State v. Mallak

No. 02-205

IN THE SUPREME COURT OF THE STATE OF MONTANA

2005 MT 49

STATE OF MONTANA,

Plaintiff and Respondent,

v.

SABAH O. MALLAK,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 2000-930,
Honorable Susan P. Watters, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Sabah O. Mallak, Pro Se, Deer Lodge, Montana

For Respondent:

Honorable Mike McGrath, Attorney General; Jennifer Anders,
Assistant Attorney General, Helena, Montana

Dennis Paxinos, County Attorney; Rod Souza, Deputy County
Attorney, Billings, Montana

Submitted on Briefs: November 20,
2003

Decided: March 1, 2005

Filed:

__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1 Sabah O. Mallak appeals his convictions following his pleas of guilty to felony

charges of burglary and witness tampering and to two misdemeanor charges of criminal

contempt. We affirm.

¶2 We address the following issues on appeal:

¶3 1. Did the District Court err in denying the Appellant’s motion to dismiss the charges

against him on double-jeopardy grounds?

¶4 2. Did the District Court err in denying the Appellant’s motion to withdraw his guilty

plea?

¶5 3. Did the District Court err in refusing to dismiss the charges against the Appellant

on the grounds that exculpatory evidence was not preserved?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 The Appellant was charged by Information on November 8, 2000, with partner or

family member assault (PFMA), a felony. The State alleged that on or about the night of

November 2, 2000, the Appellant punched and kicked his girlfriend, Tracie Dewey (Tracie),

causing her bodily injury or the reasonable apprehension of it. The State amended the

Information several times, and at trial, the Appellant also faced the felony charges of

burglary and witness tampering, a misdemeanor charge of resisting arrest, and two more

misdemeanor charges of criminal contempt, all arising out of or directly related to the alleged

assault.

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¶7 On the first day of trial, April 23, 2001, the District Court granted the Appellant’s

outstanding motion to exclude evidence regarding his prior bad acts, specifically, instances

of physical violence perpetrated by the Appellant against Tracie in the past. Before the

following day’s opening statements, the District Court denied the Appellant’s motion to

dismiss the PFMA and burglary charges for the State’s failure to preserve what he

characterized as exculpatory physical evidence–audiotape recordings of Tracie testifying

falsely under oath in prior proceedings against the Appellant.

¶8 At trial, the Appellant sought to impeach Tracie’s credibility on cross-examination

by confronting her with these perjurious statements, which she admitted having made. The

District Court perceived the potential in this line of questioning for violation of its order in

limine which excluded evidence of the Appellant’s having previously assaulted Tracie, and

admonished the State in a side bar to exercise caution in rehabilitating its complaining

witness on redirect:

THE COURT: . . . I think [the State is] allowed to ask her why she lied, but
I’m not going to allow any testimony about why you were afraid or anything
like that. Leave it at that.

MR. SOUZA: I’m not going to go any further.

(Whereupon, the proceedings at the bench concluded.)

Q. (By Mr. Souza) You were interviewed by the public defender’s office,
Tracie?

A. Yes.

Q. And in that interview you told them that you lied?

A. Yes.

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 Q. Did you tell them why you lied?

A. Yes.

Q. Why don’t you now tell the jury why you have previously lied in court.

A. Because I was scared of him. [Emphasis added.]

¶9 The Appellant objected at this point and moved for a mistrial on the grounds that the

phrase italicized above implied that he had frightened Tracie by perpetrating bad acts. The

District Court denied the motion, and the trial proceeded.

¶10 Deputy Sheriff Ron Wilson testified for the State later that same day. He brought the

audiotape recording of a telephone call that the Appellant placed to Tracie on November 7,

2000, which was entered into evidence and played for the jury. Tracie was heard on the tape

to say to the Appellant that he was “not going to get away with it this time” (emphasis

added). After the jury left the courtroom, the Appellant again objected and moved for a

mistrial on the grounds that the State had violated the order in limine. This time, the District

Court granted the motion, and a new trial date was set.

¶11 Prior to the second trial, the Appellant moved to dismiss the case on double jeopardy

grounds, claiming that the State had provoked him into moving for a mistrial. The District

Court denied this motion. The parties then entered a plea bargain agreement, wherein

Appellant agreed to plead guilty to witness tampering and to two counts of criminal

contempt, and plead no contest to burglary. In exchange, the State dropped the original

charge of PFMA.

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¶12 Less than two months later, the Appellant moved for leave to withdraw from the plea

agreement and go to trial on all the State’s charges against him. The sole basis for his motion

was his claim that certain prescription medications which he was taking when he entered his

several pleas rendered him incapable of pleading intelligently and knowingly. After an

evidentiary hearing on the matter, the District Court denied this motion and sentenced the

Appellant on November 13, 2001. This appeal followed.1

STANDARD OF REVIEW

¶13 The grant or denial of a motion to dismiss in a criminal case is a question of law

which we review de novo on appeal. State v. Weldele, 2003 MT 117, ¶ 13, 315 Mont. 452,

¶ 13, 69 P.3d 1162, ¶ 13. Our standard of review is plenary, and we determine whether a

district court’s conclusion is correct. Weldele, ¶ 13.

¶14 Furthermore, a court’s resolution of an issue involving a question of constitutional law

is a conclusion of law which we also review to determine whether the conclusion is correct.

City of Missoula v. Robertson, 2000 MT 52, ¶ 14, 298 Mont. 419, ¶ 14, 998 P.2d 144, ¶ 14.

¶15 We review a district court’s denial of a defendant’s motion to withdraw a guilty plea

to determine whether the court abused its discretion. State v. Schaff, 1998 MT 104, ¶ 15, 288

Mont. 421, ¶ 15, 958 P.2d 682, ¶ 15; State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175,

177. No categorical standard exists as to how a district court must address a request to

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Following the filing of Appellant’s brief with this Court, prepared by counsel, and
the State’s brief in response, Mallak moved to discharge his attorney. The case was
remanded to the District Court for hearing, after which the court granted Mallak’s motion
and request to proceed pro se. Thereafter, Mallak filed his own brief on appeal, to which
the State responded.

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withdraw a guilty plea; rather, each case must be considered in light of its unique record.

Mallak v. State, 2002 MT 35, ¶ 16, 308 Mont. 314, ¶ 16, 42 P.3d 794, ¶ 16.

DISCUSSION

¶16 1. Did the District Court err in denying the Appellant’s motion to dismiss the
charges against him on double-jeopardy grounds?

¶17 The Appellant claims that the State goaded him into moving for a mistrial by

purposely violating the District Court’s order in limine, in both its redirect examination of

Tracie and by introducing into evidence the audiotaped conversation between Tracie and the

Appellant; that the Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution therefore barred the State from re-trying the Appellant on the same charges as

those which he faced at his first trial; and that the District Court consequently erred in

denying his motion to dismiss the indictment.

¶18 The Double Jeopardy Clause, made applicable to the States through the Due Process

Clause of the Fourteenth Amendment, Benton v. Maryland (1969), 395 U.S. 784, 89 S.Ct.

2056, 23 L.Ed.2d 707, protects a criminal defendant from repeated prosecutions for the same

offense. Oregon v. Kennedy (1982), 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416. The

Double Jeopardy Clause protects a defendant in his or her “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, however. 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. Kennedy, 456 U.S. at 672, 102 S.Ct. at

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2087, 72 L.Ed.2d at 422 (citations omitted). When a mistrial is granted on the defendant’s

motion in a criminal case, the “manifest necessity” standard does not apply, and the Double

Jeopardy Clause ordinarily does not bar the State from trying him or her again on the same

indictment. United States v. Tateo (1964), 377 U.S. 463, 467, 84 S.Ct. 1587, 1590, 12

L.Ed.2d 448, 451. There is again, though, a narrow exception to this rule:

Only where the governmental conduct in question is intended to “goad” the
defendant into moving for a mistrial may a defendant raise the bar of double
jeopardy to a second trial after having succeeded in aborting the first on his
own motion.

Kennedy, 456 U.S. at 676, 102 S.Ct. at 2089, 72 L.Ed.2d at 425.

¶19 In a concurrence, Justice Powell proposed considering “the objective facts and

circumstances of the particular case” in order to determine prosecutorial intent. Kennedy,

456 U.S. at 679-80, 102 S.Ct. at 2092, 72 L.Ed.2d at 427 (Powell, J., concurring). We

proceeded accordingly in State v. Laster (1986), 223 Mont. 152, 724 P.2d 721.

¶20 As commentary has pointed out, the defendant whose mistrial motion is granted will

succeed only with great difficulty in raising the Double Jeopardy Clause as a bar to further

prosecution on the indictment:

In cases of mistrial, there must be a finding of “Machiavellian” design and a
vision of future moves worthy of a chess master: first, the prosecutor’s
perception that the case has gone amiss in some unanticipated way, coupled
with an assessment that if only the trial could start over things would improve;
then, the decision to goad defense counsel into naively doing the prosecutor’s
concealed bidding by moving for the mistrial that the prosecutor secretly
desires; followed by some feigned but half-hearted opposition to the defense
counsel’s motion; all the while hoping that the trial court thereby has been
successfully manipulated into granting it.

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Kenneth Rosenthal, Prosecutor Misconduct, Convictions, and Double Jeopardy: Case

Studies in an Emerging Jurisprudence, 71 Temple L. Rev. 887, 911 (1998).

¶21 Thus, in Laster, the defendant was charged by information with criminal sale of

dangerous drugs. The information was supported by the deputy county attorney’s affidavit,

which stated that the defendant gave cocaine to P.S., then aged sixteen, and engaged in

sexual intercourse with her. Laster, 223 Mont. at 154, 724 P.2d at 723.

¶22 From this point, the State’s case began to fall apart. Blood and urine samples were

taken from the girl when she arrived at an area hospital shortly after her encounter with the

defendant. The blood sample was sent to the State’s Crime Laboratory, but since it was not

properly preserved for transit, no conclusive results could be obtained from it. As for the

urine sample, the hospital testing procedure merely indicated the presence therein of a

substance that may have been a cocaine derivative, and the sample was destroyed after the

analysis was complete.

¶23 These events prompted the defense to move for a dismissal of the charge on the

grounds that the complainant’s testimony lacked independent corroboration. The State,

perceiving the unexpected weakness of its case, moved to amend the information to add the

alternative count of criminal sale of imitation and dangerous drugs. Both these motions were

denied. Laster, 223 Mont. at 154-55, 724 P.2d at 723. At a hearing on these two motions,

however, an expert for the defense testified that the results of the hospital’s urine test were

consistent with the previous ingestion of many over-the-counter cold remedies, as well as

cocaine. Laster, 223 Mont. at 155, 724 P.2d at 723. To make matters worse for the State,

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cross-examination of the complainant at trial established for the jury that she had several

times changed her account of the events in question. Laster, 223 Mont. at 157, 724 P.2d at

725.

¶24 The State reacted to these reverses by “attempt[ing], 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.” Laster, 223 Mont. at 158, 724 P.2d at 725 (quoting

the district court’s findings). For example, on the morning of trial, the district court entered

an order in limine which excluded, as hearsay, evidence of conversations, at which the

accused was not present, between the defendant’s brother and both the complainant and her

sister, regarding whether the complainant had agreed to accompany the defendant to another

state for the purpose of entering into prostitution there. Nonetheless, the prosecutor tried

several times to elicit testimony thereon. Laster, 223 Mont. at 155-56, 724 P.2d at 724. The

prosecutor also tried to re-characterize the complainant’s sexual encounter with the

defendant as rape, an offense with which the defendant had not been charged, and an

accusation which the complainant had already recanted. Laster, 223 Mont. at 156-57, 724

P.2d at 724.

¶25 Given these and other findings, we ruled that the district court did not abuse its

discretion in determining that “the prosecutor intended to provoke the final motion for a

mistrial to afford the State a more favorable opportunity to convict this defendant,” and

granting the defendant’s motion to dismiss on double-jeopardy grounds. Laster, 223 Mont.

at 158-59, 724 P.2d at 725-26.

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¶26 We see little factual similarity between the prosecutor’s actions in Laster and the

present case. First, as the District Court noted in its Order and Memorandum denying the

Appellant’s motion to dismiss, the prosecution was in the midst of presenting a strong case

when the motion for mistrial was granted. Physical evidence, and the testimony of two

police officers as to their impressions of the scene, had been introduced from which the jury

could draw conclusions favorable to the State. The District Court noted further that its order

in limine was only violated by the testimony and tape in combination, and that neither alone

would have justified the granting of a mistrial. This point is more significant in light of the

fact that the District Court found the part of Tracie’s testimony to which the Appellant

objected to have been the product of the prosecutor’s inadvertence, not intention. This

impression is strengthened by the fact that the State’s question did not inevitably lead to a

violation of the order in limine, unlike the inherently violative questioning in which the

Laster prosecution engaged.

¶27 We therefore conclude that the District Court did not abuse its discretion in denying

the Appellant’s motion to dismiss the charges.

¶28 2. Did the District Court err in denying the Appellant’s motion to withdraw his
guilty plea?

¶29 As indicated above, the Appellant based his motion to withdraw his guilty plea on the

sole argument that certain prescription medications which he was then taking deprived him

of the capacity to make a knowing and intelligent plea. After a full evidentiary hearing on

this issue, the District Court denied the Appellant’s motion and sentenced him.

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¶30 On appeal, the Appellant has abandoned this theory in favor of the argument that his

attorneys failed to advise him properly as to the possible consequences of his guilty plea and

coerced him to plead guilty.

¶31 It is well settled that a party may not change his or her theory on appeal, State v.

Henderson (1994), 265 Mont. 454, 458, 877 P.2d 1013, 1016, it being fundamentally unfair

to fault a district court for failing to rule correctly on an issue which it was never given the

opportunity to consider. Wright v. Mahoney, 2003 MT 141, ¶ 14, 316 Mont. 173, ¶ 14, 71

P.3d 1195, ¶ 14. Accordingly, we refuse to entertain this new argument on appeal.

¶32 3. Did the District Court err in refusing to dismiss the charges against the Appellant
on the grounds that exculpatory evidence was not preserved?

¶33 The Appellant moved before trial for a dismissal of the charges of PFMA and burglary

on the grounds that audiotape recordings of the complainant’s false testimony in a previous

proceeding were lost or unable to be located, and now challenges the District Court’s denial

of his motion. He asserts that “court transcripts that happened to be exculpatory evidence

on the current case were deliberately destroyed to help the prosecution convict the defendant

on bogus allegations.” The State does not address this issue.

¶34 We note first that there is no record made in the District Court regarding a deliberate

destruction of this evidence or demonstrating related factual assertions which the Appellant

now argues. The Appellant acknowledges this deficiency, but blames it upon his trial

counsel, who “should have inquired into how and why court records got lost.” He further

argues that, although trial counsel moved for dismissal of the charges on this ground, counsel

nonetheless “failed to discuss . . . the main reason the transcripts were relevant to this case.”

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¶35 Although this issue, as stated, appears to challenge the District Court’s denial of the

motion to dismiss, the Appellant’s argument is a challenge to the handling of the issue by his

trial counsel, essentially a claim of ineffective assistance of counsel. However, the Appellant

acknowledges that the record neither demonstrates the alleged inadequacies in his counsel’s

performance, nor illustrates the additional factual contentions which would make the missing

audiotapes relevant. He does not argue that the District Court’s denial of his motion, based

upon the grounds presented at trial, was improper.

¶36 Under these circumstances, we must decline to address the Appellant’s arguments.

The issue, as presented by the Appellant, was not preserved for appeal, and neither does the

record illustrate the inadequacies of trial counsel claimed by the Appellant. Where a claim

of ineffective assistance of counsel is based on matters outside the record, we will refuse to

address the matter on appeal and allow the defendant to file a postconviction proceeding.

State v. Kougl, 2004 MT 243, ¶ 14, 323 Mont. 6, ¶ 14, 97 P.3d 1095, ¶ 14.

¶37 We affirm.

/S/ JIM RICE

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We Concur:

/S/ PATRICIA O. COTTER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART

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