State v. Pizzichiello, 97-461.

• Citation: 983 P.2d 888,1999 MT 123
• Decision Date: 01 June 1999
• Docket Number: No. 97-461.,97-461.
• Parties: STATE of Montana, Plaintiff/Respondent, v. Larry John PIZZICHIELLO, Defendant/Appellant.
• Court: United States State Supreme Court of Montana

983 P.2d 888

1999 MT 123

STATE of Montana, Plaintiff/Respondent, v. Larry John PIZZICHIELLO, Defendant/Appellant.

No. 97-461.

Supreme Court of Montana.

Submitted on Briefs April 22, 1999.

Decided June 1, 1999.

Amy N. Guth, Libby, Montana, For Appellant.

Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena, Montana; Joseph E. Thaggard, Special Deputy Lincoln County Attorney, Helena, Montana, For Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 This is an appeal by the Defendant, Larry John Pizzichiello(Pizzichiello), from his conviction in the District Court for the Nineteenth Judicial District, Lincoln County of tampering with physical evidence, robbery (two counts) and deliberate homicide, all felonies. We reverse Pizzichiello's convictions and remand for further proceedings consistent with this opinion and for a new trial.

Background

¶ 2 Because we are remanding for a new trial, our recitation of the facts and procedural background of this case will be limited to that necessary to address the dispositive legal issue.

¶ 3 The charges filed against Pizzichiello and of which he was ultimately convicted resulted from his alleged involvement in the death of Brian Carreiro (Carreiro), a Las Vegas, Nevada resident, who disappeared while on a hunting trip in Lincoln County, Montana in August 1995. An investigation into Carreiro's disappearance by Las Vegas authorities implicated Pizzichiello and John Lanny Lynch, both of whom accompanied Carreiro from Las Vegas to Montana on the hunting trip. After some four months of investigation by the Las Vegas Metropolitan Police, the case was handed over to Montana authorities for prosecution. Ultimately Pizzichiello and Lynch were charged with Carreiro's death, and the two were tried separately.

¶ 4 As part of the Nevada investigation, the Clark County (Nevada) District Attorney applied for and received judicial authorization from the county district court to intercept wire or oral communications made from the residence telephones of Lynch and Pizzichiello. As a result of these wiretaps, the Las Vegas investigators intercepted and recorded conversations between December 7, 1995, and January 11, 1996. The Nevada investigation was discontinued on January 9, 1996, once it was determined that Carreiro's death occurred in Montana. The Las Vegas police continued the electronic monitoring for sometime thereafter, however.

¶ 5 In his Montana prosecution, by a pretrial motion to suppress, Lynch objected to the State's use of this wiretap evidence and certain derivative evidence flowing therefrom. Without hearing, the trial court denied Lynch's motion to suppress. At his trial, the State offered the wiretap evidence and the testimony of Gary Knight and Tony Guarino—testimony which Lynch contended was fruit of the wiretap evidence—against Lynch. Lynch was convicted. State v. Lynch, 1998 MT 308, ¶¶ 5-7, 292 Mont. 144, ¶¶ 5-7, 969 P.2d 920, ¶¶ 5-7, 55 St.Rep. 1278, ¶¶ 5-7.

¶ 6 On appeal we reversed Lynch's conviction holding that the District Court erred as a matter of law in denying Lynch's motion to suppress the Nevada wiretap evidence and evidence flowing therefrom and in admitting such evidence at trial. As a consequence, we remanded Lynch's case for further proceedings consistent with our opinion and for a new trial. Lynch, ¶ 29.

¶ 7 In Pizzichiello's case, although he did move pretrial to suppress the wiretap evidence and testimony of Gary Knight and Tony Guarino, he concedes that his trial counsel did not object to the admission of the wiretap evidence upon the specific grounds which he now raises for the first time on appeal. Moreover, it is on the basis of one of these arguments—i.e., that Montana evidentiary law applies to and prohibits the admission of the Nevada wiretap evidence in Montana court proceedings—that we reversed Lynch's conviction. See Lynch, ¶¶ 14-25. Notwithstanding his admitted failure to preserve this argument in the trial court, Pizzichiello, nonetheless, requests this Court to review the issue of the admission of wiretap evidence under the common law plain error doctrine and to reverse his convictions on the basis of our decision in Lynch.

Issue

¶ 8 The sole issue which we address is whether we should review, for the first time on appeal, Pizzichiello's claim that the District Court erroneously admitted wiretap evidence in contravention of Montana law.

Discussion

¶ 9 In State v. Finley (1996), 276 Mont. 126, 915 P.2d 208, we discussed at length the common law plain error doctrine. Except in certain circumstances not at issue here, §§ 46-20-104(2) and 46-20-701, MCA, preclude appellate review of claimed errors not properly preserved in the trial court. Nonetheless, in Finley we determined that plain error review was inherent in the appellate process itself and correlative to this Court's power and paramount obligation to interpret the constitution and to protect the individual rights set forth therein. Finley, 276 Mont. at 134-135, 915 P.2d at 213. Specifically we held that

this 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. In adopting this rule we also stated that we would "henceforth use our inherent power of common law plain error review sparingly, on a case-by-case basis, and [that we would] invoke that doctrine only in the class of cases aforementioned." Finley, 276 Mont. at 138, 915 P.2d at 215.

¶ 10 In arguing against our undertaking plain error review in the case sub judice, the State contends that, while we have been invited to invoke the doctrine on fourteen occasions since Finley was handed down, in only three of those cases did we conclude that there was a sufficient basis to warrant application of our inherent power of plain error review. In each of these three cases,¹ according to the State, a fundamental constitutional right was at stake and, arguably, failure to review would have resulted in a manifest miscarriage of justice, would have left unsettled the question of the fundamental fairness of the trial proceedings, or would have compromised the integrity of the judicial process. The State maintains that, here, Pizzichiello has failed to identify which of his constitutional rights are implicated by the District Court's admission of the wiretap evidence.

¶ 11 We agree with the State, that, to invoke our power of review under Finley, Pizzichiello must initially demonstrate that a fundamental right constitutionally guaranteed to him was implicated by the plain error which he claims. Finley, 276 Mont. at 137, 915 P.2d at 215. We disagree, however, with the State's contention that Pizzichiello failed in his burden to do so.

¶ 12 In the District Court, Pizzichiello moved pretrial to suppress all evidence of the communications electronically intercepted by the Nevada authorities as part of its investigation. In support of his motion Pizzichiello filed a lengthy brief, citing both federal and state authorities. In his motion and brief, Pizzichiello vigorously argued, among other things, that the Nevada wiretaps violated his right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution; that any statements made by him or Lynch during the course of the wiretapped conversations were involuntary and therefore obtained in violation of Pizzichiello's Fifth and Fourteenth Amendment rights; that any statements made by him to Lieutenant Donald Bernall of the Lincoln County Sheriff's Department were made in violation of his Sixth Amendment right to counsel; and that evidence derivative of the wiretaps should also be suppressed under the "fruit of the poisonous tree" doctrine. The State objected to Pizzichiello's motion with its own lengthy brief citing authorities. Pizzichiello filed a reply brief countering the State's. Ultimately and on the basis of these briefs, the trial court entered a written decision denying Pizzichiello's motion except as to intercepted conversations between him and his counsel and as to his remarks to officer Bernall made after invoking his right to counsel.

¶ 13 In his opening brief on appeal, Pizzichiello argues the theories rejected by the trial court and, as noted above, he also raises for the first time various arguments made by Lynch in his motion to suppress—one of which proved successful in that case.

¶ 14 On this record, we cannot conclude, as the State maintains we should, that Pizzichiello has failed to demonstrate that a fundamental right constitutionally guaranteed to him was implicated by the plain error which he claims. To the contrary, Pizzichiello argued in the trial court and argues to this Court on appeal that the Nevada wiretaps implicated his right to counsel and his right to remain silent. Both of these are fundamental constitutional rights. See Kimmelman v. Morrison (1986), 477 U.S. 365, 374, 106 S.Ct. 2574, 2582, 91 L.Ed.2d 305

: Campbell v. Wood (9th Cir.1994), 18 F.3d 662, 671. And, regardless that we decline to reach the merits of these arguments for reasons hereinafter set forth, we are satisfied that Pizzichiello has at least demonstrated that the admission of the wiretap and derivative evidence "implicated" these rights. Accordingly, we conclude that Pizzichiello has met the first prong of the Finley test—that a fundamental right constitutionally guaranteed to him was implicated by the plain error which he claims. Finley, 276 Mont. at 137,

915 P.2d at 215.

¶ 15 Next, Pizzichiello must show that our failing...