State v. Pinner, 2019 MT 54N:
Pinner, a black Amtrak employee, was found guilty by a jury in Roosevelt County of Sexual Intercourse Without Consent against a white Amtrak passenger from North Carolina. On appeal, Pinner argued the prosecutor had used racist themes to obtain a conviction. Declining plain error review, the Court held that while the prosecutor could at time have been more judicious in his language, he did not invoke racial prejudice. The Court also rejected an Ineffective assistance of counsel claim regarding counsel’s failure to object to the prosecutor use of prior bad acts and counsel’s allusion to prior consensual sex contrary to Pinner’s defense.
The State conceded and the Court struck IT fee imposed per count,costs of jury trial of $33,390.74,and the cost of court-assigned counsel of $16,578 which had been imposed without an ability to pay determination by the trial court.
State v. Walter, 2018 MT 292: (briefing by Eileen Larkin and Moses Okeyo)
Walter pled to felony drug possession and the State sought a Persistent Felony Offender (PFO) sentence. Defense counsel argued that 45-9-102(7)—which creates a presumption that a first-time drug offender is entitled to a deferred—was the more specific statute and controlled over Walter’s PFO status. The district court wanted to impose something less than a PFO sentence but accepted the State’s position that it was bound by the PFO statute’s mandatory minimum. No one alerted the district court to 45-9-202 (the Alternative Sentencing Authority (ASA) statute for drug offenses) or to Brendal, 2009 MT 236, in which the Court held that the ASA statute can trump the PFO statute. Because of the district court’s comments that it wanted to impose a lesser sentence such as drug treatment, Walter was able to establish a reasonable probability that he would have received a different sentence had the ASA statute and Brendal been brought to the district court’s attention. The Court remanded for resentencing.
State v. Brown, 2018 MT 247N: (briefing by Moses Okeyo and Jennifer Hurley)
Despite Brown’s efforts to give a false name, an officer suspected Brown of having an outstanding felony arrest warrant. The officer said he was “detaining” Brown, cuffed him, and leaned him up against the patrol car. When the officer took his hands off Brown, Brown ran and was charged with felony escape. At trial, Brown testified that he did not think he was under formal arrest when he ran.
When Brown took the stand to testify, the district court stationed a guard between Brown and the jury. Brown objected. The district court denied the objection, citing only its historical practice of placing such a guard. Brown argued the guard’s visible proximity (especially in an Escape case) violated his right to a fair trial. The Court faulted the district court for simply relying on its historical practice, rather than analyzing Brown’s particular circumstance. However, this error notwithstanding, the Court then held that the single guard was not prejudicial since the jury already knew (and Brown did not deny) that he had fled from officers previously.
The Court also denied an Ineffective Assistance of Counsel claim on direct appeal. Brown had argued that where his theory of defense was the difference between awareness of investigative detention versus arrest/official detention, counsel was ineffective at various points for not clarifying this legal defense to the jury. The Court said the claim was more appropriate for Postconviction relief proceedings.
The State conceded to two errors: The Court struck a violent offender registration requirement from Brown’s judgment. Escape is not statutorily a violent offender registration offense. The Court also ordered that the written judgment be amended to include a treatment program recommendation that had been orally pronounced.
State v. Degele, 2018 MT 216N:
Degele was committed to DPHHS on a guilty but mentally ill sentence for two SIWCs against his infant daughter. Under the then-applicable version of 45-5-503(4)(a)(i), the district court imposed a 25-year, mandatory parole ban. Degele objected, noting that 46-14-312(2) provides that for a DPHHS commitment “any mandatory minimum sentence prescribed by law for the offense need not apply.” The Court held that while 46-14-312(2) allows a sentencing court to depart from a mandatory minimum parole restriction, the “need not apply” language does not prohibit the sentencing court form imposing such a mandatory minimum. The Court, thus, upheld the 25-year parole ban on Degele’s DPHHS sentence.
The district court also recommended once Degele was became mentally stable, he be transferred from MSH to MSP. Degele argued this pre-empted DPHHS’s placement authority. The Court disagreed, accepting the State’s argument that as with parole recommendations, a district court is free to make non-binding recommendations to DPHHS.
Upon State concession, the Court ordered two no-contact conditions in the written judgment be conformed to the oral pronouncement and the per count $10 fee be amended to a single $10 fee.
