Preview:

Nos. 80-142 & 80-323
IN THE SUPREME COURT OF THE STATE OF MONTANA 1980
THE  STATE OF MONTANA,  
Plaintiff  and  Respondent,  
VS.  No.  80-142  
EDWARD DENNIS HIGLEY  
Defendant  and Appellant,  

Appeal from: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Joseph B. Gary, Judge presiding.
THE STATE OF MONTANA,
Relator,
VS. No. 80-323
THE DISTRICT COURT OF THE
THIRD JUDICIAL DISTRICT et al.,

Respondents.
ORIGINAL PROCEEDING
Counsel of Record:
For Appellant:
Larry W. Moran and Michael M. Nash, Bozeman, Montana Michael M. Nash argued, Bozeman, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana Mark Murphy argued, Asst. Atty. General, Helena,
Montana Donald E. White, County Attorney, Bozeman, Montana Michael Lilly argued, Deputy County Atty. , Bozeman,
Montana
Submitted: November 25, 1980
Decided: DEC 5 7 198Q
Filed: gF@1'7 1980
-+."fi,,, -
"' 9'9'.,
t'7tLqt:t:
pi.,,j '+.,,;ji;';p!
Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Defendant was convicted in District Court, Gallat in County, of kidnapping and sexual intercourse without consent. He was sentenced to ten years in the State Prison on each count, to be served concurrently. The defendant appealed the conviction and while the appeal was pending, he applied to the district judge, Powell County, for bail pending appeal. The motion was granted and defendant was released from prison. The Gallatin County Attorney applied to this Court for a writ of supervisory control, asking this Court to find that the district judge, Powell County, was without jurisdiction to admit defmdant to bail. We consolidated the appeal and the application for the writ. We affirm the conviction and deny the State's application for the writ, finding the issue of bail pending appeal to be moot by reason of our decision to affirm the conviction. On June 29, 1979, at about 1:30 a.m., Lynette Church left a bar in downtown Bozeman and began walking toward her home. Near the hospital on North Willson, a man jumped from behind a hedge and grabbed her, knocking off her glasses. She screamed, and he clapped a hand over her mouth. She was forced into his car and he drove to a secluded spot in Bridger Canyon. During the drive, and at the stopping point in the Canyon, the defendant forced her to engage in various acts of vaginal and oral sex. During the activity, Linnie noticed a wallet lying on the ground. She slipped it under her coat, which defendant had ordered her to place on the ground before engaging in intercourse. She even-tually managed to get the wallet into her pocket. At about 3:00 a.m., the defendant dropped Lynette off in downtown Bozeman and she walked home. At home she called the Bozeman Help Center and later went to the hospital with members of the Help Center's Rape Outreach Team. Prior to going to the hospital, Linnie examined the wallet
and found a driver's license with a picture. She determined that
this was a picture of the man who had attacked her. At the hospital she gave the wallet to Ron Green of the Bozeman police department. He showed her the wallet photograph and Linnie positively identified the individual in the picture as her assailant. Pursuant to a search warrant, the Bozeman detectives searched the defendant's car and found a portion of a fingernail, and pubic hair belonging to the victim.
Defendant was arrested on Friday, June 29, 1979, and appeared before the Justice of the Peace on that day. On Monday, July 2, defendant's attorney requested that a preliminary exami- nation be held that afternoon. The State objected and no exami-nation was held. The defendant made no further request, and was released on bond on July 3, 1979. An information was filed in District Court on July 10, 1979, and defendant filed a motion to quash. The motion was denied.
Trial commenced on October 10, 1979, and defendant was found guilty on October 15. The defendant was sentenced on November 9, 1979, following an interview between the judge and the victim as to her feelings about the appropriate sentence. The defendant was not designated "dangerous" or llnon-dangerous" until four months later, following the filing of a psychiatric report by the Department of Institutions.
Defendant raises thirteen issues on appeal:
1.
Is a defendant entitled to a preliminary examination if an information has not been filed within ten days af ter his arrest?

2.
Is a pretrial photographic identification by the victim, utilizing only one photograph, so suggestive as to require suppression of any in-court identification?

3.
Is the defendant denied his constitutional right to confront his witnesses, by operation of section 45-5-503 (5), MCA, precluding evidence of the victim's sexual conduct, and Rule 608, Mont.R.Evid., precluding testimony as to specific instances of a


witness1 conduct and certain cross-examination?
4.
May the District Court allow introduction of evidence at trial which was not specified in the order drawn up following an omnibus hearing?

5.
Was the defendant entitled to a cautionary Smith-type instruction, because the substantive facts were in question at trial and there was scanty medical evidence of intercourse?

6.
Is defendant entitled to an instruction as to the necessity that the victim manifestly objected to the act of inter-course?


7. Does the evidence support the verdict?
8.
Is the district judge permitted to interview the vic- tim on the issue of sentencing without allowing the defendant to cross-examine the victim?

9.
Did the district judge err in denying defendant a new trial, when defendant was able, after trial, to produce evidence of mental disease or defect?

10.
Was defendant denied his due process rights by the use of incorrect information at sentencing?

11.
Does defendant have a right to be present at post-conviction proceedings?

12.
Was the failure to designate defendant as "dangerous" or "non-dangerous" for four months a violation of defendant's right against cruel and unusual punishment and a violation of the prohibition against uncertain or indefinite sentencing?


