State v. Torgerson

• Decision Date: 26 August 2008
• Docket Number: No. DA 06-0821.,DA 06-0821.
• Citation: 345 Mont. 532,192 P.3d 695,2008 MT 303
• Parties: STATE of Montana, Plaintiff and Appellee, v. Lin TORGERSON, Defendant and Appellant.
• Court: Montana Supreme Court

192 P.3d 695

2008 MT 303

345 Mont. 532

STATE of Montana, Plaintiff and Appellee, v. Lin TORGERSON, Defendant and Appellant.

No. DA 06-0821.

Supreme Court of Montana.

Submitted on Briefs December 6, 2007.

Decided August 26, 2008.

For Appellant: Maxwell G. Battle, Jr.; Battle & Edenfield, P.L.L.C., Kalispell, Montana.

For Appellee: Hon. Mike McGrath, Montana, Attorney General; Barbara C. Harris, Assistant Attorney General, Helena, Montana.

Chief Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 A jury in the Ninth Judicial District Court, Toole County, found Lin E. Torgerson guilty of the misdemeanor offenses of unlawful possession of a game animal and unlawful possession of bird parts. Torgerson appeals. We affirm.

¶ 2 We restate the issues as follows:

¶ 3 1. Did the District Court err in refusing to suppress evidence gathered during the searches of Torgerson's residence and the premises of Torgerson Implement?

¶ 4 2. Did the District Court err in admitting the testimony of Torgerson's former wife?

¶ 5 3. Did the District Court erroneously admit hearsay testimony by Game Warden Rod Duty?

¶ 6 4. Did the District Court err in denying Torgerson's motions for mistrial based on alleged prosecutorial misconduct?

¶ 7 5. Was the evidence sufficient to convict Torgerson?

BACKGROUND

¶ 8 In February of 2004, Daisy Doane went to the Conrad, Montana, office of the Montana Department of Fish, Wildlife, and Parks with information about her then-estranged husband Torgerson's unlawful killing of four whitetail deer bucks, in four separate incidents, over a period of several years. Based in large part on the information Doane provided, game wardens and other law enforcement officers obtained warrants to search Torgerson's residence and his family's business, Torgerson Implement. From the collections of antlers and mounts in both locations, they seized two head mounts from the business and a set of velvet antlers and a head mount from the residence. They also seized a golden eagle skull, feathers and numerous photographs of Torgerson posing with dead deer from the residence.

¶ 9 In October of 2004, the State of Montana charged Torgerson with unlawful possession of bird parts and unlawful possession of wildlife — four whitetail deer bucks it alleged he had taken either outside the legal hunting season or illegally with the use of a spotlight. The State valued three of the bucks at $500 each, pursuant to § 87-1-111, MCA, and the fourth as a trophy animal worth $8,000, pursuant to § 87-1-115, MCA.

¶ 10 Doane and Torgerson subsequently divorced. At Torgerson's trial in the summer of 2006, Doane testified for the State under a grant of immunity. Doane told the jury she had pled guilty to two misdemeanor counts of possession of unlawfully — killed game animals-the mounts seized from Torgerson's (and her former) home. She told the jury she had hunted with Torgerson many times while they were dating and during their three-year marriage. At trial, she claimed lack of memory as to many details she had provided the game wardens in February of 2004, but counsel refreshed her memory with notes from her meetings with game wardens. Doane testified that she held a spotlight for Torgerson while he shot at a whitetail buck with velvet-covered antlers in a CRP field before the gun hunting season and then saw the dead animal the next day. She testified that, on another occasion, before the general hunting season during which hunting with a gun is allowed, Torgerson shot a whitetail deer with a gun and then his brother shot the same animal with a bow and arrow. She testified that she held a spotlight while Torgerson shot a whitetail buck with a rifle in Bob Layne's field. She also testified that Torgerson shot a whitetail buck with a gun during bow hunting season on "Parcell's ranch" and brought it home the next day.

¶ 11 The three mounts and the set of velvet antlers seized from Torgerson's home and family business were admitted into evidence. William J. Reneau, director of big game records for the Boone and Crocket Club, identified the mounts and antlers as those of the animals shown in several photographs seized from Torgerson's residence and associated with Doane's testimony about the illegally-taken whitetail bucks. Wildlife biologist Gary Olson explained the yearly cycles of a deer buck's antlers and hair, testifying that deer usually lose their velvet beginning in August. Olson noted the antlers in evidence were still in velvet and, on one mount, the velvet appeared to have been scraped off after the animal died. Olson also noted that the hair on the mounts appeared to be in a transition process between the summer coats and the winter coats, which he testified typically would happen in mid-August to mid-September.

¶ 12 Game Warden Rod Duty testified, among other things, that the five-week general hunting season in Montana begins five weeks before Thanksgiving. He also testified that, prior to the searches, Doane told the wardens where they would find unused hunting tags of Torgerson's and that Torgerson would often save them in case he wanted to use them later. During the search of Torgerson's home, the searchers found hunting tags for the years 1998, 1999 and 2000.

¶ 13 Game Warden Bryan Golie testified that, during the search of Torgerson's home, Torgerson said, "[y]ou're going to find this anyway. I might as well get it." Torgerson then walked over to a back room and picked up a backpack with feathers sticking out of it. He told Golie he had found the feathers, as well as a bird skull which was also in the backpack, while he was antler hunting. According to wildlife biologist Olson, the feathers and skull were golden eagle parts, possession of which is prohibited by law.

¶ 14 Torgerson testified on his own behalf. He admitted shooting two of the deer, but denied doing so illegally. He specifically denied shooting any of the deer with the aid of a spotlight. He told the jury he found the deer in the Layne field already dead, apparently from natural causes; and that he did not shoot the deer Doane claimed he shot with a gun and his brother later shot with a bow and arrow. Torgerson presented evidence that the yearly cycles of deer antlers and coats can vary, and pointed out gaps in Doane's observations. He also suggested Doane or the game wardens may have planted the eagle parts in his home.

¶ 15 The District Court gave the jury two special verdict forms. On the first, the jury was asked whether Torgerson was guilty of possession of unlawfully-killed wildlife and, if so, the total value of the animals he illegally possessed. On the other verdict form, the jury was asked to find whether Torgerson was guilty of unlawful possession of bird parts. The jury found Torgerson guilty of possession of unlawfully-killed wildlife and set the total value at $500; it also found him guilty of unlawful possession of bird parts. The District Court sentenced Torgerson to six months in the county jail on each of the two offenses, all of which time it suspended.

ISSUE 1

¶ 16 Did the District Court err in refusing to suppress evidence gathered during the searches of Torgerson's residence and the premises of Torgerson Implement?

¶ 17 Torgerson timely moved the District Court to suppress evidence gathered during the searches of his residence and family business, arguing the search warrants were based on "illegal private searches" and information obtained from a disgruntled spouse, Doane, whose information was privileged. The District Court denied the motion.

¶ 18 One year later — well after the deadline set in the omnibus order for pretrial motions — Torgerson filed a "supplemental motion to suppress" the same evidence. In that motion, Torgerson raised new arguments for suppressing the evidence, including the argument he now raises on appeal: that the warrants to search his residence and his family's business were facially defective and unlawfully executed as a "fishing expedition" because they did not particularly describe the things to be seized. The District Court denied the "supplemental motion to suppress," citing the law of the case and Torgerson's failure to cite any new evidence previously unavailable which would justify reconsideration of the matter.

¶ 19 In his reply brief, Torgerson claims he did not have all the information to support his motion to suppress until he was represented by his present counsel, who filed the "supplemental motion to suppress" in the District Court. Torgerson does not claim the information was unavailable until that time, however — only that his original counsel did not obtain it.

¶ 20 Absent plain error, this Court will not consider an issue not timely raised in the district court. See State v. Minez, 2004 MT 115, ¶ 30, 321 Mont. 148, ¶ 30, 89 P.3d 966, ¶ 30 (citation omitted). Torgerson did not timely raise this issue in the District Court, nor has he alleged or established plain error. Therefore, we will not consider this issue further.

¶ 21 We hold Torgerson has failed to establish error in the District Court's refusal to suppress evidence gathered during the searches of his residence and the premises of Torgerson Implement.

ISSUE 2

¶ 22 Did the District Court err in admitting the testimony of Doane, Torgerson's former wife?

¶ 23 Torgerson asserts admission of Doane's testimony was improper for several reasons. We address each of his arguments in turn.

¶ 24 Prior to trial, Torgerson moved the District Court to exclude Doane's testimony because she was an accomplice who was legally accountable for two of the counts of unlawful possession of wildlife for which he was being tried — the shootings at which she testified she held the spotlight for him. Immediately before Doane testified, the court denied Torgerson's motion to exclude her testimony and ruled the State could present her testimony before it presented evidence corroborating it, as is required under § 46-16-213, MCA....