August 24 2010
DA 09-0558
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 186
STATE OF MONTANA,
Plaintiff and Appellee,
v.
FRANK JOACHIM KNOWLES,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDC 2008-197 Honorable Jeffrey M. Sherlock, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad M. Wright, Hooks & Wright, P.C., Helena, Montana
For Appellee:
Steve Bullock, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana
Leo Gallagher, Lewis and Clark County Attorney, Tara A. Harris, Deputy County Attorney, Helena, Montana
Submitted on Briefs: June 30, 2010
Decided: August 24, 2010
Filed:
__________________________________________ Clerk Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Frank Joachim Knowles (Knowles) appeals his conviction for felony assault with
a weapon in the First Judicial District Court. We reverse Knowles’ conviction and
remand this matter for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In September 2004, Knowles and his wife Cindy adopted a boy now named C.F.
In September 2006, they adopted another boy, B.K. B.K. is currently fifteen and C.F. is
eleven.
¶3 In April 2008, Frank, Cindy and the boys were residing in Lincoln, Montana. On
April 29, 2008, C.F. showed up at school with injuries to his face. At the time, Knowles
was out of town in Pennsylvania on a business trip. The school principal, Jilyn Oliveria
(Jilyn), reported the abuse and took photographs of C.F.’s face. Department of Public
Health and Human Services (DPHHS) social worker Jim Abrahamson (Abrahamson)
drove to Lincoln in order to interview C.F. By the time Abrahamson arrived at the
school, class had been dismissed for the day and the boys had gone home. Based on the
photographs taken by Jilyn, Abrahamson thought that C.F. had been slapped on the left
side of his face hard enough to leave a handprint. Abrahamson went to the boys’ home to
talk with C.F. and investigate the matter.
¶4 Abrahamson subsequently observed the injuries to C.F.’s face. C.F. told
Abrahamson that Cindy had slapped him several times on the face because he was talking
with food in his mouth. C.F. stated that he fell on the floor, and Cindy got on top of him
and continued to slap him. After interviewing C.F., Abrahamson concluded it was
2 necessary to remove both C.F. and B.K. from Cindy’s care. At the time, B.K. did not
report any injuries to Abrahamson and did not have any noticeable physical injuries.
Abrahamson placed the children with Jilyn, since there were no other readily-available
placements in Lincoln. On April 30, Abrahamson spoke with Knowles by telephone to
let him know that he had removed the boys from Cindy’s care and why he had done so.
¶5 Later that same day, Abrahamson took the boys to be examined by Dr. Thomas
Strizich (Dr. Strizich), a Helena pediatrician. B.K. was twelve years old at the time and
of below average height and weight. Dr. Strizich examined B.K. and discovered a series
of bruises on the back of his right thigh and hip area. The area of bruising measured
approximately fifteen centimeters. Dr. Strizich photographed the injuries.
¶6 B.K. subsequently told Dr. Strizich and Abrahamson that Knowles struck him with
a belt about fifteen to twenty times around the time that Knowles left on his business trip.
As he later testified, Dr. Strizich believed that the bruising he observed was consistent
with being struck with a belt. After the medical appointment, Abrahamson contacted
Knowles by telephone and asked him whether there had been an incident between him
and B.K. before he left on his trip. In recounting their conversation at trial, Abrahamson
told the jury that Knowles did not tell him of any incidents. Abrahamson told Knowles
about the bruising on the back of B.K.’s thigh. When Knowles returned from his
business trip several days later, he met with Abrahamson again. During this
conversation, Abrahamson claimed that Knowles admitted to spanking B.K. with a belt
prior to leaving on his business trip.
3 ¶7 Knowles and Cindy were subsequently charged with assault on a minor, in
violation of § 45-5-212, MCA. Their trials were separated. Prior to trial, the State filed
written notice of its intent to introduce against Knowles evidence of prior bad acts
pursuant to the criteria of the Modified Just Rule as set forth in State v. Matt, 249 Mont.
136, 814 P.2d 52 (1991). These criteria are as follows:
(1) The other crimes, wrongs or acts must be similar. (2) The other crimes, wrongs or acts must not be remote in time. (3) The evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (4) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
State v. Aakre, 2002 MT 101, ¶ 9, 309 Mont. 403, 46 P.3d 648.
¶8 Specifically, the State sought to introduce evidence of Knowles’ participation in
hitting his children with a belt, not allowing his children to leave their room, slapping the
children, and other acts against the boys. The State also sought to introduce evidence that
Cindy had been charged with assault of a minor, as well as evidence of C.F.’s injuries.
The District Court allowed the State to present this evidence at trial. Cindy was
convicted on November 18, 2008, and received a three-year sentence with the
Department of Corrections. Knowles’ trial was held on December 2, 2008. The jury was
unable to reach a verdict, and the District Court declared a mistrial.
¶9 After the mistrial, the State offered Knowles an open plea offer for the assault on a
minor charge. The State informed Knowles that if he did not accept this deal, it would
4 amend the charge to felony assault with a weapon. Felony assault with a weapon in
violation of § 45-5-213(1)(a), MCA, carries a maximum term of imprisonment of twenty
years, while felony assault on a minor carries a maximum term of only five years.
Knowles rejected the plea deal and exercised his right to go to trial a second time.
¶10 An amended information was filed on December 22, 2008. As promised, the State
charged Knowles with felony assault with a weapon. The State alleged that Knowles
purposefully or knowingly caused bodily injury to B.K. with a weapon by hitting him
multiple times with a belt in April 2008. In April 2009, the State again filed written
notice of its intent to introduce evidence of prior bad acts. Knowles opposed the
introduction of this evidence. He argued that because the assault with a weapon charge
was limited to his use of a belt against B.K. (as opposed to the previous general assault
charge), the bad act evidence previously admitted was no longer admissible. The District
Court, relying on State v. Murray, 228 Mont. 125, 741 P.2d 759 (1987), held that while
the first of the Modified Just Rule criteria (i.e., similarity of the prior acts) may not be
clearly met in an excessive discipline case, the other three criteria were met so as to allow
the admission of evidence of other acts of excessive discipline. Accordingly, the District
Court ruled that it would allow other evidence of Knowles’ actual physical or threatened
abuse of B.K. and C.F.; however, it limited evidence of Cindy’s conduct to the initial
slapping of C.F. which led to the charges against Knowles.
¶11 Prior to trial, Knowles sought to compel discovery of the evaluation, counseling
and written records of Abrahamson, and the files of a private evaluator, Wendy Bazinet,
as well as the records maintained by the Child and Family Services Division (CFSD) of
5 DPPHS. Knowles argued that because the counseling and investigations were initiated
by the State and were important in the previous trial, no claim of privilege to withhold
those documents existed. Although Knowles had been given a typed summary report
prepared by Abrahamson, he argued that this was insufficient to aid in his defense. The
District Court denied the motion after an in camera review of the CFSD material. The
District Court found that none of the documents in the CFSD file were relevant to the
charges and that there were no “smoking guns” which would provide any additional
insight into the case or would otherwise be discoverable under § 41-3-204(2), MCA.
¶12 A jury trial was held from June 15-17, 2009. B.K., C.F., Abrahamson, Knowles,
Dr. Strizich, Jilyn, defense expert Dr. Thomas Bennett, and others testified at trial.
During Jilyn’s testimony, the District Court admitted a photograph of C.F.’s facial
injuries over Knowles’ objection. The District Court gave a cautionary instruction
regarding the limited purposes of other bad act evidence at that time. Jilyn testified about
Cindy’s conduct towards the boys, the injuries she had witnessed on C.F., and that Cindy
had attempted to intimidate the boys when they were giving statements to Abrahamson.
B.K. and C.F. both testified about the punishments Knowles would administer to them.
B.K. testified that Knowles would have him lie face down on a bed with his pants pulled
down, and that Knowles would strike him with a belt on the bare skin as a form of
punishment. B.K. testified that he would receive multiple hits with the belt. B.K.
testified that Knowles caused the bruising to his thigh area when he hit him with a belt
prior to leaving on his business trip. However, B.K. also testified that Knowles would
6 fold the belt in half when administering this punishment, and never hit him with a belt
buckle.
¶13 Abrahamson testified about his investigation and the telephone conversation he
had with Knowles on April 30. Abrahamson told the jury that Knowles denied there had
been any incident between him and B.K. before he left on his business trip, and that
Knowles did not acknowledge disciplining B.K. with a belt until he spoke with
Abrahamson after returning from his trip. Knowles cross-examined Abrahamson about
this conversation, and unsuccessfully attempted to question Abrahamson about prior
statements on this topic which he had made in the previous trial. Additionally, Knowles
sought to question Abrahamson about whether he took any notes during their phone
conversation, since there were no notes of the April 30 conversation in Abrahamson’s
summary report. Abrahamson indicated that notes could possibly be in the CFSD
investigative file, but no notes had been produced at the time of trial.
¶14 At the close of the State’s case-in-chief, Knowles moved to preserve the records
from the CFSD investigative file so that Abrahamson’s notes from the April 30
conversation could be retrieved. The District Court advised Knowles that it had already
returned the file, but granted Knowles’ request to retrieve any notes. Knowles also
moved to dismiss the assault with a weapon charge on the basis of vindictive prosecution,
arguing that no additional evidence about the extent of B.K.’s injuries had been presented
by the State in its case-in-chief in the second trial, and that the State had enhanced the
charges against him from assault on a minor to assault with a weapon based solely upon
7 Knowles’ exercise of his right to go to trial a second time. The District Court took the
motion under advisement in order to give the State time to respond.
¶15 In his defense, Knowles called Dr. Bennett, a board-certified forensic pathologist,
to testify about the bruising on B.K. Dr. Bennett testified that the buckles of the belts in
evidence did not match the size of the distinctive marking which Dr. Strizich testified
was caused by the belt buckle. Dr. Bennett opined that the bruises had not been caused
by the belt, but instead appeared to be caused by multiple hits from a solid object at least
three inches long. Knowles called his friend William Wellenstein to testify as well.
Wellenstein testified that he saw B.K. and friends hitting each other with a jump rope on
the playground at school around the time of the alleged assault. Knowles himself
testified that he did not cause the bruising. He admitted using a belt to spank both C.F.
and B.K., but claimed he never hit them with a belt buckle. The State cross-examined
Knowles about his April 30 phone conversation with Abrahamson, and questioned why
Knowles had not informed Abrahamson of disciplining B.K. prior to leaving on the trip.
Knowles responded that he thought he had told Abrahamson about the incident, but was
unsure how much detail he had given him.
¶16 The jury convicted Knowles of assault with a weapon. Post-trial, the court
advised the parties that Knowles’ motion to supplement the record with regard to
Abrahamson’s testimony about the April 30 telephone conversation was granted;
however, CFSD later reported to the court that the investigative file did not contain any
notes about this telephone conversation.
8 ¶17 At the sentencing hearing, the District Court denied Knowles’ motion to dismiss
the charge based on vindictive prosecution. However, when the State recommended a
sentence of twenty years in the Montana State Prison with five years suspended, the
District Court expressed surprise at the length of the sentence, especially given the fact
that the original charge of assault with a minor had carried a much shorter sentence.
Upon query by the court, the State explained that prior to the first trial it had offered a
plea deal on partner family member assault, with some jail time and a suspended
sentence. When that proposal was rejected, the State went to trial on the assault on a
minor charge against Knowles. The State then explained that after the mistrial, it offered
an open plea agreement for assault on a minor, but informed Knowles it would amend to
assault with a weapon if he did not accept the deal. Near the end of the hearing, the
District Court commented that the recommended sentence was harsher than other
sentences previously recommended by the State for more violent crimes. In response, the
State explained that it felt Knowles was deserving of a harsher sentence because the case
involved young children whose lives had been completely altered, and because Knowles
had been engaged in a pattern of chronic abuse against the children. The District Court
ultimately imposed a ten year sentence with all but six months suspended.
¶18 Knowles appeals his conviction. We state the issues on appeal as follows:
¶19 Issue One: Did the District Court err in denying Knowles’ motion to dismiss the
assault with a weapon charge based on prosecutorial vindictiveness?
¶20 Issue Two: Did the District Court abuse its discretion when it admitted evidence
of Cindy’s abuse of C.F.?
9 ¶21 Issue Three: Did the District Court impair Knowles’ ability to present his
defense and effectively cross-examine Abrahamson, by denying him access to the CFSD
investigative file?
STANDARD OF REVIEW
¶22 We review a district court’s evidentiary rulings on the relevancy and admissibility
of evidence for an abuse of discretion. Aakre, ¶ 8. A district court’s decision to admit
evidence of other crimes, wrongs, or acts under the Modified Just Rule is reviewed under
the abuse of discretion standard as well. Aakre, ¶ 8. An abuse of discretion occurs if the
court acts arbitrarily without the employment of conscientious judgment, or exceeds the
bounds of reason resulting in substantial injustice. State v. Passmore, 2010 MT 34, ¶ 51,
355 Mont. 187, 225 P.3d 1229.
¶23 The denial of a motion to dismiss in a criminal case presents a question of law
which we review de novo. Passmore, ¶ 39 (citing State v. Giddings, 2009 MT 61, ¶ 42,
349 Mont. 347, 208 P.3d 363). Findings of fact in support of such a decision are
reviewed under the clearly erroneous standard. Passmore, ¶ 39.
DISCUSSION
¶24 Issue One: Did the District Court err in denying Knowles’ motion to dismiss the assault with a weapon charge based on prosecutorial vindictiveness?
¶25 Knowles argues that the assault with a weapon charge should have been dismissed
based on prosecutorial vindictiveness. At the first trial, Knowles was charged with
assault on a minor, which carries a maximum imprisonment of five years. After the
mistrial, the State charged him with assault with a weapon, which carries a maximum
10 term of twenty years imprisonment. Knowles contends that the increased charge was
levied solely because he exercised his right to go to trial a second time, rather than accept
a plea deal.
¶26 Knowles argues that under Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098
(1974), and North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072 (1969), overruled on
other grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201 (1989), he may not be
penalized with the imposition of a harsher sentence or increased charges merely for
exercising his right to go to trial after the first mistrial. Citing United States v. Groves,
571 F.2d 450 (9th Cir. 1978), he contends that vindictiveness will be presumed when the
circumstances surrounding the prosecutorial decision at issue create the appearance of
vindictiveness. Such a presumption of vindictiveness arises here, he argues, because the
evidence presented in the second trial was not different or more serious than the evidence
presented in the first trial. Lacking new evidence to justify the heightened charge,
Knowles reasons that the only conclusion to be reached is that the State increased the
charges because he refused to accept a plea bargain. He therefore urges us to reverse the
District Court’s refusal to dismiss on the basis of vindictiveness, and remand for
reinstatement of the original charge of assault on a minor.
¶27 In response, the State notes that it notified Knowles after the mistrial in the first
case that it would hold an open plea deal to assault with a minor, and that if he failed to
take the deal it would amend to assault with a weapon. When Knowles failed to respond,
the State filed the amended information. The State contends that under State v. Smith,
280 Mont. 158, 931 P.2d 1272 (1996) and State v. Mahoney, 264 Mont. 89, 870 P.2d 65
11 (1994), it could have charged Knowles with assault with a weapon at the first trial, and
that its decision not to do so, as well as its decision to charge assault with a weapon
during the second trial, were decisions made squarely within its prosecutorial discretion.
See Mahoney, 264 Mont. at 96, 870 P.2d at 70 (quotation and emphasis omitted) (“When
the facts of a case support a possible charge of more than one crime, the crime to be
charged is a matter of prosecutorial discretion.”). Accordingly, the State argues that the
decision to increase the charge was an act of prosecutorial discretion and not
vindictiveness, and that Knowles’ conviction should be affirmed.
¶28 In United States v. Goodwin, 457 U.S. 368, 102 S. Ct. 2485 (1982), the United
States Supreme Court stated the rule regarding “vindictive prosecution” as follows:
To punish a person because he has done what the law plainly allows h i m t o d o i s a d u e p r o c e s s v i o l a t i o n “ of the most basic sort.” Bordenkircher v. Hayes, 434 U.S. 357, 363. In a series of cases beginning with North Carolina v. Pearce and culminating in Bordenkircher v. Hayes, the Court has recognized this basic—and itself uncontroversial—principle. For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right. The imposition of punishment is the very purpose of virtually all criminal proceedings. The presence of a punitive motivation, therefore, does not provide an adequate basis for distinguishing governmental action that is fully justified as a legitimate response to perceived criminal conduct from governmental action that is an impermissible response to noncriminal, protected activity. Motives are complex and difficult to prove. As a result, in certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right, the Court has found it necessary to “presume” an improper vindictive motive. Given the severity of such a presumption, however—which may operate in the absence of any proof of an improper motive and thus may block a legitimate response to criminal conduct—the Court has done so only in cases in which a reasonable likelihood of vindictiveness exists.
Goodwin, 457 U.S. at 372-73, 102 S. Ct. at 2488 (footnote omitted).
12 ¶29 The Goodwin court noted that since even the “fear of vindictiveness” may
unconstitutionally deter a defendant from exercising a right to appeal or otherwise attack
his conviction, due process requires that a “defendant be freed of apprehension of such
retaliatory motivation on the part of the sentencing judge.” Goodwin, 457 U.S. at 373-74,
102 S. Ct. at 2489 (quotation omitted). In order to assure the absence of such
vindictiveness, the court held that,
“[Whenever] a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.”
Goodwin, 457 U.S. at 374, 102 S. Ct. at 2489 (quoting Pearce, 395 U.S. at 726, 89 S. Ct.
at 2081) (alteration in original).
¶30 The Court then discussed the case of Blackledge as illustrative of this principle. In
that case a defendant in North Carolina was convicted of misdemeanor assault with a
weapon and given a six-month sentence. After his conviction, he appealed for a de novo
trial in North Carolina’s Superior Court. The prosecutor then indicted him for felony
assault with a deadly weapon with intent to kill. Blackledge, 417 U.S. at 23, 94 S. Ct. at
2100. The United States Supreme Court held that it was not constitutionally permissible
for the state to bring the increased charge against the defendant for exercising his
statutory right to appeal his conviction for a de novo trial. Blackledge, 417 U.S. at 28-29,
94 S. Ct. at 2103. The Supreme Court held that “[a] person convicted of an offense is
13 entitled to pursue his statutory right to a trial de novo, without apprehension that the State
will retaliate by substituting a more serious charge for the original one, thus subjecting
him to a significantly increased potential period of incarceration.” Blackledge, 417 U.S.
at 28, 94 S. Ct. at 2102-03. The Blackledge court stated as follows:
A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a trial de novo in the Superior Court, since such an appeal will clearly require increased expenditures of prosecutorial resources before the defendant’s conviction becomes final, and may even result in a formerly convicted defendant’s going free. And, if the prosecutor has the means readily at hand to discourage such appeals—by ‘upping the ante’ through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedy—the State can insure that only the most hardy defendants will brave the hazards of a de novo trial.
Blackledge, 417 U.S. at 27-28, 94 S. Ct. at 2102.
¶31 In summarizing the Blackledge case, the Goodwin court noted that “in
Blackledge . . . it did not matter that no evidence was present that the prosecutor had
acted in bad faith or with malice in seeking the felony indictment. As in Pearce, the
Court held that the likelihood of vindictiveness justified a presumption that would free
defendants of apprehension of such a retaliatory motivation on the part of the
prosecutor.” Goodwin, 457 U.S. at 376, 102 S. Ct. at 2490 (footnote omitted).
¶32 However, in the Goodwin case itself, the Supreme Court found no prosecutorial
vindictiveness. Goodwin involved several misdemeanor charges which were increased to
felony charges after Goodwin fled the court’s jurisdiction for three years, and upon
return, refused to plead to the misdemeanor charges. Goodwin was subsequently
convicted on all felony counts. Goodwin moved to set aside his conviction on the
14 grounds of prosecutorial vindictiveness. Goodwin, 457 U.S. at 371, 102 S. Ct. at 2488.
The motion was denied by the federal district court, but the Court of Appeals reversed
Goodwin’s conviction. The government appealed to the United States Supreme Court,
which rejected Goodwin’s arguments and reinstated his conviction.
¶33 In rejecting Goodwin’s argument for prosecutorial vindictiveness, the court noted
that the presumption of vindictive prosecution does not generally apply to pretrial plea
negotiations between the State and the defendant. In the case of Bordenkircher, for
instance, the court held that due process “did not prohibit a prosecutor from carrying out
a threat, made during plea negotiations, to bring additional charges against an accused
who refused to plead guilty to the offense with which he was originally charged.”
Goodwin, 457 U.S. at 377, 102 S. Ct. at 2490-91 (discussing Bordenkircher). The court
held that the “give and take” of negotiations in the pretrial context did not constitute an
attempt to punish a defendant for exercising a constitutional right, so long as the
defendant was free to accept or reject the offer made by the prosecution. Bordenkircher,
434 U.S. at 363, 98 S. Ct. at 668. As stated by the court in Goodwin,
An initial indictment—from which the prosecutor embarks on a course of plea negotiation—does not necessarily define the extent of the legitimate interest in prosecution. For just as a prosecutor may forgo legitimate charges already brought in an effort to save the time and expense of trial, a prosecutor may file additional charges if an initial expectation that a defendant would plead guilty to lesser charges proves unfounded.
Goodwin, 457 U.S. at 380, 102 S. Ct. at 2492 (discussing Bordenkircher).
¶34 Elaborating upon this discussion—and critical to our decision here—the Goodwin
court then went on to hold as follows:
15 There is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor’s assessment of the proper extent of prosecution may not have crystallized. In contrast, once a trial begins—and certainly by the time a conviction has been obtained—it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.
Goodwin, 457 U.S. at 381, 102 S. Ct. at 2492-93 (emphasis added).
¶35 Applying the reasoning expressed in Goodwin, we conclude that there exists the
appearance and reasonable likelihood of prosecutorial vindictiveness in this case. See
Groves, 571 F.2d at 453 (“it is the appearance of vindictiveness, rather than
vindictiveness in fact, which controls.”) (emphasis in original). After the mistrial, the
parties were not in a standard “pretrial” plea bargaining situation. The facts and
witnesses were known, and “the State [had] discovered and assessed all of the
information against [the] accused and [had] made a determination, on the basis of that
information, of the extent to which he should be prosecuted.” Goodwin, 457 U.S. at 381,
102 S. Ct. at 2493. Knowles had exercised his right to a jury trial, which resulted in a
mistrial. Between the first and second trial, no new information was revealed concerning
either the extent of B.K.’s injuries or Knowles’ conduct. In spite of the lack of any new
evidence, the State sought to quadruple the range of punishment to be imposed on
Knowles, after he declined to plea to the original charges. Upon invitation to do so by
16 the District Court, the State was unable to provide any factual rationale for the increased
charges and increased punishment, arguing only that these acts were within its discretion.
Even the District Court Judge, who described himself as a “hard sentencer,” expressed
surprise at the level of punishment sought by the State in this case. In light of the
foregoing, we are constrained to agree with Knowles that because no new factual
information was uncovered after the first trial which would justify a decision to increase
the charges, the threat of a four-fold increase in punishment has the appearance of
prosecutorial vindictiveness, and raises the reasonable likelihood that the State was
simply utilizing the increased charges in an effort to deter Knowles from exercising his
right to a second jury trial.
¶36 Although the dissent is critical of our resolution of this issue, we emphasize that
the situation at bar is fundamentally different from the “give and take” of pretrial plea
negotiations which occurs every day in our judicial system. Before a trial has actually
taken place, the State enjoys broad discretion in its charging decisions. See Smith, 280
Mont. at 165, 931 P.2d at 1276 (citing Bordenkircher) (“Confronting a defendant with the
risk of more severe punishment following the rejection of a plea bargain cannot form the
basis for a claim of prosecutorial vindictiveness. Allowing such a claim would contradict
the premises that underlie the accepted practice of plea bargaining.”). But as the
Goodwin decision makes clear, the occurrence of a first trial on the merits of the charges
changes the calculus significantly with respect to a prosecutor’s subsequent charging
decisions. If new evidence or information comes to light between the trials which
justifies the decision to increase the charges, a decision to “up the ante” may well be
17 appropriate. However, when there is no new evidence and no new information to inform
its charging decision, a decision to increase the charges and the range of punishment in
that situation raises the reasonable likelihood of a vindictive prosecution.
¶37 Accordingly, we reverse Knowles’ conviction for assault with a weapon and
remand for a new trial on the charge of assault on a minor. In the interests of judicial
efficiency, we address the other issues raised by Knowles to provide guidance to the
District Court upon remand.
¶38 Issue Two: Did the District Court abuse its discretion when it admitted evidence of Cindy’s abuse of C.F.?
¶39 Knowles contends the District Court abused its discretion and committed
reversible error when it admitted evidence of Cindy’s abuse of C.F. under the Modified
Just Rule. Knowles argues that all four criteria of the Modified Just Rule must be met
under State v. Ayers, 2003 MT 114, 315 Mont. 395, 68 P.3d 768, in order for prior bad
act evidence to admitted. In this case, however, the District Court determined that
evidence in an “excessive discipline” case could be admitted pursuant to Murray, even if
the first of the Modified Just Criteria was not met. Aside from this general error in the
District Court’s reasoning, Knowles also argues that the “other acts” of Cindy’s assault of
C.F. were simply not similar to the allegations that he assaulted B.K. with a belt.
Furthermore, Knowles argues that the “other purposes” for which the evidence of
Cindy’s conduct against C.F. was admitted, such as to prove plan, motive, or intent, were
not relevant to an actual issue in controversy for the assault charge.
18 ¶40 Knowles also contends that evidence of Cindy’s conduct had limited probative
value, and was unduly prejudicial and confusing to the jury. By admitting photographic
evidence of the injury Cindy caused to C.F. and discussing her conduct towards the boys,
Knowles contends he was forced to overcome guilt by association and was exposed to the
likelihood that the jury would convict him because of the impression that he—along with
his wife—was a bad parent who deserved punishment. Furthermore, the evidence of
Cindy’s conduct distracted the jury from the real issue in controversy—whether Knowles
committed assault with a weapon during a specific instance in April 2008. For these
reasons, Knowles argues that the evidence of Cindy’s conduct was inflammatory, caused
him prejudice, and was not harmless error.
¶41 The State urges us to affirm. The State argues that the evidence of Cindy’s
conduct was not prohibited by M. R. Evid. 404(b), or even governed by the Modified Just
Rule, under State v. Kolb, 2009 MT 9, 349 Mont. 10, 200 P.3d 504. Specifically, the
State contends that because this evidence relates to Cindy’s conduct, and not to Knowles
himself, it is relevant and admissible.1
¶42 In the District Court, the State argued that evidence of Cindy’s conduct was
admissible as evidence of other crimes, wrongs, or acts, pursuant to the Modified Just
Rule. The State now changes its legal theory on appeal, arguing that this evidence is not
covered by M. R. Evid. 404(b) or the Modified Just Rule. We decline to consider the
1 The State alternatively argues that the admission of this evidence constitutes harmless error under State v. Van Kirk, 2001 MT 184, 306 Mont. 215, 32 P.3d 735. Because we are reversing Knowles’ conviction on the basis of Issue One, we need not reach this argument.
19 State’s change in legal theory. See State v. Malkuch, 2007 MT 60, ¶ 17, 336 Mont. 219,
154 P.3d 558.
¶43 We conclude that the District Court abused its discretion in admitting evidence of
Cindy’s conduct towards C.F., including photographic evidence of his injuries. As an
initial matter, Knowles is correct that all four criteria of the Modified Just Rule must be
satisfied in order to admit evidence of other crimes, wrongs, or acts. In Ayers, we held
that all four criteria of the Modified Just Rule must be satisfied and explicitly overruled
any previous case law which implied the contrary. Ayers, ¶ 76. Thus, to the extent the
District Court relied on Murray, which was decided in 1986, to excuse the State from
having to prove that all four criteria of the Modified Just Rule were satisfied, this
decision was in error. Moreover, it is axiomatic that the “other acts” admissible under the
Modified Just Rule must be acts of the defendant, and not acts of a third party “except in
limited circumstances where the defendant is attempting to inculpate another person for
the crime.” Kolb, ¶ 21 (citing State v. Clifford, 2005 MT 219, ¶ 44, 328 Mont. 300, 121
P.3d 489).
¶44 We conclude that in any event, evidence of Cindy’s conduct in relation to C.F. and
B.K. was irrelevant and not probative on the assault with a weapon charge against
Knowles. The District Court stated it would allow the evidence of Cindy’s slapping C.F.
for the purpose of informing the jury how the charges eventually came to be brought
against Knowles. However, the District Court could have instructed the State to briefly
inform the jury of how the investigation was started without allowing repeated references
to Cindy’s conduct and without admitting photographic evidence of C.F.’s injuries at
20 trial. See State v. Derbyshire, 2009 MT 27, ¶¶ 39-40, 349 Mont. 114, 201 P.3d 811
(stating that repeated references to defendant’s status as a probationer and involvement of
probation officers in discovering drug evidence were not necessary in order to explain
drug possession charges to the jury). Given the potential prejudice resulting from
evidence of Cindy’s conduct and given that it had no probative value in determining
whether Knowles committed assault with a weapon, we conclude the District Court
abused its discretion in allowing the introduction of such evidence at trial.2
¶45 Issue Three: Did the District Court impair Knowles’ ability to present his defense and effectively cross-examine Abrahamson, by denying him access to the CFSD investigative file?
¶46 Knowles contends the District Court erred by denying him access to the CFSD
investigative file. He argues that he was entitled to review the file under § 46-15-322,
MCA. Knowles argues that the in camera review of this material by the District Court
impaired his ability to present his defense, and contends that the court improperly limited
its review to “smoking guns.” Knowles contends that had he been allowed to review the
file, then the lack of notes regarding the April 30, 2008 conversation would have been
fertile ground for cross-examining and impeaching Abrahamson, especially since he
implied during his testimony that he did have notes of their conversation when, in fact,
such notes did not exist. Knowles further argues that the file was essential to establishing
Abrahamson’s lack of credibility, asserting that Abrahamson testified at Cindy’s trial that
2 We acknowledge that the range of admissible evidence relative to an assault on a minor charge may well be different than that admissible in an assault with a weapon case. However, we can conceive of no reason why photographic evidence of C.F.’s injuries should be admitted upon retrial.
21 Knowles told him of the disciplining incident during the April 30 phone conversation, but
testified to the contrary at Knowles’ second trial. Knowles therefore contends he was
stripped of his ability to properly question Abrahamson without access to the CFSD
investigative file and that his conviction should be reversed by virtue of this error.
¶47 The State argues the District Court did not err in the manner in which it handled
Knowles’ discovery request. The State contends it did not deny Knowles’ request for the
file. It argues that since the information in the CFSD file is confidential pursuant to State
v. Little, 260 Mont. 460, 861 P.2d 154 (1993), and § 41-3-205, MCA, the District Court
was required to conduct an in camera review and simply could not release the file to
Knowles. The State further argues that Knowles overstates the role that the absence of
Abrahamson’s notes played in the trial in light of Abrahamson’s actual testimony. In this
connection, the State argues that Abrahamson never unequivocally testified that he took
notes of the phone conversation, but instead testified that notes would be in the file if he
had taken them. The State also contends that Knowles never directly asked Abrahamson
if he did or did not take notes during their phone conversation. Thus, the State argues
that the absence of notes in the CFSD file would not have had any great significance at
trial.
¶48 Section 46-15-322(4), MCA, requires the State to disclose “material and
information in the possession or control of members of the prosecutor’s staff and of any
other persons who have participated in the investigation or evaluation of the case.” At
the same time, the information contained in a CFSD investigative file in abuse and
neglect cases is deemed confidential under § 41-3-205(1), MCA. However, subsection
22 (2) of this statute provides that “[r]ecords may be disclosed to a court for in camera
inspection if relevant to an issue before it. The court may permit public disclosure if it
finds disclosure to be necessary for the fair resolution of an issue before it.” Section
41-3-205(2), MCA.
¶49 A defendant in a criminal trial has a constitutional right to a meaningful
opportunity to present a complete defense. State v. Glick, 2009 MT 44, ¶ 29, 349 Mont.
277, 203 P.3d 796. The State has an affirmative duty to disclose evidence to a defendant
under Montana law. As we stated in State v. Stewart, 2000 MT 379, 303 Mont. 507, 16
P.3d 391, “Montana’s statutory requirements do not hinge on whether the evidence is
exculpatory or inculpatory. The plain language of § 46-15-327, MCA, simply mandates
that the State disclose all additional information or material within the State’s
possession.” Stewart, ¶ 23.
¶50 In the present case, Knowles’ complaint with the District Court’s handling of the
CFSD investigative file focuses on the absence of notes from Abrahamson’s April 30,
2008 phone conversation with Knowles. Knowles claims that Abrahamson bolstered his
own credibility by implying that he took notes of this conversation. He complains that if
he had been granted access to the CFSD investigative file prior to trial, he would have
known in advance that Abrahamson did not take any notes of the April 30 conversation,
and he would have been able to impeach any testimony from Abrahamson to the
contrary, whether made implicitly in the current trial or directly during Cindy’s trial.
¶51 We fail to see how the lack of such evidence, even if it permitted impeachment of
Abrahamson and bolstered the testimony of Knowles, would have impacted Knowles’
23 ability to present a defense in this case. Knowles knew prior to the second trial that
Abrahamson claimed to have taken some notes of their conversation during Cindy’s trial.
Thus, Knowles could have requested that Abrahamson specifically produce the notes, or
be prohibited from referring to them at trial. Knowles never made such a request.
Moreover, it bears repeating that the only real disputed fact at trial was whether Knowles
inflicted bodily injury on B.K. prior to leaving on his trip. Even if it were established that
Knowles told Abrahamson he had punished B.K. prior to leaving on his trip, it is unclear
how such evidence would have any impact on the disputed material elements of the
assault with a weapon charge.
¶52 We acknowledge that Knowles raises an important issue regarding the right of a
defendant to present a complete defense in those cases where the contents of a CFSD
investigative file are arguably important to the defendant’s ability to present his defense.
There may be cases in which restricted access to the CFSD file could infringe upon a
defendant’s right to present a complete defense or where an in camera review by the
district court would be insufficient. Thus, we decline to categorically endorse the
“smoking gun” approach used by the District Court as correct in all circumstances,
because we cannot predict how critical the contents of a CFSD investigative file might be
in other cases. In this specific case, however, we conclude that the District Court’s
approach was appropriate and that Knowles’ ability to present his defense was not
impaired.
CONCLUSION
24 ¶53 We reverse and remand Knowles’ conviction on the basis of prosecutorial
vindictiveness. Furthermore, we hold that the admission of photographic evidence of
C.F.’s injuries, as well as other evidence of Cindy’s prior bad acts, constituted an abuse
of discretion. Finally, we hold that the District Court did not abuse its discretion in
conducting an in camera review of the CFSD investigative file, and refusing to disclose
the contents of the entire file to Knowles. Reversed and remanded for a new trial on the
charge of assault on a minor.
/S/ PATRICIA COTTER
We concur:
/S/ W. WILLIAM LEAPHART /S/ JIM RICE
Justice James C. Nelson, specially concurring.
¶54 I join the Court’s Opinion on Issues One and Three. With respect to Issue Two, I
concur in the Court’s decision but write separately to explain my views on that issue.
