                                                                                            06/03/2020


                                          OP 20-0209
                                                                                        Case Number: OP 20-0209

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2020 MT 140


CARL JAMES DAENZER,

               Petitioner,

         v.

MUNICIPAL COURT OF THE CITY OF MISSOULA,
MISSOULA COUNTY, and THE HONORABLE
KATHLEEN JENKS, Municipal Court Judge,

               Respondent.


ORIGINAL PROCEEDING:                 Petition for Writ of Supervisory Control
                                     In and For the County of Missoula
                                     Cause No. TK-620-2019-8570
                                     Honorable Kathleen Jenks, Presiding

COUNSEL OF RECORD:

                For Petitioner:

                       Lance P. Jasper, Erik M. Anderson, Reep Bell & Jasper, P.C., Missoula,
                       Montana

                For Respondent:

                       Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                       Attorney General, Helena, Montana


                                                   Submitted on Briefs: May 22, 2020

                                                               Decided: June 2, 2020


Filed:

                                  cir-641.—if
                       __________________________________________
                                         Clerk
Justice Laurie McKinnon delivered the Opinion and Order of the Court.

¶1     Pursuant to M. R. App. P. 14(3)(a), Petitioner Carl James Daenzer (Daenzer) seeks

a writ of supervisory control. Daenzer asserts the Municipal Court of the City of Missoula

is proceeding under a mistake of law because it denied Daenzer’s motion to depose a

material witness in the underlying criminal matter against him.

¶2     Daenzer was charged with partner family member assault of his girlfriend,

Jennalea Peabody (Peabody); criminal destruction of or tampering with a communication

device, Peabody’s cell phone; and disorderly conduct. Daenzer’s counsel informed the

prosecutor that he wanted a pretrial interview of Peabody. In response, the prosecutor

informed defense counsel that Peabody did not wish to participate in an interview.

¶3     Daenzer filed a motion in Municipal Court arguing that he needed Peabody’s

deposition to prepare his defense. Daenzer requested the Municipal Court enter an order

allowing him to depose Peabody pursuant to § 46-15-201(1)(c), MCA. The City responded

that Peabody would be available at trial for cross-examination and therefore Daenzer had

no right to compel her pretrial deposition. The Municipal Court denied Daenzer’s motion

concluding that the lack of a witness interview did not result in a “failure of justice” under

§ 46-15-201(1)(c), MCA. Daenzer then filed his petition for writ in this Court. In

compliance with this Court’s Order of April 15, 2020, the State filed its Response to

Daenzer’s petition.

¶4     This Court has supervisory control over all other courts in Montana, and may, on a

case-by-case basis, supervise another court through a writ of supervisory control.

Mont. Const. art. VII, § 2(2); M. R. App. P. 14(3). Supervisory control is an extraordinary

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remedy and is appropriate when the normal appeal process is inadequate, when the case

involves purely legal questions, and when one or more of the following exists: (1) the other

court is proceeding under a mistake of law and is causing a gross injustice;

(2) constitutional issues of state-wide importance are involved; and (3) the other court has

granted or denied a motion for substitution of a judge in a criminal case.

M. R. App. P. 14(3). Here, Daenzer argues the Municipal Court is proceeding under a

mistake of law by denying the deposition of an uncooperative material witness prior to

trial. We conclude the Municipal Court is not operating under a mistake of law. Our

conclusion is dispositive of Daenzer’s petition.

¶5     Section 46-15-201, MCA, sets forth when a deposition in a criminal case may be

taken. Of relevance here, § 46-15-201(1)(c), MCA, provides:

       (1) In district or municipal court cases, a deposition may be taken if it
      appears that a prospective witness:
                                         .   .     .
       (c) 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. The court shall, upon motion of any party and proper notice, order
       that the testimony of the witness be taken by deposition and that any
       designated books, papers, documents, or tangible objects, not privileged, be
       introduced at the time the deposition is taken.

Section 46-15-201, MCA, cannot be read in isolation. Section 46-15-202, MCA, provides

the procedure for taking depositions in a criminal case, and mirrors many of the procedures

of the criminal trial itself. For example, a defendant has the right to be present at a

deposition and, if in custody, the “officer having custody shall produce the defendant and

keep the defendant in the presence of a witness during the deposition,”


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§ 46-15-202(5), MCA; a party defendant’s deposition may only be taken upon his consent

and “the scope and manner of examination and cross-examination must be restricted as

would be allowed in the trial itself,” § 46-15-202(2), MCA; and, whenever a deposition is

taken in a criminal case and a defendant is unable to bear the expense of travel, subsistence,

transcription costs, or cost of counsel, the costs must be paid by the city for a municipal

court proceeding or by the state for a district court proceeding, § 46-15-202(7), MCA.

Depositions must be taken before “an officer authorized by the laws of this state to

administer oaths” or a “person appointed by the court . . . to administer oaths and take

testimony.” M. R. Civ. P. 28(a)(1). Accordingly, §§ 46-15-201 and -202, MCA, preserve

a defendant’s fundamental trial rights under the Montana and United States Constitutions.

If a defendant’s rights were not protected by these statutory procedures, use of deposition

testimony at a defendant’s subsequent trial would violate, among other fundamental rights,

a defendant’s right to be present at his trial and the right to confront witnesses against him.

¶6       The 1991 Commission Comments express this same purpose of preserving trial

testimony that might not otherwise be available for trial. The purpose of the statute

“is to set forth the limited use of depositions in criminal cases. They are only to be used

when the state or defendant needs a deposition to avoid the loss of a witness material to the

case.”      Section 46-15-201, MCA, Annotations, Comm’rs Comments (1991).

In State v. Austad, 197 Mont. 70, 641 P.2d 1373 (1982), the defendant requested the trial

court order depositions of several FBI expert witnesses and argued FBI restrictions on

dissemination of information by telephone prevented the witnesses from telephonically

answering the defendant’s questions. This Court noted there had been thorough and ample

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discovery of forensic evidence and concluded that because the FBI witnesses would be

available at trial to testify, there would be no danger their testimony would be lost to the

defendant. This Court also noted that the trial court provided the defendant the opportunity

to request a continuance in order to adequately rebut the expert’s testimony, but that Austad

did not make any such request. On other occasions, this Court has similarly explained that

“[t]he ability to question adverse witnesses, however, does not include the power to require

the pretrial disclosure of any and all information that might be useful in contradicting

unfavorable testimony.” State v. Reynolds, 243 Mont. 1, 8, 792 P.2d 1111, 1115 (1990)

(citation omitted). “[T]he right of a defendant to confront his accusers is not equivalent to

a constitutionally compelled rule of pretrial discovery. Rather, the right of confrontation

is a trial right, guaranteeing an opportunity for effective cross-examination.

See Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 94 L.Ed.2d 40 (1987).”

Reynolds, 243 Mont. at 7, 792 P.2d at 1115. While we appreciate Daenzer’s argument that

taking Peabody’s deposition would assist in counsel’s effectiveness and presentation of a

defense, both of which are fundamental constitutional rights, we decline to impose a

requirement for routine depositions which would stretch beyond the limited purpose of the

statutes.

¶7     A pretrial interview of a witness is distinguishable from the limited use of

depositions in criminal trials. Daenzer is not asserting a right to compel a pretrial interview

because pretrial interviews are not provided for by any statute or constitutional right. In

the context of a criminal trial, as compared to discovery in a civil case, the State and

defendant are mandated by statute to make certain disclosures and to exchange and produce

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evidence and information. See §§ 46-15-322 and -323, MCA. In particular, the State must

disclose any exculpatory evidence or “information that tends to mitigate or negate the

defendant’s guilt as to the offense charged or that would tend to reduce the defendant’s

potential sentence.” Section 46-15-322(1)(e), MCA. A court can address a situation and

provide appropriate relief where it is alleged the prosecutor is attempting to “sandbag” the

defense or institute a “trial by ambush” after considering the allegations and the

circumstances of the case. For example, in Austad, the trial court considered the discovery

that had already been provided and indicated it would allow for a continuance following

the expert’s testimony if one were requested.             Austad, 197 Mont. at 94-95,

792 P.2d at 1386-87. Here, while Daenzer originally asked for a pretrial interview, the

relief he requested was pursuant to a statute allowing for the limited use of depositions in

criminal cases. 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.

¶8     In contrast, depositions 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 “may” 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 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

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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.

¶9     The Municipal Court is not proceeding under a mistake of law which is causing a

gross injustice.

¶10    Accordingly, IT IS ORDERED that Daenzer’s Petition for Writ of Supervisory

Control is GRANTED. The Municipal Court’s Order Regarding Deposition of Witnesses

is AFFIRMED.

       The Clerk of the Supreme Court shall provide a copy of this Order to the Honorable

Kathleen Jenks, Municipal Court Judge, and to all parties of record.



                                                /S/ LAURIE McKINNON


We concur:

/S/ MIKE McGRATH
/S/ INGRID GUSTAFSON
/S/ JIM RICE
/S/ DIRK M. SANDEFUR




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