NO. 87-155 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vs-, 

KENNETH N. MORAN, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

Honorable Byron L. Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Honorable Mike Greely, Attorney General, Helena, Montana 

Robert F. W. Smith, Assistant Attorney General 

Mike Salvagni, County Attorney, Bozeman, Montana 

Marty Lambert, Deputy County Attorney 

For Respondent: 

LeAnne Schraudner, Lilly, Andriolo and Schraudner; 

Bozeman, Montana 

Richard Nellen, Bozeman, Montana 

Submitted: January 15, 1988 

Decided: April 21, 1988 

Clerk 
Mr. 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 is whether the District Court committed error 

by granting defendant's motion 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 of witness tampering. The two cases were consolidated 

by the District Court, and trial began on September 22, 1986. 

The jury was empaneled and sworn on that day, and the prosecution presented six witnesses. This was defense counsel's 

first felony criminal trial before a jury. On the morning of 

the second day of trial, before any more testimony was offered, the trial judge on his own motion declared a mistrial. 

The basis for this action was 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 the matter 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 judge granted the motion. 

Did the District Court commit error by granting defendant's motion to dismiss? 

We accord great deference to the trial judge's findings 

and conclusions when the judge heard the witnesses and 
observed 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 chambers and 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 seven pages of a trial transcript 

which when complete contains 221 pages of voir dire, testimony, and in-chambers discussions. For these reasons, the 

substitute judge's order of dismissal will not receive the 

same deference as the action by the trial judge. 

We now consider whether the trial judge abused his 

discretion in finding manifest necessity for mistrial. The 

trial judge's action was motivated 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 States v. Sanders (9th Cir. 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 of his 

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, jeopardy had 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 of mistrial 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), 792 F.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 counsel was too inexperienced to defend a major felony charge involving conspiracy 

and accountability theories. One example was the failure of 

defense counsel to 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 a deputy sheriff. Exhibit 38 was a "rights" 

card, which contained a Miranda statement of the defendant's 

right against self-incrimination and his right to assistance 

of counsel. This particular form provided a line for the 

defendant's signature if he made a signed waiver. The defendant here had not signed that line. The form also provided a 

space where the deputy could write down the answer of the 

defendant when he was asked "Do you want 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 a written waiver or why he failed to record an 

oral waiver. Defense counsel did not make any objection at 

that point. Notwithstanding the absence of an objection, the 

trial court called counsel into chambers and 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 that point, even though counsel 

for the defense had still failed to make any objection, the 

court refused the testimony on the grounds that the officer 

failed to properly obtain an oral waiver of rights. 

The following day, before the commencement of trial, 

the court made the following ruling: 

Let the record show we're outside the presence 

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 not have the sufficient 

experience to 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 Defendant be 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 a mistrial and I'm going to find 

that manifest necessity dictates that matter be 

retried and that the bars of double jeopardy do not 

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, 197 Mont. 131, where this 

Court pointed out that the existence of a valid waiver depends in each case upon the particular facts and circumstances, including the background, experience and conduct of the 

accused and other appropriate considerations including the 

age, education and intelligence of the accused and his capacity to understand the warnings and the consequences of waiving 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. The record contains substantial evidence to support 

the conclusion of the District Court that the State had 
failed to properly obtain an oral waiver of rights so that 

the defendant's admission or confession was not admissible in 

evidence. 

We conclude that the trial judge acted rationally, 

carefully considering the problems of the difficult 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 consider alternatives. No reasonable alternatives were suggested in this case. A continuance until a 

new defense counsel was familiarized with 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 testimony was highly prejudicial to the defendant, there remains no question of trial tactics. Counsel 

failed to object to the admission of damaging 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 insufficient experience 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 the deficient performance prejudiced the defense 

and that the errors were 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 

of double jeopardy and remand the c 

We Concur: 

- -.. .-...a - - - - -. - - -- Justices 

7 
Mr. Justice William E. Hunt, Sr., dissenting: 

The majority today provides the means by which the 

defendant may be tried twice for the same offense. 

Accordingly, I dissent. 

In its opinion, the majority holds that the substitute 

judge should not be accorded the same deference upon review 

as is normally accorded trial courts because 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 

the majority has reviewed the whole record, it does 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 to me 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 a mistrial. Arizona v. Washington (1978), 434 U.S. 

497, 514, 98 S.Ct. 824, 835, 54 L.Ed.2d 717, 733. The 

majority has discussed only one instance of 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 inadequate 
representation 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 functioning as the 'counsel1 guaranteed the 

defendant by the Sixth Amendment. Second, the 

defendant must show that the deficient performance 

prejudiced the defense. 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 

sentence resulted from a breakdown in the adversary 

process that renders the result unreliable. 

Strickland, 466 U.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 to make 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 recent decision 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 hearsay was error, it 

was not prejudicial. The Court also recognized that "[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 a manner. 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 

interrupted because the court feels ineffective assistance is 

taking place. If we do not measure the court's soundness of' 

decision in a manner at least similar to Strickland, how else 

are we to review the decision? 

Defendant argues that what Judge Olson perceived as 

ineffective assistance of counsel was in fact a tactical plan 
designed to promote the eventual impeachment of the State's 

witnesses. Moran's counsel made many appropriate motions and 

objections before and after trial. There appears to be only 

one place during the trial proceedings where Judge Olson was 

concerned with defense counsel's conduct. This instance was 

thoroughly examined by the substitute judge and found not to 

rise to the level of ineffective assistance of counsel. This 

conclusion deserves every deference normally accorded trial 

court decisions. /I 

Justice 

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

dissent.