94-270
No. 94-270
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Respondent,
v.
KENNETH LEROY
WHITLOW,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli,
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender office, Helena, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Micheal S. Wellenstein,
Assistant
Attorney General, Helena, Montana; George H. Corn, Ravalli
County
Attorney, Hamilton, Montana
Submitted on Briefs: April 24, 1997
Decided: November 25, 1997
Filed:
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/94-270%20Opinion.htm (1 of 14)4/17/2007 4:30:27 PM
94-270
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
Kenneth Leroy Whitlow (Whitlow) appeals a jury verdict in the District Court
for
the Twenty-First Judicial District, Ravalli County, finding him guilty of aggravated
kidnaping and sexual intercourse without consent involving a six-year-old girl. We
affirm.
We address the following issues on appeal:
1. Whether the District Court abused its discretion in admitting other crimes
evidence.
2. Whether the District Court abused its discretion in refusing to strike
Dr.
Baxter's opinion testimony regarding the victim's credibility.
3. Whether the District Court abused its discretion in refusing to allow
Whitlow
to admit the entire pretrial interview of Dr. Starr.
4. Whether the prosecutor's comments during closing argument constituted
prosecutorial misconduct.
5. Whether the District Court abused its discretion in denying Whitlow's
motion
for a new trial.
Factual and Procedural Background
On July 8, 1993, Whitlow brought a six-year-old girl (A.J.) into the emergency
room of the Marcus Daly Memorial Hospital in Hamilton. He claimed that he had been
fishing at Skalkaho Creek when A.J. approached him and told him that she had been
raped and that she needed a doctor. At the hospital, Whitlow informed the attending
physician that he had a prior record of sexual assault and that he was afraid that
he would
be blamed for hurting A.J.
A.J. told the doctor that she rode her bicycle to the Pinesdale store to buy
some
candy and that while she was on her way home, someone picked her up, put her in
their
car, drove her into the woods and penetrated her vagina with their finger. She
originally
described her assailant as a younger woman with brown hair, green eyes and red
fingernails, who wore long pants and sandals, and who drove a dark blue car and
smoked
cigarettes. A.J. claimed that she was able to run away from her assailant and that
she
then came upon Whitlow who brought her to the hospital. A medical examination
revealed recent injury and trauma to A.J.'s vaginal area.
The county sheriff and a detective jointly interviewed A.J. at the hospital.
She told
them that her abductor had been a woman and that the man she found fishing in the
woods brought her to the hospital. After the sheriff repeatedly stated that women
did not
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/94-270%20Opinion.htm (2 of 14)4/17/2007 4:30:27 PM
94-270
usually commit such crimes, A.J. began referring to her assailant as a man. A.J.
continued to claim in her interviews with law enforcement officers that two separate
people were involved, the person who assaulted her and the fisherman. A.J.'s mother
later testified that the day after the assault, A.J. had admitted to her that
Whitlow was her
assailant. However, it was not until several months after Whitlow had been charged
with
the crime that A.J. divulged this information to law enforcement officers. A.J.
testified
at trial that Whitlow had a knife and that he had threatened to kill her.
On the day of the assault, Whitlow was taken to the sheriff's office for
questioning
and subsequently arrested. As Whitlow was being booked into the Ravalli County jail,
the jailer noticed traces of blood on his hands. The jailer took scrapings from
underneath
Whitlow's fingernails and swabbed his fingers. The fingernail scrapings and blood
taken
from the middle finger of Whitlow's right hand were examined by means of DNA testing
and determined to have DNA from both Whitlow and A.J.
A.J.'s clothing was also tested. A red nylon fiber, consistent with the
upholstery
found in Whitlow's car, was located on the inside of A.J.'s underwear. A hair found
woven into the fabric of the underwear was consistent with hair taken from Whitlow's
arm.
