                                                                                           October 30 2012


                                         DA 11-0744

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2012 MT 241



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

ALVIN JAMES DUNCAN,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Seventh Judicial District,
                      In and For the County of Richland, Cause No. DC 04-48
                      Honorable Katherine M. Bidegaray, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Joseph P. Howard P.C.; Attorney at Law; Great Falls, Montana

               For Appellee:

                      Steve Bullock, Montana Attorney General; C. Mark Fowler, Assistant
                      Attorney General; Helena, Montana

                      Mike Weber, Richland County Attorney; Sidney, Montana



                                                  Submitted on Briefs: August 22, 2012

                                                             Decided: October 30, 2012


Filed:

                      __________________________________________
                                        Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1    This is Alvin James Duncan’s (Duncan) second appeal to this Court. In the prior

appeal, we affirmed Duncan’s conviction of two counts of felony sexual assault and

remanded the case for resentencing. State v. Duncan, 2008 MT 148, 343 Mont. 220, 183

P.3d 111.    The District Court for the Seventh Judicial District, Richland County,

subsequently granted Duncan’s petition for postconviction relief on the grounds of

ineffective assistance of counsel and prosecutorial misconduct. In this interlocutory

appeal, Duncan challenges the District Court’s order denying his motion to dismiss the

criminal charges for which the State intends to re-prosecute him.

¶2    The only issue on appeal is whether the District Court erred when it denied

Duncan’s motion to dismiss the criminal charges on double jeopardy grounds. “[W]e

will accept an interim appeal for the sole purpose of considering the merits of the

defendant’s double jeopardy claims.” State v. Barron, 2008 MT 69, ¶ 8, 342 Mont. 100,

179 P.3d 519. We accept the appeal and affirm.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3    The factual background of Duncan’s alleged offenses and prior conviction is set

forth in this Court’s previous opinion. Duncan, ¶¶ 8-14. Duncan was charged with

sexually assaulting his stepdaughter, C.S., and her friends, V.G. and N.M., all minors.

The jury convicted him of the charges involving V.G. and N.M., and acquitted him of the

charges involving C.S. Duncan, ¶ 14. After his conviction was affirmed on direct

appeal, Duncan filed pro se a petition for postconviction relief. The District Court

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appointed counsel and received supplemental briefs. The court granted Duncan’s petition

for postconviction relief because it determined that his trial counsel provided ineffective

assistance when he (1) “fail[ed] to object to the Prosecutor’s statements in closing

arguments suggesting that Duncan was required to ‘refute’ the State’s proof”; and

(2) “mischaracterize[ed] the burden of proof in closing argument.” The court concluded

that those failures “deprived Duncan of a fair trial” and violated his rights to counsel and

to due process under the state and federal constitutions. Mont. Const. art. II, §§ 17, 24;

U.S. Const. amends. VI, XIV. The court granted Duncan a new trial and ordered that his

sentence be vacated and his guilty verdict stricken from the record. The State later

notified Duncan that it intended once more to prosecute him for committing the crimes of

which the jury had found him guilty.

¶4     Duncan moved to dismiss the charges against him, arguing that, under our cases

applying the Supreme Court’s holding in Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct.

2083 (1982), “the Double Jeopardy Clause affords protection where prosecutorial

misconduct prevents an acquittal by achieving a conviction by improper means.” The

court denied Duncan’s motion because it concluded that he “fail[ed] to establish that the

objective facts and circumstances of the case show the prosecutor intended to goad [him]

to move for a mistrial” as required by Kennedy. On appeal, Duncan urges this Court to

conclude that his constitutional guarantee to be free from double jeopardy prohibits the

State from prosecuting him for a second time.




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                               STANDARD OF REVIEW

¶5     The grant or denial of a motion to dismiss in a criminal proceeding “is a question

of law, which we review de novo to determine whether the district court’s conclusion of

law is correct.” State v. Otto, 2012 MT 199, ¶ 7, 366 Mont. 209, 285 P.3d 583 (quoting

State v. Allen, 2009 MT 124, ¶ 9, 350 Mont. 204, 206 P.3d 951). “A double jeopardy

claim presents a question of constitutional law over which we exercise plenary review.”

State v. Brooks, 2010 MT 226, ¶ 11, 358 Mont. 51, 243 P.3d 405. We consistently have

held that “if a district court reaches the correct result, then we will uphold the court’s

judgment regardless of the reasons for its decision.” Parini v. Missoula Co. High Sch.,

284 Mont. 14, 21-22, 944 P.2d 199, 203 (1997).

                                      DISCUSSION

¶6     The Double Jeopardy Clause of the Fifth Amendment of the United States

Constitution provides: “[N]or shall any person be subject for the same offense to be twice

put in jeopardy of life or limb.” The Clause applies to the states through the Fourteenth

Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062 (1969).

Montana’s Constitution establishes similar double jeopardy protections, stating: “No

person shall be again put in jeopardy for the same offense previously tried in any

jurisdiction.” Mont. Const. art. II, § 25. “[C]entral to the objective of the prohibition

against successive trials is the barrier to affording the prosecution another opportunity to

supply evidence which it failed to muster in the first proceeding.” U.S. v. DiFrancesco,




                                         4
449 U.S. 117, 128, 101 S. Ct. 426, 432-33 (1980) (quoting Burks v. U.S., 437 U.S. 1, 11,

98 S. Ct. 2141, 2147 (1978)) (internal quotations omitted).

¶7     It is well established that “[w]hen a mistrial is granted on the defendant’s motion

in a criminal case . . . the Double Jeopardy Clause ordinarily does not bar the State from

trying him or her again on the same indictment.” State v. Mallak, 2005 MT 49, ¶ 18, 326

Mont. 165, 109 P.3d 209. A “narrow exception to this rule” occurs “[o]nly where the

governmental conduct in question is intended to ‘goad’ the defendant into moving for a

mistrial . . . .” Mallak, ¶ 18 (quoting Kennedy, 456 U.S. at 676, 102 S. Ct. at 2089).

Although Duncan acknowledges that he did not move for a mistrial, he argues that “there

should be no distinction” between a defendant “who successfully requests a mistrial

because of the prosecution’s misconduct” and defendants who are “deprived of a fair trial

because of prosecutorial misconduct and attendant ineffective assistance of counsel, then

successfully overturn their convictions via postconviction relief.”

¶8     The State responds to Duncan’s argument by asserting that, “[b]ecause no mistrial

was declared in Duncan’s trial, the instant case does not present the scenario permitted

under Oregon v. Kennedy.” The State argues that we should not expand the Kennedy

exception, which we adopted in Mallak, to convictions overturned on postconviction

relief because this Court already has held that “a defendant is not subjected to double

jeopardy by virtue of his retrial” when his judgment of conviction has been set aside at

his request. See State ex rel. Nelson v. Ellsworth, 141 Mont. 78, 81-82, 375 P.2d 316,

318 (1962). The State cites § 46-11-505(2), MCA, as additional support for its position.

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¶9     Duncan contends in his reply brief that the State’s arguments are not properly

before this Court because the State did not make those same arguments to the District

Court. Duncan argued to the District Court in his motion to dismiss that “there should be

no distinction between a defendant who . . . is deprived of a fair trial because of

prosecutorial misconduct and attendant ineffective assistance of counsel, then

successfully appeals his conviction on the same basis, and a defendant who successfully

requests a mistrial because of the prosecutor’s misconduct.” He advances the identical

argument on appeal. The State contended in District Court that Duncan had not satisfied

the Kennedy/Mallak standard of proving that the prosecutor “goaded” him into seeking a

new trial. Duncan’s appeal squarely presents the question whether the Kennedy standard

applies when a new trial has been granted on postconviction relief rather than on a

motion for mistrial. The State’s reference to additional authority in responding to his

argument does not pose an obstacle to our plenary review of the issue Duncan raises on

appeal. See State v. Montgomery, 2010 MT 193, ¶ 12, 357 Mont. 348, 239 P.3d 929.

¶10    Duncan’s proposed exception—that a defendant’s double jeopardy protections bar

retrial if his conviction is reversed on postconviction relief due to prosecutorial

misconduct—directly conflicts with Montana law.             Section 46-11-505(2), MCA,

establishes that “[a] prosecution is not a bar if . . . the former prosecution resulted in a

judgment of conviction that was held invalid in a postconviction hearing.” Duncan does

not challenge the constitutionality of the statute.       “Absent a direct constitutional

challenge to the statutes, this Court’s role is simply to interpret and apply the statutes as

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written and consistent with legislative intent.” Ford v. Sentry Cas. Co., 2012 MT 156,

¶ 68, 365 Mont. 405, 282 P.3d 687 (citing §§ 1-2-101, -102, MCA). We hold that, under

the express terms of § 46-11-502(2), MCA, the State has the option of re-prosecuting

defendants like Duncan whose convictions are set aside on postconviction relief.

¶11   It is “very clear from previous holdings of this court that a reversal of a judgment

of conviction upon appeal and a retrial does not constitute double jeopardy.” Ellsworth,

141 Mont. at 81, 375 P.2d at 318. We have held, for example, that “after a verdict or a

judgment of conviction or acquittal, the defendant in a criminal case has been in jeopardy

and may not be tried again for the same offense, except in a case of a new trial which has

been granted or ordered.” State v. Keerl, 33 Mont. 501, 516, 85 P. 862, 865-66 (1906)

(emphasis added). When a defendant is granted a new trial on appeal, the “defendant is

not placed in a new jeopardy by the second trial, but is merely subjected to the same

jeopardy that he was in on the first trial.” State v. Aus, 105 Mont. 82, 86, 69 P.2d 584,

585 (1937). That principle applies with equal force regardless of whether a defendant

secures a new trial on direct appeal to this Court or on postconviction relief. Duncan

presents no convincing authority to the contrary.

¶12   Although Duncan argues that the Kennedy exception should be extended to

convictions that are reversed on postconviction relief due to prosecutorial misconduct, his

argument directly conflicts with the Supreme Court’s opinions in Kennedy and other

cases. The Kennedy Court noted that it “has consistently held that the Double Jeopardy

Clause imposes no limitation upon the power of the government to retry a defendant who

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has succeeded in persuading a court to set his conviction aside, unless the conviction has

been reversed because of the insufficiency of the evidence.” Kennedy, 456 U.S. at 677

n. 6, 102 S. Ct. at 2090 n. 6 (citing DiFrancesco, 449 U.S. at 130-31, 101 S. Ct. at 433-

34) (emphasis added). Duncan’s conviction was not reversed because of insufficient

evidence. His double jeopardy argument is unpersuasive because “[t]o require a criminal

defendant to stand trial again after he has successfully invoked a statutory right of appeal

to upset his first conviction is not an act of governmental oppression of the sort against

which the Double Jeopardy Clause was intended to protect.” DiFrancesco, 449 U.S. at

131, 101 S. Ct. at 434 (quoting U.S. v. Scott, 437 U.S. 82, 91, 98 S. Ct. 2187, 2194

(1978)).

¶13    The District Court held, and the State does not dispute, that Duncan’s

constitutional right to a fair trial was violated by prosecutorial misconduct and by

ineffective assistance of counsel. While a defendant has a constitutional right to a fair

trial, society maintains an interest in the enforcement of its criminal codes and “[i]t would

be a high price indeed for society to pay” if a defendant were granted immunity from

re-prosecution because his conviction was overturned on postconviction relief.

DiFrancesco, 449 U.S. at 131, 101 S. Ct. at 434 (quoting U.S. v. Tateo, 377 U.S. 463,

466, 84 S. Ct. 1587, 1589 (1964)). Any constitutional injury that Duncan suffered at his

first trial can be cured by a new trial, which the District Court has granted.




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                                    CONCLUSION

¶14   We decline to adopt Duncan’s suggested expansion of our double jeopardy

doctrine because it conflicts with § 46-11-505, MCA—the constitutionality of which

Duncan does not challenge—and with our prior opinions and the Supreme Court’s

opinion in Kennedy. We hold that Duncan’s constitutional right to be free from double

jeopardy does not prohibit the State from re-prosecuting him after his conviction was

overturned by the postconviction court’s determination of prosecutorial misconduct and

ineffective assistance of counsel. The District Court’s December 9, 2011 order denying

Duncan’s motion to dismiss on double jeopardy grounds is affirmed and the case is

remanded for further proceedings.

                                                /S/ BETH BAKER

We concur:


/S/ MIKE McGRATH
/S/ BRIAN MORRIS
/S/ JIM RICE




Justice James C. Nelson dissents.

¶15   I agree that Duncan did not challenge the constitutionality of § 46-11-505(2),

MCA, and therefore waived that argument. Opinion, ¶ 10. Thus, I leave that issue to be

decided in a future case where the argument is properly raised.

¶16   That said, I cannot join the Court’s analysis at ¶¶ 12-14.     In my view, the
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prosecutor did goad Duncan by undermining Duncan’s presumption of innocence with

his comments. Therefore, I believe that the prosecutor committed misconduct.

¶17      While society might pay a “high price” if a defendant’s conviction is overturned

on post conviction relief, Opinion, ¶ 13, society pays even more dearly when the

prosecutor—an officer of the court who should be seeking justice, and not merely a

conviction1—refuses to scrupulously respect the accused’s constitutional right to the

presumption of innocence and to a fair trial. In those cases, not only is the accused

victimized, but so also are society and the criminal justice system.

¶18      I dissent.


                                                   /S/ JAMES C. NELSON




1
    See State ex rel. Fletcher v. Dist. Court, 260 Mont. 410, 415, 859 P.2d 992, 995 (1993).
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