No. 89-366
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
FRANK HENRY,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C.R. McNeil, Judge presiding.
COfJNSEL OF RECORD:
For Appellant:
Timothy J. Lape, Polson, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Jennifer Anders, Asst. Atty. General, Helena
Larry J. Nistler, County Attorney; Mark L. Sterrnitz,
Deputy, Polson, Montana
Submitted on Briefs: Dec. 1, 1989
Decided: March 2 , 1990
Filed:
Justice Diane G. Barz delivered the Opinion of the Court.
Defendant Frank Henry was charged by information with the
offense of sexual intercourse without consent pursuant to § 45-5-
503 (1), MCA. Defendant pled not guilty. A jury trial was held
January 5 and 6, 1989. The jury returned a guilty verdict on
January 6, 1989. Defendant appeals the conviction. We affirm.
The following three issues are raised on appeal.
1. Whether the jury panel was selected contrary to law and
in violation of defendant's right to a trial by a fair and
impartial jury;
2. whether the District Court erred in denying defendant's
motion to dismiss the charge based upon the alleged suppression of
exculpatory evidence; and
3. whether the District Court erred in allowing into evidence
photographs of scratches on defendant's torso.
On September 20, 1988, Samantha Kenmille accompanied her
sister and brother-in-law, Lori and Darrell Gross, to the Wolf Den
Bar in Polson, Montana. After consuming several beers at the Wolf
Den, the trio went to the Smokehouse Bar where they remained until
closing. While at the Smokehouse Bar, Darrell Gross introduced
Samantha Kenmille to defendant, Frank Henry. Samantha had not met
defendant prior to that evening. At the closing of the Smokehouse
Bar, Samantha, Lori, Darrell and defendant left the bar to go to
Jack and Zoe Dulongs' house for a party. At the Dulong residence,
the defendant and Samantha engaged in conversation and became
physically friendly by kissing. After about one and one-half hours
2
at the Dulong residence, defendant invited Samantha, Lori and
Darrell to his house for a sauna. The four left in the Grosses1
van, however, only defendant and Samantha were dropped off at
defendant's house because Lori and Darrell decided to return to the
party.
Once at defendant's house, the two sat in the living room and
watched television. Prior to entering the sauna, Samantha
expressed to defendant that she would like to leave. Defendant,
however, insisted that she stay since the sauna was ready and he
did not want to waste energy. Samantha followed defendant to the
sauna and entered the sauna room by herself fully clothed.
Defendant slammed the sauna door behind her and held it shut for
ten or fifteen seconds. Samantha testified that defendant's antics
frightened her. Upon opening the door, defendant laughed and told
her that he usually takes his clothes off before taking a sauna.
Defendant then left the bathroom area.
Samantha shut the bathroom door, undressed and entered the
sauna alone wearing her bra and underwear. Defendant undressed in
another room and joined Samantha wearing only his underwear.
Defendant sat on the bench next to Samantha and kissed her. No
other physical contact, hugging or foreplay occurred between them
until defendant suddenly forced Samantha's legs apart and tore off
her underwear. He also pushed her bra up and began slapping her
breasts. Samantha testified that the slaps hurt and she became
very afraid. During this time, Samantha tried to push the
defendant away and forcefully told him Itno." Defendant, however,
was on top of her, physically overpowered her and then had sexual
intercourse with Samantha without her consent. Defendant failed
to climax and then ceased the act of intercourse. Defendant
subsequently left the sauna.
Samantha grabbed her clothes, got dressed, and ran out the
door, leaving behind her torn underwear and coat. She ran back to
the Dulongsl house to find her sister Lori and brother-in-law
Darrell. Darrell testified that Samantha was crying and appeared
very upset when she arrived back at the Dulong residence. Samantha
told Lori and Darrell that defendant was a ''jerk1'and that he had
''beat her up." All three--Samantha, Lori and Darrell--returned to
defendant's house to get Samantha's coat because Samantha was
afraid to go back to defendant s house by herself. On the way back
to defendant's house, Samantha admitted to Lori that defendant had
raped her.
Once at defendant's house, they knocked on the door and
defendant answered the door wearing only a pair of pants. Darrell
testified that defendant's chest was very red and his arm was
scratched. While searching for Samantha's coat, Darrell discovered
the torn underwear in the sauna. He confronted defendant, who
initially denied doing anything. An argument ensued between the
two men, and Lori at one point stood between the two men and tried
to push defendant away from Darrell.
Lori and Darrell took Samantha to the police station where she
was interviewed by Officer Erickson at approximately 5:30 a.m.
Samantha was very upset and was initially unable the talk about the
incident. The officer detected an odor of alcohol but testified
that she did not appear to be intoxicated. When he discovered that
penetration had occurred, the officer called Detective Smith.
Detective Smith marked and bagged Samantha's underwear and sent her
to the hospital where she was examined. The examining nurse
reported bruises on Samantha's left breast and inner thigh. The
medical report specified that while no external pelvic trauma
existed, Samantha was "crying,I' "quite upsetn and "unable to talk.
