State v. Osborne

• Citation: 1999 MT 149,982 P.2d 1045
• Decision Date: 29 June 1999
• Docket Number: No. 97-534.,97-534.
• Parties: STATE of Montana, Plaintiff and Respondent, v. James Christopher OSBORNE, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

982 P.2d 1045

1999 MT 149

STATE of Montana, Plaintiff and Respondent, v. James Christopher OSBORNE, Defendant and Appellant.

No. 97-534.

Supreme Court of Montana.

Submitted on Briefs November 19, 1998.

Decided June 29, 1999.

Carl White, Attorney at Law; Havre, Montana, for Appellant.

Hon. Joseph P. Mazurek, Attorney General; Mark W. Mattioli, Assistant Attorney General; Helena, Montana, Allin Cheetham, Chouteau County Attorney; Fort Benton, Montana, for Respondent.

Justice TERRY N. TRIEWEILER delivered the opinion of the Court.

¶ 1 By information filed in the District Court for the Twelfth Judicial District in Choteau County, the defendant, James Christopher Osborne was charged with sexual intercourse without consent, a violation of § 45-5-503(3)(a), MCA. Following trial by jury, Osborne was convicted. He appeals from this conviction. We affirm the judgment of the District Court.

¶ 2 The issues presented are:

¶ 3 1. Did the District Court err when it denied Osborne's motion to exclude the victim's out-of-court statements?

¶ 4 2. Did the District Court err when it denied Osborne's request to exclude a material witness from the courtroom during the presentation of other testimony?

¶ 5 3. Did the District Court err when it denied Osborne's motion to dismiss for lack of sufficient evidence?

¶ 6 4. Did the District Court err when it instructed the jury to consider evidence that corroborated the hearsay statements?

FACTUAL BACKGROUND

¶ 7 In October 1996, Knute Heen became suspicious that his thirty-three-month-old granddaughter, Cassie Heen, had been sexually abused by her stepfather, Heen's son-in-law, James Osborne. Heen reported his suspicions to Cassie's mother, Jamie Osborne. Heen and Jamie separately questioned Cassie about her interaction with Osborne. Following these conversations, Heen reported his suspicions to the child abuse hotline and to the Choteau County Sheriff. A subsequent medical examination confirmed that Cassie had physical injuries consistent with sexual abuse, but the examiner was unable to find any evidence with which to identify a perpetrator.

¶ 8 Cassie was interviewed by a Choteau County Sheriff's deputy and a social worker. She made no statements implicating Osborne, but made statements which appeared to implicate Heen.

¶ 9 Osborne was arrested and charged with sexual intercourse without consent. At trial, the State presented testimony from Heen and Jamie which related Cassie's out-of-court statements implicating her father. The District Court had previously concluded that Cassie was not competent to testify at trial.

¶ 10 Following trial, the jury convicted Osborne of sexual intercourse without consent. Osborne appeals to this Court. Additional facts will be provided where pertinent to our discussion.

ISSUE 1

¶ 11 Did the District Court err when it denied Osborne's motion to exclude the victim's out-of-court statements?

¶ 12 Heen and Jamie separately questioned Cassie in an effort to determine whether she had been sexually abused. Heen's testimony about his conversations with Cassie established that she told Heen that she had "played with Daddy's rubber duck;" that she told Heen that she wanted Osborne to stay at home or ride in a separate vehicle while she and Heen traveled to Havre to pick up her mother and brother; that Cassie told Heen her father had a green rubber duck; and that when Heen asked Cassie where daddy's rubber duck was, she made a motion that Heen interpreted to indicate Osborne's genitalia.

¶ 13 Jamie's testimony established that Cassie had answered "yes" when asked if Osborne had a rubber ducky; that Cassie had answered "yes" when asked if Osborne's "rubber ducky" was his "peepee;" and that when asked where on her own body Osborne's rubber ducky would be, Cassie said, "in my peepee."

¶ 14 We review a district court's evidentiary rulings for an abuse of discretion. The district court has broad discretion to determine whether evidence is relevant and admissible. Absent a showing of an abuse of discretion, the trial court's determination will not be overturned. See State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380.

¶ 15 The State gave notice of its intention to use hearsay at trial and the District Court admitted the testimony pursuant to the residual hearsay exception found at Rule 804, M.R.Evid., which provides in pertinent part:

Rule 804. Hearsay exceptions: declarant unavailable

(a) Definition of unavailability. Unavailability as a witness includes situations in which the declarant:

. . . .

