State v. Rossbach

417 Mont. 287

STATE OF MONTANA, Plaintiff and Appellee,

v.PRESTON CSOO ROSSBACH, Defendant and Appellant.

No. DA 20-0604.

Submitted on Briefs April 17, 2024.

Decided July 30, 2024.

2024 MT 157.

417 Mont. 287.

__ P.3d __.

Appeal from the District Court of Missoula County.

Fourth Judicial District Court, Cause No. DC 18-645.

Honorable Leslie Halligan, Judge.

The district court did not err when it denied defendant’s challenge for cause of a prospective juror. The district court had the ability to look into the eyes of the juror in question, and to consider his responses in the context of the courtroom; the district court did not violate defendant’s right to confront witnesses when it limited the scope of his cross-examination of jailhouse informants. The record demonstrated that defendant was afforded an effective opportunity for cross- examination within constitutional bounds; the State presented sufficient evidence to convict defendant of deliberate homicide on a theory of felony murder; the district court did not err when it denied defendant’s motion for a new trial based on Brady violations. The district court’s determination that a new trial was not warranted on defendant’s claimed Brady violation was sound.

Affirmed.

For Appellant: Chad Wright, Appellate Defender, Kristina L. Neal, Assistant Appellate Defender, Helena.

For Appellee: Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena; Kirsten Pabst, Missoula County Attorney, Mat Jennings, Deputy County Attorney, Missoula.

JUSTICE BAKER delivered the Opinion of the Court.

¶1 A Missoula County jury convicted Preston Csoo Rossbach of assault with a weapon, tampering with evidence, two counts of intimidation, and two counts of deliberate homicide. He appeals, claiming that the Fourth Judicial District Court erred when it denied his motion for acquittal or, in the alternative, for a new trial. We consider the following issues on appeal:

1. Whether the District Court erred when it denied Rossbach’s challenge for cause of Prospective Juror C.S.?

2. Whether the District Court violated Rossbach’s fundamental right to confront witnesses when it limited the scope of his cross- examination of jailhouse informants?

3. Whether the State presented evidence sufficient to convict Rossbach of deliberate homicide on a theory of felony murder?

4. Whether the District Court erred when it denied Rossbach’s motion for a new trial based on Brady violations?

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Law enforcement officers and emergency medical personnel responded to a downtown Missoula motel room in October of 2018 following a report of a possible assault. At the scene, they discovered Kaleb Williams injured on a bed and both Megan McLaughlin and Jason Flink deceased. All three of the room occupants had been shot; Flink and Williams also suffered cut and puncture wounds. Trial evidence established the sequence of events.

¶3 On the evening of October 18, 2018, Rossbach, Jonathan Whitworth, and Ty Butler drove a work truck away from a stone cabin they lived in near Lolo, stopped at a restaurant, then drove on to Missoula. Whitworth made arrangements that evening with Josiah Senecal to buy methamphetamine from Senecal and LaBenza Charlo, Senecal’s girlfriend, who "middled" (arranged) drug deals between buyers and dealers. When the men in the vehicle arrived at the residence where Senecal and Charlo lived, Senecal went out to the truck to deliver the drugs to Whitworth. At the behest of at least Whitworth, Senecal went back inside the residence at least two times to talk Charlo into coming out and getting into the truck with the men, which she eventually did. Whitworth told Senecal and Charlo that the drugs they had previously middled for him from Raven Lamere had been "bad" and had put Rossbach’s brother in the hospital. Charlo agreed to go with Whitworth and the other men to the downtown motel where Lamere was staying. Although she personally did not have a specific plan in mind, Charlo wanted to talk to Lamere to "make it right."

¶4 Charlo testified that on the drive to the motel, Whitworth seemed as if he had "a problem" and that "something was not right." Whitworth appeared hostile, angry, and upset and acted "crazy" and "threatening." Charlo felt uncomfortable as Whitworth played a rap song on his phone and sang along to the lyrics, which talked about "riding for your clique … don’t snitch."¹

¶5 At approximately 12:45 a.m. on October 19, 2018, the truck arrived at the motel and parked in the alley. The occupants of the truck discussed who would go upstairs to Lamere’s room; it was determined that Charlo, not Senecal, would accompany Rossbach and Whitworth. A few minutes later, Rossbach, Whitworth, and Charlo made their way to Lamere’s room. Whitworth carried a gun. McLaughlin opened the door and let them into the room where Flink was present, along with Williams, who was sleeping on the bed. Charlo testified she knew McLaughlin as a friend of Lamere. Lamere was not there but had left to go to the store. Charlo asked McLaughlin and Flink if they had meth and was told they did not but were waiting for Lamere to return. Rossbach, Whitworth, and Charlo left the room and the door closed behind them, but they remained in the hallway.

¶6 Less than two minutes later, Whitworth told Charlo to knock on the door again. When asked at trial if she had thought a robbery might occur, Charlo testified, "[M]aybe a little bit, but I didn’t think they were gonna kill them."

¶7 McLaughlin opened the door a second time and Rossbach, Whitworth, and Charlo followed her into the room again. After McLaughlin sat down, Charlo asked McLaughlin and Flink if either of them had personal-use meth. Both again denied having meth, but Flink offered his dab pen. Either Whitworth or Rossbach responded with a profanity. Whitworth pulled out the gun and shot several times at McLaughlin, Flink, and Williams. Charlo ducked and ran, crouched near the door, closed her eyes and covered her ears, unaware of Rossbach’s actions. An informant for the State would later testify that Rossbach told him that Rossbach directed Whitworth to shoot.

¶8 After the shooting, Whitworth ran by Charlo, telling her, "Let’s go." An object that Charlo did not identify dropped on the floor and Whitworth told her to pick it up, then to leave it. Charlo and Whitworth ran out of the room and Rossbach exited the room several seconds later, carrying an object in his hand. Soon thereafter the truck carrying Rossbach, Whitworth, Charlo, Senecal, and Butler pulled away from the motel.

¶9 On the way back to the residence where Charlo and Senecal lived, Rossbach and Whitworth talked. Charlo heard Rossbach say, "No witnesses" as he discussed with Whitworth whether they should kill Charlo and Senecal. At the residence, the truck occupants stayed in the vehicle for a few moments. Rossbach displayed his "O4L" (Outlaws for Life) arm tattoo and Whitworth stated, "You earned that shit, Bro." Rossbach pressed his seatback into Charlo’s legs and put a knife into her and Senecal’s faces, telling them that they "didn’t see anything." Senecal asked what was going on and Rossbach told him to shut up. Whitworth asked Senecal if he knew what they did in the motel room; Senecal testified that at that time he had a good idea of what had happened but denied it when responding to Whitworth. Senecal told Whitworth that he and Rossbach were scaring Charlo; Whitworth nodded at Rossbach, who pulled the seatback up off Charlo’s legs.

¶10 Whitworth then told Senecal to stay in the truck with Rossbach and Butler. He accompanied Charlo inside the residence, stating that he had to use the bathroom. Charlo testified that once inside, Whitworth did not use the bathroom, but "scoped" out the residence, leading her to believe he might shoot her, but that he left when he saw others in the home.

¶11 Law enforcement later arrived at the Lolo cabin, and eventually questioned Rossbach, Whitworth, Butler, and several other people staying at the cabin. Law enforcement found Rossbach’s and Whitworth’s clothing and a knife in a sheath hidden on the Lolo property; Whitworth’s gun was never found. Rossbach was later arrested and charged with multiple offenses related to the night’s events.

¶12 In early March of 2020, Rossbach was tried by a jury on the State’s amended Information. During voir dire, the prosecutor and defense counsel discussed with the prospective jurors their thoughts on witness testimony when a witness had been provided an incentive to testify. Defense counsel moved to remove Prospective Juror C.S. (C.S.) for cause based on his responses. The District Court denied the motion. Defense counsel subsequently used one of the defense’s six peremptory challenges to remove C.S., and the defense eventually exhausted its remaining peremptory challenges.

¶13 During the trial, the jury heard testimony from multiple witnesses, including Butler, Senecal, and Charlo, who provided her testimony under an immunity agreement with the State. Williams testified about waking up in the motel room bleeding and in pain and seeing a person with "bushy hair" standing at the foot of his bed.

¶14 Law enforcement witnesses testified to the drug paraphernalia, purses, and credit cards found in the motel room after the incident. Flink’s mother testified that a watch that Flink "always" wore, including on the night of the killings, had not been found after he was killed.

¶15 Forensics experts testified regarding security camera video footage, blood and DNA evidence from the motel room, and blood and DNA evidence from Rossbach’s and Whitworth’s clothing and the knife and sheath.

¶16 Two witnesses incarcerated in detention facilities with Rossbach after he was charged also testified; on the last day of the trial, the prosecutor disclosed to defense counsel and the District Court a letter written by one of the informants related to another unrelated criminal...