                                          No. 04-507

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 348


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

SANDRA JORDAN NEWMAN,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Twenty-First Judicial District,
                     In and for the County of Ravalli, Cause No. DC 2003-93
                     The Honorable Jeffrey H. Langton, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Kristina Neal, Appellate Defender Office, Helena, Montana

              For Respondent:

                     Hon. Mike McGrath, Montana Attorney General, Pamela P. Collins,
                     Assistant Attorney General, Helena, Montana; George H. Corn, Ravalli
                     County Attorney, William Fulbright, Deputy County Attorney, Hamilton,
                     Montana



                                                  Submitted on Briefs: July 13, 2005

                                                             Decided: December 28, 2005

Filed:

                     __________________________________________
                                       Clerk
¶1     Following a jury trial in the District Court for the Twenty-First Judicial District,

Ravalli County, Sandra Jordan Newman (Newman) was convicted of four drug-related

offenses. Newman appeals. We reverse the conviction and remand for a new trial.

¶2     Four members of this Court agree that Newman’s conviction should be reversed and

that this cause should be remanded for a new trial. There is not agreement amongst these

members as to the basis for reversal, however. Therefore, Justice James C. Nelson (joined

by Justice Patricia O. Cotter) and Justice W. William Leaphart (joined by Justice Brian M.

Morris) each specially and separately concur that this cause be reversed and remanded for

a new trial. The dispositive issues, facts and arguments will be addressed separately in each

special concurrence.

¶3     We reverse and remand for a new trial.




                                             2
Justice James C. Nelson specially concurs.

¶4    I concur in our decision to reverse and remand. The issues on appeal are:

¶5    1. Does Newman’s appellate brief adhere to the Montana Rules of Appellate

Procedure?

¶6    2. Should this Court review Newman’s claims pursuant to the doctrine of plain error

review?

¶7    3. Did the prosecutor’s closing argument deprive Newman of a fair trial?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶8    In June of 2003, Newman resided in her house in Stevensville, along with her two

children, Amber and Mike, and her brother, Randy Jordan (Jordan). Also living at the house

was a girl named Miranda, who was one of Amber’s friends. Arthur Adler, who went by the

nickname “Butch,” had previously lived at the house. He was Newman’s boyfriend, and he

passed away in May of 2003.

¶9    Jordan became a suspect in an investigation regarding a burglary at Ace Hardware in

Stevensville. Pursuant to this investigation, law enforcement officers executed a search

warrant on Newman’s house on June 12, 2003. Detective Scott Burlingham, of the Ravalli

County Sheriff’s Office, was among the officers who searched the house. During his search,

he found a bag of marijuana. He then stopped the search and applied for another search

warrant based on this discovery.      After securing the additional warrant, Detective

Burlingham continued the search, finding drug paraphernalia and more marijuana.




                                             3
¶10    As a result of the search, Newman was charged with criminal distribution of

dangerous drugs, criminal possession of dangerous drugs, criminal possession of dangerous

drugs with intent to distribute, and criminal possession of drug paraphernalia.

¶11    After the search of Newman’s house, law enforcement officers apprehended Jordan

and found marijuana in the car he was riding in. Jordan initially admitted that all the drugs

at Newman’s house belonged to him. However, he subsequently reached an agreement with

the State whereby he agreed to testify against Newman in exchange for the State’s promise

to recommend a thirty-year suspended sentence in his criminal prosecution. Pursuant to this

agreement, Jordan testified that the marijuana at Newman’s house belonged to her, and that

she sold marijuana frequently. Harold and Mary Jane Rice, Newman’s neighbors, testified

that people would come and go from Newman’s house frequently, but admitted that they did

not observe any drug transactions. Newman testified that heavy traffic at her home consisted

of her friends who were visiting out of concern for her well-being subsequent to Arthur

Adler’s death.

¶12    During the State’s closing argument, the prosecutor repeatedly criticized Newman for

her failure to call witnesses to corroborate her testimony. Newman’s counsel did not raise

an objection to these comments. Newman was found guilty on all four charges and was

subsequently sentenced. Newman now appeals, arguing that the prosecutor’s closing

argument amounted to misconduct which denied her a fair trial. Newman also argues that

her trial counsel rendered ineffective assistance.

                                       DISCUSSION

                                              4
¶13    1. Does Newman’s appellate brief adhere to the Montana Rules of Appellate

Procedure?



¶14    The State argues that Newman has failed to adhere to Rule 23(a)(4), M.R.App.P., in

asserting her claim of prosecutorial misconduct. Specifically, the State points to the

argument section of Newman’s brief, and contends that Newman has failed to cite the trial

transcript for the contested portions of the prosecutor’s closing argument. As a result, the

State asserts, this Court is “required to scour the transcript to find the alleged quotes.” Thus,

the State contends that we should refuse to address Newman’s arguments regarding

prosecutorial misconduct for failure to cite to the transcript.

¶15    Rule 23(a)(3), M.R.App.P., requires that an appellant’s brief contain a statement of

the facts which includes citations to the record. Rule 23(a)(4), M.R.App.P., requires that the

argument section of an appellant’s brief contain citations to the pages of the record relied on.

The statement of facts in Newman’s brief contains a verbatim recitation of the contested

portions of the prosecutor’s closing argument, accompanied by accurate citations to the

corresponding pages in the trial transcript. The argument section of Newman’s brief refers

to these same transcript excerpts, but does not cite to the transcript in each instance. While

the argument section of Newman’s brief could have been slightly more clear with additional

transcript citations, we certainly are not required to “scour the transcript to find the alleged

quotes,” as the State asserts. As such, I conclude that Newman has satisfied the requirement

of Rule 23(a)(4), M.R.App.P.

                                               5
¶16    2. Should this Court review Newman’s claims pursuant to the doctrine of plain

error review?

¶17    Newman argues that the prosecutor’s closing argument amounted to misconduct

which denied her a fair trial and due process by violating her right to be presumed innocent

and undermining the State’s burden to prove every element of the charged offenses beyond

a reasonable doubt. Acknowledging her trial counsel’s failure to object to the prosecutor’s

closing argument, Newman requests that we employ the doctrine of plain error to review her

contentions on appeal. The State argues that plain error review is inappropriate because

Newman’s claims are not supported by the record. As discussed hereinafter, I conclude that

Newman’s claims are, in fact, supported by the record.

¶18    Typically, the failure to timely object to an alleged impropriety in the district court

precludes this Court from reviewing the issue on appeal. Section 46-20-104(2), MCA.

However, the common law doctrine of plain error review provides that this Court may, in

certain circumstances, review a claim of alleged error even where no contemporaneous

objection was made in the district court. State v. Finley (1996), 276 Mont. 126, 137, 915

P.2d 208, 215 (overruled in part on other grounds by State v. Gallagher, 2001 MT 39, ¶ 21,

304 Mont. 215, ¶ 21, 19 P.3d 817, ¶ 21). As we have held:

       [T]his Court may discretionarily review claimed errors that implicate a
       criminal defendant’s fundamental constitutional rights, even if no
       contemporaneous objection is made and notwithstanding the inapplicability
       of the § 46-20-701(2), MCA, criteria, where failing to review the claimed
       error at issue may result in a manifest miscarriage of justice, may leave
       unsettled the question of the fundamental fairness of the trial or proceedings,
       or may compromise the integrity of the judicial process.

                                              6
Finley, 276 Mont. at 137, 915 P.2d at 215. Plain error review is rooted in “our inherent

power and paramount obligation to interpret Montana’s Constitution and to protect the

various rights set forth in that document.” Finley, 276 Mont. at 137, 915 P.2d at 215.

However, we do not lightly excuse the failure to raise a contemporaneous objection. Rather,

we utilize plain error review sparingly, on a case-by-case basis. Finley, 276 Mont. at 138,

915 P.2d at 215.

¶19    “The right to a fair trial is a fundamental liberty secured by the Fourteenth

Amendment” to the United States Constitution. Estelle v. Williams (1976), 425 U.S. 501,

503, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126. “The presumption of innocence, although not

articulated in the Constitution, is a basic component of a fair trial under our system of

criminal justice.” Estelle, 425 U.S. at 503, 96 S.Ct. at 1692. “[T]he Due Process Clause

protects the accused against conviction except upon proof beyond a reasonable doubt of

every fact necessary to constitute the crime with which he is charged.” In re Winship (1970),

397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368. Moreover, the standard of proof

beyond a reasonable doubt “plays a vital role in the American scheme of criminal procedure”

in that it “provides concrete substance for the presumption of innocence.” In re Winship,

397 U.S. at 363, 90 S.Ct. at 1072.

¶20    In recognition of the foregoing principles, I conclude that the errors alleged by

Newman implicate her fundamental constitutional right to due process under the Fourteenth

Amendment to the United States Constitution, and Article II, Section 17, of the Montana

Constitution. Further, I conclude that these alleged errors, if left unaddressed by this Court,

                                              7
would bring into question the fundamental fairness of Newman’s trial. Accordingly, I

conclude that plain error review is appropriate in this case.

¶21    3. Did the prosecutor’s closing argument deprive Newman of a fair trial?

¶22    As noted above, Newman argues that the prosecutor’s closing argument amounted to

misconduct which denied her a fair trial and due process by violating her right to be

presumed innocent and undermining the State’s burden to prove every element of the

charged offenses beyond a reasonable doubt. Newman also argues that she was denied a fair

trial when the prosecutor commented on matters not in evidence. In response, the State

contends that the prosecutor did not specifically say Newman was responsible for

establishing her innocence, and that the jury instructions properly explained the presumption

of innocence. The State also argues that the prosecutor’s comments were appropriate

because he merely commented on the evidence as a whole, and suggested inferences which

could be drawn therefrom. Finally, the State argues that Newman has failed to demonstrate

prejudice resulting from the prosecutor’s comments.

¶23    In order to afford a defendant the due process guaranteed under both the United States

Constitution and the Montana Constitution, the State must prove every element of a charged

offense beyond a reasonable doubt. State v. McCaslin, 2004 MT 212, ¶ 24, 322 Mont. 350,

¶ 24, 96 P.3d 722, ¶ 24. This burden of proof is closely related to the presumption of

innocence, as demonstrated by § 46-16-204, MCA, which provides that “[a] defendant in a

criminal action is presumed to be innocent until the contrary is proved, and in case of a




                                              8
reasonable doubt whether the defendant’s guilt is satisfactorily shown, the defendant must

be found not guilty.”

¶24    Our prior holdings have acknowledged the close relation between these two legal

principles, and have consistently recognized the presumption of innocence as an essential

component of a criminal prosecution. In State v. Howell (1901), 26 Mont. 3, 5, 66 P. 291,

292, this Court stated that a criminal defendant

       is always entitled to have the jury take into consideration the presumption of
       innocence which the law throws about him. . . . This presumption comes to
       the aid of the defendant at every stage of the case, and is finally rebutted and
       overturned only by evidence establishing every element of the crime charged
       to the satisfaction of the jury beyond a reasonable doubt.

Similarly, in State v. Martin (1903), 29 Mont. 273, 279, 74 P. 725, 727, this Court said that

the presumption of innocence

      is the safeguard which the law casts around all persons accused of crime, and
      the defendant cannot be reached by a verdict of guilty until this safeguard is
      entirely removed. This removal can only be accomplished by evidence which
      satisfies the minds of the jurors beyond a reasonable doubt. The presumption
      of innocence is in effect the very thing against which the prosecution is
      directed.
Again, in State v. Gilbert (1951), 125 Mont. 104, 109, 232 P.2d 338, 341, this Court stated

that the “presumption of innocence surrounds the defendant at every step in the trial and to

its benefits he is entitled in the determination of every fact by the jury.”

¶25    In State v. Williams (1979), 184 Mont. 111, 112, 601 P.2d 1194, 1195, this Court

addressed the issue of whether the trial court’s refusal to give the defendant’s requested

instruction on the presumption of innocence resulted in a violation of his right to a fair trial

as secured by the due process guarantee of the United States Constitution and the Montana

                                               9
Constitution. Acknowledging the presumption of innocence as a foundational element of

criminal law, this Court held that “even though the jury was properly instructed as to the

burden of proof beyond a reasonable doubt, when he so requests, the defendant is still

entitled to an instruction as to the presumption of innocence which exists in his favor.”

Williams, 184 Mont. at 112, 601 P.2d at 1195. Further, this Court held to the “per se rule

that an instruction on the presumption of innocence is required in every case when a timely

request has been made.” Williams, 184 Mont. at 114, 601 P.2d at 1196.

¶26    Other opinions from this Court have also acknowledged the paramount importance

of the presumption of innocence. In State v. Nicholls (1982), 200 Mont. 144, 150, 649 P.2d

1346, 1349, this Court referred to the presumption of innocence as a “constitutional

protection.” Similarly, in City of Missoula v. Shea (1983), 202 Mont. 286, 294, 661 P.2d

410, 414, this Court referred to the presumption of innocence as a “constitutional due

process requirement.” It is apparent that our case law falls in line with Estelle, wherein the

United States Supreme Court stated that although the presumption of innocence is not

articulated in the United States Constitution, it is a “basic component of a fair trial” as

guaranteed by the Fourteenth Amendment. Estelle, 425 U.S. at 503, 96 S.Ct. at 1692. While

our cases have consistently upheld the presumption of innocence as a fundamental element

of Montana’s criminal law, this Court has not adopted the language of Estelle to explicitly

designate the presumption as a component of due process under Montana’s Constitution.

Hence, I conclude that the presumption of innocence, although not articulated in the




                                             10
Montana Constitution, is an essential component of a fair trial as secured by the due process

guarantee of Article II, Section 17, of the Montana Constitution.

¶27    I now turn to the merits of Newman’s argument. During the State’s closing, the

prosecutor presented the following argument to the jury:

       What I think is very interesting is, ask yourself who did we not hear from.
       The Defendant had every opportunity to present whatever she wanted to
       present, and who did we not hear from? We did not hear from Amber, her
       daughter. We did not hear from Mike, her son. We did not hear from
       Miranda, the other girl who lived there for the last three years. George Garcia,
       we didn’t hear from George Garcia. Did we hear from Doug in Drummond?
       Didn’t hear from Doug.
               She said, of course, there was a lot of traffic after Butch died because
       they were so concerned for me. . . .
               . . . [W]here are those so concerned friends now to say, I wasn’t buying
       drugs? We didn’t hear from any of that [sic]. I’d suggest it’s because they’ve
       flown the coop. The Defendant is not there anymore. These aren’t concerned
       friends. They’re people who she was supplying.
               . . . The Defendant knew that any one of those people could have been
       there . . . . Amber could have been here to say, yeah, I got in trouble for
       drugs, but, man, my mom never does drugs. They’re not here because they
       can’t say it. They’re not here because they can’t come in and testify that way
       and tell the truth.
               If we look at all that, I think we have laid out a case for the four crimes
       that were charged. . . .
               ....
               Where was Amber to say, Uncle Randy is lying to you when [sic] says
       we sat around with my friends and light up whenever mom did. Because
       that’s what happened. Probably with that red bong sitting in the front room
       when the detectives showed up.

¶28    As the presumption of innocence “surrounds the defendant at every step in the trial,”

Gilbert, 125 Mont. at 109, 232 P.2d at 341, the prosecutor was not at liberty to undermine

the presumption during the State’s closing argument. However, the prosecutor used this

stage of the proceeding to repeatedly criticize Newman for failing to present witnesses to

                                               11
corroborate her testimony. Additionally, the prosecutor asked the jury to consider this

failure in rendering a verdict, stating “[t]hey’re not here because they can’t come in and

testify that way and tell the truth. If we look at all that, I think we have laid out a case for

the four crimes that were charged.”

¶29    These arguments suggested to the jury that guilt could be determined, in part, based

on Newman’s failure to call witnesses.           This suggestion directly contravened the

presumption of innocence. Further, by asserting that Newman’s defense lacked merit for her

failure to call witnesses, the prosecutor’s comments suggested that Newman had some

obligation to present evidence. This suggestion also directly contravened the presumption

of innocence, pursuant to which Newman had absolutely no obligation to prove any facts.

Moreover, the prosecutor’s argument improperly shifted the jury’s attention from the State’s

substantive evidence to the lack of affirmative evidence presented by Newman. This further

undermined the presumption of innocence and diminished the State’s burden of proof in the

mind of any juror who took this argument seriously.

¶30    The same portion of the prosecutor’s closing argument which undermined Newman’s

constitutional right to the presumption of innocence, was also improper because it contained

references to matters not in evidence. We have held that it is improper for a prosecutor to

comment on evidence not of record during closing argument. State v. Gladue, 1999 MT 1,

¶ 14, 293 Mont. 1, ¶ 14, 972 P.2d 827, ¶ 14. Here, the prosecutor asserted that some of

Newman’s acquaintances and family members with knowledge relevant to the case were not

at the trial because they had “flown the coop” or could not testify truthfully. However, there

                                               12
was no evidence regarding the willingness of these individuals to appear at trial, and no

evidence regarding their willingness to testify truthfully.

¶31    In Berger v. United States (1935), 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314, the

United States Supreme Court discussed the special responsibility of a prosecutor and the

harm potentially resulting from improper prosecutorial efforts. The Court stated:

       [W]hile [a prosecutor] may strike hard blows, he is not at liberty to strike foul
       ones. It is as much his 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.
              It is fair to say that the average jury, in a greater or less degree, has
       confidence that these obligations, which so plainly rest upon the prosecuting
       attorney, will be faithfully observed. Consequently, improper suggestions,
       insinuations and, especially, assertions of personal knowledge 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. Recognizing the special influence a prosecutor has

with a jury based on his or her status as a representative of the State, I am reluctant to

condone any prosecutorial argument that undermines the presumption of innocence.

However, this Court will not presume that a defendant suffers prejudice from improper

prosecutorial comments. Gladue, ¶ 27. Rather, a defendant must demonstrate, based on the

record, that the prosecutor’s improper comments prejudiced his or her right to a fair trial.

Gladue, ¶ 27. In determining whether prejudice resulted, the prosecutor’s improper

comments must be viewed in the context of the case in its entirety. Gladue, ¶ 27.

¶32    Here, I conclude that Newman was prejudiced because the prosecutor aggressively

suggested that the jury disregard the presumption of innocence, thereby creating a risk that

she would be convicted on that basis. The fact that the prosecutor did not explicitly state that

                                              13
Newman was responsible for establishing her innocence does not alleviate the effect of this

improper argument. Nor do proper jury instructions cure such an error. I simply can not

excuse a prosecutorial argument that so forcefully contravenes a fundamental constitutional

protection.

¶33    Accordingly, I conclude that Newman was denied a fair trial because the prosecutor’s

closing argument effectively undermined her constitutional right to the presumption of

innocence as secured by the due process guarantee of the Montana Constitution.

¶34    That being said, I address Justice Warner’s contention that “the arguments in question

were not at all aimed at the presumption of innocence,” but were “an attack on Newman’s

credibility.”   My opinion is based on the prosecutor’s words as they appear in the

transcript--the words which were spoken to the jury. The dissent, however, resorts to

speculation about the prosecutor’s intent, spinning the closing argument as a constitutionally

harmless swipe at Newman’s credibility. However, even if it were possible to accurately

discern a pure motive behind the prosecutor’s comments, I could not hold that it would cure

the serious constitutional problem here. Regardless of where the prosecutor “aimed” with

these comments, they struck at the very heart of a fundamental constitutional protection. No

pure motive can serve to remedy such a violation. Thus, I focus on the actual words used.

¶35    I take exception to the dissent’s baseless accusation that I have taken the prosecutor’s

comments “out of context.” Perhaps this charge results from my refusal to inject the

transcript with speculation regarding the prosecutor’s motives. Of course, I have focused

on the entirety of the contested comments in the context in which they were used. Further,

                                              14
I have reviewed the closing arguments in full, and considered them in light of the trial as a

whole. Indeed, it is the dissent that supplies the context--by way of speculation--which

supports a different conclusion. Moreover, I can not envision a context that would justify

the suggestion, as was made by the prosecutor, that a jury may legitimately consider a

defendant’s failure to present witnesses as a strike against him or her. This notion is

absolutely contrary to the presumption of innocence.

¶36    My consideration of the context leads me to note that the dissent’s position is

undermined by the fact that Newman’s counsel recognized the prosecutor’s comments as an

attack on the presumption of innocence, and responded accordingly in closing. As the

dissent notes, Newman’s counsel restated the prosecutor’s comments and immediately

responded by explaining the presumption of innocence. Hence, I am simply recognizing the

same impropriety which defense counsel recognized during closing.

¶37    The dissent goes on to suggest that even if the prosecutor’s comments were an attack

on the presumption of innocence, defense counsel’s closing argument, together with the jury

instructions regarding the State’s burden of proof, would provide a sufficient remedial effect.

I can not agree. To take such a position would allow juries to be subjected to conflicting

messages regarding the presumption of innocence. This, in turn, would force defendants to

beg the jury to rely on the instructions rather than the prosecutor’s arguments. Of course,

defendants should not have to struggle for the right to be presumed innocent. That fight was

waged, and won, long ago. Estelle, 425 U.S. at 503, 96 S.Ct. at 1692. As this Court has

said, the presumption of innocence “is in effect the very thing against which the prosecution

                                              15
is directed.” Martin, 29 Mont. at 279, 74 P. at 727. Thus, a prosecutor must overcome the

presumption by presenting persuasive evidence and arguments; not by suggesting that the

defendant has some obligation to justify the presumption.

¶38    Moreover, to the extent that the closing argument can be construed as an attack on

Newman’s credibility, its status as such can not render it constitutionally valid. In other

words, an attack on the presumption of innocence is not rendered acceptable just because it

is also an attack on the defendant’s credibility. It was the prosecutor’s job to tailor any

attacks on Newman’s credibility so as not to undermine any of her fundamental

constitutional rights.

¶39    The dissent also cites this Court's previous holding that it is proper for the prosecution

to comment on conflicts and contradictions in testimony, as well as to comment on the

evidence presented and suggest to the jury inferences which may be drawn therefrom.

Gladue, ¶ 15. However, the prosecutor’s suggestion that someone not present at trial might

say something in contradiction to Newman’s testimony simply does not qualify as a

comment on conflicts or contradictions in testimony. Nor was this suggestion a comment

on the evidence presented. Rather, it was a comment on evidence not presented at trial. As

such, I do not find this precedent applicable.

¶40    Finally, I share the dissent’s concern with limiting the use of plain error review.

However, this Court must be mindful to employ a similar level of concern in evaluating

alleged constitutional violations.




                                              16
¶41    Justice Rice’s dissent maintains that the prosecutor’s argument was merely a comment

regarding other individuals’ failure to testify.       Consequently, the dissent finds the

prosecutor’s comments acceptable under State v. Rodarte, 2002 MT 317, 313 Mont. 131, 60

P.3d 983, wherein we stated that “the prosecution is permitted to point out facts at issue

which could have been controverted by persons other than the defendant, but were not.”

Rodarte, ¶ 14. The short portion of the prosecutor’s argument which the dissent quotes

could arguably be considered acceptable under Rodarte if viewed in isolation. However, I

find Rodarte irrelevant when viewing the prosecutor’s arguments in their entirety.

¶42    The dissent’s analysis ignores pertinent parts of the trial transcript. First, it ignores

the fact that the prosecutor repeatedly criticized Newman personally for failing to call

witnesses to corroborate her testimony. The prosecutor argued Newman “knew that any one

of those people could have been there,” that she “had every opportunity to present whatever

she wanted,” and that she nonetheless failed to present numerous witnesses who could have

corroborated her testimony. Second, the dissent’s analysis ignores the fact that the

prosecutor then proceeded to ask the jury to consider Newman’s failure to call such

witnesses in rendering a verdict, stating “[i]f we look at all that, I think we have laid out a

case for the four crimes that were charged.” These arguments placed unwarranted blame

squarely on Newman for failing to present witnesses. Thus, I can not agree that this was

merely an attack on Newman’s testimony or an attack upon “the failure of persons to testify

who could have controverted the State’s evidence,” as the dissent asserts.




                                              17
¶43    The holding of Rodarte can only be decisive in this case if we ignore significant

portions of the prosecutor’s closing argument, and I will not do so. Nor would I expand

Rodarte so as to condone the prosecutorial argument at issue here. The Rodarte rule, by its

plain terms, simply does not give prosecutors license to suggest to a jury that a defendant has

some duty to call witnesses to corroborate his or her testimony. Nor can Rodarte be

construed as a rule allowing prosecutors to ask a jury to consider such a failure as evidence

adverse to a defendant.

¶44    As part of its analysis, the dissent asserts that Newman “had not relied upon her

presumption of innocence--she had instead affirmatively offered an alternate explanation of

the State’s evidence.” I must respond to this statement because the dissent proffers it in a

way which suggests that a defendant’s decision to testify has some bearing on the protection

provided by the presumption of innocence. Particularly, it suggests that the presumption of

innocence somehow had less force here because Newman did not “rely” upon it. Further,

it suggests that Newman had to choose between maintaining the full benefit of the

presumption on one hand, and testifying in her own defense on the other hand.

¶45    Of course, we can only speculate as to whether Newman “relied” on the presumption

of innocence. But even if she and her counsel completely disregarded the presumption, its

constraints upon the prosecution were not thereby rendered any less stringent. While the

dissent attaches some significance to Newman’s decision to testify, it cites no authority for

the notion that this fact should have some bearing on the analysis regarding the presumption

of innocence. I reject this notion, as it is well established that the presumption is overcome

                                              18
only by proof beyond a reasonable doubt of every element of a charged offense. Section

46-16-204, MCA; Howell, 26 Mont. at 5, 66 P. at 292; Martin, 29 Mont. at 279, 74 P. at 727.

Thus, there is nothing inconsistent in clinging steadfastly to the presumption of innocence

while also testifying in one’s own defense. To reason otherwise would be to create new

legal precedent repugnant to the presumption of innocence.

¶46    Finally, the dissent claims that defense counsel’s failure to object to the prosecutor’s

argument was a “choice to take the issue from the judge for his own purposes.” Any

knowledge the dissent may possess regarding defense counsel’s thought process at trial is

based on pure speculation and is not properly considered by this Court, as the record before

us discloses nothing in this regard. Moreover, even if it were possible to accurately divine

defense counsel’s motives, the dissent cites no authority for the proposition that such an

improper intent should impact the analysis regarding the presumption of innocence.

                                      CONCLUSION

¶47    In conclusion, I note that Newman claims her trial counsel provided ineffective

assistance when he failed to object to the prosecutor’s closing argument and failed to offer

an accomplice jury instruction. Having already discussed the dispositive issue, I will not

address these arguments. Counsel can request a proper accomplice instruction in the new

trial or refrain from doing so after consulting with Newman.

¶48    Having concluded that the prosecutor’s closing argument deprived Newman of a fair

trial, I concur in our decision to reverse and remand for a new trial.

                                                          /S/ JAMES C. NELSON

                                              19
Justice Patricia O. Cotter joins in the special concurrence of Justice James C. Nelson.

                                                         /S/ PATRICIA O. COTTER

Justice W. William Leaphart specially concurs.

¶49    I would reverse the conviction due to defense counsel’s ineffective assistance in

failing to request an accomplice jury instruction pursuant to § 26-1-303(4), MCA.

¶50    Section 26-1-303(4), MCA, requires that, when proper, the court must instruct the

jury that “the testimony of a person legally accountable for the acts of the accused ought to

be viewed with distrust.” The State argues that this provision does not apply to Newman’s

case because Jordan did not act as an accomplice. Section 45-2-302(3), MCA, states that

“[a] person is legally accountable for the conduct of another when either before or during the

commission of an offense with the purpose to promote or facilitate such commission, he

solicits, aids, abets, agrees, or attempts to aid such other person in the planning or

commission of the offense.” In addition, this Court defines “[a] true accomplice [as] one

who knowingly, voluntarily and with common intent with the principal offender unites in the

commission of a crime . . . . One may become an accomplice by being present and joining

in the criminal act, by aiding and abetting another in its commission.” State v. Nordahl

(1984), 208 Mont. 513, 517, 679 P.2d 241, 243 (citations omitted).

¶51    Jordan lived with Newman and testified to selling drugs on her behalf. Initially,

Jordan even claimed all the drugs belonged to him; a story he did not change until cutting a

deal with the State to testify against Newman in exchange for a suspended sentence. In




                                             20
knowingly selling drugs on Newman’s behalf, Jordan satisfies the statutory definition of “a

person legally accountable” and this Court’s definition of an “accomplice.”

¶52    Newman argues that she received ineffective assistance because her counsel failed to

request an accomplice jury instruction. “A criminal defendant is denied effective assistance

of counsel if: (1) his counsel’s conduct falls short of the range reasonably demanded in light

of the Sixth Amendment of the United States Constitution; and (2) counsel’s failure is

prejudicial.” State v. Rose, 1998 MT 342, ¶ 12, 292 Mont. 350, ¶ 12, 972 P.2d 321, ¶ 12

(citations omitted). See also Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674. The Strickland test “requires the defendant to establish prejudice by

demonstrating that, but for counsel’s errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in the

outcome, but it does not require that a defendant demonstrate that he would have been

acquitted.” State v. Kougl, 2004 MT 243, ¶ 25, 323 Mont. 6, ¶ 25, 97 P.3d 1095, ¶ 25

(quotations and citations omitted).

¶53    Before examining an ineffective assistance of counsel claim on direct appeal, we

generally look to the record to see whether we can answer “why” counsel did or did not

perform as alleged. Kougl, ¶ 14. If we can answer “why,” we will address the issue on

appeal. If the claim is based on matters outside the record, we will refuse to address the

issue on appeal and allow the defendant to file a postconviction proceeding. Kougl, ¶ 14;

State v. Grixti, 2005 MT 296, ¶ 27, 329 Mont. 330, ¶ 27, ___ P.3d ___, ¶ 27. “Sometimes,

however, it is unnecessary to ask ‘why’ in the first instance”—for example, “when counsel


                                             21
is faced with an obligatory, and therefore non-tactical, action.” Kougl, ¶ 15. In such a case,

“the question is not ‘why’ but ‘whether’ counsel acted.” Kougl, ¶ 15. In my view, the

circumstances of Newman’s trial qualify as such a case. The prosecution primarily relied

on testimony from Newman’s brother, Randy Jordan, at trial. Initially, the State charged

Jordan with criminal possession of dangerous drugs after police searched Newman’s home

and Jordan claimed ownership of all of the drugs uncovered. Before the trial, however,

Jordan, looking at thirty years in prison, agreed to testify against Newman in exchange for

thirty years of probation. Pursuant to this agreement, Jordan testified that the marijuana in

Newman’s house belonged to Newman, that she sold marijuana frequently, and that he too

sold drugs on her behalf. A review of the trial record provides no explanation as to why

defense counsel did not ask for an accomplice jury instruction with regard to Jordan’s

testimony. Given the importance of Jordan’s testimony to the State’s case, and the

significant benefit he received by testifying against his sister, the more appropriate question

is whether counsel acted. In light of Jordan’s alleged complicity in Newman’s conduct,

defense counsel had an obligation to request the instruction that the jury view Jordan’s

accomplice testimony with suspicion.

¶54    If, for tactical reasons, counsel believes such an instruction would be inappropriate,

counsel should make a record of that position.1 In the absence of a strategic reason being



       1
        Although defense counsel is not normally required to make a record of why he or
she is not requesting a jury instruction, such a procedure is logical when a particular
instruction, aimed at protecting the defendant, is statutorily required in “appropriate”
circumstances. Section 26-1-303, MCA.

                                              22
apparent on the record or a statement on the record from defense counsel specifically

declining such an instruction, the language of § 26-1-303(4), MCA, requires that when a

witness purports to have been an accomplice of the accused, effective defense counsel must

request an accomplice instruction.

¶55    In Kougl we faced the same issue presented here—that is, whether defense counsel’s

failure to ask that the jury be instructed to view an accomplice’s testimony with suspicion

constituted ineffective assistance of counsel. We held that since the State’s case against the

defendant was largely based on the credibility of three accomplices, “trial counsel failed to

use the law to strike at the heart of the State’s case” by not requesting the accomplice jury

instruction. Kougl, ¶ 20. In light of this failure, Kougl experienced prejudice “because the

instructions would have conveyed to the jurors that the law commanded them to view the

State’s crucial evidence with distrust such that there is a reasonable probability they would

have arrived at a different outcome.” Kougl, ¶ 26. We concluded that “trial counsel could

have no plausible explanation for not asking for instructions on accomplice testimony,” and

therefore her performance was deficient, satisfying the first prong of the Strickland test.

Kougl, ¶ 24. In addition, we noted that Kougl’s trial counsel further failed him by not

requesting an instruction that such testimony must be corroborated pursuant to § 46-16-213,

MCA. “The corroborating evidence need not be robust in such a situation, but it must raise

more than a suspicion of the defendant’s involvement in, or opportunity to commit, the crime

charged.” Kougl, ¶ 21 (citations omitted).




                                             23
¶56    It should be noted that in Kougl we distinguished State v. Johnson (1993), 257 Mont.

157, 848 P.2d 496, 499, a case involving the same issue: whether counsel incorrectly failed

to request a jury instruction providing that accomplice testimony must be viewed with

distrust. We determined in Kougl that because “Johnson claimed that he was not at the scene

of the crime, . . . asking the jury to view his accuser as an ‘accomplice’ would contradict this

defense”; thus we held that a record-based justification existed for why Johnson’s counsel

did not ask for an instruction on accomplice testimony, whereas no such record-based

justification existed in Kougl. Kougl, ¶ 18 (citing Johnson, 257 Mont. at 163, 848 P.2d at

499). I think we need to clarify the Johnson rationale. To hold that an accomplice

instruction is inappropriate when a defendant maintains his innocence is illogical. Because

instructions only come into play at trial and no trial occurs unless the defendant maintains

his innocence, under the Johnson rationale, an accomplice instruction would never be

strategically appropriate, as it would always contradict the assertion of innocence. The

unwritten assumption in Johnson is that a defendant who requests an accomplice instruction

admits to having committed a criminal act in concert with the accomplice.2 In my view,

however, requesting an accomplice instruction in fact supports a defendant’s position of

innocence by directing the jury to view with distrust the accusations of a witness who

purports to have acted in concert. I would therefore qualify the Johnson rationale and



       2
        This concern assumes that the instruction is couched in terms of an “accomplice.”
There is, however, no need to use the offending term “accomplice” in the jury instruction.
Notably, the statute at issue does not use the term “accomplice.” Rather, it speaks in
terms of a person “legally accountable.” Section 26-1-303(4), MCA.

