State v. Clark

No. 83-44

I N THE SUPREME COURT OF THE STATE OF MONTANA

1984

STATE OF MONTANA,

P l a i n t i f f and R e s p o n d e n t ,

-vs-

WILLIAM LEE "RANDY l1 CLARK,

D e f e n d a n t and A p p e l l a n t .

APPEAL FROM: a i s t r i c t Court of t h e S e v e n t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f P h i l l i p s ,
The H o n o r a b l e Leonard Langen, J u d g e p r e s i d i n g .

COUNSEL OF RECORD:

For Appellant:

F r a n c i s J . McCarvel, Glasgow, Montana
David L. I r v i n g a r g u e d , Glasgow, Montana

For Respondent :

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , E e l e n a , Montana
J i m FlcLean a r g u e d , A s s t . Atty. G e n e r a l , K e l e n a
W i l l i s M. McKeon, County A t t o r n e y , M a l t a , Montana

- -

Submitted: November 2 9 , 1983

Decided: Xay 8 , 1 9 8 4

Filed:

Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Defendant appeals from a jury verdict and judgment
finding him guilty of eight counts of sexual intercourse
without consent. We affirm the jury verdict and the judgment
of the District Court.
The issues on appeal are:
(1) Did the trial court err in allowing the defendant
to be charged and tried on the amended information?

(2) Did the trial court err in excluding opinion
testimony of defendant's professional investigator?
(3) Was the State's cross-examination of defendant's
character witness, Larry Simpson, improper?

(4) Did the State improperly impeach defendant's
testimony by using irrelevant, prejudicial evidence during
cross-examination?
(5) Was the testimony of State rebuttal witness, Dr.
William Stratford, properly allowed?
Defendant was reunited with his wife and three
step-children in Saco, Montana on April 4, 1981, after
serving thirteen months at the Lompoc Federal Penitentiary in
California. Defendant's 9 year old son by a previous
marriage also came to live with the family. Defendant's
wife, Mary, worked full-time and defendant did odd jobs and
ranch work.
During a family argument on the evening of July 6, 1981,
defendant's 12 year old step-daughter, T., told Mary that the
defendant had raped her. The argument intensified and the
defendant battered both T. and her mother. Mary left with
her three children and drove to New Orleans. After receiving
psychological counseling in New Orlean's, T. and Mary
returned to Montana to institute criminal charges against the
defendant.
 Defendant was arraigned on December 17, 1981 on an

information charging him with eight counts of sexual

i n t e r c o u r s e without consent. The i n f o r m a t i o n s p e c i f i e d t h e

d a y s on which t h e a l l e g e d r a p e s o c c u r r e d . Defendant p l e d n o t

guilty. On March 9 , 1982, d e f e n d a n t f i l e d n o t i c e o f an a l i b i

defense. O April 9 ,
n 1982, t h e S t a t e n o t i c e d i t s i n t e n t t o

amend the information. Defendant objected to the amended

information, which alleged the time of the rapes less

precisely than the original information. The trial jud.ge

p e r m i t t e d t h e amended i n f o r m a t i o n t o be f i l e d and d e f e n d a n t

a g a i n p l e d n o t g u i l t y on A p r i l 23, 1982. T r i a l by j u r y began

J u l y 27, 1982.

T. t e s t i f i e d t h a t s h e was a s e v e n t h g r a d e r i n 1981. The

d e f e n d a n t f i r s t approached h e r t h r e e d a y s a f t e r he came home

from p r i s o n . He came i n t o h e r bedroom, p u t h i s arm around

her, and tried to kiss her while her mother was in the

shower. T. pulled t h e c o v e r s up around h e r and d e f e n d a n t

l e f t h e r bedroom. Five t o e i g h t days l a t e r , defendant c a l l e d

T. i n t o h i s bedroom around 4:00 or 4:30 i n t h e afternoon,

w h i l e Mary was s t i l l a t work. He b o l t e d t h e door w i t h a l o c k

T. could not reach and had intercourse with her. T.

testified that this happened again and continued to occur

u n t i l July 6, 1981, when Mary and t h e c h i l d r e n l e f t f o r New

Orleans. T. explained t h a t s h e d i d n o t t e l l anyone b e c a u s e

s h e was " s c a r e d o f him b e a t i n g u s and ... scared t o h u r t my

mother." T. t e s t i f i e d t h e ra.pes u s u a l l y t o o k p l a c e i n h e r

mother's bedroom, sometimes i n h e r own bedroom and once i n

the attic. She t e s t i f i e d t h a t it happened t w i c e o r more a

week, sometimes f o u r t i m e s a week, and more t h a n once a day

on two occasions. According to T., defendant repeatedly

warned h e r n o t t o t e l l anyone.
 T. testified that the defendant had intercourse with her
"approximately 40" times. She explained that she had
originally picked specific dates "to get it over with" and
that she had told the County Attorney it happened 8 times
because she "was ashamed of how many times it really
happened." She said she later told the State prosecutor 40
times "because it was bugging me because I didn't have the
truth out. "
T.'s testimony was corroborated in part by her brother,
who was 9 years old in 1981. Her brother testified that
defendant would tell the three younger children to go to the
park, but tell T. to stay home. When they came back and the
doors were locked, the children usually returned to the park.
Once T's brother got a boost from his step-brother to look in
the windows to see if anyone was home. In his mother's
bedroom, he "saw Randy and T . . . laying in on the bed." He
admitted on cross-examination that he could not see through
the gauze curtain well enough to tell whether they were
dressed.
Both T. and her mother testified that on the evening of
July 6, 1981, when Mary confronted defendant with T's
statement that he had raped her, defendant turned to T. and
asked, "Why did you tell her?" Both testified that Mary
asked if T. had been a virgin, and the defendant replied,
"Wel-1, it1s too late now." Both Mary and T. testified that
defendant physically assaulted them before they left the
family home that night. Mary's sister testified that Mary
arrived in New Orleans with scratches, finger marks on her
neck, a hand imprint on her face, bruises down her side and a
huge lump on one leg. T. had marks around her face and her
glasses had been twisted and broken.
 Defendant t e s t i f i e d t h a t " t h e r e was no v i o l e n c e i n o u r

house that night. There was never any violence in that

house." He d e n i e d b a t t e r i n g h i s w i f e and s t e p - d a u g h t e r . He

t e s t i f i e d t h a t t h e y had a r g u e d , b u t no a l l e g a t i o n o f r a p e was

e v e r made. According t o d e f e n d a n t , t h e problem was t h a t T .

