495 P.3d 54
Mont.2021Background
- Victim (T.C.) was a 13-year-old student at the Montana School for the Deaf and Blind who is deaf and developmentally delayed; she disclosed a sexual assault by a man she called “Ricky.”
- Within 24–48 hours T.C. told school staff, an officer, a SANE nurse, and underwent a recorded DPHHS forensic interview; physical exam showed vaginal injury; DNA from underwear was inconclusive and excluded Tome.
- Tome was charged with sexual intercourse without consent; he denied the offense and later made jailhouse statements consistent with the victim’s account.
- Tome sought a pretrial deposition of T.C.; the district court denied it, finding her testimony would be available at trial.
- At a first trial the court found T.C. incompetent to testify and declared a mistrial; the State sought to admit out-of-court statements under Montana hearsay statutes at a second trial.
- At the second trial the court admitted testimony from three witnesses recounting T.C.’s statements and a recorded forensic interview; T.C. did not testify; Tome was convicted and appealed on Confrontation Clause grounds.
Issues
| Issue | State's Argument | Tome's Argument | Held |
|---|---|---|---|
| Admission of T.C.’s out-of-court statements (officer, SANE, forensic interviewer) | Statements were nontestimonial or admissible under state hearsay exceptions and proper notice was given | Statements were testimonial; Tome had no prior opportunity to cross-examine T.C., so admission violated the Sixth Amendment | Court held the officer, SANE nurse, and forensic interview statements were testimonial and their admission without prior cross-examination violated the Confrontation Clause; reversed and remanded for new trial |
| Preservation of Confrontation Clause claim on appeal | Objection at trial was too general to preserve a Crawford-based challenge | Counsel repeatedly objected on confrontation grounds and relied on earlier denied deposition; claim was preserved | Court found the confrontation objection was sufficiently preserved for appeal |
| Use of Montana hearsay statutes (§46-16-220/221) to admit victim statements | Statutory criteria (trustworthiness, materiality, notice) were met and permitted admission | Constitutional Crawford rule controls; testimonial statements cannot be admitted merely by statutory exceptions without prior cross-examination | Court held that when statements are testimonial Crawford controls and statutory exceptions cannot rescue their admission absent prior cross-examination |
| Harmless-error assertion | Any error was harmless given other evidence (e.g., jailhouse statements) | Admission was highly prejudicial because the testimonial evidence and recording were powerful and went to elements | Court concluded the Confrontation Clause error was not harmless given the qualitative weight of the testimonial evidence |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (testimonial hearsay inadmissible absent declarant unavailability and prior opportunity for cross-examination)
- Davis v. Washington, 547 U.S. 813 (2006) (adopted the "primary-purpose" test to distinguish testimonial from nontestimonial statements)
- Michigan v. Bryant, 562 U.S. 344 (2011) (primary-purpose inquiry requires consideration of all relevant circumstances)
- Ohio v. Clark, 576 U.S. 237 (2015) (statements to non-law-enforcement caretakers may be nontestimonial depending on context, declarant age, and primary purpose)
- Idaho v. Wright, 497 U.S. 805 (1990) (pre-Crawford discussion of indicia of reliability for hearsay admissibility)
- Ohio v. Roberts, 448 U.S. 56 (1980) (reliability-based hearsay test later rejected by Crawford)