March 4 2014
DA 12-0640
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 57
STATE OF MONTANA,
Plaintiff and Appellee,
v.
PAULETTE HOMER,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 11-194
Honorable Karen Townsend, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Colin M. Stephens, Smith & Stephens, P.C.; Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; Mardell Ployhar, Assistant
Attorney General; Helena, Montana
Fred R. Van Valkenburg, Missoula County Attorney; Jennifer Clark, Deputy
County Attorney; Missoula, Montana
Submitted on Briefs: February 5, 2014
Decided: March 4, 2014
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Paulette Homer appeals from her January 13, 2012 conviction for the offense of
exploiting an older person, a felony, pursuant to § 52-3-825, MCA.
¶2 The sole issue on appeal is whether the District Court erred by refusing to admit at the
bench trial of this charge, a transcript of the victim’s testimony at a prior competency
hearing. We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 In May 2011 the State charged Homer with exploiting an older person pursuant to
§ 52-3-825, MCA. The charge concerned Homer’s aged mother who, at Homer’s behest,
obtained a reverse mortgage on her home. Homer used the entire proceeds of approximately
$141,000 to pay her own debts. The District Court conducted a bench trial in January 2012
and found Homer guilty at the close of testimony on January 13, 2012. In August 2012 the
District Court sentenced Homer to 10 years in the custody of the Department of Corrections,
suspended, and ordered her to pay restitution of $100,000.
¶4 On January 3, 2012, prior to the commencement of the bench trial in this case, the
District Court held a hearing on the competency of the victim to testify at the upcoming trial.
The victim was sworn and testified briefly, responding to questions from the attorneys for
each side. At the conclusion of the testimony the District Court determined that the victim
was competent to testify. However, by the time of trial the victim’s health had deteriorated
to the extent that she was unable to testify. At trial Homer asked the District Court to take
judicial notice of the transcript of the victim’s testimony as substantive evidence. After
hearing argument on the issue the District Court denied Homer’s request.
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¶5 The District Court determined that the victim’s competency hearing did not pertain to
the issues in the trial of the charge against Homer, in particular to the question of the victim’s
mental capacity at the time of the charged offense. Homer appeals, requesting that this Court
reverse her conviction and remand for a new trial to include the victim’s testimony at the
competency hearing.
STANDARD OF REVIEW
¶6 A district court has broad discretion to determine the relevancy and admissibility of
evidence, and this Court will not overturn evidentiary rulings absent a showing of abuse of
discretion. State v. Lotter, 2013 MT 336, ¶ 13, 372 Mont. 445, 313 P.3d 148; State v.
Berosik, 2009 MT 260, ¶ 28, 352 Mont. 16, 214 P.3d 776. We review a district court’s
application of a statute or rule of evidence de novo to determine whether the application is
correct. Lotter, ¶ 13. A court abuses its discretion if it acts arbitrarily without employment
of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.
State v. Breeding, 2008 MT 162, ¶ 10, 343 Mont. 323, 184 P.3d 313.
DISCUSSION
¶7 At the bench trial in this case Homer requested during her case-in-chief that the
District Court take judicial notice of the testimony of the victim, given at the prior hearing
held to determine whether the victim was competent to testify. Defense counsel represented
that since the competency hearing had been held the victim had become incapable of
testifying and was therefore an unavailable witness. Defense counsel argued the relevancy
of the victim’s “limited testimony” about her understanding of reverse mortgages, while
acknowledging that “both sides did not have an opportunity to fully explore the issues for
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purposes of trial.” The State objected because the prior proceeding had dealt only with the
victim’s competency and that they would have examined the victim more thoroughly and on
other issues if they had known that the testimony would be offered at trial. The District
Court denied the request to include the competency hearing transcript as evidence in the trial
on the merits of the charge, concluding that the testimony at the competency hearing “does
not really go sufficiently to the issues that are before this Court.”
¶8 A court may take judicial notice of the records of any court of this state, M. R. Evid.
202(b)(6). That includes prior proceedings in other cases, Farmers Plaint Aid v. Fedder,
2000 MT 87, ¶¶ 26-27, 299 Mont. 206, 999 P.2d 315, and prior proceedings in the same
case, State v. Loh, 275 Mont. 460, 477-48, 914 P.2d 592, 603 (1996). In the Loh case, this
Court upheld admission in a bench trial of the evidence from a prior suppression hearing in
the same case. The State had “presented its case-in-chief at the suppression hearing,” and the
defendant was present with counsel. Loh, 275 Mont. at 477-78, 914 P.2d at 603.
¶9 Both sides in the present case agree that the testimony at the prior competency hearing
was hearsay under M. R. Evid 802. Homer contends that the testimony was nevertheless
admissible under M. R. Evid. 804(b)(1), which provides a hearsay exception for prior
testimony if the declarant is unavailable and “if the party against whom the testimony is now
offered had an opportunity and similar motive to develop the testimony by direct, cross and
redirect examination.” The standard for admitting such evidence is whether the objecting
party had the motive to conduct the same examination as he would at trial if the witness were
available at that time. United States v. Salerno, 937 F.2d 797, 806 (2nd Cir. 1991). Homer
contends that the District Court applied the wrong legal standard by rejecting the
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competency hearing evidence because it did not “go sufficiently to the issues.” However, it
is clear that the District Court was applying Rule 804(b)(1), agreeing with the State that it
did not have a similar motive to develop testimony at the competency hearing as it would at
trial.
¶10 Unlike the Loh case, neither side here “presented its case-in-chief” at the prior
competency hearing. To the contrary, the victim’s testimony at the competency hearing was
narrowly elicited to determine whether she was capable of expression concerning the case,
and whether she understood the duty to tell the truth as provided in M. R. Evid. 601(b). The
testimony elicited from her was brief and general, and while each side was present and
examined the witness, neither had the same interest in that proceeding as they did in the later
trial on the merits. Defense counsel correctly acknowledged at trial that “both sides did not
have an opportunity [at the competency hearing] to fully explore the issues for purposes of
trial.” If either side had participated in the competency hearing with the same interest as at
trial, the victim would have been much more thoroughly examined and cross-examined than
she was. Because there were substantially different motives and interests in the competency
hearing, the District Court properly applied M. R. Evid. 804(b)(1) and rejected the offer of
the prior testimony.
¶11 Homer contends that the victim’s prior testimony should have been admitted because
the victim was not available to testify, and her prior testimony was a statement against
interest. The Montana Rules of Evidence provide for an exception to hearsay exclusion for a
statement which was at the time of its making so far contrary to the declarant’s
pecuniary or proprietary interest, or so far tended to subject the declarant to
civil or criminal liability, or to render invalid a claim by the declarant against
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another or to make the declarant an object of hatred, ridicule, or disgrace, that
a reasonable person in the declarant’s position would not have made the
statement unless the declarant believed it to be true.
M. R. Evid. 804(b)(3).
¶12 The State contends that Homer waived this issue by not raising it in the District Court,
and that she has not offered any material argument that would bring the victim’s prior
testimony within M. R. Evid. 804(b)(3). The State is correct on both grounds. This Court
generally does not consider arguments made for the first time on appeal, Lotter, ¶ 30, and
Homer has not made an argument that this un-preserved claim should be reviewed. The
victim’s general statements about the nature of reverse mortgages and her intention to give
money to her children if they needed it were not in any way statements against interest so as
to be admissible under M. R. Evid. 804(b)(3).
¶13 Homer contends that exclusion of the victim’s prior testimony infringed her right to
present a defense to the charges against her. A defendant is entitled under the United States
Constitution to a meaningful opportunity to present a complete defense to a criminal charge.
Holmes v. South Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 1731 (2006); State v. Jay,
2013 MT 79, ¶ 32, 369 Mont. 332, 298 P.3d 396. That right can be improperly abridged by
state evidentiary rules that categorically exclude crucial defense evidence without giving the
trial court the discretion to admit the evidence when relevant. Jay, ¶ 33.
¶14 The State contends that Homer failed to preserve this issue by not raising it in the
District Court, and that exclusion of the prior testimony did not impermissibly infringe upon
Homer’s right to present a complete defense.
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¶15 Here, the District Court did not reject the prior testimony based upon a categorical
rule of evidence, and did not act with little or no justification. To the contrary, the District
Court properly applied M. R. Evid. 804(b)(1), determining that the prior testimony was not
sufficiently reliable to come within the offered exception to the rule excluding hearsay. This
is a general rule, virtually identical to the comparable Federal Rule of Evidence, designed to
ensure adversarial fairness as to the party against whom the evidence is offered and on its
face favors neither side. Jay, ¶¶ 33-34 (exclusion of expert testimony did not infringe on the
right to present a defense because the ruling was rationally related to the goal of requiring
that expert testimony has a logical connection to the issues). As discussed above, this was a
proper exercise of judicial discretion and a proper application of the established rule of
evidence.
¶16 For the reasons discussed above, the conviction is affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ BETH BAKER
/S/ JIM RICE
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
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