State v. Pecora

No. 79-119

I N THE SUPREME C U T O THE STATE O MONTANA
O R F F

1980

THE STATE O MONTANA,
F

P l a i n t i f f and Respondent,
-vs-

LUIS PECORA,

Defendant and A p p e l l a n t .

Appeal from: D i s t r i c t Court of t h e T h i r t e e n t h Judicia; J l i s t r i c t ,
I n and f o r t h e County o f Y e l l o w s t o n e , The Honorable
Diane G. B a r z , Judge p r e s i d i n g .

Counsel o f Record:

For A p p e l l a n t :

B e r g e r , Anderson, S i n c l a i r & Murphy, B i l l i n g s ,
Montana
C h r i s Nelson a r g u e d , B i l l i n g s , Montana

F o r Respondent:

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Mark Murphy a r g u e d , A s s t . A t t y . G e n e r a l , H e l e n a ,
Montana
Harold F. H a n s e r , County A t t o r n e y , B i l l i n g s , Montana
James Whalen a r g u e d , Deputy County A t t y . , B i l l i n g s ,
Montana

Submitted: September 1 5 , 1980

Decided : O N 2 2 1986
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

~efendantappeals from a Yellowstone County District
Court conviction on one count of sexual intercourse without
consent.
The issues presented are: (1) whether the District
Court erred in refusing a Smith-type jury instruction; (2)
whether the jury was properly instructed on the consent
issue; and (3) whether the court erred in refusing to order
depositions of two witnesses.
On the night of July 2, 1979, defendant and his twenty-
year-old adopted daughter (the victim) were alone at the
family home in Billings. They passed the evening in routine
family pursuits. At about 10:OO p.m., the victim retired to
her bedroom. The defendant followed her into the room, and
after several hours of discussion, the couple engaged in
sexual intercourse. Thereafter, the victim fled the house
via her bedroom window and ran to her sister's home, from
which the police were summoned.
Both parties generally agree as to the events of the
evening. Their testimonies do not conflict essentially on
the occurrences leading up to and including the sexual
intercourse. They disagree as to whether the victim consented.
The victim testified that after defendant followed her
into the bedroom, he slapped and choked her, whereupon she
screamed. When he later momentarily left the room, she
tried to lock the door. Upon his return, she struggled and
resisted for as long as she was able. She denied cooperating
or consenting to sexual intercourse at any time.
Defendant testified that a jocular mood existed that
night, that he followed her into the bedroom in a playful
spirit, and that he neither slapped nor choked her. As
their discussion progressed, he became serious about having
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sexual relations, but she was reluctant. When he left the
room, she stood up but did not try to lock the door. When
defendant returned and initiated sexual advances, she presented
only token resistance, which ceased altogether as defendant
persisted. Defendant claims she thereafter consented and
cooperated fully in the ensuing activity.
A medical examination of the victim the following
morning revealed a mildly reddened right cheek, described as
equivocal, and two linear bruises over her chest. There
were no marks on her neck.
The defense offered the following instruction, which
the court refused.
"You are instructed that the charge of Sexual
Intercourse Without Consent is easy to make,
difficult to prove, and more difficult to disprove,
and in considering a case of this kind, it is the
duty of the jury to carefully and deliberately con-
sider, compare and weigh all testimony, facts and
circumstances bearing on the act complained of, and
the utmost care, intelligence and freedom from bias
should be exercised by the jury (sic) consideration
thereof. "
The defendant argues that since there is a lack of corroboration
on the critical matter of consent, the defense was entitled
to the instruction pursuant to State v. Smith (1980), -
Mont. , 609 P.2d 696, 37 St.Rep. 583.
In Smith, as in the present case, the occurrence of the
sexual act was not disputed. In Smith, however, there was
evidence of both malice and motive on the part of the victim
for revenge, in addition to a complete absence of corroboration
on the issue of consent. These circumstances prompted this
Court to state in Smith:
"The evidence clearly meets the standard of
private malice, desire for revenge and absence
of corroboration on the critical matters of consent,
all as required by State v. Ballew (1975), 166 Mont.
270, 275-76, 532 P.2d 407, 410-11, and cases cited
therein." 609 P.2d at 699.
 Failure to grant this cautionary instruction under the
facts presented in Smith necessitated remand.
Ballew, supra, involved a deviate sexual conduct charge
where the complaining witness was a sixteen-year-old boy. There
was no evidence of ill-will between the victim and defendant,
and the physical evidence supported the victim's testimony.
The defendant in Ballew denied making any sexual advances.
This Court rejected the proffered cautionary instruction,
ruling:
". .. refusal to give such an instruction will
be error only when some specific cause is shown
for distrusting the testimony of the complaining
witness. Such causes might include manifest
malice, desire for revenge, or an absence of
corroborating evidence tending to support the facts
testified to by the complaining witness." 166
Mont. at 276, 532 P.2d at 411.
Thus, Ballew focuses on a specific cause for distrusting
the victim's testimony. This Court has indicated in State
v. Just (1979), - Mont . -, 602 P.2d 957, 964, 36 St.Rep. 1649,
1659, that lack of corroboration, standing alone does not
constitute sufficient cause for distrust. The ruling in
Smith, supra, provides that a showing of some type of personal
enmity coupled with a lack of corroborative evidence on the
disputed areas of testimony may give rise to distrust.
In this instance, the record reflects neither private malice
nor motive for revenge on the part of the victim, nor is
there a lack of corroborative evidence regarding consent.
The District Court's refusal of the cautionary instruction
was thus not error.
The defense theory at trial was that the victim acted
as a consenting partner in the sexual relations, notwithstanding
her original reluctance. Defendant argues the instructions
given, mandated conviction because they did not fully present
the law as applicable to this defense theory. Defendant
offered four a l t e r n a t i v e i n s t r u c t i o n s purporting t o f u l l y

recite the law. S i n c e e v i d e n c e s u p p o r t i n g t h e t h e o r y was

a d m i t t e d , d e f e n d a n t a r g u e s t h e j u r y s h o u l d have been i n s t r u c t e d

regarding t h e defense theory.

Some e v i d e n c e s u p p o r t i n g t h e d e f e n s e t h e o r y w a s i n d e e d

included i n t h e record. Had d e f e n d a n t o f f e r e d an a c c e p t a b l e

i n s t r u c t i o n , it s h o u l d p e r f o r c e have been g i v e n . S t a t e v.

Buckley ( 1 9 7 6 ) , 1 7 1 Mont. 238, 242, 557 P.2d 283, 285.

However, e a c h of d e f e n d a n t ' s c o n s e n t i n s t r u c t i o n s was r e p l e t e

w i t h m i s l e a d i n g s t a t e m e n t s and m i s s t a t e m e n t s of Montana law.

Failure t o present a s p e c i f i c , acceptable i n s t r u c t i o n regarding

i t s own t h e o r y p r e c l u d e s t h e d e f e n s e from a l l e g i n g r e v e r s i b l e

error. S t a t e v. Watson ( 1 9 6 5 ) , 1 4 4 Mont. 576, 584, 398 P.2d

The j u r y w a s g i v e n t h e f o l l o w i n g i n s t r u c t i o n :

"There i s no c l e a r r u l e a s t o how much r e s i s t a n c e
i s r e q u i r e d o f a woman i n o r d e r t o p r o v e h e r l a c k
o f c o n s e n t t o s e x u a l i n t e r c o u r s e w i t h a man who
intends t o rape her, apparently a t a l l costs. The
law d o e s n o t p u t h e r l i f e i n t o even g r e a t e r jeopardy
than it i s already i n . There i s no way a woman i n
d e a l i n g w i t h a man b e n t on r a p e can know how much
r e s i s t a n c e s h e c a n g i v e w i t h o u t provoking him i n t o
k i l l i n g h e r . Continuous r e s i s t a n c e t o an a t t e m p t e d
rape i s n o t required."

Although t h e i n s t r u c t i o n i s t a k e n d i r e c t l y from S t a t e v.

