State v. Laster

No. 85-622

I N THE SUPREME COURT O THE STATE O MONTANA
F F

1986

STATE O MONTANA,
F

P I - a i n t i f f and A p p e l l a n t ,

-vs-

VAN BUREN LASTER,

Defendant and Respondent.

APPEAL F O :
R M D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Y e l l o w s t o n e ,
The, Honorable Diane B a r z , Judge p r e s i d i n g .

COUNSEL O RECORD:
F

For Appellant:

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Dorothy McCarter, A s s t . A t t y . G e n e r a l , Helena
Harold H a n s e r , County A t t o r n e y , B i l l i n g s , Montana
T e r e s a M. O'Connor, Deputy County A t t o r n e y , B i l l i n g s

For Respondent :

Robert L. S t e p h e n s , J r . , B i l l i n g s , Montana

S u b m i t t e d on B r i e f s : J u l y 31, 1986

Decided: September 9 , 1986

Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

Van Buren Laster was charged in the District Court,
Thirteenth Judicial District, Yellowstone County, with one
count of criminal sale of dangerous drugs, a felony, as
specified in 45-9-101, MCA. In the course of the trial
before a jury, during the presentation of the State's case,
the District Court granted defendant's motion for a mistrial.
In a memorandum subsequent to the grant of the mistrial, the
District Court found that further prosecution of the
defendant wou1.d result in double jeopard-y. On August 30,
1985, the District Court granted defendant's motion to
d-ismiss the cause with prejudice. The State appeals from the
order of dismissal.
We decide this case, as did the District Court, under
federal law and federal precedents. In so considering the
cause, we affirm the District Court.
The double jeopardy clause of the fifth amendment to the
federal Constitution protects a criminal defendant from
repeated prosecutions for the same offense. United States v.
Dinitz (1976), 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47
L.Ed.2d 267, 273. The double jeopardy clause protects a
defendant in his "valued right to have his trial completed by
a particular tribunal. . . ." Wade v. Hunter (1949), 336
U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978. The
criminal defendant's right to have his case finally decided
by the jury first selected is not absolute. A court will
lift the double jeopardy bar to a second trial where
"manifest necessity" exists, as when a mistrial is declared
by the judge following a lack of verdict by a hung jury.
United States v. Perez (1824), 9 Wheat. 579, 580.
Where, however, the defendant moves for a mistrial and
the same is granted, the "manifest necessity" standard does
not apply. United States v. Tateo (19641, 377 U.S. 463, 4671
84 S.Ct. 1587, 1590, 12 L.Ed.2d 448, 451. There is again a
narrow exception to this rule; where the defendant moves for
mistrial but is goaded into doing so by the prosecutor's
actions, the double jeopardy clause bars retrial even though
defendant himself moved for the mistrial. United States v.
Dinitz, supra.
In Oregon v. Kennedy (1982), 456 U.S. 667, 679, 102
S.Ct. 2083, 2091, 72 L.Ed.26 416, 426, the United States
Supreme Court outlined the bounds of the narrow exception
under federal law. The general rule was that a motion by a
defendant for mistrial in effect waived his claim to double
jeopardy :
Because of the confusion which these varying
statements of the standard in question ha.ve
occasioned in other courts, we deem it best to
acknowledge the confusion and its justifiability in
the light of these statements from previous
decisions. We do not by this opinion lay down a
flat rule that where a defendant in a criminal
trial successfully moves for a mistrial, he may not
thereafter invoke the bar of double jeopardy
against a second trial. But we do hold that the
circumstances under which such a defendant may
invoke the bar of double jeopardy in a second
effort to try him are limited to those cases in
which the conduct qivinq - -to the s u c c e s s f ~
rise -
motion - - a mistrial was intended to provoke the
for -
defendent into moving - - a mistrial.
for (Emphasis
added. )
I n determining the intent of the prosecutor in the case

at bar, the District Court relied on the concurring opinion
of Justice Powell that because "subjective" intent may often
he unknowable, a court should rely primarily upon the
objective facts and circumstances of the particular case.
Oregon v. Kennedy, 456 U.S. at 679-80, 102 S.Ct. at 2092, 72
L.Ed. 2d at 427 (Powell, J., concurring). In considering the
objective facts and circumstances of the case at bar, the
District Court found "that the prosecutor did attempt to
provoke this mistrial to afford the State a more favorable
opportunity to convict by having an opportunity to charge the
defendant with solicitation or sexual intercourse without
consent. "
As we noted, the charge against Laster in this case was
that on October 7, 1984, he had committed a felony in the
criminal sale of dangerous drugs. The information charging
the defendant was supported by an affidavit of the deputy
county attorney, stating Laster gave P.S., then aged 16,
cocaine before engaging in sexual intercourse with her. The
affidavit further recited that after she left the defendant,
P.S. called her mother. She then went to the hospital for a
rape exam and a blood test. The affidavit recites that her
blood test was positive for cocaine.
The information against the defendant was not filed
until November 9, 1984.
A urine sample was taken on the evening of October 7
from P.S. and was analyzed by a laboratory technician at the
hospital in Billings.
A sample of her blood was also sent to the State Crime
Lab. The hospital technician detected traces of a substance
that may have been a cocaine derivative in the urine sample.
That sample was apparently destroyed after the analysis was
completed. The blood sample sent to the State Crime Lab
which has more sensitive testing equipment, was not preserved
in such a way that the presence or absence of cocaine could
be established from that sample in that laboratory.
 On February 8, 1985, defendant's counsel filed a motion
to dismiss on the ground that the urine sample was
adulterated through the State's testing procedures and so
there was no independent corroboration of the complainant's
testimony.
On February 20, 1985, the State, sensing from the
laboratory report that its evidence was weak on whether
cocaine was present, moved to amend the information to add an
alternative count--criminal sale of imitation and dangerous
drugs.
At a hearing on the two motions on March 5, 1985, a
defense expert testified that the hospital technician's test
results were consistent with substances that are contained in
many over-the-counter cold remedies, as well as cocaine, and
that the presence of those substances produce a similar
result in the type of test performed. After the hearing, the
District Court denied the motion to amend the information,
and denied the defendant's motion to exclude the laboratory
result provided that the State established a chain of
evidence up to the point of the laboratory examination.
During the hearing, Laster was called to the stand. As
to that portion of the hearing, the court found:
During that hearing, the Defendant took the stand.
On cross-examination, the prosecutor attempted to
get the Defendant to admit that he is a pimp.
During this line of questioning, defense counsel
objected no less than fifteen, times. The final
objection was on the grounds that the examination
was improper and consisted of discovery on the part
of the State. This objection was sustained.
Before trial, the defendant filed a motion in limine
regarding the foundation for the State's introduction of the
urinalysis results and regarding hearsay evidence of other
crimes. The District Court granted the motion on foundation
to the extent that the State had to establish the chain of
custody until the urine sample reached the lab technician.
The court further granted the motion in limine as to evidence
of other crimes to the extent that evidence of solicitation
and prostitution were not part of the - yestae and could
res
not be introduced as part of the State's case-in-chief. No
notice under State v. Just (1979), 184 Mont. 262, 273, 602
P.2d 957, 963 had been given. (Under Just, if the State
intends to produce evidence of other crimes at the trial of
the defendant, the State must give notice of such intention
prior to the trial.)
On the morning of the trial, in chambers, Laster's
counsel moved for an order in limine respecting conversations
at which the defendant was not present between the
defendant s brother, Edd-y Laster, and P. S ' s sister, and .
P.S., relating to whether P.S. had agreed to go to Rockford,
Illinois, with the defendant for the purpose of entering into
prostitution. The court ruled that such proposed evidence
was hearsay and would not be admissible unless defendant's
counsel opened up the areas on cross-examination.
When the State called its first witness, L.I., the
prosecutor tried on two occasions to elicit testimony that
either L.I. or P.S. were solicited "to go into another
profession" than that of a high school student. On each
occasion, the objection thereto was sustained.
P.S. followed L.I. as the next witness. On at least
three occasions, the District Court, upon objection,
overruled the prosecutor's attempt to elicit testimony about
conversations occurring when Van Buren Laster was not
present.
 A second development during the examination of P.S.
occurred when the prosecutor sought to characterize the
sexual intercourse between P.S. and Laster as rape. For an
understanding of that development, a statement of the facts
is necessary.
On the day of the incident, P.S. and her friend L.I. had
gone to a shopping mall in Billings, Montana, for a few
hours. They were picked up at the mall for a visit to the
house occupied by P.S.'s sister Sheila and her consort, Eddy
Laster, an admitted pimp. Eddy is the brother of the
defendant here, Van Buren. At Sheila's house there were a
number of people, including P. S., L. I., Sheila, Eddy Laster
and other persons unidentified. Van Euren did not come to
the house until later in the afternoon.
After Van Buren arrived, P.S. went upstairs to her
sister's bedroom and tried on some of her sister's clothes,
changing out of the shorts she was then wearing and into an
outfit described as a red top and gray pants. After she came
down from the upstairs bedroom, she went in Van Buren's car,
sitting in the middle of the front seat between Van Buren and
Van Buren's brother, Eddy, to a motel location, where several
women, evidentally prostitutes, were getting ready to go out
for the evening. From this location, Van Buren and P.S. took
a taxi to the Wooden Nickel Motel, where Van Buren checked
in, under the alias of Steve Horton, while P.S. stood beside
him as he checked in.
In the motel room, P.S. said she watched television,
while Van Buren busied himself around the premises. He gave
her an alcohol drink which may have been vodka, two inches
high in an ordinary motel drinking glass. She drank the
vodka voluntarily, and reported no results. In the meantime,
Van Buren got out a suitcase, and took from it some
implements that were drug paraphernalia, including test tubes
and a "bong." She testified that he took a white powdery
substance out of his suitcase, heated the substance and made
out two "lines" on a mirror. He snorted or sniffed one of
the lines and offered the other to her. She described that
he scraped off the remaining line with a razor and by holding
the razor to her nose, she was able to snort the remainder.
Following this, Van Buren took off his clothes. She stated
that she undressed herself because she didn't want him to
undress her, and apparently she got into bed with Van Buren,
where they had sexual intercourse. Later she got up, got
dressed, when two other persons appeared at the motel room
for a time, a.nd they "snorted some more coke."
Sometime in the late evening, Van Buren arranged for her
to take a taxi from the motel to her sister's home. There
she found one unidentified person and leaving him on an
excuse, went a short distance to the War Bonnet Inn, where
she called her mother.
When her mother came, P.S. told her that she had been
kidnaped by two blacks, forced to take cocaine and that she
had been raped. Her mother immediately took her to the local
hospital and a "rape kit" was formulated there including the
urine sample which was later examined by the laboratory
technician.
P.S. later admitted that the story she told her mother
was a hoax and that the same story she had told to the public
officials and examining doctor was also a hoax. She later
revamped her story to indicate that she had gone to the motel
with Van Buren, and that there he had given her the cocaine
as was described above.
 The cross-examination of P.S. by defendant's counsel was
devastating. She admitted to changing her story of the
events of the day and evening several times before the trial
and during the trial. She was faced with other statements
she had given to an examining physician following the
incident, wherein she stated she had been forced to engage in
both oral and rectal intercourse. On her cross-examination,
she professed not to know what those terms meant.
When the deputy county attorney got P.S. back for
redirect examination, she proceeded to examine P.S. on the
meanings and methods of committing oral and rectal
intercourse. At this point, the District Court recessed the
proceedings for the day and asked counsel to meet her in
chambers. It was at that time that the District Court
granted the motion for mistrial which had been made by the
defendant's counsel earlier in the day and took under
advisement the motion to dismiss the cause entirely. The
District Court later entered the written order dismissing the
cause which is the subject of this appeal.
In reaching the decision that the prosecutor had
attempted to provoke the defendant to move for a mistrial,
the court made the following add.itiona1 findings:
From these objective facts and circumstances, the
[c]ourt must determine whether the prosecutor
intended to provoke the final motion for a mistrial
to afford the State a more favorable opportunity to
convict this defendant.
This was a case where the prosecutor was aware that
the State had little evidence on the offense
charged. There were test results indicating the
presence of a substance which may have been
cocaine. There was a testimony of one witness
whose credibility could, and was, questioned.
This is a case where the prosecutor attempted,
through a series of overreaching questions, to
shift the focus of the trial from a charge of the
 criminal sale of cocaine to the Defendant's status
as a black pimp.
The prosecutor cannot have been surprised at the
defendant's motion, in light of the number of
objections raised before and during the trial to
this line of questioning.
These questions were so prejudicial. that the
defendant had little choice but to move for a
mistrial to avoid a conviction for crimes with
which he had not been charged.
It is clear from the record that the prosecutor
attempted to get into evidence, after the District Court had
ruled such evidence inadmissible, that P.S. had been
solicited by others to engage in prostitution in Rockford,
Illinois. It is clear from the record that the prosecutor
sought to characterize as a rape an act of sexual intercourse
which P.S. had described as consensual in her testimony at
trial and in her statements given to the police.
It is further clear from the record that on redirect
examination the prosecutor attempted to re-establish other
sexual crimes purported to have been committed by Laster
which P.S. had denied on her cross-examina.tionbut which she
had reported to officials or examining physicians prior to
the trial. It was at this point that the District Court
declared a recess of the trial and shortly thereafter granted
the motion for mistrial.
The State argues in brief that the Just test did not
apply in this case, and that the evidence which the
prosecutor sought to introduce was inseparably linked with
the crime charged as part of the corpus delicti. See State
v. Riley (1982), 199 Mont. 413, 649 P.2d 1273; State v.
Gillham (Mont. 1983), 670 P.2d 544, 40 St.Rep. 1576; State v.
Trombley (Elont. 1980), 620 P.2d 367, 37 St.Rep. 1871; and
State v. Frates (1972), 160 Mont. 431, 503 P . 2 d 47. In
short, the State continues to argue that the following
evidence was all admissable to prove the sale of dangerous
drugs: that the defendant was a pimp and had raped P.S. at
the time he gave her cocaine; that the defendant and his
brother were pimps; that in acquiring P.S. as one of his
prostitutes, Laster plied her with alcohol and cocaine,
anesthetizing her so as to have sexual intercourse with her
with minimal resistance. Not explained by the State is why
these crimes were not charged by information against the
defendant. Solicitation for prostitution, engaging in
prostitution, and rape, are as serious, if not more serious
than a single instance of offering cocaine to a 16 year old,
heinous enough in itself.
The State's argument falls from its own weight. P.S.
testified she had been "raped" by Van Buren Laster. The
testimony by which the prosecutor sought to prove
solicitation for prostitution was clearly hearsay outside of
the presence of the defendant. The State's weak evidence
that the substance was cocaine was probably irreparable.
What the District Court could not finally accept was the
State's effort to shore up its weak proof of the drug charge
by attempting to produce evidence of other crimes which might
prejudice the minds of the jurors.
Moreover, the arguments of the State are beside the
point. The question at issue here on appeal is whether the
prosecutor intended to attempt to provoke a mistrial. Our
duty on appeal is to determine whether that finding can be
supported. This is the first instance where a finding of
that nature has come to this Court since the decision in
Oregon v. Kennedy (1982), 456 U.S. 667, 102 S.Ct. 2083, 72
L.Ed.2d 416.
 Ordinarily, the standard of review to be applied to a
finding of fact by a district court in a criminal case is
whether the finding of the district court amounts to an abuse
of its discretion. Thus, we will support a determination of
a district court as to whether a motion to file an
information is supported by probable cause unless there is an
abuse of discretion. State v. Bradford (Mont. 1984), 683
P.2d 924, 929, 41 St.Rep. 962, 967. A motion whether to
grant or deny a motion to dismiss at the close of the State's
case is within the sound discretion of the trial court and
will not be disturbed unless an abuse of that discretion is
shown. State v. Whitewater (Mont. 1981), 634 P.2d 636, 637,
38 St.Rep. 1664, 1666.
In State v. Counts (Mont. 1984), 679 P.2d 1245, 1248, 41
St-Rep. 681, 686, we held that the ruling of the District
Court on a motion for mistrial is not to be lightly
disturbed. There we approved the holding of Schmoyer v.
Bordeau (1966), 148 Mont. 340, 420 P.2d 316, that in order to
overturn the court's ruling on a motion for mistrial, this
Court must be shown the error of the trial court's ruling by
evidence which is clear, convincing and practically free from
doubt. In this case, with respect to the dismissal of the
cause on grounds of double jeopardy, we adopt the usual
standard that the State has the burden to show an abuse of
discretion by the District Court. We find none.
The judgment of the District Court is affirmed.

We Concur:
 Ty
dg
C h i e f Justice