State of Mont. v. CHARLIE
| Decision Date | 07 September 2010 |
| Docket Number | No. DA 09-0430.,DA 09-0430. |
| Citation | 2010 MT 195,239 P.3d 934,357 Mont. 355 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Anthony Scott CHARLIE, Defendant and Appellant. |
| Court | Montana Supreme Court |
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For Appellant: Lisa B. Kauffman, Attorney at Law, Missoula, Montana.
For Appellee: Steve Bullock, Montana Attorney General, Tammy K. Plubell, Assistant Attorney General, Helena, Montana, Fred Van Valkenburg, Missoula County Attorney, Andrew Paul, Deputy County Attorney, Missoula, Montana.
¶ 1 Appellant Anthony Scott Charlie (Charlie) appeals from his felony conviction of criminal possession of dangerous drugs in the Fourth Judicial District Court. We affirm.
¶ 2 On June 7, 2008, Charlie was driving his father's car in Missoula, Montana, with his then-pregnant girlfriend Ronna Elledge (Elledge) in the passenger seat. Officers Sean Lenahan and Rico Suazo of the Missoula City Police Department observed Charlie run a stop sign at the intersection of North Russell and Phillip streets. The officers pulled Charlie over. Officer Suazo made contact with Charlie and informed him why he was being pulled over. Charlie was unable to provide a driver's license, proof of insurance or registration upon request. According to the officers, neither Charlie nor Elledge would make eye contact with them, were speaking rapidly, and seemed very nervous. Officer Suazo claimed that he observed Charlie moving around in his seat and touching items in the middle console. Officer Lenahan claims he observed Elledge attempting to push a white purse beneath the passenger seat. Other patrol vehicles subsequently responded to the scene.
¶ 3 Officer Suazo ran a status check and found that Elledge had an active, out-of-county warrant for her arrest. The officers also learned that Charlie was currently on probation. The officers sought consent to search the vehicle. Charlie phoned his father to ask him if he would consent to the search, since it was his father's car. His father refused to give consent. The officers subsequently contacted Charlie's probation officer, Officer Andrea Bethal, and described Charlie's behavior and their observations. Officer Bethal authorized a probationary search of the vehicle. Pursuant to the search, officers discovered marijuana in Elledge's purse, baggies of marijuana in a paper bag in the glove box, and various items of paraphernalia. At the time, Elledge told the officers that the marijuana was all hers.
¶ 4 On June 19, 2008, Charlie was charged with felony criminal possession with intent to distribute and misdemeanor possession of drug paraphernalia. Charlie was appointed assistant public defender Brian Smith (Smith) to represent him. On July 28, 2008, Smith filed a motion to suppress and request for a hearing, arguing the search of the car was illegal. On August 5, 2008, Charlie filed a pro se motion to withdraw the motion to dismiss and remove Smith as his court-appointed counsel. On August 13, the District Court ordered Smith to respond to the motion. On September 19, Smith filed a request for a hearing in order to address Charlie's objection to the motion to suppress. A status conference was held on October 7, and Charlie appeared in open court, again asking the District Court to withdraw the motion to suppress and appoint new counsel. The District Court directed Charlie to put in writing the reasons he would like new counsel, and indicated it would address Charlie's motion on October 14.
¶ 5 On October 14, Charlie appeared in open court with Smith. Upon Smith's motion, the District Court ordered that Charlie be allowed access to legal reference material in the detention facility, and the District Court set further proceedings for October 28. On that date, Charlie again appeared in open court with Smith, and Smith advised the court that Charlie claimed to have found information to support his legal defense. The District Court then set another status conference for November 18 in order to give Charlie additional time to file a brief. Smith then made a motion for the District Court to order the State to produce any videotapes from the patrol cars involved in the traffic stop. On November 18, Charlie and Smith again appeared in open court. The State advised the court that one of the police vehicles did have a video running, and that the video had been saved. At that time, the District Court indicated that Charlie's case had to go to trial prior to December 19 in order to ensure he received a speedy trial. Smith conferred with Charlie, and then advised the court that Charlie had no objection to temporarily stopping the speedy trial clock until the filing of his amended motion to suppress.
¶ 6 On December 1, 2008, Smith filed an amended motion to suppress and included a hand-written motion to suppress drafted by Charlie. On December 18, 2008, the District Court held an evidentiary hearing on the motion to suppress. Officers Lenahan, Suazo and Bethel both testified at the hearing. The District Court denied the motion on December 19, 2008, and set the matter for jury trial on January 5, 2009.
¶ 7 On December 30, 2008, the State produced the in-car videotape from the patrol car driven by Officers Lenahan and Suazo. The video contained evidence of Charlie's arrest which was not previously known to the State or Smith. According to the State, the video had not been properly tagged so that it would be uploaded by the evidence technician, which is why it had not been previously discovered. On December 31, 2008, Smith and the State conferred with Judge Harkin by telephone, without Charlie present since he was incarcerated at the time and not immediately available, to discuss the video in relation to Charlie's upcoming trial. Smith and the State agreed to vacate the January 5 trial date so that Smith would have time to evaluate the impact of the video on Charlie's case. On January 6, 2009, Charlie appeared in District Court with Smith, and Judge Harkin informed him of what had transpired at the December 31 telephonic conference. Judge Harkin explained to Charlie that the video had to be enhanced before it would be viewable and that the individual who could enhance it was not available until January 5. Since the video would not be ready in time, it was decided that Charlie's case could not go to trial as scheduled. Judge Harkin apologized to Charlie for being unable to include him on the phone call, but explained that this matter arose quickly and Charlie was incarcerated. Judge Harkin then asked Charlie if that was acceptable to him, and Charlie responded “Yes.” Judge Harkin then stated that “I want him to be up to speed so there's no question about we talked when he wasn't present.”
¶ 8 At that same hearing, Smith then informed the District Court that he was withdrawing from Charlie's case, presumably due to a conflict of interest within the public defender's office, and would be replaced by Lisa Kauffman. Ms. Kauffman was present at the time, and the District Court asked her whether she would be ready for trial next week. She informed the court that she would need 24 hours to let the court know.
¶ 9 On January 13, 2009, Kauffman appeared in District Court to discuss the status of Charlie's case. She informed the District Court that she would need to review the transcripts of the December 18, 2008 suppression hearing in order to evaluate the impact of the newly-discovered video, but the court reporter informed her that the transcripts would not be ready for at least several weeks. The District Court asked Kauffman how she wanted to handle the situation, and whether she planned to raise speedy trial issues if the trial was delayed. Kauffman stated that she had not yet made a demand for a speedy trial, but was also unwilling to waive Charlie's speedy trial right at that time. In light of the situation presented, the District Court set a status conference for February 17, 2009, to discuss a trial date, thus giving Kauffman an opportunity to review the transcripts of the suppression hearing.
¶ 10 On February 9, Kauffman filed a motion to dismiss for lack of a speedy trial. At the February 17 status conference the District Court decided to move ahead with a trial date, over Kauffman's objection. On February 18, the clerk set a trial date for March 4, 2009. On February 23, Kauffman received the transcripts of the December 18 suppression hearing. On February 24, the District Court ordered any motions to suppress be filed within 24 hours, and also stated that it would rule on both the speedy trial motion and the motion to suppress before the March 4 trial date. The next day, Kauffman filed a second motion to suppress based on alleged inconsistencies between the testimony at the suppression hearing and the audio portion of the video tape. On February 27, 2009, the State filed an amended information, adding an alternative count of criminal possession of dangerous drugs, a felony in violation of § 45-9-102(6), MCA. Charlie did not object to the new charge. On appeal, Charlie suggests that he did not do so out of concerns that his trial would be delayed further.
¶ 11 On the morning of the March 4 trial, the District Court issued 2 written orders, denying both Charlie's motion to dismiss for lack of a speedy trial, as well as the second motion to suppress. After a 2-day jury trial, Charlie was acquitted of the original criminal possession with intent to distribute charge and the misdemeanor possession of drug paraphernalia charge, but convicted of the felony criminal possession charge.
¶ 12 On April 1, 2009, Charlie filed a motion for a new trial, arguing that he was entitled to a new trial based on cumulative error, violations of due process, and fundamental fairness. Charlie's arguments were based...
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