NO. 87-155
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Appellant,
-vs-,
KENNETH N. MORAN,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
Honorable Byron L. Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Honorable Mike Greely, Attorney General, Helena, Montana
Robert F. W. Smith, Assistant Attorney General
Mike Salvagni, County Attorney, Bozeman, Montana
Marty Lambert, Deputy County Attorney
For Respondent:
LeAnne Schraudner, Lilly, Andriolo and Schraudner;
Bozeman, Montana
Richard Nellen, Bozeman, Montana
Submitted: January 15, 1 9 8 8
Decided: April 21, 1988
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The State of Montana appeals an order granting dismiss-
al of four criminal charges against the defendant in the
Eighteenth Judicial District, Gallatin County. We reverse
and remand for trial.
The issue is whether the District Court committed error
by granting defendant's motion to dismiss.
In May, 1986, Mr. Moran was charged with the crime of
forgery by accountability or in the alternative, conspiracy
to commit forgery. Later that month he was charged with two
counts of witness tampering. The two cases were consolidated
by the District Court, and trial began on September 22, 1986.
The jury was empaneled and sworn on that day, and the prose-
cution presented six witnesses. This was defense counsel's
first felony criminal trial before a jury. On the morning of
the second day of trial, before any more testimony was of-
fered, the trial judge on his own motion declared a mistrial.
The basis for this action was the court's belief that defen-
dant was being denied effective assistance of counsel and
that manifest necessity required mistrial. The defense
raised no objection to mistrial, although the State did
object.
The court scheduled the matter for retrial in November
1986. As the parties prepared for retrial, the original
trial judge was substituted. The substitute judge then
ordered briefs on the issue of retrial and double jeopardy,
pursuant to defendant's motion to dismiss. Subsequently,
this substitute judge granted the motion.
Did the District Court commit error by granting defen-
dant's motion to dismiss?
We accord great deference to the trial judge's findings
and conclusions when the judge heard the witnesses and
observed their demeanor. Similarly, we accord deference to
the trial judge's judgment as to competence of counsel when
the judge heard and observed his performance as criminal
defense counsel, both in chambers and in the courtroom during
voir dire and trial. The substitute judge likewise should
accord deference to the original trial judge on these mat-
ters. The substitute judge in effect reversed the trial
judge, having reviewed only seven pages of a trial transcript
which when complete contains 221 pages of voir dire, testimo-
ny, and in-chambers discussions. For these reasons, the
substitute judge's order of dismissal will not receive the
same deference as the action by the trial judge.
We now consider whether the trial judge abused his
discretion in finding manifest necessity for mistrial. The
trial judge's action was motivated by his concern for defen-
dant's constitutional right to effective assistance of coun-
sel. Because the decision to order mistrial was made to
protect defendant's constitutional interests, that decision
will receive a high degree of deference on review. See
United States v. Sanders (9th Cir. 1979), 591 F.2d 1293, 1297
(stating "A trial judge's decision to declare a mistrial
because of possible juror bias is also deserving of great
deference. " ) ; see also FJright v. United States (D.c. 1976) ,
365 A.2d 365. The defendant's interest in effective assis-
tance of counsel, however, must be considered in light of his
Fifth Amendment right not to be placed twice in jeopardy.
Jeopardy attaches when the jury is empaneled and sworn.
State v. Carney (Mont. 1986), 714 P.2d 532, 535, 43 St.Rep.
54, 58. In this case, jeopardy had attached. The constitu-
tional protection against double jeopardy bars a second
criminal trial "unless there was a 'manifest necessity' to
terminate the trial or defendant acquiesced in the termina-
tjon." Carney, 714 P . 2 d at 535.
If the trial judge exercised sound discretion, if he
acted rationally and responsibly, his order of mistrial will
be affirmed. Arizona v. Washington (1978), 434 U.S. 497,
514, 98 S.Ct. 824, 54 L.Ed.2d 717. Upon review, "[tlhe
record must support the explicit or implicit finding of
manifest necessity. " United States v. Jarvis (9th Cir.
1986), 792 F.2d 767, 769. Our review of the record convinces
us that the trial judge acted responsibly, exercising sound
discretion when he found manifest necessity for a mistrial.
The trial judge concluded that counsel was too inexpe-
rienced to defend a major felony charge involving conspiracy
and accountability theories. One example was the failure of
defense counsel to object to the admission of State's exhibit
38 which was the foundation for an alleged admission or
confession of the defendant. Exhibit 38 was offered in
evidence through a deputy sheriff. Exhibit 38 was a "rights"
card, which contained a Miranda statement of the defendant's
right against self-incrimination and his right to assistance
of counsel. This particular form provided a line for the
defendant's signature if he made a signed waiver. The defen-
dant here had not signed that line. The form also provided a
space where the deputy could write down the answer of the
defendant when he was asked "Do you want to use any of these
rights before we ask you questions?" The officer testified
that he had not filled out that blank and that he could not
explain why he had failed to get either the defendant's
signature for a written waiver or why he failed to record an
oral waiver. Defense counsel did not make any objection at
that point. Notwithstanding the absence of an objection, the
trial court called counsel into chambers and afforded defense
counsel an opportunity to object to the admission of evi-
dence. The court inquired as to the testimony which was
going to come in and was advised as to the nature of the
confession type evidence. At that point, even though counsel
for the defense had still failed to make any objection, the
court refused the testimony on the grounds that the officer
failed to properly obtain an oral waiver of rights.
The following day, before the commencement of trial,
the court made the following ruling:
Let the record show we're outside the presence
of the jury. After some agonizing thought on this
matter, gentlemen -- let the record show the Defen-
dant is present, represented by [counsel]. Mr.
Lambert is present. I am regretfully concluding
that [defense counsel] does not have the sufficient
experience to try this case, and that is no reflec-
tion on you . . . . I was in a similar situation
when I was in your shoes, but the constitution
requires that the Defendant be guaranteed effective
assistance of counsel, and I'm going to conclude
that he does not have that, and I'm going to grant
on my own motion a mistrial and I'm going to find
that manifest necessity dictates that matter be
retried and that the bars of double jeopardy do not
prevent a retrial.
Counsel for the defendant argues that the record re-
flects that the defendant voluntarily and intelligently
waived his rights prior to the confession. They cite State
v. Blakney (1982), 641 P.2d 1045, 197 Mont. 131, where this
Court pointed out that the existence of a valid waiver de-
pends in each case upon the particular facts and circumstanc-
es, including the background, experience and conduct of the
accused and other appropriate considerations including the
age, education and intelligence of the accused and his capac-
ity to understand the warnings and the consequences of waiv-
ing those rights. In addition this Court pointed out that a
valid waiver must include an actual relinquishment of the
benefits as evidenced by the actions or statements of the
accused. The record contains substantial evidence to support
the conclusion of the District Court that the State had
failed to properly obtain an oral waiver of rights so that
the defendant's admission or confession was not admissible in
evidence.
We conclude that the trial judge acted rationally,
carefully considering the problems of the difficult situation
with which he was confronted. There is substantial evidence
from which to conclude that counsel's performance had been
ineffective. There is substantial evidence to support the
conclusion that highly prejudicial evidence would have been
admitted for the lack of a proper objection if the trial
judge had not stepped in. We conclude that the trial court
exercised sound discretion.
Because mistrial is an extreme remedy, a trial judge
should carefully consider alternatives. No reasonable alter-
natives were suggested in this case. A continuance until a
new defense counsel was familiarized with the case would have
resulted in an unnecessary delay, Cautionary instructions
would not have been adequate. No reasonable alternatives
were presented.
Defense counsel argues that the trial court should have
considered the tactics of counsel for the defendant. Having
concluded that the failure to object to the rights card and
the admission testimony was highly prejudicial to the defen-
dant, there remains no question of trial tactics. Counsel
failed to object to the admission of damaging evidence in the
absence of a proper foundation. We conclude that the trial
judge was in the best position to judge the performance of
counsel and the effect of the evidence, and the record sup-
ports his judgment. By this opinion we do not intend a
criticism of the defense counsel. The record demonstrates
that he applied himself diligently in the performance of his
duties, but that he had insufficient experience to recognize
the extent of his duties.
The argument is made that we should apply the
two-pronged Strickland test to the trial court's determina-
tion. The second prong of that test requires the defendant
to show that the deficient performance prejudiced the defense
and that the errors were so serious as to deprive the defen-
dant of a fair trial. That test was established for the
review of actions taken in the course of a completed trial.
There is no way of showing in the present case whether the
conduct deprived the defendant of a fair trial because a
mistrial was declared. We conclude that the Strickland test
is not applicable. As previously stated, we conclude that
the standard upon review of a decision to order mistrial is
whether the trial court exercised sound discretion.
We conclude that the trial judge exercised sound dis-
cretion when he found manifest necessity for mistrial. We
also conclude that there was no basis for reversal by the
subsequent trial judge who granted the dismissal of all
charges against the defendant.
We reverse the order dismissing the charges on grounds
of double jeopardy and remand the c
We Concur:
- - .- . - -
. . a
. . - -- - ---
.
Justices
7
Mr. Justice William E. Hunt, Sr., dissenting:
The majority today provides the means by which the
defendant may be tried twice for the same offense.
Accordingly, I dissent.
In its opinion, the majority holds that the substitute
judge should not be accorded the same deference upon review
as is normally accorded trial courts because it reviewed only
a partial transcript of the proceedings. It then proceeded
to discuss only one incident that was an "example" of
counsel's inexperience, namely failing to object to an
improperly filled out rights cards. It was the partial
transcript of this incident that the substitute judge
reviewed along with the parties' briefs and District Court
record, and it was this incident which the substitute judge
found was not manifest necessity for a mistrial. Although
the majority has reviewed the whole record, it does not point
to any other example of "ineffectiveness" and confines itself
to a discussion of the very incident the substitute judge
reviewed.
It is clear to me that the substitute judge should have
been given more deference by the majority than he was.
Declaring a mistrial is an extreme measure which should be
used with great caution. State v. Carney (Mont. 1986) , 714
P.2d 532, 535, 43 St.Rep. 54, 59. Reviewing courts must be
satisfied that the trial court exercised sound discretion in
declaring a mistrial. Arizona v. Washington (1978), 434 U.S.
497, 514, 98 S.Ct. 824, 835, 54 L.Ed.2d 717, 733. The
majority has discussed only one instance of defense counsel's
possible "inadequacy." The trial court cited no particular
incident that prompted its action, nor has the majority
explained any other event that showed inadequate
representation other than the one also reviewed by the
substitute judge. It seems to me that the substitute judge
balanced the defendant's constitutional interest with the
public's interest in prosecution and, not surprisingly, came
out in favor of the Constitution.
Montana has adopted and refined the two-pronged test for
ineffective assistance of counsel set out by the United
States Supreme Court in Strickland v. Washington (1984), 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See, State v.
Robbins (Mont. 1985), 708 P.2d 227, 42 St.Rep. 1440. he
Strickland test is as follows:
First, the defendant must show that counsel's
performance was deficient. This requires showing
that counsel made errors so serious that counsel
was not functioning as the 'counsel1 guaranteed the
defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both showings,
it cannot be said that the conviction or death
sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
Strickland, 466 U.S. at 687.
In Robbins, this Court stated that a counsel's
assistance is constitutionally effective if he or she acts
"'within the range of competence demanded of attorneys in
criminal cases.'" Robbins, 708 P.2d at 231, quoting State v.
Rose (1980), 187 Mont. 74, 86, 608 P.2d 1074, 1081. If an
attorney's conduct fails this first step them it must be
shown that the error resulted in prejudice and "'stemmed from
neglect or ignorance rather than from informed professional
deliberation.'" Robbins, 708 P.2d at 231, quoting State v.
Morigeau (1982), 202 Mont. 36, 44, 656 P.2d 1851 189-
Robbins
- - concerned the defendant's claim that his attorney
had, inter alia, failed to make a motion to suppress some
properly seized evidence, namely stolen guns. This Court
discovered nothing in the record that supported any of the
defendant's claims.
In fact, the failure to make the above motion was sound
professional judgment considering there were no
irregularities in Robbins' arrest or in the seizure of the
evidence. Robbins, 708 P.2d at 232. Of particular interest
is the recent decision of State v. Probert (Mont. 1986), 719
P.2d 783, 43 St.Rep. 988, in which the court held that
although counsel's failure to object to hearsay was error, it
was not prejudicial. The Court also recognized that "[tlhere
is a difference between ineffective assistance and counsel's
tactical decisions in defense of a case." Probert, 719 P.2d
at 787.
I disagree with the majority's assertion that the
Strickland test is not applicable to the case at hand because
it was not a completed trial. The United States Supreme
Court does not limit its decision in such a manner. In fact,
Strickland itself arose not out of a trial proper but out of
a post-trial capital hearing proceeding which the court
claimed was "adversarial" enough in nature to warrant
application of the test. The proceeding we are concerned
with was an actual trial, although an uncompleted one.
Perhaps the full Strickland test is not appropriate in
proceedings terminated sua sponte by the presiding judge but
its general thrust is, especially when the trial is
interrupted because the court feels ineffective assistance is
taking place. If we do not measure the court's soundness of'
decision in a manner at least similar to Strickland, how else
are we to review the decision?
Defendant argues that what Judge Olson perceived as
ineffective assistance of counsel was in fact a tactical plan
designed to promote the eventual impeachment of the State's
witnesses. Moran's counsel made many appropriate motions and
objections before and after trial. There appears to be only
one place during the trial proceedings where Judge Olson was
concerned with defense counsel's conduct. This instance was
thoroughly examined by the substitute judge and found not to
rise to the level of ineffective assistance of counsel. This
conclusion deserves every deference normally accorded trial
court decisions. /I
Justice
Mr. Justice John C. Sheehy, concurring in the foregoing
dissent.