NO. 92-468 IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, Plaintiff and Respondent,

ANTHONY J. THOMPSON, Defendant and Appellant.

APPEAL FROM: DistrictCourt of the ThirteenthJudicialDistrict, In and for the County of Yellowstone, The Honorable William J. Speare,Judge presiding.

CO?JNSELOF RECORD: For Appellant: William 

### F. Hooks,Appellate Defender's Office, Helena,Montana For Respondent: Hon. Marc Racicot,Attorney General: John Paulson, Assistant Attorney General, Helena, Montana Dennis Paxinos,Yellowstone County Attorney; Dale Mrkich, Deputy Yellowstone County Attorney, Billings, Montana

Submitted on Briefs: March 11, 1993 Decided: June 10, 1993 FileJustice John Conway Harrison delivered the Opinion of the Court. Anthony Thompson (Thompson)was convicted of criminal sale of dangerous drugs, a felony, after a jury trial in the Thirteenth Judicial District Court, Yellowstone County, theHonorableWilliam J. Spearepresiding. Thompson appeals on thegrounds that District Court error and prosecutor misconduct deprived him of his right to

a fair trial. We affirm the conviction. On August 21, 1991, Thompson was charged by information alleging that between July 29, 1991, and August 2, 1991,Thompson sold .5 grams of cocaine to a confidential informant working for the Billings, Montana, Police Department. This 'icontrolled buyw

was arranged by the police in the followingmanner. The informantwas equipped with a body wire transmitter and given $60 in bills that had been photocopied to record the serial nu&ers. HS 

## -.-- +->--- cahc'l A- cu a vacant lot behind the Arcade Bar on Minnesota Avenue in Billings and instructed to approach a group of people in the vacant lot. A police detective in 

### a nearby parked

car observed the informant's movements and monitored his conversations on the transmitter. Another police detective was stationed in a nearby alley where he could observe the transaction without being seen. The informant asked one of the men if he could sell him a quarterpound of marijuana. Theman said it would takehim a while to get 

### it, and left the area. The informantwas then approached by Thompson, who offered to sell him cocaine. Thompson and the informant got into Thompson's car, a white four-door Cadillac 2sedan. Four bags of a white substance were arranged on the front seat. The informant selected a bay, paid Thompson $50, and returned to the police detective's car. The detective recovered the remaining $10 of the police department's money and tested the white substancewith a Valtox kit. It testedpositive for cocaine; this result later was confirmed by the Montana State Crime Laboratory in Missoula. One of the police detectives observed the entire transaction through binoculars. He also heard the informant's conversations with Thompson and the man who agreed to sell him marijuana. Both detectives had been acquainted with Thompson previously and recognizedhis voice and his car. A license plate check confirmed that Thompson owned the car. The police detectives obtained a warrant and searched Thompson's home the next day, but found neither the money the informant had used to buy the cocaine nor any other incriminating evidence. Although the detectiveshad kept no record of the date

on which the informant had made the controlled buy, overtime reported on their time sheets indicated that it was on August 2, 1991. The search warrant was executed on August 3, 1991. Thompson was formally charged on August 13 and arrested on August 17, 1991. At his first court appearanceonAugust 21, 1991, he pled not guilty to the charge of criminal sale of dangerous drugs. Counsel was appointed for him. Thompson later offered to retaintheappointed attorney, Joseph Zavaletta,on aprivate basis and signed an agreement to pay him $1,000plus $500 if the casewent to trial. Xe paid Mr. Zavaletta $700 in February and March, 1992, but failed to complete the payments. Mr. Zavaletta represented Thompsonathis trial in May but withdrew inJuly after Thompson told him that he intended to appeal his conviction based

on ineffective assistance of counsel. At his trial on May 26-27, 1992,Thompson presented an alibi defense based entirely on the testimony of a friend, Judalon Roundface. Thompson did not testify. Roundface testified that during the week of July 29 through August 2,1991,shehad been Thompson's constantcompanion,driving his carand accompanying him wherever hewent. He had asked her to help him, she said,because he had been beaten up a fewdaysbefore and his face was so badly swollen that he could not see to drive. She picked him up at his home in the morning, Monday through Wednesday of that week and again on Friday,and drovehim wherever he wanted to go. She kept the car overnight all week. On Friday,August 2,Roundface testified,shepicked Thompson up "at exactly 10:15." She and Thompson washed clothes at a laundromat that day, and then went to the Arcade Bar, arriving at four in the afternoon. Thompson remained at the Arcade Bar until it closed, Roundface said,while she left for a time to play the machines at anotherbar. She said that Thompson's car remained in

a parking lot on Minnesota Avenue, north of the bar, and that she keptthekeysuntil the end of that evening. By then,Thompson was feeling well enough to drive, so he left her at the bar and drove home himself.The jury returned a verdict of guilty of criminal sale of dangerous drugs after about six hours of deliberation on May 27, 1992. Thompson raises the following issues on appeal: 1. Whether the District Court erred in holding conferences with counsel to discuss inquiries from the jury during its deliberations,without requiring Thompson's presence. 2. Whether the prosecutor, in his closing remarks,appealed improperly to the jury's sympathy and prejudice. Thompson isbarred fromraising these issues,however,because he did not object to the alleged errors during trial. Thompson acknowledges that defense counsel failed to object, during the trial, to the court's handling of the jury inquiries or to the prosecutor's closing remarks. Section 46-20-L04(2), MCA (emphasisadded), provides that: Upon appeal from a judgment, the court may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment. Failure to make a timelv obiection durinq tri =l ,.-.+: 

### *..*-- ,LA,, ,v,,,LILULr;, a waive~or' the objection except as provided in 46-20-701f21. The exceptions in 46-20-701(2), MCA, require a defendant to establish first, that the alleged error was prejudicial as tohis guilt or punishment; and second, that one of three conditions has been met. Thompson concedes that none of the three statutory conditions apply to his situation,but he insists that under the "plain error" doctrine this Court nevertheless may exercise its power of discretionaryreview. As a general rule, this Court will not entertain issues not raised at trial,and if a defendant fails to lodge a timely objection,hewill not be heard on appeal. State

v. Wilkins (1987), 229 Mont. 78, 746 P.2d 588. General rules arenot without exception, however, an& in Ralldorson v. Halldorson (1977), 175 Mont. 170, 573 P.2d 169, we recognized that appellate courts have a duty to assure that the substantial rights of the parties have not been infringed. We will invokeplain error only in exceptional cases,when it is necessary to ensure a fair and impartial trial. Wilkins, 746 P.2d at 589. We invoked plain error in Wilkins because the district court repeatedly reminded the defendant that he had a right to take the stand, thus drawing the jury's attention to the fact that he had chosen not to testify and thereby infringing on the defendant's right against self-incrimination. Here, in contrast,Thompson has not shown that either of the alleged errors affected a substantial right or thathewas deprived of a fair trial. With regard to the jury inquiries, the facts are

as follows. After the jury had deliberated for about anhour, the foreman sent a note to the judge stating that "wewould like to know if the search warrant was issued before or after the drug purchase." After an extended discussion with defense counsel and the prosecutor, the judge wrote the jury a note saying that the search warrant was issued on Friday, August 2, 1991, and executed on August 3, 1991. He stated for the record that "the court has gathered with counsel, shown them the request, and it has been agreed to answer as follows

# . .

# . . II Several hours whether they couldlater,the jury sent in another question,asking see the "original mapn that was drawn 

### of theArcade Bar area. The judge discussed this request briefly with counsel and sent the jury a note saying that they could not see the map because itwas not in evidence. Based on the record,no other

answer could have been given. Therefore, Thompson's substantial rights were not adversely affected by his absence. The second alleged error occurred when the prosecutor concludedhis rebuttal closing argument with the followingcomment: Ladies and gentlemen of the jury, drug cases are difficult cases because drug abuse is a national issue. Drug sellersare the focus, or ought to be the focus, of the war on drugs. With your verdict you can make this community a population with one fewer drug sellers [sic] than it used to have. Thompson argues 

### that it is improper for a prosecutor to urge a jury "to assume the mantle of the community's conscience and, in that capacity, to convict an accused." Quoting a federal court of appeals opinion,he suggests that "jurorsmay be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the solution of some pressing social problem.'' United Statesv. Monaghan (D.C. Cir. 1984), 741 F.2d 1434, 1441. In Monaqhan, however, the court held that "overstepping the bounds of proper advocacyu does not necessarily violate an accused's right to due process. In order to "rise to constitutional proportions," the court said, an improper prosecutorial remark must cause substantial prejudice to the defendant. 741F.2d at 1443. Here,while theprosecutor's remarks may have been objectionable, the record contains no evidence that his closing remarks caused substantial prejudice to the defendant. Therefore, absent an objection, the remarks are not a basis for 7invoking the plain error doctrine. As there is no basis for invoking the plain error doctrine, we hold that Thompson's failure to object to the alleged errors at trial bars him from raising them on appeal. Affinned.

Justice William E. Hunt, Sr., specially concurring. I concur in the result of themajority opinion, but not with all that is said therein.June10,1993

Ihereby certifythatthe followingorderwassentbyUnitedStatesmail, prepaid, to the following named:

WilliamHooks,AttorneyatLaw StateAppellate PublicDefender's Office CapitolStation Helena,MT 59620 Hon. MarcRaciwt,Attorney General JohnPaulson, Assistant 215N. Sanders, JusticeBldg. Helena,MT 59620 DennisPaxinos,County Attorney Dale Mrkich,Deputy P.O. Box35025 Billings,MT 59107

ED SMITH CLERKOFTHE SUPREME COURT STATEOFMONTANA BY: Deputy