State v. Reichmand

MONTANA, OF STATE Appellee, Plaintiff REICHMAND, EDWARD DALLAS Appellant. Defendant DA 09-0057. No. Briefs March 2010. Submitted on 27, 2010. Decided October 2010 MT 228. Mont. 68. 243 P.3d 423.

CHIEF concurred, joined JUSTICE McGRATH by JUSTICE NELSON.

JUSTICE RICE dissented. Joslyn Hunt, Appellant:

For Chief Appellate Defender; Jennifer Hurley, Intern, Legal Helena. Appellee: Bullock, General;

For Steve Montana Attorney John Paulson, General, Attorney Assistant Helena.

JUSTICE LEAPHART delivered the Opinion of the Court. (Reichmand) Dallas Edward Reichmand jury ¶1 was convicted after a trial in March 2008 of two counts of Criminal Distribution of Dangerous Drugs, felony §45-9-101, in violation of MCA.Reichmand conviction, appeals from the from the restitution condition of his sentence, and from the District Court’s denial of post-trial his motion to set aside the verdict. appeal On we consider whether our recent decision in State v.

Goetz, 2008 MT 345 Mont. 191 P.3d should be retroactively applied and, so, to Reichmand’s appeal direct if whether Reichmand’s should conviction be reversed.

PROCEDURAL AND FACTUAL BACKGROUND August 2007, working officers with the Southwest Montana Drug began Task Force investigating selling whether Reichmand was drugs Butte, from his residence in Terry Montana. Officers recruited Chor to act as agent drug purchases. an undercover make On August 21,2007, Chor arranged drug buy make from Reichmand. Agents vehicle, gave money searched Chor and his him to make the buy, equipped him with a agents transmitter that allowed off-site to hear and record August 24, Chor’s conversations. On Chor again ten bought morphine Agents for each. $35 tablets listened to and recorded Chor’s during conversations both transactions. Chor and the listening agents testified at the March 2008 trial. The were played to jury several during times course of the trial. The authorizing use of a search warrant did not obtain

officers any testify other present did not monitoring. Reichmand electronic he contention that was centered on his His defense evidence at trial. drugs to Chor. sold person as the who misidentified Criminal felony guilty of two counts Reichmand juryA found September On 2008-after Dangerous Drugs. Distribution of sentencing scheduled two weeks before verdict but jury based to set aside the verdict filed a motion hearing-Reichmand 20, 2008. Goetz, August announced on which was decision in on our motion, including supplemental on the submitted briefs parties Foster-DeBerry, in State v. Court’s latest decision addressing this briefs 164, 197 P.3d 1004. MT motion, 3, 2008, Court denied the the District On December was the defendant’s Foster-DeBerry, in which relying this Court to Foster-DeBerry asked was decided. when Goetz pending challenge to a Goetz-based present so that she could remand her case during police her recording of conversations the warrantless she not entitled the benefits concluded that investigation. We "similarly her because case was application of Goetz of retroactive rule. Id. at 8. Foster- newly-announced of a purposes situated” having raised the issue "similarly situated” as DeBerry defined level, thereby preserving by rule at the trial court addressed the new Foster-DeBerry, the reasoning from Utilizing Id. this appeal. it for to assert a had failed Goetz- that Reichmand District Court concluded from precluded therefore during to trial and was prior claim type to the defendant Goetz. “similarly he situated” arguing that is appeals. Reichmand now

STANDARD OF REVIEW retroactivity of us requires to consider Reichmand’s ¶6 of law Goetz, questions of law. We review question which is State v. Hanna, 38, 13, 355 Mont. Hearing 2010 MT ¶ In re Fair de novo. P.3d 596.

DISCUSSION Reichmand’s granting err in not Did District Court I. based on the retroactive a new trial motion for State v. Goetz? holding review. Appellate A. ability to review matter, pause to consider our As an initial may retroactivity implicate Questions of appeal. issue on

this doctrines, review, number of such as plain which allow appellate to courts consider issues that presented were not in the lower court. requirement Given the in our statues that the defendant object must alleged to an error “at trial” in preserve order to his rights appeal, it would might seem that we need to rely on one of these doctrines to present review the objected case. Reichmand in the lower court several months after the pronounced, verdict was language and the of §46-20- 701(2)(a) §46-20-104(2), MCA, greatly restricts appellate review objections unless are made “at the “during trial,” time of trial” or respectively. here, however, interpret We “trial” encompass proceeding court, entire may the lower and thus proceed directly to evaluating the retroactivity of Ooetz. This interpretation “at trial” is supported by the underlying

rationale ‘fundamentally these statutes-that it is unfair to fault the trial court for failing correctly to rule given on an issue it was never the opportunity Gomez, to consider.” State v. 111, 21, 2007 MT ¶ 219, 158 Mont. P.3d quoting Martinez, v. 65, 17, State 2003 MT ¶ 314 Mont. 67 P.3d 207. Where the trial court given opportunity issue, to rule on the here, as the objection then has been made “at trial” and the defendant has properly preserved the issue for by Waters, review this Court. 229, 24, State v. 1999 MT ¶ 101, 987 P.2d 1142 §46-20-104(2), (interpreting MCA, extending through sentencing); see also §46-20-104, Commission Comments to (2010 Annotations) MCA, at 1067 (emphasizing appellate authority court has the questions to “decide all raised the entire below”).1 proceeding, Objecting at trial a general below requirement appellate dissent, proposition post-trial In his Justice Rice cites three cases for the objections properly preserve appeal. McWilliams, do not an issue for State v. 2008 MT 43-47, 341 517, 178 121; Misner, 24-26, 339 ¶¶ Mont. P.3d State v. 2007 MT ¶¶ 176, 168 679; Grace, 22, 35, 304 Mont. P.3d State 2001 MT Mont. ¶ P.3d 1008. cases, object each of these we denied review for failure contemporaneously allegedly objectionable prosecutor’s closing material in the argument, citing longstanding objection our rule that an “must be made as soon as the grounds objection apparent” timely preserve for the become in order to the issue McWilliams, appeal. 45, citing Grace; Misner, 949 P.2d citing Grace; Grace, 35, citing ¶ ¶ Whitlow, (1997). 430, 442, v. cases, State because the In the cited grounds objection apparent during closing argument, for the became properly applied post-verdict objections we the rule block to review made by case, present contrast, inarguable grounds the defense. In the in it is that the for the objection4he newly applicable key issuance ofthe Goetz and decision its disallowance by proseeution-were Thus, apparent evidence used not until after the verdict. while present objection post-verdict the result of the case-that an made is considered timely-is contrary dissent, by to the results reached in the cases cited in rule applied consistently today. these cases is in our decision precluded that Reichmand was District Court ruled The

procedure. object to he failed application Goetzbecause from the retroactive “similarly under the rule from situated” and thus he was not trial ‘Similarly shove,Foster-DeBerry defined Foster-DeBerry. As mentioned rule at the addressed the new having raised the issue situated” as Although we level, thereby appeal. it for preserving court trial below, trial” since the District objected “at conclude that Reichmand “similarly standard in situated” its conclusion on Court based Foster-DeBerry’s to address Foster-DeBerry, opportunity take this we retroactivity jurisprudence. in our place decisions, retroactivity interpreted have previous In Goetz We first retroactivity-specific requirement. “similarly situated” to be Foster-DeBerry, where we relied retroactivity ofGoetzin addressed the (Wis. 565, 568 Zivcic, 119, 124-25, 598 N.W.2d v. 229 Wis. 2d on State having “similarly situated” means 1999), proposition for the App. court’s definition objection The Wisconsin raised the same below. itself on an invocation of “similarly in Zivcic was based situated” Kentucky, 479 v. U.S. Court’s decision Supreme U.S. Griffith (1987). examination, however, does On closer 107 S. Ct. 708 Griffith it position, and becomes court’s appear support not Wisconsin Lane, 109 S. Ct. Teague v. U.S. clear that both Griffith (1989), “similarly only justify retroactive used situated” majority procedure. rules of application of new prospective past Court’s “similarly explain why policy used situated” Griffith of application was excluding new rules from retroactive “clear break” “similarly situated”to describe Teague, the Court used inequitable. appeals pipeline still in the same direct defendants who were how was announced were denied case the new rule the defendant in whose Supreme own cases reached the of the new rule once their the benefit phrase usages make clear that the Court’s use Court. These nothing than rationale for “similarly compelling more situated” rules, limiting rather than new rules of new application retroactive Thus, it does after the is handed down. decision prospective any convincing in either the federal support that there is appear or in Montana’s own retroactivity adopted, we have rules of “similarly retroactivity interpreting subsequent jurisprudence, our decisions having objected Wetherefore overrule situated”as below. MT 191, 351 Foston, Mont. Foster-DeBerry and State the rules of require appellant-within insofar as P.3d at trial in order for retroactivity-to Goetz-type objection have raised retroactively. apply Goetz to In ^[1] conclusion, there a general rale of procedure

that in order to preserve an issue for appeal, appellant must have raised the issue “at In trial.” the context of retroactivity jurisprudence, however, there independent is no requirement appellant that the have objected below, as Foster-DeBerry In suggests. “similarly order to be purposes retroactivity, situated” for merely the defendant has to show that his case is pending yet on direct review or not final. B. retroactivity Goetz. We next ruling review District Court’s that Reichmand was

not entitled to a new trial as result of the retroactive law, Goetz.This is a question of which we review de novo. Retroactivity jurisprudence closely in Montana is intertwined with federal law. The Supreme U.S. Court recently held that each right state has the to craft unique retroactivity its jurisprudence, own using requirements federal Minnesota, (2008). as a floor. 552 U.S. S. Ct. 1029 Danforth is, That Supreme the U.S. retroactivity analysis Court’s for federal constitutional errors is binding upon the states when federal constitutional errors are involved. unequivocal grant of Danforth’s flexibility allows hand-pick states to retroactivity rules for application of new state rules. State v. Egelhoff, (1995), Mont. 900 P.2d 260 we chose adopt two such rules from Teague them applied Griffith our own retroactive application of new state rules. We held that the

following retroactivity binding principles were on the Montana Supreme Court. First: “[A] new rule for the conduct of criminal prosecutions applied retroactively cases, federal, is to be to all state or pending on yet direct review or not final.” Id. at 21 (citing Griffith, ¶ 716). ‘tOjnce 479 U.S. at 107 S. Ct. at Second: a new rule is applied to the defendant in the announcing rale, case evenhanded justice requires that it applied retroactively to all who are similarly 300-01, 109 situated.” Id. at 21-22 (citing Teague, 489 U.S. at ¶¶ S. Ct. 1070). We then held that these would apply retroactively new rules subject cases still to final decision on direct review as date of Id. opinion.2 at 24. Thus, retroactively apply Goetz will to Reichmand if the requirements Egelhoff established in are clearly met. As Goetz updating retroactivity principles Egelhoff, adopted After basic these retroactivity approach Justice Harlan’s to cases on collateral review. Reichmand’s yet Therefore, analysis is not final. the collateral review articulated in the Egelhoff opinion germane inquiry currently remainder of the is not to the before the Court. rule, on direct pending case is and Reichmand’s

announces new situated,” “similarly we conclude review, final, and thus yet not erred in The District Court are Egelhoff satisfied. requirements to Reichmand. retroactively applicable not determining that Goetzwas requires reversal this error next determine whether We must error, the court commits an a trial conviction. When Reichmand’s harmless, or “prejudicial,”i.e. not show that the error was record must Thus, we will overturn reverse. MCA §46-20-701. we cannot that Goetz was not conclusion despite its incorrect District Court Reichmand’s prejudiced unless this error to Reichmand retroactive to a fair trial. right employ the “prejudicial,” an error is To determine whether

¶16 Kirk, v. 2001 MT test set out in State Van “cumulative evidence” 215, 32 P.3d 735. 306 Mont. Van Kirk. Prejudicial error under

C. error is the claimed step is to determine whether The first ¶17 errors are those that affect or “trial”error. Structural “structural”error rather than an proceeds, within the trial the framework which the These errors undermine process itself. Id. at 38. ¶ in the trial jury include errors in Examples proceeding. of the entire fairness counsel, impartial right and lack of selection, deprivation total are presumptively structural errors judge. Id. at 38. These ¶ contrast, errors automatically “trial” reversible. prejudicial and are Trial errors are jury. of the case to the during presentation occur the reviewing a court for by qualitative amenable to assessment alleged a error is trial Id. at 40. Reichmand’s prejudicial impact. ¶ during of the case occurring presentation an error the error. It was jury. the case that the error this was Because we have determined analysis determine error, step in the Van Kirk is to

“trial” the next is inadmissible evidence prejudicial. the error was When whether alleges prejudice, the burden person convicted introduced and the Id. at satisfy two-part test. The State must then shifts to the State. 46-47, MT 43-44; Peplow, ¶¶ State ¶¶ First, “the fact-finder was the must show that P.3d 922. State the the same proved admissible evidence presented with facts Second, that “the the State must demonstrate proved.” evidence tainted no reasonable was that there was tainted evidence such quality of the to the defendant’s might it contributed possibility that have Kirk, As we observed (emphasis original). 43-44 conviction.” Van ¶¶ than our Kirk, ‘inarguably is more restrictive” this new test Van previous “overwhelming evidence” test. Id. 43. The audiotape recordings transactions, separate drug oftwo made

by wiring informant, confidential are inadmissible under Goetz and recordings thus ‘tainted.” of portions recordings the were played for the jury separate on three during First, occasions the trial. State played August the recording the transaction during Agent testimony. Second, David Clark’s played State recording August during 2007 transaction the same direct Agent Third, examination Clark. the State played audiotape Thus, during closing. rebuttal the State will first need to show that it submitted prove relevant evidence to same proved by facts as were recordings, these and then will need to “quality” show that the such that there was no possibility reasonable that they might have contributed to Reichmand’s conviction. The first recording contains audio of the confidential informant entering house,

Chor asking ‘Is Dallas home?”After a few seconds silence, Chor asks the other person, got ‘You six?” He responds, ‘Yeah, I got hundred, six.”He then counts from one concluding with “twohundred and ten.” Chor can then be heard counting twenty dollar “One, two, three, four, One, two, three, bills: four, five. five. Two hundred.” He then asks: “Andten?” presumably Chor then hands him money, saying: go, you buddy.” ‘Here The rest of the tape seems to small talk followed Chor’s exit from the house. The second recording August 24, 2007 transaction. One can hear Chor door, enter, ‘Dallas, knock on the say: you do have ten?”To which the person responds, ‘Ok, other responds: ‘Yeah.”Chor I’ll briefly take ten.” After the struggle get two to the right, math the person eventually other ‘Thirty-five adds up the amount: and ten is fifty.” three hundred and ending Chor counts in tens from forty, with fifty. three hundred and The person saying, “Man, other can be heard you Here, good. cigarette.” are have Chor asks a beverage, the briefly person other disappears microphone out of the Cl’s range, and then returns through to count out one ten (presumably doling out of says, tablets Chor morphine). you very ‘Thank much. I’m out of Kirk, rejected test, previous “overwhelming In Van the evidence” which overwhelming guilt states that other of evidence a defendant’s can render harmless a time, analysis eclipsed district court’s error. We observed that over this the more inquiry erroneously might substantive of whether the admitted evidence have rejected simply contributed to the conviction. We the old it test because tallied the quantity the guilt evaluating qualitative impact the admissible evidence instead the specific might inadmissible evidence have had on the fact-finder.

here.” during above direct audio transcribed jury heard the The the fact- Thus, whether during closing. we consider

examination these same proved evidence that with admissible presented finder was evidence that presented with jury that the was facts. We conclude Chor, testimony the facts, through these same proved examination, Chor testified that he direct informant. On confidential residence, transaction, bought went to the August 21, 2007 up set predetermined at a meet the Task Force pills, and returned to bought he ten August that on testified location. Chor also proved, testimony admissible and from Dallas. Chor’s pills evidence did. same facts as the tainted generally, the Kirk’s inquiry under Van move to the second We therefore of the tainted evidence such quality was the analysis: harmless error might it have contributed that possibility that there was no reasonable important here note Id. at 44. It conviction? the defendant’s or not definitively say whether not us to inquiry require that the does convict. actually jury’s decision to influenced the tainted evidence is no the State can show there Rather, question is whether might have the tainted evidence possibility reasonable Kirk, in and we As we stated Van contributed the conviction. now, very high bar. reemphasize this is is brief and argument regarding prong this The State’s recordings response admits that it used The State unpersuasive. ‘The use of primary of misidentification: to Reichmand’s defense had used the was to Chor recordings to refute this defense confirm morphine tablets.” supplier to the of the name ‘Dallas’ to refer added.) testimony, likely recordings Chor’s (Emphasis The confirmed that the jurors. of the Given bolstering credibility the minds his motives, ulterior his potential on Chor’s spotlight had turned a defense inability of the parts to remember shaky capacity, and his mental with, no doubt the he worked there is or names of officers transactions recordings provided The the outcome. recordings “possibly”influenced fully Chor: in order believe just they needed jurors with what happened recordings everything actual, objectively reliable during transactions. both testimony chronological gaps filled in also recordings, only testify to how who, could agents without the of Chor and their observations Chor for the transactions prepared They could agents after the transactions. he met with again

when inside drug transactions entry or observe the see the back ofthe house the house. The circumstantial evidence was far from conclusive. Chor agents and the all testified that there people were other in the residence at the time both recordings transactions. The of both objective transactions qualitatively constituted and superior evidence jury for the to compare against testimony Chor’s about the details of the transactions and his identification of Dallas as the dealer. recordings large agents’ also filled in in the testimony regarding holes the most critical part of case: the transaction itself. It imagine is hard to hearing

¶26 that after recordings, juror a would not more convinced that what Chor happened claimed actually happen. did The State using admits to a recordings as means corroborating testimony. only Chor’s The state played and emphasized direct, both replayed but also a portion of the recording closing. in its rebuttal recording That was the sole piece presented evidence the State again jury during closing arguments. light facts, of the above the State has failed to demonstrate there is no possibility reasonable that the recordings might have contributed to the defendant’s conviction. The State has not met Kirk, its burden under Van thus

error is prejudicial compelled.” and “reversal is Id. 45. We reverse Reichmand’s conviction and remand for a new trial. Because we find trial, that he entitled to a new we need not reach the other issues presents Reichmand appeal. for Reversed and remanded. COTTER,

JUSTICES WHEAT and MORRIS concur.

CHIEF JUSTICE MCGRATH Concurs. I concur in Court, the result reached but I separately write clarify some of the issues of law involved. Goetz was decided after Reichmand’s conviction but before sentencing, brought and he issue to District Court promptly.1 “timely Whether or not that was a objection during trial” under §46- 20-104(2), MCA, clearly Reichmand is entitled to have this Court §46-20-701(2)(a), review the issue under MCA.That provides statute affecting claim of error rights may constitutional be “noticedon appeal” even if objection there was no in the district court if the 1Requiring qualify by objecting that defendants review to evidence requires that was admissible high under settled law at the time trial level of clairvoyance. may ‘inevitably making long virtually It also lead to defendants laundry objections rulings plainly supported by useless list of that were existing Johnson, precedent.” 520 U.S. at S. Ct. at 1549. That would be an unwarranted judicial of time and waste resources. “right and the guilt punishment the defendant’s prejudicial time of the trial and has been the claim did not exist at the

asserted in Goetzdecision was application.”The retroactive in its determined to be protections the and seizure right privacy the of and search upon based and thus meets II, and ofthe Montana Constitution ofArt. Secs. 10 Second, rights. affects constitutional that the issue requirement the was admitted electronic surveillance evidence the fact that warrantless it was showing sufficient facie that prima and used at trial should be a finding guilt, meeting another to the of Reichmand’s prejudicial Third, rights by Goetz did the determined requirement of the statute. trial, and has been at the time of Reichmand’s Goetz now not exist retroactive, requirements of the meeting the last determined statute. §46-20-701(2)(a), MCA this Court “notice” It is clear that allows

