NO. 95-577
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA, ex rel.
JOSEPH P. MAZUREK, ATTORNEY GENERAL,
Relator,
JUL25 1996 j
DISTRICT COURT OF THE MONTANA FOURTH
JUDICIAL DISTRICT, and the
HONORABLE ED MCLEAN, DISTRICT JUDGE,
Respondent.
ORIGINAL PROCEEDING
COUNSEL OF RECORD:
For Appellant:
Joseph P. Mazurek, Attorney General
Chris Tweeten, Deputy Attorney General
Helena, Montana
Karen S. Townsend, Deputy Missoula County
Attorney, Missoula, Montana
For Respondent:
Michael J. Sherwood, Attorney at Law,
Missoula, Montana
Submitted on Briefs: April 18, 1996
Decided: July 25, 1996
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Petitioner, the State of Montana on relation of Attorney
General Joseph P. Mazurek, filed with this Court an application for
writ of supervisory control under Article VII, § 2(Z) of the
Montana Constitution and Rule 17, M.R.App.P. The State's
application requests that we address two orders of the Fourth
Judicial District Court, Missoula County, granting the motions of
defendant Michael Paul Johns (Johns) to admit certain evidence
relating to the misconduct of the alleged victims under the Montana
Rape Shield Law, § 45-5-511(2), MCA. Defendant Johns also filed a
cross-petition for writ of supervisory control.
In its order of April 9, 1996, this Court accepted original
jurisdiction over the issues raised by the State in its application
for writ of supervisory control, declined to accept jurisdiction
over the evidentiary-related issues raised in the cross-petition
for writ of supervisory control, and declined original jurisdiction
over Johns' request to dismiss certain counts of the amended
information.
Factual and Procedural Background
At the time of the alleged incidents, Johns and the victims,
identified as K.C. and L.A., were students attending the University
of Montana-Missoula. Johns is charged with two counts of felony
sexual intercourse without consent and two counts of criminal
endangerment. These counts arise from two separate incidents
involving K.C. and L.A. Johns filed a motion seeking to introduce
evidence relating to the prior sexual history of the alleged
2
victims. Two pretrial hearings have been held in the respondent
District Court pursuant to the Montana Rape Shield Law, codified at
§ 45-5-511(2), MCA. The District Court considered certain evidence
relating to the past sexual conduct of K.C. and L.A. and determined
that the evidence would be admissible at trial.
The State requests that this Court address the following
decisions of the District Court:
(a) The respondent court intends to admit testimony
from a witness named Bob Keissal that he observed L.A.
sitting on the lap of, rubbing against, and fondling a
person named Brad Becker on the night in which the
conduct that is the subject of counts one and three of
the amended information occurred.
(b) The respondent court intends to allow a witness
named Ben Graham to testify that L.A. was "hitting on
every guy in sight" and sitting on Brad Becker's lap on
the night in which the conduct that is the subject of
counts one and three of the amended information occurred.
(c) The respondent court intends to allow a witness
named Brad Woons to testify that after the conduct that
is the subject of counts one and three of the amended
information occurred, L.A. came into his dormitory room,
eventually undressed, lay down on a bed in the dormitory
room, and appeared to masturbate.
Cd) The respondent court intends to allow a witness
named Brian Mothershead to testify from personal
knowledge that L.A., while in high school, became
intoxicated and spent the night in a motel room, waking
up unclothed and wrapped in a blanket in the company of
several men the following morning.
(e) The respondent court intends to allow a witness
named Shannon Sims to testify from personal knowledge to
the same incident described in (d) above.
(f) The respondent court intends to allow witnesses
Daryl and Jean Toews to testify that K.C. made and
recanted false allegations of sexual assault against Chad
Reddig.
This Court accepted jurisdiction over the issues raised in the
3
State's petition for writ of supervisory control.
