                                                                                              July 16 2013


                                           DA 12-0159

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 190



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

CLARENCE EDWARD CHAMPAGNE,

              Defendant and Appellant.



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


COUNSEL OF RECORD:

                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


                                                     Submitted on Briefs: May 15, 2013
                                                                Decided: July 16, 2013



Filed:

                        __________________________________________
                                          Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶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.



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¶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 motion to remove Lamere for cause. Champagne used a peremptory

challenge to remove Lamere. Champagne exhausted all of his peremptory challenges.

¶13    Another prospective juror, Andrew Herdina (Herdina), filed an Affidavit for Excusal

with the clerk of court that requested permanent exclusion from jury service. Herdina stated,

“I am a federal law enforcement officer and feel I may be biased in a criminal trial.” The

clerk of court advised Herdina to discuss his potential bias with the lawyers in the case to

which he would be assigned. The record does not reflect whether Champagne’s defense
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counsel had knowledge of Herdina’s affidavit. Herdina did not raise the issue of his

potential bias during voir dire. Champagne’s defense counsel did not question Herdina about

his law enforcement background or his claimed bias. Herdina served on Champagne’s jury.

¶14    Champagne alleged at trial that J.B. had made up the story. Champagne claimed that

J.B.’s accusations against Champagne arose from a family feud. Champagne alternatively

claimed that J.B. sought to protect her actual abuser by blaming Champagne.

¶15    Matkin testified for the State. The State failed to qualify Matkin as an expert. The

District Court nevertheless permitted Matkin to testify that her training as a forensic

interviewer included whether a witness had been coached. The District Court further

permitted Matkin to testify that she had seen no indications that J.B. had been coached.

Matkin and J.B.’s mother, Falcon, also repeated J.B.’s earlier statements to them regarding

what Champagne had done to her. The jury convicted Champagne of felony sexual assault.

¶16    The District Court imposed a sentence of 40 years at the Montana State Prison. The

District Court imposed a restitution obligation in an initial amount of $1,583, with an

ongoing obligation to the extent that J.B. requires additional or ongoing treatment. The

District Court’s judgment enumerated several recommendations for the Department of

Corrections. These recommendations included that Champagne be required to pay $3,478.09

for legal fees and expenses, plus the costs of jury service, prosecution and pretrial, probation,

or community service supervision.

                                  STANDARD OF REVIEW



                                               4
¶17    We review for abuse of discretion a district court’s denial of a challenge for cause of a

prospective juror. State v. Jay, 2013 MT 79, ¶ 15, 369 Mont. 332, 298 P.3d 396.             We

review de novo a claim of ineffective assistance of counsel. State v. Upshaw, 2006 MT 341,

¶ 13, 335 Mont. 162, 153 P.3d 579. We review for abuse of discretion rulings on the

admissibility of evidence, including oral testimony. State v. Henderson, 2005 MT 333, ¶ 8,

330 Mont. 34, 125 P.3d 1132. We review for legality a sentence involving incarceration of a

year or more. State v. Heafner, 2010 MT 87, ¶ 1, 356 Mont. 128, 231 P.3d 1087.

                                       DISCUSSION

¶18 Whether the District Court abused its discretion in denying Champagne’s for-cause
challenge of a prospective juror?

¶19    A potential juror may be removed for cause if he possesses a state of mind that would

prevent him from acting with entire impartiality and without prejudice to the substantial

rights of either party. Section 46-16-115(2)(j), MCA; Jay, ¶ 19. A court must look at the

totality of the circumstances of the potential juror’s voir dire examination. Jay, ¶ 19. A

court gives more weight to a prospective juror’s “spontaneous statements” than to “coaxed

recantations” elicited by counsel. Jay, ¶ 19.

¶20    A juror should not be removed merely because he voices a concern about being

impartial. Every person comes to jury duty with preconceptions. Jay, ¶ 20. It falls within

the discretion of the district court to decide whether a juror will be able to be impartial when

a juror makes comments that suggest a fixed opinion, but later says he can set that opinion

aside and follow the law. Jay, ¶ 20.


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¶21    We reversed the district court in State v. Freshment, 2002 MT 61, 309 Mont. 154, 43

P.3d 968, for failing to dismiss two jurors for cause. The State charged Freshment with two

counts of sexual intercourse without consent that involved two girls under age 16. The law

provided that if Freshment reasonably had believed that the girls were 16 years old, the jury

should acquit him of the charges. Defense counsel asked the potential jurors whether they

could acquit Freshment if he had reasonably believed that the 15-year-old girls were actually

16 years old.

¶22    Juror Paula Porter admitted that she would “lean towards not following the law” if the

law required acquittal under those circumstances. Porter also admitted that she “really

couldn’t” acquit under any circumstances. Freshment, ¶ 8. Juror James Hansen similarly

stated that he did not know if he would acquit Freshment even if Freshment reasonably had

believed that the girls were 16 years old. Freshment, ¶ 9. Both jurors stated an actual bias

when they testified that they could not follow the law and acquit Freshment even if they

found that Freshment reasonably had believed that the victims were 16 years old.

Freshment, ¶ 16.

¶23    Champagne challenged potential juror Lamere for cause. Lamere had responded

“yes” to a jury questionnaire that asked whether he preferred that a person charged with a

crime prove his innocence. Lamere stated during voir dire that he would have reservations

about a defendant not testifying. Defense counsel asked Lamere, “do you think if the

Defendant didn’t testify and chose not to, that suspicion arises? Do you think that maybe



                                             6
that could happen?” Lamere responded, “[p]robably, yeah.” Champagne moved to dismiss

Lamere for cause.

¶24    The District Court responded to this motion by instructing Lamere on the law.

       [T]here is a presumption of innocence and the State has a burden of proving their case
       beyond a reasonable doubt. Part of that burden means that the Defendant does not
       have to testify. And if the Defendant does not testify I will instruct the jury that they
       are not to make any presumption or inference from that failure to testify.
       You have to decide whether the case has been proven based on the evidence that has
       been presented and not draw any negative inference from the Defendant’s failure to
       testify. That is the law. Now, with that said, would you be able to follow the law,
       sir?

Lamere responded, “yes, ma’am.” The District Court asked Lamere, “[a]nd you could

follow the law and not draw any inference as to the Defendant’s election not to testify?”

Lamere responded, “I have never sat [on] a jury like that before, so I guess, you know, I’m

not sure what to say. But I will follow the law, you know, not that I would go against the

law. I don’t understand a lot about the law, I guess.”

¶25    The State asked Lamere whether he understood the presumption of innocence and a

defendant’s right not to testify. Lamere responded that he understood. Lamere also agreed

with the State that there could be many reasons, unrelated to a person’s guilt, that a person

may choose not to testify. The District Court denied Champagne’s motion to dismiss

Lamere for cause.

¶26    The District Court possesses the ability to “look into the eyes of the juror in question”

and to consider his responses in the context of the courtroom. Jay, ¶ 20. Lamere made

comments to suggest that he would prefer that a defendant prove his innocence and that he


                                               7
may draw a negative inference if a defendant chose not to testify. The District Court

explained the presumption of innocence to Lamere and a defendant’s right not to testify.

Unlike the jurors in Freshment, who admitted that they may be unable to follow the law,

Lamere readily admitted that he had been unfamiliar with the trial process and that he would

follow the law as instructed by the court. See Freshment, ¶¶ 8-9. The District Court

determined that Lamere’s responses demonstrated his ability to remain impartial. We cannot

say that the District Court abused its discretion under these circumstances.

¶27    Whether Champagne’s counsel provided ineffective assistance?

¶28    Champagne argues that his trial counsel’s failure to question Herdina about Herdina’s

affidavit constitutes ineffective assistance of counsel. Herdina stated in his affidavit that his

employment as a law enforcement officer may affect his ability to remain impartial in a

criminal case.

¶29    We first must determine whether Champagne properly presents allegations of

ineffective assistance of counsel before this Court on direct appeal. Upshaw, ¶ 33; § 46-21-

105(2), MCA. We look to whether the record contains an answer as to “why” counsel took,

or failed to take, action in providing a defense. Upshaw, ¶ 33. Post-conviction proceedings

represent the appropriate avenue for relief if the record does not fully explain “why” counsel

acted or failed to act. Upshaw, ¶ 33. An exception to the requirement for a record-based

answer arises when “no plausible justification” exists to counter a claim of ineffective

assistance on appeal. Upshaw, ¶ 34.



                                               8
¶30    The record provides no explanation as to “why” Champagne’s counsel failed to

inquire about Herdina’s affidavit. Champagne argues that “no plausible justification” exists

for this oversight. Upshaw, ¶ 34. The record does not establish whether Champagne’s

counsel even knew of the existence of Herdina’s affidavit. Herdina did not mention any

potential bias during voir dire. In fact, Herdina stated during voir dire that he felt that he

could be fair to both the State and to Champagne.

¶31    Champagne’s counsel’s possible lack of knowledge regarding the affidavit creates a

potential plausible justification for Champagne’s counsel’s failure to ask Herdina about his

employment related bias. See Upshaw, ¶ 34. Further, Herdina explicitly stated during voir

dire that he was not biased. We cannot say that “no plausible justification” exists for

Champagne’s counsel not to have questioned Herdina regarding his affidavit. See Upshaw, ¶

34. A post-conviction proceeding represents the appropriate avenue for Champagne to bring

his ineffective assistance of counsel claim.

¶32 Whether the District Court abused its discretion in admitting the forensic
interviewer’s opinion testimony?

¶33    Champagne argues that the District Court improperly allowed Matkin to offer an

expert opinion although she was not qualified as an expert. The State argues that Matkin

provided a lay opinion, rather than an expert opinion, that the District Court properly

admitted under M. R. Evid. 701.

¶34    Champagne implied during cross-examination that J.B.’s testimony may have been

coached. Matkin testified after J.B. Matkin testified that she had received training to


                                               9
recognize whether a victim had been coached. The State asked Matkin, “[d]id you observe

any indications of coaching in [J.B.’s] interview?” The District Court overruled

Champagne’s objection. Matkin responded, “[n]o, I did not.”

¶35    A lay witness may testify to opinions or inferences that rationally relate to the

perception of that witness and are helpful to a clear understanding of the witness’s testimony

or the determination of a fact in issue. M. R. Evid. 701. A witness’s training can provide a

sufficient foundation for them to provide lay opinion testimony. For instance, in State v.

Frasure, 2004 MT 305, ¶¶ 17-18, 323 Mont. 479, 100 P.3d 1013, we recognized that a police

officer may testify as a lay witness to matters to which he has extensive training and

experience. The police officer’s training and experience in Frasure provided a sufficient

foundation for the police officer to testify as to his lay opinion that the criminal defendant

possessed drugs with the intent to sell the drugs. Frasure, ¶¶ 17-18.

¶36    The State elicited testimony from Matkin to demonstrate that Matkin had training to

identify whether a victim had been coached. The State asked Matkin whether she had seen

any indication that J.B. had been coached. The District Court properly allowed Matkin to

testify about a matter to which she had training and experience: whether a victim had been

coached. See Frasure, ¶¶ 17-18.

¶37    Whether the District Court properly admitted J.B.’s prior consistent statements?

¶38    Champagne further argues that the District Court improperly allowed Matkin and

Falcon to testify about J.B.’s prior consistent statements. Montana Rule of Evidence

801(d)(1) provides that a party may admit a declarant’s prior consistent statement if the party
                                              10
offers it to rebut an express or implied charge that the declarant had fabricated her testimony

or had acted from an improper influence or motive in testifying.

