Submitted on Briefs: October 25, 2017
Court of the Fourth Judicial District, In and For the County
of Missoula, Cause No. DC 2015-171 Honorable Karen Townsend,
Appellant: Chad Wright, Chief Appellate Defender, Alexander
H. Pyle, Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Michael
S. Wellenstein, Assistant Attorney General, Helena, Montana
Kirsten Pabst, Missoula County Attorney, Mac Bloom, Deputy
County Attorney, Missoula, Montana
Jeremiah Shea, Justice.
Pursuant to Section I, Paragraph 3(c), 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
Defendant and Appellant Mya Rose Wolf Black ("Wolf
Black") appeals her jury conviction of assault with a
weapon in violation of § 45-2-213, MCA, in the Fourth
Judicial District Court, Missoula County. We address whether
this Court should review Wolf Black's unpreserved claims
of prosecutorial misconduct under the plain error doctrine.
We decline to conduct plain error review, and we affirm.
On April 6, 2015, the State of Montana charged Wolf Black for
assaulting Carrie Williams ("Williams") by striking
her repeatedly with a rock. Williams was living out of her
camper with her ten-year-old son when she awoke in the night
to someone yelling and a rock being thrown through her camper
window. Williams stated that a voice yelled "Get out
here, " identified herself as "Mya, " and
threated to drag Williams out of the camper if she did not
comply. Williams testified that she exited the camper, and
then Wolf Black attacked her and beat her with a rock on the
head and leg. The attack caused Williams to suffer injuries
that included a gash to the back of her head that required
staples, a blow to her face, black eye, tremor in her eye,
and cuts and bruising on her leg and elbow. The State
identified the rock that it alleged Wolf Black used to
assault Williams, but when the rock was tested, no traces of
blood were found on it.
Although the State did not present evidence explaining the
absence of blood on the rock, the State presented other
evidence, including the testimony of Williams's son and
another eyewitness who saw Wolf Black attack Williams. The
State also called Williams's ex-boyfriend, Ron Fabianski
("Fabianski"), as a witness. Fabianski has three
convictions for Partner or Family Member Assault (PFMA)
against Williams. As part of a plea agreement involving the
third PFMA charge, Fabianski provided the State with
information and testimony regarding conversations with Wolf
Black in which Wolf Black admitted to smashing a camper
window and beating someone. The State agreed to recommend a
two-year deferred sentence in Fabianski's case.
During closing arguments, the prosecutor made several
comments about the weapon utilized in the assault and about
the State's sentencing recommendation for Fabianski's
third PFMA charge. No objections were made. On December 4,
2015, Wolf Black was convicted, and, on February 2, 2016, the
District Court sentenced her as a persistent felony offender
(PFO) to fifteen years in prison with five years suspended.
Wolf Black appeals the conviction.
When a defendant raises the plain error doctrine to request
our review of issues that the defendant did not raise before
the district court, our review is discretionary, State v.
Stutzman, 2017 MT 169, ¶ 13, 388 Mont. 133, 398
P.3d 265 (internal citations omitted), and such review is
"applied sparingly on a case-by-case basis, "
State v. Walton, 2014 MT 41, ¶ 10, 374 Mont.
38, 318 P.3d 1024; State v. Favel, 2015 MT 336,
¶ 23, 381 Mont. 472, 362 P.3d 1126.
Wolf Black argues the prosecutor committed multiple errors
during closing argument, including repeatedly making
statements on matters outside the record. Wolf Black argues
that the errors rose to the level of prosecutorial
misconduct, violated Wolf Black's due process and
confrontation rights, and are therefore reviewable by this
Court under the plain error doctrine. See State v.
Hayden, 2008 MT 274, ¶ 27, 345 Mont. 255, 190 P.3d
1091; see also State v. Chafee, 2014 MT 226, ¶
27, 376 Mont. 267, 332 P.3d 240 (determining prosecutors
cannot refer to matters outside of the record, misrepresent
the law to the jury, or tell the jury to base its decision on
factors other than the law, evidence admitted at trial, and
instructions by the court). Wolf Black points to three
specific instances during closing arguments that warrant
plain error review and merit reversal: (1) after speaking
with the lead detective, the prosecutor stated that he
realized "a rock is a weapon of opportunity"; (2)
that "it takes a minute for your blood to pool up . . .
. [a] quick strike is not going to get blood from the scalp
through the hair onto the rock. . . ."; and, (3) in
regard to the State's sentencing recommendation for
Fabianski's third PFMA charge, "there are plenty of
reasons why you can't go forward with a stern
prosecution. Lack of evidence, uncooperative witnesses,
plenty." The State counters that Wolf Black is not
entitled to plain error review because she has not argued
that failing to review the prosecutor's alleged improper
closing argument will result in a manifest miscarriage of
justice, leave unsettled the question of the fundamental
fairness of trial, or compromise the integrity of the
judicial process. See Stutzman, ¶ 23.
Additionally, the State contends that neither were the
comments substantial errors that caused a fundamentally
unfair trial, nor were the comments outside of the scope
afforded to prosecutors during trial. See State v.
Green, 2009 MT 114, ¶ 33, 350 Mont. 141, 205,
P.3d 798 (internal citations omitted); see also State v.
Bashor, 188 Mont. 397, 417, 614 P.2d 470, 481 (1980).
"Absent a timely objection, we will not review the
prosecutor's actions on appeal unless they implicate a
defendant's fundamental constitutional rights, "
State v. Lehrkamp, 2017 MT 203, ¶ 15, 388 Mont.
295, 400 P.3d 697; Favel, ¶ 13, and failure to
reverse the actions "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.
Aker, 2013 MT 253, ¶¶ 21, 25, 371 Mont. 491,
310 P.3d 506 (internal citations omitted); Stutzman,
¶ 23. While this Court may employ plain error review to
reverse prosecutorial misconduct, the burden remains on the
appealing party to convince this Court such review is
necessary. State v. McDonald, 2013 MT 97,
¶¶ 10, 17, 369 Mont. 483, 299 P.3d 799;
Aker, ¶ 24. Further, this Court has refused on
numerous occasions to conduct plain error review of a
prosecutor's comments "even in cases where we have
concluded that the comments were improper."
Aker, ¶ 29. ...