State v. Higley

• Decision Date: 17 December 1980
• Docket Number: Nos. 80-142,80-323,s. 80-142
• Citation: 37 St.Rep. 1942,621 P.2d 1043,190 Mont. 412
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Edward Dennis HIGLEY, Defendant and Appellant. The STATE of Montana, Relator, v. The DISTRICT COURT OF the THIRD JUDICIAL DISTRICT et al., Respondents.
• Court: Montana Supreme Court

Page 1043

621 P.2d 1043

190 Mont. 412

The STATE of Montana, Plaintiff and Respondent, v. Edward Dennis HIGLEY, Defendant and Appellant.

The STATE of Montana, Relator, v. The DISTRICT COURT OF the THIRD JUDICIAL DISTRICT et al., Respondents.

Nos. 80-142, 80-323.

Supreme Court of Montana.

Submitted Nov. 25, 1980.

Decided Dec. 17, 1980.

Larry W. Moran and Michael M. Nash, Michael M. Nash argued, Bozeman, for defendant and appellant.

Mike Greely, Atty. Gen., Mark Murphy argued, Asst. Atty. Gen., Helena, Donald E. White, County Atty., Michael Lilly argued, Deputy County Atty., Bozeman, for plaintiff and respondent.

HASWELL, Chief Justice.

Defendant was convicted in District Court, Gallatin County, of kidnapping and sexual intercourse without consent. He was sentenced to ten years in the State Prison on each count, to be served concurrently. The defendant appealed the conviction and while the appeal was pending, he applied to the district judge, Powell County, for bail pending appeal. The motion was granted and defendant was released from prison. The Gallatin County Attorney applied to this Court for a writ of supervisory control, asking this Court to find that the district judge, Powell County, was without jurisdiction to admit defendant to bail. We consolidated the appeal and the application for the writ. We affirm the conviction and deny the State's application for the writ, finding the issue of bail pending appeal to be moot by reason of our decision to affirm the conviction.

On June 29, 1979, at about 1:30 a. m., Lynette Church left a bar in downtown Bozeman and began walking toward her home. Near the hospital on North Willson, a man jumped from behind a hedge and grabbed her, knocking off her glasses. She screamed, and he clapped a hand over her mouth. She was forced into his car and he drove to a secluded spot in Bridger Canyon. During the drive, and at the stopping point in the Canyon, the defendant forced her to engage in various acts of vaginal and oral sex. During the activity, Linnie noticed a wallet lying on the ground. She slipped it under her coat, which defendant had ordered her to place on the ground before engaging in intercourse. She eventually managed to get the wallet into her pocket.

At about 3:00 a. m., the defendant dropped Lynette off in downtown Bozeman and she walked home. At home she called the Bozeman Help Center and later went to the hospital with members of the Help Center's Rape Outreach Team.

Prior to going to the hospital, Linnie examined the wallet and found a driver's license with a picture. She determined that this was a picture of the man who had attacked her. At the hospital she gave the wallet to Ron Green of the Bozeman police department. He showed her the wallet photograph and Linnie positively identified the individual in the picture as her assailant. Pursuant to a search warrant, the Bozeman detectives searched the defendant's car and found a portion of a fingernail, and pubic hair belonging to the victim.

Defendant was arrested on Friday, June 29, 1979, and appeared before the Justice of the Peace on that day. On Monday, July 2, defendant's attorney requested that a preliminary examination be held that afternoon. The State objected and no examination was held. The defendant made no further request, and was released on bond on July 3, 1979. An information was filed in District Court on July 10, 1979, and defendant filed a motion to quash. The motion was denied.

Trial commenced on October 10, 1979, and defendant was found guilty on October 15. The defendant was sentenced on November 9, 1979, following an interview between the judge and the victim as to her feelings about the appropriate sentence. The defendant was not designated "dangerous" or "non-dangerous" until four months later, following the filing of a psychiatric report by the Department of Institutions.

Defendant raises thirteen issues on appeal:

1. Is a defendant entitled to a preliminary examination if an information has not been filed within ten days after his arrest?

2. Is a pretrial photographic identification by the victim, utilizing only one photograph, so suggestive as to require suppression of any in-court identification?

3. Is the defendant denied his constitutional right to confront his witnesses, by operation of section 45-5-503(5), MCA, precluding evidence of the victim's sexual conduct, and Rule 608, Mont.R.Evid., precluding testimony as to specific instances of a witness' conduct and certain cross-examination?

