State v. Pendergrass

• Decision Date: 22 November 1978
• Docket Number: No. 14128,14128
• Citation: 586 P.2d 691,179 Mont. 106
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Billie Leon PENDERGRASS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 691

586 P.2d 691

179 Mont. 106

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

No. 14128.

Supreme Court of Montana.

Submitted Sept. 11, 1978.

Decided Oct. 30, 1978.

Rehearing Denied Nov. 22, 1978.

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

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

HASWELL, Chief Justice.

Defendant appeals from his conviction of attempted robbery and sexual intercourse without consent following a jury trial in the District Court of Lewis and Clark County.

Around midnight on June 26, 1977, the lone employee at Terry's Convenient Mart 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 the man intended to rob the store, she replied, "It's 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.

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. 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. When a description was radioed in by the officers, a party in East Helena overheard the transmission on a scanner unit and thought he recognized the truck as being one from his neighborhood. He notified the city police. At approximately 2:30 a. m. the police, accompanied by the witness who had first described the truck, located the vehicle in an alley adjacent to defendant's residence.

Several witnesses placed this truck in the 1800 block on Ninth Avenue, one block south of the scene of the crime, during the period of time in which the incident occurred. One of these witnesses recorded the license plate number at that time. The recorded number matched that of plates issued to defendant. Defendant claimed to have been at his East Helena home at the time of the crime. Defendant's alibi was corroborated by three witnesses: his fiance, his half-brother, and the half-brother's girlfriend, all who claim to have been present with him at his home during the time in question.

On the afternoon of June 27, 1977, some 32 hours after the incident had occurred, the victim of the assault was asked to come to the Helena police station. She was told that the suspect in the crime was going to be questioned, and was given the opportunity to overhear the conversation. The suspect and an officer were on one side of a room divided floor-to-ceiling by filing cabinets, with the girl stationed on the other side. The officer interrogated the suspect as to his activities on the night in question. The suspect was not asked to repeat any phrases that the victim had said her assailant used. He was not informed that the victim of the crime of which he was suspected was listening. When the girl was asked her opinion of the voice, she replied either "I think that is the voice", or "I believe that is the voice." The voice was that of defendant.

Approximately one week after the crime, a police officer contacted a witness who had seen an individual park and step out of a red pickup just before midnight on the evening of the occurrence. The witness observed the individual from across the street as the man walked from the truck and around the corner to Terry's Convenient Mart. The witness saw only the man's profile, but noted that he was stocky, with thick features, high cheekbones, and collar length hair.

A selection of six photographs was shown to the witness and he picked one out, explaining that "If I saw the individual face-to-face on the street I may not recognize him", but that the photograph he picked "most resembled the person I saw on that evening". The photograph was from the driver's license of defendant.

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

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.

Defendant seeks reversal on the following grounds:

(1) That a tape recording by the police of the victim's call for assistance immediately following the incident should not have been admitted in evidence and played to the jury.

(2) That the pretrial photographic identification procedure violated defendant's due process rights and the identification of defendant thereby was inadmissible in evidence.

(3) That a photograph taken of defendant 18 days after the incident should not have been admitted in evidence.

(4) That the victim's voice identification was inadmissible in evidence.

(5) Insufficiency of the evidence to support defendant's conviction of attempted robbery.

Defendant contends that the tape recording by the police of the victim's telephone call for assistance immediately following the incident should not have been admitted in evidence and played to the jury. He argues that it had no probative value, but simply created sympathy for the victim without redeeming relevance to any issue in the case. He claims that the highly emotional nature of the recording created a climate of outrage in the minds of the jury denying him a fair trial.

The State argues that the tape was admissible to prove that a rape had occurred and bolstered the victim's credibility, her attention to detail, her ability to recall, and whether she had been placed in fear of her life. The State claims the tape is admissible as a public record or report under Rule 901(b)(7), Mont.R.Evid.

The trial court admitted the tape as evidence that the victim had been raped.

It is true that the tape tends to prove that the victim had been raped. She said she had been raped in the taped telephone call to the police. The tape shows that she reported the rape to the police immediately after it occurred. It shows that the victim was fearful that the perpetrator might return before the police arrived.

The State was required to prove that the victim had been raped. The State had overwhelming evidence of this fact aside from the tape at the time it offered the tape in evidence. The testimony of the victim, the medical evidence, the fact the victim was bound and was unable to free herself, the circumstances and locale of the crime, and the victim's clothing irrefutably proved a prima facie case of rape. This evidence was subsequently introduced by the State in its case-in-chief.

The credibility of the victim or the occurrence of the rape was never attacked by defendant. The defense was alibi that defendant was elsewhere at the time of the crime and could not have committed it. This defense was noticed and known to the State in advance of trial.

The tape was highly prejudicial to defendant. Aside from any relevance heretofore pointed out, it contained emotional and nearly incoherent outpourings of the victim in the immediate aftermath of a violent crime. These utterances necessarily induced a feeling of outrage against the defendant and sympathy for the victim. Undue prejudice against defendant was created and a fair trial climate was destroyed by this tape.

At the suppression hearing, the trial judge first ruled the tape inadmissible. He recognized its inherent prejudice in these words:

"This is as highly inflammatory a thing as you could get before a jury and I think its probative value right now is nil . . . There may be room for doubt as to whether or not the victim was raped. If it appears at any time during the course of the trial, either during the State's case in chief, but particularly during the defense case in chief, we will permit this to be used in rebuttal, but that is the only probative value I can see . . ."

Later the trial judge reversed himself and admitted the tape. He stated the basis for his ruling in this language:

"The State is entitled to prove by whatever evidence they can get, each and every necessary part of the crime. One part of the crime is, of course, whether or not a rape was committed. Rape is a crime of outrage. Rape is a crime of hysteria and the State must be permitted to prove that with evidence and so the former ruling of the court that the transcript was irrelevant is erroneous."

We hold the admission of the tape in evidence under the circumstances of this trial was reversible error. Rule 403, Mont.R.Evid., provides that " although relevant, evidence may be excluded if its probative value is substantially outweighed...