NO. 83-407 

IN THE SUPREME COURT OF THE STATE OF P4ONTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

vs . 

CHESTER R. BAUER, 

Defendant and Appellant. 

Appeal. from: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

Honorable Mark P. Sullivan, Judqe presiding. 

Counsel of Record: 

For Appellant. 

Dunlap and Cauqhlin, Butte, Montana 

Deidre Cauqhlin arqued, Butte, Nontana 

For Respondent : 

Honorable Mike Greely, Attorney General, Helena, 

Montana 

Robert M. McCarthy, County Attorney, Butte, Yontana 

Patrick Flemina argued, Chief Deputy County Attorney, 

Butte, Montana 

Ross Richardson argued, Deputy County Attorney, Butte, 

Montana 

Submitted: February 27, 1934 

Decided : June 4, 1984 

Filed : 8.N 4 ** 1984 

-- Clerk 
Mr. Justice 1,. C. Gulbrandson delivered the Opinion of the 

Court. 

Defendant Chester Bauer appeals from his convictions in 

the District Court of the Second Judicial District, Silver 

Bow County, on charges of sexual intercourse without consent 

and aggravated assault. We affirm. 

On January 26, 1983, D. K. was forcibly raped at knife 

point in her Butte, Montana, home. The rapist, identified by 

D. K. as the defendant, Chester Bauer, had come to the home 

in the late afternoon inquiring as to whether D. K. and her 

husband wa-nted to sell their boat. Apparently Bauer had 

visited. the couple about ten days earlier to inquire about 

the same boat. On the day of the rape, Bauer asked D. K., 

who was home with her children, for a piece of paper to write 

down information about the boat. She went to the kitchen, 

and he followed. When she turned. toward him, Bauer 

brandished a knife. The children were ushered into their 

rooms, and Bauer took D. K. into her bedroom and raped her. 

After the rape and. Bauer's departure from the home, 

D. K. called the police. Detectives Dave Gertz and Tom Green 

arrived at the scene, seized all the bedding from the bed 

where the rape had taken place, a.nd escorted D. K. to the 

hospital where the staff acquired pubic hair and blood sa.mples and took vaginal swabs to secure semen samples. The 

samples were tested by serologist Julie Long. 

In the meantime, detectives were seeking the whereabouts of the rapist. Within a week of the incident, the 

investigation began focusing on Chester Bauer. Detective 

Gertz approached Bauer on February 2 and asked him if he 

would agree to have a current photograph taken so that police 

could update their mugbooks. Bauer, who had had a previous 
encounter with the police, agreed. The police used the new 

photograph and an 01-d one, taken in 1977, to construct two 

separate photographic lineups. Rauer's picture appeared in 

both line-ups, and his pictures were the only ones bearing 

the words "Police Dept. Butte, Montana. lf 

D. K. was called in to see if she could identify her 

attacker from the line-ups. Her husband was asked to see if 

any of the "suspects" matched the description of the man who 

had come to the home asking about the boat. D. K. was unable 

to make a positive identification of her attacker, but showed 

an interest in both photographs of Bauer. The husband made a 

positive identification of Bauer as the man who had come to 

the home about ten days before the rape. 

On February 22, Bauer voluntarily consented to appear 

in a physical line-up. According to Detective Gertz, the 

line-up consisted of six white males, all- of whom had similar 

physical characteristics. No photograph of the line-up was 

taken because the police camera was unavailable. At the 

line-up, D. K. made an immediate positive identification of 

Bauer as the man who had raped her. During the trial, she 

again identified him as the rapist. 

Bauer was charged with sexual intercourse without 

consent and aggravated a-ssault, and was convicted of both 

crimes. A motion for new trial was denied. From the jury 

verdict and denial of the motion for new trial, Bauer appeals, raising four issues: 

(I) Whether the photographic 1-ine-ups were "impermissibly suggestive" and gave rise to an "irreparable 

misidentification" at the subsequent physical line-up and at 

trial? 
(2) Whether the expert testimony of serologist Julie 

Long was more prejudicial than probative and therefore should 

have been excluded? 

(3) Whether the trial. court erred by not striking 

Detective Gertz's testimony regarding Bauer's spontaneous 

remarks made at the time of his a.rrest? 

(4) Whether a juror's failure during voir dire to 

disclose her family relationship to a Butte-Silver Bow jail-or 

severely impaired Bauer's right to a fair and. impartial jury? 

