### NO. 93-558 INTHESUPREME

COURTOFTHE 1996 STATEOFMONTANA

STATEOFMONTANA,

Plaintiff andRespondent,
v. J/\~p.i 

### SHAWN MATTHEW

CLINE, /i';~pJl&

APPEALFROM: District Court of the Eighteenth Judicial District,

In andfor the County of Gallatin, TheHonorable ThomasA. Olson, Judge presiding.

COUNSELOFRECORD:

ForAppellant: HermanA. Watson, 

### III, Watson &Watson, Bozeman, Montana ForRespondent: Hon. Joseph P.Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena, Montana Mike Salvagni, Gallatin County Attorney, Marty Lambert, Deputy County Attorney, Bozeman,Montana

Filed: Submitted onBriefs: December 7, 1995 Decided: January 18, 1996

### Justice Charles E. Erdmanndelivered the opinion of the Court.

Defendant ShawnMatthew Cline appeals from ajury verdict of the Eighteenth Judicial District Court, Gallatin County, finding him guilty of robbery, aggravated assault, and burglary. We
reverse andremand. Theissues onappeal are asfollows: 1. Didthe District Court err indenying Cline's motion for
anewtrial basedonnewly discovered evidence? 2. Didthe District Court err inadmitting expert testimony concerning the ageof Cline's fingerprint? 3. Did the District Court err in allowing testimony concerning the origin of tire tracks at the crime scene? Ourholding onIssue 1isdispositive. Asweare remanding to the District Court for anewtrial, weaddress the evidentiary
matters 

### raised in Issues 2and3. FACTS Atapproximately 4:40 a.m. 

### onthe morning ofOctober 12, 1992, JimStorey went tothe Kountry Korner Cafewest of Bozemaninorder to prepare the cafe for opening. Storey is alocal farmer-rancher whohadbeengiven the keyto the cafe bytheowner, Betty Nasonin order to turn onthe grills andmakecoffee prior to the cafe's 6:00 a.m. opening. AsStorey approached the back of the cafe, henoticed there
wasahole in the door where the deadbolt hadbeen. Beheard an acetylene torch burning asheentered thecafe andsawanacetylene

2torch tank on acart with hoses leading into the office. Storey

tried to get into the office but could not open the door. He stepped back from the door and said "Get the hell out of there." Afew seconds later amancameout of the office holding his hand in front of his lower face. Storey described the manas somewhat shorter than himself with long, dark brown hair. The man approached Storey, struck him on the head with ahammer and fled the scene. When Storey regained consciousness he called 911. He was taken to a Bozeman hospital and later flown to Billings for treatment. Based on Storey's description of the assailant, Lieutenant Robert Christie of the Gallatin County Sheriff's Department assembled aphoto line-up which he showed to Storey in the hospital. The line-up included aphoto of the defendant, Shawn Matthew Cline. Storey covered the lower portion of each face and then identified Cline based onhis hairstyle and eyes. At trial, Storey testified that Cline's hairstyle and build were similar to his assailant's, but hecould not make apositive identification. The sheriff's office wasunable to obtain identifiable latent fingerprints from the crime scene. Nason discovered that the cash drawer hadbeen damaged in the burglary andwould not fit back into the cash register. She ordered anewcash drawer and removed the register and old drawer to astorage shed behind the cafe. When the new cash drawer arrived it did not have amoney tray so Nason retrieved the tray from the old drawer. At that point shediscovered anenvelope underneath the money tray which hadnot been

found by the sheriff's deputies. The envelope was used to keep deposits for pie tins when customers purchased pies. Using a magnetic powder, Christie was able to raise alatent fingerprint from inside the flap of the envelope. The print was that of Cline's right thumb. When interviewed by Christie, Cline stated that he had previously washed dishes at the cafe but had not worked there in
over ayear. Heindicated hehad not been in the cafe for two or three months. Hesaid hehadnever taken any money from customers and had never entered the till. Hecould think of no reason why his fingerprint would be on the envelope. Nason confirmed that Cline hadwashed dishes afew times at the cafe but that hehadno
reason to work the cash register or handle money, including that involved with the pie tin deposit envelope. Cline contacted Christie after the initial interview and told him that he hadgiven his sister-in-law, Roxanne Cline anenvelope not long before the burglary. Roxanne worked at the cafe and Cline claimed this could explain the presence of his fingerprint onthe envelope. Roxanne testified that Cline had never given her an envelope. Cline also claimed he had first learned of the burglary while stopping at aservice station across the street from the cafe
on the morning of the crime. The owner of the service station testified that hedid not see or talk with Cline that morning.OnNovember 16, 1992, Cline wascharged with robbery pursuant

to § 45-5-401, MCA (1991), aggravated assault pursuant to §45-5-202, MCA (1991), and burglary pursuant to 545-6-204, MCA (1991). Cline relied on an alibi defense, claiming he had spent the early morning hours of October 11-12, 1992, with his wife, her brother, and ayoung friend. Cline's first trial concluded onApril 2, 1993, when the jury
was unable to reach averdict. OnJuly 6, 1993, a second jury trial was commenced, and on July 12, 1993, the jury found Cline guilty on all three charges. OnSeptember 7, 1993, the District Court sentenced Cline to ten years imprisonment on each count to
run concurrently, with three years suspended. The District Court added five years oneach count to run consecutively for the use of
adangerous weapon. OnSeptember 29, 1993, Cline filed anotice of appeal with this Court. OnFebruary 18, 1994, Cline filed amotion to stay the appeal and requested this Court to remand the case to the District Court for adetermination as to whether hewould beentitled to a
newtrial based onnewly discovered evidence. Inhis motion, Cline alleged that a previously unknown witness had voluntarily come forward with information exculpating him (Cline) from the crimes. OnMarch 15, 1994, wegranted Cline's motion and remanded the case to the District Court for a hearing on the newly discovered evidence.

5

### OnJuly 8and12, 1994, the District Court conducted hearings

onCline's motion for discovery of the newevidence. OnAugust 6, 1994, Cline filed amotion with the District Court for anewtrial basedonthe newly discovered evidence. OnSeptember 8, 1994, the District Court conducted ahearing onthe matter andonJanuary 11, 1995, denied Cline's motion for anewtrial. This appeal followed. ISSUE1 Didthe District Court err indenying Cline's motion for anew trial basedonnewly discovered evidence? Granting or denying amotion for anewtrial is within the discretion of thedistrict court. Section 46-16-702, MCA;State v. Gambrel (1990), 246Mont. 84, 91, 803P.2d 1071, 1076. In State v. Lewis (1978), 177Mont. 474, 483, 582P.2d 346, 351, weheld that "[tlhe matter of granting or refusing a new trial for newly discovered evidence rests largely inthediscretion ofthe District Court." (Citing Butler v. Paradise Valley Irr. Dist. (1945), 117 Mont. 563, 160 P.2d 481). Based on the nature of the newly discovered evidence, wemustdetermine whether the District Court abused its discretion in denying Cline's motion for anewtria1.l

IIn view of our recent decision in State v. Gollehon (Mont. 1995), 52St. Rep. 1182, regarding the time requirements for filing motions for newtrial under §46-16-702, MCA,andour retention of two judicially created exceptions to that rule, it is appropriate that wepoint out that the issue of the timeliness of Cline's motion for newtrial wasneither raised in the District Court nor in this Court onappeal and, accordingly, wedecline to address that issue here. Moreover, our order staying Cline's appeal and remanding his motion to the District Court for consideration was entered well before our decision in Gollehon andwasconsistent with our decisional lawthen in effect. 6After Cline's conviction he became aware that another

individual had allegedly admitted to committing the offenses for which he had been convicted. OnFebruary 18, 1994, Dwaine Cline, Cline's cousin who was serving asentence for misdemeanor theft, filed a sworn affidavit indicating that James Leroy Smith, a convicted felon, had told him that he (Smith) had committed the Kountry Korner Cafe burglary, robbery and assault on October 12, 1992. Dwaine also stated in his affidavit that Sergeant Robert Campbell of the Gallatin County Sheriff's Department had told him that hehad received information from areliable source in Billings that Smith wasthe onewhohadbroken into the Kountry Korner Cafe. Campbell testified at the hearing in July 1994 that in October 1993 hehad received information from aprivate detective, Charles Easterday, indicating that word wasout that Smith was involved in the Kountry Korner Cafe crimes. Easterday told Campbell that his
source for the information wasHarold Lesh, aninformant previously used by the Sheriff's Department. Lesh was unavailable to testify bythe time the hearings were conducted in July andSeptember 1994. Campbell testified that he had also received a second telephone call from an anonymous source at about the same time indicating that Smith was involved in the Kountry Korner Cafe robbery. Easterday testified at the hearing onthe newtrial motion that an unidentified customer of aBozeman pawn shop told him that Smith had committed the crimes for which Cline had been convicted.

