State v. McDonald

• Decision Date: 10 April 2013
• Docket Number: No. DA 11–0779.,DA 11–0779.
• Citation: 369 Mont. 483,299 P.3d 799
• Parties: STATE of Montana, Plaintiff and Appellee, v. Ramah Irene McDONALD, Defendant and Appellant.
• Court: Montana Supreme Court

369 Mont. 483

299 P.3d 799

STATE of Montana, Plaintiff and Appellee,

v.Ramah Irene McDONALD, Defendant and Appellant.

No. DA 11–0779.

Supreme Court of Montana.

Submitted on Briefs Jan. 31, 2013.

Decided April 10, 2013.

For Appellant: Wade Zolynski, Chief Appellate Defender; Jacob Q. Johnson, Assistant Appellate Defender; Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General; Tammy A. Hinderman, Assistant Attorney General; Helena, Montana, Fred R. Van Valkenburg, Missoula County Attorney; M. Shaun Donovan, Deputy County Attorney; Missoula, Montana.

Justice JIM RICE delivered the Opinion of the Court.

[369 Mont. 484]¶ 1 Ramah Irene McDonald (McDonald) appeals the judgment entered by the Fourth Judicial District Court, Missoula County, following a trial by jury that found her guilty of Assault on a Peace Officer, a felony.

¶ 2 McDonald raises the following issue:

¶ 3 Did the prosecutor's comments during closing argument constitute plain error?

PROCEDURAL AND FACTUAL BACKGROUND

¶ 4 McDonald was an inmate at the Missoula County Detention Center and became involved in a heated exchange with Detention Officer Paige Pavalone (Pavalone) over McDonald's disagreement with an instruction that she remove paper from the window of her cell that obstructed the view into the cell. Hearing the loud conversation, Detention Officers Eric Lechleitner (Lechleitner) and Michael Gauci (Gauci) stepped into the area. The matter escalated when McDonald refused to comply with the instructions of the officers to immediately report to the maximum security unit. A physical altercation ensued, wherein McDonald bit Pavalone on the arm. McDonald was charged with one count of felony assault on a police officer in violation of § 45–5–210, MCA.¹ The first trial resulted in a mistrial when the jury was unable to reach a verdict.

¶ 5 The case was retried to a jury on September 26–27, 2011. Pavalone testified she had been bitten by McDonald, and Lechleitner and Gauci testified that Pavalone had yelled that she was being bitten during the altercation. Detention Officer Corey Hawkins testified that he observed a red mark with what appeared to be saliva on Pavalone's arm after the altercation. McDonald testified she had not bitten Pavalone, and Katie Garding, another inmate, testified that she did not see McDonald bite Pavalone. The prosecutor's closing arguments included the following statements:

Did Paige Pavalone get bit? She said, she got bit ...

During the time of this incident, both Officer Gauci and Officer Lechleitner heard Paige say—stop biting me, or whatever.

...

And as you're looking at the credibility of these witnesses ... think about these officers.... It would have been a very easy thing—for instance, Officer Hawkins to say—oh, sure, I heard her say something similar—but, they didn't do that. They were making a real effort to be as clear with you, as they possibly could. It's only about what they remember. But, even, with that, you have Paige Pavalone and two other officers saying that in the middle of this, she said—stop biting my arm. Why in the world—why in the world would she say that, unless that was happening to her?

... Look at their appearance, their manner, their fairness, their candor, their intelligence. What is their interest in the outcome of the case? I'm not telling you that none of the officers care about how this case comes out.... But, their interest in this is way, way, way less than the Defendant's interest in this. She's going on trial—she's the one who would be convicted.

We don't really have anything here in terms of character and truthfulness. We have some conflicts with our statements. This instruction says the evidence from one witness, you believe, is sufficient. This case could have been the State calling one witness—Paige Pavalone.... If you believe her, that could be the end of the case. That's all the testimony the State would have been obligated to provide. If you believe that one witness—now, obviously, we want to provide as much we can, so we provided the other witnesses. But, she's a completely believable witness. Ask yourselves, as you deliberate this—what's not to believe about her testimony? It's supported by everything....

¶ 6 During his rebuttal, the prosecutor stated:

[W]hat I'd like to do is go through some of the comments that [defense counsel] Mr. Daly made. I don't agree with his characterization that this is an overreaction, that there was too much force used—I should say, I don't personally—my personal—has nothing to do with this. It's not even proper for you to consider, but I don't believe the evidence shows that there was an overreaction here by officer Pavalone. I don't believe their evidence shows there was excessive force used. I don't believe that the evidence shows Ms. McDonald was injured, significantly. I don't believe that the evidence shows that this was a fight picked by Paige Pavalone.

...

Officer Pavalone's testimony—Mr. Daly says she couldn't remember much.

...

I don't think there's any flaw in what [Pavalone] said, that's significant. There's certainly, differences. What does that mean? That means these people didn't rehearse their testimony. They're coming in and telling you the truth. This isn't some story, they're telling you. They're telling you what they, honestly, remember.

(Emphasis added.)

¶ 7 McDonald's counsel did not object to any of these comments. The jury returned a guilty verdict. McDonald appeals.

STANDARD OF REVIEW

¶ 8 “We generally do not review on appeal issues that were not raised before the district court. However, we may undertake review of such an issue under the plain error doctrine 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.” State v. Hayden, 2008 MT 274, ¶ 17, 345 Mont. 252, 190 P.3d 1091 (citing State v. Daniels, 2003 MT 247, ¶ 20, 317 Mont. 331, 77 P.3d 224). The decision to invoke plain error review is a discretionary one that is to be used sparingly on a case-by-case basis. Hayden, ¶ 17 (citing State v. Rosling, 2008 MT 62, ¶ 77, 342 Mont. 1, 180 P.3d 1102).

DISCUSSION

¶ 9 Did the prosecutor's comments during closing argument constitute plain error?

¶ 10 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. Hayden, ¶ 27. “A prosecutor's misconduct may be grounds for reversing a conviction and granting a new trial if the conduct deprives the defendant of a fair and impartial trial.” Hayden, ¶ 27 (citing Clausell v. State, 2005 MT 33, ¶ 11, 326 Mont. 63, 106 P.3d 1175). “We consider 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 (citing State v. Roubideaux, 2005 MT 324, ¶ 15, 329 Mont. 521, 125 P.3d 1114). “We will not presume prejudice from the alleged misconduct, rather the defendant must show that the argument violated his substantial rights.” Makarchuk, ¶ 24 (citing Roubideaux, ¶ 11).

¶ 11 McDonald argues that the prosecutor's comments during closing arguments constitute misconduct and warrant reversal of her conviction under plain error review. She argues that the prosecutor repeatedly made direct comments about the reliability of the witnesses. Specifically, she focuses on the phrases used by the prosecutor, highlighted in the above block quotation, to describe the State's witnesses as “telling you the truth,” that “their interest in this is way, way, way less than the Defendant's interest in this,” that Paige Pavalone was “a completely believable witness,” and that the prosecutor “did not believe” McDonald's arguments.² She relies primarily on our decision reversing the defendant's conviction for prosecutorial misconduct in Hayden.

¶ 12 We exercised plain error review and reversed the defendant's conviction in Hayden for multiple errors committed by the prosecutor. Hayden, ¶¶ 31–32. Without objection, the prosecutor asked the investigating officer about the credibility of the witnesses and elicited his impression about the credibility of the statements they had given at the time of the alleged crime. Hayden, ¶ 31. The prosecutor “went so far as to ask [the officer] directly whether he believed [the witness] was telling the truth when he was interviewed, eliciting a response that they were telling the truth in their initial statements.” Hayden, ¶ 31. Noting that a witness may not comment on the credibility of another witness's testimony, we held that “[t]his line of questioning, which elicited [the officer's] opinion on the credibility of other witnesses, is unacceptable and invades the province of the jury.” Hayden, ¶ 31 (citing State v. St. Germain, 2007 MT 28, ¶ 27, 336 Mont. 17, 153 P.3d 591).

¶ 13 The prosecutor in Hayden had also “impinged on the jury's role by offering his own opinion as to witnesses' testimony during his closing argument” when he argued that the state's witnesses were “believable” and that the jury could rely upon the officer's testimony. Hayden, ¶ 32. The prosecutor also improperly testified “by vouching for the efficacy of the search of Hayden's residence and by stating his opinion that a scale found in the residence was used for drugs.” Hayden, ¶ 32. We reasoned that the prosecutor's arguments had “unfairly added the probative force of his own personal, professional, and official influence to the testimony of the witnesses.” Hayden, ¶ 33. We concluded that the prosecutor's conduct had “invaded the role of the jury, and ... created a clear danger that the jurors adopted the prosecutor's views instead of exercising their own independent judgment.” Hayden, ¶ 33.

¶ 14 We have explained that “[d]...