*1
MONTANA,
OF
STATE
Appellee,
Plaintiff
FAVEL,
LEE
JACKIE
Appellant.
Defendant
DA 13-0686.
No.
September
Submitted on Briefs
2, 2015.
December
Decided
MT 336.
For Helena. General, Attorney C. Timothy Fox, Montana Appellee:
For Dahl, General, Helena; Attorney Gina Elias, Assistant K. Brenda Hirsch, Attorney, Havre. County County Attorney, Deputy Ed Hill of the Court. Opinion MCKINNON delivered JUSTICE from the felony conviction Twelfth appeals Lee her Jackie Favel ¶1 the influence Court, County, driving for under Hill Judicial District (DUI). We affirm. alcohol restate as following appeal, which we issue Favel raises
¶2 follows: upon the comment prosecution improperly
Did the inference MCA, 61-8-404(2), that and assert contained within intoxication innocence, thereby establishing her responsible Favel was for trial? impartial a and process right to denying Favel her due fair BACKGROUND PROCEDURAL AND FACTUAL a 21,2012, Department received the Havre Police September On ¶3 to Havre in a traveling from Chinook driver of an intoxicated report thereafter, Poulos observed Sergeant Andrew Soon green Cadillac. onto 12th Avenue matching description southbound turn vehicle the vehicle. He began to follow observed Sergeant Poulos in Havre. side and of the street from the north side south vehicle drift Sergeant hit Poulos noted vehicle nearly pedestrians. two apply failed to and that driver pedestrians came feet” “within the brakes. and identified Favel as stop Poulos initiated a traffic Sergeant
¶4 glassy; and she was eyes were red He noticed Favel’s driver. beverage coming of alcoholic was slurring speech; strong her and a odor vehicle, Poulos asked Sergeant After Favel exited the from her breath. and recite the count from 33 from 11 to down her to count correctly. any of these exercises complete failed to alphabet. Favel sobriety field Next, complete standardized Favel asked ¶5 one-leg and the stand (SFSTs), including the walk-and-tum tests eight turn, Favel committed seven On the walk and out test. line, taking balance, off mistakes, stepping losing her including stand, Favel committed steps. one-leg On the an incorrect number arms, mistakes, raising her including swaying, out of four three observations, Sergeant Poulos on his putting her foot down. Based test. Favel preliminary to a breath refused. Favel to submit asked SFSTs, Sergeant placed Poulos Favel arrest Following Center. At the County Detention her to the Hill transported sample submit a breath Center, was asked to Detention Favel to submit to again refused screening using Intoxilyzer 8000. Favel refusal, applied for and Sergeant After Poulos a breath test. Favel’s sample of authorizing him to obtain a search warrant received a State Crime Lab Subsequent testing at Montana Favel’s blood. of 0.13 alcohol concentration that Favel had determined blood percent. DUI, fourth by felony Information charged The State filed an Information subsequent. State later Amended charge operating noncommercial vehicle an alternative
include more, felony. percent concentration of 0.08 also alcohol the court requesting a motion in limine Prior to Favel filed any argument test results and prehminary exclude evidence of breath state to the burden of from the prosecution shift *3 motion, stated: to the second of her regard part the defense. In Favel admissible, give a or test is [A]lthough a failure to blood breath argument by comment the State that Ms. Favel could have a test would “proved innocence” breath blood [sic] his giving to lack of shifting [sic] of the burden to Ms. Favel show his be culpability. criminal to response, object
In its the State did not the exclusion did not to a preliminary test as Favel submit breath results Regarding burden-shifting argument, Favel’s preliminary breath test. discussing the inference of intoxication is the State contended that the and does not the burden onto admissible evidence shift of 61-8-404(2), MCA, that a The State reasoned that “states § defendant. a inference that the Defendant was refusal creates rebuttable Defendant “[s]uggesting jury the influence” to the refused the exactly type positive she aware the result would be the because was precisely situation may propose, of inference a prosecutor 61-8-404(2) contemplates.” Mont. Code Ann. trial, Court considered prior dire, to voir day On the District outstanding The court ruled motions. bench several
granted to exclude evidence breath request preliminary Favel’s argument However, burden-shifting test. the court did not address Instead, to the court turned in limine. by Favel in motion raised bring the burden- Favel did unrelated to this appeal. other motions ruling from the the court or seek to the attention of shifting issue court. testify in its case-in- Sergeant Poulos to At the State called direct During September concerning