¶39    Four requirements must be met to admit a statement as a prior consistent statement.

State v. McOmber, 2007 MT 340, ¶ 13, 340 Mont. 262, 173 P.3d 690. First, the declarant

must have testified at the trial. McOmber, ¶ 13. Second, the declarant must have been

subject to cross-examination concerning her statement. McOmber, ¶ 13. Third, the prior

statements to which the witness testifies must be consistent with the declarant’s testimony at

trial. McOmber, ¶ 13. Finally, the prior statement must rebut an express or implied charge

of subsequent fabrication or subsequent improper influence or motive. McOmber, ¶ 13. In

order to rebut a charge of subsequent fabrication or subsequent improper influence, the

consistent statement must have been made before the motivation to fabricate a story arose, or

before the improper influence occurred. McOmber, ¶ 15.

¶40    The parties agree that J.B. testified at trial and that Champagne subjected J.B. to

cross-examination. The parties also agree that Falcon’s and Matkin’s testimony of J.B.’s

prior statements comported with the testimony that J.B. had given at trial. The parties further

agree that Champagne had opened the door to prior consistent evidence testimony when he

attempted to impeach J.B. by claiming that she possessed a motive to fabricate her story or

that she was subjected to improper influence. Champagne argues, however, that J.B. had

made no prior consistent statements before the existence of the alleged motivation to

fabricate.



                                              11
¶41    J.B. testified that her mother had taken her to a doctor to see “if I still had my

virginity.” Champagne’s counsel implied during cross-examination that J.B.’s testimony

had been coached. Champagne’s counsel suggested that “virginity” was a word that a

twelve-year-old girl would not normally have in her vocabulary. Champagne’s counsel

asked J.B. whether she had spoken with a number of people about what had happened. J.B.

admitted that she had talked to Falcon, to Matkin, to the County Attorney, and to her friend

Brittany.

¶42    Champagne’s counsel next inquired whether the County Attorney had told J.B. what

to say. J.B. denied that the County Attorney had told her what to say. J.B. admitted that she

and the County Attorney had gone over questions to be asked during her direct examination.

J.B. further admitted that the County Attorney had told J.B. what to expect at the trial and on

cross-examination by Champagne’s counsel.

¶43    Champagne’s counsel also asked J.B. whether Falcon, Matkin, or Brittany had told

J.B. what to say. J.B. denied that any of them had told her what to say. Champagne’s

counsel pressed J.B. on her use of the word “virginity.” Champagne’s counsel stated, “I

never heard you use that word in any of your other interviews. Did somebody tell you what

that was?” J.B. responded, “No.” Champagne’s counsel remarked, “[o]kay. You have a

good vocabulary then. Okay.”

¶44    The District Court determined that Champagne had opened the door to prior

consistent statement evidence. Champagne had suggested on cross-examination that the

County Attorney, Matkin, or Falcon, had coached J.B. in her trial testimony. Falcon testified
                                             12
about what J.B., then ten years old, had told her regarding the incident. Falcon’s testimony

of J.B.’s prior statements comported with J.B.’s testimony at trial. See McOmber, ¶ 13. The

conversation between Falcon and J.B. took place before J.B. had spoken with either Matkin

or the County Attorney. See McOmber, ¶ 15. J.B.’s statements to Falcon took place before

any alleged coaching by Matkin or by the County Attorney could have occurred. See

McOmber, ¶ 15.

¶45    Matkin also testified about what J.B., then ten years old, had told her. Matkin’s

testimony regarding J.B.’s prior statement comported with J.B.’s testimony at trial. See

McOmber, ¶ 13. The conversation between Matkin and J.B. took place before J.B. had

spoken with the County Attorney. See McOmber, ¶ 15. J.B.’s statements to Matkin took

place before any alleged coaching by the County Attorney could have occurred. See

McOmber, ¶ 15. The District Court properly admitted both Matkin’s and Falcon’s testimony

of J.B.’s description of what had happened to her under M. R. Evid. 801(d)(1)(B), due to the

fact that J.B. had made her statements to Matkin and Falcon before the alleged “improper

influence” by the County Attorney. See McOmber, ¶ 15.

¶46    Whether the District Court imposed an illegal sentence?

¶47    Champagne argues that the District Court improperly considered Champagne’s denial

of guilt when it sentenced Champagne. We will not uphold a sentence where a district court

draws a negative inference of lack of remorse as a result of a defendant’s invocation of his

constitutional right to remain silent and refusal to admit guilt. State v. Morris, 2010 MT 259,

¶ 22, 358 Mont. 307, 245 P.3d 512; State v. Shreves, 2002 MT 333, ¶ 24, 313 Mont. 252, 60
                                              13
P.3d 991. The district court must have based its decision “in large part” on the defendant’s

lack of remorse or failure to take responsibility for this Court to reverse the sentence.

Shreves, ¶ 24; see also Morris, ¶ 23.

¶48    The district court in Morris provided eight valid reasons for the sentences, none of

which relied on lack of remorse or lack of accountability. Morris, ¶ 23. The district court in

Shreves, in contrast, based its sentence and parole restriction, in large part, on his failure to

show remorse or to take responsibility for the deliberate homicide for which he had been

convicted. Shreves, ¶¶ 7, 24.

¶49    Here the District Court announced in the judgment that, “Defendant has no empathy

for the victim and he has even projected blame on to the victim.” The District Court further

pointed to Champagne’s four prior felony convictions, his “extensive chemical dependency

history,” and Champagne’s diagnosis as a psychopath. The District Court noted that

Champagne “possesses several psychopathic qualities; he is callous and predatory, deceptive

and manipulative, he lacks empathy and does not feel genuine remorse for his socially

deviant and criminal acts. [Champagne’s] prospects at rehabilitation are slim.” The District

Court further noted that Champagne had been supervised by the Department of Corrections

“in one form or another almost his entire adult life.” We cannot say that the District Court

based its sentencing decision “in large part” on Champagne’s denial of guilt under these

circumstances. See Shreves, ¶ 24; Morris, ¶ 23.

¶50    Further, a district court may sentence a defendant based on lack of remorse so long as

affirmative evidence of the lack of remorse exists. Morris, ¶ 22. The District Court noted
                                               14
that Dr. Michael Scolatti’s psychological evaluation portrayed Champagne as a person who

is “lacking in empathy and does not feel genuine remorse for socially deviant and criminal

acts. He usually does not feel guilt when he hurts, takes advantage of, or otherwise abuses

other people.” Dr. Scolatti further opined that Champagne “evidences little or no empathy

for the victim.” The record does not support Champagne’s claim that the District Court

improperly drew a negative inference from Champagne’s denial of guilt. See Shreves, ¶ 14;

Morris, ¶ 22.

¶51    Champagne next argues that the District Court’s imposition of unspecified restitution

costs represents an illegal sentence. The District Court required Champagne to pay

restitution to J.B. The District Court recognized that J.B. may need additional and ongoing

treatment. The District Court ordered Champagne to cover these future, unknown costs.

The State admits that Montana law requires restitution obligations to be imposed in “a

specified amount.” Heafner, ¶ 13. We remand to the District Court to set a specified amount

for restitution for future costs. See Heafner, ¶ 13.

¶52    Champagne also challenges the District Court’s recommended conditions “[f]or any

term of community supervision.” The District Court possesses authority to make non-

binding recommendations to the Department of Correction’s Board of Pardons and Parole as

part of its judgment. Heafner, ¶ 13. Champagne admits that this Court need not determine

the legality of the District Court’s order if the District Court merely made non-binding

recommendations.

¶53    We affirm in part, reverse in part, and remand.
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                           /S/ BRIAN MORRIS


We concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT




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