State v. Cline

• Decision Date: 18 January 1996
• Docket Number: No. 93-558,93-558
• Citation: 909 P.2d 1171,275 Mont. 46
• Parties: STATE of Montana, Plaintiff and Respondent, v. Shawn Matthew CLINE, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1171

909 P.2d 1171

275 Mont. 46

STATE of Montana, Plaintiff and Respondent, v. Shawn Matthew CLINE, Defendant and Appellant.

No. 93-558.

Supreme Court of Montana.

Submitted on Briefs Dec. 7, 1995.

Decided Jan. 18, 1996.

Herman A. Watson, III, Watson & Watson, Bozeman, for Appellant.

Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena, Mike Salvagni, Gallatin County Attorney, Marty Lambert, Deputy County Attorney, Bozeman, for Respondent.

ERDMANN, Justice.

Defendant Shawn Matthew Cline appeals from a jury verdict of the Eighteenth Judicial District Court, Gallatin County, finding him guilty of robbery, aggravated assault, and burglary. We reverse and remand.

The issues on appeal are as follows:

1. Did the District Court err in denying Cline's motion for a new trial based on newly discovered evidence?

2. Did the District Court err in admitting expert testimony concerning the age of Cline's fingerprint?

3. Did the District Court err in allowing testimony concerning the origin of tire tracks at the crime scene?

Our holding on Issue 1 is dispositive. As we are remanding to the District Court for a new trial, we address the evidentiary matters raised in Issues 2 and 3.

FACTS

At approximately 4:40 a.m. on the morning of October 12, 1992, Jim Storey went to the Kountry Korner Cafe west of Bozeman in order to prepare the cafe for opening. Storey is a local farmer-rancher who had been given the key to the cafe by the owner, Betty Nason in order to turn on the grills and make coffee prior to the cafe's 6:00 a.m. opening.

As Storey approached the back of the cafe, he noticed there was a hole in the door where the deadbolt had been. He heard an acetylene torch burning as he entered the cafe and saw an acetylene torch tank on a cart with hoses leading into the office. Storey tried to get into the office but could not open the door. He stepped back from the door and said "Get the hell out of there." A few seconds later a man came out of the office holding his hand in front of his lower face. Storey described the man as somewhat shorter than himself with long, dark brown hair. The man approached Storey, struck him on the head with a hammer and fled the scene.

When Storey regained consciousness he called 911. He was taken to a Bozeman hospital and later flown to Billings for treatment. Based on Storey's description of the assailant, Lieutenant Robert Christie of the Gallatin County Sheriff's Department assembled a photo line-up which he showed to Storey in the hospital. The line-up included a photo of the defendant, Shawn Matthew Cline. Storey covered the lower portion of each face and then identified Cline based on his hairstyle and eyes. At trial, Storey testified that Cline's hairstyle and build were similar to his assailant's, but he could not make a positive identification.

The sheriff's office was unable to obtain identifiable latent fingerprints from the crime scene. Nason discovered that the cash drawer had been damaged in the burglary and would not fit back into the cash register. She ordered a new cash drawer and removed the register and old drawer to a storage shed behind the cafe. When the new cash drawer arrived it did not have a money tray so Nason retrieved the tray from the old drawer. At that point she discovered an envelope underneath the money tray which had not been found by the sheriff's deputies. The envelope was used to keep deposits for pie tins when customers purchased pies. Using a magnetic powder, Christie was able to raise a latent fingerprint from inside the flap of the envelope. The print was that of Cline's right thumb.

When interviewed by Christie, Cline stated that he had previously washed dishes at the cafe but had not worked there in over a year. He indicated he had not been in the cafe for two or three months. He said he had never taken any money from customers and had never entered the till. He could think of no reason why his fingerprint would be on the envelope. Nason confirmed that Cline had washed dishes a few times at the cafe but that he had no reason to work the cash register or handle money, including that involved with the pie tin deposit envelope.

Cline contacted Christie after the initial interview and told him that he had given his sister-in-law, Roxanne Cline an envelope not long before the burglary. Roxanne worked at the cafe and Cline claimed this could explain the presence of his fingerprint on the envelope. Roxanne testified that Cline had never given her an envelope. Cline also claimed he had first learned of the burglary while stopping at a service station across the street from the cafe on the morning of the crime. The owner of the service station testified that he did not see or talk with Cline that morning.

On November 16, 1992, Cline was charged with robbery pursuant to § 45-5-401, MCA (1991), aggravated assault pursuant to § 45-5-202, MCA (1991), and burglary pursuant to § 45-6-204, MCA (1991). Cline relied on an alibi defense, claiming he had spent the early morning hours of October 11-12, 1992, with his wife, her brother, and a young friend.

Cline's first trial concluded on April 2, 1993, when the jury was unable to reach a verdict. On July 6, 1993, a second jury trial was commenced, and on July 12, 1993, the jury found Cline guilty on all three charges. On September 7, 1993, the District Court sentenced Cline to ten years imprisonment on each count to run concurrently, with three years suspended. The District Court added five years on each count to run consecutively for the use of a dangerous weapon.

On September 29, 1993, Cline filed a notice of appeal with this Court. On February 18, 1994, Cline filed a motion to stay the appeal and requested this Court to remand the case to the District Court for a determination as to whether he would be entitled to a new trial based on newly discovered evidence. In his motion, Cline alleged that a previously unknown witness had voluntarily come forward with information exculpating him (Cline) from the crimes. On March 15, 1994, we granted Cline's motion and remanded the case to the District Court for a hearing on the newly discovered evidence.

On July 8 and 12, 1994, the District Court conducted hearings on Cline's motion for discovery of the new evidence. On August 6, 1994, Cline filed a motion with the District Court for a new trial based on the newly discovered evidence. On September 8, 1994, the District Court conducted a hearing on the matter and on January 11, 1995, denied Cline's motion for a new trial. This appeal followed.

ISSUE 1

Did the District Court err in denying Cline's motion for a new trial based on newly discovered evidence?

Granting or denying a motion for a new trial is within the discretion of the district court. Section 46-16-702, MCA; State v. Gambrel (1990), 246 Mont. 84, 91, 803 P.2d 1071, 1076. In State v. Lewis (1978), 177 Mont. 474, 483, 582 P.2d 346, 351, we held that "[t]he matter of granting or refusing a new trial for newly discovered evidence rests largely in the discretion of the District Court." (Citing Butler v. Paradise Valley Irr. Dist. (1945), 117 Mont. 563, 160 P.2d 481). Based on the nature of the newly discovered evidence, we must determine whether the District Court abused its discretion in denying Cline's motion for a new trial. ¹

After Cline's conviction he became aware that another individual had allegedly admitted to committing the offenses for which he had been convicted. On February 18, 1994, Dwaine Cline, Cline's cousin who was serving a sentence for misdemeanor theft, filed a sworn affidavit indicating that James Leroy Smith, a convicted felon, had told him that he (Smith) had committed the Kountry Korner Cafe burglary, robbery and assault on October 12, 1992. Dwaine also stated in his affidavit that Sergeant Robert Campbell of the Gallatin County Sheriff's Department had told him that he had received information from a reliable source in Billings that Smith was the one who had broken into the Kountry Korner Cafe.

Campbell testified at the hearing in July 1994 that in October 1993 he had received information from a private detective, Charles Easterday, indicating that word was out that Smith was involved in the Kountry Korner Cafe crimes. Easterday told Campbell that his source for the information was Harold Lesh, an informant previously used by the Sheriff's Department. Lesh was unavailable to testify by the time the hearings were conducted in July and September 1994. Campbell testified that he had also received a second telephone call from an anonymous source at about the same time indicating that Smith was involved in the Kountry Korner Cafe robbery. Easterday testified at the hearing on the new trial motion that an unidentified customer of a Bozeman pawn shop told him that Smith had committed the crimes for which Cline had been convicted.

In summary, months after his conviction in July 1993, Cline uncovered four sources--Dwaine Cline, Campbell, Lesh, and Easterday--all providing information that Smith had committed the crimes for which Cline had been convicted and sentenced. Faced with this new evidence, Cline requested that this Court stay his appeal and filed a motion for discovery seeking details on the exculpatory information which Cline believed the authorities possessed. The county attorney responded in writing to Cline's request by stating "there is absolutely nothing exculpatory for your client...." The State's position was and still is that the newly discovered evidence merely suggests an additional suspect and does not exculpate Cline.

The District Court relied on our long-standing criteria set forth in State v. Greeno (1959), 135 Mont. 580, 342 P.2d 1052, to evaluate Cline's motion for a new trial based on the newly discovered evidence. The Greeno criteria are: (1) the evidence must have come to the knowledge of the defendant since trial; (2) it was not through want of diligence that...