all my blogs

WINNING FEDERAL CRIMINAL CASES - http://winning-federal-criminal-cases.blogs
Dissenting Opinions - http://dissentingopinions.blogspot.com
Winning Federal Criminal Cases - http://winning-federal-criminal-cases.blogspot.com
Ineffective Assistance of Counsel - http://ineffectiveassistanceofcounsel.blogspot.com
Interesting Criminal Cases - http://interestingcriminalcases.blogspot.com
Winning SSI Disability Cases - http://winningsssdisabilitycases.blogspot.com
Homeless in Heaven - http://homelessinheaven.blogspot.com
Habeas Corpus Winners http://habeascorpuswinners.blogspot.com
Montana Winning Cases http://montana winningcases.blogspot.com
Winning Daily Decisions http://winningdailydecisions.blogspot.com
Daily Decisions - http://dailydecision.blogspot.com
MarkGivenPhotographs http://markgivenphotographs.blogspot.com

Old Montana Winning Cases

State v. Kellogg, 14 Mont. 451, 36 P. 1077 Mont. 1894. June 04, 1894 The judgment of conviction in this case was based upon the judgment of the district court in the case of the state board of medical examiners against this defendant, wherein his license was revoked, as aforesaid. As the judgment of the district court in said case, revoking defendant's license, has been reversed, the judgment of conviction in this case must necessarily be reversed, for the reason that there is nothing to support it. Judgment reversed .

Defective Indictment

Territory v. Tunnell, 4 Mont. 148, 1 P. 742 Mont. Terr. (1881)

Where a statement in the instruction is that “the defendant admits the shooting and killing as charged in the indictment,” when the record admission is that “the shot he fired killed the deceased at th e time and place alleged in the indictment,” such instruction is misleading and prejudicial in its character, and is error. For the above reason, and for the one assigned in the case of Territory v. Edmonson, ante, 738, the judgment of the lower court is reversed.

Warrantless Arrest

State v. Ellington, No. 05-567, 2006 MT 219 (September 6, 2006). Warrantless arrest. Police obtained a search warrant to search Stacy Wizenburg’s (Wizenburg) car based on suspicion that she was engaged in the distribution of dangerous drugs. Detective Swandal observed Ellington leave the casino and approach the driver’s side window of Wizenburg’s car. Ellington was standing by Wizenburg’s car and talking with its occupants as Detective Swandal approached the car to serve the warrant. Ellington stepped away from Wizenburg’s car and began walking toward the casino when he saw Detective Swandal approaching. Detective Swandal stopped Ellington and informed him that he was detaining Ellington pending a drug investigation involving Wizenburg’s car. An officer frisked Ellington for weapons, handcuffed him, and placed him in the backseat of Swandal’s patrol car. Officers did not discover any weapons or contraband on Ellington during the frisk. When police removed handcuffs at police station they discovered small bag of meth. These facts fail to establish probable cause to arrest. We thus conclude that Detective Swandal arrested Ellington without probable cause. The discovery of the contraband occurred, however, only after the officers had arrested Ellington and transported him to the Law and Justice Center. We therefore hold that the District Court erred when it denied Ellington’s motion to suppress. Reversed and remanded.

instruction is misleading and prejudicial

Territory v. Tunnell, 4 Mont. 148, 1 P. 742 Mont.Terr. 1881. Where a statement in the instruction is that “the defendant admits the shooting and killing as charged in the indictment,” when the record admission is that “the shot he fired killed the deceased at the time and place alleged in the indictment,” such instruction is misleading and prejudicial in its character, and is error. For the above reason, and for the one assigned in the case of Territory v. Edmonson, ante, 738, the judgment of the lower court is reversed.

Robbins v. State, 310 Mont. 10, 50 P.3d 134 Mont.,2002. Following affirmance of his convictions for deliberate homicide and robbery, 292 Mont. 23, 971 P.2d 359, defendant petitioned for postconviction relief. The District Court, Eighth Judicial District, Cascade County, David Cybulski, J., denied petition. Defendant appealed. The Supreme Court, Terry N. Trieweiler, J., held that: (1) error in jury selection process denied defendant constitutional right to impartial jury; (2) substantial change in law after defendant's convictions made “law of the case” doctrine inapplicable; (3) defendant's statutory argument encompassed constitutional argument; and (4) violation of defendant's right to impartial jury required retroactive application of LaMere decision establishing errors in jury selection process as per se basis for reversal. Reversed and remanded.

State v. Good, 309 Mont. 113, 43 P.3d 948 Mont.,2002. March 28, 2002 held that: (1) defendant was not denied his right to a speedy trial by 362-delay attributable to state; (2) trial court abused its discretion in denying for-cause challenges to two prospective jurors; (3) structural error occurs if a district court abuses its discretion by denying a challenge for cause to a prospective juror, defendant uses peremptory challenge to remove disputed juror, and defendant exhausts all of his or her peremptory challenges, overruling State v. DeVore, 1998 MT 340, 292 Mont. 325, 972 P.2d 816; State v. Williams, 262 Mont. 530, 866 P.2d 1099; and (4) improper denial of for-cause challenges in present case was structural error requiring reversal. Affirmed in part, reversed in part, and remanded for new trial.

State v. Anderson, 35 Mont. 374, 89 P. 831 Mont. 1907. An instruction that important and striking contradictions in the statements of the different witnesses who testified at the trial should be attributed to deliberate perjury, rather than to the fault of inattention or defect of memory, and that coincidence in all points of the stories of different witnesses always engenders a suspicion of practice and concert, and gives rise to the imputation of perjury, was error.

State v. Cook, 42 Mont. 329, 112 Pac. 537. 1907 Treating the evidence in the record in the light most favorable to the state, it fails to show that defendant is guilty of the crime charged. It would seem that the controversy between the prosecuting witness and this defendant is one for adjustment in a civil suit. The criminal court is not the proper forum for settling disputed questions relating to the title to property, and it ought not to be converted into an agency for the collection of debts. However, if the defects in the record as now presented arise from an erroneous theory adopted by the prosecution, the state should have an opportunity to present its case, if any it has, fully and fairly; and to that end we shall not go farther than to remand the cause for a new trial, or for such other proceedings as the state may take, not inconsistent with the views herein expressed. The judgment and order are reversed, and the cause is remanded for further proceedings. Reversed and remanded.