State v. Norris
| Decision Date | 04 October 1984 |
| Docket Number | No. 84-47,84-47 |
| Citation | 212 Mont. 427,689 P.2d 243 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Robert Lee NORRIS, Defendant and Appellant. |
| Court | Montana Supreme Court |
Mike Greely, Atty. Gen., Dorothy McCarter, Asst. Atty. Gen., argued, Helena, Harold F. Hanser, County Atty., Theresa O'Connor, Deputy County Atty., Billings, for plaintiff and respondent.
Robert Lee Norris was convicted in the District Court, Yellowstone County, Thirteenth Judicial District, on jury verdict of two counts of sexual intercourse without consent and one count of aggravated kidnapping. On consideration of his appeal from those convictions, we affirm.
The principal issues raised by Norris on appeal are that the District Court had improperly allowed evidence of prior crimes committed with a person not the prosecutrix, and that the District Court improperly admitted rebuttal testimony to a fact issue not raised by the defendant Norris. Secondary issues are that the District Court improperly limited the scope of cross-examination of a witness not the prosecutrix, and that a cautionary instruction given by the court was legally insufficient.
We will set out a short statement of the facts from the record from the viewpoint of the prosecutor. On January 30, 1983, Ann Hanson, then 15 years old, went to a motel apartment for the purpose of babysitting the child of Lynn and Robert Norris. The babysitting job had been arranged by Ann's mother, who stipulated that Ann was not to stay in the motel apartment if she were alone with Robert Norris. Ann arrived at the motel at approximately 4:00 p.m., where Lynn and Robert were present. A friend of Norris', Carl Barnes, was at the motel when Ann arrived or he arrived shortly thereafter. Norris forced Ann to consume a substantial portion of a pint of whiskey. Lynn and Carl left the premises and in their absence, Norris committed by force two acts of fellatio and a rape upon her person, along with other sexual intrusions. Ann left the motel at approximately 8:00 p.m., reported to her mother what had happened, who brought her to the police. The charges against Norris resulted.
Medical examination of Ann immediately following the incident revealed she had sustained a blackened eye and a cracked rib.
Debbie Huck, age 19, testified that in August 1982, she had been called on the telephone by Norris to babysit at his motel. She had been told that he and his wife, Lynn, were going to a movie that night. When she got to the motel, in a taxi arranged by Norris, she found that Lynn was not at home. He started telephoning numbers to try to find Lynn and then started a conversation about Debbie being a model. She testified that through fear of him she partially disrobed and that eventually she was raped. He told her when she left that he would pay her $250. About a week later, she testified, she was called to the telephone by Norris, who told her to come to the motel to pick up the money. When she got there, when Lynn was also present, Norris injected her, again through her fear of him, with two shots of cocaine in her arms, and again raped and otherwise sexually assaulted her.
Other testimony revealed that Norris had been charged with sexual intercourse without In accordance with State v. Just (1979), 184 Mont. 262, 602 P.2d 957, 36 St.Rep. 1649, the State had given notice of its intention to call Debbie Huck as a witness in Norris' case. The defendant had sought to prohibit the testimony by a motion in limine, which the District Court first granted but during the course of the trial, after hearing Ann's testimony, reversed itself and permitted the testimony.
consent over the Debbie Huck incidents but that the charges had been reduced upon plea bargain, and he pleaded guilty to the misdemeanor offense of promotion of prostitution.
Norris contends that the admission of Debbie Huck's testimony was improper because it was not permissible under Rule 404(b), M.R.Evid., and that the Huck testimony does not meet the four-factor test of State v. Just, supra, in that the Huck testimony did not describe similar crimes or acts, did not reveal a common scheme or plan and its probative value was clearly outweighed by the prejudice to the defendant. The State answers that the Huck testimony tends to establish Norris' identity, his motive, scheme and modus operandi; that the probative value of Huck's testimony outweighs any prejudice suffered by Norris.
At issue is the applicability of Rule 404(b), M.R.Evid.:
Undeniably there are similarities between the Hanson and the Huck incidents. Hanson was lured by the defendant to babysit; Huck also came as a prospective babysitter. Each of the acts involving the girls took place at a motel. Hanson was forced to drink whiskey during her occurrence; Huck was not involved in alcohol or drugs in the first incident, but was forced to take cocaine injections in the second incident. Norris told Hanson he would give her money if she needed it; he offered to pay Huck $250 for the first incident, and lured her back to the motel a second time on the promise of paying her the $250. There are dissimilarities, it is true, in the kinds of acts that Norris practiced upon the girls when they had come under his power. Those dissimilarities do not occlude the apparent practice of Norris, with the acquiescence of or at least without objection from Lynn, an admitted prostitute, to lure young women to his motel apartment to ply them with alcohol or drugs and thereby accomplish his unlawful purposes upon them. Clearly in Montana, evidence of other crimes is admissible when proof is shown of similarity, nearness of time, identity, and tendency to establish a common scheme or plan of the crime charged. State v. Just, supra; State v. Jenson (1969), 153 Mont. 233, 455 P.2d 63; State v. Tully (1966), 148 Mont. 166, 418 P.2d 549.
In the State's case on rebuttal, Leonard Lamping was permitted by the District Court to testify that he had been confined in a jail cell in Yellowstone County with Robert Norris when Norris was subjected to the criminal charges concerning Debbie Huck. Here again, the District Court had originally granted Norris' motion in limine as to Lamping, but reversed itself to allow the testimony during State's rebuttal.
Lamping's testimony related to statements of Norris which included descriptions of how Norris' wife would help Norris lure young women into the business of prostitution, descriptions of the use of drugs by Norris during the process of "turning out" prostitutes, and a claim by Norris that he had "disposed" of a young girl who attempted to have Norris prosecuted.
Norris contends that the Lamping testimony was improper rebuttal evidence, that Lamping was a known "snitch," untrustworthy, and testifying for his own gain as a criminal defendant. Moreover, Norris During the State's cross-examination of Lynn Norris, in the defendant's case-in-chief, the following occurred:
claims that the trial court did not determine whether there were circumstantial guaranties of trustworthiness in Lamping's statements.
Following the above testimony, the State moved the court to reverse its ruling on the motion in limine with respect to Lamping. The State wanted to rebut the testimony of Lynn Norris, who had claimed the defendant had never forced anyone to be a prostitute or to make money for him. On that motion, the court allowed the testimony of Lamping.
The testimony from Lynn Norris in her cross-examination by the State in defendant's case-in-chief that her husband had never made her or other women "work the streets" came in without objection. That testimony raised an immediate issue as to the habitual routine of Norris, and...
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