*1
MONTANA,
STATE OF
Rеspondent,
v.
Plaintiff
Appellant.
SANDERSON,
KENT ALLEN
Defendant
No. 83-558.
21, 1984.
Submitted Nov.
Decided Jan.
1985.
Mark argued Sp. Deputy County as and Gen., Atty. Smith, Gen., Asst. Clay Atty. He- argued, Asst. lena, plaintiff respondent. for and
MR. Opinion JUSTICE HARRISON delivered the Court.
Appellant, Sanderson, a appeals judg- Kent Allen from jury ment on a with- guilty verdict of of sexual intercourse Court, out consent. The District Car- Thirteenth Judicial County, years bon count. sentenced him to ten one We affirm. in this case: essentially parties three involved
There are Be- defendant, and the victim’s best friend. victim just years sixteen cause the her friend were victim and shаll refer to them at incident we age the time respectively. K.D. D.J. their initials: and 29, 1982, by driving her K.D. began morning her on March then school. She younger her sister to mother to work and friend, D.J., two of them decided met her and the best Bill- at a day. They juniors attend were both classes that to drive to Red ings high A decision was made school. with some friends who Lodge they expected meet where girls day. 10:00 a.m. two gone skiing Around freeway on the proceeded left and east to Laurel Billings five miles south Lodge. and then south toward Red About eventually a van driven Laurel, car down and broke After the car by appellant stopped. examining Sanderson it, offered unsuccessfully to start Sanderson trying There, said, attempt girls a into Laurel. he would ride they car into town. locate a tow chain so could tow the in Lau- a check originally Sanderson had intended cash they there stop so a bank. From rel the trio’s first was at met friend Cafe Sanderson drove Adeline’s where a tow chain or thought whom he either have access to might to Sanderson’s According know where one be found. might testimony they were students girls it was here the indicated College. Eastern at Montana tavern, Hut, a where stopped the Suds local pаrty at San- of beer. K.D. bought pitcher
Sanderson testified for identifi- her D.J. if asked them anyone derson told col- say there were of the beer should cation because them. any identification with lege but did not have students *4 knew she at trial that Sanderson It was K.D.’s contention Sanderson, on the other high D.J. students. were school hand, they eighteen or were reiterated his belief years college nineteen old and were students. Hut the conversa-
Everyone while at the Suds agreed that drugs. lively tion turned to a fairly K.D. testified that con- concerning versation occurred between D.J. and Sanderson marijuana. part the sale of taking K.D. denied in that con- D.J., however, versation. she said both and K.D. conversed possibility selling drugs. Sanderson about the San- story derson’s testimony, is a bit According different. to his really K.D. told him they were not to to going Lodge Red ski but were going pick up to mescaline. some Sanderson said he the girls get marijuana told he could some for them they to sell him they pound. told sell a could From the Suds Hut the trio went across street a to convenience store where bought Sanderson some beer and They wine. drove from Supper there to the Beach Palm and, Sanderson, Club according they two smoked mari- juana cigarettes, joints, way. or on the purpose of stop supper at the club was for to make a Sanderson tele- phone up quantity call set a deal to obtain a of mari- juana girls contact, for the to sell. The who a worked at ranch, sample said small on hand.
Sanderson testified that after a chain at a ser- obtaining station, they vice drove they given ranch where were bag Then, one-half ounce of marijuana sample. Sander- said, they son parked girl’s drove to the car.
Everyone agreed that once car they parked reaсhed the they place They could not find a chain. to hook the were car, however, able to start it a and drove short distance before it quit again. They parked along- decided to leave it side the road.
According testimony, leaving to Sanderson’s after they stalled car the the Palm second time returned to Beach supper approximately p.m., club. Since it was 3:00 they school, normally the time would return home from girls thought they should them call home. Sanderson loaned money Now, said, to call. to the Sanderson drove ranch girls and obtained the for the pound marijuanа sell. him the girls Sanderson also stated that it seemed to pound marijuana were more interested in getting *5 they getting their car home. than were parties they marijuana the be- in hand three Once the gan trip that on the testified the back to Laurel. Sanderson way pulled house, later road at brick to Laurel he off the He testified Blackburn residence. identified as the Donald stopped girls he when and where he to talk to the about ultimately pick up money girls realize the would could the empha- marijuana. said he from the of Sanderson sale the really girls to trust that he wanted sized the faсt the money giving get the ma- him he was them to rijuana the for since telling if somebody them He also them on credit. admitted money get then he back from them did not the they perceived girls as a would, else a statement the said may have been He admitted at trial that threat. further point suggestive in- in the conversation. Sanderson at this help point him him if sex K.D. asked would sists at this pound marijuana. He she then her the of testified trust for pants him in the back took her off and had intercourse only front of van, He D.J. was the but once. said Finally, during that he Sanderson testified the van the act. Safeway girls store. them at the took the to Laurel and left testimony point Tracing girls’ the sec- from the where attempt made, differ- ond car a somewhat to start the K.D. that after she ent unfolds. testified account events they time, re- D.J. the car for the second and abandoned supper club turned to the Palm Beach with Sanderson. money girls from Both called mothers with borrowed their a fifth- his father had Sanderson. Sanderson told them might to haul able borrow use wheel trailer that he be supper club to a the car town. trio drove from into marijuana spot along they all some the river where smoked proceeding clock at El Inn. K.D. saw a to the Rancho before p.m. From there the it that location and noticed was 5:30 obtaining ranch and unsuccessful three drove to the were Returning ranch, K.D. said Sanderson from the trailer. just driveway parked house and near a brick the van got talking. minutes then He sat several without there for into girls the back of the with the and girls van told refused, They were to sell him. going marijuana pushed and grabbed Sanderson D.J. and her to back the van. K.D. get prevented tried to out of the van but was from doing when her grabbed so Sanderson arm it try twisted behind her K.D. she back. said continued to escape stop but D.J. her to for fear told that Sanderson would kept saying hurt them. D.J. also testified Sanderson he was if doing this to see he could K.D. said trust them. pushed Sanderson both of them to floor van *6 top laid on simultaneously. of both of them He kiss- began ing D.J., and fondling stopped but she told him she when was menstruating. Sanderson then turned his attention to K.D. According account, to K.D.’s Sanderson her took pants off and got had sexual intercourse with her and then her, off of began D.J. in- kissing again and then had sexual tercourse with K.D. for a second time. After the second act intercourse, of sexual girls Billings Sanderson drove the to and dropped Holiday them off at the Inn. authorities, the statements to girls gave the two at first
conflicting story basically stories. K.D.’s was as related D.J., hand, above. on the initially other law told enforce- ment officers that a third girl accompanied them to Laurel. She later lie designed admitted that was a for the benefit parents. of her She had said to the reason went Laurel was give ride girl a home.
Appellant presents following Sanderson issues on appeal:
(1) by appel- Whether denying District Court erred lant’s motion to for speedy dismiss lack of a trial.
(2) Whether by appel- the District denying Court erred provide lant’s motion tо for attendance a witness. (3) Whether the District error Court committed reversible by failing give appellant’s No. con- offered instruction 8 cerning prior inconsistent statements.
(4) Whether the verdicts rendered and the evidence presented are so inconsistent the verdict of as invalidate guilty on of the information. count one
(5) ap- closing of the State violated argument Whether the pellant’s right to a fair trial.
