State v. Brodniak

No. 85-104
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JAMES M. BRODNIAK,
Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of MissouZa,
The Honorable James B. Wheelis, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Ferguson & Mitchell; Carol A. Mitchell argued,
Missoula, Montana
C. William Boggs argued, Missoula, Montana

For Respondent:
Mike Greely, Attorney General, Helena, Montana
Dorothy McCarter argued, Asst. Atty. Genera.1
Robert I,. Deschamps, 111, County Attorney, Missoula,
Montana; Karen Townsend argued, Deputy County Atty.

Submitted: February 6, 1986
Decided: April 30, 1986

Filed: APR ;1; 1986

Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

Appellant, James Brodniak, appeals from a judgment of
conviction of sexual intercourse without consent after a jury
verdict in the District Court, Fourth Judicial District,
County of Missoula.
The facts of this case are as follows: on the evening
of May 10, 1984, Debbie Preston, a 22-year-old woman,
accompanied a friend, Diane Green, to a howling league
banquet at the Press Box in Missoula. While at the Press
Box, Preston consumed six drinks. At approximately 9:30
p.m., the two women left the Press Box and went to the Trails
West Tavern in Missoula.
Upon entering the Trails West, Preston observed Brodniak
whom she had met once before. The two women then joined a
third woman, Diane Gettes. Eventually, Brodniak came over
and sat with the three women. While at the Trails Flest,
Preston consumed four more drinks.
At approximately 1:30 a.m., Green announced she had to
go home. Preston testified that she was not ready to go home
yet so rather than leaving with Green, she accompanied Green
to her car to retrieve her belongings and then returned to
the bar with the intention of asking Gettes for a ride home.
Preston, further, testified that when she returned from
retrieving her belongings from Green's car, she asked
Brodniak for a ride home because she could not find Gettes in
the bar. Gettes, however, testified. that Preston had made
plans to leave with Brodniak before Green ever left the bar
and that when Green asked Preston if she wanted a ride home,
P r e s t o n s a i d , "No, I ' m g o i n g w i t h him. W a r e going t o g e t a
e

c a s e and t a l k . " G e t t e s a l s o t e s t i f i e d t h a t s h e had n o t l e f t

t h e b a r w h i l e P r e s t o n was r e t r i e v i n g h e r b e l o n g i n g s , b u t had

b r i e f l y gone t o t h e r e s t r o o m .

A t approximately 1:45 a.m., P r e s t o n l e f t t h e T r a i l s West

with Brodniak. From t h e T r a i l s West, t h e two d r o v e t o a

nearby Mini Mart t o buy a s i x pack o f b e e r , a s P r e s t o n had

agreed t o "have a d r i n k o f beer and go t a l k . " They t h e n

drove to a dormitory parking lot at the University of

Montana. Both P r e s t o n and Brodniak a g r e e d t h a t w h i l e a t t h e

parking lot they drank some beer and talked. Brodniak,

however, further testified that he and Preston "started

making o u t " while a t t h e parking l o t .

From t h i s p o i n t t h e t e s t i m o n y o f P r e s t o n and Brodniak

conflicts. Preston testified as follows: after drinking

some b e e r and t a l k i n g f o r a w h i l e a t t h e u n i v e r s i t y p a r k i n g

I.ot, she asked Brodniak to take her home because s h e was

tired. Brodniak t o l d h e r he would t a k e h e r home, b u t i n s t e a d

d r o v e t o P a t t e e Canyon. Upon l e a v i n g t h e u n i v e r s i t y p a r k i n g

lot, Brodniak turned the wrong d-irection t o take Preston

home, b u t it d i d n o t dawn on h e r . A f t e r r e a l i z i n g t h e y were

g o i n g t o P a t t e e Canyon, P r e s t o n t o l d Brodniak s h e d i d n ' t want

t o go t h e r e b e c a u s e s h e was a f r a i d of the area. She had

heard about d e v i l worshippers i n t h e area. Upon a r r i v i n g i n

Pattee Canyon, Brodniak parked by the campground, then

grabbed P r e s t o n ' s h a i r and r e a c h e d a c r o s s h e r and l o c k e d t h e

door. Brodniak t o l d h e r h e wanted t o make l o v e t o h e r and

s h e responded "No." He t h e n f o r c e d h e r t o c0mmi.t o r a l s e x ,

making h e r t a k e o f f a l l h e r c l o t h e s , i n c l u d i n g h e r s h o e s and

socks. H e c o n t i n u e d p u l l - i n g h e r h a i r t o f o r c e h e r t o comply

