No. 93-402 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

THE STATE 

-vDANNY RAY 

OF MONTANA, 

Plaintiff/Respondent, 

KELLY, 

Defendant/Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

William F. Hooks, Appellate Defender, Helena, 

Montana 

For Respondent: 

Joseph P. Mazurek, Attorney General; Patricia 

Jordan, Assistant Attorney General; Dennix Paxinos, 

Yellowstone County Attorney; Daniel L. Schwartz, 

Deputy, Billings, Montana 

Submitted on Briefs: April 21, 1994 

Decided: June 21, 1994 

Filed: 
Justice James C. Nelson delivered the Opinion of the Court. 

Following a jury trial, the defendant, Danny Ray Kelly 

(Kelly), was convicted of one count of aggravated kidnapping, a 

felony, in violation of 5 45-5-303 (1) (c) , MCA, and two counts of 

sexual intercourse without consent, felonies in violation of 5 45- 

5-503(1),(3), MCA. Based on that conviction, he was sentenced by 

the District Court for the Thirteenth Judicial District, 

Yellowstone County to imprisonment at the Montana State Prison for 

one hundred years on the aggravated kidnapping charge and to terms 

of forty years on each of the two charges of sexual intercourse 

without consent, to run consecutively to each other and 

concurrently with the term of imprisonment on the aggravated 

kidnapping charge. Kelly appeals the conviction and sentencing. 

We affirm the conviction, and reverse and remand for resentencing. 

The two issues on appeal are as follows: 

1. Did the District Court err in relying on Kelly's 

constitutional right to remain silent in imposing punishment? 

2. Did the District Court improperly bolster the credibility of 

the alleged victim, J.C., and deny Kelly his right to a fair trial 

by examining the witness to assess competency, in the presence of 

the jury, when there was no issue as to competency? 

FACTUAL BACKGROUND 

During the early morning hours of July 29, 1992, two women 

Roxanne C., and Victoria Friday, asked Kelly to drive them home 

from a house party. Kelly drove the women home and left a short 

time later. Around 8:00 a.m., Roxanne's four children who had 

2 
stayed overnight at a babysitters, returned home. While they were 

watching T.V. , there was a knock on the door, and Kelly entered the 

house. He went into Roxanne's room for a short time, and then went 

into Victoria's bedroom. Victoria told Kelly to leave. He went to 

the room where the children were watching T.V. and told J.C., who 

was then eleven years old, that her mother wanted him to take her 

to the store to buy diapers and formula. J.C. went to ask her 

mother if it was alright for her to go to the store, but she could 

not awaken her. J.C. then went with Kelly in his car, however he 

did not take her to the store but rather took her to various 

locations, including the apartment where Louis Hollingshed lived, 

and subjected her to sexual acts. 

While in Hollingshed's apartment, J.C. ran into the kitchen 

grabbed a knife and stabbed Kelly twice in the leg. Kelly 

struggled to get the knife back from J.C. and in doing so J.C.Is 

finger was cut. Kelly demanded that J. C. clean up the blood on the 

floor, so J.C. attempted to do so with a towel. A short time later 

they left the apartment. While they were getting into Kelly's car 

J.C. managed to run to a nearby business where Angela Schneider was 

working. J.C. was shaking and screaming "he is going to kill me." 

Ms. Schneider took J.C. outside and asked her where the man was, 

and J.C. pointed to a black man in a blue station wagon. After 

leading the police on a high speed chase, Kelly was arrested and 

taken into custody. 

The Yellowstone CountyAttorneyls Office subsequently filed an 

Information charging Kelly with one count of aggravated kidnapping, 
a felony, and four counts of sexual intercourse without consent, 

each charge a felony. The State moved the court to dismiss two of 

the charges of sexual intercourse without consent, and the court 

granted the motion. A jury trial was held on January 25, 26, and 

27, 1993, and the jury returned a verdict finding Kelly guilty of 

the remaining three charges. 

J.C. testified at the trial. Kelly did not attack the 

credibility or competency of J.C. Although defense counsel and the 

State did ask the jury panel, during voir dire, questions about 

whether children in general had the ability to tell the truth, the 

questioning did not specifically address J.C.'s competency or 

credibility. The State offered and later withdrew a jury 

instruction regarding competency of a child witness and defense 

counsel felt that an instruction was unnecessary. Notwithstanding, 

after J.C. testified, the District Court questioned her concerning 

her understanding of the oath and the fact that she raised her left 

hand as opposed to her right hand in taking the oath. The court 

asked her if she had told the truth to which she responded "yes." 

