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State v. Pope

Supreme Court of Montana

August 20, 2019

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

          Submitted on Briefs: July 10, 2019

          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, Appellate Defender, Gregory Hood, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Damon Martin, Assistant Attorney General, Helena, Montana William E. Fulbright, Ravalli County Attorney, Thorin Geist, Deputy County Attorney, Hamilton, Montana



         ¶1 In 2017, we decided State v. Pope, 2017 MT 12, 386 Mont. 194, 387 P.3d 870 (Pope I), which, in relevant part, remanded the matter to the Twenty-First Judicial District Court, Ravalli County, to determine the appropriate sanction for discovery abuse by the State. Jody Jake Pope (Pope) appeals following the District Court's July 6, 2017, Sanction Order on Remand, which issued financial sanctions against the State and denied his request for a new trial. We affirm.

         ¶2 We restate the issue on appeal as follows:

         Did the District Court abuse its discretion by issuing only a financial sanction against the State for discovery abuse?


         ¶3 The factual background regarding the underlying offense in this matter was set forth in our decision in Pope I and need not be completely repeated here. In 2013, Pope was charged with attempted deliberate homicide, assault with a weapon, and driving while license suspended or revoked after an incident in which the State alleged that Pope intentionally hit his then-girlfriend, Susan Myers (Myers), with his van on Highway 93 in Ravalli County. In January 2014, Myers wrote to the District Court and stated that Pope did not hit her with his van. Myers similarly told defense counsel that the incident was overblown and that nothing happened during interviews prior to trial.

         ¶4 During jury selection on the first day of trial in June 2014, the State's investigator, James Hulme (Hulme), conducted a recorded interview with Myers. During this interview, Myers told Hulme that Pope had indeed driven at her and struck her with his van. Myers stated that she had injured her ribs in the collision and that she believed she was knocked unconscious by the impact. After court proceedings ended that day, Deputy County Attorney Thorin Geist (Geist) viewed the video of Hulme's interview with Myers. Geist determined that the State would not disclose the video to Pope, and informed Pope's counsel, Jennifer Streano (Streano), that Hulme had met with Myers, but did not inform her that the interview was recorded. Streano was not able to re-interview Myers herself.

         ¶5 Trial resumed the next day, and Geist informed Streano shortly before Myers was set to testify that Hulme's interview with Myers the previous day was in fact recorded. Streano informed the District Court, requested the State produce the video, and asked for time to review the video before Myers testified. The State refused to produce the video. The District Court ruled that the State did not have to produce the video, and Myers ultimately testified consistently with her statements to Hulme the previous day and contradicted her other pre-trial statements regarding the incident. Myers testified that Pope "drove the van" at her and "tried to hit" her with the van. Myers further testified that her previous inconsistent statements were made to "try to help," and to her belief that Pope's counsel had "tricked" her.

         ¶6 After the State rested its case, Streano again argued that the State should have provided the video of Myers's interview and that she was unable to properly impeach Myers's credibility because Myers's testimony was so different than that given in her other pre-trial interviews. After the settling of jury instructions, Streano asked to view the video overnight to determine issues she should raise with the District Court to preserve for appeal. The State again refused to produce the video and the District Court sealed the video and placed it in the record.

         ¶7 Before trial resumed the next day, Pope moved for a mistrial as a sanction for the State's failure to provide the video of Myers's interview with Hulme. Pope asserted that he would have presented his case differently had he known that Myers was going to change her testimony from her earlier statements about the incident. The District Court denied Pope's motion for a mistrial and found that the State had no obligation to disclose the video. The jury found Pope not guilty of attempted deliberate homicide, but guilty of assault with a weapon and driving while license suspended or revoked. The District Court sentenced Pope on the assault with a weapon charge to the Department of Corrections (DOC) for ...

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