State v. Cline

NO. 93-558
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1996

STATE OF MONTANA,
Plaintiff and Respondent,
v.
J/\~p.i / i'; ~pJl&
SHAWNMATTHEWCLINE,

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.

COUNSELOF RECORD:
For Appellant:
Herman A. Watson, III, Watson & Watson,
Bozeman, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
John Paulson, Assistant Attorney General,
Helena, Montana
Mike Salvagni, Gallatin County Attorney,
Marty Lambert, Deputy County Attorney,
Bozeman, Montana

Submitted on Briefs: December 7, 1995
Decided: January 18, 1996
Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.
Defendant Shawn Matthew Cline appeals from a jury verdict of
the Eighteenth Judicial District Court, Gallatin County, finding
him guilty of robbery, aggravated assault, and burglary. We
reverse and remand.
The issues on appeal are as follows:
1. Did the District Court err in denying Cline's motion for
a new trial based on newly discovered evidence?
2. Did the District Court err in admitting expert testimony
concerning the age of Cline's fingerprint?
3. Did the District Court err in allowing testimony
concerning the origin of tire tracks at the crime scene?
Our holding on Issue 1 is dispositive. As we are remanding to
the District Court for a new trial, we address the evidentiary
matters raised in Issues 2 and 3.
FACTS
At approximately 4:40 a.m. on the morning of October 12, 1992,
Jim Storey went to the Kountry Korner Cafe west of Bozeman in order
to prepare the cafe for opening. Storey is a local farmer-rancher
who had been given the key to the cafe by the owner, Betty Nason in
order to turn on the grills and make coffee prior to the cafe's
6:00 a.m. opening.
As Storey approached the back of the cafe, he noticed there
was a hole in the door where the deadbolt had been. Be heard an
acetylene torch burning as he entered the cafe and saw an acetylene

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torch tank on a cart with hoses leading into the office. Storey
tried to get into the office but could not open the door. He

stepped back from the door and said "Get the hell out of there."

A few seconds later a man came out of the office holding his hand

in front of his lower face. Storey described the man as somewhat

shorter than himself with long, dark brown hair. The man
approached Storey, struck him on the head with a hammer and fled

the scene.

When Storey regained consciousness he called 911. He was
taken to a Bozeman hospital and later flown to Billings for

treatment. Based on Storey's description of the assailant,

Lieutenant Robert Christie of the Gallatin County Sheriff's

Department assembled a photo line-up which he showed to Storey in

the hospital. The line-up included a photo of the defendant, Shawn

Matthew Cline. Storey covered the lower portion of each face and

then identified Cline based on his hairstyle and eyes. At trial,

Storey testified that Cline's hairstyle and build were similar to

his assailant's, but he could not make a positive identification.

The sheriff's office was unable to obtain identifiable latent

fingerprints from the crime scene. Nason discovered that the cash

drawer had been damaged in the burglary and would not fit back into

the cash register. She ordered a new cash drawer and removed the

register and old drawer to a storage shed behind the cafe. When

the new cash drawer arrived it did not have a money tray so Nason

retrieved the tray from the old drawer. At that point she
discovered an envelope underneath the money tray which had not been
found by the sheriff's deputies. The envelope was used to keep
deposits for pie tins when customers purchased pies. Using a

magnetic powder, Christie was able to raise a latent fingerprint

from inside the flap of the envelope. The print was that of
Cline's right thumb.

When interviewed by Christie, Cline stated that he had

previously washed dishes at the cafe but had not worked there in
over a year. He indicated he had not been in the cafe for two or

three months. He said he had never taken any money from customers

and had never entered the till. He could think of no reason why

his fingerprint would be on the envelope. Nason confirmed that

Cline had washed dishes a few times at the cafe but that he had no

reason to work the cash register or handle money, including that

involved with the pie tin deposit envelope.
Cline contacted Christie after the initial interview and told

him that he had given his sister-in-law, Roxanne Cline an envelope

not long before the burglary. Roxanne worked at the cafe and Cline

claimed this could explain the presence of his fingerprint on the

envelope. Roxanne testified that Cline had never given her an

envelope. Cline also claimed he had first learned of the burglary

while stopping at a service station across the street from the cafe

on the morning of the crime. The owner of the service station

testified that he did not see or talk with Cline that morning.
 On November 16, 1992, Cline was charged with robbery pursuant

to § 45-5-401, MCA (1991), aggravated assault pursuant to

§ 45-5-202, MCA (1991), and burglary pursuant to 5 45-6-204, MCA
(1991). Cline relied on an alibi defense, claiming he had spent

the early morning hours of October 11-12, 1992, with his wife, her

brother, and a young friend.

Cline's first trial concluded on April 2, 1993, when the jury

was unable to reach a verdict. On July 6, 1993, a second jury

trial was commenced, and on July 12, 1993, the jury found Cline

guilty on all three charges. On September 7, 1993, the District

Court sentenced Cline to ten years imprisonment on each count to
run concurrently, with three years suspended. The District Court

added five years on each count to run consecutively for the use of

a dangerous weapon.

On September 29, 1993, Cline filed a notice of appeal with

this Court. On February 18, 1994, Cline filed a motion to stay the

appeal and requested this Court to remand the case to the District

Court for a determination as to whether he would be entitled to a

new trial based on newly discovered evidence. In his motion, Cline

alleged that a previously unknown witness had voluntarily come

forward with information exculpating him (Cline) from the crimes.

On March 15, 1994, we granted Cline's motion and remanded the case

to the District Court for a hearing on the newly discovered

evidence.

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 On July 8 and 12, 1994, the District Court conducted hearings
on Cline's motion for discovery of the new evidence. On August 6,
1994, Cline filed a motion with the District Court for a new trial
based on the newly discovered evidence. On September 8, 1994, the
District Court conducted a hearing on the matter and on January 11,
1995, denied Cline's motion for a new trial. This appeal followed.
ISSUE 1
Did the District Court err in denying Cline's motion for a new
trial based on newly discovered evidence?
Granting or denying a motion for a new trial is within the
discretion of the district court. Section 46-16-702, MCA; State v.
Gambrel (1990), 246 Mont. 84, 91, 803 P.2d 1071, 1076. In State v.
Lewis (1978), 177 Mont. 474, 483, 582 P.2d 346, 351, we held that
"[tlhe matter of granting or refusing a new trial for newly
discovered evidence rests largely in the discretion of the District
Court." (Citing Butler v. Paradise Valley Irr. Dist. (1945), 117
Mont. 563, 160 P.2d 481). Based on the nature of the newly
discovered evidence, we must determine whether the District Court
abused its discretion in denying Cline's motion for a new tria1.l

IIn view of our recent decision in State v. Gollehon (Mont.
1995), 52 St. Rep. 1182, regarding the time requirements for filing
motions for new trial under § 46-16-702, MCA, and our retention of
two judicially created exceptions to that rule, it is appropriate
that we point out that the issue of the timeliness of Cline's
motion for new trial was neither raised in the District Court nor
in this Court on appeal and, accordingly, we decline to address
that issue here. Moreover, our order staying Cline's appeal and
remanding his motion to the District Court for consideration was
entered well before our decision in Gollehon and was consistent
with our decisional law then in effect.
6
 After Cline's conviction he became aware that another

individual had allegedly admitted to committing the offenses for

which he had been convicted. On February 18, 1994, Dwaine Cline,

Cline's cousin who was serving a sentence for misdemeanor theft,

filed a sworn affidavit indicating that James Leroy Smith, a

convicted felon, had told him that he (Smith) had committed the
Kountry Korner Cafe burglary, robbery and assault on October 12,

1992. Dwaine also stated in his affidavit that Sergeant Robert
Campbell of the Gallatin County Sheriff's Department had told him

that he had received information from a reliable source in Billings

that Smith was the one who had broken into the Kountry Korner Cafe.

Campbell testified at the hearing in July 1994 that in October

1993 he had received information from a private detective, Charles

Easterday, indicating that word was out that Smith was involved in

the Kountry Korner Cafe crimes. Easterday told Campbell that his

source for the information was Harold Lesh, an informant previously

used by the Sheriff's Department. Lesh was unavailable to testify

by the time the hearings were conducted in July and September 1994.

Campbell testified that he had also received a second telephone

call from an anonymous source at about the same time indicating

that Smith was involved in the Kountry Korner Cafe robbery.

Easterday testified at the hearing on the new trial motion that an

unidentified customer of a Bozeman pawn shop told him that Smith
had committed the crimes for which Cline had been convicted.

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 In summary, months after his conviction in July 1993, Cline
uncovered four sources--Dwaine Cline, Campbell, Lesh, and
Easterday--all providing information that Smith had committed the

crimes for which Cline had been convicted and sentenced. Faced
with this new evidence, Cline requested that this Court stay his

appeal and filed a motion for discovery seeking details on the

exculpatory information which Cline believed the authorities
possessed. The county attorney responded in writing to Cline's

request by stating "there is absolutely nothing exculpatory for

your client . . .'I The State's position was and still is that

the newly discovered evidence merely suggests an additional suspect

and does not exculpate Cline.

The District Court relied on our long-standing criteria set

forth in State v. Green0 (19591, 135 Mont. 580, 342 P.2d 1052, to
evaluate Cline's motion for a new trial based on the newly

discovered evidence. The Green0 criteria are: (1) the evidence
must have come to the knowledge of the defendant since trial;

(2) it was not through want of diligence that the evidence was not

discovered earlier; (3) the evidence is so material that it would
probably produce a different result upon another trial; (4) the

evidence is not merely cumulative--that is, it does not speak as to

facts in relation to which there was evidence at trial; (5) the

motion for new trial must be supported by the affidavit of the
witness whose evidence is alleged to have been newly discovered, or

its absence accounted for; and (6) the evidence must not be such as

8
will only tend to impeach the character or credit of a witness.
All six criteria must be met or the defendant's motion will fail.
State v. Arlington (1994), 265 Mont. 127, 149, 875 P.2d 307, 320,
(citing State v. Cyr (1987), 229 Mont. 337, 340-41, 746 P.2d 120,
122-23).
The District Court determined that Cline's newly discovered
evidence satisfied criteria 1, 2, and 5, and that criteria 6 was
not applicable. The court concluded, however, that the evidence
failed to meet the requirements of criteria 3 and 4.
In evaluating criteria 3, the District Court determined that
the proposed evidence was not so material that it would probably
produce a different result at a new trial. The court noted that
the anonymous telephone call to Campbell and the information from
the unidentified man who spoke with Easterday in the pawn shop was
hearsay. The court acknowledged that Smith's alleged confession of
the crimes might be admissible as a prior inconsistent statement
under Rule 801(d) (1) (A), M.R.Evid., if he denied such an admission
at a new trial. Nevertheless, the District Court determined that
such testimony would merely present the jury with the task of
determining and weighing the credibility of those who might
testify. The court concluded that Dwaine was not a credible
witness and that neither his testimony nor that of Smith and/or
Lesh was so material that it would result in Cline's acquittal at
a new trial.
 In evaluating criteria 4, the District Court determined that
evidence indicating Smith committed the crimes would merely be

cumulative evidence of Cline's denial of the charges. The court
determined that Cline did not demonstrate that the new evidence

"does not speak as to facts in relation to which there was evidence

at trial." (Citing Greeno, 342 P.2d at 1055.)

We do not agree with the District Court's conclusion that the

newly discovered evidence fails to satisfy criteria 3 and 4 of the

Green0 test. The new evidence, discovered well after trial due to

no lack of due diligence on Cline's part, is more than cumulative

of what was presented to the jury. Smith's purported confession

and the other evidence which points to his commission of the crimes

is new and distinct from any evidence presented at trial. The new

evidence tends to exculpate Cline and speaks to facts which were

not evident at trial. While we agree with the District Court that
essentially it may boil down to a question of witness credibility,

such a determination should remain within the province of the jury

and not the court.
The jury in Cline's first trial could not reach a verdict

based on the evidence presented. The jury in the second trial

convicted Cline based on circumstantial evidence, except for

Cline's fingerprint on the deposit envelope, and despite the fact

that Storey was unable to make a positive identification of the

perpetrator. Subsequent to the second trial, Cline obtained newly

discovered evidence material to his case and exculpatory in nature

10
which the jury did not have the opportunity to consider in reaching
its verdict. The newly discovered evidence is so material that it

would probably, albeit not necessarily, produce a different result

at another trial.

We determine that the newly discovered evidence satisfies all
six Green0 criteria, and therefore, we conclude that the District

Court abused its discretion in denying Cline's motion for a new

trial. Accordingly, we reverse the District Court on this issue
and on this basis remand the case to the District Court for a new

trial.

ISSUE 2

Did the District Court err in admitting expert testimony
concerning the age of Cline's fingerprint?

During the second trial, the District Court allowed Michael

Wieners, a FBI fingerprint technician, to testify as to the age of

Cline's fingerprint found on the pie tin deposit envelope. Wieners

testified that "I think this is a fresh latent print probably about

a month or two old. But, again, there is leeway either way."

Cline claims that because there is no reliable scientific procedure

to evaluate the age of a fingerprint, Wieners' testimony

significantly undermined his defense theory that the fingerprint

was laid prior to the break-in under innocuous circumstances

unrelated to the break-in.
Cline supports his position with an affidavit from Andre

Moenssens, a law professor and consultant on fingerprint

11
identification, whose opinion rebuts Weiners' testimony that it is

possible to determine the age of a fingerprint. Cline, however,

presented Moenssens' affidavit to the court after the trial in

support of his motion for a new trial. The District Court refused

to consider the information contained in the affidavit by

concluding that Cline could have discovered the information through

due diligence before or during trial. In any event, Cline argues

on appeal that the prejudicial affect of Wieners' testimony

outweighed the probative value of the information. Cline further

argues that Wieners' testimony did not meet the criteria for the

introduction of scientific evidence in criminal cases.

The State acknowledges that this Court has adopted the

standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc.

(19931, 113 S. Ct. 2786, 125 L. Ed. 2d 469, in determining whether

to allow expert testimony concerning novel scientific evidence.

See State v. Weeks, (1995), 270 Mont. 63, 891 P.2d 477; State v.

Moore (1994), 268 Mont. 20, 885 P.2d 457. However, the State

correctly notes that Daubert was decided just prior to the

commencement of Cline's second trial. This Court did not formally

adopt the Daubert standard until Moore was decided in November

1994, over a year after Cline was convicted. The State relies on
State v. Walters (1991), 247 Mont. 84, 806 P.2d 497, and Barmeyer

v. Montana Power Co. (1983), 202 Mont. 185, 657 P.2d 594, for its

argument that the District Court did not abuse its discretion in

allowing Wieners' testimony.

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 This Court has adopted the general rule that judicial
decisions are to be applied retroactively. McNeil v. Currie

(1992), 253 Mont. 9, 830 P.2d 1241.
It must also be noted that we do not consider fingerprint
evidence in general to be novel scientific evidence. However, in
the present case the issue is whether it is possible to determine
the age of a fingerprint utilizing magnetic powder. We apply the
Daubert standard to this case because we consider fingerprint aging
techniques in this context to be novel scientific evidence.
Certainly all scientific expert testimony is not subject to the
Daubert standard and the Daubert test should only be used to
determine the admissibility of novel scientific evidence.
When we adopted the Daubert test in Moore, we specifically
noted the continuing vitality of Barrnever as that case pertained to
the scientific evidence. In Barrnever we held that "it is better to
admit relevant scientific evidence in the same manner as other
expert testimony and allow its weight to be attacked by cross-
examination and refutation." Barmever, 657 P.2d at 598 (quoting
United States v. Bailer (4th Cir. 19751, 519 F.Zd 463, 466, cert.
denied, 423 U.S. 1019, 96 S. Ct. 456, 46 L. Ed. 2d 391). In
Barmeyer, we rejected the "general acceptance" test, holding that
it was not in conformity with the spirit of the new rules of
evidence. Barrnever, 657 P.2d at 598.
In Daubert, the United States Supreme Court also rejected the
"general acceptance" standard in favor of the more liberal test

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embodied in Rule 702, Fed.R.Evid. This test requires the trial
judge to determine whether the expert is proposing to testify to

(1) scientific knowledge that (2) will assist the trier of fact to

understand or determine a fact in issue. Moore, 885 P.2d at 470
(citing Daubert, 113 S. Ct. at 2796). We noted that Rule 702,
Fed.R.Evid., still requires the district court to screen such

evidence to ensure that any and all scientific testimony or

evidence admitted is not only relevant, but reliable. Moore, 885
P.2d at 470.

To guide the trial court's assessment of the reliability of

the scientific evidence offered, we adopted in Moore the following
four nonexclusive factors: (a) whether the theory or technique can

be and has been tested; (b) whether the theory or technique has

been subjected to peer review and publication; (c) the known or

potential rate of error in using a particular scientific technique

and the existence and maintenance of standards controlling the

technique's operation; and (d) whether the theory or technique has

been generally accepted or rejected in the particular scientific
field. Moore, 885 P.2d at 470-71 (citing Daubert, 113 S. Ct. at

2796-97).

In adopting the Daubert test, we concluded that "before a

trial court admits scientific expert testimony, there must be a

preliminary showing that the expert's opinion is premised on a
reliable methodology." Moore, 885 P.2d at 471. We noted, however,

that such an inquiry must remain flexible.

14
 "Not every error in the application of a particular
methodology should warrant exclusion. An alleged error
in the application of a reliable methodology should
provide the basis for exclusion of the opinion only if
that error negates the basis for the reliability of the
principle itself."

Moore, 885 P.2d at 471 (quoting United States v. Martinez (8th Cir.

1993), 3 F.3d 1191, 1198).

In this case, the State established the necessary foundation

regarding the issue of determining the age of fingerprints.

Wieners referenced and quoted a number of scientific treatises on

fingerprint technology. The treatises established that while the

age of a latent print cannot be established with complete accuracy,

experienced examiners can proffer an opinion regarding the age of

a latent print based on the examiner's experience and

investigation. The District Court, although not applying the

Daubert criteria, correctly found that this was an area where

experts could disagree, that the testimony would be subject to

cross-examination, and that the credibility of the witnesses and

the weight of their testimony should be for the jury to decide, not

the court. Rulings on the admissibility of evidence are left to

the sound discretion of the trial court. Moore, 885 P.2d at 471

(citing State v. Stewart (1992), 253 Mont. 475, 479, 833 P.2d 1085,

1087). We conclude that the District Court did not abuse its
discretion in allowing Weiners' testimony regarding the age of the

fingerprint.

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 ISSUE 3
Did the District Court err in aliowing testimony concerning

the origin of tire tracks at the crime scene?

The determination of whether evidence is relevant and
admissible is left to the sound discretion of the trial judge and

will not be overturned absent a showing of abuse of discretion.

State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263.

The State called Frank Kountz as a witness during trial.

Kountz is the general manager of a garbage collection company which

provided service to the Kountry Korner Cafe during October 1992.

Kountz testified that his company uses twin axle garbage trucks
which leave dual tire tracks on both sides of the vehicle. Kountz

also testified on direct examination that his company serviced the

cafe on Mondays and Fridays. The prosecutor asked no further

questions of Kountz.

On cross-examination, Cline asked Kountz specifically about

the morning of October 12, 1992. Kountz testified that he was not

personally present when the truck made its stop and that he was

relying on a company route sheet which had not been offered into

evidence. Cline then objected to Kountz's testimony as being

hearsay and requested the court to strike the testimony. The

objection was overruled.

On appeal, Cline contends that the District Court committed

reversible error by admitting Kountz's testimony. Cline claims

Kountz did not have personal knowledge as to whether garbage was

16
hauled away from the cafe on the morning of October 12, 1992, nor

did he have a legitimate business record confirming such a stop.

Cline argues that the State intended to use Kountz's testimony in

its closing argument to show that the dual tire tracks found at the

crime scene were those of the garbage truck, thus refuting Cline's

argument that someone other than himself with access to a vehicle

with dual tire tracks had committed the crime.

The State counters that it did not present any evidence

concerning the tire tracks found at the crime scene or make any
reference to the tire tracks in its closing argument. The State

points out that the only other mention of the dual tire tracks came

on Cline's cross-examination of Christie who admitted that

photographs of the tire tracks had not been compared to the garbage

truck and that the tracks could have been made by the person who

burglarized the cafe. The State argues that Cline may not

predicate a claim of error on the admission of testimony which he

himself elicited. Since this case is being remanded for a new

trial on newly discovered evidence grounds, it is somewhat

speculative as to whether the tire track issue will arise in the

new trial. Nevertheless, since both parties briefed the issue and

since it may arise in any new trial we will briefly address the

issue.

Since Cline himself elicited the alleged hearsay testimony, we

conclude that he cannot argue on appeal that its admission

constitutes reversible error. Furthermore, our review of the

17
record fails to indicate any relationship between the alleged

hearsay testimony and any element of the offenses for which Cline

was convicted. We have stated that "I [olnly if there was a

reasonable possibility that inadmissible evidence might have

contributed to the conviction is there reversible error."' State
v. Earl (19901, 242 Mont. 279, 283, 790 P.2d 464, 466 (quoting

State v. Brush (1987), 228 Mont. 247, 251, 741 P.2d 1333, 1335).

We therefore conclude that even if the admission of the testimony
was error, it was harmless error.

In conclusion, we note that Cline also appealed the District

Court's denial of his motion for a directed verdict made at the

closing of the State's case-in-chief. As we are remanding the case

back to the District Court for a new trial, we determine this issue

to be moot. We conclude the District Court abused its discretion

in denying Cline's motion for a new trial based on newly discovered

evidence. We remand this case to the District Court for further

proceedings consistent with this opinion.

aa
Justice

We concur:

18
Justices /

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