                                              24
require, pursuant to § 26-1-303(4), MCA, that when a witness purports to have been an

accomplice, defense counsel must request an accomplice instruction or state on the record

that, for tactical reasons, the defendant does not want the instruction given; in the words of

§ 26-1-303, MCA, counsel must make a record that, given the testimony, the case at hand

is not a “proper occasion” for such an instruction. State v. Hall, 2003 MT 253, ¶ 30, 317

Mont. 356, ¶ 30, 77 P.3d 239, ¶ 30.

¶57    With regard to this case, Jordan’s testimony that he helped Newman sell drugs

qualified him as a person “legally accountable for the acts of the accused.” Section 26-1-

303(4), MCA. Given the importance of Jordan’s testimony in convicting Newman, trial

counsel had an obligation to request an accomplice instruction directing the jury to view

Jordan’s testimony with distrust. If the jury had received such an instruction, as well as been

directed to find corroborating evidence for Jordan’s testimony, there is a reasonable

probability it would have returned a not guilty verdict. In accord with our decision in Kougl,

I can discern no tactical advantage to the trial counsel’s failure to request the appropriate

accountability jury instructions.

¶58    I would reverse the conviction and remand for a new trial.



                                                   /S/ W. WILLIAM LEAPHART


Justice Brian Morris joins the specially concurrence of Justice Leaphart.



                                                   /S/ BRIAN MORRIS


                                              25
26
Justice Jim Rice dissenting.

¶59    Reversal of this matter for the reasons stated in Justice Nelson’s opinion is

unnecessary and condones abuse of the legal system. I dissent.

¶60    In State v. Rodarte, 2002 MT 317, 313 Mont. 131, 60 P.3d 983, we addressed the

permissible scope of a prosecutor’s closing argument and held:

       While it is improper for the prosecution to comment on the failure of a
       defendant to testify on his own behalf, the prosecution is permitted to point out
       facts at issue which could have been controverted by persons other than the
       defendant, but were not.

Rodarte, ¶ 14. Here, notwithstanding defense counsel’s perception, the prosecutor did not

comment on the Defendant’s failure to testify, but rather the failure of “persons other than

the defendant” to testify.

¶61    This distinction is further understood when the context of the prosecutor’s comments

is considered. The prosecutor had offered evidence of the traffic to and from Defendant’s

home in support of the drug distribution charges. To defeat this evidence, the Defendant

testified that these frequent visits were made by well-wishers who were giving her support

in her time of bereavement. Thus, the Defendant had not relied upon her presumption of

innocence—she had instead affirmatively offered an alternate explanation of the State’s

evidence. It was this proffered defense which the prosecutor commented upon, including the

failure of those in Defendant’s household to controvert the State’s facts:

       We did not hear from Amber, her daughter. We did not hear from Mike, her
       son. We did not hear from Miranda, the other girl who lived there for the last
       three years. George Garcia, we didn’t hear from George Garcia. Did we hear
       from Doug in Drummond? Didn’t hear from Doug. [Emphasis added.]


                                              27
Thus, arguably, the prosecutor’s attack was not made upon Defendant’s presumption of

innocence, but upon the defense and testimony which the Defendant had affirmatively

offered, and the failure of persons to testify who could have controverted the State’s

evidence.

¶62    These circumstances illustrate the impropriety of exercising plain error review in this

case. Defense counsel elected not to object to the prosecutor’s closing for a reason: so he

could use the prosecutor’s comments against the State during his own closing argument.

Thus, he sat quiet during the prosecutor’s closing, when an objection would have

immediately brought the matter to the judge’s attention, and instead sought to discredit the

State’s case by raising the issue in closing. If it would have worked, and the jury had

acquitted, this case would not be before us.

¶63    However, it failed, and now Defendant wants to have her cake and eat it too. This

Court should not countenance such manipulations and abuse of the legal system. The trial

judge could well have addressed the problem at the time, but it was defense counsel’s choice

to take the issue from the judge for his own purposes. When a defendant participates in trial

error, he cannot then challenge the error on appeal. “We will not put a district court in error

for an action in which the appealing party acquiesced or actively participated.” State v.

Harris, 1999 MT 115, ¶ 32, 294 Mont. 397, ¶ 32, 983 P.2d 881, ¶ 32 (citing State v. Clay,

1998 MT 244, ¶ 24, 291 Mont. 147, ¶ 24, 967 P.2d 370, ¶ 24).

¶64    This dissent is criticized as based on “pure speculation.” See ¶ 46. To the contrary,

we need not speculate that the defense counsel was aware of the presumption of innocence


                                               28
issue—counsel used the issue in his closing. We need not speculate that defense counsel

decided not to object to the prosecution’s closing—the record clearly demonstrates that no

objection was made. We need not speculate that defense counsel used the issue to attempt

to persuade the jury to acquit the defendant—the record clearly illustrates this as well. This

issue was not properly preserved for appeal because defense counsel chose instead to gamble

with it at trial. Indeed, we need only ask why plain error review should be exercised in a

situation in which the error is not “plain,” but, rather, where the defense clearly used the

issue for its own purposes at trial and now seeks to avoid the consequences of that decision

on appeal.

¶65    I now turn to Justice Leaphart’s concurring opinion, which concludes that reversal is

appropriate because “defense counsel had an obligation to request the instruction that the

jury view Jordan’s accomplice testimony with suspicion.” ¶ 53.

¶66    Section 26-1-303, MCA (emphasis added), provides that the “jury is to be instructed

by the court on all proper occasions” that the testimony of “a person legally accountable for

the acts of the accused” is to be viewed with distrust. We held in State v. Johnson (1993),

257 Mont. 157, 848 P.2d 496, that the plain wording of the statute does not require this

instruction to be given in every case involving an accomplice, and overruled the contrary

holding in State v. Laubach (1982), 201 Mont. 226, 653 P.2d 844, as conflicting with the

statute. Johnson, 257 Mont. at 162-63, 848 P.2d at 499. We recently explained in Kougl

why an accomplice instruction was not appropriate in Johnson:

       [I]n Johnson there was a record-based justification for not asking for an
       instruction on accomplice testimony. Johnson claimed that he was not at the

                                             29
       scene of the crime, and asking the jury to view his accuser as an “accomplice”
       would contradict this defense. Johnson, 257 Mont. at 163, 848 P.2d at 499.
       Therefore, there was a tactical reason for not asking for the jury instruction.
       It was proper for this Court to ask “why” and then answer that question from
       the record.

Kougl, ¶ 18. Concluding that Kougl’s trial counsel “could have no plausible explanation”

for failing to request an accomplice instruction under the evidence in that case, we

distinguished Johnson and reversed Kougl’s conviction. Kougl, ¶¶ 24, 27.

¶67    The concurring opinion suggests that we revisit Johnson, believing its rationale

“illogical,” because “an accomplice instruction would never be strategically appropriate, as

it would always contradict the assertion of innocence” by a defendant who goes to trial.

¶ 56. However, I believe this case illustrates well why the Johnson rule should be retained,

and that there is clear reason why the statute does not require the instruction to be given in

all such cases.

¶68    First, Newman and Jordan were not charged with the same offenses at the time of

trial. The concurring opinion points to Jordan’s testimony that he helped Newman sell drugs

in an effort to link Jordan to the charges against Newman for criminal distribution of

dangerous drugs and possession of drugs with intent to distribute. However, Jordan was

charged with theft, drug possession, possession of drug paraphernalia and aggravated

burglary, none of which involved distribution of or the intent to distribute drugs. Thus, the

parties were not accomplices by virtue of the respective charges filed against them.




                                             30
¶69    Second, and more critically, is the evidence. The sum total of Jordan’s testimony

upon which Newman and the concurring opinion rely for the proposition that Jordan “helped

Newman sell drugs,” ¶ 57, consists of the following:

       Defense Counsel: And were you selling drugs?

       Jordan: No, not really, I don’t think. Maybe once or twice for her.

¶70    This brief, ambiguous comment is insufficient to support an assertion that Jordan is

“legally accountable for the acts of the accused.” Section 26-1-303(4), MCA. Contrary to

Newman’s characterization, Jordan testified that he did not sell any drugs, or, at best, that

“maybe” he had, but was not sure. How different this case is from Kougl, where we noted

that “[t]he parties are agreed that Loney, Pool, and Fassler were accomplices” with Kougl,

Kougl, ¶ 20, and, indeed, the evidence overwhelmingly supported that conclusion. Kougl,

¶ 8. “[A] criminal defendant is entitled to jury instructions that cover every issue or theory

having support in the evidence.” State v. Beavers, 1999 MT 260, ¶ 23, 296 Mont. 340, ¶ 23,

987 P.2d 371, ¶ 23. Obviously, the converse is not true: a defendant cannot be forced to

bear an instruction which is not supported by the evidence.

¶71    Thirdly, there is a legitimate, strategic component to the giving, and thus, the

requesting, of this instruction. Here, an accomplice instruction would appear to have been

completely inconsistent with Newman’s defense. She testified, and her theory was, that the

drugs and paraphernalia seized in the house were not hers, and that Jordan’s testimony about

her sale of drugs was false:

       Defense Counsel: . . . So it’s your testimony that none of this drug
       paraphernalia is yours; is that correct?

                                             31
       Newman: That is correct.

       Defense Counsel: What about the drugs themselves?

       Newman: No, sir, they are not mine.

       Defense Counsel: Were you using those drugs or selling those drugs, or did
       you participate with other people in selling those drugs for money?

       Newman: No, I have never sold drugs.

       ....

       Defense Counsel: Now, you’ve heard Randy [Jordan]’s testimony that he said
       he saw you sell drugs to the people coming into the house or that you would
       drive somewhere to locations and sell drugs; you’ve heard that testimony?

       Newman: Yes, I have.

       Defense Counsel: Is that true?

       Newman: No, it is not.

       Defense Counsel: Did you ever go with [Jordan] anywhere to sell drugs or -

       Newman: No, sir.

¶72    Given this testimony and Newman’s theory, it would have been supreme

incongruence for Newman to ask that the jury be instructed to view Jordan’s testimony with

distrust for being legally accountable for acts which Newman adamantly claimed never

occurred. Unlike the record in Kougl, the evidence here presented a legitimate strategic

reason for declining to request the instruction. Alternatively, Newman’s trial counsel could

have requested the accomplice instruction for purposes of attacking Jordan’s testimony.

However, that decision would have required taking a risk—that the jury would recognize the


                                            32
incongruence between Newman’s argument that Jordan was an accomplice and her theory

that the acts had not occurred. “[I]t is not proper to give an accountability instruction [based

upon § 26-1-303(4), MCA] where it is not supported by the evidence and is inconsistent with

the defendant’s claim of innocence.” State v. Hall, 2003 MT 253, ¶ 30, 317 Mont. 356, ¶

30, 77 P.3d 239, ¶ 30 (emphasis added). On matters of strategy, we cannot second-guess

counsel. “[W]e will not find ineffective assistance of counsel . . . in counsel’s tactical

decisions.” Weaver v. State, 2005 MT 158, ¶ 25, 327 Mont. 441, ¶ 25, 114 P.3d 1039, ¶ 25.

¶73    The concurring opinion’s statement that “[t]o hold that an accomplice instruction is

inappropriate when a defendant maintains his innocence is illogical” (¶ 56) may be correct

when viewed in isolation. However, the statement does not fully circumscribe the law.

Under the statute and our cases, the accomplice instruction is inappropriate when it is

inconsistent with the particular theory or evidence a defendant presents in support of his

claim of innocence. In those cases, requesting the instruction becomes a tactical matter. In

Kougl, the case as presented left no room for a tactical decision, and the instruction was

appropriate. Here, the opposite was true.

¶74    I would affirm.



                                                   /S/ JIM RICE




                                              33
Justice John Warner dissents.

¶75    I respectfully dissent from the Court’s decision to remand this case for a new trial.

I agree with the dissent of Justice Rice concerning Justice Leaphart’s concurring opinion

commencing at ¶ 65. Relating to Justice Nelson’s opinion, in my view it takes the

prosecutor’s closing argument out of context, and then goes on to erroneously undertake a

plain error review of the case to reach its conclusions.

¶76    In considering the appropriateness of plain error review, the Court ignores the

principle that we do not lightly excuse the failure to raise a contemporaneous objection but

utilize plain error review sparingly. Finley, 276 Mont. at 138, 915 P.2d at 215. The Court

justifies its use of plain error review by stating that a failure to address the alleged improper

closing argument by the prosecution would bring into question the fundamental fairness of

Newman’s trial. While this Court has held that utilizing plain error review is proper when

a failure to review the claimed error “may leave unsettled the question of the fundamental

fairness of the trial,” Finley, 276 Mont. at 137, 915 P.2d at 215, I cannot agree that the trial

in the present case was fundamentally unfair.

¶77    While the prosecution’s comments could have been more artfully phrased, the

transcript shows the arguments in question were not at all aimed at the presumption of

innocence. They were an attack on Newman’s credibility. Newman testified at the trial.

Thus, the prosecution could properly comment on her credibility. We have previously found

it proper for the prosecution “to comment on conflicts and contradictions in testimony, as

well as to comment on the evidence presented and suggest to the jury inferences which may


                                               34
be drawn therefrom.” State v. Daniels, 2003 MT 247, ¶ 26, 317 Mont. 331, ¶ 26, 77 P.3d

224, ¶ 26 (quoting State v. Gladue, 1999 MT 1, ¶¶ 14-15, 293 Mont. 1, ¶¶ 14-15, 972 P.2d

827, ¶¶ 14-15). The prosecution’s argument was that Newman’s version of events was not

credible, and Newman’s failure to call certain witnesses implied that her version of events

was not credible. As such, when taken in context, the prosecution’s closing was not

improper.

¶78    Even assuming, arguendo, that the prosecution’s closing was an attack on the

presumption of innocence, which it was not, Newman has failed to establish any resulting

prejudice. This Court has previously held that the burden is on the defendant to demonstrate,

from the record, that improper comments by the prosecution prejudiced the defendant’s right

to a fair and impartial trial. Gladue, ¶ 27. In the present case, while Newman’s counsel

failed to object to the prosecution’s closing, he clearly pointed out to the jury that Newman

was presumed innocent and had no obligation to present any witnesses. He argued:

              Mr. Fulbright [the prosecutor] brought up where are the other
       witnesses, where is Amber, where are these people that come to the house if
       they were supporting them. If you remember one thing about the Rices, they
       both testified that they never saw anyone using drugs at the house and they
       never saw any drug deals going on in the house. And as Mr. Fulbright
       indicated, it sounds as if they’re watching this house pretty closely. I mean,
       they’re taking down notes, they’re writing down license plate numbers to
       investigate these people. And Mr. Fulbright says, well, where are these people
       now? Well, it is not the Defendant’s burden. It’s not our burden to prove that
       my client is innocent. It’s the State’s burden to produce those types of
       witnesses that may implement [sic] my client in a crime. It’s the government’s
       burden to prove each and every element beyond a reasonable doubt. That’s
       the most important principal [sic] of our constitution. And that Sandra is
       innocent until proven guilty and you all assured me you will do that. And I
       believe you still will.


                                             35
¶79      This argument by Newman’s counsel, as well as the jury instructions that clearly state

it is the State’s burden to prove each element of the alleged offense beyond a reasonable

doubt, make it clear that Newman received a fair trial. Considering the entire record,

Newman’s fundamental constitutional rights are not implicated in this case, the fundamental

fairness of the trial is not called into question, and the integrity of the judicial process is not

compromised.

¶80      As the prosecution’s closing argument, taken in context, was not improper, and the

record reflects that Newman was not prejudiced by such argument, the Court should not

undertake plain error review. I would affirm the conviction and dissent from our refusal to

do so.


                                             /S/ JOHN WARNER




                                                36
Chief Justice Karla M. Gray, dissenting.


¶81     I respectfully dissent from the Court’s decision to reverse and remand for a new trial.

¶82     With regard to Justice Nelson’s opinion, it is my view the various opinions in this

case illustrate that whether prosecutorial misconduct actually occurred during closing

argument is a close question. Having read the entire transcript, it is clear to me that the case

boiled down to a question of whether the jury believed Randy Jordan or whether it believed

Sandra Jordan Newman, his sister and the defendant in this case. Indeed, that was the thrust

of defense counsel's opening statement and his closing argument. And without a doubt,

Jordan's credibility was brought into clear focus by both the State and defense counsel. The

same was true of defendant Newman. Both the State and the defense presented other

witnesses in their cases-in-chief, but Jordan and Newman were the "battleground" in this

case.   His--the State's--theory was that Newman was responsible for the drugs and

paraphernalia; her theory was that either Jordan and/or her daughter Amber, who was in a

group home at the time of trial because of her drug activities, was responsible. In this "big

picture" context, it is reasonable to argue that the prosecution merely commented on gaps

in the defense case by briefly referring to witnesses who did not appear. It also is reasonable

to argue that the prosecution's references touched on the presumption of innocence.

¶83     Even assuming, however, that prosecutorial misconduct occurred, my review of the

record convinces me that it was minor in the context of the overall case and does not rise to

the level of reviewable plain error. The trial in this matter lasted over one and one-half days,



                                              37
18 witnesses were called and recalled, and scores of State exhibits were admitted into

evidence.

¶84    Closing arguments--by the State and defense counsel--cover a mere 37 pages of a

transcript containing over 475 pages. In its first closing argument, the prosecution's

references to witnesses not called covers, at most, 23 lines of an 18-page argument.

Experienced defense counsel's closing focused primarily on credibility--as had his opening

statement--and pointed the finger at Jordan and/or Amber as the responsible parties. From

a 15-page closing argument, one can extract, at most, 33 lines of argument relating to the

State's "where are they?" references, primarily hammering on the State's burden to prove its

case beyond a reasonable doubt. The prosecution did not refer to these matters again in its

final closing argument.

¶85     Appellate counsel understandably--in the absence of any objection by trial counsel

to the remarks by the prosecution--requests plain error review pursuant to Finley, our

seminal case on that subject, and State v. Sullivan (1996), 280 Mont. 25, 927 P.2d 1033. We

have stated on numerous occasions that such review should be exercised only sparingly.

See, e.g., State v. Gray, 2004 MT 347, ¶ 13, 324 Mont. 334, ¶ 13, 102 P.3d 1255, ¶ 13; State

v. Godfrey, 2004 MT 197, ¶ 22, 322 Mont. 254, ¶ 22, 95 P.3d 166, ¶ 22; State v. Rinkenbach,

2003 MT 348, ¶ 13, 318 Mont. 499, ¶ 13, 82 P.3d 8, ¶ 13; State v. Daniels, 2003 MT 247,

¶ 20, 317 Mont. 331, ¶ 20, 77 P.3d 224, ¶ 20. Indeed, the Finley test for plain error review

is that such review should be exercised when failing to do so "may result in a manifest

miscarriage of justice, may leave unsettled the question of the fundamental fairness of the


                                            38
trial or proceedings, or may compromise the integrity of the judicial process." Finley, 276

Mont. at 137, 915 P.2d at 215. On the record before us, and in light of appellate counsel's

candid observation that "points made during closing of counsel may be missed or quickly

forgotten[,]" I simply am not persuaded that plain error review is warranted here because I

am not convinced Newman's constitutional rights were violated and, if they were, I do not

believe any violation impacted on the fundamental fairness of the trial.

¶86    I also am not persuaded that Sullivan advances Newman's cause. Sullivan is a classic

case of prosecutorial comment on a defendant's post-Miranda silence in which we applied

plain error review on appeal. There, the prosecutor commented on the defendant's post-

Miranda silence in his opening statement, during his case-in-chief and during his closing

argument, all without objection from defense counsel. See Sullivan, 280 Mont. at 29-31, 927

P.2d at 1036. Here, Newman voluntarily spoke with law enforcement during the search of

her home, voluntarily took the stand in her own defense and called other witnesses on her

behalf. The Sullivan "silence" case has no application or relevance here. I would decline

to apply plain error review and affirm the District Court on appeal.

¶87    I also join in Justice Rice’s dissent from Justice Leaphart’s opinion determining that

ineffective assistance of counsel occurred regarding the accomplice instruction and reversing

and remanding for a new trial. In my view, Justice Leaphart’s legal analysis is flawed, as

Justice Rice’s dissent makes clear. Further, nothing in § 26-1-303(4), MCA, even suggests

that criminal defense counsel must make a record regarding why a jury instruction is not

required. The burden which would be placed on criminal defense counsel should the Court

itself start such micro-management of their trial strategies and performance is, to say the

                                             39
very least, unwarranted. Finally, I would conclude that Newman’s other claim of ineffective

assistance--namely, the lack of objection to the prosecutor’s comments in closing argument--

be pursued, if at all, via a postconviction relief proceeding.

¶88    I dissent.


                                                   /S/ KARLA M. GRAY




                                              40
