MTACDL - Home



2019 Case Summaries(March 5, 2019, to March 10, 2020)Koan MercerThis document is an editorialized summary of those Montana Supreme Court and United States Supreme Court criminal law decisions that I found of interest as a Montana state public defender. It is not a comprehensive account of all opinions from the period and, in particular, coming from a state-court perspective, neglects federal statutory and procedural decisions. Topics:PleasSentencingRevocations Procedural Rights Double JeopardySpeedy Trial, Due Process, and Statutory DelayAppeal and Collateral Review MechanismsSearch and SeizureEvidentiary IssuesOffenses and Instructions 1. Pleas and Plea AgreementsAn Alford plea is a guilty plea, not a no contest plea; Alford pleas to sex offenses are allowedLawrence v. Guyer, 2019 MT 74:? This was a pro se habeas petition that the Court decided to resolve through a published opinion, rather than the usual order.? Lawrence tried to get out of his Alford pleas to felony sex assaults by arguing that Alford pleas are included within 46-12-204(4)’s prohibition against no contest pleas in sex offenses.? The Court disagreed, holding that an Alford plea is not the same thing as a no contest plea.? An Alford plea is a plea of guilty and, thus, is not barred by 46-12-204(4) prohibition on nolos.? Court bound by parties understanding of plea agreement (Non-Cite)State v. Gotschall, 2020 MT 13N:? This is a non-cite, but it is an interesting data point regarding a sentencing court deviating from the parties’ understanding of a plea agreement. Gotschall pled guilty to incest pursuant to a (1)(b)-appropriate disposition agreement that provided for the State recommending a 25-year MSP sentence with no time suspended.? The written agreement did not specify whether the district court could impose a parole restriction.? However, during the sentencing hearing, after the SO evaluator recommended a parole restriction, the prosecutor warned the district court that the way the parties understood the agreement, such parole restriction would trigger Gotschall’s right to withdraw his plea.? The district court imposed a 25-year parole ban.? The district court then refused to allow Gotschall to withdraw his guilty plea, reasoning that the written agreement was silent as to a parole restriction.? ????????????????? On appeal, Gotschall argued that despite the written agreement’s silence, because the parties had explicitly told the district court during sentencing that they’d agreed to a promise of parole eligibility, the district court erred by imposing parole ineligibility without offering Gotschall the opportunity to withdraw his plea.? The Court agreed.? “Even if a promise is not included in the written plea agreement, if the parties inform the court there is more to the agreement than what is in writing, the court must accept the additional terms as part of the agreement.”? The Court reversed and remand for the district court to give Gotschall the opportunity to withdraw his guilty plea.??????????? 2. SentencingA. Limits and ProceduresJudicial reweighing of aggravation/mitigation in collateral, captial proceedingsMcKinney v. Arizona, 18-1109: Following a habeas grant finding the Arizona courts had failed to consider mitigating evidence, the Arizona Supreme Court reweighed the aggravating and mitigating circumstances itself and re-imposed death. McKinney argued he was entitled to resentencing by a jury. The Court (5-4) rejected his claim, holding that during such collateral review of a pre-Ring case, the reweighing of aggravating and mitigating circumstances can be done by a judge, rather than a jury.Argument for specific sentence preserves claim longer sentence unreasonable Holguin-Hernandez v. United States, 18-7739: The Court unanimously interpreted the Federal Rules of Criminal Procedure as providing that a defendant who argues for a sentence less than 12 months, preserves for appeal a federal sentencing policy claim that the 12-month sentence eventually imposed was greater than necessary to accomplish the goals of sentencing. Prior “felony” for deferred ineligibility is determined by the prior’s maximum potential sentence, not by the sentence actually imposedState v. Nelson, 2019 MT 62:? Nelson pled to felony drug possession.? The parties agreed to recommend a deferred if Nelson was eligible.? 46-18-201(1)(b) provides that you can’t get a deferred if previously convicted of a felony.? Nelson had an Arizona conviction for second degree escape, which Arizona describes as a class five felony with a two year maximum sentence.? Nelson’s actual Arizona sentence was 17 days in jail with a year of probation.? The dispositive question, thus, became whether “felony” for 46-18-201(1)(b) purposes is judge by the potential maximum sentence or the actual sentence imposed.? 45-2-101(23) defines “felony” as used in Title 45 based upon the sentence actually imposed.? However, the Court held that the plain language in 46-18-201(1)(b) that “felony” there must be determined regardless of “whether or not the sentence was imposed, imposition of the sentence was deferred, or execution of the sentence was suspended” expands the definition of “felony” for 46-18-201(1)(b) purposes to include potential sentences.? The Court said this was consistent with other statutes such as those setting the court’s jurisdiction and the statute of limitations off of the maximum potential sentence being a felony.? Nelson’s Arizona conviction, thus, made her ineligible for a deferred.? ?Cannot sentence for both felony murder and included predicate; applies retroactively on habeasKills on Top v. Guyer, OP 18-0656:? Back in 1988, Kills on Top got convicted of felony murder (using agg kidnapping as the predicate offense), agg kidnapping, and robbery.? The case has had years of litigation since then resulting in his original death sentence being vacated and a new sentence imposed in 1998 of 40 for the robbery, life for the felony murder, and life without parole for the agg kidnapping, all running consecutively.? Kills on Top, now 60, filed a pro se habeas petition arguing this sentence violates statutory double jeopardy under 46-11-410 and Russell, 2008 MT 417.? The State argued Russell was an anomaly and in any case is not retroactively applicable to Kills on Top’s long-ago final judgment.? The Court was having none of it:? Russell clearly makes multiple punishments for felony murder and the included predicate offense illegal and Whitehorn, 2002 MT 54, makes such double jeopardy rulings retroactive.? The Court struck the life without parole sentence.? The State filed a petition for rehearing seeking remand for resentencing. The Court denied the petition with Justices Baker and McKinnon dissenting. ???Re-sentencing before new judge where district court denied defense continuance for SO evaluator to testifyState v. Webber, 2019 MT 216:? Webber (30) pled to dating and having sex with a 15-year-old coworker.? The girl’s mother found out about it and went to the police.? Webber waived Miranda and admitted the relationship.? Pre-plea, Dr. Scolatti did an eval, recommending a Level 1 designation and an MSP term sufficient to allow completion of Phase I.? Webber pled pursuant to an agreement for a recommendation for a 10-year suspended sentence.? After plea, the district court (Pinski) said that a pre-plea eval is “not valid” and ordered an updated eval from Dr. Scolatti.? The updated eval supported the agreement’s suspended sentence and continued to recommend a Level 1 designation.? Sentencing was continued twice because the PSI and updated eval were not complete and then a third time because defense counsel and the judge had a trial conflict.? The defense moved—without objection—to continue sentencing a fourth time from Wednesday to Friday because Dr. Scolatti could not be present on that Wednesday.? The district court denied the continuance—explaining only that it was the defendant’s fourth motion to continue—and held the sentencing hearing without Dr. Scolatti, the defendant’s only witness.? ???????????????? At sentencing, the district court disparaged Dr. Scolatti and his updated report.? As an example, the Court recounts that the district court “referred to a portion of Dr. Scolatti’s evaluation as ‘an obnoxious[,] offensive, absurd, repulsive statement’ made by ‘the Defendant’s hand-picked evaluator[.]’”? The district court also relied upon the harsher recommendation in Dr. Scolatti’s initial report even though the district court had previously itself described that pre-plea report as “not valid.”? In the end the district court imposed a Level 2 designation and a sentence of 60 years with 10 suspended.? During the hearing, defense counsel repeatedly voiced the need for Dr. Scolatti’s testimony.??????????? On appeal, Webber challenged the district court’s refusal to grant the continuance to allow Dr. Scolatti’s testimony.? Reviewing for an abuse of discretion, the Court unanimously agreed and reversed:? “When a continuance is requested and is reasonable under the circumstances, it is an abuse of discretion for a district court to refuse to grant the continuance.”? Citing the “unusual circumstances of this case,” the Court also ordered that Webber’s resentencing would occur before a new district court judge.? [Of note, while the Court faults the district court “creating its own misinformation and then sentencing Webber in accordance with that misinformation,” legally this appeal was of a continuance denial, not a review of the sentence itself.] Statute authorize fine “or” jail does not authorize imposition of both; Officer overtime cannot be imposed as “costs of prosecution”Great Falls v. Loch, DA 17-0601: ?Loch was convicted of failing to notify a property owner of damage under 61-7-107 and of failure to give notice of an accident under 61-7-108.? He was sentenced to both fines and jail (mostly suspended) on each offense.? However, the relevant penalty statute, 61-7-118(1), provides that “the offender shall be punished by a fine of not less than $200 or more than $300 or by imprisonment for not more than 20 days.”? (Emphasis added.)? Loch argued—and the Court ordered upon State concession—that this statute does not authorize imposition of both a fine and jail.??????????? Upon State concession, the Court struck officer overtime wages purportedly imposed as “costs of prosecution” under 46-18-232. ?Loch argued that wages paid by the City to its police officers are not disbursements made by the prosecution and are, thus, not “costs of prosecution” under the statute.? B. Time-served creditState credit for pretrial custody tolls federal probation periodMont v. United States, 139 S.Ct. 1826: This is a statutory decision interpreting federal supervised release (probation).? The Court held (5-4) that time spent in state pretrial custody tolls a defendant’s federal supervised release period if the defendant is eventually given credit for the pretrial custody towards a state conviction.? (This tolling only applies for periods of incarceration longer than 30 days.)? The upshot for us is that if you have a client in pretrial custody who is also on federal supervised release, his federal supervised release clock will not have advanced if the pretrial time is eventually credited against a state conviction.? [Thus, there may be situations in which a client whose federal supervision period would otherwise have expired may not want his pretrial time credited against his state sentence.]? Time-served credit for second case depends on whether still in county jail vs. at MSP?Stang v. Guyer, OP 19-0691:? This order comes from a pro se habeas petition seeking additional time-served credit.? Stang was sentenced to MSP on Case A on 8/1/2018 and given 384 credit for time-served.? On 5/30/2019, he appeared by video on Case B and was given a concurrent DoC sentence with the same 384 days of credit.? The Court refused him additional credit in Case B for the time between Case A’s sentencing and B’s.? However, somewhat interestingly, the Court tied denial of that credit to Stang seeming to have been physically transferred to MSP during that period.? The Court dismissed Stang’s petition without prejudice, apparently leaving open the possibility that he would be given credit if he could show that he was still being held in pretrial detention during this period.? [This seems a departure from the usual analysis that looks at the legal basis for the incarceration rather than its physical location.]Accrual of time-served for D on conditional release stops at conditional release terminationBrasda v. Kaululaau, OP 19-0286:? This was another pro se habeas petition. Brasda was out on conditional release as part of an existing DoC sentence.? On 4/17/18, he got arrested for a felony DUI and was unable to make bail.? On 5/4/18, there was a DoC disciplinary hearing (conducted at the local jail) as a result of which Brasda was transferred to MSP on 5/7/18.? This terminated his conditional release status.? Brasda filed a habeas petition trying to get credit for the 246 days between his DUI arrest and his eventual 12/18/18 DUI sentencing.? The Court disagreed, holding that Brasda is only due credit on the DUI for the period between his DUI arrest and when he was transferred to MSP.? Once his conditional release was terminated, he was in custody on that existing sentence and, thus under Kime, 2002 MT 38, not due credit towards the new charge even though bail remained set in the new case.? [Here, the Court used the transfer to MSP to mark the termination of his conditional release status, but beware that parole or conditional release status might be terminated by a disciplinary or parole board hearing even though the person is not physically moved to MSP.] ???????Time in custody on two, separate, bailable offenses credited to case sentenced firstState v. Parks, 2019 MT 252:? While on pre-sentencing release for this Deer Lodge offense, Parks got charged and arrested for a new offense in Butte.? Bail was set on the Butte offense and on an arrest warrant revoking Parks’s release in the Deer Lodge case.? Parks spent 22 days in the Butte jail.? Reasoning that the 22 days in Butte were related to the Butte charge, the district court refused to give credit for the 22 days towards the Deer Lodge sentence.? Parks had not yet been sentenced on his Butte matters.? The Court reversed and ordered the credit.? Because Parks was held in Butte on bail for both the Butte and Deer Lodge offenses, he is eligible to have the time credited towards his Deer Lodge sentence.? Put differently, he is entitled to credit because he would still have been held in custody on the Deer Lodge offense even if he had posted bail on the Butte offense.? (However, the Court reminded, “Presentence time should only be credited ‘once against the aggregate of all terms imposed when multiple sentences are imposed consecutively.’”? Thus, Parks could not get credit in Deer Lodge for other pretrial time that was already credited towards a prior sentence in Great Falls to which the Deer Lodge sentence was apparently set to run consecutively.)Time-served credit does not reduce parole restriction imposed with calendar dateSharp v. Guyer, OP 19-0130:? Sharp filed a pro se habeas petition with various illegal sentence and procedurally barred merits claims. The Court denied it.? Of interest, the Court accepted the State’s argument that where a district court imposes a ten-year parole restriction “as of today’s date” that parole restriction period is not affected by the defendant’s credit for time-served.? [I suspect wording like no parole “for the first ten years of his sentence” could produce a different result.]C. PFO and StackingNew, ameliorative PFO law does NOT apply to anyone with an offense date prior to 7/1/17State v. Thomas, 2019 MT 155:? Thomas committed a felony DUI in 2016 but was not sentenced until July 27, 2017.? He 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.? [Of potential interest to future legislative interpretation arguments, Justice Baker made great use of the Montana Legislative Services Division’s Bill Drafting Manual, which I do not think I’ve seen before.]???????? Predicate conviction for PFO must precede commission of new offenseState 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 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.? [The opinion contains a good summary of the standard and cites for deviating from stare decisis and also for minimizing the impact of the Legislature’s silence following prior interpretation decisions.]??????????? 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. ??????????Federal conviction from national park does not count towards DUI stackingState v. Blair, DA 19-0148:? Upon State concession, the Court reversed Blair’s felony DUI sentence because one of the three predicate convictions relied upon by the district court was a conviction in federal court for a DUI in Yosemite National Park.? [61-8-734(1)(a) provides:? “For the purpose of determining the number of convictions for prior offenses referred to in 61-8-465, 61-8-714, 61-8-722, or 61-8-731, ‘conviction’ means a final conviction, as defined in 45-2-101, in this state, conviction for a violation of a similar statute or regulation in another state or on a federally recognized Indian reservation .?.?. .”? That is, the DUI statute does not count federal convictions that aren’t from a reservation.]Alaska DUI sufficiently similar to count for stacking purposesState v. Lund, 2020 MT 53:? The State charged Lund with felony DUI based on three priors from Alaska.? Lund moved to dismiss, arguing the Alaska convictions could not count for stacking purposes because Alaska’s DUI statute was not sufficiently similar to Montana’s.? Lund argued Alaska’s statute is dissimilar because it allows for conviction under a lesser standard of impairment than in Montana’s DUI.? Alaska’s statute requires “a level of impairment that renders the driver incapable of operating a motor vehicle with the caution characteristic of a person of ordinary prudence who is not under the influence.”? Previously, in McNally, 2002 MT 160, the Court recognized that a Colorado law allowing for a DUI conviction where the ability to drive was affected to the “slightest degree” was not sufficiently similar to Montana’s “diminished” ability to drive standard.? The Alaska Court of Appeals has held Alaska’s DUI statute to be similar to Arizona’s, and Arizona’s uses the same “slightest degree” language as the Colorado statute held dissimilar by our Court in McNally.? Lund argued that logically, since Alaska has held its statute to be similar to Arizona’s and the Arizona language is dissimilar to Montana’s, then the Alaska statute must be dissimilar to Montana’s. ????????????????? Rejecting this logic, the Court affirmed the district court’s denial of Lund’s motion to dismiss.? The Court held that although the Alaska and Montana statutes use different language, they are sufficiently similar because “both require a reduction in ‘ability’ or capability to operate a motor vehicle,” both “require more than just drinking and driving,” and both “require the consumption of alcohol or drugs to affect a person’s ability to drive.”