NO. 93-633 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

STATE OF MONTANA, n._j..._. : .-. : +; ~pr ;:, 

, , 'I ) 

t,, .,a i.? !/ Plaintiff and Respondent, ," , .* -. 

-v- ,j[ie~ 

g 7994 

JOHN OWEN COPELTON, 

C Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Herman A. Watson, 111, Bozeman, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, Patricra 

Jordan, Assistant Attorney General, Uelena, Montana; 

A. Michael Salvagni, Gallatin County Attorney, Jane 

Mersen, Deputy County Attorney, Bozeman, Montana 

Submitted on Briefs: May 19, 1994 

Decided: July 6, 1994 

Filed: 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from a jury verdict and the ensuing sentence 

and judgment by the Eighteenth Judicial District Court, all at in 

County. We affirm. 

We consider the following issue on appeal: 

Did the District Court err in overruling Defendant's objection 

to statements made in the State's closing argument? 

John Copelton (Copelton) and Sam Leggett (Leggett) were 

involved in a one car accident on December 13, 1992, in Bozeman. 

After drinking at various places, the two men ended up at the 

Bozeman gun show where Leggett bought two guns and Copelton bought 

a knife. 

Although Leggett is a professional truck driver, he testified 

that Copelton was driving Leggett's truck. Copelton who had blood 

alcohol content of .I93 at the time he was arrested, is alleged to 

have lost control of the truck and rolled it. Copelton does no4 

remember whether he or Leggett was driving at the time of the 

accident. 

Copelton was subsequently arrested and charged with driving 

under the influence, carrying a concealed weapon, and failure to 

use seat belts. Copelton pled guilty to not using his seat belt. 

However, a jury trial was held on the other two charges. The jury 

returned a guilty verdict after six hours of deliberation and a 

sentencing hearing was subsequently held on November 4, 1993. 

On the Driving Under the Influence charge, the court sentenced. 

Copelton to three days in jail, a fine of $300.00, administrative 

2 
fees of $15.00, court costs of $10.00 and six-month suspension of 

his driver's license. Further, Copelton was required to complete 

the ACT program. On the concealed weapon charge, the court 

sentenced Copelton to a fine of $100.00, administrative fees of 

$15.00, and court costs of $10.00. 

Copelton appeals the jury verdict and the subsequent sentence. 

The basis of this appeal is Copeltonls argument that the 

counselor for the State made prejudicial comments concerning 

evidence outside the record during her closing argument to the 

jury. The statement made included: 

If the State called every rebuttal witness that the 

defendant wanted us to call, weld still be here tomorrow. 

You can't speculate as to what they would have said or 

who they would have called. The State didnvt need to 

call any rebuttal witnesses because there8s plenty of 

evidence in front of you, that Mr. Copelton was driving. 

Copelton argues that the prosecutor's remarks acted to deny his 

right of confrontation of the witnesses to which she referred in 

her closing statement. Copelton states in his brief that his 

counsel objected to this reference to evidence outside the record. 

However, what the record actually shows is at the close of 

defense counse18s own closing argument, he requested that he be 

permitted to make an objection after the jury left. The jury was 

dismissed and then counsel made an objection to something that the 

State's counsel had said during her closing statement. The court 

overruled the objection without any discussion. 

Section 46-20-104, MCA, calls for a "timelyt8 objection except 

as indicated in 3 46-20-701(2), MCA. The latter section provides 

that on appeal this Court can consider errors which affect 
constitutional rights of the party as long as they also 1) 

constitute a right which did not exist at the time of trial, 2) the 

court or law enforcement agency suppressed evidence at trial, or 3) 

a material or controlling fact upon which the claim is predicated 

was not known at the time of trial. 

While Copelton argues on appeal that his constitutional right 

of confrontation is at issue and that the statement prejudiced him, 

he has not excused his failure to object by establishing that an1 

of the reasons mentioned in 5 46-20-701(2), MCA, exist. Failure to 

object to an alleged error at trial in an timely fashion prevents 

this Court from reviewing the alleged error. State v. Rodgers 

(1993), 257 Mont. 413, 849 P.2d 1028. We conclude that because 

Copelton has not met any of the statutory criteria of g 46-20- 

701(2), MCA, his failure to timely object during the State's 

closing argument prevents our review of the alleged error. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of this Court and by a report of its result to the 

West Publishing Company. 

C 

Justice 

We concur: / 

Y ' Chief Justice 
Justices 
July 6, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

fdIowing named: 

Herman A. Watson, 111 

Attorney at Law 

502 S. 19th Ave., Ste; 305 

Bozeman, MT 59715 

Hon. Joseph P. Mazurek, Attorney General 

Patricia Jordan, Assistant 

Justice BIdg. 

Helena, MT 59620 

A. Michael Salvagni, County Attorney 

Jane Mersen, Deputy 

615 S. 16th Ave., Rm. 100 

Bozeman, MT 59715 

ED SMITH 

CLERKOFTHE 

SUPREME COURT 

STATE OF 

MONTANA