State v. Harris

• Decision Date: 19 February 1991
• Docket Number: No. 89-226,89-226
• Citation: 247 Mont. 405,808 P.2d 453
• Parties: STATE of Montana, Plaintiff and Respondent, v. Kathryn HARRIS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 453

808 P.2d 453

247 Mont. 405

STATE of Montana, Plaintiff and Respondent, v. Kathryn HARRIS, Defendant and Appellant.

No. 89-226.

Supreme Court of Montana.

Submitted on Briefs Dec. 18, 1990.

Decided Jan. 24, 1991.

As Corrected Feb. 19, 1991.

Gary E. Wilcox, Billings, for defendant and appellant.

Marc Racicot, Atty. Gen., Dorothy McCarter, Ass't. Atty. Gen., Carol A. Donaldson, legal intern, Helena, and Gerry M. Higgins, Sp. Deputy County Atty., for Musselshell County, Ryegate, for plaintiff and respondent.

HUNT, Justice.

A jury found defendant, Kathryn Harris, guilty of two counts of felony sexual assault. Defendant appeals. We reverse and remand for a new trial.

We frame the issues as follows:

1. Did the State's expert witness improperly comment on the credibility of an alleged victim who testified at trial?

2. Did the District Court err in allowing the State's expert witness to identify defendant as the perpetrator of the alleged crimes by testifying as to hearsay statements made to her by the alleged victims during the course of therapy?

3. Did the District Court err in granting the jury's request to have the testimony of an alleged victim read to it after the case had been submitted to the jury?

During the fall of 1987, defendant was employed as a full-time babysitter for a three-year-old girl, referred to as "Janey Doe," and a five-year-old boy, referred to as "Robby Roe." Beginning in about mid-September of that year, Janey began complaining that her bottom hurt. On November 18, 1987, she complained of stomach problems. Later that evening, she fell on the stairs, cried and moaned that her vagina hurt. Janey's mother, Mrs. Doe, wondering what sort of fall could hurt her vagina, examined Janey and discovered a thick glob of mucous in the vaginal area. When Mrs. Doe wiped the area with a warm washcloth, Janey cried and screamed in pain. Mrs. Doe then noticed that the lip of Janey's vagina was streaked with blood-like blisters. She also noticed a bruise on Janey's lower right vagina.

The following day, Mrs. Doe took Janey to her pediatrician for an examination. The pediatrician, who was trained in sexual abuse, discovered a bruise outside of Janey's vagina, along with abrasions on the side of the vagina. She labeled the injuries as non-accidental and consistent with sexual abuse.

On November 25, 1987, Janey began therapy sessions with Sandi Burns, a psychotherapist specializing in child sexual abuse. During the course of the sessions, Janey told Burns that defendant had put a stick in her vagina, placed a finger in her vagina and hit her vagina with her hands or a stick. In addition, Janey told Burns that defendant's husband, Eric Harris Cates, stuck his penis in her vagina.

Janey indicated that Robby Roe had also been sexually abused by defendant and her husband. Subsequently, on February 1, 1988, Burns examined Robby. Robby related to Burns stories of sexual abuse by defendant and her husband.

On February 26, 1988, defendant was charged with two counts of felony sexual assault against the minor children in violation of Sec. 45-5-502, MCA. Her husband, Cates, was charged at the same time with one count of sexual intercourse without consent against Janey Doe, or, in the alternative, sexual assault, and one count of felony sexual assault against Robby Roe.

The District Court granted the defendants' motion for separate trials. Cates' trial was held in July, 1988, in the Fourteenth Judicial District Court, Musselshell County, the county in which the offenses occurred. A jury found Cates guilty of one count of sexual intercourse without consent and one count of sexual assault. On appeal, this Court overturned the sexual intercourse without consent conviction, holding that the evidence was insufficient to sustain the conviction. State v. Cates, 241 Mont. 282, 787 P.2d 319 (1990).

Due to the publicity engendered by the Cates trial, defendant Harris was granted a change of venue from Musselshell County to Gallatin County. Prior to trial, defendant filed a motion in limine seeking to exclude hearsay statements made by Janey to any State witness. Defendant also sought to prohibit Sandi Burns, the children's therapist, from testifying that the children were sexually assaulted and that they were truthful, credible and consistent. The motions were denied.

Trial commenced on November 14, 1988. Janey did not testify, having been found incompetent by the District Court prior to the Cates trial. Robby, however, did testify, as did the psychotherapist Burns.

On November 16, 1988, the jury found defendant guilty of two counts of felony sexual assault. Defendant was sentenced to 14 years imprisonment on each count, with seven years suspended, both sentences to run concurrently. This appeal followed.

I.

Did the State's expert witness improperly comment on the credibility of an alleged victim who testified at trial?

At trial, Sandi Burns, the psychotherapist who examined both Janey and Robby, testified that Robby was "a little, honest, open country boy.... [H]e's a pretty trustworthy child.... [He] is very honest." Defendant argues that this testimony constituted an improper comment on Robby's credibility.

The question of the credibility of an alleged victim lies exclusively within the province of the jury. Expert testimony regarding credibility improperly invades the jury's function by placing a stamp of scientific legitimacy on the victim's allegations. Therefore, we generally will not allow an expert witness to comment on the credibility of an alleged victim. State v. Brodniak, 221 Mont. 212, 222, 718 P.2d 322, 329 (1986).

We have carved out one exception to this rule. In cases involving sexual abuse of a minor child, we will allow expert testimony on the credibility of the alleged victim. State v. Geyman, 224 Mont. 194, 200, 729 P.2d 475, 479 (1986). This exception applies, however, only when the victim testifies at trial, State v. J.C.E., 235 Mont. 264, 269, 767 P.2d 309, 312-13 (1988), and credibility is brought into question. See State v. Hall, 797 P.2d 183, 191, 47 St.Rep. 1501, 1510 (Mont.1990).

In the present case, although Robby testified at trial, his credibility was not attacked by defendant. Defendant did not denigrate Robby's credibility in an opening statement or cross-examine him when he took the stand. The only time she touched on the issue of credibility was during the cross examination of Robby's mother when she asked if Robby had at first denied the abuse. The State, however, had opened the door to this line of questioning by bringing the matter up on direct. Because Robby's credibility was not called into question by defendant, the District Court committed reversible error by allowing the psychotherapist to comment directly on his trustworthiness.

II.

Did the District Court err in allowing the State's expert witness to identify defendant as the perpetrator of the alleged crimes by testifying as to hearsay statements made to her by the victims during the course of therapy?

As we noted in J.C.E., 235 Mont. at 267-68, 767 P.2d at 311-12, cases involving sexual abuse of young children raise troubling evidentiary questions. When an alleged victim of abuse is a young child who, in a courtroom setting, may be unable to relate information about the alleged offense, probative evidence may be lost. Out-of-court statements made by the child to others therefore become some of the most valuable evidence available. These statements, however, constitute hearsay, and are normally inadmissible in court.

The courts are thus forced to walk a fine line between following the traditional rules of evidence and excluding what might be the most probative, material evidence of the crime. The dilemma is especially acute when, as in this case, the criminal defendant's Sixth Amendment right of confrontation is implicated by the unavailability of a child declarant.

In addition to posing confrontation problems, another danger involved in allowing hearsay statements, especially when they are admitted through an expert witness such as a counselor or psychologist, is that the expert becomes a surrogate witness for the child. While we recognize that expert testimony regarding the sometimes puzzling and seemingly contradictory behavior of victims of child sexual assault may aid the jury to determine ultimate issues, such as whether the crime actually occurred, we must be careful not to allow the witness to become a conduit for otherwise inadmissible testimony.

In J.C.E., 235 Mont. at 269-70, 767 P.2d at 313, we held that the identification of the perpetrator of a crime is not a proper subject for expert testimony under Rule 702, M.R.Evid., which allows expert testimony if it will "assist the trier of fact to understand the evidence," or Rule 704, M.R.Evid., which allows an expert to render an opinion on an ultimate issue. We noted that an opinion on an ultimate issue may be rendered only if it assists the jury. Whether a child was the victim of sexual abuse is a question that may be clarified by expert testimony. "However, whether the evidence adduced by the State establishes [defendant] as the perpetrator requires only the common logic that is indeed well within the capacity of a lay jury." J.C.E., 235 Mont. at 270, 767 P.2d at 313.

The State argues that the testimony of psychotherapist Sandi Burns may be admitted through Rule 803(4), M.R.Evid., the medical diagnosis and treatment exception to the hearsay rule. This exception provides as follows:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

. . . . .

(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or...