(6) error Whether the District committed reversible Court 11 set- failing give appellant’s instruction No. offered ting forth material of the information. allegations (7) error Whether the District cоmmitted reversible Court by denying evidence. appellant’s suppress motion to
I day delay from Appellant argues that of the 391 because 30, 1982, until the commence- time arrest on March 25, 1983, trial on denied his constitu- April ment of right speedy disagree. tional We trial. 30, 1982, on arraigned
Appellant was arrested on March April 5, originally Trial was 1982 and then on bail. released 1982, 8, 21, appellant, set June on for but June counsel, a con- requested his and received through original 13, 16,1982. July On August tinuance of date the trial until 1982, appellant’s revoked and he was reincarcer- bond was County until be- ated Jail where he remained Carbon On ing August 1982. recognizance released on his own second received a August appellant asked *7 further sixty days. negotiations continuance of Plea at least re- 22, trial delayed judge on December matters and to ac- stating notice he did want ceived from Sanderson letter cept negotiated plea arrangement. that same as his to withdraw attorney Sanderson’s stated his intention Car- county attorney for attorney. Appointment deputy as Jan- On County bon as reason for withdrawal. was cited appointed. By 12, 1983, attorney new was uary Sanderson’s 31,1983, appel- Cоurt set the District January order mailed 1983, 17, ap- 25, On March April trial 1983. lant’s date for ap- on the basis a to dismiss pellant’s counsel filed motion right speedy ato pellant had been denied his constitutional 19, April on the motion trial. The District Court denied 25, April 1983. 1983, and trial commenced
445 by right speedy guaranteed both the to a trial by Sixth Constitution and Amendment to the United States II, Constitution. Article section 24 of the 1972 Montana provision upon imposed Moreover, the been federal has several Due Clause of the Fourteenth states Process Klopfer v. Amendment to the Constitution. United States (1967), 213, 988, North Carolina 386 18 U.S. 87 S.Ct. L.Ed.2d 1.
Having
appellant’s right
speedy trial,
established
to a
we
right
now consider whether the
has been denied.
appellant
respondent agree
Both
that the test to be
determining
right
speedy
used in
whether the
a
trial has
ago by
been
than
denied
enunciated more
a decade
(1972),
Supreme
Wingo
United States
Barker v.
Court in
407 U.S.
92 S.Ct.
“The
we
is a
test which the
prosecution
weighed.
conduct
both
are
and defendant
balancing
necessarily compels
approach
“A
test
courts
speedy
ad hoc
trial cases оn an
basis. We can do little more
identify
than
some of the factors which courts should assess
determining
particular
has
whether
defendant
been de-
prived
right. Though
might express
of his
some
them dif-
ways,
identify
Length
delay,
ferent
we
four such factors:
delay,
the reason for the
the defendant’s
of his
assertion
right,
prejudice
Barker,
to the
407 U.S. at
defendant.”
530,
After some of the four the Court factors continues: regard
“We
none of the four
above as
factors identified
necessary
findings
either or
of a
sufficient condition
deprivation
speedy
right
Rather,
trial.
are re-
together
lated factors and must be сonsidered
with such
may
sum,
other circumstances as
be relevant. In
these fac-
qualities;
engage
tors have no
talismanic
courts must still
balancing process.” Barker,
a difficult and sensitive
U.S. at
at
446 carefully in present engage
In the it we case is essential that is balancing process difficult and which described sensitive in Barker. initially Court relied on We note that this 209, v. Sanders (1973), P.2d Barker State in 163 Mont. 516 372, in and adopted we the of the four factors usage which final necessary reaching the test is a balancing which conclusion. delay days
We that the here was 390 which note Kelly State v. trigger speedy inquiry. sufficient to a trial (Mont. 1983), 159,] 26, P.2d 364. St.Rep. Mont. 661 40 [203 not delаy for were We conclude that the reasons the given inquiry point. sufficient to terminate our at that addition he as the Sate contention that agrees with the defendant’s appropriate serted his the time. right within question This factor in one only remaining leaves the previously to United States prejudice; have turned we v. Ewell (1966), in United States Supreme Court decision 627, three set forth 383 U.S. 86 S.Ct. L.Ed.2d pro- designed interests which the Sixth Amendment was question of such first was the tect cases as these. The defendant undue oppressive incarceration. Here days twenty-seven only was incarcerated total of оppressive. which record does not disclose be anxiety con- presence factor significant next is the did While defendant accompanying public cern accusation. in the testify there evidence anxiety, as to his is substantial in fact that the District to conclude record allow Court However, not anxiety very do turn his was limited. we nothing was point. on this do note that there cases We of the the defense justify the record to the conclusion argued defendant impaired. While the defendant was of his wit- part on the there were diminished memories state, moved out key nesses and thаt witness left state key witness prosecution showed that delay by any caused August, and his absence part failure on by the in trial. This was buttressed preserve or attempt depose otherwise the defendant testimony of witnesses. *9 process required
As a part balancing under Barker, have regard we reviewed the record with to the trial delay, and have that there is evidence concluded substantial to may show the speedy that defendant not have wanted a responsible trial and the in that defendant fact was for the delay in part. substantial As a result have we concluded that is in position defendant a Mr. similar tо Barker Wingo Barker v. record that the demonstrates that the defendant really speedy did not a is desire trial. While this a close question, and difficult applying the sensitive balanc Barker, ing process required under the we conclude that defendant in this deprived case of his was constitu right tional to a speedy trial.