Collateral fa.cts relevant to each issue but not mentioned previously are set farth in the discussion below. 

WHETHER THE PHOTOGRAPHIC LINE-UPS WERE "IMPERMISSIBLY SUGGES- 

- TIVE" ---- AND GAVE RISE TO "IRREPARABLE MISIDENTIFICATION" 7- 

AT THE 

SUBSEQUENT PHYSICAL LINE-UP -- AND AT TRIAL? 

Prior to trial, the court granted Eauer's motion to 

exclude evidence of the attempt at photographic identi fication of Bauer by D. K. The court denied a similar motion to 

suppress evidence of the physical. line-up conducted February 

22 and also denied a motion to prevent any in-court identification of Bauer by D. K. or her husband. Rauer insists that 

denial of these latter motions by the court was erroneous 

because (1) the two photographic line-ups shown to D. K. 

tainted her recollection of her attacker so as to interfere 

with any subsequent identification; (2) the same arrays were 

so suggestive and conducive to irreparable misidentificati.on 

that any identification would be inherently unreliable; (3) 

there is no reliable means of determining the fairness of the 

physical line-up; and (4) any in-court identification would 

have no source independent from the previous photographic and 

physical line-ups. In essence, Bauer argues that the 
identifications made at the physical line-up and during trial 

are tainted by previous attempts at identification. 

This Court follows a two-pronged test when deciding the 

propriety of admitting evidence of an in-court identification 

and/or the results of some prior line-up: 

"First, [whether] . . . the identification procedure [was] impermissibly suggestive; and second, if so, [whether] . . . under the total-ity of the circumstances [the procedure had] . . . such a 

tendency to give rise to a substantial 

likelihood of irreparable 

misidentification that to allow the 

witness to make an in-court identification would violate due process. [Citations omitted.]" State v. Lara (1978), 

179 Mont. 201, 205, 587 P.2d 930, 932. 

See also Sta.te v. Herrera (l.982), 197 Mont. 462, 466, 643 

Initially we decide whether the identification procedures utilized in the case were "impermissibly suggestive." 

With respect to the photographic a-rrays, we recognize that 

only defendant Bauer's photographs bear the inscription, 

"Police Dept., Butte, Montana." Nevertheless, the trial 

court was not convinced, and neither are we, that this fact 

alone amounts to impermissible suggestiveness. While it is 

true that D. K. was present when her husband positively 

identified Bauer as the man who had been a.t the family home 

several days before the rape inquiring about the boat, it 

must be emphasized that D. K. was unable to make a positive 

identificati-on of Bauer from the photographic arrays. She 

only "showed interest" in Bauer's pictures. 

Insofar as the physical line-up is concerned, we again 

find no evidence of impropriety. Detectives Gertz and Green 

testified as to the procedures used in the 1-ine-up, and no 

testimony was offered by Bauer or others to controvert the 
Hon. L. C. Gulbrandson 

Justice, Supreme Court 

Room 436 Justice Bldg. 

215 North Sanders 

Helena, Montana 59620 

CORRECTION. In preparing this opinion for publication, we noted in our verification of titles and 

citations the matters listed below. Corrections have 

been made on our copy of the opinion. 

August 6, 1984 ,,'- 

1 

State v. Bauer. Nd 83-407, ,dune 4, 1984 &\ \ I' 

/--- 

Page 6, line 8 from bottom -- 350 U.S. 377 should read 390 U.S. 377. 

Page 12, line 5 -- 83 P.2d 886 should read 83 P. 886. 

(Also cited on 1ine-i-4, same page). 

Page 13, line 6 from bottom -- People v. Borellis should read People 

v. Borrelli. 

WEST PUBLISHING COMPANY 

Box 43526 

St. Paul, MN 55164 
observations made by the detectives. Therefore we are satisfied that the first prong of the Lara test has been met. 

Even if we assume, for the purpose of argument, that Bauer's 

concerns about suggestiveness have some credence, we find no 

error in admitting evidence of the subsequent identifications 

because, following the second prong of Lara, we conclude that 

the photographic line-ups did not give rise to an irreparable 

misidentification. 

In State v. Higley (Mont. 1980), 621 P.2d 1043, 1049, 

37 St. Rep. 1942, 1947, this Court identified the important 

criteria for evaluating the likelihood of misidentification. 

