State v. Pressel, DA 21-0114
Pressel was a passenger in a vehicle that was stopped for the windows being too darkly tinted. The female driver was a probationer, and her probation officer authorized a vehicle search. Pressel was told he could leave and walked away without his large men’s jacket on the front passenger seat. The officer searched the jacket without obtaining a warrant and found methamphetamine. Pressel was charged with felony possession of dangerous drugs and filed a motion to suppress the evidence found in his jacket. The motion was denied, and he pled guilty, reserving his right to appeal. On appeal, Pressel argued he had a reasonable expectation of privacy in the compartments inside his jacket, and the State’s warrantless search violated his constitutional rights. After the opening brief was filed, the State conceded to reversal of Pressel’s conviction. The Court accepted the concession, reversed the denial of the motion to suppress, and remanded for the district court to vacate the conviction.
State v. Rossbach, 2022 MT 2 (briefing by James Reavis and Moses Okeyo)
After a first trial ended in jury deadlock, Rossbach was found guilty at a second trial of assault on a peace officer. His second trial was ultimately scheduled during a pre-planned vacation of Rossbach’s attorneys to Morocco. The judge denied a continuance. Rossbach was represented by new counsel at his second trial. Rossbach asked for a defense witness, a jail inmate, to testify in civilian clothing. The request was denied. On appeal, Rossbach challenged these two rulings as well as his PFO sentence.
Jail clothing: Most interestingly, the Court narrowly (4-3) affirmed refusing to allow the defense witness to change into civilian clothes. The Court “caution[ed] district courts against routinely requiring defense witnesses to appear in jail clothing, handcuffs, and shackles” and stated a hearing should be held to create a record for the “reasons for requiring such measures.” But the Court concluded the brief discussion held on the day of trial was sufficient, and, reviewing for an abuse of discretion, the Court upheld the denial given potential security risks of the witness’s history of violence and escape risk raised by jail staff. The Court also concluded any error was not prejudicial in light of the witness’s actual testimony.
Trial continuance: “Public defenders and prosecutors are without doubt entitled to responsibly scheduled vacations,” but the Court held there was no abuse of discretion in denying the continuance. The Court cited district court considerations such as a late witness notice the defense filed after the first trial that led to the scheduled trial date, a heavy trial docket, speedy trial concerns, and State expense.
PFO: Last, the Court affirmed the PFO sentence Rossbach had challenged as illegal because the qualifying felony per 2017 law was a 2001 robbery conviction that had been subsequently revoked several times. The Court concluded the sentences imposed upon revocation, the last of which Rossbach had been released from two months before this case, qualified the 2001 robbery as a predicate felony.
Dissent: Justice McKinnon’s dissent (joined by Justices Gustafson and Sandefur) would have reversed on the jail clothing issue. The dissent would hold that inmate witnesses may appear without shackles unless a compelling reason for restraints was found. The dissent also believed this particular witness’s testimony was pivotal. The dissent cited a wealth of cases and, in particular, held that making the witness wear prison garb for detention staff convenience furthered “no compelling state interest at all.”
State v. Steger, 2021 MT 321
Steger was convicted at trial of DUI, a fourth offense. At sentencing, when the district court was considering whether to impose the public defender fee, counsel informed the district court that Steger’s only income was SSI, was disabled (has a bad leg), and will have problems paying costs and fees, especially given the $4,600 fine. The district court waived the public defender fee but later imposed a $500 surcharge, which is also subject to a statutory ability to pay inquiry. The Court framed the issue on appeal as whether Steger’s trial counsel sufficiently objected regarding his ability to pay the surcharge given the conversation about his low income was in response to his ability to pay the $800 public defender fee and a “general objection.” The Montana Supreme Court held that Steger’s counsel sufficiently articulated the reasons he objected to the costs and the trial court should have known that the ability to pay inquiry also applied to the surcharge.
State v. Tome, 2021 MT 229:
T.C., a developmentally disabled and deaf thirteen-year-old, disclosed to two counselors at her school that Tome had raped her. After they called law enforcement, she gave conflicting accounts of the alleged incident to the investigating officer, a CPS/forensic interviewer, and a SANE nurse some 24-48 hours after the alleged offense. Tome moved to depose T.C. The court denied the motion, in part, because Tome would be able to fully cross-examine T.C. at trial. However, on the second day of trial, the State indicated it would offer the hearsay testimony of the five witnesses to whom T.C. made out-of-court statements regarding the incident, in the event she was found not competent to testify pursuant to Mont. Code Ann. § 46-16-221. The court found T.C. not competent to testify and declared a mistrial.