II Appellant’s second appeal issue on whether District Court erred denying provide his motion to for attend- ance 21, of a April trial, witness. On four days before coun- sel for appellant provide filed a motion the attend- ance of witness, Stevenson, a defense was at who that time residing in Massachusetts. The State resisted motion on the grounds that testify another defense witness would the same redundancy, facts. Because that coupled considerations, cost the motion was denied.
The State contends the motion properly denied for First, two appellant reasons. pro- failed to with the comply cedure for subpoenaing out-of-state witnesses as set forth in 46-15-113, section Second, MCA. the out-of-state witness duplicated would have testimony already at hand and as such would not qualified have as a material witness under the statute.
The appellant process by insists he was denied due District Court’s provide failure to for the attendance of the witness. According appellant access to the witness was denied solely of county basis financial considera- tions, long and cites a Supreme line of United States Court process cases to his claim. buttress due MCA, 46-15-113, the decision According section an out-of-state witness compel whether to the attendance of judge. the trial court solely rests within the discretion of 46-15-113, MCA, only This has addressed section Court us to the issue before in a manner unrelated once then York, People v. Mc today. Appeals Court of of New Cartney (1976), 38 2d 345 N.E. N.Y.2d to face with statute almost N.Y.S.2d found itself face Judge “A Trial issue request identical to ours: compulsory seeking pursuant certificate [the statute] is addressed to of a witness another state attendance Court further held judge.” discretion of the trial That may not “. discretion we . . the absence of an abuse of of nonmaterial judge’s] trial overturn determination [the *10 v. State ity.” McCartney, at 330. See also 345 N.E.2d (Issuance Etheridge (1968), 102, 443 P.2d 74 Wash.2d compel witnesses of attendance of out-of-state certificate u. State discretionary); mandatory lаrgely is not but 179, (issuance of 843, Or.App. Edwards (1970), 471 P.2d of within discretion certificates for out-of-state witnesses court). trial wit only subpoena an out-of-state procedure
The MCA, 46-15-113, applied to is forth in ness set section procedure set failed to make appellant instant case. The had, or statute, would Stevenson forth or otherwise faulty, motion was be, properly subpoenaed. Appellant’s properly denied. testi addition, from the record it is clear witness), (the absent mony of Mrs. Watson ex-wife the events covered given by deposition jury, to the and read Therefore, no we find abuse that occurred in Adeline’s Cafe. from back Stevenson bringing of discretion not Massachusetts. court the trial was true that
If contention appellant’s county of solely on the basis his motion judge had denied been done. would have injustice an standing, financial then In State v. Harris (1980), 47 Or. App. 615 P.2d the Court of Appeals held that suffi- defendant made a cient showing that his proposed out-of-state witnesses were material and refusing therefore the trial court erred in provide funds to secure their attendance. The at case bar dissimilar however. judge ample Here the trial reason to conclude appellant’s proposed witness was nonmaterial. We hold that a finding materiality trial court’s as to of a witness when particular applying this statute will not be disturbed absent a showing clear abuse discretion. Ac- cordingly we reject appellant’s argument on this issue.
