State v. Ugalde

372 Mont. 234

311 P.3d 772

STATE of Montana, Plaintiff and Appellee,

v.Nevada R. UGALDE, Defendant and Appellant.

No. DA 11–0366.

Supreme Court of Montana.

Submitted on Briefs July 10, 2013.

Decided Oct. 17, 2013.

For Appellant: Gregory D. Birdsong; Birdsong Law Office, PC; Missoula, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant Attorney General; Helena, Montana, Scott Twito, Yellowstone County Attorney; Juli M. Pierce, Deputy Yellowstone County Attorney; Billings, Montana.

Justice BETH BAKER delivered the Opinion of the Court.

[372 Mont. 235]¶ 1 Nevada Ugalde appeals her conviction by a jury in the Thirteenth Judicial District Court of aggravated assault, a felony. We consider the following issues on appeal:

¶ 2 1. Whether the District Court should have dismissed the charges against Ugalde when, after Ugalde disclosed information and defense strategies to the State Medical Examiner, communication occurred between the Medical Examiner and the Yellowstone County Attorney.

¶ 3 2. Whether Ugalde is entitled to a new trial on the ground that the State's witnesses were unnecessarily cumulative or unfairly prejudicial to Ugalde.

[372 Mont. 236]¶ 4 3. Whether Ugalde is entitled to a new trial on the ground that the prosecution presented prejudicial victim impact testimony.

¶ 5 4. Whether Ugalde is entitled to a new trial on the ground of prosecutorial misconduct during closing argument.

¶ 6 5. Whether Ugalde is entitled to a new trial because her counsel provided ineffective assistance.

¶ 7 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 8 On the morning of June 11, 2008, Nevada Ugalde placed several urgent phone calls to Susan Napier, the mother of the child she was babysitting. Through tears, Ugalde told Napier that the child, I.N., had fallen from the crib and expressed concern about the way he was acting and breathing.

¶ 9 Napier did not have a vehicle with her, so she began walking toward Ugalde's home. Meanwhile, Ugalde called her husband and told him about I.N.'s condition. Ugalde's husband asked or told her to “Call 911,” hung up the phone, left his workplace, and began driving home. On the way, he spotted Napier walking on the side of the road and stopped to pick her up. They arrived at the Ugalde home together, approximately thirty minutes after the initial phone call between Ugalde and Napier. Ugalde never called 911.

¶ 10 Ugalde handed I.N. to Susan at the front door. I.N.'s eyes were nearly closed and he was barely breathing. Ugalde's husband took Susan and I.N. to the emergency room at the Billings Clinic.

¶ 11 In the emergency room, Dr. Curtis Lee discovered multiple injuries to I.N.'s head and internal bleeding. Dr. Linda Johnson, a general practice pediatrician, and Dr. Eugen Dolan, a neurosurgeon, were called in to assist with I.N.'s care. Dr. Johnson helped identify and reduce immediate problems with intracranial pressure. Dr. Lee and Dr. Dolan decided to fly I.N. to a children's hospital in Denver for additional treatment.

¶ 12 Since the incident, I.N. has undergone extensive physical, speech, and occupational therapy. I.N. suffered hearing loss and visualimpairments requiring several surgeries. The State's professional witnesses believed the injuries were inconsistent with simply falling from a crib to a carpeted floor.

¶ 13 Several people involved with I.N.'s treatment reported the incident to law enforcement pursuant to mandatory reporting obligations. On June 29, 2009, the State filed an Information charging Ugalde with aggravated assault in violation of § 45–5–202, MCA (2007). The Information alleged that Ugalde purposely or knowingly “shook or slammed” I.N. on June 11, 2008, causing serious bodily injury. Ugalde entered a plea of not guilty and received a public defender. Due to a conflict, Ugalde was appointed new counsel on July 2, 2009.

¶ 14 Ugalde's counsel decided she would need to retain a pathologist as an expert. To that end, she consulted with Eric Olsen, coordinator for resource allocations to contract counsel for the Office of the Public Defender [OPD], to comply with the OPD's internal policy that requires approval for any expenses over $200.

¶ 15 After voicing concerns about funding, Olsen explained that he was “not inclined to approve the request” and instead put Ugalde in contact with Dr. Gary Dale, the State Medical Examiner at the State Crime Lab. Ugalde could consult Dr. Dale without charge due to an agreement between the OPD and the State Crime Lab.

¶ 16 Under the impression that her communications would be kept confidential, Ugalde's counsel spoke with Dr. Dale. Dr. Dale remarked that the State's identification of Dr. Thomas Bennett as an expert in the case surprised him, in part because he knew the State already was aware of potential problems with using Dr. Bennett in child abuse cases. Dr. Dale recommended Dr. Mary Case as an independent expert for the defense. Dr. Dale never signed a written agreement with the public defender's office or with Ugalde's counsel. Nor apparently did he discuss with defense counsel any agreement to maintain confidentiality.

