96-534
No. 96-534
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Respondent,
v.
WAYNE PARTIN,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
Honorable Russell Fagg, Judge Presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender, Helena, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General; Patricia Jordan.,
Assistant Attorney General, Helena, Montana
Dennis Paxinos County Attorney; Billings, Montana
Submitted on Briefs: July 2, 1997
Decided: December 30, 1997
Filed:
__________________________________________
Clerk
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Justice Karla M. Gray delivered the Opinion of the Court.
Wayne Partin (Partin) appeals from the judgment and commitment entered by the
Thirteenth Judicial District Court, Yellowstone County, on a jury verdict finding him
guilty of the felony offense of forgery. Specifically, he appeals from the District
Courtþs
denial of his motion for a mistrial following testimony which violated an order in
limine.
We reverse and remand for a new trial.
The issue on appeal is whether the District Court abused its discretion in
denying
Partinþs motion for a mistrial.
BACKGROUND
The State of Montana (State) charged Partin with committing the offense of
forgery
by allegedly altering the payee line of a check to include his name, signing the
back of
the check, and cashing it. Prior to trial, Partinþs counsel orally moved the
District Court
in limine to exclude expected testimony from the State regarding other crimes or acts
based on the Stateþs failure to provide Partin with a Just notice of intent to use
such
evidence. In particular, the motion sought to preclude any reference to the fact
that
certain handwriting samples were on file at the Billings Police Department due to a
prior
arrest of Partin. The State did not oppose the motion and, indeed, assured the
District
Court it did not intend to go into Partinþs criminal history or record. The
prosecutor also
stated that she had spoken to Detective Dave Comfort, the Stateþs handwriting expert,
about avoiding any mention of Partinþs prior arrest during his testimony comparing
the
writing on the check at issue to prior handwriting samples from Partin, and that she
would stop him should he begin to verge into such þprior crimesþ testimony. The
District Court granted the motion in limine.
At trial, Ron Hill (Hill) testified that he had written, and mailed, the check
at issue
to AAA Drywall in September of 1995. He further testified that the payee line of the
check had been altered to include þ/W. Partin.þ He stated that, in response to
notification by AAA Drywall that it had not received the check, he called the bank
to stop
payment on the check and was informed that the check had already been cashed.
The bank teller who cashed the check testified that she did not remember the
transaction, but that her teller stamp on the check indicated she had cashed it on
September 9, 1995. She also had written a social security number on the check,
reflecting that she had seen some form of identification containing the customerþs
social
security number and signature. According to the teller, the identification may have
been,
but was not necessarily, a driverþs license.
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After being qualified as an expert in handwriting analysis, Detective Comfort
testified that he had compared both the added writing on the payee line and the
signature
on the back of the check with several handwriting samples provided by Partin, two of
which had been admitted into evidence. The State then asked Detective Comfort to
identify the source of other handwriting samples he had used for his analysis and he
responded that they were fingerprint cards from Partinþs previous arrest.
Defense counsel objected and moved for a mistrial on the grounds that Detective
Comfortþs statement regarding the prior arrest violated the District Courtþs grant
of the
motion in limine and constituted other crimes evidence. Out of the juryþs presence,
the
State contended that evidence of a prior arrest was not, technically, other crimes
evidence. The prosecutor urged that a cautionary instruction would correct any error
because the jury þwonþt necessarily be biased against the defendant just by the fact
[Detective Comfort] mentioned [Partin] was arrested in the past.þ The District Court
expressed disappointment with Detective Comfortþs testimony and ascribed it to
nervousness. The court subsequently gave a cautionary instruction admonishing the
jury
to consider only the facts and not prior crimes allegedly committed, and that
Detective
Comfort should not have testified that there had been a prior arrest of Partin.
The trial continued and Detective Comfort ultimately opined that it was probable
that Partin altered the front of the check. He also testified that it was highly
probable that
Partin endorsed the back of the check.
Partin then testified on his own behalf, denying that he altered the front, or
signed
the back, of the check. He testified that his roommate had stolen various items,
including his wallet, from his house in August of 1995, and that his driverþs
license, and
perhaps his social security card, were in the wallet. This theft was reported to
the police.
The jury found Partin guilty of the offense of forgery, a felony, and the
District
Court subsequently sentenced him and entered judgment. Partin appeals from the
denial
of his motion for a mistrial.
STANDARDS REGARDING MISTRIAL MOTIONS
We recently clarified the standard to be applied by a district court in
determining
whether to grant a motion for a mistrial. Observing that we had not consistently
stated
that standard in earlier cases, we held that a district court should grant a motion
for a
mistrial þwhen there is either a demonstration of a manifest necessity, or where the
defendant has been denied a fair and impartial trial.þ State v. Ford (1996), 278
Mont.
353, 359-60, 926 P.2d 245, 249; see also State v. Walker (1996), 280 Mont. 346, 352,
930 P.2d 60, 63-64; and State v. Romero (1996), 279 Mont. 58, 75, 926 P.2d 717, 728.
We have not previously determined when a district court should apply the
manifest
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necessity standard as opposed to the denial of a fair and impartial trial standard.
That
subissue was addressed, however, in a special concurring opinion in Romero, 926 P.2d
at 730 (Leaphart, J., concurring), in which three other justices joined.
Justice Leaphart noted, at the outset, that United States v. Perez (1824), 22 U.
S.
(9 Wheat.) 579, 580, 6 L.Ed. 165, 165-66, was the source of the manifest necessity
component of the standard and that, in Perez, the mistrial was declared by the
court, not
requested by the defendant. Romero, 926 P.2d at 730. He observed that, in United
States v. Dinitz (1976), 424 U.S. 600, 606-607, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267,
273, the United States Supreme Court limited the application of the manifest
necessity
standard to situations where a court declares a mistrial without the consent of the
defendant. The rationale for limiting application of the heightened manifest
necessity
standard is that double jeopardy implications arise in the context of a mistrial
declared
without the defendantþs request or consent. Romero, 926 P.2d at 730-31.
In the context of a defendantþs motion for a mistrial, however, Justice Leaphart
relied on Oregon v. Kennedy (1982), 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416,
in reasoning that double jeopardy considerations do not arise when a defendant has
chosen
to terminate the proceedings against him. Romero, 926 P.2d at 730-31. Thus, Justice
Leaphart concluded that, where the defendant moves for a mistrial, the þmotion should
be granted where the ends of public justice so require or where the defendant will be
denied a fair and impartial trial.þ Romero, 926 P.2d at 731. Other courts are in
accord
with Justice Leaphartþs reasoning, applying the manifest necessity standard when the
trial
court declares a mistrial without the defendantþs consent and the denial of a fair
trial
standard when the defendant moves for a mistrial. See, e.g., State v. Ardolino (Me.
1997), 697 A.2d 73, 79; State v. Friel (Me. 1985), 500 A.2d 631, 634; Smith v. State
(Ga. 1994), 439 S.E.2d 483, 485; Byrd v. State (Ga. 1992), 420 S.E.2d 748, 749;
State
v. Sonen (S.D. 1992), 492 N.W.2d 303, 306; State v. Delfs (S.D. 1986), 396 N.W.2d
749, 751.
We adopt the rationale set forth in Justice Leaphartþs special concurring
opinion
in Romero and conclude that the more stringent manifest necessity standard applies
when
a trial court considers declaring a mistrial without the defendantþs request or
consent. We
further conclude that the denial of a fair and impartial trial standard applies when
a trial
court determines whether to grant a mistrial either moved forþor consented toþby the
defendant. Thus, the fair and impartial trial standard applies to the District
Courtþs
ruling on Partinþs motion for a mistrial based on inadmissible testimony which
violated
the order in limine.
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With regard to this Courtþs standard of review of a district courtþs ruling on a
motion for a mistrial, the parties advance different positions based on two separate
lines
of authority. The State relies on recent language in Ford, 926 P.2d at 248-49
(citing
State v. Greytak (1993), 262 Mont. 401, 404, 865 P.2d 1096, 1098)þreiterated in
Walker, 930 P.2d at 63, and Romero, 926 P.2d at 728þthat, in reviewing a trial
courtþs
ruling on a motion for a mistrial, we determine whether there is clear and convincing
evidence that the courtþs ruling is erroneous. In contrast, Partin urges us to
apply the
standard of review set forth in State v. Seaman (1989), 236 Mont. 466, 475, 771 P.2d
950, 956 (citing State v. Scheffelman (1987), 225 Mont. 408, 411, 733 P.2d 348, 350),
which is whether the district court abused its discretion in denying the motion.
