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State v. Hetrick

Supreme Court of Montana

April 16, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
JUSTIN EUGENE HETRICK, Defendant and Appellant.

          Submitted on Briefs: March 6, 2019

          APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC 15-269(C) Honorable Heidi Ulbricht, Presiding Judge.

          For Appellant: Chad Wright, Appellate Defender, Lisa S. Korchinski, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana Ed Corrigan, Flathead County Attorney, Andrew C. Clegg, Deputy County Attorney, Kalispell, Montana

          OPINION

          Laurie McKinnon Justice.

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Justin Eugene Hetrick (Hetrick) appeals from an order of the Eleventh Judicial District Court, Flathead County, denying his motion to exclude eyewitness identifications for improper photographic lineup procedure. We affirm.

         ¶3 Around 9:00 p.m. on March 28, 2014, a man confronted a woman, Suzanne, in a Columbia Falls grocery store parking lot. The man grabbed Suzanne's purse and used a knife to cut the purse's strap, cutting Suzanne's thumb in the process. The man fled on foot. Two people, Julian and Jamie, witnessed the robbery and briefly interacted with the man as the robbery was occurring and as the perpetrator fled. Responding officers eventually identified Hetrick as a suspect.

         ¶4 Officers later asked Suzanne, Julian, and Jamie to look at a photographic lineup. The officers compiled a six-photograph lineup with Hetrick's photograph in the last position, number six. There exists little documentation about how the officers presented the lineups to each witness, and we rely on Hetrick's recitation of the facts to describe the process. Suzanne was initially unable to make an identification but eventually indicated that the person who robbed her was either number four (another individual) or number six (Hetrick). Suzanne later stated that an officer indicated that two or three of the pictured men "were definitely not suspects" and that the officer "seemed to want [her] to pick somebody out" of the photographic lineup. Julian did not identify a suspect. Jamie selected number six (Hetrick) but, according to the officers, she waffled between number six and another photograph for a period of time. Jamie and the officers later disagreed as to how long she looked at the photographs-Jamie said she looked at the photographs for a few minutes while the officers said she looked at them between ten and fifteen minutes. The officers reported that less than a week later, Jamie returned for a second review of the photographic lineup, with the same six photographs. Jamie did not recall that second meeting.

         ¶5 In July 2015, the State charged Hetrick with felony robbery and felony assault with a weapon based on its belief that he committed the Columbia Falls robbery. Hetrick pleaded not guilty. In October 2015, the District Court issued a scheduling order. The order scheduled an omnibus hearing in November 2015, a pretrial hearing in December 2015, and a jury trial in January 2016. The order stated, "All motions with accompanying briefs, other than Motions in Limine, shall be filed at or before the omnibus hearing pursuant to statute." At the November 2015 omnibus hearing, Hetrick indicated that he had received full discovery from the State except for information he requested regarding the photographic lineup procedure. He also indicated that he planned to rely on the defense of mistaken identity and that he planned to move to suppress evidence from the photographic lineups based on improper procedure.

         ¶6 In December 2015, the District Court continued the scheduled trial at Hetrick's request. The court issued an amended scheduling order, scheduling another omnibus hearing in early-March 2016. The order again stated, "All motions with accompanying briefs, other than Motions in Limine, shall be filed at or before the omnibus hearing pursuant to statute." The court scheduled a pretrial hearing in mid-March 2016 and a jury trial in May 2016.

         ¶7 Prior to the March 2016 omnibus hearing, Hetrick filed a notice of defense, indicating he intended to rely on the defense of mistaken identity. At the March 2016 omnibus hearing, Hetrick indicated he received discovery and that it was ongoing. Unlike at the November 2015 omnibus hearing, where Hetrick stated that he planned to move to suppress evidence from the photographic lineups based on improper procedure, at the March 2015 omnibus hearing, Hetrick did not mention the photographic lineup procedure nor did he otherwise move or indicate that he planned to move to suppress the evidence from the lineups.

         ¶8 In April 2016, the State filed an unopposed motion to continue the May trial because its main witness, Suzanne, was unavailable for the scheduled trial. The District Court granted the State's motion and issued an amended abbreviated scheduling order. In its amended abbreviated scheduling order, the court did not schedule another omnibus hearing. Instead, it scheduled a pretrial hearing in July 2016 and a jury trial in September 2016. Also in April 2016, Hetrick learned that, a few days before the Columbia Falls robbery occurred, a similar robbery took place in Kalispell. The perpetrator wore similar clothing, made similar actions, and used similar threats. An anonymous informant identified a suspect in the Kalispell robbery who was not Hetrick. Officers apparently knew about the Kalispell robbery early on in their investigation, around the time they had Suzanne, Julian, and Jamie look at the photographic lineups, but Hetrick did not learn about the robbery until April 2016.

         ¶9 In June 2016, the public defender's office assigned Hetrick new counsel. At the July 2016 pretrial hearing, Hetrick's new counsel stated that, when he reviewed Hetrick's case file, he noticed that Hetrick's former counsel indicated he planned to move to suppress evidence from the photographic lineups based on improper procedure at the November 2015 omnibus hearing but never filed the motion. Counsel candidly stated that the motion "arguably should have been filed by" the omnibus hearing. Nevertheless, Hetrick's new counsel stated that he filed a motion to the exclude the eyewitness identifications earlier in the day. In Hetrick's motion to exclude eyewitness identifications, he argued that the photographic lineup procedure utilized by the officers violated best practices, specifically identifying three main concerns. First, he criticized officers for not utilizing a double-blind testing procedure. Second, he criticized the use of a simultaneous photographic line-up, where multiple images are shown to a witness at once, over a sequential photographic line-up, where images are shown to a witness one at a time. Third, Hetrick argued that a photographic lineup was generally inappropriate in this case, were the robber used a weapon, because weapons draw ...


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