NO. 94-025
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
GRANT HILDRETH,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael Donahoe, Attorney at Law, Helena,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Pamela P.
Collins, Assistant Attorney General, Helena, Montana
Thomas R. Scott, County Attorney, Calvin J. Erb,
Deputy, Dillon, Montana
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from a jury verdict from the Fifth Judicial
District, Beaverhead County, finding appellant Grant Hildreth
guilty of sexual assault, a felony, in violation of § 45-5-502,
MCA. Hildreth appeals his conviction and the District Court's
denial of a motion for new trial. We affirm.
Hildreth raises several issues on appeal, which we consolidate
and restate as follows:
1. Did the District Court err by failing to hold an omnibus
hearing?
2. Did the District Court err in instructing the jury that
the State was not required to establish the date of the offense
with exact precision?
3. Did the District Court err by allowing the State to call
certain rebuttal witnesses?
4. Did the District Court err by denying Hildreth's motion b
limine in the presence of the jury?
5. Did Hildreth receive ineffective assistance of counsel?
6. Is Hildreth entitled to a new trial based on the State's
attempt to offer inadmissible hearsay evidence?
7. Is Hildreth entitled to a new trial based on the doctrine
of cumulative error?
In the fall of 1989, in an effort to improve her algebra
grades, K.D. began tutoring sessions with her cousin, Grant
Hildreth. At the time, K.D. was a fifteen-year-old high school
2
sophomore and Hildreth was 'a 26-year-old attending college. The
weekly tutoring/study sessions began in early October 1989. The
sessions were held in the evenings at the college Hildreth
attended.
The night before K.D.' s Chapter Four algebra test, on or about
November 16, 1989, Hildreth picked up K.D., and they drove to the
college and studied from approximately 8 p.m. to approximately 9:30
p.m. At about 9:30 p.m., Hildreth left the study room to get a
drink. When he did not return, K.D. went down the hall to look for
him.
K.D. testified at trial that she found Hildreth down the hall,
and that he then asked to give her a back rub. K.D. said that she
was hesitant and Hildreth grabbed her arm. K.D. does not remember
how she got to the floor, only that she was lying face down on the
floor with Hildreth rubbing her back. K.D. testified that Hildreth
then lifted her shirt over her head and attempted to undo her bra.
They struggled over the bra. Holding her down with his hand,
Hildreth succeeded in removing her bra and, while sitting on her
back, pulled off her pants. K.D. testified that after throwing her
clothing into a hallway, Hildreth then undid his pants and began
moving his penis up and down on top of her, eventually ejaculating
on her buttocks.
K-D. testified that later, after Hildreth drove her home, she
washed, but was too embarrassed to tell her parents. At trial,
K.D. testified that Hildreth later apologized and suggested that
she go to her bishop and repent because he had gone to his bishop
3
and talked to him about what happened.
In August of 1990, K.D.'s parents learned of the incident
through two letters written by K.D. which her father inadvertently
found in her room. The letters described what was going on in
K.D.'s life, and what Hildreth was doing to her. During trial,
K.D. testified about several other incidents where Hildreth had
subjected her to similar sexual assaults.
After initially thinking that the situation could be handled
by the family or through a Later Day Saints church procedure,
K.D.'s parents eventually went to the authorities. Hildreth was
charged, by information dated July 9, 1991, with sexual assault, a
felony. A two-day trial was held in which Hildreth raised an alibi
defense, saying he was attending his own birthday party on November
16, 1989. At the close of trial, the jury returned a guilty
verdict on the felony sexual assault charge. The District Court
deferred imposition of sentence for six years upon certain terms
and conditions. Execution of sentence was stayed pending
Hildreth's motion for a new trial. The court denied the motion,
and the stay of execution was vacated.
I
Did the District Court err by failing to hold an omnibus
hearing?
Pursuant to $5 46-13-110(l), MCA, an omnibus hearing must be
held in criminal cases at least 30 days before trial. In this
case, no omnibus hearing was held. Hildreth claims that this was
prejudicial error since: defense counsel was given 20 days instead
4
of 30 days notice that the state intended to introduce "other bad
acts" evidence: defense counsel did not have an opportunity to
argue that evidence of K.D. 's prior sexual misconduct should be
admitted; and the defense was surprised by the State's attempt to
introduce certain physical evidence.
