State v. Baker

• Decision Date: 30 April 2013
• Docket Number: No. DA 12–0321.,DA 12–0321.
• Citation: 370 Mont. 43,300 P.3d 696
• Parties: STATE of Montana, Plaintiff and Appellee, v. Jeffrey Edward BAKER, Defendant and Appellant.
• Court: Montana Supreme Court

370 Mont. 43

300 P.3d 696

STATE of Montana, Plaintiff and Appellee,

v.Jeffrey Edward BAKER, Defendant and Appellant.

No. DA 12–0321.

Supreme Court of Montana.

Submitted on Briefs March 13, 2013.

Decided April 30, 2013.

For Appellant: Palmer A. Hoovestal, Attorney at Law, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General; Tammy A. Hinderman, Assistant Attorney General, Leo J. Gallagher, Lewis and Clark County Attorney; Tara Harris and Melissa Broch, Deputy County Attorneys, Helena, Montana.

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

[370 Mont. 44]¶ 1 Jeffrey Edward Baker appeals from his conviction and sentence for sexual assault in violation of § 45–5–502, MCA. We affirm the conviction but decline to address the claim of ineffective assistance of counsel.

¶ 2 Baker presents issues for review which we restate as follows:

¶ 3 Issue One: Whether the District Court erred by admitting into evidence a recorded interview with the victim.

¶ 4 Issue Two: Whether there was sufficient evidence to support the conviction.

¶ 5 Issue Three: Whether the District Court erred in denying Baker's motion for a new trial.

¶ 6 Issue Four: Whether Baker's attorney provided ineffective assistance at trial.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 7 In 2006 Baker began a relationship with the mother of H.B., who was then age 2. When H.B. was age 4 she told her mother about sexual contact Baker had with her, which Baker denied. H.B.'s mother eventually moved out of Baker's residence and in 2010 H.B. told her mother that Baker touched her inappropriately. “He touches his pee to my pee pee and it kind of hurts.” H.B.'s mother called the police.

¶ 8 A trained forensic interviewer, Dawn Spencer, interviewed H.B. prior to trial. H.B. was reluctant to talk about Baker but told Spencer that Baker touched her inappropriately “in a bad way,” and put his privates into her privates.

¶ 9 In an interview with a Sheriff's Department detective, Baker denied any inappropriate contact with H.B. In 2011 the State charged Baker with felony sexual assault based upon incidents of sexual contact with H.B. between 2006 and 2010.

¶ 10 H.B. was age 7 when she testified as the first witness at Baker's jury trial in January, 2012. She testified that Baker was mean and that she was afraid of him but refused to elaborate. The following exchanges on direct examination are typical of H.B.'s testimony at trial:

Q: And do you—do you and your dad [Baker] have a secret?

A: Yes, but I'm not telling you it.

Q: Why not? A: Because.

Q: Tell me why not.

A: I can't.

Q: Why can't you tell me the secret?

A: Because.

Q: Did you tell anyone what the secret was?

A: No.

Q: Never ever?

A: No. It's me and my mom's little secret.

H.B. testified that she had a secret with Baker that she would not tell to anyone. H.B. did not recall the interview with Spencer. She denied drawing the penis that she drew during the Spencer interview. While she testified that Baker had touched her inappropriately, she would not be more specific other than to indicate that it would be inappropriate to touch her private parts. She also circled the groin area on a stick figure presented by the State, indicating the location of her private parts. She would not say what Baker touched her with. She repeatedly stated that she did not want to tell.

¶ 11 On cross-examination by the defense, H.B. stated that she had not told her secret to anyone except her mother and that she would not tell the court either. She said that she would not tell because she was afraid.

¶ 12 From the time that the charging documents were filed, the State disclosed that Dawn Spencer had interviewed H.B., that there was a recording of the interview, and that Spencer would testify at trial. Spencer testified and was cross-examined about her background and experience, and about the circumstances of the recorded interview with H.B. Baker's attorney filed a written objection to admission of the tape, based upon arguments that it was hearsay and denied his right to confront witnesses. The District Court denied the objection and a tape of that interview was admitted into evidence.

¶ 13 Spencer's interview with H.B. was played to the jury. In the interview H.B. said that Baker touched her in a way she didn't like. She said he had touched his privates into her privates in the front of her body, and had put his private part inside her private part. She said that this occurred more than once in bed and in the bath. H.B. stated more than once that Baker “touches into her” in the bath and that these things happened when her mother was not home. She said that it hurt. She drew a picture of a penis to show what had happened.

¶ 14 H.B.'s mother testified that H.B. had told her that Baker put his penis into H.B.'s mouth and took showers with her. She was 4 at the time. H.B.'s mother testified that later after she and Baker terminated their relationship, H.B. told her again that Baker had touched her inappropriately. H.B. said that Baker touched his pee pee into her pee pee and that it hurt. H.B.'s therapist testified that H.B. said that Baker “tortured” her and did “something gross” that she didn't want to talk about.

¶ 15 Baker did not testify at trial and the jury convicted him of sexual assault. The District Court sentenced him to 40 years at the Montana State Prison with 20 years suspended and restricted parole eligibility for 10 years. Baker appeals.

DISCUSSION

¶ 16 Issue One: Whether the District Court erred by admitting the recorded interview with the victim.

¶ 17 Baker contends that the District Court's decision to admit the recording of Spencer's interview with H.B. violated his rights to confront witnesses against him. This Court's review of constitutional issues is plenary, and we review de novo a district court's decisions on those issues. State v. Stock, 2011 MT 131, ¶ 16, 361 Mont. 1, 256 P.3d 899.

¶ 18 Both the Montana Constitution, Art. II, Sec. 24, and the United States Constitution, Amend. VI, provide a defendant with the right to confront or to face the witnesses against him. State v. Maier, 1999 MT 51, ¶ 18, 293 Mont. 403, 977 P.2d 298;Stock, ¶ 23. The essential purpose of the right to confront witnesses is to secure the opportunity to test the witness's testimony through cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986); Stock, ¶ 26.

¶ 19 The right to confrontation “includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion or evasion.” United States v. Owens, 484 U.S. 554, 558, 108 S.Ct. 838, 842, 98 L.Ed.2d 951 (1988). The right to confront includes only the opportunity for cross-examination, but not any guarantee that it will elicit helpful evidence. Owens, 484 U.S. at 559, 108 S.Ct. at 842.

[370 Mont. 47]¶ 20 Both Federal and State decisions establish that the right to confront witnesses is not violated when a testifying witness's prior statement is admitted into evidence. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Maier, ¶ 44. When a witness appears at trial and is available for cross-examination, the right to confrontation does not constrain admission of prior testimonial statements by the witness. State v. Howard, 2011 MT 246, ¶ 33, 362 Mont. 196, 265 P.3d 606 ( citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)).

¶ 21 In Howard the defendant was charged with incest. Like the present case, the child victim testified at trial and the district court admitted a video of a nurse's interview with the victim. On appeal Howard argued that his attorney was ineffective for failing to raise a Confrontation Clause objection to admission of the interview video. This Court held that it was not ineffective assistance of counsel to fail to make a Confrontation Clause objection to the admission of the recording of a prior interview with the victim. The defendant's rights under the Confrontation Clause were protected because the victim testified at trial and was subject to cross-examination. Howard, ¶¶ 33–34.

¶ 22 In Maier, a witness identified a person other than Maier as the person who had shot the victim. The witness later told police that the first statement was a lie because he feared Maier, and that Maier was the shooter. At trial the witness refused to identify the shooter and claimed to not remember any prior statement implicating Maier. This Court upheld the district court's admission of the witness's prior statements to the police. Admission of the statements did not implicate Maier's right to confrontation because the witness was present at trial and subject to cross-examination. Maier, ¶ 30.

¶ 23 H.B. was present at Baker's trial and was subject to cross-examination. Baker argues that his Confrontation Clause right to cross-examination of H.B. is the crux of his appeal. He asserts that this right was denied because the State did not ask H.B., on direct examination, about each statement she made during the prior recorded interview. Baker contends that this prevented his attorney from cross-examining H.B. on those important points. However, H.B. testified that Baker had touched her “inappropriately” and that an inappropriate touching involved “the private parts.” H.B. circled the private parts on a stick figure drawing and said that Baker's inappropriate touching happened when her mother was at work. H.B. also testified that she had not previously told anyone but her mother about the inappropriate touching.

[370 Mont. 48]¶ 24 This testimony by H.B. provided sufficient opening for Baker's attorney to cross-examine about the inappropriate touching, what it entailed, and whether H.B. had told anyone else about it. Baker cannot contend that his confrontation rights were violated because the Spencer statement was introduced after H.B. testified, Howard, ¶ 34. As noted, the right to...