                                                                                        February 18 2014


                                          DA 13-0191

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 41



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

DAVID JAY WALTON,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twenty-First Judicial District,
                        In and For the County of Ravalli, Cause No. DC 11-172
                        Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Joseph P. Howard, Attorney at Law, Great Falls, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
                        Attorney General, Helena, Montana

                        William Fulbright, Ravalli County Attorney, Hamilton, Montana



                                                    Submitted on Briefs: January 22, 2014
                                                               Decided: February 18, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     David Jay Walton (Walton) appeals from the Judgment entered by the Twenty-First

Judicial District Court on his conviction and sentence for the offense of sexual assault, a

felony, in violation of § 45-5-502, MCA. We affirm and address the following issues:

¶2    1. Did the prosecutor commit plain error by commenting on witness credibility
during closing argument?

¶3     2. Did the District Court err by denying Walton’s motion for a new trial after the
court sua sponte questioned a key defense witness?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶4     J.L. is the biological mother of K.T., J.B., and A.B. J.L. and Walton became

romantically involved in 2008, and lived together off-and-on again for several years. During

2011, Walton resided with J.L. and her three children in Darby. On the evening of

December 15, 2011, K.T., eleven years old, watched television with her family and then

went to bed. K.T. testified that at some time during the night, she awoke to Walton

“plopping down” on her bed and kissing her on the lips. J.B., K.T.’s older half-brother,

testified that he heard Walton enter K.T.’s room and say, “I’m sleeping in here” or “I’m

sleeping with you.” K.T. explained that she eventually managed to fall back asleep, but was

again awoken when Walton got out of her bed to use the restroom. When he returned,

Walton lay down next to K.T. and began to rub her leg. He lifted K.T.’s shirt and touched

her chest but not her breasts. Walton then began to rub K.T.’s “lower area,” which, she

testified, felt “bad.” During the incident, Walton was “grunt[ing]” and the bed was shaking

slightly. He stopped and left the room when J.L. coughed and turned on the hallway light.



                                             2
¶5     In the morning, Walton and J.L. left for work together. Within ten minutes, K.T.

disclosed the events of the previous night to J.B. and asked him what the difference was

between being “raped and molested.” The two children did not discuss the incident further

on their way to school, but later that morning, J.B. contacted the school counselor and

informed him of K.T.’s disclosure. Shortly thereafter, Deputy Jon Moles of the Darby

Marshal’s Office was dispatched to the Darby school to investigate K.T.’s sexual assault

allegation. Deputy Moles interviewed J.B. and then drove to Walton’s place of employment

to interview him as well. K.T. was sent to the First STEP Resource Center at St. Patrick’s

Hospital in Missoula to undergo a forensic interview with Mary Pat Hansen (Hansen).

¶6     The State subsequently charged Walton with two counts of felony sexual assault in

violation of § 45-5-502, MCA. At trial, Walton relied on the defense theory that J.B.

pressured K.T. into fabricating the sexual assault allegation in order to get him out of the

family’s home. He testified that J.B. resented his authority and described their relationship

as “incredibly difficult.” J.L., the children’s mother, supported Walton’s defense theory and

testified on his behalf. At the outset of her testimony, J.L. stated the first and last names of

each of her three children. Each of the children has a different father and, thus, a different

last name. After J.L. concluded, the District Court engaged her in the following line of

questioning:

       THE COURT: Ma’am, I have a few questions for you. I’m trying to get the
       family figured out. Your oldest child is [A.B.]?

       THE WITNESS: [A.B.]

       THE COURT: Who is her father?


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       THE WITNESS: [F.B.]

       THE COURT: Who was that?

       THE WITNESS: [F.B.], B. . . .

       THE COURT: Okay. Where does he live?

       THE WITNESS: Morenci, Arizona.

       THE COURT: And then [J.B.’s] father is who?

       THE WITNESS: He doesn’t have one. He signed his rights over.

       THE COURT: Well, who is his birth father?

       THE WITNESS: [L.B.] He signed his rights over.

       THE COURT: [L.B.]?

       THE WITNESS: Yes.

       THE COURT: And who is [K.T.’s] father?

       THE WITNESS: [N.T.]

       THE COURT: Now, [J.B.] said he was living with his brother. Is his brother
       your son?

       THE WITNESS: No. It’s my ex-husband’s son.

       THE COURT: So this would be his stepbrother?

       THE WITNESS: His stepbrother, yes.

       THE COURT: All right.

Following this exchange, the court provided both parties the opportunity to further question

J.L., but they declined, and the witness was excused.




                                             4
¶7     Hansen testified about her forensic interview with K.T. and the subsequent medical

evaluation she performed. Hansen stated that her medical evaluation did not reveal any

significant physical findings, but explained that her conversation with K.T. caused her to

believe “that [K.T.’s] statements [were] consistent with a child who has experienced sexual

abuse.” As a result, Hansen recommended that K.T. undergo therapy.

¶8     During closing argument, the prosecutor referenced K.T.’s and Hansen’s testimony to

argue extensively that K.T. had experienced sexual abuse:

       The sexual assault that [K.T.] experienced, I think it’s interesting how Ms.
       Hansen, Mary Pat Hansen, with all of her background, hundreds of kids she’s
       interviewed, hundreds of kids she’s worked with, and the way that she
       expresses her opinion, the way she expresses that expert opinion is that what
       [K.T.] disclosed to her was consistent with a child who has experienced sexual
       assault. Not consistent with some story of sexual assault, not consistent with a
       version of sexual assault; consistent with an experience of sexual assault . . . .

                                           .   .   .

       What is it you are seeing, this is someone who experienced something as
       opposed to someone who is simply trying to tell a story.

                                           .   .   .

       But she knew what happened because she had experienced it. He kissed me.

                                           .   .   .

       The sensations that she’s able to describe are not made up. They are
       experienced.

                                           .   .   .

       And he said she’s struggling with what all this means because she experienced
       it.

                                           .   .   .


                                               5
      Five months later she described the same experience. Here we are roughly
      five months after that, she sat in here and described the same experience. This
      is an 11-year old girl that the Defendant would have you believe is
      maintaining a complex, rather—for 11, a rather sophisticated experience that
      whole time.

                                         .   .   .

      [J.B.] tells what he experienced. Because the next thing he experiences is a
      few hours later when his sister comes to him and says, Hey, they are playing
      the Wii, getting ready for school, whatever, not asking her mom, not asking
      her sister, she asks her brother. Tell me what the difference is between rape
      and molesting because I think one of those happened to me.

                                         .   .   .

      But everything else came from [K.T.] because she experienced it. She talked
      about it.

The prosecutor continued during rebuttal closing:

      They are asking an 11-year-old girl to maintain a complex, sophisticated, two
      levels—someone told her what to say, meaning [J.B.] told her what to say.
      She was able then to turn around and say it with enough sophistication,
      complexity, sensations, all the things that she would be expected to be able to
      say if she experienced it.

                                         .   .   .

      It doesn’t make any sense. He just—[K.T.] was sexually assaulted.

¶9    The jury convicted Walton on one count of sexual assault and acquitted him of the

other count. He moved for a new trial pursuant to § 46-16-702, MCA, but the District Court

denied his motion. Walton was sentenced to a state prison designated by the Department of

Corrections for a period of twenty years, with ten years suspended on conditions. Walton

appeals.




                                             6
                               STANDARD OF REVIEW

¶10    “We generally ‘do not address issues of prosecutorial misconduct pertaining to a

prosecutor’s statements not objected to at trial.’” State v. Aker, 2013 MT 253, ¶ 21, 371

Mont. 491, 310 P.3d 506 (quoting State v. Longfellow, 2008 MT 343, ¶ 24, 346 Mont. 286,

194 P.3d 694). However, we may review such an issue under the plain error doctrine. Aker,

¶ 21 (citation omitted). Plain-error review is appropriate only in those “‘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. McDonald, 2013 MT 97, ¶ 8, 369 Mont. 483, 299 P.3d 799 (citations

omitted). Plain-error review is discretionary and is applied sparingly on a case-by-case

basis. McDonald, ¶ 8 (citations omitted).

¶11    We review a district court’s denial of a motion for a new trial for abuse of discretion.

State v. Ugalde, 2013 MT 308, ¶ 26, 372 Mont. 234, 311 P.3d 772 (citations omitted).

                                       DISCUSSION

¶12 1. Did the prosecutor commit plain error by commenting on witness credibility
during closing argument?

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

24 of the Montana constitution guarantee criminal defendants the right to a fair trial by a

jury.” State v. Hayden, 2008 MT 274, ¶ 27, 345 Mont. 252, 190 P.3d 1091. Prosecutorial

misconduct “‘may be grounds for reversing a conviction and granting a new trial if the

conduct deprives the defendant of a fair and impartial trial.’” McDonald, ¶ 10 (quoting


                                              7
Hayden, ¶ 27). However, this Court “‘will not presume prejudice from the alleged

misconduct, rather the defendant must show that the argument violated his substantial

rights.”’ McDonald, ¶ 10 (quoting State v. Makarchuk, 2009 MT 82, ¶ 24, 349 Mont. 507,

204 P.3d 1213). We evaluate a prosecutor’s statements during closing argument in the

context of the argument as a whole. Ugalde, ¶ 62 (citation omitted). “A prosecutor’s

argument is not plain error if made in the context of discussing the evidence presented and

how it should be used to evaluate a witness’s testimony under the principles set forth in the

jury instructions.” Aker, ¶ 27 (citation omitted).

¶14    Walton argues that the “prosecutor violated [his] right to a fair trial by repeatedly and

improperly characterizing K.T. and J.B.’s testimony as truthful because they testified to what

they, in his personal opinion, ‘experienced’ as opposed to repeating a ‘story’ or fabrication.”

He asserts “[t]he prosecutor used ‘experience’ and ‘experienced’ to convince the jury he

possessed personal, omniscient knowledge Walton in fact sexually assaulted K.T.” Walton

argues this conduct invaded the province of the jury and violated the principle that a

“‘prosecutor should not express his or her personal belief or opinion as to the truth or falsity

of any testimony or evidence or the guilt of the defendant,’” citing ABA Standards for

Criminal Justice: Prosecution Function and Defense Function, Standard 3-5.8(b), 106 (3d

ed., ABA 1993). Walton relies heavily on our decision in Hayden to support his conclusion

that plain-error review is warranted in this case.

¶15    The State answers that the prosecutor “based his closing remarks upon the evidence

and properly argued to the jury what it could infer from the evidence.” The State cites cases

in which this Court has declined to exercise plain-error review of a prosecutor’s allegedly

                                               8
improper comments: Ugalde, ¶ 62 (prosecutor purported to speak as a young victim); Aker,

¶¶ 25, 31 (prosecutor allegedly commented on witness credibility); State v. Lacey, 2012 MT

52, ¶¶ 18-19, 26, 364 Mont. 291, 272 P.3d 1288 (prosecutor discussed whether certain

witnesses were candid and stated, “by God, he is [guilty].”); State v. Arlington, 265 Mont.

127, 157-58, 875 P.2d 307, 325 (1994) (prosecutor mentioned “a number of times, that [the

defendant] had lied to the jury.”); State v. Lindberg, 2008 MT 389, ¶¶ 33-35, 347 Mont. 76,

196 P.3d 1252 (prosecutor characterized a defense witness “as a ‘liar’ while arguing the

State’s evidence was genuine and truthful.”); State v. Rose, 2009 MT 4, ¶¶ 105, 107, 348

Mont. 291, 202 P.3d 749, superseded in part on other grounds, State v. Stops, 2013 MT 131,

370 Mont. 226, 301 P.3d 811 (prosecutor argued the defendant had told “‘the big lie’” to the

jury because he believed they were gullible and naïve); and State v. Rodgers, 257 Mont. 413,

416, 419, 849 P.2d 1028, 1030, 1032 (1993) (prosecutor told the jurors that the defendant

lied to their faces and described another witness’s testimony as a deliberate lie).

