NO. 90-132
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
MATTHEW AMES EDMUNDSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable Ted L. Mizner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
C. F. Mackay, Anaconda, Montana
For Respondent:
Marc Racicot, Attorney General, Jennifer Anders,
Assistant Attorney General, Helena, Montana ; Larry
N i s t l e r , County Attorney, Robert S. Anderson, Deputy, Polson,
Montana
Submitted: July 13, 1990
Y
Decided: October 23, 1990
Filed:
Y
Clerk
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
This appeal follows a hearing in the District Court of the
Twentieth Judicial District in and for the County of Lake revoking
defendant's conditional release from the Montana State Hospital.
We affirm.
The following issues are presented for review:
1. Whether the District Court erred when it allowed hearsay
evidence to be admitted under the regular conducted activities
exception.
2. Whether there was sufficient evidence before the court
upon which to base its order of revocation.
Defendant, Matthew Arnes Edmundson, was originally charged with
the crime of deliberate homicide in violation of 9 45-5-102(1) (a),
MCA (1983). On March 17, 1989, the defendant was found unfit to
stand trial and was civilly committed to the Montana State Hospital
at Warm Springs (Warm Springs). The trial was suspended until
defendant was fit to proceed. The District Court ultimately found
defendant not guilty of deliberate homicide by reason of mental
disease or defect. Subsequently, at a separate hearing on October
13, 1989, the court conditionally released defendant from Warm
Springs pursuant to 9 46-14-303, MCA. The court ordered that the
conditions of the release, among others, would be that he would
reside at the Harbinger House and participate in the Lamplighter
House day treatment program, both of Kalispell, for a five year
term; that he would abide by all house rules and refrain from any
inappropriate behavior to his peers.
On November 20, 1989, approximately one month after
defendant's admission to the home, Daniel George, Harbinger House
and Lamplighter director, informed the Lake County Attorney of
defendant's inappropriate behavior which violated the conditional
release. Later that same day, the State of Montana moved to revoke
defendant's conditional release based on these violations.
Following a revocation hearing, the District Court found that "the
conditions of defendant's release have not been fulfilled and that
the safety of the defendant and others in the community would be
threatened if his conditional release were continued." Accordingly
the District Court revoked defendant's conditional release and
recommitted him to Warm Springs. Defendant appeals this order.
The State's only witness at the revocation hearing was Daniel
George. Much of Mr. George's testimony was based on regularly
written reports of behavioral problems and counseling sessions kept
in the regular course of business of the Harbinger House and
prepared by a staff therapist. The court allowed this testimony
over hearsay objections of defense counsel. According to a
recorded entry of October 26, 1989, Mr. George testified that
defendant, upon admission, was fully advised of the house rules,
both orally and in writing. The house rule on curfew required that
residents be in the rooms by 10:OO p.m. with lights out by 11:OO
p.m. Defendant reportedly violated the curfew rule by getting up
in the middle of the night on several occasions, despite staff
warnings, to watch television with the sound off. Mr. George
testified that although defendant's behavior did not necessarily
6 ' C
disturb anyone, it was clinically significant in light of a history
of possible auditory hallucinations, or messages, he received from
television, as well as his violence surrounding the use of the
television.
Another condition of defendant's release required defendant
to "abstain from all acts of violence or inappropriate behavior
toward his peers in the said programs, the mental health staff in
the programs, or the community at large." At the revocation
hearing, Mr. George described defendant's inappropriate behavior
toward women in the group home. Mr. George testified that the
defendant had a habit of glaring at, or staring down women in an
intimidating manner. At one point a staff member overheard
defendant refer to women as 'Ifucking, mind controlling bitches1'and
how he could get better if he got Illaid." In addition, defendant
wrote a song about the murder which he occasionally sang to the
women residents. The group home manager overheard defendant
singing the song, the partial lyrics of which are "1 killed her and
the whore deserved it, if I had to do it over, I wouldn't change
a thing." In further violation, defendant was reportedly talking
about the murder, describing the event in graphic detail, to the
other residents as well as a member of the community. One woman
resident became so frightened of defendant that she moved out of
the Harbinger House.
Despite counseling by his therapist and warnings that the
above behavior was inappropriate because it was disruptive and
unsettling for other residents, the defendant did not alter his
behavior appropriately. Furthermore, the group home manager
overheard defendant talking to himself on the back porch while he
was alone. He reportedly said "1 can't do it, I can't do it, not
right now." This reported incident led Mr. George to conclude
that, despite medications, the defendant was responding to auditory
hallucinations which indicated that he required a much more
structured environment than that offered by the group home.
Following the revocation hearing, the District Court ordered
that defendant's conditional release be revoked. We hold the
District Court properly revoked defendant's conditional release.
As his first assignment of error, defendant argues that the
District Court incorrectly admitted hearsay testimony into
evidence. We disagree.
Rule 803 (6), M.R.Evid. provides for the admissibility of
hearsay if the testimony is from records of regularly conducted
activities:
(6) Records of regularly conducted activity. A
memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or
diagnosis, made at or near the time of the acts, events,
conditions, opinions, or diagnosis, if kept in the course
of a regularly conducted business activity, and if it was
the regular practice of that business activity to make
the memorandum, report, record, or date compilation, all
as shown by the testimony of the custodian or other
qualified witness, unless the sources of information or
the method or circumstances of preparation indicate lack
of trustworthiness. The term ubusinessll used in this
as
paragraph includes business, institution, association,
profession, occupation, and calling of every kind,
whether or not conducted for profit.
The District Court established that the recorded entries from which
Mr. George testified were made in the regular course of business
of the Harbinger House. The entries were recorded by defendant's
primary therapist, Randy Moddrell, whose duty it was to make sure
that any reported behavioral problems were recorded in defendant's
file. The entries were recorded when the incidents were fresh in
the therapist's mind, thereby reinforcing their degree of
trustworthiness. We find that the records from which Mr. George
testified were records of regularly conducted activities, and,
therefore his testimony was excepted from the hearsay ban of Rule
802, M.R.Evid., as an exception under Rule 803(6), M.R.Evid.
Defendant asserts that by admitting the hearsay testimony, the
District Court denied defendant due process of law. Defendant
argues that he was not able to confront his accusers as is
guaranteed by the Sixth Amendment of the United States
Constitution. Defendant's argument is misplaced. The
confrontation clause of the Sixth Amendment only attaches to
criminal proceedings. Defendant was adjudged clinically insane and
committed to the Montana State Hospital. Subsequently, the
District Court conditionally released defendant to the Harbinger
House for treatment. The revocation hearing was a summary hearing
to determine if defendant violated his conditional release to the
Harbinger House rather than to establish criminal culpability. The
revocation hearing concerning the re-commitment of defendant to
Warm Springs was a civil proceeding just as was the prior hearing
to conditionally release defendant from Warm Springs. Sections 46-
14-301, MCA, et seq. pertain to the commitment, discharge, release,
and re-commitment of a person to the Montana State Hospital. When
read together, these sections of this statute characterize the
revocation proceeding as civil in nature. This is not a criminal
case. Defendant has not been accused of committing a crime. The
guarantees afforded by the Confrontation Clause do not attach to
revocation hearings of this type which are civil in nature. We
hold that the testimony offered by Mr. George was properly admitted
based on the traditional indicia of reliability that these records
of regularly conducted activity bear, and that defendant was not
denied due process of law when the District Court admitted the
subject testimony.
Defendant's next assignment of error is that the District
Court's determination that the defendant violated the conditions
of his release was not substantiated by sufficient evidence. The
revocation statute, 5 46-14-304, MCA, mandates that the court
immediately recommit any person who has violated the conditions of
his or her release and when the safety of the person and others so
requires. The evidence that the court relies on pursuant to 5 46-
14-304, MCA, must satisfiy the court that the conduct of the person
on release has not been in keeping with the conditions of the
release agreement. In State v. Kern (1984), 212 Mont. 385, 389,
695 P.2d 1300, 1302, we applied this reasonable standard in a
hearing revoking defendant's probation and we now find that it is
also an appropriate standard for the hearing revoking defendant's
conditional release from Warm Springs.
The record before us, as established by Mr. George's
testimony, clearly shows that defendant has violated the group
home's curfew rule several times by getting up late at night to
watch television, even after repeated warnings. In addition,
defendant was in violation of his conditional release calling for
appropriate behavior by frightening the female residents and staff
a ,*
with his graphic details of the murder he committed and his talk
about "mind controlling bitches" and "getting laid1'and his staring
intimidation of women residents.
The evidence is credible, reliable and well grounded within
an established hearsay exception. The evidence upon which the
District Court based its determination to revoke defendant's
conditional release was sufficient to establish that defendant
persistenly violated at least two conditions of his release even
after staff warnings. More importantly, the testimony regarding
defendant's bizarre behavior raised serious questions as to the
safety of other group home residents and the community in general.
Affirmed.
Justice
We Concur:
Chief Justice