                                                                                        October 9 2012


                                         DA 11-0165

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2012 MT 226


STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

BOBBY COOKSEY,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Fourteenth Judicial District,
                      In and For the County of Musselshell, Cause No. DC 09-13
                      Honorable Randal I. Spaulding, Presiding Judge

COUNSEL OF RECORD:

               For Appellant:

                      Wade M. Zolynski, Chief Appellate Defender, Shilo Hernandez,
                      Assistant Appellate Defender, Helena, Montana

                      Robin A. Meguire, Attorney at Law, Great Falls, Montana

               For Intervenor Debra Cooksey:

                      Carl B. Jensen, Jr., Attorney at Law; Great Falls, Montana

               For Appellee:

                      Steve Bullock, Montana Attorney General; Jonathan M. Krauss,
                      Assistant Attorney General, Helena, Montana

                      Kent Sipes, Musselshell County Attorney, Roundup, Montana



                                                  Submitted on Briefs: June 6, 2012
                                                             Decided: October 9, 2012
Filed:
                      __________________________________________
                                        Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1    In September 2010 a jury in the Fourteenth Judicial District Court, Musselshell

County, convicted Bobby Cooksey of deliberate homicide. The District Court sentenced

Cooksey to a term of fifty years in the Montana State Prison with credit for time served,

and Cooksey appeals. We affirm.

¶2    Cooksey presents the following issues for review: (1) whether the District Court

properly denied Cooksey’s motion for a new trial; (2) whether the District Court properly

excluded Cooksey’s offered evidence concerning the presence of the drug Paxil in the

deceased’s blood; (3) whether the State was required to conduct an investigation to

discover evidence to support Cooksey’s claim of justifiable use of force; and (4) whether

the prosecutor’s closing argument amounted to prosecutorial misconduct.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3    Cooksey lived in a rural area outside of Roundup, Montana and one of his

neighbors was Tracey Beardslee. Beardslee’s access to his property was via a road

easement that crossed Cooksey’s property. Beardslee had lived adjacent to Cooksey for

several years and the two had several verbal altercations. On July 7, 2009, Cooksey, by

his account given to law enforcement investigators, heard his dogs barking and left his

house armed with a large-bore lever-action rifle. He walked toward his dogs and saw

Beardslee using a weed-whacker to clear weeds along the margins of the easement.

Cooksey walked toward Beardslee and asked him what he was doing on Cooksey’s

property. Cooksey claimed that Beardslee then “went off,” cussed him, said he would

kick Cooksey’s ass, and finally that he would kill Cooksey. At that moment Cooksey

                                           2
lifted his rifle and fired, sending a bullet through Beardslee’s chest and killing him.

Cooksey returned to his house, called 911, and reported that he had shot Beardslee.

¶4     Musselshell County deputies responded to the call, secured the scene and called in

the State Division of Criminal Investigation to investigate the incident. The responding

deputies obtained Cooksey’s consent to secure the weapon he used. Later that day a State

investigator arrived and took Cooksey’s voluntary statement about what had happened.

The investigation determined facts about the background relationship between Cooksey

and Beardslee; about what Cooksey saw and what he did; and about what Beardslee did

based upon Cooksey’s account.        The investigation obtained a chemical analysis of

Beardslee’s blood and, at the request of the defense, a second analysis at a laboratory in

Pennsylvania.

¶5     By Cooksey’s own admission Beardslee had never physically attacked him and

did not do so on the day he died. When Cooksey fired the shot there was a wood pole

fence and a barbed wire fence between him and Beardsley, and Beardsley was still weed

whacking and was moving back toward his own house. Cooksey observed a folding

knife in a case on Beardslee’s belt but never saw him pull it out.

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

                               STANDARD OF REVIEW

¶7     The standard of review will be discussed in regard to each issue.

                                      DISCUSSION

¶8     Issue One: Whether the District Court properly denied Cooksey’s motion for a

new trial based upon juror misconduct.

                                             3
¶9       A convicted defendant may move for a new trial within 30 days of the guilty

verdict. The motion must be in writing, must specify the grounds for a new trial, and

must be served upon the prosecution. The district court may grant a new trial “if required

in the interest of justice.” Section 46-16-702, MCA. Cooksey’s motion for a new trial

was based upon several grounds. He subpoenaed several witnesses to testify at the

hearing on the motion, which occurred on December 3, 2010.                 The District Court

subsequently denied the motion in a written order.

¶10      A district court’s decision on a motion for a new trial and its decision on issues of

jury impartiality are reviewed for abuse of discretion, State v. Dunfee, 2005 MT 147, ¶

14, 327 Mont. 335, 114 P.3d 217, unless the specific issue requires a different standard of

review, State v. Ariegwe, 2007 MT 204, ¶ 164, 338 Mont. 442, 167 P.3d 815. A district

court commits an abuse of discretion when it acts arbitrarily, without conscientious

judgment, and exceeds the bounds of reason in a way prejudicial to the defense. Ariegwe,

¶ 164.

¶11      First, Cooksey contends that there was structural error prior to the start of trial. He

contends that some prospective jurors made improper and prejudicial statements while

the prospective jurors were waiting in a church basement meeting room near the

courthouse. Prior to trial the District Court determined that there was not sufficient room

in the courthouse to safely and adequately accommodate all the 80 or so prospective

jurors prior to commencement of jury selection. The District Court decided to hold the

prospective jurors, identified as such by stickers they were given when they signed in,

and accompanied by two bailiffs, in a church basement meeting room near the courthouse

                                                4
until jury selection began. The District Court explained this to the prosecution and the

defense well before the start of trial, and neither side made any objection or requested

that any other steps be taken. Specifically, neither side requested that any cautionary

instructions be given.

¶12    On the morning of the first day of trial the District Court concluded the final

pretrial conference with the prosecution and defense and considered several requests

from prospective jurors that they be excused. The prospective jurors were then escorted

to the courtroom, there was a roll call, and the prospective jurors were sworn to truly

answer all questions asked of them. By the District Court’s own description, there were

no time limits or restrictions on voir dire and the attorneys were permitted to ask “every

question they desired of the prospective jurors, including whether they could put aside

anything they had heard about the case and render a fair and unbiased decision based

only upon the evidence presented in court.”

¶13    Second, Cooksey alleges error within the jury deliberation process itself. Cooksey

offered evidence that seated juror Beres commented during deliberations that the

decedent Beardslee visited her mother’s house, and would cease being loud or verbally

abusive when Beres’ mother asked him to do so. This would establish that at least the

juror’s mother knew the decedent and that the juror had discussed the decedent with her

mother.

¶14    After trial and at the hearing on the motion for a new trial, Cooksey presented the

testimony of prospective juror Mark Lurie, who contended that there was a loud “circus

atmosphere” in the church basement, that at least one prospective juror was loudly

                                              5
proclaiming Cooksey’s guilt, and that bailiffs were nowhere to be seen. Prospective juror

Newman, who was ultimately excused, testified that she heard prospective juror Simms,

who was also excused, express his opinions that the killing was wrong and that it was not

right to kill someone in cold blood.      Other persons who were present heard other

statements that they could no longer recall.

¶15    Witness Roy Dickerson, who was presented by the State, had also been a

prospective juror in the church basement. He testified that there was no loud circus

atmosphere, but that the gathering of jurors was subdued and somber. He testified that it

was in fact Mr. Lurie who was talking loudly and incessantly about his claimed legal

experience and knowledge of the legal system, to such an extent that he would be

surprised if Lurie heard anything that anyone else said. Dickerson testified that the

bailiffs were clearly identified with name tags and that he did not hear negative

comments about either side of the case. None of the other witnesses who testified at the

motion hearing corroborated Lurie’s account of the atmosphere and content of

discussions in the church basement.

¶16    The District Court specifically found that Lurie’s account of the matter was not

credible and that Dickerson’s testimony was “completely credible.” Despite Lurie’s

professed attention to detail, he could not remember important details on cross-

examination, and while claiming to have a guilty conscience based upon what he had

witnessed, never reported it to anyone until after he learned of the guilty verdict. At that

time he contacted the defense. The District Court also found that Lurie’s demeanor while

testifying was the same as that observed by Dickerson in the church basement. The

                                               6
District Court specifically found that while testifying at the hearing, Lurie “spoke loudly

and incessantly until interrupted by the court and counsel”; that he was “overly eager to

talk about his experience as a fraud investigator/threat analyst and his purported prior

experience with the court system”; that his testimony was “self aggrandizing”; and that

“he appeared intent on presenting himself in an overly virtuous manner” while being

“gratified to be the center of attention.”

¶17    It is the District Court’s province to determine the weight of the evidence. Albert

v. Hastetter, 2002 MT 123, ¶ 30, 310 Mont. 82, 48 P.3d 749. We conclude that the

District Court did not abuse its discretion in rejecting Lurie’s version of events.

¶18    As to alleged misconduct during the jury deliberations, M. R. Evid. 606(b)

materially circumscribes evidence that may be given by a juror “[u]pon inquiry into the

validity of a verdict.” In summary, Rule 606(b) allows for juror testimony to impeach a

verdict “only if the evidence is used to determine whether the jury was influenced by

extraneous, prejudicial information, or any outside influence, or whether a particular juror

has reached a specific determination as a result of chance.” State v. Hoffman, 2003 MT

26, ¶ 50, 314 Mont. 155, 64 P.3d 1013. (Rule 606 prohibits a juror from giving evidence

that defendant would have been convicted of a lesser offense if a lesser included offense

instruction had been given.)      Juror testimony or evidence may be admitted only to

establish that the jury was subjected to external influence such as a juror obtaining

information about previous litigation, a visit to the scene of the incident, or bringing

newspaper articles to the jury. State v. Kelman, 276 Mont. 253, 262, 915 P.2d 854, 860

(1996).

                                              7
¶19   It is established that “knowledge and information shared from one juror to another

or others is not an extraneous influence” which may be proven by evidence admissible

under M. R. Evid. 606(b). Kelman, 276 Mont. at 262, 915 P.2d at 860 (juror statement

during deliberations that defendant owned a strip joint was not admissible to impeach the

verdict). Examples of inadmissible “internal influences” on the jury include the jury’s

use of “demonstrative evidence or experimentation with the evidence; pressure by other

jurors; and knowledge and information shared from one juror to another or others.” State

v. Lawlor, 2002 MT 235, ¶ 12, 311 Mont. 493, 56 P.3d 863.

¶20   Rule 606(b) as previously construed by this Court applies here and precludes the

types of verdict impeachment posited by Cooksey. The alleged statements, even if they

had been established as fact, would have been at most internal influences, insufficient to

alter the outcome of the case and inadmissible under M. R. Evid. 606(b). The Beres

information was not properly admissible under Rule 606(b). It is analogous to the juror

statement in Kelman that the defendant owned a strip bar, and that statement was

excluded under Rule 606(b). Kelman, 276 Mont. at 262, 915 P.2d at 860; McGillen v.

Plum Creek Timber Co., 1998 MT 193, ¶ 20, 290 Mont. 264, 964 P.2d 18 (juror

disclosure during deliberation that he knew a witness is internal influence and not

admissible). The Beres statement was not prejudicial, rather it was at most ambiguous

and did not obviously help or hinder the defense. On the one hand the statement might be

construed to show Beardslee to be a compliant houseguest, while on the other it might

show him to be obnoxious in another’s home.



                                            8
¶21    Moreover, the Beres evidence was not disclosed to the prosecution in the motion

for a new trial as required by § 46-16-702, MCA. The District Court was therefore

within its discretion to disallow the evidence. Upon review, we conclude that the District

Court did not abuse its discretion in denying the motion for a new trial on the jury

misconduct issues.

¶22    Finally, Cooksey contends that defense counsel rendered ineffective assistance by

failing to call on Beres during voir dire and thereby discover that her mother knew the

decedent. Since we have concluded that the Beres statement during deliberations was not

admissible or prejudicial, there was no error to consider in a plain error review.

¶23    Issue Two:    Whether the District Court properly excluded Cooksey’s offered

evidence concerning the presence of the drug Paxil in the deceased’s blood.

¶24    A district court has broad discretion to determine the relevance and admissibility

of evidence, and this Court reviews evidentiary rulings for abuse of discretion. State v.

Passmore, 2010 MT 34, ¶ 51, 355 Mont. 187, 225 P.3d 1229.

¶25    The State Crime Lab conducted an autopsy of the decedent’s body after the

shooting, and thereafter sent tissue samples to a laboratory out of state for additional

testing. The initial toxicology report from the autopsy showed a number of drugs in the

decedent’s body, including Methadone. The additional laboratory testing detected the

presence of a small, sub-therapeutic level (20 nanograms per milliliter) of the drug Paxil.

The defense had copies of the reports from both the State Crime Lab and the out-of-state

lab before trial. The defense presented expert testimony at trial through Dr. Bennett as to

the autopsy report and the possible effects on the decedent’s behavior of the drugs that

                                             9
were detected. The defense contention was that at least some of the drugs could have

caused Beardslee to act aggressively.

¶26    During the sixth day of trial the defense first requested leave to call an unidentified

person from the out-of-state lab to lay the foundation for admission of that lab’s report

regarding the Paxil. The defense also requested leave to call Dr. Bennett to testify as to

the significance of the Paxil in the decedent’s body. The defense contention was that the

Paxil could also cause the decedent to act aggressively toward Cooksey.

¶27    The prosecution objected on the ground that the defense had not previously

disclosed its intent to use this report and that the report could not be admitted without

establishing a proper foundation. The District Court allowed the defense to make an

offer of proof through Dr. Bennett about the significance of the Paxil. Dr. Bennett stated

that the amount of Paxil was in a “low therapeutic” or “sub therapeutic” range and that

Paxil is an antidepressant designed to “cheer you up.”           He stated that there was

“anecdotal evidence” that Paxil can cause suicidal or homicidal behavior, meaning that

“there is a claim, a story unproven by testing” that has “never made it through the

scientific steps.” He had heard of one case in which a person with Paxil in his system

had committed murder, but did not know whether the Paxil influenced the conduct.

¶28    The District Court excluded the proposed evidence because the defense had not

disclosed it to the prosecution and had not shown good cause for the failure to disclose.

Section 46-15-323(5), MCA, requires a defendant to disclose the name of each person he

intends to call to support a defense of justifiable use of force. After trial starts, the

defense may not call any witness in support of a defense of justifiable use of force if that

                                             10
witness had not been previously listed, except upon a showing of good cause. The

district court may preclude a defendant from calling a witness who was not disclosed.

Section 46-15-329(4), MCA; State v. DeMary, 2003 MT 307, ¶ 17, 318 Mont. 200, 79

P.3d 817. The District Court’s Omnibus Hearing Memorandum entered in October 2009,

required both prosecution and defense disclosure of witnesses “immediately and on a

continuing basis.” Cooksey did not comply with these requirements concerning the Paxil

testimony and did not demonstrate any good cause for the failure.

¶29   The proposed testimony of Dr. Bennett, as demonstrated through the defense offer

of proof, was not properly expert testimony under M. R. Evid. 702. That Rule provides

for expert testimony if “scientific, technical, or other specialized knowledge will assist

the trier of fact to understand the evidence or determine a fact in issue.” Dr. Bennett,

even though he previously testified as an expert in the case concerning the other drugs

found in the decedent’s body, clearly had no scientific, technical or other specialized

knowledge about the relationship, if any, between Paxil and aggressive behavior. He

stated that his information was merely anecdotal and had not been scientifically tested.

The District Court specifically recognized that the proposed evidence was “highly

speculative, of questionable relevance, and will, without more, serve to confuse and

mislead the jury.”

¶30   The jury heard expert testimony about the significance of the drug Methadone in

the decedent’s body.    The tenuous information about Paxil, in addition to its other

problems noted above, added nothing to the defense, and exclusion of the proffered Paxil

evidence in this case was proper and not an abuse of discretion. Valley Bank v. Hughes,

                                           11
2006 MT 285, ¶¶ 42-45, 334 Mont. 335, 147 P.3d 185 (expert in banking properly

excluded from testimony because she was not an expert in the crucial standard of care

involved in the case).

¶31    Issue Three:      Whether the State was required to conduct an investigation to

discover evidence to support Cooksey’s claim of justifiable use of force.

¶32    This Court reviews de novo a district court’s interpretation of a statute. State v.

Daniels, 2011 MT 278, ¶ 11, 362 Mont. 426, 265 P.3d 623. In doing so we are guided by

the long-held maxim that legislative intent must first be determined from the plain words

used in the statute, and when that is possible no other means of interpretation are proper.

City of Missoula v. Cox, 2008 MT 364, ¶ 9, 346 Mont. 422, 196 P.3d 452. Courts may

not disregard the plain language of a statute. Bank of America v. Ivey, 2010 MT 131, ¶

10, 356 Mont. 388, 234 P.3d 867. The court’s role is to ascertain and declare what is in

“terms or in substance contained” in a statute, and not to insert what is omitted or omit

what is inserted. Section 1-2-101, MCA.

¶33    Prior to trial Cooksey filed a “Motion for Compliance with Mont. Codes Ann. §

45-3-112” in which he requested that the District Court order the prosecution to provide a

list of specific items including the decedent’s complete medical records; all drug and

alcohol evaluations of the decedent; the decedent’s complete criminal record; a copy of

all mental health records of the decedent; and “any other evidence of Mr. Beardslee’s

violent character to demonstrate the reasonableness of force used by the Defendant.” The

District Court conducted a hearing on the motion, and the defense called several County



                                            12
Sheriff’s Deputies to testify regarding whether they had adequately secured the crime

scene and whether they had “investigated” Cooksey’s claim of justifiable use of force.

¶34    Section 45-3-112, MCA, was enacted in 2009 and provides:

       When an investigation is conducted by a peace officer of an incident that
       appears to have or is alleged to have involved justifiable use of force, the
       investigation must be conducted so as to disclose all evidence, including
       testimony concerning the alleged offense and that might support the
       apparent or alleged justifiable use of force.

The District Court noted that in all criminal cases the prosecution has a long-established

duty to provide to the defense any exculpatory evidence in its possession. Brady v.

Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); State v. Ellison, 2012 MT 50, ¶ 15, 364

Mont. 276, 272 P.3d 646. State statute also imposes broad obligations on the prosecution

in all criminal cases to disclose evidence to the defense, § 46-15-322, MCA, and those

obligations extend to disclosure of all “material and information” held by staff members

and by any other persons who have “participated in the investigation or evaluation of the

case.” Section 46-15-322(4), MCA.

¶35    The District Court construed § 45-3-112, MCA, to reflect these established

obligations, and to require the prosecution to disclose any evidence it had that was

relevant to the defense of justifiable use of force. At the hearing on the defense motion,

the District Court stated:

       Effectively the defense argues that law enforcement has an independent
       duty under this set of statutes to conduct a separate investigation into the
       claim of self-defense. I guess I don’t go that far on my reading of the
       statute. It just appears to me that they’re obligated to conduct a thorough
       investigation, which may or may not include issues regarding self defense.

                                           13
      If they do gather evidence that is potentially exculpatory, or supports the
      affirmative defense of self-defense, then they had a duty to disclose it to the
      defense.

The District Court’s order further noted that evidence of aggressive or violent tendencies

of the decedent must have been known to Cooksey prior to the homicide before they

could be relevant, consistent with established Montana law. State v. Branham, 2012 MT

1, ¶ 10, 363 Mont. 281, 269 P.3d 891. The District Court required the prosecution to

produce the decedent’s criminal record for in-camera inspection.

¶36   The District Court refused to construe § 45-3-112, MCA, to impose any new and

independent duty for law enforcement to investigate cases involving justifiable use of

force. On appeal Cooksey does little to explain how § 45-3-112, MCA, requires or

supports a dismissal of the homicide charge against him. He points to nothing in the

language of the statute that requires that law enforcement conduct an independent

investigation for the defense in every justifiable use of force case and points to no

language requiring dismissal of charges.      He points to no actual or even potential

evidence that was relevant to justifiable use of force that was lost, withheld or not

discovered during the course of the investigation. He points to no classes of potential

evidence that contained information relevant to his defense.

¶37   The language of § 45-3-112, MCA, is plain and clear on its face. It requires an

officer conducting an investigation in a case involving the defense of justifiable use of

force to conduct that investigation so as to “disclose all evidence” (emphasis added) that

might support the defense.     This is consistent with the disclosure obligations upon


                                            14
prosecutors and law enforcement officers arising from the Brady case. It is consistent

with Montana statutory and case law. Section 45-3-112, MCA, plainly requires that

“evidence” that would support the defense of justifiable use of force must be made

available for disclosure to the defense. Cooksey has not pointed to any evidence that

would support his defense that was not disclosed.

¶38    The District Court’s construction of § 45-3-112, MCA, was a correct application

of the statute as enacted by the Legislature and we find no error.1

¶39    Issue Four: whether the prosecutor’s closing argument amounted to prosecutorial

misconduct.

¶40    This Court reviews a district court’s rulings on objections to closing argument

content for abuse of discretion. State v. Green, 2009 MT 114, ¶ 14, 350 Mont. 141, 205

P.3d 798.     Closing argument statements are considered in the context of the entire

argument, State v. Robideaux, 2005 MT 324, ¶ 15, 329 Mont. 521, 125 P.3d 1114. The

defendant must make a timely objection to closing argument statements or the objection

is deemed to be waived. State v. Racz, 2007 MT 244, ¶ 36, 339 Mont. 218, 168 P.3d 685.

We will undertake plain error review of closing argument objections not stated at trial if

we are persuaded that the prosecutor’s comments resulted in a manifest miscarriage of



1
  The dissent argues at length that § 45-3-112, MCA, imposes a special investigative duty
upon law enforcement officers to uncover evidence “not yet” in their possession,
applicable only to cases that do or might involve a claim of justifiable use of force. There
is nothing in the statute that covers evidence “not yet” in the possession of investigators
and it is far from clear how such evidence could even be identified. In the end, and
recognizing the many general rules of statutory construction, the dissent’s argument is
just that: an alternative way to construe the statute by adding certain concepts to it.
                                             15
justice, undermined the fundamental fairness of the trial, or compromised the integrity of

the judicial process. Racz, ¶ 36.

¶41    Cooksey points to two statements made during the prosecution’s closing

argument. The first:

       We certainly have chased our tails a bit over the last two weeks. But please
       remember that the defendant has an absolute right to go to trial and to be
       tried by his peers, you folks sitting here. He has that right no matter how
       much evidence there is against him. The defendant in a trial is not required,
       and especially in this trial, is not required to prove anything. It is solely the
       State’s burden to prove this case beyond a reasonable doubt.

Cooksey did not object to this comment at trial.              Cooksey also challenges the

prosecution’s last statement in closing, urging the jury: “Find this man guilty. Protect

society.   And protect your neighbors.”        The defense objected contemporaneously,

requesting that the jury be admonished to disregard the remark. The District Court

sustained the objection by admonishing the jury to “disregard that remark.”

¶42    As to the first remark concerning the volume of evidence, Cooksey contends that it

implied that he was abusing the system by exercising his right to a jury trial. He contends

in a brief footnote that this Court should consider this as “plain error” even though there

was no contemporaneous objection. We decline to do so. Cooksey’s brief contains no

cogent argument or analysis as to why plain error review should be invoked in this case.

We invoke plain error only sparingly, on a case-by-case basis, where failing to do so may

result in a manifest miscarriage of justice, may leave unsettled the fundamental fairness

of the trial, or may compromise the integrity of the judicial process. State v. West, 2008

MT 338, ¶ 23, 346 Mont. 244, 194 P.3d 683. We perceive no such situation in this case
                                              16
with regard to the cited remarks. See State v. Staat, 251 Mont. 1, 10, 822 P.2d 643, 648-

49 (1991) (prosecutor may comment on the volume of evidence).

¶43    The prosecutor’s last comment admonishing the jury to protect society and their

neighbors drew a prompt objection from the defense and a request that the jury be

admonished. The District Court did so, admonishing the jury to disregard the remark.

Prompt cautionary instructions can cure the prejudicial effect of a remark made in closing

argument when the jury is cautioned to disregard the statement. Ariegwe, ¶ 166; State v.

Dubois, 2006 MT 89, ¶ 61, 332 Mont. 44, 134 P.3d 82.

¶44    The District Court’s admonishment, together with the instructions given to the

jury, clearly undermines Cooksey’s contention that there was an abuse of discretion. The

District Court instructed the jury to decide the case uninfluenced by passion or prejudice,

and to not be biased against the defendant because he was arrested, charged or tried for

the offense because none of those facts is evidence of guilt. The District Court instructed

the jury that they may not be governed by sentiment, conjecture, sympathy, passions,

prejudice, public opinion or public feeling because both sides had the right to expect a

conscientious and dispassionate verdict, weighing the evidence and applying the law. The

District Court instructed the jury that the evidence of one witness was sufficient to prove

any fact, and that they were not to decide based upon the number of witnesses called.

The District Court instructed that the State has the burden to prove guilt beyond a

reasonable doubt; that the defendant is presumed innocent; and that the defendant is not

required to prove his innocence or even to present any evidence.



                                            17
¶45    Considering the relevant circumstances, Cooksey has not demonstrated that he is

entitled to a new trial because of the content of the closing argument.

                                     CONCLUSION

¶46    The motion for a new trial based on juror misconduct was properly denied. The

District Court had the discretion to exclude Cooksey’s proffered evidence regarding the

presence of a small amount of the drug Paxil in the decedent’s blood. The investigation

of the crime was conducted in compliance with § 45-12-112, MCA. Cooksey failed to

establish that the prosecution’s statements during closing argument constituted unfairly

prejudicial misconduct.

¶47    On June 24, 2011, Bobby Cooksey’s wife Debra appeared in this case through

counsel and moved to intervene in the appeal to raise issues concerning satisfaction of

restitution ordered as part of Bobby Cooksey’s sentence. This Court granted that motion

over the State’s objection that Debra Cooksey had no standing to intervene in Bobby

Cooksey’s appeal of his criminal conviction. The District Court determined that Debra

Cooksey failed to support her claim of ownership in the property or her claim that the

property was exempt from execution to satisfy the restitution owed by Bobby Cooksey.

Bobby Cooksey did not raise any issue on appeal concerning his sentence or the portion

of the sentence that required him to pay restitution. After further consideration this Court

has concluded that the motion to intervene was improvidently granted.

¶48    For the reasons stated above, the motion of Debra Cooksey to intervene is denied.




                                             18
¶49    The conviction and sentence are affirmed.



                                                  /S/ MIKE McGRATH


We concur:

/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ BRIAN MORRIS



Justice James C. Nelson, concurring in part and dissenting in part.

¶50    What follows are my views on the Court’s resolution of the present case and State

v. Mitchell, 2012 MT 227, ___ Mont. ___, ___ P.3d ___. Both Cooksey and Mitchell

argue the application of § 45-3-112, MCA, to the facts of their respective cases, and the

Assistant Attorneys General representing the State in these two cases respond to the

defendants’ arguments with somewhat overlapping, but nevertheless distinct analyses of

the statute. It thus facilitates my discussion to address both cases at once. In referring to

the Court’s Opinions, I shall cite either “Cooksey, ¶ ___” or “Mitchell, ¶ ___.”

¶51    I concur in the Court’s decision as to Issues One, Two, and Four of Cooksey (juror

misconduct, exclusion of the Paxil evidence, and prosecutorial misconduct, respectively).

However, regarding what went on in the church basement prior to voir dire, I believe

Cooksey raises credible concerns about the potential taint of the jury pool, and I thus

specially concur in this part of Issue One (Cooksey, ¶¶ 11-12, 14-17). As to Issue Three

of Cooksey and Issues One and Two of Mitchell, the Court resolves these issues based on


                                             19
its construction of § 45-3-112, MCA. In my view, the Court completely emasculates this

statute, and I thus dissent from these portions of the Cooksey and Mitchell decisions.

¶52    I shall address the jury matter in Cooksey first, followed by the statutory question

in both Cooksey and Mitchell.

                     I. Potential Taint of the Jury Pool in Cooksey

¶53    In resolving the “church basement” issue, the Court does not hold that the “circus

atmosphere” described by prospective juror Lurie was appropriate or harmless. Rather,

the Court concludes that there was no circus atmosphere in the first place. The Court

reaches this conclusion by discounting all of Lurie’s testimony, noting that the District

Court rejected Lurie’s version of events as not credible. Cooksey, ¶¶ 16-17.

¶54    I agree that Cooksey has not demonstrated any grounds for impugning the District

Court’s credibility determination. Lurie, however, was not the only witness to testify

regarding potentially prejudicial conversations among the venire.        Prospective juror

Newman testified that she was in the church basement with other veniremembers for

approximately one and a half to two hours. While there, she observed prospective juror

Simms “letting people know his thoughts on Cooksey’s case.” Simms was “talking loud

and making comments about Mr. Cooksey.” He expressed the view that what Cooksey

did was not right—that “it’s not right to shoot somebody in cold blood.” Juror Beres also

testified that Simms made comments to others in the church basement, although she

could not remember specifically what Simms said.

¶55    Hence, even if there was not a “circus atmosphere” in the church basement, there

is unrefuted testimony that at least one of the prospective jurors was discussing the case

                                            20
with other prospective jurors and expressing the view that Cooksey’s self-defense claim

lacked merit. Indeed, it would be naïve to assume that 80 individuals summoned for jury

duty and detained together for nearly two hours in a church basement would not discuss

the reason they were there and what they may or may not know about the case. If

nothing else, common sense dictates that when a group of ordinary citizens are called for

a particular purpose and then are put together in a room, more likely than not they are

going to discuss what they know about the purpose for which they were called and the

people involved. This natural tendency is exacerbated when the group includes one or

more loudmouths, such as Simms, who are more than willing to parade their “inside”

knowledge and self-inflated opinions about the case before their fellow citizens.

¶56    It is a fundamental tenet of our criminal justice system, and a matter of

constitutional law, that a person accused of a crime is entitled to a fair trial by an

“impartial jury.” State v. Kingman, 2011 MT 269, ¶ 18, 362 Mont. 330, 264 P.3d 1104;

U.S. Const. amends. VI, XIV; Mont. Const. art. II, §§ 17, 24. Indeed, “[t]he accused has

a fundamental right to have that most basic of all decisions (guilt or innocence) made by

an impartial jury.” State v. Good, 2002 MT 59, ¶ 65, 309 Mont. 113, 43 P.3d 948 (citing

Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642 (1961)). “It is incontrovertible

that jury impartiality goes to the very integrity of our justice system, and that the right to

an impartial jury is so essential to our conception of a fair trial that its violation cannot be

considered harmless error.” State v. Herrman, 2003 MT 149, ¶ 22, 316 Mont. 198, 70

P.3d 738; accord State v. Lamere, 2005 MT 118, ¶ 24, 327 Mont. 115, 112 P.3d 1005.



                                              21
¶57    It is also well-established that “the evidence developed against a defendant shall

come from the witness stand in a public courtroom where there is full judicial protection

of the defendant’s right of confrontation, of cross-examination, and of counsel.” Parker

v. Gladden, 385 U.S. 363, 364, 87 S. Ct. 468, 470 (1966) (per curiam) (internal quotation

marks omitted); accord Putro v. Baker, 147 Mont. 139, 148, 410 P.2d 717, 722 (1966)

(“The function of the jury is to decide the facts of the case only on evidence introduced at

trial.”). Extraneous influences on jurors, such as opinions about the defendant’s guilt or

reputation, can be so prejudicial as to deprive the defendant of his right to a fair trial.

Parker, 385 U.S. at 363-66, 87 S. Ct. at 470-71; Tong Xiong v. Felker, 681 F.3d 1067,

1075-76 (9th Cir. 2012); State v. McMahon, 271 Mont. 75, 79, 894 P.2d 313, 316 (1995);

State v. Holmes, 207 Mont. 176, 182-83, 674 P.2d 1071, 1074 (1983). “ ‘We cannot be

too strict in guarding trials by juries from improper influences.’ ” McMahon, 271 Mont.

at 80, 894 P.2d at 316 (quoting Putro, 147 Mont. at 148, 410 P.2d at 722).

¶58    Given the importance of safeguarding jurors from improper influences, the District

Court’s failure to admonish the veniremembers not to discuss any knowledge or opinions

they might have about Cooksey’s case is perplexing. In its order denying Cooksey’s

motion for a new trial, the District Court explained its reasons for holding the prospective

jurors in the church basement. Due to the diminutive size of the courtroom and the jury

room, the size of the prospective jury pool, and the likely media and public presence, the

District Court reasoned that “staging or housing” the prospective jurors in the church

basement (with bailiffs in attendance) would provide some measure of comfort and

security to the veniremembers while at the same time providing accommodation for the

                                            22
attorneys, the prospective witnesses, the victim’s and the defendant’s families, the public,

and the media. The District Court also reasoned that this approach would minimize

potential communication and contact between the prospective jurors and others.

¶59    Yet, just as important is the need to minimize potential communication about the

case among the veniremembers themselves—a consideration the District Court failed to

address. In its order, the court observed that neither the prosecution nor the defense had

asked the court to admonish the prospective jurors not to speak about the case or voice

their opinions prior to the commencement of voir dire. The court also opined that such

an admonishment “is not mandated by any statute, case, or rule to this Court’s

knowledge.” Contrary to the District Court’s reasoning, however, “the role of the trial

judge is to regulate the proceedings and ensure that the trial is fair.” State v. Price, 2006

MT 79, ¶ 21, 331 Mont. 502, 134 P.3d 45; see also e.g. State v. Couture, 2010 MT 201,

¶ 78, 357 Mont. 398, 240 P.3d 987 (the trial court has an affirmative constitutional

obligation to bring the defendant to trial in a timely manner; thus, the court may set

deadlines and hold the parties strictly to those deadlines); State v. Forsyth, 233 Mont.

389, 418-19, 761 P.2d 363, 381-82 (1988) (on questions of venue, the trial court must

“take . . . action designed to insure that a fair trial may be had”). We have confirmed that

the trial court should instruct on all essential questions of law and, to that end, “may offer

its own instructions.” State v. Sheppard, 253 Mont. 118, 123, 832 P.2d 370, 373 (1992).

It follows, then, that a trial court is not barred from taking action, sua sponte, designed to

safeguard the jury from improper influences. In point of fact, the Supreme Court has

made clear that while it is virtually impossible to shield jurors from every contact or

                                             23
influence that might theoretically affect their vote, due process requires the trial court to

take steps “to prevent prejudicial occurrences and to determine the effect of such

occurrences when they happen.” Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940,

946 (1982). Along these same lines, this Court has advised trial courts to instruct

prospective jurors not to volunteer the substance of any comments or opinions they may

have about the parties. McMahon, 271 Mont. at 81, 894 P.2d at 317.

¶60    The District Court dismissed our McMahon advisement as applicable only “during

the course of voir dire.” Similarly, the State argues on appeal that Simms’ remarks do

not warrant reversal because they were made prior to voir dire. Such reasoning elevates

form over substance1 and is plainly inconsistent with the principles discussed in Smith

and McMahon. Whether veniremembers are tainted by improper comments from other

prospective jurors during voir dire or while waiting two hours in a church basement for

voir dire to begin, the result is the same: the accused’s fundamental right to be tried by

an impartial jury is infringed. Contrary to the State’s arguments, once the skunk is in the

barn, one can neither ignore nor early on forget the stink.

¶61    Therefore, I would admonish the trial courts—to the extent they are not already

doing so—to sua sponte instruct the venire at the outset, and reinstruct the jury when it is

sworn, not to discuss anything pertaining to the case unless it is received in evidence at

the trial and the case is submitted to the jury for deliberation. Bailiffs also should be

instructed to strictly enforce this rule and to promptly report violations of the same to the

presiding judge. These sorts of instructions in the present case might have forestalled the

       1
           “The law respects form less than substance.” Section 1-3-219, MCA.
                                             24
problems with juror Beres injecting her anecdotal knowledge about Beardslee into the

jury’s deliberations (Cooksey, ¶¶ 13, 18-22) and Simms shooting off his mouth about

Cooksey in the church basement (Cooksey, ¶¶ 11-12, 14-17).

¶62    All of that said, I am not persuaded on the record here that Simms’ comments

were so “egregious and prejudicial” as to irreparably “poison[ ]” the entire venire.

McMahon, 271 Mont. at 81, 894 P.2d at 317. I do conclude, however, in light of the

foregoing discussion, that the District Court’s failure to instruct the venire is not only bad

practice, but also runs a real risk of depriving a defendant of the right to a fair trial and,

thus, should be categorically rejected.

           II. Interpretation of § 45-3-112, MCA, in Cooksey and Mitchell

                                     A. Introduction

¶63    Section 45-3-112, MCA, states as follows:

              Investigation of alleged offense involving claim of justifiable use
       of force. When an investigation is conducted by a peace officer of an
       incident that appears to have or is alleged to have involved justifiable use of
       force, the investigation must be conducted so as to disclose all evidence,
       including testimony concerning the alleged offense and that might support
       the apparent or alleged justifiable use of force.

Cooksey and Mitchell contend that law enforcement failed to comply with this statute.

¶64    In Cooksey’s case, Cooksey called 911 immediately after shooting Beardslee. He

told the dispatcher that he had shot Beardslee because Beardslee threatened to kill him.

The dispatcher relayed this information to responding officers. Yet, despite Cooksey’s

explanation, two of the deputy sheriffs later admitted under questioning that they had

done “nothing” to investigate whether Cooksey acted in self-defense. The State points


                                             25
out that the Musselshell County Sheriff’s Office ultimately referred the investigation of

the shooting to the Montana State Division of Criminal Investigation (DCI) and that DCI

then became the “lead” investigating agency. It seems the State’s position is that the

responding deputies had no duty to comply with the statute because they were not the

“primary” or “lead” investigators—an absurd argument given that (1) the deputies were

the only investigators at that point and (2) the statute makes no such distinction but,

instead, applies to all “investigation[s]” conducted by “peace officer[s].” In any event,

the State does not identify any self-defense investigation by DCI officers either.

Consequently, Cooksey maintains that because law enforcement did “nothing” to

investigate his claim of self-defense, evidence of Beardslee’s Paxil use was not

uncovered until a month before trial, which in turn culminated in the District Court’s

exclusion of the evidence based on the prosecution’s (somewhat ironic, if not brazen)

argument of unfair surprise. See Cooksey, ¶¶ 26-28.

¶65    In Mitchell’s case, Mitchell and Corbin were involved in a physical altercation

during which Mitchell saw Corbin reach for what Mitchell thought was a knife. Mitchell

yelled to a bystander to call the police, saying that Corbin had tried to pull a knife on him.

The bystander called 911, reported the fight and its location, and advised the dispatcher

that a knife was involved. Officers quickly arrived at the scene and broke up the fight.

Mitchell told the officers that Corbin had reached for a knife in his back pocket and that

Mitchell had responded by “putting Corbin on the ground and holding him there.” In

talking with Corbin, the officers discovered that Corbin had a Leatherman or Gerber

multi-tool in a case attached to his belt. One of the tools in a multi-tool is a small blade,

                                             26
which can be used as a weapon. Corbin told the officers that he had reached for the

multi-tool during the altercation in an attempt to “bluff” Mitchell, but Corbin denied that

he had removed the multi-tool from its case. The officers saw the multi-tool on Corbin’s

belt and knew what it was, but they neither confiscated it nor took any pictures of it. As

they later explained at trial, the officers did not believe the multi-tool was “an issue” in

their investigation, nor did they believe that their investigation involved securing

evidence relating to Mitchell’s allegation of self-defense. Mitchell contends the officers’

failure to inspect, take pictures of, or confiscate Corbin’s weapon violated § 45-3-112,

MCA, and resulted in the loss of “key evidence” to his affirmative defense.

                                 B. Rules of Construction

¶66    The initial step in analyzing these claims is to determine what § 45-3-112, MCA,

actually requires. In construing the statute, I am guided by certain well-settled rules of

statutory construction.

¶67    First, and especially relevant to this case, we presume that the Legislature does not

pass useless or meaningless legislation. State v. Johnson, 2012 MT 101, ¶ 20, 365 Mont.

56, 277 P.3d 1232; Hendershott v. Westphal, 2011 MT 73, ¶ 20, 360 Mont. 66, 253 P.3d

806; Mont. Sports Shooting Assn. v. State, 2008 MT 190, ¶ 15, 344 Mont. 1, 185 P.3d

1003; see also § 1-3-232, MCA (“An interpretation which gives effect is preferred to one

which makes void.”). “In construing a statute, this Court presumes that the legislature

intended to make some change in existing law by passing it.” Cantwell v. Geiger, 228

Mont. 330, 333-34, 742 P.2d 468, 470 (1987); accord Mont. Sports Shooting, ¶ 15. We

therefore reject an interpretation that would render a statute an “idle act[ ]” or that treats a

                                              27
statute “as mere surplusage.” Formicove, Inc. v. Burlington Northern, Inc., 207 Mont.

189, 194, 673 P.2d 469, 471 (1983); accord Mont. Sports Shooting, ¶ 15. We harmonize

statutes relating to the same subject in order to give effect to each statute. Johnson, ¶ 20;

Hendershott, ¶ 20; § 1-2-101, MCA.

¶68    Second, “[i]n interpreting a statute, we look first to the plain meaning of the words

it contains. Where the language is clear and unambiguous, the statute speaks for itself

and we will not resort to other means of interpretation. In this regard, words used by the

legislature must be given their usual and ordinary meaning.” Rocky Mt. Bank v. Stuart,

280 Mont. 74, 80, 928 P.2d 243, 246-47 (1996) (citations omitted); see also City of

Missoula v. Cox, 2008 MT 364, ¶ 9, 346 Mont. 422, 196 P.3d 452 (“Whenever the

language of a statute is plain, simple, direct and unambiguous, it does not require

construction, but construes itself.” (brackets and internal quotation marks omitted));

§ 1-2-106, MCA (“Words and phrases used in the statutes of Montana are construed

according to the context and the approved usage of the language . . . .”).

¶69    Third, in the construction of a statute, this Court’s job is “simply to ascertain and

declare what is in terms or in substance contained therein, not to insert what has been

omitted or to omit what has been inserted.” Section 1-2-101, MCA. As a corollary to

this rule, we may not create an ambiguity where none exists, nor may we rewrite a

statute, by ignoring clear and unambiguous language, in order to accomplish what we

may feel is a more sensible or palatable purpose. State ex rel. Palagi v. Regan, 113

Mont. 343, 351-52, 126 P.2d 818, 824 (1942); Dodd v. City of East Helena, 180 Mont.

518, 521-22, 591 P.2d 241, 243 (1979); E.W. v. D.C.H., 231 Mont. 481, 489, 754 P.2d

                                             28
817, 821 (1988); State v. Thompson, 243 Mont. 28, 33, 792 P.2d 1103, 1107 (1990),

overruled on other grounds, State v. Spreadbury, 2011 MT 176, ¶ 10, 361 Mont. 253,

257 P.3d 392; Bank of America v. Ivey, 2010 MT 131, ¶ 10, 356 Mont. 388, 234 P.3d

867; cf. Heggem v. Capitol Indem. Corp., 2007 MT 74, ¶ 22, 336 Mont. 429, 154 P.3d

1189.

                                   C. Statutory Analysis

¶70     The State contends, and the Court likewise concludes, that § 45-3-112, MCA, is

clear and unambiguous and, therefore, that the legislative intent can be determined by the

plain meaning of the words used in the statute. Cooksey, ¶¶ 32, 37. I agree.

¶71     Again, § 45-3-112, MCA, states:

               Investigation of alleged offense involving claim of justifiable use
        of force. When an investigation is conducted by a peace officer of an
        incident that appears to have or is alleged to have involved justifiable use of
        force, the investigation must be conducted so as to disclose all evidence,
        including testimony concerning the alleged offense and that might support
        the apparent or alleged justifiable use of force.

¶72     Of all the proffered constructions of this language in the two cases—by Cooksey,

by Mitchell, by the Assistant Attorneys General, and by the Court—the Court’s is the

most extreme and implausible. The Court says that § 45-3-112, MCA, does not impose

any new duty on law enforcement, but instead merely “reflects long-established

obligations regarding thorough and complete police investigations and requirements that

the prosecution disclose any evidence in the government’s possession that is relevant to

the defense of justifiable use of force.” Mitchell, ¶ 16; see also Cooksey, ¶¶ 34-35, 37-38

(the statute reflects the “established” obligations of “prosecutors and law enforcement” to


                                              29
“ma[k]e available for disclosure” any exculpatory evidence “held by” or “in [the]

possession” of the government). Not even the Assistant Attorneys General arguing the

State’s position in these cases propose such a blatant rewriting of the statute.

¶73    We all know that the prosecution has an affirmative duty under the Due Process

Clause to disclose exculpatory and impeachment evidence to the defense. This has been

the law for nearly half a century. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,

1196-97 (1963); Kyles v. Whitley, 514 U.S. 419, 432-33, 115 S. Ct. 1555, 1565 (1995);

Benn v. Lambert, 283 F.3d 1040, 1052-53 (9th Cir. 2002); State v. St. Dennis, 2010 MT

229, ¶¶ 46-47, 358 Mont. 88, 244 P.3d 292; State v. Ellison, 2012 MT 50, ¶¶ 15-16, 364

Mont. 276, 272 P.3d 646. The disclosure obligation has also been a statutory requirement

for several decades. See § 95-1803, RCM (enacted 1967); §§ 46-15-301, -302, MCA

(1979 to 1985); § 46-15-322, MCA (1985 to present). The obligation applies not only to

prosecutors, but also to persons who have participated in the investigation or evaluation

of the case. Kyles, 514 U.S. at 437-38, 115 S. Ct. at 1567-68; § 46-15-322(4), MCA.

¶74    Section 45-3-112, MCA, in contrast, does not mention “prosecutors.” Rather, the

statute refers specifically to “a peace officer.” It is axiomatic that this Court may not

insert the word “prosecutors” into the statute, § 1-2-101, MCA, and the Court is wrong

for doing so. Furthermore, it strains credulity beyond the breaking point to conclude, as

the Court does, that the Legislature enacted § 45-3-112, MCA, out of the blue in 2009

merely to “reflect” disclosure requirements which already existed, and had been in place

for well over 40 years, under Brady and § 46-15-322, MCA. Indeed, the bill by which

§ 45-3-112, MCA, was enacted articulates what the statute’s purpose is, and it is not to

                                             30
“reflect” extant disclosure requirements. Rather, “the purpose of [§§ 45-3-110, -111, and

-112, MCA] is to clarify and secure the ability of the people to protect themselves.”2

Laws of Montana, 2009, ch. 332, preamble. The Court’s interpretation runs contrary not

only to this stated purpose, but also to the presumption that the Legislature does not pass

useless or meaningless legislation.     Johnson, ¶ 20; Hendershott, ¶ 20; Mont. Sports

Shooting, ¶ 15. “Where there are several provisions or particulars, such a construction is,

if possible, to be adopted as will give effect to all.” Section 1-2-101, MCA. “An

interpretation that gives effect is always preferred to one that makes a statute void or

treats a statute as mere surplusage.” Formicove, 207 Mont. at 194, 673 P.2d at 471.

Regrettably, the Court ignores these principles in the present case.

¶75    Instead of duplicating extant disclosure requirements applicable to evidence which

is already “held by” or “in the possession” of prosecutors and investigators, the statute

imposes a new duty on peace officers to uncover evidence which is not yet in the

possession of law enforcement or prosecutors—as evidenced by the statute’s focus on the

investigation. First off, it is important to note that the statute is triggered “[w]hen an

investigation is conducted by a peace officer of an incident that appears to have or is

alleged to have involved justifiable use of force.”      The statute does not impose an

affirmative obligation to commence an investigation, and I thus disagree with Cooksey’s

and Mitchell’s contentions that the statute creates a duty to investigate. If a person walks

up to Officer Smith and says, “I just shot Joe in self-defense,” the officer may have a duty

       2
        Section 45-3-110, MCA, concerns the duty to retreat or summon help when
threatened with bodily injury or loss of life. Section 45-3-111, MCA, grants authority to
openly carry and display a weapon.
                                             31
to investigate the incident, but this statute is not the source of that duty. What the statute

says is this: When a peace officer conducts an investigation of an incident, and the

incident appears to have involved, or is alleged to have involved, justifiable use of force,

then the statute is triggered.

