State v. Partin

• Decision Date: 30 December 1997
• Docket Number: No. 96-534,96-534
• Citation: 54 St.Rep. 1474,287 Mont. 12,951 P.2d 1002
• Parties: STATE of Montana, Plaintiff and Respondent, v. Wayne PARTIN, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1002

951 P.2d 1002

STATE of Montana, Plaintiff and Respondent, v. Wayne PARTIN, Defendant and Appellant.

No. 96-534.

Supreme Court of Montana.

Submitted on Briefs July 2, 1997.

Decided Dec. 30, 1997.

William F. Hooks, Appellate Defender, Helena, for Appellate.

Joseph P. Mazurek, Attorney General, Patricia Jordan, Assistant Attorney General, Helena, Dennis Paxinos County Attorney, Billings, for Respondent.

GRAY, Justice.

Wayne Partin (Partin) appeals from the judgment and commitment entered by the Thirteenth Judicial District Court, Yellowstone County, on a jury verdict finding him guilty of the felony offense of forgery. Specifically, he appeals from the District Court's denial of his motion for a mistrial following testimony which violated an order in limine. We reverse and remand for a new trial.

The issue on appeal is whether the District Court abused its discretion in denying Partin's motion for a mistrial.

BACKGROUND

The State of Montana (State) charged Partin with committing the offense of forgery by allegedly altering the payee line of a check to include his name, signing the back of the check, and cashing it. Prior to trial, Partin's counsel orally moved the District Court in limine to exclude expected testimony from the State regarding other crimes or acts based on the State's failure to provide Partin with a Just notice of intent to use such evidence. In particular, the motion sought to preclude any reference to the fact that certain handwriting samples were on file at the Billings Police Department due to a prior arrest of Partin. The State did not oppose the motion and, indeed, assured the District Court it did not intend to go into Partin's criminal history or record. The prosecutor also stated that she had spoken to Detective Dave Comfort, the State's handwriting expert, about avoiding any mention of Partin's prior arrest during his testimony comparing the writing on the check at issue to prior handwriting samples from Partin, and that she would stop him should he begin to verge into such "prior crimes" testimony. The District Court granted the motion in limine.

At trial, Ron Hill (Hill) testified that he had written, and mailed, the check at issue to AAA Drywall in September of 1995. He further testified that the payee line of the check had been altered to include "/W. Partin." He stated that, in response to notification by AAA Drywall that it had not received the check, he called the bank to stop payment on the check and was informed that the check had already been cashed.

The bank teller who cashed the check testified that she did not remember the transaction, but that her teller stamp on the check indicated she had cashed it on September 9, 1995. She also had written a social security number on the check, reflecting that she had seen some form of identification containing the customer's social security number and signature. According to the teller, the identification may have been, but was not necessarily, a driver's license.

After being qualified as an expert in handwriting analysis, Detective Comfort testified that he had compared both the added writing on the payee line and the signature on the back of the check with several handwriting samples provided by Partin, two of which had been admitted into evidence. The State then asked Detective Comfort to identify the source of other handwriting samples he had used for his analysis and he responded that they were fingerprint cards from Partin's previous arrest.

Defense counsel objected and moved for a mistrial on the grounds that Detective Comfort's statement regarding the prior arrest violated the District Court's grant of the motion in limine and constituted other crimes evidence. Out of the jury's presence, the State contended that evidence of a prior arrest was not, technically, other crimes evidence. The prosecutor urged that a cautionary instruction would correct any error because the jury "won't necessarily be biased against the defendant just by the fact [Detective Comfort] mentioned [Partin] was arrested in the past." The District Court expressed disappointment with Detective Comfort's testimony and ascribed it to nervousness. The court subsequently gave a cautionary instruction admonishing the jury to consider only the facts and not prior crimes allegedly committed, and that Detective Comfort should not have testified that there had been a prior arrest of Partin.

The trial continued and Detective Comfort ultimately opined that it was probable that Partin altered the front of the check. He also testified that it was highly probable that Partin endorsed the back of the check.

Partin then testified on his own behalf, denying that he altered the front, or signed the back, of the check. He testified that his roommate had stolen various items, including his wallet, from his house in August of 1995, and that his driver's license, and perhaps his social security card, were in the wallet. This theft was reported to the police.

The jury found Partin guilty of the offense of forgery, a felony, and the District Court subsequently sentenced him and entered judgment. Partin appeals from the denial of his motion for a mistrial.

STANDARDS REGARDING MISTRIAL MOTIONS

We recently clarified the standard to be applied by a district court in determining whether to grant a motion for a mistrial. Observing that we had not consistently stated that standard in earlier cases, we held that a district court should grant a motion for a mistrial "when there is either a demonstration of a manifest necessity, or where the defendant has been denied a fair and impartial trial." State v. Ford (1996), 278 Mont. 353, 359-60, 926 P.2d 245, 249; see also State v. Walker (1996), 280 Mont. 346, 352, 930 P.2d 60, 63-64; and State v. Romero (1996), 279 Mont. 58, 75, 926 P.2d 717, 728.

We have not previously determined when a district court should apply the manifest necessity standard as opposed to the denial of a fair and impartial trial standard. That subissue was addressed, however, in a special concurring opinion in Romero, 926 P.2d at 730 (Leaphart, J., concurring), in which three other justices joined.

Justice Leaphart noted, at the outset, that United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165, 165-66, was the source of the manifest necessity component of the standard and that, in Perez, the mistrial was declared by the court, not requested by the defendant. Romero, 926 P.2d at 730. He observed that, in United States v. Dinitz (1976), 424 U.S. 600, 606-607, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267, 273, the United States Supreme Court limited the application of the manifest necessity standard to situations where a court declares a mistrial without the consent of the defendant. The rationale for limiting application of the heightened manifest necessity standard is that double jeopardy implications arise in the context of a mistrial declared without the defendant's request or consent. Romero, 926 P.2d at 730-31.

In the context of a defendant's motion for a mistrial, however, Justice Leaphart relied on Oregon v. Kennedy (1982), 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416, in reasoning that double jeopardy considerations do not arise when a defendant has chosen to terminate the proceedings against him. Romero, 926 P.2d at 730-31. Thus, Justice Leaphart concluded that, where the defendant moves for a mistrial, the "motion should be granted where the ends of public justice so require or where the defendant will be denied a fair and impartial trial." Romero, 926 P.2d at 731. Other courts are in accord with Justice Leaphart's reasoning, applying the manifest necessity standard when the trial court declares a mistrial without the defendant's consent and the denial of a fair trial standard when the defendant moves for a mistrial. See, e.g., State v. Ardolino (1997), 1997 ME 141, 697 A.2d 73, 79; State v. Friel (Me.1985), 500 A.2d 631, 634; Smith v. State (1994), 263 Ga. 782, 439 S.E.2d 483, 485; Byrd v. State (1992), 262 Ga. 426, 420 S.E.2d 748, 749; State v. Sonen (S.D.1992), 492 N.W.2d 303, 306; State v. Delfs (S.D.1986), 396 N.W.2d 749, 751.

We adopt the rationale set forth in Justice Leaphart's special concurring opinion in Romero and conclude that the more stringent manifest necessity standard applies when a trial court considers declaring a mistrial without the defendant's request or consent. We further conclude that the denial of a fair and impartial trial standard applies when a trial court determines whether to grant a mistrial either moved for--or consented to--by the defendant. Thus, the fair and impartial trial standard applies to the District Court's ruling on Partin's motion for With regard to this Court's standard of review of a district court's ruling on a motion for a mistrial, the parties advance different positions based on two separate lines of authority. The State relies on recent language in Ford, 926 P.2d at 248-49 (citing State v. Greytak (1993), 262 Mont. 401, 404, 865 P.2d 1096, 1098)--reiterated in Walker, 930 P.2d at 63, and Romero, 926 P.2d at 728--that, in reviewing a trial court's ruling on a motion for a mistrial, we determine whether there is clear and convincing evidence that the court's ruling is erroneous. In contrast, Partin urges us to apply the standard of review set forth in State v. Seaman (1989), 236 Mont. 466, 475, 771 P.2d 950, 956 (citing State v. Scheffelman (1987), 225 Mont. 408, 411, 733 P.2d 348, 350), which is whether the district court abused its discretion in denying the motion. Thus, before addressing the merits of the present appeal, we must resolve the threshold issue of our standard of review.

a mistrial based on inadmissible testimony which violated the order in limine.

The problem with the Ford standard--whether there is clear and convincing evidence that the trial court's ruling is erroneous--is that clear and convincing evidence is an evidentiary standard. Indeed, we...