State v. Pingree, 2015 MT 187 (June 30, 2015) (McGrath, C.J.; Baker, J., dissenting) (4-2, rev’d)
Issue: (1) Whether the district court erred in admitting testimony given by Pingree’s wife at an earlier civil order of protection, and (2) whether the error was harmless.
Short Answer: (1) Yes, and (2) no.
Facts: In September 2012, the Ravalli County Attorney charged Pingree with felony assault with a weapon and misdemeanor partner/family-member assault, alleging Pingree pointed a gun at his wife and fired it to the left of her head. In October 2012, Pingree’s wife, Caroline, sought an order of protection in Butte, where the parties’ dissolution had been filed. Pingree was at the hearing, although without counsel. He testified but did not contest the order. Pingree did not cross-examine Caroline.
Pingree pled not guilty to the criminal charges and the case went to jury trial. Pingree contended his finger slipped when he was loading the weapon, and he did not intend to shoot at Caroline. Although Caroline was subpoenaed by the state, she was not served and did not appear at trial. Instead, over the objection of defense counsel, the prosecutor read portions of Caroline’s testimony at the civil order of protection hearing, in which she testified to violence by Pingree. The transcript was not entered as an exhibit, but was read into evidence in Q&A format.
The district court held that Caroline’s hearsay statements from the hearing were admissible under Rule 804(b)(1)(B). It noted that her statements were made under oath, and Pingree had an opportunity to cross-examine her, although he did not do so. During deliberations, the jury asked to review the transcript from the order of protection hearing. The district court denied the request, telling the jury it could request specific information from the hearing but not the entire transcript.
Procedural Posture & Holding: The jury found Pingree guilty of both offenses. He was sentenced to DOC for 15 years on the assault with a weapon charge, with 10 suspended, and six months with five suspended on the PFMA charge, to run concurrently. Pingree appeals, and the Supreme Court reverses.
Reasoning: (1) Under 804(b)(1)(B), before a prosecutor may introduce testimony of a now-unavailable witness, the defendant must have had, at the time the testimony was given, both an opportunity to examine the declarant and a similar motive to develop the declarant’s testimony. Here, Pingree had an opportunity to cross-examine Caroline at the previous hearing, but did not have a similar motive to developer her testimony. An order of protection is a civil proceeding, and a protective order serves only to prevent further conflict between the parties. The potential consequences of a criminal action are severe, and provide very different motivation for developing testimony through cross-examination. The district court erred in finding 804(b)(1)(B) was satisfied.
(2) The introduction of Caroline’s testimony calls into question the fundamental fairness of the proceeding, and is not harmless error.
Justice Baker’s Dissent (joined by Justice Rice): Justice Baker concurs with the majority’s holding that Caroline’s testimony was inadmissible under 804(b)(1)(B), but would find the error harmless and affirm the conviction.