State v. Montgomery, 022117 IDCCR, 43795

Docket Nº:43795
Opinion Judge:HUSKEY, JUDGE
Party Name:STATE OF IDAHO, Plaintiff-Respondent, v. DANIEL MONTGOMERY, Defendant-Appellant.
Attorney:Eric D. Fredericksen, State Appellate Public Defender; Elizabeth A. Allred, Deputy Appellate Public Defender, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.
Judge Panel:Chief Judge GRATTON and Judge MELANSON CONCUR.
Case Date:February 21, 2017
Court:Court of Appeals of Idaho
 
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STATE OF IDAHO, Plaintiff-Respondent,

v.

DANIEL MONTGOMERY, Defendant-Appellant.

No. 43795

Court of Appeals of Idaho

February 21, 2017

2017 Opinion No. 17

Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Cynthia K. C. Meyer, District Judge.

Judgment of conviction, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Elizabeth A. Allred, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.

HUSKEY, JUDGE

Daniel Montgomery appeals from his judgment of conviction after a jury found him guilty of unlawful discharge of a firearm at a house, occupied building, vehicle, etc. Montgomery argues the district court abused its discretion when it allowed the State's undisclosed witnesses to testify on rebuttal. Additionally, Montgomery argues the State committed prosecutorial misconduct, resulting in a violation of his right to a fair trial. The district court did not err when it determined that rebuttal witnesses need not be disclosed pursuant to Idaho Criminal Rule 16(b)(6), but even if that was error, the error was harmless. Additionally, the State did not engage in prosecutorial misconduct during its closing argument. We affirm the district court's decision.

I. FACTUAL AND PROCEDURAL BACKGROUND

One evening, a vehicle swerved through a neighborhood and struck a trash can. The vehicle drove to the end of the street, turned around, and began to drive back in the opposite direction. Montgomery walked to the middle of the street and pointed his gun at the approaching vehicle, forcing it to stop. Once stopped, the driver exited the vehicle and spoke with Montgomery. Accounts differ as to the length and the topic of the conversation. The driver returned to his vehicle, started driving forward, and struck Montgomery, at which point Montgomery fired his gun at the vehicle. The two occupants of the vehicle drove away unharmed.

The State charged Montgomery with two counts of aggravated assault, Idaho Code §§ 18-901, 19-2520, 18-905, and one count of unlawful discharge of a firearm at an occupied vehicle, I.C. §§ 18-3317, 19-2520. Montgomery filed a request for discovery pursuant to I.C.R. 16(b)(1-8), and the State provided a witness list as well as a supplemental witness list. After the preliminary hearing, the first count of aggravated assault toward the driver of the vehicle was dismissed because of insufficient evidence. An information was filed and charged Montgomery with one count of aggravated assault of the vehicle's passenger and one count of unlawful discharge of a firearm at a vehicle.

At trial, the State called five witnesses to testify about the events. After the State rested, Montgomery called his wife and his daughter to testify about what they observed on that night. Montgomery also called three neighbors who recounted what they saw during the incident. Finally, Montgomery testified not only about what happened during the altercation, but also about visiting the hospital the day after the incident and a hip injury he later discovered. Once the defense rested, the State called four rebuttal witnesses, although only the first two witnesses were disclosed on the State's witness lists prior to trial. The first rebuttal witness related his conversation with Montgomery after the altercation regarding Montgomery's injuries. The second rebuttal witness described his conversation with Montgomery at the police station on the night in question. This witness testified about the discrepancy between the video surveillance recording of the events and Montgomery's explanation at the police station and at trial about when his gun was drawn.

Before the third rebuttal witness testified, Montgomery objected that the two remaining rebuttal witnesses were not disclosed prior to trial and as a result, should not be permitted to testify. The trial court relied on precedent and the relevance of their testimony as the basis for overruling the objection. The third witness, who was not disclosed in the State's pretrial witness list, testified regarding Montgomery's good health when he was booked into jail. The fourth, another undisclosed rebuttal witness, testified regarding the bullet holes in the car tire and other damage to the vehicle.

The jury found Montgomery not guilty of aggravated assault. The jury found Montgomery guilty of unlawful discharge of a firearm at a vehicle. The district court imposed an eight-year sentence, with four years determinate, suspended the sentence, and placed Montgomery on probation. Montgomery timely appeals.

II. ANALYSIS

A. We Are Constrained to Hold the District Court Acted Consistently With the Applicable Legal Standards When It Determined the State Was Not Required to Disclose Its Rebuttal Witnesses Pursuant to I.C.R. 16(b)(6)

Montgomery argues the district court abused its discretion when it allowed the State to present the testimony of two undisclosed rebuttal witnesses. Montgomery asserts the plain language of I.C.R. 16(b)(6) requires the State to disclose all witnesses who may testify. He further argues the failure to disclose the rebuttal witnesses should have resulted in the exclusion of their testimony. Although Idaho courts have ruled otherwise, Montgomery argues the plain language of I.C.R. 16(b)(6) and the 1989 amendment to I.C. § 19-1302 require the disclosure of any potential witness; therefore, rendering any opinion issued subsequent to the amendment incorrect.

When a party has failed to comply with discovery, the trial court may impose sanctions including, in appropriate circumstances, the exclusion of a witness. I.C.R. 16(f)(2), 16(j); State v. Miller, 133 Idaho 454, 456-57, 988 P.2d 680, 682-83 (1999); State v. Harris, 132 Idaho 843, 846, 979 P.2d 1201, 1204 (1999); State v. Lamphere, 130 Idaho 630, 633, 945 P.2d 1, 4 (1997). Sanctions serve the dual purposes of encouraging compliance with discovery and punishing misconduct. Roe v. Doe, 129 Idaho 663, 667, 931 P.2d 657, 661 (Ct. App. 1996). The choice of an appropriate sanction, or whether to impose a sanction at all, for a party's failure to comply with a discovery request or order is within the discretion of the trial court. State v. Stradley, 127 Idaho 203, 207-08, 899 P.2d 416, 420-21 (1995); State v. Hawkins, 131 Idaho 396, 405, 958 P.2d 22, 31 (Ct. App. 1998). To determine whether a sanction will be imposed and what it will be, the trial court must weigh the equities, balancing the culpability of the disobedient party with the resulting prejudice to the innocent party in light of the twin aims of the sanction power. State v. Anderson, 145 Idaho 99, 105, 175 P.3d 788, 794 (2008); Roe, 129 Idaho at 667, 931 P.2d at 661. In reviewing a discretionary decision we ask: (1) whether the trial court correctly perceived the issue as one of discretion, (2) whether the trial court acted within the boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it, and (3) whether the trial court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).

In reviewing whether the trial court abused its discretion, Montgomery does not argue the court failed to perceive the issue as one of discretion. Additionally, we hold that although Montgomery asserts the district court "did not reach its decision when it allowed [Rebuttal Witness 1] and [Rebuttal Witness 2] to testify based upon an exercise of reason, " this argument is without merit. The district court listened to arguments from both parties at trial, considered the statutory language of the Idaho Criminal Rules and Idaho Code, analyzed the case precedent, and concluded that despite the State's failure to disclose the rebuttal witnesses, in its discretion, the court could allow the undisclosed rebuttal witnesses to testify. This analysis demonstrates a sufficient exercise of reason. The issue, therefore, relates only to the second prong of the Hedger standard: whether the trial court acted within the boundaries of its discretion and consistent with the legal standards applicable to the choices available.

It is undisputed that Montgomery served a request for discovery, pursuant to I.C.R. 16. In this request for discovery, Montgomery asked for the following: 6. A written list of the names, addresses, phone numbers and/or other reasonable means of contact for all persons having knowledge of relevant facts who may be called by the prosecuting attorney as witnesses at trial, together with a NCIC report and a Spillman report of any such persons. Also the statements made by the prosecution witnesses or prospective witnesses, made to the prosecuting attorney or his...

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