State v. Yarns
| Decision Date | 12 February 1992 |
| Docket Number | No. 91-253,91-253 |
| Citation | 252 Mont. 45,826 P.2d 543 |
| Parties | STATE of Montana, Plaintiff and Appellant, v. Mary Kelly YARNS, Defendant and Respondent. |
| Court | Montana Supreme Court |
Marc Racicot, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Mike Salvagni, County Atty., Gary Balaz, Deputy County Atty., Bozeman, for plaintiff and appellant.
Marcelle C. Quist, Bolinger & Quist, Bozeman, for defendant and respondent.
The appellant, State of Montana, appeals an order of the District Court of the Eighteenth Judicial District, Gallatin County dismissing the State's appeal of a Justice Court order suppressing evidence, remanding the case to the Justice Court, and directing that the time of the appeal be charged to the State and that the Montana Department of Fish, Wildlife and Parks pay the fees of appointed defense counsel. We reverse and remand to the District Court for a trial de novo.
The issues on appeal are:
1. Did the District Court err in remanding the case to the Justice Court for trial after the State had appealed from the Justice Court's order suppressing evidence?
2. Did the District Court err in ordering the fees of appointed defense counsel to be paid by the Montana Department of Fish, Wildlife and Parks?
On March 11, 1990, officials of the Montana Department of Fish, Wildlife and Parks learned that approximately eighteen buffalo were at Horse Butte on Hebgen Lake, which is located ten miles northwest of West Yellowstone, Montana and five miles outside of Yellowstone National Park in Gallatin County. That evening a game warden notified three buffalo hunters that a hunt would take place on March 13, 1990.
On the morning of March 13, the hunters met with several game wardens and other persons including a biologist, a researcher, three State veterinarians, a national park ranger, and members of the news media. The group then traveled on snowmobiles to the Horse Butte area where the buffalo had last been seen. The buffalo were gone when the group arrived. Several State officials then searched for the buffalo, which were found being herded toward Yellowstone National Park by a group of eleven men and women. The officials were advised that this group was there to prevent the killing of the buffalo.
Eventually, hunter Hal Slemmer shot one of the buffalo. As Mr. Slemmer was standing with a game warden near the buffalo, he was approached by a woman who was with the protest group. The woman, later identified as the defendant Mary Yarns, dipped her hand into the blood of the buffalo and wiped both of her cheeks with the blood. After making a comment to Mr. Slemmer, the phraseology of which is disputed by the parties on appeal, the defendant then wiped the blood from the buffalo down the middle of Mr. Slemmer's face.
On July 3, 1990, the Gallatin County Attorney filed a complaint in the Justice Court, charging the defendant with misdemeanor assault in violation of Sec. 45-5-201(1)(c), MCA (1989). The complaint was supported by an affidavit of probable cause and alleged that on March 13, 1990, the defendant had purposely or knowingly made physical contact of an insulting or provoking nature with Hal Slemmer when she wiped Mr. Slemmer's face with the blood from a buffalo. The defendant was arrested on July 7, 1990.
Trial in Justice Court was set for December 20, 1990. On the morning of trial, but prior to its commencement, the State filed a motion in limine requesting a pretrial ruling on the admissibility of a videotape which depicted the events surrounding the hunt protest. The State argued that the entire tape was admissible under the transaction rule, Sec. 26-1-103, MCA (1989), and was necessary to show the defendant's purpose in going to the buffalo hunt location and her intent at the time she committed the assault. The Justice Court ruled that it would allow the State to present only that portion of the videotape showing the blood being placed on Mr. Slemmer's face and the scenes immediately following that event. The State was not allowed to present portions of the videotape showing another protest group member assaulting another hunter prior to the assault with which the defendant is charged. Those prohibited portions of the videotape also show actions of other members of the group.
The State then filed a notice of appeal from the Justice Court's order for trial de novo in the District Court of the Eighteenth Judicial District, Gallatin County, and moved to transfer the Justice Court record to the District Court. Trial in the District Court was set for March 25, 1991.
On January 16, 1991, the defendant filed a motion to dismiss the State's appeal. The defendant's motion was briefed by the parties and argued to the District Court on February 19, 1991. On March 21, 1991, the District Court issued an order dismissing the State's appeal, remanding the case to the Justice Court, and directing that the time of the appeal be charged to the State and that the Montana Department of Fish, Wildlife and Parks pay the fees of appointed defense counsel. The District Court relied on decisions from Kansas and Illinois as well as the American Bar Association Project on Standards for Criminal Justice in concluding that the State should be required to show that the suppression order seriously impeded the continuation of the prosecution in order for the State to exercise its right of appeal. The court concluded that the Justice Court's order did not seriously impede continuation of the prosecution and that the matter should be remanded for trial in the Justice Court.
