No. 87-217
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1987
THE STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-VS-
PHIL WILKINS,
Defendant and A p p e l l a n t .
APPEAL F O :
R M D i s t r i c t Court of t h e N i n e t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f L i n c o l n ,
The Honorable Nat A l l e n , Judge p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
P h i l W i l k i n s , p r o s e , Deer Lodge, Montana
F o r Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
B e t s y Brandborg, A s s t . A t t y . G e n e r a l , Helena
Susan Loehn, County A t t o r n e y , L i b b y , Montana
S c o t t B S p e n c e r , Deputy County A t t o r n e y , Libby
S u b m i t t e d on B r i e f s : Sept. 1 0 , 1987
Decided: November 4 , 1987
Filed: -
NOV 4 1987
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Following trial by jury in the District Court of the
Nineteenth Judicial District, Lincoln County, defendant was
convicted of two counts of criminal sale of dangerous drugs.
We reverse.
Defendant raises the following issues on appeal:
1. Did the District Court err when it informed the
defendant of his right to testify in front of the jury?
2. Did the District Court correctly admit hearsay
evidence of other acts?
3. Was the State's evidence sufficient to prove that
the substance sold by the defendant was marijuana?
We find the first issue dispositive.
As a result of an undercover drug operation, the
defendant was charged by information with two counts of
criminal sale of dangerous drugs. At arraignment, the
defendant indicated he would represent himself. Although the
District Court granted the defendant's request to proceed pro
se, David Harman was appointed standby counsel. Harman
assisted the defendant with the preparation and presentation
of his case.
During trial, the District Court engaged in the
following exchange with the defendant before the jury:
MR. HARMAN: We have no further witnesses and we
rest our case. Is that right, Mr. Wilkins?
MR. WILKINS: Yes.
THE COURT: You don't wish to take the stand
yourself?
MR. WILKINS: No, Your Honor.
THE COURT: You have a right to.
MR. WILKINS: Thank you.
THE COURT: You have a right to do that. You
choose not to; is that right?
MR. WILKINS: That is right.
THE COURT: Do you have any rebuttal, Mr. County
Attorney?
The defendant did not object to the remarks of the District
Court. Nor did he move for a mistrial.
Following settlement of instructions, the District Court
raised the issue of whether there should be an instruction on
the defendant's failure to testify. A curative instruction
was subsequently offered by the defendant and given by the
District Court.
As a general rule, this Court will not entertain issues
not raised at trial. State v. St. Goddard (Mont. 19871, 734
P.2d 680, 44 St.Rep. 551. If a defendant fails to lodge a
timely objection to the remarks and conduct of the presiding
judge, he will not be heard on appeal. State v. Martin
(Mont. 1387), 736 P.2d 477, 480, 44 St.Rep. 804, 808.
Contrary to the defendant's assertion, the failure to object
in a timely manner does in fact constitute a waiver of any
alleged error. Section 46-20-104, MCA. Allegations that
objection would be futile or contrary to modern defense
tactics are without merit.
General rules are not without exception, however. In
Halldorson v. Halldorson (1977), 175 Mont. 170, 573 P.2d 169,
we recognized that appellate courts have a duty to assure
that the substantial rights of the parties have not been
infringed. 175 Mont. at 174, 573 P.2d at 172. The plain
error doctrine provides a remedy in such situations to
prevent manifest injustice. When the substantial rights of a
defendant are involved, the lack of timely objection does not
preclude us from exercising our power of discretionary review
to examine any error at the trial court level. State v.
Harris (Mont. 1984), 682 P.2d 159, 162, 41 St.Rep. 866, 870;
Rule 103 (d), M.R.Evid.
The power of discretionary review is to be employed
sparingly. As the Commission Comments to Rule 103, M.R.Evid.
indicate, the plain error doctrine "will be used in
exceptional cases and should not be relied upon by counsel."
We will invoke plain error only when it is necessary to
insure a fair and impartial trial. Halldorson, 175 Mont. at
174, 573 P.2d at 172. The case at hand is such a case.
Art. 11, § 25 of the Montana Constitution guarantees the
right against self-incrimination. Inherent in the concept is
the right of a criminal defendant to refrain from taking the
witness stand with impunity. State v. Gonyea (Mont. 1987),
730 P.2d 424, 427, 44 St.Rep. 39, 43. "For comment on the
refusal to testify is a remnant of the 'inquisitorial system
of criminal justice which the [right against
self-incrimination] outlaws. " Griffin v. California (1965),
380 U.S. 609, 614, 85 S.Ct. 1229, 1232, 14 L.Ed.2d 106, 109.
"It cuts down on the privilege by making its assertion
costly." Griffin, 380 U.S. at 614, 85 S.Ct. at 1233, 14
L.Ed.2d at 110.
The defendant contends that the court's remarks
concerning taking the stand infringed on his right to remain
silent. The test to be applied is whether the court's
remarks were "manifestly intended or [were] of such character
that the jury would naturally and necessarily take it to be a
comment on the failure of the accused to testify." State v.
Anderson (1970), 156 Mont. 122, 125, 476 P.2d 780, 782,
citing Knowles v. United States (10th Cir. 1955), 224 F.2d
168, 170. Upon a showing that there is a reasonable
possibility that the comments complained of might have
contributed to the conviction, reversible error will be
presumed. See Chapman v. California (1967), 386 U.S. 18, 24,
87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710. In order to rebut
the presumption, the State must prove beyond a reasonable
doubt that the error did not taint the conviction. State v.
Gladue (Mont. 1984), 677 P.2d 1028, 41 St.Rep. 249.
We find no evidence that the District Court manifestly
intended to comment on the defendant's failure to take the
stand. Quite to the contrary, the record is replete with
examples of the District Court making every effort to ensure
that the defendant's decision to represent himself did not
work to his detriment. The District Court's inquiry
represented an attempt to ensure that the defendant, an
Australian citizen here on a one year visa, was fully aware
of his right to testify.
However, we are unable to find, beyond a reasonable
doubt, that the District Court's remarks were harmless error.
The exchange clearly emphasized the defendant's failure to
take the stand. "What the jury may infer, given no help from
the court, is one thing. What it may infer when the court
solemnizes the silence of the accused into evidence against
him is quite another." Griffin, 380 U.S. at 614, 85 S.Ct. at
1233, 14 L.Ed.2d at 110. The District Court's comments had
the effect of focusing the jury's attention on the
defendant's silence at a late stage of the trial. We are not
convinced that the curative instruction remedied the error.
The judgment of the District Court is therefore reversed and
remanded.
Although we do not reach the remaining issues, judicial
economy demands comment. We caution the District Court
concerning the testimony of Detective Bernall. At the time
he testified on recall that the defendant was suspected of
selling drugs, it had not been alleged that the undercover
agent had fabricated his story nor had the defendant yet
called his character witnesses. _r -
/
Justice
We Concur: /
@23&4 Justices
Mr. Justice L. C. Gulbrandson, dissent-ing.
I respectfully dissent.
In my opinion, the legal issue upon which the majority
bases its reversal is controlled by State v. Martin (Mont.
1987), 736 P.2d 477, 480, 44 St.Rep. 804, 808, and
5 46-20-104 ( 2 1 , MCA.
There was no objection made to the trial judge's
inquiry until the filing of appellant's brief with this
Court. There was no request for an in-chambers objection to
the inquiry, no motion for dismissal or new trial, and in
fact two curative jury instructions were prepared by defense
counsel and given by the trial judge.
Those instructions read as follows:
INSTRUCTION NO. 12
It is a constitutional right of a
defendant in a criminal trial that he
may not be compelled to testify. You
may not draw any inference from the fact
that he does not testify. Further, you
must neither discuss this matter nor
permit it to enter into your
deliberations in any way.
INSTRUCTION NO. 13
In deciding whether or not to testify,
the defendant may choose to rely on the
state of the evidence and upon the
failure, if any, of the State to prove
beyond a reasonable doubt every
essential element of the charge against
him, and no lack of testimony on the
defendant's part will supply a failure
of proof by the State so as to support a
finding against him on any such
essential element.
I would not invoke the plai
facts of this case.