author: JUSTICE HUNT JUSTICE LEAPHART

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TAREQUE AZIZ AHMED, Defendant and Appellant.
    No. 95-249.
    Submitted on Briefs March 14, 1996.
    Decided August 26, 1996.
    53 St.Rep. 804.
    278 Mont. 200.
    924 P.2d 679.

      For Appellant: Karl P. Seel, Bozeman; Steven M. Edwards and John Houston Pope, Davis, Scott, Weber & Edwards, New York, New York.
    For Respondent: Mike Salvagni, Gallatin County Attorney, Marty Lamhert, Deputy Gallatin County Attorney, Bozeman; Joseph P. Mazurek, Attorney General, Micheál S. Wellenstein, Assistant Attorney General, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

Tareque Aziz Ahmed (Ahmed) appeals the order of the Eighteenth Judicial District Court, Gallatin County, convicting him of one count of aggravated kidnapping and one count of felony assault. We affirm.

ISSUES

Ahmed raises numerous issues on appeal. We hold the following to be dispositive:

1. Was Ahmed denied his right to a fair trial due to the actual or apparent bias of the District Court?

2. Were Ahmed’s convictions for aggravated kidnapping and felony assault supported by substantial credible evidence?

3. Did the District Court abuse its discretion by considering evidence of flight?

4. Did the District Court abuse its discretion by allowing testimony regarding a telephone conversation between Ahmed’s New York attorney and a Gallatin County deputy sheriff?

FACTS

There are two versions of the events which gave rise to this case: the victim’s, which "the District Court largely found credible, and Ahmed’s, which the District Court largely disbelieved.

The victim, J.F., and Ahmed were both students at Montana State University in Bozeman when they became romantically involved in the spring of 1989. They had a stormy, off-again, on-again relationship due at least in part to Ahmed’s admitted jealousy and possessiveness. J.F. testified that his jealous behavior alienated several of her friends. She further testified that Ahmed had threatened suicide if she did not remain with him; that he had attempted to fight with a male friend whom she had dated; and that he followed her to work on at least one occasion. Ahmed denied that any of these specific even! s occurred. In June 1990, Ahmed purchased a nine-millimeter handgun. On at least one occasion, according to J.F., Ahmed threatened to kill her and himself with the gun. On at least two occasions, J.F. returned to her apartment to find Ahmed, uninvited, inside waiting for her.

In August 1990, J.F. went to the MSU campus police to report that Ahmed had followed her to work and was frightening her. She then went to the Bozeman police department and asked that someone speak to Ahmed about his behavior and direct him to leave her alone. That same day, she went to the County Attorney's office to attempt to get a restraining order against him, but was informed that the law in effect at that time would not allow her to obtain one because she and Ahmed were neither married nor living together.

Two days later, a Bozeman police officer spoke to Ahmed about J.F. He advised Ahmed that J.F. no longer wanted to see him and that he should stop showing up at her apartment or attempting to contact her in any way. The officer found Ahmed to be very cooperative; Ahmed expressed surprise at J.F.’s actions in going to the police; promised not to contact her further; and informed the officer of his intention to leave Montana for California in the near future.

According to J.F., she returned to her apartment on September 3, 1990, to find Ahmed waiting for her inside with his puppy. He was armed with the nine millimeter handgun and a Bowie knife, and informed her that he was going to hold her in the apartment for three days. He hit her lightly on the face, held the knife to her neck, and then ordered her into the bedroom to have sex with him.

J.F. testified that she was very frightened and attempted to be nice to Ahmed to prevent him from hurting her. She testified that she tried to act like his girlfriend because she was afraid he would shoot her if she resisted. During the next two days, Ahmed kept J.F. in the house except for one trip to run errands. J.F. testified that the only stop she could remember from the trip was the drive through at the local Burger King, dining which he kept the gun on the seat between them. J.F. also periodically took the puppy out into the yard to go to the bathroom. She testified that she made no attempt to escape because she believed Ahmed would shoot her if she tried to run.

