State v. Laster

• Decision Date: 09 September 1986
• Docket Number: No. 85-622,85-622
• Citation: 223 Mont. 152,724 P.2d 721
• Parties: STATE of Montana, Plaintiff and Appellant, v. Van Buren LASTER, Defendant and Respondent.
• Court: Montana Supreme Court

Page 721

724 P.2d 721

223 Mont. 152

STATE of Montana, Plaintiff and Appellant, v. Van Buren LASTER, Defendant and Respondent.

No. 85-622.

Supreme Court of Montana.

Submitted on Briefs July 31, 1986.

Decided Sept. 9, 1986.

Mike Greely, Atty. Gen., Dorothy McCarter, Asst. Atty. Gen., Helena, Harold Hanser, Co. Atty., Teresa M. O'Connor, Deputy Co. Atty., Billings, for plaintiff and appellant.

Robert L. Stephens, Jr., Billings, for defendant and respondent.

SHEEHY, Justice.

Van Buren Laster was charged in the District Court, Thirteenth Judicial District, Yellowstone County, with one count of criminal sale of dangerous drugs, a felony, as specified in Sec. 45-9-101, MCA. In the course of the trial before a jury, during the presentation of the State's case, the District Court granted defendant's motion for a mistrial. In a memorandum subsequent to the grant of the mistrial, the District Court found that further prosecution of the defendant would result in double jeopardy. On August 30, 1985, the District Court granted defendant's motion to dismiss the cause with prejudice. The State appeals from the order of dismissal.

We decide this case, as did the District Court, under federal law and federal precedents. In so considering the cause, we affirm the District Court.

The double jeopardy clause of the fifth amendment to the federal Constitution protects a criminal defendant from repeated prosecutions for the same offense. United States v. Dinitz (1976), 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267, 273. The double jeopardy clause protects a defendant in his "valued right to have his trial completed by a particular tribunal...." Wade v. Hunter (1949), 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978. The criminal defendant's right to have his case finally decided by the jury first selected is not absolute. A court will lift the double jeopardy bar to a second trial where "manifest necessity" exists, as when a mistrial is declared by the judge following a lack of verdict by a hung jury. United States v. Perez (1824), 9 Wheat. 579, 580, 6 L.Ed. 165.

Where, however, the defendant moves for a mistrial and the same is granted, the "manifest necessity" standard does not apply. United States v. Tateo (1964), 377 U.S. 463, 467, 84 S.Ct. 1587, 1590, 12 L.Ed.2d 448, 451. There is again a narrow exception to this rule; where the defendant moves for mistrial but is goaded into doing so by the prosecutor's actions, the double jeopardy clause bars retrial even though defendant himself moved for the mistrial. United States v. Dinitz, supra.

In Oregon v. Kennedy (1982), 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416, 426, the United States Supreme Court outlined the bounds of the narrow exception under federal law. The general rule was that a motion by a defendant for mistrial in effect waived his claim to double jeopardy:

Because of the confusion which these varying statements of the standard in question have occasioned in other courts, we deem it best to acknowledge the confusion and its justifiability in the light of these statements from previous decisions. We do not by this opinion lay down a flat rule that where a defendant in a criminal trial successfully moves for a mistrial, he may not thereafter invoke the bar of double jeopardy against a second trial. But we do hold that the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial. (Emphasis added.)

In determining the intent of the prosecutor in the case at bar, the District Court relied on the concurring opinion of Justice Powell that because "subjective" intent may often be unknowable, a court should rely primarily upon the objective facts and circumstances of the particular case. Oregon v. Kennedy, 456 U.S. at 679-80, 102 S.Ct. at 2092, 72 L.Ed.2d at 427 (Powell, J., concurring). In considering the objective facts and circumstances of the case at bar, the District Court found "that the prosecutor did attempt to provoke this mistrial to afford the State a more favorable opportunity to convict by having an opportunity to charge the defendant with solicitation or sexual intercourse without consent."

As we noted, the charge against Laster in this case was that on October 7, 1984, he had committed a felony in the criminal sale of dangerous drugs. The information charging the defendant was supported by an affidavit of the deputy county attorney, stating Laster gave P.S., then aged 16, cocaine before engaging in sexual intercourse with her. The affidavit further recited that after she left the defendant, P.S. called her mother. She then went to the hospital for a rape exam and a blood test. The affidavit recites that her blood test was positive for cocaine.