Ill appellant Next contends the District Court committed re- error by versible failing give offered instruction No. 8 concerning prior inconsistent statements.
There is a
dearth
case law regarding jury instructions
prior
inconsistent
statements
only
not
Montana but
elsewhere
case,
as well. The
heavily
lone Montana
relied
uрon by defendant,
Taylor
is State v.
(1973),
163 Mont.
106,
“Clearly, such
proper
an instruction would have been
and
case,
in
this,
such as
principal
when the State’s
witness
admittedly
made a
prior
number of
inconsistent
state-
ments,
it
particularly appropriate.
giving
seem
would
requested
inclusion
the instruction with the defendant’s
regarding
better accord
prior inconsistent statements would
clearly instructing
accepted principle
fully
with the
applicable
the
specifics
the
of the law
jury as
the
Taylor,
We from the case must testimony Taylor, in the inconsistent eral reasons. First directly at bar: whether the went to the heart of the issue had, In fact, of the victim. defendant caused the death D. testimony J. case, in the instant the inconsistencies respondent’s probative agree with contain no value. We her incon- “. . . none of only conclusion that was [sic] intercourse the defendant’s sistencies material whether consensual, cor- also with the victim was but were pretrial rected a later statement.” in Second, persuasively, the trial court and most sufficiently the matter its jury structed than more following was read instruction No. 1. instruction speak truth. jury: “Every presumed witness is however, repelled by the manner presumption, may This be testimony, or testified, his by which he character of in truth, honesty, by affecting reputation evidence his (Em contradictory evidence. by or tegrity, or his motives ours.) No. 8 requested instruction phasis Appellant’s with the instruction would have been identical to the above “Furthermore, may be presumption following addition: this made, at other witness has by rebutted evidence testimony.” times, present his statements inconsistent with below, the court find We that no error committed otherwise, by to add this redundant refusing or reversible instruction. competent already complete sentence to an IV whether Appellant’s appeal fourth issue on deals upon which jury before there was sufficient evidence urges specifically, appellant More they based their verdict.
451 us the evidence to find the verdict was so inconsistent with findings. jury’s as to the invalidate Appellant charged was two counts of sexual inter- appellant course that without consent. The victim testified separate sexual forced her to have two acts of inter- appellant only course with him. The insists was one there act and act was consensual. previously cases,
This has Court faced this issue in recent Thompson (1978), State 1105; v. 150, 176 Mont. P.2d 576 (1976), 141, 146, 372, State v. Boe 143 P.2d Mont. 388 375. Thompson, supra, supra, following Boe, we noted separate charged information, “where acts are an and. separate acquittal offense, each act is a an conviction of or one or more counts affect counts ...” does not the other jury, approximately deliberating hours, The after nine appellant guilty guilty found one on on and not count count Appellant apparently jury two. that either believed feels the story his or it believed the victim’s but could not have be- Appellant argues jury lieved a of little each. if believed story, guilty his the verdict have been should both charges. jury story, If the believed the victim’s the verdict guilty should have been on both counts. upon
The we decision are to make therefore called jury province whether the was within its the vic- to believe testimony point convicting appellant tim’s to the of sex- consent, ual without intercourse while at the same time dis- believing testimony many the victim’s as to how acts were perpetrated. question long settled in A is wеll Montana. emphatically Court,
line of cases state that this when as sessing sufficiency upon jury which a of the evidence light verdict, has based its view that evidence must recently prosecution. most this Court favorable Most sufficiency assessing evidence, held when . . “. give probative this must effect toward Court it all of (1973), Fitzpatrick support. it State v. conviction that will 605, v. Hammons State Mont. 516 P.2d 610.” (Mont. 922, 926, 40 St. 1983), 340,] 664 P.2d Mont. [204 judgment its Rep. This will not substitute 888. Court which, case, able to in this jury; jury for that of the observe the de- presented, view the evidence firsthand credibility each weigh meanor of the witnesses and as to contention party. rеject appellant’s Therefore we the. validity of verdict.
V on clos- following that statements Appellant contends inflammatory preju- and were so ing argument by the State trial: him his a fair deny right dicial as to you have to tell guilty, “In not order to find the defendant that she is a K.D., first, second drug pusher; that she was a her got have to tell slut; third, is liar. You and that she says she laid you the defendant when that believe him off and indicated pants of the and took her back car that, gen- and And, ladies you if can believe to come back. case, in this tlemen, presented testimony that was from the him, go.” let him you acquit сan and MCA, 46-20-702, provided trial, At the time of section does error, defect, or variance which “Any irregularity that This has disregarded.” be rights not affect substantial shall modified. subsequently been attempted evidence, testimony appellant and
By his selling drugs K.D. was interested jury convince the that voluntarily she had pusher, drug therefore a any encouragement sexually without offered herself of parts certainly suggests which part appellant, of the appellant and last her as a “slut” society our would class jury. lied to the that K.D. had many times contended on the these contentions testimony K.D. contradicted of part appellant. of the appel to find the in order is not true that
While it she K:D. that tell have to jury would guilty, lant not argument is a matter and liar this drug pusher, was a slut We cer- by the court. legal instruction jury to the tainly any part do such misstatement on the not condone prosecution applied to the for convic- as standard to be However, tion that a comment acquittal. recognize or we do by upon appel- this the evidence submitted nature appropriate prosecution lant so far as the would have been we weighing argument, concerned. the effect оf the have examined the record and concluded that the error on the part prosecution of the this did not making argument affect the rights part appellant substantial on the of the and, therefore, may disregarded. be
VI Appellant next contends the District Court committed re- versible error failing give his offered instruction No. forth setting allegations the material of the information. He 46-ll-401(l)(c)(iv), MCA, relies on section which reads: (1) (c) “Form of charge. charge A shall: . . . charge (iv) commission of . by: stating an offense . . the time and place definitely as . offense as can be done . .” Be- cause the information him charging stated the offense took *14 place “. . . Edgar appellant between Rockvale and . . .” claims it was up insufficient when held to section 46-11- 401(l)(c)(iv), MCA.
The test
sufficiency
of the
of an information is
whether
brought
the defendant
is apprised
charges
of the
against him
State v.
surprised.
and whether
will be
Bogue (1963),
142 Mont.
MR. CHIEF JUSTICE concurring: SHEEHY, specially MR. JUSTICE issue, I trial speedy here. On the I the result concur with responsible for *15 equally is Sanderson persuaded am trial, so and speedy for a have nоt wished delay, may even 1972), (U.S. Wingo Barker v. of Barker position is in the
455 514, 2182, 101. I fear we are L.Ed.2d 407 U.S. 92 S.Ct. 33 Wingo v. Barker ticking too off becoming mechanical deny Such treatment was speedy objection. a trial factors in Barker. Court against by Supreme warned the U.S. on issue, emphasis more deciding place this I would a de in the record that whether there was demonstration really deciding That was the speedy fendant wanted trial. factor in Barker. I am not findings court impressed certainly trial. prejudice awaiting no to a defendant Almost trial, any awaiting on bail or charge defendant under and not, his liberty, is associations are personal restrained his curtailed, anxiety re public obloquy, exposed U.S. v. defendant, friends. See family sults to his 463, Marion 320, 455, (1971), 307, 30 404 U.S. S.Ct. 468. L.Ed.2d issue,
On the instructional I think the court should have may on impeached instructed the that a be jury witness prior jury may lose the inconsistent statements. Otherwise import of cross-examination counsel demonstrate later, story story the witness a different told one earlier and credibility. I directly which reflects on his concur with the majority legislature has eliminated this issue because the 93-1091-12, formerly from code the section language Taylor de- in State v. (1947), R.C.M. on which the decision (1973), pends P.2d 704. 163 Mont.