                                                                                                10/18/2016


                                           DA 15-0479
                                                                                            Case Number: DA 15-0479

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 261



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

ROBERT LAWRENCE DOBROWSKI,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Sixteenth Judicial District,
                        In and For the County of Custer, Cause No. DC-2013-62
                        Honorable Michael B. Hayworth, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Penelope S. Strong, Attorney at Law, Billings, Montana

                For Appellee:

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

                        Wyatt A. Glade, Custer County Attorney, Miles City, Montana



                                                    Submitted on Briefs: August 24, 2016

                                                                Decided: October 18, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.


¶1    Judge Michael Hayworth of the Sixteenth Judicial District Court, Custer County,

presided over the trial of Robert Lawrence Dobrowski (Dobrowski) for criminal

production or manufacture of dangerous drugs. The jury returned a verdict of guilty.

Dobrowski appeals, alleging numerous errors at trial.

¶2    We address the following issues on appeal:

      Issue one: Did the District Court abuse its discretion in instructing the jury on the
      theory of accountability when the State did not charge Dobrowski with
      accountability in the Information?

      Issue two: Did the District Court abuse its discretion when it allowed the State to
      admit Dobrowski’s medical marijuana provider application?

      Issue three: Did the prosecutor’s statements during closing argument constitute
      prosecutorial misconduct?

      Issue four: Did the District Court err when it denied Dobrowski’s request for a
      surrebuttal closing argument?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3    In the fall of 2012, Dobrowski and his wife Traci Dobrowski (Traci) lived on

property located in Custer County, Montana, owned by Michael Burk (Burk) and

Geraldine Burk (Geraldine). Dobrowski, Burk, Traci, and Geraldine each had medical

marijuana patient cards issued to them by the Department of Public Health and Human

Services (DPHHS), which allowed each individual to possess four mature plants, twelve

submature plants, and one ounce of usable marijuana.        Burk and Dobrowski began

growing marijuana on the property. Dobrowski and Traci moved to Miles City, Montana,

in December of 2012. In February 2013, Dobrowski applied for a medical marijuana

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provider license, listing Burk’s property as the address where he would grow marijuana.

His application was later denied.

¶4     On March 14, 2013, law enforcement officers executed a search warrant on Burk’s

property after a criminal investigation discovered evidence consistent with a marijuana

cultivation operation. Officers discovered 66 mature plants and 22 submature plants.

Officers spoke to Dobrowski after the search.        He acknowledged that he had been

growing marijuana on the property and helped to set up the building where the marijuana

was found. On December 5, 2013, the State filed an Information charging Dobrowski

with criminal production or manufacture of dangerous drugs.              A jury convicted

Dobrowski on February 27, 2016.

¶5     Other facts will be noted as necessary to discuss the issues raised on appeal.

                              STANDARDS OF REVIEW

¶6     We review a district court’s decision regarding jury instructions for an abuse of

discretion. State v. Lacey, 2012 MT 52, ¶ 15, 364 Mont. 291, 272 P.3d 1288. “The

standard of review of jury instructions in criminal cases is whether the instructions, as a

whole, fully and fairly instruct the jury on the law applicable to the case.” State v.

Dunfee, 2005 MT 147, ¶ 20, 327 Mont. 335, 114 P.3d 217.

¶7     “District courts are vested with broad discretion in controlling the admission of

evidence at trial.” Seltzer v. Morton, 2007 MT 62, ¶ 65, 336 Mont. 225, 154 P.3d 561.

We review a district court’s admission of rebuttal evidence for abuse of discretion. State

v. Weitzel, 2000 MT 86, ¶¶ 23-24, 299 Mont. 192, 998 P.2d 1154.



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¶8     We review allegations of prosecutorial error de novo, considering the prosecutor’s

conduct in the context of the entire proceeding. State v. Labbe, 2012 MT 76, ¶ 11, 364

Mont. 415, 276 P.3d 848 (closing argument). We consider closing argument statements

in the context of the entire argument and review a district court’s rulings on objections to

closing argument content for an abuse of discretion. State v. Chafee, 2014 MT 226, ¶ 12

376 Mont. 267, 332 P.3d 240.

¶9     We review a district court’s application of a statute for correctness. State v. Alden,

282 Mont. 45, 49, 934 P.2d 210, 213 (1997).

                                      DISCUSSION

¶10    Issue one: Did the District Court abuse its discretion in instructing the jury on the
       theory of accountability when the State did not charge Dobrowski with
       accountability in the Information?

¶11    The State’s information filed against Dobrowski did not include an accountability

charge. Rather, the State sought jury instructions on the theory of accountability on the

second day of trial. The District Court admitted two instructions on accountability over

Dobrowski’s objection. Dobrowski now asks us to revisit our prior case law, namely

State v. Tellegen, 2013 MT 337, 372 Mont. 454, 314 P.3d 902 and State v. Tower, 267

Mont. 63, 881 P.2d 1317 (1994), arguing that the allowance of the accountability

instruction violated Dobrowski’s right to due process and his right to present a defense.

¶12    Under the Sixth Amendment, a criminal defendant has the right “to be informed of

the nature and cause of the accusation” brought against him. U.S. Const. amend. VI. To

this end, § 46-11-401(1), MCA, requires charging documents to state the name of the



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offense and, for each count, to state “the official or customary citation of the statute, rule,

regulation, or other provision of law that the defendant is alleged to have violated.”

¶13    Section 45-2-302, MCA, provides, in relevant part:

       A person is legally accountable for the conduct of another when:
                                         . . .
              (3) either before or during the commission of an offense with the
       purpose to promote or facilitate the commission, the person solicits, aids,
       abets, agrees, or attempts to aid the other person in the planning or
       commission of the offense.

We have repeatedly held that “accountability is not a separate or different offense from

the one charged, but rather, is ‘merely a conduit by which to find a person criminally

liable for the acts of another.’” Tellegen, ¶ 9 (quoting State v. Maetche, 2008 MT 184,

¶ 16, 343 Mont. 464, 185 P.3d 980; State v. Abe, 1998 MT 206, ¶ 31, 290 Mont. 393, 965

P.2d 882; Tower, 267 Mont. at 67-68, 881 P.2d at 1320). Stare decisis “is of fundamental

and central importance to the rule of law,” which “reflects our concerns for stability,

predictability, and equal treatment.” State v. Gatts, 279 Mont. 42, 51, 928 P.2d 114, 119

(1996). As such, we decline to reconsider our prior holdings in Tower and Tellegen.

Given our well-established principle of law regarding the theory of accountability, a

defendant should be able to predict and plan for the possibility that the State may request

an accountability instruction during trial. Tellegen, ¶ 9 (citing Tower, 267 Mont. at 68,

881 P.2d at 1320).

¶14    In Tower, we found unpersuasive a defendant’s claim that he was surprised by an

accountability instruction given that he was provided all the evidence the State intended

to present at trial. Tower, 267 Mont. at 68, 881 P.2d at 1320. We concluded that “[i]n


                                              5
light of the defense’s knowledge of the State’s case, and the consistent history of the law

of accountability in Montana, there was every reason to anticipate an accountability

instruction.” Tower, 267 Mont. at 68, 881 P.2d at 1320. Likewise, in Tellegen, we held

that a defendant had sufficient notice of a possible accountability instruction when the

State presented evidence at trial that she assisted others in committing the crime for

which she was charged. Tellegen, ¶¶ 9-10.

¶15    The facts in this case are similar to the facts in Tower and Tellegen. One week

after the search of Burk’s property, Dobrowski admitted to officers that he was

cooperatively growing marijuana on the property and helped to set up one of the

buildings where the plants were found. The State then charged Dobrowski with criminal

production or manufacture of dangerous drugs. During trial, the prosecution elicited

testimony from Dobrowski that sought to establish his participation in the growing

operation on Burk’s property. Dobrowski testified that he previously taught Burk to

grow marijuana and told officers that he and Burk had a cooperative grow on the

property. In short, Dobrowski was charged for his participation in the growing operation,

and Dobrowski himself testified that he was involved in the operation.            The facts

underlying Dobrowski’s case and the State’s presentation of evidence at trial, which

sought to establish that he did not act alone in growing marijuana on Burk’s property, put

him on notice that the State could potentially request an accountability jury instruction.

¶16    Dobrowski attempts to rely on State v. Spotted Eagle, 2010 MT 222, 358 Mont.

22, 243 P.3d 402. In Spotted Eagle, the State initially charged the defendant under

§ 45-5-206(1)(a), MCA, then later sought to instruct the jury under § 45-5-206(1)(c),

                                             6
MCA. Spotted Eagle, ¶ 11. Since this changed the essential elements of the charge

against Spotted Eagle, the Court held that the district court abused its discretion in

allowing an instruction on the separate and distinct offense not charged in the State’s

information. Spotted Eagle, ¶¶ 11-12, 16. As in this case, the defendant in Tellegen also

attempted to rely on Spotted Eagle to contend that, like the statutory subsections in that

case, the statute on accountability is a separate and distinct offense requiring express

notice from the prosecution. Tellegen, ¶¶ 13-14. However, we distinguished Spotted

Eagle from Montana’s case law on accountability, holding that “[a]ccountability is not a

separate or different offense from the one charged, it is merely a theory to establish

criminal liability for the charged offense” and “does not constitute a substantive shift in

the charge.” Tellegen, ¶ 14. Thus, as we previously held in Tellegen, Spotted Eagle does

not apply to the case at bar. We conclude that the District Court did not abuse its

discretion in instructing the jury on the theory of accountability.

¶17    Issue two: Did the District Court abuse its discretion when it allowed the State to
       admit Dobrowski’s medical marijuana provider application?

¶18    On the first day of trial, the State learned that Dobrowski intended to offer into

evidence various letters between DPHHS and Dobrowski, Burk, Traci, and Geraldine.

The District Court allowed Dobrowski to introduce this correspondence through the

testimony of a DPHHS employee.            The State then asked the court to issue an

investigative subpoena for Dobrowski’s medical marijuana provider application.

Dobrowski objected to the State’s motion, claiming that it was untimely. The court

issued the investigative subpoena, concluding that the State had a compelling state


                                              7
interest in obtaining the application, but that it could only be used on rebuttal. During

trial, both Dobrowski’s counsel and the State questioned the defendant about his

application and it was subsequently admitted during the State’s rebuttal.

¶19    For the first time on appeal, Dobrowski argues that the court erred in approving

the State’s motion for investigative subpoena without requiring a supporting affidavit by

the prosecutor, as mandated by § 46-4-301, MCA. However, “[i]t is well established that

this Court will not review an issue that was not raised in the district court.” Paulson v.

Flathead Conservation Dist., 2004 MT 136, ¶ 37, 321 Mont. 364, 91 P.3d 569.

Dobrowski did not ask for relief from the improper issuance of an investigative subpoena

in the trial court. See § 46-4-303, MCA. Thus, we will not put the District Court in error

for an issue it never had the opportunity to consider. Paulson, ¶ 37.

¶20    Dobrowski also argues that the District Court abused its discretion in allowing the

State to admit Dobrowski’s medical marijuana provider application during rebuttal. He

argues that because the State failed to disclose the document in a timely manner, the

court’s subsequent admission of the application during rebuttal sanctioned the use of a

prejudicial, dilatory tactic by the prosecution.

¶21    Section 46-15-322, MCA, provides, in relevant part:

             (1) Upon request, the prosecutor shall make available to the
       defendant for examination and reproduction the following material and
       information within the prosecutor’s possession or control:
                                        . . .
             (d) all papers, documents, photographs, or tangible objects that the
       prosecutor may use at trial or that were obtained from or purportedly
       belong to the defendant . . . .



                                              8
“The policy behind § 46-15-322, MCA, is to provide notice and prevent surprise.” State

v. Stewart, 2000 MT 379, ¶ 22, 303 Mont. 507, 16 P.3d 391. Prosecutors also have a

continuing duty to disclose “additional information or material that would be subject to

disclosure had it been known at the time of disclosure.” Section 46-15-327, MCA.

¶22   In this case, Dobrowski’s medical marijuana provider application was not in the

State’s possession or control until the District Court approved the motion for

investigative subpoena during trial. Furthermore, when DPHHS provided the State with

Dobrowski’s application, the State immediately gave the document to the defense. From

these facts, it is evident that the State provided the application to Dobrowski at the

“earliest opportunity.” See Weitzel, ¶ 33. Thus, we cannot say that the State failed to

meets its initial or continuing duty to disclose Dobrowski’s provider application when the

prosecutor was not in possession or control of the document before the subpoena was

issued, and when the State gave Dobrowski a copy of the application upon possession of

the document.

¶23   While Dobrowski attempts to rely on Stewart to support his argument that the

District Court abused its discretion when it permitted the State to introduce the provider

application in rebuttal, we instead find our holding in Weitzel more on point and

dispositive. In Weitzel, we held that the district court did not abuse its discretion in

allowing rebuttal evidence showing the defendant had pawned a handgun where the

defendant’s trial testimony included statements denying gun ownership. Weitzel, ¶¶ 35,

38. This Court concluded that because Weitzel did not provide the State with pre-trial

notice of his plan to suggest to the jury that he did own or possess an handgun, it was

                                            9
“illogical” to hold that the prosecution had a pre-trial duty to disclose the pawn shop

record rebuttal evidence, even where the State had discovered the pawn shop transaction

before trial. Weitzel, ¶¶ 31, 33.

