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Small v. Montana Fourth Judicial District Court

Supreme Court of Montana

March 12, 2019

WILLIAM CURTIS SMALL, Petitioner,
v.
MONTANA FOURTH JUDICIAL DISTRICT COURT, MJSSOULA COUNTY, THE HONORABLE JOHN W. LARSON, PRESIDING, Respondent.

          ORDER

         Petitioner William Curtis Small seeks a writ of supervisory control over the Montana Fourth Judicial District Court to reverse that court's Order in Cause No. DC-18-344 denying Small's Motion to Dismiss and to bar that court from retrying him after it declared a mistrial during his trial. Small maintains that double jeopardy precludes retrial because the District Court declared a mistrial without manifest necessity. Hon. John W. Larson, District Court Judge, and the State of Montana have both responded to Small's application for writ.

         The circumstances leading to Small's application for writ began during his jury trial for Attempted Sexual Intercourse Without Consent. Near the end of the first day of trial, while cross-examining Officer Matt Kazinsky of the City of Missoula Police Department, Small's counsel asked him, "And sex assault investigations include rape and all the way to like misdemeanor sex touching, right?" The following morning, outside the presence of the jury, Judge Larson admonished counsel not to refer to the level of the offense.

         On the second day of trial, Small's cross-examination of Officer Kazinsky continued. The following exchange occurred:

Q. So if you come upon people who are intoxicated in public and there's genitalia exposed, it's possible that this is something similar to like a public intoxication, is that correct? That's a possibility, correct?
A. I mean, it's kind of speculative in the fact that, that would be a kind of different circumstances especially the call that came in and the description or the comments that came into dispatch and then our initial observations the minute we pull up.
Q. Okay.
A. But I mean certain elements of this investigation, yeah, it could be like you said public intoxication or indecent exposure at some point, I mean.
Q. Disorderly conduct?
A. Yeah, . . . but with this in particular it's right off the bat, I mean, we're looking at a ~ we're seeing elements of a certain specific crime. . . .

Counsel continued to question Officer Kazinsky about what had occurred between the time he arrived on scene until Small was placed under arrest for attempted sexual intercourse without consent:

Q. Okay. So there was some discussion among you and other law enforcement officers about what to do that evening, is that correct?
A. Yeah. So typically, several things to consider on a felony, in progress felony case like this or any type of felony case that's gonna be a bit more in depth, i.e. a sex crime. ... So it's not uncommon for us to either call an on duty detective to just give them a heads up because inevitably they're going to get the case - - being a felony, they're gonna get the case to do follow up. And it's not a bad idea for supervisors or any other officers investigating a felony case to just touch bases to make sure that everything is being covered.

         After Officer Kazinsky provided additional testimony into his thought process, counsel asked, "That process wouldn't happen in every felony case?" At that point, the court stated, "Now, folks, you're both way out of line. You know it. And we're just gonna go on to a new area."

         On redirect, the State asked Officer Kazinsky why he had called a detective during the investigation, and Officer Kazinsky responded, "Just like I mentioned before, just various reasons go through my head when we come across an in progress felony crime." At that point, the District Court declared a mistrial, explaining, "[I]t's ...


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