No. 8 6 - 2 1
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN THE MATTER OF
J.W.K., a Youth under the
age of Eighteen Years.
APPEAL FR.OM: District Court of the Seventeenth Judicial District,
In and for the County of Valley,
The Honorable Leonard Langen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David L. Irving, Glasgow, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
George Schunk, Asst. Atty. General, Helena
David Nielsen, County Attorney, Glasgow, Montana
Submitted on Briefs: May 30, 1 9 8 6
Decided: August 19, 1986
Filed: AUG 19 1986
a% Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
The Valley County District Court found J.W.K., a minor,
guilty of sexual assault, and ordered him committed to the
Pine Hills School for Boys. He appeals the conviction.
We affirm.
Appellant raises three issues on appeal:
1. Did the District Court err in admitting the opinion
testimony of a psychologist as to the truthfulness and
reliability of children's testimony?
2. Did the District Court err in denying appellant's
motion to suppress his admission?
3. Is there substantial credible evidence in the record
to support the findings of the District Court?
At the time of the incident in question, appellant was
thirteen years old. He did occasional babysitting work for
several families in the Glasgow area. In December of 1984,
he babysat M.B., J.B., and D.B. M.B. and J.B. were five and
six years old.
In the spring of 1985, J.B. and M.B. exhibited
precocious sexual knowledge at their day care center. This
information was brought to the attention of Beverly Miller, a
social worker. In April, Ms. Miller interviewed J.B. and
M.B. separately, and through the use of anatomically correct
dolls learned that the children had been sexually abused.
Ms. Miller reported her observations to the county attorney.
On April 24, 1985, an investigator with the county
attorney's office interviewed J.B. and M.B. Based upon that
interview, the investigator questioned appellant. Appellant
denied the allegations of sexual abuse.
Ms. Miller then spoke to appellant and told him she knew
of the incident. He then attempted to described the
incident. She stopped him and suggested he talk further with
the officer investigating the case.
On May 9, 1985, the investigator conducted a second
interview with appellant. Before the interview, appellant
and his mother executed a written acknowledgement and waiver
of rights. Appellant's mother was present during the first
part of the interview, but later left the room at her son's
request. The interview was taped. A twelve page transcript
of the interview was prepared and the tapes were erased.
During this interview, appellant admitted he had sexually
assaulted J.B.
On May 23, 1985, appellant was charged with theft,
criminal mischief, and sexual assault. A pretrial agreement
was executed whereby appellant admitted the theft and
criminal mischief charges and was sent to the Pine Hills
School for a forty-five day evaluation. Dr. George Hossack
conducted a psychological evaluation of appellant at the
school.
An adjudicatory and dispositional hearing was held
October 1, 1985. J.B. and M.B. testified against appellant.
Dr. Hossack testified that appellant admitted the alleged
crime to him and he recommended further treatment at Pine
Hills. He also testified that five and six year old children
are unable to sustain a lie about sexual abuse.
The District Court found that appellant did commit the
crime of sexual assault and adjudged the appellant to be a
delinquent youth. He was ordered committed to Pine Hills.
Appellant's first issue is whether the District Court
erred in admitting the opinion testimony of Dr. Hossack as to
the truthfulness and reliability of children's testimony.
Appellant makes three arguments. First, appellant argues
that the testimony was beyond the scope of cross-examination
as provided in Rule 611, M.R.Evid. We disagree.
Rule 611, M.R.Evid. states:
(b) Scope of cross-examination.
(1) Cross-examination should be limited to the
subject matter of the direct examination and
matters affecting the credibility of the witnesses.
The court may, in the exercise of discretion,
permit inquiry into additional matters as if on
direct examination.
As this rule indicates, the scoge of cross-examination is
within the discretion of the trial court and this Court will
not disturb the District Court's ruling absent a clear abuse
of discretion. State v. Hart (Mont. 1981), 625 P.2d 21, 38
St.Rep. 133. Dr. Hossack's testimony aided the trier of fact
and the District Court did not abuse its discretion in
allowing it.
Appellant next argues that Dr. Hossack was not qualified
or submitted to the court as an expert and the court did not
accept or rule on his qualifications.
Rule 702, M.R.Evid. states:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact in
issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education may testify thereto in the form of an
opinion or otherwise.
The determination that a witness is an expert is within
the discretion of the trial court and will not be disturbed
on appeal without a showing of abuse of that discretion.
State v. Berg (Mont. 1985), 697 P.2d 1365, 42 St.Rep. 518.
Here we find no abuse of discretion. Dr. Hossack testified
he was a licensed psychologist employed at Pine Hills for
three years. He had done hundreds of psychological
evaluations. Fifteen to twenty a year are related to sexual
abuse cases. He further testified that he was a consultant
for two public school systems and worked for two
pediatricians doing psychological evaluations for fifteen
years. The District Court did not abuse its discretion by
allowing Dr. Hossack to testify concerning the reliability of
children's testimony.
Although the District Court did not formally acknowledge
the doctor as an expert, we hold that the District Court made
the determination that the witness was qualified when it
overruled the appellant's objection and permitted him to
testify. Berg, 697 P.2d at 1367. Further, appellant's
objections as to Dr. Hosasack's qualifications go to the
weight rather than the admissibility of the testimony. -
Id.
Appellant finally argues that Dr. Hossack's testimony
was not responsive. We do not agree. Since appellant denied
the charge of sexual assault, the victim's credibility was an
issue. Therefore, it wa.s proper for the District Court to
allow Dr. Hossack to testify as to the reliability of
children's testimony. An expert may not testify concerning
the credibility and reliability of a particular witness.
State v. Brodniak (Mont. 1986), 718 P.2d 322, 43 St.Rep. 755.
However testimony concerning the reliability of a particular
class of witnesses, such as juvenile victims of sexual abuse,
is admissible. People v. Ashley (Colo. App. 1984), 687 P.2d
473; State v. Middleton (Or. 1983), 657 P.2d 1215.
Appellant's arguments on this issue are not persuasive.
Appellant's second issue is whether the District Court
erred in denying his motion to suppress his confession. At
trial, the State offered into evidence a transcript of
appellant's confession. Appellant objected, and the judge
allowed the transcript into evidence but reserved ruling on
its admissibility until hearing the testimony. The judge
later admitted the transcript over appellant's objection.
Appellant did not file his motion to suppress until the
first day of trial in violation of S 46-13-301(3), MCA.
However, the State failed to object to the timeliness of the
motion at trial and so has waived the objection pursuant to §
46-20-104 (2), MCA. Therefore, we will address appellant's
arguments.
Appellant argues that the confession was not voluntary
pursuant to 46-13-301 (1), MCA. The standard to be applied
in our review of this question is whether the District
Court's decision is supported by substantial credible
evidence. State v. Gould (Mont. 1985), 704 P.2d 20, 42
St.Rep. 946; State v. Grimestad (1979), 183 Mont. 29, 598
P.2d 198.
To determine whether an admission is voluntary, the
court must look at the totality of the circumstances. Those
circumstances include the background, experience, and conduct
of the accused.
Other appropriate considerations include the age,
education, and intelligence of the accused, and his
capacity to understand the warnings given him, the
nature of his Fifth Amendment rights, and the
consequences of waiving those rights.
State v. Blakney (1982), 197 Mont. 131, 138, 641 P.2d 1045,
Appellant argues that his confession was not voluntary
because he was 14 years old, had a borderline I.Q. , was
strongly dependent on his mother, and confessed only after
succumbing to the pressure and promises of the police. We
disagree.
Appellant and his mother signed an acknowledgment and
waiver of constitutional rights prior to the interview.
Appellant was given intelligence tests during his 45 day
evaluation at Pine Hills. He registered a full scale I.Q. of
86, verbal I.Q. of 102, and performance I.Q. of 72. We have
held a confession voluntary where the 20 year old defendant
had a full scale I.Q. of 91, verbal I.Q. of 99, and
performance I.Q. of 83. State v. Phelps (Mont. 1985), 696
Further, we held in Phelps that:
Mental illness or deficiency does not in itself
preclude admissibility of defendant's statements so
long as he was capable of understanding the meaning
and consequences of his statements. It is an
important factor to consider in examining the
totality of the circumstances, but it is not
conclusive. (Citations omitted.)
The length of the interrogation in this case, one half
hour, is far less than the one and one half hour
interrogation in Phelps. In addition, the confession was not
induced by any promises of treatment on the part of the
interrogating officer. The officer testified that he made no
promise of treatment to appellant, but merely said there was
help available for him.
Given the totality of the circumstances, we cannot agree
that the District Court's decision to admit appellant's
confession is not supported by substantial credible evidence.
Appellant's final issue is whether there is substantial
credible evidence to support the findings of the District
Court. When reviewing evidence on appeal, it will be viewed
in the light most favorable to the prevailing party and
district court. The credibility of the witnesses and the
weight given to their testimony is for the determination of
the district court in a nonjury trial. In re Jones (1978),
176 Mont. 412, 578 P.2d 1150.
Appellant argues there is not substantial credible
evidence to support the finding that he committed sexual
assault. Specifically, he argues that the testimony of the
five year old witness and six year old victim provides
insufficient corroboration of appellant's confession. Fe
l
disagree.
This Court has repeatedly upheld the use of juvenile
witnesses shown to be competent through their capacity of
expression and appreciation of the duty to tell the truth.
State v. Phelps (Mont. 1985), 696 P.2d 447, 42 St.Rep. 305;
State v. Rogers (Mont. 1984), 692 P.2d 2, 41 St.Rep. 2131;
State v. Campbell (1978), 176 Mont. 525, 579 P.2d 1231. In
this case the juvenile victim described the assault and
identified the appellant in the courtroom. The juvenile
witness corroborated the victim's testimony by testifying
that appellant and the victim were in the bathroom together,
and identified the appellant in the courtroom. Two doctors
testified that appellant exhibited characteristics typical of
adolescent sexual offenders. Finally, appellant admitted to
a doctor at Pine Hills and the interrogating officer that he
committed the assault.
There is substantial credible evidence in the record to
support the conclusion of the District Court that appellant
committed sexual assault.
The decision of the District Court is affirmed in all
respects.
W e Concur:
C h i e f Justice