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State v. Hardaway12/10/2001
APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Diana G. Barz, Judge presiding.
Heard: April 30, 2001
Submitted: May 17, 2001
On June 8, 1999, a jury in the Thirteenth Judicial District Court, Yellowstone County, found Jason Hardaway (Hardaway) guilty of burglary. Hardaway appeals from this verdict. We reverse.
Hardaway raises three issues on appeal:
1. Did the District Court properly deny Hardaway's motion to suppress blood evidence swabbed from his hands without a warrant following his arrest?
2. Did the District Court err in denying Hardaway's motion to dismiss the amended information, and in allowing the jury to convict under an alternative instruction?
3. Did the District Court abuse its discretion by denying Hardaway's motion for a mistrial?
FACTUAL BACKGROUND
On January 22, 1999, Chris Dobitz (Dobitz) was awakened around 4:30 a.m. by the squeaking of her screen door and noises emanating from her attached garage. She got up from her bed and went to investigate these sounds. She found a man standing about two feet inside her kitchen doorway leading from the attached garage. She asked the man what he was doing, and he replied, "Sorry, wrong house." She took a step back and turned on the kitchen light. The man turned and ran back through the garage and out the garage door . Dobitz chased the intruder and saw items falling from his jacket. She stopped her pursuit to pick up the fallen items, which turned out to be pornographic magazines. Dobitz returned home and called the police.
Billings police officers immediately responded to her call. Officer Helderop began a search of the surrounding area, while Officer Philippi remained with Dobitz and investigated the scene. Officer Philippi observed that the screens to the basement windows had been removed, a window on the detached garage had been broken, and the door to the attached garage had been forced open with a knife and a steel rod. He also found blood on doorknobs, light switches, broken glass, and on other items in the garage, as well as on the screen door handle and front doorknob of the house.
While patrolling the area surrounding Dobitz's house, Officer Helderop spotted Hardaway walking quickly across a street. Hardaway fit the description given by Dobitz of the intruder. Officer Helderop stopped Hardaway and conducted a pat-down search for weapons. Hardaway was carrying a bottle of Yohimbe Erection Lotion in his waistband. Officer Philippi had advised Officer Helderop by radio that the intruder may have cut his hand breaking a garage window, so Officer Helderop had Hardaway remove his gloves. He found what appeared to be fresh blood and cuts on Hardaway's hands. Officer Helderop placed Hardaway under arrest.
During post-arrest processing at the Yellowstone County Detention Facility, Hardaway's hands were photographed and the blood on his hands was swabbed. The blood evidence was sent to the Montana State Crime Lab, where forensic scientists were able to match the blood swabbed from Hardaway's hands with the blood found at the scene. Hardaway was charged by information on January 27 with burglary.
On May 18, 1999, Hardaway filed a motion to suppress the blood evidence swabbed from his hands at the jail shortly after his arrest without a warrant or his permission. The District Court denied Hardaway's motion. It reasoned that under State v. Holzapfel (1988), 230 Mont. 105, 748 P.2d 953 (viewing defendant's hands under an ultraviolet light was not a search), the swabbing of Hardaway's hands was not a search.
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