*1 MONTANA, The STATE OF Respondent, Plaintiff and Appellant. WILKINS, PHIL Defendant No. 87-217. Sept. Submitted on Briefs 1987. Decided Nov. 1987. Rehearing Denied 1987. Jan. P.2d 588. *2 Wilkins, Phil pro se. Atty. Gen., Greely, Betsy Atty. Gen.,
Mike Brandborg, Asst. He- lena, Loehn, Atty., Spencer, Deputy Atty., Susan Co. B. Scott Co. Libby, plaintiff for respondent. and
MR. Opinion JUSTICE SHEEHY delivered the the Court. Following by jury trial in the District Court of Nineteenth Ju- District, dicial Lincoln County, defendant convicted of two was counts of dangerous drugs. criminal sale of We reverse.
Defendant the following appeal: raises on issues 1. Did the District Court err his when informed the right testify to jury? front of the
2. Did correctly the District hearsay Court admit evidence of other acts?
3. Was prove the State’s evidence sufficient to the substance that by sold marijuana? defendant was We dispositive. find the issue first
As a result drug operation, of an undercover defendant was charged by danger- information with two counts of criminal sale of drugs. arraignment, ous At he would re- the defendant indicated granted present Although the District the defend- himself. appointed request proceed pro was ant’s to se. David Harman prepara- standby assisted the defendant with counsel. Harman presentation his case. tion trial, following exchange engaged in the
During the District Court jury: before the with the defendant we rest our “MR. We no further witnesses and HARMAN: have right, Is Mr. case. that Wilkins?
“MR. Yes. WILKINS: yourself? wish take the stand
“THE COURT: You don’t No, “MR. Honor. WILKINS: Your “THE You to. COURT: have you. “MR. WILKINS: Thank to; choose not is
“THE You to do that. You COURT: have right? right. That “MR. WILKINS: rebuttal, County Attorney?” you
“THE Do have Mr. COURT: Court. object remarks of the District The defendant did for a Nor did he move mistrial. instructions,
Following the District Court raised the settlement on defendant’s issue of whether there should be an instruction testify. subsequently offered failure to A instruction was curative *3 given the the District Court. defendant and rule, general this will not entertain issues not As a (Mont. 1987), 158,] v. Goddard Mont. raised trial. State St. at [226 680, timely lodge St.Rep. 44 If fails to a 734 P.2d 551. a defendant judge, will presiding he objection to the remarks and conduct of the (Mont. 1987), Mont. Martin appeal. not be heard on State v. [226 477, 480, 804, Contrary 491,] to the defend St.Rep. P.2d 44 808. 736 assertion, in object timely does fact in a manner ant’s the failure to 46-20-104, MCA. any alleged error. constitute a waiver of Section de contrary to modern Allegations objection futile or would be fense tactics are without merit. In Halldor exception, however. rules are not without
General
169,
recog
170,
(1977),
we
son v.
573 P.2d
Halldorson
175 Mont.
appellate
duty
that the substan
nized that
have
to assure
courts
a
174,
infringed. Mont. at
rights
parties
175
tial
of the
have not been
remedy in such
provides
plain error
81 (Mont. amine State v. Harris error at the trial court level. 1984), 511,] 159, 162, 866, 870; St.Rep. 41 Mont. 682 P.2d Rule [209 103(d), M.R.Evid. power discretionary employed spar
The review to be ingly. 103, As the Commission Comments to Rule M.R.Evid. indi cate, plain exceptional the error doctrine “will be used in cases and upon by plain should not be relied counsel.” We will invoke error only necessary when it is impartial to insure a fair and trial. Halldorson, 174, 175 Mont. at P.2d 573 at 172. The case at hand is such a case. II,
Art.
Section 25
guarantees
of the Montana Constitution
right against
concept
self-incrimination.
Inherent
is the
of a criminal
taking
defendant to refrain from
witness stand
(Mont.
impunity.
1987),
with
Gonyea
State v.
56,]
Mont.
730
[225
424, 427,
39,
P.2d
St.Rep.
43. “For comment on the refusal to
testify is a
‘inquisitorial system
remnant of the
justice’
of criminal
which
[right against
outlaws.”
v. Cali
self-incrimination]
Griffin
(1965),
609, 614,
1229, 1232,
106,
380 U.S.
85 S.Ct.
14 L.Ed.2d
fornia
109. “It cuts down
privilege by
on the
making
costly.”
its assertion
Griffin,
614,
1233,
The defendant contends that the concerning court’s remarks taking infringed stand on his to remain silent. The test to applied be is whether the court’s “manifestly remarks were intended or of such jury character that the naturally [were] would and neces sarily take it to be a comment on failure of the accused to tes tify.” (1970), State v. 122, 125, Anderson 780, 156 Mont. 476 P.2d 782, citing (10th 1955), Knowles v. United States Cir. F.2d Upon 170. showing possibility that there is a reasonable that the complained comments might conviction, have contributed to the presumed. reversible error will Chapman be See California (1967), 18, 24, 824, 828, 386 U.S. 87 S.Ct. In 17 L.Ed.2d 710. order presumption, to rebut the prove beyond the State must a rea sonable doubt that the error did not State v. taint the conviction. (Mont. 1984), Gladue 174,] St.Rep. Mont. 677 P.2d [208 249.
We find no manifestly evidence that the District Court tended to comment on the Quite defendant’s failure to take the stand. *4 contrary, the replete examples the record is with of the District making every Court effort to ensure that the defendant’s decision to represent himself did not work The District to his detriment. inquiry represented Court’s attempt an to ensure that the defend- 82 visa,
ant, fully year of an on a one was aware Australian citizen here testify. his to find, doubt,
However,
beyond
that
a reasonable
we are unable
exchange
The
error.
the District Court’s remarks were harmless
clearly
“What
emphasized the defendant’s failure to take the stand.
infer,
court,
jury may
help
thing.
no
from
one
What
given
the
the
is
may
when
the
of the accused
is
infer
the court solemnizes
silence
614,
Griffin,
against
quite
him is
380 U.S. at
into evidence
another.”
1233,
85 S.Ct.
MR. JUSTICE respectfully I dissent. its my upon majority bases opinion, legal
In which issue (Mont. 1987), Mont. by State Martin [226 reversal is controlled 808, 6-20-104(2), MCA. 463,] St.Rep. P.2d inquiry objection judge’s until There no to the trial was made request for There no filing appellant’s with this Court. was brief or inquiry, for dismissal no motion objection an in-chambers prepared trial, jury were new and in two instructions fact curative given by judge. defense counsel and the trial as Those instructions read follows: NO. “INSTRUCTION that in a trial criminal “It is a constitutional of a any inference testify. may not may compelled to You draw he not be Further, neither testify. you must from the fact he does not *5 permit your this into discuss matter nor to enter deliberations way. any
“INSTRUCTION NO. deciding testify, may “In not to whether or choose rely failure, upon any, on the if state of the evidence and prove beyond every State reasonable doubt essential element him, charge against testimony and no lack of on the defendant’s part supply proof by will State support a failure so as to finding against him such on essential element.” plain
I would not invoke the error under the this doctrine facts of case.