¶24    In this case, we agree with the State that it was entitled to question Dobrowski

about the provider application and admit the document in the State’s rebuttal case. Like

the facts in Weitzel, the record here shows that Dobrowski belatedly disclosed evidence,

in the form of various letters between the DPHHS and Dobrowski, Burke, Traci, and

Geraldine, which he admitted through the testimony of a DPHHS employee. Although it

is unclear what tactical reason Dobrowski had in introducing these documents, he made a

decision to open the door on the issue of his provider application without disclosing the

application itself. See Weitzel, ¶ 35. As such, the State was entitled to present what

became, through Dobrowski’s own making, relevant evidence of Dobrowski’s complete

correspondence with DPHHS. Given Dobrowski’s testimony and the admission of the

DPHHS letters by him, we conclude that the District Court did not abuse its discretion in

allowing the State to admit Dobrowski’s medical marijuana provider application during

rebuttal.

¶25    Issue three: Did the prosecutor’s statements during closing argument constitute
       prosecutorial misconduct?

¶26    Dobrowski claims that two statements made during the prosecution’s closing

argument were improper. In the first statement, the prosecutor attempted to draw an

analogy between a recent accident of his and the case at bar. He stated:

       Well, I got rid of my crutches. I like to think that my case is like my foot,
       just keeps getting better. . . .

                                            10
                                         .   . .
       [I] was trying to figure out a way to present to you my theory on this case,
       and I had several thoughts go through my mind. I mentioned in opening, I
       think these two gentlemen got the cart before the horse. I got to thinking
       what happened here is a lot like what happened to me when I hurt my foot.
       What happened to me…

Dobrowski’s counsel objected to the prosecutor’s statement, arguing that the prosecutor

was vouching for the credibility of a witness. The District Court sustained the objection.

¶27    The prosecutor then began to address a juror’s concern, expressed in voir dire, that

Dobrowski might serve a long sentence if convicted. He stated:

       I want to tell you that sentencing is a matter of law for the [j]udge. Finding
       guilt or innocence is a matter of fact for the jury. Sentencing,
       consequences, they may be very substantial. They may be minimal.
       Depends on who you ask. It’s not an issue that the jury should consider or
       can consider. That’s a legal issue.

       The only issue the jury should consider is whether the [d]efendant is guilty
       of the crime charged. He’s entitled to a fair hearing, if we do go to
       sentencing. He’s got some due process rights that apply if he feels he
       wasn’t treated fairly.

Dobrowski’s counsel objected to this statement and the court directed the prosecution to

“move on.” The defense moved for a mistrial after the State concluded its closing

statement, citing the prosecution’s alleged vouching statement, referral to evidence

outside the record, and reference to sentencing procedure. The court denied the motion.

¶28    Prosecutorial misconduct is determined by reference to established norms of

professional conduct. State v. Martin, 2001 MT 83, ¶ 63, 305 Mont. 123, 23 P.3d 216.

To determine whether a prosecutor’s statement constitutes reversible error, we must first

examine whether the comments were improper. Labbe, ¶ 23 (citing State v. Kolb, 2009

MT 9, ¶ 10, 349 Mont. 10, 200 P.3d 504; State v. Sanchez, 2008 MT 27, ¶ 51, 341 Mont.

                                             11
240, 177 P.3d 444). “If so, we then determine whether the comments prejudiced the

defendant’s right to a fair and impartial trial.” Labbe, ¶ 23 (citing Kolb, ¶ 10). Prejudice

is not inferred; rather, the defendant “must demonstrate, from the record, that the

prosecutor’s misstatements prejudiced him.” Sanchez, ¶ 55. This Court will consider an

alleged improper statement by the prosecutor during closing argument in the context of

the entire argument. Labbe, ¶ 23 (citing State v. Roubideaux, 2005 MT 324, ¶ 15, 329

Mont. 521, 124 P.3d 1114).

¶29    As to the first statement concerning the prosecutor’s purported attempt to

analogize his accident with this case, Dobrowski does not argue on appeal, as he did at

trial, that the comments improperly vouched for the credibility of a witness. Rather, he

only argues that the prosecutor’s statement “was a very clearly prohibited reference to

facts outside the trial record,” in contravention of the Montana Rules of Professional

Conduct 3.4(e). We cannot say that the prosecutor’s first statement was improper on this

basis. The Montana Rules of Professional Conduct prohibit an attorney from alluding to

irrelevant matters or “assert[ing] personal knowledge of facts in issue except when

testifying as a witness.” Mont. R. Prof. Cond. 3.4(e). Here, when the prosecutor stated

“my case is like my foot, just keeps getting better,” he was simply commenting on the

strength of his case by attempting to draw an analogy to his injury. It is not improper for

a prosecutor to comment upon the strength of his case based upon the evidence. See

State v. Glaudue, 1999 MT 1, ¶ 21, 293 Mont. 1, 972 P.2d 827.

¶30    On the other hand, it is well-settled law in Montana that “closing arguments which

reflect a prosecutor’s personal opinion as to the guilt of the defendant are improper.”

                                            12
Glaudue, ¶ 22 (citing State v. Statczar, 228 Mont. 446, 457, 743 P.2d 606, 613 (1987)).

However, the prosecutor’s statement that Dobrowski and Burk “got the cart before the

horse” was simply a way for the prosecution to explain its theory of the case; namely,

that Dobrowski helped Burk grow marijuana in excess of the amount allowed by law

without getting a provider license which would have allowed him to do so legally. Thus,

we cannot conclude that the prosecutor made an improper statement of his personal

opinion regarding Dobrowski’s guilt.

¶31   Dobrowski also contends that the prosecutor’s second statement concerning

sentencing was improper and prejudicial. The State argues that the prosecutor correctly

informed the jury that sentencing matters are decided by the court and, unlike the case

law relied upon by Dobrowski, did not specifically discuss the type of sentence the

defendant might receive if convicted. We have held that it is improper for the prosecutor

to inform the jury about possible sentences in closing argument. Martin, ¶ 65. In this

case, the prosecutor was responding to a juror’s previously stated concern over the

possible sentencing consequences for Dobrowski. The prosecutor replied by accurately

stating that sentencing decisions are solely the duty of the trial court and outside the

province of the jury. The prosecutor also referred to the fact that sentences vary widely

and the defendant would have rights “if we do go to sentencing.”            Such general

statements are unlike those in Stewart, where the prosecutor attempted to assure the jury

by stating that the judge had the authority to get the defendant into treatment and not

sentence him to jail time. Stewart, ¶ 43. Unlike Stewart, the prosecution in this case was

not attempting to give assurance to the jury that Dobrowski’s sentence would be light;

                                           13
rather, the prosecutor was informing the jurors that it was impermissible for them to

weigh potential punishment because such matters are left to judge and subject to the

defendant’s constitutional rights. Thus, we cannot say that this statement was improper

or that the District Court erred in denying Dobrowski’s motion for a mistrial.

¶32    Since we have determined that the prosecutor’s statements were not improper,

there is no need to discuss whether Dobrowski was prejudiced by the statement.

¶33    Issue four: Did the District Court err when it denied Dobrowski’s request for a
       surrebuttal closing argument?

¶34    Prior to trial, Dobrowski filed a motion in limine requesting a departure from the

customary order of trial; specifically, he asked to be allowed to present a surrebuttal

closing argument.    The District Court denied Dobrowski’s motion, characterizing it

instead as a motion to deviate from the statutory order of trial and finding it untimely.

Dobrowski argues that the District Court erred in denying his motion because he

demonstrated good cause to depart from the order of trial and was thus entitled to present

a surrebuttal argument at closing. The State contends that no rule or statute requires a

district court to grant a defendant’s request for a surrebuttal argument.

¶35    Section 46-16-402, MCA, allows a court to deviate from the order of trial “[f]or

good cause shown and in the discretion of the court.” See State v. Otto, 2014 MT 20,

¶ 11, 373 Mont. 385, 317 P.3d 810. While § 46-14-401(3), MCA, allows the prosecution

and defense to offer rebutting testimonial evidence “at any time before the close of

evidence,” the decision to allow a surrebuttal closing argument is within the discretion of

the trial court. The cases Dobrowski cites in support of his argument to the contrary are


                                             14
either irrelevant or inapplicable to the case at bar and we decline to address them.

Because the District Court found Dobrowski’s motion to deviate from the statutory order

of trial untimely under its pre-trial omnibus order, and because the court found that

Dobrowski presented no basis under Montana law to deviate from the trial order, we

conclude that the District Court acted within the proper bounds of its discretion when it

denied Dobrowski’s request to present a surrebuttal argument at closing.

                                    CONCLUSION

¶36   For the foregoing reasons, we affirm.


                                                /S/ MICHAEL E WHEAT


We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JIM RICE




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