State v. Bauer

NO. 83-407
I N T E SUPREME C U T O THE STATE O P O T N
H O R F F 4 NA A

1984

STATE O MONTANA,
F

P l a i n t i f f and Respondent,

vs.

CHESTER R. BAUER,

Defendant and A p p e l l a n t .

Appeal. from: D i s t r i c t C o u r t o f t h e Second J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f S i l v e r Bow,
Honorable Mark P . S u l l i v a n , Judqe p r e s i d i n g .

Counsel of Record:

For A p p e l l a n t .

Dunlap and C a u q h l i n , B u t t e , Montana
D e i d r e C a u q h l i n a r q u e d , B u t t e , Nontana

For Respondent :

Honorable Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a ,
Montana
R o b e r t M . McCarthy, County A t t o r n e y , B u t t e , Yontana
P a t r i c k Flemina a r g u e d , Chief Deputy County A t t o r n e y ,
B u t t e , Montana
Ross Richardson a r g u e d , Deputy County A t t o r n e y , B u t t e ,
Montana

Submitted: February 27, 1934

Decided : June 4 , 1984

Filed : 8.N 4 1984
**

--
Clerk
Mr. Justice 1,. C. Gulbrandson delivered the Opinion of the
Court.
Defendant Chester Bauer appeals from his convictions in
the District Court of the Second Judicial District, Silver
Bow County, on charges of sexual intercourse without consent
and aggravated assault. We affirm.
On January 26, 1983, D. K. was forcibly raped at knife
point in her Butte, Montana, home. The rapist, identified by
D. K. as the defendant, Chester Bauer, had come to the home

in the late afternoon inquiring as to whether D. K. and her
husband wa-nted to sell their boat. Apparently Bauer had
visited. the couple about ten days earlier to inquire about
the same boat. On the day of the rape, Bauer asked D. K.,
who was home with her children, for a piece of paper to write
down information about the boat. She went to the kitchen,
and he followed. When she turned. toward him, Bauer
brandished a knife. The children were ushered into their
rooms, and Bauer took D. K. into her bedroom and raped her.
After the rape and. Bauer's departure from the home,
D. K. called the police. Detectives Dave Gertz and Tom Green
arrived at the scene, seized all the bedding from the bed
where the rape had taken place, a.nd escorted D. K. to the
hospital where the staff acquired pubic hair and blood sa.m-
ples and took vaginal swabs to secure semen samples. The
samples were tested by serologist Julie Long.
In the meantime, detectives were seeking the where-
abouts of the rapist. Within a week of the incident, the
investigation began focusing on Chester Bauer. Detective
Gertz approached Bauer on February 2 and asked him if he
would agree to have a current photograph taken so that police
could update their mugbooks. Bauer, who had had a previous
encounter with the police, agreed. The police used the new
photograph and an 01-d one, taken in 1977, to construct two
separate photographic lineups. Rauer's picture appeared in
both line-ups, and his pictures were the only ones bearing
the words "Police Dept. Butte, Montana.l f
D. K. was called in to see if she could identify her
attacker from the line-ups. Her husband was asked to see if
any of the "suspects" matched the description of the man who
had come to the home asking about the boat. D. K. was unable
to make a positive identification of her attacker, but showed
an interest in both photographs of Bauer. The husband made a
positive identification of Bauer as the man who had come to
the home about ten days before the rape.
On February 22, Bauer voluntarily consented to appear
in a physical line-up. According to Detective Gertz, the
line-up consisted of six white males, all- of whom had similar
physical characteristics. No photograph of the line-up was
taken because the police camera was unavailable. At the
line-up, D. K. made an immediate positive identification of
Bauer as the man who had raped her. During the trial, she
again identified him as the rapist.
Bauer was charged with sexual intercourse without
consent and aggravated a-ssault, and was convicted of both
crimes. A motion for new trial was denied. From the jury
verdict and denial of the motion for new trial, Bauer ap-
peals, raising four issues:
( I ) Whether the photographic 1-ine-upswere "impermissi-

bly suggestive" and gave rise to an "irreparable
misidentification" at the subsequent physical line-up and at
trial?
 (2) Whether the expert testimony of serologist Julie
Long was more prejudicial than probative and therefore should
have been excluded?
(3) Whether the trial. court erred by not striking
Detective Gertz's testimony regarding Bauer's spontaneous
remarks made at the time of his a.rrest?
(4) Whether a juror's failure during voir dire to
disclose her family relationship to a Butte-Silver Bow jail-or
severely impaired Bauer's right to a fair and. impartial jury?
Collateral fa.cts relevant to each issue but not men-
tioned previously are set farth in the discussion below.

WHETHER THE PHOTOGRAPHIC LINE-UPS WERE "IMPERMISSIBLY SUGGES-
TIVE" AND GAVE RISE TO "IRREPARABLE MISIDENTIFICATION" AT THE
- ---- 7-

SUBSEQUENT PHYSICAL LINE-UP - - TRIAL?
AND AT
Prior to trial, the court granted Eauer's motion to
exclude evidence of the attempt at photographic identi fica-
tion of Bauer by D. K. The court denied a similar motion to
suppress evidence of the physical. line-up conducted February
22 and also denied a motion to prevent any in-court identifi-
cation of Bauer by D. K. or her husband. Rauer insists that
denial of these latter motions by the court was erroneous
because (1) the two photographic line-ups shown to D. K.
tainted her recollection of her attacker so as to interfere
with any subsequent identification; (2) the same arrays were
so suggestive and conducive to irreparable misidentificati.on
that any identification would be inherently unreliable; (3)
there is no reliable means of determining the fairness of the
physical line-up; and (4) any in-court identification would
have no source independent from the previous photographic and
physical line-ups. In essence, Bauer argues that the
identifications made at the physical line-up and during trial
are tainted by previous attempts at identification.
This Court follows a two-pronged test when deciding the
propriety of admitting evidence of an in-court identification
and/or the results of some prior line-up:
"First, [whether] ... the identifica-
tion procedure [was] impermissibly sug-
gestive; and second, if so, [whether]
... under the total-ity of the circum-
stances [the procedure had] ... such a
tendency to give rise to a substantial
likelihood of irreparable
misidentification that to allow the
witness to make an in-court identifica-
tion would violate due process. [Cita-
tions omitted.]" State v. Lara (1978),
179 Mont. 201, 205, 587 P.2d 930, 932.
See also Sta.te v. Herrera (l.982), 197 Mont. 462, 466, 643

Initially we decide whether the identification proce-
dures utilized in the case were "impermissibly suggestive."
With respect to the photographic a-rrays, we recognize that
only defendant Bauer's photographs bear the inscription,
"Police Dept., Butte, Montana." Nevertheless, the trial
court was not convinced, and neither are we, that this fact
alone amounts to impermissible suggestiveness. While it is
true that D. K. was present when her husband positively
identified Bauer as the man who had been a.t the family home
several days before the rape inquiring about the boat, it
must be emphasized that D. K. was unable to make a positive
identificati-on of Bauer from the photographic arrays. She
only "showed interest" in Bauer's pictures.
Insofar as the physical line-up is concerned, we again
find no evidence of impropriety. Detectives Gertz and Green
testified as to the procedures used in the 1-ine-up, and no
testimony was offered by Bauer or others to controvert the
Hon. L. C. G u l b r a n d s o n CORRECTION. In preparing this opinion for pub-
J u s t i c e , Supreme C o u r t lication, we noted in our verification of titles and
Room 436 J u s t i c e Bldg. citations the matters listed below. Corrections have
215 N o r t h S a n d e r s been made on our copy of the opinion.
H e l e n a , Montana 59620

A u g u s t 6 , 1984 ,'
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S t a t e v. Bauer. Nd 83-407, ,dune 4 , 1 9 8 4
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P a g e 1 2 , l i n e 5 -- 8 3 P.2d 886 s h o u l d r e a d 8 3 P. 886.
( A l s o c i t e d on 1 i n e - i - 4 , same p a g e ) .

Page 1 3 , l i n e 6 from bottom -- P e o p l e v. B o r e l l i s s h o u l d r e a d P e o p l e
v. B o r r e l l i .