7In summary, months after his conviction in July 1993, Cline

uncovered four sources--Dwaine Cline, Campbell, Lesh, and Easterday--all providing information that Smith had committed the crimes for which Cline had been convicted and sentenced. Faced with this new evidence, Cline requested that this Court stay his appeal and filed amotion for discovery seeking details on the exculpatory information which Cline believed the authorities possessed. The county attorney responded in writing to Cline's request by stating "there is absolutely nothing exculpatory for your client

. . .'I The State's position was and still is that the newly discovered evidence merely suggests anadditional suspect and does not exculpate Cline. The District Court relied on our long-standing criteria set forth in State v. Green0 (19591, 135Mont. 580, 342 P.2d 1052, to evaluate Cline's motion for a new trial based on the newly discovered evidence. The Green0 criteria are: (1) the evidence must have come to the knowledge of the defendant since trial; (2) it was not through want of diligence that the evidence wasnot discovered earlier; (3) the evidence is somaterial that it would probably produce adifferent result upon another trial; (4) the evidence is not merely cumulative--that is, it does not speak asto facts in relation to which there was evidence at trial; (5) the motion for new trial must be supported by the affidavit of the witness whose evidence is alleged to have been newly discovered, or its absence accounted for; and (6) the evidence must not besuch as

8

### will only tend to impeach the character or credit of awitness.

All six criteria must bemetor the defendant's motion will fail. State v. Arlington (1994), 265Mont. 127, 149, 875P.2d 307, 320, (citing State v. Cyr (1987), 229Mont. 337, 340-41, 746P.2d 120, 122-23). TheDistrict Court determined that Cline's newly discovered evidence satisfied criteria 1, 2, and5, andthat criteria 6was not applicable. Thecourt concluded, however, that the evidence failed to meet the requirements of criteria 3and4. In evaluating criteria 3, the District Court determined that the proposed evidence wasnot somaterial that it would probably produce adifferent result at anewtrial. Thecourt noted that the anonymoustelephone call to Campbell andthe information from the unidentified manwhospokewith Easterday inthe pawnshopwas hearsay. Thecourt acknowledged that Smith's alleged confession of the crimes might beadmissible asaprior inconsistent statement under Rule 801(d) (1)(A), M.R.Evid., if hedenied suchanadmission at anewtrial. Nevertheless, the District Court determined that such testimony would merely present the jury with the task of determining and weighing the credibility of those who might testify. The court concluded that Dwaine was not a credible witness and that neither his testimony nor that of Smith and/or Leshwassomaterial that it would result in Cline's acquittal at anewtrial.In evaluating criteria 4, the District Court determined that

evidence indicating Smith committed the crimes would merely be cumulative evidence of Cline's denial of the charges. The court determined that Cline did not demonstrate that the new evidence "does not speak asto facts in relation to which there wasevidence at trial." (Citing Greeno, 342 P.2d at 1055.) Wedonot agree with the District Court's conclusion that the newly discovered evidence fails to satisfy criteria 3and 4of the Green0 test. The newevidence, discovered well after trial due to
no lack of due diligence onCline's part, is more than cumulative of what was presented to the jury. Smith's purported confession andthe other evidence which points to his commission of the crimes is newanddistinct from any evidence presented at trial. The new evidence tends to exculpate Cline and speaks to facts which were not evident at trial. While weagree with the District Court that essentially it mayboil downto aquestion of witness credibility, such adetermination should remain within the province of the jury and not the court. The jury in Cline's first trial could not reach a verdict based on the evidence presented. The jury in the second trial convicted Cline based on circumstantial evidence, except for Cline's fingerprint onthe deposit envelope, and despite the fact that Storey was unable to make apositive identification of the perpetrator. Subsequent to the second trial, Cline obtained newly discovered evidence material to his case and exculpatory in nature

10which the jury did not have the opportunity to consider in reaching

its verdict. The newly discovered evidence is somaterial that it would probably, albeit not necessarily, produce adifferent result at another trial. Wedetermine that the newly discovered evidence satisfies all six Green0 criteria, and therefore, weconclude that the District Court abused its discretion in denying Cline's motion for anew trial. Accordingly, wereverse the District Court on this issue and onthis basis remand the case to the District Court for anew trial. ISSUE 2 Did the District Court err in admitting expert testimony concerning the age of Cline's fingerprint? During the second trial, the District Court allowed Michael Wieners, aFBI fingerprint technician, to testify asto the age of Cline's fingerprint found onthe pie tin deposit envelope. Wieners testified that "I think this is afresh latent print probably about
a month or two old. But, again, there is leeway either way." Cline claims that because there is noreliable scientific procedure to evaluate the age of a fingerprint, Wieners' testimony significantly undermined his defense theory that the fingerprint
was laid prior to the break-in under innocuous circumstances unrelated to the break-in. Cline supports his position with an affidavit from Andre Moenssens, a law professor and consultant on fingerprint

11identification, whose opinion rebuts Weiners' testimony that it is

possible to determine the age of afingerprint. Cline, however, presented Moenssens' affidavit to the court after the trial in support of his motion for anewtrial. The District Court refused to consider the information contained in the affidavit by concluding that Cline could have discovered the information through due diligence before or during trial. In any event, Cline argues
on appeal that the prejudicial affect of Wieners' testimony outweighed the probative value of the information. Cline further argues that Wieners' testimony did not meet the criteria for the introduction of scientific evidence in criminal cases. The State acknowledges that this Court has adopted the standard set forth in Daubert v. Merrell DowPharmaceuticals, Inc. (19931, 113 S. Ct. 2786, 125 L. Ed. 2d469, in determining whether to allow expert testimony concerning novel scientific evidence. See State v. Weeks, (1995), 270 Mont. 63, 891 P.2d 477; State v. Moore (1994), 268 Mont. 20, 885 P.2d 457. However, the State correctly notes that Daubert was decided just prior to the commencement of Cline's second trial. This Court did not formally adopt the Daubert standard until Moore was decided in November 1994, over ayear after Cline was convicted. The State relies on State v. Walters (1991), 247 Mont. 84, 806 P.2d 497, and Barmeyer
v. Montana Power Co. (1983), 202 Mont. 185, 657 P.2d 594, for its argument that the District Court did not abuse its discretion in allowing Wieners' testimony.

12

### This Court has adopted the general rule that judicial

decisions are to be applied retroactively. McNeil v. Currie (1992), 253Mont. 9, 830P.2d 1241. It must also be noted that wedonot consider fingerprint evidence ingeneral to benovel scientific evidence. However, in the present casethe issue is whether it is possible to determine the ageof afingerprint utilizing magnetic powder. Weapply the Daubert standard tothis casebecauseweconsider fingerprint aging techniques in this context to be novel scientific evidence. Certainly all scientific expert testimony is not subject to the Daubert standard and the Daubert test should only be used to determine the admissibility of novel scientific evidence. Whenweadopted the Daubert test in Moore, wespecifically noted the continuing vitality of Barrneverasthat casepertained to the scientific evidence. InBarrneverweheld that "it is better to admit relevant scientific evidence in the samemanner as other expert testimony andallow its weight to be attacked by crossexamination andrefutation." Barmever, 657P.2d at 598 (quoting United States v. Bailer (4th Cir. 19751, 519F.Zd 463, 466, cert. denied, 423 U.S. 1019, 96 S. Ct. 456, 46 L. Ed. 2d 391). In Barmeyer, werejected the "general acceptance" test, holding that it was not in conformity with the spirit of the new rules of evidence. Barrnever, 657P.2d at 598. In Daubert, the United States SupremeCourt also rejected the "general acceptance" standard in favor of the more liberal test

13embodied in Rule 702, Fed.R.Evid. This test requires the trial

judge to determine whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine afact in issue. Moore, 885 P.2d at 470 (citing Daubert, 113 S. Ct. at 2796). Wenoted that Rule 702, Fed.R.Evid., still requires the district court to screen such evidence to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. Moore, 885 P.2d at 470. To guide the trial court's assessment of the reliability of the scientific evidence offered, weadopted in Moore the following four nonexclusive factors: (a) whether the theory or technique can be and has been tested; (b) whether the theory or technique has been subjected to peer review and publication; (c) the known or potential rate of error in using aparticular scientific technique and the existence and maintenance of standards controlling the technique's operation; and (d) whether the theory or technique has been generally accepted or rejected in the particular scientific field. Moore, 885 P.2d at 470-71 (citing Daubert, 113 S. Ct. at 2796-97). In adopting the Daubert test, we concluded that "before a trial court admits scientific expert testimony, there must be a preliminary showing that the expert's opinion is premised on a reliable methodology." Moore, 885P.2d at 471. Wenoted, however, that such an inquiry must remain flexible.

