State v. Statczar

• Decision Date: 06 October 1987
• Docket Number: No. 85-550,85-550
• Citation: 743 P.2d 606,44 St.Rep. 1668,228 Mont. 446
• Parties: STATE of Montana, Plaintiff and Respondent, v. Dale STATCZAR, Defendant and Appellant.
• Court: Montana Supreme Court

Page 606

743 P.2d 606

228 Mont. 446

STATE of Montana, Plaintiff and Respondent, v. Dale STATCZAR, Defendant and Appellant.

No. 85-550.

Supreme Court of Montana.

Submitted June 10, 1987.

Decided Oct. 6, 1987.

William Boggs (argued), Ferguson & Mitchell, Paulette C. Ferguson, Missoula, for defendant and appellant.

Mike Greely, Atty. Gen., Kimberly Kradolfer (argued), Asst. Atty. Gen., Helena, Robert Deschamps, III, Co. Atty., Missoula, Karen Towsend (argued), Deputy Co. Atty., for plaintiff and respondent.

TURNAGE, Chief Justice.

Defendant Dale Statczar appeals his conviction for sexual intercourse without consent. Defendant was charged by information on November 18, 1983. In January 1984, defendant was found unfit to proceed to trial in a competency hearing held pursuant to § 46-14-221, MCA. Following a second competency hearing in September 1984, the court reversed its earlier decision and found defendant Statczar fit to proceed to trial. Defendant's first trial in April, 1985 resulted in a hung jury. Defendant was convicted following his second trial in May and June, 1985. He was sentenced to twenty years in the Montana State Prison with fifteen years suspended.

We reverse.

Ten issues are presented for our review. Because we are reversing defendant's conviction, we limit our review to the following issues:

(1) Did the District Court err when it permitted the defendant's former attorney, John Riddiough, to testify at trial?

(2) Did the District Court violate defendant's right against self-incrimination when it permitted the State to call Dr. William Stratford to testify against defendant?

(3) Does substantial evidence support the District Court's determination that defendant was fit to proceed to trial?

(4) Did the District Court err when it denied defendant's motion for a mistrial based on alleged improper prosecutorial comments during closing argument?

The victim, J.R., testified as follows. In the early morning hours of October 16, 1983, she was attacked by two men outside a Circle K store located on Russell and Longstaff Streets in Missoula. Moments prior to the attack, J.R. made a phone call to her boyfriend, Lane Cunningham. J.R. and Cunningham argued during the telephone conversation. Cunningham eventually hung up on J.R. While J.R. was redialing Cunningham's phone number, the defendant approached her and asked if he could borrow some cigarettes. J.R. refused. After Cunningham hung up on J.R. a second time, she walked to her car for money for additional phone calls and more cigarettes. J.R.'s car was parked beside the Circle K store. As J.R. approached her car, two men grabbed her from behind and dragged her to another vehicle. She recognized one of her assailants as the man who had earlier asked for cigarettes.

After J.R. was dragged to the other vehicle, one of her assailants held her down, while the defendant moved on top of her. J.R. stated she was raped with an artificial device, "a penis that wasn't real." She also testified that the artificial penis was shoved into her mouth and she described biting it and causing no reaction in the defendant. J.R. was able to determine that defendant was wearing "some sort of bag" along his thigh. Finally, J.R. testified the defendant inserted several smooth stones in her vagina after defendant's accomplice asked if "he'd gotten his rocks off yet." J.R. was further assaulted and threatened by the two men before being pushed from the car. Testimony at trial established the above-mentioned attack took place between 2:30-3:00 a.m., with the most likely time of attack at 2:45 a.m.

At 3:14 a.m., 911 received a call from a woman who requested to remain anonymous, stating that she witnessed, approximately one-half hour previously, a rape or its aftermath at the Circle K store on Grant Avenue and South Avenue. The anonymous caller stated the victim had left the crime scene in a car. The caller further stated that she followed the victim to 14th Street, where the victim parked her car and disappeared on foot. The informant stated she stopped, looked in the car, and found a purse containing a slip of paper with two telephone numbers. She recited the numbers to the 911 operator. The telephone numbers belonged to Lane Cunningham and Delores Reno. In response to the call, a patrol car was dispatched to the Circle K at Grant Avenue and South Avenue. The officers found no evidence of a disturbance.

At 4:35 a.m., J.R. placed a call to 911. She reported that she was attacked after making a phone call at the Circle K store on Grant Avenue and South Avenue. Missoula City Police Officer Don Millhouse responded to J.R.'s call at 4:54 a.m. J.R. reported to Millhouse that she had "recovered" her car and purse. J.R. then changed her statement and told Officer Millhouse she was attacked near another Circle K store at Russell and Longstaff.

