No. 81-412 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

STATE OF MONTANA, Plaintiff and Respondent,



### -vsMICHAEL ALAN DICKENS, Defendant and Appellant.

Appeal from: DistrictCourt of the Eighth Judicial District, Inand forthe County of Cascade, The Honorable John M. McCarvel, Judge presiding.

Counsel 

### of Record: For Appellant: Michael S. Smartt, Great Falls, Montana

For Respondent: Bon. Mike Greely, Attorney General, Helena, Montana J. Fred Bourdeau, County Attorney, Great Falls, Montana

Submitted on Briefs: March 5, 1982 Decided: June 24, 1982

Filed: 

## JUN2

# 41982Mr. 

### Justice Gene B. 

### Daly delivered 

### the Opinion 

### ot the Court. Michael Alan Dickens (hereinafter referred 

### to as appellant) was charged before the District 

### Court of the Eighth Judicial District 

### of the Stateof Montana, in and for the County of Cascade, with the 

### crime of aggravated kidnapping, a felony, and of sexual intercourse without consent, a felony. A 

### jury trialwas held on Aprll 28, 

### 1981, and after four days of trial, the jury returned guilty verdicts on both counts. On June 3, 

### 1981, the court sentenced appellant to twenty years for the crime of sexual intercourse without consent; for the use of a dangerous weapon, he was given an additional (consecutive) ten years; and, for the 

### crime of aggravated kidnapping, he was sentenced to thirty years (to be served concurrently) of con£inement in the Montana State Prison. Appellant was found to be a nondangerous offender forparole eligibilitypurposes. Appellant's motlon for a new trial was denied, and thls appeal followed. On New Year's Eve, 1980, the victim, according toher testimony, was abducted atknife point from a city street in Great Falls, Montana, and forced into appellant's vehicle. She was then taken 

### to an area near Giant Springs where the appellant forced her, atknife point, to engage In various sexual acts including sexual intercourse. After the acts had been completed, he pulled her from the vehicle and 

### gave her a choice of either being knifed 

### or thrown over the nearby cllffs into the river. A 

### struggle ensued, and the vlctimmanaged toescape the appellantby kicking him in the groin. 'Though naked except for her socks, she managed tomake her way to Malmstroin Air Force Base about two 

### miles away. Soon thereafter, she was rescued by base security personnel. The sheriff's department was notified, and the vlctim

was taken to a local hospital for treatment. At the hospital she was examined by 

### a Dr. 

### Miller, who discovered, and later testified, that there was motil semen in her vagina and an abrasion on the labial area of her vaginal opening. Within several days the victim had identified the appellant from a photograph and atan informal lineup identlflcatlon. In contrast, the appellant testifled that he picked up the victim who was hitchhiking. 

### He testified that she made advances towards him and suggested they go to Giant Springs 

### "to bring in the 

### New Year." Appellant testified that theywent toGlant Springs, parked, got in the backseat of his car and had a sexual encounter, including sexual intercourse. Thereafter, according to appellant's 

### testimony, the victim became upset, got out of the car and ran off. Appellant testified that her conduct angered him and that afterwaiting a short time he drove off

# . The State presented numerous witnesses who testified about certain circumstances surrounding the incident. The 

### most damaging testimony to appellant's defense was the testimony of his roommate and the medical testimony of Dr. Mlller. The appellant's roommate testified thaton the date following the attack the appellant stated he had abducted a

woman the night before, had taken her to Giant Springs and had threatened to rape her or throw her over the cliffs.Dr. Miller, a specialist in obstetrics and gynecology, who also had done approximately fift-y examinations of rape victims over a ten-year period, was allowed 

### to testify that from his clinicalobservations, thevictimhad been raped. Appellant raises numerous issues of error on appeal and these can be summarized as follows: 1. Was the appellant. denied his right to a fair trial? 2. Was there sufficient jury misconduct present 

### to warrant. a reversal? 3. Was the trial court committing reversible 

### error when it allowed the physician tovoice afi opinion ast.o the ultimate issue? 4. Was the appellant denied a fairtrialbecause the State refused 

### to stipulat-e? Appellant. contends thathe was denied his right to a fair trial because the trial court made an improper comment

on the evidence; impaired the cross-examination of a key prosecution witness; displayed a nonjudicial attitude toward defense counsel; and, improperly rest-ricted the length of closing argument. These contentions are not supported by therecord orby the law. The alleged improper comments by the trial court occurred when, during direct examinat-ionof one of appellant's witnesses, the court stated that, "all this line of testimony is irrelevant," and, 

### "[i] t.'s about time" when the prosecution objected. First., there 

### is no indication in the record of the court ever stating, 

### "[i] 

### t's about 

### time." Counsel refers

### to a page in the transcript where the remark is alleged to have occurred, but it is counsel's own remark.Second, when the court stat-ed, "all this line of t.estimony is irrelevant," it was ruling on a line of test-imony that



### was indeed irrelevant. Appellant's counsel was asking a witness, thathad had sexual relationswith appellant inthe past, whether other women became upset with appellant. because he failed t.o carryon relationshipswith them. This

was clearly an improper line of questioning. Rule 402, Mont

# . R.Evid. ;Rule 602, Mont.R.Evid. Further, the "comment"



### was harmless error and does not provide sufficient grounds for a reversal. Stat-ev. Bier (1979), 

## -Mont

# . , 591 

### - P.2d 1115, 36 St.Kep. 466; Statev. LaMere (1980), -Mont.



## , 621 P.2d 462, 37 St.Rep. 1936. 

### - Appellant contends that the court impaired the crossexamination of a key prosecution witness by interrupt.ing counsel on several occasions. A review of the record reveals that the "int-erruptions"were merely act-ionsby the trial court 

### to keep t-he 

### t-rialrunning smoot.hly and to prevent counsel from engaging in frequent. sojourns into side issues. The court has a duty to conduct t.he trial in a speedy and fairmanner and has a great amount of discret-ion insodoing. Statev. LaMere, supra; Statev. Pippi (1921), 59 Mont.. 116, 123, 195P. 556, 558-559. It 

### is argued by appellant that the 

### trial court displayed 

### a nonjudicial attitude toward defense counsel. This attitude is alleged t.o have displayed itself during several instances, beginning with voir dire and ending with the trial court's ordering defense counsel to return to the defense table during examination of the appellant. Again, the record does not support.the contentions. It. 

### was stated in State v. Cassil (1924), 70 Mont."It 

### will not serve any useful purpose to enter into 

### a particular discussion of these alleged errors. In view of the conclusion reached with respect thereto, of the correctness of which 

### we have no doubt whatever, 

### we shall content ourselves with saying that while we do not approve of any of the comments orremarksmade by thejudge, which are complained of, 

### we do not find that any of them, 

### or all of them considered together, worked prejudice toany substantialrightsof the defendants, or probably could have done SO. " Here, 

### as in Cassil, there exists no basis for concluding that the right of appellant to 

### a fair trial was in any way denied or impeded by the action of the t-rial court. See also: St.at.e v. McKenzie (1980), Mont

# . , 608 P.2d 428, 458, 37 St.Rep. 325; Stat-ev. Metcalf (1969), 153Mont.. 369, 376-377, 457 P.2d 453; Statev. Pokini (Haw. 1974), 526

Appellant also contends that his right to a fair trial was affected when the court limited the 

### time for his closing argument to one-half hour. While it 

### is true that the trial court infonned defense counsel that he would only allowthirtyminutes toconclude hisclosing argument, it 

### is also true that defense counsel had already been t-alking for

one hour and seven minutes. The trial court. did not abuse its discretion by limiting counsel to a closing argument that was one hour and thirty-seven minutes long. State v. LaMere

## , supra. The second major issue raised by the appellant

concerns certain allegations of jury misconduct. This alieged misconduct occurred in two forms: first, there was

a possibilit-ythat severaljurorsmay have briefly conversed with prosecution wit-nesses; second, thebailiff's statementsto the jurors. A review of the record and applicable case law reveals that no reversible error took place. The first instance of alleged misconduct took place, according to t-he appellant., during t.he t.rial when several members of the jury 

