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: LarryW. 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

# 57

## 198Q

Filed:

# gF@ 1'71980

-+."fi,,

,- "' 9'9'., t'7tLq t:t: pi.,, j '+.,, 

### ;ji;';p! ClerkMr. Chief JusticeFrank I. Haswell delivered the Opinion of the Court. Defendant 

### was convicted inDistrict Court, Gallat in County, of kidnapping and sexual intercourse without consent. He



### was sentenced totenyears in the StatePrison 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 

### writof supervisory control, asking this Court to find that the districtjudge, Powell County, was without jurisdiction to admit defmdant to bail. 

### We consolidated the appeal and the application for the 

### writ. We affirmthe conviction and deny the State's application forthe 

### writ, finding the issue of bail pending appeal to be moot by reason of our decision to affirmthe conviction. On June 29, 1979, at about 1:30 

### a.m., Lynette Church left

a bar indowntown Bozeman and began walking toward her home. 

### Near the hospital onNorth 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 inBridger Canyon. During the drive, and at the stopping point in the Canyon, the defendant forced her toengage invarious actsof 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 eventuallymanaged to get the wallet into herpocket. Atabout 3:00 a.m., the defendant dropped Lynette off in downtown Bozeman and she walked home. Athome she called the Bozeman Help Center and laterwent to the hospital with members of the Help Center's Rape Outreach Team. Prior togoing to the hospital, Linnie examined the wallet and found a driver's license with a picture. She determined thatthiswas a picture of the man who had attacked her. Atthe 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 searchwarrant, 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 thatday. On Monday, July2, defendant's attorney requested that 

### a preliminary examination be held that afternoon. The Stateobjected and no examination 

### was held. The defendant made no furtherrequest, 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 guiltyon October 15. The defendant

### was sentenced on November 9, 1979, following an interviewbetween the judge and the victim as 

### to her feelings about the appropriate sentence. The defendantwas not designated "dangerous" 

### or llnon-dangerous" until fourmonths 

### 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 identificationby the victim, utilizingonly one photograph, so suggestive as to require suppression of any in-court identification? 3. Is the defendant denied his constitutional right to confront hiswitnesses, by operation of section45-5-503 (5), MCA, precluding evidence of the victim's sexual conduct, and Rule 608, Mont.R.Evid., precluding testimony 

### as 

### to specific instances of awitness1conduct and certain cross-examination? 4. May the District Court 

### allow introduction of evidence attrial which 

### was not specified inthe order drawn up following

anomnibus hearing? 5. 

### Was the defendant entitled 

### to 

### a cautionary Smith-type instruction, because the substantive facts

### were inquestion at 

### trial and there

### was scantymedical evidence of intercourse? 6. Is defendant entitled to an instruction 

### as to the necessity that the victimmanifestly objected to the act of intercourse?7. Does the evidence support the verdict? 8. Is the district judge permitted to interview the vic

### timon the issue of sentencing without allowing the defendant 

### to cross-examine the victim? 9. Did the district judge 

### err indenying defendant a new trial, when defendant 

### was able, aftertrial, 

### to produce evidence of mental disease ordefect? 10. Was defendant denied hisdue process rights by the use of incorrect information at sentencing? 11. Does defendant have a right 

### to be present atpostconviction 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 afternoon. The county attorney received oral notice that 

### a hearing would be held thatday. The Stateobjected to the hearing on suchshortnotice and 

### it 

### was not not held. Defendant made no further request and he 

### was released on bond on July3. The county attorney filed an information inDistrict Court on July

Defendant contends thathe has a right to a preliminary

exam if he has not waived it 

### or if the District Court has not previouslygranted leave to filedirect. The right 

### to a preliminary examination 

### arises under section46-7-103, MCA: Preliminary hearing injustice'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 injustice'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 injustice court, or it may be made by application to the District Court judge, presenting by affidavit such evidence 

### as the judge may require. Section 46-11-201, MCA. The only requirement is that there is anindependent judicial determination of probable cause and the defendant has no vested right to eitherprocedure. Gerstein v. Pugh (1975), 420 U.S. 103, 120, 95 S.Ct. 854, 866, 43 L.Ed.2d 54, 69; Statev. Dunn (1970), 155Mont. 319, 325, 472