On appeal, this Court will not reverse the district court
unless the record shows that the error was prejudicial. &g fj 46-
20-701(1), MCA. We hold that Hildreth was not prejudiced by the
lack of an omnibus hearing.
First, Hildreth notes that one of the purposes of an omnibus
hearing is to discuss the use of other bad acts evidence. See§
46-13-110(3)(h), MCA. The other acts in question were the other
sexual assaults which K.D. claimed Hildreth committed. Hildreth
claims that he was prejudiced because without the omnibus hearing,
he did not have 30 days to prepare for the use of other bad acts
evidence. Hildreth's claim of prejudice is unpersuasive since the
State gave Hildreth notice of its intent to use other bad acts
evidence pursuant to the demands of State v. Just (1979), 184 Mont.
262, 273, 602 P.2d 957, 963; as modified by State v. Matt (1991),
249 Mont. 136, 142, 814 P.2d 52, 56. The State gave Hildreth this
Just notice 20 days before trial. Thus, Hildreth had 20 days to
prepare for the use of the evidence. We hold that, even without
the omnibus hearing, Hildreth had ample notice of the State's
intention to use other bad acts evidence, and opportunity to
prepare for such evidence.
Next, Hildreth claims that the lack of an omnibus hearing
5
deprived him of the opportunity to argue that evidence of K.D.'s
sexual misconduct should have been admitted. Montana's rape shield
law only allows testimony regarding the victim's prior sexual
conduct when the prior sexual activity was with the offender, or to
show the origin of semen, pregnancy, or disease when it is at issue
in the prosecution. See § 45-5-511(Z), MCA. Hildreth contends
that counsel could have argued that the statute is unconstitutional
as it abridges the Sixth Amendment right to confront witnesses.
This Court has recognized that there may be instances where
the defense can question the victim about prior sexual accusations.
State v. Van Pelt (1991), 247 Mont. 99, 104, 805 P.2d 549, 552-53.
In Van Pelt, this Court recognized that a defendant could cross-
examine the victim where there was evidence of prior accusations
which have been adjudicated as false. Van Pelt, 805 P.2d at 552-
53. Prior accusations which have not been adjudicated as false
will not be admitted, so as to preserve the integrity of the trial:
this limitation is not an infringement upon a defendant's right of
confrontation. Van Pelt, 805 P.2d at 552-53; citing State v.
Anderson (1984), 211Mont. 272, 284-85, 686 P.2d 193, 200. The Van
&.J& exception to the rape shield law does not apply here.
Hildreth does not claim that K.D. made accusations that had been
adjudicated as false before his trial. Thus, Hildreth was not
prejudiced by being unable to make this argument at an omnibus
hearing.
Finally, Hildreth asserts that he was prejudiced because he
was surprised at trial by the State's attempt to introduce into
6
evidence some of K.D.'s clothing. At trial, Hildreth objected
because the State failed to produce this evidence prior to trial.
The court sustained this objection, and the physical evidence was
excluded. We hold that Hildreth was not prejudiced by the lack of
an omnibus hearing.
II
Did the District Court err by instructing the jury that the
State was not required to establish the date of the offense with
exact precision?
At trial, Hildreth offered as an alibi his contention that on
November 16, 1989, he was attending his own birthday party held one
day after his actual birthday. The District Court gave the
following jury instruction:
You are instructed that when the alleged victim for the
offense is a child, the State is not required to
establish the date of the alleged offense with exact
precision. It is sufficient that the State has proved
that on or about the 16th day of November, 1989, the
alleged offense was in fact committed.
Hildreth argues that the District Court effectively amended
the charge against him by giving the challenged instruction.
Hildreth points to the State's affidavit for leave to file an
information which states that the offense occurred on November 16,
1989, rather than on or about November 16, 1989. However, the
information filed against him states that the offense occurred on
or about November 16, 1989. The information itself, not the
affidavit supporting leave to file an information, is the charging
document. See 95 46-11-101 and 46-11-102, MCA. The court's
instruction did not amend the information as to the approximate
7
date of the offense; rather it mirrored it. We hold that the
District Court did not amend the charge against Hildreth by giving
the disputed instruction.
Next, Hildreth argues that the District Court impermissibly
undermined his alibi defense by giving the challenged instruction.
We previously examined whether time becomes a material element of
the offense charged when the defendant raises an alibi defense.
See State v. Shaver (1988), 233 Mont. 438, 760 P.2d 1230. In
Shaver, the defendant planned to rely on an alibi defense. There
was a discrepancy between the time the information stated the
offense occurred and the time the victim testified that it
occurred. The discrepancy in time between the charging document
and the victimIs testimony was over a month. Shaver, 760 P.2d at
1232. In upholding the defendant's conviction, this Court stated
that: "Defendant cannot restrict the state's case by merely
asserting intent to rely on an alibi defense for a limited period
of time within which the crime could have occurred." Shaver, 760
P.2d at 1234-35; citing State v. Clark (1984), 209 Mont. 473, 483,
682 P.2d 1339, 1344.
In the present case, the discrepancy between the approximate
date of the offense given in the information and the approximate
date K.D. testified to is a few days at most. Since we allowed
testimony in Shaver with a greater discrepancy, the instruction
here is certainly proper. We hold that, even though Hildreth
asserted an alibi defense, the disputed instruction the District
Court gave is the correct statement of the law for this case. We
8
hold that the District court did not err by giving the disputed
instruction.
III
Did the District Court err by allowing the State to call
certain rebuttal witnesses?
In rebuttal, the State called three witnesses. Hildreth
contends that these witnesses were called to rebut his alibi
defense. Section 46-15-322(6), MCA, states that when witnesses
will be called to rebut an alibi defense, the prosecution must give
the defense written notice of the witnesses and their statements
five days in advance of trial.
It appears that two of the State's three rebuttal witnesses
were called to impeach Hildreth's witnesses, not rebut his alibi
defense. Hildreth's mother had testified that she was at
Hildreth's birthday party on November 16, 1989. One of the State's
rebuttal witnesses, who kept records for Hildreth's parents'
bowling league, testified that Hildreth's mother called sometime
after Hildreth was charged and said that Hildreth was bowling with
her on November 16, 1989. Another witness testified that
Hildreth's mother made statements to the witness that were
inconsistent with her trial testimony: these statements did not
involve the alibi defense, and are discussed in part V of this
opinion.
Finally, the State called Deputy Keith Reeder in rebuttal. It
appears that the State attempted to solicit testimony from Deputy
Reeder that would rebut Hildreth's alibi defense in violation of
9
the notice requirements contained in 5 46-15-322(6), MCA. However,
this Court will only reverse prejudicial error. See 5 46-20-
701(1), MCA. Hildreth objected to Deputy Reeder's testimony at
trial, the court sustained the objection, and Reeder then stepped
down (Reeder's rebuttal testimony is further discussed in part VI
of this opinion). We hold that Hildreth was not prejudiced by the
testimony of the rebuttal witnesses.
IV
Did the District Court err by denying Hildreth's motion &J
limine in the presence of the jury?
Just before the State began to question K.D. about similar
sexual assaults by Hildreth, the court ruled against Hildreth's
motion in limine to exclude such evidence. The court also
cautioned the jury that it could not consider the evidence to prove
Hildreth's character in order to show he acted in conformity with
that character in the charged offense. Hildreth contends that by
ruling on the motion in limine in the jury's presence, the court
improperly commented on the evidence.
In support of this contention, Hildreth cites State v. Liddell
(1984), 211Mont. 180, 685 P.2d 918. In Liddell, the defendant was
charged with sexual intercourse without consent. Liddell, 685 P.2d
at 920. The court instructed the jury that the charge in question
was easily made and difficult to defend. Liddell, 685 P.2d at 921.
This Court held that the instruction was an improper comment on the
evidence which was not required by law or public policy. Liddell,
685 P.2d at 922.
10
Liddell is inapplicable to the present case. The court's
statement in Liddell was an obvious comment on the evidence: here,
the court's statement was not. Hildreth claims that by ruling on
the motion in front of the jury, the court drew attention to the
evidence. The record does not support Hildreth's contention. The
court simply stated that it was ruling against Hildreth's motion ti
limine at that stage of the trial, and then properly cautioned the
jurors on the use of the evidence. See Rule 404(b), M.R.Evid.
These statements do not rise to the level of improper comment on
the evidence. We therefore hold that the District Court did not
err by denying Hildreth's motion in limine in the presence of the
jury.
V
Did Hildreth receive ineffective assistance of counsel?
Hildreth alleges several instances of error committed by trial
counsel which, Hildreth claims, rise to ineffective assistance of
counsel. This Court reviews ineffective assistance of counsel
claims using the two prong test set forth in Strickland v.
Washington (1984), 466 U.S. 668, 80 L.Ed.Zd 674, 104 S.Ct. 2052.
State v. McLain (1991), 249 Mont. 242, 244-45, 815 P.2d 147, 149.
For an ineffective assistance of counsel argument to succeed, we
require that the appellant show that counsel's performance was
deficient, and that the deficient performance prejudiced the
appellant to such a degree that the appellant was denied a fair
trial. McLain, 815 P.2d at 149; citing State v. Boyer (1985), 215
Mont. 143, 695 P.2d 829. Also, the appellant must establish
11
-, ., . -
prejudice, which requires. that he demonstrate a reasonable
probability that, but for counsel's errors, the result of the
proceeding would have been different. State v. Kolberg (1990), 241
Mont. 105, 109, 785 P.2d 702, 704.
Hildreth first claims that his trial counsel was ineffective
because counsel did not attempt to introduce evidence of the
victim's prior sexual misconduct. In part I of this opinion, we
held that the Van Pelt exception to Montana's rape shield law was
inapplicable here; as a result, evidence of the victim’s prior
sexual conduct would not have been admissible. Thus, Hildreth does
not demonstrate ineffective assistance of counsel through counsel's
failure to attempt to introduce evidence of K.D.'s prior sexual
misconduct.
Next Hildreth argues that his trial counsel erred by:
allegedly opening the door to evidence of Hildreth's prior bad
acts, failing to request a lesser included offense instruction, and
allegedly arguing a consent defense in closing argument. Upon
review of the record, it appears that these actions were taken for
strategic reasons. While Hildreth's appellate counsel may not
agree with these actions, we have held that we will not test trial
counsel's adequacy by the greater sophistication of appellate
counsel, nor by that counsel's unrivaled opportunity to study the
record at leisure and cite different tactics of perhaps dubious
efficacy. State v. Langford (1991), 248 Mont. 420, 433, 813 P.2d
936, 946; citing State v. Martz (1988), 233 Mont. 136, 140, 760
P.2d 65, 68. We hold that these alleged deficiencies do not amount
12
to ineffective assistance of-counsel.
Hildreth further argues that his trial counsel was deficient
because counsel failed to move for a mistrial when the State
offered some of K.D.' s clothing into evidence. When the State
attempted to offer this evidence, Hildreth's counsel objected on
the grounds that this evidence had not been disclosed. The court
sustained the objection, the items were not introduced into
evidence, and the court admonished the jury to disregard the
offered evidence.
In order to grant a mistrial, the moving party must
demonstrate manifest necessity coupled with the denial of a fair
and impartial trial. State v. Benton (1992), 251 Mont. 401, 404,
825 P.2d 565, 567. This Court has held that the failure to object
does not constitute ineffective assistance of counsel where the
objection lacks merit and would have been properly overruled.
State v. Rodgers (1993), 257 Mont. 413, 421, 849 P.2d 1028, 1033.
A mistrial would not have been properly granted in this case if it
were requested as Hildreth could show neither manifest necessity
nor denial of a fair trial. Thus trial counsel's failure to
request a mistrial does not amount to ineffective assistance of
counsel.
