05/07/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA
No. DA 20-0025
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MARTIN ANDREW REINBOLT,
Defendant and Appellant.
BRIEF OF APPELLEE
On Appeal from the Montana Fourth Judicial District Court,
Missoula County, The Honorable Shane A. Vannatta, Presiding
APPEARANCES:
AUSTIN KNUDSEN
Montana Attorney General
BRAD FJELDHEIM
Assistant Attorney General
215 North Sanders
P.O. Box 201401
Helena, MT 59620-1401
Phone: 406-444-2026
brad.fjeldheim@mt.gov
KIRSTEN PABST
Missoula County Attorney
JAMES MCCUBBIN
Deputy County Attorney
200 West Broadway
Missoula, MT 59802
ATTORNEYS FOR PLAINTIFF
AND APPELLEE
CHAD WRIGHT
Appellate Defender
Moses Okeyo
Assistant Appellate Defender
Office of State Public Defender
Appellate Defender Division
P.O. Box 200147
Helena, MT 59620-0147
ATTORNEYS FOR DEFENDANT
AND APPELLANT
Case Number: DA 20-0025
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................. ii
STATEMENT OF THE ISSUE ............................................................................. 1
STATEMENT OF THE CASE .............................................................................. 1
STATEMENT OF THE FACTS............................................................................ 2
I.
The trial ........................................................................................................2
II.
The motion for new trial ...............................................................................8
SUMMARY OF THE ARGUMENT ..................................................................... 9
ARGUMENT........................................................................................................10
I.
Standard of review ......................................................................................10
II.
The district court correctly rejected Reinbolt’s argument that his due
process rights were violated when it denied his motion for new trial ..........11
CONCLUSION ....................................................................................................16
CERTIFICATE OF COMPLIANCE.....................................................................17
i
TABLE OF AUTHORITIES
Cases
Conde v. Henry,
198 F.3d 734 (9th Cir. 2000) .......................................................................... 14
Frost v. Van Boening,
757 F.3d 910 (9th Cir. 2014) .......................................................................... 13
Glebe v. Frost,
574 U.S. 21 (2014) ................................................................................... 13-14
Harwood v. Glacier Elec. Co-op., Inc.,
285 Mont. 481, 949 P.2d 651 (1997) .............................................................. 12
State v. Ariegwe,
2007 MT 204, 338 Mont. 442, 167 P.3d 815 ............................................ 10, 11
State v. Clark,
2008 MT 391, 347 Mont. 113, 197 P.3d 977 .................................................. 10
State v. Geren,
2012 MT 307, 367 Mont. 437, 291 P.3d 1144 .................................... 10, 14, 15
State v. Hardman,
2012 MT 70, 364 Mont. 361, 276 P.3d 839 .................................................... 14
State v. Insua,
2004 MT 14, 319 Mont. 254, 84 P.3d 11 .................................................. 12, 13
State v. Kingman,
2011 MT 269, 362 Mont. 330, 264 P.3d 1104 ................................................ 10
State v. Myran
2012 MT 252, 366 Mont. 532, 289 P.3d 118 .................................................. 13
State v. Parrish,
2010 MT 212, 357 Mont. 477, 241 P.3d 1041 ................................................ 10
ii
State v. Price,
2006 MT 79, 331 Mont. 502, 134 P.3d 45 ...................................................... 10
State v. Toner,
127 Mont. 283, 263 P.2d 971 (1953) ................................................... 12-13, 13
United States v. Miguel,
338 F.3d 995 (9th Cir. 2003) .......................................................................... 14
Other Authorities
Montana Code Annotated
§ 45-9-102(3) ................................................................................................... 1
§ 45-10-103 ..................................................................................................... 1
§ 46-16-702(1) ......................................................................................... 11, 14
§ 46-20-701(1) ............................................................................................... 10
Montana Rules of Evidence
Rule 613 ........................................................................................................ 12
iii
STATEMENT OF THE ISSUE
Did the district court correctly exercise its discretion in denying the
Appellant’s motion for new trial by affirming its ruling that the Appellant could
not argue in closing that the police report, which was not introduced in evidence,
was inconsistent with the officer’s testimony?