with h i s wishes. After the oral sex, Brodniak f o r c e d h e r
between the seats and forced sexual intercourse, both vaginal
and anal. Brodniak then opened her door, shoved her head
out, and began choking her. Brodniak told her he was going
to kill her, and also threatened her mother. He then forced
her to have oral sex and intercourse with him again.
Afterwards he "snapped out of things" and told her to get
dressed. Brodniak then drove her to a corner near Green's
house, where she had asked to be dropped off. When she
arrived at Green's house Preston told her what happened, left
the house hysterical and was walking down the street when
Green caught up with her. Green eventually took Preston to
her own home where Preston lived with her mother. Preston's
mother then took her to the hospital.
Brodniak's version of the facts varies considerably.
Brodniak testified that they left the university parking lot
because Preston had to go to the bathroom and that she
suggested that they go to "some wooded area where nobody
would. see her." Brodniak testified that he then drove to
Pattee Canyon, parked his car, and helped Preston out.
Preston then walked down into a borrow pit, stood in the
water, and urinated. Other witnesses who saw Preston that
4
morning testified she was not wearing her shoes 'because they
were wet. It was Preston's contention tha.t.Brodniak never
let*,her out of the car and that her shoes were wet because
she spilled a beer on them. Brodniak ma.intained that they
went to the campground in Pattee Canyon, parked and started
necking. Brodniak further testified that they proceeded to
engage in consensual sexual acts. He, however, also
testified that toward the end of the sexual encounter, he
became violent, pulling Preston's hair and choking her. He
testified that very soon after his outburst he took Preston
home.
At the hospital, Preston was examined by Dr. Joseph
Wyatt, who testified as to her physical condition. I?'yatt
testified that Preston was experiencing vaginal soreness; she
had blood on her underclothes and around her vagina; she had
a scratch on her chest; she had blood inside her vagina; and
she had an inch-long, bleeding tear at the edge of her anus.
Dr. Wyatt stated that Preston's physical condition was
"probably not common" as a result of consensual intercourse.
While at the hospital, Preston was interviewed by Deputy
Phillip Tilman. He retrieved for evidence the clothes
Preston was wearing and a large ball of hair hanging from her
head. The nurse that attended Preston at the hospital
testified that a "gross amount" of Preston's hair came out
when she combed her hair and that her scalp appeared to be
tender while she was combing her hair.
During the police investigation, Brodniak's car was
searched, and the investigators found several of Preston's
hairs in the front seat and one of her earrings on the floor
of the backseat. This evidence was examined at the State
Crime Lab. Arnold Melnikoff, bureau Chief of the Crime Lab,
testified that the long hairs in the car belonged to Preston
and that most of those hairs and the hair in the large ball
had been pulled from her head with painful force.
Dr. Hernan Walters, a psychologist, examined Preston at
the State's request to determine her psychological condition
and to recommend treatment. After interviewing Preston
several times, Walters concluded that Preston's psychological
condition was consistent with all the symptoms of the post
traumatic stress disorder known as rape trauma syndrome.
 As a result of the above events, Brodniak was charged
with sexual intercourse without consent. Trial was held in
the District Court and the jury returned a verdict against
Brodniak, finding him guilty of the charge of sexual
intercourse without consent. Subsequently, Rrodniak was
sentenced to 20 years in the Montana State Prison.
Brodniak raises six issues on appeal:
1. Whether the State's "expert" testimony concerning
rape trauma syndrome, and other matters, should have been
excluded;
2. Whether the District Court erroneously refused
certain defense instructions crucial to his theory of the
case;
3. Whether the District Court committed error in the
verdict form it submitted to the jury;
4. Whether all testimony pertaining to Erodniak's
confession should have been suppressed under the best

evidence rule, and beca.use of the destruction of field notes
relating to it;
5. Whether the District Court's inconsistent rulings,
and refusal to rule, on ma.ior evidentiary issues, deprived
defendant of a fair trial; and
6. Whether the District Court's rulings concerning voir
dire prejudiced Brodniak's right to the effective assistance
of counsel.
A. Rape Trauma Syndrome
We will first address the admissibility of expert
testimony concerning rape trauma syndrome (R.TS) . Brodniak
attacks the admission of RTS testimony on numerous grounds
only one of which we find persuasive. Specifically, Brodniak
contends that certain portions of Walter's testimony was an
improper comment on the credibility of the victim.
Before addressing Erodniak's contention on its merits,
we believe an overview of RTS testimony is necessary. In
State v. Liddell (Mont. 1984), 685 P.2d 918, 923, 41 St.Rep.
1293, 1298-99, this Court held that RTS was a proper subject
for expert testimony in a sexual intercourse without consent
case. Where all that is disputed is the consent element such
evidence is relevant to the question of whether there was
consent to engage in a sexual act which all parties agreed
occurred.
It is true several courts have refused to allow expert

