State v. Campbell

No. 13896
IN THE SUPREME COURT OF THE STATE OF MONTANA

1978

THE STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
MERRILL CAMPBELL,
Defendant and Appellant.

Appeal from: District Court of the Second Judicial District,
Honorable James D. Freebourn, Judge presiding.
Counsel of Record:
For Appellant:
J. Brian Tierney, Butte, Montana -.,, --
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Mike McGrath argued, Assistant Attorney General, Helena,
Montana
John G. Winston, County Attorney, Butte, Montana

Submitted: A ~ r i l28. 1978
Decided :
jbn - %, 1978
M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court:

Defendant appeals from t h e judgment of conviction

e n t e r e d by t h e D i s t r i c t Court, S i l v e r B w County, a f t e r a
o

jury found him g u i l t y of aggravated a s s a u l t .

On November 16, 1976, Tom McKenzie, a welfare worker

with t h e Department of S o c i a l and R e h a b i l i t a t i o n Services

of t h e S t a t e of Montana, went t o t h e Head S t a r t Program i n

Butte t o follow up a r e p o r t of c h i l d abuse. McKenzie spoke

with Pat S u l l i v a n , Head S t a r t D i r e c t o r , and observed Gina Houser,

a four year o l d g i r l who had been beaten. That same day, November

16, 1976, McKenzie took Gina Houser t o D r . Dennis McCarthy, who

examined t h e c h i l d and concluded t h a t h e r i n j u r i e s had been

i n f l i c t e d by another.

The c h i l d ' s n a t u r a l mother, Cheryl Houser Campbell,

contacted t h e Head S t a r t School a t 2:00 p.m. on November 16,

1976, t o a s c e r t a i n why Gina had n o t returned on t h e school bus.

The school advised t h e mother the welfare department had taken

custody of Gina and t h r e e o t h e r c h i l d r e n of Cheryl Houser Campbell.

The mother t o l d t h e welfare department t h a t Gina had f a l l e n from

her tricycle. The welfare department, however, advised Cheryl

Houser Campbell t h a t ~ i n a ' s r u i s e s were n o t caused by a f a l l ,
b

and d i r e c t e d t h e mother t o the S i l v e r Bow County a t t o r n e y .

A t 3:00 p.m., November 16, 1976, Cheryl Houser Campbell

went t o t h e county a t t o r n e y and s t a t e d t h a t Gene Houser, h e r ex-

husband, had beaten Gina. L a t e r t h a t evening four of Cheryl

Houser campbell's daughters, Gina and Rhonda Houser, and J a n e t

and Kathy Campbell, were placed i n f o s t e r c a r e by Tom McKenzie.
 On t h e evening of t h e placement of t h e c h i l d r e n i n f o s t e r

c a r e , Tom McKenzie spoke by long d i s t a n c e telephone with Gene

Houser. McKenzie v e r i f i e d t h a t Gene Houser was i n Los Angeles,

C a l i f o r n i a , on t h e day of t h e beating and thus could n o t have

beaten t h e g i r l s .

The next day, November 1 7 , 1976, Cheryl Houser Campbell

was charged i n j u s t i c e c o u r t with giving f a l s e information t o a

p o l i c e o f f i c e r and endangering t h e welfare of h e r c h i l d r e n

by h e r f a i l u r e t o seek medical a i d f o r them. The mother was

placed i n j a i l . She then t o l d a u t h o r i t i e s t h a t defendant, M e r r i l l

Campbell, had spanked t h e c h i l d r e n on November 15, 1976, with a bed

slat. The charges a g a i n s t t h e mother were l a t e r dropped and

on December 6 , 1976, t h e S t a t e f i l e d an Information charging

defendant with t h e aggravated a s s a u l t of K r i s t a Flanigan, Cheryl

Houser Campbell's f i f t h daughter, and Gina Houser on November 15,

1976.

The four minor c h i l d r e n , including Gina, were immediately

placed by t h e welfare department i n t h e custody of Cheryl Houser

Campbell. K r i s t a Flanigan, age s i x , was placed i n a Deer Lodge

Montana, f o s t e r home and t a l k e d t o h e r mother by telephone only

once during t h e s i x months p r i o r t o defendant's t r i a l . Krista

i d e n t i f i e d defendant a s t h e person who had beaten t h e g i r l s with

a wooden plunger handle, During t h e i n v e s t i g a t i o n K r i s t a picked

t h e handle from among t h r e e s t i c k s t h e deputy county a t t o r n e y

showed h e r .

A t h i s arraignment, defendant moved t h e c o u r t t o o r d e r t h a t

defendant be allowed t o submit t o a polygraph t e s t , N arrange-
o

ments were made f o r a polygraph t e s t , however.
 Defendant's t r i a l commenced on April 20, 1977. During

t h e s t a t e ' s case, a wooden plunger handle was admitted a s an

e x h i b i t , over defendant's objection. Also over defendant's

objection, the court allowed two Head S t a r t workers and a police

o f f i c e r t o t e s t i f y t o statements made by four year old Gina Houser.

A t the close of the s t a t e ' s case, defendant moved t h e

court t o dismiss t h e Information o r i n t h e a l t e r n a t i v e , t o

d i r e c t a v e r d i c t f o r defendant on the grounds t h a t the s t a t e ' s

evidence was i n s u f f i c i e n t a s a matter of law and upon the grounds

t h a t c e r t a i n witnesses' testimony was p r e j u d i c i a l t o defendant.

The motion was denied, the jury returned a v e r d i c t of g u i l t y and

t h e d i s t r i c t judge sentenced defendant t o f i v e years i n t h e s t a t e

prison.

Defendant r a i s e s seven i s s u e s i n h i s appeal from t h e

D i s t r i c t Court judgment:

1. Did the court e r r i n f a i l i n g t o order a polygraph

t e s t a f t e r defendant had requested one?

2. Is the evidence s u f f i c i e n t t o support the v e r d i c t ?

3. Did the court e r r i n admitting the wooden plunger

handle i n t o evidence?

4. Did the court e r r i n allowing t h r e e witnesses t o t e s t i f y

t o statements made by four year old Gina Houser?

5. Did the court e r r i n l i m i t i n g the testimony of a defense

witness?

6. Did the s t a t e c r e a t e r e v e r s i b l e e r r o r when i t asked

a r e b u t t a l witness f o r defendant's general reputation i n the

community?

7. Did the s t a t e improperly introduce evidence of other

crimes committed by defendant?
 The d i s t r i c t judge committed r e v e r s i b l e e r r o r when he

allowed t h e two Head S t a r t teachers and the police o f f i c e r t o

t e s t i f y , over defendant's objection, t o statements made by four

year old Gina Houser t o t h e teachers. The alleged statement

of Gina t h a t defendant had beaten her and her s i s t e r with a

wooden plunger handle went t o the very f a c t s which the s t a t e

was t r y i n g t o prove, was a statement offered t o prove t h e t r u t h

of the matter a s s e r t e d and was therefore hearsay. The S t a t e

concedes t h a t the statement was n o t admissible within the r e s

gestae r u l e because the statement, made a t l e a s t 24 hours a f t e r

the beating, " * * * was not made contemporaneously with the a c t

complained of nor does i t appear t o have been made i n a s t a t e

of excitement o r shock. * * * Narratives of a p a s t t r a n s a c t i o n

do n o t come within the r e s gestae rule." S t a t e v. Shambo, (1958),

133 Mont. 305, 309, 310, 322 P.2d 657.

It i s possible t h a t Gina Houser, although only four years

old a t the time of t r i a l , was competent t o t e s t i f y . Section

93-701-3(2), R.C.M. 1947, the s t a t u t e i n e f f e c t a t the time of

defendant's April 20, 1977, t r i a l , excluded from the general r u l e

t h a t a l l persons a r e q u a l i f i e d t o t e s t i f y :

"Children under t e n years of age who appear incapable
of receiving j u s t impressions of t h e f a c t s respecting
which they a r e examined, o r of r e l a t i n g them truly."

A four year old witness i s not necessarily too young t o perceive

c o r r e c t impressions of t h e f a c t s he observed, t o remember those

impressions, t o communicate what he saw, and t o understand h i s

duty t o t e l l the t r u t h . Other courts have held t h a t children four

years old o r younger were competent t o t e s t i f y . Love v. S t a t e ,

(1974), 64 Wisc.2d 432, 219 N.W.2d 294, 298; Fields v. S t a t e ,

(Tex.Crim.App. 1973), 500 S.W.2d 500, 502; H i l l v. Skinner, (1947),

81Ohio App. 375, 79 N.E.2d 787, 789. The question of whether
t h e c h i l d i s competent t o t e s t i f y i s a matter addressed t o

the sound d i s c r e t i o n of the t r i a l judge. S t a t e v. Shambo, supra.

I n t h i s case, if Gina Houser had been q u a l i f i e d a s a

witness, had t e s t i f i e d t h a t defendant had beaten her and her

s i s t e r , and then had her c r e d i b i l i t y impeached by defense

suggestions t h a t since t h e beating she had been improperly

influenced, the s t a t e might well r e h a b i l i t a t e her by introducing

the alleged statements t o the Head S t a r t workers a s p r i o r con-

s i s t e n t statements. Allen v. Moore, (1975), 167 Mont. 330,

338, 538 P.2d 1352. Gina, however, was not a witness, nor was

she even present a t the t r i a l . The testimony concerning Gina's

statements was not offered t o corroborate the testimony of

Gina, who was never a witness, but was introduced by t h e s t a t e

t o corroborate the testimony of s i x year old Krista Flanigan.

The testimony a s t o Gina's statements corroborated and

strengthened Krista Flanigan's testimony and was so damaging

t o defendant's case t h a t we a r e not convinced of the s t a t e ' s

contention t h a t the admission of t h e testimony was harmless.

Upon remand, the D i s t r i c t Judge s h a l l examine the c h i l d ' s

competency t o t e s t i f y a s i t r e l a t e s t o the time of the new t r i a l ,

and not t o the time when the crime occurred nor t o the time of

the previous t r i a l . S t a t e v. Gamer, (1977), 116 Ariz. 443,

569 P.2d 1341, 1344. The c h i l d may t e s t i f y i f the judge c o r r e c t l y

determines her t o be competent. I f the judge r u l e s t h a t Gina i s

n o t competent t o t e s t i f y , testimony concerning statements she

made t o o t h e r s implicating defendant i n the crime a r e a l s o in-

admissible. Coleman v. Higgins, (1960), 137 Mont. 222, 226, 351

P.2d 901.
 Although this cause is reversed and remanded on the basis
of this issue alone, we shall discuss two other issues raised by

defendant for the purposes of retrial. The District Court did

not err in failing to order that defendant be given a polygraph

test. Defendant urges that Montana should adopt the rule set
forth in State v. Stanislawski, (1974), 62 Wis- 2d 730, 216 N.W.
2d 8, wherein the Wisconsin Supreme Court set forth criteria for

admissibility of polygraph evidence.
The Montana rule is that the results of polygraph examina-

tions are not admissible as evidence in a criminal trial. State

v. Hollywood, (1960), 138 Mont. 561, 358 P.2d 437; State v. Cor,

(1964), 144 Mont. 323, 396 P.2d 86. We save the issue of whether

this Court shall adopt a Stanislawski or similar test for

admissibility of polygraph testimony for a case in which the
admission or exclusion of polygraph evidence determines the

outcome of the case. We do note, however, that defendant could
not satisfy the Stanislawski test. The Stanislawski case merely

establishes that the use of the polygraph is clearly within

prosecutorial discretion; that the test requires a prior written
stipulation by all parties, including the prosecution, and that,
notwithstanding the stipulation, admissibility of the test results
is subject to the sound discretion of the trial court. Because

neither the prosecution nor the district court concurred in the
admission of polygraph evidence, the Stanislawski test was not met.
Nor did the court err in admitting the wooden plunger

handle into evidence. Physical evidence may be introduced and

received into evidence after proof is made connecting it with

the accused or the crime. State v. Best, (1972), 161Mont. 20,

25, 503 P.2d 997. Krista Flanigan testified that she and her
sister were beaten by defendant and that the plunger handle was
t h e weapon defendant used i n the beating. Officer M i l l e r

t e s t i f i e d t h a t he had found the plunger handle under the

c h i l d r e n ' s bed, had placed h i s i n i t i a l on t h e handle and had

stored t h e handle i n the county a t t o r n e y ' s o f f i c e . The o f f i c e r

t e s t i f i e d t h e handle was i n the same condition a t t r i a l , a s i t

was on the day he received i t . Defendant a s s e r t s t h a t , because

Cheryl Houser Campbell emphatically a s s e r t e d t h a t a bed s l a t

and n o t a plunger handle was t h e weapon used i n the beating,

the plunger handle should not have been admitted i n t o evidence.

Because the s t a t e presented s u f f i c i e n t evidence connecting the

weapon with the crime and e s t a b l i s h i n g t h e chain of custody,

the contrary testimony of Cheryl Houser Campbell went only t o

weight and n o t t o a d m i s s i b i l i t y .

The judgment of the D i s t r i c t Court i s reversed and t h i s

cause i s remanded f o r a new t r i a l .

Austice

W Concur:
e

- ,

Chief J u s t i c e