State v. Duffy, 99-054.

Citation300 Mont. 381, 6 P.3d 453, 2000 MT 186
Case DateJuly 18, 2000
CourtUnited States State Supreme Court of Montana

6 P.3d 453
2000 MT 186
300 Mont. 381

STATE of Montana, Plaintiff and Respondent,
Bernard Theodore DUFFY, Jr., Defendant and Appellant

No. 99-054.

Supreme Court of Montana.

Submitted on Briefs February 3, 2000.

Decided July 18, 2000.

6 P.3d 456
Penelope Strong, Attorney at Law, Livingston, Montana, For Appellant

Hon. Joseph P. Mazurek, Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, Montana, Robert Eddleman, Stillwater County Attorney, Columbus, Montana, For Respondent.

Justice TERRY N. TRIEWEILER delivered the Opinion of the Court.

¶ 1 By Information filed in the District Court for the Thirteenth Judicial District in Stillwater County, the Defendant, Bernard Theodore Duffy, Jr., was charged with two counts of sexual intercourse without consent and two counts of incest. Following a jury trial he was found guilty of all four counts. Duffy appeals from his convictions. We affirm the judgment of the District Court.

¶ 2 The following issues are presented for review:

¶ 3 1. Did the District Court err when it denied defense counsel the opportunity to personally review confidential victim records?

¶ 4 2. Did a legislative change in the statute of limitations which pertained to the Defendant's alleged offenses violate the ex post facto provisions of the Montana and federal constitutions?

¶ 5 3. Did the District Court abuse its discretion when it denied Duffy's motions for mistrial based on prosecutorial misconduct?

¶ 6 4. Did the District Court err when it denied Duffy's motions for mistrial based on trial testimony that the Court had previously excluded in its order in limine?

¶ 7 5. Did the District Court err when it denied Duffy's motion to dismiss Counts III (sexual intercourse without consent) and IV (incest) based on insufficient evidence?

¶ 8 6. Do the minimum prison terms found at §§ 45-5-503(3)(a) and -507(4), MCA, as applied to Duffy, violate his right to equal protection?


¶ 9 Duffy and Tina Cook had three children together: David, A.M.D., and Sean. When Duffy and Tina's relationship ended, Duffy married Theresa Fay, Tina's sister. Duffy and Theresa had two children together: M.M.D. and P.J.D. In 1985, Duffy, Theresa, and the five children moved from Idaho to Columbus, Montana.

¶ 10 At trial, A.M.D. testified that during an evening between January and May 1996, while Theresa was not present and the other children where sleeping, Duffy asked her to perform oral sex in exchange for candy. A.M.D. was six years old at the time. A.M.D.'s testimony regarding the event was:

A. So they went to bed, and I don't remember how he got on the floor, but he laid on the floor. He was just wearing jeans. He had pulled down his pants and asked me if-if I would suck on his penis like a popsicle, and I was confused a little bit.
Q. Did you ask him anything at that time?
A. Yes, I asked him if he was drunk because I thought it was a rather odd question, and he said he wasn't. I don't know-I don't remember smelling any alcohol or anything like that. I don't know, but-but before-before he asked me to do that he said that he would give me a candy bar and, okay, you know, and I got down. I do not recall if I touched it with my hands. I know that I did put my mouth around it, but my lips did not touch it.
Q. When you say "it"—
A. His penis. And it must have not been-I'm estimating two to five minutes, the whole incident. I just remember that he zipped up his pants, I believe that I got the candy bar, and I went to sleep.
6 P.3d 457
Q. Now, specifically, do you remember, was his penis in your mouth?
A. Yes. I wasn't touching it with my lips or my tongue or anything though

¶ 11 When A.M.D. was eight years old, she moved from Duffy's home to her mother's home. She told Tina about the sexual incident with Duffy when she was 12, but refused to report it to the State to protect Duffy. A.M.D. lived with Tina in Colorado and Boston, Massachusetts until she was 14. She then moved back to Montana where she lived with Duffy. By then, Duffy and Theresa were divorced.

¶ 12 After Duffy and Theresa divorced, M.M.D. lived with Theresa until they had an argument in 1996. M.M.D. then moved to live with Duffy and his new wife Sherry. After M.M.D. began living with Duffy and Sherry, she testified the following occurred:

A. Nothing unusual happened right away. It was about a couple days, maybe two weeks. Me and my father were sitting in the living room. And he started talking to me about birth control, and I told him I wasn't on it, I didn't want to be put on it, nothing like that. Well, we got into a conversation about him having problems with my stepmom, Sherry, can't get it up, doesn't want to go to the hospital and get it checked out by a doctor, doesn't want it outside the house.
Q. Okay. So he-do you remember the specific words that he used when he was describing this to you?
A. Not all of them. He wanted me to give him a blow job to make sure that it wasn't him because if it wasn't him, he was going to divorce Sherry because she wasn't doing it or something like that. I'm not positive.
Q. What was your response to that request?
A. It was no to begin with, and I started crying. And he had asked me to ask a friend if they would do it, and he offered to pay my friend $50 for it, the same as he would a whore.

M.M.D. testified that she asked a friend to perform oral sex for Duffy, but M.M.D.'s friend refused. M.M.D. testified she then performed oral sex for Duffy, and he gave her $20.

¶ 13 Prior to trial Duffy filed a demand for disclosure and sought discovery of the victims' medical, psychiatric, psychological, and counseling reports. The District Court denied the motion and reviewed the reports in camera. After its review, the court provided Duffy with a redacted copy of one page of the records.

¶ 14 Duffy also filed a motion in limine to exclude evidence of alleged wrongful acts, which the District Court granted. The Court excluded evidence that Duffy allegedly had sexual contact with A.M.D. when she was 14 years old by placing his hand on A.M.D.'s leg near her groin.

¶ 15 During the trial, however, while the prosecutor was examining M.M.D., she testified that after she told her brother Sean about performing oral sex with Duffy, Sean told A.M.D., who then confessed to M.M.D. that she also had similar experiences with Duffy when she was 6 and 14. M.M.D.'s testimony regarding the discussion was:

A. [Sean] was upset. He wanted to tell my sister [A.M.D.] immediately. I told him, "No, it's not supposed to go anywhere. I'm not supposed to tell anybody. I shouldn't have even told you." After that we went back to the trailer, all four of us, [A.M.D.], Sean, [P.J.D.] and I. We're sitting in there by ourselves. Sean had brought it up and explained it to [A.M.D.] while I was there. My sister got upset and said that, "I have no respect for my father anymore. He did the same thing to me," and that's when I found out about my sister.
Q. Okay. But before that time, you hadn't any idea that he had-there had been any incident with your father with [A.M.D.]?
A. No, I did not.
Q. How did [A.D.M.]-did she go into any detail about what had happened to her?
A. No, she didn't. I was told that he had sexually abused her when she was 6 and 14.

6 P.3d 458
Duffy objected and the District Court struck the answer. Duffy then moved for a mistrial, which the Court denied

¶ 16 Duffy also moved for a mistrial based on three incidents which he characterizes as prosecutorial misconduct. Finally, Duffy moved to dismiss Counts III (sexual intercourse without consent) and IV (incest) based on insufficient evidence. The District Court denied these motions, and Duffy was convicted of all four counts. Additional facts will be discussed as they are relevant to particular issues.


¶ 17 Did the District Court err when it denied defense counsel the opportunity to personally review confidential victim records?

¶ 18 We review a district court's conclusions of law to determine if they are correct. In re J.J.G., 1998 MT 28, ¶ 20, 287 Mont. 313, ¶ 20, 954 P.2d 1120, ¶ 20. We review evidentiary rulings for an abuse of discretion. State v. Abe, 1998 MT 206, ¶ 44, 290 Mont. 393, ¶ 44, 965 P.2d 882, ¶ 44. We review orders granting or denying discovery orders for an abuse of discretion. Rocky Mountains Enter., Inc. v. Pierce Flooring (1997), 286 Mont. 282, 298, 951 P.2d 1326, 1336.

¶ 19 During discovery, the prosecution has an obligation to disclose "all material or information, that tends to mitigate or negate the defendant's guilt as to the offense charged or that would tend to reduce the defendant's potential sentence." Section 46-15-322, MCA. The role of the prosecutor is special-it is not to act as a zealous advocate, rather it is to protect the rights of citizens, including citizens accused of crime. See Rule 3.8, Montana Rules of Professional Responsibility. The defendant's right to discover exculpatory evidence is derived from the right to confront witnesses. State v. Reynolds (1990), 243 Mont. 1, 7, 792 P.2d 1111, 1115.

¶ 20 Equally important to the defendant's right to discover exculpatory evidence is the victim's right to protect his or her confidential relations. State v. Donnelly (1990), 244 Mont. 371, 376, 798 P.2d 89, 92. Section 26-1-801, MCA, provides: "[t]here are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person cannot be examined as a witness in the cases enumerated in this part." For example, § 26-1-805, MCA, provides a doctor-patient privilege, and § 26-1-807, MCA, provides a psychologist-client privilege.

¶ 21 When these competing interests conflict, the district court must balance the defendant's need for exculpatory evidence against the privacy interest of the victim. Donnelly, 244 Mont. at 376, 798 P.2d at 92. To balance the relative interests of the defendant and the victim, the district court should...

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