                                                                                                 04/28/2020


                                           DA 17-0143
                                                                                            Case Number: DA 17-0143

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2020 MT 102N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

EDWARD LEVI KEYES,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DC 15-0887
                        Honorable Michael G. Moses, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Appellate Defender, Kristina L. Neal, Assistant Appellate
                        Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
                        Assistant Attorney General, Helena, Montana

                        Scott D. Twito, Yellowstone County Attorney, Mary Leffers Barry,
                        Deputy County Attorney, Billings, Montana



                                                     Submitted on Briefs: February 12, 2020

                                                                Decided: April 28, 2020


Filed:

                                  cir-641.—if
                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Edward Levi Keyes (“Keyes”) appeals from an order of the Thirteenth Judicial

District Court, Yellowstone County, denying his motion for a new trial and his motion to

compel testimony. A jury found Keyes guilty of three counts of Incest and one count of

Solicitation of Incest. Keyes argues he was deprived of a fair and impartial trial because

during trial a foster parent improperly and intentionally influenced a child’s testimony.

He also argues the District Court abused its discretion in denying his motion to compel

testimony of the child’s therapist. Finally, Keyes argues the District Court exceeded its

statutory authority by imposing a court technology fee per count. We affirm the District

Court’s denial of Keyes’ motions and reverse the District Court’s decision regarding the

technology fee.

¶3     Prior to trial, the State filed a motion in limine asking the District Court to prohibit

the child’s therapist, Sally Grunst (“Dr. Grunst”), from testifying at trial. Dr. Grunst

began working with the victim after she had disclosed Keyes’ sexual abuse and was

removed from her parents’ care. Keyes had listed Dr. Grunst as a trial witness, which

prompted the State’s motion. The State argued Dr. Grunst should not be compelled to


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testify about matters discussed in that it is privileged material under the mental health

professional-client privilege afforded by § 26-1-807, MCA, and that Keyes had been

provided a copy of Dr. Grunst’s treatment notes during discovery. The District Court

denied Keyes’ motion to compel Dr. Grunst’s testimony citing the therapist-client

privilege in § 26-1-807, MCA, noting that there had not been a waiver of the privilege.

¶4     On July 1, 2016, after a five-day trial, the jury found Keyes guilty of three counts

of Incest pursuant to § 45-5-507, MCA, and one count of Solicitation of Incest pursuant

to § 45-4-101, MCA.

¶5     On August 1, 2016, Keyes filed a motion for new trial. Keyes argued that on the

second day of trial, E.R., one of the child victim witnesses who testified, was influenced

by a spectator that was in the courtroom. At the beginning of E.R.’s testimony, she was

struggling to testify and was visibly emotionally distraught. The Court, sua sponte,

suggested a ten-minute recess to allow E.R. to gather herself. After the recess, E.R.

returned to the witness stand. The child’s foster mother (“F.M.”) stood with her arms

crossed, leaning against a partial wall separating the gallery from the bar, for all of the

child’s testimony. Keyes argued that it was inherently prejudicial for a child on the

witness stand to be visibly influenced by a supporter in the spectator section, and that he

was denied his right to a fair trial and therefore due process.

¶6     On October 27, 2016, the District Court held a hearing on Keyes’ motion for new

trial. Keyes asserted that F.M. influenced E.R.’s testimony during the trial by standing

for the entire time E.R. was testifying and making many movements, head moves, smiles,

and grimaces. Keyes’ only witness at the evidentiary hearing on his motion for new trial,

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a paralegal for the defense team, testified to her personal interpretations and observations

about E.R. and F.M. The District Court reviewed the video feed of the courtroom camera

pointing directly at the gallery, noting it provided the “clearest evidence of what unfolded

during E.A.R.’s June 28, 2016, testimony.”

¶7     On October 28, 2016, the District Court denied Keyes’ motion for new trial. The

District Court concluded the video evidence showed that F.M.’s conduct was nowhere

near serious enough that it caused a manifest miscarriage of justice, left unsettled

fundamental fairness of the trial, or compromised the integrity of the judicial system,

citing State v. Griffin, 2016 MT 231, ¶ 12, 385 Mont. 1, 386 P.3d 559.

¶8     We review a district court’s denial of a motion for new trial made under

§ 46-16-702, MCA, for an abuse of discretion. State v. Reinert, 2018 MT 111, ¶ 12, 391

Mont. 263, 419 P.3d 662. Regarding the admission of evidence at trial, a district court’s

evidentiary rulings are reviewed by for an abuse of discretion. Reinert, ¶ 13. A district

court’s conclusions of law are reviewed for correctness. State v. Duffy, 2000 MT 186,

¶ 18, 300 Mont. 381, 6 P.3d 453.

¶9     The United States and Montana Constitutions protect a defendant’s right to a fair

trial, and the district court bears the duty to ensure that the defendant receives a fair trial.

Griffin, ¶ 9. Montana law provides that “[f]ollowing a verdict of guilty, the court may

grant the defendant a new trial if required in the interest of justice.”                Section

46-16-702(1), MCA. A court may deny the motion or grant a new trial after the hearing,

if justified by law and the weight of the evidence. Section 46-16-702(3), MCA. Absent a

showing of manifest abuse of discretion, a district court’s decision will be affirmed. State

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v. Gambrel, 246 Mont. 84, 91, 803 P.2d 1071, 1076 (1990). We will only disturb a

district court’s denial of a motion for a new trial where the movant shows, by evidence

that is clear, convincing, and practically free from doubt, the error of the trial court’s

ruling. Mason v. Ditzel, 255 Mont. 364, 376, 842 P.2d 707, 725 (1992).

¶10    Keyes has failed to show the District Court’s failure to grant the motion was a

manifest abuse of discretion. We previously held in a similar case involving an alleged

witness coaching issue that the district court is in the best position to determine whether

coaching of a witness has occurred, and if so, has broad discretion to determine whether

such coaching has been prejudicial to either party. State v. Rendon, 273 Mont. 303, 306,

903 P. 2d 183, 185 (1995). The District Court reviewed the video evidence of the trial

that was pointed directly at the gallery. After its review, it found that it “plainly show[ed]

nothing out of the ordinary,” and that while “F.M. does indeed stand the entirety of E.R.’s

testimony . . . there is nothing overtly demonstrative about her.”

¶11    The District Court did not abuse its discretion by denying Keyes’ motion to

compel testimony of E.R.’s therapist, Dr. Grunst. Keyes argued in his motion to compel

testimony that Dr. Grunst’s record could contain exculpatory information.1



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      Keyes argues, for the first time on appeal, that the District Court erred by denying his
motion to compel testimony from Dr. Grunst without first inspecting her record in camera for
exculpatory information, and then balancing whether E.R.’s right to confidentiality outweighed
Keyes’ fundamental right to a fair trial. Keyes now requests this Court to remand this issue to
the District Court and require it to conduct an in-camera inspection of Dr. Grunst’s proposed
testimony and records and, “if exculpatory,” make a finding whether Keyes’ fundamental right to
a fair trial outweighs E.R.’s right to confidentiality. We have consistently held that issues
presented for the first time on appeal are “untimely and we will not consider them,” since it is
“fundamentally unfair to fault the trial court for failing to rule on an issue it was never given the
opportunity to consider.” State v. LaFreniere, 2008 MT 99, ¶ 11, 342 Mont. 309, 180 P.3d 1161.
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¶12   Keyes’ argument lacks merit. A district court has a “duty to conduct an in-camera

review to ascertain whether there [is] any exculpatory evidence in the files,” when a

“defendant requests a crime victim’s confidential records.” State v. Stutzman, 2017 MT

169, ¶ 29, 388 Mont. 133, 398 P.3d 265 (emphasis added). Since Keyes already had

access to Dr. Grunst’s notes, he had the burden to make an offer of proof showing that

Dr. Grunst’s notes and her testimony contained exculpatory evidence. See M. R. Evid.

103(a)(2); In re O.A.W., 2007 MT 13, ¶ 51, 353 Mont. 304, 153 P.3d 6; State v. Miller,

231 Mont. 497, 508, 757 P.2d 1275, 1282 (1988) (holding “[a]n offer of proof should be

specific as to the facts to be proven”). Keyes asserted that the exculpatory evidence was

that E.R., in fifteen months of therapy with Dr. Grunst, did not make disclosures against

Keyes. However, exculpatory information is material that, if disclosed, would have

“affected the outcome of the proceeding.” Stutzman, ¶ 31. This disclosure “neither

denies nor confirms sexual abuse” and does not amount to a sufficient offer of proof

under M. R. Evid. 103(a)(2). Stutzman, ¶ 31. The District Court did not abuse its

discretion in denying Keyes’ motion to compel testimony of Dr. Grunst.

¶15   Regarding the District Court’s assessment of the technology user fee, both parties

agree on this point. Accordingly, we instruct the District Court on remand to strike the

$10 per count user surcharge in the sentencing order and impose only one $10 user

surcharge. Section 3-1-317(1)(a), MCA; State v. Pope, 2017 MT 12, ¶¶ 31-32, 386

Mont. 194, 387 P.3d 870.

¶16   We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. This appeal

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presents no constitutional issues, no issues of first impression, and does not establish new

precedent or modify existing precedent.

¶17    Affirmed in part, reversed in part, and remanded to the District Court to revise the

written terms of the sentence consistent with this Opinion.


                                                 /S/ MIKE McGRATH



We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




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