No. 83-276
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTAIJA,
Plaintiff and Respondent,
-vs-
JAMES P. LIDDELL, JR.,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
W. Corbin Howard argued, Billings, Montana
For Respondent:
Ilon. Mike Greely, Attorney General, Helena, Montana
Jim Scheier, Asst. Atty. General, Helena, Montana
Harold Hanser, County Attorney, Billings, Montana
Charles A. Bradley argued, Deputy County Attorney,
Billings, Montana
Submitted: February 27, 1984
Decided : July 10, 1984
Filed:
--
Clerk
Mr. Chief J u s t i c e Frank I . Haswell d e l i v e r e d t h e Opinion of
t h e Court.
Defendant James L i d d e l l was c o n v i c t e d o f s e x u a l i n t e r -
c o u r s e w i t h o u t c o n s e n t f o l l o w i n g a j u r y t r i a l i-n t h e D i s t r i c t
C o u r t of Yell-owstone County. H e appeals from t h e judgment
entered therein. W e affirm.
Liddell claims that he and t h e v i c t i m had been ac-
q u a i n t e d f o r some t i m e . H e maintains t h a t p r i o r t o t h e n i g h t
i n q u e s t i o n s h e had a c c e p t e d l o n g d i s t a n c e c o l l e c t c a l l s from
him and had a g r e e d t o l e t him s t a y w i t h h e r t h e n i g h t o f t h e
incident. L i d d e l l a l s o s t a t e s t h a t he and t h e v i c t i m had
s e x u a l i n t e r c o u r s e on a p r i o r o c c a s i o n and t h a t s h e c o n s e n t e d
a g a i n t o s e x u a l i n t e r c o u r s e on t h e n i g h t i n q u e s t i o n . He
c l a i m s s h e l a t e r a c c u s e d him of r a p e o n l y b e c a u s e h e i n d i c a t -
e d he was n o t g o i n g t o l e a v e h i s g i r l f r i e n d f o r h e r .
The victim maintains that she was acquainted with
L i d d e l l b u t had n e v e r had s e x u a l i n t e r c o u r s e w i t h him p r i o r
t o t h e night i n question.
When L i d d e l l c a l l e d h e r p r i o r t o r e t u r n i n g t o B i l l i n g s
f o r a d o c t o r ' s a p p o i n t m e n t , s h e s t a t e d t h a t s h e i n v i t e d him
t o h e r home f o r t h e p u r p o s e of a s k i n g him i n p e r s o n t o l e a v e
her alone. She m a i n t a i n e d t h a t on p r e v i o u s o c c a s i o n s he had
e x p r e s s e d a n i n t e r e s t i n g e t t i n g t o know h e r and t h a t s h e was
not interested.
Subsequent to the telephone call, but prior to
L i d d e l l ' s a r r i v a l , t h e v i c t i m ' s empl-oyer spoke w i t h h e r and
s h e t o l d him what s h e p l a n n e d . He i n d i c a t e d t h a t p e r h a p s it
was n o t such a good i d e a t o have i n v i t e d L i d d e l l o v e r and
recommended t h a t s h e e i t h e r l e a v e o r p r e t e n d n o t t o b e a t
home. The v i c t i m followed h e r e m p l o y e r ' s a d v i c e and p r e t e n d -
ed not to be at home. However, Liddell called out that he
knew she was inside so she let him in.
She maintains that she and Liddell talked for some time
and that he attempted to kiss and hold her. She reminded him
that he had a girlfriend and asked him t o leave.
. Liddell
eventually became angry, pulled her into the bedroom and
raped her.
I
Liddell raises the following specifications of error:
1. Refusal to instruct the jury to consider the testi-
mony of the victim with caution;
2. Admitting evidence regarding the mental state of
the victim;
3. Permitting Marjene Tower to express her opinion
that the victim had been raped;
4. Improperly limiting cross-examination of the prose-
cution witnesses;
5. Permitting the prosecution to endorse an additional
expert witness on the day of trial;
6. Refusing to compel the prosecution to permit the
victim to he examined by a defense expert; and,
7. Permitting the prosecution to introduce evidence of
other crimes, wrongs or acts.
I1
The first specification of error is whether the Court
should have instructed the jury to examine the testimony of
the victim with caution.
