Nos. 80-142 & 80-323 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS. 

EDWARD DENNIS HIGLEY 

Defendant and Appellant, 

No. 80-142 

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. 

THE DISTRICT COURT OF THE 

THIRD JUDICIAL DISTRICT et al., 

Respondents. 

ORIGINAL PROCEEDING 

No. 80-323 

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 

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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 eventually 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 examination be held that afternoon. The State objected and no examination 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 intercourse? 

7. Does the evidence support the verdict? 

8. Is the district judge permitted to interview the victim 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 postconviction 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 previously 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 preliminary examination, the district court has 

granted leave to file an information, an indictment 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 determination 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 reasonable ---- 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 determination 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 examination 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 identification. He argues that all evidence obtained af ter that first 

identification is tainted by the illegality of the identification. 

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 impermissibily 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 sufficient reliability in the identification to satisfy due process. 

In Neil, suprq the Court set forth some of the factors to be considered 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£ rontat ion procedure was suggestive . As 

indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the 

witness to view the criminal at the time of the 

crime, the witness' degree of attention, the 

accuracy of the witness1 prior description of 

the criminal, the level of certainty 

demonstrated by the witness at the 

confrontation, and the length of time between 

the crime and the confrontation." Neil, supra, 

409 U.S. at 199-200, 93 S.Ct. at 38-4 L.Ed.2d 

at 411. 

Here the victim spent about one and one-half hours with 

defendant, both in his car and in Bridger Canyon, and she was 

forced to engage in intimate physical activity with him. At two 

different times, the interior car light came on, giving the victim an opportunity to view her assailant. 

Additionally, although the victim's prior description of 

defendant was limited in detail, her description was accurate. 

She told the police that her assailant had blonde hair, was 

fairly heavy set and was very light skinned. She also stated 

that her assailant's hair was shorter at the time of the offense 

than at the time the photograph was taken, and that she did not 
remember that her assailant had a mustache as was shown in the 

photo. In fact, the defendant's hair was shorter at the time of 

his arrest and he did not have a mustache. His hair was blonde 

and he had a light complexion. 

Little time elapsed between the victim's release and the 

photographic identification. The detective testified that she 

demonstrated a very high degree of certainty when identifying 

defendant from the photograph. 

Under the circumstances of this case, we find that there 

was very little likelihood of misidentification. Thus, the 

district judge properly denied the motion to suppress the 

identification. 

Appellant next challenges section 45-5-503(5), MCA, and Rule 

608, Mont .R. Evid., as unnecessarily restricting a defendant's 

right to cross-examine, and to introduce relevant testimony. He 

alleges that the result of the use of these statutes is to deny 

the defendant his constitutional right to confront witnesses. 

Section 45-5-503 (5) prevents introduction of evidence of 

the victim's sexual conduct and provides in part: 

"No evidence concerning the sexual conduct of 

the victim is admissible in prosecutions under 

this section . . .I1 

The Annotator's notes to that section indicate that the purpose 

of the rule is "to prevent the trial of the charge against the 

defendant [sic] being converted into a trial of the victim." 

Annotator 's Notes, MONTCLIRC1s Montana Criminal Code Annotated, 

Rule 608 (b) , M0nt.R. Evid ., provides in pertinent part: 

"Specific instances of conduct. Specific 

instances of the conduct of a witness, for the 

purpose of attacking or supporting his 

credibility, may not be proved by extrinsic 

evidence. They may, however, in the discretion 

of the court, if probative of truthfulness or 

untruthf ulness, be inquired into on crossexamination of the witness (1) concerning his 

character for truthfulness or untruthfulness . . ." 

Based on these provisions the State obtained an order in 
limine to prevent defendant from calling Mrs. Sorenson, Linniels 

landlady, who was expected to testify that Linnie laughed after 

being asked by her roommate: "Where are all of Bozemanls 

rapists? Linnie needs to be raped again .I1 Appellant's position 

is that by being precluded from bringing in this witness the 

defendant was denied important testimony as to the victim's views 

on sexual matters. He also alleges error in the restrictions 

which the judge imposed on his cross-examination of the victim 

concerning her jacket which had inscribed on it, "Liquor in the 

front, and poker in the back." 

