Date: 01-18-2017

Case Style:

Case Number: 2017 MT 12

Judge: James Jeremiah Shea

Court: IN THE SUPREME COURT OF THE STATE OF MONTANA

Plaintiff's Attorney:

Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana

William E. Fulbright, Ravalli County Attorney, Thorin Geist, Deputy County Attorney

Defendant's Attorney:

Chad Wright, Chief Appellate Defender, Jennifer Hurley, Assistant Appellate Defender

Description: On September 30, 2013, the State of Montana charged Pope with attempted
deliberate homicide, assault with a weapon, and driving while license suspended or
revoked. The State alleged that on September 12, 2013, Pope intentionally struck his
then girlfriend, Susan Myers, with his van on Highway 93 in Ravalli County. Pope
denied the allegations, claiming that Myers exited the van and, as he drove away, Myers
jumped into the road toward the van throwing her drink at the windshield.
¶4 On January 29, 2014, Myers wrote to the District Court stating that Pope “did not
hit [her] with his van” and she did not fear him. Myers gave similar exculpatory
statements during recorded interviews prior to trial, including a statement to defense
counsel that “nothing happened.”

¶5 During the three weeks preceding the set trial date of June 23, 2014, the State
made numerous disclosures that included nearly one hundred pages of documents and
three discs. Pope raised the issue of the State’s delayed disclosures during the final
pretrial conference. Regarding the State’s late production of the first responding officer’s
interview, the District Court granted Pope’s request to call Deputy Liechty as a rebuttal
witness if necessary. However, regarding the State’s late production of a September 26,
2013 jail telephone call between Pope and Myers, the District Court denied Pope’s
request for its exclusion, noting that the usual remedy would be a continuance, which
Pope did not request.
¶6 On June 23, 2014, during jury selection, the State’s in-house investigator, James
Hulme, interviewed Myers for approximately forty-five minutes. The interview was
video-recorded. Hulme explained to Myers that Deputy County Attorney Thorin Geist is
the prosecutor and then began asking “Thorin’s questions.” Hulme began with general
background questions regarding Myers’ relationship with Pope. Hulme asked Myers
whether she recalled going to the hospital on September 12, 2013, what her injuries were,
how she hurt her ribs, when she previously hurt her ribs, and whether her ribs had healed
before the incident. Hulme then asked Myers open-ended questions about the events on
September 12, 2013, and her communications with Pope following the incident: whether
Pope or his counsel told her what to say; whether Pope’s letters to her discussed the
incident; and whether Hulme could view the letters from Pope. Myers replied she had the
letters from Pope, but did not remember their contents and expressed concern about
giving the letters to Hulme.


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¶7 Hulme informed Myers that Pope refused a plea agreement and read her portions
of a recorded jail telephone call transcript between Pope and a mutual friend, in which
Pope stated that he gave up everything for Myers, that he pawned all his stuff for Myers,
that Myers has what little he has left, and that his mother is upset Myers has his TV.
Myers disputed Pope’s statements. Myers claimed during her interview with Hulme she
had a “bad broken rib” from the incident; that Pope drove the van at her quickly; that she
was on the side of the street, not in it, when the van approached; that she tried to move
out of the way of the van; and that she thinks she was knocked unconscious. Towards the
end of the interview, Myers asked Hulme, “Am I supposed to call [Pope’s counsel] up
and tell her I’m not gonna meet with her? I’m not supposed to be meeting with her?” to
which Hulme replied, “It’s not that you’re not supposed to be meeting with her, but it
would be a lot better if [Geist] were there.”
¶8 After the court proceedings that day, Geist viewed the video recording of Hulme’s
interview with Myers and concluded the State would not disclose the video on grounds
that it was not “exculpatory” and it would not be used at trial. That evening Geist
informed Pope’s counsel, Jennifer Streano, that Hulme had met with Myers, at which
time Streano requested to interview Hulme to discover what Myers said. Geist refused,
and did not inform Streano at that time that the interview was recorded. Streano
attempted to re-interview Myers, without success. The trial resumed the next morning.
Later that day, Geist informed Streano shortly before Myers was to testify that the State
recorded the interview with Myers. Streano brought the issue to the District Court’s


