State v. Dewitz

Decision Date09 June 2009
Docket NumberNo. DA 06-0092.,DA 06-0092.
Citation212 P.3d 1040,2009 MT 202,351 Mont. 182
PartiesSTATE of Montana, Plaintiff and Appellee, v. Joshua Jace DEWITZ, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Russell LaFontaine, Office of the Public Defender, Missoula, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana, Fred Van Valkenburg, Missoula County Attorney, Jennifer Clark, Deputy County Attorney, Missoula, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Joshua Dewitz appeals a jury verdict in the District Court for the Fourth Judicial District, Missoula County, finding him guilty of felony Operation of a Clandestine Lab and felony Criminal Endangerment. We affirm.

¶ 2 Dewitz raised several issues and sub-issues on appeal which we have restated for clarity as follows:

¶ 3 1. Did the District Court abuse its discretion when it denied Dewitz's motion to excuse a prospective juror for cause?

¶ 4 2. Did the District Court abuse its discretion in allowing an officer to testify regarding handwriting samples?

¶ 5 3. Did the District Court err in allowing an officer to testify regarding statements made by witnesses at the scene?

¶ 6 4. Did Dewitz waive appellate review of his M.R. Evid. 404(b) claim by his failure to make a timely objection?

¶ 7 5. Did the District Court abuse its discretion when it refused to instruct the jury that Ashley was an accomplice as a matter of law?

¶ 8 6. Did the District Court err in denying Dewitz's motion to dismiss for insufficient evidence?1

¶ 9 7. Did the prosecutor commit misconduct in her closing argument to the jury?

Factual and Procedural Background

¶ 10 Dewitz and Tanisha Ashley had an 8-year-long relationship that began when Ashley was 16 years old. They had a daughter, Jasmyne, when Ashley was 17. Although their relationship ended, Dewitz and Ashley maintained contact so that Dewitz could continue to see Jasmyne.

¶ 11 In June 2004, Ashley decided to move from Virginia to Oregon where she grew up and where she still had family. Dewitz agreed to help her move. In August 2004, Dewitz, Ashley and Mia, Ashley's infant daughter from a different relationship, left for Oregon by car. They drove a white, four-door, older car, possibly a Subaru. Jasmyne remained in Iowa with Dewitz's family until Ashley was settled in Oregon.

¶ 12 Dewitz and Ashley arrived in Missoula on the evening of August 17, 2004. They decided to stay overnight in Missoula, hence Ashley rented two rooms at the Microtel Motel. Ashley later testified that she rented the rooms because Dewitz did not have any identification. The rooms were side by side. Ashley and her baby stayed in room 332 and Dewitz stayed in room 330. Ashley testified that the only time she was in room 330 was when they arrived and she carried Dewitz's cat to that room before going to her own room with Mia.

¶ 13 Ashley further testified that sometime after she went to sleep, she was awakened by Dewitz screaming her name and banging on her door. When Ashley opened the door, Dewitz rushed past her, grabbed his briefcase and told her to get the baby because they had to go. Ashley noticed that Dewitz had burn blisters on his arms and chest. Ashley grabbed Mia and whatever else she could and ran out to the car where Dewitz was waiting. She noticed a lot of smoke coming out of the motel windows. Ashley asked Dewitz about his cat and Dewitz told her it was dead.

¶ 14 Dewitz drove toward the interstate. On their way out of town, Ashley asked Dewitz what happened and he told her "a fire." Ashley told Dewitz that he had to take her back because the rooms were in her name. Dewitz turned the vehicle around and dropped Ashley and Mia off at a gas station. Dewitz told Ashley he could not stay because there was a warrant out for his arrest. Ashley returned to the motel with Mia and told the desk clerk what had happened.

¶ 15 The Missoula Fire Department responded to the fire and evacuated the motel. When the firefighters initially entered the burning room, the sprinkler system was spraying water, but a pot on the floor was still burning. The firefighters used a chemical fire extinguisher to put out the fire in the pot and also rescued Dewitz's cat from the room.

¶ 16 Fire Inspector Jason Diehl conducted the investigation of the fire in room 330. He determined that the fire started when wind from the open window blew the curtains into a hot plate that was sitting on a counter below the window causing the curtains to ignite. The fire from the curtains then ignited the flammable vapors emitting from a pot in the room. Diehl believed that the flaming pot of chemicals ended up on the floor when the occupant of the room moved it away from the curtains in an attempt to extinguish the blaze. Diehl testified that from the objects he observed in the room and from the way the fire started, it appeared to him that someone had set up a meth lab in the room endangering not only the motel occupants, but also the firefighters who responded to the fire. The fire caused over $270,000 in damages to the motel.

¶ 17 As part of his investigation, Diehl interviewed Ashley. In that interview, Ashley told Diehl that she and her daughter were staying in room 332 and Dewitz was staying in room 330. Ashley later testified that at some point during the evening, Dewitz told her he was heading to WalMart. Ashley said that she remained in her room all night scratching lottery tickets until she fell asleep. She did not wake up until she heard Dewitz banging on the door and screaming her name.

¶ 18 Ashley gave law enforcement officers permission to search both rooms. In room 332, the officers found baby bottles, formula, diapers, feminine items, and a bottle of medication. Detective Scott Brodie with the Missoula Police Department testified that all of these items indicated that Ashley was staying in room 332. In the bathroom of room 332, the officers also found a snort tube and a piece of burnt tin foil. Residue from these items later tested positive for meth.

¶ 19 When officers searched room 330, they found a number of items associated with the making of meth including Epsom salts, Isopropyl alcohol, STP gas treatment, tubing, a funnel, rubber gloves, lithium batteries, a digital scale, duct tape, a gas mask, various bottles of liquid, and a pot of a tri-layered amber liquid. Tests by the crime lab revealed that the upper layer of this liquid was meth. Officers also found in the room a wallet containing $5,000 wrapped in black electrical tape; two spiral notebooks containing laundry lists of things to buy and do; a man's toiletry bag containing a toothbrush and shaving gear; and a bag of catnip. Detective Brodie testified that these items indicated that Dewitz was staying in that room.

¶ 20 Ashley was arrested and charged with Criminal Endangerment for exposing two-month old Mia to meth, Criminal Possession of Dangerous Drugs, Criminal Possession of Drug Paraphernalia, and Operation of an Unlawful Clandestine Lab. Mia was placed in the care of Child & Family Services. An examination showed that Mia had methamphetamine and amphetamine in her system.

¶ 21 On June 6, 2005, the State and Ashley entered into a plea agreement wherein the State agreed that the charges of Criminal Endangerment and Operation of an Unlawful Clandestine Lab would be dismissed at sentencing. Ashley agreed to plead guilty to Criminal Possession of Dangerous Drugs and Criminal Possession of Drug Paraphernalia, and to testify truthfully in any proceeding stemming from the incident at the motel. The State also agreed to recommend a five-year commitment to the Department of Corrections with all but one year suspended and a $4,000 fine for the Offense of Criminal Possession of Dangerous Drugs, along with a six-month sentence to the Missoula County Detention Center for the offense of Criminal Possession of Drug Paraphernalia.

¶ 22 Dewitz was arrested in Oregon on September 21, 2004, and returned to Montana for trial. The State charged Dewitz with Operation of an Unlawful Clandestine Lab, a felony, in violation of § 45-9-132, MCA, and Criminal Endangerment, a felony, in violation of § 45-5-207, MCA. A jury found Dewitz guilty of both offenses on June 29, 2005. For the offense of Operation of an Unlawful Clandestine Lab, Dewitz was sentenced to prison for forty years with twenty years suspended. He was sentenced to an additional ten years for the offense of Criminal Endangerment, to run concurrently to the first sentence.

¶ 23 Dewitz appeals.

Issue 1.

¶ 24 Did the District Court abuse its discretion when it denied Dewitz's motion to excuse a prospective juror for cause?

¶ 25 The District Court denied defense counsel's request to strike prospective juror Chari Lipski for cause. Lipski is employed as a 911 dispatcher and her significant other is a city police officer. During voir dire, Lipski stated that she may have been working at the time of the incident and that she remembered the fire "being discussed" among her coworkers. Defense counsel requested that she be removed for cause because she was a potential witness and because she may have outside knowledge of the incident that could come into play during deliberations. The State objected to Lipski's dismissal and the District Court denied defense counsel's request to strike this juror for cause. Consequently, counsel used one of his preemptory challenges to remove her from the jury.

¶ 26 Dewitz argues on appeal that the District Court's failure to dismiss Lipski denied him his right to a fair trial. He contends that because Lipski is employed "by the entity on whose behalf the prosecution was initiated," Lipski should have been dismissed for cause. Dewitz also contends that because Lipski is a 911 dispatcher and is in a relationship with a law enforcement officer, she is "prone to favor" the...

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