State v. Johnston, 2018 MT 161N: Johnston appeal argued that his sentence was illegally premised upon a conviction that was reversed on appeal. The Court disagreed, noting that a sentencing court is allowed to consider the underlying factual allegations of a dismissed charge and that Johnston's exact number of prior felonies was not material to the district court's sentencing decision anyway. The Court rejected a related IAC claim on a similar lack of prejudice analysis.
Johnston also challenged the imposition of $930 in jury costs, arguing he lacked the ability to pay. At sentencing, he testified that he had been unemployed for several years, had no assets, and had debt (including back child support). The State sought remand for a more thorough ability-to-pay inquiry. The Court concluded the existing record was sufficient to demonstrate Johnston's inability to pay and just struck the $930.
State v. Freiburg, 2018 MT 145: (briefing by Haley Connell Jackson and Moses Okeyo) Freiburg was convicted of Child Endangerment by DUI under 45-5-628(1)(e) for driving around a camp ground with BAC above 0.08 and with several children in the vehicle. At trial,Freiburg contested the DUI aspect by challenging the accuracy of the BAC evidence and contested the endangerment part by arguing there was no actual danger to the children from his driving. Freiburg sought instructions on DUI and DUI per se as lesser-included offenses (LIOs) of the Child Endangerment by DUI charges. The district court refused the instructions, reasoning that Freiburg’s trial defense, if believed, would require outright acquittal, not conviction of a LIO. We argued this was not true because the jury could reject his attack on the DUI evidence while at the same time accepting his argument that his driving had not actually endangered the children.
The Court agreed with this argument. A trial court must give a requested LIO instruction where (1) the requested offense legally qualifies as a LIO of the charged offense and (2) the proposed LIO is factually supported by the trial evidence. The second prong is met where there is “some basis from which a jury could rationally conclude that the defendant is guilty of the lesser, but not the greater offense.” The particular Child Endangerment charged here required proof of DUI (or DUI per se) plus purposely, knowingly, or negligently causing substantial risk of death or serious bodily injury to a kid under 14. The Court rejected the State’s argument that driving drunk always endangers any kids in the car. Instead the Court held that 45-5-628(1)(e) allows the possibility of committing DUI without purposely/knowingly/negligently creating a substantial risk of serious bodily injury/death to children in the car.
The Court also rejected the State’s argument that the DUI LIO instructions were not appropriate because Freiburg’s trial defense (attacking the BAC), if believed, would have required a full acquittal. Citing Daniels, 2017 MT 163, the Court explained that Freiburg presented alternative theories at trial (not drunk and not driving dangerously), and it was rationally possible for the jury to have believed that he was guilty of DUI without finding that he knowingly/negligently endangered the children.
State v. Flowers, 2018 MT 96: Flowers was found guilty of various drug offenses based upon contraband found in a car he was driving. At trial his passenger, Hill, testified the drugs were Flowers’s. Hill had recently pled and was awaiting sentencing on a global plea agreement under which she pled to drug charges for this event in exchange for a recommendation of seven with two suspended and the State dropping most of the other charges and the PFO notice in a separate case. When asked whether she obtained any leniency from the State, Flowers responded, “If you call seven years favorable treatment.” When the defense sought to follow up with an inquiry into Hill’s prior, total exposure of a 147 years and the State’s agreement to dismiss the other charges and PFO notice, the district court barred the inquiry on 404(b) grounds.
The Court reversed and remanded for a new trial. The Court held that the district court abused its discretion in preventing Flowers from impeaching Hill’s credibility by showing her motive to testify falsely against Flowers. The Court noted that the trial court could have precluded reference to the specific crimes in Hill’s other case, but that it was error to completely prohibit Flowers from showing the jury that Hill had faced a 147-year sentence and received a State agreement for seven with two suspended. (The defense had also filed pretrial motions seeking to use such evidence, which the Court noted in rejecting the State’s claim that the issue was not preserved for appeal.)
The Court also addressed and denied an IAC claim regarding counsel not asking for an instruction to distrust accomplice testimony under 26-1-303(4). The Court held that since Flowers’s trial theory was complete innocence, not that he was acting in concert with Hill, it was a reasonable tactical decision not to seek such an instruction.
State v. Iverson, 2018 MT 27: A jury convicted Iverson of felony DUI per se. When stopped Iverson admitted some drinking and showed some signs of impairment. A blood draw two hours later returned a BAC of 0.107 ±0.008. Using testimony regarding differing absorption rates among individuals, Iverson argued there were two reasonable interpretations of this BAC number: (1) that she was over 0.08 while driving and was coming down at the testing point or (2) that she was still absorbing while driving and did not hit 0.08 until after she was stopped.
Over defense objection, the jury was instructed, “When circumstantial evidence is susceptible to two interpretations, one that supports guilt and the other that supports innocence, the jury determines which is most reasonable.” Iverson argued giving this altered the standard of proof by allowing jurors to find guilt based upon whatever was “most reasonable” even if a less but still reasonable interpretation supported innocence. The Court affirmed, noting that the other instructions repeatedly informed jurors of the proof beyond a reasonable doubt standard. Quoting Sanchez, 2017 MT 192, the Court again held that this circumstantial evidence instruction does not relieve the State of its burden to prove guilt beyond a reasonable doubt.
Upon State concession, the Court ordered the $800 cost of counsel struck. Iverson was living on social security and food stamps and the district court had held regarding other fines and costs that she was unable to pay.
State v. Dodge, 2017 MT 318: Over defense objection, the district court imposed $14,000 in restitution upon Dodge’s DUI conviction for damage to a traffic light control box. The amount was based upon a letter and spreadsheet from Department of Transportation. Neither were signed under oath, and no one testified in support of the amount at sentencing. On appeal the State argued that the written list of expenses was good enough and that it was admissible evidence as a business record. The Court disagreed. While testimony may be allowed in lieu of 46-18-242’s requirement for an affidavit, there must be something under oath establishing the amount. The court remanded for a new restitution hearing.
State v. Reynolds, 2017 MT 317: Reynolds appealed his sentence, arguing the district court failed to correctly determine his ability to pay fines, fees, and costs (notably $5,829 in public defender costs). The Court disagreed, holding that the district court here had spent significant time considering ability to pay and that it did not abuse its discretion in imposing some hardship upon Reynolds. Although the district court did not directly question Reynolds himself about financial hardship, the Court was satisfied that defense counsel’s arguments that there would be hardship adequately covered the required inquiry. The Court remanded with instructions to strike two fees that were not imposed orally and removed the per count IT fees.
State v. Allison, 2017 MT 250N: A trooper approached a vehicle with out-of-state plates legally parked in a remote public campground on a warm day to inquire into the occupant’s welfare. Allison told the officer from the driver’s seat that he was getting drunk. Below the State convinced the district court that this was a valid community caretaker stop. However, on appeal, the State sought to abandon its community caretaker argument and to instead argue that there was no seizure here. The Court reversed the district court’s ruling, agreeing that community caretaker did not apply here because there were no objective facts that a citizen was in peril. The Court then refused to consider the State’s no-seizure argument because the State had not made that argument below.
State v. Llamas, 2017 MT 155: Llamas filed a speedy trial motion on 375 days of delay. The district court attributed nearly all the delay to the State (as institutional delay), but because defense counsel waived an evidentiary hearing there was no evidence of prejudice from the delay. Based on the record before it (which was silent as to the delay’s prejudicial effects), the Court affirmed the district court’s denial of the speedy trial motion.
On appeal, Llamas also argued that counsel was ineffective for waiving the speedy trial evidentiary hearing. The Court declined to reach this IAC claim as the existing record did not provide adequate information for the Court to evaluate counsel’s decision to waive the hearing. The Court noted that Llamas could present the claim through a petition for postconviction relief and held that if she does file a PPCR, she has established that the interests of justice require she be assigned counsel.
Justice McKinnon dissented. She would have held that counsel’s waiving an evidentiary hearing in a speedy trial claim was ineffective assistance and would have immediately remanded to conduct the speedy trial evidentiary hearing (rather than going through postconviction relief proceedings). Justice McKinnon would not have attempted to address the speedy trial claim on appeal as doing so without an evidentiary hearing is “futile.”
State v. Beaver, 2016 MT 332: A MT Department of Transportation officer stopped Beaver’s commercial truck, which eventually lead to evidence of intoxication and a DUI conviction. Beaver moved to suppress the stop. The lower court denied the motion on the basis that the MDT officer did not need particularized suspicion to spot and inspect the truck because commercial trucking is a closely regulated industry.
The Court affirmed, citing New York v. Berger, 482 U.S. 691 (1987), for the proposition that “As to persons engaged in ‘closely regulated’ enterprises with significant government oversight, the law recognizes that there is ‘no reasonable expectation of privacy.’” The Court cited a 9th Circuit decision recognizing commercial trucking as a closely regulated industry under Berger and agreed that commercial trucking is a closely regulated enterprise in Montana. 61-10-154(5) purports to authorize MDT officers to make “reasonable safety inspection of commercial motor vehicles,” and the Court held such warrantless inspections are necessary to enforce the applicable size and weight restrictions. The Court also observed that those involved in the trucking industry are on notice that they are subject to such inspections. [If you should happen to have case where this closely regulated industry exception is potentially in play, we would encourage you to look at last year’s U.S. Supreme Court analysis in City of Los Angeles v. Patel, 135 S.Ct. 2443, which requires the inspection regime to have “certainty and regularity” that constrains the officers’ search discretion.]
In re R.H., 2016 MT 329: This is an appeal from a basic-needs commitment and authorization of involuntary medication. R.H. is elderly and has various physical health problems. She also suffers from bipolar and anxiety disorders, for which she takes medications. After R.H. was evicted from her senior living facility due to altercations with other residents, she was at risk of being homeless and made a suicidal comment. The mental health evaluator opined that R.H. was unable to care for herself. R.H. was unable to secure other housing either because no one would take her or because of her own uncooperativeness. R.H. argued her inability to find shelter was not because of her mental illness (as required for DI commitment). The Court, however, affirmed the district court’s finding that R.H.’s bipolar condition and disorganized thinking were making her unable to provide for her own basic needs.
More interestingly, the Court reversed the district court’s order authorizing involuntary medication. The mental health evaluator testified that “we usually do recommend [involuntary medication], and I would in this case, too.” However, the evaluator also testified that R.H. had no history of refusing meds. The district court found that involuntary medication “may be necessary to facilitate treatment” because R.H.’s mental disorder could cause her to abruptly decide not to take her medication. The Court agreed with the district court’s finding that involuntary medication “may be necessary” in the future, but statutorily to order involuntary medication a district court must find that involuntary medication “is necessary.” The Court reversed the order authorizing involuntary medication here because “is necessary” is not satisfied by a finding of “may be necessary.” The Court reiterated that the evidence here was the R.H. had been taking her meds.
State v. Krebs, 2016 MT 288: The State charged Krebs with felony DUI, alleging three prior DUIs, including a 1988 conviction from North Dakota. Because of the then-applicable DUI statutes in North Dakota and the destruction of court records, in was impossible to say whether the 1988 conviction was for a BAC DUI or an under the influence DUI. The distinction mattered here because if the 1988 conviction was a BAC DUI, then it was expunged for Montana purposes after five years. Based on this uncertainty, Krebs challenged whether the State could prove that the 1988 conviction had not been expunged and still existed as a qualifying prior DUI conviction. Relying on Maine, 2011 MT 90 (a collateral attack case), the district court ruled that Krebs had the burden to prove that the 1988 conviction had been expunged.
The Court held that the district court’s (and State’s) reliance upon Maine was misplaced. In Maine the Court said that when a defendant is attacking a prior conviction as constitutionally infirm, the burden is on the defendant to affirmatively prove the conviction’s invalidity. But here Krebs admitted he was validly convicted in 1988. He was not making a collateral constitutional attack on the 1988 conviction; rather he was asserting that the State has the burden of proving that the 1988 conviction still exists and qualifies as a predicate for enhancing his present DUI to a felony. The Court agreed with Krebs and held unequivocally that it is the State’s burden to prove the fact of a prior conviction. Because it was undisputed here that no records existed to establish whether the 1988 conviction was a qualifying under the influence DUI versus an expunged BAC DUI, the State failed its burden. The Court, thus, reversed Krebs’s felony conviction.
(Krebs had argued in the alternative that if the 1988 conviction was an under the influence DUI (and, thus, not expunged), then it was not sufficiently similar to Montana’s DUI offense to count because North Dakota had interpreted its under the influence standard as requiring less than Montana’s. Because it reversed on the State’s failure to prove the conviction was not expunged, the Court did not reach the sufficiently similar claim.)