No. 93-402
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
THE STATE OF MONTANA,
Plaintiff/Respondent,
-v-
DANNY RAY KELLY,
Defendant/Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender, Helena,
Montana
For Respondent:
Joseph P. Mazurek, Attorney General; Patricia
Jordan, Assistant Attorney General; Dennix Paxinos,
Yellowstone County Attorney; Daniel L. Schwartz,
Deputy, Billings, Montana
Submitted on Briefs: April 21, 1994
Decided: June 21, 1994
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
Following a jury trial, the defendant, Danny Ray Kelly
(Kelly), was convicted of one count of aggravated kidnapping, a
felony, in violation of 5 45-5-303 (1) (c), MCA, and two counts of
sexual intercourse without consent, felonies in violation of 5 45-
5-503(1),(3), MCA. Based on that conviction, he was sentenced by
the District Court for the Thirteenth Judicial District,
Yellowstone County to imprisonment at the Montana State Prison for
one hundred years on the aggravated kidnapping charge and to terms
of forty years on each of the two charges of sexual intercourse
without consent, to run consecutively to each other and
concurrently with the term of imprisonment on the aggravated
kidnapping charge. Kelly appeals the conviction and sentencing.
We affirm the conviction, and reverse and remand for resentencing.
The two issues on appeal are as follows:
1. Did the District Court err in relying on Kelly's
constitutional right to remain silent in imposing punishment?
2. Did the District Court improperly bolster the credibility of
the alleged victim, J.C., and deny Kelly his right to a fair trial
by examining the witness to assess competency, in the presence of
the jury, when there was no issue as to competency?
FACTUAL BACKGROUND
During the early morning hours of July 29, 1992, two women
Roxanne C., and Victoria Friday, asked Kelly to drive them home
from a house party. Kelly drove the women home and left a short
time later. Around 8:00 a.m., Roxanne's four children who had
2
stayed overnight at a babysitters, returned home. While they were
watching T.V. , there was a knock on the door, and Kelly entered the
house. He went into Roxanne's room for a short time, and then went
into Victoria's bedroom. Victoria told Kelly to leave. He went to
the room where the children were watching T.V. and told J . C . , who
was then eleven years old, that her mother wanted him to take her
to the store to buy diapers and formula. J.C. went to ask her
mother if it was alright for her to go to the store, but she could
not awaken her. J.C. then went with Kelly in his car, however he
did not take her to the store but rather took her to various
locations, including the apartment where Louis Hollingshed lived,
and subjected her to sexual acts.
While in Hollingshed's apartment, J . C . ran into the kitchen
grabbed a knife and stabbed Kelly twice in the leg. Kelly
struggled to get the knife back from J.C. and in doing so J.C.Is
finger was cut. Kelly demanded that J. C. clean up the blood on the
floor, so J . C . attempted to do so with a towel. A short time later
they left the apartment. While they were getting into Kelly's car
J.C. managed to run to a nearby business where Angela Schneider was
working. J.C. was shaking and screaming "he is going to kill me."
Ms. Schneider took J . C . outside and asked her where the man was,
and J . C . pointed to a black man in a blue station wagon. After
leading the police on a high speed chase, Kelly was arrested and
taken into custody.
The Yellowstone CountyAttorneylsOffice subsequently filed an
Information charging Kelly with one count of aggravated kidnapping,
a felony, and four counts of sexual intercourse without consent,
each charge a felony. The State moved the court to dismiss two of
the charges of sexual intercourse without consent, and the court
granted the motion. A jury trial was held on January 25, 26, and
27, 1993, and the jury returned a verdict finding Kelly guilty of
the remaining three charges.
J.C. testified at the trial. Kelly did not attack the
credibility or competency of J.C. Although defense counsel and the
State did ask the jury panel, during voir dire, questions about
whether children in general had the ability to tell the truth, the
questioning did not specifically address J.C.'s competency or
credibility. The State offered and later withdrew a jury
instruction regarding competency of a child witness and defense
counsel felt that an instruction was unnecessary. Notwithstanding,
after J.C. testified, the District Court questioned her concerning
her understanding of the oath and the fact that she raised her left
hand as opposed to her right hand in taking the oath. The court
asked her if she had told the truth to which she responded "yes."