This Court has stated that:
"Supervisory control is an extraordinary remedy, to
be exercised only in extraordinary circumstances. we have
s a i d that to justify such a writ an exigency or
emergency must be shown to exist, or that a gross
injustice would result from a denial of the writ, and the
absence of other adequate relief. . . [Supervisory
control1 has its own appropriate functions, and, without
undertaking to define particularly what these functions
are, we think one of them is to enable this court to
control the course of litigation in the [district] courts
where those courts are proceeding within their
jurisdiction, but by mistake of law, or willful disregard
of it, are doing a gross injustice, and there is no
appeal or the remedy by appeal is inadequate. . 'I
State ex rel. Forsyth v. District Court (19851, 216 Mont. 480, 484,
701 P.2d 1346, 1348 (quoting State ex rel. O'Sullivan v. District
court 11946), 119 Mont. 429, 431-32, 175 P.2d 763, 764); accord
State ex rel. Mapes v. District Court (1991), 250 Mont. 524, 528-
29, 822 P.2d 91, 94. In our order of April 9, 1996, we determined
that this case implicates such "extraordinary circumstances" as are
contemplated in Forsvth and Manes, and, consequently granted the
State's petition. The State correctly notes that s 46-20-103, MCA,
provides the scope of issues from which the State may appeal in a
criminal case and that evidentiary rulings under the Rape Shield
Law, § 45-5-511(2), MCA, are not included. &e State ex rel. Dep't
of Justice v. District Court (19771, 172 Mont. 88, 93, 560 P.Zd
1328, 1331 (discussing the appropriateness of the writ in the
absence of an adequate remedy at law). Therefore, if the District
Court erroneously admits this evidence at trial, the State has no
adequate remedy on appeal.
In addition, the State asserts that the Rape Shield Law was
4
enacted to protect victims from further trauma at trial by
restricting the admissibility of evidence relating to the victim's
prior sexual conduct. Once a trial is held and the testimony has
been presented in open court, the injury which the statute is
intended to prevent will have been inflicted upon the victim. A
later decision of this Court would be wholly ineffective in
rectifying the injury to the victim. For these reasons we granted
the State's petition for writ of supervisory control.
Discussion
In reviewing a district court's decisions regarding the
admissibility of evidence relating to the extrinsic sexual conduct
of sexual assault victims under § 45-5-511, MCA, we determine
whether the district court abused its discretion. State v. Howell
(1992), 254 Mont. 438, 445, 839 P.2d 87, 91, cert. denied, 507 U.S.
1036 (1993); State v. Rhyne (1992), 253 Mont. 513, 518-19, 833 P.Zd
1112, 1116. The State argues that the District Court's rulings on
the admissibility of the testimony labeled as issues (a) through
(f) violate Montana's Rape Shield Law. Section 45-5-511, MCA, the
Rape Shield Law, provides in relevant part:
(2) No evidence concerning the sexual conduct of
the victim is admissible in prosecutions under this part
except evidence of the victim's past sexual conduct with
the offender or evidence of specific instances of the
victim's sexual activity to show the origin of semen,
pregnancy, or disease which is at issue in the
prosecution.
13) If the defendant proposes for any purpose to
offer evidence described in subsection (Z), the trial
judge shall order a hearing out of the presence of the
jury to determine whether the proposed evidence is
admissible under subsection (2').
5
The State asserts, and we agree, that the statute recognizes only
two instances in which the sexual conduct of a victim may be
admitted and that neither circumstance is satisfied in the instant
case. First, such evidence may be admitted where the conduct
involves the defendant as a participant. Second, such evidence may
be admitted where an issue exists as to the origin of semen,
pregnancy or disease, and the victim's sexual conduct is probative
on that issue. Section 45-5-511(2), MCA.
In State v. Fitzgerald (1989), 238 Mont. 261, 263, 776 P.2d
1222, 1223, the defendant wanted to present testimony that the
victim was a prostitute. Fitzgerald argued that he and the victim
acted consensually and that the victim fabricated the rape story so
that she would not have to face her pimp with no earnings for the
evening. The district court refused to allow this line of
questioning and we affirmed. Fitzqerald, 776 P.2d at 1223. Like
Johns in the present case, Fitzgerald asserted that this line of
questioning was relevant to the victim's veracity and essential to
his right of confrontation. This Court, however, has repeatedly
rejected this assertion. State v. Higley (19801, 190 Mont. 412,
422-23, 621 P.2d 1043, 1050. In Hialev we stated that "rules
limiting inquiry into sexual conduct of the victim are essential to
preserve the integrity of the trial and to prevent it from becoming
a trial of the victim." Hiqley, 621 P.2d at 1050-51. This Court
has consistently upheld the exclusion of prior sexual conduct
evidence rejecting claims that the Sixth Amendment of the United
States Constitution and Article II, 5 24 of the Montana
Constitution guarantee the defendant the right to introduce such
evidence. Howell, 839 P.2d at 91; Hisley, 623 P.2d at 1050. we
have held that the Sixth Amendment right of confrontation is not
absolute and that the Rape Shield Law serves a compelling state
interest in preventing rape trials from becoming trials on the
prior sexual conduct of the victims. Howell, 839 P.Zd at 91;
Fitzqerald, 776 P.2d at 1223-24. In balancing the rights of
victims and the rights of the defendant we have stated that:
"The Sixth Amendment is not absolute, and 'may bow to
accommodate other legitimate interests in the criminal
trial process.' [Chambers v. Mississippi (19731, 410
U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297, 309.1
The rape shield statute has been upheld as a legitimate
interest justifying curtailment of the constitutional
right to confront witnesses."
State v. Steffes (1994), 269 Mont. 214, 230, 887 P.2d 1196, 1206
(quoting Howell, 839 P.2d at 91).
Although the testimony outlined in issues (a) through (c) all
relates to victim L.A.'s sexual conduct on the date of the alleged
incident, none of it involves defendant Johns as a participant nor
is there an issue relating to semen, pregnancy or disease. In this
case, as in Fitzgerald, "neither of the two statutory exceptions
applies _'I Fitzqerald, 776 P.2d 1223. Accordingly, we
conclude that the District Court abused its discretion in finding
the evidence referred to in issues (a) through (c) to be
admissible. The testimony is inadmissible under 5 45-5-511(2),
MCA.
The testimony outlined in issues (d) and (e) relates to
incidents that occurred on dates prior to the dates of the alleged
incidents. Specifically, the testimony relates to L.A.'s conduct
while in high school. The State asserts, and we agree, that this
testimony also violates § 45-5-511(2), MCA. The District Court
determined that the testimony of Brian Mothershead, a high school
classmate of L.A.'s, would be admissible if based on his personal
knowledge and that the testimony of Shannon Sims, another
classmate, would also be admitted. As in issues (a) through (c),
Mothershead's and Sims' testimony would not relate to events in
which defendant Johns was a participant nor would it relate to
semen, pregnancy or disease. Rather, it relates to alleged prior
sexual acts which tend to impugn L.A.'s reputation. This is
precisely the type of testimony that the Rape Shield Law was
designed to prohibit. Fitzqerald, 776 P.2d at 1224; Hialev, 621
P.Zd at 1050-51. The victim's prior sexual conduct is not on
trial. Thus, we conclude that the District Court abused its
discretion in determining that this testimony would be admissible.
In issue (f), the State requests that this Court review the
District Court's decision to allow the testimony of Daryl and Jean
Toews The Toews would testify that K.C. had made and recanted
false allegations of sexual assault against her former husband,
Chad Reddig. Again, the State asserts that this testimony would
violate 5 45-5-511(Z), MCA. Johns responds that the testimony
should be allowed based on this Court's opinion in State v.
Anderson (1984), 211 Mont. 272, 686 P.2d 193. In Anderson, we
stated that:
[Elvidence of prior false accusations of the same sexual
crime involved in a more current case, while not
8
admissible for the purpose of impeaching the general
character or reputation of the witness, may be admissible
if probative of the witness' state of mind, motive, or
biases with respect to making the more current
accusations.
Anderson, 686 P.2d at 199 (citing People v. Hurlburt (Cal. Ct. App.
1959), 333 P.2d 82, 87). In Anderson, we recognized that most
jurisdictions have determined that "evidence of prior false charges
may often be probative of the complaining witness' specific
reputation for untruthfulness." Anderson, 686 P.2d at 199
(surveying other jurisdictions and collecting cases). We
determined that "evidence of similar sexual offenses claimed to
have been committed against the victim by other individuals is
admissible if the offenses were proven or admitted to be false."
Anderson, 686 P.2d at 200. The offered evidence must be "narrowed
to the issue of the complaining witness' veracity." Anderson, 686
P.2d at 200 (citing Hall v. State (Ind. Ct. App. 1978), 374 N.E.2d
62). In addition, we cautioned that:
If the charges are true or reasonably true, then evidence
of the charges is inadmissible, mainly because of its
prejudicial effect [citation omitted] but certainly
because of its irrelevance to the instant proceeding.
