APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 10-474 Honorable Edward P. McLean, Presiding Judge
The opinion of the court was delivered by: Justice Jim Rice
Submitted on Briefs: January 31, 2013
Justice Jim Rice delivered the Opinion of the Court.
¶1 Ramah Irene McDonald (McDonald) appeals the judgment entered by the Fourth Judicial District Court, Missoula County, following a trial by jury that found her guilty of Assault on a Peace Officer, a felony.
¶2 McDonald raises the following issue:
¶3 Did the prosecutor's comments during closing argument constitute plain error?
PROCEDURAL AND FACTUAL BACKGROUND
¶4 McDonald was an inmate at the Missoula County Detention Center and became involved in a heated exchange with Detention Officer Paige Pavalone (Pavalone) over McDonald's disagreement with an instruction that she remove paper from the window of her cell that obstructed the view into the cell. Hearing the loud conversation, Detention Officers Eric Lechleitner (Lechleitner) and Michael Gauci (Gauci) stepped into the area. The matter escalated when McDonald refused to comply with the instructions of the officers to immediately report to the maximum security unit. A physical altercation ensued, wherein McDonald bit Pavalone on the arm. McDonald was charged with one count of felony assault on a police officer in violation of § 45-5-210, MCA.*fn1 The first trial resulted in a mistrial when the jury was unable to reach a verdict.
¶5 The case was retried to a jury on September 26-27, 2011. Pavalone testified she had been bitten by McDonald, and Lechleitner and Gauci testified that Pavalone had yelled that she was being bitten during the altercation. Detention Officer Corey Hawkins testified that he observed a red mark with what appeared to be saliva on Pavalone's arm after the altercation. McDonald testified she had not bitten Pavalone, and Katie Garding, another inmate, testified that she did not see McDonald bite Pavalone. The prosecutor's closing arguments included the following statements:
Did Paige Pavalone get bit? She said, she got bit . . .
During the time of this incident, both Officer Gauci and Officer Lechleitner heard Paige ...