No. 84-47
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
STATE OF MONTANA,
Plaintiff and Respondent,
ROBERT LEE NORRIS,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Charles Luedke, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Allen Beck argued, Billings, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Dorothy McCarter argued, Asst. Atty. General, Helena
Harold F. Hanser, County Attorney, Billings, Montana
Theresa O'Connor, Deputy County Attorney, Billings
Submitted: May 30, 1984
Decided: October 4, 1984
Filed: Ul;dj 584
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Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Robert Lee Norris wa.s convicted in the District Court,
Yellowstone County, Thirteenth Judicial District, on jury
verdict of two counts of sexual intercourse without consent
and one count of aggravated kidnapping. On consideration of
his appeal from those convictions, we affirm.
The principal issues raised by Norris on appeal are that
the District Court had improperly allowed evidence of prior
crimes committed with a person not the prosecutrix, and that
the District Court improperly admitted rebuttal testimony to
a fact issue not raised by the defendant Morris. Secondary
issues are that the District Court improperly limited the
scope of cross-examination of a witness not the prosecutrix,
and that a cautionary instruction given by the court was
legally insufficient.
We will set out a short statement of the facts from the
record from the viewpoint of the prosecutor. On January 30,
1983, Ann Hanson, then 1-5 years old, went to a motel
apartment for the purpose of babysitting the child of Lynn
and Robert Norris. The babysitting job had been arranged by
Ann's mother, who stipulated that Ann was not to stay in the
motel apartment if she were alone with Robert Norris. Ann
arrived at the motel at approximately 4:00 p.m., where Lynn
and Robert were present. A friend of Norris' , Carl Barnes,
was at the motel when Ann arrived or he arrived shortly
thereafter. Norris forced Ann to consume a substantial
portion of a pint of whiskey. Lynn and Carl left the
premises and in their absence, Norris committed by force two
acts of fellatio and a rape upon her person, along with other
sexual intrusions. Ann left the motel at approximately 8 : 0 0
p.m., reported to her mother what had happened, who brought
her to the police. The charges against Norris resulted.
Medical exanination of Ann immediately following the
incident revealed she had sustained a blackened. eye and a
cracked rib.
OTHER CRIMES
Debbie Huck, age 19, testified that in August 1982, she
had been called on the telephone by Norris to babysit at his
motel. She had been told that he and his wife, Lynn, were
going to a movie that night. When she got to the motel-, in a
taxi arranged by Norris, she found that Lynn was not at home.
He started telephoning numbers to try to find Lynn and then
started a conversation about Debbie being a model. She
testified that through fear of him she partially disrobed and
that eventually she was raped. He told her when she left
that he would pay her $250. About a week later, she
testified, she was called to the telephone by Norris, who
told her to come to the motel to pick up the money. When she
got there, when Lynn was also present, Norris injected her,
again through her fear of him, with two shots of cocaine in
her arms, and again raped and otherwise sexually assaulted
her.
Other testimony revealed that Norris had been charged
with sexual intercourse without consent over the Debbie Huck
incidents but that the charges had been reduced upon plea
bargain, and he pleaded guilty to the misdemeanor offense of
promotion of prostitution.
In accordance with State v. Just (Mont. 1979), 602 P.2d
957, 36 St.Rep. 1649, the State had given notice of its
intention to call Debbie Huck as a v?j-tnessin Norris' case.
The defendant had sought to prohibit the testimony by a
motion in limine, which the District Court first granted but
during the course of the trial, after hearing Ann's
testimony, reversed. itself and permitted the testimony.
Norris contends that the admission of Debbie Huck's
testimony was improper because it was not permissible under
Rule 404 (b), M.R.Evid., and that the Huck testimony does not
meet the four-factor test of State v. Just, supra, in that
the Huck testimony did. not describe similar crimes or acts,
did not reveal a common scheme or plan and its probative
value was clearly outweighed by the prejudice to the
defendant. The State answers that the Huck test.imony tends
to establish Norris' identity, his motive, scheme and modus
operandi; that the probative value of Huck's testimony
outweighs anv prejudice suffered by Norris.
At issue is the applicability of Rule 4 0 4 ( 3 ) (b),
"Evidence of other crimes, wrongs or acts is not
admissible to prove the character of a person in
order to show that he acted in conformity
therewith. It may, however, be admissible for
other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident."
