NO. 87-155

INTHE SUPREME COURTOF THE STATE OFMONTANA
1988

STATE OF MONTANA, Plaintiffand Appellant,

-vs-,

KENNETH N. MORAN,
Defendantand Respondent.

APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County ofGallatin, Honorable Byron L. Robb,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant:
HonorableMike Greely,Attorney General, Helena,Montana Robert F. W. Smith, AssistantAttorney General Mike Salvagni,CountyAttorney, Bozeman,Montana Marty Lambert,Deputy County Attorney

ForRespondent:

LeAnne Schraudner,Lilly,Andriolo and Schraudner; Bozeman, Montana Richard Nellen, Bozeman, Montana

Submitted: January 15, 1988 Decided: April 21, 1988

ClerkMr. Justice Fred J. Weber delivered the Opinion of the Court.

The State of Montana appeals an order granting dismissal of four criminal charges against the defendant in the Eighteenth Judicial District, Gallatin County. We reverse and remand for trial. The issue iswhether theDistrict Court committed error by granting defendant'smotion to dismiss. In May, 1986,Mr. Moran was charged with the crime of forgery by accountability or in the alternative, conspiracy to commit forgery. Later that month he was charged with two counts ofwitness tampering. The two cases were consolidated by the DistrictCourt, and trialbegan on September 22, 1986. The jurywas empaneled and sworn on that day, and the prosecution presented six witnesses. This was defense counsel's first felony criminal trialbefore a jury. On the morning of the second day of trial, before any more testimony was offered,the trial judge on his ownmotion declared amistrial. The basis for this actionwas the court's belief that defendant was being denied effective assistance of counsel and that manifest necessity required mistrial. The defense raised no objection to mistrial, although the State did object. The court scheduled thematter for retrial in November 1986. As the parties prepared for retrial, the original trial judge was substituted. The substitute judge then ordered briefs on the issue of retrial and double jeopardy, pursuant to defendant's motion to dismiss. Subsequently, this substitute judgegranted the motion. Did the District Court commit error by granting defendant's motion todismiss? We accord greatdeference to the trial judge's findings and conclusions when the judge heard the witnesses andobserved their demeanor. Similarly,we accord deference to the trial judge's judgment as to competence of counsel when the judge heard and observed his performance as criminal defense counsel,both in chambersand in the courtroom during voir dire and trial. The substitute judge likewise should accord deference to the original trial judge on these matters. The substitute judge in effect reversed the trial judge,having reviewed only sevenpages of a trial transcript whichwhen complete contains 221 pages ofvoir dire, testimony, and in-chambers discussions. For these reasons, the substitute judge's order of dismissal will not receive the same deferenceas the actionby the trial judge. We now consider whether the trial judge abused his discretion in finding manifest necessity for mistrial. The trial judge's action wasmotivated by his concern for defendant's constitutional right to effective assistance of counsel. Because the decision to order mistrial was made to protect defendant's constitutional interests, that decision will receive a high degree of deference on review. See United Statesv. Sanders (9thCir. 1979), 591 F.2d 1293, 1297

(stating "A trial judge's decision to declare a mistrial because of possible juror bias is also deserving of great deference.") ; see also FJright v. United States 

### (D.c. 1976)

## , 365 A.2d 365. The defendant's interest in effective assistance of counsel,however,must be considered in light ofhis Fifth Amendment right not to be placed twice in jeopardy. Jeopardy attaches when the jury is empaneled and sworn. State v. Carney (Mont. 1986), 714 P.2d 532, 535, 43 St.Rep. 54, 58. In this case, jeopardyhad attached. The constitutional protection against double jeopardy bars a second criminal trial "unless there was a 'manifest necessity' to terminate the trial or defendant acquiesced in the terminatjon." Carney, 714 P.2d at 535.

### If the trial judge exercised sound discretion, if he acted rationally and responsibly,his order ofmistrial will be affirmed. Arizona v. Washington (1978), 434 U.S. 497, 514, 98 S.Ct. 824, 54 L.Ed.2d 717. Upon review, "[tlhe record must support the explicit or implicit finding of manifest necessity.

