State v. Pope, 2017 Mont. LEXIS 31

Pope was charged with attempted deliberate homicide, assault with a weapon, and driving while license suspended after an alleged September 12, 2013 incident; the victim, Susan Myers, made inconsistent statements about whether she was struck by his van.
Prosecutor’s investigator Hulme recorded a 45-minute video interview of Myers on the first day of trial in which she gave statements relevant to her testimony; the State did not disclose the recording to defense counsel before Myers testified.
Defense counsel learned of the recording the morning Myers testified, requested production and time to review it; the District Court denied production, accepting the State’s claim the recording was work product and not exculpatory.
After the State rested, Pope moved for a mistrial and other sanctions under Montana discovery statutes; the District Court denied relief and the jury convicted Pope of assault with a weapon and driving while license suspended (acquitting on attempted homicide).
On appeal the State conceded it should have produced the recording; the Supreme Court found withholding the video was erroneous and remanded for the district court to determine appropriate sanctions.
The Court also held the district court erred in imposing the court IT user surcharge per count rather than per user; issues about ability to pay fees were held premature.

Issue	Pope's Argument	State's Argument	Held
Whether the State violated disclosure by withholding the recorded witness interview	The recorded interview is a witness "statement" under §46-1-202 and §46-15-322 and must be produced; withholding prejudiced defense	Initially argued only exculpatory material and witness contact info are required; later conceded the interview should have been produced and denied prejudice	The State wrongfully withheld the recording; district court erred in refusing production; remanded for determination of sanctions
Whether district court determined Pope’s ability to pay before imposing costs and fees	Court must assess defendant's ability to pay before imposing fees	State did not contest now; issue may be affected by sanctions	Court deemed issue premature pending district court’s sanction decision on remand
Whether IT user surcharge may be imposed per count instead of per user	Surcharge must be per user, not per conviction count	Conceded on appeal that per-count imposition was improper	Court held per-count imposition was illegal; surcharge must be per user
Whether witness statements are protected as prosecutor work product	Statement is not work product and must be disclosed under §46-15-322	Claimed recording was work product and not discoverable	Court held witness statements are not within criminal work-product protection; district court erred in treating recording as work product

State v. Waters, 228 Mont. 490, 743 P.2d 617 (Mont. 1987) (discovery promotes truth by avoiding surprise; sanctions available for nondisclosure)
State v. Stewart, 303 Mont. 507, 16 P.3d 391 (Mont. 2000) (continuing duty to disclose; failure to disclose before trial was error)
State v. Burns, 253 Mont. 37, 830 P.2d 1318 (Mont. 1992) (criminal discovery purpose: informed pleas, expedite trials, minimize surprise)
State v. Licht, 266 Mont. 123, 879 P.2d 670 (Mont. 1994) (State may not decide for defendant whether material is exculpatory; witness statements fall under disclosure)
State v. Golder, 301 Mont. 368, 9 P.3d 635 (Mont. 2000) (standard of review: discovery rulings reviewed for abuse of discretion)