                                                                                             March 3 2015


                                          DA 13-0047
                                                                                           Case Number: DA 13-0047

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2015 MT 72N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

ROY VINCENT ADAMS,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DC 11-576
                       Honorable Edward P. McLean, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Jennifer A. Hurley, Hurley Kujawa PLLC, Butte, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; Micheal S. Wellenstein,
                       Assistant Attorney General, Helena, Montana

                       Kirsten H. Pabst, Missoula County Attorney; Jordan Kilby, Deputy
                       County Attorney, Missoula, Montana



                                                   Submitted on Briefs: January 21, 2015
                                                              Decided: March 3, 2015


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     In October 2012, a jury found Roy Vincent Adams guilty of driving under the

influence and resisting arrest. After entry of judgment, Adams’s counsel filed a motion

to withdraw pursuant to § 46-8-103(2), MCA, and Anders v. California, 386 U.S. 738, 87

S. Ct. 1396 (1967).    After conducting a preliminary examination of the record, we

concluded that Adams “may have nonfrivolous issues to raise on appeal, including

whether the State improperly commented on his right to silence.” Thus, Adams now

appeals on the grounds that, at trial, the State improperly introduced evidence of his

silence toward police on the night of his arrest. The determinative issue in this appeal is

whether this Court should review Adams’s claims for plain error. Because we conclude

that the claims do not qualify for plain error review, we affirm Adams’s convictions.

¶3     The conduct for which Adams was convicted occurred around 1:30 a.m. on

December 4, 2011. Missoula Police Department officers Nick Walters, Sean Manraksa,

and Jeff Curtis encountered Adams when Adams’s truck drove near Officer Curtis’s

parked patrol car before spinning out and coming to a rest facing eastward in a

westbound lane. Officer Walters approached Adams’s truck and Adams stepped out.
                                            2
Adams claims that he told Officer Walters that he had just been assaulted and robbed.

Officer Manraksa approached seconds later and smelled alcohol on Adams’s breath.

Adams was agitated and tried to walk away from the officers. The officers eventually

subdued and arrested him. A blood test conducted later that night showed that Adams

had a blood alcohol concentration of 0.18.

¶4     The State charged Adams with assault, resisting arrest, reckless driving, and

driving under the influence. Before trial, Adams notified the State of his intent to present

the affirmative defense of compulsion to the driving under the influence charge. Adams

also submitted a proposed jury instruction on compulsion that the District Court accepted.

During the jury selection process, Adams’s counsel asked prospective jurors whether they

believed it was okay for a person to break the law to avoid physical harm. Adams’s

counsel also asked a potential juror who knew Officer Manraksa whether he could be

fair, considering that there was a strong possibility that Officer Manraksa’s testimony

was going to conflict with Adams’s anticipated testimony.

¶5     In opening statements, the State informed the jury of Adams’s intent to present a

compulsion defense. The State told the jury, “We don’t know what you’re going to hear

about that compulsion defense. But, what you will hear from the officers is that, at no

time[ ] did Mr. Adams say—this is why I’m driving, or this person is after me, or

someone assaulted me, and I had to drive.” In opening statements, Adams’s counsel

explained that Adams “had to drive to get away from three men at the Lucky Strike

casino[ ] who attacked him, [and] who were after his money . . . .” Adams’s counsel
                                             3
explained that Adams pulled up to the patrol vehicle to tell the officers of his distress and

that Adams told Officer Walters what was going on when Adams first stepped out of his

truck.

¶6        In its case in chief, the State put on testimony from officers Manraksa and Curtis,

as well as other officers who encountered Adams on the night of his arrest. Officer

Walters was no longer with the Missoula Police Department and was not available to

testify. All of the officers who did testify explained that Adams never mentioned that he

was fleeing a violent encounter. Defense counsel did not object to any of the State’s

arguments or evidence regarding Adams’s failure to tell the officers about the incident at

the casino. After the State rested, Adams testified in his own defense, explaining that he

drove that night only to obtain assistance following a theft and assault. He explained that

he told Officer Walters what was going on but then gave up once he realized that the

officers would not believe him.

¶7       On appeal, Adams presents two arguments that admitting evidence of his silence

toward the officers was improper. First, he argues that the evidence should have been

excluded under M. R. Evid. 403 because the danger of unfair prejudice substantially

outweighed the probative value of the evidence. Second, Adams argues that the evidence

violated his constitutional rights to due process and protection from self-incrimination as

guaranteed by Article II, Sections 17 and 25 of the Montana Constitution.

¶8       To receive appellate review on the merits, a party generally must raise an

objection on the appealed issue with the trial court. State v. Robertson, 2014 MT 279,
                                              4
¶ 32, 376 Mont. 471, 336 P.3d 367. This rule incentivizes correcting errors at the earliest

opportunity and prevents this Court from holding a district court in error on an issue it

never had the opportunity to examine. State v. West, 2008 MT 338, ¶¶ 16-17, 346 Mont.

244, 194 P.3d 683. Although sparingly used, we nonetheless retain our common law

authority to conduct plain error review of unpreserved issues. Robertson, ¶ 32. We

employ plain error review if the appellant “firmly convinces” the Court that (1) “the

claimed error implicates a fundamental right,” and (2) “the claimed error 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.” State v.

Torres, 2013 MT 101, ¶ 37, 369 Mont. 516, 299 P.3d 804 (citations omitted).

¶9     Adams’s defense to the driving while intoxicated charge rested on his theory of

compulsion. A compulsion defense requires that a defendant show:

       (1) he was compelled to perform the offensive conduct (2) by the threat or
       menace (3) of the imminent infliction (4) of death or serious bodily harm,
       and that (5) he believed that death or serious bodily harm would be inflicted
       upon him if he did not perform such conduct, and (6) his belief was
       reasonable.

State v. Owens, 182 Mont. 338, 347, 597 P.2d 72, 77 (1979) (emphasis removed). While

perhaps enough to get to a jury, Adams’s compulsion defense was not strong. It centered

on Adams’s story that he was grabbed and thrown out of a bar by three men who, before

going back inside, told Adams that they would be back soon and that police were on the

way. Adams, realizing that he left two hundred dollars at the bar, then drove toward his

sister’s house to obtain assistance. This theory was unlikely to convince a jury that
                                            5
Adams was compelled to drive while intoxicated by the threat of the imminent infliction

of serious bodily injury if he did not do so. We are not convinced that, by attacking

Adams’s compulsion defense through his failure to tell the officers about his encounter

on the night in question, the State caused a miscarriage of justice.

¶10    Further, the integrity of the judicial process and principles of fairness allow the

State to rebut an affirmative defense of compulsion. While we draw no conclusions

about the propriety of the State’s presentation of this evidence in its case in chief or

stylization of this evidence as substantive rather than for impeachment, we note that the

evidence had some impeachment value. Moreover, at multiple points throughout the

trial, Adams had the opportunity to argue for an exclusion of this evidence or for a

limiting instruction. Thus, we are not firmly convinced that the introduction of the

evidence calls into question the fundamental fairness or integrity of Adams’s trial.

¶11    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions.

Although our preliminary review determined that the issues Adams raises on appeal are

not frivolous, we are convinced by further review of the record and the parties’

arguments that Adams has not met the requirements for plain error review. Accordingly,

we decline to review the merits of Adams’s claims. We affirm Adams’s convictions.



                                                  /S/ BETH BAKER


                                              6
We concur:

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




                          7
