State v. M. George, 459 P.3d 854

Background:

Michael George was tried in Lincoln County and convicted of felony DUI, disorderly conduct, and driving with a suspended license.
On the second morning after a recess, an appointed juror failed to appear due to a scheduling misunderstanding; the court and counsel conferred about possibly substituting an alternate juror.
George, who was in custody, was not present for those in-chambers discussions; defense counsel told the court they could proceed without George and did not speak with him beforehand or object to his absence.
The court ultimately did not substitute the alternate, telephoned the absent juror, required his attendance, and the trial resumed; jury deliberations extended into the evening.
George raised on appeal an unpreserved claim that his fundamental right to be present at critical stages was violated; the Montana Supreme Court reviewed under the common-law plain error doctrine.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court violated George's right to be present by discussing juror substitution and speaking to the absent juror in his absence	The State: matter was administrative, did not affect substantial rights or jury composition	George: absent from a critical stage; denied meaningful input on jury composition and trial scheduling that could affect fairness	Court: Right to be present was implicated (first prong satisfied) but no plain error because no manifest miscarriage of justice (second prong not satisfied); conviction affirmed
Whether the unpreserved claim merits reversal under plain error review	The State: George failed to show prejudice or that fundamental fairness was unsettled	George: his absence could have changed jury composition or trial timing, affecting fairness	Court: Applied plain error; declined relief because defendant did not firmly convince court that failure to review would result in miscarriage of justice
Whether jury composition or selection was altered by the in-chambers discussions	The State: jury composition remained unchanged; alternate had already been accepted during selection	George: might have chosen substitution to avoid delay/late deliberations	Court: No change in jury composition; jury had been properly selected and vetted
Whether late-night deliberations or delay prejudiced the defendant	The State: court mitigated concerns (told jurors no pressure, offered hotel reimbursement)	George: delay could influence jurors and verdict	Court: record shows mitigation; defendant failed to show prejudice or unfairness sufficient for reversal

Key Cases Cited

State v. Hatfield, 392 Mont. 509 (2018) (defendant's absence during sidebars and in-chambers discussions implicated right to be present)
State v. Akers, 389 Mont. 531 (2017) (plain-error reversal where jury instruction on burden of proof undermined confidence in verdict)
State v. Matt, 347 Mont. 530 (2008) (defendant's right to be present applies even when discussions involve legal issues)
State v. Kennedy, 320 Mont. 161 (2004) (discussion with jury in defendant's absence violated right to be present)
State v. Tapson, 307 Mont. 428 (2001) (trial judge entering jury room during deliberations implicated right to be present)
Addington v. Texas, 441 U.S. 418 (1979) (standards of proof protect against erroneous judgments)