This was all accomplished in the presence of the jury. At that
time defense counsel did not object, however, two days later
defense counsel moved for a mistrial on the ground that the
District Court had bolstered J.C.'s credibility by questioning her
in the presence of the jury regarding her competency and
credibility. The court denied the motion.
Kelly chose not to testify at trial. The District Court
sentenced Kelly to imprisonment at the Montana State Prison for one
hundred years on the aggravated kidnapping charge and to terms of
40 years on each of the two charges of sexual intercourse without
consent, to run consecutively to each other and concurrently with
the term of imprisonment on the aggravated kidnapping charge.
Included among its reasons for imposing the sentence the District
Court stated, "The Court considered all the facts presented during
trial and that the defendant did not testify."
I - IMPROPER SENTENCING
Kelly contends that the District Court violated his
constitutional rights under the Fifth Amendment to the United
States Constitution and Article 11, section 25 of the Montana
Constitution against self-incrimination when it based the sentence
in part on his failure to testify.
This Court has previously held that to punish a person for
exercising a constitutional right is a basic due process violation.
State v. Baldwin (1981), 192 Mont. 521, 525, 629 P.2d 222, 225. It
i fundamental that a defendant retains important Fifth Amendment
s
rights after the jury reaches a verdict. U.S. v. Rodriguez (5th
Cir. 1974), 498 F. 2d 302, 312. When a defendant invokes his or her
Fifth Amendment privilege against self-incrimination, a sentencing
court may not use his or her failure to waive that right as
negative evidence to penalize him or her in deciding upon the
appropriate sentence. U.S. v. Heubel (3rd Cir. l989), 864 F.2C
1104, 1111.
This Court has recognized the importance of the constitutional
right not to be a witness against oneself. State v. Imlay (19911,
249 Mont. 82, 813 P.2d 979. In Imlav, the defendant was convicted
813 P.2d at 980. The defendant
of felony sexual assault. &&Jay,
received a suspended sentence which contained a special condition
that he complete a sexual treatment program. u,
813 P.2d at
980. Because he would not admit that he committed the offense it
was determined he was not complying with the treatment and his.
suspended sentence was revoked. u,
813 P.2d at 982. This
Court vacated the sentence and remanded because we concluded that
the defendant could not be punished for asserting his
constitutional right against self-incrimination. Imlav, 813 P.2d
at 985.
In the instant case it is clear that the District Court relied
in part on Kelly's failure to testify in imposing the sentence, as
it included this fact in the sentencing order. In doing so, the
District Court violated Kelly's constitutional right to remaii-.
silent. While the State argues that there is no evidence that
Kelly received a harsher sentence than he might have otherwise
received had he testified, and that there were good reasons why he
received a harsh sentence, it is not the defendant's burden to show
that his sentence might have been different if he had testified.
See, State v. Holder (Ariz.App. 1987), 745 P.2d 138, 141 (where a
sentence was reversed because the accused arguably received a
sentence greater than he would have had he admitted guilt). The
sentencing court simply may not consider the defendant's exercise
of his constitutional right to remain silent in the face of his
accuser, much less penalize him for doing so. We therefore remand
for resentencing without consideration of Kelly's failure to
testify.
I1 - QUESTIONING OF VICTIM
The second issue Kelly raises concerns the District Court's
questioning of J.C. during trial. Kelly contends the District
Court committed reversible error when it questioned J.C. in front
of the jury. After J.C. testified, and without first excusing the
jury, the District Court questioned J.C. as follows:
THE COURT: [J.C.] how old did you say you were?
THE WITNESS: At that time or --
THE COURT: Yeah, or your birthday; I don't care.
THE WITNESS: I was eleven, and my birthday is August 29,
1980.
THE COURT: I notice when you were sworn in you raised you7
left hand. Did you know you did that?
THE WITNESS: Yeah.
THE COURT: ~ u that isn't too important. The important thing
t
is what the lady asked you is essentially did you swear. You
swore to tell the truth?
THE WITNESS: Yes.
THE COURT: And you know the difference between the truth and
a lie; don't you?
THE WITNESS: Yes.
THE COURT: Have you told the truth?
THE WITNESS: Yes.
THE COURT: So you do recognize that when you agreed to tell
the truth that was required?
