                                                                                                09/12/2017


                                           DA 15-0206
                                                                                           Case Number: DA 15-0206

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2017 MT 228N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JOSEPH LEE DONEY,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DC 13-945
                        Honorable Russell C. Fagg, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Chief Appellate Defender, Kristen L. Peterson, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
                        Assistant Attorney General, Helena, Montana

                        Scott Twito, Yellowstone County Attorney, Christopher Morris, Deputy
                        County Attorney, Billings, Montana



                                                     Submitted on Briefs: June 28, 2017
                                                                Decided: September 12, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(c), 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    Joseph Lee Doney appeals his jury conviction and judgment in the Thirteenth

Judicial District Court, Yellowstone County, for one count felony assault with a weapon.

We address the following issues:

      Issue One: Whether the District Court abused its discretion by excluding Krengel’s
      testimony regarding statements Tsosie made to Krengel.

      Issue Two: Whether the District Court abused its discretion by allowing the
      investigating detective to testify regarding a witness’s out-of-court statements.

      Issue Three: Whether the Court should exercise plain error review of Doney’s claim
      of prosecutorial misconduct.

      Issue Four: Whether Doney established cumulative error to warrant reversal.

      Issue Five: Whether remand is necessary to enter an amended judgment regarding
      community supervision conditions.

We affirm.

                 PROCEDURAL AND FACTUAL BACKGROUND

The Incident

¶3    Around 1:00 p.m. on July 10, 2013, Donald Cyphers, II, left the Holiday

convenience store at the corner of North 27th Street and North 6th Avenue in downtown



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Billings. Cyphers merged into the right lane as he approached a construction zone, and

then noticed the driver of a white Pontiac Grand Am with tinted windows leaning out of

the window yelling at him. Once the left lane construction zone ended, the Pontiac

accelerated into the left lane to catch up to Cyphers. The passenger’s window of the

Pontiac was cracked open about four inches, down to a little higher than the passenger’s

eye line. Cyphers testified the passenger of the Pontiac leaned forward and smacked a gun

up against the window of the Pontiac, pointing it at him. The passenger, who Cyphers

identified as male, had the gun in his left hand, and his finger was in the trigger guard.

¶4     Cyphers pulled over his vehicle and called his father. As Cyphers prepared to call

police to report the incident, he noticed Montana Highway Patrol Captain Edward Hilbert

approach in an unmarked car. Captain Hilbert observed Cyphers’ car stopped on the

shoulder. Cyphers yelled at Captain Hilbert that “These guys just pulled a gun on me,”

indicating the Pontiac a few cars ahead. The Pontiac then drove into oncoming traffic to

pass the cars stopped at the traffic light and crossed the intersection against the red light.

Captain Hilbert pursued the Pontiac, which was traveling between 70 and 80 miles per

hour, until he lost sight of it as it turned onto Riverside Road.

¶5     Captain Hilbert asked a woman parked on Riverside Road whether she saw a white

car go past. The witness stated she observed the car speed past, pull off to the side of the

road, and three people jumped out. She also told Captain Hilbert she had previously seen

the same car parked at the trailer behind hers. The Pontiac was still running and the driver’s

door ajar when Captain Hilbert reached it. Captain Hilbert knocked on the trailer the




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witness had directed him to, but nobody answered. Law enforcement was unable to locate

the three occupants of the Pontiac that day, and the car was impounded.

The Investigation

¶6     Billings Police Department Detective Hallam investigated the incident. Among

other witnesses, Detective Hallam interviewed Heather Krengel.            Krengel was the

registered owner of the Pontiac. At the time of this incident, Krengel and Doney were

living together and both Krengel and Doney drove the Pontiac. Krengel was Doney’s alibi

witness at trial. Detective Hallam testified that when he interviewed Krengel, she told him

that Robert Meza and his girlfriend, Edwina Tsosie, had the Pontiac at the time of the

incident. Doney and Meza were friends, and, one or two days before the incident, Meza

had borrowed the Pontiac to perform repairs. Krengel did not state to Detective Hallam

that Doney was with her at the time of the incident.

¶7     Detective Hallam also interviewed Carisa Banda. Banda is Meza’s niece. At the

time of the incident, Meza and Tsosie, lived together in a trailer owned by Banda. Banda’s

trailer is the trailer the witness had indicated to Captain Hilbert that she had previously

observed the white Pontiac parked. When interviewed by Detective Hallam, Banda stated

that Doney was in the Pontiac during the incident.

The Trial

¶8     At trial, the State called Captain Hilbert, Cyphers, Tsosie, and Detective Hallam.

¶9     Cyphers was unable to identify Doney as the passenger who pointed the gun at him.

¶10    Tsosie testified Doney called and requested Krengel’s Pontiac back, and that Tsosie

and Meza returned the car to Doney and Krengel’s residence around the noon hour. On


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the day of the incident, phone records indicated either Meza or Tsosie, who shared a cell

phone at the time, called Doney at 11:11 a.m. Doney called back at 11:51 a.m., 12:20 p.m.,

and 12:24 p.m. Tsosie stated that after visiting for a while, Meza and Tsosie asked for a

ride back to Banda’s trailer, at which time Meza drove, Doney sat in the front passenger

seat, and Tsosie sat in the back seat. Tsosie testified that following the incident, she went

to Krengel’s residence and told Krengel “[Meza] took us on a high-speed chase and they

towed your car away, and they’re back at [Banda]’s in the trailer.”

¶11    Doney called Krengel as his only witness. In contrast to Tsosie’s testimony,

Krengel testified that Doney left with his cousin in the afternoon while she [Krengel] slept

in. Krengel stated Tsosie show up in the late afternoon and she was upset. The State

objected to Krengel’s testimony that, during their conversation, Tsosie did not tell Krengel

that Doney was in the car and involved in the incident. Doney argued the statement should

come in as a prior inconsistent statement because Tsosie previously testified that she told

Krengel that Doney was in the car and involved. The District Court sustained the State’s

hearsay objection.

¶12    Before trial, the District Court granted Doney’s motion to exclude as hearsay any

statements made by Banda to Detective Hallam. During cross-examination, however,

Doney’s counsel asked Detective Hallam if he was skeptical of Tsosie’s statements that

placed Doney in the car at the time of the incident. Detective Hallam responded that he

was not, to which Doney’s counsel followed up: “Even though nobody else has said that

[Doney] was in the car?” On redirect examination, the State asked Detective Hallam

whether, in addition to Tsosie, Banda placed Doney in the car as well. Doney objected to


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Banda’s statement as hearsay and the Court sustained the objection. Continuing with its

redirect, the State elicited from Detective Hallam that he did not rely only on Tsosie’s

statement to place Doney in the car, but that he relied on the totality of the facts, including

Banda’s statement. Doney again objected. The District Court overruled the objection on

the basis that “[Detective Hallam] is just saying what he has used [to conclude that Doney

was in the car], that’s not going into what [Banda] said.”

                               STANDARDS OF REVIEW

¶13    We review a district court’s rulings on admissibility of the evidence for an abuse of

discretion, which occurs if the district court acts arbitrarily or unreasonable and substantial

injustice results. State v. Jenkins, 2011 MT 287, ¶ 4, 362 Mont. 481, 265 P.3d 643. “When

a court bases a discretionary ruling on a question of law, however, we review that

conclusion to determine whether the district court correctly interpreted the law.” State v.

Frickey, 2006 MT 122, ¶ 9, 332 Mont. 255, 136 P.3d 558.

¶14    Our review is plenary for questions regarding constitutional law. State v. Baker,

2013 MT 113, ¶ 17, 370 Mont. 43, 300 P.3d 696.

¶15    We will exercise plain error review of an issue not raised before the district court

“in situations that implicate a defendant’s fundamental constitutional rights when failing

to review the alleged error may result in a manifest miscarriage of justice, leave unsettled

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

the judicial process.” State v. Hayden, 2008 MT 274, ¶ 17, 345 Mont. 252, 190 P.3d 1091.

                                       DISCUSSION




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¶16   Issue One: Whether the District Court abused its discretion by excluding Krengel’s
      testimony regarding statements Tsosie made to Krengel.

¶17   Doney argues the District Court erred in excluding Krengel’s testimony that Tsosie

did not tell her Doney was in the car during their conversation immediately after the

incident, even though Tsosie previously testified she told Krengel that Doney was present.

Doney argues that Krengel’s statement was admissible as a prior inconsistent statement.

¶18   The testimony and objection at issue went as follows:

      Q [by Doney’s counel]: What did you tell [Doney] happened?

      A: I just told him that [Tsosie] had came, told me the car was impounded,
      that they had gotten in a high-speed chase with the police, and there was a
      gun involved, and that it had been impounded and that he needed to talk to
      [Meza].

      Q: Did you tell [Doney] that [Tsosie] had said that he was in the car?

      A: No, because she didn’t say that.

      Q: When she came over, she did not tell —

      A: Huh-uh.

      [PROSECUTOR]: Judge, I’m going to object again. The hearsay is pretty
      clear here.

      THE COURT: Sustained.

¶19   The State argues that Doney did not demonstrate that Tsosie’s statement to Krengel

was inconsistent with Tsosie’s trial testimony and that, even if it was, the testimony was

admitted in any event.    We agree.     Addressing first whether Tsosie’s statement to

Krengel—including her failure to specifically name Doney as being present in the car—

was inconsistent with her trial testimony. In response to the question as to whether she



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told Krengel that Doney and Meza were in the car, Tsosie testified: “Yeah, because we

were all in there. I said, [Meza] took us on a high-speed chase and they towed your car

away, and they’re back at [Banda]’s in the trailer.” (Emphasis added). Simply because

Tsosie used the collective pronoun “we” and “us” in her statement to Krengel does not

establish that Tsosie never identified Doney as being in the car during the incident.

Moreover, as the State correctly points out, Krengel’s testimony that Tsosie did not tell her

that Doney was in the car was admitted into evidence without objection. When Krengel

was initially asked, whether she told Doney that Tsosie had stated he was in the car, she

responded, “No, because she didn’t say that.” It was only when Doney’s counsel sought

to reiterate the point that the State’s hearsay objection was sustained.

¶20    The District Court did not abuse its discretion by sustaining the State’s hearsay

objection to Krengel’s testimony.

¶21    Issue Two: Whether the District Court abused its discretion by allowing Detective
       Hallam to testify regarding statements Banda made to him.

¶22    Doney argues the District Court erred by allowing Detective Hallam to testify that

he relied on Banda’s statement to conclude Doney was in the car. Doney contends that the

error was not harmless because the evidence undermined the District Court’s curative

instruction and directly corroborated Tsosie and contradicted Krengel. The State argues

Doney’s counsel invited the error when she misrepresented the content of Banda’s

out-of-court statement on Detective Hallam’s cross-examination. The State contends the

testimony was admissible either because it was not hearsay, or pursuant to the doctrine of

curative admissibility.