This was all accomplished in the presence of the jury. At that 

time defense counsel did not object, however, two days later 

defense counsel moved for a mistrial on the ground that the 

District Court had bolstered J.C.'s credibility by questioning her 

in the presence of the jury regarding her competency and 

credibility. The court denied the motion. 

Kelly chose not to testify at trial. The District Court 

sentenced Kelly to imprisonment at the Montana State Prison for one 
hundred years on the aggravated kidnapping charge and to terms of 

40 years on each of the two charges of sexual intercourse without 

consent, to run consecutively to each other and concurrently with 

the term of imprisonment on the aggravated kidnapping charge. 

Included among its reasons for imposing the sentence the District 

Court stated, "The Court considered all the facts presented during 

trial and that the defendant did not testify." 

I - IMPROPER SENTENCING 

Kelly contends that the District Court violated his 

constitutional rights under the Fifth Amendment to the United 

States Constitution and Article 11, section 25 of the Montana 

Constitution against self-incrimination when it based the sentence 

in part on his failure to testify. 

This Court has previously held that to punish a person for 

exercising a constitutional right is a basic due process violation. 

State v. Baldwin (1981), 192 Mont. 521, 525, 629 P.2d 222, 225. It 

is fundamental that a defendant retains important Fifth Amendment 

rights after the jury reaches a verdict. U.S. v. Rodriguez (5th 

Cir. 1974) , 498 F. 2d 302, 312. When a defendant invokes his or her 

Fifth Amendment privilege against self-incrimination, a sentencing 

court may not use his or her failure to waive that right as 

negative evidence to penalize him or her in deciding upon the 

appropriate sentence. U.S. v. Heubel (3rd Cir. l989), 864 F.2C 

1104, 1111. 

This Court has recognized the importance of the constitutional 

right not to be a witness against oneself. State v. Imlay (19911, 
249 Mont. 82, 813 P.2d 979. In Imlav, the defendant was convicted 

of felony sexual assault. &&Jay, 813 P.2d at 980. The defendant 

received a suspended sentence which contained a special condition 

that he complete a sexual treatment program. u, 813 P.2d at 

980. Because he would not admit that he committed the offense it 

was determined he was not complying with the treatment and his. 

suspended sentence was revoked. u, 813 P.2d at 982. This 

Court vacated the sentence and remanded because we concluded that 

the defendant could not be punished for asserting his 

constitutional right against self-incrimination. Imlav, 813 P.2d 

at 985. 

In the instant case it is clear that the District Court relied 

in part on Kelly's failure to testify in imposing the sentence, as 

it included this fact in the sentencing order. In doing so, the 

District Court violated Kelly's constitutional right to remaii-. 

silent. While the State argues that there is no evidence that 

Kelly received a harsher sentence than he might have otherwise 

received had he testified, and that there were good reasons why he 

received a harsh sentence, it is not the defendant's burden to show 

that his sentence might have been different if he had testified. 

See, State v. Holder (Ariz.App. 1987), 745 P.2d 138, 141 (where a 

sentence was reversed because the accused arguably received a 

sentence greater than he would have had he admitted guilt). The 

sentencing court simply may not consider the defendant's exercise 

of his constitutional right to remain silent in the face of his 

accuser, much less penalize him for doing so. We therefore remand 
for resentencing without consideration of Kelly's failure to 

testify. 

I1 - QUESTIONING OF VICTIM 

The second issue Kelly raises concerns the District Court's 

questioning of J.C. during trial. Kelly contends the District 

Court committed reversible error when it questioned J.C. in front 

of the jury. After J.C. testified, and without first excusing the 

jury, the District Court questioned J.C. as follows: 

THE COURT: [J.C.] how old did you say you were? 

THE WITNESS: At that time or -- 

THE COURT: Yeah, or your birthday; I don't care. 

THE WITNESS: I was eleven, and my birthday is August 29, 

1980. 

THE COURT: I notice when you were sworn in you raised you7 

left hand. Did you know you did that? 

THE WITNESS: Yeah. 

THE COURT: ~uthat isn't too important. The important thing 

is what the lady asked you is essentially did you swear. You 

swore to tell the truth? 

THE WITNESS: Yes. 

THE COURT: And you know the difference between the truth and 

a lie; don't you? 

THE WITNESS: Yes. 

THE COURT: Have you told the truth? 

THE WITNESS: Yes. 

