State v. Newman
| Decision Date | 28 December 2005 |
| Docket Number | No. 04-507.,04-507. |
| Citation | 127 P.3d 374,330 Mont. 160,2005 MT 348 |
| Court | Montana Supreme Court |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Sandra Jordan NEWMAN, Defendant and Appellant. |
Appeal from the District Court, Twenty-First Judicial District, In and for the County of Ravalli, Cause No. DC 2003-93; Honorable Jeffrey H. Langton, Judge presiding.
Kristina Neal, Appellate Defender Office, Helena, Montana, for Appellant.
Hon. Mike McGrath, Montana Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana; George H. Corn, Ravalli County Attorney, William Fulbright, Deputy County Attorney, Hamilton, Montana, for Respondent.
¶ 1 Following a jury trial in the District Court for the Twenty-First Judicial District, Ravalli County, Sandra Jordan Newman (Newman) was convicted of four drug-related offenses. Newman appeals. We reverse the conviction and remand for a new trial.
¶ 2 Four members of this Court agree that Newman's conviction should be reversed and that this cause should be remanded for a new trial. There is not agreement amongst these members as to the basis for reversal, however. Therefore, Justice James C. Nelson (joined by Justice Patricia O. Cotter) and Justice W. William Leaphart (joined by Justice Brian M. Morris) each specially and separately concur that this cause be reversed and remanded for a new trial. The dispositive issues, facts and arguments will be addressed separately in each special concurrence.
¶ 3 We reverse and remand for a new trial.
¶ 4 I concur in our decision to reverse and remand. The issues on appeal are:
¶ 5 1. Does Newman's appellate brief adhere to the Montana Rules of Appellate Procedure?
¶ 6 2. Should this Court review Newman's claims pursuant to the doctrine of plain error review?
¶ 7 3. Did the prosecutor's closing argument deprive Newman of a fair trial?
¶ 8 In June of 2003, Newman resided in her house in Stevensville, along with her two children, Amber and Mike, and her brother, Randy Jordan (Jordan). Also living at the house was a girl named Miranda, who was one of Amber's friends. Arthur Adler, who went by the nickname "Butch," had previously lived at the house. He was Newman's boyfriend, and he passed away in May of 2003.
¶ 9 Jordan became a suspect in an investigation regarding a burglary at Ace Hardware in Stevensville. Pursuant to this investigation, law enforcement officers executed a search warrant on Newman's house on June 12, 2003. Detective Scott Burlingham, of the Ravalli County Sheriff's Office, was among the officers who searched the house. During his search, he found a bag of marijuana. He then stopped the search and applied for another search warrant based on this discovery. After securing the additional warrant, Detective Burlingham continued the search, finding drug paraphernalia and more marijuana.
¶ 10 As a result of the search, Newman was charged with criminal distribution of dangerous drugs, criminal possession of dangerous drugs, criminal possession of dangerous drugs with intent to distribute, and criminal possession of drug paraphernalia.
¶ 11 After the search of Newman's house, law enforcement officers apprehended Jordan and found marijuana in the car he was riding in. Jordan initially admitted that all the drugs at Newman's house belonged to him. However, he subsequently reached an agreement with the State whereby he agreed to testify against Newman in exchange for the State's promise to recommend a thirty-year suspended sentence in his criminal prosecution. Pursuant to this agreement, Jordan testified that the marijuana at Newman's house belonged to her, and that she sold marijuana frequently. Harold and Mary Jane Rice, Newman's neighbors, testified that people would come and go from Newman's house frequently, but admitted that they did not observe any drug transactions. Newman testified that heavy traffic at her home consisted of her friends who were visiting out of concern for her well-being subsequent to Arthur Adler's death.
¶ 12 During the State's closing argument, the prosecutor repeatedly criticized Newman for her failure to call witnesses to corroborate her testimony. Newman's counsel did not raise an objection to these comments. Newman was found guilty on all four charges and was subsequently sentenced. Newman now appeals, arguing that the prosecutor's closing argument amounted to misconduct which denied her a fair trial. Newman also argues that her trial counsel rendered ineffective assistance.
¶ 13 1. Does Newman's appellate brief adhere to the Montana Rules of Appellate Procedure?
¶ 14 The State argues that Newman has failed to adhere to Rule 23(a)(4), M.R.App.P., in asserting her claim of prosecutorial misconduct. Specifically, the State points to the argument section of Newman's brief, and contends that Newman has failed to cite the trial transcript for the contested portions of the prosecutor's closing argument. As a result, the State asserts, this Court is "required to scour the transcript to find the alleged quotes." Thus, the State contends that we should refuse to address Newman's arguments regarding prosecutorial misconduct for failure to cite to the transcript.
¶ 15 Rule 23(a)(3), M.R.App.P., requires that an appellant's brief contain a statement of the facts which includes citations to the record. Rule 23(a)(4), M.R.App.P., requires that the argument section of an appellant's brief contain citations to the pages of the record relied on. The statement of facts in Newman's brief contains a verbatim recitation of the contested portions of the prosecutor's closing argument, accompanied by accurate citations to the corresponding pages in the trial transcript. The argument section of Newman's brief refers to these same transcript excerpts, but does not cite to the transcript in each instance. While the argument section of Newman's brief could have been slightly more clear with additional transcript citations, we certainly are not required to "scour the transcript to find the alleged quotes," as the State asserts. As such, I conclude that Newman has satisfied the requirement of Rule 23(a)(4), M.R.App.P.
¶ 16 2. Should this Court review Newman's claims pursuant to the doctrine of plain error review?
¶ 17 Newman argues that the prosecutor's closing argument amounted to misconduct which denied her a fair trial and due process by violating her right to be presumed innocent and undermining the State's burden to prove every element of the charged offenses beyond a reasonable doubt. Acknowledging her trial counsel's failure to object to the prosecutor's closing argument, Newman requests that we employ the doctrine of plain error to review her contentions on appeal. The State argues that plain error review is inappropriate because Newman's claims are not supported by the record. As discussed hereinafter, I conclude that Newman's claims are, in fact, supported by the record.
¶ 18 Typically, the failure to timely object to an alleged impropriety in the district court precludes this Court from reviewing the issue on appeal. Section 46-20-104(2), MCA. However, the common law doctrine of plain error review provides that this Court may, in certain circumstances, review a claim of alleged error even where no contemporaneous objection was made in the district court. State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215 (overruled in part on other grounds by State v. Gallagher, 2001 MT 39, ¶ 21, 304 Mont. 215, ¶ 21, 19 P.3d 817, ¶ 21). As we have held:
[T]his Court may discretionarily review claimed errors that implicate a criminal defendant's fundamental constitutional rights, even if no contemporaneous objection is made and notwithstanding the inapplicability of the § 46-20-701(2), MCA, criteria, where failing to review the claimed error at issue may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process.
Finley, 276 Mont. at 137, 915 P.2d at 215. Plain error review is rooted in "our inherent power and paramount obligation to interpret Montana's Constitution and to protect the various rights set forth in that document." Finley, 276 Mont. at 137, 915 P.2d at 215. However, we do not lightly excuse the failure to raise a contemporaneous objection. Rather, we utilize plain error review sparingly, on a case-by-case basis. Finley, 276 Mont. at 138, 915 P.2d at 215.
¶ 19 "The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment" to the United States Constitution. Estelle v. Williams (1976), 425 U.S. 501, 503, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126. "The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice." Estelle, 425 U.S. at 503, 96 S.Ct. at 1692. "[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship (1970), 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368. Moreover, the standard of proof beyond a reasonable doubt "plays a vital role in the American scheme of criminal procedure" in that it "provides concrete substance for the presumption of innocence." In re Winship, 397 U.S. at 363, 90 S.Ct. at 1072.
¶ 20 In recognition of the foregoing principles, I conclude that the errors alleged by Newman implicate her fundamental constitutional right to due process under the Fourteenth Amendment to the United States Constitution, and Article II, Section 17, of the Montana Constitution. Further, I conclude that these alleged errors, if left unaddressed by this Court, would bring into question the fundamental fairness of Newman's trial. Accordingly, I conclude...
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...was untruthful—but distinguishing that "[i]solated" "argument of ‘why would she lie’ " would not have been improper). See also State v. Newman , 2005 MT 348, ¶¶ 28-30 and 32, 330 Mont. 160, 127 P.3d 374 (Nelson, J., specially concurring—prosecutor undermined defendant's presumption of innoc......
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