State v. Bauer

• Decision Date: 03 July 1984
• Docket Number: No. 83-407,83-407
• Citation: 210 Mont. 298,41 St.Rep. 1066,683 P.2d 946
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Respondent, v. Chester R. BAUER, Defendant and Appellant.

Page 946

683 P.2d 946

210 Mont. 298

STATE of Montana, Plaintiff and Respondent, v. Chester R. BAUER, Defendant and Appellant.

No. 83-407.

Supreme Court of Montana.

Submitted Feb. 27, 1984.

Decided June 4, 1984.

Rehearing Denied July 3, 1984.

Dunlap and Caughlan, Butte, Deidre Caughlan argued, Butte, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Robert M. McCarthy, County Atty., Butte, Patrick Fleming argued, Chief Deputy County Atty., Butte, Ross Richardson argued, Deputy County Atty., Butte, for plaintiff and respondent.

GULBRANDSON, Justice.

Defendant Chester Bauer appeals from his convictions in the District Court of the Second Judicial District, Silver Bow County, on charges of sexual intercourse without consent and aggravated assault. We affirm.

On January 26, 1983, D.K. was forcibly raped at knife point in her Butte, Montana, home. The rapist, identified by D.K. as the defendant, Chester Bauer, had come to the home in the late afternoon inquiring as to whether D.K. and her husband wanted to sell their boat. Apparently Bauer had visited the couple about ten days earlier to inquire about the same boat. On the day of the rape, Bauer asked D.K., who was home with her children, for a piece of paper to write down information about the boat. She went to the kitchen, and he followed. When she turned toward him, Bauer brandished a knife. The children were ushered into their rooms, and Bauer took D.K. into her bedroom and raped her.

After the rape and Bauer's departure from the home, D.K. called the police. Detectives Dave Gertz and Tom Green arrived at the scene, seized all the bedding from the bed where the rape had taken place, and escorted D.K. to the hospital where the staff acquired pubic hair and blood samples and took vaginal swabs to secure semen samples. The samples were tested by serologist Julie Long.

In the meantime, detectives were seeking the whereabouts of the rapist. Within a week of the incident, the investigation began focusing on Chester Bauer. Detective Gertz approached Bauer on February 2 and asked him if he would agree to have a current photograph taken so that police could update their mugbooks. Bauer, who had had a previous encounter with the police, agreed. The police used the new photograph and an old one, taken in 1977, to construct two separate photographic lineups. Bauer's picture appeared in both line-ups, and his pictures were the only ones bearing the words "Police Dept. Butte, Montana."

D.K. was called in to see if she could identify her attacker from the line-ups. Her husband was asked to see if any of the "suspects" matched the description of the man who had come to the home asking about the boat. D.K. was unable to make a positive identification of her attacker, but showed an interest in both photographs of Bauer. The husband made a positive identification of Bauer as the man who had come to the home about ten days before the rape.

On February 22, Bauer voluntarily consented to appear in a physical line-up. According to Detective Gertz, the line-up consisted of six white males, all of whom had similar physical characteristics. No photograph of the line-up was taken because the police camera was unavailable. At the line-up, D.K. made an immediate positive identification of Bauer as the man who had raped her. During the trial, she again identified him as the rapist.

Bauer was charged with sexual intercourse without consent and aggravated assault, and was convicted of both crimes. A motion for new trial was denied. From the jury verdict and denial of the motion for new trial, Bauer appeals, raising four issues:

(1) Whether the photographic line-ups were "impermissibly suggestive" and gave rise to an "irreparable misidentification" at the subsequent physical line-up and at trial?

(2) Whether the expert testimony of serologist Julie Long was more prejudicial than probative and therefore should have been excluded?

(3) Whether the trial court erred by not striking Detective Gertz's testimony regarding Bauer's spontaneous remarks made at the time of his arrest?

(4) Whether a juror's failure during voir dire to disclose her family relationship to a Butte-Silver Bow jailor severely impaired Bauer's right to a fair and impartial jury?

Collateral facts relevant to each issue but not mentioned previously are set forth in the discussion below.

WHETHER THE PHOTOGRAPHIC LINE-UPS WERE "IMPERMISSIBLY SUGGESTIVE" AND GAVE RISE TO "IRREPARABLE MISIDENTIFICATION" AT THE SUBSEQUENT PHYSICAL LINE-UP AND AT TRIAL?

Prior to trial, the court granted Bauer's motion to exclude evidence of the attempt at photographic identification of Bauer by D.K. The court denied a similar motion to suppress evidence of the physical line-up conducted February 22 and also denied a motion to prevent any in-court identification of Bauer by D.K. or her husband. Bauer insists that denial of these latter motions by the court was erroneous because (1) the two photographic line-ups shown to D.K. tainted her recollection of her attacker so as to interfere with any subsequent identification; (2) the same arrays were so suggestive and conducive to irreparable misidentification that any identification would be inherently unreliable; (3) there is no reliable means of determining the fairness of the physical line-up; and (4) any in-court identification would have no source independent from the previous photographic and physical line-ups. In essence, Bauer argues that the identifications made at the physical line-up and during trial are tainted by previous attempts at identification.

This Court follows a two-pronged test when deciding the propriety of admitting evidence of an in-court identification and/or the results of some prior line-up:

"First, [whether] ... the identification procedure [was] impermissibly suggestive; and second, if so, [whether] ... under the totality of the circumstances [the procedure had] ... such a tendency to give rise to a substantial likelihood of irreparable misidentification that to allow the witness to make an in-court identification would violate due process. [Citations omitted.]" State v. Lara (1978), 179 Mont. 201, 205, 587 P.2d 930, 932.

See also State v. Herrera (1982), 197 Mont. 462, 466, 643 P.2d 588, 590.

Initially we decide whether the identification procedures utilized in the case were "impermissibly suggestive." With respect to the photographic arrays, we recognize that only defendant Bauer's photographs bear the inscription, "Police Dept., Butte, Montana." Nevertheless, the trial court was not convinced, and neither are we, that this fact alone amounts to impermissible suggestiveness. While it is true that D.K. was present when her husband positively identified Bauer as the man who had been at the family home several days before the rape inquiring about the boat, it must be emphasized that D.K. was unable to make a positive identification of Bauer from the photographic arrays. She only "showed interest" in Bauer's pictures.

Insofar as the physical line-up is concerned, we again find no evidence of impropriety. Detectives Gertz and Green testified as to the procedures used in the line-up, and no testimony was offered by Bauer or others to controvert the observations made by the detectives. Therefore we are satisfied that the first prong of the Lara test has been met. Even if we assume, for the purpose of argument, that Bauer's concerns about suggestiveness have some credence, we find no error in admitting evidence of the subsequent identifications because, following the second prong of Lara, we conclude that the photographic line-ups did not give rise to an irreparable misidentification.

In State v. Higley (Mont.1980), 621 P.2d 1043, 1049, 37 St.Rep. 1942, 1947, this Court identified the important criteria for evaluating the likelihood of misidentification. These factors, first set out by the United States Supreme Court in Neil v. Biggers (1970), 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411, are (1) opportunity of the witnesses to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.

D.K. testified that Bauer was in her home from five to ten minutes before he made his move. In Simmons v. United States (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, witness identification of a bank robber who was in the bank for approximately five minutes was permitted, the Court finding that the five minutes afforded witnesses ample opportunity to view the robbers. It should be emphasized that, in the instant case, D.K. also took fleeting glances of her attacker while the rape was taking place and while he forced her to kiss him.

Her degree of attention was also very high. The pair stood and conversed about the boat before the attack. In the bedroom, she was at first standing while facing him, kissing him against her will, and then was seated naked on the bed facing him before the rape. It cannot be discounted that she also answered the door seven to ten days before when he came to inquire about the boat.

The record does not contain D.K.'s original description of the rapist. Nevertheless, defense counsel on cross-examination alleged only one inconsistency between Bauer's features and the description. The "inconsistency" was that in her statement, D.K. stated that the attacker had "medium brown" hair, and then on the stand said his hair appeared "dishwater blonde." Apparently all other features described--height, weight, age, lack of distinctive facial scars--matched those of the defendant.

The level of certainty demonstrated at the physical line-up was uncontradicted. D.K. immediately identified "No. 5" (Bauer) as soon as the curtain was opened. She never wavered after all the "suspects" were...