No. 01-353
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 99N
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DARLA JEAN HAKALA,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Kurt Krueger, Judge presiding.
COUNSEL OF RECORD:
For Appellant :
Patrick D. McGee, Francis P. McGee, Attorneys at Law
Butte, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Carol E. Schmidt,
Assistant Attorney General, Helena, Montana
Robert McCarthy, Silver Bow County Attorney; Samm Cox,
Deputy County Attorney, Butte, Montana
Submitted on Briefs: March 7, 2002
Decided: May 10, 2002
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a
public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 A jury in the Second Judicial District Court, Silver Bow
County, found Darla Jean Hakala guilty of burglary. She appeals
from the resulting judgment against her. We affirm.
¶3 On appeal, Hakala argues she was not afforded effective
assistance of counsel, was denied a fair trial, and should have
been granted a mistrial.
¶4 Hakala's claims of ineffective assistance of counsel are based
on her counsel's alleged failures to object to various
"indiscretions and innuendos" by the State of Montana (State) and
the District Court at trial. The record is silent as to the
reasons trial counsel failed to raise the objections Hakala now
advances. A silent record cannot rebut the strong presumption that
counsel's conduct falls within the acceptable wide range of
reasonable professional assistance. State v. White, 2001 MT 149, ¶
13, 306 Mont. 58, ¶ 13, 30 P.3d 340, ¶ 13 (citation omitted).
Where the record does not illuminate the basis for the challenged
acts or omissions of defense counsel, objections to those acts or
omissions must be raised in a petition for postconviction relief.
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Hagen v. State, 1999 MT 8, ¶¶ 12, 15, 293 Mont. 60, ¶¶ 12, 15, 973
P.2d 233, ¶¶ 12, 15. Therefore, we decline to consider Hakala's
ineffective assistance of counsel claims in the context of this
appeal.
¶5 Hakala also contends her conviction should be reversed under a
"revised" common law plain error doctrine on grounds she was denied
a fair trial. This claim is based on the same "indiscretions and
innuendos" by the State and the District Court which form the basis
for Hakala's ineffective assistance of counsel claims.
¶6 We have stated our standard of review for plain error 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.
State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215,
rev'd on other grounds, State v. Gallagher, 2001 MT 39, 304 Mont.
215, 19 P.3d 817. We decline to adopt Hakala's differently-worded
standard at this time. Further, we have reviewed the record and
conclude Hakala has not established error justifying our
discretionary plain error review.
¶7 Hakala's motion for a mistrial was based on witnesses'
unsolicited comments that the victim had been burglarized on other
occasions. In a non-responsive answer to questioning by defense
counsel, the burglary victim stated this was the third time he had
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been burglarized. In addition, the officer who investigated the
burglary stated--in response to defense counsel's questioning--that
there was another suspect, but that was in "another burglary that
occurred at [the victim's] house." After the State pointed out no
one had indicated or testified that Hakala was responsible for the
other burglaries, the court denied defense counsel's motion for a
mistrial, noting also that the information had been elicited during
defense counsel's questioning.
¶8 When reviewing a denial of a motion for mistrial, this Court
determines whether the district court abused its discretion. State
v. Scarborough, 2000 MT 301, ¶ 81, 302 Mont. 350, ¶ 81, 14 P.3d
1202, ¶ 81 (citations omitted). A mistrial is appropriate where
there is a reasonable possibility that inadmissible evidence might
have contributed to the conviction. Scarborough, ¶ 81 (citation
omitted). Because the unsolicited testimony about the other
burglaries of the victim's home did not suggest that those
burglaries were connected to Hakala in any way, we conclude there
is no reasonable possibility that the evidence, even if
inadmissible, might have contributed to Hakala's conviction.
¶9 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
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