Submitted on Briefs: October 2, 2019
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
Appellant: Chad Wright, Appellate Defender, Deborah S. Smith,
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
McGRATH CHIEF 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
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
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.
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,
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
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.
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.
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.
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 ...