State v. Pope

Decision Date18 January 2017
Docket NumberDA 14-0744
Parties STATE of Montana, Plaintiff and Appellee, v. Jody Jake POPE, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Chad Wright, Chief Appellate Defender, Jennifer Hurley, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana William E. Fulbright, Ravalli County Attorney, Thorin Geist, Deputy County Attorney, Hamilton, MontanaJustice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Defendant Jody Jake Pope appeals the June 27, 2014 order denying his motion for mistrial and the September 18, 2014 judgment imposing certain fees, surcharges and costs by the Twenty-First Judicial District Court, Ravalli County. We address the following issues:

Issue One: Whether the District Court erred in determining the State had not violated its disclosure obligations when the State refused to produce a videotaped witness interview based on the claim that it was work product and not exculpatory.
Issue Two: Whether the District Court failed to determine Pope's ability to pay costs and fees before imposing them.
Issue Three: Whether the District Court erred in imposing the information technology user surcharge per count and not per user.

¶2 We reverse and remand for further proceedings consistent with this Opinion.


¶3 On September 30, 2013, the State of Montana charged Pope with attempted deliberate homicide, assault with a weapon, and driving while license suspended or revoked. The State alleged that on September 12, 2013, Pope intentionally struck his then girlfriend, Susan Myers, with his van on Highway 93 in Ravalli County. Pope denied the allegations, claiming that Myers exited the van and, as he drove away, Myers jumped into the road toward the van throwing her drink at the windshield.

¶4 On January 29, 2014, Myers wrote to the District Court stating that Pope "did not hit [her] with his van" and she did not fear him. Myers gave similar exculpatory statements during recorded interviews prior to trial, including a statement to defense counsel that "nothing happened."

¶5 During the three weeks preceding the set trial date of June 23, 2014, the State made numerous disclosures that included nearly one hundred pages of documents and three discs. Pope raised the issue of the State's delayed disclosures during the final pretrial conference. Regarding the State's late production of the first responding officer's interview, the District Court granted Pope's request to call Deputy Liechty as a rebuttal witness if necessary. However, regarding the State's late production of a September 26, 2013 jail telephone call between Pope and Myers, the District Court denied Pope's request for its exclusion, noting that the usual remedy would be a continuance, which Pope did not request.

¶6 On June 23, 2014, during jury selection, the State's in-house investigator, James Hulme, interviewed Myers for approximately forty-five minutes. The interview was video-recorded. Hulme explained to Myers that Deputy County Attorney Thorin Geist is the prosecutor and then began asking "Thorin's questions." Hulme began with general background questions regarding Myers' relationship with Pope. Hulme asked Myers whether she recalled going to the hospital on September 12, 2013, what her injuries were, how she hurt her ribs, when she previously hurt her ribs, and whether her ribs had healed before the incident. Hulme then asked Myers open-ended questions about the events on September 12, 2013, and her communications with Pope following the incident: whether Pope or his counsel told her what to say; whether Pope's letters to her discussed the incident; and whether Hulme could view the letters from Pope. Myers replied she had the letters from Pope, but did not remember their contents and expressed concern about giving the letters to Hulme.

¶7 Hulme informed Myers that Pope refused a plea agreement and read her portions of a recorded jail telephone call transcript between Pope and a mutual friend, in which Pope stated that he gave up everything for Myers, that he pawned all his stuff for Myers, that Myers has what little he has left, and that his mother is upset Myers has his TV. Myers disputed Pope's statements. Myers claimed during her interview with Hulme she had a "bad broken rib" from the incident; that Pope drove the van at her quickly; that she was on the side of the street, not in it, when the van approached; that she tried to move out of the way of the van; and that she thinks she was knocked unconscious. Towards the end of the interview, Myers asked Hulme, "Am I supposed to call [Pope's counsel] up and tell her I'm not gonna meet with her? I'm not supposed to be meeting with her?" to which Hulme replied, "It's not that you're not supposed to be meeting with her, but it would be a lot better if [Geist] were there."

¶8 After the court proceedings that day, Geist viewed the video recording of Hulme's interview with Myers and concluded the State would not disclose the video on grounds that it was not "exculpatory" and it would not be used at trial. That evening Geist informed Pope's counsel, Jennifer Streano, that Hulme had met with Myers, at which time Streano requested to interview Hulme to discover what Myers said. Geist refused, and did not inform Streano at that time that the interview was recorded. Streano attempted to re-interview Myers, without success. The trial resumed the next morning. Later that day, Geist informed Streano shortly before Myers was to testify that the State recorded the interview with Myers. Streano brought the issue to the District Court's attention, requested the State produce the video, and asked the District Court for time to review it before Myers testified.

¶9 The State objected to producing the video, and argued to the District Court that the rules, citing § 46–15–322, MCA, required it to produce only the names and contact information for testifying witnesses and only exculpatory material. Since Myers' statements were not exculpatory, the State contended it did not have to produce the video. Pope argued that the discovery statutes require the State to produce all witness statements, regardless of whether the statements are exculpatory or inculpatory. Pope's counsel asserted she needed to see the video "so I can adequately cross-examine Ms. Myers." The District Court denied Pope's request to view the video on the grounds that it did not contain exculpatory evidence, and because the recorded interview may be "work product."

¶10 Following the District Court's ruling, the State called Myers to the stand. Myers testified consistently with her previous day's interview with Hulme and inconsistently with her previous statements to Pope, his defense counsel, and the District Court. Myers testified that she and Pope had been fighting on the day of the incident and that she got out of the van and crossed the street. She testified that Pope "drove the van at me on the other side [of the street]" and "tried to hit me with the van." Myers stated she was unsure if Pope actually hit her with the van, but that she was knocked unconscious and injured her ribs.

¶11 During cross-examination, Myers denied her previous rib injuries occurred during a fall while camping. She also denied that she was on benzodiazepines or intoxicated the day of the incident. When questioned about her previous statements that she was bipolar and especially emotional the day of the incident, Myers testified she "just said that to try to help." Myers also testified she felt defense counsel had "tricked" her.

¶12 After the State rested its case, Pope reasserted his position that the State should have provided the video of Myers' interview before Myers' testimony. Pope's counsel stated that she was caught "completely off guard" by Myers' testimony and that the testimony "was the first time [Pope's counsel had] ever heard this version of events, and [she] was unable to properly prepare to impeach [Myers'] credibility because [Pope's counsel] did not know that [Myers] was going to be changing her story 180."

¶13 After the parties settled jury instructions, Pope's counsel asked to view the video overnight to determine if there were issues she should raise with the District Court to preserve for appeal. The District Court put the video recording in the record, but concluded it could not order the State to produce the recording if the State opposed production. The State again refused to produce the video, arguing it was work product made in preparation for trial. The State represented the video reflected Myers stating "essentially the same as what she testified to [at trial,]" and the District Court agreed that the testimony seemed inculpatory and ruled that the State was not required to produce the video.

¶14 Before the trial resumed the next morning, Pope moved for a mistrial as a sanction pursuant to § 46–15–329(5), MCA, on the grounds that the State failed to disclose the witness statement. Citing the prosecution's disclosure obligations under §§ 46–15–322 and –327, MCA, Pope argued that the interview did not meet the definition of work product under § 46–1–202(31), MCA. Pope asserted that with timely knowledge of Myers' changed testimony, he may have presented his case differently. Specifically, Pope's counsel contended she could have addressed Myers' recantation during her opening and examined witnesses differently. The State reiterated its position that the video was work product and not discoverable. The District Court agreed with the State, and ruled that § 46–15–322, MCA, applied only to exculpatory information, which it determined the video did not contain. Later, the District Court issued a written order denying the motion for a mistrial, on the grounds that the interview was work product that contained no...

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16 cases
  • State v. Twardoski
    • United States
    • Montana Supreme Court
    • July 20, 2021
    ...of discovery for an abuse of discretion. State v. Pope, 2019 MT 200, ¶ 10, 397 Mont. 95, 447 P.3d 469 (Pope II) (citing State v. Pope, 2017 MT 12, ¶ 16, 386 Mont. 194, 387 P.3d 870 (Pope I)). "A district court abuses its discretion if it acts arbitrarily, unreasonably, or without employing ......
  • State v. Twardoski
    • United States
    • Montana Supreme Court
    • July 20, 2021
    ...matters of discovery for an abuse of discretion. State v. Pope , 2019 MT 200, ¶ 10, 397 Mont. 95, 447 P.3d 469 ( Pope II ) (citing State v. Pope , 2017 MT 12, ¶ 16, 386 Mont. 194, 387 P.3d 870 ( Pope I )). "A district court abuses its discretion if it acts arbitrarily, unreasonably, or with......
  • State v. Ellison, DA 16-0105
    • United States
    • Montana Supreme Court
    • October 16, 2018
    ...charged. This Court has held that this statute implies a surcharge "per user upon conviction, and not per conviction of that user." State v. Pope , 2017 MT 12, ¶ 32, 386 Mont. 194, 387 P.3d 870 (emphasis in original). The State concedes this issue. The District Court erred by imposing the i......
  • State v. Barrows
    • United States
    • Montana Supreme Court
    • August 21, 2018
    ...may only be imposed once under each separate criminal cause number and may not be imposed on each count. Section 3-1-317, MCA ; State v. Pope , 2017 MT 12, ¶ 32, 386 Mont. 194, 387 P.3d 870. When the State does not present any evidence of additional recoupable costs, as is the case herein, ......
  • Request a trial to view additional results

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