thought she was pregnant. He insisted that Mary later

contrived the charges and coerced T. and her brother to

t e s t i f y a g a i n s t him. He d e n i e d e v e r h a v i n g r a p e d T .

The j u r y r e t u r n e d a g u i l t y v e r d i c t on e a c h o f t h e e i g h t

counts of sexual i n t e r c o u r s e without consent. Judgment was

entered designating defendant a dangerous offender and

s e n t e n c i n g him t o 30 y e a r s imprisonment a t t h e Montana S t a t e

P r i s o n on e a c h c o u n t , with t h e e i g h t 30-year terms t o run

concurrently. Defendant a p p e a l s .

I.

Did t h e t r i a l c o u r t e r r i n a l l o w i n g t h e d e f e n d a n t t o be

c h a r g e d and t r i e d on t h e amended i n f o r m a t i o n ?

Defendant asserts that (1) t h e amended i n f o r m a t i o n is

n o t s u f f i c i e n t a s a c h a r g e , and ( 2 ) a l l o w i n g t h e i n f o r m a t i o n

t o be amended a f t e r d e f e n d a n t p l e d n o t g u i l t y and n o t i c e d an

a l i b i defense prejudiced h i s s u b s t a n t i a l r i g h t s .

Defendant i n i t i a l l y o b j e c t e d t o t h e amended i n f o r m a t i o n

b e c a u s e it a l l e g e d t h e t i m e o f t h e r a p e s l e s s p r e c i s e l y t h a n

the original information. The original and amended

informations s e t f o r t h t h e times a s follows:

COUNT O R I G I N A L INFORMATION AMENDED INFORMATION
( f i l e d October 23, 1981) (filed April 23, 1982)

I On o r a b o u t May 1 9 , 1981 Week of April 12, 1981

I1 O o r a b o u t May 23, 1981
n Week of April 19, 1981

I11 On o r a b o u t May 26, 1981 Week o f A p r i l 1 9 , 1981
( d i f f e r e n t occasion than
t h a t a l l e g e d i n Count 11)

IV O o r a b o u t May 27, 1981
n Week of April 26, 1981
 On or about May 29, 1981 Week of May 3, 1981
On or about May 30, 1981 Sometime during weeks of
(early evening) May 10, 1981 through June
21, 1981
On or about May 30, 1981 Sometime during weeks of
(about midnight) May 10, 1981 through June
21, 1981 (different
occasion than that alleged
in Court VI)
VIII On or about July 3, 1981 Week of June 28, 1981
Defendant contends that his substantial rights were
prejudiced when the trial court allowed the amended
information to be filed after he had pled not..
guilty to the
original information and noticed an alibi defense. He claims
the amended information effectively precluded any alibi
defense because periods of time were substituted for specific
days. Defendant concedes that generally time is not a
material element of the offense of sexual intercourse without
consent. However, here the amended information covers almost
all of the three months the family was together, as opposed
to seven specific dates.
The State argues that because the victim was a 12 year
old child who was unable to pinpoint dates, the times stated
in the amended information were stated as definitely as
humanly possible. The State argues that to demand that a
child specify the hour and date of each instance of sexual
abuse in the home is to demand the impossible. The State
amended the information because the prosecutor discovered
that T. had based her original dates on an incorrect belief
that the defendant had returned home in May, instead of
April, 1981. The amendments do not change the nature of the
offenses charged, only the times of the offenses.
Section 4 6 - 1 - 4 0 (1) v , MCA requires that an
information state "the time and place of the offense as
definitely as can be done." The law does not, however,
demand impossible precision. In the homicide case of State
v. Riley (Mont. 1982), 649 P.2d 1273, 39 St.Rep. 1491, this
Court upheld the sufficiency of an information charging
various acts of child abuse over a period of two years.
"The law does not require that the time and place
be stated with impossible precision; it merely
requires that they be stated as definitely as
possible under the circumstances of the case,
unless time is a 'material ingredient in the
offense. ' See State v. Heaston, 109 Mont. at 307,
97 P.2d at 332. Here the information alleges a
continuing course of abusive conduct towards James
Gill, beginning when his family joined the River of
Life Tabernacle group and culminating with the
boy's death on January 9, 1981. When such a
continuing course of conduct is alleged, further
specificity is not required." Riley, 649 P.2d at
1277, 39 St.Rep. at 1496.
In judging whether the amended information here states
the time of the alleged offenses with sufficient
particularity, the court must determine (1) whether time is a
"material ingredient in the offense," and (2) whether a
continuing course of conduct is alleged.
Both the original and the amended information set forth
facts alleging a series of incidents of unlawful sexual
contacts perpetrated by the step-father upon the child.
Incestuous conduct is charged as a series of offenses of
sexual intercourse without consent with the same minor
victim.
Incest generally involves a continuing course of sexual
conduct between two family members within the family home.
Incestuous conduct usually consists of a series of unlawful
sexual contacts between an adult family member and a child.
In these respects, sexual offenses committed against a minor
by a parent or step-parent are distinguishable from rape
cases involving adult victims and a single criminal event in
unfamiliar surroundings. In addition, children are less
likely to distinguish dates and times with specificity.
These distinctions are relevant to our consideration of the
sufficiency of the amended information.
Defendant concedes that time is not a "material
ingredient" in the offense of sexual intercourse without
consent with a minor. Since time is not a material
ingredient in statutory rape, "the information need only be
specific enough to enable the defendant to prepare his
defense and to protect him from being subsequently prosecuted
for the same offense." State v. Roberts (Idaho 1980), 610
P.2d 558, 559. Defendant argues, however, that time became
material once he noticed his alibi defense.
The argument that noticing an alibi defense confers
materiality and makes time a necessary element of the State's
case was addressed in State v. Hall (1976), 171 Mont. 33, 554
P.2d 755. Defendant Hall, was charged by information with
first degree burglary and grand larceny "on or about the 19th
day of August, 1973." He pled not guilty and filed a notice
of intent to rely on an alibi defense. At trial, the State
offered evidence that the burglary and larceny could have
occurred anytime between August 17 and August 20, 1973.
Defendant's alibi witnesses testified as to the period from
August 18 through 20, but no alibi testimony was presented
regarding August 17. The jury returned a guilty verdict.
On appeal Hall argued, as defendant does here, that
notice of intent to rely on an alibi defense gives the State
notice that time may become an essential. fact of proof
required to convict the accused. This Court concluded:
"Assertion of the alibi defense does not change the
nature of the crime charged here. Defendant should
have realized the State would present evidence
proving the crime took place sometime in the period
between shutdown of the camp and discovery of the
breakin. Defendant cannot restrict the state's
case by merely asserting intent to rely on an alibi
defense for a limited period of time within which
 the crime could have occurred." Hall, 171 Mont. at
36, 554 P.2d at 757.
The defendant here had notice of the nature of the
charges against him and adequate opportunity to defend. He
did not request postponement of the trial date after the
district court granted leave to file the amended information.
Defendant presented two alibi witnesses and a witness who had
investigated the charges contained in the original
information.
Noticing an alibi defense to the original information
did not change the nature of the charges against defendant or
incorporate time as a necessary element of the State's proof.
We conclude, as the Idaho Supreme Court did in State v.
Rogers (Idaho 1 9 2 9 ) , 283 P. 44, 45:
"It would be a very weak rule of law that would
permit a man to ravish a fifteen year old
girl ... and then say in effect: 'You cannot
convict me of this crime, as you did not guess the
right date.'"
We hold that the amended information stated the time and
place of the charged offenses as definitely as could be done
under the circumstances of this case. Having concluded that
defendant's assertion of an alibi defense did not change the
nature of the offenses charged a.gainst him, we hold that the
trial court did not err in allowing the defendant to be
charged and tried on the amended information.

Did the trial court err in excluding testimony of Don
Goddard, defendant's professional investigator?
Defense counsel hired Don Goddard to investigate the
charges alleged in the original information. Goddard
testified that he talked to at least 35 or 40 people,
reported to defense counsel, and was advised that an alibi
defense would be made based on his investigation of the
original dates and times.
Goddard testified that he had worked as an insurance
adjuster for 17 years after retiring from the Air Force, but
that he also did legal investigations. He also testified
that he attended "a course conducted by the Inspector General
of the United States Air Force, for nine weeks, or
approximately nine weeks, where the emphasis was on
investigative procedures and reports writing," and that he
did 2 or 3 investigations for criminal defense lawyers each
year.
The trial court sustained the State's objection when
defense counsel asked Goddard whether his investigation
established that defendant was not home at those times
specified in the original information. The State asserted
that the question lacked relevancy since defendant was being
tried on the amended information. Defense counsel argued
that Goddard's testimony regarding alibi evidence was
relevant to impeach T. 's testimony. The trial court refused
to allow Goddard to synopsize evidence gleaned from the
approximately 40 persons whom Goddard had interviewed during
his investigation. In ruling that Goddard could not testify
that other witnesses had furnished defendant with a perfect
alibi to the original information, the trial court noted that
defense counsel could still argue to the jury that T. changed
her story and the original information was amended after the
original charges were investigated.
The assertion that Goddard was called as an expert
witness is made for the first time on appeal. Since no such
assertion was made during the trial, the adequacy of
Goddard's qualifications to testify as an expert was not
challenged. Even if he were qualified by knowledge, skill,
experience, training or education to testify as an expert
witness, the subject matter of his proposed testimony does
not require expert testimony. Rule 702, M.R.Evid., permits
opinion testimony by an expert where "scientific, technical,
or other specialized knowledge" is involved. Goddard ' s
proposed testimony about defendant's alibi defense and the
victim's credibility did not involve scientific, technical or
specialized knowledge. Goddard's proposed testimony about
the results of his investigation was not a proper subject
matter for expert testimony.
Rule 701, M.R.Evid., permits lay witnesses to testify
about their opinions as long as those opinions are based on
their own perceptions. Goddard's proposed testimony was not
based on his own perceptions. He proposed to summarize alibi
evidence gathered from interviewing other persons regarding
the crimes charged in the original information. Alibi
evidence is properly presented by witnesses testifying as to
their own opinions and perceptions. The jury is just as
qualified as an investigator to draw inferences and
conclusions from evidence of alibi.
In addition to Goddard, the defense presented two actual
alibi witnesses to the jury. Irving Simpson testified that
defendant often worked at his ranch during the evenings and
spent five days on the range with him in the later part of
May. Walter Pekovich testified that he often jogged and
lifted weights with defendant in the evenings. We note that
the testimony of these alibi witnesses falls far short of
investigator Goddard's proposed summary of witness
statements.
We hold that the trial court properly excluded hearsay
and opinion testimony of defendant's investigator, Don
Goddard.
 I11

Was the State's cross-examination of defendant's

c h a r a c t e r w i t n e s s Simpson improper?

I r v i n g Simpson t e s t i f i e d a s a c h a r a c t e r w i t n e s s f o r t h e

defendant. Simpson had known d e f e n d a n t f o r t h r e e y e a r s and

had used him a s a h i r e d hand on h i s r a n c h i n 1979 and 1981.

O d i r e c t examination,
n Simpson t e s t i f i e d a t l e n g t h a s t o t h e

defendant. His testimony was strongly supportive of the

defendant. I n s u b s t a n c e , he t e s t i f i e d t h a t t h e d e f e n d a n t was

a t o p r a n c h hand; t h a t he was good w i t h a n i m a l s ; t h a t Simpson
had never seen the defendant "abuse nothin"; that once

Simpson saw a h o r s e r e a r and h i t t h e d e f e n d a n t h a r d i n t h e

nose, b u t t h e defendant "didn't g e t v i o l e n t o r nothin l i k e

most guys would"; that the defendant liked to have his

family, including t h e children, with him w h i l e he worked;

t h a t he liked h i s k i d s v e r y much and he n e v e r r a i s e d h i s

v o i c e t o them; t h a t he was a f a i t h f u l worker who c o n t i n u e d t o

work r e g a r d l e s s o f t h e t i m e o f t h e day and would r e t u r n i n

t h e e v e n i n g when n e c e s s a r y ; t h a t when Simpson was i n v o l v e d i n

a p r o t e s t on a d j o i n i n g f e d e r a l l a n d , t h e d e f e n d a n t , who was

on p a r o l e a t t h e t i m e , i n s i s t e d on r i d i n g s i d e - b y - s i d e with

Simpson; that he suffered personal injury and discomfort

without complaint; that he was frequently a guest at the

Simpson house and was " r e a l p o l i t e " ; t h a t t h e y were v e r y good

friends and had no arguments or fights. On

cross-examination, Simpson i n d i c a t e d t h a t he would t r u s t t h e

d e f e n d a n t w i t h a n y t h i n g o f h i s and t h a t he n e v e r d i d c a t c h

t h e d e f e n d a n t l y i n g t o him. O r e d i r e c t e x a m i n a t i o n , Simpson
n

testified that as f a r a s he knew, t h e d e f e n d a n t had n e v e r

l i e d t o him. With r e g a r d t o d e f e n d a n t ' s p e a c e f u l o r v i o l e n t

n a t u r e , Simpson t e s t i f i e d on r e d i r e c t e x a m i n a t i o n :

"Q. Would you describe Randy as a v i o l e n t man?
 "A. No. I never have seen him raise his voice,
scream at the kids or cattle or anything.
"Q. Physically abuse anyone?

