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

WILLIAM JOSEPH HOPPER,

Petitioner,

v. OP 21-0167



# F
APR 1 

## 3 2021

Bowen Greenwood r'.Ierk of Suprerne Cow Stat,=, nf



### MONTANA FOURTH JUDICIAL DISTRICT COURT,MISSOULA COUNTY, HON.JOHN W.LARSON,presiding,

Respondent. ORDER

Petitioner William Joseph Hopper,via counsel,seeks a writ ofsupervisory control vacating an Order of the Fourth Judicial District Court, Missoula County, denying Hopper's motion to compel witness interviews or depositions in Cause No.ADC-20-265. Hopper maintains that the court erred in denying his motion to compelbecause he will be forced to go to trial without being able to complete necessary discovery. He further requests that the District Court matter be stayed pending the resolution ofthis petition. Trial is set for Monday,April 19,2021,and thus the matter is time-sensitive. Supervisory control is an extraordinary remedy that is sometimes justified when urgency or emergency factors exist making the normal appeal process inadequate, when the case involves purely legal questions, and when the other court is proceeding under a mistake of law and is causing a gross injustice, constitutional issues of state-wide importance are involved, or, in a criminal case, the other court has granted or denied a motion to substitute a judge. M. R. App. P. 14(3). Whether supervisory control is appropriate is a case-by-case decision.Stokes v. Mont. Thirteenth JudicialDist. Ct., 2011 MT 182, 5,361 Mont.279,259P.3d 754(citations omitted). Havingreviewed Hopper's petition and exhibits,we have determined to summarily deny the petition for the reasons set forth below. 04/13/2021

Case Number: OP 21-0167Hopper explains that he is facing a charge ofsexual intercourse without consent.

As part of discovery, his counsel sought to interview the alleged victim, C.W., but the prosecutor informed Hopper's counsel that C.W. declined to be interviewed. The prosecutor later rebuffed defense counsel's renewed request ofan interview and allegedly refiised to provide certain "background materials" about C.W.that defense counsel also requested. Hopper, via counsel, then moved the District Court to compel C.W. to either participate in an interview or to sit for a deposition. Hopper argued that he was entitled to interview all witnesses who would testify againsthim under §46-15-322(5),MCA,which provides: Upon motion showing that the defendant 

## has substantial need in the preparation ofthe case for additional material or information not otherwise provided for and that the defendant is unable, without undue hardship, to obtain the substantial equivalent by other means,the court,in its discretion, may order any person to make it available to the defendant.The court may, upon the request ofany person affected by the order,vacate or modify the order if compliance would be unreasonable or oppressive. The prosecutor may not be required to prepare or disclose summaries of witnesses' testimony. Hopper further asserted that under § 46-15-201(1)(c), MCA,he had the right to depose a witness who refused to be interviewed. That statute provides in relevant part that a deposition may be taken if the prospective witness "is unwilling to provide relevant information to a requesting party and the witness's testimony is material and necessary in order to prevent a failure ofjustice." Hopper acknowledges that,recently, in Daenzer v. Mun. Ct., 2020 MT 140, 400 Mont. 179, 464 P.3d 996, this Court denied a deposition request in the same circumstances: [D]epositions in criminal cases are provided for by statute and are designed to protect a defendant's trial rights, not enhance pretrial discovery. Section 46-15-201,MCA,

provides thatthe trial court "mar order the deposition of a material witness who is unwilling to provide relevant information to prevent a "failure ofjustice." The statute is clearly discretionary and, as Austad and the Commission Comments make clear, does not create a statutory or constitutional right for defendants to routinely depose State's 2witnesses. Daenzer knowsPeabody is the alleged victim and will bepresent

at trial to testify and be cross-examined. Daenzer has the police reports concerning the incident. The limited purpose of the statutes, which are designed to protect a defendant's fundamental trial rights, do not allow a defendant an enhanced discovery tool to gather more information for his defense. Daenzer,¶ 8. (Citing State v.Austad, 197 Mont.70,641 P.2d 1373 (1982).) Hopper argued the District Court should grant his motion to compel because his counsel wished to ask C.W.questions beyond those she was asked by the State within its interviews. Heargued the State's questionsweredesigned to elicit information aboutC.W.

as an alleged crime victim,while Hopper wished to challenge C.W.'s version ofevents by delving into areas ofinquiry known to the defense. Hopper argued it was crucial that his counsel be allowed to obtain this discovery pretrial and that counsel could not properly prepare for trial ifshe was only able to learn this information during cross-examination at the trial itself. TheDistrictCourtdenied Hopper'smotion to compel. Relying onDaenzer,itruled that Hopper was not entitled to routinely depose the State's witnesses for the purpose of enhancingpretrial discovery. The courtfurtherruled thatunder existing caselaw,awitness cannot be forced to sit for an interview. Furthermore,it noted that Hopper "has access to police reports, medical reports, and recordings detailing witness statement?' and that Hopper had not demonstrated that any ofthe witnesses he sought to interview or depose would not be available for cross-examination at trial. Hopper now petitions this Courtfor writ ofsupervisory control. He maintains that urgency or emergency factors makethe normalappealprocess inadequate because,"in the event ofconviction,the record on appeal will display only the inescapably ill-challenged testimony of C.W.," and Hopper will be forever denied the opportunity to glean information from apretrial interview with C.W.that could be used attrial. Hopper further maintains thatthis matter presents apurely legal question and that it is appropriate for this Courtto take supervisory control because the District Court is proceeding under a mistake oflaw and causing a gross injusticeby denying his motion to compel. Hopper also alleges 3thatthis matter is appropriate for writ ofsupervisory control because a constitutional issue

ofstatewide importance is atissue: thatthe DistrictCourt's denial deprives Hopper ofdue process rights under the U.S. and Montana Constitutions, specifically, the meaningful opportunity to present a complete defense,the right to effective counsel, and the right to reciprocal discovery. Hopper contests the wording inDaenzerthat"pretrial interviews are not provided for by any statute or constitutional righe'as either dicta or incorrect, but, in any event,distinguishes his position from Daenzer,wherein wenoted that"Daenzer is not asserting a right to compel apretrial interview,"as he is doing here. Daenzer,¶ 7. As we firther explained in Daenzer,"Daenzer did not allege a violation ofthe discovery statutes

or that the City was behaving in bad faith, and we do not suggest what reliefwould have been appropriate had he done so." Daenzer,¶ 7. Hopper argues that this Court should revisit or clarify Daenzer, which he states changed over fifty years' routine treatment of witness interviews as an ordinary but importantfeature oftrialpreparation. Hoppermaintains thatDaenzer eliminated thethreat of court-ordered depositions as a tool to compel uncooperative witnesses to accede to interview requests, and, as a result, prosecutors no longer routinely facilitate defense interviews ofthe State's witnesses. He surmises that witnesses are no longer advised that consenting to an interview is preferable to a deposition, but rather are advised that they cannot be compelled to cooperate with discovery. We acknowledge that Hopper's request to interview the victim of the crime has constitutional implications bearing on his right to present a defense to the charge thatmust be considered either in conjunction with statutory discovery, or beyond the statutory process. In thatregard,we note that § 46-15-322(1),MCA,requires a prosecutor to make available "material and informatioe within the prosecutor's "possession or control," and that, under subsection (5), upon the defendant's showing of "substantial neer in the preparation ofthe defense of"additional material or information not otherwise provided for," the court, "in its discretion, may order any person to make it available to the defendant." Notable is the statute's repeated use of"material"and "informatioe that is in

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### the prosecutor's "possession or control," and the absence ofany reference to witnesses.

Indeed,the statute provides that a prosecutor "may not be required to prepare or disclose summaries ofwitnesses'testimony." (Emphasis added.) The constitutional implications present here do not alter the principle that defense requests to interview the victim,as with depositions,remain within the sound discretion of the trial judge conducting the trial. Daenzer, ¶ 8 (§ 46-15-201, MCA, "is clearly discretionary" and "does not create a statutory or constitutional right for defendants to routinely depose [the] State's witnesses."). Section 46-15-322(5), MCA,provides that "[t]he court, in its discretion, may order any person to make it available to the defendant. The court may,upon the request ofany person affected by the order,vacate or modify the order ifcompliance would be unreasonable or oppressive." (Emphasisadded.) Here the District Court considered Hopper's request,and reasoned thatHopper had been provided with "police reports, medical reports, and recordings detailing witness statements," including a recorded interview. The situation is identical to Daenzer, and must be considered routine. We cannot conclude the District Court abused its discretion in denying Hopper'srequest in consideration ofthe information already provided to ensure Hopper's constitutional rights are protected. Hopper will have a full opportunity to cross examine the victim at trial, and can make a record necessary to support his claim that the District Court's ruling was inadequate to protect his rights,allowing the issue to be raised

on appeal,ifany. Therefore, IT IS ORDERED that the petition for writ ofsupervisory control is DENIED and DISMISSED. The Clerk is directed to provide immediate notice of this Order to counsel for Petitioner, all counsel ofrecord in the Fourth Judicial District Court, Missoula County, Cause No.ADC-20-265,and the Honorable John W.Larson,presiding. DATED this i 3 day ofApril,2021.

ChiefJustice 5