State v. Pingree

• Decision Date: 30 June 2015
• Docket Number: No. DA 13–0490.,DA 13–0490.
• Citation: 352 P.3d 1086,2015 MT 187,379 Mont. 521
• Parties: STATE of Montana, Plaintiff and Appellee, v. Richard Curtis PINGREE, Defendant and Appellant.
• Court: Montana Supreme Court

379 Mont. 521

352 P.3d 1086

2015 MT 187

STATE of Montana, Plaintiff and Appellee

v.Richard Curtis PINGREE, Defendant and Appellant.

No. DA 13–0490.

Supreme Court of Montana.

Submitted on Briefs May 20, 2015.

Decided June 30, 2015.

For Appellant: Wade Zolynski, Chief Appellate Defender, Nicholas Domitrovich, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman Assistant Attorney General, Helena, Montana, William E. Fulbright, Ravalli County Attorney, Angela Wetzsteon, Deputy County Attorney, Hamilton, Montana.

Opinion

Chief Justice MIKE McGRATHdelivered the Opinion of the Court.

¶ 1 A jury convicted Richard Curtis Pingree(Pingree) of Assault with a Weapon and Partner or Family Member Assault.At the trial, Pingree's ex-wife, Caroline, did not testify and the District Court admitted a number of hearsay statements she made prior to trial.

¶ 2 The sole issue on appeal is whether Pingree's confrontation rights were violated when prior testimony from a civil order of protection hearing was read at his criminal trial.We reverse.

BACKGROUND

¶ 3 On September 11, 2012, the Ravalli County Attorney filed an information charging Pingree with felony Assault with a Weapon, in violation of § 45–5–213, MCA, and misdemeanor Partner or Family Member Assault, in violation of § 45–5–206, MCA.The State alleged that Pingree pointed a gun at his wife and fired it to the left of her head.

¶ 4 On October 5, 2012, Caroline Pingree, the alleged victim, sought an order of protection in Butte–Silver Bow County, where the parties' dissolution had been filed.Pingree was present at the hearing, although without counsel.¹He testified, but did not contest the order.Pingree did not cross-examine Caroline.

¶ 5 Subsequently, Pingree pled not guilty to the criminal charges and the case went to a jury trial.Pingree maintained that he did not intend to shoot at Caroline; rather, his finger slipped when loading the weapon.Although the State subpoenaed Caroline, she was not served and did not appear at trial.²Instead, the prosecutor introduced portions of a transcript from the civil order of protection hearing, at which Caroline testified to violence by Pingree.The actual transcript was not entered as an exhibit; rather, it was read into evidence in question and answer form.

¶ 6The District Court admitted the prior testimony over the objection of defense counsel.The court held that Caroline's hearsay statements from the order of protection hearing were admissible under M. R. Evid. 804(b)(1)(B).The District Court noted that Caroline's statements were made under oath and Pingree was advised of his right to cross-examine Caroline by the court, but declined the opportunity to do so.The District Court reasoned that the confrontation clause requires only that the defendant have the opportunity to cross-examine, not that he actually do so, and that representation by counsel is not a requirement for admissibility.

¶ 7 While deliberating, the jury sent a request to the District Court asking to review the transcript of the order of protection hearing.Judge Langton denied the request and provided a supplementary instruction that read, in part: “It would be improper for me to provide you a complete transcript of the Butte hearing as it would tend to give undue emphasis to that testimony.If there is a specific point of topic from that hearing transcript that you request you may inform me of that and I will consider it.”

¶ 8 On March 6, 2013, the jury found Pingree guilty of the charged offenses.Judge Langton sentenced him to the Department of Corrections for a period of fifteen years, with ten years suspended, on the Assault with a Weapon charge, and six months, with five months suspended, on the Partner or Family Member Assault charge (to run concurrently).Pingree now appeals.

STANDARD OF REVIEW

¶ 9This court reviews a district court's evidentiary decisions for abuse of discretion.State v. Mizenko,2006 MT 11, ¶ 8, 330 Mont. 299, 127 P.3d 458.We review a district court's conclusions of law and interpretations of the Constitution or the rules of evidence de novo.Mizenko,¶ 8.

DISCUSSION

¶ 10Issue: Whether Pingree's confrontation rights were violated when prior testimony from a civil order of protection hearing was read at his criminal trial.

¶ 11The State maintains that Pingree waived his M.R. Evid. 804(b)(1)(B) argument in the District Court.Additionally, the State asserts that Pingree waived any argument based on the Montana Constitution by failing to raise it below.Pingree asserts that he raised the M.R. Evid. 804 and confrontation issues, and the District Court considered them.

¶ 12 On the morning of the trial, the State indicated it intended to introduce Caroline's testimony from the order of protection hearing.Pingree objected on the basis of the “Sixth Amendment right to confront the witness, confrontation clause, Crawford[referring to Crawford v. Washington,541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177(2004) ], as well as ... the right to personally face your accuser.”The District Court clearly considered the hearsay issue and ruled that the prior testimony was admissible under both Crawford and M. R. Evid. 804(b)(1)(B).Pingree's objection was clear and sufficient to preserve the issue on appeal.

¶ 13 The United States Constitution provides that criminal defendants“enjoy the right ... to be confronted with the witnesses against him.”U.S. Const. amend. VI.Similarly, the Montana Constitution provides that “in all criminal prosecutions the accused shall have the right ... to meet the witnesses against him face to face”Mont. Const. art. II, § 24.We have previously held that Montana's Confrontation Clause provides greater protection than the Sixth Amendment of the United States Constitution.State v. Clark,1998 MT 221, ¶¶ 20–25, 290 Mont. 479, 964 P.2d 766.These protections prohibit the State's use of hearsay statements except in certain circumstances.Mizenko,¶ 10.

¶ 14“Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”M. R. Evid. 801(c);State v. Sanchez,2008 MT 27, ¶ 17, 341 Mont. 240, 177 P.3d 444.Generally, hearsay is inadmissible unless specifically excluded by statute, the rules of evidence, or other court rules.M. R. Evid. 802;Sanchez,¶ 17. M. R. Evid. 804 provides hearsay exceptions applicable when the declarant is unavailable.³

¶ 15 In a criminal case, former testimony given as a witness at another hearing, although hearsay, is admissible “if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, and redirect examination.”M.R. Evid. 804(b)(1)(B).In other words, before a prosecutor may introduce the former testimony of a now-unavailable witness, the defendant must have had, at the time testimony was given: (1) an opportunity to examine the declarant, and (2) a similar motive to develop the declarant's testimony.M. R. Evid. 804(b)(1)(B).The standard for admitting this evidence is whether the objecting party had the same motive to conduct the examination as he would at trial if the witness were available at that time.State v. Homer,2014 MT 57, ¶ 9, 374 Mont. 157, 321 P.3d 77.

¶ 16 Cross-examination is essential to the adversary system.Mizenko,¶ 13.Cross-examination “tests the witness's testimony in the most rigorous, demanding, and exacting” manner and has the potential to expose “flaws, inconsistencies, and insidious motives.”Mizenko,¶ 13.We agree with the State that Pingree's right to cross-examine Caroline was satisfied.The court presiding over the order of protection hearing advised Pingree of his right to cross-examine Caroline, but Pingree declined the opportunity.Although he was acting as his own attorney, he nonetheless had the opportunity to cross-examine Caroline and we conclude that M. R. Evid. 804(b)(1)(B)'s requirement that the individual have an opportunity to cross examine the declarant is satisfied.

¶ 17 However, the second prong of M.R. Evid. 804(b)(1)(B), requiring a similar motive, was not satisfied in this case.It is clear that the motives underlying the two cases were vastly different.An order of protection hearing is a civil proceeding.A protective order serves to prevent further conflict between the parties.Certainly, a respondent may face criminal consequences for violating an order of protection (see§ 45–5–626, MCA ), but simply being named as respondent does not expose a respondent to criminal liability.Here, Pingree conceded the issue and agreed to the imposition of the protective order against him.

¶ 18 Conversely, a criminal case implicates a much higher risk for a defendant.The charges carry serious criminal penalties if a defendant is found guilty.A criminal conviction affects one's liberty in the most fundamental way and thus, a defendant is entitled to legal representation.Pingree risked maximum sentences of twenty years and $50,000 in fines for the Assault with a Weapon charge and one year and $1,000 in fines for the misdemeanor Partner or Family Member Assault charge.Sections 45–5–213(2)(a), –206(3)(a)(i), MCA.The consequences of a criminal prosecution provide a very different motivation for cross-examination.

¶ 19 Pingree did not have a similar motive for developing testimony via cross-examination of Caroline at both hearings.As discussed above, the punitive nature of criminal proceedings critically differs from a civil order of protection hearing.Notably, Pingree agreed to the imposition of the protective order against him, whereas he strongly maintained his innocence at the criminal trial.Therefore, we conclude that the District Court erred when it found that Caroline's statements satisfied the requirements of M. R. Evid. 804(b)(1)(B).

¶ 20The State further asserts that the admission of Caroline's prior...