### were seen, by several of appellant's witnesses, facing some of the prosecutior,'~witnesses and moving their mouths. It 

### is not clear from the record whether any conversation was act-uallyheard, but the appellant.'~ 

### witnesses did testify during the motion for a new trial that it "appeared" some communication took place. If there had indeed been communications of an improper nature between several of the jurors and 

### some of t.he prosecution's witnesses during the t.rial, defense counsel had an obligation atthat 

### time to inform the court of the matter. Disciplinary Rule 7-108(F), Montana Code of Professional Responsibility. Further, thistype of communication, a possibility atbest, 

### is not sufficient reversible



### error. In Turner v. Louisiana (1965), 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424, a case cited as controlling on this issue by appellant, the United States Supreme Court held that a verdict can be reversed if it can be shown that communications of a dubious nat-ure takes place between prosecut-ionwitnesses and jurors. A review of the facts in Turner reveals that what consisted of reversible error there 

### is a far cryfrom what. transpired in the present case. In Turfier, the t.wo key prosecution witnesses were deputy sheriffs who 

### were also in charge of the jurors. The Court noted:

# ".

. 

# . We deal here not with a brief encounter, but with a continuous and intimate association throughout a three-day trial--an association which gave these witnesses anopportunity, asSimmons (one of thedeput-ies) put. it, torenew old friendships and make new acquaintancesamong themembers of thejury

# ." 85 St.Ct.. at550. There 

### is a distinction drawn by t.he United Stat-es Supreme Court between a "brief encounter" and an "intimate association" and that distinction 

### is applicable here. At best, the record reflects some innocuous t-ype of conversation. Appellant did not inform the court when the instances took place and did 

### not complain until the verdict was entered; nor was there any at~tempt tosubmit affidavitsfrom jurors. There was, quite simply, not. enough evidence presented by appellant 

### towarrant a new t-rial. Charlie v. Foos (1972), 160Mont. 403, 503 P.2d 538. The second occurrence of alleged misconduct transpired when the bailiff informed thejury that he was having

some problems finding t-hem a place to stayovernight. However, t-he record reveals that the bailiff informed the jurors shortly thereafter that he had procured them rooms. Also, the record shows that the jurors informed the bailiff that despite the hour, it was after 1:00 a.m., they did not want to break but instead wanted 

### to continue deliberating. It cannot. be seen where any type of prejudice resulted to the appellant from thebailiff's conduct. It 

### is further contended by the appellant that the trial court committed reversible error when it allowed the physician to testify as to the ultimate issue. The testimony in questionwas as follows: "(2. [Prosecution] Did you perform any type of clinical impression of this womac? A. [Physician] My overall impression was that she was raped." Appellant argues that thistestimony 

### is inadmissible becauseit

### goes 

### to the ultimate issueof whether ornot theprosecutrixwas raped and is, therefore, in violationof Rules 702, 704 and 705, Mont.R.Evid. ThisCourt reviewed a similar issue ina recent 

### case. In Statev. Howard (1981), Mont

# . , 637 P.2d 15, 38 

### St.Rep. 1980, 

### we held: "Under Rule 704 

### the testimonymust be 'other

### wise admissible.

## ' The admissibilityof expert testimony 

### is governed by Rule 702, Montana Rulesof Evidence: 

### "'If scientific, technical, or other specialized knowledge 

### will 

### assist the 

### trier of fact

### to understand the evidence or to 

### determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, oreducationmay testifythereto in the form of an opinion orotherwise.' "According to this rule, Dr. Elliott 

### was clearlyqualified 

### to testify

### astothe nature and extentof thevictim's injuries. Whether he could t-henextrapolate from thisdata and give an opinion is determined by whether the opinion would assist the 

### t-rier of fact. Stated anotherway, the 

### test 

### is:

I1 I

# .

# .. whether the subject. 

### is one of such common knowledge thatmen of ordinary education could reach 

### a conclusion 

### as intelligently as the witness, 

### or whether thematter is 

### sufficientlybeyond common experience that. the opinion of an expert would 

### assist the 

### trier of fact.' State v. Campbell (1965), 146Mont. 251, 258, 405 P.2d 978, 983. "Dr. Elliott

### inferred from the nature of the injuries that the person who inflicted them did so with an intent. to murder. We find that. under the circumstances of this 

### case, the jury was 

### as qualified as the doctor to draw an inference from the circumstantial evidence as to intent, and therefore the doctor's opinion on intent 

### was inadmissible under Rule 702, 

### Mont.ana Rules of Evidence. "We further find that, for a number of reasons, the error was harmless under both the Montana and the federal constitutional tests. 

