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No.

79-119

I N THE SUPREME C U T O THE STATE O MONTANA O R F F
1980

THE STATE O MONTANA, F
P l a i n t i f f and Respondent, -vsLUIS PECORA, Defendant and A p p e l l a n t .

Appeal from:

D i s t r i c t Court of t h e T h i r t e e n t h Judicia; J l i s t r i c t , I n and f o r t h e County o f Y e l l o w s t o n e , The Honorable Diane G. B a r z , Judge p r e s i d i n g .

Counsel o f Record: For A p p e l l a n t : B e r g e r , Anderson, S i n c l a i r & Murphy, B i l l i n g s , Montana C h r i s Nelson a r g u e d , B i l l i n g s , Montana F o r Respondent: Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana Mark Murphy a r g u e d , A s s t . A t t y . G e n e r a l , H e l e n a , Montana Harold F. H a n s e r , County A t t o r n e y , B i l l i n g s , Montana James Whalen a r g u e d , Deputy County A t t y . , B i l l i n g s , Montana

Submitted: Decided :

September 1 5 , 1980

O N 2 2 1986

Mr. Justice John C. Sheehy delivered the Opinion of the Court. ~efendantappeals from a Yellowstone County District Court conviction on one count of sexual intercourse without consent. The issues presented are: (1) whether the District

Court erred in refusing a Smith-type jury instruction; (2) whether the jury was properly instructed on the consent issue; and (3) whether the court erred in refusing to order depositions of two witnesses. On the night of July 2, 1979, defendant and his twentyyear-old adopted daughter (the victim) were alone at the family home in Billings. family pursuits. her bedroom. They passed the evening in routine

At about 10:OO p.m., the victim retired to

The defendant followed her into the room, and

after several hours of discussion, the couple engaged in sexual intercourse. Thereafter, the victim fled the house

via her bedroom window and ran to her sister's home, from which the police were summoned. Both parties generally agree as to the events of the evening. Their testimonies do not conflict essentially on

the occurrences leading up to and including the sexual intercourse. They disagree as to whether the victim consented.

The victim testified that after defendant followed her into the bedroom, he slapped and choked her, whereupon she screamed. When he later momentarily left the room, she Upon his return, she struggled and She denied cooperating

tried to lock the door.

resisted for as long as she was able.

or consenting to sexual intercourse at any time. Defendant testified that a jocular mood existed that night, that he followed her into the bedroom in a playful spirit, and that he neither slapped nor choked her. As

their discussion progressed, he became serious about having -2-

sexual relations, but she was reluctant.

When he left the When

room, she stood up but did not try to lock the door.

defendant returned and initiated sexual advances, she presented only token resistance, which ceased altogether as defendant persisted. Defendant claims she thereafter consented and

cooperated fully in the ensuing activity. A medical examination of the victim the following morning revealed a mildly reddened right cheek, described as equivocal, and two linear bruises over her chest. were no marks on her neck. The defense offered the following instruction, which the court refused. "You are instructed that the charge of Sexual Intercourse Without Consent is easy to make, difficult to prove, and more difficult to disprove, and in considering a case of this kind, it is the duty of the jury to carefully and deliberately consider, compare and weigh all testimony, facts and circumstances bearing on the act complained of, and the utmost care, intelligence and freedom from bias should be exercised by the jury (sic) consideration thereof. " The defendant argues that since there is a lack of corroboration on the critical matter of consent, the defense was entitled to the instruction pursuant to State v. Smith (1980), Mont. There

,

609 P.2d 696, 37 St.Rep. 583.

In Smith, as in the present case, the occurrence of the
sexual act was not disputed. In Smith, however, there was

evidence of both malice and motive on the part of the victim for revenge, in addition to a complete absence of corroboration on the issue of consent. Court to state in Smith: "The evidence clearly meets the standard of private malice, desire for revenge and absence of corroboration on the critical matters of consent, all as required by State v. Ballew (1975), 166 Mont. 270, 275-76, 532 P.2d 407, 410-11, and cases cited therein." 609 P.2d at 699. These circumstances prompted this

