STATE v CAMPBELL
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No. 13896 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 THE STATE OF MONTANA, Plaintiff and Respondent, -vsMERRILL CAMPBELL, Defendant and Appellant. Appeal from: District Court of the Second Judicial District, Honorable James D. Freebourn, Judge presiding. Counsel of Record: For Appellant: J. Brian Tierney, Butte, Montana -.,, -- For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Mike McGrath argued, Assistant Attorney General, Helena, Montana John G. Winston, County Attorney, Butte, Montana Submitted: Decided : A ~ r i l28. 1978 jbn - %, 1978 M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court: Defendant appeals from t h e judgment of conviction e n t e r e d by t h e D i s t r i c t Court, S i l v e r B w County, a f t e r a o jury found him g u i l t y of aggravated a s s a u l t . On November 16, 1976, Tom McKenzie, a welfare worker with t h e Department of S o c i a l and R e h a b i l i t a t i o n Services of t h e S t a t e of Montana, went t o t h e Head S t a r t Program i n Butte t o follow up a r e p o r t of c h i l d abuse. McKenzie spoke with Pat S u l l i v a n , Head S t a r t D i r e c t o r , and observed Gina Houser, a four year o l d g i r l who had been beaten. That same day, November 16, 1976, McKenzie took Gina Houser t o D r . Dennis McCarthy, who examined t h e c h i l d and concluded t h a t h e r i n j u r i e s had been i n f l i c t e d by another. The c h i l d ' s n a t u r a l mother, Cheryl Houser Campbell, contacted t h e Head S t a r t School a t 2:00 p.m. on November 16, 1976, t o a s c e r t a i n why Gina had n o t returned on t h e school bus. The school advised t h e mother the welfare department had taken custody of Gina and t h r e e o t h e r c h i l d r e n of Cheryl Houser Campbell. The mother t o l d t h e welfare department t h a t Gina had f a l l e n from her tricycle. The welfare department, however, advised Cheryl b Houser Campbell t h a t ~ i n a ' s r u i s e s were n o t caused by a f a l l , and d i r e c t e d t h e mother t o the S i l v e r Bow County a t t o r n e y . A t 3:00 p.m., November 16, 1976, Cheryl Houser Campbell went t o t h e county a t t o r n e y and s t a t e d t h a t Gene Houser, h e r exhusband, had beaten Gina. L a t e r t h a t evening four of Cheryl Houser campbell's daughters, Gina and Rhonda Houser, and J a n e t and Kathy Campbell, were placed i n f o s t e r c a r e by Tom McKenzie. On t h e evening of t h e placement of t h e c h i l d r e n i n f o s t e r c a r e , Tom McKenzie spoke by long d i s t a n c e telephone with Gene Houser. McKenzie v e r i f i e d t h a t Gene Houser was i n Los Angeles, C a l i f o r n i a , on t h e day of t h e beating and thus could n o t have beaten t h e g i r l s . The next day, November 1 7 , 1976, Cheryl Houser Campbell was charged i n j u s t i c e c o u r t with giving f a l s e information t o a p o l i c e o f f i c e r and endangering t h e welfare of h e r c h i l d r e n by h e r f a i l u r e t o seek medical a i d f o r them. placed i n j a i l . The mother was She then t o l d a u t h o r i t i e s t h a t defendant, M e r r i l l Campbell, had spanked t h e c h i l d r e n on November 15, 1976, with a bed slat. The charges a g a i n s t t h e mother were l a t e r dropped and on December 6 , 1976, t h e S t a t e f i l e d an Information charging defendant with t h e aggravated a s s a u l t of K r i s t a Flanigan, Cheryl Houser Campbell's f i f t h daughter, and Gina Houser on November 15, 1976. The four minor c h i l d r e n , including Gina, were immediately placed by t h e welfare department i n t h e custody of Cheryl Houser Campbell. K r i s t a Flanigan, age s i x , was placed i n a Deer Lodge Montana, f o s t e r home and t a l k e d t o h e r mother by telephone only once during t h e s i x months p r i o r t o defendant's t r i a l . Krista i d e n t i f i e d defendant a s t h e person who had beaten t h e g i r l s with a wooden plunger handle, During t h e i n v e s t i g a t i o n K r i s t a picked t h e handle from among t h r e e s t i c k s t h e deputy county a t t o r n e y showed h e r . A t h i s arraignment, defendant moved t h e c o u r t t o o r d e r t h a t defendant be allowed t o submit t o a polygraph t e s t , ments were made f o r a polygraph t e s t , however. N arrangeo Defendant's t r i a l commenced on April 20, 1977. During t h e s t a t e ' s case, a wooden plunger handle was admitted a s an e x h i b i t , over defendant's objection. Also over defendant's objection, the court allowed two Head S t a r t workers and a police o f f i c e r t o t e s t i f y t o statements made by four year old Gina Houser. A t the close of the s t a t e ' s case, defendant moved t h e court t o dismiss t h e Information o r i n t h e a l t e r n a t i v e , t o d i r e c t a v e r d i c t f o r defendant on the grounds t h a t the s t a t e ' s evidence was i n s u f f i c i e n t a s a matter of law and upon the grounds t h a t c e r t a i n witnesses' testimony was p r e j u d i c i a l t o defendant. The motion was denied, the jury returned a v e r d i c t of g u i l t y and t h e d i s t r i c t judge sentenced defendant t o f i v e years i n t h e s t a t e prison. Defendant r a i s e s seven i s s u e s i n h i s appeal from t h e D i s t r i c t Court judgment: 1. Did the court e r r i n f a i l i n g t o order a polygraph t e s t a f t e r defendant had requested one? 2. Is the evidence s u f f i c i e n t t o support the v e r d i c t ? 3. Did the court e r r i n admitting the wooden plunger handle i n t o evidence? 4. Did the court e r r i n allowing t h r e e witnesses t o t e s t i f y t o statements made by four year old Gina Houser? 5. Did the court e r r i n l i m i t i n g the testimony of a defense witness? 6. Did the s t a t e c r e a t e r e v e r s i b l e e r r o r when i t asked a r e b u t t a l witness f o r defendant's general reputation i n the community? 7. Did the s t a t e improperly introduce evidence of other crimes committed by defendant? The d i s t r i c t judge committed r e v e r s i b l e e r r o r when he allowed t h e two Head S t a r t teachers and the police o f f i c e r t o t e s t i f y , over defendant's objection, t o statements made by four year old Gina Houser t o t h e teachers. The alleged statement of Gina t h a t defendant had beaten her and her s i s t e r with a wooden plunger handle went t o the very f a c t s which the s t a t e was t r y i n g t o prove, was a statement offered t o prove t h e t r u t h of the matter a s s e r t e d and was therefore hearsay. The S t a t e concedes t h a t the statement was n o t admissible within the r e s gestae r u l e because the statement, made a t l e a s t 24 hours a f t e r the beating, " * * * was complained of nor not made contemporaneously with the a c t does i t appear t o have been made i n a s t a t e of excitement o r shock. * * * Narratives of a p a s t t r a n s a c t i o n do n o t come within the r e s gestae rule." S t a t e v. Shambo, (1958), 133 Mont. 305, 309, 310, 322 P.2d 657. It i s possible t h a t Gina Houser, although only four years old a t the time of t r i a l , was competent t o t e s t i f y . 93-701-3(2), R.C.M. Section 1947, the s t a t u t e i n e f f e c t a t the time of defendant's April 20, 1977, t r i a l , excluded from the general r u l e t h a t a l l persons a r e q u a l i f i e d t o t e s t i f y : "Children under t e n years of age who appear incapable of receiving j u s t impressions of t h e f a c t s respecting which they a r e examined, o r of r e l a t i n g them truly." A four year old witness i s not necessarily too young t o perceive c o r r e c t impressions of t h e f a c t s he observed, t o remember those impressions, t o communicate what he saw, and t o understand h i s duty t o t e l l the t r u t h . Other courts have held t h a t children four years old o r younger were competent t o t e s t i f y . (1974), 64 Wisc.2d 432, 219 N.W.2d (Tex.Crim.App. 1973), 500 S.W.2d 81Ohio App. 375, 79 N.E.2d Love v. S t a t e , 294, 298; Fields v. S t a t e , 500, 502; H i l l v. Skinner, (1947), 787, 789. The question of whether t h e c h i l d i s competent t o t e s t i f y i s a matter addressed t o the sound d i s c r e t i o n of the t r i a l judge. S t a t e v. Shambo, supra. I n t h i s case, if Gina Houser had been q u a l i f i e d a s a witness, had t e s t i f i e d t h a t defendant had beaten her and her s i s t e r , and then had her c r e d i b i l i t y impeached by defense suggestions t h a t since t h e beating she had been improperly influenced, the s t a t e might well r e h a b i l i t a t e her by introducing the alleged statements t o the Head S t a r t workers a s p r i o r cons i s t e n t statements. Allen v. Moore, (1975), 167 Mont. 330, 338, 538 P.2d 1352. Gina, however, was not a witness, nor was she even present a t the t r i a l . The testimony concerning Gina's statements was not offered t o corroborate the testimony of Gina, who was never a witness, but was introduced by t h e s t a t e t o corroborate the testimony of s i x year old Krista Flanigan. The testimony a s t o Gina's statements corroborated and strengthened Krista Flanigan's testimony and was so damaging t o defendant's case t h a t we a r e not convinced of the s t a t e ' s contention t h a t the admission of t h e testimony was harmless. Upon remand, the D i s t r i c t Judge s h a l l examine the c h i l d ' s competency t o t e s t i f y a s i t r e l a t e s t o the time of the new t r i a l , and not t o the time when the crime occurred nor t o the time of the previous t r i a l . 569 P.2d 1341, 1344. S t a t e v. Gamer, (1977), 116 Ariz. 443, The c h i l d may t e s t i f y i f the judge c o r r e c t l y determines her t o be competent. I f the judge r u l e s t h a t Gina i s n o t competent t o t e s t i f y , testimony concerning statements she made t o o t h e r s implicating defendant i n the crime a r e a l s o inadmissible. Coleman v. Higgins, (1960), 137 Mont. 222, 226, 351 P.2d 901. Although this cause is reversed and remanded on the basis of this issue alone, we shall discuss two other issues raised by defendant for the purposes of retrial. The District Court did not err in failing to order that defendant be given a polygraph test. Defendant urges that Montana should adopt the rule set forth in State v. Stanislawski, (1974), 62 Wis- 2d 730, 216 N.W. 2d 8, wherein the Wisconsin Supreme Court set forth criteria for admissibility of polygraph evidence. The Montana rule is that the results of polygraph examinations are not admissible as evidence in a criminal trial. State v. Hollywood, (1960), 138 Mont. 561, 358 P.2d 437; State v. Cor, (1964), 144 Mont. 323, 396 P.2d 86. We save the issue of whether this Court shall adopt a Stanislawski or similar test for admissibility of polygraph testimony for a case in which the admission or exclusion of polygraph evidence determines the outcome of the case. We do note, however, that defendant could not satisfy the Stanislawski test. The Stanislawski case merely establishes that the use of the polygraph is clearly within prosecutorial discretion; that the test requires a prior written stipulation by all parties, including the prosecution, and that, notwithstanding the stipulation, admissibility of the test results is subject to the sound discretion of the trial court. Because neither the prosecution nor the district court concurred in the admission of polygraph evidence, the Stanislawski test was not met. Nor did the court err in admitting the wooden plunger handle into evidence. Physical evidence may be introduced and received into evidence after proof is made connecting it with the accused or the crime. State v. Best, (1972), 161Mont. 20, 25, 503 P.2d 997. Krista Flanigan testified that she and her sister were beaten by defendant and that the plunger handle was t h e weapon defendant used i n the beating. Officer M i l l e r t e s t i f i e d t h a t he had found the plunger handle under the c h i l d r e n ' s bed, had placed h i s i n i t i a l on t h e handle and had stored t h e handle i n the county a t t o r n e y ' s o f f i c e . The o f f i c e r t e s t i f i e d t h e handle was i n the same condition a t t r i a l , a s i t was on the day he received i t . Defendant a s s e r t s t h a t , because Cheryl Houser Campbell emphatically a s s e r t e d t h a t a bed s l a t and n o t a plunger handle was t h e weapon used i n the beating, the plunger handle should not have been admitted i n t o evidence. Because the s t a t e presented s u f f i c i e n t evidence connecting the weapon with the crime and e s t a b l i s h i n g t h e chain of custody, the contrary testimony of Cheryl Houser Campbell went only t o weight and n o t t o a d m i s s i b i l i t y . The judgment of the D i s t r i c t Court i s reversed and t h i s cause i s remanded f o r a new t r i a l . Austice W Concur: e - Chief J u s t i c e ,
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