05/19/2020
DA 18-0346 Case Number: DA 18-0346
IN THE SUPREME COURT OF THE STATE OF MONTANA 2020 MT 128
STATE OF MONTANA,
Plaintiff and Appellee,
v.
STACY MICHAEL TRUJILLO,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. CDC 17-059 Honorable John A. Kutzman, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Michael Marchesini, Assistant Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana
Joshua A. Racki, Cascade County Attorney, Kory Larsen, Deputy County Attorney, Great Falls, Montana
Submitted on Briefs: April 15, 2020
Decided: May 19, 2020
Filed:
r--6ta•--df __________________________________________ Clerk Justice Dirk Sandefur delivered the Opinion of the Court.
¶1 Stacy Michael Trujillo appeals his judgment of conviction in the Montana Eighth
District Court, Cascade County, on the offenses of attempted deliberate homicide, a felony
in violation of §§ 45-4-103 and 45-5-102(1)(a), MCA, and evidence tampering, a felony in
violation of § 45-7-207(1)(a), MCA. The dispositive issues are:
1. Whether the District Court committed plain error in violation of § 45-3-110, MCA, by allowing the State’s closing argument that Trujillo’s failure to retreat or summon police prior to using deadly force was unreasonable?
2. Whether the District Court committed plain error in violation of Trujillo’s constitutional right to remain silent by allowing the State’s closing and rebuttal argument references to his post-Miranda silence?
3. Whether the State’s closing argument regarding an alternative factual basis for the evidence tampering charge effected an improper de facto amendment of the charging Information?
¶2 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On February 2, 2017, the State charged Trujillo with attempted deliberate homicide
after he repeatedly stabbed Omer Carbajal with a knife in the lobby of the Great Falls
Rescue Mission. The State also charged him with evidence tampering based on a witness
statement that Trujillo later threw something believed to be a knife over a fence into a
neighboring auto-repair yard.
¶4 A video surveillance camera clearly captured the stabbing incident. It showed
Trujillo calmly approach Carbajal from behind where he was sitting at a table talking with
another man, tap him on the shoulder, whisper in his ear, and then suddenly step back, 2 produce a knife, and repeatedly stab the unsuspecting Carbajal about the face and head. A
responding Great Falls police officer (Officer Torres) later arrested Trujillo on the street a
block away. After returning to the Mission to view the surveillance video and confirm that
he had the right man, the officer took Trujillo to the police station, advised him of his
Miranda rights, and requested that he submit to questioning. After initially signing a
Miranda waiver, Trujillo declined to speak further.
¶5 At trial, Trujillo acknowledged that he stabbed Carbajal but asserted that he acted
in self-defense. He testified and argued to the jury that he reasonably feared that Carbajal
would shoot him based on his uncorroborated testimony that Carbajal had minutes before
threatened to shoot him with a gun outside on the sidewalk.1 Contrary to witness testimony
that he threw what appeared to be the subject knife over a neighboring fence, Trujillo
testified that the knife he used was the knife that police later found on the sidewalk outside
the Mission.2 After a three-day trial, the jury found Trujillo guilty of both offenses. The
District Court later sentenced him to 60 years in prison without parole—50 years for
attempted deliberate homicide and 10 for evidence tampering. Trujillo timely appealed.
1 Trujillo did not assert at trial that he saw a gun or that Carbajal actually had a gun. Nor did the police find a gun at the scene. No witness testified to seeing a gun or that Carbajal in fact had one. 2 Police did not find a knife in the neighboring auto-repair yard. Based on witness testimony describing the subject knife and the fact that a knife tip was later recovered from Carbajal’s head wounds, the State asserted that the sidewalk knife did not match and was not the knife used to stab Carbajal.
