No. 79-55 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

STATE OF MONTANA, 

Plaintiff and Respondent, 

TERRANCE ANDREW MACKIE, 

a/k/a JIM MASON, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula. 

Honorable James B. Wheelis, Judge presiding. 

Counsel of Record: 

For Appellant: 

Murray and Holt, Missoula, Montana 

Margaret Borg argued, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney, General, Helena~, Montana 

Chris Tweeten argued, Assistant Attorney General, 

Helena, Montana 

Robert Deschamps 111, County Attorney, Missoula, 

Montana 

Karen S. Townsend, argued, Deputy County Attorney, 

Missoula, Montana 

Submitted: November 14, 1980 

Decided: 2 1 1981 
The Honorable Gordon R. Bennett, district judge, sitting for 

Mr. Justice John C. Sheehy, delivered the Opinion of the 

Court. 

After trial by jury, defendant was convicted in the 

Fourth Judicial District Court, Missoula County, of sexual 

intercourse without consent and thereupon sentenced to 20 

years at Montana State Prison. He appeals both the 

conviction and sentence. We affirm. . 

The following errors are attributed to the trial court: 

1. Admitting a photograph depicting abrasions on the 

victim's back. 

2. Allowing three prosecution witnesses to testify 

about conversations they had with the victim. 

3. Refusing to give a special cautionary rape 

instruction. 

4. Utilizing at sentencing psychiatric and presentence 

investigation reports containing unsubstantiated 

information. 

There was conflicting evidence regarding the events 

which occurred on the evening of August 29, 1977. The 

prosecution presented evidence to prove defendant brutally 

raped a young Missoula woman that night. The defendant 

claimed the woman voluntarily engaged in sexual intercourse 

with him. The rape victim testified she went for a drive 

with the defendant, intending to go to a coffee shop and 

discuss personal problems developing between defendant and 

his girlfriend, who was her roommate. Instead of driving to 

the coffee shop, she said defendant drove her to an isolated 

area, parked the car, and made sexual advances. She 

testified that defendant choked and raped her, when she 

resisted the advances. Defendant testified he and the 

victim voluntarily engaged in sexual intercourse in the 

victim's apartment that night. He admitted they did go for 
a drive but insisted they merely drove around town. 

In his first specification of error, defendant claims 

the court erred by allowing into evidence a photograph 

depicting linear abrasions or scratches appearing on the 

victim's back. He maintains the prosecution presented an 

insufficient foundation to properly permit the photograph 

into evidence. We disagree. The nurse who took the picture 

during an examination of the victim immediately following 

the incident testified as follows: 

"Q. Miss Sloan, the other day I showed you a 

picture which is marked as State's Exhibit 

No. 1; is that correct? A. Yes. 

"Q. You took that picture? A. Yes, I did. 

"Q. Why did you take that picture? A. 

Because it was visual markings that were 

clearly seen. 

"Q. Did [the victim] say anything to you 

that made you think that it was necessary to 

take that picture? A. Yes, she did remark 

that she got them [the scratches] that 

evening, or that, you know, at the incident. 

"Q. As a result of the alleged incident? 

A. Yes .'I 

The longstanding rule in Montana is that a photograph 

is admissible if it "fairly and accurately represents 

relevant evidence." State v. Jones (1914), 48 Mont. 505, 

139 P. 441. It is within the discretion of the trial court 

to allow into evidence duly verified photographs to aid the 

jury in its fact-finding process. Fulton v. Chouteau County 

Farmers' Co. (1934), 98 Mont. 48, 37 P.2d 1025. This photograph, suggesting that force was used by defendant during 

the incident, was highly relevant to the issue of consent. 

It tended to corroborate the victim's account of the 

incident. It was of such poor quality that it could not be 

considered inflammatory. In fact, it was of such poor 

quality that it could not be considered prejudicial even if 
it was inadmissible. 

Defendant next contends a portion of the testimony of 

three prosecution witnesses was inadmissible hearsay. These 

witnesses, two friends of the defendant and a rape 

counselor, met with the victim the morning after the rape 

incident. Each witness testified the victim appeared to be 

frightened and disoriented. Over defense counsel's 

objection, the following testimony was given: 

First witness: 

"(2. Did she [the victim] say anything 

specifically in this ride: A. Just rattling 

on, saying, 'Get me out of here. The son of 

a bitch. Getme. . .' 

"Q. I'm sorry. I can't hear you. . . A. 

I'm sorry. 'Son of a bitch. Get me out of 

here. I have to get out of here. Go 

faster. ' You know, because I was driving the 

Volkswagon . . . 

