12/27/2016
DA 15-0428
Case Number: DA 15-0428
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 346
STATE OF MONTANA,
Plaintiff and Appellee,
v.
WILLIAM JAMES LAWRENCE,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. ADC 14-147
Honorable Mike Menahan, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Chief Appellate Defender, Alexander H. Pyle, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Sarah Clerget, Assistant
Attorney General, Helena, Montana
Leo Gallagher, Lewis and Clark County Attorney, Lisa Leckie, Deputy
County Attorney, Helena, Montana
Submitted on Briefs: October 26, 2016
Decided: December 27, 2016
Filed:
__________________________________________
Clerk
Justice Patricia Cotter delivered the Opinion of the Court.
¶1 William Lawrence appeals from his conviction for felony theft following a jury
trial in the First Judicial District Court, Lewis and Clark County. Lawrence raises
allegations of prosecutorial misconduct, ineffective assistance of counsel, and an abuse of
discretion by the District Court. We reverse and remand for a new trial.
ISSUE
¶2 Lawrence raises four issues on appeal. We restate the dispositive issue as follows:
Whether the prosecutor’s comments during closing arguments require reversal
under the plain error doctrine?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On April 8, 2014, Lawrence and his brother, Steven Dubois, arrived at Wayne
Miller Coins on Last Chance Gulch in Helena, Montana. Lawrence and Dubois entered
the shop after being buzzed in through the back door. Lawrence was in possession of
coins he wished to have appraised, something he had done previously at Miller Coins.
After Wayne Miller, the owner of the shop, informed him that his coins were valueless,
Lawrence perused the store while questioning a store employee, Emily Gleason, about
some of the items. Meanwhile, Dubois made his way to the back door, apparently intent
on leaving the store. While following his brother out of the shop, Lawrence stopped to
admire artwork adorning the walls of the hallway. As Lawrence continued to look at the
artwork, Dubois grabbed a shipping package containing roughly $10,500 in silver,
one-ounce coins and exited the store. Lawrence then started toward the back door.
Gleason saw Dubois take the package and hurried to the back of the store to confront
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Lawrence. After a brief exchange, Lawrence left and got in a car with Dubois, who
drove away. Lawrence was apprehended the next day in possession of a backpack
containing nearly half of the stolen silver coins.
¶4 Lawrence was charged with theft under § 45-6-301(1)(a), MCA. A two-day trial
was held in the First Judicial District Court, Lewis and Clark County. During closing
argument, the prosecutor told the jury, “The presumption of innocence that you came into
this trial with no longer exists at this point.” Defense counsel did not object.
Subsequently, the jury found Lawrence guilty of felony theft and he was sentenced to ten
years in prison.
¶5 On appeal, Lawrence raises a myriad of arguments, alleging that the prosecutor
committed plain error requiring reversal by stripping Lawrence of the presumption of
innocence as well as misstating the law of the charged offense. Further, Lawrence argues
that the District Court abused its discretion by not granting a mistrial after the State
violated an order in limine, and that defense counsel provided ineffective assistance by
failing to object to prosecutorial misconduct, an erroneous jury instruction, and hearsay
testimony by a witness for the State.
STANDARD OF REVIEW
¶6 In general, this Court does not address issues of “‘prosecutorial misconduct
pertaining to a prosecutor’s statements not objected to at trial.’” State v. Aker, 2013 MT
253, ¶ 21, 371 Mont. 491, 310 P.3d 506 (quoting State v. Longfellow, 2008 MT 343, ¶ 24,
346 Mont. 286, 194 P.3d 694). However, we may exercise our discretion and review
such issues under the plain error doctrine. Aker, ¶ 21 (citing State v. Lacey, 2012 MT 52,
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¶ 14, 364 Mont. 291, 272 P.3d 1288); State v. Hayden, 2008 MT 274, ¶ 17, 345 Mont.
252, 190 P.3d 1091. The plain error doctrine is to be used sparingly, and only on a
case-by-case basis. Hayden, ¶ 17. Once the doctrine is invoked, this Court’s review is
grounded in our “inherent duty to interpret the constitution and to protect individual
rights set forth in the constitution.” State v. Finley, 276 Mont. 126, 134, 915 P.2d 208,
213 (1996) overruled on other grounds State v. Gallagher, 2001 MT 39, ¶ 21, 304 Mont.
215, 19 P.3d 817.
DISCUSSION
¶7 We do not reach the issues regarding the order in limine, the alleged hearsay, or
the jury instruction, nor do we reach the question of whether defense counsel’s failure to
object to the prosecutor’s statement constitutes ineffective assistance of counsel.
Pertinent here, Lawrence argues the prosecutor’s statement regarding the presumption of
innocence constitutes plain error requiring reversal and remand for a new trial.
¶8 Whether the prosecutor’s comments during closing arguments require reversal
under the plain error doctrine?
¶9 The purpose of the plain error doctrine is to correct an error not objected to at trial
that affects the “fairness, integrity, and public reputation of judicial proceedings.” Finley,
276 Mont. at 134, 915 P.2d at 213. The plain error doctrine may be used “‘in situations
that implicate a defendant’s fundamental constitutional rights,’” and where “‘failing to
review the alleged error may result in a manifest miscarriage of justice, leave unsettled
the question of the fundamental fairness of the proceedings, or compromise the integrity
of the judicial process.’” Aker, ¶ 21 (quoting State v. McDonald, 2013 MT 97, ¶ 8, 369
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Mont. 483, 299 P.3d 799). Therefore, we first determine whether the defendant’s
fundamental constitutional rights have been implicated.
¶10 The underlying question here is a simple one: whether a prosecutor stating during
closing argument that the presumption of innocence has been removed from the
defendant implicates a defendant’s fundamental rights. We cannot overstate the
importance of the foundational principle that is the presumption of innocence. It is a
bedrock, axiomatic, and elementary tenet of our criminal justice system. State v.
Williams, 184 Mont. 111, 112, 601 P.2d 1194, 1195 (1979). Further, enforcement of this
principle, meaning its application to each and every criminal defendant, “lies at the
foundation of the administration of our criminal law.” Coffin v. United States, 156 U.S.
432, 453, 15 S. Ct. 394, 403 (1895). Therefore, we determine that the comment by the
prosecutor stating the presumption of innocence no longer applied to the defendant
implicated the defendant’s fundamental rights. We next determine whether a failure to
review this alleged error might result in a “‘manifest miscarriage of justice, leave
unsettled the question of the fundamental fairness of the proceedings, or compromise the
integrity of the judicial process.’” Aker, ¶ 21 (quoting McDonald, ¶ 8).
¶11 This Court has, on numerous occasions, refused to invoke the plain error doctrine
because the alleged error did not result in a miscarriage of justice, raise a question as to
the fundamental fairness of the proceedings, or compromise the integrity of the judicial
process. See, e.g., McDonald, ¶ 17 (concluding that the challenged comment in closing
argument did not raise the specter of prosecutorial misconduct necessitating the exercise
of plain error review to protect the fundamental fairness of the proceeding); State v.
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Thorp, 2010 MT 92, ¶¶ 25-30, 356 Mont. 150, 231 P.3d 1096 (determining that a
cautionary instruction was sufficient under the circumstances to remedy any alleged
infringement on the defendant’s constitutional right to a fair trial). However, we have
also previously determined that prosecutorial misconduct may warrant relief under the
plain error doctrine.1
¶12 This Court has not previously been faced with comments such as those at issue in
this case. Due to the gravity of the presumption of innocence within our criminal justice
system, we determine that the challenged comment, “[t]he presumption of innocence that
you came into this trial with no longer exists at this point,” leaves unsettled the question
of whether or not the proceedings were fundamentally fair and compromises the integrity
of the judicial process. Therefore, as we find that the circumstances of the instant case
warrant application of the plain error doctrine, we proceed to address the merits of the
alleged error.
