State v. Mackie
| Decision Date | 21 January 1981 |
| Docket Number | No. 79-55,79-55 |
| Citation | 38 St.Rep. 86,191 Mont. 138,622 P.2d 673 |
| Court | Montana Supreme Court |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Terrance Andrew MACKIE, a/k/a Jim Mason, Defendant and Appellant. |
Murray & Holt, Margaret Borg, argued, Missoula, for defendant and appellant.
Mike Greely, Atty. Gen., Chris Tweeten, argued, Asst. Atty. Gen., Helena, Robert Deschamps III, County Atty., Karen S. Townsend, argued, Deputy County Atty., Missoula, for plaintiff and respondent.
*
After trial by jury, defendant was convicted in the Fourth Judicial District Court Missoula County, of sexual intercourse without consent and thereupon sentenced to 20 years at Montana State Prison. He appeals both the conviction and sentence. We affirm.
The following errors are attributed to the trial court:
1. Admitting a photograph depicting abrasions on the victim's back.
2. Allowing three prosecution witnesses to testify about conversations they had with the victim.
3. Refusing to give a special cautionary rape instruction.
4. Utilizing at sentencing psychiatric and presentence investigation reports containing unsubstantiated information.
There was conflicting evidence regarding the events which occurred on the evening of August 29, 1977. The prosecution presented evidence to prove defendant brutally raped a young Missoula woman that night. The defendant claimed the woman voluntarily engaged in sexual intercourse with him. The rape victim testified she went for a drive with the defendant, intending to go to a coffee shop and discuss personal problems developing between defendant and his girlfriend, who was her roommate. Instead of driving to the coffee shop, she said defendant drove her to an isolated area, parked the car, and made sexual advances. She testified that defendant choked and raped her, when she resisted the advances. Defendant testified he and the victim voluntarily engaged in sexual intercourse in the victim's apartment that night. He admitted they did go for a drive but insisted they merely drove around town.
In his first specification of error, defendant claims the court erred by allowing into evidence a photograph depicting linear abrasions or scratches appearing on the victim's back. He maintains the prosecution presented an insufficient foundation to properly permit the photograph into evidence. We disagree. The nurse who took the picture during an examination of the victim immediately following the incident testified as follows:
The longstanding rule in Montana is that a photograph is admissible if it "fairly and accurately represents relevant evidence." State v. Jones (1914), 48 Mont. 505, 139 P. 441. It is within the discretion of the trial court to allow into evidence duly verified photographs to aid the jury in its fact-finding process. Fulton v. Chouteau County Farmers' Co. (1934), 98 Mont. 48, 37 P.2d 1025. This photograph, suggesting that force was used by defendant during the incident, was highly relevant to the issue of consent. It tended to corroborate the victim's account of the incident. It was of such poor quality that it could not be considered inflammatory. In fact, it was of such poor quality that it could not be considered prejudicial even if it was inadmissible.
Defendant next contends a portion of the testimony of three prosecution witnesses was inadmissible hearsay. These witnesses, two friends of the defendant and a rape counselor, met with the victim the morning after the rape incident. Each witness testified the victim appeared to be frightened and disoriented. Over defense counsel's objection, the following testimony was given:
First witness:
"Q. I'm sorry. I can't hear you ... A. I'm sorry. You know, because I was driving the Volkswagon ...
Second witness:
Rape counselor:
Both parties believe the admissibility of these statements is governed by Rule 803(2), Mont.R.Evid., the excited utterance exception to the hearsay rule, which provides:
Both prosecution and defense agree the alleged rape would be sufficiently startling to cause the victim to make excited utterances. They disagree as to whether the statements here were made "under the stress of excitement" caused by the rape, thereby qualifying as excited utterances. The defense contends these statements are inadmissible because they were made up to four hours after the alleged rape incident. The prosecution rebuts defendant's argument by showing that the rape victim here was suffering from "rape trauma syndrome", a medical term for the disorientation and shock experienced by rape victims following a rape assault. These arguments are not germane as the testimony included above does not contain hearsay under the Montana Rules of Evidence.
The first two witnesses' statements do not fit within our definition of a hearsay statement. Rule 801(c), Mont.R.Evid. defines hearsay as follows:
(Emphasis added.)
Clearly, the statements made by the first two witnesses were not offered to prove the truth of the assertions made therein. While they do tend to show that the victim was in a high state of anxiety and, possibly, confusion, the prosecution was obviously not presenting them to prove the lineage of the defendant or anything about the relationship between the victim and the deity. The exclamations themselves cannot possibly be viewed as probative of any element of the crime. The objections to the witnesses recounting them were properly overruled.
The third statement, although hearsay as defined by Rule 801(c), is admissible as a nonhearsay statement under Rule 801(d)(1)(B), Mont.R.Evid.:
The defendant insisted throughout that the sexual intercourse that occurred with the victim was consensual. In order to prove lack of consent, the prosecution called the victim to testify. Upon direct examination the victim testified defendant had choked her to force her to engage in intercourse. Defense counsel on cross-examination attempted to impeach her by asking her to explain why she did not report this choking to the doctor who examined her after the rape incident. After five more witnesses were called by the prosecution, the rape counselor was called and she recounted the purported hearsay regarding the victim's statement about the choking. These circumstances clearly qualify the counselor's testimony as nonhearsay under Rule 801(d)(1)(B), supra. The quoted declarant (rape victim) testified at the trial, she was subject to cross-examination concerning her statement, the counselor's statement is consistent with the victim's testimony, and it rebuts an implied charge of fabrication.
The hearsay rule is intended to insure that only reliable evidence of out-of-court declarations is presented to a jury. Testimonial evidence presented at trial may be tested for reliability by requiring the witness offering the testimony to testify under oath, subject to cross-examination. Hearsay evidence, by definition, is evidence that cannot be tested for reliability in this manner. See Commission Comment, Rule 801, Mont.R.Evid. Unless the hearsay evidence can be shown to have some circumstantial guaranty of trustworthiness, its admission is...
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