State v. Spencer

• Decision Date: 25 September 2007
• Docket Number: No. 05-627.,05-627.
• Citation: 339 Mont. 227,169 P.3d 384,2007 MT 245
• Parties: STATE of Montana, Plaintiff and Respondent, v. Kirk Wayne SPENCER, Defendant and Appellant.
• Court: Montana Supreme Court

169 P.3d 384

2007 MT 245

339 Mont. 227

STATE of Montana, Plaintiff and Respondent, v. Kirk Wayne SPENCER, Defendant and Appellant.

No. 05-627.

Supreme Court of Montana.

Submitted on Briefs July 11, 2007.

Decided September 25, 2007.

For Appellant: R. Allen Beck, Lewistown, Montana.

For Respondent: Honorable Mike McGrath, Attorney General; John Paulson, Assistant Attorney General, Helena, Montana, Thomas P. Meissner, County Attorney, Lewistown, Montana.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Kirk Wayne Spencer (Spencer) appeals from his conviction in the Tenth Judicial District, Fergus County, of sexual intercourse without consent with his stepdaughter. We affirm.

¶ 2 We restate the issues as follows:

¶ 3 Did the introduction of S.S.'s hearsay statements violate Spencer's Sixth Amendment right to confrontation?

¶ 4 Did the District Court fail to comply with § 46-16-220, MCA, regarding the admissibility of child hearsay?

¶ 5 Did the District Court err in excluding Dr. Scolatti's videotaped testimony?

BACKGROUND

¶ 6 Bill and Lisa Weaver became foster parents of Spencer's infant daughter, T.S., twenty-two-month-old daughter, R.S., and three-and-a-half-year-old stepdaughter, S.S., on April 2, 2004. Shortly after beginning foster care, Lisa repeatedly observed S.S. and R.S. exhibiting sexualized behavior, such as masturbating, trying to touch other's breasts and genitals, trying to insert toys and other objects into their vaginas, and sexually playing with toys, dolls, T.S., and one another.

¶ 7 In May 2004, the Weavers informed Roger Johnson, a social worker with the Department of Public Health and Human Services (DPHHS), of the girls' behavior, and he referred them to Dr. Nora Gerrity, a pediatrician, to determine whether the children had been abused. Dr. Gerrity physically examined R.S. and S.S. and discovered slight irregularities in R.S.'s hymen and a full transection in S.S.'s hymen, consistent with a penetrating injury.

¶ 8 Following the examinations with Dr. Gerrity, R.S. and S.S. began seeing Maggie Moffatt, a licensed clinical professional counselor. During the counseling sessions, S.S. made several statements indicating that Spencer had sexually abused S.S. Ms. Moffatt reported these statements to Johnson, who then reported this information to law enforcement. S.S. made similar statements to Lisa Weaver, S.S.'s foster mother.

¶ 9 The State charged Spencer with sexual intercourse without consent on June 8, 2004. The State later added a second count of sexual intercourse without consent for the alleged sexual abuse of R.S. Spencer pled not guilty to both counts.

¶ 10 The State filed on September 29, 2004, its first notice of intent to introduce S.S.'s hearsay statements made to Ms. Moffatt, if S.S. was unavailable for trial. The State later filed a second and third notice to introduce S.S.'s hearsay statements made to Ms. Moffatt and Lisa Weaver. At an evidentiary hearing on January 3, 2005, the State and Spencer stipulated that S.S. would be "unavailable" to testify. Following briefing on the hearsay statements' admissibility, the District Court ruled that S.S.'s hearsay statements could be admitted through the testimony of Ms. Moffatt and Lisa Weaver. The State then filed a fourth notice of intent to introduce S.S.'s hearsay statements made to Ms. Moffatt; this motion was orally granted at trial. At trial, the District Court also granted the State's motion to exclude video testimony of Dr. Michael Scolatti, a licensed clinical psychologist, whose testimony indicated that Spencer did not meet the diagnostic criteria of a pedophile. Spencer's jury trial began March 14, 2005.

¶ 11 Ms. Moffatt testified about several statements S.S. made regarding sexual abuse and Spencer. Moffatt testified that on one occasion, in response to a question about naps, S.S.'s "`eyes got really big and she said Kirk makes me rest on the couch and then he puts his potty thing inside me.' She says `right here' and she points to her private area with her finger, `and it hurts really lots.'" Ms. Moffatt testified that S.S. told her that Kirk was "my dad." According to Ms. Moffatt, S.S. referred to "Kirk" or "my dad or my daddy" when discussing sexual behavior. Ms. Moffatt further testified that S.S. claimed that no one except her dad had ever touched her that way and that, "Daddy told me not to tell anyone what he did." Ms. Moffatt also testified that S.S. related instances of Spencer performing oral sex on S.S. and R.S. Ms. Moffatt testified that S.S.'s statements were unexpected and that she had not used leading questions or coaching techniques to elicit S.S.'s responses.

