State v. Cressler , 2014 MT 29N ( 2014 )

February 4 2014
DA 13-0483
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 29N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JAMES R. CRESSLER,
Defendant and Appellant.
APPEAL FROM: District Court of the Third Judicial District,
In and For the County of Granite, Cause No. DC 12-02
Honorable Ray Dayton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
James R. Cressler, self-represented; Drummond, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; Jonathan M. Krauss,
Assistant Attorney General; Helena, Montana
Chris Miller, Granite County Attorney; Phillipsburg, Montana
Submitted on Briefs: January 2, 2014
Decided: February 4, 2014
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Defendant, James Cressler (Cressler) and his father, Robert Cressler (Robert), both
have homes on a 20-acre parcel of land in Drummond. The property is marked with no
trespassing signs and orange posts, although Felan Road passes through the Cressler
property. From the testimony, rights associated with the road appear disputed but, at a
minimum, it provides access to other area landowners. On December 27, 2011, Dale
Cochrell (Cochrell), Scott Adler (Scott), and Jake Adler (Jake) were hunting mountain
lions in the area, where public lands are interspersed with private holdings. They were
hunting with three dogs—Bob, Shy, and Bodie. It is undisputed that, at some point
during the day, the dog Bob (Bob), owned by Cochrell, crossed a portion of Cressler’s
property. Cressler and Robert had approximately 27 dogs of their own on their property.
The events that followed are disputed, so the following is taken from the evidence
introduced at trial.
¶3 Cressler asserted that around 8:45 a.m., several of his dogs began barking and
running toward the house while being attacked and chased by two unknown dogs.
Cressler reported that he had had problems with other dogs on his property in the past and
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would summarily shoot unknown dogs on his property. Both Robert and Cressler fired
what Robert described as “warning shots” to scare off the attacking dogs, but one of the
shots fired by Cressler struck and killed Bob. Cressler stated that two of his dogs were
injured in the attack, but he did not seek medical attention for them. He stated that he
later found the two dogs dead from their injuries and buried them. Robert placed Bob in
a garbage bag and dumped him in a gully about two miles down the road from Cressler’s
property. Cressler called the Sheriff’s Office that morning to report the attack and
shooting of the dog. Deputy Roland Hultman spoke with Cressler on the phone and met
with Cressler and Robert at approximately two o’clock that afternoon.
¶4 Deputy Hultman was not shown any injured or dead dogs on Cressler’s property,
nor was he shown a location where a dog fight had occurred. Deputy Hultman asked
Cressler to take the dogs to the vet for medical attention in order to document the injuries,
however he was told that Cresslers would not seek medical attention for either dog
because they did not want to invest money in any dog since they had so many.
¶5 Scott testified that while looking for the dog, he drove up Felan Road which goes
through Cressler’s property. Cressler approached Scott in the road. Scott asked if
Cressler had seen any dogs, and Cressler replied that two “ran off that way.” Cressler did
not mention the dog fight, shooting, or disposal of Bob. Scott noticed dog tracks and
blood on the ground near Cressler’s gate. There only appeared to be one set of dog
tracks, along with human tracks and drag marks.
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¶6 Cochrell testified that he used the tracking collar to locate Bob. After finding Bob
dead in the garbage bag, clearly killed by a gunshot, Cochrell called the Sheriff’s Office.
Cochrell testified that he would be surprised if any of his dogs would have gone off the
lion track and tangled with other dogs given their breeding, instinct, and training.
Deputies Hultman and Ed Short responded to the call and met Cochrell and Scott where
Bob was found. The group traveled to where Scott had noticed blood and dog tracks
earlier in the day.
¶7 Both Deputies testified that when viewing the location where Scott had found
blood that day, they only saw what appeared to be one set of dog tracks. There were no
signs of a dog fight in the area where Bob was killed. They also testified that their
examination of Bob revealed a clear bullet hole to the abdomen and a possible gunshot in
the head, but no sign of an altercation with other dogs such as bite marks or tears.
¶8 Cressler was issued citations for cruelty to animals, criminal mischief, and
harassment, all misdemeanors, on January 22, 2012. Cressler entered a plea of not guilty
to all charges on February 3, 2012, and he was appointed trial counsel. A jury trial was
held on July 20, 2012, in Justice Court. Following his conviction on all three counts,
Cressler appealed to the Third Judicial District Court, Granite County, on August 21,
2012. Daniel Miller and James Reavis were substituted as counsel for Cressler before the
District Court. The District Court signed a Scheduling Order on September 20, 2012,
setting the trial for March 11, 2013.
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¶9 Miller subsequently filed a motion to continue the trial on March 4, 2013 “on the
grounds and for the reasons that the defense ha[d] been made aware of new information
regarding this matter and need[ed] additional time to fully investigate that information.”
The State did not object to the continuance, and the trial was reset for May 30, 2013.
Cressler assets this continuance was filed without his knowledge. He subsequently
requested leave to represent himself. The District Court granted Cressler’s request, and
appointed Miller and Reavis as stand-by counsel. Cressler was convicted by jury of
cruelty to animals and criminal mischief, but acquitted of harassment. Cressler appeals. 1
¶10 Cressler argues that the charges against him must be dismissed because his right to
a speedy trial was violated by the continuation of his district court trial, without his
consent, resulting in a trial being conducted 252 days after the District Court entered the
scheduling order. He further argues there was insufficient evidence to convict him of the
cruelty to animals and criminal mischief charges because the State failed to prove that
Cochrell and Adlers were on a “lawful” hunt at the time of the shooting, and it failed to
disprove Cressler’s justification defense. Finally, Cressler argues that his appointed
counsel were ineffective by filing the motion to continue the second trial without his
consent, failing to call in expert witnesses and subpoena documents as he had requested,
failing to provide discovery in a timely manner, and failing to participate on his behalf at
trial.
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Cressler’s opening brief is titled “Appeal of Defendant for Post Conviction Relief.” However,
there has been no postconviction proceeding and Cressler’s Notice of Appeal was filed on
July 22, 2013, within the 60-day deadline for a direct appeal from the District Court’s final
sentencing order of June 21, 2013. We thus deem this to be a direct criminal appeal.
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¶11 Section 46-13-401(2), MCA, requires that a court dismiss the prosecution of a
misdemeanor charge if the defendant has not been brought to trial within six months of
the entry of a plea unless the trial was postponed upon the defendant’s motion. However,
this statute has long been held to apply only to the original trial in justice court, and not to
a trial de novo in district court. State v. Stanko, 1998 MT 323, ¶ 25, 292 Mont. 214, 974
P.2d 1139 (citations omitted). Cressler was tried in justice court within six months of his
plea, thus his right to a speedy trial under the statute was not violated by the
postponement of his district court trial.
¶12 The State was not required to prove that the victim was engaged in a lawful hunt
to support a conviction of cruelty to animals under § 45-8-211, MCA, or criminal
mischief under § 45-6-101, MCA. Though the harassment charge Cressler was acquitted
of required the State to prove that Cressler interfered with another person’s “lawful
taking of a wild animal” pursuant to § 87-6-215, MCA, no similar requirement existed for
the other charges. Further, conflicting testimony does not render the evidence
insufficient to support a guilty verdict, and determinations of credibility and weight of
testimony are within the exclusive province of the jury. State v. Wood, 2008 MT 298,
¶ 43, 345 Mont. 487, 191 P.3d 463. The jury was presented with sufficient evidence
from which to conclude that Cressler was guilty of these offenses and to reject his
argument that he was justified in shooting the dog under the circumstances.
¶13 Ineffective assistance of counsel (IAC) claims are evaluated under the
two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052
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(1984). State v. Morsette, 2013 MT 270, ¶ 18, 372 Mont. 38, 309 P.3d 978. The test
requires that a defendant asserting IAC establish that counsel’s performance fell below an
objective standard of reasonableness and that there is a reasonable probability that but for
counsel’s errors the result of the trial would have been different. Morsette, ¶ 19.
However, before reaching the merits of an IAC claim on appeal, this Court must first
determine whether the claim is properly before it. State v. Savage, 2011 MT 23, ¶ 23,
359 Mont. 207, 248 P.3d 308. If the record explains “why” counsel took, or failed to
take, action in providing a defense, this Court may address the issue on direct appeal.
State v. Wright, 2011 MT 92, ¶ 31, 360 Mont. 246, 253 P.3d 838. If the record does not
reveal “why” counsel acted in a specific manner, then this Court will dismiss the IAC
claim without prejudice and allow the defendant to raise the claim in a petition for
postconviction relief. State v. Norman, 2010 MT 253, ¶ 20, 358 Mont. 252, 244 P.3d
737. Sometimes, however, it is unnecessary to ask “why” in the first instance such as
when there can be “no plausible justification” for what defense counsel did. State v.
Kougl, 2004 MT 243, ¶¶ 15-16, 323 Mont. 6, 97 P.3d 1095. Similarly, it would be
unnecessary to ask “why” when there can be no plausible argument that the action was
prejudicial to the defendant.
¶14 Cressler raises seven allegations in his IAC claim, which we separate into four
categories. First, Cressler claims his counsel’s filing of a motion for continuance in the
District Court without his consent pushed the trial beyond the six-month statutory
requirement. He argues this continuance deprived him of the right to a speedy trial, and
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his counsel’s failure to move for dismissal of the charges was ineffective. The second
claim centers on his counsel’s failure to obtain expert witnesses and to subpoena hunting
and dog licenses for Cochrell and Adlers, despite his repeated requests to do so. Third,
Cressler asserts despite his inexperience with the law, including the voir dire process and
the rules of civil procedure, his stand-by counsel “failed to offer any assistance”
throughout the trial’s duration. Finally, Cressler claims that his counsel failed to forward
discovery materials to him in a timely manner after being removed from the case. He
alleges this delay in providing discovery prohibited him from adequately preparing for
his trial.
¶15 We can properly review Cressler’s allegations of IAC regarding the motion for
continuance on direct appeal because the record plainly reveals “why” counsel took this
action. In the motion, counsel stated it was made because “the defense has been made
aware of new information regarding this matter and needs additional time to fully
investigate the information.” We have already noted that the six-month statute did not
apply to district court proceedings. Further, nothing about counsel’s request for a
continuance less than two weeks before trial in response to new information that may
have come to light is objectively unreasonable. Additionally, Cressler has not presented
any evidence that the outcome of his case would have been different but for the
continuance.
¶16 We can evaluate Cressler’s second and third IAC claims on direct appeal because
it is unnecessary to ascertain the reason for his counsel’s actions. With regard to his
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claim regarding expert witnesses and subpoenaed records, it is clear that no prejudice can
be alleged from these actions. Cressler requested to bring a witness from Fish, Wildlife,
and Parks (FWP) to testify about regulations for hunting mountain lions in the area, as
well as whether Cochrell and Adlers were on a “lawful” hunt. Cressler further requested
to have an expert testify about proper training and handling of hunting dogs to establish
both that Cochrell failed to properly control his dog and to discredit Cochrell’s claim that
Bob was worth $1,500. Finally, Cressler requested that hunting licenses for Cochrell and
Adlers be subpoenaed to verify whether they had the proper licenses for their lion hunt.
¶17 As explained above, it was unnecessary for the State to prove that Cochrell was on
a lawful hunt at the time of the shooting to support the convictions for cruelty to animals
and criminal mischief. Similarly, it was unnecessary for defense counsel to gather
evidence to prove that there was an “unlawful” hunt. Though this evidence may have
been pertinent to the hunter harassment charge, Cressler was acquitted of this crime and
thus cannot claim any prejudice by counsel’s failure to call FWP personnel or to
subpoena hunting licenses.
