No. 88-311 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN THE MATTER OF THE PETITION 

FOR POST-CONVICTION RELIEF OF 

JAMES M. BRODNIAK, 

Petitioner and Appellant, 

-VSSTATE OF MONTANA, 

Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

William Boggs argued, Missoula, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Dorothy McCarter argued, Asst. Atty. General, Helena 

Robert L. Deschamps, 111, County Attorney, iss sou la, 

Montana 

Decided: September 14, 1989 
Justice Fred F. Weber delivered the Opinion of the Court. 

James M. Brodniak appeals from an order of the Fourth 

Judicial District Court, Missoula County, denying his petition for post-conviction relief. We affirm. 

We phrase the issues as follows: 

1. Did the Montana Supreme Court apply the proper 

harmless error test during its review of Mr. Brodniak's 

criminal trial? 

2. Does the harmless error analysis applied by the 

Montana Supreme Court in its review of Mr. Brodniak's criminal trial contravene the due process clause requirement that 

guilt be proven beyond a reasonable doubt? 

3. As a matter of law, can evidence be found to be 

overwhelming for purposes of harmless error analysis where 

one or more members of the appellate tribunal are not convinced that it is? 

A detailed description of the events leading to James M. 

Brodniak's conviction of sexual intercourse without consent 

can be found in our opinion considering his direct appeal, 

State v. Brodniak (1986), 221 Mont. 212, 718 P.2d 322. 

Therefore, we only briefly describe the facts here. 

In the early morning hours of May 10, 1984, D.P. left a 

Missoula bar with James M. Brodniak. The couple purchased a 

six-pack of beer and proceeded to drink and talk in a dormitory parking lot at the University of Montana. At trial, 

D.P. testified that, after a while, she asked Mr. Brodniak to 

take her home. Instead, he took her outside of Missoula to 

Pattee Canyon, locked the car doors, grabbed her hair, and 

forced her to engage in sexual acts. Mr. Brodniak, on the 

other hand, testified that he took D.P. to Pattee Canyon 

because she suggested that they go to a wooded area where she 

could to to the bathroom. He claimed that they then engaged 
in consensual sexual acts. He admitted, however, that toward 

the end of the incident he became violent, pulling D.P.'s 

hair and choking her. 

After the incident, D.P. was examined by a medical 

doctor. The doctor testified that the injuries suffered by 

D.P. were probably not a common result of consensual sexual 

intercourse. A nurse at the hospital observed that a "gross 

amount" of hair came out while D.P. combed her hair. The 

bureau chief of the Montana Criminalistic Laboratory testified that several long hairs found in Mr. Brodniak's car 

belonged to D.P. and that most of her hair had been pulled 

from her head with painful force. 

The psychologist who examined D.P. testified that she 

had an IQ of approximately 78. He also testified that her 

psychological condition was consistent with all of the symptoms of rape trauma syndrome (RTS) . In addition, he gave 

statistical testimony on the percentage of false accusations 

in rape cases and testified that he did not believe that D.P. 

was malingering. 

After a four-day trial, Mr. Brodniak was convicted by a 

jury of the charge of sexual intercourse without consent. He 

was designated a dangerous offender and sentenced to 20 years 

in the Montana State Prison. 

In Brodniak, we affirmed the conviction. In our opinion 

we discussed the admissibility of RTS testimony and concluded 

that, although RTS testimony is generally admissible, it was 

error for the State's expert witness to testify as to his 

belief that D.P. was not malingering and to the statistical 

percentages of false accusations. We stated that such testimony was "improper comment on the credibility" of D.P. 

Brodniak, 221 Mont. at 222, 718 P.2d at 329. We held, however, that the admission of such testimony constituted only 

harmless error because the State's evidence against Mr. 
Brodniak and his own admissions were overwhelming. Brodniak, 

221 Mont. at 223, 718 P.2d at 329. 

We also determined that three other errors were committed during the criminal trial, but refused to reverse the 

conviction, holding that each of the additional errors did 

not prejudice Mr. Brodniak. Mr. Brodniak's petition for 

rehearing, which was summarily denied, was based on the 

doctrine of cumulative error, not on the issue of the standard of review employed in determining harmless error. 

On January 16, 1987, Mr. Brodniak filed a habeas corpus 

petition in the United States District Court for the District 

of Montana, Missoula Division, Brodniak v. Risley, cause no. 

