State v. McDonald, 2013 MT 97 (April 10, 2013) (4-1) (Rice, J., for the majority; Cotter, J. dissenting)
Issue: Whether the prosecutor’s comments during closing argument constitute plain error.
Short Answer: No.
Facts: Rama Irene McDonald was an inmate at the Missoula County Detention Center, and became involved in a heated exchange with an officer over McDonald’s unwillingness to remove paper from the window of her cell that obstructed the view into the cell. McDonald bit the officer on the arm, and was charged with felony assault on a police officer. The first trial resulted in a mistrial when the jury was unable to reach a verdict. At the second trial, the officer testified she had been bitten by McDonald, and two other officers in the room testified that the third officer has yelled she was being bitten. A fourth officer testified to seeing a red mark and saliva on the officer’s arm. McDonald testified she did not bite the officer, and another inmate testified she did not see McDonald bite the officer.
Procedural Posture & Holding: During closing argument, the prosecutor made several comments about the credibility of the witnesses. Referring to the officer who was bitten, the prosecutor said, “She’s a completely believable witness.” During rebuttal, the prosecutor said: “It’s not even proper for you to consider, but I don’t believe the evidence shows that there was an overreaction here by officer Pavalone. I don’t believe their evidence shows there was excessive force used. I don’t believe that the evidence shows Ms. McDonald was injured, significantly. I don’t believe that the evidence shows that this was a fight picked by Paige Pavalone. . . [The officers are] coming in and telling you the truth.” McDonald’s counsel did not object to any of these statements. The jury returned a guilty verdict, and McDonald appeals. The Supreme Court affirms.
Justice Cotter’s Dissent: A prosecutor may not attest personally to the veracity of witnesses, or tell the jurors whom he personally believes to be telling the truth. This is what happened in Hayden, leading a unanimous Court to find plain error. The majority’s efforts to distinguish Hayden from this case are unavailing. The prosecutor’s comments were replete with his beliefs of who was telling the truth. The evidence against McDonald was anything but “overwhelming,” as in State v. Arlington, 265 Mont. 127 (1994). There was no direct evidence that the officer here was bitten; thus, the entire trial boiled down to whom the jury would believe. The prosecutor wrongly inserted himself into this critical determination. Justice Cotter would reverse and remand.