State v. Anderson, 83-442

Decision Date15 August 1984
Docket NumberNo. 83-442,83-442
PartiesSTATE of Montana, Plaintiff and Respondent, v. Roger L. ANDERSON, Defendant and Appellant.
CourtMontana Supreme Court

Jackson Law Firm; Gregory Jackson argued, Helena, for defendant and appellant.

Mike Greely, Atty. Gen., Clay R. Smith argued, Asst. Atty. Gen., Mike McGrath argued, County Atty., Helena, for plaintiff and respondent.

GULBRANDSON, Justice.

Defendant Roger Anderson appeals from his conviction in the District Court of the First Judicial District, Lewis and Clark County, on three counts of sexual assault. We affirm.

On March 22, 1983, Roger Anderson was charged by information with three sexual offenses: sexual intercourse without consent, attempted sexual intercourse without consent and sexual assault. The first two charges were subsequently amended to sexual assault. All of the charges involve three minor children: M., the defendant's step-daughter, age ten at the time of trial; R.F., a friend of M., age thirteen at time of trial; and L.M., another friend of M., age nine at the time of trial.

R.F. and L.M. testified during the State's case-in-chief concerning sexual assaults by the defendant. M., who made statements to authorities incriminating the defendant, changed her story prior to trial and testified during the defendant's case-in-chief, denying that sexual assaults had been committed by defendant on her or the other victims. However, the State produced testimony to confirm all of the charges of sexual assault. The jury also heard expert testimony on the subject of sexual offenders and child sex crime.

The jury returned a guilty verdict on all three counts. Defendant subsequently moved for a new trial, but the motion was denied. The court eventually sentenced defendant to three twenty-year concurrent sentences at the Montana State Prison, suspended fifteen years of each sentence, and designated defendant as nondangerous for purposes of parole eligibility. From his conviction and denial of his motion for a new trial, defendant appeals.

The following issues are presented on appeal:

(1) Whether the District Court erred in tendering a copy of the defendant's trial brief to the State prior to trial and, if so, whether any substantial right of the defendant was prejudiced?

(2) Whether the District Court erred in granting the State's motion in limine to exclude evidence concerning a prior sexual assault allegation by prosecution witness R.F. against an individual other than the defendant?

(3) Whether the District Court abused its discretion by excluding evidence of the State's amendments to the original information, although it took judicial notice of the same?

(4) Whether the District Court erred in permitting testimony by a prosecution witness concerning prior statements by a complaining witness?

(5) Whether the District Court erred in refusing to permit defendant's request to examine a particular witness as a hostile or adverse witness?

(6) Whether the District Court erred by admitting rebuttal testimony concerning "prior wrongful acts" by the defendant?

(7) Whether the District Court erred in denying defendant's motion for a new trial on grounds of alleged jury misconduct and insufficient credible evidence to convict the defendant?

(8) Whether the District Court erred in refusing to give the Smith jury instruction, which provides that allegations of sexual crimes are "easily made but difficult to refute?"

WHETHER THE DISTRICT COURT ERRED IN TENDERING A COPY OF THE DEFENDANT'S TRIAL BRIEF TO THE STATE PRIOR TO TRIAL AND, IF SO, WHETHER ANY SUBSTANTIAL RIGHT OF THE DEFENDANT WAS PREJUDICED?

Defendant's trial brief, presented to the judge a few days before trial, outlines four arguments or theories to be advanced by defense counsel: (1) the introduction of testimony to establish defendant's "good character;" (2) evidence of wrongful motives on the part of R.F. to testify against the defendant, to wit: that she was attempting to "get back" at defendant, a police officer, for apprehending her for criminal activity on at least two occasions, and reporting another incident of her wrongful conduct to sheriffs' deputies; (3) introduction of evidence of the State's amendments to the original information to show the "instability" of prosecution witness testimony; and (4) introduction of evidence of a previous sexual crime charge made by R.F. against another man, a charge subsequently dismissed, to again establish wrongful motives by R.F. in complaining against defendant.

Upon receipt of the brief, the trial judge tendered a copy to the county attorney. Defense counsel learned that a copy had been delivered when the county attorney called him to obtain further information about statements made in the brief. Prior to the start of trial, defendant moved to dismiss the charges, arguing that release of the brief had unfairly permitted the State to rehabilitate its witnesses and revise its voir dire, cross-examination and rebuttal strategies. The court responded that defendant was never ordered to produce the trial brief, and that it had tendered a copy of the brief only to expedite the trial. The motion to dismiss charges was denied.

