Lead Opinion
delivered the Opinion of the Court.
¶1 William Lawrence appeals from his conviction for felony theft following a jury trial in the First Judicial District Court, Lewis and
ISSUE
¶2 Lawrence raises four issues on appeal. We restate the dispositive issue as follows:
Whether the prosecutor’s comments during closing arguments require reversal under the plain error doctrine?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On April 8, 2014, Lawrence and his brother, Steven Dubois, arrived at Wayne Miller Coins on Last Chance Gulch in Helena, Montana. Lawrence and Dubois entered the shop after being buzzed in through the back door. Lawrence was in possession of coins he wished to have appraised, something he had done previously at Miller Coins. After Wayne Miller, the owner of the shop, informed him that his coins were valueless, Lawrence perused the store while questioning a store employee, Emily Gleason, about some of the items. Meanwhile, Dubois made his way to the back door, apparently intent on leaving the store. While following his brother out of the shop, Lawrence stopped to admire artwork adorning the walls of the hallway. As Lawrence continued to look at the artwork, Dubois grabbed a shipping package containing roughly $10,500 in silver, one-ounce coins and exited the store. Lawrence then started toward the back door. Gleason saw Dubois take the package and hurried to the back of the store to confront Lawrence. After a brief exchange, Lawrence left and got in a car with Dubois, who drove away. Lawrence was apprehended the next day in possession of a backpack containing nearly half of the stolen silver coins.
¶4 Lawrence was charged with theft under § 45-6-301(l)(a), MCA. A two-day trial was held in the First Judicial District Court, Lewis and Clark County. During closing argument, the prosecutor told the jury, “The presumption of innocence that you came into this trial with no longer exists at this point.” Defense counsel did not object. Subsequently, the jury found Lawrence guilty of felony theft and he was sentenced to ten years in prison.
¶5 On appeal, Lawrence raises a myriad of arguments, alleging that the prosecutor committed plain error requiring reversal by stripping Lawrence of the presumption of innocence as well as misstating the law of the charged offense. Further, Lawrence argues that the District Court abused its discretion by not granting a mistrial after the State
STANDARD OF REVIEW
¶6 In general, this Court does not address issues of “ ‘prosecutorial misconduct pertaining to a prosecutor’s statements not objected to at trial.’ ” State v. Aker,
DISCUSSION
¶7 We do not reach the issues regarding the order in limine, the alleged hearsay, or the jury instruction, nor do we reach the question of whether defense counsel’s failure to object to the prosecutor’s statement constitutes ineffective assistance of counsel. Pertinent here, Lawrence argues the prosecutor’s statement regarding the presumption of innocence constitutes plain error requiring reversal and remand for a new trial.
¶8 Whether the prosecutor’s comments during closing arguments require reversal under the plain error doctrine?
¶9 The purpose of the plain error doctrine is to correct an error not objected to at trial that affects the “fairness, integrity, and public reputation of judicial proceedings.” Finley,
¶10 The underlying question here is a simple one: whether a prosecutor stating during closing argument that the presumption of innocence has been removed from the defendant implicates a defendant’s fundamental rights. We cannot overstate the importance of the foundational principle that is the presumption of innocence. It is a bedrock, axiomatic, and elementary tenet of our criminal justice system. State v. Williams,
¶11 This Court has, on numerous occasions, refused to invoke the plain error doctrine because the alleged error did not result in a miscarriage of justice, raise a question as to the fundamental fairness of the proceedings, or compromise the integrity of the judicial process. See, e.g., McDonald, ¶ 17 (concluding that the challenged comment in closing argument did not raise the specter of prosecutorial misconduct necessitating the exercise of plain error review to protect the fundamental fairness of the proceeding); State v. Thorp,
¶13 “Both the Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution guarantee criminal defendants ‘the right to a fair trial by a jury.’ ” Aker, ¶ 24 (quoting Hayden, ¶ 27). Prosecutorial misconduct “may be grounds for reversing a conviction and granting a new trial if the conduct deprives the defendant of a fair and impartial trial.” Hayden, ¶ 27. It is well established that we “ ‘consider alleged improper statements during closing argument in the context of the entire argument.’ ” Aker, ¶ 24 (quoting State v. Makarchuk,
¶14 Therefore, we must determine whether the challenged comment deprived the defendant of a fair and impartial trial. In making this determination, we consider the challenged comment in the context of the trial and the closing argument as a whole. Further, we consider whether the challenged comment violated the defendant’s substantial rights.
¶15 As stated above, there are few principles in our criminal justice system as fundamental as the presumption of innocence. The principle is so foundational that we have recognized “it cannot be evidence, nor can it be introduced in the case, for it is in the case from its inception.” State v. De Lea,
¶16 In our criminal justice system, the presumption has been overcome when the State has presented evidence against a criminal defendant that satisfies a jury, beyond a reasonable doubt, that the defendant is guilty of the crime charged. De Lea,
¶17 It is reasonable and required that both the State and defense counsel jealously guard this principle throughout the entirety of a criminal trial. It is clear from the record that defense counsel failed to object to the challenged statement, yet that does not relieve a prosecutor of his or her duty. The United States Supreme Court has stated that “it is as much [the Prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States,
¶18 Here, it was Dubois, not Lawrence, who physically removed the coins from the store. Lawrence testified on his own behalf, telling the jurors that he did not want to keep the coins his brother had given him and intended to give them back to the coin shop, hopefully without exposing himself to prosecution. However, he was arrested before he could do so. While the jury was free to disbelieve this testimony, the fact remains that under these circumstances, the presumption of innocence was critical to Lawrence’s defense. When the prosecutor told
¶19 Viewing the challenged comment in the context of the surrounding statement provides support for our conclusion that the prosecutor engaged in misconduct requiring relief. In full, the prosecutor stated, “The presumption of innocence that you came into this trial with no longer exists at this point. The instruction doesn’t say that you have to believe what the defendant told you. You can use your common sense in determining what happened in this case.” We infer that the instruction to which the prosecutor refers is Instruction No. 4 which states, in relevant part:
The Defendant is presumed to be innocent of the charge against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict. It is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the Defendant is guilty. The Defendant is not required to prove his innocence or present any evidence.
This preliminary instruction was given by the district court at the commencement of the trial, but was not read again at the conclusion of the evidence.
¶20 The prosecutor is the representative of the State at trial and must be held to a standard commensurate with his or her position. Noting this, the United States Supreme Court has rightly observed that a prosecutor’s improper suggestions and assertions to a jury “are apt to carry much weight against the accused when they should properly carry none.” Berger,
¶21 Our conclusion here finds support in a Tenth Circuit case in which a similar representation was made by a prosecutor during closing arguments to a jury. In Mahorney v. Wallman,
¶22 It is our “inherent to duty ... to protect individual rights set forth in the constitution.” Finley,
CONCLUSION
¶23 We determine that the prosecutor’s comments require reversal of Lawrence’s conviction. Because we grant relief based on prosecutorial misconduct during closing arguments, we do not reach the merits of the additional issues raised by Lawrence on appeal. We reverse and remand for a new trial.
Notes
In State v. Hayden, we reversed and remanded for a new trial based on the prosecutor’s comments. Hayden, ¶¶ 30-33. In Hayden, the prosecutor’s challenged statements included, in part, offering his own opinion as to witness testimony during closing argument, stating that the jury could rely on the detective’s testimony, and improperly testifying to the efficacy ofthe search during closing argument. Hayden, ¶ 32. In summary, we determined that the prosecutor’s comments unfairly added “the probative force of his own personal, professional, and official influence to the testimony ofthe witnesses,” and that the prosecutor’s conduct invaded the role ofthe jury. Hayden,
Concurrence Opinion
concurring.
¶24 I agree with the Court’s determination to review for plain error the prosecutor’s statement regarding the presumption of innocence because that statement implicated Lawrence’s fundamental rights. The statement was improper and objectionable. But I share the Dissent’s view that, when reviewed in context, the prosecutor’s closing argument does not justify reversing the conviction.
¶25 The Court’s reliance on Mahorney is misplaced. Mahorney is distinguishable because in that case “defense counsel vigorously objected both during voir dire and closing argument to the prosecutor’s misconduct and was immediately and categorically overruled in the presence of the jury.” Mahorney,
¶26 The Court also fails to consider the State’s “alleged improper statements during closing argument in the context of the entire argument.” State v. Makarchuk,
The State of Montana has the burden of proving the guilt of the defendant beyond a reasonable doubt. And the State accepts that burden; I think it’s fair. It says: Proof beyond a reasonable doubt is proof of such convincing character that a reasonable person would rely and act upon that in the most important of his or her own affairs.
She then proceeded to explain reasonable doubt and to discuss the evidence and inferences the jury properly should draw from it in order to reach a guilty verdict. I would not reverse the conviction on the basis of the prosecutor’s single “presumption of innocence” comment.
¶27 Despite my disagreement with the Court’s analysis, I join the decision to reverse Lawrence’s conviction because I am convinced that this is the rare case in which the cumulative effect of the errors he has shown on appeal prejudiced his right to a fair trial.
¶28 Lawrence asserts the following additional errors: the prosecutor’s misstatement of the law of the charged offense; defense counsel’s failure to object to the prosecutor’s closing argument; defense counsel’s failure to object to an erroneous mens rea instruction; and defense counsel’s failure to object to hearsay testimony. I would conclude that, when considered as a whole, these errors prejudiced Lawrence’s right to a fair trial.
¶29 The cumulative error doctrine “refers to a number of errors that, taken together, prejudice a defendant’s right to a fair trial.” State v. Novak,
¶30 In evaluating a cumulative error argument based on several enumerated errors, courts
must consider each such claim against the background of the case as a whole, paying particular weight to factors such as the nature and number of the errors committed; their interrelationship, if any, and combined effect; how the district court dealt with the errors as they arose ...; and the strength of the government’s case.*95 The run of the trial may also be important; a handful of miscues, in combination, may often pack a greater punch in a short trial than in a much longer trial.
United States v. Sepulveda,
¶31 Here, over the course of a two-day trial, there were several interrelated errors that had the combined effect of prejudicing Lawrence’s right to a fair trial. During closing argument, the prosecutor implied that because Lawrence had not returned the coins “immediately,” he had committed theft under § 45-6-301(l)(a), MCA. Though made in response to the defense closing argument, this misstated the law, which requires a purpose to deprive the owner of his property. The error, which otherwise could have been a minor one, was compounded by the District Court’s instructions as to the mens rea for theft. The court gave a result-based “knowingly” instruction and a conduct-based “purposely” instruction. This was not a correct statement of the law. Theft is a result-based crime because it requires a “purpose to deprive” the owner of property. See State v. Shively,
¶32 During the trial Officer Zapata testified that another officer advised him that Lawrence “was possibly in Stewart Homes trying to sell stolen coins from the theft.” The officer’s hearsay testimony was the only evidence about any intent Lawrence may have had to sell the stolen property. Defense counsel did not object. Certainly, there is nothing constitutionally impermissible about the admission of hearsay evidence. Nor is there a mandate for counsel to raise every objection that might have merit. But the State has not argued that any hearsay exception applied, and an objection surely would have been sustained. It was an important piece of evidence, particularly in light of the defense theory—that Lawrence had not acted with the purpose of depriving the owner of the coins. Lawrence was arrested less than two days after the theft occurred. He claimed at trial that he helped Dubois remove the stolen coins from the home of an acquaintance because there were children present. He testified that he was trying to figure out a way to get the coins back to Wayne Miller’s shop without incident because he knew and respected Miller’s wife, who runs a homeless
¶33 Had any of the claimed mistakes been isolated in an otherwise error-free trial, none would justify reversal. But cumulatively, they resulted in a trial in which inadmissible evidence was the only proof of an element of the offense on which the jury was improperly instructed and which the prosecutor misstated in argument, along with her unartful short-circuiting of the presumption of innocence. There was no plausible strategic reason for counsel’s failure to seek exclusion of harmful evidence or to propose a correct instruction on mental state when it was a key theory of the defense. See State v. Kougl,
I do not include in this list Lawrence’s argument regarding a witness’s passing reference to “booking photos.”
Dissenting Opinion
dissenting.
¶34 The statement referenced by the majority was made as part of a closing argument, the summation made by the attorneys following the conclusion of the presentation of evidence to the jury. The statement was made at the end of that closing argument, following her summation of all the evidence submitted.
¶35 Taken in context of the entire proceeding, it is clear that the prosecution was not suggesting that the defendant was not entitled to the presumption of innocence, but rather making the argument that the evidence she had just summarized would overcome that presumption of innocence.
¶36 The jurors were properly instructed by the District Court Judge. Instruction No. 4 provided:
The Defendant is presumed to be innocent of the charge against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict. It is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the Defendant is guilty. The Defendant is not required to prove his innocence or present any evidence.
Significantly, Instruction No. 2 provided:
You should take the law in this case from my instructions alone.*97 You should not accept anyone else’s version as to what the law is in this case. You should not decide this case contrary to these instructions, even though you might believe the law ought to be otherwise. Counsel, however, may comment and argue to the jury upon the law as given in these instructions.
¶37 Instructions are not only read aloud by the judge, but they are provided to the jury in writing to be taken into deliberations for the purpose of review by the jurors. They clearly provide that jurors should take the law from the instructions alone, and not accept other versions of what the law is. The prosecutor’s closing statement here was a comment on the evidence presented and not intended to counter the law as it was clearly given in the District Court instructions.
¶38 As the majority notes, the plain error doctrine should be used sparingly, and only in cases where the alleged error may “result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the proceeding, or compromise the integrity of the judicial process.” McDonald, ¶ 8. Viewed in context of the entire trial,
¶39 Closing argument is a unique portion of a trial. It is an opportunity for the attorneys to present the case as they see it. And by its very nature, it is argument—not evidence. Jurors understand the function of argument. The lawyers in the case understand the function of closing argument and objecting in a closing argument is seldom necessary.
¶40 For the reasons stated above, I dissent.
The prosecutor also made it clear in her final closing argument that the State has the burden of proving the charges beyond a reasonable doubt, and that they readily accept that challenge.