STATE v CLINE
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NO. 93-558 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1996 STATE OF MONTANA, Plaintiff and Respondent, v. J/\~p.i SHAWNMATTHEWCLINE, APPEAL FROM: / i'; ~pJl& District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Thomas A. Olson, Judge presiding. COUNSELOF RECORD: For Appellant: Herman A. Watson, Bozeman, Montana III, Watson & Watson, For Respondent: Hon. Joseph P. Mazurek, John Paulson, Assistant Helena, Montana Attorney Attorney General, General, Mike Salvagni, Gallatin County Attorney, Marty Lambert, Deputy County Attorney, Bozeman, Montana Submitted on Briefs: Decided: Filed: December 7, 1995 January 18, 1996 Justice Charles Defendant Shawn Matthew the Eighteenth him guilty reverse E. Erdmann delivered Judicial of appeals District robbery, Court, aggravated of the Court. from a jury Gallatin assault, verdict County, and of finding burglary. We and remand. The issues 1. on appeal 2. Court err in denying based on newly discovered evidence? Did the District concerning concerning Court the age of Cline's Did 3. the District Court raised in admitting Court err tracks of tire on Issue err in a new trial, in Issues motion expert at the crime 1 is dispositive. for Cline's for testimony fingerprint? District the origin Our holding matters are as follows: Did the District a new trial the Cline the opinion allowing testimony scene? As we are remanding we address the to evidentiary 2 and 3. FACTS At approximately 4:40 Jim Storey went to the Kountry to prepare the cafe who had been given order to 6:00 a.m. turn acetylene Korner opening. of October Cafe west of Bozeman in order Storey is a local farmer-rancher the key to the cafe by the owner, on the grills 12, 1992, and make coffee prior Betty Nason in to the cafe's he noticed there opening. As Storey was a hole for on the morning a.m. approached in the door torch burning the back of the cafe, where the deadbolt as he entered 2 had been. the cafe Be heard an and saw an acetylene torch tank tried to in get into back stepped A few on a cart from seconds front his the the and face. could said the the door. hell out of office long, dark him on the Storey open described with office. the "Get of the not Storey struck Storey to a regained Bozeman holding the head there." his hair. with He hand man as somewhat brown on Robert Department assembled then Cline. Storey Christie The a hammer based that Cline's but assailant's, he could The sheriff's fingerprints drawer register. and old new cash retrieved the the in man and drawer tray to arrived from to fled lower not portion Nason the old not have drawer. each in Shawn face At were and trial, similar to identification. identifiable discovered shed Storey defendant, of and would a storage to and eyes. a new cash did Sheriff's and build burglary it assailant, of the to obtain for the make a positive scene. Billings he showed hairstyle He was County Gallatin hairstyle She ordered drawer the 911. of a photo on his the called flown which was unable crime had been damaged cash register office from the included Cline testified later line-up covered he description of a photo Storey identified and Storey's The line-up hospital. Matthew consciousness hospital Based Lieutenant the door himself treatment. the but into scene. taken his leading a man came out Storey, When the hoses office lower than approached the later of shorter with latent that not cash back fit the into drawer and removed behind the a money At When cafe. tray that the so Nason point she discovered found an envelope by underneath the sheriff's deputies. deposits for pie when magnetic powder, the from inside Cline's When flap washed dishes with the the to pies. been keep Using a fingerprint print was that of that he had long before this the could worked Cline stopping the morning testified that few a there in Nason cafe for from of two money, or customers no reason confirmed but initial that why that he had no including worked of Cline he had first station see or interview Roxanne presence crime. not the that claimed cafe that envelope. Roxanne the the think handle sister-in-law, at a service the or after testified also in any money the at deposit burglary. he did been taken times register explain of had not envelope. his Roxanne but stated He could Christie not on cafe till. tin he had given while used a latent The be on the pie contacted envelope. the he had not cash that envelope. at dishes him claimed raise Cline the would work Cline Christie, entered had washed involved by he had never fingerprint to to had not was purchased envelope. He said and had never reason envelope customers the He indicated months. Cline of which thumb. a year. his The was able interviewed previously three Christie the right over tins money tray across The talk owner with Cline at the his had and told an envelope cafe fingerprint never learned street of the Cline on the given of the and Cline her the burglary from service that the an cafe station morning. On November to 16, 45-5-401, § § 45-5-202, MCA Cline the morning early Cline's was unable trial to was Court sentenced added five