No. 92-052
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DARYL SCOTT,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Broadwater,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Leo J. Gallagher, Attorney at Law, Helena, Montana
For Respondent:
Honorable Marc Racicot, Attorney General; Jennifer
Anders, Assistant Attorney General, Helena, Montana
John T. Flynn, Broadwater County Attorney,
Townsend, Montana
Submitted: February 2, 1993
Decided: April 1, 1993
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Daryl Scott (Scott) appeals his conviction for sexual assault
following a jury trial in the District Court for the First Judicial
District, Broadwater County. We affirm the conviction.
The issues raised in this appeal are restated as:
1. Did the District Court err in refusing to grant Scott's
motion to dismiss for lack of speedy trial?
2. Was Scott's right to confrontation denied because the
District Court allowed the testimony of the victim to be videotaped
and shown at trial without first requiring the State to make a
showing of necessity?
3. Did the filming techniques utilized by the video-camera
operator prejudice Scott by serving to emphasize the victim's
testimony and inflame the jury's passion?
4. Did the District Court err in denying Scott's motion for
a continuance prior to videotaping the victim's testimony?
5. Was certain testimony of the victim's therapist,
regarding the victim's psychiatric symptoms, improperly admitted by
the District Court?
6. Did the District Court err by instructing the jury that
the State was not required to state the time and place of the
alleged criminal offense with impossible precision?
In July 1990, the victim, J.R., told her grandmother that
Scott, the child's stepfather, had sexually assaulted her sometime
in the fall of 1989. The grandmother relayed these allegations to
J.R.'s mother. Apparently, the grandmother was not satisfied with
the course of action taken by the mother. Several weeks later, the
grandmother filed a report of child abuse with the Broadwater
County Sheriff's Office. In addition, the grandmother took J.R. to
see a social worker who interviewed J.R. about the allegations on
September 14 and 17, 1990.
At the first interview, J.R. did not specifically tell the
social worker that Scott had sexually assaulted her. At the second
interview, J.R. relayed that Scott had sexually assaulted her in
late September or early October, 1989. Scott was arrested on
September 27, 1990.
On October 10, 1990, the State of Montana (State) filed an
information against Scott charging him with one count of sexual
assault in violation of 5 45-5-502 (1) and ( 3 ) , MCA. Scott was
released from jail on bond on October 19, 1990. A jury trial held
on June 10 and 11, 1991, resulted in a verdict of guilty. Scott
was sentenced to twenty years in the Montana State Prison, with ten
years suspended. In addition, Scott was ordered to complete a
sexual offenders program upon his release from prison. It is from
this conviction that Scott appeals.
Did the District Court err in refusing to grant Scott's motion
to dismiss for lack of speedy trial?
Scott contends the prejudice caused to him by the delay
between his arrest and the time of trial violated his
constitutional right to a speedy trial. He argues the State failed
to provide an excuse reasonable enough to overcome the
constitutional presumption that a delay of the length in this case,
256 days, prejudiced him. We agree that a delay of 256 days is
sufficient to trigger inquiry as to whether a defendant's right to
a speedy trial has been violated. However, we do not agree the
State failed to overcome the presumption that the delay in this
case prejudiced Scott.
Under the Sixth Amendment of the United States Constitution
and Article 11, Section 24, of the Montana Constitution, defendants
in all criminal proceedings are guaranteed the right to a speedy
trial. State v. Hembd (Mont. 1992), 838 P.2d 412, 416, 49 St-Rep.
788, 790. In ascertaining whether the right to a speedy trial has
been violated, a sensitive four-part balancing test is analyzed.
State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 518,
568 P.2d 162, 163. The factors to be balanced are: the length of
delay; the reasons for the delay; assertion of the right by the
defendant; and the prejudice to the defendant. State v. Reynolds
(1990), 243 Mont. 1, 4-5, 792 P.2d 1111, 1113.