¶76    The statute directs the peace officer who finds himself in this situation to conduct

the investigation in a particular way. Specifically, “the investigation must be conducted

so as to disclose all evidence, including testimony concerning the alleged offense and that

might support the apparent or alleged justifiable use of force.” Thus, while the statute

does not impose a duty to commence an investigation, it does impose a duty where an

investigation has been commenced, and the duty is to conduct the investigation as the

statute specifies. Indeed, the State concedes in both Cooksey and Mitchell that the statute

imposes “the duty to conduct [the] criminal investigation in a way that will result in full

disclosure to the defendant of all ‘evidence.’ ” The question is: What “evidence” is the

statute referring to?

¶77    In the State’s view, the statute is referring to evidence that is “generated” or

“discovered” during the investigation and in the State’s possession. This interpretation,

however, like the Court’s construction, would render the statute “mere surplusage” and

an “idle act.” Formicove, 207 Mont. at 194, 673 P.2d at 471. Full disclosure of all

evidence generated or discovered during an investigation and in the State’s possession is

already required by Brady and § 46-15-322, MCA. We must harmonize §§ 45-3-112 and

46-15-322, MCA, to give effect to each, Johnson, ¶ 20; Hendershott, ¶ 20; § 1-2-101,



                                             32
MCA, and we must presume that in passing § 45-3-112, MCA, the Legislature “intended

to make some change in existing law,” Cantwell, 228 Mont. at 334, 742 P.2d at 470.

¶78    Section 45-3-112, MCA, is not part of the discovery statutes (Title 46, chapter 15,

part 3, MCA). It is part of the justifiable use of force statutes (Title 45, chapter 3, MCA).

As noted, it is one of three statutes whose stated “purpose . . . is to clarify and secure the

ability of the people to protect themselves.” Laws of Montana, 2009, ch. 332, preamble.

The statute’s focus is on “the investigation,” which must be conducted so as to “disclose

all evidence.” To investigate is “to observe or study by close examination and systematic

inquiry.” Merriam-Webster’s Collegiate Dictionary 616 (10th ed., Merriam-Webster

1997); accord Black’s Law Dictionary 902 (Bryan A. Garner ed., 9th ed., Thomson

Reuters 2009) (“[t]o inquire into (a matter) systematically”). To disclose is “to expose to

view” or “to make known or public.” Merriam-Webster’s Collegiate Dictionary 330; cf.

Black’s Law Dictionary 531 (disclosure is “[t]he act or process of making known

something that was previously unknown; a revelation of facts.”). Hence, the statute’s

requirement is not merely that the peace officer “expose” or “make known” the evidence

which he happens to have “generated” or “discovered” during his investigation. Rather,

it is that the peace officer affirmatively “generate” or “discover” (to borrow the Attorney

General’s words) all of the evidence which may exist.

¶79    In other words, the statute requires the peace officer to conduct his investigation so

as to expose or make known “all” evidence—including evidence that the State has not yet

uncovered and does not yet have in its possession. The Court asserts that “it is far from

clear how such evidence could even be identified.” Cooksey, ¶ 38 n. 1. I disagree. The

                                             33
statute says exactly how such evidence is to be identified: through the peace officer’s

“investigation,” which must be conducted so as to expose or make known “all” evidence.

That is the plain and obvious purpose of the statute, given its focus on “the investigation”

and its use of the term “all evidence.” There is no other reason why the Legislature

enacted this statute and thus effected a change in existing law by doing so. When an

incident involves or appears to involve justifiable use of force, the Legislature has

decided, as a matter of public policy, that an investigating peace officer must tailor his

investigation so that “all” evidence, including testimony concerning the alleged offense

and that might support the apparent or alleged justifiable use of force, is discovered,

exposed, and made known. Presumably, any peace officer who conducts a thorough

investigation will uncover such evidence anyway. But § 45-3-112, MCA, now makes

this a matter of statutory duty. Once such evidence is uncovered pursuant to § 45-3-112,

MCA, the State must then disclose it to the defense pursuant to § 46-15-322, MCA.3

                         D. The State’s Additional Arguments

¶80    Besides presenting its argument (with which I disagree) as to the “plain reading”

of § 45-3-112, MCA, the State argues two other theories for why the statute should not be

interpreted to impose any new duties on peace officers. The State’s arguments in this



       3
         While the legislative intent is, in my view, quite clear, “disclose” arguably was
not the best term for the Legislature to use in § 45-3-112, MCA, given that this is a term
of art generally associated with Brady and the discovery statutes. Perhaps stating that the
investigation must be conducted so as to “expose,” “reveal,” “uncover,” or “discover” all
evidence would have effectuated the Legislature’s purpose without inviting the argument,
which this Court now adopts, that § 45-3-112, MCA, merely “reflects” decades-old
disclosure requirements which already exist under Brady and § 46-15-322, MCA.
                                            34
regard involve considerations extrinsic to the statutory language. I believe it is important

to acknowledge these theories and explain why I disagree with them as well.

               1. The Role of Peace Officers in the Adversarial System

¶81    First, the State resists the notion that peace officers should have any duty to

investigate on behalf of the defense. The State cites a slew of this Court’s cases which

have recognized that police officers have no affirmative duty to collect exculpatory

evidence and are not required to assist the defendant with procuring evidence on his own

behalf. See State v. Heth, 230 Mont. 268, 271-72, 750 P.2d 103, 105 (1988); State v.

Clark, 234 Mont. 222, 225, 762 P.2d 853, 855-56 (1988); State v. Sadowski, 247 Mont.

63, 79, 805 P.2d 537, 547 (1991), overruled on other grounds, State v. Ayers, 2003 MT

114, ¶¶ 74-76, 315 Mont. 395, 68 P.3d 768; State v. Patton, 280 Mont. 278, 284-85, 930

P.2d 635, 638-39 (1996); State v. Belgarde, 1998 MT 152, ¶ 16, 289 Mont. 287, 962 P.2d

571; State v. Saxton, 2003 MT 105, ¶ 32, 315 Mont. 315, 68 P.3d 721; State v. Seiffert,

2010 MT 169, ¶ 15, 357 Mont. 188, 237 P.3d 669.

¶82    As an initial observation, the State’s citation of these cases serves only to bolster

my conclusions concerning § 45-3-112, MCA. First, each of the foregoing cases was

decided under pre-2009 law. As such, they represent the law as it existed in 2009 when

the Legislature enacted § 45-3-112, MCA. We noted in Heth that police officers “have

no affirmative duty to gather [exculpatory] evidence absent express statutory mandate.”

230 Mont. at 272, 750 P.2d at 105 (emphasis added). Second, in construing a statute, this

Court presumes “that the Legislature acted with deliberation and with full knowledge of

all existing laws on a subject,” State v. Brown, 2009 MT 452, ¶ 10, 354 Mont. 329, 223

                                            35
P.3d 874, and “that the legislature intended to make some change in existing law by

passing [the statute],” Cantwell, 228 Mont. at 333-34, 742 P.2d at 470. It follows, then,

that the Legislature intended to change the law reflected in the foregoing cases cited by

the State, such that where police officers before did not have a duty to collect exculpatory

evidence or assist the defendant with procuring evidence on his own behalf, they now

have a duty to conduct their investigations (in cases involving justifiable use of force) so

as to discover, expose, and make known all such evidence.

¶83    I appreciate the premise, implicit in the State’s argument, that our criminal justice

system is based on the adversarial model, and that it is generally up to a criminal

defendant to discover and gather her own evidence in support of a self-defense claim.

There are exceptions to the adversarial nature of our system, however—the disclosure

requirements of Brady being one example. “By requiring the prosecutor to assist the

defense in making its case, the Brady rule represents a limited departure from a pure

adversary model.” United States v. Bagley, 473 U.S. 667, 675 n. 6, 105 S. Ct. 3375, 3380

n. 6 (1985). The rationale is that “the prosecutor’s role transcends that of an adversary:

he ‘is the representative not of an ordinary party to a controversy, but of a sovereignty . . .

whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice

shall be done.’ ” Bagley, 473 U.S. at 675 n. 6, 105 S. Ct. at 3380 n. 6 (ellipses in

original) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935));

accord State ex rel. Fletcher v. Nineteenth Jud. Dist. Ct., 260 Mont. 410, 415, 859 P.2d

992, 995 (1993) (“[A] prosecutor should seek justice and not simply an indictment or a

conviction.”). Tellingly, the State cites no provision of law precluding the Legislature

                                              36
from modifying the adversarial system—in a way similar to Brady and § 46-15-322,

MCA—such that peace officers are required to essentially assist the defendant with the

investigation of cases involving justifiable use of force.

¶84    The State notes that the investigation of crimes by law enforcement necessarily

involves “judgment,” “discretion,” and “latitude.” That may be true most of the time;

however, the Legislature has lessened the extent of that discretion and latitude when it

comes to cases involving apparent or alleged justifiable use of force, and has directed

peace officers specifically how their investigations are to be conducted in such cases. At

bottom, the State’s arguments regarding the appropriate duties of peace officers in our

adversarial system are more properly addressed to the Legislature, not this Court. As the

State well knows, the role of the Judicial Branch is to interpret and apply the statutes as

written and consistent with legislative intent. Sections 1-2-101, -102, MCA. It is not our

prerogative to assume the role of pseudo-legislators and manipulate clear statutory

mandates in order to achieve some presumed greater good. When we engage in such

activity, it only gives traction to those who would criticize courts and judges for rewriting

the laws that a coordinate branch of government has enacted.

                            2. The Remarks of Two Senators

¶85    The State’s second argument is premised on remarks made by two senators at a

subcommittee hearing in March 2009. The State explains that House Bill 228 (HB 228),

introduced during the 2009 legislative session, was a rather controversial bill dealing with

gun rights and the justifiable use of force in numerous respects. See Laws of Montana,

2009, ch. 332 (titled “An Act Preserving and Clarifying Laws Relating to the Right of

                                             37
Self-Defense and the Right to Bear Arms . . . .”). The bill had been introduced, but not

passed, during the previous two legislative sessions. See HB 693 (2005); HB 340 (2007).

When HB 228 came before the 2009 Senate Judiciary Committee, that body appointed a

three-member subcommittee which, according to the State, “substantially rewrote the

original bill.” I note, however, that the section of HB 228 which ultimately became

§ 45-3-112, MCA, was not rewritten in any way material to this case. In fact, essentially

the same language was used in the corresponding sections of HB 693 (2005) and HB 340

(2007). Each of the three bills stated that “the investigation [of an incident involving

self-defense/justifiable use of force] must be conducted so as to disclose all evidence.”

¶86     In any event, the three-member subcommittee consisted of Senators Shockley,

Jent, and McGee. During the subcommittee’s March 20, 2009 hearing, Senator Jent

opined that the section of HB 228 which later became § 45-3-112, MCA, “is duplicative

of current law, Brady versus Maryland and 46-15-323 [sic] . . . because they already got

to give you evidence that would get you off now under constitutional precedent and under

the Code.” Senator Jent thus proposed that this section be stricken from the bill. In

response, however, Senator Shockley argued that while the section is “poorly worded”

and “say[s] what’s already in the Code,” it “doesn’t hurt nothing.” From this snippet of

discussion among two senators in a subcommittee hearing, the State leaps to the

conclusion that “[t]he legislators voting for this bill did not believe they were effecting a

sea change in the law requiring law enforcement officers to take the place of defense

investigators . . . .”



                                             38
¶87    There are three reasons why I find this argument to be wholly unpersuasive. First

of all, the State candidly admits that this argument is presented only “[t]o the extent this

Court determines the statutory language is not clear and unambiguous.” And, as the State

points out elsewhere in its briefs, the statutory language is plain, clear, and unambiguous.

Pursuant to our rules of construction, “[w]here the language is clear and unambiguous,

the statute speaks for itself and we will not resort to other means of interpretation.”

Rocky Mt. Bank, 280 Mont. at 80, 928 P.2d at 246; accord Cooksey, ¶ 32. Hence, there is

no reason here to consider the remarks of two senators in a subcommittee hearing.

¶88    Second, the State’s suggestion that we should attribute dispositive significance to

such remarks presents separation-of-powers concerns. As we all know, “[t]he power of

the government of this state is divided into three distinct branches—legislative,

executive, and judicial,” and “[n]o person or persons charged with the exercise of power

properly belonging to one branch shall exercise any power properly belonging to either of

the others . . . .” Mont. Const. art. III, § 1. Equally fundamental is the principle that “[i]t

is emphatically the province and duty of the judicial department to say what the law is.”

Marbury v. Madison, 5 U.S. 137, 177 (1803); accord Mont. Petroleum Tank Release

Compen. Bd. v. Crumleys, Inc., 2008 MT 2, ¶ 57, 341 Mont. 33, 174 P.3d 948

(“interpreting and upholding the law” is a “constitutionally designated role[ ]” of the

courts); Best v. Police Dept. of Billings, 2000 MT 97, ¶ 16, 299 Mont. 247, 999 P.2d 334

(the doctrine of separation of powers between branches of government is “[c]losely

related” to the fundamental principle that “it is the province and duty of the judiciary ‘to

say what the law is’ ”). What these principles mean here is that while it is the province of

                                              39
legislators to enact the laws, it is the province of judges to interpret them. Regardless of

what Senators Shockley and Jent may have said about § 45-3-112, MCA, their views do

not dictate the meaning of the statutory language that was actually used and adopted by

the Legislature. As a matter of constitutional law, that determination is made by this

Court applying our rules of statutory construction, and it is based on what the statute

actually says, not what we want it to say or what others may have conjectured it says.

The statute’s plain language controls, and legislative history cannot be used to show that

an apparently clear and unambiguous text does not mean what it says. Johnson, ¶ 26;

State v. Merry, 2008 MT 288, ¶ 12, 345 Mont. 390, 191 P.3d 428.

¶89    Third, it is preposterous, quite frankly, to suggest that the remarks of 2 senators

during a subcommittee hearing represent what the other 148 members of the Legislature

“believed” when they voted on the bill. We do not know which other senators and

representatives, if any (besides Senator McGee), were aware of Senator Shockley’s and

Senator Jent’s views. Nor do we know whether any senators and representatives agreed

with those views. Indeed, it is entirely possible—if not more likely—that some of the

senators and representatives who voted for the bill agreed with the views of Gary Marbut,

the self-professed “primary developer” of HB 228 and the legislation’s chief proponent.

Marbut appeared before the House and Senate Judiciary Committees. In addition to his

verbal remarks in support of the bill, Marbut provided legislators with a typewritten,

section-by-section explanation of the bill’s provisions. That document is included as

Exhibit 3 to the House Judiciary Committee’s January 22, 2009 Minutes. Regarding the

section that ultimately became § 45-3-112, MCA, Marbut explained:

                                            40
       [This section] requires that investigators look for and collect all evidence,
       including evidence that could exonerate a person claiming self-defense.
       Investigators say that this need is already included in their professional
       standards for investigation. If that is so, they shouldn’t object to this
       requirement being placed in statute, another clarification needed in existing
       law. Further, citizens shouldn’t be required to rely on changeable
       occupational standards drawn by un-elected organizations of public
       employees in order for citizens to stay out of prison.

Clearly, the Court’s construction of § 45-3-112, MCA, is contrary to what the “primary

developer” of HB 228 had in mind. Of course, just as we do not know how many

legislators were aware of and subscribed to the views of Senators Shockley and Jent, we

do not know how many legislators read Marbut’s explanation and “believed” that it

reflected the true meaning of § 45-3-112, MCA. And that points up the futility of

attempting to discern statutory meaning from the various, and often times inconsistent,

comments and opinions offered by legislators, proponents, and opponents during

committee hearings: It is utterly impossible to discern who heard them, who agreed with

them, and whether they represented the “beliefs” of those who voted for the bill.

¶90    In any event, and more to the point, what the legislators “believed” is not the issue.

The Montana Constitution gives legal effect to the “laws” the Legislature enacts, Mont.

Const. art. V, § 11(1), not the personal beliefs of its members. Cf. Graham County Soil

& Water Conserv. Dist. v. United States ex rel. Wilson, ___ U.S. ___, 130 S. Ct. 1396,

1411 (2010) (Scalia, J., concurring in part and concurring in the judgment) (“The

Constitution gives legal effect to the ‘Laws’ Congress enacts, Art. VI, cl. 2, not the

objectives its Members aimed to achieve in voting for them.”). The intent of those laws

is manifested in the text of the bills which the majority of the legislators voted to enact,


                                             41
not in the audio recordings of off-the-cuff remarks made by two senators during a

subcommittee hearing. 4 Mont. Const. art. V, § 11(1); § 1-2-101, MCA; Johnson, ¶ 26.

¶91    In sum, § 45-3-112, MCA, clearly and unambiguously provides that when an

incident involves or appears to involve justifiable use of force, a peace officer who is

investigating the incident must conduct the investigation so that all evidence, including

testimony concerning the alleged offense and that might support the apparent or alleged

justifiable use of force, is disclosed, i.e., discovered, exposed, and made known. I now

consider the statute’s application to Cooksey’s and Mitchell’s cases.

                                      E. Application

¶92    There is no dispute that Cooksey and Mitchell “alleged” justifiable use of force.

Officers were aware from the outset that Cooksey and Mitchell claimed they had acted in

self-defense. Thus, the statute was triggered in both cases. The question is whether the

investigating officers conducted their investigations so as to disclose all evidence that

might support the alleged justifiable use of force.


       4
         For this reason, I disagree with this Court’s practice of considering statements by
proponents of legislation, which we have done even without a threshold determination
that the statute at issue is ambiguous. See e.g. Thornton v. Flathead County, 2009 MT
367, ¶ 20, 353 Mont. 252, 220 P.3d 395 (citing a portion of the legislative record
containing the statements of a lobbyist regarding the meaning of the legislation); Tally
Bissell Neighbors, Inc. v. Eyrie Shotgun Ranch, LLC, 2010 MT 63, ¶ 24, 355 Mont. 387,
228 P.3d 1134 (citing two portions of the legislative record containing statements by
various lobbyists—including, notably, Gary Marbut); Grenz v. Mont. Dept. of Nat. Res.
& Conserv., 2011 MT 17, ¶ 26, 359 Mont. 154, 248 P.3d 785 (citing a portion of the
legislative record containing statements by various lobbyists); CBI, Inc. v. McCrea, 2012
MT 167, ¶ 26, 365 Mont. 512, ___ P.3d ___ (Baker, J., dissenting) (citing statements by
various proponents). Even if a lobbyist’s views and expectations influence legislators’
“belief” as to what certain legislation does or does not mean or what the legislation will
or will not accomplish, it is ultimately the language of the statute that controls.
                                             42
¶93    In Cooksey’s case, the investigators failed to discover evidence of Beardslee’s

Paxil use. Testimony concerning Beardslee’s Paxil use “might support [Cooksey’s] . . .

alleged justifiable use of force.” Section 45-3-112, MCA (emphasis added). Hence, the

evidence falls within the parameters of the statute. Of course, there might be cases where

a peace officer conducts the investigation in such a way that disclosure of all potentially

relevant evidence should result, yet certain evidence simply eludes discovery. It may be

necessary in such a case to consider whether the failure to unearth “all” potentially

relevant evidence in existence constitutes a violation of the statute. But that is not the

situation here. The officers admittedly made no effort at all to investigate whether

Cooksey had acted in self-defense. Indeed, the responding deputies testified that they

had done “nothing” to investigate his allegation, and the State tacitly concedes that the

DCI officers likewise did nothing to investigate Cooksey’s claim.

¶94    As for Mitchell’s case, the officers did not believe their investigation involved

securing evidence related to Mitchell’s allegation of self-defense.        Of course, the

existence of the evidence at issue (the multi-tool attached to Corbin’s belt) was already

known by Mitchell. Yet, the officers placed Mitchell under arrest and took him into

custody at the scene. At that point, the officers had the authority to reasonably search the

immediate area “for the purpose of . . . discovering and seizing any persons, instruments,

articles, or things which may have been used in the commission of or which may

constitute evidence of the offense.” Section 46-5-102(4), MCA. The officers did not do

so. Furthermore, even absent the fact that Mitchell was in custody, it is absurd to suggest



                                            43
(as the State does here) that he should have attempted to wrest the multi-tool from Corbin

for purposes of securing it as evidence. That was the officers’ job.

¶95    Indeed, that we now effectively require the victim who defends against an assault

to secure the weapon used in the attack is unconscionable. Typically, victims who defend

themselves have no more urgent objective than to save themselves from personal harm or

death in whatever way they can. If they accomplish that—and live to tell about it—the

law should not require that they then gather the evidence which would support their

justifiable-use-of-force defense so as to preserve that evidence against loss, alteration, or

destruction. Ordinary citizens are not trained in the technicalities of gathering forensic

evidence; thus, even assuming the victim attempted to gather such evidence, there is

every reason to believe the evidence would be challenged at trial based on any number of

objections—e.g., that the chain of custody or a secure storage was not maintained; or that

the evidence was altered or tampered with; or that fingerprints, DNA, or trace evidence

was not preserved. If we adopt any rule, it should be that evidence-gathering should be

left to the experts—peace officers and crime scene investigators. The contrary rule

suggested by the State, and effectively adopted by the Court, does not even pass the

common-sense test.

¶96    Given that the stated purpose of § 45-3-112, MCA, is “to . . . secure the ability of

the people to protect themselves” (Laws of Montana, 2009, ch. 332, preamble), and given

that Mitchell had informed the officers that he acted to protect himself when he assaulted

Corbin, it would be nonsensical to conclude that the officers, who admittedly were aware

of evidence that “might” support Mitchell’s claim of justifiable use of force, did not need

                                             44
to take steps to secure and preserve that evidence. Leaving the multi-tool in Corbin’s

possession, rather than seizing and preserving it as evidence, constituted a gross failure

by the officers to comply with the purpose, spirit, and “substance” of § 45-3-112, MCA.

See § 1-2-101, MCA.

¶97    For these reasons, I would hold that the statute was violated in Cooksey’s and

Mitchell’s cases.

                                        F. Relief

¶98    The question arises as to the proper remedy for these violations. This Court has

recognized that the requirements of a statute “could be meaningless unless there [is] an

‘incentive’ for officials to follow its requirements.” State v. Strong, 2010 MT 163, ¶ 13,

357 Mont. 114, 236 P.3d 580 (quoting State v. Benbo, 174 Mont. 252, 259, 570 P.2d 894,

899 (1977)). The Strong and Benbo cases involved the statutory requirement that a

person arrested must be taken “without unnecessary delay” before the nearest and most

accessible judge for an initial appearance. Section 46-7-101(1), MCA. This statute does

not identify any sanction for a violation of its requirement of a prompt initial appearance.

Strong, ¶ 12. As a result, this Court had to fashion a remedy—an authority we possess

“based upon our supervisory power over lower courts.” Strong, ¶ 13. The remedy, we

explained, must be sufficient “to insure that ‘rights declared in words [not become] lost in

reality.’ ” Strong, ¶¶ 13-14 (brackets in original) (quoting Miranda v. Arizona, 384 U.S.

436, 443, 86 S. Ct. 1602, 1612 (1966)). The remedy employed in Benbo was suppression

of evidence against the defendant obtained during the period of unnecessary delay before

the initial appearance. 174 Mont. at 262, 570 P.2d at 900. The remedy in Strong was

                                            45
dismissal of the charge. Strong, ¶ 15. The Court held that the dismissal was without

prejudice, but noted that dismissal with prejudice may be warranted where the defendant

shows “material prejudice” arising from the unnecessary delay in providing an initial

appearance. Strong, ¶¶ 19-20.

¶99    In the present two cases, I have serious concerns about the investigating officers’

flagrant disregard of the requirements imposed on them by the plain and unambiguous

language of § 45-3-112, MCA—specifically, to conduct their investigations (in cases

involving justifiable use of force) so as to discover, expose, and make known “all”

evidence, including testimony concerning the alleged offense and that might support the

apparent or alleged justifiable use of force. Given the persistence and determination of

HB 228’s proponents, given the legislation’s passage by wide margins (40-10 in the

Senate; 85-14 in the House), and given Marbut’s understanding that § 45-3-112, MCA,

would require investigators to “look for and collect all evidence, including evidence that

could exonerate a person claiming self-defense” (emphasis added), I have little doubt that

efforts will be undertaken to overturn this Court’s blatant neutering of the statute. At that

time, it may be prudent to consider incorporating appropriate remedies or “incentives”

into the statute so as to ensure that law enforcement complies with whatever duties the

Legislature decides to re-impose on peace officers.

¶100 Cooksey suggests that the proper remedy in his case is to grant a new trial, while

Mitchell argues that the proper remedy for him is to dismiss the charge. Our decision in

Strong supports the premise that there is not necessarily one single remedy for every

violation of a statute’s mandates and that the appropriate remedy must be determined

                                             46
based on the unique facts of each case. Here, however, since the Court has interpreted

§ 45-3-112, MCA, into oblivion, no purpose would be served in analyzing whether

dismissal, a new trial, or another remedy would be appropriate to address noncompliance

with the statute. Suffice it to say that, in my view, the statute was violated in both cases

and some form of remedy should exist to deter such violations in the future.

                                      III. Conclusion

¶101 In summary, I concur on Issues One, Two, and Four of Cooksey. As to Issue One

specifically, while I believe that Cooksey has raised credible concerns about the potential

taint of the jury pool in his case, I am not persuaded that Simms’ remarks in the church

basement were so egregious and prejudicial as to irreparably poison the entire jury panel.

Nevertheless, I conclude that the District Court’s failure to instruct the venire is not only

bad practice, but also runs a real risk of depriving a defendant of the right to a fair trial

and, thus, should be categorically rejected. I would admonish the trial courts—to the

extent they are not already doing so—to sua sponte instruct the venire at the outset, and

reinstruct the jury when it is sworn, not to discuss anything pertaining to the case unless it

is received in evidence at the trial and the case is submitted to the jury for deliberation.

Bailiffs also should be instructed to strictly enforce this rule and to promptly report

violations of the same to the presiding judge.

¶102 As to Issue Three of Cooksey and Issues One and Two of Mitchell, I dissent from

the Court’s statutory construction. “ ‘[All judges] know how to mouth the correct legal

rules with ironic solemnity while avoiding those rules’ logical consequences.’ ” TXO

Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443, 500, 113 S. Ct. 2711, 2742

                                             47
(1993) (O’Connor, White, & Souter, JJ., dissenting) (brackets in original) (quoting

Garnes v. Fleming Landfill, Inc., 413 S.E.2d 897, 907 (W.Va. 1991)). And that is exactly

what the Court does here—acknowledging that we may not disregard the plain language

and substance of a statute, Cooksey, ¶ 32, but then interpreting the statute contrary to its

plain intent so as to render it utterly superfluous, Cooksey, ¶ 37. Based on my analysis

above, I conclude that § 45-3-112, MCA, clearly and unambiguously requires that when

an incident involves or appears to involve justifiable use of force, a peace officer who is

investigating the incident must conduct the investigation so that all evidence, including

testimony concerning the alleged offense and that might support the apparent or alleged

justifiable use of force, is disclosed, i.e., is discovered, exposed, and made known. I

would hold that the statute was violated in both Cooksey and Mitchell.

¶103 In closing, there may be many who disagree with the notion that peace officers

should be required to conduct investigations on behalf of criminal defendants. Indeed,

the legislative record reflects that numerous individuals—law enforcement and private

citizens—spoke out against the adoption of HB 228. Nevertheless, our elected leaders

voted to enact the legislation, and it is not this Court’s job “to protect the people from the

consequences of their political choices.” Natl. Fedn. of Indep. Bus. v. Sebelius, ___ U.S.

___, 132 S. Ct. 2566, 2579 (2012) (opinion of Roberts, C.J.).

¶104 It is this Court’s solemn obligation to apply the law enacted by the Legislature, not

to rewrite the law to suit our “better view” of what we think the law should be. In our

decision here, we have grossly violated this fundamental principle of the constitutional

separation of powers. I cannot agree, and I strongly dissent.

                                             48
                                                 /S/ JAMES C. NELSON


Justice Jim Rice, concurring and dissenting.

¶105 I concur in the Court’s resolution of Issues One, Two, and Four. I dissent from

Issue Three and join Justice Nelson’s analysis of § 45-3-112, MCA, set forth at ¶¶ 63-79

of his concurring and dissenting opinion.


                                                 /S/ JIM RICE




                                            49
