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                                                                No. 98-666

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2000 MT 49N


                                                      STATE OF MONTANA,

                                                      Plaintiff and Respondent,

                                                                      v.

                                                      DARELL McDONALD,

                                                     Defendant and Appellant.


                            APPEAL FROM: District Court of the Third Judicial District,

                                                In and for the County of Granite,

                                      The Honorable Ted L. Mizner, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                                   Kenneth H. Gray; Jackson & Rice, Helena, Montana

                                                            For Respondent:

                               Hon. Joseph P. Mazurek, Attorney General; John Paulson,

                                       Assistant Attorney General; Helena, Montana

                        J. Allen Bradshaw, Granite County Attorney; Philipsburg, Montana


                                           Submitted on Briefs: December 29, 1999


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                                                     Decided: February 24, 2000

                                                                    Filed:

                                    __________________________________________

                                                                     Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1.Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2.Appellant, Darell McDonald (McDonald) was charged in Granite County Justice Court
with the following offenses: (1) hunting a bull elk without a proper license; (2) failure to
wear the required orange-colored garments while hunting; (3) five counts of shooting
more than one game animal; (4) creating a hazard in the act of game hunting; and (5)
obstructing justice. Following a bench trial in justice court, McDonald was convicted of
the first four charges and acquitted of the fifth charge. McDonald then appealed to the
District Court for a trial de novo. The jury in District Court returned a verdict of guilty as
to all charges except one of the five counts of shooting more than one game animal.
McDonald appeals from the judgment of conviction.

¶3.On appeal, McDonald raises one issue: "[w]hether the prosecutor's closing argument
was such a violation of Mr. McDonald's due process rights that it amounts to plain error as
a matter of law."

¶4.McDonald cites the Court to thirteen instances in the prosecutor's closing argument
where he allegedly either vouched for certain witnesses or called other witnesses liars.

The witnesses that I believe the State of Montana presented don't have any personal bias
or personal goal or desire or reason to say or do what they've done. . . . And there's been
nothing to be presented to you folks that I can remember that would indicate that there is
any suggestion that any of those witnesses would be biased or have some sort of ulterior

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motives for wanting to do anything here other than to tell the truth as they saw it.

Now conversely I believe that the Defendants themselves have considerable to gain or lose
depending on the outcome of this case. . . .. . . .

. . . So, I'm suggesting I guess, that I believe that there's considerable contrivance in the
acquisition of those statements.

. . . . [E]very one of these witnesses conveniently were looking at their watches just at the
right time. That seems a little contrived and coincidental to me. . . .. . . .

. . . Now all of which I contend is a contrivance and a concoction and never occurred.

. . . That's a totally new one. . . .

. . . So we make this story up . . . .

....

. . . [E]verything is calculated to corroborate this concoction about a phantom dark pickup.
All of these witness statements a year later were all designed to give some sort of credence
to that nonsensical story. . . .

....

. . . I suggest that it's an insult to all of our intelligence to even suggest that.

. . . [T]hese Defendants first contrived their story about a phantom vehicle . . . .. . . .

Then we have the mysterious bullet that appears, to my knowledge, like more than a year
later. Totally after the other trial. Where's it been? Where did it come from? What
credibility does it have? None, as far as I'm concerned. I'm not going to consider some
bullet that suddenly we hear about after over a year, along with these other contrivances,
being anything to do with this event.

So that, it boils down to credibility. And I'm certain you know where I think the credibility
is not.. . . .


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. . . I'm asking you to consider that the Defendants can not be believed and should not be
believed. That's outrageous. Thank you.. . . .

And Mr. Garlati [a defense witness], who I think, as far as I'm concerned told the truth
totally, said that the interval was just a matter of seconds. . . .

¶5.McDonald acknowledges that he did not contemporaneously object to any of the
alleged improprieties in the argument. Recognizing that a defendant's failure to object to a
prosecutor's closing argument precludes appellate review, § 46-20-104(2), MCA, and
State v. Losson (1993), 262 Mont. 342, 865 P.2d 255, he submits that the improper
argument constitutes "plain error" under our holding in State v. Finley (1996), 276 Mont.
126, 915 P.2d 208.

¶6.In Finley, we clarified the common law plain error doctrine and upheld our
discretionary power to review claimed errors which implicate a criminal defendant's
fundamental constitutional rights, even if no contemporaneous objection is made in
circumstances where failure to review the claimed error may result in a manifest
miscarriage of justice, may leave unsettled the fundamental fairness of the trial, or may
compromise the integrity of the judicial process. Finley, 276 Mont. at 137-38, 915 P.2d at
215. In both Finley and State v. Sullivan (1996), 280 Mont. 25, 927 P.2d 1033, we
invoked this discretionary power to review claims of prosecutorial misconduct that
implicated the defendant's constitutional privilege against self-incrimination.

¶7.The common law plain error rule is reserved for "exceptional cases" and is to be used
sparingly. State v. Miller, 1998 MT 177, ¶ 36, 290 Mont. 97, ¶ 36, 966 P.2d 721, ¶ 36. In
contrast to Finley and Sullivan, the present appeal does not involve improper comment by
a prosecutor on a defendant's post-arrest silence, thereby implicating the defendant's
constitutional privilege against self-incrimination.

¶8.In his reply brief, McDonald relies heavily upon a decision by the Ninth Circuit Court
of Appeals, Dubria v. Smith (9th Cir. 1999), 197 F.3d 390, in which the court condemns
improper closing arguments by the prosecutor. However, that decision was in the context
of analyzing an ineffective assistance of counsel claim wherein the court concluded that
counsel's failure to object to closing argument fell below the objective standard of
reasonable representation. Dubria, 197 F.3d at 402. As McDonald concedes, he has not
raised an issue on appeal as to ineffective assistance of counsel and thus we do not address
the closing argument in that context.

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¶9.The issue before this Court is not whether counsel was ineffective in failing to object
but rather whether the prosecutor's arguments constitute plain error. We are not convinced
that failure to review the alleged errors would result in a manifest miscarriage of justice,
would leave unsettled the fundamental fairness of the trial, or would compromise the
integrity of the judicial process. McDonald does not point to any exceptional
circumstances that would remove his case from the general prohibition against raising
objections to closing arguments for the first time on appeal and that would warrant our
review of the matter under the common law plain error doctrine.

¶10.The judgment of the District Court is affirmed.

                                               /S/ W. WILLIAM LEAPHART

We concur:

                                                        /S/ J. A. TURNAGE

                                                /S/ TERRY N. TRIEWEILER

                                                         /S/ JIM REGNIER

                                                /S/ WILLIAM E. HUNT, SR.




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