Liddell's counsel offered, and the court refused, the
following instruction:
"You are instructed that a charge such as
that made against the Defendant in this
case is one which is easily made, and
once made, difficult to defend against,
even if the person accused is innocent.
Therefore, the law requires that you
examine the testimony of the female
person named in the information with
caution. "
The State offered the following instruction which wa.s
given :
"You are instructed that the charge of
Sexual Intercourse Without Consent (Felo-
ny) 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 consider, 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
in its consideration thereof."
Appellant maintains that the State's instruction was
inadequate because it instructed the jury to carefully con-
sider all testimony as opposed to his proposed. instruction
which required special examination of only the victim's
testimony.
Liddell contends that under the holding of State v.
Smith (Mont. 1980) , 609 P.2d 696, 37 St.Rep. 583, a court is
required. to give the cautionary instruction that the charge
is easily made and difficult to defend against when "[tlhe
evidence clearly meets the standard of private malice, desire
for revenge and absence of corroboration on the critical
matters of consent . . ."
The instruction offered by the defense in Smith, but
refused by the court, is as follows:
"You are instructed that in considering
the evidence herein you should consider
that the crime of sexual intercourse
without consent is one that is easy to
charge and difficult to refute."
The instruction given to the jury by the court. in Smith
stated:
"While it is true that a conviction of
rape depends upon the credibility of the
primary witnesses, the accuser and the
accused, a conviction of sexual inter-
course without consent may be had based
solely on the uncorroborated testimony of
the prosecutrix."
This Court held it was reversible error not to give the
cautionary instruction that rape is easy to charge and diffi-
cult to refute under the circumstances described in Smith.
609 P.2d at 699. There is no holding in Smith that the jury
should also be instructed to vi.ew the testimony of the victim
alone with ca-ution.
Section 26-1-303, MCA, deals with instructions to
juries on how to evaluate evidence. It states, in part, as
follows:
". .
. The jury is to be instructed by
the court on all proper occasions that:
" (1) their power of judging the effect
of evidence is not arbitrary but to be
exercised with legal discretion and in
subordina.tion to the rules of evid-ence;
" (2) they are not bound to decide in
conformity with the declarations of any
number of witnesses which do not produce
conviction in their minds, against a less
number or against a presumption or other
evidence satisfying their minds;
"(3) a witness false in one part of his
testimony is to be distrusted in others;
" ( 4 ) the testimony of a person legally
accountable for the acts of the accused
ought to be viewed with di.strust;
"(5) if weaker and less satisfactory
evidence is offered and it appears that
it is within the power of the party to
offer stronger and more satisfactory
evidence, the evidence offered should. be
viewed with distrust."
There i s no p r o v i s i o n which s t a t e s t h a t t h e t e s t i m o n y
of a r a p e v i c t i m s h o u l d be viewed w i t h c a u t i o n n o r i s t h e r e
provision for the s t a t e m e n t t h a t t h e c h a r g e i s one e a s i l y
made and d i f f i c u l t t o d e f e n d a g a i n s t . I n t h i s c a s e , defen-
d a n t t e s t i f i e d t h a t t h e a c t was c o n s e n s u a l b u t when h e r e -
fused t o l e a v e h i s g i r l f r i e n d f o r h e r , t h e v i c t i m g o t angry.
The i m p l i c a t i o n i s t h a t s h e was m o t i v a t e d by m a l i c e t o a l l e g e
a f a l s e charge.
The v i c t i m t o l d a d i f f e r e n t s t o r y . Experts w e r e c a l l e d
and t e s t i f i e d a s t o t h e i r o p i n i o n s . The c h a r g e was f u l l y
e x p l o r e d by t h e p r o s e c u t o r and d e f e n s e c o u n s e l , and t h e c a s e
was submitted to the jury. A cautionary i n s t r u c t i o n was
given b u t n o t t h e s p e c i f i c cautionary i n s t r u c t i o n requested
by t h e d e f e n d a n t . W e f i n d t h a t both t h e i n s t r u c t i o n offered
b u t r e f u s e d and t h e one g i v e n were i n e r r o r . To s t a t e i n a
j u r y i n s t r u c t i o n t h a t t h e c h a r g e i s e a s i l y made b u t d i f f i c u l t
to defend against is a comment on the e v i d e n c e which is
required. neither by law nor public policy and therefore
improper. I n a d d i t i o n , i t would have f u r t h e r compounded t h e
e r r o r f o r t h e c o u r t t o have f u r t h e r i n s t r u c t e d t h e j u r y t h a t
t h e t e s t i m o n y of t h e v i c t i m s h o u l d h e c o n s i d e r e d w i t h more
c a u t i o n t h a n any o t h e r w i t n e s s . However, t h i s t h e D i s t r i c t
C o u r t r e f u s e d t o do.