¶16    In Hayden, the State charged Hayden with felony drug possession, misdemeanor

possession of drug paraphernalia, and misdemeanor partner/family member assault after a

search of Hayden’s home substantiated Hayden’s son’s statements to police about Hayden’s

methamphetamine use and violent behavior. Hayden, ¶¶ 5-7. Hayden pled not guilty to all

of the charges and proceeded to trial. Hayden, ¶ 8. During the State’s case-in-chief, the

prosecutor elicited opinion testimony from the investigating officer about the truthfulness of

other witnesses. Hayden, ¶ 12. Then, during closing argument, the prosecutor told the jury

that, in particular, two of the State’s witnesses were “‘believable’” and that the jury could

“‘rely on’” the investigating officer’s testimony. The prosecutor also informed the jury that

                                              9
the search of Hayden’s home had been conducted properly, and that the officers do “‘good

work.’” Finally, the prosecutor stated that he was sure all of the items discovered during the

search were related to drugs. Hayden, ¶ 14. On appeal, this Court determined to exercise

plain-error review, finding that the prosecutor “impinged on the jury’s role by offering his

own opinion as to witnesses’ testimony” and “improperly testified . . . by vouching for the

efficacy of the search of Hayden’s residence.” Hayden, ¶¶ 32-33. Moreover, the prosecutor

impermissibly questioned the investigating officer “on the credibility of other witnesses.”

Hayden, ¶ 31.     Such conduct, we explained, “leaves unsettled the question of the

fundamental fairness of the proceedings.” Hayden, ¶ 33.

¶17    Unlike Hayden, we do not believe the prosecutor’s statements in the instant case rise

to the level of plain error under the governing standards of review. The prosecutor did not

directly opine about the truthfulness of a witness, offer his own testimony, or elicit

credibility testimony from other witnesses. We acknowledge that the prosecutor’s comments

could indicate a level of personal conviction and belief in the victim’s testimony. However,

as the State points out, “[i]mplicit in any prosecutor’s closing argument is the prosecutor’s

belief that the State’s witnesses are telling the truth—otherwise the prosecutor could not

ethically be arguing a case to a jury.” Furthermore, nothing in the record convinces us 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.” McDonald, ¶ 8. Therefore, we need not further address the

merits of Walton’s argument. This Court “will not set a precedent of presenting full analysis

whenever a party asserts that an issue not properly preserved for appeal constitutes plain

                                             10
error.” State v. Daniels, 2003 MT 247, ¶ 28, 317 Mont. 331, 77 P.3d 224. Walton “waived

[his] right to raise this claim on appeal by failing to object to the State’s closing arguments

during trial.” Ugalde, ¶ 62.

¶18 2. Did the District Court err by denying Walton’s motion for a new trial after the
court sua sponte questioned a key defense witness?

¶19    Section 46-16-702(1), MCA, provides in pertinent part: “Following a verdict or

finding of guilty, the court may grant the defendant a new trial if required in the interest of

justice.” It is essential to due process that a judge presides impartially in a criminal trial.

State v. Stafford, 208 Mont. 324, 329, 678 P.2d 644, 647 (1984). “[I]n our adversarial

system . . . the role of the trial judge is to regulate the proceedings and ensure that the trial is

fair.” State v. Price, 2006 MT 79, ¶ 21, 331 Mont. 502, 134 P.3d 45 (citation omitted). To

this end, a judge must avoid “‘officious interference’” in the proceedings. Price, ¶ 22

(quoting State v. Richardson, 69 Mont. 400, 403-04, 222 P. 418, 419 (1924)). However, a

judge need not “remain silent and passive throughout a jury trial . . . .” Price, ¶ 22 (citation

omitted). Montana Rule of Evidence 611(a) requires a district court to “exercise reasonable

control over the mode and order of interrogating witnesses and presenting evidence so as to

(1) make the interrogation and presentation effective for the ascertainment of the truth . . . .”

Indeed “[t]he court may interrogate witnesses, whether called by itself or a party; provided,

however, that in trials before a jury, the court’s questioning must be cautiously guarded so as

not to constitute express or implied comment.” M. R. Evid. 614(b).

¶20    Following the jury’s verdict, Walton moved for a new trial based on the District

Court’s decision to question J.L. regarding the identities of her children’s fathers. The


                                                11
District Court denied Walton’s motion, concluding that “[a]fter review of the trial transcript

excerpt and the Minute Entry of trial, . . . [the Court’s] questioning at the close of [J.L.’s]

testimony elicited no negative character evidence, should have caused [J.L.] no

embarrassment, and did nothing to impeach [J.L.’s] credibility in the eyes of the jury.” The

District Court determined that all of the information elicited from J.L. during its questioning

“was in evidence prior to the Court’s questions,” and that it had conducted the inquiry only

because “the family ties as described by the child witnesses during the State’s case [were]

somewhat confusing.”

¶21    Walton argues that the District Court’s “improper inquiry” denied him a fair trial by

placing J.L.’s prior sexual conduct at issue. He characterizes J.L.’s testimony as “crucial to

[his] defense,” and maintains that his conviction resulted from the jury rejecting J.L.’s

“implicit[] if not explicit[]” testimony that her children lied in this case. According to

Walton, the District Court’s inquiry “had no relevance to any issue raised during the trial . . .

[and] had the practical effect of conveying the impression J.L. was promiscuous—amounting

to an attack on her credibility by using improper character evidence.” Walton further argues

that the prosecutor was able to capitalize on the District Court’s “improper elicitation” by

“cast[ing] further aspersions on [J.L.’s] character, credibility, and fitness as mother” during

closing argument, as follows:

       I thought it’s important for you to know how badly [J.L.] is willing to throw
       her son under the bus.

                                             .    .   .

       But she’s willing to come in here and chuck little—big [J.B.] underneath the
       bus . . . .

                                                 12
                                            .    .   .

       Why is she so willing to throw [J.B.] under the bus for this guy?

                                            .    .   .

       Why? Because she’s willing to throw her kids under the bus for this guy.

       During rebuttal closing the prosecutor stated:

       Oh, and there’s proof because there’s no counseling for [K.T.] because mother
       of the year decided she doesn’t need counseling. I’ll leave that alone.

¶22    The State responds that the District Court “did nothing more than ask some brief

clarifying questions about matters already in the record to clear up its confusion about

familial relationships.” Such an inquiry, the State argues, did not call J.L.’s credibility into

question and did not serve to deny Walton a fair trial.

¶23    Although the District Court should have been more circumspect about the potential of

bringing improper attention to J.L.’s background, all of the information elicited by the court

during its inquiry had already been presented to the jury through appropriate questioning by

counsel. We cannot conclude that the court’s brief summation “constitute[d] express or

implied comment,” M. R. Evid. 614(b), about J.L.’s character or credibility. By clarifying

which of J.L.’s children belonged to which father, the court did not call into question J.L.’s

morality or impugn the truthfulness of her testimony. Moreover, we fail to see the

connection between the District Court’s inquiry and the prosecutor’s closing remarks that

Walton seeks to draw. Certainly, prosecutors should avoid using derogatory language and

epithets at trial. State v. White, 151 Mont. 151, 161, 440 P.2d 269, 275 (1968). However,

the District Court did not “open[] the door” to the prosecutor’s comments, and any perceived

                                                13
basis for objection to those comments could have been raised and addressed during the trial.

We conclude the District Court did not abuse its discretion when it determined that a new

trial was not warranted in the interest of justice.

¶24    Affirmed.

                                                      /S/ JIM RICE


We Concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ BETH BAKER




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