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¶23    “Under the rule of curative admissibility, or the ‘opening the door’ doctrine, the

introduction of inadmissible evidence by one party allows an opponent, in the court’s

discretion to introduce evidence on the same issue to rebut any false impression that might

have resulted from the earlier admission.” Stevenson v. Felco Indus., 2009 MT 299, ¶ 40,

352 Mont. 303, 216 P.3d 763 (quoting United States v. Whitworth, 856 F.2d 1268, 1285

(9th Cir. 1988)). The State did not elicit Banda’s statement to Detective Hallam that Doney

was in the car during its direct examination. It was only after Doney’s counsel suggested

during cross-examination that Detective Hallam should have been skeptical of Tsosie’s

statement placing Doney in the car because “nobody else has said that [Doney] was in the

car,” that the State attempted on redirect to enter into evidence that Banda also placed

Doney in the car. The District Court initially sustained Doney’s objection to this testimony

but then allowed Detective Hallam to testify that he relied on the totality of the facts,

including Banda’s statement, in determining that Doney was present in the car. This

testimony was given in rebuttal to Doney’s suggestion that Detective Hallam had engaged

in a rush to judgment, in part because nobody other than Tsosie placed Doney in the car.

¶24    Doney opened the door to this testimony. Limited as the testimony was, the District

Court did not abuse its discretion in allowing Detective Hallam’s testimony on statements

he relied on in his investigation to rebut Doney’s misrepresentation that no one else stated

Doney was in the car.

¶25    Issue Three: Whether plain error review is appropriate regarding Doney’s claimed
       prosecutorial misconduct.




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¶26    Doney argues the prosecutor committed misconduct in closing argument by

repeatedly focusing the jury on facts outside the record and on Detective Hallam’s charging

decision and opinion of guilt. See Hayden, ¶ 27; see also State v. Chafee, 2014 MT 226, ¶

27, 376 Mont. 267, 332 P.3d 240 (determining prosecutors cannot refer to matters outside

the record, misrepresent the law to the jury, or tell the jury to base its decision on factors

other than the law and evidence admitted at trial). Doney contends the prosecutor told the

jury to disregard evidentiary rules and rely on Detective Hallam’s decision to charge

Doney, because Detective Hallam “became convinced and more convinced with each

witness that he talked to and learned information from . . . Would he submit a case for

prosecution if he wasn’t completely convinced?          Of course not. Of course he was

convinced.” Doney also contends the prosecutor’s statement to the jury to assume Tsosie’s

trial testimony was consistent with her initial statement to authorities constituted

misconduct because it relies on facts outside the record. Finally, Doney argues the

prosecutor’s closing argument in which he told the jury “to go back, deliberate this case

and find him guilty,” without reminding the jury to acquit in the absence of proof beyond

a reasonable doubt, undermined the fairness of Doney’s trial. See Hayden, ¶¶ 27-28.

Because Doney did not raise the issue of prosecutorial misconduct before the District

Court, the burden is on Doney to show that “failing to review the alleged error may result

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

of the proceedings, or compromise the integrity of the judicial process.” Hayden, ¶ 17.

¶27    The State argues Doney has not met his burden to show this is the rare case requiring

the discretionary exercise of plain error review to prevent a miscarriage of justice. The


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State contends an attorney may comment on evidence of the case and draw reasonable

inferences from evidence so long as facts support such argument. See State v. Bashor, 188

Mont. 397, 417, 614 P.2d 470, 481 (1980). The State points out the prosecutor also told

the jury that “[w]hat it’s going to come down to and what you get to decide is the credibility

of the witnesses,” and that the jury should decide “those issues, and you get to process and

figure out which path to go.” The District Court also instructed the jury that Doney was

presumed innocent and that the State bore the burden of proving the elements of the offense

beyond a reasonable doubt.

¶28    We agree with the State that, taken as a whole and reviewed in context, the

prosecutor’s statements during closing arguments were not outside the wide latitude that a

prosecutor is allowed when discussing evidence before the jury and responding to opposing

counsel’s attack of the State’s case. Bashor, 188 Mont. at 417, 614 P.2d at 481. The

District Court instructed the jury that “[t]he function of the jury is to decide the issues of

fact resulting from the charge filed in this Court by the State and the Defendant’s plea of

‘not guilty’ to the charge,” and that “[t]he jurors have a duty to consult with one another

and to deliberate for the purpose of reaching an agreement, if it can be done without

violence to individual judgment.” The prosecutor’s single statement—that the jury’s job

was to find Doney guilty—did not eclipse the District Court’s instructions to the jury and

compromise the integrity of the judicial process.

¶29    As to Doney’s other contentions that include the prosecutor soliciting testimony

from Detective Hallam regarding statements made to him by Tsosie and Banda, those are

evidentiary issues that do not rise to the level prosecutorial misconduct.


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¶30      Doney failed to firmly convince this Court that any of the prosecutor’s statements

or actions, individually or in combination, resulted in a manifest miscarriage of justice.

¶31      Issue Four: Whether Doney established cumulative error to warrant reversal.

¶32      Doney argues his conviction is based on facts not admitted into evidence, in addition

to Detective Hallam’s opinion, and these errors cumulatively rendered his trial

fundamentally unfair. Doney contends the prosecutor’s repeated misconduct undermined

the fairness of the trial and created a clear danger that the jury did not base its decision on

its independent judgment, but rather on Detective Hallam’s opinion and facts outside the

record. See State v. Ferguson, 2005 MT 343, ¶ 126, 330 Mont. 103, 126 P.3d 463. The

State responds that Doney failed to establish that multiple errors prejudiced his right to a

fair trial. See State v. Novak, 2005 MT 294, ¶¶ 34-36, 329 Mont. 309, 124 P.3d 182. We

agree. As we held in Novak, it is not appropriate to reach the issue of cumulative error

where this Court has considered each of the claimed errors and determined they do not

amount to trial error. Novak, ¶ 36. As discussed above, the District Court did not commit

reversible error in the individual instances Doney assigns; thus, there can be no cumulative

error.

¶33      Issue Five: Whether remand is necessary to enter an amended judgment regarding
         community supervision conditions.

¶34      Finally, Doney argues the District Court illegally imposed conditions that apply “for

any period of community supervision.”          Doney contends that the District Court is

proscribed from imposing conditions of parole or conditional release.            See State v.

Birthmark, 2013 MT 86, ¶ 23, 369 Mont. 413, 300 P.3d 1140. Thus, to the extent that


                                              12
“community supervision” could be interpreted as including parole or conditional release,

the sentence is illegal and his sentence must be remanded to amend the judgment for that

clarification.

¶35    The State responds that the conditions pertaining to monetary obligations and any

other limitation reasonably related to the objectives of rehabilitation and the protection of

the victim and society statutorily apply during the entire period of Doney’s sentence,

including periods of incarceration and community supervision, regardless of the nature of

that supervision. The State contends that the requirements that Doney register as a violent

offender and provide a DNA sample are self-executing pursuant to statute. As to those

conditions that, by their nature, would apply only to Doney’s conduct while released in the

community, the State contends that they properly apply to the suspended portion of

Doney’s sentence, but are nothing more than recommendations as to any other period of

community supervision, such as parole or conditional release.

¶36    We review sentences for legality to determine whether they are within statutory

parameters. State v. Hicks, 2006 MT 71, ¶ 41, 331 Mont. 471, 133 P.3d 206. It is

well-established that a District Court cannot impose conditions to apply to any term of

parole or conditional release. Birthmark, ¶ 23 (citing State v. Burch, 2008 MT 118, ¶¶ 24-

26, 342 Mont. 499, 182 P.3d 66). Because it is well-established, the only reasonable

interpretation of “community supervision” cannot include parole or conditional release.

Thus, clarification is not required and it is not necessary to remand the judgment for

amendment.

                                     CONCLUSION


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¶37    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of this

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review.     The District Court’s rulings were not an abuse of

discretion, and its interpretation and application of the law were correct. Further, having

reviewed the briefs and the record on appeal, we conclude that the Doney has not met his

burden of persuasion. We affirm.


                                                 /S/ JAMES JEREMIAH SHEA


We Concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ JIM RICE




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