The Sixth Amendment guarantees a criminal the right to 

testimony of witnesses in his favor. Washington v. Texas (1967), 

388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023. 

However, it does not guarantee him the right to any and all 

witnesses, regardless of their competency or knowledge. There is 

the competing interest of the fairness and reliability of the 

trial. The United States Supreme Court expressed this consideration in Chambers v. Mississippi (1972), 410 U.S. 284, 302, 

93 S.Ct. 1038, 1049, 35 L.Ed.2d 297, 313: 

"In the exercise of this right, the accused, as 

is required of the State, must comply with 

established rules of procedure and evidence 

designed to assure both fairness and reliability 

in the ascertainment of guilt and innocence." 

In limiting the right to confront and cross-examine, the 

rules in question must be scrutinized to determine whether they 

are arbitrary or whether they serve a legitimate competing 

interest. Chambers, supra, 410 U.S. at 295, 93 S.Ct. at 1046, 

35 L.Ed.2d at 309. 

We find that these rules limiting inquiry into sexual conduct of the victim are essential to preserve the integrity of the 

trial and to prevent it from becoming a trial of the victim. The 

Commission Comments, Rule 405 (b), M.R.Evid., sets out the justification for keeping out evidence of specific acts of conduct: 

"This method of proof is the most persuasive of 

the three contained in the rule, and is also the 
most likely 'to arouse undue prejudice, to confuse and distract, to engender time-consuming 

side issues and to create risk of unfair 

surprise.' McCormick, Handbook of the Law of 

Evidence 443 (2d ed. 1972 ) . AS? resurocthe 

effect of this method of proof, it is generally 

restricted to situations where character is in 

issue, when such proof is central to the outcome 

of the case." Commission Comments, Rule 405(b), 

Mont .R. Evid. 

The victim's character is not in issue in a case such as 

this. Thus the potentially damaging evidence of specific acts 

and prior conduct should be kept from the jury. We find no 

denial of defendant's rights in this limitation nor do we find 

that the judge improperly limited cross-examination as to the 

victim's sexual views as evidenced by the quote on her jacket. 

Rule 608 (b) , M.R.Evid ., provides that the judge may allow inquiry 

into specific acts on cross-examination, if such acts are probative of the truthfulness or untruthfulness of the witness. It is 

doubtful that testimony concerning the victim's sexual views 

comes within this rule at all, and it is clearly within the 

judge's discretion to exclude this evidence if it is irrelevant 

or too prejudicial. See Commission Comments, Rule 608 (b), 

M.R.Evid. In addition to being prejudicial, this kind of evidence 

has little if any probative value. Thus, we find no merit in 

defendant's argument, and find that the district judge properly 

kept this evidence from the jury. 

Appellant next contends that the district judge's denial 

of his motion to suppress two reports from the Montana Criminal 

Investigation Lab constitutes reversible error. He claims pre j udicial surprise because these reports were not contained in the 

"Omnibus Hearing Order." 

Pursuant to local Rule 10A "Criminal Omnibus Hearing," the 

district judge scheduled an omnibus hearing for September 25, 

1979, a few weeks before trial. At that time the State made 

available to the defense a report from the Montana Criminal 

Investigation Lab. The day before trial the State notified 

defendant that two additional reports had just been made 
available by the lab. The following day, at trial, the State 

called Arnold Melnikof f, Bureau Chief of the Lab to testify. At 

that time defense counsel moved to suppress the evidence in 

reports two and three. The district judge denied the motion, but 

granted a continuance. 

Appellant contends that the State's failure to include 

these two tests in the omnibus order requires their suppression 

because of a notice problem inherent in violating an omnibus 

order. In State of Montana v. District Court, (1979), Mont. 