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity;

. . . .

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

. . . .

(5) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having comparable circumstantial guarantees of trustworthiness.

¶ 16 Before Rule 804(b)(5) hearsay may be admitted, the proponent must show that the declarant is unavailable to testify, and that the statements bear comparable circumstantial guarantees of trustworthiness equivalent to the other enumerated exceptions to the hearsay rule. In State v. J.C.E. (1988), 235 Mont. 264, 273, 767 P.2d 309, 315, this Court addressed the admissibility of a young child's hearsay testimony:

Preliminary findings concerning the child's availability must be made by the District Court before hearsay testimony can be considered under Rule 804(b)(5):

1. The victim must be unavailable as a witness, whether through incompetency, illness, or some other like reason (e.g., trauma induced by the courtroom setting).

2. The proffered hearsay must be evidence of a material fact, and must be more probative than any other evidence available through reasonable means.

3. The party intending to offer the hearsay testimony must give advance notice of that intention.

¶ 17 The State gave written notice of its intent to rely on hearsay testimony six days prior to trial. Osborne contends that this notice was untimely, that he did not interview Heen or Jamie prior to trial because once the notice was provided, he had no meaningful time to prepare, and that consequently he did not know what Heen or Jamie would testify to at trial. However, Heen and Jamie were both listed as witnesses by the State and the affidavit for leave to file the information in this case contained a description of Cassie's statements to them. Moreover, Osborne conceded at the time of his objection that he was not surprised by the State's intention to rely on hearsay. Therefore, without reaching the merits of whether the State's notice was untimely, we conclude that based on these specific facts, the District Court was not required to exclude the evidence based on lack of, or inadequate, notice.

¶ 18 Prior to the introduction of Cassie's statements through Heen or Jamie, the District Court conducted a hearing outside the presence of the jury at which it attempted, unsuccessfully, to elicit answers from Cassie to simple questions such as her name and her age. The District Court found that Cassie was extremely shy, possibly intimidated by the courtroom, and unwilling to speak, whereupon it concluded that she was "not, at present, a competent witness under the rules of the State of Montana." For purposes of appeal, Osborne does not argue that Cassie was available as a witness.

¶ 19 Osborne concedes that the hearsay testimony concerned evidence of a material fact, the identity of the rapist, but contends that it was not more probative than any other evidence available through reasonable means. He offers, as an alternative, the deputy's testimony that Cassie told them about "Papa's rubber ducky." Heen testified that Cassie referred to Heen as "Papa" and Osborne as "Daddy." Osborne argues that the State's failure to follow up on the statements implicating Heen destroyed more probative evidence of the identity of Cassie's attacker, and that the State should not be able to take advantage of its own error by using less probative evidence which identifies Osborne.

¶ 20 There was no evidence, other than the hearsay evidence, implicating Osborne. Therefore it was evidence of a material fact, more probative than any other evidence available through reasonable means. However, the material fact that the State sought to prove through the hearsay evidence was not simply the identity of the rapist, it was that Cassie identified Osborne as the rapist. The fact that she may have identified Heen to the deputy and the social worker is evidence of a different fact, and does not constitute more probative evidence of the same material fact. Accordingly, we conclude that the hearsay evidence of Cassie's statements to Heen and Jamie addressed a material fact and was more probative than any other evidence available through reasonable means. We further conclude that the District Court made adequate preliminary inquiry before it admitted the hearsay statements.

¶ 21 Even though admissible pursuant to Rule 804(b)(5), incriminating statements may be inadmissible because they violate the defendant's confrontation clause rights. See Idaho v. Wright (1990), 497 U.S. 805, 814, 110 S.Ct. 3139, 3146, 111 L.Ed.2d 638, 651. The firmly rooted exceptions to hearsay bear adequate indicia of reliability in and of themselves; however, residual clause exceptions such as child hearsay, are not firmly rooted exceptions and therefore they require a showing of particularized guarantees of trustworthiness. See Wright, 497 U.S. at 815, 110 S.Ct. at 3146, 111 L.Ed.2d. at 652. It is the proponent's burden to show that the declarant was unavailable and that the hearsay evidence it seeks to introduce bears sufficient indicia of reliability to withstand Confrontation Clause scrutiny. See Wright, 497 U.S. at 816, 110 S.Ct. at 3147, 111 L.Ed.2d. at 653.

¶ 22 The United States Supreme Court in Wright...