State v. Romero
| Decision Date | 06 November 1996 |
| Docket Number | No. 95-067,95-067 |
| Citation | 279 Mont. 58,926 P.2d 717 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Aaron D. ROMERO, Defendant and Appellant. |
| Court | Montana Supreme Court |
Joseph P. Mazurek, Attorney General, Cregg Coughlin, Assistant Attorney General, Helena, Christine A. Cook, County Attorney, Curtis L. Bevolden, Deputy Big Horn County Attorney, Hardin, for Plaintiff and Respondent.
Aaron D. Romero (Romero) appeals from the judgment entered by the Thirteenth Judicial District Court, Big Horn County, finding him guilty of wasting or abandoning the carcass of an antelope in the field, a misdemeanor, hunting elk while privileges are suspended, a misdemeanor, hunting bear while privileges are suspended, a misdemeanor, and hunting antelope while privileges are suspended, a misdemeanor. We affirm.
1. Did the District Court err by denying Romero's motion to dismiss the State's appeal from Justice Court?
2. Did the District Court deny Romero his right to a speedy trial?
3. Did the District Court err in denying Romero's motion to dismiss based on his claim of outrageous government conduct?
4. Did the District Court abuse its discretion in denying Romero's motion to dismiss based on an alleged discovery violation?
5. Did the District Court abuse its discretion when it denied Romero's motion to exclude testimony of Officer Long based on the State's refusal to produce Long's file?
6. Did the District Court abuse its discretion in denying Romero's motion to prohibit the State from introducing exhibits at trial based on an alleged discovery violation?
7. Did the District Court err in denying Romero's motion for a mistrial or dismissal of the charges based on an alleged discovery violation?
8. Did the District Court err in permitting the State to amend the citations after trial had started?
As part of its efforts to curb criminal trafficking of wildlife, the criminal investigation section of the Montana Department of Fish, Wildlife & Parks assigned Officer Long (Long) to investigate illegal guided hunts on or near the Crow Indian Reservation. Long posed as a Great Falls businessman and met with William Hugs (Hugs) at a Billings taxidermy shop where he purchased a live bear cub from Hugs. Long also set up guided hunts on the Crow Reservation for bear, deer, and antelope. At that time, Long focused his investigations on Hugs.
On April 17, 1993, Hugs took Long to hunt with Romero at a lake near Fort Smith. Romero supplied the boat. The group hunted the water's edge where Romero claimed to have killed bears previously, but they did not find any game that morning. That afternoon, the group went "four-wheeling," but again saw no game.
On May 8, 1993, Hugs, Long, and Romero used Romero's boat to hunt the same lake shore they had hunted in April. They spotted a black bear near the shore; both Long and Hugs shot at it but did not kill the bear. Romero remarked that he was about to get out his gun to help kill the bear, but did not take a shot. Shortly thereafter, Hugs instructed Long to kill a mule dear near the shore and leave it for bear bait. In the afternoon, the party hunted from Long's vehicle in the Pryor Mountains. Hugs and Romero saw elk and hunted them on foot because Long said he did not want to hunt them. However, Long watched Romero and Hugs stalk and shoot at the elk, killing one and wounding another. Romero and Hugs told Long to leave the front quarter of the elk because it did not have enough meat to warrant the trouble of packing it out with them. The following morning, the party returned to the site of the elk kill to see if any bear were feeding on the carcass. Although they did not see a bear at the carcass, they saw a cinnamon black bear on a nearby hill and shot at it but missed.
In August of 1993, the Department of Fish, Wildlife & Parks charged Romero with the following five misdemeanor fish and game violations: hunting elk while privileges were suspended in violation of § 87-1-102(2)(f), MCA; hunting bear while privileges were suspended in violation of § 87-1-102(2)(f), MCA; wasting or abandoning the carcass of an antelope doe in violation of § 87-3-102, MCA; hunting antelope while hunting privileges were suspended in violation of § 87-1-102(2)(f), MCA; and wasting or abandoning part or parts of a big game animal, a bull elk, in violation of § 87-3-102, MCA. At the Justice Court trial, Romero moved to dismiss, claiming entrapment, outrageous government conduct, and failure to provide exculpatory evidence. The State had not produced the videotape of the May 9, 1993 hunt because Long was still undercover and the tape could have jeopardized his investigations and his safety. Based on a written stipulation between Romero and the State, the State edited the tape to obscure Long's identity. Romero moved to dismiss the case in part because he was displeased with the manner in which the State edited the tape. On November 30, 1993, the Justice Court heard Romero's motion, cleared the courtroom, and viewed the videotape. In response to Romero's motion to dismiss, the State told the Justice Court that it would neither concur in nor oppose the motion. Therefore, the Justice Court dismissed the case.
The State immediately appealed to the District Court. On February 3, 1994, Romero moved to dismiss the appeal before the District Court because the State had not opposed the motion in Justice Court. In an order dated April 6, 1994, the District Court denied Romero's motion to dismiss the appeal.
Following the March 28, 1994 omnibus hearing, Romero moved to dismiss the charges on grounds of lack of a speedy trial, outrageous government conduct, entrapment, and failure to provide exculpatory evidence. The District Court heard the motions on April 25, 1994 and May 10, 1994. At the conclusion of the hearing on May 10, 1994, the State requested a transcript of the proceeding which was not prepared until August 1994. The District Court gave Romero until September 20, 1994, to respond. On November 3, 1994, the District Court denied Romero's motions to dismiss and set trial for November 28, 1994. Following three days of trial, a jury found Romero guilty of four of the five misdemeanor fish and game charges. The District Court sentenced Romero to a term of imprisonment for each count, but suspended the prison sentences on the condition that he pay a fine. The District Court further suspended Romero's hunting, fishing, and trapping privileges for three years.
Romero claims that §§ 46-17-311 and 46-20-103, MCA, limit the State's right to appeal from a justice court decision. Specifically, Romero's argument is three-fold. First, he argues that the State lost its statutory right to appeal from the order dismissing the charges when it did not object to Romero's motion to dismiss. Second, he argues that the State is precluded from appealing the Justice Court order because the State failed to preserve its objection in Justice Court. Third, he argues that the District Court should have granted the motion to dismiss under the doctrine of "invited error." The State counters that Romero's claims are without merit and that the District Court properly denied Romero's motion to dismiss the appeal. The State contends that its statutory rights to appeal and to a district court trial de novo are clearly defined and may not be restricted.
A district court's denial of a motion to dismiss is a legal issue that we review to determine whether the district court's interpretation of the law was correct. State v. Bullock (1995), 272 Mont. 361, 368, 901 P.2d 61, 66.
Article VII, Section 4(2) of the Montana Constitution provides that the district court "shall hear appeals from inferior courts as trials anew unless otherwise provided by law." Section 46-17-311, MCA, provides for appeals of criminal cases arising in justice court. Section 46-17-311, MCA, sets forth the following:
Appeal from justices', municipal, and city courts. (1) Except for cases in which legal issues are preserved for appeal pursuant to 46-12-204, all cases on appeal from a justice's or city court must be tried anew in the district court....
(2) The defendant may appeal to the district court by filing written notice of intention to appeal within 10 days after a judgment is rendered following trial. In the case of an appeal by the prosecution, the notice must be filed within 10 days of the date the order complained of is given. The prosecution may only appeal in the cases provided for in 46-20-103.
Section 46-20-103, MCA, governs the scope of appeal from justice court and provides the following:
Scope of appeal by state. (1) Except as otherwise specifically authorized, the state may not appeal in a criminal case.
In State v. Kesler (1987), 228 Mont. 242, 741 P.2d 791, this Court construed both § 46-17-311, MCA, and § 46-20-103, MCA. In Kesler, the appellant argued that the statutes were ambiguous as to whether they require the district court to conduct a trial de novo. Kesler, 741 P.2d at 793. We noted that when the legislature amended § 46-17-311, MCA, it intended to overrule our decision in State v. Sanchez (1980), 187 Mont. 434, 610 P.2d 162, wherein we held that the State has no right to appeal the final decision of a justice court in a criminal case. Kesler, 741 P.2d at 793. Therefore, in overruling Sanchez, the legislature specifically provided for the State to appeal from a decision in justice court and provided that all appeals from justice court require a trial de novo in district court. Kesler, 741 P.2d at 793.
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