Many states 

### set forthprecise 

### timelimitswithinwhich the Statemust hold the preliminary examination if the District Court has not granted leave 

### to file an information. The federal statuteprovides: "such examination shallbe heldwithin a reasonable timebut in later tEan 10 

### ---- 

### -- days following the initialappearance if the 

### - defendant 

### is incustody and no 

### later than20 

### ----- -- days ifhe 

### is not incustody, 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).Ascan be seen under the federal statute, then, any 

### time beyond 20 days 

### is viewed as unreasonable if the defendant is not incustody. In the instant

### case, defendant 

### was out on bond and waited only 10days between his initial appearance and the determination of probable cause. The previous federal rule required a hearing ina reasonable 

### timeonly. In

### James v. Lawrence (D.C. Cir. 1949), 176F.2d 18, 20, the court found that 18days 

### was not unreasonable. There the State asked for a continuance and the court noted that it must consider 

### time for the government 

### to prepare, incomputing 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 thatwhat constitutes 

### a reasonable 

### timemust be determined by the factsof the 

### case. If the charge 

### is serious, both sidesneed 

### time to prepare; whether the charged is out on bond 

### is another factorwhich 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 16days 

### was not

an unreasonable amount of 

### time. We find that 

### a 10-day delay indetermining 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 filewas 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 inState

### v. Dunn, supra, 155Mont. at326, 472 P.2d at 293, the preliminary hearing is not meant 

### to be 

### a "fishing expedition" for allpossible evidence, and if probable cause 

### is established tothe satisfaction of the districtjudge by the county attorney's affidavit, the defendant has little reason to complain. In this case, the districtjudge found probable cause on the strength of the information presented 

### to him by affidavit. Based on the amount of evidencepresented at trial, 

### we can find no 

### error in the State's failing tohold 

### a preliminary examination. There was substantial evidence 

### to support 

### a conviction, and the defendant, who relied on the defense of alibi, admitted that thiswitness had no relevance tohisdefense of alibi and 

### was not listed as an alibiwitness. Under the circumstances it 

### is doubtful that a preliminary examination would have secured any advantage 

### to the defendant. See Statev. Johnson (1967), 149Mont. 173, 178, 424 P.2d 728, 731. Appellant next contends that the pretrial identification of the defendantby one photo 

### was so suggestive thatMs. Church should not have been permitted tomake an in-court identification. He argues that allevidence 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 victimonlyone photo. This process may be so suggestive and 

### so conducive tomistaken identification as to deny due process. Stovallv. Denno (1967), 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18L.Ed.2d 1199, 1206; Neilv. 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 ina findingof denial of due process. The Montana Court, in Statev. Lara (1978), Mont

# . I 587 P.2d 930, 35 St.Rep. 1699, enunciated its two-pronged test todetermine whether 

### or not the identification should be suppressed: "First, was the identificationprocedure impermissibily suggestive; and, second, if 

### so, did itunder the totalityof the circumstances have such a tendency to give 

### rise to a substantial likelihood of irreparable misidentification.

# . .I1 Statev. 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 identificationof 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 thatpoint 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 satisfydue process. InNeil, suprq the Court set forth some of the factors 

### to be considered injudging reliability: "We turn, then, to the central question, whether under the 'totality of the circumstances' the identification

### was reliable even though the con£rontation 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 timeof the 

### crime, the witness' degree of attention, the accuracy of the witness1prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of 

### timebetween the 

### crime and the confrontation." Neil, supra, 409 U.S. at 199-200, 93 S.Ct. at 38-4 L.Ed.2d 

### at411. Here the victim spent about one and one-half hours with defendant, both inhis 

### car and inBridger Canyon, and she

### was forced to engage in intimatephysical activitywith him. Attwo different

### times, the interior 

### car light 

### came on, giving the victiman opportunity to view her assailant. Additionally, although the victim's priordescriptionof defendant

### was limited indetail, her description 

### was accurate. She told the police that her assailanthad blonde hair, 

### was fairlyheavy set and 

### was very light skinned. She 

### also stated thather assailant's hair 

### was shorter

### at the 

### time of the offense than at the time the photograph 

### was taken, and that she did notremember thather assailant had a mustache as was shown in the photo. In fact, the defendant's hair was shorterat the 

