State v. Strommen

547 P.3d 1227

STATE of Montana, Plaintiff and Appellee,

v.Luke STROMMEN, Defendant and Appellant.

DA 21-0086

Supreme Court of Montana.

Submitted on Briefs: February 8, 2023

Decided: April 30, 2024

APPEAL FROM: District Court of the Seventeenth Judicial District, In and For the County of Valley, Cause No. DC 2018-32, Honorable John W. Larson, Presiding Judge

For Appellant: Jason T. Holden, Katie R. Ranta, Faure Holden Attorneys at Law, P.C., Great Falls, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Michael P. Dougherty, Assistant Attorney General, Helena, Montana, Dylan Jensen, Valley County Attorney, Dan Guzynski, Special Deputy County Attorney, Glasgow, Montana

Justice Dirk Sandefur delivered the Opinion of the Court.

¶1 Luke Strommen appeals his January 2021 judgment of conviction in the Montana Seventeenth Judicial District Court, Valley County, on the offense of Sexual Intercourse Without Consent (SIWC). We address the following dispositive issue:

Whether the District Court erroneously allowed the State to present adverse expert testimony remotely via two-way video conferencing at trial?

Reversed and remanded for new trial.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 In October 2018, the State formally charged Strommen with Sexual Abuse of Children (child pornography) based on alleged possession of digital images of then 17-year-old S.B. engaged in sexual activity. Strommen and S.B. were previously engaged in a year-long sexual relationship after meeting in 2014 while he was employed as a Valley County Deputy Sheriff. He pled not guilty and trial was set for May 2019.

¶3 In December 2018, the State filed an Amended Information charging Strommen with SIWC after then 23-year-old J.R. reported in November 2018 that she and Strommen were engaged in an ongoing sexual relationship in 2009-11. J.R. alleged that the sexual relationship began when she was babysitting Strommen’s children at age 14. The relationship continued until J.R. moved away at age 16. Strommen pled not guilty under the Amended Information and trial was set on both charges for July 2019. Trial was later reset for October 2019 on Strommen’s speedy trial waiver and unopposed motion for a continuance. The charges were subsequently severed for separate trials with the child pornography charge maintained for trial in October 2019, and the SIWC charge set for trial in March 2020.

¶4 In September 2019, in advance of the scheduled child pornography trial, the State filed a Second Amended Information adding a third charge, Attempted Sexual Abuse of Children, an additional or alternative child pornography charge. Strommen pled not guilty, and the new charge was set for trial with the original child pornography charge in October 2019. In advance of trial, however, Strommen pled guilty to the original charge under a written plea agreement in return for dismissal of the attempted child pornography charge, and a particular State sentencing recommendation on the original charge. In February 2020, the District Court sentenced Strommen in accordance with the parties’ agreed sentencing recommendation.

¶5 In advance of the SIWC trial set for March 2020, the State filed a "contingent motion" on February 21, 2020, seeking leave to present the retained expert testimony of a sexual assault behavioral psychologist (Dr. Sheri Vanino) remotely via two-way video conferencing at trial. The motion asserted that the expert testimony was necessary to aid jury understanding of the typical psychology of young sexual assault victims, and thus why they typically do not contemporaneously report sexual assault. The motion explained that Dr. Vanino: (1) lived and practiced in or about Denver, Colorado; (2) regularly conducted weekly Tuesday night therapy sessions for parents of child sexual assault victims; and (3) thus might "be unable to" travel to Montana to personally testify at the scheduled March 9th trial "due to a scheduling conflict" with her regular Tuesday night therapy sessions. The State asserted that it would be "impracticable" for Dr. Vanino to miss or reschedule her March 10th therapy session due to her coordination of her counseling of child sexual assault victims and their parents. The motion asserted that the prosecutor was still "actively working" to secure her personal presence at trial, but sought "contingent" leave for her to testify remotely if necessary. At a pretrial conference on February 26, 2020, the prosecutor advised that he had since confirmed that Dr. Vanino had a definite irreconcilable scheduling conflict with her regular Tuesday night therapy sessions. The State therefore sought unqualified leave for her to testify via video conferencing remotely from Colorado.

¶6 Strommen objected. He demanded that she testify, if at all, subject to personal incourt cross-examination. He asserted that personal in-court cross-examination was particularly essential given that the alleged victim in this case did not report the alleged sexual intercourse until nine years later, thus implicating an issue as to her credibility as the primary State’s witness. The prosecutor responded that "[h]aving a trial in Glasgow obviously complicate[d] travel plans" and that it was thus "not practical" for Dr. Vanino to travel to Montana for trial despite the State’s "best [efforts] to get her there personally." The District Court interjected sua sponte that "the schedule’s always going to get kinked by the weather," and thus "there’s no way to guarantee" Dr. Vanino’s personal presence at the scheduled March trial "given the weather situations up" in Glasgow. The Court then granted the State’s motion from the bench "for all the reasons noted by the State," and the "additional reasons … just articulated." A corresponding written order followed on March 5, 2020. However, the scheduled March 9th trial was subsequently continued until July 2020 based on an uncontested defense motion alleging newly-disclosed exculpatory evidence.

¶7 In March 2020, the Governor of the State of Montana declared a state of emergency in Montana due to the emergent Covid-19 pandemic. The Chief Justice of this Court thereafter issued the first of several Judicial Branch and courtroom administration protocols regarding the Covid-19 crisis. As pertinent here, the Judicial Branch guidelines pertained to the scheduling and conduct of jury trials, jury administration procedures, use of video and telephonic conferencing for scheduled hearings, and limitation of non-essential travel for judicial branch employees.¹ The travel guidelines applied exclusively to judicial branch employees, however, and nothing in the courtroom administration guidelines authorized remote video or teleconferencing testimony of State witnesses in criminal trials.

¶8 In May 2020, two months before the scheduled July 2020 trial, the District Court notified the parties of its sua sponte intent to issue Covid-19 safety guidelines for the conduct of Strommen’s trial. In a subsequent May 20th order, the court issued case-specific Covid-19 protocols including restrictions on public participation, modified jury questionnaires, and granting "all witnesses" the option to testify remotely "via zoom or other available video" conferencing platform.²

¶9 On June 1, 2020, Strommen moved for an indefinite trial postponement "until the pandemic resolves" on the asserted grounds that the District Court’s blanket authorization of remote witness testimony at trial would violate his right to "face-to-face" confrontation of witnesses under U.S. Const. amend. VI and Mont. Const. art. II, § 24. The State opposed the motion on the asserted grounds that the prosecutor had experienced no "resistance" in scheduling the personal presence of slated state witnesses, and was aware of only one possible unconfirmed exception. The State thus asserted that it intended to have only one witness testify remotely—Dr. Vanino as previously authorized by pre-Covid court order in March 2020. On June 15th, the District Court denied Strommen’s continuance motion on the stated ground that its previously specified Covid-19 safety procedures would not infringe upon his trial rights.

¶10 At the final pretrial conference on June 24th, however, the District Court revisited the question of Dr. Vanino’s remote testimony again, to wit:

[Court]: So Dr. Vanino’s situation is specifically what? I think the process is going to be for any witness who requests a video appearance and testimony is to, again, have an offer of proof as to why …. [W]hat’s the specific reason for [Dr. Vanino’s] video testimony?

[State]: … The specifics of Dr. Vanino’s testimony is that she has a significant conflict … unrelated to Covid. She has a parent group that she does every Tuesday night. And if she doesn’t do her part, lots of children’s parents—these are children that have been sexually abused. The children’s group cannot go forward …. As the Court recalls, the last trial was back in March before Covid, and this Court issued an order … that allowed her to testi[fy] [remotely] … unrelated to Covid.

Now since we had [the District Court’s subsequent May 2020 Covid trial protocol] order, … I have not circled back to Dr. Vanino to ask her specifically if there’s been any Covid-related circumstances that make it difficult for her to travel. I didn’t ask her that question because the Court had already allowed her video testimony … before the Covid situation surfaced …. [H]er situation is she has a significant commitment that she cannot get out of Tuesday night that would be right in our case-in-chief that she can’t miss.

And she is an out-of-state witness; she lives in Denver, Colorado—or the Denver area[ ] [a]nd it’s significant travel for her to get to Glasgow, Montana, as well, I think that plays into it. And the Court granted our motion back in March.

[Court]: [The March 2020 order] was before the Covid issue arose and … before the last trial … in March … [which was] under our general protocol … both with...