State v. Lacey

• Decision Date: 06 March 2012
• Docket Number: No. DA 11–0193.,DA 11–0193.
• Citation: 272 P.3d 1288,2012 MT 52,364 Mont. 291
• Parties: STATE of Montana, Plaintiff and Appellee, v. John Brandon LACEY, Defendant and Appellant.
• Court: Montana Supreme Court

2012 MT 52

272 P.3d 1288

364 Mont. 291

STATE of Montana, Plaintiff and Appellee,

v.John Brandon LACEY, Defendant and Appellant.

No. DA 11–0193.

Supreme Court of Montana.

Submitted on Briefs Jan. 4, 2012.Decided March 6, 2012.

For Appellant: Joslyn Hunt, Chief Appellate Defender; Matthew M. Wilcox, Wendy Johnson, Assistant Appellate Defenders, Helena, Montana.

For Appellee: Steve Bullock, Montana Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, Montana, Marty Lambert, Gallatin County Attorney; Ashley Whipple, Deputy County Attorney, Bozeman, Montana.

Justice BRIAN MORRIS delivered the Opinion of the Court.

[364 Mont. 292] ¶ 1 John Lacey (Lacey) appeals his conviction for sexual intercourse without consent in the Eighteenth Judicial District, Gallatin County. We affirm. Lacey raises the following issues:

¶ 2 Did the prosecutor make multiple statements during her opening and closing statements to the jury that warrant this Court's exercise of plain error review?

¶ 3 Did the State impermissibly change its legal theory of how Lacey committed sexual intercourse without consent?

¶ 4 We recounted in detail the factual and procedural history of this matter in State v. Lacey, 2010 MT 6, ¶ 5, 355 Mont. 31, 224 P.3d 1247. We provide here only those details pertinent to Lacey's present appeal.

¶ 5 J.G. ran away from home at the age of 15 in the spring of 1995. Lacey, the father of J.G.'s friend, offered J.G. a place to stay. Lacey provided J.G. with free alcohol. J.G. frequently consumed excessive amounts of alcohol at Lacey's house. Lacey also provided J.G. with free marijuana. J.G. smoked daily. Lacey, more than 30 years J.G.'s senior, repeatedly initiated sexual contact with J.G. when J.G. became intoxicated from drugs and alcohol. J.G. repeatedly resisted Lacey's advances. These encounters made J.G. uncomfortable, but he nevertheless continued to live at Lacey's house.

¶ 6 Lacey came into J.G.'s bedroom one evening when J.G. was highly intoxicated. Lacey, half undressed, had an erection. He grabbed J.G.'s head and shoved his penis into J.G.'s mouth. J.G., who was 16 years old at the time, unsuccessfully resisted Lacey's assault in his impaired state.

¶ 7 J.G. moved out of Lacey's house for a brief period following the encounter. Lacey eventually enticed J.G. to return, however, with offers of free alcohol and marijuana. Lacey resumed his sexual advances. J.G. continued to resist. On one occasion, however, J.G. awoke with Lacey's penis in his mouth. J.G. again moved out of Lacey's house following this second assault.

[364 Mont. 293] ¶ 8 Lacey moved to California shortly after the second incident. J.G. confided in Lacey's daughter, Rian, about Lacey's conduct. Rian corresponded with her father about the accusations made by J.G. Lacey denied that the incidents had occurred. Lacey further indicated that he had cancer—a diagnosis that Lacey never substantiated. Lacey explained that he was moving to Mexico to seek radical cancer treatment.

¶ 9 The Gallatin County Sheriff's Office began to investigate J.G.'s allegations of sexual misconduct by Lacey in November 1997. The State of Montana eventually charged Lacey with two counts of sexual intercourse without consent in April 1999. Count two of the information specifically alleged that Lacey had committed the crime while “JG was asleep and therefore incapable of consent.” Gallatin County could not locate Lacey until 2007 when law enforcement arrested him in Arizona.

¶ 10 Lacey's case proceeded to trial in 2008. A jury convicted him on both counts. This Court reversed, however, based on the district court's erroneous admission of evidence regarding Lacey's conduct with other young men under the transaction rule. We ordered a new trial. Lacey, ¶ 33, 224 P.3d 1247.

¶ 11 Lacey again faced a jury in October 2010 on two counts of sexual intercourse without consent. The first count alleged that Lacey had completed the crime through force. The second count alleged that Lacey had committed sexual intercourse without consent based upon J.G.'s incapacity to consent either due to being asleep or due to intoxication. Lacey defended himself on the grounds that he and J.G. had a consensual, loving relationship. The jury convicted Lacey on both counts.