### timeof his 

### arrest and he did not have a mustache. Hishair

### was blonde and he had a light complexion. Little

### timeelapsed 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 districtjudge 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 confrontwitnesses. Section 45-5-503 (5)prevents introductionof evidenceof the victim's sexual conduct and provides inpart: "No evidence concerning the sexual conduct of the victim is admissible inprosecutions 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, MONTCLIRC1sMontana Criminal Code Annotated,

Rule 608(b)

## ,M0nt.R. Evid

# .,provides inpertinent 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 truthfulnessor untruthfulness, be inquired into on 

### crossexamination of the witness (1)concerning his characterfor truthfulnessoruntruthfulness

# . .."

Based on these provisions the Stateobtained an order inlimine toprevent defendant from callingMrs. Sorenson, Linniels landlady, who 

### was expected to testify thatLinnie laughed after being asked by her roommate: "Where 

### are allof Bozemanls rapists? Linnie needs tobe raped again.I1 Appellant's position is that by being precluded from bringing in thiswitness 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 SixthAmendment guarantees a criminal the right 

### to testimony of witnesses inhis favor. Washington 

### v. Texas (1967), 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18L.Ed.2d 1019, 1023. However, 

### it does not guaranteehim 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 thisconsideration inChambers v. Mississippi (1972), 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297, 313: "In the exercise of thisright, 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 inquestion must be scrutinized 

### to determine whether they



### are arbitrary

### or whether they serve a legitimate competing interest. Chambers, supra, 410 U.S. at295, 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 forkeeping 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 thismethod of proof, it is generally restricted 

### to situationswhere 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 ina 

### case such as this. Thus the potentiallydamaging evidence of specific 

### acts and prior conduct should be kept from the jury. Wefind 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 probativeof the truthfulness

### or untruthfulness of the witness. It 

### is doubtful that testimony concerning the victim's sexual views

comes within thisrule at all, and it is clearlywithin the judge's discretion 

### to exclude this evidence if it is irrelevant

ortoo prejudicial. See Commission Comments, Rule 608(b), M.R.Evid. In addition to being prejudicial, thiskind of evidence has little if any probative value. Thus, 

### we find no 

### merit in defendant's argument, and find that the districtjudge properly kept this evidence from the jury. Appellant next contends that the districtjudge's denial of hismotion 

### to suppress 

### tworeports from the Montana Criminal Investigation Lab constitutes reversible 

### error. He claims pre judicial surprise because these reports

### were not contained inthe "Omnibus Hearing Order." Pursuant to local Rule 10A "Criminal Omnibus Hearing," the districtjudge scheduled an omnibus hearing forSeptember 25, 1979, a few weeks before trial. Atthat time the Statemade available to the defense a report from the Montana Criminal Investigation Lab. The day before 

### trial the Statenotified defendant that two additional reportshad just been madeavailable by the lab. The following day, at trial, the State calledArnold Melnikoff, Bureau Chief of the Lab to testify. At that

### time defense counsel moved to suppress the evidence in reports 

### two and three. The districtjudge 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 inviolating an omnibus order. InStateof Montana v. District Court, (1979), Mont.



## , 590 P.2d 1104, 1109, 36 St.Rep. 161, 166- 167, thisCourt directed the District Courts 

### to adopt an omnibus hearing procedure inorder to "schedule, resolve and determine pretrial motions, applications and requests, including the calendaring and scheduling of the trial.I1 Pursuant 

### to thisdirective, 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 clearlymeant to expedite and simplify the trial of a criminal 

### case by getting allparties together on the contested issues and 

### to facilitatediscovery 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 discoveryprocedures outlined in section46-15-301 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 thisrule and prior 

### to or during trial, a party discovers additional material previously requested which is subject to discovery or inspection under thisrule, he shallpromptly notify the otherparty orhis attorney

