NO. 93-134
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA.
Plaintiff and Respondent,
-v-
JAMES EDWARD THOMPSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-first Judicial District,
In and for the County of Ravalli,
The Honorable Ed McLean Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender Office,
Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Cregg W.
Coughlin, Assistant Attorney General, Helena,
Montana; George H. Corn, Ravalli County Attorney,
Hamilton, Montana
Submitted on Briefs: October 5, 1993
Decided: December 22, 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
Defendant James Edward Thompson (Thompson) appeals a jury
verdict from the Montana Fourth Judicial District, Ravalli County
(now the Twenty-First Judicial District), which convicted him of
felony assault. We affirm.
The following issues are presented for our review:
1. Did the District Court err in permitting the jury to
consider certain statements made by the defendant at the omnibus
hearing?
2. Did the District Court err in permitting a medical doctor
to testify as to the victim's identification of the perpetrator?
3. Was defendant denied his right to a speedy trial under the
Montana and United States constitutions?
On Monday, March 9, 1992, ten-year-old K.T. was talking to
Cindy Duarte (Duarte), a teacher at the Corvallis school which she
attended. During their conversation, K.T. coughed and grabbed her
side, complaining that her side hurt, and then showed her bruises
and scrapes to Ms. Duarte. Duarte asked K.T. what had happened and
K.T. responded that her stepfather had repeatedly kicked her. Upon
further questioning from Duarte, K.T. revealed another injury on
her leg.
Duarte advised the school principal of what she had observed:
the principal then contacted Linda Heyes (Heyes), a social worker
with the Department of Family Services, who in turn notified the
Ravalli County Sheriff's office. Heyes and Officer Pat Richie
investigated the matter: they met with K.T. at the school and
2
looked at K.T.'s injuries. They noted that K.T. had bruises on her
left arm, on her left torso, on her back, on her legs and on her
shin. Heyes described the injuries as "extensive and severe";
Officer Richie described them as "pretty extensive."
Heyes and Richie took K.T. to the emergency room at Marcus
Daly Hospital in Hamilton because K.T. complained of pain when she
coughed and when she breathed. Dr. Brett Bender, the emergency
room physician, examined K.T. and observed numerous bruises over
K.T. 's chest, back, right leg and left arm. When Dr. Bender asked
her why she was there to see him, she told him that her stepfather
had kicked her numerous times. Dr. Bender noted that the bruises
were 20-30 hours old and were consistent with injuries sustained
from kicking.
When K.T. referred to her "stepfather," she meant the
defendant, James Edward Thompson. Thompson testified that he and
K.T.'s mother are common law husband and wife. Heyes spoke with
Thompson about the incident and he told her that he had grabbed
K.T. by the hair and thrown her up onto a dresser, but that he had
not kicked her. He further claimed that K.T. had injured herself
when she had a tantrum in the garage and threw herself up against
a woodpile, against car parts and then against the woodpile again.
Thompson was charged with felony assault on May 6, 1992.
Counsel was appointed to defend Thompson, but he expressed
dissatisfaction with that representation as well as the public
defender system in general. At the omnibus hearing on May 26,
Thompson asked to personally address the District Court. Against
3
the advice of his counsel, he then read a prepared statement to the
court. Thompson also read the statement although the District
Court had admonished him at the urging of the Ravalli County
Attorney that anything he stated would be used against him. This
statement was subsequently read to the jury at Thompson's trial for
felony assault.
Further facts will be provided as necessary in the opinion.
I.
Did the District Court err in permitting the jury to consider
certain statements made by the defendant at the omnibus hearing?
Prior to trial, Thompson filed a motion in limine to suppress
the admission into evidence of certain statements he had made at
the omnibus hearing. The portion of the transcript of the omnibus
hearing admitted into evidence, which Thompson sought to suppress,
is as follows:
[Thompson]: . . .The first remark refers to two parts of
the First Amendment to the United States Constitution.
This amendment has been and is proven thoroughly in
several cases by state, federal and supreme courts of
these United States.
The charges brought today against me are a direct
and contradictory action against the references to
religion and religious freedom. Christianity in the New
Testament of the Bible refers specifically to the use of
force on and in the rearing of children. It is direct in
its quotation, "To spare the rod and spoil the child."
Mr. CORN: Your Honor, may I object: The Defendant
should be admonished that anything he states can be used
against him.
THE COURT: You previously have been read your
rights, have you not?
THE WITNESS: Yes, I have.
THE COURT: You understand that any of these
4
“.i.---....~ -
statements you are now making can be transcribed and read
to a jury at a later time?
THE WITNESS: Yes, I do.
THE COURT: YOU may proceed.
THE WITNESS: This means that if this Court, through
future hearings, decides I, myself, am guilty of
inflicting damage upon the minor child, which I doubt
will happen,. it must then decide if as a parent or
guardian I, or any parent, am within or without my
constitutional freedoms to do so.
Having not had a formal education in law or
mediation, much of my knowledge is firsthand from reading
this constitutional entry which directly stipulates that
congress or no law-making establishment may or will make
any laws regarding religions.
This openly means that if a person -- any person --
in an attempt to live a life in his personal religious
manner may not be made to submit to the atrocities of
invasion of privacy, discrimination or to answer for his
personal religious views in an open court or to be
brought before a charge which he may believe is a Godly
action.
Remembering that in Christianity, child sacrifice
was also accepted, any form of action less would be a
merciful action.
Over the objection of defense counsel, the prosecutor read the
above-quoted statement aloud during the State's case-in-chief.
Thompson had alleged in his motion in limine that the above
statements were prejudicial because they were the result of an
"emotional outburst" and were irrelevant to the crime charged.
The Distric,t Court denied the motion to suppress the
statements from evidence because Thompson had no basis for
asserting that the statement was an "emotional outburst." In the
Opinion and Order denying Thompson's motion in limine, the District
Court stated:
5
Defendant has filed a Motion in Limine to exclude
the use by the State of a statement which Defendant read
to the Court at the end of the May 26, 1992 omnibus
hearing. Defendant asked the Court if he could read his
prepared statement to the Court. At that time the Court
again advised him of his rights. Defendant responded
that he understood his rights and that he wanted to make
the public statement even though it was against the
advise (sic) of his own counsel. Defendant's argument
that the statement was an emotional outburst is without
factual basis. Defendant appeared calm and composed as
he read the lengthy, pre-prepared public statement to the
Court. Defendant's statement was made voluntarily, with
full knowledge of his rights, and is therefore
admissible. . . .
On appeal, Thompson makes three arguments relating to his
statement. Thompson first contends that the District Court erred
by permitting the State to read the statement because it was
neither an admission nor a confession. He further contends that
the District Court then exacerbated the error by instructing the
jury as to how to weigh the statement as an admission or confession
when in fact the statement was neither an admission nor a
confession. Finally, he claims that the statement was unduly
prejudicial and that any probative value was outweighed by the
prejudicial effect.
We first conclude that this is the sort of statement which
this Court has characterized as an admission. S..e,.e, e.q., State v.
Stevens (1921), 60 Mont. 390, 199 P. 256. Thompson's statement
indicates that he believed that the First Amendment allowed him to
punish his stepdaughter as he saw fit: this statement is
inconsistent with his theory of innocence which was that he did not
inflict the injuries upon K.T. by kicking her and that she had
injured herself in a tantrum. Statements or declarations of
6
independent facts which are inconsistent with any theory of
innocence on the part of a defendant, thus tending to prove the
defendant's guilt although on a different set of facts, are
competent evidence as admissions against interest. Stevens, 60
Mont. at 401-02, 199 P. at 259.
"An 'admission' is defined as an avowal or acknowledgement of
a fact or of circumstances from which, together with other facts,
guilt may be inferred." State v. Goltz (1982), 197 Mont. 361, 369,
642 P.2d 1079) 1084, (quoting 22A C.J.S. Criminal Law
§ 730(a)(1961)). An admission does not acknowledge guilt; rather,
it tends to establish guilt. Goltz
-, 642 P.2d at 1084. See also
_-
People v. Stewart (1984), 473 N.E.2d 840, -.
cert denied sub nom.
Stewart v. Illinois, 471 U.S. 1131, 105 S.Ct. 2666, 86 L.Ed.2d 283,
reh'g denied 473 U.S. 921, 105 S.Ct. 3548, 473 U.S. 921, 87 L.Ed.2d
671.
We further conclude that the District Court did not err when
it instructed the jury with regard to admissions and confessions by
giving the following jury instruction:
Admission or confession.
A statement made by a defendant other than at this
trial may be an admission or confession.
A confession, as applied in criminal law, is a
statement by a person made after the offense was
committed that he committed or participated in the
commission of a crime. An admission is a statement made
by the accused, direct or implied, of facts pertinent to
the issue, and tending, in connection with proof of other
facts, to prove his guilt. A conviction cannot be based
on an admission or confession alone.
The circumstances under which the statement was made
may be considered in determining its credibility or
7
admission or a confession was made by the defendant, and
if so, whether such statement is true in whole or in
part. If you should find that any such statement is
entirely untrue, you must reject it. If you find it is
true in part, you may consider that part which you
consider to be true.
Evidence of an oral admission or oral confession of
the Defendant should be viewed with caution.
Thompson claims that the court erred when it instructed the
jury as to both a confession and an admission. This Court has
previously ruled that if the instructions, viewed as a whole, fully
and fairly instruct the jury on the law applicable to the case, we
will find no error on the part of the district court. State v.
Lundblade (1981), 191 Mont. 5.26, 529, 625 P.2d 545, 548.
It is important that the jury be made aware of the distinction
between an admission and a confession and that a conviction cannot
be based on an admission alone. In State v. Hallam (1978), 175
Mont. 492, 503, 575 P.2d 55, 62, we stated that "a 'confession' is
an admission of the crime itself and an 'admission' concerns only
some specific fact which, in turn, tends to establish guilt or some
element of the offense." Here, the court made the jury aware of
the distinction between an admission and a confession by the jury
instruction quoted above. The court further instructed the jury to
view an admission or a confession with caution. The instruction
left it up to the jury to determine what it was, whether or not it
was there and what effect to give it. The instruction is a correct
statement of the law. We conclude that the District Court did not
err in instructing the jury on the law applicable to this case.
Finally, Thompson contends that his statements should have
8
been excluded, even if relevant, because the prejudicial effect of
the evidence outweighed any probative value. Admissions by a party
opponent which are not hearsay are admissible, but they are still
subject to other rules of evidence and to constitutional
safeguards. A statement containing admissions such as Thompson's
above-quoted statement is not hearsay. Rule 801(d)(2), M.R.Evid.
The Rules of Evidence provide that evidence must be relevant
to be admissible. Rule 402, M.R.Evid. Relevant evidence may be
excluded if the danger of unfair prejudice substantially outweighs
its probative value. Rule 403, M.R.Evid. The probative reason for
the State's introduction of the statement into evidence is that the
statement is inconsistent with Thompson's claim at trial that he
had not kicked K.T., thus tending to throw doubt upon the denial at
trial.
The probative value, therefore, of the use of admissions
is twofold:
In the first place, all admissions may furnish, as
against the opponent, the same discrediting inference as
that which may be made against a witness in consequence
of a prior self-contradiction; . . . [Secondly,] all
admissions, used against the opponent, satisfy the
hearsay rule, and, when once in, have such testimonial
value as belongs to any testimonial assertion under the
circumstances: and the more notably they run counter to
the natural bias or interest of the party when made, the
more credible they become: this element adding to their
probative value, but not being essential to their
admissibility.
4 J.Chadbourn, Wiamore on Evidence 5 1048 (1972) (emphasis is
original).
A requirement that the statement be voluntary relates to the
Fifth Amendment privilege against self-incrimination and from
9
requirement of due process. 23 C.J.S. Criminal Law § 892 (1989).
Whether a statement is voluntary also turns on the "totality of the
circumstances" of the particular case. 23 C.J.S. Criminal Law
f? 893 (1989).
. . . The question is whether [an] accused's will
was overborne, so that the statement is not the product
of a rational intellect and a free will. The statement
must not have been extracted by the exercise of any
improper influence.
Various factors are considered. A statement is not
necessarily voluntary merely because it resulted from a
knowing choice in the sense of a choice made by a person
with a capacity for conscious choice, or was preceded by
other incriminating statements, or because of various
other factors.
23 C.J.S. Criminal Law § 893 (1989).
In State v. Gould (1985), 216 Mont. 455, 466, 704 P.2d 20, 28,
we emphasized that the determination of admissibility is based on
the "totality of the circumstances." We said:
An admission is competent and admissible where the
defendant iS found capable of understanding and
responding in an intelligent manner. This determination
is based upon the totality of the circumstances, which
includes consideration of the "defendant's demeanor,
coherence, articulateness, his capacity to make full use
of his faculties, his memory and his overall
intelligence." . . . (Citation omitted.)
In Gould, the defendant and another person were involved in an
automobile accident, in which the other person was killed. When
help arrived at the scene of the accident, Gould was unconscious
and he did not speak until he was warmed up. At the scene of the
accident, Gould stated that he had been driving. Gould later
denied that he had been driving, claiming that the deceased person
had been driving. He contended that his statement that he was
10
driving, made after the accident, should not be admitted in his
trial for negligent homicide because he was in shock and so
intoxicated that he was incapable of making a voluntary statement.
The admission was allowed into evidence as being competent because
the evidence indicated that Gould became coherent and was able to
carry on a normal conversation with no delay in responses, his
responses were clear and understandable, and his responses were
logical and rational. There was additional evidence that Gould's
blood pressure and pulse were within a normal range and that he
responded consistently when asked whether he had been driving the
vehicle. Gould, 704 P.2d at 28-29.
Here, the District Court determined that the defendant
understood his rights and that he wanted to make the public
statement even though it was against the advice of his court-
appointed counsel. We conclude that the District Court based its
decision to admit the defendant's statement on a totality of the
circumstances, properly considering relevant factors including
those referred to in Gould. The court specifically noted that
Thompson made the statements voluntarily "with full knowledge of
his rights" and that "Defendant appeared calm and composed as he
read the lengthy, pre-prepared public statement to the Court."
The District Court's determination of admissibility will not
be disturbed absent an abuse of discretion. State v. Hall (1990),
244 Mont. 161, 169, 797 P.2d 183, 189. The balancing of probative
value versus unfair prejudice of evidence is within the discretion
of the trial court. State v. Devlin (1991), 251 Mont. 278, 283,
11
825 P.2d 185, 188..
In Devlin, the trial court excluded some of the photographs
which the State had intended to submit because they were gruesome,
but did not exclude all of the photographs. In this case,
Thompson's statements could be considered as having significant
probative value if the jury concluded that they established his
state of mind and were relevant because they were inconsistent with
his statements that the child had injured herself. The danger of
"unfair prejudice" is the danger that the evidence will prompt the
jury to decide the case on an improper basis. Unfair prejudice can
arise from facts that arouse the jury's hostility or sympathy for
one side without regard to its probative value, evidence that
confuses or misleads the trier of fact, or evidence that might
unduly distract the jury from the main issues. 1 3. Strong,
McCormick on Evidence § 185 (4th ed. 1992). The District Court
warned Thompson that his statements could be read to the jury at
the trial but Thompson nonetheless proceeded to read the statement
to the court. The District Court also instructed the jury, at
Thompson's request, as follows:
Use of force by parent, guardian, or teacher. A parent
or an authorized agent of any parent or guardian, master,
or teacher is justified in the use of such force as is
reasonable and necessary to restrain or correct his
child, ward, apprentice or pupil.
In State v. Higareda (1989), 238 Mont. 130, 134, 777 P.2d 302,
305, we affirmed the district court's admission into evidence of
defendant's statement to his parole officer that he "really screwed
up." We stated:
12
The defendant voluntarily made the statements after he
had been arrested and advised of his rights . . .
Defendant initiated the conversation . . . Although
defendant was required to inform his parole officer of
arrest, the statements he made during the telephone
conversation were not a result of an interrogation but
were made freely and conveyed voluntarily. While some
prejudicial effect is inherent in this type of testimony,
we cannot say that it outweighed the probative value.
Hisareda, 777 P.2d at 305.
We conclude that any danger that the case could be decided on
an improper basis here was outweighed by the probative value of the
evidence.
We hold that the District Court did not abuse its discretion
by permitting the jury to consider the statements made by the
defendant at the omnibus hearing.
II.
Did the District Court err in permitting a medical doctor to
testify as to the victim’s identification of the perpetrator?
During the State's case-in-chief, Dr. Bender was asked if he
had determined how the bruises had occurred. He responded that he
typically asks his patients an open-ended question, such as "Why
are you here to see me?” Over the objection of defense counsel,
Dr. Bender was allowed to testify that K.T. had told him that her
stepfather had inflicted her injuries by kicking her in response to
his general question of why she was there to see him.
Thompson contends that the physician was properly allowed to
testify as to his diagnosis or treatment and as to the mechanism of
the injury, but that he should not have been allowed to testify as
to the identity of the person who kicked her because it had no
relevance to his diagnosis or treatment. Thompson also contends
13
that although Dr. Bender did testify that it was important for him
to know the mechanism of injury to determine if X-rays were
necessary, he did not testify that it was important for him to know
who delivered the impact.
Thompson relies on State v. Harris (1991), 247 Mont. 405, 808
P.2d 453, for his argument that Dr. Bender should not have been
allowed to testify that K.T. had told him her stepfather had kicked
her. Harris does not prevent a medical doctor from testifying
about statements made for purposes of medical diagnosis and
treatment--it prevents a counselor from testifying about the
credibility of a child victim of sexual abuse. Harris, 808 P.2d at
457. Statements made to a medical doctor for the purpose of
medical diagnosis or treatment are admissible, including statements
relating to "the inception or general character of the cause or
external source thereof." Rule 803(4), M.R.Evid.
Statements made to medical doctors for the purpose of medical
diagnosis and treatment must satisfy a two-part test before they
come within the Rule 803(4), M.R.Evid., exception to the hearsay
rule: (1) the declarant's motive in making the statement must be
consistent with seeking medical treatment and (2) the statement
must be of a type reasonably relied on by a physician when making
diagnosis and treatment decisions. Harris, 808 P.2d at 457. In
this case, Dr. Bender testified as follows:
[Dr. Bender] After interviewing the patient, I asked
exactly what had happened, and after examining her, I did
order a chest x-ray as well as an x-ray of the left
humerus, which is the upper part of the arm.
Q Referring your attention to your interview of the
14
patient, did you determine how the injuries occurred?
A I always come into the room initially with an open-
ended question, meaning I ask most of my patients, and
[K.T.] particularly, "Why are you here to see me?"
Q What was her response, Doctor?
. . .
A The patient told me she was here because her
stepfather had kicked her a number of times and caused
the bruises, and then she showed -- she pointed to her
extremities and chest.
Q Why was it important for you to know the cause of
injury?
A It is important to know the specific mechanism of
injury to determine, for example, force and to determine
further evaluation. In this case I thought it was
necessary to know the mechanism of injury to find out if
I needed to order x-rays or not, and I determined that I
did. So, the chest x-ray and left humerus x-rays were
ordered.
The record demonstrates that K.T.' s statement identifying her
perpetrator was made in connection with Dr. Bender's treatment of
her and was of the type that is reasonably relied on by physicians
in general when making diagnosis and treatment decisions. The
record further demonstrates that Dr. Bender gained the necessary
information from which he concluded that X-rays were indeed
required to determine the full extent of K.T.'s injury. K.T. 's
response to Dr. Bender's question was a response such as is
reasonably relied on by physicians in general and in this case
resulted in the actual taking of X-rays. We conclude that Dr.
Bender's statements were admissible under the two-part test set
forth in Harris.
We hold the District Court did not err in permitting Dr.
15
Bender to testify as to K.T.' s identification of Thompson as the
perpetrator.
III.
Was defendant denied his right to a speedy trial under the
Montana and federal constitutions?
The right to a speedy trial in a criminal prosecution is a
fundamental right that is guaranteed to the accused by the Sixth
and Fourteenth Amendments to the United States Constitution and by
Article II, Section 24 of the Montana Constitution. Thompson
asserts that he has been denied this right by a delay of 203 days
between his appearance before the justice court and his trial on
the assault charge and that he is entitled to reversal of the
conviction and dismissal of the charge. We disagree.
The test used to determine whether a defendant's
constitutional right to a speedy trial has been violated was set
forth in Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182,
2192, 33 L.Ed.2d 101, 117. This Court adopted the Barker test in
State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 518,
568 P.2d 162, 163-64, stating:
These cases involve a sensitive balancing of four
factors, in which the conduct of the prosecution and the
defendant are weighed in determining whether there has
been a denial. of the right to a speedy trial.
The four factors to be balanced are (1) the length of the delay;
(2) the reason for the delay; (3) the defendant's assertion of his
right; and (4) prejudice to the defendant. Barker, 407 U.S. at
530-32, 92 s.ct. at 2192-93, 33 L.Ed.2d at 117-18.
Len&h of delay
16
The first factor, the length of the delay, is of primary
importance as the other three factors need not be considered unless
the length of the delay is presumptively prejudicial. State v.
Dahms (1992), 252 Mont. 1, 12, 825 P.2d 1214, 1220. Whether the
length of delay will be considered presumptively prejudicial
depends on the facts of each case. Dahms, 825 P.2d at 1220. The
initial determination concerning the length of the delay is made
without allocation of delay to either party. Dahms, 825 P.2d at
1220. A delay of over 200 days will usually trigger the full
analysis. Dahms,. 825 P.2d at 1220-21.
In this case, 203 days is presumptively prejudicial to the
defendant; thus, the remaining three factors must be considered.
However, no particular factor is determinative; all four must be
weighed in light of the facts and circumstances of the case. State
v. Morris (1988), 230 Mont 311, 317, 749 P.2d 1379, 1382.
Reasons for delay
In considering the second factor, the reasons for the delay,
we allocate the delay by determining how much time is attributable
to each party. State v. Heffernan (1991), 248 Mont. 67, 71, 809
P.2d 566, 568. In this case, the District Court set the trial date
for the next term of court. The cause for the delay was purely
institutional and is therefore chargeable to the State. State v.
Hembd (1992), 254 Mont. 407, 413, 838 P.2d 412, 416.
However, institutional delay weighs less heavily against the
State than does purposeful delay. Hembd, 838 P.2d at 416. As in
Hembd, nothing in the record in this case points to any purposeful
17
delay by the State.
Assertion of the rioht to a soeedv trial
Thompson satisfied this element by moving to dismiss on speedy
trial grounds prior to trial. However, he initially asserted his
right to a speedy trial on November 5, 1992--just four days prior
to trial. In denying Thompson's motion to dismiss on speedy trial
grounds, the District Court noted that Thompson did not object to
the trial date at the omnibus hearing when the date was set nor did
he make any demand for a speedier trial. This was the normal
method of scheduling criminal jury trials in Ravalli County. In
the order dated November 9, 1992, the court further noted that
three other district judges had since had criminal trial terms in
Ravalli County, defense counsel had knowledge of the calendaring of
criminal jury trials in Ravalli County and could have requested
that one of the other district judges assume jurisdiction if
defendant wanted a speedier trial. In State v. Mooney (1991), 248
Mont. 115, 119, 809 P.2d 591, 594, we said that a failure to object
to a lack of a speedy trial until four days prior to trial showed
a lack of actual interest in moving the case forward to trial and
should be considered in balancing the Barker factors. We conclude
that defendant's claim of the prompt assertion of his right to a
speedy trial is both questionable and weak. Thompson's failure to
object to a trial date at the omnibus hearing and his further
failure to request trial at an earlier date by another judge must
be considered as he asserts denial of a speedy trial.
Prejudice to defendant
18
This Court has identified three factors which should be
considered in determining prejudice: (1) pretrial incarceration;
(2) anxiety and concern; and (3) impairment of defense. Hembd, 838
P.2d at 416. All are important but the most critical factor is
impairment of the defense. Mooney, 809 P.2d at 595. APPlYing
these factors to the record before us, we conclude that Thompson
was not prejudiced by the delay.
Thompson was not incarcerated prior to trial. We have
previously stated that a certain amount of anxiety and concern is
inherent in being charged with a criminal defense and that the
existence of anxiety or emotional distress is notoriously difficult
to prove. State v. Curtis (1990), 241 Mont. 288, 303, 787 P.2d
306, 316. However, Thompson did not move for an earlier trial date
and did not object to the date at the omnibus hearing. Moreover,
nothing in the record indicates that the defense was impaired by
the delay nor has Thompson alleged any such impairment. We
conclude that Thompson was not prejudiced by the delay.
In sum, although the delay is properly attributable to the
State, the 203-day delay was not unduly long under the
circumstances of this case and the defendant has not shown that he
was prejudiced. 'Thompson could have requested that the trial be
moved forward. Further, Thompson waited until four days before
trial to move for a dismissal based on a speedy trial; this appears
to be a tactical ploy rather than a serious concern on his part.
We conclude that the District Court did not err in denying
Thompson's motion to dismiss on speedy trial grounds.
19
We hold defendant was not denied his right to a speedy trial
under the Montana and federal constitutions.
Affirmed.
Justices
20
Justice Terry N. I'rieweiler dissenting.
I dissent from that part of the majority opinion which
concludes that the District Court did not err when it admitted
statements made by defendant at his omnibus hearing, and when it
instructed the jury on how to consider "admissions" and
"confessions."
Nothing that defendant said at his May 26, 1992, omnibus
hearing even remotely approaches an admission or a confession. In
fact, he stated that he doubted he would be found guilty of having
inflicted injury upon his daughter, but then argued that in the
unlikely event that that occurred, the conduct of which he was
accused was protected by the Constitution. His argument was not
unlike arguments made by lawyers on behalf of their clients every
day in both civil and criminal cases. It was a legal argument
which asked the court to assume facts without admitting the truth
of the facts alleged, but then requested the court to conclude that
even assuming those facts to be true, they were legally
insufficient.
"A confession is a direct acknowledgment of guilt on the part
of the accused . . . .'I ~tatev.&wm (1921), 60 Mont. 390, 402, 199
P. 256, 259. At no time during the omnibus hearing, or in the
transcript that was read to the jury, did defendant acknowledge his
guilt.
An admission has previously been defined by this Court as "a
statement by the accused, direct or implied, of facts pertinent to
21
the issue, and tending, in connection with proof of other facts, to
prove his guilt, but of itself is insufficient to authorize a
conviction." SteVem, 60 Mont. at 402, 199 P. at 259; SeeakoStatev.
Hallam (1978), 175 Mont. 492, 503, 575 P.2d 55, 62 ("[AIn
'admission' concerns only some specific fact which, in turn, tends
to establish guilt or some element of the offense."); Statev. Goltz
(l-2) t 197 Mont. 361, 369, 642 P.2d 1079, 1084 ("An 'admission' is
defined as ‘an avowal or acknowledgment of a fact or of
circumstances from which, together with other facts, guilt may be
inferred."')
There is no fact admitted during defendant's entire dialogue
with the court which infers that he assaulted his daughter.
Therefore, the entire conversation was irrelevant to the issues the
jury was being asked to decide and should not have been admitted.
In addition, assuming (again for the sake of argument) that
the evidence was relevant, it should have been excluded under
Rule 403, M.R.Evid. It had little, if any, probative value on the
issue of whether the act defendant was accused of actually
occurred, and it must have created great prejudice to let the jury
know that defendant held such a bizarre religious view.
In fact, the prejudicial effect of this evidence is obvious
from the arguments made by the prosecutor to the jury after the
close of evidence. The prosecutor effectively exploited this
prejudicial evidence when he argued that:
2 2
He doesn't think he can be prosecuted in this state
for his use of force on a child based on a religious
belief. Well, that is just not the law in Montana. Does
your common sense tell you that that philosophy is what
we should allow in the State?
Folks, this is a court of law, but you're supposed
to keep your common sense when you come in here, and
doesn't your common sense tell you that that kind of an
attitude ends up with the kind of injuries that we saw on
Karri Thompson?
I-low did this statement read? "Any action less than
sacrifice would be merciful." Well, those pictures
didn't look very merciful. Those pictures looked
abusive, looked like an assault to me.
Later on in rebuttal argument, the prosecutor argued that:
Society cannot allow this Defendant, or anyone, to punish
or abuse as he sees fit and then justify it on the basis
of his religion or hiding behind the Bible, if you will.
It is clear from these arguments that once defendant's
comments regarding the Bible and the Constitution were read to the
jury, the focus of the prosecution was largely that defendant
should be punished for his religious beliefs. The issue should
have been limited to whether or not defendant committed the acts of
which he was accused.
The District Court's error was compounded when it instructed
the jury regarding the effect of not only admissions, but also
confessions. In statev. Starr (1983), 204 Mont. 210, 217, 664 P.2d
893, 897, we stated that:
In determining whether to give an instruction, the
inquiry of the District Court must only be whether any
evidence exists in the record to warrant an instruction
on the theory or issue submitted.
23
I concur with the defendant's position that, conversely, when
no evidence exists to support a submitted instruction, the
instruction should not be given.
In this case, nothing in the remarks of defendant, which are
set forth in the majority opinion, can be construed as an
admission. If his remarks did not amount to an admission, they
certainly did not amount to a confession. To even imply to the
jury that something defendant said could be construed as a
confession was highly prejudicial to him.
I specially concur with the majority's conclusion that
defendant was not denied his right to a speedy trial. However, I
do not agree with everything that is said in that part of the
opinion. Specifically, I do not agree with the majority's
conclusion that the time at which defendant asserted his right to
a speedy trial should be considered in balancing the Barker factors.
Either he asserted his right in a timely fashion, or he did not.
The majority concluded that he did assert his right in a timely
fashion, and therefore, it should simply move on to the next
consideration. It seems nonsensical to say that some assertions of
the right to speedy trial can be timelier than other assertions.
However, in spite of this disagreement with part three of the
majority's analysi.s, I conclude that defendant was not denied his
right to speedy trial based on a lack of evidence that he was
prejudiced by the delay which occurred.
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For these reasons, I would reverse the judgment of the
District Court, I would exclude the transcript of defendant's
remarks made at his omnibus hearing, and I would remand to the
District Court for retrial without the excluded evidence or the
prejudicial and irrelevant instructions which were given.
Justice William E. Hunt, Sr., joins the foregoing dissent.
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Justice Karla M. Gray concurring in part and dissenting in part.
I join Justice Trieweiler's dissent on issue one in which he
concludes that the District Court erred in permitting the jury to
consider certain statements made by the defendant at the omnibus
hearing and in instructing the jury regarding admissions and
confessions. I also join in Justice Trieweiler's special
concurrence on issue three regarding speedy trial. I dissent
separately from the Court's opinion on issue two because it is my
view that the District Court erred in permitting a medical doctor
to testify as to the victim's identification of the perpetrator.
The Court relies on Rule 803(4), M.R.Evid., in concluding that
Dr. Bender was entitled to repeat K.T.'s statement that her
stepfather was the person who had kicked her. I agree with the
Court that statements made to medical doctors for the purpose of
medical diagnosis and treatment are admissible under Rule 803(4) as
an exception to the hearsay rule when the declarant's motive in
making the statement is consistent with seeking medical treatment
and the statement is of a type reasonably relied on by a physician
when making diagnosis and treatment decisions. I also agree that
K.T.'s statement meets the first prong of this test because her
motive in making the statement was consistent with seeking medical
treatment.
I disagree, bowever, that the portion of K.T.'s statement in
which she identified her stepfather as the person who had kicked
her meets the second prong. The identity of the alleged
perpetrator has nothing whatsoever to do with the doctor's need to
26
know how the injury came about. The doctor does not rely in any
way on the identity of the alleged perpetrator when making
diagnosis and treatment decisions: only that portion of K.T.'s
statement identifying the "mechanism" of the injury as repeated
kicks is relevant. to diagnosis and treatment. It is that portion
of the statement which resulted in the taking of X-rays in this
case and not, as the Court suggests, the portion in which she
identified her stepfather as the person who had kicked her.
On that basis, I conclude that Dr. Bender should not have been
permitted to testify as to K.T.'s identification of the
perpetrator. I would reverse the District Court on this issue.
27