State v. T. Mercier

01/26/2021

DA 18-0006
Case Number: DA 18-0006

IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 12

STATE OF MONTANA,

Plaintiff and Appellee,

v.

TREVOR JOSEPH MERCIER,

Defendant and Appellant.

APPEAL FROM: District Court of the Nineteenth Judicial District,
In and For the County of Lincoln, Cause No. DC 16-110
Honorable Matthew J. Cuffe, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Koan Mercer (argued), Assistant
Appellate Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Michael P. Dougherty
(argued), Assistant Attorney General, Rob Cameron, Deputy Attorney
General, Helena, Montana

Marcia Jean Boris, Lincoln County Attorney, Libby, Montana

Argued and Submitted: October 14, 2020

Decided: January 26, 2021

Filed:

cir-641.—if
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1 Trevor Joseph Mercier appeals his convictions after jury trial in the Nineteenth

Judicial District Court, Lincoln County, of Deliberate Homicide and Tampering with

Physical Evidence. We affirm in part and reverse in part, stating the issues as follows:

1. Was Mercier denied his right under the United States and Montana
Constitutions to confront witnesses against him when the State presented a
foundational witness in real time by two-way videoconference?

2. If so, did the State meet its burden to demonstrate the error was harmless as to
the Deliberate Homicide conviction and the Tampering with Physical Evidence
conviction?

3. Did the prosecutor commit plain error during the closing argument?

We conclude Mercier’s right of confrontation was violated, requiring reversal of his

conviction of Tampering with Physical Evidence. We affirm his Deliberate Homicide

conviction.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Mercier and Sheena Devine were in a relationship that ended in early 2016. On the

evening of October 5, 2016, an intoxicated Mercier went to Sheena’s residence and began

to pelt her vehicle with rocks. At 9:42 p.m., neighbors placed a 911 call to report the

vandalism. A sheriff’s deputy was dispatched to the scene, but Mercier had fled prior to

his arrival. The deputy spoke with Sheena and advised her to report any further

disturbances to authorities.

¶3 Sometime between 10 p.m. and 11 p.m., Mercier returned to Sheena’s residence and

again threw rocks at her vehicle. Instead of contacting police, Sheena went outside and

2
confronted Mercier. According to Mercier, Sheena physically attacked him, striking and

scratching his face and head. Mercier contended he placed Sheena in a “sleeper hold” to

thwart her attack, resulting in Sheena losing consciousness. According to Mercier, he

carried Sheena into her living room and laid her down, and, after checking that she was

still breathing, left within five to ten minutes. Mercier stated Sheena was breathing and

snoring when he left.

¶4 At approximately 10 o’clock the next morning, October 6, Lincoln County Sheriff’s

dispatch received a call requesting medical assistance for a possible assault. The call was

placed by Sheena’s friend and neighbor who had stopped by Sheena’s residence. An

emergency medical technician arrived first and determined that Sheena had died. The EMT

immediately contacted dispatch requesting expedited law enforcement support, and Officer

Scott Kessel quickly proceeded to the scene. Kessel found the EMT, the friend who had

placed the 911 call, and Sheena’s two young daughters, along with her body, which was

lying on the floor between a couch and rocking chair. Sheena’s two-year-old daughter was

sitting atop her discolored body, and her four-year-old daughter paced aimlessly. Sheena

had sustained physical injuries, with heavy bruising above her right eye and large abrasions

to her chin and right cheek. Police discovered Sheena’s cellphone submerged in a pot of

greasy water in the kitchen sink.1

1
During the investigation, police found a petition for an order of protection on Sheena’s kitchen
table. Mercier was previously arrested for assaulting Sheena in February 2016. Sheena had
previously obtained an order of protection against Mercier, but it was not in effect at the time of
this incident.

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¶5 Mercier was taken into custody and interviewed, after which he was charged with

three criminal offenses: Criminal Mischief for damaging Sheena’s car by throwing rocks,

Deliberate Homicide, and Tampering with Physical Evidence related to Sheena’s

submerged phone. Mercier pled guilty to Criminal Mischief, but not guilty to the other

two counts. Mercier would defend by claiming Sheena’s death was accidental and that he

had not handled her phone.

¶6 Investigators removed Sheena’s phone from the greasy water and found, somewhat

remarkably, that it remained operational. However, local technicians struggled to retrieve

information from the device, and it was delivered to Special Agent Brent Johnsrud of the

Department of Homeland Security, Greeley, Colorado, who specialized in extracting data

from electronics. Johnsrud was able to extract and analyze the phone’s data, and prepared

a written report of his findings.

¶7 Prior to trial, the State moved for leave to call Johnsrud to testify from Colorado by

live two-way video. As grounds, the State offered that the $670 for roundtrip air travel and

other travel expenses for purely foundational testimony was impractical. Mercier’s

objection was overruled by the District Court, and Johnsrud testified via two-way

videoconferencing. Johnsrud’s testimony addressed the methods and equipment employed

to retrieve the data from the cellphone, among other foundational purposes. He testified

that in order to extract data from mobile devices, a forensic examiner must “at least be able

to power on the device,” and that “the raw data extraction” he had completed and provided

to Agent Kevin McCarvel of the Montana Department of Justice was “an exact copy of

4
what was contained on the device.” Then, Agent McCarvel testified regarding Johnsrud’s

report of the phone’s contents, particularly, two time-stamped photographs retrieved from

the phone.

¶8 Mercier asked the jury, consistent with his version of incident, to find him guilty of

Negligent Homicide rather than Deliberate Homicide. To counter this position, the State

presented a neighbor who testified to seeing Mercier inside Sheena’s residence around

midnight. Although the medical examiner was unable to determine a specific time of death,

this evidence indicated that Mercier was still in the house one hour after the physical

altercation, contrary to Mercier’s account. The State also offered two photographs from

Sheena’s phone, one of which was solid black, and the other a blurry image of Sheena’s

kitchen. The photographs were timestamped at 12:00:20 a.m. and 12:00:21 a.m. The angle

at which the kitchen photograph was taken made it improbable that it was taken by

Sheena’s daughters. The photographs were the only evidence offered that Mercier had

handled the phone that evening.