[Citations omitted.] Furthermore, evidence of prior
charges which have not been adjudicated to be true or
false; i.e., which may be true or false is also
inadmissible, primarily because its introduction
circumvents the interest in preserving the integrity of
the trial and preventing it from becoming a trial of the
victim.
Anderson, 686 P.2d at 200. In Anderson, we directed that a
separate hearing outside the jury's presence should be held in
order to establish whether there was sufficient support for the
contention that the prior allegations were false. Anderson, 686
9
P.2d at 200 (citing People v. Sheperd (Cola. Ct. App. 1976), 551
P.Zd 210, 212). In Anderson, such a hearing had been held in the
district court and we determined that the court did not err in
excluding the evidence. We noted that the charges had never been
tested for their truth or falsity and were still disputed at the
time of trial. Anderson, 686 P.2d at 200.
Contrary to Justice Nelson's concurring and dissenting
opinion, we have not expanded our prior holding in Anderson. The
dissent argues that, under Anderson, in order to be admissible in
the present proceeding, prior charges must have been actually filed
against another person as a result of the victim's accusations and,
secondly, that there must have been, separate and distinct from the
present proceeding, a prior adjudication that the charges were
false. As to the first prong, an actual filing of charges,
although Anderson involved a situation where actual charges had
been filed and later dismissed, the opinion does not state that
such an actual filing is a prerequisite to admissibility. As to a
requirement of a prior adjudication in a separate proceeding,
Anderson clearly does not require this. Rather, Anderson requires
that the district court conduct a hearing outside the presence of
the jury to determine whether there is sufficient evidence to
support the contention that the allegation was false. Such an in
camera determination of falsity satisfies the "adjudication"
requirement in the absence of a prior adjudication in a separate
proceeding. In Anderson, the district court determined that there
was not sufficient support to make a determination of falsity.
10
Thus, it refused to allow evidence of the alleged false accusation
and the issue did not go to the jury. However, if the district
court, in its in camera hearing, had determined that the prior
charges were false, Anderson envisions that the matter would then
have been presented to the jury for its judgment. The present
case, in which the District Court determined that the prior
accusation was false, is a variation of the process contemplated by
this Court in Anderson.
In Anderson, we recognized that "limiting or barring a
defendant's cross-examination of a complaining witness in a sex
crime case where there is evidence of prior false accusations
restricts defendant's enjoyment of the worth of his constitutional
rights to confront witnesses." Anderson, 686 P.2d at 200 (citing
Hughes v. Raines (9th Cir. 1981), 641 F.2d 790, 792); State v.
Corella (Haw. Ct. App. 1995), 900 P.2d 1322, 1327-28. Thus, if
this Court were to adopt the approach suggested by Justice Nelson's
concurring and dissenting opinion, without citation to any
authority, and approve of such a restriction on cross-examination
of a complaining witness, we would arguably infringe upon the
defendant's Sixth Amendment right to confront witnesses. See
Huqhes, 641 F.2d at 792.
In Anderson this Court did not set forth any procedure to
govern the in camera hearing or the presentation of "prior false
accusation" evidence to a jury. We take this opportunity to do so.
In Miller v. State (Nev. 1989), 779 P.2d 87, 90, the Nevada Supreme
Court was confronted with a question as to the admissibility of
11
evidence relating to the complaining witness' allegations of prior
sexual assault and sexual abuse which the defendant asserted were
false. The Nevada Supreme Court determined that "a threshold
inquiry must establish both the fact of the accusations and the
falsity thereof even before defense counsel launches into cross-
examination." Miller, 779 P.Zd at 90 (citation omitted).
Accordingly, the Nevada Supreme Court outlined the following
procedure that must be followed if a defendant in a sexual assault
case proposes to cross-examine the complaining witness about prior
and allegedly false accusations of sexual abuse or assault and to
introduce corroborative evidence. First, prior to such
questioning, counsel must file written notice of his intent. Then,
as this Court recognized in Anderson, the trial court must order a
hearing outside the presence of the jury to determine the propriety
of such questioning and the admissibility of the corroborative
evidence. The Nevada Supreme Court directed that:
In making such a determination, the defendant must
establish, by a preponderance of the evidence, that (1)
the accusation or accusations were in fact made; (2) that
the accusation or accusations were in fact false; and (3)
that the evidence is more probative than prejudicial.
