August 4 2009
DA 08-0495
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 256
STATE OF MONTANA,
Plaintiff and Appellee,
v.
CHRISTOPHER WILLIAM WAGNER,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DC-07-97C
Honorable John C. Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender; Koan Mercer, Assistant Appellate
Defender, Helena, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Mark W. Mattioli,
Assistant Attorney General, Helena, Montana
Marty Lambert, Gallatin County Attorney; Todd Whipple, Deputy County
Attorney, Bozeman, Montana
Submitted on Briefs: June 9, 2009
Decided: August 4, 2009
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Christopher William Wagner (Wagner) appeals from a jury verdict, judgment and
sentence of the Eighteenth Judicial District Court, Gallatin County, convicting him of
attempted deliberate homicide with a weapon. We reverse and remand for a new trial.
¶2 The sole issue on appeal is whether the prosecutor’s repeated comments at trial
regarding statements Wagner made after invoking his Miranda rights created an
inference of guilt that constituted plain error.
BACKGROUND
¶3 This case arises from a gun fight in which Wagner and Michael Peters (Peters)
shot each other. Peters dated Melody Lark (Lark) from 1996 through 2000 in Bozeman,
and they remained friends afterwards. Lark dated Wagner in Colorado for about four
months in the summer of 2004, and then after travelling for a few months, she lived with
Wagner for about five months. The relationship deteriorated while they lived together.
Lark began to fear Wagner because he was often angry, paranoid, under the influence of
methamphetamine, shot guns around his property, and discussed harming himself or
others. Eventually Lark ended the relationship and moved out.
¶4 Lark testified that Wagner assaulted her the evening of October 8, 2005, after their
relationship had ended. Wagner approached her from behind and knocked her out. She
woke up outside with her head and ears bleeding. She went inside, but Wagner was there
and took her phones away when she tried to call for help. Wagner eventually agreed to
take her to a friend’s house. Lark was later diagnosed with a skull fracture and traumatic
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brain injury. The doctor reported that her head injury was caused by an instrument
hitting her head three or more times. Peters flew to Denver to visit Lark in the hospital
following the assault.
¶5 The State of Colorado filed felony assault charges against Wagner. While the
charges were pending, Wagner was released on bail with a GPS tracker around his ankle.
Wagner removed the GPS tracker and fled Colorado.
¶6 Wagner came to Montana where he went by the name Curt Warren (and other
aliases) and told people that his pregnant wife had died in a car accident. In early January
2007, Wagner hired a private investigator to find Peters’ address. The investigator
provided three addresses in Bozeman. About January 11, 2007, Wagner went looking for
Peters at his home. Peters’ father, John, answered the door and told Wagner that Peters
was not home. Wagner told John to tell Peters that his friend, Jim, was passing through
town. When John asked where he was from, Wagner hesitated before replying Kalispell.
John thought that it was unusual that the man, who looked like a vagrant, had walked to
his house on a very cold day. Later John recounted the incident to Peters, who did not
know a Jim from Kalispell. Peters became concerned that the visitor was Wagner. Peters
was afraid due to Wagner’s attack on Lark and a previous assault when Wagner had
beaten and stabbed an ex-girlfriend’s boyfriend. Peters renewed his concealed weapons
permit and asked Lark to email him a picture of Wagner. Peters’ father could not
positively confirm from the picture whether the man who had visited was Wagner.
¶7 On January 17, 2007, Peters left his house around noon. As he started to drive
away in his truck, Peters noticed a person walking down the street towards him. The man
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flagged Peters down and he rolled down the window to talk. The man asked Peters if he
had seen a little white dog, but then pulled a gun on him. Peters figured that the man
must be Wagner, whom he viewed as a “deadly person” intending to kill or torture him.
Wagner ordered Peters to scoot over. Peters began to do so, but when Wagner grabbed
the door handle, Peters shot at him. Peters fired two shots, which hit Wagner in the chest,
before his gun jammed. Wagner then fired at Peters, hitting him three times: grazing his
cheek, piercing his abdomen, and puncturing his hand. Peters escaped out the passenger
door and ran into his house. His father called 911, but Wagner had fled by the time the
police arrived. Peters willingly told the police what occurred.
