07/11/2023
DA 21-0466 Case Number: DA 21-0466
IN THE SUPREME COURT OF THE STATE OF MONTANA 2023 MT 131
STATE OF MONTANA,
Plaintiff and Appellee,
v.
RYAN HUNTER ZITNIK,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDC 20-308 Honorable Mike McMahon, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Jeff N. Wilson, Assistant Appellate Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana
Kevin Downs, Lewis and Clark County Attorney, Fallon Stanton, Deputy County Attorney, Helena, Montana
Submitted on Briefs: May 24, 2023
Decided: July 11, 2023
Filed:
__________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Ryan Hunter Zitnik (Zitnik) appeals his convictions and sentence entered in the First
Judicial District Court, Lewis and Clark County, for negligent vehicular assault,
§ 45-5-205, MCA; resisting arrest, § 45-7-301, MCA; and disorderly conduct,
§ 45-8-101(1)(a)(iii), MCA. Zitnik argues the District Court erred when it communicated
with the jury during deliberations while neither counselor nor Zitnik were present. Zitnik
maintains he was denied his right to be present at critical stages of his trial and his right to
a public trial.1
¶2 We reverse and restate the issue on appeal:
Did the District Court commit reversible error by responding to the jury’s questions about the definition and timing of “arrest” without first consulting the defendant and counsel on the record?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On January 12, 2020, around midnight, Tara Yancy (Yancy) heard a loud bang in a
field near her home on the west side of Helena. She saw that a vehicle had crashed and
went out to see if anyone needed help. Yancy found an unconscious male in the driver seat
with blood on his forehead and a female on the passenger side of the floorboard slumped
over and bleeding. Yancy shook the man and asked his name. He identified himself as
Ryan Zitnik and complained of pain along his sternum. Yancy called emergency services.
Officer Domingo Leveque-Zapata responded to the accident and observed Zitnik had facial
1 We decline to address Zitnik’s argument regarding his right to a public trial because the violation of his right to be present at critical stages of his trial is dispositive. 2 injuries. He also noticed Zitnik’s breath had a strong odor of alcohol and that his eyes were
bloodshot and watery. When questioned by the officers, Zitnik responded it was none of
the officers’ business to know how much Zitnik had to drink. Rather, Zitnik was focused
on the passenger’s well-being. Officer Jay Lopez arrived and transported Zitnik to the
hospital. During transport, he informed Zitnik he was under arrest for driving under the
influence of alcohol (DUI). Meanwhile, an ambulance transported the passenger, Rachel
Combs (Combs), to the hospital.
¶4 While at the hospital, the officers continued their investigation of Zitnik for DUI.
Officer Lopez read Zitnik two alcohol screening test advisories. Zitnik refused to provide
a blood sample. Officer Lopez told Zitnik again he was under arrest for DUI but did not
handcuff Zitnik so that medical staff could continue to provide Zitnik with care. Instead,
Officer Zapata monitored Zitnik while standing outside his hospital room, situated between
Zitnik’s room and the emergency room (ER) where Combs was being treated. Officer
Lopez, in turn, sought a search warrant for Zitnik’s blood sample.
¶5 A nurse tending to Zitnik’s injuries noted his anxiety and concern for Combs’s
well-being. Zitnik repeatedly inquired if he could see Combs to check on her. Zitnik heard
Combs crying in pain from the other side of the nurses’ station. He ran out of his room
towards her room. Officer Zapata followed Zitnik, calling out his name, and tackled Zitnik
to the ground telling him to “get down.” Officer Zapata told him “[y]ou’re not gonna
interfere with what [the hospital staff is] doing.” A hospital staffer held down Zitnik while
Officer Zapata placed Zitnik’s arms behind his back and handcuffed his wrists. Zitnik
3 cried, “Stop. Please. I didn’t do anything. I’m just trying to see [Combs].” Officer Zapata
restrained Zitnik to keep him from interfering with Combs’s medical care. Hospital staff
and Officer Zapata dragged Zitnik back to his hospital room while Zitnik continued to fight
and yell expletives, prompting hospital staff to chemically “subdue” Zitnik. Once subdued,
Officer Lopez removed Zitnik’s handcuffs so he could receive medical care.
¶6 Dr. Kelly Dewey treated both Zitnik and Combs in the ER. Dr. Dewey noted both
were agitated and resistant to hospital staff. Zitnik’s blood alcohol concentration (BAC)
when he was admitted to the hospital was 0.271.2 Dr. Dewey believed Zitnik had received
“a good hit to the nose” during the accident. He considered Combs’s aggressive and
irrational behavior might be related to her head trauma since agitated behavior can be
caused by bleeding and pressure in the head. Combs suffered injuries to her face and
mouth, including a broken nose, a broken facial bone, and a lost tooth.
¶7 At the conclusion of the evidence, the jury was instructed on the offense of resisting
arrest and the relevant required mental state:
A person commits the offense of resisting arrest if the person knowingly prevents or attempts to prevent a peace officer from effecting an arrest by using or threatening to use physical force or violence against the peace officer or another, or using any other means that creates a risk of causing physical injury to the peace officer or another.
To convict the Defendant of the offense of resisting arrest, the State must prove the following elements:
1. That the Defendant prevented or attempted to prevent a peace officer from effecting an arrest;
2 A blood sample taken pursuant to a search warrant the following morning showed Zitnik’s BAC as 0.195. 4 2. By using or threatening to use physical force or violence against the peace officer or another, or using any other means that creates a risk of causing physical injury to the peace officer or another; AND
3. That the Defendant acted knowingly. If you find from your consideration of the evidence that all of these elements have been proved beyond a reasonable doubt, then you should find the Defendant guilty.
If, on the other hand, you find from your consideration of the evidence that any of these elements has not been proved beyond a reasonable doubt then you should find the Defendant not guilty.
For purposes of Count II—Resisting Arrest and Count III— Disorderly Conduct, a person acts knowingly when the person is aware of his or her conduct.
Further, the court instructed the jury, “you must apply the evidence presented in the case
in order to reach a verdict [and that] [t]hese instructions are intended to cover all necessary
laws which are pertinent to the case.”
¶8 In closing, the State argued Zitnik “attempt[ed] to avoid arrest or restraint” by
bracing his legs and refusing to go back to his hospital room. Zitnik, in turn, argued his
conduct at the hospital was not criminal but arose out of concern for Combs. During
deliberations, the jury sent two written questions to the court: “What is the definition of
arrest? At what point was the defendant ‘under arrest’ originally?” The District Court
responded to the jury’s questions in writing: “All of the relevant law is set forth in the
instruction[s]. You will need to apply [the] instructions as given to you.” No record was
made of this exchange between the court and deliberating jury, except the written question
and the court’s written response subsequently placed by the clerk of court in the court file.
5 The record does not reflect any consultation with counsel and the defendant, and the record
does not establish that counsel and Zitnik were present when the jury submitted their
questions and the court responded. The jury returned its verdict finding Zitnik guilty of all
three counts.
¶9 Two days after the trial concluded, the clerk of court docketed a piece of paper with
the handwritten note from the jury containing the two questions and the District Court’s
written response advising the jury to apply the instructions as given. The District Court
imposed a sentence of five years, with three years suspended, and a fine of $2,500 for the
negligent vehicular assault; a six month suspended concurrent term for resisting arrest; and
a $75 fine for disorderly conduct. The alleged presence violation pertains to a
communication involving only the charge of resisting arrest and does not involve Zitnik’s
convictions for negligent vehicular assault or disorderly conduct. Zitnik appeals.
STANDARD OF REVIEW
¶10 Whether a criminal defendant’s constitutional rights were violated, including a
criminal defendant’s right to be present at critical stages of trial, is a question of
constitutional law over which this Court exercises plenary review. State v. Sinz, 2021 MT
163, ¶ 20, 404 Mont. 498, 490 P.3d 97; Becker v. State, 2010 MT 93, ¶ 8, 356 Mont. 161,
232 P.3d 376.
¶11 This Court can exercise plain error review when a defendant failed to object to his
right to be present at the district court. State v. Robertson, 2014 MT 279, ¶ 39, 376 Mont.
471, 336 P.3d 367. We invoke the plain error doctrine on a case-by-case basis and only
6 when an appellant convinces us that failing to review the 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. Reim,
2014 MT 108, ¶ 38, 374 Mont. 487, 323 P.3d 880.
DISCUSSION
¶12 Before addressing the substance of the issue raised, we must determine our standard
of review. Zitnik did not make an objection to the court’s handling of the jury’s questions
because neither he, his counsel, or the State were aware that the jury, while deliberating,
presented two questions to the court which the court answered without consulting the
parties. The general rule is that an objection concerning a constitutional matter must be
raised before the trial court, and if the objection is not made, it will not be reviewed on
appeal. Reim, ¶ 38. This Court’s common law power of plain error review is an exception
to that rule. To exercise plain error review, the defendant must show (1) that the claimed
error implicates a fundamental right and (2) firmly convince this Court that failure to
review the error would result in a manifest miscarriage of justice, leave unsettled the
question of the fundamental fairness of the trial or proceedings, or compromise the integrity
of the judicial process. Reim, ¶ 38.
¶13 We have, on occasion, reached the merits of an alleged presence violation without
applying a strict plain error analysis. See State v. Tapson, 2001 MT 292, ¶ 14, 307 Mont.
428, 41 P.3d 305 (review was appropriate where Tapson’s counsel professed to waive
Tapson’s right to be present but there was nothing in the record indicating Tapson himself
7 knew of his right to be present or waived that right); State v. Bird, 2002 MT 2, ¶¶ 37-38,
308 Mont. 75, 43 P.3d 266 (we rejected an argument that a defendant had waived his
presence claim during voir dire because the record did not establish that he was ever
informed of his right to be present and that he waived that right); State v. Kennedy, 2004
MT 53, ¶¶ 28-30, 320 Mont. 161, 85 P.3d 1279 (review was appropriate where the
defendant was never informed of his right to be present during an in-chamber conversation
the court had with a juror); State v. Wilson, 2013 MT 70, ¶ 12, 369 Mont. 282, 297 P.3d
1208 (this Court did not consider whether Wilson had preserved his presence claim).
Nonetheless, our decision to reach the merits of an alleged presence violation on occasion
should not be considered as excepting all presence violations from the requirement that
they first be raised at trial. Here, however, the standards for exercising plain error review
are easily satisfied. First, Zitnik’s fundamental right to be present was implicated when a
substantive question of law was communicated between the court and deliberating jury in
his absence. Second, the lack of any record indicating the court consulted with the parties
and Zitnik prior to responding to the jury’s questions convinces us that failure to review
the alleged presence violation would leave unsettled the question of the fundamental
fairness of the proceedings, compromise the integrity of the judicial process, and result in
a manifest miscarriage of justice. Accordingly, we will exercise plain error review to
consider Zitnik’s alleged presence violation.
¶14 The Sixth Amendment to the United States Constitution guarantees a criminal
defendant the right to be present at all critical stages of the proceedings against him. U.S.
8 Const. amend. VI; Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 1058 (1970). The
Due Process Clause of the Fourteenth Amendment also protects a defendant’s right to be
present. United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 1484 (1985); State
v. Matt, 2008 MT 444, ¶ 16, 347 Mont. 530, 199 P.3d 244 (overruled on other grounds by
State v. Charlie, 2010 MT 195, 357 Mont. 355, 239 P.3d 934). “A defendant has a due
process right to be present in his own person whenever his presence has a relation,
reasonably substantial, to the fullness of his opportunity to defend against the charge.”
Matt, ¶ 14 (quoting Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 2667 (1987)).
By being physically present, a defendant can hear and see the proceedings and can
participate in the presentation and preservation of his rights. Matt, ¶ 16. The right to be
present during all proceedings serves to safeguard the public interest in a fair and orderly
judicial system. Tapson, ¶ 14.
¶15 To determine whether the right to be present has been violated, we analyze: (1)
whether the alleged violation occurred at a “critical stage” of the proceedings; (2) whether
the defendant had validly waived the right to be present; and (3) whether any violation of
the right to be present was harmless error. Reim, ¶ 36 (citing Matt, ¶ 18; Wilson, ¶ 12).
¶16 First, we address whether Zitnik’s alleged violation of his right to be present
occurred at a “critical stage” of the proceedings. A critical stage is “any step of the
proceeding where there is a potential for substantial prejudice to the defendant.” Ranta v.
State, 1998 MT 95, ¶ 17, 288 Mont. 391, 958 P.2d 670. The State, relying on Sinz, argues
we need not definitively determine if an event constituted a critical stage when the
9 defendant was not prejudiced by his absence from that event. The State maintains that the
court’s interaction with the jury was memorialized in the note and that Zitnik was not
prejudiced because the jury was merely instructed to follow the instructions previously
given. However, the questions indicate the jury was considering when Zitnik was first
placed under arrest and what constituted an arrest—both of which were integral to the
particular facts of the case, the elements of the resisting arrest charge, and to Zitnik’s
defense. Had Zitnik known of the jury’s questions he may have advocated for a different
response from the court. We therefore must consider the potential for prejudice arising
from the absence of both counsel and Zitnik during a point at trial where the jury made a
substantive inquiry about the law pertaining to the charge of resisting arrest in the context
of the facts of this case. Accordingly, we reject the State’s argument that, because Zitnik
was not substantially prejudiced, it is unnecessary to determine whether the event
constituted a critical stage of the proceedings.
¶17 Pursuant to § 46-16-503(2), MCA, Zitnik has both a constitutional and statutory
right to be present when the District Court communicated with the jury. Montana has
codified the way courts address inquiries from a deliberating jury:
After the jury has retired for deliberation, if there is any disagreement among the jurors as to the testimony or if the jurors desire to be informed on any point of law arising in the cause, they shall notify the officer appointed to keep them together, who shall then notify the court. The information requested may be given, in the discretion of the court, after consultation with the parties.
10 Section 46-16-503(2), MCA, (2019) (emphasis added). Based on the plain and
unambiguous language of the statute, the court was statutorily required to first consult with
Zitnik before responding to the jury’s questions.
¶18 Our precedent explains the principles underlying § 46-16-503(2), MCA. In Tapson,
the judge brought substitute verdict forms into the jury room at the suggestion of the State
and without opposition from defense counsel. Tapson, ¶ 11. Neither counsel nor the
defendant were present. Tapson, ¶ 11. The judge returned to the courtroom eleven minutes
later and never made a record of the meeting. Tapson, ¶ 11. On appeal, we held the judge’s
intrusion into the jury room implicated the fundamental right to personally appear at all
criminal proceedings. Tapson, ¶ 27. We determined it was reversible error for the judge
to have entered the jury room while the jury was present, without the presence of the
defendant or counsel, and without an on-the-record waiver by the defendant of his rights
to be present at a critical stage of the trial. Tapson, ¶ 39. “No communication, whatever,
should take place between the judge and the jury after the cause has been submitted to
them, unless in open court with all the parties and their attorneys present.” Tapson, ¶ 17
(citation omitted).
¶19 In Matt, the trial judge, prosecutor, and defense counsel met in chambers to discuss
evidentiary issues. Matt, ¶ 6. Defense counsel indicated to the judge that she did not mind
if the defendant was absent during the meeting because the defendant would not understand
the proceedings. Matt, ¶ 6. On review following the defendant’s conviction, we held that
the in-chambers conference was a critical stage of the trial because the judge considered
11 and ruled upon evidentiary issues raised by the defense, which implicated the defendant’s
rights, and the defendant did not waive his right to be present. Matt, ¶ 16. We stated, “[a]
defendant has a due process right to be present in his own person whenever his presence
has a relation, reasonably substantial, to the fullness of his opportunity to defend against
the charge.” Matt, ¶ 16 (quoting Stincer, 482 U.S. at 745, 107 S. Ct. at 2667).
¶20 In Charlie, defense counsel and the State conferred with the trial judge by telephone
without Charlie (who was incarcerated at the time and not immediately available) and
discussed a newly discovered videotape in relation to his upcoming trial. Charlie, ¶ 7. A
week later, the judge informed Charlie what had transpired at the telephonic conference
and the reason for delaying his trial to enhance the video. Charlie, ¶ 7. On appeal, Charlie
argued he was entitled to be present at the telephonic conference and that his exclusion
from the conference so contaminated the framework of the trial that he was denied his right
to a fundamentally fair trial. This Court explained, “the question presented is whether there
is a ‘reasonable possibility’ that Charlie’s absence from the telephonic conference caused
him prejudice.” Charlie, ¶ 41. We held, because the parties present at the telephonic
conference discussed the impact of newly discovered evidence, Charlie’s presence at that
conference “had a reasonably substantial relation to his right to defend against the charges”
and concluded this “was a critical stage of the criminal proceedings against him.” Charlie,
¶ 41.
¶21 In State v. Northcutt, 2015 MT 267, 381 Mont. 81, 358 P.3d 179, the presiding judge
approached the jury room and inquired whether the jury would reach a verdict that night.
12 Northcutt, ¶ 3. Neither Northcutt, his counsel, the court reporter, nor prosecutor were
present when the court made this communication to the jury. Northcutt, ¶ 3. Relying on
Tapson and Matt, we concluded “[a] communication between a judge and a deliberating
jury . . . holds the potential to substantially prejudice a defendant,” thereby constituting a
critical stage of the proceedings. Northcutt, ¶¶ 16-17. “Introducing an interaction with the
judge into [] sensitive stage[s] of the proceedings is pregnant with possibilities for error.”
Northcutt, ¶ 16 (citing Tapson, ¶ 18) (quoting United States v. U.S. Gypsum Co., 438 U.S.
422, 460, 98 S. Ct. 2864, 2885). Moreover, we reasoned, “a defendant’s right to be present
may keep judges from engaging in such highly discouraged interactions in the first place,
safeguarding the public’s interest in a fair and orderly judicial system.” Northcutt, ¶ 16
(quoting Matt, ¶ 16) (internal quotations omitted). Since Northcutt was not present or
aware of the communication between the trial judge and jury that occurred during a critical
stage of the trial, we held his right to presence was violated. Northcutt, ¶ 17.
¶22 Our precedent is consistent with federal precedent requiring a defendant’s presence
when a jury retires for deliberation and presents questions to the court. As early as 1919,
the United States Supreme Court recognized, “[w]here a jury has retired to consider its
verdict, and supplementary instructions are required, either because asked for by the jury
or for other reasons, they ought to be given either in the presence of counsel or after notice
and an opportunity to be present; and written instructions ought not to be sent to the jury
without notice to counsel and an opportunity to object.” Fillippon v. Albion Vein Slate Co.,
250 U.S. 76, 80–81, 39 S. Ct. 435, 436 (1919). Notifying the parties after the court
13 provided supplementary instructions is wrong as a matter of law. Fillippon, 250 U.S. at
82, 39 S. Ct. at 437. The orderly conduct of a jury trial requires parties to attend all
proceedings from the time the jury is impaneled until it is discharged after rendering a
verdict, so that the right to be heard is protected. Fillippon, 250 U.S. at 81, 39 S. Ct. at
436.
¶23 In Rogers v. United States, 422 U.S. 35, 95 S. Ct. 2091 (1975), the deliberating jury
sent a note to the court asking whether it could accept a guilty verdict that also
recommended extreme mercy. Rogers, 422 U.S. at 38, 95 S. Ct. at 2094. Without notifying
the defendant, the court responded by written message. Rogers, 422 U.S. at 36, 95 S. Ct.
at 2093. As here, the defendant’s counsel did not know about the communication until
after the Supreme Court granted certiorari. Rogers, 422 U.S. at 41, 95 S. Ct. at 2095. The
Court concluded the jury’s communication was “tantamount to a request for further
instructions” and ruled that the communication made in the defendant’s absence violated a
defendant’s right to be present at every critical stage of the trial. Rogers, 422 U.S. at 39,
41, 95 S. Ct. at 2094-95. The Court explained “the jury’s message should have been
answered in open court and [] petitioner’s counsel should have been given an opportunity
to be heard before the trial judge responded.” Rogers, 422 U.S. at 39, 95 S. Ct. at 2094.
¶24 Finally, in Gypsum, which has been previously relied upon by this Court (Northcutt,
¶16; Tapson, ¶¶ 18-20) counsel agreed to allow the judge to privately discuss with the jury
whether lengthy deliberations had impacted jurors’ physical condition. Gypsum, 438 U.S.
at 431-32, 98 S. Ct. at 2870 (1978). The agreement included assurances that no instructions
14 on the law would be delivered unless the parties were present in open court. Gypsum, 438
U.S. at 431-32, 98 S. Ct. at 2870. Nonetheless, the judge and foreman’s discussions
extended beyond the physical condition of the jurors. Gypsum, 438 U.S. at 432-33, 98 S.
Ct. at 2871. The court summarized the conversation for the parties on the record. Gypsum,
438 U.S. at 432, 98 S. Ct. at 2871. Defense counsel requested to see a transcript of the
exchange and asked for a mistrial. Gypsum, 438 U.S. at 433, 98 S. Ct. at 2872. The court
denied both requests and the jury subsequently returned a guilty verdict. Gypsum, 438 U.S.
at 433, 98 S. Ct. at 2871. The Court found the meeting between the judge and foreman to
be “pregnant with possibilities for error” which warranted reversal because it was
impossible to gauge how the meeting impacted the jury’s verdict. Gypsum, 438 U.S. at
460-62, 98 S. Ct. at 2885-86.
¶25 We conclude Zitnik’s absence when the court addressed the jury’s questions
occurred at a critical stage of his trial because there was “a potential for substantial
prejudice.” Matt, ¶ 17. The jury sought the legal definition of “arrest” and wanted to know
when Zitnik was initially “under arrest.” Had Zitnik been present, he could have provided
an alternative definition than what the court gave, such as the statutory definition of “arrest”
or other language for “arrest” derived from case law on which the jury had not previously
been instructed. See § 46-1-202(3) (“arrest” means taking a person into custody in the
manner authorized by law); State v. Ellington, 2006 MT 219, ¶¶ 12, 14, 333 Mont. 411,
143 P.3d 119 (arrest involves: “(1) the authority to arrest, (2) the assertion of that authority
to effect an arrest, and (3) the restraint of the person arrested”); State v. Van Dort, 2003
15 MT 104, ¶ 14, 315 Mont. 303, 68 P.3d 728 (“arrest has been accorded a broad definition,
which applies if ‘a reasonable person, innocent of any crime, would have felt free to walk
away under the circumstances’”). Therefore, the District Court erred when it did not give
Zitnik an opportunity—because Zitnik was not even aware of the jury’s question—to argue
that a response more tailored to the facts should be given; from objecting to the response
that was given and making a record; from proposing an argument in support of a different
response; or from making further motions at a critical stage of the proceedings against him.
These were not questions about what was for dinner; rather, they were substantive
questions about the law pertaining to the particular facts of this case. Since Zitnik had no
opportunity to address the jury’s substantive questions about the definition of “arrest” and
when it occurred, the error is reversible unless Zitnik waived his right to be present or the
error was harmless.
¶26 We therefore turn to the second consideration of an alleged presence violation:
whether Zitnik waived his right to be present. Waiver is defined as the voluntary
abandonment of a known right. Tapson, ¶ 24. The fundamental right to appear and defend
may only be waived by failing to appear at trial, or through an informed, intelligent, and
recorded waiver. State v. Mann, 2006 MT 160, ¶ 12, 332 Mont. 476, 139 P.3d 159. Any
waiver of one’s constitutional rights must be made specifically, voluntarily, and
knowingly. Bird, ¶ 35. We will not presume a defendant has waived fundamental rights.
Bird, ¶ 35. Only the defendant retains the ability to waive their right to be present. Matt,
¶ 26. If a defendant chooses to waive his right to be present at a critical stage of the trial,
16 the court must obtain an on-the-record personal waiver by the defendant acknowledging
the defendant voluntarily, intelligently, and knowingly waives that right. Bird, ¶ 38.
¶27 Here, Zitnik was unaware the jury had questions and did not know he had the right
to be consulted prior to the court responding. Zitnik first learned about the jury’s questions
following his conviction when his appeal was being prepared. Based on this record, or
lack thereof, it is clear Zitnik never waived his right to be present.
¶28 Finally, we consider whether the prejudice against Zitnik resulted in harmless error.
We have previously held that the absence of a defendant and counsel when a deliberating
jury makes an inquiry of the court does not constitute structural error but should be
considered under the harmless error analysis. Charlie, ¶ 41. Under harmless error analysis,
“it shall be incumbent on the State to demonstrate that there is no reasonable possibility
that the violation prejudiced the defendant; in other words, the State will carry the burden
of persuading the Court, based upon the record before us and given the interests the right
of presence was designed to protect, that the violation was harmless.” Charlie, ¶ 45
(emphasis in original).
¶29 The State argues we should rely on Sinz where we concluded that because there was
a record of the court’s interaction with the jury, as both the jury’s inquiry and the court’s
response were in writing, we were able to “determine whether Sinz was prejudiced” by the
trial court’s actions. Sinz, ¶ 40. The State argues that because the District Court
communicated with the jury through written notes contained in the record, there is no
reasonable possibility that the District Court’s actions prejudiced Zitnik. However, while
17 we may know the jury’s questions and the court’s response, this ignores the substantial
prejudice that inured from Zitnik’s absence. Had Zitnik been present, he could have
proposed an instruction on the statutory definition of arrest, § 46-1-202(3), MCA, or a
definition contained in our precedent (see Ellington, ¶¶ 12, 14, Van Dort, ¶ 14); or
proposed a response more tailored to the jury’s substantive question about the law and facts
of these proceedings. He was foreclosed from objecting to the response that was given and
making a record, and from proposing an argument in support of a different response; and
he was foreclosed from making any further motions he deemed appropriate at a critical
stage of the proceedings against him. Thus, the facts in Sinz do not inform our inquiry
here.
¶30 The State also relies on State v.Godfrey, 2009 MT 60, 349 Mont. 335, 203 P.3d 834.
In Godfrey, the court met with the parties six times to answer ten jury questions and
answered one of the questions without consulting the parties. Godfrey, ¶ 27. We noted,
concluding that Godfrey was not prejudiced, the court’s actions had “no bearing upon the
evidence” and were “consistent with the court’s original charge to the jury.” Godfrey, ¶¶
35-36. The State contends we should apply the same reasoning because the District Court’s
written response directed the jury to apply the instructions as already given and did not
give any incorrect statements of law. We decline the State’s invitation. Here, while the
District Court’s response directed the jury to the instructions originally given, it did not
meaningfully address the jury’s legitimate and substantive questions of law relating to the
facts of this case. Zitnik had to be under “arrest” to be convicted of resisting arrest. Zitnik
18 and the parties should have been allowed to consult with the court, make recommendations
and requests, and make a record of their objections. It may have been that ultimately the
court would have delivered the same response, but the right of presence contemplates a
defendant has the opportunity to be involved in his defense. To foreclose meaningful
mechanisms imbedded in established procedures of trial designed to ensure the trial’s
fairness, which are protected and enhanced through advocacy, was error. We conclude the
error was not harmless.
CONCLUSION
¶31 When the District Court responded to the questions from the deliberating jury
outside Zitnik’s presence, it was during a critical stage of the proceedings and constituted
reversible error. Zitnik did not waive his right to be present and the District Court’s error
was not harmless because the quality of the questions involved substantive areas of the law
that could impact the jury’s decision to convict. Zitnik had no opportunity to object,
propose alternative responses, or otherwise make a record for appeal. Accordingly, the
¶32 As the communication was confined to Zitnik’s charge of resisting arrest, the
reversible error relates only to his conviction for that offense. Accordingly, Zitnik’s
conviction for resisting arrest is reversed.
/S/ LAURIE McKINNON
19 We Concur:
/S/ MIKE McGRATH /S/ BETH BAKER /S/ INGRID GUSTAFSON /S/ DIRK M. SANDEFUR