NO. 89-93
I N THE SUPREME COURT OF THE STATE O F MONTANA
1989
STATE O F MONTANA,
p l a i n t i f f and R e s p o n d e n t ,
-vs-
WILLIAM MARTIN H I B B S ,
D e f e n d a n t and A p p e l l a n t .
I .
. 3 .
APPEAL FROM: ~ i s t r i c C o u r t of t h e Second ~ u d i c i a l~ i s t s i c t , r ~
t ,
I n and f o r t h e C o u n t y of S i l v e r B o w , -- 3 ;
(
T h e H o n o r a b l e A r n o l d O l s e n , Judge presiding-,
COUNSEL O F RECORD:
For Appellant:
Deirdre Caughlan; Dunlap & Caughlan, B u t t e , Montana
For R e s p o n d e n t :
H o n . M a r c ~ a c i c o t ,A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
K a t h y Seeley, A s s t . A t t y . G e n e r a l , H e l e n a
R o b e r t M. M c C a r t h y , C o u n t y A t t o r n e y , B u t t e , M o n t a n a
B r a d Newman, D e p u t y C o u n t y A t t y . , B u t t e
S u b m i t t e d on ~ r i e f s : A u g . 10, 1989
~ e c i d e d : S e p t e m b e r 26, 1989
e
~usticeWilliam E. Hunt, Sr., delivered the Opinion of the
Court.
A jury empaneled in the ~istrict Court of the Second
Judicial District, Silver Bow County, found William Martin
~ibbs, defendant, guilty under 5 45-5-502(1) and (3), MCA, of
three counts of sexual assault. The ~istrict Court sentenced
Hibbs to twenty years in the Montana State Prison on each
count to be served consecutively. He was also found to be a
persistent felony offender under 5 46-18-501 (1) and (2), MCA,
and was sentenced to fifteen years in the Montana State
Prison to be served consecutively with the term imposed on
count three. Hibbs appeals. We affirm.
The following issues are raised on appeal:
1. Whether the District Court abused its discretion
when it offered and admitted an exhibit on its own motion.
2. Whether the District Court properly allowed the
prosecution to use leading questions with two child
witnesses, ages six and seven, on direct examination.
3. Whether the District Court erred in allowing three
prosecution witnesses to testify to out-of-court statements
made to them by four child witnesses.
On July 13, 1988, a six-year-old girl, referred to as
Misty, told her mother that she, her sister, referred to as
April, age ten, and two neighbor girls, referred to as Carol,
age six, and Carol's sister, referred to as Crystal, age
seven, had been sexually assaulted the previous day at the
Hibbs' residence. April's mother reported the incident to
the police.
On July 14, 1988, a social worker, employed by the
Department of Family Services, Butte, Montana, interviewed
the four girls in which the girls claimed that Hibbs forced
them to touch his penis with their hands and mouths and that
he touched their vaginas with his hands. The four girls also
claimed that Hibbs prevented them from leaving his residence
by wedging knives into his door which prevented it from being
opened. The four girls stated that Hibbs gave them some
change after sexual contact had ceased. Two of the girls
claimed that Hibbs warned them not to tell their parents
about the contact or the girls would go to jail. Another
girl claimed that Hibbs threatened to kill her if she told
her parents about the contact.
Also, on July 14, 1988, a Butte police detective took a
voluntary, recorded statement from Hibbs after Hibbs was
advised of his Miranda rights and after he signed and
initialed a waiver form acknowledging his rights. Hibbs
stated that he was 58 years old. He further stated that
while he did have sexual contact with several juvenile girls
from the neighborhood, it was the girls who initiated the
contact by unzipping his pants and then fondling and sucking
his penis. Hibbs claimed that this occurred while he was
asleep and incapacitated by alcohol. At trial, Hibbs
testified that as soon as he became aware of what was
happening, he ran into the bathroom and Crystal followed him
and demanded money.
On August 4, 1988, Hibbs was charged by information with
four counts of sexual assault committed against four
juveniles in violation of S 45-5-502(1) and (3), MCA. On
January 3, 1989, a jury trial commenced. witnesses for the
prosecution included the four girls, ~ p r i l ,Misty, Crystal
and Carol, their mothers, and ~ e r r iWaldorf, a social worker
who interviewed the children following the reported assaults.
On January 4, 1989, the jury found Hibbs guilty on three
of the four counts of sexual assault. On February 3, 1989,
Hibbs was sentenced to twenty years in the Montana State
Prison on each count to be served consecutively and fifteeen
years in the Montana State prison as a persistent felony
offender to be served consecutively with count three. Hibbs
was designated a dangerous offender for purposes of parole
eligibility under S 46-18-404, MCA, and was given credit for
time served.
The first issue raised on appeal is whether the District
Court abused its discretion when it offered and admitted an
exhibit on its own motion. Specifically, the court ordered
the Miranda waiver form admitted into evidence after the
prosecution had fully cross-examined Hibbs on the document.
The prosecutor stated that he did not intend to enter the
form into evidence.
Hibbs argues that by ordering the admission of the form
into evidence, the court, in effect, was commenting on the
evidence in violation of Rule 614(b), M.R.Evid., which
provides :
The court may interrogate witnesses, whether called
by itself or a party; provided, however, that in
trials before a jury, the court's questioning must
be cautiously guarded so as not to constitute
express or implied comment.
It is true that under the rule, the court may examine
witnesses to fully elicit or clarify facts. See State v.
arti in (Mont. 1987), 736 P.2d 477, 44 St.Rep. 804; State v.
Bier (1979), 181 Mont. 27, 591 P.2d 1115. The authority for
the court to call or examine witnesses is discretionary and
will not be disturbed absent a showing of abuse of discretion
or manifest prejudice. State v. Hart (1981), 625 P.2d 21.
Nonetheless, the issue raised is not the examination of
witnesses but the actual admission of an exhibit by the
court's own order. There is no provision under Rule 614,
M.R.Evid., nor anywhere in Montana law, that directly permits
the court to offer its own exhibits into evidence. Here, the
exhibit had been read into evidence in full to the jury. It
could hardly constitute eror.
If it were error, it was harmless. Section 46-20-701,
MCA, provides in part:
No cause shall be reversed by reason of any error
committed by the trial court against the appellant
unless the record shows that the error was
prejudicial.
Under State v. Gray (1983), 207 Mont. 261, 268, 673 P.2d
1262, 1266, we stated:
The test of prejudicial error requiring reversal is
whether there is a reasonable possibility the
inadmissible evidence might have contributed to the
conviction. (Citations omitted.)
The next issue raised on appeal is whether the District
Court properly allowed the prosecution to use leading
questions with two child witnesses, ages six and seven, on
direct examination.
Rule 611 (c), M. R.Evid., provides in pertinent part:
Leading questions should not be used on the direct
examination of a witness except as necessary to
develop his testimony.
~ i b b s objected to the leading nature of the
prosecution's direct examination of two child victims and
argues that the prosecution failed to establish that leading
questions were necessary to develop the witnesses' testimony.
However, in ~ a i l e yv. Bailey (1979), 184 Mont. 418, 603 P.2d
259, 261, this Court set forth an exception to the general
rule against leading questions on direct examination where a
child witness is involved. The rationale behind the
exception is that questioning a child is a difficult task.
See State v. Eiler (Mont. 1988), 762 P.2d 210, 45 St.Rep.
1710; State v. Howie (Mont. 1987), 744 P.2d 156, 44 St.Rep.
1711. As this Court stated in Eiler, 762 P.2d at 215 whether
or not leading questions will be allowed is a matter for the
trial court's discretion. See also Bailey, 603 P.2d at 261.
The District Court need not make express findings that
leading questions are necessary. We hold that the
questioning was proper.
The last issue raised on appeal is whether the ~istrict
Court erred in allowing three prosecution witnesses to
testify as to out-of-court statements made to them by four
child witnesses.
In this case, after the victims testified, the
prosecution called three witnesses, Chrystal's mother, April
and Misty's mother and a social worker, to testify. The
three witnesses testified as to what the children had told
them concerning their activities with Hibbs. The testimony
of the three witnesses was consistent with the testimony of
the four girls. Hibbs objected to the testimony as hearsay.
Rule 801(d) (1)(B), M.R.Evid., provides in part:
A statement is not hearsay if:
... consistent with [the witnesses] testimony and
is offered to rebut an express or implied charge
against him of subsequent fabrication, improper
influence or motive.
~ i b b sasserts that because the credibility of the child
witnesses was never attacked at trial, the rule is
inapplicable. However, as the prosecution notes, defense
counsel placed the credibility of the child victim's in issue
during opening by stating:
The issue .. . is one of truthfulness. It is one
of credibility . . . [the prosecution] has told you
that he will call certain witnesses . .
. [that]
may have some ulterior motives of testifying
against Bill ...
Hibbs. Be sure ... [the
children] know the difference between truth and
fantasy; between the truth and a lie. (~mphasis
ours. )
Further, during cross-examination, defense counsel questioned
the children repeatedly over whether they knew what a lie was
and whether they had ever lied. In asking such questions,
defense counsel placed the credibility of the child witnesses
in issue.
In State v. Mackie (19811, 622 P.2d 673, 676, where
similar statements were allowed into evidence, we held:
These circumstances clearly qualify the counselor's
testimony as nonhearsay under Rule
.
801 (d)(1)(B) . . . The quoted declarant (rape
victim) testified at trial, she was subject to
cross-examination concerning her statement, the
counselor's statement is consistent with the
victim's testimony, and it rebuts an implied charge
of fabrication.
See also State v. Anderson (1984), 211 Mont. 272, 289-290,
686 P.2d 193, 202-203. Here, it was proper for the
prosecution to rebut the attack on the credibility of the
children under Rule 801(d)(l)(B), M.R.Evid., by calling
witnesses to testify as to prior consistent statements of the
children.
Affirmed. /