State v. Scheffelman
| Decision Date | 08 January 1992 |
| Docket Number | No. 90-220,90-220 |
| Citation | 820 P.2d 1293,250 Mont. 334 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Ricky SCHEFFELMAN, Defendant and Appellant. |
| Court | Montana Supreme Court |
Stephen C. Moses, Charles F. Moses, argued, Moses Law Firm, Billings, for defendant and appellant.
Marc Racicot, Atty. Gen., Elizabeth S. Baker, argued, Asst. Atty. Gen., Helena, Harold F. Hanser, County Atty., Billings, Donna K. Heffington, Deputy County Atty., for plaintiff and respondent.
Defendant, Ricky Scheffelman, appeals his conviction by a jury of the Thirteenth Judicial District, Yellowstone County, for sexual intercourse without consent and sexual assault. Scheffelman was sentenced to 20 years in prison for sexual intercourse without consent and 15 years for sexual assault. These terms are to be served consecutively. The last ten years of each sentence was suspended. The District Court designated Scheffelman a persistent felony offender and added ten years to each of the above counts to be served consecutively to the above sentences. Scheffelman was designated dangerous for purposes of parole. We reverse.
The issues on appeal are:
1. Whether the District Court erred in admitting the child victim's prior statements;
2. Whether the District Court erred in admitting the testimony of Linda Crummet, a clinical social worker;
3. Whether the defendant was entitled to a mistrial on the ground that one of the jurors failed to disclose during voir dire examination that he was acquainted with a State witness;
4. Whether the defendant was entitled to a mistrial on the ground that a State witness made a remark regarding drug use 5. Whether the District Court erred in refusing defendant's request to review the victim's psychological records;
6. Whether the District Court erred in instructing the jury;
7. Whether the convictions are supported by substantial evidence;
8. Whether the District Court erred in sentencing defendant.
Defendant, Ricky Scheffelman, was convicted of molesting his step-daughter, S.S., during the period of time between Christmas Eve of 1985 and May of 1986. According to the allegations of the State, Scheffelman entered the victim's bedroom on Christmas Eve of 1985. The victim was asleep in a bed that was shared with her two siblings. Scheffelman laid down next to the bed, reached over the top and fondled the victim. According to the victim's testimony, Scheffelman inserted his fingers into her vagina and "wiggled them around." This conduct continued, on a periodic basis, until May of 1986 when Scheffelman was imprisoned on an unrelated charge.
The victim did not report these incidents to anyone until the spring of 1988, when she was living with her grandmother, Lovyce Smith. At this time Ms. Smith questioned the victim about sexual abuse. Initially, the victim denied that any abuse occurred. However after several discussions of the matter, the victim recanted her earlier denials and told her grandmother that she had, in fact, been sexually molested by the defendant.
Following these revelations Ms. Smith brought the victim to see Pastor Johan Rockstad. The victim told him the same stories she told her grandmother. She also told Pastor Rockstad that the defendant had sexual intercourse with her. When the victim's grandmother questioned her about this incident, the victim admitted that she "lied about that part."
On December 30, 1988, Scheffelman was charged with sexual intercourse without consent and sexual assault. On November 6, 1989, defendant was convicted of the above-named crimes. Several errors have been set forth in the appeal of those convictions. The facts surrounding these errors will be discussed in greater depth under the appropriate issues contained in this opinion.
Whether prior consistent statements of the child witness were properly admitted to rebut the defendant's express and implied charges of fabrication and improper influence.
During trial, the State's attorney in her opening statement, believing that the defendant would attack the victim's credibility through the use of her inconsistent statements, mentioned the prior consistent statements of the victim. She also alluded to the fact that the victim had a motive in reporting Scheffelman's conduct because she did not want him to return to the family home and molest her again. Defendant objected and was overruled. During the State's case in chief, and after the testimony of the victim, which included cross-examination by the defendant, the State sought to introduce prior consistent statements of the victim through the hearsay exclusion contained in Rule 801(d)(1)(B), M.R.Evid. The defendant objected; his objections were overruled and the evidence was introduced.