WEST PUBLISHING COMPANY
Box 43526
St. Paul, MN 55164
observations made by the detectives. Therefore we are satis-
fied that the first prong of the Lara test has been met.
Even if we assume, for the purpose of argument, that Bauer's
concerns about suggestiveness have some credence, we find no
error in admitting evidence of the subsequent identifications
because, following the second prong of Lara, we conclude that
the photographic line-ups did not give rise to an irreparable
misidentification.
In State v. Higley (Mont. 1980), 621 P.2d 1043, 1049,
37 St. Rep. 1942, 1947, this Court identified the important
criteria for evaluating the likelihood of misidentification.
These factors, first set out by the United States Supreme
Court in Neil v. Biggers (1970), 409 U.S. 188, 199-200, 93
S.Ct. 375, 382, 34 L.Ed.2d 401, 411, are ( 1 ) opportunity of
the witnesses to view the criminal at the time of the crime;
( 2 ) the witness' degree of attention; (3) the accuracy of the

witness' prior description of the criminal; (4) the level of
certainty demonstrated by the witness at the confrontation;
and (5) the length of time between the crime and the
confrontation.
D. K. testified that Bauer was in her home from five to
ten minutes before he made his move. In Simmons v. United
States (1968), g-
U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247,
witness identification of a bank robber who was in the bank
for approximately five minutes was permitted, the Court
finding that the five minutes afforded witnesses ample oppor-
tunity to view the robbers. It should be emphasized that, in
the instant case, D. K. also took fleeting glances of her
attacker while the rape was taking place and while he forced
her to kiss him.
 Her degree of attention was also very high. The pair
stood and conversed about the boat before the attack. In the
bedroom, she was at first standing while facing him, kissing
him against her wil.]., and then was seated naked on the bed
facing him before the rape. It cannot be discounted that she
also answered the door seven to ten days before when he came
to inquire about the boat.
The record does not contain D. K.'s original descrip-
tion of the rapist. Nevertheless, defense counsel on cross-
examination alleged only one inconsistency between Rauer's
features and the description. The "inconsistency" was that
in her statement, D. K. stated that the attacker had "medium
brown" hair, and then on the stand said his hair appeared
"dishwater blonde. " Apparently all other features
described--height, weight, age, lack of distinctive facial
scars--matched those of the defendant.
The level of certainty demonstrated at the physical
line-up was uncontradicted. D. K. immediately identified
"No. 5" (Bauer) as soon as the curtain was opened. She never
wavered after all the "suspects" were required to approach
the glass (a two-way mirror) and speak phrases that were
spoken by the rapist.
The length of time between the rape and the physical
line-up was less than one month. The rape occurred on Janu-
ary 26, 1983, and the physical line-up was conducted on
February 22, 1983, with the defendant voluntarily present.
Considering the totality of the circumstances, we
cannot say that the photographic line-ups gave rise to an
"irreparable misidentification." The trial court did not err
by denying exclusion of evidence pertaining to the physical-
line-up and in-court identifications.
WHETHER THE EXPERT TESTIMONY - SEROLOGIST JULIE - -
OF LONG WAS
MORE PREJUDICIAL, THAN PROBATIVE AND THEREFORE SHOULD HAVE
REEN EXCLUDED?
Rule 702, Mont. R.Evid., allows introduction of "scien-
tific" evidence via the testimony of an expert witness if the
trial court concludes that the evidence will "assist the
trier of fact." Of course, any evidence that would be more
prejudicial to the defendant than probative of a relevant
issue would be inadmissible. This is Bauer's position re-
garding the testimony of the State serologist, Julie Long.
The serologist testified to the results of tests per-
formed on ( 1 ) D. K. 's stained underwear, (2) saliva and blood
samples taken from Bauer, D. K. and D. K. Is husband, (3) the
vaginal swabs taken at the hospital, and (4) the sanitary
napkin D. K. was wearin.g the day of the rape. The tests
identify various "genetic markers" that distinguish one
individual from another. The tests involved here identified
body substances as either semen or vaginal fluid, and also
identified blood types, PGM subtypes (an enzyme present in
all human cel1.s that has varying chemical characteristics--
e.g., subtypes), and "H" factors present in body fluids which
are secreted.
Long testified that the tests showed that the woman had
had sexual intercourse no longer than four to six hours
before the vaginal swabs were taken, a.nd that the intercourse
had been with a male secretor with blood type 0, and PGM
subtypes 1+1+. Rauer has blood type 0 , is a secretor, and
has PGM subtype 1+1+. The percentage of males with those
genetic markers is 7.15 percent. Bauer contends the "H"
factor (secretor status) should not be calculated into the
field statistic because D. K. was a secretor as well, and by
excluding that factor, the field expands to 19.8 percent of
the male population. Nevertheless, the fact remains that
Bauer is a secretor, and that should be relevant. Further-
more, D. K. 's husband, who had been at work all day January
26, the time of the rape, has blood type A, is a
non-secretor, and has a PGM subtype of 1+1-, different from
Bauer in all respects.
Rauer contends that the reasoning applied by the Court
of Appeals of New York in two cases, People v. Robinson
(1970), 27 N.Y.2d 864, 265 N.E.2d 543, 317 N.Y.S.2d 19 and
People v. Macedonio (1977), 42 N.Y.2d 944, 366 N.E.2d 1355,
397 N.Y.S.2d 1002, mandates that the expert testimony admit-
ted against him be excluded. In Robinson, supra, the New
York high court concluded that evidence of defendant's blood
type, introduced in a rape-murder case, was not probative in
view of the large portion of the general population having
the same blood type. The defendant's conviction was not
reversed, but only because other independent evidence point-
ing to his guilt was compelling. In Macedonio, supra, the
defendant's conviction was reversed because of the introduc-
tion of evidence of his blood type.
Robinson and Macedonio involved evidence of a blood
type in an area consisting of several million people with the
same blood type. In the immediate case, the evidence of
blood type, secretor status and PGM subtype correlates with
the significantly smaller population area of Silver Bow
County. Moreover, as in the Robinson case, there is other
independent evidence of Bauer's guilt. D. K. and her husband
made positive identifications implicatinq Bauer directly or
indirectly. Arnold Melnikoff, Bureau Chief of the State
Crime Laboratory, testified that pubic hair and head hair
found at the crime scene were simj-lar to Bauer's pubic and
head hair. Melnikoff estimated that the chances of another
person having the same type of pubic and head hair were one
in ten thousand. Finall-y, Eauerls alibi defense was discred-
ited by prosecutors. On balance, we conclude that th.e evi-
dence adduced through the testimony of Julie Long was
admissible.