¶9 During closing argument, defense counsel, in an apparent attempt to reconcile errors

and omissions in Mercier’s recollection of events, repeatedly compared Mercier’s

“mistake” in his initial account to law enforcement to “forgetting the eggs” during a trip to

the grocery store. Possibly confused by the analogy, but in light of Mercier’s position that

he should be found guilty of only Negligent Homicide, prosecutors inferred from this

argument that the “mistake” alluded to by defense counsel was the “mistake” of killing

Sheena. Defense counsel also employed another grocery parallelism, comparing Mercier’s

5
lifting of Sheena’s unconscious body to “wrap[ping] your arm around essentially what is

going to be a very large amount, something similar to almost three bags of potatoes, if not

more.” In response, the prosecutor stated in rebuttal that “Sheena Devine’s life was worth

more than eggs on a grocery list and three bags of potatoes. And you should be appalled

that the value of her life apparently escapes [defense counsel], just as the value of her life

to her children and her family was disregarded by Trevor Mercier on the night of October

fifth.” Mercier did not object to these comments.

¶10 Mercier was convicted of the Deliberate Homicide and Tampering with Physical

Evidence charges, and appeals.

STANDARD OF REVIEW

¶11 This Court exercises plenary review of constitutional questions and applies de novo

review to a district court’s constitutional interpretations of the Sixth Amendment of the

United States Constitution and Article II, Section 24 of the Montana Constitution. State v.

Stock, 2011 MT 131, ¶ 16, 361 Mont. 1, 256 P.3d 899 (citing State v. Norquay, 2011 MT

34, ¶ 13, 359 Mont. 257, 248 P.3d 817).

¶12 All other legal conclusions of law are evaluated for correctness subject to de novo

review. City of Missoula v. Duane, 2015 MT 232, ¶ 10, 380 Mont. 290, 355 P.3d 729.

Evidentiary rulings are reviewed for an abuse of discretion. Duane, ¶ 10. Abuse of

discretion occurs if the district court acted arbitrarily and without the employment of

conscientious judgment or in a manner that exceeds the bounds of reason, resulting in

6
substantial injustice. Stock, ¶ 17 (citing State v. Mackrill, 2008 MT 297, ¶ 37, 345 Mont.

469, 191 P.3d 451).

¶13 We generally do not address “‘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 issues under the plain error doctrine. State v. Lehrkamp,

2017 MT 203, ¶ 11, 388 Mont. 295, 400 P.3d 697 (citing State v. Walton, 2014 MT 41,

¶ 10, 374 Mont. 38, 318 P.3d 1024).

DISCUSSION

¶14 1. Was Mercier denied his right under the United States and Montana Constitutions
to confront witnesses against him when the State presented a foundational witness
in real time by two-way videoconference?

¶15 The Confrontation Clause of the Sixth Amendment of the United States Constitution

provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” U.S. Const. amend. VI. The Montana

Constitution provides that “[i]n all criminal prosecutions the accused shall have the

right . . . to meet the witnesses against him face to face[.]” Mont. Const. art. II, § 24.

¶16 In its earliest case interpreting the Clause, the Supreme Court explained:

The primary object of the constitutional provision in question was to prevent
depositions or ex parte affidavits, such as were sometimes admitted in civil
cases, being used against the prisoner in lieu of a personal examination and
cross-examination of the witness in which the accused has an opportunity,
not only of testing the recollection and sifting the conscience of the witness,
but of compelling him to stand face to face with the jury in order that they
may look at him, and judge by his demeanor upon the stand and the manner
in which he gives his testimony whether he is worthy of belief.
7
Mattox v. United States, 156 U.S. 237, 242-43, 15 S. Ct. 337, 339 (1895). The Supreme

Court has since summarized the purpose of the Confrontation Clause as “ensur[ing]

reliability of the evidence against a criminal defendant by subjecting it to rigorous testing

in the context of an adversary proceeding,” a purpose that is fulfilled by “‘guarantee[ing]

the defendant a face-to-face meeting with witnesses appearing before the trier of fact.’”

Maryland v. Craig, 497 U.S. 836, 844, 110 S. Ct. 3157, 3162-63 (1990) (quoting Coy v.

Iowa, 487 U.S. 1012, 1016, 108 S. Ct. 2798, 2801 (1988)); see also Coy, 487 U.S. at 1019,

108 S. Ct. at 2801 (“It is always more difficult to tell a lie about a person ‘to his face’ than

‘behind his back.’ . . . [E]ven if a lie is told, it will often be told less convincingly.”);

California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935 (1970) (referring to

cross-examination as “the greatest legal engine ever invented for the discovery of truth”

(citation omitted)). These elements of confrontation serve the purposes of the

Confrontation Clause “by ensuring that evidence admitted against an accused is reliable

and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal

proceedings.” Craig, 497 U.S. at 846, 110 S. Ct. at 3163 (citing Kentucky v. Stincer, 482

U.S. 730, 739, 107 S. Ct. 2658, 2664 (1987)).

¶17 Within these constitutional principles, the Supreme Court has also recognized that

physical face-to-face confrontation “is not the sine qua non of the confrontation right,” and

has carved out certain exceptions. Craig, 497 U.S. at 847, 110 S. Ct. at 3164 (citing

Delaware v. Fensterer, 474 U.S. 15, 22, 106 S. Ct. 292, 295-96 (1985) (per curiam));

Craig, 497 U.S. at 850, 110 S. Ct. at 3166 (“[I]t is all but universally assumed that there
8
are circumstances that excuse compliance with the right of confrontation.”) (quoting

Kenneth W. Graham, Jr., The Right of Confrontation and the Hearsay Rule: Sir Walter

Raleigh Loses Another One, 8 Crim. L. Bull. 99, 107-108 (1972)); see Stock, ¶ 28 (“[W]e

have never interpreted greater protection to entitle a criminal defendant to literal

face-to-face confrontation with all witnesses.” (original emphasis)). In Craig, the Supreme

Court affirmed a Maryland court that, pursuant to a state statute, permitted a child to testify

in a separate room by one-way video stream during the criminal trial of a woman charged

with sexually assaulting the child. Craig, 497 U.S. at 841, 110 S. Ct. at 3161. The

child-witness, prosecutor, and defense attorney all went into a separate room where the

examination took place, while the judge, jury, and defendant observed the video from the

courtroom. Craig, 497 U.S. at 841, 110 S. Ct. at 3161. Prior to the testimony, the

prosecution presented expert testimony opining that requiring the child to testify in front

of the accused would cause anxiety and agitation, and obstruct the child from properly

communicating. Craig, 497 U.S. at 842, 110 S. Ct. at 3161-62. In affirming, the Supreme

Court explained “that the face-to-face confrontation requirement is not absolute does not,

of course, mean that it may be easily dispensed with[,]” and that a defendant’s right to

confront accusatory witnesses may be satisfied absent a physical, face-to-face

confrontation at trial “only where denial of such confrontation is necessary to further an

important public policy and only where the reliability of the testimony is otherwise

assured.” Craig, 497 U.S. at 850, 110 S. Ct. at 3166.

9
¶18 Craig has subsequently been characterized as adopting a two-prong analysis. See,

e.g., United States v. Carter, 907 F.3d 1199, 1207 (9th Cir. 2018); United States v. Yates,

438 F.3d 1307, 1313 (11th Cir. 2006) (“[T]he Supreme Court crafted its two-part standard

to constrain the use of one-way closed-circuit television[.]” (internal quotation and citation

omitted)); State v. Rogerson, 855 N.W.2d 495, 502-503 (Iowa 2014) (noting it was joining

large majority of jurisdictions surveyed in requiring the “Craig standard” of necessity and

reliability). Thus, it must first be shown that denial of physical face-to-face confrontation

is necessary to further an important public policy. Carter, 907 F.3d at 1205-1206;

Rogerson, 855 N.W.2d at 499. The second prong of the Craig analysis requires the trial

court to determine that reliability of the testimony is otherwise assured. Carter, 907 F.3d

at 1206; Rogerson, 855 N.W.2d at 499.

¶19 Courts are essentially uniform in requiring, under the first prong, “something more

than [] generalized findings” of policy concerns. Coy, 487 U.S. at 1021, 108 S. Ct. at 2803.

“[A] defendant’s right to ‘physical, face-to-face confrontation at trial’ may be

compromised by the use of a remote video procedure only upon a ‘case-specific finding’

that [] the denial of physical confrontation ‘is necessary to further an important public

policy[.]’” Carter, 907 F.3d at 1208 (quoting Craig, 497 U.S. at 858, 110 S. Ct. 3170);

see also Green, 399 U.S. at 189 n.22, 90 S. Ct. at 1951 (Harlan, J., concurring) (noting a

criminal defendant’s constitutional rights cannot be neglected merely to avoid “added

expense or inconvenience”); Carter, 907 F.3d at 1208 (holding judicial economy and

“added expense or inconvenience” is insufficient to extend Craig); People v. Jemison,

10
505 Mich. 352, 364 (2020) (holding that saving costs is insufficient justification to extend

Craig).

¶20 The parties and the District Court appear to interpret Duane as lowering the required

showing under the first prong of the Craig analysis because of our statement that video

could be employed when physical presence of a witness was “impossible or impracticable,”

rather than “necessary.” Duane, ¶ 25.2 However, this comparison is a bit of mixing

analytical apples and oranges. Our conclusion paragraph in Duane simply stated it must

be shown “the personal presence of the witness is impossible or impracticable,” Duane,

¶ 25 (emphasis added), which left unaltered Craig’s second prong permitting denial of

physical confrontation when “necessary to further an important public policy.” Craig, 497

U.S. at 850, 110 S. Ct. at 3166 (emphasis added). The apparent alarm over our use of the

word “impracticable” is dispelled by consideration of the facts in Duane. There, three

co-defendants charged with animal cruelty elected to have separate trials. Duane, ¶ 5. The

veterinarian who had performed the autopsy on the deceased animal had moved to

California between the time of her examination and the trial dates. Duane, ¶ 6. Bringing

the veterinarian to Montana for three separate trials, which was described as “an

extraordinary expense on the City and a significant burden on [the veterinarian],” Duane,

¶ 6, rendered it a substantial financial and logistical impracticality, if not a literal

impossibility, for the City of Missoula to proceed with the misdemeanor charges unless the

2
Indeed, Mercier asks that we overrule Duane.

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veterinarian appeared by two-way videoconferencing technology. Duane, ¶ 21. The

substantial impracticality of the out-of-state witness’s physical appearance in three

misdemeanor trials satisfied the requirement of Craig that use of video was necessary to

further an important public policy. Duane, ¶ 21.

¶21 To satisfy Craig’s second prong, reliability, the hallmarks of confrontation must be

present—the non-physically present witness must be under oath and understand the

seriousness of his or her testimony, be subject to cross-examination, and permit assessment

of the witness’s veracity by the factfinder. Duane, ¶ 15 (citing Stock, ¶ 23); Craig, 497

U.S. at 857, 110 S. Ct. at 3170; Carter, 907 F.3d at 1206 (noting that the elements of

confrontation—oath and competency, cross-examination, and viewable by judge and

jury—were present in satisfaction of the second prong). Craig’s second prong is not the

primary focus of this appeal.3

¶22 We pause to note that Craig’s continuing utility has been questioned in two major

respects; first, whether its analysis extends to two-way video procedures has led to a circuit

split in the federal courts. Compare United States v. Gigante, 166 F.3d 75, 81 (2d Cir.

1999) (holding Craig did not apply to two-way video systems and instead applying a

standard from Federal Rules of Criminal Procedure Rule 15), with Carter, 907 F.3d at 1208

n.4 (“We agree with the Eighth and Eleventh Circuits that [the Second Circuit] is an outlier

and that the proper test is Craig” for determining if two-way video procedures satisfy the

3
Mercier states he “does not concede” the reliability prong but did not provide an argument on
that question.

12
right to face-to-face confrontation); see also Yates, 438 F.3d at 1313-15 (en banc)

(extending Craig’s analysis to two-way video), and United States v. Bordeaux, 400 F.3d

548, 554-55 (8th Cir. 2005) (same); cf. United States v. Weekley, 130 F.3d 747, 753

(6th Cir. 1997) (applying Craig’s standard without analyzing one-way versus two-way);

United States v. Farley, 992 F.2d 1122, 1124-25 (10th Cir. 1993) (same). Similarly, state

courts have struggled in determining whether Craig extends to two-way video procedures.

Compare Rogerson, 855 N.W.2d at 502-503 (applying Craig to two-way video systems

while noting that state courts in Florida, Texas, Wyoming, North Carolina, Virginia, New

York, Montana, and Pennsylvania had done the same); and State v. Thomas, 376 P.3d 184,

193-94 (N.M. 2016) (applying Craig’s two-prong test without analysis of one-way versus

two-way video procedures), with Jemison, 505 Mich. at 365 (confining the Craig test to its

specific facts—one-way video with a child sexual abuse victim). Despite the disagreement

among courts, our research leads to the conclusion that the overwhelming majority of

jurisdictions have applied Craig to two-way video procedures, a position that we continue

to adhere to. See e.g., Duane, ¶ 21 (applying Craig to two-way video testimony without

analysis of one-way versus two-way video); Stock, ¶ 30 (same).

¶23 The second challenge to Craig’s utility is whether it has been abrogated by the

Supreme Court’s landmark Confrontation Clause decision in Crawford. Crawford v.

Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). There, Crawford was put on trial for the

stabbing death of a man who had allegedly attempted to rape Crawford’s wife. Crawford,

541 U.S. at 38, 124 S. Ct. at 1357. Crawford’s wife gave a tape-recorded description of

13
the stabbing, but did not testify at trial pursuant to Washington’s marital privilege rule.

Crawford, 541 U.S. at 39-40, 124 S. Ct. at 1357. Crawford objected to the admission of

the recording, but it was admitted under a hearsay exception. Crawford, 541 U.S. at 40,

124 S. Ct. at 1358. Following a comprehensive review of the historical right to

confrontation, the Supreme Court determined the wife’s statement during interrogation was

testimonial in nature, rather than non-testimonial, and, therefore, the husband’s right to

confrontation required the right to cross-examine his wife about the recording. Crawford,

541 U.S. at 68, 124 S. Ct. at 1374. The Court explained that the Confrontation Clause was

a “procedural [right to test the reliability of the testimonial statement with

cross-examination] rather than a substantive guarantee” of reliability, and therefore

out-of-court testimonial statements were inadmissible regardless of indicia of reliability.

Crawford, 541 U.S. at 61, 124 S. Ct. at 1370.

¶24 In a recent decision, the Michigan Supreme Court confined Craig to its specific

facts—one-way video, child victim. Jemison, 505 Mich. at 365. That court faced an issue

factually similar to the one here: over defense objection, an out-of-state expert was

permitted to testify via live two-way video as a cost-saving measure. Jemison, 505 Mich.

at 357-58. The court did not analyze the necessity prong in depth, noting only that “expense

is not a justification for a constitutional shortcut.” Jemison, 505 Mich. at 364. Rather, the

opinion focused on the reliability of testimony adverse to the defense procured by two-way

video. The Michigan Supreme Court reasoned that, since Crawford had overruled

Roberts—the case that established the “reliability framework” that was the cornerstone of

14
Craig’s second prong—and Craig had been decided under the “reliability framework” of

Roberts, Craig was implicitly superseded by Crawford on all confrontation issues not

factually identical to Craig. Jemison, 505 Mich. at 355-56; see also Ohio v. Roberts, 448

U.S. 56, 100 S. Ct. 2531 (1980).

¶25 While “Crawford may call into question the prior holding in Craig to the extent that

Craig relied on the reliability of the video testimony[,]” reliability of the two-way video is

not independently challenged here, and the only Craig issue to be resolved is whether the

necessity prong has been satisfied. Thomas, 376 P.3d at 193.4 However, assuming

arguendo that reliability was at issue, we are not prepared to declare the proverbial death

knell to Craig just yet, and prefer to await further direction from the Supreme Court. As

one commentator has noted, it may be that the two cases may coexist, with Crawford

setting the standard for the type of out-of-court statements that are subject to the

confrontation right and Craig governing the manner in which in-court testimony may be

presented. M.C. McAllister, The Disguised Witness and Crawford’s Uneasy Tension with

Craig: Bringing Uniformity to the Supreme Court’s Confrontation Jurisprudence,

58 Drake L. Rev. 481, 512-13 (2010). Indeed, Crawford did not even address Craig, let

alone overrule it, nor was the face-to-face aspect of confrontation specifically at issue in

Crawford. Stock, ¶ 25; Thomas, 376 P.3d at 193 (providing survey of other jurisdictions

maintaining applicability of Craig as good law).

4
Mercier does not argue that Craig should not be applied.

15
¶26 Turning back to the case at bar, we consider whether use of two-way video for

Special Agent Johnsrud’s testimony was “necessary to further an important public policy”

under Craig’s first prong. The State emphasizes that, as articulated by the Supreme Court

in Craig, “the Confrontation Clause reflects a preference for face-to-face confrontation at

trial, a preference that must occasionally give way to considerations of public policy and

the necessities of the case.” Craig, 497 U.S. at 849 (citation and quotations omitted)

(emphasis added). The State thus argues the use of the two-way video was permissible

because, pursuant to the public policy of judicial economy, it was unreasonable to incur

significant travel expenses and inconveniences for testimony deemed to be purely

foundational. The District Court agreed, ruling under Duane that the “significant time and

expense” required for Johnsrud to testify in-person outweighed any perceived diminution

of Mercier’s confrontation right and the cross-examination’s efficacy. However, as noted

by the Ninth Circuit Court of Appeals, quoting Justice Harlan, merely “avoiding added

expense or inconvenience” is not sufficient, without more, to dispense with the preference

for face-to-face testimony. Green, 399 U.S. at 189 n.22, 90 S. Ct. at 1951 (Harlan, J.,

concurring); Carter, 907 F.3d at 1208. Even if it were, “case-specific” findings

demonstrating the necessity of video testimony were not entered here. We can draw only

the conclusion from the record that video testimony was permitted for the stake of

generalized judicial economy, with the District Court noting “it is commonplace in this

court for expert witnesses[,] such as medical experts and crime and technicians, to testify

in criminal cases” by two-way videoconferencing technology, and the State adding that

16
“many Montana attorneys would have readily” stipulated to the foundation or permitted

the video testimony. These statements may be correct, but one defendant’s waiver of

constitutional right does not establish a precedent for waiver of the right by subsequent

defendants, and neither does the practice of other attorneys. Although judicial economy

may be an important public policy in other contexts, standing alone, it must yield to the

constitutional rights of the accused.

¶27 The State urges that the nature of the testimony—foundational with no substantive

force—weighs in favor of approving the video testimony. However, nowhere in the text

of the Confrontation Clause is there language limiting the type of testimonial evidence to

which the right to physical confrontation applies. See U.S. Const. amend. VI; Mont. Const.

art. II, § 24; State v. Clark, 1998 MT 221, ¶ 22, 290 Mont. 479, 964 P.2d 766 (reversible

error to allow a forensic report to be admitted by the written deposition of a technician

absent the physical presence of the technician because neither the nature of the witness nor

the evidence which may be entered based upon the witness’s testimony impacts the right

to confront the witness).

¶28 We conclude that furtherance of an important public policy to allow Special Agent

Johnsrud to testify via two-way videoconferencing was not here demonstrated, and the first

prong of the Craig analysis was not satisfied, in error. Johnsrud’s video testimony was

improperly admitted. Its necessary exclusion means there was no foundation for admission

of the two midnight photographs extracted from Sheena’s cell phone, which must be

excluded as well.

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¶29 2. Did the State meet its burden to demonstrate the error was harmless as to the
Deliberate Homicide conviction and the Tampering with Physical Evidence
conviction?

¶30 When reviewing errors, we first determine if the error was a “structural” or “trial”

error. State v. Van Kirk, 2001 MT 184, ¶ 41, 306 Mont. 215, 32 P.3d 735. “Structural”

errors are those that “‘affect[] the framework within which the trial proceeds, rather than

simply an error in the trial process itself.’” Van Kirk, ¶ 38 (quoting Arizona v. Fulminante

(1991), 499 U.S. 279, 310, 111 S. Ct. 1246, 1265). Structural errors are reversible and

require no additional analysis for prejudice. Van Kirk, ¶ 39. Conversely, trial errors, which

typically occur during the presentation of the case to the jury, are “amenable to qualitative

assessment by a reviewing court for prejudicial impact relative to the other evidence

introduced at trial” and are subject to harmless error review. Van Kirk, ¶ 40 (citing

Montana’s harmless error statute, § 46-20-701(1), MCA).

¶31 A constitutional deprivation of the defendant’s confrontation right is a trial error and

is subject to harmless error review. Carter, 907 F.3d at 1210. Pursuant thereto, the State,

as the “beneficiary of a constitutional error[,]” bears the burden of proving that the error

was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87

S. Ct. 824, 828 (1967). The “assessment of harmlessness cannot include consideration of

whether the witness’ testimony would have been unchanged, or the jury’s assessment

unaltered, had there been confrontation[,]” and instead harmlessness must “be determined

on the basis of the remaining evidence.” Coy, 487 U.S. at 1021-22, 108 S. Ct. at 2803. We

consider “the importance of the witness’ testimony in the prosecution’s case, whether the

18
testimony was cumulative, [and] the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points[.]” Delaware v. Van Arsdall,

475 U.S. 673, 684, 106 S. Ct. 1431, 1438 (1986). However, “overwhelming evidence”

absent the tainted evidence in favor of guilt will not alone suffice to uphold a conviction.

Van Kirk, ¶ 43 (overruling prior decisions that analyzed whether there was “overwhelming

evidence” to support the conviction because such a test is a subjective inquiry that weighs

the relative volume of the evidence presented). Rather, we employ the more restrictive

“cumulative evidence” test, which “looks not to the quantitative effect of other admissible

evidence, but rather to whether the fact-finder was presented with admissible evidence that

proved the same facts as the tainted evidence proved.” Van Kirk, ¶ 43 (original emphasis).

¶32 Here, the evidence to be analyzed is the two photographs extracted from Sheena’s

cell phone, one of the kitchen area of Sheena’s home and both time-stamped around

midnight on the night of the incident. Despite exclusion of the photographs, which gave

rise to an inference that Mercier was in Sheena’s home at midnight, the State’s presented

case remained viable on the basis of other admitted evidence sufficient to prove the same

point, and which supported a finding of guilt. Indeed, this evidence was potentially even

stronger than the excluded photographs. The State presented an eyewitness who testified

to observing Mercier inside Sheena’s residence around midnight—the same time the

photographs were taken in the house and time-stamped—closing the shades of Sheena’s

kitchen window. Thus, the photographs were cumulative on the timing point with the

testimonial evidence provided by the eyewitness. Mercier contends the eyewitness’

19
account was impeached and therefore did not constitute cumulative evidence on the point.

However, Mercier’s argument is an interpretational second-guessing of the evidence. It is

not his role or ours when assessing harmless error to make credibility judgments about the

overlapping evidence, but rather to assess whether sufficient cumulative evidence was

presented to prove the same point, and here there was. An attempt to determine how jury

perception or the eyewitness testimony would have been altered absent the confrontation

issue would “involve pure speculation[.]” Coy, 487 U.S. at 1022, 108 S. Ct. at 2803.

Moreover, the excluded photographs themselves did not identify Mercier as taking the

photographs; conversely, and more compellingly, the witness’ testimony affirmatively

placed Mercier inside the home around midnight. Consequently, because evidence other

than the tainted photographs was presented demonstrating Mercier’s presence in the home

at midnight, in contradiction to his version of the incident, the State has carried its burden

of showing that the Confrontation Clause violation was harmless beyond a reasonable

doubt as to the Deliberate Homicide conviction. That conviction is affirmed.

¶33 However, we reach the opposite conclusion regarding the Tampering conviction.

The State offered no other physical or testimonial evidence tending to prove that Mercier

handled Sheena’s phone or otherwise tampered with it during the time in question. The

only evidence connecting Mercier to use of the phone was the two photographs

time-stamped at midnight, combined with the angle of the photograph taken of the kitchen,

which gave rise to an inference that Mercier, and not a child, had taken the photograph.

Because the only evidence offered by the State supporting Mercier’s handling of the phone

20
is tainted by the Confrontation Clause violation, the State has not carried its burden to prove

the error was harmless beyond a reasonable doubt, and his conviction for Tampering with

Physical Evidence must be set aside.

¶34 3. Did the prosecutor commit plain error during the closing argument?

¶35 The purpose of plain error review is to correct an otherwise objectionable error not

objected to at trial that impacts the “fairness, integrity, and public reputation of judicial

proceedings.” State v. Lawrence, 2016 MT 346, ¶ 9, 386 Mont. 86, 385 P.3d 968 (internal

citation and quotation omitted). We invoke plain error review sparingly, on a case-by-case

basis, and only “in 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.” Aker, ¶ 21 (citing State v. McDonald, 2013 MT 97,

¶ 8, 369 Mont. 483, 299 P.3d 799).

¶36 Mercier contends the State’s comments on defense counsel’s asserted undervaluing

of Sheena’s life was a “wholly improper ad hominem attack on defense counsel” and

“create[d] a prejudicial link between defense counsel’s alleged immorality and [Mercier’s]

guilt.” Mercier argues the comments are an appropriate basis for a new trial. The State

responds that, despite Mercier’s current characterization of the statement, a review of the

entirety of defense counsel’s summation indicates the prosecution could have reasonably

understood defense counsel “to be analogizing Mercier’s ‘mistake’ in killing Sheena to the

mistake of leaving eggs off a shopping list[,]” especially in light of Mercier’s request to be

21
convicted of Negligent Homicide. The State argues that, in any event, the prosecutor’s

response was “unmistakably a comment ‘on the gravity of the crime charged[.]’”

¶37 We consider claimed improper statements by the State during closing arguments “in

the context of the entire argument.” State v. Makarchuk, 2009 MT 82, ¶ 24, 349 Mont.

507, 204 P.3d 1213 (citing State v. Roubideaux, 2005 MT 324, ¶ 15, 329 Mont. 521,

125 P.3d 1114). Prosecutorial misconduct calls for reversible error if it prejudices a

defendant’s substantial rights. Lehrkamp, ¶ 15 (citation omitted). Such prejudice is not

inferred and the “‘defendant must demonstrate, from the record, that the prosecutor’s

misstatements prejudiced him.’” Lehrkamp, ¶ 15 (quoting State v. Dobrowski, 2016 MT

261, ¶ 28, 385 Mont. 179, 382 P.3d 490). Prosecutors must refrain from offering personal

opinions, but may appropriately comment on “‘the gravity of the crime charged, the

volume of evidence, credibility of witnesses, inferences to be drawn from various phases

of evidence, and legal principles involved[.]’” McDonald, ¶ 14 (quoting State v. Green,

2009 MT 114, ¶ 33, 350 Mont. 141, 205 P.3d 798).

¶38 A prosecutor who comments on defense counsel’s disregard for the value of human

life—as opposed to a defendant’s potential disregard for life as evidenced by his actions—

is certainly on thin ice. However, at a minimum, defense counsel’s grocery analogies,

especially in view of Mercier’s trial position that he was guilty of negligently killing

Sheena, were awkwardly framed, conveying an intent that was not entirely clear. Whether

or not they were correctly understood by the prosecutor, we conclude on the basis of the

record as a whole that review of this potential error is not necessary to prevent a “manifest

22
miscarriage of justice, leave unsettled the question of the fundamental fairness of the

proceedings, or compromise the integrity of the judicial process.” Aker, ¶ 21. We conclude

that Mercier’s right to a fair trial was not undermined by the prosecutor’s closing argument,

and we affirm the Deliberate Homicide conviction.

CONCLUSION

¶39 For the reasons discussed herein, we conclude the District Court erred by allowing

Special Agent Johnsrud to testify, over Mercier’s objection, via two-way video. We affirm

Mercier’s conviction for Deliberate Homicide because the error was harmless, and the

prosecution’s closing statements did not warrant plain error review. We reverse Mercier’s

conviction for Tampering with Physical Evidence because the State did not demonstrate

the Confrontation Clause error was harmless.

¶40 Affirmed in part, reversed in part, and remanded for entry of an amended judgment.

/S/ JIM RICE

We concur:

/S/ BETH BAKER

Justice Ingrid Gustafson, specially concurring and dissenting.

¶41 I concur with the plurality Opinion (Opinion) that application of the analysis in

Craig is appropriate to determine whether the District Court properly abrogated Mercier’s

right to face-to-face confrontation of the witness. I also agree the two-way video

23
conferencing in this case was not demonstrated to further an important public policy such

that denial of in-person, face-to-face confrontation was not “necessary” under the first

prong of Craig. I agree with the Opinion that this error was harmless as to Mercier’s

Deliberate Homicide conviction and concur in affirming that conviction, but such error was

not harmless in regard to his conviction for Tampering with Physical Evidence such that I

concur in reversing his conviction on that charge. I further concur with the Opinion as to

issue 3. I write as I believe the Opinion leaves confusion as to how Duane should be

interpreted. In discussing Duane, the Opinion suggests that “an extraordinary expense”

rather than a usual or ordinary expense would meet the necessity standard under the first

prong of Craig. Opinion, ¶ 20. As the Opinion notes, the parties and the District Court

appear to interpret Duane as lowering the required showing under the first prong of Craig,

but then asserts such is not the case as our conclusion in Duane “simply stated it must be

shown ‘the personal presence of the witness is impossible or impracticable[.]’” Opinion,

¶ 20 (emphasis in original). My interpretation of Duane is similar to that of the parties and

the District Court in that “impossibility” or “impracticality” is not the same as “necessary

to further an important public policy” and thus, appears to lower the required showing of

necessity under the first prong of Craig. As noted in the Opinion in its discussion of

Jemison—with which I agree—expense is not a justification for a constitutional shortcut.

Opinion, ¶ 24. In Duane, there may have been considerations other than “extraordinary

expense” necessitating denial of in-person, face-to-face confrontation in furtherance of an

24
important public policy, but such were not articulated and analyzed.1 The holding in Duane

appears to conclude or suggest that prohibitive expense forms the basis of necessity and

that Craig’s necessity requirement is replaced with or includes an impracticality standard.

I agree with the Special Concurrence that the Opinion’s efforts to not overrule Duane on

the basis of the meager distinctions it makes are unconvincing. To avoid further confusion

over the interpretation of Duane, I would clarify or overrule Duane to eliminate its

conclusion or suggestion that prohibitive expense forms the basis of necessity and to

eliminate its conclusion or suggestion that Craig’s necessity requirement is replaced with

or includes an impracticality standard.

/S/ INGRID GUSTAFSON

Justices Laurie McKinnon and James Jeremiah Shea join in the Special Concurrence and
Dissent of Justice Gustafson.

/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA

1
A myriad of circumstances may present such as personal circumstances of witnesses, community
safety, protection of constitutional rights like that to speedy trial, or a public health crisis which
could ultimately justify abrogation of in-person, face-to-face confrontation as necessary to further
an important public policy. But, expense of prosecution, while no doubt a consideration in
determining if pursual of a criminal cause warrants it, cannot be a justification for a constitutional
shortcut.

25
Chief Justice Mike McGrath, specially concurring.

¶42 While I agree with the result reached by the majority under the harmless error

standard, I write separately to express my continued belief that modern two-way

videoconferencing technology is a constitutionally-acceptable alternative to physical,

in-person courtroom testimony, so long as the relevant indicia of reliability at the heart of

the confrontation clause are present. See Duane, ¶¶ 29-30 (McGrath, C.J., concurring).

The task of interpreting constitutional rights in light of modern technological developments

remains centered on purpose and effect, as exemplified by the Fourth Amendment’s

continuing vitality with the advent of new surveillance technology and the First

Amendment’s ongoing role in protecting the free interchange of ideas transmitted through

an ever-changing array of modern communication methods. Likewise, interpretation of

the Sixth Amendment’s right of confrontation must examine the practical effect of new

technology on the interests protected by the Confrontation Clause. I believe that the

majority Opinion disregards our precedent and needlessly tethers technological

advancements—regardless of the constitutionally-significant distinctions among them—to

a decades-old standard fashioned for the limited purpose of addressing one particular

technology not at issue here.

¶43 “The central concern of the Confrontation Clause is to ensure the reliability of the

evidence against a criminal defendant by subjecting it to rigorous testing in the context of

an adversary proceeding before the trier of fact.” Craig, 497 U.S. at 845, 110 S. Ct. at

3163. To achieve this degree of reliability, the Confrontation Clause:

26
 (1) insures that the witness will give his statements under oath—thus
impressing him with the seriousness of the matter and guarding against the
lie by the possibility of a penalty for perjury; (2) forces the witness to submit
to cross-examination, the greatest legal engine ever invented for the
discovery of truth; and (3) permits the jury that is to decide the defendant’s
fate to observe the demeanor of the witness in making his statement, thus
aiding the jury in assessing his credibility.

Craig, 497 U.S. at 845-46, 110 S. Ct. at 3163 (quotations and alterations omitted). These

factors—formality, cross-examination, and jury observation of witness demeanor—should

guide our interpretation of the Confrontation Clause through a changing technological

landscape.

¶44 Though it offered a rule for a very specific situation—testimony by a child victim

via one-way video—Craig did not claim that this rule was the final word on any and all

forms of technologically-mediated testimony. Rather, Craig emphasized the

purpose-driven nature of Confrontation Clause interpretation, noting that it:

reflects a preference for face-to-face confrontation at trial, a preference that
must occasionally give way to considerations of public policy and the
necessities of the case. We have attempted to harmonize the goal of the
Clause—placing limits on the kind of evidence that may be received against
a defendant—with a societal interest in accurate factfinding, which may
require consideration of out-of-court statements. We have accordingly
interpreted the Confrontation Clause in a manner sensitive to its purposes
and sensitive to the necessities of trial and the adversary process.

Craig, 497 U.S. at 849, 110 S. Ct. at 3165 (citations and quotations omitted, emphasis in

original). An interpretation sensitive to the purposes of the Confrontation Clause demands

a more nuanced approach than that of simply repurposing the rule Craig fashioned for one

particular technology—one-way video—to all conceivable forms of communication.

There is certainly nothing inherently troubling in technologically-aided communication, as
27
evidenced by the continued uncontroversial use of eyeglasses and hearing aids to facilitate

communication between individuals in a courtroom.

¶45 In fact, a fair reading of Duane—what I view as the controlling case on testimony

via modern two-way video technology—demonstrates that this Court has already joined

with those that have found Craig’s rule for one-way video testimony inapplicable

elsewhere. See United States v. Gigante, 166 F.3d 75, 81 (2d Cir. 1999); People v. Jemison,

No. 157812, 2020 Mich. LEXIS 1076, at *14 (June 22, 2020). Contrary to the majority’s

reasoning, Duane did not cite to or purport to apply the Craig standard—necessity to

further an important public policy in addition to adequate assurances of reliability—when

addressing the issue of witness testimony via Skype. Compare Duane, ¶ 15 with Craig,

497 U.S. at 850, 110 S. Ct. at 3166. The Duane Court cited Craig merely for the

uncontroversial proposition that the Confrontation Clause serves to “‘ensure the reliability

of the evidence against a criminal defendant by subjecting it to rigorous testing in the

context of an adversary proceeding’” but does not guarantee criminal defendants “‘the

absolute right to a face-to-face meeting with witnesses against them at trial.’” Duane, ¶ 15

(quoting Craig, 497 U.S. at 844-45, 110 S. Ct. at 3163) (emphasis in original).

¶46 The closest the Duane Court arrived to applying Craig’s necessity requirement was

when it noted that requiring a witness to travel from California “would impose a prohibitive

expense on the City and a significant burden” on the witness. Duane, ¶ 21. The majority

here attempts to repurpose Duane as an application of the Craig test by turning “prohibitive

expense” into a form of “necess[ity],” as required by Craig. However, expense and

28
inconvenience are not sufficiently “important” government interests to satisfy the Craig

analysis. United States v. Carter, 907 F.3d 1199, 1208 (9th Cir. 2018) (citing California

v. Green, 399 U.S. 149, 189, 90 S. Ct. 1930, 1951 n.22 (1970) (Harlan, J., concurring)).

The majority Opinion seemingly attempts to find an exception, unsupported by caselaw,

for expenses great enough to be deemed substantially impractical or prohibitive. This rule

will require trial courts to take on the role of auditor, conducting in-depth financial analysis

of a government budget and making a ruling on its fiscal status.

¶47 Neither do Duane’s facts support the majority’s conclusion that Duane represents a

Craig analysis and is distinguishable from the present case on the basis of heightened

expense. The majority points to the fact that the three defendants initially charged in the

Duane proceeding had elected to have separate trials, potentially tripling the travel costs of

bringing the witness from California for the prosecution of each defendant. However, even

assuming such tripling could conclusively establish the existence of a “prohibitive”

expense, it was not material to the Duane holding, as the Duane Court explicitly noted that

“[t]his appeal pertains only to Duane,” not the independent proceedings against the other

two defendants. Duane, ¶ 5. These efforts to neither follow nor overrule Duane on the

basis of such meager distinctions are unconvincing.

¶48 I believe that the proper reading of Duane is one in which this Court properly

declined to extend the test articulated in Craig for one-way video to modern two-way

videoconferencing technology. The one-way technology addressed in Craig possesses

fewer indicia of reliability than the two-way, real time communication addressed here.

29
Duane properly centered its analysis on the foundational principle of reliability while

replacing Craig’s “necess[ity]” requirement with an “impracticab[ility]” standard more

suited to the improved technology. See Duane, ¶ 25.

¶49 The distinction between “necess[ity]” in Craig and “impracticab[ility]” in Duane

reflects the fundamental difference between the technologies described. The one-way

video technology used in Craig was explicitly intended to eliminate the defendant’s

presence in order to protect psychologically-fragile child victims from the trauma of

viewing their alleged abuser while giving testimony. See Craig, 497 U.S. at 857, 110 S. Ct.

at 3170. As a result, the Craig Court was compelled to fashion a necessity requirement.

In contrast, here, as in Duane, the modern two-way video in real time provides all of the

benefits of a physical face-to-face communication, as was contemplated by the “face to

face” provision of Article II, Section 24, of the Montana Constitution.

¶50 Rather than purposefully obscuring a fundamental aspect of live testimony, the

modern two-way telecommunications technology at issue here is intended to transmit

substantially the same information as that shared by individuals physically present in the

same room. As the COVID-19 pandemic has forced many of us to discover, such

technology can now readily host a wide range of important interactions, including court

proceedings such as the oral argument in this appeal. As technology continues to advance,

it will be unsurprising if such tools eventually come to provide a virtual “face-to-face”

sensory experience equally as rich as one premised on physical proximity. Mechanical

application of the Craig standard is unhelpful in this dynamic technological context.

30
¶51 The Duane standard allows a court to effectively vindicate constitutional rights

without falling into technological obsolescence. I would fully adopt Duane’s rationale for

the use of Skype two-way real-time technology to the facts of this case. The majority’s

holding imposes an irrational requirement for the use of this technology—especially for a

foundational issue—that is unnecessary and not required by Craig.

/S/ MIKE McGRATH

Justice Dirk Sandefur joins the Special Concurrence of Chief Justice Mike McGrath.

/S/ DIRK M. SANDEFUR

31