State v. Sullivan
| Decision Date | 29 November 1996 |
| Docket Number | No. 96-009,96-009 |
| Citation | 927 P.2d 1033,280 Mont. 25 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Shannon Lee SULLIVAN, a/k/a Shannon Lee Marshno, Defendant and Appellant. |
| Court | Montana Supreme Court |
Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General, Helena, Christine A. Cooke, County Attorney; Curtis Bevolden, Deputy County Attorney, Hardin, for respondent.
Shannon Sullivan appeals from a jury verdict, judgment and sentence of the Thirteenth Judicial District, Big Horn County, convicting him of deliberate homicide. We reverse and remand.
Did the prosecutor violate Sullivan's right to due process and privilege against self-incrimination by commenting on Sullivan's post-Miranda silence and is this issue reviewable under the common law plain error doctrine?
This case arises from events that occurred in Hardin, Montana, on March 20 and 21, 1995. On the afternoon of March 20, Sullivan and the victim, Kevin Lessard (Kevin), stopped at the residence of Ella Deputee, Kevin's mother. Kevin, age seventeen, attended school in Billings, Montana, and was home visiting his family. Sullivan, age twenty-two, was a friend of the Lessards and lived in Leroy Lessard's trailer.
Sullivan and Kevin went fishing with Leroy (Kevin's father), Rowena Lessard (Kevin's sister), Terry Little and Gloria Little Head. Kevin returned to his mother's house for dinner. Ella Deputee recalled that Kevin was in a hurry to return to Leroy's trailer and that he left her house around 8:30 or 9:00 p.m.
Leroy had a .22 magnum pistol in his trailer. According to Leroy, Sullivan was familiar with it. Sullivan and Kevin played with the pistol often, twirling it and trying to act like gunslingers. Occasionally, the pistol was loaded when they played with it. Leroy did not see the .22 on the night of the shooting. However, Rowena Lessard (Rowena) testified that around 9:00 p.m., she saw Kevin place the .22 near the television.
At approximately 10:00 p.m., Sullivan, Kevin, Rowena, Terry, and Gloria left Leroy's trailer to go into town. At 2:00 a.m., they returned to the trailer. There, Leroy visited with a friend, Raymond Holmes. Terry went outside to sleep in his truck, and Gloria went to the back bedroom of the trailer to sleep. According to both Leroy and Rowena, Sullivan and Kevin appeared to be getting along. The two went to the front bedroom, where Sullivan lived, to listen to music. At about 5:00 a.m., Kevin told Leroy that he was going to sleep, and returned to the front bedroom.
Sometime later, Leroy's conversation with Raymond was interrupted by the sound of a gun discharging. Leroy rushed to the back of the trailer where he believed the sound had originated. He heard Rowena call out Kevin's name. Rowena had been awakened by the sound of a gunshot and hurried to the front bedroom where she found Kevin. Leroy ran into the front bedroom where he saw Kevin lying on the bed. He picked Kevin up and held him for several seconds before he ran to a neighbor's house to call for help. Leroy returned to his trailer until the police arrived. At approximately 6:00 a.m. Kevin was pronounced dead by the Big Horn County Coroner.
Dr. Kenneth Mueller performed an autopsy on Kevin. In his opinion, the cause of Kevin's death was a close-range penetrating small-caliber gunshot wound to the head. Dr. Mueller opined that the gun was between six and twelve inches away from Kevin when it was discharged, and the presence of powder burns on Kevin's eyelids suggested that his eyes were closed when the gun was discharged.
Rowena and Leroy did not see Sullivan after they heard the gun discharge. Immediately after the shooting, no one except Sullivan left Leroy's trailer. The back door to the trailer, which had been closed earlier, was open. Leroy did not see the .22 after the shooting.
Approximately twenty-four hours later, Sullivan appeared at the home of Ralph Turns Plenty. Turns Plenty knew there was something wrong because the tribal police had been to his residence on the previous day looking for Sullivan. Turns Plenty advised Sullivan to turn himself in to the police. Sullivan agreed, and one of Turns Plenty's sons contacted the Big Horn County Sheriff's Office. Big Horn County Sheriff Larson Medicinehorse arrived, picked up Sullivan for questioning, and took him to his office. There, Big Horn County Chief Detective John Shaw spoke with Sullivan. He advised Sullivan of his Miranda rights and asked if he would be willing to make a statement. Sullivan refused. Shaw stopped the interview, excused himself, and left.
Sullivan was released and spent the night at the Turns Plenty residence. The next day, Sheriff Medicinehorse, accompanied by Bureau of Indian Affairs Criminal Investigator Wesley Stops, returned to the Turns Plenty residence. Stops showed Sullivan the waiver of rights form that he had signed one day earlier. Stops asked Sullivan if he understood his Miranda rights, and Sullivan said that he did. Stops then conducted a tape-recorded interview.
Sullivan explained how the shooting occurred. According to Sullivan, he and Kevin returned to Leroy's trailer and entered the front bedroom. He picked up Kevin's pistol, and while talking to Kevin, twirled it. Sullivan was standing at the foot of the bed, and Kevin was lying on it. The pistol went off, shooting Kevin. Sullivan said that he stood and looked at Kevin for several seconds but then became afraid and ran out of the trailer.
After leaving, he threw the pistol into a dumpster. Sullivan tried to describe the location of the dumpster to Stops. However, despite the description and a police search, the pistol was never found.
The State of Montana charged Sullivan by information with deliberate homicide. Sullivan pleaded not guilty. At trial, he did not dispute the State's claim that he shot and killed Kevin, but maintained that the shooting was accidental. The defense argued that Sullivan was guilty of negligent homicide rather than deliberate homicide. Sullivan did not testify.
In his opening statement, the prosecutor informed the jury that the shooting was deliberate. He explained how Sullivan fled immediately after the shooting, disposed of the murder weapon, and hid for twenty-four hours before turning himself in to authorities. Then he informed the jury that Sullivan refused to give a statement after being advised of his Miranda rights. "The defendant, when he did turn himself in, refused to give a statement at first when advised of his rights by Chief Detective John Shaw."
During the defense's opening statement, counsel explained,
Detective Shaw brought [Sullivan] down to the police department and read him his rights and asked him if he would give a statement, whereupon Mr. Sullivan became frightened again and wouldn't say--he didn't want to--he didn't want to talk at that point.
During the State's case-in-chief, two witnesses testified concerning Sullivan's silence. The prosecutor questioned Detective Shaw about the conversion he had with Sullivan on the first day he was brought to the sheriff's office and was advised of his Miranda rights.
Q. The first time [Sullivan] came to the Sheriff's office did you speak with him?
A. Yes, I did.
Q. What was the extent of that conversation?
A. Very brief. I read an adult waiver form to him, essentially advising him of his Miranda rights. I asked him if he would be willing to speak with me and give a statement at that time. He refused. I excused myself and left.
Later in the State's case-in-chief, the prosecutor asked Sheriff Medicinehorse if Sullivan had said anything to him:
Q. Did he say anything to you when you brought him in that first day?
A. No, he did not.
Q. Sat quietly during the ride?
A. Yes.
Q. He didn't produce a handgun for you at any time, did he?
A. No, he did not.
During his closing argument, the prosecutor commented twice to the all-female jury on Sullivan's failure to give a statement to the police after the shooting. He stated:
I suggest, based on your common experience as ladies, that if you commit an accident, particularly if someone had committed an accident as horrible and as tragic as this particular accident, wouldn't you want to tell somebody it was an accident, how sorry you were, that you didn't mean to do it? Would you get rid of the gun? Dispose of it? [Emphasis added.]
Later, in closing argument, the prosecutor argued, Defense counsel did not object to any of the prosecutor's comments or to the testimony elicited during the State's case-in-chief.
The District Court instructed the jury on both deliberate and negligent homicide. The jury returned a verdict finding Sullivan guilty of deliberate homicide. The District Court sentenced Sullivan to fifty years at the Montana State Prison, with ten additional years for the use of a weapon.
Sullivan appeals.
Did the prosecutor violate Sullivan's right to due process and privilege against self-incrimination by commenting on Sullivan's post-Miranda silence and is this issue reviewable under the common law plain error doctrine?
Sullivan argues that his right to due process and privilege against self-incrimination were violated when the prosecutor commented in his opening statement and closing argument, and elicited testimony during the State's case-in-chief, that Sullivan declined to make a statement after being advised of his Miranda rights. The State responds, and Sullivan concedes, that defense counsel failed to make a timely objection to these alleged errors. The State argues that Sullivan's claims are barred from...
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State v. Miller
...a defendant's post-arrest silence before a Miranda advisory even if the defendant does not testify at trial. State v. Sullivan , 280 Mont. 25, 33-34, 927 P.2d 1033, 1038-39 (1996) (holding that state permissibly elicited case-in-chief testimony and made closing argument reference to non-tes......
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State v. Miller
... ... silent. Doyle , 426 U.S. at 617-18, 96 S.Ct. at ... [ 13 ] The prosecutor may similarly elicit ... testimony and then comment on a defendant's post-arrest ... silence before a Miranda advisory even if the ... defendant does not testify at trial. State v ... Sullivan , 280 Mont. 25, 33-34, 927 P.2d 1033, 1038-39 ... (1996) (holding that state permissibly elicited case-in-chief ... testimony and made closing argument reference to ... non-testifying defendant's post-arrest but ... pre- Miranda silence on way to police station but ... contrarily holding that ... ...
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State v. Newman
...remarks by the prosecution — requests plain error review pursuant to Finley, our seminal case on that subject, and State v. Sullivan (1996), 280 Mont. 25, 927 P.2d 1033. We have stated on numerous occasions that such review should be exercised only sparingly. See, e.g., State v. Gray, 2004 ......
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State Of Mont. v. Haagenson
...error rule, we must decide whether the errors alleged by Sullivan implicate fundamental constitutional rights.” State v. Sullivan, 280 Mont. 25, 32, 927 P.2d 1033, 1037. In other words, we frequently review the matter to determine whether the alleged error implicates a fundamental right, an......