IN THE MATTER OF SHOOTING AT 60 BIG BUCK TRAIL, (DEBRA COOKSEY), Petitioner,
STATE OF MONTANA, HON. RANDAL I. SPAULDING, DISTRICT JUDGE, Respondents.
Petitioner Debra Cooksey has filed a petition for a writ of
supervisory control, seeking the return of firearms and
ammunition seized in a criminal proceeding in the Fourteenth
Judicial District Court, Musselshell County. Debra includes
several attachments, including a copy of a "Motion to
Compel Court Order Return of Seized Property" and the
State's Response to such motion, both filed in the
District Court. Before the State of Montana could file its
response to her petition, as directed by this Court's
December 18, 2018 Order, Cooksey filed a motion to stay
pending appeal. The State responds to both petition and
motion, requesting their denials and dismissals.
presented in her petition, Debra seeks fulfillment of a
December 13, 2010 Order Granting Motion for Release of
Property, issued in the Fourteenth Judicial District Court,
Musselshell County (Cause No. SW-09-13). In September 2010, a
jury convicted Bobby Cooksey, Debra5s husband, of deliberate
homicide in the District Court (Cause No. DC-09-13). Debra
explains that the Musselshell County District Court granted
her request for the return of several guns, rifles, and
ammunition. She states, however, that she has never received
this property. Debra includes a copy of the 2010'
District Court's Order, relinquishing the firearms and
ammunition to Debra, and ordering that Debra make
arrangements to retrieve the property. In Debra's motion
to stay pending appeal, she claims that this property was
"determined to be hers alone." She includes a copy
of a December 31, 2018 District Court's Order Denying
Motion to Compel with her motion for a stay.
State argues that Debra's petition is not appropriate for
supervisory control. The State responds that Debra leaves out
the procedural history between 2010 and 2018. The State
points to this Court's 2012 Opinion where we stated:
On June 24, 2011, Bobby Cooksey's wife Debra appeared in
this case through counsel and moved to intervene in the
appeal to raise issues concerning satisfaction of restitution
ordered as part of Bobby Cooksey's sentence. This Court
granted that motion over the State's objection that Debra
Cooksey had no standing to intervene in Bobby Cooksey's
appeal of his criminal conviction. The District Court
determined that Debra Cooksey failed to support her claim of
ownership in the property or her claim that the property was
exempt from execution to satisfy the restitution owed by
Bobby Cooksey. Bobby Cooksey did not raise any issue on
appeal concerning his sentence or the portion of the sentence
that required him to pay restitution. After further
consideration this Court has concluded that the motion to
intervene was improvidently granted.
For the reasons stated above, the motion of Debra Cooksey to
intervene is denied.
State v. Cooksey, 2012 MT 226, ¶¶ 47-48,
366 Mont. 346, 286 P.3d 1174. The State points out that this
Court denied Debra's motion to intervene in the criminal
proceeding. The State contends that Debra has no lawful claim
to this property because the property is to be part of the
restitution for the family of Bobby Cooksey's victim.
State reiterates that the December 13, 2010 Order, to which
Debra refers, has been superseded by multiple subsequent
proceedings. The State provides that while Debra moved the
District Court to compel the return of this property in July
2018, the District Court has since ruled on her motion after
she sought extraordinary relief with this Court. The State
also includes a copy of a December 31, 2018 District
Court's Order,  which outlined the earlier proceedings for
Debra's late husband, Bobby Cooksey, and his criminal
matter. The District Court stated last month:
Mr. and Mrs. Cooksey have been afforded multiple
opportunities to establish ownership of and their entitlement
to the guns and ammunition at issue, both at the trial court
level and on appeal. Despite such, they have failed to do so.
This [c]ourt long ago declared as much such and, at least
with respect to Mr. Cooksey, the Supreme Court affirmed as
this [c]ourt's order concluding that he did not timely
appeal the Court's April 18, 2011 Order Denying
Debtor's Claimed Exemptions. Neither has Mrs.
Cooksey. For the foregoing reasons as well as those noted in
the State's response, Mrs. Cooksey's "Motion to
Compel Court Order return of seized Property" should be
denied and the guns and ammunition at issue sold and the
proceeds applied to Mr. Cooksey's restitution obligation
as previously ordered by this [c]ourt."
Denying Motion to Compel, at 6 (Fourteenth Judicial Dist. Ct.
Dec. 31, 2018) (footnote added). The State concludes that her
petition for a writ of supervisory control should be denied
because Debra has an adequate remedy of appeal.
State refers to Debra's recently filed motion for a stay
pending appeal. The State highlights that Debra shows no
legal authority for her request nor does she have an appeal
pending. M. R. App. P. 22. The State contends that she has
presented no sufficient argument for a stay in an original
proceeding here and that she has no legal standing in the
criminal proceeding below.
Court's finds the State's arguments very persuasive.
We conclude that neither supervisory control or mandamus are
appropriate here because Debra is not entitled to possession
of this property. Therefore, IT IS ORDERED that Debra's
Petition for a Writ of Supervisory Control and Debra's
Motion for Stay Pending Appeal are DENIED and DISMISSED.
Clerk of the Supreme Court is directed to provide a copy of
this Order to the Hon. Randal I. Spaulding, Fourteenth
Judicial District Court; to all counsel of record; to Michael
H. Thomas, Musselshell County Sheriff; and to Petitioner
Debra Cooksey personally.