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State v. Akers

Supreme Court of Montana

December 19, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
LEE COCHRAN AKERS, Defendant and Appellant.

          Submitted on Briefs: October 25, 2017

         APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DC 16-10 Honorable Brenda Gilbert, Presiding Judge

          For Appellant: Chad Wright, Chief Appellate Defender, James Reavis, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana Bruce E. Becker, Park County Attorney, Kathleen Carrick, Deputy County Attorney, Livingston, Montana.

          OPINION

          Laurie McKinnon Justice.

         ¶1 Lee Cochran Akers (Akers) appeals from an order of the Sixth Judicial District Court, Park County, on appeal from the Park County Justice Court (Justice Court). The District Court's order denied Akers's motion to dismiss, affirmed the Justice Court's judgment, and remanded the case to the Justice Court to enforce its judgment. We reverse and remand for further proceedings consistent with this Opinion.

         ¶2 Akers presents three issues on appeal. First, Akers argues the Justice Court erred by not instructing the jury that the State carried the burden of proving Akers's actions were not a justifiable use of force. Second, Akers argues his trial counsel was ineffective for failing to request such an instruction. Third, Akers argues he was denied the right of confrontation when the State presented its witnesses through Skype testimony. We conclude that the Justice Court erred by not instructing the jury that the State carried the burden of proving Akers's actions were not a justifiable use of force and reverse. Accordingly, it is unnecessary to address Akers's ineffective assistance of counsel claim. Further, because these proceedings are being remanded, we decline to issue an advisory opinion addressing the propriety of the State's use of Skype testimony. We restate the dispositive issue as follows:

         Whether this Court should exercise plain error review to reverse Akers's conviction because the jury was not instructed on the burden of proof for justifiable use of force.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 Akers travelled from Tennessee to Montana with four friends, Terri Gilley (Gilley), Myron Tipton (Tipton), Terri McFarland, and Scott Marcha, to attend a music concert. While in Montana, the group also visited Yellowstone National Park and stayed in a cabin in Park County. Gilley and Akers had several arguments during the trip and on September 1, 2015, a physical altercation ensued. As a result, Gilley left the cabin and contacted local police. Park County Sheriff's Deputy Pete Adams (Adams) met with Gilley and observed a scratch on her cheek and several bruises on both of her arms. Adams subsequently arrested Akers and cited him with misdemeanor assault.

         ¶4 The facts surrounding the physical altercation are disputed. According to Gilley, in response to something Akers said, Gilley threw a cup containing ice and soda at Akers's head. After throwing the cup at Akers, Gilley attempted to run away, but Akers grabbed Gilley, shoved her, and hit her several times. Akers presents a different version of the incident. Akers maintains that, without provocation, Gilley threw the cup and contents at his head and then approached him. Akers then grabbed Gilley's wrists to prevent her from scratching or hitting him. Holding onto her wrists, Akers attempted to back Gilley out of the cabin's front door, but Gilley fell to the floor and she, again, tried to scratch him from her position on the floor. Akers believes it was at this point that Gilley scratched herself in the face.

         ¶5 Prior to trial, the State filed a motion to allow testimony of witnesses at trial through Skype, a software application and video conferencing platform, which allows for real-time audio and video telecommunication. The State cited the burden of travel as its cause for filing the motion. On December 22, 2015, the Justice Court granted the State's motion in a single-sentence order.

         ¶6 The Justice Court held a jury trial on January 29, 2016. At trial, Akers relied on the defense of justifiable use of force. Akers presented witnesses who testified to a version of the incident largely consistent with his own. The State presented witnesses who testified to a version of the incident largely consistent with Gilley's. Gilley testified through Skype from Tennessee. The State presented an additional rebuttal witness, Sheldon Ziro, who also testified through Skype from Tennessee. Akers's witnesses all testified personally in court. The jury convicted Akers of assault and the Justice Court sentenced him to pay a fine of $300, court costs of $85, and jury costs of $806.52. The Justice Court stayed enforcement of its judgment pending Akers's appeal to the District Court.

         ¶7 On appeal, Akers filed a motion to dismiss and raised two arguments. First, Akers argued Article VII, Section 4, of the Montana Constitution, entitled him to a trial de novo in the District Court because the Justice Court judge was not an attorney. Second, Akers argued the confrontation clause of the Sixth Amendment to the United States Constitution; Article II, Section 24, of the Montana Constitution; M. R. Evid. 611(e); and § 46-16-201, MCA, entitled him to confront the witnesses against him in person, not through Skype. The District Court ...


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