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.

[291 P.3d 107]

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 [366 Mont. 445]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 acquittal

[291 P.3d 108]

by 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 [366 Mont. 446]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...