State v. Clark

• Decision Date: 20 November 2008
• Docket Number: No. DA 07-0099.,DA 07-0099.
• Citation: 197 P.3d 977,2008 MT 391,347 Mont. 113
• Parties: STATE of Montana, Plaintiff and Appellee, v. Kelly Dale CLARK, Defendant and Appellant.
• Court: Montana Supreme Court

197 P.3d 977

2008 MT 391

347 Mont. 113

STATE of Montana, Plaintiff and Appellee, v. Kelly Dale CLARK, Defendant and Appellant.

No. DA 07-0099.

Supreme Court of Montana.

Submitted on Briefs August 20, 2008.

Decided November 20, 2008.

For Appellant: Jim Wheelis, Chief Appellate Defender, Helena, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General, Tammy K. Plubell; Assistant Attorney General, Helena, Montana, Mitch Young, Lake County Attorney, Polson, Montana.

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

¶ 1 Appellant Kelly Dale Clark (Clark) appeals the denial of his motion for a new trial, as well as the sentence imposed on him for a conviction of sexual assault. We affirm in part and reverse and remand in part.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 The factual background in this case was previously described in State v. Clark, 2005 MT 330, 330 Mont. 8, 125 P.3d 1099 (Clark I).

¶ 3 On or about July 18, 2002, Clark's fourteen year-old stepdaughter (T.C.) returned home from babysitting and changed into a bikini in preparation to mow the lawn. Clark I, ¶ 5. Clark was home at the time, having returned from playing golf and was lying on a couch in the living room. T.C. later testified that Clark asked her if one of her breasts was larger than the other as she came into the living room, had her kneel beside him, and soon thereafter pushed up her bikini top and exposed her breasts. T.C. reacted by covering up her breasts with her hands to which Clark allegedly replied "It's not like I haven't seen boobs before." Clark I, ¶ 5. He then proceeded to show T.C. "boob exercises" she could perform by pushing her breasts up, down, and sideways. T.C. also stated that Clark had touched her nipples in the process. After the incident, Clark told T.C. that she did not need to tell her mother about what had happened. Clark I, ¶ 5.

¶ 4 T.C. later related these incidents to her mother Christina, and was eventually interviewed by law enforcement officials concerning the matter. Clark I, ¶¶ 6, 9. After T.C. reported the incident, Christina temporarily left Clark and obtained a restraining order against him. As a result of the investigation by law enforcement officials, Clark was arrested and charged with sexual assault on July 31, 2002. Not long after his arrest, Clark and Christina were back in contact with one another. After resuming her relationship with Clark, Christina informed T.C. that she did not want her in her life as long as she did not tell the truth. Clark I, ¶ 9. At Christina's urging, T.C. contacted law enforcement and stated that she had lied during her interview. She was re-interviewed by law enforcement officials and asked to explain what she had lied about. T.C. essentially recounted the same facts adding only that she did not think Clark's acts were "perverted." When asked by law enforcement what prompted her to attempt to change her story, she recounted Christina's ultimatum that T.C. could no longer be in her life if she "kept lying."

¶ 5 Clark was tried before a jury in February 2003. Clark I, ¶ 7. At trial, T.C.'s credibility was questioned and evidence was presented showing that she had lied on several occasions and changed her story concerning the incident. When T.C. testified at trial, she continued to insist that she had lied in her first interview, but was unable to articulate what precisely she had lied about. Moreover, T.C. testified that Clark had initiated the contact, lifted up her bikini top, and touched her breasts.

¶ 6 At trial, Clark testified on his own behalf and offered a different version of events. Clark did not dispute that he had touched T.C.'s breasts, but testified that T.C. had initiated the conversation and had herself lifted up her bikini top, and that he had only touched her breasts with two fingers on the inside of her breasts in order to verify whether they were of unequal size. Clark I, ¶ 11. Clark also stated that he was shocked when T.C. lifted up her bikini top, and reacted in surprise by reaching out and touching her breasts. He also denied that he had actually performed breast exercises on her, but instead simply described to her the breast exercises that she could do and that she performed them on herself. Additionally, in closing arguments Clark maintained that T.C. was not a reliable witness based on her recanted statements and admitted lies, and that there was no evidence that Clark's touching of T.C.'s breasts was sexual in nature.

¶ 7 A jury ultimately convicted Clark of sexual assault and he was sentenced to twenty years in prison with sixteen suspended. Clark I, ¶ 16. After Clark's conviction, T.C. was sent to live with a woman named Alana Myers and her husband, who was a pastor in Bigfork. Clark I, ¶ 14. Both Clark and Christina warned Myers that T.C. had a tendency to lie. While T.C. was living with her, Myers told her that if she had lied about the incident with Clark, she needed to tell the truth. T.C. subsequently recanted her testimony and memorialized her recantation in a letter, which she swore to under oath.

¶ 8 In the letter, T.C. stated that she, not Clark, had initiated the interaction between them by asking Clark if one of her breasts was larger than the other. T.C. also claimed that she, not Clark, had lifted up her bikini top and exposed her breasts to Clark. Additionally, T.C. stated that Clark did not actually touch her nipples and that her previous testimony to that effect was a lie. Instead, T.C. stated that Clark merely touched the side of her breasts. Furthermore, T.C. stated that Clark did not perform the breast exercises directly on her, but instead demonstrated them on himself. T.C. also stated that while the interaction was a little uncomfortable, it was only due to the fact that the conversation involved sexual matters, and not because she thought Clark was after her, coming on to her, or wanted to do more to her than what she initially asked. At the end of this written statement, T.C. reiterated that she saw nothing "perverted or wrong" in what happened, and blamed any characterizations to the contrary on the twisting of her words by the prosecution during her testimony at trial.

¶ 9 In March 2003, Clark moved for a new trial on the basis of T.C.'s letter. Clark I, ¶ 15. The District Court held a hearing on this motion, but ultimately denied it. Clark appealed. On appeal, we reversed the District Court's denial of Clark's motion for a new trial. In Clark I, we revisited and then revised the analysis to be employed by a district court when considering a defendant's motion for a new trial. Clark I, ¶¶ 27-38. We stated that in order to prevail on a motion for a new trial in light of newly-discovered evidence, the defendant must satisfy the following five-factor test:

(1) The evidence must have been discovered since the defendant's trial;

(2) the failure to discover the evidence sooner must not be the result of a lack of diligence on the defendant's part;

(3) the evidence must be material to the issues at trial;

(4) the evidence must be neither cumulative nor merely impeaching; and

(5) the evidence must indicate that a new trial has a reasonable probability of resulting in a different outcome.

Clark I, ¶ 34.

¶ 10 Under this revised standard, we reversed the district court's denial of Clark's motion because of "our inability to glean from the record the District Court's reasons for denying the motion," and because we could not determine whether the district court had correctly applied the law. Clark I, ¶ 42. Thus, we remanded the case "for the District Court to undertake anew Clark's motion for a new trial." Clark I, ¶ 43.

¶ 11 On February 23, 2006, the District Court held a new hearing on Clark's motion. At this hearing, counsel for parties presented oral argument but did not present new testimony or evidence. After this hearing, the District Court once again denied Clark's motion for a new trial, and issued an order explaining its analysis.

¶ 12 In its analysis, the District Court reviewed the evidence and testimony that had been presented at the first hearing on a new trial, and concluded that factors (1) through (3) of the Clark I test were satisfied, but that factors (4) and (5) were not. At the first hearing in 2003, T.C. testified to the version of events as contained in the letter. However, she nonetheless asserted that "she was shocked and surprised when the defendant touched her breast." Clark also testified at the 2003 hearing, reiterating his version of events as related at trial. With respect to factor (4), the District Court concluded that the new evidence was cumulative and merely impeaching. Under factor (5), the District Court concluded there was not a reasonable probability that the consideration of T.C.'s letter by a jury would result in a different outcome. The District Court noted that it was still undisputed that Clark had touched T.C.'s breasts. The District Court further observed that the only factual change in events as set forth in the letter was that T.C. now stated that she, not Clark, initiated the interaction and lifted up her top, and that Clark's touching of her breasts was not "perverted." However, the District Court noted that the jury had already heard this version of events in Clark's testimony at trial.

¶ 13 The jury had also already heard evidence concerning T.C.'s reputation for lying and her motive for recanting her various versions of events. The District Court observed that in Clark I we expressed the view that child recantations are notoriously unreliable and suspect. In this regard, the District Court noted that T.C. had been physically and emotionally removed from her mother as a result of her allegations against Clark and specifically advised that this separation would continue as long as she continued to make allegations against Clark. Additionally, T.C. had received encouragement to recant her previous testimony from at least four...