State v. Akers
| Citation | 408 P.3d 142,2017 MT 311,389 Mont. 531 |
| Decision Date | 19 December 2017 |
| Docket Number | DA 16-0382 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Lee Cochran AKERS, Defendant and Appellant. |
| Court | United States State Supreme Court of Montana |
For Appellant: Chad Wright, Chief Appellate Defender, James Reavis, Assistant Appellate Defender, Helena, Montana
For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana, Bruce E. Becker, Park County Attorney, Kathleen Carrick, Deputy County Attorney, Livingston, Montana
¶ 1 Lee Cochran Akers (Akers) appeals from an order of the Sixth Judicial District Court, Park County, on appeal from the Park County Justice Court (Justice Court). The District Court's order denied Akers's motion to dismiss, affirmed the Justice Court's judgment, and remanded the case to the Justice Court to enforce its judgment. We reverse and remand for further proceedings consistent with this Opinion.
¶ 2 Akers presents three issues on appeal. First, Akers argues the Justice Court erred by not instructing the jury that the State carried the burden of proving Akers's actions were not a justifiable use of force. Second, Akers argues his trial counsel was ineffective for failing to request such an instruction. Third, Akers argues he was denied the right of confrontation when the State presented its witnesses through Skype testimony. We conclude that the Justice Court erred by not instructing the jury that the State carried the burden of proving Akers's actions were not a justifiable use of force and reverse. Accordingly, it is unnecessary to address Akers's ineffective assistance of counsel claim. Further, because these proceedings are being remanded, we decline to issue an advisory opinion addressing the propriety of the State's use of Skype testimony. We restate the dispositive issue as follows:
Whether this Court should exercise plain error review to reverse Akers's conviction because the jury was not instructed on the burden of proof for justifiable use of force.
¶ 3 Akers travelled from Tennessee to Montana with four friends, Terri Gilley (Gilley), Myron Tipton (Tipton), Terri McFarland, and Scott Marcha, to attend a music concert. While in Montana, the group also visited Yellowstone National Park and stayed in a cabin in Park County. Gilley and Akers had several arguments during the trip and on September 1, 2015, a physical altercation ensued. As a result, Gilley left the cabin and contacted local police. Park County Sheriff's Deputy Pete Adams (Adams) met with Gilley and observed a scratch on her cheek and several bruises on both of her arms. Adams subsequently arrested Akers and cited him with misdemeanor assault.
¶ 4 The facts surrounding the physical altercation are disputed. According to Gilley, in response to something Akers said, Gilley threw a cup containing ice and soda at Akers's head. After throwing the cup at Akers, Gilley attempted to run away, but Akers grabbed Gilley, shoved her, and hit her several times. Akers presents a different version of the incident. Akers maintains that, without provocation, Gilley threw the cup and contents at his head and then approached him. Akers then grabbed Gilley's wrists to prevent her from scratching or hitting him. Holding onto her wrists, Akers attempted to back Gilley out of the cabin's front door, but Gilley fell to the floor and she, again, tried to scratch him from her position on the floor. Akers believes it was at this point that Gilley scratched herself in the face.
¶ 5 Prior to trial, the State filed a motion to allow testimony of witnesses at trial through Skype, a software application and video conferencing platform, which allows for real-time audio and video telecommunication. The State cited the burden of travel as its cause for filing the motion. On December 22, 2015, the Justice Court granted the State's motion in a single-sentence order.
¶ 6 The Justice Court held a jury trial on January 29, 2016. At trial, Akers relied on the defense of justifiable use of force. Akers presented witnesses who testified to a version of the incident largely consistent with his own. The State presented witnesses who testified to a version of the incident largely consistent with Gilley's. Gilley testified through Skype from Tennessee. The State presented an additional rebuttal witness, Sheldon Ziro, who also testified through Skype from Tennessee. Akers's witnesses all testified personally in court. The jury convicted Akers of assault and the Justice Court sentenced him to pay a fine of $300, court costs of $85, and jury costs of $806.52. The Justice Court stayed enforcement of its judgment pending Akers's appeal to the District Court.
¶ 7 On appeal, Akers filed a motion to dismiss and raised two arguments. First, Akers argued Article VII, Section 4, of the Montana Constitution, entitled him to a trial de novo in the District Court because the Justice Court judge was not an attorney. Second, Akers argued the confrontation clause of the Sixth Amendment to the United States Constitution; Article II, Section 24, of the Montana Constitution ; M. R. Evid. 611(e) ; and § 46-16-201, MCA, entitled him to confront the witnesses against him in person, not through Skype. The District Court denied Akers's motion to dismiss, affirmed the Justice Court's judgment, and remanded the case to the Justice Court to enforce its judgment.
¶ 8 Akers appeals.
¶ 9 When district courts function as intermediate appellate courts for appeals from lower courts of record, this Court reviews the appeal de novo as though it were originally filed in this Court. Section 3-5-303, MCA ; Bozeman v. Cantu , 2013 MT 40, ¶ 10, 369 Mont. 81, 296 P.3d 461 (citation omitted).
¶ 10 Generally, an appellate court does not address issues raised for the first time on appeal. State v. Favel , 2015 MT 336, ¶ 13, 381 Mont. 472, 362 P.3d 1126. Plain error review is an exception to this general rule where we may consider issues raised for the first time on appeal. Favel , ¶ 13 ; State v. Finley , 276 Mont. 126, 137, 915 P.2d 208, 215 (1996), overruled on other grounds by , State v. Gallagher , 2001 MT 39, ¶ 21, 304 Mont. 215, 19 P.3d 817. "[C]ourts invoke plain error review to correct error not objected to at trial but that affects the fairness, integrity, and public reputation of judicial proceedings." Finley , 276 Mont. at 134, 915 P.2d at 213. To reverse a decision for plain error, the appellant must: (1) demonstrate that the claimed error implicates a fundamental right; and (2) firmly convince this Court that a failure to review the claimed error would result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial or proceedings, or compromise the integrity of the judicial process. Favel , ¶ 23 (quotations omitted) (citing State v. Daniels , 2011 MT 278, ¶ 32, 362 Mont. 426, 265 P.3d 623 ).
¶ 11 As a preliminary matter, Akers satisfied his burden of producing evidence sufficient to place his affirmative defense of justifiable use of force at issue. See Daniels , ¶ 15. Akers gave notice to the State of his intention to raise justifiable use of force in advance of trial. Akers and Tipton testified that Gilley struck Akers in the head with a cup and that Gilley moved forward to scratch at Akers with her nails. Akers then sought to defend himself by restraining Gilley to prevent Gilley from scratching him. Akers, accordingly, offered evidence of his affirmative defense of justifiable use of force and properly placed the defense at issue.
¶ 12 Section 46-16-131, MCA, provides that "when the defendant has offered evidence of justifiable use of force, the state has the burden of proving beyond a reasonable doubt that the defendant's actions were not justified." "Courts may not disregard the plain language of a statute." State v. Cooksey , 2012 MT 226, ¶ 32, 366 Mont. 346, 286 P.3d 1174 (citation omitted). However, neither Akers nor the State requested or submitted a proposed jury instruction, which properly instructed the jury on the burden of proof pursuant to § 46-16-131, MCA ; nor did the Justice Court sua sponte instruct the jury on the State's burden. The only issues Akers presented to the District Court on appeal were that a non-lawyer judge presided over the Justice Court trial and that his constitutional right of confrontation was violated by the State's presentation of Skype testimony. Generally, "a reviewing court can consider only those issues that are properly preserved for its review." In re Transfer Territory from Poplar Elementary Sch. Dist. No. 9 to Froid Elementary Sch. Dist. No. 65 , 2015 MT 278, ¶ 13, 381 Mont. 145, 364 P.3d 1222 . The parties agree that the failure to properly instruct the jury on the burden of proof for justifiable use of force was not raised in the Justice Court or District Court and, therefore, was not preserved.
¶ 13 Despite Akers's failure to preserve this issue at the Justice Court and failure to raise the issue at the District Court, this Court may, as Akers recommends, exercise plain error review. "[T]he plain error doctrine is to be employed sparingly, on a case-by-case basis" considering the "totality of circumstances of each case." State v. Lindberg , 2008 MT 389, ¶ 34, 347 Mont. 76, 196 P.3d 1252 (quotations and citation omitted). When a "c...
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