State v. Clifford, 03-509.

Citation2005 MT 219,328 Mont. 300,121 P.3d 489
Decision Date11 October 2005
Docket NumberNo. 03-509.,03-509.
PartiesSTATE of Montana, Plaintiff and Respondent, v. Cheryl Irish CLIFFORD, Defendant and Appellant.
CourtUnited States State Supreme Court of Montana

For Appellant: Palmer A. Hoovestal, Hoovestal, Kakuk & Fanning, PLLC, Helena, Montana.

For Respondent: Mike McGrath, Attorney General; Mark W. Mattioli, Assistant Attorney General, Helena, Robert Deschamps III and Kirsten LaCroix, Special Lewis and Clark Deputy County Attorneys, Missoula, Montana.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 The jury found Cheryl Clifford (Cheryl) guilty of tampering with or fabricating physical evidence in violation of § 45-7-207, MCA (1995), and threats and other improper influence in official and political matters in violation of § 45-7-102(1)(a)(ii), MCA (1999). Cheryl appeals various evidentiary decisions. We affirm.

PROCEDURAL BACKGROUND

¶ 2 The State filed an information charging Cheryl with four offenses. Count One charged Cheryl with tampering with or fabricating physical evidence in violation of § 45-7-207, MCA (1995), because she sent letters to members of the Church of Jesus Christ of Latter Day Saints (the Church) and others intending to mislead law enforcement officers in their investigation. The State filed the second, third, and fourth charges against Cheryl for threats and other improper influence in official and political matters in violation of § 45-7-102(1)(a)(ii), MCA (1999). Count Two charged Cheryl with placing posters in East Helena, Montana, intending to influence East Helena Police Department (EHPD) chief, Mac Cummings, by threatening to harm persons at Capital High School; residents at 302 Clark Street, East Helena; and EHPD officials. Count Three charged Cheryl with sending .38 Special cartridges to the EHPD intending to influence Cummings. Count Four charged Cheryl with sending a letter to Officer Deborah Drynan to improperly influence her by threatening her and her children. The jury found Cheryl not guilty of the second and third counts, but guilty of the first and fourth counts.

FACTUAL BACKGROUND

¶ 3 In 1991, Cynthia Hurst and her three children, Daniel, Kalina, and Wesley, moved from New Mexico to East Helena. During the next year, some missionaries from the Church came proselytizing to her door. By May 1992, she had joined the Church. Cheryl and Larry Clifford were also members. Cheryl was a process server and private investigator, and Larry was an officer at the EHPD. The Cliffords had two living children, Megan and Lance.

¶ 4 While the missionaries were encouraging Hurst to join the Church, Hurst began leaving her children with her friend, Charles Scott. Charles Scott lived with his twenty-four-year-old son, Michael Scott. At first, Hurst took the children to Charles's house because they had chicken pox, and could go neither to school nor to daycare. Later, the children wanted to go over there to "play Nintendo." Charles and Hurst would let them stay the night. Over the course of a year and a half, the children went to Charles's house about a dozen times.

¶ 5 In 1994, Hurst's son, Daniel, called Hurst from school and cried as he told her that Michael Scott had been molesting him. Hurst filed charges with the EHPD, where Larry was on duty. During the investigation phase, Cheryl called Hurst and told her the police were going to charge Hurst because Hurst knew that Michael Scott was a child molester when Hurst left her children with him. In November 1995, the court sentenced Michael Scott to forty years in prison.

¶ 6 Larry was upset that the Deputy County Attorney would not charge Hurst for failing to protect her children. That November, in his capacity as a police officer, Larry filed a complaint against Hurst for negligent endangerment under § 45-5-208, MCA (1995). The Church helped Hurst hire a lawyer, who successfully moved the court to dismiss the charges because the statute of limitations had run.

¶ 7 For the present case, the District Court admitted over seventy letters, but many more were received. Bradley Peterson was a Bishop in the Church. In October 1996, the first letter arrived at his personal residence. During the next four years, letters bearing the same scrawling script arrived at the homes of members of the Church and the Cliffords, the Helena Independent Record newspaper, the EHPD, the Montana Highway Patrol, and Officer Drynan's office. The letters were vicious and lascivious, gory and disturbed, and twisted and disgusting. Some of the letters contained adult pornography and sexually explicit and threatening messages reminiscent of horror films. Inter alia, the letters threatened the defendant, Cheryl; her daughter, Megan; Bishop Peterson of the Church; and the police. If the sender had licked the envelopes or the stamps, authorities could have used DNA testing on the saliva, but the perpetrator sealed the envelopes with tape and used self-adhesive stamps. These methods led law-enforcement officers to believe that the sender may have been especially sophisticated about forensic techniques.

¶ 8 In early March 2000, William Cordes was working for the Criminal Investigation Bureau (CIB). The United States Secret Service had given him questioned-documents-examination training, and he had worked on document investigation cases in the past. The CIB chief had assigned him to this case. After bringing himself up to speed and reading the reports, Cordes decided to interview Cheryl and Larry. The Cliffords showed Cordes two fairly recent letters they said they had received in the mail. One of the envelopes had a postmark with a small "tx" constituting the only legible word on the postmark. The other had a "2 JAN" postmark from "LYkES" "SC." Both of the envelopes had the suspicious writing similar to the writing that appeared on the other letters. Instead of giving the letters to Cordes, the Cliffords made copies for him on their fax machine.

¶ 9 In his application for a search warrant of the Cliffords' house, Cordes testified that three of the letters contained references to the Cliffords, Cheryl claimed to have seen Hustler magazine pages in the ditch along a major Helena street while she was driving at 6:30 p.m. during the winter, a search warrant executed at the Hurst residence revealed no evidence connecting the Hursts to the letters and the Cliffords had been extremely vocal in accusing Daniel and his parents of writing the letters. The Cliffords had an envelope from "LYkES, SC." Upon contacting the nearest post office, Cordes discovered that Lykes is an abbreviation for Lykesland, which is the name for an unincorporated voting district. Neither "Lykes" nor Lykesland have post offices. The Cliffords had told Cordes that Daniel was in Army training in South Carolina at the time the letter was mailed. Based on this evidence, Cordes contended that probable cause existed to search the Cliffords' residence. A district court issued a search warrant for the Cliffords' house.

¶ 10 On March 14, 2000, Cordes and three other agents searched the Cliffords' house. Inside, one of the agents found two stamp kits with individual rubber characters for making stamps. One of the kits had all the characters still glued and connected. The other had all the characters still glued together, except: `L,' `Y,' `k,' `E,' `S,' `2,' `J,' `A,' `N,' `X,' and `,'.

¶ 11 Following the search of the Cliffords' house, only one more letter arrived. A year after the search, in March 2001, a churchgoer received a letter marked "Return to Sender" with the same scrawled handwriting.

¶ 12 The Lewis and Clark County Sheriff's Office first contacted James Blanco about this case in December 1998. Blanco is one of about 150 experts in the United States and Canada certified by the American Board of Forensic Document Examiners. This is the only certification recognized by crime laboratories in the majority of governmental agencies, including the United States Secret Service; the Internal Revenue Service; and the Bureau of Alcohol, Tobacco, Firearms, and Explosives. In his first of five reports, Blanco could neither identify nor eliminate Cheryl, Larry, or Daniel as writers of the anonymous letters. After the search of the Cliffords' house, Cordes sent Blanco another batch of documents to analyze for the writer's identity. This time, Blanco had more success. He identified Cheryl as the author of the Lykes envelope and the author of the "tx" envelope. In his final three reports, Blanco identified Cheryl as having written even more of the suspicious letters and envelopes.

¶ 13 To support the motion to file the information, the State's affidavit set forth, inter alia, Cheryl's and Larry's occupations and membership in the Church, details about the Michael Scott sexual molestation case, Larry's issuance of the negligent endangerment complaint, and the subsequent commencement of the letters. The affidavit described Cordes enlisting Blanco and Blanco's conclusions that Cheryl authored many of the letters. Further, it recited that John Wardell, who was also a member of the Church, had been delivering a small cargo container to the Hurst residence when he saw a vehicle driving by that looked exactly like a vehicle the Cliffords owned. Two days later, Wardell's daughter received a handwritten mailing referencing Wardell's trip to the Hurst residence.

¶ 14 The affidavit asserts that the Lewis and Clark Sheriff's Office had searched the Hurst residence years earlier, when they suspected Daniel, but had found no incriminating evidence there. It recounts the many instances in which Blanco identified Cheryl as having written various letters including the ones sent to the Montana Highway Patrol, the Lewis and Clark County Sheriff's Office, and the Helena Independent Record newspaper. The affidavit also states that, in April 1999, Larry...

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