¶8 At trial, Wagner provided a different version of events. Wagner claims he sought
Peters in order to help him reconnect with Lark. Wagner testified that he returned to
Peters’ house to find out whether the older man he had spoken with before could give
him any information on how to contact Peters. As he approached the house, Wagner
noticed a truck back out of the driveway and drive towards him. Wagner claimed he
gave a little wave to the driver and the truck stopped. According to Wagner, the driver
then pointed a gun out the window and fired two shots at him. Wagner testified that
when he shot back he was attempting to shoot the gun out of Peters’ hand.
¶9 Although Wagner had been shot twice, he was able to walk away from the scene.
Later Wagner asked a stranger for a ride. Wagner told the man that he had injured
himself falling on the ice. Wagner got a ride to the Filling Station and then walked to a
storage unit he had rented nearby. From there, Wagner called a friend who agreed to pick
him up. Wagner told his friend that he had been stabbed in a bar that morning. Wagner
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tended to his wounds at his friend’s apartment and then called another friend to pick him
up. Wagner stayed with his friend in Ennis for a few days, then got a ride to Greybull,
Wyoming, where he stayed with another acquaintance. Wagner was arrested in Greybull
a few days later on January 25, 2007.
¶10 Detectives Cindy Crawford and Tom Pallach of the Gallatin County Sheriff’s
Office travelled to Greybull to interview Wagner as part of their investigation of the
shooting. The detectives met with Wagner on January 26, 2007. After advising Wagner
of his Miranda rights, Wagner indicated that he wanted to speak to a lawyer, saying that
he didn’t want to dig himself a deeper hole.
¶11 The prosecutor referenced this comment four times at Wagner’s trial in May 2008.
In his opening statement, the prosecutor said, “On January 26th, 2007, upon being
interviewed by the police detectives, and asked whether he’d like to make a comment, he
simply says, I don’t want to dig myself a deeper hole.” Then during the State’s case-in-
chief, the prosecutor asked Detective Crawford on direct examination whether Wagner
made any statements or admissions after being advised of his Miranda rights. Crawford
replied, “Mr. Wagner stated something to the effect where he wanted to speak to an
attorney first and he said, don’t want to dig myself a deeper hole.” Later the prosecutor
ended his cross-examination of Wagner by questioning him regarding the statement:
Q. Okay. When you were arrested, you told the Detectives that you didn’t
want to talk to ‘em and dig yourself a deeper hole, right?
A. Yes.
Q. And today you explained that as nothing I was going to say was going to
help you.
A. Yeah, there was no point of saying anything.
Q. No point in telling the story back in January of 2007?
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A. It wasn’t going to help change anything.
Q. So, 17 months, or 16 months later, this is when you tell this story today?
A. Yes.
Finally, in his closing argument, the prosecutor stated:
Somebody was right and somebody was wrong. So you have to choose
who you believe. Do you believe Michael Peters who, from the very
beginning, said, yeah, I shot this guy. I shot him first, and here’s why. Or,
do you believe the Defendant, who doesn’t want to dig himself a deeper
hole.
Wagner’s counsel did not object to these repeated prosecutorial comments.
STANDARD OF REVIEW
¶12 This Court may discretionarily review claimed errors that implicate a criminal
defendant’s fundamental constitutional rights, even if no contemporaneous objection was
made, “where failing to review the claimed error 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. Godfrey,
2004 MT 197, ¶ 22, 322 Mont. 254, 95 P.3d 166 (citing State v. Finley, 276 Mont. 126,
137, 915 P.2d 208, 215 (1996), overruled on other grounds by State v. Gallagher, 2001
MT 39, 304 Mont. 215, 19 P.3d 817). We use our inherent power of common law plain
error review sparingly. Godfrey, ¶ 22.
DISCUSSION
¶13 Whether the prosecutor’s repeated comments at trial regarding statements
Wagner made after invoking his Miranda rights created an inference of guilt that
constituted plain error.
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¶14 Since Wagner did not object to the prosecutor’s repeated comments at trial, our
review requires application of the common law plain error doctrine. Wagner argues that
the prosecutor’s comments “leave unsettled the fundamental fairness of the trial” by
impermissibly using Wagner’s invocation of Miranda rights against him to attack his
credibility and create an inference of guilt. Thus, Wagner claims that the State’s repeated
and deliberate use of his invocation of the right to silence warrants reversal under plain
error review. We agree.
¶15 The United States Constitution’s privilege against self-incrimination and right to
due process prohibit the State from using a defendant’s invocation of Miranda rights
against him at trial. U.S. Const. amends. V, XIV. The United States Supreme Court
described the privilege against self-incrimination as “the hallmark of our democracy,”
explaining that:
the constitutional foundation underlying the privilege is the respect a
government—state or federal—must accord to the dignity and integrity of
its citizens. To maintain a “fair state-individual balance,” to require the
government “to shoulder the entire load,” to respect the inviolability of the
human personality, our accusatory system of criminal justice demands that
the government seeking to punish an individual produce the evidence
against him by its own independent labors, rather than by the cruel, simple
expedient of compelling it from his own mouth. In sum, the privilege is
fulfilled only when the person is guaranteed the right “to remain silent
unless he chooses to speak in the unfettered exercise of his own will.”
Miranda v. Arizona, 384 U.S. 436, 460, 86 S. Ct. 1602, 1620 (1966) (internal citations
omitted). The Supreme Court required procedural safeguards, in the form of Miranda
warnings, to protect these constitutional rights from the inherent coercion of custodial
interrogation.
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We have concluded that without proper safeguards the process of in-
custody interrogation of persons suspected or accused of crime contains
inherently compelling pressures which work to undermine the individual’s
will to resist and to compel him to speak where he would not otherwise do
so freely. In order to combat these pressures and to permit a full
opportunity to exercise the privilege against self-incrimination, the accused
must be adequately and effectively apprised of his rights and the exercise of
those rights must be fully honored.
Miranda, 384 U.S. at 467, 86 S. Ct. at 1624.
¶16 The Supreme Court held in Doyle v. Ohio that a prosecutor’s impeachment use of
a defendant’s silence after receiving Miranda warnings was fundamentally unfair because
Miranda warnings inform a person of his right to remain silent and assure him that his
silence will not be used against him. 426 U.S. 610, 618-19, 96 S. Ct. 2240, 2245 (1976).
The Supreme Court held that “the use for impeachment purposes of petitioners’ silence,
at the time of arrest and after receiving Miranda warnings, violated the Due Process
Clause of the Fourteenth Amendment.” Doyle, 426 U.S. at 619, 96 S. Ct. at 2245.
Underlying Doyle is the principle that Miranda warnings contain an implicit assurance
that exercising Miranda rights will carry no penalty and that “it would be fundamentally
unfair and a deprivation of due process to allow the arrested person’s silence to be used to
impeach an explanation subsequently offered at trial.” Doyle, 426 U.S. at 618, 96 S. Ct.
at 2245.
¶17 This Court has held that Doyle error implicates fundamental constitutional rights
that can warrant plain error review. Godfrey, ¶ 24; State v. Sullivan, 280 Mont. 25, 32-
33, 927 P.2d 1033, 1038 (1996); Finley, 276 Mont. at 138, 915 P.2d at 216. In the
context of Doyle error, reversal under plain error review is appropriate when the Court is
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firmly convinced that the “prosecutor’s comments created an inference for the jury that
by remaining silent after receiving his rights, the defendant must be guilty of the alleged
crime.” Godfrey, ¶ 38; see also Sullivan, 280 Mont. at 36-37, 927 P.2d at 1040.
¶18 In State v. Sullivan, this Court held that the prosecutor committed Doyle error
when he commented on Sullivan’s post-Miranda silence during the State’s opening
statement, case-in-chief, and closing argument. 280 Mont. at 35, 927 P.2d at 1039.
We conclude that the four separate comments made in the State’s opening
statement, during the testimony of Detective Shaw, and during the State’s
closing argument regarding Sullivan’s post-Miranda silence were not
harmless beyond a reasonable doubt. These comments and testimony that
Sullivan declined to give a statement to law enforcement officers after
being advised of his Miranda rights violated Sullivan’s right to due process.
By making these comments, the State created an inference for the jury that,
by remaining silent after having been read his rights, Sullivan was guilty of
deliberate homicide.
Sullivan, 280 Mont. at 36, 927 P.2d at 1039-40. The Court reversed based on this plain
error. The facts here are similar to those in Sullivan. As in Sullivan, the prosecutor here
used Wagner’s post-Miranda silence in all phases of the trial: during his opening
statement, his case-in-chief, his cross-examination of Wagner, and his closing argument.
¶19 Wagner invoked his Miranda rights when he requested to speak with an attorney.
Detective Crawford testified that she was present when “Detective Palash [sic] read him
his rights per Miranda, and Mr. Wagner stated something to the effect where he wanted
to speak to an attorney first and he said, don’t want to dig myself a deeper hole.” This
was an effective invocation of Wagner’s Miranda rights. The United States Supreme
Court has explained, “[w]ith respect to post-Miranda warnings ‘silence,’ we point out
that silence does not mean only muteness; it includes the statement of a desire to remain
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silent, as well as of a desire to remain silent until an attorney has been consulted.”
Wainwright v. Greenfield, 474 U.S. 284, 295 n. 13, 106 S. Ct. 634, 640 n. 13 (1986). In
Doyle, the Supreme Court understood “silence” to include the defendant’s response of
“[w]hat’s this all about?” Doyle, 426 U.S. at 614 n. 5, 96 S. Ct. at 2243 n. 5. Thus,
Wagner’s request to speak with an attorney and his comment that he didn’t want to dig
himself a deeper hole is a sufficient invocation of his right to remain silent.
¶20 The prosecutor used Wagner’s post-Miranda silence to create an inference of
guilt. The prosecutor relied on Wagner’s failure to tell his version of events until trial as
evidence of his guilt. On cross-examination, the prosecutor asked Wagner about his
initial interview with the police:
Q. No point in telling the story back in January of 2007?
A. It wasn’t going to help change anything.
Q. So, 17 months, or 16 months later, this is when you tell this story today?
A. Yes.
Clearly the prosecutor was overreaching. His questions were designed to create an
inference that, by declining to give his version of events after invoking his Miranda
rights, Wagner must be guilty. Further, the prosecutor implied that Wagner’s post-
Miranda statement that he didn’t want to dig a deeper hole was an admission of guilt.
The prosecutor ended his cross-examination of Wagner by enumerating the multiple lies
that Wagner told people in his search for Peters and after the shooting. The prosecutor
elicited at least 21 acknowledged lies told by Wagner. This line of questioning was
sufficient to undermine Wagner’s credibility in front of the jury. However, the
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prosecutor went too far by impermissibly implying that Wagner’s failure to tell his story
earlier or his comment about digging a deeper hole was evidence of his guilt.
¶21 This inference of guilt caused actual prejudice to Wagner constituting plain error.
A fundamental aspect of “plain error,” is that the alleged error indeed must
be “plain.” In a case such as this, it should leave one firmly convinced, as
we were in Sullivan, that the prosecutor’s comments created an inference
for the jury that by remaining silent after receiving his rights, the defendant
must be guilty of the alleged crime.
Godfrey, ¶ 38. Thus, we hold that the prosecutor’s conduct raises questions regarding the
fundamental fairness of the trial by violating Wagner’s constitutional right to due process
and privilege against self-incrimination.
¶22 Reversed and remanded for a new trial consistent with this opinion.
/S/ MIKE McGRATH
We concur:
/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ BRIAN MORRIS
Justice Jim Rice, dissenting.
¶23 We exercise plain error review “when failure to do so may result in a manifest
miscarriage of justice, leave unsettled the fundamental fairness of the proceedings, or
compromise the integrity of the judicial process.” State v. Lacey, 2009 MT 62, ¶ 74, 349
Mont. 371, 204 P.3d 1192 (citation omitted). I do not believe these reasons exist here.
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¶24 I would affirm on the basis of the case explanation given by the Court in ¶¶ 3-9.
The Court cannot even explain the facts of this case without exposing Wagner’s ludicrous
tale of lies, such as his telling a friend after the shooting incident that “he had been
stabbed in a bar that morning.” Opinion, ¶ 9. The jury did not believe, and no jury
would, Wagner’s claim that, while on the run from the law, he loaded a gun and went to
Peters’ house simply “to find out whether the older man he had spoken with before could
give him any information on how to contact Peters,” particularly given Wagner’s history
of sadistic and vengeful violence toward his victims. Opinion, ¶ 8.
¶25 Wagner sat by idly and failed to object while the prosecutor made multiple
references to the comment he now challenges. Had he brought the issue to the District
Court’s attention by making a single objection, the court could have sustained the
objection and instructed the jury about the comment. Wagner now gets the benefit of his
own inaction, perhaps a strategy he purposefully employed. Regardless, a new trial
should not be his reward in light of the overwhelming evidence against him. No
“miscarriage of justice” occurred here for which plain error review is necessary. While
victims must sometimes be inconvenienced by a re-trial so that the integrity of the
judicial process can be preserved, the only “miscarriage of justice” in this case is putting
the victims through the trauma of a second showing of Wagner’s utterly unbelievable
assertions.
¶26 I would not grant plain error review, and would affirm.
/S/ JIM RICE
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