State v. Chafee

• Decision Date: 19 August 2014
• Docket Number: No. DA 13–0332.,DA 13–0332.
• Citation: 376 Mont. 267,332 P.3d 240
• Parties: STATE of Montana, Plaintiff and Appellee, v. Chelsea Mae CHAFEE, Defendant and Appellant.
• Court: Montana Supreme Court

376 Mont. 267

332 P.3d 240

STATE of Montana, Plaintiff and Appellee,

v.Chelsea Mae CHAFEE, Defendant and Appellant.

No. DA 13–0332.

Supreme Court of Montana.

Submitted on Briefs July 23, 2014.

Decided Aug. 19, 2014.

For Appellant: Jacquelyn M. Hughes, Hughes Law, P.L.L.C., Billings, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana, Fred Van Valkenburg, Missoula County Attorney, Shaun Donovan, Deputy County Attorney, Missoula, Montana.

Justice PATRICIA COTTER delivered the Opinion of the Court.

¶ 1 Chelsea Mae Chafee appeals her conviction by a jury in the Fourth Judicial District Court, Missoula County, of accountability for arson, a felony, and accountability for theft, a felony. We reverse and remand for further proceedings consistent with this Opinion.

¶ 2 We restate the issues on appeal as follows:

¶ 3 Was Chafee's counsel ineffective when he failed to offer a “mere presence” jury instruction and failed to object to evidence of other bad acts?

¶ 4 Is Chafee entitled to a new trial on the basis of prosecutorial misconduct?

¶ 5 Is Chafee entitled to a new trial based upon the cumulative error doctrine?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 On the morning of October 7, 2011, Missoula County law enforcement officers responded to a report of a burning vehicle on Pattee Canyon Drive. The owners of the vehicle called 9–1–1 after approaching their unattended vehicle, noticing it was on fire, and observing a green SIN quickly drive away. Approximately an hour later, officers stopped a vehicle occupied by Chafee and Antonio Robinson. Chafee sat in the driver's seat. Robinson and Chafee were questioned by the officers and were eventually arrested. On October 25, 2011, the State charged Chafee by information with accountability for arson, a felony, in violation of §§ 45–6–103, and –2–302, MCA, and accountability for theft, a felony, in violation of §§ 45–6–301(8) and –2–302, MCA. Robinson was charged with arson and theft. He subsequently pleaded guilty and was sentenced for those charges.

¶ 7 Prior to trial, the State submitted proposed jury instructions. Defense counsel offered no jury instructions. Trial commenced on January 2, 2013, and went into the next day. Robinson testified that Chafee pulled over, at his request, near the victims' vehicle. According to Robinson, he then exited Chafee's vehicle and tried to gain entry to the other vehicle. Because the doors were locked, Robinson smashed a window with a rock. He spent 10–15 minutes unloading the car's contents and loading them into Chafee's vehicle. He then lit the car on fire and told Chafee to drive. Robinson testified that his actions were impulsive, and that Chafee did not participate in the crimes.

¶ 8 Jeffrey Russell, a witness for the State, testified that Chafee had described the crimes to him. According to Russell, Chafee stated that she and Robinson had been drinking and broke into the vehicle because “it was just something to do.” Russell testified that Chafee lit the vehicle on fire with Coleman fuel or lighter fluid. Chafee's counsel suggested during cross-examination that Russell was mad at Chafee for turning him in at work for stealing food and for unauthorized use of a computer, which resulted in Russell being fired, and that he was “willing to lie here to get her thrown in jail.” During the State's redirect, Russell testified that Chafee was also involved in the workplace theft. The prosecutor later referenced Chafee's alleged role in the “workplace theft” during his closing argument.

¶ 9 In his closing, the prosecutor asked jurors “to get in touch with yourself, with your own center, your own soul, your own heart, and ask yourself what is the truth?” After telling jurors they couldn't “get in touch with ... the essence of what you know is right and what is true” and then acquit Chafee, defense counsel objected. The District Court overruled the objection, calling the comments “argument.” The prosecutor ended by stating: “I'm asking you to look at everything and to use those attributes that the defense doesn't want you to consider, like common sense, like what you believe is most true. And you will not be able to do that and conclude that this defendant was not involved in this case.”

¶ 10 On January 3, 2013, the jury found Chafee guilty of both counts. The District Court sentenced Chafee to two concurrent ten-year commitments with the Department of Corrections, each with eight years suspended. Chafee timely appealed her conviction.

STANDARDS OF REVIEW

¶ 11 “Only record-based ineffective assistance of counsel claims are considered on direct appeal.” State v. Ugalde, 2013 MT 308, ¶ 28, 372 Mont. 234, 311 P.3d 772 (citations omitted). “To the extent such claims are reviewable, they present mixed questions of law and fact that we review de novo.” Ugalde, ¶ 28 (citations and internal quotation marks omitted).

¶ 12 We consider closing argument statements in the context of the entire argument and review a district court's rulings on objections to closing argument content for abuse of discretion. State v. Cooksey, 2012 MT 226, ¶ 40, 366 Mont. 346, 286 P.3d 1174 (citations omitted). A defendant must make a timely objection to closing argument statements or the objection is deemed to be waived. Cooksey, ¶ 40 (citation omitted). We may, however, review such an issue under the plain error doctrine “in those situations that implicate a defendant's fundamental constitutional rights when 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.” State v. Walton, 2014 MT 41, ¶ 10, 374 Mont. 38, 318 P.3d 1024 (citation and internal quotation marks omitted). Plain error review is discretionary, and we apply it on a case-by-case basis. Walton, ¶ 10 (citation omitted).

DISCUSSION

¶ 13 1. Was Chafee's counsel ineffective when he failed to offer a “mere presence” jury instruction and failed to object to evidence of other bad acts?

¶ 14 The defense theory offered by Chafee at trial was that, though she had been present when Robinson committed the crimes, she had remained in the vehicle and had not participated in any way. In other words, she was “merely present,” and did not commit any crime. Defense counsel argued in his closing argument that

there is absolutely no evidence that Chelsea did anything while Antonio Robinson was rifling through the car and putting the stuff into her car. You will not find in the instructions anything that says that a person who's sitting there, has any duty to run away, has any duty to drive away, has any duty to do anything.He stressed that “[the law] requires that she plan or agree with Mr. Robinson to commit this offense, and that she's actually aiding him. She didn't do anything to aid him. She sat there. There's no requirement under the law that she affirmatively do anything.”

¶ 15 Though defense counsel argued that mere presence was insufficient to establish that Chafee was involved in the crimes, he failed to offer the following standard jury instruction, approved by this Court as one of the instructions that correctly and adequately instructs the jury on the law of accountability, State v. Kills on Top, 243 Mont. 56, 92, 793 P.2d 1273, 1298 (1990):

Mere presence at the scene of the crime and knowledge that a crime is being committed are not sufficient to establish that the defendant was involved in the crime. To be responsible, you must find beyond reasonable doubt that the defendant was a participant and not merely a knowing spectator.

¶ 16 On appeal, Chafee argues that her counsel's failure to offer a “mere presence” jury instruction was not based on reasonable or sound professional judgment, and that it prejudiced her right to a fair trial. The State counters that defense counsel's failure to request the instruction “was not deficient performance, because the evidence demonstrated Chafee's direct involvement and positive actions to aid, abet, promote, and facilitate Robinson's criminal acts.”

¶ 17 A defendant's right to effective assistance of counsel is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, and by Article II, Section 24 of the Montana Constitution.

Before reaching the merits of an ineffective assistance of counsel claim in a direct appeal, we must first determine whether the allegations are properly before the Court on appeal or whether the claim should be raised in a petition for post-conviction relief pursuant to § 46–21–101, MCA.

Ugalde, ¶ 65 (citation and internal quotation marks omitted). We will not address a claim on appeal if it relates to matters outside of the record, Ugalde, ¶ 65 (citation omitted), unless it is unnecessary in the first instance to ask “why” counsel did or did not perform as alleged and seek an answer by reference to the record. State v. Kougl, 2004 MT 243, 71114–15, 323 Mont. 6, 97 P.3d 1095 (citation omitted). For example, it is unnecessary to ask “why” counsel performed as he did when there is “no plausible justification” for defense counsel's action or inaction. Kougl, ¶ 15.

¶ 18 As noted, defense counsel argued to the jury that Chafee's mere presence at the scene was insufficient to support a conviction; however, he failed to offer the jury instruction that would have informed the jury that his argument was legally correct. The prosecutor was able to capitalize on this omission by arguing in closing for a guilty verdict because “[e]ven if she never got out of the vehicle, she wasn't just sitting there. She sat there while she let Antonio Robinson use her vehicle to load up this stolen stuff.” He also told the jury that when people get into a mess, the law “imposes an obligation on them to do something to undo what they had done.” These arguments could have been directly refuted had defense couns...