State v. Parker, 05-308.
| Decision Date | 10 October 2006 |
| Docket Number | No. 05-308.,05-308. |
| Citation | 2006 MT 258,144 P.3d 831 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Glen Dale PARKER, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Kristina Neal, Assistant Appellate Defender, Appellate Defender Office, Helena, Montana.
For Respondent: Hon. Mike McGrath, Montana Attorney General, John Paulson, Assistant Attorney General, Helena, Montana, Robert J. Long, Lake County Attorney, Polson, Montana.
¶ 1 A jury convicted Glen Parker (Parker) of assault with a weapon after trial in the Twentieth Judicial District, Lake County. Parker asserts on appeal that the District Court violated his fundamental constitutional right to confrontation because the District Court's bailiff delivered to the jury room audio-taped evidence not admitted at trial. Parker also alleges ineffective assistance of counsel based on counsel's failure to object to the admission of certain evidence. We reverse and remand for a new trial.
¶ 2 We rephrase the issues on appeal as follows:
¶ 3 1. Whether the District Court violated Parker's constitutional right to confrontation when the bailiff delivered to the jury room a witness's taped interview that had not been introduced into evidence.
2. Whether Parker's counsel ineffectively represented him by failing to object when the bailiff delivered to the jury room audio tapes of a "911" call and police interviews with Parker's children and another witness.
¶ 4 On the morning of October 2, 2003, police arrested Parker after a disturbance at his home in Lake County. After police arrived, Parker's wife, Annalisa McDonough, was taken by ambulance to the hospital for treatment of several injuries including a cut to the back of her head, lacerations, and swelling and bruising in both of her shoulders, her right elbow, and her left knee. Police also observed and photographed bruising, swelling, and cuts sustained by Parker's son.
¶ 5 Immediately following Parker's arrest Officer Bell interviewed the couple's four children, and Eve Kratz, an adult houseguest at their home. Each of the five had observed some portion of the events preceding Parker's arrest. Bell recorded all of the interviews he conducted that morning onto one audio-tape. At trial, the State introduced into evidence Bell's taped interviews with Parker's children and played the interviews for the jury. Kratz's statement was not entered into evidence, nor did she testify in person. At the close of arguments the District Court ordered the audio-tape and a tape player delivered to the jury room for use by the jury during deliberations.
¶ 6 The taped statements given by Parker's children and Kratz on the morning of Parker's arrest implicated Parker for injuries to both McDonough and Parker's son. Also that morning, McDonough told her treating nurse and physician that Parker caused her injuries, and they so testified at trial. However, Parker's family members recanted their recorded statements under oath at trial. Each testified that they either could not remember the details of the event, or had been forced by Kratz to make false statements about Parker's actions.
¶ 7 Parker's son testified he lied to police because Kratz, a woman he described as six feet tall and weighing 300 pounds, intimidated him. McDonough, Parker's wife, told the jury Kratz "didn't care for [Parker] very much" because he repeatedly asked Kratz to leave after she overstayed by a month McDonough's invitation to "stay a few days" at their home. McDonough said Kratz needed a stable residence to meet the conditions of her probation and avoid going back to prison, and that she had nowhere else to live. Parker's wife also testified under oath that Kratz caused her head injury when Kratz pushed her and her head struck an electric baseboard in the hours before Parker's arrest. She also denied having told medical personnel that Parker caused her injuries.
¶ 8 When the State moved to admit into evidence Officer Bell's taped interviews, Bell provided the following foundation:
[State]: I will hand you what's been marked as State's Exhibit 2 and ask if you can identify that?
[Bell]: Yeah. That's the tape. It's 7:05 a.m., 10/2/03. It's got my name, my badge number, the CR number for our agency that keeps track of every case, and Annalisa Parker, victim, and kids' statements.
[State]: Contained therein is a true and correct copy of your interview with the kids?
[Bell]: Yes.
[State]: That would be all of the kids?
Bell then indicated the tape contained the statements of each of the Parker children, at which point the District Court admitted the tape, and the prosecutor played the children's statements in open court. The tape revealed that each Parker child saw a different portion of the events leading up to Parker's arrest, but no one child saw the entirety of the interaction between their parents.