, 590 P.2d 1104, 1109, 36 St.Rep. 161, 166- 167, this Court 

directed the District Courts to adopt an omnibus hearing procedure in order to "schedule, resolve and determine pretrial 

motions, applications and requests, including the calendaring and 

scheduling of the trial .I1 

Pursuant to this directive, the Eighteenth Judicial 

District adopted Rule 10A. The omnibus hearing requires the 

court to "(2) See whether discovery has been complete and if not, 

make orders appropriate to expedite its completion"; and further 

that "(7) any and all issues should be raised . . ." 

These rules are clearly meant to expedite and simplify the 

trial of a criminal case by getting all parties together on the 

contested issues and to facilitate discovery problems. The 

quoted sections, supra, do not appear to be aimed at setting an 

absolute deadline on discovery, but rather serve to implement the 

general discovery procedures outlined in section 46-15-301 et 

seq. MCA. Part 3 of Section 46-15-302 sets forth the obligation 

of continuing discovery: 

"(b) If, subsequent to compliance with an order 

issued pursuant to this rule and prior to or 

during trial, a party discovers additional 

material previously requested which is subject 

to discovery or inspection under this rule, he 

shall promptly notify the other party or his 

attorney or the court of the existence of the 

additional material. The court shall exclude 

any evidence not presented for inspection or 

copying pursuant to this rule unless good cause 

is shown for fa.ilure to comply. In the latter 
case the opposing party is entitled to a recess 

or a continuance during which it may inspect or 

copy the evidence in the manner provided for in 

this subsection (3) ." 

The hearing on the motion to suppress this evidence indicates that the State was unaware of the results of the two tests 

until the day before trial. The State notified defense counsel 

at that time. The defendant took no action until the matter came 

up at trial. In a somewhat analagous situation, defendant in 

State v. McKenzie (1980), Mont . , 608 P.2d 428, 37 

St .Rep. 325, claimed that he demanded certain information from 

the county attorney which was not supplied to him. After trial 

began, defendant filed a motion to require the furnishing of 

this material. The Court found that there was a waiver of his 

right to object because of "defendant's failure to file a demand 

and motion for this material until after trial had begun." 

McKenzie, supra, Mont. at , 608 P.2d at 443, 37 St.Rep. 

at 337. 

Also as in McKenzie, defendant here claims surprise. We 

noted in that case that "the proper procedure where surprise is 

claimed . . . is to ask for a continuance so that defendant may 

prepare. " McKenzie , supra, Mont. at , 608 P.2d at 441, 

37 St.Rep. at 335. 

Despite the fact that defendant knew of the new information prior to trial, he did not request a continuance. 

However, after the trial had commenced, the district judge 

granted a continuance overnight to allow defendant to prepare. 

It is within the judge's discretion to exclude the evidence, or 

to allow it in, subject to a continuance, based on his perceptions of the reason for nondisclosure and possibilities of 

prejudice. See Commission Comments, section 95-1803 (c), R.C.M. 

1947, (now section 46-15-302(3), MCA). There is no evidence that 

the State purposely attempted to withhold evidence from the 

defendant. Additionally, the defendant by-passed his opportunity to have the trial continued when he found out about the 
evidence the day before trial. Clearly the new evidence was very 

damaging to the defendant, but the district judge granted him an 

overnight continuance on learning of the evidence. We find no 

error to defendant in this procedure. 

Appellant next argues that a cautionary instruct ion should 

have been given to the jury, because here the substantive facts 

were in question and there was scanty medical evidence of 

intercourse. The appellant is clearly asking this Court to 

devise new situations in which the following kind of instruction 

should be given: 

"You are instructed that no charge can be more 

easily made and none is more difficult to 

disprove than that of 'rape'. The jury is 

instructed that they must examine the 

complainant's testimony with caution and be 

satisfied with all aspects thereof beyond a 

reasonable doubt." 