WHETHER THE TRIAL COURT ERRED - -
BY NOT STRIKING DETECTIVE
GERTZ ' S TESTIMONY REGARDING - ' SPONTANEOUS REMARKS MADE
BAUER S
-
- - - - - HIS ARREST?
AT THE TIME OF
During his direct examination of Detective Gertz,
prosecuting attorney Patrick Fleming asked Gertz to explain
the events leading up to and including Bauer's arrest.
Fleming asked Gertz if Bauer had made any statements. De-
fense counsel objected on grounds of hearsay, but the court
was prepared to accept evidence of immediate statements under
the "excited utterance" exception to the hearsay rule. The
prosecuting attorney then asked Gertz if Eauer had said.
anything. According to Gertz, Rauerls statement upon learn-
ing that he was under arrest was "Which bitch did it?"
Defense counsel raised no immediate objection upon
hearing the statement, but later made a motion to strike
during her cross-examination of Gertz concerning the state-
ment. The motion was denied. On appeal, Bauer argues that
the trial court erred by not striking the statement.
In preparing for trial, defense counsel moved under
Sections 46-15-301, -302, and -303, MCA, to make discovery of
several items, including "copies of all written statements of
the Defendant or admissions of the Defendant taken at any
time ... " Defendant contends the remark in question was a
type of admission, and that it inferred fear of reprisal from
more than one woman. Defendant maintains the inference to
other women implied the existence of evidence of other acts
or wrongs which would have been inadmissible under State v.
Just (1979), 184 Mont. 262, 602 P.2d 957.
The inference in Bauer's argument is that the statement
may have been deliberately concealed. During oral argument
on appeal, this Court inquired into the State's knowledge of
the statement. Mr. Fleming, the chief prosecutor, indicated
that he had no knowledge of the statement prior to trial. He
said that Gertz was told to review his notes and reco1.l.e~-
tions and be prepared to answer questions about the investi-
gation and arrest. Gertz did not tell Fleming about the
statement, and Gertz indicated that defense counsel never
asked him about any statements made by Rauer immediately
following his arrest. The record supports Fleming's claim
that, once Gertz related Bauer's utterance, the State never
pursued the statement further. Neither Fleming nor his
co-counsel discussed the statement during closing arguments
to the jury. Both men focused only on the physical evidence,
identifications, and refutation of Bauer ' s alibi defense.
Only defense counsel dwelled on the statement during examina-
tion of witnesses and closing argument, by attempting to
prove that the statement had never been made. Indeed, Bau-
er's wife, who was present at his arrest, denied that the
statement had ever been made. Bauer's motion for new trial
was not based on the statement having been revealed.
Based on our examination of the record and considera-
tion of remarks made during oral argument, we are satisfied
that the prosecution neither deliberately concealed the
statement nor attempted to use jt as part of its case against
Bauer . Similarly, we are disinclined to review Bauer's
concerns about the statement on appeal, primarily because the
motion to strike the statement was untimely made. In
Poindexter & Orr Livestock Co. v. Oregon Short Line Ry.
(1905), 33 Mont. 338, 83 P.M 886, under facts very similar
to those involved here, opposing counsel did not move to
strike objectionable statements until after cross-examination
of the witness who made the statements was completed. We
held that " ' [t]he practice, whether - civil - criminal
in or
cases, of deliberately permitting evid-ence to be given with-
out objection in the first instance, and then moving to
strike it on grounds which might readily have been availed of
to exclude it when offered, is not to be tolerated.'"
Poindexter, supra, 33 Mont. at 341, 83 ~.jkt( 887. (citation
at
omitted. ) (Emphasis added. ) This proposition was most
recently reaffirmed in State v. Cripps (19781, 177 Mont. 410,
582 P.2d 312, a case involving incriminatj-ng statements not
revealed in a discovery order but not objected to until well
after their introduction into evidence.
Because defense counsel's motion to strike in the
immediate case was untimely made, we conclude that the Dis-
trict Court did not err in denying the motion. Even if we
were to focus on the allegations of prejudice arising from
the making of the statement, we would still conclude that
defendant Bauer is not entitled. to relief. As we emphasized
in State v. Wells (Mont. 1983), 658 P.2d 381, 40 St.Rep. 127:
"In a criminal case, if prejudice is alleaed, it
will not be presumed but must be established for
the record that a substa.ntia1 right wa,s denied.
State v. Dupre (1982), Mont., 650 P.2d 1381, 1386,
39 St.Rep. 1660, 1666. See also section 46-20-7O1,
MCA. The test that this Court had adopted in
determining whether the prejudicial error requires
a reversal is whether there is a reasonable possi-
bility that the inadmissible evidence might have
 contributed to the conviction. State v. Lave,
supra, 174 Mont. at 407, 571 P.2d at 101; See also
Chapman v. California (1967), 386 U.S. 18, 24, 87
S.Ct.824, 828, 17 rJ.Ed.2d 705, 710; Kotteakos v.
United States (1946), 328 U.S. 750, 765, 66 S.Ct.
1239, 1248, 90 L.Ed. 1557, 1566-1567." 658 P.2d at
388, 40 St.Rep. at 133.
Here, in light of the other evidence conclusively establ-ish-
ing Bauer's guilt, we find that he would have been convicted
even if the statement had not been made.

WHETHER. - JUROR'S FAILURE DURING - -DIRE TO DISCLOSE HER.
A VOIR -
FAMILY RELATIONSHIP - - BUTTE-SILVER BOW JAILOR SEVERELY
TO A
IMPAIRED BAUEP.'S RIGHT - -A -
TO - FAIR AND IMPARTIAL JURY?
Members of the jury panel were asked whether any of
them ". . . (knew) any of the employees at the Butte-Silver
Bow law enforcement agency," and then were asked whether any
of them were "related" to or "knew closely" anyone else who
was employed by a law enforcement agency "other than (in
Butte)." Bauer contends he was prejudiced when juror Cathy
Wa.lsh d.id not disclose that her brother-in-law is one of the
civilian jailors at the Butte-Silver Bow -jail. Bauer ' s
motion for new trial wa.s based solely on this failure to
disclose. The trial court denied the motion.
Other jurisdictions have held that nondisclosure of
information requested by jurors is - grounds for reversal
not
unless the non-disclosure amounts to "intentional conceal-
ment." See, e.g., People v. ~unoyair (1983), Colo.
, 660 P.2d 890; People v. ~orelli# (1980), Colo.App.
, 624 P.2d 900; State v. Hicks (1968), 75 Wash.2d 73, 448
P.2d 930. Here, there is nothing to show that Walsh inten-
tionally concealed the fact of her brother-in-law's employ-
ment, and there is no allegation that Walsh ever spoke with
him about the case, or displayed hostility or bias toward
Bauer. She admitted the relationship immediately after being
contacted by defense counsel after trial. Without more,
Walsh's omission appears to have been inadvertent and not
intentional. The trial court therefore did not err in deny-
ing Bauer's motion for a new trial.
The convictions of Chester Bauer for the crimes of
sexual intercourse without consent and aggravated assault are
affirmed.

We concur:

?hae
k d Q Q
Chief Justice