                                                                                             03/10/2020


                                          DA 18-0219
                                                                                         Case Number: DA 18-0219

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2020 MT 56



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

MICHAEL WAYNE GEORGE,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Nineteenth Judicial District,
                       In and For the County of Lincoln, Cause No. DC-16-113
                       Honorable Matthew J. Cuffe, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       William F. Hooks, Law Office of William F. Hooks, Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Roy Brown, Assistant
                       Attorney General, Helena, Montana

                       Marcia Boris, Lincoln County Attorney, Libby, Montana


                                                  Submitted on Briefs: January 8, 2020

                                                              Decided: March 10, 2020


Filed:

                                 cir-641.—if
                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     Michael George appeals his conviction of felony DUI, disorderly conduct, and

driving with a suspended license. He seeks reversal on his unpreserved claim that the

District Court violated his fundamental right to be present when it discussed with counsel

in his absence the potential substitution of an alternate juror. Applying our plain error

review standard, we affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶2     George was charged with multiple offenses in the Nineteenth Judicial District Court,

Lincoln County. The case proceeded to a jury trial. On the second morning of trial, the

court’s recording equipment malfunctioned, and the court excused the jury and continued

the trial.   When trial resumed several days later, a juror failed to appear due to a

misunderstanding. The court met with counsel to discuss the juror’s absence. The court

proposed that the juror, who lived more than an hour away, be replaced with an alternate

rather than requiring the absent juror to travel to the courthouse. Defense counsel objected,

arguing that George had a right “to the jury he selected” and that a brief trial delay was not

a justifiable reason to substitute an alternate juror. Defense counsel noted that because

another juror was absent also and traveling to the court, the trial would be delayed

regardless. George was in custody and not present for this discussion. Defense counsel

did not speak with him before the morning’s conference with the court. Counsel did not

object to George’s absence. In fact, when asked by the District Judge whether they should

wait for George to hold the conference, defense counsel stated they could proceed in his

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absence. The court decided not to substitute the alternate juror, telephoned the absent juror

with counsel present, and informed him that his attendance was required. The trial resumed

at 12:15 p.m. that day after the juror arrived. The case went to the jury later that afternoon.

The court conducted several additional conversations with counsel regarding the jury

deliberations, considering the inclement weather and late time of day. George was not

present for these additional conversations, but the court inquired into his absence each time,

and defense counsel agreed each time to proceed without him.

¶3     The court allowed the jury to continue deliberating but informed the jurors that they

did not need to render a verdict that evening and that they would be reimbursed for hotel

expenses if they stayed overnight. At 8:27 p.m., the court reconvened for the jury’s verdict.

The jury found George guilty of DUI, disorderly conduct, and driving with a suspended

license.

                                STANDARD OF REVIEW

¶4     This Court generally does not address issues raised for the first time on appeal.

State v. Hatfield, 2018 MT 229, ¶ 15, 392 Mont. 509, 426 P.3d 569. We discretionally

may review unpreserved claims alleging errors implicating a criminal defendant’s

fundamental rights under the common law plain error doctrine.                State v. Akers,

2017 MT 311, ¶ 13, 389 Mont. 531, 408 P.3d 142 (citing State v. Taylor, 2010 MT 94,

¶ 12, 356 Mont. 167, 231 P.3d 79).




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                                      DISCUSSION

¶5     When reviewing unpreserved claims of error, we employ the plain error doctrine

sparingly, on a case-by-case-basis, considering the “totality of circumstances of each case.”

Akers, ¶ 13 (citing State v. Lindberg, 2008 MT 389, ¶ 34, 347 Mont. 76, 196 P.3d 1252).

“Simply requesting that this Court review an unpreserved issue under the plain error

doctrine is not enough.” State v. Daniels, 2019 MT 214, ¶ 31, 397 Mont. 204, 448 P.3d 511

(citing State v. Norman, 2010 MT 253, ¶ 17, 358 Mont. 252, 244 P.3d 737). The party

requesting reversal because of plain error bears the burden of firmly convincing this Court

that the claimed error implicates a fundamental right and that such review is necessary to

prevent a manifest miscarriage of justice or that failure to review the claim may leave

unsettled the question of fundamental fairness of the proceedings or may compromise the

integrity of the judicial process. Akers, ¶ 13 (citing Taylor, ¶ 12); see also Hatfield, ¶ 15

(citing State v. Lawrence, 2016 MT 346, ¶ 9, 386 Mont. 86, 385 P.3d 968); State v. Finley,

276 Mont. 126, 137, 915 P.2d 208, 215 (1996), overruled, in part, on other grounds by

State v. Gallagher, 2007 MT 39, ¶ 21, 304 Mont. 215, 19 P.3d 817; State v. Favel,

2015 MT 336, ¶ 23, 381 Mont. 472, 362 P.3d 1126. Thus, “we first ask if the alleged error

implicates a fundamental right; we next ask if failure to review the alleged error would

result in one of these consequences.” Hatfield, ¶ 15 (citing Taylor, ¶ 14). We may then

invoke our discretion and reverse the trial court. Favel, ¶ 28.

¶6     George points out that he has a due process right to be present at all critical stages

of the criminal proceedings against him. U.S. Const. amend. VI; Mont. Const. art. II, § 24;

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State v. Robinson, 2014 MT 279, ¶ 37, 376 Mont. 471, 336 P.3d 367 (citing State v. Matt,

2008 MT 444, ¶¶ 16-17, 347 Mont. 530, 199 P.3d 244, overruled, in part, on other grounds

by State v. Charlie, 2010 MT 195, ¶ 45, 357 Mont. 355, 239 P.3d 934). He argues that by

holding the conversations regarding the absent juror in his absence, the District Court

violated his right to be present, thus satisfying the first requirement of plain error review.

The State responds that the District Court’s alleged error did not implicate George’s

substantial rights because it was an administrative matter regarding jury scheduling and

did not implicate a fundamental right.

¶7     In Hatfield, ¶ 29, we held that the defendant’s fundamental right to be present was

implicated when he was absent during several sidebars and in-chambers discussions and

thus satisfied the first requirement for plain error review. Similarly, in State v. Kennedy,

2004 MT 53, ¶ 27, 320 Mont. 161, 85 P.3d 1279, we held that the trial judge’s discussion

with the jury in the defendant’s absence violated the defendant’s right to be present. And

in State v. Tapson, 2001 MT 292, ¶¶ 27-28, 307 Mont. 428, 41 P.3d 305, we held that

Tapson’s fundamental right to be present was implicated when the trial judge entered the

jury room while the jury was deliberating. We agree with George that his fundamental

right to be present was implicated when the District Court discussed substitution of an

alternate juror and spoke to the absent juror without George present, implicating his right

to be present and satisfying the first requirement for plain error review.

¶8     Under the second step of plain error review, we determine if our failure to review

an alleged violation of a fundamental right may result in a manifest miscarriage of justice,

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leave unsettled the question of fundamental fairness of the proceedings, or compromise the

integrity of the judicial process. Akers, ¶ 13. George asserts that he was denied a

meaningful opportunity to contribute to decisions affecting his jury when the court held

discussions regarding the jury composition in his absence, raising questions of the

fundamental fairness of the proceedings against him. According to George, the mid-trial

discussions could have resulted in either of two outcomes—the original juror or the

alternate juror sitting on the jury—both of which would directly affect his trial. George

contends that the decisions made at the conference held in his absence altered the trial by

delaying it substantially to accommodate the absent juror’s travel to court. The case then

went to the jury much later, and the deliberations went into the night. Had he been present,

George contends he could have provided input on how his trial should proceed.

¶9     The State responds that George has not met his burden to show that a manifest

miscarriage of justice would result should George’s conviction stand on this record. The

State again asserts that George’s substantial rights were not affected. It argues that the

decisions made in George’s absence did not alter the composition of the jury that he had

selected. The State asserts that George has not met his burden to firmly demonstrate that

reversal is required because he speculates as to how his presence at the conference could

have been meaningful and beneficial.

¶10    When reviewing alleged violations of the fundamental right to be present, we have

considered a defendant’s lack of opportunity to observe and provide input, even when a

conversation between the court and counsel involved “purely legal” issues. Matt, ¶ 21.

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On this record, however, we are not “firmly convinced” that the violation of George’s right

to be present has resulted in a miscarriage of justice or calls the fundamental fairness of his

trial into question.

¶11    Akers offers an instructive example of when plain error warrants a new trial. We

held there that the District Court’s failure to properly instruct the jury on the State’s burden

of proof implicated each of the plain-error-review criteria, and, at a minimum, left unsettled

the question of the fundamental fairness of the proceeding. Akers, ¶ 17. We reversed

Akers’s conviction. Akers, ¶ 21. We looked at the fact that the jury instruction error

implicated which party bore the burden of proof in establishing Akers’s guilt and

recognized that “an accused is ‘protected by standards of proof designed to exclude as

nearly as possible the likelihood of an erroneous judgment.’” Akers, ¶ 17 (citing Addington

v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 1808 (1979)). We concluded that where a jury

had not properly been instructed on the burden of proof, we “cannot be assured of the

fairness or have confidence in its determination of guilt.” Akers, ¶ 17.

¶12    George’s right-to-be-present argument does not raise the same fundamental fairness

concern as in Akers.      The District Court’s discussion regarding the potential juror

substitution did not affect the jury’s composition because George already had accepted the

alternate as a juror in the jury selection process. The jury had been selected and vetted

properly. And the discussion involving the absent juror resulted in George maintaining the

same jury he initially chose. Unlike Akers, this did not result in an “erroneous judgment”

or implicate the substance of the proceedings.

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¶13    George argues that he might have chosen to substitute the absent juror because that

juror would have to drive almost two hours to get to trial and the trial would be delayed,

resulting in late-night jury deliberations. Essentially, he seems to suggest that the delay

would influence the jury’s ultimate verdict. The record shows that there was another juror

who was confused by the trial scheduling and that the trial would have been delayed

regardless to allow that juror to attend. The record also shows that the District Court was

mindful of the late-night deliberations and assured the jury that “there’s no pressure to get

it all done tonight” and that it could resume deliberations in the morning. The court also

provided specific information about motel reimbursement for jurors who had to travel and

stay the night.

¶14    We are mindful of George’s burden to “firmly convince” this Court that failing to

review the unpreserved claim implicating his fundamental right to be present would result

in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness

of the trial or proceedings, or compromise the integrity of the judicial process. Favel, ¶ 23

(internal citations omitted). Having reviewed the record, we are not convinced that George

has met that standard. We decline to reverse George’s conviction on his unpreserved claim.

Affirmed.

                                                  /S/ BETH BAKER

We concur:

/S/ MIKE McGRATH
/S/ JIM RICE
/S/ LAURIE McKINNON
/S/ INGRID GUSTAFSON
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