State v. Liddell
| Decision Date | 10 July 1984 |
| Docket Number | No. 83-276,83-276 |
| Citation | 685 P.2d 918,211 Mont. 180,41 St.Rep. 1293 |
| Parties | , 42 A.L.R.4th 865 STATE of Montana, Plaintiff and Respondent, v. James P. LIDDELL, Jr., Defendant and Appellant. |
| Court | Montana Supreme Court |
W. Corbin Howard argued, Billings, for defendant and appellant.
Mike Greely, Atty. Gen., Jim Scheier, Asst. Atty. Gen., Helena, Harold Hanser, County Atty., Charles A. Bradley argued, Deputy County Atty., Billings, for plaintiff and respondent.
Defendant James Liddell was convicted of sexual intercourse without consent following a jury trial in the District Court of Yellowstone County. He appeals from the judgment entered therein. We affirm.
Liddell claims that he and the victim had been acquainted for some time. He maintains that prior to the night in question she had accepted long distance collect calls from him and had agreed to let him stay with her the night of the incident. Liddell also states that he and the victim had sexual intercourse on a prior occasion and that she consented again to sexual intercourse on the night in question. He claims she later accused him of rape only because he indicated he was not going to leave his girlfriend for her.
The victim maintains that she was acquainted with Liddell but had never had sexual intercourse with him prior to the night in question.
When Liddell called her prior to returning to Billings for a doctor's appointment, she stated that she invited him to her home for the purpose of asking him in person to leave her alone. She maintained that on previous occasions he had expressed an interest in getting to know her and that she was not interested.
Subsequent to the telephone call, but prior to Liddell's arrival, the victim's employer spoke with her and she told him what she planned. He indicated that perhaps it was not such a good idea to have invited Liddell over and recommended that she either leave or pretend not to be at home. The victim followed her employer's advice and pretended not to be at home. However, Liddell called out that he knew she was inside so she let him in.
She maintains that she and Liddell talked for some time and that he attempted to kiss and hold her. She reminded him that he had a girlfriend and asked him to leave. Liddell eventually became angry, pulled her into the bedroom and raped her.
Liddell raises the following specifications of error:
1. Refusal to instruct the jury to consider the testimony of the victim with caution;
2. Admitting evidence regarding the mental state of the victim;
3. Permitting Marjene Tower to express her opinion that the victim had been raped;
4. Improperly limiting cross-examination of the prosecution witnesses;
5. Permitting the prosecution to endorse an additional expert witness on the day of trial;
6. Refusing to compel the prosecution to permit the victim to be examined by a defense expert; and 7. Permitting the prosecution to introduce evidence of other crimes, wrongs or acts.
The first specification of error is whether the Court should have instructed the jury to examine the testimony of the victim with caution.
Liddell's counsel offered, and the court refused, the following instruction:
The State offered the following instruction which was given:
"You are instructed that the charge of Sexual Intercourse Without Consent (Felony) is easy to make, difficult to prove and more difficult to disprove, and in considering a case of this kind, it is the duty of the jury to carefully and deliberately consider, compare, and weigh all testimony, facts, and circumstances bearing on the act complained of, and the utmost care, intelligence, and freedom from bias should be exercised by the jury in its consideration thereof."
Appellant maintains that the State's instruction was inadequate because it instructed the jury to carefully consider all testimony as opposed to his proposed instruction which required special examination of only the victim's testimony.
Liddell contends that under the holding of State v. Smith (Mont.1980), 609 P.2d 696, 37 St.Rep. 583, a court is required to give the cautionary instruction that the charge is easily made and difficult to defend against when "[t]he evidence clearly meets the standard of private malice, desire for revenge and absence of corroboration on the critical matters of consent ..."
The instruction offered by the defense in Smith, but refused by the court, is as follows:
"You are instructed that in considering the evidence herein you should consider that the crime of sexual intercourse without consent is one that is easy to charge and difficult to refute."
The instruction given to the jury by the court in Smith stated:
"While it is true that a conviction of rape depends upon the credibility of the primary witnesses, the accuser and the accused, a conviction of sexual intercourse without consent may be had based solely on the uncorroborated testimony of the prosecutrix."
This Court held it was reversible error not to give the cautionary instruction that rape is easy to charge and difficult to refute under the circumstances described in Smith. 609 P.2d at 699. There is no holding in Smith that the jury should also be instructed to view the testimony of the victim alone with caution.
Section 26-1-303, MCA, deals with instructions to juries on how to evaluate evidence. It states, in part, as follows:
There is no provision which states that the testimony of a rape victim should be viewed with caution nor is there provision for the statement that the charge is one easily made and difficult to defend against. In this case, defendant testified that the act was consensual but when he refused to leave his girlfriend for her, the victim got angry. The implication is that she was motivated by malice to allege a false charge.
The victim told a different story. Experts were called and testified as to their opinions. The charge was fully explored by the prosecutor and defense counsel, and the case was submitted to the jury. A cautionary instruction was given but not the specific cautionary instruction requested by the defendant. We find that both the instruction offered but refused and the one given were in error. To state in a jury instruction that the charge is easily made but difficult to defend against is a comment on the evidence which is required neither by law nor public policy and therefore improper. In addition, it would have further compounded the error for the court to have further instructed the jury that the testimony of the victim should be considered with more caution than any other witness. However, this the District Court refused to do.
While the court did improperly instruct the jury that the charge was easily made and difficult to defend against, the error was prejudicial to the State and not to the defendant. Therefore, we find no reason to disturb the verdict based on this specification of error, and we hereby specifically overrule State v. Smith, supra. We hold that a cautionary instruction that rape is easy to allege and difficult to defend against, or one calling for instructing the jury to view the victim's testimony with caution is an improper and unwarranted comment on the evidence and is not required under the law or by reason of public policy. Therefore, such an instruction should not be given.
The second specification of error is whether the District Court erred in admitting evidence regarding the mental state of the victim. This is closely related to the third specification of error as to whether Marjene Tower, a psychiatric nurse, should have been permitted to testify that the disabilities suffered by the victim, including acute depression and severe headaches requiring hospitalization, were caused by the rape.
Defense counsel argues that such testimony was improper because such opinion testimony was not a proper subject for expert testimony under Rule 702, Mont.R.Evid.; the factual and opinion testimony was highly prejudicial to the defendant; the testimony caused confusion and misled the jury; the evidence was not a proper subject for expert opinion; and Tower was not qualified to render an opinion as to Liddell's state of mind.
The victim, Dr. Van Dyk, Cheri Frankel, a psychological counselor, and Marjene Tower, a psychiatric nurse, all testified that the victim suffered from severe headaches which required hospitalization. There was further testimony that rape caused this post-traumatic stress syndrome in the victim.
Defense counsel argues that evidence regarding rape-trauma syndrome is not admissible because it is evidence regarding the mental state of the victim. Defense argues that the Minnesota courts do not allow evidence of rape-trauma syndrome and Montana also...
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