a dangerous Court new trial based forward with the to to 5 45-6-204, 1992, 2, MCA he had with 1993, on April on July on each 12, 6, his spent wife, her ten years years count the 7, jury found 1993, the Cline District on each count The District suspended. consecutively jury a second jury imprisonment to run when the 1993, 1993, On September three 1993, 29, Cline filed 18, 1994, Cline this a determination that to to On February alleged On March pursuant claiming On July charges. and requested for pursuant for to Court the use of weapon. Court. appeal and with On September this 11-12, concluded Cline years defense, a verdict. three concurrently, assault of October trial commenced, on all aggravated pursuant robbery friend. reach guilty with on an alibi hours first was charged and burglary relied and a young brother, Cline (1991), MCA (1991), (1991). run 1992, 15, District on newly Court to as to a previously information 1994, remand Cline's a case he would hearing evidence. 5 him to had (Cline) motion on appeal to the and remanded the to motion, the newly the District a Cline voluntarily from with stay be entitled In his witness exculpating for the of a motion evidence. unknown we granted Court filed whether discovered a notice come crimes. the case discovered On July on Cline's 1994, 8 and 12, 1994, the District motion Cline for filed a motion based on the newly District Court 1995, denied discovery Cline's with the District evidence. a hearing motion conducted of the new evidence. discovered conducted Court for On August Court for a new trial. 6, a new trial On September on the matter hearings 8, 1994, the and on January 11, This appeal followed. ISSUE 1 Did the District trial discretion err in denying discovered based on newly Granting evidence? or denying a motion of the district Gambrel (1990), Lewis (1978), "[tlhe discovered Court." 177 Mont. of (Citing 563, 160 474, rests Butler P.2d discovered evidence, abused its discretion Cline's motion for a new is within the MCA; State v. In State v. a new trial Section 46-16-702, 84, 91, 803 P.2d 1071, 1076. granting evidence for court. 246 Mont. matter Mont. Court 483, or 582 P.2d 346, refusing largely Valley Based in denying Irr. on the we must determine Cline's we held that for newly a new trial in the discretion v. Paradise 481). 351, of the District Dist. nature whether motion (1945), of the the District for 117 newly Court a new tria1.l IIn view of our recent decision in State v. Gollehon (Mont. 1995), 52 St. Rep. 1182, regarding the time requirements for filing motions for new trial under § 46-16-702, MCA, and our retention of two judicially created exceptions to that rule, it is appropriate that we point out that the issue of the timeliness of Cline's motion for new trial was neither raised in the District Court nor in this Court on appeal and, accordingly, we decline to address that issue here. Moreover, our order staying Cline's appeal and remanding his motion to the District Court for consideration was entered well before our decision in Gollehon and was consistent with our decisional law then in effect. 6 After Cline's individual which had conviction allegedly he had been Cline's cousin filed a convicted. 1992. Cafe Dwaine Campbell of the that Smith was the the source used the by the by the Campbell the from that Smith was testified unidentified had committed customer the was out Lesh, also in of crimes Smith told Korner the received about Kountry Korner on the a Bozeman pawn shop for Cline had been 7 new trial told his previously to testify and September same in that a second the October Charles Campbell hearing which in Cafe. was involved an informant in July him in Billings Lesh was unavailable at the Kountry that Easterday source at source detective, had involved Robert had told a private were conducted an anonymous Sergeant from Department. he 12, 1994 that was Harold that that the a on October assault a reliable Smith, the Department into Cline, committed in July crimes. hearings had for theft, Leroy hearing word information testified call Easterday Cafe (Smith) Sheriff's information that Dwaine misdemeanor James and another offenses 1994, for affidavit from at the Sheriff's time his one who had broken testified Korner for in County indicating Kountry he that the 18, that that information 1993 he had received committing robbery stated he had received Easterday, him Gallatin that Campbell told aware a sentence burglary, also to indicating had Korner became On February affidavit felon, Kountry admitted who was serving sworn convicted he time 1994. telephone indicating Cafe robbery. motion that him that convicted. an Smith In summary, uncovered four months with providing for which this appeal Cline filed had Cline possessed. The your the by stating client . .'I discovered and does not The exculpate District in evaluate v. relied Green0 Cline's evidence. must come (2) have it was not discovered earlier; produce evidence is facts in not for witness whose absence to stay details his on the authorities writing to Cline's exculpatory was and still for is an additional want the of long-standing new Green0 that suspect of evidence there must be evidence is for; and the is, it by 8 evidence the to newly evidence trial; evidence that trial; at was not it would (4) speak the as to trial; (5) the affidavit of the to have been newly (6) the 1052, the does not the set since another was evidence alleged (1) so material upon supported on defendant that cumulative--that 342 P.2d are: the is criteria based criteria result which 580, trial diligence trial accounted Faced Court the in 135 Mont. a a different merely new this suggests knowledge (3) relation motion its the through probably for The to sentenced. nothing on our (19591, motion discovered the Cline. Court State merely and believed position Cline Lesh, seeking absolutely State's evidence that responded is The and discovery attorney "there . newly forth county Smith Cline 1993, had committed that requested which July Campbell, convicted for information in Cline, been a motion exculpatory request conviction information new evidence, and his sources--Dwaine Easterday--all crimes after must discovered, or not as be such will All only six State tend to impeach criteria character or credit must be met or the defendant's v. Arlington (citing the State (1994), v. Cyr 265 Mont. (1987), motion 127, 149, 229 Mont. 337, of a witness. will fail. 875 P.2d 307, 340-41, 320, 746 P.2d 120, 122-23). The District evidence not Court satisfied criteria applicable. failed concluded, to meet the requirements the proposed produce criteria evidence a different the unidentified hearsay. crimes call be admissible such testimony determining testify. witness would and The and that weighing court a new trial. the concluded neither Lesh was so material present that his it jury would result from confession those was not that of statement determined with of nor that such an admission Court Dwaine testimony noted information he denied credibility that probably inconsistent the that in the pawn shop was the District merely would alleged as a prior Nevertheless, determined it and the Smith's if 6 was the evidence The court Easterday that that that to Campbell acknowledged discovered criteria Court at a new trial. under Rule 801(d) (1) (A), M.R.Evid., at a new trial. newly 3 and 4. so material man who spoke with might however, 3, the District result The court Cline's of criteria was not the anonymous telephone that 1, 2, and 5, and that The court In evaluating the determined of in Cline's the that task of who might a credible Smith and/or acquittal at In evaluating evidence criteria indicating 4, Smith evidence determined that Cline did speak as to facts at not trial." (Citing We do not newly discovered Cline's not the evidence test. no lack of of was presented to other which what and the is The new evidence, due diligence new and distinct evidence not tends evident such to exculpate trial. it may boil a determination and not the jury on the convicted Cline's should in Cline's evidence Cline perpetrator. discovered remain trial than with to the the the trial. crimes The new facts which were Court District of witness within due to confession of at the cumulative purported commission a question was first on on the unable Subsequent evidence trial that credibility, province to to material could not jury in The presented. based fingerprint Storey we agree down to more speaks the 3 and 4 of after presented and that of the jury court. The based Cline While is to his any evidence was evidence conclusion Smith's points new evidence there well part, jury. court the criteria discovered the The be 1055.) satisfy on Cline's from at essentially that evidence at that merely charges. that Court's to would to which District fails Green0 the demonstrate 342 P.2d determined crimes of in relation with Court the denial Greeno, agree District committed cumulative "does of the circumstantial deposit make the to a positive his 10 the for the fact and despite Cline trial except identification trial, case a verdict second evidence, envelope, second reach of obtained and exculpatory in the newly nature which its the did verdict. would at jury not The newly probably, another evidence not newly consider in is reaching so material produce necessarily, the that criteria, abused trial. to that a different it result trial. Green0 Court opportunity discovered albeit We determine six have the and therefore, its discretion Accordingly, and on this discovered we conclude in denying we reverse basis remand the evidence the that Cline's to ISSUE the the motion District case satisfies Court District for on this District Court all for a new issue a new 2 trial. Did the concerning District the During Wieners, age of the fingerprint testified that Cline to or two claims evaluate laid unrelated Cline Moenssens, age undermined prior to to expert testimony is again, of his to tin is a latent there as to is supports a law his position with age of Wieners about either way." scientific procedure Wieners' theory under the probably leeway fingerprint, break-in Michael envelope. print no reliable defense allowed testify deposit a fresh there Court testimony that the professor and 11 innocuous fingerprint break-in. the the District on the pie But, because the the this old. that significantly was think admitting technician, found "I in fingerprint? trial, fingerprint Cline's err Cline's second a FBI a month Court an circumstances affidavit consultant from on Andre fingerprint whose identification, possible to determine support for motion the concluding that due diligence that appeal argues that standard set allow expert State Moore v. 268 evidence in v. 125 L. Mont. 20, 885 of Cline's second Daubert 1994, over a year State v. Walters standard after argument that the allowing Wieners' Co. (1983), District 63, P.2d P.2d testimony. 