Failure to grant this cautionary instruction under the facts presented in Smith necessitated remand. Ballew, supra, involved a deviate sexual conduct charge where the complaining witness was a sixteen-year-old boy. There

was no evidence of ill-will between the victim and defendant, and the physical evidence supported the victim's testimony. The defendant in Ballew denied making any sexual advances. This Court rejected the proffered cautionary instruction, ruling:

. refusal to give such an instruction will be error only when some specific cause is shown for distrusting the testimony of the complaining witness. Such causes might include manifest malice, desire for revenge, or an absence of corroborating evidence tending to support the facts testified to by the complaining witness." 166 Mont. at 276, 532 P.2d at 411.
Thus, Ballew focuses on a specific cause for distrusting the victim's testimony. v. Just (1979), - Mont This Court has indicated in State

". .

. -, 602 P.2d

957, 964, 36 St.Rep. 1649,

1659, that lack of corroboration, standing alone does not constitute sufficient cause for distrust. The ruling in

Smith, supra, provides that a showing of some type of personal enmity coupled with a lack of corroborative evidence on the disputed areas of testimony may give rise to distrust. In this instance, the record reflects neither private malice nor motive for revenge on the part of the victim, nor is there a lack of corroborative evidence regarding consent. The District Court's refusal of the cautionary instruction was thus not error. The defense theory at trial was that the victim acted as a consenting partner in the sexual relations, notwithstanding her original reluctance. Defendant argues the instructions

given, mandated conviction because they did not fully present the law as applicable to this defense theory. Defendant

offered four a l t e r n a t i v e i n s t r u c t i o n s purporting t o f u l l y recite the law. S i n c e e v i d e n c e s u p p o r t i n g t h e t h e o r y was

a d m i t t e d , d e f e n d a n t a r g u e s t h e j u r y s h o u l d have been i n s t r u c t e d regarding t h e defense theory. Some e v i d e n c e s u p p o r t i n g t h e d e f e n s e t h e o r y w a s i n d e e d included i n t h e record. Had d e f e n d a n t o f f e r e d an a c c e p t a b l e S t a t e v.

i n s t r u c t i o n , it s h o u l d p e r f o r c e have been g i v e n .

Buckley ( 1 9 7 6 ) , 1 7 1 Mont. 238, 242, 557 P.2d 283, 285. However, e a c h of d e f e n d a n t ' s c o n s e n t i n s t r u c t i o n s was r e p l e t e w i t h m i s l e a d i n g s t a t e m e n t s and m i s s t a t e m e n t s of Montana law. Failure t o present a s p e c i f i c , acceptable i n s t r u c t i o n regarding

i t s own t h e o r y p r e c l u d e s t h e d e f e n s e from a l l e g i n g r e v e r s i b l e
error. S t a t e v. Watson ( 1 9 6 5 ) , 1 4 4 Mont. 576, 584, 398 P.2d

The j u r y w a s g i v e n t h e f o l l o w i n g i n s t r u c t i o n : "There i s no c l e a r r u l e a s t o how much r e s i s t a n c e i s r e q u i r e d o f a woman i n o r d e r t o p r o v e h e r l a c k o f c o n s e n t t o s e x u a l i n t e r c o u r s e w i t h a man who The intends t o rape her, apparently a t a l l costs. law d o e s n o t p u t h e r l i f e i n t o even g r e a t e r jeopardy There i s no way a woman i n than it i s already i n . d e a l i n g w i t h a man b e n t on r a p e can know how much r e s i s t a n c e s h e c a n g i v e w i t h o u t provoking him i n t o k i l l i n g h e r . Continuous r e s i s t a n c e t o an a t t e m p t e d rape i s n o t required." Although t h e i n s t r u c t i o n i s t a k e n d i r e c t l y from S t a t e v. Glidden ( 1 9 7 4 ) , 165 Mont. 470, 474, 529 P.2d 1384, 1386, t h e l a n g u a g e was n o t n e c e s s a r i l y i n t e n d e d n o r i s i t s u i t a b l e f o r u s e as a j u r y i n s t r u c t i o n . Foundation (1978) , St.Rep. 1647, 1665. Hunsaker v. Bozeman Deaconess

Mont.