We have considered this instruction in several cases over 

the past few years and have sanctioned its use only in very 

limited circumstances. In the case of State v. Ballew (1975), 166 

Mont. 270, 532 P.2d 407, we noted several situations in which 

this instruction is appropriate: 

" [I] t is clear that 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." State v. Ballew, supra, 

166 Mont. at 276, 532 P.2d at 411. 

Since the Ballew case was decided, this Court has narrowed 

the rule, finding that absence of corroboration alone is not suff icient reason for distrusting the testimony of the complaining 

witness. We hold that this instruction should be given only 

where "a showing of some type of personal enmity coupled with a 

lack of corroborative evidence on the disputed area of testimony 

may give rise to distrust." State v. Pecora (1980), Mont . I 

P.2d , 37 St.Rep. 1742, 1744. See also State v. Smith 
(1980 I Mont . , 609 P.2d 696, 699, 37 St.Rep. 583, 587. 

The situation in the present case would not necessitate 

this instruction under either Ballew or Pecora. There was no 

evidence of any desire for revenge, or any indication of any 

malice. In fact, the victim and the defendant testified to 

having never even seen each other prior to the night in question. 

Additionally, the record shows evidence corroborating the 

victim's testimony. 

A neighbor heard a woman scream at approximately the same 

time that the victim testified to being abducted. A piece of the 

victim's glasses was found in the vicinity of the claimed abduction. A microscopically similar pubic hair of the victim's was 

found in defendant 's car. A pubic hair microscopically similar 

to the victim's was found in defendant's pubic hairs. A hand 

print matching the victim's was found on the ground at the place 

where she testified to being forced to her hands and knees for a 

sexual act. A wallet was introduced into evidence which the victim testified to finding during the course of the sexual acts. 

Based on this evidence and additional evidence in the 

record, we conclude that there was no basis for offering this 

instruction to the jury. 

Appellant also claims error in the instructions given to 

the jury on "without consent," alleging that the instructions 

given shifted the burden to defendant of proving to the jury that 

the act was done with consent. He requested an instruction 

stating that some manifestation of lack of consent must be shown 

by the victim. We find that the jury instructions as a whole 

correctly instructed on consent and on the burden of proof. 

Defendant offered the following instruction which was 

ref used: 

"The court instructs the jury that it is the law 

of this State that a woman assaulted with an 

intent to commit rape upon her is not required to 

resist by all violent means within her power. 

The law requires only that she does not consent, 

and that she do all that her age, strength and 
the attendant circumstances make it reasonable 

for her to do in order to manifest her 

opposition. She is not required to resist 

beyond exhaustion of her strength or beyond the 

point where the force used against her would make 

further resistance useless or impossible." 

The instruction which was given contained the same 

language, but with one addition: 

"You are instructed that continuous resistance 

is not required to show that sexual intercourse 

was without consent." 

The judge further instructed the jury on the meaning of 

"without consent," as found in section 45-5-501, MCA: 

"You are instructed that an act is done 'without 

consent' if the victim is compelled to submit by 

force or threat of bodily injury or threat of 

kidnapping, to be in£ licted on anyone." 

Appellant argues that these instructions do not adequately 

instruct the jury on the necessity of the victim's showing active 

resistance to the assailant, and requested the following instruction: 

"To constitute carnal knowledge of a female 

rape, [sic] the law requires something more than 

mere absence of consent; there must be actual 

resistance, or excuse, imcompatible with 

consent, for its absence. Thus, generally, 

resistance by the female is a necessary element 

of the crime. In fact, the essential element of 

nonconsent, or that the act be against the 

woman's will, signifies, and is indicated by, 

resistance by the female. 

"Further, it must be real or genuine and active, 

and not feigned, or passive, or perfunctory. " 

The District Court must insure defendant's right to 

have instructions stating the law applicable to his case, State 

v. Metcalf (1969), 153 Mont. 369, 376, 457 P.2d 453, 457, 

but the court is not required to instruct on incorrect law, State 

v. Caryl (1975),, 168 Mont. 414, 425, 543 P.2d 389, 395, or on 

every nuance of a defense theory. State v. Hamilton (1980 ), 

Mont . , 605 P.2d 1121, 1129, 37 St.Rep. 70, 78-79. 

