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: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

CO?JNSEL OF 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 

File 
Justice 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, the Honorable William 

J. Speare presiding. Thompson appeals on the grounds 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 following manner. 

The informant was 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 

quarter pound of marijuana. The man said it would take him a while 

to get it, and left the area. The informant was then approached by 

Thompson, who offered to sell him cocaine. Thompson and the 

informant got into Thompson's car, a white four-door Cadillac 

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sedan. 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 substance with a Valtox kit. It tested positive 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 

recognized his 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 detectives had 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 appearance on August 21, 1991, 

he pled not guilty to the charge of criminal sale of dangerous 

drugs. Counsel was appointed for him. Thompson later offered to 

retain the appointed attorney, Joseph Zavaletta, on a private basis 

and signed an agreement to pay him $1,000 plus $500 if the case 
went to trial. Xe paid Mr. Zavaletta $700 in February and March, 

1992, but failed to complete the payments. Mr. Zavaletta 

represented Thompson at his trial in May but withdrew in July 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, she had been Thompson's constant companion, driving 

his car and accompanying him wherever he went. He had asked her to 

help him, she said, because he had been beaten up a few days before 

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 drove him wherever 

he wanted to go. She kept the car overnight all week. 

On Friday, August 2, Roundface testified, she picked 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 another bar. She said that Thompson's car remained in 

a parking lot on Minnesota Avenue, north of the bar, and that she 

kept the keys until 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 is barred from raising 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 

(emphasis added), 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 to his 

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 discretionary review. As a general rule, this Court will 

not entertain issues not raised at trial, and if a defendant fails 

to lodge a timely objection, he will not be heard on appeal. State 

v. Wilkins (1987), 229 Mont. 78, 746 P.2d 588. General rules are 
not 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 invoke plain 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 that he was deprived 

of a fair trial. With regard to the jury inquiries, the facts are 

as follows. 

After the jury had deliberated for about an hour, the foreman 

sent a note to the judge stating that "we would 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 could 

later, the jury sent in another question, asking 

see the "original mapn that was drawn of the 
Arcade 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 it was 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 

concluded his rebuttal closing argument with the following comment: 

Ladies and gentlemen of the jury, drug cases are 

difficult cases because drug abuse is a national issue. 

Drug sellers are 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 "jurors may be persuaded by such 

appeals to believe that, by convicting a defendant, they will 

assist in the solution of some pressing social problem.'' United 

States v. 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. 741 F.2d at 1443. Here, while the prosecutor'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 

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invoking 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. 

Aff inned. 

Justice William E. Hunt, Sr., specially concurring. 

I concur in the result of the majority opinion, but not with 

all that is said therein. 
June 10, 1993 

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

named: 

William Hooks, Attorney at Law 

State Appellate Public Defender's Office 

Capitol Station 

Helena, MT 59620 

Hon. Marc Raciwt, Attorney General 

John Paulson, Assistant 

215 N. Sanders, Justice Bldg. 

Helena, MT 59620 

Dennis Paxinos, County Attorney 

Dale Mrkich, Deputy 

P.O. Box 35025 

Billings, MT 59107 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: 

Deputy