State v. Santoro

417 Mont. 92

STATE OF MONTANA, Plaintiff and Appellee,

v.CHARLES GEOFFREY SANTORO, Defendant and Appellant.

No. DA 21-0585.

Submitted on Briefs March 20, 2024.

Decided July 2, 2024.

2024 MT 136.

417 Mont. 92.

__P.3d__.

Where defendant was convicted of negligent homicide, and where upon retrial his initial conviction was reversed, reversal and remand for another new trial was warranted because the second trial court’s exclusion of defendant’s Mont. R. Evid. 702 expert witness evidence regarding strangulation was an abuse of discretion that was not harmless as it prevented him from presenting evidence going to the core of his defense; defendant had sought to establish that strangulation did not always leave a mark, that it would be possible to speak while being strangled, and that strangulation could occur with low pressure on the neck and the ruling excluding expert testimony on this matter hindered defendant’s right to present a complete defense and the error was not harmless as there was a reasonable possibility that exclusion of this expert testimony contributed to the conviction.

Reversed and remanded.

JUSTICE RICE dissented.

For Appellant: Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena.

For Appellee: Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant

Attorney General, Helena; Merle Raph, Toole County Attorney, Michael J. Gee, Special Deputy County Attorney, Shelby.

JUSTICE GUSTAFSON delivered the Opinion of the Court.

¶1 Defendant and Appellant Charles Geoffrey Santoro (Santoro) appeals from the June 12, 2021 Opinion and Order Re: Cat Otway Testimony and the September 30, 2021 Amended Judgment issued by the Ninth Judicial District Court, Toole County. The District Court’s Amended Judgment, which sentenced Santoro to twenty years in prison, with a twenty-year parole restriction, followed Santoro’s conviction for negligent homicide upon retrial after this Court reversed his initial conviction on that charge due to ineffective assistance of counsel. State v. Santoro, 2019 MT 192, ¶ 21, 397 Mont. 19, 446 P.3d 1141 (Santoro I).

¶2 We address the following restated issues on appeal:

1. Whether the District Court abused its discretion by granting the State's motion in limine and precluding blind expert testimony regarding the effects of strangulation previously admitted at Santoro's first trial.

2. Whether the State's sentencing recommendation after retrial was vindictive.

3. Whether the District Court plainly erred by not providing Santoro the opportunity to make a statement at his sentencing hearing.

¶3 We reverse and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 The background of the incident leading to Santoro’s negligent homicide charge and details of his first trial were set forth in Santoro I and need not be repeated at great length here. See Santoro I, ¶¶ 4-10. On August 18, 2013, Santoro went to the VFW bar in Sunburst with Richard Potter. While there, Santoro encountered Levi Rowell, Levi’s wife Tiffany, and Levi’s friend Justin Gallup. Santoro and Levi knew each because Santoro previously worked for Levi and they were neighbors. Santoro and Levi had a couple of drinks together and participated in the banter of those at the bar. Eventually, Santoro made crude comments which upset the other patrons and he was asked to leave. While he and Potter were leaving, Santoro ranted about how none of the bar patrons were even veterans, to which Levi responded, "Neither are you, Geoff." This greatly upset Santoro, who kicked the door open and smashed his beer bottle on the ground while walking to his truck. Once back at his truck, Santoro grabbed his shotgun and cleared the chamber before putting the shotgun back.

¶5 Levi heard the bottle smash and attempted to leave to follow Santoro, believing Santoro had done something to Tiffany’s vehicle. Tiffany and Justin stopped Levi from leaving the bar by blocking the exit. After Tiffany thought sufficient time had passed, the three left the bar to check things out. Santoro and Potter had not left yet, and were sitting in Santoro’s truck parked next to Tiffany’s vehicle. Santoro was in the driver’s seat, Potter was in the passenger seat, and the truck was running. Levi approached Santoro’s truck, with Tiffany and Justin following behind him. Either Santoro’s driver’s door was open or Levi opened it, and Santoro and Levi began yelling at each other. Santoro testified that Levi grabbed him by the throat, choked him, and told him "Geoff, you’re fucked now." Potter testified that Levi "had his hand on Geoff’s neck." Santoro gassed his truck in reverse. Levi, Tiffany, and Justin were in the "V" created by Santoro’s open door when Santoro reversed. All three were caught by the door, with Tiffany and Justin knocked outward from the door and injured.¹ Levi was dragged and pulled under the truck where he was run over.

