State v. Tome

• Decision Date: 14 September 2021
• Docket Number: DA 19-0257
• Parties: STATE of Montana, Plaintiff and Appellee, v. Richard Lee TOME, Defendant and Appellant.
• Court: Montana Supreme Court

405 Mont. 292

495 P.3d 54

STATE of Montana, Plaintiff and Appellee,

v.Richard Lee TOME, Defendant and Appellant.

DA 19-0257

Supreme Court of Montana.

Submitted on Briefs: May 5, 2021

Decided: September 14, 2021

For Appellant: Chad Wright, Appellate Defender, Moses Okeyo, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana, Joshua A. Racki, Cascade County Attorney, Carolyn H. Mattingly, Matthew Robertson, Deputy County Attorneys, Great Falls, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Richard Lee Tome was convicted by a jury in the Eighth Judicial District Court, Cascade County, of sexual intercourse without consent. The victim, T.C., was thirteen years old, deaf, and developmentally delayed. On the second day of trial, the State, unsure whether T.C. would be competent to testify, submitted a brief to support its introduction of hearsay testimony from five witnesses who would testify to what T.C. told them. Tome argued that the unavailability of the victim violated his right of confrontation, particularly because his defense was based on T.C.'s credibility and her inconsistent statements. After finding T.C. incompetent, the District Court declared a mistrial and scheduled a second trial. At the second trial, Tome objected to the five witnesses' hearsay testimony. He argued his right of confrontation was violated when his request to interview or depose T.C. prior to trial was denied and when he could not cross-examine T.C. during trial. We reverse, concluding Tome's constitutional right to confront his accusers was violated.

¶2 Although numerous issues are raised on appeal, we address the following dispositive issue:

Whether Tome's constitutional right to confront his accuser was violated when the District Court admitted multiple hearsay statements of the victim, including a recorded forensic interview, without Tome having an opportunity to cross-examine her.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Based upon the testimony from the first trial, the testimony of the five hearsay witnesses during the evidentiary hearing to determine their admissibility, and the testimony and evidence propounded during the second trial, we summarize the factual background as follows.

¶4 On November 3, 2016, T.C., who attended the Montana School for the Deaf and Blind (MSDB), became emotional and distraught in class, necessitating that her teacher take her to the school psychologist, Chris Gutschenritter. In the office, T.C. met with Gutschenritter and Yvette Smail, a behavioral specialist at MSDB, and told each that she wanted to talk about something that happened to her the previous day. T.C. relayed how, on November 2, 2016, a man named "Ricky" came over to her as she sat at the breakfast table in her home and knocked her out of her chair and onto the floor. The man pulled down her pants and T.C. then demonstrated what happened next by using the American Sign Language (ASL) gesture for sexual intercourse. T.C. used the gesture six times while saying "[h]urt, hurt, hurt, bleed, bleed, bleed." T.C., in contrast to her sometimes indirect manner, exhibited "eye-to-eye" contact with Gutschenritter and Smail and "was very serious." It appeared to the counselors that T.C. "wanted to get this out" and "make sure that [they] understood exactly what she was talking about." Gutschenritter and Smail reported T.C.'s disclosure to law enforcement.

¶5 Later that day, Officer John Marshall went to T.C.'s home and spoke with T.C. and her mother, Britanni, who was interpreting for her. Marshall and T.C. communicated through notes, gestures, and sign language. Marshall testified during trial that T.C. told him Tome lived with them¹ and, that when her mother left to do the laundry, Tome approached her while she was in her bed and showed her pornographic pictures of men and women having sex. Marshall testified that T.C. told him Tome "touched her left breast, grabbed her vagina, pulled her pants down, and then climbed on top of her, holding her down, and penetrated her vagina with his penis, having sex with her." Marshall testified that T.C. used gestures indicating Tome pulled her pants down and had sexual intercourse. T.C. told Marshall that after the incident she bled and had stomach and vaginal pain. Marshall gathered the bedding, which appeared to have blood stains on them.

¶6 On the night of November 3, 2016, T.C. was taken to the Benefis East Emergency Room for a sexual assault exam. A SANE nurse² , Kellie Wilborn, observed a laceration in T.C.'s vaginal area, vaginal tenderness, and redness. T.C. was still in pain but was cooperative. Wilborn testified at trial that T.C. told her "[h]e hurt me. He was on top of me. Why would he do that? I'm just a little girl." Wilborn testified that T.C. told her Tome pulled down her pants and had sex with her, threatened her with a spatula, and that the assault happened on the floor. T.C. also told Wilborn that she scratched Tome's arm.

¶7 On November 4, 2016, T.C. was taken to the Department of Public Health and Human Services (DPHHS) for a forensic interview. Kami Stone, a DPHHS child protection specialist, testified that she conducted a forensic interview of T.C. with the assistance of an ASL interpreter. The interview was taped and recorded. Stone testified that T.C. told her a man named Ricky had intercourse with her in the kitchen and that he showed her pictures of people having sex. Stone said T.C. told her what Ricky did was wrong and that it really hurt. Stone testified that T.C. described Ricky as old with brown and grey hair and said that he lived in her house. On cross-examination, Stone indicated that T.C. incorrectly stated her name was China and that Ricky was tall,³ but Stone testified that T.C. was clear when she told her that Ricky put his penis in her and used gestures indicating intercourse.

¶8 Officers submitted T.C.'s pink underwear, a pair of sweatpants, and the swab from the SANE examination to the crime lab for testing.

Male DNA was recovered from the underwear which did not match Tome, but it was not established that this was the pair of underwear T.C. was wearing when assaulted. Further, there was no testimony that the DNA was from sperm cells and there was no clarification at trial regarding the type of cells or where the cells came from. The DNA evidence was thus inconclusive.

¶9 Tome was later located and brought in for questioning, where he denied the incident occurred. The State charged Tome with sexual intercourse without consent by Information on November 17, 2016. While Tome was incarcerated, he told another inmate, Schoen Andersch, that he was in jail "for having sex without consent with a Jerry's Kid" and that he is going to get away with it "because he used a rubber." Andersch testified that Tome also told him that he showed the girl pictures of people having sexual intercourse. Andersch's testimony of what Tome told him was largely consistent with T.C.'s account of what happened.

¶10 On October 31, 2017, Tome filed a motion to depose T.C. under § 46-15-201(1)(c), MCA, which permits a deposition of a prospective witness if they are "unwilling to provide relevant information to a requesting party and the witness's testimony is material and necessary in order to prevent a failure of justice." The District Court denied his motion on December 20, 2017, concluding Tome did not meet his burden of demonstrating the victim's testimony was material and necessary to prevent a failure of justice. It also concluded that Tome was entitled to view any pretrial interviews the victim gave to law enforcement and would be able to fully cross-examine T.C. at trial.

¶11 A jury trial was held on April 9 and 10, 2018. On the morning of April 10, the court met with the parties and T.C.'s interpreter prior to T.C. testifying. Before T.C. was sworn in, the State filed a brief in support of its introduction of hearsay testimony from five witnesses describing what T.C. said to them about the offense. The State asserted that if T.C. were declared incompetent because of her developmental delays, she would be unavailable as a witness and the provisions of § 46-16-221, MCA,⁴ allowing for admission of hearsay testimony, should be applied. Tome responded that if T.C. was deemed incompetent, then he would move for a mistrial due to the State's inability to meet the requirements of the statute and the State's failure to provide notice as required by the statute. Tome referred to his request to depose T.C. and asserted that if she did not testify at trial, he would be tried without ever having an opportunity to cross-examine her. Although § 46-16-221(1)(e), MCA, required the State to give "sufficient notice to provide the adverse party with a fair opportunity to prepare[,]" the State maintained that Tome was able to gather information based on the forensic interview with T.C. and the DPHHS specialist (Stone). Tome subsequently asserted that the "distinguishing factor here" was that "without that notice, [he] fully expected to be able to cross-examine [T.C.] under Crawford v. Washington , and confront her, let the jury see that, and then do the impeachment of her in the eyes of the jury because this is an attack on credibility." 541 U.S. 36, 124 S. Ct. 1354, 158 L.Ed.2d 177 (2004). Tome's defense was centered around impeaching T.C. based on the inconsistencies in the statements T.C. made to each of the five witnesses.

¶12 Before T.C. took the stand, the District Court emphasized what needed to be established with respect to T.C.'s competency. "She's been brought here to tell the truth. And it's wrong to lie. And bad things can happen if you lie in a courtroom." T.C. endured a line of questioning centered around distinguishing between a truth and a lie:

Q: [Prosecutor]: If I told you that I'm a girl, is that true?

A: [T.C.]: You're a girl.

Q: If I told you that I don't have hair, is

...