chief events Poulos, you “[D]id asked: Sergeant prosecutor examination sample clear her [breath] to provide give opportunity her an “I did.” Sergeant replied, Poulos driving under the influence?” or move to prosecutor’s question strike. object did not to the refusal argument, discussed Favel’s During prosecutor of Favel’s by commenting on the circumstances to a test breath submit SFSTs, her test. and the results of blood her stop, performance argued: prosecutor The looking an officer is signs impairment
These are all he turned point, At investigation. DUI He them all. in a saw Breathalyzer to determine the instrument, portable to an prove how an instrument that could system. in her It is alcohol her, prove system, could exonerate could much is in her alcohol innocence. her Sergeant Poulos: from the argued perspective then prosecutor
The taking investigation her which part He went next said, going He I’m to have County Center.... the Hill Detention opportunity prove give you tests. I will another you retake these said, well, right, all I’m impaired. She refused. He you’re to me Implied Consent law. It’s you going to read Montana right provide you have the basically iteration another provide a breath basically, you given consent to have breath — says you time, Consent Implied sample. At Montana the same You can blood right get your draw. own independent which again refused instrument our work. She double-check innocence and she refused. prove could her of intoxication the inference prosecutor addressed Lastly, rebuttal, stating: refuses, you can infer person if a next inference is that the reason... course, obviously. Defense said are
they impaired, fiercely protective of herself. She’s she is was because she refused *4 her sample prove of a that can innocence? fiercely protective blood no illogical, makes sense. completely It’s during prosecutor’s object not statements Favel did closing rebuttal. guilty of County a found Favel two-day juiy a Hill After
¶12 Montana Favel Court sentenced DUI. The District felony months, a of 13 followed of Corrections term Department for years. term of 3 suspended OF
STANDARD REVIEW raised for the first Generally, does not address issues this Court ¶13 rights are However, fundamental on when defendant’s time appeal. law error doctrine invoked, choose the common may to invoke in a manifest failing claimed error result to review the where question may leave unsettled miscarriage justice, may compromise proceedings, of the trial or 94, 12, Taylor, 2010 judicial process. discretionary, and we P.3d 79. Plain error Reim, 108, 29, 374 apply case-by-case basis. it
DISCUSSION upon comment prosecution improperly ¶14 Did inference of 61-8-404(2), MCA, Favel and assert that intoxication contained within § innocence, thereby denying Favel establishing her responsible for trial? process right impartial due to a her fair suggesting that she argues prosecutor’s that the comments test to law by providing her innocence a breath proven could prosecutorial constitute impermissible enforcement were presumption diluted her contends that misconduct. She the comments her, the burden of effectively innocence shifted go beyond discussing rebuttable reasoning that the comments 61-8-404(2), MCA. inference of a refusal contained § within dispute prosecutor’s does State not response, comments failed to improper, argues instead that Favel were but contemporaneously preserve appeal because she did issue that, The State asserts while object prosecutor’s statements. instances, limine may appeal in some preserve motion in issue did did not so because the District Court Favel’s motion fimine do argues the State definitively Consequently, rule on her motion. comments object prosecutor’s improper that Favel needed prosecutorial during preserve her claims order misconduct. objection timely properly make a Generally, “[a] defendant must Paoni,
preserve appeal.” an issue for However, 46-20-104(2), 1040; see MCA. also
477 a motion under which general rule exception to the out an have carved even in some instances appeal an for may issue in limine “preserve at is not made alleged an objection to contemporaneous though a 32, 243 391. 35, 358 Mont. P.3d 224, 2010 MT Ankeny, ¶ trial.” Evidence, or the Rules for Although provided Montana statute in the inherent motion in limine rests granting of a “[ajuthority for the take such and to admit or exclude evidence of the court to power parties.” all trial for necessary to afford a fair as are precautions 1236, 1238 Estate, 160, 164-65, 519 164 Mont. P.2d Kinyon v. Wallin (1974). preserved adequately in limine maintains that her motion assertions, that, contrary to the State’s argues She appeal.
the issue for
analysis
on
has focused
trial
preservation
“this Court’s
issue,” rather than
an
to consider’
‘given
opportunity
court was
ruling.
a
trial court
final
whether the
issued
to
object
at trial
needed
agree
the State that Favel
general
aAs
misconduct.
prosecutorial
her claims
preserve
of this Court’s
in
to the focus
regard
correct
Favel is
proposition,
however,
limine;
in
involving
analysis in
motions
previous cases
in limine
permitted a motion
in which we have
prior
each of our
cases
a definitive
provided
court
an
on
the district
appeal,
issue
preserve
319,
240,
MT
See,
BNSF Ry.,
v.
2015
e.g., Anderson
ruling.
187, 328
Crider,
P.3d
139,
1248; State v.
354 P.3d
307,
LLC,
Transp.,
v. First
612;
Student
Peterson-Tuell
Vukasin,
16;
P.3d
Vukasin,
previous
cases wherein
P.3d 1284. In
we considered
by party’s
preserved
properly
that an
had been
concluded
had
issue
analyzing these
Vukasin,
reviewing and
34. After
motion.
pre-trial
cases,
motion
pre-trial
in “each
these
cases,
concluded that
Vukasin,
court.”
34. We
by the district
limine
denied
was
directly
question
faced with the
that “the
court was
explained
district
appeal any
for
defendant,
thereby preserving
against
and ruled
the motion.”
specifically
evidentiary
addressed
issue
an
Thus,
preserve
party
allowed a
Vukasin,
never
having obtained a
party
on a motion in limine without the
issue based
on the issue.
ruling
the district court
definitive
other state courts which
consistent
approach
an
¶20 Such
See,
Milliken
e.g.,
issues.
preserve
in limine to
permit a motion
Clinic,
914 A.2d
154 N.H.
Dartmouth-Hitchcock
(“[a]
appeal
(2006)
an
preserve
motion in limine is sufficient
issue
on the
definitively rules
at
if the trial court
objection
an
without
trial”)
State, 118 Nev.
added);
Richmond
(emphasis
prior
issue
Silva,
Kobashigawa v.
129 Haw.
(2002);
(2013).
to renew
party
Similarly,
require
the federal courts
ruling
a definitive
provides
the trial court
objection at trial unless
103(a) (“Once
court makes a
Fed. R.
the motion. See
Evid.
evidence,
excluding
either
admitting or
ruling on the record
definitive
objection
or offer of
need not renew an
party
at
before
added.)
(Emphasis
for appeal.”).
a claim of error
preserve
ruling
delay
Moreover,
may justifiably
court
wish
a district
begun. Motions in
after the trial has
admissibility of evidence until
hypothetical
anticipation
made in
frequently
limine are
often
on record
develop
trial and
circumstances
times
*6
Daniels,
v.
only
developed. See State
incomplete
that
or
partially
426, 265
a trial court
278, 362
Consequently,
Mont.
P.3d 623.
evidentiary
light
in
to rule on
issues
position
often
in a better
will
be
See, e.g.,
during trial.
that
specific
facts and circumstances
arise
431,
273,
21,
Mont.
alternative that claim, unpreserved We error review Court under doctrine. Crider, doctrine, discretion. law common under the case-by-case on a sparingly, doctrine 30. We invoke ¶ error, Daniels, Court find this will 32. Before ¶ basis. “(1) implicates claimed must: show that the party appealing (2) failure to this Court that right ‘firmly convince’ fundamental miscarriage of claimed would result a manifest question unsettled justice, leave judicial compromise or proceedings, Daniels, making inquiry, “we consider 32. In
process.”
389,
Lindberg,
MT
of each case.”
totality of circumstances
76, 196
P.3d 1252.
347 Mont.
MCA,
of fact
61-8-404(2),
the “trier
provides
Section
that the
test]
[to submit
a breath
[a defendant’s]
infer from
refusal
previous
We have
several
the influence.”
person was
61-8-404(2), MCA, in the
constitutionality
sustained
occasions
improperly shifted the
challenges that the statute
process
of due
face
Morris, 2006
City
Falls v.
to the defendant.
Great
proof
burden of
Michaud,
692;
State
MT
Anderson,
636;
MT
244, 180 P.3d
prosecution to
further
permitted
¶25 of our principle “A improper. were comments prosecutor’s a every element of prove the State justice system is that criminal doubt,” Daniels, The United 33. beyond ¶ reasonable charged offense a Due Process Clause held that “the explicitly Court has Supreme States a beyond except upon proof against conviction the accused protects to the crime necessary fact constitute every doubt of reasonable 358, 363-64, 90 S. Ct. 397 U.S. charged.” Winship, In re ishe which (1970). against dilution of carefully guard 1068, 1072-73 A court “must by probative evidence and guilt is to be established the principle that Williams, 425 U.S. 501, 503, 96 Estelle v. beyond a reasonable doubt.” reason, (1976). “based on A court so must do S. Ct. Estelle, 425 U.S. at experience.” and common human principle, Ct. at 1693. S. clear, above, explained that made as While we have to a a refusal take evidence of defendant’s
prosecution can introduce guilt, argue the defendant’s breath test to consciousness “proven have of in this case —that Favel could complained comments potential by submitting to a breath test —have her innocence” state of and the State’s between a defendant’s mind blur distinction true, course, comments prosecutor’s It that the burden of proof. 61-8-404(2), MCA, a share contained within § inference person that the who Underlyingbothis assumption thread. an common likely willing be that he or she is not intoxicated would believes demonstrate, show, prove or otherwise that he a provide breath Nonetheless, countenance is, in not intoxicated. cannot fact, or she language to defendant’s proof explain use of prosecutor’s burden great too that State’s burden simply The risk is mental state. mind repeated of a diminished use proof juror in the will be demonstrate, show, language prove as proof burden of —such —in Thus, have done. we conclude reference to what the defendant could remarks, indicating that if Favel were innocent she prosecutor’s test, were by submitting her innocence to a breath proven would have improper. case, said, we conclude the on the record in this That based comments do not rise a level sufficient find
prosecutor’s
review,
are
unlike harmless
We
mindful
under plain
review,
proof.
appealing party
carries
burden
Hart, 332, 52, 303
71, 15 P.3d
instances in
917. “The
our common law
error review
which we have exercised
power
Hart,
are rare.”
similarly
51.
refused
numerous instances
We have
comments,
“even in
prosecutor’s
review of
conduct
improper.”
the comments were
cases
have concluded
where we
Aker,
253, 29, are
case in
appropriate
not convinced
which
First, the court
to reverse a conviction.
invoke
error doctrine
regarding
properly
jury
on the State’s
instructed
burden
on the
driving
element of
while under
influence and
each
“American
presumption
explained
of Favel’s innocence. We
ability
jury’s
to follow instructions
jurisprudence depends on
*8
provide.” State
law that courts
presumed to follow the
juries are
Prior to
240,
The State of Montana is doubt.... The defendant beyond a of the Defendant reasonable or evidence. present innocence required her prove jury prior to deliberations: again court instmcted The charge against is to be innocent presumed defendant The every stage throughout her remains with presumption her. This your on the verdict. It during deliberations the trial and you in the case are convinced from all evidence overcome unless guilty. the defendant beyond reasonable doubt allegations all the defendant By guilty, of not denies plea her her required prove her. The defendant is not charge against evidence. present innocent guilt proving burden of of Montana has the
The State doubt. beyond a reasonable defendant jury throughout Second, continually reminded the prosecutor The proof. the burden prosecutor that the State proceedings carried job to dire, closing: “it’s the State’s during opening, voir reiterated Defendant a reasonable doubt” “the beyond prove person guilty prosecutor relied anything.” Lastly, prove doesn’t have jury heard prove her case. than evidence other Favel’s refusal observing indicators testimony in he described which Sergeant Poulos’s testify that Sergeant Poulos jury heard impairment; of alcohol jury vehicle; her and the pedestrians with nearly two hit corroborating testimony. his Poulos’s on-board video Sergeant watched Crime Finally, State introduced evidence from Montana 0.13 grams per alcohol content was showing that Favel’s blood Lab milliliters of whole blood. instmctions, transcripts, Having jury reviewed Favel, say against we cannot presented
and the evidence miscarriage in a manifest Favel’s claims will result failure to review unsettled of Favel’s the fundamental justice, leave to reverse judicial process. decline comprise plain prosecutorial claims of misconduct Favel’s doctrine. Affirmed. BAKER, COTTER, and RICE concur.
JUSTICES
WHEAT
MCKINNON,
concurring.
specially
JUSTICE
arisen within
that have
to address some issues
separately
I write
its
contributing to
seem to be
jurisprudence,
which
analysis
lines of
First,
two distinct
disarray.
adopted
state
of error under
evaluating
unpreserved
claims
*9
Second,
confusion,
adding to the
we have been inconsistent
doctrine.
review,” “plain
meaning
“plain
term
error
of the
respect
error,”
to a decision
doctrine,”
particularly as it relates
“plain
error
of
exercise, conduct,
engage in the standard
or otherwise
declining to
specific
of the
Lastly,
application
in our
we have been unclear
review.
relevant
error
plain
or criteria
review.
considerations
review, closely
of
Preliminarily,
error
is a standard
plain
review
Martinez,
271, 279,
error
related to harmless
review.
Olano,
46-20-701, MCA; United
v.
States
(1980);
P.2d
(1993).
731-32, 113
1770, 1776
S. Ct.
When
defendant
507 U.S.
may apply either
alleges
proceedings,
in the
a court
an error
trial court
review, depending upon whether
plain
harmless error review or
error
Columbus v.
See Town
preserved
appeal.
claimed error is
of
215, 36
a defendant
Harrington, 258, 307 Mont.
937. If
contemporaneous
objection
by raising
of error
preserves his claim
limine,
submitting
or
a motion in
during
the trial court proceedings
of
the burden
harmless
error
and the State has
apply
we
review
demonstrating
Conversely,
the error
harmless.
if defendant
fails
plain
error
appeal,
apply
issue for
we
properly preserve
his
of persuasion.
and the defendant has the burden
standard
review
Olano,
Godfrey,
734-35, 113
507 U.S. at
1778;
Ct. at
S.
254,
[W]e
a criminal
fundamental
implicate
errors
defendant’s
objection
contemporaneous
if no
rights, even
constitutional
error at issue
failing to
made ... where
claimed
justice, may
leave unsettled
miscarriage
in a manifest
result
trial or
of the
question
judicial
may compromise
proceedings,
power
appellate
our inherent
holding,
rely]
[we
process. In so
*10
Constitution.
under Montana’s
and
137-38, 915
particular
facts
P.2d
Finely, 276 Mont. at
error
plain
applicability
case dictate the
each
circumstances
134,
approaches terminology ways. Our added in inconsistent has different with the creation inextricably intertwined appears confusion and Leaphart Justice divergent plain strains of error review. these two 95, 356 MT problem Haagenson, in recognized the State in our use not been consistent 177, 232 367, “[w]e explaining ‘plain to error doctrine’ versus ‘decline’ as it relates the of the verb ” concurring). J., (Leaphart, Haagenson, error review.’ ‘plain simply decline cases in which we noted that we have Leaphart Justice essentially no explanation with plain to exercise error review Finley criteria; cases analyzed appeal indication that we error, alleged plain but decline engage in the review of in which doctrine; we discuss plain error and cases where to invoke error plain to review. and then decline exercise merits of claim J., concurring). These (Leaphart, semantic Haagenson, litigants to Court and difficult for the have been inconsistencies analysis application a consistent and have interfered with interpret unpreserved a claim of addressing when due, to terminology part, emergence confusing Our analytical approaches of two jurisprudence identifiable Montana’s hand, might be referred On the one what single review. standard record and the merits examine the approach, we to as the traditional If Finley criteria are satisfied. to determine the claim whether are, our discretion reverse next decide whether to invoke they Finley criteria ofthe for consideration trial court. This allows approach on the facts and circumstances together, depending independently case, Court to consider also allows this whether particular If one ofthe criteria is any error in the first there was instance. occurred, analysis then met, including actually error has that by simply affirming Importantly, the trial may be shortened court. satisfied, Court has the Finley if criteria are still even deny discretion relief. although approach, this traditional have followed
¶37 We
Crider,
See,
many
e.g.,
State v.
terminology,
cases.
incorrect
187,
“we decline
(stating
375 Mont.
concurring). *12 486 conflicting two come to these the time has reconcile my opinion, In
¶39 promote internal only do so not to analysis. should lines of consistency in promote opinions, our but also to consistency within instance, case, did not in this the State arguments. For appellant likely claim of error its the merits Favel’s address brief — showing require of review to a threshold understanding our standard alleged of the Finley considering the merits of the criteria before view, provides method the most my the traditional In First, is fundamentally analysis. approach the traditional sound underlying Finley purposes and furthers the consistent with reviewability, is rule error doctrine “not a error doctrine. The rather, reviewing i.e., it is a doctrine that reversibility, it is a rule of that, although rectify ruling a trial court invokes in order to court court, at all in trial or never raised properly either preserved judgment, trial court’s reasons requires reversal nonetheless Jot, (2014) (emphasis Appellate 5 Am. Review 716 policy.” 2d added). to By using Finley criteria to determine whether error, using rather than the criteria to determine whether claimed court, necessarily lose focus on what should reverse trial be discretionarily objected “correct error not to at inquiry: central fairness, integrity, public reputation [which] ... affects 134, 915 Our Finely, Mont. at P.2d at 213. judicial proceedings.” 276 guided must whether the error discretion be necessitates exercise it because has affected reversal inevitably will have to focusing inquiry, on this
proceeding. error itself. consider the Second, refusing to the merits of claim until after address showing weight the clear against a threshold
party makes overwhelming among appellate consensus courts authority. any error review is determine whether step plain-error “first Lewis, 32, 43, Ill. 2d 912 N.E.2d People v. 234 occurred.” (2009).4 Indeed, Montana alone in its to address stands refusal 4Accord, (Minn. 269, 273-74 2014); Lawrence, Kelley, 855 State v. N.W.2d Cannes, 750, 765, 506, 511-12, 723 (2012); People v. 460 Mich. 365 N.C. S.E.2d 3, 18, 459 114, 129 (1995); Miller, (1999); 194 S.E.2d State v. W. Va. N.W.2d (Tenn. Dotson, 2014); People Hampton, 746 P.2d State v. 450 S.W.3d (Colo. (1998); Olander, 50, 14, 575 State, 1987); Snow v. 1998 N.D. N.W.2d (2009); Russell, 475, 489, WY 117, 159 N.H. 986 A.2d P.3d 505 (2009). inquiry plain-error Similarly, initial under the under federal law the States, 520 U.S. whether there is error. v. United doctrine is determine Johnson (1997). 466-67, 117 1544, 1548-49 S. Ct. has preliminary been satisfied. merits until Uniformity jurisdictions heavily counsels in favor sister law method, in an area of the that is rooted particularly traditional law, from case other where stand benefit law these common jurisdictions. Finley criteria Lastly, in method —with using the threshold merits
inherently
discussion on the
requiring a certain amount of
find
frequently
Court
to resolve the merits —we
unable
line,
fine
position
attempting
walk a
ourselves in
untenable
leading
Court,
such as: we find the prosecutor’s
comments from
*13
52, 24, 364
291,
Mont.
“troubling,”
Lacey,
State v.
2012
¶
comments
MT
comments,”
1288,
State
prosecutor’s
“we
P.3d
do
condone
272
389, 34, 347
1252,
Lindberg,
or worse
Mont.
¶
v.
prosecutor’s
“fail[ed]
the defendant
to demonstrate the
comments
yet,
any error,”
precedent.”
to “set a
but we refuse
amounted
27-28,
331,
Trial
Daniels,
247,
MT
review (1994). 150, 307, Also Arlington, 127, 875 P.2d 321 have held the must be error precedent, consistent federal 488 254, 197, 38, 95 P.3d Godfrey, v. 2004
“plain.”
¶
Stoic
MT
error,’ is that the
aspect of‘plain
that a “fundamental
(explaining
166
341,
”);
Upshaw, 2006 MT
‘plain.’ State v.
alleged error indeed must be
(“A
‘plain
26,
162,
aspect
fundamental
Mont.
rights,
consistent
which
(“The
‘plain
provides
at
error’ doctrine
265 Mont. at
infringed.”).
rights
party
of a
have been
remedy
substantial
where
also,
Wilkins,
(1987);
Mont.