State v. Gafford

563 P.2d 1129, 172 Mont. 380, 1977 Mont. LEXIS 757
CourtMontana Supreme Court
DecidedMay 3, 1977
Docket13475
StatusPublished
Cited by20 cases

This text of 563 P.2d 1129 (State v. Gafford) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gafford, 563 P.2d 1129, 172 Mont. 380, 1977 Mont. LEXIS 757 (Mo. 1977).

Opinions

MR. JUSTICE HASWELL

delivered the opinion of the Court.

Defendant was charged with two counts of sexual intercourse without consent causing bodily injury. Following a jury trial in district court, Lake County, defendant was convicted of both counts. Judge Jack L. Green entered judgment sentencing defendant to consecutive 20 year terms in the state prison on each count. Defendant appeals from the judgment of conviction.

[383]*383The evidence at trial disclosed that on the evening of June 29, 1975, the victim went to the Diamond Horseshoe, a Poison area bar. She was accompanied by her sister Charlotte. Another sister, Debbie, later joined the two girls at the Diamond Horseshoe. While at the bar, the victim noticed defendant Carl Gifford motion to her from across the dance floor. Defendant was married to the victim’s sister Debbie.

The victim left the table where she and her two sisters were seated and joined defendant. The two conversed for a few minutes and thereafter left the bar. According to the victim, defendant asked her to go for a ride and talk over the problems he was having with her sister. Defendant denied this. In any event defendant hid his motorcycle near a rural dirt road outside Poison and joined the victim in her car. They then drove to a bar near Dayton, Montana and had two beers each. When they left the bar in Dayton, defendant purchased a bottle of wine with the victim selecting the brand.

They drove around the countryside drinking the wine and listening to the car stereo. Sometime around midnight as they were returning to Poison, defendant who was driving the car stopped alongside the highway in order to relieve himself. Thereafter as defendant attempted to drive the car back on the highway, the car became stuck. The victim became alarmed that her car had been damaged and an argument followed. At this point the evidence is conflicting as to whether the defendant struck, choked, slapped or sat on the victim. She testified she was forced to accompany defendant into a nearby field where she was subjected to sexual intercourse without her consent. She testified defendant slapped her around and struck her on the nose with his fist whereby she suffered bodily injury. Defendant testified that no sexual intercourse took place on this occasion.

Thereafter defendant and the victim returned to the stuck automobile. A passing motorist stopped and with the aid of a rope freed the car. Defendant and the victim then continued toward Poison and stopped where defendant had previously hidden [384]*384his motorcycle. Both the victim and defendant testified that sexual intercourse then occurred. Defendant testified the intercourse was with consent, while the victim testified it was without her consent and that she suffered bodily injury.

The victim returned home and was examined the following day by Dr, Coriell, the family physician. The examination' revealed several bruises and abrasions on various parts of her face and body. Tests showed the presence of sperm in her vaginal tract. The Lake County attorney was notified.

On June 30, 1975, the county attorney filed a complaint in justice court charging defendant with two counts of sexual intercourse without consent. Defendant was arrested the same day, the public defender was appointed to represent him, bail was fixed and defendant was released on bail. Subsequently defendant waived preliminary hearing and was bound over to district court.

On July 30, 1975, the county attorney filed an information in the district court charging defendant with two counts of sexual intercourse without consent during which the victim suffered bodily injury. Defendant appeared with the public defender, was arraigned and pleaded “not guilty” to each count, waived his right to a speedy trial, and was released on bail previously posted.

On February 4, 1976, the district court set the date of March 1, 1976 for jury trial. On February 6, new counsel for defendant was substituted for the public defender. On that same date defendant’s new counsel filed a written motion to require the state, among other things to provide defendant with a list of witnesses intended to be called by the state at trial, to require the state to produce “all documents, papers, or things which the state intends to introduce into evidence at trial”, and all pictures of the victim or of “any item or locale connected with the events upon which these charges were based.” The district court granted all these motions.

[385]*385On February 17, defendant’s counsel filed a written notice to take the deposition of the victim and to secure “the names and addresses of persons who have information relevant or material to a determination of the facts surrounding the present charge.” The motion of the state to depose the victim was granted and the county attorney assured the court “that to the extent that any names of witnesses who do become known to the State, that they will be turned over to” defense counsel.

The deposition of the victim was taken on February 23. She stated X-rays had been taken of her nose. She further testified these X-rays were taken at the request of the examining physician, Dr. Coriell. At least one week prior to trial, both the county attorney and defendant’s attorney were in possession of a written report by Dr. Coriell that made no mention of X-rays or possible fractures. At the time of the deposition the victim authorized Dr. Coriell to release medical information including tests to defense counsel.

The trial began on Wednesday, March 3. On the weekend of March 6-7, the county attorney telephoned defense counsel and disclosed the existence of X-rays of the victim taken the day following the alleged crime which disclosed a nondisplaced fracture of the nose.

On Monday, March 8, when the trial reconvened, the county attorney moved to enter the name of Dr. David Dahlgren, the radiologist who examined the X-rays, as a witness for the state. Defense counsel objected and requested that in the event the motion was granted a continuance of one week to have the X-rays evaluated by an independent medical expert. A continuance of one day was granted by the court.

Testimony was concluded on March 11 and the case was submitted to the jury. The jury returned a verdict of guilty on both counts. Judgment was entered. Defendant appeals from the judgment.

Defendant raises three specifications of error:

(1) Denial of defendant’s motion for mistrial during jury [386]*386selection based upon non-responsive and prejudicial answers to two prospective jurors.

(2) Reversible error in permitting impeachment of defendant based on a prior conviction of a felony.

(3) Reversible error in permitting the state to add the name of the radiologist as an additional witness for the state in the middle of the trial.

Directing our attention to the first specification of error, the record discloses that at the beginning of the voir dire examination of prospective jurors, the trial judge asked the whole panel if any of them knew any of the parties. Prospective juror Finley indicated he knew defendant and stated at one time he was in jail with defendant. Defense counsel asked if this jailing was at the time of the arrest of defendant on the charges now before the court. Finley answered that he thought it was not — it was on a DWI charge.

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State v. Gafford
563 P.2d 1129 (Montana Supreme Court, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
563 P.2d 1129, 172 Mont. 380, 1977 Mont. LEXIS 757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gafford-mont-1977.