The length of delay which is "presumptively prejudicial
depends on the facts of each individual case." State v. Dahms
(1992), 252 Mont. 1, 12, 825 P.2d 1214, 1220, citing State v.
Heffernan (lgpl), 248 Mont. 67, 70, 809 P.2d 566, 568. However, we
have held that a delay of over 200 days will usually trigger the
full analysis. Dahms, 825 P.2d at 1220-21. In this case, a delay
of 256 days, all of which was attributable to the State, is
sufficient to warrant further inquiry.
Once a delay is sufficient in length to trigger a full speedy
trial inquiry, a presumption exists that the defendant has been
denied a speedy trial. Reynolds, 792 P.2d at 1113. At this point,
"the burden shifts to the state to either offer a reasonable excuse
for the delay or demonstrate that the defendant was not prejudiced
by the delay." Revnolds, 792 P.2d at 1113.
In the case at bar, the State moved twice to continue the
trial date. The first motion was made on January 23, 1991, and the
second on April 4, 1991. Scott acquiesced to these continuances
with the understanding that his right to a speedy trial would be
preserved. The first continuance was requested because in the
opinion of Dr. N.M. Campbell, it would not have been in the best
interests of J.R. to be subjected to any extensive and intensive
interviewing until she had undergone further psychological
evaluation and counseling. The second continuance was requested
because the therapist conducting J.R.'s sexual trauma assessment
could not make an accurate assessment of J.R.'s ability to testify
until May 1, 1991.
In addressing the reasons for the delay, Scott contends the
State did not offer a reasonable excuse because it delayed
obtaining counseling for J.R. While the record reveals that J.R.
did not see a therapist until mid-January 1991, it also reveals the
reason for the delay was the unavailability of a therapist.
Testimony elicited from a defense witness reveals that J.R. was on
a waiting list for approximately four and one-half months before a
therapist was finally able to work with her.
In Reynolds, we were confronted with a similar set of facts
regarding the unavailability of a material witness for the State to
testify because of emotional instability. ~eynolds,792 P.2d at
1114. Like the victim in the instant case, the victim in Reynolds
required psychological therapy to enable her to testify without
suffering further psychological damage. We held that the State
provides a reasonable excuse for the delay when a material witness
is unavailable to testify. Reynolds, 792 P.2d at 1114. "The State
is not charged with speedy trial delay when a material witness with
a 'valid reason1 is not available." State v. Tilly (l987), 227
Mont. 138, 142, 737 P.2d 484, 487. The unavailability of
counseling for four and one-half months, and the need to obtain
such counseling before J.R. would be able to testify, constitutes
a valid excuse.
In addressing the third Reynolds factor, the record reveals
that Scott asserted his right to a speedy trial in a May 22, 1991
motion to dismiss. Therefore, this prong has been satisfied.
The final factor to be analyzed is the prejudice to the
defendant. Where the trial in a criminal proceeding has been
delayed, three interests of the defendant may be prejudiced.
Tilly, 737 P.2d at 487. Those interests are: to prevent oppressive
pretrial incarceration; to minimize the anxiety of the accused; and
6
...
to limit the possibility the defense will be impaired. Tilly, 737
P.2d at 487.
When applied to the facts in this case, we hold Scott's
interests were not prejudiced by the State's delay in bringing this
case to trial. First, on October 19, 1990, approximately three
weeks after his arrest, Scott was released from jail after posting
bond. The duration of Scott's pretrial incarceration was not
oppressive. Second, Scott does not contend, nor does the record
reveal, he suffered undue anxiety or concern. Finally, we do not
agree with Scott's contention that his defense was impaired by the
delay.
Scott argues the record is replete with instances where child
witnesses could not remember important details thereby impairing
his defense. However, the record indicates that those details
which the child witnesses were unableto recall actually benefitted
the defense. For example, one of the allegations in this case was
that Scott assaulted J.R. while she was sitting on his lap steering
the car while other children were present in the car. When one of
the witnesses was questioned about this, the following testimony
was elicited:
Q. Okay. And did [J.R.] or did Daryl let [J.R.] drive
back from the trip that you are talking about?
A. I don't remember.
Furthermore, another witness testified similarly:
Q. Okay. So you remember all of you being in the back
seat and [ J . R . ] being in the front seat? Do you remember
[ J . R . ] ever driving the car?
A. I am not sure.
Q. When you say you are not sure, you just don't
remember or --
A. I don't remember.
We hold the defense was not impaired by the State's delay in
bringing this case to trial. Furthermore, we hold Scott1s
constitutional right to a speedy trial was not violated.
Was Scott's right to confrontation denied because the District
Court allowed the testimony of J . R . to be videotaped and shown at
trial without first requiring the State to make a showing of
necessity?
Both the United States and the Montana Constitutions guarantee
a criminal defendant the right to confront the witnesses against
him. Amend. VI, U.S.Const.; Art. 11, Sec. 24, Mont-Const. Scott
alleges his right to confront the key witness against him was
violated because: (1) the District Court allowed the victim's
testimony to be videotaped and shown to the jury without a prior
finding that there was a compelling reason to do so; and (2)
because he and the jury were deprived of the ability to observe the
demeanor of the witness in the courtroom.
Sections 46-15-401 and 46-15-402, MCA (1989) (both repealed
and recodified as 5 46-16-216, MCA), controlled the admissibility
and procedural aspects of videotaped testimony in this case.
For any prosecution commenced under 45-5-502(3) ... ,
the testimony of the victim, at the request of such
victim and with the concurrence of the prosecuting
attorney, may be recorded by means of videotape for
presentation at trial. The testimony so recorded may be
presented at trial and shall be received into evidence.
The victim need not be physically present in the
courtroom when the videotape is admitted into evidence.
Section 46-15-401, MCA (1989). Section 46-15-402, MCA (1989),
reads:
(1) The procedural and evidentiary rules of the state of
Montana which are applicable to criminal trials within
the state of Montana shall apply to the videotape
proceedings authorized by this part.
(2) The district court judge, the prosecuting attorney,
the victim, the defendant, the defendant's attorney, and
such persons as are deemed necessary by the court to make
the recordings authorized under this part shall be
allowed to attend the videotape proceedings.
Under the above statutory scheme, a request by a victim of
sexual abuse, along with the concurrence of the prosecutor, allows
the videotaping of the victim's testimony for possible introduction
at trial. If offered, 5 46-15-401, MCA (1989), mandates the
videotaped testimony be received into evidence. We note that this
requirement is subject to all applicable rules of evidence.
Furthermore, 5 46-15-402(2), MCA (1989), preserves a defendant's
constitutional right to confrontation by allowing him to be present
at the videotaping proceedings. Scott contends this statute is
unconstitutional because it does not require the State to make a
preliminary showing that the victim is unable to testify before the
jury. However, given the facts in the instant case, the precedent
relied upon by Scott to support this contention is misplaced.
In Maryland v. Craig (1990), 497 U.S. -, 110 S.Ct. 3157, 111
L.Ed.2d 666, and State v. Davis (Mont. 1992), - P.2d -, 49
St.Rep. 342, the defendants were deniedthe opportunity to confront
the witnesses against them face-to-face during their testimony. In
Craiq, the child witness, prosecutor, and defense counsel were
removed to a separate room, while the jury, judge, and defendant
remained in the courtroom. Craiq, 110 S.Ct. at 3161. Thereafter,
the child witness was examined and cross-examined while a one-way
video monitor recorded and displayed the testimony to those in the
courtroom. Craiq, 110 S.Ct. at 3161. In Davis, an opaque screen
was placed between the defendant and two child witnesses. Davis,
49 St.Rep. at 343. Again, the defendant could not personally
observe the child witnesses who testified against him. Davis, 49
St-Rep. at 345.
Pursuant to Craiq, we held in Davis that before a defendant's
right to confront the witnesses against him is limited or abridged,
the district court must make case-specific findings that the
psychological well-being of the child abuse victim outweighs a
defendant's right to face his accusers. Davis, 49 St-Rep. at 345.
However, as mentioned, both of these cases involved denial of the
right of face-to-face confrontation between the defendant and the
victim/witness. That fact is not present here. We hold the case-
specific findings of necessity required under a and adopted in
Davis are inapplicable to the case at bar. Where the State's
interest is to protect child witnesses from courtroom trauma
generally, and not the trauma associated with the presence of the
defendant, the child "could be permitted to testify in less
intimidating surroundings .... Craiq, 110 S.Ct. at 3169.
Under the statutory procedure used in this case, Scott was
entitled to be present at the videotaping of J.R.'s testimony and
confront his accuser. He chose not to do so. Furthermore, the
essential elements required by the confrontation clause--physical
presence, oath, cross-examination, and observation of demeanor by
the trier of fact (although by video recording)--are present here.
w, 110 S.Ct. at 3163; Davis, 49 St.Rep. at 345. Accordingly,
we hold the procedure utilized in this case pursuant to g g 46-15-
401 and 46-15-402, MCA (19891, did not violate Scott's
constitutional right to confrontation.
Did the filming techniques utilized by the video-camera
operator prejudice Scott by serving to emphasize the victim's
testimony and inflame the jury's passions?
On the opening day of trial, Scott objected to the
presentation of the videotaped testimony to the jury. The District
Court overruled Scott 's objection. On appeal, Scott argues the
techniques used by the camera operator created undue sympathy with
the jury. By placing undue emphasis on the nature of J.R.'s
testimony by rrzooming inrg when she cried or was otherwise
distressed, Scott argues the filming techniques prejudiced him.
Although relevant, and admissible under § 46-15-401, MCA
(1989), the videotaped testimony could have been excluded by the
District Court if its probative value was substantially outweighed
by the danger of unfair prejudice to Scott. Rule 403, M.R.Evid.
Additionally, the videotaped testimony could have been excluded if
its admission would have violated any other applicable evidentiary
rules. Whether the prejudicial effect is outweighed by probative
value is a matter within the discretion of the trial court. The
admissibility of such evidence is within the discretion of the
District Court and will not be disturbed unless there is a manifest
abuse of discretion. Zeke's Distributing v. Brown-Forman Corp.
(1989), 239 Mont. 272, 277, 779 P.2d 908, 911.
The District Court reasoned that the videotape did not inform
the jurors of something they did not already know (that J.R. was
crying). Furthermore the record reveals that the camera operator
was seated in approximately the middle of the back row of the jury
box. Our own viewing of the tape does not reveal any prejudicial
filming techniques. We hold the District Court did not abuse its
discretion in allowing the jury to watch the videotape testimony.
Regardless of our holding on this issue, Scott urges this
Court to implement uniform procedures applicable to the videotaping
of testimony for possible use at trial such as those found in State
v. Sheppard (N.J. 1984), 484 A.2d 1330, 1349-50. We decline to do
so.
IV
Did the District Court err in denying Scott's motion for a
continuance prior to videotaping the victim's testimony?
The day the videotaped testimony of J.R. was to be taken,
Scott moved for a continuance on the ground that he did not have
adequate time to prepare for cross-examination of J.R. The
District Court denied this motion. On appeal, Scott asserts the
District Court's decision to deny his motion prejudiced his defense
in two ways.
First, Scott contends a statement given by J.R. one week prior
to the time scheduled for her testimony varied from her prior
statements as to when the assault occurred. Second, Scott argues
that on the day of testimony, he was unaware that J.R. was
experiencing psychiatric symptoms in which she saw people who were
not there, and heard voices, and had discussed the symptoms with
her therapist. One week later, Scott became aware of the symptoms
through a report prepared by the therapist. Although he was
allowed to question the therapist about these symptoms, Scott
contends he was denied the opportunity to effectively cross-examine
J.R. on this subject. However, upon receiving the therapist's
report, Scott did not move to re-open the cross-examination of J.R.
Whether a continuance should be granted is not a matter of
right but, rather, is within the sound discretion of the trial
court. Section 46-13-202(3), MCA; State v. McPherson (1989), 236
Mont. 484, 487, 771 P.2d 120, 122. We will not overturn a district
court's decision to deny a motion for a continuance unless the
district court abused its discretion. McPherson, 771 P.2d at 122.
An abuse of discretion is present only when the district court's
ruling prejudices the defendant. State v. Kirkland (1979), 184
Mont. 229, 235, 602 P.2d 586, 590.
In this case, Scott has failed to demonstrate that he was
prejudiced. As to his inability to cross-examine J.R. about her
psychiatric symptoms, Scott advances no argument, nor points to
anything in the record, which demonstrates how his lack of
awareness of the therapist's report at the time of videotaping
prejudiced him. Likewise, Scott does not elaborate how J.R.'s
change in story as to when the assault occurred prejudiced him. To
the contrary, the record reveals that Scott was able to effectively
cross-examine J.R. on this subject. Upon cross-examination, J.R.
reiterated that the assault occurred on a "school day" rather than
in the summer months as she had told the defense one week before.
Any variance in J.R. 's story would go to her credibility.
Evaluation of the credibility of a witness is strictly within the
province of the jury. State v. Walters (1991), 247 Mont. 84, 90,
806 P.2d 497, 500.
For this Court to overturn the District Court's denial of a
motion for continuance, an abuse of discretion which prejudices the
defendant must be demonstrated. McPherson, 771 P.2d at 122. Scott
has demonstrated no such prejudice in this appeal. The District
Court did not err in denying Scott's motion for a continuance.
Was certain testimony of J.R.'s therapist, regarding J.R.'s
psychiatric symptoms, improperly allowed by the District Court?
Scott claims the District Court improperly allowed J.R.'s
therapist to bolster her testimony. He contends that by allowing
the therapist to testify that it is not unusual for victims of
sexual abuse to hear voices or see things that are not reality, the
District Court allowed the therapist to vouch for the credibility
of J.R. Thus, the fact-finding province of the jury was invaded
because the testimony served to tell the jury that J.R. had in fact
been assaulted by Scott, and he was the cause of her psychiatric
symptoms. We disagree.
Scott relies upon State v. Harris (1991), 247 Mont. 405, 808
P.2d 453, to support his proposition that an expert witness cannot
comment on the credibility of an alleged victim. Harris, 808 P.2d
at 455. However, Scott fails to note that we have allowed expert
testimony regarding the sometimes puzzling and contradictory
behavior of children who have been sexually assaulted. Harris, 808
P.2d at 456. Furthermore, Montana allows "expert witnesses to
testify directly about the credibility of a victim who testifies in
a child sexual abuse trial" under certain circumstancs. State v.
Scheffelman (1991), 250 Mont. 334, 342, 820 P.2d 1293, 1298. Such
testimony is proper when the child victim testifies, the
credibility of the child is attacked, and the expert is properly
qualified. Scheffelman, 820 P.2d at 1298. In this case, the first
two Scheffelman factors were satisfied. Additionally, Scott did not
object to the qualifications of the therapist as an expert, nor
does he argue on appeal the District Court erred in treating her as
an expert.
Expert testimony relating to the contradictory behavior, and,
where appropriate, the credibility of a child victim of sexual
abuse, will be allowed to enlighten the jury on a subject with
which most people have no common experience and to assist the
jurors in assessing the credibility of the victim. State v.
Donnelly (1990), 244 Mont. 371, 378, 798 P.2d 89, 93. Where the
expert testimony does not impinge upon the jury's obligation to
ultimately decide the credibility of the victim, such testimony is
proper if offered "for the purpose of helping the jury to assess
the credibility of a child sexual assault victim." Donnellv, 798
P.2d at 93, citing State v. Geyman (1986), 224 Mont. 194, 200, 729
P.2d 475, 479.
Throughout the trial Scott attempted to portray J.R. as a
child who made up the sexual assault because she was capable of
seeing people who were not there and hearing voices which were not
16
real. However, it was Scott who called the therapist during his
case-in-chief and opened the door to testimony about these
psychiatric symptoms.
In his attempt to impugn J.R., Scott elicited testimony
regarding J.R.'s psychiatric symptoms and attempted to relate these
psychiatric symptoms as being caused by two other men and possibly
by a deceased brother. Scott's theme was clear, to raise a
reasonable doubt in the minds of the jurors as to whether J.R.'s
allegations against Scott were true because the child's psychiatric
symptoms could be related to others.
Upon cross-examination, the State merely had the therapist
explain that it was not uncommon for child sexual assault victims
to suffer psychiatric symptoms which include seeing people and
hearing voices which are not real. Furthermore, in the therapist's
opinion, these symptoms were related to Scott, and not to those
upon whom the defense was attempting to lay blame. Contrary to
Scott's contention, the testimony of the therapist was not a
comment on his guilt.
Given the testimony of the therapist elicited by the defense
on direct examination, the jury was entitled to be enlightened as
to the root of these psychiatric symptoms on cross-examination.
"The right of cross-examination extends not only to all facts
stated by the witness in [her] original examination, but to all
other facts connected with them, directly or indirectly . .. . II
Miles Savings Bank v. Liquin & Swandal (1931), 90 Mont. 513, 521,
4 P.2d 482, 485. The latitude allowed in cross-examination is
determined by the district court. State v. Hart (1981), 191 Mont.
375, 383, 625 P.2d 21, 26. We will not disturb the ruling of the
district court absent a clear abuse of discretion. Hart, 625 P.2d
at 26.
We hold the testimony of the therapist elicited by the State
on cross-examination did not encroach upon the province of the jury
to decide for themselves the credibility of J.R. The District
Court did not abuse its discretion in allowing the cross-
examination.
VI
Did the District Court err by instructing the jury that the
State was not required to state the time and place of the alleged
criminal offense with impossible precision?
In his final assignment of error, Scott contends Jury
Instruction No. 13 effectively allowed the State to expand the time
frame alleged in the information upon which he relied in preparing
his defense. Instruction No. 13 reads:
You are instructed that the law does not require that the
time and place of an alleged criminal act be stated with
impossible precision, it merely requires that they be
stated as definitely as possible.
The District Court found that this instruction did not in any way
contradict the allegation contained in the information, which read,
in part:
[O]n or about late September or early October, 1989, at
the County of Broadwater, State of Montana, the above-
named Defendant committed the offense of Sexual Assault,
a Felony, . . . .
Scott argues that the State knew three weeks before trial that
J.R. had changed her story and was alleging the assault occurred in
the summer of 1989 rather than the fall. Therefore, Scott claims,
the State was allowed to amend the information in the eleventh hour
to charge the offense was committed at a different time. This
argument is without merit.
At trial, the evidence presented by the State as to when the
assault occurred was consistent with the information. From the
record, it is clear that the State in no way attempted to pursue
any theory which would have placed the assault outside the time
frame contained in the information. To the contrary, it was Scott
who presented evidence at trial in an attempt to persuade the jury
that the assault could not have occurred during this time frame.
It is within the district court's prerogative to determine
which jury instructions are necessary. Hembd, 838 P.2d at 415.
"On review, we determine whether [the] instructions, as a whole,
fully and fairly present the applicable law of the case." Hembd,
838 P.2d at 415. We hold the District Court did not err in giving
this instruction and, as a whole, the jury instructions fully and
fairly presented the applicable law of the case.
We determine this case presents no reversible error. The
conviction is affirmed.
~ / . f l z z ~
C
Chief Justice
We concur:
Justices