No. 91

-253 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 1991 

# F Plaintiff and Appellant, 

# '8 STATE OF MONTANA,

-vsMARY KELLY YARNS, r~ili(n CFSilPREMECOURT STATEOF MONTANA Defendant and Respondent.

APPEAL FROM: DistrictCourt of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD: ForAppellant: 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.

Filed: Submitted on Briefs: September 19, 1991 Decided: February 12, 1992Justice 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 theJusticeCourt,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 milesnorthwest of West Yellowstone,Montana and fivemiles 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 themorning of March 13, thehunters met with several game wardens and other persons including a biologist, a researcher,
2three State veterinarians, a national park ranger, and members of the news media. The group 

### then traveled 

### on snowmobiles to the Horse Butte areawhere thebuffalo had lastbeen seen. Thebuffalo
were gone when the group arrived. Several State officials then searched for the buffalo, which were found being herded toward YellowstoneNational Parkby a group of elevenmen 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 theblood from thebuffalo down themiddle 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 complaintwas supported by an affidavit of probable cause and alleged that on March 13, 1990, the defendant had purposely or knowinglymade physical contactof an insulting orprovokingnature with Hal Slemmer when she wiped Mr. Slemmer's face with the blood from a buffalo. The defendant was arrested on July 7, 1990.

3Trial in Justice Courtwas 

### 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 locationand her intentat the time shecommitted 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

4State'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 AssociationProjecton Standards forCriminalJusticeinconcluding 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 appellatecourt,reviewingtheJusticeCourt'sorder,and remanding the case for trial. 

### It asserts that the proper procedure in this
case was a trial de novo 

### in the District Court. ArticleVII, Section 4(2) of theMontana Constitutionprovides that the district court "[slhall hear appeals from inferior courts
as trials anew unless otherwise provided by law." Section 46-17-

5311,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 courtwaives right to trial de novo in district court], all cases on appeal from justices' or city courtsmust 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 casesprovided 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, 741P.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 froma justice courtorder,enteredpretrial,suppressing evidence. As in thepresent case, the State in Kesler appealed to the district court fromapretrial suppressionorder of the justice court. The defendant moved to affirm the suppression order and

6dismiss 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, isto requirea trial
__~ de novo on all appeals from justice court. Section 46-17-311(2), MCA, as amended,now permits the Stateto appeal justice court ordersand judgments in certain circumstances. The clear intent of Section 46- 17-311(1), MCA, istorequirea trial denovo indistrict courton 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 thereforenot 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 ofwhether the district court's granting of the defendant'spretrial 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 fromRogers 

### v. United

7States (D.C. Cal. 1958), 158F.Supp. 670,

### we stated that "suppress"
means "to effectively prevent from using" and upheld the State's right to appeal from anypretrial orderwhich effectivelyprevents 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 sustainingan 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 thepresent casewhere the orderwas entered and appealed pretrial and the juryhad notyetbeen impaneled and sworn. Aswe stated in 

### T.W.: 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 theFifthAmendment to theUnited StatesConstitutionand 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 isnodouble 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 JusticeCourt's orderwas an order suppressing evidencewithin the meaning of § 46-20-103(2)(e), MCA (1989). However, while the
8District 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 DistrictCourt reliedupon 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 for Criminal Justice "recommends that the prosecution should not be permitted to appeal from pretrial 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 conditionupon the State's right to appeal. It further argues that the District Court's imposition of this condition,

## sua sponte and



### - ex 

### &facto, exceeded its authority and deprived the State of its 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 interlocutoryappealsby theState to situations where evidencewas suppressed because itwas obtained inviolation of a defendant's constitutional rights. We did not hold in 

### T.W. that the State's right to appealwas conditioned upon a showing or certificationof the effect of the suppressionorder on the State's

9case. 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 legislaturehasnot limited the State'sright 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 Statemay appeal from an^ court order the substantive effect ofwhich 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 constitutionalimpediments. Absent suchcircumstances,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 casewas a trial de novo by the District Court. The defendantpresents two additional arguments in support of

10the District Court's order which

### we will address briefly. First, the defendant argues that hermotion to dismisswas "effectivelya 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 lacksmerit. Title 46, MCA, governs theprocedure in the courts of Montana in all criminal proceedings except as otherwise specifically provided by law. Section 46-1-101, MCA (1989), repealed (recodifiedas 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 ofappeal sincedouble jeopardyconsiderationswouldpreclude 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

11directed 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 JusticeCourt, theDistrict Court cited § 46

-8

-201,MCA (1989),as authority for ordering theMontana 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

12to the county in which the proceeding arose, the Department of Commerce, orboth,asprovided 

### 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 departmentpersonnel. Accordingly,

### wehold that the DistrictCourt erred in ordering the Department of Fish,Wildlife and Parks topay the fees of appointed defense counsel. Reversed and remanded to the DistrictCourt for trial de novo.

We concur:

Chief Justi

13Justice Terry N. Trieweiler dissenting. I dissent from the opinion of the majority. The majority decision repeatedly refers to the District Court's obligationpursuant to statuteand theMontana 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 todeterminewhether therewas aproper 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 onlypart 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 informationwhich is offered but isneither 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 thedefendant's conduct,

14granted the defendant's motion 

### inlimine 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. As 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. (Peoplev. 

### 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 evidenceand the exclusionof evidence. Thisdistinction is not merely semantic. Rule 604 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 appealableunder 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 suppressionorders,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. hfccolhs, 468 N.E.2d at 197-98. The effect of themajority'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

16under 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

### OFSERVICE Iherebycertifythatthefollowingorderwas

### sentbyUnited Statesmail,prepaid,tothe followingnamed:

A.MichaelSalvagni,County Attorney GaryBalaz,Deputy 615

### S. 16thAve.,Rm. 

### 100 Bozeman,MT 59715 MarcelleC.Quist QUISTLAW

### OFFICE 1805LandmarkCenter Building2,

### Suite 1A Bozeman,MT 59715 EDSMITH CLERKOFTHESUPREME COURT STATE-OFMONTANA