State v. Barrows

Decision Date21 August 2018
Docket NumberDA 17-0061
Citation424 P.3d 612,2018 MT 204,392 Mont. 358
Parties STATE of Montana, Plaintiff and Appellee, v. Craig Alan BARROWS, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Chad Wright, Appellate Defender, Alexander H. Pyle (argued), Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman (argued), Assistant Attorney General, Helena, Montana, Marcia Boris, Lincoln County Attorney, Jeffrey Zwang, Deputy County Attorney, Libby, Montana

Ingrid Gustafson delivered the Opinion of the Court.

¶1 Following jury trial, Appellant Craig Barrows (Barrows) was convicted of three counts of felony assault with a weapon and two counts of felony criminal possession of dangerous drugs and sentenced to serve 30 years at the Montana State Prison. He appeals from the December 27, 2016 Judgment and Sentence of the 19th Judicial District Court, Lincoln County. We reverse in part, affirm in part, and remand for action consistent with this opinion.

¶2 We restate the issues on appeal as follows:

1. Whether plain error review of the District Court’s mid-trial dismissal of a felony drug charge and subsequent re-instatement of that charge is appropriate in light of Barrows’s right to avoid double jeopardy?

2. Whether the District Court violated Barrows’s right to represent himself?

3. Whether the District Court’s written judgment conforms with its oral pronouncement and statutory IT and prosecution surcharges?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Double Jeopardy. Barrows was charged with three counts of felony assault with a weapon and two counts of felony criminal possession of dangerous drugs. One of the drug possession charges involved possession of methamphetamine and the other involved possession of Lorazepam, a benzodiazepine. In the State’s case-in-chief, the investigating officer testified he did not send the Lorazepam he collected to the State Crime Lab. Instead, the officer typed the number located on the pills into "Drugs.com," to identify the pills as Lorazepam. During a recess conference with the parties before the State rested, the District Court sua sponte told Barrows that his defense counsel "has basically made sure that you are not going to be convicted of Lorazepam possession because I am not going to give that as a charge." Upon resuming trial, the State rested without putting on any additional evidence. The District Court dismissed that charge, stating "I will dismiss the Lorazepam case. The Lorazepam charge is off."

¶4 Barrows then presented his defense and testified on his own behalf. The prosecutor asked Barrows whether he knew there was Lorazepam in the vehicle he was driving when he was arrested. Barrows testified that he did.

¶5 When settling jury instructions, the State proposed instructions relating to the Lorazepam charge. The court asked if the defense objected to the State’s proposed instruction stating, "I wasn't going to give it but since he admitted it." Defense counsel did not object. The court explained, "And my reasoning for letting that Lorazepam in was I thought there might be some actual evidence but just looking it up on the internet isn't enough in my opinion." The jury found Barrows guilty of all charges, including possession of Lorazepam. Barrows was sentenced to twenty years each for the three assault with a weapon charges and five years each for the two criminal possession of dangerous drugs charges. The court ran each felony assault with a weapon sentence concurrently and the felony drug possession sentences consecutively, resulting in a net commitment to the Montana State Prison of 30 years. Barrows contends his Lorazepam possession conviction was improper violating his right to avoid double jeopardy.

¶6 Self-representation. On the morning of trial prior to voir dire, Barrows expressed displeasure with the competence of his legal counsel. During inquiry with the court Barrows expressed "I would like to proceed on my own. I would like to speak on my own behalf." The District Court initially appeared to grant that request and advised Barrows, "you have to follow the general rules. You don't get to just talk to the jury. You have to call witnesses, ask questions, make objections, go through voir dire just the way an attorney would." The State then advised that sometimes when a person represents himself, it "can be a great disadvantage to him." Thereafter, the District Court questioned whether Barrows really wanted to represent himself versus preferring to be represented by other legal counsel. Barrows admitted he did not know a thing about the way to proceed. After explaining there were complicated issues in a trial, including voir dire, the District Court indicated it did not believe Barrows was at all prepared to represent himself. Barrows did not disagree. The court then retained his legal counsel’s representation. At various later times Barrows reiterated his displeasure with his legal counsel asserting he did not adequately cross examine the State’s witnesses, failed to negotiate a favorable plea agreement, and did not call witnesses. Following presentation of the evidence during settlement of jury instructions, Barrows’s behavior escalated resulting in the need to restrain and remove him. Although he had agreed to sit quietly with counsel upon his return to the courtroom for closing arguments, he instead requested his counsel leave. The District Court denied the request indicating it did not believe Barrows capable of presenting a closing argument. Following closings, Barrows stood up and yelled out to the jury, "There was[sic] other witnesses in this case that they did not let testify on my behalf." This outburst again resulted in the need to remove Barrows from the courtroom. Thereafter, he participated via videoconferencing and cell phone from a different room in the courthouse. Barrows asserts the District Court violated his right to represent himself.

