State v. Janda, Cr. N

• Citation: 397 N.W.2d 59
• Decision Date: 02 December 1986
• Docket Number: Cr. N
• Parties: The STATE of North Dakota, Plaintiff and Appellee, v. Michael John JANDA, Defendant and Appellant. o. 1165.
• Court: United States State Supreme Court of North Dakota

Page 59

397 N.W.2d 59

The STATE of North Dakota, Plaintiff and Appellee, v. Michael John JANDA, Defendant and Appellant.

Cr. No. 1165.

Supreme Court of North Dakota.

Dec. 2, 1986.

Nicholas B. Hall, State's Atty., Grafton, for plaintiff and appellee.

Fleming & DuBois, Neil W. Fleming (argued), Cavalier, for defendant and appellant.

LEVINE, Justice.

Michael John Janda appeals from the judgment and sentence entered upon a jury verdict finding him guilty of gross sexual imposition in violation of Sec. 12.1-20-03, N.D.C.C. We affirm.

Because no issue has been raised with regard to the sufficiency of the evidence to sustain the verdict, we need not present a detailed recitation of the facts. Between 8 and 9 a.m. on June 17, 1985, Janda engaged in a sexual act with the complainant in the complainant's home. The central dispute at trial was whether the complainant consented to the act.

Janda has raised the following issues: Whether or not error occurred in (1) allowing the man with whom the complainant lived to testify about statements made by the complainant concerning prior acts by Janda; (2) allowing a nurse to testify about details of the alleged assault told to her by the complainant; (3) admitting certain exhibits into evidence; (4) the sheriff's testifying that during questioning Janda said that he wanted to speak to an attorney; (5) not giving Janda's requested instruction entitled "Testimony Viewed With Caution;" and (6) giving the State's requested instruction entitled "Corroboration Not Necessary."

1. Testimony about statements made by the complainant

Over Janda's objection, Richard [a pseudonym], with whom the complainant lived, testified that immediately after Janda left their house on the evening of June 16, the complainant told him that:

"[E]arlier when she was in the kitchen he had come up to her and grabbed her and that he said some things to her--he wanted her or something like that--and she told me she didn't want him to come around any more and I agreed, we will never have him."

He also testified that the complainant was excited or distressed at that time. This testimony followed earlier testimony by the complainant about the same subject matter.

Janda asserts that the statement was hearsay and did not fall within Rule 801(d), N.D.R.Ev., because (1) he did not charge a recent fabrication, in that "the complaining witnesses' [sic] story did not change from the beginning of this case until trial;" (2) neither improper influence nor motive was at issue; and (3) the testimony was about prior acts of a "peripheral nature" unrelated to the "substance of the offense charged." We disagree.

Rule 801(d), N.D.R.Ev., provides:

"(d) Statements Which are Not Hearsay. A statement is not hearsay if:

"(1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, ..."

We hold that Richard's testimony was admissible under Rule 801(d)(1), N.D.R.Ev., because it rebutted an implied charge of recent fabrication, ¹ as well as an implied charge of improper motive.

In cross-examining the complainant, Janda attempted to show that there was no force or less force involved in the sexual act charged than the complainant had implied in her testimony. Janda also implied that the complainant had an improper motive when his counsel asked the complainant if she was dependent on Richard for support and that if he "had heard or found out you and Mike [Janda] were fooling around, do you think he would have kicked you out of the house?"

If the complainant fabricated her story, her fabrications were "recent" in the sense that they were made after the events occurred. Simply because the complainant's "story did not change from the beginning of the case until trial" does not affect either the fabrication charged or its recentness. The fact that a witness' story never changed does not preclude the admission of a prior consistent statement under Rule 801(d)(1)(ii), N.D.R.Ev.

In United States v. Provenzano, 620 F.2d 985, 1001 (3rd Cir.1980), a prior consistent statement was admissible because it "was highly probative to rebut the defense claim, which at least was implied, that Picardo fabricated the whole conspiracy." Statements by the victim of a sexual assault were admissible under Ariz.R.Evid. 801(d)(1)(B) because "[T]hey were consistent with her testimony at the trial. They were offered to rebut an express and implied charge against her of improper motive--that she had consented to the sexual intercourse, later felt shame, and concocted the accusation of rape." State v. Williams, 131 Ariz. 211, 639 P.2d 1036, 1039 (1982).

See also United States v. Griggs, 735 F.2d 1318, 1326 (11th Cir.1984) [declarant's prior statements admissible where "his veracity was under attack continuously throughout all phases of the proceedings since discrediting" the declarant was the primary goal of the defense]; United States v. Stuart, 718 F.2d 931 (9th Cir.1983) [statements made prior to a plea agreement admissible where cross-examination of the declarant called into question his motive in testifying].

In the instant case, the complainant testified in detail about what Janda did and said to her in her home on June 16 and what she reported to Richard. She was cross-examined ² and an attempt was made to discredit her testimony about the force used in the sexual act charged and to show that she had an improper motive. The statement testified to by Richard was consistent with the complainant's prior testimony and corroborated her assertion that the sexual act occurred without her consent. The statement rebutted an implied charge in the cross-examination of the complainant of recent fabrication and improper motive. The complainant's veracity was under attack throughout the whole course of proceedings, since discrediting her story that the sexual act was accomplished by force without her consent was the primary goal of Janda's defense. The statement was relevant to the issue of consent and, therefore, was not of a "peripheral nature" and was related to the "substance of the offense charged." We thus conclude that the statement was not hearsay under Rule 801(d), N.D.R.Ev., because it was offered to rebut an implied charge of recent fabrication and improper motive. State v. Jenkins, 326 N.W.2d 67, 71 (N.D.1982) [prior consistent statement was not hearsay and was admissible under Rule 801(d)(1), N.D.R.Ev., where the defendant's cross-examination "attempted to establish that the victim or her mother had made up a story concerning the charged crime"]. Our conclusion renders it unnecessary to address the State's contention that the statement was an excited utterance admissible under Rule 803(2), N.D.R.Ev., as well.

2. Nurse's Testimony

Janda asserts that a nurse on duty at the hospital where the complainant was brought for examination after the alleged assault should not have been allowed to testify that the complainant told her, among other things, that: (1) she had been attacked; (2) at her house; (3) her arms had been held down; (4) she had been told not to tell anyone; and (5) Janda did it. He asserts, among other things, that the statements did not constitute either an excited utterance (Rule 803(2), N.D.R.Ev.) because they were made more than one hour after the incident, or statements for purposes of medical diagnosis or treatment (Rule 803(4), N.D.R.Ev.) because they had "absolutely nothing to do with the diagnosis and treatment of [the complainant]."

The State argues that the statements were admissible either under Rule 803(4), N.D.R.Ev., or, relying on the nurse's observation that the complainant was "very pale and awfully frightened," under Rule 803(2), N.D.R.Ev.

Rule 803(4), N.D.R.Ev., provides:

"The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

* * *

* * *

"(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."

Rule 803(4), N.D.R.Ev., was drawn, verbatim, from Rule 803(4), F.R.Ev., which "considerably liberalized prior practice pertaining to the admissibility of statements made for purposes of medical diagnosis or treatment." 4 J. Weinstein and M. Berger, Weinstein's Evidence, p 803(4), p. 803-143 (1985).

"All jurisdictions admit some statements made with a view to treatment as an exception to the hearsay rule, but considerable dissension exists about the scope of the exception. While some courts admit only statements of present symptoms, others have extended the rule to past symptoms, and a few have in addition admitted statements which describe the nature and cause of the injury insofar as they bear on treatment. This last and most expansive approach is expressed in Rule 803(4)." (Emphasis added.) Id. at 803-143.

The purpose of an examination of the kind involved here is not just the preservation of evidence, but diagnosis and treatment as well. In addition to diagnosing and treating such physical injuries as cuts or bruises, health care providers examining one claiming to be the victim of a sexual assault must diagnose whether or not the alleged victim has suffered psychological trauma and, if so, its nature and extent, and treat that as well. The intensity of psychological trauma suffered by the victim of a sexual assault may vary, depending upon such things as the location of the attack, the kind and degree of restraint of movement or force used, or the imposition of fear through an assailant's admonition to the victim...