No. 81-429
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
GREGORY KENT MAXWELL,
Defendant and Appellant.
Appeal from: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone
Honorable William J. Speare, Judge presiding.
Counsel of Record:
For Appellant:
Allen Beck argued, Billings, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Dorothy BlcCarter, Assistant Attorney General, argued,
Helena, Montana
Harold F. Hanser, County Attorney, Billings, Montana
Klaus Richter argued, Deputy County Attorney,
Billings, Montana
Submitted: February 26, 1982
Decided: June 28, 1982
Filed. u ~ 2 8 1982
j .~
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Defendant appeals his conviction in Yellowstone County
District Court, of sexual intercourse without consent.
Defendant raises several issues. First, he argues that
his conviction is unsupported by substantial evidence. This
claim is based on the assertion that the testimony of the
complaining witness is so inherently incredible that it is
unworthy of belief as a matter of law. He also claims that
his alibi defense entitles him to a reversal as a matter of
law. Second, he claims that the jury was guilty of mis-
conduct during deliberations by improperly considering facts
not in evidence and by disregarding competent scientific
evidence. Third, he claims that the jury foreperson, because
of her aggravated diabetic condition, was compelled to
surrender her honest conviction that the defendant was
innocent. We affirm.
On November 13, 1980, the victim's sister reported to
the Yellowstone County Sheriff's Department that the victim
had been sexually assaulted. Deputies arrived at the
victim's residence near Ballentine to investigate and she
was taken to a Billings Hospital for treatment of a number
of superficial cuts inflicted during the attack.
The evening following the attack, the victim gave the
police a statement containing her first version of the
crime. She stated that, while hanging clothes outside her trailer
home during the afternoon, she was grabbed from behind by
a very large, fat, red haired man who forced her into a
barn located on the property. She stated that her attacker
had large bumps on his face and a very peculiar voice. The
attacker then ripped and cut off her clothes with a hunting
k n i f e and f o r c e d h e r t o perform o r a l s e x t w i c e . The v i c t i m
s t a t e d t h a t b o t h t i m e s t h e a t t a c k e r removed h i s p e n i s from
h e r mouth and " i t went" a l l o v e r h e r f a c e and h a i r . The
a t t a c k e r c u t h e r r e p e a t e d l y w i t h t h e k n i f e and t h r e a t e n e d
h e r l i f e i f s h e t o l d anyone of t h e a t t a c k , and t h e n f l e d .
After waiting i n t h e barn f o r a considerable t i m e , she
r e t u r n e d t o h e r house, t h r e w h e r c l o t h e s i n t h e g a r b a g e can
and took s e v e r a l b a t h s . She f i n a l l y c a l l e d h e r s i s t e r i n
Hardin, r e q u e s t i n g t h a t s h e come t o h e r house b e c a u s e s h e
had been h u r t . The sister c a l l e d t h e p o l i c e s h o r t l y a f t e r
s h e a r r i v e d a t t h e v i c t i m ' s house.
On November 1 4 , t h e day a f t e r t h e a t t a c k , t h e v i c t i m
a g a i n gave p o l i c e a s t a t e m e n t which was s u b s t a n t i a l l y t h e
same a s t h e one g i v e n t h e day b e f o r e . Sometime a f t e r t h i s ,
t h e v i c t i m was shown a number o f p h o t o g r a p h s by t h e p o l i c e .
From f i v e p h o t o g r a p h s , t h e v i c t i m s e l e c t e d two t h a t s h e f e l t
w e r e s i m i l a r t o t h e man s h e had d e s c r i b e d . One o f t h e s e
i n d i v i d u a l s was q u e s t i o n e d by t h e p o l i c e , b u t no c h a r g e s
were filed.
On November 2 4 , t h e v i c t i m c a l l e d D e t e c t i v e E l l i s , and
a s k e d t o speak w i t h him c o n c e r n i n g t h e a t t a c k and ~ e t e c t i v e
E l l i s d r o v e t o h e r house. During t h i s i n t e r v i e w , t h e v i c t i m
s u b s t a n t i a l l y changed h e r s t o r y a b o u t when, where, and how
t h e c r i m e t o o k p l a c e , and i d e n t i f i e d h e r a s s a i l a n t a s Greg
Maxwell, a p e r s o n whom s h e had m e t on one o c c a s i o n a b o u t one
month b e f o r e t h e a t t a c k . She r e c a n t e d h e r p r e v i o u s s t a t e m e n t s ,
s a y i n g t h a t s h e gave f a l s e i n f o r m a t i o n o u t of f e a r t h a t
Maxwell would s e e k r e v e n g e i f s h e r e p o r t e d him t o t h e p o l i c e .