The information against the defendant was not filed until November 9, 1984.

A urine sample was taken on the evening of October 7 from P.S. and was analyzed by a laboratory technician at the hospital in Billings.

A sample of her blood was also sent to the State Crime Lab. The hospital technician detected traces of a substance that may have been a cocaine derivative in the urine sample. That sample was apparently destroyed after the analysis was completed. The blood sample sent to the State Crime Lab which has more sensitive testing equipment, was not preserved in such a way that the presence or absence of cocaine could be established from that sample in that laboratory.

On February 8, 1985, defendant's counsel filed a motion to dismiss on the ground that the urine sample was adulterated through the State's testing procedures and so there was no independent corroboration of the complainant's testimony.

On February 20, 1985, the State, sensing from the laboratory report that its evidence was weak on whether cocaine was present, moved to amend the information to add an alternative count--criminal sale of imitation and dangerous drugs.

At a hearing on the two motions on March 5, 1985, a defense expert testified that the hospital technician's test results were consistent with substances that are contained in many over-the-counter cold remedies, as well as cocaine, and that the presence of those substances produce a similar result in the type of test performed. After the hearing, the District Court denied the motion to amend the information, and denied the defendant's motion to exclude the laboratory result provided that the State established a chain of evidence up to the point of the laboratory examination.

During the hearing, Laster was called to the stand. As to that portion of the hearing, the court found:

During that hearing, the Defendant took the stand. On cross-examination, the prosecutor attempted to get the Defendant to admit that he is a pimp. During this line of questioning, defense counsel objected no less than fifteen times. The final objection was on the grounds that the examination was improper and consisted of discovery on the part of the State. This objection was sustained.

Before trial, the defendant filed a motion in limine regarding the foundation for the State's introduction of the urinalysis results and regarding hearsay evidence of other crimes. The District Court granted the motion on foundation to the extent that the State had to establish the chain of custody until the urine sample reached the lab technician. The court further granted the motion in limine as to evidence of other crimes to the extent that evidence of solicitation and prostitution were not part of the res gestae and could not be introduced as part of the State's case-in-chief. No notice under State v. Just (1979), 184 Mont. 262, 273, 602 P.2d 957, 963 had been given. (Under Just, if the State intends to produce evidence of other crimes at the trial of the defendant, the State must give notice of such intention prior to the trial.)

On the morning of the trial, in chambers, Laster's counsel moved for an order in limine respecting conversations at which the defendant was not present between the defendant's brother, Eddy Laster, and P.S.'s sister, and P.S., relating to whether P.S. had agreed to go to Rockford, Illinois, with the defendant for the purpose of entering into prostitution. The court ruled that such proposed evidence was hearsay and would not be admissible unless defendant's counsel opened up the areas on cross-examination.

When the State called its first witness, L.I., the prosecutor tried on two occasions to elicit testimony that either L.I. or P.S. were solicited "to go into another profession" than that of a high school student. On each occasion, the objection thereto was sustained.

P.S. followed L.I. as the next witness. On at least three occasions, the District Court, upon objection, overruled the prosecutor's attempt to elicit testimony about conversations occurring when Van Buren Laster was not present.

A second development during the examination of P.S. occurred when the prosecutor sought to characterize the sexual intercourse between P.S. and Laster as rape. For an understanding of that development, a statement of the facts is necessary.

On the day of the incident, P.S. and her friend L.I. had gone to a shopping mall in Billings, Montana, for a few hours. They were picked up at the mall for a visit to the house occupied by P.S.'s sister Sheila and her consort, Eddy Laster, an admitted pimp. Eddy is the brother of the defendant here, Van Buren. At Sheila's house there were a number of people, including P.S., L.I., Sheila, Eddy Laster and other persons unidentified. Van Buren did not come to the house until later in the afternoon.

After Van Buren arrived, P.S. went upstairs to her sister's bedroom and tried on some of her sister's clothes, changing out of the shorts she was then wearing and into an outfit described as a red top and gray pants. Afte...