State v. Martinez

414 Mont. 340

2023 MT 251

STATE OF MONTANA, Plaintiff and Appellee,

v.JOSE MARTINEZ, JR., Defendant and Appellant.

No. DA 21-0587.

Submitted on Briefs October 25, 2023.

Decided December 27, 2023.

2023 MT 251.

414 Mont. 340.

__P.3d__.

1. Criminal Law & Procedure – Standards of Review – Abuse of Discretion – Evidence – Admissibility – Procedural Matters – Rulings on Evidence

The appellate court reviews a district court’s conclusions of law and interpretations of the constitution de novo. The appellate court’s review of constitutional questions is plenary and it therefore reviews de novo a district court’s interpretation of the Sixth Amendment to the United States Constitution and Mont. Const. art. II, § 24. Whether evidence is relevant and admissible is left to the sound discretion of the district court and will not be overturned on appeal absent an abuse of discretion. A determination that Mont. R. Evid. 803(4) allows certain hearsay testimony to be admitted is an evidentiary issue reviewed for abuse of discretion.

2. Constitutional Law – Fundamental Rights – Criminal Process – Right to Confrontation – Criminal Law & Procedure – Standards of Review – Harmless & Invited Error – Constitutional Rights – Trials – Defendant’s Rights – Right to Confrontation – Evidence – Appeals – Reversible Error

A constitutional deprivation of the defendant’s confrontation right is a trial error and is subject to harmless error review. The court considers the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, and the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points.

3. Constitutional Law – Fundamental Rights – Criminal Process – Right to Confrontation – Criminal Law & Procedure – Defendant’s Rights – Right to Remain Silent – Communicative & Testimonial Information – Trials – Bill of Rights – State Application

The Sixth Amendment’s Confrontation Clause, applicable to state prosecutions via the Fourteenth Amendment, guarantees a criminal defendant’s right to be confronted with the witnesses against him. Montana’s Constitution likewise ensures the right of an accused to meet the witnesses against him face to face. Mont. Const. art. II, § 24. Testimonial hearsay statements of witnesses absent from trial are inadmissible under the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. The primary purpose test differentiates between when a statement is testimonial in nature and when it is nontestimonial. Statements are nontestimonial if they are made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Conversely, statements are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. When determining a statement’s primary purpose the question is whether, in light of all the circumstances, viewed objectively, the primary purpose of the conversation was to create an out-of-court substitute for trial testimony.

4. Constitutional Law – Fundamental Rights – Criminal Process – Right to Confrontation

When considering whether statements made outside of court are testimonial, all circumstances must be considered with no specific circumstance controlling.

5. Criminal Law & Procedure – Trials - Witnesses – Unavailability

The forfeiture doctrine requires that a judge determine that a wrongful act by the defendant made the witness unavailable to testify at trial. The doctrine or rule applies only when the defendant engaged in conduct designed to prevent the witness from testifying.

6. Constitutional Law – Fundamental Rights – Criminal Process – Right to Confrontation – Criminal Law & Procedure – Trials – Defendant’s Rights

The right protected by the Confrontation Clause is the right to have the witness present and testify; it is not a right that guarantees the witness will give particular testimony.

7. Criminal Law & Procedure – Trials – Witnesses – Unavailability

Before the forfeiture doctrine may be invoked, a judge must determine that there was (1) wrongful conduct, (2) intended to cause the witness’s unavailability, and (3) actually causing the witness’s unavailability.

8. Criminal Law & Procedure – Trials – Witnesses – Unavailability

The intent required for the forfeiture doctrine is a specific one; the exception only applies when the actor has in mind the particular purpose of making the witness unavailable by his conduct. Thus, before the forfeiture by wrongdoing doctrine can be invoked, it must be raised and considered by the trial court, who then makes a determination and establishes a record based on all of the circumstances of the case.

9. Constitutional Law – Fundamental Rights – Criminal Process – Right to Confrontation – Criminal Law & Procedure – Trials – Defendant’s Rights

A conviction for tampering does not automatically forfeit a defendant’s confrontation rights under the forfeiture for wrongful conduct doctrine. The propriety of applying the forfeiture doctrine must first be raised by the State, who is familiar with the underlying facts of the case, and then considered by the trial judge. The trial judge must make findings and conclusions for each element of the doctrine: (1) wrongful conduct, (2) intended to cause the witness’s unavailability, and (3) actually causing the witness’s unavailability.

10. Criminal Law & Procedure – Standards of Review – Harmless & Invited Error – Evidence – Harmless Error

A harmless error analysis requires the appellate court to consider the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, and the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points. The cumulative evidence test requires that the appellate court look not to the quantitative effect of other admissible evidence, but rather to whether the fact-finder was presented with admissible evidence that proved the same facts as the tainted evidence proved. The cumulative evidence must demonstrate that there was no reasonable possibility the evidence admitted in error might have contributed to the conviction.

Appeal from the District Court of Yellowstone County. Thirteenth Judicial District Court, Cause No. DC-19-674. Honorable Gregory R. Todd, Judge.

A stepdaughter’s statements to a physician were nontestimonial and properly admitted under Mont. R. Evid. 803(4) as they were made for the purposes of medical treatment; the stepdaughter’s statements to a nurse were testimonial and it was error to admit the statements absent an opportunity for defendant to cross-examine the stepdaughter. However, the error was harmless as there was amply cumulative evidence admitted that proved the same facts as the tainted evidence. The quality of the tainted evidence was such that there was no reasonable possibility it might have contributed to the conviction.

Affirmed.

CHIEF JUSTICE McGRATH specially concurred.

For Appellant: Chad Wright, Appellate Defender, James Reavis, Assistant Appellate Defender, Helena.

For Appellee: Austin Knudsen, Montana Attorney General, Michael P. Dougherty, Assistant Attorney General, Helena; Scott Twito, Yellowstone County Attorney, Sarah L. Hyde, Jacob Yerger, Deputy County Attorneys, Billings.

JUSTICE McKINNON delivered the Opinion of the Court.

¶1 A jury convicted Jose Martinez Jr. (Martinez) in the Thirteenth Judicial District Court, Yellowstone County, of two counts of incest, criminal distribution of dangerous drugs, solicitation to commit tampering with witnesses or informants, and three counts of criminal contempt. Martinez appeals.

¶2 We restate the issue as follows:

Were statements made by S.M. to a Sexual Assault Nurse Examiner (SANE) and a physician testimonial evidence admitted in violation of Martinez’s right of confrontation?

¶3 We conclude that S.M.’s statements to a physician which were admitted at trial when S.M. was not present to testify were nontestimonial and made for purposes of medical treatment. Accordingly, S.M.’s statements to a medical provider were admissible pursuant to M. R. Evid. 803(4). We further conclude that S.M.’s statements to the SANE were testimonial and their admission thus violated Martinez’s right of confrontation when he had no opportunity for cross-examination. The error, however, was harmless given other evidence produced at trial and because the SANE’s testimony was cumulative.

¶4 Martinez’s conviction is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

¶5 The charges in this case arose following a report from Martinez’s stepdaughter, S.M., that Martinez had been sexually abusing her since she was 10. Prior to the report, Martinez was living in a Billings motel with S.M. and her mother, T.M., to whom Martinez was married. S.M., who was 16 years old at the time of her report, had stopped attending school in 2018. Instead, she remained home alone with Martinez while T.M. was at work. On September 27, 2018, S.M. was speaking with a friend who overheard Martinez “say nasty stuff” to S.M. like “horny” and “are you ready.” Concerned for S.M.’s safety, the friend urged S.M. to tell someone. S.M. then told her sister that Martinez had been sexually assaulting her. Her sister contacted T.M. who confronted Martinez. Martinez denied the accusation and T.M. took S.M. and left the motel.

¶6 T.M. called 911 and reported that she had “just found out some really sad news” concerning Martinez and her daughter. T.M. said that her 16-year-old daughter told her that her stepdad had been molesting her. Law enforcement dispatched Officer Holly Newsome to speak with T.M. Officer Newsome inquired whether S.M. needed medical...