No. 91-253
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Appellant,
F
'8
-vs-
MARY KELLY YARNS,
Defendant and Respondent. r ~ i l i ( n SilPREME COURT
CF
STATE OF MONTANA
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Marc Racicot, Attorney General, Helena, Montana;
John Paulson, Assistant Attorney General, Helena,
Montana; Mike Salvaqni, County Attorney, Bozeman,
Montana : Gary Balaz, Deputy County Attorney,
Bozeman, Montana.
For Respondent:
Marcelle C. Quist; Bolinqer & Quist, Bozeman,
Montana.
Submitted on Briefs: September 19, 1991
Decided: February 12, 1992
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
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,
2
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 5 45-5-201(1)(~), 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.
3
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, 5 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 & 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
4
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.
I
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 "[slhall hear appeals from inferior courts
as trials anew unless otherwise provided by law." Section 46-17-
5
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 5 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, 7 4 1 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. A s 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
6
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 5 46-17-311, MCA, is to require a trial
_ novo on all appeals from justice court.
de _ ~
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 (Ill. App. Ct.
1984), 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 § 46-20-103(2) (e), MCA. Quoting from Rogers v. United
7
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 v.
Carney (1986), 219 Mont. 412, 714 P.2d 532. In Carnev, we held
that a midtrial ruling sustaining an objection to the admission of
evidence could not be appealed by the State under § 46-20-
103 (2) (e), MCA. However, Carnev is clearly distinguishable from
the present case where the order was entered and appealed pretrial
and the jury had not yet been impaneled and sworn. As we stated in
TW:
..
There is an important distinction between
interlocutory appeals on pre-trial rulings and those
taken in the course of the trial. Mid-trial appeals
place the defendant in double jeopardy in violation of
the Fifth Amendment to the United States Constitution and
Article 11, Section 5 of the Montana State Constitution
and are not appealable. State v. Carney (Mont. 1986),
1219 Mont. 413,] 714 P.2d 532, 43 St.Rep. 54. No
jeopardy attaches here, as the jury had not yet been
sworn. Crist v. Bretz (1978), 437 U.S. 28, 98 S.Ct.
2156, 57 L.Ed.2d 24. Because there is no double jeopardy
problem in this case the ruling is appealable.
T W ,220 Mont. at 287,
.. 715 P.2d at 432.
The District Court in the present case recognized that the
Justice Court's order was an order suppressing evidence within the
meaning of § 46-20-103(2)(e), MCA (1989). However, while the
8
District Court acknowledged the State's right to appeal, it
conditioned that right upon a showing that the suppression order
substantially impaired or seriously impeded the State's ability to
prosecute the case. The District Court relied upon State v. Newman
(Kan. 1984), 680 P.2d 257, and People v. Young (Ill. 1980), 412
N.E.2d 501, to arrive at its conclusion that the State is required
to make a showing of substantial impairment in order to appeal a
suppression ruling. It also stated that the American Bar
Association Project on Standards f o r Criminal Justice "recommends
that the prosecution should not be permitted to appeal from pre-
trial orders suppressing evidence unless 'the effect is to
seriously impede, although not completely foreclose, continuation
of the prosecution.'"
The State argues that this Court has not imposed such a
condition upon the State's right to appeal. It further argues that
the District Court's imposition of this condition, sua sponte and
- & facto, exceeded its authority and deprived the State of its
ex
statutory right to a trial de novo. We agree.
This Court in T W cited the Newman and Younq decisions in
..
rejecting a narrow interpretation of the appeals statute which
would have limited interlocutory appeals by the State to situations
where evidence was suppressed because it was obtained in violation
of a defendant's constitutional rights. We did not hold in T W
..
that the State's right to appeal was conditioned upon a showing or
certification of the effect of the suppression order on the State's
9
case.
The District Court's conditioning of the State's right to
appeal upon a showing that the suppression order substantially
impaired or seriously impeded the continuation of the prosecution
is contrary to the clear legislative intent of 5 46-17-311(1), MCA
(1989). As we stated in Kesler, the clear intent of that statute
is to require a trial de novo on all appeals from justice court; a
district court cannot assume appellate jurisdiction to review a
justice court order suppressing evidence. Kesler, 220 Mont. at
245-46, 741 P.2d at 793-94.
Moreover, the legislature has not limited the State's right to
appeal a justice court order suppressing evidence in the manner
imposed by the District Court. The plain language of § 46-20-
103(2)(e), MCA (1989), provides that the State may appeal from an^
court order the substantive effect of which results in suppressing
evidence. To allow a court to formulate a standard for
appealability of such an order would be to empower that court to
determine the State's right to appeal, in derogation of a clear
statutory right. Such a court action is necessary under
circumstances such as those we addressed in Carney involving
constitutional impediments. Absent such circumstances, however, it
is not the role of the courts to insert into a statute that which
has been omitted. Section 1-2-101, MCA. The proper procedure in
this case was a trial de novo by the District Court.
The defendant presents two additional arguments in support of
10
the District Court's order which we will address briefly. First,
the defendant argues that her motion to dismiss was "effectively a
motion for summary judgment" under the Montana Rules of Civil
Procedure and that the District Court's ruling was not appealable
"until appeal of the final judgment in this case is had." This
argument lacks merit. Title 46, MCA, governs the procedure in the
courts of Montana in all criminal proceedings except as otherwise
specifically provided by law. Section 46-1-101, MCA (1989),
repealed (recodified as 5 46-1-103, MCA (1991)). The scope of the
State's appeal is governed by 5 46-20-103, MCA (1989). The State
is not required to await final judgment in order to exercise its
right of appeal since double jeopardy considerations would preclude
any appeal by the State in the event of an acquittal, and the State
has no right to appeal following a conviction. See State v. Cool
(1977), 174 Mont. 99, 568 P.2d 567; State v. Armstrong (1980), 189
Mont. 407, 616 P.2d 341.
The defendant further argues that the Justice Court's ruling
on the admissibility of the videotape was a discretionary
evidentiary ruling which should not be overturned unless an abuse
of discretion is shown. Whether the Justice Court abused its
discretion is not at issue in this case. The District Court does
not have appellate jurisdiction to review the Justice Court's
ruling. Kesler, 228 Mont. 242, 741 P.2d 791.
We also note that, in its order dismissing the State's appeal
and remanding the case to the Justice Court, the District Court
11
directed that the time of appeal be charged to the State. It
appears from the record before us that the issue of allocation of
delay for speedy trial purposes was not raised in the motion to
dismiss or argued by the parties. In light of our holding in this
case, the District Court's allocation of delay to the State is
vacated.
We hold that the District Court erred in remanding the case to
the Justice Court for trial after the State had appealed from the
Justice Court's order suppressing evidence. We remand the case to
the District Court for trial de novo.
I1
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?
In its order dismissing the State's appeal and remanding the
case to the Justice Court, the District Court cited § 46-8-201, MCA
(1989), as authority for ordering the Montana Department of Fish,
Wildlife and Parks to pay the fees of appointed defense counsel.
The record does not support the court's order.
Section 46-8-201(2)(b), MCA (1989), provides that when there
has been an arrest by aqents of the Department of Fish, Wildlife
and Parks and the charge is brought and prosecuted by personnel of
that State agency, the expense of court-appointed defense counsel
must be borne by the agency; otherwise, the expense is chargeable
12
to the county in which the proceeding arose, the Department of
Commerce, or both, as provided in 5 3-5-901, MCA (1989). Here, the
complaint and warrant of arrest indicate that the defendant was
charged with misdemeanor assault and is being prosecuted by the
Gallatin County Attorney's office. Although officials of the
Department of Fish, Wildlife and Parks were at the scene of the
incident, the record does not show any further involvement by
department personnel. Accordingly, we hold that the District Court
erred in ordering the Department of Fish, Wildlife and Parks to pay
the fees of appointed defense counsel.
Reversed and remanded to the District Court for trial de novo.
We concur:
Chief Justi
13
Justice Terry N. Trieweiler dissenting.
I dissent from the opinion of the majority.
The majority decision repeatedly refers to the District
Court's obligation pursuant to statute and the Montana Constitution
to hear appeals from Justice Court denovo. However, before the
District Court has an obligation to try appeals from the Justice
Court denovo, it has a right to determine whether there was a proper
statutory basis for appeal in the first place. In this case, I
disagree with the majority's conclusion that there was a proper
basis for appeal.
Section 46-17-311(2), MCA, provides in relevant part that
"[tlhe prosecution may only appeal in the cases provided for in
46-20-103." The only part of 5 46-20-103, MCA, which is applicable
to this case is subsection (2) (e) which allows for an appeal by the
State from an order which results in "suppressing evidence.''
In my opinion, there is a significant difference between the
"suppression of evidence" and an evidentiary ruling which excludes
material or information which is offered but is neither relevant to
nor probative of the issues in the case.
In this case, on the day the trial was scheduled to begin in
Justice Court, with the Justice Court ready to begin and the jury
panel standing by, the prosecutor filed a pretrial motion seeking
permission to play a video tape of a protest over Montana's bison
hunt. The Justice of the Peace ruled that the defendant's conduct,
14
granted the defendant's motion in limine was to suppress
evidence. If not, then the order does not become
appealable simply because the State certified that its
ability to prosecute is substantially impaired.
A s the Illinois Supreme Court has recognized,
defining that which constitutes an order of suppression
and determining whether a trial court's ruling falls
within that definition is a difficult task. (People v.
Young (1980), 82 I11.2d 234, 45 I11.Dec. 150, 412 N.E.2d
501.) In the context of Supreme Court Rule 604(a)(1), a
distinction must be made between the suppression of
evidence and the exclusion of evidence. This distinction
is not merely semantic. Rule 6 0 4 was not intended to
give the State the right to appeal from every ruling
excluding evidence offered by the State. (People v.
VanDeRostyne (1976), 63 I11.2d 364, 368, 349 N.E.2d 16,
19.) It is suppression orders, as distinguished from
evidentiary rulings, that are appealable under the rule.
Peoplev. Flatt (1980), 82 I11.2d 250, 258, 45 I11.Dec. 158,
162, 412 N.E.2d 509, 513.
....
. . . As
stated above, it is suppression orders, not
evidentiary rulings, that are appealable under the rule.
We find that the trial court's order which granted the
defendant's motion inlimine is not a suppression order as
that term is used in Supreme Court Rule 604 (a)(1) and,
therefore, is not appealable.
h f c c o l h s , 468 N.E.2d at 197-98.
The effect of the majority's decision is to provide the State
with the option of divesting justice courts of jurisdiction to try
misdemeanor cases whenever the State chooses to do so. I do not
believe that was the result intended by the legislature, and
therefore, believe that the decision of the Illinois court is the
better reasoned approach to defining the scope of appeal intended
16
under 5 46-20-103, MCA. I would affirm the District Court's
dismissal of the State's appeal.
I concur in the foregoing dissent of Justice Trieweiler.
/
Justice --
17
February 12, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
A. Michael Salvagni, County Attorney
Gary Balaz, Deputy
615 S. 16th Ave., Rm. 100
Bozeman, MT 59715
Marcelle C. Quist
QUIST LAW OFFICE
1805 Landmark Center
Building 2, Suite 1A
Bozeman, MT 59715
ED SMITH
CLERK OF THE SUPREME COURT
STATE -OF MONTANA