No. 88-311
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
IN THE MATTER OF THE PETITION
FOR POST-CONVICTION RELIEF OF
JAMES M. BRODNIAK,
Petitioner and Appellant,
-VS-
STATE OF MONTANA,
Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable James B. Wheelis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William Boggs argued, Missoula, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Dorothy McCarter argued, Asst. Atty. General, Helena
Robert L. Deschamps, 111, County Attorney, iss sou la,
Montana
Decided: September 14, 1989
Justice Fred F. Weber delivered the Opinion of the Court.
James M. Brodniak appeals from an order of the Fourth
Judicial District Court, Missoula County, denying his peti-
tion for post-conviction relief. We affirm.
We phrase the issues as follows:
1. Did the Montana Supreme Court apply the proper
harmless error test during its review of Mr. Brodniak's
criminal trial?
2. Does the harmless error analysis applied by the
Montana Supreme Court in its review of Mr. Brodniak's crimi-
nal trial contravene the due process clause requirement that
guilt be proven beyond a reasonable doubt?
3. As a matter of law, can evidence be found to be
overwhelming for purposes of harmless error analysis where
one or more members of the appellate tribunal are not con-
vinced that it is?
A detailed description of the events leading to James M.
Brodniak's conviction of sexual intercourse without consent
can be found in our opinion considering his direct appeal,
State v. Brodniak (1986), 221 Mont. 212, 718 P.2d 322.
Therefore, we only briefly describe the facts here.
In the early morning hours of May 10, 1984, D.P. left a
Missoula bar with James M. Brodniak. The couple purchased a
six-pack of beer and proceeded to drink and talk in a dormi-
tory parking lot at the University of Montana. At trial,
D.P. testified that, after a while, she asked Mr. Brodniak to
take her home. Instead, he took her outside of Missoula to
Pattee Canyon, locked the car doors, grabbed her hair, and
forced her to engage in sexual acts. Mr. Brodniak, on the
other hand, testified that he took D.P. to Pattee Canyon
because she suggested that they go to a wooded area where she
could to to the bathroom. He claimed that they then engaged
in consensual sexual acts. He admitted, however, that toward
the end of the incident he became violent, pulling D.P.'s
hair and choking her.
After the incident, D.P. was examined by a medical
doctor. The doctor testified that the injuries suffered by
D.P. were probably not a common result of consensual sexual
intercourse. A nurse at the hospital observed that a "gross
amount" of hair came out while D.P. combed her hair. The
bureau chief of the Montana Criminalistic Laboratory testi-
fied that several long hairs found in Mr. Brodniak's car
belonged to D.P. and that most of her hair had been pulled
from her head with painful force.
The psychologist who examined D.P. testified that she
had an IQ of approximately 78. He also testified that her
psychological condition was consistent with all of the symp-
toms of rape trauma syndrome (RTS) . In addition, he gave
statistical testimony on the percentage of false accusations
in rape cases and testified that he did not believe that D.P.
was malingering.
After a four-day trial, Mr. Brodniak was convicted by a
jury of the charge of sexual intercourse without consent. He
was designated a dangerous offender and sentenced to 20 years
in the Montana State Prison.
In Brodniak, we affirmed the conviction. In our opinion
we discussed the admissibility of RTS testimony and concluded
that, although RTS testimony is generally admissible, it was
error for the State's expert witness to testify as to his
belief that D.P. was not malingering and to the statistical
percentages of false accusations. We stated that such testi-
mony was "improper comment on the credibility" of D.P.
Brodniak, 221 Mont. at 222, 718 P.2d at 329. We held, howev-
er, that the admission of such testimony constituted only
harmless error because the State's evidence against Mr.
Brodniak and his own admissions were overwhelming. Brodniak,
221 Mont. at 223, 718 P.2d at 329.
We also determined that three other errors were commit-
ted during the criminal trial, but refused to reverse the
conviction, holding that each of the additional errors did
not prejudice Mr. Brodniak. Mr. Brodniak's petition for
rehearing, which was summarily denied, was based on the
doctrine of cumulative error, not on the issue of the stan-
dard of review employed in determining harmless error.
On January 16, 1987, Mr. Brodniak filed a habeas corpus
petition in the United States District Court for the District
of Montana, Missoula Division, Brodniak v. Risley, cause no.
CV-87-29-MI alleging that the Montana Supreme Court had
applied an incorrect test in its determination of harmless
error. In response, the State alleged that Mr. Brodniak had
not exhausted his state remedies because he had not presented
that precise question to the state courts for review. Conse-
quently, the U.S. District Court dismissed the habeas corpus
proceeding without prejudice.
Mr. Brodniak then filed a petition for post-conviction
relief with the Fourth Judicial District, Missoula County.
After a hearing, the District Court denied the petition. Mr.
Brodniak appealed to this Court.
Did the Montana Supreme Court apply the proper harmless
error test during its review of Mr. Brodniak's criminal
trial?
Mr. Brodniak contends that the psychologist's comment on
D.P.'s credibility violated his right to jury trial guaran-
teed by the Sixth Amendment to the Constitution of the United
States. He argues that expert testimony regarding a wit-
ness's credibility invades the province of the jury, amount-
ing to a Sixth Amendment violation. Mr. Brodniak contends
that the federal test of harmless error, rather than the
state test, must therefore be applied to his conviction,
citing Chapman v. California (1967), 386 U.S. 18, 21, 87
S.Ct. 824, 826-827, 17 L.Ed.2d 705, 709.
Mr. Brodniak cites United States v. Azure (8th Cir.
1986), 801 F.2d 336, to support his contention that his Sixth
Amendment right was violated. It is true that in Azure the
Eighth Circuit held that, in a trial involving a sex crime
against a minor, a pediatrician's comment on the believabili-
ty of the complaining witness constituted reversible error.
That court however, made no reference to the Sixth Amendment.
Rather, its analysis centered on the Federal Rules of Evi-
dence. In a more recent case the Eighth Circuit explicitly
stated that the propriety of expert testimony on general
patterns of credibility among children reporting sexual abuse
is essentially a matter of state law. Adesiji v. Minnesota
(8th Cir. 1988), 854 F.2d 299, 300. Research has disclosed
no cases holding that an expert's comment on witness credi-
bility violates the Sixth Amendment. Rather, other courts
have analyzed this type of error pursuant to rules of evi-
dence, and by applying a state harmless error test. - See,
e.g. Tevlin, 715 P.2d at 341-342; People v. Oliver (Colo.
1987), 745 P.2d 222, 225; State v. Chul Yun Kim (N.C. 1986),
350 S.E.2d 347, 352.
In Montana, an error of state law will be deemed harm-
less "unless the record shows that the error was prejudi-
cial." Section 46-20-701, MCA. "The test of prejudicial
error requiring reversal is whether there is a reasonable
possibility the inadmissible evidence might have contributed
to the verdict." State v. Gray (1983), 207 Mont. 261, 268,
673 P.2d 1262, 1266; State v. Gray (1983), 202 Mont. 445,
449-450, 659 P.2d 255, 257; State v. Lave (1977), 174 Mont.
401, 407, 571 P.2d 97, 101.
Mr. Brodniak devotes considerable argument to the feder-
al harmless error test. We note that the federal harmless
error test is essentially the same as that above enunciated
for Montana. The United States Supreme Court stated the test
for federal constitutional error in Fahy v. Connecticut
(19631, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d
171, 173. The Court later restated this test in Chapman,
noting however, that it did not change the Fahy test:
There is little, if any, difference between our
statement in Fahy v. Connecticut about "whether
there is a reasonable possibility that the evidence
complained of might have contributed to the convic-
tion" and requiring the beneficiary of a constitu-
tional error to prove beyond a reasonable doubt
that the error complained of did not contribute to
the verdict obtained. We, therefore, do no more
than adhere to the meaning of our Fahy case when we
hold, as we now do, that before a federal constitu-
tional error can be held harmless, the court must
be able to declare a belief that it was harmless
beyond a reasonable doubt.
Chapman, 386 U.S. at 24.
The essential question is whether there is a reasonable
possibility that the inadmissible evidence might have con-
tributed to the conviction.
Before discussion of this issue, we first note that Mr.
Brodniak is asking this Court to reconsider an issue which
was already decided in the original appeal of Brodniak where
this Court stated:
This Court, however, will not reverse a judgment of
conviction for harmless error, and the question as
to whether a particular error is harmful or harm-
less depends on the facts of the case under review.
