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No. 98-213
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 62
STATE OF MONTANA,
Plaintiff and Respondent,
v.
AMUIR SEKOU CLAUSELL,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kevin Gillen, Billings, Montana
For Respondent:
Joseph P. Mazurek, Montana Attorney General, C. Mark Fowler, Assistant Montana Attorney General,
Helena, Montana; Dennis Paxinos, Yellowstone County Attorney, Daniel Schwarz, Chief Deputy
Yellowstone County Attorney, Billings, Montana
Submitted on Briefs: March 16, 2000
Decided: April 18, 2001
Filed:
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__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Amuir Sekou Clausell appeals from the judgment of conviction and sentence entered
by the Thirteenth Judicial District Court, Yellowstone County, on a jury verdict finding
him guilty of deliberate homicide. We affirm.
¶2 We address the following issues on appeal:
¶3 1. Did the District Court err when it admitted expert testimony of Dr. Dwayne Schultz?
¶4 2. Did the District Court err when it denied Clausell's motion for a directed verdict of
acquittal?
¶5 3. Did the District Court erroneously instruct the jury on the definition of "purposely?"
¶6 4. Did the State prejudice Clausell's right to a fair and impartial trial by commenting on
facts not of record?
¶7 5. Did the District Court err when it admitted the testimony of police officer Steve
Swanson regarding pre-Miranda statements made by Clausell?
¶8 6. Did the State violate Clausell's right to due process and privilege against self-
incrimination by commenting on Clausell's post-Miranda silence and is this issue
reviewable under the common law plain error doctrine?
BACKGROUND
¶9 At approximately 3:00 a.m. on March 22, 1997, Amuir Clausell arrived at the
emergency room of Saint Vincent Hospital in Billings and informed hospital personnel
that his girlfriend had a head injury and he needed help getting her out of his car.
Emergency medical technicians who responded found Georgiana Trottier in the car,
unconscious and with a single gunshot wound to the head. Trottier never regained
consciousness and later died of the gunshot wound.
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¶10 Clausell initially told medical personnel that Trottier called him from a gas station,
told him she was injured and drove herself to Clausell's apartment. He said he found her
outside his apartment and drove her to the hospital. Clausell stayed at the hospital while
Trottier was being treated and Billings police officers eventually arrived and questioned
him. Over the course of the morning and during the ensuing investigation, Clausell
recounted at least eight different versions of the story to hospital personnel, police and two
friends who testified at trial.
¶11 Clausell was ultimately arrested on the morning of March 22, and Billings police
searched his apartment. Detectives found bloodstained blankets on Clausell's bed and
blood on the bed, floor and wall of the bedroom as well as on the stairs and handrail
leading from the bedroom to the main apartment. Blood samples taken from the apartment
matched Trottier's blood. Immediately outside the back door to Clausell's apartment,
wrapped in a towel inside a bucket, detectives found a .22 caliber pistol with one spent
round in the chamber. In Clausell's bedroom, detectives found .22 caliber ammunition as
well as a life insurance policy, held by Trottier, naming Clausell as the primary
beneficiary.
¶12 On March 27, 1997, the State charged Clausell by information with Felony
Accountability for Deliberate Homicide in violation of § 45-2-302(3), MCA, and § 45-5-
102, MCA. The State amended the information on August 6, 1997, to Felony Deliberate
Homicide in violation of § 45-5-102(1)(a), MCA. Clausell pled not guilty and a jury trial
commenced October 20, 1997.
¶13 Several witnesses testified at Clausell's trial regarding the events of March 21, 1997,
leading up to the shooting. Tyson Byers, a bouncer at the Lamplighter Lounge in Billings
testified that Trottier and Clausell spoke at the Lamplighter on the evening of March 21,
had an argument and had to be physically separated from each other. A second bouncer,
James Phillip "Hawkeye" Hochmuth, testified that after the altercation, he asked Trottier
to leave the bar and she left with her friend Tara Haker.
¶14 Haker testified that she had been with Trottier at the Lamplighter that evening, that the
two had eventually returned to Haker's house and that Trottier left for her own home
between 2:00 and 2:30 a.m. Rather than go home, however, Trottier drove to Clausell's
apartment. Toni Devous, one of Clausell's neighbors, testified that she awoke to Trottier
yelling and banging on Clausell's door at 2:30 a.m. Devous testified that she told Trottier
to leave Clausell alone or at least to go somewhere and call him. Trottier exchanged words
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with Devous and then left. Devous testified that she heard Trottier return a short while
later and enter the apartment and that she heard some brief yelling and then silence.