testimony on RTS. See State v. Stafford (N,C. 19851, 334
S.E.2d 799; Allewalt v. State (Md. 1985), 487 A.2d 664;
People v. Bledsoe (Cal. 1984), 681 P.2d 291; State v. Taylor
(Mo. 1984), 663 S.W.2d 235; State v. McGee (Minn. 1982), 324
N.FJ.2d 232; State v. Saldana (Minn. 1982), 324 N.W.2d 227.
The reasons for disallowance vary. One common thread running
throughout all such cases, however, is the purpose for which
RTS testimony was offered. In all of the above cases, the
experts testified that the victim suffered from RTS and
therefore concluded expressly or implicitly, in their
opinion, that the victim had been raped. Such testimony
obviously goes far beyond that approved in Liddell. Such RTS
testimony is generally considered an improper comment on the
credibility of the victim.
In Bledsoe, supra, the California Supreme Court held
that expert testimony that a complaining witness suffered
from RTS was not admissible to prove that the witness was
raped. In People v. Roscoe (1985), 215 Cal.Rep. 45, 49,
however, the same court held that although expert testimony
regarding RTS is not admissible to prove that a rape occurred
or to establish the defendant's guilt, it is admissible for
other purposes. See also State v. Ogle (Mo. 1984), 688
S.W.2d 138, similarly distinguishing Taylor, supra. Our
decision in Liddell is consistent with Roscoe and Ogle.
In the following cases the courts held either expressly
or implicitly that a qualified expert may exp1a.in RTS to the
jury and express an opinion that the victim suffers from the
syndrome, but may not testify otherwise as to the credibility
or believability of the complaining witness. State v. Lash
(Kan. 1985), 699 P.2d 49; State v. Bressman (Kan. 1984), 689
P.2d 901; People v. R.ei.d (1984), 475 N.Y.S.2d 741; State v.
Middleton (Or. 19831, 657 P.2d 1215; People v. Izzo (F?ich.
1979), 282 N.W.2d 10.
In Liddell, supra, this Court followed the reasoning of
the Kansas Supreme Court in State v. Marks (Kan. 1982), 647
P.2d 1292, wherein that court held that when consent is the
defense in a prosecution for rape, qualified expert
psychiatric testimony regarding the existence of RTS is
relevant and admissible. In a later Kansas case, Bressman,
supra, the RTS expert testified that in her opinion the
complainant had been raped. 689 P.2d at 907. The Kansas
court held that the trial court erred in admitting this
testimony reasoning that:
'An expert's opinion in a proper case is admissible
up to the point where an expression of opinion
would require him to pass upon the credibility of
witnesses or the weight of disputed evidence.'
689 P.2d a t 907.
. In Lash, supra, the expert was asked to
give h.is opinion as to whether the victim in a child
molestation case was telling the truth. 699 P.2d at 51.
Citing its Bressman decision, the Kansas court held that such
an expression of opinion was improper, since such an opinion
would require the expert to pass upon the credibility of
witnesses or the weight of disputed evidence.
In Reid, supra, the New York Court sustained a pretrial
motion to allow expert testimony describing RTS in rebuttal
to an anticipated defense that the victim recanted the
charges i.n a letter to the defendant. 475 N.Y.S.2d at 741.
Regarding the issue faced by the Kansas Supreme Court in Lash
and Bressman, supra, and this Court in the instant case, the
court held:
The admission of this [RTS] expert testimony is no
more inflammatory, nor more intrusive into the
province of the jury than other expert testimony,
assuming adequate and proper instructions are
provided to the jury, and, of course, the expert
- -not be permitted t o e s t T f-m o whether she
will - y -
believes the w i t n e s s (citations omitted), but
rather, will be permitted to explain rape trauma
syndrome to the jury and express her opinion that
the victim suffers from that syndrome. The jury
will then consider the credibility of the victim's
testimony along with whatever evidence is submitted
on the question of credibility. (Emphasis added.)

In at least two other jurisdictions, courts have stated
the same rule--that is that an expert witness may not give an
opinion on whether he believes the victim's story or whether
he believes the witness is telling the truth. Middleton, 657
P.2d at 1221; Izzo, 282 N.W.2d at 11.
At the trial of this case, Walters testified in detail
on the subject of RTS. Although Walters' testimony regarding
RTS, itself, was not objected to, certain other portions of
his testimony were objected to as improper comment on the
credibility of the victim.
The pertinent portions of Walters' testimony are as
follows:
&. Dr. Walters, as part of your professional life,
do you keep current on the literature and current
on the research dealing with the area of sexual
assault and rape? A. 3 attempt to do so, yes.

Q. What does that mean? What do you do to try to
keep current? A. I try to keep track of what are
the current books and research articles that are
coming out and avail myself of various computerized
services or summaries of general findings and do
participate in some research in those areas.
Q. Dr. Walters, in the literature is there an area
of literature that deals with sexual assault and
rape? A. Yes.
Q. Does that particular literature contain any
information regarding the frequency of false
reports in sexua.1 assault or rape cases? A. Yes.
Q. What is that frequency? A. In general, that
the number of actual false accusations is
approximately the same as for other kinds of
crimes, roughly two percent of the number of
accusations are found to be unfounded. Where it is
not possible to proceed with an investigation
because of various problems, that runs, depending
on the study you read, somewhere around 17 to 25
percent.
Q. Dr. Walters, is that particular report in the
literature consistent with your personal clinical
experience? A. Yes.
Q. In the course of your professional career, have
you been in the practice of making diagnoses of
individuals or clients that have been referred to
you? A. Yes, that is a routine part of my
practice.
Q. Is part of the routine part of the practice for
you to check for what we might call a malingerer?
A. Yes.
Q. Could you explain wha.t malingering is? A. The
term refers to people who clearly distort
information with the intention of creating a
particular purpose that would be in some way to
their advantage.
Q. Why is it important to check in your work to
see if that process is going on? A. Because it
can be a significant flaw in the conclusion you
reach.
(2. The diagnosis you are seeking? A. Yes.
Q. Do you find ma.lingering in persons who are
complaining of sexual assaults? A. Occasionally.
Q. Again, in what frequency? A. R.oughly two to
three percent, depending a lot on where the work is
going on, the kinds of motives people have. It is
probably less in clinical practice where people are
coming in just to help themselves than in a
practice where they might have some fairly obvious
motives about getting to move to another part of
the prison or to get out or something of this kind.

