State v. Pelletier

Decision Date06 October 2020
Docket NumberDA 19-0218
Citation401 Mont. 454,473 P.3d 991,2020 MT 249
Parties STATE of Montana, Plaintiff and Appellee, v. Shane Thomas PELLETIER, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Lance P. Jasper, Reep, Bell, Laird & Jasper, P.C., Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana Kirsten H. Pabst, Missoula County Attorney, Brian C. Lowney, Deputy County Attorney, Missoula, Montana

Justice Dirk Sandefur delivered the Opinion of the Court.

¶1 Shane Thomas Pelletier appeals his judgment of conviction in the Fourth Judicial District Court, Missoula County, on the offense of sexual intercourse without consent (SIWC), a felony, in violation of § 45-5-503, MCA. We address the following restated issues:

1. Whether the District Court erroneously allowed the State to cross-examine Pelletier regarding an unsubstantiated 2003 SIWC allegation for the purpose of rebutting his self-serving good character testimony?
2. Whether the District Court erroneously precluded Pelletier from impeaching the testimony of the State's complaining witness with evidence of marijuana use prior to reporting the alleged offense?
3. Whether Pelletier received ineffective assistance of counsel based on defense counsel's failure to challenge his fitness to proceed and assert a mental disease or disorder defense at trial?

We reverse and remand for a new trial.


¶2 By Information filed August 23, 2017, the State charged Pelletier with subjecting a 20-year-old female (M.V.) to SIWC in his downtown Missoula apartment on July 6, 2017. Prior to the alleged offense, M.V., her boyfriend, a girlfriend, and a female cousin were drinking "Fireball" whiskey from a bottle at Caras Park in Missoula around 11:00 at night. Extremely intoxicated following several "giant swigs" of whiskey, M.V. walked with her girlfriend down to the bank of the Clark Fork River to put their feet in the water.

Fully clothed, M.V. waded out further and later came out soaking wet from head to toe. When the group started back to the tent area of the park, M.V. ran ahead and was not present when the others arrived. After searching for several hours in downtown Missoula, they were unable to locate her.

¶3 At some point around or after midnight, Pelletier was on the sidewalk outside his downtown apartment when he heard somebody vomiting in the city parking garage across the street. He later found M.V. vomiting in the parking garage stairwell and asked if she needed assistance. He recalled that she declined his initial offer of assistance but ultimately accepted a subsequent offer to come over to his apartment for some food and water to help sober up. After walking over to Pelletier's apartment,1 M.V. showered and, according to his account, drank some water and had something to eat. The accounts of M.V. and Pelletier varied sharply from there, but both agree that sexual intercourse eventually occurred.

¶4 At trial, M.V. testified that she had little or no recollection of what happened after she left the park. She said that her next recollection was waking up confused in a strange apartment with an unknown man on top of her with his penis in her vagina. She testified that she then passed out and had no further recollection until the next morning when she was sitting on a bed in her panties and bra, with a naked man standing in front of her trying to put his penis in her mouth. She testified that she immediately pushed him away and that he became "flustered" and "panicked." She said she then asked who he was, where she was, how she got there, and where her clothes were. She testified that Pelletier told her that he found her in the parking garage covered in vomit and that he walked her to his apartment to help. She said that he then retrieved her clothes and she found her pants to be soaking wet and her sweater covered in vomit.

¶5 M.V. testified that, at that point, she was still confused, scared, without her cell phone, and told Pelletier she needed to leave to go to work. She said that he offered to walk her to the bus station and that she consented because she was afraid to say no. She then walked with him to the nearby station where he wrote his telephone number on her arm and bent in to hug her goodbye. She recalled not wanting him to touch her, but politely reciprocating with one arm. She further explained:

I was confused at the time, and I didn't know what was going on and so I thought what had happened, like, was my fault, and that I wanted it to happen.

She said she just wanted to go home and got on the bus with the feeling that she was in "a bad dream." Upon arriving at her apartment, M.V. told her roommate that she had just been raped. At 8:33 a.m., she sent a text message to the girlfriend who was with her at Caras Park the night before. The text stated that she was raped, could not recall what happened, and asked the friend what happened.

¶6 Later that day at her apartment, M.V. discussed the events of the night before with her boyfriend and the friend who was with them. At her boyfriend's urging, she accompanied him to the police station around 5:00 p.m. to report the alleged rape. After taking her report, a police officer took M.V. to a third-party sexual assault examiner. At trial, the examiner reported observing tenderness and redness about M.V.’s vulva—conditions often indicative of forced penetration, but not necessarily inconsistent with consensual intercourse. Subsequent DNA analysis of a vaginal swab taken from M.V., and a saliva swab later obtained from Pelletier, confirmed the presence of his semen in her vagina the day after the incident.

¶7 Upon subsequent police inquiry, Pelletier admitted that he had sexual intercourse with M.V. but asserted that it was consensual. He initially asserted that she initiated the sex by kissing him and that he sought and obtained her consent before engaging in intercourse. Later in the interview, however, he inconsistently stated that he awoke in the night with M.V. on top of him engaged in intercourse. At trial he testified that, after having something to eat and drink at his apartment, M.V. was "flirting" with him before laying-down on his bed in her bra and panties and passing out. He said that he covered her with a comforter and got into bed with her and went to sleep. He testified that, after waking in the morning, they briefly spoke which led to kissing and then consensual intercourse. He said he later walked her to the bus station "to be a gentleman" and wrote his number on her arm, but did not hear from her.

¶8 At the pretrial Omnibus Hearing, defense counsel gave the State notice of intent to raise a mental disease or disorder defense asserting that, as a result of a mental disease or disorder, Pelletier did not have the requisite mental state for the charged offense.2 Prior to trial, defense counsel obtained a confidential mental health evaluation that concluded that Pelletier suffered from a form of schizophrenia at the time of the alleged offense. However, counsel did not ultimately disclose the report to the State, challenge Pelletier's fitness to proceed, or assert a mental disease or disorder defense at trial.

¶9 At trial, Pelletier testified on direct, inter alia , that M.V. was fully conscious throughout their sexual encounter and that it was completely consensual. Upon acknowledging to defense counsel that some of the details he gave to police in his post-arrest interrogation were not entirely accurate or consistent with his trial testimony, Pelletier explained:

I think -- because of being surrounded at my house unexpectedly by the U.S. Marshals, ... I know it was because of being slandered and charged with this charge because it's ... one of the worst things that a man can get charged with. And I'm just not that kind of guy. I would never do that to a female. So it was kind of ... disturbing.

On the record outside the presence of the jury, the State subsequently stated its intent to cross-examine Pelletier regarding the fact that a 14-year-old female acquaintance alleged to police in 2003 that the 15-year-old Pelletier subjected her to sexual intercourse without consent. The SIWC allegedly occurred after the two had engaged in consensual sexual foreplay and Pelletier ignored her command to go no further. The State asserted that the mere fact of the 2003 allegation was relevant to rebut his testimony on direct that he was not the kind of person who would engage in non-consensual sexual intercourse and "would never do that to a female." The State reasoned:

He put his character at issue and said that he was not the kind of person that would engage in this kind of offense. It is basically the whole defense. So it's absolutely probative of the issue.

¶10 Over Pelletier's relevance and prejudice objections, the District Court ruled his testimony that he was "not that kind of guy" and "would never do that to a female" put his good character at issue, thereby opening the door under M. R. Evid. 404(a)(1) to cross-examination regarding the 2003 allegation for the purpose of rebutting his good character testimony. The Court concluded that a limited question regarding the fact of the occurrence of the prior allegation would not be unfairly prejudicial under M. R. Evid. 403 with an appropriate limiting instruction. The following colloquy then ensued on cross-examination:

[State]: You ... said [on direct] that you felt "slandered." That you would never do anything like this, and you're not that type of person; is that right?
[Pelletier]: I did say that.
[State]: Your Honor, I think this is the time for the [limiting] instruction perhaps.
[Court]: All right. Ladies and gentlemen, the State will now offer evidence that the Defendant at another time engaged in other acts. This evidence is not admitted to show that the defendant acted in conformity

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