¶ 17 After concluding that his involvement with Ugalde was “terminated,” Dr. Dale telephoned Dennis Paxinos, the Yellowstone County Attorney, and discussed what he perceived as problems with the use of Dr. Bennett as an expert in this case. Dr. Dale warned against using Dr. Bennett as a witness, though he indicated that he agreed with Dr. Bennett's conclusion that the injuries were inconsistent with an accidental cause. Paxinos later related the information obtained from Dr. Dale to the prosecutor handling the case.

¶ 18 On November 25, 2009, Ugalde filed a motion to dismiss the charge for alleged violations of confidentiality and due process. Ugalde argued that by revealing defense information and strategy to Paxinos, Dr. Dale violated a duty to keep his consultation with Ugalde's counsel confidential. In addition, Ugalde's motion alleged interference with the attorney-client relationship in violation of the Sixth Amendment and a violation of the right to effective assistance of counsel.

¶ 19 The District Court denied the motion to dismiss on March 16, [372 Mont. 238]2010, concluding that Dr. Dale owed the defense no duty of confidentiality and that the proper remedy in any event would be disqualification of the witness—not dismissal of the Information. The court rejected Ugalde's due process violation and Sixth Amendment arguments. Finally, the court concluded that these facts did not demonstrate ineffective assistance of counsel.

¶ 20 Trial commenced on April 19, 2010, and lasted five days. The State listed twenty-two anticipated witnesses in its trial brief and called eighteen witnesses at trial. One witness for the State, Dr. Smith, was added fourteen days before the trial began.

¶ 21 On the first day of trial, Ugalde objected to the State's plan to call more than ten witnesses, especially the wide range of experts called to establish the element of serious bodily injury. Ugalde's counsel argued that the parade of witnesses was unnecessary, cumulative, and could serve only to generate hostility toward Ugalde and sympathy for the victim.

¶ 22 In response, the court asked if Ugalde would stipulate to the element of serious bodily injury and thereby remove the State's obligation to prove that required element of the offense. Ugalde's counsel indicated that she was not comfortable stipulating to serious bodily injury. The court stated, “Then I think the State has to prove it.” The court overruled each of Ugalde's many subsequent objections to cumulative testimony throughout the trial. In total, the State called approximately eleven witnesses over the next three-and-a-half days to testify to various aspects of the injuries to I.N.

¶ 23 The theory of the defense was that I.N. fell from the crib at Ugalde's home. Ugalde called two expert witnesses: Dr. Kenneth Monson, a biomechanical engineer, who testified that the injuries could have been caused by a short accidental fall, and Dr. John Plunkett, a pathologist, who explained that a short fall could cause this constellation of injuries. Dr. Plunkett also testified about a growing skepticism to shaken baby syndrome in certain sections of the medical community—particularly biomechanical engineers and, increasingly, pathologists. Lisa Justis, a social worker, testified about I.N.'s ability to pull himself up to a position where falling from the crib was possible, and Ugalde also testified on her own behalf. In its closing argument, defense counsel emphasized that, despite the surfeit of expert witnesses, the State could not eliminate the possibility of an accidental cause of the injuries beyond a reasonable doubt.

¶ 24 On April 23, 2010, a unanimous jury found Ugalde guilty of aggravated assault. The District Court sentenced her to twenty years, with five suspended, and ordered her to pay $1,331,636.65 in restitution.

¶ 25 Following the trial, Ugalde filed a motion for a new trial or dismissal based on Dr. Dale's disclosure of confidential information to Paxinos, cumulative evidence, the presentation of evidence previously ruled improper, and improper closing argument. The District Court denied the motion. Ugalde appeals her conviction and the court's denial of her motion for a new trial.

STANDARD OF REVIEW

¶ 26 We review for abuse of discretion a district court's denial of a motion for a new trial. State v. Thorp, 2010 MT 92, ¶ 39, 356 Mont. 150, 231 P.3d 1096 (2010) (citing State v. Makarchuk, 2009 MT 82, ¶ 14, 349 Mont. 507, 204 P.3d 1213).

¶ 27 This Court generally will “not address issues of prosecutorial misconduct pertaining to a prosecutor's statements not objected to at trial.” State v. Aker, 2013 MT 253, ¶ 21, 371 Mont. 491, 310 P.3d 506 (citing State v. Longfellow, 2008 MT 343, ¶ 24, 346 Mont. 286, 194 P.3d 694). “We may review such an issue, however, under the plain error doctrine.” Aker, ¶ 21 (ci...