### Montana statutes provide that no cause of action shall be reversed by reason of any errorcommitted by the trial 

### court unless the record shows that the error

### was prejudicial, section 46-20-701, MCA; 

### and that any error

### which does not affect substantial rights shallbe disregarded, section46-20-702, MCA. 

### The federal constitutional 

### test for harmless error 

### is whether there is 

### a reasonable possibility that the evidence complained of might have contributed to the conviction, Fahy v. Connecticut (1963), 375 U.S. 

### 85, 84 S.Ct. 229, 11 

### L.Ed.2d 171; 

### or whether the reviewing court candeclare a belief that the error was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 

### 18, 87 S.Ct. 824, 17 L.Ed.2d 705." 637 P.2d at 

### 17-18. The circumstances in this case 

### are indeed quite 

### similar 

### to those presented in Howard, with one important difference. The physician in Howard was asked to give an opinion 

### as to the intent. of the defendant. Here, 

### the physicianwas merely asked togivehis "clinical impression" of the victim based upon his experience 

### as a specialist in obstet-rics, gynecology and as an expert that has done approximately fifty examinations of rape victims. There 

### is a definite difference in the content of t.he testimony. In this case, intent 

### was not part. of the question, 

### so the physiciancould properly testifyas 

### to his clinical impression and give an opinion based upon his varied experie~ce and f

### irst-handobservation. Further, 

### as inHoward, the testimony



### was not prejudicial and 

### was therefore not sufficient. to constitutereversibleerror. The final content-ionof the appellant 

### is that he 

### was denied a fair trial because the prosecution refused to 

### stipulate, and, therefore, there 

### was an improper admission of prejudicial evidence. He contends that because he admitted t.o numerous facts the prosecution was barred from presenting any evidence concerning those admitt.ed facts. The prosecution was under no duty to stipulate, and



### no errorresulted from its 

### refusal todo so. 

### Statev. 

### Adler(1976), 16 Wash.App. 459, 558 P.2d 817, 821. In State v. Wilson (1974), 215 Kan. 28, 523 P.2d 337, the Kansas Supreme Court stated: 

# ".

.. it is an established rule of law that an admission by 

### a defendant does not prevent the state from presenting separate and independent proof of the fact admitted. (Bizup v. People, 150Colo. 214, 371P.2d 786, 

### cert. den. 371 U.S. 873, 83 S.Ct. 114, 9 L.Ed.2d 112; and Parr 

### v. United States [5th Cir. 19581, 255 F.2d 86, cert. den. 358 U.S. 824, 79 S.Ct. 40, 3 L.Ed.2d 64.) "The prevailing rule in thisregard 

### is stated inWharton's Criminal Evidence [12th Ed. 1972 Cumulative Supp.], Confessions and Admissions, $ 399: "'The making of an admission by thedefendant does not bar the prosecution from proving the fact independently thereof as though no admission had been made, particularly since facts when voluntarily admitted often lose rauch of their probative force in the eyes of thejury.' (p. 63.) "To the same effect the rule is stated in 31A C.J.S. Evidence 

### 5 299: 

### "'A party is not required to accept 

### a judicial admission of his adversary, but may insiston proving the fact.' (p. 766.) "In the recent criminal case of Arrington v. State (Fla. 1970), 233 So.2d 634, the Supreme Court of Florida pointed out that an offer to stipulate remains merely an offer unless accepted by the prosecution. The Florida court declared 

### itsposition on the subjectby adopting language quoted from The People v. Speck, 41 I11.2d 177, 242 N.E.2d 288, asfollows: "'It has never been held that the state 