THE WITNESS: Yes.
THE COURT: Okay. Okay. I think that they are through now; is
that correct?
(Whereupon the witness was excused.)
Kelly maintains that because defense counsel did not challenge
JC'
..s competency or attack her credibility, the trial judge should
not have taken it upon himself to question J.C. regarding her
competency. He alleges that the trial court's questioning of J.C.
amounted to impermissible comment on her credibility as a witness,
and therefore we should remand the case for a new trial.
There is no age requirement before a person is considerea
competent to testify. State v. Phelps (1985), 215 Mont. 217, 226,
696 P.2d 447, 453. Rule 601, M.R.Evid., defines witness competency
and that rule provides:
(a) General rule competency. Every person is competent
to be a witness except as otherwise provided in these
rules.
(b) Disqualification of witnesses. A person is
disqualified to be a witness if the court finds that (1)
the witness is incapable of expression concerning the
matter so as to be understood by the judge and jury
either directly or through interpretation by one who can
understand the witness or (2) the witness is incapable of
understanding the duty of a witness to tell the truth.
Because a witness is presumed to be competent under Rule
601(a), the District Court had no obligation to question J.C.
concerning her ability to tell the truth, unless counsel raised the
issue of competency or unless the court had some concerns in that
regard. If the court found it necessary to interrogate J.C., it
should have done so outside the jury's presence. See, State v.
Howie (l987), 228 Mont. 497, 503, 744 P.2d 156, 159. State v.
Phelps (1985), 215 Mont. 217, 225, 696 P.2d 447, 452.
We conclude that the District Court did err in questioning
J.C. in front of the jury. If the court, or counsel, was concerne?,
8
about J.Crs competency, then the court should have established her
competency before she testified and outside the presence of the
jury. We adopt this procedure for future cases.
However, in the instant case we will not reverse Kelly's
conviction for two reasons. First, Kelly failed to make a timely
objection at the first available opportunity, after the court's
voir dire of J.C. Section 46-20-104(2), MCA, provides that failure
to make a timely objection during trial constitutes a waiver of the
objection. The motion for a mistrial did not come until settlement
of instructions, two days after J.C. testified. Therefore we
conclude that Kelly failed to object at the first available
opportunity, thereby waiving his objection.
Secondly, we believe the error was harmless. In State v.
Smith (1984), 208 Mont. 66, 676 P.2d 185, the trial court also
questioned a child witness concerning her competency as a witness
in front of the jury. In that case we noted that although it was
not proper to question the witness in the jury's presence, the
defendant was not prejudiced by the questioning in light of the
overwhelming corroborating evidence. Smith, 676 P.2d at 188.
In the instant case, we find that there was substantial direct
and corroborative evidence of Kelly's guilt. For example, Louis
Hollingshed testified that Kelly visited his apartment with a young
girl, that he saw blood on the kitchen floor, and that Kelly had a
cut on his thigh. Hollingshed asked Kelly what happened and Kelly
replied, "The bitch cut me." Hollingshed also testified that the
young girl was frantic, crying, and emotionally upset.
Angela Schneider testified that J.C. ran to her workplace
shaking and screaming "he is going to kill me," and pointed to a
black man in a blue car. The emergency room doctor who examined
J.C. shortly after the incident testified that she had lacerations
on her fingers, and other injuries consistent with someone who had
been sexually and physically assaulted. The State Crime Lab found
that a blood stain found on J.Cts shirt was consistent with Kelly's
blood, and blood stains on the towel which was taken from Louis
Hollingshed's apartment were consistent with both Kelly's and
J.C.'s blood.
Based on this evidence and other evidence introduced at trial,
we conclude that the District Court's questioning of J.C. was
harmless error, therefore Kelly's conviction is upheld.
REVERSED AND REMANDED FOR RESENTENCIN
We Concur:
June 21, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
William F. Hooks, Esq.
Appellate Defender
P. 0. Box 200145, Capitol Station
Helena, MT 59620-0145
Joseph P. Mazurek, Attorney General
, Assistant
Justice Bldg.
Helena, MT 59620
Dennis Paxinos, County Attorney
Daniel L. Schwarz, Deputy
P.O. Box 35025
Billings, MT 59107
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA