State v. Pope, 00-048.

• Decision Date: 02 December 2003
• Docket Number: No. 00-048.,00-048.
• Citation: 80 P.3d 1232,2003 MT 330
• Parties: STATE of Montana, Plaintiff and Respondent, v. Vance Leon POPE, Defendant and Appellant.
• Court: Montana Supreme Court

80 P.3d 1232

2003 MT 330

STATE of Montana, Plaintiff and Respondent, v. Vance Leon POPE, Defendant and Appellant.

No. 00-048.

Supreme Court of Montana.

Argued and Submitted June 19, 2003.

Decided December 2, 2003.

For Appellant Chad Wright (argued), Appellate Defender Officer, Helena, Montana.

For Respondent Mike McGrath, Attorney General; Cregg W. Coughlin (argued), Assistant Attorney General, Helena, Montana Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 The Defendant, Vance Pope (Pope), was convicted of sexual intercourse without consent and kidnapping on June 29, 1994, in the District Court for the Fourth Judicial District, Missoula County. He filed a petition for postconviction relief on September 8, 1999. The District Court denied that petition and he appealed. We reversed the District Court and remanded his petition for a full evidentiary hearing. Following the hearing, the District Court determined that Pope did not prove sufficient facts to overcome the five year statute of limitations and concluded that Pope's petition for postconviction relief was statutorily barred by § 46-21-102, MCA (1993). Pope appeals from that order. We reverse the judgment of the District Court and remand for a new trial.

¶ 2 The sole issue on appeal is whether the District Court was correct when it concluded that Pope's petition for postconviction relief was barred by § 46-21-102, MCA (1993).

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On December 17, 1993, Pope was charged with sexual intercourse without consent and kidnaping. Two women, A.J. and M.J., alleged that Pope and co-defendant, Randy Plumley (Plumley), forced them to engage in sexual intercourse and restrained them against their will on or about November 29, 1993.

¶ 4 An amended information was filed against Pope on April 21, 1994. The amended information provided in part:

COUNT I: On or about November 29, 1993, the above-named Defendant knowingly had sexual intercourse without consent with Jane Doe and/or Susan Doe. Both suffered bodily injury.

COUNT II: On or about November 29, 1993, the above-named Defendant purposely or knowingly and without lawful authority restrained Jane Doe and Susan Doe by using and/or threatening to use physical force.

¶ 5 Simultaneously, Pope entered a plea agreement with the State. He agreed to give a truthful account of the events that took place on November 29, 1993, and testify against Plumley in exchange for concurrent ten year sentences on the two counts, designation as a non-dangerous offender, and a recommendation that his sentence be served without the possibility of parole until sexual offender and alcohol counseling were completed. ¶ 6 Pursuant to the plea agreement, Pope made a sworn statement of the facts on April 21, 1994. The interview was conducted by Detective Dave Fowlkes and County Attorneys Karen Townsend (Townsend) and Robert Zimmerman. Townsend made the following statement before Pope recounted the events that took place on November 29: "Okay, and do you understand that what we are asking for in this statement is the truth about the facts of November the 29th, and that ah, that this statement if the plea doesn't go through will not be used against you in any court proceeding, do you understand that?" Pope answered in the affirmative.

¶ 7 During that interview, Pope testified that he and Plumley met A.J. and M.J. while partying at Connie's Lounge in Missoula. According to his story, everyone was intoxicated and the women were flirting with him. A group of people including Pope, Plumley and the women moved the party to a hotel room when the bar closed down. The group continued to consume hard liquor. Following an altercation between Pope and another man, the police arrived and the party was broken up. Pope and Plumley agreed to give A.J. and M.J. a ride to Elmo, Montana. Pope was driving the vehicle.

¶ 8 During the drive, Pope claims that he asked A.J., who was in the passenger's seat, to perform oral sex on him. He maintains that A.J. willingly performed oral sex on him. Soon thereafter, Pope and A.J. realized that Plumley was in the rear seat forcing M.J. to have sex with him. A.J. became frantic when she realized what was happening and burned Pope's face with a dash board cigarette lighter. Pope hit her for burning his face and then A.J. jumped out of the vehicle while it was still moving.

¶ 9 Pope pulled the vehicle over to let Plumley drive and saw M.J. in the back seat. At this time he had intercourse with her. When asked whether M.J. willingly engaged in sex with him, Pope stated:

Not to [Plumley], no. Then when I got out of the car and she sees me standing there, I looked down at the car and ah she said with a really, I know she was just doing it out of fear.... But she looked up at me and says I suppose you want some of me too.

....

The fact of the matter is my friend [Plumley] beat and raped [M.J.] in the back seat, [A.J.] got scared and jumped out of the fucking car, and then I made the stupid ass mistake of violating [M.J.] when she was laying there vulnerable.

¶ 10 A plea hearing was held that same day, at which time Pope testified that he engaged in sexual intercourse without consent with M.J. on November 29, 1993. When asked what he was pleading guilty to, Pope stated:

Ah, picked some girls up and were driving down the interstate with them, and my co-defendant had raped one of the girls in the back seat, and I got out to urinate, and she looked up, and because she was scared she asked if I would like some of her, too, and I knew she was just doing it to fear for her life, and I proceeded to hop in back and violated her.

¶ 11 The District Court refused to accept the terms of the plea agreement and Pope was permitted to withdraw his guilty plea. Subsequently, a jury trial was held on June 27, 28 and 29, 1994.

¶ 12 At trial, A.J. testified that she fell asleep in the vehicle after the four left the hotel room in Pope's vehicle. She awoke to M.J.'s plea for Plumley to stop. When she turned around Plumley was on top of M.J. with his pants down. She attempted to stop Plumley and asked Pope to stop the car, but Pope began assaulting her. At that time he forced her to perform oral sex on him. A.J. testified that she retaliated and burned Pope's face with the vehicle's dashboard cigarette lighter. Pope then became angry. He told her to take off her pants and she jumped out of the vehicle instead.

¶ 13 On direct examination, M.J. testified that when she was in the back seat with Plumley he forced her to perform oral sex on him and then forced her to have sex with him. M.J. also testified that she witnessed Pope force A.J. to perform oral sex, although she did not hear what was said in the front seat. She was not certain if Pope was in the back seat with her at any time and could not remember if the two engaged in sex.

¶ 14 Julie Long (Long), a forensic serologist, testified as to the physical evidence that was collected in M.J.'s "rape kit." The rape kit, which was collected following M.J.'s arrival at the hospital, consisted of several articles of M.J.'s clothing, blood samples taken from M.J., and the results from a vaginal swab taken from M.J. Long also testified regarding standard kits submitted by Pope and Plumley. Based on this evidence, Long testified that M.J. had ABO type O blood and both Pope and Plumley had ABO type A blood, but Pope was an A secretor while Plumley was a non-secretor. A "secretor" is a person whose blood type can be detected in his or her saliva, semen, and vaginal fluids. Long explained that the presence of type A blood in semen samples taken from M.J.'s clothing would indicate that Pope was the source of the substance.

¶ 15 Consequently, Long attributed various semen samples taken from M.J.'s rape kit to Pope because those samples tested positive for type A blood. She made the following statements at trial:

Out of these three people, Mr. Pope is the only one that could be the source of these three people that were sampled, because he is the only one that is an A secretor in these three individuals here.

....

The presence of the A substance, yes, has to come from the semen donor, and with just these two male individuals that would just be Mr. Pope.

¶ 16 Long acknowledged that the DNA tests performed by Cellmark Diagnostics (Cellmark) on M.J.'s underwear were incomplete at the time of trial. The report submitted at trial did not indicate the presence of Pope's DNA in the vaginal swab or on the underwear. The report indicated that when the testing was completed another report would be issued that may provide additional information with regard to the DNA found on M.J.'s underwear.

¶ 17 Witnesses from the hospital who treated the women following the incident testified as well. Hospital personnel specifically testified as to the emotional and physical state of the women when they arrived at the hospital. All of the testimony indicated that the women were in an excited state and upset about one another and the events that had unfolded that evening. Sheriff's department personnel who interviewed the victims and Pope also testified about those interviews and the evidence gathered for the case.

¶ 18 Pope did not testify at trial. The defense theory was that the encounter with both women was consensual and that the story told by them was unreliable. The theory focused on inconsistencies in the women's personal accounts of the evening, the inconsistencies in their stories throughout the prosecution, and the level of their intoxication.

¶ 19 The following instructions were given to the jury:

To convict the defendant of sexual intercourse without consent with [M.J.] and/or [A.J.], the State must prove the following elements:

1. That the defendant subjected [M.J.] and/or [A.J.] to sexual intercourse and without consent;

2. That the act of sexual intercourse was without the consent of [M.J.] and

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