Thus,
before addressing the merits of the present appeal, we must resolve the threshold
issue
of our standard of review.
The problem with the Ford standardþwhether there is clear and convincing
evidence that the trial courtþs ruling is erroneousþis that clear and convincing
evidence
is an evidentiary standard. Indeed, we recently defined clear and convincing
evidence as:
"[c]lear and convincing proof is simply a requirement that a preponderance
of the evidence be definite, clear, and convincing, or that a particular issue
must be clearly established by a preponderance of the evidence or by a clear
preponderance of proof. This requirement does not call for unanswerable
or conclusive evidence. The quality of proof, to be clear and convincing,
is somewhere between the rule in ordinary civil cases and the requirement
of criminal procedure--that is, it must be more than a mere preponderance
but not beyond a reasonable doubt."
Matter of J.L. (1996), 277 Mont. 284, 289, 922 P.2d 459, 462 (quoting In Interest of
S.M.Q. (Kan. 1990), 796 P.2d 543, 545); see also Wareing v. Schreckendgust (1996),
280 Mont. 196, 206, 930 P.2d 37, 43 (citation omitted). Such an evidentiary standard
relating to a partyþs burden of proof in the district court is not a proper standard
for this
Courtþs review of a district courtþs ruling on a motion for a mistrial. As a
result, we will
no longer use the þclear and convincing evidence that the trial courtþs ruling is
erroneousþ standard of review applied in Ford, Walker, Romero, and earlier cases. In
accordance with the Seaman and Scheffelman line of cases, we will review a district
courtþs ruling on a motion for a mistrial to determine whether the court abused its
discretion.
DISCUSSION
Did the District Court abuse its discretion in denying Partinþs motion for a
mistrial?
It is undisputed in this case that Detective Comfortþs reference to fingerprint
cards
from Partinþs prior arrest as the source of handwriting samples violated the District
Courtþs order in limine and, therefore, was inadmissible. Partin moved for a
mistrial,
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arguing that the testimony had such a prejudicial impact that a cautionary jury
instruction
could not cure the error. The State contended that Detective Comfortþs reference to
the
prior arrest did not necessarily indicate a prior conviction and that a cautionary
jury
instruction was sufficient to cure any error. The District Court denied Partinþs
motion
and the question before us is whether, under the facts and circumstances of this
case, the
court abused its discretion in determining that Detective Comfortþs reference to
Partinþs
prior arrest did not deny Partin a fair and impartial trial.
The general rule is that, where there is a reasonable possibility that
inadmissible
evidence might have contributed to the conviction, a mistrial is appropriate. See
Walker,
930 P.2d at 64 (citations omitted). In determining whether a prohibited statement
contributed to a conviction, the strength of the evidence against the
defendantþtogether
with the prejudicial effect of the testimony and whether a cautionary jury
instruction
could cure any prejudiceþmust be considered. See Walker, 930 P.2d at 63-64; Ford,
926 P.2d at 249.
We begin by addressing the strength of the evidence against Partin in the
context
of whether there is a reasonable possibility that Detective Comfortþs reference to a
prior
arrest might have contributed to Partinþs conviction. No eyewitnesses tied Partin
to the
offense. Although Hill testified that the check had been altered and the bank teller
testified that she cashed the check, neither one could identify Partin or link him
to the
check. Therefore, Detective Comfortþs testimony regarding the handwriting analysis
he
performed was the only link between Partin and the offense.
On direct examination, Detective Comfort testified to the consistencies between
the
handwriting samples and the writing on the check and concluded that, in his opinion,
it
was probable that Partin altered the payee line of the check and highly probable
that
Partin signed the back of it. He further testified that he uses a six-step grading
scale
which ranges from a positive match downward through a high probability, a
probability,
a possibility, and some indications to no indications of a match. Therefore,
Detective
Comfort was able to assign only the second highest grade to the results of his
analysis of
the endorsement on the back of the check. He also testified that his analysis
indicated
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that Partinþs signature was þconsistent with the writing on the back of the checkþ
before
going on to testify that it was þhighly probableþ that Partin had endorsed the
check.
During cross-examination, various inconsistencies between the handwriting samples and
the writing on the check were pointed out. The inconsistencies included the fact
that the
signature on the handwriting samples turned into a straight line, while the
signature on
the check turned into a þsquigglyþ line. In addition, the handwriting samples all
contained an þaþ that was absent from the signature on the back of the check.
Indeed,
Detective Comfort testified that it was possible someone else could have endorsed the
check.
After the close of the Stateþs case, Partin testified on his own behalf that he
did
not steal the check, alter the payee line, or endorse the back and cash it. He also
testified
that his roommate had stolen his walletþwhich contained his driverþs license and
possibly
his social security cardþand that he reported the theft to the police.
The lack of eyewitness testimony connecting Partin to the check in any way,
together with Detective Comfortþs handwriting analysis producing a less than positive
match, result in evidence against Partin which is far short of being overwhelming.
Furthermore, the inconsistencies in Detective Comfortþs analysis and the other
weaknesses in his results were effectively highlighted during cross-examination.
Finally,
Partin testified that he did not forge the check and advanced an alternative
explanation
which was not inherently incredible. Overall then, the evidence against Partin was
conflicting and relatively weak.
The prejudicial effect of Detective Comfortþs reference to Partinþs prior
arrest must
also be considered. See Walker, 930 P.2d at 64. In this regard, we have recognized
that
the introduction of other crimes evidence inevitably involves prejudice to the
defendant.
State v. Anderson (1996), 275 Mont. 344, 349, 912 P.2d 801, 804 (citation omitted).
Indeed, such evidence is introduced by the prosecution for the very purpose of
prejudicing the defendant. The State argues, however, that a prior arrest is not
technically other crimes evidence and, therefore, reference to a prior arrest will
not
necessarily result in prejudice to the defendant.
We have stated, without analysis, that testimony about the existence of a
pending
charge in another state is not other crimes evidence. Ford, 926 P.2d at 249. We
also
have held that an officerþs statement that he recognized the defendant from past
forgery
investigations was other crimes evidence requiring a Just notice. Walker, 930 P.2d
at 64.
Finally, we have determined that Just does not apply to testimony regarding other
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wrong
acts when the testimony was inadvertent because the prosecution did not intend to
offer
such evidence. State v. Brush (1987), 228 Mont. 247, 250, 741 P.2d 1333, 1335. We
need not resolve this apparent conflict in our cases here, however, for two reasons.
First, if the State desired to take the position that the prior arrest was not
other
crimes evidence, it should have done so in response to Partinþs pretrial motion in
limine
to preclude reference to a prior arrest. It not only did not do so, it acquiesced
in the
motion. Then, having elicited the very testimony it agreed was inadmissible, the
prosecutor responded to Partinþs motion for a mistrial by arguing the purported
distinction
between other crimes evidence and testimony referencing only a prior arrest. The
State
repeats that argument on appeal, but we will not countenance such position-shifting
by
addressing that argument here.
Second, regardless of whether Detective Comfortþs reference to Partinþs prior
arrest is other crimes evidence under Just and Rule 404(b), M.R.Evid., testimony that
a defendant has been arrested on a prior occasion is inherently prejudicial. If it
were not,
there would be no reason for a motion in limine to preclude such evidence. Further,
the
prosecutorþs acquiescence inþand the District Courtþs grant ofþthe motion in limine
in
this case reflect that all involved conceded the prejudicial effect of evidence that
Partin
had been arrested on a prior occasion. This is especially true when, as in this
case, the
only evidence directly linking Partin to the check at issue is the testimony of the
very
officer who also disclosed the previous arrest, and the only defense witness is the
defendant. Under such circumstances, the reference to the prior arrest may have
buttressed the officerþs other testimony and, at the same time, impugned the
defendantþs
credibility and character. On this record, we conclude that Detective Comfortþs
reference
to Partinþs prior arrest was prejudicial.
Regarding the extent of the prejudice, the State argues that Detective Comfortþs
reference to Partinþs prior arrest is no more prejudicial than the officerþs
reference to
other charges pending against the defendant in Ford. Because we determined that
reference had only a slight prejudicial effect and affirmed the denial of that
defendantþs
motion for a mistrial, the State contends we should do the same in the present case.
In Ford, the victim testified that Ford had sexually assaulted him and that,
when
confronted the next day, Ford admitted what he had done. Ford, 926 P.2d at 246-47.
The victimþs cousin and uncle provided similar descriptions of the confrontation
between
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the victim and Ford. Ford, 926 P.2d at 247. The investigating officer testified
that,
before he searched Fordþs residence, he asked for consent to search and told Ford
that
there were charges pending in another state. Ford, 926 P.2d at 247. The defendant
objected and the trial court overruled the objection. The defendant subsequently
moved
for a mistrial; the trial court denied the motion, but gave a cautionary
instruction. Ford,
926 P.2d at 247. On that record, we determined that the reference to other pending
charges had little, if any, prejudicial effect. Ford, 926 P.2d at 249.
In Ford, the evidence against the defendant was very strong. Here, as discussed
above, the evidence against Partin was weak and conflicting. There were no
eyewitnesses
to any involvement by Partin with the check at issue. Nor was there testimony
corroborating Detective Comfortþs opinion that the writing on the check was Partinþs
and,
as discussed above, the weaknesses in Detective Comfortþs handwriting analysis and
opinion were highlighted effectively during cross-examination. Since the stronger
the
evidence against the defendant, the less likely it is that a reference to other
charges or a
prior arrest will have a prejudicial effect, we conclude that the reference to
Partinþs prior
arrest had a greater prejudicial effect than the reference to other charges in Ford.
Finally, we turn to the question of whether the District Courtþs cautionary
instruction could cure the prejudicial effect of Detective Comfortþs reference to
Partinþs
prior arrest. Generally, þan error in the admission of evidence may be cured if the
jury
is admonished to disregard it.þ Walker, 930 P.2d at 64 (citations omitted). A
general
rule is not carved in stone, however, and if this one were, every improper
introduction
of evidenceþno matter how egregious and prejudicial and without regard to any
pretrial
exclusionþcould and would be cured by a cautionary instruction. Where the question
before us boils down to whether there is a reasonable possibility that inadmissible
evidence might have contributed to the conviction, we must evaluate the
applicability of
the general rule regarding curative instructions carefully.
In Walker, another felony forgery case, an officer referenced past forgery
investigations involving the defendant at a point during trial when another officer
had
testified that three bank employees identified the defendant in a photo line-up.
Walker,
930 P.2d at 64. In addition, the three bank employees provided in-court
identifications
of the defendant. Walker, 930 P.2d at 64. The defendant objected to the reference
to
the past forgery investigations and, during the ensuing discussion in chambers,
moved for
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a mistrial. The prosecutor admitted that no Just notice had been given. Walker, 930
P.2d at 63. The district court denied the motion for a mistrial and admonished the
jury
not to consider the reference to past investigations. Walker, 930 P.2d at 63. We
determined on appeal that, in light of all the evidence presented and the prompt
cautionary instruction, the officerþs reference to past forgery investigations did
not
contribute to the conviction; in doing so, we implicitly concluded that any
prejudice from
the improper testimony was cured by the instruction. Walker, 930 P.2d at 64.
Clearly, the admonition to the jury in Walker was not the only factor we
considered in determining that the prejudicial effect of the reference to past
investigations
had been overcome. The strong evidence against the defendantþincluding that of three
eyewitnessesþwas an important underpinning for our conclusion that the prejudice was
cured. See Walker, 930 P.2d at 64. Here, unlike in Walker, the evidence was weak
and
conflicting and no eyewitnesses tied Partin to the check at issue. Furthermore, in
Walker
the reference to the other charges did not violate a pretrial order excluding such
testimony. In this case, the reference to Partinþs prior arrest violated the
District Courtþs
order in limine to which the State had agreed. Under such a circumstance, and given
the
status of the evidence, resolving any doubt about the efficacy of the cautionary
instruction
in favor of the prosecution would be inappropriate. As a result, we conclude that
the
cautionary instruction did not overcome the prejudicial effect of Detective Comfortþs
reference to Partinþs prior arrest.
Based on the record before us here, we conclude that there is a reasonable
possibility that Detective Comfortþs reference to Partinþs prior arrest might have
contributed to Partinþs conviction and, as a result, that Partin was denied a fair
and
impartial trial. We hold, therefore, that the District Court abused its discretion
in
denying Partinþs motion for a mistrial.
Reversed and remanded for a new trial.
/S/ KARLA M. GRAY
We concur:
/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ WILLIAM E. HUNT, SR.
/S/ TERRY N. TRIEWEILER
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