On appeal, defendant renews his initial arguments supporting dismissal of the charges, arguing that release of a copy of the brief to opposing counsel was in violation of the constitutional guarantee against self-incrimination and local court rules and customs pertaining to trial briefs.

The protections of the Fifth Amendment to the United States Constitution, made available to criminal defendants in state proceedings through the due process component of the Fourteenth Amendment, pertain only to compelled self-incrimination. Lefkowitz v. Cunningham (1977), 431 U.S. 801, 804-5, 97 S.Ct. 2132, 2135, 53 L.Ed.2d 1, 6; Malloy v. Hogan (1964), 378 U.S. 1, 8, 84 S.Ct. 1489, 1493-94, 12 L.Ed.2d 653, 659-60. Assuming, for the purpose of argument, that the contents of defendant's brief even raised the prospect of self-incrimination, defendant was under no compulsion to produce the information or arguments summarized in the trial brief.

Furthermore, nothing in the First Judicial District Court rule or custom on trial briefs affords defendant the kind of confidentiality sought after respecting the contents of his brief. The rule or custom requires only that a brief set forth counsel's theory of the case and the issues involved plus supporting authorities. Neither party need disclose in detail the nature of evidence to be offered. A brief need not be served on opposing counsel, but rule or custom does not prevent the District Court, in the exercise of its discretion, from forwarding a copy of the trial brief of one party to another after the brief is filed with the court.

Whether there exists any set of circumstances under which tender of a trial brief to an opposing party would be impermissible, other than the threat of compelled self-incrimination, is irrelevant here. The subject matter of defendant's trial brief was to be freely offered and elaborated upon at trial. Thus, defendant effectively waived any privileges which may have been involved with respect to the contents of the brief. Cf. State v. Hardy (1977), 293 N.C. 105, 235 S.E.2d 828, 841, (work product privilege waived when defendant or state seeks at trial to make testimonial use of the work product). Moreover, defendant suffered no substantial prejudice from disclosure of the brief. Prosecuting attorneys presumably would have moved in limine to exclude evidence of the amendments to the information and R.F.'s allegation of previous sexual assault even if they had not received the brief in advance of trial. The disclosure that defendant intended to adduce testimony about his "good character" and R.F.'s allegedly wrongful motives is likely innocuous, as there is no reasonable possibility that the trial court's tender of a copy of the brief might have contributed to the conviction. The most that can be said of the court's action is that it fairly facilitated the trial process by avoiding disruption of testimonial flow.

WHETHER THE DISTRICT COURT ERRED IN GRANTING THE STATE'S MOTION IN LIMINE TO EXCLUDE EVIDENCE CONCERNING A PRIOR SEXUAL ASSAULT ALLEGATION BY PROSECUTION WITNESS R.F. AGAINST AN INDIVIDUAL OTHER THAN THE DEFENDANT?

Defendant wished to produce evidence of a previously dismissed sexual assault charge involving R.F. as the complaining witness to demonstrate that she had a vengeful motive in bringing a similar charge against defendant. Prior to trial, the State moved to exclude this evidence and the court conducted a hearing to consider the State's motion.

The previous case, State v. Everitt Bratcher, concerned a charge that Bratcher had sexually assaulted R.F. on several occasions over the four-year period prior to 1980. The case was dismissed on motion of the prosecuting attorney in January, 1980. According to defendant Anderson's counsel, the charge against Bratcher was untrue, and counsel offered to produce Bratcher's attorney as a witness to support the claim that the charge was false. Bratcher's attorney would not only testify that his client had adamently denied the charge, but that it was his belief that the charge was motivated only by R.F.'s desire to obtain revenge for having been denied access to a play area by Bratcher. Defendant Anderson's counsel argued that independent medical testimony to be heard in the immediate case would at least confirm that R.F. had never experienced sexual intercourse. In summary, counsel maintained that cross-examination of R.F. on the history of the prior charge was justified as a test of R.F.'s credibility, and that there would be no attempt made to probe into R.F.'s general moral character.

The State sought to exclude introduction of this evidence on the grounds that the previous charge had been dismissed because...

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