c ir-641.—if 

DA 20-0078

IN THE SUPREME COURT OF THE STATE OF MONTANA

2022 MT 104

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

STANLEY JOSEPH OLIVER,

 Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DC 19-185

Honorable Shane Vannatta, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Deborah S. Smith, Assistant Appellate 

Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant 

Attorney General, Helena, Montana

Kirsten H. Pabst, Missoula County Attorney, Ryan Mickelson, Deputy

County Attorney, Missoula, Montana

Submitted on Briefs: April 27, 2022

 Decided: May 31, 2022

Filed:

__________________________________________

Clerk

05/31/2022

Case Number: DA 20-0078
2

Justice Ingrid Gustafson delivered the Opinion of the Court. 

¶1 Stanley Joseph Oliver appeals from his convictions for partner or family member 

assault (PFMA), unauthorized use of a motor vehicle, and two counts of tampering with 

witnesses or informants, in the Fourth Judicial District Court, Missoula County. The

restated issues on appeal are: 

1. Did the District Court abuse its discretion when it allowed two law enforcement 

officers to testify about out-of-court statements made by the State’s two lead 

witnesses? 

2. Was Oliver’s right to a fair trial by an impartial jury violated when the District 

Court declined to interview a juror who told one of the State’s witnesses he was 

brave after testifying? 

3. Was Oliver’s right to confrontation violated by the repeated emphasis on 

recorded jail phone calls? 

4. Did Oliver receive ineffective assistance of counsel when counsel did not object 

to the repeated use of the recorded jail calls at trial and encouraged the jury during 

closing arguments to relisten to the recorded jail calls during jury deliberations? 

5. Is Oliver entitled to a new trial based on the cumulative error doctrine? 

6. Did the District Court err in imposing jury and other costs on Oliver without 

first undertaking an ability to pay inquiry? 

¶2 We affirm Oliver’s convictions. We reverse the District Court’s imposition of 

various fees and costs on Oliver and remand for the District Court to undertake the 

appropriate ability to pay inquiry before imposing those costs on Oliver. 

PROCEDURAL AND FACTUAL BACKGROUND

¶3 Alyson Robbins and Oliver were in a tumultuous on again, off again, relationship 

for two years. They both lived an itinerant lifestyle, often staying with friends and family, 
3

in hotels, or at homeless shelters around Lake, Missoula, and Flathead Counties. In early 

March 2019, the two were on again after several months apart. After reconnecting, they 

went to Missoula in search of a used pickup truck to purchase. Robbins testified she 

purchased the truck with money from her tax return. Oliver testified he provided the money 

to purchase the truck from his earnings doing construction work. The bill of sale was made 

out to Robbins. About a week later, Oliver, Robbins, and her two minor daughters went to 

stay with Clayton Pierre in his trailer outside Arlee, Montana. 

¶4 On the morning of March 20, 2019, deputies responded to Pierre’s trailer home after 

a phone call to 9-1-1 was hung up. Deputies found Pierre, Robbins, and her two children 

at the scene. Robbins’s face and hair were covered in dried blood, she had a cut above her 

left eye, and she had bruising and minor cuts on her back. Robbins told the deputies Oliver 

had strangled her the previous evening and tackled and hit her that morning and caused the 

injuries. She also relayed to the deputies Oliver had left and taken her truck without her 

permission. Pierre corroborated Robbins’ account of the attack that morning to the 

deputies. Oliver was arrested later that day at his mother’s home, where the truck was also 

found. Oliver was charged with one count of strangulation of a partner or family member, 

a felony, in violation of § 45-5-215, MCA; one count of PFMA, a felony, in violation of 

§ 45-5-206, MCA, and unauthorized use of a motor vehicle, a misdemeanor, in violation 

of § 45-6-308(1), MCA. 

¶5 Oliver did not make bail and was detained at the Missoula County Detention Facility

pending trial. Jailhouse records showed Oliver called Robbins from the jail at least 
4

seventy-seven times. Robbins answered seven of those calls between March 24 and April 

6. Based on the content of those calls the State added two counts of tampering with a 

witness or informant, both felonies, in violation of § 45-7-206, MCA. 

¶6 Oliver and the State largely agreed on what portions of the jailhouse calls were 

admissible for trial. Oliver sought to have a few additional seconds admitted in which 

Oliver alleged Pierre was using heroin. The court ruled those additional portions of the 

calls were admissible under M. R. Evid. 403 as they could explain Robbins’s reactions to 

Oliver on the calls. The admitted portions of the jailhouse calls were played in their entirety 

at trial and shorter portions of the calls were repeated throughout trial and again during the 

State’s closing arguments. In the calls, Oliver repeatedly encouraged Robbins to “amend”

her statement, to tell officers she would not testify against him, and to leave Montana and 

move to Spokane.

¶7 At trial, the State called Robbins, Pierre, two deputies from the Missoula County 

Sheriff’s Office, and an investigator from the County Attorney’s office to testify. Oliver 

testified in his own defense. While on the stand, Robbins had difficulty providing a linear 

timeline of events. She described a chaotic series of altercations and violent attacks from 

Oliver occurring in the living room, their shared bedroom, outside the trailer, around her

truck, and in Pierre’s bedroom. She testified Oliver took her truck without her permission 

and tried to get the paperwork for the truck from her. Similarly, Pierre struggled to recall 

details and had difficultly recalling how long he had known Oliver. He testified he had a 

head injury that affected his memory. Both were consistent Oliver tackled and hit Robbins 
5

in Pierre’s room in front of Pierre on the morning of March 20, 2019, causing Robbins’s 

injuries. They both testified Robbins fell onto a bucket and broke the bucket. A photo of 

a shattered bucket deputies found in Pierre’s room was entered into evidence. 

¶8 The District Court also admitted testimony from the investigating deputies about 

what Robbins and Oliver had told them the morning of March 20, 2019, over Oliver’s 

hearsay objections. Oliver’s counsel objected on hearsay grounds seven times during the 

testimony of the two deputies who responded to the scene. During the testimony of Deputy 

Paul Von Gontard, Oliver first objected when Von Gontard began relaying what Pierre told 

him at the scene. The prosecutor argued “the jury has heard from Mr. Pierre already, so 

we’ve established what he said. And additionally, this is for affect [sic] on the listener in 

establishing his steps after response.” The court overruled Oliver’s objection. Von 

Gontard then testified Pierre told him “there had been a ‘domestic.’” Oliver next objected 

when the prosecutor asked Von Gontard what Robbins had told him about the truck. The 

prosecutor responded he had the “same response” as to the prior hearsay objection. Oliver 

contended the statement was an out-of-court statement offered for its truth and therefore 

needed to fall under an exception to the hearsay rule to be admissible. The court explained 

“it’s not made by an out-of-court declarant, because she testified,” and overruled the 

objection again. Von Gontard explained Robbins told him she had purchased the truck, 

but Oliver believed it belonged to him and tried to take it away from her. Robbins told 

Von Gontard she and Oliver had gotten into a physical altercation over Oliver trying to 

take the truck and the paperwork for the truck. Oliver again reiterated the hearsay objection 
6

after Von Gontard testified Robbins told him Pierre had hidden the paperwork for the truck 

to help her and prevent Oliver from getting the paperwork. Oliver objected on hearsay 

grounds again when the prosecutor asked Von Gontard what Robbins told him had 

occurred the prior evening. The court overruled the hearsay objection again, stating it 

“doesn’t believe that it meets the hearsay objection, because Ms. Robbins has given 

testimony, and this testimony, presumably, is provided to either confirm or potentially vary 

the state of mind of Ms. Robbins.” After this ruling, Oliver’s counsel noted for the record 

proper foundation had not been established to admit the statements as prior consistent 

statements. Von Gontard then explained Robbins had told him Oliver had strangled her 

the prior evening by holding his knee against her throat. 

¶9 During the testimony of Deputy Josh Edison, Oliver objected on hearsay grounds 

when the prosecutor asked what Pierre told Edison. Oliver’s counsel explained the 

question called for an out-of-court statement offered for the truth of the matter asserted and 

“[i]t falls under the definition of hearsay.” The court again overruled the objection. Edison 

then testified Pierre told him he heard an argument between Oliver and Robbins, the 

argument moved into Pierre’s room, Oliver threw Robbins to the ground, and Oliver got 

up and left when Pierre told him to stop. When the prosecutor next asked what Robbins 

had told Edison, Oliver again objected on hearsay grounds, which the court overruled. 

Edison went on to testify Robbins told him there had been an argument outside and she 

had picked up a golf club and at some point, Oliver had picked up an axe. Later, the 

prosecutor asked Edison what Robbins told him had happened the previous evening. 
7

Oliver once again objected on hearsay grounds, which the court overruled. Edison then 

testified Robbins told him there had been an argument over a blanket in the living room 

and Oliver had pushed her down and put his knee on her throat three separate times. 

Robbins told Edison she had a sore throat and a sore tongue. 

¶10 Oliver provided a much different account of the events. Oliver testified he did not 

know how Robbins sustained the injuries to her face and back, but he saw her trip in the 

doorway of their bedroom as he ran out of the trailer during an argument in the early 

morning hours of March 20. He testified he drove to his mother’s house at that point and 

did not return. He also testified he paid for the truck and trusted Robbins to handle the 

paperwork while he was at work the next day and had no idea only her name appeared on 

the title. Oliver further explained he was not trying to convince Robbins to flee the State 

or to lie to law enforcement in the jailhouse calls but rather was discussing their prior plan 

to move to Spokane together and trying to convince her to tell the truth when he told her 

repeatedly to “amend” her statement. 

¶11 On the morning of the second day of trial, the State informed the court Cheryl Patch, 

a crime victim advocate, overheard a juror say something about being brave to Pierre in 

the hallway after his testimony. The court interviewed Patch, who explained she was 

standing in the hall with Pierre when the jurors filed by. As they passed, a juror “said 

something about him being brave.” She said no one responded in any way to the comment 

and she was not sure if anyone else heard it. She thought the juror who spoke was an older 

woman with white hair. Based on that description, the State told the court it thought the 
8

juror might be the alternate. The court asked Patch to remain in the courtroom when the 

jury came in to start the day and determine which juror had spoken to Pierre and to inform

the court outside the presence of the jury. The court told the parties it was not going to 

take immediate action but would wait for a better identification from Patch at which point 

the court may interview the juror. The court stated it would admonish the jury not to talk 

to anyone and remind them not to draw conclusions about the case until the completion of 

evidence. 

¶12 During a break in the trial, Oliver’s counsel again raised the issue of the juror 

speaking to Pierre. After looking at the jury and based on Patch’s description she believed 

the juror was Juror 12, not the alternate. The State agreed. Oliver’s counsel raised concerns 

about Juror 12’s “ability to be fair, and to follow the Court’s instructions that have already 

been given about not forming an opinion prior to [the] completion of evidence.” The court 

stated it would continue forward until it had a positive identification from Patch but asked 

the parties to consider substituting Juror 12 with the alternate. 

¶13 At the next break, Oliver’s counsel informed the court Oliver and the State had 

agreed to excuse Juror 12 in favor of the alternate stepping in. The State told the court 

Patch had emailed she was “fairly certain” it was Juror 12. The court granted Oliver’s 

motion and stated it would substitute the alternate prior to sending the jury to deliberate. 

¶14 At the end of day 2, Oliver’s counsel asked the court to excuse the rest of the jury 

for the evening and bring Juror 12 to the courtroom for questioning about what had 

occurred and whether she had “already made a prejudgment about the case.” The court 
9

informed the parties it did not want to taint or interfere with the jury process and declined 

to exclude her immediately “[g]iven right now there is no apparent harm,” but “if she is 

going to deliberate with the jury . . . she would be subject to inquiry.” The parties then 

moved onto finalizing jury instructions. After closing arguments the next day, the court 

informed the jury only twelve jurors were needed to deliberate and Juror 12 was being 

dismissed by stipulation of the parties. 

¶15 During the State’s closing, the State played portions of the recorded jailhouse calls 

and argued Oliver sought to exert control over Robbins and threatened her to get her to 

change her story or flee the State to get the charges against him dropped. The State further 

emphasized portions of the calls where Robbins accused Oliver of taking her truck and 

hurting her, which Oliver did not deny and for which he apologized during some of their

conversations. During her closing, Oliver’s counsel encouraged the jury to relisten to the

jailhouse calls if necessary. Oliver’s counsel insisted when listened to in their entirety the 

recordings supported Oliver’s position he was not trying to get Robbins to lie or to flee the 

State but was trying to help Robbins get the truck back from his mother’s house and discuss 

their prior plans to move to Spokane. 

¶16 During deliberations, the jury asked to hear the jailhouse calls again. Oliver did not 

object to the request but asked the calls to be played in their entirety. The calls were played 

in their entirety in the courtroom with the attorneys and Oliver present. 

¶17 The jury convicted Oliver of four counts: PFMA, unauthorized use of a motor 

vehicle, and two counts of tampering with a witness. The jury acquitted him of 
10

strangulation of a partner of family member. The District Court sentenced Oliver to the 

Department of Corrections for 5 years, 2 suspended, for PFMA; 6 months, all suspended, 

for unauthorized use of a motor vehicle; and 10 years, 5 suspended, on each of the 

tampering charges to all run concurrently. Oliver appeals. 

STANDARD OF REVIEW

¶18 We review a district court’s evidentiary rulings for an abuse of discretion. State v. 

Smith, 2021 MT 148, ¶ 14, 404 Mont. 245, 488 P.3d 531. “A district court abuses its 

discretion when it acts arbitrarily without the employment of conscientious judgment or 

exceeds the bounds of reason, resulting in substantial injustice.” Smith, ¶ 14. To the extent 

an evidentiary ruling is based on a conclusion of law, we review “whether the court 

correctly interpreted the law.” Smith, ¶ 14 (quoting State v. McOmber, 2007 MT 340, ¶ 10, 

340 Mont. 262, 173 P.3d 690). 

¶19 We review rulings on motions to interrogate a juror for an abuse of discretion. State 

v. Cunningham, 2018 MT 56, ¶ 8, 390 Mont. 408, 414 P.3d 289. 

¶20 Our review of constitutional questions is plenary. State v. Lamoureux, 2021 MT 94, 

¶ 10, 404 Mont. 61, 485 P.3d 192. If no contemporaneous objection is made, we 

discretionarily may review claimed errors that implicate a criminal defendant’s 

fundamental constitutional rights under plain error review. State v. Clemans, 2018 MT 

187, ¶ 4, 392 Mont. 214, 422 P.3d 1210. 
11

¶21 Claims of ineffective assistance of counsel are mixed questions of law and fact,

which we review de novo. State v. Weber, 2016 MT 138, ¶ 11, 383 Mont. 506, 373 P.3d 

26. 

¶22 We review a criminal sentence imposing over one year of incarceration for legality. 

State v. Moore, 2012 MT 95, ¶ 10, 365 Mont. 13, 277 P.3d 1212. We review de novo 

whether the court adhered to the applicable sentencing statute. Moore, ¶ 10. 

DISCUSSION

¶23 1. Did the District Court abuse its discretion when it allowed two law enforcement

officers to testify about out-of-court statements made by the State’s two lead 

witnesses? 

¶24 Oliver argues the District Court erred in allowing the deputies to testify to out-ofcourt statements from Robbins and Pierre over his objection. Oliver maintains these 

statements were hearsay and did not fall under any exceptions to the prohibition on hearsay

and could not be admitted as prior consistent statements under M. R. Evid. 801(d)(1)(B). 

Oliver argues the error was not harmless, as the testimony from the officers was needed to 

bolster the testimony from the State’s two unreliable lead witnesses. 

¶25 The State concedes the statements from the deputies were not admissible under 

Rule 801(d)(1)(B) as prior consistent statements to rebut an allegation the statements were 

recently fabricated. The State contends instead the statements were admissible as prior 

inconsistent statements, as both Robbins and Pierre had memory lapses and memory lapses 

are inconsistencies under Rule 801(d)(1)(A). The State maintains any error in admitting 

the statements was harmless. 
12

¶26 “Hearsay is a statement, other than one made by the declarant while testifying at the 

trial or hearing, offered in evidence to prove the truth of the matter asserted.” 

M. R. Evid. 801(c). As a general rule, hearsay statements are not admissible. 

M. R. Evid. 802. Under M. R. Evid. 801(d)(1), a statement is not hearsay if: 

The declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement, and the statement is (A) inconsistent 

with the declarant’s testimony, or (B) consistent with the declarant’s 

testimony and is offered to rebut an express or implied charge against the 

declarant of subsequent fabrication, improper influence or motive. 

A claimed lapse in memory may be an inconsistency if the lapse in memory is “regarding 

prior declarations of fact [the witness] actually made.” Smith, ¶ 27. Mere omissions are 

not inconsistencies. See Smith, ¶ 31. 

¶27 A review of the record shows the statements to which Oliver objected were 

consistent with what Robbins and Pierre had already testified. While the State points to 

parts of Robbins’s and Pierre’s testimonies where they testified to a lack of recollection, 

the statements from the officers did not fill in those gaps. Rather, the hearsay statements 

simply reiterated what Robbins and Pierre testified to in open court. These consistent 

statements were not admissible under Rule 801(d)(1)(A) or (B). The District Court erred 

as a matter of law in admitting the statements on the ground Robbins and Pierre had already 

testified. The hearsay rule prohibits out-of-court statements admitted for the truth of the 

matter asserted unless an exception applies, regardless of whether the declarant testifies in 

court.
13

¶28 Not every error committed by a district court is reversible, however. Only 

prejudicial errors require reversal. See § 46-20-701(1), MCA. When improperly admitted 

statements prove an element of the offense, their admission is harmless error when 

“admissible evidence . . . proves the same facts as the tainted evidence” and “the quality of 

the tainted evidence was such that there was no reasonable possibility that it might have 

contributed to the defendant’s conviction.” McOmber, ¶ 26. Prior consistent statements 

have “a minimal effect on the trial” if they do “no more than repeat admissible in-court 

testimony” and their content is “not inflammatory” or “more compelling or deserving of 

greater evidentiary weight” than the admissible in-court testimony. McOmber, ¶ 35.

¶29 All the statements the deputies testified to were consistent with and cumulative of

the testimonies of Pierre and Robbins and other evidence. The testimony from the deputies 

related to the charges of PFMA, unauthorized use of a motor vehicle, and strangulation. 

The jury convicted Oliver of PFMA and unauthorized use of a motor vehicle and acquitted 

him of strangulation. Both Pierre and Robbins corroborated the events underlying the 

PFMA charge—Oliver tackled Robbins in Pierre’s room onto a bucket and caused her 

injuries. A photograph from the scene showed a shattered bucket in Pierre’s room. 

Robbins testified she and Oliver fought over the paperwork to the truck, which was in her

name only. The paperwork was entered into evidence and also showed the truck was in 

Robbins’s name alone. The testimony from Robbins and the deputies regarding Oliver’s 

strangulation of her the prior evening, which lacked other corroborating evidence, was not 

accepted by the jury, as they acquitted him of this charge. These circumstances 
14

demonstrate the jury did not rely on the bolstering done by the deputies but considered the 

other evidence before them in reaching their verdict. The deputies’ testimony repeated 

admissible in-court testimony and their testimony was not more compelling or deserving 

of greater evidentiary weight under the circumstances here. The admission of the hearsay 

statements was harmless error.

¶30 2. Was Oliver’s right to a fair trial by an impartial jury violated when the District 

Court declined to interview a juror who told one of the State’s witnesses he was 

brave after testifying?

¶31 Oliver argues the District Court violated Oliver’s right to a fair trial by an impartial 

jury when it declined to interview Juror 12 after learning she told Pierre he had been brave 

for testifying. Oliver argues the presumption of prejudice to him was unrebutted and he is 

entitled to a new trial. 

¶32 A trial court “has significant latitude when ruling on” matters relating to juror 

misconduct and we will give “considerable weight” to its determinations, as “the trial court 

is in the best position to observe the jurors and determine the potential for prejudice when 

allegations of jury misconduct are raised.” State v. Gollehon, 262 Mont. 293, 303, 864 P.2d 

1257, 1263-64 (1993). 

¶33 Oliver relies on State v. Eagan and State v. Stringer for the proposition “if jury 

misconduct is shown tending to injure the defendant, prejudice to the defendant is 

presumed; however, the presumption is not absolute and may be rebutted by the use of 

testimony of the jurors to show facts which prove that prejudice or injury did not or could 

not occur.” State v. Eagan, 178 Mont. 67, 79, 582 P.2d 1195, 1202 (1978); see also State 
15

v. Stringer, 271 Mont. 367, 383-84, 897 P.2d 1063, 1073 (1995). This presumption

imputes the prejudicial effect of any misconduct on the part of one juror to the entire jury 

panel—thus it presumes any prejudicial juror misconduct violated a defendant’s rights to 

an impartial jury. In Eagan, we explained “[w]hen a juror is found to have been guilty of 

improper conduct, such improper conduct is charged to the entire panel,” unless such 

presumption is rebutted by the State. Eagan, 178 Mont. at 78, 582 P.2d at 1201. Our later 

cases have clarified this presumption imputing any prejudice against the defendant to the 

entire jury panel arises “only after there has been a threshold showing of misconduct which 

injures or prejudices the defendant.” State v. McNatt, 257 Mont. 468, 472, 849 P.2d 1050, 

1052-53 (1993). We have explained this means the “alleged jury misconduct must affect 

a material matter in dispute and prejudice the complaining party.” McNatt, 257 Mont. 

at 472, 849 P.2d at 1053 (quoting State v. Sor-Lokken, 247 Mont. 343, 353, 805 P.2d 1367, 

1374 (1991)). Thus, an allegation of jury misconduct does not give rise to a presumption 

the alleged misconduct was prejudicial to the defendant in and of itself. Rather, only if the

alleged misconduct tends to cause an injury or prejudice to the defendant, then a 

presumption arises the entire jury panel is prejudiced against the defendant. The facts of 

Eagan, Stringer, Gollehon, and McNatt illustrate this distinction. 

¶34 In Eagan, a juror went out to a bar after the second day of a trial for mitigated 

deliberate homicide. The juror told a fellow bar patron “he was on the jury . . . and as far 

as he was concerned [the defendant] was guilty” and “half the jury” were friends of the 

deceased victim. Eagan, 178 Mont. at 70, 582 P.2d at 1197. When questioned, the juror 
16

maintained anything he said was a joke and denied discussing the case with any of the other 

jurors. Eagan, 178 Mont. at 72-73, 582 P.2d at 1198. The court replaced the juror with 

the alternate and did not question the rest of the jury at any point about whether the 

disqualified juror had discussed the case with any of them. This Court reversed and 

remanded the case for a new trial. We explained the juror’s misconduct was “charged to 

the entire panel.” Eagan, 178 Mont. at 78, 582 P.2d at 1201. The juror’s alleged statements

tended to show injury or prejudice to the defendant’s right to an impartial jury on their 

face—he stated he had already decided the defendant’s guilt before the close of evidence

and further indicated half the jury panel were friends with the victim. Given the nature of 

the allegations, prejudice to the defendant was presumed but the presumption could “be 

rebutted by the use of testimony of the jurors to show facts which prove that prejudice or 

injury did not or could not occur.” Eagan, 178 Mont. at 79, 582 P.2d at 1202. We 

explained this could have been accomplished through questioning the jury after they had 

reached a verdict but before the verdict was announced about whether the disqualified juror 

had discussed the case with any of them. Eagan, 178 Mont. at 78-79, 582 P.2d at 1201. 

As no evidence was produced to prove the defendant was not prejudiced, the presumption 

of prejudice remained and the defendant’s right to a fair trial was violated. 

¶35 In Stringer, the defendant was convicted of aggravated kidnapping and assault of 

his ex-wife. Stringer, 271 Mont. at 370, 897 P.2d at 1065. Before trial, the defendant and 

his ex-wife reconciled and remarried. Stringer, 271 Mont. at 370, 897 P.2d at 1065. The 

testimony the wife eventually gave at trial differed significantly from her prior statements 
17

to police and she testified her prior statements were false. Stringer, 271 Mont. at 372, 

897 P.2d at 1066. After the jury was empaneled but before any witnesses were called, 

defense counsel informed the district court the wife knew one of the jurors and “there had 

been problems between” the juror and the wife. Stringer, 271 Mont. at 383, 897 P.2d at

1072-73. The court declined to interview or remove the juror, reasoning the juror “doesn’t 

really know them to that degree” as the juror had not disclosed the information when asked 

during voir dire. Stringer, 271 Mont. at 383, 897 P.2d at 1073. This Court reversed, 

explaining there was no factual basis for the district court to conclude the juror’s failure to 

report she knew the wife meant she did not know the wife or defendant very well, rather 

than concluding the juror intentionally concealed the information during voir dire. 

Stringer, 271 Mont. at 383, 897 P.2d at 1073. Prejudice to the defendant from intentional 

concealment of bias against the wife—whose change in story would likely have to be 

believed for the defendant’s acquittal—was “inherent in the circumstances.” Stringer, 

271 Mont. at 384, 897 P.2d at 1073. Thus, the presumption of prejudice attached and 

required further inquiry from the district court to dispel it. As the presumption of prejudice 

went unrebutted, this Court reversed the case for a new trial. Stringer, 271 Mont. at 384, 

897 P.2d at 1073. 

¶36 In Gollehon, a brief conversation occurred between one or two jurors and a 

correctional officer who was providing security at the courthouse and who had testified 

earlier in the trial. Gollehon, 262 Mont. at 302, 864 P.2d at 1263. The correctional officer 

was questioned in chambers and testified the conversation was about the Montana State 
18

University football team and he did not realize he was talking to members of the jury. 

Gollehon, 262 Mont. at 302, 864 P.2d at 1263. Based on this testimony, the district court 

declined to interview the jurors or to grant a mistrial. This Court affirmed, explaining no 

presumption of prejudice attached as there was no “threshold showing of misconduct which 

injures or prejudices the defendant.” Gollehon, 262 Mont. at 303, 864 P.2d at 1264

(quoting McNatt, 257 Mont. at 472, 849 P.2d at 1052-53)). The conversation was a brief, 

casual exchange right outside the courtroom and the circumstances did not suggest or tend 

to show injury or prejudice to the defendant. 

¶37 In McNatt, the defendant was convicted of felony sexual assault of a child. McNatt, 

257 Mont. at 469, 849 P.2d at 1051. During trial, the defendant’s nine-year-old 

stepdaughter testified the victim told her about the assault the night it occurred. McNatt, 

257 Mont. at 469, 849 P.2d at 1051. On cross-examination, defense counsel sought to 

impeach the stepdaughter on the issue of when the victim told her about the sexual assault. 

McNatt, 257 Mont. at 469-70, 849 P.2d at 1051. Defense counsel asked the stepdaughter 

four different times during cross-examination if she remembered previously telling defense 

counsel the victim did not tell her about the assault until the next day. McNatt, 257 Mont. 

at 470, 849 P.2d at 1051. Each time in response to being asked whether she remembered 

she had given a different answer to defense counsel before trial, the stepdaughter got upset 

and started to cry and responded no. McNatt, 257 Mont. at 470, 849 P.2d at 1051. After 

the fourth time defense counsel asked this question, a juror interrupted the proceedings and 

stated “Your honor, I cannot sit through anymore questioning to this little girl. If I am in 
19

contempt of court, I am in contempt, and I will settle with you. I must be excused right 

now if this questioning is going to continue.” McNatt, 257 Mont. at 470, 849 P.2d at 1051. 

The district court agreed with the juror and ordered the stepdaughter to be taken off the 

stand. The defendant sought a mistrial based on the juror’s inability to remain fair and 

impartial and the potential prejudicial effect of this incident on the entire jury panel. 

McNatt, 257 Mont. at 470, 849 P.2d at 1051-52. Alternatively, the defendant sought 

removal of the juror. McNatt, 257 Mont. at 470, 849 P.2d at 1052. The district court denied 

both motions. The district court found no prejudice to either side, explaining the outburst 

“may have indicated the juror’s sympathy for the witness, [but] it did not mean he was ‘for 

or against the defendant.’” McNatt, 257 Mont. at 470, 849 P.2d at 1052. This Court 

affirmed. A presumption of prejudice to the defendant did not arise as there was “no initial 

showing that the juror’s outburst resulted in prejudice to” the defendant. McNatt, 

257 Mont. at 472, 849 P.2d at 1053. The witness was not the victim and was being crossexamined on a matter not directly related to the elements of the alleged crime. The juror’s 

comment “did not indicate any hostility toward the defendant, nor did it indicate that the 

juror had formed an opinion in relation to the defendant.” McNatt, 257 Mont. at 472, 

849 P.2d at 1053. The comment simply demonstrated the juror “felt sorry for the little girl” 

when she became upset on the witness stand. McNatt, 257 Mont. at 472, 849 P.2d at 1053. 

Without the threshold showing of prejudice, the burden did not shift to the State to prove 

the jury panel was not prejudiced and the district court did not abuse its discretion in 
20

declining to declare a mistrial or to replace the juror with an alternate. McNatt, 257 Mont. 

at 473, 849 P.2d at 1053.

¶38 Like in McNatt, the fleeting comment from Juror 12 to Pierre, who was not the 

victim of the crime, displayed sympathy for the witness, but “did not indicate any hostility 

toward the defendant, nor did it indicate that the juror had formed an opinion in relation to 

the defendant.” McNatt, 257 Mont. at 472, 849 P.2d at 1053. Oliver has thus failed to 

meet the threshold requirement the alleged misconduct tended to injure or prejudice him, 

which would have imputed that injury or prejudice to the entire jury panel and shifted the 

burden to the State to dispel the presumption. Oliver’s suggestion on appeal Juror 12 might 

have expressed opinions to other jurors while the case was being tried is pure speculation. 

There was no indication or allegations of such conduct before the District Court and there 

is no presumption Juror 12’s actions prejudiced the rest of the panel against him, as the 

alleged misconduct did not tend to injure or prejudice Oliver. While the District Court 

would have been within its discretion to immediately remove Juror 12 from the panel, 

question her about her interaction with Pierre, or admonish her not to speak to anyone, the 

District Court did not abuse its discretion in failing to do so. In fact, “[t]his Court has 

affirmed the use of alternate jurors to avoid a mistrial where no prejudice has been shown 

to a defendant from juror conduct.” State v. Close, 267 Mont. 44, 49, 881 P.2d 1312, 1315 

(1994) (citing State v. Pease, 222 Mont. 455, 724 P.2d 153 (1986) and State v. Baugh, 

174 Mont. 456, 571 P.2d 779 (1977)). “The District Court was in the best position to 

evaluate the incident, and in the absence of a showing of prejudice, we will defer to the 
21

court’s determination that the alleged jury misconduct did not entitle [the defendant] to a 

mistrial.” Gollehon, 262 Mont. at 303, 864 P.2d at 1264. The District Court’s decision to 

make Juror 12 the alternate and not have her deliberate with the rest of the panel was a 

reasonable and cautious remedy in light of the facts before the court.

¶39 3. Was Oliver’s right to confrontation violated by the repeated emphasis on 

recorded jail phone calls?

¶40 Oliver asks this Court to conduct plain error review of the violation of Oliver’s right 

to confrontation by the repeated use of the recorded jail phone calls during trial. Oliver’s 

counsel did not object to the repeated playing of the recordings at trial and in fact, 

encouraged the jury to relisten to the recordings during deliberations in her closing 

arguments. 

¶41 Generally, we will not review an issue not objected to at trial. See State v. Lawrence, 

2016 MT 346, ¶ 6, 386 Mont. 86, 385 P.3d 968. Plain error review is proper “in situations 

that implicate a defendant’s fundamental constitutional rights,” and where “failing to 

review the alleged error may result in a manifest miscarriage of justice, leave unsettled the 

question of the fundamental fairness of the proceedings, or compromise the integrity of the 

judicial process.” Lawrence, ¶ 9 (quoting State v. Aker, 2013 MT 253, ¶ 21, 371 Mont. 

491, 310 P.3d 506. 

¶42 Oliver fails to allege a violation of his right to confrontation under the Sixth 

Amendment to the United States Constitution and Article II, Section 24, of the Montana 

Constitution. Rather, Oliver alleges violations of § 46-16-503(2), MCA, and the related

common law rule limiting the rehearing or replaying of testimonial evidence during jury 
22

deliberations. See State v. Hoover, 2021 MT 276, ¶ 17, 406 Mont. 132, 497 P.3d 598. 

Oliver cites no authority and makes no argument how a violation of § 46-16-503(2), MCA, 

and the related common law rule amounts to a violation of the constitutional right to 

confrontation. We will not “conduct legal research on behalf of a party” or “develop legal 

analysis that might support a party’s position.” State v. Cybulski, 2009 MT 70, ¶ 13, 

349 Mont. 429, 204 P.3d 7. As Oliver’s claimed error fails to implicate his fundamental 

constitutional rights, we decline to invoke plain error review. 

¶43 4. Did Oliver receive ineffective assistance of counsel when counsel did not object 

to the repeated use of the recorded jail calls at trial and encouraged the jury during 

closing arguments to relisten to the recorded jail calls during jury deliberations?

¶44 Oliver argues his counsel provided him with ineffective assistance when his counsel 

failed to object to the repeated playing of the jailhouse phone calls during trial and 

encouraged the jury to relisten to the recordings during deliberations.

¶45 Criminal defendants have a right to effective assistance of counsel. See U.S. Const. 

amend. VI; Mont. Const. art. II, § 24; Weber, ¶ 21. To show ineffective assistance of 

counsel, a defendant must prove counsel’s performance was deficient and counsel’s 

deficient performance prejudiced the defense. State v. Polak, 2021 MT 307, ¶ 23, 

406 Mont. 421, 499 P.3d 565. We will only review allegations of ineffective assistance of 

counsel on direct appeal when the claim is “based on facts of record in the underlying 

case.” State v. White, 2001 MT 149, ¶ 12, 306 Mont. 58, 30 P.3d 340. When “the 

allegations of ineffective assistance of counsel cannot be documented from the record in 

the underlying case, those claims must be raised by petition for post-conviction relief.” 
23

White, ¶ 12. To review a claim of ineffective assistance of counsel on direct appeal we 

look to see whether the record “fully explain[s] why counsel took the particular course of 

action” and we “will not speculate on counsel’s alleged errors.” White, ¶¶ 13, 20. “[A] 

silent record cannot rebut the strong presumption that counsel’s conduct falls within the 

wide range of reasonable professional assistance.” White, ¶ 13. 

¶46 Here it is not clear from the record whether counsel’s failure to object to the repeated 

playing of the recordings was the result of not understanding she could preclude the 

repeated playing of the calls under § 46-16-503(2), MCA, and the applicable common law 

rule, or a strategic decision. The record is insufficient to review this claim of ineffective 

assistance of counsel on direct appeal.

¶47 5. Is Oliver entitled to a new trial based on the cumulative error doctrine?

¶48 “The cumulative error doctrine mandates reversal of a conviction where numerous 

errors, when taken together, have prejudiced a defendant’s rights to a fair trial.” State v. 

Hardman, 2012 MT 70, ¶ 35, 364 Mont. 361, 276 P.3d 839. We found an abuse of 

discretion in only one of the issues Oliver raised on appeal and determined the error was 

harmless. The other assignments of error raised by Oliver were either not an abuse of 

discretion or were not reviewable on appeal. Under these circumstances cumulative error 

does not require reversal of Oliver’s convictions. 

¶49 6. Did the District Court err in imposing jury and other costs on Oliver without 

first undertaking an ability to pay inquiry? 

¶50 Oliver argues the District Court failed to inquire into his ability to pay fees and costs 

and the financial assessment imposed in the judgment must be stricken and the case
24

remanded for the District Court to conduct an ability to pay inquiry before imposing costs 

on him. 

¶51 Oliver requested the District Court to waive “all of the fines and fees, upon inquiry 

of his financial situation right now.” The District Court did not inquire into Oliver’s 

financial situation. As part of the judgment, the District Court imposed the following fees: 

(1) Victim Witness Admin Fee of $4 pursuant to § 46-18-236(7)(b), MCA; (2) Victim 

Witness Surcharge Fee of $196 pursuant to § 46-18-236(1)(c), MCA; (3) Technology 

Surcharge of $10 pursuant to § 3-1-317, MCA; (4) Prosecution Fee of $100 pursuant to 

§ 46-18-232, MCA; (5) Felony and Misdemeanor Surcharges of $75 pursuant to 

§ 46-18-236, MCA; (6) Jury Costs of $2099.03 pursuant to § 46-18-232, MCA; and (7) PreSentence Investigation Fee of $50 pursuant to § 46-18-111(3), MCA. This totaled

$2534.03 in costs and fees. 

¶52 Each of the statutes authorizing the fees and costs imposed on Oliver allow for the 

waiver of the cost or fee due to financial hardship in some form. See § 3-1-317(2), MCA 

(providing a “court may waive” the surcharge if it determines the defendant “is unable to 

pay the surcharge”); § 46-18-111(3), MCA (providing the court may waive the fee, if it 

“determines that the defendant is not able to pay the fee within a reasonable time”); 

§ 46-18-232(2), MCA (providing a “court may not sentence a defendant to pay costs unless 

the defendant is or will be able to pay them” and requiring a court to consider “the financial 

resources of the defendant, the future ability of the defendant to pay costs; and the nature 

of the burden that payment of costs will impose”); § 46-18-236(2), MCA (providing a court 
25

shall waive the fee if it has determined “under 46-18-231 and 46-18-232 that the person is 

not able to pay the fine and costs or that the person is unable to pay within a reasonable 

time”). In interpreting § 46-18-232(2), MCA, this Court has recognized trial courts must 

“scrupulously and meticulously determin[e] the defendant’s ability to pay” jury costs to 

avoid undermining a defendant’s right to a jury trial. Moore, ¶ 18. 

¶53 The State concedes the District Court did not consider Oliver’s ability to pay jury 

costs before imposing them on him under § 46-18-232(2), MCA. The State is silent on the 

other fees Oliver challenges. As the State concedes the court failed to consider Oliver’s 

ability to pay jury costs pursuant to the standard of § 46-18-232(2), MCA, the other costs 

imposed on him must also be reversed and remanded for the court to complete this analysis. 

Although the different statutes authorizing the imposition of the various fees and costs have 

slightly different standards for when the fee may be waived, the District Court’s review of 

Oliver’s ability to pay under § 46-18-232(2), MCA, will necessarily inform its decision to 

impose the other costs and fees under the other statutes. We strike all financial assessments 

from the judgment and remand the case to the District Court to conduct the appropriate 

analysis of Oliver’s ability to pay before imposing costs and fees. 

CONCLUSION

¶54 Oliver’s convictions are affirmed. The cost assessment in the judgment is stricken

and the case is remanded for the District Court to undertake the appropriate ability to pay 

inquiry. 

/S/ INGRID GUSTAFSON
26

We concur: 

/S/ MIKE McGRATH

/S/ JAMES JEREMIAH SHEA

/S/ DIRK M. SANDEFUR

/S/ JIM RICE