Lead Opinion
delivered the Opinion of the Court.
¶1 Dallas Edward Reichmand (Reichmand) was convicted after a jury trial in March 2008 of two counts of Criminal Distribution of Dangerous Drugs, a felony in violation of §45-9-101, MCA. Reichmand appeals from the conviction, from the restitution condition of his sentence, and from the District Court’s denial of his post-trial motion to set aside the verdict.
¶2 On appeal we consider whether our recent decision in State v. Goetz,
PROCEDURAL AND FACTUAL BACKGROUND
¶3 In August 2007, officers working with the Southwest Montana Drug Task Force began investigating whether Reichmand was selling drugs from his residence in Butte, Montana. Officers recruited Terry Chor to act as an undercover agent to make drug purchases. On August 21,2007, Chor arranged to make a drug buy from Reichmand. Agents searched Chor and his vehicle, gave him money to make the buy, and equipped him with a transmitter that allowed agents off-site to hear and record Chor’s conversations. On August 24, 2007, Chor again bought ten morphine tablets for $35 each. Agents listened to and recorded Chor’s conversations during both transactions. Chor and the listening agents testified at the March 2008 trial. The recordings were played to the jury several times during the course of the trial. The officers did not obtain a search warrant authorizing use of the electronic monitoring. Reichmand did not testify or present any other evidence at trial. His defense centered on his contention that he was misidentified as the person who sold drugs to Chor.
¶4 A jury found Reichmand guilty of two counts of felony Criminal Distribution of Dangerous Drugs. On September 5, 2008-after the verdict but two weeks before the scheduled sentencing hearing-Reichmand filed a motion to set aside the jury verdict based on our decision in Goetz, which was announced on August 20, 2008. The parties submitted briefs on the motion, including supplemental briefs addressing this Court’s latest decision in State v. Foster-DeBerry,
¶5 On December 3, 2008, the District Court denied the motion, relying on Foster-DeBerry, in which the defendant’s appeal was pending when Goetz was decided. Foster-DeBerry asked this Court to remand her case so that she could present a Goetz-based challenge to the warrantless recording of her conversations during a police investigation. We concluded that she was not entitled to the benefits of retroactive application of Goetz because her case was not "similarly
STANDARD OF REVIEW
¶6 Reichmand’s appeal requires us to consider the retroactivity of State v. Goetz, which is a question of law. We review questions of law de novo. In re Fair Hearing of Hanna,
DISCUSSION
¶7 I. Did the District Court err in not granting Reichmand’s motion for a new trial based on the retroactive application of the holding in State v. Goetz?
A. Appellate review.
¶8 As an initial matter, we pause to consider our ability to review this issue on appeal. Questions of retroactivity may implicate a number of doctrines, such as plain error review, which allow appellate courts to consider issues that were not presented in the lower court. Given the requirement in our statues that the defendant must object to an alleged error “at trial” in order to preserve his rights to appeal, it would seem that we might need to rely on one of these doctrines to review the present case. Reichmand objected in the lower court several months after the verdict was pronounced, and the language of §46-20-701(2)(a) and §46-20-104(2), MCA, greatly restricts appellate review unless objections are made “at the time of trial” or “during trial,” respectively. We interpret “trial” here, however, to encompass the entire proceeding in the lower court, and thus may proceed directly to evaluating the retroactivity of Ooetz.
¶9 This interpretation of “at trial” is supported by the underlying rationale of these statutes-that it is ‘fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider.” State v. Gomez,
¶10 Objecting below at trial is a general requirement of appellate procedure. The District Court ruled that Reichmand was precluded from the retroactive application of Goetz because he failed to object at trial and
¶11 In previous Goetz retroactivity decisions, we have interpreted “similarly situated” to be a retroactivity-specific requirement. We first addressed the retroactivity of Goetz in Foster-DeBerry, where we relied on State v. Zivcic,
¶12 [1] In conclusion, there is a general rale of appellate procedure that in order to preserve an issue for appeal, the appellant must have raised the issue “at trial.” In the context of retroactivity jurisprudence, however, there is no independent requirement that the appellant have objected below, as Foster-DeBerry suggests. In order to be “similarly situated” for purposes of retroactivity, the defendant merely has to show that his case is pending on direct review or not yet final.
B. The retroactivity of Goetz.
¶13 We next review the District Court’s ruling that Reichmand was not entitled to a new trial as a result of the retroactive application of Goetz. This is a question of law, which we review de novo. Retroactivity jurisprudence in Montana is closely intertwined with federal law. The U.S. Supreme Court recently held that each state has the right to craft its own unique retroactivity jurisprudence, using federal requirements as a floor. Danforth v. Minnesota, 552 U.S. 264,
¶14 In State v. Egelhoff,
¶15 Thus, Goetz will retroactively apply to Reichmand if the requirements established in Egelhoff are met. As Goetz clearly announces a new rule, and Reichmand’s case is pending on direct review, not yet final, and thus “similarly situated,” we conclude that the requirements in Egelhoff are satisfied. The District Court erred in determining that Goetz was not retroactively applicable to Reichmand. We must next determine whether this error requires a reversal of Reichmand’s conviction. When a trial court commits an error, the record must show that the error was “prejudicial,” i.e. not harmless, or we cannot reverse. MCA §46-20-701. Thus, we will not overturn the District Court despite its incorrect conclusion that Goetz was not retroactive to Reichmand unless this error prejudiced Reichmand’s right to a fair trial.
¶16 To determine whether an error is “prejudicial,” we employ the “cumulative evidence” test set out in State v. Van Kirk,
C. Prejudicial error under Van Kirk.
¶17 The first step is to determine whether the claimed error is “structural”error or “trial”error. Structural errors are those that affect the framework within which the trial proceeds, rather than an error in the trial process itself. Id. at ¶ 38. These errors undermine the fairness of the entire proceeding. Examples include errors in jury selection, total deprivation to right to counsel, and lack of an impartial judge. Id. at ¶ 38. These structural errors are presumptively prejudicial and are automatically reversible. In contrast, “trial” errors occur during the presentation of the case to the jury. Trial errors are amenable to qualitative assessment by a reviewing court for prejudicial impact. Id. at ¶ 40. Reichmand’s alleged error is a trial error. It was an error occurring during the presentation of the case to the jury.
¶18 Because we have determined that the error in this case was a “trial” error, the next step in the Van Kirk analysis is to determine whether the error was prejudicial. When inadmissible evidence is introduced and the convicted person alleges prejudice, the burden shifts to the State. The State must then satisfy a two-part test. Id. at ¶¶ 43-44; State v. Peplow,
¶19 The audiotape recordings oftwo separate drug transactions, made by wiring a confidential informant, are inadmissible under Goetz and thus ‘tainted.” The recordings or portions of the recordings were
¶20 The first recording contains audio of the confidential informant Chor entering the house, asking ‘Is Dallas home?” After a few seconds of silence, Chor asks the other person, ‘You got six?” He responds, ‘Yeah, I got six.” He then counts from one hundred, concluding with “two hundred and ten.” Chor can then be heard counting twenty dollar bills: “One, two, three, four, five. One, two, three, four, five. Two hundred.” He then asks: “And ten?” Chor then presumably hands him the money, saying: ‘Here you go, buddy.” The rest of the tape seems to be small talk followed by Chor’s exit from the house.
¶21 The second recording is of the August 24, 2007 transaction. One can hear Chor knock on the door, enter, and say: ‘Dallas, do you have ten?”To which the other person responds, ‘Yeah.”Chor responds: ‘Ok, I’ll take ten.” After the two briefly struggle to get the math right, the other person eventually adds up the amount: ‘Thirty-five and ten is three hundred and fifty.” Chor counts in tens from forty, ending with three hundred and fifty. The other person can be heard saying, “Man, you are good. Here, have a cigarette.” Chor asks for a beverage, the other person briefly disappears out of the Cl’s microphone range, and then returns to count out one through ten (presumably doling out tablets of morphine). Chor says, ‘Thank you very much. I’m out of here.”
¶22 The jury heard the audio transcribed above during direct examination and during closing. Thus, we consider whether the fact-finder was presented with admissible evidence that proved these same facts. We conclude that the jury was presented with evidence that proved these same facts, through the testimony of Chor, the confidential informant. On direct examination, Chor testified that he set up the August 21, 2007 transaction, went to the residence, bought the pills, and returned to meet the Task Force at a predetermined location. Chor also testified that on August 24, 2007, he bought ten pills from Dallas. Chor’s testimony was admissible and proved, generally, the same facts as the tainted evidence did.
¶23 We therefore move to the second inquiry under Van Kirk’s harmless error analysis: was the quality of the tainted evidence such that there was no reasonable possibility that it might have contributed to the defendant’s conviction? Id. at ¶ 44. It is important here to note that the inquiry does not require us to definitively say whether or not the tainted evidence actually influenced the jury’s decision to convict. Rather, the question is whether the State can show there is no reasonable possibility that the tainted evidence might have contributed to the conviction. As we stated in Van Kirk, and we reemphasize now, this is a very high bar.
¶24 The State’s argument regarding this prong is brief and unpersuasive. The State admits that it used the recordings in response to Reichmand’s defense of misidentification: ‘The primary use of the recordings to refute this defense was to confirm Chor had used the name ‘Dallas’ to refer to the supplier of the morphine tablets.” (Emphasis added.) The recordings confirmed Chor’s testimony, likely bolstering his credibility in the minds of the jurors. Given that the defense had turned a spotlight on Chor’s potential ulterior motives, his shaky mental capacity, and his inability to remember parts of the transactions or names of officers he worked with, there is no doubt the recordings “possibly”influenced the outcome. The recordings provided the jurors with just what they needed in order to fully believe Chor: actual, objectively reliable recordings of everything that happened during both transactions.
¶26 It is hard to imagine that after hearing the recordings, a juror would not be more convinced that what Chor claimed happened actually did happen. The State admits to using the recordings as a means of corroborating Chor’s testimony. The state not only played and emphasized both recordings on direct, but also replayed a portion of the recording in its rebuttal closing. That recording was the sole piece of evidence the State presented again to the jury during closing arguments. In light of the above facts, the State has failed to demonstrate there is no reasonable possibility that the recordings might have contributed to the defendant’s conviction.
¶27 The State has not met its burden under Van Kirk, and thus the error is prejudicial and “reversal is compelled.” Id. at ¶ 45. We reverse Reichmand’s conviction and remand for a new trial. Because we find that he is entitled to a new trial, we need not reach the other issues Reichmand presents for appeal.
¶28 Reversed and remanded.
Notes
In his dissent, Justice Rice cites three cases for the proposition that post-trial objections do not properly preserve an issue for appeal. State v. McWilliams,
After updating these basic retroactivity principles in Egelhoff, we adopted Justice Harlan’s retroactivity approach to cases on collateral review. Reichmand’s appeal is not yet final. Therefore, the collateral review analysis articulated in the remainder of the Egelhoff opinion is not germane to the inquiry currently before the Court.
In Van Kirk, we rejected the previous “overwhelming evidence” test, which states that other overwhelming evidence of a defendant’s guilt can render harmless a district court’s error. We observed that over time, this analysis eclipsed the more substantive inquiry of whether the erroneously admitted evidence might have contributed to the conviction. We rejected the old test because it simply tallied the quantity of the admissible evidence of guilt instead of evaluating the qualitative impact the specific inadmissible evidence might have had on the fact-finder.
Concurrence Opinion
Concurs.
¶29 I concur in the result reached by the Court, but I write separately to clarify some of the issues of law involved.
¶30 Goetz was decided after Reichmand’s conviction but before sentencing, and he brought the issue to the District Court promptly.
¶31 It is clear that §46-20-701(2)(a), MCA allows this Court to “notice” Reichmand’s Goetz issue on appeal and to determine whether use of the warrantless electronic surveillance evidence against him warrants reversal of his conviction.
¶32 Goetz is substantially similar to this case legally and factually. I concur that admission of the evidence prejudicially affected
¶33 I concur in the result reached by the majority.
Requiring that defendants qualify for appellate review by objecting to evidence that was admissible under settled law at the time of trial requires a high level of clairvoyance. It may also lead to defendants ‘inevitably making a long and virtually useless laundry list of objections to rulings that were plainly supported by existing precedent.” Johnson,
We should not, of course, expect a high level of clairvoyance from the District Court as we did not so expect of Reichmand. At the time Reichmand made his motion the District Court followed the apparent law set out in Foster-DeBerry.
Dissenting Opinion
dissenting.
¶34 The Court fails to even acknowledge our established canons of statutory construction, our contrary caselaw, and the principles of retroactivity applied by federal and state courts throughout the country in reaching its decision. The Court’s faulty analysis leads to use of a harmless error analysis instead of a plain error analysis which should be used under the plain error statute-particularly in light of the statute’s legislative history, which the Court also ignores. Applying the correct analysis, I would affirm.
¶35 The Court’s analysis confuses two different issues. Under the law, the retroactivity of a new constitutional principle is completely distinct from the questions of whether a defendant has preserved the issue for appeal, whether this Court should take up the issue, and under what standards to do so. These concerns ask whether this Court should address Reichmand’s Goetz issue for the first time on appeal where he failed to raise the argument to the District Court before or during his trial. The law is clear that retroactive application of a new constitutional rule does not relieve a defendant’s obligation to preserve the issue for appeal-even under the plain error statute. This principle was recognized recently by the U.S. District Court for the District of Montana:
Petitioner is not correct that retroactivity extends to cases where, as here, the issue was not properly preserved for appeal. The Montana Supreme Court is not required to recognize and address errors that were not objected to at trial.
Paranteau v. Mahoney,
¶36 The Court’s error begins with its application of §46-20-701(2), MCA. We have explained that this provision is Montana’s “plain error statute” which mirrors the federal plain error doctrine and “codified the common law doctrine of plain error.” State v. Finley,
¶37 It is necessary to once again repeat the law’s instruction to us about statutory interpretation. The Court renders its interpretation without employing the law’s guides-apparently because they are facially contradictory to the Court’s interpretation. ‘In ascertaining legislative intent, we look first to the plain meaning of the words used.” State v. Stanczak,
¶38 It is also directly contrary to our precedent. Consistent with the statutes, our cases clearly hold that post-trial objections do not properly preserve an issue for appeal, but are waived. See § 46-20-104(2), MCA, State v. McWilliams,
¶39 This conflict is significant under the plain error statute because, in contrast to other appellate statutes, the plain error statute provides that waived issues may not even be “noticed” on appeal unless the defendant satisfies a threshold burden to show prejudice as to guilt. Compare §46-20-701(2), MCA, with §46-20-104(1), MCA (appeal may be taken from issues which merely “affect the substantial rights of the defendant”). Thus, this “[codification of] the common law doctrine of plain error,” Finley,
¶40 This understanding is also supported by the statute’s legislative history, which informs the issue of what standards of review are to be applied. Section 46-20-701, MCA, was first enacted in 1967, and amended in 1983, to provide several instances in which this Court could undertake plain error review, provided the defendant could still demonstrate heightened prejudice. Finley,
¶41 Consequently, under the plain meaning of the statute, its legislative history, and our cases, traditional plain error standards should be used by the Court in reviewing issues under the plain error statute. However, instead of following these statutory and common law plain error principles, the Court imports the harmless error analysis of State v. Van Kirk,
¶42 Harmless error is much different than plain error, involving different purposes, standards, and burdens, and I believe the Court is making a mistake in incorporating Van Kirk harmless error standards into a plain error analysis. Under harmless error, the burden is on the State, which committed the error over defendant’s objection, to demonstrate the lack of prejudice to the defendant because of that error. Van Kirk, ¶ 42 (“[I]t then becomes incumbent on the State to demonstrate that the error at issue was not prejudicial.”). Under plain error, it is the defendant who permitted the error to occur by failing to object, not the State, and the defendant thus bears the burden of demonstrating a need for review which overcomes that error. Further, the harmless error standard of review is a lesser standard than plain error, and is contrary to the plain language of the statute and the clearly expressed intent of the Legislature. Harmless error requires reversal merely when there is a Reasonable possibility” that ‘inadmissible evidence might have contributed to a conviction.”
¶43 This error is further evidence by the nation’s jurisprudence. Although acknowledging that ‘Trletroactivity jurisprudence in Montana is closely intertwined with federal law,” Opinion, ¶ 13, the Court woefully misunderstands federal law on this point. The United States Supreme Court’s retroactivity jurisprudence clearly supports the principle that a defendant waives a new constitutional rule of criminal procedure by failing to object, even when the new rule had not been announced until after the defendant’s trial. In cases in which the Supreme Court has determined whether a new constitutional rule of criminal procedure is retroactive, the defendant who sought retroactive application of the new rule had objected, thereby preserving the issue for appeal.
¶44 The Supreme Court recently reaffirmed these principles in United States v. Booker, explaining that retroactive application of a new constitutional rule of criminal procedure will not necessarily lead to a new trial or sentencing hearing. U.S. v. Booker,
¶45 In Johnson v. United States,
¶46 These principles are not limited to federal jurisprudence, but are broadly recognized in different states and federal circuits: Membres v. State,
¶47 Thus, our statutes and case precedent alike, in order to preserve the integrity of the judicial system, have stated and restated the rule requiring objections and have required appellants to bear the greater burden of demonstrating plain error if they have not properly preserved the issue. Under this long-established principle, whether a defendant has objected is clearly relevant, even for purposes of retroactive application of new rules. If a defendant properly preserves the issue by objecting-and Reichmand could have done so just as easily as Goetz-then he or she is automatically entitled to raise the retroactivity issue on appeal for consideration by the appellate court. If not, then the defendant must satisfy plain error standards.
¶48 Further reasons to apply established plain error standards are the similarities and purposes of the federal and state plain error tests. Our Finley plain error test is nearly identical to the plain error test announced in U.S. v. Atkinson,
¶49 Plain Error Application to Reichmand’s Claims
¶50 I do not believe that admission of the electronic recordings between Reichmand and Chor resulted in a manifest miscarriage of justice, unsettled the fundamental fairness of Reichmand’s trial, or compromised the integrity of the judicial process against him. See Finley,
¶51 The recorded conversations, combined, lasted a total of about five minutes. During the trial, Reichmand was first to inquire about the substance of the recordings when, during the recross-examination of the State’s fourth witness, Agent Martenson, his counsel attempted to demonstrate that Martenson couldn’t identify the individuals speaking on the recording. The State presented the testimony of five witnesses: a forensic scientist, three drug task force agents, and confidential informant Chor. The State played the electronic recordings only during the testimony of its final witness, Agent David Clark, and played a brief portion of one of the audiotapes in rebuttal closing. The recording was of such poor quality that, during rebuttal closing argument, the court reporter could not transcribe the recording because it was ‘hot audible.”
¶52 Reichmand’s defense was mistaken identity-4hat Reichmand’s brother was really the person who had sold the drugs. The State offered the recordings to reiterate Chor’s testimony that he had purchased the drugs from ‘Dallas” Reichmand. However, Chor’s own testimony established this point on numerous occasions. Chor testified that he had been to Dallas’ home to purchase drugs “[florty, 50 times” over the course of “about a year and a half.” During his testimony, Chor identified Dallas on at least four separate occasions, during both direct and cross examination, as the man from whom he bought the drugs. At one point, the following exchange occurred between the prosecutor and Chor:
Q. When you went in the house, who did you meet with?
A. Dallas. Dallas.
Q. And how do you know Dallas again?
A. That’s Dallas.
Q. That’s Dallas[?] Is that the person you purchased the drugs from?
A. Yes, it is.
Q. Do you know the man or the person you purchased those drugs from?
A. Yes. This man right here, Dallas.
¶53 I disagree with the Court’s statement that the electronic recordings provided “objective and qualitatively superior evidence” admitted at trial, Opinion ¶ 25. Three agents with the Southwest Montana Drug Task Force and Montana Department of Justice
We usually meet with the informant at a prearranged location, away from everybody. At that time, the informant is searched, his vehicle is searched for any items of contraband or money he might have.... At this point, we sometimes place a phone call to a suspect or we place an electronic transmitting device, or a wire, on the informant, give the informant some money. The informant is then followed to the location of a suspect by agents.
At that time, the informant goes to wherever the suspect is. It could be anywhere. In this instance, it was a house. He goes in the house, makes a transaction, comes back out, drives away. We follow him back to a prearranged meeting location, where, at that time, we take the dangerous drugs from him. And the informant is then searched for any items of contraband or money. His vehicle is also searched. The wire, the electronic transmitting device, is then removed. And we usually have an interview with him, a taped interview, of what occurred during the transaction.
The officers prearranged the meeting with Reichmand by searching Chor and his vehicle and giving Chor traceable money to purchase the drugs. In that way, any money spent or kept, and any illicit drugs removed from Chor after the purchase, were objective evidence of the criminal drug transactions with Reichmand. Further, the agents followed Chor to Reichmand’s house, surveilled the house while Chor was inside for the time necessary to make the drug purchases, followed him back to a prearranged location where they confiscated the drugs and money, and then interviewed him. All of this was objective, credible evidence against Reichmand.
¶54 As we did in State v. Schwartz,
See Linkletter v. Walker,
In addition to waiver, the Supreme Court similarly applied principles of procedural default, for failure to preserve an argument, in the retroactivity context in Bousley v. U.S.,
The Concurrence cites to Johnson’s statement regarding avoidance of‘“a long and virtually useless laundry list of objections to rulings that were plainly supported by existing precedent.’ ’’Concurrence, ¶ 30, n.l (quoting Johnson,
Applying these principles, I do not believe the Court’s decision today requires that Foster-DeBerry and Foston be overruled. The Foster-DeBerry decision, in particular, recognized the requirement that the defendant must object to preserve error for appeal. The Court there noted that, unlike here, the defendant had not made a plain error argument which could have allowed the Goetz issue to be considered. Foster-DeBerry thus left open the question we answer in this case. Adhering to stare decisis, I would not overrule those decisions. Certain v. Tonn,