*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 779 P.2d 71. *2 William Boggs argued, Missoula, petitioner appellant. for Racicot, Atty. Gen., Dorothy Atty. Marc argued, Asst. McCarter Gen., Helena, III, Missoula, Deschamps, County Atty., Robert L. for respondent. Opinion

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. 718 P.2d 322. briefly the facts here. describe early May left a Missoula morning

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; 715 P.2d at 614, 222, (1986), State v. Chul Yun Kim 225; P.2d 318 N.C. 347, S.E.2d 352. Montana, harmless “unless an law be deemed error of state will 46-20-701, prejudicial.” Section

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. 645 P.2d 1357 dissent- ing from determination); (1979), harmless error State v. Dess 184 116, (one justice 602 P.2d 142 dissenting); Milton v. Wain- wright (1972), 371, (four 2174, 1; 407 U.S. 92 jus- S.Ct. 33 L.Ed.2d dissenting); (1969), 250, tices Harrington and v. U.S. 395 California 1726, (three 89 S.Ct. 23 L.Ed.2d 284 justices dissenting). Although cases, analysis we have referred to some our federal and holding our opinion upon this of are based our Mon- tana’s defining interpreting statute and law our case opinion independent standard. Our therefore based on adequate grounds. state

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.