No. 85-622 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

PI-aintif f and Appellant, 

-vsVAN BUREN LASTER, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The, Honorable Diane Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Dorothy McCarter, Asst. Atty. General, Helena 

Harold Hanser, County Attorney, Billings, Montana 

Teresa M. O'Connor, Deputy County Attorney, Billings 

For Respondent : 

Robert L. Stephens, Jr., Billings, Montana 

Filed: 

Submitted on Briefs: July 31, 1986 

Decided: September 9, 1986 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Van Buren Laster was charged in the District Court, 

Thirteenth Judicial District, Yellowstone County, with one 

count of criminal sale of dangerous drugs, a felony, as 

specified in 45-9-101, MCA. In the course of the trial 

before a jury, during the presentation of the State's case, 

the District Court granted defendant's motion for a mistrial. 

In a memorandum subsequent to the grant of the mistrial, the 

District Court found that further prosecution of the 

defendant wou1.d result in double jeopard-y. On August 30, 

1985, the District Court granted defendant's motion to 

d-ismiss the cause with prejudice. The State appeals from the 

order of dismissal. 

We decide this case, as did the District Court, under 

federal law and federal precedents. In so considering the 

cause, we affirm the District Court. 

The double jeopardy clause of the fifth amendment to the 

federal Constitution protects a criminal defendant from 

repeated prosecutions for the same offense. United States v. 

Dinitz (1976), 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 

L.Ed.2d 267, 273. The double jeopardy clause protects a 

defendant in his "valued right to have his trial completed by 

a particular tribunal. . . . " Wade v. Hunter (1949), 336 

U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978. The 

criminal defendant's right to have his case finally decided 

by the jury first selected is not absolute. A court will 

lift the double jeopardy bar to a second trial where 

"manifest necessity" exists, as when a mistrial is declared 
by the judge following a lack of verdict by a hung jury. 

United States v. Perez (1824), 9 Wheat. 579, 580. 

Where, however, the defendant moves for a mistrial and 

the same is granted, the "manifest necessity" standard does 

not apply. United States v. Tateo (19641, 377 U.S. 463, 4671 

84 S.Ct. 1587, 1590, 12 L.Ed.2d 448, 451. There is again a 

narrow exception to this rule; where the defendant moves for 

mistrial but is goaded into doing so by the prosecutor's 

actions, the double jeopardy clause bars retrial even though 

defendant himself moved for the mistrial. United States v. 

Dinitz, supra. 

In Oregon v. Kennedy (1982), 456 U.S. 667, 679, 102 

S.Ct. 2083, 2091, 72 L.Ed.26 416, 426, the United States 

Supreme Court outlined the bounds of the narrow exception 

under federal law. The general rule was that a motion by a 

defendant for mistrial in effect waived his claim to double 

jeopardy : 

Because of the confusion which these varying 

statements of the standard in question ha.ve 

occasioned in other courts, we deem it best to 

acknowledge the confusion and its justifiability in 

the light of these statements from previous 

decisions. We do not by this opinion lay down a 

flat rule that where a defendant in a criminal 

trial successfully moves for a mistrial, he may not 

thereafter invoke the bar of double jeopardy 

against a second trial. But we do hold that the 

circumstances under which such a defendant may 

invoke the bar of double jeopardy in a second 

effort to try him are limited to those cases in 

which the conduct qivinq --- rise to the successf~ 

motion -- for a mistrial was - intended to provoke the 

defendent into moving -- for a mistrial. (Emphasis 

added. ) 

In determining the intent of the prosecutor in the case 

at bar, the District Court relied on the concurring opinion 

of Justice Powell that because "subjective" intent may often 

he unknowable, a court should rely primarily upon the 

objective facts and circumstances of the particular case. 
Oregon v. Kennedy, 456 U.S. at 679-80, 102 S.Ct. at 2092, 72 

L.Ed. 2d at 427 (Powell, J., concurring) . In considering the 

objective facts and circumstances of the case at bar, the 

District Court found "that the prosecutor did attempt to 

provoke this mistrial to afford the State a more favorable 

opportunity to convict by having an opportunity to charge the 

defendant with solicitation or sexual intercourse without 

consent. " 

As we noted, the charge against Laster in this case was 

that on October 7, 1984, he had committed a felony in the 

criminal sale of dangerous drugs. The information charging 

the defendant was supported by an affidavit of the deputy 

county attorney, stating Laster gave P.S., then aged 16, 

cocaine before engaging in sexual intercourse with her. The 

affidavit further recited that after she left the defendant, 

P.S. called her mother. She then went to the hospital for a 

rape exam and a blood test. The affidavit recites that her 

blood test was positive for cocaine. 