3 STANDARDS OF REVIEW
¶6 Whether an unpreserved error warrants plain error review is a question of law
reviewed de novo. State v. Stratton, 2017 MT 112, ¶ 7, 387 Mont. 384, 394 P.3d 192. The
failure to preserve an assertion of error by contemporaneous objection generally waives
the right to subsequent appellate review. Section 46-20-104(2), MCA. See also
State v. Long, 2005 MT 130, ¶ 35, 327 Mont. 238, 113 P.3d 290 (we generally will not
review issues raised for the first time on appeal due to unfairness of faulting a lower court
for failure to correctly rule on an unraised issue). As a narrow exception to the waiver rule,
we may, in our discretion, review an unpreserved objection if it implicates a fundamental
constitutional right and plain error review is necessary to avoid a manifest miscarriage of
justice, leaving an unsettled question regarding the fundamental fairness of the proceeding,
or otherwise compromising the integrity of the judicial process. State v. Dahlin, 1998 MT
113, ¶ 14, 289 Mont. 182, 961 P.2d 1247; State v. Finley, 276 Mont. 126, 137-38, 915 P.2d
208, 215 (1996) (distinguishing common law plain error doctrine from limited statutory
plain error review), overruled on other grounds by State v. Gallagher, 2001 MT 39, ¶ 21,
304 Mont. 215, 19 P.3d 817. We thus exercise plain error review only under extraordinary
circumstances. State v. Mitchell, 2012 MT 227, ¶ 10, 366 Mont. 379, 286 P.3d 1196;
Finley, 276 Mont. at 138, 915 P.2d at 215. Mere assertion that an asserted error implicates
a constitutional right or that a manifest miscarriage of justice will result absent review is
insufficient—the appellant must affirmatively demonstrate the criteria for plain error
review. State v. Gunderson, 2010 MT 166, ¶ 100, 357 Mont. 142, 237 P.3d 74. Whether
4 an asserted error implicates a fundamental constitutional right is a question of law subject
to plenary review. State v. Charlie, 2010 MT 195, ¶ 21, 357 Mont. 355, 239 P.3d 934;
State v. Brander, 280 Mont. 148, 150-51, 930 P.2d 31, 33 (1996).
¶7 Whether a prosecutor’s closing argument comment effects a de facto substantive
amendment of a charging Information is a question of law reviewed de novo. See
State v. Bianca Wilson, 2007 MT 327, ¶¶ 21-32, 340 Mont. 191, 172 P.3d 1264.
DISCUSSION
¶8 1. Whether the District Court committed plain error in violation of § 45-3-110, MCA, by allowing the State’s closing argument that Trujillo’s failure to retreat or summon police prior to using deadly force was unreasonable?
¶9 Tracking a related line of cross-examination of Trujillo, the State essentially argued
during closing that his asserted self-defense theory was not credible because it was
unreasonable under the circumstances for him to stab Carbajal rather than leave, call the
police, or seek assistance from the attending front desk clerk at the Mission. Trujillo did
not contemporaneously object to this line of cross-examination or the State’s corresponding
closing argument. He now asserts, however, that the argument was plain error contrary to
§ 45-3-110, MCA, thereby “punishing him for invoking” his statutory right to self-defense
in violation of his federal and state constitutional rights to due process of law. We disagree.
¶10 As pertinent here, a “person is justified in the use of force likely to cause death or
serious bodily harm only if the person reasonably believes that the force is necessary” to
protect him or herself from “imminent death or serious bodily harm.”
Section 45-3-102, MCA. A person lawfully present “who is threatened with bodily injury
5 or loss of life has no duty to retreat . . . or summon law enforcement . . . prior to using
force.” Section 45-3-110, MCA. Under § 45-3-102, MCA, whether a person reasonably
believed that deadly force was necessary for self-protection under the circumstances is a
question of fact for jury determination.
¶11 Trujillo does not dispute that the District Court properly instructed the jury on the
pertinent law of self-defense. He further acknowledges that, in closing, the State
specifically acknowledged that he had no duty to flee or summon police prior to using force
in self-defense. The trial record clearly indicates that the State merely argued to the jury
that it was not reasonable as a matter of fact under the circumstances for Trujillo to
approach Carbajal from behind and stab him, rather than leave, summon the police, or seek
assistance from the attending Rescue Mission clerk. We hold that Trujillo has failed to
demonstrate that the District Court committed plain error in not intervening sua sponte to
limit or cure the State’s closing or rebuttal argument references to the reasonableness of
his conduct under the circumstances.
¶12 2. Whether the District Court committed plain error in violation of Trujillo’s constitutional right to remain silent by allowing the State’s closing and rebuttal argument references to his post-Miranda silence?