By this evidence defense counsel placed in issue the
character of the defendant with regard to truthfulness and
non-violence or peacefulness.
With regard to the opinions expressed by witness Simpson
on redirect examination, he was examined by the State on
recross-examination as follows:
"Q. If there were any instances of violence, would
that change your opinion at all?
"A. oh, you bet, yah.
"Q. What if they occurred prior to the time that
you knew him?
"A. It would change my opinion.
"Q. It would change your opinion?
"A. Yah.
"Q. If you knew that he had done - committed some
violent crime?
"A. Yah.
"Q. Would it change your opinion of him as a
friend and as a person, if you knew that he had
lied to you?
"A. Yup.
"Q. Would it bother you if you found out that he
had lied to you about being a prisoner of war?
Would that change your opinion of him?
"A. I imagine it would, yes, mmhm."
In chambers, counsel for the State and defense counsel
then discussed the nature of the examination planned by the
State. The State pointed out that under Rule 405(b),
M.R.Evid., when a defense witness presents favorable opinion
evidence to the jury, the State is entitled to challenge the
witness' basis for knowledge. The State contended it was
entitled to test Simpson's opinion by inquiring whether he
knew that the defendant had been convicted of armed robbery
and that he forcibly escaped from jail by overpowering a
jailer. While defense counsel suggested that perhaps
testimony should be limited to the same period of time about
which witness Simpson had testified on direct and redirect
examination, no objection was made to this type of evidence.
In substance the State then inquired of witness Simpson
whether his opinion of the defendant, as non-violent,
trustworthy and believable, would change if he knew (1) that
in October, 1975 the defendant was convicted of first degree
robbery in the state of Kentucky; (2) that he attempted to
hijack an airplane while in Vietnam, assaulted the pilot with
a .45 caliber pistol and threatened to kill him; (3) that a
month after the incident with the airplane, he burned down a
prison cell block and escaped in Vietnam; and (4) while in
custody in Great Falls, he overpowered a jailer, sprayed him
with a fire extinguisher and escaped from jail. Simpson
indicated that his opinion might change in connection with
some of these points.
The State then asked if he knew that the defendant was
never a prisoner of war. At this point, defense counsel
objected that no record of these facts existed. Counsel for
the State stated, "Ethically I'm bound to have prima facie
showing that this is in fact true, and I state as an officer
of this court that I can establish that." The court allowed
the State to proceed. Defense counsel made no further
objection.
Witness Simpson further testified:
"Q. So if those things were true, Mr. Simpson, you
would have an entirely different view of the
Defendant, would you not?
"A. Yes, if I knew that they was true - if I knew
it when I hired him, I wouldn't have hired him.
 "Q. I know that. But if you found that they were
true now, your opinion would change drastically
wouldn't it?
"A. Yah, it would.
"Q. And you would feel like you had been taken to
the cleaners, wouldn't you?
"A. Yes.
Defendant contends that inquiring into these specific
instances of conduct was improper cross-examination. He
argues that the alleged conduct was unrelated to the crime
charged and irrelevant. He also argues that if the conduct
is deeme.d to be relevant, then its prejudicial effect
outweighs any probative value.
The State contends that the defense opened the door by
placing defendant Is character traits of honesty and
peacefulness in issue. The State further contends the
cross-examination properly tested the credibility and
reliability of Simpson1s direct testimony that the defendant
never lied and was not a violent man, and that all its
challenged questions were within the scope of direct
examination.
Admissibility of evidence on relevancy grounds is
governed by Rules 401 through 411, E'l.R.Evid. Character
evidence is generally not admissible. Rule 404, M.R.Evid.
However, where the accused offers evidence of a pertinent
trait of his character, then evidence is admissible by the
prosecution to rebut the same. Rule 404 (a)(1), M. R.Evid. The
prosecutor is permitted to cross-examine the witness to test
the witness1 grounds of knowledge.
The method of proving the evidence of a pertinent trait
of the defendant's character is provided in Rule 405,
M.R.Evid., which covers proof by testimony as to reputation
or testimony in the form of an opinion:
 "(a) Reputation or opinion. In all cases in which
evidence of charaFter or a trait of character of a
person is admissible, proof may be made by
testimony as to reputation or 9 testimony - -
in the
form of an opinion. On cross-examination, inquiry
---
- allowable into relevant. s~ecific instances -
is L
of
conduct." (emphasis added)
Although the majority of jurisdictions have made reputation
the exculsive mode of proof, Montana follows the modern trend
to accept both reputation and opinion. 7 Wigmore, Evidence
51983 (Chadbourn Rev. 1978) at 215.
Simpson testified at length and in detail as to the
defendant's character with particular emphasis on his
truthfulness and peacefulness. Defendant denied having
sexual relations at any time with T. and denied any act of
violence towards T. As a result, questions regarding
defendant's character traits of truthfulness and peacefulness
pertain to the key parts of his defense. It was appropriate
that the State inquire on cross-examination.
The leading ca.se on the scope of cross-examination of a
character witness is Michelson v. United States (1948), 335
U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168. While the testimony
involved in Michelson was testimony regarding the reputation
of the defendant, the principles enunciated by the Court are
applicable. The United States Supreme Court discussed
several critical factors, including (1) that the trial court
took pains to ascertain that the prior crime was an actual
event; (2) the trial court instructed the jury to consider
the inquiry only for the limited purpose of evaluating a
witness ' s testimony; (3) there was no specific objection made
by the defense attorney. The other factors discussed by the
Court are not pertinent.
Our Rule 405, M.R.Evid. is a development that extends
beyond the type of evidence allowed in Michelson in 1948,
when evidence of character was presented by evidence of
reputation only. Rule 405, a more modern rule, allows
character evidence to be presented through testimony in the
form of an opinion as well as testimony as to reputation.
Rule 405 (a), M.R.Evid. specifically allows the inquiry on
cross-examination into relevant, specific instances of
conduct.
Here, the prosecutor's questions all dealt with specific
instances of conduct which had a direct relationship to the
character traits of truthfulness and non-violence or
peacefulness. The cross-examination was specifically
allowable under the rules. The only objection made by
defense counsel was to the absence of a record showing the
defendant was never a prisoner of war. In response, the
prosecution stated as an officer of the court that this could
be established as true. No further objection was made by
counsel for the defendant. No specific objection was made by
the defense attorney to the whole line of questioning. The
trial court carefully instructed the jury to consider the
inquiry only for the limited purpose of evaluating the
opinion. The Michelson factors were properly considered.
We hold that the questioning on cross-examination of
character witness Simpson was within the scope of the direct
examination, consisted of inquiry into relevant, specific
instances of conduct as authorized under Rule 405, and was
proper to impeach the witness1 opinion testimony.
IV
Did the State improperly impeach defendant's testimony?
Defendant contends that he was improperly cross-examined
on many separate, collateral crimes or wrongs that were
irrelevant. In the alternative, he contends that even if
this evidence were relevant, the combined prejudicial effect
upon the jury outweighed any probative value.
The State contends that the prosecutor properly
impeached defendant's character evidence and his defense
theory that Mary Clark fabricated evidence in order to frame
him. The State further contends that evidence regarding
defendant ' s military history was admitted to rebut
defendant's direct testimony.
Rule 403, M.R.Evid. provides for exclusion of otherwise
relevant evidence:
"Although relevant, evidence may be excluded if
its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of time, or
needless presentation of cumulative evidence."
A key element of this rule is the trial judge's discretion to
decide whether otherwise relevant evidence is to be excluded
because of the factors listed in the rule. See Commission
Comments, Rule 403, M.R.Evid. The court has a duty to
conduct the tria.1 in a fair manner and has a great amount of
discretion in so doing. State v. Dickens (Mont. 1982), 647
P.2d 338, 341, 39 St.Rep. 1137, 1140; State v. LaMere (Mont.
1980), 621 P.2d 462, 466, 37 St.Rep. 1936, 1941.
On direct examination, the defendant testified to the
following collateral crimes or wrongs: While in Vietnam in
1968, he boarded a plane with an automatic pistol and without
a pass, walked to the cockpit, locked the door and talked to
the pilots for three hours, trying to convince them to take
him to Hong Kong. He escaped from the brig and lived in the
Chinese section of Saigon for 116 days. During that time he
was held as a prisoner by the North Vietnamese for 2 days.
He was never officially classified as a prisoner of war
because he was on desertion status at the time. Defendant
escaped from a maximum security federal mental institution
upon his return to the United States in 1963 and was in five
psychiatric hospitals before receiving an honorable discharge
and medical retirement from the military. He pled guilty to
robbery of a motor vehicle and escape in 1975 and guilty to
transporting a stolen car across state lines and jumping bond
in 1979.
Defendant also testified on direct examination to the
following acts of misrepresentation: He told people in Saco
that he received income from his father's business because he
did not want to say he received a $1,733 per month disability
pension from the Veterans Administration. He told Roy Sauder
that he was "a qualified group therapist," so he could work
at a youth camp helping delinquent juveniles. He told Ed
Kelsey that he had studied veterinary medicine so Roy would
agree to destroy a horse at the youth camp. He told a U. S.
Department of Interior secretary that he was an attorney
trying to talk with Secretary Watt. Defendant characterized
these misrepresentations as doing favors for friends and
concluded, "I did nothing malicious by misrepresenting
myself to anybody."
Regarding his home life, defendant testified on direct
examination that "there was never any violence in that
house. " He denied hitting Mary. He contradicted T's
testimony that he hit her in the face with the telephone. He
testified he "never laid a hand on those kids." He denied
the charges against him, testifying that he never in his life
had sexual intercourse with or abused T.
On cross-examination, defendant denied that he had
actually threatened anyone in the 1968 airplane incident in
Vietnam, but he admitted that he had pled guilty to
hijacking, assaulting the pilot and crew, and carrying a
concealed weapon. He admitted to escaping from the brig and
pleading guilty to desertion, then altering his own military
records to reflect that he had been a prisoner of war. He
also admitted to pleading guilty later to escape, mutiny and
arson while in the service.
 In contradiction to defendant's assertion that he only
lied to do favors for friends, he admitted on
cross-examination that he had falsified a birth certificate
to obtain a driver's license. In contradiction to his
characterization of himself as a nonviolent, nonabusive
individual, defendant admitted that he had written letters to
Mary after his arrest threatening to kill her.
It is a well-settled rule that the proper scope of
cross-examination is determined by the scope of direct
testimony. Here, the defendant offered direct testimony
about specific instances of past conduct. As part of his
defense, he reiterated these instances and attempted to
explain any conduct from which the jury might conclude that
he was not a peaceful, honest man, who had been repeatedly
wronged by circumstances beyond his control.
Defendant specifically challenges the prosecutor's use
during cross-examination of letters he admitted writing to
his wife. These letters were of a threatening nature. They
were not offered or admitted into evidence, and no objection
to their use was made by defense counsel at trial. Defendant
a.sserts that, even absent objection, cross-examination
regarding the letters was reversible error in that it
confused and prejudiced the jury in violation of Rule 403,
M.R.Evid. We disagree.
Cross-examination tending to prove that the defendant
had attempted to intimidate Mary Clark went to the heart of
the defense theory that Mary had coerced her children and
perjured herself in order to frame the defendant. In State
v. Shaw (Mont. 1982), 648 P.2d 287, 39 St.Rep. 1324, this
Court stated that " [iln a criminal prosecution any attempted
intimidation of a witness is properly attributable to a
consciousness of guilt and testimony relating thereto is
relevant and admissible in evidence." 648 P.2d at 289-90, 39
St.Rep. at 1327, quoting People v. Smith (1972), 3 Ill.App.3d
958, 279 N.E.2d 512, 513. We conclude that this rule applies
to documentary evidence as well as to testimony. We find no
abuse of discretion in the trial court and hold that it was
not error to permit cross-examination on this element of the
defense theory.
Secondly, defendant challenges admission of State's
Exhibit 21, a detailed psychological report supposedly from
Bethesda Naval Hospital. Defense counsel objected to
admission of the report into evidence on the grounds of
relevancy, after defendant had identified the document and
admitted that he had fabricated it. The court admitted the
report as evidence of defendant's ability to manufacture
evidence and to fabricate. We find no error in the admission
of a psychological report that indicates the degree of skill
with which defendant could fabricate when it suited his
purpose.
In significant part, the jury was required to resolve a
basic contradiction between the testimony of the defendant
and that of the victim. The traits of honesty and
peacefulness were the bulwark of the defense. The State's
cross-examination of the defendant was no broader than was
required to meet the bold assertions and admissions during
the direct examination of the defendant.
We hold that the questioning by the State was proper
impeachment of the defendant.
v
Was the testimony of the State's rebuttal witness, Dr.
William Stratford, properly admitted?
Dr. Stratford, a medical doctor and psychiatrist, was
called as a rebuttal witness by the State. He was offered as
an expert witness in forensic and child psychiatry. As
foundation for his expert testimony, Dr. Stratford testified
that he was a psychiatrist for Montana State Prison for six
years; that forensic psychiatry constituted approximately
one-third to one-half of his practice, and that he had
testified as an expert in forensic psychiatry in hundreds of
criminal cases. Dr. Stratford also testified that child
psychiatry was his subspecialty, that he had rendered in
excess of 2,500 court evaluations concerning criminal and
civil matters, including child custody, and that he ha.d been
accepted as an expert in child and adult psychiatry in
hundreds of court cases. The court accepted Dr. Stratford as
an expert witness in all fields of psychiatry, including
adult and child psychiatry.
The trial court had originally ordered Dr. Stratford to
determine whether the defendant was competent to stand trial.
Dr. Stratford had visited the defendant four times in the
county jail prior to trial. He testified that it was his
expert opinion and diagnosis that the defendant was
malingering, making a conscious attempt to appear mentally
ill, and that defendant suffered from antisocial personality
disorder.
As an expert in child psychiatry, he testified that it
is not unusual for a child initially to deny the number
times she has been sexually assaulted. Regarding this
avoidance or denial tactic, the State posed the following
hypothetical question:
"You can assume the following facts: You can
assume that a girl 12 years old gives a statement
in which she relates that her step father raped
her, sexually assaulted.her, over a period of about
13 weeks, and on the initial occasions that she
talked to Law Enforcement, she states that it
occurred on about eight occasions. As time goes
on, she reveals that it occurred on about forty
occasions, or as many as 40, not less than 25, not
 more than 40. She states that on occasion when
questioned by her peers that she gave the answer
her mother told her to say this, it really didn't
happen. NOW, what can you tell me as far as that
child is concerned - whether or not those kinds of
responses are tactics of avoiding - to avoid
talking about the incident?"
Dr. Stratford explained that sexually abused children are
usually female and are often dealing with fear because they
have been overtly threatened. Denial occurs because
"oftentimes children feel filthy, dirty, ashamed, they feel
often guilty, responsible - they're basically afraid of
upsetting the family constellation and they're afraid of what
their parents - mother or step father - may do to them."
Defendant contends that Dr. Stratford's testimony was
improper rebuttal evidence and that his conclusion and
diagnosis were based on privileged communications.
The State contends that only defendant's statements are
protected communications and that Dr. Stratford properly
testified as to defendant's condition. His testimony was
relevant and admissible because it tended to refute testimony
that the defendant was nonthreatening and to explain
testimony that T. denied the rape at school.
"Rebuttal testimony is that which tends to disprove or
contradict evidence presented by the adverse party." State
v. Williams (1979), 185 Mont. 140, 153, 604 P.2d 1224, 1231.
The facts of this case do not support defendant's contention
that Dr. Stratford presented new evidence rather than
rebuttal testimony. Dr. Stratford's diagnosis coincided with
that of defense witness, Dr. Moss, who diagnosed the
defendant as a sociopath. However, Dr. Stratford's
conclusion that the defendant was malingering and consciously
attempting to appear mentally ill refuted defendant's express
denial that he was "putting on an act . . . [to] gain favor
in court. "
 Another defense witness testified that when T. was asked
at school whether Randy really raped her, she said "No, my
mom is just making me say that." Dr. Stratford's explanation
of children's denial or avoidance tactic directly contradicts
the direct testimony of this defense witness. It indicates
that T.'s denial reaction was typical of children who are
sexual assault victims.
Defendant asserts that Dr. Stratford's diagnosis was
based on confidential communication with him and was
therefore inadmissible. We disagree.
Section 46-14-401, MCA provides in pertinent part:
"Admissibilit of statements made during
examination oz treytment. A statement made for the
purposes ofpsychiatric examination . . .
is not
admissible in evidence against him in any criminal
proceeding, . . .on any issue other than that of
his mental condition. It is admissible on the
issue of his mental condition, whether or not it
would otherwise be considered a privileged
communication., unless it constitutes an admission
of guilt of the crime charged . . ."
Defendant contends that this statute precludes Dr.
Stratford's testimony regarding his mental condition becau
(1) Dr. Stratford's knowledge of defendant's condition was

acquired during the court-ordered examination, and (2) Dr.
Stratford's diagnosis was based on privileged communications.
Section 46-14-401, MCA is based on Model Penal Code,
section 4.09.

"This section embodies the view tha.t the important
expert knowledge of the mental condition of a
defendant acquired by examination or treatment on
order of the court should be fully available in
evidence in any proceeding where his mental
condition may properly be in issue; but ..
. the
defendant's statements made for this purpose may
not be put in evidence on any other issue."
Commission Comments, section 46-14-401, MCA.
It does not restrict the manner in which the issue of
defend.antls mental condition may arise. In fact, the
Official Comments to the Model Penal Code state that section
4.09 "clearly makes statements made for purposes of either
examination or treatment admissible on the issue of mental
condition wherever and however that issue may arise."
While it is true that the defendant did not notice a
defense of mental disease or defect, he placed his mental
condition in issue by calling Dr. Scott Moss, a clinical
psychologist, as a defense witness. Counsel for the
defendant asked Dr. Moss to relate to the jury the kinds of
treatment programs defendant had participated in at the
Federal Prison in Lompoc, California. Defense counsel also
asked Dr. Moss how reliable he believed the Veterans
Administration Hospital's diagnosis of paranoia schizophrenia
was and whether that diagnosis affected the therapy he had
given the defendant. Dr. Moss' direct testimony as an expert
witness for the defense clearly placed the defendant's mental
condition in issue.
Section 46-14-401, MCA protects statements made as
privileged communications, such as an accused's confession to
a psychiatrist. No such statements were involved in Dr.
Stratford's testimony about the defendant's mental condition.
That section does not preclude psychological testimony by a
court-appointed psychiatrist, where the issue of defendant's
mental condition is raised by the defense during trial.
Where a defendant places his mental condition in issue,
the State must be afforded the opportunity to present
rebuttal evidence. A court-appointed psychiatrist may
testify as a rebuttal witness if his diagnosis of a
defendant's condition differs from that of an expert witness
for the defense. Such a rule makes use of information
gathered by a neutral factfinder. See In re Miller (1977),
175 Mont. 318, 573 P.2d 1155; In re Sonsteng (1977), 175
Mont. 307, 573 P.2d 1149. It does not negate the statutory
prohibition against revealing statements made during a
court-ordered examination.

We hold that the testimony of the State's expert,
rebuttal witness was properly admitted.
The judgment of the District Court is affirmed.