[Citation omitted.] If the defendant satisfies these
three conditions, the trial court will authorize cross-
examination of the complaining witness concerning the
alleged false accusations. The defendant may thereafter
present extrinsic evidence of the false accusations only
if the complaining witness denies or fails to recall
having made such accusations.
Miller, 779 P.2d at 90. The foregoing analysis is consistent with
this Court's holdings in both Anderson and Hislev in that it seeks
to prevent the trial from becoming a trial of the victim.
Accordingly, we adopt the reasoning and procedures of the Nevada
12
Supreme Court as set forth in Miller.
In the instant case, the District Court held a hearing outside
the presence of the jury and determined, first, that K.C. had made
accusations of rape and, second, that K.C.'s prior allegations of
rape against Reddig were false. The court stated that "[bIased on
the testimony of Mr. and Mrs. Toews and Arthur Gray, the Court
finds that there were false allegations made by [K.C.] against Chad
Reddig and Brian Miller, and testimony regarding those allegations
is admissible at the trial of this case." The District Court did
not determine, however, whether the proffered evidence would be
more probative than prejudicial as the third prong of the test we
now adopt requires. Accordingly, we remand this case to the
District Court for this determination. If the District Court
determines that the evidence is more probative than prejudicial, as
the court recognized in Miller, extrinsic evidence of the false
accusations may be presented only if the complaining witness denies
or fails to recall having made such accusations. Miller, 779 P.2d
at 90.
As we recognized in Anderson, this type of evidence has the
potential to transform the trial from a trial of the defendant for
specific criminal acts into a trial of the victim or victims.
Accordingly, such evidence of prior sexual assault allegations
adjudicated to be false or admitted to be false must be narrowed to
the issue of the complaining witness' veracity. Anderson, 686 P.Zd
at 200 (citinq Hall, 374 N.E.2d at 65).
The orders of the District Court dated November 27. 1995 and
13
December 7, 1995, holding the testimony described in issues (a)
through (e) to be admissible are reversed, while the decision of
the District Court holding the testimony described in issue (f) to
be admissible is remanded with direction to determine whether the
proffered evidence is more probative than prejudicial. This case
is remanded to the District Court for proceedings consistent with
this opinion.
We concur:
Justices
14
Justice James C. Nelson specially concurs and dissents.
I concur with all that is said and in our decision on issues
(a) through (e). I dissent from our decision on issue (f),
regarding the allegations of sexual intercourse without consent
made by K.C. against her former husband, Chad Reddig.
At the outset, given the specific provisions of Montana's Rape
Shield Statute, 5 45-5-511(2) and (3), MCA, and the very narrow
limitations under which evidence concerning sexual conduct of the
victim is admissible, none of which are at issue here, I have
serious reservations about the correctness of our decision in State
v. Anderson (1984), 211 Mont. 272, 686 P.Zd 193.
That case stands presently as the law of Montana, however, and
having expressed my initial concern, I nonetheless, believe that we
have misapplied the rule in Anderson. My disagreement with our
decision in the instant case flows from what I view is an expansion
of the sort of evidence that is admissible under the Anderson
rationale.
In Anderson, prior to the incident there at issue, the victim
made accusations of unlawful sexual conduct against an individual
(Bratcher) and, as a result, criminal charges were actually brought
against that individual. The criminal charges were dismissed
without any actual adjudication of the truth or falsity of the
accusations. However, the allegations underlying those charges
were still disputed by Bratcher at the time of Anderson's trial.
Anderson, 686 P.2d at 200. Moreover, we pointed out that
Anderson's offer to have Bratcher's attorney testify that Bratcher
15
had denied the charges was irrelevant because the attorney's
testimony was inadmissible on the ground that mere denial does not
establish falsity and because the testimony would have been
inadmissible hearsay under Rule 801(c) and 802, M.R.Evid.
Anderson, 686 P.Zd at 200. We concluded,
In short, the offered evidence would not have been
probative of R.F.'s inclination for truthfulness or
untruthfulness, as maintainedby defendant, but certainly
would have placed a prejudicial stamp on her general
character and reputation [and that this]
irrelevant, prejudicial evidence would have shifted the
focus of trial away from its central purpose and thus had
to be barred.