¶31 on and to determine whether use appeal Reichmand’s Goetz issue against him electronic surveillance evidence warrants the warrantless his reversal of conviction. substantially legally factually. and I similar to this case Goetz is affected prejudicially that of the evidence

concur admission 46-20-701, rights. Section MCA. The Reichmand’s substantial evidence used at Reichmand’s trial electronic surveillance warrantless subject That the basis suppression under Goetz.2 contention was was trial, granted for which could have been for Reichmand’s motion a new unless use of the warrantless electronic surveillance under Goetz majority’s conclusion harmless error. I concur with the evidence was Kirk, test there is a that under the current harmless error from Van the electronic surveillance evidence possibility reasonable Therefore, the error was not harmless. contributed to the verdict. majority. in reached I concur the result joins foregoing in the concurrence. JUSTICE NELSON RICE, dissenting. JUSTICE acknowledge to even our established canons The Court fails construction, caselaw, principles contrary our

statutory throughout retroactivity by federal and state courts applied faulty analysis leads to country reaching its decision. The Court’s analysis which plain instead of a error analysis use a harmless error light statute-particularly plain should be used under the not, course, high clairvoyance expect District level of from the We should of expect the time Reichmand made his motion as did not so of Reichmand. At Court we Foster-DeBerry. apparent Court law set out the District followed legislative history, statute’s which the ignores. Court also Applying analysis, the correct I would affirm. The Court’s analysis law, confuses two different issues. Under the retroactivity aof new constitutional principle completely distinct questions

from the of whether a defendant has preserved the for issue appeal, issue, whether this Court up should take and under what standards to do so. These concerns ask whether this Court should address Reichmand’s Goetzissue for the first time where he failed to raise the argument to the District Court before or during his trial. The law is clear that retroactive of a new constitutional rule does not obligation relieve defendant’s to preserve the issue appeal-even under error statute. principle This recognized recently by was the U.S. District Court for the District of Montana:

Petitioner is not correct retroactivity extends to cases where, here, properly preserved issue not for appeal. Supreme Montana Court is required recognize address objected errors were not to at trial. * (D. Paranteau v. Mahoney, 2010 U.S. Dist. LEXIS 66634 at 7 Mont. 2010) added). 8,

Apr. (emphasis begins Court’s error with §46-20-701(2), ¶36 its of MCA. We have explained provision that this is “plain Montana’s error statute” which mirrors the plain federal error doctrine and “codified the common law plain Finley, doctrine of error.” 126, State v. 276 Mont. 132-33, 915 208, 212-13 (1996), P.2d overruled on other grounds, State Gallagher, 21, 304 v. 39, 215, 19 2001 MT Mont. ¶ P.3d 817. The Court acknowledges that plain error statute “greatly restricts appellate review objections unless are made ‘at the time of trial’ or ‘during ” trial,’ Opinion, 8, then, but acknowledging without our ¶ canons statutory construction contrary and our precedent, simply leaps to the conclusion that the phrases “at the time of “during trial” and trial” actually trial,” can mean or, “fivemonths after apparently, any time after trial. It necessary again is to once repeat the law’s instruction to us

about statutory interpretation. The Court interpretation renders its employing without guides-apparently law’s because are facially contradictory to interpretation. the Court’s ‘In ascertaining legislative intent, we look first to the plain meaning of the words Stanczak, 106, 263, used.” 17, State v. 2010 MT 356 Mont. 232 P.3d ¶ (citing Mukasey, 20, 10, 349 88, 896 Van Der Hule v. MT Mont. ¶ 1019) added). 217 P.3d (emphasis ‘During trial”plainly “during means Indeed, the Court’s after trial concludes. five months

trial”-not holding that stating when its marks quotation use repeated holding trial,”is reader that this a wink to the objected “at Reichmand meaning. plain contrary the statute’s directly directly contrary precedent. to our Consistent with isIt also do not objections statutes, clearly post-trial hold that our cases 46-20- are See appeal, § but waived. an issue preserve properly 43-47, 341 McWilliams, 59,MT Mont. MCA, 104(2), ¶¶ State v. 24-26, Misner, 235, v. 2007 MT 517, 178 121; ¶¶ State P.3d 35, 144, 18 Grace, 22, Mont. 2001 MT 679; State P.3d P.3d 1008. because, plain error statute significant under This conflict is statutes, plain provides statute error appellate contrast other unless the may “noticed”on issues not even be

that waived guilt. as to prejudice burden to show satisfies threshold defendant §46-20-104(1), may MCA, (appeal MCA §46-20-701(2), with Compare rights ofthe merely “affectthe substantial from issues which taken be defendant”). common doctrine Thus, “[codification of] the law this 915 P.2d at embodies error,” Finley, 276 Mont. plain to obtain review of threshold determination kind same establishing retroactivity law-in addition under the common applied aof new rule. legislative by the statute’s understanding supported is also This of review are to be standards

history, informs the issue what which 46-20-701, MCA, enacted in was first Section applied. instances in which this Court provide several amended review, defendant could still provided the undertake could P.2d Finley, 276 Mont. at heightened prejudice. demonstrate Legislature amending the statute at 212-13. When by a criminal which can raised to “limit the issues intended prolonged discourage and “to abuses appeal,” defendant on Comm., Bill Hearing on Sen. Mont. Sen. Jud. Minutes appeals.” (Jan. 1983). Judiciary In the House Legis., Reg. Sess. 2-3 48th the out of Committee, supported bill Representative Underdal on ‘based, guilt, of but question not on the appeals frustration for Comm., on Sen. Hearing Minutes Mont. H. Jud. technicalities.” (Mar. sought 16,1983). Legislature 2,48th Legis., Reg. Bill Sess. circumstances, including to error review selected plain to limit prejudice as actually had suffered retroactivity, when the defendant guilt or punishment. his or her Consequently, under plain statute, meaning its

legislative history, cases, and our plain traditional error standards by should be used in reviewing Court issues under the plain error However, following statute. instead of these statutory and commonlaw plain principles, error the Court imports analysis the harmless error Kirk, State v. Van 2001 MT P.3d 735. Van Kirk, the objected defendant had in the trial court and preserved the issue, suppression Kirk, which he then on appeal. raised Van 9. We ¶ thus Kirk, 29, 36, formulated in Van a new test for applying ¶¶ analysis harmless error 46-20-701(1), under MCA, § to address prejudice to the defendant from trial objected errors to at trial-not the plain analysis error §46-20-701(2), under MCA, for errors waived at trial. ‘Wetherefore appropriate deem it formally adopt approach Kirk, error harmless issues....” Van 36. ¶ Harmless error is much error, different than plain involving standards, different purposes, burdens, and I believe the Court is making a mistake incorporating Van Kirk harmless error standards into a plain analysis. error, Under harmless the burden is on the State, which committed the error over defendant’s objection, to demonstrate the prejudice lack of to the defendant because of that (“[I]t Kirk, error. Van then ¶ becomes incumbent the State to demonstrate that the error at issue was not prejudicial.”). Under plain error, it is the permitted defendant who the error to by failing occur State, object, not the and the defendant thus bears the burden of demonstrating a need for review which Further, overcomes error. the harmless error standard of review ais lesser standard plain than error, contrary and is plain to the language of the statute and the clearly expressed intent of Legislature. Harmless error requires merely reversal when there is a Reasonable possibility” that ‘inadmissible might evidence have contributed to a conviction.” Van Kirk, error, 42. plain Under as explained Finley, ¶ prejudicial error is that which “a miscarriage constitutes manifest ofjustice, may leave unsettled the question the fundamental fairness the trial or proceedings, may compromise the integrity judicial process.” Mont, Finley, 915 P.2d at 215. We should not confuse the two, but apply rather Van Kirk harmless error standards under the statute, harmless error apply Finley plain error standards under error statute. This error is further evidence jurisprudence. nation’s Although acknowledging ‘Trletroactivity jurisprudence closely Montana is law,” intertwined with Opinion, federal 82 The United point. law this federal on woefully misunderstands

Court clearly jurisprudence supports retroactivity Court’s Supreme States rule of a new constitutional a defendant waives principle the new rule had not by object, to even when procedure failing criminal In cases in which the defendant’s trial. until after been announced rule a new constitutional has determined whether Supreme Court sought retroactive, who the defendant procedure criminal thereby objected, of the new rule had application retroactive Louisiana, Supreme In Shea v. appeal.1 issue for preserving the to decided was “whether reiterating that the issue began by Court retroactively respect with applies Arizona] ruling [in Edwards v. [the] his case was raised and when the issue convictions petitioner’s to system the in the state undecided on direct pending and was 51, 55, S. Ct. La., 105 Shea v. 470 U.S. was decided.” time Edwards added). (1985) held that ‘if The Shea Court 1065, (emphasis 1068 decided, at the time Edwards was direct review pending case Edwards, subject, give effect to court must retroactive error, waiver, harmless course, principles to established 4, (emphasis n. 4 Shea, n. S. Ct. at 1070 U.S. at 59 105 like.” 470 added). in United principles these recently Court reaffirmed Supreme The a new Booker, that retroactive explaining v.

States necessarily lead to will not procedure rule of criminal constitutional 268, 125 220, Booker, hearing. v. 543 U.S. sentencing U.S. new trial or (2005). reviewing to expect courts 738, ‘That is 769 because S. Ct. doctrines, example, determining, ordinary apply prudential 1 (1965) 1731, 618, 621, Walker, 85 S. Ct. 1733 v. 381 U.S. See Linkletter (defendant suppress his home and business search to seized from moved evidence 314, 107 (1987); Ky., arrest), part, S. Ct. 708 v. 479 U.S. to overruled in incident Griffith (1969) (defendants 244-46, 1030, 1031 U.S., 244, moved S. Ct. Desist v. U.S. rights); Amendment suppress wire-tapping of their Fourth evidence as violation (1971) (defense 1160, 1162 objected U.S., 667, 669, 91 S. Mackey Ct. counsel U.S. v. prejudicial, exhibits, “arguing specific were the introduction 537, 539, irrelevant’); Johnson, 102 S. Ct. inflammatory, 457 U.S. U.S. v. (1982) (‘Before sought suppress trial, respondent his oral and written arrest....”), part, Griffith, 479 U.S. overruled in of an unlawful statements as fruits (1985) (defendant 52-53, 105 1065, 1066 708; La., S. v. 470 U.S. Ct. 107 S. Ct. Shea Hardy, confession); v. 478 U.S. objected suppress his Allen to a motion to and filed both (defense (1986) discharge panel 2878, 2879 255, 256, 106 venire counsel moved S. Ct. (counsel Ky., 107 Ct. at 710 grounds); 479 U.S. at S. on constitutional Griffith jurors, striking prospective explanation black requested prosecution’s offour for the discharge panel Amendment and Fourteenth on Sixth and moved for constitutional grounds). whether the issue was raised below and it ‘plain- whether fails the .’’Booker, error’ test 543 U.S. at 125 Ct. S. at 769.2 States, In Johnson v. United (1997), 520 U.S. S. Ct. 1544 Supreme Court retroactivity undertook the defendant’s claim plain under error review standards because the defendant had failed preserve objecting. Supreme issue Court described its under review error rule discretionary, mandatory. Johnson, Further, 520 U.S. at 117 S. atCt. 1549. the Supreme ultimately because, Court denied relief to Johnson though even the retroactive, new rule was under error plain there was ‘ho basis for concluding ‘seriously that the fairness, error affected the integrity or ” public reputation judicial of proceedings.’ Johnson, 470, 520 U.S. at 117 S. Ct. at 1550.3 These principles are not limited jurisprudence, to federal but are

broadly recognized in different states and federal circuits: Membres v. (Ind. 2008) State, 265, 889 N.E.2d objection (recognizing the requirement for new state constitutional retroactively); rules applied (Alaska 11, 15 2005) Milligrock State, v. 118 P.3d App. (citing Johnson, 466-67, 117 520 1548-49; U.S. at S. State, Ct. at Haag 775, v. 117 P.3d (Alaska (Alaska 2005)); 782 App. State, 438, 443 v.Ned 119 P.3d App. 2005) (citing Johnson, 461, 520 U.S. 117 1544; Cotton, S. Ct. U.S. v. 625, 122 535 (2002)); U.S. S. Ct. 1781 LaClair, State v. 433 A.2d (N.H. (Wash. 1981); Cross, 1328-29 State v. P.3d 234 288 App. Div. 2 (Ariz. 2010); Holder, State v. 1987); Lann, 745 P.2d 141 People v. 633 (Ill. N.E.2d 938 App. 1994); 1st Dist. Hutchinson, State v. 342 S.E.2d (W. 1986); (Ala. State, 138 Va. v. Poole 846 So. 2d 370 Crim. App. (6th 2009) (no 2001); Deitz, U.S. v. 577 F.3d 687-88 Cir. plain error ain case in which defendant failed to preserve the question (Mich. for appellate review); Woods, People v. 331 N.W.2d 725 1982) (holding Sandstrom Mont., 510, 99 v. 442 (1979), U.S. S. Ct. 2450 2 waiver, Supreme similarly applied principles addition to Court of default, procedural preserve argument, retroactivity for failure to an in the context in Bousley U.S., 614, 118 (1998), Engle Isaac, v. 523 U.S. S. Ct. 1604 and v. 456 U.S. (1982). 102 S. Ct. 1558 3 regarding The Concurrence long cites to Johnson’s statement avoidance of‘“a virtually laundry objections rulings and plainly supported useless of list to (quoting Johnson, that were by existing precedent.’ ’’Concurrence, 468, 117 n.l 520 U.S. at 1549). Ironically, by S. Ct. at this statement support was made the Johnson Court in plain application review, of opposes, its of which the Concurrence to demonstrate “ ” ‘plain’ that such review is undertaken for errors are which at the time of retroactive appellate review, objecting necessity altogether. Johnson, not to excuse the of 520 U.S. 468, 117 S. Ct. at 1549.

84 where error was retroactively applied pending cases would (6th Grant, F.2d 811 Cir. McBee v. 763 preserved); and properly raised (7th 2002) 1985); U.S., (petitioner F.3d 972 Cir. Rodriguez 286 by failing to claim Apprendi waived his prior Apprendi sentenced (8th Palmer, court); Cir. U.S. v. 297 F.3d raise it in district 2002) (THhat before the legal precedent did not exist Apprendi as a [one case ... did not excuse present in the prior appeal argument in raising Apprendi-ITke defendants] from burden (10th Sanchez-Cruz, 392 F.3d 1196 Cir. first U.S. v. appeal.”); (2005), 2004), vacated, part U.S. S. Ct. 1866 aff'd (10th 2005); Stearns, Fed. Cir. U.S. v. inpart, Appx. reinstated 2004). (1st Cir. 387 F.3d alike, to preserve in order Thus, precedent our statutes and case and restated the rule integrity judicial system, have stated greater required appellants bear

requiring objections have demonstrating properly error if have burden principle, long-established Under this whether preserved the issue. relevant, clearly purposes is even for objected defendant has properly preserves rules. If a defendant retroactive new just easily could have done so by objecting-and Reichmand the issue automatically she entitled to raise as Goetz-then he or court. retroactivity for consideration issue not, satisfy plain must error standards. If then the defendant plain error standards are the apply Further reasons to established error Our plain ofthe federal and state tests. purposes similarities and nearly the test Finley plain error test is identical error plain 391, Atkinson, 56 S. Ct. 392 announced in U.S. v. U.S. 725, 736, Olano, 113 S. Ct. (1936), in U.S. v. 507 U.S. and followed (1993), 1549, U.S. Johnson, 520 U.S. at 117 S. Ct. at 631-33, 122 1785-86, Ct. at and a host of other Cotton, U.S. at S. eventually plain error test was codified as Federal cases. The Atkinson 52(b), 736-37, Olano, 507 U.S. at Rule Procedure see of Criminal plain formed the basis for the error doctrine S. Ct. at which Johnson, 465-70, The at 117 S. Ct. at 1548-50. applied in 520 U.S. review purpose: serve the same plain federal and state error tests error, a contemporaneous even in the absence of fundamental miscarriage of result in a manifest objection, that otherwise would fairness ofthe justice, question unsettled the the fundamental leave integrity judicial process. the ofthe proceedings, compromise trial or or only test, disregards plain our error Employing the Van Kirk test directive statute, legislative history, and but also the plain our error its of Johnson and the guidance substantial federal on this I issue.4 suspect that, future, point some in the eyes fresh will folly see the failing plain to apply error statute, standards under the error and will restore common law review standards to the statute as originally Legislature intended. If the grows impatient day, it may want to consider adding language to the statute it requiring to be applied originally intended. Application

¶49 Plain Error to Reichmand’s Claims 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 trial, Reichmand’s compromised integrity of the judicial process against him. See Finley, 276 Mont. at 915 P.2d at 215. The State’s case at trial heavily rested on testimony Terry confidential informant Chor. The recordings electronic marginal best, were evidence at merely cumulative testimony, fraction Chor’s while the evidence supporting guilt Reichmand’s was overwhelming and largely uncontroverted. The conversations, recorded combined, lasted a total of about five trial, During

minutes. Reichmand was inquire first to about when, substance of the recordings during the recross-examination of witness, Martenson, the State’s fourth Agent his attempted counsel demonstrate that Martenson couldn’t identify the speaking individuals recording. The State presented the testimony of five witnesses: scientist, a forensic drug three task agents, force and confidential informant played Chor. The State recordings the electronic only during testimony witness, Agent its final Clark, David played brief portion of one the audiotapes rebuttal closing. recording that, of such poor quality during closing argument, rebuttal court reporter could not recording transcribe the because it was ‘hot audible.”

¶52 Reichmand’s identity-4hat defense was mistaken Reichmand’s really brother was the person who had drugs. sold the The State offered the to reiterate testimony Chor’s that he had 4 Applying principles, these today requires I do not believe Court’s decision Foster-DeBerry Foster-DeBerry decision, and Foston be overruled. The particular, recognized requirement object preserve that the defendant must appeal. that, here, for The Court there noted unlike the defendant had not amade argument which could have allowed the Goetz issue to be considered. Foster- DeBerry open question decisis, thus left Adhering we answer this case. to stare I Tonn, would not overrule those decisions. Certain v. 2009 Mont. ¶ 353 Mont. 384; Kirkbride, P.3d State 2008 MT 185 P.3d 340. However, Chor’s own Reichmand. drugs from ‘Dallas”

purchased Chor testified numerous occasions. on point this testimony established times” “[florty, 50 purchase drugs to Dallas’ home he had been During testimony, his year a half.” course of “about over the occasions, during both separate on at least Dallas Chor identified four bought he examination, whom as the man from cross direct and exchange occurred between following drugs. point, At one and Chor: prosecutor house, with? you did meet

Q. in the who you went When Dallas. A. Dallas. again? you Dallas

Q. And how do know A. That’s Dallas. drugs you purchased that the

Q. person Dallas[?] Is That’s from? Yes,

A. it is. drugs you purchased those person man or the Q. youDo know the from? here, right man Dallas.

A. Yes. This the electronic disagree the Court’s statement I with “objective superior evidence” provided qualitatively agents with the Southwest trial, 25. Three Opinion ¶ admitted all of Justice Department Montana Drug Task Force and Montana drug separate for the two followed protocol as to the testified the officers’ Agent Clark described Reichmand. with transactions against Reichmand: gathering evidence with Chor in involvement location, prearranged at a usually meet with the informant We searched, his time, At that the informant away everybody. from money might or he any items ofcontraband is searched for vehicle phone suspect call to a place sometimes point, At this we have.... device, wire, transmitting or place an electronic or we is then informant, money. some The informant the informant give by agents. a suspect to the location of followed suspect is. It time, goes to wherever At that the informant instance, goes in the it a house. He anywhere. In this could be away. out, We house, transaction, comes back drives makes a location, where, at that meeting a prearranged followhim back to the informant drugs from him. And time, dangerous take the money. His of contraband any items is then searched transmitting wire, electronic is also searched. vehicle device, is then removed. And usually have interview with him, interview, a taped of what occurred during transaction. The officers prearranged meeting with by searching Reichmand Chor and his giving vehicle and Chor money purchase traceable drugs. In way, any money spent or kept, any drugs illicit removed from Chor after the purchase, objective were evidence criminal drug Further, transactions with Reichmand. agents house, followed Chor Reichmand’s surveilled the house while Chor was inside for the necessary time drug purchases, make the followed him back to a prearranged location where drugs confiscated the money, and then interviewed him. All of this was objective, against credible evidence Reichmand. As Schwartz, we did State v. MT 1060,1

P.3d would affirm Reichmand’s convictions on the basis of the other evidence and conclude that the here did not result in miscarriage manifest ofjustice.

Case Details

Case Name: State v. Reichmand

Court Name: Montana Supreme Court

Date Published: Oct 27, 2010

Citation: 243 P.3d 423

Docket Number: DA 09-0057

Court Abbreviation: Mont.