Defendant was subsequently arrested on the afternoon of
September 21, 1988, at the Smokehouse Bar in Polson. In his
voluntary statement to the police, he contended that the act of
sexual intercourse was consensual. Defendant was charged by
information with the offense of sexual intercourse without consent
as specified under 5 45-5-503(1), MCA. Defendant pled not guilty.
A jury trial was held January 5 and 6, 1989. The jury returned a
verdict of guilty on January 6, 1989. Defendant appeals the
conviction.
The first issue defendant raises on appeal is whether the jury
panel was selected contrary to law and in violation of defendant's
right to a trial by a fair and impartial jury.
In the present case, the court authorized the jury
commissioner to excuse those prospective jurors who were drawn and
called for this trial who had an obvious undue hardship. Those
without an obvious hardship were required to obtain a personal
excuse from the court. The court acknowledged that prospective
jurors were dismissed prior to trial who had demonstrated an undue
hardship.
Defendant argues that six jurors were excused and that these
jurors did not submit an affidavit stating their hardship nor was
a record kept as to the reason these jurors were excused at the
pretrial stage. Apparently, the basis of defendant's pretrial
objection is that at least one of the prospective jurors from the
jury pool, who qualified to serve as a trial juror, was not in fact
called for this particular trial. Defendant therefore argues that
under 3 3-15-313, MCA, the jury panel was selected contrary to law
and in violation of his right to trial by a fair and impartial
jury. Section 3-15-313, MCA, provides that
(1) The court or jury commissioner with the
approval of the court shall excuse a person
from jury service upon finding that jury
service would entail undue hardship for the
person or the public served by the person.
(2) If a person believes jury service would
entail undue hardship for him or the public
served, he may make and transmit an affidavit
to the jury commissioner for which he is
summoned, stating his occupation or such other
facts as he believes will excuse him from jury
service. The affidavit shall be filed with
the jury commissioner, who shall transmit it
to the court. The court or jury commissioner
with the approval of the court may excuse a
prospective juror from jury service if the
prospective juror satisfies the provisions of
subsection (1) .
In particular, defendant argues that the submitting of affidavits
by those jurors who claim an undue hardship is mandatory under B
3-15-313, MCA, and that failure to do so created a material
deviation in procuring a jury and therefore is a denial of
defendant's constitutional rights. We disagree.
Section 3-15-313 (2) , MCA, must be read in light of all the
statutes addressing juries and jurors. See 9 5 3-15-101 through
-802, MCA. In particular, § 3-15-401, MCA, provides that each year
the chairman of the board of county commissioners and the county
clerk and recorder of each county must meet for the purpose of
compiling a list of persons to serve as prospective jurors for the
ensuing year. Once these prospective jurors are drawn, the clerk
shall serve them notice by mail and require a response by mail as
to their qualifications to serve as trial jurors. The clerk may
also attach I1aform for an affidavit claiming an excuse as provided
for in 3-15-313. . ." Section 3-15-505, MCA. If a prospective
juror does not return an affidavit claiming an undue hardship, that
prospective juror is then placed on the jury list for the term
specified by the court. When jurors are needed for a pending
trial, the jury commissioner will draw from the pool of jurors the
number of jurors ordered to be drawn by the court. Section 3-15-
503 (I), MCA. Once the jurors are drawn from the pool, the
prospective juror notified may then attempt to demonstrate an undue
hardship so as to be excused from serving on that particular jury
panel. Section 3-15-313(1), MCA. If the prospective juror
succeeds in demonstrating undue hardship, the juror will be excused
for that jury trial but will remain on the jury list for the
remaining jury term and may be summoned to serve on a subsequent
jury during that term. Contrary to what defendant asserts,
however, the statutes do not demand the filing of an affidavit
demonstrating an undue hardship at this stage of the jury selection
process. No deviation occurred in the selection of the impaneled
jury in this case. The record demonstrates that thirty prospective
jurors appeared on the morning of trial. Of the first twenty-four
prospective jurors questioned, only one was excused for cause
during voir dire, which left five prospective jurors called for
jury duty who were never questioned. As this Court has frequently
stated:
The accused cannot complain if he is still
tried by an impartial jury. He can demand
nothing more. The right to challenge is the
right to reject, not to select, a juror. If
from those who remain, an impartial jury is
obtained, the constitutional right of the
accused is maintained.
Territory v. Roberts (1889), 9 Mont. 12, 14, 22 P. 132, 133 (citing
Hayes v. Missouri (1887), 120 U.S. 68, 71, 7 S.Ct. 350, 352, 30
L.Ed. 578, 580) ; See also State v. Coleman (1978), 177 Mont. 1, 25-
26, 579 P.2d 732, 747. In light of the above, defendant's
assertion that he was denied his constitutional right to a trial
by an impartial jury because of a deviation in the jury selection
process is unfounded and without merit.
The second issue raised on appeal is whether the District
Court erred in denying defendant's motion to dismiss the charge
based upon the alleged suppression of exculpatory evidence.
Prior to trial, defendant had filed a motion in limine
requesting the exclusion of all evidence concerning the scratches
on his torso because it would potentially refute his defense of
consent. Defendant claimed that the reason for exclusion of such
evidence was "that its probative value is substantially outweighed
by the danger of unfair prejudice." The District Court denied the
motion.
At trial, after the State had given its opening statement to
the jury, defendant's attorney received from Officer Hunter a copy
of a written statement by Lori Gross. The statement stated in
pertinent part that:
Frank let us in and Darrell asked Frank why he
slapped Sam. He was saying he didn't and
Darrell walked over to the sauna and picked up
Sam's underware [sic], which were all torn.
Darrell asked Frank about it and Frank started
to attack Darrell so I stepped between them
and held Frank back at my arm's length. He
didn't have any visible scratches at this time
even to when we left so it had to be by his
own hand or by unintentionable [sic] mistake
of my own hand holding him back . . .
The record demonstrates that neither defense counsel nor the
prosecution had knowledge of Lori Gross's written statement prior
to the trial. Upon discovery of Lori Gross's written statement,
defendant made a motion to dismiss. The District Court denied the
motion and afforded defendant an opportunity to either interview
Lori Gross or subpoena her and call her as a witness prior to the
defense concluding its case-in-chief. Defendant's counsel neither
interviewed Lori Gross nor subpoenaed her as a witness.
Defendant's counsel also did not renew his motion in limine,
requesting the exclusion of all evidence concerning the scratches
on defendant's torso.
On appeal, defendant's entire argument is based upon the
alleged suppression of Lori Gross's written statement. Defendant
argues that the alleged suppression of this statement prejudiced
him by denying him the opportunity to present it as an exhibit in
support of his pretrial motion in limine. Defendant, however, had
the opportunity to renew his motion in limine after the State's
opening statement, but failed to do so. The defendant cannot now
raise the issue on appeal when he failed to renew his motion before
the District Court. As this Court stated in Rasmussen v. Sibert
(1969), 153 Mont. 286, 456 P.2d 835, "[tlo hold otherwise would
. . . put the trial court in error on an issue which had not been
presented to it for ruling ... Rasmussen, 153 Mont. at 295, 456
P.2d at 840. In addition, defendant's argument alleging that the
written statement was suppressed is without merit in light of State
v. Kirkland (1979), 184 Mont. 229, 602 P.2d 586, where this Court
held that "[e]vidence is not withheld or suppressed if the
defendant has knowledge of the facts or circumstances, or if the
facts become available to him during trial." Kirkland, 184 Mont.
at 243, 602 P.2d at 595.
In light of defendant's failure to renew his motion in limine
at the time Lori Gross's written statement was discovered and in
light of this Court's holding in Kirkland, we uphold the District
Court's decision to deny defendant's motion to dismiss the charge.
The third issue raised on appeal is whether the District Court
erred in allowing into evidence photographs of scratches on
defendant's torso.
Defendant argues that the District Court erred by allowing
into evidence the photographs illustrating the scratches that were
present on defendant's torso on the evening of September 21, 1988.
Defendant argues that the probative value of these photographs were
never explained to the jury. Defendant also argues that these
photographs were introduced to arouse the sympathies and passions
of the jury and were not substantially necessary or instructive to
material facts.
The question of an evidence's admissibility is a question of
law, whereas the weight that is attributed to that evidence is left
to the trier of fact. When determining whether a piece of evidence
is admissible, a district court must find that the evidence is both
relevant and competent. Rule 403, M.R.Evid., however, further
provides that:
Although relevant, evidence may be excluded if
its probative value is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the
jury, or by considerations of undue delay,
waste of time, or needless presentation of
cumulative evidence.
At trial, a district court has the discretion in determining
whether the evidence is relevant and also whether the factors in
Rule 403, M.R.Evid. would preclude otherwise relevant evidence from
being admitted. State v. Doll (1985), 214 Mont. 390, 399, 692 P.2d
473, 477. A district court therefore must determine whether the
probative value of verified photographs outweighs any prejudicial
effect. State v. Grant (1986), 221 Mont. 122, 136, 717 P.2d 562,
The foundation testimony for the photographs in this case was
provided by Detective Hunter. After being shown the photographs,
Detective Hunter testified that he took the pictures on the night
they arrested the defendant and that the photographs accurately
portrayed the scene that was photographed. The State's attorney
subsequently questioned defendant as to the source of the scratches
and as to whether Lori Gross clawed him with her fingernails. As
this Court stated in State v. Sigler (1984), 210 Mont. 248, 688
P.2d 749, a jury is entitled to know the nature and extent of the
injuries. Sisler, 210 Mont. at 256, 688 P.2d at 753. The
photographs in this case were relevant in that they aided the jury
in understanding the nature and the extent of defendant's injury.
The photographs thus were also available to the jury to aide them
in determining, along with the other available evidence, the
possible source of the scratches. The probative value of a
photograph does not necessarily need to be explained to the jury
in detail for it to be properly admitted. The District Court did
not err in determining that the probative value of the photographs
outweighed the prejudice, if any, to defendant.
Affirmed.
We concur: