APPEAL FROM: District Court of the Second Judicial District, In and For the County of Silver Bow, Cause No. DC 09-193 Honorable Brad Newman, Presiding Judge
The opinion of the court was delivered by: Michael E Wheat
Submitted on Briefs: October 17, 2012
Decided: December 4, 2012
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Steven Todd Colvin (Colvin) appeals from a judgment entered by the Second Judicial District Court, Silver Bow County, denying his motion for a new trial. We affirm.
¶3 On December 11, 2009, Colvin was charged by Information with two counts of felony assault on a peace officer, two counts of misdemeanor assault with a bodily fluid, one count of misdemeanor assault, and one count of resisting arrest. The charges all stemmed from an altercation with two police officers and a private security guard on November 10, 2009. Colvin pled not guilty and a jury trial was held on June 6-8, 2011.
¶4 Prior to the trial, John Pierce, the security guard involved in the incident, filed a civil action against several defendants, including Colvin, for an injury he allegedly sustained during the altercation with Colvin. Colvin, in turn, filed a counterclaim against Pierce. Two of the expert witnesses who were retained for the civil case also testified for Colvin during the criminal trial. During the trial, the State pointed this out several times in its closing and rebuttal arguments.
¶5 The jury convicted Colvin of four of the six counts, acquitting him of one count of felony assault and one count of assault with a bodily fluid. On July 8, 2011, Colvin filed a motion for a new trial or, in the alternative, for judgment of acquittal. He argued, in part, that the State made comments in its closing and rebuttal arguments that amounted to prosecutorial misconduct. Specifically, he complained that the State misrepresented the status of the civil action arising from the incident and unfairly referred to Colvin's expert witnesses as "hired guns," suggesting that Colvin paid them to testify in a specific way.
¶6 The court held a hearing on the motion on August 18, 2011. The court denied the motion, determining that Colvin's failure to make a timely objection at trial concerning the alleged prosecutorial misconduct constituted a waiver of the objection. Colvin timely appeals.
¶7 We review a district court's denial of a motion for a new trial for an abuse of discretion. State v. Parrish, 2010 MT 212, ¶ 14, 357 Mont. 477, 241 P.3d 1041. As a general rule, parties may raise on direct appeal only those issues and claims that were properly preserved by timely objection in the trial court. State v. West, 2008 MT 338, ¶ 16, 346 Mont. 244, 194 P.3d 683. This Court may invoke the plain error doctrine "only in situations that implicate a defendant's fundamental constitutional rights when failing to review the alleged error may result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the proceedings, or compromise the integrity of the judicial process." State v. Lacey, 2012 MT 52, ¶ 14, 364 Mont. 291, 272 P.3d 1288 (citing State v. Thorp, 2010 MT 92, ¶ 23, 356 Mont. 150, 231 P.3d 1096). We apply plain error review sparingly. Lacey, ¶ 14 (citing Thorp, ¶ 23).
¶8 On appeal, Colvin points to five specific statements the State made during its closing and rebuttal arguments that he argues amount to prosecutorial misconduct. Although he never objected to any of these statements during the State's closing or rebuttal arguments, he claims he made a continuing objection during the State's cross-examination of one of the expert witnesses that carried over into the closing arguments. The objection was made during a line of ...