On August 18, 1993, the State charged Whitlow by Information with the offenses
of aggravated kidnaping, in violation of õ 45-5-303, MCA, and sexual intercourse
without
consent, in violation of õ 45-5-503, MCA. Prior to trial, the State notified
Whitlow of
its intent to introduce evidence of other crimes. The other crimes the State
intended to
introduce included Whitlow's 1985 convictions in Alaska for sexually assaulting his
daughter and for tampering with a witness and the uncharged sexual fondling of his
stepdaughter which occurred from 1991 through mid-1993. Over objection by the
defense, the District Court permitted the State to introduce evidence of the 1985
conviction for sexual assault.
Whitlow was convicted by a jury on both counts. He was sentenced to 40 years
for the crime of sexual intercourse without consent, 10 years for the crime of
aggravated
kidnaping, and 10 years for the use of a weapon during the crimes. The District
Court,
finding Whitlow to be a persistent felony offender, enhanced the aggravated kidnaping
sentence by 60 years. The court designated Whitlow a dangerous offender for purposes
of parole eligibility.
Whitlow moved for a new trial on the grounds that prosecutorial misconduct and
newly discovered evidence concerning the State's expert witness warranted a new
trial.
The District Court denied the motion and Whitlow appealed.
Issue 1.
Whether the District Court abused its discretion in admitting other
crimes evidence.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/94-270%20Opinion.htm (3 of 14)4/17/2007 4:30:27 PM
94-270
Over Whitlow's objection, the District Court permitted the State to introduce
evidence at trial of Whitlow's 1985 conviction in Alaska for sexually assaulting his
daughter. To that end, the State introduced a certified copy of the 1985 judgment.
In
addition, the Alaska prosecutor testified concerning the underlying acts giving rise
to the
charge against Whitlow and Whitlow's subsequent conviction. Whitlow contends that it
was error for the court to allow the introduction of this evidence as the State
failed to
satisfy both substantive and procedural requirements for the admission of other
crimes
evidence.
A district court has broad discretion to determine whether evidence is
relevant and
admissible. State v. Anderson (1996), 275 Mont. 344, 347, 912 P.2d 801, 803 (citing
State v. Pace (1995), 272 Mont. 464, 467, 901 P.2d 557, 559; State v. Keys (1993),
258
Mont. 311, 315, 852 P.2d 621, 623). Absent a showing of an abuse of that discretion,
a district court's determination will not be overturned. Anderson, 912 P.2d at 803.
In State v. Matt (1991), 249 Mont. 136, 814 P.2d 52, we modified the four
requirements for introducing evidence of other crimes, wrongs or acts that we had
previously set forth in State v. Just (1979), 184 Mont. 262, 602 P.2d 957.
Following the
dictates of Rules 403 and 404(b), M.R.Evid., we established the following criteria:
(1) The other crimes, wrongs or acts must be similar.
(2) The other crimes, wrongs or acts must not be remote in time.
(3) The 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 with such character; but may be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
(4) Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, misleading of the jury, considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.
Matt, 814 P.2d at 56. These criteria have come to be known as the Modified Just
Rule.
Under the first prong of this rule, the other crime does not have to be
identical to
the charged conduct, only sufficiently similar. State v. Weldy (1995), 273 Mont.
68, 74,
902 P.2d 1, 5 (citing State v. Tecca (1986), 220 Mont. 168, 172, 714 P.2d 136, 138).
The Alaska indictment charged Whitlow with touching his daughter's genitals and
breasts
and with attempting to engage in penetration. The current charges are similar in
that they
include touching and penetration of A.J.'s genitals. We hold that Whitlow's prior
sexual
abuse of his daughter is sufficiently similar in nature to the sexual acts committed
against
A.J. to satisfy the first prong of the Modified Just Rule.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/94-270%20Opinion.htm (4 of 14)4/17/2007 4:30:27 PM
94-270
As to the second prong, Whitlow contends that his 1985 conviction for sexually
assaulting his daughter is too remote in time from the currently charged offense thus
necessitating exclusion of the other crime evidence. However, we have previously
stated
that remoteness of the prior crime affects its credibility, not its admissibility.
State v.
Ramstead (1990), 243 Mont. 162, 167, 793 P.2d 802, 805 (citing State v. Eiler (1988),
234 Mont. 38, 49, 762 P.2d 210, 217; State v. Doll (1985), 214 Mont. 390, 396, 692
P.2d 473, 476).
Whitlow was incarcerated from 1985 through 1989 and was not discharged from
parole until September 1990. In finding that the prior sexual assault was not too
remote
in time, the District Court relied on the fact that Whitlow did not have an
opportunity to
reoffend during the five-year period he was incarcerated or on parole. A lack of
opportunity makes the time between the prior act and the charged offense less
significant.
State v. Brooks (1993), 260 Mont. 79, 83, 857 P.2d 734, 736-37. Therefore, we hold
that the prior crime involving Whitlow's daughter was not too remote in time and thus
satisfies the second prong of the Modified Just Rule.
The third prong of the rule deals with the purposes for which the evidence is
offered. Whitlow contends that the State failed to show how the prior act
furthered any
of the purposes it offered as justification for admitting the other crimes evidence.
The State originally intended to offer into evidence the witness tampering
charge
and the uncharged fondling of Whitlow's stepdaughter as well as the 1985 conviction
for
assaulting his daughter. Thus, the written notices provided by the State included
purposes
specific to each of these offenses. The 1985 conviction for sexual assault was the
only
prior act evidence admitted at trial. In its notices, the State asserted that this
conviction
was admissible to show intent, identity and absence of mistake or accident. These
are
permissible purposes under the rule. Matt, 814 P.2d at 56.
Evidence of the prior sexual assault was admissible to prove that Whitlow was
not
the good Samaritan he claimed he was and that his intent was to assault A.J. and to
cover
up his actions. In addition, the other crime evidence was admissible to prove the
absence
of mistake or accident in that it was not mere happenstance that Whitlow was in the
area
when A.J. was assaulted. Finally, the other crime evidence was admissible to prove
Whitlow's identity as the individual who assaulted A.J. Therefore, we hold that the
prior
crime involving Whitlow's daughter was admissible for the purposes of showing intent,
identity, and absence of mistake or accident, thus satisfying the third prong of the
Modified Just Rule.
The final prong of the rule requires that the other crimes evidence be
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/94-270%20Opinion.htm (5 of 14)4/17/2007 4:30:27 PM
94-270
excluded if
the probative value of the evidence is substantially outweighed by unfair prejudice
to the
defendant. We have previously stated that it is inevitable that the introduction of
evidence of a prior crime will have some prejudicial effect on a defendant. Brooks,
857
P.2d at 737 (citing Eiler, 762 P.2d at 218). However, when the prior crime meets the
first three elements of the Modified Just Rule, those elements combine to give it
great
probative weight. Brooks, 857 P.2d at 737. In the instant case, since the evidence
of
other crimes has met the first three elements of the rule, the cumulative effect is
that the
probative value of the evidence outweighs any prejudice to Whitlow.
Furthermore, when Whitlow took A.J. to the hospital, he freely admitted to the
hospital staff that he had committed a prior sexual assault. Whitlow's statements
to the
hospital staff were admissible at trial under Rule 801(d)(2)(A), M.R.Evid., and he
raised
no objection to their introduction. Additionally, Whitlowþs claim of unfair
prejudice is
unpersuasive as Whitlow used his prior conviction to bolster his defense claiming
that,
because of his prior conviction for sexual assault, it would not make sense for him
to
take A.J. to the hospital if he had been the one that assaulted her. See State v.
Medina
(1990), 245 Mont. 25, 31-32, 798 P.2d 1032, 1036. Therefore, we hold that the
probative value of the other crimes evidence was not substantially outweighed by any
prejudicial effect, thus satisfying the fourth prong of the Modified Just Rule.