J.R. was taken to St. Patrick's Hospital. She was examined by emergency room personnel. J.R. had scratches around the chest, abdomen, and breasts and dirt around the perineal area, and "five roundish stones in the vagina, ranging in size from a quarter of one inch to two inches."

Later that afternoon J.R. told Detective Pete Lawrenson that her assailant was a white male, twenty-five to thirty years of age, 5'6" to 5'8" in height, with bushy sideburns and a mustache. She also stated that he had a plastic-like bag attached to his leg. She described the assailant's vehicle as a dark colored "car-like truck." The assailant was wearing a dark jacket with something silver, perhaps buttons, on the shoulder.

Detective Lawrenson contacted each Missoula urologist for information concerning a person matching this description. Dr. Bryan Olson responded that defendant Dale Statczar matched the above-mentioned description.

Detective Lawrenson presented J.R. with a six-person photo lineup including Statczar's photograph. J.R. identified defendant Statczar as her assailant.

Defendant was arrested eighteen days after the crime, on November 3, 1983. A dark blue Chevrolet "El Camino" belonging to defendant Statczar's brother was found outside defendant's home. Law enforcement personnel did not conduct a forensic test of the vehicle's interior. A search warrant for defendant's residence led to the seizure of a dark jacket with silver buttons and a plastic syringe which the defendant used for maintenance of his urine bag.

Defendant Statczar, at the time of his arrest, was twenty-three years old. When Statczar was nineteen years old, he was involved in a motorcycle accident leaving him impotent, without urinary function and with a stiff and disfigured left leg. Statczar spent approximately one and one-half years at St. Patrick's Hospital in Missoula recovering from his injuries. Testimony revealed that prior to his motorcycle accident Statczar possessed severe learning disabilities.

Statczar was sent on November 3, 1983, to the Montana State Hospital at Warm Springs for evaluation of his fitness to proceed. On January 18, 1984, following examination by Dr. Harry Xanthopoulos, chief psychiatrist at the Montana State Hospital, and Dr. Roy Hamlin, psychologist, the court found defendant unfit to proceed to trial.

A second competency hearing was held on September 14, 1984. Dr. William Stratford testified for the State. Dr. Xanthopoulos and defendant's attorney John Riddiough testified for defendant. The court found defendant competent and fit to proceed.

A three-week trial, held in April, 1985, resulted in a hung jury. A second trial, held from May 21 to June 5, 1985, resulted in defendant's conviction.

Issue 1

Did the District Court err when it permitted defendant's attorney, John Riddiough, to testify at trial?

During the September 14, 1984, competency hearing, defendant's second court-appointed attorney, John Riddiough, called himself to the witness stand. Riddiough testified in narrative form that he had great difficulty communicating with defendant Statczar. Riddiough stated that defendant had told him three different alibis concerning his whereabouts during the night and early morning hours of October 15 and 16, 1983. Riddiough testified, "Statczar related to me that he had little or no recollections of giving the previous stories ...". Riddiough also testified that Statczar did not appreciate the significance of the varying alibi stories:

My impression was that he believed wholeheartedly in the story that he had given me. My impression was that he was not giving me a story to attempt to come up with a better alibi as it were. He gave me the impression that, frankly, he seemed surprised when I confronted him with the previous alibi stories.

During Riddiough's testimony, Statczar remained seated at defense counsel's table. Defendant was not called to testify and did not object to Riddiough's testimony.

During the second competency hearing on September 14, 1984, Dr. Xanthopoulos and Dr. Hamlin testified that Statczar was suffering from organic personality syndrome, that he had an IQ of 75, and that he was functioning at a "borderline level." When asked what a judge's role is at trial, Statczar responded, "The judge is to wear a black robe and sit in front of the courtroom."

Riddiough withdrew as defense counsel following the District Court's finding that defendant was competent to stand trial. Riddiough was subsequently called to testify for the State. At trial, Riddiough testified that defendant had given three different statements concerning his whereabouts on the night and early morning of October 15 and 16, 1983. Riddiough testified that defendant made the following inconsistent statements: (1) that defendant went to a movie with his brother and sister-in-law in Missoula and (2) that he went to a birthday party with relatives in Ronan, and (3) that he stayed home alone in Charlo. During closing arguments, the State referred to Riddiough's testimony and argued that defendant had "lied" to his own attorney.

At trial, Riddiough...