Precedents and Authorities Cited

• M. R. Evid. 615: Mandates sequestration at a party’s request, with three exceptions: (1) natural person parties, (2) designated party representatives, and (3) persons whose presence is shown to be essential to the presentation of the party’s cause.
• Federal analogues to Rule 615(3):
  • United States v. Seschillie, 310 F.3d 1208 (9th Cir. 2002): No categorical expert exemption; if framers intended such, they would have said so.
  • Morvant v. Construction Aggregates Corp., 570 F.2d 626 (6th Cir. 1978): Little reason to sequester purely expert witnesses who do not testify to case facts, but exemption is not automatic.
  • Mayo v. Tri-Bell Industries, Inc., 787 F.2d 1007 (5th Cir. 1986) and Trans World Metals, Inc. v. Southwire Co., 769 F.2d 902 (2d Cir. 1985): Failure to exclude experts can be harmless where their opinions are not “colored” by other testimony or do not contradict prior expert opinions.
• Montana cases on evidentiary review and harmless error:
  • State v. Wilson, 2022 MT 11, ¶ 8: Evidentiary rulings reviewed for abuse of discretion; interpretation of evidence rules reviewed de novo.
  • State v. Ellison, 2018 MT 252, ¶ 8: Abuse of discretion where court acts arbitrarily or beyond reason causing substantial injustice.
  • State v. Van Kirk, 2001 MT 184: Non-constitutional harmless error standard—no reasonable possibility the inadmissible evidence contributed to the conviction.
  • State v. Brodniak, 221 Mont. 212 (1986): Harmlessness depends on the facts of the case.
  • State v. Garding, 2013 MT 355: Limiting expert’s testimony was harmless where critical aspects still reached the jury.
  • Faulconbridge v. State, 2006 MT 198: Federal interpretations of parallel rules persuasive in construing Montana rules.
• Vindictive sentencing and due process:
  • North Carolina v. Pearce, 395 U.S. 711 (1969): Due process prohibits vindictive increases after successful appeal; heightened sentence must rest on objective, identifiable post-sentencing conduct, reasons made on the record.
  • Wasman v. United States, 468 U.S. 559 (1984): Court may justify an increased sentence by affirmatively identifying relevant post-sentencing events.
  • Texas v. McCullough, 475 U.S. 134 (1986): Increased sentence justified where new, aggravating facts (new crimes) emerged between sentencings.
  • State v. Bullplume, 2011 MT 40, ¶ 18: Montana adopts Pearce; increased sentence must be based on post-sentencing conduct, with reasons on the record.
  • State v. Forsyth, 233 Mont. 389 (1988) and State v. Santoro, 2024 MT 136, ¶ 36 n.7: Pearce presumption generally applies when the same judge imposes the higher sentence, not when a new judge sentences.
  • State v. Hanna, 2014 MT 346, ¶ 38: Adding years to the suspended term increases the sentence; “suspended time is nonetheless sentenced time.”
  • State v. Jackson, 2007 MT 186, ¶ 14 and State v. Baldwin, 192 Mont. 521 (1981): Punishing a defendant for exercising constitutional rights (appeal, jury trial) violates due process.
  • State v. Cesnik, 2005 MT 257, ¶ 25: A court may not punish a defendant for failing to accept responsibility when the defendant maintains innocence and has the right to appeal.
  • State v. Knowles, 2010 MT 186, ¶ 35: Vindictiveness concerns when charges increased without new factual basis after mistrial; principle applied here by analogy to sentencing.
  • State v. Hubbel, 2001 MT 31, ¶¶ 28–29 (abrogated in part on other grounds): Increased sentence sustained where defendant failed to make rehabilitation progress—an example of valid post-sentencing conduct supporting increase.
• Remedial framework for partially illegal sentences:
  • State v. Hicks, 2006 MT 71, ¶ 44 and State v. Krum, 2007 MT 229, ¶ 23: Court may strike offending provisions or remand where necessary; chooses targeted relief where feasible.
  • State v. Heath, 2004 MT 58: Striking illegal condition is an available remedy.

Legal Reasoning

1) Rule 615 Sequestration and Expert Witnesses

Rule 615’s text requires courts to exclude witnesses upon request, subject only to three enumerated exceptions. The third exception (Rule 615(3)) exempts “a person whose presence is shown by a party to be essential to the presentation of the party’s cause.” The district court treated expert status as a categorical exemption. The Supreme Court rejected that view as contrary to the rule’s text and structure.

The Court drew on federal interpretations of the parallel federal rule. In particular, the Ninth Circuit’s Seschillie and the Sixth Circuit’s Morvant underscore that if the drafters intended a blanket expert exemption, they would have written one; absent that, expert presence must be justified under the “essential” showing of Rule 615(3). This reading also aligns with Montana’s interpretive principle not to “insert what has been omitted or to omit what has been inserted.”

Although it found error, the Court applied Montana’s harmless error standard: whether there is any reasonable possibility that the error “might have contributed to the conviction” (Van Kirk). Here, both experts were “blind experts” who did not testify to case-specific facts. The risk that sequestration is intended to mitigate—tailoring factual testimony based on what witnesses hear—has less application to experts opining in the abstract. The district court also took curative steps by allowing the defense expert, Dr. Zook, to remain during rebuttal and to rebut the State’s rebuttal, ensuring the jury weighed the competing expert theories and that the defense had the final expert word. In this context, the Court concluded the error did not reasonably contribute to the verdict.

Importantly, the Court expressly declined to decide whether Rule 615 applies differently to “rebuttal witnesses,” leaving that question open in Montana practice.

2) Vindictive Sentencing After Retrial

Due process, under Pearce and its Montana progeny, prohibits imposing a harsher sentence after a defendant prevails on appeal unless the sentencing court identifies objective, identifiable conduct occurring after the original sentencing that justifies the increase, and makes those reasons part of the record. The Pearce presumption applies when the same judge imposes the higher sentence—precisely the posture here.

The resentencing judge’s explanations cited: (a) Grimshaw’s decision to appeal and to proceed to retrial rather than accept a plea; (b) lack of remorse between trials; (c) the nature of the offense, impact on the victim, and community safety. The written judgment underscored reliance on Grimshaw’s pursuit of rights (“remanded on a technicality,” “decided to try this case again”).

The Court held these bases cannot overcome the presumption of vindictiveness:

• Appeal and retrial: Penalizing the exercise of constitutional rights is forbidden (Jackson; Baldwin). A resentencing court may not enhance punishment because a defendant appealed or declined a plea that would have spared a second trial.
• Lack of remorse while maintaining innocence pending appeal: Per Cesnik, a court may not punish a defendant for failing to accept responsibility where the defendant maintains innocence and has an active right to appeal; requiring remorse at that stage infringes the right against self-incrimination and renders the appeal meaningless.
• Community safety and victim impact: These can be legitimate considerations, but they must rest on new post-sentencing facts. Here, neither the egregiousness of the crime nor the victim’s impact materially changed between sentencings, and no new adverse information about Grimshaw’s behavior emerged. In fact, the updated PSE documented progress: participation in treatment programs, clean prison conduct, chemical dependency treatment completion, and maturation. Without objective post-sentencing conduct indicating increased risk or deterioration, generalized safety concerns cannot justify a harsher sentence (McCullough illustrates the kind of new facts that can justify an increase; they were absent here).

On this record, the presumption was not rebutted. The Court therefore reversed only the increased portion—ten additional years of suspended time—and directed amendment of the judgment to 40 years MSP with 20 years suspended, the original sentencing structure. Citing Hicks and Krum, the Court opted for targeted correction (striking the offending increase) rather than full resentencing, because the illegal portion was discrete and the Court could determine the proper sentence under correct principles.

Practical Impact and Forward-Looking Implications

A. Trial Management and Expert Practice under Rule 615

• No categorical expert exemption: Trial courts should no longer presume experts may sit in throughout proceedings. Parties who seek to exempt an expert must make a specific showing that the expert’s presence is “essential” to the presentation of their case—e.g., to assist counsel with real-time evaluation of opposing testimony or to facilitate the formulation of opinions dependent on hearing other experts.
• Tailored sequestration orders: Pretrial orders should specify which witnesses (including experts) are exempt under Rule 615(3), the reasons for exemption, and any limits (e.g., experts may be present only during topics relevant to their opinions). This record will support appellate review if issues arise.
• Remedies for violations: While this opinion found harmlessness given “blind” experts and symmetrical rebuttal opportunities, future violations may not be harmless—especially if experts stray into fact testimony or the opposing party is denied meaningful rebuttal. Courts should consider curative measures: limiting testimony scope, allowing reciprocal rebuttal, giving cautionary instructions, or, in serious cases, precluding rebuttal testimony derived from exposure.
• Open question on rebuttal witnesses: The Court did not decide whether Rule 615 operates differently for rebuttal witnesses. Counsel should assume it applies and seek explicit rulings pretrial to avoid mid-trial disputes.

B. Sentencing After Retrial and the Vindictiveness Doctrine

• Presumption triggered when the same judge increases the sentence: District courts must anticipate Pearce scrutiny if the sentence post-retrial is harsher in any meaningful respect, including longer suspended terms (Hanna).
• Required showing: Any increase must be justified by objective, identifiable post-sentencing conduct or events (e.g., prison misconduct, new criminal acts, failure to engage in treatment, deteriorated risk profile). The reasons must be articulated on the record and tied to the new facts.
• Prohibited rationales: Courts may not rely on the facts of the original crime (absent new information), the victim’s unchanged impact statement, a defendant’s exercise of appellate or trial rights, plea rejection, or a defendant’s lack of remorse while maintaining innocence and pursuing appeal (Cesnik).
• Written judgments matter: The Court scrutinized the written judgment’s language (“remanded on a technicality,” “decided to try this case again”), which crystallized the vindictive rationale. Judges should ensure written findings reflect constitutionally permissible reasons anchored in new, objective facts.
• Targeted appellate remedies: Where the infirmity is discrete (e.g., an added suspended term), the Supreme Court may direct a specific amendment without full resentencing, promoting efficiency and certainty.
• Prosecutorial practice: The State should avoid urging increased punishment based on a defendant’s appeal or plea decisions. Advocacy should focus on admissible, post-sentencing conduct bearing on risk, rehabilitation, and accountability.
• Defense practice: Defenders should build a robust post-sentencing record (treatment progress, clean conduct, community support) to both undercut any attempt to enhance and to position for relief if an increase is imposed without adequate new facts.