City of Missoula v. Hitshew

370 Mont. 552

311 P.3d 443

CITY OF MISSOULA, Plaintiff and Appellee,

v.Bret A. HITSHEW, Defendant and Appellant.

No. DA 12–0447.

Supreme Court of Montana.

Submitted on Briefs April 10, 2013.

Decided April 30, 2013.

APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC–12–100 Honorable Karen S. Townsend, Presiding Judge.

For Appellant: Wade Zolynski, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Jim Nugent, Missoula City Attorney, Gary L. Henricks, Assistant City Attorney, Missoula, Montana.

Justice LAURIE McKINNON delivered the Opinion of the Court.

¶ 1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶ 2 On May 18, 2011, Bret Hitshew and his girlfriend, Cheryl Westerland, were eating lunch at Taco Treat, located inside the Nickle Ante Casino in Missoula, when Hitshew's former girlfriend appeared and confronted them. Hitshew and Westerland decided to leave, but first stopped to cash out with the casino attendant. As they did, Hitshew's ex-girlfriend began screaming obscenities at Westerland. Hitshew and Westerland left and got into a 1988 Oldsmobile Delta 88 owned by Hitshew's mother, with Hitshew driving. The ex-girlfriend followed in her car and eventually rammed the Oldsmobile. Officers with the Missoula City Police Department responded to the scene. Upon determining that Hitshew's driver's license was suspended or revoked, one of the officers cited him with violating § 61–5–212, MCA.

¶ 3 Hitshew appeared in Missoula Municipal Court on June 20, pleaded not guilty, and requested a public defender. Brian Yowell was appointed. Yowell and the Missoula City Attorney signed an Omnibus Hearing Memorandum on September 26. Among other things, the form expressly indicates that the defendant will not be asserting an affirmative defense. On October 25, the Municipal Court set a bench trial for December 14 at 9:00 a.m.

¶ 4 On December 13, Yowell realized that he had commitments in district court which conflicted with the time set for Hitshew's trial in the Municipal Court. As a result, the Public Defender's Office reassigned Hitshew's case to Kelly Henkel at approximately 3:45 p.m. on December 13. After being assigned the case, Henkel met with Hitshew, became aware of a possible compulsion defense, and learned of two possible witnesses.

¶ 5 The next morning, Henkel appeared with Hitshew in the Municipal Court and moved for a continuance so that Yowell could represent Hitshew at trial. She explained the timing of her appointment, the shortcomings of her trial preparation, Hitshew's willingness to have any delay attributed to him for speedy trial purposes, and his desire to raise a compulsion defense (namely, that he had driven while his license was suspended in order to avoid being assaulted by his ex-girlfriend). Henkel acknowledged that she could proceed with the trial that morning, but she asserted that she did not believe it would be in Hitshew's best interests for her to do so. The City opposed the continuance because Hitshew had not given proper notice of an affirmative defense. Moreover, the City had its witnesses (the two City police officers) present, and they were on overtime. The City indicated that it was prepared to proceed.

¶ 6 The Municipal Court denied the requested continuance, but stated that it would allow Hitshew to present his compulsion defense. The City presented the testimony of the two police officers. Thereafter, Hitshew presented the testimony of a witness Henkel had located, who stated that she heard yelling and saw a woman push Hitshew in the back before he and Westerland left the casino. Hitshew also testified in his own defense. But at no point did he state that he believed he might suffer death or serious bodily harm if he did not drive away from the casino. See§ 45–2–212, MCA. Nor did he testify...