Order
HAROLD BAKER, District Judge
The plaintiff, a resident of Rushville Treatment and Detention Center, pursues constitutional claims that excessive force was used in the application of handcuffs to him, and that the defendants were deliberately indifferent to his injuries by delaying an MRI and nerve conduction study. Before the Court are the defendants' respective motions for summary judgment. For the reasons below, summary judgment will be granted to all the defendants except for Rose.
Standard
Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Any discrepancies in the factual record should be evaluated in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ( citing Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970)). The party moving for summary judgment must show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party opposing summary judgment bears the burden to respond, not simply by resting on its own pleading but by "set[ting] out specific facts showing a genuine issue for trial." See Fed.R.Civ.P. 56(e). In determining whether factual issues exist, the court must view all the evidence in the light most favorable to the non-moving party. Beraha v. Baxter Health Corp., 956 F.2d 1436, 1440 (7th Cir. 1992).
Undisputed Facts
These facts are set forth in the light most favorable to the plaintiff, for purposes of this order only.
The plaintiff is detained in Rushville Treatment and Detention Center pursuant to the Illinois Sexually Violent Persons Act. On April 17, 2008, the plaintiff was taken on a writ with three other residents for court appearances in Kane County, about a 4 1/2 hour drive. Defendant Vaniter, a security officer, applied handcuffs to the plaintiff. Sergeant Durant, who is not a defendant, oversaw the application of handcuffs to the plaintiff and determined that the handcuffs were too loose. According to the complaint, a few days prior another resident had been able to escape handcuffs applied by Durant, which made Durant particularly sensitive to the issue. Durant personally tightened the handcuffs on all three residents, remarking, "I'll be damned if I'm ever accused again of handcuffs being too loose." The residents protested, but Durant informed everyone present that she had the support of the administration and no one would care about their complaints.
The residents were boarded into the transport van, accompanied by security guards Rose, Vaniter and Teel. Defendant Rose was in charge. The residents continued to complain about the cuffs, but Rose responded that Sergeant Durant had already checked them and that they would not be loosened. The plaintiff informed Rose, Vaniter and Teel that he had had surgery on his wrist before and that the cuffs were causing him extreme pain, but the defendants still did nothing. The prior surgery had been to remove a ganglion cyst from the plaintiff's right wrist.
At the courthouse, Defendant Rose escorted the plaintiff to his hearing, while Vaniter and Teel escorted the other residents. Rose continued to refuse to adjust the cuffs or even look at the plaintiff's wrists, which had become significantly swollen. The plaintiff maintains that Rose did agree to loosen the cuffs of the other two residents, but still refused to loosen the plaintiff's. (Plaintiff's Dep. p. 44).
On the trip back, Defendant Rose continued to refuse to adjust the cuffs. When the group returned to Rushville, Defendant Vaniter saw the plaintiff's swollen and discolored hands and gasped, "Oh my God!" (Complaint ¶ 29). Removing the cuffs at that point was difficult because they were imbedded in Plaintiff's flesh. Vaniter allegedly apologized and remarked several times, "This isn't right." (Complaint ¶ 30).
About 60 days later, the plaintiff developed a large, painful knot on his right wrist and sought health care for it. (Plaintiff's Dep. p. 20). On August 19, 2008, Defendant Dr. Lochard saw the plaintiff for complaints of pain to his right wrist. Dr. Lochard diagnosed a return of the plaintiff's ganglion cyst, prescribed motrin and wrote a referral to an orthopod. Dr. Lochard saw the plaintiff again on August 28, 2008, for his cyst. The plaintiff reported that the cyst was painful and he requested medical restraints on his next writ. Dr. Lochard prescribed Ultram and spoke to security about using soft medical restraints. The notes also say referral to an orthopod.
On October 7, 2008, the plaintiff went to the Quincy Medical Group for a consultation with Dr. Morton. Dr. Morton recommended an MRI and EMG/NCV of the wrist (nerve conduction study), and wrist splints. Dr. Lochard signed off on the recommendations and checked the box to see the patient, which should have caused an employee in the healthcare unit to make an appointment for the plaintiff with Dr. Lochard. This, however, was not done until February 2009, for reasons unknown.
On February 12, 2009, Dr. Lochard saw the plaintiff for his right wrist. Dr. Lochard recommended an MRI and EMG/NCS of the wrist. An MRI was done on March 18, 2009, and the plaintiff was diagnosed with carpal tunnel syndrome. An EMG/NCS was done on March 23, 2009, which "reflected severe right denervating right carpal tunnel syndrome for which Dr. Mehra recommended surgery." (d/e 35 ¶ 35). Dr. Lochard referred the plaintiff for surgery on April 27, 2009. The plaintiff had surgery in July, 2009, and has had no problems since. (Plaintiff's Dep. pp. 24, 35).
Analysis
The plaintiff's handcuff claim is essentially an excessive force claim that falls under the due process clause of the Fourteenth Amendment. This standard is not wholly objective, but the Fourth Amendment's objective standard is generally the place to start and can often serve to answer both the subjective and objective inquiry. Titran v. Ackman, 893 F.2d 145, 147 (7th Cir. 1990) ("[m]ost of the time the propriety of using force on a person awaiting trial will track the Fourth Amendment: the court must ask whether the officials behaved in a reasonable way in light of the facts and circumstances confronting them."); Wilson v. Williams, 83 F.3d 870 (7th Cir. 1996) (fourth amendment objective factors were relevant to determining intent to punish pretrial detainee; force must be "objectively unreasonable in light of the facts and circumstances of the time,"). The court must keep in mind, however, that "the due process clause does not proscribe negligence or even gross negligence, . . . . [so] "the search for `punishment' cannot be wholly objective." Id. (internal citations and quoted cites omitted).
The plaintiff avers that he was in obvious pain and that he pleaded with Defendant Rose to loosen the cuffs over a period of about 12 hours, but that Rose refused and would not even look at the plaintiff's hands, which the plaintiff maintains were visibly swollen. According to the plaintiff, Rose did agree to loosen the other residents' cuffs, which creates an inference that Rose had that discretion. In the court's opinion, these circumstances, viewed in the light most favorable to the plaintiff, give rise to a reasonable inference that Rose's refusal to loosen the cuffs was objectively unreasonable and amounted to excessive force.
None of the other defendants, however, can be held liable for Rose's alleged misconduct. An individual is liable under § 1983 only if he or she was "`personally responsible for the deprivation of a constitutional right.'" Sanville v. McCaughtry, 266 F.3d 724, 739 (7th Cir. 2001), citing Chavez v. Illinois State Police, 251 F.3d 612, 652 (7th Cir. 2001); Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). Personal responsibility means participating directly in the constitutional violation or directing the unconstitutional conduct.
Defendants Vaniter and Teel were present during the transport, heard the plaintiff's pleas, and presumably saw his swollen hands. However, they did not have the authority to loosen the cuffs. By the plaintiff's own admission, Rose was in charge of the writ. (Complaint ¶ 32) ("[a]lthough Defendants Vaniter and Teel were both Very simpathetic [sic] to my please for help during and after this writ, neither acted or did anything to assist me due to the fact Rose was the S.T.A. in charge of this writ."). Vaniter did ask Rose to look at the plaintiff's hands during the transport, but the plaintiff contends that Vaniter and Teel should have done more, such as phoning a DHS administrator to seek permission to override Rose's decision and loosen the cuffs. (Plaintiff's Dep. p. 43). There are circumstances where the failure to intervene is actionable, such as when one guard stands and watches another guard beat an inmate, but the court does not believe that this is one of them. Sergeant Durant, higher in rank to Vaniter and Teel, had personally tightened the handcuffs before the transport, and Rose was in charge of the writ during the transport. Thus, the two officers in control had already determined that the cuffs were properly fit. Vaniter and Teal had no realistic opportunity to override Rose's decision, in light of the hierarchy of command. See Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000).
None of the other defendants were present during the transport or could be said to bear personal responsibility for the tight cuffs. "The doctrine of respondeat superior can not be used to hold a supervisor liable for conduct of a subordinate that violates a plaintiff's constitutional rights." Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001), citing Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). There is no evidence that the conduct occurred with these defendants' knowledge and consent, or that they condoned such conduct. There is no evidence of they even knew about it until after the fact. See Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988) (citations omitted).
The handcuff claim therefore survives for trial, but only as to Defendant Rose.
As for the claim against Defendant Lochard, the plaintiff does not have any evidence that would allow a rational juror to find that Dr. Lochard violated the plaintiff's constitutional rights by the alleged delay in obtaining the MRI or nerve conduction study.
Fourteenth Amendment protections are "`at least as great as the protections available to a convicted prisoner under the Eight Amendment.'" Tesch v. County of Green Lake, 157 F.3d 465, 473-73 (7th Cir. 1998), quoting City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983). However, the Seventh Circuit has also stated that "`there is little practical difference between the two standards. Mayoral v. Sheahan, 245 F.3d 934, 938 (7th Cir. 2001), citing Weiss v. Cooley, 230 F.2d 1027 (7th Cir. 2000); Grieveson v. Anderson, 538 F.3d 763, 771 (7th Cir. 2008) ("Either way, the inquiry under both provisions of the Constitution is essentially the same."). Accordingly, to get to trial the plaintiff must have evidence that Dr. Lochard was deliberately indifferent to his serious medical needs. Grieveson, 538 F.3d at 779.