(Citation omitted.) In the instant case we hold
that the admission of Walters' testimony, above
quoted, was harmless error. A review of the record
of this case reveals that the physical evidence
against Brodniak and his own admissions that he
resorted to violence were so overwhelming that
admission of the RTS testimony did not affect his
substantial rights.
Brodniak, 221 Mont. at 223, 718 P.2d at 329.
The overwhelming evidence rule is one method used by
this Court to ascertain whether there is a reasonable possi-
bility that the inadmissible evidence contributed to the
verdict. State v. McKenzie (1980), 186 Mont. 481, 533, 608
P.2d 428, 458, cert. denied, 449 U.S. 1050 (1980); accord,
Tevlin v. People (Colo. 1986), 715 P.2d 338, 342. Also, when
assessing the prejudicial effect of an error, this Court will
examine the totality of the circumstances in which the error
occurred. - Gray, 207 Mont. at 268, 673 P.2d at 1266. If
See
the error involves erroneously admitted evidence, we will not
single out that one item of evidence to evaluate it in isola-
tion. To do so could magnify the prejudicial effect of the
error beyond its actual impact on the verdict, leading to
reversals for mere technical violations of evidentiary rules.
Mr. Brodniak urges that the evidence in this case is not
overwhelming either from a factual or a legal standpoint.
His legal argument on this issue will be addressed in Issue
111. Factually, he contends that the evidence is equally as
consistent with defendant's theory of the case (which was
that the sexual acts were consensual, but that defendant
subsequently became violent) as it is with the prosecution's
theory. This is the key point of Mr. Brodniak's argument
with which we disagree.
This is not a case where the complaining witness's story
is uncorroborated. Overwhelming evidence--both physical and
testimonial--supports D.P.'s story. First, the evidence with
regard to the tearing out of D.P. 's hair overwhelmingly
demonstrated the use of force. The chief of the crime lab
testified that most of the hairs found in the car and the
large ball of hair retrieved from D.P. 's scalp had been
pulled from her head with painful force. He testified that
most of the strands of hair had extended roots still at-
tached, indicating that these hairs were extracted violently.
The ball of hair was introduced into evidence. The attending
nurse testified that, while D.P. combed her hair, a "gross
amount" of hair came out and her scalp appeared to be tender.
Second, D.P. suffered a tear one inch in length in her anus,
a fact clearly inconsistent with consensual relations.
Third, the examining physician's testimony established that
D.P. had blood in and around her vagina, on her underwear and
that the vaginal area still remained sore at the time of the
examination. In response the defendant attempts to argue
that he became violent only after they had engaged in consen-
sual sexual intercourse. The foregoing evidence clearly is
not consistent with consensual intercourse and establishes
violent acts on the part of the defendant. We will not set
forth the rest of the evidence including the testimony of
D.P. which supports the conviction. Our careful review of
the record reveals that the evidence overwhelmingly supports
the verdict that Mr. Brodniak was guilty of sexual inter-
course without consent. We hold there is no reasonable
possibility that the psychologist's testimony contributed to
the jury's finding that Mr. Brodniak was guilty of the crime
of sexual intercourse without consent.
Mr. Brodniak makes an extensive argument with regard to
the burden of proof according to the different tests. We
conclude that it is unnecessary to discuss that argument
because the previously described evidence submitted by the
State is overwhelming and this Court has concluded that there
is no reasonable possibility that the error contributed to
the verdict.
Does the harmless error analysis supplied by the Montana
Supreme Court in its review of the defendant's criminal trial
contravene the due process clause requirement that guilt be
proven beyond a reasonable doubt?
Mr. Brodniak's claim rests on the erroneous assumption
that the state harmless error analysis somehow lowers the
requisite level of proof necessary to meet the standard of
"guilty beyond a reasonable doubt." As stated earlier, the
Montana test requires that there be no reasonable possibility
that the error contributed to the verdict before it can be
declared harmless. We hold that in Brodniak, there was no
contravention of the due process requirement that guilt be
proven beyond a reasonable doubt.
As a matter of law, can evidence be found to be over-
whelming for purposes of harmless error analysis where one or
more members of the appellate tribunal are not convinced that
it is?
