No. 85-116
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1986
STATE O MONTANA,
F
P l a i n t i f f and A p p e l l a n t ,
-vs-
MICHAEL CARNEY,
Defendant and Respondent.
APPEAL FROM: D i s t r i c t Court o f t h e
I n and f o r t h e County o ,
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The H o n o r a b l e J o s e p h G a r y , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
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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
A. M i c h a e l S a l v a g n i , County A t t o r n e y , Bozeman,
Montana
James D . McKenna a r g u e d , Deputy County A t t o r n e y ,
Bozeman, Montana
For Respondent:
Mike Sand a r g u e d , Bozeman, Montana
Submitted: November 2 7 , 1986
Decided: J a n u a r y 1 6 , 1986
Filed: J N 1 6 1986
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Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Michael Carney, defendant, was charged with driving
while under the influence of alcohol and with two counts of
negligent homicide. During the second day of trial, the
Gallatin County District Court sustained defendant's
objection to the admissibility of blood samples because the
State failed. to establish a proper chain of custody. The
State advised the caurt that they desired to appeal its
decision. The Court dismissed the jury. The State appeals.
We dismiss the appeal and remand to the District Court with
directions that the charges be dismissed with prejudice.
The issues are:
1. Was the order ruling the blood samples inadmissible
for failure to lay a proper foundation appealable?
2. Do the double jeopardy clauses of the United States
Constitution and the Montana Constitution prohibit a retrial
of the defendant?
On June 11, 1982, defendant was involved in an
automobile accident in which two persons were killed near
West Yellowstone. Shortly after the accident, defendant was
transported by ambulance to Ashton Memorial Hospital in
Ashton, Idaho. The investigating highway patrolman called
the hospital and requested a blood sample for alcohol testing
purposes. A qualified lab technician at the hospital drew
samples at 11:OO p.m. and 12:OO midnight. She placed the two
samples in separate vials and sealed them. She wrote on each
vial the defendant's name, the date, and the time each blood
sample was taken.
The lab technician delivered the blood samples in a
paper sack to the ambulance driver. The driver did not look
inside the sack containing the blood samples. He could not
testify as to the manner of sealing. He merely took the
paper sack from Ashton, Idaho to West Yellowstone, Montana.
When he was unable to locate the highway patrolman, the
ambulance driver put the sack containing the samples on the
police dispatcher's desk. That took place at approximately
1 : 0 0 a.m.
At approximately 1:00 p.m. or 12 hours later, the
highway patrolman picked up the samples from the police
dispatcher's desk. The patrolman testified the two vials
were in a stapled sack inside a sealed manila envelope. The
patrolman opened the envelope and the sack and found the two
vials of blood. He testified he did not open the seals on the
vials. He placed the vials in a mailing container furnished
by the Montana State Crime Investigation Laboratory and sent
them to the laboratory for testing.
The State was unable to explain the actual custody of
the blood samples during the approximately 12 hours between
the time the samples were left at the police dispatcher's
desk until they were picked up from the same desk by the
highway patrolman. This was the crucial factor in the order
of the District Court.
The hea.d of the Alcohol Section at the State Crime
Laboratory testified that both vials were still sealed when
he received t-hem, that he removed the seals, and that the
blood alcohol test was run under his supervision. He
emphasized that the seals had not been broken. In the course
of this examination, the State moved for the admission of the
blood sample vials. At that point, the defense counsel made
the following objection:
Your Honor, I am going to object to the
introduction of those exhibits and any testimony
relating to them on the basis of foundation,
specifically, there hasn't been a proper chain of
custody laid, therefore no foundation.
Outside of the presence of the jury, extensive testimony
was presented to the District Court judge with regard to the
blood samples and the results of the tests. This was
followed by extensive argument on the part of counsel. The
court then made the following ruling:
I'm going to sustain the objection and I'm not
going to admit it on the basis and fact there is no
chain from the period he left Frankie Harringfeld
[the laboratory technician]. Mr. Costello is a.n
ambulance driver and not a police officer. He
takes the sample to the dispatcher and they put the
thing on the desk. The officer testified that he
didn't even pick it up from the dispatcher but
right on the desk there.
[I]t bothers me with two people dead, the officer
can't even go down to Idaho to pick up this sample
when that's what they are trained to do, so I'm
going to sustain the objection and refuse to admit
it.
When the county attorney advised that the State desired to
appeal the ruling of the District Court, the court pointed
out that this would raise a question of double jeopardy.
That element was discussed by the county attorney and by
defense counsel. Notwithstanding that discussion, the
county attorney concluded that it was advisable to appeal the
order. The District Court dismissed the jury in the
following language:
Ladies and gentlemen of the jury, I would like to
advise you that I have made a ruling contrary to
the State's position and they are going to appeal
the case to the Supreme Court, therefore, you are
dismissed. I wish to thznk you for your attention
and the care with which you have given this case.
I'm sorry you cannot go to the conclusion but that
is the decision of the county attorney, so you are
dismissed.
Our two issues are whether the ruling that the blood
samples are inadmissible as evidence is an appealable order,
and whether the double jeopardy clauses prohibit a retrial of
the defendant. Because these issues are interwoven, we will
discuss them together.
With regard to the issue on the right to appeal from the
evidentiary ruling, both parties agree that the State's right
of appeal, if any, is controlled by S 46-20-103, MCA:
Scope of appeal by state. (1) Except as otherwise
specifically authorized, the state may not appeal
in a criminal case.
(2) The state may appeal from any court order or
judgment the substantive effect of which results
in:
(a) dismissing a case;
(b) modifying or changing the verdict as provided
in 46-16-702 (3) (c);
(c) granting a new trial;
(d) quashing an arrest or search warrant;
(e) suppressing evidence;
(f) suppressing a confession or admission; or
(g) granting or denying change of venue.
With reference to subsection (e) of the statute, the State
argues that the term "suppressing evidence" shoul-d be broadly
construed. The State contends that the statute applies to
all rulings excluding evidence which substantially impair the
State's case, as well as to the suppression of evidence which
has been illegally obtained. See State v. Newrnan (Kan. 1984),
680 P.2d 257. The State argues that the order effecti-vely
suppressed significant evidence and is therefore appealable.
The defendant objected to the admission of the blood
samples because of the failure to lay a proper foundation,
specifically because of the failure to prove a proper chain
of custody. The District Court sustained that objection.
Defendant contends that the evidentiary ruling by the
District Court does not fit within the statutory exceptions
which allow an appeal.
Section 46-20-103, MCA, d.oes not distinguish between
appeals made prior to the commencement of trial (pre-trial)
and appeals taken in the course of trial (mid-trial). We
must carefully distinguish between pre-trial and mid-trial
appeals. Mid-trial criminal appeals raise the constitutional
question of double jeopardy. Pre-trial appeals do not raise
such an issue. Because this is a mid-trial appeal, we must
analyze the d.ouble jeopardy aspect of such an appeal-.
The fifth amendment of the United States Constitution.
and art. 11, sec. 25 of the Montana Constitution prohibit an
individual from being twice put in jeopardy for the same
offense. The policy considerations for this fundamental
right were stated by the United States Supreme Court in
United States v. Jorn (1971), 400 U.S. 470, 479:
The Fifth Amendment's prohibition against placing a
defendant "twice in jeopardy" represents a
constitutional policy of finality for the
defendant's benefit in federal criminal
proceedings. A power in government to subject the
individual to repeated prosecutions for the same
offense would cut deeply into the framework of
procedural protections which the Constitution
establishes for the conduct of a criminal trial.
And society's awareness of the heavy personal
strain which a criminal trial represents for the
individual defendant is manifested in the
willingness to limit the Government to a single
criminal proceeding to vindicate its very vital
interest in enforcement of criminal laws.
In a jury trial, jeopardy attaches when the jury is
empaneled and sworn. Crist v. Bretz (1978), 437 U.S. 28. It
is undisputed that jeopardy had attached prior to dismissal
in this case.
A second criminal trial is ba,rred unless there was a
"manifest necessity" to terminate the trial or defendant
acquiesced in the termination. See W. LaFave & J. Israel,
Criminal Procedure S24.l (d) at 901 .
(1985) "Manifest
necessity" has been explained by the United States Supreme
Court as follows:
Under the [manifest necessity] rule a
trial can be discontinued when particular
circumstances manifest a necessity for so
doing, and when failure to discontinue
would defeat the ends of justice.
Wade v. Hunter (1949), 336 U.S. 684, 690.
...Indeed, it is manifest that the key
word "necessity" cannot be interpreted
1i.terally; instead ...
we assume that
there are degrees of necessity and we
require a "high degree" before concluding
that a mistrial is appropriate.
The question whether that "high degree"
has been reached is answered more easily
in some kinds of cases than in others.
At one extreme are cases in which a
prosecutor requests a mistrial in order
to buttress weaknesses in his evidence.
Although there was a time when English
judges served the Stuart monarchs by
exercising a power to discharge a jury
whenever it appeared that the Crown's
evidence would be insufficient to
convict, the prohibition against double
jeopardy as it evolved in this country
was plainly intended to condemn this
"abhorrent" practice ...
Thus, the strictest scrutiny is
appropriate when the basis for the
mistrial is the unavailability of
critical prosecution evidence, or when
there is reason to believe that the
prosecutor is using the superior
resources of the State to harass or to
achieve a tactical advan.tage over the
accused.
At the other extreme is the mistrial
premised upon the trial judge's belief
that the jury is unable to reach a
verdict, long considered the classic
basis for a proper mistrial ...
Arizona v. Washington (1978), 434 U.S. 497, 506-09. We
approve and. adopt the preceding explanations of "manifest
necessity" given in Wad.e and Arizona.
In considering whether or not the facts of this case
meet the statutory definition of suppression of evidence, the
claimed necessity for granting an appeal must be balanced
against and harmonized with the defendant's fundamental
rights under the double jeopardy clauses of the United States
and Montana Constitutions.
In seeking to determine whether there was a "manifest
necessity" to discontinue the trial and allow an
interlocutory appeal, the court must exercise the power to
discharge a jury "with the greatest caution, under urgent
circumstances, and for plain and obvious cases." See Wade v.
Hunter (1949), 336 U.S. 684, 690, citing United States v.
Perez (1824), 6 U.S. 165. Under that standard, a trial
should be discontinued with great caution.
Does an adverse eviden.tiary ruling based upon the
failure to prove a chain of custody constitute manifest
necessity? We conclude that as a general rule, a ruling on
the admission of evidence which is adverse to the State does
not constitute an urgent circumstance or a plain and obvious
case constituting manifest necessity.
Is there something unique about the facts of the present
case which prohibits the application of that general
principle? The objection to the admission of evidence was
based upon the lack of a foundation because of the failure to
prove a proper chain of custody. The objection was sustained
by the District Court. These facts do not suggest a plain
and obvious case warranting an appeal, nor do they describe
an urgent circumstance. The prosecution had an adequate
opportunity to present the question of admissibility in a
pre-trial motion. They did not exercise that choice. We
conclude that the State has failed to show a "manifest
necessity" for discontinuing the trial and initiating the
interlocutory appeal.
We conclude that the order sustaining the objection to
the admission of evidence did not constitute "suppressing
evidence" as defined in 5 46-20-103, MCA. We hold that the
District Court order ruling the blood samples inadmissible
for failure to lay a proper foundation was not an appealable
order.
Because the State has failed to meet the standard of
"manifest necessity," we further conclude that it would be
constitutionally impermissible to again place the defendant
in jeopardy. We hold that a further trial of the defendant
for the same offenses would constitute double jeopardy.
The appeal of the State of Montana is dismissed. The
cause is remanded to the District Court for the dismissal of
the charges against the defendant with prejudice.
We Concur:
V
1
Justices.