Glidden ( 1 9 7 4 ) , 165 Mont. 470, 474, 529 P.2d 1384, 1386, t h e

l a n g u a g e was n o t n e c e s s a r i l y i n t e n d e d n o r i s i t s u i t a b l e f o r

u s e as a j u r y i n s t r u c t i o n . Hunsaker v. Bozeman Deaconess

Foundation (1978) , Mont. , 588 P.2d 493, 509, 35

St.Rep. 1647, 1665. T h i s p a r t i c u l a r language i s a r g u m e n t a t i v e

and comments on t h e e v i d e n c e . It is therefore not appropriate

a s a j u r y i n s t r u c t i o n and s h o u l d n o t be s o used. The S t a t e

a g r e e d t o t h i s i n o r a l argument b e f o r e t h i s C o u r t .

Defendant i s n o t e n t i t l e d t o r e v e r s a l due t o t h e i m p r o p r i e t y

of t h e i n s t r u c t i o n . The o n l y d e f e n s e o b j e c t i o n s w e r e t h a t

t h e i n s t r u c t i o n was an i n c o m p l e t e s t a t e m e n t of t h e law, and
was more fully covered by defendant's proposed instructions.
The objections, on those improper brounds, were properly
overruled. Richland County v. Anderson (1956), 129 Mont.
559, 574, 291 P.2d 267, 275. Defendant, having failed to
make proper objection to the instruction, and indeed having
offered the same instruction, is bound by it. State v. Collins

(1978) - Mont . -, 582 P.2d 1179, 1185, 35 St.Rep. 993, 1001.
Defendant's final argument for reversal concerns the
District Court's refusal to order depositions of the victim's
sister and brother-in-law. Defendant contends depositions
were necessary pursuant to section 46-15-201(1), MCA, because
the witnesses refused to interview defense counsel unless some
member of the county attorney's office was present.
Here, an unwillingness by the witnesses to provide
relevant information is a necessary statutory element for
compelling depositions. Section 46-15-201(1), MCA. An interview
under circumstances directed by the witness would reflect
unwillingness only if the attached conditions make it untenable
for defense counsel to discover needed material. Kirkendall
v. Fisher (1976), 27 Ariz.App. 210, 553 P.2d 243, 245.
Where, as here, the witnesses were not uncooperative and
were interviewed by defense counsel, a prosecutor's presence
does not require further discovery. State v. Deddens (1976),
26 Ariz.App. 241, 547 P.2d 512, 513-14.
We do not hold here that any party other than a witness
may dictate conditions of an interview. Witnesses to a
crime are the property of neither the prosecution nor the
defense. Gregory v. United States (D.C.Cir. 1966), 369
F.2d 185, 188. The prosecution therefore may neither sequester
nor insulate witnesses from the defense on his own initiative.
There is no indication in the record that the proviso here was set
at the prosecution's suggestion or behest.
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 The statutory elements for compelling depositions
clearly do not exist here. The District Court acted well

within its discretion in refusing defendant's motion.

The judgment of the District Court is affirmed.

' - f
p ! - Justice ----

We Concur:

Chief Justice

Justices
Mr. Justice Daniel J. Shea concurs with the affirmance of
the conviction but not in all that is said concerning jury

instructions.

I emphasize first that the trial courts and counsel
should be discouraged from lifting language from court
opinions to be used as jury instructions. It is not good
practice. We covered that problem, I thought, in Hunsaker
v. Bozeman Deaconess Foundation (1978), Mont . I

588 P.2d 493, 509, 35 St-Rep. 1647, 1665. The plain fact is

that court opinions are not designed to nor intend to be
jury instructions.

Secondly, I do not agree with the majority opinion that

"failure to present a specific, acceptable instruction re-

garding its own theory precludes the defense from alleging
reversible error." That puts a burden on the defendant or

his counsel which is more properly with the trial court.
Once the defendant urges a particular theory, and there is
evidence in the record relating to that theory, it is then
the duty of the trial court to instruct on such theory. The
fact that defense counsel does not prepare an acceptable
instruction does not relieve the trial court of either putting

defense counsel to work drafting a proper one or drafting a
proper one himself. It is fundamentally and primarily the

duty of the trial court to see that the jury is properly in-
structed. That he should be aided by trial counsel goes
without saying; but that he can be relieved of his obligation
by placing the onus on counsel, has the effect of relieving
the duty of the trial court to properly instruct the jury.
That should never be the case.