State v. Martell
| Decision Date | 21 December 2021 |
| Docket Number | DA 20-0037 |
| Citation | 500 P.3d 1233,406 Mont. 488 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Dale Steven MARTELL, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana
For Appellee: Austin Knudsen, Montana Attorney General, Michael P. Dougherty, Assistant Attorney General, Helena, Montana, Kirsten H. Pabst, Missoula County Attorney, Matt Jennings, Chief Deputy County Attorney, Missoula, Montana
¶1 Dale Steven Martell appeals a Fourth Judicial District Court judgment on his jury conviction for theft of property exceeding $1,500 in value. Martell argues that the District Court improperly allowed a State witness to appear by two-way video at trial in violation of his constitutional right to confront witnesses. We agree but hold the error to be harmless and thus affirm.
¶3 Before trial, the State moved the District Court to allow Alecia Drevon— Lakefield's Accounts Payable Supervisor—to testify by two-way video. The State argued that video testimony was proper because "the distance and expense to secure a witness from Washington State to provide only a few minutes testimony is unreasonable and impractical[,]" and transporting a witness 481 miles would be "overly burdensome and ... unnecessarily expensive when her testimony is expected to only last several minutes." Martell objected, arguing that the use of video testimony would violate his constitutional right to face-to-face confrontation of testimonial witnesses under Article II, Section 24 of the Montana Constitution. The District Court orally granted the State's motion the morning of trial, explaining that the State had "made a reasonable showing that it's impractical to haul someone 481 miles each direction" for "more or less foundation type testimony."
¶4 Doty testified without objection at trial to the notice she received from the bank that the check was altered or fictitious and to her conversation with Lakefield that the check originally was issued for a different amount, payable to another business.1 She discussed her contact with Martell after learning the check was altered or fictitious and his failure to return the money after promising to do so, despite her continued efforts.
¶5 A bank representative testified to the process the bank used to flag the check as altered or fictitious. Missoula Police Detective Stacey Lear explained her training and experience in investigating fraud and financial crimes and testified to her investigation, including her unsuccessful attempts to make contact with Martell and her conversation with Lakefield.
¶6 Drevon appeared via two-way video. She was sworn in, and the jury and Martell could see and hear her. The State examined her contemporaneously, but Martell declined to cross-examine her. She testified that Lakefield had never done business with Martell and that the check originally was issued to a lawn-care business in January for a different amount.
¶7 After the State rested, Martell moved to dismiss for insufficient evidence, arguing that the State had failed to prove the mental state element. The State disagreed, arguing that Martell's mental state could be inferred from Doty's testimony that she had informed him numerous times that the check was altered or fictitious, and he failed to return the cash after receiving such notice. The District Court agreed with the State, pointing additionally to Drevon's testimony that Martell had no prior relationship with Lakefield.
¶8 During jury deliberations, the jury asked the District Court two questions: "What does exerted unauthorized control over cash mean?" and, "Does [exerting unauthorized control] need to be an initial act?" Regarding the first question, the court instructed the jury to apply the "common English definition" of the words. For the second question, the court answered "Yes" over the State's objection. A unanimous jury found Martell guilty of felony theft, and the District Court sentenced him to three years, all suspended.
¶9 We exercise plenary review of constitutional questions and review a district court's interpretation of the Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution de novo. State v. Mercier , 2021 MT 12, ¶ 11, 403 Mont. 34, 479 P.3d 967 ; State v. Bailey , 2021 MT 157, ¶ 17, 404 Mont. 384, 489 P.3d 889.
¶10 1. Did the District Court violate Martell's right to confront witnesses against him under the United States and Montana Constitutions by allowing a State witness to appear by two-way video at trial?
Constitution grant a defendant the right to face-to-face confrontation of witnesses. U.S. Const. amend. VI (); Mont. Const. art. II, § 24 (). The Confrontation Clause "guarantees [a defendant's] right to fully cross-examine testimonial witnesses." Bailey , ¶ 41 (citing State v. Stock , 2011 MT 131, ¶ 29, 361 Mont. 1, 256 P.3d 899 ). "Cross-examination is an essential function in our justice system because it assists in the production of truth; confrontation ‘ensur[es] that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings.’ " Bailey , ¶ 41 ().
¶12 Under Montana's Confrontation Clause, a witness may testify by two-way video only upon "an adequate showing on the record that the personal presence of the witness is impossible or impracticable to secure due to considerations of distance or expense." Bailey , ¶ 42 (quoting City of Missoula v. Duane , 2015 MT 232, ¶ 25, 380 Mont. 290, 355 P.3d 729 ). The State must demonstrate that "dispensing with literal face-to-face confrontation" is "necessary to further an important public policy." Bailey , ¶ 42 (internal quotations omitted). As we held in both Mercier and Bailey , judicial economy, added expense, or inconvenience alone are not important public policies sufficient to preclude the constitutional right of a defendant to face-to-face confrontation at trial. Mercier , ¶ 26 ; Bailey , ¶ 45.
¶13 In granting the State's motion to allow Drevon to testify by video, the District Court explained:
I think that the State has made a reasonable showing that it's impractical to haul somebody 481 miles each direction to talk about whether or not this is a legitimate check written on their account or not. And it's more or less foundation type testimony. It's minor. I just think it's an appropriate place to use this kind of testimony.
¶14 Martell argues that the State failed to sufficiently establish that the use of video testimony was necessary to further an important public policy. He asserts that the District Court's reasoning for granting the State's motion was flawed because the court did not make a case-specific finding demonstrating the actual necessity of using video testimony for the witness.
¶15 The State concedes that the District Court erred by allowing Drevon to testify by video but argues that the error was harmless. The Confrontation Clause applies to Drevon's testimony despite the District Court's characterization of the testimony as "more or less" foundational. Mercier , ¶ 27. The State therefore was required to show that allowing Drevon to testify by video furthered an important public policy apart from judicial economy. See Mercier , ¶¶ 20, 26 ; Bailey , ¶ 45. The circumstances are indistinguishable from Mercier , where the State moved the district court to allow a witness to testify by video because travel expenses were "impractical," and from Bailey , where the witness "would be required to spend the entire [workday] traveling" in order to testify in person. See Mercier , ¶ 7 ; Bailey , ¶ 43. The State here asserted only that the "distance was overly burdensome" and that "travel is unnecessarily expensive." The District Court's finding that travel would be "impractical" was insufficient to demonstrate the necessity of video testimony that our recent holdings require. Because the District Court made no case-specific finding establishing an important...
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