State v. Pendergrass, 79-115

• Decision Date: 11 August 1980
• Docket Number: No. 79-115,79-115
• Citation: 37 St.Rep. 1370,615 P.2d 201,189 Mont. 127
• Parties: STATE of Montana, Plaintiff and Respondent, v. Billie Leon PENDERGRASS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 201

615 P.2d 201

189 Mont. 127

STATE of Montana, Plaintiff and Respondent, v. Billie Leon PENDERGRASS, Defendant and Appellant.

No. 79-115.

Supreme Court of Montana.

Submitted May 22, 1980.

Decided Aug. 11, 1980.

Peter M. Meloy argued, Helena, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Charles Graveley argued, County Atty., Helena, for plaintiff and respondent.

HASWELL, Chief Justice.

Defendant Billie Leon Pendergrass was convicted of attempted robbery and sexual intercourse without consent in October, 1977. The convictions were reversed by this Court and the case was remanded to the Lewis and Clark County District Court in October, 1978. State v. Pendergrass (1978), Mont., 586 P.2d 691, 35 St.Rep. 1512. (Hereinafter Pendergrass I.) A trial was held and defendant was convicted of sexual intercourse without consent. He again appeals.

Around midnight on June 26, 1977, the lone employee at Terry's Convenient Foods in Helena, Montana, was finishing her shift. She had let the last customer out the front door, locked it, shut off the outside lights, and was standing at the checkout counter writing a note to her employer. Suddenly, she was grabbed from behind by someone who put his right arm around her waist and his left arm around her shoulder, covering her face with his left hand which held a knife. A male voice told her not to scream or fight.

While forcing her to the back of the store, the man asked the girl where the key was. Thinking that the man intended to rob the store, she replied that the safe was a combination safe. He asked the combination and whether there was any money left in the cash registers.

The man then forced her into a restroom in the rear of the store and raped her. The girl, who had been told in a college course that a victim of such an assault should make every effort not to see her attacker, to minimize the danger of reprisal should he later fear he might be identified, kept her eyes averted and her hands over her face throughout the entire incident. She does not know what her assailant looked like.

The victim testified that she was grabbed at approximately 12:05 a. m., that it took less than five minutes for the man to force her to the back of the store and that the rape lasted perhaps ten minutes.

After the rape, the man bound the girl's hands and feet with tie strings from a grocery apron and asked her where the key to the front door was. She told him the key was on the counter. He left her lying on the restroom floor. After two unsuccessful attempts to find the key, he finally located it and left. The girl, still bound and unclothed, hopped to the front of the store and contacted the police by telephone. It was 12:34 a. m.

When police officers arrived at the scene of the crime, a resident of the area informed them that an unfamiliar red pickup truck had been parked in front of his home. He later testified that he noticed the truck at approximately 11:30 p. m., that it was still present at approximately 12:10 a. m. or 12:15 a. m., and that it was no longer in the area at approximately 12:30 a. m. when he heard police sirens. Another witness testified that immediately after hearing the police report on his scanner he saw a reddish truck proceeding toward East Helena. At approximately 2:30 a. m. the police, accompanied by the witness who had first described the truck, located the vehicle in an alley in East Helena.

Several witnesses placed this truck in the 1800 block on Ninth Avenue, one block south of the scene of the crime, between 11:30 p. m. and 12:20 a. m. the period of time in which the crime occurred. One of these witnesses testified that he left his home to walk to Terry's Convenient Foods, a distance of one block at approximately 11:30 p. m. On his way home he noticed a sparkly reddish pickup truck "cruising very slowly" along Ninth Avenue. The witness characterized the movements of the truck as "sort of peculiar." He saw a well-muscled, stockily-built caucasian with high check bones and collar length light brown hair get out of the truck and walk towards Terry's. The witness then recorded the truck's license number, 5T-11046. This general description matches that of the defendant, and the defendant is the registered owner of a truck with that license number. The witness later told a police officer that he was not sure that he would recognize the person if he saw him face to face. However, when this witness was shown a photographic array, he selected the defendant's picture as the one in the selection of six which "most closely resembled the man I saw get out of that truck." On cross-examination of this witness, defense counsel brought out that each of the persons in the photographs not selected had different features than the defendant. These distinguishing characteristics included eyeglasses, different hair color, different hair lengths, and different builds.