¶6 After he stopped reversing, Santoro drove forward and away from the bar. Sandra Owens, Tiffany, and J Scarbrough testified that Santoro ran over Levi driving forward. This eyewitness testimony was contradicted by the Montana Highway Patrol accident reconstruction report created by MHP Trooper Christopher Garza² after measuring and surveying the scene with MHP Sergeant Bob Bender. That reconstruction showed Levi was run over only once, while Santoro was going backwards, and then Santoro drove past, but not over, Levi’s body when leaving the scene. Trooper Garza testified to his report and its conclusions at Santoro’s 2021 retrial. Toole County Coroner Dan Whitted, who did not participate in MHP’s reconstruction, also testified he believed Levi was only run over one time, though he believed it was not in reverse but when Santoro drove forward. Santoro was charged with negligent homicide for causing Levi’s death.

¶7 Prior to Santoro’s first trial in 2016, the State filed a motion in limine seeking to prevent Santoro from presenting the expert testimony of Cat Otway at trial. Otway is a registered nurse and forensic nurse examiner whom Santoro wished to present blind expert testimony to inform the jury regarding strangulation and its effects on a person. After a hearing, the District Court reserved ruling on the State’s motion in limine because it believed it needed to "see what Ms. Otway knows about" and therefore a ruling would have to "wait until it comes up at trial." Otway thereafter testified as a blind expert at the first trial, where she was qualified "as an expert on the area of strangulation" without objection and the State vigorously cross-examined and recross-examined her testimony.

¶8 Santoro was convicted at trial in 2016. At sentencing, the State recommended Santoro receive a 20-year sentence for the negligent homicide charge, and was "not asking for a parole restriction[.]" The District Court sentenced Santoro to 20 years, with five years suspended, and did not impose a parole restriction. After Santoro appealed, this Court reversed his conviction and ordered a new trial due to ineffective assistance of counsel when his trial counsel did not serve a subpoena on or otherwise preserve Trooper Garza’s testimony and report—that Levi was run over only once, while Santoro was reversing—for trial, and therefore the jury never heard that evidence during the first trial. Santoro I, ¶¶ 20-21, 27.

¶9 Upon remand, the District Court judge who presided over the first trial, James A. Haynes, had retired. The District Court judge initially assigned to the case upon remand, Robert G. Olson, recused himself and a new District Court judge, Jennifer B. Lint, assumed jurisdiction of the case. Santoro once again noticed his intention to call Otway as a blind expert witness to educate the jury on strangulation, noting "Ms. Otway testified in the first trial and the State stipulated to her expertise on the limited area of strangulation." The State then filed a new motion in limine, once again seeking to prevent Santoro from presenting Otway’s expert testimony regarding strangulation. The State’s motion asserted Otway’s testimony regarding strangulation would not be helpful to the jury under M. R. Evid. 702, would not be relevant under Rule 401, and would violate Rules 403 and 704. The State took specific issue with some of Otway’s opinions regarding strangulation and its later effects on a person and also with her history of reviewing strangulation in a domestic violence context. Santoro filed a response noting Otway testified at the first trial and would testify similarly on retrial; that he had a constitutional right to present a complete defense; that he would not be asking Otway to make a legal conclusion regarding whether Levi’s actions towards Santoro constituted a "forcible felony" or to comment on the credibility of Santoro and Potter; and, presciently, that "disallowing the Defense to call its properly noticed expert witness seems to set this case up for another appeal."

¶10 The District Court held a hearing on the motion on April 1, 2021, at which Santoro was not present. The court heard argument on the motion from the State and Santoro’s counsel, and granted the State’s motion pursuant to Rule 702, noting the court did not "feel that this is an area where expert testimony is necessary when we have Mr. Santoro available if he wants to describe what happened to him as part of a justifiable use of force claim." The court further noted it would provide the parties with a written order. Because Santoro did not attend the April 1 hearing, the District Court heard argument on the motion again during the April 16, 2021 pretrial conference. The court again granted the State’s motion pursuant to Rule 702 "because what happened to Mr. Santoro is what happened to Mr. Santoro and his own description is the best" and therefore expert testimony from Otway regarding strangulation would be "unnecessary, and … unduly confusing." The District Court’s written order granting the State’s motion followed on June...