No. 92-342
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
THE STATE OF MONTANA,
Plaintiff and Respondent,
v.
WILLIAM JOHN RODGERS,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Sanders,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender Office,
Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General,
Patricia J. Jordan, Assistant Attorney General,
Helena, Montana; Robert Slomski, Sanders
County Attorney, Thompson Falls, Montana
Submitted on Briefs: November 24, 1992
Decided: March 30, 1993
Filed: N!ApL3 fi 7993
Justice Terry N, Trieweiler delivered the opinion of the Court.
Defendant William John Rodgers was convicted by a jury in the
Twentieth Judicial District Court, Sanders County, Montana, of
felony theft for the unauthorized taking of property valued in
excess of $300 from Burtch Construction with the intent to
permanently deprive the owner of his property. Rodgers appeals his
conviction. We aff i m .
There are four issues on appeal:
1. Was there sufficient evidence presented at trial to
support a finding that Burtch owned the property that Rodgers was
charged with stealing?
2. Is the issue of prosecutorial misconduct barred by the
contemporaneous objection rule?
3. Was there an illegal search of the defendant's home?
4. Was defendant denied his constitutional right to
effective assistance of counsel?
In February 1990, Richard L. Burtch, owner and operator of
Burtch Construction, and William J. Rodgers orally agreed to become
partners in a secondhand store business. The two men planned to
construct a new building to house the store and to locate it on
Burtch Construction property. As his contribution to the
partnership, Burtch furnished the land, construction materials,
laborers, and money for the secondhand store building (referred to
as Shop 2). Rodgers supplied h i s labor.
From February 1990 to April 1991, Rodgers worked on the
construction of Shop 2. With Burtch's permission, Rodgers used
tools and supplies owned by Burtch Construction to build the store.
Rodgers had a key and unlimited access to tbe Burtch Construction
property and tools.
In late April 1991, Rodgers stopped working on the building
and quit the partnership. The day after Rodgers withdrew, Burtch
and his foreman went to Shop 2 and noticed there were numerous
tools missing. Burtch contacted the sanders County Sheriff's
Office to report the missing items. In accordance with the
sheriff s instructions, the Burtchs ' began to develop a list of
missing items.
In late August 1991, Burtchtsdaughter, Tina, went to Rodgers'
home to inquire about a green washer and dryer set that she had
been promised by her parents and that had been stored in Shop 2.
~uringher visit, Tina observed a green washer and dryer set at
Rodgerss residence. When asked if he knew where her parentss
washer and dryer set was, Rodgers told Tina that he had disposed of
it at a junk pile on Burtch Construction property. Tina and her
father could not find the set in the junk pile.
In September 1991, Tina reported the missing washer and dryer
to the sheriff's office. Based on Tina's information, Deputy
Sheriff Perry Mock determined he had probable cause to search
Rodgerst residence. The sheriff was unable to obtain a search
warrant at this time because the county attorney was on vacation.
Therefore, the sheriff asked Rodgers directly for permission to
search his house. Rodgers gave his consent to Deputy Mock.
In his search of Rodgersl house, Deputy Mock discovered
several items which he was able to identify as property which
belonged to Burtch. When Deputy Mock opened a cabinet drawer and
found a staple gun with the name ltBurtchll
stamped on its surface,
he arrested Rodgers for theft.
Deputy Mock enlisted the assistance of Burtch and his family
in an effort to identify more of their property. The Burtch family
and one Burtch Construction employee arrived to help. Deputy Mock
advised the group not to remove any items, but to find items
allegedly belonging to them for the deputy to photograph and
catalog.
The search team moved to the residence of Lloyd Mikkelson,
Rodgersl brother-in-law. Mikkelson gave the group permission to
search his woodshed. Deputy Mock found several tools in the shed
with the name "Burtchtlengraved on them. In total, Deputy Mock
seized two pickup loads of tools, materials, and appliances from
the Rodgers and Mikkelson properties. The value of the two loads
was in excess of $300.
On November 21, 1991, Rodgers was charged by information with
the crime of felony theft in violation of 5 45-6-301(1) (a), MCA.
At trial, Burtch, his family, Burtch Construction employees, and an
appliance repairman identified many of the 60 exhibits introduced
as belonging to Burtch. When Burtch could not positively identify
a tool or material as his own, he emphasized that he knew he "had
one like it," but that it was now missing.
Rodgers' son, Keith Rodgers, testified on behalf of his father
at trial. During the State's closing argument, the Prosecutor
characterized Keith's testimony as a deliberate lie. The
Prosecutor also told the jurors that defendant Rodgers lied to
their faces. Defense counsel for Rodgers did not object to the
Prosecutor's comments during closing arguments. On March 3, 1992,
the jury found Rodgers guilty of felony theft.
I.
Was there sufficient evidence presented at trial to support a
finding that Burtch owned the property that Rodgers was charged
with stealing?
On appeal, Rodgers asserts the State failed to prove that he
possessed property owned by Burtch with a value greater than $300,
and therefore, the State failed to prove a necessary statutory
element for a felony theft charge, pursuant to 5 45-6-301(6) (b),
MCA. Rodgers contends that Burtch's failure to positively identify
some items was evidence that Burtch was not the owner of those
items. We disagree and conclude that there was sufficient evidence
presented at trial to support a finding that Burtch was the owner
of stolen property valued in excess of $300.
Burtch was asked if the washer and dryer exhibit at trial was
his washer and dryer. Burtch was unable to recall the brand name
of his washer and dryer and to say with certainty that the washer
and dryer set presented at trial was his; however, he testified
that he owned a washer and dryer set worth $200 and that he stored
it in Shop 2 on his property prior to the time it was discovered
missing. An appliance repairman testified that he had worked on a
washer and dryer set that was owned by Burtch and located in Shop
2. The repairman testified that the serial numbers of the washer
and dryer exhibit at trial matched the serial numbers of the washer
and dryer on his work order.
At trial, ten tools were introduced into evidence without
objection. Each of the ten tools was engraved with the name
I1Burtch" on its surface and was positively identified as the
property of the Burtchs' or Burtch Construction. These tools
included a ratchet and torque wrench, staple gun, wheel barrow,
crescent wrench, radio, screw driver, nipper or nibbler, crimping
tool, tin snipers, and a 10-inch saw blade. The combined value of
these tools was $175.
We conclude there is sufficient evidence in the record to
establish that Burtch owned the washer and dryer and the ten tools.
Together, the washer and dryer set valued at $200 and the ten tools
valued at $175 were worth $375. Therefore, we conclude Burtch
owned stolen property sufficient to satisfy the $300 statutory
minimum for a felony theft charge. We need not discuss any of the
other allegedly stolen items for purposes of affirming Rodgersl
conviction.
11.
Is the issue of prosecutorial misconduct barred by the
contemporaneous objection rule?
Rodgers asserts that the State engaged in prosecutorial
misconduct when the Prosecutor called the defendant and his son
6
liars during closing argument, argued facts in closing that were
not in evidence, and mischaracterized Rodgers' testimony to infer
Rodgersf guilt. Defense counsel for Rodgers did not object to the
Prosecutor's comments during closing argument. Despite the failure
to raise any objections, Rodgers asserts our Court should take
notice of the Prosecutorfs improper argument on appeal. Rodgers
asserts such prosecutorial misconduct denied him his right to a
fair trial as guaranteed by the Sixth Amendment of the United
States Constitution and ~rticle11, Section 24, of the Montana
Constitution.
This Court has held that it is highly improper for an
attorney, in closing argument, to characterize the testimony of a
witness as lies, or to identify the party or a witness as a liar.
State v Musgrove (1978), 178 Mont. 162, 172, 582 P.2d 1246, 1253.
. We
restate our strong disapproval of such conduct. However, the
contemporaneous objection rule at 5 46-20-104, MCA, precludes this
court from considering an alleged error unless a timely objection
was made at trial or unless certain statutory criteria are met.
According to Section 46-20-104(2), MCA:
Upon appeal from a judgment, the court may review
the verdict or decision and any alleged error objected to
which involves the merits or necessarily affects the
judgement. Failure to make a timely objection during
trial constitutes a waiver of the objection except as
provided in 5 46-20-701(2), MCA.
Section 5 46-20-701(2), MCA, provides:
No claim alleging an error affecting jurisdictional or
constitutional rights may be noticed on appeal, if the
alleged error was not objected to as provided in
46-20-104, unless the defendant establishes that the
error was prejudicial as to his guilt or punishment and
that:
(a) the right asserted in the claim did not exist
at the time of the trial and has been determined
retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement
agency suppressed evidence from the defendant or his
attorney that prevented the claim from being raised and
disposed of; or
(c) material and controlling facts upon which the
claim is predicated were not known to the defendant or
his attorney and could not have been ascertained by the
exercise of reasonable diligence. [~mphasis added.]
We conclude that Rodgers does not meet any of the three
requirements listed in § -
46-20-701(2)(a) (c), MCA. Because Rodgers
has not met any of these requirements, his failure to object at
trial constitutes a waiver of his constitutional claim. Section
46-20-104, MCA.
Our decision in the present case is supported by the United
States Supreme Court decision in Estelle v HG1liarn.s (1976), 425 U. S
. .
501, 96 S. Ct. 1691, 48 L. Ed. 2d 126. In Estelle, an accused stood
trial before a jury while wearing a prison uniform. The accused
made no objection during the trial regarding his having to stand
trial in the prison uniform; consequently, the objection was not
allowed to be raised on appeal. In Estelle, the United States Supreme
Court explained the reasoning behind the rule that failure to raise
an objection at trial constitutes waiver of one's constitutional
claim. "[Ilf the defendant has an objection, there is an
obligation to call the matter to the court's attention so the trial
judge will have an opportunity to remedy the situation." Estelle, 425
U.S. at 508, n.3.
We have addressed the issue of a defendant raising objections
for the first time on appeal in a previous Montana case. See State v.
Cain (1986), 220 Mont. 509, 717 p.2d 15. In Cain, we stated: "The
District Court was never given an opportunity to rule on admission
of the statements or to correct itself if admission was not proper.
We will not put the trial court in error where it has not been
given such a chance.' Cain, 717 P.2d at 19 (citing State v. Weinberger
I
(1983), 204 Mont. 278, 304, 665 P.2d 202, 216).
Rodgers urges this Court to exercise the discretionary powers
of the "plain error doctrineu to prevent a manifest injustice in
this case. We have stated that the power of discretionary review
is only to be used in exceptional cases. Statev. Voegek (1990), 243
Mont. 222, 224, 793 P.2d 832, 834.
We have refused to invoke the plain error doctrine in previous
cases in Montana when objections to a prosecutor's closing
arguments were made for the first time on appeal. SeeStatev. Laverdure
(lggo), 241 Mont. 135, 785 P.2d 718; State v. Smith (l988), 232 Mont.
156, 755 P.2d 569; Statev.Pease (1986), 222 Mont. 455, 724 P.2d 153.
Although we do not foreclose the option to invoke the plain error
doctrine in a future case involving prosecutorial misconduct, we
decline to invoke the doctrine under the circumstances of this
case.
111.
Was there an illegal search of the defendant's home?
Rodgers contends that the search of his home was illegal. He
contends that the voluntary consent form which he signed only
granted permission for Deputy Mock to search his home, and that it
did not extend to the Burtch family and their employees who
assisted Deputy Mock in the search. Rodgers asserts that the
search violated his Fourth Amendment right to be free from
unreasonable searches and that the search violated his right of
privacy under Article 11, Section 10, of the Montana Constitution.
We hold that the search of Rodgers' home was legal and was not
in violation of either constitutional provision. Although the
consent form provides that Deputy Mock was authorized to search
Rodgers' premises, it does not prohibit Deputy Mock, either
expressly or by implication, from requesting assistance in the
search. We conclude that when Rodgers gave consent to Deputy Mock
to search his home, Rodgers waived any reasonable expectation of
privacy in his home, including any limitation on the authority of
Deputy Mock to request assistance in the search of Rodgers' home.
See State v. Lerch (Or. Ct. App. 1983), 666 P.2d 840, 845, a f f l d ,
(Or. 1984) 677 P.2d 678.
In a previous Montana case, Statev. Yoss (1965), 146 Mont. 508,
409 P.2d 452, the owners of burglarized property accompanied and
assisted the police in the search for their possessions, despite
the fact that they were not listed on defendant's voluntary consent
form as parties who were given permission to search his premises.
We held that the presence of the owners did not make the search
illegal in the absence of a showing of any prejudice to the
defendant. We explained in Yoss:
We find no merit to defendant's contention that the fact
[the owners] Mr. and Mrs. Maupin accompanied the officers
at the time of the search, but were not listed on the
voluntary statement given by him[, ] would make the search
illegal. There is no showing of any prejudice arising
from their being present.
Yoss, 409 P.2d at 455.
Similarly, there was no prejudice to Rodgers when the Burtch
family and a Burtch Construction employee assisted Deputy Mock in
identifying stolen items on Rodgers' premises. We conclude that
the search was not illegal.
IV.
Was defendant denied his constitutional right to effective
assistance of counsel?
Based on his assertion that the search of his home was
illegal, Rodgers contends that his defense counsel's failure to
move to suppress the evidence seized from the search denied him
effective assistance of counsel. We conclude that because the
search was legal, defense counsel's failure to object to the items
seized at the search is of no consequence.
When evaluating a claim of ineffective assistance of counsel,
this Court applies the two-pronged test set forth in Strickland v
.
Washington (1984), 466 U . S . 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674.
First, counsel's performance must be deficient. To
assess deficient performance, this Court employs the
"'reasonably effective assistance' test of whether a
defendant's counsel acted within the range of competence
demanded of attorneys in criminal cases.I' Second,
counsel's deficient performance must have so prejudiced
the defendant as to deprive the defendant of a fair
trial. The standard for evaluating prejudice is whether
a reasonable probability exists that but for counsel's
deficient performance, the trial's outcome would have
been different. [Citations omitted.]
Statev. Coates (1990), 241 Mont. 331, 337, 786 p.2d 1182, 1185.
We hold that the second part of the test set forth in Strickland
is not satisfied in this case. If defense counsel had moved to
suppress the evidence seized from the search of Rodgers' home (as
Rodgers suggests he should have), the motion would not have changed
the outcome of the case. Because the search was legal, the fruits
of the search would have been allowed into evidence over the
objection of defense counsel, and the result would have been the
same. Rodgers has not shown that he was prejudiced by his defense
counsel's failure to object to the evidence seized during the legal
search. Therefore, we conclude that he was not denied effective
assistance of counsel. The judgment of the District Court is
affirmed.
We concur: