author: CHIEF JUSTICE TURNAGE JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. VERNON T. GREGOROFF, Defendant and Appellant.
    No. 97-192.
    Submitted on Briefs October 2, 1997.
    Decided December 29, 1997.
    54 St.Rep. 1469.
    287 Mont. 1.
    951 P.2d 578.

      JUSTICE TRIEWEILER specially concurring, joined by JUSTICE HUNT.
    For Appellant: Steven M. Hudspeth, Great Falls.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Cregg Coughlin, Assistant Attorney General, Helena; James A. Hubble, County Attorney, Stanford.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Vernon T. Gregoroff was convicted of driving under the influence of alcohol (DUI) in a jury trial in the Tenth Judicial District Court, Judith Basin County. He appeals. We affirm.

The issues are:

1. Did the District Court err in allowing Montana Highway Patrol Officer Lobdell to testify that in her opinion Gregoroff passed out while driving?

2. Did the court err in allowing Lobdell to testify concerning her opinion that Gregoroff was under the influence of alcohol to an extent that it diminished his ability to safely operate a motor vehicle?

3. Did the court err in allowing ambulance attendant Bernard Taylor to testify that Gregoroff acted like a belligerent drunk at the scene of his accident, on the way to the hospitál, and at the hospital?

4. Does cumulative error justify reversal of Gregoroff’s conviction?

On the evening of March 30,1995, Gregoroff overturned his pickup truck in a ditch west of Hobson, Montana. A local volunteer ambulance was dispatched to the scene.

Shortly before the accident, one of the ambulance attendants, Bernard Taylor, had seen Gregoroff come out of the Hobson Lounge and wander about the sidewalk, then get into his pickup and drive away. When the ambulance arrived at the scene of the accident, Taylor recognized Gregoroff and his pickup. Gregoroff was leaning against the pickup, assisted by a motorist who had come upon the scene. Gregoroff had a severe laceration on the side of his head, his scalp having been torn open and laid over to the side.

When the ambulance attendants attempted to bandage Gregoroff’s injury, he repeatedly pushed or slapped them away, saying, “I’m not hurt, my truck is upside down and I’m just drunk.” Gregoroff’s breath had a strong odor of alcohol, and his speech was slurred. He was belligerent and refused to get on a stretcher or into the ambulance until one of the ambulance attendants “got right in his face,” and he finally sat down on the stretcher. Gregoroff’s combative behavior continued when he was brought into a Lewistown, Montana, hospital emergency room about twenty minutes later.

Montana Highway Patrol Officer Lobdell arrived at the accident scene after Gregoroff had been taken to the hospital. At trial, she testified that the road was bare and dry and that she found no evidence that Gregoroff had taken any evasive actions with his vehicle before he left the roadway, drove 260 feet straight into the ditch, and then hit a three-foot-tall snow bank. Lobdell testified that it appeared the pickup then became airborne for sixty-five feet, coming down on its wheels and rolling onto its top before sliding into the snow and then onto the grass for another forty-five feet. There were no skid marks on the highway, nor was there any evidence of overcorrection or braking before the vehicle left the highway.

After completing her investigation at the accident scene, Lobdell went to the hospital to interview Gregoroff. She testified that he was belligerent, smelled strongly of alcohol, and exhibited quick changes in mood from upset and yelling to laughing and joking. Gregoroff told her he had hit a patch of ice on the highway. When she responded that the road was bare and dry, he laughed and said, “There must have been a deer, then.”

At trial, the State based its case against Gregoroff upon testimony by Taylor, Lobdell, and another ambulance attendant. The jury rendered a guilty verdict after about thirty minutes’ deliberation.

Standard of Review

This Court’s standard of review of a district court’s rulings on the admission of testimony, like other evidentiary questions, is whether the court abused its discretion. State v. Haskins (1994), 269 Mont. 202, 207, 887 P.2d 1189, 1192.

Issue 1

Did the District Court err in allowing Montana Highway Patrol Officer Lobdell to testify that in her opinion Gregoroff passed out while driving?

Lobdell testified that based upon her investigation of the accident, including the absence of evidence of evasive action or overcorrection, it appeared to her that Gregoroff passed out and fell asleep at the wheel of his truck. She admitted on questioning from the court and on cross-examination by defense counsel that she was only speculating that he fell asleep at the wheel. Gregoroff contends that the State did not offer Lobdell as an expert, and objects to her testimony on grounds that it was speculative and lacked foundation.

Although the prosecution did not formally offer Lobdell as an expert witness, her testimony concerning her years of training and experience as a highway patrol officer clearly qualified her as an expert in accident investigation and reconstruction. Lobdell testified that she had been a Montana Highway Patrol Officer for eight years, having been trained at the Highway Patrol Academy for twelve weeks. Her training included two separate traffic investigation courses, each of which was two weeks long. In the year before trial, she had attended an accident reconstruction school, after which she was recognized as an accident reconstructionist. She had taught accident investigation at the Montana Highway Patrol Academy and the Montana Law Enforcement Basic Academy, and had instructed various police departments and sheriffs’ departments on the subject. She had special training in DUI investigation while at the Academy and had taken a course on being an instructor on DUI detection and administration of standard field sobriety tests.

Lobdell testified that she had participated in over 100 DUI arrests and had investigated over 200 traffic accidents. In 15 to 20 percent of those accidents, alcohol was a factor.

Rule 702, M.R.Evid., provides that an expert witness may assist the trier of fact in understanding the evidence or determining a fact at issue by giving an opinion based on the expert’s specialized knowledge. This Court has often held that an expert opinion is not objectionable merely because it embraces an ultimate factual issue. See Kizer v. Semitool, Inc. (1991), 251 Mont. 199, 214-15, 824 P.2d 229, 238-39 (Trieweiler, J., concurring and dissenting).

In this case, Lobdell went to the scene of the accident, where she observed the road conditions, took measurements and looked for skid marks or other evidence of overcorrection, observed the position of Gregoroff’s truck where it had come to rest, and interviewed those present at the scene and then Gregoroff himself. Contrary to Gregoroff’s claim, Lobdell did not testify that Gregoroff missed the corner because he was drunk. Rather, she testified that, based upon her training and experience, it appeared that Gregoroff had either fallen asleep or lost sight of where he was going, because there was simply no evidence that the accident was caused by an attempt to avoid something on the road. In any case, the questions posed by the District Court made it clear to the jury that Lobdell had no personal knowledge that Gregoroff fell asleep, but that she was merely concluding that may have been one of the reasons he missed the corner and wrecked his truck.

Lobdell was qualified as an expert to express the opinions she expressed regarding the cause of Gregoroff’s accident. We hold that the admission of Lobdell’s testimony that in her opinion Gregoroff had passed out while driving was not an abuse of discretion.

Issue 2

Did the court err in allowing Lobdell to testify concerning her opinion that Gregoroff was under the influence of alcohol to an extent that it diminished his ability to safely operate a motor vehicle?

As stated above, Lobdell testified that she had investigated over two hundred accidents as a highway patrol officer, 15 to 20 percent of which had involved DUI. She testified that based upon her experience, it was her opinion that Gregoroff was under the influence of alcohol to an extent that it diminished his ability to drive his truck safely. Gregoroff objected to this testimony on grounds that it invaded the province of the jury, it called for a legal conclusion, and Lobdell was testifying as an expert as to the legal standards for his offense.

Citing Fuenning v. Super. Ct. in & for Cty. of Maricopa (Ariz. 1983), 680 P.2d 121, Gregoroff argues that this was the type of opinion testimony which is inadmissible because it amounts to an opinion of guilt or innocence. In Fuenning, the defendant was charged with violation of the Arizona statute prohibiting driving with a blood alcohol content of .10 or more, Ariz.Rev. StatAnn. § 28-692(B) (1982). Defendant Fuenning was not charged with violation of subsection A of the Arizona statute, which prohibited a person who is under the influence of alcohol from driving a vehicle. The contested testimony was expert testimony from police officers that, when Fuenning was arrested, he was “drunk,” “intoxicated,” and “under the influence.” The court ruled that in light of the nature of the charge against Fuenning and the absence of a charge against him of violation of subsection A, the jury might be mislead or diverted from the only issue, the chemical level of Fuenning’s blood-alcohol, by the expert testimony containing commonly-used phrases which indicated guilt of the crime not charged, subsection A of the statute. The court reversed on other grounds, but urged trial courts to use caution in admitting opinion evidence of this type. Fuenning, 680 P.2d at 131.

The problem recognized by the Fuenning court was a potential blurring of the issue before the jury when the charge was driving with a blood alcohol concentration of .10 or more. Here, unlike in Fuenning, the violation charged was operating a motor vehicle while under the influence of alcohol, not a per se violation of the DUI statute based upon blood alcohol content. Lobdell’s testimony did not present a risk of blurring the issue before the jury, as did the testimony in Fuenning.

In a supplemental opinion on a motion for reconsideration of the Fuenning decision, the Arizona court expanded upon its discussion of the propriety of allowing testimony in a DUI trial that a person was “drunk,” “intoxicated,” or “under the influence.” The court acknowledged that Rule 704, Ariz.R.Evid., permitted opinions on “ultimate issues.” The court noted that a witness

might be allowed to testify that defendant’s conduct seemed influenced by alcohol. However, testimony which parrots the words of the statute moves from the realm of permissible opinion which “embraces an” issue of ultimate fact (Rule 704) to an opinion of guilt or innocence, which embraces all issues.

Fuenning, 680 P.2d at 136.

In this case, Lobdell did not testify that Gregoroff was guilty of DUI. She testified that based upon her experience and her observations of him and of the accident scene, he appeared to be under the influence of alcohol to an extent that his ability to drive his truck was impaired. As discussed above under Issue 1, Lobdell was qualified as an expert to express the opinions she expressed regarding the cause of Gregoroff’s accident.

We hold that the District Court did not abuse its discretion in allowing Lobdell to testify concerning her opinion that Gregoroff was under the influence of alcohol to an extent that it diminished his ability to safely operate a motor vehicle.

Issue 3

Did the court err in allowing ambulance attendant Bernard Taylor to testify that Gregoroff acted like a belligerent drunk at the scene of his accident, on the way to the hospital, and at the hospital?

On cross-examination, defense counsel elicited ambulance attendant Taylor’s acknowledgment that Gregoroff’s slurred speech, bloodshot eyes, combativeness, and irrationality could have been a result of his head injury, instead of alcohol consumption. On redirect examination, counsel for the State asked Taylor whether Gregoroff’s actions were “the behavior of a belligerent drunk.” Taylor answered “yes.”

Gregoroff contends this question and response constitute prejudicial and reversible error because the answer “crosses the line into an opinion of guilt as described in Fuenning.” However, because the charge in this case was operating a motor vehicle while under the influence of alcohol, not a per se violation of the DUI statute based upon blood alcohol content, Taylor’s testimony, like that of Lobdell, did not involve a potential blurring of the issue presented to the jury, as did the testimony in Fuenning.

Rule 701, M.R.Evid., provides:

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perceptions of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.

Taylor’s testimony addressed his perception of Gregoroff’s state of intoxication, as allowed under Rule 701, M.R.Evid.

Rule 701, M.R.Evid., limits the testimony of lay witnesses to opinions or inferences which are rationally based on the witness’ perceptions and which further a clear understanding of the witness’ testimony or the determination of a fact at issue. This rule does not preclude lay witnesses from testifying to a person’s state of intoxication.

State v. Bradley (1993), 262 Mont. 194, 198, 864 P.2d 787, 789. Taylor’s testimony that Gregoroff’s behavior was that of a belligerent drunk was based upon his perceptions as a witness. We hold the admission of Taylor’s testimony that Gregoroff’s behavior was that of a belligerent drunk did not represent an abuse of discretion.

Issue 4

Does cumulative error justify reversal of Gregoroff’s conviction?

Gregoroff argues that the cumulative effect of the errors alleged under Issues 1, 2, and 3 mandate reversal of his conviction. Because we have not found any error under the first three issues, this argument, too, must fail.

Affirmed.

JUSTICES NELSON and LEAPHART concur.

JUSTICE TRIEWEILER

specially concurring.

I concur with the majority’s conclusion to affirm the judgment of the District Court and with the reasons given for its conclusion to issue one; however, I disagree in several respects with the reasoning given for conclusions to the second and third issues.

The Supreme Court of Arizona, in Fuenning v. Superior Court in and for the County of Maricopa (Ariz. 1983), 680 P.2d 121, held that while the Rules of Evidence permit opinions on “ultimate issues,” Rule 403 allows the exclusion of relevant evidence where its probative value is outweighed by the danger of prejudice. The court held that, for that reason, in prosecution for driving with a blood alcohol content of .10 percent or greater, a jury could be misled or diverted from the true issue by expert testimony to the effect that the defendant was “drunk,” which indicates guilt of a crime not charged. For that reason, in its original opinion, the Arizona Court urged trial courts “to exercise a great deal of caution in the admission of opinion evidence of this type.” Fuenning, 680 P.2d at 131. However, that court did not limit its discussion to prosecutions based simply on the level of a person’s blood alcohol content. In a footnote to which the state later objected, that court stated:

The admissibility of such statements in a prosecution for “driving under the influence” is also doubtful. While the rule does provide that opinion testimony “otherwise admissible is not objectionable” merely because it “embraces an ultimate issue,” the comment contains an important caveat:
Some opinions on ultimate issues will be rejected as failing to meet the requirement that they assist the trier of fact to understand the evidence or to determine a fact in issue. Witnesses are not permitted as experts on how juries should decide cases.

Comment, Rule 704, Ariz.R.Evid., 17AA.R.S.

Fuenning, 680 P.2d at 131, n.8.

Furthermore, in a supplemental opinion in response to the state’s motion for reconsideration, the Arizona Court specifically addressed the inadvisability of such testimony in prosecutions for driving under the influence of alcohol. The court stated, in its supplemental opinion, that:

In our view, ordinarily, it would be neither necessary nor advisable to ask for a witness’ opinion of whether the defendant committed the. crime with which he was charged. When, in a DWI prosecution, the officer is asked whether the defendant was driving while intoxicated, the witness is actually being asked his opinion of whether the defendant was guilty. In our view, such questions are not within the spirit of the rules. See Rule 704 and Comment, Ariz.R.Evid. Ordinarily, more prejudice than benefit is to be expected from this type of questioning. It ordinarily would be proper to ask the witness in such a case whether he or she was familiar with the symptoms of intoxication and whether the defendant displayed such symptoms. The witness might be allowed to testify that defendant’s conduct seemed influenced by alcohol. However, testimony which parrots the words of the statute moves from the realm of permissible opinion which “embraces an” issue of ultimate fact (Rule 704) to an opinion of guilt or innocence, which embraces all issues. This makes it easy for the jury to acquit or convict based on their empathy for the witness, rather than their consideration of the evidence.

Fuenning, 680 P.2d at 136.

I agree with the conclusion of the Arizona Supreme Court. I conclude that a witness should not be able to parrot the words of a statute and, in effect, instruct the jury regarding the proper outcome of the case. However, that is not what was done in this case. Gregoroff was charged with and convicted of operating a motor vehicle upon the highways of this state while under the influence of alcohol. Lobdell was asked during her testimony whether, based on her experience in dealing with people suspected to be under the influence of alcohol, it was her opinion that, when she observed Gregoroff, he was under the influence of alcohol. She testified without objection that in her opinion he was under the influence of alcohol. She also testified that prior to forming that opinion she had observed those facts previously described at the scene of the accident and that when she observed him at the hospital, he had a strong odor of alcohol, his eyes were glassy, his speech was moderately slurred, he displayed extreme mood swings, he was belligerent with the treating physician, and he gave inconsistent explanations of why he drove off the road.

We have held in the past that indications of intoxication are common knowledge and that the opinion that a person is intoxicated is permissible lay testimony pursuant to Rule 701, M.R.Evid. See State v. Bradley (1993), 262 Mont. 194, 864 P.2d 787.

Lobdell’s testimony did not parrot the words of the DUI statute and did not embrace all the issues which were for the jury to decide. It was still up to the jury to determine whether, in fact, Gregoroff had operated his motor vehicle in the condition in which he was observed by Lobdell.

Even if Lobdell’s opinion regarding GregorofFs condition had not' been admissible pursuant to the rationale in Fuenning, it is hard to understand how that opinion could have significantly affected the outcome of this case. Gregoroff, himself, repeatedly told those who tried to help him following his accident that the explanation for his bizarre behavior and lack of control was that he was “drunk” rather than hurt. The physical facts of his accident, the observations made by others regarding his behavior, and his own admissions, left the jury with no alternative other than to find him guilty of driving under the influence of alcohol. Lobdell’s opinion that Gregoroff was intoxicated was merely cumulative of other, overwhelming evidence.

For these reasons, I concur with the majority’s conclusion that the District Court did not err when it allowed Highway Patrol Officer Barbara Lobdell to express the opinion that when she observed Gregoroff he was under the influence of alcohol to the extent that it would have diminished his ability to safely operate a motor vehicle. However, I do not agree with the majority’s conclusion that the rule articulated by the Arizona Supreme Court in Fuenning is inapplicable to this case because the defendant in that case was charged with a per se violation of the DUI statute, rather than actually operating a motor vehicle while under the influence of alcohol.

Finally, I would conclude that the District Court did not abuse its discretion when it admitted the testimony of Bernard Taylor for the same reasons set forth in response to Issue 2. Taylor observed Gregoroff at the scene of the accident and noted that he “reeked of alcohol,” his eyes were bloodshot, his speech was slurred, he had trouble standing, he was combative, uncooperative and vulgar, and repeatedly told the attendants who tried to help him that he was not hurt but only “drunk.” Based on these observations, it was not a reach for Taylor to form the opinion, based on common experience, that Gregoroff acted like a belligerent drunk. That opinion was admissible pursuant to Rule 701, M.R.Evid., and our opinion in Bradley.

For these reasons, I concur with the result of the majority opinion, but disagree with the reasons given for that opinion.

JUSTICE HUNT joins in the foregoing concurring opinion. .


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WAYNE PARTIN, Defendant and Appellant.
    No. 96-534.
    Submitted on Briefs July 2, 1997.
    Decided December 30, 1997.
    54 St.Rep. 1474.
    287 Mont. 12.
    951 P.2d 1002.

      For Appellant: William F. Hooks, Appellate Defender, Helena.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Patricia Jordan, Assistant Attorney General, Helena; Dennis Paxinos, County Attorney; Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

Wayne Partin (Partin) appeals from the judgment and commitment entered by the Thirteenth Judicial District Court, Yellowstone County, on a jury verdict finding him guilty of the felony offense of forgery. Specifically, he appeals from the District Court’s denial of his motion for a mistrial following testimony which violated an order in limine. We reverse and remand for a new trial.

The issue on appeal is whether the District Court abused its discretion in denying Partin’s motion for a mistrial.

BACKGROUND

The State of Montana (State) charged Partin with committing the offense of forgery by allegedly altering the payee line of a check to include his name, signing the back of the check, and cashing it. Prior to trial, Partin’s counsel orally moved the District Court in limine to exclude expected testimony from the State regarding other crimes or acts based on the State’s failure to provide Partin with a Just notice of intent to use such evidence. In particular, the motion sought to preclude any reference to the fact that certain handwriting samples were on file at the Billings Police Department due to a prior arrest of Partin. The State did not oppose the motion and, indeed, assured the District Court it did not intend to go into Partin’s criminal history or record. The prosecutor also stated that she had spoken to Detective Dave Comfort, the State’s handwriting expert, about avoiding any mention of Partin’s prior arrest during his testimony comparing the writing on the check at issue to prior handwriting samples from Partin, and that she would stop him should he begin to verge into such “prior crimes” testimony. The District Court granted the motion in limine.

At trial, Ron Hill (Hill) testified that he had written, and mailed, the check at issue to AAA Drywall in September of 1995. He further testified that the payee line of the check had been altered to include “/W. Partin.” He stated that, in response to notification by AAA Drywall that it had not received the check, he called the bank to stop payment on the check and was informed that the check had already been cashed.

The bank teller who cashed the check testified that she did not remember the transaction, but that her teller stamp on the check indicated she had cashed it on September 9, 1995. She also had written a social security number on the check, reflecting that she had seen some form of identification containing the customer’s social security number and signature. According to the teller, the identification may have been, but was not necessarily, a driver’s license.

After being qualified as an expert in handwriting analysis, Detective Comfort testified that he had compared both the added writing on the payee line and the signature on the back of the check with several handwriting samples provided by Partin, two of which had been admitted into evidence. The State then asked Detective Comfort to identify the source of other handwriting samples he had used for his analysis and he responded that they were fingerprint cards from Partin’s previous arrest.

Defense counsel objected and moved for a mistrial on the grounds that Detective Comfort’s statement regarding the prior arrest violated the District Court’s grant of the motion in limine and constituted other crimes evidence. Out of the jury’s presence, the State contended that evidence of a prior arrest was not, technically, other crimes evidence. The prosecutor urged that a cautionary instruction would correct any error because the jury “won’t necessarily be biased against the defendant just by the fact [Detective Comfort] mentioned [Partin] was arrested in the past.” The District Court expressed disappointment with Detective Comfort’s testimony and ascribed it to nervousness. The court subsequently gave a cautionary instruction admonishing the jury to consider only the facts and not prior crimes allegedly committed, and that Detective Comfort should not have testified that there had been a prior arrest of Partin.

The trial continued and Detective Comfort ultimately opined that it was probable that Partin altered the front of the check. He also testified that it was highly probable that Partin endorsed the back of the check.

Partin then testified on his own behalf, denying that he altered the front, or signed the back, of the check. He testified that his roommate had stolen various items, including his wallet, from his house in August of 1995, and that his driver’s license, and perhaps his social security card, were in the wallet. This theft was reported to the police.

The jury found Partin guilty of the offense of forgery, a felony, and the District Court subsequently sentenced him and entered judgment. Partin appeals from the denial of his motion for a mistrial.

STANDARDS REGARDING MISTRIAL MOTIONS

We recently clarified the standard to be applied by a district court in determining whether to grant a motion for a mistrial. Observing that we had not consistently stated that standard in earlier cases, we held that a district court should grant a motion for a mistrial “when there is either a demonstration of a manifest necessity, or where the defendant has been denied a fair and impartial trial.” State v. Ford (1996), 278 Mont. 353, 359-60, 926 P.2d 245, 249; see also State v. Walker (1996), 280 Mont. 346, 352, 930 P.2d 60, 63-64; and State v. Romero (1996), 279 Mont. 58, 75, 926 P.2d 717, 728.

We have not previously determined when a district court should apply the manifest necessity standard as opposed to the denial of a fair and impartial trial standard. That subissue was addressed, however, in a special concurring opinion in Romero, 926 P.2d at 730 (Leaphart, J., concurring), in which three other justices joined.

Justice Leaphart noted, at the outset, that United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165, 165-66, was the source of the manifest necessity component of the standard and that, in Perez, the mistrial was declared by the court, not requested by the defendant. Romero, 926 P.2d at 730. He observed that, in United States v. Dinitz (1976), 424 U.S. 600, 606-607, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267, 273, the United States Supreme Court limited the application of the manifest necessity standard to situations where a court declares a mistrial without the consent of the defendant. The rationale for limiting application of the heightened manifest necessity standard is that double jeopardy implications arise in the context of a mistrial declared without the defendant’s request or consent. Romero, 926 P.2d at 730-31.

In the context of a defendant’s motion for a mistrial, however, Justice Leaphart relied on Oregon v. Kennedy (1982), 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416, in reasoning that double jeopardy considerations do not arise when a defendant has chosen to terminate the proceedings against him. Romero, 926 P.2d at 730-31. Thus, Justice Leaphart concluded that, where the defendant moves for a mistrial, the “motion should be granted where the ends of public justice so require or where the defendant will be denied a fair and impartial trial.” Romero, 926 P.2d at 731. Other courts are in accord with Justice Leaphart’s reasoning, applying the manifest necessity standard when the trial court declares a mistrial without the defendant’s consent and the denial of a fair trial standard when the defendant moves for a mistrial. See, e.g., State v. Ardolino (Me. 1997), 697 A.2d 73, 79; State v. Friel (Me. 1985), 500 A.2d 631, 634; Smith v. State (Ga. 1994), 439 S.E.2d 483, 485; Byrd v. State (Ga. 1992), 420 S.E.2d 748, 749; State v. Sonen (S.D. 1992), 492 N.W.2d 303, 306; State v. Delfs (S.D. 1986), 396 N.W.2d 749, 751.

We adopt the rationale set forth in Justice Leaphart’s special concurring opinion in Romero and conclude that the more stringent manifest necessity standard applies when a trial court considers declaring a mistrial without the defendant’s request or consent. We further conclude that the denial of a fair and impartial trial standard applies when a trial court determines whether to grant a mistrial either moved for — or consented to — by the defendant. Thus, the fair and impartial trial standard applies to the District Court’s ruling on Partin’s motion for a mistrial based on inadmissible testimony which violated the order in limine.

With regard to this Court’s standard of review of a district court’s ruling on a motion for a mistrial, the parties advance different positions based on two separate lines of authority. The State relies on recent language in Ford, 926 P.2d at 248-49 (citing State v. Greytak (1993), 262 Mont. 401, 404, 865 P.2d 1096, 1098) — reiterated in Walker, 930 P.2d at 63, and Romero, 926 P.2d at 728 — that, in reviewing a trial court’s ruling on a motion for a mistrial, we determine whether there is clear and convincing evidence that the court’s ruling is erroneous. In contrast, Partin urges us to apply the standard of review set forth in State v. Seaman (1989), 236 Mont. 466, 475, 771 P.2d 950, 956 (citing State v. Scheffelman (1987), 225 Mont. 408, 411, 733 P.2d 348, 350), which is whether the district court abused its discretion in denying the motion. Thus, before addressing the merits of the present appeal, we must resolve the threshold issue of our standard of review.

The problem with the Ford standard — whether there is clear and convincing evidence that the trial court’s ruling is erroneous — is that clear and convincing evidence is an evidentiary standard. Indeed, we recently defined clear and convincing evidence as:

“[c]lear and convincing proof is simply a requirement that a preponderance of the evidence be definite, clear, and convincing, or that a particular issue must be clearly established by a preponderance of the evidence or by a clear preponderance of proof. This requirement does not call for unanswerable or conclusive evidence. The quality of proof, to be clear and convincing, is somewhere between the rule in ordinary civil cases and the requirement of criminal procedure — that is, it must be more than a mere preponderance but not beyond a reasonable doubt.”

Matter of J.L. (1996), 277 Mont. 284, 289, 922 P.2d 459, 462 (quoting In Interest of S.M.Q. (Kan. 1990), 796 P.2d 543, 545); see also Wareing v. Schreckendgust (1996), 280 Mont. 196, 206, 930 P.2d 37, 43 (citation omitted). Such an evidentiary standard relating to a party’s burden of proof in the district court is not a proper standard for this Court’s review of a district court’s ruling on a motion for a mistrial. As a result, we will no longer use the “clear and convincing evidence that the trial court’s ruling is erroneous” standard of review applied in Ford, Walker, Romero, and earlier cases. In accordance with the Seaman and Scheffelman line of cases, we will review a district court’s ruling on a motion for a mistrial to determine whether the court abused its discretion.

DISCUSSION

Did the District Court abuse its discretion in denying Partin’s motion for a mistrial?

It is undisputed in this case that Detective Comfort’s reference to fingerprint cards from Partin’s prior arrest as the source of handwriting samples violated the District Court’s order in limine and, therefore, was inadmissible. Partin moved for a mistrial, arguing that the testimony had such a prejudicial impact that a cautionary jury instruction could not cure the error. The State contended that Detective Comfort’s reference to the prior arrest did not necessarily indicate a prior conviction and that a cautionary jury instruction was sufficient to cure any error. The District Court denied Partin’s motion and the question before us is whether, under the facts and circumstances of this case, the court abused its discretion in determining that Detective Comfort’s reference to Partin’s prior arrest did not deny Partin a fair and impartial trial.

The general rule is that, where there is a reasonable possibility that inadmissible evidence might have contributed to the conviction, a mistrial is appropriate. See Walker, 930 P.2d at 64 (citations omitted). In determining whether a prohibited statement contributed to a conviction, the strength of the evidence against the defendant— together with the prejudicial effect of the testimony and whether a cautionary jury instruction could cure any prejudice — must be considered. See Walker, 930 P.2d at 63-64; Ford, 926 P.2d at 249.

We begin by addressing the strength of the evidence against Partin in the context of whether there is a reasonable possibility that Detective Comfort’s reference to a prior arrest might have contributed to Partin’s conviction. No eyewitnesses tied Partin to the offense. Although Hill testified that the check had been altered and the bank teller testified that she cashed the check, neither one could identify Partin or link him to the check. Therefore, Detective Comfort’s testimony regarding the handwriting analysis he performed was the only link between Partin and the offense.

On direct examination, Detective Comfort testified to the consistencies between the handwriting samples and the writing on the check and concluded that, in his opinion, it was probable that Partin altered the payee line of the check and highly probable that Partin signed the back of it. He further testified that he uses a six-step grading scale which ranges from a positive match downward through a high probability, a probability, a possibility, and some indications to no indications of a match. Therefore, Detective Comfort was able to assign only the second highest grade to the results of his analysis of the endorsement on the back of the check. He also testified that his analysis indicated that Partin’s signature was “consistent with the writing on the back of the check” before going on to testify that it was “highly probable” that Partin had endorsed the check. During cross-examination, various inconsistencies between the handwriting samples and the writing on the check were pointed out. The inconsistencies included the fact that the signature on the handwriting samples turned into a straight line, while the signature on the check turned into a “squiggly” line. In addition, the handwriting samples all contained an “a” that was absent from the signature on the back of the check. Indeed, Detective Comfort testified that it was possible someone else could have endorsed the check.

After the close of the State’s case, Partin testified on his own behalf that he did not steal the check, alter the payee line, or endorse the back and cash it. He also testified that his roommate had stolen his wallet — which contained his driver’s license and possibly his social security card — and that he reported the theft to the police.

The lack of eyewitness testimony connecting Partin to the check in any way, together with Detective Comfort’s handwriting analysis producing a less than positive match, result in evidence against Partin which is far short of being overwhelming. Furthermore, the inconsistencies in Detective Comfort’s analysis and the other weaknesses in his results were effectively highlighted during cross-examination. Finally, Partin testified that he did not forge the check and advanced an alternative explanation which was not inherently incredible. Overall then, the evidence against Partin was conflicting and relatively weak.

The prejudicial effect of Detective Comfort’s reference to Partin’s prior arrest must also be considered. See Walker, 930 P.2d at 64. In this regard, we have recognized that the introduction of other crimes evidence inevitably involves prejudice to the defendant. State v. Anderson (1996), 275 Mont. 344, 349, 912 P.2d 801, 804 (citation omitted). Indeed, such evidence is introduced by the prosecution for the very purpose of prejudicing the defendant. The State argues, however, that a prior arrest is not technically other crimes evidence and, therefore, reference to a prior arrest will not necessarily result in prejudice to the defendant.

We have stated, without analysis, that testimony about the existence of a pending charge in another state is not other crimes evidence. Ford, 926 P.2d at 249. We also have held that an officer’s statement that he recognized the defendant from past forgery investigations was other crimes evidence requiring a Just notice. Walker, 930 P.2d at 64. Finally, we have determined that Just does not apply to testimony regarding other wrong acts when the testimony was inadvertent because the prosecution did not intend to offer such evidence. State v. Brush (1987), 228 Mont. 247, 250, 741 P.2d 1333, 1335. We need not resolve this apparent conflict in our cases here, however, for two reasons.

First, if the State desired to take the position that the prior arrest was not other crimes evidence, it should have done so in response to Partin’s pretrial motion in limine to preclude reference to a prior arrest. It not only did not do so, it acquiesced in the motion. Then, having elicited the very testimony it agreed was inadmissible, the prosecutor responded to Partin’s motion for a mistrial by arguing the purported distinction between other crimes evidence and testimony referencing only a prior arrest. The State repeats that argument on appeal, but we will not countenance such position-shifting by addressing that argument here.

Second, regardless of whether Detective Comfort’s reference to Partin’s prior arrest is other crimes evidence under Just and Rule 404(b), M.R.Evid., testimony that a defendant has been arrested on a prior occasion is inherently prejudicial. If it were not, there would be no reason for a motion in limine to preclude such evidence. Further, the prosecutor’s acquiescence in — and the District Court’s grant of — the motion in limine in this case reflect that all involved conceded the prejudicial effect of evidence that Partin had been arrested on a prior occasion. This is especially true when, as in this case, the only evidence directly linking Partin to the check at issue is the testimony of the very officer who also disclosed the previous arrest, and the only defense witness is the defendant. Under such circumstances, the reference to the prior arrest may have buttressed the officer’s other testimony and, at the same time, impugned the defendant’s credibility and character. On this record, we conclude that Detective Comfort’s reference to Partin’s prior arrest was prejudicial.

Regarding the extent of the prejudice, the State argues that Detective Comfort’s reference to Partin’s prior arrest is no more prejudicial than the officer’s reference to other charges pending against the defendant in Ford. Because we determined that reference had only a slight prejudicial effect and affirmed the denial of that defendant’s motion for a mistrial, the State contends we should do the same in the present case.

In Ford, the victim testified that Ford had sexually assaulted him and that, when confronted the next day, Ford admitted what he had done. Ford, 926 P.2d at 246-47. The victim’s cousin and uncle provided similar descriptions of the confrontation between the victim and Ford. Ford, 926 P.2d at 247. The investigating officer testified that, before he searched Ford’s residence, he asked for consent to search and told Ford that there were charges pending in another state. Ford, 926 P.2d at 247. The defendant objected and the trial court overruled the objection. The defendant subsequently moved for a mistrial; the trial court denied the motion, but gave a cautionary instruction. Ford, 926 P.2d at 247. On that record, we determined that the reference to other pending charges had little, if any, prejudicial effect. Ford, 926 P.2d at 249.

In Ford, the evidence against the defendant was very strong. Here, as discussed above, the evidence against Partin was weak and conflicting. There were no eyewitnesses to any involvement by Partin with the check at issue. Nor was there testimony corroborating Detective Comfort’s opinion that the writing on the check was Partin’s and, as discussed above, the weaknesses in Detective Comfort’s handwriting analysis and opinion were highlighted effectively during cross-examination. Since the stronger the evidence against the defendant, the less likely it is that a reference to other charges or a prior arrest will have a prejudicial effect, we conclude that the reference to Partin’s prior arrest had a greater prejudicial effect than the reference to other charges in Ford.

Finally, we turn to the question of whether the District Court’s cautionary instruction could cure the prejudicial effect of Detective Comfort’s reference to Partin’s prior arrest. Generally, “an error in the admission of evidence may be cured if the jury is admonished to disregard it.” Walker, 930 P.2d at 64 (citations omitted). A general rule is not carved in stone, however, and if this one were, every improper introduction of evidence — no matter how egregious and prejudicial and without regard to any pretrial exclusion — could and would be cured by a cautionary instruction. Where the question before us boils down to whether there is a reasonable possibility that inadmissible evidence might have contributed to the conviction, we must evaluate the applicability of the general rule regarding curative instructions carefully.

In Walker, another felony forgery case, an officer referenced past forgery investigations involving the defendant at a point during trial when another officer had testified that three bank employees identified the defendant in a photo line-up. Walker, 930 P.2d at 64. In addition, the three bank employees provided in-court identifications of the defendant. Walker, 930 P.2d at 64. The defendant objected to the reference to the past forgery investigations and, during the ensuing discussion in chambers, moved for a mistrial. The prosecutor admitted that no Just notice had been given. Walker, 930 P.2d at 63. The district court denied the motion for a mistrial and admonished the jury not to consider the reference to past investigations. Walker, 930 P.2d at 63. We determined on appeal that, in light of all the evidence presented and the prompt cautionary instruction, the officer’s reference to past forgery investigations did not contribute to the conviction; in doing so, we implicitly concluded that any prejudice from the improper testimony was cured by the instruction. Walker, 930 P.2d at 64.

Clearly, the admonition to the jury in Walker was not the only factor we considered in determining that the prejudicial effect of the reference to past investigations had been overcome. The strong evidence against the defendant — including that of three eyewitnesses — was an important underpinning for our conclusion that the prejudice was cured. See Walker, 930 P.2d at 64. Here, unlike in Walker, the evidence was weak and conflicting and no eyewitnesses tied Partin to the check at issue. Furthermore, in Walker the reference to the other charges did not violate a pretrial order excluding such testimony. In this case, the reference to Partin’s prior arrest violated the District Court’s order in limine to which the State had agreed. Under such a circumstance, and given the status of the evidence, resolving any doubt about the efficacy of the cautionary instruction in favor of the prosecution would be inappropriate. As a result, we conclude that the cautionary instruction did not overcome the prejudicial effect of Detective Comfort’s reference to Partin’s prior arrest.

Based on the record before us here, we conclude that there is a reasonable possibility that Detective Comfort’s reference to Partin’s prior arrest might have contributed to Partin’s conviction and, as a result, that Partin was denied a fair and impartial trial. We hold, therefore, that the District Court abused its discretion in denying Partin’s motion for a mistrial.

Reversed and remanded for a new trial.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, HUNT and TRIEWEILER concur.


author: JUSTICE LEAPHART JUSTICE TRIEWEILER

text:
    IN THE MATTER OF S.L.M., a Youth. IN THE MATTER OF S.T., a Youth. IN THE MATTER OF J.L.C., a Youth. IN THE MATTER OF J.A.T., a Youth. IN THE MATTER OF L.D., a Youth.
    Nos. 96-576, 96-337, 96-220, 96-546 and 96-547.
    Argued November 6, 1997.
    Submitted November 14, 1997.
    Decided December 30, 1997.
    54 St.Rep. 1480.
    287 Mont. 23.
    951 P.2d 1365.

      JUSTICE TRIEWEILER specially concurring.
    For Appellants: Daniel P. Buckley (argued); Berg, Lilly, Andriolo & Tollefsen, Bozeman (96-576); D.E. Pomery (argued), Attorney at Law, Bozeman (96-337); John Keith, Attorney at Law, Great Falls (96-220); Roberta A. Drew, Yellowstone County Defender’s Office, Billings (96-546 and -547);
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Cregg W. Coughlin (argued), Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

The appellants in these five appeals challenge the Extended Jurisdiction Prosecution Act, §§ 41-5-1601 through -1607, MCA, (EJPA) as being unconstitutional under the equal protection, due process and double jeopardy clauses of the United States and Montana constitutions, as well as under Article II, Section 15 of the Montana Constitution. Although there are some factual differences in how each prosecution evolved as well as differences in the conclusions reached by the various District Courts, the constitutional issues presented encompass each of the appeals. Accordingly, we consolidate these appeals for purposes of an opinion. Since we determine that the EJPA violates Article II, Section 4 (equal protection) of the Montana Constitution and Article II, Section 15 (rights of minors) of the Montana Constitution, we need not address the double jeopardy and due process challenges.

PROCEDURAL BACKGROUND OF EACH APPEAL

I. In the Matter of S.L.M., Cause No. 96-576, Gallatin County.

The Youth S.L.M. was charged with perjury and the criminal sale of dangerous drugs, both punishable as felonies if committed by an adult. The State alleged that S.M. sold $150 worth of marijuana to an undercover agent. At the time of the offense, S.M. was under the age of 18 years. The State requested extended jurisdiction under the EJPA. The District Court held a hearing and granted extended jurisdiction over the charge of criminal sale of dangerous drugs, but did not extend jurisdiction over the charge of perjury, an offense which is not enumerated for extended jurisdiction under the EJPA. At the disposition hearing, the Youth argued that the EJPA violates the equal protection, double jeopardy, and due process guarantees of the Montana and United States constitutions. The District Court rejected the Youth’s contentions and committed him to the Department of Corrections until he reaches the age of 19. The District Court then entered and stayed a Sentence and Judgment of 10 years on the charge of criminal sale of dangerous drugs. The Youth filed a motion for correction of sentence or reconsideration. That motion was denied, and the Youth appealed to this Court.

II. In the Matter of J.L.C., Cause No. 96-220, Hill County:

The Youth J.L.C. was charged with negligent homicide as the result of a car accident in which J.L.C. was driving a vehicle while under the influence of drugs and alcohol. The vehicle rolled, and one of the two passengers died from injuries received. J.L.C. was 17 years of age at the time of the incident. At the request of the county attorney, the District Court granted extended jurisdiction over the charge of negligent homicide. The Youth pled guilty to negligent homicide, and the court, by way of a juvenile disposition, placed the Youth on formal probation until he reaches the age of 21. In addition, under the E JPA, the court imposed an adult sentence committing the Youth to the Department of Corrections for a period of 5 years, suspended. The Youth filed a notice of appeal to this Court.

III. In the Matter of S.T., Cause No. 96-337, Gallatin County:

S.T. was charged in Youth Court with eight offenses, including two burglaries. He admitted to having committed each of the offenses. The State filed a motion to have the case designated an extended jurisdiction prosecution. S.T. challenged the EJPA as unconstitutional under the double jeopardy clause, the due process clause and Article II, Section 15 of the Montana Constitution. The District Court rejected the constitutional challenges and imposed a juvenile disposition (chemical dependency treatment, random urinalysis and restitution) under § 41-5-523, MCA, of the Youth Court Act as well as an adult sentence under § 46-18-201, MCA (ten years to the Department of Corrections, stayed).

Based upon a report of probation violations, the State subsequently filed a request with the court to impose the adult portion of the sentence. S.T. was arrested pursuant to a bench warrant. After initially denying the violations, S.T. admitted the violations of probation. The court then imposed the sentence of 10 years with the Department of Corrections, suspended 5 years, and imposed conditions for the suspended portion of the sentence. S.T. was credited with 91 days of incarceration served under the juvenile disposition.

IV. In the Matter of J.A.T., Cause No. 96-546, Yellowstone County and In the Matter of L.D., Cause No. 96-547, Yellowstone County:

J.A.T. was charged in Youth Court with assault with a dangerous weapon and misdemeanor theft. The State requested extended jurisdiction for the charge of assault. J.A.T. admitted the allegations in the petition and proceeded to challenge the constitutionality of the EJPA. The court ordered J.A.T. committed to the Department of Corrections until the age of 19. The court stayed the commitment on condition that J.A.T. continue to reside with his grandfather and attend school. The court held the adult portion of the sentence in abeyance pending a ruling on the Youth’s motion challenging the constitutionality of the EJPA.

Subsequently, the State filed a petition charging the Youth with possessing drug paraphernalia and, on that basis, sought to revoke the prior suspension of commitment. J.A.T admitted the allegations, and the court placed him on probation for one year.

In a separate matter, in November of 1995, the State charged L.D. with being a delinquent youth for committing deliberate homicide. The State later amended its petition to charge negligent homicide as an alternate charge. L.D. admitted to the charge of negligent homicide, but challenged the constitutionality of the EJPA. The court declared L.D. a delinquent youth and committed him to the Department of Corrections until age 19. The court took the issue of whether to designate the case as one for extended jurisdiction -under advisement.

On July 19,1996, the court issued a consolidated order in both L.D. and J.A.T. declaring the EJPA unconstitutional on double jeopardy, due process and equal protection grounds. The State appeals from that decision.

ISSUES PRESENTED

1. Does the EJPA violate the equal protection clauses of the United States Constitution and/or the Montana Constitution?

2. Does the EJPA violate the provisions of Article II, Section 15 of the Montana Constitution?

3. Does the EJPA violate the double jeopardy clauses of the United States Constitution and/or the Montana Constitution?

4. Does the EJPA violate the due process clauses of the United States Constitution and/or the Montana Constitution?

DISCUSSION

I. Overview of the Extended Jurisdiction Prosecution Act

In 1995, the legislature substantially revised the Montana Youth Court Act, including amending the Declaration of Purpose to effectuate the following purpose:

to prevent and reduce youth delinquency through immediate, consistent, enforceable, and avoidable consequences of youths’ actions and to establish a program of supervision, care, rehabilitation, detention, competency development, community protection, and, in appropriate cases, restitution as ordered by the youth court [.]

Section 41-5-102(2), MCA (1995).

As part of the broad 1995 revision of the Youth Court Act, the EJPA was enacted. The EJPA is now codified at Title 41, Chapter 5, Part 16, MCA. Although the youths herein were all sentenced under the EJPA as it was enacted in 1995, the 1997 legislature amended the EJPA to provide for more procedural due process in revocation of stay proceedings. See § 41-5-1605, MCA. If the State were to initiate revocation of stay proceedings against any of the appellants, the 1997 amendments would inure to their benefit. However, for purposes of our equal protection analysis, the sentencing provisions of the Act remain the same in that they still provide for imposition of an adult sentence in addition to a juvenile disposition. Accordingly, we will refer to the Act as amended and codified at Title 45, Chapter 5, Part 16, MCA.

A youth court case may be designated an “extended jurisdiction juvenile prosecution” when the offender is at least 14 years of age, the county attorney requests that the case be designated an extended jurisdiction juvenile prosecution, a hearing is held, and the youth court designates the case as such. Section 41-5-1602, MCA. If, after a hearing, the county attorney has shown by clear and convincing evidence that designating the case an extended jurisdiction prosecution serves the public safety, the youth court may so designate. Section 41-5-1603(3), MCA.

A case may also fall under the EJPA if the youth is alleged to have committed one or more of the offenses listed under § 41-5-206, MCA, and the county attorney designates the case as an extended jurisdiction prosecution. Section 41-5-1602(l)(b), MCA. The case may also fall under the EJPA if the youth was at least 12 years of age, allegedly committed an offense which, if committed by an adult, would be punishable as a felony, and allegedly used a firearm in the commission of the offense. Section 41-5-1602(l)(b), MCA. Additionally, the case may be designated an extended jurisdiction prosecution if, after a hearing on the motion to transfer the case for prosecution in district court under § 41-5-206, MCA, the youth court designates the case an extended jurisdiction prosecution. Section 41-5-1602(l)(c), MCA.

After the case is designated an extended jurisdiction prosecution, the case proceeds to an adjudicatory hearing as provided in § 41-5-1502, MCA. If the youth admits to committing, or is adjudicated to have committed, an offense which would be a felony if committed by an adult, the youth court must impose one or more of the juvenile dispositions under § 41-5-1512, MCA, and any sentence which could be imposed on an adult offender of the same offense. The statute expressly provides that execution of the sentence imposed “must be stayed on the condition that the youth not violate the provisions of the disposition order and not commit a new offense.” Section 41-5-1604(l)(b), MCA.

If the court is subsequently informed that any condition of the disposition has been violated, or if it is alleged that the youth has committed a new offense, the court may, without notice, order the youth be taken into custody. Section 41-5-1605(1), MCA. The district court must then notify the youth, in writing, of the reasons alleged for revocation of the stay. Section 41-5-1605(1), MCA.

If the youth challenges the reasons for the revocation, the court must hold a hearing at which the youth is entitled to notice, an opportunity to be heard, right to counsel, and the right to cross-examine witnesses. Section 41-5-1605(2), MCA. If, after the hearing, the court finds by a preponderance of the evidence that the conditions of the stay have been violated or that the youth has committed a new offense, the court shall provide a written statement of the reasons for the revocation and shall: 1) continue the stay and place the youth on probation; 2) impose one or more dispositions under §§ 41-5-1512 or -1513, MCA, if the youth is under age 18; or 3) subject to §§ 41-5-206(6) and (7), MCA, order execution of the sentence imposed under § 41-5-1604(l)(b), MCA. Section 41-5-1605(2)(b), MCA.

Upon revocation and disposition, the youth court shall transfer the case to the district court. Section 41-5-1605(3), MCA. Upon transfer, the offender’s extended jurisdiction juvenile status is terminated, and the youth court jurisdiction is terminated. Section 41-5-1605(3), MCA. Ongoing supervision of the offender is with the Department of Corrections rather than with the youth court’s juvenile probation services. Section 41-5-1605(3), MCA.

II. Standing

The State contends that certain of the youths lack standing to challenge the constitutionality of the EJPA. The youths contend that the EJPA violates equal protection by subjecting them to a longer period of incarceration than that permitted for an adult offender. The State points out, however, that the adult portion of the sentence is only triggered if the youth violates the terms of his juvenile disposition and the stay of the adult sentence is revoked. Those youths who have not had the stay revoked have not been adversely affected by imposition of an adult sentence and thus, the State contends, lack standing.

We conclude that the youths, each of whom have been sentenced under the EJPA, have standing to challenge its provisions. We recently addressed the question of standing in Gryczan v. State (1997), 283 Mont. 433, 942 P.2d 112. We reiterated the criteria for determining standing: 1) the complaining party must clearly allege past, present or threatened injury to a property or civil right; and 2) the alleged injury must be distinguishable from the injury to the public generally, but need not be exclusive to the complaining party. Gryczan, 942 P.2d at 117. Gryczan involved a constitutional challenge by six homosexuals (the respondents) to the statutory prohibition on deviate sexual conduct. See § 45-5-505, MCA. The State contended that because the statute had never been enforced against consenting adults, there was no “threatened injury” and, thus, no standing. Gryczan, 942 P.2d at 116.

This Court, despite the fact that the respondents had not been arrested or prosecuted, held that they were precisely the individuals the statute was designed to impact. Gryczan, 942 P.2d at 119. Furthermore, we noted that nothing prevented a county attorney from exercising his or her discretion and choosing to prosecute. Since the legislature had not disavowed the statute, we concluded that the respondents “suffer a legitimate and realistic fear of criminal prosecution along with other psychological harms. Respondents are precisely the individuals against whom the statute is intended to operate. This is sufficient to give Respondents standing to challenge the constitutionality of the statute.” Gryczan, 942 P.2d at 120.

The threat of injury to the youths herein is even more apparent than that to the respondents in Gryczan. There is no question but that the youths are among the individuals against whom the EJPA is directed. Further, the youths have not only been prosecuted, but have also been sentenced under the EJPA. Although the adult sentences of some of the youths may be presently stayed on the condition that they comply with their juvenile dispositions, they suffer a “legitimate and realistic” fear that the adult sentence will be imposed should they violate the disposition. We conclude that the youths, regardless of whether their stays have been lifted, have standing to challenge the constitutionality of the EJPA on equal protection grounds.

III. Does the EJPA violate the equal protection clauses of the United States Constitution and/or the Montana Constitution and the rights of minors under Article II, Section 15 of the Montana Constitution?

Resolution of this issue involves a question of constitutional law. Accordingly, we review to determine whether the court’s interpretation of the law is correct. State v. Schnittgen (1996), 277 Mont. 291, 295, 922 P.2d 500, 503.

Equal protection challenges to legislation are reviewed under one of three different levels of scrutiny. When the legislation in question infringes upon a fundamental right or discriminates against a suspect class, we employ the most stringent standard, strict scrutiny. “Strict scrutiny has been limited to those instances when either a fundamental right has been infringed or a suspect classification has been established. Strict scrutiny requires the government to show a compelling state interest for its action.” Davis v. Union Pacific Railroad Co. (1997), 282 Mont. 233, 937 P.2d 27, 31.

If the right in question has its origin in the Montana Constitution, but is not found in the Declaration of Rights, we employ a middle-tier scrutiny. Butte Community Union v. Lewis (1986), 219 Mont. 426, 434, 712 P.2d 1309, 1313. Middle-tier scrutiny requires the State to demonstrate that its classification is reasonable and that its interest in the classification is greater than that of the individual’s interest in the right infringed. Lewis, 712 P.2d at 1314.

If the right in question is not fundamental and does not warrant middle-tier scrutiny, we review under a rational basis test. This test requires the government to show that the objective of the statute is legitimate and bears a rational relationship to the classification used by the legislature. Cottrill v. Cottrill Sodding Service (1987), 229 Mont. 40, 744 P.2d 895.

In addressing an equal protection challenge, we first identify the classes involved and determine whether they are similarly situated. The two classes involved in the present appeals are: 1) juveniles who are sentenced as adults under the EJPA; and 2) adults who are sentenced for committing the same offense as the juveniles. Since both classes are composed of persons who have committed the same act and who are sentenced “as adults,” the classes are similarly situated for equal protection purposes.

We next determine whether a suspect classification is involved. A suspect class is one “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” San Antonio Independent School Dist. v. Rodriguez (1973), 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16, 40. A classification between juvenile and adult offenders is a distinction based upon age. We have followed the United States Supreme Court in holding that a sentencing distinction based upon age is not a suspect classification requiring strict scrutiny. Matter of Wood (1989), 236 Mont. 118, 125, 768 P.2d 1370, 1375.

We then define the nature of the individual interest affected; is it a fundamental right triggering a strict scrutiny analysis? The youths argue that imposition of an adult sentence in addition to a juvenile disposition is an infringement upon their physical liberty and that physical liberty is a fundamental right. This question was answered in Matter of C.H. (1984), 210 Mont. 184, 683 P.2d 931. C.H. contended that placing a truant status offender in an institution for a 45-day predispositional evaluation was an infringement upon the fundamental right of physical liberty, a right which must be protected absent a compelling state interest. Matter of C.H., 683 P.2d at 938. She also contended that § 41-5-103(12),/MCA, is unconstitutional in that it authorizes the youth court to reclassify a youth in need of supervision who has violated a court order as a delinquent youth. Matter of C.H., 683 P.2d at 938. She contended that this classification violated equal protection guarantees by allowing the court to treat youths in the same class, i.e., youthful contemnors, differently.

While physical liberty is not specifically guaranteed under either the United States Constitution or the Montana Constitution, we noted in Matter of C.H., 683 P.2d at 940, that the concept of “liberty” is very much a part of our state constitution. The preamble to the Montana Constitution states in part: ‘We the people of Montana ... desiring... to secure the blessings of liberty... do ordain and establish this constitution.” Further, Article II, Section 3 states in part: “All persons are born free and have certain inalienable rights. They include ... the rights of ... enjoying and defending their lives and liberties ....” Article II, Section 17, the due process clause, states: “No person shall be deprived of life, liberty, or property without due process of law.”

