Mistrial declared, but Devlin will be retried

Probation.

That word triggered a mistrial Monday afternoon when uttered by a prosecutor’s witness in the trial of Charles Jay Devlin, the suspect in last year’s kidnapping of a Whitefish woman.

Devlin appeared before a jury on charges of kidnapping, a felony DUI, obstructing a peace officer and failing to provide proof of insurance. When Deputy Lake County Attorney Mark Russell called his first witness to the stand, Sheriff’s Deputy Glenn Miller recounted the events of May 27, 2006. That was the day Miller responded to a call made early in the morning by Rhonda Banik who reported screams coming from a vehicle parked near her home in Wood’s Bay.

Coming from Polson, Miller headed north on Highway 35. En route, a fellow deputy who happened to be on the same highway radioed Miller to watch for a van that was driving suspiciously slow. Miller found the van sideways in the middle of the roadway attempting to back up into the entrance of Yellow Bay State Park, located about 16 miles south of Wood’s Bay. It was a dangerous maneuver, he said before the jury, so he initiated a traffic stop.

Upon approaching the vehicle, the driver stepped out of the van. Miller notified him to remain seated. He noted that the driver smelled of alcohol, his speech was slurred and the zipper of his pants was down. He also had several scratches on him. Asked if he had been drinking, the driver said he had a glass of wine but that the smell was coming from his wife who was passed out in the back.

Miller noticed that van had no seats in the back, only a pile of blankets, towels and of clothes. He didn’t see anyone unconscious, though there was a lump under the pile “which may or may not have been a person at that time,” he said.

Then suddenly, “A female popped up out of nowhere,” he added.

The female was naked, except for a bra, and was screaming frantically.

“She was terrified,” he said, adding that the girl repeatedly told him not to leave her and that she had no idea who the driver was.

The girl exited the van and ran off into the woods.

Miller then handcuffed the driver who was identified as 57-year-old Devlin. Miller told the jury that after running his name through the scanner, he found that Devlin was on probation.

Defense attorney Ben Anciaux immediately called for a mistrial.

Montana Code Annotated 2005, under rule 404b, states “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Essentially, a defendant’s criminal history cannot be brought up in a trial. There are exceptions. If a defendant’s character is called into question, criminal history can be divulged. But this was not the case with Devlin’s trial.

“We’ll try Mr. Devlin on the facts, not previous criminal history,” said Judge Kim Christopher.

Rhonda Banik was on hand to testify, but the trial was cut short before she was brought to the stand.

“I was disappointed,” she said of the mistrial. “I felt bad for the young girl (who was allegedly kidnapped). She couldn’t get this behind her. She has to wait two more weeks.”

Prior to the abrupt ending, Russell informed the jury that the alleged victim ran into Devlin at the Garden Bar in Bigfork where she and friends was taking in the Whitewater Festival. Russell told the jury that they will hear testimony from the woman’s friend about their interaction with Devlin. Apparently the “old man” had been “flirty” with the girls, he said.

The alleged victim had been drinking excessively that night and went missing just shortly after meeting Devlin in the bar, he said. She woke to find herself in a strange man’s van, frightened and naked, according to court documents.

Anciaux stated that the woman had blacked out from drinking too much and that his client had found her in his van. She was placed into the vehicle by her friends because she was passed out in the rain getting soaked. Shortly after doing so, her friends skipped off to party. Devlin had roused the woman from her stupor long enough for her to inform him to take her to Yellow Bay where her friends were camping.

“He was trying to do a good turn for a girl who was all wet and looking for her friends,” said Anciaux.

Anciaux said his client denied ever telling a sheriff’s deputy that the girl was his wife. He also noted that at no time were the doors of the van locked and that the girl had a cell phone with her the whole time.

“The prosecution is trying to make it seem as though he had something malicious planned,” he said.

However, there was no explanation as to why the woman was naked.

Upon his arrest, Devlin consented to a breath test which registered over the legal limit of .08. Shortly thereafter, he clutched his chest and expressed symptoms associated with a heart attack. Deputies at the scene had to halt the investigation and transport him to St. Joseph’s emergency room. A doctor determined that there was no evidence of heart problems.

Meanwhile, the woman was found, provided a blanket and taken to the Flathead County Sheriff’s office for an interview.

After being placed in the Lake County Detention Center, Devlin again complained of heart problems and was lifeflighted to St. Patrick’s hospital in Missoula, where a second opinion confirmed the first doctor’s diagnosis, as another doctor could not find the cause of these chest pains.

Anciaux said that his client had a triple bypass surgery whereby a stint was placed in his heart. Ever since then, Devlin has had heart complications.

Within the first three months of his incarceration, Devlin had run up a $17,816 medical bill, according to a Lake County Budget detail report.

The trial was reset for April 9.