Hartman v. 19th Judicial District ( 2022 )

ORIGINAL 03/08/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 22-0037
OP 22-0037
KIP HARTMAN,
MAR 0 8 2022
Petitioner, Bowen Greenwood
Clerk pf Supreme Court
5rate rif Montana
v.
ORDER
MONTANA NINETEENTH JUDICIAL
DISTRICT COURT, LINCOLN COUNTY,
HON. MATTHEW CUFFE, Presiding,
Respondent.
Pursuant to M. R. App. P. 14(3), Petitioner Kip Hartman seeks a writ of supervisory
control over the Nineteenth 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 previous trial is barred by the double jeopardy clause of the Fifth Amendment
to the United States Constitution. Hartman requests this Court issue a writ of supervisory
control prohibiting the retrial. The State responds that because the District Court declared a
mistrial due to manifest necessity, retrial does not constitute double jeopardy.
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 of the parties' time and repeatedly reminded the parties during trial as to
how much of their allotted time was remaining. On the second day oftrial, the District 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 [cross-
examination] 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
this you wanted equal time. Your cross-examination is counting as your equal
time. You understood that.
[HARTMAN'S COUNSEL]: Understood. And I've been tracking it myself.
THE COURT: I just 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." The District Court advised the State that it had
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 the jury 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 Hartman was being denied his state and federal due process
rights to present a defense because he could not complete his case in the remaining time.
Hartman's counsel also suggested that he could not render effective assistance of counsel 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 how much time they would have, that the parties would
have the same amount of time, and that cross-examination would count against their time.
The State responded that it was not taking a position on Hartman's request for more time but
requested that if Hartman was awarded more time, the State be awarded proportional time as
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 resumed the following
morning, the District Court advised the parties of their respective time remaining and refused
to add additional time.
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On 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 acknowledged that he had agreed to the time that was allotted
after it had been explained how the time would be calculated for each side, and that at the
pretrial he "wanted to make sure [he] got the same amount of time" 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
have provided ineffective assistance. I have failed to provide or safeguard his
state Constitutional right to the assistance of counsel, 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 of time he anticipated Hartman
would need, his counsel initially indicated three hours, but when the District Court
speculated as to how that would be timed, Hartman's counsel stated, "I would submit rather
than time it, that the 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 of time 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 situation where we cannot cornplete [the trial] 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
people who are incarcerated. I have hearings for incarcerated Defendants as to
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their current counsel. Both of those are set. They all have Constitutional
rights that they are entitled to have this Court protect. The week following we
have another three-day criminal trial and additional hearing in the same vein
for criminal Defendants; orders of protection, all of which 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 of time. I have no
choice but 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 of justice.
After the mistrial was declared, the District Court denied Hartman's motion to dismiss
the charges on double jeopardy 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
double jeopardy. The State responds that the mistrial was required by manifest necessity and
is not barred by double jeopardy.
"Supervisory control is an extraordinary remedy," but may be justified "when urgency
or emergency factors exist making the normal appeal process inadequate, when the case
involves purely legal questions," and when one or more of the following three 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
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court has granted or denied a motion for substitution of a judge in a criminal case."
Mont. R. App. P. 14(3). We have previously deerned it appropriate to exercise supervisory
control in cases implicating double jeopardy. See City ofBillings 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 of a mistrial for an abuse of discretion. 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, 2017 MT 24, ¶ 6, 386 Mont. 243,
390 P.3d 609 (quotation omitted). This Court will affirm a trial court's decision to declare a
mistrial if the court acted rationally and responsibly. Cates, ¶ 21. A district court's denial of
a motion to dismiss criminal charges on double jeopardy grounds presents a question of law
that we review for correctness. Cates, ¶ 22 (citations omitted).
During trial, Hartman's counsel acknowledged that he had provided ineffective
assistance of counsel by failing "to provide or safeguard [Hartman's] state [c]onstitutional
right to the assistance of counsel, because [he had] failed to leave enough time 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 dilemma the District Court faced and argues instead that
"[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 of the time allotted was Hartman's counsel's responsibility
which, as he acknowledged at trial, he failed to do. Because of this failure, the District Court
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was presented with one of three options: (1) adhere to the allotted time and ground rules that
all parties had agreed to prior to trial and truncate Hartman's testimony, which Hartman's
counsel stated at trial would be the result of ineffective 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.
If Hartman was convicted as a result of the District Court electing option one and
limiting Hartman's testimony to the time he had remaining, Hartman's counsel had already
made it clear that he would pursue a claim of ineffective assistance of counsel. If Hartman's
ineffective assistance claim was successful, Hartman's conviction would be vacated and the
matter remanded for a new trial. Hartman's remedy would not be reversal without retrial.
"[A] remedy must 'neutralize the taint' of a 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, if the District Court's alleged abrogation
of Hartman's constitutional right to testify could result in his retrial, but the District Court's
protection of the 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 have jeopardized the rights of
other litigants with their own pending matters. When the District Court declared the mistrial,
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 of the constitutional
rights of all parties before it, including Hartman.
"Manifest necessity is present when particular circumstances manifest a necessity for
[tenninating the trial], and when failure to discontinue would defeat the ends of justice."
Cates, ¶ 33 (citations and internal quotation marks omitted). The record here reflects that the
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District Court was placed in an untenable situation, conscientiously considered the options
available to it, and correctly determined that circumstances necessitated terminating the trial
to protect Hartman's constitutional rights. The District Court did not abuse its discretion by
declaring a mistrial.
IT IS ORDERED that Hartman's petition for writ of supervisory control is DENIED
and DISMISSED.
The Clerk is directed to provide immediate notice of this Order to counsel for
Petitioner, all counsel of record in the Nineteenth Judicial District Court, Lincoln County,
Cause No. DC-19-75, the Honorable Matthew J. Cuffe, presiding.
DAITED this %/ day of March, 2022.
SU Pi JUL
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