State v. Longfellow

• Decision Date: 09 October 2008
• Docket Number: No. DA 06-0789.,DA 06-0789.
• Citation: 2008 MT 343,194 P.3d 694,346 Mont. 286
• Parties: STATE of Montana, Plaintiff and Appellee, v. William Flynn LONGFELLOW, Defendant and Appellant.
• Court: Montana Supreme Court

194 P.3d 694

2008 MT 343

346 Mont. 286

STATE of Montana, Plaintiff and Appellee, v. William Flynn LONGFELLOW, Defendant and Appellant.

No. DA 06-0789.

Supreme Court of Montana.

Submitted on Briefs June 11, 2008.

Decided October 9, 2008.

For Appellant: Jim Wheelis, Chief Appellate Defender; Meghan Lulf Sutton, Law Office of Meghan Sutton, Great Falls, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General; John Paulson, Assistant Attorney General, Helena, Montana, Brant Light, Cascade County Attorney; Susan Weber and Joel Thompson, Deputy County Attorneys, Great Falls, Montana.

Chief Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 William Flynn Longfellow appeals from the judgment entered by the Eighth Judicial District Court, Cascade County, upon a jury verdict convicting him of the felony offense of sexual intercourse without consent. We affirm.

¶ 2 The restated issues on appeal are:

¶ 3 1. Did the District Court abuse its discretion by determining W.G., a developmentally disabled woman, was competent to testify?

¶ 4 2. Did the District Court abuse its discretion by denying the defense's motion for a mistrial based on prosecutorial misconduct?

BACKGROUND

¶ 5 The State of Montana charged Longfellow by amended information with the alternative felony charges of sexual intercourse without consent and attempted sexual intercourse without consent. The State alleged, among other things, that Longfellow digitally penetrated the vagina of W.G., a developmentally disabled woman.

¶ 6 On Longfellow's motion, the District Court held a pretrial hearing regarding W.G.'s competency to testify. At the hearing, the court heard testimony from W.G. and other witnesses, and admitted recordings and transcripts of W.G.'s interviews with a police detective and psychologist Dr. Bruce Frumkin into evidence. The court orally ruled W.G. was competent to testify; it subsequently entered a written order denying the defense's request to disqualify her. The case proceeded to trial, and W.G. and other witnesses testified.

¶ 7 The defense objected twice during the prosecution's closing arguments, and the District Court overruled both objections. Immediately after submission of the case to the jury, the defense moved for a mistrial. The District Court denied the motion.

¶ 8 The jury convicted Longfellow of felony sexual intercourse without consent, and the District Court entered judgment and sentence. Longfellow appeals.

STANDARDS OF REVIEW

¶ 9 We review a district court's ruling on witness competency for abuse of discretion. See State v. Olson, 286 Mont. 364, 370, 951 P.2d 571, 575 (1997) (citation omitted). We also review a district court's ruling on a motion for a mistrial for abuse of discretion. See State v. Ferguson, 2005 MT 343, ¶ 80, 330 Mont. 103, ¶ 80, 126 P.3d 463, ¶ 80 (citations omitted).

DISCUSSION

¶ 10 1. Did the District Court abuse its discretion by determining W.G. was competent to testify?

¶ 11 Every person is competent to be a witness except as otherwise provided in the Montana Rules of Evidence. M.R. Evid. 601(a). A person is disqualified to be a witness if the court finds that (1) the person is incapable of expression concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand the person or (2) the person is incapable of understanding the duty to tell the truth. See M.R. Evid. 601(b).

¶ 12 At the pretrial hearing, the District Court orally reasoned, among other things, that Longfellow had failed to establish that W.G. was incapable of expression concerning the matter so as to be understood; psychiatrist Dr. William Stratford could not state W.G. did not understand the duty to tell the truth based on Frumkin's report or otherwise; W.G.'s statements "did not seem to be particularly inconsistent as to the basic allegation here"; and W.G.'s interview statements and hearing testimony established she understood her responsibility to tell the truth and the difference between the truth and a lie. The court also observed the proposition that inconsistencies go to witness credibility rather than competency, and stated that proposition was "not overcome . . . by the consistency issues that have been raised here, her weak IQ and susceptibility to suggestion, the fact that a retarded person would have a less accurate memory are not persuasive [sic]." Longfellow does not mention any of this reasoning on appeal.

¶ 13 Acknowledging that determinations of witness credibility are within the province of the jury, Longfellow asserts that W.G.'s statements were inconsistent. He argues that the consistency of a witness in reporting an event is crucial in determining his or her competency to testify, and advances State v. A.D.M., 216 Mont. 419, 701 P.2d 999 (1985), and State v. Eiler, 234 Mont. 38, 762 P.2d 210 (1988), in support of his position.

¶ 14 In A.D.M., the issue was whether a young girl's testimony was sufficient, without corroboration, to support the defendant's conviction of felony sexual assault. We observed that Montana law does not require corroboration of a victim's testimony in a sexual assault case. We then discussed prior cases regarding the competency of child witnesses, determined the girl's testimony was consistent with her prior reports and a psychologist's testimony, and concluded she was competent to testify. We also stated the defendant's arguments went to the weight or credibility of the testimony. A.D.M., 216 Mont. at 421, 701 P.2d at 1000.

¶ 15 In Eiler, the appellant asserted a child witness was not competent to testify and pointed to her inability to remember certain details of the alleged acts. We cited to A.D.M. after concluding the consistency of the child's testimony and reports, along with a doctor's supporting testimony, demonstrated her capacity to remember the occurrence and her ability to relate her impressions. Eiler, 234 Mont. at 42-43, 762 P.2d at 213. Noting our prior holding that inconsistencies regarding perception of location do not affect the competency of a witness, we then determined that the rephrasing of questions regarding a timeframe alleviated the child's difficulties in answering. Eiler, 234 Mont. at 43, 762 P.2d at 213-14 (citing State v. Phelps, 215 Mont. 217, 226, 696 P.2d 447, 453 (1985)). We also stated that inconsistencies go to credibility, a matter decided by the jury. Eiler, 234 Mont. at 43, 762 P.2d at 214 (citations omitted).

¶ 16 Longfellow asserts W.G. was "far less consistent" than the witnesses in A.D.M. and Eiler, although his discussion of those cases' facts consists of rather scant assertions that the reports and testimony of the witness in each case were consistent and supported by another witness. He also sets forth a number of W.G.'s asserted inconsistencies in the "statement of facts and case" portion of his brief, but presents no developed argument that those inconsistencies—as opposed to the inability of the witness to recall details in Eiler—render a witness incompetent to testify. Nor, as mentioned above, does he address the District Court's determination that W.G.'s statements were not particularly inconsistent with respect to the "basic allegation." We agree with Longfellow that W.G.'s statements were not altogether consistent. We reject, however, Longfellow's assertion that these inconsistencies bear on an evidentiary question regarding W.G.'s competency to testify rather than a jury question regarding her credibility.

¶ 17 Next, Longfellow advances Olson, 286 Mont. at 370, 951 P.2d at 575, and that case's citation to Eiler, in positing that, to be competent, a witness must understand the duty to tell the truth. In the "statement of facts and case" portion of his brief, Longfellow sets forth some of W.G.'s responses to questions regarding the truth and lies. In his argument, Longfellow points to other such responses and asserts Frumkin was concerned regarding W.G.'s conception of the truth because Frumkin believed W.G. was suggestible and likely to "mirror" statements to please others. Longfellow also asserts W.G. was "coached" and sought to please the female prosecutor in this case.

¶ 18 The appellant bears the burden of establishing error, and must cite to legal authority to meet that burden. See State v Hicks, 2006 MT 71, ¶ 22, 331 Mont. 471, ¶ 22, 133 P.3d 206, ¶ 22 (citation omitted). Absent authority or developed argument, we decline to address Longfellow's apparent assertion that Frumkin's opinions regarding suggestibility and mirroring render a witness unable to appreciate the duty to tell the truth or otherwise incompetent. We also conclude, absent argument to the contrary, that some of W.G.'s hearing testimony—that lying is a "[b]ad thing" and her correct responses that certain statements were true and others were lies—are similar to the testimony at issue in Olson and Eiler, wherein we affirmed district courts' determinations that the witnesses understood the duty to tell the truth. See Olson, 286 Mont. at 371, 951 P.2d at 575; Eiler, 234 Mont. at 44-45, 762 P.2d at 214-15. Moreover, we observe again that Longfellow totally ignores the District Court's reasoning which, by its terms, addressed these matters.

¶ 19 We decline to address Longfellow's assertion that W.G. cried as soon as she took the stand and "fell apart" when questioned by defense counsel at the competency hearing, because Longfellow advances no authority suggesting these factors bear on witness competency. See Hicks, ¶ 22. We also decline to consider Longfellow's arguments regarding W.G.'s trial testimony in reviewing the District Court's pretrial competency determination. Finally, we do not address Longfellow's Confrontation Clause arguments, in light of our longstanding rule that we generally do not address issues raised for the first time on appeal. See State v. Rahn, 2008 MT 201, ¶ 22, 344 Mont. 110, ¶ 22, 187 P.3d 622, ¶ 22 (citation omitted).

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