*1 MONTANA, STATE OF Appellee, Plaintiff v. MCDONALD,
RAMAH IRENE Appellant. Defendant No. DA 11-0779. January on Briefs Submitted April Decided
For Hinderman, General; Helena; Fred Tammy Attorney A. Assistant Valkenburg, County Attorney; M. Shaun R. Van Missoula Donovan, County Attorney; Deputy Missoula. of the Court. Opinion
JUSTICE RICE delivered the (McDonald) appeals judgment Ramah Irene McDonald Court, County, Judicial entered the Fourth District Missoula following a trial a Peace guilty found her Assault on Officer, felony. *2 following McDonald raises the issue: during closing argument Did the constitute error?
PROCEDURAL AND FACTUAL BACKGROUND inmate at County was an the Missoula Detention exchange Center became involved a heated with Detention (Pavalone) Paige disagreement Officer Pavalone over McDonald’s with paper an instruction that she remove from the window cell that of her Hearing conversation, into the obstructed view cell. loud (Lechleitner) Detention Officers Eric Lechleitner and Michael Gauci (Gauci) stepped area. into the The matter escalated when McDonald comply immediately refused with instructions of the officers to security to the report ensued, maximum unit. A physical altercation wherein McDonald Pavalone charged bit on the arm. McDonald was one count felony police with assault on a officer in of violation 45-§ 5-210, MCA.1The trial first resulted in a mistrial when the to reach a unable verdict. 26-27,2011. The case was retried to a on September Pavalone she had McDonald,
testified been bitten and Lechleitner and Gauci yelled testified that being during Pavalone had that she was bitten altercation. Detention Officer Corey Hawkins testified that he observed red mark what appeared with be saliva on Pavalone’s after arm the altercation. McDonald testified she had not bitten Pavalone, inmate, Garding, and Katie another testified that she did not see McDonald Pavalone. prosecutor’s closing arguments bite the following included statements: Paige get said,
Did got Pavalone bit? She she bit... During incident, this time of both Officer Gauci Officer altercation, pending At the time of the McDonald had been detained resolution petition previous felony subjudice of a to revoke a sentence for assault. While the case proceeding, prior McDonald’s sentence in the case was revoked and new McDonald, 259N, sentence was affirmed Court in this me, say-stop biting or whatever. Paige Lechleitner heard think credibility ofthese witnesses... you’re looking at the And as easy thing-for very these officers.... It would have been sure, say I heard her instance, say-oh, Officer Hawkins to similar-but, They making a they didn’t do that. something only they could. It’s you, possibly clear with as real effort to be as even, that, Paige But, you have they remember. with about what this, saying that in the middle and two other officers Pavalone in the my Why world-why in the world said-stop biting arm. she that, to her? say happening she unless that was would fairness, manner, their their at their their appearance, Look in the outcome of candor, intelligence. their What is their interest the officers care about telling you I’m not that none of the case? But, way, way, this out.... their interest in this is how case comes going She’s on way less than the interest this. Defendant’s trial-she’s the one who would be convicted. character and really anything don’t here terms of
We truthfulness. have some conflicts with our statements. This believe, says from one instruction *3 calling could the State one sufficient. This case have been her, you If witness-Paige Pavalone.... believe be end of the case. That’s all the the State would have witness-now, If obligated provide. you been to believe that one can, obviously, provide provided we want to as much we so we But, Ask completely other witnesses. she’s a believable witness. yourselves, not to as deliberate this—what’s believe about testimony? supported by everything.... It’s rebuttal, During stated: ¶6 [Wjhat go through I’d like to do is some of the comments Daly agree Mr. I [defense counsel] made. don’t with overreaction, an that there was too characterization that this is say, personal-has I personally-my much force used-I should don’t consider, you nothing proper to do with this. It’s not even I don’t the evidence shows that there was an but believe I don’t believe their overreaction here officer Pavalone. used. I don’t believethat evidence shows there was excessive force I injured, significantly. Ms. McDonald was the evidence shows fight picked that this was a don’t believe that the evidence shows by Paige Pavalone.
Officer testimony-Mr. Daly says Pavalone’s she couldn’t remember much. any
I don’t think said, there’s flaw in what [Pavalone] that’s significant. certainly, There’s differences. What does that mean? people That means these didn’t rehearse their They’re coming in telling you the truth. story, they’re This isn’t some telling you. They’re telling you they, honestly, what remember. added.) (Emphasis object McDonald’s counsel did not any of these comments. The guilty returned a verdict. McDonald appeals.
STANDARD OF REVIEW
generally
“We
do not
appeal
review on
issues that were not raised
before the district
may
court.
undertake review of such
an issue under the plain error
doctrine
implicate
situations that
defendant’s fundamental
rights
constitutional
failing
when
to review
may
error
result in a manifest miscarriage
justice,
leave
unsettled the question ofthe fundamental fairness of
proceedings,
or compromise the integrity
judicial
process.” State Hayden,
v.
274,
17,
2008 MT
DISCUSSION Did theprosecutor’s during closing argument constitute plain error? Both the Sixth Amendment to the United States Constitution and II,
Article Section 24 of the Montana guarantee Constitution criminal right defendants the to a fair trial jury. Hayden, 27. “A grounds for reversing a conviction and granting a new trial if deprives the conduct the defendant of a fair and impartial .’’Hayden, trial (citing State, Clausell v. *4 1175). 326 Mont. “We consider alleged improper
statements during closing argument in the context of the entire argument.” Makarchuk, 2009 MT ¶ P.3d (citing Roubideaux, 1114). 521, 125 P.3d “Wewill presume prejudice not alleged from the argument misconduct, must show that the rather the defendant Roubideaux, Makarchuk, (citing rights.” his violated substantial ¶ ID- during closing that the argues of her and warrant reversal arguments constitute misconduct argues prosecutor She that the plain under error review. conviction reliability the made direct comments about repeatedly by the used the Specifically, phrases she focuses on witnesses. the highlighted quotation, in the above block to describe prosecutor, truth,” in this “telling you the that “their interest State’s witnesses as this,” Paige way, way than the Defendant’s interest in that way, is less witness,” the completely “a believable Pavalone was relies arguments.2 “did not believe” McDonald’s She prosecutor for reversing on our decision the defendant’s conviction primarily Hayden. misconduct in and reversed the defendant’s We exercised error review Hayden multiple by prosecutor. errors committed conviction asked the Hayden, objection, prosecutor 31-32. Without ¶¶ investigating credibility officer of the witnesses and elicited about credibility they given had impression of statements The Hayden, prosecutor at the time of the crime. 31. “went directly [the officer] [the witness] so far as to ask whether he believed interviewed, telling eliciting response the truth when he was they the truth in their initial statements.” Noting credibility not comment on the witness testimony, held that line of questioning, “[t]his another witness’s credibility other opinion [the officer’s] which elicited on witnesses, unacceptable jury.” and invades the Germain, 28, 27, 336 (citing State v. St. 591). 17, 153 P.3d jury’s by role “impinged The had also on testimony during closing
offering
opinion
his own
as to witnesses’
argument”
argued
when he
that the state’s witnesses were “believable”
rely upon
and that the
the officer’s
“by vouching
efficacy
testified
for the
improperly
also
by
quotation,
As noted in the block
the full text of this rebuttal comment
that there
an overreaction here
was: T don’t believe the evidence shows
there was excessive force used.
Officer Pavalone. I don’t believe their evidence shows
injured, significantly. I don’t
I
that the evidence shows Ms. McDonald was
don’t believe
fight picked
Paige
Pavalone.”
believe that the evidence shows that this was
*5
of the search of Hayden’s
by stating
opinion
residence and
his
scale
in
drugs.” Hayden,
found
the residence was used for
32. We
reasoned that
prosecutor’s arguments
“unfairly
the
had
added the
probative
personal, professional,
force of his own
and officialinfluence
testimony
to the
of the witnesses.”
33. We concluded that
prosecutor’s
conduct had
the
jury,
“invaded
role of the
and ...
danger
created a clear
that the
adopted
prosecutor’s
views
exercising
instead of
their
independent judgment.” Hayden,
own
explained
“[djuring closing
argument,
prosecutor
may
gravity
comment on ‘the
of the crime charged, the volume of
evidence,
witnesses,
credibility of
inferences to be drawn from various
phases
evidence,
legal principles involved,
presented
to be
in
”
Green,
instructions
the jury
....’ State v.
(quoting
Staat,
here was about the instructions, evidence and the rather interjecting than personal opinion. McDonald cites prosecutor’s repeated comment that he “did not case, believe” McDonald’s but the context actually demonstrates he was arguing he “did not believe the evidence shows” that McDonald’s assertions of Pavalone being responsible for fight were supported. McDonald argues that the prosecutor vouched for the State’s witnesses stating “their interest way, way, way this is interest,” less than the Defendant’s but this argument was the model criminal instruction that told the jury to determine whether a witness “worthy was of belief’ by considering “whether the witnesses have an interest in the outcome of any the case or prosecutor’s motive.” The comment about Pavalone being “completely believable” was made in the context of arguing the model testimony instruction that the believed, of one if was any sufficient to prove fact in the Additionally, case. unlike here made no personally effort to testify about the evidence or to elicit witness credibility about the of other witnesses. circumspectly while to choose their words Prosecutors do need isolation, the jury. prosecutor’s Taken in their case to the
arguing and that “completely that Pavalone was believable” comments facial concerns that “telling you the truth” raise State’s witnesses were interject to vouch for the witnesses attempting of the entire when viewed context personal opinion. from the very brief deviations argument, egregious cry and are a far from the approach overall Hayden. conduct of the presume We do not argument and the defendant “must show that the prejudicial, *6 Makarchuk, Further, in rights.” 24. order to
violated substantial ¶ review, whether plain exercise error this Court considers integrity “the of the proceedings” “fundamental fairness of the or an judicial process” is at stake. 17. When issue of ¶ appeal by for prosecutorial properly preserved misconduct has been trial, district way of a motion for mistrial or motion for new court handling has discretion in its ofthe matter. This Court’s review ofsuch Tadewaldt, preserved issues is for abuse ofthat discretion. See State v. (district 9, 208, ruling 237 P.3d court 1273 prosecutorial on motion for mistrial for misconduct reviewed abuse Whitlow, 430, 446, discretion); 949 P.2d Mont. (1997) (district ruling upon court on motion for new trial based discretion). prosecutorial misconduct reviewed for abuse of We are accepting unpreserved plain mindful that an issue of this nature bypasses error review the exercise of discretion the district court Stearns, proper See State v. and our review thereof. (Generally, objection, 195 P.3d an an “[a]bsent appropriate error is not for review.... We will not fault a trial no correct itself if opportunity
court where court has warranted.”). principles, In consideration ofthese conclude that the we challenged closing argument comments made in did not raise the specter necessitating plain the exercise of protect proceeding. error review to fundamental fairness of this Affirmed. ¶18 McGRATH, JUSTICE and BAKER
CHIEF JUSTICES WHEAT concur.
JUSTICE COTTER dissents. Opinion. I dissent from the Court’s notes, As the Court the concern we voiced in was that the prosecutor “unfairly added the force probative personal, of his own professional, official influence to the of the witnesses.” 33. improper We said “that it is for a prosecutor to offer personal opinions as to credibility.” Hayden, witness 28. We cited Stringer, (1995), which said the unequivocal we “Court has been in its admonitions to prosecutors stop improper comments and made it clear that we will reverse a case where counsel jury.” invades the Unfortunately, the Court now abandons this “unequivocal” high ground. I agree with the Court that it improper is not for a prosecutor to
comment on conflicts and contradictions in Opinion, acceptable It is also jurors they to tell the right have a to believe one witness over another. The breach occurs when the attests personally to the veracity of a and tells the whom he personally believes to the truth. This is what occurred in Hayden, leading a unanimous Court to conclude error was established “as the record leaves unsettled question fundamental fairness of the proceedings.” Hayden, 33. The same compelled result is here. Our distinguish Hayden effort to from this unavailing. case is
prosecutor’s comments were replete with his beliefs of who was telling truth. He told the that he did not believe the evidence shows that these overreacted, officers he did not believe the evidence shows force, there was excessive he did not believe the evidence shows that injured. He told jury: “They’re [the coming officers] in and telling the truth.” jury: He told the “[S]he’s [Pavalone] a *7 completely believable witness.” How is this different from which we faulted jury that the social worker and the detective are “believable” and that jury rely on those isn’t, witnesses? It the Court’s strained distinctions notwithstanding. As we said in “[i]t jury, is for the not an attorney trying case, to determine which witnesses are believable and whose testimony is reliable.” In Arlington, 127, 875 (1994), P.2d 307
asked to
exercise
error review after the prosecutor commented
on the credibility
defendant,
of the
among other alleged errors. We
concluded that
the prosecutor did commit error in making such
comments but declined to reverse because the
against
Mont,
Arlington was “overwhelming.” Arlington,
at
at 325.
we observed that had there not been overwhelming
might
in this case
well
Arlington’s guilt,
prosecution
“the
evidence of
reason of the
looking forward to a new trial
Mont,
158,
condoning prosecutor’s repeated this invasion veracity. I reverse and personal opinions with his ofwitness would remand for a new trial.