No. 88-155
IN THE STJPREMF: COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Appellant,
-VS-
STEPHEN GIJY SMITH, SR. ,
Defendant and Respondent.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C.R. McNeil, Judqe presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Mike Greely, Attorney General, Helena, Montana
Patricia J. Schaeffer, Asst. Atty. General, Helena
Larry Nistler, County Attorney, Polson, Montana
Mark Stermitz, Deputy County Attorney, Polson
For Respondent :
b-
Reniamin R. Anci aux, Pol.son, Montana
Submitted on Briefs: Oct. 13, 1988
Decided: December 8, 1988
U
L L J
Filed: a
Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
This appeal from the Twentieth Judicial District, in and
for the County of Lake, involves a prosecution for incest..
The District Court granted the defendant Smith's motion for a
face to face interview with the State's principal witness and
daughter of the accused, A.S. The State had agreed to allow
an interview between Smith's attorney and A.S., but insisted
that Smith not attend. The District Court granted the motion
to interview subject to the condition that the interview
occur in the court room and that Smith refrain from actions
designed to intimidate A.S.
The State refused to comply with the order. The
District Court sanctioned the noncompliance by excluding
A.S.'s testimony. The issue on appeal is whether Smith's
attendance at the interview is necessary for the exercise of
defendant's meaningful right to discovery. We reverse.
At the time the State filed the incest charges, A.S. was
fifteen. In the lower court, the State argued that Smith's
presence at the interview would harm A.S. 's mental well
being, and pointed out that the criminal proceedings against
Smith had already been delayed because A.S. had run away from
home.
Smith responded that his attorney could not conduct an
effective interview of the witness unless his counsel could
consult with Smith during the questioning. The charges Smith
must defend against are as follows:
COUNT I
That on or about July 27, 1987, in Polson,
Lake County, Montana, the Defendant, STEPHEN GUY
SMITH, SR., knowingly had sexual intercourse with a
descendant, A.S., his natural daughter.
COUNT I1 - VII
That on or about July 21, 1987 through July
26, 1987, inclusive, on a daily basis, in Polson,
Lake County, Montana, the Defendant, STEPHEN GUY
SMITH, SR., knowingly had sexual intercourse with a
descendant, A.S., his natural daughter.
The State has also served Smith with a Notice of Intent
to Rely on Other Crimes, Wrongs and Acts of Defendant. The
Notice states that the State intends to introduce evidence
demonstrating: a history of sexual contact between Smith and
A.S. beginning when A.S. was eight and continuing through
July 1987; incidents of sexual intercourse between Smith and
A.S. from 1985 through July 1987; and specific incidents of
sexual misconduct by Smith from 1985 to 1987. Smith argues
that the numerous times and places involved in the events
A.S. will testify to necessitate his attendance at the
interview to provide information to his counsel.
The State responds that nothing in the rights guaranteed
by Montana law and the United States Constitution mandate
Smith's attendance at the interview. See State v. Smith
(1983), 206 Mont. 99, 670 P.2d 96. Smith holds that the
accused "does not have the constitutional right to interview
witnesses personally." Smith, 670 P.2d at 101. This view
accords with the United States Supreme Court's conclusion
that :
The confrontation clause guarantees only "an
opportunity for effective cross-examination, not
cross-examination that is effective in whatever
way, and to whatever extent, the defense might
wish. "
Kentucky v. Stincer (1987), - U.S. -' -, 107 S.Ct.
? 6 5 8 , 2664, 96 L.Ed.2d 631, 643, but see Coy v. Iowa (19881,
-- ,
TJ.S. - 1 0 8 S.Ct. ?798, 1 0 1 T,.Ecl.'d 8 S 7 (Towa statute
allowing victim-witness to testify at trial behind one way
screen declared unconstitutional in violation of the
confrontation clause). The State also points out that under
Stincer the accused's right to he present at critical stages
in the prosecution must be balanced against the risk of
"substantial injurv to the specific child witness." Stincer,
107 S.Ct. at 2668 n. 20. The record supports the State's
contention that a face to face pretrial interview with Smith
could harm A.S. Thus, we agree with the State that
reasonable restrictions on Smith's access to A.S. comports
with the guarantees of the Confrontation Clause.
However, this case is not settled by the lack of
constitutional guarantees. Smith contends that the District
Court correctly construed the following statute in ordering
his presence at the interview:
(5) Upon motion of the defendant showing that
he has substantial need in the preparation of his
case for additional material or information not
otherwise provided for and that he is unable
wi-thout undue hardship to obtain the substantial
equivalent by other means, the court in its
discretion may order any person to make it
available to him. The court may, upon the request
of any person affected by the order, vacate or
modify the order if compliance would be
unreasonable or oppressive.
Section 46-1-5-3?:!(5), MCA. According to Smith, he has a
substantial need in the preparation of his case to be present
at the interview, and unless he is present, he is unable to
obtain the substantial equivalent of such an interview
without undue hardship. Therefore, according to Smith, the
District Court correctly granted the interview.
We find that Smith has not made a sufficient showing for
his request in view of the possible psychological and
emotional injury to A.S. As stated by the New Mexico Supreme
Court in a similar situation:
We are aware of the sensitive nature of this case,
and of the problems that might arise in light of
the ages of the witnesses, and their past
relationship to defendant, and the nature of the
alleged crimes. None of these facts, however,
justify an outright prohibition against all contact
with the witnesses. The trial court could fashion
some means to ensure that the witnesses will be
protected from intimidation without unduly
impairing defendant's right to prepare a defense.
State v. Orona (N.M. 1979), 5 8 9 P.2d 1041, 1044. The Court
in Orona also explained:
We do not hold that the defendant has an absolute
and unlimited right of access to the State's
prospective witnesses. This is not a case in which
there are compelling justifications for totally
limiting defendant's access to the witnesses
against him. Although there may have been good
reason to limit access - - defendant himself,
by the
there does not appear to have been any
justification for the court's absolute prohibition
against any contact by defense counsel.
Orona, 5 8 9 P.2d at 1043 (emphasis added).
- -
The District Court could fashion an interview which
would allow Smith to remain outside the immediate presence o f
A.S., and at the same time assist his attorney. For example,
the interview between Smith's attorney and A.S. could be
recorded. Smith could then listen to the recording, note and
instruct his attorney on areas that should be further
developed, and request a second interview between A.S. and
the attorney. Similarly, a simultaneous telephone conference
allowing Smith to hear the interview and communicate
pri~rate1v with his attorney could afford an opportunity for
Smith to consult with his attorney while counsel questioned
the witness. Undoubtedly, there are other like options.
Section 46-15-323 (5), MCA, speaks generally to the need
for judicial involvement where the criminally accused's right
to discover the prosecution's case is obstructed. Other
particular rules exist. For example, a witness belongs to
neither party, and neither party should obstruct the other
party's access to witnesses. State v. Pecora (Mont. 1980) ,
619 P.2d 173, 176, 37 St.Rep. 1742, 1746. A witness
unwilling to he interviewed may be deposed, but an "interview
under circumstances directed by the witness would reflect
unwillingness only if the attached conditions make it
untenable for defense counsel to di-scover need-ed material."
Pecora, 619 P.2d at 176. Moreover,
reasonable restraints may he imposed by a court to
assure the personal safety of a witness in legal
custody and to prevent unnecessary annoyance or
embarrassment to a witness and undue demands and
hardship upon the persons in whose custody the
witness remains. (14 A.L.R.3d 652 anno.; ARA
Standards for Criminal Justice, Discovery S 2 . 5 ,
54.1; Id. The Defense Function S4.3[d].)
State v. Gress (Ka. 1972), 504 P.2d 256, 261, see also
Holladay v. State (Tex. Ct. App. 1936), 95 S.W.2d 119.
These rules for protection of witnesses must play a
large part in the exercise of discretion in granting
interviews of child witnesses. We hold that ordering a face
to face interview under the facts of this case constitutes an
abuse of discretion.
We also take this opportunity to point out that the
wishes of A.S. and her guardian should be considered by the
lower court. Pecora stands for the proposition that
witnesses are entitled t o have a voice in the conditions of
interviews and depositions.
We remand for consideration of a means for Smith and his
counsel to interview A.S. without it being necessary for A.S.
t o face the defendant during the interview.
/'
ddh'
Justice
We Concur: A
Chief Justlce