State v. Mederos , 372 Mont. 325 ( 2013 )

October 29 2013
DA 12-0577
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 318STATE OF MONTANA,
Plaintiff and Appellee,
v.
LLOYD EUGENE MEDEROS,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and For the County of Silver Bow, Cause No. DC 11-83
Honorable Brad Newman, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joseph P. Howard, P.C., Attorney at Law; Great Falls, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
Attorney General; Helena, Montana
Eileen Joyce, Silver Bow County Attorney, Samm Cox, Deputy County
Attorney; Butte, Montana
Submitted on Briefs: August 14, 2013
Decided: October 29, 2013
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Lloyd Eugene Mederos (Mederos) appeals his conviction from the Second Judicial
District Court, Silver Bow County. We affirm.
¶2 We address the following issue on appeal:
¶3 Whether Mederos’s trial counsel rendered ineffective assistance of counsel.
PROCEDURAL AND FACTUAL BACKGROUND
¶4 A.R. and A.S. were both seven years old at the time that they alleged Mederos
sexually assaulted them. A.S. lived with her mother Laura. A.R. lived with her mother,
Laura’s sister, Kelley. Mederos was married to Kelley, so he also lived with A.R. A.S. and
A.R. were close friends and spent lots of time together.
¶5 In 2011, A.S. told Laura that she did not want to go to her Aunt Kelley’s apartment
because Mederos had been “sexing” her. A.S. also told Laura that Mederos had engaged in
sexual contact with A.R. Laura contacted Kelley and the girls’ grandfather, Larry. Laura,
Kelley, and Larry confronted Mederos. Mederos denied the claims. Laura reported Mederos
to the police.
¶6 Forensic investigators interviewed the girls. The girls provided vague and unclear
accounts during the forensic interviews. Medical examinations showed some signs of
trauma, but ultimately proved inconclusive.
¶7 Mederos denied the charges at trial. The two girls testified at trial. Both girls offered
disjointed and, at times, contradictory testimony about what happened. A.R. and A.S. often
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responded that they did not remember what happened when counsel for the State or
Mederos’s counsel asked them for more details.
¶8 Laura, Kelley, and Larry all testified at trial about the events of the night that A.S.
told Laura that Mederos had been “sexing” her. The State also presented the testimony of
other witnesses. These other witnesses included clinical social worker Dawn English
(English), pediatrician Dr. Kenneth Graham (Graham), and forensic interviewers Shawna
Guay (Guay) and Sue Casey (Casey). English testified about her therapy sessions with A.R.
and A.S. She commented that A.S. had made consistent statements during therapy. Graham
discussed his medical examination of the girls and what he had reported in his forensic
medical reports. Both Guay and Casey testified about their forensic interviews with the girls.
¶9 A jury convicted Mederos of both counts of sexual assault. The District Court
sentenced Mederos to concurrent 100 year sentences at Montana State Prison, with 50 years
of each sentence suspended. Mederos appeals.
STANDARD OF REVIEW
¶10 Claims of ineffective assistance of counsel present mixed issues of law and fact that
we review de novo. State v. Clary, 2012 MT 26, ¶ 12, 364 Mont. 53, 270 P.3d 88.
DISCUSSION
¶11 Mederos argues that his trial counsel rendered ineffective assistance of counsel in two
areas. Mederos first contends that his counsel failed to object to numerous incidences of
hearsay testimony by various witnesses. He also argues that his counsel improperly
stipulated to the admission of multiple items of evidence that contained otherwise
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inadmissible hearsay statements. Mederos contends that this evidence bolstered A.R.’s and
A.S.’s testimony and raises a reasonable probability that the outcome of the proceedings
would have been different if this additional, cumulative evidence had not been admitted.
¶12 We evaluate claims of ineffective assistance of counsel under the two-prong test set
forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). State v.
