State v. Godfrey
| Decision Date | 28 July 2004 |
| Docket Number | No. 01-890.,01-890. |
| Citation | 2004 MT 197,322 Mont. 254,95 P.3d 166 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Tracey Raymond GODFREY, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Chad Wright (argued), Appellate Defender Office, Helena, Montana.
For Respondent: Hon. Mike McGrath, Montana Attorney General, Tammy K. Plubell (argued), Assistant Attorney General, Helena, Montana; George H. Corn, Ravalli County Attorney, Hamilton, Montana.
¶ 1 Tracey Raymond Godfrey appeals from the jury verdict, judgment, and sentence of the Twenty-first Judicial District, Ravalli County, in which he was convicted of one count of Felony Sexual Assault. We affirm.
¶ 2 We restate the issue as follows: Should this Court invoke the common law doctrine of plain error and conclude that the prosecutor violated Godfrey's Constitutional right to due process by commenting during trial on his pre-trial silence?
¶ 3 In the summer of 1999, S.M. and her five children returned to Montana after living out of state for a few years. S.M.'s two oldest children are K.M. and her twin sister, who were about nine years old at the time. The twins are the biological daughters of Godfrey's twin brother. Godfrey expressed a desire to become involved in the children's lives, and began spending his Saturdays with them. Although S.M.'s other children are not blood relatives of Godfrey, he took them with the twins on a variety of outings, including swimming, hiking, and shopping. The children occasionally spent the night at Godfrey's residence — a converted school bus located about one hundred yards from his grandmother's home.
¶ 4 On October 1, 1999, S.M. was hospitalized for the birth of her sixth child. She had arranged ahead of time for Godfrey and her friend Lucy Salazar to take care of her other children during her hospital stay. Godfrey picked the children up after work on Friday, October 1, and took them to Pizza Hut for dinner. Afterward, he returned with the children to S.M.'s residence and stayed there until someone else arrived to care for them. The following morning, he picked up S.M.'s children and Salazar's son, and they spent the day "hiking, swimming and hanging out at the bus." On October 3, he drove the children to meet Salazar, in whose care the children were to remain until S.M. was released from the hospital. Godfrey and Salazar conversed briefly before Godfrey left.
¶ 5 Salazar testified that she met Godfrey through her friendship with S.M. and that Godfrey had occasionally included her son in the outings with S.M.'s children. Salazar testified that she helped the children get ready for bed on October 3 and K.M. told her that Godfrey had "put his hand in her night pants" the previous night. K.M.'s "night pants" are pull-up training pants that she wears to bed because she has a medical condition which causes frequent bed-wetting accidents. Salazar said K.M. told her that Godfrey had held her tightly across her stomach and pulled her toward him, that K.M. told Godfrey, "it hurt," and that Godfrey replied, "it's supposed to hurt." When S.M. came home from the hospital on October 4, Salazar informed her of the conversation she had had with K.M.
¶ 6 K.M. had not said anything to S.M. about the incident with Godfrey. S.M. asked K.M.'s school teacher Elizabeth Jameson for advice before broaching the subject with K.M. Jameson conducts weekly class meetings with her students on a variety of topics. At least once per year, she discusses the difference between "good touches" and "bad touches." Jameson decided to use that as the topic of her meeting on October 7. At trial, Jameson testified that K.M. approached her after the October 7 class meeting and stated that she had been touched in a bad way by Godfrey, and that he had pulled down her pants while she was lying on his couch. Jameson encouraged K.M. to discuss the incident with S.M.
¶ 7 S.M. testified that as soon as K.M. returned from school on October 7, K.M. told her that Godfrey had pulled down her "night pants" while she was sleeping on the couch, and that "he was snuggling very tightly and closely from behind her." K.M. also told S.M. that she felt Godfrey's " private part" in her "bottom cheeks."
¶ 8 On October 8, S.M. called the police and stated that she believed Godfrey had molested K.M. Detective David Potter, who is specially trained to interview child victims in sex abuse cases, conducted an hour-long videotaped interview with K.M. During the interview, K.M. told him that she was afraid she was going to have a baby because of what Godfrey did to her, and explained, "He was doing it to me." She also told Potter there had been a similar incident with Godfrey earlier in the summer when he had put his "private" between her "bottom cheeks." She stated that she had never seen his "private," but felt it.
¶ 9 The following day, Potter went to Godfrey's bus with a search warrant. Potter handcuffed Godfrey and told him that K.M. had been sexually assaulted. Potter collected a blanket, Godfrey's cut-off shorts, and some other items and left. He did not question Godfrey, nor did he arrest him or read him his rights. Godfrey did not speak with anyone else connected with the case until his arrest on October 22.
¶ 10 No law enforcement officer ever gave Godfrey a Miranda warning. However, Godfrey signed an Acknowledgment of Rights form on November 2, 1999. The Acknowledgment required Godfrey to place his initials next to each item in a list which enunciated various rights, including one which read, Godfrey went over this document with his attorney. When Godfrey made his initial appearance in court on November 17, 1999, the District Court questioned him about the Acknowledgment to ensure that he had indeed signed it and that he understood its contents. The Acknowledgment was subsequently filed in the record.
¶ 11 When K.M. testified at Godfrey's trial, she recalled that she fell asleep on Godfrey's couch while watching television on October 2. Her sisters were sleeping on a bed in the back of the bus. K.M. woke up in the middle of the night and Godfrey was, "hanging onto my waist and scooting me close to his private." She stated Godfrey pulled her pants down and she felt his "private" against her bottom, and that it felt "like it was sticking to my bottom." K.M. did not remember telling Salazar that Godfrey was hurting her or that he replied, "It's supposed to hurt," and she did not remember telling Potter, "He was doing it to me." She did remember telling Potter "someone told me if you do stuff like that, you'll have a baby."
¶ 12 K.M. also testified that Godfrey had touched her in a similar manner earlier in the summer after they returned to his bus after swimming. K.M.'s sisters had gone next door to Godfrey's grandmother's home, but she was cold and got into bed to get warm and Godfrey climbed into bed with her. She stated that he was "scooting close" behind her and that she felt, "his private between my bottom cheeks." Wanting to get out of the situation, she asked him if she could go to his grandmother's house, but before he responded, her sisters returned to the bus.
¶ 13 K.M. stated that those were the only two such incidents with Godfrey. She asserted that she had never seen Godfrey's "private part," that he never asked her to touch it, that he did not tell her that anything that happened between them was a secret, and that he did not warn her against telling anyone about it.
¶ 14 Godfrey testified in his defense at trial. He recalled that he had taken his nieces on a variety of outings during the summer of 1999, and that they had stayed overnight about six times. He explained that during one swimming excursion in mid-June, they returned to his bus because of a sudden storm. He had the children wait in his car while he went inside and changed into dry clothes. After he changed, he told the children they could come in, and he lay down on his bed. K.M. said she was cold and asked if she could get into bed. K.M. was wearing a t-shirt over her bathing suit and Godfrey was wearing cut-off shorts. He stated that he hugged her to him to warm her up, but he did not remove any of their clothing or touch her below the waist, and that they remained in bed a half-hour to forty-five minutes. During this time, the other kids were running in and out of the bus and some of them went over to his grandmother's residence. He denied having any sexual contact with K.M. at any time.
¶ 15 Godfrey further testified that he continued to babysit the children on a regular basis. In September, S.M. asked Godfrey to watch the children for part of the time that she would be in the hospital to deliver her sixth child. On October 2, Godfrey brought S.M.'s five children and Salazar's son to spend the day with him and stay overnight on his bus.
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