State v. Cates

• Decision Date: 31 March 2009
• Docket Number: No. DA 07-0421.,DA 07-0421.
• Citation: 204 P.3d 1224,2009 MT 94
• Parties: STATE of Montana, Plaintiff and Appellee, v. Donald CATES, Defendant and Appellant.
• Court: Montana Supreme Court

204 P.3d 1224

2009 MT 94

STATE of Montana, Plaintiff and Appellee, v. Donald CATES, Defendant and Appellant.

No. DA 07-0421.

Supreme Court of Montana.

Submitted on Briefs February 11, 2009.

Decided March 31, 2009.

For Appellant: Torger Oaas, Attorney at Law, Lewistown, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General, Sheri K. Sprigg, Assistant Attorney General, Helena, Montana. Thomas P. Meissner, Fergus County Attorney, Lewistown, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Donald Cates (Cates) appeals the denial of his motion to dismiss in the Tenth Judicial District Court. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 On September 16, 2005, a woman contacted the Lewistown Police Department to report that her 16-year-old daughter, S.C., had been raped. S.C. was subsequently interviewed by the police. Initially she stated that she did not know the person who raped her, but later stated that Cates forced her to have sexual intercourse without her consent and had penetrated her. On September 17, 2005, Cates was interrogated by Officer Stacy Danzer (Officer Danzer) at the Lewistown Police Department about these allegations. Cates was 17 years old at the time. Prior to the interrogation, Officer Danzer advised Cates of his Miranda rights but did not properly advise him of his right to parental notification under § 41-5-331(1)(b), MCA, which reads as follows:

When a youth is taken into custody for questioning upon a matter that could result in a petition alleging that the youth is either a delinquent youth or a youth in need of intervention, the following requirements must be met:

. . .

(b) The investigating officer, probation officer, or person assigned to give notice shall immediately notify the parents, guardian, or legal custodian of the youth that the youth has been taken into custody, the reasons for taking the youth into custody, and where the youth is being held. If the parents, guardian, or legal custodian cannot be found through diligent efforts, a close relative or friend chosen by the youth must be notified.

¶ 3 The interrogation between Officer Danzer and Cates was videotaped. During the interrogation, Cates signed a written waiver of his Miranda rights and agreed to speak with Officer Danzer. However, Cates also told Officer Danzer that he wished to speak with his parents during the interview. In spite of this request, Officer Danzer continued with the interrogation of Cates, and Cates made several statements which were potentially incriminating.

¶ 4 On September 19, 2005, Cates was charged in Fergus County District Court with one count of sexual intercourse without consent. Subsequent investigation of Cates led the police to believe that Cates had committed the offense of sexual intercourse without consent on multiple occasions against a total of 5 teenage girls, including S.C. Accordingly, the Fergus County Attorney filed an Amended Information on October 31, 2005, charging Cates as an adult with 10 counts of sexual intercourse without consent, and one count of attempted sexual intercourse without consent.

¶ 5 One of the alleged victims was K.K., a female who was 15 years old at the time of the alleged crime. Two of the sexual intercourse without consent charges were based on alleged offenses committed against her on April 17, 2005, and May 1, 2005. Two of the other sexual intercourse without consent charges were based on acts purportedly committed against S.C. on September 16, 2005. After the alleged sexual crimes had been committed against S.C. on that date, she underwent a forensic rape exam at the Central Montana Medical Center. The rape kit containing evidence from this exam was subsequently delivered to Officer Danzer. On September 17, 2005, the police also recovered a used condom from K.K.'s residence which had been allegedly used by Cates in the rape of S.C. The condom was also delivered to Officer Danzer.

¶ 6 A jury trial was eventually scheduled for December 4, 2006. Cates was represented by attorneys Torger Oaas (Oaas) and R. Allen Beck (Beck). Previously, on January 10, 2006, this Court decided State v. McKee, 2006 MT 5, 330 Mont. 249, 127 P.3d 445. In McKee, we held that failure of law enforcement to comply with § 41-5-331(1)(b), MCA, requires the suppression of any statements made by a youth during custodial interrogation. McKee, ¶ 26. Even though Cates' counsel could have moved to suppress the videotaped interrogation of Cates in light of McKee, Cates' counsel did not do so for tactical reasons. As Cates' counsel later explained, they believed that the videotaped confession was actually exculpatory and that an examination of the videotape would show that Officer Danzer misrepresented statements made by Cates during the interrogation in a police report she later prepared. Cates' counsel also reasoned it would be better for their defense to play the videotape at trial, than have Cates himself testify.

¶ 7 During opening statements, the prosecution described to the jury how Cates allegedly raped the five teenage girls referenced in the Amended Information. The prosecution also discussed Cates' videotaped confession, and referred to portions of the videotape which it argued were incriminating.

¶ 8 On the morning of day three of the trial, K.K. took the witness stand and testified about her relationship with Cates. K.K. testified that she and Cates dated from February 2005 to September 2005, and that Cates had forced her to have sexual intercourse against her will during course of their relationship. Since the Amended Information only alleged that Cates committed a sexual offense against on K.K. April 17, 2005, and May 1, 2005, Cates' defense counsel objected that K.K.'s testimony violated M.R. Evid. 404, which prohibits testimony about prior bad acts. The District Court overruled the objection at the time, but granted a request from Cates' counsel to be heard later outside the presence of the jury on a motion for a mistrial.

¶ 9 K.K.'s testimony concluded around noon on the third day of trial. After she finished, the District Court dismissed the jury for lunch and heard Cates' motion for a mistrial. Outside the presence of the jury, Cates noted that the Amended Information charged two counts of sexual intercourse without consent for acts committed on K.K. on April 17 and May 1, 2005. Cates asserted that K.K.'s testimony referenced other instances of forced sexual intercourse between February 2005 and September 2005, while they were dating. Because the State failed to provide the required notice of its intent to introduce evidence of other crimes or bad acts with respect to K.K. pursuant to State v. Just, 184 Mont. 262, 602 P.2d 957 (1979), modified by State v. Matt, 249 Mont. 136, 814 P.2d 52 (1991). Cates argued that the prosecution's actions constituted "clear cut" reversible error, warranting a mistrial.

¶ 10 After argument for a mistrial on this basis, Cates then presented a second motion for a mistrial to the District Court. During the State's direct examination of K.K., the following exchange occurred:

[Prosecution]: What's the number-one rule that I told you about testifying?

[K.K.]: Calm down. Don't talk about Defendant's prior —

[Prosecution]: Well, no that's not what I am thinking about. I am thinking of telling the truth.

[K.K.]: Yes, the truth, the whole truth, and nothing but the truth.

¶ 11 Cates argued the prosecution asked this question of K.K. expecting to get the answer she gave, and that such action constituted prosecutorial misconduct as it was improper vouching for the veracity of the witness. Accordingly, Cates argued this action by the prosecution constituted reversible error and an additional ground for a mistrial.

¶ 12 The Court then recessed for lunch, reconvening at around 1:20 p.m. outside the presence of the jury. At that time, the prosecution team of Fergus County Attorney Thomas P. Meissner (Meissner) and Deputy County Attorney Monte Boettger (Boettger) raised the possibility that a mistrial might be required based on references made to the videotaped confession in their opening statement. Meissner observed to the District Court that the videotaped confession was likely inadmissible under McKee. Meissner indicated that he just realized this the previous evening while watching a redacted version of the videotape which had been prepared for trial by Boettger. Meissner noticed that Cates had requested to speak with his parents during the interrogation by Officer Danzer. Meissner claimed that this "rang a bell" for him and led him that very morning to conduct research on this issue. In the course of his research, he came upon McKee and realized its potential impact on the trial. After discussing the matter, Meissner and Boettger contacted Musselshell/Golden Valley County Attorney Kent Sipe (Sipe), whom they knew personally from the time that he served in the Fergus County Attorney's Office, for assistance in researching the legal implications of the videotaped confession on the trial. In particular, Meissner informed the District Court that the State was concerned about the fact that references to the videotaped confession during opening statements by the prosecution would constitute either reversible or plain error in light of the fact that such evidence would be inadmissible against Cates. As reflected in the transcript of the proceedings, the following exchange then occurred among Boettger, Meissner, Oaas, Beck, and the District Court:

MR. MEISSNER: Basically, it appears to us that the confession is inadmissible because [Cates] was not advised of his right to contact his parents, so what Monte [Boettger] and I did we talked about that first thing this morning and called Kent [Sipe] and asked Kent to do some research on it, you know, to see, you know, whether something like that is — of course, you know, we had some comments in opening statements about that, whether or not...