State v. St. Germain, 04-869.

• Decision Date: 06 February 2007
• Docket Number: No. 04-869.,04-869.
• Citation: 2007 MT 28,336 Mont. 17,153 P.3d 591
• Parties: STATE of Montana, Plaintiff and Respondent, v. Joel Alfred ST. GERMAIN, Defendant and Appellant.
• Court: Montana Supreme Court

153 P.3d 591

2007 MT 28

336 Mont. 17

STATE of Montana, Plaintiff and Respondent, v. Joel Alfred ST. GERMAIN, Defendant and Appellant.

No. 04-869.

Supreme Court of Montana.

Submitted on Briefs December 29, 2005.

Decided February 6, 2007.

For Appellant: David E. Stenerson, Stenerson Law Office, P.C., Hamilton, Montana.

For Respondent: Mike McGrath, Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, Montana, George H. Corn, County Attorney; William E. Fulbright, Deputy County Attorney, Hamilton, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Joel Alfred St. Germain (St. Germain) appeals from his conviction in the Twenty-First Judicial District Court, Ravalli County, of four counts of incest, all felonies, in violation of § 45-5-507, MCA, and four counts of sexual intercourse without consent, all felonies, in violation of § 45-5-503, MCA. We affirm.

¶ 2 We restate the issues on appeal as follows:

¶ 3 1. Was St. Germain's right to be present at all critical stages of his trial violated?

¶ 4 2. Did the District Court abuse its discretion in refusing to allow St. Germain's defense investigator to testify as an expert regarding the victim's credibility?

¶ 5 3. Did St. Germain's trial counsel render ineffective assistance of counsel, depriving him of a fair trial?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 H.M. began living with St. Germain and her mother at age seven, shortly after he and her mother married. While living in St. Germain's household, H.M. was afraid of him and was a constant victim of his discipline. St. Germain disciplined H.M. with grim physical punishment, involving weight training and strenuous exercise. St. Germain further exercised complete emotional control over H.M. through his disciplinary techniques.

¶ 7 H.M. lived with her mother and St. Germain in both Missoula, Montana, and Butte, Montana, until she was eleven-years-old. While living in Butte, St. Germain had an exercise area in the basement in which H.M. would exercise with him. One day, while in the exercise area, St. Germain instructed H.M. to lie on the floor with her knees up. St. Germain pulled down H.M.'s pants and proceeded to have anal intercourse with H.M. H.M. further recalled having anal intercourse with St. Germain on separate occasions in the back of his van while St. Germain was working as an independent floor installer.

¶ 8 While later living in Stevensville, Montana, St. Germain performed both digital and anal intercourse upon H.M. Later still while in Stevensville, St. Germain began having vaginal intercourse with H.M., but would still use anal intercourse as a form of punishment.

¶ 9 At age fourteen, H.M. and her family, including St. Germain, moved to Lost Trail Hot Springs, Montana. H.M. was forced to take showers in the women's locker room of the hot springs because the trailer the family was living in did not have hot water. On more than one occasion while taking showers at the hot springs, St. Germain would enter the shower and have sexual intercourse with H.M.

¶ 10 At age sixteen, the family moved to Darby, Montana. While H.M.'s mother would be out of the house, St. Germain would often force H.M. to have sexual intercourse with him. At this point, St. Germain also forced H.M. to perform oral intercourse upon him. St. Germain further performed oral intercourse upon H.M.

¶ 11 In the end, St. Germain had sexually abused H.M., his stepdaughter, repeatedly between the ages of eleven and nineteen. Additional facts will be discussed where relevant.

¶ 12 The State filed an information charging St. Germain with "Charge One": four counts of incest, all felonies, in violation of § 45-5-507, MCA; and "Charge Two": four counts of sexual intercourse without consent, all felonies, in violation of § 45-5-503, MCA. St. Germain was represented by counsel, Kelli Sather, at all stages of the trial proceedings relevant to this appeal. St. Germain entered pleas of not guilty. A jury trial was held, and the jury found St. Germain guilty on all counts.

¶ 13 The District Court sentenced St. Germain to a term of one-hundred years, with twenty-five years suspended to be served at the Montana State Prison.

STANDARD OF REVIEW

¶ 14 Whether a criminal defendant's right to be present at the critical stages of his or her trial has been violated is a question of constitutional law, and our review of questions of constitutional law is plenary. State v. McCarthy, 2004 MT 312, ¶ 29, 324 Mont. 1, ¶ 29, 101 P.3d 288, ¶ 29. A district court is vested with broad discretion in ruling on the admissibility of expert testimony, and without a showing of abuse of discretion, the district court's ruling will not be disturbed on appeal. State v. Riggs, 2005 MT 124, ¶ 18, 327 Mont. 196, ¶ 18, 113 P.3d 281, ¶ 18; State v. Crawford, 2003 MT 118, ¶ 30, 315 Mont. 480, ¶ 30, 68 P.3d 848, ¶ 30; State v. Hocevar, 2000 MT 157, ¶ 54, 300 Mont. 167, ¶ 54, 7 P.3d 329, ¶ 54. Claims of ineffective assistance of counsel present mixed questions of law and fact that we review de novo. State v. Novak, 2005 MT 294, ¶ 15, 329 Mont. 309, ¶ 15, 124 P.3d 182, ¶ 15.

DISCUSSION

Issue 1.

¶ 15 Was St. Germain's right to be present at all critical stages of his trial violated?

¶ 16 St. Germain alleges his constitutional right to be present at all critical stages of his trial was violated when the District Court did not advise him of his right to question jurors regarding alleged conversations taking place between jurors, witnesses, and spectators to the trial.

¶ 17 The background to St. Germain's claims is as follows: On the second day of the trial, the parties met in chambers where defense counsel brought to the District Court's attention that Juror No. 7 had been seen speaking with H.M.'s biological father in the hallway next to the courtroom. St. Germain was present during the in-chambers discussion. H.M.'s father was not a witness in the trial, and the State's counsel expressed to the District Court that he would inform H.M.'s father to not have any sort of conversation with any of the jurors. The District Court was satisfied with this suggestion, defense counsel did not object, and the trial proceeded.

¶ 18 On the third day of trial in another in-chambers discussion, defense counsel again expressed concern that a lot of talk was going on in the hallways concerning the case and also, that the bailiff was speaking to a juror. The District Court then asked both defense counsel and St. Germain if they wanted to question the bailiff on the record concerning what had taken place. Both St. Germain and his defense counsel responded negatively. Defense counsel did, however, request the District Court to caution the jury regarding the conversations allegedly taking place. The District Court did so, instructing as follows:

All right. Before we begin, I would just like to mention again there's been some concern about witnesses and parties and attorneys and jurors mingling in our small area up here. I just want to emphasize again the need to be careful about talking to anybody who could be involved in the case or saying anything, even if it's innocent. If somebody sees something or hears something, they might get suspicious about it even if it is innocent. I would ask everybody to be poker-faced and quiet around participants. I would appreciate it.

Despite the cautionary instruction, defense counsel moved for a mistrial based on the hallway conversations and because witnesses allegedly had been speaking to each other regarding the case. The District Court denied the motion and proceeded with the trial. The District Court did not advise St. Germain he had any right to call Juror No. 7 into chambers to discuss any alleged conversations that took place and defense counsel did not make such an argument at trial.

¶ 19 The federal constitutional right to be present at all criminal proceedings is one of the most basic rights contained in the Confrontation Clause of the Sixth Amendment of the United States Constitution. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970). In Montana, the right of a criminal defendant to be present at his trial is expressly guaranteed by the Montana Constitution: "In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel . . ." Mont. Const. art. II, § 24. This Court recognized as early as 1922, when interpreting an identical provision of the 1889 Montana Constitution, that "the defendant must be present throughout the entire trial." State v. Reed, 65 Mont. 51, 56, 210 P. 756, 757 (1922) (emphasis added). This Court stated in Reed:

No principle of law, relating to criminal procedure, is better settled than that, in felony cases, nothing should be done in the absence of the prisoner. It is his unquestioned right "to be confronted with his accusers and witnesses." He has the legal right to be present when the jury are hearing his case, and at all times during the proceeding of the trial, when anything is done which in any manner affects his right . . ."

Reed, 65 Mont. at 58, 210 P. at 758 (citation omitted).

¶ 20 St. Germain urges us to apply our holding in State v. Bird, 2001 MT 2, 308 Mont. 75, 43 P.3d 266, to the facts herein. Bird involved a criminal trial where Bird, the defendant, was charged with partner or family member assault. At the trial, before voir dire began, the district court allowed the State to conduct individual voir dire examinations in the court's chambers of any prospective juror who had previous experience with domestic violence. During these examinations, the prosecutor and defense counsel were in attendance, but the defendant was not. Bird, ¶ 12. Neither the district court, the prosecutor, or defense counsel informed the defendant that "he had a constitutional right to be present during the individual questioning of the jurors." Further, the district court did not allow the defendant the opportunity to...