Q. You indicated that you gave Debbie some tests,
what kind 04 tests d.id you administer to her? A.
An individual intelligence test, the Wexler Adult
Intelligence Scale Revised. I gave her a
perception test, the Minnesota Multiphasic
Personality Inventory.
Q. Have you scored the individual intelligence
test? A. Yes.
Q. What are your findings as far as Debbie's I.Q.?
A. She had a verbal 1.9. of 78, a performance I.Q.
of 72, full scale I.Q. of 78, which places her in
the lowest 10 percent of the general popul-ation.
Q. Could you tell us a little bit about what kind
of tasks and skills an individual with an I.Q. of
78 is likely to possess? A. Yes, an individual in
that score range doesn't quite qualify for special
ed in the public school system, yet they are very
unlikely to be able to compete in regular grade
level placement. Such an individual might be able
to get through about an eighth grade education.
They are very unlikely to succeed in regular school
placement. They are likely to end up in an
unskilled kind of work, often requiring fairly
close supervision of kind of routine tasks. They
are unlikely to be successful in kinds of work or
kinds of activities that involve much academic
learning.
Q. In connection with that kind of assessment,
what would be her ability to be able to recount
experiences and remember kinds of things that
happened to her?
MR. ROGGS: Objection.
THE COURT: Overruled.
A. Limited.
Q. (By Ms. Townsend) Can you explain what you
mean by that? A. An individual in this I.Q. range
is likely to have difficulty following complex,
rapid changes in sequences of events. They might
be able to remember fairly vivid details out of
events that a.ttracted their attention. Their
memory would not be very dependable.
Q. Doctor, how does the experience of something as
traumatic as, say, a sexual assault, affect the
individual's ability to recount the details of the
event at some later date? A. To the extent that
they are intensely frightened, and frightened that
there miqht be other kinds of circumstances that
-
compromise judgment, the reaction is it is
typically very difficult for people to give highly
detailed and accurate accounts :of what happens to
them.
Q. If you combine that sort of a stress and the
stress of a situation with someone with the I.Q.
of, say, 78, how is that going to affect an
individual's ability to recount later on, events of
what went on and be precise about what happened
when, et cetera? A. I would expect the accuracy
of details, the sequence of details, to be
relatively poor.
Q. Why is that? A. Recause they simply can't
absorb or process and retain that much information,
which is to say that circumstances beyond a certain
point of stress greatly interferes with memory.
Q. Eoes that mean when an individual recounts
something one way that they are deliberately not
recounting it correctly? A. Not necessarily.
Q. What does it mean? A. Their memory is not
good.
Q. What about the period of time--the elapsed time
period in a sexual assa.ult? A. It's usually poor.
Q. Why is that? A. Same reason I have just
recounted.

Q. So the stress significantly affects your
ability to accurately say about how much time
something took place? A. Yes.
&. Doctor, in your diagnosis of post traumatic
stress syndrome for Debbie Preston, did you also
consider the possibil-ity that she might be
malingering? A. Yes.
Q. How did you check for that? A. In such
examinations, first of all, I go over the
information that the person provides on subsequent
interviews. I am looking for information from
other sources, such as our witness investigative
report and so on to see if this information was
consistent with what the individual provides. I
will provide them opportunities to exaggerate in a
way that would be favorable to what might be their
case or their interest, and observe the extent to
which they would do it. There are a variety of
 techniques of this sort to give you some idea about
the veracity.
Q. Did you do that in connection with Debbie
Preston? A. Yes.
Q. What were your findings? A. I did not find
:
any instances where she behaved in a way tha.t would
suggest to me that she is malingering.
It is well settled in Montana that the determination of
the credibility of witnesses and the weight to be given their
testimony is solely within the province of the jury. State
v. Maxwell (1982), 197 Mont. 498, 647 P.2d 348; State v.
Beachman (Mont. 1980), 616 P.2d 337, 37 St.Rep. 1558; State
v. Harvey (L979), 184 Mont. 423, 603 P.2d 661; State v. Azure
(1979), 181 Mont. 47, 591..P.2d 1125; State v. Lewis (1976),
169 Mont. 290, 546 P.2d 518. Clearly, Walters' testimony
with regard to malingering and the statistical percentage of
false accusations was improper comment on the credibility of
Preston in light of the above cited authority and should not.
have been admitted in this case.
This Court, however, will not reverse a judgment of
conviction for harmless error, and the question as to whether
a particular error is harmful or harmless depends on the
facts of the case under review. State v. Straight (1959),
136 Mont. 255, 265, 347 P.2d 482, 488. In the instant case
we hold that the admission of Wal.tersf testimony, above
quoted, was harmless error. A review of the record of this
case reveals that the physical evidence against Brodniak and
his own admissions that he resorted to violence were so
overwhelming that admission of the RTS testimony did not
affect his substantial rights.
I?. Jury Instructions
 Rrodniak next contends that the District Court
improperly excluded his proposed instruction nos. 11, 12, 14
and 10c.
Rrodniak's proposed instruction no. 14 addressed itself
to the necessity that the force or lack of consent precede
the acts of sexual intercourse for rape to occur. The
instruction provided:
The evidence in this case has raised the issue of
the relationship in time between admitted acts of
sexual intercourse, consent or lack of consent, and
admitted forceful acts of defendant against the
complaining witness.
You are instructed that the force, or threat of
force, necessary to show lack of consent on the
part of Debbie Preston to acts of sexual
intercourse with the defendant James Brodniak must
precede the acts of sexual intercourse in time.
Sf, from your consideration of all the evidence
presented in this case, you find yourselves with a
reasonable doubt whether any acts of force, or
threat of force, on the part of James Brodniak
preceded Debbie Preston's consent to sexual acts
with James Brodniak, then you must return a verdict
of not guilty to the charge of sexual intercourse
without consent in this case.
If you find yourself with this reasonable doubt,
you are still required and authorized to consider
whether or not the defendant committed the lesser
included offense of assault upon Debbie Preston, as
defined in these instructions.
The District Court refused Brodniak's proposed
instruction no. 14 because the elements of the offense were
adequately covered in other instructions. It is clear that
instruction nos. 11 through 14 and 23, given to the jury,
thoroughly instructed them on the elements of sexual
intercourse without consent, and the effect force the
element of consent. The jury was further instructed on the
lesser offense of assault in instruction nos. 20 through 22.
The District Court properly refuse instruction when
the elements of the offense are adequately set forth in other
instructions. State v. Campbell (1972), 160 Mont. 111, 116,
500 P.2d 801, 804.
The State also contends tha.t instruction no. 14 was

properly refused because it is a misstatement of the law.
The instruction requires a find5r.g of use of force that
precedes the acts. Because the victim suffered more than one
act that could constitute sexual intercourse without consent,
the instruction could erroneously mislead the jury to
conclude that force could not begin after one act and before
a. second.
Erodniak also con.tendsthat his proposed instruction no.
12 was improperly denied. The instruction provided:
You are instructed that, once a person consents to
acts of sexual intercourse with another person,
that consent may not, in contemplation of law, be
withdrawn during the acts.
Therefore, if you find from the evidence that
Debbie Preston consented to have sex with James
Brodniak, and, in the course of doing so, at some
time withdrew her consent or may have withdrawn her
consent, you may not find the defendant guilty of
the offense of sexual intercourse without consent.
Brodniak's "withdrawal of consent" instruction is based on
State v. Way (N.C. 1979), 254 S.E.2d 760. Way is much more
1j.mi.ted in scope than the offered instruction. In Way, the
court held that when there is only one act of intercourse,
the victim cannot withdraw consent during the act and then
charge the assailant with rape. Way, 254 S.E.2d at 761.
Even if Way were the law in this state, the proposed.
instruction would still be unusable because it instructs the
jury that "once a person consents to acts of sexual
intercourse . . . consent may not . . . be withdrawn during
the acts. " Thus, the jury could be Led to believe that once
the woman consents, she can nexrer withdraw her consent. This
ignores the fact that under Montana's definition of sexual
intercourse without consent, Preston was raped not once, but
several times. Section 45-5-503, MCA. Brodniak's proposed
instruction no. 12 was properly denied as a misstatement of
Montana law and because it does not comport with the law upon
which the instruction was based.
Brodniak next contends his proposed instruction no. 10c
was improperly denied. The instruction provides:
You are instructed that the consent of Debbie
Preston to the acts of James M. Brodniak is a
defense to the charge of sexual intercourse without
consent.
Such consent is not a defense, however, if it was
induced for force or by a threat of imminent death,
bodily injury, or kidnapping, to be inflicted upon
anyone.
You are further instructed that the mere fact that
Debbie Preston may have felt some uneasiness or
fear in the presence of Defendant at some point,
does not mean she was induced to give her consent
by force or duress. Only if she was reasonable in
thinking that the Defendant might use injurious
force against her if she did not consent, was her
consent induced by force. Whether she was
reasonable in thinking this must be determined in
light of all the circumstances surrounding the
Defendant's acts, as brought out in the evidence
put before you here.
You are further instructed tha-t a person may
manifest their consent to a particular course of
conduct by inaction as well as by positive
affirmation. Inaction or sufferance may constitute
consent when, in the natural course of human
affairs, reasonable people would normal-ly regard
inaction in particular circumstances to mean that a
person consented to the action taking place.
Brodnia.klsinstruction no. 10c attempted to set forth the law
that consent is a defense to a charge of sexual intercourse
without consent as provided in S 45-2-211, MCA. Brodniak,
however, never offered an instruction setting forth the
statute. Rather, his instruction is a I-ong, erroneous, and
confusing interpretation of it. Further, the element of lack
of consent was adequately covered in instruction no. 23 which
was given. Moreover, the third paragraph of the i-nstruction
attempts to bring Preston's state of mind into issue which
has no pla.ce in the elements of the offense.
Rrodniak last contends that his proposed instruction no.
11 was improperly denied. The instruction provides:
You are instructed that resistance, or lack of
resistance, on the part of Debbie Preston to the
acts of James M. Brodniak may be considered by you
in determining whether or not an act of sexual
intercourse, if one took place, occurred "without
consent. lP
You are further instructed that it is the law of
this state that a woman placed in circumstances
where she feels sexual intercourse is about to
occur with her is not required to resist by all
violent means within her power. The law requires
only that she does not consent, and that she do all
that her age, strength and the attendant
circumstances make it reasonable for her to do in
order to manifest her opposition. She is not
required to resist beyond exhaustion of her
strength or beyond the point where the force used
against her would make further resistance useless
or impossible.
You are also instructed that continuous resistance
is not required to show that sexual intercourse was
without consent.
Although Brodniak's proposed instruction no. 11 is a
proper statement of the law, it was redundant when viewed
with instruction no. 14 given by the court and was therefore
properly refused. State v. Sanderson (priont. 1985), 692 P.2d

The instructions given by the District Court adequately
covered every issue and theory having support in evidence,
ut
sexual intercourse without consent and assault. State v.
Azure (19771, 175 Mont. 189, 194, 573 P.2d 179, 182. The
instructions given accurately stated the applicable law.
C. Verdict Form
Brodniak here contends that the verdict form offered by
the State and utilized by the District Court, invited the
jury to consider punishment in its determination of guilt or
innocence in contravention of Montana law due to the
inclusion of the grade of offenses, felony and misdemeanor,
in the verdict form. The verdict form given to the jury
stated:
V E R D I C T
To the charge of Sexual Intercourse Without
Consent, a Felony, we the jury, all of our number,
find the defendant JAMES M. BRODNIAK
Guilty Not Guilty
Having found the Defendant not guilty of the
offense charged of Sexual Intercourse Without
Consent, a Felony, to the lesser included offense
of Assault, a Misdemeanor, we the jury, all of our
number, find the defendant JAMES M. RFODNIAK
Guilty Not Guilty
In State v. Herrera (1982), 197 Mont. 462, 467, 643 P.2d
588, 591, this Court stated:

[3] Under section 46-18-103, MCA, all sentences
shall be imposed exclusively by the judge of the
court. Because of that statute, we held in State
v. Zuidema (1971), 157 Mont. at 367, 373, 374, 485
P.2d 952, 955, that punishment is not the concern
of the jury whose sole function is to determine
guilt or innocence. Instructing the jury as to
various possibilities of sentence, we said (157
Mont. a< 374, 485 P.2d at 956), impermissibly
suggests to a jury that it should give weight to
the possible punishment in reaching a verdict. In
State v. French (1975), 166 Mont. 196, 205, 531
P. 2d 373, 378, we held a court was not required to
instruct the jury, where mental disease or defect
excluding responsibility was an issue, that a
person acquitted by reason of mental disease must
be committed to the state hospital. In State v.
Coleman (1978), 177 Mont. 1, 33, 34, 579 P.2d 732,
751, we upheld an instruction that sentencing was
vested in the court and the jury was not to
consider the possible punishment defendant could
receive upon a verdict of guilty. The District
Court in this case avoided prejudicial error by
refusing the offered instruction in this case.
The issue before the Court then is whether the inclusion of
the terms misdemeanor and felony suggested to the jury that
it should give weight to the possible punishment in reaching
their verdict. Clearly, inclusion of the terms in the
verdict form permitted the jury to indirectly consider the
punishment of Brodniak. But again, based. on the fa.cts of
this case, we find that any prejudice caused by inclusion of
the terms in the verdict, even though they convicted. Brodniak
of the felony, sexual intercourse without consent, was
harmless.
Brodniak also contends that the District Court erred by
not utilizing his special interrogatories to the verdict
form. The special interrogatories stated:
VERDICT: SPECIAL INTERROGATORIES
If, from your consideration of the evidence, you
find the Defendant guilty of sexual intercourse
without consent, then indicate the basis of your
verdict as follows:
[ ] 1. The Defendant, before the inception of
sexual acts or intercourse, induced Debbie
Preston's consent to the same, by force or threat
of force.
[ ] 2. Although Debbie Preston was a voluntary
social companion of Defendant and consented to have
sex with him, at some point during acts of
intercourse she withdrew her consent, and he used
force or threat of force to perpetrate further
acts.
Brodniak offered the interrogatories as a means of
determining for appeal whether the jury verdict was based on
a theory of withdrawn consent, as opposed to force or lack of
consent from the inception. Brodniak relies on two cases for
his contentj-on that the special interrogatories should have
been given to the jury. People v. Horton (Colo. 1384), 683
P.2d 358; State v. Cunningham (Wash. 1979), 598 P.2d 756.
These cases, however, merely hold that all theories charged
should be submitted to the jury for a special verdict. In
the instant case all the theories charged were reflected in
the verdict form given the jury.
 Brodniak's argument that the District Court erred by not
giving the special interrogatories is not persuasive. The
fact of the matter is that the jury determined from the
evidence that Brodniak committed the offense of sexual
intercourse without consent against Preston. Whether the
jury believed that the element of without consent existed at
the inception of the sexual acts or whether at some point
Preston withdrew her consent and then Brodniak engaged in
further acts of sexual intercourse without. consent is
unimportant. The important point is that the jury found that
at some point Brodniak committed sexual intercourse without
consent. A plain reading of $ 45-5-503, MCA, indicates that
5

Preston could have been ra.ped as many as five or six times.
A11 that was necessary was that the jury find she was raped
once. The District Court properly denied Brodniak's special
interrogatories.
D. Best Evidence Rule
Shortly after Brodniak's arrest, sheriff's deputy Steven
Gunderson conducted a tape-recorded interview with Brodniak's
consent. During the interview he took notes of Brodniak's
statements. The tape itself was recycled before trial
because Gunderson mistakenly thought that Brodniak had given
enother statement to another officer. The recording,
however, had been transcribed prior to its being recycled.
Two days after the taped interview, Gunderson prepared a
formal report using his notes and his memory. Gunderson
testified he never reviewed the tape wit.h the transcript.
He, however, did review his report and testified that it

accurately stated what Brodniak said during the interview.
During trial Gunderson testified. using his report to refresh
his memory. During his examination, Gunderson also twice
read from the transcript.
Brodniak contends that the statements from the
transcript should not have been used at trial because of the
best evidence rule. The best evidence rule is Rule 1002,
M.R.Evid. and provides:
To prove the content of a writing, recording, or
photograph, the original writing, recording, or
photograph is required, except as otherwise
provided by statute, these rules, or other rules
applicable in the courts of this state.
Brodniak relies on State v. Warwick (1972), 158 Mont. 531,
494 P.2d 627, to support his contention that the District
Court committed reversible error by allowing Gunderson to
read from the transcript of the recording. In Warwick, this
Court stated:
There are some cases where only the transcription
of the recording has been offered and though
objected to on the basis that the transcription is
not the best evidence, courts have admitted the
transcription where a proper foundation was laid
for the admission. (Citations omitted.)
However, in State v. Baca, 82 N.M. 144, 477 P.2d
320, a police officer's notes that had been
transcribed from a tape recorded interview between
the defendant and the informer were held
inadmissible, due to fail-ure to lay a proper
foundation for both the recording itself and the
subsequent transcription. That is precisely the
factual situation here, except under our factual
situation the tape is missing or destroyed. This
loss or destruction of the tape or record has, in
the few cases we have found from other
-jurisdictions, raised the best evidence rule
objection, and where admission has been allowed it
has only been after the prosecution has proven the
authenticity of the transcription--that is, after
laying the proper foundation as to the accuracy of
the secondary evidence following the guidelines set
forth in 58 A.L.R.2d 1024, heretofore quoted.
Warwick, 158 Kont. at 543-44, 494 P.2d at 633. Based on
Warwick, the State should have strictly adhered to the
following foundation to authenticate the recording and the
transcript thereof:
 (1) a showing tha.t the recoding device was
capable of taking testimony, (2) a showing that the
operator of the device was competent, (3)
establishment of authenticity and correctness of
the recording, (4) a showing that changes,
additions, or deletions have not been made, (5) a
showing of the manner of preservation of the
recording, (6) identification of the speakers, (7)
a showing that the testimony elicited was
voluntarily made without any kind of inducement."
Warwick, 158 Mont. at 542-43, 494 P.2d at 633.
In the instant case, because the recording was destroyed
and because Gunderson "did not review the transcript" or
compare it with the recording, the only testimony offered to
prove the authenticity and correctness of the recording was
Gunderson's testimony that he knew it was accurate based on
his recol.lections and his formal report. A review of the
transcript in this case, indicates that there was not "strict
adherence" to the Warwick foundation and the District Court
therefore erred by allowing Brodniak's statement to Gunderson
to be read from the transcript.
The question then becomes whether the error prejudiced
Brodniak. It is the duty of this Court to ascertain whether
or not errors made at trial are prejudicial, for only upon
such prejudicial errors may a case be returned to the
District Court for retrial.. Warwick, 158 Mont. at 539, 494
P.2d at 631; State v. Totterdell (1959), 135 Mont. 56, 60,
336 P.2d 696, 698. Gunderson read two statements from the
transcript of the recording. These statements, however, were
consistent with Brodniak's own testimony. Brodniak was
therefore not prejudiced by the admission of the statements.
Brodniak also contends that all testimony pertaining to
his statements to Gunderson should not have been admitted
because the State negligently suppressed the tape and
Gunderson's notes taken during the interview. The law in
Montana regarding suppression of evidence is that negligent
suppression will overturn a conviction if prejudice can be
shown by the suppression. State v. Craig (1976), 169 Mont.
150, 153, 545 P.2d 649, 651. Again, Brodniak makes no
showing that he was prejudiced by the negligent suppression
of the recording or Gunderson's field notes.
E. Evidentiary Rulings - - District Court
of the
Brodniak contends that the District Court's postponement
of rulings of various evidentiary motions prejudiced his
case. Specifically, Brodniak first contends that the
District Court made arbitrary and inconsistent rulings with
regard to the admission of the transcript of the tape
recording that led to confusion and deprived Brodniak of a
fair trial. Brodniak further contends that the District
Court deprived him of a fair trial by postponing ruling on
the admission of Dr. Walter's rape trauma testimony.
The record, however, shows the evidentiary matters on
which the District Court reserved its ruling, depended on
their relevancy at the time of introduction and the adequacy
of their foundation. The trial court judge has a wide
latitude of discretion in conducting courtroom procedures,
and in determining adequacy of foundation for admission of
evidence. State v. Austad (1982), 197 E r n . 70, 94, 641 P.2d
Pot
1373, 1386; State v. LaMere (Mont. 1980), 621 P.2d 462, 466,
37 St.Rep. 1936, 1941. There is no indication that the
District Court did anything other than exercise its
discretion in order to rule correctly on all. evidentiary
matters. The District Court acted correctly and Brodniak
suffered no prejudice.
F. District Courts -- Rulings
Voir Dire
In the instant case, the District Court restricted the
jury voir dire by prohibiting the attorneys from making
references to their own personal experiences as a means of
eliciting biases from prospective jurors. Brodniak contends
that this ruling four days before trial, prejudiced his trial
prepara.tion. The State contends that by restricting the voir
dire to exclude counsel" comments on their personal
experience, the District Court acted within its discretion.
The purpose of voir dire in a criminal proceeding is to
determine the existence of bias and prejudice on the part of
prospective jurors and to enable counsel to intelligently
exercise their pre-emptory challenges. State v. Stuit
(1-978),1.76 Mont. 84, 87, 576 P.2d 264, 266. Any questioning
conducted to establish rapport or to educate the jury is
extraneous to the legitimate objects of voir dire. State ex
rel. Stephens v. District Court (19761, 170 Mont. 221 271 5 5 0
P.2d 385, 388. Counsel for Brodniak admitted that the
purpose of counsel making references to personal experiences
was to establish rapport with potential jurors. This bei.ng
true, the District Court acted properly in limiting matters
"extraneous to the legitimate objects of voir dire" based on
Stephens, supra.
We affirm.

~
We Concur: J

Chief Justice
Justices
 Mr. Justice Frank B. Morrison, Jr. dissents as foLlows:
I agree with the majority conclusion that Walters'
testimony constituted a comment on the evidence and was
impermissible. I disagree that such testimony constitutes
harmless error.
The victim's testimony can be summarized as follows:
(1) The victim wanted a ride home but did not want to have
sex with defendant. (2) The victim was not "picked up" by
the defendant in the bar. (3) The victim was, for a11
practical purposes, a prisoner in the defendant's car at the
time it was parked in the Pattee Canyon area.
The chief witness for the State was challenged, not only
by the defendant, but by Diane Geddes, the victim's female
companion at the bar. Directly contrary to the victim's
testimony, Geddes testified that the victim told her she was
going home with the defendant. It was her impression that
the two were leaving to have sex.
Defendant testified that near the end of the sexual
encounter he became violent toward the complainant and that
he pulled her hair and choked her. He testified that the sex
was very aggressive and that, at one point he mistakenly
penetrated the victim's anus. The defendant's testimony is
as much corroborated by the physical facts as is that of the
complaining witness.
I am unable to say that the evidence of guilt is so
overwhelming that the credibility of the complaining witness
did not come into play. Dr. Walters' testimony, bolstering
that of the victim, could well have influenced the jury.
Under these circumstances, we should reverse and remand for a
new trial.
I also feel that the trial bench and bar will be
somewhat confused by the majority's position. Apparently the
rational of Liddell is approved. The majority seems to
confine admissibility of rape trauma syndrome testimony to
those instances where medical personnel, having observed
demeanor shortly following the alleged incident, testifies
that such demeanor is compatible with a significant traumatic
incident such as rape. The expert will not be allowed to
comment on the credibility of the complaining witness.
Whether this rule will be capable of practical application
remains to be seen.
I would reverse and remand