? Alaska’s “incapable of operating a motor vehicle with the caution characteristic of a person of ordinary prudence who is not under the influence” standard equates to Montana’s “diminished” standard.D. ConditionsNo alcohol/gambling conditions struck for lack of nexus (Non-Cite)State v. Heidinger, 2019 MT 300N:? This is a non-cite, but it is an interesting data-point in our continuing struggle against automatic imposition of the Department’s standard conditions. Heidinger pled guilty to Negligent Homicide for making a bad pass and getting her passenger killed.? She was sober and had no criminal or chemical dependency history.? The district court imposed a $50,000 fine and 20-year sentence suspended upon various conditions including no drug/alcohol, no gambling/casinos, and a sobriety/drug monitoring program.? Heidinger questioned the lack of factual nexus for these conditions.? The district court said it was imposing them so that she’d have money to pay the fine.? Upon State concession, the Court struck all of the alcohol- and gambling-related prohibitions for lack of a nexus.? [Most of these no alcohol and no gambling conditions are standard Department conditions from ARM 20.7.1101(9)–(10), and yet a no-nexus argument succeeded in getting them struck.? Keep up the fight.]Banishment condition struckState v. Langley, DA 17-0730:? Upon State concession, the Court ordered struck from Langley’s sentence a condition requiring him to reside outside of the Eleventh Judicial District (Flathead, Lake, and Lincoln Counties).? No-contact-with-kids conditions struck from adult SIWC sentence State v. Mehan, 2019 MT 100:? Mehan pled to SIWC for raping an unconscious woman outside a bar.? At sentencing, over defense objection, the district court imposed the full list of no-contact-with-kids conditions.? Mehan argued the conditions were unreasonable because they had no Ashby nexus to either Mehan or his offense.? The Court agreed and struck the conditions.? The Court summarized that “Mehan does not have a record of prior sexual offenses involving minors or adults, he has not failed to complete mandated sex offender treatment, and his psychosexual evaluations positioned him at a low-moderate risk to reoffend.”? Taken together these facts established that there was not a sufficient nexus between either Mehan or his offense and no-kid-contact conditions and that the district court abused its discretion when imposing the conditions.E. Collateral Consequences “Burglary” under ACCAQuarles v. United States, 139 S.Ct. 1872: The Court applied the a categorical approach to hold that “burglary” as used in the Armed Career Criminal Act covers state burglary convictions where the offense is defined as “remaining in” a structure with the intent to commit a crime regardless of whether the intent to commit the other crime was formed at the moment the defendant first unlawfully remained or as some other time.? “Serious drug offense” under ACCAShular v. United States, 18-6662: The Court unanimously held that the categorical approach analysis of the federal sentencing enhancement for having prior “serious drug offenses” requires the federal sentencing courts to compare the statutory elements of the proposed, prior, state drug offenses only to the federal statute’s description of “serious drug offense” conduct. This statutorily identified conduct—“involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance”—does not require consideration of a generic serious drug offense. (Shular argued such a generic offense would require a mens rea element of knowledge that the substance is illicit.)Nondelegation challenge to SORNA rejectedGundy v. United States, 139 S.Ct. 2116: The federal Sex Offender Registration and Notification Act (SORNA) creates federal failure to register penalties.? In it, Congress gave the Attorney General the authority to “specify the applicability” of SORNA’s registration requirements to folks convicted before SORNA’s enactment.? The Attorney General decided SORNA would apply in full.? This case challenged that Congress unconstitutionally delegated legislative power when it authorized the Attorney General to decide whether SORNA’s requirements would apply to pre-Act folks.? The Court held the provision did not violate the nondelegation doctrine because Congress had made clear its intent that the requirements should apply to pre-Act folks as soon as feasible (that is the Court interprets “specify the applicability” to mean “specify how to apply,” not “whether to apply”).? F. Money and property issuesMandatory 35%-of-drug-value fine statute is unconstitutional: sentencing judge must consider whether fine is excessive for the specific offense/defendantState v. Yang, 2019 MT 266:? Yang pled to possession of 144 pounds of marijuana as the passenger in her ex-husband’s car.? Pursuant to 45-9-130(1), the district court fined her $75,600 (35% of the pot’s value).? Yang gets $721 a month in Social Security and $172 in food stamps.? For the first time on appeal, Yang challenged this fine as a facial and as-applied violation of the constitutional prohibition against excessive fines.? Under its Lenihan exception for reviewing un-objected-to illegal sentences, the Court will review facial challenges to a statute but not as-applied challenges to a particular sentence.? The Court, thus, reviewed only Yang’s facial challenge.? The Court held that the mandatory 35% fine at 45-9-130(1) is facially unconstitutional because it requires the fine in every case without allowing the sentencing court to consider whether the resulting fine is excessive in the particular case.? This mandate improperly precludes the sentencing court from considering the fine factors set out in 46-18-231(3) (nature of offense, resource of defendant, burden payment will impose).? [The analysis here would seems to support an argument the 46-18-231(3) factors still must be considered when imposing any mandatory fine; but the Court does distinguish the 45-9-130(1) fine from other mandatory fines because the 35% fine has no upper limit.? The Court notes the $15,000 35% fine upheld in Tam Thanh Le, 2017 MT 82, was less than the offense’s general max fine of $50,000.]? The Court remanded “for recalculation of Yang’s fine consistent with Opinion.? (The Court affirmed the imposition of various other fees and costs over an inability to pay challenge because Yang had agreed to them in the plea agreement.) ????????????? Justice Baker, joined by Justice Sandefur, would have rejected the facial challenge because 45-9-130(1) is not excessive in all of its applications, but would have invoked plain error review and remanded for consideration of Yang’s as-applied challenge to her particular fine.? Justice Rice, also joined by Justice Sandefur, would, like Justice Baker, have held 45-9-130(1) facially constitutional because it is not unconstitutional in all of its applications, see Tam Thanh Le (upholding at 35% fine).? Justice Rice also objected to the Court’s elevation of 46-18231(3) to constitutional stature and believes the Eight Amendment proportionality analysis looks at only the gravity of the offense, not the financial resources of the particular defendant.? Justice Rice agreed with the Majority that an as-applied challenge was not preserved for appeal and would have punted it to PCR.? ?(He also seemed skeptical that $75,600 was an excessive fine for transporting 144 pounds of marijuana.)? ?Restitution reduced to amount D caused or agreed to payState v. Nelson, DA 18-0183:? Upon State concession, the Court cut Nelson’s restitution by about half to the amount he had agreed to pay.? Nelson pled to exploitation of an older person for his use of checks and credit cards belonging to an elderly man for whom Nelson’s girlfriend was caring.? The girlfriend pled to felony theft.? The district court impose joint and several restitution upon Nelson for the elderly man’s full loses.? Nelson objected to the imposition of loses that were not cause by his own conduct, including checks and credit card purchases that occurred prior to Nelson meeting either the girlfriend or the elderly man.? Nelson argued the district court erred when it ordered Nelson to pay the entire amount because the State failed to prove, and Nelson did not admit, that his criminal offense caused the damages or that he was legally accountable for his girlfriend’s criminal acts.Restitution for different offense struckState v. Fahnestock, DA 18-0561:? Fahnsestock apparently pled to Theft for possession of stolen property, and the State dismissed the actual Burglary.? Over objection, the district court then imposed restitution for property damage caused during the Burglary. Fahnsestock argued the district court lacked authority to impose this restitution because it did not arise from his possession of stolen goods offense.? Upon State concession, the Court ordered the Burglary damage restitution struck and remanded to determine restitution for the Theft conduct.No restitution for wages paid to defendant; Restitution for hours employees spent cooperating with prosecution must be for wages paid, not the billable value of hours spentState v. Lowry, 2019 MT 191:? Lowry pled nolo to Theft by Embezzlement for not returning a company laptop after he stopped coming to work.? Lowry worked for the company for about a month as an engineer.? The company presented testimony that he did not upload his work, requiring other employees to recreated it after he left.? In addition to other uncontested amounts, the district court ordered $13,989.31 in restitution for (1) the wages paid to Lowry for the lost work, (2) wages paid to Lowry for time off and training during the period he worked for the company, and (3) the billable value of hours the company president and staff spent assisting law enforcement.??????????? The Court reversed (1) and (2), citing Brewer, 1999 MT 269, for the “general rule” that “wages an employer pays to a defendant are not recoverable as restitution.”? Thus, while restitution was properly imposed for the lost billable value of Lowry’s work, it was error to also impose restitution for Lowry’s wages for the lost work or for the cost of Lowry prior time off and training.? Such previously paid wages are not a “pecuniary loss” and are not recoverable in a civil action and, thus, cannot be imposed as restitution.? ??????????? As to (3), while restitution is allowed for a “cash payment or outlay” that the company incurred in cooperating with the prosecution, that amount would be what the company paid the president and staff for the hours spent, not the billable value of those hours (as was imposed here).? The Court remanded for the district court to determine the wages paid to cooperate with the prosecution.??? Unauthorized payment plan fees reversed on appeal despite ’s agreement to them at sentencingKalispell v. Salsgiver, 2019 MT 126:? Salsgiver was convicted in muni court of criminal mischief. When Salsgiver said at sentencing that he could not immediately pay the full fine, the muni court had him sign a written agreement allowing installment payments in exchange for an additional $10 contract fee and 10% annual interest.? The written sentence also prohibited him prepaying the monthly installments.? The fee, interest, and prepayment ban are not authorized by any statute and are, thus, illegal.? Because this issue was not raised in muni court or during the district court appeal, the Court needed to use the Lenihan exception (under which the Court will consider facially illegal sentences for the first time on appeal) to reach the claim.? However, in Micklon, 2003 MT 45, the Court limited the Lenihan exception to not apply where the defendant “acquiesced or actively participated” in the illegal sentence’s imposition.? The Court responded here by reversing Micklon:? “Notwithstanding a defendant’s active acquiescence, participation, or agreement, an otherwise illegal provision of a sentence cannot allow for the imposition of a sentencing condition bereft of statutory authority.”? The Court reiterates that the Lenihan exception remains limited to illegal sentences (which the court inherently lacked the power to impose); it does not allow appeal of trial errors without objection. ??The Court, thus, ordered the $10 fee, interest fee, and prepayment ban be struck.? (The installment plan itself remains because it is authorized by 46-18-234, -236(4).)Claim regarding lack of evidentiary hearing denied because D did not sufficiently requested hearing belowState v. Johns, 2019 MT 292:? A jury found Johns guilty of Embezzlement from a bank.? The PSI included an affidavit from a representative of the bank for $19,406.80 in restitution.? The amount included the $7,103.00 in embezzled money plus $12K in expenses the bank claimed it incurred investigating and assisting in the prosecution.? Johns filed a brief challenging the restitution request.? On appeal, the Court characterizes this brief as challenging the legal basis for the claimed expenses. ?The State filed a response arguing such costs are legally recoverable.? The State’s brief also noted that it needed to correct the actual amounts somewhat and requested a hearing regarding the facts underlying the restitution request.? The district court ordered the full $19,406.80 subject to the State’s forthcoming correction.? The order invited the defense to file any additional objections to the amount prior to the final scheduled sentencing hearing.? Johns filed various continuances but never filed anything challenging the amount of restitution.? At the final sentencing, the bank’s representative supplied new restitution figures.? The defense objected to the new amount, stating “We still stand by our original position in our brief.”? The district court impose the new restitution amount. ??????????? On appeal, Johns argued the district court erred by imposing the restitution amount without an evidentiary hearing.? The Court disagreed, holding that Johns never requested an evidentiary hearing or contested the factual basis of the amounts. ?“If, as Johns now asserts, a hearing was crucial to address all amounts the Bank claimed, she should have made that request in her initial brief and explained her position to the District Court when it invited additional exceptions or during the final sentencing hearing.”? (The Court analysis makes no mention of the State’s request for an evidentiary hearing.)? The Court also declined Johns’s requests for plain error and Lenihan review. ???????????? Justice McKinnon, joined by Justice Gustafson, dissented.? They would have held that Johns’s restitution brief did ask for an evidentiary hearing and that both parties presented a clear factual dispute as to whether the bank’s different expenses were incurred to recover the money or to assist the State’s prosecution.? The dissent also did not believe Johns was required to filed additional objections after the district court had issued its restitution order.? [While we obviously agree with the dissent that the objections here were sufficient, the hard reality is that if you want an evidentiary hearing, you must explicitly and repeatedly request one until you either get one or you get the sentencing court to explicitly say on record that it is denying your request for an evidentiary hearing.? Also, even if the State asks for a hearing, you must yourself independent ask for a hearing to preserve denial of that hearing for appeal.]Defendant must be given restitution credit for payments made by defendant’s insurance to victimsState v. Santoro, 2019 MT 192:? Santoro was convicted of two counts of Criminal Endangerment related to his driving. Santoro appealed the district court’s failure to credit towards restitution the $50,000 Santoro’s insurance had already paid out.? While a defendant does not get credit for payments made by the victim’s insurance, the defendant must be given credit for payouts to victims from the defendant’s own policies.? The Court ordered that $50,000 paid out by Santoro’s insurance must be credited against the restitution awards.? DC lacks independent authority to alter restitution order (Non-cite)State v. Charles, 2019 MT 295N:? This is a non-cite, but is a good example of the principle that judges can’t alter a final judgment. Charles petitioned pursuant to 46-18-246 to modify her long-ago imposed restitution.? With the State’s support, in June 2017, the district court issued an order setting Charles’s restitution balance at $4,473.18 and waived any remaining interest.? Later, DoC sent the district court an ex parte email saying Charles still owed an extra $51,000 in interest, and in January 2019 the district court altered its June 2017 order to include this additional interest.? Charles appealed.? The Court reversed, agreeing with Charles that once the district court issued its June 2017 order, that order became the final judgment and the district court lacked authority to alter a final judgment absent a new petition by the defendant.? The Court ordered the addition of the $51,000 be vacated, leaving the restitution owed back at $4,473.18.? ?G. Execution of sentenceAs-applied challenge to lethal injection deniedBucklew v. Precythe, 139 S.Ct. 1112: The Court (5-4) rejected a death row inmate’s argument that his lethal injection execution would violate the 8th Amendment because it would cause him unusually severe pain due to his particular, rare medical condition. The Court faulted the inmate for failing to suggest a viable alternative method of execution.?Denial of DPHHS’s petition to release from MSH reversed In re Capser, 2019 MT 215:? Capser began exhibiting signs of schizophrenia when he was eighteen.? He was placed on a community commitment and involuntarily committed to MSH.? In 2000, after being discharged from MSH, Capser shot and killed his father.? Capser had stopped taking his medication at the time of the shooting.? After Capser pled to deliberate homicide, the district court found that he was unable to appreciate the criminality of his behavior and committed him to the custody of DPHHS for 110 years with 30 suspended.? In 2017, DPHHS filed a petition with the district court pursuant to 46-14-312(3) asserting that Capser no longer represented a substantial risk of harm and seeking his transfer to a non-custodial group home.? At a hearing, DPHHS presented testimony that in his 14 ? years at MSH, Capser has become a model patient who understands that his present mental stability is attributable to his maintaining a disciplined regimen of medication and psychiatric therapy and that he has never threatened or assaulted anyone in those years.? Capser’s family also wrote the district court in support of Capser’s move to a group home.? The district court denied the petition, finding that Capser was not cured of his mental illness, that he had previously killed his father while on conditional release from MSH, that the suggested group home lacked adequate safeguards and medication monitoring, and that Capser remained a danger.??????????? Reviewing for an abuse of discretion, the Court reversed and remand for the district court to fashion a release order.? Based on the unanimous testimony of the hearing witnesses, the Court rejected the district court’s findings that Capser’s medication would not be monitored appropriately at the group home and that he was a danger.? The Court also noted that the district court was incorrect that Capser was on conditional release from MSH when he killed his father.? More importantly, since new medication in 2001, Capser has been entirely medication compliant and non-violent.? In conclusion the Court said:The District Court’s finding infers that a person suffering from schizophrenia will always be deemed a danger to themselves or others—regardless of unanimity of professional opinion otherwise—as it is impossible to eliminate any chance that the person will stop taking his or her medications. ?If the District Court’s decision were upheld, it would mean that for those suffering from a mental illness that cannot be ‘cured,’ the statute allowing for a review of sentence essentially does not exist..?????????? .?????????? .The court’s decision to deny the petition was not within its discretion but was instead based on a generalized apprehension that something unfortunate might occur in the future. ?As such, the decision was an abuse of discretion.Justices Rice, McKinnon, and Sandefur dissented and would have affirmed under the abuse of discretion standard.? They believed DPHHS petition’s assertion that Capser is not a danger as long as he complies with continued treatment was insufficient to satisfy 46-14-312(3)(c)’s requirement that he “is not a danger.”