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State v. Pope

Supreme Court of Montana

January 18, 2017

STATE OF MONTANA, Plaintiff and Appellee,
JODY JAKE POPE, Defendant and Appellant.

          Submitted on Briefs: November 10, 2016

         APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC 2013-195 Honorable James A. Haynes, Presiding Judge

          For Appellant: Chad Wright, Chief Appellate Defender, Jennifer Hurley, Assistant Appellate Defender, Helena, Montana

          For Appellee: 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, Hamilton, Montana



         ¶1 Defendant Jody Jake Pope appeals the June 27, 2014 order denying his motion for mistrial and the September 18, 2014 judgment imposing certain fees, surcharges and costs by the Twenty-First Judicial District Court, Ravalli County. We address the following issues:

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.
Issue Two: Whether the District Court failed to determine Pope's ability to pay costs and fees before imposing them.
Issue Three: Whether the District Court erred in imposing the information technology user surcharge per count and not per user.

         ¶2 We reverse and remand for further proceedings consistent with this Opinion.


         ¶3 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.

         ¶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 ...

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