*1 MONTANA, STATE OF Appellee, Plaintiff WAGNER, WILLIAM CHRISTOPHER Appellant. Defendant 08-0495. No. DA Briefs June 2009. Submitted August Decided 2009. MT 256. Wheelis, Appellant: Defender; Jim Chief Appellate
For Koan Mercer, Appellate Defender, Assistant Helena. *2 Appellee: Bullock, Attorney General; Hon. Steve
For Montana Mattioli, General, Helena; Mark Attorney W. Assistant Marty Lambert, Attorney; County Whipple, Gallatin Todd Deputy County Attorney, Bozeman. Opinion
CHIEF JUSTICE McGRATHdelivered the theof Court. Christopher Wagner (Wagner) appeals William from a ¶1 verdict, judgment Eighteenth and sentence Judicial District Court, County, convicting Gallatin attempted deliberate with weapon. homicide a We reverse and remand for a new trial. sole appeal issue on is whether repeated trial statements Wagner invoking made after created an that constituted
BACKGROUND gun fight This case from a Wagner arises in which and Michael (Peters) (Lark) Melody Peters shot each other. Peters dated Lark from through Bozeman, they 2000 in and remained friends afterwards. Wagner Lark dated in Colorado for about four months in the summer travelling and then months, for a few she lived with Wagner for about five months. The relationship deteriorated while they together. began lived Lark to fear Wagner because he was often angry, paranoid, methamphetamine, under the influence of guns shot property, around his and harming discussed himself others. Eventually Lark ended the relationship and moved out. Wagner Lark testified that evening assaulted her the of October
8, 2005, after their relationship Wagner had ended. approached her from and up behind knocked her She out. woke outside with her head inside, bleeding. ears She went Wagner but was there took phones away her she help. tried call for Wagner eventually agreed take her to friend’s house. Lark was later diagnosed with a skull fracture and injury. reported traumatic brain The doctor that injury her head was caused hitting instrument her head three or more times. flew Peters to Denver to Lark in hospital visit following assault. felony The State of charges against Colorado filed assault Wagner. on bail with a was released charges pending, Wagner
While Wagner removed the GPS tracker his ankle. tracker around GPS Colorado. fled Curt he went name Wagner came to Montana where aliases) (and that had people pregnant and told wife other
Warren Wagner private hired early January died in car accident. three investigator provided investigator to find Peters’ address. looking went Wagner in Bozeman. About addresses John, father, the door and home. Peters’ answered for Peters at his told John to tell Peters Wagner Peters not home. told was friend, Jim, town. John asked passing through When from, Kalispell. John replying hesitated he was before where man, a vagrant, who looked like thought that it was unusual very day. Later recounted the his house on a cold John had walked to Peters, Kalispell. Peters who did not a Jim from incident know due Wagner. Peters was afraid concerned the visitor was became previous assault had attack Lark and boyfriend. Peters renewed his ex-girlfriend’s and stabbed beaten picture him a permit and asked Lark email weapons concealed positively picture confirm from Wagner. Peters’ father could *3 Wagner. who had visited was whether the man 17, 2007, house around noon. As he January On Peters left his truck, away person walking noticed a to drive in his Peters started he flagged him. The man Peters down and down street towards asked Peters if he had seen rolled down the window to talk. man gun figured a him. dog, pulled a little white but then on Peters intending a Wagner, “deadly person” man must be whom he viewed as Wagner kill or him. ordered Peters to scoot over. Peters to torture handle, so, grabbed to do the door Peters shot began Wagner but shots, Wagner chest, in the at him. Peters fired two which hit before Peters, jammed. Wagner hitting fired at him three times: gun his then cheek, abdomen, puncturing and hand. grazing piercing his his his ran out the and into his house. His escaped passenger Peters door by had Wagner police father called but fled time arrived. told the what occurred. willingly police Peters Wagner a version At-trial, Wagner provided different of events. him with Lark. sought help claims he Peters in order to reconnect out that he returned to Peters’ house to find whether Wagner testified any spoken he had with before could him the older man house, he approached how to contact Peters. As information on drive driveway a truck out of the and towards Wagner noticed back a to the driver and the truck Wagner gave him. claimed he little wave stopped. According Wagner, gun then pointed driver out window and fired two at him. testified Wagner shots he shot he shoot out of attempting gun back was Peters’ hand. twice, away Although Wagner had been shot he was able to walk Wagner stranger Wagner from the scene. Later asked a for a ride. told he injured falling Wagner the man that had himself on the agot ice. Filling storage ride to the and then to a had Station walked unit he there, Wagner From nearby. agreed rented called friend who to pick up. Wagner him told his friend that had been in he stabbed a bar Wagner morning. tended to his wounds apartment friend’s then called another to pick up. Wagner stayed friend with his days, for got Greybull, friend Ennis a few then a ride to Wyoming, stayed acquaintance. where he with another Wagner was arrested Greybull days January few later on Cindy Detectives Crawford Tom Pallach the Gallatin
County Greybull Sheriffs Office Wagner travelled to to interview as part investigation shooting. their The detectives met with Wagner January advising After of his Miranda rights, Wagner indicated he to speak lawyer, that wanted to a saying that he want didn’t hole. referenced this comment four times at Wagner’s May statement,
trial in 2008. In opening said, the prosecutor “On 26th, 2007, upon being detectives, interviewed police and asked comment, whether he’d like to simply says, make a dig myself deeper don’t want to Then during hole.” the State’s case- in-chief, asked Detective Crawford on direct any examination whether statements or admissions being advised of rights. his Miranda replied, Crawford ‘Mr. something stated effect where he wanted attorney first don’t to dig myself want a deeper hole.” Later the prosecutor ended cross-examination of Wagner questioning him statement:
Q. Okay. you arrested, When told the Detectives that you didn’t want dig yourself hole, to talk to ‘em and a deeper right?
A. Yes.
Q. today you And explained nothing say that as I going was going help you. was Yeah,
A. there point saying was no anything. Q. No point telling back 2007? going help A. It wasn’t change anything.
Q. So, months, later, 17 or 16 you months this is when tell this
5 story today?
A. Yes. stated: closing Finally, argument, in his you have to wrong. So right somebody Somebody was who, from you Michael Peters Do believe you choose who believe. first, I shot him guy. very yeah, shot beginning, Defendant, who doesn’t Or, why. do believe and here’s hole. want object prosecutorial these repeated did not
Wagner’s counsel comments. OF REVIEW
STANDARD discretionarily review claimed errors may This Court defendant’s fundamental implicate criminal made, failing “where objection was contemporaneous if no even miscarriage of may result in a manifest error review claimed fairness may question justice, leave unsettled may compromise trial or proceedings, 197, 254, Godfrey, MT judicial process.” State v. Finley, Mont. (citing P.3d 166 State v. (1996), MT grounds by Gallagher, State v. overruled other 817). 215, 19 power of common P.3d We use our inherent plain sparingly. law error review
DISCUSSION trial prosecutor’s repeated Whether the comments at invoking his Miranda created statements plain that constituted inference object prosecutor’s repeated to the Since did trial, requires of the common law application comments at our review Wagner argues that the doctrine. fairness ‘leave unsettled the fundamental trial” using rights against invocation of Miranda impermissibly credibility him to attack his create and deliberate use of repeated claims State’s under right invocation of the to silence warrants reversal agree. review. We privilege against self- The United States Constitution’s using State from process prohibit
incrimination and to due against him at trial. U.S. defendant’s invocation of Const, Supreme Court described V, XIV. United States amends. as hallmark of our “the privilege against self-incrimination *5 6
democracy,” that: explaining
the underlying constitutional foundation is the privilege respect government-state or dignity federal-must accord to the citizens. of its To maintain ‘fair state-individual balance,” load,” require government ‘to shoulder the entire respect inviolability of the human our personality, accusatory system justice of criminal demands that government seeking punish produce an individual the evidence against labors, him by independent its own rather than cruel, simple expedient compelling of it from his own mouth. sum, privilege only is fulfilled the person guaranteed is the right ‘to remain silent unless he chooses to unfettered exercise his own will.” (1966) Arizona, 436, v. 460, 1602, Miranda 384 U.S. S. Ct. 86 1620 (internal omitted). citations The Court Supreme required procedural safeguards, in the warnings, form of Miranda to protect these rights from constitutional the inherent coercion of custodial interrogation. safeguards have concluded that without proper process
in-custody interrogation persons suspected accused crime inherently contains compelling pressures which work to undermine the individual’s will to resist and to compel speak where he freely. would not otherwise do so In order to combat these pressures permit and to a full opportunity to against self-incrimination, exercise the privilege the accused must adequately be effectively apprised rights and the rights exercise of fully those must be honored.
Miranda,
impeachment use of a defendant’s after receiving silence Miranda warnings was fundamentally unfair because Miranda inform warnings person of his right to remain silent and assure him that silence be against 610, 618-19, 96 2240, 2245 will not used him. 426 U.S. S. Ct. (1976). Supreme Court held that “the use for impeachment purposes petitioners’ silence, at the time of arrest and after receiving warnings, Miranda Due violated the Process Clause Fourteenth Doyle, Amendment.” 426 at U.S. 96 S. Ct. at Underlying Doyle is principle that Miranda warnings contain an implicit exercising assurance that carry penalty will no and that ‘it fundamentally would be and a deprivation unfair of due process person’s to allow the arrested silence to be used impeach explanation subsequently Doyle, offered at trial.” 426 U.S. at S. Ct. at 2245. Doyle implicates has held This Godfrey, can warrant review. (1996); 1033, 1038 Sullivan, 32-33, P.2d
24; State v. error, Doyle the context of Mont. at P.2d 216. In Finley, 276 is is when the Court appropriate error review reversal under an inference created firmly “prosecutor’s convinced that the remaining receiving for silent after 38; alleged see also crime.” defendant 36-37, Sullivan, 280 Mont. at P.2d at *6 Sullivan, prosecutor v. held In State Court post- he on Doyle commented Sullivan’s committed case-in-chief, statement, opening the State’s during Miranda silence at P.2d at argument. closing separate made in the State’s conclude that the four Shaw, and statement, during testimony of Detective opening closing argument regarding post- Sullivan’s during State’s doubt. beyond silence not harmless reasonable Miranda were testimony give to These comments and that Sullivan declined of his being to enforcement officers after advised statement law By process. to due Miranda violated Sullivan’s comments, for the making these the State created inference that, by remaining having silent after been read his of deliberate homicide. Sullivan Sullivan, The reversed at 1039-40. Court The those in based on this facts here are similar to Sullivan, prosecutor Wagner’s post- here used Sullivan. As phases during opening silence in all trial: Miranda statement, case-in-chief, Wagner, and his cross-examination closing argument. to requested invoked his Miranda she was
speak
attorney.
with an
Detective Crawford testified that
Miranda,
present
rights per
[sic]
Palash
read him his
when ‘Detective
something
to
Mr.
stated
to the effect where wanted
dig myself
first and he
don’t want to
attorney
Wagner’s
hole.” This was an effective invocation of
deeper
rights.
Supreme
‘tw]ith
United
has explained,
The
States
Court
warnings ‘silence,’
point
that silence
respect
post
-Miranda
we
out
muteness;
only
mean
it includes the statement of a desire
does not
silent,
attorney
desire
silent until an
remain
as well as of a
to remain
284, 295n.
Wainwright Greenfield,
has
474 U.S.
been consulted.”
(1986).
106 S. Ct.
640 n.
Doyle,
Supreme
Twjhat’s
understood “silence” to include the
response
defendant’s
Doyle,
this all about?”
an inference of prosecutor The relied Wagner’s failure to tell his version of events until trial as guilt. evidence of his On cross- examination, prosecutor asked Wagner about his initial interview with the police:
Q. point telling No back in January of 2007? going A. It wasn’t to help change anything.
Q. So, months, later, or 16 months this is when tell this story today?
A. Yes. Clearly prosecutor was overreaching. His questions designed that, to create an declining his version of events after invoking his Miranda rights, Wagner guilty. Further, implied that Wagner’s post Miranda statement that he didn’t want deeper hole was an admission of prosecutor ended his cross-examination of by enumerating the multiple lies that Wagner told people in his search for Peters and after shooting. elicited at least 21 acknowledged lies told by Wagner. This line questioning was sufficient to undermine *7 Wagner’s credibility in jury. However, front of the the went by impermissibly too far implying Wagner’s failure to tell his earlier or his comment digging about a deeper hole was evidence of his This inference ¶21 of caused actual prejudice to Wagner constituting plain error.
A fundamental aspect of “plain error,” is that the alleged error indeed must “plain.” be In a this, case such as it should leave one firmly convinced, as we were in Sullivan, prosecutor’s comments created an jury inference for the by remaining silent after receiving the defendant of the alleged crime. ¶ we hold that the conduct raises
questions regarding the fairness by of the trial violating Wagner’s process due privilege against self- incrimination. Reversed and remanded for a new trial consistent with
opinion. LEAPHART, NELSON, COTTER, WARNER
JUSTICES MORRIS concur. RICE, dissenting.
JUSTICE may result review failure do so plain exercise error “when unsettled the fundamental miscarriage justice, leave in manifest integrity judicial compromise the proceedings, the fairness of 62,MT Lacey, process.” ¶ State omitted). (citation here. reasons exist I do not believe these given by explanation of the case I affirm on the basis would case the facts of this explain 3-9. The cannot even
Court in ¶¶ lies, telling a such as his ludicrous tale of exposing Wagner’s without in a bar had been stabbed shooting incident that ‘he friend after believe, jury and no jury 9. The did not morning.” Opinion, law, he loaded would, that, run from the Wagner’s claim while on the find out the older gun simply house “to whether and went Peters’ any on how could information spoken man he had with before Peters,” given history of sadistic particularly Wagner’s to contact Opinion, his victims. vengeful violence toward by idly object sat and failed to while challenges. brought references the comment he now Had multiple making single objection, to the Court’s attention issue District objection and instructed court could have sustained inaction, gets own about the comment. now the benefit Regardless, a new trial strategy employed. perhaps purposefully overwhelming against light should not be his reward in evidence “miscarriage justice” occurred here for which him. No be necessary. is victims must sometimes inconvenienced review While judicial can be process a re-trial so that preserved, only “miscarriage justice” putting in this case is showing utterly victims through the trauma of a second unbelievable assertions. review, grant and would affirm. would