In determining whether or not the jury was properly 

instructed as to the defense's theory, this Court will look at 

the instructions as a whole. State v. Caryl, supra, 168 Mont. at 

430, 543 P.2d at 398. Instruction No. 6 told the jury that defen- 
dant was charged with "sexual intercourse without consent," and 

that "every material fact necessary to constitute such crime must 

be proved by the State by competent evidence, beyond a reasonable 

doubt." In being so instructed, the jury was adequately 

informed that the State had to prove "without consent" beyond a 

reasonable doubt; the burden was not shifted to the defendant to 

prove "consent. " 

Montana law does not require resistance to the point of 

the victim's putting her life in jeopardy, nor does the law 

require continuous resistance. State v. Glidden (1974), 165 

Mont. 470, 474, 529 P.2d 1384, 1386. Here the jury was 

instructed that the victim need only resist to the extent that is 

reasonable, and that continued resistance is not necessary to 

show that the act was done without consent. This is a correct 

statement of the law and we find that the district judge properly 

ref used defendant's proposed instructions . The defendant next asserts that the evidence does not support the verdict, citing several items of incons istent testimony. 

The defendant was in poor physical condition, and seemingly not 

able to sustain this rigorous sexual activity. The defendant's 

behavior after the crime was inconsistent with that of a person 

who had committed kidnapping and rape. He went to work and 

behaved normally. He did not bother to clean his vehicle, either 

inside or out. No sperm was found in the vagina nor on the 

clothing or other parts of the victim. 

In reviewing the evidence, this Court will view it in the 

light most favorable to the prevailing party. State v. Caryl 

(1975), 168 Mont. 414, 422, 543 P.2d 389, 394. This Court is not 

the trier of fact and will not overturn the jury's verdict if 

there is substantial evidence to support it. State v. Stoddard 

(1966), 147 Mont. 402, 408, 412 P.2d 827, 831; State v. Kirkaldie 

(19781, Mont. , 587 P.2d 1298, 1305, 35 St.Rep. 1532, 

1539. 
In addition to the testimony of the complaining witness, 

there is substantial evidence in the record which corroborates 

her testimony. The testimony concerning the whereabouts of 

defendant and the victim placed them both at the scene of the 

abduction at about the same time. A woman in the neighborhood 

heard a scream at the time of the abduction. She also heard a 

flapping noise like someone wearing sandals. Ms. Church was 

wearing sandals at the time of the abduction. 

The police found a piece of the victim's fingernail and 

the victim's pubic hair in defendant's car. One of defendant's 

head hairs was discovered on the victim's blouse, and a pubic 

hair microscopically similar to the victim's was found in 

defendant's pubic hair combings. The victim herself found the 

defendant's wallet on the ground at the scene of the rape, and it 

contained a picture of the defendant. She positively identified 

her assailant from the wallet photo shortly after her release, 

and later identified him in Court. 

We will not overturn the verdict of the jury, based as it 

is on substantial credible evidence. 

Prior to sentencing, the district judge conducted an inchambers interview with the victim in order to determine her 

feelings as to an appropriate sentence. The defendant was not 

present. Both the State and defense counsel were denied any 

cross-examination. Defense counsel objected to the interview and 

contends that this was a denial of defendant's right to confront 

and cross-examine. 

The United States Supreme Court has found no violation of 

due process rights in denying confrontation and cross-examination 

of witnesses in a sentencing hearing, Williams v. New York 

(1949) I 337 U.S. 241, 250- 251, 69 S.Ct. 1079, 1085, 93 L.Ed 

1337, 1344, and this Court in State v. Orsborn (1976), 170 Mont. 

480, 485, 555 P.2d 509, 512, noted that "under section 95-2205 

(now 46-18-113, MCA), the right of cross-examination in a presen- 
tencing hearing is a discretionary matter with the trial court." 

The Orsborn court was concerned with the possible use of inaccurate information, and the effect that a sentencing decision, 

based on misinformation, has on the due process rights of the 

defendant. In Orsborn, the court found that despite a denial of 

cross-examination, there were sufficient safeguards, under the 

circumstances, to prevent a violation of defendant's rights. The 

defendant was present at the hearing, the judge told the defendant the facts that he was relying on, and he gave the defendant 

an opportunity to refute the information. State v. Orsborn, 

supra, 170 Mont. at 485-86, 555 P.2d at 512, 513. 

The situation in the instant case does not present the same 

protections to defendant's rights. The interview was conducted 

on the district judge's own initiative and was held in chambers 

without the defendant present. No cross-examination was allowed, 

nor was any opportunity given to the absent defendant to refute 

the information. We find this procedure to violate defendant's 

right to be sentenced under circumstances free from misinformation. 

In so holding, we have not determined that interviewing 

the victim of the crime is per se violative of a defendant's 

rights. We are reaffirming our holding in Orsborn that a 

sentencing judge may utilize information from sources other than the 

testimony of witnesses in open court, if there is adequate protection of the defendant's rights. But in this case, we find an 

abuse of discretion in the manner in which the interview was 

conducted. 

The United States Supreme Court noted in Williams v. New 

York, supra, that "leaving a sentencing judge free to avail himself of out-of-court information . . . does secure to him a broad 

discretionary power, one susceptible of abuse." Williams, supra, 

337 U.S. at 251, 69 S.Ct. at 1085, 93 L.Ed at 1344. Here, 

despite the fact that the district judge did not follow the 
victim's recommendation as to the sentence, we have no way to 

determine whether the judge s discretion concerning the length 

of the sentence was affected by this interview. For that reason, 

we must vacate the sentence imposed on the defendant and remand 

for resentencing . Defendant next alleges that the district judge erred in 

not granting him a new trial, in that defendant was able to bring 

new evidence before the court. He submitted an affidavit to the 

court containing the testimony of Dr. Stratford, a psychiatrist, 

who examined defendant af ter trial. Defense counsel indicates 

that prior to trial he had repeatedly asked defendant to submit 

to an examination, but defendant refused to do so. When he 

finally was examined, defendant was found to have been either 

unconscious or in a disassociative mental state at the time of 

the crime. 

Section 46-16-702, MCA, governs the District Court's decision to grant a new trial. The district judge may do so "if 

required in the interest of justice." That decision is based on 

the discretion of the trial judge and will not be overturned 

unless this Court finds an abuse of discretion. State v. Lewis 

(1978), 177 Mont.474, 582 P.2d 346, 351, 35 St.Rep. 1089, 1095. 

This Court has noted that applications for new trials on 

the ground of newly discovered evidence are not favored, for the 

reason that a defendant has already had ample opportunity to prepare and present his case. State v. Greeno (1959), 135 Mont. 

580, 586, 342 P.2d 1052, 1055. However, in certain instances, 

the information discovered may require a new trial. In Greeno, 

supra, this Court set out certain rules: 

" (1) That the evidence must have come to the 

knowledge of the applicant since the trial; 

" (2) that it was not through want of diligence 

that it was not discovered earlier; 

"(3) that it is so material that it would probably produce a different result upon another 

trial;" 
" . . ." State v. Greeno, supra, 135 Mont. at 586, 

342 P.2d at 1055. 

Certainly, each case must be decided on its own facts. In 

the present case, we find that the evidence could have been 

discovered with due diligence. Defendant was encouraged by counsel to have an evaluation before trial, but it was only after a 

guilty verdict was returned that defendant decided to look into a 

possible defense of mental disease or defect. This is not a sufficient reason for the District Court to grant a new trial. 

Defendant waived his right to rely on that defense and to allow 

him to do so now would create a problem of possible multiple 

trials. A defendant could gamble on a verdict of "not guilty" 

at trial, but if convicted, he could then come back to court with 

the defense of mental disease or defect. 

The district judge did not abuse his discretion in denying 

the motion for a new trial. Despite the existence of newly 

discovered evidence, the judge was correct in finding that it 

could have easily been discovered prior to trial. 

Appellant next points out that the district judge 

concluded that defendant was either a liar or a schizophrenic. 

Defense counsel contends that this conclusion, set out in the 

judge's "reasons for sentencingn memorandum, was based on 

incorrect information which defendant did not have an opportunity 

to refute. 

Because of our decision that the defendant's sentence must 

be vacated and the case remanded for resentencing, we need not 

address this issue. Defendant is aware of the information contained in the presentence report and can prepare to refute any 

information which he considers to be erroneous. 

The jury found defendant guilty on October 15, and he was 

sentenced on November 9 to ten years on each count, to be served 

concurrently. At that time, Judge Gary refused to designate him 

as either "dangerous" or "nondangerous" because he wanted a 

psychological evaluation of defendant done. Defendant was 
declared "nondangerousn on March 14, 1980. Appellant contends 

that this delay in designation constitutes cruel and unusual 

punishment and should be void for lack of certainty. 

Appellant cites no authority to support his contention 

that this failure to so designate him constitutes cruel and unusual punishment and we find no merit in this claim. In Gregg v. 

Georgia (1976), 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 

L.Ed.2d 859, 874-75, the Supreme Court determined that "at least 

. . . the punishment must not involve unnecessary and wanton 

infliction of pain . . . Second, the punishment must not be 

grossly out of proportion to the severity of the crime ." There 

are no such allegations here. 

As to the uncertainty caused by the delay, section 

46-18-102, MCA, provides that the sentence must be rendered 

within a "reasonable time." This Court has not defined 

"reasonable time, " but most jurisdictions relegate the decision 

of reasonable time to the discretion of the sentencing judge. A. 

Campbell, -- Law of Sentencing, (1978), S71. Delays will be upheld 

if they are found to be in the interests of justice, Treakle v. 

United States (9th Cir. 1964), 327 F.2d 82, 83, and allowing the 

judge to obtain more information about the offender has been 

found to be in the interest of justice. Bolduc v. U.S. (5th Cir. 

1966), 363 F.2d 832, 833-34. 

In this case, it appears that the district judge was concerned with treating defendant justly by requesting the 

evaluation. Any delay appears to have been in the best interests 

of the defendant and was reasonable under the circumstances. 

Additionally, the lack of designation requires that the defendant 

be considered nondangerous for purposes of parole. Section 

46-18-404(3), MCA. Thus we find that there was no prejudice to 

the defendant. 

The district judge denied defendant's request to be present at a post-conviction hearing held to determine whether 
defendant was eligible for bail pending appeal. Appellant contends that defendant's presence was required. 

Defendant is not required to be present at proceedings 

occurring af ter the verdict, because such proceedings are not 

part of the trial. State v. Peters (1965), 146 Mont. 188, 405 

P.2d 642. In Peters, defendant was not present at a motion for a 

new trial, which this Court found was not error. State v. 

Peters, supra, 146 Mont. at 197, 405 P.2d at 647. The same 

reasoning applies here. 

Appellant argues that the court should have had the benefit of seeing Higley's demeanor and his attitude toward the 

court. This argument is also without merit. The district judge 

had a week-long trial during which to view defendant. 

Appellant's last claim is totally frivolous. The State 

concedes that the defendant has a right to all relevant portions 

of the transcript for purposes of appeal. However, the State 

asserts that defendant has not requested any portions of the 

transcript which have not been furnished to him, nor does the 

appellant specify any portions which he has not received. There 

is no error. 

We aff irm the defendant's conviction. We vacate the sentence and remand for resentencing. 

Chief Justice