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attention, requested the State produce the video, and asked the District Court for time to
review it before Myers testified.
¶9 The State objected to producing the video, and argued to the District Court that the
rules, citing § 46-15-322, MCA, required it to produce only the names and contact
information for testifying witnesses and only exculpatory material. Since Myers’
statements were not exculpatory, the State contended it did not have to produce the video.
Pope argued that the discovery statutes require the State to produce all witness
statements, regardless of whether the statements are exculpatory or inculpatory. Pope’s
counsel asserted she needed to see the video “so I can adequately cross-examine Ms.
Myers.” The District Court denied Pope’s request to view the video on the grounds that
it did not contain exculpatory evidence, and because the recorded interview may be
“work product.”
¶10 Following the District Court’s ruling, the State called Myers to the stand. Myers
testified consistently with her previous day’s interview with Hulme and inconsistently
with her previous statements to Pope, his defense counsel, and the District Court. Myers
testified that she and Pope had been fighting on the day of the incident and that she got
out of the van and crossed the street. She testified that Pope “drove the van at me on the
other side [of the street]” and “tried to hit me with the van.” Myers stated she was unsure
if Pope actually hit her with the van, but that she was knocked unconscious and injured
her ribs.
¶11 During cross-examination, Myers denied her previous rib injuries occurred during
a fall while camping. She also denied that she was on benzodiazepines or intoxicated the


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day of the incident. When questioned about her previous statements that she was bipolar
and especially emotional the day of the incident, Myers testified she “just said that to try
to help.” Myers also testified she felt defense counsel had “tricked” her.
¶12 After the State rested its case, Pope reasserted his position that the State should
have provided the video of Myers’ interview before Myers’ testimony. Pope’s counsel
stated that she was caught “completely off guard” by Myers’ testimony and that the
testimony “was the first time [Pope’s counsel had] ever heard this version of events, and
[she] was unable to properly prepare to impeach [Myers’] credibility because [Pope’s
counsel] did not know that [Myers] was going to be changing her story 180.”
¶13 After the parties settled jury instructions, Pope’s counsel asked to view the video
overnight to determine if there were issues she should raise with the District Court to
preserve for appeal. The District Court put the video recording in the record, but
concluded it could not order the State to produce the recording if the State opposed
production. The State again refused to produce the video, arguing it was work product
made in preparation for trial. The State represented the video reflected Myers stating
“essentially the same as what she testified to [at trial,]” and the District Court agreed that
the testimony seemed inculpatory and ruled that the State was not required to produce the
video.
¶14 Before the trial resumed the next morning, Pope moved for a mistrial as a sanction
pursuant to § 46-15-329(5), MCA, on the grounds that the State failed to disclose the
witness statement. Citing the prosecution’s disclosure obligations under §§ 46-15-322
and -327, MCA, Pope argued that the interview did not meet the definition of work


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product under § 46-1-202(31), MCA. Pope asserted that with timely knowledge of
Myers’ changed testimony, he may have presented his case differently. Specifically,
Pope’s counsel contended she could have addressed Myers’ recantation during her
opening and examined witnesses differently. The State reiterated its position that the
video was work product and not discoverable. The District Court agreed with the State,
and ruled that § 46-15-322, MCA, applied only to exculpatory information, which it
determined the video did not contain. Later, the District Court issued a written order
denying the motion for a mistrial, on the grounds that the interview was work product
that contained no exculpatory information.
¶15 The jury found Pope not guilty of attempted homicide, but guilty of assault with a
weapon and driving while license suspended or revoked. During sentencing, Pope argued
he was unable to pay the fees recommended in the presentence investigation (PSI). The
District Court sentenced Pope on the assault charge to the Department of Corrections
(DOC) for twenty years, with ten years suspended, and on the driving while license
suspended or revoked charge to the Ravalli County Detention Center for six months, to
run consecutively to the DOC sentence. The District Court imposed $1,005 in fees and
costs: $800 for appointed counsel; $100 for prosecution costs; a $50 victim surcharge;
$35 in conviction surcharges; $20 in court information technology (IT) user surcharges;
and a $100 per day probation supervision fee. Pope timely appealed.
STANDARDS OF REVIEW
¶16 We review a district court’s decision regarding matters of discovery for abuse of
discretion. State v. Golder, 2000 MT 239, ¶¶ 7, 11, 301 Mont. 368, 9 P.3d 635. A


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district court abuses its discretion if it acts arbitrarily without conscientious judgment or
exceeds the bounds of reason resulting in substantial injustice. State v. Dunning, 2008
MT 427, ¶ 21, 347 Mont. 443, 198 P.3d 828. Statutory interpretation is a question of law
that we review to determine whether a district court is correct. Dunning, ¶ 22.
¶17 We review for legality a criminal sentence imposing over one year of
incarceration. State v. Moore, 2012 MT 95, ¶ 10, 365 Mont. 13, 277 P.3d 1212. We
review de novo whether the district court adhered to the applicable sentencing statute.
Moore, ¶ 10.
DISCUSSION
¶18 Issue One: Whether the District Court erred in determining the State had not violated its disclosure obligations when the State refused to produce a videotaped witness interview based on the claim that it was work product and not exculpatory.
¶19 Pope argues the District Court erred by relying on the State’s incorrect
representation of Montana’s discovery statutes as only requiring production of witness
names and contact information and exculpatory information. Pope contends the State
improperly withheld the video-recorded interview, which is evidence of Myers recanting
her previous statement to defense counsel, in violation of § 46-15-322, MCA, that
obligates the State to disclose all witness statements regardless of whether the statements
are exculpatory or inculpatory. Pope asserts remand is required for the District Court to
hold a factual hearing to properly assess the State’s discovery violations and what
sanctions, if any, are appropriate including whether Pope is entitled to a new trial.
¶20 The State concedes on appeal that it was required to produce the recorded
interview of Myers upon Pope’s request. However, the State argues that Pope cannot


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demonstrate that the State’s failure to produce the interview prejudiced his defense. The
State maintains that the interview contains no exculpatory information favorable to
Pope’s defense, and that there was no unfair surprise because Myers’ recorded statement
is consistent with her original statements to medical personnel and her testimony at trial.
The State asserts, therefore, that there is no reasonable probability that its withholding the
video affected the outcome of Pope’s trial.
¶21 Section 46-15-322, MCA, provides “the prosecutor shall make available to the
defendant for examination and reproduction the following material and information
within the prosecutor’s possession or control . . . the names, addresses, and statements of
all persons whom the prosecutor may call as witnesses in the case in chief.” Section
46-15-322(1)(a), MCA (emphasis added). Parties have a statutory “continuing duty to
disclose”:
If at any time after a disclosure has been made any party discovers additional information or material that would be subject to disclosure had it been known at the time of disclosure, the party shall promptly notify all other parties of the existence of the additional information or material and make an appropriate disclosure.
Section 46-15-327, MCA. A “statement” is defined as “(a) a writing signed or otherwise
adopted or approved by a person; (b) a video or audio recording of a person’s
communications or a transcript of the communications; and (c) a writing containing a
summary of a person’s oral communications or admissions.” Section 46-1-202(26),
MCA (emphasis added). “The prosecutor’s obligation of disclosure extends to material
and information in the possession or control of members of the prosecutor’s staff . . . .”
Section 46-15-322(4), MCA.


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¶22 The purpose of Montana’s discovery statutes is to enhance the search for truth “by
granting full notification of each side’s case-in-chief so as to avoid unnecessary delay and
surprise at trial.” State v. Waters, 228 Mont. 490, 495, 743 P.2d 617, 620-21 (1987)
(citations and quotation marks omitted). “The policy behind § 46-15-322, MCA, is to
provide notice and prevent surprise.” State v. Stewart, 2000 MT 379, ¶ 22, 303 Mont.
507, 16 P.3d 391. In criminal cases, discovery serves “to provide adequate information
for informed pleas, expedite trials, minimize surprise, afford opportunity for effective
cross-examination, and meet the requirements of due process . . . .” State v. Burns, 253
Mont. 37, 40, 830 P.2d 1318, 1320 (1992) (quoting ABA Discovery and Procedure
Before Trial, § 1.2 (1974)). Continued disclosures prevent surprise at trial. Stewart, ¶ 22
(holding the State violated its continuing duty of disclosure for failing to produce
evidence before trial and the district court erred by admitting that evidence).
¶23 Although, § 46-15-322(1)(e), MCA, expressly mandates the State produce all
material and information that is considered “exculpatory”, the plain language of
subsections (1)(a) through (d) and (2)(a) through (c), obligates the State to disclose all
material and information listed whether exculpatory or inculpatory. State v. Licht, 266
Mont. 123, 129, 879 P.2d 670, 673-74 (1994). “It is not up to the State or its agents to
determine whether any such material or information is inculpatory or exculpatory; the
legislature has left that decision to the defendant.” Licht, 266 Mont. at 129, 879 P.2d at
674-75.
¶24 Moreover, witness statements are not within the scope of work product protected
from disclosure under § 46-15-324, MCA, because § 46-15-322(a), MCA, explicitly


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requires production of all witness statements. The Legislature chose to narrow the
definition of “work product” in the criminal code to: “legal research, records,
correspondence, reports, and memoranda, both written and oral, to the extent that they
contain the opinions, theories, and conclusions of the prosecutor, defense counsel, or their
staff or investigations.” Section 46-1-202(31), MCA. In contrast, the civil code broadly
provides “a party may not discover documents and tangible things that are prepared in
anticipation of litigation or for trial . . . .” M. R. Civ. P. 26(b)(3)(A). Had the Legislature
intended to protect witness statements “prepared in anticipation of litigation” in criminal
cases, as in civil cases, it would have included witness statements in the definition of
work product. See In re T.N.-S, 2015 MT 117, ¶ 36, 379 Mont. 60, 347 P.3d 1263
(“When the legislature includes language in one part of a statute, but omits it from a
related statute or another part of the same statute, the omission is presumed to be
intentional.”).
¶25 District courts are endowed with the authority to impose sanctions commensurate
with the failure to comply with the discovery statutes:
If at any time during the course of the proceeding it is brought to the attention of the court that a party has failed to comply with any of the provisions of this part or any order issued pursuant to this part, the court may impose any sanction that it finds just under the circumstances, including but not limited to: (1) ordering disclosure of the information not previously disclosed; (2) granting a continuance; (3) holding a witness, party, or counsel in contempt for an intentional violation; (4) precluding a party from calling a witness, offering evidence, or raising a defense not disclosed; or (5) declaring a mistrial when necessary to prevent a miscarriage of justice.


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Section 46-15-329, MCA. The State concedes it wrongfully withheld Myers’
video-recorded statement. There is no question, therefore, that the District Court erred
when it denied Pope’s request that the State be ordered to produce it. Although the State
argues it should not be sanctioned for wrongfully withholding the statement because, it
contends, Pope was not prejudiced, that is not for this Court to assess at this juncture.
“Imposition of sanctions is a matter best left to the sound discretion of the district court.
Such discretion allows the court to consider the reason why disclosure was not made,
whether noncompliance was willful, the amount of prejudice to the opposing party, and
any other relevant circumstances.” Waters, 228 Mont. at 495, 743 P.2d at 621.
¶26 It makes little sense that a party could commit a discovery abuse at trial, admit it
on appeal, and then argue that its discovery abuse should not even be reviewed for
imposition of an appropriate sanction. Although many of the specifically enumerated
sanctions in § 46-15-329, MCA, are no longer applicable, the statute expressly does not
limit the available sanctions to those enumerated. Rather, the statute prescribes that the
court may “impose any sanction that it finds just under the circumstances.” Section
46-15-329, MCA (emphasis added).
¶27 The State wrongfully withheld Myers’ video-recorded statement. The District
Court erred when it denied Pope’s request that the State be ordered to produce Myers’
video-recorded statement. We remand to the District Court to determine the appropriate
sanctions for the State’s discovery abuse.


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¶28 Issue Two: Whether the District Court failed to determine Pope’s ability to pay costs and fees before imposing them.
¶29 As noted above, when the District Court considers the appropriate sanction to
impose on remand, it may impose any sanction that it finds just under the circumstances.
Within that panoply of options are sanctions which may or may not render this issue
moot. Without speculating on what sanction the District Court may find to be just under
the circumstances on remand, we conclude it is premature to address this issue at this
time.
¶30 Issue Three: Whether the District Court erred in imposing the information technology user surcharge per count and not per user.
¶31 As with Issue Two, our resolution of whether the District Court erred by imposing
the IT user surcharge per count may be rendered moot depending upon what sanction the
District Court may find to be just under the circumstances on remand. However, the
State concedes the imposition of the IT user surcharge per count and not per user is
illegal under § 3-1-317(a), MCA. We agree.
¶32 The District Court imposed “Court Technology Fees” totaling $20—two $10 fees
for each count on which Pope was convicted—pursuant to § 3-1-317(a), MCA. The
statute authorizes all courts to impose “on a defendant in criminal cases, a $ 10 user
surcharge for any conduct made criminal by state statute . . . .” Section 3-1-317(1)(a),
MCA (emphasis added). The plain language of the statute titled “User Surcharge for
court information technology” implies the surcharge is authorized per user upon


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conviction, and not per conviction of that user. The District Court erred when it imposed
the “Court Technology Fees” per count instead of per user.
CONCLUSION

Outcome: