IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
-vsJACKSON MONTGOMERY SMITH,
Defendant and Appellant.
District Court of the Fourteenth Judicial Cistrict,
In and for the County of Musselshell,
The Honorable Nat Allen, Judge presiding.
COUNSEL OF RECORD:
Torger S. Oaas, Lewistown, Montana
Hon. Mike Greely, Attorney General, Helena,
John Pratt, County Attorney, Roundup, Montana
Submitted on Briefs:
October 19, 1983
January 26, 1984
Mr. Justice Daniel J.
Shea delivered. the Opinion of the
Defendant, Jackson M. Smith, appeals from a Musselshel~l
County District Court judgment entered on a jury verdict
finding him guilty of sexual intercourse without consent and
Both charges stem from an incident near
Roundup, Montana, between defendant and
Defendant was sentenced to ten years imprison-
ment on each count, five years suspended, terms to he served
Defendant raises three issues.
The first two issues
relate to the trial court's preliminary questioning of the
ten-year-old girl in the presence of the jury to determine
whether she was qualified to testify--that is, whether she
could understand the importance of taking an oath.
defendant did not object at trial, defendant first contends
that the trial court impermissibly commented on the credibility of the witness by the manner in which he asked questions.
Second, because he did not object to the questioning, and
because he recognizes that the State claims waiver by this
failure to object, defendant contends that the issue is so
important that this Court must grant a new trial in any event
based on the "plain error doctrine."
And third, defendant
claims the trial court improperly refused his motion
continue the trial once it granted the State's motion to add
one witness five days before trial and three witnesses on the
first day of trial.
The tragic nature of this case is illustrated by the
facts and circumstances leading to the whirlwind marriage of
the defendant and the girl's mother and the ultimate assault
on the young girl.
Defendant is a sixty-year-01-d man who
f i r s t became a c q u a i n t e d w i t h t h e g i r l ' s mother when h e r e a d
an a d v e r t i s e m e n t s h e had p l a c e d i n a magazine d e s c r i b i n g t h e
t y p e of man s h e wanted f o r a husband.
A t the t i m e ,
D e s p i t e a d i s p a r i t y i n a g e s of
and s i x .
n e a r l y 30
t h e d e f e n d a n t and t h e v i c t i m ' s mother c o r r e s p o n d e d by
m a i l f o r a p p r o x i m a t e l y e i g h t months b e f o r e t h e woman came t o
Montana t o meet d e f e n d a n t f o r t h e f i r s t t i m e i n A p r i l 1982.
A f t e r a week's s t a y , t h e woman r e t u r n e d t o Washington t o g e t
t h e c h i l d r e n and c l o s e h e r a f f a i r s t h e r e , and t h e n r e t u r n e d
t o Mont-ana on May 4 ,
She and t h e d e f e n d a n t w e r e mar-
r i e d i n Cody, Wyoming, t h e f o l l o w i n g day.
A f t e r t h e m a r r i a g e , d e f e n d a n t and h i s new w i f e , t o g e t h e r
with her t h r e e children,
l i v e d i n d e f e n d a n t ' s house l o c a t e d
a p p r o x i m a t e l y 11 m i l e s from Roundup.
The house had no e l e c -
t r i c a l l i g h t i n g i n t h e bedrooms and no i n d o o r plumbing.
f a m i l y l i v e d t o g e t h e r i n t h e house from May 1982 u n t i l t h e
i n c i d e n t i n q u e s t i o n o c c u r r e d on J u l y 30, 1982.
On J u l y 30, 1982, t h e mother and c h i l d r e n had gone i n t o
(Roundup) t o buy g r o c e r i e s and b e e r , and t o r u n v a r i o u s
Defendant had gone i n t o town a s w e l l b u t had d r i v e n
a separate vehicle.
They a l l r e t u r n e d from town a t a p p r o x i -
m a t e l y t h e same t i m e .
The g i r l and h e r mother d e c i d e d t h e y
t o s h o o t a t empty c a n s w i t h d e f e n d a n t ' s
r i f l e , and made t h e i r way up a n e a r b y h i l l t o a p l a c e where
they r e g u l a r l y practiced shooting.
and j e r k e d
Defendant became a n g r y ,
t h e gun away from h i s w i f e and t o o k it
w i t h him i n t o t h e house.
Defendant was t h e o n l y p e r s o n who
had c o n t r o l of t h e gun t h e r e s t o f t h e day on J u l y 3 0 , 1982.
Defendant began drinking early the evening of July 30,
1982, and continued to drink steadily until he ate dinner at
approximately 10:OO p.m.
At this time, the children's mother
laid out the 'children's nightclothes and sent them to bed.
fit the time the girl retired she had on underwear, a night
gown, and a robe.
The girl slept on the top bunk of the
bunkbed which she shared with her younger sister.
has three bedrooms, the girl's room being the middle room
between her mother's and brother's rooms.
Defendant and the
children's mother retired at around 10:30 or 11:OO p.m.
Sometime later, the girl heard someone walking around,
propped herself up on one elbow and noticed the defendant
entering her room.
The yard light shone through the bedroom
window and the girl could see the defendant was naked and was
carrying the .22 rifle.
The defendant commanded the victim
to "take off all (her) clothes, or (he wou1.d) shoot."
girl refused and defendant persisted, ultimately yznking the
girl's panties off of her.
Defendant then masturbated into
the girl's panties and tossed them onto the top of the dresser.
Defendant proceeded to spread the girl's legs apart and
penetrated her vagina with his finger, causing the girl to
scream in pain.
Defendant told her to "shut up or (he would)
shoot," and when she did not, he fired the rifle over her
head as she ducked.
The bullet went through the bedroom
The mother and the younger sister were awakened by the
gunshot and the mother rushed to the girl's room to meet the
girl as she retreated and to observe the defendant standing
naked in the corner, with the rifle in hand.
the mother to
[Lleave (the girl) alone, she's not hurt."
The qirl's younger sister did not testify as to what she saw.
The mother gathered the children, hid
them outside, and
returned to the house to call the Sheriff.
gone back to his bedroom and flopped down on the bed.
Three officers responded.
Two Sheriff's Deputies ar-
rived approximately 20 minutes after the call and the Sheriff, Brian
Neidhardt took custody of the .22 rifle (which had a fired
shell casing in the chamber), and the girl's panties.
The first issue relates to the manner in which the trial
court questioned the ten-year-old girl in the presence of the
The girl was called to testify as to the events on the
night of July 30, 1982, and because of her age the trial
court found it necessary to establish that she understood her
obligation to tell the truth.
Without first excusing the
jury, the trial court questioned the girl as follows:
"THE COURT: Lori, do you understand what that wa.s
you just took? An oath? Do you understand that?
Didn't anybody ever explain to you
what an oath was?
"THE COURT: Well, you know what will happen to you
if you lie on the witness stand?
Uh huh (positive.)
What will happen?
1'11 go to juvenile prison.
Well, do you believe that God will
punish you if you lie?
I would like the record to reflect
that the child just nodded her head in the
As well as the Court? You have got
the idea the court is going to punish you?
"THE COURT: And I will too, if youtlie.
will do it too; you know that?
"THE COURT: Al.1 right.
qualified. Go ahead."
I believe the witness is
Defendant failed to object to this exchange at the time
of trial, but wishes to ra.ise it now on appeal.
46-20-104, MCA, provides that failure to make a timely objection at the time of trial constitutes a waiver of the objection and it may not be raised on appeal.
Although counsel on
appeal (who was not trial counsel) recognizes this wa.iver, he
nonetheless argues that we should consider the issue and
reverse by application of the "plain error rule" contained in
section 47-20-702, MCA.
Under the "plain error rule," juris-
dictional and constitutional errors at trial may be reviewed
even though the injured party did not object at the time of
The rule is therefore a-n exception to the waiver rule
of section 46-20-104, MCA.
Defendant contends that the trial court's questioning of
the girl constituted impermissible comment on her credibility
as a witness and thereby deprived him of his constitutional
right to a fair trial.
Although it may have been best to
qualify the girl in the absence of the jury, and although the
questions asked by the trial judge could have been framed
differently, we do not believe the error sufficient to call
for application of the
"plain error doctrine."
counsel did not object to either questioning the witness in
front of the jury nor to the manner in which the questions
were asked, and we hold that by failing to do so he waived
his right to rely on this as a basis to seek reversal and a
Furthermore, except for the issue of penetration,
the elements of both crimes were establishd not only by the
The physical evidence and the testimony of the girl's
mother and the Sheriff establishes that the defendant was in
the girl's room that night, naked, with a loaded gun, and had
his hands and fingers around her vagina.
The physical evidence introduced against the defendant
is consistent with the testimonial evidence offered to substantiate the State's theory of the case.
admitted the girl ' s underpanties
The trial court
(which were stained and
contained three hair specimens), the .22 caliber rifle, and
photographs of the girl's bedroom and the bullet hole in the
Tests performed on the panties showed that the stains
were male sperm and were from a type AB secreter of bodily
fluid, saliva and
Laboratory tests performed on blood and saliva samples taken
from the defendant showed that he is rare blood type AB, and,
he is a type AB secreter.
Identical tests on blood and
saliva samples taken from the girl showed she is a blood type
A and a type A secreter.
Therefore, because the body sub-
stance was that of male sperm from an AR secreter, the expert
serologist from the State crime laboratory concluded that the
stains were those of the defendant, not those of the girl.
Tests were also performed on three hair specimens that
were extracted from the girl's panties.
Two of the three
specimens were pubic hairs and one of those had characteristics consistent with samples taken from the defendant after
he was arrested.
The second pubic hair was "deteriorated"
(old) and could not be tested.
The photographs of the girl's bedroom clearly showed a
bullet hole in the bedroom wall directly above where the girl
slept on the top bunk of the hunkbed.
that the bullet hole had not been in the girl's bedroom wall
when he went to bed the night of July 30, 1982.
also showed that no one but the defendant had custody of the
gun that night.
It was reasonable for the jury to conclude
that the defendant shot the hole in the wall on the night of
July 30, 1982, which places him in the girl's bedroom at a
very incriminating time.
The physical evidence did not stand alone.
ny of the girl's mother is consistent with the physical
evidence and corroborates to the extent possible the testimony of the girl.
She testified that only the defendant had
custody of the gun after he took it from her that afternoon.
She identified the panties admitted into evidence as the ones
the girl had worn to bed.
She testified that she was awak-
ened by a gunshot, and when she heard the girl screaming, she
ran into her room.
There she met the girl running out of the
room and observed the defendant standing naked in the corner
of the bedroom, with the gun in hand. She testified she then
gathered the children and hid them outside the house.
The mother's testimony is compelling.
places the defendant in the victim's room on the night of the
attack, at the time of the attack, naked, and with a rifle in
Her testimony and the physical evidence discussed
above constitute substantial evidence to support the aggravated assault conviction, and, when combined with the testi-
mony of the girl regarding penetration, support as well the
conviction for sexual intercourse without consent.
Further corroborating testimony was offered by Sheriff
Neidhardt, who talked to the girl and her mother the night of
On direct examination, the Sheriff testified
that he arrested the defendant in his bed, naked, and with
the rifle (which had a spent shell casing in the chamber)
laying against the side of the bed.
He also testified on
direct that he went into the qirl's room and noticed the
"soiled" panties on the dresser next to the bunkbed.
recovered these panties as well as the rifle.
ination, the Sheriff testified as to what the girl told him
that night about the incident.
He testified she told him the
defendant had taken her panties off, masturbated in them,
spread her legs apart, was looking and touching places he
should not have, and when she screamed, defendant fired the
The Sheriff's testimony corroborates the mothers testimony, and adds the evidence of the girl's underpanties.
Unlike the Sheriff, the girl's mother had not noticed the
panties on the dresser when she entered the room.
fied that the panties were "wet" and seemed "soiled" to him
when he recovered them.
Based on this evidence, we do not believe the failure of
the trial court to qualify the ten-year-old girl in the
absence of the jury, and by asking more sensitive questions,
calls for the application of the "plain error doctrine."
light of all the independent and highly damaging evidence
against defendant, we do not see that defendant was prejudiced by
Defendant's second contention is that he was denied a
fair trial when the trial court allowed the State to add one
witness five days before trial, and three witnesses on the
morning of trial, and then denied his motion for a continuance to prepare for those witnesses.
The State amended the information five days before trial
to add the expert serologist from the State crime laboratory.
The State again amended the information on the morning of
trial by adding three witnesses who are employees at the
hospital and clinic in Musselshel.1 County.
stipulated to the addition of the latter three witnesses so
long as they testified only to the chain of custody of the
fluid and hair samples they handled.
The witnesses testified
only as to the chain of custody of the samples taken from the
defendant and the girl.
We find no merit in defendant's
argument that they testified to matters extraneous to chain
Testimony regarding procedures necessary to
prepare the samples for shipping to the lab (boiling, packaging) was de minimis.
The other witness added was the State's expert on serology.
She was added five days before trial, but it was made
clear at that time that defense counsel could interview her
at any time during the five days before trial.
not to do so.
We recognize that defendant's counsel on
appeal did. not represent the defendant at trial, but that
does not alter the fact that trial counsel should have interviewed the witness when given the opportunity to do so.
prejudiced by testimony of the added witnesses because his
own testimony corroborated the important points to which they
continuance, was harmless.
Defendant testified that he went to sleep and woke up to
find his wife
(the girl's mother) masturbating him.
testified that when she finished, she cleaned him with "some
scratchy material." that must have been the girl's underwear.
Although he testified that he could not remember seeing the
girl in his bedroom that night, that nonetheless her underwear could have been the article used to wipe away his semen.
This testimony attempts to explain the compelling inculpatory
physical evidence of the male sperm stains and pubic hairs in
the girl's underpanties, which evidence was consistent with
defendant's blood type and pubic hair characteristics.
this testimony, defendant clearly admitted the existence of
sperm substances and pubic hairs i n the girl's
Based on defendant's own testimony, corroborating
the testimony of the added witnesses, we fail to see how
defendant has been prejudiced by a ruling either permitting
the witnesses to testify or by a ruling refusing to grant
The District Court judgment is affirmed.
PA Justice 4
4 .a. Oa/,