CV-87-29-MI alleging that the Montana Supreme Court had 

applied an incorrect test in its determination of harmless 

error. In response, the State alleged that Mr. Brodniak had 

not exhausted his state remedies because he had not presented 

that precise question to the state courts for review. Consequently, the U.S. District Court dismissed the habeas corpus 

proceeding without prejudice. 

Mr. Brodniak then filed a petition for post-conviction 

relief with the Fourth Judicial District, Missoula County. 

After a hearing, the District Court denied the petition. Mr. 

Brodniak appealed to this Court. 

Did the Montana Supreme Court apply the proper harmless 

error test during its review of Mr. Brodniak's criminal 

trial? 

Mr. Brodniak contends that the psychologist's comment on 

D.P.'s credibility violated his right to jury trial guaranteed by the Sixth Amendment to the Constitution of the United 

States. He argues that expert testimony regarding a witness's credibility invades the province of the jury, amounting to a Sixth Amendment violation. Mr. Brodniak contends 
that the federal test of harmless error, rather than the 

state test, must therefore be applied to his conviction, 

citing Chapman v. California (1967), 386 U.S. 18, 21, 87 

S.Ct. 824, 826-827, 17 L.Ed.2d 705, 709. 

Mr. Brodniak cites United States v. Azure (8th Cir. 

1986), 801 F.2d 336, to support his contention that his Sixth 

Amendment right was violated. It is true that in Azure the 

Eighth Circuit held that, in a trial involving a sex crime 

against a minor, a pediatrician's comment on the believability of the complaining witness constituted reversible error. 

That court however, made no reference to the Sixth Amendment. 

Rather, its analysis centered on the Federal Rules of Evidence. In a more recent case the Eighth Circuit explicitly 

stated that the propriety of expert testimony on general 

patterns of credibility among children reporting sexual abuse 

is essentially a matter of state law. Adesiji v. Minnesota 

(8th Cir. 1988), 854 F.2d 299, 300. Research has disclosed 

no cases holding that an expert's comment on witness credibility violates the Sixth Amendment. Rather, other courts 

have analyzed this type of error pursuant to rules of evidence, and by applying a state harmless error test. - See, 

e.g. Tevlin, 715 P.2d at 341-342; People v. Oliver (Colo. 

1987), 745 P.2d 222, 225; State v. Chul Yun Kim (N.C. 1986), 

350 S.E.2d 347, 352. 

In Montana, an error of state law will be deemed harmless "unless the record shows that the error was prejudicial." Section 46-20-701, MCA. "The test of prejudicial 

error requiring reversal is whether there is a reasonable 

possibility the inadmissible evidence might have contributed 

to the verdict." State v. Gray (1983), 207 Mont. 261, 268, 

673 P.2d 1262, 1266; State v. Gray (1983), 202 Mont. 445, 

449-450, 659 P.2d 255, 257; State v. Lave (1977), 174 Mont. 

401, 407, 571 P.2d 97, 101. 
Mr. Brodniak devotes considerable argument to the federal harmless error test. We note that the federal harmless 

error test is essentially the same as that above enunciated 

for Montana. The United States Supreme Court stated the test 

for federal constitutional error in Fahy v. Connecticut 

(19631, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 

171, 173. The Court later restated this test in Chapman, 

noting however, that it did not change the Fahy test: 

There is little, if any, difference between our 

statement in Fahy v. Connecticut about "whether 

there is a reasonable possibility that the evidence 

complained of might have contributed to the conviction" and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt 

that the error complained of did not contribute to 

the verdict obtained. We, therefore, do no more 

than adhere to the meaning of our Fahy case when we 

hold, as we now do, that before a federal constitutional error can be held harmless, the court must 

be able to declare a belief that it was harmless 

beyond a reasonable doubt. 

Chapman, 386 U.S. at 24. 

The essential question is whether there is a reasonable 

possibility that the inadmissible evidence might have contributed to the conviction. 

Before discussion of this issue, we first note that Mr. 

Brodniak is asking this Court to reconsider an issue which 

was already decided in the original appeal of Brodniak where 

this Court stated: 

This Court, however, will not reverse a judgment of 

conviction for harmless error, and the question as 

to whether a particular error is harmful or harmless depends on the facts of the case under review. 

