No. 89-366 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

STATE OF MONTANA, Plaintiff and Respondent,-vsFRANK HENRY, Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District, In and for the County of Lake, The Honorable C.R. McNeil, Judge presiding. COfJNSELOF RECORD: For Appellant: Timothy J. Lape, Polson,Montana For Respondent: Hon. Marc Racicot, Attorney General, Helena,Montana Jennifer Anders, Asst. Atty. General, Helena Larry J. Nistler, County Attorney; Mark L. Sterrnitz, Deputy, Polson,Montana

Submitted on Briefs: Dec. 1, 1989 Decided: March 2, 1990

Filed:Justice Diane G. Barz delivered the Opinion of the Court.

Defendant Frank Henry was charged by information with the offense of sexual intercourse without consent pursuant to § 45-5- 503(1)

## , MCA. Defendant pled not guilty. A jury trial was held January 5 and 6, 1989. The jury returned a guilty verdict on January 6, 1989. Defendant appeals the conviction. We affirm. The following three issues are raised on appeal. 1. Whether the jury panel was selected contrary to law and in violation of defendant's right to a trial by a fair and impartial jury; 2. whether the District Court erred in denying defendant's motion to dismiss the chargebased upon the alleged suppressionof exculpatory evidence; and 3. whether theDistrictCourt erred inallowing intoevidence photographs of scratches on defendant's torso. On September 20, 1988, Samantha Kenmille accompanied her sister and brother-in-law, Lori and Darrell Gross, to theWolf Den Bar in Polson,Montana. After consuming severalbeers at theWolf Den, the triowent to the Smokehouse Bar where they remained until closing. While at the Smokehouse Bar, Darrell Gross introduced SamanthaKenmille to defendant,Frank Henry. Samanthahad not met defendant prior to that evening. At the closing of the Smokehouse Bar, Samantha, Lori, Darrell and defendant left the bar to go to Jack and Zoe Dulongs'house fora party. At the Dulong residence, the defendant and Samantha engaged in conversation and became physically friendlyby kissing. After aboutoneand one-half hours 2at the Dulong residence, defendant invited Samantha, Lori and Darrell to his house for a sauna. The four left in the Grosses1 van, however, only defendant and Samantha were dropped off at defendant'shouse because Loriand Darrell decided toreturn to the party. Once at defendant's house, the two sat in the living room and watched television. Prior to entering the sauna, Samantha expressed to defendant that she would like to leave. Defendant, however, insisted that she stay since the sauna was ready and he did not want to waste energy. Samantha followed defendant to the

sauna and entered the sauna room by herself fully clothed. Defendant slammed the sauna door behind her and held it shut for ten or fifteenseconds. Samantha testified thatdefendant'santics frightenedher. Upon opening the door, defendant laughed and told her that he usually takes his clothes off before taking a sauna. Defendant then left the bathroom area. Samantha shut the bathroom door, undressed and entered the

sauna alone wearingher bra and underwear. Defendantundressed in another room and joined Samantha wearing only his underwear. Defendant sat on the bench next to Samantha and kissed her. No other physical contact,hugging 

### or foreplay occurred between them until defendant suddenly forced Samantha's legsapart and tore off her underwear. He also pushed her bra up and began slapping her breasts. Samantha testified that the slaps hurt and she became very afraid. During this time, Samantha tried to push the defendant away and forcefully told him Itno." Defendant, however,was on top of her, physically overpowered her and then had sexual intercoursewith Samantha without her consent. Defendant failed to climax and then ceased the act of intercourse. Defendant subsequently left the sauna. Samantha grabbed her clothes, got dressed, and ran out the door, leavingbehind her torn underwear and coat. She ran back to the Dulongsl house to find her sister Lori and brother-in-law Darrell. Darrell testified that Samanthawas crying and appeared very upset when shearrived back at theDulong residence. Samantha told Lori and Darrell that defendant was a ''jerk1' and that he had ''beather up." All three--Samantha, Lori and Darrell--returned to defendant's house to get Samantha's coat because Samantha was afraid togoback todefendant s houseby herself. On theway back to defendant's house, Samantha admitted to Lori that defendanthad raped her. Once at defendant's house, they knocked on the door and defendant answered thedoorwearing only a pair of pants. Darrell testified that defendant's chest was very red and his arm was scratched. While searching forSamantha's coat,Darrell discovered the torn underwear in the sauna. He confronted defendant, who initially denied doing anything. An argument ensued between the twomen, and Lori at onepoint stood between the twomen and tried to push defendant away from Darrell. Lori and Darrell took Samantha tothepolice station where she

was interviewed by Officer Erickson at approximately 5:30 a.m. Samanthawasvery upset and was initiallyunable the talk about theincident. The officer detected an odor of alcohol but testified that shedid not appeartobe intoxicated. When he discovered that penetration had occurred, the officer called Detective Smith. Detective Smithmarked and bagged Samantha's underwearand senther to the hospital where she was examined. The examining nurse reported bruises on Samantha's left breast and inner thigh. The medical report specified that while no external pelvic trauma existed, Samanthawas "crying,I' "quiteupsetnand "unabletotalk. Defendant was subsequently arrested on the afternoon of September 21, 1988, at the Smokehouse Bar in Polson. In his voluntary statement to the police, he contended that the act of sexual intercourse was consensual. Defendant was charged by information with the offense of sexual intercoursewithout consent

as specified under 5 45-5-503(1), MCA. Defendantpled not guilty. A jury trial was held January 5 and 6, 1989. The jury returned a verdict of guilty on January 6, 1989. Defendant appeals the conviction. The first issue defendant raisesonappeal iswhether the jury panel was selected contrary to law and inviolation of defendant's right to a trial by a fair and impartial jury. In the present case, the court authorized the jury commissionerto excuse thoseprospective jurors who were drawn and called for this trial who had an obvious undue hardship. Those without an obvious hardship were required to obtain a personal

excuse from the court. The court acknowledged that prospective jurorswere dismissed prior to trialwho had demonstrated an unduehardship. Defendant argues that six jurors were excused and that these jurorsdid not submit an affidavit stating their hardship nor was a record kept as to the reason these jurors were excused at the pretrial stage. Apparently, the basis of defendant's pretrial objection is that at least one of the prospective jurors from the jurypool, who qualified to serveas a trial juror,was not in fact called for thisparticular trial. Defendant therefore arguesthat under 3 3-15-313,MCA, the jury panel was selected contrary to law and in violation of his right to trial by a fair and impartial jury. Section 3-15-313, MCA, provides that (1) The court or jury commissioner with the approval of the court shall excuse a person from jury service upon finding that jury service would entail undue hardship for the person or the public served by the person.

(2) If a person believes jury service would entail undue hardship for him or the public served,he may make and transmit an affidavit to the jury commissioner for which he is summoned,statinghis occupation or such other factsashebelieves will excuse him from jury service. The affidavit shall be filed with the jury commissioner, who shall transmit it to the court. The court or jury commissioner with the approval of the court may excuse a prospective juror from jury service if the prospective juror satisfies the provisions of subsection (1)

# . In particular, defendant argues that the submitting of affidavits by those jurors who claim an undue hardship is mandatory under B 3-15-313, MCA, and that failure to do so created a material deviation in procuring a jury and therefore is a denial of defendant's constitutional rights. We disagree.Section 3-15-313(2)

## , MCA, must be read in light of all the statutes addressing juries and jurors. 

### See 95 3-15-101 through -802,MCA. Inparticular, § 3-15-401,MCA,provides that eachyear the chairman of the board of county commissioners and the county clerk and recorder of each county must meet for the purpose of compiling a list of persons to serve asprospective jurors for the ensuing year. Once theseprospective jurors are drawn, the clerk shall serve them notice by mail and require a response by mail as to their qualifications to serve as trial jurors. The clerk may also attach I1aform for an affidavit claiming an excuseasprovided for in 3-15-313. 

# . ." Section 3-15-505, MCA. If a prospective jurordoes not return anaffidavit claiming anunduehardship,that prospective juror is then placed on the jury list for the term specified by the court. When jurors are needed for a pending trial, the jury commissionerwill draw from thepool of jurors the number of jurors ordered to be drawn by the court. Section 3-15- 503(I), MCA. Once the jurors are drawn from the pool, the prospective jurornotifiedmay then attempttodemonstrateanundue hardship so as to be excused from serving on that particular jury panel. Section 3-15-313(1), MCA. If the prospective juror succeeds indemonstratingundue hardship,the jurorwill be excused for that jury trial but will remain on the jury list for the remaining jury term and may be summoned to serve on a subsequent jury during that term. Contrary to what defendant asserts, however, the statutes do not demand the filing of an affidavit demonstratinganunduehardship at this stageof the jury selectionprocess. No deviation occurred in the selection of the impaneled jury in this case. Therecorddemonstrates that thirty prospective jurors appeared on themorning of trial. Of the first twenty-four prospective jurors questioned, only one was excused for cause during voir dire, which left five prospective jurors called for jury duty who were never questioned. As this Court has frequently stated: The accused cannot complain if he is still tried by an impartial jury. He can demand nothing more. The right to challenge is the right to reject, not to select, a juror. If from those who remain, an impartial jury is obtained, the constitutional right of the accused ismaintained. Territoryv. Roberts (1889), 9Mont. 12, 14,22 P. 132, 133 (citing Hayes v. Missouri (1887), 120 U.S. 68, 71, 7 S.Ct. 350, 352, 30 L.Ed. 578, 580);Seealso State

### v. Coleman (1978), 177Mont. 1, 25- 26, 579 P.2d 732, 747. In light of the above, defendant's assertion that he was denied his constitutional right to a trial by an impartial jury because of a deviation in the jury selection process is unfounded and without merit. The second issue raised on appeal is whether the District Court erred in denying defendant's motion to dismiss the charge based upon the alleged suppression of exculpatory evidence. Prior to trial, defendant had filed a motion in limine requesting the exclusion of all evidence concerning the scratches

on his torso because it would potentially refute his defense of consent. Defendant claimed that the reason for exclusion of such evidencewas "that its probative value is substantially outweighedby the danger of unfair prejudice." The District Court denied the motion. At trial, after the State had given its opening statement to the jury,defendant's attorney received from OfficerHunter a copy of a written statement by Lori Gross. The statement stated in pertinent part that: Frank letus in and Darrell asked Frankwhy he slapped Sam. He was saying he didn't and Darrellwalked over to the sauna and picked up Sam's underware [sic], which were all torn. Darrell asked Frank about it and Frank started to attack Darrell so I stepped between them and held Frank back at my arm's length. He didn't have anyvisible scratchesat this time even to when we left so it had to be by his own hand or by unintentionable [sic] mistake of my own hand holding him back 

# . .

# . The record demonstrates that neither defense counsel nor the prosecution had knowledge of Lori Gross's written statement prior to the trial. Upon discovery of Lori Gross's written statement, defendantmade amotion to dismiss. The District Court denied the motion and afforded defendant an opportunity to either interview Lori Gross or subpoena her and call her as a witness prior to the defense concluding its case-in-chief. Defendant's counsel neither interviewed Lori Gross nor subpoenaed her as a witness. Defendant's counsel also did not renew his motion in limine, requesting the exclusion of all evidence concerning the scratches

on defendant's torso. On appeal, defendant's entire argument is based upon the alleged suppression of Lori Gross's written statement. Defendant argues that the alleged suppression of this statement prejudicedhim by denying him the opportunity to present it as an exhibit in support of his pretrialmotion in limine. Defendant,however,had the opportunity to renew his motion in limine after the State's opening statement, but failed to do so. The defendant cannot now raise the issueon appealwhenhe failed to renewhismotionbefore the District Court. As this Court stated in Rasmussen v. Sibert

(1969), 153 Mont. 286, 456 P.2d 835, "[tlo hold otherwise would



# . . .put the trial court in error on an issuewhich had not been presented to it forruling

# . . . Rasmussen, 153Mont. at 295, 456 P.2d at 840. In addition, defendant's argument alleging that the written statement was suppressed iswithout merit in lightof State

v. Kirkland (1979), 184 Mont. 229, 602 P.2d 586,where this Court held that "[e]vidence is not withheld or suppressed if the defendant has knowledge of the facts or circumstances, or if the facts become available to him during trial." Kirkland, 184 Mont. at 243, 602 P.2d at 595. In light of defendant's failure to renewhismotion in limine at the time Lori Gross's written statement was discovered and in light of this Court's holding in Kirkland,we uphold the District Court's decision todeny defendant'smotion todismiss the charge. The third issue raised on appeal iswhether theDistrictCourt erred in allowing into evidence photographs of scratches on defendant's torso. Defendant argues that the District Court erred by allowing into evidence thephotographs illustratingthe scratches that were present on defendant's torso on the evening of September 21, 1988.Defendant arguesthattheprobativevalue of thesephotographswere

never explained to the jury. Defendant also argues that these photographs were introduced to arouse the sympathies and passions of the jury and were not substantially necessary or instructive to material facts. The question of an evidence's admissibility is a question of law, whereas theweight that isattributedto that evidence is left to the trier of fact. When determiningwhether a piece of evidence is admissible, a district courtmust find that the evidence isboth relevant and competent. Rule 403, M.R.Evid., however, further provides that: Although relevant,evidencemay be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. At trial, a district court has the discretion in determining whether the evidence is relevant and also whether the factors 

### in Rule 403,M.R.Evid. would preclude otherwiserelevant evidence from being admitted. Statev. Doll (1985), 214 Mont. 390, 399, 692 P.2d 473, 477. A district court thereforemust determine whether the probative value of verified photographs outweighs any prejudicial effect. Statev. Grant (1986), 221 Mont. 122, 136, 717 P.2d 562,

The foundation testimony forthephotographs in this casewas provided by DetectiveHunter. After being shown the photographs, Detective Hunter testified that he took the pictures on the nightthey arrested the defendant and that the photographs accurately portrayed the scene that was photographed. The State's attorney subsequentlyquestioned defendantas tothe sourceof the scratches and as to whether Lori Gross clawed him with her fingernails. As this Court stated in State v. Sigler (1984), 210 Mont. 248, 688 P.2d 749, a jury is entitled to know the nature and extent of the injuries. Sisler, 210 Mont. at 256, 688 P.2d at 753. The photographs in this casewere relevant in that they aided the jury in understanding the nature and the extent of defendant's injury. The photographs thus were also available to the jury to aide them in determining, along with the other available evidence, the possible source of the scratches. The probative value of a photograph does not necessarily need to be explained to the jury in detail for it to be properly admitted. The District Court did not err in determining that theprobativevalue of thephotographs outweighed the prejudice, if any, to defendant. Affirmed.

We concur: