State v. Maxwell

• Decision Date: 28 June 1982
• Docket Number: No. 81-429,81-429
• Citation: 39 St.Rep. 1149,647 P.2d 348,198 Mont. 498
• Parties: STATE of Montana, Plaintiff and Respondent, v. Gregory Kent MAXWELL, Defendant and Appellant.
• Court: Montana Supreme Court

Page 348

647 P.2d 348

198 Mont. 498

STATE of Montana, Plaintiff and Respondent, v. Gregory Kent MAXWELL, Defendant and Appellant.

No. 81-429.

Supreme Court of Montana.

Submitted Feb. 26, 1982.

Decided June 28, 1982.

R. Allen Beck, argued, Billings, for defendant and appellant

Mike Greely, Atty. Gen., Dorothy McCarter, Asst. Atty. Gen., argued, Helena, Harold F. Hanser, County Atty., Klaus Richter, argued, Deputy County Atty., Billings, for plaintiff and respondent.

SHEA, Justice.

Defendant appeals his conviction in Yellowstone County District Court, of sexual intercourse without consent.

Defendant raises several issues. First, he argues that his conviction is unsupported by substantial evidence. This claim is based on the assertion that the testimony of the complaining witness is so inherently incredible that it is unworthy of belief as a matter of law. He also claims that his alibi defense entitles him to a reversal as a matter of law. Second, he claims that the jury was guilty of misconduct during deliberations by improperly considering facts not in evidence and by disregarding competent scientific evidence. Third, he claims that the jury foreperson, because of her aggravated diabetic condition, was compelled to surrender her honest conviction that the defendant was innocent. We affirm.

On November 13, 1980, the victim's sister reported to the Yellowstone County Sheriff's Department that the victim had been sexually assaulted. Deputies arrived at the victim's residence near Ballentine to investigate and she was taken to a Billings Hospital for treatment of a number of superficial cuts inflicted during the attack.

The evening following the attack, the victim gave the police a statement containing her first version of the crime. She stated that, while hanging clothes outside her trailer home during the afternoon, she was grabbed from behind by a very large, fat, red haired man who forced her into a barn located on the property. She stated that her attacker had large bumps on his face and a very peculiar voice. The attacker then ripped and cut off her clothes with a hunting knife and forced her to perform oral sex twice. The victim stated that both times the attacker removed his penis from her mouth and "it went" all over her face and hair. The attacker cut her repeatedly with the knife and threatened her life if she told anyone of the attack, and then fled. After waiting in the barn for a considerable time, she returned to her house, threw her clothes in the garbage can and took several baths. She finally called her sister in Hardin, requesting that she come to her house because she had been hurt. The sister called the police shortly after she arrived at the victim's house.

On November 14, the day after the attack, the victim again gave police a statement which was substantially the same as the one given the day before. Sometime after this, the victim was shown a number of photographs by the police. From five photographs, the victim selected two that she felt were similar to the man she had described. One of these individuals was questioned by the police, but no charges were filed.

On November 24, the victim called Detective Ellis, and asked to speak with him concerning the attack and Detective Ellis drove to her house. During this interview, the victim substantially changed her story about when, where, and how the crime took place, and identified her assailant as Greg Maxwell, a person whom she had met on one occasion about one month before the attack. She recanted her previous statements, saying that she gave false information out of fear that Maxwell would seek revenge if she reported him to the police. On the same day, the victim gave another account of the attack.

While doing her laundry at about 7:45 a. m., she answered a knock on her door. She recognized the defendant, invited him inside, and offered him a cup of coffee. When she turned to make the coffee, the defendant grabbed her from behind and forced her at knifepoint into the bedroom. He cut away her clothes and twice forced her to perform oral sex, and cut her repeatedly with the knife. Her account also left the police with the impression that Maxwell had ejaculated, although she had not expressly stated this.

Maxwell was arrested on the afternoon of November 24 and charged with sexual intercourse without consent. When first questioned as to his whereabouts on November 13, Maxwell stated that he was either at home in Billings, or at work on the Crow Reservation. Maxwell gave permission to search his truck and a hunting knife was found. At trial, the victim stated that the knife was "similar" to the one used in the attack, but she was unable to positively identify it, because she had not seen the handle of the knife used in the attack. The defendant's knife was admitted at trial without objection.

During the investigation, the police learned that Maxwell suffered from a condition known as "retrograde ejaculation" which prevented him from emitting any ejaculate. This caused Detective Ellis some concern because the victim's account had left him with the impression that the attacker had twice ejaculated on her face and hair. When questioned by Ellis, the victim explained her previous statement, saying that she was not aware of any ejaculate. She further explained that she actually meant to say that her attacker had rubbed his penis on her face and hair. Because her face had been cut, she felt "something sticky" on her face which may have been her own blood. She also stated that she had never previously had oral sex, and had never seen semen.

The victim testified that the assault took place at approximately 7:45 a. m. The defendant relied on alibi and the victim's prior inconsistent statements to impeach her.

Maxwell's girlfriend testified that he was still in bed in their apartment when she left for work at 6:30 a. m. Maxwell testified that he arose at about 7:00 or 7:30 a. m. and made coffee while reviewing a booklet from the Builder's Exchange. (He is a self-employed drywaller and frequently relies on the Builder's Exchange in finding jobs.) Defendant testified that at about 8:20 a. m., he talked on the telephone with his brother, Tom Branstatter, concerning a possible hunting trip. His brother confirmed the 8:20 a. m. telephone call. Defendant testified that he talked with his brother for approximately 30 minutes, and after the call, he continued reviewing the Builder's Exchange booklet.

Defendant testified that at about 9:00 a. m., he left his apartment and went to the Builder's Exchange to look at specific sets of plans on which he intended to bid. On his arrival he found that these plans were not available, and he then went to visit his other brother, Ted Maxwell. He arrived at Ted Maxwell's home between 10:00 and 10:30 a. m., and remained there until close to 3:00 p. m. Both Ted Maxwell and Ted's wife testified to the defendant's presence in their home from approximately 10:00 a. m. to 3:00 p. m.

SUBSTANTIAL EVIDENCE

Defendant's time, other than his own testimony, is unaccounted for between 6:30 a. m. and 8:20 a. m. Nor, of course, could Tom Branstatter be sure that defendant called him from home at 8:20 a. m. Nonetheless, defendant argues the uncontradicted testimony of his family and girlfriend established an alibi. He further argues that the testimony of the victim, was so inherently incredible that, as a matter of law, it cannot support the verdict.

The jury is the sole judge of the credibility of a witness. Batchoff v. Craney (1946), 119 Mont. 157, 172 P.2d 308. Although this case is especially troubling because of the victim's prior inconsistent statements, these inconsistencies do not make her testimony inherently incredible. "Only in those rare cases where the story told is so inherently improbable or is so nullified by material self-contradictions that no fair-minded person could believe it may we say that no firm foundation exists for the verdict based upon it." State v. Gaimos (1916), 53 Mont. 118, 162 P. 596 at 599. A conviction of sexual intercourse without consent may be based entirely on the uncorroborated testimony of the victim. State v. Metcalf (1969), 153 Mont. 369, 457 P.2d 453. See also, State v. Bouldin (1969), 153 Mont. 276, 456 P.2d 830, in which this Court stated:

"... disputed questions of fact and the credibility of witnesses will not be considered on appeal but that determination of such matters is within the province of the jury. As long as there is substantial evidence to support the verdict it will not be disturbed on appeal (citing cases). Here, the testimony of the prosecutrix and the surrounding circumstances constituted[198 Mont. 504] substantial evidence to support the conviction." 456 P.2d at 834-835.

It is undisputed that the victim had suffered a violent physical assault. She was treated for many superficial lacerations that, in all probability, were not self-inflicted. The question was whether the defendant had assaulted her and whether he had raped her. The victim's first account differed greatly from her later account of the attack. The defense attempted to impeach her testimony with her first account of the attack. She admitted making the first statement, but explained that she gave the initial false account because of her fear that the defendant would seek revenge if she identified the defendant as her assailant. She testified that the defendant threatened her if she went to the authorities. It was for the jury to determine whether, because of her conflicting statements, she was worthy of belief. The jury was obviously satisfied with her explanation of her first statement. Her conflicting statements do not justify this Court to declare that her testimony is, as, a matter of law, unworthy of belief.

The defendant's alibi witnesses could not account for his presence at the time of the assault, approximately 7:40...