? The dissent also saw the district court’s denial as a rejection of the particular release plan, not of the possibility of Capser being released under a more secure plan.3. RevocationsImposing a new, increased mandatory minimum sentence in a revocation is unconstitutional United States v. Haymond, 139 S.Ct. 2369: Haymond’s original federal conviction carried a possible sentence of zero to ten years.? Haymond subsequently violated the terms of his supervised release.? ?Under the normal supervised release revocation provision, that exposed him to two additional years of prison.? However, there is a mandatory 5-year minimum if the judge finds the violation is—as Haymond’s was—possession of child pornography.? [I don’t think we have anything like this in Montana.? Our parole or probation revocations only expose defendants to serving the remainder of their sentences or (for deferreds) sentences that could originally have been impose.? This federal provision exposes a revocation defendant to an additional mandatory minimum beyond the sentence authorized by the jury’s original verdict.] ??????????? Four Justices held that imposing this new mandatory minimum without a jury finding as to the trigging facts violates Apprendi/Alleyne.? Justice Breyer, casting the fifth vote to reverse the sentence, wrote separately to say that he, like the dissent, would not apply Apprendi in the supervised-release context.? But he thinks this particular revocation enhancement provision is unconstitutional because it “more closely resemble the punishment of new criminal offenses, but without granting a defendant the rights, including the jury right, that attend a new criminal prosecution.”? He then cites Alleyne.? [Because the lead opinion only got four votes, we can’t say, “Apprendi applies to revocations,” but the Court has held that a revocation scheme that imposes new mandatory minimums based upon a judge finding that the defendant has committed a new offense is unconstitutional.] New offense sentence controls as to concurrent/consecutiveBoggs v. McTighe, OP 19-0313:? The Court originally denied Boggs’s pro se habeas petition seeking to have the DoC run his new offense sentence concurrent to his revocation sentence as ordered by the new-offense judge.? With the assistance of counsel, Boggs sought rehearing.? The Court withdrew its prior denial and ordered that Boggs’s sentences do run concurrently.? The change is worth five years to Boggs.? [It also confirms the understanding that where a defendant has an existing suspended sentence from County A and then gets sentenced for a new offense in County B and then has his suspended sentence in County A revoked, it is the judge in County B who gets to determine whether the County B sentence will run concurrent or consecutive to the County A sentence.? The revocation in County A is not a new sentencing, so the judge in County B is the second sentencing judge and gets to decide how the County B sentence will run as to the exist County A sentence.? Put differently, if—as here—the County B judge has set the sentences to run concurrently, the revocation judge in County A cannot set them consecutive upon revocation because that would be imposing a longer sentence upon revocation in violation of 46-18-203(7)(a)(iii).] Statutory “absconding” finding for revocation upheldState v. Oropeza, 2020 MT 16:? On probation for a deferred sentence, Oropeza tested hot and then failed to report for three months.? He continued to live and work in the same place.? The district court found this was absconding, a non-compliance violation, and revoked Oropeza’s deferred.? The question below and on appeal was whether Oropeza’s three months of no-contact was a compliance violation (failure to report) ?or non-compliance violation (absconding).? If Oropeza’s violation was absconding, then 46-18-203(7) authorized the district court to revoke his deferred sentence without any additional findings regarding the MIIG.? 46-18-203(11)(a) defines absconding as “when an offender deliberately makes the offender’s whereabouts unknown to a probation and parole officer or fails to report for the purposes of avoiding supervision, and reasonable efforts by the probation and parole officer to locate the offender have been unsuccessful.” The Court upheld the district court’s absconding finding here because Oropeza was aware of his obligation to report and that his PO was looking for him and because the PO made “reasonable efforts” to locate Oropeza by visiting his house twice, making calls to his place of employment, contacting his girlfriend, and having another PO (at a chance store encounter) tell Oropeza to contact his PO.? (The Court did suggest it would have been “a better practice” for the PO to also leave notes at Oropeza’s residence advising him that failure to report would be considered absconding.)? [While the threshold for absconding is pretty low, the upside of this opinion is that absconding is a question the State has to prove to the district court, not just a status label P&P gets throw on at their whim.? In dicta, the Court also says revoking a defendant for a compliance violation requires proof of both MIIG exhaustion and that the defendant will be unresponsive to further MIIG efforts.] ???Revocation for compliance violation affirmed where district court essentially or implicitly found D would not be responsive to further efforts under the MIIG (Non-cite)State v. Mabrey, 2020 MT 22N:? This is a non-cite, but it contains the Court’s first interaction with the new statutory requirements for revocation based upon a compliance violation. On appeal, Mabrey argued the district court did not have authority to revoke his suspended sentences for a compliance violation because the court had not found—as required by 46-18-203(8)(c)—that Mabrey would not be responsive to further efforts under the MIIG.? The Court, however, held the district court’s finding that Mabrey’s conduct necessitated a more structured placement with DoC was “essentially finding” that Mabrey would be unresponsive to further efforts under the MIIG.? The Court also invoked the doctrine of implied findings.? [While it didn’t work out factually here, it is worth remembering that under 46-18-203(8)(b) a compliance violation + MIIG exhaustion = placement in a DoC facility for up to 9 month.? A compliance violation + MIIG exhaustion does not authorize revocation.? As the Court recites here, revocation for a compliance violation requires the judge to find under 46-18-203(8)(c) that “the offender’s conduct indicates that the offender will not be responsive to further efforts under the incentives and interventions grid.”] ????????4. Procedural Rights A. DiscoveryPhotos stored by jail call system were newly discovered evidence warranting a new trialState v. Chavis, 2019 MT 108:? This was a self-defense PFMA trial.? Chavis’s defense relied upon his testimony of having been struck in the face and having developed a black eye. ?During closing, the State attacked Chavis’s claim by arguing that there was no evidence of Chavis actually having a black eye.? The jury convicted.? Pretrial Chavis had requested discovery of any exculpatory materials, including photos, in the possession of law enforcement or of anyone cooperating with the investigating authorities. ???A week or two after trial, Chavis learned that the call log function of the Telmate phone system at the Billings jail had stored photos of his face taken a few days after the incident.? The photos showed a black eye consistent with Chavis’s account.? (It is undisputed that neither the prosecutors nor the defense knew the photos existed prior to trial.)? Chavis filed a timely motion for new trial or dismissal, making both a Brady claim and a new trial claim based on discovery of new evidence.? The district court concluded that there was a reasonable probability that the photos would have changed the trial outcome and that they were in the State’s possession but denied the claims based on its assessment that the State did not suppress the photos and that Chavis could have obtained them himself through reasonable diligence.? ??????????? On appeal, the Court reversed and remand for a new trial based on the newly discovered evidence claim.? (The Court, thus, did not reach the Brady claim except to note per Reinert, 2018 MT 111, that Brady does not have a reasonable defense diligence requirement.)? Such newly discovered evidence claims are governed by 46-16-702(1) and the five-part test from Clark, 2005 MT 330.? Four of the Clark factors were not in dispute:? (1) the photos were discovered after trial, (3) were material, (4) were not cumulative or merely impeaching, and (5) had a reasonable probability of changing the trial outcome.? As to the remaining (2) prong—whether failure to discover the photos sooner was the result of lack of diligence by the defense—the Court held that because the call log system was under the jail’s exclusive control and the system did not advise inmates it automatically stored pictures of them, the district court abused its discretion in concluding that Chavis had a duty to discover the photos. ?Noting that Sheriff’s Office was well aware that the system took and stored call photos, the Court admonished, “the State, not Chavis, should have known of and discovered the photographs long before this matter went to trial.” ???Brady claim for lost DUI video fails for lack of proof that it would have been favorable State v. Robertson, 2019 MT 99:? In a drug possession and DUI case, Robertson advanced a Brady claim regarding the jail mistakenly recording over the ?DUI booking video.? While the Court did not sanction the State’s failure to preserve the requested video, it held Robertson had failed to establish a Brady violation.? In particular, nothing in record established that the video would have been favorable or could have changed the trial outcome giving the evidence of impairment arrayed against Robertson.Discovery sanctions within district court’s discretionState v. Pope, 2019 MT 200:? In a prior appeal, the Court had held that the State violated the discovery statutes by not turning over an interview the CA’s investigator recorded with the complaining witness during the first day of Pope’s trial.? Leading up to trial, the witness had given an exculpatory account to defense counsel, but in the new interview, the witness reverted to inculpatory accusations against Pope.? In the prior appeal, Pope’s requested and awarded remedy for this discovery violation was remand for the district court to consider sanctions.? Upon remand, Pope asked the district court for a new trial “or any other sanction the Court feels is appropriate.”? The district court financially sanctioned the County Attorney but decline Pope’s request for a new trial because Pope was not prejudiced by the non-disclosure since Pope already knew the complaining witness had changed her story once and had truth problems.? On appeal from that sanction decision, the Court held:? “While a new trial as a sanction for the State’s discovery abuse certainly would have been within the District Court’s discretion in this case, its ultimate decision to deny a new trial due to a lack of prejudice and issue financial sanctions against the State was also within its discretion. ?We do not substitute our decision for that of the District Court.”? The Court also emphasized that Pope had asked for remand for the district court to determine the sanction and then received the “any other sanction” for which he had alternatively asked the district court.Statutory request for personnel files subject to privacy balancing City of Bozeman v. McCarthy, 2019 MT 209: Relevant to the appeal claims, McCarthy was convicted of Resisting Arrest and Obstructing a Peace Officer following a jury trial in a muni court.? Pretrial, the defense sought and was denied the arresting officers’ pre-incident personnel files.? (The muni court did order disclosure of the incident’s use of force reports.)? The Court declined to consider McCarthy’s Brady/Giglio arguments, holding that they had not been sufficiently preserved below.? The Court instead considered only the claim that “substantial need” mandated disclosure of the files under 46-15-322(5).? The Court held that a statutory “substantial need” request is subject to being balanced against the officers’ right of privacy under the Montana Constitution.? McCarthy’s “cursory assertion” of substantial need below was insufficient to tip the balance in favor of disclosure of the officer’s pre-incident personnel records.B. Counsel Self-representation properly denied where defendant’s reason for requesting self-representation shows lack of understanding State v. Jones, 2020 MT 7:? Jones was charged with assault with a weapon and agg assault against his girlfriend.? At his first omni, Jones asked to represent himself.? After a Faretta inquiry, the district court agreed and continued the omni.? During the new omni, Jones knelt down in the courtroom and started crying.? The district court questioned Jones’s fitness and reappointed counsel.? Later Jones again requested to represent himself, and the district court again made a Faretta inquiry and denied self-representation.? Jones explained his meltdown at the prior omni was caused by his having just received a report (which turned out to be false) that his girlfriend had committed suicide.? On appeal, Jones argued that during this inquiry, the district court incorrectly relied upon Jones’s lack of lawyering shills and education.? The Court disagreed, holding that the district court did not deny self-representation based on Jones’s lack of education and legal skills.? Rather, the Court held, Jones’s explanation for why he wanted to represent himself (to find out if his girlfriend was still alive and get out OR) demonstrated that his waiver of counsel was not knowingly made (since his custody status was not related to his representation status).? Moreover, the Court noted, when Jones again asked to represent himself a month later, he was allowed to do so and represented himself for the rest of the case.? In dicta, the Court also suggested, “Enforcement of the self-representation right may become problematic where it affords a defendant the opportunity to personally intimidate or interrogate the victim.”?????????Appointment of counsel over Defendant’s objection not violation of right to self-representation where Court interprets Defendant as subsequently requesting different counselState v. Marquart, 2020 MT 1:? Marquart was eventually found guilty at a bench trial of burglary, theft, and violation of an order of protection arising out of his divorce.? Marquart is a former law enforcement officer.? At his request, he was allowed to represent himself for the first few months of his case.? A month in, the State suggested Marquart was not fit to proceed and “noticed up” a competency hearing.? After emailing with the prosecutor and clerk of court, Marquart refused to appear at the “noticed up” competency hearing because it had never been set by a court order.? The district court put out a failure to appear warrant, conducted the hearing without Marquart, and then ordered a fitness eval.? The eval reported that Marquart was bright, knowledgeable, and fit to proceed but that he “may be diagnosed as having Delusional Disorder, Persecutory Type.”? A later, MSH eval confirmed his fitness.? As a result of the warrant and fitness proceedings, Marquart spent 14 months in pretrial custody.??????????? Based upon the eval and possible Delusional Disorder, the State sought and succeeded in having counsel appointed over Marquart’s objections.? Over the next eight months, Marquart continued to file pro se motions and to assert his right to self-representation, but he also sent the district court complaints about appointed counsel and requests for different counsel.? A week before the scheduled trial, the district court again asked Marquart whether he wanted to represent himself at trial.? Marquart answered, “it’s not my intention to represent myself, but it’s my intention to have another attorney.”? He asked for “a change of counsel.”? ??????????? On appeal, Marquart argued his right to self-representation was violated.? (Of note, in addressing Marquart’s claims, the Court held expiration of the 1-year deferred sentences did not render the appeal moot because a successfully dismissed deferred could still have “the potential to impact [Marquart’s] future job prospects or work to his detriment in a court of law.”) The Court held that despite Marquart’s initial requests for self-representation and the district court’s appointment of counsel over Marquart’s objection, Marquart’s request for self-representation was equivocal.? The Court reasoned that while a defendant is not obligated to continually reassert his desire to represent him once he has clearly stated his request and been denied, Marquart’s pre-trial answer that it was not his intention to represent himself made the totality of his position equivocal.? His right to self-representation was, thus, not violated.? ??????????? Justice McKinnon, joined by Justices Gustafson and Sandefur, dissented. They believed that given Marquart’s initial, unequivocal request for self-representation and the district court’s clear denial of that request, Marquart’s subsequent complaints about the attorney the district court was forcing upon him did not render his position as to self-representation equivocal.? The Dissent also would have held the district court erred in denying Marquart self-representation based upon an eval that said he was fit.? IAC for failing to present favorable witnessState v. Santoro, 2019 MT 192:? Santoro backed over and killed a man.? Santoro claimed self-defense because the man was reaching into Santoro’s vehicle and choking him.? At trial, the State presented eyewitness accounts from the man’s friends and argued in closing that after backing over the man, Santoro had pulled forward and run over him a second time.? Defense counsel attempted to present the investigating Highway Patrol Trooper’s contrary crash-scene analysis that Santoro had only run over the man once, while reversing.? However, the Trooper had moved out of state, and defense counsel failed to make arrangements to compel his trial attendance.? The jury found Santoro guilty Negligent Homicide and two counts of Criminal Endangerment (relating to the nearby witnesses).??????????? Santoro appealed the Negligent Homicide conviction, arguing that counsel provided ineffective assistance by not obtaining the Trooper’s testimony for trial.? The Court agreed, remanding for a new trial.? Because the record established that counsel recognized the Trooper as a material witness whose testimony would contradict the State’s theory of guilt and that counsel’s failure to secure the Trooper as a witness was not planned or intentional, counsel’s failure was deficient performance subject to direct appeal review.? Counsel’s deficient performance prejudiced Santoro’s defense because the Trooper’s conclusion that Santoro only hit the man once, while reversing, would have directly supported Santoro’s trial defense and discounted the State’s theory of guilt.??? IAC claim re: allowing police/ interviews and criminal history must wait for PCRState v. Sawyer, 2019 MT 93:? Sawyer was convicted of deliberate and attempted deliberate homicide following a jury trial.? Sawyer shot three men who he feared were taking him into the woods to kill him and argued self-defense at trial.? Sawyer did not testify, but the State put in two police interviews with Sawyer.? The interviews included information regarding Sawyer’s prior incarceration and violent criminal history (purportedly offered by the State to explain how Sawyer knew one of the men from prison).? Sawyer sought a new trial on appeal, arguing that he had received ineffective assistance due to counsel’s failure to object to this violent criminal history evidence.? The Court, however, held the IAC claim would have to wait for a PPCR and could not be reviewed on direct appeal because the record was not clear as to why counsel did not object.? Although the district court ultimately did not allow the defense to use the videos for this purpose, there was a plausible justification for counsel not objecting to the State’s admission of the interview evidence because the defense was seeking to use the same videos to present Sawyer’s self-defense claim without Sawyer having to take the stand.?IAC claim here regarding allowing evidence of probation status must wait for PCRState v. Ward, 2020 MT 36:? Ward was tried for PFMA.? At trial, it repeatedly came out that he was on probation at the time and arrested for drinking.? On appeal, Ward argued counsel was ineffective for not keeping information about Ward’s probation status out of the trial.? The Court, however, held the claim could not be reviewed on direct appeal because the record was silent as to why counsel did not object and counsel could have had a plausible reason for wanting Ward’s probation status in evidence.? (The Court gave as an example that counsel might have wanted the probation evidence to support the alleged victim recantation story that she has previously, falsely accused Ward of assault because she was mad at him for drinking on probation.) OPD cannot be appointed for non-jailable misdemeanorsOPD v. Fagenstrom, 2019 MT 104:? Fagenstrom, a Justice of the Peace in Cascade County, ordered OPD to assign counsel for a misdemeanor Theft-1st charge where jail was not a potential sentence.? OPD sought supervisory control, arguing the Judge was ordering OPD to act in excess of OPD’s statutory duty and authority.? The Judge argued that the defendants had a constitutional right to counsel.? The Court agreed to exercise supervisory control because OPD has no right of direct appeal in this situation.? The Court reversed the appointment of counsel, holding that 46-8-101(2)-(3) “manifestly provides that the assistance of counsel at public expense is not available regarding a charged misdemeanor that is either not punishable by incarceration by definition of the offense or in regard to which the court may discretionarily waive incarceration as a penalty by order at the defendant’s initial appearance.”? Because first-offense Theft doesn’t have a jail penalty, OPD has no statutory authority to assign counsel to such a charge.? Under 46-8-101(3), appointment of counsel also becomes unavailable if the trial court waives incarceration as a sentencing option at the defendant’s initial appearance.? These statutory limitations on appointment of counsel are constitutional, the Court holds, because the constitutional right to counsel only applies to offenses punishable by incarceration.? Citing Nichols, 511 U.S. 738, and Spotted Eagle, 2003 MT 172, the Court says this is true “regardless of whether an uncounseled misdemeanor may later be a basis for sentencing enhancement upon a subsequent conviction for a jailable offense.”? The Court concludes by reminding courts and the State that if they are uncertain about criminal history at charging, they can make appropriate inquiries “prior to further proceedings” [which appears to be a caution to the State and trial courts to make sure they mean it before treating a charge as non-jailable and proceeding without appointment of counsel].? C. Judges and JurorsBatson reversal in part based upon prosecution’s prior conductFlowers v. Mississippi, 139 S.Ct. 2228: The Court held that the prosecutor’s use of preemptory challenges to remove black jurors violated Batson.? The Court relied upon the prosecution’s history of removing black jurors in Flowers’s five prior trials, upon the prosecution asking black prospective jurors many more questions that white prospective jurors, and asking black jurors follow up questions about who they knew in the community that were not asked of white jurors.?Jury trial right for offenses with potential jail greater than six months is not waived by mere nonappearanceKalispell v. Salsgiver, 2019 MT 126:? Salsgiver was charged in muni court with PFMA and criminal mischief.? He was ordered to personally appear for all future proceedings, warned that not showing would result in waiver of jury trial, and given the date for his omni. ?Salsgiver did not appear for the omni (although his counsel did).? The muni court waived jury trial for failure to appear. ?After Salsgiver was eventually arrested, he asked for a jury trial.? The muni court denied the request, again ruling that he’d waived jury trial by failing to appear at the omni.? Salsgiver was convicted of both charges following a bench trial.??????????? The Court has previously held (Sherlock, Cox, Trier) that under Article II, Section 26 of the Montana Constitution, the Montana jury trial right may be waived by failing to appear personally as directed.? Although the Court went out of its way here (citing Girard) to say that such nonappearance does not automatically waive jury trial, it affirmed that Salsgiver’s nonappearance was such a Montana waiver.? The wrinkle here is that, at least as to the PFMA, Salsgiver was asserting his federal, not Montana, jury trial right.? The Sixth Amendment guarantees a jury trial for “serious” crimes (max penalty greater than six months) but not for “petty” crimes (max penalty six months or less).? Because Salsgiver’s criminal mischief was a “petty” crime, the federal right did not apply and his waiver by nonappearance was affirmed under the Montana Constitution (since Salsgiver did not provide circumstances disputing his ability to appear).? PFMA, however, is a “serious” crime implicating the federal right.? As to such constitutional rights, the State bears the burden to prove by a preponderance of the evidence that waiver was knowing, intelligent, and voluntary.? The Court explicitly holds that its previous Montana waiver cases (Cox, Trier, Girard, Sherlock) are not applicable to the Sixth Amendment waiver analysis for “serious” crimes. ?A Sixth Amendment waiver “cannot be presumed solely from a defendant’s knowledge of his release conditions and subsequent failure to appear.”? Here, Salsgiver never made any representation that he wanted to waive jury trial, and the preponderance of the evidence in the record did not establish a knowing, intelligent, and voluntary wavier.? The Court also rejected the State’s argument for application of the “waiver by conduct” or “forfeiture with knowledge” standard from the Confrontation Clause case of Illinois v. Allen.? The Court remanded the PFMA charge for a jury trial.? (Justice Rice, joined by Justice Baker, dissented and would have found a waiver under federal law because the record shows that Salsgiver intentionally chose not to appear knowing the consequences and gave no explanation for his absence.)State concession of invalid jury waiver; New trial before a different judge due to gender-demeaning commentsState v. Harris, DA 18-0092: ?Linda Harris was charged with two counts of felony Theft by Embezzlement. ?She pled no contest and a restitution hearing was held. ?After hearing testimony at the restitution hearing challenging the alleged losses, the district court questioned why she had pled no contest and asked if she wished to withdraw her plea. ?Defense counsel withdrew Harris’s no contest plea and asked for a bench trial. ?Harris never filed a written jury waiver, and the district court did not ask personally Harris whether she was waiving her right to a jury. ?The district court said it would take “judicial notice” of the evidence presented at the restitution hearing and use it as evidence against her in the bench trial. ?Harris was subsequently found guilty through a short bench trial. ?At sentencing, the district court stated that crimes such as embezzlement are “women’s crimes” and men rarely embezzle, that women who embezzle are serial offenders, and that DOC needed to take this into consideration when making parole determinations. ?On appeal, the State conceded Harris did not get a fair trial when the district court used the restitution hearing evidence to determine guilt and prejudged Harris as guilty, and the Court ordered a new trial in front of a different judge.New trial ordered due to denial of for-cause challenge following rehabilitation w/ leading questionsState v. Johnson, 2019 MT 68:? A jury found Johnson guilty of felony PFMA.? During voir dire, defense counsel questioned the potential jurors about their ability to acquit if the State proved the assault but not the partner element.? One juror expressed “a problem” with that distinction.? She later repeatedly spontaneously came back to the topic and volunteered her concerns.? Her final statement was:? “I would try to not let that affect me, but I just truthfully think it would.”? After the defense challenged her for cause, the State rehabilitated her by getting her to agree with one-word “yes” answers that she would follow the judge’s instructions as to the partner element even if doing so would be difficult for her.? The district court then denied the challenge without explanation.??????????? The Court reversed and remanded for a new trial.? The Court explained at length that jurors come into the process with lots of different experiences, knowledge, and opinions.? The question for removal is not whether a juror initially expresses such things or some resulting concerns about his or her ability to be fair and impartial.? Rather, “[t]he dispositive question is whether the totality of the juror’s statements and referenced circumstances raise a serious question or doubt about his or her willingness or ability to set aside any such matter to fairly and impartially render a verdict based solely on the evidence presented and instructions given.”? If a juror makes an initially suspect statement, the parties and judge may properly investigate that further with open-ended questions; however, it is improper for counsel or judge to attempt to rehabilitate a juror through leading questions, such as whether the juror will follow the law or instructions.? Reversal was required here because of the juror’s spontaneous, emphatical assertion of having a real problem with requiring the State to prove the partner element.? The prosecutor’s leading rehabilitation was exactly what the Court has repeatedly warned the State not to do.? “We again strongly caution that coaxed recantations are improper and are ‘merely fodder for appeal’ at ‘major expense and inconvenience’ to all.”Spontaneous preconceptions reaffirmed during questioning required juror’s for-cause removalState v. Anderson, 2019 MT 190: After the preemptory challenges but before the final jury was sworn, a juror in a SIWC trial told the bailiff that he had a “leaning” based upon the types of questions defense counsel had asked during voir dire and was “pretty sure the Defendant is guilty.”? The district court and parties brought the juror in and questioned him.? He voiced “a slight bit of preconception,” but also said the he believed he could be impartial and that he would “100 percent try.”? Asked about Anderson perhaps not testifying, the juror said that “an innocent man has nothing to hide.”? After a lengthy question/statement by the judge, the juror said he “can absolutely keep an open mind.”? The district court? denied the defense motion to remove the juror.??????????? The Court reversed, holding the juror’s statements “raised serious questions regarding this ability to be a fair and impartial juror.”? The Court reaffirmed that people who enter the courtroom with preconceptions can still be qualified to serve as jurors if they express a clear willingness to put those preconceptions aside and presume innocence.? The juror here, however, made spontaneous statements of bias and then during questioning reaffirmed his leaning towards guilt and “tacitly resisted recanting it several times.”??? Denial of for-cause challenge affirmed where juror expressed concerns but ultimately said he could be fairState v. Block, 2019 MT 180:? This was a step-daughter incest trial.? The district court denied Block’s for-cause challenge to a prospective juror whose children had grown up with the alleged victim’s natural, non-custodial father.? Although the juror expressed concern because of his past relationship with the natural father, he had not had any contact with the natural father in decades and had never met the alleged victim in this case.? Giving deference to the trial judge who was able to evaluate the prospective juror in person, the Court affirmed.? The Court reiterated that trial courts need not remove prospective jurors who express concern about impartiality but ultimately say they can be fair.? The Court faulted the district court for describing the natural father as a simple fact witness—thereby minimizing the potential bias from juror having a past connection to the natural father of the alleged incest victim—but “[d]espite the misstep,” the Court did not feel the district court inappropriate coaxed rehabilitation recantations from the juror.? [As a noteworthy, positive point, the Court did continue its endorsement of the removal standard as “whether a serious question exists about a prospective juror’s ability to be fair and impartial.”]Making accusations of judicial biasIn re Estate of Boland, 2019 MT 236: This a civil case relevant to us because one side’s attorneys suggested in motions that the district court judge (Pinski) might be biased against their client.? Things went poorly for them.? The long and short of it is:? (1) don’t make bias accusations or aspersions against a judge unless you have concrete proof and (2) if you are going make such accusations, do so through the formal disqualification procedure laid out in 3-1-805.? (The case also has an interesting concurrence by Justice Baker about the role of judicial campaign contributions.) ?D. TrialA bifurcated trial is the proper approach for dealing with the prior DUIs element of Aggravated DUI State v. Holland, 2019 MT 128:? Holland appealed from her Aggravated DUI conviction, arguing that the justice court erred by permitting the State to introduce evidence of her prior DUI convictions during trial.? Holland asked the justice court to bifurcate her trial to have the jury decide the standard DUI elements before hearing evidence regarding and deciding the aggravating (prior DUIs) element.? She argued that the prior DUIs were unduly prejudicial under Rule 403.? The justice court denied the bifurcation request, and Holland’s prior DUIs were admitted and used by the State during trial.? ??????????? The Court reversed and remanded for a new trial, adopting the bifurcation procedure.? “When, as under § 61-8-465(1)(e), MCA, the aggravating factor is evidence of prior DUIs, bifurcation of trial is required to cure the inherent unfair prejudice involved in presenting that prior DUI evidence to the jury.” ?If the jury finds the standard DUI elements during the first phase of the trial, the State may then introduce the prior DUIs to prove the aggravation element.? The Court rejected the State’s argument that admission of the prior DUIs was harmless error, noting that Holland’s BAC was 0.079 and that her blood test did not show any impairing drugs (she did have an inactive, non-impairing THC metabolite).? (Justice Rice dissented and would hold prior DUIs are admissible in an Aggravated DUI trial because the Legislature has defined them as an element.) ???Defendant waived right of personal presence by choosing not to attend “noticed up” hearingState v. Marquart, 2020 MT 1:? During a period in which Marquart was representing himself, the State suggested Marquart was not fit to proceed and “noticed up” a competency hearing.? After emailing with the prosecutor and clerk of court, Marquart refused to appear at the “noticed up” competency hearing because it had never been set by a court order.? The district court put out a failure to appear warrant, conducted the hearing without Marquart, and then ordered a fitness eval.? As a result of the warrant and fitness proceedings, Marquart spent 14 months in pretrial custody.???????????On appeal, Marquart argued that his right to personal presence was violated at the competency hearing. The Court held that Marquart waived his right to be present by voluntarily failing to attend the hearing of which he had actual knowledge from the prosecutor and clerk.? Of Marquart’s position that he was not required to attend a hearing that had not been set by court order, the Court essentially faulted Marquart for choosing to no-show instead of filing a motion challenging the hearing. Justice McKinnon, joined by Justices Gustafson and Sandefur, dissented. They believed Marquart was legally correct that a hearing must be ordered by a court, not “noticed up” by the State, and that Marquart’s decision not to appear for the “noticed up” hearing here did not justify the hearing then proceeding ex parte.? Plain error declined for personal presence violation re: absence from discussion of seating alternate jurorState v. George, 2020 MT 56: Due to a miscommunication, one of the jurors did not show back up after a mid-trial continuance. Without George’s personal presence, the attorneys and district court discussed whether to replace the juror with an alternate. Defense counsel wanted to wait for the originally selected juror and that is what the district court ended up doing. Counsel affirmatively agreed with these discussions proceeding without George’s personal presence. George sought to raise a plain error, personal presence claim on appeal. The Court agreed George’s fundamental right to be present was implicated but declined plain error review because the Court was not “firmly convinced” the violation of George’s right to be present resulted in a miscarriage of justice or fundamentally unfair trial. The Court noted that George had already accepted alternate juror as a juror during the selection process and that, in any case, the discussions resulted in maintaining the same jury George initially chose. The Court also rejected the idea that the decision to stick with the original juror caused delay that ended up in pressuring the jury with late-night deliberations.Claim regarding prosecutor’s emphasis of racial evidence denied under plain error reviewState 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.? Haithcox 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.5. Double JeopardyFederal double jeopardy’s dual-sovereignty doctrine reaffirmedGamble v. United States, 139 S.Ct. 1960: The Court upheld the longstanding dual-sovereignty doctrine, affirming the federal government’s ability to prosecute Gamble as a felon in possession for same possession conduct of which Alabama had already convicted him.? Under the dual sovereign doctrine, otherwise identical charges brought by the feds and a state (or by different states) are not the “same offence” under the Fifth Amendment and face no federal double jeopardy prohibitions. [Remember in Montana, the dual-sovereign doctrine only applies in one direction:? If the person already has a federal conviction, Article II, Section 25 of the Montana Constitution bars a second conviction in Montana, but (because of the federal dual-sovereign doctrine) a Montana conviction offers no protection against an identical federal conviction if the federal prosecution goes second.]Court avoids interpreting statutory double jeopardy’s “same transaction” requirement; Charges in the same court are controlled by 46-11-503, not by 46-11-504, and barred only if prosecutor had probable cause of both offenses at the time of the first prosecutionCity of Helena v. O’Connell, 2019 MT 69: ?O’Connell caused a five-car accident in Helena by rear-ending another car.? She told the investigating officer that she took various prescription meds for Lupus, depression, and sleeping.? The officer reported that he personally observed no indicators of her being under the influence but took a consent blood sample.? The officer charged her with careless driving, and O’Connell pled and was sentenced in muni court.? Four months later, the City Attorney got the tox report that confirmed the meds reported by O’Connell and charged her with DUI.? O’Connell moved to dismiss, arguing that 46-11-504 bars the City from charging DUI after O’Connell was convicted of careless driving.? Below and on appeal to the Court, the parties’ dispute focused on whether the careless driving and the DUI were part of the “same transaction” as required for application of 46-11-504.? (O’Connell argued for overturning the Court’s prior holdings in Booth and Condo that a strict liability offense can never be part of the same transaction.) ????????Following oral argument, the Court, however, avoided the same transaction question by instead deciding that 46-11-503 was the “more appropriate” statute because jurisdiction and venue for the two offenses both lay in the same muni court whereas 46-11-504 applies where the other charge was resolved in any state or federal jurisdiction.? [It is not clear from the Court analysis why the protections of both statutes cannot apply.]? The Court then held under the requirements of 46-11-503 that even assuming the careless and DUI were part of the same transaction, the DUI prosecution was not barred because the prosecutor didn’t have probable cause of DUI when the careless charge was resolved.? Causing a multi-car accident, admitting unclear memory of how it happened, and admitting prescription meds was no more than an unconfirmed suspicion of DUI because the officer did not observe behaviors indicating O’Connell was under the influence when talking to her after the accident.? [This probable cause analysis may be a small silver lining from this case and maybe interesting to apply in search and seizure cases.]? ??No DJ bar to retrial b/c judge did not abuse discretion in declaring hung jury mistrialLamb v. 11th Judicial District Court, 2019 MT 274:? The district court declared a mistrial in Lamb’s deliberate homicide trial on the basis that the jury was deadlocked after two days of deliberation.? The jury’s vote was 11 to 1 to acquit.? The district court had already given the standard dynamite instruction.? The foreperson reported progress was unlikely without clarification of the given instructions.? The district court was unwilling to provide such additional instruction/clarification.? Following the mistrial, Lamb moved to dismiss, arguing retrial would violate double jeopardy.? The district court denied that motion, and Lamb filed a petition for supervisory control.? The Court accepted supervisory control to consider Lamb’s double jeopardy claim, but then affirmed the district court’s ruling.? Because Lamb did not acquiesce to the mistrial, double jeopardy would allow a retrial only if a “manifest necessity” existed for the declaring the mistrial.? Filtering the issue through review of the initial mistrial decision, the Court effectively reviews the “manifest necessity” question under a deferential abuse of discretion standard.? Lamb argued there was no “manifest necessity” for a mistrial because the district court (1) incorrectly believed it could not give additional instructions, (2) did not give defense counsel adequate opportunity to object to the mistrial, and (3) failed to properly inquire into the jury’s request for information.? As to (1), the Court held the district court made the discretionary choice not to give additional instructions and was not operating under the mistaken view that it was legally prohibited from giving additional instructions. ?As to (2), the Court held that the question of opportunity to object goes to the question of whether counsel acquiesced, not to the question of “manifest necessity.”? Also, the Court read the transcript as showing defense counsel did have an opportunity to be heard regarding the purported deadlock.? As to (3), the Court held that after consulting with the parties how to answer each of the jury’s prior questions, the district court did not abuse its discretion by not providing the jury supplemental instructions.? In sum, because the district court acted within its discretion in declaring the mistrial, there is no double jeopardy bar to retrial.No double jeopardy bar to retrial where counsel did not object to mistrial after ’s failed to appearDion v. Twelfth Jud. Dist. Ct., OP 19-0737: Dion sought supervisory control of the district court’s decision to allow retrial after it declared a mistrial during the second day of Dion’s first trial when Dion failed to personally appear.? Due to past problems, the district court had specifically instructed Dion to be present at counsel table at 8:15 the next morning.? At 8:34, Dion had not appeared and defense counsel told the district court that Dion was not feeling well and wanted to be excused from trial.? The district court said no and warned that it would declare a mistrial and issue a warrant if Dion did not appear by the time the jury entered.? At 8:56, after the jury had entered, Dion was still not present, and the district court declared a mistrial.? Dion showed up ten minutes later.? Defense counsel objected to the warrant but did not contemporaneously object to the mistrial.? ??????????? The Court concluded that by not objecting to the mistrial after being given warning and opportunity to do so, defense counsel waived Dion’s right to object to termination of the trial.? Thus, there was no double jeopardy bar to retrial.? The Court also said, “the District Court acted rationally and responsibly when it declared a mistrial after Dion failed to appear in spite of the court’s explicit and clear requirement that she do so.”Sua sponte mistrial affirmed as manifest necessity under abuse of discretion standard; double jeopardy writ deniedSmall v. Fourth Judicial District Court, OP 19-0061: During a SIWC trial, defense counsel asked a responding officer witness several questions about the officer’s investigation and training that elicited the words “felony” and “misdemeanor.”? Judge Larson has a particular aversion to the f-word being said during trial and admonished counsel not to refer to the level of the offense.? When the officer and defense counsel again discussed how “felony” cases are investigated, the Judge cut them off and told them to move to a different topic.? During State redirect, the officer again described the situation as being an in progress “felony” crime.? At that point, the Judge—sua sponte and without consulting either side or overtly considering a curative instruction—declared a mistrial and walked off the bench.? Defense counsel got the Judge to come back into the courtroom so that the defense could object to the mistrial and then filed a double jeopardy motion to dismiss.? The Judge denied the motion to dismiss, primarily reasoning that the mistrial was necessary to protect the defendant from the prejudice of “felony” being said during trial.Small sought a writ of supervisory control, arguing that there was not the required manifest necessity for a mistrial.? Applying an abuse of discretion standard, the Court approved the Judge’s sua sponte mistrial and denied the writ.? In something of a shift of focus from below, the Court primarily relied upon defense counsel having elicited improper testimony about charging decisions, rather than upon the need to protect the defendant from prejudice. ???6. Speedy Trial, Due Process, and Statutory Delay422-day, felony DUI speedy trial reversalState v. Kurtz, 2019 MT 127:? Kurtz was arrested for felony DUI on 3/5/15 and could not make bond.? Trial was set for 8/17/15.? Kurtz filed a stop suppression motion on 7/22/15.? Upon State motion, the trial was continued to 9/21/15 while awaiting crime lab results.? A suppression hearing was held on 8/31/15 and the motion was denied in November.? On 12/14/15, the district court reset the trial for 1/4/16, noting that 9/21/15 date had “passed with no resolution.”? On 12/21/15, Kurtz requested to vacate the 1/4/16 trial and set a change of plea.? No hearing was set, and the 1/4/16 again passed without action.? On 4/12/16, the State requested a new trial date, and the case was set for 5/23/16.? Kurtz filed a speedy trial motion on 5/11/16.? The 5/23/16 trial date again passed without action.? The district court held a hearing on the speedy trial motion on 6/1/16 and denied it.? Kurtz subsequently pled guilty reserving his right to appeal the denial of his speedy motion.??????????? The Court concluded Kurtz’s right to a speedy trial was violated and dismissed the charge.? The total delay from arrest to plea was 422 days.? Such a length requires the State to provide “particularly compelling justifications” for the delay and requires a more persuasive showing that the delay was not prejudicial.? Noting that the duty to bring a defendant to trial is on the State, not the defendant, the Court ascribed culpability to the State for the delays caused by trial/hearing dates passing without anyone scheduling a new date.? Notably such delays from State inaction weigh more heavily against the State than mere institutional delay.? The Court also held that the State’s duty to keep the case moving forward applies even where the defendant has asked to vacate trial and set a change of plea.? The delay from the court not then actually setting a change of plea hearing was not attributable to Kurtz.? Similarly, under the defendant’s-response-to-delay factor, Kurtz’s involvement in plea negotiations is not incompatible with a desire for a speedy trial and does not weigh against him.? As to prejudice, the Court seemed particularly troubled that Kurtz ended up being incarcerated for three weeks longer than his DUI’s maximum prison sentence (which also then deprived him of attending WATCh).? The Court also cited evidence that Kurtz was housed in an overcrowded jail, that he did not receive prescribed sleep and mental health meds during portions of his stay, that the meds he did receive were reduced in dosage, that his anxiety and depression worsened, and that he lost his mobile home due to being incarcerated.? [To my eye, this case is another example of the importance of evidentiary hearings to winning speedy trial motions.] Two-week delay in initial appearance was unreasonable but warranted only dismissal without prejudiceState v. Norvell, 2019 MT 105:? On May 9th, Norvell was taken into custody on a probation violation after apparently hitting a cyclist and temporarily leaving the scene while driving on a suspended license.? On May 10th, the PO filed an authorization to hold with the jail.? On May 12th, the PO gave the jail an arrest warrant that said, “investigative hold:? new felony charges to be filed” and that erroneously said Norvell was on parole and was not entitled to bond.? “On May 19, a public defender discovered Norvell in the Detention Center and, given the apparent lack of a pending charge, filed a petition for a writ of habeas corpus on his behalf on May 24.”? [Nicely done.]? That prompted the State finally to file a complaint charging agg assault the next day, and Norvell had an initial appearance the day after that.? In total, Norvell was held for seventeen days without counsel or appearing before a court.? Adding to the fun, Norvell suffers from schizophrenia and his condition deteriorated, unmedicated, during this time.Norvell subsequently filed a motion to dismiss based on the unreasonable delay in his initial appearance.? The district court did suppress a statement obtained from Norvell during the delay but denied dismissal.? Norvell appealed this denial on both statutory and constitutional grounds.? Because the Court reversed under the statutory argument, it did not reach Norvell’s constitutional arguments.? The Court held that once the 72-hour PV hold expired, Norvell was effectively arrested on the expected new charges and that the “unreasonable delay” clock started to run at that point.? Relying on Gatlin, the Court ordered dismissal without prejudice.? The Court declined to dismiss with prejudice because there was no showing beyond the suppressed statement that the State benefited from the lack of defense counsel during the delay and because Norvell had already stopped taking his medication and begun decompensating prior to his arrest and the unreasonable delay.Insufficient proof of prejudice to warrant dismissal for preaccusation delay State v. Laird, 2019 MT 198: Laird’s wife drowned under suspicious circumstances in 1999.? In 2014, the State charged Laird with deliberate homicide. The Court held (5-2) that the 15-year preaccusation delay did not violate due process because Laird had not carried “the heavy burden of showing the delay actually, substantially prejudiced him.”? While the pathologist had died prior to trial, Laird’s series of speculative questions about what the doctor might have said on cross was insufficient to prove prejudice.? The Court also noted that the trial problems regarding the doctor were created by the district court’s erroneous admission of hearsay; the doctor’s death itself deprived the State, not the defense, of a key witness.? Similarly, as to a fact witness from the night who had died before trial, the Court faulted Laird for not presenting a record of what the witness would have testified to.? In particular, Laird did not submit a copy of the witness’s 1999 FBI interview.? As to missing tissue samples, although the Court was critical of how the State exploited their absence to discredit a defense witness’s opinion that Mrs. Laird was not strangled, the Court held that Laird failed to present “definite, nonspeculative proof” that the samples’ absence prejudiced his defense.? Justices Gustafson and Sandefur dissented and would have held that Laird’s allegations of the fact witness’s statement to the FBI (and the State’s implicit concessions) and the State’s exploitation of the tissues samples’ absence were sufficient to establish prejudice from his death. 7. Appeal and Collateral Review Mechanisms Order requiring involuntary meds to restore fitness considered through writ but affirmed under deferential review Barrus v. 1st Jud. Dist. Ct., 2020 MT 14:? Barrus is charged with various felonies arising out of the shooting death of a deputy sheriff.? Barrus has been found unfit and diagnosed by Dr. Hill at MSH with Delusional Disorder, Persecutory Type, and Mixed Personality Disorder with Antisocial and Narcissistic Features.? During a previous, California case from 2000, Barrus had been found unfit but restored to competency with drugs.? Dr. Hill proposed a similar treatment plan, but Barrus refused to comply, resulting in the State seeking an order for involuntary meds.? The district court conducted a five-day evidentiary hearing in accordance with Sell, 539 U.S. 166 (2003).? The district court found Dr. Hill more qualified and persuasive than Barrus’s expert, Dr. Robert Cloninger, who had never practiced in a secured, forensic mental health facility.? Based on Dr. Hill’s testimony, the district court ordered the involuntary meds, finding that the proposed medication plan was in Barrus’s best interest and had low risks of side effects.? Barrus petitioned the Court to exercise supervisory control and reverse the involuntary med order.? The Court stayed the involuntary medication order while it considered Barrus’s petition.Before reaching the merits, the Court addressed whether supervisory control was appropriate.? On the one hand, Barrus’s claim involved questions of fact, which the Court normally refuses to consider through supervisory control.? On the other hand, Sell itself was a mid-proceeding appeal and requires analysis of both facts and law.? The Court avoided the need to consider amending its supervisory control criteria by instead treating Barrus’s petition as a petition for a writ of injunction.? The Court held it could review such an original injunction writ because the State is a party, the public has an interest in establishing the validity of the State’s actions, and Barrus would have no other adequate remedy prior to his involuntary medication.? ?????Turning to the merits, the Court reviewed the factors enumerated in Sell.? The Court held the burden is on the State to prove these Sell facts by clear and convincing evidence.? As to the first Sell factor (whether important government interests are at stake), the Court held that weighing the potential life sentence Barrus faces for the criminal charges against the possibility of release in three months if he remains unfit and is civilly committed means this factor balances in the State’s favor.? As to Sell factor 2A (whether involuntary medication is substantially likely to render the defendant fit), the Court held the record—Dr. Hill’s testimony and Barrus’s previous restoration to fitness in California—adequately supported the district court’s finding that Dr. Hill’s medication plan would likely work.? As to Sell factor 2B (that the medication is substantially unlikely to have side effects that will interfere with the defendant’s ability to assist in his defense), the Court gave deference to the district court’s findings that risk of side effects was low.? As to the third Sell factor (that involuntary medication is necessary and less intrusive treatment is unlikely to achieve the State’s interests), Barrus argued he should be given cognitive behavior therapy instead of drugs.? The Court, again, applied a deferential clear error standard of review and affirmed the district court’s findings because they are supported by substantial credible evidence in the record.? As to the fourth Sell factor (that the medication is medically appropriate and in the patient’s best interests), the Court again deferentially affirmed based upon testimony that MSH would take precautions to prevent stroke or cardiac issues, that Barrus’s previous restoration to fitness lasted for seven years, and that his present delusions were interfering with his wiliness to accept medical treatment for his other ailments.? In sum, the Court affirmed the district court’s findings and Sell analysis and returned the case to carry out the involuntary medication order. Petition for habeas writ challenging bond/bond conditions requires having first requested formal bond hearing belowStarks v. Hummel, OP 20-0020:? Starks was arrested and then charged by information with felony robbery.? The district court judge who approved the information also issued an arrest warrant that set bail at $100,000.? At Starks’s initial appearance in justice court, Starks objected to the $100,000 and argued for an own recognizance release.? The justice court maintained the $100,000 bail and added a drug patch release condition over Starks’s objection.? The justice court told Starks to request a bond hearing and take her objections up with the district court.? Starks petitioned the Court for a habeas writ, arguing that she was being held on excessive bail and that there was no nexus to support a drug monitoring condition.? The Court denied the petition because Starks had not requested a bond hearing in the district court under 46-9-311.? The Court noted Starks’s data that defendants in the District can wait three weeks for such a requested bond hearing, but the Court held that without having actually requested a bond hearing, Starks’s argument that requesting a bond hearing would not have afford her adequate relief was “merely speculative.”? The Court suggests that defendants should instead request a bond hearing and then challenge the untimeliness of that hearing.? In sum, the Court concluded that because Starks still has a potential remedy available to her in district court under 46-9-311, the Court would not issue a writ. Denial of stay pending appeal affirmedState v. Scott, DA 19-0280:? Upon revocation just two weeks into a one-year suspended, misdemeanor, PFMA sentence, the district court sentenced Scott to one year in jail.? The violations were for failing to comply with drug testing and community service.? (The misdemeanor PFMA was in district court as a result of having been pled down from a felony charge.)? Scott moved the district court to stay execution of the jail sentence pending appeal.? The district court denied the stay, ruling that Scott’s failure to comply with probation conditions posed a danger to the community.? Reviewing for an abuse of discretion, the Court affirmed the denial based upon community protection and the adjudicated violations.? The Court’s order makes no mention of Scott’s argument that without a stay, he will fully discharge his jail sentence prior to resolution of his direct appeal.? [Of note, had this misdemeanor sentence been imposed in a justice or city court, 46-9-107 would have categorically entitled the defendant to bail pending appeal; however, because this misdemeanor was in district court, the burden was on Scott to prove that he “is not likely to flee or pose a danger to the safety of any person or the community.”]Court refuses to consider release pending appeal Sharp v. State, DA 19-0084:? Sharp filed a motion with the Supreme Court requesting bail pending appeal.? Noticing “an increase in such motions,” the Court reminded us that it is “not a fact-finding court” and is “not in the position to hold a hearing or to release Sharp.”? The Court declined the motion filed with it for release pending appeal as “not appropriate.”? [Under 46-9-107, 46-9-201, and 46-20-204, the request for release on bail and stay of sentence pending appeal must be initiated in the trial court.]?? Conviction triggering deportation before appeal does not warrant supervisory controlChui & Tai v. Fourth Jud. Dist. Ct., OP 19-0722: Chui and Tai sought supervisory control of the district court’s denials of their suppression motions. They argued supervisory control was appropriate because direct appeal would be an inadequate remedy because they will be deported immediately upon conviction. The Court disagreed: “While we do not dispute that this outcome could harm Petitioners, we do not conclude that it makes the appeal process inadequate as it pertains to the cases against them because deportation does not affect Petitioners’ ability to appeal and potentially obtain relief from the conviction.” The Court distinguished supervisory control situations, such as involuntary medication or forced disclosures, “where allowing a lower court’s ruling to stand would in and of itself cause irreparable harm.” Supervisory control “is not a substitute for a direct appeal”Hartman v. 19th Jud. Dist. Ct., OP 20-0069:? Hartman sought supervisory control from the district court’s denial of Hartman’s claims that the statute under which he is being prosecuted is unconstitutionally vague.? Hartman argued normal appeal would be an inadequate remedy because continuing the unconstitutional prosecution will violated his due process rights regardless of the final verdict.? The Court rejected this as greatly expanding supervisory control.? The Court reiterated that “supervisory control is an extraordinary remedy that is sometimes justified when urgency or emergency factors exist making the normal appeal process inadequate.? It is not a substitute for a direct appeal, nor an avenue to circumvent the normal appeal process.”Speedy trial writ deniedConnor v. First Judicial District Court, OP 19-0417:? The district court denied Connor’s speedy trial motion.? Connor petitioned for a pre-trial writ of supervisory control, arguing that supervisory control is necessary because if she is convicted, she will serve her likely sentence before the normal direct appellate review process can provide her a remedy.? The Court denied the petition, ruling that the normal appeal process is not inadequate. ?Interestingly, the Court added, “Should Connor be convicted, we believe it appropriate that the District Court stay imposition of sentence pending appeal if Connor so moves.”Remand for opportunity to show good cause for failure to appear in de novo retrial appealState v. Steinfeldt, DA 18-0519:? Steinfeldt was convicted of some hunting stuff following a jury trial in a non-record justice court. ?He appealed for trial de novo in district court but failed to appear at the scheduled arraignment there.? Based on his failure to appear and 46-17-311(5), the district court granted the State’s motion to dismiss Steinfeldt’s appeal.? On appeal to the big Court, Steinfeldt argued that there is a good cause exception to dismissal under 46-17-311(5) and that the district court erred by not affording him an opportunity to show good cause for his failure to appear.? The Court agreed and remanded for Steinfeldt to file a brief with the district court in opposition to the State motion to dismiss. Out-of-time appeal restarts PPCR-clockMascarena v. State, 2019 MT 78:? Mascarena, pro se, appealed the summary dismissal of his PPCR as untimely.? Mascarena was originally convicted in 2007 but was granted leave to an out-of-time appeal in 2011.? That appeal ended in late 2011, and Mascarena did not file his PPCR until 2015.? The State argued that granting of an out-of-time appeal does not restart the one-year PPCR-clock, meaning Mascarena’s time to file a PPCR would have expired in 2008.? The Court rejected the State’s argument and held that an out-of-time appeal restores the pendency of the direct appeal and that the PPCR deadlines are then calculated off of that appeal (and the subsequent cert deadline).? However, the Court affirmed the dismissal here because Mascarena’s PPCR was several years untimely even measured from the 2011 appeal.8. Search and SeizureA. Investigative StopsA car’s color being different than that listed on its registration does not itself justify a stopCity of Billings v. Rodriguez, 2020 MT 9:? An officer ran the plates on the white 2016 Chevrolet Cruze that Rodriguez was driving.? The check said the plate was registered to a red 2016 Chevrolet Cruze.? The officer stopped Rodriguez to investigate this color discrepancy.? After the stop, the officer verified the car’s VIN was correct to the registration and that the car was not stolen.? The interaction, however, lead to misdemeanor drug and paraphernalia charges.? Rodriguez moved to dismiss, arguing the initial stop was bad because the color discrepancy did not establish particularized suspicion of car theft or another crime.? At an evidentiary hearing, the officer testified that car thieves frequently spray-paints stolen cars and swap plates.? But he acknowledged that many people also innocently repaint their own cars and that a color discrepancy could be the result of a typo by MVD. ?The officer said there were a high number of vehicle thefts in the area but admitted there were no specific reports of a stolen 2016 Cruze or signs that Rodriguez’s car had been spray painted or its plates transferred.? The muni court granted Rodriguez’s motion to suppress and dismissed the charges.? The City appealed, and the district court reversed, holding that the color discrepancy plus high number of thefts in the area was enough to justify a stop. ???????????? The Court reversed and ordered suppression.? While the officer testified generally to recent thefts and thieves spray-painting stolen cars, the Court highlighted that there was no testimony as to how commonly vehicles with a different color listed on their registration turn out to be stolen.? The Court further noted nothing in Montana law prohibits repainting a vehicle nor requires the owner to inform MVD of a color change. ?“Standing alone, the color discrepancy between Rodriguez’s vehicle and that listed on the vehicle’s registration is simply too thin to constitute particularized suspicion.” ?The Court reiterated a nice holding from last year that “[w]hen 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.”Leaving brewery + waiting at intersection for cop + late signal + “deer-in-headlights” look ≠ PSState 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 + not signaling immediately all added up to particularized suspicion that Reeves was DUI and attempting to avoid the deputy.? The Court wasn’t buying:? “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.Unidentified 911 caller sufficient to support stop if motivated by good citizenship; DL suspension for post-arrest refusal requires the arrest to have been supported by probable causeIndreland v. Motor Vehicle Division, 2019 MT 141:? This is an appeal from the district court’s denial of a petition to reinstate Indreland’s driver’s license following a post-arrest, BAC test refusal.? The opinion contains two interesting points.? First, the Court holds that for post-arrest refusals, driver’s license suspension is only authorized if the officer had probable cause to arrest the driver.? Mere particularized suspicion to stop them is not enough.? [For pre-arrest, roadside refusals the test appears to remain particularized suspicion.]??????????? Second, and more directly relevant to us, a 911 caller who refused to give her name or identify herself still satisfied the first Pratt factor because she was motivated by good citizenship.? She called 911 twice and remained in the area to point out Indreland’s parked truck to a Trooper.? (The second and third Pratt factors were satisfied because her report was based upon personal observations and because the Trooper found a vehicle matching her description where she said it would be and the Trooper observed it parked crookedly.)Community caretaker stop upheld based on driver being parked in an unusual locationState v. Grmoljez, 2019 MT 82:? A trooper who had patrolled the area for nineteen years saw a car parked in a gravel turnout off of Highway 135 (a rural, two-lane road) at round 10:00 a.m. on a May morning.? The driver looked at him “without any emotions.”? The trooper turned around, pulled in behind the car, and turned on his overhead lights [the seizure].? He then went up to the car and asked the driver, “Everything OK?”? The driver of course told him she was too drunk to drive, and a DUI investigation and prosecution ensued.? The question on appeal was whether these circumstances justified the initial community caretaker seizure.??????????? The Court held that they did.? Although the driver was not in visible distress and it was warm and daytime, the Court determined the trooper provided objective, specific, and articulable facts supporting that the driver could have been in need of help.? In particular, the trooper testified that he concluded that the driver “was not stopped to enjoy the view—there were scenic lookouts close by and her vehicle was parked facing the hill; she was not stopped to hike—the turnout offered no access to hiking trails; and the positioning of her car was consistent with someone who had suddenly lost power or ran out of gas.”? ?Although the Court does not list the officer’s subjected intent as being part of the legal test for a valid community caretaker stop, the Court went out of its way to point out conduct by the trooper (such as asking whether everything was okay rather than immediately demanding identification) that was consistent with the encounter actually being a welfare check and not a pretextual seizure.? Community caretaker stop upheld upon report of driver possibly not moving in parked car, but seizure was unconstitutionally extended to non-welfare investigation w/o PS; Court believes video over officer’s testimonyCity of Missoula v. Metz, 2019 MT 264:? A 911-caller (who turned out to be a deputy county attorney) requested a welfare check on a guy (Metz) sitting reclined in his legally parked car at a city park on a sunny, spring morning.? The caller reported only that the car was running and she couldn’t tell whether the guy was moving.? Three patrol cars responded, one of which activated its overhead lights, seizing Metz.? An ambulance and firetruck arrived shortly thereafter.? As the police cars surrounded him, Metz sat up and looked at them.? His car was no longer running.? The resulting interactions resulted in a DUI conviction.? Metz argued this was not a valid community caretaker seizure because there were not objective, articulable facts showing that he was in need of help.? The Court disagreed:? “The 911 call informed Officer Erickson that someone was in need of help, and he could not be assured that Metz did not need help merely because he was moving.”? ?????? ??????????? However, the Court (4-3) went on to hold the valid community caretaker stop ended when an officer asked Metz to get out of the car, produce id, and answer questions about how long he’d been at the park. ?The Court was troubled that although the officer asked Metz out of his car to talk with medical personnel, once out, the officer did not actually ask Metz about his welfare and when the medical folks arrived, the officer waved them off because Metz said he was fine.? [Note that rather than looking at when the officer’s observations no longer justified a community caretaker stop, the Court’s analysis focused on when, based on the officer’s conduct, the seizure changed from a community caretaker stop to an investigatory seizure.]? (The dissent, Justice Baker, joined by Chief Justice McGrath and Justice Shea, would have held that the community caretaker portion of the stop did not end until the officer waived off the medical personnel.) ??The Court also held the officer’s observations prior to asking Metz out of his vehicle were not particularized suspicion to justify such an investigatory seizure.? At that point, the officer had observed a “dazed expression,” bloodshot eyes, and slightly slurred speech.? The Court found none of these suspicious in a person who has just awakened from a nap surround by police.? Of critical importance, although the officer testified to a strong odor of alcohol at initial contact and the muni court relied on that, the video, which trial counsel Ben Williams astutely put in the record, captures that the officer did not mention any odor of alcohol during his contemporaneous discussion of his observations with other officers. ?In rejecting the muni court’s finding as “flatly wrong,” the Court explained it will not “simply disregard video evidence which contradicts testimony apparently found credible by a lower court” and that a court “cannot be expected to ignore that video evidence simply because it totally contradicts the officer’s recollection.”? [To my recollection, these are the first really solid statements by our Court empowering judges to go with the video evidence over the officers’ testimony and should be useful as we have more and more video evidence in cases.]? The Court reversed the denial Metz’s motion to suppress and remanded with instructions to dismiss the DUI.? The dissent would have affirmed the lower courts’ assessment that the officer had the odor of alcohol and, thus, particularized suspicion of DUI before the community caretaker justification concluded.? The dissent noted that observations such as smell may not be determined by viewing a video.Officer approaching on foot without activating overhead lights is not a seizure State v. Questo, 2019 MT 112:? A citizen called 911 reporting that Questo smelled of alcohol and drove away.? An officer found Questo parked at a gas station.? The officer did not turn on his overhead lights and did not park in close proximity to Questo or otherwise box him in.? The officer approached on foot, asked Questo about his drinking, and got him to do some SFSTs.? In a motion to suppress and on appeal, Questo argued the call did not establish particularized suspicion under Pratt.? The Court affirmed the suppression denial on the alternative basis that Questo was not seized because the officer did nothing to restrain Questo’s liberty.?B. SearchesGetting blood from an unconscious driver generally does not require a warrantMitchell v. Wisconsin, 139 S.Ct. 2525: The question originally presented was whether a blood draw from an unconscious driver under an implied consent statute is constitutionally valid consent under the Fourth Amendment.? The Court avoided that question (without any of the Justices voicing support for it being valid consent).? Instead a four-member plurality, joined in result by Justice Thomas, held through the exigent circumstances exception that “when a driver is unconscious, the general rule is that a warrant is not needed.”? They left open the possibility that a defendant could overcome this general rule by showing “that his blood would not have been drawn [for medical treatment] if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.”? The Court, therefore, remanded for Mitchell to attempt such a showing.? Justice Thomas concurred in judgment and would have applied a per se rule that metabolization of alcohol in the body plus probable cause of DUI always creates exigency justifying a warrantless search.? [Of note, we still have Saale, 2009 MT 95, holding under Montana law that the body’s metabolism of alcohol is not destruction of evidence and, thus, does not create exigent circumstances.] No-knock entry no longer requires preauthorization in warrant; Broad computer seizure and search warrants upheld in homicideState v. Neiss, 2019 MT 125:? Neiss was convicted of deliberate homicide for shooting his neighbor over an allegedly stolen car motor.? Deputies sought a no-knock, search warrant for Neiss residence.? The warrant signed by the judge authorized the search and seizure of listed evidence including computers but did not contain a no-knock entry authorization.? Deputies executed the warrant with a SWAT team at 4:00 in the morning, deploying a flashbang grenade outside the front door. ?They seized three computers, but did not search their contents until obtaining a separate search warrant more than two years later.? The search warrant application for the computers was based on Neiss having potentially kept a log of his running stolen motor feud on the computers and/or potentially having used the computers to research a homemade silencer that deputies had previously found in his house.? The computer searches did discover internet searches for making a silencer.? The district court denied suppression motions as to both the no-knock home search and the computer searches.??????????? The Court had previously held in Anyan, 2004 MT 395, that “officers applying for a warrant must receive preauthorization from a judge for no-knock entries based on exigent circumstances known to the officers at the time of the application.”? Because the exigencies here (shooting, missing gun, prior firearm offense, distrust of police) were all known at the time of the warrant application, the Anyan rule was violated.? In response, the Court overruled Anyan.? The Court observed that Article II, Section 11 contains a warrant clause and a reasonableness clause.? The knock-and-announce rule is part of the reasonableness clause, not part of the warrant clause—it goes to whether the execution of the warrant is reasonable.? Similarly, Montana’s heightened privacy right at Article II, Section 10 applies to the reasonableness clause, not to the warrant clause.? Under the Court’s new rule, police are not required to get judicial/warrant preauthorization for a no-knock entry, but a no-knock entry can be retrospectively challenged as an unreasonable, privacy violating search.? The Court highlights that the no-knock justification question is whether officers had “a reasonable suspicion of exigent circumstances,” “not whether exigent circumstances actually existed.”? (The Court explicitly leaves open the State’s idea that exclusion of all the evidence obtained through the search might not be the proper remedy for an unreasonable no-knock entry.)? Turning to the facts here, the Court affirmed denial of suppression because the officers had reasonable suspicion of exigent circumstances, supporting a no-knock entry from the facts of a shooting homicide, missing gun, prior firearm offense, prior threats, and Neiss’s expressed belief that police were accomplices in the motor theft. ?(Justice Gustafson, joined by Justice Sandefur, wrote separately on this issue, indicating that they would have affirmed the district court on the basis of its finding that officers actually did knock and announce prior to entering.? They, thus, would not have reached the Anyan issue, but they went on to explain that Anyan rule was not unworkable and that Montana’s privacy right does support a judicial no-knock preauthorization requirement.? They fault the Majority for relying on federal jurisprudence.) ????????????? Neiss also challenged the computer searches.? Of note, the Court held that Neiss’s motion challenging the original home search/computer seizure warrant for a lack of particularity did not preserve a claim for appeal that the later warrant authorizing search of computers lacked particularity.? The Court held that the two year delay between seizing the computers and actually searching them was not unreasonable.? [Beware that part of the Court’s analysis was faulting the defense for its delay in filing a motion to challenge the initial seizure and for not asking that the computers be returned.]? The Court also affirmed probable cause to search the computers.? Thinking of a computer as a container, the Court had “little difficulty” in concluding that the evidence of a homemade silencer and running neighbor feud justified looking for such information in the computers.? (Justice Gustafson, joined by Justice Sandefur, dissented on this issue.? They would have suppressed the computer searches because the initial seizure warrant lacked particularity, was overbroad, and unsupported by particularized suspicion connecting the computers to the homicide, because the subsequent search warrant was not supported by probable cause, because the delay in obtain the search warrant was unreasonable, and because the unlawful seizure was not cured by the post-seizure search warrant.) ????Police can seize vehicle without warrantState v. Burchill, 2019 MT 285:? Burchill was found guilty of two, masked, casino robberies.? On appeal, Burchill challenged (1) the warrant search of his residence, (2) the warrantless seizure of his truck, (3) the admission of items found in the truck by a private individual after the truck was released from police custody for sale, and (4) the introduction of cell location records through a police officer.??????????? As to the residence warrant, Burchill argued the warrant application contained illegally obtained information.? Prior to the warrant being issued, an officer went into the home to secure it and while inside interviewed Burchill’s roommates.? Some of that pre-warrant information from inside the home was included in the application for the search warrant for the home.? The application also include information about the roommates’ separate burglaries.? The Court denied the claim, holding that even if this information about the roommates is excised from the application, the application still contains sufficient information to establish probable cause (largely statements of an informant whose credibility was demonstrated by having non-public details of one of the robberies).???? ??????????? As to the truck, the Court held that police can seize (but not search) an automobile without a warrant so long as they have probable cause.? Based on the informant’s statements, police had probable cause here to believe the robbery mask was in the truck and, thus, the truck’s seizure was constitutional.? (Police then got a warrant to actually search the truck.)??????????? As to the evidence found in the truck after its release from police custody, Burchill argued the evidence should have been suppressed because the State failed to maintain a chain of custody.? The Court disagreed, holding that the State only had to establish a chain of custody from when law enforcement received the evidence from the private party.??? Warrant for additional drugs in car upheld State v. Robertson, 2019 MT 99:? An officer observed Robertson pull out of a bar at night, failure to signal, and fishtail into the oncoming lane.? After he stopped Robertson, the officer reported smelling marijuana.? The officer asked Robertson for his marijuana and paraphernalia, and Robertson handed over a container and pipe.? Robertson also graciously admitted consuming alcohol at the bar.? He blew 0.114 on the PBT.? A blood draw came back 0.112.? A search warrant produced more marijuana in Robertson’s truck.? The Court upheld the search warrant on appeal, holding that the totality of the marijuana smell and admissions and turning over of marijuana and a pipe established probable cause to believe there was additional marijuana in the truck. ??????????9. Evidentiary IssuesA. Hearsay, Confrontation, and Method of QuestioningConfrontation/hearsay reversal for allowing investigating officer to recite pathologist’s autopsy opinionState v. Laird, 2019 MT 198: Laird’s wife drowned under suspicious circumstances in 1999.? In 2014, the State charged Laird with deliberate homicide, of which a jury subsequently found him guilty.? The district court had allowed an officer to recount at trial that during the autopsy in 1999 the lead doctor (now-deceased) had repeatedly said that hemorrhaged blood in Mrs. Laird’s neck was “troubling.”? The district court reasoned that the statements were not hearsay because they were admitted only to explain how the officer’s investigation proceeded.? The Court, however, held (4-3) that in opening, closing, and questioning of other witnesses the State actually used the statements to develop the idea that the doctor had found the neck bruising troubling.? The statements, thus, were hearsay and the district court abused its discretion to admit them. The Court remanded for a new trial. ??????????? The State argued that even if the doctor’s statements were hearsay, they were admissible as a present-sense impression due to having been made while the doctor examined the decedent’s neck.? The Court rejected this approach because the statements violated Laird’s Confrontation Clause right.? Like the forensic test result reports in Melendez-Diaz and Bullcoming, the autopsy doctor’s statements to the investigating officer were “testimonial” for Confrontation Clause purposes because “the primary purpose” of the doctor’s statements to the investigating officer during the autopsy requested by that officer was to create an out-of-court substitute for trial testimony.? [This section of the opinion provides a good summary of our Court’s understanding of the U.S. Supreme Court’s various decisions regarding the meaning of “testimonial.”]? The Court distinguished the non-testimonial abuse statements to the doctor in Porter, 2018 MT 16, because officers were participating in the medical exam here.? The Court also emphasized that the doctor’s statements contained his opinion regarding cause of death, not just a description of his observations.? Additionally, the State at this trial then did in fact use the statements as a substitute for the doctor’s testimony.? Given how the State relied upon the statements at trial, the Court also rejected the State’s harmless error argument.? (The Court also faulted the State for improperly undercutting exculpatory testimony from Dr. Bennett by attacking Dr. Bennett’s credibility with employment information of which the district court had not allowed evidence.) Justices Baker, Shea, and Rice dissented and would have held the doctor’s statements admissible as a non-testimonial, presence sense impression.? They also would have found the admission harmless and reject the notion that the State’s isolated attack on Dr. Bennett with information not in evidence warranted reversal.??????????? ???????B. Other Acts EvidencePrior alcohol/death conviction barred by Rule 403 in criminal endangerment trialState v. Fleming, 2019 MT 237: A jury found Fleming guilty of criminal endangerment for buying a half-gallon of whiskey for an 18-year-old (who then drank himself to a 0.584 and the hospital). The State sought and was allowed over defense objection to introduce evidence of Fleming’s fourteen-year-old criminal endangerment for providing alcohol to a couple of 15-year-old girls who then drove and got killed/severely injured. The district court gave limiting instructions that this old conviction was just to prove Fleming’s knowledge of the possible consequences of giving alcohol to youth. The Court reversed and remanded for a new trial, holding the district court abused its discretion by not barring this evidence under Rule 403. The Court noted the probative value of the evidence was weakened by the difference in age between prior 15-year-olds and the past-the-age-of-maturity 18-year-old here, but mostly the Court focused on the unfair prejudice of this prior conviction and the girl’s death. “That evidence packed an incredibly powerful punch, one that we conclude was simply too prejudicial to be overcome by a cautionary instruction.” The Court also noted that giving the cautionary instruction at the start of trial meant the very first thing jurors learned about Fleming was that in 2001, his actions caused one teenaged girl to die and another to suffer significant injuries. Justice Rice dissented and would have affirmed because Fleming’s knowledge of the risk caused by youth drinking was the core of the State’s case. Prior problems and fights admitted through transaction rule in domestic assaultState 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.? ????????? C. Miscellaneous Evidence of other sperm on underwear allowed over Rape Shield objection to rebut State’s inference that washing explained absence of ’s cellsState v. Lake, 2019 MT 172:? A jury found Lake guilty of Attempted SIWC based upon an allegation that he “humped” a woman and ejaculated in her underwear.? Lake’s trial defense was that the woman’s allegation was false; he did not raise any sort of mistaken identity claim.? The Crime Lab excluded Lake’s DNA from the underwear where the woman claimed it would be but found a stain with sperm cells from an unidentified male.? (The defense assumed these cells came from some previous event with the woman’s husband, but he declined to be tested.)? The State responded to the absence of Lake’s DNA with evidence that the woman had washed the underwear prior to give them to police and the Crime Lab, relying on the common sense inference that that washing had washed Lake’s ejaculation away.? Lake sought to present the evidence of the unidentified sperm cells on the underwear to counter the State’s inference that the washing accounted for the absence of Lake’s sperm cells.? Applying Rape Shield, the district court barred Lake from presenting evidence that other sperm cells were found on the same underwear after the washing.? The district court faulted Lake for not presenting expert testimony that the presence of other sperm cells meant that Lake’s had not been washed away.? Critically, trial counsel (Jennifer Streano and Rochelle Wilson) loudly said pretrial that the other sperm cell evidence would only be admissible if the State chose to put on the washing evidence and that the defense would not make any inquiry into where the other sperm cells came from (again, the defense assumed they came from the woman’s husband).??????????? The Court reversed, holding that the other sperm evidence was admissible under Rape Shield to rebut the State’s washed-away theory.? The evidence’s probative value to the defense was great because without evidence that other sperm cells survived the washing, the State’s washing inference deprived the absence of Lake’s cells of any exculpatory value. ?(The Court rejected the State’s argument that presence of other sperm cells lacked probative value without expert testimony; the defense laundry failure inference relied upon the same common sense as the State’s washed-away inference.) ?The evidence’s prejudice to the woman’s privacy interests was minimal because the most likely inference from the cells was just that a married woman at some point had sex with her husband.? Lake’s constitutional right to present a defense thus outweighed the Rape Shield interests.? Justice Baker dissented and would have held that the district court did not abuse its discretion in denying the evidence because it did invite inferences about the woman’s past sexual conduct and because it was of little value without expert testimony.Reversal for sending interview videos into jury roomState v. Nordholm, 2019 MT 165:? During an aggravated kidnapping trial, the State introduced several body cam videos of officers talking with witnesses, the alleged victim, and the defendant.? At the start of deliberations, the defense objected that the videos should not go back into the jury room and should only be replayed for the jury upon request and only back in open court.? The district court denied the objection and sent the videos into the jury room unrestricted.? On appeal, the State conceded that giving the jurors unrestricted access to such testimonial evidence was an abuse of discretion but argued doing so was harmless because other evidence proved the same facts.? The Court reversed.? It reaffirmed Montana’s common law prohibition against submitting testimonial evidence to juries during deliberations.? It then held that the error here was not harmless because the State cannot prove there is no reasonable possibility that the jury’s unsupervised access to the videos did not give the statements on the videos undue emphasis, contributing to conviction.? [Because how jurors used such videos inside the jury room will almost always be unknown and unknowable, it appears that this sort of trial error will now usually result in reversal (unless, perhaps, the State can show that the video statements were not material or were not favorable to the State).]? The Court noted that if jurors request to review a particular video, that review—as defense counsel here suggested—must be supervised by the district court to prevent such undue emphasis.When jury request to rehear testimonial evidence, trial court must isolate specific testimony and carefully weigh risk of undue emphasisState v. Hayes, 2019 MT 231:? A jury found Hayes guilty of incest against his 10-year old daughter.? The daughter testified at trial to inappropriate touching but said she could not remember parts of the accusations that she had previously recounted during an interview.? The district court, thus, allowed the State to play three specific portions of the interview video for the jury as prior inconsistent statements, but the record was silent as to exactly what portions of the video were played. (The Court encourages us to fix this silence in future cases by having the court report transcribe whatever is being played for the jury.)? During deliberations, the jury then asked to re-watch the video clips.? Over defense objection, the district court sent the court report into the jury room to play the video for jurors.? Again, to the Court’s displeasure, we do not have a record of exactly what the jury saw.??????????? On appeal, Hayes persisted in his objection that re-playing the videos placed undue emphasis on the interview statements over other evidence.? The Court agreed and remanded for a new trial.? When a jury asks to rehear trial testimony or testimonial evidence, the trial court must make inquiry to “discover the exact nature of the jury’s difficulty, isolate the precise testimony which can solve it, and weigh the probative value of the testimony against the danger of undue emphasis.”? None of that happened here.? Furthermore, if the trial court determines that replaying some portion is warranted, it must adopt a “strictly controlled procedure” for having the jury review the specific, isolated material that is giving the jury difficulty.Testimonial exhibit claim denied because record inconclusive as to what exhibits actually went into the jury roomState v. Ward, 2020 MT 36:? Ward was tried for PFMA.? On appeal, he argued the district court erred by allowing several witness interview recording to go into the jury room for unsupervised viewing during deliberations.? The Court declined to consider this claim because the record did not conclusively establish whether the recordings ended up going to the jury or not.? [Especially after this holding, I think we need to make it a routine habit in every trial to affirmatively get on the record what exhibits are and are not going into the jury room.? Any ambiguity will be held against us, not against the State.]?? Citizen arrest statute is admissible in negligent endangerment trial for cutting off high-speed chase City of Helena v. Parsons, 2019 MT 56:? Parsons, seeing officers involved in a high-speed chase with a motorcycle through Helena, pulled his truck and trailer across the road to stop the motorcycle.? The motorcyclist wrecked trying to avoid this roadblock and was injured.? Parson was charged and tried for negligent endangerment.? During the jury trial, Parson sought, but was prohibited, from obtaining an instruction and putting before the jury the existence of Montana’s citizen arrest statute (46-6-502).? The Court reversed, holding that the existence of the citizen arrest authority is relevant to whether Parsons had a negligent, willful, or wanton disregard mental state.? The Court does not hold that the citizen arrest statute is an affirmative defense that immunizes Parsons from criminal liability; it’s just a fact that goes into the jury’s mental state finding.? Justice Baker, joined by Chief Justice McGrath and District Court Judge Yvonne Laird, dissented and would have held that the citizen arrest statute does not create any authority for a citizen to interject himself into an active police pursuit by creating a roadblock.? ??????????Additional evidence of defendant’s post-obstructing injuries properly barred under 403 City of Bozeman v. McCarthy, 2019 MT 209:? Relevant to the appeal claims, McCarthy was convicted of Resisting Arrest and Obstructing a Peace Officer following a jury trial in a muni court.? At trial, the muni court barred the defense under Rule 403 from presenting doctor testimony of McCarthy’s injuries from the cops.? Because the injuries occurred after McCarthy’s alleged refusal to comply with officer commands and because other evidence of his injuries was admitted, the Court held that the primary purpose of the doctor’s testimony would have been to elicit sympathy for McCarthy and prejudice against the officers for excessive force.? Such sympathy is not a proper basis for a jury’s verdict, and the muni court did not abuse its discretion by barring the testimony.Officer can testify to observations even if not properly certified as police officerState v. Robertson, 2019 MT 99:? In a drug possession and DUI case, Robertson argued in limine that the arresting officer was not qualified to testify at trial because he was not properly certified as a peace officer because his physical evaluation for his certification as a police officer had been completed by this personal physician.? Without deciding whether the officer meet the certification requirements at 7-32-303(2)(g)(i), the Court rejected this claim because it was presented no authority that an officer must meet the requirements of 7-32-303(2) in order to testify at trial.? ??Admission of billing records reversed for lack of foundationIn re Marriage of Fossen, 2019 MT 119:? This is a civil appeal disputing attorney fees, but it has useful evidentiary reminders about authentication, compilations, and the limits of expert testimony.? One side below sought to prove their attorney fees through compilations of billing records offered through an expert who testified that the billed amounts were reasonable fees.? However, the expert had no personal knowledge of the work done or that the amounts were accurate.? The Court held that the district court abused its discretion in admitting the billing records without adequate foundation from someone with personal knowledge of the records’ accuracy.? Rule 1006 didn’t save admission of the compilation because 1006 requires that the underlying materials upon which a summary is based must be themselves admissible.? Nor did the use of an expert allow admission:? “Although an expert may rely on inadmissible evidence in formulating an opinion, the expert may not serve as a conduit for the admission of substantive evidence.” ?Cell records require foundation from cell companyState v. Burchill, 2019 MT 285:? Burchill was found guilty of two, masked, casino robberies.? The State was allowed to introduce Verizon cell phone location evidence through a police officer.? On appeal, the State conceded that it was error to admit these records without foundation testimony from a Verizon records custodian.? The State, however, argued the error was harmless.? The Court agreed.? The State had videos matching Burchill’s build, a distinctive mask found in his truck with his DNA, an informant with non-public information who said Burchill did it, and a gun in Burchill’s truck that matched the one used at the casino.? The cell location evidence was also imprecise.??? Jehovah Witness elder not required to report sexual abuse Nunez v. Watchtower, 2020 MT 3: This is a civil negligence case against a congregation of Jehovah’s Witnesses for not reporting sexual abuse.? Potentially relevant to us, the Court held: ?“Jehovah’s Witnesses are excepted from the mandatory reporting statute under § 41-3-201(6)(c), MCA, because the undisputed material facts in the record show that Jehovah’s Witnesses canon law, church doctrine, or established church practice required that the reports of abuse in this case be kept confidential.”? The Court explicitly seeks to construe 41-3-201(6)(c)’s clergy reporting exception in a manner that does not discriminate against religions with less formal confession practices.? [While the statutory language is different, this sentiment might also be useful if you have to litigate the clergy confession privilege at 26-1-804.] ?????10. Offenses and InstructionsA. Elements/SufficiencyIn a federal firearm prosecution, “knowing” applies both to the possession and to the status making that possession illegalRehaif v. United States, 139 S.Ct. 2191: The Court held (7-2) that to obtain an illegal firearms possession conviction under 18 U.S.C. 922(g), the Government must prove both that the defendant knew he possessed a gun and that he knew he was in one of the categories that makes such possession illegal (here that he was in the country unlawfully).? [This was purely a federal statutory interpretation decision, but it nicely represents the idea that an offense’s mental state should apply to all of the offense’s elements.]? Hunting w/o permission offense does not require proof of taking or attempting to take a game animal separate from proof of “hunting”State v. Cherry, 2020 MT 25:? A jury found Cherry guilty of Failure to Obtain Landowner Permission for Hunting under 87-6-415(1).? While in orange and carrying a rifle, he crossed through 80 feet of private land to get from one public parcel to another.? His various jury instruction and other objections boiled down to whether 87-6-415(1) requires proof of “taking or attempting to take game animals” separate from proof of “hunting.”? The Court held that taking or attempting to take a game animal is included within the definition of hunting and not a separate element.? The Court endorsed the testimony of a Warden that “‘Hunting begins at the time you leave your vehicle until you get back.? You can’t walk across someone else’s land to get to more public land and just say you are not hunting when crossing private land.’”? The Court also held that the trial court had discretion to use the State’s proposed jury instructions even though the State missed the deadline for submitting such proposed instructions.“No trespassing” posting requirement applies only to raw, unoccupied land, not to residential propertyCity of Bozeman v. Lehrer, 2020 MT 55: Following a bench trial, Lehrer was convicted of Criminal Trespass for entering a fenced backyard in residential Bozeman. The yard did not have a no trespassing sign. Lehrer argued he did not commit Criminal Trespass because without a posted no trespassing sign, he held a default privilege to enter the yard. This question of statutory interpretation comes down to whether a house’s backyard is “land” under 45-6-201(1)’s provision that people are privileged to enter upon “land” unless privilege has been explicitly denied by posting or personal communication. Without any plain language analysis, the Court went right to the statutory history of this privileged-unless-posted provision. The provision was added by a 1985 bill whose purpose the Court determined to be requiring owners of raw, unoccupied land to give clear notice to hunters and recreationalists as to when access to private land is prohibited. The Court saw no mention of occupied or residential property during the Legislature’s consideration of this bill. The Court, thus, construed the no trespass posting requirement for “land” to only apply to raw or unoccupied land, not property in residential neighborhoods. [This “holistic” intent version of statutory interpretation seems a different animal from the plain language controls approach usually espoused by the Court. As a side note, that entering a yard is now clearly trespass may have some use in the context of police walking around a house or such.] Circumstantial evidence of deliberate homicide sufficient w/o medical opinion as to manner of deathState v. Laird, 2019 MT 198: A jury found Laird guilty of deliberate homicide for drown his wife. Laird argued the evidence was insufficient to prove deliberate homicide because the State’s theory of guilt required Laird to have incapacitated his wife prior to dragging her to the water and there was no physical evidence in the State’s case-in-chief that she had been incapacitated.? Court rejected the claim, holding (5-2) that viewing the evidence in the light most favorable to the State, the circumstantial evidence of arguments, the couple’s comings and goings, the wife’s being barefoot in a rocky area at night without her glasses, and Laird’s odd behavior afterwards was sufficient for a jury to find that Laird killed his wife.? The State was not required to present direct forensic, medical expert evidence proving Mrs. Laird was incapacitated before she drowned.? Justices Gustafson and Sandefur dissented and would have held that on these facts medical testimony to establish the manner of death was necessary. Circumstantial evidence of missing gun sufficient to prove Tampering State v. Daniels, 2019 MT 214:? Daniels was tried for Attempted Homicide, Aggravated Burglary or Aggravated Burglary by Accountability, and Tampering with Evidence arising out of a break-in and shooting at a remote cabin.? The Court affirmed the trial evidence was sufficient to support a Tampering charge for Daniels getting rid of the gun he used in the other offenses.? The Court distinguished Polak, 2018 MT 174, because sum total of the State’s evidence in Polak was that the defendant had a gun during the underlying offenses but did not have a gun when arrested days later.? Here, the circumstantial evidence—that Daniels no longer had the gun three hours after fleeing from the scene through the woods and that he told the arresting officers that they could go ahead and search him because they “w[eren’t] going to find anything”—was sufficient to show he’d concealed physical evidence with the purpose to hinder an imminent investigation.? Justices Gustafson, McKinnon, and Sandefur dissented and would have found the Tampering evidence insufficient under Polak because “the State did not produce evidence that Daniels committed an overt act to conceal the gun.”Providing teen ? gallon of whisky sufficient evidence to prove criminal endangermentState v. Fleming, 2019 MT 237: A jury found Fleming guilty of criminal endangerment for buying a half-gallon of whiskey for an 18-year-old (who then drank himself to a 0.584 and the hospital). Fleming challenged the evidence’s insufficiency. The Court explained criminal endangerment requires “the defendant be aware of a high probability that his conduct may cause a substantial risk of death or serious bodily injury to another.” (The “high probability” is the knowingly as-to-result mental element; the “substantial risk” is the result element that must be caused.) The Court noted that “without more, providing a modest amount of alcohol to a minor likely could not sustain a felony criminal endangerment charge,” but here the evidence that Fleming bought an 18-year-old a half-gallon of whiskey was sufficient. Loss amount element upheld based upon resulting labor costsState v. Higgins, 2020 MT 52:? Higgins cut through fencing chains to access a manual valve and shutdown an oil pipeline.? The trial court denied Higgins’s motion to dismiss for insufficient evidence as to the felony’s $1,500 loss element.? The Court affirmed, holding the loss amount finding was supported by sufficient evidence (including hours and pay rates) of company employees having to do extra work that would not have occurred but for Higgins’s actions.? These “employee expenses directly attributable to Higgins’s criminal conduct” also supported the imposed restitution.? (The district court declined the company’s request for $20,000 in restitution to add better chains to all of its facilities nationwide.)? ????Insufficient evidence claim waived by failure to raise during intermediate appeal City of Bozeman v. McCarthy, 2019 MT 209:? McCarthy was convicted of obstructing in muni court.? On appeal to the Supreme Court, McCarthy challenged the sufficiency of the State’s evidence to prove obstructing.? Procedurally, the Court reaffirmed that failure to raise a claim during intermediate appeal to the district court is a waiver of that claim but that the Court may then still consider the claim through the plain error doctrine.? The Court then declined plain error review here where the State presented evidence that an officer responding to a 911 call commanded McCarthy to put his hands in the air and McCarthy did not immediately comply.Motion for new trial denied where recanting witness had already testified inconsistently and other evidence established guiltState v. Jones, 2020 MT 7:? After being found guilty of assault with a weapon and agg assault against his girlfriend, Jones filed a motion for a new trial based upon his girlfriend having recanted her accusations.? The district court denied the motion.? Focusing on the fifth prong of the Clark test (reasonable probability of a different outcome), the Court affirmed.? The Court held the weight of the post-trial recantation was diminished because in her trial testimony, the girlfriend had already given inconsistent accounts and said she still loved Jones.? She also continued to make inconsistent statements after recanting.? The State’s trial proof also contained extensive physical and second-hand evidence of Jones having assaulted his girlfriend.????? B. Defenses“Crime of violence” enhancement struck down for vaguenessUnited States v. Davis, 139 S.Ct. 2319: The Court (5-4) struct down 18 USC §?924(c)(3)(B), which provides enhanced sentences for using a firearm during a “crime of violence.”?? The term “crime of violence,” which is interpreted as referring categorically to statutory offenses, not the defendant’s particular conduct, is unconstitutionally vague.? [The opinion contains some potentially useful comments that the constitutional avoidance doctrine cannot be used against defendants to expand a criminal statute’s scope.]Win for Tribe’s treaty hunting rights over State’s unlawful hunting prosecutionHerrera v. Wyoming, 139 S.Ct. 1686: Wyoming convicted Herrera, a member of the Crow Tribe, of hunting out of season in the Bighorn National Forest.? Herrera argued that he had a protected right to hunt there under an 1868 treaty giving the Crow Tribe “the right to hunt on the unoccupied lands of the United States.”? In upholding Herrera’s right, the Court (5-4) held that the treaty did not expire upon Wyoming’s statehood because Congress had not “clearly express” an intent for Wyoming’s statehood to end the treaty rights.? The Court also rejected Wyoming’s arguments that statehood or creation of the Bighorn National Forest categorically rendered all land within “occupied” under the treaty.? The opinion left open the issue of whether Wyoming could regulate the exercise of the 1868 treaty rights “in the interest of conservation.”State identity theft offense not preempted by federal lawKansas v. Garcia, 17-834: The Court (5-4) held that a Kansas identity theft offense involving misstatements on W-4s by illegal immigrants who also made the same misstatements on I-9 immigration work-authorization forms was not expressly or impliedly preempted by federal law. That federal law limits the use of I-9 forms to various federal purposes does not prohibit states from addressing fraud regarding the same information on other forms.City gun background check ordinance preempted by state lawCity of Missoula v. Fox, 2019 MT 250: Missoula passed an ordinance making it a misdemeanor to transfer a firearm in Missoula without a background check.? The Attorney General issued an Opinion that the Ordinance violated 45-8-351.? That statute provides that cities may not prohibit or regulate the sale, transfer, or possession of guns exception to prevent carrying weapons in public buildings and to prevent possession of guns by felons and such.? In a declaratory judgment action brought by the City, a district court ruled that the ordinance was allowed under 45-8-351 and the presumption in favor of the power of local governments.? The Attorney General appealed, and the Court reversed.? The Court held that the exception in 45-8-351 applies only to possession of guns, not to sale and transfer.? The Ordinance was not within this exception because it regulated the sale and transfer of all guns, not merely possession by felons.? “[T]he powers of self-governing local governments must be liberally construed, but this presumption cannot override specific legislative preemption, as here.”State felony jurisdiction (PL-280) upheld as to Flathead ReservationLozeau v. Anciaux, 2019 MT 235:? Lozeau, an enrolled member of the Confederated Salish and Kootenai Tribes (CSKT), filed a habeas petition in district court arguing that the State had no jurisdiction to prosecute him for an alleged crime on the Flathead Reservation.? The district court dismissed the petition for failure to state a claim, and Lozeau appealed that dismissal.? Lozeau argue the State is improperly applying Public Law 280 because PL-280 was never ratified by the CSKT members and that PL-280 violates the 1855 Hellgate Treaty.? The Court reviewed the history of PL-280 and concluded that the CSKT did consent to Montana’s assumption of concurrent criminal jurisdiction in 1964-65.? The CSKT withdrew consent for misdemeanor jurisdiction in 1994, but the felony consent remains.? As to the Hellgate Treaty, the U.S. Supreme Court has held that PL-280 is a valid abrogation of a tribe’s jurisdictional treaty rights.? ???No common law necessity defense for civil disobedienceState v. Higgins, 2020 MT 52:? Higgins cut through fencing chains to access a manual valve and shutdown an oil pipeline.? The State charged trespass and felony criminal mischief.? At trial, Higgins sought and was denied the ability to present a common law necessity defense based on the need for civil disobedience to prevent climate change.? The Court affirmed, agreeing with the State that the common law defense of necessity has been merged into statutory defense of compulsion and no longer has independent existence.? (The Court notes one exception may exist for the necessity of certain prison escapes.)? The Court also held the trial court did not abuse its discretion by asking a follow-up question of Higgins during trial to establish that Higgins’s life was not being directly threatened by the pipeline company.? ?C. Jury instructionsIAC reversal for failure to seek correct age-of-consent instruction for sex assaultState v. Resh, 2019 MT 220:? Resh was tried for SIWC or, in the alternative, sex assault against a 14-year-old.? Without objection from defense counsel, the only “without consent” instruction given jurors was the SIWC instruction that a person less than 16 is incapable of consent.? No instruction told jurors gave jurors the definition of consent for sex assault or told them that a 14-year old could legally consent to sexual contact.? During closing, the State argued “without consent” based on the girl being under 16 and said that the consent elements for SIWC and sex assault were “essentially the same.”? The jury acquitted of SIWC but found Resh guilty of sex assault. ???????????? On appeal, Resh argued that counsel was ineffective for not seeking the correct age-of-consent instruction for sex assault under the applicable 2013 statutes.? The Court agreed, remanding for a new trial.? The Court held that the IAC claim could be reviewed on direct appeal because there was no plausible justification for counsel’s failure to correct a jury instruct that misstated an offense element to the defendant’s detriment.? The Court found IAC-prejudice because the failure to give a correct consent instruction undermines confidence in the verdict because the incorrect instruction allowed the jury to find Resh guilty solely on the undisputed evidence that the girl was under 16.? ?????????????????? This case was resolved under the 2013 statutes.? However, the Court goes out of its way to note that the definition of “consent” at 45-5-501 was amendment in 2017 “to apply the sixteen-year-old age of consent to sexual assault” but that “[t]he Legislature did not amend § 45-5-502(5)(a)(ii), MCA (2019), which still provides that under the sexual assault statute, consent is ineffective if the victim is less than fourteen years old and the offender is three or more years older than the victim.”? [From this statutory conflict, it appears open to debate whether the present age of consent for sex assault in Montana is 14 or 16.]? IAC claim for not getting accountable witness instruction punted to PCRState v. Wittal, 2019 MT 210:? Wittal was convicted of deliberate homicide.? As summarized by the Court, his defense at trial was that three other people were responsible for the killing and set him up.? During trial, the State proposed an instruction that the testimony of one legally accountable for the charged crime ought to be viewed with distrust and that a defendant cannot be found guilty based on the testimony of one legally accountable unless that testimony is corroborated.? Upon defense counsel’s objection, the district court did not give the instruction.? On appeal, Wittal argued that the instruction supported Wittal’s theory of defense and that counsel was ineffective for opposing it.? The court held the claim must wait to be raise in a PPCR because the existing record is insufficient to determine whether counsel’s objection was a reasonable tactical decision.? (Counsel had expressed concern that the instruction would confuse jurors but also argued in favor of one part of it and express unfamiliarity with the issue.) ????Denial of negligent endangerment LIO affirmed as to high-speed chase criminal endangermentState v. Jensen, 2019 MT 60:? Jensen was found guilty of criminal endangerment for going 150 on I-15.? (He, his Dodge Challenger, and his Pepsi and Jim Beam outran several Troopers—before getting spike stripped—and along the way passed numerous other cars at high speed.? When asked why he had not pulled over, Jensen responded that “he liked driving fast, and he was a good driver.”)? On appeal, Jensen argued the district court erred by refusing his request for lesser included offense instruction as to negligent endangerment.? The district court denied the instruction, concluding the evidence did not support a finding that Jensen did not act knowingly.??????????? The Court affirmed.? Negligent endangerment is legally a lesser included offense of criminal endanger because the two differ only as to negligently versus knowingly mental states.? However, given the evidence of driving conduct and not stopping for the Troopers, the district court did not abuse its discretion by concluding that the evidence was insufficient to support a mere negligent mental state.? Plain error declined as to verdict form typo State v. Daniels, 2019 MT 214:? Daniels was tried for Attempted Homicide, Aggravated Burglary or Aggravated Burglary by Accountability, and Tampering with Evidence arising out of a break-in and shooting at a remote cabin.? The verdict form listed Aggravated Burglary and Aggravated Burglary by Accountability as alternative offense and also gave lesser included offenses of Burglary and Burglary by Accountability for each.? The verdict form then, unfortunately, said “the Defendant may not be found ‘not guilty’ of both alternatives or lesser included offenses.”? (Underline added.)? Daniels argued this instruction was a plain error, due process violation.? The Court declined plain error review, holding that it need not reach the question of this typo because both Daniels’s argument for a lesser included offense below and the jury’s finding of guilt as to the first, greater charge showed that the jury never needed to get to the typo in the alternative offense portion of the verdict form. The Court also rejected a related IAC claim. ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download