These factors, first set out by the United States Supreme 

Court in Neil v. Biggers (1970), 409 U.S. 188, 199-200, 93 

S.Ct. 375, 382, 34 L.Ed.2d 401, 411, are (1) opportunity of 

the witnesses to view the criminal at the time of the crime; 

(2) the witness' degree of attention; (3) the accuracy of the 

witness' prior description of the criminal; (4) the level of 

certainty demonstrated by the witness at the confrontation; 

and (5) the length of time between the crime and the 

confrontation. 

D. K. testified that Bauer was in her home from five to 

ten minutes before he made his move. In Simmons v. United 

States (1968), g- U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, 

witness identification of a bank robber who was in the bank 

for approximately five minutes was permitted, the Court 

finding that the five minutes afforded witnesses ample opportunity to view the robbers. It should be emphasized that, in 

the instant case, D. K. also took fleeting glances of her 

attacker while the rape was taking place and while he forced 

her to kiss him. 
Her degree of attention was also very high. The pair 

stood and conversed about the boat before the attack. In the 

bedroom, she was at first standing while facing him, kissing 

him against her wil.]., and then was seated naked on the bed 

facing him before the rape. It cannot be discounted that she 

also answered the door seven to ten days before when he came 

to inquire about the boat. 

The record does not contain D. K.'s original description of the rapist. Nevertheless, defense counsel on crossexamination alleged only one inconsistency between Rauer's 

features and the description. The "inconsistency" was that 

in her statement, D. K. stated that the attacker had "medium 

brown" hair, and then on the stand said his hair appeared 

"dishwater blonde. " Apparently all other features 

described--height, weight, age, lack of distinctive facial 

scars--matched those of the defendant. 

The level of certainty demonstrated at the physical 

line-up was uncontradicted. D. K. immediately identified 

"No. 5" (Bauer) as soon as the curtain was opened. She never 

wavered after all the "suspects" were required to approach 

the glass (a two-way mirror) and speak phrases that were 

spoken by the rapist. 

The length of time between the rape and the physical 

line-up was less than one month. The rape occurred on January 26, 1983, and the physical line-up was conducted on 

February 22, 1983, with the defendant voluntarily present. 

Considering the totality of the circumstances, we 

cannot say that the photographic line-ups gave rise to an 

"irreparable misidentification." The trial court did not err 

by denying exclusion of evidence pertaining to the physicalline-up and in-court identifications. 
WHETHER THE EXPERT TESTIMONY - 

OF SEROLOGIST JULIE -- LONG WAS 

MORE PREJUDICIAL, THAN PROBATIVE AND THEREFORE SHOULD HAVE 

REEN EXCLUDED? 

Rule 702, Mont. R.Evid., allows introduction of "scientific" evidence via the testimony of an expert witness if the 

trial court concludes that the evidence will "assist the 

trier of fact." Of course, any evidence that would be more 

prejudicial to the defendant than probative of a relevant 

issue would be inadmissible. This is Bauer's position regarding the testimony of the State serologist, Julie Long. 

The serologist testified to the results of tests performed on (1) D. K. 's stained underwear, (2) saliva and blood 

samples taken from Bauer, D. K. and D. K. Is husband, (3) the 

vaginal swabs taken at the hospital, and (4) the sanitary 

napkin D. K. was wearin.g the day of the rape. The tests 

identify various "genetic markers" that distinguish one 

individual from another. The tests involved here identified 

body substances as either semen or vaginal fluid, and also 

identified blood types, PGM subtypes (an enzyme present in 

all human cel1.s that has varying chemical characteristics-- 

e.g., subtypes), and "H" factors present in body fluids which 

are secreted. 

Long testified that the tests showed that the woman had 

had sexual intercourse no longer than four to six hours 

before the vaginal swabs were taken, a.nd that the intercourse 

had been with a male secretor with blood type 0, and PGM 

subtypes 1+1+. Rauer has blood type 0, is a secretor, and 

has PGM subtype 1+1+. The percentage of males with those 

genetic markers is 7.15 percent. Bauer contends the "H" 

factor (secretor status) should not be calculated into the 

field statistic because D. K. was a secretor as well, and by 
excluding that factor, the field expands to 19.8 percent of 

the male population. Nevertheless, the fact remains that 

Bauer is a secretor, and that should be relevant. Furthermore, D. K. 's husband, who had been at work all day January 

26, the time of the rape, has blood type A, is a 

non-secretor, and has a PGM subtype of 1+1-, different from 

Bauer in all respects. 

