State v. Brodniak

• Decision Date: 03 June 1986
• Docket Number: No. 85-104,85-104
• Citation: 221 Mont. 212,718 P.2d 322,43 St.Rep. 755
• Parties: STATE of Montana, Plaintiff and Respondent, v. James M. BRODNIAK, Defendant and Appellant.
• Court: Montana Supreme Court

Page 322

718 P.2d 322

221 Mont. 212

STATE of Montana, Plaintiff and Respondent, v. James M. BRODNIAK, Defendant and Appellant.

No. 85-104.

Supreme Court of Montana.

Submitted Feb. 6, 1986.

Decided April 30, 1986.

Rehearing Denied June 3, 1986.

Ferguson & Mitchell, Carol A. Mitchell argued, Missoula, C. William Boggs argued, Missoula, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Dorothy McCarter argued, Asst. Atty. Gen., Robert L. Deschamps, III, Co. Atty., Missoula, Karen Townsend argued, Deputy Co. Atty., for plaintiff and respondent.

SHEEHY, Justice.

Appellant, James Brodniak, appeals from a judgment of conviction of sexual intercourse without consent after a jury verdict in the District Court, Fourth Judicial District, County of Missoula.

The facts of this case are as follows: on the evening of May 10, 1984, Debbie Preston, a 22-year-old woman, accompanied a friend, Diane Green, to a bowling league banquet at the Press Box in Missoula. While at the Press Box, Preston consumed six drinks. At approximately 9:30 p.m., the two women left the Press Box and went to the Trails West Tavern in Missoula.

Upon entering the Trails West, Preston observed Brodniak whom she had met once before. The two women then joined a third woman, Diane Gettes. Eventually, Brodniak came over and sat with the three women. While at the Trails West, Preston consumed four more drinks.

At approximately 1:30 a.m., Green announced she had to go home. Preston testified that she was not ready to go home yet so rather than leaving with Green, she accompanied Green to her car to retrieve her belongings and then returned to the bar with the intention of asking Gettes for a ride home. Preston, further, testified that when she returned from retrieving her belongings from Green's car, she asked Brodniak for a ride home because she could not find Gettes in the bar. Gettes, however, testified that Preston had made plans to leave with Brodniak before Green ever left the bar and that when Green asked Preston if she wanted a ride home, Preston said, "No, I'm going with him. We are going to get a case and talk." Gettes also testified that she had not left the bar while Preston was retrieving her belongings, but had briefly gone to the restroom.

At approximately 1:45 a.m., Preston left the Trails West with Brodniak. From the Trails West, the two drove to a nearby Mini Mart to buy a six pack of beer, as Preston had agreed to "have a drink of beer and go talk." They then drove to a dormitory parking lot at the University of Montana. Both Preston and Brodniak agreed that while at the parking lot they drank some beer and talked. Brodniak, however, further testified that he and Preston "started making out" while at the parking lot.

From this point the testimony of Preston and Brodniak conflicts. Preston testified as follows: after drinking some beer and talking for a while at the university parking lot, she asked Brodniak to take her home because she was tired. Brodniak told her he would take her home, but instead drove to Pattee Canyon. Upon leaving the university parking lot, Brodniak turned the wrong direction to take Preston home, but it did not dawn on her. After realizing they were going to Pattee Canyon, Preston told Brodniak she didn't want to go there because she was afraid of the area. She had heard about devil worshippers in the area. Upon arriving in Pattee Canyon, Brodniak parked by the campground, then grabbed Preston's hair and reached across her and locked the door. Brodniak told her he wanted to make love to her and she responded "No." He then forced her to commit oral sex, making her take off all her clothes, including her shoes and socks. He continued pulling her hair to force her to comply with his wishes. After the oral sex, Brodniak forced her between the seats and forced sexual intercourse, both vaginal and anal. Brodniak then opened her door, shoved her head out, and began choking her. Brodniak told her he was going to kill her, and also threatened her mother. He then forced her to have oral sex and intercourse with him again. Afterwards he "snapped out of things" and told her to get dressed. Brodniak then drove her to a corner near Green's house, where she had asked to be dropped off. When she arrived at Green's house Preston told her what happened, left the house hysterical and was walking down the street when Green caught up with her. Green eventually took Preston to her own home where Preston lived with her mother. Preston's mother then took her to the hospital.

