State v. Mathis, DA 20-0409

Docket NºDA 20-0409
Citation2022 MT 156
Case DateAugust 09, 2022
CourtUnited States State Supreme Court of Montana

2022 MT 156

STATE OF MONTANA, Plaintiff and Appellee,
v.

HOLLY ANNE MATHIS, a/k/a HOLLY ANNE NORLING, Defendant and Appellant.

No. DA 20-0409

Supreme Court of Montana

August 9, 2022


Submitted on Briefs: June 15, 2022

APPEAL FROM: District Court of the Tenth Judicial District, In and For the County of Fergus, Cause No. DC 18-56 Honorable Robert G. Olson, Presiding Judge

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

Kent M. Sipe, Fergus County Attorney, Jean Adams, Deputy County Attorney, Lewistown, Montana

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OPINION

Laurie McKinnon Justice

¶1 Appellant Holly Mathis (Mathis) was convicted of incest by a jury in the Tenth Judicial District Court, Fergus County. Mathis presents the following issues for review:

1. Whether the District Court correctly denied Mathis's motion to interview T.N. and J.M.?

2. Whether the State's failure to lodge with the District Court forensic interviews from a different case violated Mathis's right to a fair trial?

3. Whether this Court should exercise plain error review to consider if the District Court should have given a specific unanimity instruction?

¶2 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

a. Disclosures of Abuse

¶3 In 2016, Mathis married Timothy Norling Sr. (Norling). Mathis had two daughters from a prior marriage-an eleven-year-old daughter, N.M., and a seven-year-old daughter, J.M. Norling had one son from a previous marriage, T.N., who was nine years old. Following their marriage, Mathis and Norling lived with their three children in Lewistown for the next two years.

¶4 On March 29, 2018, N.M. disclosed to a counselor at her school that Norling had sexually abused her. In forensic interviews conducted that same day, N.M. and J.M. revealed they had been sexually abused by Norling while in the family's home in Lewistown. On April 4, 2018, a forensic interview was also conducted of T.N. in connection with Norling's case. The April 2018 interview with T.N. was never made available in Mathis's case. The State has asserted on multiple occasions that, during this

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April 2018 interview, T.N. "did not make any disclosures about abuse to himself, [N.M.], or [J.M.]" by either Norling or Mathis. On April 25, 2018, Norling was charged with two counts of incest. He eventually pleaded guilty and was sentenced to prison. Mathis finalized her divorce from Norling on June 26, 2018.

¶5 In the months following their stepfather's arrest, both N.M. and J.M. began to see licensed clinical professional counselors to discuss the trauma that resulted from their abuse by Norling. During a counseling session with J.M. on July 16, 2018, J.M. disclosed to her counselor that her mother, Mathis, had sexually abused T.N. by asking T.N. to touch her breasts. The counselor reported J.M.'s allegation against Mathis to law enforcement,[1]and the State obtained an investigative subpoena of the counselor's records.

¶6 Following J.M.'s disclosure, T.N. was interviewed on July 26, 2018. During this interview, T.N. disclosed that Mathis would frequently walk around the house half-naked. He also recounted two specific instances where Mathis had sat in front of him while topless and encouraged him to touch her bare breasts, which he then did. According to T.N.'s disclosure, the first instance of abuse occurred when he was ten years old, while the second instance occurred more recently when he was eleven years old. Based on T.N.'s allegations, the State charged Mathis on August 24, 2018, with two counts of incest. Count I charged Mathis with incest between December 2016 and December 2017, the twelve-month-period during which T.N. was ten years old. Count II charged Mathis with

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incest between December 2017 and March 2018, which reflected the three-month-period prior to T.N.'s removal from Mathis and Norling's home. The record reflects that the entire July 2018 forensic interview of T.N. was provided to the defense during discovery.

b. Pretrial &Discovery Stage

¶7 On December 21, 2018, Mathis filed a motion to obtain confidential criminal justice information (CCJI) from Norling's criminal case. Her motion requested all information "associated with State of Montana v. Timothy E. Norling . . . including, but not limited to, police reports, notes, investigations, medical records and reports, and forensic interviews and other information relating to [the] child victims in [Norling's] case." Additionally, Mathis requested all of J.M., N.M., and T.N.'s "psychological and counseling records" and "school records," maintaining this information was relevant and potentially exculpatory.

¶8 On January 11, 2019, the State filed an objection to producing the March 2018 forensic interviews of N.M. and J.M.-as well as the April 2018 forensic interview of T.N.-that were conducted pursuant to the State's investigation of Norling. The State maintained the interviews were confidential and not relevant because they pertained only to Norling's charges. However, while noting it did not share this position, the State's response conceded that "an argument could be made that the [April 2018] forensic interview of [T.N.] . . . is 'exculpatory,' as [T.N.] d[id] not disclose any sexual abuse" by Mathis during that interview. As a result, the State offered to lodge the interview with the court for in camera review. The State also objected to Mathis's request for N.M., J.M., and T.N.'s psychological and counseling records, asserting the information was confidential

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and that Mathis's request was overly broad. In particular, the State asserted that, for confidential information that is "not exculpatory or necessary for the preparation of [a] defense," a defendant's "right to review the medical and psychological records of the victim in an incest case is outweighed by [a] child's right to confidentiality." State v. Duffy, 2000 MT 186, ¶ 21, 300 Mont. 381, 6 P.3d 453 (citations omitted). The State also noted that the only counseling records in its possession were J.M.'s July 2018 counseling records disclosing Mathis's abuse, which it offered to lodge with the court for in camera review.

¶9 On March 7, 2019, the District Court issued an Order (March 2019 Order) providing that it would conduct a review of the "psychological, counseling, and school records" of "all three victims in chambers to ensure that no exculpatory [evidence] exists therein." The Order provided that the State was to lodge J.M.'s counseling records from July 2018 with the court, as the State had indicated that these records were already in its possession. However, the Order also provided that it was Mathis's responsibility to separately motion for a subpoena duces tecum under § 46-15-106, MCA, to obtain "all other psychological, counseling[,] and school records" that were not in the State's possession. Importantly, the March 2019 Order did not address the three forensic interviews that were conducted with N.M. in March 2018, J.M. in March 2018, and T.N. in April 2018 in connection with Norling's criminal case. Instead, when addressing Mathis's request for CCJI from Norling's case, the Order only directed the State to submit all "potentially exculpatory" evidence in its possession to the court for in camera review. The March 2019 Order made no mention of any need for the State to lodge T.N.'s April 2018 forensic interview with the

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court. The March 2019 Order's only reference to the April 2018 forensic interview with T.N. is made at the beginning of the Order, while the court is reciting the facts of the case; notably, this reference states only that the April 2018 interview occurred and that "[d]uring the course of that interview, [T.N.] did not make any disclosures about any abuse to himself, to [N.M.], or to [J.M.]." Accordingly, following the March 2019 Order, the State lodged only J.M.'s July 2018 counseling records with the court. It did not lodge any of the three forensic interviews of N.M., J.M., and T.N. Notably, Mathis did not-at any point during proceedings before the District Court-raise an objection to the State's failure to lodge these forensic interviews with the Court based on the instructions provided to the State in the court's March 2019 Order. Next, after reviewing only J.M.'s July 2018 counseling records in camera, the court ordered the State to provide the full contents of these records to Mathis, and the State complied.

¶10 On June 28, 2019, Mathis filed a motion asking the court to issue a subpoena duces tecum commanding the Department of Public Health and Human Services (DPHHS) to provide the following documents to the court for in camera review:

All records, notes, reports, information[,] and recordings relating to interviews and investigations of allegations involving [Norling] and [Mathis] . . . for the time period of January 1st through August 30th, 2018, including[,] but not limited to, notes and recordings of interviews with the three children involved in the relationship between [Norling] and [Mathis] during the time period in question regarding alleged child sexual abuse by [Mathis].

On July 16, 2019, the court issued an Order which granted Mathis's subpoena, adopted the above language verbatim to articulate the scope of the subpoena, and ordered the Child and

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Family Services Division (CFS) to lodge this evidence with the court (July 2019 Order). In its effort to comply with the July 2019 Order, CFS mailed the court a physical case file which the court noted contained "151 pages of information." After completing its review of the CFS file, the court issued its August 9, 2019 Order holding that the entire file should be provided to Mathis (August 2019 Order). The August 2019 Order reasoned that "[t]here is information contained...

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