### or the court of the existence of the additional 

### material. The court shallexclude any evidence not presented for inspectionor copying pursuant 

### to thisrule unless good cause 

### is shown for fa.ilure

### to comply. In the 

### lattercase 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 thisevidence indi

### cates that the State

### was unaware of the results of the two 

### tests until the day before 

### trial. The Statenotified defense counsel atthat 

### time. The defendant took no action until the 

### matter came up at trial. In a somewhat analagous situation, defendant in Statev. 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 toobject because of "defendant's failure to filea demand and motion for thismaterial until aftertrial had begun." McKenzie, supra, Mont. at 

## , 608 P.2d at443, 37 St.Rep. at 337.Also as inMcKenzie, defendant here 

### claims surprise. We noted in that 

### case that "the proper procedure where surprise is claimed

# . .. is to ask for

### a continuance so thatdefendant may prepare. " McKenzie

## ,supra, Mont. at 

## ,608 P.2d at441, 37 St.Rep. at 335. Despite the fact thatdefendant knew of the new information prior 

### to trial, he did not request a continuance. However, afterthe trial had commenced, the districtjudge 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 hisperceptions 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 Statepurposely attempted towithhold evidence from the defendant. Additionally, the defendant by-passed hisopportunity 

### to have the trial continued when he found out about theevidence the day before 

### trial. Clearlythe new evidence 

### was very damaging to the defendant, but the districtjudge granted him an overnight continuance on learning of the evidence. We find no

error

### to defendant inthisprocedure. Appellant next argues that

### a cautionary instruct ion should have been given to the jury, because here the substantive facts



### were inquestion and there 

### was scanty medical evidence of intercourse. The appellant 

### is clearly asking this Court to devise new situations inwhich the following kind of instruction should be given: "You 

### are instructed thatno charge can be 

### more easilymade and none is 

### more difficult 

### to disprove than thatof 'rape'. The jury is instructed that they must examine the complainant's testimony with caution and be satisfiedwith all aspects thereof beyond a reasonable doubt." Wehave considered this instruction in several 

### cases over thepast few years and have sanctioned 

### its use only invery limited circumstances. In the 

### case of Statev. Ballew (1975), 166 Mont. 270, 532 P.2d 407, 

### we noted several situations inwhich this instruction is appropriate: 

### "[I] 

### t 

### is clear that refusal to give such an instruction willbe 

### error onlywhen 

### some specificcause is shown fordistrusting the testimony 

### of the complaining witness. Such causes might include manifest malice, desire forrevenge, 

### or an absence of corroborating evidence tending 

### to support the facts testified 

### to by the complaining witness." Statev. Ballew, supra, 166Mont. 

### at276, 532 P.2d at411. Since the Ballew 

### case 

### was decided, this Court has narrowed the rule, finding that absence of corroboration alone 

### is not sufficientreason 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 areaof testimony may give 

### rise todistrust." Statev. Pecora (1980), Mont

# . I P.2d 

## , 37 St.Rep. 1742, 1744. See also Statev. Smith(1980 I Mont

# . ,609 P.2d 696, 699, 37 St.Rep. 583, 587. The situation in the present 

### case would not necessitate this instructionunder eitherBallew orPecora. There 

### was no evidence of any desire forrevenge, 

### or any indication

### of any 

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

### to having never even seen each otherprior 

### to the night inquestion. Additionally, the record shows evidence corroborating the victim's testimony. A neighbor heard a woman 

### scream atapproximately the 

### same timethat the victim testified to being abducted. A piece of the victim's glasses was found in the vicinity of the claimed abduction. A microscopically similarpubic hair of the victim's 

### was found indefendant's 

### car. A pubic hairmicroscopically 

### similar 

### to the victim's 

### was found indefendant's pubic hairs. A hand printmatching 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 vic

### timtestified to finding during the course of the sexual 

### acts. Based on this evidence and additional evidence inthe record, 

### we conclude that there

### was no basis foroffering 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 todefendant 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 instructionwhich 

### was refused: "The court instructs the jury that it 

### is the 

### law of thisState that a woman assaulted with an intent to 

### commit rape upon her 

### is not required to 

### resist by 

### all violentmeans withinherpower. The 

### lawrequires only that she does not consent, and that she do all thather age, strength andthe attendant circumstances make it reasonable forher to do inorder 

