# ORIGINAL

IN THE SUPREME COURT OF THE STATE OF MONTANA OP 22-0037

KIP HARTMAN,

Petitioner,

v. MONTANA NINETEENTH JUDICIAL DISTRICT COURT, LINCOLN COUNTY, HON. MATTHEW CUFFE, Presiding,

Respondent. 

### MAR 0 8 2022
Bowen Greenwood Clerk pf Supreme Court 5rate rif Montana


### ORDER

Pursuant to M. R. App. P. 14(3), Petitioner Kip Hartman seeks a writ ofsupervisory control over theNineteenth Judicial District Court, Lincoln County, in Cause No.DC-19-75. Hartman asserts that retrial of the criminal prosecution against him after a mistrial was declared in the previoustrial is barred by the doublejeopardy clause oftheFifth Amendment to the United States Constitution. Hartman requests this Court issue a writ ofsupervisory control prohibitingthe retrial. The State responds that because the District Court declared a mistrial due to manifest necessity, retrial does not constitute doublejeopardy. The State charged Hartman with multiple counts arising from alleged fraudulent securities transactions. The District Court allotted nine days for the trial and advised the parties that their respective time would be divided equally. The District Court kept meticulous track ofthe parties' time and repeatedly reminded the parties during trial as to howmuch oftheir allotted time wasremaining. On the second day oftrial,theDistrict Court expressed concern about the time being expended and reminded the parties that cross-examination was being counted in the equal time calculation. The District Court had the following exchange with Hartman's counsel: THE COURT: There's a couple of things I wanted to make sure we all understood as we go forward that just kind of triggered, based on what [Hartman's counsel] had indicated when I asked him how much [cross03/08/2022

Case Number: OP 22-0037examination] he had left. Now, every night I'm getting a tally. I've got in my

notes when things start, when things stop. You indicated at the beginning of thisyouwanted equal time. Your cross-examination is counting asyourequal time. You understood that. [HARTMAN'S COUNSEL]: Understood. And I've been tracking it myself. THE COURT: Ijust wanted to make sure we were clear as we went forward with those things. On Monday of the second week of trial, the District Court began by specifically advising both the State and Hartman exactly how much time they had left "[f]or the rest of your cross-examinations, cases and rebuttal." TheDistrict Court advised the Statethat ithad ten hours and advised Hartman that he had fourteen hours. Hartman's counsel replied, "the 14 hours/ten hours, that works for me." The State rested its case the following day. After thejury was excused, the District Court again reminded the parties to be mindthl of their allotted time and advised that it would have a figure as to how much time each party had remaining the following morning. Hartman's counsel objected that Hartmanwas being deniedhis state and federal dueprocess rights to present a defense because he could not complete his case in the remaining time. Hartman's counsel also suggested thathe could notrender effective assistance ofcounsel in the remaining time and requested additional time. The District Court reminded Hartman's counsel that he had told him on Monday morning that he had fourteen hours left "to use however you want." The District Court reminded Hartman's counsel that, at the pretrial hearing, he advised the parties as to howmuch time they would have, that the parties would have the same amount oftime, and that cross-examination would count against their time. The Staterespondedthat itwas not taking a position onHartman'srequest for moretimebut requested that ifHartmanwas awarded moretime,the Statebe awardedproportionaltimeas well. The District Court stated it would take Hartman's request for more time under advisement and would address it the following morning. When court resumedthe following morning, theDistrict Court advisedthe parties oftheirrespectivetime remaining and refused to add additional time. 2On the eighth day of trial, Hartman's counsel announced that he intended to call

Hartman to testify but that he could not complete Hartman's testimony in the time he had remaining. Hartman's counsel acknowledgedthat hehadagreed tothetime thatwas allotted after it had been explained how the time would be calculated for each side, and that at the pretrial he "wantedto make sure [he] got the same amount oftime" as the State. Regarding the insufficient time remaining, Hartman's counsel stated: He [Hartman] gets his opportunity to talk, and I've taken it away from him. I haveprovided ineffective assistance. I have failedto provide or safeguardhis state Constitutional right to the assistance ofcounsel, because I have failed to leave enough tirne for him to testify. The District Court inquired: "So your request is allow Mr. Hartman to testify for as long as he wants. Is that right?" To which Hartman's counsel replied: "Not as long as he wants. As long as he needs." When pressed for a specific amount oftime he anticipated Hartman would need, his counsel initially indicated three hours, but when the District Court speculated as to how that wouldbe timed, Hartman's counsel stated, "I would submit rather thantime it,thatthe Court restrain it with [Rules]401, 402 and, most importantly, 403." The State responded that if Hartman was allowed an additional three hours for direct examination, it was concerned that it be granted additional time as well. The District Court ordered the parties to appear for a formal argument on Hartman's motion the following morning. At the hearing the following morning, Hartman offered no further argument. The State took no position on Hartman's motion for more time, other than to request that it be given an equal amount oftime for cross-examination. Noting that Hartman had the right to testify, the District Court agreed with Hartman's counsel that because of "[Hartman's] attorney['s] conduct in this case, we are in a situationwherewe cannot cornplete [thetrial] in the allotted time." The District Court noted: We also find our situation, which everybody knew about because the Court has been very clear as to our schedule, that we have a criminal jury trial scheduled next week. Now, I also have fitness to proceed evaluations for peoplewho are incarcerated. I have hearings for incarceratedDefendants asto 3their current counsel. Both of those are set. They all have Constitutional

rightsthat they are entitledto havethis Courtprotect. Theweek followingwe have another three-day criminal trial and additional hearing in the same vein for criminal Defendants; orders ofprotection, all ofwhich statutorily have to be recognized and have to be dealt with. [K]nowing that Mr. Hartman has that right [to testify], he gets to testify, and he should testify for as long as he feels is appropriate and necessary, we don't have the time to get this done within the allotted period oftime. I have no choicebut to declare a mistrial. I have to. Because he has those rights. And I can't put it any place else. After the District Court determined that it had to declare a mistrial to protect Hartman's constitutional right to testify, Hartman's counsel suddenly offered to complete Hartman's testimony in ninety minutes, despite having previously stated that Hartman's testimony should not be constrained by a particular time limit but only by Montana Rules of Evidence 401, 402, and 403. The District Court recessed to consider Hartman's proposal. After the recess, the District Court discussed at length the untenable situation that had been created. The District Court concluded it did not believe it could do anything other than declare a mistrial to serve the interests ofjustice. After the mistrial was declared,theDistrict Court deniedHartman'smotionto dismiss the charges on doublejeopardy grounds. Hartman petitions for a writ of supervisory control, arguing that the District Court abused its discretion by declaring a rnistrial and the currently scheduled retrial is barred by doublejeopardy. The State respondsthatthemistrialwasrequiredby manifestnecessity and is not barred by doublejeopardy. "Supervisory control is an extraordinaryremedy,"butmay bejustified "whenurgency
or emergency factors exist making the normal appeal process inadequate, when the case involves purely legal questions,"andwhen one or more ofthe followingthree circumstances exist: (a) the "other court is proceeding under a mistake of law and is causing a gross injustice; (b) [c]onstitutional issues of state-wide importance are involved; (c) [t]he other

4court has granted or denied a motion for substitution of a judge in a criminal case."

Mont. R. App. P. 14(3). We havepreviously deerned it appropriate to exercise supervisory control in cases implicating doublejeopardy. See City of Billings ex reL Huertas v. Billings Mun. Court, 2017 MT 261, ¶2, 389 Mont. 158, 404 P.3d 709; Keating v. Sherlock, 278 Mont. 218, 924 P.2d 1297 (1996). We review a trial court's declaration ofa mistrial for an abuse ofdiscretion. State v. Cates, 2009 MT 94, ¶21, 350 Mont. 38, 204 P.3d 1224. "A district court abuses its discretion if it acts arbitrarily without conscientious judgment or exceeds the bounds of

reason resulting in substantial injustice." State v. Kaarma, 2017MT24, ¶ 6, 386Mont.243, 390 P.3d 609 (quotation omitted). This Court will affirm a trial court's decisionto declare a mistrial ifthe court acted rationally and responsibly. Cates,

