NO. 93-558 

IN THE SUPREME COURT OF THE 

1996 

STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

J/\~p.i SHAWN MATTHEW CLINE, 

/ i'; ~pJl& 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Herman A. Watson, III, Watson & Watson, 

Bozeman, Montana 

For Respondent: 

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 on Briefs: December 7, 1995 

Decided: January 18, 1996 
Justice Charles E. Erdmann delivered the opinion of the Court. 

Defendant Shawn Matthew Cline appeals from a jury verdict of 

the Eighteenth Judicial District Court, Gallatin County, finding 

him guilty of robbery, aggravated assault, and burglary. We 

reverse and remand. 

The issues on appeal are as follows: 

1. Did the District Court err in denying Cline's motion for 

a new trial based on newly discovered evidence? 

2. Did the District Court err in admitting expert testimony 

concerning the age of Cline's fingerprint? 

3. Did the District Court err in allowing testimony 

concerning the origin of tire tracks at the crime scene? 

Our holding on Issue 1 is dispositive. As we are remanding to 

the District Court for a new trial, we address the evidentiary 

matters raised in Issues 2 and 3. 

FACTS 

At approximately 4:40 a.m. on the morning of October 12, 1992, 

Jim Storey went to the Kountry Korner Cafe west of Bozeman in order 

to prepare the cafe for opening. Storey is a local farmer-rancher 

who had been given the key to the cafe by the owner, Betty Nason in 

order to turn on the grills and make coffee prior to the cafe's 

6:00 a.m. opening. 

As Storey approached the back of the cafe, he noticed there 

was a hole in the door where the deadbolt had been. Be heard an 

acetylene torch burning as he entered the cafe and saw an acetylene 

2 
torch tank on a cart 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." 

A few seconds later a man came out of the office holding his hand 

in front of his lower face. Storey described the man as somewhat 

shorter than himself with long, dark brown hair. The man 

approached Storey, struck him on the head with a hammer 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 a photo line-up which he showed to Storey in 

the hospital. The line-up included a photo of the defendant, Shawn 

Matthew Cline. Storey covered the lower portion of each face and 

then identified Cline based on his hairstyle and eyes. At trial, 

Storey testified that Cline's hairstyle and build were similar to 

his assailant's, but he could not make a positive identification. 

The sheriff's office was unable to obtain identifiable latent 

fingerprints from the crime scene. Nason discovered that the cash 

drawer had been damaged in the burglary and would not fit back into 

the cash register. She ordered a new cash drawer and removed the 

register and old drawer to a storage shed behind the cafe. When 

the new cash drawer arrived it did not have a money tray so Nason 

retrieved the tray from the old drawer. At that point she 
discovered an envelope underneath the money tray which had not 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 a latent 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 a year. He indicated he had not been in the cafe for two or 

three months. He said he had never taken any money from customers 

and had never entered the till. He could think of no reason why 

his fingerprint would be on the envelope. Nason confirmed that 

Cline had washed dishes a few times at the cafe but that he had no 

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 had given his sister-in-law, Roxanne Cline an envelope 

not long before the burglary. Roxanne worked at the cafe and Cline 

claimed this could explain the presence of his fingerprint on the 

envelope. Roxanne testified that Cline had never given her an 

envelope. Cline also claimed he had first learned of the burglary 

while stopping at a service station across the street from the cafe 

on the morning of the crime. The owner of the service station 

testified that he did not see or talk with Cline that morning. 
On November 16, 1992, Cline was charged with robbery pursuant 

to § 45-5-401, MCA (1991), aggravated assault pursuant to 

§ 45-5-202, MCA (1991), and burglary pursuant to 5 45-6-204, 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 a young friend. 

Cline's first trial concluded on April 2, 1993, when the jury 

was unable to reach a verdict. On July 6, 1993, a second jury 

trial was commenced, and on July 12, 1993, the jury found Cline 

guilty on all three charges. On September 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 on each count to run consecutively for the use of 

a dangerous weapon. 

On September 29, 1993, Cline filed a notice of appeal with 

this Court. On February 18, 1994, Cline filed a motion to stay the 

appeal and requested this Court to remand the case to the District 

Court for a determination as to whether he would be entitled to a 

new trial based on newly discovered evidence. In his motion, Cline 

alleged that a previously unknown witness had voluntarily come 

forward with information exculpating him (Cline) from the crimes. 

On March 15, 1994, we granted Cline's motion and remanded the case 

to the District Court for a hearing on the newly discovered 

evidence. 

5 
On July 8 and 12, 1994, the District Court conducted hearings 

on Cline's motion for discovery of the new evidence. On August 6, 

1994, Cline filed a motion with the District Court for a new trial 

based on the newly discovered evidence. On September 8, 1994, the 

District Court conducted a hearing on the matter and on January 11, 

1995, denied Cline's motion for a new trial. This appeal followed. 

ISSUE 1 

Did the District Court err in denying Cline's motion for a new 

trial based on newly discovered evidence? 

Granting or denying a motion for a new trial is within the 

discretion of the district court. Section 46-16-702, MCA; State v. 

Gambrel (1990), 246 Mont. 84, 91, 803 P.2d 1071, 1076. In State v. 

Lewis (1978), 177 Mont. 474, 483, 582 P.2d 346, 351, we held that 

"[tlhe matter of granting or refusing a new trial for newly 

discovered evidence rests largely in the discretion of the 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, we must determine whether the District Court 

abused its discretion in denying Cline's motion for a new tria1.l 

IIn view of our recent decision in State v. Gollehon (Mont. 

1995), 52 St. Rep. 1182, regarding the time requirements for filing 

motions for new trial under § 46-16-702, MCA, and our retention of 

two judicially created exceptions to that rule, it is appropriate 

that we point out that the issue of the timeliness of Cline's 

motion for new trial was neither raised in the District Court nor 

in this Court on appeal and, accordingly, we decline 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 and was consistent 

with our decisional law then in effect. 

6 
After Cline's conviction he became aware that another 

individual had allegedly admitted to committing the offenses for 

which he had been convicted. On February 18, 1994, Dwaine Cline, 

Cline's cousin who was serving a sentence 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 he had received information from a reliable source in Billings 

that Smith was the one who had broken into the Kountry Korner Cafe. 

Campbell testified at the hearing in July 1994 that in October 

1993 he had received information from a private detective, Charles 

Easterday, indicating that word was out that Smith was involved in 

the Kountry Korner Cafe crimes. Easterday told Campbell that his 

source for the information was Harold Lesh, an informant previously 

used by the Sheriff's Department. Lesh was unavailable to testify 

by the time the hearings were conducted in July and September 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 on the new trial motion that an 

unidentified customer of a Bozeman pawn shop told him that Smith 

had committed the crimes for which Cline had been convicted. 

7 
In 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 a motion 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 an additional suspect 

and does not exculpate Cline. 

The District Court relied on our long-standing criteria set 

forth in State v. Green0 (19591, 135 Mont. 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 was not 

discovered earlier; (3) the evidence is so material that it would 

probably produce a different result upon another trial; (4) the 

evidence is not merely cumulative--that is, it does not speak as to 

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 be such as 

8 
will only tend to impeach the character or credit of a witness. 

All six criteria must be met or the defendant's motion will fail. 

State v. Arlington (1994), 265 Mont. 127, 149, 875 P.2d 307, 320, 

(citing State v. Cyr (1987), 229 Mont. 337, 340-41, 746 P.2d 120, 

122-23). 

The District Court determined that Cline's newly discovered 

evidence satisfied criteria 1, 2, and 5, and that criteria 6 was 

not applicable. The court concluded, however, that the evidence 

failed to meet the requirements of criteria 3 and 4. 

In evaluating criteria 3, the District Court determined that 

the proposed evidence was not so material that it would probably 

produce a different result at a new trial. The court noted that 

the anonymous telephone call to Campbell and the information from 

the unidentified man who spoke with Easterday in the pawn shop was 

hearsay. The court acknowledged that Smith's alleged confession of 

the crimes might be admissible as a prior inconsistent statement 

under Rule 801(d) (1) (A), M.R.Evid., if he denied such an admission 

at a new trial. 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 

Lesh was so material that it would result in Cline's acquittal at 

a new trial. 
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 as to facts in relation to which there was evidence 

at trial." (Citing Greeno, 342 P.2d at 1055.) 

We do not agree with the District Court's conclusion that the 

newly discovered evidence fails to satisfy criteria 3 and 4 of the 

Green0 test. The new evidence, discovered well after trial due to 

no lack of due diligence on Cline's part, is more than cumulative 

of what was presented to the jury. Smith's purported confession 

and the other evidence which points to his commission of the crimes 

is new and distinct from any evidence presented at trial. The new 

evidence tends to exculpate Cline and speaks to facts which were 

not evident at trial. While we agree with the District Court that 

essentially it may boil down to a question of witness credibility, 

such a determination 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 on the deposit envelope, and despite the fact 

that Storey was unable to make a positive identification of the 

perpetrator. Subsequent to the second trial, Cline obtained newly 

discovered evidence material to his case and exculpatory in nature 

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

its verdict. The newly discovered evidence is so material that it 

would probably, albeit not necessarily, produce a different result 

at another trial. 

We determine that the newly discovered evidence satisfies all 

six Green0 criteria, and therefore, we conclude that the District 

Court abused its discretion in denying Cline's motion for a new 

trial. Accordingly, we reverse the District Court on this issue 

and on this basis remand the case to the District Court for a new 

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, a FBI fingerprint technician, to testify as to the age of 

Cline's fingerprint found on the pie tin deposit envelope. Wieners 

testified that "I think this is a fresh latent print probably about 

a month or two old. But, again, there is leeway either way." 

Cline claims that because there is no reliable 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 

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

possible to determine the age of a fingerprint. Cline, however, 

presented Moenssens' affidavit to the court after the trial in 

support of his motion for a new trial. 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 Dow Pharmaceuticals, Inc. 

(19931, 113 S. Ct. 2786, 125 L. Ed. 2d 469, 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 a year 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), 253 Mont. 9, 830 P.2d 1241. 

It must also be noted that we do not consider fingerprint 

evidence in general to be novel scientific evidence. However, in 

the present case the issue is whether it is possible to determine 

the age of a fingerprint utilizing magnetic powder. We apply the 

Daubert standard to this case because we consider 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. 

When we adopted the Daubert test in Moore, we specifically 

noted the continuing vitality of Barrnever as that case pertained to 

the scientific evidence. In Barrnever we held that "it is better to 

admit relevant scientific evidence in the same manner as other 

expert testimony and allow its weight to be attacked by crossexamination and refutation." Barmever, 657 P.2d at 598 (quoting 

United States v. Bailer (4th Cir. 19751, 519 F.Zd 463, 466, cert. 

denied, 423 U.S. 1019, 96 S. Ct. 456, 46 L. Ed. 2d 391). In 

Barmeyer, we rejected the "general acceptance" test, holding that 

it was not in conformity with the spirit of the new rules of 

evidence. Barrnever, 657 P.2d at 598. 

In Daubert, the United States Supreme Court also rejected the 

"general acceptance" standard in favor of the more liberal test 

13 
embodied 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 a fact in issue. Moore, 885 P.2d at 470 

(citing Daubert, 113 S. Ct. at 2796). We noted 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, we adopted 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 a particular 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, 885 P.2d at 471. We noted, however, 

that such an inquiry must remain flexible. 

14 
"Not every error in the application of a particular 

methodology should warrant exclusion. An alleged 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, 885 P.2d at 471 (quoting United States v. Martinez (8th Cir. 

1993), 3 F.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 a number of scientific treatises on 

fingerprint technology. The treatises established that while the 

age of a latent print cannot be established with complete accuracy, 

experienced examiners can proffer an opinion 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 be for 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), 253 Mont. 475, 479, 833 P.2d 1085, 

1087). We conclude that the District Court did not abuse its 

discretion in allowing Weiners' testimony regarding the age of the 

fingerprint. 

15 
ISSUE 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), 262 Mont. 293, 301, 864 P.2d 1257, 1263. 

The State called Frank Kountz as a witness during trial. 

Kountz is the general manager of a garbage 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 on both sides of the vehicle. Kountz 

also testified on direct examination that his company serviced the 

cafe on Mondays and Fridays. The prosecutor asked no further 

questions of Kountz. 

On cross-examination, Cline asked Kountz specifically about 

the morning of October 12, 1992. Kountz testified that he was not 

personally present when the truck made its stop and that he was 

relying on a company 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. 

On appeal, 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 

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

did he have a legitimate business record confirming such a stop. 

Cline argues that the State intended to use Kountz's testimony in 

its closing argument to show that 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 a vehicle 

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 a claim of error on the admission of testimony which he 

himself elicited. Since this case is being remanded for a new 

trial on newly discovered evidence grounds, it is somewhat 

speculative as to whether the tire track issue will arise in the 

new trial. Nevertheless, since both parties briefed the issue and 

since it may arise in any new trial we will 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 

17 
record 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). 

We therefore conclude that even if the admission of the testimony 

was error, it was harmless error. 

In conclusion, we note that Cline also appealed the District 

Court's denial of his motion for a directed verdict made at the 

closing of the State's case-in-chief. As we are remanding the case 

back to the District Court for a new trial, we determine this issue 

to be moot. We conclude the District Court abused its discretion 

in denying Cline's motion for a new trial based on newly discovered 

evidence. We remand this case to the District Court for further 

proceedings consistent with this opinion. 

aa 

Justice 

We concur: 

18 
Justices / 

19