State v. J.C.E., 87-535

• Decision Date: 07 February 1989
• Docket Number: No. 87-535,87-535
• Citation: 235 Mont. 264,45 St.Rep. 2373,767 P.2d 309
• Parties: STATE of Montana, Plaintiff and Appellant, v. J.C.E., Defendant and Respondent.
• Court: Montana Supreme Court

Page 309

767 P.2d 309

235 Mont. 264

STATE of Montana, Plaintiff and Appellant, v. J.C.E., Defendant and Respondent.

No. 87-535.

Supreme Court of Montana.

Submitted Nov. 3, 1988.

Decided Dec. 30, 1988.

Rehearing Denied Feb. 7, 1989.

Mike Greely, Atty. Gen., Dorothy McCarter, argued, Asst. Atty. Gen., Mike McGrath, County Atty., Carolyn A. Clemens, argued, Deputy County Atty., Helena, for plaintiff and appellant.

Gregory Jackson, argued, Helena, for defendant and respondent.

McDONOUGH, Justice.

This appeal involves the admissibility of hearsay testimony regarding statements made by a child who allegedly is the victim of incest. In order to protect the child, and because the case is still in its preliminary stages, the individuals involved will be referred to by their initials. The State of Montana brings an interlocutory appeal from the order of the District Court of the First Judicial District, Lewis and Clark County, excluding testimony by a social worker and a counselor concerning S, the four-year-old daughter of the defendant. We affirm, and remand for further action.

The State frames a single issue on appeal: Did the District Court err in refusing to allow into evidence out-of-court statements made by the victim to her counselor, Margaret Stuart, and to social worker Rita Pickering?

The facts of this case are highly contested. Because the case has not reached the trial stage, the record does not yet allow for clear distinctions between allegations by the respective parties and provable fact. However, a chronology of relevant events is as follows.

S lives in Helena with her mother. The mother and J.C.E. are divorced, and custody of S has been disputed. In March of 1987, S was in Butte visiting J.C.E. She developed "spots," which prompted J.C.E. to take her to a doctor. She was diagnosed as having chicken pox and impetigo, and put on medication. The doctor described the location of the impetigo as the "right groin."

On March 30, 1987, approximately ten days after S saw the doctor in Butte, she returned to Helena. Her mother took her to see her local physician, Dr. R.E. Kechely. At Dr. Kechely's office, S removed her panties so the doctor could examine the impetigo. S's mother noticed what appeared to be blood in the panties, and told Dr. Kechely this when he entered the examination room. He indicated initially that some of S's chicken pox may have become irritated and therefore bloody. He then performed his examination.

Dr. Kechely's record of S's visit contains the following notation:

Examination showing a diffuse perineal [groin area] redness, and irritation almost to an abrasion point hymenal opening appearing intact. In discussing this with [S] she related a history of "Daddy puts his fingers in me."

After the examination, Dr. Kechely reported S's case to the Lewis and Clark County Human Services authorities and referred her to a gynecologist. A gynecological examination was performed later that day.

The next day, March 31, Rita Pickering of the Department of Family Services conducted a videotaped interview with S. During the interview, Pickering asked S whether J.C.E. had touched her genitals. Pickering obtained some responses from S indicating that J.C.E. had indeed touched her, and some responses denying any touching. In April of 1987, S began a series of counseling sessions with counselor Margaret Stuart.

On May 6, 1987, J.C.E. was charged by information with felony sexual assault. The information was amended approximately two months later to charge J.C.E. with incest as defined at Sec. 45-5-507, MCA. On October 28, 1987, a hearing was held to videotape S's testimony for trial and to determine if she was competent to testify at trial. After the State finished its examination of S, counsel for J.C.E. moved to have S's testimony stricken on the ground that she was not competent to testify. The court agreed and granted the motion. The competency ruling has not been appealed.

The State's list of proposed witnesses included Dr. Kechely, Rita Pickering and Margaret Stuart, all of whom would testify regarding S's out-of-court statements about the alleged incest. Counsel for J.C.E. moved in limine to have the testimony of these witnesses excluded as inadmissible hearsay under Rule 802, M.R.Evid. The court denied the motion as to Kechely, but granted it as to Pickering and Stuart. The State appeals from that ruling.

The issue presented here goes to a very important and troubling consideration in the trial of alleged perpetrators of incest or other sexual abuse. The nature of these offenses poses evidentiary problems. Often, the only witnesses are the perpetrator and the victim. The victim of incest or abuse is often very young. The inability of a very young child to recall or relate information about the alleged offense accurately and consistently can result, as it has here, in the child being deemed incompetent as a witness.

If the child is found incompetent to testify, out-of-court statements made to relatives medical personnel or social services personnel may become an important source of probative evidence. However, this is hearsay; the child cannot be cross-examined as to the truth of the statements. The absence of opportunity for cross-examination also raises possible problems regarding the Sixth Amendment to the United States Constitution and Sec. 24, Art. II of the Montana Constitution. The defendant loses the opportunity to confront a witness against him. The exceptions to the general rule against hearsay testimony have been developed as "substitutes" for the safeguards provided by cross-examination.

Traditional hearsay exceptions do not always fit well in cases where the hearsay declarant is a child victim of incest or abuse. Valuable evidence may be excluded by hearsay strictures designed to protect against problems that may not exist with a child declarant. At the same time, the emotionally charged atmosphere of the case and the fact that the alleged perpetrator may be a parent might color the child's statements and the witnesses' perception of them. See, e.g., Comment, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases (1983), 83 Colum.L.Rev. 1745.

These factors have led us to analyze this case with special care. Rita Pickering and Margaret Stuart were told and shown things by S that could be claimed to be probative as to J.C.E.'s guilt or innocence. However, given J.C.E.'s inability to cross-examine S in court, the proffered testimony must be examined closely for the reliability that would make it admissible hearsay.

The State argued to the District Court that several hearsay exceptions applied to the testimony of Pickering and Stuart, and renews those arguments on appeal. The State asserts that the testimony of both witnesses is admissible under the so-called "residual" hearsay exceptions found in Rules 803(24) and 804(b)(5), M.R.Evid. In the case of Ms. Stuart, the State further argues for application of the exceptions found in Rule 702, M.R.Evid. (expert testimony), and Rule 803(4), M.R.Evid. (statements made for purposes of medical diagnosis and treatment).

I. Expert Testimony

Rule 702

Expert testimony involves a witness rendering an opinion using their superior knowledge of a subject not commonly understood by lay persons. The hearsay exception for expert testimony is found in Rule 702, M.R.Evid., and reads as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Whether a witness is qualified as an expert is largely within the discretion of the trial judge, who has wide latitude in determining the admissibility of proffered expert testimony. State v. Eiler (Mont.1988), 762 P.2d 210, 218-19, 45 St.Rep. 1710, 1721.

According to the State's offer of proof to the District Court, Stuart would testify on four main points: (1) S has told her that incidents similar to the one alleged happen frequently with her father; (2) S can differentiate truth from fiction and has a good grasp of reality; (3) S shows no confusion about who assaulted her and (4) Stuart believes that S is telling a reliable, credible story. The State cited State v. Geyman (Mont.1986), 729 P.2d 475, 43 St.Rep. 2125, to support its position. The District Court was correct in excluding this proffered expert testimony for two reasons.

First, the Geyman case dealt with the testimony of a clinical psychologist in a sexual assault case where the alleged victim had testified. This Court held such expert testimony admissible to assist the jury in assessing the credibility of the child's testimony. The District Court found Geyman inapplicable because S was not going to testify, and her credibility as a witness therefore would not be an issue.

This Court has previously held that as a general rule, testimony by an expert evaluating the credibility of a witness is inadmissible. State v. Brodniak (Mont.1986), 718 P.2d 322, 43 St.Rep. 755. In Geyman, we adopted an exception to that rule for cases where the witness is a child victim of sexual assault. Geyman, 729 P.2d at 579; see, State v. French (Mont.1988), 760 P.2d 86, 45 St.Rep. 1557. The State's offer of proof indicated that Stuart would testify as to the credibility of S's statements. This would be improper under the general rule, and the exception established in Geyman does not apply because S will not testify.

Second, the State's offer of proof indicates that Stuart would identify the defendant as the perpetrator of the incest. Rule 702, M.R.Evid., states, "If ... specialized knowledge will assist the trier of fact to understand the evidence...." While Rule 704, M.R.Evid., allows an expert witness to render an opinion on the ultimate issue in a case, that opinion is for the...