No. 90-261
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JOSEPH P. HENSLEY,
L;I -4mitL
CLERK OF S U P R E M E COURY
STATE OF MONTANA
Defendant and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert S. Keller, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James G. Hunt, Dix and Hunt Law Firm, Helena,
Montana.
For Respondent:
Marc Racicot, Attorney General, Helena, Montana;
Jennifer M. Anders, Assistant Attorney General,
Helena, Montana; Scott B. Spencer, Lincoln County
Attorney, Libby, Montana.
Submitted on briefs: September 9, 1991
Decided: November 19, 1991
Filed:
I
Clerk
Justice R. C. ~ c ~ o n o u g h
delivered the Opinion of the Court.
Defendant, Joseph Hensley, appeals from a decision by a jury
of the Nineteenth Judicial District, Lincoln County, convicting him
of sexual intercourse without consent. Hensley was sentenced to 20
years in prison. We reverse and remand for a new trial.
The issues on appeal are:
1. Whether the District Court erred in admitting the testimony
of Ann Anderson, a social worker regarding the credibility of a
sexual abuse victim.
2. Whether the District Court erred in allowing Ann Anderson
to testify about another report of abuse concerning defendant's
wife and son.
3. Did the District Court err in considering the results of
defendant's polygraph examination for sentencing?
4. Did the District Court err in refusing to allow defense
witness to testify on rebuttal?
Defendant Joseph Hensley, was convicted of molesting his
natural daughter, E.H., between 1980 and 1985 while they resided in
Lincoln County. According to the allegations made by E.H., Joseph
Hensley entered her room two or three times a week between 1980 and
1985. According to E.H.'s testimony, the defendant performed oral
sex on her, digital penetration, and at times, made her massage his
penis.
The victim did not report these instances to anyone until 1989
when after arguing with her mother, her mother threatened to send
E.H. to live with her father in California. Because E.H. and her
2
mother were not getting along at the time, E.H. was living with
another woman in the community. This woman encouraged E.H. to
report the incidents because E.H. was having trouble sleeping at
night. E.H. reported the incidents, first to Pat Warneke, a
probation officer, then to Ann Anderson, a social worker for the
Department of Family Services.
On August 10, 1989, an information was filed in Lincoln County
District Court charging Hensley with sexual intercourse without
consent. On January 4, 1990, the defendant was convicted of the
above crime. This appeal followed.
I
Whether the District Court erred in admitting the testimony of
Ann Anderson, a social worker, regarding the credibility of a child
abuse victim.
At trial, E.H. testified that the family lived in three
different trailers during the time the incidents took place. When
the family moved into the first trailer E.H. testified she shared
a bedroom with her two brothers. Approximately halfway through
their stay in the first trailer she moved into her own room. From
then on E.H. testified she had her own room unless relatives, most
often her grandmother, came to visit. During these visits, E.H.
bunked with her brother, but most of the time she stayed on the
couch.
Testimony from other family members indicated that E.H.'s
grandmother shared a room with E.H. for extensive periods of time
during the five year period. E.H.'s younger brother testified he
never saw their father go into E.H. Is room at night. E.H. 's mother
testified on cross-examination that she thought E.H. was lying
about the allegations E.H. made against her father.
The State called Ann Anderson, a social worker, as a rebuttal
witness. The testimony was admitted after objection by the
defendant. Anderson testified as follows:
Q. And do you have any reason to doubt E.H.'s
truthfulness in this case?
A. NoIdon't.
Q. Has there been anything that you have seen that you
are trained in professionally that you use to judge
her truthfulness that indicates she is untruthful?
A. No.
We have previously stated that the credibility of a witness
lies exclusively within the province of the trier of fact. "Expert
testimony regarding credibility improperly invades the jury's
function by placing a stamp of scientific legitimacy on the
victim's allegations. Therefore, we generally will not allow an
expert witness to comment on the credibility of the alleged
victim." State v. Harris (1991), 48 St. Rep. 62, 63, 808 P.2d 453,
455. (Citations omitted.)
