No. 81-412 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsMICHAEL ALAN DICKENS, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the 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: JUN 2 4 1982 
Mr. 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 State of 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 trial was 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 

for parole eligibility purposes. 

Appellant's motlon for a new trial was denied, and 

thls appeal followed. 

On New Year's Eve, 1980, the victim, according to her 

testimony, was abducted at knife 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, at knife 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 

vlctim managed to escape the appellant by kicking him in the 

groin. 'Though naked except for her socks, she managed to 
make 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 at an 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 they went to Glant 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 test if ied that her conduct angered him and 

that af ter waiting a short time he drove off . The State presented numerous witnesses who test if ied 

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 that on 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 f ift-y examinations of rape 

victims over a ten-year period, was allowed to testify that 

from his clinical observations, the victim had 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 to voice afi opinion as t.o the 

ultimate issue? 

4. Was the appellant denied a fair trial because the 

State ref used to stipulat-e? 

Appellant. contends that he 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 nonj udicial attitude toward 

defense counsel; and, improperly rest-ricted the length of 

closing argument. These contentions are not supported by 

the record or by the law. 

The alleged improper comments by the trial court 

occurred when, during direct examinat-ion of 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, that had had sexual relations with appellant in the 

past, whether other women became upset with appellant. 

because he failed t.o carry on relationships with 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-e v. Bier (1979), - Mont . - , 591 

P.2d 1115, 36 St.Kep. 466; State v. 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-ions by the 

trial court to keep t-he t-rial running 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 fair manner and has a great amount of discret-ion 

in so doing. State v. LaMere, supra; State v. Pippi (1921), 

59 Mont.. 116, 123, 195 P. 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 or remarks made by the judge, which are 

complained of, we do not find that any of 

them, or all of them considered together, 

worked prejudice to any substantial rights of 

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-e v. Metcalf (1969), 153 Mont.. 

369, 376-377, 457 P.2d 453; State v. 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 

allow thirty minutes to conclude his closing 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 j ury misconduct. This 

alieged misconduct occurred in two forms: first, there was 

a possibilit-y that several j urors may have briefly conversed 

with prosecution wit-nesses; second, the bailiff's statements 
to 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-ually heard, 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 at that time to inform the court 

of the matter. Disciplinary Rule 7-108(F), Montana Code of 

Professional Responsibility. Further, this type of communication, a possibility at best, 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-ion witnesses and jurors. A review of the facts in 

Turner reveals that what consisted of reversible error 

there is a far cry from 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 an 
opportunity, as Simmons (one of the deput-ies) 

put. it, to renew old friendships and make new 

acquaintances among the members of the jury . " 

85 St.Ct.. at 550. 

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 to submit affidavits from 

jurors. There was, quite simply, not. enough evidence presented by appellant to warrant a new t-rial. Charlie v. Foos 

(1972), 160 Mont. 403, 503 P.2d 538. 

The second occurrence of alleged misconduct transpired when the bailiff informed the jury that he was having 

some problems finding t-hem a place to stay overnight. 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 the bailiff'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 question was 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 this testimony is inadmissible because 
it goes to the ultimate issue of whether or not the prosecutrix was raped and is, therefore, in violation of Rules 702, 

704 and 705, Mont.R.Evid. 

This Court reviewed a similar issue in a recent case. 

In State v. Howard (1981), Mont . , 637 P.2d 15, 38 

St.Rep. 1980, we held: 

"Under Rule 704 the testimony must be 'otherwise admissible. ' The admissibility of expert 

testimony is governed by Rule 702, Montana 

Rules of 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, or education may testify thereto in 

the form of an opinion or otherwise.' 

"According to this rule, Dr. Elliott was 

clearly qualified to testify as to the nature 

and extent of the victim's injuries. Whether 

he could t-hen extrapolate from this data and 

give an opinion is determined by whether the 

opinion would assist the t-rier of fact. 

Stated another way, the test is: 

I1 I . . . whether the subject. is one of such 

common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness, or whether the matter 

is sufficiently beyond common experience that. 

the opinion of an expert would assist the 

trier of fact.' State v. Campbell (1965), 

146 Mont. 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 

error committed 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 

shall be disregarded, section 46-20-702, 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 can declare 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 

physician was merely asked to give his "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 physician could properly testify as to his clinical impression 

and give an opinion based upon his varied experie~ce and 

f irst-hand observation. Further, as in Howard, the testimony 

was not prejudicial and was therefore not sufficient. to 

constitute reversible error. 

The final content-ion of 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 admi tt.ed facts. 

The prosecution was under no duty to stipulate, and 

no error resulted from its refusal to do so. State v. 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, 150 Colo. 214, 371 P.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 this regard is stated 

in Wharton's Criminal Evidence [12th Ed. 1972 

Cumulative Supp.], Confessions and Admissions, $ 399: 

"'The making of an admission by the defendant 

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 

the jury.' (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 

insist on 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 its position on the subject by 

adopting language quoted from The People v. 

Speck, 41 I11.2d 177, 242 N.E.2d 288, as follows : 

"'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.' (233 So.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 at 341. 
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 district attorney in a rzpe case was 

not obligated to accept the defendant's offer 

to stipulate that there had 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. at p. 444, 77 P.2d at p. 887.)" 457 P.2d 

at 877. 

We find no grounds for reversal in any of appellant's 

contentions; therefore, the judgment is affirmed, 

We concur : 
Mr. Justice Frank B. Morrison, Jr., concurring: 

I concur in the result but not in everything that is 

said. 

The majority opinion treats the issue of whether expert 

testimony on "rape" was proper. Reliance is placed upon 

State v. Howard (1981), Mont. , 637 P.2d 15, 38 

St.Rep. 1980. In my opinion Howard is clearly distinguishable. 

The court in Howard found it was error for a physician 

to give the following testimony: 

"A. Well, yeah, I have an opinion. I think 

that somebody tried to murder her. You know, 

I just can't believe that you can sustain that 

much trauma with any other intent." 

This testimony was found to be harmless error in light 

of the fact that: 

(1) The jury did not rely on the doctor's opinion 

because it returned a verdict finding defendant guilty of 

aggravated assault and kidnapping rather than guilty of 

attempted deliberate homicide. 

(2) The evidence was overwhelming that the defendant 

purposefully or knowingly inflcited bodily injury on the 

victim with a weapon. 

In the case now before the Court, the issue was whether 

defendant's sexual intercourse with the victim was had with 

consent. The jury resolved that issue contrary to defendant's 

position. The testimony here in question was as follows: 

"Q. [Prosecution] Did you perform any type of 

clinical impression of this woman? 

"A. [Physician] My overall impression was 

that she was raped." 

The answer here given could have influenced the jury's 

verdict since the answer is consistent with the guilty 

finding of the jury. Therefore, this case is distinguishable 
from Howard where the expert witness testified that the 

assailant intended to murder the victim but the jury aquitted 

on that charge. 

Under the state of the record before us I would affirm 

but not rely upon Howard. The only objection made to the 

answer here given was that the testimony went to the ultimate 

issue of fact. Under Rule 704, Montana Rules of Evidence, 

testimony in the form of an opinion is not objectionable 

because it embraces an ultimate issue. 

The answer here was not responsive to the question 

asked. Furthermore, the answer appears to be vague. If 

proper foundation is Paid,: a physician may express an 

opinion about whether force was used to accomplish penetration. 

The physician could not give an opinion about the mental 

state of the defendant having never conducted an examination 

of the defendant, nor having any other adequate foundation 

to draw such a conclusion. Neither could the physician make 

legal conclusions. The physician's use of the word "raped" 

is somewhat unclear in that he may only have been giving a 

medical diagnosis or, on the other hand, he may have been 

drawing legal conclusions and conjecturing about the state 

of defendant's mind. The former is permissible. The latter 

is not. 

The objection made was not sustainable. The answer 

given is unresponsive and vague. However, I do not feel 

that the answer is sufficiently prejudicial to require a new 

trial. Therefore, I concur in affirming the verdict.