Hartman v. Mont. Nineteenth Judicial Dist. Court

• Decision Date: 08 March 2022
• Docket Number: OP 22-0037
• Court: Montana Supreme Court
• Parties: KIP HARTMAN, Petitioner, v. MONTANA NINETEENTH JUDICIAL DISTRICT COURT, LINCOLN COUNTY, HON. MATTHEW CUFFE, Presiding, Respondent.

KIP HARTMAN, Petitioner, v. MONTANA NINETEENTH JUDICIAL DISTRICT COURT, LINCOLN COUNTY, HON. MATTHEW CUFFE, Presiding, Respondent.

No. OP 22-0037

Supreme Court of Montana

March 8, 2022

ORDER

Pursuant to M. R. App. P, 14(3), Petitioner Kip Hartman seeks a writ of supervisory control over the Nineteenth Judicial District Court, Lincoln County, in Cause No. DC-19-75. Hartman asserts that retrial of the criminal prosecution against him after a mistrial was declared in the previous trial is barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution. Hartman requests this Court issue a writ of supervisory control prohibiting the retrial. The State responds that because the District Court declared a mistrial due to manifest necessity, retrial does not constitute double jeopardy.

The State charged Hartman with multiple counts arising from alleged fraudulent securities transactions. The District Court allotted nine days for the trial and advised the parties that their respective time would be divided equally. The District Court kept meticulous track of the parties' time and repeatedly reminded the parties during trial as to how much of their allotted time was remaining. On the second day of trial, the District Court expressed concern about the time being expended and reminded the parties that cross-examination was being counted in the equal time calculation. The District Court had the following exchange with Hartman's counsel:

THE COURT: There's a couple of things I wanted to make sure we all understood as we go forward that just kind of triggered, based on what [Hartman's counsel] had indicated when I asked him how much [cross- examination] he had left. Now, every night I'm getting a tally. I've got in my notes when things start, when things stop. You indicated at the beginning of this you wanted equal time. Your cross-examination is counting as your equal time. You understood that.

[HARTMAN'S COUNSEL]: Understood. And I've been tracking it myself.

THE COURT: I just wanted to make sure we were clear as we went forward with those things.

On Monday of the second week of trial, the District Court began by specifically advising both the State and Hartman exactly how much time they had left "[f]or the rest of your cross-examinations, cases and rebuttal." The District Court advised the State that it had ten hours and advised Hartman that he had fourteen hours. Hartman's counsel replied, "the 14 hours/ten hours, that works for me."

The State rested its case the following day. After the jury was excused, the District Court again reminded the parties to be mindful of their allotted time and advised that it would have a figure as to how much time each party had remaining the following morning. Hartman's counsel objected that Hartman was being denied his state and federal due process rights to present a defense because he could not complete his case in the remaining time. Hartman5 s counsel also suggested that he could not render effective assistance of counsel in the remaining time and requested additional time. The District Court reminded Hartman's counsel that he had told him on Monday morning that he had fourteen hours left "to use however you want." The District Court reminded Hartman's counsel that, at the pretrial hearing he advised the parties as to how much time they would have that the parties would have the same amount of time, and that cross-examination would count against their time. The State responded that it was not taking a position on Hartman's request for more time but requested that if Hartman was awarded more time, the State be awarded proportional time as well. The District Court stated it would take Hartman's request for more time under advisement and would address it the following morning. When court resumed the following morning, the District Court advised the parties of their respective time remaining and refused to add additional time.

On the eighth day of trial, Hartman's counsel announced that he intended to call Hartman to testify but that he could not complete Hartman's testimony in the time he had remaining. Hartman's counsel acknowledged that he had agreed to the time that was allotted after it had been explained how the time would be calculated for each side, and that at the pretrial he "wanted to make sure [he] got the same amount of time" as the State. Regarding the insufficient time remaining, Hartman's counsel stated:

He [Hartman] gets his opportunity to talk, and I've taken it away from him. I have provided ineffective assistance. I have failed to provide or safeguard his state Constitutional right to the assistance of counsel, because I have failed to leave enough time for him to testify.

The District Court inquired: "So your request is allow Mr. Hartman to testify for as long as he wants. Is that right?" To which Hartman's counsel replied: "Not as long as he wants. As long as he needs." When pressed for a specific amount of time he anticipated Hartman would need, his counsel initially indicated three hours, but when the District Court speculated as to how that would be timed, Hartman's counsel stated, "I would submit rather than time it, that the Court restrain it with [Rules] 401, 402 and, most importantly, 403." The State responded that if Hartman was allowed an additional three hours for direct examination, it was concerned that it be granted additional time as well. The District Court ordered the parties to appear for a formal argument on Hartman's motion the following morning.

At the hearing the following morning, Hartman offered no further argument. The State took no position on Hartman's motion for more time, other than to request that it be given an equal amount of time for cross-examination. Noting that Hartman had the right to testify, the District Court agreed with Hartman's counsel that because of "[Hartman's] attorney ['s] conduct in this case, we are in a situation where we cannot complete [the trial] in the allotted time." The District Court noted:

We also find our situation, which everybody knew about because the Court has been very clear as to our schedule, that we have a criminal jury trial' scheduled next week. Now, I also have fitness to proceed evaluations for people who are incarcerated. I have hearings for incarcerated Defendants as to their current counsel. Both of those are set. They all have Constitutional rights that they are entitled to have this Court protect. The week following we have another three-day criminal trial and additional hearing in the same vein for criminal Defendants; orders of protection, all of which statutorily have to be recognized and have to be dealt with.

[K]nowing that Mr. Hartman has that right [to testify], he gets to testify, and he should testify for as long as he feels is appropriate and necessary, we don't have the time to get this done within the allotted period of time. I have no choice but to declare a mistrial. I have to. Because he has those rights. And I can't put it any place else.

After the District Court determined that it had to declare a mistrial to protect Hartman's constitutional right to testify, Hartman's counsel suddenly offered to complete Hartman's testimony in ninety minutes, despite having previously stated that Hartman's testimony should not be constrained by a particular time limit but only by Montana Rules of Evidence 401, 402, and 403. The District Court recessed to consider Hartman's proposal. After the recess, the District Court...