Anderson, 686 P.Zd at 201.
In the instant case, the offered evidence is even more
tenuous. Here, no criminal charges were filed against K.C.'s
former husband as a result of K.C.'s allegations of non-consensual
sexual intercourse. It does not appear that she even made these
allegations to the authorities, but rather that she made her
statements to acquaintances. K.C.'s former husband, Reddig,
disputed K.C.'s allegations, but his mere denial does not establish
falsity. Anderson, 686 P.2d at 200. K.C. maintained that the
accusations were accurate, and the actual truth or falsity of those
allegations--which never even rose to the level of criminal charges
--was at no time adjudicated prior to the instant proceedings. It
appears from the briefs that the evidence at the in camera hearing
basically involved a swearing match between K.C. and the Toews, who
claimed she had recanted the accusations against Reddig.
In my view, OUT requirement in Anderson that, to be
admissible, evidence of prior charges must have been adjudicated to
16
be true or false, contemplates first, that criminal charges were
actually filed on a prior occasion against someone other than the
defendant in the proceeding then at issue on the basis of the
victim's accusations, and second, that there was an adjudication on
the merits of those charges that ended in a final judgment or
verdict that the charges were false. Proof of the false accusations
must then still be shown to be probative of the state of mind,
motive or biases respecting the victim's current allegations--not
simply as a general attack on her character, and, in addition, such
evidence must be more probative than prejudicial.
The in camera hearing referred to in Anderson and now required
as a result of our decision here should be limited to the factual
and legal determinations discussed in the preceding paragraph. To
allow, as we have here, the merits of the victim's prior, disputed
accusations to be "adjudicated," in a summary in camera hearing, as
part of an unrelated criminal trial, for the sole purpose of
allowing the defendant to offer testimony impeaching the victim's
current testimony, accomplishes in spades exactly what the Rape
Shield Statute and our decisions in Hislev, Anderson and their
progeny sought to avoid--a trial of the victim within the trial of
the current defendant.
Indeed, here, in addition to the court's in camera
"adjudication" there will be a second "trial within a trial." I
assume that our opinion does not permit the trial judge to instruct
the jury that he has found the victim's prior accusations to be
false. Accordingly, when those prior accusations are brought into
17
the current trial in the context of the victim, on cross-
examination, admitting she made the accusations, that they were
true and that she did not recant and the Toews then testifying that
she did recant, the jury will have to "adjudicate" the truth or
falsity of the prior accusations a second time in another mini-
trial of the victim's character and credibility. This procedure
not only flies directly in the face of the prior "adjudication"
requirement of Anderson, (we have never held that the current trial
jury is allowed to decide the truth or falsity of the prior
charges), but, obviously, this procedure also shifts the focus of
the jury away' from the merits of the current charges against the
defendant--again contrary to the purpose of the Rape Shield Statute
and rulings under our prior case law.
Contrary to the implication in the opinion of the Court, the
in camera hearing in Anderson did not adjudicate the merits of the
prior charges which the complaining witness had made against
Bratcher. Rather, the hearing in that case went simply to the
reasons why such charges had not been adjudicated to be true or
false in a previous trial on the merits. Because the testimony at
the Anderson in camera hearing demonstrated that the prior
accusations had not been proven false or admitted to be false, (as
opposed to whether the charges were true or false), we concluded
that the trial court properly rejected Anderson's attempts in his
trial to prove the falsity of the prior charges and that the court
properly excluded evidence of the victim's prior accusations.
Anderson, 686 P.2d at 201. The approach which I have suggested
here is precisely the same. The majority's statements to the
contrary, Anderson did not sanction a trial of merits of the
victim's prior accusations within the trial of her allegations
against the current defendant. That case stands for a much
narrower procedure than we have adopted here.
While the defendant's Sixth Amendment right of confrontation
is an important one, we have also been careful to balance that
right against those of the victim and have held that
[tlhe Sixth Amendment is not absolute, and "may bow to
accommodate other legitimate interests in the criminal
trial process."