In Matter of C.H., 683 P.2d at 940, we concluded: “Reading the preamble and these sections of our constitution together, we hold that under the Montana Constitution physical liberty is a fundamental right, without which other constitutionally guaranteed rights would have little meaning.” We then analyzed the interplay between the guarantee of equal protection and Article II, Section 15’s guarantee to minors of all the fundamental rights of Article II unless specifically precluded by laws which enhance the protection of such persons. We held that “a juvenile’s right to physical liberty must be balanced against her right to be supervised, cared for and rehabilitated.” Matter of C.H., 683 P.2d at 941.

We determined that two compelling state interests justified classifying a youth as a delinquent youth or a youth in need of supervision, depending upon the circumstances. The two compelling state purposes were: 1) to rehabilitate youthful offenders by providing for their care, protection and wholesome mental development before they become adult criminals; and 2) to substitute a program of supervision, care and rehabilitation and remove the element of retribution from the punishment of a youth who has violated the law. Matter of C.H., 683 P.2d at 941. “The youth court’s statutory authority to classify contempt of court, depending upon the circumstances of the case, permits the court to fashion an appropriate, individual rehabilitation plan for each youthful contemn[o]r.” Matter of C.H., 683 P.2d at 941.

In the present appeals, the EJPA’s imposition of an adult sentence in addition to a juvenile disposition infringes on the juvenile’s physical liberty, which is a fundamental right. As in Matter of C.H., 683 P.2d at 941, we must therefore apply a strict scrutiny analysis and determine whether there is a compelling state interest sufficient to justify such an infringement and whether such an infringement is consistent with the mandates of Article II, Section 15 of the Montana Constitution.

Article II, Section 15 provides:

Rights of persons not adults. The rights of persons under 18 years of age shall include, but not be limited to, all the fundamental rights of this Article unless specifically precluded by laws which enhance the protections of such persons.

This section must be read in conjunction with the guarantee of equal protection found in Article II, Section 4. The report of the Bill of Rights Committee of the Constitutional Convention indicates that one of the primary purposes of Article II, Section 15 was to remedy the fact that minors had not been accorded full recognition under the equal protection clause of the United States Constitution. The Bill of Rights Committee’s Comments are as follows:

The committee took this action in recognition of the fact that young people have not been held to possess basic civil rights. Although it has been held that they are “persons” under the due process clause of the Fourteenth Amendment, the Supreme Court has not ruled in their favor under the equal protection clause of that same amendment. What this means is that persons under the age of majority have been accorded certain specific rights which are felt to be a part of due process. However, the broad outline of the kinds of rights young people possess does not yet exist. This is the crux of the committee proposal: to recognize that persons under the age of majority have the same protections from governmental and majoritarian abuses as do adults. In such cases where the protection of the special status of minors demands it, exceptions can be made on clear showing that such protection is being enhanced.

Montana Constitutional Convention, Vol. II at 635-36.

Clearly under Article II, Section 15, minors are afforded full recognition under the equal protection clause and enjoy all the fundamental rights of an adult under Article II. Furthermore, if the legislature seeks to carve exceptions to this guarantee, it must not only show a compelling state interest but must also show that the exception is designed to enhance the rights of minors.

In Matter of C.H., 683 P.2d at 941, we held that the state had a compelling interest in removing the element of retribution and instead rehabilitating youths before they became adult offenders. At the time Matter of C.H. was decided, the stated purpose of the Youth Court Act was “to remove from youth committing violations of the law the element of retribution and to substitute therefor a program of supervision, care, rehabilitation, and, in appropriate cases, restitution as ordered by the youth court.” Section 41-5-102(2), MCA (1983). However, the purposes of the Youth Court Act have since been considerably broadened. As of the 1995 amendments, the Declaration of Purpose now states the following goals:

[T]o prevent and reduce youth delinquency through an immediate, consistent, enforceable, and avoidable consequences of youths’ actions and to establish a program of supervision, care, rehabilitation, detention, competency development, community protection,
and, in appropriate cases, restitution as ordered by the youth court [.]

Section 41-5-102(2), MCA (1995) (emphasis added).

s compared to the pre-1995 Declaration of Purpose, the Act now espouses much more preventative, if not punitive, goals; that is, the Act now seeks to prevent delinquency through imposition of enforceable and immediate consequences and to establish programs of detention and community protection. The State asserts that the EJPA was designed by the legislature to address the rising tide of juvenile criminal conduct in Montana and dispel the notion held by some juveniles that their criminal conduct holds no consequences for them. The EJPA, as noted by the State, gives the courts “a bigger stick to help keep kids in line — to let them know their crimes are serious and this is their last chance to cooperate.” Obviously, it is no longer accurate to reason, as we did in Matter of C.H., 683 P.2d at 941, that Youth Court Act infringements upon a juvenile’s physical liberty are legitimate means of enhancing their protection. Indeed, in requiring the court to impose an adult sentence in addition to the juvenile disposition, the EJPA goes beyond mere rehabilitation and injects the specter of retribution. Our holding in Matter of C.H. is thus distinguishable on that basis.

All juveniles subject to the EJPA are at risk of serving an adult sentence in addition to their juvenile disposition. Thus, the EJPA, on its face, violates the equal protection clause of Article II, Section 10 by treating EJPA offenders more harshly than their adult counterparts. The EJPA also violates Article II, Section 15 by reducing, rather than enhancing, a juvenile’s rights as compared to an adult’s. The State, relying solely on its contention that 'age is not a suspect classification, does not address the fundamental right analysis and has not suggested any compelling state interest to justify the E JPA’s infringement on the fundamental right of physical liberty. While the State has a clear interest in deterring serious juvenile crime and while it can, within the limits of equal protection, further this interest by increasing the sanctions imposed upon juveniles, it has no compelling state interest in treating them as adults and restricting their physical liberty beyond the restrictions which are imposed upon an adult for the same offense.

As an example, one of the appeals before us, Matter of J.L.C., Cause No. 96-220, Hill County, involves a 17-year-old youth who pled guilty to one count of negligent homicide, a violation of § 45-5-104, MCA. Pursuant to the EJPA, J.L.C. received a juvenile disposition committing him to formal probation until age 21 plus an adult sentence of 5 years with the Department of Corrections, suspended on the condition that he comply with the probation until age 21. Thus, while the “adult” portion of his sentence is only 5 years, the total sentence with both juvenile and adult aspects combined could equal 9 years, nearly twice as long as the 5-year adult sentence under similar circumstances. Clearly, although the law purports to treat J.L.C. as an “adult,” he is treated differently than an adult and in such a manner that his rights are lessened rather than enhanced, as mandated by Article II, Section 15. Thus, the EJPA, both on its face and as applied to J.L.C., violates equal protection under Article II, Section 4 and a minor’s rights to enhanced protection under Article II, Section 15 of the Montana Constitution.

In addition to Matter of C.H., 683 P.2d at 931, discussed above, we have twice addressed equal protection challenges to the different treatment of offenders based upon age. As the following analysis indicates, we find both of these decisions distinguishable.

A. Our Decision in Matter of Wood:

In Matter of Wood (1989), 236 Mont. 118, 768 P.2d 1370, we addressed an equal protection challenge by a 16-year-old youth to the process whereby jurisdiction over his homicide case was mandatorily transferred from youth court to district court. The Youth Court Act, § 41-5-206(l)(a)(i), MCA, provided that a youth aged 12 years or older who had committed deliberate homicide or mitigated deliberate homicide may be transferred, after a hearing, to district court. Wood contended that, as a 16-year-old, he was entitled to the same due process (i.e., a hearing) as a younger person and that § 41-5-206(3), MCA, denied equal protection when it provided that youths 16 years or older who have allegedly committed deliberate homicide must be transferred to district court, without any requirement of a hearing. Matter of Wood, 768 P.2d at 1372. We held that procedural due process is not a fundamental right nor is age a suspect class requiring strict scrutiny. Matter of Wood, 768 P.2d at 1375. We applied the rational basis test and concluded that treatment as a juvenile is not an inherent right, that the legislature may restrict or qualify that right, and that the legislative classification based upon age and gravity of the offense was rationally related to the legitimate state objective of deterring homicides committed by teenagers and protecting society from these violent offenders. Matter of Wood, 768 P.2d at 1376.

Matter of Wood, 768 P.2d at 1370, is distinguishable from the case sub judice. Matter of Wood involves the right to procedural due process, which we held is not a fundamental right. In this case, the appellants are challenging the actual loss of physical liberty, in addition to challenging the process by which sentence is imposed. As we stated earlier, physical liberty is a fundamental right requiring strict scrutiny. Also, Matter of Wood, 768 P.2d at 1374-76, involved the transfer statute, § 41-5-206, MCA, and an alleged right to be treated as a juvenile. The present appeals involve the EJPA, which while purporting to treat juveniles as adults in fact treats them more harshly than adults under similar circumstances. Our decision in Matter of Wood is thus not controlling of the issues presented herein.

B. Our Decision in Matter of C.S.:

We addressed an equal protection challenge to the disparate application of sentencing laws to minors as compared to adults in Matter of C.S. (1984), 210 Mont. 144, 687 P.2d 57. At the age of 15, C.S. was adjudged a delinquent youth for having committed the offense of violation of privacy in communication, a misdemeanor as provided in § 45-8-213, MCA. Matter of C.S., 687 P.2d at 58. At the dispositional hearing, C.S. was committed to the Department of Institutions until age 21, unless the Department deemed an earlier release appropriate. Thus, the maximum amount of time C.S. could have spent in the custody of the Department was six years. Matter of C.S., 687 P.2d at 58. This was considerably longer than the six-month maximum to which an adult could be sentenced for committing the same offense. For that reason, C.S. argued that her term of commitment violated the equal protection clause. Matter of C.S., 687 P.2d at 58. We concluded that adults and minors are not similarly situated with respect to Montana’s sentencing laws for three reasons. Matter of C.S., 687 P.2d at 59.

The three reasons propounded were: 1) a juvenile commitment is different from a criminal conviction because, given the stated policy of the Youth Court Act in 1984, a juvenile commitment is strictly for rehabilitation, not retribution; 2) in contrast to an adult, the liberty interests of a minor are subject to reasonable regulation by the State under the doctrine of parens patriae-, and 3) other jurisdictions have employed the parens patriae doctrine under similar youth court acts. Matter of C.S., 687 P.2d at 59.

Our decision in Matter of C.S., 687 P.2d at 57, predates the adoption of the EJPA. After review of the EJPA and the revised Youth Court Act, we conclude that the three distinctions drawn in Matter of C.S. between minors and adults do not apply in the context of these acts. As stated above in our discussion of Matter of C.H., given the new breadth of purpose of the Youth Court Act and the adult sentencing provisions of the EJPA, it is no longer accurate to state, as we did in Matter of C.S., 687 P.2d at 59, that a Youth Court disposition is “strictly for rehabilitation, not retribution.” Our holding in Matter of C.S. is thus distinguishable on that basis.

Furthermore, where the offender is sanctioned with an “adult” sentence, as under the EJPA, we cannot rely on the doctrine ofparens patriae to distinguish between the treatment of juveniles and adults. Parens patriae traditionally refers to the role of the State as sovereign or guardian of persons who are under a legal disability, such as juveniles — “the principle that the state must care for those who cannot take care of themselves, such as minors who lack proper care and custody from their parents.” Black’s Law Dictionary 1114 (6th ed. 1990). Where, as under the EJPA, the offender is no longer sentenced solely as a juvenile, but as an adult as well, the doctrine’s paternalistic rationale no longer applies.

Finally, the doctrine oí parens patriae must be applied consistently with Article II, Section 15 of the Montana Constitution which provides: “The rights of persons under 18 years of age shall include, but not be limited to, all the fundamental rights of this Article unless specifically precluded by laws which enhance the protection of such persons.” (Emphasis added.) In light of this clear constitutional guarantee, a juvenile enjoys all the rights and privileges of an adult unless the law at issue affords more, not less, protection to the juvenile. Our decision in Matter of C.S., 687 P.2d at 57, did not address the provisions of Article II, Section 15 and does not conflict with our conclusion that infringement of an EJPA offender’s liberty for a longer period of time than an adult under like circumstances does not enhance the juvenile’s rights.

CONCLUSION

Under the framework of the EJPA, a juvenile receives a juvenile disposition plus an adult sentence. If the juvenile violates the terms of the juvenile disposition, it is possible for the youth to serve a longer term of detention or imprisonment than an adult who has committed the same offense. The State has not shown a compelling interest to be advanced by this unequal treatment of similarly situated persons, nor has it shown that the EJPA provides juveniles with increased, rather than decreased, protection under the law. Therefore, we hold that the EJPA violates Article II, Section 4 (equal protection) and Article II, Section 15 (rights of minors).

Although the Youth Court Act, including the EJPA, is subject to a severability clause, our holding that the EJPA violates Article II, Sections 4 and 15 of the Montana Constitution goes to the heart of the EJPA. That is, the EJPA’s imposition of an adult sentence in addition to the juvenile disposition is necessary to the integrity of the EJPA and was the inducement to its enactment. Accordingly, the remaining provisions of the EJPA cannot be saved through application of the séverability clause. See Montana Auto. Ass’n v. Greely (1981), 193 Mont. 378, 399, 632 P.2d 300, 311.

Although our equal protection analysis differs considerably from that of the Thirteenth Judicial District Court in Matter of L.D. and Matter of J.A.T., that court nonetheless reached the right result. We affirm district court decisions which are correct regardless of the court’s reasoning in reaching the decision. Clark v. Eagle Systems, Inc. (1996), 279 Mont. 279, 927 P.2d 995. Accordingly, we affirm the District Court’s decision that the EJPA is unconstitutional. The Hill County Matter of J.L.C., the Gallatin County Matter of S.L.M. and the Gallatin County Matter of S.T. are remanded to those District Courts for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, NELSON, GRAY and REGNIER concur.

JUSTICE TRIEWEILER

specially concurring.

I concur with the majority’s conclusion that the Extended Jurisdiction Prosecution Act, found at §§ 41-5-1101 to -1105, MCA (1995), is unconstitutional. However, I conclude that it violates the prohibition against double jeopardy found at Article II, Section 25, of the Montana Constitution, by imposing multiple punishments for the same offense. Therefore, I would not reach the issue of whether it violates the youths’ constitutional right to equal protection pursuant to Article II, Sections 4 and 15, of the Montana Constitution.

Section 41-5-1104, MCA (1995), clearly provides for multiple punishments for the same offense. That section specifies that:

If a youth in an extended jurisdiction prosecution pleads guilty to or is found guilty of an offense described in 41-5-1102(l)(b), the court shall:
(a) Impose one or more juvenile dispositions under 41-5-523; and
(b) Impose an adult criminal sentence, the execution of which must be stayed on the condition that the youth not violate the provisions of the disposition order and not commit a new offense. If the youth violates the conditions of the stay or commits a new offense, the adult criminal sentence must be executed as provided in 41-5-1105.

(Emphasis added.)

Section 41-5-1104(a), MCA (1995), provides for imposition of those punishments established by the Youth Court Act. Subsection (b) provides for the concurrent imposition of an adult sentence which, although stayed, can be enforced at a later date.

The State contends that pursuant to our decision in State v. Zabawa (1996), 279 Mont. 307, 928 P.2d 151, and the United States Supreme Court’s decision in Missouri v. Hunter (1983), 459 U.S. 359, 103 S. Ct. 673, 74 L. Ed. 2d 535, cumulative punishments for a single offense do not violate the double jeopardy clauses of either the Fifth Amendment to the United States Constitution, or Article II, Section 25, of the Montana Constitution. While that may be the interpretation attached to the Federal Constitution by the United States Supreme Court, I would not follow that reasoning when applying our own constitutional prohibition against double jeopardy for the reasons stated in Justice Leaphart’s dissent to the Zabawa decision.

As this Court noted in State v. Johnson (1986), 221 Mont. 503, 513, 719 P.2d 1248, 1254, “states may interpret their own constitutions to afford greater protections than the Supreme Court of the United States has recognized in its interpretations of the federal counterparts to state constitutions.” Furthermore, as stated by Justice Leaphart in his dissent to this Court’s Zabawa decision:

I would decline to adopt the United States Supreme Court’s interpretation of the “multiple punishment” element of the Double Jeopardy Clause in Missouri v. Hunter (1983), 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535. Instead, I interpret the double jeopardy clause of Article II, Section 25 of the Montana Constitution, as providing substantive protection against multiple punishments irrespective of any legislative enactments.
... [W]e do a grave disservice to the framers of the Montana Constitution when we hold that a constitutional provision means nothing more than what the legislative branch intends it to mean. Constitutional guarantees are not mere vessels to be left empty or filled at the whim of the legislative branch. Rather, they have intrinsic meaning which is independent of any legislative intent. Contrary to this Court’s characterization of the issue, the question is not whether Article II, Section 25 of the Montana Constitution provides “greater protection” from double punishment than does the Fifth Amendment, the question is whether it provides any protection independently of what the legislature chooses to provide.
... The double jeopardy clause in Article II, Section 25, limits the power of all branches of government, including the legislature. Whether the legislature intends multiple punishments or not, as a matter of state constitutional law, such cumulative punishment is proscribed under the double jeopardy clause.

Zabawa, 279 Mont. at 323-26, 928 P.2d at 161-63 (Leaphart, J., dissenting).

We have previously recognized that the Fifth Amendment to the United States Constitution protects against multiple punishments for the same offense, and that Montana’s corresponding right provides the same protection. See State v. Nelson (1996), 275 Mont. 86, 90, 910 P.2d 247, 250. The Extended Jurisdiction Prosecution Act clearly provides multiple punishments for the same offense. It defies all principles of a constitutional system of government to suggest that the Legislature defines it own constitutional parameters. Therefore, based on the reasoning in the dissent to Zabawa, I would conclude that the Extended Jurisdiction Prosecution Act violates the prohibition against double jeopardy in the Montana Constitution and is unenforceable.

For these reasons, I concur with the result of the majority opinion, but express no view regarding the reasoning for the majority opinion.