Lamb v. Eleventh Judicial Dist. Court

397 Mont. 541

452 P.3d 917

2019 MT 274

Ryan Cody LAMB, Petitioner,

v.ELEVENTH JUDICIAL DISTRICT COURT, FLATHEAD COUNTY, Honorable Robert B. Allison, Presiding, Respondents.

OP 19-0529

Supreme Court of Montana.

Submitted on Briefs: September 25, 2019

Decided: November 19, 2019

For Petitioner: Greg Rapkoch, Office of the State Public Defender, Kalispell, Montana

For Respondents: Alison Howard, Travis Ahner, Flathead County Attorney’s Office, Kalispell, Montana

Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana

Robert B Allison, Self-represented, Kalispell, Montana

OPINION AND ORDER

Justice Laurie McKinnon delivered the Opinion and Order of the Court.

¶1 Petitioner Ryan Cody Lamb seeks a writ of supervisory control directing the Eleventh Judicial District Court, Flathead County, to reverse its Order Re Double Jeopardy in its Cause No. DC-18-301 B. In that Order, the District Court denied Lamb’s motion to dismiss this matter with prejudice after Lamb argued that retrial would violate his right to avoid double jeopardy. The State of Montana has responded to Lamb’s petition for writ.

¶2 We consider the following issue:

Did the District Court err in denying Lamb’s motion to dismiss this matter on double-jeopardy grounds?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 The circumstances leading to Lamb’s petition came about during jury deliberations of his trial for deliberate homicide. About four hours after the jury received its instructions, the court, counsel for both parties, and Lamb convened outside the presence of the jury to confer regarding two questions a juror had posed in writing: "Is it possible to get a lesser charge?" and "If not guilty, is there still consequences?" After discussion, the court and parties agreed that the court would respond, "Your sole function is to determine whether the Defendant is guilty or not guilty of deliberate homicide." The jury was so instructed.

¶4 About an hour and a half later, the court, counsel for both parties, and Lamb reconvened outside the presence of the jury because the jury had sent out a note stating they were deadlocked. The court indicated that it intended to read the Standard Cautionary Instruction For Potentially Hung Jury¹ to the jury. Neither party objected, and the court then brought in the jury, read the instruction, and dismissed them for the evening.

¶5 The jury resumed deliberations at 9 a.m. the following morning. At 10:25 a.m., the court, counsel for both parties, and Lamb reconvened outside the presence of the jury to address a request sent out by the jury to see the test results of a swab sample. After discussion, the court informed the jury, "You are required to rely on the testimony as you recall it, and the exhibits with you in the jury room."

¶6 Three minutes later, the jury sent out another question: "Can we get transcripts of what Ryan Lamb said on [the] stand?" The court, counsel for both parties, and Lamb reconvened and after discussion, the court informed the jury, "A copy of the trial transcript has not been prepared and will not be during the course of your deliberations. You must rely on your recollection of the testimony presented at trial."

¶7 The jury resumed deliberations until approximately 4:15 p.m., when they sent a note stating, "After much deliberation we are still deadlocked." The court, counsel for both parties, and Lamb reconvened and the jury was brought into the courtroom. The court asked the jury foreperson to confirm the jury was deadlocked and he stated that it was. The following colloquy occurred:

THE COURT: Do you feel that additional time either tonight or next week could perhaps break the deadlock? Do you feel you’re making any progress?

JURY FOREPERSON: We have made progress. I feel at this point if we don’t have any -- I know you’ve given us the instructions, and how we are interpreting them I don’t see us going any farther. If we were able to have somebody come in there and tell us what that really means and what we’re supposed to do, we might be able to go again. With how we are reading that, I don’t see us making any progress other than what’s there. We are not lawyers, we are -- and so we do have some questions on some of the instructions. And we’ve read them a lot, and we tried to -- and we are just -- we are -- we made progress, but we are not there.

THE COURT: Do you feel that more time could result in you -- more time deliberating could result in you coming there?

JURY FOREPERSON: With the current instructions that we have and no further instruction, I don’t believe we’re going to go any farther.

THE COURT: Okay. And counsel, either side, care to – THE STATE: Your Honor, I don’t think there’s any additional instructions we can give at this time.

THE COURT: I don’t think we can [offer] additional instructions relative to the evidence.

JURY FOREPERSON: And the instructions that we are asking for aren’t, like -- we just want definition of the instructions that you’ve given us, to be honest with you.

THE COURT: ...[T]hose instructions, every time I read them in a jury trial, I think, gosh, who wrote these things? You know, some of them are pretty good, and some are not .... [U]nfortunately I think the instructions that we have are the instructions that we have. ...

JURY FOREPERSON: ... [W]e can’t get clarification on instructions?

THE COURT: Well, and to a large degree we hope jurors will apply their own common sense and life experiences, and I think that’s contained in the instructions somewhere.

JURY FOREPERSON: That’s where we’re at.

THE COURT: But as far as giving you supplemental instructions, I don’t believe we’re able to do so.

JURY FOREPERSON: ... I believe in what we’ve been given, and ... well, we are where we are, we’re not going to have a --

¶8 The court asked the jury for a numerical breakdown and the foreperson responded that it was eleven to one to acquit. The court then declared a mistrial.

¶9 Lamb later moved to dismiss, arguing that another trial would violate his right against double jeopardy. The District Court denied his motion, ruling it had declared the mistrial out of manifest necessity. It concluded, in part:

After approximately thirteen hours of deliberation over two days, and reports of deadlock on both days, and progress having been made between the two reports though not unanimity, and the foreperson not seeking supplemental jury instruction but rather clarification of unspecified existing question(s) arising from submitted jury instruction(s), and the Court of a mind that the submitted jury instructions comprised an adequate and thorough statement of the law of the case, this Court accepted the deadlock representation of the foreperson, concluded unanimity would not be reached with this jury, and therefore found it a necessity to declare a mistrial because the "jury [was] unable to agree upon a verdict." § 46-11-503(2)(b)(iv) MCA. It follows that a retrial is not barred. § 46-11-503(2) MCA.

¶10 This petition followed.

STANDARD OF REVIEW

¶11 We will exercise supervisory control over another court in limited circumstances: when urgency or emergency factors exist, making the normal appeal process inadequate; when the case involves purely legal questions; and when, applicable to Lamb’s argument here, "[t]he other court is proceeding under a mistake of law and is causing a gross injustice[.]" M. R. App. P. 14(3)(a). We have accepted supervisory control to consider a double jeopardy issue when a defendant seeks to bar retrial after the trial court has declared a mistrial. City of Billings ex rel. Huertas v. Billings Mun. Court , 2017 MT 261, ¶ 2, 389 Mont. 158, 404 P.3d 709. We accordingly proceed to consider the merits of Lamb’s claim.

DISCUSSION

¶12 Did the District Court err in denying Lamb’s motion to dismiss this matter on double-jeopardy grounds?

¶13 The Fifth Amendment to the United States Constitution and Article II, Section 25, of the Montana Constitution prohibit an individual from being twice put in jeopardy for the same offense. In a jury trial, jeopardy attaches when the jury is impaneled and sworn. State v. Carney , 219 Mont. 412, 417, 714 P.2d 532, 535 (1986) (citation omitted). It is undisputed that jeopardy had attached to Lamb’s case prior to the District Court’s declaration of mistrial.

¶14 A second criminal trial is barred unless there was a "manifest necessity" to terminate the trial, or the defendant acquiesced in the termination. Carney , 219 Mont. at 417, 714 P.2d at 535. Here, Lamb did not acquiesce. He therefore may be retried only if "manifest necessity" existed for the declaration of mistrial.

¶15 We review a district court’s declaration of a mistrial for abuse of discretion. "We will affirm a trial judge’s decision if he or she acted rationally and responsibly in declaring a mistrial." Huertas , ¶ 14 (citations omitted). We review for correctness a trial court’s denial of a defendant’s motion to dismiss criminal charges on double jeopardy grounds. Huertas , ¶ 15.

¶16 A court must exercise the power to discharge a jury with the greatest caution, under urgent circumstances, and for plain and obvious cases. Carney , 219 Mont. at 418, 714 P.2d at 535 (citations omitted). A mistrial is an exceptional remedy; remedial action short of a mistrial is preferred unless the ends of justice require otherwise. Where there are only technical errors or defects that do not affect the substantial rights of the defendant, a mistrial is inappropriate. Huertas , ¶ 19 (citations and quotations omitted).

¶17 In this case, Lamb sets forth three arguments that manifest necessity did not exist for the court to declare a mistrial. First, he argues manifest necessity did not exist when the District Court declared a mistrial because the court made an error of law in concluding that it could not give the jury supplemental instruction. Next, he argues the court did not allow defense counsel adequate opportunity to object. Finally, he argues the court failed to properly...