4. May the District Court allow introduction of evidence at trial which was not specified in the order drawn up following an omnibus hearing?

5. Was the defendant entitled to a cautionary Smith -type instruction, because the substantive facts were in question at trial and there was scanty medical evidence of intercourse?

6. Is defendant entitled to an instruction as to the necessity that the victim manifestly objected to the act of intercourse?

7. Does the evidence support the verdict?

8. Is the district judge permitted to interview the victim on the issue of sentencing without allowing the defendant to cross-examine the victim?

9. Did the district judge err in denying defendant a new trial, when defendant was able, after trial, to produce evidence of mental disease or defect?

10. Was defendant denied his due process rights by the use of incorrect information at sentencing?

11. Does defendant have a right to be present at post-conviction proceedings?

12. Was the failure to designate defendant as "dangerous" or "non-dangerous" for four months a violation of defendant's right against cruel and unusual punishment and a violation of the prohibition against uncertain or indefinite sentencing?

13. Was defendant denied his right to a transcript on appeal?

Defendant was arrested on Friday, June 29, 1979, and made an initial appearance before the Justice of the Peace that day. On Monday, July 2, his attorney contacted justice court and requested that a preliminary examination be held that afternoon. The county attorney received oral notice that a hearing would be held that day. The State objected to the hearing on such short notice and it was not held. Defendant made no further request and he was released on bond on July 3. The county attorney filed an information in District Court on July 10.

Defendant contends that he has a right to a preliminary exam if he has not waived it or if the District Court has not previously granted leave to file direct. The right to a preliminary examination arises under section 46-7-103, MCA:

Preliminary hearing in justice's court. After the initial appearance a justice's court shall, within a reasonable time, hold a preliminary examination unless the defendant waives a preliminary examination, the district court has granted leave to file an information, an indictment has been returned, or the case is triable in justice's court. (Emphasis added.)

The purpose of the preliminary hearing is to determine whether there is probable cause to believe that a felony has been committed. Section 46-10-101, MCA. The probable cause determination may be made in a preliminary examination in justice court, or it may be made by application to the District Court judge, presenting by affidavit such evidence as the judge may require. Section 46-11-201, MCA. The only requirement is that there is an independent judicial determination of probable cause and the defendant has no vested right to either procedure. Gerstein v. Pugh (1975), 420 U.S. 103, 120, 95 S.Ct. 854, 866, 43 L.Ed.2d 54, 69; State v. Dunn (1970), 155 Mont. 319, 325, 472 P.2d 288, 292.

Many states set forth precise time limits within which the State must hold the preliminary examination if the District Court has not granted leave to file an information. The federal statute provides:

"Such examination shall be held within a reasonable time but in any event not later than 10 days following the initial appearance if the defendant is in custody and no later than 20 days if he is not in custody, provided, however, that the preliminary examination shall not be held if the defendant is indicted or if an information against the defendant is filed in district court ..." (Emphasis added.) 18 U.S.C. Fed.R.Crim.P. 5(c).

As can be seen under the federal statute, then, any time beyond 20 days is viewed as unreasonable if the defendant is not in custody. In the instant case, defendant was out on bond and waited only 10 days between his initial appearance and the determination of probable cause.

The previous federal rule required a hearing in a reasonable time only. In James v. Lawrence (D.C.Cir.1949), 176 F.2d 18, 20, the court found that 18 days was not unreasonable. There the State asked for a continuance and the court noted that it must consider time for the government to prepare, in computing reasonable time. Alaska's statute likewise requires a hearing within a reasonable time. In Martinez v. State (Alas.1967), 423 P.2d 700, the court discussed the impracticality of requiring a hearing within a specific time, and noted that what constitutes a reasonable time must be determined by the facts of the case. If the charge is serious, both sides need time to prepare; whether the charged is out on bond is another factor which must be considered, because the purpose of the statute is to protect the accused from unwarranted incarceration. Martinez, supra, 423 P.2d at 710-711. The Martinez court found that 16 days was not an unreasonable amount of time.

We find that a 10-day delay in determining probable cause was not unreasonable. The defendant requested the exam but the State was given only a few hours notice. On request of the State, that hearing was vacated. Defendant was released on bond the next day. He did not request another setting and leave to file was granted less than a week later.

Defendant argues that failure to hold a preliminary examination in this case may have allowed an important witness...