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THE REAL DANGER OF EXTRANEOUS OFFENSE EVIDENCE
Man Convicted on 2 Counts Indecency with a Child Found Actually Innocent After Nearly Two Decades in Prison: Extraneous Evidence False, Expert Testimony Wrong.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
We have written on numerous occasions about the dangers of “extraneous offense evidence” when allowed into evidence in a criminal trial. What is extraneous offense evidence?
Extraneous evidence is evidence of another crime, wrong or bad act that is not relevant to proving the specific allegation made in the charging instrument, information or indictment. For example, a prior unrelated DWI conviction would be an extraneous crime in an arson case. It would generally be inadmissible in the guilt/innocence stage of a criminal case because it is irrelevant to the arson charge and has no bearing on any fact that is of consequence in that case.
Evidence of other crimes, wrongs or acts that are extraneous to the underlying charge are specifically inadmissible to prove the character of a person to show that person acted in conformity therewith. There are exceptions however when it can be shown that the evidence is relevant to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Texas Rules of Evidence 404(b).
If a court finds this evidence is admissible for one of the listed exceptions, and after proper defense objection, the judge must conduct a balancing test under which the court weighs the probative value (its relevance to some issue such as motive, intent, opportunity, plan etc.) against the risk of unfair prejudice, confusion of the issues or misleading the jury caused by the evidence. Texas Rules of Evidence 403.
Although current case law says otherwise, we do not believe most extraneous offense evidence ever possesses true probative value outweighing its unfair prejudicial effect, making it deserving of admission into evidence at a criminal trial. It is often the most dangerous, prejudicial evidence introduced in a criminal trial, especially in cases of child sexual assault where the evidence of guilt is generally no more than the victim’s testimony. That’s exactly why the State uses extraneous offense evidence in these cases: to bolster a weak case. Prosecutors know jurors. Some will frequently have reasonable doubt about a child victim’s testimony but will set those doubts aside when the prosecution presents extraneous offense evidence to bolster that testimony.
Montgomeryv. State
Patrick Logan Montgomery was a Texas attorney in the 1980s. He was embroiled in a contentious divorce proceeding in the middle of that decade with an estranged wife. The couple had two prepubescent daughters at the time of the divorce. It was during these divorce proceedings that Montgomery was indicted two counts of indecency with a child. The attorney immediately replied that his ex-wife had pressured the two girls, ages seven and ten, to falsely accused him of the crimes.
Montgomery was put on trial in the late 1980s in Dallas County. Prosecutors knew their case was weak with only the testimony of the two girls, given the contested divorce proceedings. They decided to present extraneous offense evidence through the testimony of the ex-wife and to bolster the girls’ testimony with a “child sexual abuse” expert who, as we have frequently pointed out, are generally nothing more than “hired guns” for the prosecution and who have a sordid history of manipulating and manufacturing evidence to wrongfully convict criminal defendants in child sexual assault cases.
The trial judge permitted the ex-wife’s testimony about the extraneous offense evidence on the theory that it was relevant and would assist the jury in “properly evaluating” the questionable testimony of a child against an adult who had authority and control over the child. The ex-wife opened her testimony by telling the jury that on several occasions Montgomery paraded around in front of the girls in the nude with an erection. She went on to tell the jury that:
- She once discovered one of the girls in the shower with Montgomery;
- That when the youngest daughter kissed her father, her mouth was open and she would insert her tongue in his mouth;
- She observed Montgomery bathing the girls;
- She heard him one time discussing their genitals;
- She heard him once tell one of the girls she had a “fat pussy;”
- She frequently heard him ask the girls if they had “washed their slits;” and
- She often heard him tell the girls “you and I were meant for each other.” “give me your hot love,” “my lips were made for kissing,” and “press my hot lips.”
The appeal records in the case do not offer any explanation as to why the mother did not report this behavior to either law enforcement officials or child protective services before the acrimonious divorce proceedings.
Montgomery’s second oldest daughter told the jury:
Q. Now will you tell [the jury] about the secret you and your daddy had?
A. Yes.
Q. What happened? Look over here … tell me what happened.
A. My dad told me not to tell anybody.
Q. Well, it’s okay to tell now, so will you tell us now?
A. Yes.
Q. Okay. Tell me what happened. Did your daddy come in a room?
A. Yes.
Q. What did he say when he came in the room?
A. Not to tell anybody.
Q. What happened when your daddy walked into the room?
A. He told me to pull down my panties.
Q. Okay. And did you do that?
A. Yes.
Q. Because he’s your daddy, right, and you mind him?
A. Yes.
Q. Okay. Then what did you do?
A. I did what he told me to do.
Q. And what was that?
A. To pull down my panties.
Q. And then what?
A. Then he pulled down his panties.
Q. And then what did he do?
A. He molested me.
Q. How did he do that?
A. By touching me.
Q. What did he touch you with?
A. His hands.
Q. He put his hands where?
A. On my private.
The girl’s testimony was bolstered by the prosecution’s child sexual abuse expert who told the jury Montgomery had touched the girl in her genital area and explained this touching to the jury with the following testimony:
Q. Did you ask her whether or not she had any secrets?
A. Yes, I did.
Q. Did you ask her who those secrets were with?
A. Yes.
Q. Who did she say they were with?
A. Daddy.
Q. What did you ask her next?
A. I asked her if she could tell me about the secret.
Q. What did she say?
A. She said that her father—the secret was that her father was touching her and then she indicated her genital area by touching.
Q. Did she say what he was touching her with?
A. His hand.
Q. Did you use anything to get further information from her regarding that?
A. Yes, I did.
Q. And what did you use?
A. The anatomically correct dolls.
Q. What did she do with those dolls?
A. She took the male doll and laid it on top of the female doll. She took the penis from the male doll and stuck it between the thighs and then she moved the male doll’s hips back and forth.
Q. She put the penis of the male doll—and I assume his pants were down?
A. Yes.
Q. Between the thighs of the female doll?
A. Yes.
Q. And were her pants off too?
A. Yes.
Q. And then she moved the male doll’s hips back and forth?
A. Yes.
Montgomery took the witness stand in his own defense and denied the allegations. He told the jury the girls’ mother had “coached” the girls to make false allegations against him as revenge because he left her and took the children with him. Anticipating this defense, the prosecution had already secured an opinion from the child sexual abuse expert that she did not believe the girls had been coached. And to further rebut the “coached” defense, the prosecution on cross-examination repeatedly peppered Montgomery with questions about incest and the difficulty a child would have overcoming incestuous abuse. Defense counsel objected strenuously to this line of questioning and the trial judge sustained the objections. But the questions, though unanswered, were left hanging out there for the jury to consider.
Montgomery was convicted and given a 10-year prison sentence on each count of indecency with a child, to be served consecutively. The problem with the ex-wife’s extraneous offense testimony and the two daughters’ testimony is that it was all a lie. The abuse never happened. Nearly two decades after his conviction the daughters provided their father with sworn affidavits saying their mother and other “authoritative persons” had encouraged them to testify falsely about the sexual abuse that never occurred.
On May 9, 2008, the trial court conducted an evidentiary hearing on Montgomery’s claim that the affidavits proved his “actual innocence” of the charges. The daughters testified at that hearing, telling the court they had lied against their father because the mother and others encouraged them to do so. The trial court weighed this recanted testimony against the evidence presented at the trial and found the new evidence to be more credible than the trial evidence. The trial court reversed Montgomery’s conviction and ordered him set free. The State appealed, but on April 29, 2009, the Texas Court of Criminal Appeals agreed with the trial court, reversing Montgomery’s conviction based on a demonstration of “actual innocence.”
Montgomery’s life and career have been literally destroyed by a spiteful, vengeful ex-wife and a child sexual abuse expert who served only the interest of conviction. Standing alone, the two girls’ testimony would have been highly questionable because of their ages—ten and seven—and because their accounts did not sound plausible. Their testimony became credible only after the child sexual abuse expert testified she didn’t believe the girls had been “coached”—and that erroneous “expert” conclusion was bolstered by the ex-wife testimony offering a litany of alleged episodes of sexually indecent behavior Montgomery exhibited toward the girls.
These kinds of cases generally begin with a vengeful, soon to be ex-spouse calling the police to report alleged sexual abuse. The police refer the case to child sexual abuse experts who question the child victims and submit reports to the district attorney. Virtually every referral of a child sexual abuse complaint to a child sexual abuse expert results in a report to the district attorney favoring prosecution. There have been innumerable instances not only in Texas but across the nation where these experts have manipulated the evidence, even fabricated evidence, in order to present enough probable cause to bring a criminal prosecution.
The Patrick Logan Montgomery case should stand at a reminder to every criminal trial judge and prosecutor in this state about the danger inherent in extraneous offense evidence, especially when it is endorsed by a child sexual abuse expert. The ex-wife in this case not only “coached” her daughters to lie against their father but committed perjury herself by telling the jury about extraneous offenses that had not occurred. And it was all done because of that most evil of human emotions: revenge.
SOURCES
Montgomeryv. State, 760 S.W.2d 323 (Tex.App-Dallas 1988)
Montgomeryv. State, 810 S.W.2d 372 (Tex.Crim.App. 1990)
Montgomeryv. State, 2009 Tex.Crim.App. Unpub. LEXIS 318 (Tex. Crim. App. April 29,2009)
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
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Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
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The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
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I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
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I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
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Extremely helpful!!! Helping me understand the law.
John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization
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