¶55 The Court holds that all four criteria of the Modified Just Rule must be satisfied in
order to admit evidence of other crimes, wrongs, or acts. Opinion, ¶ 43. This is a correct
statement of the law as it presently stands. See State v. Ayers, 2003 MT 114, ¶ 76, 315
Mont. 395, 68 P.3d 768. However, I have recently concluded that the Modified Just Rule
does not accurately reflect or implement the narrow purpose of M. R. Evid. 404(b), but
rather impedes the legitimate use of uncharged misconduct evidence and, moreover, has
25 generated a great deal of confusion and misconceptions in this area of law. See State v.
Stout, 2010 MT 137, ¶¶ 75, 79, 93-102, 356 Mont. 468, ___ P.3d ___ (Nelson, J.,
dissenting). Among other things, I proposed in Stout that we should jettison the first two
substantive requirements of the Modified Just Rule (similarity and nearness in time), see
Stout, ¶ 102, since these two criteria do not apply to every nonpropensity purpose for
which uncharged misconduct evidence might be offered, see e.g. Stout, ¶ 99 (noting that a
dissimilar crime (e.g., a carjacking) might be admissible to show the defendant’s overall
plan to use the car in the charged offense (e.g., a kidnapping), which in turn shows that he
is the perpetrator of that offense and had the requisite mens rea). I still maintain that, in
the proper case, we should revise the Modified Just Rule so that it conforms to the actual
purpose and scope of Rule 404(b).
¶56 For the reasons stated in ¶ 44 of the Court’s Opinion, however, it is not necessary
to reexamine the Modified Just Rule in the present case. Accordingly, with the foregoing
caveat, I concur in the Court’s decision on Issue Two.
/S/ JAMES C. NELSON
Chief Justice Mike McGrath, concurring in part and dissenting in part.
¶57 I concur with the Court’s ruling on Issue three and with the result on Issue two. I
dissent on Issue one.
26 ¶58 The admission of the photograph depicting an injury caused to one of the boys by
the defendant’s wife was reversible error. It was not admissible under M. R. Evid. 402 as
it was not relevant to the determination of the crime charged. Even had the photograph
been relevant, it should have been excluded as prejudicial and misleading pursuant to M.
R. Evid. 403. Nor do the provisions of M. R. Evid. 404(b) allow for the photograph’s
admission under the facts of this case.
¶59 However, I dissent on whether the prosecutor’s offer to allow the defendant to
plead guilty to one felony before amending the charge to a different felony with a greater
penalty was vindictive behavior under the law. Prosecutors in Montana have wide
discretion to determine the offense charged as long as the facts alleged support the
charge. State v. Mahoney, 264 Mont. 89, 96, 870 P.2d 65, 70 (1994) (quoting State v.
Booke, 178 Mont. 225, 230, 583 P.2d 405, 408 (1978) (“When the facts of a case support
a possible charge of more than one crime, the crime to be charged is a matter of
prosecutorial discretion.”)). A prosecutor may move the court to amend an information
in matters of substance at any time up to five days before trial. Section 46-11-205(1),
MCA.
¶60 This Court has squarely addressed the issue of vindictive prosecution before:
Confronting a defendant with the risk of more severe punishment following the rejection of a plea bargain cannot form the basis for a claim of prosecutorial vindictiveness. Bordenkircher v. Hayes (1978), 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604. Allowing such a claim would contradict the premises that underlie the accepted practice of plea bargaining.
State v. Smith, 280 Mont. 158, 165, 931 P.2d 1272, 1276 (1996).
27 ¶61 Indeed, the facts here present nothing more vindictive than the “accepted practice
of plea bargaining.” Regrettably, the majority opinion’s creation of a presumption of
vindictive prosecution under these facts undermines the plea bargaining process.
Moreover, the majority misinterprets U.S. Supreme Court decisions in order to apply this
presumption. The U.S. Supreme Court upheld the constitutionality of plea bargaining in
Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663 (1978). The Court applied a
presumption of vindictive prosecution to hold that the State denied a defendant due
process by charging him with a felony after he appealed and obtained a trial de novo of a
misdemeanor conviction for the same conduct. Blackledge v. Perry, 417 U.S. 21, 27-29,
94 S. Ct. 2098, 2102-03 (1974). However, the Court declined to apply a presumption of
prosecutorial vindictiveness to pretrial plea negotiations that resulted in increasing
misdemeanor charges to felony charges when the defendant refused to plead. U.S. v.
Goodwin, 457 U.S. 368, 381-84, 102 S. Ct. 2485, 2492-94 (1982).
¶62 The key factual difference that accounts for the U.S. Supreme Court applying a
presumption of vindictive prosecution is the existence of a conviction for the original
charges. Knowles first felony trial resulted in a mistrial. Shortly thereafter, the State
charged Knowles with felony assault with a weapon on December 22, 2008. He was
convicted after a trial held June 15-17, 2009. This timing comports with § 46-11-205(1),
MCA, and falls within the bounds of prosecutorial discretion. Unlike Blackledge,
Knowles did not appeal from a conviction. Like Goodwin, the charges against Knowles
were increased during pretrial negotiations, well before he was convicted. To hold that a
presumption of vindictive prosecution applies to these facts is an overreaction that creates
28 an unworkable precedent. Our precedent does not require such a presumption and the
Court’s holding will only undermine principles of judicial economy promoted by plea
negotiations.
¶63 I would not apply a presumption of vindictive prosecution, and therefore dissent
from the Court’s holding.
/S/ MIKE McGRATH