No. 88-33
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
EVERETT FRANCIS POWERS,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Mark Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Deirdre Caughlan; Dunlap & Caughlan, Butte, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Joe Roberts, Asst. Atty. General, Helena
Robert M. McCarthy, County Attorney, Butte, Montana
Brian Holland, Deputy County Atty., Butte, Montana
-
Submitted on Briefs: June 9, 1988
Decided: July 19, 1988
Filed: m 1 9 lg8$'
L
a *,
d Clerk
Mr. Chief Justice J . A. Turnage delivered the Opinion of the
Court.
Defendant Powers appeals his September 17, 1987, jury
convictions in the Second Judicial District Court, Silver Bow
County, for robbery, sexual assault and sexual intercourse
without consent by accountability. Powers was sentenced to
ten years on each of the three counts to be served consecu-
tively. Defendant was designated a dangerous offender.
We affirm.
Powers raises three issues on appeal:
1) Did the District Court err in not allowing a defense
witness to testify as to a hearsay statement made by an
unavailable accomplice and err in allowing a prosecution
witness to testify as to a hearsay statement made by the
unavailable accomplice?
2) Was there adequate foundation and identification of
a knife, obtained from the unavailable accomplice, which was
used to threaten the victim?
3) Does substantial evidence support the conviction?
The twenty-eight-year-old male victim, L.H., had a
casual friendship with defendant Powers. On the evening of
April 17, 1987, Powers introduced L.H. to Paula Butler at
Paula's apartment. Later in the evening Paula began to make
sexual advances toward L.H. Taken aside, Powers told L.H.
that Paula wanted to have sex with L.H. while Powers watched.
After L.H. objected, Powers became physically abusive toward
L.H. Paula approached Powers and L.H. with a knife, which
she gave to Powers. Upon being threatened with the knife,
L.H. did as he was told and undressed. Then Powers and Paula
undressed. During the evening, L.H. was forced at knifepoint
to perform sexual acts upon the defendant and Paula. Powers
continued to be physically abusive toward L.H. The defendant
and Paula ended their assault by sexually abusing L.H. with a
broom stick.
After these assaults, two people, who later testified
at the trial, stopped by Paula's apartment for about ten to
fifteen minutes. Each testified as to seeing a naked man
standing in the corner of the bedroom shaking and identified
the man as L.H. They also testified as to seeing Powers
strike the man. After they left, defendant and Paula took
the naked L.H. to L.H. ' s apartment. Paula waited in the car
while Powers and L.H. went inside. Powers proceeded to take
some of L.H.'s belongings. Powers then allowed L.H. to put
on a pair of pants. The two left the apartment and returned
to the car. While Powers was talking with Paula, L.H.
escaped and ran barefoot, wearing only a pair of pants, to
the police station about two blocks away. L.H. made a state-
ment, was taken to the hospital, examined by a physician and
admitted.
On May 2, 1987, Powers was charged with felony counts
of assault and felony robbery and was later charged with
sexual assault, sexual intercourse without consent by ac-
countability and deviate sexual conduct without consent.
Paula was also charged with several criminal offenses but
fled the jurisdiction and was unavailable at the time of
trial.
Issue 1: Hearsay statements attributed to Paula Butler.
Defendant claims that the District Court erred in
admitting into evidence a hearsay statement of Paula Butler
offered by the prosecution and in denying the defense the
admission of another statement attributed to Paula Butler.
Paula Butler, an alleged accomplice in the commission
of the acts for which the defendant has been convicted, was
unavailable as a witness in defendant's trial. A warrant for
the arrest of Paula Butler was outstanding and a subpoena
directed to her was returned with information that she could
not be found at the time of trial.
Detective Albert Johnson, who was investigating the
offenses committed upon L.H., had occasion to be at Paula
Butler's apartment. He testified:
I asked Paula Butler if she would give
up the knife that was alleged to have
been used in this crime. At that time
she pointed to the sink cupboard in the
kitchen and says "that is it". I at
that time stated, "are you sure that is
the knife" because I thought it was
described differently but she said,
"yes, that is the knife."
Rule 804(b), M.R.Evid., in pertinent part, provides:
The following are not excluded by the
hearsay rule if the declarant is un-
available as a witness:
(3) Statement against interest. A
statement which was at the time of its
making so far contrary to the declar-
ant's pecuniary or proprietary interest,
or - - tended to-subject - - -
so far him to civil
or criminal liaTility
- ... that a
reasonable man in his position would not
have made the statement unless he be-
lieved it to be true. .. [Emphasis
added. ]
The statement attributed to Paula Butler, the alleged
accomplice, tended to subject her to criminal liability and
was therefore admissible under the hearsay exception provided
in Rule 804 (b), M. R. Evid. There was no error in admitting
this testimony.
The hearsay exception sought by the defendant had an
entirely different factual base. Defendant offered to intro-
duce testimony of Mark Henry for the purpose of establishing
that Henry had a conversation with Paula Butler wherein she
allegedly stated that Powers was not a participant in the
criminal activities for which he was charged.
Rule 804 (b)(3), M.R.Evid., goes on to provide:
... A statement tending to expose the
declarant to criminal lzbility and
offered to exculpate the accused - -
is not
-
admissibE unless corroborating circum-
stances clearlv indicate the trustwor-
thiness of the statement.
supp1ied.T -
[Emphasis
The offered testimony did not qualify as an exception
to hearsay. The statement, although tending to expose the
declarant to criminal liability, was offered to exculpate the
accused and no corroborating circumstances were offered
clearly indicating the trustworthiness of the statement.
Although State v. LaPier (1984), 208 Mont. 106, 676
P.2d 210, discusses Rule 804(b) ( 5 ) , M.R.Evid., we find this
case persuasive as to the question of abuse of discretion
with relation to guarantee of trustworthiness concerning
offered hearsay testimony under Rule 804(b) (3).
There was no abuse of discretion and no error in the
District Court's refusal to admit this testimony.
Issue 2: Foundation and identification of the knife.
The investigating police officer, during a warranted
search of Paula Butler's apartment, asked ~ a u l ato give him
the knife which was alleged to have been used against the
victim, L.H. The officer testified that Paula Butler handed
him a knife and said "that is it." The search warrant sought
"the brown handled, serrated edged knife [L.H.] was threat-
ened with." Paula Butler produced a smooth-edged knife.
The defendant claims that the knife produced at trial
was not what its proponent claimed, nor did it bear the
"distinctive characteristics and the like," as required by
Rule 901 (b)(4), M.R.Evid., or some form of identification
required for the admission of evidence at trial.
Rule 901, M.R.Evid., states in pertinent part:
(a) General provision. The requirement
of authentication or identification as a
condition precedent to admissibility is
satisfied by evidence sufficient to
support a finding that the matter in
question is what its proponent claims.
(b) Illustrations. 9 way of illustra-
tion only, - - 3 way of-limitation,
and not
the following are examplecof authenti-
cation or identification conforming with
the requirements of this rule:
(1) Testimony of witness with knowledge.
Testimony that a matter is what it is
claimed to be.
(4) Distinctive characteristics and the
like. Appearance, contents, substance,
internal patterns or other distinctive
characteristics, taken in conjunction
with circumstances. [Emphasis added.]
We hold that the District Court properly admitted the
knife into evidence for two reasons.
First, defendant Powers does not have standing to
challenge the seizure of the knife. The knife was obtained
from Paula Butler at her apartment pursuant to a valid search
warrant. As required by State v. Gonzales (Mont. 1988) 751
P.2d 1063, 1064, 45 St.Rep. 579, 580, "[aln individual must
have either a property or possessory interest in the automo-
bile searched or seized by the police to assert standing for
violations of the Fourth Amendment to the United States
Constitution," citing Rakas v. Illinois (1978), 439 U.S. 128,
Powers has not demonstrated a property or possessory interest
in the apartment searched or in the knife seized. Thus,
Powers has no standing in this issue.
Second, the differences between the knife described in
the search warrant and the knife obtained and admitted into
evidence is not adequate to deny the admission of the knife.
The victim, L.H., identified State's exhibit 3 as the knife
with which he was threatened. The investigating police
officer testified as to the identification of the knife made
by Paula Butler when she said "that is it." We hold this
testimony sufficiently identified the knife within Rule 901,
M.R.Evid., requirements.
Issue 3. Substantial Evidence.
On several occasions and most recently in State v.
Oliver (Mont. 1987) 742 P.2d 999, 44 St.Rep. 1567, and State
v. Cyr (Mont. 1987) 746 P.2d 120, 44 St.Rep. 2013, this Court
has held:
The standard for review of the suffi-
ciency of the evidence is: "Whether,
after viewing the evidence in the light
most favorable to the prosecution, any
rational trier of fact could have found
the essential elements of the crime
beyond a reasonable doubt. " Jackson v.
Virginia (1979), 443 U.S. 307, 319, 99
S.Ct. 2781, 2787, 61 L.Ed.2d 560, 573.
[Oliver, 742 P.2d at 1002, and C y r , 746
P.2d at 122.1 We defined substantial
evidence as "such relevant evidence as a
reasonable mind might accept as adequate
to support a conclusion. " State v.
Kutnyak (Mont. 1984), 685 P.2d 901, 910,
41 St.Rep. 1277, 1289. [Oliver, 742
P.2d at 1002.1
Powers contends that the evidence did not support a
guilty verdict on the counts of robbery, sexual assault and
sexual intercourse without consent by accountability. We
hold there is more than substantial credible evidence to
allow the jury to find the defendant guilty beyond a reason-
able doubt.
The testimony of the victim, L.H., was corroborated by:
(1) the two people who came by Butler's apartment during the
assault upon L.H.; (2) the officer who first interviewed L.H.
at the police station immediately after the assault; ( 3 ) the
physician who examined L.H.; and (4) the two investigating
detectives who searched Butler's and Powers' apartments.
After viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.
The convictions are affirmed.
Chief Ju'stice
We concur: