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.
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
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.
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
Q. Okay. So there was some discussion among you and other law
enforcement officers about what to do that evening, is that
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.
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."
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 ...