We concur:

Chief Justice

Justices
 I respectfully dissent.
The trial court erred in permitting defendant's Vietnam
service record to be introduced for the purpose of rebutting
the testimony of the witness Irvin Simpson.
The majority opinion recites at length the testimony of
this witness that the defendant was a top ranch hand; that he
was good with animals; that the defendant liked to have his
family and children with him while he worked; that defendant
was a faithful worker; that the defendant suffered personal
injury and discomfort without complaint. The witness a.lso
testified that the defendant had never lied to him, that he
had not seen him physically abuse anyone and that defendant
had not raised his voice or screamed at the kids or cattle.
Of course, all of this testimony was objectionable. The
testimony did not prove character.
The rule is well settled that witnesses called by
defendant may not testify about defendant's specific acts or
courses of conduct. Michelson v. United States (1948), 335
U.S. 469, 69 S.Ct. 213, 93 L.Ed 168. A character witness's
knowledge of particular acts is not admissible to prove the
character of the accused since the word "character" means
reputation as distinguished from disposition. Stewart v.
U.S. (1939), 104 F.2d 234, 70 App.D.C. 101. Evidence that
the defendant was charitable is held not to be admissible to
prove good character. Steinberg vs. U.S., 162 F.2d 120,
certiorari denied 68 S.Ct. 108, 332 U.S. 808, 92 L.Ed. 386.
Testimony as to defendant's conduct as an employee likewise
has been held inadmissible as character evidence. U.S. v.
White (1963), 225 F.Supp. 514, cause remanded 349 F.2d 965.
Here the prosecution sought to impeach the testimony of
witness Simpson with specific acts of conduct committed while
the defendant was in service in Vietnam. The admissibility
 s

CORRECTION. In preparing this opinion for pub-
lication, we noted in our verification of titles and
Hon. Frank B. Morrison
citations the matters listed below. Corrections have
Justice, Supreme Court
been made on our copy of the opinion.
Room 414 Justice Building
215 North Sanders
Helena, Montana 59620

Date:

Re: July 10, 1984
State v. Clark, No. 83-44, May 8, 1984, dissent

Page 28, line 19 --- State v. Mormon should read State v. Moorman.
(Also cited in line 20, same page).

WEST PUBLISHING COMPANY
Box 3526
St. Paul, M 55165
N
of this type of evidence is governed by Rule 405(a)

M.R.Evid., which states:
"(a) Reputation or opinion. In all cases in which
evidence of character or a trait of character of a
person is admissible, proof may be made by
testimony as to reputation or by testimony in the
form of an opinion. On cross-examination, inquiry
is allowable into relevant specific instances of
conduct. "
The witness Simpson could have properly expressed an
opinion with respect to defendant's reputation for either
honesty or peacefulness. On cross-examination the State then
could have inquired about specific acts which were relevant
to the reputation testimony.
Rule 405 (a) is not clear whether the witness can give
testimony beyond the scope of his own knowledge.
Historically the rule has been that character witnesses could
give testimony respecting the defendant's reputa.tion in the
community.
"J ' 0 f:, , ,,"
State v.'~ormbn (1958), 133 Mont. 148, 153, 321
$+.r/ 1 JLk
P.2d 236. In ~ o r m o nthis Court did allow cross-examination
on specific acts but indicated that those acts must have been
committed in the community where the witness formed his
opinion about the defendant's reputation. The Court said:
"While the general rule may be as defendant states,
that is, cross-examination of character witnesses
must be based on acts within defendants community.
In this regard see citation of authority in
Annotation, 71 A.L.R. 1504, 1517, 1535. It was not
contended by defendant or the State that the acts
upon which the character witnesses were
cross-examined occurred anywhere but in Laurel, the
community where defendant had lived most of his
life, the community in which the character
witnesses knew him, the community in which they had
heard the rumors and reports propounded to them.
From the foregoing discussion it is apparent to
this Court that defendant's second alleged errors
without merit. "
In this case we are presented with testimony of a
witness who testified about defendant's work habits and the
way he treated animals and children. No character evidence
was given. If the witness had expressed an opinion about the
defendant's reputation in the community cross-examination
would properly be permitted on specific acts of the defendant
which occurred in the community and which would tend to
impeach the direct testimony. The rule would not allow for
testimony about the defendant's conduct in Vietnam. However,
in this case no character evidence was even offered and no
specific acts refuting character testimony should have been
allowed.
The State failed to object to the inadmissible testimony
offered by the defendant's witness Simpson. Since the
testimony was in the record it could be refuted by the State
hut the impeachment evidence would have to be limited to that
evidence directly contradicting the witness. In other words,
evidence could have been introduced to show that defendant
did mistreat children or animals in the presence of the
witness.
Perhaps this seems technical but the rules of evidence
have a sound basis. Specific acts of misconduct on the part
of the defendant have a tendency to prejudice the defendant's
right to a fair trial and must be carefully controlled by the
trial court. The testimony here admitted against the
defendant far exceeded the bounds of any legitimate
impeachment inquiry.
I would reverse and remand for a new trial.
Mr. Justice Daniel J. Shea, dissenting:

Generally, 7: agree with Justice Morrison in his
conclusion that the offered evidence was not properly
character evidence, and therefore, even if defendant opened
the door, the offered evidence was inadmissible.
Beyond this, however, 1 believe that even if the
evidence were admissible under the theory taken by the
majority, the evidence was so highly prejudicial, so highly
inflammable, that the trial court should not have admitted it
in any event. It is but another example of the State seeking
to achieve a conviction by any means possible, and in doing
so stretching the law of evidence beyond the breaking point.

L Justi

Mr. Justice John C. Sheehy:
I concur in the foregoing dissents of Mr. Justice
Morrison and Mr. Justice Shea.

Justice