14"Not every error in the application of a particular

methodology should warrant exclusion. Analleged error in the application of a reliable methodology should provide the basis for exclusion of the opinion only if that error negates the basis for the reliability of the principle itself." Moore, 885P.2d at 471 (quoting United States v. Martinez (8th Cir. 1993), 3F.3d 1191, 1198). In this case, the State established the necessary foundation regarding the issue of determining the age of fingerprints. Wieners referenced and quoted anumber of scientific treatises on fingerprint technology. The treatises established that while the ageof alatent print cannot beestablished with complete accuracy, experienced examiners can proffer anopinion regarding the age of
a latent print based on the examiner's experience and investigation. The District Court, although not applying the Daubert criteria, correctly found that this was an area where experts could disagree, that the testimony would be subject to cross-examination, and that the credibility of the witnesses and the weight of their testimony should befor the jury to decide, not the court. Rulings on the admissibility of evidence are left to the sound discretion of the trial court. Moore, 885 P.2d at 471 (citing State v. Stewart (1992), 253Mont. 475, 479, 833 P.2d 1085, 1087). Weconclude that the District Court did not abuse its discretion in allowing Weiners' testimony regarding the ageof the fingerprint.

15ISSUE 3

Did the District Court err in 

### aliowing testimony concerning the origin of tire tracks at the crime scene? The determination of whether evidence is relevant and admissible is left to the sound discretion of the trial judge and will not be overturned absent a showing of abuse of discretion. State v. Gollehon (1993), 262Mont. 293, 301, 864 P.2d 1257, 1263. The State called Frank Kountz as a witness during trial. Kountz is the general manager of agarbage collection company which provided service to the Kountry Korner Cafe during October 1992. Kountz testified that his company uses twin axle garbage trucks which leave dual tire tracks onboth sides of the vehicle. Kountz also testified ondirect examination that his company serviced the cafe on Mondays and Fridays. The prosecutor asked no further questions of Kountz. Oncross-examination, Cline asked Kountz specifically about the morning of October 12, 1992. Kountz testified that hewasnot personally present when the truck made its stop and that he was relying onacompany route sheet which had not been offered into evidence. Cline then objected to Kountz's testimony as being hearsay and requested the court to strike the testimony. The objection was overruled. Onappeal, Cline contends that the District Court committed reversible error by admitting Kountz's testimony. Cline claims Kountz did not have personal knowledge as to whether garbage was

16hauled away from the cafe on the morning of October 12, 1992, nor

did he have alegitimate business record confirming such astop. Cline argues that the State intended to use Kountz's testimony in its closing argument to showthat the dual tire tracks found at the crime scene were those of the garbage truck, thus refuting Cline's argument that someone other than himself with access to avehicle with dual tire tracks had committed the crime. The State counters that it did not present any evidence concerning the tire tracks found at the crime scene or make any reference to the tire tracks in its closing argument. The State points out that the only other mention of the dual tire tracks came
on Cline's cross-examination of Christie who admitted that photographs of the tire tracks had not been compared to the garbage truck and that the tracks could have been made by the person who burglarized the cafe. The State argues that Cline may not predicate aclaim of error onthe admission of testimony which he himself elicited. Since this case is being remanded for anew trial on newly discovered evidence grounds, it is somewhat speculative as to whether the tire track issue will arise in the
newtrial. Nevertheless, since both parties briefed the issue and since it may arise in any new trial wewill briefly address the issue.Since Cline himself elicited the alleged hearsay testimony, we conclude that he cannot argue on appeal that its admission constitutes reversible error. Furthermore, our review of the

17record fails to indicate any relationship between the alleged

hearsay testimony and any element of the offenses for which Cline
was convicted. We have stated that "I[olnly if there was a reasonable possibility that inadmissible evidence might have contributed to the conviction is there reversible error."' State
v. Earl (19901, 242 Mont. 279, 283, 790 P.2d 464, 466 (quoting State v. Brush (1987), 228 Mont. 247, 251, 741 P.2d 1333, 1335). Wetherefore conclude that even if the admission of the testimony
was error, it was harmless error. In conclusion, wenote that Cline also appealed the District Court's denial of his motion for adirected verdict made at the closing of the State's case-in-chief. Asweare remanding the case back to the District Court for anewtrial, wedetermine this issue to be moot. Weconclude the District Court abused its discretion in denying Cline's motion for anewtrial based onnewly discovered evidence. Weremand this case to the District Court for further proceedings consistent with this opinion.

aa Justice
Weconcur:

18Justices /

19