State v. Pope

Decision Date20 August 2019
Docket NumberDA 18-0047
Citation397 Mont. 95,2019 MT 200,447 P.3d 469
Parties STATE of Montana, Plaintiff and Appellee, v. Jody Jake POPE, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Chad Wright, Appellate Defender, Gregory Hood, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Damon Martin, Assistant Attorney General, Helena, Montana, William E. Fulbright, Ravalli County Attorney, Thorin Geist, Deputy County Attorney, Hamilton, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 In 2017, we decided State v. Pope , 2017 MT 12, 386 Mont. 194, 387 P.3d 870 ( Pope I ), which, in relevant part, remanded the matter to the Twenty-First Judicial District Court, Ravalli County, to determine the appropriate sanction for discovery abuse by the State. Jody Jake Pope (Pope) appeals following the District Court’s July 6, 2017, Sanction Order on Remand, which issued financial sanctions against the State and denied his request for a new trial. We affirm.

¶2 We restate the issue on appeal as follows:

Did the District Court abuse its discretion by issuing only a financial sanction against the State for discovery abuse?

¶3 The factual background regarding the underlying offense in this matter was set forth in our decision in Pope I and need not be completely repeated here. In 2013, Pope was charged with attempted deliberate homicide, assault with a weapon, and driving while license suspended or revoked after an incident in which the State alleged that Pope intentionally hit his then-girlfriend, Susan Myers (Myers), with his van on Highway 93 in Ravalli County. In January 2014, Myers wrote to the District Court and stated that Pope did not hit her with his van. Myers similarly told defense counsel that the incident was overblown and that nothing happened during interviews prior to trial.

¶4 During jury selection on the first day of trial in June 2014, the State’s investigator, James Hulme (Hulme), conducted a recorded interview with Myers. During this interview, Myers told Hulme that Pope had indeed driven at her and struck her with his van. Myers stated that she had injured her ribs in the collision and that she believed she was knocked unconscious by the impact. After court proceedings ended that day, Deputy County Attorney Thorin Geist (Geist) viewed the video of Hulme’s interview with Myers. Geist determined that the State would not disclose the video to Pope, and informed Pope’s counsel, Jennifer Streano (Streano), that Hulme had met with Myers, but did not inform her that the interview was recorded. Streano was not able to re-interview Myers herself.

¶5 Trial resumed the next day, and Geist informed Streano shortly before Myers was set to testify that Hulme’s interview with Myers the previous day was in fact recorded. Streano informed the District Court, requested the State produce the video, and asked for time to review the video before Myers testified. The State refused to produce the video. The District Court ruled that the State did not have to produce the video, and Myers ultimately testified consistently with her statements to Hulme the previous day and contradicted her other pre-trial statements regarding the incident. Myers testified that Pope "drove the van" at her and "tried to hit" her with the van. Myers further testified that her previous inconsistent statements were made to "try to help," and to her belief that Pope’s counsel had "tricked" her.

¶6 After the State rested its case, Streano again argued that the State should have provided the video of Myers’s interview and that she was unable to properly impeach Myers’s credibility because Myers’s testimony was so different than that given in her other pre-trial interviews. After the settling of jury instructions, Streano asked to view the video overnight to determine issues she should raise with the District Court to preserve for appeal. The State again refused to produce the video and the District Court sealed the video and placed it in the record.

¶7 Before trial resumed the next day, Pope moved for a mistrial as a sanction for the State’s failure to provide the video of Myers’s interview with Hulme. Pope asserted that he would have presented his case differently had he known that Myers was going to change her testimony from her earlier statements about the incident. The District Court denied Pope’s motion for a mistrial and found that the State had no obligation to disclose the video. The jury found Pope not guilty of attempted deliberate homicide, but guilty of assault with a weapon and driving while license suspended or revoked. The District Court sentenced Pope on the assault with a weapon charge to the Department of Corrections (DOC) for 20 years, with ten years suspended, and on the driving while license suspended or revoked charge to the Ravalli County Detention Center for six months, to run consecutively to the DOC sentence.

¶8 Pope appealed to this Court, arguing that the State wrongfully withheld the video of Myers’s interview with Hulme. Pope asked this Court to remand to the District Court so that the District Court could determine the appropriate sanction for the State’s discovery abuse. On appeal, the State conceded that it wrongfully withheld the video, but argued that Pope suffered no prejudice and therefore the matter need not be remanded to the District Court for the imposition of a possible sanction. This Court, in Pope I , remanded to the District Court to determine the appropriate sanction.

¶9 On remand, Pope asked for either a new trial or "any other sanction the [District] Court feels is appropriate for the States’ [sic] discovery abuse." The State, after conceding on appeal that it wrongfully withheld the video from Pope—and this Court’s decision in Pope I clearly noting the State’s duty to disclose the video—bizarrely insisted that it "was under no obligation to provide the video-recording – or even to inform the Defendant that it existed – until it was requested on the second day of trial." Pope, in his reply brief, again asked for a sanction granting a new trial, "or other sanctions[.]" The District Court held a hearing on Pope’s motion for sanctions. After the hearing, the District Court issued a written order finding that Pope was not prejudiced by the State’s discovery abuse in this case and therefore a new trial was not warranted, as well as issuing a financial sanction against the State. Pope appeals.


¶10 We review a district court’s decision regarding matters of discovery for an abuse of discretion. Pope I , ¶ 16 (citing State v. Golder , 2000 MT 239, ¶¶ 7, 11, 301 Mont. 368, 9 P.3d 635 ). A district court abuses its discretion if it acts arbitrarily, unreasonably, or without employing conscientious judgment, resulting in substantial injustice.

State v. Hart , 2009 MT 268, ¶ 9, 352 Mont. 92, 214 P.3d 1273.


¶11 Did the District Court abuse its discretion by issuing only a financial sanction for the State’s discovery abuse?

¶12 In our decision in Pope I , at Pope’s request, we remanded to the District Court to determine the appropriate sanction for the State’s discovery abuse. Montana’s criminal discovery statutes empower district courts to issue sanctions commensurate with a party’s discovery abuses:

If at any time during the course of the proceeding it is brought to the attention of the court that a party has failed to comply with any of the provisions of this part or any order issued pursuant to this part, the court may impose any sanction that it finds just under the circumstances, including but not limited to:
(1) ordering disclosure of the information not previously disclosed;
(2) granting a continuance;
(3) holding a witness, party, or counsel in contempt for an intentional violation;
(4) precluding a party from calling a witness, offering evidence, or raising a defense not disclosed; or
(5) declaring a mistrial when necessary to prevent a miscarriage of justice.

Section 46-15-329, MCA. A district court is not limited to only the enumerated sanctions listed above, as the statute expressly provides that the court may impose any sanction it finds just under the circumstances. Pope I , ¶ 26 (citing § 46-15-329, MCA ).

¶13 The circumstances of the present appeal are quite unique. At Pope’s trial, he asked for a mistrial based on the State’s refusal to provide the recorded interview of Myers. The State argued that it had no duty to disclose the interview because it did not contain exculpatory material. The District Court agreed with the State and denied Pope’s motion for a mistrial. Pope then appealed to this Court—and asked for us to remand the matter to the District Court to determine the appropriate sanction for the State’s discovery abuse. On appeal, the State conceded that it wrongfully withheld the recorded interview but argued that Pope was not prejudiced. We remanded to the District Court to determine the appropriate sanction because "[i]mposition of sanctions is a matter best left to the sound discretion of the district court. Such discretion allows the court to consider the reason why disclosure was not made, whether noncompliance was willful, the amount of prejudice to the opposing party, and any other relevant circumstances." Pope I , ¶ 25 (quoting State v. Waters , 228 Mont. 490, 495, 743 P.2d 617, 621 (1987) ).

¶14 The District Court, in its written order, determined that a sanction was warranted "in light of the State’s willful, irrational, unreasonable, and still unacknowledged discovery abuse." It did not grant Pope a new trial, however, because of a "lack of...

To continue reading

Request your trial
2 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT