Cunningham v. DC OF 13TH JUD. DIST. OF MONT.

Decision Date31 December 1975
Docket NumberNo. CV-75-112-BLG—CV-75-114-BLG.,CV-75-112-BLG—CV-75-114-BLG.
Citation406 F. Supp. 430
PartiesClancy CUNNINGHAM, Petitioner, v. The DISTRICT COURT OF the THIRTEENTH JUDICIAL DISTRICT OF the STATE OF MONTANA et al., Respondents. L. R. BRETZ, Petitioner, v. Roger CRIST, as Warden of the Montana State Penitentiary, Deer Lodge, Montana, and John Moe, as Sheriff of Missoula County, Montana, Respondents. Merrel CLINE, Relator, v. The STATE OF MONTANA and Roger Crist, Warden, Montana State Penitentiary, Respondents.
CourtU.S. District Court — District of Montana

Moses, Kampfe, Tolliver & Wright, Billings, Mont., for Clancy Cunningham.

Charles F. Moses, Moses, Kampfe, Tolliver & Wright, Billings, Mont., for L. R. Bretz.

W. William Leaphart, The Leaphart Law Firm, Helena, Mont., for relator Merrel Cline.

Richard Dzivi, Special Pros., Robert L. Woodahl, Atty. Gen. for the State of Montana, Helena, Mont., for respondents.

MEMORANDUM AND ORDER

BATTIN, District Judge.

The above-named petitioners have individually submitted petitions for writs of habeas corpus. Due to the similarity of issues, the cases were consolidated.

BACKGROUND FACTS.

Petitioner Cunningham

Petitioner was charged in Information No. 9017, filed on August 24, 1973, in Yellowstone County, with first degree assault. On March 21, 1974, a jury was impaneled and sworn, and the omnibus instruction was read. Prior to the swearing of any witness, the State was granted a motion to dismiss due to the unavailability of the key witness. A second Information alleging third degree assault was filed on May 20, 1974. On August 16, 1974, the Yellowstone County District Court granted petitioner's motion to quash the Information because of double jeopardy. On May 2, 1975, the Supreme Court of Montana reversed the District Court's order, holding that further prosecution was not barred by double jeopardy provisions of the United States and Montana Constitutions. State of Montana v. Cunningham, Mont., 535 P.2d 186 (1975). The Supreme Court denied petitioner's petition for rehearing on May 20, 1975. The matter was set for trial on November 11, 1975.

Petitioners Bretz and Cline

Information No. 3921 was filed on October 3, 1974, in Lewis and Clark County, charging petitioners with the commission of nine felonies. On March 13, 1975, a jury was impaneled and sworn, but no witnesses were sworn. The trial court then granted a motion by petitioners to dismiss one count. The State filed and the District Court granted a motion to dismiss the remaining counts on April 4, 1975, before any witnesses were sworn; a second Information, No. 3963, alleging the commission of two felonies by petitioners, was filed on the same day. Petitioners' motion to dismiss on the grounds of double jeopardy was filed on April 25, 1975, and the District Court denied it on May 1, 1975. Petitioner Bretz filed a petition for habeas corpus with the Supreme Court of Montana, alleging double jeopardy. This was denied by that court on July 23, 1975. Bretz v. Sheriff, Mont., 539 P.2d 1191 (1975). On September 2, 1975, the Supreme Court denied a rehearing. A trial commenced in the District Court of the First Judicial District on June 16, 1975, and on July 2, 1975 petitioners were found guilty of obtaining money by false pretenses — the same count that had been dismissed as the result of petitioners' motion.

ISSUES.

1. Is Section 95-1711 of the Revised Codes of Montana, 1947, constitutional in light of the double jeopardy provisions of the Fifth Amendment to the United States Constitution and the Montana Constitution?

2. Assuming that the United States Supreme Court were to hold that jeopardy attaches in state proceedings when the jury is sworn, does the doctrine of "manifest necessity" require that a further trial be held as to petitioners Bretz and Cline?

DISCUSSION.

A. Application of Fifth Amendment to the States.

There is no doubt that the double jeopardy prohibition contained in the Fifth Amendment to the United States Constitution applies to the States. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The Court in Benton stated:

"In 1937, this Court decided the landmark case of Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288. Palko, although indicted for first-degree murder, had been convicted of murder in the second degree after a jury trial in a Connecticut state court. The State appealed and won a new trial. Palko argued that the Fourteenth Amendment incorporated, as against the States, the Fifth Amendment requirement that no person `be subject for the same offense to be twice put in jeopardy of life or limb.' The Court disagreed. Federal double jeopardy standards were not applicable against the States. Only when a kind of jeopardy subjected a defendant to `a hardship so acute and shocking that our polity will not endure it,' id. at 328, 58 S.Ct. 149, at 153, did the Fourteenth Amendment apply. The order for a new trial was affirmed. In subsequent appeals from state courts, the Court continued to apply this lesser Palko standard. See, e. g., Brock v. North Carolina, 344 U.S. 424, 73 S.Ct. 349, 97 L.Ed. 456 (1953).
"Recently, however, this Court has `increasingly looked to the specific guarantees of the Bill of Rights to determine whether a state criminal trial was conducted with due process of law.' Washington v. Texas, 388 U.S. 14, 18, 87 S.Ct. 1920, 1922, 18 L.Ed.2d 1019 (1967). In an increasing number of cases, the Court `has rejected the notion that the Fourteenth Amendment applies to the States only a "watered-down, subjective version of the individual guarantees of the Bill of Rights . . .."' Malloy v. Hogan, 378 U.S. 1, 10-11, 84 S.Ct. 1489, 1495, 12 L.Ed.2d 653 (1964). Only last Term we found that the right to trial by jury in criminal cases was `fundamental to the American scheme of justice,' Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968), and held that the Sixth Amendment right to a jury trial was applicable to the States through the Fourteenth Amendment. For the same reasons, we today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment. Insofar as it is inconsistent with this holding, Palko v. Connecticut is overruled." (Footnotes omitted.) Benton, supra, at 793-794, 89 S.Ct. at 2062.

But the Court has been careful to distinguish between substantive rights and procedures. A review of the Court's actions concerning the right to trial by jury clearly establishes that the Court has determined that as long as the substance of the right is maintained, then the procedure by which the result is reached is wholly within the discretion of the State. See 47 Am.Jur.2d 640, 641.

As held in Duncan, supra, the due process clause of the Fourteenth Amendment imposes the Sixth Amendment trial by jury right upon the States. Rule 23(b) of the Federal Rules of Criminal Procedure, established to protect these rights, requires that a jury shall consist of twelve persons and that a verdict shall be unanimous. Despite this federal rule, several States have differing provisions.

Oregon and Louisiana, for example, have determined that notwithstanding the federal requirement of unanimity, a conviction could be attained on a less than unanimous jury vote. The Supreme Court has held that the States have the right and power to set such procedures and that the federal rule was strictly for use in federal trials. Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972).

Similarly, the Supreme Court has determined that a State can provide for a jury trial of less than twelve persons — again notwithstanding federal rules to the contrary. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970).

Clearly, the Supreme Court has not mandated that States accept the federal procedure as long as the State procedure preserves the constitutional objective. Montana's procedural rule does not present a "watered-down version" of the constitutional right. The defendants' substantive rights receive no less protection under the Montana statute than under federal procedures, for, practically speaking, the swearing of the jury and the swearing of the first witness occur nearly at the same point in time. Since the substance of the right has been clearly preserved, then the object of the constitutional provision guaranteeing that the defendant shall not be placed in jeopardy twice has been met.

As the Montana Supreme Court stated in Cunningham, supra, 535 P.2d at 189:

"We find no substantial difference between the two rules. Montana policy as enunciated by its legislature is that the trial does not start until the first witness is sworn. Sound policy reasons exist for this rule, principally that the jury as the trier of the facts has nothing to consider until the first witness is called and sworn. This appears entirely consistent with the constitutional standard that jeopardy does not attach until the defendant has been put to trial before the trier of the facts. Serfass v. United States (1975), supra 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265."

The Court, noting that they could perceive no inherent merit in the federal rule over Montana's state law, further stated:

". . . It has been said that the federal rule is designed to prevent prosecutorial manipulation. Illinois v. Somerville 88 Ill.App.2d 212, 232 N.E.2d 115, supra. It has further been said that the federal rule guarantees the defendant his valued right to have his trial completed before the tribunal and jury selected for his case. Wade v. Hunter (1949) 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974; United States v. Jorn, supra 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).
"We fail to see in what manner the federal rule protects against these abuses to
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3 cases
  • Bretz v. Crist, s. 76-1572 and 76-1169
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 18, 1976
    ...in the alternative, that federal standards for reprosecution following a declaration of mistrial had been met. Cunningham v. District Court, 406 F.Supp. 430, 432-434 (D.Mont.1975) (consolidated I. A TALE OF TWO TRIALS The evidence at the trial would justify finding that appellants Bretz and......
  • Crist v. Bretz
    • United States
    • United States Supreme Court
    • June 14, 1978
    ...if jeopardy had attached, a second prosecution was justified, as manifest necessity supported the first dismissal. Cunningham v. District Court, 406 F.Supp. 430 (Mont.).4 The Court of Appeals for the Ninth Circuit reversed. 546 F.2d 1336. It held that the federal rule governing the time whe......
  • State v. Cline
    • United States
    • United States State Supreme Court of Montana
    • November 10, 1976
    ... . Page 724 . 555 P.2d 724 . 170 Mont. 520 . The STATE of Montana, Plaintiff and Respondent, . ... We have held to the contrary in State v. Cunningham, 166 Mont. 530, 535 P.2d 186, 32 St.Rep. 433. The United ......

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