Rauer contends that the reasoning applied by the Court 

of Appeals of New York in two cases, People v. Robinson 

(1970), 27 N.Y.2d 864, 265 N.E.2d 543, 317 N.Y.S.2d 19 and 

People v. Macedonio (1977), 42 N.Y.2d 944, 366 N.E.2d 1355, 

397 N.Y.S.2d 1002, mandates that the expert testimony admitted against him be excluded. In Robinson, supra, the New 

York high court concluded that evidence of defendant's blood 

type, introduced in a rape-murder case, was not probative in 

view of the large portion of the general population having 

the same blood type. The defendant's conviction was not 

reversed, but only because other independent evidence pointing to his guilt was compelling. In Macedonio, supra, the 

defendant's conviction was reversed because of the introduction of evidence of his blood type. 

Robinson and Macedonio involved evidence of a blood 

type in an area consisting of several million people with the 

same blood type. In the immediate case, the evidence of 

blood type, secretor status and PGM subtype correlates with 

the significantly smaller population area of Silver Bow 

County. Moreover, as in the Robinson case, there is other 

independent evidence of Bauer's guilt. D. K. and her husband 

made positive identifications implicatinq Bauer directly or 

indirectly. Arnold Melnikoff, Bureau Chief of the State 

Crime Laboratory, testified that pubic hair and head hair 
found at the crime scene were simj-lar to Bauer's pubic and 

head hair. Melnikoff estimated that the chances of another 

person having the same type of pubic and head hair were one 

in ten thousand. Finall-y, Eauerls alibi defense was discredited by prosecutors. On balance, we conclude that th.e evidence adduced through the testimony of Julie Long was 

admissible. 

WHETHER THE TRIAL COURT ERRED -- BY NOT STRIKING DETECTIVE 

GERTZ ' S TESTIMONY REGARDING -- BAUER ' S SPONTANEOUS REMARKS MADE 

----- AT THE TIME OF HIS ARREST? 

During his direct examination of Detective Gertz, 

prosecuting attorney Patrick Fleming asked Gertz to explain 

the events leading up to and including Bauer's arrest. 

Fleming asked Gertz if Bauer had made any statements. Defense counsel objected on grounds of hearsay, but the court 

was prepared to accept evidence of immediate statements under 

the "excited utterance" exception to the hearsay rule. The 

prosecuting attorney then asked Gertz if Eauer had said. 

anything. According to Gertz, Rauerls statement upon learning that he was under arrest was "Which bitch did it?" 

Defense counsel raised no immediate objection upon 

hearing the statement, but later made a motion to strike 

during her cross-examination of Gertz concerning the statement. The motion was denied. On appeal, Bauer argues that 

the trial court erred by not striking the statement. 

In preparing for trial, defense counsel moved under 

Sections 46-15-301, -302, and -303, MCA, to make discovery of 

several items, including "copies of all written statements of 

the Defendant or admissions of the Defendant taken at any 

time . . . " Defendant contends the remark in question was a 
type of admission, and that it inferred fear of reprisal from 

more than one woman. Defendant maintains the inference to 

other women implied the existence of evidence of other acts 

or wrongs which would have been inadmissible under State v. 

Just (1979), 184 Mont. 262, 602 P.2d 957. 

The inference in Bauer's argument is that the statement 

may have been deliberately concealed. During oral argument 

on appeal, this Court inquired into the State's knowledge of 

the statement. Mr. Fleming, the chief prosecutor, indicated 

that he had no knowledge of the statement prior to trial. He 

said that Gertz was told to review his notes and reco1.l.e~- 

tions and be prepared to answer questions about the investigation and arrest. Gertz did not tell Fleming about the 

statement, and Gertz indicated that defense counsel never 

asked him about any statements made by Rauer immediately 

following his arrest. The record supports Fleming's claim 

that, once Gertz related Bauer's utterance, the State never 

pursued the statement further. Neither Fleming nor his 

co-counsel discussed the statement during closing arguments 

to the jury. Both men focused only on the physical evidence, 

identif ications , and refutation of Bauer ' s alibi defense. 

Only defense counsel dwelled on the statement during examination of witnesses and closing argument, by attempting to 

prove that the statement had never been made. Indeed, Bauer's wife, who was present at his arrest, denied that the 

statement had ever been made. Bauer's motion for new trial 

was not based on the statement having been revealed. 

Based on our examination of the record and consideration of remarks made during oral argument, we are satisfied 

that the prosecution neither deliberately concealed the 

statement nor attempted to use jt as part of its case against 
Bauer . Similarly, we are disinclined to review Bauer's 

concerns about the statement on appeal, primarily because the 

motion to strike the statement was untimely made. In 

Poindexter & Orr Livestock Co. v. Oregon Short Line Ry. 

(1905), 33 Mont. 338, 83 P.M 886, under facts very similar 

to those involved here, opposing counsel did not move to 

strike objectionable statements until after cross-examination 

of the witness who made the statements was completed. We 

held that " ' [t] he practice, whether - in civil or criminal - 

cases, of deliberately permitting evid-ence to be given without objection in the first instance, and then moving to 

strike it on grounds which might readily have been availed of 

to exclude it when offered, is not to be tolerated.'" 

Poindexter, supra, 33 Mont. at 341, 83 ~.jkt( at 887. (citation 

omitted. ) (Emphasis added. ) This proposition was most 

recently reaffirmed in State v. Cripps (19781, 177 Mont. 410, 

582 P.2d 312, a case involving incriminatj-ng statements not 

revealed in a discovery order but not objected to until well 

after their introduction into evidence. 

Because defense counsel's motion to strike in the 

immediate case was untimely made, we conclude that the District Court did not err in denying the motion. Even if we 

were to focus on the allegations of prejudice arising from 

the making of the statement, we would still conclude that 

defendant Bauer is not entitled. to relief. As we emphasized 

in State v. Wells (Mont. 1983), 658 P.2d 381, 40 St.Rep. 127: 

"In a criminal case, if prejudice is alleaed, it 

will not be presumed but must be established for 

the record that a substa.ntia1 right wa,s denied. 

State v. Dupre (1982), Mont., 650 P.2d 1381, 1386, 

39 St.Rep. 1660, 1666. See also section 46-20-7O1, 

MCA. The test that this Court had adopted in 

determining whether the prejudicial error requires 

a reversal is whether there is a reasonable possibility that the inadmissible evidence might have 
contributed to the conviction. State v. Lave, 

supra, 174 Mont. at 407, 571 P.2d at 101; See also 

Chapman v. California (1967), 386 U.S. 18, 24, 87 

S.Ct.824, 828, 17 rJ.Ed.2d 705, 710; Kotteakos v. 

United States (1946), 328 U.S. 750, 765, 66 S.Ct. 

1239, 1248, 90 L.Ed. 1557, 1566-1567." 658 P.2d at 

388, 40 St.Rep. at 133. 

Here, in light of the other evidence conclusively establ-ishing Bauer's guilt, we find that he would have been convicted 

even if the statement had not been made. 

WHETHER. A JUROR'S FAILURE DURING VOIR DIRE TO DISCLOSE HER. - --- 

FAMILY RELATIONSHIP TO - - A BUTTE-SILVER BOW JAILOR SEVERELY 

IMPAIRED BAUEP.'S RIGHT ---- TO A FAIR AND IMPARTIAL JURY? 

Members of the jury panel were asked whether any of 

them ". . . (knew) any of the employees at the Butte-Silver 

Bow law enforcement agency," and then were asked whether any 

of them were "related" to or "knew closely" anyone else who 

was employed by a law enforcement agency "other than (in 

Butte)." Bauer contends he was prejudiced when juror Cathy 

Wa.lsh d.id not disclose that her brother-in-law is one of the 

civilian jailors at the Butte-Silver Bow -jail. Bauer ' s 

motion for new trial wa.s based solely on this failure to 

disclose. The trial court denied the motion. 

Other jurisdictions have held that nondisclosure of 

information requested by jurors is - not grounds for reversal 

unless the non-disclosure amounts to "intentional concealment." See, e.g., People v. ~unoyair (1983), Colo. 

, 660 P.2d 890; People v. ~orelli# (1980), Colo.App. 

, 624 P.2d 900; State v. Hicks (1968), 75 Wash.2d 73, 448 

P.2d 930. Here, there is nothing to show that Walsh intentionally concealed the fact of her brother-in-law's employment, and there is no allegation that Walsh ever spoke with 

him about the case, or displayed hostility or bias toward 
Bauer. She admitted the relationship immediately after being 

contacted by defense counsel after trial. Without more, 

Walsh's omission appears to have been inadvertent and not 

intentional. The trial court therefore did not err in denying Bauer's motion for a new trial. 

The convictions of Chester Bauer for the crimes of 

sexual intercourse without consent and aggravated assault are 

affirmed. 

We concur: 

?hae Chief Justice kdQQ