(Citation omitted.) In the instant case we hold 

that the admission of Walters' testimony, above 

quoted, was harmless error. A review of the record 

of this case reveals that the physical evidence 

against Brodniak and his own admissions that he 
resorted to violence were so overwhelming that 

admission of the RTS testimony did not affect his 

substantial rights. 

Brodniak, 221 Mont. at 223, 718 P.2d at 329. 

The overwhelming evidence rule is one method used by 

this Court to ascertain whether there is a reasonable possibility that the inadmissible evidence contributed to the 

verdict. State v. McKenzie (1980), 186 Mont. 481, 533, 608 

P.2d 428, 458, cert. denied, 449 U.S. 1050 (1980); accord, 

Tevlin v. People (Colo. 1986), 715 P.2d 338, 342. Also, when 

assessing the prejudicial effect of an error, this Court will 

examine the totality of the circumstances in which the error 

occurred. - See Gray, 207 Mont. at 268, 673 P.2d at 1266. If 

the error involves erroneously admitted evidence, we will not 

single out that one item of evidence to evaluate it in isolation. To do so could magnify the prejudicial effect of the 

error beyond its actual impact on the verdict, leading to 

reversals for mere technical violations of evidentiary rules. 

Mr. Brodniak urges that the evidence in this case is not 

overwhelming either from a factual or a legal standpoint. 

His legal argument on this issue will be addressed in Issue 

111. Factually, he contends that the evidence is equally as 

consistent with defendant's theory of the case (which was 

that the sexual acts were consensual, but that defendant 

subsequently became violent) as it is with the prosecution's 

theory. This is the key point of Mr. Brodniak's argument 

with which we disagree. 

This is not a case where the complaining witness's story 

is uncorroborated. Overwhelming evidence--both physical and 

testimonial--supports D.P.'s story. First, the evidence with 

regard to the tearing out of D.P. 's hair overwhelmingly 

demonstrated the use of force. The chief of the crime lab 

testified that most of the hairs found in the car and the 
large ball of hair retrieved from D.P. 's scalp had been 

pulled from her head with painful force. He testified that 

most of the strands of hair had extended roots still attached, indicating that these hairs were extracted violently. 

The ball of hair was introduced into evidence. The attending 

nurse testified that, while D.P. combed her hair, a "gross 

amount" of hair came out and her scalp appeared to be tender. 

Second, D.P. suffered a tear one inch in length in her anus, 

a fact clearly inconsistent with consensual relations. 

Third, the examining physician's testimony established that 

D.P. had blood in and around her vagina, on her underwear and 

that the vaginal area still remained sore at the time of the 

examination. In response the defendant attempts to argue 

that he became violent only after they had engaged in consensual sexual intercourse. The foregoing evidence clearly is 

not consistent with consensual intercourse and establishes 

violent acts on the part of the defendant. We will not set 

forth the rest of the evidence including the testimony of 

D.P. which supports the conviction. Our careful review of 

the record reveals that the evidence overwhelmingly supports 

the verdict that Mr. Brodniak was guilty of sexual intercourse without consent. We hold there is no reasonable 

possibility that the psychologist's testimony contributed to 

the jury's finding that Mr. Brodniak was guilty of the crime 

of sexual intercourse without consent. 

Mr. Brodniak makes an extensive argument with regard to 

the burden of proof according to the different tests. We 

conclude that it is unnecessary to discuss that argument 

because the previously described evidence submitted by the 

State is overwhelming and this Court has concluded that there 

is no reasonable possibility that the error contributed to 

the verdict. 
Does the harmless error analysis supplied by the Montana 

Supreme Court in its review of the defendant's criminal trial 

contravene the due process clause requirement that guilt be 

proven beyond a reasonable doubt? 

Mr. Brodniak's claim rests on the erroneous assumption 

that the state harmless error analysis somehow lowers the 

requisite level of proof necessary to meet the standard of 

"guilty beyond a reasonable doubt." As stated earlier, the 

Montana test requires that there be no reasonable possibility 

that the error contributed to the verdict before it can be 

declared harmless. We hold that in Brodniak, there was no 

contravention of the due process requirement that guilt be 

proven beyond a reasonable doubt. 

As a matter of law, can evidence be found to be overwhelming for purposes of harmless error analysis where one or 

more members of the appellate tribunal are not convinced that 

it is? 

