State v. Walton
| Decision Date | 18 February 2014 |
| Docket Number | No. DA 13–0191.,DA 13–0191. |
| Citation | 318 P.3d 1024,374 Mont. 38 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. David Jay WALTON, Defendant and Appellant. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
For Appellant: Joseph P. Howard, Attorney at Law, Great Falls, Montana.
For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K. Plubell, Assistant Attorney General, Helena, Montana, William Fulbright, Ravalli County Attorney, Hamilton, Montana.
¶ 1 David Jay Walton (Walton) appeals from the Judgment entered by the Twenty–First Judicial District Court on his conviction and sentence for the offense of sexual assault, a felony, in violation of § 45–5–502, MCA. We affirm and address the following issues:
¶ 2 1. Did the prosecutor commit plain error by commenting on witness credibility during closing argument?
¶ 3 2. Did the District Court err by denying Walton's motion for a new trial after the court sua sponte questioned a key defense witness?
¶ 4 J.L. is the biological mother of K.T., J.B., and A.B. J.L. and Walton became romantically involved in 2008, and lived together off-and-on again for several years. During 2011, Walton resided with J.L. and her three children in Darby. On the evening of December 15, 2011, K.T., eleven years old, watched television with her family and then went to bed. K.T. testified that at some time during the night, she awoke to Walton “plopping down” on her bed and kissing her on the lips. J.B., K.T.'s older half-brother, testified that he heard Walton enter K.T.'s room and say, “I'm sleeping in here” or “I'm sleeping with you.” K.T. explained that she eventually managed to fall back asleep, but was again awoken when Walton got out of her bed to use the restroom. When he returned, Walton lay down next to K.T. and began to rub her leg. He lifted K.T.'s shirt and touched her chest but not her breasts. Walton then began to rub K.T.'s “lower area,” which, she testified, felt “bad.” During the incident, Walton was “grunt[ing]” and the bed was shaking slightly. He stopped and left the room when J.L. coughed and turned on the hallway light.
¶ 5 In the morning, Walton and J.L. left for work together. Within ten minutes, K.T. disclosed the events of the previous night to J.B. and asked him what the difference was between being “raped and molested.” The two children did not discuss the incident further on their way to school, but later that morning, J.B. contacted the school counselor and informed him of K.T.'s disclosure. Shortly thereafter, Deputy Jon Moles of the Darby Marshal's Office was dispatched to the Darby school to investigate K.T.'s sexual assault allegation. Deputy Moles interviewed J.B. and then drove to Walton's place of employment to interview him as well. K.T. was sent to the First STEP Resource Center at St. Patrick's Hospital in Missoula to undergo a forensic interview with Mary Pat Hansen (Hansen).
¶ 6 The State subsequently charged Walton with two counts of felony sexual assault in violation of § 45–5–502, MCA. At trial, Walton relied on the defense theory that J.B. pressured K.T. into fabricating the sexual assault allegation in order to get him out of the family's home. He testified that J.B. resented his authority and described their relationship as “incredibly difficult.” J.L., the children's mother, supported Walton's defense theory and testified on his behalf. At the outset of her testimony, J.L. stated the first and last names of each of her three children. Each of the children has a different father and, thus, a different last name. After J.L. concluded, the District Court engaged her in the following line of questioning:
Following this exchange, the court provided both parties the opportunity to further question J.L., but they declined, and the witness was excused.
¶ 7 Hansen testified about her forensic interview with K.T. and the subsequent medical evaluation she performed. Hansen stated that her medical evaluation did not reveal any significant physical findings, but explained that her conversation with K.T. caused her to believe “that [K.T.'s] statements [were] consistent with a child who has experienced sexual abuse.” As a result, Hansen recommended that K.T. undergo therapy.
¶ 8 During closing argument, the prosecutor referenced K.T.'s and Hansen's testimony to argue extensively that K.T. had experienced sexual abuse:
The sexual assault that [K.T.] experienced, I think it's interesting how Ms. Hansen, Mary Pat Hansen, with all of her background, hundreds of kids she's interviewed, hundreds of kids she's worked with, and the way that she expresses her opinion, the way she expresses that expert opinion is that what [K.T.] disclosed to her was consistent with a child who has experienced sexual assault. Not consistent with some story of sexual assault, not consistent with a version of sexual assault; consistent with an experience of sexual assault....
...
What is it you are seeing, this is someone who experienced something as opposed to someone who is simply trying to tell a story.
...
But she knew what happened because she had experienced it. He kissed me.
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The sensations that she's able to describe are not made up. They are experienced.
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And he said she's struggling with what all this means because she experienced it.
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Five months later she described the same experience. Here we are roughly five months after that, she sat in here and described the same experience. This is an 11–year old girl that the Defendant would have you believe is maintaining a complex, rather—for 11, a rather sophisticated experience that whole time.
...
[J.B.] tells what he experienced. Because the next thing he experiences is a few hours later when his sister comes to him and says, Hey, they are playing the Wii, getting ready for school, whatever, not asking her mom, not asking her sister, she asks her brother. Tell me what the difference is between rape and molesting because I think one of those happened to me.
... But everything else came from [K.T.] because she experienced it. She talked about it.
The prosecutor continued during rebuttal closing:
They are asking an 11–year–old girl to maintain a complex, sophisticated, two levels—someone told her what to say, meaning [J.B.] told her what to say. She was able then to turn around and say it with enough sophistication, complexity, sensations, all the things that she would be expected to be able to say if she experienced it.
...
It doesn't make any sense. He just—[K.T.] was sexually assaulted.
¶ 9 The jury convicted Walton on one count of sexual assault and acquitted him of the other count. He moved for a new trial pursuant to § 46–16–702, MCA, but the District Court denied his motion. Walton was sentenced to a state prison designated by the Department of Corrections for a period of twenty years, with ten years suspended on conditions. Walton appeals.
¶ 10 “We generally ‘do not address issues of prosecutorial misconduct pertaining to a prosecutor's statements not objected to at trial.’ ” State v. Aker, 2013 MT 253, ¶ 21, 371 Mont. 491, 310 P.3d 506 (quoting State v. Longfellow, 2008 MT 343, ¶ 24, 346 Mont. 286, 194 P.3d 694). However, we may review such an issue under the plain error doctrine. Aker, ¶ 21 (citation omitted). Plain-error review is appropriate only in those “ ‘situations that implicate a defendant's fundamental constitutional rights when failing to review the alleged error may result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the proceedings, or compromise the integrity of the judicial process.’ ” State v. McDonald, 2013 MT 97, ¶ 8, 369 Mont. 483, 299 P.3d 799 (citations omitted). Plain-error review is discretionary and is applied sparingly on a case-by-case basis. McDonald, ¶ 8 (citations omitted).
¶ 11 We review a district court's denial of a motion for a new trial for abuse of discretion. State v. Ugalde, 2013 MT 308, ¶ 26, 372 Mont. 234, 311 P.3d 772 (citations omitted).
¶ 12 1. Did the prosecutor commit plain error by commenting on witness credibility during closing argument?
¶ 13 “Both the Sixth Amendment of the United States Constitution and Article II, Section 24 of the Montana constitution guarantee criminal defendants the right to a fair trial by a jury.” State v. Hayden, 2008 MT 274, ¶ 27, 345 Mont. 252, 190 P.3d 1091. Prosecutorial misconduct “ ‘may be grounds for reversing a conviction and granting a new trial if the conduct deprives the defendant of a fair and impartial trial.’ ” McDonald, ¶ 10 (quoting Hayden, ¶ 27). However, this Court “ ‘will not presume prejudice from the alleged misconduct, rather the defendant must show that the argument violated his substantial rights.’ ” McDonald, ¶ 10 (quoting State v. Makarchuk, 2009 MT 82, ¶ 24, 349 Mont. 507, 204 P.3d 1213). We evaluate a prosecutor's statements during closing argument in the context of the argument as a whole. Ugalde, ¶ 62 (citation omitted). “A prosecutor's argument is not plain error if made in the context of...
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