In addition to identifying the four substantive requirements for introducing
evidence of other crimes, Just established certain procedural protections that were
later
clarified in Matt. Whitlow contends that the State violated the first of these
protections
which provides:
Evidence of other crimes, wrongs or acts may not be received unless
there has been written notice to the defendant that such evidence is to be
introduced. The notice to the defendant shall specify the evidence of other
crimes, wrongs or acts to be admitted, and the specific Rule 404(b) purpose
or purposes for which it is to be admitted.
Matt, 814 P.2d at 56. Whitlow argues that the State failed to specify in its other
crimes
notice the purposes for which the other crimes evidence would be offered as required
by
State v. Croteau (1991), 248 Mont. 403, 812 P.2d 1251. Whitlow contends that the
State
used an impermissible "shotgun" approach in listing these purposes.
While it does appear that nearly all of the purposes for admitting other
crimes
evidence under Rule 404(b), M.R.Evid., are stated in the State's "Notice of Intent to
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/94-270%20Opinion.htm (6 of 14)4/17/2007 4:30:27 PM
94-270
Introduce Evidence of Other Crimes, Wrongs or Acts" and its "Amended Just Notice and
Response Brief in Support of Just Notice," the notices did sufficiently apprise the
defendant as to why the evidence was admissible under the purposes stated. Moreover,
while Croteau does stand for the proposition that the shotgun approach is
impermissible,
we held in State v. Steffes (1994), 269 Mont. 214, 226, 887 P.2d 1196, 1203-04, that
it is not impermissible to state more than one applicable purpose for the admission
of
other crimes evidence.
In Croteau, the notice that this Court labeled as an impermissible "shotgun"
approach was merely a recitation of the purposes listed in Rule 404(b). The notice
stated
that the evidence was being offered "for the purpose of showing defendant's
opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident in
committing the offenses charged." Croteau, 812 P.2d at 1254-55.
In the case before us, the State did far more than simply recite the purposes
listed
in Rule 404(b). In its written notices, the State explained how the facts
surrounding the
other crimes and the facts surrounding the current charges related to each specific
purpose. For example, the State's original notice stated in part:
In regards to the Defendant's conviction for sexual abuse of a minor,
the State asserts that this act is admissible under the theory that it tends
to
establish identity. Since the Defendant has advanced both a general denial
and an alibi defense, this evidence tends to identify the Defendant as the
person who committed the crime charged, since he has previously had such
contacts with a minor.
Similarly, the State's amended notice stated that
the Just material tends to establish that the Defendant has a predilection for
young girls and, hence, establishes motive. It also bears on his intent,
which it tends to show is to engage in sexual conduct with minor girls.
This is not at all similar to the "shotgun" approach that we held impermissible in
Croteau.
Therefore, we conclude that the State did satisfy both the substantive and procedural
requirements for the admission of the other crimes evidence as set forth in the
Modified
Just Rule.
Accordingly, we hold that the District Court did not abuse its discretion
when it
admitted evidence of Whitlow's other crimes.
Issue 2.
Whether the District Court abused its discretion in refusing to strike
Dr. Baxter's opinion testimony regarding the victim's credibility.
The State retained Dr. Sarah Baxter, a clinical psychologist, to conduct
diagnostic
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/94-270%20Opinion.htm (7 of 14)4/17/2007 4:30:27 PM
94-270
evaluations of A.J. Dr. Baxter met with A.J. eight times over a five-month period
for
a total of ten hours. At trial, Dr. Baxter testified regarding A.J.'s changing her
story
from that of being assaulted by a woman to that of being assaulted by Whitlow. Dr.
Baxter explained that child victims of trauma tend to misperceive important aspects
of the
traumatic event. She concluded that A.J. was a victim of trauma and that, in her
opinion,
A.J. did have a misperception. Dr. Baxter attributed A.J.'s different stories to her
increasing feeling of safety as she gradually realized that the threats made by her
assailant would not be carried out. Dr. Baxter testified that, in her opinion, A.J.
was
very credible.
