Town of Columbus v. Harrington12/11/2001
ory evidence to Newell's testimony about what he observed; 5) the prosecutor's remark in closing that he and Newell are part of a statewide team "that's concerned about DUI detection and DUI enforcement. . . . So in effect myself, Officer Newell, we're representing the citizens of this town, but I-and what we're trying to do is enforce and prosecute DUI laws not only for the protection of the citizens of this town, but the citizens everywhere that might be using the highways;" and 6) the prosecutor's comments regarding the defense and its counsel during closing, for example, "I think you'll hear from Mr. Thomas anything's possible. That would be the defense, the argument, the anything-is-possible defense." None of these remarks were objected to at trial.
The general rule is that the defendant is limited to those issues that were properly preserved in the district court. State v. Baker, 2000 MT 307, 12, 302 Mont. 408, 12, 15 P.3d 379, 12. Harrington argues, though, that this Court should review these errors under the common law plain error doctrine we articulated in State v. Finley (1996), 276 Mont. 126, 915 P.2d 208. In Finley, this Court held that it
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. Finley, 276 Mont. at 137, 915 P.2d at 215.
When we determine the applicability of the common law plain error doctrine, we consider the totality of the circumstances in each case. Baker, 13. The plain error rule is reserved for exceptional cases and should be used sparingly. When invoking this doctrine, the Court evaluates the nature of the constitutional rights implicated, and not the sufficiency of the evidence. Baker, 13.
Harrington's issues 1 through 4 implicate his Fifth Amendment right to remain silent and his right to due process. We have held that these are fundamental constitutional rights and are therefore subject to review under the plain error doctrine. Finley, 276 Mont. at 138, 915 P.2d at 216. See also State v. Sullivan (1996), 280 Mont. 25, 32-33, 927 P.2d 1033, 1038. We conclude that Harrington's objections 5 and 6 do not implicate constitutional rights and therefore will not be reviewed.
Harrington argues that the prosecutor's comments concerning his post-Miranda silence made during voir dire and closing argument and the testimony elicited during the State's case-in-chief violated his right to due process of law as set forth in Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91.
In Doyle, the United States Supreme Court held that a prosecutor's use for impeachment purposes of a defendant's silence maintained after Miranda warnings was fundamentally unfair because Miranda warnings inform a person of his right to remain silent and assure him that his silence will not be used against him. Sullivan, 280 Mont. at 33, 927 P.2d at 1038 (citing Doyle, 426 U.S. at 619, 96 S.Ct. at 2245, 49 L.Ed.2d at 422).
In Sullivan, we held that a prosecutor's comments on post-Miranda silence constituted Doyle error. Sullivan, 280 Mont. at 35, 927 P.2d at 1039. In that case, during his opening, the prosecutor said, "The defendant . . . refused to give a statement at first when advised of his rights." During direct examination, the detective stated, "I read an adult waiver form to hi
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