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State v. Abella

Supreme Court of Montana

October 29, 2019

STATE OF MONTANA, Plaintiff and Appellee,
ALFRED JOHN ABELLA, Defendant and Appellant.

          Submitted on Briefs: October 2, 2019

          APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 15-707 Honorable Gregory R. Todd, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Deborah S. Smith, Assistant Appellate

          For Appellee: Timothy C. Fox, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana Scott D. Twito, Yellowstone County Attorney, Christopher A. Morris, Deputy County Attorney, Billings, Montana



         ¶1 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 Montana Reports.

         ¶2 Alfred John Abella ("Abella") appeals from an order of the Thirteenth Judicial District Court, Yellowstone County. He contends that his right to due process was violated when the prosecutor cross-examined him about his pretrial silence requiring reversal of his conviction. Alternatively, he argues, and the State concedes, the judgment should be amended to credit him with time served of an additional 181 days. We affirm the District Court's conviction and sentence of Abella and remand with instructions to grant Abella his requested credit for time served.

         ¶3 On July 4, 2015, Abella, in a jealous rage, confronted Anthony Lowe ("Lowe"), whom he thought was sleeping with his girlfriend, Tomi Gray ("Gray"). The confrontation, which was precipitated by an altercation a week earlier, occurred in the early morning hours at Gray's house, where Lowe, Gray and others were about to smoke methamphetamine. Abella then arrived at the home and began knocking loudly on the front door and eventually forced the locked door open. Abella appeared wielding a machete in his hand and proceeded towards Lowe while yelling at him. Lowe then backed away towards the kitchen to retrieve a sledgehammer in an effort to defend himself. However, a sledge hammer is no match for a machete and Lowe's efforts proved futile. Abella swung his machete at Lowe slicing through Lowe's arm. Abella's strike cut through Lowe's ulna bone and tendons causing him to bleed profusely. Abella, seemingly coming to his senses, then dropped his machete and proceeded to help Lowe stop the bleeding. Abella then left the home prior to Billings Police Department officers arriving. On July 21, 2015, Abella was arrested for assault with a weapon.

         ¶4 Abella was formally charged with assault with a weapon, and on March 22, 2017, a jury found him guilty. The District Court issued a judgment and sentencing order on July 21, 2017.

         ¶5 During the trial, Abella, the lone witness for the defense, proffered a separate version of the story than the State's six witnesses had testified about. In his version, he claimed he was only defending himself with his machete from Lowe's sledgehammer attack. During the State's cross-examination and closing argument, the prosecutor questioned the veracity of his story and made comments indicating that Abella's story appeared to be a recent fabrication. During trial, the prosecutor asked the defendant, "And today is the first time that we have heard your story?" Abella appeals his conviction on the basis that the State violated his right to due process by commenting on his silence and requests, alternatively, that the judgment should be amended to credit him with time served.

         ¶6 We exercise plenary review of constitutional questions. State v. Covington, 2012 MT 31, ¶ 13, 364 Mont. 118, 272 P.3d 43. We review a criminal sentence that imposes a year or more of actual incarceration for legality. State v. Herman, 2008 MT 187, ¶ 11, 343 Mont. 494, 188 P.3d 978.

         ¶7 Abella maintains that the prosecutor committed misconduct during trial when she commented on his story that he asserted during trial. The essence of the defense argument is that by questioning Abella on his story during cross-examination and commenting on it during her closing argument, Abella's fundamental right to remain silent was infringed and he was thereby denied due process of law.

         ¶8 It is well established that impeachment use of a defendant's silence after arrest and after receiving Miranda warnings is a violation of due process. State v. Morsette, 2013 MT 270, ¶ 35, 372 Mont. 38, 309 P.3d 978 (citing Doyle v. Ohio, 426 U.S. 610, 618-19 (1976)). However, a prosecutor does not infringe on a defendant's Fifth Amendment right to remain silent by attacking the veracity of a defendant's story told at trial. State v. Godfrey, 2004 MT 197, ¶ 37, 322 Mont. 254, 95 P.3d 166; Morsette, ¶ 38. A prosecutor is allowed to "attempt to convince a jury that a defendant's story is a recent fabrication," Morsette, ¶ 38, and we will not reverse a conviction unless there is a "clear comment on or infringement of" the defendant's fundamental right to remain silent, Godfrey, ¶ 40. A prosecutor's questions cross the line, however, when they are "designed to create an inference that, by declining to give his version of events after invoking his Miranda rights, [the defendant] must be guilty." State v. Wagner, 2009 MT 256, ¶ 20, 352 Mont. 1, 215 P.3d 20; State v. Sullivan, 280 Mont. 25, 36, 927 P.2d 1033, 1040 (1996). ¶10 Indeed, it is a fine line that a prosecutor chooses to walk, which is why such questions and statements are "inadvisable." Godfrey, ¶ 37. Clearly, under these facts it was unnecessary.

         ¶11 Here, given the overwhelming evidence against Abella, the prosecutor ultimately fell within the bounds of acceptable questioning. The prosecutor focused on highlighting Abella's story as being recently fabricated after hearing all the witness testimony, not on his silence. She made no explicit comment or infringement on Abella's fundamental right to remain silent. In Godfrey, we held that comments focused upon the veracity of a defendant's story, rather than on his silence, were allowed. There, like here, the prosecutor had asked the defendant about the amount of time he had ...

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