Whitlow argues that the District Court should have stricken Dr. Baxter's
opinion
testimony regarding A.J.'s credibility. Whitlow contends that there was no
foundation
for this testimony because Dr. Baxter's conclusions were reached prior to the time A.
J.
changed her story. Whitlow also claims that Dr. Baxter failed to follow the standard
practice for experts in the field and that her testimony should have been stricken
on that
basis as well. The State contends that Whitlow failed to timely object to Dr.
Baxter's
testimony, thus he has waived appellate review of this issue.
In order to properly preserve an issue for appeal, a defendant must make a
timely
objection or motion to strike. State v. Stuit (1994), 268 Mont. 176, 182, 885 P.2d
1290,
1294 (citing Kizer v. Semitool, Inc. (1991), 251 Mont. 199, 207, 824 P.2d 229, 234).
For an objection to be timely, it must be made as soon as the grounds for the
objection
become apparent. Stuit, 885 P.2d at 1294. Dr. Baxter testified during the State's
case-
in-chief regarding A.J.'s credibility, however, Whitlow did not object until his
cross
examination of Dr. Baxter during the State's rebuttal.
Here, the timing of Whitlow's objection worked to his disadvantage since the
jury
was allowed to hear and, for some time prior to the objection, consider the disputed
testimony. Accordingly, to the extent Whitlow suffered prejudice because of the
timing
of his objection he, himself, was responsible for that prejudice. More importantly,
albeit
that it was untimely, Whitlow did preserve his claim of error at trial so as to
permit the
trial judge to either sustain the objection during cross-examination or to strike the
testimony and admonish the jury not to consider it. Accordingly, while Whitlow's
objection was not timely since it was not made as soon as the grounds for the
objection
became apparent, because this claim of error was preserved in the District Court and
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/94-270%20Opinion.htm (8 of 14)4/17/2007 4:30:27 PM
94-270
is
not being raised for the first time on appeal, we choose to address the merits of
this
issue.
The fact that Dr. Baxter did not meet with A.J. after A.J. changed her story
does
not mean that Dr. Baxterþs opinion lacked adequate foundation. At the most, it goes
to
the weight of the testimony and Whitlow did argue to the jury that it should give
less
weight to Dr. Baxter's opinion that A.J. was credible since Dr. Baxter did not meet
with
A.J. after A.J. changed her story. Furthermore, Dr. Baxter's opinion concerned A.
J.'s
overall credibility, not whether the final change in her story was truthful.
In State v. Scheffelman (1991), 250 Mont. 334, 820 P.2d 1293, we set forth
three
factors to determine whether an expert may testify to the credibility of a child
sexual
abuse victim after the child's credibility has been attacked. These factors are:
(1) the
expert must have extensive first-hand experience with sexually abused and non-
sexually
abused children; (2) the expert must have a thorough and up-to-date knowledge of the
professional literature on child sexual abuse; and (3) the expert must have
objectivity and
neutrality about individual cases as required of other experts. Scheffelman, 820
P.2d at
1298. At trial, Whitlow conceded that Dr. Baxter met the first two requirements of
Scheffelman. As to the third requirement, Dr. Baxter testified that her role was to
conduct a lengthy evaluation of A.J. and that, in itself, requires objectivity and
neutrality
as there is no attempt made to interact with the child. Whitlow argued, on the other
hand, that Dr. Baxter was A.J.'s therapist and as such she was not objective and
neutral.
However, contrary to Whitlow's contentions, Scheffelman did not hold that a therapist
lacks objectivity or neutrality. We hold that the foundational requirements of
Scheffelman were met in this case.
Whitlow, relying on State v. Henderson (1994), 265 Mont. 454, 877 P.2d 1013,
claims that Dr. Baxter failed to follow the standard practices of experts in the
field by
forming her opinion as to A.J.'s credibility based on limited statements from A.J.