State v. Steffes (1994), 269 Mont. 214, 230, 887 P.2d 1196, 1206,
(citing State v. Howell (1992), 254 Mont. 438, 445-46, 839 P.2d 87,
91.) See also State v. Stuit (1994), 268 Mont. 176, 183, 885 P.2d
1290, 1295 (collecting cases). I fail to see how this defendant's
"enjoyment of the worth of his constitutional right to confront
witnesses" is restricted by requiring in the instant case the same
sort of narrow, balanced approach that we approved in Anderson.
In Hughes v. Raines (9th Cir. 1981), 641 F.2d 790, the
defendant asserted that his right to confrontation was denied when
the trial court precluded him from questioning the complaining
witness regarding an attempted rape accusation she had previously
made against another person. The Ninth Circuit Court of Appeals,
stating that the right to confront witnesses is not unlimited,
concluded that the object of the intended cross examination in
Hushes was not to establish bias against the defendant, but was
merely to attack the general credibility of the witness on the
19
basis of an unrelated prior incident. Huahes, 641 F.2d at 793.
Thus, the Court of Appeals held that the trial court's limitation
of cross examination on this issue was not a violation of the
defendant's confrontation rights.
The same result should obtain here, given that the defendant
has failed to demonstrate, and the majority has failed to explain,
how exactly K.C.'s prior allegations against her former husband are
probative of her state of mind, motive or biases in making her
current accusations. Anderson, 686 P.Zd at 201. Purely and
simply, and contrary to Huqhes, we are allowing the defendant here
to attack K.C.'s character and credibility on the basis of mere
prior accusations that remain disputed.
Finally, it is not subject to serious dispute that many rapes
presently go unreported and unprosecuted (especially on college
campuses) simply because the victims of those assaults fear being
victimized a second time by the criminal justice system. For that
reason, Montana's Rape Shield Law and, until now, our cases have
very narrowly limited the circumstances under which inquiry may be
made of the victim regarding sexual matters not involving the
current accused. Our decision here is supported by neither source
of authority and is, decidedly, a giant step backward to a time
when we instructed juries that, where consent is at issue, "the
charge of rape is easily made and difficult to refute" and
requiring the rape victim's testimony to be viewed with caution.
See State v. Smith (1980), 187 Mont. 245, 609 P.2d 696 (holding
that the trial court committed reversible error in failing to so
20
instruct) and State v. Liddell (19841, 211Mont. 180, 685 P.2d 918,
(overruling Smith).
I would hold that evidence of K.C.'s prior accusations against
Reddig is inadmissible, and I dissent from our failure to do so.
Justice Karla M. Gray concurs in the foregoing special concurrence
and dissent.
21
Justice Terry N. Trieweiler, dissenting and concurring.
I dissent from this Court's order dated April 9, 1996, in
which it granted the State's application for supervisory control,
but denied the cross-petition filed on behalf of the defendant,
Michael Paul Johns. The defendant's cross-petition raised
significant issues which could be dispositive of the charges
against him, or at least significantly affect the outcome of his
trial. Because the Court has declined to accept supervisory
control to decide these issues, prolonged and expensive litigation
will result which, based on representations of the parties, will
substantially exhaust the life-time savings of the defendant's
family. Under these circumstances, treatment of these issues by
appeal following trial is not an adequate remedy.
I concur with the majority's decision to reverse the District
Court and exclude evidentiary items (d) and (e)
I specially concur with the majority's decision regarding
evidentiary item (f) which relates to past allegations of sexual
assault made by K.C. However, I do not agree that the testimony
relates to sexual conduct of the victim, and therefore, do not
concur with all of the majority's discussion of that issue.
I dissent from that part of the majority opinion which would
exclude that evidence referred to in paragraphs (a), (bl, and (cl.
I conclude that those acts are admissible pursuant to the
transaction rule found at s 26-I-103, MCA, and that to exclude them
violates constitutional rights of confrontation guaranteed by the
22
Sixth Amendment of the United States Constitution, and Article j-1,
Section 24, of the Montana Constitution
In ~%?7/ev. Wing (1994), 264 Mont. 215, 870 P.2d 1368, defendants
were charged with sexual intercourse without consent based on
conduct that occurred at a party where several other persons were
present. Following the acts which formed the bases for the charges
against the defendants, three other persons allegedly engaged in
nonconsensual sexual intercourse with the victim. At trial, the
district court allowed the victim to testify about not only the
acts committed by the defendants, but also those acts committed by
the other three people. Defendants contended on appeal that the
evidence of other acts should have been excluded because it was not
related to their conduct and its probative value was outweighed by
its prejudicial effect. This Court, however, held that the
evidence was part of a single transaction which was admissible to
explain the circumstances surrounding the charged offenses. We
stated that:
The concepts embraced by the term resgestae are included
within the codification of that common law doctrine in
5 26-l-103, MCA, also referred to as the "transaction"
rule, which provides as follows:
26-l-103. Declaration, act, or omission which is
a part of the transaction. Where the declaration,
act, or omission forms part of a transaction which
is itself the fact in dispute or evidence of that
fact, such declaration, act, or omission is
evidence as part of the transaction.