¶13 “Both the Sixth Amendment to the United States Constitution and Article II,
Section 24 of the Montana Constitution guarantee criminal defendants ‘the right to a fair
trial by a jury.’” Aker, ¶ 24 (quoting Hayden, ¶ 27). Prosecutorial misconduct “may be
grounds for reversing a conviction and granting a new trial if the conduct deprives the
1
In State v. Hayden, we reversed and remanded for a new trial based on the prosecutor’s
comments. Hayden, ¶¶ 30-33. In Hayden, the prosecutor’s challenged statements included, in
part, offering his own opinion as to witness testimony during closing argument, stating that the
jury could rely on the detective’s testimony, and improperly testifying to the efficacy of the
search during closing argument. Hayden, ¶ 32. In summary, we determined that the
prosecutor’s comments unfairly added “the probative force of his own personal, professional,
and official influence to the testimony of the witnesses,” and that the prosecutor’s conduct
invaded the role of the jury. Hayden, ¶ 33. In light of these two concerns, we determined that
the record left “unsettled the question of the fundamental fairness of the proceedings.” Hayden,
¶ 33.
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defendant of a fair and impartial trial.” Hayden, ¶ 27. It is well established that we
“‘consider alleged improper statements during closing argument in the context of the
entire argument.’” Aker, ¶ 24 (quoting State v. Makarchuk, 2009 MT 82, ¶ 24, 349
Mont. 507, 204 P.3d 1213). We “do not presume prejudice from the alleged
prosecutorial misconduct; rather, the ‘defendant must show that the argument violated his
substantial rights.’” Aker, ¶ 24 (quoting McDonald, ¶ 10).
¶14 Therefore, we must determine whether the challenged comment deprived the
defendant of a fair and impartial trial. In making this determination, we consider the
challenged comment in the context of the trial and the closing argument as a whole.
Further, we consider whether the challenged comment violated the defendant’s
substantial rights.
¶15 As stated above, there are few principles in our criminal justice system as
fundamental as the presumption of innocence. The principle is so foundational that we
have recognized “it cannot be evidence, nor can it be introduced in the case, for it is in
the case from its inception.” State v. De Lea, 36 Mont. 531, 539, 93 P. 814, 817 (1908).
The presumption of innocence is the “safeguard which the law casts around all persons
accused of a crime, and the defendant cannot be reached by a verdict of guilty until this
safeguard is entirely removed.” De Lea, 36 Mont. at 539, 93 P. at 817. Further, and most
importantly in the instant case, the presumption endures throughout the deliberations of
the jury and may only be overcome “by evidence which satisfies the minds of the jurors
beyond a reasonable doubt.” De Lea, 36 Mont. at 539, 93 P. at 817. The presumption
remains attached to the defendant as he or she appears in the minds of the jurors after the
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jury has heard the entirety of the evidence and begun its deliberation. Indeed, it is
improper to say that the presumption may be removed from a defendant at any time;
rather, the presumption is overcome upon his or her conviction in a court of law.
¶16 In our criminal justice system, the presumption has been overcome when the State
has presented evidence against a criminal defendant that satisfies a jury, beyond a
reasonable doubt, that the defendant is guilty of the crime charged. De Lea, 36 Mont. at
540, 93 P. at 817-18. To that end, we instruct the jurors that they are to refrain from
making their decision as to the guilt or innocence of a defendant until they have
considered whether the State has overcome the presumption of innocence beyond a
reasonable doubt. The prosecutor’s statement made prior to deliberation of the jury that
the presumption of innocence no longer attached violated this bedrock principle of law.
¶17 It is reasonable and required that both the State and defense counsel jealously
guard this principle throughout the entirety of a criminal trial. It is clear from the record
that defense counsel failed to object to the challenged statement, yet that does not relieve
a prosecutor of his or her duty. The United States Supreme Court has stated that “it is as
much [the Prosecutor’s] duty to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to bring about a just one.”
Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935). We agree. By
stating that the presumption of innocence no longer applied to the defendant, the
prosecutor improperly abdicated this duty and deprived the defendant of his fundamental
right to a fair and impartial trial by jury as guaranteed by Article II, Section 24, of the
Montana Constitution, and the Sixth Amendment to the United States Constitution.
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¶18 Here, it was Dubois, not Lawrence, who physically removed the coins from the
store. Lawrence testified on his own behalf, telling the jurors that he did not want to keep
the coins his brother had given him and intended to give them back to the coin shop,
hopefully without exposing himself to prosecution. However, he was arrested before he
could do so. While the jury was free to disbelieve this testimony, the fact remains that
under these circumstances, the presumption of innocence was critical to Lawrence’s
defense. When the prosecutor told the jury the presumption of innocence no longer
existed and his lawyer raised no objection or argument in opposition to that assertion, the
jury could well have concluded that the prosecutor was correct.
¶19 Viewing the challenged comment in the context of the surrounding statement
provides support for our conclusion that the prosecutor engaged in misconduct requiring
relief. In full, the prosecutor stated, “The presumption of innocence that you came into
this trial with no longer exists at this point. The instruction doesn’t say that you have to
believe what the defendant told you. You can use your common sense in determining
what happened in this case.” We infer that the instruction to which the prosecutor refers
is Instruction No. 4 which states, in relevant part:
The Defendant is presumed to be innocent of the charge against him. This
presumption remains with him throughout every stage of the trial and
during your deliberations on the verdict. It is not overcome unless from all
the evidence in the case you are convinced beyond a reasonable doubt that
the Defendant is guilty. The Defendant is not required to prove his
innocence or present any evidence.
This preliminary instruction was given by the district court at the commencement of the
trial, but was not read again at the conclusion of the evidence.
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¶20 The prosecutor is the representative of the State at trial and must be held to a
standard commensurate with his or her position. Noting this, the United States Supreme
Court has rightly observed that a prosecutor’s improper suggestions and assertions to a
jury “are apt to carry much weight against the accused when they should properly carry
none.” Berger, 295 U.S. at 88, 55 S. Ct. at 633. We conclude that these statements
could cause a reasonable juror to question the language of the preliminary jury
instruction and, therefore, have the potential effect of removing the presumption of
innocence from the defendant.
¶21 Our conclusion here finds support in a Tenth Circuit case in which a similar
representation was made by a prosecutor during closing arguments to a jury. In
Mahorney v. Wallman, 917 F.2d 469 (10th Cir. 1990), the Court of Appeals held that a
prosecutor’s argument that the presumption of innocence had been removed from the
defendant violated the defendant’s constitutional rights and constituted reversible error.
Mahorney, 917 F.2d at 473-74. We conclude that the same result must be reached here.
¶22 It is our “inherent to duty . . . to protect individual rights set forth in the
constitution.” Finley, 276 Mont. at 134, 915 P.2d at 213. We therefore decline to accept
the State’s contention and the Dissent’s assertion that the prosecutor’s statements were
appropriate comments on the evidence undeserving of plain error review. Dissent, ¶ 37.
Rather, we conclude that the challenged comments made by the prosecutor constitute
prosecutorial misconduct from which the defendant is entitled to relief.
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CONCLUSION
¶23 We determine that the prosecutor’s comments require reversal of Lawrence’s
conviction. Because we grant relief based on prosecutorial misconduct during closing
arguments, we do not reach the merits of the additional issues raised by Lawrence on
appeal. We reverse and remand for a new trial.
/S/ PATRICIA COTTER
We Concur:
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
Justice Beth Baker, concurring.
¶24 I agree with the Court’s determination to review for plain error the prosecutor’s
statement regarding the presumption of innocence because that statement implicated
Lawrence’s fundamental rights. The statement was improper and objectionable. But I
share the Dissent’s view that, when reviewed in context, the prosecutor’s closing
argument does not justify reversing the conviction.
¶25 The Court’s reliance on Mahorney is misplaced. Mahorney is distinguishable
because in that case “defense counsel vigorously objected both during voir dire and
closing argument to the prosecutor’s misconduct and was immediately and categorically
overruled in the presence of the jury.” Mahorney, 917 F.2d at 473. In reversing for a
new trial, the Tenth Circuit concluded that the trial court placed an “official imprimatur
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. . . upon the prosecution’s misstatements of law [which] obviously amplified their
potential prejudicial effect on the jury.” Mahorney, 917 F.2d at 473. “Moreover,” the
Tenth Circuit went on, “the trial court did not thereafter attempt to cure or minimize the
problem through admonishment or special instruction of the jury.” Mahorney, 917 F.2d
at 473. Thus, the Tenth Circuit concluded, “the factors that have permitted some courts
to overlook similar prosecutorial misrepresentations are not present in this case.”
Mahorney, 917 F.2d at 474.
¶26 The Court also fails to consider the State’s “alleged improper statements during
closing argument in the context of the entire argument.” State v. Makarchuk, 2009 MT
82, ¶ 24, 349 Mont. 507, 204 P.3d 1213. As the Dissent observes, the prosecutor focused
on the evidence presented at trial. In her rebuttal argument the prosecutor stated:
The State of Montana has the burden of proving the guilt of the defendant
beyond a reasonable doubt. And the State accepts that burden; I think it’s
fair. It says: Proof beyond a reasonable doubt is proof of such convincing
character that a reasonable person would rely and act upon that in the most
important of his or her own affairs.
She then proceeded to explain reasonable doubt and to discuss the evidence and
inferences the jury properly should draw from it in order to reach a guilty verdict. I
would not reverse the conviction on the basis of the prosecutor’s single “presumption of
innocence” comment.
¶27 Despite my disagreement with the Court’s analysis, I join the decision to reverse
Lawrence’s conviction because I am convinced that this is the rare case in which the
cumulative effect of the errors he has shown on appeal prejudiced his right to a fair trial.
12
¶28 Lawrence asserts the following additional errors: the prosecutor’s misstatement of
the law of the charged offense; defense counsel’s failure to object to the prosecutor’s
closing argument; defense counsel’s failure to object to an erroneous mens rea
instruction; and defense counsel’s failure to object to hearsay testimony. I would
conclude that, when considered as a whole, these errors prejudiced Lawrence’s right to a
fair trial.1
¶29 The cumulative error doctrine “refers to a number of errors that, taken together,
prejudice a defendant’s right to a fair trial.” State v. Novak, 2005 MT 294, ¶ 35, 329
Mont. 309, 124 P.3d 182; accord State v. Giddings, 2009 MT 61, ¶ 100, 349 Mont. 347,
208 P.3d 363; State v. Bar-Jonah, 2004 MT 344, ¶ 108, 324 Mont. 278, 102 P.3d 1229.
Under the doctrine, “[r]eversal is required . . . once such accumulated errors are identified
as having prejudiced a defendant’s right to a fair trial.” Novak, ¶ 35. It is the defendant’s
duty to prove the existence of prejudice. Novak, ¶ 35.
¶30 In evaluating a cumulative error argument based on several enumerated errors,
courts
must consider each such claim against the background of the case as a
whole, paying particular weight to factors such as the nature and number of
the errors committed; their interrelationship, if any, and combined effect;
how the district court dealt with the errors as they arose . . . ; and the
strength of the government’s case. The run of the trial may also be
important; a handful of miscues, in combination, may often pack a greater
punch in a short trial than in a much longer trial.
1
I do not include in this list Lawrence’s argument regarding a witness’s passing reference to
“booking photos.”
13
United States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir. 1993) (internal citations
omitted).
¶31 Here, over the course of a two-day trial, there were several interrelated errors that
had the combined effect of prejudicing Lawrence’s right to a fair trial. During closing
argument, the prosecutor implied that because Lawrence had not returned the coins
“immediately,” he had committed theft under § 45-6-301(1)(a), MCA. Though made in
response to the defense closing argument, this misstated the law, which requires a
purpose to deprive the owner of his property. The error, which otherwise could have
been a minor one, was compounded by the District Court’s instructions as to the mens rea
for theft. The court gave a result-based “knowingly” instruction and a conduct-based
“purposely” instruction. This was not a correct statement of the law. Theft is a
result-based crime because it requires a “purpose to deprive” the owner of property. See
State v. Shively, 2009 MT 252, ¶¶ 17-18, 351 Mont. 513, 216 P.3d 732 (concluding that
the State is not required to prove that a defendant knows the property is stolen to be
convicted under § 45-6-301, MCA, because the statute requires a knowing exertion of
control over the property with the purpose to deprive the owner). Even though the court
informed the jury of that element, it didn’t correctly define for the jury what “purpose”
meant in proving the elements of theft.
¶32 During the trial Officer Zapata testified that another officer advised him that
Lawrence “was possibly in Stewart Homes trying to sell stolen coins from the theft.” The
officer’s hearsay testimony was the only evidence about any intent Lawrence may have
had to sell the stolen property. Defense counsel did not object. Certainly, there is
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nothing constitutionally impermissible about the admission of hearsay evidence. Nor is
there a mandate for counsel to raise every objection that might have merit. But the State
has not argued that any hearsay exception applied, and an objection surely would have
been sustained. It was an important piece of evidence, particularly in light of the defense
theory—that Lawrence had not acted with the purpose of depriving the owner of the
coins. Lawrence was arrested less than two days after the theft occurred. He claimed at
trial that he helped Dubois remove the stolen coins from the home of an acquaintance
because there were children present. He testified that he was trying to figure out a way to
get the coins back to Wayne Miller’s shop without incident because he knew and
respected Miller’s wife, who runs a homeless shelter in Helena. This perhaps sounds like
an implausible story. And a jury would be free to reject his testimony. But that assumes
a trial safeguarded by the protections of the Constitution, including the effective
assistance of counsel, instructions that correctly state the applicable law, and the full
protection of the presumption of innocence.
¶33 Had any of the claimed mistakes been isolated in an otherwise error-free trial,
none would justify reversal. But cumulatively, they resulted in a trial in which
inadmissible evidence was the only proof of an element of the offense on which the jury
was improperly instructed and which the prosecutor misstated in argument, along with
her unartful short-circuiting of the presumption of innocence. There was no plausible
strategic reason for counsel’s failure to seek exclusion of harmful evidence or to propose
a correct instruction on mental state when it was a key theory of the defense. See State v.
Kougl, 2004 MT 243, ¶ 20, 323 Mont. 6, 97 P.3d 1095 (concluding that defendant was
15
given ineffective assistance of counsel, in part, because counsel “failed to use the law to
strike at the heart of the State’s case”). Lawrence has, in my view, sustained his burden
to show that the combination of miscues in his brief trial prejudiced his right to a fair
shake. I agree with the decision to give him a new trial.
/S/ BETH BAKER
Chief Justice Mike McGrath, dissenting.
¶34 The statement referenced by the majority was made as part of a closing argument,
the summation made by the attorneys following the conclusion of the presentation of
evidence to the jury. The statement was made at the end of that closing argument,
following her summation of all the evidence submitted.
¶35 Taken in context of the entire proceeding, it is clear that the prosecution was not
suggesting that the defendant was not entitled to the presumption of innocence, but rather
making the argument that the evidence she had just summarized would overcome that
presumption of innocence.
¶36 The jurors were properly instructed by the District Court Judge. Instruction No. 4
provided:
The Defendant is presumed to be innocent of the charge against him. This
presumption remains with him throughout every stage of the trial and
during your deliberations on the verdict. It is not overcome unless from all
the evidence in the case you are convinced beyond a reasonable doubt that
the Defendant is guilty. The Defendant is not required to prove his
innocence or present any evidence.
Significantly, Instruction No. 2 provided:
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You should take the law in this case from my instructions alone. You
should not accept anyone else’s version as to what the law is in this case.
You should not decide this case contrary to these instructions, even though
you might believe the law ought to be otherwise. Counsel, however, may
comment and argue to the jury upon the law as given in these instructions.
¶37 Instructions are not only read aloud by the judge, but they are provided to the jury
in writing to be taken into deliberations for the purpose of review by the jurors. They
clearly provide that jurors should take the law from the instructions alone, and not accept
other versions of what the law is. The prosecutor’s closing statement here was a
comment on the evidence presented and not intended to counter the law as it was clearly
given in the District Court instructions.
¶38 As the majority notes, the plain error doctrine should be used sparingly, and only
in cases where the alleged error may “result in a manifest miscarriage of justice, leave
unsettled the question of the fundamental fairness of the proceeding, or compromise the
integrity of the judicial process.” McDonald, ¶ 8. Viewed in context of the entire trial,1
particularly the instructions, this comment made by the prosecutor at the end of the
closing argument, after summarizing the evidence presented to the jury, does not meet the
standard required to invoke plain error review.
¶39 Closing argument is a unique portion of a trial. It is an opportunity for the
attorneys to present the case as they see it. And by its very nature, it is argument—not
evidence. Jurors understand the function of argument. The lawyers in the case
1
The prosecutor also made it clear in her final closing argument that the State has the burden of
proving the charges beyond a reasonable doubt, and that they readily accept that challenge.
17
understand the function of closing argument and objecting in a closing argument is
seldom necessary.
¶40 For the reasons stated above, I dissent.
/S/ MIKE McGRATH
Justice Jim Rice joins the Dissent of Chief Justice Mike McGrath.
/S/ JIM RICE
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