City of Missoula v. Duane

• Decision Date: 11 August 2015
• Docket Number: No. DA 13–0813.,DA 13–0813.
• Parties: CITY OF MISSOULA, Plaintiff and Appellee, v. Michael Arthur DUANE, Defendant and Appellant.
• Court: Montana Supreme Court

380 Mont. 290

355 P.3d 729

2015 MT 232

CITY OF MISSOULA, Plaintiff and Appellee

v.Michael Arthur DUANE, Defendant and Appellant.

No. DA 13–0813.

Supreme Court of Montana.

Submitted on Briefs June 24, 2015.

Decided Aug. 11, 2015.

Rehearing Denied Sept. 15, 2015.

For Appellant: Wade Zolynski, Chief Appellate Defender, Lisa S. Korchinski, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Appellate Defender, Helena, Montana, Jim Nugent, Missoula City Attorney, Gary L. Hendricks, Deputy Missoula City Attorney, Missoula, Montana.

Opinion

Justice PATRICIA COTTER delivered the Opinion of the Court.

¶ 1 Michael Arthur Duane appeals from the Fourth Judicial District Court's order affirming the Municipal Court judgment of conviction and sentence for misdemeanor animal cruelty. We affirm.

ISSUES

¶ 2 A restatement of the issues on appeal is:

¶ 3 Did the District Court err in affirming the Municipal Court decision allowing a witness for the City of Missoula to testify via Skype, an internet-based live two-way video/audio conferencing and communication program, during Duane's trial?

¶ 4 Did the District Court err in concluding that M. R. Evid. 611(e) does not apply to criminal cases?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 On February 26, 2013, Michael Arthur Duane and two other persons owned four dogs, one of which was an Australian Shepherd puppy approximately two or three months old. Duane and the couple kept the dogs in a 17–foot recreational vehicle (RV) parked outside a Missoula motel where the three individuals lived at that time. Another guest at the motel called the Missoula Police Department upon learning that the puppy had died. Two officers responded and were permitted to enter and photograph the RV where the remaining dogs were housed. The RV was filthy and littered with garbage, dog feces and urine, as well as old food, dirty dishes, and old propane tanks. The windows were completely closed to fresh air and the dogs had no water. The dead puppy was wrapped in a towel in the motel room and was later taken by the police to a local veterinarian's office for a necropsy. Dr. Lindsay Sjolin examined the puppy's body and determined it had died from blunt force trauma resulting in multiple internal injuries.

Based upon the dogs' living conditions—and not the puppy'sdeath—the three owners were charged in Municipal Court with misdemeanor cruelty to animals. Each requested a separate trial and the Municipal Court granted their requests. This appeal pertains only to Duane.

¶ 6 Prior to Duane's trial, the City requested that accommodations be made because Sjolin had moved her practice to California. The City asserted that requiring Sjolin to travel to and testify in person at three separate trials would impose an extraordinary expense on the City and a significant burden on Sjolin. The City suggested that it could either substitute Sjolin's supervisor to testify to Sjolin's report or that Sjolin could testify via Skype. The City argued that with the advancements of two-way video/audio technology, the face-to-face confrontation clause would be satisfied.

¶ 7 Duane and the attorneys for his co-defendants objected to Sjolin's supervisor testifying in her stead. Duane also argued Skype testimony would not satisfy his right to confront the witnesses against him.

¶ 8 After hearing argument from the City, Duane's attorney, and counsel for the other two defendants, the Municipal Court granted the City's motion. The court determined that Sjolin's supervisor could not testify in place of Sjolin; therefore, Sjolin had to testify in person or via Skype. Relying on Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) and State v. Stock, 2011 MT 131, 361 Mont. 1, 256 P.3d 899, the court concluded that Skype testimony would suffice and would not violate Duane's constitutional right to confrontation.

¶ 9 The Municipal Court conducted a jury trial on August 2, 2013, and Sjolin testified via Skype. At the close of the trial, the jury found Duane guilty. He was subsequently sentenced. Duane notified the court of his intention to appeal and the Municipal Court stayed his sentence. On Duane's appeal, the Fourth Judicial District Court, Missoula County, affirmed the Municipal Court conviction and stayed the sentence pending Duane's appeal to this Court.

STANDARD OF REVIEW

¶ 10 A district court's review of a municipal court's orders and judgment is limited to review of the record and questions of law. Sections 3–6–110 and 46–17–311, MCA. In turn, we review a district court's conclusions of law to determine if they are correct. We review evidentiary rulings for abuse of discretion. A court abuses its discretion if it acts arbitrarily or unreasonably, and a substantial injustice results. State v. Bonamarte, 2009 MT 243, ¶ 13, 351 Mont. 419, 213 P.3d 457 (internal citations omitted).

¶ 11 This Court exercises plenary review of constitutional questions; therefore, we review de novo a trial court's interpretation of Article II, Section 24 of the Montana Constitution. Stock, ¶ 16, 256 P.3d 899.

DISCUSSION

¶ 12 Did the District Court err when it affirmed the Municipal Court decision allowing a witness to testify via Skype, an internet-based live two-way video/audio conferencing and communication program?

¶ 13 Article II, Section 24 of the Montana Constitution provides:

In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, subject to the right of the state to have a change of venue for any of the causes for which the defendant may obtain the same.

(Emphasis added.)

¶ 14 In the last two decades, with the advancement of video conferencing technology, courts across the country have been called upon to address how the use of this technology may affect a criminal defendant's constitutional right to confront his or her accuser. See, e.g., Maryland v. Craig, U.S. v. Gigante, 166 F.3d 75 (2d Cir.1999), and U.S. v. Yates, 438 F.3d 1307 (11th Cir.2006). In Craig, the U.S. Supreme Court, noting that the U.S. Constitution provides that a criminal defendant “shall enjoy the right ... to be confronted with the witnesses against him,” upheld a trial court's ruling allowing young child abuse victims to testify by way of one-way closed circuit television. This arrangement allowed the defendant and court to see the witnesses but the children could not see the defendant. Craig, 497 U.S. at 844, 110 S.Ct. at 3162. The Supreme Court reversed a court of appeals decision to the effect that such video testimony violated the defendant's right to confrontation.

¶ 15 The Supreme Court observed that the primary purpose of the Confrontation Clause is to “ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding.” Craig, 497 U.S. at 845, 110 S.Ct. at 3163. As this Court observed in Stock, “[t]he elements of confrontation include physical presence of the witness, testimony under oath, cross-examination of the witness, and observation of the witness's demeanor by the trier of fact.” Stock, ¶ 23, citing Craig, 497 U.S. at 845–46, 110 S.Ct. at 3163. While setting forth the important purposes of the confrontation clause, however, the Supreme Court declared that it had “never held ... that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial.” Craig, 497 U.S. at 844, 110 S.Ct. at 3163. (Emphasis in original.)

¶ 16 It is well-established that in some respects the Montana Constitution provides greater protection than the United States Constitution. For example, see Gryczan v. State, 283 Mont. 433, 942 P.2d 112 (1997) addressing Article II, Section 10 of the Montana Constitution (right to privacy) and Northern Plains Res. Council, Inc. v. Mont. Bd. of Land Comm'rs, 2012 MT 234, 366 Mont. 399, 288 P.3d 169, addressing Article IX, Section 1 of the Montana Constitution (clean and healthful environment). As noted, Article II, Section 24 of the Montana Constitution specifically guarantees an accused's right “to meet the witnesses against him face to face.” In reference to Montana's confrontation clause, we stated in State v. Clark, 1998 MT 221, ¶¶ 20–22, 290 Mont. 479, 964 P.2d 766, that “we [are] not bound by a United States Supreme Court decision interpreting the Sixth Amendment Confrontation Clause in the context of hearsay evidence ‘as we may interpret our state constitution to guarantee greater rights than those guaranteed by the federal constitution.’ ” Nonetheless, in addressing Article II, Section 24 of the Montana Constitution in Stock, we observed that “we have never interpreted that greater protection to entitle a criminal defendant to literal face-to-face confrontation with all witnesses.” (Emphasis in original.) Stock, ¶ 28.

¶ 17 On appeal to the District Court, Duane relied heavily upon Bonamarte v. Bonamarte, 263 Mont. 170, 866 P.2d 1132 (1994), in which we held that the district court's decision to allow one of the parties to a dissolution proceeding to testify via telephone, over the other party's objection, was reversible error. Applying M. R. Evid. 611(e),¹ we identified six important policies for requiring a witness to testify personally at trial including that personal testimony allowed the trier of fact to evaluate a witness's credibility and demeanor, impressed upon a witness the seriousness of the occasion, and assured that the witness was not being coached or influenced. Bonamarte, 263 Mont. at 174, 866 P.2d at 1134. The Bonamarte Court also expressly noted the difficulty of...