Did the District Court err in remanding the case to the Justice Court for trial after the State had appealed from the Justice Court's order suppressing evidence?
The State contends that the District Court exceeded its constitutional and statutory authority by assuming the role of an appellate court, reviewing the Justice Court's order, and remanding the case for trial. It asserts that the proper procedure in this case was a trial de novo in the District Court.
Article VII, Section 4(2) of the Montana Constitution provides that the district court "[s]hall hear appeals from inferior courts as trials anew unless otherwise provided by law." Section 46-17-311, MCA (1989), in effect at the time of the State's appeal, sets forth the appeal procedure for criminal cases arising in justice court:
Appeal. (1) Except as provided in 46-17-203 [plea of guilty in justice court waives right to trial de novo in district court], all cases on appeal from justices' or city courts must be tried anew in the district court....
(2) A party may appeal to the district court by giving written notice of his intention to appeal within 10 days after judgment, except that the state may only appeal in the cases provided for in 46-20-103.
. . . . .
The scope of the State's right to appeal is set forth in Sec. 46-20-103, MCA (1989), which provides in pertinent part:
Scope of appeal by state. (1) Except as otherwise specifically authorized, the state may not appeal in a criminal case.
(2) The state may appeal from any court order or judgment the substantive effect of which results in:
. . . . .
(e) suppressing evidence;
. . . . .
In State v. Kesler (1987), 228 Mont. 242, 741 P.2d 791, this Court held that the constitutional and statutory provisions set forth above require the district court to try anew any appeal by the State from a justice court order, entered pretrial, suppressing evidence. As in the present case, the State in Kesler appealed to the district court from a pretrial suppression order of the justice court. The defendant moved to affirm the suppression order and dismiss the appeal, contending that the district court had appellate jurisdiction to review the suppression order. We held that a district court does not have appellate jurisdiction to review a justice court order suppressing evidence and that the clear legislative intent of Sec. 46-17-311, MCA, is to require a trial de novo on all appeals from justice court.
Section 46-17-311(2), MCA, as amended, now permits the State to appeal justice court orders and judgments in certain circumstances. The clear intent of Section 46-17-311(1), MCA, is to require a trial de novo in district court on all appeals from justice court. The legislature could have prohibited a trial de novo in district court by amending Subsection (1) of Section 46-17-311, MCA. The legislature did not prohibit trial de novo when it amended the statute and we will not judicially amend the statute to create such a prohibition.
Kesler, 228 Mont. at 245, 741 P.2d at 793.
The defendant argues that the Justice Court ruling was an evidentiary ruling rather than a suppression ruling and was therefore not appealable, citing People v. McCollins (1984), 126 Ill.App.3d 1083, 82 Ill.Dec. 134, 468 N.E.2d 196. In McCollins, the Appellate Court of Illinois, Third District, made a distinction, for purposes of the state's right of appeal, between the suppression of evidence and the exclusion of evidence. The defendant argues that a similar distinction should be made in this case. We disagree.
In State v. T.W. (1986), 220 Mont. 280, 715 P.2d 428, this Court addressed the issue of whether the district court's granting of the defendant's pretrial motion in limine, precluding the State from using certain evidence at trial, was appealable by the State pursuant to Sec. 46-20-103(2)(e), MCA. Quoting from Rodgers v. United States (D.C.Cal.1958), 158 F.Supp. 670, we stated that "suppress" means "to effectively prevent from using" and upheld the State's right to appeal from any pretrial order which effectively prevents the State from using evidence, regardless of whether the constitutional rights of the defendant are at issue. T.W., 220 Mont. at 287, 715 P.2d at 432.
The defendant further argues that the Justice Court's order was not appealable in light of this Court's decision in State...
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State v. Romero
...and provided that all appeals from justice court require a trial de novo in district court. Kesler, 741 P.2d at 793. In State v. Yarns (1992), 252 Mont. 45, 826 P.2d 543, the State contended that the district court exceeded its constitutional and statutory authority by reviewing the justice......
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State v. Strizich
...in this case the ruling is appealable. T.W., 220 Mont. at 287, 715 P.2d at 432 (citation omitted). We followed T.W. in State v. Yarns (1992), 252 Mont. 45, 826 P.2d 543. Although two members, in dissent, cautioned that there is a significant difference between the "suppression of evidence" ......
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State v. Willis
...in the "destruction" of the State's case presents this Court with an argument similar to the one we considered in State v. Yarns, 252 Mont. 45, 826 P.2d 543 (1992), overruled in part on other grounds, Strizich, 286 Mont. at 11, P.2d at 1371. The district court in Yarns denied an appeal by t......