### " United States v. Jarvis (9th Cir. 1986), 792F.2d 767, 769. Our review of the record convinces

us that the trial judge acted responsibly, exercising sound discretion when he found manifest necessity for a 

### mistrial. The trial judge concluded that counselwas too inexperienced to defend a major felony charge involving conspiracy and accountability theories. One examplewas the failure of defense counselto object to the admission of State's exhibit 38 which was the foundation for an alleged admission or confession of the defendant. Exhibit 38 was offered in evidence through adeputy sheriff. Exhibit 38was a "rights" card,which contained a Miranda statementof the defendant's right against self-incriminationand his right to assistance of counsel. This particular form provided a line for the defendant's signature ifhe made a signed waiver. Thedefendanthere had not signed that line. The formalsoprovided a space where the deputy could write down the answer of the defendantwhen he was asked "Doyouwant to use any of these rights before we ask you questions?" The officer testified that he had not filled out that blank and that he could not explain why he had failed to get either the defendant's signature for awritten waiver or why he failed to record an oral waiver. Defense counsel did not make any objection at thatpoint. Notwithstanding the absenceof an objection,the trial courtcalled counsel into chambersand afforded defense counsel an opportunity to object to the admission of evidence. The court inquired as to the testimony which was going to come in and was advised as to the nature of the

### confession type evidence. At thatpoint, even though counsel for the defense had still failed tomake any objection, the court refused the testimony on the grounds that the officer failed toproperly obtain an oral waiver of rights. The following day, before the commencement of trial, the court made the following ruling:

Let the record showwe're outside thepresence of the jury. After some agonizing thought on this matter,gentlemen

# -- let the record show the Defendant is present, represented by [counsel]. Mr. Lambert is present. I am regretfully concluding that [defense counsel] does nothave the sufficient experienceto try this case,and that is no reflection on you

# . . . . I

### was in a similar situation when I was in your shoes, but the constitution requires that the Defendantbe guaranteed effective assistance of counsel, and I'm going to conclude that he does not have that,and I'm going to grant on my own motion amistrial and I'm going to find that manifest necessity dictates that matter be retried and that thebars ofdouble jeopardydonot prevent a retrial.

Counsel for the defendant argues that the record reflects that the defendant voluntarily and intelligently waived his rights prior to the confession. They cite State



### v. Blakney (1982), 641 P.2d 1045, 197Mont. 131, where this Court pointed out that the existence of a valid waiver depends ineach case upon theparticular factsand circumstances, including the background, experience and conduct of the accused and other appropriate considerations including the age,educationand intelligenceof the accused and his capacity to understand thewarnings and the consequencesofwaiving those rights. In addition this Court pointed out that a valid waiver must include an actual relinquishment of the benefits as evidenced by the actions or statements of the accused. Therecord contains substantial evidenceto support the conclusion of the District Court that the State had

### failed to properly obtain an oral waiver of rights so that the defendant'sadmission or confessionwas not admissible in evidence. We conclude that the trial judge acted rationally, carefully considering theproblems of thedifficult situation with which he was confronted. There is substantial evidence from which to conclude that counsel's performance had been ineffective. There is substantial evidence to support the conclusion that highly prejudicial evidence would have been admitted for the lack of a proper objection if the trial judge had not stepped in. We conclude that the trial court exercised sound discretion. Because mistrial is an extreme remedy, a trial judge should carefully consideralternatives. No reasonable alternatives were suggested in this case. A 

### continuance until a
newdefense counselwas familiarizedwith the case would have resulted in an unnecessary delay, Cautionary instructions would not have been adequate. No reasonable alternatives

were presented. Defense counsel argues that the trial court should have considered the tactics of counsel for the defendant. Having concluded that the failure to object to the rights card and the admission testimonywas highly prejudicial to the defendant, there remains no question of trial tactics. Counsel failed to object to the admission ofdamaging evidence in the absence of a proper foundation. We conclude that the trial judge was in the best position to judge the performance of counsel and the effect of the evidence, and the record supports his judgment. 

### By this opinion we do not intend a criticism of the defense counsel. The record demonstrates that he applied himself diligently in the performance of his duties, but that he had insufficientexperience to recognize the extent of his duties.

### The argument is made that we should apply the two-pronged Strickland test to the trial court's determination. The second prong of that test requires the defendant to show that thedeficientperformance prejudiced the defense and that the errorswere so serious as to deprive the defendant of a fair trial. That test was established for the review of actions taken in the course of a completed trial. There is no way of showing in the present case whether the conduct deprived the defendant of a fair trial because a mistrial was declared. We conclude that the Strickland test is not applicable. As previously stated,we conclude that the standard upon review of a decision to order mistrial is whether the trial court exercised sound discretion. We conclude that the trial judge exercised sound discretion when he found manifest necessity for mistrial. We also conclude that there was no basis for reversal by the subsequent trial judge who granted the dismissal of all charges against the defendant. We reverse the order dismissing the charges on grounds ofdouble jeopardyand remand the c

We Concur:

- -...-...a-----. ---- 

### Justices 7Mr. JusticeWilliam E. Hunt, Sr., dissenting:

The majority today provides the means by which the defendant may be tried twice for the same offense. Accordingly, Idissent. In its opinion, the majority holds that the substitute judge should not be accorded the same deference upon review

as isnormally accorded trial courtsbecause it reviewed only

a partial transcript of the proceedings. It then proceeded to discuss only one incident that was an "example" of counsel's inexperience, namely failing to object to an improperly filled out rights cards. It was the partial transcript of this incident that the substitute judge reviewed along with the parties' briefs and District Court record, and it was this incident which the substitute judge found was not manifest necessity for a mistrial. Although themajority has reviewed the whole record, itdoes not point to any other example of "ineffectiveness"and confines itself to a discussion of the very incident the substitute judge reviewed. It is clear tome that the substitute judge should have been given more deference by the majority than he was. Declaring a mistrial is an extreme measure which should be used with great caution. State

### v. Carney (Mont. 1986)

## , 714 P.2d 532, 535, 43 St.Rep. 54, 59. Reviewing courts must be satisfied that the trial court exercised sound discretion in declaring amistrial. Arizonav. Washington (1978),434U.S. 497, 514, 98 S.Ct. 824, 835, 54 L.Ed.2d 717, 733. The majority has discussed only one instanceof defense counsel's possible "inadequacy." The trial court cited no particular incident that prompted its action, nor has the majority explained any other event that showed inadequaterepresentation other than the one also reviewed by the substitute judge. It seems to me that the substitute judge balanced the defendant's constitutional interest with the public's interest in prosecution and, not surprisingly,came out in favor of the Constitution. Montana has adopted and refined the two-pronged test for ineffective assistance of counsel set out by the United States Supreme Court in Strickland v. Washington (1984),466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. 

## See, State v. Robbins (Mont. 1985), 708 P.2d 227, 42 St.Rep. 1440. he Strickland test is as follows: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioningas the 'counsel1guaranteed the defendant by the Sixth Amendment. Second, the defendantmust show that the deficientperformance prejudiced thedefense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentenceresulted froma breakdown in the adversary process that renders the resultunreliable. Strickland, 466U.S. at 687. In Robbins, this Court stated that a counsel's assistance is constitutionally effective if he or she acts "'within the range of competence demanded of attorneys in criminal cases.'" Robbins, 708 P.2d at 231, quoting State

### v. Rose (1980), 187 Mont. 74, 86, 608 P.2d 1074, 1081. If an attorney's conduct fails this first step them it must be shown that the error resulted in prejudice and "'stemmed from neglect or ignorance rather than from informed professional deliberation.'" Robbins, 708 P.2d at 231, quoting State 

### v. Morigeau (1982), 202 Mont. 36, 44, 656 P.2d 1851 189- Robbins concerned the defendant's claim that his attorney --had, inter alia, failed to make a motion to suppress some properly seized evidence, namely stolen guns. This Court discovered nothing in the record that supported any of the defendant's claims. In fact, the failure tomake the above motion was sound professional judgment considering there were no irregularities in Robbins' arrest or in the seizure of the evidence. Robbins, 708 P.2d at 232. Of particular interest is the recentdecision of State v. Probert (Mont. 1986), 719 P.2d 783, 43 St.Rep. 988, in which the court held that although counsel's failure to object to hearsaywas error, it

was notprejudicial. The Court also recognizedthat "[tlhere is a difference between ineffective assistance and counsel's tactical decisions in defense of a case." Probert, 719 P.2d at 787. I disagree with the majority's assertion that the Strickland test is not applicable to the case at hand because it was not a completed trial. The United States Supreme Court does not limit its decision in such amanner. In fact, Strickland itself arose not out of a trial proper but out of

a post-trial capital hearing proceeding which the court claimed was "adversarial" enough in nature to warrant application of the test. The proceeding we are concerned with was an actual trial, although an uncompleted one. Perhaps the full Strickland test is not appropriate in proceedings terminated sua sponte by the presiding judge but its general thrust is, especially when the trial is interruptedbecause the court feels ineffective assistance is taking place. Ifwe do notmeasure the court's soundness of' decision in amanner at least similar to Strickland,how else

arewe to review the decision? Defendant argues that what Judge Olson perceived as ineffective assistance of counselwas in fact a tacticalplandesigned to promote the eventual impeachment of the State's witnesses. Moran's counselmade many appropriatemotions and objections before and after trial. There appears to be only one place during the trial proceedings where Judge Olsonwas concerned with defense counsel's conduct. This instancewas thoroughly examined by the substitute judge and found not to rise to the level of ineffective assistanceof counsel. This conclusion deserves every deference normally accorded trial courtdecisions. /I

Justice

Mr. Justice John C. Sheehy, concurring in the foregoing dissent.