State v. Abel

• Decision Date: 09 November 2021
• Docket Number: DA 19-0455
• Citation: 2021 MT 293
• Parties: STATE OF MONTANA, Plaintiff and Appellee, v. JACOB WILLIAM ABEL, Defendant and Appellant.
• Court: Montana Supreme Court

2021 MT 293

STATE OF MONTANA, Plaintiff and Appellee, v. JACOB WILLIAM ABEL, Defendant and Appellant.

No. DA 19-0455

Supreme Court of Montana

November 9, 2021

Submitted on Briefs: July 28, 2021

APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC 18-224(D) Honorable Dan Wilson, Presiding Judge

For Appellant: Kathleen Foley, Attorney at Law, Missoula, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Bree Gee Assistant Attorney General, Helena, Montana Travis R. Ahner Flathead County Attorney, Kalispell, Montana

OPINION

Dirk Sandefur, Justice

¶l Jacob William Abel (Abel) appeals from his June 13, 2019 judgment of conviction and sentence in the Montana Eleventh Judicial District Court, Flathead County, on the offense of partner or family member strangulation, a felony in violation of § 45-5-215, MCA (PFMS). The restated issue on appeal is:

Whether the District Court committed plain error by allowing counsel to waive his right to testify at trial through counsel without a record inquiry and judicial finding that he knowingly, voluntarily, and intelligently chose not to do so?

We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 By Information filed June 7, 2018, the State charged Abel with PFMS and assault with a weapon, a felony in violation of § 45-5-213, MCA. The State alleged that, during separate arguments with his girlfriend over a two-day period, he strangled her and struck her in the face with a folding chair. After the State rested at the end of the first day of trial in April 2019, a sidebar conference occurred between court, counsel, and Abel at which the court asked whether he was going to testify. Defense counsel advised that he was unsure and would be discussing the matter with Abel before trial resumed in the morning. After dismissing the jury for the evening, the court stated to counsel that "I assume that over the evening recess, . . ., you'll have time to discuss with your client whether he'd like to testify," to which counsel responded in the affirmative. When trial resumed the next morning, the following colloquy occurred between the court, defense counsel, and Abel outside the presence of the jury:

Court: Good morning.

Counsel: Good morning. [To Abel:] What are you going to do?

Abel: I really want Chris Kidney.

Counsel: That's nice. We don't have [him] as a witness. Are you going to testify, or not?

Court: Do you want a moment alone?

Counsel: No. We've had plenty of moments alone.

Court: Okay.

Counsel: We're out of time, Your Honor.

Court: Okay.

Abel: Can I say something?

Counsel: We need to talk alone, then. You can't say it in open court or you will incriminate yourself. This is a courtroom. [To Court:] I'll be back in a moment.

Court: Okay.

After a short recess, the court asked defense counsel, "how does your client wish to proceed?" Counsel responded "[h]e wishes to remain silent, Your Honor. We won't be presenting any witness testimony." The court then proceeded with settling of jury instructions and closing arguments. The jury ultimately found Abel guilty of PFMS, but not assault with a weapon.

¶3 Later, at sentencing, Abel presented two witnesses who testified that he was not a violent person and thus could not have strangled his girlfriend as alleged. Rather than allocute, and upon acknowledging to counsel that "we're not here to second guess the jury or say they[] [were] wrong," Abel stated that he wanted to testify "to tell the [c]ourt exactly what happened." In response to the District Court's challenge that "you didn't testify at trial," Abel stated, "I did not. I wanted to. I was talked out of it at the last moment. Really didn't get to make a decision." He then testified to a different version of events that contradicted the victim's account at trial. Based on his new account of events, Abel countered the State's recommendation, for an unsuspended three-year commitment to the Department of Corrections (DOC), with his alternative recommendation for a suspended three-year commitment. Deviating from both, the District Court sentenced him to a suspended five-year DOC commitment with credit for time served, subject to various conditions of probation and statutory fees and charges. Abel timely appeals.

STANDARD OF REVIEW

¶4 Failure to contemporaneously object to an asserted error generally constitutes a waiver of the right to later raise it on appeal. See §§ 46-20-104(2) and -701(2), MCA; State v. Long, 2005 MT 130, ¶ 35, 327 Mont. 238, 113 P.3d 290 (issues raised for the first time on appeal are generally not reviewable due to unfairness of faulting a lower court for failure to correct an error not brought to its attention). As a narrow exception to the waiver rule, however, we may, in our discretion, review and correct an unpreserved assertion of error upon a showing of: (1) a plain or obvious error; (2) that affected a constitutional or other substantial right; and (3) which prejudicially affected the fundamental fairness or integrity of the proceeding. State v. Finley, 276 Mont. 126, 134-38, 915 P.2d 208, 213-15 (1996) (citing United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392 (1936), inter alia), partially overruled on other grounds by State v. Gallagher, 2001 MT 39, ¶ 21, 304 Mont. 215, 19 P.3d 817. See also State v. Favel, 2015 MT 336, ¶¶ 30-48, 381 Mont. 472, 362 P.3d 1126 (McKinnon, J., specially concurring-contrasting "traditional" plain error analysis under Finley and Atkinson with inconsistent "threshold" analytical approach); State v. Whitehom, 2002 MT 54, ¶¶ 15-18, 309 Mont. 63, 50 P.3d 121 (discussing Finley formulation of common law plain error doctrine); State v. Clausell, 2001 MT 62, ¶¶ 53-54, 305 Mont. 1, 22 P.3d 1111 (in re analytical inconsistency in Montana plain error doctrine jurisprudence). But, mere assertion that an asserted error implicates a constitutional or other substantial right is thus insufficient-the party asserting plain error must affirmatively demonstrate satisfaction of all elements of the plain error doctrine. State v. Gunderson, 2010 MT 166, ¶ 100, 357 Mont. 142, 237 P.3d 74. While our review of "issues of constitutional law" is plenary, we generally do not address constitutional issues raised for the first time on appeal, except under the plain error doctrine. State v. Flowers, 2018 MT 96, ¶ 12, 391 Mont. 237, 416 P.3d 180; City of Billings v. Nelson, 2014 MT 98, ¶ 16, 374 Mont. 444, 322 P.3d 1039. See also State v. Taylor, 2010 MT 94, ¶¶ 12-13, 356 Mont. 167, 231 P.3d 79. Whether an asserted constitutional or other error of law was plain error is a question of law subject to de novo review. State v. Trujillo, 2020 MT 128, ¶ 6, 400 Mont. 124, 464 P.3d 72 (citing State v. Stratton, 2017 MT 112, ¶ 7, 387 Mont. 384, 394 P.3d 192).

DISCUSSION

¶5 Criminal defendants have fundamental federal and Montana constitutional rights to testify on their own behalf. Cheetham v. State, 2019 MT 290, ¶ 19, 398 Mont 131, 454 P.3d 673 (right to testify implicit in Mont. Const, art. II, § 24 right to remain silent and corresponding right to due process); State v. Hamm, 250 Mont. 123, 128, 818 P.2d 830, 833 (1991) (right to testify implicit in Mont. Const, art. II, § 25 "right to appear and defend in person"), overruled on other grounds by State v. Running Wolf, 2020 MT 24, ¶ 29, 398 Mont. 403, 457 P.3d 218; Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S.Ct. 2704, 2708-10 (1987) (right to testify implicit in the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution). Like waivers of other fundamental constitutional trial rights, a defendant's waiver of the right to testify at trial must be knowing, voluntary, and intelligent. See State v. Boucher, 2002 MT 114, ¶ 22, 309 Mont. 514, 48 P.3d 2l(internal citations omitted); State v. Knox, 2001 MT 232, ¶ 9, 307 Mont. 1, 36 P.3d 383 (internal citations omitted); United States v. Ortiz, 82 F.3d 1066, 1070-71 (D.C. Cir. 1996); United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993); United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir. 1987).

¶6 However, due to the strategic and often last-minute nature of the decision to testify at trial, and the corresponding duty of counsel to apprise and advise the client in regard thereto, trial courts may infer a knowing, voluntary, and intelligent waiver of the right to testify from the statements and conduct of the defendant and counsel despite a split of authority among federal circuit courts of appeal as to the proper analytical approach for making that inference. One line of authority holds that courts may properly infer a knowing, voluntary, and intelligent waiver based solely on a represented defendant's failure to personally object or otherwise assert the right at trial. See Joelson, 7 F.3d at 177; United States v. McMeans, 927 F.2d 162 163 (4th Cir. 1991); United States v. Martinez, 883 F.2d 750, 760 (9th Cir. 1989); Bernloehr, 833 F.2d at 751-52. The other holds that a defendant's mere silence is insufficient alone to manifest a knowing, voluntary, and intelligent waiver absent some other record indicia of awareness of the right and his or her voluntary and intelligent adherence or acquiescence to counsel's advice to not testify. See Chang v. United States, 250 F.3d 79, 83-84 (2d Cir. 2001) (holding that defendant's "silence alone" is insufficient basis for inference of waiver of right to testify absent some record indicia "suggesting a knowing waiver"); Ortiz, 82 F.3d at 1070-72 (noting duty of counsel to advise client in furtherance of knowing, voluntary, and intelligent decision to testify or not and that court may thus properly infer waiver of the right from the silence of represented defendant absent record indicia of client-counsel discord, reason to...