¶18 Cressler also claims that Cochrell was required by law to “prevent the hunting
dogs from running at large,” and if he had properly controlled Bob, the dog would never
have been killed. This argument is based on §§ 87-3-124(1)(d) and 87-1-102(1), MCA
(both provisions were repealed effective October 1, 2011). Section 87-3-124(1)(d),
MCA, provided that an owner of a dog who chases, stalks, pursues, attacks, or kills a
hooved game animal is guilty of a misdemeanor even if “the dog is not under the control
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of an adult.” Section 87-1-102(1), MCA, simply provided that any person who violates a
fish and game law is guilty of a misdemeanor. Neither of these statutes provides any
support for Cressler’s claim that Cochrell was required to have physical control over Bob
throughout the entire hunt. It appears Cressler may be arguing that under § 87-3-
124(1)(c), MCA, he was entitled to kill the dog “without criminal or civil liability.”
However, these statutes were not effective at the time Bob was killed, and even if they
were, Cressler is not a peace officer, game warden, or other person authorized to enforce
the fish and game laws. Further, the statute specifically excepted dogs engaged in a lion
hunt during lion season. Section 87-3-124(3)(a), MCA. Finally, Cressler has never
alleged that Bob was attacking a hooved game animal. Thus, there can be no argument
that failure to have experts testify regarding Cochrell’s failure to comply with a repealed
statute prejudiced his defense. As Cressler has provided no other reason why Cochrell’s
handling of Bob at the time of his death justified the shooting, this claim likewise fails to
meet either prong of the Strickland test.
¶19 In addition to the proper handling concern, Cressler sought to introduce expert
testimony as to the monetary value of a trained hunting dog, such as Bob, to discredit
Cochrell’s claim that the dog’s value was $1,500. However, monetary value of the
animal was not an element for either the cruelty to animals or criminal mischief charges.
Though the State would have had to prove a monetary value of over $1,500 to support a
felony conviction for criminal mischief, § 45-6-101(3), MCA, Cressler was charged with
a misdemeanor, which requires no such proof. Thus, the introduction of such expert
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testimony would have been irrelevant to his convictions, and failure to obtain the
testimony was not ineffective.
¶20 Cressler’s claim that his stand-by counsel failed to provide assistance at trial
likewise does not establish ineffectiveness. Cressler does not allege that the District
Court erred in allowing him to represent himself at his request, but rather alleges that his
stand-by counsel did not assist him during trial. The transcript reveals that, during the
trial, Cressler requested and was granted leave by the court to consult stand-by counsel, at
which times a conversation between Cressler and counsel would be conducted. Stand-by
counsel is not held to the same standards as an attorney fully representing a client.
Cressler requested to represent himself and was warned of the difficulties and obstacles
in doing so. Cressler was given the opportunity to consult with counsel during the trial as
he wished, during which time it appears counsel responded to his inquiries. Cressler does
not assert that stand-by counsel refused to aid him when he requested it. Cressler’s claim
does not establish, and we cannot conclude, that stand-by counsel violated any objective
standard of reasonableness during the trial.
¶21 Cressler’s final IAC claim cannot be reviewed on direct appeal because it is not
apparent from the record what discovery materials counsel allegedly failed to provide.
Cressler does not explain what material was not timely provided, nor what effect such
delay had upon his defense. As the nature of this claim cannot be determined from the
record, Cressler may raise this issue in a petition for postconviction relief with the
District Court. He will need to make out a plausible claim in order to do so.
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¶22 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for noncitable memorandum opinions. The
jury’s verdict was supported by substantial evidence and the legal issues are controlled by
settled Montana law, which the District Court correctly interpreted. Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
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