State v. R. Zitnik

07/11/2023

DA 21-0466
Case Number: DA 21-0466

IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 131

STATE OF MONTANA,

Plaintiff and Appellee,

v.

RYAN HUNTER ZITNIK,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. BDC 20-308
Honorable Mike McMahon, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Jeff N. Wilson, Assistant Appellate
Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana

Kevin Downs, Lewis and Clark County Attorney, Fallon Stanton, Deputy
County Attorney, Helena, Montana

Submitted on Briefs: May 24, 2023

Decided: July 11, 2023

Filed:

__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Ryan Hunter Zitnik (Zitnik) appeals his convictions and sentence entered in the First

Judicial District Court, Lewis and Clark County, for negligent vehicular assault,

§ 45-5-205, MCA; resisting arrest, § 45-7-301, MCA; and disorderly conduct,

§ 45-8-101(1)(a)(iii), MCA. Zitnik argues the District Court erred when it communicated

with the jury during deliberations while neither counselor nor Zitnik were present. Zitnik

maintains he was denied his right to be present at critical stages of his trial and his right to

a public trial.1

¶2 We reverse and restate the issue on appeal:

Did the District Court commit reversible error by responding to the jury’s questions
about the definition and timing of “arrest” without first consulting the defendant
and counsel on the record?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On January 12, 2020, around midnight, Tara Yancy (Yancy) heard a loud bang in a

field near her home on the west side of Helena. She saw that a vehicle had crashed and

went out to see if anyone needed help. Yancy found an unconscious male in the driver seat

with blood on his forehead and a female on the passenger side of the floorboard slumped

over and bleeding. Yancy shook the man and asked his name. He identified himself as

Ryan Zitnik and complained of pain along his sternum. Yancy called emergency services.

Officer Domingo Leveque-Zapata responded to the accident and observed Zitnik had facial

1
We decline to address Zitnik’s argument regarding his right to a public trial because the violation
of his right to be present at critical stages of his trial is dispositive.
2
injuries. He also noticed Zitnik’s breath had a strong odor of alcohol and that his eyes were

bloodshot and watery. When questioned by the officers, Zitnik responded it was none of

the officers’ business to know how much Zitnik had to drink. Rather, Zitnik was focused

on the passenger’s well-being. Officer Jay Lopez arrived and transported Zitnik to the

hospital. During transport, he informed Zitnik he was under arrest for driving under the

influence of alcohol (DUI). Meanwhile, an ambulance transported the passenger, Rachel

Combs (Combs), to the hospital.

¶4 While at the hospital, the officers continued their investigation of Zitnik for DUI.

Officer Lopez read Zitnik two alcohol screening test advisories. Zitnik refused to provide

a blood sample. Officer Lopez told Zitnik again he was under arrest for DUI but did not

handcuff Zitnik so that medical staff could continue to provide Zitnik with care. Instead,

Officer Zapata monitored Zitnik while standing outside his hospital room, situated between

Zitnik’s room and the emergency room (ER) where Combs was being treated. Officer

Lopez, in turn, sought a search warrant for Zitnik’s blood sample.

¶5 A nurse tending to Zitnik’s injuries noted his anxiety and concern for Combs’s

well-being. Zitnik repeatedly inquired if he could see Combs to check on her. Zitnik heard

Combs crying in pain from the other side of the nurses’ station. He ran out of his room

towards her room. Officer Zapata followed Zitnik, calling out his name, and tackled Zitnik

to the ground telling him to “get down.” Officer Zapata told him “[y]ou’re not gonna

interfere with what [the hospital staff is] doing.” A hospital staffer held down Zitnik while

Officer Zapata placed Zitnik’s arms behind his back and handcuffed his wrists. Zitnik

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cried, “Stop. Please. I didn’t do anything. I’m just trying to see [Combs].” Officer Zapata

restrained Zitnik to keep him from interfering with Combs’s medical care. Hospital staff

and Officer Zapata dragged Zitnik back to his hospital room while Zitnik continued to fight

and yell expletives, prompting hospital staff to chemically “subdue” Zitnik. Once subdued,

Officer Lopez removed Zitnik’s handcuffs so he could receive medical care.

¶6 Dr. Kelly Dewey treated both Zitnik and Combs in the ER. Dr. Dewey noted both

were agitated and resistant to hospital staff. Zitnik’s blood alcohol concentration (BAC)

when he was admitted to the hospital was 0.271.2 Dr. Dewey believed Zitnik had received

“a good hit to the nose” during the accident. He considered Combs’s aggressive and

irrational behavior might be related to her head trauma since agitated behavior can be

caused by bleeding and pressure in the head. Combs suffered injuries to her face and

mouth, including a broken nose, a broken facial bone, and a lost tooth.

¶7 At the conclusion of the evidence, the jury was instructed on the offense of resisting

arrest and the relevant required mental state:

A person commits the offense of resisting arrest if the person knowingly
prevents or attempts to prevent a peace officer from effecting an arrest by
using or threatening to use physical force or violence against the peace officer
or another, or using any other means that creates a risk of causing physical
injury to the peace officer or another.

To convict the Defendant of the offense of resisting arrest, the State must
prove the following elements:

1. That the Defendant prevented or attempted to prevent a peace officer
from effecting an arrest;

2
A blood sample taken pursuant to a search warrant the following morning showed Zitnik’s BAC
as 0.195.
4
 2. By using or threatening to use physical force or violence against the peace
officer or another, or using any other means that creates a risk of causing
physical injury to the peace officer or another; AND

3. That the Defendant acted knowingly. If you find from your consideration
of the evidence that all of these elements have been proved beyond a
reasonable doubt, then you should find the Defendant guilty.

If, on the other hand, you find from your consideration of the evidence
that any of these elements has not been proved beyond a reasonable doubt
then you should find the Defendant not guilty.

For purposes of Count II—Resisting Arrest and Count III—
Disorderly Conduct, a person acts knowingly when the person is aware of
his or her conduct.

Further, the court instructed the jury, “you must apply the evidence presented in the case

in order to reach a verdict [and that] [t]hese instructions are intended to cover all necessary

laws which are pertinent to the case.”

¶8 In closing, the State argued Zitnik “attempt[ed] to avoid arrest or restraint” by

bracing his legs and refusing to go back to his hospital room. Zitnik, in turn, argued his

conduct at the hospital was not criminal but arose out of concern for Combs. During

deliberations, the jury sent two written questions to the court: “What is the definition of

arrest? At what point was the defendant ‘under arrest’ originally?” The District Court

responded to the jury’s questions in writing: “All of the relevant law is set forth in the

instruction[s]. You will need to apply [the] instructions as given to you.” No record was

made of this exchange between the court and deliberating jury, except the written question

and the court’s written response subsequently placed by the clerk of court in the court file.

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The record does not reflect any consultation with counsel and the defendant, and the record

does not establish that counsel and Zitnik were present when the jury submitted their

questions and the court responded. The jury returned its verdict finding Zitnik guilty of all

three counts.

¶9 Two days after the trial concluded, the clerk of court docketed a piece of paper with

the handwritten note from the jury containing the two questions and the District Court’s

written response advising the jury to apply the instructions as given. The District Court

imposed a sentence of five years, with three years suspended, and a fine of $2,500 for the

negligent vehicular assault; a six month suspended concurrent term for resisting arrest; and

a $75 fine for disorderly conduct. The alleged presence violation pertains to a

communication involving only the charge of resisting arrest and does not involve Zitnik’s

convictions for negligent vehicular assault or disorderly conduct. Zitnik appeals.

STANDARD OF REVIEW

¶10 Whether a criminal defendant’s constitutional rights were violated, including a

criminal defendant’s right to be present at critical stages of trial, is a question of

constitutional law over which this Court exercises plenary review. State v. Sinz, 2021 MT

163, ¶ 20, 404 Mont. 498, 490 P.3d 97; Becker v. State, 2010 MT 93, ¶ 8, 356 Mont. 161,

232 P.3d 376.

¶11 This Court can exercise plain error review when a defendant failed to object to his

right to be present at the district court. State v. Robertson, 2014 MT 279, ¶ 39, 376 Mont.

471, 336 P.3d 367. We invoke the plain error doctrine on a case-by-case basis and only

6
when an appellant convinces us that failing to review the 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. Reim,

2014 MT 108, ¶ 38, 374 Mont. 487, 323 P.3d 880.

DISCUSSION

¶12 Before addressing the substance of the issue raised, we must determine our standard

of review. Zitnik did not make an objection to the court’s handling of the jury’s questions

because neither he, his counsel, or the State were aware that the jury, while deliberating,

presented two questions to the court which the court answered without consulting the

parties. The general rule is that an objection concerning a constitutional matter must be

raised before the trial court, and if the objection is not made, it will not be reviewed on

appeal. Reim, ¶ 38. This Court’s common law power of plain error review is an exception

to that rule. To exercise plain error review, the defendant must show (1) that the claimed

error implicates a fundamental right and (2) firmly convince this Court that failure to

review the error would result in a manifest miscarriage of justice, leave unsettled the

question of the fundamental fairness of the trial or proceedings, or compromise the integrity

of the judicial process. Reim, ¶ 38.

¶13 We have, on occasion, reached the merits of an alleged presence violation without

applying a strict plain error analysis. See State v. Tapson, 2001 MT 292, ¶ 14, 307 Mont.

428, 41 P.3d 305 (review was appropriate where Tapson’s counsel professed to waive

Tapson’s right to be present but there was nothing in the record indicating Tapson himself

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knew of his right to be present or waived that right); State v. Bird, 2002 MT 2, ¶¶ 37-38,

308 Mont. 75, 43 P.3d 266 (we rejected an argument that a defendant had waived his

presence claim during voir dire because the record did not establish that he was ever

informed of his right to be present and that he waived that right); State v. Kennedy, 2004

MT 53, ¶¶ 28-30, 320 Mont. 161, 85 P.3d 1279 (review was appropriate where the

defendant was never informed of his right to be present during an in-chamber conversation

the court had with a juror); State v. Wilson, 2013 MT 70, ¶ 12, 369 Mont. 282, 297 P.3d

1208 (this Court did not consider whether Wilson had preserved his presence claim).

Nonetheless, our decision to reach the merits of an alleged presence violation on occasion

should not be considered as excepting all presence violations from the requirement that

they first be raised at trial. Here, however, the standards for exercising plain error review

are easily satisfied. First, Zitnik’s fundamental right to be present was implicated when a

substantive question of law was communicated between the court and deliberating jury in

his absence. Second, the lack of any record indicating the court consulted with the parties

and Zitnik prior to responding to the jury’s questions convinces us that failure to review

the alleged presence violation would leave unsettled the question of the fundamental

fairness of the proceedings, compromise the integrity of the judicial process, and result in

a manifest miscarriage of justice. Accordingly, we will exercise plain error review to

consider Zitnik’s alleged presence violation.

¶14 The Sixth Amendment to the United States Constitution guarantees a criminal

defendant the right to be present at all critical stages of the proceedings against him. U.S.

8
Const. amend. VI; Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 1058 (1970). The

Due Process Clause of the Fourteenth Amendment also protects a defendant’s right to be

present. United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 1484 (1985); State

v. Matt, 2008 MT 444, ¶ 16, 347 Mont. 530, 199 P.3d 244 (overruled on other grounds by

State v. Charlie, 2010 MT 195, 357 Mont. 355, 239 P.3d 934). “A defendant has a due

process right to be present in his own person whenever his presence has a relation,

reasonably substantial, to the fullness of his opportunity to defend against the charge.”

Matt, ¶ 14 (quoting Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 2667 (1987)).

By being physically present, a defendant can hear and see the proceedings and can

participate in the presentation and preservation of his rights. Matt, ¶ 16. The right to be

present during all proceedings serves to safeguard the public interest in a fair and orderly

judicial system. Tapson, ¶ 14.

¶15 To determine whether the right to be present has been violated, we analyze: (1)

whether the alleged violation occurred at a “critical stage” of the proceedings; (2) whether

the defendant had validly waived the right to be present; and (3) whether any violation of

the right to be present was harmless error. Reim, ¶ 36 (citing Matt, ¶ 18; Wilson, ¶ 12).

¶16 First, we address whether Zitnik’s alleged violation of his right to be present

occurred at a “critical stage” of the proceedings. A critical stage is “any step of the

proceeding where there is a potential for substantial prejudice to the defendant.” Ranta v.

State, 1998 MT 95, ¶ 17, 288 Mont. 391, 958 P.2d 670. The State, relying on Sinz, argues

we need not definitively determine if an event constituted a critical stage when the

9
defendant was not prejudiced by his absence from that event. The State maintains that the

court’s interaction with the jury was memorialized in the note and that Zitnik was not

prejudiced because the jury was merely instructed to follow the instructions previously

given. However, the questions indicate the jury was considering when Zitnik was first

placed under arrest and what constituted an arrest—both of which were integral to the

particular facts of the case, the elements of the resisting arrest charge, and to Zitnik’s

defense. Had Zitnik known of the jury’s questions he may have advocated for a different

response from the court. We therefore must consider the potential for prejudice arising

from the absence of both counsel and Zitnik during a point at trial where the jury made a

substantive inquiry about the law pertaining to the charge of resisting arrest in the context

of the facts of this case. Accordingly, we reject the State’s argument that, because Zitnik

was not substantially prejudiced, it is unnecessary to determine whether the event

constituted a critical stage of the proceedings.

¶17 Pursuant to § 46-16-503(2), MCA, Zitnik has both a constitutional and statutory

right to be present when the District Court communicated with the jury. Montana has

codified the way courts address inquiries from a deliberating jury:

After the jury has retired for deliberation, if there is any disagreement among
the jurors as to the testimony or if the jurors desire to be informed on any
point of law arising in the cause, they shall notify the officer appointed to
keep them together, who shall then notify the court. The information
requested may be given, in the discretion of the court, after consultation with
the parties.

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Section 46-16-503(2), MCA, (2019) (emphasis added). Based on the plain and

unambiguous language of the statute, the court was statutorily required to first consult with

Zitnik before responding to the jury’s questions.

¶18 Our precedent explains the principles underlying § 46-16-503(2), MCA. In Tapson,

the judge brought substitute verdict forms into the jury room at the suggestion of the State

and without opposition from defense counsel. Tapson, ¶ 11. Neither counsel nor the

defendant were present. Tapson, ¶ 11. The judge returned to the courtroom eleven minutes

later and never made a record of the meeting. Tapson, ¶ 11. On appeal, we held the judge’s

intrusion into the jury room implicated the fundamental right to personally appear at all

criminal proceedings. Tapson, ¶ 27. We determined it was reversible error for the judge

to have entered the jury room while the jury was present, without the presence of the

defendant or counsel, and without an on-the-record waiver by the defendant of his rights

to be present at a critical stage of the trial. Tapson, ¶ 39. “No communication, whatever,

should take place between the judge and the jury after the cause has been submitted to

them, unless in open court with all the parties and their attorneys present.” Tapson, ¶ 17

(citation omitted).

¶19 In Matt, the trial judge, prosecutor, and defense counsel met in chambers to discuss

evidentiary issues. Matt, ¶ 6. Defense counsel indicated to the judge that she did not mind

if the defendant was absent during the meeting because the defendant would not understand

the proceedings. Matt, ¶ 6. On review following the defendant’s conviction, we held that

the in-chambers conference was a critical stage of the trial because the judge considered

11
and ruled upon evidentiary issues raised by the defense, which implicated the defendant’s

rights, and the defendant did not waive his right to be present. Matt, ¶ 16. We stated, “[a]

defendant has a due process right to be present in his own person whenever his presence

has a relation, reasonably substantial, to the fullness of his opportunity to defend against

the charge.” Matt, ¶ 16 (quoting Stincer, 482 U.S. at 745, 107 S. Ct. at 2667).

¶20 In Charlie, defense counsel and the State conferred with the trial judge by telephone

without Charlie (who was incarcerated at the time and not immediately available) and

discussed a newly discovered videotape in relation to his upcoming trial. Charlie, ¶ 7. A

week later, the judge informed Charlie what had transpired at the telephonic conference

and the reason for delaying his trial to enhance the video. Charlie, ¶ 7. On appeal, Charlie

argued he was entitled to be present at the telephonic conference and that his exclusion

from the conference so contaminated the framework of the trial that he was denied his right

to a fundamentally fair trial. This Court explained, “the question presented is whether there

is a ‘reasonable possibility’ that Charlie’s absence from the telephonic conference caused

him prejudice.” Charlie, ¶ 41. We held, because the parties present at the telephonic

conference discussed the impact of newly discovered evidence, Charlie’s presence at that

conference “had a reasonably substantial relation to his right to defend against the charges”

and concluded this “was a critical stage of the criminal proceedings against him.” Charlie,

¶ 41.

¶21 In State v. Northcutt, 2015 MT 267, 381 Mont. 81, 358 P.3d 179, the presiding judge

approached the jury room and inquired whether the jury would reach a verdict that night.

12
Northcutt, ¶ 3. Neither Northcutt, his counsel, the court reporter, nor prosecutor were

present when the court made this communication to the jury. Northcutt, ¶ 3. Relying on

Tapson and Matt, we concluded “[a] communication between a judge and a deliberating

jury . . . holds the potential to substantially prejudice a defendant,” thereby constituting a

critical stage of the proceedings. Northcutt, ¶¶ 16-17. “Introducing an interaction with the

judge into [] sensitive stage[s] of the proceedings is pregnant with possibilities for error.”

Northcutt, ¶ 16 (citing Tapson, ¶ 18) (quoting United States v. U.S. Gypsum Co., 438 U.S.

422, 460, 98 S. Ct. 2864, 2885). Moreover, we reasoned, “a defendant’s right to be present

may keep judges from engaging in such highly discouraged interactions in the first place,

safeguarding the public’s interest in a fair and orderly judicial system.” Northcutt, ¶ 16

(quoting Matt, ¶ 16) (internal quotations omitted). Since Northcutt was not present or

aware of the communication between the trial judge and jury that occurred during a critical

stage of the trial, we held his right to presence was violated. Northcutt, ¶ 17.

¶22 Our precedent is consistent with federal precedent requiring a defendant’s presence

when a jury retires for deliberation and presents questions to the court. As early as 1919,

the United States Supreme Court recognized, “[w]here a jury has retired to consider its

verdict, and supplementary instructions are required, either because asked for by the jury

or for other reasons, they ought to be given either in the presence of counsel or after notice

and an opportunity to be present; and written instructions ought not to be sent to the jury

without notice to counsel and an opportunity to object.” Fillippon v. Albion Vein Slate Co.,

250 U.S. 76, 80–81, 39 S. Ct. 435, 436 (1919). Notifying the parties after the court

13
provided supplementary instructions is wrong as a matter of law. Fillippon, 250 U.S. at

82, 39 S. Ct. at 437. The orderly conduct of a jury trial requires parties to attend all

proceedings from the time the jury is impaneled until it is discharged after rendering a

verdict, so that the right to be heard is protected. Fillippon, 250 U.S. at 81, 39 S. Ct. at

436.

¶23 In Rogers v. United States, 422 U.S. 35, 95 S. Ct. 2091 (1975), the deliberating jury

sent a note to the court asking whether it could accept a guilty verdict that also

recommended extreme mercy. Rogers, 422 U.S. at 38, 95 S. Ct. at 2094. Without notifying

the defendant, the court responded by written message. Rogers, 422 U.S. at 36, 95 S. Ct.

at 2093. As here, the defendant’s counsel did not know about the communication until

after the Supreme Court granted certiorari. Rogers, 422 U.S. at 41, 95 S. Ct. at 2095. The

Court concluded the jury’s communication was “tantamount to a request for further

instructions” and ruled that the communication made in the defendant’s absence violated a

defendant’s right to be present at every critical stage of the trial. Rogers, 422 U.S. at 39,

41, 95 S. Ct. at 2094-95. The Court explained “the jury’s message should have been

answered in open court and [] petitioner’s counsel should have been given an opportunity

to be heard before the trial judge responded.” Rogers, 422 U.S. at 39, 95 S. Ct. at 2094.

¶24 Finally, in Gypsum, which has been previously relied upon by this Court (Northcutt,

¶16; Tapson, ¶¶ 18-20) counsel agreed to allow the judge to privately discuss with the jury

whether lengthy deliberations had impacted jurors’ physical condition. Gypsum, 438 U.S.

at 431-32, 98 S. Ct. at 2870 (1978). The agreement included assurances that no instructions

14
on the law would be delivered unless the parties were present in open court. Gypsum, 438

U.S. at 431-32, 98 S. Ct. at 2870. Nonetheless, the judge and foreman’s discussions

extended beyond the physical condition of the jurors. Gypsum, 438 U.S. at 432-33, 98 S.

Ct. at 2871. The court summarized the conversation for the parties on the record. Gypsum,

438 U.S. at 432, 98 S. Ct. at 2871. Defense counsel requested to see a transcript of the

exchange and asked for a mistrial. Gypsum, 438 U.S. at 433, 98 S. Ct. at 2872. The court

denied both requests and the jury subsequently returned a guilty verdict. Gypsum, 438 U.S.

at 433, 98 S. Ct. at 2871. The Court found the meeting between the judge and foreman to

be “pregnant with possibilities for error” which warranted reversal because it was

impossible to gauge how the meeting impacted the jury’s verdict. Gypsum, 438 U.S. at

460-62, 98 S. Ct. at 2885-86.

¶25 We conclude Zitnik’s absence when the court addressed the jury’s questions

occurred at a critical stage of his trial because there was “a potential for substantial

prejudice.” Matt, ¶ 17. The jury sought the legal definition of “arrest” and wanted to know

when Zitnik was initially “under arrest.” Had Zitnik been present, he could have provided

an alternative definition than what the court gave, such as the statutory definition of “arrest”

or other language for “arrest” derived from case law on which the jury had not previously

been instructed. See § 46-1-202(3) (“arrest” means taking a person into custody in the

manner authorized by law); State v. Ellington, 2006 MT 219, ¶¶ 12, 14, 333 Mont. 411,

143 P.3d 119 (arrest involves: “(1) the authority to arrest, (2) the assertion of that authority

to effect an arrest, and (3) the restraint of the person arrested”); State v. Van Dort, 2003

15
MT 104, ¶ 14, 315 Mont. 303, 68 P.3d 728 (“arrest has been accorded a broad definition,

which applies if ‘a reasonable person, innocent of any crime, would have felt free to walk

away under the circumstances’”). Therefore, the District Court erred when it did not give

Zitnik an opportunity—because Zitnik was not even aware of the jury’s question—to argue

that a response more tailored to the facts should be given; from objecting to the response

that was given and making a record; from proposing an argument in support of a different

response; or from making further motions at a critical stage of the proceedings against him.

These were not questions about what was for dinner; rather, they were substantive

questions about the law pertaining to the particular facts of this case. Since Zitnik had no

opportunity to address the jury’s substantive questions about the definition of “arrest” and

when it occurred, the error is reversible unless Zitnik waived his right to be present or the

error was harmless.

¶26 We therefore turn to the second consideration of an alleged presence violation:

whether Zitnik waived his right to be present. Waiver is defined as the voluntary

abandonment of a known right. Tapson, ¶ 24. The fundamental right to appear and defend

may only be waived by failing to appear at trial, or through an informed, intelligent, and

recorded waiver. State v. Mann, 2006 MT 160, ¶ 12, 332 Mont. 476, 139 P.3d 159. Any

waiver of one’s constitutional rights must be made specifically, voluntarily, and

knowingly. Bird, ¶ 35. We will not presume a defendant has waived fundamental rights.

Bird, ¶ 35. Only the defendant retains the ability to waive their right to be present. Matt,

¶ 26. If a defendant chooses to waive his right to be present at a critical stage of the trial,

16
the court must obtain an on-the-record personal waiver by the defendant acknowledging

the defendant voluntarily, intelligently, and knowingly waives that right. Bird, ¶ 38.

¶27 Here, Zitnik was unaware the jury had questions and did not know he had the right

to be consulted prior to the court responding. Zitnik first learned about the jury’s questions

following his conviction when his appeal was being prepared. Based on this record, or

lack thereof, it is clear Zitnik never waived his right to be present.

¶28 Finally, we consider whether the prejudice against Zitnik resulted in harmless error.

We have previously held that the absence of a defendant and counsel when a deliberating

jury makes an inquiry of the court does not constitute structural error but should be

considered under the harmless error analysis. Charlie, ¶ 41. Under harmless error analysis,

“it shall be incumbent on the State to demonstrate that there is no reasonable possibility

that the violation prejudiced the defendant; in other words, the State will carry the burden

of persuading the Court, based upon the record before us and given the interests the right

of presence was designed to protect, that the violation was harmless.” Charlie, ¶ 45

(emphasis in original).

¶29 The State argues we should rely on Sinz where we concluded that because there was

a record of the court’s interaction with the jury, as both the jury’s inquiry and the court’s

response were in writing, we were able to “determine whether Sinz was prejudiced” by the

trial court’s actions. Sinz, ¶ 40. The State argues that because the District Court

communicated with the jury through written notes contained in the record, there is no

reasonable possibility that the District Court’s actions prejudiced Zitnik. However, while

17
we may know the jury’s questions and the court’s response, this ignores the substantial

prejudice that inured from Zitnik’s absence. Had Zitnik been present, he could have

proposed an instruction on the statutory definition of arrest, § 46-1-202(3), MCA, or a

definition contained in our precedent (see Ellington, ¶¶ 12, 14, Van Dort, ¶ 14); or

proposed a response more tailored to the jury’s substantive question about the law and facts

of these proceedings. He was foreclosed from objecting to the response that was given and

making a record, and from proposing an argument in support of a different response; and

he was foreclosed from making any further motions he deemed appropriate at a critical

stage of the proceedings against him. Thus, the facts in Sinz do not inform our inquiry

here.

¶30 The State also relies on State v.Godfrey, 2009 MT 60, 349 Mont. 335, 203 P.3d 834.

In Godfrey, the court met with the parties six times to answer ten jury questions and

answered one of the questions without consulting the parties. Godfrey, ¶ 27. We noted,

concluding that Godfrey was not prejudiced, the court’s actions had “no bearing upon the

evidence” and were “consistent with the court’s original charge to the jury.” Godfrey, ¶¶

35-36. The State contends we should apply the same reasoning because the District Court’s

written response directed the jury to apply the instructions as already given and did not

give any incorrect statements of law. We decline the State’s invitation. Here, while the

District Court’s response directed the jury to the instructions originally given, it did not

meaningfully address the jury’s legitimate and substantive questions of law relating to the

facts of this case. Zitnik had to be under “arrest” to be convicted of resisting arrest. Zitnik

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and the parties should have been allowed to consult with the court, make recommendations

and requests, and make a record of their objections. It may have been that ultimately the

court would have delivered the same response, but the right of presence contemplates a

defendant has the opportunity to be involved in his defense. To foreclose meaningful

mechanisms imbedded in established procedures of trial designed to ensure the trial’s

fairness, which are protected and enhanced through advocacy, was error. We conclude the

error was not harmless.

CONCLUSION

¶31 When the District Court responded to the questions from the deliberating jury

outside Zitnik’s presence, it was during a critical stage of the proceedings and constituted

reversible error. Zitnik did not waive his right to be present and the District Court’s error

was not harmless because the quality of the questions involved substantive areas of the law

that could impact the jury’s decision to convict. Zitnik had no opportunity to object,

propose alternative responses, or otherwise make a record for appeal. Accordingly, the

error was not harmless.

¶32 As the communication was confined to Zitnik’s charge of resisting arrest, the

reversible error relates only to his conviction for that offense. Accordingly, Zitnik’s

conviction for resisting arrest is reversed.

/S/ LAURIE McKINNON

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We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR

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