¶13 Though cherry-picked out of context on appeal, Trujillo correctly asserts that the
State’s closing and rebuttal arguments referenced the fact that he ultimately exercised his
right to remain silent at the police station after his arrest. As with his other assertion of
plain error, he did not contemporaneously object. Pursuant to Doyle v. Ohio, 426 U.S. 610,
618-19, 96 S. Ct. 2240, 2244-45 (1976), and conforming Montana authority, he now asserts
6 that the State’s reference to his post-Miranda silence was a plain error violation of his
federal and state constitutional right to remain silent. We disagree.
¶14 A criminally accused has the right to remain silent and require the State to
affirmatively prove his or her guilt. See U.S. Const. amend. V and XIV; Mont. Const.
art. II, § 25; § 46-16-204, MCA. As a procedural safeguard of this fundamental right, law
enforcement officers may not subject an accused to custodial interrogation absent an
advisory and knowing, voluntary, and intelligent waiver of the person’s constitutional
rights to remain silent and the assistance of counsel. State v. Morrisey, 2009 MT 201,
¶¶ 28-29, 351 Mont. 144, 214 P.3d 708; Miranda v. Arizona, 384 U.S. 436, 467-77, 86
S. Ct. 1602, 1624-30 (1966).
¶15 In turn, except where first introduced, elicited, or referenced by the accused as proof
of innocence,3 the State generally may not introduce, elicit, or otherwise reference the
post-Miranda silence of an accused as evidence of guilt or to impeach or rebut the
accused’s subsequent account of the charged events. State v. Wagner, 2009 MT 256,
¶¶ 16-21, 352 Mont. 1, 215 P.3d 20 (impermissible repeated case-in-chief testimony,
cross-examination of defendant, and closing argument references to post-Miranda silence
3 See, e.g., State v. White, 200 Mont. 123, 127-28, 650 P.2d 765, 767-68 (1982) (permissible cross-examination/closing argument reference to prior post-Miranda silence inconsistent with subsequent trial testimony triggered by defendant’s trial testimony referencing prior post-Miranda silence as evidence of innocence), overruled on other grounds by State v. Montoya, 1999 MT 180, 295 Mont. 288, 983 P.2d 937; State v. Sadowski, 247 Mont. 63, 78, 805 P.2d 537, 546 (1991) (permissible case-in-chief re-direct/closing argument reference to defendant’s post-Miranda silence where defendant did not testify at trial triggered by defense-elicited cross-examination testimony from state witness as to defendant’s post-Miranda silence as evidence of innocence), overruled on other grounds by State v. Ayers, 2003 MT 114, 315 Mont. 395, 68 P.3d 768.
7 not referenced by defendant as evidence of innocence); State v. Sullivan, 280 Mont. 25,
34-35, 927 P.2d 1033, 1038-39 (1996) (impermissible opening statement, case-in-chief
testimony, and closing argument reference to post-Miranda silence where defendant did
not testify at trial); Doyle, 426 U.S. at 618-19, 96 S. Ct. at 2244-45 (impermissible cross-
examination and closing argument reference to post-Miranda silence inconsistent with trial
testimony). As a narrow exception to the Doyle rule, the State may use or reference an
accused’s pre-Miranda silence to impeach or rebut his or her subsequent statements or trial
testimony. See State v. Clausell, 2001 MT 62, ¶¶ 57-61, 63, 305 Mont. 1, 22 P.3d 1111
(permissible opening statement, case-in-chief, cross-examination, and closing argument
references to inconsistencies between defendant’s trial testimony and prior pre-Miranda
silence/statements and post-Miranda statements); Sullivan, 280 Mont. at 33-34, 927 P.2d
at 1038 (permissible case-in-chief testimony/closing argument reference to post-arrest
pre-Miranda silence on way to station where defendant did not testify at trial); State v.
Graves, 272 Mont. 451, 460–61, 901 P.2d 549, 555 (1995) (permissible
cross-examination/closing argument reference to pre-Miranda silence inconsistent with
subsequent trial testimony), overruled on other grounds by State v. Herman, 2008 MT 187,
343 Mont. 494, 188 P.3d 978; State v. Wiman, 236 Mont. 180, 187, 769 P.2d 1200, 1204
(1989) (permissible cross-examination/closing argument reference to pre-Miranda silence
inconsistent with post-Miranda pretrial statement), abrogated on other grounds by
State v. Curtis, 241 Mont. 288, 299, 787 P.2d 306, 313 (1990); State v. Furlong, 213 Mont.
251, 258, 690 P.2d 986, 989 (1984) (distinguishing permissible cross-examination/closing
8 argument reference to pre-Miranda silence inconsistent with subsequent trial testimony
from impermissible reference to post-Miranda silence inconsistent with trial testimony);
State v. Donald Wilson, 193 Mont. 318, 631 P.2d 1273 (1981) (permissible
cross-examination/closing argument reference to pre-Miranda silence inconsistent with
subsequent trial testimony). While an alleged Doyle violation is an alleged violation of a
fundamental constitutional right, plain error review is not warranted unless the appellant
clearly demonstrates the alleged violation on the record. See State v. Lackman,
2017 MT 127, ¶ 25, 387 Mont. 459, 395 P.3d 477 (declining plain error review based on
defendant’s failure to clearly show impermissible references to post-Miranda silences
beyond permissible references to pre-Miranda silence); State v. Godfrey, 2004 MT 197,
¶¶ 31, 40, 322 Mont. 254, 95 P.3d 166 (inadvisable cross-examination/closing argument
references to post-rights advisory silence insufficient for plain error review—they were
more akin to comment on the credibility of accused’s account than a “clear comment on or
infringement of” his right to remain silent).4
¶16 Here, Trujillo voluntarily testified in detail at trial as to his account of the sequence
of the charged events. On cross-examination, the State challenged his account by asking
why, if he felt threatened by Carbajal as alleged, he didn’t just leave, avoid Carbajal, call
the police, or seek assistance from the attending front desk clerk. He answered, inter alia,
4 In Godfrey, on cross-examination of the defendant, the State asked “you had seven months to think up an explanation . . . [a]nd this is the first time that anyone has really heard this explanation[?]” Godfrey, ¶ 18. In pertinent part, the State then remarked in closing that “[h]e’s got an explanation”—“[h]e’s had plenty of time to think about it.” Godfrey, ¶ 19.
9 that it was too cold out to leave the shelter and that he thus “took it upon” himself to defend
himself. The State did not question him about his post-Miranda silence. He now bases his
alleged Doyle violation on two isolated portions of the State’s closing and rebuttal
arguments, neither of which he objected to, to wit:
Officer Torres told you the Defendant invoked his right to counsel that night. He didn’t say anything about defending himself. He didn’t say anything about a gun. That’s what Officer Torres told you.
. . .
If you defended yourself, would you get rid of the weapon you used to defend yourself? No. You keep that so you can show it to law enforcement and say, this is what I used, and I used it to defend myself. The first time he says that is on the stand yesterday.
¶17 In context, the record clearly reflects that the State was commenting on Trujillo’s
pre-Miranda silence after the stabbing, pre- and post-arrest, prior to arrival at the police
station. Tracking its cross-examination of Trujillo, the State recounted the trial evidence
and pointed out the extent to which his trial account was inconsistent with his
video-recorded conduct, eye-witness testimony of the incident, and his ultimate assertions
that he reasonably feared for his safety and thus reasonably used deadly force in self-
defense. In context, the record clearly manifests that the State did not suggest, invite, or
lay the groundwork for any negative jury inference from Trujillo’s post-Miranda silence.
¶18 Even if viewed in isolation out of context of the rest of the State’s closing and
rebuttal arguments, the fact remains that it was Trujillo, not the State, who first commented
on his post-Miranda silence to the jury in his opening statement:
10 The police show up [after the stabbing]. They pull him to the side. He cooperates, and they take him to the police station. He cooperates with them. He signed a little piece of paper, waiving his rights so that he could talk to him [sic], and exercise his constitutional rights . . . . But then he decided it would be best he should talk to a lawyer, and he did not say any more to the police.
Trujillo, not the State, affirmatively elicited similar cross-examination testimony from the
involved police officer, again pointing out to the jury that, after initially signing a Miranda
waiver, he retracted it and chose not to make any further statement. Moreover, it was
Trujillo, not the State, who then first asserted during closing argument that he fully
cooperated with the police until he later exercised his right to remain silent at the station.
Finally, it was Trujillo, not the State, who first commented to the jury at closing that the
“first time” he told his story was at trial. Under these circumstances, we hold that Trujillo
has not shown that the District Court committed plain error by not intervening sua sponte
to limit or cure the State’s reference to his pre- or post-Miranda silence. See, e.g., Clausell,
¶¶ 57-63 (permissible reference to pre-Miranda silence to impeach inconsistent defendant
statements); White, 200 Mont. at 127-28, 650 P.2d at 767-68 (permissible reference to
post-Miranda silence when first elicited or referenced by defendant in support of
innocence).
¶19 3. Whether the State’s closing argument regarding an alternative factual basis for the evidence tampering charge effected an improper de facto amendment of the charging Information?
¶20 Trujillo finally asserts that the District Court erroneously allowed the State to
untimely amend the substance of the evidence tampering charge by allowing it to argue,
over objection, that it did not matter whether the jury found that he threw the subject knife 11 over a fence, as asserted by the State, or merely dropped it on the sidewalk while walking
away from the scene, as he asserted. The State may not amend the substance of an
Information except upon leave of court on timely pretrial motion “accompanied by an
affidavit stating facts” showing the probable cause for the amended charge.
Section 46-11-205(1), MCA. The purpose of this procedural requirement is to provide
reasonable notice to the defendant of the charge and its substantive factual basis, thereby
affording a reasonable opportunity to “prepare and present [a] defense.”
State v. Hardground, 2019 MT 14, ¶ 9, 394 Mont. 104, 433 P.3d 711. An amendment is
substantive if it alters the essential elements of the offense, the required proof, or available
defenses, thus prejudicing the defendant’s substantial rights. Hardground, ¶¶ 10-13.
¶21 Here, the State did not seek amendment of the tampering charge. No amendment
of the charge occurred. Trujillo has further failed to demonstrate that the State’s argument,
made in response to his trial assertion, materially prejudiced his right to reasonable notice
of the elements of the tampering charge or its required proof. As charged, the material
essence of the tampering charge was his act of concealing or removing the subject knife
“with purpose to impair its verity or availability” as incriminating evidence.
See § 45-7-207(1)(a), MCA. Regardless of variance in the State’s responsive alternative
trial argument regarding the manner by which Trujillo removed or concealed it, the
Information fairly apprised him of the State’s intent to prove and convict him for
concealing or removing the subject knife from the scene to impair any subsequent
investigation. See Bianca Wilson, ¶¶ 30-32 (holding that state reliance at trial on previously
12 unreferenced murder weapon as evidence tampering predicate not an improper de facto
substantive amendment of the charge—charge predicated on concealment or removal of
described vehicle and its contents encompassed any unnamed evidence that may have been
present therein).
¶22 Trujillo admitted that he removed and disposed of the subject knife from the scene.5
Moreover, the State did not abandon its originally asserted tampering theory (i.e., that he
removed and disposed of the knife by throwing it over a neighboring fence). It simply
asserted that he still removed or concealed the knife as charged even if the jury believed
his assertion that he instead dropped it on the sidewalk outside. We hold that the State’s
alternative factual argument regarding the evidence tampering charge did not effect a de
facto amendment of the substance of the charging Information.6
CONCLUSION
¶23 In sum, we hold that Trujillo has failed to demonstrate that the District Court
committed plain error by allowing the State to argue that it was not reasonable under the
circumstances for him to use deadly force in lieu of alternative courses of action available
under the circumstances. We hold that he has similarly failed to demonstrate that the
District Court committed plain error by allowing the State’s closing and rebuttal argument
5 He testified that “I either dropped—threw it right there or dropped it when I walked off . . . I do not recall if I dropped it out of my hand or I threw it on the sidewalk.” 6 We emphasize that our analysis and holding is limited to the narrow issue presented without comment on the sufficiency of the evidence on the elements of the tampering charge.
13 references to his pre- or post-Miranda silence under the circumstances in this case. We
finally hold that the State’s alternative factual argument regarding the evidence tampering
charge did not effect a de facto amendment of the substance of the charging Information.
¶24 Affirmed.
/S/ DIRK M. SANDEFUR
We concur:
/S/ LAURIE McKINNON /S/ BETH BAKER /S/ INGRID GUSTAFSON /S/ JIM RICE