State v. Wilson

• Decision Date: 18 January 2022
• Docket Number: DA 19-0584
• Parties: STATE of Montana, Plaintiff and Appellee, v. Nick Lenier WILSON, Defendant and Appellant.
• Court: Montana Supreme Court

502 P.3d 679

STATE of Montana, Plaintiff and Appellee,

v.Nick Lenier WILSON, Defendant and Appellant.

DA 19-0584

Supreme Court of Montana.

Submitted on Briefs: November 17, 2021

Decided: January 18, 2022

For Appellant: L. Amelia Swanson, Attorney at Law, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Brad Fjeldheim, Assistant Attorney General, Helena, Montana, William E. Fulbright, Ravalli County Attorney, Hamilton, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 A Ravalli County jury convicted Nick Lenier Wilson of Theft and Burglary for stealing merchandise from the Ravalli Services Corporation (RSC) donation intake center. He raises the following issues on appeal.

1. Did the District Court abuse its discretion when it ruled that F.Z., a developmentally disabled witness, was not competent to testify without examining F.Z. at the competency hearing?

2. Did the District Court err when it excluded, as improper character evidence, testimony that Wilson applied for a job at a motel one year before committing the charged offenses?

3. Did the District Court abuse its discretion when it permitted the State to call a rebuttal witness in violation of the court's Rule 615 order?

We affirm the District Court's rulings.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Unemployed for several years, Wilson performed odd jobs, such as snow removal and cleaning, in Hamilton, Montana. He often worked without the expectation of pay, hoping that someone would hire him. According to Wilson, he sometimes volunteered at RSC, a nonprofit corporation that provides services for individuals with developmental, intellectual, and physical disabilities. RSC operates a thrift store in Hamilton, where it sells donated merchandise to raise money for its clients. RSC accepts donations through its intake center. When RSC receives defective merchandise, it either repairs and sells it or discards it.

¶3 Wilson claims that on March 14, 2018, he helped F.Z., a developmentally disabled client and employee of RSC, discard some junk at the intake center. While he was there, Wilson noticed water puddles inside the intake center due to heavy rainfall that week. He purportedly offered to clean the puddles but was told he could not clean during business hours. According to Wilson, he left the intake center between 3:30 p.m. and 4:00 p.m. Believing he had permission to clean the puddles after 5:00 p.m., Wilson returned to the intake center at about 1:00 a.m. on March 15 and entered through the back door, which he claims was left unlocked for him. While there alone, he stashed several donated items, including electronics, recreation equipment, and clothes, outside the intake center. Shortly after 3:30 a.m., he walked to the home of his girlfriend, Tiva Merson, and borrowed her van. Wilson returned to the intake center at around 4:00 a.m. and loaded the stashed items into Merson's van. The merchandise he took totaled less than $1,500 in value. He stored most of the stolen goods in Merson's garage and gifted many of the items to Merson and her children in the ensuing days.

¶4 The State charged Wilson with felony burglary under § 45-6-204, MCA, and with misdemeanor theft under § 45-6-301, MCA. Since the beginning of the investigation, Wilson has admitted to stealing the items from the intake center. His defense strategy was that, although he committed theft, he did not commit burglary because he was authorized to clean the intake center. To support this theory, Wilson planned to call F.Z. as a witness. The court, however, granted the State's motion in limine to exclude F.Z. from testifying on the ground that he lacked the capacity to serve as a witness.

¶5 The State's theory of the case was that Wilson was an unemployed drug user who undermined and took advantage of the developmentally disabled clients and employees of RSC. At trial, the State played surveillance camera footage that showed Wilson moving items around the intake center and behaving erratically. The videos showed that Wilson never turned on any lights, even though he spent approximately three hours rummaging through donated merchandise. Officer Scoggins of the Hamilton Police Department testified that the video showed Wilson ducking and crouching, ostensibly to avoid being seen through the windows. Wilson testified that he was crouched down cleaning the water damage with rags he found in the intake center. Because of prior damage to the intake center's doors, the police could not determine whether Wilson's entry was forced, and the security footage was inconclusive. Jason Garrard, who oversees information technology and internal investigations for RSC, testified that the video footage showing the power with which Wilson opened the door suggested that he forced it open. The State also played a video of Wilson's interview with Detective Altschwager, in which Wilson admitted to stealing the merchandise and to using drugs that day.

¶6 Wilson testified on his own behalf and called two witnesses: Merson and Deborah Dubois Porter (Dubois Porter). Merson testified to Wilson's tendency to work unpaid odd jobs in Hamilton and corroborated some parts of his testimony. Dubois Porter testified that Wilson applied for employment at the City Center Motel in 2017, but the court struck her testimony as improper character evidence.

¶7 The jury convicted Wilson of theft and burglary, and the court sentenced him to twenty years in prison, noting among other factors his extensive criminal history.

STANDARD OF REVIEW

¶8 We review evidentiary rulings for an abuse of discretion, "which occurs when a district court acts arbitrarily without conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice." State v. Ellison , 2018 MT 252, ¶ 8, 393 Mont. 90, 428 P.3d 826 (citations omitted). We review de novo a district court's interpretation of the Montana Rules of Evidence. Ellison , ¶ 8 (citations omitted).

DISCUSSION

¶9 1. Did the District Court abuse its discretion when it determined that F.Z. was not competent to testify?

¶10 Before trial, the State moved in limine to exclude F.Z. from testifying. The State attached to its motion an affidavit of Rebecca Merfeld, F.Z.’s targeted case manager, who attested that F.Z. was not a competent witness because he could not understand his duty to tell the truth. Wilson opposed the motion, and the District Court set a competency hearing for January 29, 2019. In the meantime, the State submitted a court-ordered report by Dr. Gerry D. Blasingame, titled "[F.Z.’s] competence to testify in Court." Dr. Blasingame based his report on an unrelated July 2018 evaluation of F.Z. and "approximately 200 pages of [F.Z.’s] case documentation" that he reviewed in preparing the report. Dr. Blasingame opined that F.Z. did not have the capacity to serve as a witness in court. Dr. Blasingame reported that F.Z. experiences "hallucinations and delusions"; "impaired reality contact, preservation, disorganized thinking, and loose associations"; and impaired long-term memory. Because of his mental illness, F.Z. believes many false things to be true, and his "ability to understand the abstract concept of ‘duty’ or moral responsibility to tell the truth is compromised[.]" Dr. Blasingame also estimated F.Z.’s mental age to be ten or eleven years old. Dr. Blasingame was not present at the competency hearing, however, and could not be examined by defense counsel. The State suggested that the court interview F.Z. to determine F.Z.’s competency, and defense counsel did not object. The court declined, remarking:

My comfort level with interviewing a 10-year-old and assessing their ability ... is very different than interviewing somebody who has deficits and incapacity issues and functions as a 10-year-old. So I'm inclined to rely more on the doctor's report than substitute my own judgment .... I am also extremely sensitive to what the doctor says about [F.Z.] getting agitated or nervous or concerned, and I would try to make it as easy as I could, but I just don't need to get him agitated.

The court continued the competency hearing to give defense counsel an opportunity to confer with Dr. Blasingame. The court held a status hearing on March 14, 2019, after defense counsel had spoken to Dr. Blasingame. Wilson argued that Dr. Blasingame should interview F.Z. again, this time for the specific purpose of determining his ability to testify. The court stated that Dr. Blasingame's report was sufficient to support a finding that F.Z. was incompetent to testify:

Asking Dr. Blasingame to review [F.Z.] more to me is equivalent of going and getting an expert to give you a different opinion. I'm looking at Dr. Blasingame's report, and he says, "This writer opines that [F.Z.’s] mental illness and cognitive impairments are such that they undermine his capacity to serve as a witness in a court of law." I think he answered the question.

...

[I]f you want him evaluated again more thoroughly by Dr. Blasingame or somebody else, you're welcome to do that, but it's not going to be on the state's dime.

The court granted the State's motion in limine. A week later, at defense counsel's request, Dr. Blasingame interviewed F.Z. again. He submitted a second report, again concluding that F.Z. was not competent to testify.

¶11 "We review a district court's ruling on witness competency for abuse of discretion." State v. Longfellow , 2008 MT 343, ¶ 9, 346 Mont. 286, 194 P.3d 694 (citation omitted). Generally, "[e]very person is competent to be a witness except as otherwise provided in these rules." M. R. Evid. 601(a). A witness may be disqualified, however, if the court finds that the person "is incapable of expression concerning the matter ... [or] the witness is incapable of understanding the duty of a witness to tell the truth." M. R. Evid. 601(b). The Commission Comments make clear that the rule does not categorically exclude a person "of unsound mind" from testifying; the inquiry, rather, is whether the...