THE COURT: So you do recognize that when you agreed to tell 

the truth that was required? 

THE WITNESS: Yes. 

THE COURT: Okay. Okay. I think that they are through now; is 

that correct? 
(Whereupon the witness was excused.) 

Kelly maintains that because defense counsel did not challenge 

J.C.'s competency or attack her credibility, the trial judge should 

not have taken it upon himself to question J.C. regarding her 

competency. He alleges that the trial court's questioning of J.C. 

amounted to impermissible comment on her credibility as a witness, 

and therefore we should remand the case for a new trial. 

There is no age requirement before a person is considerea 

competent to testify. State v. Phelps (1985), 215 Mont. 217, 226, 

696 P.2d 447, 453. Rule 601, M.R.Evid., defines witness competency 

and that rule provides: 

(a) General rule competency. Every person is competent 

to be a witness except as otherwise provided in these 

rules. 

(b) Disqualification of witnesses. A person is 

disqualified to be a witness if the court finds that (1) 

the witness is incapable of expression concerning the 

matter so as to be understood by the judge and jury 

either directly or through interpretation by one who can 

understand the witness or (2) the witness is incapable of 

understanding the duty of a witness to tell the truth. 

Because a witness is presumed to be competent under Rule 

601(a), the District Court had no obligation to question J.C. 

concerning her ability to tell the truth, unless counsel raised the 

issue of competency or unless the court had some concerns in that 

regard. If the court found it necessary to interrogate J.C., it 

should have done so outside the jury's presence. See, State v. 

Howie (l987), 228 Mont. 497, 503, 744 P.2d 156, 159. State v. 

Phelps (1985), 215 Mont. 217, 225, 696 P.2d 447, 452. 

We conclude that the District Court did err in questioning 

J. C. in front of the jury. If the court, or counsel, was concerne?, 

8 
about J.Crs competency, then the court should have established her 

competency before she testified and outside the presence of the 

jury. We adopt this procedure for future cases. 

However, in the instant case we will not reverse Kelly's 

conviction for two reasons. First, Kelly failed to make a timely 

objection at the first available opportunity, after the court's 

voir dire of J.C. Section 46-20-104(2), MCA, provides that failure 

to make a timely objection during trial constitutes a waiver of the 

objection. The motion for a mistrial did not come until settlement 

of instructions, two days after J.C. testified. Therefore we 

conclude that Kelly failed to object at the first available 

opportunity, thereby waiving his objection. 

Secondly, we believe the error was harmless. In State v. 

Smith (1984), 208 Mont. 66, 676 P.2d 185, the trial court also 

questioned a child witness concerning her competency as a witness 

in front of the jury. In that case we noted that although it was 

not proper to question the witness in the jury's presence, the 

defendant was not prejudiced by the questioning in light of the 

overwhelming corroborating evidence. Smith, 676 P.2d at 188. 

In the instant case, we find that there was substantial direct 

and corroborative evidence of Kelly's guilt. For example, Louis 

Hollingshed testified that Kelly visited his apartment with a young 

girl, that he saw blood on the kitchen floor, and that Kelly had a 

cut on his thigh. Hollingshed asked Kelly what happened and Kelly 

replied, "The bitch cut me." Hollingshed also testified that the 

young girl was frantic, crying, and emotionally upset. 
Angela Schneider testified that J.C. ran to her workplace 

shaking and screaming "he is going to kill me," and pointed to a 

black man in a blue car. The emergency room doctor who examined 

J.C. shortly after the incident testified that she had lacerations 

on her fingers, and other injuries consistent with someone who had 

been sexually and physically assaulted. The State Crime Lab found 

that a blood stain found on J.Cts shirt was consistent with Kelly's 

blood, and blood stains on the towel which was taken from Louis 

Hollingshed's apartment were consistent with both Kelly's and 

J.C.'s blood. 

Based on this evidence and other evidence introduced at trial, 

we conclude that the District Court's questioning of J.C. was 

harmless error, therefore Kelly's conviction is upheld. 

REVERSED AND REMANDED FOR RESENTENCIN 

We Concur: 
June 21, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

William F. Hooks, Esq. 

Appellate Defender 

P. 0. Box 200145, Capitol Station 

Helena, MT 59620-0145 

Joseph P. Mazurek, Attorney General 

, Assistant 

Justice Bldg. 

Helena, MT 59620 

Dennis Paxinos, County Attorney 

Daniel L. Schwarz, Deputy 

P.O. Box 35025 

Billings, MT 59107 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA