State of Mont. v. Duncan, DA 11–0744.

• Citation: 366 Mont. 443,291 P.3d 106
• Decision Date: 30 October 2012
• Docket Number: No. DA 11–0744.,DA 11–0744.
• Parties: STATE of Montana, Plaintiff and Appellee, v. Alvin James DUNCAN, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

366 Mont. 443

291 P.3d 106

STATE of Montana, Plaintiff and Appellee,

v.Alvin James DUNCAN, Defendant and Appellant.

No. DA 11–0744.

Supreme Court of Montana.

Submitted on Briefs Aug. 22, 2012.

Decided Oct. 30, 2012.

For Appellant: Joseph P. Howard P.C.; Attorney at Law; Great Falls, Montana.

For Appellee: Steve Bullock, Montana Attorney General; C. Mark Fowler, Assistant Attorney General; Helena, Montana, Mike Weber, Richland County Attorney; Sidney, Montana.

Justice BETH BAKER delivered the Opinion of the Court.

[366 Mont. 444]¶ 1 This is Alvin James Duncan's (Duncan) second appeal to this Court. In the prior appeal, we affirmed Duncan's conviction of two counts of felony sexual assault and remanded the case for resentencing. State v. Duncan, 2008 MT 148, 343 Mont. 220, 183 P.3d 111. The District Court for the Seventh Judicial District, Richland County, subsequently granted Duncan's petition for postconviction relief on the grounds of ineffective assistance of counsel and prosecutorial misconduct. In this interlocutory appeal, Duncan challenges the District Court's order denying his motion to dismiss the criminal charges for which the State intends to re-prosecute him.

¶ 2 The only issue on appeal is whether the District Court erred when it denied Duncan's motion to dismiss the criminal charges on double jeopardy grounds. “[W]e will accept an interim appeal for the sole purpose of considering the merits of the defendant's double jeopardy claims.” State v. Barron, 2008 MT 69, ¶ 8, 342 Mont. 100, 179 P.3d 519. We accept the appeal and affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 The factual background of Duncan's alleged offenses and prior conviction is set forth in this Court's previous opinion. Duncan, ¶¶ 8–14. Duncan was charged with sexually assaulting his stepdaughter, C.S., and her friends, V.G. and N.M., all minors. The jury convicted him of the charges involving V.G. and N.M., and acquitted him of the charges involving C.S. Duncan, ¶ 14. After his conviction was affirmed on direct appeal, Duncan filed pro se a petition for postconviction relief. The District Court appointed counsel and received supplemental briefs. The court granted Duncan's petition for postconviction relief because it determined that his trial counsel provided ineffective assistance when he (1) “fail[ed] to object to the Prosecutor's statements in closing arguments suggesting that Duncan was required to ‘refute’ the State's proof”; and (2) “mischaracterize[ed] the burden of proof in closing argument.” The court concluded that those failures “deprived Duncan of a fair trial” and violated his rights to counsel and to due process under the state and federal constitutions. Mont. Const. art. II, §§ 17, 24; U.S. Const. amends. VI, XIV. The court granted Duncan a new trial and ordered that his sentence be vacated and his guilty verdict stricken from the record. The State later notified Duncan that it intended once more to prosecute him for committing the crimes of which the jury had found him guilty.

¶ 4 Duncan moved to dismiss the charges against him, arguing that, under our cases applying the Supreme Court's holding in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), “the Double Jeopardy Clause affords protection where prosecutorial misconduct prevents an acquittalby achieving a conviction by improper means.” The court denied Duncan's motion because it concluded that he “fail[ed] to establish that the objective facts and circumstances of the case show the prosecutor intended to goad [him] to move for a mistrial” as required by Kennedy. On appeal, Duncan urges this Court to conclude that his constitutional guarantee to be free from double jeopardy prohibits the State from prosecuting him for a second time.

STANDARD OF REVIEW

¶ 5 The grant or denial of a motion to dismiss in a criminal proceeding “is a question of law, which we review de novo to determine whether the district court's conclusion of law is correct.” State v. Otto, 2012 MT 199, ¶ 7, 366 Mont. 209, 285 P.3d 583 (quoting State v. Allen, 2009 MT 124, ¶ 9, 350 Mont. 204, 206 P.3d 951). “A double jeopardy claim presents a question of constitutional law over which we exercise plenary review.” State v. Brooks, 2010 MT 226, ¶ 11, 358 Mont. 51, 243 P.3d 405. We consistently have held that “if a district court reaches the correct result, then we will uphold the court's judgment regardless of the reasons for its decision.” Parini v. Missoula Co. High Sch., 284 Mont. 14, 21–22, 944 P.2d 199, 203 (1997).

DISCUSSION

¶ 6 The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” The Clause applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). Montana's Constitution establishes similar double jeopardy protections, stating: “No person shall be again put in jeopardy for the same offense previously tried in any jurisdiction.” Mont. Const. art. II, § 25. “[C]entral to the objective of the prohibition against successive trials is the barrier to affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” U.S. v. DiFrancesco, 449 U.S. 117, 128, 101 S.Ct. 426, 432–33, 66 L.Ed.2d 328 (1980) (quoting Burks v. U.S., 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978)) (internal quotations omitted).

¶ 7 It is well established that “[w]hen a mistrial is granted on the defendant's motion in a criminal case ... the Double Jeopardy Clause ordinarily does not bar the State from trying him or her again on the same indictment.” State v. Mallak, 2005 MT 49, ¶ 18, 326 Mont. 165, 109 P.3d 209. A “narrow exception to this rule” occurs “[o]nly where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial ....” Mallak, ¶ 18 (quoting Kennedy, 456 U.S. at 676, 102 S.Ct. at 2089). Although Duncan acknowledges that he did not move for a mistrial, he argues that “there should be no distinction” between a defendant “ who successfully requests a mistrial because of the prosecution's misconduct” and defendants who are “deprived of a fair trial because of prosecutorial misconduct and attendant ineffective assistance of counsel, then successfully overturn their convictions via postconviction relief.”

¶ 8 The State responds to Duncan's argument by asserting that, “[b]ecause no mistrial was declared in Duncan's trial, the instant case does not present the scenario permitted under Oregon v. Kennedy.” The State argues that we should not expand the Kennedy exception, which we adopted in Mallak, to convictions overturned on postconviction relief because this Court already has held that “a defendant is not subjected to double jeopardy by virtue of his retrial” when his judgment of conviction has been set aside at his request. See State ex rel. Nelson v. Ellsworth, 141 Mont. 78, 81–82, 375 P.2d 316, 318 (1962). The State cites § 46–11–505(2), MCA, as additional support for its position.

¶ 9 Duncan contends in his reply brief that the State's arguments are not properly before this Court because the State did not make those same arguments to the District Court. Duncan argued to the District Court in his motion to dismiss that “there should be no distinction between a defendant who ... is deprived of a fair trial because of prosecutorial misconduct and attendant ineffective assistance of counsel, then successfully appealshis conviction on the same basis, and a defendant who successfully requests a mistrial because of the prosecutor's misconduct.” He advances the identical argument on appeal. The State contended in District Court that Duncan had not satisfied the Kennedy/Mallak standard of proving that the prosecutor “goaded” him into seeking a new trial. Duncan's appeal squarely presents the question whether the Kennedy standard applies when a new trial has been granted on postconviction relief rather than on a motion for mistrial. The State's reference to additional authority in responding to his argument does not pose an obstacle to our plenary review of the issue Duncan raises on appeal. See State v. Montgomery, 2010 MT 193, ¶ 12, 357 Mont. 348, 239 P.3d 929.

[366 Mont. 447]¶ 10 Duncan's proposed exception—that a defendant's double jeopardy protections bar retrial if his conviction is reversed on postconviction relief due to prosecutorial misconduct—directly conflicts with Montana law. Section 46–11–505(2), MCA, establishes that “[a] prosecution is not a bar if ... the former prosecution resulted in a judgment of conviction that was held invalid in a postconviction hearing.” Duncan does not challenge the constitutionality of the statute. “Absent a direct constitutional challenge to the statutes, this Court's role is simply to interpret and apply the statutes as written and consistent with legislative intent.” Ford v. Sentry Cas. Co., 2012 MT 156, ¶ 68, 365 Mont. 405, 282 P.3d 687 (citing §§ 1–2–101, –102, MCA). We hold that, under the express terms of § 46–11–502(2), MCA, the State has the option of re-prosecuting defendants like Duncan whose convictions are set aside on postconviction relief.

¶ 11 It is “very clear from previous holdings of this court that a reversal of a judgment of conviction upon appeal and a retrial does not constitute double jeopardy.” Ellsworth, 141 Mont. at 81, 375 P.2d at 318. We have held, for example, that “after a verdict or a judgment of conviction or acquittal, the defendant in a criminal case has been in jeopardy and may not be tried again for the same offense, except in a case of a new trial which has been granted or ordered.” State v. Keerl, 33 Mont. 501, 516, 85 P. 862, 865–66 (1906) (emphasis added). When a defendant is granted a new trial on appeal, the “defendant is not placed in a new jeopardy by the second trial, but is merely...