State v. Gardner

• Decision Date: 11 December 2003
• Docket Number: No. 02-079.,02-079.
• Citation: 2003 MT 338,80 P.3d 1262
• Parties: STATE of Montana, Plaintiff and Respondent, v. Troy Ray GARDNER, Defendant and Appellant.
• Court: Montana Supreme Court

80 P.3d 1262

2003 MT 338

STATE of Montana, Plaintiff and Respondent, v. Troy Ray GARDNER, Defendant and Appellant.

No. 02-079.

Supreme Court of Montana.

Submitted on Briefs August 15, 2002.

Decided December 11, 2003.

For Appellant: Jeannette Ellen Berry, Attorney at Law, Bozeman, Montana.

For Respondent: Honorable Mike McGrath, Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, Montana, Tara DePuy, County Attorney, Livingston, Montana.

For Amicus Curiae: Kirsten H. LaCroix, Deputy Missoula County Attorney, Missoula, Montana (For Montana County Attorney's Association).

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Appellant Troy Ray Gardner appeals the final judgment entered by the Sixth Judicial District Court, Park County, finding him guilty of incest, a felony. We affirm.

¶ 2 The following issues are presented on appeal:

¶ 3 1. Did the District Court err in denying Gardner's motion to suppress the child's testimony as tainted?

¶ 4 2. Was there sufficient evidence to sustain Gardner's conviction?

¶ 5 3. Did the District Court err in allowing rebuttal testimony offered by the State?

¶ 6 4. Did the District Court err by instructing the jury to ignore testimony of a police officer concerning the child's truthfulness?

¶ 7 5. Did the District Court err in allowing testimony by a police officer who stated that, according to his use of the Reid Technique, Gardner was lying in his interviews?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 8 On February 17, 2000, Gardner was charged by Information with four counts of incest with his daughter K.G. in violation of § 45-5-507, MCA. On December 29, 2000, the State amended the Information charging him with a single count of incest.

¶ 9 Troy Ray Gardner (Gardner or father) and Raeann Vernia (Vernia or mother) were married in 1991 and had a daughter, K.G. In 1993, Vernia and Gardner divorced. Pursuant to an agreement, K.G. was to live with her mother for eight months of the year and her father for four months; however, Gardner rarely saw K.G. in the years following the divorce because he was in the military service. This continued for approximately five years until Vernia suggested that Gardner spend more time with K.G. After Gardner left the military and was living again in Montana, K.G., then approximately seven years old, began having some overnight visits with her father about once a month.

¶ 10 On August 12, 1999, K.G. had a roller skating accident in which she injured her genital area on a banister of the porch at her home in Livingston. When Vernia put K.G. in the bathtub to soothe her injury, K.G. asked her mother to inspect her vaginal area. Vernia stated K.G.'s vaginal area appeared bruised, swollen, and chafed. Vernia told K.G. she really did not think the bruising had just happened, and asked if her "dad or someone else" had done something to her. K.G. started crying and responded that her dad had "hit her and rubbed her there."

¶ 11 Vernia took K.G. to the Livingston Police Department where Vernia gave a voluntary written statement alleging incest by Gardner. Vernia then took K.G. to the Livingston hospital emergency room where the child was examined and questioned by Dr. Burwell, the ER physician. Dr. Burwell's assessment of the child's injury was that the physical evidence was consistent with either a straddle injury or sexual abuse.

¶ 12 The following day, August 13, 1999, K.G. was interviewed twice by Officer Severson of the Livingston Police Department. The investigation was then turned over to the Park County Sheriff's Department because K.G. reported the abuse had occurred at the family ranch in Clyde Park. K.G. was interviewed again on September 9, 1999, by Detective Steffins. Two of the three interviews of the child were taped.

¶ 13 On September 22, 2000, Gardner filed a motion to suppress all pretrial statements and exclude any trial testimony by the child witness as "irrevocably tainted," and a motion to dismiss the Information. In the alternative, Gardner's motion to suppress requested a taint hearing, pursuant to Rule 104, M.R.Evid., before determining the admissibility of such evidence. Gardner asserted that unnecessarily suggestive interviewing techniques by police had tainted the child's statements and rendered them unreliable, thus constituting a substantive due process violation under both the United States and the Montana constitutions.

¶ 14 On November 1, 2000, the District Court conducted a "taint hearing" to determine whether the child's testimony had been rendered irremediably unreliable by the investigative process. On November 15, 2000, the District Court denied both the motion to suppress and motion to dismiss.

