State v. Dickens

• Decision Date: 24 June 1982
• Docket Number: No. 81-412,81-412
• Parties: STATE of Montana, Plaintiff and Respondent, v. Michael Alan DICKENS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 338

647 P.2d 338

198 Mont. 482

STATE of Montana, Plaintiff and Respondent, v. Michael Alan DICKENS, Defendant and Appellant.

No. 81-412.

Supreme Court of Montana.

Submitted on Briefs March 5, 1982.

Decided June 24, 1982.

Michael S. Smartt, Great Falls, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, J. Fred Bourdeau, County Atty., Great Falls, for plaintiff and respondent.

DALY, Justice.

Michael Alan Dickens (hereinafter referred to as appellant) was charged before the District Court of the Eighth Judicial District of the State of Montana, in and for the County of Cascade, with the crime of aggravated kidnapping, a felony, and of sexual intercourse without consent, a felony. A jury trial was held on April 28, 1981, and after four days of trial, the jury returned guilty verdicts on both counts.

On June 3, 1981, the court sentenced appellant to twenty years for the crime of sexual intercourse without consent; for the use of a dangerous weapon, he was given an additional (consecutive) ten years; and, for the crime of aggravated kidnapping, he was sentenced to thirty years (to be served concurrently) of confinement in the Montana State Prison. Appellant was found to be a nondangerous offender for parole eligibility purposes.

Appellant's motion for a new trial was denied, and this appeal followed.

On New Year's Eve, 1980, the victim, according to her testimony, was abducted at knife point from a city street in Great Falls, Montana, and forced into appellant's vehicle. She was then taken to an area near Giant Springs where the appellant forced her, at knife point, to engage in various sexual acts including sexual intercourse. After the acts had been completed, he pulled her from the vehicle and gave her a choice of either being knifed or thrown over the nearby cliffs into the river. A struggle ensued, and the victim managed to escape the appellant by kicking him in the groin. Though naked except for her socks, she managed to make her way to Malmstrom Air Force Base about two miles away. Soon thereafter, she was rescued by base security personnel.

The sheriff's department was notified, and the victim was taken to a local hospital for treatment. At the hospital she was examined by a Dr. Miller, who discovered, and later testified, that there was motil semen in her vagina and an abrasion on the labial area of her vaginal opening.

Within several days the victim had identified the appellant from a photograph and at an informal lineup identification.

In contrast, the appellant testified that he picked up the victim who was hitchhiking. He testified that she made advances towards him and suggested they go to Giant Springs "to bring in the New Year." Appellant testified that they went to Giant Springs, parked, got in the backseat of his car and had a sexual encounter, including sexual intercourse. Thereafter, according to appellant's testimony, the victim became upset, got out of the car and ran off. Appellant testified that her conduct angered him and that after waiting a short time he drove off.

The State presented numerous witnesses who testified about certain circumstances surrounding the incident. The most damaging testimony to appellant's defense was the testimony of his roommate and the medical testimony of Dr. Miller. The appellant's roommate testified that on the date following the attack the appellant stated he had abducted a woman the night before, had taken her to Giant Springs and had threatened to rape her or throw her over the cliffs. Dr. Miller, a specialist in obstetrics and gynecology, who also had done approximately fifty examinations of rape victims over a ten-year period, was allowed to testify that from his clinical observations, the victim had been raped.

Appellant raises numerous issues of error on appeal and these can be summarized as follows:

1. Was the appellant denied his right to a fair trial?

2. Was there sufficient jury misconduct present to warrant a reversal?

3. Was the trial court committing reversible error when it allowed the physician to voice an opinion as to the ultimate issue?

4. Was the appellant denied a fair trial because the State refused to stipulate?

Appellant contends that he was denied his right to a fair trial because the trial court made an improper comment on the evidence; impaired the cross-examination of a key prosecution witness; displayed a nonjudicial attitude toward defense counsel; and, improperly restricted the length of closing argument. These contentions are not supported by the record or by the law.

The alleged improper comments by the trial court occurred when, during direct examination of one of appellant's witnesses, the court stated that, "all this line of testimony is irrelevant," and, "(i)t's about time" when the prosecution objected. First, there is no indication in the record of the court ever stating, "(i)t's about time." Counsel refers to a page in the transcript where the remark is alleged to have occurred, but it is counsel's own remark. Second, when the court stated, "all this line of testimony is irrelevant," it was ruling on a line of testimony that was indeed irrelevant. Appellant's counsel was asking a witness, that had had sexual relations with appellant in the past, whether other women became upset with appellant because he failed to carry on relationships with them. This was clearly an improper line of questioning. Rule 402, Mont.R.Evid.; Rule 602, Mont.R.Evid. Further, the "comment" was harmless error and does not provide sufficient grounds for a reversal. State v. Bier (1979), Mont., 591 P.2d 1115, 36 St.Rep. 466; State v. LaMere (1980), Mont., 621 P.2d 462, 37 St.Rep. 1936.

Appellant contends that the court impaired the cross-examination of a key prosecution witness by interrupting counsel on several occasions. A review of the record reveals that the "interruptions" were merely actions by the trial court to keep the trial running smoothly and to prevent counsel from engaging in frequent sojourns into side issues. The court has a duty to conduct the trial in a speedy and fair manner and has a great amount of discretion in so doing. State v. LaMere, supra; State v. Pippi (1921), 59 Mont. 116, 123, 195 P. 556, 558-559.

It is argued by appellant that the trial court displayed a nonjudicial attitude toward defense counsel. This attitude is alleged to have displayed itself during several instances, beginning with voir dire and ending with the trial court's ordering defense counsel to return to the defense table during examination of the appellant. Again, the record does not support the contentions.

It was stated in State v. Cassill (1924), 70 Mont. 433, 452, 227 P. 49, 57:

"It will not serve any useful purpose to enter into a particular discussion of these alleged errors. In view of the conclusion reached with respect thereto, of the correctness of which we have no doubt whatever, we shall content ourselves with saying that while we do not approve of any of the comments or remarks made by the judge, which are complained of, we do not find that any of them, or all of them considered together, worked prejudice to any substantial rights of the defendants, or probably could have done so."

Here, as in Cassil, there exists no basis for concluding that the right of appellant to a fair trial was in any way denied or impeded by the action of the trial court. See also: State v. McKenzie (1980), Mont., 608 P.2d 428, 458, 37 St.Rep. 325; State v. Metcalf (1969), 153 Mont. 369, 376-377, 457 P.2d 453; State v. Pokini (1974), 55 Haw. 640, 526 P.2d 94, 101.

Appellant also contends that his right to a fair trial was affected when the court limited the time for his closing argument to one-half hour. While it is true that the trial court informed defense counsel that he would only allow thirty minutes to conclude his closing argument, it is also true that defense counsel had already been talking for one hour and seven minutes. The trial court did not abuse its discretion by limiting counsel to a closing argument that was one hour and thirty-seven minutes long. State v. LaMere, supra.

The second major issue raised by the appellant concerns certain allegations of jury misconduct. This alleged misconduct occurred in two forms: first, there was a possibility that several jurors may have briefly conversed with prosecution witnesses; second, the bailiff's statements to the jurors. A review of the record and applicable case law reveals that no reversible error took place.

The first instance of alleged misconduct took place, according to the appellant, during the trial when several members of the jury were seen, by several of appellant's witnesses, facing some of the prosecution's witnesses and moving their mouths. It is not clear from the record whether any conversation was actually heard, but the appellant's witnesses did testify during the motion for a new trial that it "appeared" some communication took place.

If there had indeed been communications of an improper nature between several of the jurors and some of the prosecution's witnesses during the trial, defense counsel had an obligation at that time to inform the court of the matter. Disciplinary Rule 7-108(F), Montana Code of Professional Responsibility. Further, this type of communication, a possibility at best, is not sufficient reversible error. In Turner v. Louisiana (1965), 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424, a case cited as controlling on this issue by appellant, the United States Supreme Court held that a verdict can be reversed if it can be shown that communications of a dubious nature takes place between prosecution witnesses and jurors. A review of the facts in Turner reveals that what consisted of reversible error there is a far cry from what transpired in the present case. In Turner, the two key prosecution witnesses were deputy sheriffs who were also in charge of the jurors. The Court noted "... We deal here not with a brief...