Tuesday, August 1, 2017

Bill Windsor Anti-Corruption Warrior of Lawless America Files Appeal and Continues Seeking Justice in the State of Montana. Where are the State and Federal Authorities ?

"THE SUPREME COURT OF THE STATE OF MONTANA
Supreme Court No. DA 16-0138 STATE OF MONTANA,

Plaintiff and Appellee,
v.
WILLIAM MICHAEL WINDSOR,

Defendant and Appellant.

APPELLANT’S OPENING BRIEF

On Appeal from the Montana Fourth Judicial District Court,
Missoula County, the Hon. James A. Haynes, Presiding
APPEARANCES:

COLIN M. STEPHENS TIMOTHY C. FOX
Smith & Stephens, P.C. Montana Attorney General

Attorney for Defendant KIRSTEN PABST
& Appellant Missoula County Attorney
200 W. Broadway
Missoula, MT 59802
Attorneys for Plaintiff
& Appellee

District Court Judge for the Twenty-First Judicial District, sitting by designation.
07/26/2017
Case Number: DA 16-0138


STATEMENT OF THE CASE

William M. Windsor (Windsor) appeals from his convictions of two
counts of Violation of an Order of Protection (both misdemeanors) and
the sentences imposed thereon. (Appendix A).

STATEMENT OF THE ISSUES


The district court erred in denying Windsor’s “result” definitions
of “knowingly” and “purposely.”

The State violated Windsor’s due process rights in withholding
information pursuant to Brady v. Maryland, 373 U.S. 83 (1963).
The district court committed plain error in allowing the
prosecutor to question Windsor on whether he had been previously
charged with felonies, and whether Windsor had offered to settle the
case prior to trial, both of which amount to prosecutorial misconduct.

STATEMENT OF THE FACTS

Through a very strange series of events, Windsor – then living in
Georgia – and Sean Boushie (Boushie), an employee at the University
of Montana, began to engage in a war of words over the internet. The
war culminated in Windsor traveling to Montana to obtain a temporary
order of protection against Boushie for cyber-stalking,

Boushie obtaining a Temporary Order of Protection (TOP) against Windsor, and
Windsor eventually being charged with felonies for violating the TOP.
Three of the five charges were eventually dismissed by the district
court on the grounds that some of the critical terms of the TOP
contained “vague and unintelligible prohibition[s]

11). The remaining two counts were misdemeanors. Windsor’s case
proceeded to trial, and he was ultimately convicted by a jury and
sentenced to two consecutive six-month sentences, all of which was
suspended except for 134 days which Windsor had already served.
(Doc. 201 at 2). The district court, which retained control of the case
despite the reduction of the offenses from felonies to misdemeanors,
also imposed a number of conditions and financial obligations which
will be addressed in further detail.

This is not Windsor’s first trip to this Court. He has filed several
pro se appeals related to the denial of his own request for restraining
2Windsor’s request was denied by the Missoula Municipal Court
on Aug. 6, 2016.

orders and orders of protection against Boushie. See: Windsor v. Fourth
Judicial Dist., 2014 MT 52N, 374 Mont. 542, 2013 Mont. LEXIS 575
(OP 13-0697); Windsor v. Boushie, 2014 MT 53N, 374 Mont. 542;
Windsor v. Missoula Muni. Court, 375 Mont. 551, 346 P.3d 1132 (OP
14-0173). In each of these cases, this Court denied relief to Windsor.
Boushie was more successful. In Boushie v. Windsor, 2014 MT
153, 375 Mont. 301, 328 P.3d 631 (hereafter Boushie I), this Court
upheld the TOP Boushie obtained against Windsor. Because this TOP
ultimately became the foundation for the criminal conviction from
which this appeal is taken, the procedural history of the TOP is
relevant.

Windsor sought four separate petitions for protective orders and
filed six police reports; all of which were directed at Boushie. Boushie,
¶ 4. After these Herculean efforts, Windsor took other steps he deemed
necessary to protect himself and his reputation against Boushie. In
turn, Boushie requested and was granted a TOP against Windsor in the
Missoula Municipal Court. Id.

This TOP, was eventually described by the district court as
having “vague and unintelligible prohibition[s],” (Doc. 150 at 8-9, 11),
barred Windsor from threatening to harm or harming
Boushie’s wife; harassing or otherwise contacting Boushie’s
wife or University of Montana Staff4; coming within 1,500
feet from Boushie’s residence, Boushie’s wife and the
University of Montana; and possessing a certain firearm. It
also required Windsor to release SeanBoushie.com to
Boushie and to refrain from posting Boushie’s name on line.
Id. at ¶ 5. On September 17, 2013, “Boushie filed a request to affirm
and extend the order of protection in the District Court.” Boushie at ¶
6. For his part, Windsor “moved to vacate the TOP. He also moved for
discovery regarding a number of different things, including Boushie’s
mental health and online activities.” Id. These pleadings were also
filed in district court.

The district court “denied Windsor’s requests and, ultimately
affirmed the Municipal Court’s decision regarding the TOP.” Id at ¶7.
The district court also declared Windsor a “vexatious litigant.” Id at ¶
20. Finally, the district court then took the unusual and punitive step
4According to 2009 research, the University of Montana is by far
the top employer in the City of Missoula, employing approximately
3,651 employees.

http://missoulian.com/top-employers-in-the-city-of-missoula/article_adef
b1d0-ea06-11de-b150-001cc4c002e0.html (last accessed 7/24/2017).
of issuing an injunction because of Windsor’s alleged
‘extraordinary abuse of the state judicial system by
repeatedly filing frivolous, malicious and vexatious lawsuits
. . . .’ Accordingly, the [district] court enjoined Windsor from
filing any complaint or initiating any proceedings without
leave from the district court judge. The [district] court’s
order also provided that if the lawsuit or proceeding named
judges or court employees, Windsor had to tender a $50,000
bond sufficient to satisfy an award of sanctions.

Id. at ¶ 7. This Court correctly struck the district court’s condition that
Windsor post a bond. Id. at 21. However, this Court did uphold the
district court’s decision which upheld Boushie’s TOP against Windsor.
Upon remand, the case remained briefly in the municipal court before
Boushie removed the case to the district court. (Doc. 150 at 3).
On September 23, 2014, the district court set an evidentiary
hearing for December 8, 2014. The order contained no statement about
the August 23, 2013 TOP remaining in effect until the December
hearing. Additionally, the December evidentiary hearing never
occurred. In fact, no evidentiary hearing ever occurred. (Doc. 150 at 4).
The district court eventually dismissed the TOP on motion of Boushie.
On October 3, 2014, the state filed an Information charging
Windsor with five counts of violation of an order of protection. Because
these offenses stack, i.e., subsequent convictions result in increased
punishments; the final three counts were charged as felonies. (Doc. 3).
The Information alleged Windsor violated the TOP on or about the
following dates: May 4, 2014 (Count I); July 4, 2014 (Count II); October
2, 2014 (Count III)5; December 30, 2013 (Count IV); and February 6,
2014 (Count V). (Doc. 3).

The factual predicates of the allegations largely stemmed from
some of the absurd restrictions in the TOP. Count I alleged that
Windsor had “posted an article on his website,

www.lawlessamerica.com, authored by himself, which mention the
name ‘Sean Boushie’ three times.” (Doc. 151 at 2). Similarly, Count II
alleged that Windsor had posted an article on the same website that
mentioned Boushie’s name once. (Id). Count III alleged that Windsor
had not relinquished control of the website www.seanboushie.com.
Count IV alleged that Windsor violated the TOP by posting “Sean
Boushie’s name on Twitter. . . .” (Doc. 151 at 3). Finally, the Amended
5The state later amended the date on Count III from a single date
to a time spanning August 24, 2013 through October 2, 2014. (Doc.
151).

Information alleged that Windsor had “emailed Claudia Denker-Eccles,
Associate Counsel for the University of Montana.” (Doc. 151 at 3).
Acting pro se6, Windsor filed a flurry of motions including motions
challenging the validity of the TOP and motions to dismiss the charges
against him. On October 29, 2015 the district court issued an order
dismissing Counts I and II (writing Boushie’s name on a website), and
Count IV (writing Boushie’s name on Twitter).

Windsor’s trial on the remaining two counts commenced on
January 5, 2016. As with the majority of the pre-trial proceedings,
Windsor represented himself during trial. (Doc. 185). The State was
represented by deputy county attorney Jennifer Clark. With Mrs.
Clark was Det. Chris Shermer, a member of the Missoula Police
Department. (Jan. 5, 2016, Tr. at 95)7 Det. Shermer was the lead
6Windsor was originally appointed a public defender, Christopher
Daly. Mr. Daly’s role eventually transitioned into that of stand-by
counsel. Finally, with Windsor’s and the district court’s permission,
Mr. Daly withdrew and Windsor proceeded pro se.
7The transcripts in this matter appear to be grouped and
paginated as a collection of hearings. For example, hearings from April
8, 2015, September 11, 2015, January 5, 2016, and January 6, 2016, are
grouped and paginated as one transcript. Hence, the pagination does
not match the page number for a specific date.

investigator in the case against Windsor. Det. Shermer was listed as a
witness for the State. (Doc. 114 at 2). Windsor also listed Det.
Shermer as a defense witness. (Doc. 169.2 at pg. 1). Unbeknownst to
Windsor, Det. Shermer had been disciplined in October 2010 by the
Missoula Police Department, for “failing to educate himself of the
relevant criminal statutes and by using illegal means of pursuing a
criminal offender.” (Appendix E). Det. Shermer did not testify at
Windsor’s trial but his presence was known to the jury, (Jan. 5, 2016,
Tr. at 95, 130), and he was represented as the lead agent in the case
against Windsor. Det. Shermer also interviewed Boushie in the course
of his investigation. (Jan. 5, 2016, Tr. at 216). Det. Shermer was also
subpoenaed by both the State, (Doc. 169), and his name appears on
Windsor’s witness list (169.2).

Windsor testified on his own behalf at trial. However, because he
was acting pro se and without the benefit of stand-by counsel, he
questioned himself on the witness stand in a question-and-answer
format. While this process seemed to work on direct, it allowed the
prosecution to run roughshod over Windsor’s rights on cross-
examination because his ability to make contemporaneous objections
was compromised. For example, on cross-examination the following
prejudicial colloquy occurred between State’s counsel and Windsor:
State: One of your contentions is that this court is corrupt,
correct?

Windsor: Yes.

State: But, in fact, this court actually dismissed three of the
charged counts.

Windsor: Yes. Three felonies.

(Jan. 6, 2016, Vol. I. at 22). A short time later, the prosecutor violated
Mont. R. Evid. 410 by questioning and eliciting testimony from Windsor
on his pre-trial attempts to settle the case. Although Windsor did not
object, the district court did not intervene to prevent an obvious error of
law on the part of the prosecutor. Further, when Windsor attempted to
address these settlement discussions in his closing argument, he was
prohibited from doing so upon objection by the State, despite the fact
that the State had elicited the testimony on cross-examination. (Jan. 6,
2016, Vol. I. at 67).

One of the pillars of Windsor’s defense was that he and Boushie
were also engaged in civil litigation and, as a result, Windsor was
required to serve certain legal documents on Boushie. Boushie’s TOP,
however, prevented Windsor from serving Boushie as required by the
Rules of Civil Procedure. One of Windsor’s arguments was that he had
mailed documents intended for Boushie to an attorney for the
University of Montana, Boushie’s employer. In his opening statement,
Windsor argued:

Some mail was sent to attorney Caudia Denker-Eccles.
At the time my thought was that the ex parte TOP had been
expired for months. I also thought that the ex parte TOP
would not and could not apply to something as vital as the
service of legal documents.

When you’re involved in a civil lawsuit with somebody,
you are required to send them a copy of everything that gets
filed with the court. If you change your address, you have to
– have to serve something. It has to be sent to them
otherwise your case can be dismissed because you didn’t do
it. It’s a – it’s a law. It’s a rule.

So how can somebody be stopped from their civil
litigation with a temporary order of protection issued on an
ex parte basis where I had no notice of it and didn’t even
have an opportunity to speak? I don’t believe you can.
I was confident that I was not violating the ex parte
TOP. I would have never sent anything if I thought it was a
violation.  (Jan. 5, 2016, Tr. 152-53).

Windsor’s proposed jury instructions also resounded with this
very theory of defense: he thought the TOP had expired and even if it
had not, he did not violate it by sending the paperwork to an attorney
working for Boushie’s employer. For example, Windsor’s proposed
instruction 13 reads, in part, “[w]hat a defendant was thinking and
what the defendant intended when the crime was committed matters.

The jury must differentiate between someone who did not mean to
commit a crime and someone who intentionally set out to commit a
crime.” (Appendix D at 28)8. Windsor also objected to what ultimately
became Instruction 15 allowing the jury to infer Windsor’s state of
mind from his actions and other facts. Windsor’s objection was “Better
definitions are provided for both knowingly and purposely.” (Appendix
D at 36). As better definitions, Windsor proposed result-based
definitions of both “knowingly” and “purposely.” (Appendix D at 37-56).
He even provided the district court with applicable legal authority
8Windsor’s proposed jury instructions incorporate lengthy legal
argument. For the Court’s convenience, Appendix D has been
paginated by counsel.

including citations to this Court’s decision in State v. Lambert, 280
Mont. 231, 929 P.2d 846 (1996). The district court denied Windsor’s
instructions and, instead, gave the conduct-based definitions of both
“purposely” and “knowingly.” (Doc 189).

In the end, the jury found Windsor guilty of both counts. (Jan. 6,
2016, Vol. I at 81). The district court sentenced Windsor to two sixmonth
sentences in the Missoula County jail; each sentence to run
consecutively to each other. The district court also imposed $2,000.00
in restitution to Boushie, a $1,000 fine, various fees, and prohibited
Windsor from having any contact with Boushie and his wife. As part of
this restriction, the district court ordered Windsor to take down “any
web site that you have that has Sean Boushie’s name on it. . . .” (Jan.
6, 2016, Vol. I at 96). This prohibition included Windsor from referring
to Boushie on any website. (Jan. 6, 2016, Vol. I at 99).

At the conclusion of the sentencing hearing, the district court
then requested Windsor autograph a copy of Windsor’s “Wanted”
poster. Windsor replied that he “would be delighted.” (Jan. 6, 2016,
Vol. I at 100).

SUMMARY OF THE ARGUMENTS

The offense of violating an order of protection requires a singular
result. In this case, the required definitions of “purposely” and
“knowingly” required the state to prove beyond a reasonable doubt that
Windsor acted with either a conscious object to cause a violation of an
order of protection, or with an awareness that there was a high
probability that his conduct would cause a violation of an order of
protection.

Although Det. Shermer did not testify at trial, his presence and
the fruits of his investigation were material to the State’s case. The
evidence that he had been disciplined by his employer and had engaged
in potentially criminal activity was equally material to Windsor’s
defense. Given how Windsor conducted his trial, it is all-but certain
that, had the State disclosed this Brady/Giglio material, Windsor would
have called Det. Shermer to testify for the purpose of discrediting the
investigation and the State’s case.9 The material set forth in Appendix
G would have had a devastating effect on the State’s case, undermined
9Giglio v. United States, 405 U.S. 150 (1971).

the integrity of the investigation into Windsor, and reasonably would
have resulted in a different outcome at trial, especially in light of
Windsor’s repeated references to the corruption represented by his
case.

The district court also erred in allowing the prosecutor to elicit
testimony from Windsor that he had been charged with felonies and
that he had entered into settlement discussions with the State.
Although Windsor was a pro se defendant and required to know the
rules of law and evidence, the district court has a corresponding
obligation to ensure the laws are followed and prosecutor does not take
advantage of the defendant’s ignorance.


STANDARDS OF REVIEW

This Court reviews jury instructions for abuse of discretion. State
v. Lacey, 2012 MT 52, ¶ 15, 364 Mont. 291, 272 P.3d 1288. “In
considering whether a district court has correctly instructed the jury in
a criminal case, we determine whether the instructions taken as a
whole fully and fairly instructed the jury on law applicable to the case.”
State v. Tellegen, 2013 MT 337, ¶ 5, 372 Mont. 454, 314 P.3d 902 (citing

State v. Hocter, 2011 MT 251, ¶ 14, 362 Mont. 215, 262 P.3d 1089).
Where, as in Windsor’s case, a defendant asserts the district court
misinterpreted the meaning and application of the mental state of the
offense, this Court reviews the district court’s interpretation or
application of the law to determine if such interpretation or application
was correct. State v. Lambert, 280 Mont. 231, 234, 929 P.2d 836, 848
(1996).

“Alleged Brady violations are reviewed de novo.” United States v.
Brady, 67 F.3d 1421, 1428 (9th Cir. 1995). Typically, a district court’s
ruling on a motion for a mistrial is reviewed to determine whether the
district court abused its discretion. State v. Partin, 287 Mont. 12, 18,
951 P.2d 1002 (1996).

“In general, this Court does not address issues of prosecutorial
misconduct pertaining to a prosecutor’s statements not objected to at
trial. However, we may exercise our discretion and review such issues
under the plain error doctrine.” State v. Lawrence, 2016 MT 346, ¶ 6,
386 Mont. 86, 385 P.3d 968. (internal citations and quotations omitted).
“Once the doctrine is invoked, this Court’s review is grounded on our
‘inherent duty to interpret the constitution and to protect individual
rights set forth in the constitution.’” Id (quoting and citing State v.
Finley, 278 Mont. 126, 134, 915 P.2d 208, 213)).


ARGUMENTS

I. Conduct versus Result Mental State Instructions
“It is a basic rule that the trial court’s instructions must cover
every issue or theory having support in the evidence.” State v. Thorton,
218 Mont. 317, 320, 708 P.2d 273, 276 (1985). Additionally, it is a trial
court’s independent duty to ensure the jury instructions in a criminal
case fully and fairly instruct the jury on the law applicable to the case.
C. Wright, Federal Practice and Procedure, § 485, p. 375 (3d ed.2000)
(“It is the duty of the trial judge to charge the jury on all essential
questions of law, whether requested or not”). “[T]he essence of a fair
trial is ensuring that the jury is provided the correct legal principles so
that it may reach the proper conclusion based on the law and the
evidence.” People v. Novak, 643 N.E.2d 762, 774 (Ill. 1994). “Jury
instructions serve an important role in trial. They guarantee decisions
consistent with the evidence and the law. . . .” State v. Andress, 2013
MT 12A, ¶ 14, 368 Mont. 248, 299 P.3d 316.

Here, although Windsor’s proposed instructions are neither a
model of brevity nor fashioned in a manner normally seen by trial
courts, they do adequately set forth the correct result-based definitions
for “knowingly” and “purposely.” This Court has instructed that
“[d]istrict courts should ‘grant wider latitude to pro se litigants’ as long
as that latitude does not prejudice the other party.” State v. Daniels,
2017 MT 163, ¶ 17, ___ Mont. ___, ___ P.3d ___ (quoting and citing
State v. Ferre, 2014 MT 96, ¶ 16, 374 Mont. 428, 322 P.3d 1047). Thus,
Windsor should not be expected to craft his instructions “with the
discrimination of an Oxford don,” Davis v. United States, 512 U.S. 452,
459 (1994) (internal citations and quotations omitted), providing that
both the State and the district court can determine the substance of the
proposed instruction.

In Windsor’s case, it was clear from well before trial that a main
portion of his defense was that he was faced with Hobson’s choice:
being required to serve Boushie with legal paperwork in other civil
litigation and a TOP with a scope that completely prohibited Windsor’s
ability to perform that service. Distilled, Windsor’s defense is that he
did not intend to violate the TOP because he had taken steps not to
serve Boushie directly, but legal counsel for Boushie’s employer. In
other words, Windsor took careful, reasoned steps to ensure that his
conduct did not cause the result of violating the TOP. Again, his
proposed instructions reflect both that reality and that theory of
defense.

Windsor voir dired jurors on the subject. He asked the venire “If I
tell you, as I will tell you, that I never intended to commit a crime,
would that cause you to doubt that I’m telling the truth? And we’ll
start with you [indicating to a member of the venire].” (Tr. at 120).
The potential juror answer, “Well, intent is a - - is a - - I don’t know
what you intend. I just know the resulting action. I wouldn’t know
what the intention is without some sort of story, and then I wouldn’t be
sure.” (Id). Windsor even tried to introduce exhibits which showed his
attempts to avoid sending anything to Boushie. “What [defendant’s
proposed exhibit 14) has to do with, all of those have to do with showing
mental state and the attempts to avoid sending anything directly to the
petition in this case who was - - Sean was a protected person.” (Tr. at
72). In his opening statement, Windsor argued, “There is a
requirement that you have to knowingly and purposefully do
something, and based on my reading of the case law relative to that it
means you have to have a guilty mind. You have to have an intent.
You have to have an intent that you are going to commit a crime.” (Tr
at 161). While not necessarily the correct legal language, Windsor is
advocating for a result-based theory of defense and relying on the
correct mental state instructions.

This Court is aware of the varying legal definitions of both
“purposely” and “knowingly” that appear in the pattern Montana
Criminal Jury Instructions and the accompanying caution that appears
in the comment section. Both the caution and this Court’s
jurisprudence make it very clear that it is error to give a jury all
possible definitions of “knowingly” and “purposely.” It is also error to
give the incorrect definitions. State v. Rothacher, 272 Mont. 303, 901
P.2d 82 (1995); State v. Lambert, 280 Mont. 231, 929 P.2d 846 (1996);
State v. Patton, 280 Mont. 278, 930 P.2d 635 (1996); State v. Johnston,
2010 MT 152, ¶ 9, 357 Mont. 46, 237 P.3d 70 (citing and quoting State
v. Azure, 2005 MT 328, ¶ 20, 329 Mont. 536, 125 P.3d 116).
Although the district court had previously described the TOP at
issue in this case as containing “vague and unintelligible prohibiton[s]”
(Doc. 150 at 8-9), the court instructed the jury that Windsor would have
the requisite mental state to violate the TOP if it was Windsor’s
“conscious object to engage in conduct of that nature.” (Doc. 189, Inst.

17). The court also instructed the jury that it could find Windsor acted
“knowingly” if the jury found Windsor was “aware of his conduct.”
(Doc. 189, Inst. 18). Both instructions undercut the state’s burden of
proof and are inconsistent with the requirements of the relevant
criminal statute. They were also inconsistent with Windsor’s theory of
defense.

Violating an order of protection is a result-based offense and
requires the result-based mental state. “A person commits the offense
of violation of an order of protection if the person, with knowledge of
the order, purposely or knowingly violates a provision of . . . an order of
(emphasis added). Time and time again, this Court has issued opinions
holding that when a criminal offense requires that a defendant act
“purposely” or “knowingly,” the district court is required to instruct the
jury on the definition of purposely and the definition of knowingly that
applies in the context of the particular crime.” Patton, 280 Mont. at
291, 930 P.2d at 643.

Where an offense criminalizes particularized conduct, the
court must instruct the jury with the “conduct-based”
definition, i.e., a person acts purposely when it is his conscious object to
engage in that conduct, and he acts knowingly when he is aware of his
conduct. See Lambert, 280 Mont. at 236, 929 P.2d at 849. Where,
however, an offense does not describe particularized conduct but
instead the result of conduct, then the court must instruct the jury with
the “result-based” definition, i.e., a person acts purposely when it is his
conscious object to cause that result, and he acts knowingly when he is
aware that it is highly probable that the specified result will be caused
by his conduct. Id.

The statute prohibiting violation of an order of protection does not
set forth particular conduct which, if engaged in, results in the
commission of the offense; rather, one “may engage in a wide variety of
conduct and still commit the offense.” Id. Mont. Code Ann. § 45-5-626
seeks to avoid the singular result of the violation of a protective order,
not the many forms of conduct that result in the violation. In light of
this statutory scheme, the district court erred in giving the “conductbased”
instructions. The effect of these instructions “was to alter the
State’s burden of proving beyond a reasonable doubt the elements of
the offense.” Lambert, 280 Mont. at 237, 929 P.2d at 850. As this
Court has noted, “to prove that a defendant was aware of his conduct is
one thing; to prove that he was aware of the high probability of the
risks posed by his conduct is quite another.” Id.

As instructed in Windsor’s case, the state did not have to prove,
and the jury did not have to find, beyond a reasonable doubt, that
Windsor intended to cause the result of violating the TOP, or that he
was aware of a high probability that his conduct would cause that
result. All the state had to prove and the jury had to find was that
Windsor was aware of his conduct, e.g., contacting an attorney for the
University of Montana. This is a much lower burden than proving he
intended to violate the TOP with that conduct.

In his own legally untrained way, Windsor presented the above
argument to the district court. Windsor primarily relied on State v.
Starr, 204 Mont. 210, 664 P.2d 893 (1983) to advocate for the result based
definitions of “purposely” and “knowingly.” While Starr is not as
on-point as cases like Johnston, Lambert, or Patton, it does address the
two necessary functions of a district court in selecting the appropriate
mens rea jury instructions. “Thus, two functions are performed in
analyzing the statute which describes an offense. First, determining
which mental state must be proved, and second, determining to which
of the four conditions or occurrences the mental states relate.” Starr,
204 Mont. at 221, 664 P.2d at 898. The four conditions referenced in
Starr are co-opted from a law review article upon which the Starr court
relied.

The Montana code uses only three classifications in
evaluating the defendant’s mental state: purposely,
knowingly, and negligently. These mental state
classifications are defined in relation to four objectively
measurable conditions or occurrences: conduct,
circumstances, facts, and result. However, all four criteria
do not apply to each mental state. ‘Purposely,’ which means
with a conscious objective, relates to conduct or result.

‘Knowingly,’ defined as ‘awareness,’ relates to conduct,
circumstances, facts or result.
Starr, 204 Mont. at 219, 664 P.2d at 898 (citing and quoting, J.
Essman, A Primer on Mental State in the Montana Criminal Code of
1973, 37 Mont. L. Rev. 401, 403-04 (1976)).

With Starr as authority, Windsor offered an instruction that
“purposely refers to the defendant’s objective or intended result.”
(Appendix D at 37). As for his proposed “knowingly” instruction,
Windsor proposed the following language: “A person acted knowingly if
he knew what he did was a crime, or there was a high probability that
his conduct would cause a crime.” (Appendix D at 48). He also argued
for instructing language reading “[t]o find the Defendant guilty in this
case, the State has to prove the Defendant was aware that his conduct
would violate an order of protection or that there was a high probability
that his conduct would violate an order of protection.” (Id). Windsor
was clearly advocating for the legally correct result-based definitions.
In fact, Windsor cited to the district court this Court’s opinions in
Johnston and State v. Azure, 2005 MT 328, ¶ 20, 329 Mont. 536, 125
P.3d 1116.

There is a great deal of chaff in Windsor’s proposed jury
instructions. Contained within, however, are the kernels of the mental
state instructions which fully and fairly instruct the jury on the law
applicable to the case. The district court erred in not gleaning these
kernels and then giving the jury the correct mental state definitions of
“purposely” and “knowingly.” The district court had an obligation to
work a little harder to glean these kernels in Windsor’s instructions for
two reasons. First, because Windsor was pro se, the district court
should have extended Windsor wider latitude as long as it did not
prejudice the state. Second, Windsor actually presented the court with
the correct mental state instructions.

The district court abused its discretion in denying Windsor’s
instruction. When jury instructions were settled, the district court
started with the state’s jury instructions. While the state’s proposed
instructions are not found in the court record, the substance can be
ascertained from the discussion. When the court came to state’s
proposed mental state instructions 17 and 18, Windsor objected and
directed the court to his instructions in which he “provided a detailed
proposed instruction, along with extensive backup information, about
mens rea, actus rea. Purposely. When it’s the ‘person’s conscious object
to engage in conduct of that nature.’ If I’m a juror, it means nothing to
me.” (Tr. 298). The district court overruled Windsor’s objections
stating, “Well it’s the statutory definition, the language that’s in the
standard instructions, so it’s language that I’m aware the Montana
Supreme Court has approved.” (Id). Similarly, the court overruled
Windsor’s same objection to the State’s proposed definition of
“knowingly.” The court did, however, tell Windsor that it would look at
Windsor’s instruction after it had a chance to review them in greater
detail. (Tr. 302-03, 304).

After the Court had an opportunity to review Windsor’s proposed
instructions as well as the State’s objections to Windsor’s instructions,
the district court overruled all of Windsor’s objections by simply
“rely[ing] on the state’s notice of objections to defendant’s proposed jury
instructions, court document 172.” (Tr. 308). The state’s “Notice of
Objections to Defendant’s Proposed Jury Instructions” consisted of a
“spreadsheet of objections to Defendant’s proposed instructions.” (Doc.
172). Regarding Windsor’s proposed “purposely” instruction, the
State’s objection reads as follows: “D’s contains inaccurate statement of
law.” The spreadsheet contains the same objection to Windsor’s
“knowingly” instruction.

That is the sum total of the State’s objection.

The sum total of the district court’s exercise of discretion is reference to
the State’s objection in overruling Windsor’s instructions. “That a trial
court has a right to exercise its discretion does not mean a trial court
should not disclose the reasons underlying a discretionary act. Absent
these reasons, we as an appellate court, are left to guess as to why the
trial court made a particular decision.” State v. Stumpf, 187 Mont. 255,
226, 609 P.2d 298, 299 (1980). “[A] court’s failure to exercise its
discretion is, in itself, an abuse of discretion.” State v. Weaver, 276
Mont. 505, 509, 917 P.2d 437, 440 (1996).

Neither the State nor the district court elaborated on what
aspects of Windsor’s proposed “purposely” and “knowingly” instructions
each believed to be misstatements of law. Again, it is certainly true the
instructions contain extraneous material that may be legally incorrect.
However, the fact remains that Windsor’s proposed instructions at
their core presented the district court with the correct mental state
definitions. Nothing in the district courts rulings on either the State’s
proposed instructions or Windsor’s proposed instructions on the topic
evidence any consideration of whether Windsor’s crimes are conductbased
or result-based. Absent evidence of the exercise of this
discretion, or discussion as to why Windsor’s proposed instructions are
denied, this is an abuse of discretion by the district court.
Given the above, Windsor respectfully requests that this Court
conclude the district court erred in instructing the jury, vacate his
conviction, and remand the case to the appropriate court for a new
trial.

II. Due Process, Corruption, and Brady v. Maryland
The state violated Windsor’s due process rights in withholding
information pursuant to Brady v. Maryland, 373 U.S. 83 (1963).
Specifically, the state and its agency, the Missoula County Police
Department, withheld critical impeachment information on the lead
investigator in Windsor’s case, Det. Shermer. Although Det. Shermer
did not testify, he was listed on both parties’ witness lists, and his role
in Windsor’s case loomed large.

In Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d
215 (1963), the United States Supreme Court held “that the
suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material to
guilt or punishment. . . .” Brady, 373 U.S. at 87. Montana has adopted
the rationale of Brady. State v. Arlington, 265 Mont. 127, 151-152, 875
P.2d 307, 321-322 (1994). The United States Supreme Court has
broadened Brady to the point where a defendant’s failure to specifically
request does not alleviate the government or the State from its
obligation to disclose favorable evidence. United States v. Agurs, 427
U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976).

In Montana, a party seeking to establish a Brady violation must establish:

(1) the State possessed evidence, including impeachment
evidence, favorable to the defense; (2) the petitioner did not
possess the evidence not could he have obtained it with
reasonable diligence; (3) the prosecution suppressed the
favorable evidence; and (4) had the evidence been disclosed,
a reasonable probability exists that the outcome of the
proceedings would have been different.

State v. Giddings, 2009 MT 61, ¶ 48, 349 Mont. 347, 208 P.3d 363
(internal citations omitted). The United States Supreme Court has
consistently held that the government “violates a defendant’s right to
due process if it withholds evidence that is favorable to the defense and
material to the defendant’s guilt or punishment.” Smith v. Cain, 565
U.S. 73, 75 (2012). “Evidence is ‘material’ within the meaning of Brady
when there is a reasonable probability that, had the evidence been
disclosed, the result of the proceeding would have been different.” Cone
v. Bell, 556 U.S. 449, 469-470 (2009). “A reasonable probability does
not mean the defendant ‘would more likely than not have received a
different verdict with the evidence,’ only that the likelihood of a
different result is great enough to ‘undermine confidence in the
outcome of the trial.’” Smith, 565 U.S. at 75 (citing and quoting Kyles
v. Whitley, 514 U.S. 419, 434 (1995)). “The question is not whether the
defendant would more likely than not have received a different verdict
with the evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confidence.”
Kyles, 514 U.S. at 434. “A defendant need not demonstrate that after
discounting the inculpatory evidence in light of the undisclosed
evidence, there would not have been enough left to convict.” Kyles, 514
U.S. at 434-35.

After trial and sentencing, Windsor discovered that Det. Shermer
had been disciplined by the Missoula Police Department in October
2010 for “violating MPD policies.” (Appendix F). While this alone may
not constitute a Brady violation, it was the nature of Det. Shermer’s
violations that demonstrate a Brady violation occurred in Windsor’s
case. As noted in Appendix F, Det. Shermer had been in search of a
another defendant with an outstanding warrant. Det. Shermer had
reason to believe that defendant was in Billings. “Shermer contacted a
job service agency posing to be the wanted defendant and used the
personal identifiers known to him through [Shermer’s] access to the
[defendant’s] case file. After providing verifying information from the
file, Detective Shermer obtained the user name and password for the
defendant’s job service account and his last know address.”

In her letter to the Missoula Police Department, the Missoula
County Attorney’s Office acknowledges that, as a result of his actions,
Det. Shermer “must be placed on a Giglio/Brady list, which will
negatively impact his ability to perform his duties as a witness in our
cases.” (Appendix F).   (CLICK HERE TO READ LETTER)

Although the county attorney’s letter indicates that it did not
learn of Det. Shermer’s discipline until late June 2016, after Windsor’s
trial and sentencing, the county attorney does address her obligations
under Kyles which, in the words of the county attorney, “imposed upon
the prosecutor an affirmative ‘duty to learn of any favorable evidence
known to the others acting on the government’s behalf, including the
police,’ and a resulting duty to disclose that evidence to the defense.”
(Appendix F) (citing and quoting Kyles, 514 U.S. at 419). The county
attorney acknowledges that her “office will now have to go back and
notify every defendant who has been convicted in a case investigated by
Detective Shermer since October, 2010 of these findings. This will
inevitably lead to post-conviction litigation in many cases.” (Appendix
F) (emphasis added).

Det. Shermer was the lead investigator in Windsor’s case, and the
material included in Appendix F should have been discovered and
disclosed by the state. During trial, the state informed the court that
“Detective Shermer verified that the web site [www.seanboushie.com]
was still active after the order of protection had been issued.” (Tr. 54).
That the site was still active, this formed the basis of one of the
charges against Windsor. Det. Shermer was present during trial and
was introduced to the jury at the beginning of trial. (Tr. 92). Members
of the venire knew Det. Shermer. (Tr. 95). In his cross-examination of
Boushie, Windsor asked Boushie if he had lied to Det. Shermer. (Tr.
216). Finally, Det. Shermer was the only named law enforcement
officer appearing numerous times on the State’s Affidavit and Motion
for Leave to file Information because Det. Shermer took the original
complaint from Boushie. (Doc. 1)

For better or for worse, Windsor maintained in his closing
argument that Montana was “the most corrupt state in the country.”
(Jan. 6, 2016, Vol. I at 33). Prior to trial, he had also made a film
proclaiming this sentiment. As part of his zealous attempt to represent
himself pro se, Windsor had even filed a request to depose Det.
Shermer and subpoena documents from him. (Doc. 70). The district
-33-
court denied this request because the state “agreed it would make these
witnesses avail. for interview by Defendant.” (Doc. 70 at 1). It is
unknown whether Windsor ever interviewed Det. Shermer, but given
Windsor’s zeal and attempts to weed out corruption, had he know of the
information contained in Appendix F, he most certainly would have
used it. Windsor did allege that he met with the State’s attorney and
Det. Shermer regarding this case on August 17, 2015. (Doc. 92 at 2).
Windsor also argued that “Chris Shermer never contacted the
Defendant or anyone other than Sean Boushie and the University of
Montana about these charges. None of these people has any knowledge
about what the defendant did ‘knowingly and purposely’ or otherwise,
so they must not be allowed to testify that they do.” (Doc. 96 at 10).
Finally, in pretrial motions, Windsor argued, “William M. Windsor
must be allowed to introduce character evidence regarding Sean
Boushie and Chris Shermer. Both are liars, and evidence must be
presented.” (Doc. 97 at 5). This statement was made in a Response to
the State’s First Motions in Limine.

Windsor’s pretrial pleadings repeatedly accuse Det. Shermer of
threatening Windsor with a federal offense, lying, and mocking him.
The evidence in Appendix F was certainly material to Windsor’s theory
of defense and his case in chief. (Doc. 98 and Ex. A, thereto). That Det.
Shermer did not end up testifying at trial does not make the
Brady/Giglio information contained in Appendix F any less material.
In fact, according to this Court’s decision in State v. Weisbarth, 2016
Mont. 214, 384 Mont. 424, 378 P.3d 1195, the fact that Det. Shermer
did not testify may make the information more material.

In Weisbarth, this court addressed a Brady violation in the form
of medical records for an alleged child victim. After a specific request
for the records, the defense was presented with a heavily redacted
version of the documents. Weisbarth, ¶¶ 1-6. The redacted material
“contained evidence that was clearly favorable to the defense. . . .”
Weisbarth, ¶ 1. One of the reasons that the material was favorable was
because it was plain from the record that it was “relevant to the
defense’s trial strategy.” Weisbarth, ¶ 3. On appeal, the State raised a
number of arguments against Weisbarth’s Brady argument, all of
which were dismissed by this Court.

One of the state’s arguments was that “for the purposes of Brady,
inadmissible evidence cannot be considered favorable evidence because
it cannot be used by the defense at trial.” Weisbarth, ¶ 23. This Court
agreed “with the majority of courts that have addressed the issue. The
focus of the inquiry should not be on whether the evidence is admissible
or inadmissible, but whether the evidence is favorable to the defense
and could have affected the outcome of the proceedings.” Weisbarth, ¶
24. This Court properly noted the need for the material at both a trial
and pre-trial stage. The latter is especially critical because it affects
both defense strategy and investigation.

We decline to develop a rule that would foreclose the
development of defense strategy and investigation or to
presuppose what information the defense may have
developed as a result of properly disclosed evidence. In light
of the policy underlying Brady, we believe that even
inadmissible evidence could have ‘substantial value to the
defense that elementary fairness requires it to be disclosed.’
Weisbarth, ¶ 24 (citing and quoting Agurs, 427 U.S. at 110). The
material contained in Appendix F would have been critical to both
Windsor’s defense strategy and investigation and thus should have
been disclosed to him.

A second argument rebuffed by this Court in Weisbarth was that
Weisbarth could have obtained the exculpatory evidence through the
exercise of reasonable diligence. Weisbarth, ¶ 29. While this Court
acknowledged that its Brady requirement “is now seemingly at odds
with that of the Ninth Circuit,” it declined to address the conflict and
concluded that Weisbarth had exercised diligence in his quest for the
medical records. Weisbarth, ¶ 30 (citing and quoting Amando v.
Gonzalez, 758 F.3d 1119, 1136 (9th Cir. 2014)). “Here, Weisbarth had
no way of knowing what evidence the medical records contained and he
did the only thing he could do to obtain the records by filing a motion
with the District Court requesting their disclosure.” Weisbarth, ¶ 30.
Although he did not have defense counsel for the lion’s share of
his case, Windsor exercised a similar diligence to Weisbarth. Windsor
filed numerous motions for the production of documents, requests for
depositions, interviews, and records. On May 1, 2015, while still in
custody, Windsor filed a “Motion Regarding Discovery.” (Doc. 38). In
this motion Windsor sought “approval of the Court to take depositions
by video and telephone” of the witnesses against him. One of these
witnesses was Det. Shermer. (Doc. 3 at 3). Windsor made a specific
request for the court to issue subpoenas for depositions with document
production to all of the witnesses named in the State’s Information.
(Doc. 70). Among those witnesses was Det. Shermer. In his request,
Windsor attached an exhibit detailing the documents he wanted
produced by Det. Shermer. The documents requested included “All
documents relating or referring to, or evidencing, reflecting or
constituting your job application with the Missoula Police Department.”
(Doc. 70, Request for Deposition of Chris Shermer, Ex. at 4)10.
Notwithstanding the county attorney’s own concession that her office
had an affirmative obligation to obtain Det. Shermer’s disciplinary
record and disclose it, Windsor’s request for deposition and document
production is a reasonable exercise of diligence for one unschooled in
the law and discovery requests. In short: Windsor exercised reasonable
diligence in attempting to obtain the exculpatory and impeachment
material contained in Appendix F.

Windsor’s case establishes not one but all of the necessary
10This document can be found at page 898 of the 2,488 page
combined district court record.
requirements for a Brady violation. As a result, a new trial is the
appropriate remedy. “[O]nce a court finds a Brady violation, a new
trial follows as the prescribed remedy, not as a matter of discretion.”
United States v. Oruche, 484 F.3d 590, 595-96 (D.C. Cir. 2007).
III. District Court Error and the Right to a Fair Trial

Twice during her cross-examination of Windsor, the prosecutor
asked Windsor impermissible questions which violated his right to a
fair trial as they were clearly impermissible and prejudicial. However,
at the time of the questions, Windsor was his own counsel and a
witness; therefore, he was both unable to register an objection to the
questions and unaware that he had to register an objection.
The state’s cross-examination of Windsor featured the following
two exchanges.

State: One of your contentions is that this court is corrupt, correct?

Windsor: Yes.

State: But, in fact, this court actually dismissed three of the charged counts.

Windsor: Yes. Three felonies.

(Jan. 6, 2016, Vol. I. at 22).
. . . .
State: Well, you and I discussed resolution of this case, correct?

Windsor: You offered to settle several times.

State: You did not want to do that, correct?

Windsor: I said that if you wanted to dismiss the charges, I would agree.

State: And I offered to dismiss those charges, correct?

Windsor: With strings attached, yes.

State: Because all I told you I wanted out of this case was for you to leave Mr. Boushie alone.

(Jan. 6, 2016, Vol. I. at 26-27).

Both exchanges violated Windsor’s right to a fair trial and Rule
410 of the Montana Rules of Evidence. Rule 410 reads in relevant part:
Evidence of a plea of guilty, later withdrawn, or a plea of
nolo contendere, or of an offer to plead guilty or nolo
contendere to the crime charged or any other crime, or of
statements made in connection with any of the foregoing
pleas or offers, is not admissible in any civil or criminal
action, case or proceedings against the person who made the
plea or offer.

It is prosecutorial misconduct to tell a jury of offers to plead guilty or
settlement offers. See State v. Sha, 292 Minn. 182, 193 N.W.2d 829
(Minn. 1963) (ordering a new trial when prosecutor elicited testimony
that defendant said he wanted to plead guilty). Here, although
Windsor had not offered to plead guilty, the prosecutor’s questioning
still violated Rule 410 because they revealed “statements made in
connection with any of the foregoing pleas or offers.” Mont. R. Evid.

The prosecutor similarly erred in eliciting testimony from
Windsor that he had been charged with three felonies that the district
court had dismissed. Such testimony invites unwarranted speculation
in the minds of jurors and impermissibly invites speculation on the
defendant’s potential punishment. State v. Zuidema, 157 Mont. 367,
373-74, 485 P.2d 952, 955 (1971). “[P]roviding jurors sentencing
information invites them to ponder matters that are not within their
province, distracts them from their fact finding responsibilities, and
creates a strong possibility of confusion.” State v. E.M.R., 2013 MT 3, ¶
24, 368 Mont. 179, 292 P.3d 451 (citing Shannon v. United States, 512
U.S. 573, 579, 114 S. Ct. 2419, 2424, 129 L. Ed. 2d 459 (1994)).

This Court has held that “one accused of a crime is entitled to
have guilt or innocence determined solely on the basis of the evidence
introduced at trial, not on the grounds of official suspicion, indictment,
continued custody, or other circumstances not adduced as proof at trial.
. . .” State v. Williams, 184 Mont. 111, 113, 601 P.2d 1194, 1196 (1979)
(quoting Taylor v. Kentucky, 436 U.S. 478, 484-85, 98 S. Ct. 1930, 1934-
35, 56 L. Ed. 2d 468 (1978)). Here, the State elicited testimony from
Windsor that the Court had dismissed three felonies. The question was
objectionable, and the answer permitted the jury to speculate on why
the charges where dismissed, the severity of the charges remaining,
and what the previous felonies might have been.

It is also not beyond reason that a juror may have speculated that
Windsor had his previous felony charges dropped on some type of legal
technicality, thus triggering that juror’s desire to balance the scales or
convict Windsor of something. This logic is simply an extension of why
jurors are often precluded from learning of a defendant’s prior
convictions or previous allegations. “Unfair prejudice can arise from
evidence that arouses the jury’s hostility or sympathy for one side
without regard to its probative value.” State v. Bieber, 2007 MT 262, ¶
59, 339 Mont. 309, 170 P.3d 444. Similarly, it is also why courts
disallow evidence that a defendant has been previously acquitted of a
serious crime. See e.g., Blackburn v. Cross, 510 F.2d 1014, 1019 (5th
Cir. 1975) (although evidence of guilt was “quite convincing,” admission
of testimony that the appellant committed a prior crime for which
appellate was acquitted was not harmless error).

The reality is that, other than the jurors, Windsor was the least
legally educated individual at his trial. Had he been represented by
competent counsel, that counsel would have known to object to these
questions and to request a mistrial when the prosecution introduced
evidence that Windsor’s prior felony charges had been dismissed. Even
if the prosecutor wades into these prejudicial waters hoping to take
advantage of Windsor’s legal skill, it was the district court’s obligation
to stop the prosecutor and ensure Windsor received a fair trial. State v.
Griffin, 2016 MT 231, ¶ 9, 385 Mont. 1, 386 P.3d 559 (“A criminal
defendant has a right to a fair trial under both the United States and
Montana Constitutions. The district court’s bears the duty to insure
that the defendant receives a fair trial.”) (internal citations and
quotations omitted).

Given Windsor’s lack of legal training, the prosecutor’s comments,
and the district court’s failure to intervene, Windsor’s right to a fair
trial was violated, and he respectfully requests this Court reverse his
conviction and remand his case for a new trial.

CONCLUSION

Given the events at trial including problems with jury
instructions and improper questioning, as well as the subsequently
discovered Brady material, it is clear that Windsor’s conviction stands,
at best, on shaky ground. Given the totality of these errors, this Court
can have no confidence in the validity of the jury’s verdict. Therefore,
Windsor respectfully requests that this Court reverse and remand his
case to the appropriate court for a new and fair trial.

Respectfully submitted this 26th day of July, 2017.
/s/ Colin M. Stephens
Colin M. Stephens
SMITH & STEPHENS, P.C.
Attorney for Windsor "


Dated this 26th day of July, 2017.

/s/ Colin M. Stephens
Colin M. Stephens
SMITH & STEPHENS, P.C.
Attorney for Appellant

CERTIFICATE OF SERVICE
I, Colin M. Stephens, hereby certify that I have served true and accurate copies of the foregoing
Brief - Appellant's Opening to the following on 07-26-2017:


Timothy Charles Fox (Prosecutor)
Montana Attorney General
215 North Sanders
PO Box 201401
Helena MT 59620
Representing: State of Montana

Kirsten H. Pabst (Prosecutor)
200 W. Broadway
Missoula MT 59802
Representing: State of Montana

Chad M. Wright (Attorney)
Representing: William M. Windsor
Service Method: eService
Electronically Signed By: Colin M. Stephens
Dated: 07-26-2017  "

Source and Full Document as Filed
https://drive.google.com/file/d/0Bzn2NurXrSkicG9SeklSN3BaV0k/view


Pabst Letter,
https://drive.google.com/file/d/0Bzn2NurXrSkicXpMQnFRR2VsZHc/view

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