State v. Thompson ( 1993 )

NO. 92-468
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
ANTHONY J. THOMPSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
CO?JNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender's Office,
Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General: John Paulson,
Assistant Attorney General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney; Dale
Mrkich, Deputy Yellowstone County Attorney,
Billings, Montana
Submitted on Briefs: March 11, 1993
Decided: June 10, 1993
File
Justice John Conway Harrison delivered the Opinion of the Court.
Anthony Thompson (Thompson) was convicted of criminal sale of
dangerous drugs, a felony, after a jury trial in the Thirteenth
Judicial District Court, Yellowstone County, the Honorable William
J. Speare presiding. Thompson appeals on the grounds that District
Court error and prosecutor misconduct deprived him of his right to
a fair trial. We affirm the conviction.
On August 21, 1991, Thompson was charged by information
alleging that between July 29, 1991, and August 2, 1991, Thompson
sold .5 grams of cocaine to a confidential informant working for
the Billings, Montana, Police Department. This 'icontrolledbuyw
was arranged by the police in the following manner.
The informant was equipped with a body wire transmitter and
given $60 in bills that had been photocopied to record the serial
nu&ers. HS -.-- +->---
cahc'l cu
A - a vacant lot behind the Arcade Bar on
Minnesota Avenue in Billings and instructed to approach a group of
people in the vacant lot. A police detective in a nearby parked
car observed the informant's movements and monitored his
conversations on the transmitter. Another police detective was
stationed in a nearby alley where he could observe the transaction
without being seen.
The informant asked one of the men if he could sell him a
quarter pound of marijuana. The man said it would take him a while
to get it, and left the area. The informant was then approached by
Thompson, who offered to sell him cocaine. Thompson and the
informant got into Thompson's car, a white four-door Cadillac
2
sedan. Four bags of a white substance were arranged on the front
seat. The informant selected a bay, paid Thompson $50, and
returned to the police detective's car. The detective recovered
the remaining $10 of the police department's money and tested the
white substance with a Valtox kit. It tested positive for cocaine;
this result later was confirmed by the Montana State Crime
Laboratory in Missoula.
One of the police detectives observed the entire transaction
through binoculars. He also heard the informant's conversations
with Thompson and the man who agreed to sell him marijuana. Both
detectives had been acquainted with Thompson previously and
recognized his voice and his car. A license plate check confirmed
that Thompson owned the car.
The police detectives obtained a warrant and searched
Thompson's home the next day, but found neither the money the
informant had used to buy the cocaine nor any other incriminating
evidence. Although the detectives had kept no record of the date
on which the informant had made the controlled buy, overtime
reported on their time sheets indicated that it was on August 2,
1991. The search warrant was executed on August 3, 1991.
Thompson was formally charged on August 13 and arrested on
August 17, 1991. At his first court appearance on August 21, 1991,
he pled not guilty to the charge of criminal sale of dangerous
drugs. Counsel was appointed for him. Thompson later offered to
retain the appointed attorney, Joseph Zavaletta, on a private basis
and signed an agreement to pay him $1,000 plus $500 if the case
went to trial. Xe paid Mr. Zavaletta $700 in February and March,
1992, but failed to complete the payments. Mr. Zavaletta
represented Thompson at his trial in May but withdrew in July after
Thompson told him that he intended to appeal his conviction based
on ineffective assistance of counsel.
At his trial on May 26-27, 1992, Thompson presented an alibi
defense based entirely on the testimony of a friend, Judalon
Roundface. Thompson did not testify.
Roundface testified that during the week of July 29 through
August 2, 1991, she had been Thompson's constant companion, driving
his car and accompanying him wherever he went. He had asked her to
help him, she said, because he had been beaten up a few days before
and his face was so badly swollen that he could not see to drive.
She picked him up at his home in the morning, Monday through
Wednesday of that week and again on Friday, and drove him wherever
he wanted to go. She kept the car overnight all week.
On Friday, August 2, Roundface testified, she picked Thompson
up "at exactly 10:15." She and Thompson washed clothes at a
laundromat that day, and then went to the Arcade Bar, arriving at
four in the afternoon. Thompson remained at the Arcade Bar until
it closed, Roundface said, while she left for a time to play the
machines at another bar. She said that Thompson's car remained in
a parking lot on Minnesota Avenue, north of the bar, and that she
kept the keys until the end of that evening. By then, Thompson was
feeling well enough to drive, so he left her at the bar and drove
home himself.
The jury returned a verdict of guilty of criminal sale of
dangerous drugs after about six hours of deliberation on May 27,
1992. Thompson raises the following issues on appeal:
1. Whether the District Court erred in holding conferences
with counsel to discuss inquiries from the jury during its
deliberations, without requiring Thompson's presence.
2. Whether the prosecutor, in his closing remarks, appealed
improperly to the jury's sympathy and prejudice.
Thompson is barred from raising these issues, however, because
he did not object to the alleged errors during trial.
Thompson acknowledges that defense counsel failed to object,
during the trial, to the court's handling of the jury inquiries or
to the prosecutor's closing remarks. Section 46-20-L04(2), MCA
(emphasis added), provides that:
Upon appeal from a judgment, the court may review the
verdict or decision and any alleged error objected to
which involves the merits or necessarily affects the
judgment. Failure to make a timelv obiection durinq
t r i = l ,:
,,
LA
,
.
-
+ *..*-- a
,v,,,LILULr;, waive~ o ' the objection except as
r
provided in 46-20-701f21.
The exceptions in 46-20-701(2), MCA, require a defendant to
establish first, that the alleged error was prejudicial as to his
guilt or punishment; and second, that one of three conditions has
been met. Thompson concedes that none of the three statutory
conditions apply to his situation, but he insists that under the
"plain error" doctrine this Court nevertheless may exercise its
power of discretionary review. As a general rule, this Court will
not entertain issues not raised at trial, and if a defendant fails
to lodge a timely objection, he will not be heard on appeal. State
v. Wilkins (1987), 229 Mont. 78, 746 P.2d 588. General rules are
not without exception, however, an& in Ralldorson v. Halldorson
(1977), 175 Mont. 170, 573 P.2d 169, we recognized that appellate
courts have a duty to assure that the substantial rights of the
parties have not been infringed.
We will invoke plain error only in exceptional cases, when it
is necessary to ensure a fair and impartial trial. Wilkins, 746
P.2d at 589. We invoked plain error in Wilkins because the
district court repeatedly reminded the defendant that he had a
right to take the stand, thus drawing the jury's attention to the
fact that he had chosen not to testify and thereby infringing on
the defendant's right against self-incrimination.
Here, in contrast, Thompson has not shown that either of the
alleged errors affected a substantial right or that he was deprived
of a fair trial. With regard to the jury inquiries, the facts are
as follows.
After the jury had deliberated for about an hour, the foreman
sent a note to the judge stating that "we would like to know if the
search warrant was issued before or after the drug purchase."
After an extended discussion with defense counsel and the
prosecutor, the judge wrote the jury a note saying that the search
warrant was issued on Friday, August 2, 1991, and executed on
August 3 , 1991. He stated for the record that "the court has
gathered with counsel, shown them the request, and it has been
agreed to answer as follows .... II
Several hours later, the jury sent in another question, asking
whether they could see the "original mapn that was drawn of the
Arcade Bar area. The judge discussed this request briefly with
counsel and sent the jury a note saying that they could not see the
map because it was not in evidence. Based on the record, no other
answer could have been given. Therefore, Thompson's substantial
rights were not adversely affected by his absence.
The second alleged error occurred when the prosecutor
concluded his rebuttal closing argument with the following comment:
Ladies and gentlemen of the jury, drug cases are
difficult cases because drug abuse is a national issue.
Drug sellers are the focus, or ought to be the focus, of
the war on drugs. With your verdict you can make this
community a population with one fewer drug sellers [sic]
than it used to have.
Thompson argues that it is improper for a prosecutor to urge
a jury "to assume the mantle of the community's conscience and, in
that capacity, to convict an accused." Quoting a federal court of
appeals opinion, he suggests that "jurors may be persuaded by such
appeals to believe that, by convicting a defendant, they will
assist in the solution of some pressing social problem.'' United
States v. Monaghan (D.C. Cir. 1984), 741 F.2d 1434, 1441.
In Monaqhan, however, the court held that "overstepping the
bounds of proper advocacyu does not necessarily violate an
accused's right to due process. In order to "rise to
constitutional proportions," the court said, an improper
prosecutorial remark must cause substantial prejudice to the
defendant. 741 F.2d at 1443. Here, while the prosecutor's remarks
may have been objectionable, the record contains no evidence that
his closing remarks caused substantial prejudice to the defendant.
Therefore, absent an objection, the remarks are not a basis for
7
invoking the plain error doctrine.
As there is no basis for invoking the plain error doctrine, we
hold that Thompson's failure to object to the alleged errors at
trial bars him from raising them on appeal.
Aff inned.
Justice William E. Hunt, Sr., specially concurring.
I concur in the result of the majority opinion, but not with
all that is said therein.
June 10, 1993
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
William Hooks, Attorney at Law
State Appellate Public Defender's Office
Capitol Station
Helena, MT 59620
Hon. Marc Raciwt, Attorney General
John Paulson, Assistant
215 N. Sanders, Justice Bldg.
Helena, MT 59620
Dennis Paxinos, County Attorney
Dale Mrkich, Deputy
P.O. Box 35025
Billings, MT 59107
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY:
Deputy