¶15 Testifying on his own behalf, Clausell admitted he and Trottier had an intimate
relationship but asserted it was not as serious as she wanted it to be. He testified that they
fought at the Lamplighter on the evening of March 21, and that she came to his apartment
later that night asking if she could stay with him but he refused. According to the account
Clausell gave at trial, Trottier then went upstairs demanding some of her belongings and
he went downstairs to get a glass of water; when he returned to his bedroom, Trottier was
lying face down on his bed again asking if she could stay. Clausell testified he grabbed her
by her wrists and arms and attempted to pull her off the bed when the gun, which he
ordinarily kept by his bed, discharged. Clausell testified that Trottier was holding the gun
but he never saw it due to the poor light and the fact he was not wearing his glasses.
According to Clausell, he then put his clothes on and carried her outside, dropping the gun
in the bucket on the way out, found her keys in her car and drove her to the hospital.
¶16 Dr. Dwayne Schultz, a pathologist at Saint Vincent Hospital, testified that Trottier
died as a result of a bullet wound to the back of her head. Dr. Schultz testified that he
found soot and powder from the bullet inside Trottier's skull and brain, indicating the gun
had been discharged at close range. Dr. Schultz also explained that the bullet entered at a
complex angle beginning two inches behind the left ear and one inch below the top of the
ear, a fact which Dr. Schultz opined would have made it difficult for Trottier to have
inflicted the wound herself. Finally, Dr. Schultz testified that the bullet essentially
exploded Trottier's cerebellum, precluding any further voluntary motor functions after she
was shot.
¶17 After a four-day trial, the jury convicted Clausell of deliberate homicide. On January
7, 1998, the District Court entered judgment on the verdict and sentenced Clausell to 100
years in the Montana State Prison plus an additional 2 years, running consecutively, for
the use of a weapon. Clausell appeals.
DISCUSSION
¶18 1. Did the District Court err when it admitted expert testimony of Dr. Dwayne
Schultz?
¶19 During its case-in-chief, the State offered the expert testimony of Dr. Dwayne Schultz.
In seeking to establish his qualifications as an expert, Dr. Schultz testified that he was
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board certified in Pathology and that he had conducted over four hundred autopsies,
approximately forty of which involved gunshot wounds. In response to voir dire by
defense counsel, Dr. Schultz admitted he was not board certified in Forensic Pathology.
Clausell's attorney then asserted the following objection: "I would object to this Doctor's
testimony regarding Forensic Pathology which would include discussions about homicide
cases . . . ." The District Court overruled the objection and Dr. Schultz testified, among
other things, as to the cause of Trottier's death, the presence of soot and powder burns in
her skull and brain, the trajectory of the bullet through her skull and brain, and the
probable orientation of the gun when it was fired in order for the bullet to achieve its
trajectory. Clausell did not object further to any of Dr. Schultz's testimony.
¶20 On appeal, Clausell contends "only a forensic pathologist should be considered a
qualified expert to testify concerning the cause of death where there is a suspicious
circumstance surrounding the death as presented in this trial for deliberate homicide."
Thus, Clausell appears to argue the District Court erred in accepting the qualifications of
Dr. Schultz as an expert witness. Clausell also argues the District Court erred specifically
in allowing Schultz to testify regarding the forensic aspects of Trottier's death--the
presence of soot and powder burns in the bullet wound, the trajectory and angle of the
bullet and the likely orientation of the gun when it was fired. We address both arguments
in turn.
¶21 Rule 702, M.R.Evid., sets forth the criteria for the admissibility of expert testimony:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education may testify thereto in
the form of an opinion or otherwise.
The determination of the qualification and competency of an expert witness rests within
the sound discretion of the trial court and will not be disturbed absent a showing of abuse
of discretion. State v. Maier, 1999 MT 51, ¶ 88, 293 Mont. 403, ¶ 88, 977 P.2d 298, ¶ 88
(citation omitted). Moreover, "[t]he degree of a witness' qualifications affects the weight
of the expert's testimony, not its admissibility." State v. Martin (1987), 226 Mont. 463,
466, 736 P.2d 477, 479 (citing State v. Berg (1985), 215 Mont. 431, 434, 697 P.2d 1365,
1367).
¶22 Clausell relies on In re K.H., 1999 MT 128, 294 Mont. 466, 981 P.2d 1190, in urging
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us to distinguish between Clinical and Forensic Pathology for purposes of whether an
expert is qualified to testify at a homicide trial. Clausell's reliance is misplaced, if not
disingenuous. In K.H., we held that a social worker with no training regarding Native
American culture was not a "qualified expert witness[]" as that term is used in 25 U.S.C. §
1912(f) of the Indian Child Welfare Act (ICWA). K.H., ¶¶ 28-31. We noted, however, that
the federal ICWA and its subsequently promulgated regulations and guidelines "add a
dimension to expert testimony not normally required under Montana law." K.H., ¶ 23
(internal citations and quotations omitted). Clearly, a "qualified expert witness" pursuant
to the ICWA is not equivalent to an "expert by knowledge, skill, experience, training, or
education" pursuant to Rule 702, M.R.Evid. Thus, K.H. is not applicable here.
¶23 Clausell cites no other legal authority for his assertion that a board certified clinical
pathologist with four hundred autopsies to his credit, including forty gunshot wounds, is
not qualified to offer expert testimony in a homicide case and we decline to adopt such a
rule here. Therefore, we conclude the District Court did not abuse its discretion in
accepting the qualifications of Dr. Schultz to testify as an expert witness.
¶24 Clausell also argues the District Court abused its discretion specifically in allowing
Dr. Schultz to testify as to the probable orientation of the murder weapon based on the
soot and powder burns and the angle of the bullet's trajectory through Trottier's skull and
brain. He contends that, because Dr. Schultz did not examine the gun and was not
qualified in forensics, such testimony was outside his area of expertise. However, as the
State correctly responds, Clausell failed to contemporaneously object to the specific
testimony about which he now complains.
¶25 In order to preserve an objection to the admission of evidence for appeal, the objecting
party must make a timely and specific objection on the record. Rule 103(a)(1), M.R.Evid;
State v. Benson, 1999 MT 324, ¶ 19, 297 Mont. 321, ¶ 19, 992 P.2d 831, ¶ 19. Pursuant to
§ 46-20-104(2), MCA, "[f]ailure to make a timely objection during trial constitutes a
waiver of the objection except as provided in 46-20-701(2)." The reason for the
contemporaneous objection rule of § 46-20-104(2), MCA, is to allow the district court an
opportunity, where possible, to remedy any error and we will not put a trial court in error
where it has not been given such a chance to correct itself, absent an exception to the rule.
See Benson, ¶ 19. See also State v. Stuit (1996), 277 Mont. 227, 230, 921 P.2d 866, 868;
State v. Rodgers (1993), 257 Mont. 413, 418-19, 849 P.2d 1028, 1032.
¶26 Clausell's sole objection to Dr. Schultz's testimony raised the issue of Dr. Schultz's
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qualifications to testify as an expert at a homicide trial. Clausell has not previously argued
that Dr. Shultz's specific testimony regarding soot and powder burns and the bullet
trajectory was outside his area of expertise. Because Clausell has not argued that any of
the exceptions set forth in § 46-20-701(2), MCA, apply here, he has waived any objection
to this issue.
¶27 2. Did the District Court err when it denied Clausell's motion for a directed
verdict of acquittal?
¶28 Section 46-16-403, MCA, permits the trial court in a criminal case to direct a verdict
of acquittal only where the evidence is insufficient to support a finding or verdict of guilty.
"The denial of a motion for a directed verdict is within the sound discretion of the trial
court." State v. Blackcrow, 1999 MT 44, ¶ 18, 293 Mont. 374, ¶ 18, 975 P.2d 1253, ¶ 18.
A directed verdict is not appropriate if, viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could find the essential elements of the crime
beyond a reasonable doubt. Blackcrow, ¶ 18.
¶29 At the end of the State's case-in-chief, Clausell moved for a directed verdict on the
grounds that the State failed to introduce evidence upon which a jury could conclude that
Clausell purposely or knowingly caused Trottier's death. The District Court denied the
motion. On appeal, Clausell contends the District Court abused its discretion in denying
his motion for a directed verdict because gunshot residue tests failed to establish that
either Trottier or Clausell was holding the gun when it was discharged and there was no
other evidence that Clausell was holding the gun when Trottier was shot. In addition,
Clausell contends there was "no well-established motive to prove purpose or knowledge,"
and no evidence of flight.
¶30 In response, the State argues there was sufficient circumstantial evidence from which
any rational trier of fact could infer that Clausell was holding the gun when Trottier was
shot and that Clausell acted purposely or knowingly. The State also points out that neither
motive nor flight are elements of deliberate homicide. We agree with the State on all
counts.
¶31 We have held that "circumstantial evidence alone is sufficient to obtain a conviction."
State v. Lancione, 1998 MT 84, ¶ 37, 288 Mont. 228, ¶ 37, 956 P.2d 1358, ¶ 37.
Moreover, "criminal intent, being a state of mind, is rarely susceptible of direct or positive
proof and therefore must usually be inferred from the facts testified to by witnesses and
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the circumstances as developed by the evidence." State v. Longstreth, 1999 MT 204, ¶ 34,
295 Mont. 457, ¶ 34, 984 P.2d 157, ¶ 34 (citations omitted). Thus, the purposely or
knowingly mental state required to support a criminal conviction may be inferred from
circumstantial evidence such as the acts of the accused and the facts and circumstances
surrounding the offense. See § 45-2-103(3), MCA; State v. Sattler, 1998 MT 57, ¶ 57, 288
Mont. 79, ¶ 57, 956 P.2d 54, ¶ 57. Finally, circumstantial evidence need only be of
sufficient quality and quantity to legally justify a jury in finding guilt beyond a reasonable
doubt, taking into consideration all of the facts and circumstances surrounding the charged
offense collectively. Lancione, ¶ 37.
¶32 In Lancione, the defendant was charged with assaulting his business partner after an
incident in which Lancione allegedly pushed the victim down a stairwell. At trial,
Lancione contended the victim was trying to prevent him from leaving the building and
both men tripped and fell down the stairwell together. Lancione, ¶¶ 7-10. Evidence was
introduced at trial that Lancione confronted the victim in his office, followed him down
the hall as he tried to leave and threatened that he would never make it to the street.
Although there was evidence that the victim traveled a further distance down the stairs
than was likely to result from a mere misstep, the victim testified he did not remember
Lancione pushing him after being knocked unconscious by the fall. Lancione moved for a
directed verdict, arguing there was no direct evidence that he assaulted the victim. The
district court denied his motion and we affirmed, concluding sufficient circumstantial
evidence existed from which the jury could infer Lancione caused the victim to fall down
the stairwell. Lancione, ¶¶ 33-39.
¶33 In the present case, Clausell's version of the shooting at trial was that Trottier had the
gun in her hand and it discharged when he struggled with her while attempting to remove
her from his bedroom. However, the jury heard testimony that a gun powder residue test
of Trottier's hands could not establish that she was holding the gun when it discharged.
The residue test was similarly inconclusive as to Clausell, but he admitted at trial that he
washed his hands upon arriving at the hospital. Moreover, Dr. Schultz testified the bullet
trajectory was such that Trottier would have to have been holding the gun with her non-
dominant hand and at an awkward angle to have inflicted the wound herself.
¶34 The jury also heard testimony at trial that Clausell recounted at least eight different
versions of the facts that were inconsistent with each other and with the physical evidence.
The jury heard testimony that Clausell and Trottier had been involved in a physical
altercation at a bar earlier on the evening of the shooting and that Trottier had driven to
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Clausell's apartment that night and confronted him. Finally, Clausell admitted at trial that
he concealed the gun at his apartment before taking Trottier to the hospital. Thus, strong
circumstantial evidence was introduced at trial from which the jury could decline to accept
Clausell's version of the facts and infer instead that he shot Trottier.
¶35 We conclude from this record, when viewed in the light most favorable to the State,
that sufficient circumstantial evidence existed upon which any rational trier of fact could
determine beyond a reasonable doubt that Clausell purposely or knowingly caused
Trottier's death. See Blackcrow, ¶ 18. Furthermore, Clausell's assertions to the contrary
notwithstanding, neither motive nor flight are elements of the crime of deliberate
homicide. See § 45-5-102(1)(a), MCA. We conclude, therefore, that the District Court did
not abuse its discretion when it denied Clausell's motion for a directed verdict of acquittal.
¶36 3. Did the District Court erroneously instruct the jury on the definition of
"purposely?"
¶37 We review a claim of instructional error in a criminal case to determine "whether the
instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case."
State v. Johnson, 1998 MT 289, ¶ 28, 291 Mont. 501, ¶ 28, 969 P.2d 925, ¶ 28 (citations
omitted). Furthermore, a trial court has broad discretion when it instructs a jury. Johnson,
¶ 28.
¶38 In the present case, the District Court instructed the jury that "a person commits the
offense of DELIBERATE HOMICIDE if he purposely or knowingly causes the death of
another human being." The District Court then instructed the jury on the definition of
purposely as follows: "A person acts purposely with respect to deliberate homicide if it is
his conscious object to cause death or a similar type of harm to another human being."
Incident to giving these instructions, the District Court refused Clausell's proposed jury
instruction on the elements of deliberate homicide, including intent.
¶39 Clausell argues the jury was not properly instructed on the definition of "purposely,"
because the word "similar" does not appear in the statutory definitions of "purposely" or
"deliberate homicide." He contends the jury instruction given lowered the State's burden
of proving every element of the crime charged beyond a reasonable doubt. We disagree.
¶40 Clausell was charged with violation of § 45-5-102, MCA, which provides, in pertinent
part, as follows:
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45-5-102. Deliberate Homicide. (1) A person commits the offense of deliberate
homicide if:
(a) the person purposely or knowingly causes the death of another human being . . . .
Montana Code defines "purposely" as follows:
45-2-101. General definitions. (64) "Purposely"--a person acts purposely with respect
to a result or to conduct described by a statute defining an offense if it is the person's
conscious object to engage in that conduct or to cause that result. When a particular
purpose is an element of an offense, the element is established although the purpose is
conditional, unless the condition negatives the harm or evil sought to be prevented by the
law defining the offense. Equivalent terms, such as "purpose" and "with the purpose",
have the same meaning.
Both parties cited State v. Rothacher (1995), 272 Mont. 303, 901 P.2d 82, as authority for
their respective proposed instructions regarding deliberate homicide and intent.
¶41 In Rothacher, we noted that the statutory definitions of deliberate homicide and
purposely and knowingly must be read with § 45-2-201, MCA, which provides, in
pertinent part, as follows:
(2) If purposely or knowingly causing a result is an element of an offense and the
result is not within the contemplation or purpose of the offender, either element can
nevertheless be established if:
....
(b) the result involves the same kind of harm or injury as contemplated but the
precise harm or injury was different or occurred in a different way, unless the actual
result is too remote or accidental to have a bearing on the offender's liability or on
the gravity of the offense.
We clarified our previous line of decisions applying these statutes and held that the mental
state for deliberate homicide can be established if the result involves the same or similar
kind of harm or injury as contemplated by the defendant, although the actual degree of
injury is greater than intended. Rothacher, 272 Mont. at 306-07, 901 P.2d at 84-85; see
also State v. Lantis, 1998 MT 172, ¶ 35, 289 Mont. 480, ¶ 35, 962 P.2d 1169, ¶ 35.
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¶42 Thus, pursuant to Rothacher, the District Court did not lower the State's burden when
it instructed the jury that a person acts purposely with respect to deliberate homicide if it is
his conscious object to cause death or a similar type of harm. We conclude, therefore, that
the District Court did not abuse its discretion in instructing the jury on the definition of
"purposely."
¶43 4. Did the State prejudice Clausell's right to a fair and impartial trial by
commenting on facts not of record?
¶44 Clausell next argues the prosecutor made two improper statements during closing
arguments in which he discussed and commented on evidence not of record, prejudicing
Clausell's constitutional right to a fair trial. However, as the State correctly points out,
Clausell asserts this argument for the first time on appeal.
¶45 Again, pursuant to § 46-20-104(2), MCA, if a party fails to timely object at trial the
objection is waived. Clausell failed to contemporaneously object to either of the
statements about which he now complains. Nor did Clausell assert error after closing
arguments, either by objection or motion to strike or for a mistrial. Because he has not
argued any of the exceptions to the contemporaneous objection rule set forth in § 46-20-
701(2), MCA, apply here, we conclude this issue is not properly before us on appeal.
