State v. Mercier

• Decision Date: 26 January 2021
• Docket Number: DA 18-0006
• Citation: 2021 MT 12,479 P.3d 967,403 Mont. 34
• Parties: STATE of Montana, Plaintiff and Appellee, v. Trevor Joseph MERCIER, Defendant and Appellant.
• Court: Montana Supreme Court

403 Mont. 34

479 P.3d 967

2021 MT 12

STATE of Montana, Plaintiff and Appellee,

v.Trevor Joseph MERCIER, Defendant and Appellant.

DA 18-0006

Supreme Court of Montana.

Argued and Submitted: October 14, 2020

Decided: January 26, 2021

For Appellant: Chad Wright, Appellate Defender, Koan Mercer (argued), Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana, Attorney General, Michael P. Dougherty (argued), Assistant Attorney General, Rob Cameron, Deputy Attorney General, Helena, Montana

Marcia Jean Boris, Lincoln County Attorney, Libby, Montana

Justice Jim Rice delivered the Opinion of the Court.

¶1 Trevor Joseph Mercier appeals his convictions after jury trial in the Nineteenth Judicial District Court, Lincoln County, of Deliberate Homicide and Tampering with Physical Evidence. We affirm in part and reverse in part, stating the issues as follows:

1. Was Mercier denied his right under the United States and Montana Constitutions to confront witnesses against him when the State presented a foundational witness in real time by two-way videoconference?

2. If so, did the State meet its burden to demonstrate the error was harmless as to the Deliberate Homicide conviction and the Tampering with Physical Evidence conviction?

3. Did the prosecutor commit plain error during the closing argument?

We conclude Mercier's right of confrontation was violated, requiring reversal of his conviction of Tampering with Physical Evidence. We affirm his Deliberate Homicide conviction.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Mercier and Sheena Devine were in a relationship that ended in early 2016. On the evening of October 5, 2016, an intoxicated Mercier went to Sheena's residence and began to pelt her vehicle with rocks. At 9:42 p.m., neighbors placed a 911 call to report the vandalism. A sheriff's deputy was dispatched to the scene, but Mercier had fled prior to his arrival. The deputy spoke with Sheena and advised her to report any further disturbances to authorities.

¶3 Sometime between 10 p.m. and 11 p.m., Mercier returned to Sheena's residence and again threw rocks at her vehicle. Instead of contacting police, Sheena went outside and confronted Mercier. According to Mercier, Sheena physically attacked him, striking and scratching his face and head. Mercier contended he placed Sheena in a "sleeper hold" to thwart her attack, resulting in Sheena losing consciousness. According to Mercier, he carried Sheena into her living room and laid her down, and, after checking that she was still breathing, left within five to ten minutes. Mercier stated Sheena was breathing and snoring when he left.

¶4 At approximately 10 o'clock the next morning, October 6, Lincoln County Sheriff's dispatch received a call requesting medical assistance for a possible assault. The call was placed by Sheena's friend and neighbor who had stopped by Sheena's residence. An emergency medical technician arrived first and determined that Sheena had died. The EMT immediately contacted dispatch requesting expedited law enforcement support, and Officer Scott Kessel quickly proceeded to the scene. Kessel found the EMT, the friend who had placed the 911 call, and Sheena's two young daughters, along with her body, which was lying on the floor between a couch and rocking chair. Sheena's two-year-old daughter was sitting atop her discolored body, and her four-year-old daughter paced aimlessly. Sheena had sustained physical injuries, with heavy bruising above her right eye and large abrasions to her chin

and right cheek. Police discovered Sheena's cellphone submerged in a pot of greasy water in the kitchen sink.¹

¶5 Mercier was taken into custody and interviewed, after which he was charged with three criminal offenses: Criminal Mischief for damaging Sheena's car by throwing rocks, Deliberate Homicide, and Tampering with Physical Evidence related to Sheena's submerged phone. Mercier pled guilty to Criminal Mischief, but not guilty to the other two counts. Mercier would defend by claiming Sheena's death was accidental and that he had not handled her phone.

¶6 Investigators removed Sheena's phone from the greasy water and found, somewhat remarkably, that it remained operational. However, local technicians struggled to retrieve information from the device, and it was delivered to Special Agent Brent Johnsrud of the Department of Homeland Security, Greeley, Colorado, who specialized in extracting data from electronics. Johnsrud was able to extract and analyze the phone's data, and prepared a written report of his findings.

¶7 Prior to trial, the State moved for leave to call Johnsrud to testify from Colorado by live two-way video. As grounds, the State offered that the $670 for roundtrip air travel and other travel expenses for purely foundational testimony was impractical. Mercier's objection was overruled by the District Court, and Johnsrud testified via two-way videoconferencing. Johnsrud's testimony addressed the methods and equipment employed to retrieve the data from the cellphone, among other foundational purposes. He testified that in order to extract data from mobile devices, a forensic examiner must "at least be able to power on the device," and that "the raw data extraction" he had completed and provided to Agent Kevin McCarvel of the Montana Department of Justice was "an exact copy of what was contained on the device." Then, Agent McCarvel testified regarding Johnsrud's report of the phone's contents, particularly, two time-stamped photographs retrieved from the phone.

¶8 Mercier asked the jury, consistent with his version of incident, to find him guilty of Negligent Homicide rather than Deliberate Homicide. To counter this position, the State presented a neighbor who testified to seeing Mercier inside Sheena's residence around midnight. Although the medical examiner was unable to determine a specific time of death, this evidence indicated that Mercier was still in the house one hour after the physical altercation, contrary to Mercier's account. The State also offered two photographs from Sheena's phone, one of which was solid black, and the other a blurry image of Sheena's kitchen. The photographs were timestamped at 12:00:20 a.m. and 12:00:21 a.m. The angle at which the kitchen photograph was taken made it improbable that it was taken by Sheena's daughters. The photographs were the only evidence offered that Mercier had handled the phone that evening.

¶9 During closing argument, defense counsel, in an apparent attempt to reconcile errors and omissions in Mercier's recollection of events, repeatedly compared Mercier's "mistake" in his initial account to law enforcement to "forgetting the eggs" during a trip to the grocery store. Possibly confused by the analogy, but in light of Mercier's position that he should be found guilty of only Negligent Homicide, prosecutors inferred from this argument that the "mistake" alluded to by defense counsel was the "mistake" of killing Sheena. Defense counsel also employed another grocery parallelism, comparing Mercier's lifting of Sheena's unconscious body to "wrap[ping] your arm around essentially what is going to be a very large amount, something similar to almost three bags of potatoes, if not more." In response, the prosecutor stated in rebuttal that "Sheena Devine's life was worth more than eggs on a grocery list and three bags of potatoes. And you should be appalled that the value of her life apparently escapes [defense counsel], just as the value of her life to her children and her family was disregarded by Trevor Mercier on the night of October fifth." Mercier did not object to these comments.

¶10 Mercier was convicted of the Deliberate Homicide and Tampering with Physical Evidence charges, and appeals.

STANDARD OF REVIEW

¶11 This Court exercises plenary review of constitutional questions and applies de novo review to a district court's constitutional interpretations of the Sixth Amendment of the United States Constitution and Article II, Section 24 of the Montana Constitution. State v. Stock , 2011 MT 131, ¶ 16, 361 Mont. 1, 256 P.3d 899 (citing State v. Norquay , 2011 MT 34, ¶ 13, 359 Mont. 257, 248 P.3d 817 ).

¶12 All other legal conclusions of law are evaluated for correctness subject to de novo review. City of Missoula v. Duane , 2015 MT 232, ¶ 10, 380 Mont. 290, 355 P.3d 729. Evidentiary rulings are reviewed for an abuse of discretion. Duane , ¶ 10. Abuse of discretion occurs if the district court acted arbitrarily and without the employment of conscientious judgment or in a manner that exceeds the bounds of reason, resulting in substantial injustice. Stock , ¶ 17 (citing State v. Mackrill , 2008 MT 297, ¶ 37, 345 Mont. 469, 191 P.3d 451 ).

¶13 We generally do not address " ‘prosecutorial misconduct pertaining to a prosecutor's statements not objected to at trial.’ " State v. Aker , 2013 MT 253, ¶ 21, 371 Mont. 491, 310 P.3d 506 (quoting State v. Longfellow , 2008 MT 343, ¶ 24, 346 Mont. 286, 194 P.3d 694 ). However, we may review such issues under the plain error doctrine. State v. Lehrkamp , 2017 MT 203, ¶ 11, 388 Mont. 295, 400 P.3d 697 (citing State v. Walton , 2014 MT 41, ¶ 10, 374 Mont. 38, 318 P.3d 1024 ).

DISCUSSION

¶14 1. Was Mercier denied his right under the United States and Montana Constitutions to confront witnesses against him when the State presented a foundational witness in real time by two-way videoconference?

¶15 The Confrontation Clause of the Sixth Amendment of the United States Constitution

provides that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. The Montana Constitution provides that "[i]n all criminal prosecutions the accused shall have the right ... to meet the witnesses against him face to face[.]" Mont. Const. art. II, § 24.

¶16 In its earliest case interpreting the Clause, the Supreme Court explained:

The primary object of the constitutional provision in question was to prevent

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