On
the contrary, Dr. Baxter did follow standard practice by reviewing as much
information
as possible and by meeting with A.J. on several occasions. She met with A.J. eight
times
over a five-month period. During the first meeting, Dr. Baxter conducted an
extensive
clinical interview. She also reviewed the sheriff's taped interviews of A.J., the
Pinesdale
Police Chief's notes from his interviews with A.J., the hospital reports and the
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/94-270%20Opinion.htm (9 of 14)4/17/2007 4:30:27 PM
94-270
investigatory material regarding the crime.
Accordingly, we hold that the District Court did not abuse its discretion in
refusing
to strike Dr. Baxter's opinion testimony regarding A.J.'s credibility.
Issue 3.
Whether the District Court abused its discretion in refusing to allow
Whitlow to admit the entire pretrial interview of Dr. Starr.
Dr. Judith Starr, an expert called by the defense, testified that there were
problems
with the interview process and that those problems may have led to false accusations
against Whitlow. The prosecutor had previously conducted an interview of Dr. Starr
which, when transcribed, was 125 pages long. During cross examination, the State
asked
Dr. Starr about certain statements she had made in that interview. Whitlow asked the
court to require that the entire transcript be given to the jury because the State
was taking
Dr. Starr's statements out of context. The court denied Whitlow's request and
refused
to require admission of the entire transcript.
Whitlow contends that the District Court should have granted counsel's request
pursuant to Rule 106, M.R.Evid., which provides:
Remainder of or related acts, writings, or statements.
(a) When part of an act, declaration, conversation, writing or
recorded statement or series thereof is introduced by a party:
(1) an adverse party may require the introduction at that time of any
other part of such item or series thereof which ought in fairness to be
considered at that time; or
(2) an adverse party may inquire into or introduce any other part of
such item of evidence or series thereof.
(b) This rule does not limit the right of any party to cross-examine
or further develop as part of the case matters covered by this rule.
In denying Whitlow's request to require that the full transcript of the
interview be
given to the jury, the District Court stated that Whitlow could bring other relevant
portions of the interview to the jury's attention. On re-direct, however, Whitlow
did not
introduce any other portions of the interview.
Whitlow incorrectly claims that he had the right under Rule 106 to introduce
the
entire 125-page interview. The doctrine of completeness permits examination of the
balance or portions of the same document, correspondence, or conversation only where
such portions on balance are relevant and throw light upon the parts already
admitted or
bear on the same subject. State v. Campbell (1978), 178 Mont. 15, 19, 582 P.2d 783,
785 (citations omitted).
"Rule 106 does not mandate the inclusion of related evidence. The rationale behind
the
inclusion of supplementary evidence is that it is allowed if it is needed to make the
primary evidence understandable." Cline v. Durden (1990), 246 Mont. 154, 162, 803
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/94-270%20Opinion.htm (10 of 14)4/17/2007 4:30:27 PM
94-270
P.2d 1077, 1082 (citing State v. Sheriff (1980), 190 Mont. 131, 619 P.2d 181). Here,
Whitlow never showed which specific portions of the interview were relevant or how
they
might throw light upon those portions already introduced by the State.
Accordingly, we hold that the District Court did not abuse its discretion in
refusing
to allow Whitlow to admit the entire pretrial interview of Dr. Starr.
Issue 4.
Whether the prosecutor's comments during closing argument
constituted prosecutorial misconduct.
Dr. Starr testified that Dr. Ralph Underwager was a leading authority in the
field
of false accusations and that she relied on his expertise in forming her opinion.
In cross
examination, the prosecutor questioned Dr. Starr regarding an article in a Dutch
journal
that professed that Dr. Underwager supported pedophilia. When the State attempted to
introduce the article, defense counsel objected and the court denied the State's
request.
