DA 13-0047

IN THE SUPREME COURT OF THE STATE OF MONTANA

2015 MT 72N

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

ROY VINCENT ADAMS,

 Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DC 11-576

Honorable Edward P. McLean, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jennifer A. Hurley, Hurley Kujawa PLLC, Butte, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General; Micheal S. Wellenstein, 

Assistant Attorney General, Helena, Montana

Kirsten H. Pabst, Missoula County Attorney; Jordan Kilby, Deputy 

County Attorney, Missoula, Montana

Submitted on Briefs: January 21, 2015

 Decided: March 3, 2015

Filed:

__________________________________________

Clerk

March 3 2015

Case Number: DA 13-0047
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Justice Beth Baker delivered the Opinion of the Court. 

¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating 

Rules, this case is decided by memorandum opinion and shall not be cited and does not 

serve as precedent. Its case title, cause number, and disposition shall be included in this 

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana 

Reports. 

¶2 In October 2012, a jury found Roy Vincent Adams guilty of driving under the 

influence and resisting arrest. After entry of judgment, Adams’s counsel filed a motion 

to withdraw pursuant to § 46-8-103(2), MCA, and Anders v. California, 386 U.S. 738, 87 

S. Ct. 1396 (1967). After conducting a preliminary examination of the record, we

concluded that Adams “may have nonfrivolous issues to raise on appeal, including 

whether the State improperly commented on his right to silence.” Thus, Adams now 

appeals on the grounds that, at trial, the State improperly introduced evidence of his 

silence toward police on the night of his arrest. The determinative issue in this appeal is

whether this Court should review Adams’s claims for plain error. Because we conclude 

that the claims do not qualify for plain error review, we affirm Adams’s convictions.

¶3 The conduct for which Adams was convicted occurred around 1:30 a.m. on 

December 4, 2011. Missoula Police Department officers Nick Walters, Sean Manraksa, 

and Jeff Curtis encountered Adams when Adams’s truck drove near Officer Curtis’s 

parked patrol car before spinning out and coming to a rest facing eastward in a 

westbound lane. Officer Walters approached Adams’s truck and Adams stepped out. 
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Adams claims that he told Officer Walters that he had just been assaulted and robbed. 

Officer Manraksa approached seconds later and smelled alcohol on Adams’s breath. 

Adams was agitated and tried to walk away from the officers. The officers eventually 

subdued and arrested him. A blood test conducted later that night showed that Adams 

had a blood alcohol concentration of 0.18. 

¶4 The State charged Adams with assault, resisting arrest, reckless driving, and 

driving under the influence. Before trial, Adams notified the State of his intent to present 

the affirmative defense of compulsion to the driving under the influence charge. Adams 

also submitted a proposed jury instruction on compulsion that the District Court accepted. 

During the jury selection process, Adams’s counsel asked prospective jurors whether they 

believed it was okay for a person to break the law to avoid physical harm. Adams’s 

counsel also asked a potential juror who knew Officer Manraksa whether he could be 

fair, considering that there was a strong possibility that Officer Manraksa’s testimony 

was going to conflict with Adams’s anticipated testimony.

¶5 In opening statements, the State informed the jury of Adams’s intent to present a 

compulsion defense. The State told the jury, “We don’t know what you’re going to hear 

about that compulsion defense. But, what you will hear from the officers is that, at no 

time[ ] did Mr. Adams say—this is why I’m driving, or this person is after me, or 

someone assaulted me, and I had to drive.” In opening statements, Adams’s counsel 

explained that Adams “had to drive to get away from three men at the Lucky Strike 

casino[ ] who attacked him, [and] who were after his money . . . .” Adams’s counsel 
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explained that Adams pulled up to the patrol vehicle to tell the officers of his distress and 

that Adams told Officer Walters what was going on when Adams first stepped out of his 

truck.

¶6 In its case in chief, the State put on testimony from officers Manraksa and Curtis, 

as well as other officers who encountered Adams on the night of his arrest. Officer 

Walters was no longer with the Missoula Police Department and was not available to 

testify. All of the officers who did testify explained that Adams never mentioned that he 

was fleeing a violent encounter. Defense counsel did not object to any of the State’s 

arguments or evidence regarding Adams’s failure to tell the officers about the incident at 

the casino. After the State rested, Adams testified in his own defense, explaining that he 

drove that night only to obtain assistance following a theft and assault. He explained that 

he told Officer Walters what was going on but then gave up once he realized that the 

officers would not believe him.

¶7 On appeal, Adams presents two arguments that admitting evidence of his silence 

toward the officers was improper. First, he argues that the evidence should have been 

excluded under M. R. Evid. 403 because the danger of unfair prejudice substantially 

outweighed the probative value of the evidence. Second, Adams argues that the evidence

violated his constitutional rights to due process and protection from self-incrimination as 

guaranteed by Article II, Sections 17 and 25 of the Montana Constitution.

¶8 To receive appellate review on the merits, a party generally must raise an 

objection on the appealed issue with the trial court. State v. Robertson, 2014 MT 279, 
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¶ 32, 376 Mont. 471, 336 P.3d 367. This rule incentivizes correcting errors at the earliest 

opportunity and prevents this Court from holding a district court in error on an issue it 

never had the opportunity to examine. State v. West, 2008 MT 338, ¶¶ 16-17, 346 Mont. 

244, 194 P.3d 683. Although sparingly used, we nonetheless retain our common law 

authority to conduct plain error review of unpreserved issues. Robertson, ¶ 32. We 

employ plain error review if the appellant “firmly convinces” the Court that (1) “the 

claimed error implicates a fundamental right,” and (2) “the claimed error would result in 

a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness 

of the trial or proceedings, or compromise the integrity of the judicial process.” State v. 

Torres, 2013 MT 101, ¶ 37, 369 Mont. 516, 299 P.3d 804 (citations omitted).

¶9 Adams’s defense to the driving while intoxicated charge rested on his theory of

compulsion. A compulsion defense requires that a defendant show:

(1) he was compelled to perform the offensive conduct (2) by the threat or 

menace (3) of the imminent infliction (4) of death or serious bodily harm, 

and that (5) he believed that death or serious bodily harm would be inflicted 

upon him if he did not perform such conduct, and (6) his belief was 

reasonable.

State v. Owens, 182 Mont. 338, 347, 597 P.2d 72, 77 (1979) (emphasis removed). While 

perhaps enough to get to a jury, Adams’s compulsion defense was not strong. It centered 

on Adams’s story that he was grabbed and thrown out of a bar by three men who, before 

going back inside, told Adams that they would be back soon and that police were on the 

way. Adams, realizing that he left two hundred dollars at the bar, then drove toward his 

sister’s house to obtain assistance. This theory was unlikely to convince a jury that 
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Adams was compelled to drive while intoxicated by the threat of the imminent infliction 

of serious bodily injury if he did not do so. We are not convinced that, by attacking 

Adams’s compulsion defense through his failure to tell the officers about his encounter

on the night in question, the State caused a miscarriage of justice.

¶10 Further, the integrity of the judicial process and principles of fairness allow the 

State to rebut an affirmative defense of compulsion. While we draw no conclusions 

about the propriety of the State’s presentation of this evidence in its case in chief or 

stylization of this evidence as substantive rather than for impeachment, we note that the 

evidence had some impeachment value. Moreover, at multiple points throughout the 

trial, Adams had the opportunity to argue for an exclusion of this evidence or for a 

limiting instruction. Thus, we are not firmly convinced that the introduction of the

evidence calls into question the fundamental fairness or integrity of Adams’s trial. 

¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of 

our Internal Operating Rules, which provides for noncitable memorandum opinions. 

Although our preliminary review determined that the issues Adams raises on appeal are 

not frivolous, we are convinced by further review of the record and the parties’ 

arguments that Adams has not met the requirements for plain error review. Accordingly, 

we decline to review the merits of Adams’s claims. We affirm Adams’s convictions.

/S/ BETH BAKER
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We concur: 

/S/ LAURIE McKINNON

/S/ MICHAEL E WHEAT

/S/ JAMES JEREMIAH SHEA

/S/ JIM RICE