12 the adopted the 84, just Court was evidence. 477; State the did not in The State 185, 497, 657 P.2d abuse its v. State prior decided 806 P.2d not Inc. whether However, was convicted. did for determining 457. Moore Court criteria has 891 This 202 Mont. further scientific decided trial. 247 Mont. testimony cases. in novel was until Cline (1991), Power 2d 469, 270 Mont. (1995), argues Dow Pharmaceuticals, concerning Daubert the Montana Ed. the Court Merrell Cline Cline criminal this by through Wieners' meet that affidavit information. not that adopt the in refused information of is trial Court the it however, the any event, did Daubert 2786, Weeks, In affect of notes commencement v. trial. value testimony (1994), correctly the acknowledges 113 S. Ct. (19931, in testimony in after have discovered scientific forth court The District prejudicial Wieners' State the that Cline, contained during probative of The or testimony a fingerprint. a new trial. could the the introduction See Cline Weiners' to information before outweighed to age of his of rebuts affidavit consider on the Moenssens' presented to opinion to the formally November relies on and Barmeyer 594, for discretion its in This Court has decisions are (1992), 253 Mont. It must evidence to be noted the age of a fingerprint techniques Certainly this all Daubert admit expert examination United denied, Barmeyer, it In Daubert, "general its Cir. 96 S. the conformity Ct. case pertained "general with be attacked 46 L. spirit to is better same manner to as other by cross- 598 (quoting 466, cert. of Ed. 2d 391). test, acceptance" the "it 519 F.Zd 463, 456, to we specifically 657 P.2d at 19751, be used evidence. Moore, to the In holding the new rules of rejected the that 657 P.2d at 598. the United acceptance" weight Barmever, (4th 1019, Barrnever, scientific the subject only In Barrnever we held that v. Bailer in to should in aging not of Barrnever as that and allow we rejected fingerprint the evidence. test evidence We apply scientific is in in to determine powder. novel test However, is possible testimony Daubert vitality 423 U.S. was not evidence. the and refutation." States be Daubert scientific testimony it of novel evidence. relevant Currie fingerprint evidence. magnetic expert and the the continuing scientific to the admissibility the scientific judicial v. consider case because we consider context When we adopted noted that McNeil we do not is whether scientific standard determine that utilizing to this in rule retroactively. to be novel case the issue standard general 9, 830 P.2d 1241. in general Daubert the be applied also the present adopted States standard in 13 Supreme Court favor of the also more liberal test embodied in judge determine (1) to Rule scientific whether or Fed.R.Evid., evidence to evidence ensure be and not only of fact to at 470 trier We noted district and to 885 P.2d the Moore, 2796). that court all to but Rule 702, screen such testimony scientific relevant, trial testify or reliable. trial court's assessment of offered, we adopted Moore, in Moore factors: been to rate the of error in and the using theory 885 of (d) whether or rejected in the 885 P.2d at 470-71 (citing the or of following can technique (c) the scientific standards the reliability or technique theory a particular accepted Moore, the and publication; maintenance and the whether review operation; generally field. (b) peer existence technique's (a) whether tested; subjected been any assist the to evidence has potential and is nonexclusive been at proposing issue. the that the scientific four Ct. requires 470. To guide the in test is (2) will requires admitted at S. This expert a fact 113 still the that determine Daubert, P.2d Fed.R.Evid. knowledge understand (citing 702, has known or technique controlling or technique theory the has particular Daubert, scientific 113 S. Ct. at 2796-97). In trial adopting court preliminary reliable that the admits showing that test, scientific methodology." such Daubert an inquiry expert the Moore, must we concluded testimony, expert's opinion that 885 P.2d remain flexible. 14 at 471. there is "before must premised We noted, a be a on however, a "Not every error methodology should in the application provide the basis that error negates principle itself." Moore, 885 P.2d 1993), 3 F.3d In regarding experienced a State of cannot based The criteria, experts could weight the court. the sound (citing 1087). discretion of the District disagree, Court, that with the the on the admissibility Stewart We conclude allowing trial (1992), that the Weiners' be for court. 253 Mont. District testimony fingerprint. 15 complete on while accuracy, the age of and not applying the was an area would be subject of the of the 475, where to witnesses and to jury not evidence Moore, Court the experience this credibility should the that regarding testimony testimony of fingerprints. treatises although that their v. Cir. foundation scientific examiner's found and that discretion in of an opinion on of established Rulings State (8th necessary age be established correctly cross-examination, the Martinez the a number can proffer print investigation. v. the The treatises print Daubert established and quoted examiners latent States determining technology. a latent United 1198). issue referenced fingerprint (quoting the case, the Wieners age of at 471 1191, this in the application of a particular warrant exclusion. An alleged error of a reliable methodology should for exclusion of the opinion only if the basis for the reliability of the decide, are left to at 471 885 P.2d 479, 833 P.2d did not abuse its the age of the regarding 1085, ISSUE Did the the origin of The left is provided testified which leave also on that testified cafe dual on direct of morning relying Cline and objection discretion. 301, 864 P.2d collection on both twin axle of that The the his 1263. trial. which October 1992. garbage trucks vehicle. company prosecutor and company during sides 1257, during Cafe uses examination 12, when asked 1992. Kountz the route then requested Kountz serviced asked no the further truck the made sheet objected Kountz which to court to specifically testified its had that stop not Kountz's strike he was not and been about that offered into as being testimony the he was The testimony. was overruled. On appeal, reversible Kountz of of a garbage Cline on a company hearsay judge Kountz. present evidence. trial a witness Korner and the as Fridays. of October personally relevant abuse of 293, company On cross-examination, the concerning is of a showing Kountz tracks and discretion Kountry his tire Mondays questions the evidence 262 Mont. manager to testimony scene? whether Frank general service crime absent called the the sound (1993), State in at the aliowing err of to Gollehon The Kountz tracks be overturned v. Kountz tire is not State Court determination admissible will District 3 error did not Cline by have contends admitting personal that Kountz's knowledge 16 the District Court Cline testimony. as to committed whether claims garbage was hauled did away he have Cline its from that closing with were that tire The concerning the on out truck that tire that the tracks of trial on error newly as to new trial. Nevertheless, since it whether may arise in any in at the refuting Cline's State new trial evidence or dual make The tire any State tracks came admitted that been compared to the garbage been is made by the that of being will we will not which remanded issue who may testimony it parties person Cline grounds, track both any who admission tire a vehicle argument. argues case to scene Christie have since found access crime of the evidence the a stop. testimony present closing had not this discovered speculative its on the Since not the of The nor crime. at could cafe. elicited. the mention tracks thus 1992, such tracks truck, did in other tire the a claim himself only tire with found tracks 12, Kountz's himself it cross-examination burglarized predicate that use dual garbage than tracks the the October confirming to had committed tire of the and other of record intended the counters the Cline's photographs of tracks to morning to show that those State points State someone dual reference on the business the argument scene argument cafe a legitimate argues crime the for is he a new somewhat in the issue and briefly address the hearsay testimony, briefed arise the issue. Since conclude constitutes Cline that himself he reversible cannot elicited the argue error. on alleged appeal Furthermore, 17 that our its review we admission of the record fails hearsay testimony was to indicate any and any element of We have convicted. that reasonable possibility contributed to v. Earl State the Brush (1987), was error, that of the to the to be moot. in denying evidence. proceedings offenses we note of his District P.2d 251, Cline there evidence 790 alleged which if reversible Court was might 464, State 466 741 P.2d (quoting 1333, consistent also verdict As we are a new trial, District for a new trial this with case this to 1335). District opinion. aa Justice 18 District made remanding abused based testimony the we determine Court the We concur: the appealed a directed for for of a have error."' admission Cline the motion We remand the case-in-chief. We conclude Cline's that motion State's if for "I [olnly 247, the error. conclusion, closing 283, even denial back 279, was harmless Court's the there 228 Mont. conclude it In is Mont. between inadmissible conviction 242 We therefore stated that (19901, v. relationship its on newly Court at the this the case issue discretion discovered for further Justices / 19
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