State v. Reichmand

• Decision Date: 27 October 2010
• Docket Number: No. DA 09-0057.,DA 09-0057.
• Citation: 358 Mont. 68,243 P.3d 423,2010 MT 228
• Parties: STATE of Montana, Plaintiff and Appellee, v. Dallas Edward REICHMAND, Defendant and Appellant.
• Court: Montana Supreme Court

243 P.3d 423

358 Mont. 68

2010 MT 228

STATE of Montana, Plaintiff and Appellee,

v.Dallas Edward REICHMAND, Defendant and Appellant.

No. DA 09-0057.

Supreme Court of Montana.

Submitted on Briefs March 2, 2010.

Decided Oct. 27, 2010.

For Appellant: Joslyn Hunt, Chief Appellate Defender; Jennifer Hurley, Legal Intern, Helena, Montana.

For Appellee: Steve Bullock, Montana Attorney General; John Paulson, Assistant Attorney General, Helena, Montana.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Dallas Edward Reichmand (Reichmand) was convicted after a jury trial in March 2008 of two counts of Criminal Distribution of Dangerous Drugs, a felony in violation of § 45-9-101, MCA. Reichmand appeals from the conviction, from the restitution condition of his sentence, and from the District Court's denial of his post-trial motion to set aside the verdict.

¶ 2 On appeal we consider whether our recent decision in State v. Goetz, 2008 MT 296, 345 Mont. 421, 191 P.3d 489, should be retroactively applied to Reichmand's direct appeal and, if so, whether Reichmand's conviction should be reversed.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 In August 2007, officers working with the Southwest Montana Drug Task Force began investigating whether Reichmand was selling drugs from his residence in Butte, Montana. Officers recruited Terry Chor to act as an undercover agent to make drug purchases. On August 21, 2007, Chor arranged to make a drug buy from Reichmand. Agents searched Chor and his vehicle, gave him money to make the buy, and equipped him with a transmitter that allowed agents off-site to hear and record Chor's conversations. On August 24, 2007, Chor again bought ten morphine tablets for $35 each. Agents listened to and recorded Chor's conversations during both transactions. Chor and the listening agents testified at the March 2008 trial. The recordings were played to the jury several times during the course of the trial. Theofficers did not obtain a search warrant authorizing use of the electronic monitoring. Reichmand did not testify or present any other evidence at trial. His defense centered on his contention that he was misidentified as the person who sold drugs to Chor.

¶ 4 A jury found Reichmand guilty of two counts of felony Criminal Distribution of Dangerous Drugs. On September 5, 2008—after the verdict but two weeks before the scheduled sentencing hearing—Reichmand filed a motion to set aside the jury verdict based on our decision in Goetz, which was announced on August 20, 2008. The parties submitted briefs on the motion, including supplemental briefs addressing this Court's latest decision in State v. Foster-DeBerry, 2008 MT 397, 347 Mont. 164, 197 P.3d 1004.

¶ 5 On December 3, 2008, the District Court denied the motion, relying on Foster-DeBerry, in which the defendant's appeal was pending when Goetz was decided. Foster-DeBerry asked this Court to remand her case so that she could present a Goetz-based challenge to the warrantless recording of her conversations during a police investigation. We concluded that she was not entitled to the benefits of retroactive application of Goetz because her case was not "similarlysituated" for purposes of a newly-announced rule. Id. at ¶ 8. Foster-DeBerry defined "similarly situated" as having raised the issue addressed by the new rule at the trial court level, thereby preserving it for appeal. Id. Utilizing this reasoning from Foster-DeBerry, the District Court concluded that Reichmand had failed to assert a Goetz-type claim prior to or during trial and was therefore precluded from arguing that he is "similarly situated" to the defendant in Goetz. Reichmand now appeals.

STANDARD OF REVIEW

¶ 6 Reichmand's appeal requires us to consider the retroactivity of State v. Goetz, which is a question of law. We review questions of law de novo. In re Fair Hearing of Hanna, 2010 MT 38, ¶ 13, 355 Mont. 236, 227 P.3d 596.

DISCUSSION

¶ 7 I. Did the District Court err in not granting Reichmand's motion for a new trial based on the retroactive application of the holding in State v. Goetz?

A. Appellate review.

¶ 8 As an initial matter, we pause to consider our ability to review this issue on appeal. Questions of retroactivity may implicate anumber of doctrines, such as plain error review, which allow appellate courts to consider issues that were not presented in the lower court. Given the requirement in our statutes that the defendant must object to an alleged error "at trial" in order to preserve his rights to appeal, it would seem that we might need to rely on one of these doctrines to review the present case. Reichmand objected in the lower court several months after the verdict was pronounced, and the language of § 46-20-701(2)(a) and § 46-20-104(2), MCA, greatly restricts appellate review unless objections are made "at the time of trial" or "during trial," respectively. We interpret "trial" here, however, to encompass the entire proceeding in the lower court, and thus may proceed directly to evaluating the retroactivity of Goetz.

¶ 9 This interpretation of "at trial" is supported by the underlying rationale of these statutes—that it is "fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider." State v. Gomez, 2007 MT 111, ¶ 21, 337 Mont. 219, 158 P.3d 442, quoting State v. Martinez, 2003 MT 65, ¶ 17, 314 Mont. 434, 67 P.3d 207. Where the trial court was given an opportunity to rule on the issue, as here, then the objection has been made "at trial" and the defendant has properly preserved the issue for review by this Court. State v. Waters, 1999 MT 229, ¶ 24, 296 Mont. 101, 987 P.2d 1142 (interpreting § 46-20-104(2), MCA, as extending through sentencing); see also Commission Comments to § 46-20-104, MCA, at 1067 (2010 Annotations) (emphasizing that the appellate court has the authority to "decide all questions raised by the entire proceeding, below").¹

¶ 10 Objecting below at trial is a general requirement of appellateprocedure. The District Court ruled that Reichmand was precluded from the retroactive application of Goetz because he failed to object at trial andthus he was not "similarly situated" under the rule from Foster-DeBerry. As mentioned above, Foster-DeBerry defined "similarly situated" as having raised the issue addressed by the new rule at the trial court level, thereby preserving it for appeal. Although we conclude that Reichmand objected "at trial" below, since the District Court based its conclusion on the "similarly situated" standard in Foster-DeBerry, we take this opportunity to address Foster-DeBerry's place in our retroactivity jurisprudence.

¶ 11 In previous Goetz retroactivity decisions, we have interpreted "similarly situated" to be a retroactivity-specific requirement. We first addressed the retroactivity of Goetz in Foster-DeBerry, where we relied on State v. Zivcic, 229 Wis.2d 119, 124-25, 598 N.W.2d 565, 568 (Wis.App.1999), for the proposition that "similarly situated" means having raised the same objection below. The Wisconsin court's definition of "similarly situated" in Zivcic was itself based on an invocation of the U.S. Supreme Court's decision in Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). On closer examination, however, Griffith does not appear to support the Wisconsin court's position, and it becomes clear that both Griffith and Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), used "similarly situated" only to justify retroactive and prospective application of new rules of procedure. The majority in Griffith used "similarly situated" to explain why the Court's past policy of excluding "clear break" new rules from retroactive application was inequitable. In Teague, the Court used "similarly situated" to describe how defendants who were still in the same direct appeals pipeline as the defendant in whose case the new rule was announced were denied the benefit of the new rule once their own cases reached the Supreme Court. These usages make clear that the Court's use of the phrase "similarly situated" is nothing more than a compelling rationale for retroactive application of new rules, rather than limiting new rules to prospective application after the decision is handed down. Thus, it does not appear that there is any convincing support in either the federal rules of retroactivity we have adopted, or in Montana's own subsequent retroactivity jurisprudence, for interpreting "similarly situated" as having objected below. We therefore overrule our decisions in Foster-DeBerry and State v. Foston, 2009 MT 191, 351 Mont. 85, 209 P.3d 262, insofar as they require an appellant—within the rules of retroactivity—to have raised a Goetz-type objection at trial in order for Goetz to apply retroactively.

¶ 12 In conclusion, there is a general rule of appellate procedure that in order to preserve an issue for appeal, the appellant must have raised the issue "at trial." In the context of retroactivity jurisprudence, however, there is no independent requirement that the appellant have objected below, as Foster-DeBerry suggests. In order to be " similarly situated" for purposes of retroactivity, the defendant merely has to show that his case is pending on direct review or not yet final.

B. The retroactivity of Goetz.

¶ 13 We next review the District Court's ruling that Reichmand was not entitled to a new trial as a result of the retroactive application of Goetz. This is a question of law, which we review de novo. Retroactivity jurisprudence in Montana is closely intertwined with federal law. The U.S. Supreme Court recently held that each state has the right to craft its own unique retroactivity jurisprudence, using federal requirements as a floor. Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008). That is, the U.S. Supreme Court's retroactivity analysis for federal constitutional errors is binding upon the states...