State v. Champagne, 2013 MT 190 (July 16, 2013) (5-0) (Morris, J.)
Issue: (1) Whether the district court properly denied Champagne’s for-cause challenge of a prospective juror; (2) whether Champagne’s counsel provided ineffective assistance; (3) whether the district court properly admitted the forensic interviewer’s testimony; (4) whether the district court properly admitted JB’s prior consistent statements; and (5) whether the district court imposed an illegal sentence.
Short Answer: (1) Yes; (2) the record does not support this claim on direct appeal; it should be brought in a post-conviction proceeding; (3) yes; (4) yes; and (5) no, but future restitution has to be in a specific amount, and is remanded for correction of this issue.
Affirmed in part, reversed in part, and remanded
Facts: JB stayed at her grandmother Ramona’s house one night in 2010, when she was 10. Ramona had previously been married to Champagne, and Champagne came to the house that night. JB had known Champagne most of her life, and called him Papa.
JB was awakened the next morning by Champagne touching inside her vagina. JB immediately told Ramona, who asked Champagne. Champagne denied it. Ramona told JB it was probably just a hug, and not to tell her mother.
Several months later, JB told her mother, who called the police. The police investigated, including a conversation between JB and a forensic interviewer. The state charged Champagne with felony sexual assault.
During voir dire, prospective juror Pete Lamere said he had “some reservations” about a defendant who did not testify, and that he would probably be suspicious. Champagne challenged Lamere for cause. The district court instructed Lamere on the presumption of innoncence and burden of proof, and the state questioned him. Lamere agreed he would follow the law and not draw any negative inferences. the district court denied Champagne’s motion to remove Lamere for cause, and Champagne used a peremptory challenge to remove him.
Another prospective juror, Andrew Herdina, filed an affidavit for excusal requesting permanent exclusion from jury service on the basis of his being a federal law enforcement who felt he “may biased in a criminal trial.” The clerk of court advised Herdina to discuss his potential bias with the lawyers in the case. The record does not reflect whether Champagne’s defense counsel knew of Herdina’s affidavit. Herdina did not raise the issue during voir dire, and Champagne’s counsel did not question him about his job or possible bias. Herdina served on Champagne’s jury.
Chamapgne alleged JB made up the story, and that her allegations arose from a family feud. He alternatively claimed that JB was protecting her actual abuser by blaming Champagne.
The forensic interviewer was not qualified as an expert, but was allowed to testify that her training included whether a witness had been coached. She was allowed to testify that she had seen no indication JB had been coached.
Procedural Posture & Holding: The jury convicted Champagne of felony sexual assault. The district court sentenced him to 40 years in the state prison, and imposed a restitution obligation of $1,583 with an ongoing obligation in case JB needs additional treatment. The judgment also included several recommendation for the Department of Corrections, including that Champagne be required to pay $3,478 for legal fees and expenses, plus the costs of jury service, prosecution and pretrial, probation, or community service supervision. Champagne appeals, and the Supreme Court affirms in part, reverses in part, and remands.
Reasoning: (1) The district court determined that Lamere’s responses demonstrated his ability to remain impartial. Lamere admitted he was unfamiliar with the law and would follow the law as instructed. Denyin Champagne’s motion to remove Lamere for cause was not an abuse of discretion.
(2) Champagne contends that his counsel’s failure to question Herdina about his affidvait constitutes ineffective assistance of counsel. The record does not explain why Champagne’s counsel did not so inquire, or even whether counsel knew of the existence of the affidavit. The Court cannot say that “no plausible justification exists” for the lack of questioning. A post-conviction proceeding is the proper venue for this claim rather than direct appeal.
(3) Champagne argues the district court improperly allowed Matkin, the forensic interviewer, to offer an expert opinion. The state argues Matkin offered a lay opinion. A lay witness’s training can provide a sufficient foundation for them to provide an opinion. That foundation was laid here, and Matkin was properly allowed to testify about whether JB appeared to have been coached.
(4) The parties agree Champagne opened the door to prior consistent evidence testimony when tried to impeach JB by claiming she possessed a motive to fabricate her story or that she was improperly influenced. The district court properly admitted both Matkin’s testimony and JB’s mother’s testimony of JB’s description what happened to her under M.R. Evid. 801(d)(1)(B).
(5) The record does not support Champagne’s claim that the district court imposed a harsh sentence based on a negative inference from Champagne’s denial of guilt. However, the imposition of future restitution is allowed only if it is in a specified amount. The Court remands to the district court to set a specific amount of restitution for future costs.