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State v. Hart12/14/2000
esses face to face is implicated during a prosecutor's closing arguments, it is conceivable that an accused's right to face to face confrontation could be burdened by allowing summation comments which negatively remark on the accused's presence during the testimony of adverse witnesses. We decline to determine whether this potential burden is a constitutionally impermissible one, however, because as addressed below, Hart has failed to meet the second prong of Finley.
51 In order to invoke our common law power of plain error review, Hart must also show that "failing to review the claimed error at issue would result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial proceedings or compromise the integrity of the judicial process." Pizzichiello, 15.
The instances in which we have exercised our common law power of plain error review are rare. See Pizzichiello, 10 (observing that, as of time of briefing, we had only exercised it in 3 cases out of 14 requests).
52 Hart has not shown that failing to review the admission of the State's comments during summation would result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial proceedings, or compromise the integrity of the judicial process. Hart maintains that allowing the prosecutor to make such comments during her closing arguments "had the effect of chilling the exercise of his constitutional rights." However, the prosecutor's statements could not have "chilled" Hart's exercise of his right to confront adverse witnesses face to face because those comments occurred during the prosecutor's summation, after he had already exercised his right to meet adverse witnesses. Furthermore, we are not convinced that by refusing to review this claim raised for the first time on appeal, Hart will have suffered a manifest miscarriage of justice. It is not at all "manifest" that Hart's conviction was the result of this alleged error. Three eyewitnesses all testified that Hart had the cattle prod in his pocket and that Hart assaulted Shandel with it. We are also not convinced that by refusing to review this claim we will leave unsettled the question of the fundamental fairness of Hart's trial proceedings or that we will compromise the integrity of the judicial process. We will continue to use our inherent power of plain error review sparingly and only in exceptional cases meeting one of the above criteria. See Finley, 276 Mont. at 138, 915 P.2d at 215; see also State v. Dahlin, 1998 MT 113, 289 Mont. 182, 961 P.2d 1247 (reviewing claim that defendant did not waive right to a jury trial in writing as required by statute); State v. Weaver, 1998 MT 167, 290 Mont. 58, 964 P.2d 713 (reviewing claim that jury verdict may not have been unanimous). Hart's claim does not present such an exceptional case.
53 We decline to address Hart's contention that the prosecutor's summation violated his right to face to face confrontation as guaranteed under Article II, Section 24 of the Montana Constitution. Hart has failed to demonstrate that this is an appropriate use of our common law power of plain error review.
ISSUE FOUR
54 Whether the District Court erred when it imposed a dangerous weapon sentence enhancement?
55 The District Court sentenced Hart to ten-years' imprisonment for felony assault with a weapon and enhanced Hart's sentence by two additional years imprisonment pursuant to § 46-18-221, MCA, the dangerous weapon enhancement statute. In State v. Guillaume, 1999 MT 29, 293 Mont. 224, 975 P.2d 312, we held that the application of the weapon enhancement statute to felony convictions where the un
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