NO. 93-079
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
".
CHRIS ANDREW GREYTAK,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Leo J. Gallagher, Attorney at Law,
Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Cregg Coughlin, Asst. Attorney General,
Helena, Montana
Mike McGrath, Lewis and Clark County
Attorney, Carolyn Clemens, Deputy County
Attorney, Helena, Montana
Submitted on Briefs: October 21, 1993
Decided: December 14, 1993
Filed:
'Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
Defendant Chris Andrew Greytak was charged with burglary,
kidnapping, and sexual intercourse without consent in the District
Court for the First Judicial District, in Lewis and Clark County.
He was found guilty of all three charges by a jury on September 30,
1992, and now appeals that conviction. We affirm the District
Court.
The following issues are before this Court:
1. Did the District Court err when it overruled defendant's
objection during the prosecutor's cross-examination of defendant's
witness?
2. Did the District Court err when it denied defendant's
motion for a mistrial on the grounds of prosecutorial misconduct?
3. Did the District Court err when it excluded evidence that
the complaining witness had, prior to this incident, accused a
person other than defendant of raping her?
On April 23, 1992, defendant was charged with burglarizing the
home of his former girlfriend, A.B., in violation of 5 45-6-204,
MCA; kidnapping her in violation of 5 45-5-302, MCA; and having
sexual intercourse with her without her consent in violation of
$4 45-5-503, MCA. He admitted having had intercourse, but stated
that it was consensual, and therefore, pled not guilty to each of
the charged offenses on May 6, 1992.
On August 27, 1992, the court granted the State's motion in
limine to preclude defendant from introducing evidence that A.B.
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had made prior accusations of sexual assault concerning defendant
and persons other than defendant.
Defendant made a motion in limine to prohibit the prosecutor
from bolstering A.B.' s credibility through A.B.'s therapist. At
trial, outside the presence of the jury, defense counsel stated his
concerns on the record that the prosecutor would similarly attempt
to bolster A.B.' s credibility through expert testimony of an
investigating police officer. The judge and the prosecutor
acknowledged the impropriety of this approach and the prosecutor
agreed not to ask the police officer whether he believed A.B. was
truthful about being raped. The testimony of the police officer
was admitted without objection. However, during the
cross-examination of a lay witness called by defendant, questions
were permitted which defendant now contends violated the parties'
tacit understanding that A.B.' s credibility could not be bolstered
through the testimony of third parties.
On the morning following this exchange, outside the presence
of the jury, defendant's attorney moved for a mistrial, based on
the prosecutor's examination. The District Court denied the motion
and offered jury instruction No. 2A in which it cautioned the jury
to disregard the prosecutor's remarks. After consideration of the
evidence, the jury found defendant guilty of each offense charged.
Defendant was sentenced to 36 years in prison with five years
suspended and designated a dangerous offender.
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I.
Did the District Court err when it overruled defendant's
objection during the prosecutor's cross-examination of defendant's
witness?
The objection took place in the following context:
Q. [By Ms. Clemens] Do you remember in our
conversation, Scott, I asked you the question why [A.B.]
would make this up? Remember that?
A. [By Witness Duthie] Vaguely.
Q. Okay. Do you remember what you said to me in
response to that?
MR. GALLAGHER: Your Honor, calling for speculation.
THE COURT: Overruled. Go ahead.
A. [By witness] Not really. I just said I don't know
why.
Q. Okay. Do you remember making the statement to me
that IA.B.1 wouldn't co this far with this if it weren't
true?
A. No, I didn't say that.
Q. You never said that?
A. No.
[Emphasis added].
Defendant contends that the question "do you remember making
the statement to me that [A.B.] wouldn't go this far with this if
it weren't true" was improper impeachment which had the effect of
bolstering A.B.'s credibility. The State responds that the
question to which defendant objected did not call for the witness
to speculate, and therefore, that an objection on the grounds of
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speculation was improper. Furthermore, the State maintains that
the objection was untimely.
To preserve an objection for appeal, a party must object in a
timely manner and state the specific ground for the objection
unless the specific ground was apparent from the context.
Rule 103, M.R.Evid. We conclude that the prosecutor's question was
not improper for the reason urged at the time of trial and that the
reason raised for the first time on appeal was not apparent from
the context in which the question was asked. Therefore, we
conclude that the District Court did not err by overruling
defendant's objection.
II.
Did the District Court err when it denied defendant's motion
for a mistrial on the grounds of prosecutorial misconduct?
The standard of review for denial of a motion for mistrial is
whether there is clear and convincing evidence that the trial
court's ruling is erroneous. &%?Sfale%&?ntO?Z (1992), 251 Mont. 401,
404, 825 P.2d 565, 567-68. There must be a manifest necessity to
declare a mistrial and a defendant must have been denied a fair and
impartial trial. Benton, 825 P.2d at 567.
After reviewing the record, we conclude that the prosecutor's
remark could have had little, if any, effect on the jury's decision
and that defendant fails to meet his burden of showing clear and
convincing evidence of error by the District Court. As the State
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points out, the witness answered the question in the negative and
had previously testified that he was a friend of both defendant and
A.B. Moreover, the District Court issued an instruction cautioning
the jury not to consider the statements of counsel as evidence.
"An error in the admission of evidence may be cured if the jury is
admonished to disregard it." state% Conrad (1990), 241 Mont. 1, 19,
785 P.2d 185, 190. Seeaho, Statev.Kolberg (1990), 241 Mont. 105, 785
P.2d 702. We agree with the District Court that the circumstances
of this case did not warrant a mistrial and conclude that defendant
received a fair and impartial trial.
III.
Did the District Court err when it excluded evidence that the
complaining witness had, prior to this incident, accused a person
other than defendant of raping her?
Rulings on evidence are left to the sound discretion of the
trial court and will not be overturned by this Court absent a
showing of manifest abuse. state v. Van@ken (1990), 242 Mont. 415,
435, 791 P.2d 1350, 1362-63, cert.denied, 498 U.S. 920.
Defendant argues that the purpose of introducing the evidence
was to show that A.B. was a manipulative woman who said untrue
things and had a motive to make similar allegations against him.
Moreover, he argues that granting the State's motion in limine
deprived him of constitutional rights.
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The District Court granted the State's motion in limine to
exclude reference to previous accusations of rape made by A.B. on
the basis of Statcv.Anderson (1984), 211 Mont. 272, 686 P.2d 193.
There, we held that evidence of prior accusations made by the
complaining witness of sexual assault is inadmissible if the
alleged accusations have not been proven false by adjudication or
admission of the witness. Anderson, 686 P.2d at 200. In this case,
A.B. denied accusing anyone other than defendant of raping her. A
police report contained in the record indicates that the individual
she allegedly accused denied that he had raped A.B. or that she had
accused him of doing so. In state v. Van Pelt (1991), 247 Mont. 99,
104, 805 P.2d 549, 552, this Court stated that "any accusations or
allegations the victim has made of prior sexual conduct must have
been proven to be false or admitted to be false before it is
admissible." That threshold requirement was not met in this case.
We hold that the District Court did not abuse its discretion
when it excluded the evidence of prior rape allegations.
We affirm the judgment of the District Court.
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We concur: