State v. Hoover

• Decision Date: 26 October 2021
• Docket Number: DA 19-0707
• Parties: STATE of Montana, Plaintiff and Appellee, v. Justin Phillip HOOVER, Defendant and Appellant.
• Court: Montana Supreme Court

406 Mont. 132

497 P.3d 598

STATE of Montana, Plaintiff and Appellee,

v.Justin Phillip HOOVER, Defendant and Appellant.

DA 19-0707

Supreme Court of Montana.

Submitted on Briefs: June 23, 2021

Decided: October 26, 2021

For Appellant: Chad Wright, Appellate Defender, Kristen L. Peterson, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Mardell L. Ployhar, Assistant Attorney General, Helena, Montana, Marcia Jean Borris, Lincoln County Attorney, Jeffrey Zwang, Deputy County Attorney, Libby, Montana

Justice Dirk Sandefur delivered the Opinion of the Court.

¶1 Justin Phillip Hoover (Hoover) appeals the September 13, 2019, judgment of the Montana Nineteenth Judicial District Court, Lincoln County, denying his motion for a new trial on the offense of partner or family member assault (PFMA), third or subsequent offense, a felony in violation of § 45-5-206, MCA. We address the following restated issue:

Whether the replay of video evidence of Hoover's incriminating statements to the deliberating jury without notice to the parties constituted reversible error?

Reversed and remanded.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On January 22, 2019, based on incriminating audio-video game camera footage that captured his belligerent verbal and physical interaction with his teenaged son (H.H.), and subsequent incriminating statements made in a post-arrest interrogation interview conducted by a sheriff's deputy, the State charged Hoover with third or subsequent offense PFMA. At trial, the State introduced the game camera footage exhibit through the foundation testimony of a game warden and the subsequent interrogation video through the foundation testimony of a sheriff's deputy who conducted the interview.

¶3 The game camera footage exhibit consisted of 25 short segments, each approximately 13 seconds in length, separated by unrecorded gaps of between eight seconds and eight minutes. The videos showed Hoover and H.H. stacking firewood in the back of a pickup truck on a snowy evening in a forested area where they were cutting wood. In pertinent part, the footage showed H.H. stacking wood in the pickup and Hoover telling him to "get it fucking right" and then shoving him. The footage later showed H.H. pulling a tire from the pickup bed and saying to Hoover, "[n]ow you see what's up, dude?" Hoover responded by walking up to H.H. and twice slapping him on the side of his face. A subsequent segment showed Hoover grabbing H.H. by the front of his sweatshirt and pushing him onto the ground while calling him a "mother fucker." The clip then showed Hoover pull H.H. up from the ground while criticizing him for not "paying any fucking attention." The next clip showed Hoover kneeling down next to H.H. telling him how he had been incorrectly pushing logs "uphill against me, so I can't help you." A later clip showed Hoover approach H.H. and say that "not everything's gotta be a battle" because "I will fucking win." Subsequent clips showed Hoover continuing to berate H.H. with profanity while they were stacking logs and ultimately telling H.H. to clean up his bloody nose.

¶4 The State then presented excerpts, totaling approximately 21 minutes in duration, from the post-arrest interrogation video to the jury. Rather than providing a single video recording with the excluded segments redacted out, the State presented the admissible segments from the uncut video by manually stopping and skipping over the excluded segments during playback. During the interview, the sheriff's deputy did not initially disclose to Hoover that a remote game camera had captured the subject incident on video. With that omission, the deputy asked if Hoover had ever put his "hands on [H.H.] while you were cutting firewood." Hoover said "[p]robably not," but stated that he did not remember anything like that and then asked "who says I put my hands on [him]?" Upon the deputy's disclosure that a game camera caught and recorded the subject incident, Hoover responded that he did not remember the incident, but insisted that H.H. "never had a bruise, never had nothing from me." The interrogation video showed the initially calm Hoover become increasingly agitated as the interview progressed and repeatedly referring to the deputy's allegation of misconduct as "fucking bullshit."

¶5 Surprised that the deputy would consider his treatment of H.H. abusive, Hoover stated that "[y]ou can take it as 2019 fucking abuse" and repeatedly asserted it was "not a big deal." He further retorted, "[s]o I slapped my son upside the head, whoop-dee-do." Hoover asserted that his conduct was not abusive because H.H. was sixteen years old.

He said that his own father had disciplined him "a lot worse than that." When asked whether he caused H.H.’s nose to bleed, Hoover responded "fuck no." When the deputy pointed out that the game camera footage showed him telling H.H. to clean blood off his face, Hoover replied, "whoop-dee-do," and insisted that his conduct was "a long fucking ways from abuse." Hoover later pointed out that blood was not "gushing" from H.H.’s nose and stated that his son frequently gets a bloody nose during competitive wrestling matches. When asked if H.H. deserved what happened, Hoover twice responded "[p]robably not," but then acknowledged that the interaction "maybe [constituted] some discipline, yeah."

¶6 Upon the close of the State's evidence, the District Court denied Hoover's motion for judgment as a matter of law. Hoover then testified on his own behalf. In stark contrast to his statements and demeanor in the interrogation video, he calmly asserted that he was only attempting to teach H.H. how to properly stack firewood so that it would not fall off the truck and cause a safety hazard. He testified that he only slapped H.H. in order to get his attention so that he would properly stack the wood. He acknowledged that his conduct was "maybe a little drastic," but asserted that it was "definitely necessary." On cross-examination, however, he equivocated that it was "maybe not" necessary to hit H.H. and further acknowledged that he had similarly admitted in his post-arrest interview that H.H. "probably [did] not" deserve to be punished that day.

¶7 During the settlement of jury instructions outside the presence of the jury, Hoover requested an instruction on the affirmative defense of justifiable use of force by a parent. Over the State's objection that the evidence did not support that affirmative defense, the District Court granted Hoover's request and accordingly included the requested justifiable use of force instruction in the jury instruction set.

¶8 During closing arguments, defense counsel emphasized the broad discretion that parents have in disciplining their children and stressed that there is no "magical line between parenting and abuse." Counsel essentially asserted that Hoover did not have the requisite mental state for PFMA and was thus "absolutely dumbfounded" when confronted with the allegation that he was abusive to his son. In contrast, the State asserted and emphasized how the game camera footage and interrogation video were more than sufficient to prove Hoover's guilt on the elements of the offense of PFMA. Inter alia , the State pointed out and stressed the incriminating nature of Hoover's conduct and statements in the game camera footage. The State further attacked his asserted justifiable use of force defense by contending that shoving and slapping his son with the accompanying use of profanity was not reasonably necessary under the circumstances to teach proper wood-stacking technique.

¶9 After the court submitted the case to the jurors and they retired to the jury room for deliberations, the bailiff delivered to the jury room the two video discs admitted into evidence during the trial. However, the jury room contained no equipment with which to replay those video exhibits. The record is devoid of any preceding conferral between court and counsel as to whether the video discs should even go into the jury room or, if so, how and under what circumstances the court and counsel contemplated that the jury should or would be able to review them if so inclined.

¶10 At some point in the course of their initial deliberations, the jury notified the bailiff that they wished to review the game camera footage. The bailiff informed the presiding judge of the request and, upon court authorization without notice to the parties, brought the jury back into the courtroom to review the video. With no one else present, the bailiff replayed game camera footage to the jury on a laptop computer in the courtroom and then returned the jury to the jury room with the video disc. The parties received no notice that the courtroom playback occurred. After almost 2½ hours of deliberations, the District Court sent the jury home for the night to return in the morning.

¶11 When the jurors reconvened for further deliberation the next day, the District Court gave them a so-called "dynamite instruction."¹ Sometime later that morning, the jurors notified the bailiff that they wished to again review the game camera footage, as well as Hoover's interrogation video.² As she did the night before, the bailiff advised the presiding judge of the request(s) and, upon court authorization without notice to the parties, returned the jurors to the courtroom with no one else present and replayed the game camera footage and interrogation videos to them on a laptop. As the State had when it first played the interrogation video during the trial, the bailiff manually redacted the excluded segments of the video, as specified by a pretrial court order, by stopping the playback and skipping forward to the admissible segments. After the video playbacks, the bailiff returned the jurors to the jury room with the video discs, again without any means to further view them there. As with the game footage playback the night before, the parties received no advance notice of the morning...