No. 95-513

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead,

The Honorable Katherine R. Curtis, Judge presiding

COUNSEL OF RECORD:

For Appellant:

Wendy Holton, Helena, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Carol Schmidt, Assistant Attorney

General, Helena, Montana; Thomas J. Esch, Flathead County Attorney,

Kalispell, Montana

Submitted on Briefs: February 13, 1997
Justice James C. Nelson delivered the Opinion of the Court

This is an appeal horn the Eleventh Judicial District Court, Flathead County. On July

21, 1995, the District Court entered an order denying Defendant Hanson’s motion for new

trial following a jury conviction of one count of sexual assault and one count of deviate

sexual conduct. Subsequently, the District Court sentenced Hanson to two concurrent terms

in the Montana State Prison. Hanson, through new counsel, appeals from the District Court’s

denial of his motion for new trial. We affirm.

We restate the following issues raised on appeal:

1. Are Defendant Hanson’s claims of error reviewable under the common law

plain error doctrine or alternatively under the cumulative error doctrine?

2 . Was Defendant Hanson denied his constitutional right to effective assistance

of trial counsel?

FACTUAL AND PROCEDURAL BACKGROUND

Emmy Gregg (Emmy) and her then four-year-old son, Aaron, lived across the street

from Defendant Hanson (Hanson) in Whitefish, Montana. Emmy and Hanson met during

the summer of 1990 and began dating in October 1990. By May 199 1, Emmy and Aaron

moved into Hanson’s home. In June 1992, Emmy and Aaron moved out of Hanson’s home;

however, Emmy and Hanson continued dating until the fall of 1993. Aaron testified at trial

that during the time they all lived together, Hanson sexually abused him. Apparently, at

Hanson’s request, all three would shower together to conserve hot water. And, at times, only

Hanson and Aaron would shower together. Aaron testified at trial that during the times that
he and Hanson showered alone, Hanson would wash Aaron’s genital area and Aaron would

wash Hanson’s genital area. Also, Aaron testified that Hanson would tell Aaron to perform

oral sex on him, which Aaron did on several occasions.

In the fall of 1993, Emmy became concerned about Aaron’s behavior. In particular,

Emmy noticed that Aaron was having nightmares about Hanson and expressed anger toward

Hanson. Furthermore, Emmy noted that Aaron began wetting the bed, locking the door when

he took baths, and hiding under the bed and in closets when the phone rang or someone came

to the door. Emmy testified that when she asked Aaron on different occasions about any

improper contact with Hanson, Aaron denied that it occurred.

However, on March 24, 1994, Emmy met Detective Maxine Lamb of the Flathead

County Sheriffs Department and discussed her concerns. That same day Detective Lamb

went to Aaron’s school to interview him. During her one-half hour interview with Aaron, he

disclosed incidents involving Hanson which Detective Lamb believed described sexual

abuse. On April 14, 1994, Hanson was charged by Information in the Eleventh Judicial

District Court, Flathead County, with one count of sexual assault and one count of deviate

sexual conduct, both felonies, in violation of 5 45-5-502(l) and 5 45-5-505(l), MCA,

respectively. At his May 27, 1994 arraignment, Hanson plead not guilty. A jury trial

commenced on March 6, 1995. On March 9, 1995, the jury returned a verdict of guilty to

both counts. Hanson filed a motion for a new trial on April 7, 1995. The District Court

denied Hanson’s motion for a new trial on July 2 1, 1995, holding that the testimony of Aaron,

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Detective Lamb and Beatrice Rowe, Aaron’s therapist, was all properly placed before the

jury. On July 24, 1995, the District Court sentenced Hanson to twenty years in the Montana

State Prison for the offense of sexual assault and ten years for the offense of deviate sexual

conduct, both sentences to run concurrently. Hanson, now represented by different counsel,

appeals from the District Court’s denial of his motion for a new trial.

DISCUSSION

1 . Are Hanson’s claims of error reviewable under the common law plain

error doctrine or alternatively under the cumulative error doctrine?

Hanson, through new appellate counsel, has raised numerous issues for the first time

on appeal. Hanson contends that his trial was fundamentally unfair in violation of his rights

under the Sixth Amendment of the United States Constitution and under Article II, Section

24 of the Montana Constitution, and, therefore, his convictions should be reversed. Hanson

concedes that these issues were not properly preserved for appellate review. However,

Hanson alternatively argues under both the plain error doctrine and under the cumulative

error doctrine that this Court should, nonetheless, exercise its inherent power of appellate

review conferred by the Montana Constitution to address the merits of his arguments and

reverse his convictions. The State responds that neither doctrine is applicable in this case.

We agree.

In State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208,215, we explained that

we employ the common law plain error doctrine only on a case by case basis:

[T]his Court may discretionarily review claimed errors that implicate a

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criminal defendant’s fundamental constitutional rights, even if no

contemporaneous objection is made and notwithstanding the inapplicability of

the § 4620-701(2), MCA, criteria, where failing to review the claimed error

at issue may result in a manifest miscarriage ofjustice, may leave unsettled the

question of the fundamental fairness of the trial or proceedings, or may

compromise the integrity of the judicial process.

Furthermore, the doctrine of cumulative error refers to a number of errors which prejudice

a defendant’s right to a fair trial. State v. Close (1981), 191 Mont. 229,245,623 P.2d 940,

948. However, “[wlhile Montana recognizes that the accumulation of errors may prejudice

a defendant’s right to a fair trial, mere allegations of error without proof of prejudice are

inadequate to satisfy the doctrine.” State v. Campbell (1990), 241 Mont. 323, 329, 787 P.2d

329, 333 (citation omitted).

Hanson begins by raising the three issues he previously presented to the District Court

in his motion for new trial. First, Hanson asserts that Aaron’s testimony was tainted and

unreliable, and, therefore, should not have gone to the jury. Specifically, Hanson argues that

Aaron’s testimony was not reliable because Detective Lamb used coercive or suggestive

interviewing techniques when she interviewed Aaron. Second, Hanson claims that Detective

Lamb deliberately failed to preserve exculpatory evidence vital to the defense when she did

not record her interview with Aaron, and, therefore, Hanson asserts the charges against him

should be dropped.

Yet, upon consideration of these two arguments, we note, as did the District Court,

that Hanson failed to object to Aaron’s testimony at the time of trial. Furthermore, as the

District Court noted, Hanson himself called Detective Lamb to the witness stand in an effort

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to discredit her by questioning Detective Lamb about the deficiencies in her interviewing

techniques and the absence of any video recording of her interview with Aaron. We agree

with the District Court’s July 21, 1995 Order wherein the court ruled that both the evidence

of Detective Lamb’s failure to preserve a record of her interview with Aaron as well as the

effect of her interviewing techniques on the reliability of Aaron’s testimony were properly

considered by the jury. Consequently, Hanson’s arguments that the District Court should

have held a pretrial hearing to determine Aaron’s reliability and that Detective Lamb’s failure

to videotape her interview with Aaron resulted in suppression of exculpatory evidence in

violation of Brady v. Maryland (1963), 373 U.S. 83,83 S.Ct. 1194, 10 L.Ed.2d 215, are not

properly before us on appeal and we decline to address them.

Third, Hanson argues that the State improperly presented the testimony of Beatrice

Rowe (Rowe), Aaron’s therapist, on rebuttal. Specifically, Hanson asserts that the defense

never questioned Aaron’s credibility, and, therefore, Rowe was precluded from testifying

about her assessment of Aaron’s credibility. While, on appeal, Hanson concedes that he did

not properly preserve this issue for appeal, we note that his trial counsel did in fact make an

objection to Rowe’s rebuttal testimony which the District Court addressed in its July 21, 1995

Order denying Hanson’s motion for a new trial. Consequently, we will review the merits of

Hanson’s argument on this matter.

We agree that an expert witness is generally not allowed to comment on the credibility

of an alleged victim. However, an exception to this general rule is made in cases involving

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sexual abuse of a minor child when that child testifies and the child’s credibility has been

questioned. State v. Harris (1991), 247 Mont. 405, 410, 808 P.2d 453, 455. In this case,

Aaron, who was eight years old at the time of trial, testified in person and Hanson, as a part

ofhis defense strategy, questioned Aaron’s credibility to show that Aaron had falsely accused

him. In an effort to do this, Hanson elicited testimony from Jack Oakwright, Ph.D., an expert

witness. Dr. Oakwright testified that a situation such as the bitter relationship between

Emmy and Hanson, which Aaron witnessed, would raise a “red flag” that a child might make

a false accusation. Accordingly, we agree with the District Court’s July 21, 1995 Order,

wherein the court ruled that Rowe’s rebuttal testimony concerning Aaron’s credibility was

proper.

Next, for the first time on appeal, Hanson specifies four errors made by the State

which allegedly violated Rule 404(b), M.R.Evid., and the due process clauses of the Montana

Constitution and the United States Constitution. Specifically, Hanson asserts that the State

introduced testimony and evidence of other acts in violation of Rule 404(b), M.R.Evid.

First, Hanson argues that Emmy’s testimony regarding the animosity present in their

relationship is irrelevant to the question of whether Hanson abused Aaron. We decline to

address this argument because Hanson not only failed to object to this testimony at trial, but,

moreover, because Hanson himself elicited similar evidence regarding the bitter relationship

between Emmy and himself as a part of his defense strategy to demonstrate that Emmy had

a motive to encourage Aaron to make false claims against him regarding sexual abuse.

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Furthermore, Hanson asserts that the State demonstrated its ability to distinguish between

relevant and irrelevant evidence as demonstrated by its objection to Hanson’s testimony

concerning Emmy’s alleged propensity to deceive. Specifically, Hanson explains that he

attempted to introduce evidence of a situation when Emmy purportedly called Hanson on

three consecutive occasions requesting a ride home thereby causing him to drive repeatedly

to a specific location when she was actually home the entire time. Hanson notes that the

State objected to this testimony on the basis that this information was irrelevant to the

question of whether Aaron was sexually abused. Consequently, Hanson argues that this

proves that the only reason the State introduced Emmy’s testimony regarding Hanson’s

actions during the course of their relationship was “to destroy Dale Hanson’s reputation and

credibility with the jury.” We disagree. After reviewing the record, we conclude that the

District Court properly struck from the record and admonished the jury to disregard Hanson’s

testimony concerning this incident because Hanson failed to lay the proper foundation that

Aaron was present when Emmy made these alleged phone calls to Hanson. The court

properly reasoned that because Aaron did not witness these alleged interactions between

Emmy and Hanson, it would not, contrary to Hanson’s claim, affect Aaron’s propensity to

testify falsely against him.

Second, Hanson argues that Detective Lamb’s answers to the State’s questions

concerning previous criminal investigations of Hanson regarding his relationship with Emmy

constituted inappropriate comments on Hanson’s character. Yet, Hanson failed to object to

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this testimony at trial. In fact, as the State points out, it was Hanson who called Detective

Lamb to the stand, and, consequently, the State’s cross-examination questions pertaining to

these investigations merely responded to the testimony that Hanson previously elicited from

Detective Lamb during direct examination.

Third, Hanson asserts that the State’s cross-examination of him went beyond the scope

of direct examination. Hanson contends that the State suggested that he fit the profile of an

abuser by asking Hanson questions which implied that Hanson had been sexually abused

himself as a child. Additionally, Hanson contends that the State attempted to portray him as

a racist by asking questions regarding Hanson’s alleged thoughts concerning the connection

between Emmy’s drinking history and her Native American heritage. Again, Hanson failed

to object to the State’s cross-examination questions. Moreover, as the State notes, Hanson

put before the jury the issue of his relationship with Emmy as a part of his defense strategy,

and, therefore, the prosecution properly cross-examined Hanson regarding a number of

different issues to further illuminate the nature of his relationship with Emmy.

Fourth, Hanson claims that the State improperly impeached him by introducing hostile

notes that Hanson had left on Emmy’s car. Hanson argues that the State only introduced

these notes to show that Hanson was a “bad man.” Yet, upon review of the record, we note

that Hanson denied being jealous of Emmy, and, consequently, the hostile notes were

properly introduced to impeach Hanson’s prior testimony. Furthermore, Hanson was given

the opportunity to object to the introduction of these notes when the State made a sidebar

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offer of proof and Hanson expressly stated he had no objection.

We recognize that under Rule 404(b), M.R.Evid., “[elvidence of other crimes, wrongs,

or acts is not admissible to prove the character of a person in order to show action in

conformity therewith.” However, we again note that Hanson failed to object to any of this

evidence during the trial. Moreover, the strategy of the defense was to show that Emmy was

vindictive toward Hanson and that this animosity would have caused her to compel Aaron

to testify falsely against Hanson, and, consequently, much of the testimony regarding the

bitter relationship between Emmy and Hanson was elicited by Hanson himself as a part of

his defense strategy. Accordingly, we agree with the State that the evidence to which

Hanson now objects on appeal was not evidence of other acts prohibited by Rule 404(b),

M.R.Evid.

Finally, Hanson argues that the State made inappropriate remarks in its closing

argument. Specifically, Hanson refers to a portion of the State’s closing argument in which

he claims that the prosecutor inappropriately accused the defense expert, Jack Oakwright,

Ph.D., of lying. We note that in one part of the closing argument, the prosecutor said to the

jury, “I don’t think [Dr. Oakwright] was being honest with you.”

We have stated numerous times that “it is highly improper [for an attorney] to

characterize either the accused or the witnesses as liars or offer personal opinions as to

credibility” because it improperly invades the province of the jury. State v. Stringer (1995),

271 Mont. 367,380,897 P.2d 1063,107l (citations omitted). However, we will not consider

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it reversible error every time an attorney comments on the credibility of a witness. Stringer,

897 P.2d at 1071. As we stated in Strinrrer, a prosecutor may comment on contradictions and

conflicts in the testimony, however, “it [is] the task of the jury to determine which testimony

and evidence was more believable.” Stringer, 897 P.2d at 1071 (citation omitted). Here, the

prosecutor erred by offering a personal opinion as to Dr. Oakwright’s credibility, yet Hanson

failed to make a contemporaneous objection to the prosecutor’s statements. Moreover, based

upon our review of the prosecutor’s entire closing argument, we conclude that the

prosecutor’s isolated comment concerning Dr. Oakwright’s credibility, in context, is not

prejudicial.

In summary, after considering Hanson’s arguments and reviewing the record, we agree

with the State that much of the error about which Hanson now complains was a part of his

own defense strategy to demonstrate that Aaron falsely accused Hanson of sexual abuse due

to Emmy’s antagonism and ill will toward Hanson. In fact, with the exception of Hanson’s

objection to Rowe’s rebuttal testimony, Hanson not only failed to object to this evidence at

trial, but in some instances actually solicited the evidence about which he now complains.

Consequently, we conclude that these alleged errors do not rise to the level of a manifest

miscarriage ofjustice, leave unsettled the question of the fundamental fairness of the trial or

proceedings, or compromise the integrity of the judicial system. See &$.ey, 9 15 P.2d at 2 15.

Therefore, we decline to invoke the plain error doctrine to review the issues that Hanson

raises for the first time on appeal.

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Additionally, Hanson has failed to prove he was prejudiced by either the challenged

testimony or the prosecutor’s comments during closing argument. Rather, we agree with the

State that these alleged errors were either trial strategy, proper rebuttal, or appropriate

comments contrasting evidence. Consequently, we conclude that the doctrine of cumulative

error also is not applicable in this case. See Campbell, 787 P.2d at 333.

Because we decline to apply the plain error doctrine, and because the doctrine of

cumulative error is not applicable, we decline to address Hanson’s allegations of error further.

2 .

counsel?

Was Hanson denied his constitutional right to effective assistance of trial

Despite Hanson’s failure to preserve the previously discussed issues for appeal and

despite our refusal to review the merits of his arguments on the basis of plain or cumulative

error, he asserts that we should also review these same issues within the context of his

ineffective assistance of counsel argument. We evaluate claims of ineffective assistance of

counsel using the two-part test as set forth in Strickland v. Washington (1984), 466 U.S. 668,

104 S.Ct. 2052,80 L.Ed.2d 674. State v. Boyer (1985), 215 Mont. 143, 147, 695 P.2d 829,

83 1. First, a defendant must demonstrate that counsel’s performance was so deficient that

it fell below the level of competency reasonably demanded of attorneys under the Sixth

Amendment. Second, a defendant must demonstrate that counsel’s deficient performance

was so prejudicial that he was denied a fair trial. Strickland, 466 U.S. at 687. The first prong

of the Strickland analysis is based upon an objective standard of reasonableness. Strickland,

466 U.S. at 688. Moreover, “cludicial scrutiny of counsel’s performance must be highly

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deferential.” Strickland, 466 U.S. at 689. Accordingly, the United States Supreme Court

warned against “second-guessing” counsel’s assistance:

A fair assessment of attorney performance requires that every effort be made

to eliminate the distorting effects ofhindsight, to reconstruct the circumstances

of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time. Because of the difficulties inherent in making the

evaluation, a court must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the circumstances, the

challenged action “might be considered sound trial strategy.” There are

countless ways to provide effective assistance in any given case. Even the best

criminal defense attorneys would not defend. a particular client in the same

way.

Strickland, 466 U.S. at 689 (citations omitted).

Hanson first argues that his counsel was ineffective because he did not object to

Aaron’s testimony and he failed to request a pretrial hearing to assess the reliability of

Aaron’s testimony to determine its admissibility as required by State v. Michaels (N.J. 1994),

642 A.2d 1372. Yet, as the State points out, Hanson’s counsel’s trial strategy was to

demonstrate that Aaron’s testimony was unreliable, which he attempted to do through the

testimony of Detective Lamb and Dr. Oakwright. Testing a witness’s credibility through the

presentation of other witnesses and cross-examination is a traditional and widely accepted

method. Furthermore, Hanson’s counsel had no duty to rely on Michaels, which is not the

law in Montana in any event.

Hanson next argues that his counsel was ineffective because he did not object to

Detective Lamb’s testimony or the testimony of Beatrice Rowe, Aaron’s therapist. Again,

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as previously discussed, Hanson’s counsel called Detective Lamb to the stand and he did so

in accordance with his trial strategy to show that Aaron’s testimony was unreliable because

Detective Lamb used suggestive or coercive interviewing techniques during her interview

with Aaron. Furthermore, as previously noted, Hanson’s counsel did in fact object to Rowe’s

rebuttal testimony.

Additionally, Hanson argues that his counsel was ineffective because he made no

objection to the attacks on Hanson’s character. Again, because the essence of the defense

strategy was to demonstrate that Aaron testified falsely against Hanson due to the bitter and

vindictive relationship between Emmy and Hanson, Hanson’s original counsel made no

objection. Finally, Hanson claims that his counsel was ineffective because his counsel failed

to object to the prosecutor’s closing remarks. We previously concluded that, in context, the

prosecutor was merely comparing and contrasting evidence in her closing arguments. While

the one reference to Dr. Oakwright’s honesty may have been improper, trial counsel’s failure

to object does not rise to the level of ineffective assistance of counsel.

While Hanson argues that he was denied his constitutional right to effective assistance

of counsel, we note that his complaints actually center on his disapproval of his original

counsel’s trial strategy. Under the circumstances, we will not second guess his counsel’s

assistance. See Strickland, 466 U.S. at 689. While Hanson’s trial counsel’s strategy was not

successful, we are not prepared to hold that as a matter of law it was ineffective for Sixth

Amendment purposes. Counsel’s strategy might well have prevailed with some other jury;

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it simply did not persuade the trial jury in this case. We conclude that Hanson has failed to

demonstrate that his trial counsel’s performance was so deficient that it fell below the level

of competency reasonably demanded of attorneys under the Sixth Amendment. See

Strickland, 466 U.S. at 687. Because we reach this conclusion, there is no need to address

the prejudice prong of the Strickland test. Accordingly, we hold that Hanson was not denied

his constitutional right to effective assistance of counsel.

In summary, we decline to address, under the plain error doctrine or under the

cumulative error doctrine, Hanson’s arguments that his trial was fundamentally unfair in

violation of his rights under the Sixth Amendment of the United States Constitution and

under Article II, Section 24 of the Montana Constitution. Additionally, we hold that Hanson

was not denied his constitutional right to effective assistance of trial counsel.

Affirmed.

We Concur:

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