In Brodniak, one member of our seven-member Court dissented from the majority opinion. Brodniak argues that, as a 

matter of law, evidence cannot be overwhelming for purposes 

of harmless error analysis where one or more members of the 

appellate tribunal are not convinced that it is. However, 

unanimity among the appellate tribunal has never been a 

prerequisite to a finding of harmless error when using the 

overwhelming evidence test, even when the test is used to 

determine the magnitude of constitutional error. - See State 

v. Powers (1982), 198 Mont. 289, 645 P.2d 1357 (one justice 

dissenting from harmless error determination); State v. Dess 

(1979), 184 Mont. 116, 602 P.2d 142 (one justice dissenting); 

Milton v. Wainwright (1972), 407 U.S. 371, 92 S.Ct. 2174, 33 

L.Ed. 2d 1; (four justices dissenting) ; and Harrington v. 
California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 

284 (three justices dissenting). 

Although we have referred to some federal cases, our 

analysis and our holding in this opinion are based upon our 

analysis of Montana's statute defining harmless error and our 

case law interpreting that standard. Our opinion therefore 

is based on independent and adequate state grounds. 

We affirm the District Court's denial of Mr. Brodniak's 

petition for post-conviction relief. 

We Concur: A 

Justices 
Justice William E. Hunt, Sr., dissenting. 

I dissent. The State bore the burden of proving beyond 

a reasonable doubt that the complaining witness did not 

consent to sexual intercourse with the defendant. To bolster 

its case, the State solicited testimony regarding the 

credibility of the complaining witness. Because of the 

potentially tremendous impact of this testimony, I cannot 

join the majority's conclusion that the error did not 

contribute to the jury verdict. 

Whether an error is harmless depends on a number of 

factors, each of which should be carefully analyzed by the 

reviewing court. These factors include: 

1) the nature of the error; 

2) the importance of the erroneously admitted 

evidence to the State's case; and 

3) the presence or absence of corroborating 

untainted evidence. 

Cf. Delaware v. Van Arsdall (1986), 475 U.S. 673, 106 S.Ct. 

1431, 89 L.Ed.2d 674 (listing factors to be considered in 

determining harmlessness of error involving Sixth Amendment 

right of confrontation) ; Satterwhite v. Texas (1988) , - 

U.S. - , 108 S.Ct. 1792, 100 L.Ed.2d 284 (psychiatrist's 

testimony in violation of Sixth Amendment right to counsel 

was not harmless when the testimony regarding defendant's 

dangerous propensity was critical to sentencing, when only 

one psychiatrist testified on the issue and when the State 

placed significant weight on the testimony). 

The nature of the error committed in this case directly 

implicated the ultimate issue to be determined at trial, that 

is, whether the complaining witness consented to sexual 

intercourse with the defendant. Thus, the expert's testimony 

regarding the credibility of the complaining witness 

improperly invaded the province of the jury. Furthermore, 
the testimony was material to the State's case. The State 

actively solicited the testimony and the State relied upon it 

in closing. Moreover, the untainted evidence corroborated 

not only the State's case, it corroborated the defendant's 

theory of the case as well, that is, that the violent acts 

did not occur until after a consensual sexual encounter. 

The overwhelming evidence test used in this opinion 

places the majority in the uncomfortable position of 

factfinder, forcing the majority to reweigh and, to some 

extent, mischaracterize the evidence. For example, the 

physician who examined the complaining witness testified 

that, although not common, her condition could possibly have 

resulted from consensual sexual relations. The majority, 

however, claims that her condition was "clearly inconsistent" 

with consensual intercourse. 

By concentrating solely on the weight of the evidence 

and ignoring the nature of the error and the error's 

importance to the State's case, the majority examines the 

impact of the error in a vacuum. The issue before the jury 

was whether the complaining witness engaged in consensual 

sexual relations with the defendant. To reach a verdict, the 

jury weighed the credibility of the witnesses. Among the 

evidence the jury had before it was the testimony of a highly 

qualified expert witness who asserted that he believed that 

the complaining witness was credible. his testimony was 

solicited by the State and extensively relied upon by the 

State in closing. Under these circumstances, I cannot agree 

with the majority that, beyond a reasonable doubt, the expert 

testimony did not contribute to the jury verdict. 

I would remand the case to the District Court for a new 

trial. 
Mr. Justice John C. Sheehy, dissenting: 

I concur in the dissent of Justice ~illiam E. Hunt, Sr.