State v. Kebble

• Decision Date: 14 July 2015
• Docket Number: No. DA 14–0158.,DA 14–0158.
• Citation: 2015 MT 195,353 P.3d 1175,380 Mont. 69
• Parties: STATE of Montana, Plaintiff and Appellee, v. John Robert KEBBLE, Defendant and Appellant.
• Court: Montana Supreme Court

380 Mont. 69

353 P.3d 1175

2015 MT 195

STATE of Montana, Plaintiff and Appellee

v.John Robert KEBBLE, Defendant and Appellant.

No. DA 14–0158.

Supreme Court of Montana.

Submitted on Briefs March 4, 2015.

Decided July 14, 2015.

For Appellant: Jack H. Morris, Morris Law Firm, PLLC, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Brenda K. Elias, Assistant Attorney General, Helena, Montana, Ole Olson, Assistant Attorney General, Special Deputy County Attorney for Cascade County, Helena, Montana, John Parker, Cascade County Attorney, Great Falls, Montana.

Opinion

Justice PATRICIA COTTERdelivered the Opinion of the Court.

¶ 1John Robert Kebble appeals various rulings of the Cascade County justice court arising from charges that Kebble violated § 37–47–301, MCA, by acting as an outfitter without a license.These rulings were affirmed by the Eighth Judicial District Court, Cascade County.We reverse on Issue 1 and remand for further proceedings.We provide guidance on Issues 2 and 3 for purposes of remand.

ISSUES

¶ 2 Did the justice court abuse its discretion in denying Kebble's challenge for cause of a prospective juror?

¶ 3 Did the justice court abuse its discretion when it granted the State's motion in limine, prohibiting Kebble from presenting evidence to the jury regarding the circumstances surrounding suspension of his outfitters license?

¶ 4 Did the justice court err when it sentenced Kebble pursuant to the statute in effect at the time he committed the crime, rather than pursuant to the statute that was in effect at the time he was charged and convicted?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 In 2004, John Robert Kebble was an outfitter licensed by the State of Montana and conducting business as Great Waters Outfitting in Red Lodge, Carbon County, Montana.On March 8, 2004, Kebble entered a plea of guilty to criminal possession of dangerous drugs.In April 2004, the Montana Twenty–Second Judicial District Court in Carbon County(hereinafter Carbon Countydistrict court) imposed a one-year deferred sentence subject to specific terms and conditions.On May 25, 2004, Kebble, who was under supervised probation with the Department of Corrections, failed a random drug test.As a result of the failed test, Kebble's probation officer sought an administrative intervention hearing pursuant to § 46–23–1015, MCA.On June 22, 2004, following the intervention hearing, Kebble, his probation officer, and the administrative hearings officer entered into a written agreement entitled Intervention Hearing Agreement (IHA).Under this IHA, Kebble was sentenced to three days in jail to be served in July 2004, “in lieu of a formal violation being filed at [that] time.”

¶ 6 On June 29, 2004, the Montana Board of Outfitters took disciplinary action against Kebble and suspended his license under the same terms and conditions as contained in the Carbon Countydistrict court sentence and “until such time that [his] civil rights have been restored pursuant to law.”

¶ 7 Also on June 29, 2004, Kebble's probation officer notified the Montana Attorney General's office of Kebble's probation violation and the agreed upon administrative sanction.Despite the IHA, in July 2004 the Montana Attorney General petitioned for revocation of Kebble's deferred sentence.The Carbon Countydistrict court granted the petition and sentenced Kebble to a term of five years, all suspended.Kebble filed a petition for postconviction relief requesting that the Carbon Countydistrict court reinstate his original deferred sentence.

¶ 8 In late May and early June 2006, while Kebble's postconviction petition remained pending in Carbon County district court, Montana Fish, Wildlife and Parks (FWP) wardens observed Kebble on the Missouri River in Cascade County with a group of people who were fishing.They approached Kebble and asked if he was acting as an outfitter.Kebble denied that he was and acknowledged that his license was suspended at that time.Unconvinced that Kebble was not outfitting, the wardens commenced an investigation that led to documented evidence that between May 2005 and June 2006, Kebble conducted multiple outfitting trips.On June 14, 2006, Kebble was arrested for probation violations.

¶ 9 In September 2007, the Assistant Attorney General filed a complaint in Cascade County justice court against Kebble alleging that he had committed 38 misdemeanor violations of outfitting without a license.

¶ 10 Subsequently, on January 16, 2009, in response to Kebble's postconviction petition, the Carbon Countydistrict court set aside the July 2004 revocation of Kebble's one-year deferred sentence, concluding that once a probation officer elects and conducts an informal intervention, the State may not pursue a formal revocation for the same reported violation.The court thereby reinstated, by nunc pro tunc order, the April 16, 2004 Judgment and Order Deferring Imposition of Sentence Subject to Conditions.Kebble promptly filed a motion to withdraw his guilty plea and dismiss the drug charges with prejudice.On February 4, 2009, the Carbon Countydistrict court granted Kebble's motion, allowing him to withdraw his guilty plea to the charge of felony possession of dangerous drugs as of April 16, 2005.The court dismissed the charge with prejudice.

¶ 11 Following the entry of the 2009Carbon Countydistrict court order, Kebble filed multiple pretrial motions in the Cascade County justice court, among other things seeking to introduce evidence of the ultimate outcome of his Carbon County proceeding.In response, the State filed a motion in limine seeking to prohibit Kebble from introducing evidence pertaining to the Carbon County proceeding.The State's motion was granted and Kebble's motions were denied.The Cascade County justice court conducted a jury trial from July 12–15, 2010, and the jury found Kebble guilty of all 38 counts.Kebble was sentenced on January 25, 2011, and ordered to pay fines in the amount of $12,730.He also was sentenced to serve 36 days in the Cascade County Detention Center with his remaining jail time suspended.

¶ 12 Kebble appealed the justice court ruling on five grounds to the Cascade County District Court.In January 2014, the Cascade County District Court affirmed both the justice court's ruling and sentence.

¶ 13 Kebble filed a timely appeal.

STANDARD OF REVIEW

¶ 14We review cases that originate in justice court and are appealed to district court as if the appeal originally had been filed in this Court.Accordingly, we undertake an independent examination of the record apart from the district court's decision.State v. Lamarr,2014 MT 222, ¶ 9, 376 Mont. 232, 332 P.3d 258(citations and quotations omitted).

¶ 15We review a court's decision to deny a challenge for cause of a juror for an abuse of discretion.We will reverse the judgment and order a new trial if a court abuses its discretion by denying a defendant's challenge for cause, the defendant removes the challenged prospective juror with a peremptory challenge, and the defendant exhausts his peremptory challenges.State v. Braunreiter,2008 MT 197, ¶ 7, 344 Mont. 59, 185 P.3d 1024(citations omitted).

¶ 16 A trial court has broad discretion in determining the relevance and admissibility of evidence.Thus, as a general rule, we review a trial court's evidentiary rulings, such as rulings on motions in limine, for abuse of discretion.State v. Derbyshire,2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811(citations omitted).

¶ 17We review a criminal sentence for legality to determine whether the sentence is within statutory parameters.Such a determination of legality is a question of law, which we review de novo.State v. Adams,2013 MT 189, ¶ 11, 371 Mont. 28, 305 P.3d 808(citation omitted).If, however, the defendant is sentenced to serve less than one year of actual incarceration, we review the sentence both for legality and for an abuse of discretion.City of Bozeman v. Cantu,2013 MT 40, ¶ 11, 369 Mont. 81, 296 P.3d 461.

DISCUSSION

¶ 18Did the justice court abuse its discretion in denying Kebble's challenge for cause of a prospective juror?

¶ 19 After discovering Kebble engaged in what appeared to be an outfitting excursion in May or June 2006, FWP initiated an investigation.As part of the investigation, the agency obtained the personal computers of Kebble and his wife.Upon taking possession of the computers, FWP agents contacted the Department of Justice(DOJ)Division of Criminal Investigation(DCI) and requested that DCI examine the computers.Jimmy Weg was the agent in charge of the computer crime unit for DOJ DCI at the time and undertook the requested examination.He provided copies of multiple emails and other documents from Kebble's computer that supported FWP's allegation that Kebble was conducting outfitting trips.These documents were later introduced to the jury through Weg as a witness for the State.

¶ 20 Prior to the justice court trial, a jury panel consisting of 24 persons was summoned, with six jurors and one alternate ultimately selected.Prior to designating the panel, the clerk of justice court sent a “Questionnaire as to Qualification for Jury Service” to prospective jurors.Philip Matteson completed and returned the questionnaire in which he indicated that he was employed as a criminal investigator for DOJ DCI.

¶ 21 During voir dire, the prosecutor questioned Matteson about his ability to be impartial, and while the transcript of the proceedings was of limited assistance,¹ nothing in Matteson's responses suggested that Matteson was prejudiced or biased in favor of the prosecution.Kebble's counsel also questioned Matteson.After confirming that Matteson worked for DOJ DCI and knew the prosecuting attorney, Weg, and several of the FWP wardens scheduled to testify for the State, defense counsel requested that Matteson be removed for cause.The court suggested that counsel make inquiries about Matteson's ability to be a fair and impartial juror.After...