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No. 99-023
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 332
303 Mont. 71
15 P. 3d 917
THE STATE OF MONTANA,
Plaintiff and Respondent,
v.
DAVID HART,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Susan Watters, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Attorney at Law, Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; C. Mark Fowler,
Assistant Attorney General, Helena, Montana
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Dennis Paxinos, Yellowstone County Attorney, Billings, Montana
Submitted on Briefs: June 8, 2000
Decided: December 14, 2000
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the opinion of the Court.
¶1 David Hart appeals from the conviction and sentence entered by the Thirteenth Judicial
District Court, Yellowstone County, sentencing him to 12-years' imprisonment for felony
assault. We affirm Hart's conviction, but strike part of his sentence and remand for entry
of judgement consistent with this opinion.
¶2 Hart 's appeal raises the following issues:
¶3 1. Whether the District Court erred when it permitted the State to submit rebuttal
testimony?
¶4 2. Whether the District Court erred when it permitted the State to ask Hart whether he
believed the State's witnesses were lying?
¶5 3. Whether the State violated Hart's right to a fair trial when presenting its closing
arguments?
¶6 4. Whether the District Court erred when it imposed a dangerous weapon sentence
enhancement?
BACKGROUND
¶7 On February 9, 1998, the State filed an Information charging Hart with felony assault.
The State alleged that David Hart struck his niece, Shandel Hart, in the face with his fist
several times and struck her in the back of the head and shoulder with a cattle prod in
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violation of § 45-5-202, MCA. Hart pled not guilty and the court appointed counsel. Hart
was tried by jury on July 13 and 14, 1998.
¶8 During Hart's trial, the State presented the testimony of three eyewitnesses to Hart's
assault: Shandel Hart, Michelle Floor, and Vanessa Sutton. The State also presented the
testimony of the arresting officer, Jason Gartner. Shandel testified that she was at her
home on the evening of February 5, 1998, with her 17-year-old ward, Vanessa Sutton;
Vanessa's boyfriend, Michael; Shandel's friend, Michelle Floor; and Michelle's three
children. Shandel had planned on cutting Michelle's children's hair that evening. Shandel's
uncle, David Hart, and his friend, Roy Pearl, stopped by Shandel's house at around 7:30 or
8 p.m. When Hart and Roy arrived, Shandel and Michelle were home alone, the others
having left earlier in Michelle's car to buy dinner.
¶9 Michelle testified that Shandel planned to repay Hart some money she owed him with
the money she earned from the haircuts. Michelle owed Shandel $20 for the haircuts but
only had a $50 bill. Roy offered to drive Michelle somewhere in order to change the bill.
Roy and Michelle drove to the Tap Inn, a nearby bar, leaving Hart and Shandel alone.
Shandel testified that after Roy and Michelle departed, Hart showed her a cattle prod that
he was carrying in his pocket.
¶10 About 15 minutes after Michelle and Roy departed, Hart left Shandel's house and
walked to the Tap Inn. Michelle testified that Hart entered the bar and sat down next to her
and Roy. Michelle bought Hart a drink and gave him the money that Shandel owed him.
Michelle testified that Hart made a rude sexual comment to her. She told Hart that she was
offended by his comment. Hart then pulled the cattle prod out of his pocket and pointed it
at her. Michelle got up, flipped Hart's cowboy hat off his head, moved to the other side of
the bar and had another drink. Michelle testified that Hart was incensed. Shortly thereafter,
Hart and Roy left the bar without Michelle and returned to Shandel's house.
¶11 While Hart, Roy, and Michelle were at the Tap Inn, Vanessa, her boyfriend, and
Michelle's children returned to Shandel's house. They were watching television when Hart
and Roy walked in the door. Shandel testified that Hart had been gone about an hour and a
half. Shandel testified that Hart was angry and was shouting epithets about Michelle. As
Hart was ranting about Michelle, she walked in the front door. Shandel testified that Hart
ran over to the front door, grabbed Michelle by the hair and began hitting her with his
fists. Shandel grabbed Michelle around the waist and pulled her away from Hart. Shandel
shouted that Hart was not going to beat Michelle up in Shandel's house and in front of
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Michelle's children. Hart then hit Shandel in the face with the cattle prod. Hart hit Shandel
with the cattle prod approximately five or six times about her head and shoulders. The
cattle prod was not activated at the time.
¶12 Michelle testified that while Hart was attacking Shandel with the cattle prod, she
gathered her children, took them out to the garage, and called 911. Michelle returned to
the scene of the assault and informed Hart that she had called the police. Once again, Hart
came at Michelle. Michelle grabbed a two-by-four board and swung it at Hart. Hart
ducked out of the way and Michelle missed, breaking a window with the board. Michelle
then yelled, "There they are right now, they're here!", indicating that the police had
arrived. Hart and Roy immediately fled out the back door of Shandel's house.
¶13 Officer Jason Gartner was dispatched to Shandel's home. Officer Gartner arrived,
discovered that Hart and Roy had fled in an El Camino, and radioed in a description of
their vehicle to a dispatcher. Another officer stopped Hart and Roy a few blocks from
Shandel's home. Officer Gartner drove to the scene of the stop to provide assistance. He
testified that Roy was arrested for DUI and that Hart appeared extremely intoxicated.
Officer Gartner noticed a cattle prod behind the passenger seat where Hart had been sitting
and seized it. He later showed the cattle prod to Shandel and she identified it as the
weapon Hart had used to assault her.
¶14 After the State presented its case-in-chief, Hart testified on his own behalf. Hart stated
that he went to Shandel's house that night because she had offered to repay him some
money she had borrowed. Hart maintained that the cattle prod was on Shandel's dining
room table. During the State's cross-examination, Hart testified that he visited Shandel's
house two to three times a week and that the cattle prod was always sitting on her table.
Hart stated that he thought Shandel had the cattle prod in case her dogs became
aggressive. With regard to his altercation with Shandel, Hart testified that he was walking
out the door as Michelle was walking in and he ran into her. When he turned around,
Shandel was coming at him with the cattle prod in her hand. In the process of attempting
to take the cattle prod away from Shandel, Hart grabbed her wrist and shoved it towards
her face, injuring her. Hart testified that he never had the cattle prod in his possession prior
to his altercation with Shandel. During cross-examination, the State asked Hart whether
Michelle, Vanessa, and Shandel were lying when they testified that they saw Hart with the
cattle prod prior to the assault. Hart answered affirmatively.
¶15 After Hart's testimony, the State recalled Shandel Hart as a rebuttal witness. On direct
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examination by the State during its case-in-chief, Shandel had denied owing Hart money.
During her rebuttal testimony, Shandel testified that Hart came to her house because he
and Roy needed money and he wanted to sell her some pork tenderloins that he had stolen.
Shandel testified that Hart made money by shoplifting. Shandel contended that Hart
confided to her that he carried the cattle prod so that if someone attempted to catch him
while he was shoplifting, he could use it to stop them.
¶16 The jury found Hart guilty of felony assault. The District Court issued its Judgment
and Commitment on September 24, 1998, imposing a sentence of ten years in the Montana
State Prison for the commission of felony assault and an additional two years for the use
of a weapon to be served consecutively. Hart appeals.
ISSUE ONE
¶17 Whether the District Court erred when it permitted the State to submit rebuttal
testimony?
¶18 After Hart's testimony, the State offered the testimony of Shandel in rebuttal. The
State contended that Shandel would rebut Hart's testimony that Shandel owed him $50 and
rebut Hart's testimony that he did not possess the cattle prod. The District Court allowed
the State to present Shandel's testimony over Hart's objections. Shandel testified that Hart
did not stop by her house to collect money she owed him, but rather that he stopped by to
sell her some pork tenderloins that he had stolen. Shandel also testified that Hart and Roy
made their money from shoplifting and that Hart had informed her that he carried a cattle
prod in order to prevent people from catching him shoplifting.
A. Proper Rebuttal
¶19 Hart first contends that the District Court erred in admitting Shandel's rebuttal
testimony because it was not proper rebuttal testimony. Hart maintains that he did not
open the door to this testimony nor did he raise a new matter in his testimony. The State
asserts that Hart raised the issue of who owned the cattle prod, to what use the cattle prod
was previously put, and how it came to be in Shandel's house for the first time during his
testimony.
¶20 We have stated that a district court has "wide discretion in determining the scope and
extent of re-examination as to new matters brought out on cross-examination." State v.
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Veis, 1998 MT 162, ¶ 19, 289 Mont. 450, ¶ 19, 962 P.2d 1153, ¶ 19. As with a district
court's determination of the scope and extent of redirect examination, we will review a
district court's admission of rebuttal testimony to determine whether the district court
abused its discretion. Rebuttal testimony is proper only if it tends to counteract a new
matter offered by the adverse party. State v. Daniels (1984), 210 Mont. 1, 10, 682 P.2d
173, 178.
¶21 The District Court did not abuse its discretion in admitting the State's rebuttal
testimony. Shandel's rebuttal testimony tended to counteract a new matter offered by Hart.
The new matter offered by Hart was that Shandel owned the cattle prod and used it to train
her dogs. During his direct examination, Hart testified that the first time he observed the
cattle prod was when he saw it on Shandel's dining table. During the State's cross-
examination, Hart further testified that he did not own the cattle prod, that he saw the
cattle prod at Shandel's house about six months to a year prior to the incident, and that he
thought Shandel had it in case her dogs became aggressive.
¶22 Hart maintains that he did not offer this new matter because it was raised during the
State's cross-examination and not during his direct testimony. Hart's contention is
incorrect. Hart offered this new matter during his direct testimony when he testified that
the first time he saw the cattle prod was six months to a year ago on Shandel's dining room
table. During the State's cross-examination, the prosecutor questioned Hart about this new
matter. In response to the State's question about whether he thought there was anything
unusual about Shandel having a cattle prod on her dining room table for the past six
months, Hart stated, "I just thought it was in case one of these [sic] dogs got mean or
something." This new matter was offered by Hart. The fact that it was more fully explored
by the State during its cross-examination of Hart is irrelevant.
¶23 Lastly, Shandel's testimony tended to counteract this new matter raised by Hart.
Shandel testified that Hart owned the cattle prod and that he told her that he used it to
prevent people from catching him shoplifting. Therefore, we conclude that the District
Court did not abuse its discretion when it admitted the State's rebuttal testimony.
B. Evidence of Other Crimes, Wrongs, or Acts
¶24 Hart next contends that Shandel's testimony that he made his living stealing food, that
he was carrying the cattle prod to use against people who attempt to stop him from
stealing, and that the reason that he was at Shandel's home was to sell her stolen food was
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evidence of other crimes, wrongs, or acts which should have been excluded pursuant to
Rule 404(b), M.R.Evid. The State argues that this testimony did not violate Rule 404(b)
because it was admitted for the purpose of challenging Hart's testimony that Shandel
possessed the cattle prod.
¶25 We review a district court's admission of evidence to determine whether the court
abused its discretion. State v. Rogers, 1999 MT 305, ¶ 11, 297 Mont. 188, ¶ 11, 992 P.2d
229, ¶ 11. The admissibility of evidence of prior crimes, wrongs, and acts is reviewed
pursuant to the Modified Just Rule, which provides that in order to be admissible the other
crimes, wrongs, or acts must be: (1) similar; (2) not remote in time; (3) not admitted to
prove the character of a person in order to show that he acted in conformity with such
character; and (4) the probative value of the evidence must not be substantially
outweighed by the danger of unfair prejudice. Rogers, ¶ 25
¶26 The State has not contested the fact that Shandel's testimony contained evidence of
other wrongful acts committed by Hart, nor has Hart claimed that the prior acts were
dissimilar or too remote in time to the current charges. Therefore, the admissibility of
Shandel's testimony under Rule 404(b) depends on the last two Modified Just
requirements: whether the evidence of other wrongful acts was admitted to prove Hart's
character in order to show that he acted in conformity with such character; and whether
the probative value of Shandel's testimony is outweighed by the danger of unfair prejudice.
¶27 Shandel's testimony was not admitted to prove Hart's character in order to show that
he acted in conformity with such character. The court explicitly stated that it was allowing
Shandel's testimony in order to rebut Hart's testimony that the cattle prod was always in
Shandel's house. We think that Shandel's rebuttal testimony provided the jury with a
detailed account of Hart's presence in her house and Hart's possession of the cattle prod
and was not admitted to prove Hart's character. Providing the jury with a reason why Hart
was carrying the cattle prod is probative of the fact that Hart indeed had the cattle prod
and used it to assault Shandel.
¶28 The probative value of Shandel's testimony is not outweighed by the danger of any
unfair prejudice its admission may have created. It is inevitable that evidence of other
crimes, wrongs, or acts will have some prejudicial effect on a criminal defendant. State v.
Southern, 1999 MT 94, ¶ 38, 294 Mont. 225, ¶ 38, 980 P.2d 3, ¶ 38. However, relevant
evidence will be inadmissible under the fourth part of the Modified Just Rule only when
"its probity is substantially outweighed by the danger of unfair prejudice." Southern, ¶ 38.
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The prejudicial effect of relevant evidence will substantially outweigh its probative value
when such evidence will prompt the jury to decide the case on an improper basis.
Southern, ¶ 39.
¶29 Shandel's rebuttal testimony was potentially highly prejudicial. Testimony that Hart
made his living from shoplifting and carried a cattle prod to prevent others from catching
him could certainly prompt a jury to decide that Hart was guilty of assaulting Shandel
because he had a propensity for criminal conduct and not because he did in fact assault
Shandel. We are not convinced, however, that the prejudicial effect of Shandel's testimony
substantially outweighs its probative value.
¶30 Hart contends that the issue of why he had the cattle prod had no probative value
because, in order to obtain a conviction for assault, all the State had to prove was that he
purposely or knowingly caused bodily injury to Shandel with a weapon. We disagree. Hart
misunderstands the central issue of this case: who possessed the cattle prod during the
altercation between Shandel and Hart. Rule 404(b), M.R.Evid., explicitly allows for the
admission of other wrongs to prove opportunity. By explaining why Hart carried the cattle
prod, Shandel's testimony was highly probative of the fact that Hart was in fact carrying
the cattle prod and thus had the opportunity to strike Shandel with it. This testimony
directly contradicted the defense's theory, as testified to by Hart himself, that Shandel
owned the cattle prod, that Shandel used it for disciplining her dogs, that the cattle prod
was sitting on her dining room table, that she attacked Hart with it, and that Hart injured
her in an attempt to take it away from her.
¶31 The District Court did not abuse its discretion pursuant to Rule 404, M.R.Evid., in
admitting Shandel's rebuttal testimony.
ISSUE TWO
¶32 Whether the District Court erred when it permitted the State to ask Hart whether he
believed the State's witnesses were lying?
¶33 During the State's cross-examination of Hart, the prosecution asked Hart if Michelle,
Vanessa, and Shandel were lying when they testified that Hart pulled the cattle prod out of
his pocket. Hart responded in the affirmative, indicating that each of the State's
eyewitnesses had lied about that fact. Hart's counsel objected to this line of questioning.
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¶34 On appeal, Hart contends that the District Court erred when it permitted the State to
ask him whether the State's witnesses were lying. In support of his argument, Hart refers
us to State v. Webb (1992), 252 Mont. 248, 828 P.2d 1351, and State v. Lunstad (1993),
259 Mont. 512, 857 P.2d 723. The State claims that we have not decided whether it is
impermissible for the State to ask a defendant whether other witnesses were lying. The
State argues that there is a division of authority among other jurisdictions on the
permissibility of such questioning and that we should side with those courts which permit
such questions.
¶35 We have not yet decided whether it is reversible error to allow the State to ask a
defendant whether other witnesses were lying. In State v. Campbell (1990), 241 Mont.
323, 787 P.2d 329, our only decision in which we directly discussed this issue, we were
unwilling to reverse the defendant's conviction by reason of the fact that the State asked
the defendant whether the State's witness had lied, because the defendant did not answer
the question. Campbell, 241 Mont. at 327, 787 P.2d at 332. We also observed that "[w]hen
a defendant goes up on the witness stand in his own behalf, and denies the commission of
the crime with which he is charged, a very wide latitude of cross-examination is allowed."
Campbell, 241 Mont. at 327, 787 P.2d at 332 (quoting State v. Rhys (1909), 40 Mont. 131,
136, 105 P. 494, 496).
¶36 In two subsequent decisions, we analyzed whether the State had properly laid the
foundation for the admission of evidence by asking the defendant whether other witnesses
had lied. We did not determine whether allowing the questioning by itself constituted
reversible error. In Webb, we held that a defendant's testimony that the State's informant
had lied was an insufficient basis for the State's offer of opinion testimony regarding the
truthfulness of the informant pursuant to Rule 608, M.R.Evid. Webb, 252 Mont. at 256,
828 P.2d at 1356. In Lunstad, we held that a defendant's testimony on cross-examination
that the victim had lied was an insufficient basis for the admission of the victim's prior
consistent statements under Rule 801(d)(1)(B), M.R.Evid. Lunstad, 259 Mont. at 516, 857
P.2d at 725-26.
¶37 Courts in other jurisdictions differ on whether a prosecutor may ask a defendant if
other witnesses have lied. Some courts have held that it is categorically improper for the
prosecution to ask a defendant whether a witness has lied. See United States v. Sanchez
(9th Cir. 1999), 176 F.3d 1214, 1220; United States v. Boyd (D.C. Cir. 1995), 54 F.3d 868,
871; United States v. Richter (2d Cir. 1987), 826 F.2d 206, 208; Scott v. United States (D.
C. App. 1993), 619 A.2d 917, 924-25; State v. Casteneda-Perez (Wash. Ct. App. 1991),
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810 P.2d 74, 79; State v. Flanagan (N.M. Ct. App. 1990), 801 P.2d 675, 679. Other courts
appear to have held that this line of questioning is categorically proper. See Whatley v.
State (Ga. 1998), 509 S.E.2d 45, 51 cert. denied 526 U.S. 1101, 119 S.Ct. 1582, 143 L.
Ed.2d 676; Fisher v. State (Md. App. 1999), 736 A.2d 1125, 1162-63. Finally, some courts
have staked out a middle ground, holding that the permissibility of this type of questioning
depends on the circumstances. See State v. Pilot (Minn. 1999), 595 N.W.2d 511, 518;
People v. Overlee (N.Y.App. Div. 1997), 236 A.D.2d 133, 666 N.Y.S.2d 572, 577; State v.
Morales (Ariz. Ct. App. 2000), 10 P.3d 630, ¶13.
¶38 We disagree with the line of cases which hold that asking a defendant whether other
witnesses are lying is always improper. Generally, the rationale of these decisions is that
"were they lying" questions infringe upon the role of the jury to make credibility
determinations. See Boyd, 54 F.3d at 871 (holding that these questions "infringed on the
jury's right to make credibility determinations"); Richter, 826 F.2d at 208 (observing that
"[d]eterminations of credibility are for the jury . . . and not for witnesses") (citation
omitted); Casteneda-Perez, 810 P.2d at 79 ("Unquestionably, to ask a witness to express
an opinion as to whether another witness is lying does invade the province of the jury.");
Flanagan, 801 P.2d at 679 ("it is the role of the jury to determine the credibility of
witnesses").
¶39 We are not convinced that permitting the State to ask a defendant whether other
witnesses are lying will always impermissibly infringe upon the jury's role to make
determinations of credibility. The difference between the defendant testifying that other
witnesses have lied and the defendant testifying to facts which differ from the facts as
testified to by other witnesses is not so great that one line of questioning is categorically
improper. Especially in factual situations such as this one, in which the only important
distinction between the defendant's testimony and the victim's testimony is that each
witness is claiming that the other one did it, the difference between the defendant
testifying that "yes, the victim lied, she attacked me" or the defendant testifying that "she
attacked me" is, for purposes of the jury's role in making credibility determinations,
irrelevant. In either situation, the jury must still decide which witness is more credible.
This is entirely unlike the danger posed by a prosecutor's comment on an accused's guilt or
innocence which does invade the province of the jury and is an usurpation of its function
because the jurors may simply "adopt the prosecutor's views instead of exercising their
own independent judgment as to the conclusions to be drawn from the testimony."
Campbell, 241 Mont. at 328, 787 P.2d at 333 (quoting 88 A.L.R. 3d 449, 454-55 (1978)).
We do not believe that the jury is likely to simply adopt the defendant's conclusions
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regarding the credibility of other witnesses.
¶40 We also disagree with those decisions which hold that "were they lying" questions are
always proper. We believe that there may be circumstances in which this line of
questioning will be improper because it has no probative value in that it does nothing to
assist the jury in assessing witness credibility in its fact-finding mission and in
determining the ultimate issue of guilt or innocence. See Pilot, 595 N.W.2d at 518.
However, we also believe that there may be circumstances in which "were they lying"
questions have probative value in clarifying a particular line of testimony, in evaluating
the credibility of a defendant who is claiming that everyone else is lying, or when a
witness flatly denies the occurrence of events. Pilot, 595 N.W.2d at 518.
¶41 For instance, in Pilot, the focus of the defense was that the state's witnesses were lying
and that the evidence against the accused was fabricated as part of a vast conspiracy to
convict him of a crime he did not commit. Pilot, 595 N.W.2d at 518. The Supreme Court
of Minnesota held that it was not error to permit the prosecution to pose "were they lying"
questions during its cross-examination of the defendant because the questions "could well
have assisted the jury in . . . evaluating his conspiracy theory." Pilot, 595 N.W.2d at 518.
¶42 Similarly, in Overlee, the defendant had testified on direct that a witness for the
prosecution was a liar. Overlee, 666 N.Y.S.2d at 575. On cross-examination, the
prosecution asked the defendant whether the prosecution's witnesses were lying. The New
York Supreme Court, Appellate Division, drew a distinction between permissible cross-
examination and prosecutorial misconduct, stating that:
[A] distinction has to be made between a defendant's testimony that conflicts with
that of the People's witnesses and yet is susceptible to the suggestion that the
witnesses spoke out of mistake or hazy recollection and the situation where, as here,
the defendant's testimony leaves open only the suggestion that the People's
witnesses have lied. In the latter circumstance, the prosecution has the right to ask
whether the witnesses are liars.
Overlee, 666 N.Y.S.2d at 576.
¶43 We refuse to adopt a bright-line rule regarding the propriety of questioning the
defendant about the truthfulness of other witnesses. Because we hold that "were they
lying" questions are not categorically improper, we commit the decision on whether to
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allow this type of questioning in any particular instance to the sound discretion of the
district court. We will only overturn a court's decision to admit or deny "were they lying"
questions in those cases in which the propriety of asking such questions is clear.
¶44 We do not believe that allowing the prosecutor to ask Hart whether the State's
witnesses were lying was clearly improper. As in Overlee and Pilot, the only explanation
for the difference between the testimony of the State's witnesses that Hart had the cattle
prod in his pocket and Hart's testimony that the cattle prod had been on Shandel's dining
room table for the past six months was that somebody was lying. The prosecution's
questioning of Hart elicited relevant evidence by focusing the jury's attention on the
central issue of the case. Thus, we conclude that the District Court did not abuse its
discretion in permitting the State to ask Hart whether other witnesses were lying.
ISSUE THREE
¶45 Whether the State violated Hart's right to a fair trial when presenting its closing
arguments?
¶46 During the State's closing arguments, the prosecutor stated:
But let's look at what the defendant said. I mean, he didn't have to get up on the
witness stand and testify. He has a right not to do that. But he elected, nevertheless,
to get up and tell you his version of what happened. And I submit that most of what
the defendant said is completely unworthy of belief and should be rejected by you.
After all, the defendant is the only one who was allowed to sit through the testimony
of every other witness before he got up to testify and, I suggest, had an opportunity
to fabricate his testimony based on what the other witnesses said.
¶47 The defense did not raise an objection to the State's summation at trial. For the first
time on appeal, Hart contends that the District Court erred when it allowed the prosecutor
to observe that Hart exercised his right to be present at trial which provided him an
opportunity to fabricate his testimony based on the testimony of the State's witnesses. The
State claims that Hart waived this claim by failing to make a contemporaneous objection
and that we should decline to review it under our common law power of plain error
review. We agree.
¶48 Pursuant to § 46-20-104(2), MCA, "Failure to make a timely objection during trial
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constitutes a waiver of the objection except as provided in 46-20-701(2)." Hart does not
contend that any of the exceptions to the requirement of contemporaneous objection as
listed in § 46-20-701(2), MCA, apply. We have held that, notwithstanding the failure to
object to an alleged error and the inapplicability of § 46-20-701(2), MCA, we may review
a claimed error which affects fundamental constitutional rights where failing to review it
may result in a manifest miscarriage of justice, leave unsettled the question of the
fundamental fairness of the proceedings, or compromise the integrity of the judicial
process. State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215.
¶49 In order to invoke our power of review under Finley, Hart must "initially demonstrate
that a fundamental right constitutionally guaranteed to him was implicated by the plain
error which he claims." See State v. Pizzichiello, 1999 MT 123, ¶ 11, 294 Mont. 436, ¶ 11,
983 P.2d 888, ¶ 11. Hart acknowledges that after the filing of his initial brief the United
States Supreme Court rejected this exact claim under the federal constitution in Portuondo
(1)
v. Agard (2000), 529 U.S. 61, 120 S. Ct. 1119, 146 L. Ed. 2d 47 . In his reply brief, Hart
limited his claim of error to Article II, Section 24 of the Montana Constitution-
specifically, the right to "meet witnesses against him face to face." Hart observes that we
have held that this right is a "fundamental right" which is not included in the federal
constitution. See State v. Clark, 1998 MT 221, ¶¶ 22-24, 290 Mont. 479, ¶¶ 22-24, 964
P.2d 766, ¶¶ 22-24.
¶50 Hart has demonstrated that his fundamental right to face to face confrontation as
guaranteed by Article II, Section 24 may have been implicated by the prosecutor's
summation. As Hart observes, because of the unique constitutional language of Article II,
Section 24 of the Montana Constitution, the United States Supreme Court's decision in
Portuondo is not dispositive of this issue. See Clark, ¶ 24. Although we have never held
that a defendant's right to meet adverse witnesses face to face is implicated during a
prosecutor's closing arguments, it is conceivable that an accused's right to face to face
confrontation could be burdened by allowing summation comments which negatively
remark on the accused's presence during the testimony of adverse witnesses. We decline to
determine whether this potential burden is a constitutionally impermissible one, however,
because as addressed below, Hart has failed to meet the second prong of Finley.
¶51 In order to invoke our common law power of plain error review, Hart must also show
that "failing to review the claimed error at issue would result in a manifest miscarriage of
justice, leave unsettled the question of the fundamental fairness of the trial proceedings or
compromise the integrity of the judicial process." Pizzichiello, ¶ 15. The instances in
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which we have exercised our common law power of plain error review are rare. See
Pizzichiello, ¶ 10 (observing that, as of time of briefing, we had only exercised it in 3
cases out of 14 requests).
¶52 Hart has not shown that failing to review the admission of the State's comments
during summation would result in a manifest miscarriage of justice, leave unsettled the
question of the fundamental fairness of the trial proceedings, or compromise the integrity
of the judicial process. Hart maintains that allowing the prosecutor to make such
comments during her closing arguments "had the effect of chilling the exercise of his
constitutional rights." However, the prosecutor's statements could not have "chilled" Hart's
exercise of his right to confront adverse witnesses face to face because those comments
occurred during the prosecutor's summation, after he had already exercised his right to
meet adverse witnesses. Furthermore, we are not convinced that by refusing to review this
claim raised for the first time on appeal, Hart will have suffered a manifest miscarriage of
justice. It is not at all "manifest" that Hart's conviction was the result of this alleged error.
Three eyewitnesses all testified that Hart had the cattle prod in his pocket and that Hart
assaulted Shandel with it. We are also not convinced that by refusing to review this claim
we will leave unsettled the question of the fundamental fairness of Hart's trial proceedings
or that we will compromise the integrity of the judicial process. We will continue to use
our inherent power of plain error review sparingly and only in exceptional cases meeting
one of the above criteria. See Finley, 276 Mont. at 138, 915 P.2d at 215; see also State v.
Dahlin, 1998 MT 113, 289 Mont. 182, 961 P.2d 1247 (reviewing claim that defendant did
not waive right to a jury trial in writing as required by statute); State v. Weaver, 1998 MT
167, 290 Mont. 58, 964 P.2d 713 (reviewing claim that jury verdict may not have been
unanimous). Hart's claim does not present such an exceptional case.
¶53 We decline to address Hart's contention that the prosecutor's summation violated his
right to face to face confrontation as guaranteed under Article II, Section 24 of the
Montana Constitution. Hart has failed to demonstrate that this is an appropriate use of our
common law power of plain error review.
ISSUE FOUR
¶54 Whether the District Court erred when it imposed a dangerous weapon sentence
enhancement?
¶55 The District Court sentenced Hart to ten-years' imprisonment for felony assault with a
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weapon and enhanced Hart's sentence by two additional years imprisonment pursuant to §
46-18-221, MCA, the dangerous weapon enhancement statute. In State v. Guillaume, 1999
MT 29, 293 Mont. 224, 975 P.2d 312, we held that the application of the weapon
enhancement statute to felony convictions where the underlying offense requires proof of
the use of a weapon violates the double jeopardy provision of Montana's Constitution.
Guillaume, ¶ 16. The holding of Guillaume applies retroactively to all cases not yet final.
State v. Aguilar, 1999 MT 159, ¶ 13, 295 Mont. 133, ¶ 13, 983 P.2d 245, ¶ 13. The State
concedes that the District Court's sentence is in violation of Guillaume. Therefore, we
vacate the enhanced portion of Hart's sentence and remand for entry of judgment
consistent with this opinion.
¶56 Affirmed in part and vacated in part.
/S/ JIM REGNIER
We Concur:
/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ WILLIAM E. HUNT, SR.
/S/ TERRY N. TRIEWEILER
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
1. In Portuondo, the United States Supreme Court held that a prosecutor's remarks in summation to the
effect that because the defendant was present during the testimony of all the other witnesses he was
afforded the opportunity to fabricate his testimony did not violate the defendant's right to be present at
trial, right to confront witnesses, or right to due process. Portuondo,120 S. Ct. at 1123.
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