Delay in treating a painful condition that significantly restricts daily activities can violate the Constitution. Williams v. Liefer, 491 F.3d 710, 715 (7th Cir. 2007); Gutierrez v. Peters, 111 F.3d 1364, 1371 (7th Cir. 1997). Here, scheduling the MRI sooner might have resulted in having the surgery a few months earlier and thus saving the plaintiff those months of pain.
However, there is no evidence that the delay was intentional or caused by deliberate indifference. Deliberate indifference is more than negligence or gross negligence — it "`approaches intentional wrongdoing,'" `essentially a criminal recklessness standard, that is, ignoring a known risk.'" Johnson v. Snyder, 444 F.3d 579, 585 (7th Cir. 2006). The plaintiff asserts that Dr. Lochard intentionally lied about having scheduled the MRI, but there is no evidence of that in the record other than the plaintiff's speculation. Dr. Lochard had already sent the plaintiff for a consult, agreed with the recommendations, and checked the box to schedule an appointment with the plaintiff. That scheduling fell through the cracks for some reason, but that is not evidence of deliberate indifference. At most, it is evidence of negligence, which does not violate the Constitution. The plaintiff could have alerted the health care staff of this oversight by filing a health care request for the MRI, but the court does not see one in the record. The health care requests in the record relate to other problems or the recommended surgery after the plaintiff had his MRI. See d/e 40, Exhibits attached. There is no evidence of intentional stalling on anyone's part. To the contrary, the record shows that Dr. Lochard was conscientious in getting the plaintiff to an outside consult, and that he agreed to and did follow all of those outside recommendations. Because there is no evidence that Dr. Lochard was deliberately indifferent, summary judgment is mandated for him on the medical claim, as well as for the other defendants.
IT IS THEREFORE ORDERED:
1) The motion for summary judgment by Dr. Lochard is granted (d/e 35). At the close of the case, the clerk is directed to enter judgment in favor of Dr. Lochard and against the plaintiff.
2) The motion for summary judgment by the DHS defendants is granted in part and denied in part (d/e 32). Summary judgment is granted to Defendants Adams, Bednarz, McAdory, Phillips, Teel, and Vaniter. At the close of the case, the clerk is directed to enter judgment in favor of the aforesaid defendants and against the plaintiff. Summary judgment is denied to Defendant Rose on the plaintiff's claim that Rose's failure to loosen the handcuffs violated the plaintiff's constitutional rights.
3) A final pretrial conference is scheduled for March 11, 2011 at 9:30 a.m. by video conference. The parties are directed to submit the proposed final pretrial order five working days before the final pretrial conference. The defendants are reminded that they bear the responsibility for preparing the proposed final pretrial order pursuant to Local Rule 16.3-4(H).
4) The proposed final pretrial order must include the names of all witnesses to be called. Residents of Rushville (other than the plaintiff) who will be witnesses shall appear by video conference. Employees of Rushville (other than the defendant) may appear by video conference. The parties are responsible for timely requesting subpoenas for nonparty witnesses who are not employees or residents of Rushville. The parties are responsible for serving the subpoena and providing applicable witness and mileage fee.
4) A jury trial is scheduled for April 4, 2011, at 9:00 a.m. at the U.S. Courthouse, 201 S. Vine St., Urbana, IL. The plaintiff and the defendants shall appear in person before the court sitting in Urbana. The Clerk is directed to issue appropriate process for the personal appearance of the plaintiff at the trial and the video appearance of the video witnesses.
Goodwin court noted that since even the "fear of vindictiveness" may unconstitutionally deter a defendant from exercising a right to appeal or otherwise attack his conviction, due process requires that a "defendant be freed of apprehension of such retaliatory motivation on the part of the sentencing judge."
Goodwin, 457 U.S. at 373-74,
102 S. Ct. at 2489 (quotation omitted). In order to assure the absence of such vindictiveness, the court held that,
"[Whenever] a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal."
Goodwin, 457 U.S. at 374, 102 S. Ct. at 2489 (quoting
Pearce, 395 U.S. at 726, 89 S. Ct. at 2081) (alteration in original).
¶ 30 The Court then discussed the case of Blackledge as illustrative of this principle. In that case a defendant in North Carolina was convicted of misdemeanor assault with a weapon and given a six-month sentence. After his conviction, he appealed for a de novo trial in North Carolina's Superior Court. The prosecutor then indicted him for felony assault with a deadly weapon with intent to kill. Blackledge, 417 U.S. at 23, 94 S. Ct. at 2100. The United States Supreme Court held that it was not constitutionally permissible for the state to bring the increased charge against the defendant for exercising his statutory right to appeal his conviction for a de novo trial. Blackledge, 417 U.S. at 28-29, 94 S. Ct. at 2103. The Supreme Court held that "[a] person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration." Blackledge, 417 U.S. at 28, 94 S. Ct. at 2102-03. The Blackledge court stated as follows:
A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a trial
de novo in the Superior Court, since such an appeal will clearly require increased expenditures of prosecutorial resources before the defendant's conviction becomes final, and may even result in a formerly convicted defendant's going free. And, if the prosecutor has the means readily at hand to discourage such appeals-by `upping the ante' through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedy-the State can insure that only the most hardy defendants will brave the hazards of a
de novo trial.
Blackledge, 417 U.S. at 27-28, 94 S. Ct. at 2102.
¶ 31 In summarizing the Blackledge case, the Goodwin court noted that "in Blackledge . . . it did not matter that no evidence was present that the prosecutor had acted in bad faith or with malice in seeking the felony indictment. As in Pearce, the Court held that the likelihood of vindictiveness justified a presumption that would free defendants of apprehension of such a retaliatory motivation on the part of the prosecutor." Goodwin, 457 U.S. at 376, 102 S. Ct. at 2490 (footnote omitted).
¶ 32 However, in the Goodwin case itself, the Supreme Court found no prosecutorial vindictiveness. Goodwin involved several misdemeanor charges which were increased to felony charges after Goodwin fled the court's jurisdiction for three years, and upon return, refused to plead to the misdemeanor charges. Goodwin was subsequently convicted on all felony counts. Goodwin moved to set aside his conviction on the grounds of prosecutorial vindictiveness. Goodwin, 457 U.S. at 371, 102 S. Ct. at 2488. The motion was denied by the federal district court, but the Court of Appeals reversed Goodwin's conviction. The government appealed to the United States Supreme Court, which rejected Goodwin's arguments and reinstated his conviction.
¶ 33 In rejecting Goodwin's argument for prosecutorial vindictiveness, the court noted that the presumption of vindictive prosecution does not generally apply to pretrial plea negotiations between the State and the defendant. In the case of Bordenkircher, for instance, the court held that due process "did not prohibit a prosecutor from carrying out a threat, made during plea negotiations, to bring additional charges against an accused who refused to plead guilty to the offense with which he was originally charged." Goodwin, 457 U.S. at 377, 102 S. Ct. at 2490-91 (discussing Bordenkircher). The court held that the "give and take" of negotiations in the pretrial context did not constitute an attempt to punish a defendant for exercising a constitutional right, so long as the defendant was free to accept or reject the offer made by the prosecution. Bordenkircher, 434 U.S. at 363, 98 S. Ct. at 668. As stated by the court in Goodwin,
An initial indictment-from which the prosecutor embarks on a course of plea negotiation-does not necessarily define the extent of the legitimate interest in prosecution. For just as a prosecutor may forgo legitimate charges already brought in an effort to save the time and expense of trial, a prosecutor may file additional charges if an initial expectation that a defendant would plead guilty to lesser charges proves unfounded.
Goodwin, 457 U.S. at 380, 102 S. Ct. at 2492 (discussing
Bordenkircher).
¶ 34 Elaborating upon this discussion-and critical to our decision here-the Goodwin court then went on to hold as follows:
There is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor's assessment of the proper extent of prosecution may not have crystallized.
In contrast, once a trial begins-and certainly by the time a conviction has been obtained at is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.
Goodwin, 457 U.S. at 381, 102 S. Ct. at 2492-93 (emphasis added).
¶ 35 Applying the reasoning expressed in Goodwin, we conclude that there exists the appearance and reasonable likelihood of prosecutorial vindictiveness in this case. See Groves, 571 F.2d at 453 ("it is the appearance of vindictiveness, rather than vindictiveness in fact, which controls.") (emphasis in original). After the mistrial, the parties were not in a standard "pretrial" plea bargaining situation. The facts and witnesses were known, and "the State [had] discovered and assessed all of the information against [the] accused and [had] made a determination, on the basis of that information, of the extent to which he should be prosecuted." Goodwin, 457 U.S. at 381, 102 S. Ct. at 2493. Knowles had exercised his right to a jury trial, which resulted in a mistrial. Between the first and second trial, no new information was revealed concerning either the extent of B.K.'s injuries or Knowles' conduct. In spite of the lack of any new evidence, the State sought to quadruple the range of punishment to be imposed on Knowles, after he declined to plea to the original charges. Upon invitation to do so by the District Court, the State was unable to provide any factual rationale for the increased charges and increased punishment, arguing only that these acts were within its discretion. Even the District Court Judge, who described himself as a "hard sentencer," expressed surprise at the level of punishment sought by the State in this case. In light of the foregoing, we are constrained to agree with Knowles that because no new factual information was uncovered after the first trial which would justify a decision to increase the charges, the threat of a four-fold increase in punishment has the appearance of prosecutorial vindictiveness, and raises the reasonable likelihood that the State was simply utilizing the increased charges in an effort to deter Knowles from exercising his right to a second jury trial.
¶ 36 Although the dissent is critical of our resolution of this issue, we emphasize that the situation at bar is fundamentally different from the "give and take" of pretrial plea negotiations which occurs every day in our judicial system. Before a trial has actually taken place, the State enjoys broad discretion in its charging decisions. See Smith, 280 Mont. at 165, 931 P.2d at 1276 (citing Bordenkircher) ("Confronting a defendant with the risk of more severe punishment following the rejection of a plea bargain cannot form the basis for a claim of prosecutorial vindictiveness. Allowing such a claim would contradict the premises that underlie the accepted practice of plea bargaining."). But as the Goodwin decision makes clear, the occurrence of a first trial on the merits of the charges changes the calculus significantly with respect to a prosecutor's subsequent charging decisions. If new evidence or information comes to light between the trials which justifies the decision to increase the charges, a decision to "up the ante" may well be appropriate. However, when there is no new evidence and no new information to inform its charging decision, a decision to increase the charges and the range of punishment in that situation raises the reasonable likelihood of a vindictive prosecution.
¶ 37 Accordingly, we reverse Knowles' conviction for assault with a weapon and remand for a new trial on the charge of assault on a minor. In the interests of judicial efficiency, we address the other issues raised by Knowles to provide guidance to the District Court upon remand.
¶ 38 Issue Two: Did the District Court abuse its discretion when it admitted evidence of Cindy's abuse of C.F.?
¶ 39 Knowles contends the District Court abused its discretion and committed reversible error when it admitted evidence of Cindy's abuse of C.F. under the Modified Just Rule. Knowles argues that all four criteria of the Modified Just Rule must be met under State v. Ayers, 2003 MT 114, 315 Mont. 395, 68 P.3d 768, in order for prior bad act evidence to admitted. In this case, however, the District Court determined that evidence in an "excessive discipline" case could be admitted pursuant to Murray, even if the first of the Modified Just Criteria was not met. Aside from this general error in the District Court's reasoning, Knowles also argues that the "other acts" of Cindy's assault of C.F. were simply not similar to the allegations that he assaulted B.K. with a belt. Furthermore, Knowles argues that the "other purposes" for which the evidence of Cindy's conduct against C.F. was admitted, such as to prove plan, motive, or intent, were not relevant to an actual issue in controversy for the assault charge.
¶ 40 Knowles also contends that evidence of Cindy's conduct had limited probative value, and was unduly prejudicial and confusing to the jury. By admitting photographic evidence of the injury Cindy caused to C.F. and discussing her conduct towards the boys, Knowles contends he was forced to overcome guilt by association and was exposed to the likelihood that the jury would convict him because of the impression that he-along with his wife-was a bad parent who deserved punishment. Furthermore, the evidence of Cindy's conduct distracted the jury from the real issue in controversy-whether Knowles committed assault with a weapon during a specific instance in April 2008. For these reasons, Knowles argues that the evidence of Cindy's conduct was inflammatory, caused him prejudice, and was not harmless error.
¶ 41 The State urges us to affirm. The State argues that the evidence of Cindy's conduct was not prohibited by M. R. Evid. 404(b), or even governed by the Modified Just Rule, under State v. Kolb, 2009 MT 9, 349 Mont. 10, 200 P.3d 504. Specifically, the State contends that because this evidence relates to Cindy's conduct, and not to Knowles himself, it is relevant and admissible.
The State alternatively argues that the admission of this evidence constitutes harmless error under State v. Van Kirk, 2001 MT 184, 306 Mont. 215, 32 P.3d 735. Because we are reversing Knowles' conviction on the basis of Issue One, we need not reach this argument.
¶ 42 In the District Court, the State argued that evidence of Cindy's conduct was admissible as evidence of other crimes, wrongs, or acts, pursuant to the Modified Just Rule. The State now changes its legal theory on appeal, arguing that this evidence is not covered by M. R. Evid. 404(b) or the Modified Just Rule. We decline to consider the State's change in legal theory. See State v. Malkuch, 2007 MT 60, ¶ 17, 336 Mont. 219, 154 P.3d 558.
¶ 43 We conclude that the District Court abused its discretion in admitting evidence of Cindy's conduct towards C.F., including photographic evidence of his injuries. As an initial matter, Knowles is correct that all four criteria of the Modified Just Rule must be satisfied in order to admit evidence of other crimes, wrongs, or acts. In Ayers, we held that all four criteria of the Modified Just Rule must be satisfied and explicitly overruled any previous case law which implied the contrary. Ayers, ¶ 76. Thus, to the extent the District Court relied on Murray, which was decided in 1986, to excuse the State from having to prove that all four criteria of the Modified Just Rule were satisfied, this decision was in error. Moreover, it is axiomatic that the "other acts" admissible under the Modified Just Rule must be acts of the defendant, and not acts of a third party "except in limited circumstances where the defendant is attempting to inculpate another person for the crime." Kolb, ¶ 21 (citing State v. Clifford, 2005 MT 219, ¶ 44, 328 Mont. 300, 121 P.3d 489).
¶ 44 We conclude that in any event, evidence of Cindy's conduct in relation to C.F. and B.K. was irrelevant and not probative on the assault with a weapon charge against Knowles. The District Court stated it would allow the evidence of Cindy's slapping C.F. for the purpose of informing the jury how the charges eventually came to be brought against Knowles. However, the District Court could have instructed the State to briefly inform the jury of how the investigation was started without allowing repeated references to Cindy's conduct and without admitting photographic evidence of C.F.'s injuries at trial. See State v. Derbyshire, 2009 MT 27, ¶¶ 39-40,349 Mont. 114, 201 P.3d 811 (stating that repeated references to defendant's status as a probationer and involvement of probation officers in discovering drug evidence were not necessary in order to explain drug possession charges to the jury). Given the potential prejudice resulting from evidence of Cindy's conduct and given that it had no probative value in determining whether Knowles committed assault with a weapon, we conclude the District Court abused its discretion in allowing the introduction of such evidence at trial.
We acknowledge that the range of admissible evidence relative to an assault on a minor charge may well be different than that admissible in an assault with a weapon case. However, we can conceive of no reason why photographic evidence of C.F.'s injuries should be admitted upon retrial.
¶ 45 Issue Three: Did the District Court impair Knowles' ability to present his defense and effectively cross-examine Abrahamson, by denying him access to the CFSD investigative file?
¶ 46 Knowles contends the District Court erred by denying him access to the CFSD investigative file. He argues that he was entitled to review the file under § 46-15-322, MCA. Knowles argues that the in camera review of this material by the District Court impaired his ability to present his defense, and contends that the court improperly limited its review to "smoking guns." Knowles contends that had he been allowed to review the file, then the lack of notes regarding the April 30, 2008 conversation would have been fertile ground for cross-examining and impeaching Abrahamson, especially since he implied during his testimony that he did have notes of their conversation when, in fact, such notes did not exist. Knowles further argues that the file was essential to establishing Abrahamson's lack of credibility, asserting that Abrahamson testified at Cindy's trial that Knowles told him of the disciplining incident during the April 30 phone conversation, but testified to the contrary at Knowles' second trial. Knowles therefore contends he was stripped of his ability to properly question Abrahamson without access to the CFSD investigative file and that his conviction should be reversed by virtue of this error.
¶ 47 The State argues the District Court did not err in the manner in which it handled Knowles' discovery request. The State contends it did not deny Knowles' request for the file. It argues that since the information in the CFSD file is confidential pursuant to State v. Little, 260 Mont. 460, 861 P.2d 154 (1993), and § 41-3-205, MCA, the District Court was required to conduct an in camera review and simply could not release the file to Knowles. The State further argues that Knowles overstates the role that the absence of Abrahamson's notes played in the trial in light of Abrahamson's actual testimony. In this connection, the State argues that Abrahamson never unequivocally testified that he took notes of the phone conversation, but instead testified that notes would be in the file if he had taken them. The State also contends that Knowles never directly asked Abrahamson if he did or did not take notes during their phone conversation. Thus, the State argues that the absence of notes in the CFSD file would not have had any great significance at trial.
¶ 48 Section 46-15-322(4), MCA, requires the State to disclose "material and information in the possession or control of members of the prosecutor's staff and of any other persons who have participated in the investigation or evaluation of the case." At the same time, the information contained in a CFSD investigative file in abuse and neglect cases is deemed confidential under § 41-3-205(1), MCA. However, subsection (2) of this statute provides that "[r]ecords may be disclosed to a court for in camera inspection if relevant to an issue before it. The court may permit public disclosure if it finds disclosure to be necessary for the fair resolution of an issue before it." Section 41-3-205(2), MCA.
¶ 49 A defendant in a criminal trial has a constitutional right to a meaningful opportunity to present a complete defense. State v. Glick, 2009 MT 44, ¶ 29, 349 Mont. 277, 203 P.3d 796. The State has an affirmative duty to disclose evidence to a defendant under Montana law. As we stated in State v. Stewart, 2000 MT 379, 303 Mont. 507, 16 P.3d 391, "Montana's statutory requirements do not hinge on whether the evidence is exculpatory or inculpatory. The plain language of § 46-15-327, MCA, simply mandates that the State disclose all additional information or material within the State's possession." Stewart, ¶ 23.
¶ 50 In the present case, Knowles' complaint with the District Court's handling of the CFSD investigative file focuses on the absence of notes from Abrahamson's April 30, 2008 phone conversation with Knowles. Knowles claims that Abrahamson bolstered his own credibility by implying that he took notes of this conversation. He complains that if he had been granted access to the CFSD investigative file prior to trial, he would have known in advance that Abrahamson did not take any notes of the April 30 conversation, and he would have been able to impeach any testimony from Abrahamson to the contrary, whether made implicitly in the current trial or directly during Cindy's trial.
¶ 51 We fail to see how the lack of such evidence, even if it permitted impeachment of Abrahamson and bolstered the testimony of Knowles, would have impacted Knowles' ability to present a defense in this case. Knowles knew prior to the second trial that Abrahamson claimed to have taken some notes of their conversation during Cindy's trial. Thus, Knowles could have requested that Abrahamson specifically produce the notes, or be prohibited from referring to them at trial. Knowles never made such a request. Moreover, it bears repeating that the only real disputed fact at trial was whether Knowles inflicted bodily injury on B.K. prior to leaving on his trip. Even if it were established that Knowles told Abrahamson he had punished B.K. prior to leaving on his trip, it is unclear how such evidence would have any impact on the disputed material elements of the assault with a weapon charge.
¶ 52 We acknowledge that Knowles raises an important issue regarding the right of a defendant to present a complete defense in those cases where the contents of a CFSD investigative file are arguably important to the defendant's ability to present his defense. There may be cases in which restricted access to the CFSD file could infringe upon a defendant's right to present a complete defense or where an in camera review by the district court would be insufficient. Thus, we decline to categorically endorse the "smoking gun" approach used by the District Court as correct in all circumstances, because we cannot predict how critical the contents of a CFSD investigative file might be in other cases. In this specific case, however, we conclude that the District Court's approach was appropriate and that Knowles' ability to present his defense was not impaired.
CONCLUSION
¶ 53 We reverse and remand Knowles' conviction on the basis of prosecutorial vindictiveness. Furthermore, we hold that the admission of photographic evidence of C.F.'s injuries, as well as other evidence of Cindy's prior bad acts, constituted an abuse of discretion. Finally, we hold that the District Court did not abuse its discretion in conducting an in camera review of the CFSD investigative file, and refusing to disclose the contents of the entire file to Knowles. Reversed and remanded for a new trial on the charge of assault on a minor.
JUSTICES LEAPHART and RICE concur.
JUSTICE NELSON, specially concurring.
¶ 54 I join the Court's Opinion on Issues One and Three. With respect to Issue Two, I concur in the Court's decision but write separately to explain my views on that issue.
¶ 55 The Court holds that all four criteria of the Modified Just Rule must be satisfied in order to admit evidence of other crimes, wrongs, or acts. Opinion, ¶ 43. This is a correct statement of the law as it presently stands. See State v. Ayers, 2003 MT 114, ¶ 76, 315 Mont. 395, 68 P.3d 768. However, I have recently concluded that the Modified Just Rule does not accurately reflect or implement the narrow purpose of M. R. Evid. 404(b), but rather impedes the legitimate use of uncharged misconduct evidence and, moreover, has generated a great deal of confusion and misconceptions in this area of law. See State v. Stout, 2010 MT 137, ¶¶ 75, 79, 93-102, 356 Mont. 468, ___ P.3d ___ (Nelson, J., dissenting). Among other things, I proposed in Stout that we should jettison the first two substantive requirements of the Modified Just Rule (similarity and nearness in time), see Stout, ¶ 102, since these two criteria do not apply to every nonpropensity purpose for which uncharged misconduct evidence might be offered, see e.g. Stout, ¶ 99 (noting that a dissimilar crime (e.g., a carjacking) might be admissible to show the defendant's overall plan to use the car in the charged offense (e.g., a kidnapping), which in turn shows that he is the perpetrator of that offense and had the requisite mens rea). I still maintain that, in the proper case, we should revise the Modified Just Rule so that it conforms to the actual purpose and scope of Rule 404(b).
¶ 56 For the reasons stated in ¶ 44 of the Court's Opinion, however, it is not necessary to reexamine the Modified Just Rule in the present case. Accordingly, with the foregoing caveat, I concur in the Court's decision on Issue Two.
CHIEF JUSTICE McGRATH, concurring in part and dissenting in part.
¶ 57 I concur with the Court's ruling on Issue three and with the result on Issue two. I dissent on Issue one.
¶ 58 The admission of the photograph depicting an injury caused to one of the boys by the defendant's wife was reversible error. It was not admissible under M. R. Evid. 402 as it was not relevant to the determination of the crime charged. Even had the photograph been relevant, it should have been excluded as prejudicial and misleading pursuant to M. R. Evid. 403. Nor do the provisions of M. R. Evid. 404(b) allow for the photograph's admission under the facts of this case.
¶ 59 However, I dissent on whether the prosecutor's offer to allow the defendant to plead guilty to one felony before amending the charge to a different felony with a greater penalty was vindictive behavior under the law. Prosecutors in Montana have wide discretion to determine the offense charged as long as the facts alleged support the charge. State v. Mahoney, 264 Mont. 89, 96, 870 P.2d 65, 70 (1994) ( quoting State v. Booke, 178 Mont. 225, 230, 583 P.2d 405, 408 (1978) ("When the facts of a case support a possible charge of more than one crime, the crime to be charged is a matter of prosecutorial discretion.")). A prosecutor may move the court to amend an information in matters of substance at any time up to five days before trial. Section 46-11-205(1), MCA.
¶ 60 This Court has squarely addressed the issue of vindictive prosecution before:
Confronting a defendant with the risk of more severe punishment following the rejection of a plea bargain cannot form the basis for a claim of prosecutorial vindictiveness.
Bordenkircher v. Hayes (1978),
434 U.S. 357,
98 S.Ct. 663,
54 L.Ed.2d 604. Allowing such a claim would contradict the premises that underlie the accepted practice of plea bargaining.
State v. Smith, 280 Mont. 158, 165, 931 P.2d 1272, 1276 (1996).
¶ 61 Indeed, the facts here present nothing more vindictive than the "accepted practice of plea bargaining." Regrettably, the majority opinion's creation of a presumption of vindictive prosecution under these facts undermines the plea bargaining process. Moreover, the majority misinterprets U.S. Supreme Court decisions in order to apply this presumption. The U.S. Supreme Court upheld the constitutionality of plea bargaining in Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663 (1978). The Court applied a presumption of vindictive prosecution to hold that the State denied a defendant due process by charging him with a felony after he appealed and obtained a trial de novo of a misdemeanor conviction for the same conduct. Blackledge v. Perry, 417 U.S. 21, 27-29, 94 S. Ct. 2098, 2102-03 (1974). However, the Court declined to apply a presumption of prosecutorial vindictiveness to pretrial plea negotiations that resulted in increasing misdemeanor charges to felony charges when the defendant refused to plead. U.S. v. Goodwin, 457 U.S. 368, 381-84,102 S. Ct. 2485, 2492-94 (1982).
¶ 62 The key factual difference that accounts for the U.S. Supreme Court applying a presumption of vindictive prosecution is the existence of a conviction for the original charges. Knowles first felony trial resulted in a mistrial. Shortly thereafter, the State charged Knowles with felony assault with a weapon on December 22, 2008. He was convicted after a trial held June 15-17, 2009. This timing comports with § 46-11-205(1), MCA, and falls within the bounds of prosecutorial discretion. Unlike Blackledge, Knowles did not appeal from a conviction. Like Goodwin, the charges against Knowles were increased during pretrial negotiations, well before he was convicted. To hold that a presumption of vindictive prosecution applies to these facts is an overreaction that creates an unworkable precedent. Our precedent does not require such a presumption and the Court's holding will only undermine principles of judicial economy promoted by plea negotiations.
¶ 63 I would not apply a presumption of vindictive prosecution, and therefore dissent from the Court's holding.