Montana Case Law
STATE v. UPSHAW, 2006 MT 341 STATE OF MONTANA, Plaintiff
and Respondent, v. ADRIENNE UPSHAW, Defendant and
Appellant. No. 04-717. Supreme Court of Montana.
Submitted on Briefs: October 19, 2005. Decided: December
21, 2006.
Appeal From: The District Court of the Fourth Judicial
District, In and For the County of Missoula, Cause
DC-2003-267, Honorable John W. Larson, Presiding Judge.
For Appellant: Patricia Bik, Attorney at Law, Helena,
Montana.
For Respondent: Honorable Mike McGrath, Attorney General;
Jim Wheelis, Assistant Attorney General, Helena, Montana
Fred Van Valkenburg, County Attorney; Andrew W. Paul,
Deputy County Attorney, Missoula, Montana.
Justice Jim Rice.
Justice Jim Rice delivered the Opinion of the Court.
¶ 1 Adrienne Upshaw (Upshaw) appeals from a jury
verdict, judgment, and sentence of the Fourth Judicial
District Court, Missoula County, adjudicating her guilty of
the offenses of assault with a weapon, aggravated burglary,
and criminal possession of dangerous drugs. We affirm.
¶ 2 We consider the following issues on appeal:
¶ 3 (1) Did the State improperly elicit testimony
regarding Upshaw’s post-Miranda silence and is this issue
reviewable under the common law plain error doctrine?
¶ 4 (2) May Upshaw’s claims of ineffective
assistance of counsel be raised on direct appeal?
¶ 5 (3) Did the District Court err by failing to
consider the presumption that Upshaw was entitled to
deferred imposition of sentence for possession of dangerous
drugs?
BACKGROUND
¶ 6 On June 12, 2003, at approximately 3:00 a.m.,
Upshaw broke into the home of Brenda Parmer (Parmer) in
Missoula, Montana. Parmer, who was sixty-one years old,
lived with her son, Brian Pierre (Brian), and her two
granddaughters, Brandy Hiner (Hiner) and Lueanna Pierre
(Lueanna), Brian’s daughter. Four young men assisted Upshaw
with the break-in, and all the intruders wore bandanas over
their faces. Parmer testified that Upshaw pushed her to the
floor and commanded her to “stay.” One young man kicked a
hole in the bedroom door; another kicked in the door to
Hiner’s bedroom and kicked her in the face, and Upshaw
threatened Hiner with a knife. Lueanna, who shared a
bedroom with Hiner, took the telephone into her closet and
called the police.
¶ 7 Upshaw and her co-intruders fled before police
arrived. In her statement to the police, Hiner identified
Upshaw as the assailant. Hiner told the interviewing
officer that she was positive it was Upshaw, and that she
was afraid she would be killed. Hiner, who was twenty-one
years old at the time of trial, testified that she first
met Upshaw in jail in 2002, and that they had been friends,
but she did not recall for how long. She said that she had
kissed Upshaw, but denied any sexual relationship. She
testified that she had been at a friend’s house on the
evening of June 11, 2003, before the assault occurred on the
morning of June 12, and that she and Upshaw had had a
disagreement. During the trial, Hiner read a portion of her
earlier police interview in which she said Upshaw was
“psycho because she drinks all the time” and that Upshaw
had been angry with her and had acted as if Hiner were “her
girlfriend or something.”
¶ 8 Lueanna testified at trial that on June 11,
2003, she picked Hiner up at a mutual friend’s house and
Upshaw slashed her tires before Hiner got in the car, using
a knife with a black handle. Lueanna said she drove away,
ruining her tires and rims, because she was frightened and
did not want to suffer more damage to her car. Upshaw was
arrested the afternoon of June 12, 2003, and the police
found a small blue plastic box in her pocket which
contained trace amounts of methamphetamine.
¶ 9 Detective Baker, of the Missoula City Police
Department, was the primary investigator in the case. He
testified that Hiner and Lueanna immediately identified
Upshaw as their assailant in a photographic lineup. Parmer
was unable to identify Upshaw in the lineup, but stated
that she recognized Upshaw’s voice. Brian did not recognize
anyone in the six photographs used for the lineup.
¶ 10 The State filed an information charging Upshaw
with count I: assault with a weapon, a felony, as specified
in § 45-5-213, MCA (2003); count II: aggravated
burglary, a felony, as specified in § 45-6-204(2),
MCA (2003); and count III: aggravated burglary. Upshaw was
represented by counsel, Margaret Borg and Ed Sheehy, at all
stages of the trial proceedings. Upshaw entered pleas of
not guilty. On November 21, 2003, the State filed an
amended information, which added count IV: criminal
possession of dangerous drugs, a felony, as specified in
§ 45-9-102, MCA (2003). At a pretrial conference,
Upshaw’s counsel declared an intention to file a motion in
limine to preclude any reference to Upshaw’s prior crime of
allegedly stabbing her sister. The State advised they would
concede this issue. A jury trial was held, and the jury
found Upshaw guilty on counts I, II, and IV; count III was
dismissed during trial upon stipulation of the parties.
¶ 11 The District Court sentenced Upshaw to
concurrent terms of twenty years with five years suspended
on counts I and II, to be served at the Women’s
Correctional Facility in Billings, Montana. On count IV,
Upshaw received a five-year sentence, to run concurrently
with the sentences on counts I and II. Upshaw’s trial
counsel withdrew on June 7, 2004. The court appointed
Patricia Bik on July 1, 2004, to represent Upshaw on
appeal.
STANDARD OF REVIEW
¶ 12 “This Court may discretionarily review claimed
errors that implicate a criminal defendant’s fundamental
Constitutional rights, even if no contemporaneous objection
is made and notwithstanding the applicability of §
46-20-701(2), MCA, criteria, where failing to review the
claimed error 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.” State v.
Godfrey, 2004 MT 197, ¶ 22, 322 Mont. 254, ¶
22, 95 P.3d 166, ¶ 22 (citing State v. Finley, 276
Mont. 126, 137, 915 P.2d 208, 215 (1996)). “We use our
inherent power of common law plain error review sparingly,
on a case-by-case basis, and only in the class of cases
aforementioned.” Godfrey, ¶ 22 (citing Finley, 276
Mont. at 138, 915 P.2d at 215). “The particular facts and
circumstances of each case drive the applicability of the
plain error doctrine.” Finley, 276 Mont. at 134, 915 P.2d
at 213.
¶ 13 We review claims of ineffective assistance of
counsel de novo. State v. Turner, 2000 MT 70, ¶ 47,
302 Mont. 69, ¶ 47, 12 P.3d 934, ¶ 47. We
review a criminal sentence for legality to determine
whether the sentence is within the parameters provided by
statute. State v. Montoya, 1999 MT 180, ¶ 15, 295
Mont. 288, ¶ 15, 983 P.2d 937, ¶ 15.
DISCUSSION Issue One
¶ 14 Did the State improperly elicit testimony
regarding Upshaw’s post-Miranda silence and is this issue
reviewable under the common law plain error doctrine?
¶ 15 Upshaw urges this Court to invoke plain error
review and reverse her conviction. She argues that the
State violated her constitutional right to due process and
privilege against self-incrimination by eliciting testimony
from a law enforcement officer at trial that informed the
jury of Upshaw’s decision to remain silent after she
received Miranda warnings. Upshaw contends that Doyle v.
Ohio, 426 U.S. 610, 96 S. Ct. 2240 (1976), is controlling
and requires reversal of her conviction.
¶ 16 The State responds that the prosecutor did not
commit Doyle error by eliciting evidence of Upshaw’s
post-Miranda silence. It contends that the evidence came
from a non-responsive answer by an officer, and that the
prosecutor did not capitalize on the answer. It argues that
the remarks at issue here differ in two important respects
from those in Doyle: the prosecution did not deliberately
seek to put the evidence before the jury, and the
prosecution did not use the evidence of post-Miranda
silence to impeach Upshaw.
¶ 17 In reply, Upshaw argues that the cases the
State uses to support its argument are not applicable. She
contends that her claim of error mirrors that of the
defendant in Finley, and thus plain error review is
appropriate. Upshaw asserts that the evidence of her
post-Miranda silence undermined her credibility before the
jury. She contends that once her refusal “to tell her side
of the story” was put before the jury by Detective Baker,
the prosecutor let the inference of guilt raised by her
silence “work its magic” on the jury.
¶ 18 In Doyle, the United States Supreme Court held
that the State may not seek to impeach a defendant’s
exculpatory story, told for the first time at trial, by
cross-examining the defendant about his failure to have
told the story after receiving Miranda warnings at the time
of his arrest. 426 U.S. at 611, 96 S. Ct. at 2241. In
Doyle, the defendants were arrested together and charged
with selling ten pounds of marijuana to a local narcotics
bureau informant. They were convicted in separate trials,
held approximately one week apart, during which the
prosecutor asked each of the two defendants why they had
not maintained their innocence and given their “frame-up”
story on their arrest. During the course of their state
criminal trials, the defendants, who were given Miranda
warnings after their arrest, took the stand and gave an
exculpatory story they had not previously told to the
police or the prosecutor. The cross-examination of
defendant Doyle contained the following exchange:
Q. [By the prosecutor] . . . You are innocent? A. [By
Doyle] I am innocent. Yes Sir. Q. That’s why you told the
police department and Kenneth Beamer when they arrived
— (Continuing.) — about your innocence? A. .
. . I didn’t tell them about my innocence. No. Q. You said
nothing at all about how you had been set up? Q. Did Mr.
Wood? A. Not that I recall, Sir. Q. As a matter of fact,
if I recall your testimony correctly, you said instead
of protesting your innocence, as you do today, you said in
response to a question of Mr. Beamer — I don’t know
what you are talking about. A. I believe what I said
— What’s this all about? If I remember, that’s the
only thing I said. A. I was questioning, you know, what it
was about. That’s what I didn’t know. I knew that I was
trying to buy, which was wrong, but I didn’t know what
was going on. I didn’t know that Bill Bonnell was trying
to frame me, or what-have-you. Q. All right — But
you didn’t protest your innocence at that time? A. Not
until I knew what was going on.
Doyle, 426 U.S. at 614, n. 5, 96 S. Ct. at 2243, n. 5. In
addition, the court permitted the prosecutors, over
objections, to argue the petitioners’ post-arrest silence
to the jury in their closing arguments. Doyle, 426 U.S. at
614, n. 5, 96 S. Ct. at 2243, n. 5. The Supreme Court
reversed the conviction and stated:
[W]hile it is true that the Miranda warnings contain no
express assurance that silence will carry no penalty, such
assurance is implicit to any person who receives the
warnings. In such circumstances, it would be fundamentally
unfair and a deprivation of due process to allow the
arrested person’s silence to be used to impeach an
explanation subsequently offered at trial.
426 U.S. at 618, 96 S. Ct. at 2245.
¶ 19 Applying Doyle, this Court has held that
“[o]nce a Miranda warning of any sort is given, it is error
for a prosecutor to comment on a defendant’s post-Miranda
silence or his failure to offer a post-Miranda explanation
of the alleged crime.” Godfrey, ¶ 31. Here, Upshaw
argues that the testimony elicited from the detective by
the prosecutor violated her right to due process and her
privilege against self-incrimination. Because Upshaw’s
counsel did not object to the testimony at trial, we must
first determine whether this issue is reviewable under the
common law plain error doctrine.
¶ 20 In Godfrey, this Court held that the plain
error doctrine was not applicable. Godfrey’s appeal stemmed
from two instances of prosecutorial misconduct. First, the
prosecutor began his cross-examination of Godfrey as
follows:
Q. Mr. Godfrey . . . how old are you?
A. I’ll be 35 December 15.
Q. Old enough to have explanations for certain events;
isn’t that right?
A. I’m not following you.
Q. Well, you have an explanation for what took place in
October in your bus, don’t you?
A. That’s the truth.
Q. And you have another explanation for what took place
in the summer of `99 in the bus, don’t you?
A. Yes.
Q. Okay. And it’s been nearly seven months since the time
of that initial search warrant, hasn’t it been?
A. Yes.
Q. So, you had seven months to think up an explanation,
isn’t that true?
A. I didn’t think nothing up. I’m telling the truth.
Q. And this is the first time that anyone has really
heard this explanation; isn’t that correct? A. No, it’s
not.
Godfrey, ¶ 18. Godfrey’s counsel did not object to
this line of questioning. The second incident occurred at
the end of trial, when the prosecutor, again without
objection from Godfrey’s counsel, stated in his closing
argument: “[h]e knew it was always going to be his word or
my word type of thing. He always knew that. He’s not a
dummy. You saw him testify. He articulates well. He’s got
an explanation. He’s had plenty of time to think about it.”
Godfrey, ¶ 19. This Court held, “[w]e conclude that
the particular facts of this case do not compel the
application of the plain error doctrine because there simply
was no clear comment on or infringement of Godfrey’s
fundamental right to remain silent.” Godfrey, ¶ 40.
¶ 21 In Town of Columbus v. Harrington, 2001 MT 258,
307 Mont. 215, 36 P.3d 937, the prosecutor, during a
driving under the influence (DUI) prosecution: (1)
commented during voir dire that the defendant did not “have
to take the stand . . . [h]e can take the stand if he wants
to”; (2) elicited testimony that the defendant invoked his
Miranda rights; and (3) elicited testimony that further
police questioning would have been improper after a
defendant invokes his Miranda rights. Harrington, ¶
10. We held that these actions did not constitute Doyle
error because “[n]o comment was made that Harrington at any
time refused to give a statement or refused to testify.”
Harrington, ¶ 17. The fourth error in Harrington
occurred during closing arguments when the prosecutor
stated that the defendant offered no contradictory evidence
to dispute the law enforcement officer’s observations.
Since Harrington himself was the only competent witness who
could have offered testimony to counter the officer, this
Court concluded that the prosecutor’s comment constituted
an improper reference to the defendant’s decision not to
testify. Harrington, ¶ 21. We subjected the fourth
error to plain error review and concluded that the error
was harmless. Harrington, ¶ 26.
¶ 22 In State v. Sullivan, 280 Mont. 25, 927 P.2d
1033 (1996), the prosecutor commented on Sullivan’s silence
in his opening statement, introduced testimony regarding
Sullivan’s decision to remain silent during direct
examination of the detective, and commented on Sullivan’s
silence twice during his closing argument. Sullivan’s
counsel did not object to these remarks. This Court invoked
the common law plain error doctrine, and determined that
Sullivan’s constitutional right to due process had been
violated. We held that “the prosecutor committed Doyle
error when he commented on Sullivan’s post-Miranda silence
during the State’s opening statement, case-in-chief, and
closing argument.” Sullivan, 280 Mont. at 35, 927 P.2d at
1039. ¶ 23 Similarly, in State v. Furlong, 213 Mont.
251, 690 P.2d 986 (1984), this Court found Doyle error when
the prosecutor questioned the defendant thusly:
Q. Is this the first time you have told this story to
anyone, Mr. Furlong?
A. Except what I have discussed with my lawyer.
Q. You didn’t think to tell the Police, the investigator,
the County Attorney this before?
A. Nobody came to me and asked me what happened.
Q. You are charged with a felony crime. Do you understand
that?
A. Yes.
Q. You never thought about just mentioning that to
somebody, did you?
A. Mentioning what?
Q. That you have no idea how the property got in your
car, never crossed your mind to mention that to anybody?
A. What do you mean?
Q. When you were arrested by Sergeant Krakalia, you
didn’t just happen to mention, I don’t know how that
property got in there. I loaned my car to Johnny and he
came back with it?
A. I didn’t say anything.
Q. But you are going to be arrested on a felony crime and
you don’t think to offer an explanation when you are a
totally innocent victim?
Furlong, 213 Mont. at 256-57, 690 P.2d at 989. At that
point, Furlong’s attorney asked that the jury be instructed
that nobody is required to give a statement in that
situation and what it would prove would be merely
speculation; this was overruled. Furlong, 213 Mont. at 257,
690 P.2d at 989. On appeal, this Court concluded that the
prosecutor’s extensive cross-examination regarding his
post-Miranda silence rose to the level of Doyle error and
denied Furlong’s constitutional right to due process.
Furlong, 213 Mont. at 258, 690 P.2d at 989. The Godfrey
Court distinguished the facts before it from those in
Sullivan and Furlong. Godfrey, ¶ 37.
¶ 24 In the instant case, Upshaw alleges her
constitutional rights were violated during the State’s
questioning of Detective Baker. The questioning and
testimony were as follows, to which no objection was made:
Q. [By Mr. Paul] Officer tell us — Detective, tell
us what happened next. A. [Detective Baker] She [Upshaw]
was placed under arrest. She had outstanding warrants, and
I told her that we were going to go down to the police
department, and I was going to give her a chance to talk
to me and be interviewed to provide her side of the story
because there’s always two sides. . . . Q. So did you get
a chance to speak with the defendant there at the police
station? A. I spoke with Adrienne Upshaw in — in an
interview setting . . . I turned on the audio recording
device, cassette tape; again advised her of the Miranda
Warning before any questions were asked of her; and she
invoked her right to have an attorney before any questions
so the interview was stopped. I believe her interview
lasted no more than two minutes from the time the tape was
on until it was turned off.
On appeal, Upshaw concedes that the prosecutor did not
comment directly on her silence during opening or closing
statements, but argues that the jury instead learned of her
decision to exercise her right to remain silent after her
arrest through “the carefully crafted” testimony of
Detective Baker. Upshaw contends that Detective Baker’s
testimony “set the stage” for the jury to infer that an
innocent person in Upshaw’s position would have “seized the
chance to talk” to law enforcement and would have told “her
side of the story” to clear her name.
¶ 25 The State contends that neither of the
prosecutor’s questions invited the detective’s answers
which revealed Upshaw’s post-Miranda silence. The State
argues that no Doyle error occurred because the prosecutor
did not attempt to capitalize on the detective’s detailed
and essentially non-responsive answers, that he did not
question or confront Upshaw on this issue when he
cross-examined her, and that he did not refer to her
post-Miranda silence during his final argument.
¶ 26 The brief mention of Upshaw’s choice to remain
silent was confined to a minor portion of the detective’s
testimony. The prosecutor did not pursue this issue, did
not use the testimony to impeach Upshaw, and made no
mention of it in either his cross-examination of Upshaw or
in his closing argument. Unlike in Sullivan and Furlong, the
prosecutor here did not comment upon the fact that Upshaw
had failed earlier to volunteer her version of events to
the police. “A fundamental aspect of `plain error,’ is that
the alleged error must indeed be `plain.'” Godfrey,
¶ 38. The error should leave one firmly convinced
that the prosecutor’s comments created an inference for the
jury that by remaining silent after receiving her rights,
the defendant must be guilty of the alleged crime. Godfrey,
¶ 38. What occurred here does not lead to this firm
conviction.
¶ 27 We conclude that the facts of this case do not
call for the application of the plain error doctrine
because there was no clear comment on or infringement of
Upshaw’s fundamental right to remain silent.