Finally, Hildreth asserts that counsel's failure to object to
hearsay evidence offered in rebuttal amounted to ineffective
assistance. We disagree. During the defense's case-in-chief,
Hildreth's mother denied going to K.D.' s home and making certain
statements to K.D.'s mother. In rebuttal, K.D. 's mother testified
13
that Hildreth's mother did~ indeed make these statements. The
rebuttal testimony was admissible hearsay as prior inconsistent
statements. &.e Rule 801(d)(l), M.R.Evid. An objection to this
evidence would not have been properly sustained: thus, the failure
to object does not amount to ineffective assistance of counsel.
Racers, 849 P.2d at1033. We hold that Hildreth received effective
assistance of counsel.
VI
Is Hildreth entitled to a new trial based on the State's
attempt to offer inadmissible hearsay evidence?
During rebuttal, the State called Deputy Keith Reeder to
testify. Deputy Reeder testified that he had spoken with a church
elder who had attended Hildreth's birthday party in November of
1989. The State then asked Deputy Reeder if the elder had told him
when the party occurred. Defense counsel objected to the question
as hearsay, and the court sustained the objection. However, it
appears that before Hildreth's counsel objected, Deputy Reeder was
able to respond that the elder said he had attended the party on
the fifteenth. Hildreth claims that this attempt to put the
objectionable testimony into evidence amounted to prosecutorial
misconduct.
We have long held that we will not presume prejudice in
criminal cases; prejudice must appear from the denial or invasion
of a substantial right from which the law imputes prejudice. State
v. Rhyne (1992), 253 Mont. 513, 525, 833 P.2d 1112, 1120; citing
State v. Miller (1988), 231 Mont. 497, 507, 757 P.2d 1275, 1281.
14
Our modern cases dealing with prosecutorial misconduct have
generally come in the form of the prosecutor making comments on the
evidence or comments on the defendant's failure to testify. &
Rhvne, 833 P.2d at 1120; State v. Newman (1990), 242 Mont. 315,
325, 790 P.2d 971, 977; State v. Johnson (1988), 233 Mont. 473,
477, 760 P.2d 760, 762.
In the older cases Hildreth cites, this Court found that it
was prosecutorial misconduct for the State to knowingly ask a
series of objectionable questions to more than one witness. See
State v. Jones (1914), 48 Mont. 505, 517, 139 P. 441, 445; State v.
Kanakaris (1917), 54 Mont. 180, 184, 169 P. 42, 44. In the present
case, the State asked a single objectionable question of a single
rebuttal witness. This does not amount to prosecutorial
misconduct. In addition, in Hhvne when determining whether the
conduct was prejudicial, we found it significant that the defendant
successfully objected, but did not request the court to admonish
the jury or give a cautionary instruction, or request a mistrial.
Hhvne, 833 P.2d at 1120.
Here, Hildreth successfully objected to the hearsay testimony.
Again, we find it significant that Hildreth did not request the
court to admonish the jury or give a cautionary instruction, or
request a mistrial. We hold that Hildreth does not demonstrate
that one of his substantial rights was prejudiced by prosecutorial
misconduct.
VII
Is Hildreth entitled to a new trial based on the doctrine of
15
cumulative error?
Hildreth finally argues that this Court should reverse his
conviction on the basis of cumulative error. The doctrine of
cumulative error has been considered when numerous errors prejudice
the defendant's right to a fair trial. State v. ottwell (1989),
239 Mont. 150, 157, 779 P.2d 500, 504.
In the present case, the only errors committed were that the
District Court failed to hold an omnibus hearing and the State
attempted to use a witness to rebut Hildreth's alibi without giving
Hildreth the proper notice. We held that those errors did not
prejudice Hildreth. Accordingly, we hold that the doctrine of
cumulative error does not apply in this case.
Affirmed.
16
November 1, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Vincent J. Kozakiewicz
Attorney at Law
P.O. Box 588
Dillon, MT 59725
Michael Donahoe
Attorney at Law
P.O. Box 5
Helena, MT 59624
Hon. Joseph P. Mazurek
Attorney General
Justice Bldg.
Helena, MT 59620
Thomas R. Scott, County Attorney
Calvin J. Erb, Deputy
2 So. Pacific, CL #2
Dillon, MT 59725
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA