Opinion No. 127
from the District Court of the First Judicial District of the
State of Idaho, in and for Kootenai County. Hon. Cynthia K.C.
Meyer, District Judge.
judgment of conviction is affirmed.
D. Fredericksen, State Appellate Public Defender, Boise, for
appellant. Elizabeth A. Allred argued.
Lawrence G. Wasden, Attorney General, Boise, for respondent.
Jessica Lorello argued.
Montgomery appeals from his conviction for unlawful discharge
of a firearm at an occupied vehicle. Montgomery contends the
district court abused its discretion when it allowed the
State to present the testimony of two undisclosed rebuttal
witnesses in violation of the requirements of Idaho Criminal
Rule 16(b)(6). Montgomery also asserts that the prosecution
engaged in misconduct by arguing during closing that certain
witnesses lied, resulting in a violation of Montgomery's
right to a fair trial. We affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
September 18, 2014, a white Jeep Cherokee turned onto the
street where Montgomery lived, jumped a curb, and struck a
trash can. The Jeep reached the end of the cul-de-sac, turned
around, and headed toward Montgomery's home. Montgomery
was working on a car in his driveway with his daughter when
he heard screeching tires and the impact. Montgomery entered
the street as the Jeep approached, with his handgun drawn.
pointed his gun at the driver through the windshield, forcing
him to stop. The driver of the Jeep got out and he and
Montgomery briefly spoke, while Montgomery kept his gun
pointed at him. The driver got back in the vehicle, shut the
door, and the Jeep slowly moved forward. Once the Jeep began
to accelerate, it made contact with Montgomery, who moved out
of the way. Montgomery fired two rounds into the engine of
the Jeep as it moved passed him and another three rounds at
the back of the Jeep. The driver and his passenger drove away
unharmed. A neighbor's home security camera recorded the
State charged Montgomery with two counts of aggravated
assault and one count of unlawful discharge of a firearm into
an occupied vehicle. At the preliminary hearing, one count of
aggravated assault was dismissed because of insufficient
evidence. Prior to trial, pursuant to Idaho Criminal Rule
16(b)(6), Montgomery made a discovery request asking for the
names of all persons having knowledge of relevant facts who
may be called by the prosecuting attorney as witnesses at
trial. The State disclosed twenty-five potential witnesses.
trial, Montgomery testified on his own behalf. He essentially
testified that he acted in self-defense or defense of others,
explaining that he had to seek medical attention from a local
medical center the day after the incident and was diagnosed
with multiple contusions and a displaced hip from the impact
of the vehicle. To rebut Montgomery's testimony, the
State called as a witness the booking deputy who processed
Montgomery the night he was arrested. Montgomery objected and
requested that the district court exclude the witness's
testimony as a discovery sanction because the State did not
disclose him as a potential witness as required by Idaho
Criminal Rule 16(b)(6). The district court overruled
Montgomery's objection, and the booking deputy was
allowed to testify that Montgomery told him in response to
standard intake questioning that he was in good health and
did not have any injuries.
also testified at trial, to the best of his knowledge, that
all five bullets he fired at the vehicle were recovered. He
based his knowledge on the police reports. The State called
an investigating officer to rebut this testimony. Montgomery
objected to this testimony on the same grounds he raised for
the booking deputy. The district court overruled the
objection, and the investigating officer was allowed to
testify that he examined the Jeep's flat tire and found
two holes and a significant dent in the rim, along with two
deformed slugs inside the tire. There is no dispute that
Montgomery received a copy of the investigating officer's
report as part of discovery, but the investigating
officer's name was not on the State's witness list
provided during discovery.
jury acquitted Montgomery of the aggravated assault charge,
but found him guilty of unlawfully discharging his firearm
into an occupied vehicle. Montgomery timely filed a notice of
appeal. Montgomery's appeal was initially heard by the
Idaho Court of Appeals, which upheld the conviction on the
ground that the district court acted consistently with the
applicable legal standards. Montgomery filed a petition for
review, which we granted.