State v. Wagner

• Citation: 296 P.3d 1142,369 Mont. 139
• Decision Date: 27 February 2013
• Docket Number: No. DA 11–0238.,DA 11–0238.
• Parties: STATE of Montana, Plaintiff and Appellee, v. Christopher WAGNER, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

369 Mont. 139

296 P.3d 1142

STATE of Montana, Plaintiff and Appellee,

v.Christopher WAGNER, Defendant and Appellant.

No. DA 11–0238.

Supreme Court of Montana.

Submitted on Briefs Nov. 28, 2012.

Decided Feb. 27, 2013.

For Appellant: Wade Zolynski, Chief Appellate Defender; Lisa S. Korchinski, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant Attorney General; Helena, Montana.

Justice MICHAEL E. WHEAT delivered the Opinion of the Court.

¶ 1 Christopher Wagner (Wagner) appeals from the judgment of the Eighteenth Judicial District Court, Gallatin County, entered after a jury convicted him of attempted deliberate homicide, as well as from the District Court's denial of his motion to dismiss. We affirm.

¶ 2 Wagner raises the following three issues on review:

¶ 3 Issue One: Was Wagner denied his constitutional right to due process because a motions hearing failed to record and therefore no transcript is available for effective appellate review?

¶ 4 Issue Two: Did the District Court err by denying Wagner's motion to dismiss for negligent destruction of exculpatory evidence?

¶ 5 Issue Three: Did the District Court err by improperly limiting Wagner's cross-examination of a State's witness?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 This case arises from a gun fight between Wagner and Michael Peters (Peters) that occurred on January 17, 2007 in Bozeman, Montana. The case proceeded to trial in 2008, and a jury convicted Wagner of attempted deliberate homicide with a weapon. On appeal, this Court reversed and remanded for a new trial upon finding that prosecutorial comments regarding Wagner's post- Miranda silence constituted plain error. See State v. Wagner, 2009 MT 256, 352 Mont. 1, 215 P.3d 20. Because we recounted in detail the factual history of this matter in Wagner, we provide here only those details pertinent to Wagner's present appeal.

¶ 7 After we remanded the case for a new trial, the District Court held several pre-trial hearings and ruled on various motions. Of particular relevance here is Wagner's December 24, 2009 motion to dismiss due to negligent destruction of exculpatory evidence. Wagner argued that police failed to properly preserve the crime scene by allowing Peters' father, Dr. Peters, to enter and move Peters' vehicle prior to it being processed. As a result, Wagner claimed a violation of his due process rights.

¶ 8 The District Court held a hearing on the motion on March 24, 2010. The court denied the motion, and issued a decision and order on March 31, 2010. Based on testimony and evidence presented at the hearing, the court made several factual findings pertaining to the crime scene following the shooting. The court found that Peters was quickly transported to the hospital by ambulance while law enforcement worked to secure the scene and establish perimeters. During that time, Dr. Peters made two separate trips to Peters' vehicle. On the first trip, Dr. Peters saw and collected a .32 caliber automatic gun from the floor of the vehicle, which he brought to a police officer on the scene. Dr. Peters thought he may have touched the door and steering wheel during this trip. Dr. Peters made a second trip to the vehicle in search of Peters' cell phone. He rummaged through the vehicle for a few minutes, found the phone, and gave it to one of the officers. Because the vehicle was in the middle of the road, Dr. Peters moved it to the side of the road, locked it and brought the keys to an officer. Dr. Peters was trying to “get things under control and help out,” and was not thinking about the overriding concept of a crime scene. Due to the injuries sustained in the shooting and the fact that Wagner's location was unknown after the incident, the District Court found that “preserving property was a lower priority [for law enforcement] than life safety and security issues.”

¶ 9 Wagner alleged that Dr. Peters destroyed exculpatory evidence during these two trips to Peters' truck. In the court's order denying Wagner's motion, the court found that Wagner went “to substantial lengths to set forth numerous pieces of evidence that were not gathered by law enforcement as a result of [Dr.] Peters moving [Peters'] truck and removing items.” However, the court determined that Wagner failed to show that any of the allegedly destroyed evidence was material to his defense or apparently exculpatory.

¶ 10 Also relevant is the pretrial motions hearing (the Hearing) the District Court held on February 25, 2010. The court heard arguments on several motions, including Wagner's motion to exclude prior testimony. When Wagner requested transcripts from the Hearing at the beginning of this appeal he was notified that due to technical problems that occurred during the Hearing, no transcript of the proceeding existed. On October 28, 2011, Wagner filed a motion with this Court to remand and begin case anew. He argued that the unavailability of a transcript of the Hearing constituted a violation of his due process rights. The State objected, asserting that the unavailable transcript would not prevent effective appellate review of Wagner's appeal. We denied Wagner's motion, concluding “the unavailable transcript would be of limited value in connection with this appeal and that the absence of the hearing transcript does not appear to rise to the level of a due process violation.”

¶ 11 Wagner's second jury trial began on December 6, 2010, and concluded three days later with a jury verdict convicting Wagner of attempted deliberate homicide. During the course of the trial, the State moved to preclude the introduction of other crimes evidence of its witness, Tim Polly (Polly), pursuant to M.R. Evid. 609. Polly was an inmate at the Gallatin County Detention Facility with Wagner who, prior to Wagner's second trial, notified law enforcement of statements Wagner made to Polly at the jail. Specifically, Polly informed that Wagner stated that once he beat the charges against him, he was going to kill Peters and Melody Lark, Wagner's ex-girlfriend. Polly has a lengthy criminal history that, among many other charges, includes making false reports to law enforcement. At the time of trial, Polly also had a pending felony charge against him for domestic violence. Wagner objected to the State's motion to preclude this evidence and argued that he should be allowed to inquire about Polly's full criminal record.

¶ 12 Relying on State v. Martin, 279 Mont. 185, 926 P.2d 1380 (1996), State v. Gollehon, 262 Mont. 1, 864 P.2d 249 (1993), and M.R. Evid. 608 and 609, the court granted the State's motion. Despite Wagner's contention that prohibiting cross-examination on Polly's criminal charges would violate Wagner's confrontation rights, the court determined Wagner could “ask [Polly] if he's given false information [to law enforcement] and ask him the circumstances of that ... but [ ] cannot ask him if he was charged with a crime or whether he was convicted of a crime.”

¶ 13 Additional facts will be included where necessary.

STANDARD OF REVIEW

¶ 14 The denial of a motion to dismiss in a criminal case presents a question of law that we review de novo. State v. Giddings, 2009 MT 61, ¶ 42, 349 Mont. 347, 208 P.3d 363. Generally, we review a district court's evidentiary rulings for an abuse of discretion. State v. Stock, 2011 MT 131, ¶ 17, 361 Mont. 1, 256 P.3d 899. A district court abuses its discretion if it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. Stock, ¶ 17.

DISCUSSION

¶ 15 Issue One: Was Wagner denied his constitutional right to due process because a motions hearing failed to record and therefore no transcript is available for effective appellate review?

¶ 16 Wagner argues that pursuant to the United States Supreme Court decision in Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), the unavailability of the Hearing transcript resulted in a violation of his due process rights. He maintains that while several errors may have occurred at the Hearing—including a potential violation of attorney-client privilege when Wagner's former trial counsel testified—appellate counsel does not know exactly what they are because there is no transcript. Wagner also argues that any alternatives to recreate the record from the Hearing would be insufficient. Wagner therefore claims he is denied effective appellate review and this Court should reverse his conviction and remand for a new trial. In the alternative, Wagner asks this Court to remand to see if reconstruction of the Hearing is possible.

¶ 17 The State counters that this Court already disposed of Wagner's argument when we denied Wagner's motion to remand and begin the case anew. Pursuant to the law of the case doctrine, the State argues this Court should not reconsider this issue. We agree.

¶ 18 Under the law of the case doctrine, a prior Montana Supreme Court decision resolving an issue between the same parties is binding and may not be relitigated. In re Estate of Snyder, 2009 MT 291, ¶ 6, 352 Mont. 264, 217 P.3d 1027;Murphy Homes, Inc. v. Muller, 2007 MT 140, ¶ 56, 337 Mont. 411, 162 P.3d 106;Muri v. Frank, 2003 MT 316, ¶ 11, 318 Mont. 269, 80 P.3d 77. This doctrine “ ‘expresses the practice of courts generally to refuse to reopen what has been decided.’ ” Murphy Homes, ¶ 56 (quoting Fiscus v. Beartooth Elec. Coop., 180 Mont. 434, 436, 591 P.2d 196, 197 (1979)). Like res judicata, the law of the case doctrine is based on policies of judicial economy and finality of judgments. Muri, ¶ 11.

¶ 19 In his reply brief, Wagner argues that our order denying his motion to remand did not include a “resounding ‘principle or rule of law necessary’ to [our] decision.” Relying on Plains Grains L.P. v. Bd. of Co. Comm'rs, 2010 MT 155, 357 Mont. 61, 238 P.3d 332, Wagner thus contends that we have not yet established any law of the...