¶ 15 Following a jury trial from January 10 through January 13, 2001, the jury returned a verdict of guilty.

¶ 16 On February 9, 2001, Gardner filed a motion for judgment of acquittal notwithstanding the verdict, attacking the victim's credibility, criticizing the police investigation, and asserting that no medical evidence existed to support an allegation of sexual abuse. On April 25, 2001, the District Court entered its order denying Gardner's motion, stating:

[T]he jury listened to the defendant and the victim testify, listened to the defendant's expert witness, and the defendant was allowed liberal cross-examination of the officers who conducted the various interviews.

While the defendant rails against the law enforcement interviews and how they "tainted" the victim's testimony, this Court does not agree. The interviews were not ideal, but it does not appear that they had an impact on the victim's testimony. As the Court noted when ruling on a prior motion the victim's statement remained basically consistent from her initial disclosures to her mother and Dr. Burwell. This was before law enforcement got involved. After weighing all the evidence the jury obviously decided that the victim's testimony was more credible than that of the defendant.

¶ 17 On November 5, 2001, the District Court entered its judgment deferring imposition of sentence for five years and imposing numerous conditions on the deferral. Gardner appeals.

DISCUSSION

¶ 18 As a preliminary matter, the State urges this Court to rule that Gardner's appeal is defective and, therefore, not properly before the Court. The State argues that Gardner's notice of appeal, which simply states that he is appealing "from the final judgment," violates Rule 4(c), M.R.App.P., which requires the notice must designate "the judgment, order or part thereof appealed from." The State contends that Gardner's challenges to pre-judgment issues were not preserved by his notice of appeal.

¶ 19 Gardner counters that his notice of appeal properly raises all of his issues on appeal pursuant to § 46-20-104, MCA, which delineates the scope of an appeal by a defendant. Section 46-20-104, MCA, states:

(1) An appeal may be taken by the defendant only from a final judgment of conviction and orders after judgment which affect the substantial rights of the defendant.

(2) Upon appeal from a judgment, the court may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in XX-XX-XXX(2). [Emphasis added.]

In support of its contention that Gardner's notice of appeal is deficient, the State cites State v. Spotted Blanket, 1998 MT 59, 288 Mont. 126, 955 P.2d 1347, and State v. Delap (1989), 237 Mont. 346, 772 P.2d 1268. However, in both of these cases the notice of appeal specifically designated one ruling, but argument on appeal was made for another, and, therefore, this Court, pursuant to Rule 4(c), M.R.App.P., declined to hear the new issue because it was not specified in the notice of appeal. Spotted Blanket, ¶ 12; Delap, 237 Mont. at 351, 772 P.2d at 1271. That is not the case here. We agree that, under § 46-20-104(2), MCA, Gardner's notice of appeal "from the final judgment" is not deficient, and his appeal properly encompasses the issues he raises.

Issue 1

¶ 20 Did the District Court err in denying Gardner's motion to suppress the child's testimony as tainted?

Standard of Review

¶ 21 On appeal, this Court treats a district court's denial of a motion to suppress the testimony of a witness as a ruling on the admissibility of evidence. State v. Bingman, 2002 MT 350, ¶ 19, 313 Mont. 376, ¶ 19, 61 P.3d 153, ¶ 19. The standard of review for a district court's evidentiary rulings is abuse of discretion. Absent a showing of such abuse, the Supreme Court will not overturn the district court's decision. Bingman, ¶ 19.

Discussion

¶ 22 Gardner alleges the District Court erred in denying his motion to suppress the child's pretrial and trial testimony as tainted. Memory "taint" occurs when children's memories "have been falsified by suggestion in the course of interviews and pretrial preparations." John R. Christiansen, The Testimony of Child Witnesses: Fact, Fantasy, and the Influence of Pretrial Interviews, 62 Wash. L.Rev. 705, 707 (1987). If a child's memory is tainted by the investigation process, the potential exists that the child may give unreliable or false statements.

¶ 23 Montana has not adopted the "taint hearing" as a necessary or required procedure in child sexual abuse cases. The State challenges the notion that taint hearings should be conducted at all. Similarly, Amicus County Attorney Association also argues against adopting taint hearings.

¶ 24 We affirm the District Court's decision denying the defendant's motion to suppress and motion to dismiss. However, we decline to address the broader issue of whether taint hearings are required under Montana law. The State did not cross-appeal the District Court's holding of a taint hearing; thus, the issue is not properly before the Court.

¶ 25 Although not required to do so by current law, the District Court conducted...