¶ 12 Lacey moved for a new trial. He argued that the prosecutor had made inappropriate comments during her opening and closing statements intended to prejudice him with the jury. Lacey also argued that the State unlawfully had changed its legal theories regarding the nature of the sexual intercourse without consent. He argued specifically that the information did not allege force, but that the State had offered the theory at trial that Lacey had committed the sexual assault through the use of force. He further argued that the information alleged only that J.G. had been incapable of consent due to having been asleep. Lacey contended that the information had not alleged incapacitation due to J.G.'s intoxication.

¶ 13 The District Court agreed with Lacey that it should not have allowed the State to proceed on the force theory. The court substituted a not guilty verdict for the jury's guilty verdict on count one to remedy its error. The court denied Lacey's motion for a new trial with respect to the other count. Lacey appeals.

STANDARD OF REVIEW

¶ 14 We generally will not review issues not raised before the district court. State v. Thorp, 2010 MT 92, ¶ 23, 356 Mont. 150, 231 P.3d 1096. We may undertake review of such an issue, however, under the plain error doctrine. Thorp, ¶ 23. This Court invokes plain error review sparingly. Thorp, ¶ 23. We apply plain error review only in 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. Thorp, ¶ 23.

¶ 15 We review jury instructions for an abuse of discretion. State v. Spotted Eagle, 2010 MT 222, ¶ 6, 358 Mont. 22, 243 P.3d 402. The district court has broad discretion in formulating jury instructions. Spotted Eagle, ¶ 6. We review jury instructions to determine whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. Spotted Eagle, ¶ 6. Any mistake in instructing the jury must affect prejudicially the defendant's substantial rights in order to constitute reversible error. Spotted Eagle, ¶ 6.

DISCUSSION

¶ 16 Issue 1: Did the prosecutor make multiple statements during her opening and closing statements to the jury that warrant this Court's exercise of plain error review?

¶ 17 Prosecutors generally may not offer personal opinions as to the credibility of the accused or other witnesses. State v. Green, 2009 MT 114, ¶ 33, 350 Mont. 141, 205 P.3d 798. Prosecutors may comment on conflicts and contradictions in testimony. Green, ¶ 33. They also may comment on the evidence presented and suggest to the jury inferences that may be drawn from that evidence. Green, ¶ 33.

¶ 18 Lacey contends that the prosecutor's closing argument went beyond comments on the testimony and creeped into the realm of personal opinion. He first argues that the prosecutor inappropriately offered her opinions regarding witness credibility. The prosecutor informed the jury that “[t]he instruction tells you that you get to consider the appearance of the witness on the stand, their candor. Was [J.G.] candid? You bet he was.” The prosecutor proceeded to list various reasons to support the proposition that J.G. provided credible testimony before concluding that, “[J.G.] was candid with you.” The prosecutor also commented on Lacey's credibility. She concluded her commentary by stating, “Candid? Absolutely not. Absolutely not.”

¶ 19 Lacey further argues that the prosecutor made inappropriate comments regarding his guilt. The prosecutor told the jury during her opening statement that its “verdict ... should be guilty, which [Lacey] is.” The prosecutor also stated in her closing that the jury should “go back there and find [Lacey] guilty because, by God, he is.” Lacey contends that the prosecutor's inclusion of the statement “which [Lacey] is” and “find [Lacey] guilty because, by God, he is” inappropriately encroached on the jury's exclusive domain of determining guilt or innocence. He argues that these statements suggested that the prosecutor possessed personal knowledge of Lacey's guilt.

¶ 20 Lacey further notes that the prosecutor made an inappropriate inference regarding his silence. She requested the jury to “consider what [Lacey] stayed away from in his testimony on direct exam.” Lacey notes that a criminal defendant who exercises his right to remain silent cannot have his silence used against him. Doyle v. Ohio, 426 U.S. 610, 619–20, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). He concedes that his case is distinguishable from Doyle in light of Lacey's decision to take the stand. He nevertheless argues that the prosecutor's statement violates the spirit of Doyle.

¶ 21 The State counters that Lacey failed to object at trial to all the statements that he now claims prejudiced his case. The State argues that Lacey's failure to object at trial failed to preserve these issues for appeal. Lacey acknowledges that he made no objection at trial, but contends that this Court should apply plain error review. Lacey alternatively argues that counsel's failure to object constituted ineffective assistance of counsel that warrants a new trial.

¶ 22 Lacey concedes that no single allegation of prosecutorial misconduct sufficiently warrants a new trial. He instead contends that we must review his allegations of prosecutorial misconduct in the aggregate. He argues that the cumulative effect of the prosecutor's statements warrants this Court undertaking plain error review and to determine whether his counsel provided ineffective assistance of ...