13. Was defendant denied his right to a transcript on
appeal?

Defendant was arrested on Friday, June 29, 1979, and made an initial appearance before the Justice of the Peace that day. On Monday, July 2, his attorney contacted justice court and requested that a preliminary examination be held that af ternoon. The county attorney received oral notice that a hearing would be held that day. The State objected to the hearing on such short notice and it was not not held. Defendant made no further request and he was released on bond on July 3. The county attorney filed an information in District Court on July
Defendant contends that he has a right to a preliminary exam if he has not waived it or if the District Court has not pre-viously granted leave to file direct. The right to a preliminary examination arises under section 46-7-103, MCA:
Preliminary hearing in justice's court. After the initial appearance a justice's court shall, within a reasonable time, hold a preliminary examination unless the defendant waives a preli-minary examination, the district court has granted leave to file an information, an indict-ment has been returned, or the case is triable in justice's court. (Emphasis added.)
The purpose of the preliminary hearing is to determine whether there is probable cause to believe that a felony has been committed. Section 46-10-101, MCA. The probable cause deter-mination may be made in a preliminary examination in justice court, or it may be made by application to the District Court judge, presenting by aff idavit such evidence as the judge may require. Section 46-11-201, MCA. The only requirement is that there is an independent judicial determination of probable cause and the defendant has no vested right to either procedure. Gerstein v. Pugh (1975), 420 U.S. 103, 120, 95 S.Ct. 854, 866, 43 L.Ed.2d 54, 69; State v. Dunn (1970), 155 Mont. 319, 325, 472
Many states set forth precise time limits within which the
State must hold the preliminary examination if the District
Court has not granted leave to file an information. The federal
statute provides: "such examination shall be held within a reaso-nable time but in later tEan 10 days following the initial appearance if the
-
defendant is in custody and no later than20 days if he is not in custody, provided, however, that the preliminary examination shall not be held if the defendant is indicted or if an information against the defendant is filed in district court. . ." (Emphasis added.) 18
U.S.C. Fed.R.Crim. P. 5(c).
As can be seen under the federal statute, then, any time beyond 20 days is viewed as unreasonable if the defendant is not in custody. In the instant case, defendant was out on bond and waited only 10 days between his initial appearance and the deter- mination of probable cause.
The previous federal rule required a hearing in a reasonable time only. In James v. Lawrence (D.C. Cir. 1949), 176 F.2d 18, 20, the court found that 18 days was not unreasonable. There the State asked for a continuance and the court noted that it must consider time for the government to prepare, in computing reasonable time. Alaska's statute likewise requires a hearing within a reasonable time. In Martinez v. State (Alas.1967), 423 P.2d 700, the court discussed the impracticality of requiring a hearing within a specific time, and noted that what constitutes a reasonable time must be determined by the facts of the case. If the charge is serious, both sides need time to prepare; whether the charged is out on bond is another factor which must be considered, because the purpose of the statute is to protect the accused from unwarranted incarceration. Martinez, supra, 423 P.2d at 710-711. The Martinez court found that 16 days was not an unreasonable amount of time.
We find that a 10-day delay in determining probable cause was not unreasonable. The defendant requested the exam but the State was given only a few hours notice. On request of the State, that hearing was vacated. Defendant was released on bond the next day. He did not request another setting and leave to file was granted less than a week later.
Defendant argues that failure to hold a preliminary exami- nation in this case may have allowed an important witness to get away without ever being interviewed. But as this Court indicated in State v. Dunn, supra, 155 Mont. at 326, 472 P.2d at 293, the preliminary hearing is not meant to be a "fishing expedition" for all possible evidence, and if probable cause is established to
the satisfaction of the district judge by the county attorney's
affidavit, the defendant has little reason to complain. In this case, the district judge found probable cause on the strength of
the information presented to him by af fidavit. Based on the amount of evidence presented at trial, we can find no error in
the State's failing to hold a preliminary examination. There was substantial evidence to support a conviction, and the defendant, who relied on the defense of alibi, admitted that this witness had no relevance to his defense of alibi and was not listed as an alibi witness. Under the circumstances it is doubtful that a preliminary examination would have secured any advantage to the defendant. See State v. Johnson (1967), 149 Mont. 173, 178, 424 P.2d 728, 731.
Appellant next contends that the pretrial identification of the defendant by one photo was so suggestive that Ms. Church should not have been permitted to make an in-court identifi-cation. He argues that all evidence obtained after that first identification is tainted by the illegality of the identifi-cation.
The United States Supreme Court and this Court have faced the problem of suggestive identification, and have condemned the procedure of showing the victim only one photo. This process may be so suggestive and so conducive to mistaken identification as to deny due process. Stovall v. Denno (1967), 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206; Neil v. Briggers (1972), 409 U.S. 188, 198, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411. However, not all suggestive identifications have resulted in a finding of denial of due process.
The Montana Court, in State v. Lara (1978), Mont.
I
587 P.2d 930, 35 St.Rep. 1699, enunciated its two-pronged test to determine whether or not the identification should be suppressed:
"First, was the identification procedure imper- missibily suggestive; and, second, if so, did it under the totality of the circumstances have such a tendency to give rise to a substantial likelihood of irreparable misidentification. . .I1 State v. Lara, supra, Mont. at , 587 P.2d at 932, 35 St.Rep. at 1702.
Undoubtedly the procedure here was very suggestive. Ms. Church testified that she had made a previous identification of the defendant by viewing the photo in the wallet which she had found at the scene of the crime. The police were not present at that time. At the hospital she gave the police the wallet, and at that point the investigator showed her the one picture in the wallet, asking if that was a picture of her assailant.
But we find that the circumstances here point to suf-ficient reliability in the identification to satisfy due process. In Neil, suprq the Court set forth some of the factors to be con-sidered in judging reliability:
"We turn, then, to the central question, whether under the 'totality of the circumstances' the identification was reliable even though the con

Download a9f88e04-a564-4bf2-bc4f-9aaaf4aa25af.pdf

Montana Law