE Respondent, Plaintiff Ap MAXWELL, GREGORY KENT pellant. No. 81-429. 26, 1982.
Submitted Feb.
28, 1982.
Decided June
MR. JUSTICE delivered Defendant conviction Yellowstone appeals County Court, District of sexual intercourse without consent. First, issues. he that his raises several argues claim is substantial evidence. This by conviction unsupported is the assertion that the complaining based on it belief unworthy witness is so incredible that inherently as a of law. He claims that his alibi defense entitles matter also *3 Second, a he claims him to reversal as a matter law. that the im- during by was of misconduct deliberations guilty disregar- facts evidence and considering by properly Third, he claims that the scientific evidence. ding competent condition, her diabetic because of aggravated foreperson, the her honest conviction that was surrender compelled affirm. defendant was innocent. We to the November the victim’s sister 13, 1980, reported On that the victim had Yellowstone Sheriffs County Department arrived at the victim’s sexually been assaulted. Deputies was near and she taken investigate residence Ballentine to a for treatment a number of Billings superficial Hospital cuts inflicted the attack. during attack, gave police victim following evening the crime. She
a first version of containing statement her her trailer home that, clothes outside hanging while a very from behind afternoon, by she was during grabbed located her into a bam man who forced fat, red haired large, large attacker had bumps She stated that her on the property. very peculiar ripped on his face and voice. The attacker then hunting and cut off her clothes knife with and force her to perform oral sex twice. victim stated that both times the penis attacker removed his from her mouth and “it went” all repeatedly her over face and hair. The attacker cut her with anyone the knife and threatened her life if she told at- waiting tack, and then fled. After in the bam for a con- time, siderable she house, returned to her threw her clothes in garbage finally can and took several baths. She called her requesting Hardin, sister in that she to her come house police because she had shortly been hurt. The sister called the after she arrived at the victim’s house. day
On again November after the attack, victim gave police substantially a statement which was the same as given day the one before. Sometime after this, victim photographs by police. shown number of From five photographs, the victim selected two that she felt were similar to the man had described. One of these individuals questioned by police, charges but no were filed.
On November 24, the victim called Ellis, Detective and ask- speak concerning ed to with him the attack and Detective During Ellis drove to her house. this interview, victim substantially changed story her when, where, about and how place, the crime took Greg her identified assailant as Max- person a well, whom she had met on one occasion about one month before previous the attack. She recanted saying gave statements, that she false information out of fear revenge reported Maxwell would seek if she him to the police. day, On the same the victim another account of the attack. doing laundry
While 7:45 a.m., about she answered a recognized knock on her door. She the defendant, invited him cup inside, and offered him a of coffee. When she turned to grabbed make coffee, the defendant her from behind and *4 knifepoint away forced her at into the bedroom. He cut perform clothes and twice forced her oral sex, and cut her repeatedly police with the knife. Her account also left with impression ejaculated, although that had Maxwell she had expressly this. stated 24 and the afternoon of November arrested on
Maxwell was first consent. When sexual intercourse without with charged 13, Maxwell on November as to his whereabouts questioned on in or at work at home Billings, stated that he was either his to search gave permission Maxwell Crow Reservation. trial, victim was found. At knife hunting truck and in the at- “similar” to the one used that the knife was it, identify because she positively was unable to tack, but she the knife used the attack. seen the handle of had not without objection. knife was admitted at trial defendant’s that learned Maxwell investigation, police During “retrograde ejaculation” known as from condition suffered This caused ejaculate. him from emitting any which prevented because the victim’s account had Ellis some concern Detective attacker had twice that left him with impression Ellis, the questioned by on her face and hair. When ejaculated statement, that she was saying explained previous victim she ac- She that explained further any ejaculate. not aware rubbed his on penis attacker had that her say meant tually felt cut, she face had been hair. Because her her face and been her own her face which have on “something sticky” oral never had previously had blood. She also stated sex, seen semen. and had never at approx- the assault took place testified that
The victim victim’s relied on alibi a.m. The defendant 7:45 imately her. impeach statements inconsistent prior in their still in bed that he testified girlfriend Maxwell’s Maxwell at 6:30 a.m. left for work when she apartment made cof- 7:00 or 7:30 a.m. and he at about arose testified Exchange. from Builder’s a booklet reviewing fee while on the relies (He drywaller frequently is a self-employed testified that jobs.) Exchange finding Builder’s brother, with a.m., he talked on telephone 8:20 about His Branstatter, hunting trip. concerning possible Tom call. Defendant 8:20 a.m. telephone brother confirmed brother for approximately with his that he talked testified call, reviewing he continued minutes, and after booklet. Exchange Builder’s
503 testified that a.m., at about 9:00 he left his apart- ment and went to the Builder’s Exchange to look at specific of sets on which he plans intended to bid. On his arrival he found that these plans available, were not he and then went to visit his brother, Ted Maxwell. He at arrived Ted Max- well’s home between 10:00 and a.m., 10:30 and there remained until close to 3:00 p.m. Both Ted Maxwell and Ted’s wife testified the defendant’s in their presence home from ap- 10:00 proximately a.m. to 3:00 p.m.
SUBSTANTIAL EVIDENCE time,
Defendant’s other than his own testimony, is unac- for course, counted between 6:30 a.m. 8:20 Nor, and a.m. of could Tom Branstatter be sure that defendant called him from home 8:20 a.m. Nonetheless, defendant the uncon- argues tradicted of his testimony family girlfriend established an alibi. He further argues victim, of the testimony so inherently that, incredible as a matter law, of it cannot sup- port verdict. is the sole of judge credibility of witness. (1946), 119 Craney 172 157, Mont. P.2d 308.
Batchoff this case is Although especially troubling because of the vic tim’s prior statements, inconsistent these inconsistencies do not make her testimony incredible. inherently “Only those rare cases where the story told is so inherently or improbable is so nullified by material self-contradictions that no fair- minded could person believe it we say that no firm foun may dation exists for the verdict based it.” State v. Gaimos (1916), 118, 162 53 Mont. P. 596 at 599. A conviction sexual intercourse without consent be based on the un entirely (1969), corroborated testimony of the victim. State v. Metcalf 153 369, also, Mont. 457 P.2d 453. See State v. Bouldin 276, Mont. in which this Court stated:
“.
. .
fact and
disputed questions of
credibility
witnesses will not be considered on
but that determina-
appeal
tion of such matters is within the
of the
As
province
jury.
long
as there is substantial evidence to
the verdict
it will
support
cases).
not be disturbed on
Here, appeal (citing
testimony
prosecutrix
con-
surrounding circumstances
to the
conviction.”
substantial evidence
support
stituted
It is undisputed lacera- many She treated superficial assault. physical The ques- were not self-inflicted. that, probability, all tions assaulted her and the defendant had tion was whether first differed her. The victim’s account he had raped whether defense at- the attack. The her later account of from greatly with her first account tempted impeach ex- statement, but the first making She admitted the attack. because of her initial false account that she plained if she identified revenge seek *6 fear that the defendant would defen- testified that the as her assailant. She the defendant It was for if to authorities. she went the dant threatened her of whether, conflicting because her to jury the determine obviously of belief. The was statements, jury she was worthy Her of first statement. con- her explanation satisfied with Court to declare that do not this flicting justify statements belief. is, as, law, unworthy matter of of testimony a for could account his The alibi witnesses not defendant’s 7:40 a.m. assault, the approximately at the time of presence at a.m., he arrived him 6:30 His was with until girlfriend fact, jury In was at 10:30 a.m. his brother’s home about the defen between where Billings, that the distance aware in be travelled resided, victim, could and the home of dant therefore, that the could jury It is 30 to 35 minutes. possible, and still the alibi witnesses of testimony have accepted the crime. committed that the defendant have concluded alibi of the disbelieve the was not jury required guilty. in to find defendant witnesses order JURY MISCONDUCT ALLEGED in that the acted jury improperly alleges next defendant compe- and in disregarding a not in evidence fact considering contention, of this In support evidence. tent scientific foreperson. of the jury affidavit offers the defendant considering while the was jury that The defendant contends deliberations, one during alibi of the defendant’s validity Exchange Builder’s stated that jurors allegedly at 8:30 a.m. The defendant contends that because opened trial, there effect it was no evidence this introduced reversible error that such a fact. rely jury upon affect a material
Alleged misconduct must matter in and must prejudice Nelson dispute complaining party. (1970), v. C Plywood 414, 314; & C Mont. 465 P.2d Corp. Bourdeau 148 Mont. Schmoyer 316. Here, has alleged, the defendant not and the record clearly shows, the time at that which Builder’s Exchange opened a not material fact in new trial dispute, warranted.
The defendant next that the alleges jury acted improperly the testimony of the ignoring defendant’s Dr. Ver- physician, million, and relying upon instead opinions unfounded some of the Dr. jurors. Vermillion testified that defen- dant’s medical him (retrograde condition ejaculation) made in- capable ejaculation. The affidavit stated foreperson’s some of male an jurors delibera- expressed opinion during tions with person retrograde ejaculation would still be capable of some emitting fluid during ejaculation. 606(b),
Under Rule Mont.R.Evid., discussions concern- ing beliefs of the are personal jurors from prohibited disclosure. This rule prohibits juror from testifying:
“. . . as to matter or any statement occurring during course jury’s deliberations or to the effect of anything or any jurors’ mind or emotions as influencing *7 him to assent or dissent from the or indictment or verdict con- céming mental in connection processes therewith.”
The jury’s discussion of the effect of retrograde not be ejaculation, should considered as a for new trial. ground 606(b), Ride is designed to insure the have a right to jury camera, deliberate in free from “frivolous and recurrent inva sions of that privacy by disappointed litigants.” Advisory 606(b). Committee Note to Federal Ride The exceptions in this rule exclusive, stated are and are construed. narrowly 403, 503 Charlie v. Foos 538. They Mont. app ly to instances “outside” or “extraneous” in primarily fluence the has raised the jury. nothing an fall within to Rule exception deliberations which juror 606(b). that misconduct does alleged juror
Aside from the fact the relief, rule the provides not fall within a which record provides testimony the the jury rejected no basis to determine whether In the fact, could have expert. jury accepted of the officer victim, who denied testimony telling police If so, defendant had on her face. that ejaculated defendant suffered from of the that testimony expert would not have been factor in the retrograde ejaculation, (offered Furthermore, instruction no. decision. jury’s by defendant) to told the jury State and not objected by to of an witness as opinion expert it was not bound accept ex- If did of an jury conclusive. not accept to do so under this instruction. witness, it at pert liberty not, does The diabetic condition jury foreperson, facts, jury exceptions under verdict. The these invalidate 606(b) relate to extraneous deliberations, Rule on juror pre their into the room. way jury influences which find judicial must also be exceptions narrowly The that these agree courts construed. was known juror’s
The diabetic condition alleged effect its Dur- after the had returned with verdict. only jury guilty examination of the the jury foreperson ing preliminary jurors as her hinder her might performance did not indicate diabetes verdict, its When the returned with foreper- juror. a verdict. She replied son was asked whether it had reached She, as well individually and the was then “yes;” polled. verdict. as the verdict her jurors, had no that her diabetic condition Again, indication change her to her vote. compelled as not have been It is also that her condition possible at The bailiff at the trial testified critical as the claims. defense as to her trial, and she testified motion for new defendant’s accompanied bailiff observations of jury foreperson. had before the jury and other dinner jurors the foreperson dinner, sat next reached a verdict. foreperson She had received eating. and talked to other while jurors
507 and the bailiff no indication that she was in insulin of distress or deliberations after incapable continuing dinner. The of case law and commentaries on this great weight issue, mental, indicates that a and emotional juror’s physical, condition is inherent in the verdict. The effect that such condi tion on an vote may juror’s have individual is within the pro 606(b). Jurors Impeachment of of In Mueller, hibition Rule Verdicts and Indictments in Federal Court Under Rule 606(b), (1978), 57 Neb.L.Rev. 920 the author’s survey law concludes that statements juror they compromised their due “personal honest convictions to matters” in order to deliberations, end falls within the squarely prohibition of Rule 606(b).
Courts have held that the mental processes and emotional of cannot be considered as a basis for jurors retrial, even if such mental are processes the result of a illness. physical Rather, it is the his or juror’s duty her condition to bring the attention of the court before a verdict is reached. State v. in Forsyth
For
example,
133,
Wash.App.
533 P.2d
criminal defendant moved for retrial due to
the alleged misconduct of a
on the
juror
remaining
when her illness rendered her
of
incapable
continuing.
affidavit
juror’s
stated that
she was uncomfortable
distracted
throughout
trial and
She
deliberations.
further
that,
were it
her illness and
other
pressure from
jurors,
she would not have voted for conviction. The
“. .
Washington
flatly
Court stated
. the
effect of
illness and
jurors
the claimed pressure by
jurors
not be
used
that verdict.” 533 P.2d at
impeach
851. The
court reasoned that
on a
in
effect
illness
vote
juror’s
verdict,
heres
and is not
Other
subject
impeachment.
state courts hve adhered
view,
to this
that the effect of
stating
illness, or
fatigue,
exhaustion on the
deliberations
cannot
v.
impeach the verdict. Jones
State
(Okl.1976),
be used to
(Alaska
State
v.West
62;
1968),
405;
440 P.2d
Gafford
(Alaska 1966),
State
We hold that the effect of the foreperson’s diabetes her mental deliberation falls processes during 606(b). within the prohibition Rule Court District affirmed. judgment JUSTICES HASWELL MR. MR. JUSTICE CHIEF WEBER concur. DALY, HARRISON, MORRISON and dissenting: MR. JUSTICE SHEEHY *9 of this defendant. I would reverse conviction She told inherently incredible. prosecutrix attack, amended obviously versions of many too fit defendant. version to this final