State v. Flowers

391 Mont. 237

416 P.3d 180

2018 MT 96

STATE of Montana, Plaintiff and Appellee,

v.Patrick Terry FLOWERS, Defendant and Appellant.

DA 15-0701

Supreme Court of Montana.

Submitted on Briefs: February 14, 2018

Decided: April 24, 2018

For Appellant: Chad Wright, Appellate Defender, Moses Okeyo. Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Ryan Aikin, Assistant Attorney General, Helena, Montana, William E. Fulbright, Ravalli County Attorney, Hamilton, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶ 1 A Ravalli County jury convicted Patrick Terry Flowers of criminal possession of methamphetamine, criminal possession of marijuana, and two counts of criminal possession of drug paraphernalia after law enforcement found drugs and paraphernalia in his pickup truck during a traffic stop. Leslie Hill was the lone passenger in the vehicle at the time of the traffic stop. Flowers appeals his convictions, alleging that the District Court committed reversible error when it excluded evidence of Hill’s plea agreement and curtailed his cross-examination of Hill. Flowers also claims his attorney was ineffective because he failed to request a jury instruction on accomplice testimony. We agree with Flowers that he was improperly denied the opportunity to impeach Hill. We therefore remand the case for a new trial.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 2 During routine patrol near Stevensville, Montana, in December 2014, Deputy Jason Jones of the Ravalli County Sheriff’s Office stopped a pickup that had an expired registration. Flowers was driving the vehicle and Hill sat in the front passenger seat. Deputy Jones asked for Flowers’s driver’s license and other documentation. After checking for active warrants for both Flowers and Hill, Deputy Jones informed Flowers that he was issuing him a warning for the expired tags. He asked Flowers to exit his pickup to show him the expired registration tags on the vehicle.

¶ 3 Once Flowers exited the vehicle, Deputy Jones returned Flowers’s driver’s license and documentation and told Flowers that he was free to go, but asked for consent to search the vehicle. Flowers consented and signed a consent form. Hill remained alone in the cab of the pickup during this interaction, but eventually got out and stood by a law enforcement vehicle during the search. Trooper Rocky Bailey and Sergeant Jesse Jessop were present for backup during the search. Before the search began, Flowers asked to get a sweatshirt from the back seat of the pickup. As Flowers retrieved the sweatshirt, a glass pipe fell out of the pickup cab onto the ground.

¶ 4 Deputy Jones recognized the pipe as the type of pipe used to smoke methamphetamine and placed Flowers under arrest. Laboratory tests later confirmed that the pipe had methamphetamine residue on it. After giving Flowers a Miranda warning, Deputy Jones asked Flowers who owned the pipe. Flowers replied that he did not know. When Deputy Jones asked whether the pipe belonged to Hill, Flowers stated that he did not think so.

¶ 5 While searching the truck, Deputy Jones found a plastic box containing a marijuana pipe and a bag with 6.65 grams of marijuana under the driver’s seat. He also found a plastic container containing marijuana residue in the backseat. Hill consented to Deputy Jones’s request to search her purse. Inside, he found a small glass vial with a white powdery substance in it, which laboratory tests later confirmed as methamphetamine.

¶ 6 Deputy Jones, Trooper Bailey, and Sergeant Jessop all testified that Flowers did not appear to be intoxicated during the stop, but that Hill appeared to be under the influence of methamphetamine or another drug because she was twitching and had jerky movements. Both Flowers and Hill were charged with criminal possession of methamphetamine, criminal possession of marijuana, and two counts of criminal possession of drug paraphernalia.

¶ 7 At the time of the December 2014 traffic stop, Hill already was facing serious drug charges from an incident in August 2014, including two charges of criminal possession of dangerous drugs with intent to distribute and criminal possession of drug paraphernalia. Hill’s charges from the two incidents, along with the persistent felony offender ("PFO") status the State sought, carried a combined maximum penalty of 147 years of incarceration. Before Flowers’s trial, Hill reached a plea agreement with the State to resolve all of her pending charges. The State agreed to amend her August 2014 charges to two charges of criminal possession of dangerous drugs and to dismiss the notice of intent to seek PFO status. Hill pleaded guilty to the two amended charges and to all the charges arising from the December 2014 traffic stop with Flowers. The State agreed to recommend that the court sentence Hill to five years for the August charges and an additional two years suspended for the December charges. The agreement provided that the trial court was not bound by the sentencing recommendation. The agreement did not require Hill to testify against Flowers. At the time of the trial, Hill was awaiting sentencing.

¶ 8 In its pretrial filings, the State notified Flowers that it intended to call Hill to testify against Flowers. In response, Flowers filed a pretrial notice that he intended to use evidence subject to M. R. Evid. 404(b), namely evidence of Hill’s prior drug charges. He stated that he was not introducing the evidence to prove character, but "to prove motive, intent, opportunity, absence of mistake or accident, and the identity of the possessor of the contraband discovered in Mr. Flower’s [sic] vehicle." He also filed a motion to take judicial notice of the charges against Hill and her subsequent guilty pleas. The State argued that if the court permitted Flowers to introduce evidence of the charges already pending against Hill at the time of the traffic stop, then the State should be permitted to address the Partner or Family Member Assault convictions for which Flowers was awaiting sentencing at the time of the traffic stop to give the jury the full context of Flowers’s motivation, opportunity, or lack of accident that night. The District Court excluded all evidence pertaining to Hill’s prior charges, stating, "I’m not really inclined to extensively get into the history of either party. I’d like to keep the focus on what occurred on the day of this arrest." The court permitted Flowers to cross-examine Hill about the portions of her plea agreement dealing with the December 2014 charges, but excluded all other questioning, and the plea agreement itself, under M. R. Evid. 404(b).

¶ 9 Hill testified that she and Flowers had been at a friend’s house watching football earlier that evening and that Flowers was giving her a ride home. She testified that she was not under the influence of drugs or alcohol that night and that the drugs found in Flowers’s pickup belonged to Flowers. She testified that she pleaded guilty to the charges arising from the December 2014 traffic stop because she knew that the drugs were in the pickup. When asked whether the State had given her favorable treatment in her plea agreement, she replied, "If you call seven years favorable treatment." When Flowers asked her whether the State had amended charges against her as part of her plea agreement, the District Court sustained the prosecutor’s Rule 404(b) objection, ending that line of questioning.

¶ 10 The jury found Flowers guilty of all charges. The District Court sentenced him to ten years with five suspended.

STANDARDS OF REVIEW

¶ 11 We review evidentiary rulings—including a district court’s ruling regarding the admissibility of evidence of other crimes, wrongs, or acts—for abuse of discretion. State v. Crider , 2014 MT 139, ¶ 14, 375 Mont. 187, 328 P.3d 612.

¶ 12 We exercise plenary review over issues of constitutional law. State v. Daniels , 2011 MT 278, ¶ 11, 362 Mont. 426, 265 P.3d 623. But we typically do not address issues raised for the first time on appeal, except in a narrow class of cases suitable for plain-error review.

State v. Ritesman , 2018 MT 55, ¶ 12, 390 Mont. 399, 414 P.3d 261.

¶ 13 Claims of ineffective assistance of counsel present mixed questions of law and fact that this Court reviews de novo. State v. Root , 2015 MT 310, ¶ 8, 381 Mont. 314, 359 P.3d 1088.

DISCUSSION

¶ 14 1. Whether the District Court abused its discretion by excluding evidence of Hill’s plea agreement.

¶ 15 Flowers argues that the District Court abused its discretion when it excluded evidence of Hill’s plea agreement and prior drug charges under M. R. Evid. 404(b) and prevented Flowers from fully cross-examining Hill about her plea agreement. He argues that he was not relying on the evidence to show Hill’s criminal disposition, but rather to demonstrate Hill’s motive to testify falsely, to show the identity of the owner of the contraband, and to impeach Hill’s testimony that she did not receive a favorable deal from the State. He argues that these uses are permissible under M. R. Evid. 404(b). Alternatively, Flowers argues that this Court should exercise plain-error review, because—although he did not object on this ground—the exclusion of the evidence prevented him from defending himself and violated his Confrontation Clause rights under the federal and state constitutions.

¶ 16 The State counters that the District Court did not abuse its discretion when it excluded evidence of Hill’s prior drug charges under M. R. Evid. 404(b) ; the evidence easily could be used to imply that Hill possessed the drugs at issue here due to her criminal propensity. The State argues that Flowers did not articulate a chain of inferences before the District Court that established how this evidence was relevant for a permissible purpose and that Flowers therefore failed to preserve this argument for appeal. Further, the State argues that the evidence properly was excluded under M. R. Evid. 403, because getting into the...