### is barred from proving a fact because the defendant offers to admit it, but, on the contrary, the rule 

### is that when a trial is upon a plea of not guilty, the state is permitted to go ahead and introduce its full proof of the crime charged in the indictment.' (233So.2d pp. 636, 637.) "See, also, The People v. Sckieck, 356 Ill. 56, 198 N.E. 108, 91 A.L.R. 1472, and 73 Am.Jur.2dr Stipulations, 

### S 18, p. 557." 523 P.2d at341.Also, the California Supreme Court held in People v.

"Second, there 

### is a strong policy against depriving the state's cause of its persuasiveness and forcefulness by forcing the prosecutor to accept stipulations that soften the impact of the evidence in 

### its entirety, 'Parties, as a general rule, are entitled to prove the essential facts--to present to the jury a picture of the events relied on.' (53 Am.Jur., 

### S 105.) In People v. Pollock, 25 Cal.App.2d 448, 77 P.2d 885, the court held that the districtattorney in

### a rzpe case was not obligated to accept the defendant's offer to stipulate that therehad been intercourse. 'Except as ordained by law, the district attorney, in connection with the performance of an official act, 

### is not required to accept the judgment of a stranger to the office.' (Id. atp. 444, 77 P.2d atp. 887.)" 457 P.2d at877. We findno grounds for reversal in any of appellant's contentions; therefore, thejudgment 

### is affirmed,

We concur:

### Mr. JusticeFrank B. 

### Morrison,Jr., concurring: I

### concur in the resultbut not in everything that is said.Themajority opinion treats the issueof whether expert testimony on "rape" wasproper. Reliance isplaced upon Statev. Howard (1981), Mont. 

## , 637

### P.2d 15, 38 St.Rep. 1980. Inmy opinion Howard is clearly distinguishable. The court in Howard found itwas error for aphysician to give the following testimony: "A. 

### Well, yeah,Ihave an opinion. 

### I think that somebody tried tomurder her. You know, I 

### justcan't believe thatyou can sustain that much traumawith any other intent." This testimonywas found to be harmless error in light of the factthat: (1) The jury did not rely on the doctor's opinion because itreturned averdict findingdefendantguilty of aggravated assaultand kidnapping rather than guilty of attempted deliberatehomicide. (2) 

### The evidencewas overwhelming that the defendant purposefully orknowingly inflcited bodily injury on the victimwith aweapon. In the case nowbefore the Court,the issuewaswhether defendant's sexual intercourse with the victimwas had with consent. The jury resolved that issue contrary to defendant's position. The testimonyhere inquestionwas as follows: "Q. 

### [Prosecution] Didyouperform any type of clinical impression of thiswoman? "A. 

### [Physician]My overall impressionwas that she was raped." The answerhere given could have influenced the jury's verdict since the answer is consistentwith the guilty findingof the jury. Therefore,this case isdistinguishable

### from Howard where the expertwitness testified that the assailant intended tomurder the victim but the jury aquitted

on that charge. Under the state of the record before us Iwould affirm but not relyuponHoward. The only objection made to the answer here givenwas that the testimonywent to the ultimate issue of fact. Under Rule 704,

### Montana Rules of Evidence, testimony in the formof an opinion is not objectionable because itembraces anultimate issue. The answer herewas notresponsive to the question asked. Furthermore,the answer appears to be vague. If proper foundation is Paid,: aphysicianmay express an opinionabout whether forcewas used to accomplishpenetration. Thephysician couldnotgive an opinion about the mental stateof the defendanthaving never conducted an examination of the defendant,nor having any other adequate foundation to draw such a conclusion. Neither could thephysicianmake legalconclusions. Thephysician's use of theword "raped" is somewhatunclear in thathe may only have been giving a medicaldiagnosisor,on the other hand,hemay have been drawing legal conclusionsand conjecturingabout the state of defendant'smind. The former ispermissible. The latter is not. Theobjectionmade was not sustainable. The answer given isunresponsiveandvague. However, I

### do not feel that the answer is sufficientlyprejudicial to require a new trial. Therefore, I concur in affirming theverdict.