¶ 9 Unbeknownst to Parker, the tape contained not only the children's statements, but also Kratz's statement recorded by Bell on the morning of Parker's arrest. When the State played the tape in the courtroom, the prosecutor stopped the tape at the conclusion of the children's statements so neither Parker nor the jury heard Kratz's recorded statement. Kratz was not called to testify by either party. Nor did Officer Bell testify as to the content of his interview with Kratz, which revealed Kratz's version of the events preceding Parker's arrest, and a description of Parker's actions. At the close of arguments the court ordered that the tape and all other admitted evidence be delivered to the jury room, and instructed the jury to consider all of the evidence before submitting a verdict. Parker's counsel did not object to delivery of the tape to the jury room.
¶ 10 The jury convicted Parker of one count of assault with a weapon in violation of § 45-5-213, MCA, and the District Court sentenced him to a twenty-year prison term with ten years suspended. Parker timely appealed.
¶ 11 We generally review a district court's decision to deliver exhibits in evidence to a jury room during deliberations for an abuse of discretion. State v. Bales, 1999 MT 334, ¶ 8, 297 Mont. 402, ¶ 8, 994 P.2d 17, ¶ 8 (citation omitted). The evidence at issue here, however, was not admitted, which requires us to determine whether the District Court's error violated Parker's constitutional right to confront a witness against him. Accordingly, our review of the constitutional law question raised here is plenary. State v. Mann, 2006 MT 160, ¶ 10, 332 Mont. 476, ¶ 10, 139 P.3d 159, ¶ 10 (citation omitted).
¶ 12 1. Whether the District Court violated Parker's constitutional right to confrontation when the bailiff delivered to the jury room a witness's taped interview that had not been introduced into evidence.
¶ 13 It is undisputed that during Parker's trial the bailiff delivered to the jury room an audio-tape which included an interview of Kratz recorded by Officer Bell and a tape player for use during deliberations. The record is likewise clear that neither party entered into evidence Kratz's recorded interview, called Kratz to testify in person, or elicited testimony from Officer Bell as to the content of his interview with Kratz.
¶ 14 Parker contends the jury's exposure to extrinsic evidence violated his right to confrontation under both the United States and Montana Constitutions, and as a result he is entitled to a new trial. Parker argues the prosecution misled the District Court as to the contents of the audio-tape when the State offered the tape into evidence premised upon Officer Bell's testimony that the tape contained interviews with Parker's children. At no time did the State disclose Kratz's interview was on the tape. Parker also asserts there was no reason he should have known that Kratz's interview was delivered to the jury during deliberations, nor should he be required to prove that the jury heard and was prejudiced by Kratz's interview in order to receive a new trial. Parker posits the prosecution's infraction infringed upon his constitutional right to address Kratz's allegations against him, resulted in the District Court's delivery of extrinsic evidence to the jury room, and constituted reversible error entitling him to a new trial.
¶ 15 The State responds that Parker failed to preserve this issue for direct appeal because he never objected to the delivery of the tape to the jury room, and therefore robbed the District Court of the opportunity to exercise its discretion to disallow the audio-tape exhibit into the jury room in accordance with § 46-16-504, MCA. The State further argues that Parker cannot establish here that the jury actually heard Kratz's testimony, and Parker should therefore pursue his claim through post-conviction proceedings. In the alternative, the State contends that delivery of Kratz's interview to the jury was harmless error, cumulative to other admissible evidence, and did not contribute to Parker's conviction.
¶ 16 Parker counters that Kratz's interview fails harmless error analysis because it struck at the heart of Parker's defense. Parker based his defense on his contention, and his family members' sworn testimony, that Kratz essentially bullied them into making false statements to police and medical personnel. The jury's exposure to Kratz's taped statement, combined with her absence from court, denied Parker the opportunity to counter her version of critical events or challenge her credibility as a witness. Moreover, because the jury never saw Kratz testify in person, it had no opportunity to observe her demeanor, body language, or conduct so as to compare the weight of her testimony against other evidence.
¶ 17 At the outset of our analysis, we address whether this issue is properly before us on...
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