Summary
The Montana Supreme Court affirmed Jimmy Roger Pound’s felony sexual assault conviction. The court held that the district court properly allowed the child victim to testify outside Pound’s presence under Montana law based on findings of fear and substantial emotional trauma. The court also held that testimony from a forensic interviewer about the victim’s prior inconsistent statements was admissible and did not violate Montana evidentiary rules or Pound’s confrontation rights.
Topics
Practice areas
Questions Presented
- Whether the District Court erred by finding that the child victim was unable to testify in open court in Pound's presence and ordering her testimony to be taken outside his presence through two-way electronic audio-video communication.
- Whether the District Court erred by admitting, through the forensic interviewer, the victim's prior statements that were inconsistent with her trial testimony, including under Montana Rules of Evidence 613 and 801(d)(1)(A) and the Confrontation Clause.
Holdings
- A district court may order a child witness to testify outside the defendant's presence when, after the required hearing, clear and convincing evidence establishes that the child is unable to testify in the defendant's presence because of fear or substantial emotional trauma. The District Court properly followed the statutory requirements and did not abuse its discretion in making that determination.
- A witness's prior statements are admissible as prior inconsistent statements under Montana Rule of Evidence 801(d)(1)(A) when the witness testifies at trial subject to cross-examination and the prior statements are inconsistent with the trial testimony. A lapse of memory, evasion, denial, or inability to remember may constitute an inconsistency. Admission of such statements, including through extrinsic evidence after the witness's testimony, does not violate Rule 613(b) or the federal or Montana constitutional rights of confrontation when the witness is available for cross-examination and the opposing party had an opportunity to examine the witness.
Key quotations
“The essential purpose of the right to confront witnesses is to secure the opportunity to test the witness’ testimony through cross-examination.” (¶ 30)
“It is established that a “claimed lapse of memory is an inconsistency within the meaning of Rule 801(d)(1)(A).”” (¶ 33)
“It is not a violation of the right of confrontation if the prior inconsistent statement is introduced into evidence after the testimony of the witness in question.” (¶ 39)
Factual background
Pound was convicted of sexually assaulting his girlfriend's four-year-old daughter. Before trial, the District Court found by clear and convincing evidence that the five-year-old victim would be unable to testify in Pound's presence because of fear and substantial emotional trauma, and it allowed her to testify from a separate room by two-way audio-video communication. At trial, the victim gave evasive and inconsistent testimony, including that she could not remember what happened, while acknowledging that Pound had touched her private area. The court then permitted a forensic interviewer to testify about prior statements by the victim that were inconsistent with her trial testimony.
Procedural history
The State charged Pound with felony sexual assault under Montana Code Annotated § 45-5-502. After a four-day jury trial in June 2012, the jury found him guilty. The District Court later designated Pound a Tier III sexual offender and sentenced him to 75 years in the Montana State Prison, with 10 years suspended. Pound appealed, challenging the use of closed-circuit testimony by the child victim and the admission of the victim's prior inconsistent statements through a forensic interviewer.