State v. Lamping

• Court: Montana Supreme Court
• Writing for the Court: HUNT; TURNAGE
• Citation: State v. Lamping, 752 P.2d 742, 231 Mont. 288, 45 St.Rep. 616 (Mont. 1988)
• Decision Date: 29 March 1988
• Docket Number: No. 87-106,87-106
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Leonard Peter LAMPING, Defendant and Appellant.

Page 742

752 P.2d 742

231 Mont. 288

The STATE of Montana, Plaintiff and Respondent, v. Leonard Peter LAMPING, Defendant and Appellant.

No. 87-106.

Supreme Court of Montana.

Submitted on Briefs Feb. 25, 1988.

Decided March 29, 1988.

Edmund F. Sheehy, Jr., Cannon and Sheehy, Helena, for defendant and appellant.

Mike Greely, Atty. Gen., Mike McGrath, Co. Atty., Carolyn Clemens, Deputy County Atty., Helena, for plaintiff and respondent.

HUNT, Justice.

Leonard Peter Lamping, the defendant, was convicted of sexual intercourse without consent by jury trial in the District Court of the First Judicial District, Lewis and Clark County. Defendant appealed.

We affirm.

The issues raised on appeal are:

1. Whether the District Court erred in denying the defendant's motion for a new trial?

2. Whether sufficient evidence exists to sustain the defendant's conviction for sexual intercourse without consent?

On October 29, 1986, Leonard Peter Lamping, the defendant, was convicted under Sec. 45-5-503(1) and (3), MCA, of sexual intercourse without consent arising from a March 31, 1986 incidence. At the time of the act, Lamping was 45 years of age and the victim was 15 years of age. Lamping was sentenced to serve 25 years in prison with 10 years suspended.

The series of events which lead to the felonious act began on March 30, 1986 when the victim and a female companion ran away from home. The two girls spent the day in the Scratch Gravel Hills. Later that day, the girls received a ride into the Helena city limits and went to the home of the victim's boyfriend. The boyfriend was not at home, so the girls went to the apartment building which housed an acquaintance, Rick, and also the defendant, Lamping. The girls decided to remain in the hallway but were later invited into the two-room apartment by Lamping. The evening of March 30, 1986, the girls slept on the floor of the apartment which housed, among others, the defendant Lamping.

The following day, March 31, 1986, the girls remained in the apartment. The victim testified that early in the evening she became tired and laid down on the bed located in the front room. She further testified that Lamping then laid down on the bed next to her and performed the sexual act. Lamping testified that he did not perform any sexual acts on the child nor touch her in an inappropriate way. He further testified that he had laid down on the bed first and that the victim then laid down next to him.

Fourteen other people were available to testify to what they saw transpire between Lamping and the victim during the early evening of March 31, 1986; to what actions the victim took to escape Lamping; and to whether she appeared scared during any of this time. At the trial, the State called five out of the possible 14 witnesses they had listed. Among those not called to testify was Kenneth Bennett.

The first issue raised on appeal is whether the District Court erred in denying Lamping's motion for a new trial. Lamping argues that Kenneth Bennett's proposed testimony was newly discovered evidence upon which the District Court should have granted him a new trial. Lamping had access to a prepared police report that indicated Bennett's proposed testimony, yet Lamping claims that the "exact nature" of Bennett's proposed testimony was not known to him until after the trial and conviction. In asserting his claim, Lamping relies upon the State's decision not to call Bennett to testify after the State served him with a subpoena. Lamping argues that once he was aware that Bennett was served with a subpoena he reasonably believed that Bennett would testify.

The State interviewed Bennett on October 27, 1986 and decided not to have him testify because past experiences proved he was an unreliable witness and because parts of his testimony were cumulative. The District Court determined that the State did not hide a witness from Lamping and that Bennett's proposed testimony would be cumulative. The court thus denied Lamping's motion for a new trial based upon Lamping's claim of newly discovered evidence.

The District Court did not abuse its discretion in refusing to grant a new trial. Section 46-16-702(1), MCA, allows a district court to grant the defendant a new trial "if required in the interest of justice." However, applications for new trials are not favored when a defendant has had ample opportunity to present his case. State v. Pease (Mont.1987), 740 P.2d 659, 664-65, 44 St.Rep. 1203, 1210; State v. Kutnyak (Mont.1984), 685 P.2d 901, 909, 41 St.Rep. 1277, 1287; State v. Higley (Mont.1980), 621 P.2d 1043, 1055, 37 St.Rep. 1942, 1955; State v. Greeno (1959), 135 Mont. 580, 586, 342 P.2d 1052, 1055. In the present case, Lamping argues that the "exact nature" of Bennett's proposed testimony was not available to him at the time of trial. The record demonstrates that the State listed Bennett as a witness; Lamping had access to the police report indicating the nature of Bennett's proposed testimony; and Lamping made little or no efforts to contact Bennett to question him about his statement to the police officer. Lamping also made no efforts during the trial to call Bennett after knowing the State was not going to call him.

The State does not have an obligation to call every witness listed nor an obligation to reveal the "exact nature" of a witness's testimony. The District Court found that the State did not hide a witness from Lamping. The record supports this finding and we conclude that Lamping had ample opportunity to determine for himself the "exact nature" of Bennett's testimony and to present his case. Thus, Lamping's motion for a new trial is disfavored, but the application of the factors listed in Greeno to the present case is required to determine whether the District Court properly denied the motion.

In Greeno, this Court sets forth six factors that governs when a new trial, based on newly discovered evidence, should be granted. The six factors are: (1) knowledge of the evidence came after the trial; (2) lack of due diligence is not the reason for not discovering the evidence earlier; (3) the evidence is so material that upon a new trial a different result is likely; (4) the evidence is not cumulative; (5) the witness whose evidence is allegedly newly discovered must support the application for a new trial by affidavit; and (6) the evidence must not merely tend to impeach the character or credibility of a witness. Greeno, 135 Mont. at 586, 342 P.2d at 1055 (citing State v. Matkins (1912), 45 Mont. 58, 68, 121 P. 881, 885). The District Court in this case held that Bennett's proposed testimony was cumulative. A review of the record supports this finding.

The record shows that if Bennett had been called to testify, the relevant parts of his testimony would have included that, while he was in the apartment, he did not see Lamping and the victim under any covers while they were on the bed and he never saw the victim in her underwear; that he assisted the victim out of the bathroom window; and that she was not bleeding when she escaped the apartment nor did she appear scared when she escaped. In this case, four or more witnesses testified to each of the above facts. Parts of the witnesses' testimony harmonized with Bennett's proposed testimony and other parts contradicted...