However, we have carved out an exception to the rule in the
instance that a young child makes an allegation of sexual abuse and
expert testimony could assist the jury. a.at 455. The exception
is further narrowed in that the child must testify at trial, the
child's credibility -must be brought into question, and the expert
witness must be properly qualified. State v. Sheffelman (1991),-
Mont .-, P.2d, (Cause No. 90-220, decided November 18,
1991). Here the qualifications of the expert were not challenged.
Under the circumstances of this case, when E.H. testified at
trial she was approximately one month shy of seventeen years of
age. She testified that her father sexually abused her over a five
year period. She further testified that she had her own room for
the majority of time during those five years. E.H. ' two brothers,
s
her father and mother contradicted that testimony, alleging that
E.H.'s grandmother and brother often visited the family home which
necessitated that E.H. share her room. E.H.'s credibility was
brought into question when E.H.'s mother testified, in response to
a question on cross-examination by the county attorney, that she
thought E.H. was lying about the allegations E.H. made against her
father.
Even assuming that E.H.'s credibility was properly challenged,
there is a question as to whether the testimony of Ann Anderson
regarding this sixteen year-oldts credibility was proper.
Our earlier cases in which we allowed expert testimony as to
the credibility of a child sexual abuse victim involve very young
children. In State v. Geyman (1986) 224 Mont. 194, 729 P.2d 475,
the victim was nine years old. In State v. French (1988), 233
Mont. 364, 760 P.2d 86, we upheld the district court's ruling that
the school counselor could offer opinion testimony that the six
year old victim was telling the truth.
Commentators have suggested that in limited circumstances an
expert witness may aid the jury by testifying on the credibility of
the child witness. Myers, Expert Testimony in Child Sexual Abuse
Litiqation, 68 Neb.L.Rev. 121, 127 (1989):
[wlhile qualified experts possess specialized knowledge
regarding certain aspects of credibility, expert capacity
to detect lying and coaching is too limited to justify
admission of generalized credibility testimony.
While generalized credibility testimony is properly
excluded, circumstances exist where narrowly tailored
expert testimony may be proper to rebut certain attacks
on credibility. For example, if the defense asserts or
intimates strongly that children as a group lie about
sexual abuse, it seems fair to permit rebuttal expert
testimony .. .
In State v. Haseltine (1984), 120 Wis.2d 92, 352 N.W.2d 673,
the Wisconsin Appeals Court held it was error to admit expert
testimony as to whether a sixteen year old was an incest victim.
The court said, "No witness, expert or otherwise, should be
permitted to give an opinion that another mentally and physically
competent witness is telling the truth." The court went on to
distinguish this case from other sexual abuse cases where expert
testimony would be helpful to the jury. Here E.H. was sixteen
years old, was a competent witness, and was under no physical or
mental disability. A jury is capable of assessing the credibility
of such a witness. We conclude the admission of this testimony was
erroneous and is reversible error.
Whether the District Court erred in allowing Ann Anderson to
testify about another report of abuse concerning defendant's wife
and his son.
At the time of trial Hensley, through his counsel, objected to
testimony by Ann Anderson regarding an earlier report of abuse
involving defendant's wife and son on relevancy grounds. We agree
with the defendant and hold that the testimony was irrelevant to
defendant's guilt or innocence, which was the sole issue at trial.
Did the District Court err in considering the results of
defendant's polygraph examination during sentencing?
Section 37-62-302, MCA, provides that: [r]esults of a
polygraph examination or other test given by an examiner may not be
introduced or admitted as evidence in a court of law." In
expanding this section we have prohibited the introduction of
polygraph examination results in any proceedings in Montana courts
of law. State v. Staat (1991), 48 St.Rep. 331, 811 P.2d 1261. The
introduction and consideration of the results of a polygraph
examination was erroneous.
Did the District Court err in refusing to allow a defense
witness to testify on rebuttal?
Because we reverse and remand for a new trial, we do not
address this issue on appeal.
This judgment is reversed and the cause is remanded to the
District Court for a new trial. 1
not participate in this decision.
Justice Terry N. Trieweiler dissenting in part and concurring in
part.
I dissent from the opinion of the majority. I would affirm
the District Court.
Ann Anderson is a social worker who, at the time of trial, had
been employed by the State Department of Family Services for the
previous 11 years. She had a master's degree in social work. Her
professional duties related primarily to the investigation of
sexual abuse cases. In the ten years prior to giving her
testimony, she had participated in the investigation of
approximately 240 such cases. In addition, she had attended a
number of workshops every year that dealt with sexual abuse, and
had been trained to investigate complaints and evaluate their
veracity.
Ms. Anderson testified that she was responsible for
investigating the complaint of the victim in this case, and in the
course of that investigation had talked to her many times. Ms.
Anderson explained what types of behavior social workers look for
in evaluating the veracity of similar complaints, and answered
questions about whether those forms of behavior existed in this
case. For example, she explained what the appropriate emotional
reaction is for a victim of sexual abuse, and the type of detail
that would be expected from a victim when he or she describes the
abuse that allegedly occurred. She explained how this victim's
conduct compared to what she would expect to see from a victim of
8
abuse, and she testified to the absence of behavior that would
indicate fabrication on the part of this victim. That small
portion of her testimony which is quoted by the majority has to be
put in the above context to be understood. This is not a case
where this witness expressed an opinion that the victim was or was
not testifying truthfully. Therefore, the authorities relied upon
by the majority are not proper authority for the reversal of
defendant's conviction. Neither do I believe that this case is
controlled by State v Hawis
. (Mont. 1991), 808 P.2d 453, 455,
48 St.Rep. 62, 63. This case is different than Harnk because in
this case the victim's credibility was clearly challenged by the
defendant.
I do believe that the testimony of Ms. Anderson provided
specific examples of the victim's past conduct in an effort to
buttress her credibility. Therefore, I would conclude that her
testimony was a violation of Rule 608(b), M.R.Evid., which
provides, in relevant part, that:
Specific instances of the conduct of a witness, for the
purpose of attacking or supporting the witnesst
credibility, may not be proved by extrinsic evidence.
Even though I have concluded that Ms. Anderson's testimony
violated Rule 608 (b), I would not reverse defendant s conviction
because her testimony was never properly objected to on that basis.
Without a proper objection, the District Court had no adequate
opportunity to consider the admissibility of the testimony and the
State could not exercise its option of withdrawing the testimony
based on an appropriate objection.
Section 46-20-104(2), MCA, provides that:
Upon appeal from a judgment, the court may review the
verdict or decision and any alleged error objected to
which involves the merits or necessarily affects the
judgment. Failure to make a timely objection during
trial constitutes a waiver of the objection except as
provided in 46-20-701(2).
None of those exceptions provided for in 46-20-701(2), MCA,
are present in this case.
Section 46-16-201, MCA, provides that the rules of evidence in
civil actions are also applicable to criminal actions, except where
otherwise provided. Rule 103(a), M.R.Evid., provides, in part, as
follows:
Error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party
is affected
(1) ...a timely objection or motion to strike appears
of record, stating the specific ground of objection, if
the specific ground was not apparent from the context
. . .. [Emphasis added.]
In this case, Ms. Anderson's testimony was only objected to by
defendant for the reason that, not proper rebuttal."
However, when given an opportunity to argue the basis for his
objection in chambers and outside the presence of the jury, counsel
for defendant admitted that he had challenged the victim's
veracity. The following conversation occurred, including
defendant's attorney and the court:
THE COURT: The defense has stated in so many words that
this complaining witness is lying.
MR. SHAFFER: That is correct.
Ms. Anderson's testimony was never objected to by defendant as
a violation of Rule 608(b). Nor was it ever objected to for the
reason that it constituted a comment on the credibility of a
witness. Those arguments have been persuasively made by the
attorney representing defendant on appeal. However, he is not the
same attorney who represented defendant at trial; and unfortunately
for everyone involved, those arguments were not made at the time of
trial.
Because of the rules for preserving objections, and because of
their importance in achieving fairness to the parties in the trial
court, I would affirm the jury's verdict, even though I conclude
that the testimony of Ms. Anderson was inadmissible under
Rule 608 (b) .
Neither would I reverse this case on the basis of Ms.
Anderson's reference to her investigation of sexual abuse of Joey
Hensley .
Jane Hensley, the victim's mother, testified during
defendant's case that in her opinion her daughter was lying when
she accused her father of sexual abuse. Following that testimony,
during the State's rebuttal, Ms. Anderson was asked about Jane
Hensley's own reputation for truthfulness. Evidence of a witness's
reputation for being untruthful is admissible pursuant to
5 26-1-302, MCA. However, there has to be some factual foundation
for a witness's ability to offer such testimony. In this case,
11
that foundation was laid by having Ms. Anderson testify that she
was familiar with Jane Hensley based upon her earlier investigation
of alleged abuse of Joey Hensley. She stated that in the course of
that investigation she talked to a number of people, including
school counselors and probation officers, and that based upon those
conversations she was able to conclude that Jane Hensley had a poor
reputation for truthfulness.
Ms. Anderson's testimony regarding the investigation of sexual
abuse involving Joey Hensley was objected to for the reason that
when that abuse was alleged to have occurred defendant was living
in California. The District Court offered to give an instruction
making clear to the jury that defendant was not the subject of
those allegations.
Under Rule 403, M.R.Evid., it was up to the District Court to
determine whether the prejudicial effect of Ms. Anderson's
testimony was outweighed by its probative value. In balancing
those factors, deference should be paid to the District Court
unless there has been an abuse of discretion. Cooper v. Rosston
(1988), 232 Mont. 186, 190, 756 P.2d 1125, 1127. In this case,
where it was clear that because of his absence from the state
defendant was not involved in the other incident of sexual abuse,
and where the District Court offered to make that clearer by so
instructing the jury, I would conclude that there was no abuse of
discretion in allowing Ms. Anderson's testimony as part of the
necessary foundation for her opinion regarding Jane Hensleyts
reputation for truthfulness.
Finally, I concur with the majority's opinion that the results
of polygraph examinations should not be included in material
submitted to the District Court as part of the presentence
investigation. I would remand to the District Court for
resentencing and order that any reference to the polygraph
examination, or its results, be stricken from the materials
considered by the District Court in determining the appropriate
sentence for defendant. In so holding, I would note that there is
no evidence in this record that the District Court improperly
considered defendant's polygraph results in arriving at the
sentence which was imposed. However, for purposes of providing a
guideline for use in future presentence investigation, I believe
the better rule is to set aside any sentence imposed after
consideration of a report which includes the results of a polygraph
examination.
For these reasons, I would affirm defendant's conviction of
sexual intercourse without consent and remand this case to the
~istrictCourt for resentencing pursuant to that conviction.
Justice Fred J. Weber dissents as follows:
I dissent from the majority holding on Issue I which is
whether it was error to admit the testimony of Ann Anderson, a
social worker, regarding credibility of a sexual abuse victim.
The majority has emphasized that the complaining witness was
almost 17 at the time of trial and used age as the foundation for
reversal. It is important to note that the defendant was convicted
of molesting his daughter between the years 1980 and 1985. The
trial took place in January 1990, essentially ten years after the
beginning of the acts in question. While it is true that the
complaining witness was almost 17 at trial, it is also true that
she was between the ages of 7 and 12 when the offenses occurred.
The majority disapproves of the following testimony:
Q. And do you have any reason to doubt E.H. s
truthfulness in this case?
A. No I don't.
Q. Has there been anything that you have seen that
you are trained in professionally that you use to judge
her truthfulness that indicates she is untruthful?