While t h e c o u r t d i d i m p r o p e r l y i n s t r u c t t h e j u r y t h a t
t h e c h a r g e was e a s i l y made and d i f f i c u l t t o defend a g a i n s t ,
t h e e r r o r was p r e j u d i c i a l t o t h e S t a t e and n o t t o t h e d e f e n -
dant. T h e r e f o r e , we f i n d no r e a s o n t o d i s t u r b t h e v e r d i c t
based on t h i s s p e c i f i c a t i o n of e r r o r , and w e hereby s p e c i f i -
c a l l y o v e r r u l e S t a t e v. Smith, s u p r a . W e h o l d t h a t a cau-
t i o n a r y i n s t r u c t i o n t h a t r a p e i s e a s y t o a l l e g e and d i f f i c u l t
t o d e f e n d a g a i n s t , o r one c a l l i n g f o r i n s t r u c t i n g t h e j u r y t o
view the victim's testimony with caution is an improper and
unwarranted comment on the evidence and is not required under
the law or by reason of public policy. Therefore, such an
instruction should not be given.
I11
The second specification of error is whether the Dis-
trict Court erred in admitting evidence regarding the mental
state of the victim. This is closely related to the third
specification of error as to whether Mariene Tower, a psychi-
atric nurse, should have been permitted to testify that the
disabilities suffered by the victim, including acute depres-
sion and severe headaches requiring hospitalization, were
caused by the rape.
Defense counsel argues that such testimony was improper
because such opinion testimony was not a proper subject for
expert testimony under Rule 702, Mont.R.Evid.; the factual
and opinion testimony was highly prejud.icia1 to the defen-
dant; the testimony caused confusion and misled the jury; the
evidence was not a proper subject for expert opinion; and
Tower was not qualified to render an opinion as to Liddell's
state of mind.
The victim, Dr. Van Dyk, Cheri Frankel, a psychological
counselor, and Marjene Tower, a psychiatric nurse, all testi-
fied that the victim suffered from severe headaches which
required hospitalization. There was further testimony that
rape caused this post-traumatic stress syndrome in the
victim.
Defense counsel argues that evidence regarding
rape-trauma syndrome is not admissible because it is evidence
regarding the mental state of the victim. Defense argues
that the Minnesota courts do not allow evidence of
rape-trauma syndrome and Montana also should not allow such
testimony. The State, however, argues that Minnesota is the
only state that has ruled on the admissi-on of ra.pe-trauma
syndrome and not allowed it. A number of jurisdictions have
permitted such testimony including Kansas (State v. Marks
(Kan. 1982), 647 P.2d 1292), Iowa (State v. Miller (19621,
254 Iowa 545, 117 M.W.2d 447), Michigan (People v. LaPorte
. a
%
(1981), 103 Mich. App. 444, 303 N.W.2d ,
W ) and Washington
(State v. Ring (1959), 54 Wash.2d 250, 339 P.2d 461).
A particularly good discussion of rape-trauma syndrome
is found in the Kansas case, State v. Marks, supra. In that
case the court held:
"The identification of rape trauma syn-
drome is a relatively new psychiatric
development. Even so, if the presence cf
rape trauma syndrome is detectable and
reliable as evidence that a forcible
assault did take place, it is relevant
when a defendant argues the vj-ctim con-
sented to sexual intercourse. As such an
expert's opinion does not invade the
province of the jury. It is merely
offered as any other evidence, with the
expert subiect to cross-examination and
the jury left to determine its weight."
State v. Marks, 647 P.2d at 1299.
We agree with the holding of the Kansas court.
Pyschiatric testimony is admissible to aid a jury in deter-
mining whether there was consent to engage in a sexual act
which all parties agree occurred. It remains up to the jury
to determine whether the evidence is credible.
