No. 92-342 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993

THE STATE OF MONTANA, Plaintiff and Respondent,

v. WILLIAM JOHN RODGERS, Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District, In and for the County of Sanders, TheHonorable C. B. McNeil, Judgepresiding.

COUNSEL OF RECORD: For Appellant: William F. Hooks, Appellate Defender Office, Helena,Montana For Respondent: Hon. Marc Racicot, Attorney General, Patricia J. Jordan,Assistant Attorney General, Helena, Montana; Robert Slomski, Sanders County Attorney, Thompson Falls, Montana

Submitted on Briefs: November 24, 1992 Decided: March 30, 1993 Filed: 

### N!ApL 

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## fi7993Justice Terry N, Trieweiler delivered the opinion of the Court. Defendant William JohnRodgers was convictedby a jury in the Twentieth Judicial District Court, Sanders County, Montana, of felony theft for the unauthorized taking of property valued 

### in

excess of $300 from Burtch Construction with the intent to permanently deprive the owner of hisproperty. Rodgers appealshis conviction. We affim. There are four issues on appeal: 1. Was there sufficient evidence presented at trial to support a finding that Burtch owned the property that Rodgers was charged with stealing? 2. Is the issue of prosecutorial misconduct barred by the contemporaneous objection rule? 3. Was there an illegal search of the defendant's home? 4. Was defendant denied his constitutional right to effective assistance of counsel? In February 1990, Richard L. Burtch, owner and operator of BurtchConstruction, andWilliamJ. Rodgersorally agreed tobecome partners in 

### a secondhand store business. The two men planned to construct a new building to house 

### the store and to locate it on Burtch Construction property. As his contribution to the partnership, Burtch furnished the land, construction materials, laborers,andmoney for the secondhand store building (referredto

as Shop 2). Rodgers supplied his labor. From February 1990 to April 1991, Rodgers worked on the construction of Shop 2. With Burtch's permission, Rodgers used

### tools and suppliesownedby BurtchConstructiontobuild the store. Rodgers had a key and unlimited access to tbe Burtch Construction property and tools. In late April 1991, 

### Rodgers stopped working on the building and quit the partnership. The day after Rodgers withdrew, Burtch and his foreman went to Shop 2 

### and noticed there were numerous tools missing. Burtch contacted the sanders County Sheriff's Office to report the missing items. In accordance with the sheriff s instructions, the Burtchs

## ' began to develop a list of missing items. In lateAugust 1991,Burtchts daughter,Tina,went toRodgers' home to inquire about a green washer and dryer set that she had been promised by her parents and that had been stored in Shop 2. 

### ~uring her visit, Tina observed a green washer and dryer set at Rodgerss residence. When asked if he knew where her parentss washer anddryer setwas,Rodgerstold Tina thathehad disposed of it at a junk pile on Burtch Constructionproperty. Tina and her father could not find the set in the junkpile. In September 1991, Tina reported themissing washer and dryer to the sheriff's office. Based on Tina's information, Deputy Sheriff Perry Mock determined he had probable cause to search Rodgerst residence. The sheriff was unable to obtain 

### a search warrant at this time because the county attorneywas on vacation. Therefore, the sheriff asked Rodgers directly for permission to searchhis house. Rodgers gave his consent to DeputyMock.In his search of Rodgersl house, Deputy Mock discovered several items which he was able to identify as property which belonged to Burtch. When Deputy Mock opened a cabinet drawer and found a staple gun with the name ltBurtchll stamped on its surface, he arrested Rodgers for theft. Deputy Mock enlisted the assistance of Burtch and his family in an effort to identifymore of theirproperty. The Burtch family and one Burtch Construction employee arrived to help. DeputyMock advised the group not to remove any items, but to find items allegedly belonging to them for the deputy to photograph and catalog. The search team moved to the residence of Lloyd Mikkelson, Rodgerslbrother-in-law. Mikkelson gave the group permission to searchhis woodshed. Deputy Mock found several tools in the shed with the name "Burtchtl engraved on them. In total, Deputy Mock seized two pickup loads of tools, materials, and appliances from the Rodgers and Mikkelson properties. The value of the two loads

was in excess of $300. OnNovember 21, 1991,Rodgers was charged by information with the crime of felony theft in violation of 5 45-6-301(1) (a),MCA. At trial,Burtch, his family,BurtchConstructionemployees,and an appliance repairman identified many of the 60 exhibits introduced

asbelonging to Burtch. When Burtch could not positively identify

a tool or material as his own,he emphasized that he knew he "had

one like it,"but that it was nowmissing.Rodgers' son,KeithRodgers,testified on behalf ofhis father at trial. During the State's closing argument, the Prosecutor characterized Keith's testimony as a deliberate lie. The Prosecutor also told the jurors that defendant Rodgers lied to their faces. Defense counsel for Rodgers did not object to the Prosecutor's commentsduring closing arguments. On March 3, 1992, the jury found Rodgers guilty of felony theft. I. Was there sufficient evidencepresented at trial to support a finding that Burtch owned the property that Rodgers was charged with stealing? On appeal,Rodgers asserts the State failed toprove that he possessed property ownedby Burtchwith a value greater than $300, and therefore, the State failed to prove a necessary statutory element for a felony theft charge, pursuant to 5 45-6-301(6) (b)

## , MCA. Rodgers contends thatBurtch's failuretopositively identify

some items was evidence that Burtch was not the owner of those items. We disagree and conclude that therewas sufficientevidence presented at trial to support a finding that Burtch was the owner of stolenproperty valued in excess of $300. Burtchwas asked if the washer and dryer exhibit at trial was his washer and dryer. Burtch was unable to recall the brand name of his washer and dryer and to say with certainty that the washer and dryer set presented at trial was his; however, he testified that he owned a washer and dryer setworth $200 and that he stored it in Shop 2 on his property prior to the time it was discoveredmissing. An appliancerepairman testified that he hadworked on a washer and dryer set that was owned by Burtch and located in Shop 2. The repairman testified that the serial numbers of the washer and dryer exhibit at trialmatched the serial numbers of thewasher and dryer on his work order. At trial, ten tools were introduced into evidence without objection. Each of the ten tools was engraved with the name I1Burtch" on its surface and was positively identified as the property of the Burtchs' or Burtch Construction. These tools included a ratchet and torque wrench, staple gun, wheel barrow, crescent wrench, radio, screw driver, nipper or nibbler, crimping tool, tin snipers,and a 10-inch sawblade. The combinedvalue of these tools was $175. We conclude there is sufficient evidence in the record to establish thatBurtch owned thewasher anddryer and the ten tools. Together, thewasher and dryer setvalued at $200and the ten tools valued at $175 were worth $375. Therefore, we conclude Burtch owned stolen property sufficient to satisfy the $300 statutory minimum for 

### a felony theft charge. We need not discuss any of the other allegedly stolen items for purposes of affirming Rodgersl conviction. 11. Is the issue of prosecutorial misconduct barred by the contemporaneousobjection rule? Rodgers asserts that the State engaged in prosecutorial misconduct when the Prosecutor called the defendant and his son 6

### liars during closing argument, argued facts in closing that were not in evidence, and mischaracterized Rodgers' testimony to infer Rodgersfguilt. Defense counsel forRodgers did not object to the Prosecutor's commentsduring closing argument. Despitethe failure to raise any objections, Rodgers asserts our Court should take notice of the Prosecutorfsimproper argument on appeal. Rodgers asserts such prosecutorial misconduct denied him his right to a fair trial as guaranteed by the Sixth Amendment of the United States Constitution and ~rticle 11, 

### Section 24, of the Montana Constitution. This Court has held that it is highly improper for an attorney, in closing argument, to characterize the testimony of a witness as lies, or to identify the party or a witness as a liar. State

### v.Musgrove 

### (1978)

## , 178 Mont. 162, 172, 582 P.2d 

### 1246, 1253. We restate our strong disapproval of such conduct. However, the contemporaneous objection rule at 5 

### 46-20-104, MCA, precludes this court from considering an alleged error unless a timely objection

was made at trial or unless certain statutory criteria are met. According to Section 46-20-104(2), MCA: Upon appeal from a judgment, the court may review the verdict ordecisionand any alleged errorobjected to which involves the merits or necessarily affects the judgement. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in 5 

### 46-20-701(2), MCA. Section 5 

### 46-20-701(2), MCA,provides: 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 theerror 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 retroactive in its application; (b) theprosecutor,the judge,ora lawenforcement agency suppressed evidence from the defendant or his attorney that prevented the claim frombeing 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. [~mphasis added.] We conclude that Rodgers does not meet any of the three requirements listed in § 46-20-701(2) (a) 

## -(c)

### ,MCA. BecauseRodgers has not met any of these requirements,his failure to object at trial constitutes a waiver of his constitutional claim. Section 46-20-104,MCA. Our decision in the present case is supported by the United States Supreme Court decision in Estelle

### v. HG1liarn.s (1976)

### , 425 U.S

# . 501, 96 S. Ct. 1691, 48 

### L. Ed. 2d 126. InEstelle, an accused stood trial before a jury while wearing a prison uniform. The accused made no objection during the trial regarding his having to stand trial in the prison uniform; consequently, the objection was not allowed tobe raised onappeal. InEstelle, theUnited States Supreme Court explainedthe reasoningbehind the rule that failureto raise

an objection at trial constitutes waiver of one's constitutional claim. "[Ilf the defendant has an objection, there is an obligation to call thematter to the court's attentionso the trialjudgewill have an opportunityto remedythe situation." Estelle, 425 U.S. at 508, n.3. We have addressed the issue of a defendant raising objections for the first time on appeal in a previous Montana case. SeeStatev. Cain (1986), 220 Mont. 509, 717 p.2d 15. In Cain, we stated: "The District Court was never given an opportunity to rule on admission of the statementsor to correct itself if admissionwas notproper. We will not put the trial court in error where it has not been given such a chance.'I Cain, 717 P. 2d at 19 (citingStatev. Weinberger

(1983),204 Mont. 278, 304, 665 P.2d 202, 216). Rodgersurges this Court to exercise the discretionary powers of the "plain error doctrineu to prevent a manifest injustice in this case. We have stated that the power of discretionary review is only to be used in exceptional cases. Statev. Voegek (1990), 243 Mont. 222, 224, 793 P.2d 832, 834. We have refused to invoke theplain error doctrine in previous

cases in Montana when objections to a prosecutor's closing arguments were made for the first time on appeal. SeeStatev.Laverdure

(lggo), 241 Mont. 135, 785 P.2d 718;Statev.Smith (l988), 232 Mont. 156, 755 P.2d 569;Statev.Pease (1986), 222 Mont. 455, 724 P.2d 153. Although we do not foreclose the option to invoke the plain error doctrine in a future case involving prosecutorial misconduct, we decline to invoke the doctrine under the circumstances of this

case.111. Was there an illegal search of the defendant'shome? Rodgers contends that the search of his homewas illegal. He contends that the voluntary consent form which he signed only granted permission for DeputyMock to searchhis home, and that it did not extend to the Burtch family and their employees who assisted Deputy Mock in the search. Rodgers asserts that the search violated his Fourth Amendment right to be free from unreasonable searches and that the search violated his right of privacy underArticle 11, Section 10,of theMontana Constitution. Wehold that the search

### of Rodgers' homewas legal andwas not in violation of either constitutional provision. Although the consent form provides that Deputy Mock was authorized to search Rodgers' premises, it does not prohibit Deputy Mock, either expressly or by implication, from requesting assistance in the search. We conclude thatwhen Rodgers gave consent to Deputy Mock to search his home, Rodgers waived any reasonable expectation of privacy in his home, including any limitation on the authority of Deputy Mock to request assistance in the search of Rodgers' home.

See State v. Lerch (Or. Ct. App. 1983), 666 P.2d 840, 845, affld, (Or. 1984) 677 P.2d 678. In a previous Montana case,Statev.

### Yoss (1965), 146 Mont. 508, 409 P.2d 452, the owners of burglarized property accompanied and assisted the police in the search for their possessions, despite the fact that they were not listed on defendant's voluntary consentform as parties who were given permission to search his premises. We held that the presence of the owners did not make the search illegal in the absence of a showing of any prejudice to the defendant. We explained in Yoss: We findno merit todefendant's contention that the fact

[the owners]Mr. andMrs. Maupinaccompaniedthe officers at the time of the search, but were not listed on the voluntary statement givenby him[,] wouldmake thesearch illegal. There is no showing of any prejudice arising from their being present. Yoss, 409 P.2d at 455. Similarly, there was no prejudice to Rodgers when the Burtch family and a Burtch Construction employee assisted Deputy Mock in identifying stolen items on Rodgers' premises. We conclude that the search was not illegal. IV. Was defendant denied his constitutional right to effective assistance of counsel? Based on his assertion that the search of his home was illegal, Rodgers contends that his defense counsel's failure to

move to suppress the evidence seized from the search denied him effective assistance of counsel. We conclude that because the searchwas legal,defense counsel's failure to object to the items seized at the search is of no consequence. When evaluatinga claim of ineffective assistance of counsel, this Court applies the two-pronged test set forth in Strickland 

### v. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80L. Ed. 2d 674.First, counsel's performance must be deficient. To assess deficient performance, this Court employs the "'reasonably effective assistance' test of whether a defendant's counsel actedwithin the range of competence demanded of attorneys in criminal cases.I' Second, counsel's deficient performancemust have so prejudiced the defendant as to deprive the defendant of a fair trial. The standard for evaluatingprejudice iswhether a reasonable probability exists that but for counsel's deficient performance, the trial's outcome would have been different. [Citations omitted.] Statev.Coates (1990), 241 Mont. 331, 337, 786 p.2d 1182, 1185. We hold that the second part of the test set forth inStrickland is not satisfied in this case. If defense counsel had moved to suppress the evidence seized from the search of Rodgers' home (as Rodgers suggestshe shouldhave), themotion would nothave changed the outcome of the case. Because the searchwas legal, the fruits of the search would have been allowed into evidence over the objection of defense counsel, and the result would have been the

same. Rodgers has not shown that he was prejudiced by his defense counsel's failure to object to the evidence seizedduring the legal search. Therefore, we conclude that he was not denied effective assistance of counsel. The judgment of the District Court is affirmed.Weconcur: