City of Billings Ex Rel. Huertas v. Billings Municipal Court

10/31/2017
OP 17-0084
Case Number: OP 17-0084
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 261CITY OF BILLINGS, ex rel.,
JAMES JOSEPH HUERTAS,
Relator and Petitioner,
v.
BILLINGS MUNICIPAL COURT, The Honorable
Sheila R. Kolar, and
THIRTEENTH JUDICIAL DISTRICT COURT,
the Honorable Michael G. Moses,
Respondents.
ORIGINAL PROCEEDING: Billings Municipal Court,
In and For the City of Billings, Cause No.
TK-2016-4035
Honorable Sheila R. Kolar, Presiding Judge
COUNSEL OF RECORD:
For Petitioner:
Lisa J. Bazant, Attorney at Law, Billings, Montana
For Respondents:
Brent Brooks, Billings City Attorney, Benjamin J. Halverson,
Deputy Billings City Attorney, Billings, Montana
Submitted on Briefs: August 23, 2017
Decided: October 31, 2017
Filed:
__________________________________________
Clerk
OPINION AND ORDER
Justice Laurie McKinnon delivered the Opinion and Order of the Court.
¶1 Petitioner James Joseph Huertas (Huertas) requests this Court exercise supervisory
control over the Billings Municipal Court and conclude the Municipal Court placed
Huertas in double jeopardy when it granted the City’s motion for a mistrial and
subsequently scheduled a new trial.
¶2 Montana Constitution, Article VII, Section 2(2), grants this Court general
supervisory control over all other courts. This Court exercises supervisory control on a
case-by-case basis, as it is an extreme remedy. M. R. App. P. 14(3). Supervisory control
is appropriate “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” three enumerated circumstances exist. M. R. App. P. 14(3). We accepted
supervisory control over this matter on March 22, 2017, concluding the double jeopardy
issue was appropriate for supervisory control pursuant to Keating v. Sherlock, 278 Mont.
218, 924 P.2d 1297 (1996).
¶3 We reverse the Municipal Court’s order denying Huertas’s motion to dismiss and
address the following issue:
Did the Municipal Court abuse its discretion in declaring a mistrial and err in
concluding that double jeopardy did not bar Huertas’s retrial?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 The City of Billings (City) charged Huertas with Partner or Family Member
Assault (PFMA) following an incident between Huertas and alleged victim L.H. The
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Municipal Court set Huertas’s trial for January 20, 2017, at which time a jury was
impaneled and sworn. During its case-in-chief, the City called L.H. to the stand. The
City asked L.H. if she wanted to be there and she replied that she did not. When asked,
“Are you only here because of a court-ordered subpoena?” she responded, “I am,” and
indicated that she was unhappy testifying. The City did not inquire further into the
subpoena and proceeded with its direct examination.
¶5 After the City completed its questioning of L.H., defense counsel Lisa Bazant
(Bazant) began cross-examining L.H. During cross-examination, the following exchange
occurred:
[Bazant]: Did members of the Billings Police Department try to get you to
testify a particular way? . . . Were you visited by the Billings Police
Officer yesterday?
[L.H.]: Yes.
[Bazant]: And did that officer attempt to influence your testimony today?
[L.H.]: Yes.
[Bazant]: Influence you in a way that it would be more toward the
prosecution’s—
[City]: I’d like to object. May we approach?
The Judge allowed counsel to approach, and after an inaudible conversation excused the
jury but asked the parties to remain. The jury left the courtroom and L.H., still under
oath, explained the interaction at issue. L.H. testified that the night before trial, at
approximately 11:00 p.m., Billings Police Officer LaMantia (Officer LaMantia) served
her a subpoena requiring her to appear at the trial as one of the City’s witnesses. L.H.
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said her roommate let Officer LaMantia into their home and Officer LaMantia sat next to
L.H. on the couch.
¶6 Before L.H. explained more, the Judge asked the City if it knew about the
interaction. The City said the information was a “surprise” that had a “significant
impact” on its case and relayed two main concerns. First, if what L.H. alleged was true,
Officer LaMantia engaged in witness tampering and he needed the opportunity to respond
to L.H.’s allegations. Second, if the allegations were true, the City needed to declare a
mistrial because the City was unfairly prejudiced by the information. If the trial moved
forward after the jury heard L.H.’s testimony, the City needed to investigate Officer
LaMantia’s actions and contemplated that it may have to dismiss the case. On the other
hand, the City observed that if the case moved forward and Huertas was acquitted, it
would then be “too late” to address the allegations. The City concluded it was unable to
proceed with the new, very significant, information because it needed to interview
Officer LaMantia and L.H.
¶7 Bazant agreed that the information had a significant impact on the case and
expressed concern that L.H., the City’s own witness, may have been inappropriately
influenced by an officer. The Judge responded that she was “not going to put the City
Prosecutor” in an unfavorable light because “[h]e didn’t know.” During this discussion
both Bazant and the Judge alluded to the fact that there was a preexisting relationship
between Officer LaMantia and Huertas. While we cannot ascertain the exact nature of
their relationship from our review of the record, it is clear that Huertas, Officer LaMantia,
and L.H. were personally familiar with one another at the time the subpoena was served.
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The Judge expressed serious concern about the events, stating that if Officer LaMantia
behaved as alleged “the City is put at disadvantage unbeknownst to them.” The City
reported it had asked a sergeant to serve the subpoena and did not know Officer
LaMantia was going to serve it.
¶8 The Judge then asked L.H. to explain more about what happened the night before.
L.H. testified that Officer LaMantia and another officer served her the subpoena in the
presence of her roommate. L.H. said that, after giving her the document, Officer
LaMantia wanted to give her “friendly advice as a friend.” L.H. testified that Officer
LaMantia told L.H. she needed to be at trial so Huertas would be “punished for
everything that he has done.” The Judge responded, “[B]ut he didn’t tell you to testify.
He just said you needed to be there. It’s a Subpoena. You are under Subpoena so he did
do that.” L.H. responded, stating that Officer LaMantia told her to “ignore the uniform”
and that he, “as a friend,” was telling her she needed to be at trial to “tell them exactly
what happened.” Based on these allegations, the following exchange occurred between
L.H., Bazant, and the Judge:
[Judge]: [I]t is a Subpoena, and you are subpoenaed, and you do need to be
here because you were subpoenaed, and as a friend or whatever he
says. Is that all he said to you?
[L.H.]: Honestly, I was a mess. I don’t—
[Judge]: Is that all he said to you?
[Bazant]: Did he encourage you to testify one way or the other?
[Judge]: No.
[L.H.]: Yes, he enc—he did though.
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[Judge]: You just told me, stated to me that he just said you need to be there
and tell the truth. Did he not say—
[L.H.]: But in a negative light.
[Judge]: And what do you mean a negative light?
[L.H.]: In that he wanted to see [Huertas] punished even though, he, I told
him that—
[Judge]: He wanted to see [Huertas] punished. Okay. So that’s a personal
vendetta or something.
[L.H.]: Yes.
[Judge]: I don’t know, between the two. But he said he wanted to see him
punished. But did he tell you how to testify.
[L.H.]: No, I guess not.
¶9 The Judge stated that the interaction did not go “far enough” for her; that Officer
LaMantia was simply serving a subpoena. She asked the City if it thought there was an
issue, and the City started to discuss the other people present during the interaction and
indicated there may be police body camera recordings of the interaction. The Judge
interrupted the City, stating, “Well, she hasn’t indicated that he influenced her how to
testify. He served a subpoena . . . . But what she testified earlier that he influenced her
testimony or whatnot, the jury’s already heard it. And honestly that’s not what she’s
saying to me right now.”
¶10 The Judge observed an inconsistency between L.H.’s testimony in front of the
jury, where she said she was influenced by an officer, and L.H.’s testimony outside the
presence of the jury, where she said differently. The fact that the jury heard potentially
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inaccurate information concerned the Judge. The City began a conversation about how
the situation should proceed, moving for a mistrial in the process:
[City]: So what I would suggest to deal with this situation moving forward
is that [L.H.] be given the opportunity to be contacted by a detective
to get a statement regarding her conversation with Officer
[LaMantia] that—
[Judge]: And they should pull this record and listen to what she had to say
today, too, as well.
[City]: And they should pull this, and they need to get all the [body camera
footage], and I’m asking for a mistrial because there is no way that I
would’ve had knowledge about that that until just—
[Judge]: Well, and it’s not even fit knowledge is this what she says to me
right now, and what was said on the record is a huge disadvantage
and a conflict, and I don’t think it can be remedied. I really don’t.
(Emphasis added).
¶11 The Judge asked the defense for its position regarding the City’s request for a
mistrial, and Bazant responded:
Well, I do hate to go forward but, or I mean to hate to go forward in such a
manner that we’re going to do, cause some problems later. Listening to
what [L.H.] is saying now versus what I had thought was her testimony
earlier, it was more than just, you know, a vendetta with Huertas and
[Officer LaMantia]. It was, it was more, [L.H.], you need to testify this
way so he does get (inaudible).
The Judge answered, contemplating the testimony’s impact on the jury and suggesting
she was inclined to declare a mistrial:
Right, and that was your impression. When you were going to cross
examine her or, or, and honestly that’s how she testified on the record, and
then the jurors already been poisoned, and I think it is a mistrial. I don’t
think there’s any way we can remedy that, I really don’t. And, and I am
going to tell you that you will, if we do this mistrial, we’re going to have to
have a date certain again . . . .
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The City pointed out that it needed to investigate the circumstances surrounding the
subpoena’s service, but the Judge had already decided L.H. was not improperly
influenced by Officer LaMantia:
Well, you know, I still believe we could go on even though this may have
happened. What she testified to, I don’t think it needs to come up, and
that’s up to you guys, and that will delay the trial longer if you guys want to
get into it. I don’t believe what she stated on the record goes that far. He
should’ve never served it. He may have an issue with the Defendant, but I
don’t believe with what she just stated that he told her that you, it’s pretty
much you need to testify he needs to be punished, not you need to
testify . . . don’t say the truth or whatever. So that isn’t what I got from
this, but it still poisoned our jury, and we were moving along quite nicely.
We’re going to have to set a date certain. . . . This needs to go forward.
Bazant agreed that more investigation needed to occur, but did not say anything about the
mistrial:
Well, I think it does need to go forward, and I think we do need to hear
from [L.H.’s roommate] and, you know, listen to the [body cameras].
Because I think if she was feeling threatened, whether or not he was as, you
know, it would be really stupid for an officer to say you need to testify
(inaudible).
The Judge responded to Bazant and definitively declared a mistrial:
Yeah, but the point is is she’s supposed to be here today, and it sounds like
she’s not having any problem holding her own. Okay? And she’s going to
testify to what she believes the truth is. And if that’s an issue that
happened, that’s between the City of Billings Police Department if it gets
investigated. It doesn’t need to come back into this courtroom. I can tell
you that because I don’t think that she’s having any problem with what she
wants to testify. I don’t believe she was influenced by him. She’s here
today. She was influenced, but she was subpoenaed, she has to be here. . . .
It’s a mistrial, and what is our new [trial] date? . . .
¶12 The parties started to talk about a new trial date and witness availability. The
Judge stated the City may need time to investigate the subpoena situation, but she still did
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not believe that the “information will be relevant for the trial.” She asked the parties if
they agreed to that, and Bazant again emphasized further investigation, responding, “I
want to see what’s on [the body camera]. I want to hear how it came down. I mean as I
said—” The Judge interrupted Bazant, stating:
Well, and even if it, if he even did influence her how to testify or not to
testify, I don’t believe at this point she was influenced by anything. And
when the trial day comes, I don’t believe that, I think again it’s between the
City and their officer, and investigation, internal investigation if that’s what
happened.
The City reminded the Judge that witness tampering does not have to be successful in
order for it to be a crime, but the Judge re-emphasized that, even if Officer LaMantia was
prosecuted, the incident would not have “any bearing on this case because I do not
believe that [L.H.] was influenced by it.” The Judge then inquired as to the best dates for
a retrial and ultimately rescheduled Huertas’s trial for February 14, 2017.