Issue Two
¶ 28 May Upshaw’s claims of ineffective assistance
of counsel be raised on direct appeal?
¶ 29 Upshaw argues that her trial counsel rendered
ineffective assistance of counsel in failing to object to
numerous issues at trial, including: (a) testimony alleging
that Upshaw packed a knife, testimony regarding Upshaw’s
other crimes, and testimony regarding an alleged lesbian
liaison; (b) the filing of the allegedly unlawful amended
information; and (c) the State’s alleged Doyle error.
¶ 30 The State argues that Upshaw’s ineffectiveness
claims should be deferred for post-conviction relief. The
State maintains that Upshaw’s ineffectiveness claims based
on her counsel’s failure to object are not record-based
because a decision of whether to object to evidence is
largely a tactical one, not one dictated by rote observance
of evidentiary rules, and counsel should be given an
opportunity to explain his tactical decisions.
¶ 31 In reply, Upshaw argues that she seeks review
of her counsel’s ineffective assistance under the exception
to the record-based rule — namely, that no plausible
tactical explanation exists to justify counsel’s inaction.
¶ 32 Article II, Section 24, of the Montana
Constitution and the Sixth Amendment guarantee a person the
right to the effective assistance of counsel. When
reviewing claims of ineffective assistance of counsel, this
Court uses the two-pronged test set forth in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). That test
requires the defendant to establish that counsel’s
performance “fell short of the range of competence required
of attorneys in criminal cases and that counsel’s deficient
performance was prejudicial to his case.” State v.
Hendricks, 2003 MT 223, ¶ 6, 317 Mont. 177, ¶
6, 75 P.3d 1268, ¶ 6. There is a strong presumption
with regard to the first prong of the Strickland test that
trial counsel’s performance was based on sound trial
strategy and falls within the broad range of reasonable
professional conduct. Hendricks, ¶ 7.
¶ 33 However, before reaching the merits of an
ineffective assistance claim, this Court must first
determine whether the allegations are properly before the
Court on appeal or whether the claim should be raised in a
petition for post-conviction relief, pursuant to §
46-21-105(2), MCA. State v. Dyfort, 2000 MT 338, ¶ 8,
303 Mont. 153, ¶ 8, 15 P.3d 464, ¶ 8. The
general rule is:
[W]here ineffective assistance of counsel claims are
based on facts of record in the underlying case, they must
be raised in the direct appeal; conversely, where the
allegations of ineffective assistance of counsel cannot be
documented from the record in the underlying case, those
claims must be raised by petition for postconviction
relief.
Hagen v. State, 1999 MT 8, ¶ 12, 293 Mont. 60,
§ 12, 973 P.2d 233, ¶ 12. The test to
determine if an ineffective assistance claim is properly
brought on direct appeal is whether the record contains the
answer as to “why” counsel took, or failed to take, action
in providing a defense. State v. White, 2001 MT 149,
¶ 20, 306 Mont. 58, ¶ 20, 30 P.3d 340,
¶ 20. Decisions regarding the number and timing of
objections lie within counsel’s tactical discretion. White,
¶ 16. As a result, “non-record based information
explaining the tactic may be involved, and thus [the claim]
should be barred from review on direct appeal.” White,
¶ 16. A non-record based act or omission by counsel
can include a failure to object to the admission of
evidence, since “the use or non-use of objections may be
purely tactical.” State v. Webster, 2005 MT 38, ¶
15, 326 Mont. 112, ¶ 15, 107 P.3d 500, ¶ 15.
If the record does not fully explain why counsel failed to
object to the admission of evidence, the matter is best
suited for post-conviction proceedings. State v. Notti,
2003 MT 296, ¶ 8, 318 Mont. 146, ¶ 8, 79 P.3d
289, ¶ 8. In State v. Dyfort, counsel’s failure to
object to the admission of a defendant’s plea agreement
resulted from an off-record discussion at trial. Thus, the
record was inadequate to explain why counsel had, in fact,
consented to the admission of the evidence. Dyfort, ¶
11. See also State v. St. John, 2001 MT 1, 304 Mont. 47, 15
P.3d 970 (counsel’s failure to object on the record to a
district court’s failure to consider sentencing
alternatives was not record-based, and therefore was an
inappropriate claim for direct appeal).
¶ 34 An exception to the requirement for a
record-based answer as to why counsel acted or failed to
act arises where “no plausible justification” exists to
counter a claim of ineffective assistance on appeal. State
v. Kougl, 2004 MT 243, ¶ 15, 323 Mont. 6, ¶
15, 97 P.3d 1095, ¶ 15. Circumstances in which this
exception arises are rare. Kougl, ¶ 15. State v.
Jefferson, 2003 MT 90, 315 Mont. 146, 69 P.3d 641, is an
example of when the exception applies. In Jefferson, the
defendant withdrew a guilty plea to a felony assault
charge. In doing so, he indicated that he wished to seek an
acquittal. The defendant was subsequently tried for the
more serious charge of attempted homicide. In his remarks
to the jury, defense counsel admitted that the defendant
was guilty of felony assault. This statement totally
undermined the defendant’s attempt to obtain a complete
acquittal on all charges. In that situation, we found that
there was “no plausible justification for counsel’s conduct
under these circumstances.” Jefferson, ¶ 50.
¶ 35 As we stated in Kougl, “given the existence of
a `plausible’ (but not necessarily `actual’) justification,
the proper action for this Court was to dismiss the appeal
without prejudice and allow the defendant to seek relief
through a postconviction hearing.” Kougl, ¶ 19.
Applying the foregoing to the case at bar, we examine each
of Upshaw’s allegations individually.
a. Failure to object to character testimony about Upshaw
carrying a knife, testimony regarding Upshaw’s other
crimes, and testimony from Upshaw regarding an alleged
lesbian liaison.
¶ 36 Upshaw first argues that her trial counsel’s
failure to object to testimony alleging that she “packed a
knife” constitutes ineffective assistance of counsel.
Upshaw contends that pursuant to M. R. Evid. 404 and 405,
evidence of her character and reputation was inadmissible.
She further contends that no plausible explanation can
frame counsel’s failure to object to the testimony as a
tactical decision, and that because of this, the reason why
counsel remained silent is irrelevant. The State responds
that none of the evidentiary issues that Upshaw appeals
support a record-based claim of ineffectiveness.
Alternatively, the State contends that Upshaw’s argument
fails because the testimony was admissible evidence.
¶ 37 Second, Upshaw argues that her trial counsel
was ineffective because he did not object to questions
regarding her earlier charge for stabbing her sister, a
matter on which the District Court had granted her motion
in limine. The State argues that this issue is
inappropriate for direct appeal and should be reserved for
post-conviction relief. Alternatively, the State argues
that Upshaw’s answers to other questions opened the door to
this topic, and her counsel’s failure to object did not
constitute ineffective assistance of counsel.
¶ 38 Third, Upshaw argues that her trial counsel was
ineffective because he failed to object to the prosecutor’s
questioning of herself and Hiner about whether they had a
lesbian relationship. She argues that the questions were
irrelevant and inflammatory. The State argues that this
issue is not appropriate for direct appeal and should be
reserved for post-conviction relief. Alternatively, the
State argues that evidence of a relationship between Hiner
and Upshaw was relevant because it helped establish a
motive for Upshaw’s behavior.
¶ 39 Upon review of the record, we determine that it
does not fully explain why defense counsel did not object
to the testimony. During the prosecutor’s cross-examination
of Upshaw regarding her use of knives, three discussions
took place off the record, thus making it impossible for us
to determine defense counsel’s reasons for not objecting to
this evidence. At a March 4, 2004, pretrial hearing, the
court granted Upshaw’s motion in limine to “preclude any
reference to [Upshaw’s] prior charge of allegedly stabbing
her sister.” At trial, during the prosecution’s
cross-examination of Upshaw, the prosecutor questioned
Upshaw regarding evidence of her past crimes, including the
stabbing of her sister. The record reveals that defense
counsel did not object to either the prosecution’s
questions or the defendant’s testimony regarding the facts
and circumstances surrounding Upshaw’s prior criminal
charge and subsequent conviction. However, a review of the
record reveals that, during this testimony, the prosecutor
requested to approach the bench, and a discussion took
place between counsel and the judge off the record. In
addition, during Upshaw’s cross-examination, the prosecutor
requested a sidebar with counsel before the bench, and the
court announced a fifteen minute recess. It was after this
break that the prosecutor brought up the June 22, 2001,
aggravated assault charge against Upshaw for stabbing her
own sister.
¶ 40 Similarly, during a portion of Hiner’s
testimony regarding her and Upshaw’s relationship, off the
record discussions took place — in fact, during
Hiner’s direct examination, no less than four discussions
took place off the record. Obviously, significant
discussions were held regarding these evidentiary issues
which we have no access to. Consequently, counsel’s reasons
for not objecting to this testimony regarding other crimes
are not discernible from the record, and we will not
speculate on those reasons, and whether they were
appropriately tactical. Additionally, we cannot conclude
that there is no plausible justification for this lack of
objections. As we have noted, whether or not to object is
typically a tactical decision, White, ¶ 16, and we
declined to undertake review of an evidentiary issue that
involved an off the record discussion in Dyfort. Dyfort,
¶¶ 11-12. There may be a plausible
justification for counsel’s actions, and thus the issues
should be reserved for a post-conviction relief proceeding.
b. Failure to object to the amended information.
