Opinion
OP 19-0529
11-19-2019
Ryan Cody LAMB, Petitioner, v. ELEVENTH JUDICIAL DISTRICT COURT, FLATHEAD COUNTY, Honorable Robert B. Allison, Presiding, Respondents.
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
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 Jury to the jury. Neither party objected, and the court then brought in the jury, read the instruction, and dismissed them for the evening.
The model instruction provides:
The judicial process assigns tasks to the people involved in the case. It is the task of the witnesses to testify truthfully to the facts as they recall them. It is the task of the lawyers to prepare the case for final submission to the trier of the facts, the jury. It is the task of the Judge to preside, to instruct you as to the law, and to rule on whether certain evidence will be allowed at trial. It is the task of the jury to decide the case. You are not partisan nor are you advocates in this matter; you are neutral judges of the facts. It is you and you alone that can decide this cause. There is no reason to believe that any other 12 people would possess any more ability, intelligence, and courage to do the task assigned to a jury under the American system of justice.
The purpose of this instruction is to encourage you to collaborate with your fellow jurors in order to reach a just and fair verdict in this case. This instruction is not meant to coerce or to force a verdict. You should take as much time as needed in your deliberations.
You should not surrender your honest convictions in this matter for the mere purpose of returning a verdict or solely because of the opinion of other jurors. This does not mean, however, that you should avoid your task of rendering a verdict in this case.
This instruction is not more important than any other instruction I have previously given you. You should consider this instruction together with, and as part of, all the other instructions. Please return to your jury room and, again, diligently and earnestly resume your deliberations. Montana Criminal Jury Instruction No. 1-121 (2017).
¶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 inquire into the jury’s requests for information.
¶18 Whether to give additional instructions lies within the discretion of the trial court. State v. Hawkins , 165 Mont. 456, 460, 529 P.2d 1377, 1379 (1974). Here, Lamb argues the trial court was under the misapprehension that it could not provide additional instructions and a ruling made under mistake of law is an abuse of discretion. State v. Ziolkowski , 2014 MT 58, ¶ 11, 374 Mont. 162, 321 P.3d 816. Lamb points to statements the court made during discussion of the jury notes—including "I don’t think we can [offer] additional instructions relative to the evidence," and "But as far as giving [the jury] supplemental instructions, I don’t believe we’re able to do so,"—and argues this demonstrates the court erroneously concluded it was barred from giving supplemental instructions. The State argues, however, that the court did not erroneously believe it could not give supplemental instruction, but rather believed such instruction was not appropriate in this case, and that it was within the trial court’s discretion to reach that conclusion.
¶19 Thus, the question for this Court is how to interpret the District Court’s comments. In its order denying Lamb’s motion to dismiss, the District Court stated that it considered whether to supplement and acted within its discretion in choosing not to do so. Moreover, if a judge believes the instructions already given the jury are adequate, correctly state the law, and fully advise the jury on the procedures it is to follow in its deliberation, the refusal to answer a question already answered in the instruction is not error. Hawkins , 165 Mont. at 460, 529 P.2d at 1379. During settlement of instructions, defense counsel objected to several of the State’s proposed instructions and the court overruled the objections, noting that it believed these instructions fully and correctly stated the applicable law. Therefore, considering the court’s remarks in their context in the transcript, along with its Order Re Double Jeopardy, we do not believe the court was operating under an error of law when it determined not to give supplemental instructions to the jury. It therefore did not abuse its discretion in this instance.
¶20 Lamb next argues that defense counsel had inadequate opportunity to object. Lamb argues the court should have had discussion with counsel before bringing in the jury during the last meeting regarding the jury’s deliberations. Relying on the transcript, Lamb also points out that defense counsel was interrupted by the jury foreperson during this final discussion. Lamb points to Huertas , ¶ 25, where this Court found defense counsel’s opportunity to be heard regarding her client’s position on a potential mistrial was frustrated by repeated interruptions.
¶21 However, in Huertas , this Court first determined manifest necessity for declaring the mistrial did not exist. Huertas , ¶ 22. It then moved on to consider whether Huertas acquiesced in the trial’s termination, as he could still be retried if he had. Huertas , ¶ 23. It determined that he had not acquiesced because it was clear from the record that his counsel was unable to state Huertas’s position regarding the mistrial because of interruptions. Huertas , ¶ 25. Here, the question is one of manifest necessity, not of acquiescence. Furthermore, unlike in Huertas , the transcript indicates that Lamb’s trial counsel had opportunity; for example, when the court called for the jury to enter, Lamb’s counsel asked for clarification on what was to occur and the court addressed her concerns to her satisfaction prior to the jury’s arrival. We are unpersuaded by Lamb’s argument that his trial counsel did not object because she was silenced by interruptions, as the transcript does not support this interpretation. ¶22 Finally, we consider whether, as Lamb maintains, the trial court failed to properly inquire into the jury’s requests for information. In its order denying Lamb’s motion to dismiss, the District Court noted that the jury requested clarifications or definitions without specifying any particular instructions. It also noted defense counsel did not suggest that the court ask the jury for more specific information regarding its requests.
THE COURT: Okay. Bring them in.
MS. BACKUS: Are we going to talk about it on the record?
THE COURT: What’s that?
MS. BACKUS: Are we going to talk about it or give us an update on what we’re saying before we bring them in? We asked for --
THE COURT: They’re deadlocked. My intention was to bring them in, ask their foreperson to advise whether they thought additional time deliberating would result in breaking the deadlock, if the answer to that was in the negative I was of a mind to declare a mistrial and then schedule the matter for a new trial. I don’t know what else --
MS. BACKUS: I don’t know that we can do anything without more information from them, if any, or not.
THE COURT: Well, I can inquire about that.
MS. BACKUS: Thank you.
(Jury in.)
¶23 Under § 46-16-503(2), MCA, a trial court may provide the jury with requested information, in the discretion of the court, after consultation with the parties. Here, the court consulted with the parties as to each question presented during deliberations. Once it had done so, it was within the court’s discretion whether to provide additional information. As the court noted, Lamb’s counsel did not suggest the court inquire into the specific information the jury sought, although she had the opportunity to do so. As noted above, the court did not abuse its discretion in determining not to provide the jury with supplemental instructions. Given the foreperson’s statements that the jury was deadlocked and that the deadlock was not going to resolve without additional information, the court declared the mistrial out of manifest necessity.
In his petition for writ of supervisory control, Lamb’s counsel asserts that in reviewing the District Court record, he discovered the jury had written an additional note which had not been brought to the parties’ attention nor addressed by the trial court. However, he further notes that it is unclear when or how the court came into possession of the note, and he makes no argument regarding the potential impact of this note on the issues at hand in this writ.
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¶24 We conclude that the District Court acted within its discretion when it determined that manifest necessity existed. Because it properly declared a mistrial, the court is not proceeding under a mistake of law to proceed with Lamb’s retrial.
CONCLUSION
¶25 Lamb’s Petition for a Writ of Supervisory Control is DENIED.
¶26 The Clerk is directed to send a copy of this Opinion and Order to all counsel of record in this matter and in Eleventh Judicial District Court Cause No. DC-18-301 B, and to the Honorable Robert B. Allison, presiding District Judge.
We concur:
JIM RICE, J.
INGRID GUSTAFSON, J.
JAMES JEREMIAH SHEA, J.
DIRK M. SANDEFUR, J.