Scheffelman argues that the District Court improperly allowed these statements into evidence. His argument of this issue has two bases. First he maintains the District Court erred when it allowed the State to introduce impeaching evidence against its own witness. Through its introduction of this evidence, the State was able to introduce several out of court statements made by the victim under Rule 801(d)(1)(B), M.R.Evid. Scheffelman argues that these tactics deprived him of his ability to formulate his own trial strategy because he was forced to react to the strategy set forth by the State. In his second argument, Scheffelman maintains the out of court statements introduced under Rule 801(d)(1)(B), M.R.Evid., should not have been allowed into evidence because they were made after the victim had a motive to falsify. We will address each of these arguments in order.
Rule 801(d)(1)(B), M.R.Evid., provides:
A statement is not hearsay if ... [t]he declarant testifies at trial ... and is subject to cross-examination concerning the statement and the statement is ... consistent with his testimony and is offered to rebut an express or implied charge against him of subsequent fabrication, improper influence or motive[.]
There are four requirements before prior statements qualify for admission under this rule: 1) the declarant must testify and 2) be subject to cross-examination concerning her statement, and 3) the statements to which the witness testifies must be consistent with the declarant's testimony, and 4) the statement must rebut an express or implied charge of fabrication, improper influence or motive. See State v. Mackie (1981), 191 Mont. 138, 622 P.2d 673.
Scheffelman argues that the statements introduced by the State do not qualify for admission under this rule because they were not introduced to rebut a charge of fabrication. As stated above, the State, through its opening statement and through direct examination, introduced several inconsistent statements made by the victim. It also set forth a possible motive that may have led the victim to falsify testimony concerning the defendant's conduct. After this evidence was admitted, the State introduced the testimony of the grandmother, Lovyce Smith; Pastor Rockstad; and also Linda Crummet and Terri Herman. Each of these witnesses repeated statements made by the victim that were consistent with her trial testimony. Their testimony was allowed into evidence under the exception to the hearsay rule provided by Rule 801(d)(1)(B), M.R.Evid.
Scheffelman objected to the statements made by the prosecutor during opening statement concerning the victim's inconsistencies. He also objected to this evidence during the State's direct examination of the victim. The District Court overruled Scheffelman's objections. However, in doing so, it reminded the prosecutor that she might "back herself into a corner" if she made statements during her opening that could not be proven by admissible evidence. The assertion of facts in an opening statement which are not proved during trial may constitute grounds for a mistrial if there is a reasonable possibility that the inadmissible evidence contributed to the conviction. State v. West (1980), 190 Mont. 38, 42, 617 P.2d 1298, 1300.
During defendant's counsel's opening statement he stated the victim will tell a tale and that she lied to her grandmother and the pastor. During cross-examination of the victim, Scheffelman's attorney attempted to challenge her testimony. He also alluded to the possibility that the victim may have had a motive to fabricate and implied she was subject to improper influence on the part of the prosecuting attorney. Following cross-examination the State was allowed to present testimony of the prior out of court statements made by the victim that were consistent with her testimony.
The defendant claims he does not assert a subsequent fabrication on the part of the victim, but that she was fabricating or lying all along. Generally speaking, if this were true, prior consistent statements would not be admitted. However, given the fact that the defense implied improper influence on the part of the prosecuting attorney in cross examining the victim, we hold that her prior consistent statements in this case were properly admitted. The statements made by the prosecutor during her opening statement could possibly have resulted in a mistrial if they could not be proven by the evidence. The prosecutor was warned of this possibility by the District Court. However, the door opened for the introduction of the victim's prior consistent statements by the defense's implication of improper influence by the prosecuting attorney. Once this was done, the State was free to introduce the out of court declarations through testimony provided by rebuttal witnesses.
Scheffelman next argues that the prior consistent statements should not have been allowed into evidence because they were made after the victim had a motive to falsify. At common law, prior consistent statements were normally excluded from evidence because they were viewed as irrelevant. It was recognized that the mere fact...
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