STATEMENT OF THE CASE
On August 31, 2018, the State charged the Appellant, Martin Reinbolt
(Reinbolt), with felony criminal possession of dangerous drugs, in violation of
Mont. Code Ann. § 45-9-102(3), and misdemeanor criminal possession of drug
paraphernalia, in violation of Mont. Code Ann. § 45-10-103. (D.C. Docs. (Docs.)
1-2, 6.) On June 4, 2019, the district court granted the State’s motion to dismiss the
paraphernalia charge. (Docs. 41, 43.)
On July 22, 2019, a jury convicted Reinbolt of felony drug possession. (Doc.
58.) On August 19, 2019, Reinbolt filed a motion for new trial. (Doc. 63.) Reinbolt
argued the district court denied him a fair trial by prohibiting argument in closing
about prior statements from a testifying officer’s report. (Id.) The district court
denied the motion, reasoning Reinbolt was only prohibited from arguing about the
contents of the police report, which was not entered into evidence, not from
otherwise “arguing about the credibility, probability, completeness, etc. of [the
officer]’s testimony.” (Doc. 69 at 8-9.) On appeal, Reinbolt argues this violated his
right to present a complete defense. (Appellant’s Brief (Br.) at 1-20.)
STATEMENT OF THE FACTS
I.
The trial
Just before midnight on August 16, 2018, Sergeant Robert Campbell
(Sergeant Campbell) responded to a call to assist another officer in a traffic stop on
Reserve Street in Missoula. (7/22/19 Trial Tr. (Trial Tr.) at 28-29, 31-32.) When
Sergeant Campbell arrived, Reinbolt had been removed from the vehicle and was
seated outside of it. (Id. at 33.) After the officers were able to identify Reinbolt, he
was arrested on outstanding warrants. (Id.) An officer placed Reinbolt in handcuffs
and escorted him to the patrol car. (Id. at 34.) Sergeant Campbell followed and
observed. (Id.) Sergeant Campbell testified:
And as he was escorting him back to the patrol vehicle, for
officer safety purposes I went along, uhm, behind Officer Smith
watching him, watching the defendant, and I was walking directly
behind the defendant, uhm, when I noticed, uhm, the defendant
maneuvering his hands in such a way behind his back that it drew
attention to me right away. They weren’t just there, he was
maneuvering or manipulating something in his fingers and it drew my
attention down to that area there.
And, at this point, while still being walked back to Officer
Smith’s patrol vehicle, I observed an object drop from the area of his
hands down to the ground.
Q. Is there any doubt that you saw the defendant drop something?
2
A. No doubt.
Q. Was this incident recorded?
A. It was.
(Id.)
The State played dash cam videos for the jury, which showed the arrest. (Id.
at 34-45.) Sergeant Campbell described his actions in the second video. (Id. at
36-37.)
A. So, what we observed was the defendant being walked back by—
escorted by Officer Smith and I was following directly behind. And
just as we came up to that nearest patrol vehicle here, you observed
me stop, look down. I had, in fact, been looking at his hands, because
I noticed that manipulation that I was talking about.
And it was at that time that I saw what appeared to me to be a
small baggie of some sort, or cellophane wrapper drop from the area
of his hands to the ground. I stopped and observed it, and made
mention of that both to the defendant and my partner of that
observation.
Q. And, again, is there any doubt that you saw something fall?
A. No doubt. (Shakes head negatively)
(Id.)
Q. Okay. How can you tell on the video when you saw the item fall?
///
3
A. Uhm, just as I said, I was observing his hands, I observed the item
drop, and you could see, as shown on the video there, I’m lighting up
my flashlight and I’m remarking to my partner about what I had just
observed.
(Id. at 37-38.)
Q. So, what’s happening at this point?
A. So, I am illuminating what I observed fall, and I’m making known
of it to my partner, as well as the defendant, as to what my
observations were, just that I had observed him drop something from
the small of his back onto the ground. And I made note of it to my
partner, that was to Officer Smith that had him detained.
(Id. at 38.)
Sergeant Campbell found a cellophane wrapper with paper bindles inside.
(Id. at 37, 44-46, 49.) The object was near the curb and the front of the patrol car.
(Id. at 46-47.) Sergeant Campbell believed the substance in the bindles to be
methamphetamine, which weighed .4 grams. (Id. at 54-56.) The substance was
confirmed to be methamphetamine by the Montana State Crime Lab. (Id. at
100-01.)
During the cross examination of Sergeant Campbell, Reinbolt’s counsel
asked him about his report. (Id. at 65-67.)
You wrote a report in this case, right?
A. I did.
Q. And you know the State relies on that for their prosecution?
A. Yes.
4
Q. And that the defense relies on that to prepare a defense?
A. Yes.
Q. Uhm, and you were trained at the police academy how to write
reports?
A. I was.
Q. And were you trained to include the most important details?
A. Yes.
Q. Uhm, I had heard that at the academy they say if it’s not in your
report, it didn’t happen, is that what they teach you?
A. At that time, yes. Of course, with the advent of technology, we’ve
become more reliant on video and bodycams and so forth. So, I would
say that’s not entirely true today, but . . .
Q. Okay. And you often rely on your report to testify; is that true?
A. I’m sorry?
Q. Do you often rely on your report when you testify?
A. Yes.
Q. Part of the reason being that this was about a year ago, or 11
months; is that right?
A. Correct.
Q. And you may have had many similar incidents since then?
A. Correct. Yep.
(Id.)
5
Later, during cross examination, Reinbolt’s attorney revisited the report with
the following exchange:
Q. And, in your report, uh, you wrote down that you observed Martin
discard something from—“I observed him discard something from
either his hands or from his waistband near where his hands were
cuffed behind his back.” Is that right?
A. Correct.
Q. And, earlier, you had testified that you—he—you saw him
manually maneuver something?
A. So, as he was being walked back, it looked like he was doing—
another thing that raises real suspicion is when their—if their hands
are just sitting there, that’s one thing, but if they start—
THE WITNESS: If I may demonstrate, Your Honor?
THE COURT: You may.
THE WITNESS: You know, if they start, you know, like this
(indicating), or like this (indicating), or, you know, anything
besides—or it’s like this or this (indicating), depending on how they
are cuffed. It’s just something that gets our attention. It may be they
have an itch back there, it may be they are trying to do something with
something back there, but it’s just one of those things that, through my
experience, gets my attention, when they are doing something other
than just relaxing their hands back there.
BY MR. WILSON:
Q. (Nods head affirmatively) Okay. So, but in your report, you made
no mention of him maneuvering his hands in that nature. Do you
recall?
A. So, the report doesn’t mention the—if I recall in my report, it
mentioned that I saw something or observed it from the area of his
hands and his waistband. I don’t know if it was from his hands or
from his waistband, but . . .
6
Q. Okay. Uhm, well, so you agree that up to that point, when he was
being handcuffed, apparently nothing was in his hands, right?
A. Nothing. As he was being handcuffed there was nothing in his
hands.
Q. So—and that was right before this happened, right?
A. Seconds before, correct.
Q. And you would agree, shirt hanging down, arms held by an officer,
that would be fairly difficult to get under that shirt and to his
waistband, wouldn’t it?
A. Difficult, but not impossible.
Q. Okay. But you didn’t see him pull it from the waistband.
A. No.
Q. Okay. And you didn’t actually see anything in his hands that was
dropped.
A. No.
(Id. at 76-78.) The police report was not admitted into evidence. (Id. at 28-87.)
During closing, Reinbolt made the following argument:
Uh, early in my questioning I asked if he had relied on his report to
testify today, and he said he did, because these things, you know,
happen a lot. (Shakes head negatively) And he deviated from that
report on essentially his most significant point when he said that
Martin was—
MR. MCCUBBIN: Your Honor, I object. There is no report in
evidence. There is no—we have no evidence that he deviated from his
report. And, in fact, I would submit that he did not.
THE COURT: Your objection is sustained.
7
MR. WILSON: Judge, did I not ask him about his report?
THE COURT: Mr. Wilson, you need to move on.
(Id. at 125.)
The jury found Reinbolt guilty. (Id. at 132-33; Doc. 58.) The district court
later sentenced Reinbolt to a five-year commitment to the Department of
Corrections, with two years suspended, and recommended treatment placement.
(Doc. 71.)
II.
The motion for new trial
On August 19, 2019, Reinbolt filed a motion for a new trial. (Doc. 63.)
Reinbolt argued the district court “denied him a fair trial when it granted the
State’s objection during Reinbolt’s closing argument.” (Id. at 2.) Reinbolt said
Sergeant Campbell in his testimony implicitly acknowledged inconsistencies
between his report and his testimony that Reinbolt was not allowed to argue to the
jury. (Id. at 3.)
The district court denied Reinbolt’s motion. (Doc. 69.) The district court
found the record did not support a finding that Sergeant Campbell had admitted his
report was inconsistent with his testimony, and it could not “ascertain whether the
report contradicts Officer Campbell’s testimony, because it was not even offered
for admission into evidence.” (Id. at 7-8.) The district court explained:
8
Reinbolt was not prohibited from commenting on Officer Campbell’s
testimony. The scope of the State’s objection was limited to arguing
that the report was not in evidence and therefore there was no
evidence that Officer Campbell “deviated from his report”. The Court
sustained the objection and asked Reinbolt’s counsel to “move on”.
The Court did not otherwise prohibit Reinbolt’s counsel from arguing
about the credibility, probability, completeness, etc. of Officer
Campbell’s testimony. The State’s objection and the Court’s response
was limited to Reinbolt’s counsel arguing about deviations from
Officer Campbell’s report.
(Id. at 8-9.)
SUMMARY OF THE ARGUMENT
The district court correctly ruled Reinbolt could not argue in closing that
Sergeant Campbell’s testimony was inconsistent with his police report because the
report was not introduced as evidence. This did not violate Reinbolt’s right to
present a complete defense. Reinbolt raised this same challenge in a motion for
new trial, which was denied. Reinbolt asks this Court to review his constitutional
claim de novo, but the correct standard of review is abuse of discretion based on
the district court’s denial of his motion for new trial. However, under either
standard, Reinbolt’s conviction should be affirmed.
Sergeant Campbell consistently testified he saw Reinbolt drop an item that
was later identified as methamphetamine. The physical and video evidence support
that testimony. Sergeant Campbell did not acknowledge any inconsistency between
his testimony and his report, so Reinbolt was not entitled to argue the
9
inconsistency during closing. The district court correctly ruled on this during
closing and correctly exercised its discretion to deny Reinbolt’s motion for a new
trial. Reinbolt’s conviction should be affirmed.
ARGUMENT
I.
Standard of review
“This Court reviews a district court’s grant or denial of a motion for a new
trial for an abuse of discretion.” State v. Geren, 2012 MT 307, ¶ 23, 367 Mont.
437, 291 P.3d 1144 (citing State v. Parrish, 2010 MT 212, ¶ 14, 357 Mont. 477,
241 P.3d 1041; State v. Clark, 2008 MT 391, ¶ 20, 347 Mont. 113, 197 P.3d 977).
“In order to establish that the court abused its discretion, a defendant must
demonstrate that the court acted arbitrarily without conscientious judgment or
exceeded the bounds of reason and, further, that the court’s abuse of discretion was
prejudicial.” Geren, ¶ 23 (citing State v. Ariegwe, 2007 MT 204, ¶ 164, 338 Mont.
442, 167 P.3d 815; State v. Price, 2006 MT 79, ¶ 17, 331 Mont. 502, 134 P.3d 45;
Mont. Code Ann. § 46-20-701(1)).
“The question of whether a defendant ultimately received a fair trial in
accordance with due process is a question over which this Court exercises plenary
review.” Geren, ¶ 28 (citing State v. Kingman, 2011 MT 269, ¶ 38, 362 Mont. 330,
264 P.3d 1104).
10
II.
The district court correctly rejected Reinbolt’s argument that his
due process rights were violated when it denied his motion for
new trial.
Reinbolt asks this Court to exercise plenary review of his claim that the
district court violated his right to present a complete defense. (Br. at 8-9.) This is
the same challenge he raised in his motion for new trial below, yet he ignores the
abuse of discretion standard that applies to a district court’s denial of a motion for
new trial. See Ariegwe, ¶ 164. The abuse of discretion standard is appropriate in
this case. Id. However, the State addresses both standards and, under either,
Reinbolt is not entitled to relief.
Montana law provides that, after a verdict or finding of guilt, a court may
grant a defendant a new trial if “required in the interest of justice.” Mont. Code
Ann. § 46-16-702(1). The district court, here, correctly identified in its order
denying Reinbolt’s motion for new trial that the crux of Reinbolt’s argument was
Sergeant Campbell’s testimony that he saw Reinbolt manipulating his hands before
he saw him drop the drugs on the ground. (Doc. 69 at 7.) Reinbolt argued below
and now argues on appeal that Sergeant Campbell acknowledged this was
inconsistent with his report during cross examination. This is not supported by the
record.
As the district court explained:
Campbell didn’t specifically acknowledge or agree that any specific
item of information was, or was not, in his report. Officer Campbell
11
started his response with one unfinished thought: “So, the report
doesn’t mention the—”, and then completes his response with the
complete thought: “[i]f I recall in my report, it mentioned that I saw
something or observed it from the area of his hands and his waistband.
I don’t know if it was from his hands or from his waist band, but . . .”.
Transcript at 53:10-23. Officer Campbell’s response is not an
admission that his report was lacking in specificity or otherwise.
Certainly the Court cannot ascertain whether the report contradicts
Officer Campbell’s testimony, because it was not even offered for
admission into evidence.
(Doc. 69 at 7-8.) Reinbolt is correct that a witness may be impeached on cross
examination with prior inconsistent statements under Mont. R. Evid. 613. (Br. at
19.) However, the existence of an evidence rule does not itself put evidence on the
record. Reinbolt did not introduce Sergeant Campbell’s report under this rule.
Reinbolt’s questioning was limited to one excerpt he quoted from the report, and
Sergeant Campbell did not acknowledge the excerpt was inconsistent with his
testimony.
The district court correctly sustained the State’s objection to Reinbolt’s
argument in closing that Sergeant Campbell “deviated from that report on
essentially his most significant point.” (7/22/19 Tr. at 125.) “[A] party may not in
his or her closing argument discuss or introduce facts not previously proven.” State
v. Insua, 2004 MT 14, ¶ 30, 319 Mont. 254, 84 P.3d 11 (quoting Harwood v.
Glacier Elec. Co-op., Inc., 285 Mont. 481, 492, 949 P.2d 651, 658 (1997)). As the
district court noted in its order, “[a] statement by counsel in argument of facts not
in evidence or a misstatement of the evidence is generally regarded as reversible
12
error.” (Doc. 69 at 8 (citing State v. Toner, 127 Mont. 283, 287, 263 P.2d 971, 974
(1953).) “This is true both in civil and criminal cases, especially if the statement of
facts not in evidence is wilful.” (Id.)
This Court has “previously recognized that the right to present a defense is
not absolute under the Montana Constitution . . . and this proposition has been
firmly rejected by the U.S. Supreme Court.” State v. Myran, 2012 MT 252, ¶ 26,
366 Mont. 532, 289 P.3d 118 (citations omitted). Reinbolt’s right to present a
complete defense does not extend to arguing defense theories in closing based on
allegations that were not presented as evidence during the preceding trial. See
Toner, 127 Mont. at 287, 263 P.2d at 974; Insua, ¶ 30.
Reinbolt relies on Frost v. Van Boening, 757 F.3d 910, 916 (9th Cir. 2014),
to argue “[p]reventing a defendant from arguing a legitimate defense theory
constitutes structural error.” (Br. at 11-12.) Reinbolt fails to meet this standard
because a defense theory based on facts that are not in the record is not a legitimate
defense theory. See Toner, 127 Mont. at 287, 263 P.2d at 974; Insua, ¶ 30. Further,
the general statement in Frost, 757 F.3d 910 (a 9th Cir. federal habeas case), as
cited by Reinbolt, was rejected by the U.S. Supreme Court when it reversed that
case and made clear that there is no clearly established Supreme Court decision
that stands for the proposition that a restriction on closing argument is structural
error that requires automatic reversal. Glebe v. Frost, 574 U.S. 21, 21-25 (2014)
13
(per curiam) (also rejecting the circuit court’s reliance on United States v. Miguel,
338 F.3d 995 (9th Cir. 2003), and Conde v. Henry, 198 F.3d 734 (9th Cir. 2000)).
Reinbolt’s argument is further undermined by the district court’s limited
ruling. The district court only prohibited Reinbolt from arguing about the police
report, which was not in the record. As the district court explained in its order
denying Reinbolt’s motion for a new trial:
Reinbolt was not prohibited from commenting on Officer Campbell’s
testimony. The scope of the State’s objection was limited to arguing
that the report was not in evidence and therefore there was no
evidence that Officer Campbell “deviated from his report”. The Court
sustained the objection and asked Reinbolt’s counsel to “move on”.
The Court did not otherwise prohibit Reinbolt’s counsel from arguing
about the credibility, probability, completeness, etc. of Officer
Campbell’s testimony. The State’s objection and the Court’s response
was limited to Reinbolt’s counsel arguing about deviations from
Officer Campbell’s report.
(Doc. 69 at 8-9.) “The court has a duty to conduct the trial in a speedy and fair
manner and has a great amount of discretion in so doing.” State v. Hardman, 2012
MT 70, ¶ 26, 364 Mont. 361, 276 P.3d 839. Reinbolt fails to show the district
court’s ruling violated its duty or otherwise infringed on his due process rights.
For the same reasons, Reinbolt has failed to show the district court’s order
denying his motion for a new trial was made arbitrarily, without conscientious
judgment, or exceeded the bounds of reason. See Geren, ¶ 23. The interests of
justice did not require a new trial, because the district court’s ruling was correct.
See Mont. Code Ann. § 46-16-702(1). Even if this Court finds the district court
14
abused its discretion, Reinbolt must still prove it was prejudicial. See Geren, ¶ 23.
It was not. Sergeant Campbell’s testimony was supported by the physical and
video evidence. The video shows Sergeant Campbell watch Reinbolt’s hands as
Reinbolt is escorted to the patrol car, look to the ground when Reinbolt discarded
the drugs, and notify his partner of the observation. The photographs show the
discarded drugs in the location that Sergeant Campbell looked in the video, and the
contents tested positive for methamphetamine.
The element the State needed to prove was that Reinbolt possessed the
drugs, and Sergeant Campbell consistently and repeatedly testified that he saw
Reinbolt drop the drugs from his hands. Apparently, this was also included in his
police report. Reinbolt’s defense, which he made to the jury in closing, was that the
drugs could have blown into the location rather than being dropped from
Reinbolt’s hands. Whether Reinbolt was manipulating his hands was
inconsequential to whether he possessed the drugs given Sergeant Campbell’s
testimony and the physical and video evidence. The alleged absence of this detail
from the police report, which cannot be verified by the record, does nothing to
undermine the jury’s rejection of Reinbolt’s wind defense.
Reinbolt’s conviction should be affirmed.
15
CONCLUSION
The State respectfully requests this Court affirm Reinbolt’s conviction.
Respectfully submitted this 7th day of May, 2021.
AUSTIN KNUDSEN
Montana Attorney General
215 North Sanders
P.O. Box 201401
Helena, MT 59620-1401
By:
16
/s/ Brad Fjeldheim
BRAD FJELDHEIM
Assistant Attorney General
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 11 of the Montana Rules of Appellate Procedure, I certify
that this principal brief is printed with a proportionately spaced Times New Roman
text typeface of 14 points; is double-spaced except for footnotes and for quoted and
indented material; and the word count calculated by Microsoft Word for Windows
is 3,555 words, excluding cover page, table of contents, table of authorities,
certificate of service, certificate of compliance, and any appendices.
/s/ Brad Fjeldheim
BRAD FJELDHEIM
17
CERTIFICATE OF SERVICE
I, Brad Fjeldheim, hereby certify that I have served true and accurate copies of the foregoing
Brief - Appellee's Response to the following on 05-07-2021:
Kirsten H. Pabst (Govt Attorney)
200 W. Broadway
Missoula MT 59802
Representing: State of Montana
Service Method: eService
Moses Ouma Okeyo (Attorney)
610 Woody St
Missoula MT 59802
Representing: Martin Andrew Reinbolt
Service Method: eService
Electronically signed by Janet Sanderson on behalf of Brad Fjeldheim
Dated: 05-07-2021