A. No.
The majority opinion quotes from State v. Haseltine (1984), 120
Wis.2nd 92, 352 N.W.2d 673, 676, where the court said "No witness,
expert or otherwise, should be permitted to give an opinion that
another mentally and physically competent witness is telling the
truth." Even if we accept the Wisconsin authority, I question that
the case is good authority when the actual questions and answers
are considered in this case. Initially Ann Anderson had been asked
a number of questions which established her expert capacity in this
area. Then she was asked if she had any reason to doubt the
witness' truthfulness and answered that she did not. That is not
the same as saying the witness had told the truth. It is an
application of her professional training to the conduct of the
witness. Next she was asked if there was anything in her
professional training which she used to judge truthfulness which
indicated to her that the witness was being untruthful. To that
she answered llnoll. Again, this is an application of her
professional training to the evaluation of the conduct of the
witness. It is not the same as an opinion that the witness was
"telling the truth." I would therefore clearly distinguish from
State v. Haseltine.
The testimony established that as a social worker, Ann
Anderson had worked for ten years in the areas of sexual abuse and
had handled approximately two sexual abuse cases per month during
those ten years. As I review her testimony, it was clearly
admissible as it was not so much a specific comment on credibility
as an explanation of how the conduct of this girl was consistent
with the conduct of a sexual abuse victim.
I believe the facts in this case bring it within the exception
referred to by the majority in State v. Scheffelman (1991),
P.2d I - St.Rep. , (Cause No. 90-220, decided November 18,
1991). Under that case, the exception can be applied where the
child testifies at trial, where the child's credibility is brought
into question, and the expert witness has been qualified. Here the
complaining witness did testify at trial and was subject to cross
examination. Here the credibility of the complaining witness was
challenged by her mother, her two brothers, and the defendant
father, who testified that he had never made any type of improper
physical contact and that he had disowned his daughter and she was
"out of the family; I conclude that the evidence clearly
establishes that all three elements of the Scheffelman test were
met with regard to Ann Anderson.
After concluding that the Scheffelman test has been met, I
further conclude there was a clear benefit to the jury as trier of
fact in receiving the testimony of Ann Anderson. The first benefit
was that it gave some additional basis for evaluating the
contradictory testimony on the part of the various members of the
family of the complaining witness. The second benefit is that it
assisted the jury in its evaluation of the testimony of a 16-17
year old as she related the circumstances of assaults which had
occurred ten years earlier. That benefit is strengthened because
of the necessity that the jury evaluate the long delay in reporting
such assaults of ten years earlier.
I recognize the discomfort on the part of the majority at
allowing an expert to testify where the complaining witness is
almost 17 years of age, and the argument that this may be an
improper strengthening of the testimony of a mentally and
physically competent witness. A review of our sexual abuse cases
indicates the state of flux of the law of evidence in the State of
Montana. I have not found a particular basis for concluding that
an expert should not be allowed to testify because the complaining
witness is 16-17 years of age. I do not find anything automatic on
the age factor, and in particular where the sexual abuse occurred
approximately ten years earlier. I believe that the testimony of
the expert was of real assistance in this case. The basic reason
is that the jury did not have an adequate background based on its
own experience to evaluate the contradictory testimony and the
testimony of the complaining witness which stretches over a ten
year period and goes back to age 7. The testimony of the expert
was helpful to the jury in evaluating testimony by a 16-17 year old
as to conduct and responses on her part between the ages of 7 and
12 years of age, an area in which the jury could not be expected to
have expertise.
I further suggest that the standard we are setting here will
be of questionable value in the future. How is the age standard to
be applied? Is it to be based upon an after-the-fact evaluation of
a complaining witness? If we have a brilliant 12 year old, capable
of good self expression, should a conviction be reversed because of
the use of an expert witness? Basically I question the theory of
using age alone as a disqualifying factor. Careful analysis may
well demonstrate that an expert witness may be of assistance to the
trier of fact even where the complaining witness is 17 or older.
I have attempted to show that such a careful analysis here clearly
demonstrates the very real assistance given by the expert witness
to the jury as trier of fact.
I would affirm on this issue.