¶7 Questioned Elements of the Judgment. Barrows raised the following issues with the form of the written judgment which need to be amended to conform it to the District Court’s oral pronouncement at sentencing: Strike the sentence on page 2, "If paroled, Defendant shall comply with the following terms and conditions of parole:"; to strike the conditions 1-12 and 19-40 which deal with parole and were not mentioned in the sentencing hearing; Paragraph 13(d) imposes an IT fee per count of $50 but should impose one per user of $10 total; Paragraph 13(h) imposes a $500 fee for the prosecution which may only total $100. The State concedes the written judgment does not conform to the court’s oral pronouncement of sentence and agrees with the amendment of the written judgment as requested by Barrows.

STANDARD OF REVIEW

¶8 Unpreserved issues alleging violation of a fundamental constitutional right are reviewable under the common law plain error doctrine. State v. White , 2014 MT 335, ¶ 14, 377 Mont. 332, 339 P.3d 1243. Plain error review is appropriate when failure 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. Aker , 2013 MT 253, ¶ 21, 371 Mont. 491, 310 P.3d 506.

¶9 Article II, Section 24 of the Montana Constitution provides a defendant the right of self-representation. To determine whether a request for self-representation was unequivocal, we review the record as a whole. State v. Swan , 2000 MT 246, ¶ 20, 301 Mont. 439, 10 P.3d 102. The Sixth and Fourteenth Amendments to the U.S. Constitution implicitly guarantee the same. Faretta v. California , 422 U.S. 806, 818-19, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The validity of a Faretta waiver is a mixed question of law and fact reviewed de novo. United States v. Moreland , 622 F.3d 1147, 1156 (9th Cir. 2010).

DISCUSSION

¶10 1. Whether plain error review of the District Court’s mid-trial dismissal of a felony drug charge and subsequent re-instatement of that charge is appropriate in light of Barrows’s right to avoid double jeopardy?

¶11 We must first decide whether the plain error doctrine is appropriate in this case.

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. 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.

State v. Lawrence , 2016 MT 346, ¶ 9, 386 Mont. 86, 385 P.3d 968 (internal citations omitted). Here, the issue is directly constitutional. Article II, Section 25 of the Montana Constitution and the Fifth and Fourteenth Amendments to the U.S. Constitution protect a defendant from double jeopardy—being tried or convicted of an offense of which the defendant has already been acquitted. City of Billings ex rel. Huertas v. Billings Mun. Court , 2017 MT 261, ¶ 17, 389 Mont. 158, 404 P.3d 709. Failure to review this case would result in Barrows serving the five-year Lorazepam drug possession charge portion of his sentence consecutive to all other counts and leave unsettled the fundamental fairness of using Barrows’s admission made at trial after that charge had been dismissed. This case warrants review under the plain error doctrine.

¶12 The State and Barrows agree Smith v. Massachusetts sets forth the framework for analysis of double jeopardy claims based on a midtrial dismissal. 543 U.S. 462, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005). Barrows asserts Smith establishes a double jeopardy violation under the facts of this case. In Smith , the Commonwealth of Massachusetts charged Smith with unlawful possession...

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  • State v. Valenzuela
    • United States
    • Montana Supreme Court
    • September 28, 2021
    ...issues alleging violations of a fundamental constitutional right are reviewable under the common law plain error doctrine. State v. Barrows, 2018 MT 204, ¶ 8, 392 358, 424 P.3d 612. Plain error review is appropriate when failure to review the alleged error "may result in a manifest miscarri......
  • State v. Yang
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    ...issues alleging violation of a fundamental constitutional right are reviewable under the common law plain error doctrine." State v. Barrows , 2018 MT 204, ¶ 8, 392 Mont. 358, 424 P.3d 612 (citing State v. White , 2014 MT 335, ¶ 14, 377 Mont. 332, 339 P.3d 1243 ). "The purpose of the plain e......
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