State v. Wagner

• Decision Date: 04 August 2009
• Docket Number: No. DA 08-0495.,DA 08-0495.
• Citation: 215 P.3d 20,352 Mont. 1,2009 MT 256
• Parties: STATE of Montana, Plaintiff and Appellee, v. Christopher William WAGNER, Defendant and Appellant.
• Court: Montana Supreme Court

215 P.3d 20

2009 MT 256

352 Mont. 1

STATE of Montana, Plaintiff and Appellee, v. Christopher William WAGNER, Defendant and Appellant.

No. DA 08-0495.

Supreme Court of Montana.

Submitted on Briefs June 9, 2009.

Decided August 4, 2009.

For Appellant: Jim Wheelis, Chief Appellate Defender; Koan Mercer, Assistant Appellate Defender, Helena, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General; Mark W. Mattioli, Assistant Attorney General, Helena, Montana, Marty Lambert, Gallatin County Attorney; Todd Whipple, Deputy County Attorney, Bozeman, Montana.

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 Christopher William Wagner (Wagner) appeals from a jury verdict, judgment and sentence of the Eighteenth Judicial District Court, Gallatin County, convicting him of attempted deliberate homicide with a weapon. We reverse and remand for a new trial.

¶ 2 The sole issue on appeal is whether the prosecutor's repeated comments at trial regarding statements Wagner made after invoking his Miranda rights created an inference of guilt that constituted plain error.

BACKGROUND

¶ 3 This case arises from a gun fight in which Wagner and Michael Peters (Peters) shot each other. Peters dated Melody Lark (Lark) from 1996 through 2000 in Bozeman, and they remained friends afterwards. Lark dated Wagner in Colorado for about four months in the summer of 2004, and then after traveling for a few months, she lived with Wagner for about five months. The relationship deteriorated while they lived together. Lark began to fear Wagner because he was often angry, paranoid, under the influence of methamphetamine, shot guns around his property, and discussed harming himself or others. Eventually Lark ended the relationship and moved out.

¶ 4 Lark testified that Wagner assaulted her the evening of October 8, 2005, after their relationship had ended. Wagner approached her from behind and knocked her out. She woke up outside with her head and ears bleeding. She went inside, but Wagner was there and took her phones away when she tried to call for help. Wagner eventually agreed to take her to a friend's house. Lark was later diagnosed with a skull fracture and traumatic brain injury. The doctor reported that her head injury was caused by an instrument hitting her head three or more times. Peters flew to Denver to visit Lark in the hospital following the assault.

¶ 5 The State of Colorado filed felony assault charges against Wagner. While the charges were pending, Wagner was released on bail with a GPS tracker around his ankle. Wagner removed the GPS tracker and fled Colorado.

¶ 6 Wagner came to Montana where he went by the name Curt Warren (and other aliases) and told people that his pregnant wife had died in a car accident. In early January 2007, Wagner hired a private investigator to find Peters' address. The investigator provided three addresses in Bozeman. About January 11, 2007, Wagner went looking for Peters at his home. Peters' father, John, answered the door and told Wagner that Peters was not home. Wagner told John to tell Peters that his friend, Jim, was passing through town. When John asked where he was from, Wagner hesitated before replying Kalispell. John thought that it was unusual that the man, who looked like a vagrant, had walked to his house on a very cold day. Later John recounted the incident to Peters, who did not know a Jim from Kalispell. Peters became concerned that the visitor was Wagner. Peters was afraid due to Wagner's attack on Lark and a previous assault when Wagner had beaten and stabbed an ex-girlfriend's boyfriend. Peters renewed his concealed weapons permit and asked Lark to email him a picture of Wagner. Peters' father could not positively confirm from the picture whether the man who had visited was Wagner.

¶ 7 On January 17, 2007, Peters left his house around noon. As he started to drive away in his truck, Peters noticed a person walking down the street towards him. The man flagged Peters down and he rolled down the window to talk. The man asked Peters if he had seen a little white dog, but then pulled a gun on him. Peters figured that the man must be Wagner, whom he viewed as a "deadly person" intending to kill or torture him. Wagner ordered Peters to scoot over. Peters began to do so, but when Wagner grabbed the door handle, Peters shot at him. Peters fired two shots, which hit Wagner in the chest, before his gun jammed. Wagner then fired at Peters, hitting him three times: grazing his cheek, piercing his abdomen, and puncturing his hand. Peters escaped out the passenger door and ran into his house. His father called 911, but Wagner had fled by the time the police arrived. Peters willingly told the police what occurred.

¶ 8 At trial, Wagner provided a different version of events. Wagner claims he sought Peters in order to help him reconnect with Lark. Wagner testified that he returned to Peters' house to find out whether the older man he had spoken with before could give him any information on how to contact Peters. As he approached the house, Wagner noticed a truck back out of the driveway and drive towards him. Wagner claimed he gave a little wave to the driver and the truck stopped. According to Wagner, the driver then pointed a gun out the window and fired two shots at him. Wagner testified that when he shot back he was attempting to shoot the gun out of Peters' hand.

¶ 9 Although Wagner had been shot twice, he was able to walk away from the scene. Later Wagner asked a stranger for a ride. Wagner told the man that he had injured himself falling on the ice. Wagner got a ride to the Filling Station and then walked to a storage unit he had rented nearby. From there, Wagner called a friend who agreed to pick him up. Wagner told his friend that he had been stabbed in a bar that morning. Wagner tended to his wounds at his friend's apartment and then called another friend to pick him up. Wagner stayed with his friend in Ennis for a few days, then got a ride to Greybull, Wyoming, where he stayed with another acquaintance. Wagner was arrested in Greybull a few days later on January 25, 2007.

¶ 10 Detectives Cindy Crawford and Tom Pallach of the Gallatin County Sheriff's Office traveled to Greybull to interview Wagner as part of their investigation of the shooting. The detectives met with Wagner on January 26, 2007. After advising Wagner of his Miranda rights, Wagner indicated that he wanted to speak to a lawyer, saying that he didn't want to dig himself a deeper hole.

¶ 11 The prosecutor referenced this comment four times at Wagner's trial in May 2008. In his opening statement, the prosecutor said, "On January 26th, 2007, upon being interviewed by the police detectives, and asked whether he'd like to make a comment, he simply says, I don't want to dig myself a deeper hole." Then during the State's case-in-chief, the prosecutor asked Detective Crawford on direct examination whether Wagner made any statements or admissions after being advised of his Miranda rights. Crawford replied, "Mr. Wagner stated something to the effect where he wanted to speak to an attorney first and he said, don't want to dig myself a deeper hole." Later the prosecutor ended his cross-examination of Wagner by questioning him regarding the statement:

Q. Okay. When you were arrested, you told the Detectives that you didn't want to talk to `em and dig yourself a deeper hole, right?

A. Yes.

Q. And today you explained that as nothing I was going to say was going to help you.

A. Yeah, there was no point of saying anything.

Q. No point in telling the story back in January of 2007?

A. It wasn't going to help change anything.

Q. So, 17 months, or 16 months later, this is when you tell this story today?

A. Yes.

Finally, in his closing argument, the prosecutor stated:

Somebody was right and somebody was wrong. So you have to choose who you believe. Do you believe Michael Peters who, from the very beginning, said, yeah, I shot this guy. I shot him first, and here's why. Or, do you believe the Defendant, who doesn't want to dig himself a deeper hole.

Wagner's counsel did not object to these repeated prosecutorial comments.

STANDARD OF REVIEW

¶ 12 This Court may discretionarily review claimed errors that implicate a criminal defendant's fundamental constitutional rights, even if no contemporaneous objection was made, "where failing to review the claimed error 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." State v. Godfrey, 2004 MT 197, ¶ 22, 322 Mont. 254, 95 P.3d 166 (citing State v. Finley, 276 Mont. 126, 137, 915 P.2d 208, 215 (1996), overruled on other grounds by State v. Gallagher, 2001 MT 39, 304 Mont. 215, 19 P.3d 817). We use our inherent power of common law plain error review sparingly. Godfrey, ¶ 22.

DISCUSSION

¶ 13 Whether the prosecutor's repeated comments at trial regarding statements Wagner made after invoking his Miranda rights created an inference of guilt that constituted plain error.

¶ 14 Since Wagner did not object to the prosecutor's repeated comments at trial, our review requires application of the common law plain error doctrine. Wagner argues that the prosecutor's comments "leave unsettled the fundamental fairness of the trial" by impermissibly using Wagner's invocation of Miranda rights against him to attack his credibility and create an inference of guilt. Thus, Wagner claims that the State's repeated and deliberate use of his invocation of the right to silence warrants reversal under plain error review. We agree.

¶ 15 The United States Constitution's privilege against self-incrimination and right to due process prohibit the State from using a defendant's invocation of Miranda rights against him at trial. U.S. Const. amends. V, XIV. The United States Supreme Court described the privilege against self-incrimination as "the...