In Brodniak, one member of our seven-member Court dis-
sented from the majority opinion. Brodniak argues that, as a
matter of law, evidence cannot be overwhelming for purposes
of harmless error analysis where one or more members of the
appellate tribunal are not convinced that it is. However,
unanimity among the appellate tribunal has never been a
prerequisite to a finding of harmless error when using the
overwhelming evidence test, even when the test is used to
determine the magnitude of constitutional error. - State
See
v. Powers (1982), 198 Mont. 289, 645 P.2d 1357 (one justice
dissenting from harmless error determination); State v. Dess
(1979), 184 Mont. 116, 602 P.2d 142 (one justice dissenting);
Milton v. Wainwright (1972), 407 U.S. 371, 92 S.Ct. 2174, 33
L.Ed. 2d 1; (four justices dissenting) ; and Harrington v.
California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d
284 (three justices dissenting).
Although we have referred to some federal cases, our
analysis and our holding in this opinion are based upon our
analysis of Montana's statute defining harmless error and our
case law interpreting that standard. Our opinion therefore
is based on independent and adequate state grounds.
We affirm the District Court's denial of Mr. Brodniak's
petition for post-conviction relief.
We Concur: A
Justices
Justice William E. Hunt, Sr., dissenting.
I dissent. The State bore the burden of proving beyond
a reasonable doubt that the complaining witness did not
consent to sexual intercourse with the defendant. To bolster
its case, the State solicited testimony regarding the
credibility of the complaining witness. Because of the
potentially tremendous impact of this testimony, I cannot
join the majority's conclusion that the error did not
contribute to the jury verdict.
Whether an error is harmless depends on a number of
factors, each of which should be carefully analyzed by the
reviewing court. These factors include:
1) the nature of the error;
2) the importance of the erroneously admitted
evidence to the State's case; and
3) the presence or absence of corroborating
untainted evidence.
Cf. Delaware v. Van Arsdall (1986), 475 U.S. 673, 106 S.Ct.
1431, 89 L.Ed.2d 674 (listing factors to be considered in
determining harmlessness of error involving Sixth Amendment
right of confrontation); Satterwhite v. Texas (1988), -
U.S. -, 108 S.Ct. 1792, 100 L.Ed.2d 284 (psychiatrist's
testimony in violation of Sixth Amendment right to counsel
was not harmless when the testimony regarding defendant's
dangerous propensity was critical to sentencing, when only
one psychiatrist testified on the issue and when the State
placed significant weight on the testimony).
The nature of the error committed in this case directly
implicated the ultimate issue to be determined at trial, that
is, whether the complaining witness consented to sexual
intercourse with the defendant. Thus, the expert's testimony
regarding the credibility of the complaining witness
improperly invaded the province of the jury. Furthermore,
the testimony was material to the State's case. The State
actively solicited the testimony and the State relied upon it
in closing. Moreover, the untainted evidence corroborated
not only the State's case, it corroborated the defendant's
theory of the case as well, that is, that the violent acts
did not occur until after a consensual sexual encounter.
The overwhelming evidence test used in this opinion
places the majority in the uncomfortable position of
factfinder, forcing the majority to reweigh and, to some
extent, mischaracterize the evidence. For example, the
physician who examined the complaining witness testified
that, although not common, her condition could possibly have
resulted from consensual sexual relations. The majority,
however, claims that her condition was "clearly inconsistent"
with consensual intercourse.
By concentrating solely on the weight of the evidence
and ignoring the nature of the error and the error's
importance to the State's case, the majority examines the
impact of the error in a vacuum. The issue before the jury
was whether the complaining witness engaged in consensual
sexual relations with the defendant. To reach a verdict, the
jury weighed the credibility of the witnesses. Among the
evidence the jury had before it was the testimony of a highly
qualified expert witness who asserted that he believed that
the complaining witness was credible. his testimony was
solicited by the State and extensively relied upon by the
State in closing. Under these circumstances, I cannot agree
with the majority that, beyond a reasonable doubt, the expert
testimony did not contribute to the jury verdict.
I would remand the case to the District Court for a new
trial.
Mr. Justice John C. Sheehy, dissenting:
I concur in the dissent of Justice ~ i l l i a mE. Hunt, Sr.