State v. Mayes

• Decision Date: 28 January 1992
• Docket Number: No. 90-509,90-509
• Citation: 251 Mont. 358,825 P.2d 1196
• Parties: STATE of Montana, Plaintiff and Respondent, v. Malcolm E. MAYES, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1196

825 P.2d 1196

251 Mont. 358

STATE of Montana, Plaintiff and Respondent, v. Malcolm E. MAYES, Defendant and Appellant.

No. 90-509.

Supreme Court of Montana.

Submitted on Briefs Aug. 15, 1991.

Decided Jan. 28, 1992.

Michael J. Lilly, Berg, Lilly, Andriolo, Tollefsen, and Schraudner, Bozeman, for defendant and appellant.

Marc Racicot, Atty. Gen., Deanne L.

Sandholm, Asst. Atty. Gen., Helena, Mike Salvagni, County Atty., Jennifer Bordy, Deputy County Atty., Bozeman, for plaintiff and respondent.

WEBER, Justice.

Malcolm E. Mayes appeals from a jury verdict finding him guilty of incest, a felony, in violation of Sec. 45-5-507, MCA. The District Court of the Eighteenth Judicial District, Gallatin County, sentenced Mayes to a term of twenty (20) years with ten (10) years suspended. We reverse and remand for new trial.

The issues are:

1) Did the District Court err in admitting hearsay evidence of the children's statements to social worker Joyce Panzer and criminal analyst Lisa Berens?

2) Did the District Court err in admitting posed photographs of the alleged victims?

3) Did the District Court err in granting the State's motion in limine and prohibiting the defendant from cross-examining Leah Lippert about allegations made against her husband for child molestation?

4) Did the District Court err in allowing the jury to listen to the tape recordings of the entire testimony of witnesses Joyce Panzer and Lisa Berens?

5) Did the District Court err in denying Mayes' motion to suppress evidence of his admission of inappropriately touching his daughter approximately one year earlier while living in the State of Washington?

Defendant, Malcolm Mayes, was married. He had three children, including Crystal and Janie who are the complaining witnesses in this case. In December 1989, Crystal was 5 years of age and Janie was 3. In June of 1989, Mayes' wife suffered a nervous breakdown and as a result she was hospitalized in a mental hospital in the State of Washington. Despite the fact that he quit his job to remain home with his children, Mayes testified he found it nearly impossible to provide his children with adequate care. He therefore decided in December to leave Washington and to return to his home state of New York, where he had family who could help raise his children.

While traveling to New York, Mayes stopped in Bozeman, Montana to spend the night at the Alpine Motel. Originally he only planned to stay in Bozeman one night. However, his car froze up during a period of extremely cold weather and he was required to stay an extra night while a mechanic worked on its engine.

While he was staying at the Alpine Motel, a maid named Leah Lippert came to Mayes' room to ask him to turn his water on so that the pipes would not freeze. According to her testimony, she did not believe that the room was occupied that night and consequently she opened the door without knocking. Ms. Lippert testified that when she entered the room, she saw Mayes laying naked on top of a little girl, also naked. She testified that he was forcing himself between her legs. She testified that there was a cloth over the child's mouth. She further testified that Mayes rolled on to his side and yelled at her to "get the hell out". At that time she noticed that Mayes had an erection.

Ms. Lippert testified that she immediately closed the door and left. After witnessing this scene, Ms. Lippert continued with her duties and went to the other rooms to tell the guests to turn their water on. When she completed her rounds she returned to the office and according to her testimony, told her boss, Carolyn Anderson, about what she had seen. She testified that her boss told her not to get involved and that Ms. Anderson threatened to fire her if she called the police. Ms. Lippert testified that she told a friend about what happened and the friend called the police.

Carolyn Anderson denied that Leah Lippert told her about the incident and was vehement in her denial that she threatened to fire her. Ms. Lippert was fired shortly after her boss was served with a subpoena. However, Carolyn Anderson testified that this was not the reason she fired Ms. Lippert.

The next day, after obtaining his car from the mechanic, Mayes and his children continued their journey. Meanwhile, back in Bozeman, the police received an anonymous phone call from a person who reported the incident of sexual abuse.

Leah Lippert testified that after Mayes left she was cleaning his room and found used condoms and "white sticky stuff on the pillowcases". She testified that Carolyn Anderson washed the pillowcases and that she threw the condoms away herself because she "didn't know whether they were important or not" for evidence in the case because she had "never turned anybody in like this" and had "never been in court before".

Mayes was stopped by police in Kadoka, South Dakota at 9:30 a.m. on December 13, 1989. He was taken to the sheriff's department where he was interviewed about the alleged incident. He completely denied that the event occurred. He was in custody for several hours. He voluntarily submitted to a lie detector test. After being told that he flunked the test, he confessed that he inappropriately touched his daughter while in the State of Washington, approximately one year earlier. He was subsequently placed under arrest and transported to Bozeman to stand trial.

Mayes' trial began on March 29, 1990. On March 31, 1990, the jury advised the District Court that it could not reach a unanimous verdict. As a result, the court declared a mistrial. Mayes' second trial began on June 25, 1990. At its conclusion, the jury returned a verdict of guilty. This appeal followed.

I

Did the District Court err in admitting hearsay evidence of the children's statements to social worker Joyce Panzer and criminal analyst Lisa Berens?

Mayes was separated from his children after he was stopped by South Dakota police. The children were taken by social worker Joyce Panzer and criminal analyst Lisa Berens. While in their custody, the children were bathed and were given physical examinations to check for signs of sexual abuse. These examinations revealed no physical evidence of sexual trauma. In addition, the children's clothing was taken as evidence. Subsequent testing by the Montana State Crime Lab revealed no signs of semen.

In separate interviews, Panzer and Berens jointly interviewed both Crystal and Janie. Both interviews included the use of anatomically correct dolls and pictures in an effort to determine whether the children had been sexually abused. The interviews with the children were not audio taped nor were they video taped.

The testimony of Panzer and Berens established that during her interview, Crystal spontaneously placed male and female anatomically correct dolls in a position of sexual intercourse and stated that they were "doing sex." In response to questioning by Berens and Panzer, she indicated that her father touched her in the vaginal area by placing a mark on an anatomically correct drawing. She also described a penis as being hard rather than soft and having white stuff coming out of it that shoots up high. She said it tasted like "pancake surup". (sic). Both Panzer and Berens testified that Crystal was hesitant in talking about herself. However, in response to further questioning, Crystal indicated that her father had sex with Janie in a motel room where Janie had a towel over her face.

Janie was interviewed next. The testimony of Panzer and Berens established that during her interview Janie indicated, through the use of anatomically correct drawings that her father touched her in the vaginal area. She described the penis as a "wee-wee" and said her and her daddy did "exercises" together when they were both naked. Janie also indicated that the penis was hard rather than soft and "stuff came out" of it. The testimony of Panzer and Berens did not establish when the above described incidents occurred.

Before trial the State filed a notice of its intention to introduce child hearsay evidence. Following a hearing the District Court determined that neither Crystal nor Janie were competent to testify. Subsequently, it entered an order allowing the State to introduce hearsay testimony of the children's statements to Joyce Panzer and Lisa Berens. However, it did not allow Laura Nelson, a social worker from the State of Washington, to testify because it found that her interview with the children occurred too long before the incident in Bozeman. As previously stated, both Panzer and Berens testified and repeated statements made by the two children during their interviews in South Dakota.

Rule 804(b)(5), M.R.Evid., provides an exception to the hearsay rule for statements not specifically covered by any of the exceptions enumerated in 804(b)(1) through 804(b)(4), but having "comparable circumstantial guarantees of trustworthiness". Rule 804(b)(5) has been characterized as a "catchall exception" to the hearsay rule. However, it is distinguished from Rule 803(24), M.R.Evid., where the availability of the declarant to testify is immaterial, in that Rule 804(b)(5) comes into play when the declarant is unavailable to testify. Such is the present case.

We will analyze the admission of this hearsay evidence under the child hearsay guidelines set forth in State v. J.C.E. (1989), 235 Mont. 264, 273, 767 P.2d 309, 315. In addition we will analyze the admission under the recent United States Supreme Court case of Idaho v. Wright (1990), --- U.S. ----, 110 S.Ct. 3139, 111 L.Ed.2d 638. In Idaho v. Wright the victim in an incest case testified and the United States Supreme Court held that incriminating statements admissible under an exception to the hearsay rule were not admissible under the Confrontation Clause unless the prosecution demonstrates the unavailability of the declarant, and unless the statement bears adequate indicia of reliability- --a showing of...