Whether an act is referred to as part of the resgestae or
as part of the "transaction," that act is evidence which
is part of the same litigated event.
23
For example, it is well established that evidence
which tends to explain circumstances surrounding the
charged offense is relevant, probative and competent.
When the court is not dealing with the introduction of
evidence of wholly independent or unrelated crimes, the
evidence is properly admitted. state V. Cameron (1992) , 255
Mont. 14, 20, 839 P.Zd 1281, 1285. In Cameron, we also
pointed out that evidence may be admissible if it is
closely related to and explanatory of the offense.
Camevon, 839 P.Zd at 1287. See also state v. Riley (1982) , 199
Mont. 413, 426, 659 P.2d 1273, 1279.
To be admissible, evidence must be relevant,
competent and material. These concepts of admissibility
are included in Rules 401 and 402, M.R.Evid., relating to
relevancy. Generally, evidence is relevant if it
logically and naturally tends to establish a fact in
issue. Stutev.Smith (1986), 220 Mont. 364, 376, 715 P.2d
1301, 1308.
[Aldmissibility is predicated on the jury's right
to hear what transgressed immediately prior and
subsequent to the commission of the offense
charged, so that they may evaluate the evidence in
the context in which the criminal act occurred.
Acts of a defendant subsequent to the alleged
commission of the crime, and intertwined therewith,
are highly probative. (Citation omitted.)
Stntev.Moove (1992), 254 Mont. 241, 246, 836 P.2d 604, 607
We conclude that the victim's testimonial evidence
about the sexual acts committed by Gary Wing and Scott
and Mike Sheehan WELS admissible as part of the
transaction and as such, the District Court did not abuse
its discretion by admitting it because such testimony was
relevant according to Rule 402, M.R.Evid., which provides
that "[a]11 relevant evidence is admissible."
Wing, 264 Mont. at 224-25, 870 P.2d at 1374.
In this case, Johns admits that he engaged in sexual acts with
L.A., but contends that she consented to those acts. Evidentiary
items (a), (b), and (c), which relate to L.A.'s conduct immediately
before and immediately after her encounter with Johns, were as
probative and relevant to the issue of her consent, as was the
24
evidence we found admissible in Wing. If the jury had a right to
hear what "transgressed immediately prior and subsequent to the
commission of the offense charged, so that they may evaluate the
evidence in the context in which the criminal act occurred" in Wing,
why is similar evidence less helpful to the jury in this case?
Because we have, in the past, held that conduct which is part
of the same transaction is helpful to explain circumstances
surrounding the charged offense, and therefore, relevant,
probative, and competent, I conclude that arbitrarily excluding
such evidence based on a legislative decision denies the defendant
the right to fully and fairly confront and cross-examine his
accuser in violation of the Sixth Amendment of the United States
Constitution, and Article II, Section 24, of the Montana
Constitution.
For these reasons, I would affirm the District Court's order
which admitted that evidence pertaining to L.A.'s conduct
immediately before and after her encounter with Johns. I dissent
from that part of the majority opinion which holds otherwise.
Justice William E. Hunt, Sr., j,6,ins in the foregoing dissent and
concurrence of Justice Terry N. Trieweiler.
25
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States prepaid, to the
following named:
JOSEPH P. MAZUREK, Attorney General
Chris Tweeten, Deputy A.G.
21.5 N. Sanders, Justice Building
Helena, MT 59620
KAREN S. TOWNSEND
Deputy Missoula County Attorney
200 West Broadway, Courthouse
Missoula, MT 59802
MICHAEL .I. SHERWOOD
Attorney at Law
P.O. Box 8358
Missoula, MT 59807
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA