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: A~ril 28. 1978 Decided: 

# jbn - %, 

### 1978Mr. Justice Gene B. Daly delivered the Opinion of the Court:

Defendant appeals from thejudgment of conviction enteredby the District Court, Silver Bow County, aftera jury found him guilty of aggravated assault. 

### On November 16, 1976, TomMcKenzie, a welfare worker with the Department of Social and Rehabilitation Services of the Stateof Montana, went to the Head Start Program in Butte to follow up a report of child abuse. McKenzie spoke with Pat Sullivan, Head StartDirector, and observed Gina Houser,

a four year old girlwho had been beaten. That same day, November 16, 1976, McKenzie took Gina Houser toDr. Dennis McCarthy, who examined the child and concluded that her injurieshad been inflictedby another. The child's natural mother, Cheryl Houser Campbell, contacted the Head Start School at 

### 2:00 p.m. on November 16, 1976, toascertain why Gina had not returned on the schoolbus. The school advised the mother the welfare department had taken custody of Gina and three other children of Cheryl Houser Campbell. The mother told the welfare department that Gina had fallen from her tricycle. The welfare department, however, advised Cheryl Houser Campbell that ~ina's bruises were not caused by a fall, and directed the mother to the SilverBow County attorney. At 

### 3:00 p.m., November 16, 1976, Cheryl Houser Campbell went to the county attorney and stated that Gene Houser, her exhusband, had beaten Gina. Later that evening four of Cheryl Houser campbell's daughters, Gina and Rhonda Houser, and Janet and Kathy Campbell, were placed infoster careby Tom McKenzie.On the evening of the placement of the children in foster care, Tom McKenzie spoke by long distance telephone with Gene Houser. McKenzie verified that Gene Houser was inLos Angeles, California, on the day of the beating and thus could not have beaten the girls. The next day, November 

### 17, 1976, Cheryl Houser Campbell

was charged injustice courtwith giving false information to a police officer and endangering thewelfare of her children by her failure to seekmedical aid for them. The mother was placed in jail. She then told authorities that defendant, Merrill Campbell, had spanked the children on November 15, 1976, with a bed slat. The charges against the mother were laterdropped and

on December 

### 6, 1976, the State filed an Information charging defendant with the aggravated assault of Krista Flanigan, Cheryl Houser Campbell's fifthdaughter, and Gina Houser on November 15, 1976. The four minor children, includingGina, were immediately placed by thewelfare department inthe custody of Cheryl Houser Campbell. Krista Flanigan, age six, was placed ina Deer Lodge Montana, fosterhome and talked toher mother by telephone only

once during the sixmonths prior todefendant's trial. Krista identified defendant as the person who had beaten the girlswith

a wooden plunger handle, During the investigation Krista picked the handle from among three sticks the deputy county attorney showed her. Athis arraignment, defendant moved the court to order that defendant be allowed to submit to a polygraph test, No arrangements were made for a polygraph test, however.Defendant's trialcommenced on April 20, 

### 1977. During

the state's case, a wooden plunger handle was admitted as an exhibit, over defendant's objection. Also over defendant's objection, the court allowed two Head Startworkers and a police officer totestify to statements made by four year old Gina Houser. Atthe close of the state's case, defendant moved the court todismiss the Information or inthe alternative, to direct a verdict for defendant on the grounds that the state's evidencewas insufficient as a matter of law and upon the grounds that certainwitnesses' testimony was prejudicial to defendant. The motion was denied, thejury returned 

### a verdict of guilty and the districtjudge sentenced defendant to five years inthe state prison. Defendant raises seven issues inhis appeal from the District Court judgment: 

### 1. Did the court err in failing toorder 

### a polygraph test after defendant had requested one? 2. 

### Is the evidence sufficient to support the verdict? 

### 3. Did the court err inadmitting the wooden plunger handle intoevidence? 

### 4. Did the court err in allowing three witnesses to testify to statements made by four year old Gina Houser? 

### 5. Did the court err in limiting the testimony of a defense witness? 

### 6. Did the statecreatereversible errorwhen it asked

a rebuttalwitness for defendant's general reputation inthe community? 

### 7. Did the state improperly introduce evidence of other crimes committed by defendant?The districtjudge committed reversible errorwhen he allowed the two Head Start teachers and the police officer to testify, over defendant's objection, to statements made by four year old Gina Houser tothe teachers. The alleged statement of Gina that defendant had beaten her and her sisterwith a wooden plunger handle went to the very factswhich the state

was trying toprove, was a statement offered toprove the truth of the matter asserted and was therefore hearsay. The State concedes that the statement was not admissiblewithin the res gestae rulebecause the statement, made atleast 24 hours after the beating, "

# *

# ** was not made contemporaneously with the act complained of nor does it appear tohave been made ina state of excitement or shock.

# **

# * Narratives of a past transaction do not come within the res gestae rule." Statev. Shambo, (1958), 133Mont. 305, 309, 310, 322 P.2d 657. It 

### ispossible that Gina Houser, although only four years old atthe time of trial, was competent totestify. Section 93-701-3(2), R.C.M. 1947, the statute ineffect atthe time of defendant's April 20, 1977, trial, excluded from the general rule that allpersons arequalified to testify: "Children under ten years of age who appear incapable of receivingjust impressions of the facts respecting which they are examined, or of relating them truly." A four year old witness 

### isnot necessarily too young toperceive correct impressions of the factshe observed, toremember those impressions, to communicate what he saw, and tounderstand his duty totellthe truth. Other courts have held that children four years old oryounger were competent to testify. Love v. State, (1974), 64 Wisc.2d 432, 219 N.W.2d 294, 298; Fields v. State, (Tex.Crim.App. 1973), 500 S.W.2d 500, 502; Hillv. Skinner, (1947), 81OhioApp. 375, 79 N.E.2d 787, 789. The question of whetherthe child 

### is competent to testify isa matter addressed to the sound discretionof the trialjudge. Statev. Shambo, supra. In this case, 

### ifGina Houser had been qualified as a witness, had testified that defendant had beaten her and her sister, and then had her credibility impeached by defense suggestions that since thebeating she had been improperly influenced, the statemight well rehabilitateher by introducing the alleged statements to the Head Startworkers as prior consistent statements. Allen v. Moore, (1975), 167Mont. 330, 338, 538 P.2d 1352. Gina, however, was not a witness, nor was she even present atthe trial. The testimony concerning Gina's statements was not offered to corroborate the testimony of Gina, who was never a witness, but was introduced by the state to corroborate the testimony of sixyear old Krista Flanigan. The testimony as to Gina's statements corroborated and strengthened Krista Flanigan's testimony and was so damaging to defendant's case thatwe arenot convinced of the state's contention that the admission of the testimony was harmless. Upon remand, the District Judge shall examine the child's competency to testify as it relates to the time of the new trial, and not to the time when the crime occurred nor to the time of the previous trial. Statev. Gamer, (1977), 116Ariz. 443, 569 P.2d 1341, 1344. The child may testify if the judge correctly determines her tobe competent. If thejudge rules that Gina 

### is not competent to testify, testimony concerning statements she made toothers implicating defendant inthe crime are also inadmissible. Coleman v. Higgins, (1960), 137Mont. 222, 226, 351 P.2d 901.

### Although this cause is reversed and remanded on the basis of this issue alone,we shalldiscuss two other issues raisedby 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), 62Wis- 2d 730, 216 N.W. 2d 

### 8,wherein theWisconsin Supreme Court set forth criteria for admissibility of polygraph evidence. TheMontana rule is that the results ofpolygraph examinations arenot admissible as evidence in a criminal trial. State

v. Hollywood, (1960), 138Mont. 561, 358 P.2d 437;State v. Cor,

(1964), 144Mont. 323, 396 P.2d 86. We save the issue of whether this Court shall adopt a Stanislawskior similar test for admissibilityof polygraph testimony for a case inwhich 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 clearlywithin prosecutorial discretion; that the test requires a prior written stipulationby allparties, 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 prosecutionnor 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 ismade connecting it with the accused or the crime. Statev. Best, (1972), 161Mont. 20, 25, 503 P.2d 997. Krista Flanigan testified that she and her sisterwere beatenby defendant and that the plunger handle wastheweapon defendant used inthebeating. OfficerMiller testified that he had found the plunger handle under the children's bed, had placed his initialon thehandle and had stored thehandle inthe county attorney's office. The officer testified thehandle was inthe same condition attrial, as it

was on the day he received it. Defendant asserts that, because Cheryl Houser Campbell emphatically asserted that a bed slat and not a plunger handle was theweapon used inthe beating, the plunger handle should not have been admitted intoevidence. Because the statepresented sufficient evidence connecting the weapon with the crime and establishing the chain of custody, the contrary testimony of Cheryl Houser Campbell went only to weight and not to admissibility. The judgment of the District Court 

### isreversed and this

cause 

### isremanded for a new trial.

Austice We Concur:

-, Chief Justice