State v. Upshaw

2006 MT 341, 153 P.3d 579, 335 Mont. 162, 2006 Mont. LEXIS 671
CourtMontana Supreme Court
DecidedDecember 21, 2006
Docket04-717
StatusPublished
Cited by26 cases

This text of 2006 MT 341 (State v. Upshaw) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Upshaw, 2006 MT 341, 153 P.3d 579, 335 Mont. 162, 2006 Mont. LEXIS 671 (Mo. 2006).

Opinions

JUSTICE 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 [164]*164the 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 [165]*165(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.

[166]*166DISCUSSION 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:

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Bluebook (online)
2006 MT 341, 153 P.3d 579, 335 Mont. 162, 2006 Mont. LEXIS 671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-upshaw-mont-2006.