¶46 5. Did the District Court err when it admitted the testimony of police officer
Steve Swanson regarding pre-Miranda statements made by Clausell?
¶47 Billings Police Officer Steve Swanson was the first police officer to respond once
hospital personnel informed the police there was a gunshot victim in the emergency room.
At trial, Officer Swanson testified regarding the initial conversation he had with Clausell
in which Clausell recounted a version of the events leading up to Trottier's injury
inconsistent with the version he recounted at trial.
¶48 On appeal, Clausell argues that Officer Swanson failed to read him the Miranda
warnings before they spoke and, therefore, that the testimony should have been stricken
from the record. However, Clausell fails to support this argument with any analysis of or
citation to legal authority as required by Rule 23(a)(4), M.R.App.P. We have previously
held that the obligation to establish error by a district court falls squarely on the appellant.
See State v. Carter (1997), 285 Mont. 449, 461, 948 P.2d 1173, 1180. It is not this Court's
obligation to conduct legal research on an appellant's behalf or to develop legal analysis
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that may lend support to his position. Johansen v. State, Dept. of Natural Resources, 1998
MT 51, ¶ 24, 288 Mont. 39, ¶ 24, 955 P.2d 653, ¶ 24 (citing Carter, 285 Mont. at 461, 948
P.2d at 1180). Without citation to legal authority, Clausell fails to establish error.
¶49 Moreover, Clausell failed to object at trial or otherwise raise this issue before the trial
court. Because Clausell does not argue that any exception to the contemporaneous
objection rule is applicable, his arguments are not properly before us. See section 46-20-
104(2), MCA. Clausell having failed to support his argument with citation to legal
authority and having failed to preserve the issue for appeal, we decline to address this
issue further.
¶50 6. Did the State violate Clausell's right to due process and privilege against self-
incrimination by commenting on Clausell's post-Miranda silence and is this issue
reviewable under the common law plain error doctrine?
¶51 As a preliminary matter, Clausell concedes he failed to object at trial to any of the
comments about which he now complains. Rather, he contends this issue should be
reviewed under the common law doctrine of plain error pursuant to State v. Finley (1996),
276 Mont. 126, 915 P.2d 208. In Finley, we articulated the common law exception to the
contemporaneous objection rule as follows:
[T]his Court may discretionarily review claimed errors that implicate a criminal
defendant's fundamental constitutional rights, even if no contemporaneous objection
is made and notwithstanding the inapplicability of the § 46-20-701(2), MCA,
criteria, where failing to review the claimed error at issue may result in a manifest
miscarriage of justice, may leave unsettled the question of the fundamental fairness
of the trial or proceedings, or may compromise the integrity of the judicial process.
Finley, 276 Mont. at 137, 915 P.2d at 215 (followed in State v. Sullivan (1996), 280 Mont. 25, 31, 927
P.2d 1033, 1037-38).
¶52 In Finley, as in the present case, the defendant argued that statements made by the
prosecution during trial regarding the defendant's post-arrest silence violated his right to
due process and privilege against self-incrimination. Finley, 276 Mont. at 132, 915 P.2d at
212. After observing in Finley that the right to due process and the privilege against self-
incrimination are both, undeniably, fundamental constitutional rights, we concluded that
failure to review such claims would have left unsettled a question as to the fundamental
fairness of the trial. Finley, 276 Mont. at 138, 915 P.2d at 216. Because Clausell's claims
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of error in the present case mirror those of the defendant in Finley, we conclude plain error
review is appropriate in this case.
¶53 We note that we have recently declined to apply the common law plain error doctrine
to review a defendant's assertions that prosecutorial comment on the defendant's post-
Miranda silence violated his right to due process and his privilege against self-
incrimination. State v. Baker, 2000 MT 307, ___ Mont.___, 15 P.3d 379. In Baker, we
acknowledged that the defendant's argument implicated fundamental rights, but concluded
the defendant had failed to demonstrate that any fundamental unfairness would result if
the issue were not reviewed because his claims of error had no merit. Baker, ¶¶ 14-15. By
contrast, in Finley, 276 Mont. at 138, 915 P.2d at 216, and again in Sullivan, 280 Mont. at
32-33, 927 P.2d at 1037-38, we concluded that failure to apply plain error to review a
defendant's claim of prosecutorial comment on post-Miranda silence would be
fundamentally unfair precisely because the rights at issue were so important.
¶54 This apparent inconsistency in our application of plain error doctrine is not isolated. It
seems that in some cases we invoke plain error merely because the claimed error
implicates a right so fundamental that failure to review would be fundamentally unfair,
see, e.g., State v. Brown, 1999 MT 31, ¶ 12, 293 Mont. 268, ¶ 12, 975 P.2d 321, ¶ 12;
Finley, 276 Mont. at 138, 915 P.2d at 216; Sullivan, 280 Mont. at 32-33, 927 P.2d at 1037-
38, while in other cases we review the merits of a claimed error which implicates
fundamental constitutional rights before determining whether fundamental fairness and
justice requires the invocation of plain error doctrine. See, e.g., Baker, ¶¶ 14-19, State v.
Hart, 2000 MT 332, ¶¶ 50-53, ___ Mont. ___, ¶¶ 50-53, 15 P.3d 917, ¶¶ 50-53. Compare
also State v. Weaver, 1998 MT 167, ¶¶ 23-27, 290 Mont. 58, ¶¶ 23-27, 964 P.2d 713, ¶¶
23-27; with State v. Harris, 1999 MT 115, ¶¶ 10-12, 294 Mont. 397, ¶¶ 10-12, 983 P.2d
881, ¶¶ 10-12. In a third group of cases, we forgo analysis and simply decline to exercise
our discretionary power of plain error without comment, regardless of whether
fundamental rights were implicated by a claimed error. See, e.g., State v. Weaselboy, 1999
MT 274, ¶ 17, 296 Mont. 503, ¶ 17, 989 P.2d 836, ¶ 17; State v. Herrera, 1998 MT 1180,
¶¶ 18-20, 289 Mont. 499, ¶¶ 18-20, 962 P.2d 1180, ¶¶ 18-20.
¶55 That said, it is unnecessary to resolve this inconsistency here--neither party has argued
that Baker is applicable and the State concedes that plain error review is appropriate in the
present case. Rather, we will leave the clarification of our plain error jurisprudence to a
future case, inviting other litigants to address and brief this issue. We turn, therefore, to
Clausell's substantive arguments.
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¶56 Relying on Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d. 91,
Clausell argues the State violated his right to due process and his privilege against self-
incrimination by improperly commenting on his silence after having received Miranda
warnings. In Doyle, a state prosecutor sought to impeach the defendants' exculpatory
statements offered for the first time at trial by asking the defendants on cross-examination
why they had failed to offer such explanations at the time of arrest. Doyle, 426 U.S. at 616-
17, 96 S.Ct. at 2243-44. The United States Supreme Court held that, because Miranda
warnings carry the implicit assurance that silence will carry no penalty for a defendant
who chooses not to make a statement, it would be fundamentally unfair and a deprivation
of due process to allow the prosecution to use an arrested person's silence to impeach an
explanation subsequently offered at trial. Doyle, 426 U.S. at 618, 96 S.Ct. at 2245.
¶57 Our application of the Doyle rule in Sullivan, is instructive to the present discussion.
There, the prosecution elicited testimony during its case-in-chief that the defendant twice
refused to give a statement to investigating law enforcement officers after having received
Miranda warnings. The prosecution also commented on the defendant's refusal to give a
statement during opening and closing arguments, in both cases implying the defendant
would have spoken to law enforcement officials if he were innocent. Sullivan, 280 Mont.
at 29-31, 927 P.2d at 1036. We concluded the testimony and the opening and closing
statements constituted Doyle error and violated the defendant's due process rights and
privilege against self incrimination. Sullivan, 280 Mont. at 36-37, 927 P.2d at 1040.
¶58 Although not entirely clear, Clausell appears to assert there were three separate
instances in the present case where the prosecution impermissibly commented on
Clausell's post-Miranda silence: during the State's case-in-chief and during opening and
closing arguments. The State responds that Clausell has not pointed to any instance in
which the prosecution commented on his refusal to give a statement after he received
Miranda warnings and, therefore, there is no Doyle error. We agree.
¶59 Clausell's first assertion of Doyle error stems from the State's examination of
Detective Ronald Cummings. Detective Cummings testified regarding Clausell's formal
arrest and the subsequent investigation. The prosecutor asked whether the police
department followed an arrest procedure and Detective Cummings responded that Clausell
was advised of his rights, invoked his right to an attorney and was not questioned further
after that. However, Detective Cummings did not otherwise mention the Miranda
warnings in his testimony. Unlike the situations in Doyle and Sullivan, at no point during
the direct or re-direct examination did either Detective Cummings or the prosecutor
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suggest or imply that Clausell refused to give a statement after requesting an attorney.
Clausell, on the other hand, testified that he tried to make further statements after invoking
his right to counsel, but that police refused to talk to him. Indeed, part of Clausell's
defense was to draw attention to his willingness to cooperate with police. Thus, not only
does the record fail to support Clausell's assertion that the prosecution commented his post-
Miranda silence, it does not support his assertion that he was silent after he received
Miranda warnings.
¶60 Clausell next asserts the State committed Doyle error when, during opening
arguments, the prosecutor commented that Clausell did not refer to a gun or a gunshot
wound when telling hospital personnel how Trottier was injured. Importantly, Clausell
does not suggest the prosecutor commented on his refusal to give a statement. Rather,
Clausell asserts the prosecutor commented on his omission of a crucial fact--that Trottier
had been shot--in earlier statements. We have previously observed that the Doyle rule
"does not apply to language that merely inquires into prior inconsistent statements. Such
comment makes no unfair use of silence, because a defendant who voluntarily speaks after
receiving Miranda warnings has not been induced to remain silent." State v. Wimen
(1989), 236 Mont. 180, 187, 769 P.2d 1200, 1204 (citing Anderson v. Charles (1980), 447
U.S. 404, 408, 100 S.Ct. 2180, 2188, 65 L.Ed.2d 222). The fact that Clausell did not
mention a gun in one or more of his statements is not silence and the Doyle rule cannot be
applied to preclude the State in the present case from comparing Clausell's inconsistent
statements.
¶61 Moreover, Clausell gave five different accounts of how Trottier was injured between
arriving at the hospital and being arrested and Mirandized. Thus, he had not received
Miranda warnings prior to making any of the statements which the State referred to in
opening arguments. The Doyle rule is limited to only those instances where the
prosecution seeks to impeach a defendant's testimony based on silence after Miranda
warnings were given. See Fletcher v. Weir (1982), 455 U.S. 603, 607, 102 S.Ct. 1309,
1311-12, 71 L.Ed.2d 490; and Finley, 276 Mont. at 139, 915 P.2d at 216. Thus, the
prosecutor's comment on Clausell's failure to mention a gun or gunshot wound to medical
personnel before police arrived was a comment on Clausell's pre-Miranda statements,
rather than on post-Miranda silence and, therefore, did not constitute Doyle error.
¶62 Finally, Clausell asserts the State committed Doyle error during closing arguments
when the prosecution commented that Clausell's version of the facts at trial was
inconsistent with the versions he gave earlier to hospital personnel and police, implying
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that he had spent the seven months between the shooting and trial thinking of a believable
story. Again, no construction of the Doyle rule can be read to preclude the State from
comparing the inconsistent, voluntary statements of a defendant. See Wimen, 236 Mont. at
187, 769 P.2d at 1204.
¶63 On this record, we conclude Clausell has failed to establish that the State improperly
commented on his post-Miranda silence pursuant to Doyle. We hold, therefore, that the
State did not violate Clausell's right to due process or his privilege against self-
incrimination.
CONCLUSION
¶64 In summary, we hold the District Court did not abuse its discretion in admitting the
testimony of the State's expert pathologist, in denying Clausell's motion for a directed
verdict or in instructing the jury on the definition of "purposely;" we conclude Clausell's
arguments that the prosecutor commented on evidence not of record and that the District
Court improperly admitted testimony regarding Clausell's pre-Miranda statements are not
properly before us on appeal and we decline to consider them; and we hold the State did
not improperly comment on Clausell's post-Miranda silence in violation of his right to due
process and privilege against self incrimination. Accordingly, we affirm Clausell's
conviction and sentence.
¶65 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
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