Montana Supreme Court Orders New Trial In Child Rape Case

HELENA, Mont. (AP) — The Montana Supreme Court has ordered a new trial for a Great Falls man who was convicted of raping a 13-year-old girl who is deaf and has developmental disabilities, saying he was denied his constitutional right to confront his accuser.

The court ruled 5-2 on Tuesday that the trial judge shouldn't have allowed a nurse, a child protection specialist with the Department of Public Health and Human Services and a police officer to testify about what the girl told them while they were investigating the 2016 report because defendant Richard Lee Tome did not have the opportunity to cross-examine the alleged victim.

“We have little doubt that, qualitatively, the testimony from the three witnesses alone and the recorded (health department) interview contributed to the conviction of Tome,” Justice Laurie McKinnon wrote for the majority.

The girl was found to be not competent to testify during the 2018 trial because she didn't appear to understand the concept of the truth versus a lie.

Tome, who was sentenced to life in prison without the possibility of parole until he completed two phases of sex offender treatment, did not challenge the admissibility of testimony by a school psychologist and a behavioral specialist at the Montana School for the Deaf and Blind in Great Falls, where the girl first reported the alleged rape.

In their dissent, Justices Jim Rice and Beth Baker argued there were exceptions to requirements that people be allowed to confront their accusers. They said the U.S. Supreme Court made it clear that the confrontation clause does not bar prior statements of a person who is unable to communicate to the jury at the time of trial. The cross-examination of a witness incapable of testifying can serve no legitimate purpose, Rice wrote.

“If the most vulnerable victims of abuse in our society cannot be heard — ever — then there is something wrong with the constitutional rule,” Rice wrote.

The dissent also noted that the Montana Legislature passed a law in 2007 allowing hearsay statements to be admissible to prove the occurrence of a crime or identification of an abuser in the case of physical or sexual abuse of a person with a developmental disability. Prosecutors must give defendants sufficient notice that such evidence will be used.

During Tome’s trial, the girl’s mother testified she was in the home at the time of the alleged rape and didn’t hear or see anything that led her to believe anything was wrong, the Great Falls Tribune reported.

However, a fellow inmate at the Cascade County Detention Center testified that Tome told him he was arrested for raping a disabled child and he was going to get away with it because he used a condom, court records said.

There was no DNA evidence linking Tome to the alleged rape, court records said.