,

588 P.2d 493, 509, 35

T h i s p a r t i c u l a r language i s a r g u m e n t a t i v e
It is therefore not appropriate

and comments on t h e e v i d e n c e .

a s a j u r y i n s t r u c t i o n and s h o u l d n o t be s o used. a g r e e d t o t h i s i n o r a l argument b e f o r e t h i s C o u r t .

The S t a t e

Defendant i s n o t e n t i t l e d t o r e v e r s a l due t o t h e i m p r o p r i e t y of t h e i n s t r u c t i o n . The o n l y d e f e n s e o b j e c t i o n s w e r e t h a t

t h e i n s t r u c t i o n was an i n c o m p l e t e s t a t e m e n t of t h e law, and

was more fully covered by defendant's proposed instructions. The objections, on those improper brounds, were properly overruled. Richland County v. Anderson (1956), 129 Mont. Defendant, having failed to

559, 574, 291 P.2d 267, 275.

make proper objection to the instruction, and indeed having offered the same instruction, is bound by it. (1978) - Mont State v. Collins

. -, 582 P.2d

1179, 1185, 35 St.Rep. 993, 1001.

Defendant's final argument for reversal concerns the District Court's refusal to order depositions of the victim's sister and brother-in-law. Defendant contends depositions

were necessary pursuant to section 46-15-201(1), MCA, because the witnesses refused to interview defense counsel unless some member of the county attorney's office was present. Here, an unwillingness by the witnesses to provide relevant information is a necessary statutory element for compelling depositions. Section 46-15-201(1), MCA. An interview

under circumstances directed by the witness would reflect unwillingness only if the attached conditions make it untenable for defense counsel to discover needed material. Kirkendall

v. Fisher (1976), 27 Ariz.App. 210, 553 P.2d 243, 245. Where, as here, the witnesses were not uncooperative and were interviewed by defense counsel, a prosecutor's presence does not require further discovery. State v. Deddens (1976), 26 Ariz.App. 241, 547 P.2d 512, 513-14. We do not hold here that any party other than a witness may dictate conditions of an interview. Witnesses to a

crime are the property of neither the prosecution nor the defense. Gregory v. United States (D.C.Cir. 1966), 369 The prosecution therefore may neither sequester

F.2d 185, 188.

nor insulate witnesses from the defense on his own initiative. There is no indication in the record that the proviso here was set at the prosecution's suggestion or behest. -6-

The statutory elements for compelling depositions clearly do not exist here. The District Court acted well

within its discretion in refusing defendant's motion. The judgment of the District Court is affirmed.

' - f p ! Justice

----

We Concur:

Chief Justice

Justices

Mr. Justice Daniel J. Shea concurs with the affirmance of the conviction but not in all that is said concerning jury instructions. I emphasize first that the trial courts and counsel should be discouraged from lifting language from court opinions to be used as jury instructions. practice. It is not good

We covered that problem, I thought, in Hunsaker Mont

v. Bozeman Deaconess Foundation (1978), 588 P.2d 493, 509, 35 St-Rep. 1647, 1665.

.

I

The plain fact is

that court opinions are not designed to nor intend to be jury instructions. Secondly, I do not agree with the majority opinion that "failure to present a specific, acceptable instruction regarding its own theory precludes the defense from alleging reversible error." That puts a burden on the defendant or

his counsel which is more properly with the trial court. Once the defendant urges a particular theory, and there is evidence in the record relating to that theory, it is then the duty of the trial court to instruct on such theory. fact that defense counsel does not prepare an acceptable instruction does not relieve the trial court of either putting defense counsel to work drafting a proper one or drafting a proper one himself. It is fundamentally and primarily the The

duty of the trial court to see that the jury is properly instructed. That he should be aided by trial counsel goes

without saying; but that he can be relieved of his obligation by placing the onus on counsel, has the effect of relieving the duty of the trial court to properly instruct the jury. That should never be the case.



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