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 of supervisory 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 compel because 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 of this 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 Judicial Dist. Ct., 2011

MT 182, 5, 361 Mont. 279, 259 P.3d 754 (citations omitted). Having reviewed 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 21-0167
Hopper explains that he is facing a charge of sexual 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 of an 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 against him under § 46-15-322(5), MCA, which

provides:

Upon motion showing that the defendant has substantial need in the

preparation of the 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 of any 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 of justice." 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 that the trial court "mar order the deposition of

a material witness who is unwilling to provide relevant information to

prevent a "failure of justice." 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

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witnesses. Daenzer knows Peabody is the alleged victim and will be present

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. He argued the State's questions were designed to elicit information about C.W.

as an alleged crime victim, while Hopper wished to challenge C.W.'s version of events by

delving into areas of inquiry 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 if she was only able to learn this information during cross-examination at

the trial itself.

The District Court denied Hopper's motion to compel. Relying on Daenzer, it ruled

that Hopper was not entitled to routinely depose the State's witnesses for the purpose of

enhancing pretrial discovery. The court further ruled that under existing caselaw, a witness

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 of the witnesses he sought to interview or depose

would not be available for cross-examination at trial.

Hopper now petitions this Court for writ of supervisory control. He maintains that

urgency or emergency factors make the normal appeal process inadequate because, "in the

event of conviction, 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 a pretrial interview with C.W. that could be used at trial. Hopper further

maintains that this matter presents a purely legal question and that it is appropriate for this

Court to take supervisory control because the District Court is proceeding under a mistake

of law and causing a gross injustice by denying his motion to compel. Hopper also alleges

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that this matter is appropriate for writ of supervisory control because a constitutional issue

of statewide importance is at issue: that the District Court's denial deprives Hopper of due

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 in Daenzer that "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 we noted that "Daenzer is not

asserting a right to compel a pretrial interview," as he is doing here. Daenzer, ¶ 7. As we

firther explained in Daenzer, "Daenzer did not allege a violation of the discovery statutes

or that the City was behaving in bad faith, and we do not suggest what relief would 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

important feature of trial preparation. Hopper maintains that Daenzer eliminated the threat

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 of the 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 that must

be considered either in conjunction with statutory discovery, or beyond the statutory

process. In that regard, 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 of the 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 of any reference to witnesses.

Indeed, the statute provides that a prosecutor "may not be required to prepare or disclose

summaries of witnesses' 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 of any person affected by the order, vacate or modify the

order if compliance would be unreasonable or oppressive." (Emphasis added.)

Here the District Court considered Hopper's request, and reasoned that Hopper 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's request in consideration of the 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, if any. Therefore,

IT IS ORDERED that the petition for writ of supervisory control is DENIED and

DISMISSED.

The Clerk is directed to provide immediate notice of this Order to counsel for

Petitioner, all counsel of record in the Fourth Judicial District Court, Missoula County,

Cause No. ADC-20-265, and the Honorable John W. Larson, presiding.

DATED this i 3day of April, 2021.

Chief Justice

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