*1 STATE OF MONTANA, Respondent, Plaintiff and v.
SANDRA JORDAN NEWMAN, Appellant.
Defendant
No. 04-507.
July 13,
Submitted on Briefs
2005.
Decided December
Judicial District, (Newman) County, Ravalli Sandra Jordan Newman was convicted of drug-related four offenses. appeals. We reverse the conviction and remand for a new trial. Four members of this Court agree that Newman’s conviction
should be reversed and that this cause should be remanded for a new trial. There is agreement amongst these members as to the basis reversal, Therefore, however. Justice (joined James C. Nelson Cotter) Justice Patricia O. and Justice W. William Leaphart (joined by Morris) Justice Brian M. each specially and separately concur that this issues, dispositive for a trial. The and remanded new cause be reversed special in each separately will be addressed arguments facts concurrence. for a new trial. reverse and remand
¶3 We specially JUSTICE NELSON concurs. and remand. issues I concur in our decision to reverse
appeal are: of adhere to the Montana Rules appellate 1. Does brief
¶5 Newman’s Procedure? Appellate pursuant this Court review Newman’s claims 2. Should
¶6 plain of error doctrine review? Newman of afair closing argument deprive Did
¶7 trial? AND
FACTUAL PROCEDURAL BACKGROUND Stevensville, in her in In June of resided house ¶8 Newman Mike, brother, Randy children, Amber and and her along with her two (Jordan). Miranda, living girl Also at the house was a named Jordan Adler, by the who one of Amber’s friends. Arthur who went was “Butch,” lived at He was previously nickname had house. passed away May he in of 2003. boyfriend, Newman’s and investigation regarding burglary a in an a suspect ¶9 Jordan became investigation, in to this law at Ace Stevensville. Pursuant Hardware house on enforcement officers executed search warrant on Newman’s County the Ravalli Burlingham, June 2003. Detective Scott of Office, who house. among Sheriffs officers searched the During search, bag marijuana. stopped his he found a He then discovery. on this search and for another search warrant based applied warrant, Burlingham securing After the additional Detective search, drug marijuana. more finding paraphernalia continued the search, charged with As result of Newman was criminal dangerous dangerous drugs, possession criminal distribution of dangerous drugs with intent drugs, possession criminal distribute, drug paraphernalia. and criminal possession house, After enforcement officers the search of Newman’s law in. riding in he marijuana found the car was apprehended Jordan and drugs house that all the at Newman’s initially Jordan admitted agreement belonged subsequently he reached him. testify against agreed he Newman whereby State thirty-year to recommend exchange promise for the State’s to this Pursuant prosecution. his criminal suspended sentence agreement, marijuana Jordan testified that the at Newman’s house belonged her, and that marijuana frequently. she sold Harold and Mary Rice, Jane neighbors, testified people would come go frequently, they from Newman’s house but admitted that did any drug not observe transactions. Newman that heavy testified traffic at her home visiting consisted of her friends who were out of concern well-being for her Arthur subsequent to death. Adler’s During closing argument, the State’s prosecutor repeatedly criticized for her to call Newman failure witnesses to her corroborate testimony. did objection Newman’s counsel not raise an these guilty comments. Newman was found charges all four and was subsequently sentenced. Newman now appeals, arguing that prosecutor’s closing argument amounted to misconduct which denied argues her a fair Newman trial. also that her trial counsel rendered ineffective assistance.
DISCUSSION appellate 1. Does Newman’s adhere to the Montana brief Appellate Rules Procedure? argues The State has failed adhere to Rule 23(a)(4), M.R.App.P., asserting of prosecutorial claim *3 argument misconduct. Specifically, points the State to the section of brief, Newman’s and contends that Newman failed to cite the trial has transcript prosecutor’s closing for the contested of portions the argument. result, asserts, As a the State this Court is to “required transcript Thus, the to alleged quotes.” scour find the the State contends that we should refuse to address arguments Newman’s regarding transcript. cite to prosecutorial misconduct failure to the 23(a)(3), an M.R.App.P., requires appellant’s Rule that brief of contain statement the facts which includes citations to the record. 23(a)(4), Rule that M.R.App.P., requires argument the section of appellant’s contain on. pages brief citations of record relied The statement of facts in brief contains a Newman’s verbatim closing recitation of the contested of the portions prosecutor’s argument, accompanied by the corresponding accurate citations to argument in the trial The brief pages transcript. section Newman’s excerpts, refers to these same but does not cite to transcript argument in instance. section of transcript each While Newman’s transcript been more clear slightly brief could have with additional find citations, certainly are not to required transcript we “scour such, As that conclude as the State asserts. alleged quotes,” 23(a)(4), M.R.App.P. requirement of Rule has satisfied Newman claims pursuant review Newman’s this Court Should error review? plain the doctrine of argument amounted closing thatthe argues process her a fair trial and due denied
to misconduct which undermining the right innocent and presumed to be violating beyond charged element of the offenses every prove State’s burden object failure to Acknowledging her trial counsel’s a reasonable doubt. requests argument, Newman closing to the prosecutor’s appeal. plain doctrine of error review her contentions employ the inappropriate because argues plain error review State by the record. As discussed supported claims are not are, hereinafter, fact, supported in I conclude that Newman’s claims by the record. timely object alleged impropriety to an Typically, the failure to reviewing this Court from the issue on precludes
the district court 46-20-104(2), However, doctrine MCA. the common law appeal. Section provides may, error this Court certain plain review circumstances, alleged no review claim of error even where objection in the district court. State v. contemporaneous was made (overruled (1996), 126, 137, 915 208, 215 Finley part 39, Gallagher, grounds by on other State v. 21). 21, 19 P.3d As we have held: may discretionarily claimed errors that
[T]his Court review a criminal defendant’s fundamental constitutional implicate contemporaneous objection if no is made and rights, even 46-20-701(2), MCA, notwithstanding inapplicability of the § may criteria, the claimed error at issue failing where review may miscarriage justice, in a manifest leave unsettled result trial or fundamental fairness question may integrity judicial proceedings, compromise or process.
Finley,
Plain error
is rooted
errors implicate Newman her fundamental constitutional right process to due under the Fourteenth Amendment the United Constitution, II, States and Article Section of the Montana Further, errors, Constitution. I conclude these alleged if left Court, by this would bring question unaddressed into the fundamental Accordingly, plain fairness of Newman’s trial. I conclude that error appropriate review is in this case. prosecutor’s argument 3. Did the closing deprive Newman trial? fair As noted above, argues the prosecutor’s closing Newman
argument amounted misconduct a fair which denied her trial and due her process violating right presumed to be innocent and undermining every prove charged State’s burden to element beyond a argues offenses reasonable doubt. also that she denied a trial prosecutor fair when the commented on matters not in In response, evidence. the State contends that the did prosecutor specifically say Newman was responsible establishing innocence, properly explained instructions argues prosecutor’s innocence. State also that the appropriate merely comments were because he commented on the whole, suggested evidence as inferences which could be drawn Finally, argues therefrom. the State that Newman has failed to prejudice resulting demonstrate from the comments. process to afford under guaranteed order a defendant due Constitution, both the United States and the Montana Constitution prove every charged beyond State must element of a offense
165 212, 24, McCaslin, 322 Mont. v. doubt. State reasonable 722, proof closely of is related 350, 24, 24. This burden 96 P.3d 46-16-204, MCA, innocence, by § as demonstrated presumption the of presumed in a criminal action is provides “[a] defendant which and in case of a reasonable contrary proved, until the is innocent be shown, satisfactorily guilt the defendant’s is doubt the whether guilty.” must be found not defendant acknowledged have the close relation between prior holdings Our consistently recognized the and have legal principles,
these two innocence of a criminal component of as an essential presumption 291, 3, 5, 292, (1901), In v. 26 Mont. 66 P. State Howell prosecution. this Court stated that a criminal defendant always
is entitled to have the take into consideration the law him. . . presumption of innocence which the throws about . every stage the This comes to the aid of defendant at presumption case, only finally by of is and overturned the rebutted establishing every charged of crime to the evidence element jury beyond satisfaction of the a reasonable doubt. (1903), 273, 279,
Similarly, in State v. Martin 29 Mont. P. presumption this Court that the of innocence said safeguard persons is the law casts around all accused which crime, cannot by of the defendant be reached a verdict of guilty safeguard entirely until is removal can this removed. This minds of the only accomplished by be evidence which satisfies the jurors beyond presumption innocence a reasonable doubt. of very thing against prosecution is in effect the which the is directed. 338, 341, (1951), 104, 109, 232
Again, in State v. Gilbert
P.2d
of
“presumption
this Court stated that
innocence surrounds
every step
at
trial and to its
he is entitled in
defendant
benefits
every
jury.”
the determination of
fact
(1979),
111, 112,
v.
184 Mont.
601 P.2d
State Williams
Court
the issue whether the trial court’s refusal
this
addressed
of
give
presumption
of
requested
the defendant’s
instruction on
right
in a
of
to a fair trial as secured
innocence resulted
violation
his
and the
guarantee
of the United States Constitution
process
due
presumption
of innocence
Acknowledging
Montana Constitution.
law,
element
criminal
this Court held
“even
as
foundational
of
proof
though
instructed as to the burden
properly
is
he
the defendant
still
beyond
doubt,
requests,
when
so
a reasonable
which
to the
of innocence
entitled to an instruction as
Williams,
exists in
his favor.”
State’s the the the to jury: is, very interesting yourself
What I think is ask who did notwe every hear from. The Defendant had to opportunity present present, whatever she wanted to and who did not hear from? we Amber, did daughter. We did not hear from not hear from We Mike, Miranda, her son. We not hear other who girl did from the Garcia, for years. George lived there the last three we didn’t hear George from Did in Doug Garcia. we hear from Drummond? Doug. from Didn’t hear said, course, traffic there lot of after Butch died
She was a they me. ... because were so concerned for say, are so concerned friends now to I wasn’t [W]here ... those I’d it’s buying drugs? any suggest [sic]. hear from of that We didn’t they’ve the The Defendant is not there coop. because flown They’re who she people friends. anymore. These aren’t concerned supplying. have any those could people knew that one of ... The Defendant got I in say, yeah, here to .... could have been been there Amber They’re but, drugs. drugs, man, my mom never does trouble for they not say They’re it. here because they not can’t here because the truth. testify way in that and tell can’t come and that, case the I we have laid out a for If look at all think charged.... that four crimes were you Randy lying when say, Uncle
Where was Amber my light up whenever says [sic] we sat around with Mends Probably that red happened. mom that’s what did. Because bong sitting up. in front the detectives showed the room when at As of innocence “surrounds the defendant the Gilbert, 109, 232 trial,” at every step liberty presumption during not at prosecutor was undermine prosecutor stage closing argument. used State’s failing to present criticize for proceeding repeatedly testimony. prosecutor Additionally, to corroborate her witnesses verdict, rendering stating this failure asked consider “[t]hey’re they testify way here can’t in and because come that, all tell the If we look at think we have laid out case truth. crimes charged.” four were arguments suggested guilt could be These This determined, failure to call witnesses. part, based Newman’s directly of innocence. suggestion contravened *7 Further, merit for her by asserting that Newman’s defense lacked witnesses, that prosecutor’s suggested to the comments failure call obligation suggestion This also present Newman had some to evidence. innocence, of directly presumption pursuant contravened the to which any Moreover, the prove no to facts. absolutely obligation Newman had jury’s attention from the argument improperly shifted the prosecutor’s to the lack of affirmative evidence State’s substantive evidence of presumption This further undermined the by Newman. presented the mind of proof the burden of innocence and diminished State’s argument seriously. any juror took this who closing argument which portion of same of presumption right constitutional undermined Newman’s to it contained references innocence, improper also because was a improper for We have held that is matters not evidence. prosecutor to comment on evidence not of during record closing Gladue, 14, argument. 1, State v. 1999 MT ¶ ¶ Here, prosecutor 14. asserted that some family acquaintances and members knowledge relevant to the case not at the they were trial because had coop” “flown the or could testify truthfully. However, not there no regarding was evidence willingness trial, these individuals to at appear and no evidence their regarding willingness testify truthfully. Berger (1935), v. United States 295 U.S. S.Ct.
L.Ed. the United Court Supreme special States discussed the responsibility prosecutor of a and the potentially resulting harm from improper prosecutorial efforts. The Court stated: [a prosecutor] may blows,
[W]hile strike hard not liberty he is foul duty to strike ones. It as much his from improper refrain produce wrongful methods calculated to a as it conviction is to use every legitimate a bring just means about one. is fair say average jury,
It
that the
greater
or less
degree,
obligations,
has confidence that
plainly
these
which so
upon
prosecuting
faithfully
rest
will be
attorney,
observed.
Consequently,
and,
improper suggestions, insinuations
especially,
personal knowledge
apt
assertions of
much
carry
weight
are
against the
when they
properly carry
accused
should
none.
Berger,
prosecutor aggressively jury disregard innocence, thereby creating she risk that would be prosecutor explicitly fact that did not convicted on basis. The responsible establishing state her innocence does improper argument. proper jury not the effect Nor do alleviate prosecutorial cure simply instructions such an error. can excuse a *8 constitutional a fundamental forcefully contravenes argument that so protection. a fair trial I that Newman was denied Accordingly, conclude effectively undermined her closing argument prosecutor’s the
because by the innocence as secured right presumption constitutional guarantee of the Montana Constitution. process due said, that “the Justice Warner’s contention being That I address presumption in not at all aimed at the arguments question were innocence,” credibility.” My opinion on but were “an attack Newman’s they appear transcript-the as in is based on the words the prosecutor’s dissent, however, The resorts to spoken jury. the words which were prosecutor’s intent, spinning closing' the the speculation about constitutionally swipe at argument as a harmless Newman’s discern accurately if a credibility. possible even it were comments, I could hold that pure prosecutor’s motive behind the Regardless problem cure here. it would the serious constitutional comments, prosecutor they struck at the where the “aimed” with these protection. very pure heart of a fundamental constitutional No motive Thus, remedy a I can serve to such violation. focus on the actual words used. I the that I exception take dissent’s baseless accusation have prosecutor’s Perhaps charge
taken the comments “out of context.” my inject transcript from speculation results refusal with course, I regarding the motives. Of have focused on the prosecutor’s they comments in the context in which were entirety of the contested full, Further, arguments and closing used. have reviewed Indeed, it is light considered of the trial as a whole. the dissent them way context-by speculation-which supports supplies Moreover, different I can not envision context that would conclusion. prosecutor, jury may justify suggestion, by as was made legitimately present failure to witnesses as a consider a defendant’s contrary to the against absolutely strike him or her. This notion is presumption of innocence. leads me to note that the dissent’s My consideration of context recognized fact that Newman’s counsel
position is undermined comments prosecutor’s as an attack on the notes, innocence, closing. As the dissent responded accordingly prosecutor’s comments counsel restated immediately of innocence. responded explaining which defense Hence, recognizing impropriety I am the same simply recognized during closing. counsel goes suggest dissent even if innocence,
comments were an attack on the presumption of
defense
argument,
counsel’s closing
together
the instructions
*9
regarding the
of proof,
State’s burden
a
provide
would
sufficient
remedial
I
agree.
position
effect. can not
To take
a
such
would allow
juries
to
subjected
conflicting messages
regarding
be
to
the
This,
turn,
in
innocence.
force
beg
would
defendants to
jury
rely
the
to
the
on
instructions
than
prosecutor’s
rather
the
course,
arguments. Of
struggle
defendants should
have
not
to
for the
right
presumed
won,
to be
That fight
waged,
innocent.
long
was
Estelle,
ago.
at
said,
U.S.
