State v. Colburn

• Decision Date: 23 February 2016
• Docket Number: No. DA 14–0181.,DA 14–0181.
• Citation: 366 P.3d 258,382 Mont. 223
• Parties: STATE of Montana, Plaintiff and Appellee, v. James Morris COLBURN, Defendant and Appellant.
• Court: Montana Supreme Court

382 Mont. 223

366 P.3d 258

STATE of Montana, Plaintiff and Appellee,

v.James Morris COLBURN, Defendant and Appellant.

No. DA 14–0181.

Supreme Court of Montana.

Argued and Submitted Dec. 2, 2015.

Decided Feb. 23, 2016.

For Appellant: Jennifer A. Hurley (argued), Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler (argued), Assistant Attorney General, Helena, Montana, William E. Fulbright, Ravalli County Attorney, Hamilton, Montana.

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 James Colburn appeals from his October 2013 convictions in Ravalli County District Court of the offenses of incest, sexual intercourse without consent and sexual assault. We reverse the convictions and remand for a new trial.

¶ 2 We consider the following issues:

¶ 3 Issue 1: Whether the District Court erred when it disqualified Colburn's expert witness from testifying at trial.

¶ 4 Issue 2: Whether the District Court erred in its application of the Rape Shield Law to exclude evidence that Colburn offered at trial.

BACKGROUND

¶ 5 In 2013 the State charged Colburn with two counts of incest, § 45–5–507, MCA ; one count of sexual intercourse without consent, § 45–5–503, MCA ; and two counts of sexual assault, § 45–5–502, MCA, all felonies. In October 2013 the jury convicted Colburn of all of the charged offenses. In February 2014 the District Court entered judgment sentencing Colburn to terms of imprisonment on each of the convictions. Colburn appeals.

STANDARD OF REVIEW

¶ 6 We review a district court's rulings on the admission of evidence, including the admission of expert testimony, for abuse of discretion. Beehler v. Eastern Radiological Assoc., 2012 MT 260, ¶ 17, 367 Mont. 21, 289 P.3d 131. We review a district court's application of a statute to determine whether the application was correct. Beehler, ¶ 17.

DISCUSSION

¶ 7 Issue 1: Whether the District court erred when it disqualified Colburn's expert witness from testifying at trial.

¶ 8 Rule 702 of the Montana Rules of Evidence allows a person qualified by knowledge, skill, experience, training or education to testify "in the form of an opinion or otherwise" if "scientific, technical or other specialized knowledge" will assist the jury to understand the evidence or determine a fact in issue. We have encouraged district courts to "construe liberally the rules of evidence so as to admit all relevant expert testimony," subject to "stringent cross-examination." State v. Damon, 2005 MT 218, ¶ 19, 328 Mont. 276, 119 P.3d 1194 ; Beehler, ¶ 23. The District Court determined in this case that expert testimony would be appropriate in assisting the jury to understand issues concerning forensic interview techniques.

¶ 9 The sexual intercourse without consent and sexual assault charges against Colburn related to incidents between Colburn and a neighbor girl referred to as R.W. Those incidents occurred when she was age eleven. The State called R.W. as a witness at trial. She testified to encounters with Colburn in which he touched her private parts manually and with his penis. The two incest charges related to incidents between Colburn and his own daughter, referred to as C.C., also age eleven. The State called C.C. as a witness at trial. She denied generally that Colburn had done anything wrong to her.

¶ 10 The State also presented the testimony of Nurse Practitioner Mary Hansen, a clinical supervisor with a children's advocacy and adult sexual assault program at St. Patrick Hospital in Missoula. She has an undergraduate degree in sociology and a master's degree in nursing. She is licensed and certified as a pediatric nurse practitioner. She has attended several courses in sexual assault examiner training for nurses, a course in medical assessments of children, as well as attending several conferences in San Diego on child abuse. She testified that a forensic interview is a "structured conversation" with a child who may have been a victim of a crime. She testified that she has been trained in several different schools of forensic interview techniques, including those offered by the American Prosecutor's Research Institute, by First Witness, and by the American Professional Society on Abuse of Children. She testified that she has "a lot of familiarity with many different models" of forensic interviewing, and that there is no certification program or requirement for forensic examiners. Several times in her testimony she characterized forensic interviewing as both a science and an art that requires "a judgment call [to determine] when you're done."

¶ 11 Hansen interviewed both girls and testified that she followed "best practices" in her interviews. Hansen described disclosures that R.W. made to her about sexual incidents with Colburn. Hansen testified that in her opinion R.W.'s statements to her were consistent with those of a child who had experienced sexual abuse. Hansen opined that R.W. "provided details that were sexual knowledge that a child may not have unless they've had the experience of sexual abuse. " (Emphasis added.)

¶ 12 Hansen also testified about her interview with C.C. during which C.C. described inappropriate touching by her father. The prosecution played a video of Hansen's interview with C.C., which was the major direct evidence to support the incest charges against Colburn.

¶ 13 Prior to trial Colburn disclosed that he intended to call Dr. Donna Zook as an expert in child psychology and forensic interview techniques, to critique the techniques used by Hansen in her interview of C.C. The State interviewed Zook prior to trial.

¶ 14 At trial, Zook testified that she had a doctorate degree in clinical psychology and that her training included 2000 hours in a pre-doctoral internship dealing with juvenile offenders as well as a 3000–hour post-doctoral experience with the Golden Triangle Community Mental Health Center in Havre, Montana. She is a member of the American College of Forensic Examiners and is included in the National Register of Health Service Providers. She has taught psychology at the University of Great Falls. Zook testified that she has done hundreds of juvenile interviews as part of psychological assessments or evaluations. She has also done over twenty critiques of forensic interviews conducted by others and has testified as an expert forensic psychologist hundreds of times.

¶ 15 The defense made an offer of proof that Zook would testify that Hansen used leading or suggestive questions when interviewing C.C., and would describe the result of those questions as reflected in C.C.'s interview. The State objected to Zook's qualification to criticize Hansen's interviews with the victims. The District Court became involved in examining Zook as to her qualifications, focusing on her familiarity with an interviewing protocol adopted by the National Institute of Child Health and Human Development (referred to in the record as the "NICHD"). Zook testified that she was familiar with that forensic interviewing protocol, and that while it was only one of several such protocols, it had been developed by using empirical research. She testified that she had not completed a 40–hour course in the protocol offered by the Institute.

¶ 16 The District Court determined that the area of forensic interviewing techniques was an area that would be appropriate for expert testimony to assist the jury. The District Court further determined that the NICHD interviewing technique was the "gold standard" for forensic interviews of children, and apparently that it was the technique employed by Hansen in her interviews with the victims in this case. Based upon Zook's lack of specific training in the NICHD interviewing protocol, the District Court concluded that she was "not qualified in this area of NICHD criticism." The District Court excluded Zook from testifying as an expert witness.

¶ 17 While the District Court concentrated on whether Zook had been extensively trained in the NICHD interview protocol, Hansen never mentioned that protocol in her testimony. She did not list it as one of the several interview protocols that she had been trained in, and did not testify that she used the protocol in the interview of either victim in this case. Colburn asserts on appeal that the NICHD interview protocol does not appear anywhere in the record except in the District Court's questioning of Zook's qualifications. The State does not refute this assertion.

¶ 18 It is clear to this Court that Zook was qualified by both education and experience to provide a critique of Hansen's interviewing technique as it related to leading or suggestive questions and the effect that such questions could have on the results. Significantly, neither side contends that any properly-administered child forensic interview should rely upon results obtained through leading or suggestive questions. The District Court "too narrowly conceived the subject matter" at issue here by constraining it to whether Zook was qualified in the NICHD interview protocols. Beehler, ¶ 25. Given the importance of the taped interview following CC's general denial that Colburn had assaulted her, Zook's expert opinion about the interview technique was a significant exclusion. The District Court abused its discretion in excluding Dr. Zook from testifying at trial.

¶ 19 Issue 2: Whether the District Court erred in its application of the Rape Shield Law to exclude evidence that Colburn offered at trial.

¶ 20 Colburn asserts that his defense to the charges involving R.W. was that the allegations were fabricated. Both before trial and at trial he sought to introduce evidence that R.W. had a motive to fabricate allegations against him, and that there was an alternative source for her knowledge of the details of sexual behavior other than anything he had done. The defense theory was that R.W. used her allegations against Colburn to determine whether her mother would believe her and, if so, to then disclose...