Brodniak's version of the facts varies considerably. Brodniak testified that they left the university parking lot because Preston had to go to the bathroom and that she suggested that they go to "some wooded area where nobody would see her." Brodniak testified that he then drove to Pattee Canyon, parked his car, and helped Preston out. Preston then walked down into a borrow pit, stood in the water, and urinated. Other witnesses who saw Preston that morning testified she was not wearing her shoes because they were wet. It was Preston's contention that Brodniak never let her out of the car and that her shoes were wet because she spilled a beer on them. Brodniak maintained that they went to the campground in Pattee Canyon, parked and started necking. Brodniak further testified that they proceeded to engage in consensual sexual acts. He, however, also testified that toward the end of the sexual encounter, he became violent, pulling Preston's hair and choking her. He testified that very soon after his outburst he took Preston home.

At the hospital, Preston was examined by Dr. Joseph Wyatt, who testified as to her physical condition. Wyatt testified that Preston was experiencing vaginal soreness; she had blood on her underclothes and around her vagina; she had a scratch on her chest; she had blood inside her vagina; and she had an inch-long, bleeding tear at the edge of her anus. Dr. Wyatt stated that Preston's physical condition was "probably not common" as a result of consensual intercourse.

While at the hospital, Preston was interviewed by Deputy Phillip Tilman. He retrieved for evidence the clothes Preston was wearing and a large ball of hair hanging from her head. The nurse that attended Preston at the hospital testified that a "gross amount" of Preston's hair came out when she combed her hair and that her scalp appeared to be tender while she was combing her hair.

During the police investigation, Brodniak's car was searched, and the investigators found several of Preston's hairs in the front seat and one of her earrings on the floor of the backseat. This evidence was examined at the State Crime Lab. Arnold Melnikoff, Bureau Chief of the Crime Lab, testified that the long hairs in the car belonged to Preston and that most of those hairs and the hair in the large ball had been pulled from her head with painful force.

Dr. Herman Walters, a psychologist, examined Preston at the State's request to determine her psychological condition and to recommend treatment. After interviewing Preston several times, Walters concluded that Preston's psychological condition was consistent with all the symptoms of the post traumatic stress disorder known as rape trauma syndrome.

As a result of the above events, Brodniak was charged with sexual intercourse without consent. Trial was held in the District Court and the jury returned a verdict against Brodniak, finding him guilty of the charge of sexual intercourse without consent. Subsequently, Brodniak was sentenced to 20 years in the Montana State Prison.

Brodniak raises six issues on appeal:

1. Whether the State's "expert" testimony concerning rape trauma syndrome, and other matters, should have been excluded;

2. Whether the District Court erroneously refused certain defense instructions crucial to his theory of the case;

3. Whether the District Court committed error in the verdict form it submitted to the jury;

4. Whether all testimony pertaining to Brodniak's confession should have been suppressed under the best evidence rule, and because of the destruction of field notes relating to it;

5. Whether the District Court's inconsistent rulings, and refusal to rule, on major evidentiary issues, deprived defendant of a fair trial; and

6. Whether the District Court's rulings concerning voir dire prejudiced Brodniak's right to the effective assistance of counsel.

A. Rape Trauma Syndrome

We will first address the admissibility of expert testimony concerning rape trauma syndrome (RTS). Brodniak attacks the admission of RTS testimony on numerous grounds only one of which we find persuasive. Specifically, Brodniak contends that certain portions of Walter's testimony was an improper comment on the credibility of the victim.

Before addressing Brodniak's contention on its merits, we believe an overview of RTS testimony is necessary. In State v. Liddell (Mont.1984), 685 P.2d 918, 923, 41 St.Rep. 1293, 1298-99, this Court held that RTS was a proper subject for expert testimony in a sexual intercourse without consent case. Where all that is disputed is the consent element such evidence is relevant to the question of whether there was consent to engage in a sexual act which all parties agreed occurred.

It is true several courts have refused to allow expert testimony on RTS. See State v. Stafford (1985), 77 N.C.App. 19, 334 S.E.2d 799; Allewalt v. State (1985), 61 Md.App. 503, 487 A.2d 664; People v. Bledsoe (1984), 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291; State v. Taylor (Mo.1984), 663 S.W.2d 235; State v. McGee (Minn.1982), 324 N.W.2d 232; State v. Saldana (Minn.1982), 324 N.W.2d 227. The reasons for disallowance vary. One common thread running throughout all such cases, however, is the purpose for which RTS testimony was offered. In all of the above cases, the experts testified that the victim suffered from RTS and therefore concluded expressly or implicitly, in their opinion, that the victim had...