"Q. Did . . . [the victim] say anything 

else? A. She told her, you know, that they 

-- 

"Q. What did she say . . . A. She said she 

was scared; she couldn't talk to Liz because 

she was a cop. That she was--I don't 

remember what else. She was just rattling 

on, just like she was before. 

Second witness: 

"Q. What did [the victim] say to you? A. 

She said, 'Oh, my God. ' 

"Objection . . . 

"Overruled . . . 

"Q. Go ahead, you may-- A. She said, 'Why 

is God doing this to me. ' 

Rape counselor: 

"Q. . . . would you please tell the jury 

what [the victim] told you about any kind of 

physical force-- 

"Objection . . . 

"Overruled . . . 
"Q. You may answer. A. Okay, [she] told me 

that he choked her so much that she thought 

she might black out, and that he used a very 

threatening voice and used verbal threats 

towards her." 

Both parties believe the admissibility of these statements is governed by Rule 803 (2), Mont.R.Evid., the excited 

utterance exception to the hearsay rule, which provides: 

"The following are not excluded by the hearsay 

rule, even though the declarant is available 

as a witness: . . . (2) Excited utterance. A 

statement relating to a startling event or 

condition made while the declarant was under 

the stress of excitement caused by the event 

or condition. " 

Both prosecution and defense agree the alleged rape 

would be sufficiently startling to cause the victim to make 

excited utterances. They disagree as to whether the 

statements here were made "under the stress of excitement" 

caused by the rape, thereby qualifying as excited 

utterances. The defense contends these statements are 

inadmissible because they were made up to four hours after 

the alleged rape incident. The prosecution rebuts 

defendant's argument by showing that the rape victim here 

was suffering from "rape trauma syndrome", a medical term 

for t.he disorientation and shock experienced by rape 

victims following a rape assault. These arguments are not 

germane as the testimony included above does not contain 

hearsay under the Montana Rules of Evidence. 

The first two witnesses' statements do not fit within 

our definition of a hearsay statement. Rule 801(c), 

Mont.R.Evid. defines hearsay as follows: 

"Hearsay. Hearsay is a statement, other than 

one made by the declarant testifying at the 

trial or hearing, offered in evidence to prove 

- the truth of the matter asserted." (Emphasis 

added. ) 

Clearly, the statements made by the first two witnesses were 

not offered to prove the truth of the assertions made 
therein. While they do tend to show that the victim was in 

a high state of anxiety and, possibly, confusion, the prosecution was obviously not presenting them to prove the 

lineage of the defendant or anything about the relationship 

between the victim and the deity. The exclamations 

themselves cannot possibly be viewed as probative of any 

element of the crime. The objections to the witnesses 

recounting them were properly overruled. 

The third statement, although hearsay as defined by Rule 

801(c), is admissible as a nonhearsay statement under Rule 

"(d) Statements which are not hearsay. A 

statement is not hearsay if: 

"(1) Prior Statement by witness. The 

declarant testifies at the trial or hearing 

and is subject to cross-examination concernins 

the statement, and the statement is . . . (~j 

sonsistent with his testimony -- and is offered 

- to rebut an express or implied charqe against 

him of subsequent fabrication, ------ improper 

influence or motive . . ." (Emphasis added.) 

The defendant insisted throughout that the sexual intercourse that occurred with the victim was consensual. In 

order to prove lack of consent, the prosecution called the 

victim to testify. Upon direct examination the victim 

testified defendant had choked her to force her to engage in 

intercourse. Defense counsel on cross-examination attempted 

to impeach her by asking her to explain why she did not 

report this choking to the doctor who examined her after the 

rape incident. After five more witnesses were called by the 

prosecution, the rape counselor was called and she recounted 

the purported hearsay regarding the victim's statement about 

the choking. These circumstances clearly qualify the 

counselor's testimony as nonhearsay under Rule 801(d)(l)(B), 

supra. The quoted declarant (rape victim) testified at the 

trial, she was subject to cross-examination concerning her 
statement, the counselor's statement is consistent with the 

victim's testimony, and it rebuts an implied charge of 

fabrication. 

The hearsay rule is intended to insure that only 

reliable evidence of out-of-court declarations is presented 

to a jury. Testimonial evidence presented at trial may be 

tested for reliability by requiring the witness offering the 

testimony to testify under oath, subject to crossexamination. Hearsay evidence, by definition, is evidence 

that cannot be tested for reliability in this manner. See 

Commission Comment, Rule 801, Mont .R.Evid. Unless the 

hearsay evidence can be shown to have some circumstantial 

guaranty of trustworthiness, its admission is barred. See 

Commission Comment, Rule 803 and 804, Mont.R.Evid. Prior 

consistent statements are defined as nonhearsay statements 

because the reliability of the statement is subject to 

adversarial testing. The rule provides that the declarer of 

the prior statement must be present and subject to crossexamination concerning the statement before another witness 

may he permitted to repeat the declarant's previously made 

statement. The prior consistent statement is admissible as 

evidence only when it is necessary to redeem the credibility 

of the declarant, previously brought into question by the 

opponent. Under Rule 801(d)(l)(B), the opponent "opens the 

door'' to the admission of prior consistent statements by 

attempting to discredit the declarant by claiming 

fabrication. See, Advisory Committee Note, Rule 8Ol(d), 

Fed.R.Evid. That is exactly what was done here and the 

court was therefore correct in overruling the objection to 

the recounting of the victim's prior consistent statement. 

Defendant claims the court erred in refusing to give an 

instruction to the jury that "the accusation of rape . . . 
is easy to make, but hard to defend against," an instruction 

similar to one approved in State v. Smith (1980), Mont . 

, 609 P.2d 696, 37 St.Rep. 583. Smith was decided after 

the time the instruction was refused in this case. The 

facts here, however, do not justify the use of this 

instruction. As this Court held in State v. Pecora (1980), 

Mont. , 619 P.2d 173, 37 St.Rep. 1742, the Smith 

instruction is applicable only if the evidence presented at 

trial shows: (1) personal enmity existed between the victim 

and the defendant, and (2) corroborating evidence of the 

victim's account of the rape incident does not exist. The 

record in this case is significantly different than the 

record in Smith. No evidence of manifest malice or motive 

for revenge between the victim and the defendant was 

presented during the tr ia.1. Further, a good deal of 

corroborating evidence was presented during the trial, 

including the testimony of the victim's friends and the 

physical evidence of the victim's inj ury. The instruction 

was properly ref used. 

The final question has to do with the propriety of the 

sentencing procedure. Following conviction, defendant 

requested the court to order that a psychiatric examination 

and evaluation report be prepared for the court's 

consideration in sentencing. He specifically requested that 

Dr. Noel Hoell prepare the report. The court acceded to the 

request. Dr. Hoell submitted his report to the court after 

personal interviews with defendant and a review of materials 

submitted by the defendant and the Missoula county attorney. 

The psychiatric report turned out to be unfavorable to 

defendant's argument for a light prison sentence. It 

stressed defendant's previous rape charges and described him 

as a liar and a manipulator. It was used not only by the 
court but by a parole and probation officer in preparing the 

presentence investigation. 

Defendant maintains the psychiatric report was "tainted" 

by the materials provided to Dr. Hoe11 by the county 

attorney's office. These materials included references to 

defendant's criminal record. He claims this information was 

misleading and contained innuendo and conjecture. 

Specifically, defendant contends that statements of alleged 

rape victims made in connection with previous similar 

charges, on which defendant was acquitted, were included in 

the materials and thus unfairly influenced the 

psychiatrist's findings. He contends the court's use of 

this "tainted" psychiatric report violates the rule that a 

convicted defendant has a due process guarantee against the 

imposition of a sentence predicated on misinformation. 

State v. Orsborn (1976), 170 Mont. 480, 555 P.2d 509. 

The entire record demonstrates defendant was clearly 

accorded sentencing due process, and that the rule in 

Orsborn, supra, was not violated. He received a copy of 

both the psychiatric evaluation and the presentence report 

in time to prepare for the sentencing hearing. The court 

was fully informed of his contention that a portion of the 

report was "tainted." He was represented by counsel and was 

allowed to present evidence to support the taint allegation 

and to rebut the evaluation conclusions and the presentence 

report. There was, then, fully sufficient procedural 

protection to reasonably assure that the sentence was not 

based on misinformation. See, State v. Higley (No. 80-142, 

Decided 12/17/80, 37 St.Rep. 1942). There is no indication 

that the sentence was, in fact, based on misinformation. 

Cross-examination of all those contributing to a presentence 

report rests in the discretion of the trial court. Section 
46-18-113, MCA. We find no abuse of that discretion here. 

The judgment and sentence are therefore aff irmed. 

Hon. Gordon R. Bennett, 

District Judge, Sitting 

in for Mr. Justice John C. 

Sheehy 

We Concur: 

Chief Justice 

case 

Thisfwas submitted prior to January 5, 1981.