No. 89-461 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondent, 

JAMES AMSK, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Sixth Judicial District, 

In and for the County of Park, 

The Honorable Byron Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Larry Jent, Bozeman, Montana 

For Respondent: 

I - Honorable Marc Racicot, Attorney General, Helena, 

cs Montana 

0, Patti Powell, James Yellowtail, Assistant Attorneys r -? 

Y -i General, Helena, Montana -- William Nels Swandal, Park County Attorney, 

I: i - Livingston, Montana 

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..- .. Submitted on Briefs: May 10, 1990 .- - . . 

L 3 - -. Decided: May 25, 1990 

Filed: 

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: Clerk 
Justice Diane G. Barz delivered the Opinion of the Court. 

James Amsk appeals from a jury verdict entered in the District 

Court of the Sixth Judicial District, Park County, convicting him 

of three counts of felony criminal sale of dangerous drugs in 

violation of 3 45-9-101, MCA. Defendant was sentenced to seven 

years with five suspended on each count with the sentences to be 

served concurrently. The District Court fined defendant $3,000 and 

designated him a non-dangerous offender. We affirm. 

Defendant was charged by information with sales of marijuana 

to a police informant on November 11, 12 and 14, 1988. Defendant 

did not testify trial. Defendant's sole citation error 

concerns the following instruction given by the District Court: 

The law does not compel a defendant in a 

criminal case to take the witness stand to 

testify, and no presumption of guilt may be 

raised, and no inference of any kind may be 

found, from the failure of a defendant to 

testify. 

The law never imposes upon a defendant in a 

criminal case the burden or duty of calling 

any witness or producing any evidence. 

A defendant who wishes to testify, however, is 

a competent witness; and the defendant's 

testimony is to be judged in the same way as 

that of any other witness. 

The State offered this instruction. The record reflects 

objection by counsel for the defense nor did the defense offer an 

alternative instruction. Defendant argues that this instruction 

improperly focused the attention of the jury on his failure to 

testify in violation of his federal and state constitutional 
rights. He further asserts that giving such an instruction in the 

particular circumstances of this case was plain error. 

Section 46-20-104(2), MCA, provides: 

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 timely objection during trial 

constitutes a waiver of the objection except 

as provided in 46-20-701(2). 

That section reads as follows: 

No claim alleging an error affecting 

jurisdictional or constitutional rights may be 

noticed on appeal, if the alleged error was 

not objected to as provided in 46-20-104, 

unless the defendant establishes that the 

error was prejudicial as to his guilt or 

punishment and that: 

(a) the right asserted in the claim did not 

exist at the time of the trial and has been 

determined to be retroactive in its 

application; 

(b) the prosecutor, the judge, or a law 

enforcement agency suppressed evidence from 

the defendant or his attorney that prevented 

the claim from being raised and disposed of; 

or 

(c) material and controlling facts upon which 

the claim is predicated were not known to the 

defendant or his attorney and could not have 

been ascertained by the exercise of reasonable 

diligence. 

Section 46-20-701(2), MCA. Defendant's allegation of error clearly 

does not fall within any of the three exceptions of 5 46-20- 

701(2), MCA. The only facts pertinent to his contention of error 

are his decision not to testify and the giving of the instruction 

by the District Court. Both facts were known to defendant and 

could not have been concealed from him by the State, the court or 
law enforcement officials. 

Notwithstanding the above provisions, we have previously 

acknowledged that our obligation to preserve the substantial rights 

of criminal defendants may permit us to overlook the lack of a 

timely objection. State v. Wilkins (1987), 229 Mont. 78, 80-81, 

746 P.2d 588, 589. We invoke our power of discretionary review 

sparingly and only in the presence of plain error. Wilkins, 746 

P.2d at 589. The court orally assured Wilkins of his right to 

testify at trial and asked him several times if he waived such 

right. Wilkins, 746 P.2d at 589. In that case, this Court found 

the District Court's repeated questioning of the defendant 

constituted plain error requiring reversal of the conviction. 

Wilkins, 746 P.2d at 590. Although the District Court did not 

intend to comment on defendant's failure to testify, the effect of 

the exchange between the court and the defendant was to focus the 

attention of the jury on the lack of defendant's testimony. 

Wilkins, 746 P.2d at 590. 

In the instant case, the court advised the jury in the first 

two paragraphs of its instruction that the defendant had a right 

not to testify and that his failure to testify could not be held 

against him in any way. This instruction would not have been 

prejudicial if requested by the defendant and was not rendered 

prejudicial merely because the State requested it. We find no 

error in the giving of such an instruction. The third paragraph 

of the instruction set forth the standard to be used by a jury in 

evaluating the credibility of a testifying defendant. This part 
of the instruction should not be given when the defendant declines 

to testify. However, in the case at hand such error was harmless. 

Affirmed. 

We concur: / 

Chief Justice 

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