In closing arguments, the State, in its rebuttal, referred to defense counsel's
objection to
introducing the article:
I also want to go back, as far as blaming the prosecutor, and how we
took Dr. Starr's -- or Doctor Underwager's comments out of context.
Recall who it was that wanted to put the entire document with the whole
interview of him into evidence -- and remember who protested and kept that
from coming before you -- just so you could see the entire article.
Trial Transcript at 1468.
Whitlow contends that by this statement, the prosecutor engaged in misconduct
which denied Whitlow a fair trial. He asserts that the prosecutor insinuated that
Whitlow
was keeping vital information from the jury. The State asserts that these comments
were
in direct response to Whitlow's claim in his closing argument that the prosecutor had
taken Dr. Underwager's views out of context and had thereby misled the jury.
To rise to the level of prosecutorial misconduct, the conduct in question
must be
found to be improper or objectionable. See State v. Johnson (1988), 233 Mont. 473,
476-77, 760 P.2d 760, 762. We do not find that to be the case here. Whitlow's own
closing argument opened the door for the prosecutor's comments.
Furthermore, to be considered reversible error, the alleged prosecutorial
misconduct must constitute a denial of a defendant's substantial rights. State v.
Arlington
(1994), 265 Mont. 127, 150, 875 P.2d 307, 321 (citing State v. Nichols (1987), 225
Mont. 438, 448, 734 P.2d 170, 176). In the instant case, in view of the overwhelming
evidence against Whitlow, the prosecutor's comments were not so egregious as to
deprive
Whitlow of his right to a fair trial and due process.
Accordingly, we hold that the prosecutor's comments during closing argument
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/94-270%20Opinion.htm (11 of 14)4/17/2007 4:30:27 PM
94-270
did
not constitute prosecutorial misconduct and Whitlow was not deprived of his right
to a
fair trial
and due process.
Issue 5.
Whether the District Court abused its discretion in denying Whitlow's
motion for a new trial.
A decision to grant or deny a motion for a new trial, including a motion
based on
newly discovered evidence, lies within the sound discretion of the district court
and we
will not disturb that decision unless an abuse of discretion is shown. State v. Fina
(1995),
273 Mont. 171, 175, 902 P.2d 30, 33 (citing Matter of J.R.T. (1993), 258 Mont. 520,
522, 853 P.2d 710, 711).
Whitlow moved for a new trial on three grounds: (1) newly discovered
evidence;
(2) failure of the State to produce evidence favorable to the defense; and (3)
prosecutorial
misconduct. First, Whitlow argued that Dr. Baxter was A.J.'s therapist and as such
she
could not testify as to A.J.þs credibility. Whitlow claimed that evidence of Dr.
Baxter's
status as A.J.'s therapist was not discovered until after trial. Second, Whitlow
contended
that the prosecutor's withholding of this evidence regarding Dr. Baxter's status was
a
violation of the State's duty under Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215, to produce evidence favorable to the accused. Third, Whitlow
argued prosecutorial misconduct in that false testimony regarding the prior act was
introduced at trial.
The District Court denied the motion concluding that Whitlow failed to
satisfy the
six-part standard for granting a new trial based on newly discovered evidence as set
forth
in State v. Greeno (1959), 135 Mont. 580, 342 P.2d 1052. Additionally, the court
determined that even if Dr. Baxter's role was that of both evaluator and therapist,
her
testimony would nonetheless be admissible under State v. Scheffelman (1991), 250
Mont.
334, 820 P.2d 1293.
As noted by the District Court, this Court has consistently applied the
following
criteria in addressing motions for a new trial based on newly discovered evidence:
(1) That the evidence must have come to the knowledge of
the applicant since the trial; (2) that it was not through want
of diligence that it was not discovered earlier; (3) that it is so
material that it would probably produce a different result upon
another trial; (4) that it is not cumulative merely--that is, does
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/94-270%20Opinion.htm (12 of 14)4/17/2007 4:30:27 PM
94-270
not speak as to facts in relation to which there was evidence
at the trial; (5) that the application must be supported by the
affidavit of the witness whose evidence is alleged to have
been newly discovered, or its absence accounted for; and (6)
that the evidence must not be such as will only tend to
impeach the character or credit of a witness.
Greeno, 342 P.2d at 1055. Since the Greeno criteria are stated in the conjunctive,
each
one must be established before a defendant is entitled to a new trial on the basis
of newly
discovered evidence. Fina, 902 P.2d at 34.
Whitlow contends that after trial, he learned that Dr. Baxter received
$153.68 from
the Crime Victim's Unit for A.J.'s treatment. He argues that a psychologist who
performs as a therapist treating a victim may receive payment from the Crime Victim's
Unit, but a psychologist who performs as an evaluator is not entitled to be paid. He
maintains that the payment to Dr. Baxter proves that she was A.J.þs therapist and as
such
was not entitled to testify regarding A.J.þs credibility.
Whitlow has failed to satisfy three of the six criteria established in Greeno
for
granting a new trial based on newly discovered evidence. First, evidence of possible
payment to Dr. Baxter by the Crime Victim's Unit came to Whitlow during the trial.
Dr.
Baxter stated in cross examination that she had billed the Crime Victim's Unit.
Second, Whitlow failed to pursue this line of questioning. It was through
want of
diligence on Whitlowþs part that the actual payment to Dr. Baxter by the Crime
Victim's
Unit was not discovered earlier.
Third, the fact that Dr. Baxter received compensation from the Crime Victim's
Unit was not so material that it would have produced a different result at trial.
We have
stated elsewhere in this opinion that whether Dr. Baxter was referred to as an
evaluator
or a therapist made no difference in this case.
Whitlow also based his motion for a new trial on the contention that evidence
of
the payment to Dr. Baxter by the Crime Victim's Unit should have been produced prior
to trial and that failure to do so was a Brady violation. However, even assuming
this
information fell within the parameters of Brady (a question we do not decide), there
is
no indication that the State was aware prior to trial that Dr. Baxter had submitted
a claim
to the Crime Victim's Unit. "[T]he government's obligation to disclose exculpatory
or
impeachment information under Brady is limited to that information which is then
known
to the government." United States v. Morris (7th Cir. 1996), 80 F.3d 1151, 1169.
"Brady requires the prosecution to disclose to the defendant only evidence in the
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/94-270%20Opinion.htm (13 of 14)4/17/2007 4:30:27 PM
94-270
prosecution's possession." United States v. Jones (8th Cir. 1994), 34 F.3d 596,
599.
Finally, Whitlow contends that the Alaska prosecutor's testimony concerning
Whitlow's prior act was false and that the State's failure to correct the false
testimony
constituted prosecutorial misconduct. The Alaska prosecutor testified at trial that
the
underlying facts that gave rise to the Alaska sexual assault charge "involved genital
fondling, penetration and breasts as well." Whitlow objected to her statement and
moved
to strike claiming that the testimony was false as he had not been convicted of
penetration. The District Court overruled the objection.
The State did not elicit inaccurate information regarding the prior crimes
evidence.
The Alaska prosecutor was testifying to the facts underlying Whitlow's 1985
conviction
for sexually assaulting his daughter, not the actual charges in the indictment.
Whitlow
failed to
explain how this testimony was false or how it may have affected the outcome of the
trial.
Moreover, Whitlow could have corrected the misperception on cross examination but
made no attempt to do so. As we stated elsewhere in this opinion, to rise to the
level of
prosecutorial misconduct, the conduct in question must be found to be improper or
objectionable. See State v. Johnson (1988), 233 Mont. 473, 476-77, 760 P.2d 760,
762.
We do not find that to be the case here.
Accordingly, we hold that the District Court did not abuse its discretion in
denying
Whitlow's motion for a new trial.
Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/94-270%20Opinion.htm (14 of 14)4/17/2007 4:30:27 PM