The information against the defendant was not filed 

until November 9, 1984. 

A urine sample was taken on the evening of October 7 

from P.S. and was analyzed by a laboratory technician at the 

hospital in Billings. 

A sample of her blood was also sent to the State Crime 

Lab. The hospital technician detected traces of a substance 

that may have been a cocaine derivative in the urine sample. 

That sample was apparently destroyed after the analysis was 

completed. The blood sample sent to the State Crime Lab 

which has more sensitive testing equipment, was not preserved 

in such a way that the presence or absence of cocaine could 

be established from that sample in that laboratory. 
On February 8, 1985, defendant's counsel filed a motion 

to dismiss on the ground that the urine sample was 

adulterated through the State's testing procedures and so 

there was no independent corroboration of the complainant's 

testimony. 

On February 20, 1985, the State, sensing from the 

laboratory report that its evidence was weak on whether 

cocaine was present, moved to amend the information to add an 

alternative count--criminal sale of imitation and dangerous 

drugs. 

At a hearing on the two motions on March 5, 1985, a 

defense expert testified that the hospital technician's test 

results were consistent with substances that are contained in 

many over-the-counter cold remedies, as well as cocaine, and 

that the presence of those substances produce a similar 

result in the type of test performed. After the hearing, the 

District Court denied the motion to amend the information, 

and denied the defendant's motion to exclude the laboratory 

result provided that the State established a chain of 

evidence up to the point of the laboratory examination. 

During the hearing, Laster was called to the stand. As 

to that portion of the hearing, the court found: 

During that hearing, the Defendant took the stand. 

On cross-examination, the prosecutor attempted to 

get the Defendant to admit that he is a pimp. 

During this line of questioning, defense counsel 

objected no less than fifteen, times. The final 

objection was on the grounds that the examination 

was improper and consisted of discovery on the part 

of the State. This objection was sustained. 

Before trial, the defendant filed a motion in limine 

regarding the foundation for the State's introduction of the 

urinalysis results and regarding hearsay evidence of other 

crimes. The District Court granted the motion on foundation 
to the extent that the State had to establish the chain of 

custody until the urine sample reached the lab technician. 

The court further granted the motion in limine as to evidence 

of other crimes to the extent that evidence of solicitation 

and prostitution were not part of the - res yestae and could 

not be introduced as part of the State's case-in-chief. No 

notice under State v. Just (1979), 184 Mont. 262, 273, 602 

P.2d 957, 963 had been given. (Under Just, if the State 

intends to produce evidence of other crimes at the trial of 

the defendant, the State must give notice of such intention 

prior to the trial.) 

On the morning of the trial, in chambers, Laster's 

counsel moved for an order in limine respecting conversations 

at which the defendant was not present between the 

defendant s brother, Edd-y Laster, and P. S . ' s sister, and 

P.S., relating to whether P.S. had agreed to go to Rockford, 

Illinois, with the defendant for the purpose of entering into 

prostitution. The court ruled that such proposed evidence 

was hearsay and would not be admissible unless defendant's 

counsel opened up the areas on cross-examination. 

When the State called its first witness, L.I., the 

prosecutor tried on two occasions to elicit testimony that 

either L.I. or P.S. were solicited "to go into another 

profession" than that of a high school student. On each 

occasion, the objection thereto was sustained. 

P.S. followed L.I. as the next witness. On at least 

three occasions, the District Court, upon objection, 

overruled the prosecutor's attempt to elicit testimony about 

conversations occurring when Van Buren Laster was not 

present. 
A second development during the examination of P.S. 

occurred when the prosecutor sought to characterize the 

sexual intercourse between P.S. and Laster as rape. For an 

understanding of that development, a statement of the facts 

is necessary. 

On the day of the incident, P.S. and her friend L.I. had 

gone to a shopping mall in Billings, Montana, for a few 

hours. They were picked up at the mall for a visit to the 

house occupied by P.S.'s sister Sheila and her consort, Eddy 

Laster, an admitted pimp. Eddy is the brother of the 

defendant here, Van Buren. At Sheila's house there were a 

number of people, including P. S., L. I., Sheila, Eddy Laster 

and other persons unidentified. Van Euren did not come to 

the house until later in the afternoon. 

After Van Buren arrived, P.S. went upstairs to her 

sister's bedroom and tried on some of her sister's clothes, 

changing out of the shorts she was then wearing and into an 

outfit described as a red top and gray pants. After she came 

down from the upstairs bedroom, she went in Van Buren's car, 

sitting in the middle of the front seat between Van Buren and 

Van Buren's brother, Eddy, to a motel location, where several 

women, evidentally prostitutes, were getting ready to go out 

for the evening. From this location, Van Buren and P.S. took 

a taxi to the Wooden Nickel Motel, where Van Buren checked 

in, under the alias of Steve Horton, while P.S. stood beside 

him as he checked in. 

In the motel room, P.S. said she watched television, 

while Van Buren busied himself around the premises. He gave 

her an alcohol drink which may have been vodka, two inches 

high in an ordinary motel drinking glass. She drank the 

vodka voluntarily, and reported no results. In the meantime, 
Van Buren got out a suitcase, and took from it some 

implements that were drug paraphernalia, including test tubes 

and a "bong." She testified that he took a white powdery 

substance out of his suitcase, heated the substance and made 

out two "lines" on a mirror. He snorted or sniffed one of 

the lines and offered the other to her. She described that 

he scraped off the remaining line with a razor and by holding 

the razor to her nose, she was able to snort the remainder. 

Following this, Van Buren took off his clothes. She stated 

that she undressed herself because she didn't want him to 

undress her, and apparently she got into bed with Van Buren, 

where they had sexual intercourse. Later she got up, got 

dressed, when two other persons appeared at the motel room 

for a time, a.nd they "snorted some more coke." 

Sometime in the late evening, Van Buren arranged for her 

to take a taxi from the motel to her sister's home. There 

she found one unidentified person and leaving him on an 

excuse, went a short distance to the War Bonnet Inn, where 

she called her mother. 

When her mother came, P.S. told her that she had been 

kidnaped by two blacks, forced to take cocaine and that she 

had been raped. Her mother immediately took her to the local 

hospital and a "rape kit" was formulated there including the 

urine sample which was later examined by the laboratory 

technician. 

P.S. later admitted that the story she told her mother 

was a hoax and that the same story she had told to the public 

officials and examining doctor was also a hoax. She later 

revamped her story to indicate that she had gone to the motel 

with Van Buren, and that there he had given her the cocaine 

as was described above. 
The cross-examination of P.S. by defendant's counsel was 

devastating. She admitted to changing her story of the 

events of the day and evening several times before the trial 

and during the trial. She was faced with other statements 

she had given to an examining physician following the 

incident, wherein she stated she had been forced to engage in 

both oral and rectal intercourse. On her cross-examination, 

she professed not to know what those terms meant. 

When the deputy county attorney got P.S. back for 

redirect examination, she proceeded to examine P.S. on the 

meanings and methods of committing oral and rectal 

intercourse. At this point, the District Court recessed the 

proceedings for the day and asked counsel to meet her in 

chambers. It was at that time that the District Court 

granted the motion for mistrial which had been made by the 

defendant's counsel earlier in the day and took under 

advisement the motion to dismiss the cause entirely. The 

District Court later entered the written order dismissing the 

cause which is the subject of this appeal. 

In reaching the decision that the prosecutor had 

attempted to provoke the defendant to move for a mistrial, 

the court made the following add.itiona1 findings: 

From these objective facts and circumstances, the 

[c] ourt must determine whether the prosecutor 

intended to provoke the final motion for a mistrial 

to afford the State a more favorable opportunity to 

convict this defendant. 

This was a case where the prosecutor was aware that 

the State had little evidence on the offense 

charged. There were test results indicating the 

presence of a substance which may have been 

cocaine. There was a testimony of one witness 

whose credibility could, and was, questioned. 

This is a case where the prosecutor attempted, 

through a series of overreaching questions, to 

shift the focus of the trial from a charge of the 
criminal sale of cocaine to the Defendant's status 

as a black pimp. 

The prosecutor cannot have been surprised at the 

defendant's motion, in light of the number of 

objections raised before and during the trial to 

this line of questioning. 

These questions were so prejudicial. that the 

defendant had little choice but to move for a 

mistrial to avoid a conviction for crimes with 

which he had not been charged. 

It is clear from the record that the prosecutor 

attempted to get into evidence, after the District Court had 

ruled such evidence inadmissible, that P.S. had been 

solicited by others to engage in prostitution in Rockford, 

Illinois. It is clear from the record that the prosecutor 

sought to characterize as a rape an act of sexual intercourse 

which P.S. had described as consensual in her testimony at 

trial and in her statements given to the police. 

It is further clear from the record that on redirect 

examination the prosecutor attempted to re-establish other 

sexual crimes purported to have been committed by Laster 

which P.S. had denied on her cross-examina.tion but which she 

had reported to officials or examining physicians prior to 

the trial. It was at this point that the District Court 

declared a recess of the trial and shortly thereafter granted 

the motion for mistrial. 

The State argues in brief that the Just test did not 

apply in this case, and that the evidence which the 

prosecutor sought to introduce was inseparably linked with 

the crime charged as part of the corpus delicti. See State 

v. Riley (1982), 199 Mont. 413, 649 P.2d 1273; State v. 

Gillham (Mont. 1983), 670 P.2d 544, 40 St.Rep. 1576; State v. 

Trombley (Elont. 1980), 620 P.2d 367, 37 St.Rep. 1871; and 

State v. Frates (1972), 160 Mont. 431, 503 P.2d 47. In 
short, the State continues to argue that the following 

evidence was all admissable to prove the sale of dangerous 

drugs: that the defendant was a pimp and had raped P.S. at 

the time he gave her cocaine; that the defendant and his 

brother were pimps; that in acquiring P.S. as one of his 

prostitutes, Laster plied her with alcohol and cocaine, 

anesthetizing her so as to have sexual intercourse with her 

with minimal resistance. Not explained by the State is why 

these crimes were not charged by information against the 

defendant. Solicitation for prostitution, engaging in 

prostitution, and rape, are as serious, if not more serious 

than a single instance of offering cocaine to a 16 year old, 

heinous enough in itself. 

The State's argument falls from its own weight. P.S. 

testified she had been "raped" by Van Buren Laster. The 

testimony by which the prosecutor sought to prove 

solicitation for prostitution was clearly hearsay outside of 

the presence of the defendant. The State's weak evidence 

that the substance was cocaine was probably irreparable. 

What the District Court could not finally accept was the 

State's effort to shore up its weak proof of the drug charge 

by attempting to produce evidence of other crimes which might 

prejudice the minds of the jurors. 

Moreover, the arguments of the State are beside the 

point. The question at issue here on appeal is whether the 

prosecutor intended to attempt to provoke a mistrial. Our 

duty on appeal is to determine whether that finding can be 

supported. This is the first instance where a finding of 

that nature has come to this Court since the decision in 

Oregon v. Kennedy (1982), 456 U.S. 667, 102 S.Ct. 2083, 72 

L.Ed.2d 416. 
Ordinarily, the standard of review to be applied to a 

finding of fact by a district court in a criminal case is 

whether the finding of the district court amounts to an abuse 

of its discretion. Thus, we will support a determination of 

a district court as to whether a motion to file an 

information is supported by probable cause unless there is an 

abuse of discretion. State v. Bradford (Mont. 1984), 683 

P.2d 924, 929, 41 St.Rep. 962, 967. A motion whether to 

grant or deny a motion to dismiss at the close of the State's 

case is within the sound discretion of the trial court and 

will not be disturbed unless an abuse of that discretion is 

shown. State v. Whitewater (Mont. 1981), 634 P.2d 636, 637, 

38 St.Rep. 1664, 1666. 

In State v. Counts (Mont. 1984), 679 P.2d 1245, 1248, 41 

St-Rep. 681, 686, we held that the ruling of the District 

Court on a motion for mistrial is not to be lightly 

disturbed. There we approved the holding of Schmoyer v. 

Bordeau (1966), 148 Mont. 340, 420 P.2d 316, that in order to 

overturn the court's ruling on a motion for mistrial, this 

Court must be shown the error of the trial court's ruling by 

evidence which is clear, convincing and practically free from 

doubt. In this case, with respect to the dismissal of the 

cause on grounds of double jeopardy, we adopt the usual 

standard that the State has the burden to show an abuse of 

discretion by the District Court. We find none. 

The judgment of the District Court is affirmed. 

We Concur: 
dg Ty Chief Justice