¶13 On February 6, 2017, Huertas filed a motion in Municipal Court to dismiss the
PFMA charge, contending further prosecution would violate his constitutional rights
which protect him from being twice placed in jeopardy for the same offense. He argued
the City moved for a mistrial because it knew it was unlikely to secure a conviction
following L.H.’s testimony. Huertas emphasized that his right to have his case decided
by that particular tribunal, a right “at the core of the constitutional protection to be free
from double jeopardy,” would be violated if he was retried. One day later, on February 7,
2017, the Municipal Court issued a one-page order, summarily denying Huertas’s motion
to dismiss without addressing his legal arguments. Following the denial, Huertas
petitioned the District Court for a Writ of Mandamus or Other Appellate Relief, asking
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the District Court to vacate the Municipal Court’s denial and grant his motion to dismiss.
The District Court denied the petition, holding the case was not appropriate for its review
because Huertas had a “plain, speedy, and adequate remedy in the ordinary course of
law” as provided in § 27-26-102(2), MCA. The District Court observed Huertas
adequately preserved his constitutional objections which could be raised on appeal if
necessary after the Municipal Court entered final judgment.1 Huertas then filed a petition
for Writ of Supervisory Control, asking this Court to direct the Municipal Court to
dismiss the criminal proceeding against him on double jeopardy grounds. The Municipal
Court temporarily vacated Huertas’s retrial and the case is now pending our decision.
STANDARD OF REVIEW
¶14 This Court reviews 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 (citing State
v. Flores, 1998 MT 328, ¶ 12, 292 Mont. 255, 974 P.2d 124). We will affirm a trial
1
With respect to the District Court’s conclusion that Huertas had an adequate remedy of appeal,
we reiterate our statements made in Keating, 278 Mont. at 224, 924 P.2d at 1300, which was also
the basis for our decision to accept supervisory control in the instant proceeding:
Both the U.S. Constitution, Fifth Amendment and the Montana Constitution,
Article II, Section 25, protect individuals from being twice placed in jeopardy. If
those guarantees are to have any significance, they require that the prohibition
must be given effect prior to, not after, the second trial. If, as the State argued,
Keating proceeded with a second trial and were convicted, he could appeal on the
basis of double jeopardy. This Court could vacate the conviction. However,
vacating the conviction would not change the fact that Keating would have been
“put in jeopardy.” The same would hold true even if Keating were acquitted in
the second trial. That is, the acquittal would not alter the fact that, in being tried a
second time, he was again placed in jeopardy of being convicted. The
constitutional prohibition is designed to prevent the individual from being put at
risk of conviction at a second trial. Once he endures the second trial, regardless
of conviction or acquittal, he has incurred the risk; he has been put in “jeopardy,”
and that fact cannot be remedied or expunged after the fact.
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judge’s decision if he or she acted rationally and responsibly in declaring a mistrial.
Cates, ¶ 21 (citing Flores, ¶ 12).
¶15 A trial court’s denial of a defendant’s motion to dismiss criminal charges on
double jeopardy grounds is a question of law that we review for correctness. State v.
Stone, 2017 MT 189, ¶ 10, 388 Mont. 239, 400 P.3d 692 (citing Cates, ¶ 22; State v.
Maki, 2008 MT 379, ¶ 9, 347 Mont. 24, 196 P.3d 1281).
DISCUSSION
¶16 Did the Municipal Court abuse its discretion in declaring a mistrial and err in
concluding that double jeopardy did not bar Huertas’s retrial?
¶17 The Fifth Amendment of the United States Constitution, applicable to the states
via the Fourteenth Amendment, and Article II, Section 25, of the Montana Constitution
protect citizens from being placed twice in jeopardy for the same offense. U.S. Const.
amend. V (“[N]or shall any person be subject for the same offence to be twice put in
jeopardy . . . .”); Mont. Const. art. II, § 25 (“No person shall be again put in jeopardy for
the same offense previously tried in any jurisdiction.”). These constitutional safeguards
are important because the prosecution, “with all its resources and power should not be
allowed to make repeated attempts to convict an individual for an alleged offense . . . .”
Cates, ¶ 30 (quoting United States v. Dinitz, 424 U.S. 600, 606, 96 S. Ct. 1075, 1079
(1976)) (internal quotations and citations omitted). Accordingly, these provisions seek to
provide finality for a criminal defendant. State v. Carney, 219 Mont. 412, 416, 714 P.2d
532, 534 (1986) (quoting United States v. Jorn, 400 U.S. 470, 479, 91 S. Ct. 547, 554
(1971)).
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¶18 During a jury trial, jeopardy attaches as soon as the jury is impaneled and sworn.
Cates, ¶ 30 (citing Carney, 219 Mont. at 417, 714 P.2d at 535). When a mistrial is
declared after jeopardy attaches, “the defendant’s valued right to have his trial completed
by a particular tribunal is also implicated.” Cates, ¶ 31 (citing Dinitz, 424 U.S. at 606, 96
S. Ct. at 1079) (internal quotations and citations omitted). In this case, jeopardy
undisputedly attached when the jury was impaneled and sworn at the start of trial on
January 20, 2017. Thus, Huertas’s right to be free from double jeopardy is clearly
implicated. The question now before the Court is whether retrying Huertas for the PFMA
charge would violate his federal and state constitutional rights to be free from double
jeopardy.
¶19 After a defendant’s double jeopardy rights are implicated and a mistrial is
declared, a “second criminal trial is barred unless there was a manifest necessity to
terminate the trial or the defendant acquiesced in the termination.” Cates, ¶ 33 (quoting
Carney, 219 Mont. at 417, 714 P.2d at 535) (internal omissions, quotations, and citations
omitted). Manifest necessity to discontinue a trial exists when “particular circumstances
manifest a necessity for so doing, and when failure to discontinue would defeat the ends
of justice.” Cates, ¶ 33 (quoting Carney, 219 Mont. at 417, 714 P.2d at 535; Wade v.
Hunter, 336 U.S. 684, 690, 69 S. Ct. 834, 838 (1949)). A mistrial is an “exceptional
remedy,” State v. Miner, 2012 MT 20, ¶ 13, 364 Mont. 1, 271 P.3d 56 (quoting State v.
Novak, 2005 MT 294, ¶ 26, 329 Mont. 309, 124 P.3d 182), and therefore a “remedial
action short of a mistrial is preferred unless the ends of justice require otherwise.”
12
Novak, ¶ 26. Where there are only “technical errors or defects that do not affect the
substantial rights of the defendant” a mistrial is inappropriate. Miner, ¶ 13.
¶20 In Carney we recognized that the key word “necessity” cannot be interpreted
literally when analyzing a claim of double jeopardy. Carney, 219 Mont. at 417, 714 P.2d
at 535 (adopting the United States Supreme Court’s manifest necessity explanations from
Wade, 336 U.S. at 690, 69 S. Ct. at 838, and Arizona v. Washington, 434 U.S. 497, 506-
09, 98 S. Ct. 824, 831-32 (1978)). Instead of a literal interpretation, we observe necessity
in terms of degree, and sufficient manifest necessity in the double jeopardy context
requires a high degree of necessity. Carney, 219 Mont. at 417, 714 P.2d at 535. To
determine what degree of necessity exists in a given case we must undertake an
individualized and fact-intensive inquiry:
The question whether that “high degree” has been reached is answered
more easily in some kinds of cases than in others. At one extreme are cases
in which a prosecutor requests a mistrial in order to buttress weaknesses in
his evidence. Although there was a time when English judges served the
Stuart monarchs by exercising a power to discharge a jury whenever it
appeared that the Crown’s evidence would be insufficient to convict, the
prohibition against double jeopardy as it evolved in this country was plainly
intended to condemn this “abhorrent” practice . . .
Thus, the strictest scrutiny is appropriate when the basis for the mistrial is
the unavailability of critical prosecution evidence, or when there is reason
to believe that the prosecutor is using the superior resources of the State to
harass or to achieve a tactical advantage over the accused.
At the other extreme is the mistrial premised upon the trial judge’s belief
that the jury is unable to reach a verdict, long considered the classic basis
for a proper mistrial. . . .
Carney, 219 Mont. at 417, 714 P.2d at 535 (quoting Arizona, 434 U.S. at 506-09, 98 S.
Ct. at 831-32) (omissions in Carney). Furthermore, a “more stringent manifest necessity
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standard applies when a trial court considers declaring a mistrial without the defendant’s
request or consent.” State v. Partin, 287 Mont. 12, 16, 951 P.2d 1002, 1004 (1997).
¶21 With these considerations in mind, we now address whether there was manifest
necessity to discontinue Huertas’s trial. At the time the Municipal Court declared a
mistrial, L.H. had only made two potentially damaging statements in the presence of the
jury. She answered “yes” to the question of whether she was visited by an officer and
“yes” to the question of whether the officer attempted to influence her testimony.
Immediately, the City objected and asked to approach the bench before L.H. could
answer Bazant’s third question. At this stage of the proceeding, the City still could have
rehabilitated L.H. through redirect examination. This is especially true in light of the
knowledge the City acquired through the subsequent inquiry made by the court and
parties regarding the incident. The Judge questioned L.H. outside of the presence of the
jury to clarify the circumstances surrounding the subpoena’s service and was convinced
that L.H. was not improperly influenced by Officer LaMantia. Significantly, L.H.’s
responses to the questions were sufficient enough to demonstrate to the Judge that
nothing inappropriate occurred when the subpoena was served—similar questioning
could have occurred in front of the jury to demonstrate the same. Instead, the Judge
believed L.H.’s testimony could not be remedied because the jury was already
“poisoned,” an opinion she reiterated throughout the questioning and subsequent
conversation. The Judge also emphasized that L.H.’s testimony put the City at a “huge
disadvantage” and, in her opinion, presented a significant conflict that could not be
remedied. The Judge’s statements that the City did not know about the circumstances of
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the subpoena’s service, that the City was disadvantaged by the testimony, that a conflict
now existed, and that the jury was “poisoned” do not demonstrate manifest necessity to
terminate the proceeding, particularly when remedial measures were available.
¶22 Furthermore, we must note that L.H. was the City’s witness. The City was
ultimately responsible for serving its own witness, albeit a hostile one, with a subpoena to
ensure her presence at trial. The fact that the witness testified to the circumstances of the
service in an unexpected light does not create manifest necessity sufficient to justify a
new trial. We have no reason to believe the City used the service to improperly achieve
some sort of tactical advantage, but the City’s simple lack of knowledge that the
subpoena was served as alleged by L.H. is not persuasive—the City could have easily
discovered information regarding the service, as the City’s own police officer served the
subpoena on the City’s own witness. The Judge articulated no conditions that enable us
to conclude manifest necessity obliged the trial’s termination; nor do we find support for
such a determination from our review of the record. We therefore conclude the
Municipal Court abused its discretion in declaring a mistrial because there was no
manifest necessity.
¶23 Even though no manifest necessity exists in this case, Huertas may still be retried
if he acquiesced in the trial’s termination. A defendant acquiesces in a trial’s termination
“if the totality of the circumstances and the affirmative conduct of the defendant show
that she waived her right to object to the termination of trial proceedings.” Cates, ¶ 35.
This Court rejected in Cates the notion that acquiescence or “implied consent” could be
“inferred from a defendant’s ‘statements or silences’ or a failure to object to the
15
termination.” Cates, ¶ 34 (quoting Keating, 278 Mont. at 227-29, 924 P.2d at 1302-03).
Instead, this Court held that a retrial is not barred when the defendant’s affirmative
conduct, combined with the totality of the circumstances, demonstrates a waiver of the
right to object to the termination of trial proceedings. Cates, ¶ 35. Our focus was on the
totality of the circumstances surrounding the termination of the proceedings and whether
the defendant’s affirmative conduct demonstrated a waiver of the right against retrial. In
Cates, this Court rejected the approach that a waiver could be implied only from a
defendant’s “silence or passive assent.” Cates, ¶¶ 35, 36.
¶24 In Cates, we held Cates could be retried because he affirmatively waived his right
to object to the trial’s termination. Cates, ¶ 36. Our decision was based on the totality of
the circumstances, but of primary significance was the fact that Cates moved for a
mistrial on two separate grounds before the district court declared a mistrial sua sponte
following the prosecution’s motion for a mistrial. Cates, ¶¶ 9-11, 36, 39-40. We decided
that Cates’s mistrial motions “demonstrated that he was clearly willing to give up his
valued right to have his trial completed by the particular tribunal which was sworn and
impaneled . . . which right is at the core of the constitutional protection to be free from
double jeopardy.” Cates, ¶ 36 (citing Dinitz, 424 U.S. at 606, 96 S. Ct. at 1079) (internal
quotations omitted). Cates had the opportunity, after the district court declared a mistrial,
to be heard and object, but he did not withdraw his previous motions for a mistrial or
otherwise object. Cates, ¶ 36. Instead, one of Cates’s attorneys “affirmatively offered
that he had nothing to say” and the other “thanked the prosecution team for coming
forward.” Cates, ¶ 36. We decided those circumstances amounted to more than “mere
16
silence or passive assent” and were sufficient to demonstrate an affirmative waiver of
Cates’s right to object to the termination of the proceedings. Cates, ¶ 36.
¶25 Considering the totality of the circumstances in this case and evaluating any
affirmative conduct by Huertas, we conclude a waiver of Huertas’s right to object to the
termination of the proceedings has not been demonstrated. The specifics of this case are
notably different than those of Cates. Unlike in Cates, where the defendant requested a
mistrial on two separate grounds prior to the court’s ruling, here Huertas never requested
a mistrial. Thus, Huertas did not demonstrate a willingness to give up his right to have
his trial completed by a particular tribunal the way Cates did. Additionally, in Cates we
found it important that Cates had the opportunity, after the court declared a mistrial, to be
heard and object. The same opportunity to be heard was not present in this case, as
Bazant was interrupted several times when she tried to state Huertas’s position regarding
the mistrial. As Bazant attempted, multiple times, to emphasize that an investigation into
the events of the subpoena’s service needed to occur, the Judge simply highlighted the
fact that she had already decided that those circumstances had no bearing on the PFMA
trial.
¶26 Furthermore, none of Huertas’s actions or the statements of his attorney can be
construed as affirmative conduct waiving his right to object to the termination of the
proceedings. Bazant’s comments such as, “I do hate to go forward . . . in such a manner
that we’re going to . . . cause some problems later;” “I think it does need to go forward”
for more investigation; and “I want to see what’s on [the body camera]” do not amount to
affirmative conduct evidencing a waiver by Huertas of his right to object to the
17
termination of the proceedings. The City and Bazant were both focused on investigating
the circumstances of the subpoena’s service, while the Judge had already decided nothing
improper occurred and moved on to declaring a mistrial before the parties were able to
precisely state their positions or properly object.
¶27 Where Huertas did not request a mistrial, made no affirmative statements waiving
his right to object to the termination of the proceedings, and was frustrated in his
opportunity to be heard, we cannot conclude that a waiver has been demonstrated.
Therefore, retrying him for the PFMA charge would violate his right to be free from
double jeopardy.
CONCLUSION
¶28 Retrying Huertas for the PFMA charge would violate his federal and state
fundamental constitutional rights to be free from double jeopardy. There was no manifest
necessity to discontinue the trial and Huertas’s conduct did not demonstrate a waiver of
his right to object to termination of the proceedings and to a retrial. The Municipal
Court’s denial of Huertas’s motion to dismiss the PFMA charge is reversed and the case
is dismissed with prejudice. Accordingly,
IT IS ORDERED that the Municipal Court’s February 7, 2017, Order Denying
Motion to Dismiss for Violation of Right to Due Process and/or Right to be Free from
Double Jeopardy is REVERSED.
IT IS FURTHER ORDERED that Municipal Court of the City of Billings, Case
No. TK 2016-4035, is DISMISSED with prejudice because retrying Huertas would
violate his constitutional right to be free from double jeopardy.
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The Clerk is directed to provide a true copy of this Opinion and Order to all
counsel of record, to the Clerk of the Thirteenth Judicial District, the Clerk of the Billings
Municipal Court, and to the presiding judges.
DATED this 31st day of October, 2017.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
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