### 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 furtherresistance useless

### or impossible." The instructionwhich 

### 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 orthreat 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; theremust be actual resistance, orexcuse, 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 orgenuine 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), 153Mont. 369, 376, 457 P.2d 453, 457, but thecourt 

### is not required to instruct on incorrect 

### law, State

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

### or on every nuance of a defense theory. Statev. Hamilton (1980), Mont

# . , 605 P.2d 1121, 1129, 37 St.Rep. 70, 78-79. Indetermining whether 

### or not the jury was properly instructed as to the defense's theory, thisCourt willlook at the instructions as a whole. Statev. Caryl, supra, 168Mont. at 430, 543 P.2d at 398. InstructionNo. 6 told the jury thatdefen-dant

### was charged with "sexual intercourse without consent," and that "every

### material fact necessary 

### to constitute such 

### crime must be proved by the Stateby competent evidence, beyond a reasonable doubt." In being 

### so instructed, the jury 

### was adequately informed that the Statehad 

### 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 injeopardy, nor does the 

### law require continuous resistance. Statev. 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 statementof the 

### law and 

### we find that the districtjudge properly refused defendant's proposed instructions

# . The defendant next 

### asserts that the evidence does not support the verdict, citing several 

### items of inconsistenttestimony. The defendant

### was inpoor physical condition, and seemingly not able to sustain thisrigorous sexual activity. The defendant's behavior after the 

### crime was inconsistentwith thatof a person who had committed kidnapping and rape. He went to work and behaved normally. He did not bother 

### to cleanhisvehicle, either inside orout. No spermwas found inthe vagina nor on the clothing 

### or otherparts of the victim. Inreviewing the evidence, thisCourt willview it inthe lightmost favorable 

### to the prevailing party. Statev. Caryl (1975), 168Mont. 414, 422, 543 P.2d 389, 394. This Court is not the trier of fact and willnot overturn the jury's verdict if there is substantial evidence to support it. Statev. Stoddard (1966), 147Mont. 402, 408, 412 P.2d 827, 831; Statev. 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 victimplaced them both at the scene of the abduction 

### atabout the 

### same time. A woman in the neighborhood heard a 

### scream atthe 

### 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 indefendant's 

### car. One of defendant's head hairs 

### was discovered on the victim's blouse, and a pubic hairmicroscopically 

### similar to the victim's 

### was found in defendant's pubic hair combings. The victimherself found the defendant's 

### wallet on the ground atthe scene of the rape, and 

### it contained a picture of the defendant. She positively identified her assailant from the wallet photo shortlyafterher 

### release, and 

### later identified him inCourt. Wewillnot overturn the verdict of the jury, based 

### as it is on substantial credible evidence. Prior 

### to sentencing, the districtjudge conducted an inchambers interviewwith the victim inorder 

### to determine her feelings as 

### to an appropriate sentence. The defendant

### was not present. Both the Stateand 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 indenying confrontation and cross-examination of witnesses ina sentencing hearing, Williamsv. New York (1949) I 337 U.S. 241, 250- 251, 69 S.Ct. 1079, 1085, 93 L.Ed 1337, 1344, and this Court in Statev. Orsborn (1976), 170Mont. 480, 485, 555 P.2d 509, 512, noted that "under section95-2205 (now46-18-113, 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 rightsof the defendant. InOrsborn, the court found thatdespite a denial of cross-examination, there

### were sufficient safeguards, under the circumstances, 

### to prevent a violationof defendant's rights. The defendant

### was present at the hearing, the judge told the defendant the facts thathe 

### was relying on, and he gave the defendant

an opportunity 

### to refute the information. Statev. Orsborn, supra, 170Mont. 

### at485-86, 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 districtjudge's own initiative and 

### was held in chambers without the defendantpresent. No cross-examination 

### was allowed,

nor 

### was any opportunity given to the absent defendant 

### to refute the information. We find thisprocedure to violate defendant's right 

### to be sentenced under circumstances free from misinformation.In 

### so holding, 

### we have not determined that interviewing the victimof the 

### crime is per se violative of a defendant's rights. We 

### are reaffirming our holding inOrsborn that a sentencing judge may utilize information from sources other than the testimony of witnesses inopen court, if there is adequate protection of the defendant's rights. But in thiscase, 

### we find an abuse of discretion in the manner inwhich the interview

### was conducted. The United StatesSupreme Court noted inWilliams v. New York, supra, that "leaving a sentencing judge free to avail himself of out-of-court information

# . . .does secure to him a broad discretionarypower, 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 districtjudge did not follow thevictim'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 thatreason,



### we must vacate the sentence imposed on the defendant and remand forresentencing

# . Defendant next alleges that the districtjudge erred in not granting him a new 

### trial, inthatdefendant

### 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 thatprior to trial he had repeatedly asked defendant to submit toan 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 districtjudge may do so "if required in the interestof justice." That decision is based on the discretion of the trial judge and willnot be overturned unless this Court finds an abuse of discretion. Statev. Lewis (1978), 177Mont.474, 582 P.2d 346, 351, 35 St.Rep. 1089, 1095. This Court has noted that applications fornew trials on the ground of newly discovered evidence 

### are not favored, for the

reason that a defendant has alreadyhad ample opportunity 

### to prepare and present his case. Statev. Greeno (1959), 135Mont. 580, 586, 342 P.2d 1052, 1055. However, incertain 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;""

# ..." Statev. Greeno, supra, 135Mont. at586, 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 evaluationbefore 

### trial, but it 

### was only after

### a guiltyverdict was returned thatdefendantdecided 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 relyon that defense and to 

### allow him todo 

### 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 ordefect. The districtjudge did not abuse hisdiscretion indenying the motion for 

### a new trial. Despite the existence of newly discovered evidence, the judge 

### was correct infinding that it could have easilybeen discovered prior to trial. Appellant next points out that the districtjudge concluded thatdefendant 

### was eithera liar

### or a schizophrenic. Defense counsel contends that this conclusion, 

### set out in the judge's "reasons for sentencingnmemorandum, 

### was based on incorrect information which defendant did not have an opportunity 

### to refute. Because of our decision that the defendant's sentencemust be vacated and the 

### case remanded forresentencing, 

### 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. Atthat 

### time, Judge Gary refused 

### to designatehim



### as either "dangerous" 

### or "nondangerous" because he wanted a psychological evaluationof defendantdone. Defendant 

### wasdeclared "nondangerousn on March 14, 1980. Appellant contends that thisdelay indesignationconstitutes cruel and unusual punishment and should be void forlackof certainty. Appellant 

### cites no authority to support his contention that this failure 

### to 

### so designatehim constitutes cruel and unusualpunishment and 

### we find no 

### merit inthisclaim. 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 inflictionof pain

# ..

# . Second, the punishment must not be grosslyout of proportion 

### to the severityof 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." ThisCourt 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 willbe upheld if they 

### are found 

### to be in the interestsof 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 interestof justice. Bolduc v. U.S. (5th Cir. 1966), 363 F.2d 832, 833-34. In thiscase, it appears that the districtjudge 

### 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 designationrequires that the defendant be considered nondangerous forpurposes of parole. Section 46-18-404(3), MCA. Thus 

### we find thatthere was no prejudice to the defendant. The districtjudge denied defendant's request 

### to be presentat

### a post-conviction hearing held 

### to determine whetherdefendant

### was eligible for bail pending appeal. Appellant contends that defendant's presence 

### was required. Defendant is not required to be present atproceedings occurring af

### ter the verdict, because such proceedings 

### are not part of the trial. Statev. Peters (1965), 146Mont. 188, 405 P.2d 642. InPeters, defendant was not present at a motion fora

new trial, which thisCourt found 

### was not 

### error. Statev. Peters, supra, 146Mont. at 197, 405 P.2d at 647. The 

### same reasoning applies here. Appellant argues that the court should have had the benefitof seeingHigley's demeanor and hisattitude 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 allrelevant portions of the transcript forpurposes of appeal. However, the State 

### asserts that defendant has not requested any portions of the transcriptwhich have not been furnished 

### to him, nor does the appellant specify any portions which he has not received. There 

### is no 

### error. We aff

### irmthe defendant's conviction. Wevacate the sentence and remand forresentencing.

Chief Justice