Howard, 2011 MT 246, ¶ 20, 362 Mont. 196, 265 P.3d 606. A defendant must establish that:
(1) counsel’s performance was deficient and (2) the deficient performance prejudiced the
defendant. Rosling v. State, 2012 MT 179, ¶ 23, 366 Mont. 50, 285 P.3d 486. A defendant
must establish both prongs of the test. Whitlow v. State, 2008 MT 140, ¶ 11, 343 Mont. 90,
183 P.3d 861. We will not address both prongs if a defendant fails to establish either prong.
Whitlow, ¶ 11.
¶13 A deficient performance falls “below an objective standard of reasonableness
measured under prevailing professional norms and in light of the surrounding
circumstances.” Whitlow, ¶ 20. We have recognized “ ‘a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.’ ” Whitlow, ¶ 15,
quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. A petitioner who argues that his
counsel’s “failure to object rendered counsel ineffective must show that counsel’s trial
objection would have been proper and that the court likely would have sustained the
objection.” Rogers v. State, 2011 MT 105, ¶ 16, 360 Mont. 334, 253 P.3d 889.
¶14 Mederos argues first that his counsel failed to object to multiple and repeated
instances of hearsay testimony. Mederos posits that Laura, Kelley, and Larry offered
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impermissible hearsay testimony regarding earlier statements made by A.R. and A.S.
Mederos also argues that Graham, English, Guay, and Casey improperly testified to the girls’
out-of-court statements and identifications of Mederos as the perpetrator. The State argues
that Mederos’s trial counsel used testimony from these witnesses to cast doubt on the girls’
credibility.
¶15 Not all out-of-court statements constitute hearsay. Montana Rule of Evidence
801(d)(1) specifically excludes from the hearsay rule a prior statement by a witness where
“the declarant testifies at the trial or hearing and is subject to cross-examination concerning
the statement” under two separate circumstances relevant here. The first circumstance
involves a statement that is “inconsistent with the declarant’s testimony.” M. R. Evid.
801(d)(1)(A). The second circumstance involves a statement that is “consistent with the
declarant’s testimony and is offered to rebut an express or implied charge against the
declarant of subsequent fabrication, improper influence or motive.” M. R. Evid.
801(d)(1)(B).
¶16 Mederos must show that hearsay objections would have been proper and that the trial
court would have sustained the objection to support his claims of ineffective assistance.
Rogers, ¶ 16. A.R. and A.S. both testified at trial and Mederos’s counsel cross-examined
each regarding their earlier statements. Many of A.R.’s and A.S.’s prior statements likely
would qualify as prior inconsistent statements.
¶17 A claimed lapse of memory represents an inconsistency under M. R. Evid.
801(d)(1)(A). Howard, ¶ 31, citing State v. Lawrence, 285 Mont. 140, 159, 948 P.2d 186,
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198 (1997). A.R. and A.S. frequently responded that they did not know or could not
remember answers to questions during direct and cross-examination. The girls’ testimony
charitably can be described as vague at times and somewhat unclear. The repeated lapses in
memory in the girls’ testimony allowed the State to introduce other witnesses to testify about
the girls’ prior inconsistent statements. See Howard, ¶ 31, citing Lawrence, 285 Mont. at
159, 948 P.2d at 198.
¶18 Laura’s, Kelley’s, and Larry’s testimony introduced the girls’ prior inconsistent
statements. A court may admit consistent statements in conjunction with inconsistent
statements where the nature of a witness’s testimony makes it difficult for the court to
separate the consistent from the inconsistent portions of the prior statement. Howard, ¶ 31,
citing Lawrence, 285 Mont. at 160, 948 P.2d at 198. The witnesses admittedly mixed
consistent statements with inconsistent ones. The record indicates that to parse the consistent
statements from the inconsistent statements likely would have made the witnesses’ testimony
disjointed and confusing. See Howard, ¶ 31, citing Lawrence, 285 Mont. at 160, 948 P.2d at
198.
¶19 For example, A.S. testified that she had talked to her mother about Mederos on
February 28, 2011. Mederos’s counsel asked A.S. on cross-examination when she first had
told her mother that Mederos had been molesting her. A.S. responded that she did not
remember. A.S.’s disjointed testimony failed to provide a clear picture of what actually
happened on February 28, 2011. Laura testified about events that happened the night that
A.S. told Laura that Mederos had been “sexing” her. Laura’s testimony clarified what she
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and A.S. had discussed on February 28, 2011, and what A.S. had told her about Mederos.
For the District Court to have admitted only parts of Laura’s testimony would have led to a
piecemeal picture of what had happened that likely would have further confused the jury.
Laura’s testimony provided a time frame and context for A.S.’s testimony about what
happened when she told her mother about Mederos.
¶20 Mederos’s counsel may have had strategic reasons for not objecting even if all of
Laura’s, Kelley’s, and Larry’s testimony did not fall under M. R. Evid. 801(d)(1)(A). We
have held that counsel’s use of objections “lies within his or her discretion.” Riggs v. State,
2011 MT 239, ¶ 53, 362 Mont. 140, 264 P.3d 693. Riggs also involved a sexual assault case
against minors. Riggs raised an ineffective assistance of counsel claim based on his
counsel’s failure to object when several witnesses—the victims’ mothers, social workers,
and law enforcement officers—offered prior consistent statements made by the victims.
Riggs, ¶ 50.
¶21 Riggs’s counsel testified at an evidentiary hearing on Riggs’s petition for post-
conviction relief that he had not objected to these witnesses’ statements because he wanted to
point out the numerous inconsistencies in the victims’ statements. Riggs, ¶ 53. We
recognized that different counsel have different trial strategies and that Riggs’s counsel’s
strategy was objectively reasonable. Riggs, ¶ 54. As in Riggs, Mederos’s counsel may have
opted not to object to Laura’s, Kelley’s, and Larry’s testimony in order to highlight
inconsistencies in the girls’ stories. Mederos’s counsel had discretion not to object. Riggs,
¶ 53.
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¶22 Mederos next asserts that Graham, the examining pediatrician, improperly testified to
A.R.’s out-of-court statements recorded by the forensic interview team. Mederos classifies
this testimony by Graham as hearsay within hearsay. Mederos ignores the fact that the
parties previously had stipulated to the admission of A.R.’s forensic interview. Graham
simply testified to matters previously admitted into evidence through the forensic interviews
and forensic medical reports that he had prepared.
¶23 Mederos also argues that Graham offered impermissible hearsay that A.S. “had
disclosed digital/vaginal penetration.” The parties previously had stipulated to the admission
of A.S’s forensic medical report created by Graham. Graham’s testimony repeated
statements that he had made in A.S.’s forensic medical report, including the notion that A.S.
“had disclosed digital/vaginal penetration.”
¶24 Presentation to a jury of admissible evidence that proves the same facts as tainted
evidence usually amounts to harmless error when the tainted evidence qualifies as
cumulative of the admissible evidence. State v. Van Kirk, 2001 MT 184, ¶ 47, 306 Mont.
215, 32 P.3d 735. We have characterized as cumulative a witness’s testimony regarding out-
of-court statements, and, thus, harmless error, as the statements mirrored those made on a
911 tape that the trial court earlier had admitted without objection. State v. Mizenko, 2006
MT 11, ¶ 26, 330 Mont. 299, 127 P.3d 458.
¶25 Graham’s testimony repeated statements made in A.R.’s forensic interview and A.S.’s
forensic medical report. Both documents earlier had been admitted without objection.
Graham’s testimony would qualify as cumulative of the previously admitted documents.
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Van Kirk, ¶ 47. The District Court’s admission of Graham’s statements, regardless whether
Mederos’s counsel objected, would be subject to harmless error analysis. Van Kirk, ¶ 47.
“An ineffective assistance of counsel claim cannot succeed when predicated on counsel’s
failure to take an action which, under the circumstances, would likely not have changed the
outcome of the proceeding.” State v. Haldane, 2013 MT 32, ¶ 37, 368 Mont. 396, 300 P.3d
657.
¶26 Mederos contends that social worker English repeated hearsay statements in her
testimony when the State asked English whether A.S. had been consistent about her
allegations and the identity of her abuser. English testified that A.S. had been “completely
consistent.” English’s testimony regarding A.S.’s prior consistent statement likely would not
qualify as hearsay under M. R. Evid. 801(c). English did not restate A.S.’s prior statements
in court to prove the “truth of the matter asserted” in the statements. M. R. Evid. 801(c).
Rather, English testified in response to Mederos’s attacks on A.S.’s veracity as a witness.
See State v. Robins, 2013 MT 71, ¶ 11, 369 Mont. 291, 297 P.3d 1213 (discussing situations
in which it would be appropriate for an expert witness to testify about a child sexual abuse
victim’s credibility). English contended that A.S. consistently had alleged that Mederos had
engaged in sexual conduct with her. Mederos’s counsel legitimately could have believed
that he did not have grounds to object to the statement as hearsay. See State v. Aker, 2013
MT 253, ¶ 36, 371 Mont. 491, ___P.3d ___.
¶27 Mederos also argues that forensic interviewers Guay and Casey presented hearsay
statements. Guay and Casey testified regarding statements made by A.R. and A.S. during
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forensic interviews. The parties previously had stipulated to the admission of the forensic
interviews. The statements would qualify as cumulative of the previously admitted forensic
interviews. Mizenko, ¶ 26; Van Kirk, ¶ 47. Cumulative evidence will be deemed harmless “
‘unless the record shows that the error was prejudicial.’ ” State v. Hansen, 1999 MT 253,
¶ 86, 296 Mont. 282, 989 P.2d 338, quoting State v. Carter, 285 Mont. 449, 459, 948 P.2d
1173, 1178-79 (1997); § 46-20-701(1), MCA. Unfairly prejudicial evidence “arouses the
jury’s hostility or sympathy for one side without regard to its probative value.” State v.
Ugalde, 2013 MT 308, ¶ 47, 372 Mont. 234, ___ P.3d ___.
¶28 Mederos’s counsel could exercise discretion regarding when to object. Riggs, ¶ 53.
He may have chosen not to object for a variety of reasons, even when a witness proffered
hearsay testimony. Testimony from Laura, Larry, Kelley, Graham, Guay, and Casey
contradicted the girls’ vague and erratic testimony throughout trial. Mederos’s counsel
successfully brought out these contradictions through cross-examination. Mederos’s counsel
may have anticipated that these witnesses’ testimony would create a tangled story that
ultimately would undermine the girls’ credibility.
¶29 Mederos next challenges the District Court’s admission of various items of evidence
in the record that he argues should have been excluded as hearsay. A statement can be oral
or written for purposes of hearsay. M. R. Evid. 801(a). Mederos’s counsel stipulated to the
admission of all the State’s exhibits before trial. This stipulation included four main items:
(1) video recordings of the girls’ forensic interviews, (2) drawings and pictures created
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during the girls’ forensic interviews, (3) reports from the girls’ forensic medical exams, and
(4) A.S.’s emergency room medical report.
¶30 The girls frequently mentioned that they could not remember certain events
throughout their testimony. As discussed previously, lapsed memories constitute
inconsistent statements under M. R. Evid. 801(d)(1)(A). Howard, ¶ 31, citing Lawrence, 285
Mont. at 159, 948 P.2d at 198. The girls also made statements at trial directly inconsistent
with statements they had offered during the forensic interviews. For example, A.S. told
Casey during her forensic interview that Mederos had twice put his finger in her “pee-pee.”
A.S. testified in trial, though, that Mederos put his finger in her “pee-pee” three times and
that she “remember[ed] telling everyone that…he put his finger in [her] pee-pee three times.”
¶31 Mederos’s counsel cross-examined A.R. and A.S. and the other witnesses presented
by the State regarding these inconsistent statements. Mederos’s counsel highlighted the fact
that A.S. testified differently at trial than she had testified during the forensic interviews.
These inconsistencies may have prompted Mederos’s counsel to stipulate to the admission of
the forensic reports for strategic reasons to help undermine the girls’ testimony through
cross-examination. Counsel’s actions, taken in this light, do not appear to fall “below an
objective standard of reasonableness measured under prevailing professional norms.”
Whitlow, ¶ 20.
¶32 The State introduced pictures and drawings from the girls’ forensic interviews. A.R.
labeled body parts on a picture of the human body during her forensic interview. The State
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used the picture to establish how A.R. identified different body parts. The State did not use
the picture with A.R’s annotations to establish that the picture presented a true and accurate
representation of the human body. The State instead introduced the picture to demonstrate
to, and clarify for, the jury the names that A.R. used for different body parts.
¶33 A.S. drew a picture during her forensic interview. A.S.’s drawing depicted events that
A.S. claimed had happened in the bedroom with Mederos. A.S. denied at trial having made
the drawing. The admission of the drawing, coupled with A.S.’s denial of having made the
drawing, undermined A.S.’s credibility as a witness. The decision by Mederos’s counsel to
stipulate to admission of the drawing had the potential to help Mederos’s case as evidenced
by A.S.’s denial that she had made the drawing.
¶34 Graham created separate forensic medical reports for A.S. and A.R. Both medical
reports contain fertile ground for cross-examination. A.S.’s medical report illuminates
inconsistencies in her claims. A.S. states in the report that Mederos had touched her in
January. A.S.’s mother testified at trial, however, that A.S. had not been to Mederos’s house
in January. A.R.’s medical report indicates that she previously had been to the Child
Evaluation Center based on allegations of possible sexual abuse by a different family
member. Both reports provide inconclusive physical evidence of sexual abuse.
¶35 The State also introduced a medical report from A.S.’s emergency room visit after
Laura had reported the case to the police. A.S. reported the presence of “white stuff” in her
vaginal area after Mederos had molested her. One might deduce that the “white stuff” had
been semen. The emergency room medical report offers another possible explanation,
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however, for “white stuff” found in A.S.’s vaginal area. The report speculates that A.S.
might have had a yeast infection. Mederos’s counsel reasonably could have anticipated that
the admission of these medical reports would benefit his client. This interpretation would
position Mederos’s counsel’s actions within the standard of reasonable professional
assistance. See Whitlow, ¶ 14, citing Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2065.
¶36 We ask “why” Mederos’s counsel did or did not perform as alleged in evaluating
Mederos’s counsel’s performance throughout trial. Aker, ¶ 34, citing Howard, ¶ 21. We
look to the record to answer this question. Aker, ¶ 34, citing Howard, ¶ 21. We cannot
address a claim of ineffective assistance of counsel on direct appeal if the defendant bases his
claim on matters outside of the record. Aker, ¶ 34, citing State v. Kougl, 2004 MT 243, ¶ 14,
323 Mont. 6, 97 P.3d 1095. A petition for post-conviction relief would allow Mederos to
develop a record to explain “why” his counsel acted as he did at trial. Aker, ¶ 34. A
reviewing court then could determine “ ‘whether counsel’s performance was ineffective or
merely a tactical decision.’ ” Aker, ¶ 34, quoting Kougl, ¶ 14.
¶37 The evidence as a whole illuminates inconsistencies in the girls’ story and undermines
their veracity as witnesses. Mederos’s counsel addressed these inconsistencies in his closing
statements. Mederos’s counsel also may have perceived that all of the statements and
evidence contested by Mederos did not actually violate hearsay rules. The trial record does
not include an explanation for Mederos’s counsel’s trial strategy. We decline to speculate on
the claimed error on direct appeal as Mederos’s allegations of ineffective counsel implicate
questions of trial strategy that exceed the scope of the record. See Aker, ¶ 37, citing State v.
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Dyfort, 2000 MT 338, ¶ 11, 303 Mont. 153, 15 P.3d 464. A petition for post-conviction
relief represents the appropriate route for Mederos to develop a record to support his claim of
ineffective assistance of counsel. Aker, ¶ 34.
¶38 Affirmed.
/S/ BRIAN MORRIS
We concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JIM RICE
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