No. 79-55 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

STATE OF MONTANA, Plaintiff and Respondent,

TERRANCE ANDREW MACKIE, a/k/a JIMMASON, Defendant and Appellant.

Appeal from: District Court of the Fourth JudicialDistrict, In and fortheCounty 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, AssistantAttorney 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

## 11981The Honorable Gordon R. Bennett, districtjudge, sittingfor 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 errorsare attributedtothe trialcourt: 1. Admitting a photograph depicting abrasions on the victim's back. 2. Allowing three prosecution witnesses to testify about conversations theyhad with thevictim. 3. Refusing to give a special cautionary rape instruction. 4. Utilizing atsentencingpsychiatricand 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 hisgirlfriend, who was her roommate. Instead of driving to the coffee shop, she saiddefendant drove her toan 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 thatnight. He admitted they did go fora drivebut insisted theymerelydrove 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 intoevidence. Wedisagree. The nursewho took thepicture during an examination of the victim immediately following the incident testified asfollows: "Q. Miss Sloan, theother day I showed you a picture which 

### is marked as State's Exhibit No. 1; 

### is thatcorrect? A. 

### Yes. "Q. You took thatpicture? A. 

### Yes, I did.

"Q. Why did you take that picture? A. Because it was visual markings that were clearlyseen. "Q. Did [the victim] say anything to you thatmade 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, atthe 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 intoevidence dulyverifiedphotographs to aid the jury in

### its fact-finding process. Fultonv. Chouteau County Farmers' Co. (1934), 98 Mont. 48, 37 P.2d 1025. Thisphotograph, 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. Itwas 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 ifitwas inadmissible. Defendant next contends a portion of the testimony of threeprosecution witnesseswas 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 tobe frightened and disoriented. Over defense counsel's objection, the following testimonywas given: Firstwitness: "(2. Did she [the victim] say anything specifically inthisride: 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 drivingthe 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 toLiz because she was a cop. That she was--I don't remember what else. She was just rattling on, just likeshewas 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 tome.

### ' Rape counselor: 

### "Q. 

# .

# . . would you please tell the jury what [thevictim] told you about any kind of physical force-- "Objection

# ... "Overruled

# ..."Q. You may answer. A. Okay, [she] toldme 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 utteranceexception tothehearsay rule, which provides: "The following arenot excluded by thehearsay rule, even though the declarant 

### is available asa 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 startlingtocause the victim tomake 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 theMontana Rules of Evidence. The first two witnesses' statements do not fit within

our definition of a hearsay statement. Rule 801(c), Mont.R.Evid. defineshearsay asfollows: "Hearsay. Hearsay 

### is a statement, other than one made by the declarant testifying at the trialor hearing, offered inevidence toprove the truthof thematter asserted." (Emphasis 

### - added.) Clearly, the statementsmade by the firsttwo witnesses 

### were not offered to prove the truth of the assertions madetherein. While they do tend to show that thevictim 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 objectionsto the witnesses recounting them were properly overruled. The third statement, althoughhearsay asdefined 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 subjecttocross-examination concernins the statement, and the statement is

# . . . (~j sonsistentwithhis testimony and 

### is offered 

### -- torebut 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 testifieddefendant had choked her toforce her toengage in intercourse. Defense counsel on cross-examination attempted to impeach her by asking her to explain why she did not report thischoking tothedoctor who examined her after the rape incident. After fivemore witnesses

### were called by the prosecution, the rape counselor was called and she recounted thepurported hearsay regarding the victim's statement about the choking. These circumstances clearly qualify the counselor's testimony asnonhearsay under Rule 801(d)(l)(B), supra. The quoted declarant (rape victim) testified atthe trial, she was subject to cross-examination concerning herstatement, 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 reliabilityby requiring thewitnessoffering 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 ruleprovides thatthe 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 onlywhen it is necessary toredeem thecredibility 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 therecounting of thevictim's prior consistent statement. Defendant claims the court erred in refusing togive an instruction to the jury that "the accusation of rape

# ..

# .is easy tomake, but hard todefend against," an instruction similar to one approved in State v. Smith (1980), Mont

# .

, 609 P.2d 696, 37 St.Rep. 583. Smithwas decided after the time the instruction was refused in this case. The facts here, however, do not justify the use of this instruction. AsthisCourt held in Statev. 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 thevictim 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 refused. The final question has todo with the propriety of the sentencing procedure. Following conviction, defendant requested the court toorder that a psychiatric examination and evaluation report be prepared for the court's consideration in sentencing. He specificallyrequested that Dr. Noel Hoell prepare the report. The court acceded tothe request. Dr. Hoell submitted hisreport tothe court after personal interviews with defendant and a reviewof materials submitted by the defendant and theMissoula county attorney. The psychiatric report turned out to be unfavorable to defendant's argument for a light prison sentence. It stresseddefendant's previous rape charges and described him

as a liar and a manipulator. It was used not only by thecourtbut by aparole and probation officer inpreparing the presentence investigation. Defendantmaintains thepsychiatric reportwas "tainted" by the materials provided to Dr. Hoe11 by the county attorney's office. These materials included references to defendant's criminal record. He claimsthisinformation 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), 170Mont. 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 reportwas "tainted." Hewas represented by counsel and was allowed to present evidence tosupport 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, Statev. 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 allthosecontributing toa presentence report rests in thediscretionof the trial court. Section46-18-113, MCA. We find no abuse of thatdiscretion here. Thejudgment and sentence aretherefore affirmed.

Hon. Gordon R. Bennett, DistrictJudge, Sitting infor Mr. JusticeJohn C. Sheehy

WeConcur:

Chief Justice

case Thisfwas submittedprior toJanuary 5, 1981.