Submitted on Briefs: October 26, 2016
Court of the First Judicial District, In and For the County
of Lewis and Clark, Cause No. ADC 14-147 Honorable Mike
Menahan, Presiding Judge
Appellant: Chad Wright, Chief Appellate Defender, Alexander
H. Pyle, Assistant Appellate Defender, Helena, Montana.
Appellee: Timothy C. Fox, Montana Attorney General, Sarah
Clerget, Assistant Attorney General, Helena, Montana Leo
Gallagher, Lewis and Clark County Attorney, Lisa Leckie,
Deputy County Attorney, Helena, Montana.
Patricia Cotter Justice.
William Lawrence appeals from his conviction for felony theft
following a jury trial in the First Judicial District Court,
Lewis and Clark County. Lawrence raises allegations of
prosecutorial misconduct, ineffective assistance of counsel,
and an abuse of discretion by the District Court. We reverse
and remand for a new trial.
Lawrence raises four issues on appeal. We restate the
dispositive issue as follows:
the prosecutor's comments during closing arguments
require reversal under the plain error doctrine?
AND PROCEDURAL BACKGROUND
On April 8, 2014, Lawrence and his brother, Steven Dubois,
arrived at Wayne Miller Coins on Last Chance Gulch in Helena,
Montana. Lawrence and Dubois entered the shop after being
buzzed in through the back door. Lawrence was in possession
of coins he wished to have appraised, something he had done
previously at Miller Coins. After Wayne Miller, the owner of
the shop, informed him that his coins were valueless,
Lawrence perused the store while questioning a store
employee, Emily Gleason, about some of the items. Meanwhile,
Dubois made his way to the back door, apparently intent on
leaving the store. While following his brother out of the
shop, Lawrence stopped to admire artwork adorning the walls
of the hallway. As Lawrence continued to look at the artwork,
Dubois grabbed a shipping package containing roughly $10, 500
in silver, one-ounce coins and exited the store. Lawrence
then started toward the back door. Gleason saw Dubois take
the package and hurried to the back of the store to confront
Lawrence. After a brief exchange, Lawrence left and got in a
car with Dubois, who drove away. Lawrence was apprehended the
next day in possession of a backpack containing nearly half
of the stolen silver coins.
Lawrence was charged with theft under § 45-6-301(1)(a),
MCA. A two-day trial was held in the First Judicial District
Court, Lewis and Clark County. During closing argument, the
prosecutor told the jury, "The presumption of innocence
that you came into this trial with no longer exists at this
point." Defense counsel did not object. Subsequently,
the jury found Lawrence guilty of felony theft and he was
sentenced to ten years in prison.
On appeal, Lawrence raises a myriad of arguments, alleging
that the prosecutor committed plain error requiring reversal
by stripping Lawrence of the presumption of innocence as well
as misstating the law of the charged offense. Further,
Lawrence argues that the District Court abused its discretion
by not granting a mistrial after the State violated an order
in limine, and that defense counsel provided ineffective
assistance by failing to object to prosecutorial misconduct,
an erroneous jury instruction, and hearsay testimony by a
witness for the State.
In general, this Court does not address issues of
"'prosecutorial misconduct pertaining to a
prosecutor's statements not objected to at
trial.'" State v. Aker, 2013 MT 253, ¶
21, 371 Mont. 491, 310 P.3d 506 (quoting State v.
Longfellow, 2008 MT 343, ¶ 24, 346 Mont. 286, 194
P.3d 694). However, we may exercise our discretion and review
such issues under the plain error doctrine. Aker,
¶ 21 (citing State v. Lacey, 2012 MT 52, ¶
14, 364 Mont. 291, 272 P.3d 1288); State v. Hayden,
2008 MT 274, ¶ 17, 345 Mont. 252, 190 P.3d 1091. The
plain error doctrine is to be used sparingly, and only on a
case-by-case basis. Hayden, ¶ 17. Once the
doctrine is invoked, this Court's review is grounded in
our "inherent duty to interpret the constitution and to
protect individual rights set forth in the
constitution." State v. Finley, 276 Mont. 126,
134, 915 P.2d 208, 213 (1996) overruled on other grounds
State v. Gallagher, 2001 MT 39, ¶ 21, 304 Mont.
215, 19 P.3d 817.
We do not reach the issues regarding the order in limine, the
alleged hearsay, or the jury instruction, nor do we reach the
question of whether defense counsel's failure to object
to the prosecutor's statement constitutes ineffective
assistance of counsel. Pertinent here, Lawrence argues the
prosecutor's statement regarding the presumption of
innocence constitutes plain error requiring reversal and
remand for a new trial.
Whether the prosecutor's comments during closing
arguments require reversal under the plain error
The purpose of the plain error doctrine is to correct an
error not objected to at trial that affects the
"fairness, integrity, and public reputation of judicial
proceedings." Finley, 276 Mont. at 134, 915
P.2d at 213. The plain error doctrine may be used
"'in situations that implicate a defendant's
fundamental constitutional rights, '" and where
"'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.'"
Aker, ¶ 21 (quoting State v. McDonald,
2013 MT 97, ¶ 8, 369 Mont. 483, 299 P.3d 799).
Therefore, we first determine whether the defendant's
fundamental constitutional rights have been implicated.
The underlying question here is a simple one: whether a
prosecutor stating during closing argument that the
presumption of innocence has been removed from the defendant
implicates a defendant's fundamental rights. We cannot
overstate the importance of the foundational principle that
is the presumption of innocence. It is a bedrock, axiomatic,
and elementary tenet of our criminal justice system.
State v. Williams, 184 Mont. 111, 112, 601 P.2d
1194, 1195 (1979). Further, enforcement of this principle,
meaning its application to each and every criminal defendant,
"lies at the foundation of the administration of our
criminal law." Coffin v. United States, 156
U.S. 432, 453, 15 S.Ct. 394, 403 (1895). Therefore, we
determine that the comment by the prosecutor stating the
presumption of innocence no longer applied to the defendant
implicated the defendant's fundamental rights. We next
determine whether a failure to review this alleged error