Such evidence is admissible under Rule 702,
Mont. R. Evid. That rule states, " [i]f scientific, technical,
or other specialized knowledge will assist the trier of fact
to understand the evidence - - determine - - -
or to a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in the
form of an opinion or otherwise." (Emphasis added.) In this
case the fact in issue is whether there was consent to sexual
intercourse. The evidence of experts regarding the presence
of rape-trauma syndrome may assist the jury in resolving that
question. Therefore, the evidence is admissible.
The testimony is not, as defense counsel maintains,
improper because it is testimony dealing with the mental
state of the victim. The testimony does not purport to show
the victim's mental state at the time of the event. It
reflects the manifestations of distress which may be exhibit-
ed by a person who has been subjected to severe trauma. Rape
is only one such severe trauma which can cause the symptoms.
We believe that skilled direct and cross-examination of an
expert in this area can assist the jury in determining wheth-
er, in fact, the victim consented to the act.
We do not agree with defense counsel that such evidence
confused and misled the jury, nor that such testimony could
potentially confuse and mislead. Any relevant evidence which
tends to support the existence or nonexistence of a fact in
issue can only aid the jury determination, not mislead and
confuse.
There is, however, no doubt, as defense counsel argues,
that the opinion evidence was prejudicial to defendant.
Evidence which supports the State's case generally is. We
cannot require the State to meet its burden of proof and yet
not allow the State to offer evidence which is prejudicial to
the defendant. Such a ruling would both be absurd and also
paralyze the criminal justice system in this state.
Defense counsel also argues that to allow testimony of
the rape-trauma syndrome experienced by the victim was
improper because it in effect allowed testimony of the defen-
dant's state of mind at the time of the a.ct. F e hold tha.t
J
testimony regarding the victim's disabilities is admissible
and does not reflect on the defendant's state of mind.
Given all of the above factors, we find that expert
testimony regarding the post-traumatic stress disorder known
as rape-trauma syndrome is admissible and that the District
Court did not err in allowing such testimony.
IV
The next specification of error deals with the question
of whether the District Court improperly limited cross-exami-
nation of the victim and expert witnesses Ms. Frankel and Dr.
Van Dyke. We find no merit in this argument.
Defense counsel contends that the symptoms suffered by
the victim arose not after the incident but after she was
confronted by a co-worker and questioned. The defense sought
to prove that the incident at work and not the sexual attack
caused her disability. The record is clear that the victim
reported that she suffered from the post-trauma symptoms
before the incident occurred at work. It also shows that the
questioning by the co-worker could have intensified her
condition. But given the testimony that the symptoms were
reported before the incident with the co-worker, that inci-
dent was irrelevant in terms of the cause of the symptoms and
questioning along that line was properly limited. We find,
therefore, that there was no improper limiting of
cross-examination.
v
The next specification of error deals with whether the
District Court erred in a-llowinq the prosecution to endorse
an additional ~rj.tness,Ms. Frankel, on the day of trial.
The record shows Ms. Frankel assisted Dr. Van Dyk in
his treatment of the victim. Dr. Van Dyk was identified to
the defense as a prosecution witness. The defense was aware
of Dr. Van Dyk's need for Ms. Frankel's assistance in treat-
ing the victim due to the lack of rapport between Van Dyk and
the victim. The defense knew of Ms. Frankel's role in coun-
seling the victim and had interviewed her prior to trial. As
expected, Ms. Frankel's testimony dealt with her role jn
.
counseling the victim and the post-trauma stress syndrome
suffered by the victim.
If defense counsel believed that her endorsement left
him inadequately prepared to conduct the defense, he should
have petitioned the court for a continuance. This he failed
to do.
It is discretionary with the District Court to allow
additional witnesses, State v. McKenzie (Mont. 1980), 608
P.2d 428, 37 St.Rep. 325, and under the circumstances we find
no error in endorsing Ms. Frankel as an additional witness on
the day of the trial.
VI
The next specification of error is whether the District
Court erred by refusing to compel the victim to be examined
by defendant's psychologist.
There is no legal authority for such a. procedure. Rule
35(a), M.R.Civ.P., allows for a mental or physical examina-
tion by a physician when the mental or physcial condition of
a party is in controversy. The victim in this matter is a
witness, not a party to this action. The issue in this
matter was whether the sexual intercourse was effected
against her will and without her consent.
