State v. Mallak, 02-205.

• Decision Date: 01 March 2005
• Docket Number: No. 02-205.,02-205.
• Citation: 326 Mont. 165,109 P.3d 209,2005 MT 49
• Parties: STATE of Montana, Plaintiff and Respondent, v. Sabah O. MALLAK, Defendant and Appellant.
• Court: Montana Supreme Court

109 P.3d 209

2005 MT 49

326 Mont. 165

STATE of Montana, Plaintiff and Respondent, v. Sabah O. MALLAK, Defendant and Appellant.

No. 02-205.

Supreme Court of Montana.

Submitted on Briefs November 20, 2003.

Decided March 1, 2005.

Rehearing Denied April 6, 2005.

Sabah O. Mallak, Appellant, Deer Lodge, Montana, pro se.

Honorable Mike McGrath, Attorney General; Jennifer Anders, Assistant Attorney General, Helena, Montana, Dennis Paxinos, County Attorney; Rod Souza, Deputy County Attorney, Billings, Montana, for Respondent.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Sabah O. Mallak appeals his convictions following his pleas of guilty to felony charges of burglary and witness tampering and to two misdemeanor charges of criminal contempt. We affirm.

¶ 2 We address the following issues on appeal ¶ 3 1. Did the District Court err in denying the Appellant's motion to dismiss the charges against him on double-jeopardy grounds?

¶ 4 2. Did the District Court err in denying the Appellant's motion to withdraw his guilty plea?

¶ 5 3. Did the District Court err in refusing to dismiss the charges against the Appellant on the grounds that exculpatory evidence was not preserved?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 The Appellant was charged by Information on November 8, 2000, with partner or family member assault (PFMA), a felony. The State alleged that on or about the night of November 2, 2000, the Appellant punched and kicked his girlfriend, Tracie Dewey (Tracie), causing her bodily injury or the reasonable apprehension of it. The State amended the Information several times, and at trial, the Appellant also faced the felony charges of burglary and witness tampering, a misdemeanor charge of resisting arrest, and two more misdemeanor charges of criminal contempt, all arising out of or directly related to the alleged assault.

¶ 7 On the first day of trial, April 23, 2001, the District Court granted the Appellant's outstanding motion to exclude evidence regarding his prior bad acts, specifically, instances of physical violence perpetrated by the Appellant against Tracie in the past. Before the following day's opening statements, the District Court denied the Appellant's motion to dismiss the PFMA and burglary charges for the State's failure to preserve what he characterized as exculpatory physical evidence — audiotape recordings of Tracie testifying falsely under oath in prior proceedings against the Appellant.

¶ 8 At trial, the Appellant sought to impeach Tracie's credibility on cross-examination by confronting her with these perjurious statements, which she admitted having made. The District Court perceived the potential in this line of questioning for violation of its order in limine which excluded evidence of the Appellant's having previously assaulted Tracie, and admonished the State in a side bar to exercise caution in rehabilitating its complaining witness on redirect:

THE COURT: ... I think [the State is] allowed to ask her why she lied, but I'm not going to allow any testimony about why you were afraid or anything like that. Leave it at that.

MR. SOUZA: I'm not going to go any further.

(Whereupon, the proceedings at the bench concluded.)

Q. (By Mr. Souza) You were interviewed by the public defender's office, Tracie?

A. Yes.

Q. And in that interview you told them that you lied?

A. Yes.

Q. Did you tell them why you lied?

A. Yes.

Q. Why don't you now tell the jury why you have previously lied in court.

A. Because I was scared of him. [Emphasis added.]

¶ 9 The Appellant objected at this point and moved for a mistrial on the grounds that the phrase italicized above implied that he had frightened Tracie by perpetrating bad acts. The District Court denied the motion, and the trial proceeded.

¶ 10 Deputy Sheriff Ron Wilson testified for the State later that same day. He brought the audiotape recording of a telephone call that the Appellant placed to Tracie on November 7, 2000, which was entered into evidence and played for the jury. Tracie was heard on the tape to say to the Appellant that he was "not going to get away with it this time" (emphasis added). After the jury left the courtroom, the Appellant again objected and moved for a mistrial on the grounds that the State had violated the order in limine. This time, the District Court granted the motion, and a new trial date was set.

¶ 11 Prior to the second trial, the Appellant moved to dismiss the case on double jeopardy grounds, claiming that the State had provoked him into moving for a mistrial. The District Court denied this motion. The parties then entered a plea bargain agreement, wherein Appellant agreed to plead guilty to witness tampering and to two counts of criminal contempt, and plead no contest to burglary. In exchange, the State dropped the original charge of PFMA.

¶ 12 Less than two months later, the Appellant moved for leave to withdraw from the plea agreement and go to trial on all the State's charges against him. The sole basis for his motion was his claim that certain prescription medications which he was taking when he entered his several pleas rendered him incapable of pleading intelligently and knowingly. After an evidentiary hearing on the matter, the District Court denied this motion and sentenced the Appellant on November 13, 2001. This appeal followed.¹

STANDARD OF REVIEW

¶ 13 The grant or denial of a motion to dismiss in a criminal case is a question of law which we review de novo on appeal. State v. Weldele, 2003 MT 117, ¶ 13, 315 Mont. 452, ¶ 13, 69 P.3d 1162, ¶ 13. Our standard of review is plenary, and we determine whether a district court's conclusion is correct. Weldele, ¶ 13.

¶ 14 Furthermore, a court's resolution of an issue involving a question of constitutional law is a conclusion of law which we also review to determine whether the conclusion is correct. City of Missoula v. Robertson, 2000 MT 52, ¶ 14, 298 Mont. 419, ¶ 14, 998 P.2d 144, ¶ 14.

¶ 15 We review a district court's denial of a defendant's motion to withdraw a guilty plea to determine whether the court abused its discretion. State v. Schaff, 1998 MT 104, ¶ 15, 288 Mont. 421, ¶ 15, 958 P.2d 682, ¶ 15; State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177. No categorical standard exists as to how a district court must address a request to withdraw a guilty plea; rather, each case must be considered in light of its unique record. Mallak v. State, 2002 MT 35, ¶ 16, 308 Mont. 314, ¶ 16, 42 P.3d 794, ¶ 16.

DISCUSSION

¶ 16 1. Did the District Court err in denying the Appellant's motion to dismiss the charges against him on double-jeopardy grounds?

¶ 17 The Appellant claims that the State goaded him into moving for a mistrial by purposely violating the District Court's order in limine, in both its redirect examination of Tracie and by introducing into evidence the audiotaped conversation between Tracie and the Appellant; that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution therefore barred the State from re-trying the Appellant on the same charges as those which he faced at his first trial; and that the District Court consequently erred in denying his motion to dismiss the indictment.

¶ 18 The Double Jeopardy Clause, made applicable to the States through the Due Process Clause of the Fourteenth Amendment, Benton v. Maryland (1969), 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, protects a criminal defendant from repeated prosecutions for the same offense. Oregon v. Kennedy (1982), 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416. The Double Jeopardy Clause protects a defendant in his or her "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, however. 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. Kennedy, 456 U.S. at 672,102 S.Ct. at 2087,72 L.Ed.2d at 422 (citations omitted). When a mistrial is granted on the defendant's motion in a criminal case, the "manifest necessity" standard does not apply, and the Double Jeopardy Clause ordinarily does not bar the State from trying him or her again on the same indictment. United States v. Tateo (1964), 377 U.S. 463, 467, 84 S.Ct. 1587, 1590, 12 L.Ed.2d 448, 451. There is again, though, a narrow exception to this rule:

Only where the governmental conduct in question is intended to "goad" the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.

Kennedy, 456 U.S. at 676, 102 S.Ct. at 2089, 72 L.Ed.2d at 425.

¶ 19 In a concurrence, Justice Powell proposed considering "the objective facts and circumstances of the particular case" in order to determine prosecutorial intent. Kennedy, 456 U.S. at 679-80, 102 S.Ct. at 2092, 72 L.Ed.2d at 427 (Powell, J., concurring). We proceeded accordingly in State v. Laster (1986), 223 Mont. 152, 724 P.2d 721.

¶ 20 As commentary has pointed out, the defendant whose mistrial motion is granted will succeed only with great difficulty in raising the Double Jeopardy Clause as a bar to further prosecution on the indictment:

In cases of mistrial, there must be a finding of "Machiavellian" design and a vision of future moves worthy of a chess master: first, the prosecutor's perception that the case has gone amiss in some unanticipated way, coupled with an assessment that if only the trial could start over things would improve; then, the decision to goad defense counsel into naively doing the prosecutor's concealed bidding by moving for the mistrial that the prosecutor secretly desires; followed by some feigned but half-hearted opposition to the defense counsel's motion; all the while hoping that the

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