At Tome’s second trial, the district court held an evidentiary hearing under Mont. Code Ann. §§ 46-16-220 (child hearsay) and -221 (developmentally disabled person hearsay). When questioned by the prosecution and the trial court, T.C. was unable to distinguish between the truth and a lie. The district court concluded T.C. was unavailable, and her statements to the school counselors and CPS were nontestimonial, as they contained circumstantial guarantees of trustworthiness, and they were more probative of a material fact than any other evidence at trial—even though Tome had been excluded as a contributor to male DNA evidence found on T.C.’s underwear. All five witnesses testified to T.C.’s hearsay statements and the forensic interview was played for the jury.
Tome appealed arguing that testimony from the investigating officer, CPS/forensic interviewer, and SANE nurse was testimonial as it contained T.C. hearsay statements and he had not yet been afforded the procedural right to confront T.C.—a prior opportunity to cross-examine her—as guaranteed by the Sixth Amendment and Crawford.
The Court reversed for a new trial and held testimony from the investigating officer, CPS/forensic interviewer, and SANE nurse was testimonial in that the interviews were conducted 24-48 hours after the alleged offense as part of a police investigation where there was no “on-going emergency, and . . . the primary purpose of the investigation was to establish or prove past events potentially relevant to later criminal prosecution.” The interviews were not “informal and spontaneous,” and the persons conducting the interviews were all involved in evidence gathering, at least in part, for a future criminal prosecution. That T.C. “might not understand the details of the criminal justice system” and lacked competency to testify at trial “proves irrelevant to our conclusion: her statements were undoubtedly made for the primary purpose of furthering Tome’s prosecution.” In so concluding, the Court focused more on the primary purpose of the persons conducting the interviews than T.C.’s primary purpose in providing the information or her competence to form such a purpose—although the Court noted she had previously called law enforcement on her parents and thus “possessed at least some awareness of the purpose of law enforcement.”
The Court found Crawford’s procedural “requirement” for cross-examination “dispositive,” when the evidence at issue is testimonial. The Court explained the statement in the Supreme Court’s decision Idaho v. Wright (involving statements of a three-year-old to her pediatrician) to the effect that “the Confrontation Clause does not erect a per se rule barring the admission of prior statements of a declarant who is unable to communicate to the jury at the time of trial,” was dicta that pre-dated Crawford and was not applicable to testimonial statements. The Court reasoned that “Certainly, in cases involving nontestimonial evidence, the Wright/Roberts approach may apply. However, in cases such as this, where testimonial evidence is at issue, this Court remains bound by Crawford.” Because Crawford requires the prior opportunity to cross-examine T.C. before her testimonial statements can be admitted when she is unavailable for cross-examination at trial, and because Tome was denied the right to depose her pretrial, the Court concluded the district court erred when it allowed the jury to hear testimonial statements of T.C. from these three witnesses.
The Court further concluded the error was not harmless given the witnesses’ “specialized training in the field they were testifying about”—child sex abuse—and the graphic and detailed nature of their testimony and the video of the forensic interview. The Court also noted the DNA evidence excluding Tome as a contributor. The Court was not swayed by a jailhouse informant’s testimony that Tome had told him he was charged with “fucking a Jerry’s kid . . . You know, . . . a fucking retard,” and that he was “going to get off because he used a rubber.”
Justice Rice, writing for himself and Justice Baker, would apply Wright and find the statements were admissible--even if testimonial in nature under Crawford--because they were “so trustworthy that adversarial testing would add little to its reliability,” given the “time, content, and circumstances” of their making. Specifically, the dissent would find T.C.’s statements “particularly worthy of belief” because the initial disclosure began when T.C. became emotional and dysregulated in class, her specific statements were made spontaneously without prompting by the individual witnesses within one to two days of the incident, she was direct, linear, and to-the-point, she gave details, and she appeared to have the mental capacity to do so. The dissenters were willing to go as far as concede that admission of the forensic interview was error because “to the jury it had the appearance of direct testimony” and the video recording was not subject to cross—while the witnesses relaying T.C.’s hearsay statements were. However, they would still conclude that any error in its admission was harmless because Tome’s statement to the jailhouse informant “generally confirms T.C.’s recounting of the event.”
State v. Quinlan, 2021 MT 15:
Quinlan was tried for Incest against his 11-year-old daughter. At trial, Quinlan sought under Rule 608(b) to present extrinsic evidence of specific instances of his daughter lying to challenge her credibility. Observing that the lying instances occurred two years after the alleged Incest, the district court allowed Quinlan to ask about them on cross of the daughter but did not allow Quinlan to ask other witnesses about them. On appeal, Quinlan argued that after the daughter denied the instances of lying, the district court erred by not allowing him to controvert her testimony with extrinsic evidence of those specific lies. The Court disagreed. The Court observed that under 608(b) the district court could have permitted more extensive cross about the lying incidents but that 608(b) barred introduction of extrinsic evidence beyond such cross-examination of the daughter. The Court also rejected an argument under 613(b) that the daughter's testimony denying lying authorized introduction of her prior inconsistent statements about those incidents. The Court concluded that the daughter had denied lying but had not testified about the actual underlying events, thus, any prior statements about those events were not inconsistent to her testimony.
Quinlan also argued these evidentiary rulings violated his rights to confrontation of the witnesses against him. The Court noted other extensive cross of the daughter and held that the district court had properly exercised its discretion in imposing reasonable limits on Quinlan's inquiries into what the Court described as "largely childish untruths that bore no demonstrated relation to [daughter's] allegations against or relationship with Quinlan."
State v. Reams, 2020 MT 326:
The State charged Ream with incest against his 10-year-old stepdaughter. Pre-trial, the State gave notice of its intent to call background expert witnesses (including Wendy Dutton) to educate jurors regarding the general characteristics of child sexual abuse victims and disclosures. Reams sought to call his own educational expert witness (a psychology professor) to educate jurors regarding the causes and phenomenon of false reports of sexual abuse. On State objection, the district court excluded Reams’s expert as unqualified to be a child credibility expert under the Scheffelman, 250 Mont. 334, criteria.
The Court reversed. The district court erred in applying the heightened Scheffelman criteria to Reams’s proffer educational expert. Even if an expert is offered for the purpose of undermining or supporting a child’s credibility, the Scheffelman requirements apply only where the expert directly comments on the specific child’s credibility. Background expert testimony that only indirectly bears on credibility is governed by normal Rule 702 analysis: It’s admissible if it is specialized knowledge that will help the jury understand some fact in issue. The Court explicitly recognized that the testimony sought by Reams regarding why children might make false reports “is not qualitatively different from testimony the State elicited from Dr. Dutton [about] why a child may delay reporting sexual abuse.”
The Court also rejected the State’s harmless error argument that Reams was able to elicit the same information from the State’s experts on cross. The Court emphasized that defendants have both the right to confront the witnesses against them and the right to present a complete defense and that the two rights are “not an either/or proposition” in which exercising the right to cross a State witness gives up the defendant’s right to call his own witnesses. Depriving Reams of presenting his own educational expert in his case-in-chief and of using his own expert to rebut the State’s experts required reversal and remand for a new trial.
State v. Brandt, 2020 MT 79:
Brandt was tried and sentenced for six common scheme counts arising out of his defrauding elderly investors. On appeal, he argued statutory double jeopardy (46-11-410) barred these multiple convictions. Specifically, he argued he could only be sentenced for the Fraudulent Practices offense because the Exploitation of an Older Person, Theft by Embezzlement, Failure to Register as a Securities Salesperson, Failure to Register a Security, and Operating a Pyramid Promotion (Ponzi) Scheme offenses were all part of the “same transaction” and were all either included in the common scheme Fraudulent Practices (46-11-410(2)(a) or a specific instance of it (46-11-410(2)(d)).
The Court agreed all of the offenses, as charged, were part of the “same transaction.” “Same transaction” looks at the defendant’s underlying factual conduct and purpose, not the offense elements. Here, all of Brandt’s crimes were motivated by a common objective to induce and steal investments. The Court also noted the State had charged all the offenses as “common scheme” and the jury had been instructed it had to find all the acts were motivated by the purpose to accomplish a single criminal objective or plan. (The Court notes—and Justice Rice emphasizes in a separate concurrence—that the Court is bound by the State’s choice not to charge distinct offenses for each separate victim.)
The Court then considered whether any of these same transaction offenses were included offenses or specific instances of Fraudulent Practices. In contrast to “same transaction,” this analysis looks at the statutory elements of each offense, not at the case’s particular facts. The Court also reiterated its shorthand that a hallmark of separate offenses is that “acquittal on one charge will not affect the others.” Here, the Court held that Theft by Embezzlement is an included offense of Fraudulent Practices, as charged, because the Fraudulent Practices here had embezzlement as an element. The Court reversed this Theft conviction and remanded the case for resentencing.
However, the Court held the other four offenses each require proof of elements that Fraudulent Practices does not and vice versa. (For example, Exploitation of an Older Person requires proof the victim was over 65 which Fraudulent Practices does not, and Fraudulent Practices requires offering or selling a security, which Exploitation of an Older Person does not.) Similarly, they are not specific instances of the other because where each offense requires proof of an element which the other does not, there cannot be a specific instance of conduct which is included in the other offense. Justice McKinnon (joined by Justice Gustafson) dissented to the degree that they would have held Fraudulent Practices, Exploitation of an Older Person, and Operating a Ponzi Scheme to also be included offenses.
State v. Running Wolf, 2020 MT 24:
While his DUI-4th charge was pending, Running Wolf picked up a DUI-5th. The State gave notice of its intent to seek PFO designation based upon these two felony DUIs. Running Wolf was 42-years old with no other prior felonies. Running Wolf was sentenced after July 1, 2017, and argued the new, more ameliorative PFO definition should apply to him. The Court already rejected this argument in Thomas, 2019 MT 155, and did so again here. More interestingly, in a single sentencing hearing the district court contemporaneously sentenced Running Wolf for both DUIs and used the DUI-4th as the predicate to PFO Running Wolf on the DUI-5th. It gave him a straight 10-year sentence with no Warm Springs Addiction, Treatment, & Change (WATCh).
The Court ordered supplemental briefing on whether the predicate felony conviction for a PFO designation must precede the commission of the PFO’d offense? The 2015 PFO statute said, “A ‘persistent felony offender’ is an offender who has previously been convicted of a felony and who is presently being sentenced for a second felony . . . .” Running Wolf asked the Court to overrule its prior cases (Williamson, Hamm, and Anderson) and hold that the predicate felony conviction must precede the new offense’s commission.
The Court agreed and read the statute’s plain language as requiring the existence of a felony conviction prior to becoming an offender by committing a new offense. The Court noted that the 2017, ameliorative changes to the PFO definition were consistent with this understanding. The Court’s previous holdings had refused this plain reading out of a belief that the Legislature could not have intended to create such a window of opportunity for defendants to run amok without PFO consequences. The Court explicitly overruled these prior decision as exceeding the Court’s role in interpreting legislation’s plain language. The Court also held that its prior PFO holdings were contrary to statute’s rehabilitation and recidivist correction purposes. Justice Baker (joined by Justices Rice and Shea) wrote a dissent primarily articulating her belief in the principle that if the Legislature actually disagreed with the Court’s historical interpretation of a statute, the Legislature would have acted to revise the statute to correct the Court’s misunderstanding. Because the Legislature has not changed the relevant PFO definition language, the Court’s existing interpretation of that language should control. Justice Rice wrote a second dissent to more directly address what he sees as the current Court’s broad willingness to overturn settled precedent. He champions stare decisis and the reliance interests it protects. Justice Shea wrote a third dissent to explain that while he probably agrees with the Majority’s statutory analysis, he cannot conclude that the Court’s prior, contrary holdings are “manifestly wrong” as required to deviated from stare decisis.
State v. Haithcox, 2019 MT 201:
Haithcox met Hibbard online and moved to Montana to live with her. During Haithcox’s aggravated assault/kidnapping trial, the State presented evidence that Haithcox variously manipulated Hibbard, called her racial slurs, drank and lied about money, and had contemporaneous relationships with other women. Citing Guill, 2010 MT 69, the Court upheld admission of this evidence through the transaction rule as being “inextricably intertwined” with the charged assault because it explained tensions in the couple’s relationship, Haithcox’s motive in assaulting Hibbard, and Hibbard’s delays in reporting the assault. [I can’t explain why the Court sometimes employs the transaction rule in place of a 404(b) analysis; however, I don’t believe a 404(b) analysis would produce a different result. The Court explicitly states, “[T]he transaction rule may not be used to admit propensity evidence that would otherwise be excluded by Rule 404(b).”] The Court further noted the district court’s use of a limiting instruction and held under Rule 403 that the risk of unfair prejudice did not substantially outweigh the evidence’s probative value.
Haithcox also argued the prosecutor committed misconduct by unnecessarily emphasizing racial slurs Haithcox used against Hibbard (who is part native) and slurs Haithcox’s brother used against Haithcox (who is black) to evoke racial stereotypes and inflame the jury. The Court invoked plain error review but then denied the claim, holding that the State used evidence of slurs against Hibbard to demonstrate tension and motive, not to incite racial bias, and that the slurs against Haithcox were just part of a properly admissible conversation in which Haithcox admitted guilt. The Court also found no problem with the prosecutor’s use of race during voir dire, concluding that the prosecutor’s objective was to eliminate jurors who might be prejudiced against an alleged victim who belonged to a racial minority.
The State obtained a warrant to search Haithcox’s phone for text, calls, emails, and internet search, but police instead downloaded the phone’s entire contents. Haithcox moved to suppress, arguing that this exceeded the scope of the warrant. On appeal, the Court avoided the issue by holding that at trial the State had not actually used any information that fell outside of the items explicitly specified in the warrant. The Court also declined to consider a claim related to Hibbard giving police electronic access to Haithcox’s phone because the issue had not been raised below.
State v. Thomas, 2019 MT 155:
Thomas committed a felony DUI in 2016 but was not sentenced until July 27, 2017. We argued that since he was sentence after HB 133’s 7/1/17 effective date, he should be subject to HB 133’s less severe PFO definition (under which he would not be a PFO). The Court disagreed (4-3). The Court distinguished its prior holding in Wilson, 279 Mont. 34 (that defendants get the benefit of ameliorative changes unless the legislation contains a savings clause clearly providing otherwise) by holding that the Legislature clearly preserved application of the old PFO law for offenses committed before July 1, 2017, through HB 133’s applicability clause (“[This act] applies to offenses committed after June 30, 2017.”). The Court noted that by doing so, the Legislature avoided creating incentives for defendants to hinder the judicial process in order to delay their sentencing dates until the new law took effect. (Because Justice Gustafson recused herself, the four-vote majority included District Court Judge Karen Townsend plus Justices Rice, McKinnon, and Sandefur.)
Justice Baker, joined by Chief Justice McGrath and Justice Shea, would have held that because HB 133 has no explicit savings clause and because its applicability provision refers to “criminal offenses,” not sentencing laws such as PFO status, HB 133 does not contain the required “clear expression of legislative intent” to deny the ameliorative changes to defendants sentenced after its effective date.
State v. Reeves, 2019 MT 151:
Reeves was leaving a brewery parking lot on an icy, winter afternoon. A deputy was leaving a parking lot on the opposite side of the road in what is essentially a four-way intersection with the deputy and Reeves facing each other across the road. Because the deputy got to the intersection first, he had the right of way but the deputy just sat there. So Reeve also sat there. The deputy says Reeves had a “deer-in-the-headlights” expression. After waiting 8-10 seconds, Reeves signaled a left hand turn. After another 2-4 seconds, he made a legal left-hand turn, passing in front of the deputy. The deputy then stopped him, leading to a DUI. The deputy did not identify any traffic violation by Reeves.
The State’s argument was that leaving a brewery, deer-in-headlights expression, waiting 10-14 seconds before leaving the lot, and not signaling immediately all added up to particularized suspicion that Reeves was driving under the influence and attempting to avoid the deputy. The Court rejected that argument: “When the only basis for suspecting a specific person of wrongdoing is inferences that could be drawn from the conduct of virtually any law-abiding person, the resulting suspicion cannot, by definition, be particularized.” The Court noted that leaving a brewery is not illegal or suspect and that Reeves’s delay and conduct at the intersection “could readily be explained by Deputy Terrill’s failure to claim his right of way.” The “deer-in-headlights” look provided no additional indication of DUI. The Court reversed and remanded for suppression and dismissal of the DUI charge.
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, the 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.
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.)