State v. Copelton ( 1994 )

NO. 93-633
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA, .-.
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Plaintiff and Respondent, , , .*
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JOHN OWEN COPELTON,
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Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Herman A. Watson, 111, Bozeman, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Patricra
Jordan, Assistant Attorney General, Uelena, Montana;
A. Michael Salvagni, Gallatin County Attorney, Jane
Mersen, Deputy County Attorney, Bozeman, Montana
Submitted on Briefs: May 19, 1994
Decided: July 6, 1994
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from a jury verdict and the ensuing sentence
and judgment by the Eighteenth Judicial District Court, all at in
County. We affirm.
We consider the following issue on appeal:
Did the District Court err in overruling Defendant's objection
to statements made in the State's closing argument?
John Copelton (Copelton) and Sam Leggett (Leggett) were
involved in a one car accident on December 13, 1992, in Bozeman.
After drinking at various places, the two men ended up at the
Bozeman gun show where Leggett bought two guns and Copelton bought
a knife.
Although Leggett is a professional truck driver, he testified
that Copelton was driving Leggett's truck. Copelton who had blood
alcohol content of .I93 at the time he was arrested, is alleged to
have lost control of the truck and rolled it. Copelton does no4
remember whether he or Leggett was driving at the time of the
accident.
Copelton was subsequently arrested and charged with driving
under the influence, carrying a concealed weapon, and failure to
use seat belts. Copelton pled guilty to not using his seat belt.
However, a jury trial was held on the other two charges. The jury
returned a guilty verdict after six hours of deliberation and a
sentencing hearing was subsequently held on November 4, 1993.
On the Driving Under the Influence charge, the court sentenced.
Copelton to three days in jail, a fine of $300.00, administrative
2
fees of $15.00, court costs of $10.00 and six-month suspension of
his driver's license. Further, Copelton was required to complete
the ACT program. On the concealed weapon charge, the court
sentenced Copelton to a fine of $100.00, administrative f e e s of
$15.00, and court costs of $10.00.
Copelton appeals the jury verdict and the subsequent sentence.
The basis of this appeal is Copeltonls argument that the
counselor for the State made prejudicial comments concerning
evidence outside the record during her closing argument to t h e
jury. The statement made included:
If the State called every rebuttal witness that the
defendant wanted us to call, weld still be here tomorrow.
You can't speculate as to what they would have said or
who they would have called. The State didnvt need to
call any rebuttal witnesses because there8s plenty of
evidence in front of you, that Mr. Copelton was driving.
Copelton argues that the prosecutor's remarks acted to deny his
right of confrontation of the witnesses to which she referred in
her closing statement. Copelton states in his brief that his
counsel objected to this reference to evidence outside the record.
However, what the record actually shows is at the close of
defense counse18s own closing argument, he requested that he be
permitted to make an objection after the jury left. The jury was
dismissed and then counsel made an objection to something that the
State's counsel had said during her closing statement. The court
overruled the objection without any discussion.
Section 46-20-104, MCA, calls for a "timelyt8
objection except
as indicated in 3 46-20-701(2), MCA. The latter section provides
that on appeal t h i s Court can consider errors which affect
constitutional rights of the party as long as they also 1)
constitute a right which did not exist at the time of trial, 2) the
court or law enforcement agency suppressed evidence at trial, or 3)
a material or controlling fact upon which the claim is predicated
was not known at the time of trial.
While Copelton argues on appeal that his constitutional right
of confrontation is at issue and that the statement prejudiced him,
he has not excused his failure to object by establishing that an1
of the reasons mentioned in 5 46-20-701(2), MCA, exist. Failure to
object to an alleged error at trial in an timely fashion prevents
this Court from reviewing the alleged error. State v. Rodgers
(1993), 257 Mont. 413, 849 P.2d 1028. We conclude that because
Copelton has not met any of the statutory criteria of g 46-20-
701(2), MCA, his failure to timely object during the State's
closing argument prevents our review of the alleged error.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of this Court and by a report of its result to the
West Publishing Company.
C
Justice
We concur: /
Y ' Chief Justice
Justices
July 6, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order w s sent by United States mail, prepaid, to the
a
fdIowing named:
Herman A. Watson, 111
Attorney at Law
502 S. 19th Ave., Ste; 305
Bozeman, MT 59715
Hon. Joseph P. Mazurek, Attorney General
Patricia Jordan, Assistant
Justice BIdg.
Helena, MT 59620
A. Michael Salvagni, County Attorney
Jane Mersen, Deputy
615 S. 16th Ave., Rm. 100
Bozeman, MT 59715
ED SMITH
CLERKOFTHE
SUPREME COURT
STATE OF
MONTANA