                                                                                               12/27/2016


                                          DA 15-0428
                                                                                           Case Number: DA 15-0428

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2016 MT 346



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

WILLIAM JAMES LAWRENCE,

              Defendant and Appellant.



APPEAL FROM:            District 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


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Chief Appellate Defender, Alexander H. Pyle, Assistant
                        Appellate Defender, Helena, Montana

                For 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


                                                   Submitted on Briefs: October 26, 2016

                                                              Decided: December 27, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     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.

                                          ISSUE

¶2     Lawrence raises four issues on appeal. We restate the dispositive issue as follows:

       Whether the prosecutor’s comments during closing arguments require reversal
       under the plain error doctrine?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     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


                                             2
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.

¶4     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.

¶5     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.

                               STANDARD OF REVIEW

¶6     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,


                                              3
¶ 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.

                                       DISCUSSION

¶7     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.

¶8     Whether the prosecutor’s comments during closing arguments require reversal
       under the plain error doctrine?

¶9     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



                                              4
Mont. 483, 299 P.3d 799).       Therefore, we first determine whether the defendant’s

fundamental constitutional rights have been implicated.

¶10    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 might 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 McDonald, ¶ 8).

¶11    This Court has, on numerous occasions, refused to invoke the plain error doctrine

because the alleged error did not result in a miscarriage of justice, raise a question as to

the fundamental fairness of the proceedings, or compromise the integrity of the judicial

process. See, e.g., McDonald, ¶ 17 (concluding that the challenged comment in closing

argument did not raise the specter of prosecutorial misconduct necessitating the exercise

of plain error review to protect the fundamental fairness of the proceeding); State v.


                                             5
Thorp, 2010 MT 92, ¶¶ 25-30, 356 Mont. 150, 231 P.3d 1096 (determining that a

cautionary instruction was sufficient under the circumstances to remedy any alleged

infringement on the defendant’s constitutional right to a fair trial). However, we have

also previously determined that prosecutorial misconduct may warrant relief under the

plain error doctrine.1

¶12    This Court has not previously been faced with comments such as those at issue in

this case. Due to the gravity of the presumption of innocence within our criminal justice

system, we determine that the challenged comment, “[t]he presumption of innocence that

you came into this trial with no longer exists at this point,” leaves unsettled the question

of whether or not the proceedings were fundamentally fair and compromises the integrity

of the judicial process. Therefore, as we find that the circumstances of the instant case

warrant application of the plain error doctrine, we proceed to address the merits of the

alleged error.

¶13    “Both the Sixth Amendment to the United States Constitution and Article II,

Section 24 of the Montana Constitution guarantee criminal defendants ‘the right to a fair

trial by a jury.’” Aker, ¶ 24 (quoting Hayden, ¶ 27). Prosecutorial misconduct “may be

grounds for reversing a conviction and granting a new trial if the conduct deprives the

1
   In State v. Hayden, we reversed and remanded for a new trial based on the prosecutor’s
comments. Hayden, ¶¶ 30-33. In Hayden, the prosecutor’s challenged statements included, in
part, offering his own opinion as to witness testimony during closing argument, stating that the
jury could rely on the detective’s testimony, and improperly testifying to the efficacy of the
search during closing argument. Hayden, ¶ 32. In summary, we determined that the
prosecutor’s comments unfairly added “the probative force of his own personal, professional,
and official influence to the testimony of the witnesses,” and that the prosecutor’s conduct
invaded the role of the jury. Hayden, ¶ 33. In light of these two concerns, we determined that
the record left “unsettled the question of the fundamental fairness of the proceedings.” Hayden,
¶ 33.


                                               6
defendant of a fair and impartial trial.” Hayden, ¶ 27. It is well established that we

“‘consider alleged improper statements during closing argument in the context of the

entire argument.’” Aker, ¶ 24 (quoting State v. Makarchuk, 2009 MT 82, ¶ 24, 349

Mont. 507, 204 P.3d 1213).         We “do not presume prejudice from the alleged

prosecutorial misconduct; rather, the ‘defendant must show that the argument violated his

substantial rights.’” Aker, ¶ 24 (quoting McDonald, ¶ 10).

¶14    Therefore, we must determine whether the challenged comment deprived the

defendant of a fair and impartial trial. In making this determination, we consider the

challenged comment in the context of the trial and the closing argument as a whole.

Further, we consider whether the challenged comment violated the defendant’s

substantial rights.

¶15    As stated above, there are few principles in our criminal justice system as

fundamental as the presumption of innocence. The principle is so foundational that we

have recognized “it cannot be evidence, nor can it be introduced in the case, for it is in

the case from its inception.” State v. De Lea, 36 Mont. 531, 539, 93 P. 814, 817 (1908).

The presumption of innocence is the “safeguard which the law casts around all persons

accused of a crime, and the defendant cannot be reached by a verdict of guilty until this

safeguard is entirely removed.” De Lea, 36 Mont. at 539, 93 P. at 817. Further, and most

importantly in the instant case, the presumption endures throughout the deliberations of

the jury and may only be overcome “by evidence which satisfies the minds of the jurors

beyond a reasonable doubt.” De Lea, 36 Mont. at 539, 93 P. at 817. The presumption

remains attached to the defendant as he or she appears in the minds of the jurors after the


                                            7
jury has heard the entirety of the evidence and begun its deliberation. Indeed, it is

improper to say that the presumption may be removed from a defendant at any time;

rather, the presumption is overcome upon his or her conviction in a court of law.

¶16    In our criminal justice system, the presumption has been overcome when the State

has presented evidence against a criminal defendant that satisfies a jury, beyond a

reasonable doubt, that the defendant is guilty of the crime charged. De Lea, 36 Mont. at

540, 93 P. at 817-18. To that end, we instruct the jurors that they are to refrain from

making their decision as to the guilt or innocence of a defendant until they have

considered whether the State has overcome the presumption of innocence beyond a

reasonable doubt. The prosecutor’s statement made prior to deliberation of the jury that

the presumption of innocence no longer attached violated this bedrock principle of law.

¶17    It is reasonable and required that both the State and defense counsel jealously

guard this principle throughout the entirety of a criminal trial. It is clear from the record

that defense counsel failed to object to the challenged statement, yet that does not relieve

a prosecutor of his or her duty. The United States Supreme Court has stated that “it is as

much [the Prosecutor’s] duty to refrain from improper methods calculated to produce a

wrongful conviction as it is to use every legitimate means to bring about a just one.”

Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935). We agree. By

stating that the presumption of innocence no longer applied to the defendant, the

prosecutor improperly abdicated this duty and deprived the defendant of his fundamental

right to a fair and impartial trial by jury as guaranteed by Article II, Section 24, of the

Montana Constitution, and the Sixth Amendment to the United States Constitution.


                                             8
¶18    Here, it was Dubois, not Lawrence, who physically removed the coins from the

store. Lawrence testified on his own behalf, telling the jurors that he did not want to keep

the coins his brother had given him and intended to give them back to the coin shop,

hopefully without exposing himself to prosecution. However, he was arrested before he

could do so. While the jury was free to disbelieve this testimony, the fact remains that

under these circumstances, the presumption of innocence was critical to Lawrence’s

defense. When the prosecutor told the jury the presumption of innocence no longer

existed and his lawyer raised no objection or argument in opposition to that assertion, the

jury could well have concluded that the prosecutor was correct.

¶19    Viewing the challenged comment in the context of the surrounding statement

provides support for our conclusion that the prosecutor engaged in misconduct requiring

relief. In full, the prosecutor stated, “The presumption of innocence that you came into

this trial with no longer exists at this point. The instruction doesn’t say that you have to

believe what the defendant told you. You can use your common sense in determining

what happened in this case.” We infer that the instruction to which the prosecutor refers

is Instruction No. 4 which states, in relevant part:

       The Defendant is presumed to be innocent of the charge against him. This
       presumption remains with him throughout every stage of the trial and
       during your deliberations on the verdict. It is not overcome unless from all
       the evidence in the case you are convinced beyond a reasonable doubt that
       the Defendant is guilty. The Defendant is not required to prove his
       innocence or present any evidence.

This preliminary instruction was given by the district court at the commencement of the

trial, but was not read again at the conclusion of the evidence.



                                              9
¶20 The prosecutor is the representative of the State at trial and must be held to a

standard commensurate with his or her position. Noting this, the United States Supreme

Court has rightly observed that a prosecutor’s improper suggestions and assertions to a

jury “are apt to carry much weight against the accused when they should properly carry

none.” Berger, 295 U.S. at 88, 55 S. Ct. at 633. We conclude that these statements

could cause a reasonable juror to question the language of the preliminary jury

instruction and, therefore, have the potential effect of removing the presumption of

innocence from the defendant.

¶21   Our conclusion here finds support in a Tenth Circuit case in which a similar

representation was made by a prosecutor during closing arguments to a jury.            In

Mahorney v. Wallman, 917 F.2d 469 (10th Cir. 1990), the Court of Appeals held that a

prosecutor’s argument that the presumption of innocence had been removed from the

defendant violated the defendant’s constitutional rights and constituted reversible error.

Mahorney, 917 F.2d at 473-74. We conclude that the same result must be reached here.

¶22 It is our “inherent to duty . . . to protect individual rights set forth in the

constitution.” Finley, 276 Mont. at 134, 915 P.2d at 213. We therefore decline to accept

the State’s contention and the Dissent’s assertion that the prosecutor’s statements were

appropriate comments on the evidence undeserving of plain error review. Dissent, ¶ 37.

Rather, we conclude that the challenged comments made by the prosecutor constitute

prosecutorial misconduct from which the defendant is entitled to relief.




                                           10
                                    CONCLUSION

¶23   We determine that the prosecutor’s comments require reversal of Lawrence’s

conviction. Because we grant relief based on prosecutorial misconduct during closing

arguments, we do not reach the merits of the additional issues raised by Lawrence on

appeal. We reverse and remand for a new trial.



                                                 /S/ PATRICIA COTTER


We Concur:

/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA


Justice Beth Baker, concurring.

¶24   I agree with the Court’s determination to review for plain error the prosecutor’s

statement regarding the presumption of innocence because that statement implicated

Lawrence’s fundamental rights. The statement was improper and objectionable. But I

share the Dissent’s view that, when reviewed in context, the prosecutor’s closing

argument does not justify reversing the conviction.

¶25   The Court’s reliance on Mahorney is misplaced. Mahorney is distinguishable

because in that case “defense counsel vigorously objected both during voir dire and

closing argument to the prosecutor’s misconduct and was immediately and categorically

overruled in the presence of the jury.” Mahorney, 917 F.2d at 473. In reversing for a

new trial, the Tenth Circuit concluded that the trial court placed an “official imprimatur


                                           11
. . . upon the prosecution’s misstatements of law [which] obviously amplified their

potential prejudicial effect on the jury.” Mahorney, 917 F.2d at 473. “Moreover,” the

Tenth Circuit went on, “the trial court did not thereafter attempt to cure or minimize the

problem through admonishment or special instruction of the jury.” Mahorney, 917 F.2d

at 473. Thus, the Tenth Circuit concluded, “the factors that have permitted some courts

to overlook similar prosecutorial misrepresentations are not present in this case.”

Mahorney, 917 F.2d at 474.

¶26    The Court also fails to consider the State’s “alleged improper statements during

closing argument in the context of the entire argument.” State v. Makarchuk, 2009 MT

82, ¶ 24, 349 Mont. 507, 204 P.3d 1213. As the Dissent observes, the prosecutor focused

on the evidence presented at trial. In her rebuttal argument the prosecutor stated:

       The State of Montana has the burden of proving the guilt of the defendant
       beyond a reasonable doubt. And the State accepts that burden; I think it’s
       fair. It says: Proof beyond a reasonable doubt is proof of such convincing
       character that a reasonable person would rely and act upon that in the most
       important of his or her own affairs.

She then proceeded to explain reasonable doubt and to discuss the evidence and

inferences the jury properly should draw from it in order to reach a guilty verdict. I

would not reverse the conviction on the basis of the prosecutor’s single “presumption of

innocence” comment.

¶27    Despite my disagreement with the Court’s analysis, I join the decision to reverse

Lawrence’s conviction because I am convinced that this is the rare case in which the

cumulative effect of the errors he has shown on appeal prejudiced his right to a fair trial.




                                             12
¶28      Lawrence asserts the following additional errors: the prosecutor’s misstatement of

the law of the charged offense; defense counsel’s failure to object to the prosecutor’s

closing argument; defense counsel’s failure to object to an erroneous mens rea

instruction; and defense counsel’s failure to object to hearsay testimony.           I would

conclude that, when considered as a whole, these errors prejudiced Lawrence’s right to a

fair trial.1

¶29      The cumulative error doctrine “refers to a number of errors that, taken together,

prejudice a defendant’s right to a fair trial.” State v. Novak, 2005 MT 294, ¶ 35, 329

Mont. 309, 124 P.3d 182; accord State v. Giddings, 2009 MT 61, ¶ 100, 349 Mont. 347,

208 P.3d 363; State v. Bar-Jonah, 2004 MT 344, ¶ 108, 324 Mont. 278, 102 P.3d 1229.

Under the doctrine, “[r]eversal is required . . . once such accumulated errors are identified

as having prejudiced a defendant’s right to a fair trial.” Novak, ¶ 35. It is the defendant’s

duty to prove the existence of prejudice. Novak, ¶ 35.

¶30      In evaluating a cumulative error argument based on several enumerated errors,

courts

         must consider each such claim against the background of the case as a
         whole, paying particular weight to factors such as the nature and number of
         the errors committed; their interrelationship, if any, and combined effect;
         how the district court dealt with the errors as they arose . . . ; and the
         strength of the government’s case. The run of the trial may also be
         important; a handful of miscues, in combination, may often pack a greater
         punch in a short trial than in a much longer trial.




1
  I do not include in this list Lawrence’s argument regarding a witness’s passing reference to
“booking photos.”


                                             13
United States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir. 1993) (internal citations

omitted).

¶31   Here, over the course of a two-day trial, there were several interrelated errors that

had the combined effect of prejudicing Lawrence’s right to a fair trial. During closing

argument, the prosecutor implied that because Lawrence had not returned the coins

“immediately,” he had committed theft under § 45-6-301(1)(a), MCA. Though made in

response to the defense closing argument, this misstated the law, which requires a

purpose to deprive the owner of his property. The error, which otherwise could have

been a minor one, was compounded by the District Court’s instructions as to the mens rea

for theft. The court gave a result-based “knowingly” instruction and a conduct-based

“purposely” instruction.   This was not a correct statement of the law.        Theft is a

result-based crime because it requires a “purpose to deprive” the owner of property. See

State v. Shively, 2009 MT 252, ¶¶ 17-18, 351 Mont. 513, 216 P.3d 732 (concluding that

the State is not required to prove that a defendant knows the property is stolen to be

convicted under § 45-6-301, MCA, because the statute requires a knowing exertion of

control over the property with the purpose to deprive the owner). Even though the court

informed the jury of that element, it didn’t correctly define for the jury what “purpose”

meant in proving the elements of theft.

¶32   During the trial Officer Zapata testified that another officer advised him that

Lawrence “was possibly in Stewart Homes trying to sell stolen coins from the theft.” The

officer’s hearsay testimony was the only evidence about any intent Lawrence may have

had to sell the stolen property. Defense counsel did not object. Certainly, there is


                                           14
nothing constitutionally impermissible about the admission of hearsay evidence. Nor is

there a mandate for counsel to raise every objection that might have merit. But the State

has not argued that any hearsay exception applied, and an objection surely would have

been sustained. It was an important piece of evidence, particularly in light of the defense

theory—that Lawrence had not acted with the purpose of depriving the owner of the

coins. Lawrence was arrested less than two days after the theft occurred. He claimed at

trial that he helped Dubois remove the stolen coins from the home of an acquaintance

because there were children present. He testified that he was trying to figure out a way to

get the coins back to Wayne Miller’s shop without incident because he knew and

respected Miller’s wife, who runs a homeless shelter in Helena. This perhaps sounds like

an implausible story. And a jury would be free to reject his testimony. But that assumes

a trial safeguarded by the protections of the Constitution, including the effective

assistance of counsel, instructions that correctly state the applicable law, and the full

protection of the presumption of innocence.

¶33    Had any of the claimed mistakes been isolated in an otherwise error-free trial,

none would justify reversal.     But cumulatively, they resulted in a trial in which

inadmissible evidence was the only proof of an element of the offense on which the jury

was improperly instructed and which the prosecutor misstated in argument, along with

her unartful short-circuiting of the presumption of innocence. There was no plausible

strategic reason for counsel’s failure to seek exclusion of harmful evidence or to propose

a correct instruction on mental state when it was a key theory of the defense. See State v.

Kougl, 2004 MT 243, ¶ 20, 323 Mont. 6, 97 P.3d 1095 (concluding that defendant was


                                              15
given ineffective assistance of counsel, in part, because counsel “failed to use the law to

strike at the heart of the State’s case”). Lawrence has, in my view, sustained his burden

to show that the combination of miscues in his brief trial prejudiced his right to a fair

shake. I agree with the decision to give him a new trial.


                                                              /S/ BETH BAKER



Chief Justice Mike McGrath, dissenting.

¶34    The statement referenced by the majority was made as part of a closing argument,

the summation made by the attorneys following the conclusion of the presentation of

evidence to the jury. The statement was made at the end of that closing argument,

following her summation of all the evidence submitted.

¶35    Taken in context of the entire proceeding, it is clear that the prosecution was not

suggesting that the defendant was not entitled to the presumption of innocence, but rather

making the argument that the evidence she had just summarized would overcome that

presumption of innocence.

¶36    The jurors were properly instructed by the District Court Judge. Instruction No. 4

provided:

       The Defendant is presumed to be innocent of the charge against him. This
       presumption remains with him throughout every stage of the trial and
       during your deliberations on the verdict. It is not overcome unless from all
       the evidence in the case you are convinced beyond a reasonable doubt that
       the Defendant is guilty. The Defendant is not required to prove his
       innocence or present any evidence.

Significantly, Instruction No. 2 provided:


                                             16
       You should take the law in this case from my instructions alone. You
       should not accept anyone else’s version as to what the law is in this case.
       You should not decide this case contrary to these instructions, even though
       you might believe the law ought to be otherwise. Counsel, however, may
       comment and argue to the jury upon the law as given in these instructions.

¶37    Instructions are not only read aloud by the judge, but they are provided to the jury

in writing to be taken into deliberations for the purpose of review by the jurors. They

clearly provide that jurors should take the law from the instructions alone, and not accept

other versions of what the law is.          The prosecutor’s closing statement here was a

comment on the evidence presented and not intended to counter the law as it was clearly

given in the District Court instructions.

¶38    As the majority notes, the plain error doctrine should be used sparingly, and only

in cases where the alleged error may “result in a manifest miscarriage of justice, leave

unsettled the question of the fundamental fairness of the proceeding, or compromise the

integrity of the judicial process.” McDonald, ¶ 8. Viewed in context of the entire trial,1

particularly the instructions, this comment made by the prosecutor at the end of the

closing argument, after summarizing the evidence presented to the jury, does not meet the

standard required to invoke plain error review.

¶39    Closing argument is a unique portion of a trial. It is an opportunity for the

attorneys to present the case as they see it. And by its very nature, it is argument—not

evidence.    Jurors understand the function of argument.            The lawyers in the case



1
 The prosecutor also made it clear in her final closing argument that the State has the burden of
proving the charges beyond a reasonable doubt, and that they readily accept that challenge.


                                               17
understand the function of closing argument and objecting in a closing argument is

seldom necessary.

¶40   For the reasons stated above, I dissent.

                                                             /S/ MIKE McGRATH

Justice Jim Rice joins the Dissent of Chief Justice Mike McGrath.

                                                             /S/ JIM RICE




                                            18