Another witness testified that he saw a man behind the counter at Terry's when he drove past the store at approximately 12:15 to 12:20 a. m. He described the man as being fairly tall, but under six foot, with collar length, sandy brown hair.

Medical evidence obtained from testing semen stains on the victim's clothing and from testing samples taken in a physical examination of the victim shortly after the crime, reveals that the perpetrator was a type "A" blood type and a secretor, as is the defendant. However, 32% of the male population are type "A" secretors.

On July 13, 1977, defendant was charged with the crimes of attempted robbery and sexual intercourse without consent in the Lewis and Clark County District Court.

The case came on for trial on October 3, 1977. On October 7, 1977, a jury found defendant guilty of both offenses. In a judgment entered on November 4, 1977, the District Court sentenced defendant to the Montana State Prison for 20 years for the crime of sexual intercourse without consent, and 40 years for the crime of attempted robbery, the sentences to run consecutively.

This Court reversed the convictions and remanded the case for retrial, holding that a tape recording of the victim's telephone call to the police for assistance was unduly prejudicial under Rule 403, Mont.R.Evid.

At the commencement of the second trial, on January 22, 1979, the handcuffed defendant was led past the jury panel in the hallway outside the courtroom by officers of the Lewis and Clark County sheriff's office. Immediately thereafter, the defendant's motion for a mistrial was denied.

The following "omnibus" jury instruction was given without objection:

"You are instructed that evidence is to be considered not only by its own intrinsic weight, but also according to the evidence which is within the power of one side to produce and of the other to contradict; and therefore, if weaker and less satisfactory evidence is offered, when it appears that stronger or more satisfactory could have been produced, the evidence offered should be viewed with distrust."

The defendant did not take the stand nor call any witnesses. A motion for directed verdicts on both charges was denied. The jury found the defendant guilty of sexual intercourse without consent and not guilty of attempted robbery. He was sentenced to 20 years in the Montana State Prison.

The following issues have been raised on appeal:

1. Whether the photographic identification procedures were constitutionally infirm.

2. Whether it was reversible error for the trial court to deny the defendant's motion for a mistrial because the state had caused the defendant to appear in handcuffs before the jury panel.

3. Whether it was reversible error for the court to deny the defendant's motion for a directed verdict on the grounds that there was not sufficient evidence to support the charge of sexual intercourse without consent.

4. Whether it was reversible error for the trial court to instruct the jury to view weaker evidence with distrust when it appears stronger evidence was available.

The photographic identification issue was raised in Pendergrass I and disposed of as follows:

"For the guidance of the District Court on retrial, we address the remaining issues which may recur at the second trial.

"Defendant contends that the pretrial photographic identification procedure and the trial identification of the defendant violated his due process rights. He argues that of the array of photographs shown the witness prior to trial, only his photograph matched the description the witness had previously given the police.

"We have examined the array of photographs and find defendant's contention without substance. His photograph is not the only photograph matching the description previously given by the witness. The array is not unduly suggestive in our view. '. . . (u)nless the error is obvious and the prejudice clear, the defendant's remedy is in effective cross-examination with the identification question then becoming one of weight to be determined by the jury and not one of admissibility.' State v. Miner (1976), 169 Mont. 260, 546 P.2d 252, 256, 33 St.Rep. 201. We find no error here." Pendergrass I, 586 P.2d at 695, 35 St.Rep. at 1516.

The defendant, in this appeal, contends that the cross-examination of the identifying witness in the second trial, establishes that the identification procedures were unduly...