The rape-trauma syndrome evidence was admissible as
evidence relevant to the question of whether there had or had
not been intercourse without the victim's consent. The act
was at issue, not the victim's state of mind. Since the
victim was a witness and not a party, and since her state of
mind was not at issue, it was proper for the District Court
to refuse to order her examination by defendant's psycholo-
gist. To hold otherwise would permit the defense to try the
victim of the crime and divert the jury's attention from the
primary issue--the guilt or innocence of the defend-ant.
VII
The final issue is whether the District Court erred in
permitting the prosecution to introduce evidence of other
crimes, wrongs or acts.
The defense maintains that the State's examination
regard-ing Liddell's reason for being in Billings allowed the
State to imply to the jury that defendant is a violent man.
Such is simply not the case. The transcript shows that
Liddell was asked how he received. his wrist injury:
"A. L fell through a plate window.
"a. What precipitated your falling
through a plate window?
"A. This guy jumped on me.
"Q. You were in a fight?
"A. 7: wouldn't call it a fight. Self-
defense.
"Q. Where did this occur?
"A.. Kon's Supermarket. on the south side.
"Q. Did [the victim] know you had re-
ceived this injury in this fashion?
"A. No, she did not."
The testimony hardly creates the impression of a vio-
lent man. It was simply a small portion of the questioning
designed to elicit Liddell's reason for being in Billings on
the night in question. The testi-monywas merely an insignif-
icant portion of the recounting of events and the error, if
any, is harmless.
Defense counsel also maintains that the prosecution
introduced evidence of Liddell smoking half a marijuana
cigarette at the victim's residence shortly prior to the act
charged. Defense maintains this was an impermissible intro-
duction of evidence of other crimes. The State responds that
the victim departed from the established time sequence in her
testimony a.nd "blurted out" the marijuana testimony. This
response is verified by the transcript. Further, the State
did not pursue that topic in depth in direct examination nor
did it attempt to introduce the remains of the marijuana
cigarette recovered from Liddell at the time of arrest. In
add.ition, the District Court gave the following cautionary
instruction:
"You are instructed that the allegation
of marijuana used by the defendant within
the testimony of the prosecutrix has not
been proved and should not be considered
by you in arriving at your decision in
this case."
Under the above circumstances, we find that the evi-
dence of the marijuana cigarette was harmless, and defendant
was not prejudiced by this incidental reference in the vie-
tim's testimony regarding the events of the evening.
3~&a.wq
Chief Jffstice
We concur:
Justices
Mr. Justice Frank B. Morrison, Jr. respectfully dissents as
follows :
Expert testimony regarding "post rape syndrome" is
troublesome. Such testimony seems to be a comment on the
credibility of another witness. If it is to be allowed then
full opportunity must be accorded the defendant to rebut the
testimony. This would necessarily involve permitting a
doctor or other qualified person to examine the alleged
victim and provide the same opportunity for testimony as is
given to the prosecution.
Therefore, I would hold that it was error to deny the
defendant an opportunity for an expert examination of the
alleged victim, with an opportunity to rebut the testimony
Xr. Justice Daniel J. Shea:
I join in the dissent of Mr. Justice Norrison.
Justice John C. Sheehy, concurring and dissenting:
I concur in the result in this case, and with what
Justice Morrison says in his special concurrence, but dissent
from what the majority holds on two issues:
1. The Smith Instruction.
The majority overreaches the issues in summaril-y setting
aside our approval of the instruction in State v. Smith
(1980), - Mont . ,
- 609 P.2d 696. The state is not
appealing the instruction, and the overruling of Smith
disregards possible cases of prosecutrix malice, to which
Smith applied.
2. Cross-examination - - psychiatrist - - nurse.
of the and the
I think the District Court unfairly limited the
cross-examination of the states' psychiatric witness and of
Marjene Tower, the nurse. Post-rape trauma syndrome is far
from scientific exactitude. The majority permits such
evidence on the basis that "skill-ed direct a.nd
cross-examination" will limit the possibilities for error.
Under Rule 705, Montana Rules of Evidence, an expert may be
cross-examined on the basis of his opinion, including
admissible and non-admissible grounds. The District Court
did not permit the kind of full cross-examination that the
post-rape trauma syndrome demanded in this case.
I concur in the result here because the Smith
instruction ruling does not affect Liddell's case on appeal-,
and because I find the jury decided the issue on a test of
credibility between him and the prosecutrix which was not
substantially aided by the testimony of the psychiatrist and
the nurse.
-7