On t h e s a m e day, t h e v i c t i m gave a n o t h e r a c c o u n t of t h e
attack.
While doing her laundry at about 7 : 4 5 a.m., she answered
a knock on her door. She recognized the defendant, invited
him inside, and offered him a cup of coffee. When she
turned to make the coffee, the defendant grabbed her from
behind and forced her at knifepoint into the bedroom. He
cut away her clothes and twice forced her to perform oral
sex, and cut her repeatedly with the knife. Her account
also left the police with the impression that Maxwell had
ejaculated, although she had not expressly stated this.
Maxwell was arrested on the afternoon of November 24
and charged with sexual intercourse without consent. When
first questioned as to his whereabouts on November 13,
Maxwell stated that he was either at home in Billings, or at
work on the Crow Reservation. Maxwell gave permission to
search his truck and a hunting knife was found. At trial,
the victim stated that the knife was "similar" to the one
used in the attack, but she was unable to positively identify
it, because she had not seen the handle of the knife used in
the attack, The defendant's knife was admitted at trial
without objection.
During the investigation, the police learned that
Maxwell suffered from a condition known as "retrograde
ejaculation" which prevented him from emitting any ejaculate.
This caused Detective Ellis some concern because the victim's
account had left him with the impression that the attacker
had twice ejaculated on her face and hair. When questioned
by Ellis, the victim explained her previous statement,
saying that she was not aware of any ejaculate. She further
explained that she actually meant to say that her attacker
had rubbed his penis on her face and hair. Because her face
had been cut, she felt "something sticky" on her face which
may have been her own blood. She also stated that she had never
previously had oral sex, and had never seen semen.
The victim testified that the assault took place at
approximately 7 : 4 5 a.m. The defendant relied on alibi and
the victim's prior inconsistent statements to impeach her.
Maxwell's girlfriend testified that he was still in bed
in their apartment when she left for work at 6:30 a.m.
Maxwell testified that he arose at about 7:00 or 7:30 a.m.
and made coffee while reviewing a booklet from the Builder's
Exchange. (He is a self-employed drywaller and frequently
relies on the Builder's Exchange in finding jobs.) Defendant
testified that at about 8:20 a.m., he talked on the telephone
with his brother, Tom Branstatter, concerning a possible
hunting trip. His brother confirmed the 8:20 a.m. telephone
call. Defendant testified that he talked with his brother
£cr approxinately 30 minutes, an4 after the call, he
continued reviewing the Builder's Exchange booklet.
Defendant testified that at about 9:00 a.m., he left
his apartment and went to the Builder's Exchange to look at
specific sets of plans on which he intended to bid. On his
arrival he found that these plans were not available, and he
then went to visit his other brother, Ted Maxwell. He
arrived at Ted Maxwell's home between 10:OO and 10:30 a.m.,
and remained there until close to 3:00 p.m. Both Ted Maxwell
and Ted's wife testified to the defendant's presence in
their home from approximately 10:OO a.m. to 3:00 p.m.
SUBSTANTIAL EVIDENCE
Defendant's time, other than his own testimony, is
unaccounted.for between 6:30 a.m. and 8:20 a.m. Nor, of
course, could Tom Branstatter be sure that defendant called
him from home at 8:20 a.m. Nonetheless, defendant argues
the uncontradicted testimony of his family and girlfriend
established an alibi. He further argues that the testimony
of the victim, was so inherently incredible that, as a
matter of law, it cannot support the verdict.
The jury is the sole judge of the credibility of a
witness. Batchoff v. Craney (1946), 119 Mont. 157, 172 P.2d
308. Although this case is especially troubling because of
the victim's prior inconsistent statements, these inconsistencies
do not make her testimony inherently incredible. "Only in
those rare cases where the story told is so inherently
improbable or is so nullified by material self-contradictions
that no fair-minded person could believe it may we say that
no firm foundation exists for the verdict based upon it."
State v. Gaimos (1916), 53 Mont. 118, 162 P . 596 at 599. A
conviction of sexual intercourse without consent may be
based entirely on the uncorroborated testimony of the victim.
State v. Metcalf (1969), 153 Mont. 369, 457 P.2d 453. See
also, State v. Bouldin (1969), 153 Mont. 276, 456 P.2d 830,
in which this Court stated:
". .. disputed questions of fact and the
credibility of witnesses will not be considered
on appeal but that determination of such matters
is within the province of the jury. As long as
there is substantial evidence to support the
verdict it will not be disturbed on appeal (citing
cases). Here, the testimony of the prosecutrix
and the surrounding circumstances constituted sub-
stantial evidence to support the conviction." 456
P. 2d at 834-835.
It is undisputed that the victim had suffered a violent
physical assault. She was treated for many superficial
lacerations that, in a11 probability, were not self-inflicted.
The question was whether the defendant had assaulted her and
whether he had raped her. The victim's first account differed
greatly from her later account of the attack. The defense
attempted to impeach her testimony with her first account of
the attack. She admitted making the first statement, but
explained that she gave the initial false account because of
her fear that the defendant would seek revenge if she
identified the defendant as her assailant. She testified
that the defendant threatened her if she went to the authorities.
It was for the jury to determine whether, because of her
conflicting statements, she was worthy of belief. The jury
was obviously satisfied with her explanation of her first
statement. Her conflicting statements do not justify this
Court to declare that her testimony is, as, a matter of law,
unworthy of belief.
The defendant's alibi witnesses could not account for
his presence at the time of the assault, approximately 7 : 4 0
a.m. His girlfriend was with him until 6:30 a.m., and he
arrived at his brother's home at about 10:30 a.m. In fact,
the jury was aware that the distance between Billings, where
the defendant resided, and the home of the victim, could be
travelled in 30 to 35 minutes. It is possible, therefore,
that the jury could have accepted the testimony of the alibi
witnesses and still have concluded that the defendant committed
the crime. The jury was not required to disbelieve the
testimony of the alibi witnesses in order to find defendant
guilty.
ALLEGED JURY MISCONDUCT
The defendant next alleges that the jury acted improperly
in considering a fact not in evidence and in disregarding
competent scientific evidence. In support of this contention,
the defendant offers the affidavit of the jury foreperson.
The defendant contends that while the jury was considering
the validity of the defendant's alibi during deliberations,
one of the jurors allegedly stated that the Builder's
Exchange opened at 8:30 a.m. The defendant contends that
because there was no evidence to this effect introduced at
trial, it was reversible error for that jury to rely upon
such a fact.
Alleged jury misconduct must affect a material matter
in dispute and must prejudice the complaining party. Nelson
v. C & C Plywood Corp. (1970), 154 Mont. 414, 465 P.2d 314;
Schmoyer v. Bourdeau (1966), 148 Mont. 340, 420 P.2d 316.
Here, the defendant has not alleged, and the record clearly
shows, that the time at which the Builder's Exchange opened
was not a material fact in dispute, and a new trial is
not warranted.
The defendant next alleges that the jury acted improperly
in ignoring the testimony of the defendant's physician, Dr.
Vermillion, and in relying instead upon the unfounded opinions
of some of the jurors. Dr. Vermillion testified that the
defendant's medical condition (retrograde ejaculation) made
him incapable of ejaculation. The foreperson's affidavit
stated that some of the male jurors expressed an opinion
during deliberations that a person with retrograde ejaculation
would still be capable of emitting some fluid during ejaculation.
Under Rule 606(b), Mont.R.Evid., jury discussions
concerning the personal beliefs of the jurors are prohibited
from disclosure. This rule prohibits a juror from testifying:
". . . as to any matter or statement occurring
during the course of the jury's deliberations
or to the effect of anything upon his or any
other jurors' mind or emotions as influencing
him to assent or dissent from the verdict or
indictment or concerning his mental processes in
connection therewith."
The jury's discussion of the effect of retrograde
ejaculation, should not be considered as a ground for new
trial. Rule 606(b), is designed to insure the right to have
a jury deliberate - camera, free from "frivolous and recurrent
in
invasions of that privacy by disappointed litigants."
Advisory Committee Note to Federal Rule 606(b). The exceptions
stated in this rule are exclusive, and are narrowly construed.
Charlie v. Foos (1972), 160 Mont. 403, 503 P.2d 538. They
apply primarily to instances of "outside" or "extraneous"
influence upon the jury. Defendant has raised nothing in
the juror deliberations which fall within an exception to
Rule 606 (b).
Aside from the fact that the alleged juror misconduct
does not fall within a rule which provides relief, the
record provides no basis to determine whether the jury
rejected the testimony of the expert. In fact, the jury
could have accepted the testimony of the victim, who denied
telling the police officer that the defendant had ejaculated
on her face. If so, the testimony of the expert that defendant
suffered from retrograde ejaculation, would not have been a
factor in the jurys' decision. Furthermore, instruction no.
3 (offered by the State and not objected to by the defendant)
told the jury that it was not bound to accept the opinion of
an expert witness as conclusive. If the jury did not accept
the testimony of an expert witness, it was at liberty to do
so under this instruction.
The diabetic condition of the jury foreperson, does
not, under these facts, invalidate the jury verdict. The
exceptions to Rule 606(b) on juror deliberations, relate to
extraneous prejudicial influences which find their way into
the jury room. The courts agree that these exceptions must
also be narrowly construed.
The alleged effect of juror's diabetic condition was
known only after the jury had returned with its guilty
verdict. During preliminary examination of the jurors the
jury foreperson did not indicate her diabetes might hinder
her performance as a juror. When the jury returned with its
verdict, the foreperson was asked whether it had reached a
verdict. She replied "yes;" and the jury was then individually
polled. She, as well as the other jurors, stated that the
verdict was her verdict. Again, she gave no indication that
her diabetic condition had compelled her to change her vote.
It is also possible that her condition may not have
been as critical as the defense claims. The bailiff at the
trial testified at defendant's motion for a new trial, and
she testified as to her observations of the jury foreperson.
The bailiff accompanied the foreperson and other jurors to
dinner before the jury had reached a verdict. The foreperson
sat next to her at dinner, and talked to other jurors while
eating. She had received her insulin and gave the bailiff
no indication that she was in distress or incapable of
continuing deliberations after dinner.
The great weight of case law and commentaries on this
issue, indicates that a juror's physical, mental, and
emotional condition is inherent in the verdict. The effect
that such condition may have on an individual juror's vote
is within the prohibition of Rule 606(b). In Mueller,
Jurors Impeachment - Verdicts and Indictments - Federal
of in
Court Under Rule 6 0 6 (h), 57 Neb.L.Rev. 920 (1975), the
author's survey of the law concludes that juror statements
that they compromised their honest convictions due to "personal
matters" in order to end deliberations, falls squarely
within the prohibition of Rule 606(b).
Courts have held that the mental and emotional processes
of the jurors cannot be considered as a basis for retrial,
even if such mental processes are the result of a physical
illness. Rather, it is the juror's duty to bring his or her
condition to the attention of the court before a verdict is
reached.
For example, in State v. Forsyth (Wash. 1975), 533
P.2d 847, the criminal defendant moved for retrial due to
the alleged misconduct of a juror in remaining on the jury
when her illness rendered her incapable of continuing. The
juror's affidavit stated that she was uncomfortable and
distracted throughout the trial and deliberations. She
further stated that, were it not for her illness and pressure
from other jurors, she would not have voted for conviction.
The Washington Court stated flatly that ". . . the effect of
the jurors illness and the claimed pressure by other jurors
may not be used to impeach that verdict." 533 P.2d at 851.
The court reasoned that the effect of illness on a juror's
vote inheres in the verdict, and is not subject to impeach-
ment. Other state courts have adhered to this view, stating
that the effect of fatigue, illness, or exhaustion on the
jury deliberations cannot be used to impeach the verdict.
Jones v. State (Okla. 1976), 554 P.2d 62; Gafford v. State
(Alaska 1968), 440 P.2d 405; West v. State (Alaska 19661,
409 P.2d 847.
We therefore hold that the effect of the foreperson's
diabetes upon her mental processes during deliberation falls
within the prohibition of Rule 606(b).
The judgment of the District Court is affirmed.
We Concur:
344,&kd
Chief Justlce
lAAQ4p
Mr. Justice John C. Sheehy will file his written dissent
at a later time.