Submitted on Briefs: May 15, 2013
APPEAL FROM: District Court of the Twelfth Judicial District, In and For the County of Hill, Cause No. DC 10-50 Honorable Laurie McKinnon, Presiding Judge
For Appellant:Wade Zolynski, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender; Helena, Montana
For Appellee:Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General; Helena, Montana
Gina Dahl, Hill County Attorney; Havre, Montana
BRIAN MORRIS Justice
¶1 Clarence Edward Champagne (Champagne) appeals his conviction from the Twelfth Judicial District, Hill County. We affirm in part, reverse in part, and remand.
¶2 We address the following issues on appeal:
¶3 Whether the District Court abused its discretion in denying Champagne's for-cause challenge of a prospective juror?
¶4 Whether Champagne's counsel provided ineffective assistance?
¶5 Whether the District Court abused its discretion in admitting the forensic interviewer's opinion testimony?
¶6 Whether the District Court properly admitted J.B.'s prior consistent statements?
¶7 Whether the District Court imposed an illegal sentence?
PROCEDURAL AND FACTUAL BACKGROUND
¶8 J.B. stayed at her grandmother's house one night in 2010. Nobody remembers the exact date. J.B. was ten years old at the time. J.B.'s grandmother, Ramona, previously had been married to Champagne. Champagne came to Ramona's house late that night. J .B. had known Champagne for most of her life. J.B. referred to him as "Papa."
¶9 J.B. was awakened the next morning by Champagne touching her inside her vagina. J.B. immediately told Ramona what had happened. Ramona asked Champagne about the incident. Champagne denied any inappropriate touching. Ramona told J.B. that Champagne probably just had given J.B. a hug. Ramona instructed J.B. not to tell her mother about the incident.
¶10 J.B. told her mother, Farrah Falcon (Falcon), about the incident several months later. Falcon alerted the police. The police initiated an investigation. J.B. talked with a forensic interviewer, Holly Matkin, about the incident. The State charged Champagne with felony sexual assault. The case proceeded to trial.
¶11 Prospective juror Pete Lamere (Lamere) replied during voir dire when asked by Champagne's counsel that he had "some reservations" about a defendant who did not testify. Lamere further admitted that he "probably" would become suspicious if a defendant chose not to testify. Champagne challenged Lamere for cause.
¶12 The District Court instructed Lamere on the presumption of innocence, the State's burden of proof, a defendant's right not to testify, and the idea that a jury should not draw any negative inference from the defendant's election not to testify. The State questioned Lamere. Lamere agreed with the State that many reasons existed why a person would not want to testify that were unrelated to trying to hide something. Lamere agreed that he would follow the law and that he would not draw any negative inferences. The District Court denied Champagne's ...