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State v. Flores12/30/1998
Submitted on Briefs August 20, 1998.
1 On June 28, 1996, Juan Jose Flores was charged by information in the Twenty-First Judicial District Court in Ravalli County with aggravated assault in violation of § 45-5-202(1), MCA. On December 18, 1996, a jury found Flores guilty of aggravated assault. On April 11, 1997, Flores filed a notice of appeal. We affirm the judgment of the District Court.
2 The issues presented on appeal are as follows:
3 1. Did the District Court err when it denied Flores' motion for a mistrial after the State arrested a defense witness in the presence of the jury?
4 2. Did the District Court err when it allowed the State to introduce photographs of the victim's wounds?
5 3. Did the District Court err when it limited Flores' impeachment of Milton Harshbarger?
6 4. Did the District Court err when it denied Flores' request to treat Milton Harshbarger as a hostile witness?
7 5. Did the District Court err when it denied Flores' instruction on the lesser included offense of misdemeanor assault?
8 6. Does the doctrine of double jeopardy bar further prosecution in this case?
FACTUAL BACKGROUND
9 On June 12, 1996, outside a bar near Hamilton, Juan Flores cut Mike Rosling's forearm with a knife. Rosling was required to undergo surgery and extensive physical therapy, and can no longer work at his occupation because of his injuries. At trial, Flores claimed that he cut Rosling in self-defense because Rosling approached him while swinging a belt with a buckle. Rosling claimed that Flores attacked him as Rosling was backing away from Flores with his arm above his head for protection from Flores' knife.
ISSUE 1
10 Did the District Court err when it denied Flores' motion for a mistrial after the State arrested a defense witness in the presence of the jury?
11 When considering whether to grant or deny a mistrial we have held that the trial court must consider whether the defendant has been denied a fair and impartial trial. See State v. Partin (1997), 287 Mont. 12, 15, 951 P.2d 1002, 1005. A mistrial is considered an extreme remedy, only to be granted for manifest necessity as required by the ends of justice. See State v. Brush (1987), 228 Mont. 247, 252-53, 741 P.2d 1333, 1336. Consequently, trial judges are encouraged to consider alternatives to a mistrial, such as cautionary instructions. See State v. Moran (1988), 231 Mont. 387, 391, 753 P.2d 333, 336, cert. denied (1988), 488 U.S. 826, 109 S.Ct. 75, 102 L.Ed.2d 52.
12 On appeal, we review the trial court's decision for an abuse of discretion. See Moran 231 Mont. at 389, 753 P.2d at 336. If the trial judge acted rationally and responsibly, we will affirm his or her decision. See Moran, 231 Mont. at 389, 753 P.2d at 335.
13 Robert Fix testified as a defense witness at Flores' trial. At the close of Fix's testimony, he was arrested by the courtroom bailiff on an outstanding warrant for nonappearance in a DUI case. The arrest occurred in open court and in the presence of the jury. Flores requested that the District Court admonish the State and inform the jurors that they should disregard the incident. The District Court admonished the jurors as follows:
Ladies and gentlemen, as you saw, Mr. Fix was taken into custody by the sheriff's office in connection with an unrelated matter. You are not to let that interfere with the evaluation of his testimony. That has nothing to do with his testimony today, and you're not to consider it in evaluating whether or not you find his testimony to be credible.
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