proper prosecution for the to comment on conflicts and contradictions testimony, in as as well to comment on evidence presented suggest may inferences Gladue, which be drawn therefrom. However, suggestion the prosecutor’s present that someone not might say at trial something contradiction Newman’s testimony simply qualify does not as a comment on or conflicts contradictions in testimony. suggestion Nor was this a comment on the evidence presented. Rather, was a presented it comment on evidence not such, trial. As I do not find this precedent applicable. Finally, limiting concern use of plain share dissent’s However, employ
error review. this Court must be mindful to similar alleged concern evaluating level of constitutional violations. prosecutor’s argument Justice Rice’s dissent maintains that the comment merely regarding other failure to testify. individuals’ prosecutor’s Consequently, acceptable dissent finds the comments Rodarte, under State v. 2002 MT prosecution point
wherein we stated that “the out facts permitted by persons other than the at issue which could have been controverted Rodarte, defendant, portion 14. The short but were not.” arguably could be argument quotes which the dissent if in isolation. acceptable considered under Rodarte viewed viewing prosecutor’s arguments I find Rodarte irrelevant when entirety. their analysis ignores of the trial pertinent parts The dissent’s First,
transcript. ignores prosecutor repeatedly the fact that failing criticized to call witnesses personally testimony. prosecutor argued her Newman “knew that corroborate any there,” people every one of those could have been that she “had wanted,” opportunity present whatever she and that she present nonetheless failed to numerous witnesses who could have testimony. Second, analysis ignores corroborated dissent’s fact that prosecutor proceeded then to ask the to consider verdict, failure to call such in rendering stating witnesses that, “[i]f we look at all I think laid out a we have case for the four charged.” crimes that were arguments placed These unwarranted *10 squarely failing Thus, blame on Newman for I present witnesses. can agree merely testimony that this was an attack on Newman’s upon persons testify or an attack “the failure of who could have evidence,” controverted State’s as the dissent asserts. The holding only of Rodarte can be if decisive this case we
ignore significant portions prosecutor’s closing of the I argument, and I expand will not do so. Nor would Rodarte so as to condone the prosecutorial argument rule, at issue plain here. Rodarte its terms, simply give prosecutors suggest does not license to a jury a defendant duty has some to call witnesses to corroborate his or her testimony. Nor can Rodarte allowing be construed as a rule prosecutors to a jury ask to consider such a failure as evidence adverse ato defendant. part As analysis, its the dissent asserts that “had not
relied upon presumption of innocence-she had instead affirmatively offered an alternate explanation of the State’s evidence.” respond I must proffers this statement because the dissent it in a way suggests testify which that a defendant’s decision to has some bearing provided by on the of innocence. protection presumption Particularly, suggests presumption it that the of innocence somehow Further, “rely” upon had less force here because Newman did not it. it the full suggests maintaining that Newman had to choose between hand, testifying on one her own presumption benefit the other hand. defense on course, only as to “relied” speculate Of we can whether Newman But if she and her counsel presumption
on the
of innocence.
even
completely disregarded
presumption,
upon
its constraints
any
stringent.
prosecution
thereby
were not
rendered
less
While
significance
testify,
to Newman’s decision to
it
dissent attaches some
authority for the notion that
this fact should have some
cites no
innocence.
bearing
analysis regarding
presumption
on the
notion,
presumption
reject this
as
is well established
only by
beyond
every
a reasonable doubt of
element of
proof
overcome
46-16-204, MCA; Howell,
Section
charged
offense.
292; Martin,
Thus,
nothing
at 727.
there is
P. at
to the Any knowledge may possess the dissent judge purposes.” for his own thought pure at trial is based on regarding process defense counsel's Court, by this as the record properly and is not considered speculation Moreover, even if it were nothing regard. us discloses in this before motives, the dissent accurately divine defense counsel’s possible improper an intent authority that such proposition cites no of innocence. analysis regarding impact should
CONCLUSION her trial counsel conclusion, I note that Newman claims object he failed to ineffective assistance when provided accomplice jury argument and failed to offer closing issue, I will not already dispositive discussed the Having instruction. accomplice request proper can arguments. address these Counsel consulting doing from so after in the trial or refrain instruction new *11 with Newman. closing argument deprived that the Having concluded and remand trial, I in our decision to reverse a fair concur
Newman of trial. for new of JUSTICE concurrence joins special in the
JUSTICE COTTER NELSON. concurs. specially LEAPHART
JUSTICE
173 due to defense counsel’s ineffective reverse the conviction would accomplice jury pursuant an instruction failing request assistance in 26-1-303(4), MCA. to § 26-1-303(4), MCA, that, the court requires proper, when Section legally testimony person that “the of a
must instruct ought with for the acts of the accused be viewed accountable apply does not argues provision distrust.” The State accomplice. Jordan did not act as an Section Newman’s case because 45-2-302(3), MCA, legally “[a] is accountable for the person states during either before or the commission of an conduct of another when commission, or facilitate such he purpose promote offense with the solicits, aids, abets, in the agrees, attempts person or to aid such other addition, of the In this Court defines planning or commission offense.” knowingly, voluntarily [as] true one who and with accomplice “[a] principal common intent with the offender unites the commission of may an accomplice being present a crime .... One become and act, joining by aiding abetting in the criminal another in its (1984), 513, 517, commission.” State v. Nordahl 208 Mont. 679 P.2d (citations omitted). 241, 243 selling drugs Jordan lived with Newman and testified to on her Initially, drugs belonged him;
behalf. Jordan even claimed all the story change cutting testify he did not until a deal the State to against exchange suspended knowingly Newman for a sentence. behalf, selling drugs statutory on Newman’s Jordan satisfies the legally definition of “a accountable” and this Court’s definition person of an “accomplice.” argues that she received ineffective assistance because failed “A request accomplice counsel instruction. (1)
criminal defendant is denied effective assistance counsel if: his range reasonably light conduct falls short of the demanded in counsel’s (2) Constitution; the United Sixth Amendment of States Rose, 342, 12, failure State v. 1998 MT 292 prejudicial.” counsel’s is ¶ (citations omitted). 12, See also ¶ (1984), Washington Strickland v. 466 U.S. 104 S.Ct. “requires L.Ed.2d 674. The Strickland test the defendant to establish that, errors, the result of prejudice by demonstrating but counsel’s A proceeding probability would have different. reasonable been outcome, confidence in the but it probability sufficient to undermine that he would have require does not that a defendant demonstrate 6, 25, 2004 MT acquitted.” Kougl, been State v. omitted). and citations (quotations *12 examining Before an ineffective assistance of counsel claim on appeal, generally direct look to the record to see whether we can alleged. Kougl, “why’ perform answer counsel did or did not as 14. ¶ If “why,” appeal. If we can answer we will address the issue on record, to address claim is based on matters outside the we will refuse to file a appeal postconviction the issue on and allow the defendant 14; Grixti, proceeding. Kougl, State v. ¶ ¶ “Sometimes, however, 330, 27, 124 unnecessary it is 27. ¶ ‘why example, to ask in the first instance”-for “when counsel is faced non-tactical, In obligatory, Kougl, an and therefore action.” 15. with case, ‘why is but counsel acted.” question such a “the not ‘whether’ circumstances my view, qualify In of Newman’s trial Kougl, testimony relied on from prosecution primarily as such a case. brother, Jordan, Randy Initially, charged at trial. the State police after possession dangerous drugs Jordan criminal of with all ownership home and Jordan claimed searched Newman’s trial, however, Jordan, thirty drugs looking uncovered. Before the testify against exchange years prison, agreed J testified thirty years probation. agreement, Pursuant to this ordan Newman, that marijuana belonged that the in Newman’s house she A drugs and that he too sold on her behalf. marijuana frequently, sold explanation why trial no as to defense provides review of the record regard to accomplice jury did not ask for an instruction with counsel testimony to the of Jordan’s testimony. importance Jordan’s Given testifying case, significant he received State’s and the benefit whether counsel sister, question the more is against appropriate his conduct, complicity in Newman’s light alleged acted. In of Jordan’s that the obligation request the instruction defense counsel had an accomplice testimony suspicion. with jury view Jordan’s reasons, If, such an instruction would for tactical counsel believes In position.1 of that counsel should make record inappropriate, be the record or a being apparent reason strategic absence of a declining specifically counsel on the record from defense statement 26-1-303(4), MCA, instruction, language requires such an § accused, accomplice an purports to have been when a witness instruction. request accomplice must effective defense counsel why normally required he Although to make a record defense counsel is not particular instruction, procedure logical jury requesting such a is when or she is not defendant, statutorily required “appropriate” instruction, protecting aimed at 26-1-303, Section MCA. circumstances. is, here-that whether presented the same issue Kougl we faced to view an that the be instructed failure to ask defense counsel’s constituted ineffective testimony suspicion accomplice’s against case held that since the State’s of counsel. We assistance credibility accomplices, of three largely on the defendant was based at the heart of the State’s to use the law to strike “trial counsel failed 20. In Kougl, instruction. requesting accomplice case” failure, Kougl prejudice “because the light experienced of this conveyed jurors the law instructions would have commanded crucial evidence with distrust them to view the State’s *13 at they would have arrived probability such that there is a reasonable “trial Kougl, 26. We concluded that counsel a different outcome.” ¶ asking for instructions on explanation could no for not plausible have deficient, testimony,” performance and therefore was accomplice Kougl, the first of the Strickland test. 24. In satisfying prong ¶ addition, him not Kougl’s we noted that trial counsel further failed testimony an instruction that such must be corroborated requesting 46-16-213, corroborating need not pursuant MCA. “The evidence § situation, suspicion in it must raise more than a be robust such but in, commit, opportunity of the defendant’s involvement or the crime (citations omitted). charged.” Kougl, 21¶ Kougl distinguished It should noted that in State v. Johnson be
(1993), 496, 499, involving 257 Mont. a case the same incorrectly request jury issue: counsel failed to instruction whether accomplice testimony must viewed with distrust. We providing be he Kougl determined in that because “Johnson claimed that crime, asking jury at the his accuser as an scene of the ... view defense”; thus we held that a record- ‘accomplice’would contradict did not ask for an justification why based existed for Johnson’s counsel testimony, no such record-based accomplice instruction on whereas Johnson, justification Kougl. Kougl, (citing in 257 existed 499). clarify I need to the Johnson 848 P.2d at think we inappropriate is when accomplice rationale. To hold that an instruction innocence illogical. Because instructions a defendant maintains his trial occurs unless the defendant only play come into at trial and no rationale, innocence, accomplice an maintains his under the Johnson strategically appropriate, as would instruction would never be innocence. The unwritten always contradict the assertion accomplice an requests in that a defendant who assumption Johnson is a criminal act in concert with having instruction admits to committed view, however, an accomplice2 my requesting accomplice position in fact a defendant’s of innocence supports instruction of a directing the to view with distrust accusations witness in purports qualify who to have acted concert. would therefore 26-1-303(4), MCA, require, pursuant Johnson rationale § accomplice, to have been an defense counsel purports when witness that, instruction or state on the record request accomplice must an reasons, given; tactical the defendant does not want the instruction MCA, that, 26-1-303, given counsel must make a record the words of § testimony, “proper the case at hand is not a occasion” for such an Hall, instruction. State v. case, testimony that he regard helped With to this Jordan’s drugs person “legally sell him as a accountable for qualified 26-1-303(4), MCA.
the acts of the accused.” Section Given Newman, trial counsel testimony convicting of Jordan’s importance directing the obligation request accomplice had an instruction testimony If the had received jury to view Jordan’s with distrust. instruction, corroborating directed to find such an as well as been probability it testimony, evidence for Jordan’s there is a reasonable guilty a not verdict. In accord with our decision would have returned advantage the trial counsel’s Kougl, I can discern no tactical accountability jury instructions. request appropriate failure to and remand for a new trial. I would reverse the conviction JUSTICE joins specially MORRIS concurrence of JUSTICE *14 LEAPHART. dissenting.
JUSTICE RICE this matter for the reasons stated Justice Nelson’s Reversal of system. the unnecessary legal and condones abuse of opinion is dissent. Rodarte, we In State v. and closing argument scope prosecutor’s of a permissible
addressed held: the failure to comment on improper prosecution it is for the
While behalf, prosecution testify on his own of a defendant have been which could point out facts issue permitted defendant, not. but were other than persons controverted of an couched in terms the instruction is This concern assumes is, however, offending “accomplice” in the term “accomplice.” no need to use the There “accomplice.” Notably, the term statute at issue does not use instruction. 26-1-303(4), “legally MCA. Rather, speaks person Section of a accountable.” it terms Here, notwithstanding perception, defense counsel’s Rodarte, testify, failure to but on the did not comment prosecutor Defendants testify. other than the defendant” “persons the failure of rather the context of the understood when This distinction is further had offered prosecutor comments is considered. prosecutor’s support home in to and from Defendant’s of the traffic evidence evidence, the Defendant charges. To defeat drug distribution who made well-wishers frequent that these visits were testified Thus, the in her time of bereavement. support her giving were innocence-she had her upon Defendant had not relied of the State’s affirmatively explanation offered an alternate instead prosecutor defense which the proffered evidence. It was this of those in Defendant’s upon, including commented the failure the State’s facts: household to controvert Amber, daughter. did not hear from did not hear from We
We Miranda, Mike, girl from the other her son. We did not hear who Garcia, years. George didn’t hear lived there for the last three Doug hear from in Drummond? George from Garcia. Did we Doug. [Emphasis added.] Didn’t hear from Thus, arguably, prosecutor’s upon attack was not made innocence, upon Defendant’s but the defense and offered, testimony affirmatively Defendant had and the which the testify the State’s persons failure of who could have controverted evidence. exercising plain impropriety These circumstances illustrate object
error in this case. Defense counsel elected not to review closing prosecutor’s for a reason: so he could use the prosecutor’s Thus, against during closing argument. comments the State his own during closing, objection would quiet he sat when attention, immediately brought judge’s the matter to the have by raising State’s case the issue in sought instead to discredit the worked, closing. acquitted, If it and the had this case would have us. would not be before failed, to have her cake and and now Defendant wants manipulations such
eat it too. This Court should not countenance addressed system. judge The trial could well have legal abuse of the time, counsel’s choiceto take at the but it was defense problem When a defendant judge purposes. issue from the for his own error, challenge then the error on in trial he cannot participates in error for an action which a district court appeal. put “Wewill State v. actively participated.” or appealing party acquiesced *15 178 32, 32,
Harris, 397, 881, 1999 MT 294 983 Mont. P.2d 32 ¶ ¶ ¶ Clay, 147, 24, (citing State v. 291 Mont. 967 P.2d ¶ ¶ 24). 370, is criticized “pure speculation.” This dissent as based on See 46. contrary, speculate
To the we need not that the defense counsel was in aware of of innocence issue-counsel used the issue closing. speculate his We need not that defense counsel decided not to object closing-the clearly record that prosecution’s demonstrates objection speculate no was made. We need not that defense counsel attempt persuade jury acquit used the issue to clearly defendant-the record illustrates this as well. This issue was not properly preserved appeal because defense counsel chose instead Indeed, gamble only why plain with it at trial. need ask error in review should be exercised in a situation which the error is not but, rather, clearly for its “plain,” where defense used issue consequences at trial and seeks to avoid the of that purposes own now appeal. decision on Leaphart’s concurring opinion, now turn to Justice which appropriate
concludes that reversal is
because “defense counsel had an
obligation
jury
the instruction that
view Jordan’s
request
testimony
53.
accomplice
suspicion.”
with
26-1-303,
added),
(emphasis
provides
“jury
Section
MCA
that the
that
proper
is to be instructed
the court on all
occasions”
testimony
legally
of “a
accountable for the acts of the accused”
person
(1993),
distrust.
held in State v. Johnson
is to be viewed with
We
157, 848
wording of the statute does not
plain
that the
instruction
given
every
involving
case
an
require this
be
contrary holding in State v. Laubach
accomplice, and overruled the
(1982),
conflicting
the statute.
as
162-63,
Johnson,
recently explained
[I]n Johnson there was a record-based
testimony. Johnson claimed
accomplice
for an instruction on
crime,
asking
to view
at the scene of the
he was not
defense.
as an
would contradict
“accomplice”
his accuser
Therefore,
there was
Johnson,
Mont. at
Kougl, *16 accomplice an instruction failing request for plausible explanation” and case, Johnson distinguished in that under the evidence Kougl, 27. Kougl’s conviction. ¶¶ reversed Johnson, that we revisit suggests concurring opinion The instruction “illogical,” accomplice “an believing its rationale because always contradict strategically as would appropriate, be would never to trial. 56. goes a defendant who ¶ of innocence” the assertion rule why the Johnson However, this case illustrates well I believe why the statute does retained, and that there is clear reason should be given in all such cases. require not the instruction to be the same First, charged and Jordan not with Newman were concurring opinion points to Jordan’s offenses at the time of trial. drugs in an effort to link testimony helped that he Newman sell against for criminal distribution of charges Jordan to the drugs and with intent to distribute. dangerous drugs possession theft, drug possession, possession charged Jordan was with aggravated burglary, and none of which drug paraphernalia Thus, drugs. of or the intent to distribute involved distribution charges filed accomplices by respective not virtue of parties were against them. Second, critically, more is the evidence. The sum total and concurring opinion and the testimony upon
Jordan’s which Newman drugs,” rely “helped for the that Jordan Newman sell proposition ¶ following: consists of you selling drugs? And
Defense Counsel: were for her. No, really, Maybe I don’t think. once or twice Jordan: comment an brief, support is insufficient ambiguous This for the acts of the “legally that Jordan is accountable assertion 26-1-303(4), Contrary MCA. to Newman’s accused.” Section or, at characterization, any drugs, that he did not sell Jordan testified had, different this case is best, he was not sure. How “maybe” but Loney, agreed are Kougl, parties “[t]he where we noted that from 20, and, Kougl, Pool, accomplices” Kougl, ¶ and Fassler were Kougl, that conclusion. indeed, overwhelmingly supported the evidence that cover is entitled to instructions “[A] 8. criminal defendant Beavers, State v. theory having support in the evidence.” every issue or 340, 23,987 Obviously, 260, 23,296 1999 MT an forced to bear a defendant cannot be is not true: converse by the evidence. supported is not instruction which Thirdly, a legitimate, strategic component there is to the giving, thus, requesting, Here, of this instruction. accomplice appear instruction would to have completely been inconsistent with testified, was, theory Newman’s defense. She and her that the drugs paraphernalia hers, seized in the house were not and that Jordan’s testimony drugs about her sale of was false: your testimony
Defense Counsel: ... So it’s drug none of this paraphernalia yours; is that correct?
Newman: That is correct. drugs
Defense Counsel: What about the themselves? No, sir, they
Newman: are not mine. you using drugs Defense Counsel: Were those or selling those drugs, you or did participate people selling with other those drugs money? No, drugs.
Newman: I have never sold *17 Now, you’ve Randy testimony [Jordan]’s Defense Counsel: heard you that he said he sell drugs people coming saw into the you house or that would drive somewhere locations and sell drugs; you’ve testimony? heard that Yes, I Newman: have.
Defense Counsel: Is that true? No,
Newman: it is not. you go anywhere Defense Did ever [Jordan] Counsel: to sell - drugs or No, Newman: sir. testimony theory, Given this and Newman’s it would have been
supreme incongruence for Newman to ask that the be instructed testimony being legally to view Jordan’s with distrust for accountable adamantly for acts claimed which Newman never occurred. Unlike the Kougl, legitimate strategic record in the evidence here presented Alternatively, reason for the instruction. declining request trial requested accomplice counsel could have However, purposes attacking testimony. instruction for of Jordan’s required taking that decision would have a risk-that would argument that Jordan recognize incongruence between Newman’s had accomplice theory “[I]t was an and her that the acts not occurred. give accountability upon [based instruction 26-1- proper § is not 303(4), it is the evidence and is supported MCA] where Hall, inconsistent with the claim innocence.” State v. defendant’s 239, (emphasis MT 77 P.3d 30 2003 ¶ ¶ ¶ added). second-guess “[W]e counsel. cannot strategy, On matters tactical ... in counsel’s of counsel find ineffective assistance will not 158, 25, State, v. decisions.” Weaver 1039, 25. 114 P.3d that an “[t]o hold statement concurring opinion’s maintains a defendant when inappropriate is
accomplice instruction 56) (¶ correct when viewed may be illogical” innocence is his fully circumscribe law. does not the statement isolation. is cases, accomplice instruction and our Under the statute theory or the particular inconsistent with when inappropriate In his claim of innocence. support presents a defendant evidence In a tactical matter. cases, the instruction becomes requesting those decision, and no room for a tactical Kougl, presented the case as left Here, was true. opposite appropriate. the instruction was I affirm. would JUSTICE WARNER dissents. decision to remand dissent from the Court’s respectfully concerning of Justice Rice agree trial. I with the dissent
case for new commencing Relating at concurring opinion Leaphart’s Justice closing my it takes the opinion, view to Justice Nelson’s context, erroneously on to undertake argument goes out of and then the case to reach its conclusions. plain error review of review, error considering appropriateness plain the failure to lightly do not excuse ignores principle Court that we review plain utilize error contemporaneous objection raise a but at 215. The Court Finley, Mont. at sparingly. failure to by stating that a plain use of error review justifies its prosecution alleged closing argument improper address the trial. the fundamental fairness Newman’s bring question into would proper error review is utilizing plain held that While this Court has unsettled the “may claimed error leave a failure to review the when trial,” Finley, 276 Mont. of the fundamental fairness question *18 present trial in the case 215,1 agree that the 137, 915 P.2d at cannot fundamentally unfair. was artfully comments more could have been prosecution’s the While not at question were arguments shows the
phrased, transcript the attack on They were an of innocence. all aimed at the Thus, the the trial. credibility. testified Newman Newman’s credibility. have We comment on properly could prosecution on conflicts “to comment prosecution it for the previously proper found to comment on evidence testimony, as well as and contradictions presented suggest jury may and to the inferences which be drawn Daniels, 331, 26, therefrom.” State v. 2003 MT Gladue, 14-15, 77 P.3d (quoting State v. ¶¶ 14-15). 14-15, The prosecution’s ¶¶ ¶¶ credible, argument was that Newman’s version of events was not and implied Newman’s failure to call certain witnesses that her version of such, context, events was not credible. As when taken in prosecution’s closing improper. was not assuming, arguendo, Even that the prosecution’s closing was an innocence, not, attack on which it was Newman has any resulting prejudice. previously failed to establish This Court has demonstrate, held that the burden is on the defendant to from record, improper prosecution prejudiced that comments right Gladue, defendant’s to a fair and trial. impartial case, present object while failed Newman’s counsel prosecution’s closing, clearly he out to the pointed innocent presumed obligation present any had no argued: witnesses. He
Mr. Fulbright prosecutor] brought up [the where are the other witnesses, Amber, people where is where are these that come to if they supporting you house were them. If remember one thing Rices, testified that they they about both never saw anyone using drugs they any drug at the house and never saw indicated, going Fulbright deals on in the house. And as Mr. mean, if they’re watching pretty closely. sounds as this house they’re taking notes, they’re writing license plate down down investigate people. Fulbright says, these And Mr. numbers well, Well, people where are these now? it is not the Defendant’s my prove burden. It’s not our burden to client is innocent. It’s may the State’s those produce types burden witnesses my government’s client in a crime. It’s the implement [sic] burden beyond a doubt. prove every each and element reasonable And [sic] That’s the most of our constitution. important principal proven guilty you that Sandra is innocent until all assured you you do And I still will. me will that. believe counsel, argument by This as well as each clearly prove instructions that state it is the State’s burden doubt, make it clear alleged beyond element of the offense reasonable record, entire Considering received a fair trial. that Newman in this rights implicated are not Newman’s fundamental constitutional *19 question, not called into case, the fundamental fairness of the trial is integrity judicial process compromised. and the is not context, closing argument, taken in was prosecution’s As ¶80 prejudiced by that was not improper, and the record reflects review. I argument, plain such the Court should not undertake error so. would affirm the conviction and dissent from our refusal to do GRAY, dissenting. CHIEF JUSTICE dissent from the Court’s decision to reverse and respectfully trial.
remand for new my Justice the various regard opinion, With Nelson’s is view opinions prosecutorial in this case illustrate that whether misconduct actually during closing argument question. Having occurred is a close transcript, read the entire it is clear to me that the case boiled down question Randy to a of whether the believed Jordan or whether it Newman, believed Sandra Jordan his sister and the defendant Indeed, case. that was the opening thrust of defense counsel’s closing argument. doubt, statement and his And without a Jordan’s credibility brought by was into clear focus both the State and defense counsel. The same true of was defendant Newman. Both the State and presented cases-in-chief, the defense other witnesses in their but “battleground” Jordan and Newman were the in this case. His-the State’s-theory responsible drugs was that Newman was for the paraphernalia; theory daughter was that either Jordan her and/or Amber, group who was in a home at the time of trial because of her drug activities, context, responsible. “big picture” was In this it is argue prosecution merely gaps reasonable commented on by in the briefly referring defense case to witnesses who did not appear. It argue prosecution’s also reasonable to that the references touched on the presumption of innocence. however, assuming, occurred, Even prosecutorial misconduct
my review of the record convinces me that it minor in the context of the overall case and does not plain rise the level of reviewable days, error. The trial in this matter over lasted one one-half recalled, witnesses were called and and scores of State exhibits were admitted into evidence. Closing arguments-by the State and defense counsel-cover a pages
mere 37
of a
In its first
transcript containing
pages.
over
closing argument,
prosecution’s
references to witnesses not called
covers, most,
18-page argument. Experienced
at
23 lines of an
defense
closing
primarily
credibility-as
opening
counsel's
focused
had his
finger
statement-and
at Jordan and/or Amber as the
pointed
extract,
15-page closing argument,
From a
one can
responsible parties.
most,
they?”
are
argument relating
33 lines of
to the State’s “where
references, primarily hammering
prove
on the State’s burden to
its
did not refer to these
beyond
prosecution
case
a reasonable doubt.
again
closing argument.
matters
in its final
understandably-in
any objection
counsel
the absence of
Appellate
plain
error
prosecution-requests
trial counsel to the remarks
subject,
and State
pursuant
Finley,
review
our seminal case on
*20
(1996),
25,
280 Mont.
determining that ineffective assistance new remanding for a reversing and instruction and accomplice flawed, view, legal analysis is as Justice my Leaphart’s trial. In Justice MCA, 26-1-303(4), Further, nothing makes clear. § Rice’s dissent must make a record criminal defense counsel suggests even The burden which regarding why required. instruction is not the Court itself criminal defense counsel should placed would be strategies trial micro-management performance oftheir start such is, least, very Finally, unwarranted. I would conclude say assistance-namely, the lack other claim of ineffective objection closing argument-be comments in all, pursued, postconviction if at relief proceeding. via I dissent.