¶ 41 Upshaw argues that her counsel was ineffective
because he did not object to the amended information, which
included two charges of aggravated burglary arising out of
a single structural entry. The State argues that resolution
on this matter should likewise await a post-conviction
relief proceeding. Alternatively, the State argues that
because one of the aggravated burglary charges (count III)
was ultimately dismissed by the court at trial, waiting
until that time to dismiss the count did not prejudice
Upshaw because the evidence related to the additional count
was nevertheless admissible under § 26-1-103, MCA
(2003).
¶ 42 The amended information charged Upshaw with one
count of assault with a weapon, two counts of aggravated
burglary, and one count of criminal possession of dangerous
drugs. One of the counts of aggravated burglary was later
dismissed. Based on the foregoing analysis and upon our
review of the record, we determine that the record does not
fully explain why defense counsel failed to object to this
charge earlier in the proceeding. We conclude that there
may be a plausible justification, and it is more
appropriate for post-conviction relief.
c. Failure to object to the State’s alleged Doyle error.
¶ 43 Upshaw contends that her counsel’s failure to
object to Detective Baker’s testimony regarding the
invoking of her right to silence constitutes deficient
performance. However, as we determined earlier, the State’s
questioning of Detective Baker did not rise to the level of
Doyle error, and thus the argument of ineffective assistance
of counsel on this point is without merit.
¶ 44 We conclude that we cannot address Upshaw’s
remaining ineffective assistance of counsel claims without
considering matters outside the record. All of her
remaining contentions would be more appropriately raised in
a post-conviction relief proceeding. Therefore, we dismiss
Upshaw’s claims of ineffective assistance of counsel without
prejudice to post-conviction relief.
Issue Three
¶ 45 Did the District Court err by failing to
consider the presumption that Upshaw was entitled to
deferred imposition of sentence for possession of dangerous
drugs?
¶ 46 Upshaw argues that the District Court erred in
failing to consider the statutory presumption that she was
entitled to a deferred sentence on her conviction for the
drug possession charge, pursuant to § 45-9-102(6),
MCA (2003). Upshaw contends that the District Court’s
discussion of the option of deferred sentencing focused
exclusively on the violent nature of the offenses
enumerated by counts I and II, and the risk to the
community posed by a violent offender. Moreover, Upshaw
argues that the State presented no evidence to rebut the
presumption that she was entitled to a deferred sentencing
on count IV. Upshaw concedes that because the court ordered
her five-year prison term for drug possession to run
concurrently with the two twenty-year terms on counts I and
II, she will not be required to serve additional time in
prison as a result of the court’s failure to consider
deferred sentencing on count IV. However, she claims that
due to the court’s action, she is denied the opportunity to
clear the drug possession conviction from her criminal
record after a period of deferral.
¶ 47 The State argues that the court did consider
Upshaw’s request that it defer imposition of sentences on
all counts, and declined to grant the request because there
was violence was involved in the matter. The State contends
that the District Court treated the entire conviction on
three counts as instances of the problems that Upshaw
presented to the community, and there was no evidence that
Upshaw’s drug use was an isolated component of her other
criminal behavior, and the court was within its bounds on
sentencing.
¶ 48 Section 45-9-102(5), MCA (2003), sets the
maximum period of incarceration for the crime of possession
of a dangerous drug at five years. Section 45-9-102(6), MCA
(2003), further states: “[a] person convicted of a first
violation under this section is presumed to be entitled to
a deferred imposition of sentence of imprisonment.” The
District Court addressed defense counsel’s recommendation
for a deferred sentence in the following terms:
Deferred imposition of sentence in my general orientation
is reserved for those where there is no violence, and
generally it’s a victimless crime although on occasion
there have been victims, and I acknowledge that, but this
crime and the risk I think to the community are much
greater, and I’m concerned that the next violation might
be more severe and that damage to possible victims would
be greater if you remained in the community.
The District Court pronounced twenty-year sentences for the
offenses of assault with a weapon (count I) and aggravated
burglary (count II), and sentenced Upshaw to a five-year
commitment to the Women’s Prison for the offense of
possession of dangerous drugs (count IV).
¶ 49 In State v. Bolt, 204 Mont. 261, 664 P.2d 322
(1983), we determined that it is unnecessary to restrict
the evidence admissible for overcoming the presumption in
favor of deferred imposition of sentence only to evidence
relative to the crime charged — possession of a
dangerous drug. Rather, the presumption is to be weighed
against all other evidence relevant to sentencing. Bolt,
204 Mont. at 266, 664 P.2d at 324-25. Here, the District
Court judge found Upshaw to be a violent offender. The
court determined that Upshaw broke into a residence on June
12, 2003, and threatened Hiner with a knife. The court found
that Upshaw remained unlawfully at the residence with the
purpose to commit assault on Parmer, and that the arresting
officers found drugs on Upshaw’s person. Thus, any
presumption that Upshaw was entitled to a deferred
imposition of sentence was rebutted by the charges
themselves and the information at the sentencing hearing.
CONCLUSION
¶ 50 We conclude that the State did not improperly
elicit testimony regarding Upshaw’s post-Miranda silence,
Upshaw’s remaining ineffective assistance of counsel claims
are reserved for post-conviction relief, and the District
Court correctly considered and rejected the statutory
presumption of a deferred imposition of sentence for
Upshaw’s drug possession charge.
¶ 51 Affirmed.
Justice W. William Leaphart dissenting.
¶ 52 I dissent.
¶ 53 The prosecutor requested a narrative statement
from the State’s witness, Detective Baker, “Detective, tell
us what happened next.” In response to this open-ended
invitation, Detective Baker responded, “. . . I told her
that we were going to go down to the police department, and
I was going to give her a chance to talk to me and be
interviewed to provide her side of the story because
there’s always two sides. . . .” The prosecutor then asked
the detective to take the matter a step further by asking,
“So did you get a chance to speak with the defendant there
at the police station?” To which the detective replied that,
yes he did speak with her at the station where he advised
her of the Miranda warning before any questions were asked
of her and that “she invoked her right to have an attorney
before any questions so the interview was stopped.”
¶ 54 The question is, did this sworn testimony from
the detective violate the principles of the Doyle decision?
Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240 (1976). The
State argues that there was no violation of Doyle because
the testimony was the result of a “non-responsive answer”
and the prosecutor did not seek to capitalize on the
testimony to impeach Upshaw.
¶ 55 The State’s argument that the testimony arose
from a “non-responsive answer” is somewhat disingenuous
given that the prosecutor did not pose a “question” seeking
a “response.” Rather, he merely asked the detective to give
an open-ended narrative: “Tell us what happened next.” If
an attorney chooses to seek narrative answers, he or she
must have the witness adequately prepared so as to avoid
inadvertent discussion of legally forbidden topics. Whether
the detective’s testimony was elicited or volunteered, the
consequence to the defendant is the same: the jury is
informed that the defendant, although given the
opportunity, chose not to tell the officer “her side of the
story.” The purpose of the Doyle rule is not to punish the
prosecution but to honor and preserve the defendant’s
constitutional right to remain silent, irrespective of
whether the testimony was intentionally elicited or
inadvertently volunteered.
¶ 56 Similarly, the argument that the State did not
attempt to “use” the testimony against the defendant misses
the point. The question is not whether the State used the
testimony, but whether the jury “used” or relied on the
evidence in reaching its determination of guilt. We can
only assume that the jury considered all the evidence and
testimony before it regardless of whether the prosecutor
chose to emphasize the testimony or not.
¶ 57 Finally, as the Court points out, since defense
counsel did not object to the detective’s testimony at
trial, a question is presented as to whether the alleged
error should be reviewed under the common law plain error
rule. The Court’s opinion is puzzling in this regard in
that the Court concludes that there was no plain error.
With no objection and no plain error, the Court would
normally conclude that the Doyle issue is not properly
before us. The Court, despite the absence of plain error,
nonetheless engages in a Doyle analysis and concludes that:
“The brief mention of Upshaw’s choice to remain silent was
confined to a minor portion of the detective’s testimony.
The prosecutor did not pursue this issue, did not use the
testimony to impeach Upshaw and made no mention of it in
either his cross-examination of Upshaw or in his closing
argument. Unlike in Sullivan and Furlong, the prosecutor
here did not comment upon the fact that Upshaw had failed
earlier to volunteer her version of events to the police.”
¶ 26. Logic dictates that, unless there was plain
error, the Court would not have made these observations
which are only relevant to a Doyle analysis.
¶ 58 As indicated above, I would conclude that the
errors alleged by Upshaw implicated fundamental
constitutional rights and thus amounted to plain error.
State v. Sullivan, 280 Mont. 25, 32-33, 927 P.2d 1033,
1037-38 (1996). Upshaw, like Sullivan, alleges that the
testimony in question violated her right to due process and
her privilege against self-incrimination. In Sullivan we
found plain error and stated:
Because of the importance of these [fundamental] rights
and the effect that a denial of these rights would have on
the fairness of a trial, and notwithstanding defense
counsel’s failure to contemporaneously object or to claim
error pursuant to § 46-20-701(2), MCA, our failure
to review Sullivan’s claims would leave unsettled a
question as to the fundamental fairness of his trial.
Sullivan, 280 Mont. at 33, 927 P.2d at 1038.
¶ 59 Here, the detective’s testimony clearly created
an inference for the jury that by remaining silent after
having been given an opportunity to tell “her side of the
story,” Upshaw must be guilty of the alleged crime. Our
failure to find plain error leaves unsettled a question as
to the fundamental fairness of her trial.
¶ 60 Given the Doyle error, I would reverse Upshaw’s
conviction
Justice James C. Nelson concurs in the dissent of Justice
Leaphart.