## ¶21. A district court'sdenial of

a motionto dismiss criminal charges on doublejeopardy grounds presents a question oflaw that we review for correctness. Cates, ¶22 (citations omitted). During trial, Hartman's counsel acknowledged that he had provided ineffective assistance ofcounsel by failing "to provide or safeguard [Hartman's] state [c]onstitutional rightto the assistance ofcounsel, because [hehad] failedto leave enoughtime for [Hartman] to testify." The District Court was then tasked with finding the best way to mitigate Hartman's counsel's ineffective assistance. Ultimately, the District Court concluded the only option was to declare a mistrial. In his Petition before this Court, Hartman fails to acknowledge his own counsel's ineffective assistance in creating the dilemmatheDistrict Court faced and argues insteadthat "[t]he trial time limits and mistrial were the product of the court's desire to achieve efficiency and preserve its schedule." But the time allotted for trial was known to all sides before trial commenced, how the time would be apportioned and the limits in place were known from the outset, the District Court meticulously tracked the time each party was using, and the District Court continually reminded the parties how much time they had remaining. Correct management ofthe time allottedwasHartman's counsel'sresponsibility which, as he acknowledged attrial,he failed to do. Because ofthis failure,theDistrict Court 5waspresentedwith one ofthree options: (1) adhereto the allotted time and ground rulesthat

all parties had agreed to prior to trial and truncate Hartman's testimony, which Hartman's counsel stated at trial would be the result ofineffective assistance on his part; (2) abandon the allotted time and ground rules that all parties had agreed to prior to trial and allow the parties additional time, in disregard of the constitutional rights of other parties who had matters pending before the court; or (3) declare a mistrial. IfHartman was convicted as a result ofthe District Court electing option one and limitingHartman's testimony to the time he had remaining, Hartman's counsel had already made it clearthat he would pursue a claim ofineffective assistance ofcounsel. IfHartman's ineffective assistance claim was successful,Hartman's convictionwouldbevacated andthe matter remanded for a new trial. Hartman's remedy would not be reversal without retrial. "[A] remedy must 'neutralize the taint' ofa constitutional violation, while at the same time not grant a windfall to the defendant." Lafler v. Cooper, 566 U.S. 156, 170, 132 S. Ct. 1376, 1388-89 (2012). It would be ironic, to say the least, iftheDistrict Court's alleged abrogation ofHartman's constitutional right to testify could result in his retrial, but the District Court's protection ofthe same right could not. Hartman is not entitled to such a windfall. Had the District Court elected option two and granted Hartman and the State additional time to complete Hartman's testimony, this would havejeopardized the rights of other litigants withtheir own pendingmatters. WhentheDistrict Court declaredthemistrial, it noted that it had a criminal jury trial scheduled the following week, as well as fitness to proceed evaluations and other hearings for incarcerated defendants. The District Court correctly observed, "[t]hey all have [c]onstitutional rights that they are entitled to have this Court protect." What Hartman dismisses as the "court's desire to achieve efficiency and preserve its schedule," is the District Court's conscientious protection ofthe constitutional rights ofall parties before it, including Hartman. "Manifest necessity ispresentwhen particular circumstancesmanifest anecessity for [tenninating the trial], and when failure to discontinue would defeat the ends ofjustice." Cates,¶33 (citations and internal quotation marksomitted). Therecordherereflectsthatthe 6

### District Court was placed in an untenable situation, conscientiously considered the options

availabletoit, and correctly determined that circumstances necessitated terminatingthetrial toprotect Hartman's constitutional rights. TheDistrict Court did not abuse its discretion by declaring a mistrial. IT ISORDERED that Hartman'spetition for writ ofsupervisory control is DENIED and DISMISSED. The Clerk is directed to provide immediate notice of this Order to counsel for Petitioner, all counsel ofrecord in the Nineteenth Judicial District Court, Lincoln County, Cause No. DC-19-75, the Honorable Matthew J. Cuffe, presiding. DAITED this%/ day ofMarch, 2022.



# SU Pi JUL

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