Undeniably there are similarities between the Hanson and
the Huck incidents. Hanson was lured by the defendant to
ba-bysit; Huck also came as a prospective babysitter. Each of
the acts involving the girls took place at a motel. Hanson
was forced to drink whiskey during her occurrence; Huck was
not involved in alcohol or d-rugs in the first incident, but
was forced to take cocaine injections in the second incident.
Norris told Hanson he would give her money if she needed it;
he offered to pay Huck $250 for the first incident, and lured
her back to the motel a second time on the promise of paying
her the $250. There are dissimilarities, it is true, in the
kinds of acts that Norris practiced upon the girls when they
had come under his power. Those dissimilarities do not
occlude the apparent practice of Norris, with the
acquiescence of or at least without objection from I.,ynn,an
admitted. prostitute, to lure young women to his motel-
apartment to ply them with alcohol. or drugs and thereby
accomplish his unlawful purposes upon them. Clearly in
Montana, evidence of other crimes is admissible when proof is
shown of similarity, nearness of time, identity, and tendency
to establish a common scheme or plan of the crime charged.
State v. Just, supra; State v. Jenson (1969), 153 Mont. 233,
455 P.2d 63; State v. Tully (1960), 148 Mont. 166, 418 P.2d
549.
REBUTTAL TESTIMONY
In the State's case on rebuttal, Leonard Lamping was
permitted by the District Court to testify that he had been
confined in a ja.i.1 cell in Yellowstone County with Robert
Norris when Norris was subjected to the criminal charges
concerning Debbie Huck. Here again, the District Court had
originally granted Norris' motion in limine as to Lamping,
but reversed itself to allow the testimony d.uring State's
rebuttal.
Lamping's testimony related to statements of Norris
which included descriptions of how Norris' wife would help
Norris lure young women into the business of prostitution,
descriptions of the use of drugs by Norris during the process
of "turning out" prostitutes, and a claim by Norris that he
had "disposed" of a young girl who attempted to have Norris
prosecuted.
Norris contends that the Lamping testimony was improper
rebuttal evidence, that Lamping was a known "snitch,"
untrustworthy, and testifying for his own gain as a criminal
defendant. Moreover, Norris claims that the trial court did
not determine whether there were circumstantial guaranties of
trustworthiness in Lamping's statements.
During the State's cross-examination of Lynn Norris, in
the defendant's case-in-chief, the foil-owing occurred:
"Q. So he doesn't make you go out i.n the street?
A. No, he doesn't.
"Q. He's never made you go out and work the
street? A. He never made me do nothing.
"Q. Does he make other girls go out and work the
streets? A. No.
"Q. I'm sure he was. Now when you were told that
Bobby raped Annie you've testified that you said,
'You've got to be kidding.' Were you surprised?
A. Was I surprised?
"Q. Yeah? A. I didn't believe it.
"Q. Why not? A. b h not?
7y
"Q. Yeah? A. 'Cause I know my husband. ' Okay?
"Q. And .... A. I don't think he is capable of
3
raping anybody. To put it bluntly."
Following the above testimony, the State moved t.he court
to reverse its ruling on the motion in limine with respect to
Lamping. The State wanted. rebut the testimony Lynn
Norris, who had claimed the defendant had never forced anyone
to be a prostitute or to make money for him. On that motion,
the court allowed the testimony of Lamping.
The testimony from Lynn Norri-s in her cross-examina-tion
by the State in defendant's case-in-chief that her husband
had. never made her or other women "work the streets" came in
without objection. That testimony raised an immediate issue
as to the habitual routine of Norris, and tended to discredit
the other testimony in the record that Norrj-s had pleaded
guilty to the misdemeanor charge of promotion of
prostitution. The State was clearly entitled to rebut
through Lamping the t.estimony of Lynn Norris.
The argument on appeal with respect to Lamping's
testimony has taken a curious turn. When Lynn Norris
testified that she did not think Norris was "capable of
raping anybody. To put it bluntly," defense counsel objected
on the ground that he had not made the character of Norris an
issue in his case-in-chief. The questions stopped at that
point. Norris contends on appeal that the sole purpose of
the Lamping testimony was to rebut the statement by Lynn
Norris that her husband was incapable of raping anybody. We
are uncertain as to whether the statement made by Lynn
respecting her husband meant it was not in his character to
rape anybody, or whether she meant that he lacked the
virility to rape anybody. If the former, of course the
question would arise, as Norris contends, as to whether she
was improperly led by the State to put Norris' character in
issue. If, however, she meant the latter, then of course,
her testimony constituted a rebuttable fact.
At any rate, we find no error in the admission of
Lampins's testimony. Moreover, the District Court allowed
the question of S;ampinqsl credibility to be decided by the
iury. Defendant was permitted to call witnesses who
establish that Lamping was a known "snitch;" that another
person in the county jail was considered to be the person who
performed the acts of which Lamping accused Norris; and that
Lamping was under indictment at the time he agreed to give
the testimony respecting Norris. The jury had ample
opportunity to consider Lamping's credibility.
LIMITED CROSS-EXAMINATION
With respect to Debbie Huck's testimony, Norris contends
that the court improperly limited his cross-examination of
her. Defense counsel proposed to the court that he wanted to
establish that when Debbie returned to Norris' motel
apartment, she wanted the $250 for the purpose of getting an
abortion, her second, and to establish that the abortion was
necessary through her intimacy with a person not the
defendant Norris. The District Court, in considering the
provisions of section 45-5-503(5), MCA, and Rule 608 (b),
M.R.Evid., determined that the extension of such
cross-examination might turn the trial into one involving
Debbie Huck instead of Ann Hanson.
Norris contends that he was not allowed full
cross-examination as to Huck engaging in sex in return for
money or drugs; that the true reason for her presence at the
Norris residence was with respect to the second abortion; and
that he was precluded from showing that her appearance at
Norris' motel involved no plan, motive, or design similar to
the Hanson case.
Section 45-5-503(5), MCA, limits evidence concerning the
sexual conduct of the victim. It does not by its terms apply
to the sexual conduct of a witness. Rule 608, M.R.Evid.,
does, however, pr0vid.e with respect to a witness that
"specific instances of the conduct of a witness, for the
purpose of attacking or supporting his credibility, may not
be proved by extrinsic evidence."
The District Court permitted Norris to show that Debbie
Huck had returned to the motel the second time for the
purpose of obtaining $250, and that she wanted it for an
abortion. Further than that, the court limited the
cross-examination. In making its ruling, the District Court
concluded that the purpose of admitting Debbie Huck's
testimony in the first instance was to show a common plan,
scheme or design on the part of Morris in luring young women
to his motel. Prior to the introduction of Huck's testimony,
the court had given the cautionary instruction to which we
shall later advert. The District Court therefore ruled that
it would limit cross-examination of Debbie by Norris' counsel
to matters which would demonstrate Norris did not initiate
his contacts with Debbie through a common scheme, design or
plan.
We recognize that the District Court is given wide
latitude in determining what evidence is admissible during
the course of a trial. In this case, the District Court
wisely limited the cross-examination to those facts
concerning Debbie Huck that would indicate a common plan,
scheme or design in the manner in which he committed the
offense of Ann Hanson. Norris was seeking to attack the
credibility of Huck, not by opinion testimony of her
truthfulness, which would. be admissible under Rule 608,
M.R.Evid., but rather by extrinsic acts which Rule 608
forbids. The District Court was not in error in so ruling.
CAUTIONARY INSTRUCTION
Before all-owing the testimony of Debbie Huck, the
District Court instructed. the jury as follows:
"Ladies and Gentlemen of the ISury, evidence is
about to be introduced for the purpose of showing
the defendant committed crimes other than the ones
for which he is on trial. You may not consider
this evidence to prove that the defendant is a
person of bad chara.cter, or that he has a
disposition to commit crimes. You may onl-y
consider this evid.ence for the limited purposes of
providing a characteristic method, plan or scheme
used in the commission of the offense in this case,
or the identity of the person who comrnj-tted the
offense. You may also consider this evid.ence to
prove existence of purpose or knowledge, which is
an element of the crime charged. You may not
consider this evidence for any other purpose that
would expose the defendant to unjust double
punishment."
The instruction was based. on State v. Van Natta (~ont.
1982), 651 P.2d 57, 61, 39 St.Rep. 1771, except that the
District Court substituted the words "purpose or knowledge"
for the word "intent," found in Van Natta.
Norris objects to the instruction on the ground that it
is understandable only by lawyers and not laymen, a.nd that
the use of the word "characteristic" in the instruction
implies that any method, plan or scheme found by the jury
involves the character of the defendant.
We find no substance in the objections raised by Norris
and determine that the instruction proposed in Van Natta, as
modified by the District Court to substitute "purpose or
knowledge" for the word "intent" is a proper one in
circumstances where evidence of other crimes is about to be
admitted in a criminal case.
CONCLUSION
The judgment of conviction on the counts against Robert
Lee Norris are hereby affirmed.
Justice
We Concur:
a.w4L-&.@w*
Chief Justice