¶ 12 Lisa Weaver testified that on one occasion when Lisa was tucking S.S. in for bed, S.S. spontaneously stated that her "my daddy, my other daddy, stuck his pee-er in me and it hurt real bad[.]" Lisa testified that she understood "other daddy" to mean Spencer. On another occasion, while S.S. and T.S. were playing in their play tent, Lisa overheard S.S. say, "[n]ow, [T.S.], you lie down like this. It doesn't hurt — this is how Kirk does it[.]" Lisa testified that she opened the tent and saw T.S. lying on her back with her legs lying wide open.

¶ 13 The jury found Spencer guilty of sexual intercourse without consent with S.S. and not guilty of sexual intercourse without consent with R.S. The court sentenced Spencer to thirty-five years in Montana State Prison. Spencer appeals his conviction.

STANDARD OF REVIEW

¶ 14 We review de novo a district court's interpretation of the Sixth Amendment. State v. Mizenko, 2006 MT 11, ¶ 8, 330 Mont. 299, ¶ 8, 127 P.3d 458, ¶ 8. We review a district court's evidentiary rulings for abuse of discretion. Mizenko, ¶ 8. A court abuses its discretion when it acts arbitrarily, without employing conscientious judgment, or "exceeds the bounds of reason, resulting in substantial injustice." State v. Matz, 2006 MT 348, ¶ 34, 335 Mont. 201, ¶ 34, 150 P.3d 367, ¶ 34.

DISCUSSION

¶ 15 I Did the introduction of S.S.'s hearsay statements violate Spencer's Sixth Amendment right to confrontation?

¶ 16 Spencer claims that the District Court incorrectly ruled that S.S.'s statements to Ms. Moffatt and Lisa Weaver were non-testimonial and thus implicated Montana hearsay law, rather than the Sixth Amendment. The Sixth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, guarantees criminal defendants the right to be confronted with the witnesses against them. Testimonial hearsay statements are inadmissible unless the declarant is "unavailable" for trial and the defendant had a prior opportunity for cross-examination. Crawford v. Wash., 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004). The Sixth Amendment's Confrontation Clause applies only to testimonial hearsay. Davis v. Wash., ___ U.S. ___, 126 S.Ct. 2266, 2274-75, 165 L.Ed.2d 224 (2006).

¶ 17 We discussed in Mizenko what constitutes a testimonial statement. In general, a declarant's statements are presumed testimonial if they are knowingly made to a police officer or government agent. Mizenko, ¶ 23. A statement is presumed non-testimonial, however, if the declarant had "objective reason to believe" that the statement served only "to avert or mitigate an imminent or immediate danger" and the agent receiving the statement lacked intent to create evidence. Mizenko, ¶ 23. A statement made to a nongovernmental agent is nontestimonial unless the declarant had "clear reason to believe that the statement would be used in court as substantive evidence against the defendant[.]" Mizenko, ¶ 23. Thus, whether the declarant's statement was to a governmental agent or to a non-governmental agent determines which standard applies.

¶ 18 Spencer claims that Ms. Moffatt and Lisa Weaver were acting under color of law as State investigators for the purpose of criminally prosecuting him. Spencer bases this assertion primarily on the fact that foster parents and social workers are statutorily required to report child abuse or neglect to DPHHS. Section 41-3-201, MCA. Spencer further asserts that law enforcement waited for and completely relied on results from Ms. Moffatt's interviews with S.S. and R.S. to identify Spencer. Based on these assertions, Spencer claims that his criminal prosecution is the result of a "joint investigation" by law enforcement, the Fergus County Attorney, DPHHS, Ms. Moffatt, and the Weavers. Spencer further argues that because S.S.'s statements to Ms. Moffatt and Lisa Weaver were made during this "joint investigation," the statements are testimonial. We disagree.

¶ 19 Though we can conceive of factual circumstances that could support an "under color of law" argument, Spencer has offered scant evidence to support his conclusory statements. Spencer is correct that § 41-3-201, MCA, requires foster parents and social workers to report suspected child abuse or neglect. In addition to foster parents and social workers, the statute also requires reporting by physicians, residents, interns, and other hospital staff; nurses, osteopaths, chiropractors, podiatrists, medical examiners, coroners, dentists, optometrists, and other health or mental health professionals; religious healers; school teachers and school employees; day-care facility staff; and, clergy members, among others. Section 41-3-201, MCA. There is no indication, however, that the Legislature intended to deputize this litany of professionals and individuals into law enforcement, and we refuse to attach that significance to the duty to report.

¶ 20 Moreover, the trial testimony belies Spencer's claim of a "joint investigation." Ms. Moffatt is employed as a counselor with a private practice, not the State. She counsels children and adults on a variety of issues, including depression, anxiety, and abuse. Ms. Moffatt testified that she began seeing S.S. and R.S. in May 2004 and continued to see S.S. and R.S. after Spencer was...