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State v. Montgomery

Court of Appeals of Idaho

February 21, 2017

STATE OF IDAHO, Plaintiff-Respondent,
v.
DANIEL MONTGOMERY, Defendant-Appellant.

         2017 Opinion No. 17

         Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Cynthia K. C. Meyer, District Judge.

         Judgment of conviction, affirmed.

          Eric D. Fredericksen, State Appellate Public Defender; Elizabeth A. Allred, Deputy Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.

          HUSKEY, JUDGE

         Daniel Montgomery appeals from his judgment of conviction after a jury found him guilty of unlawful discharge of a firearm at a house, occupied building, vehicle, etc. Montgomery argues the district court abused its discretion when it allowed the State's undisclosed witnesses to testify on rebuttal. Additionally, Montgomery argues the State committed prosecutorial misconduct, resulting in a violation of his right to a fair trial. The district court did not err when it determined that rebuttal witnesses need not be disclosed pursuant to Idaho Criminal Rule 16(b)(6), but even if that was error, the error was harmless. Additionally, the State did not engage in prosecutorial misconduct during its closing argument. We affirm the district court's decision.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         One evening, a vehicle swerved through a neighborhood and struck a trash can. The vehicle drove to the end of the street, turned around, and began to drive back in the opposite direction. Montgomery walked to the middle of the street and pointed his gun at the approaching vehicle, forcing it to stop. Once stopped, the driver exited the vehicle and spoke with Montgomery. Accounts differ as to the length and the topic of the conversation. The driver returned to his vehicle, started driving forward, and struck Montgomery, at which point Montgomery fired his gun at the vehicle. The two occupants of the vehicle drove away unharmed.

         The State charged Montgomery with two counts of aggravated assault, Idaho Code §§ 18-901, 19-2520, 18-905, and one count of unlawful discharge of a firearm at an occupied vehicle, I.C. §§ 18-3317, 19-2520. Montgomery filed a request for discovery pursuant to I.C.R. 16(b)(1-8), and the State provided a witness list as well as a supplemental witness list. After the preliminary hearing, the first count of aggravated assault toward the driver of the vehicle was dismissed because of insufficient evidence. An information was filed and charged Montgomery with one count of aggravated assault of the vehicle's passenger and one count of unlawful discharge of a firearm at a vehicle.

         At trial, the State called five witnesses to testify about the events. After the State rested, Montgomery called his wife and his daughter to testify about what they observed on that night. Montgomery also called three neighbors who recounted what they saw during the incident. Finally, Montgomery testified not only about what happened during the altercation, but also about visiting the hospital the day after the incident and a hip injury he later discovered. Once the defense rested, the State called four rebuttal witnesses, although only the first two witnesses were disclosed on the State's witness lists prior to trial. The first rebuttal witness related his conversation with Montgomery after the altercation regarding Montgomery's injuries. The second rebuttal witness described his conversation with Montgomery at the police station on the night in question. This witness testified about the discrepancy between the video surveillance recording of the events and Montgomery's explanation at the police station and at trial about when his gun was drawn.

         Before the third rebuttal witness testified, Montgomery objected that the two remaining rebuttal witnesses were not disclosed prior to trial and as a result, should not be permitted to testify. The trial court relied on precedent and the relevance of their testimony as the basis for overruling the objection. The third witness, who was not disclosed in the State's pretrial witness list, testified regarding Montgomery's good health when he was booked into jail. The fourth, another undisclosed rebuttal witness, testified regarding the bullet holes in the car tire and other damage to the vehicle.

         The jury found Montgomery not guilty of aggravated assault. The jury found Montgomery guilty of unlawful discharge of a firearm at a vehicle. The district court imposed an eight-year sentence, with four years determinate, suspended the sentence, and placed Montgomery on probation. Montgomery timely appeals.

         II. ANALYSIS

         A. We Are Constrained to Hold the District Court Acted Consistently With the Applicable Legal Standards When It Determined the State Was Not Required to Disclose Its Rebuttal Witnesses Pursuant to I.C.R. 16(b)(6)

         Montgomery argues the district court abused its discretion when it allowed the State to present the testimony of two undisclosed rebuttal witnesses. Montgomery asserts the plain language of I.C.R. 16(b)(6) requires the State to disclose all witnesses who may testify. He further argues the failure to disclose the rebuttal witnesses should have resulted in the exclusion of their testimony. Although Idaho courts have ruled otherwise, Montgomery argues the plain language of I.C.R. 16(b)(6) and the 1989 amendment to I.C. § 19-1302 require the disclosure of any potential witness; therefore, rendering any opinion issued subsequent to the amendment incorrect.

         When a party has failed to comply with discovery, the trial court may impose sanctions including, in appropriate circumstances, the exclusion of a witness. I.C.R. 16(f)(2), 16(j); State v. Miller, 133 Idaho 454, 456-57, 988 P.2d 680, 682-83 (1999); State v. Harris, 132 Idaho 843, 846, 979 P.2d 1201, 1204 (1999); State v. Lamphere, 130 Idaho 630, 633, 945 P.2d 1, 4 (1997). Sanctions serve the dual purposes of encouraging compliance with discovery and punishing misconduct. Roe v. Doe, 129 Idaho 663, 667, 931 P.2d 657, 661 (Ct. App. 1996). The choice of an appropriate sanction, or whether to impose a sanction at all, for a party's failure to comply with a discovery request or order is within the discretion of the trial court. State v. Stradley, 127 Idaho 203, 207-08, 899 P.2d 416, 420-21 (1995); State v. Hawkins, 131 Idaho 396, 405, 958 P.2d 22, 31 (Ct. App. 1998). To determine whether a sanction will be imposed and what it will be, the trial court must weigh the equities, balancing the culpability of the disobedient party with the resulting prejudice to the innocent party in light of the twin aims of the sanction power. State v. Anderson, 145 Idaho 99, 105, 175 P.3d 788, 794 (2008); Roe, 129 Idaho at 667, 931 P.2d at 661. In reviewing a discretionary decision we ask: (1) whether the trial court correctly perceived the issue as one of discretion, (2) whether the trial court acted within the boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it, and (3) whether the trial court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).

         In reviewing whether the trial court abused its discretion, Montgomery does not argue the court failed to perceive the issue as one of discretion. Additionally, we hold that although Montgomery asserts the district court "did not reach its decision when it allowed [Rebuttal Witness 1] and [Rebuttal Witness 2] to testify based upon an exercise of reason, " this argument is without merit. The district court listened to arguments from both parties at trial, considered the statutory language of the Idaho Criminal Rules and Idaho Code, analyzed the case precedent, and concluded that despite the State's failure to disclose the rebuttal witnesses, in its discretion, the court could allow the undisclosed rebuttal witnesses to testify. This analysis demonstrates a sufficient exercise of reason. The issue, therefore, relates only to the second prong of the Hedger standard: whether the trial court acted within the boundaries of its discretion and consistent with the legal standards applicable to the choices available.

         It is undisputed that Montgomery served a request for discovery, pursuant to I.C.R. 16. In this request for discovery, Montgomery asked for the following:

6. A written list of the names, addresses, phone numbers and/or other reasonable means of contact for all persons having knowledge of relevant facts who may be called by the prosecuting attorney as witnesses at trial, together with a NCIC report and a Spillman report of any such persons. Also the statements made by the prosecution witnesses or prospective witnesses, made to the prosecuting attorney or his agents, or to any official involved in the investigatory process of the case.

         It is also undisputed that two rebuttal witnesses called by the State had not been disclosed to Montgomery prior to trial.

         In relevant part, I.C.R. 16(b)(6) states:

Upon written request of the defendant the prosecuting attorney shall furnish to the defendant a written list of the names and addresses of all persons having knowledge of relevant facts who may be called by the state as witnesses at the trial, together with any record of prior felony convictions or any such person which is within the knowledge of the prosecuting attorney.

         Montgomery argues the language of I.C.R. 16(b)(6) clearly states that upon request, the prosecuting attorney must furnish a list of all persons who may be called as a witness. Although Idaho case law has allowed undisclosed witnesses to testify on rebuttal, Montgomery asserts this case law is manifestly wrong and not binding authority because no Idaho statute has allowed rebuttal witnesses to be undisclosed since I.C. § 19-1302 was amended in 1989. In response, the State argues Idaho case law, which allows the testimony of undisclosed rebuttal witnesses, is consistent with the plain language of I.C.R. 16(b)(6). The State also asserts Montgomery failed to show prejudice from the rebuttal witness testimony.[1]

         We acknowledge there is a discrepancy between the plain language of I.C.R. 16(b)(6) and Idaho precedent. Historically, the issue of whether known rebuttal witnesses must be disclosed prior to trial has been governed by an interpretation of I.C. § 19-1302 which relied on the pre-1989 version of the statute. As such, there are two conflicting lines of authority that control the resolution of the issue. First, rules of statutory interpretation and precedent from the Idaho Supreme Court require a court to follow the law as written when it is interpreting a statute or court rule. If this line of authority is followed, rebuttal witnesses must be disclosed. Second, case law has consistently held that rebuttal witnesses need not be disclosed and their testimony is nonetheless admissible. If this line is followed, the district court did not err in determining rebuttal witnesses need not be disclosed prior to testifying. In analyzing this conflict we will look not only to the plain language of I.C.R. 16(b)(6), but also the historical relationship between I.C.R. 16(b)(6), I.C. § 19-1302, and the cases that interpret the rule and the statute.

         1. The plain language of I.C.R. 16(b)(6) requires the disclosure of all witnesses

         We begin with the language at issue in this case. This Court exercises free review over the application and construction of statutes. State v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a statute is plain and unambiguous, this Court must give effect to the statute as written, without engaging in statutory construction. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The language of the statute is to be given its plain, obvious, and rational meaning. Burnight, 132 Idaho at 659, 978 P.2d at 219. If the language is clear and unambiguous, there is no occasion for the court to resort to legislative history or rules of statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67. When this Court must engage in statutory construction because an ambiguity exists, it has the duty to ascertain the legislative intent and give effect to that intent. State v. Beard, 135 Idaho 641, 646, 22 P.3d 116, 121 (Ct. App. 2001). To ascertain such intent, not only must the literal words of the statute be examined, but also the context of those words, the public policy behind the statute, and its legislative history. Id. It is incumbent upon a court to give an ambiguous statute an interpretation which will not render it a nullity. Id. Constructions of an ambiguous statute that would lead to an absurd result are disfavored. State v. Doe, 140 Idaho 271, 275, 92 P.3d 521, 525 (2004).

         The Idaho Supreme Court clarified how Idaho courts should interpret statutory language when the language is unambiguous in Verska v. Saint Alphonsus Reg'l Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011). Such interpretation must begin with the literal words of the statute; those words must be given their plain, usual, and ordinary meaning; and the statute must be construed as a whole. Id. at 893, 265 P.3d 502. It is well established that where statutory language is unambiguous, legislative history and other extrinsic evidence should not be consulted for the purpose of altering the clearly expressed intent of the legislature. Id. In addition, the Court analyzed how to deal with a statute when it has unambiguous language, even if the language appears absurd. In overruling the holding in State, Dept of Law Enf't v. One 1955 Willys Jeep, 100 Idaho 150, 595 P.2d 299 (1979), the Supreme Court explained if a statute's clear language was absurd, a court still could not construe the statute to mean something other than what it says, since the Idaho Constitution provides that only the legislature has the power to revise statutes. Verska, 151 Idaho at 895, 265 P.3d at 508. The Court stated: "Thus, we have never revised or voided an unambiguous statute on the ground that it is patently absurd or would produce absurd results when construed as written, and we do not have the authority to do so." Id. at 896, 265 P.3d at 509.

         Not only has Idaho case law defined how statutes must be read, but also that Idaho courts shall interpret court rules using these same principles of statutory interpretation. See, e.g., Joyner v. State, 156 Idaho 223, 229, 322 P.3d 305, 311 (Ct. App. 2014); State v. Knutsen, 138 Idaho 918, 920-21, 71 P.3d 1065, 1067-68 (Ct. App. 2003). The Idaho Supreme Court held that when interpreting court rules, Idaho appellate courts apply the same standards of construction as are utilized with statutes. Miller v. Haller, 129 Idaho 345, 350, 924 P.2d 607, 612 (1996). In order to use the same standards of statutory construction, courts must begin any interpretation of court rules with an examination of the literal words of the rule and give the language its plain, obvious, and rational meaning. Doe v. State, 153 Idaho 685, 689, 290 P.3d 1277, 1281 (Ct. App. 2012).

         Here, the Idaho Criminal Rules utilize clear and unambiguous language in I.C.R. 16(b)(6). The rule requires that if the defendant issues a written request, "the prosecuting attorney shall furnish to the defendant a written list of the names and addresses of all persons having knowledge of relevant facts who may be called by the state as witnesses at the trial." I.C.R. 16(b)(6). The plain language of I.C.R. 16(b)(6) dictates that the prosecutor must disclose the names and addresses of all persons who may be called as a witness with no express exception, which would include rebuttal witnesses. Since we apply Idaho Criminal Rules according to their plain language, and because I.C.R. 16(b)(6) contains no exception concerning the disclosure of rebuttal witnesses by virtue of the language of the rule itself, a prosecutor must disclose all witnesses with knowledge of relevant facts, even those that may be called as rebuttal witnesses. However, simply applying the rule as written does not harmonize the rule, the statute, and the case law. Therefore, we turn next to the historical relationship between I.C.R. 16(b)(6), I.C. § 19-1302, and precedent which interprets both the rule and the statute.

         2. The relationship between I.C. § 19-1302 and I.C.R. 16

         There is a historical relationship which should be recognized between I.C.R. 16(b)(6), I.C. § 19-1302, and the Idaho case law interpreting the court rule and the statute. We provide the following legislative history of I.C. § 19-1302 not as a way to interpret the language of the statute or I.C.R. 16(b)(6), but rather as a means by which to address a line of cases that seemingly rest on text that no longer exists.

         We begin with I.C. § 19-1302, its 1989 amendment, and the degree to which the code section originally related to I.C.R. 16(b)(6). Originating in the late nineteenth century, I.C. § 19-1302 existed in substantially ...


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