On September 5, 1990, Ahmed went to take a shower. J.F. then took the gun and knife and went directly to the Bozeman police department, where she reported the incident. Bozeman police were dispatched to her apartment, but Ahmed was gone. They also checked his apartment but could not find him. They then returned to J.F.’s apartment with J.F. so that she could gather some belongings before going to a friend’s house. At that time, J.F. discovered and gave to the police a plastic bag from a sporting goods store which contained a box of 9 mm. ammunition and a receipt from the store.

According to Ahmed’s testimony, he went to J.F.’s apartment on September 4,1990, to collect some belongings and say goodbye. They spent the day together, going to the grocery store, park, gas station, and Burger King, before returning to the apartment where they ordered pizza. Ahmed then spent the night on the couch. The next day, he took a shower. "When he finished, he discovered that J.F. was gone and he left as well. He testified that they did not have sexual relations. He further testified that he did not threaten her with the gun or knife, nor did he attempt to restrain her movements.

It is undisputed that on the evening of September 5,1990, Ahmed caught a ride with friends to Fargo, North Dakota. From there, he took a bus to New York City. Less than a month later, he learned that the Bozeman police were looking for him regarding accusations made by J.F. He hired a New York attorney to “look into” the situation, but made no attempt to contact the Bozeman police himself.

In December, 1992, having been unable to locate Ahmed, the Gallatin County Attorney’s office requested that the U.S. Attorney issue a federal unlawful flight warrant for Ahmed. On March 14, 1994, Ahmed was arrested by the FBI in New York City. He was brought back to Bozeman where, in a bench trial, he was tried and convicted of one count of aggravated kidnapping and one count of felony assault. Ahmed appeals. Other facts will be provided as necessary to address the issues raised.

STANDARD OF REVIEW

In an appeal of a criminal case, the evidence will be viewed in the light most favorable to the prosecution. State v. Martel (1995), 273 Mont. 143, 148, 902 P.2d 14, 17. When determining whether the evidence presented was sufficient to sustain the criminal conviction, we ask if, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Gould (1995), 273 Mont. 207, 221, 902 P.2d 532; State v. Ross (1995), 269 Mont. 347, 360, 889 P.2d 161, 169.

Our standard of review of a trial court’s discretionary rulings is whether the trial court abused its discretion. State v. Loh (1996), 275 Mont. 460, 466-67, 914 P.2d 592, 596 (citations omitted). Since the admissibility of evidence is a discretionary ruling, we also determine whether the District Court abused its discretion by admitting or refusing to admit disputed evidence. State v. Bristow (1994), 267 Mont. 170, 173, 882 P.2d 1041, 1043 (citations omitted). The standard of review of a district court’s conclusions of law is plenary, and we will review to determine whether those conclusions of law are correct. State v. Hansen (1995), 273 Mont. 321, 323, 903 P.2d 194, 195 (citations omitted).

DISCUSSION

1. Was Ahmed denied his right to a fair trial due to the actual or apparent bias of the District Court?

Ahmed is a native of Bangladesh. He alleges that he was denied his right to a fair trial because the District Court was biased against him due to his race and culture. He alleges that this bias, while not overt, was manifested in several ways. First, he contends that the District Court improperly acted as the trier of fact at trial after having previously presided over Ahmed’s bail hearing. Second, he contends that the District Court excessively injected itself into the trial by questioning witnesses and terminating a given line of questioning. Third, he contends that the District Court demonstrated its bias by including an illegal condition of parole. Fourth, he contends that the District Court’s findings were not supported by substantial credible evidence, and that this itself was indicative of bias.

A. The District Court as trier of fact.

The same district court judge who presided over Ahmed’s bench trial also had presided over his earlier bail hearing. During the bail hearing, the District Court heard extensive evidence regarding Ahmed’s alleged flight from justice. The prosecutor presented this evidence in support of his argument that a high bail was necessary because of the chance that Ahmed would try to flee the jurisdiction again. The District Court agreed that Ahmed was a flight risk and set the bail in the amount requested by the prosecutor.

On appeal, Ahmed points out that whether he had in fact fled the jurisdiction was a seriously disputed question at trial. He contends the District Court improperly decided that issue at the bail hearing. Having allegedly decided this crucial issue previously, Ahmed contends that the District Court was not a truly impartial trier of fact at the trial.

Despite the bias he now alleges, however, at no time prior to this appeal did Ahmed object to having the same judge sit for both the bail hearing and the trial. Section 46-20-104, MCA, provides in part:

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).

Section 46-20-104(2), MCA. Section 46-20-701(2), MCA, referenced above, provides:

No claim alleging an error affecting jurisdictional or constitutional rights may be noticed on appeal, if the error was not objected to as provided in 46-20-104, unless the defendant [convicted person] establishes that the error was prejudicial 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 [convicted person] 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 [convicted person] or his attorney and could not have been ascertained by the exercise of reasonable diligence.

Section 46-20-701(2), MCA. None of the subsections of § 46-20-701(2), MCA, apply in this case. Yet despite the fact that Ahmed is foreclosed from raising this alleged error under the applicable plain error statute, he nevertheless argues that this Court should still notice it under the common law “plain error” doctrine.

The common law “plain error” doctrine is an exception to § 46-20-104, MCA, which allows this Court to remedy instances of manifest injustice which otherwise would not be addressed. State v. Arlington (1994), 265 Mont. 127, 152, 875 P.2d 307, 322. However, this Court will invoke the common law plain error doctrine sparingly, and only in exceptional cases where the failure to review the claimed error may 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. Finley (1996), [276 Mont. 126], 915 P.2d 208, 215.

Ahmed argues that the District Court improperly decided the issue of flight based on evidence previously presented at the bail hearing. He further argues that this pre-judging of a crucial issue indicated bias, which in turn indicated that Ahmed did not receive a fair and impartial trial. These circumstances, he argues, justify the invocation, of the common law plain error doctrine in this case. We disagree.

Ahmed frames this issue as if the evidence of flight were only presented at the bail hearing. In fact, the prosecutor presented the same evidence regarding flight at trial as he had at the bail hearing, without objection. The District Court properly considered all the evidence presented at trial in reaching its verdict. There is nothing in the record to indicate that it relied upon flight evidence presented at the bail hearing, as opposed to flight evidence presented at trial. Since the District Court’s findings were based on evidence properly admitted at trial, we decline to invoke the common law plain error doctrine.

B. The questioning of witnesses.

Ahmed argues that the District Court demonstrated bias against him by excessively questioning witnesses and by terminating a given line of questions. In particular, Ahmed assigns error to the District Court’s questioning of himself and a clerk from the sporting goods store. He also assigns error to the District Court’s curtailing of a certain line of questions pursued by the prosecution.

The District Court questioned Ahmed at trial regarding his immigration status after Ahmed had invoked his Fifth Amendment right not to incriminate himself and after defense counsel objected to the line of questioning. After trial, the District Court determined that it had erred in questioning Ahmed regarding his immigration status. It therefore sustained the defense’s objection and ordered the pertinent testimony stricken. Since this was a bench trial, the manner in which a jury might interpret such questions was not and is not an issue. Ahmed nevertheless contends that the mere asking of improper questions regarding his immigration status is evidence of the District Corut’s bias against him.

Racial prejudice or bias against a defendant is a heavy charge to make against a court. Such bias is, of course, antithetical to the fundamental proposition that all people are entitled to a fair trial by an impartial corut of law. Such a serious accusation must be backed by evidence which tends to show its validity, not simply by mere speculation which cannot be traced to a single fact in the record.

Although in this case the questions put to the defendant by the District Court were admittedly improper, there is no evidence that the District Court considered the stricken testimony when reaching its verdict. If a defendant’s objection is sustained, the offending testimony is stricken from the record, and the jury is instructed to disregard the evidence (in cases of jury trials), the error which was committed is presumed to be cured. State v. West (1992), 252 Mont. 83, 91, 826 P.2d 940, 945. Ahmed fails to offer any specific evidence of bias to rebut the presumption that the District Court adequately cured its error. Far from rebutting the presumption of cure, Ahmed asks this Court to presume bias from the mere posing of such questions. We refuse to do so. While the District Court admittedly erred in asking Ahmed about his immigration status, it properly cured its error by sustaining the defense’s objection and striking the offending testimony.

Ahmed also argues that the District Court improperly questioned a sporting goods store clerk regarding a receipt, found in J.F.’s apartment, which reflected the purchase of a box of 9 mm. bullets two days before the incident in question. He also argues that the District Court erred by curtailing a certain line of questioning being pursued by the prosecution.

However, Ahmed did not preserve either of these assertions of error by means of a contemporaneous objection as is required by § 46-20-104(2) and § 46-20-701(2), MCA. “This Court has made it clear that where a defendant does not object at trial to the remarks and conduct of the trial judge, the issue will not be considered upon appeal.” State v. Martin (1987), 226 Mont. 463, 467, 736 P.2d 477, 480 (citing State v. Lloyd (1984), 208 Mont. 195, 676 P.2d 229). Because these issues were not properly preserved for appeal, we decline to address them. C. The illegal condition of parole.

When sentencing Ahmed, the District Court ordered:

Should the defendant be paroled, under no circumstances may he be released to any state or territory of the United States. The defendant shall remain in custody at all times unless, having been paroled, he is deported.
Further, the defendant shall be ineligible for re-entry into the United States, and shall be subject to arrest and imposition of any time remaining on his sentence should he re-enter the United States or its territories.

Ahmed contends, and the State concedes, that this is an illegal condition of parole. It is beyond the jurisdiction of a district court to order anyone deported without due process or to absolutely bar re-entry into the United States. Boutilier v. INS (1967), 387 U.S. 118, 87 S.Ct. 1563, 18 L.Ed.2d 661; United States v. Castillo-Burgos (9th Cir. 1974), 501 F.2d 217 (cert, denied, 419 U.S. 1010, 95 S.Ct. 330, 42 L.Ed.2d 284). Ahmed further contends, however, that the imposition of an illegal condition of parole indicates the District Court’s inherent racial and cultural prejudice against him.

As stated above, such charges cannot be based on mere speculation or conjecture. Ahmed is admittedly not a citizen of this country. He is also, now, a convicted felon and dangerous offender. Under the circumstances, the District Court might well believe that justice and society would be best served by deporting Ahmed after he is paroled. The parole provision is illegal not because it is racist or biased, but because it does not take into consideration Ahmed’s right to procedural due process before deportation. Because it is illegal, we hold that the subject parole condition must be stricken. Inclusion of the illegal provision does not, however, indicate inherent judicial bias warranting reversal of Ahmed’s convictions.

D. The lack of evidence as indicative of bias.

Ahmed asserts that the District Court’s bias against him is also illustrated by the fact that it convicted him of felony charges which the evidence presented did not support. This is merely another way of saying that the evidence was insufficient to sustain the convictions. Therefore, we next turn our attention to the question of the sufficiency of the evidence.

2. Were Ahmed’s convictions for aggravated kidnapping and felony assault supported by substantial credible evidence?

Ahmed argues that his convictions for aggravated kidnapping and felony assault must be reversed because they are not supported by substantial credible evidence. Ahmed notes that, since only he and J.F. were present during the period when the offenses took place, the case essentially comes down to his word against hers. He argues that J.F.’s testimony was inherently incredible and uncorroborated and, as such, is insufficient to support the convictions.

Ahmed claims that J.F.’s testimony was inherently incredible because it was contradicted not only by Ahmed’s testimony, but also by her own prior statement made to the police after the events in question occurred. Ahmed farther argues that J.F.’s testimony was not corroborated by physical evidence such as bruises or scratches from when she claimed he had struck her and held a knife to her neck. In the face of these inconsistencies and lack of corroboration, Ahmed argues that the evidence presented was insufficient to convict him of the crimes with which he was charged.

As this Court stated in State v. Brogan (1993), 261 Mont. 79, 862 P.2d 19:

[wjhere the sufficiency of the evidence is at issue on appeal in a criminal bench trial, the standard of review is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Brogan, 862 P.2d at 24. Moreover, the credibility of witnesses and the weight to be given to their testimony are to be determined by the trier of fact, and disputed questions of fact and credibility will not be disturbed on appeal. Brogan, 862 P.2d at 24. See also State v. Santos (1995), 273 Mont. 125, 131, 902 P.2d 510, 514; State v. Moreno (1990), 241 Mont. 359, 361, 787 P.2d 334, 336. In the event that the evidence conflicts, it is within the province of the trier of fact to determine which will prevail. Santos, 902 P.2d at 514 (citing State v. Flack (1993), 260 Mont. 181, 860 P.2d 89).

In State v. Maxwell (1982), 198 Mont. 498, 647 P.2d 348, this Court held that prior inconsistent statements do not necessarily render a witness’s testimony inherently incredible. On the contrary:

[o]nly in those rare cases where the story told is so inherently improbable or is so nullified by material self-contradictions that no fair-minded person could believe it may we say that no firm foundation exists for the verdict based upon it.

Maxwell, 647 P.2d at 351 (quoting State v. Gaimos (1916), 53 Mont. 118, 126, 162 P. 596, 599). Further, the testimony of one witness is sufficient to establish a fact, Santos, 902 P.2d at 514, and the absence of corroboration alone is not sufficient reason to distrust the testimony of a complaining witness. State v. Higley (1980), 190 Mont. 412, 427, 621 P.2d 1043, 1052.

The District Court heard all the evidence presented as well as the testimony of both J.F. and Ahmed. It noted that J.F. had explained that her testimony differed, in part, because she could not remember some of the details she had reported to the police in her written statement. Noting that the trial took place almost four years after the events in question, the District Court found her to be candid in admitting when she simply could not remember certain details. The District Court included in its findings all the contradictions of which Ahmed complains, yet it still found J.F.’s testimony to be more credible than his. Looking at the evidence in the light most favorable to the prosecution, we hold that sufficient evidence existed for the District Court to convict Ahmed of the crimes charged.

3. Did the District Court abuse its discretion by considering evidence of flight?

Ahmed contends that the District Court abused its discretion by considering evidence regarding how and when he left Montana, and by construing that evidence as proof of flight. He admits that flight evidence may be admitted as a circumstance tending to show consciousness of guilt. State v. McKimmie (1988), 232 Mont. 227, 231, 756 P.2d 1135, 1138. But he also contends that flight evidence is admissible only if the District Court is satisfied that the crime charged has in fact been committed by someone. State v. Pepperling (1974), 166 Mont. 293, 299, 533 P.2d 283, 287.

In this case, the question faced by the District Court was not who committed a given crime, but rather whether a crime occurred at all. Ahmed argues that the District Court employed circular reasoning. He contends that the District Court concluded that evidence of flight is admissible to infer consciousness of guilt because a crime was committed, but then found that a crime was committed because Ahmed allegedly fled.

Ahmed misconstrues the decision of the District Court. In order to convict Ahmed of the crimes charged, the State had to show both that the crimes were committed and that Ahmed was the person who committed them. Having found from the testimony of J.F. and other witnesses that the crimes charged did in fact occur, the District Court properly considered flight evidence in reaching the conclusion that Ahmed was the one who committed them.

It is undisputed that, on the same evening that J.F. took the gun and went to the police, Ahmed left the state for Fargo, North Dakota. He then took a bus to New York City where he remained for the next three and a half years, knowing that the Bozeman police department was looking for him. He left Montana on the night in question without taking his car or the new puppy he had recently acquired, and without forwarding his mail. He headed to New York although he had previously informed the police that he intended to go to California. Based on this evidence, the District Court concluded that Ahmed had fled from Bozeman to avoid arrest or prosecution for his crimes.

Ahmed argues that the foregoing does not establish that he was fleeing from criminal charges because, in reality, no crimes had occurred. According to him, after spending the day “saying goodbye” to J.F., he left the state according to plan. This, however, is merely a reargument of the sufficiency of the evidence. The District Court concluded that Ahmed had held J.F. in her apartment against her will for almost three days and that, in the course of that time, he caused her reasonable apprehension that he would seriously injure her with the gun or the knife. As stated above, the evidence presented was sufficient to justify such a finding. Having satisfied itself that the crimes alleged did in fact occur, the District Court did not err in considering flight evidence in order to infer that Ahmed was conscious of his own guilt.

4. Did the District Court abuse its discretion by allowing testimony regarding a telephone conversation between Ahmed’s New York attorney and a Gallatin County deputy sheriff?

When Ahmed learned about the charges pending against him, he retained a New York attorney in an attempt to have the attorney “look into” the matter. At trial, a Gallatin County deputy sheriff testified that he had received several phone calls from Ahmed’s attorney. He farther testified that the attorney had inquired into the circumstances of the charges and indicated a desire to resolve the situation. The deputy sheriff also testified to telling the attorney that the situation could only be resolved by Ahmed’s returning to Montana to face the charges. The attorney then indicated that he would advise Ahmed to turn himself in.

Defense counsel objected to this entire line of questioning on the grounds that it was impermissible hearsay evidence. The State responded that the testimony was admissible as a statement of a party-opponent made through an agent, which is not hearsay under Rule 801(d)(2)(C) and (D), M.R.Evid. We agree with the State.

Rule 801(d) provides, in part:

Statements which are not hearsay. A statement is not hearsay if:
(2) Admission by a party-opponent. The statement is offered against a party and is ... (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of that relationship ....

Rule 801(d)(2)(C) and (D), M.R.Evid. Ahmed testified that he had retained the New York lawyer in an effort to resolve the charges against him. In attempting to do so, the attorney called the Gallatin County deputy sheriff to discuss the status of the case. In so doing, the attorney was acting as an agent for Ahmed. He was representing Ahmed’s interests and following Ahmed’s instructions by exploring how the charges might be resolved. The disputed conversation took place during the existence of the agency relationship, and the attorney’s comments concerned a matter within the scope of that relationship. Therefore, the attorney’s statements were not hearsay and the District Court properly refused to exclude them on that basis.

Ahmed also argues that the testimony should have been excluded because it constituted a violation of his attorney-client privilege. In Montana, the attorney-client privilege is codified in § 26-1-803, MCA, which states:

(1) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him or his advice given to the client in the course of professional employment.
(2) A client cannot, except voluntarily, be examined as to any communication made by him to his attorney or the advice given to him by his attorney in the course of the attorney’s professional employment.

By its terms, this statutes applies to communications made by a client to an attorney or vice versa. In this case, however, the attorney made the disputed statements to a third party, the Gallatin County deputy sheriff.

Ahmed correctly cites Palmer v. Farmer Ins. Exchange (1993), 261 Mont. 91, 861 P.2d 895, as standing for the proposition that an attorney may not disclose advice given to his client without the consent of the client. Palmer, 861 P.2d at 906. However, Palmer is not on point for two reasons. First, Ahmed’s attorney did not reveal advice he had given to Ahmed, but rather conveyed what he intended to tell him. Second, Ahmed implicitly consented to the entire conversation by directing his attorney to attempt to take care of the charges. In contrast, Palmer concerned an attempt by a claimant to compel production of confidential files detailing communications between an insurer and its attorney. Voluntary disclosure to a third party was not the issue in Palmer and, therefore, it is not on point.

Because the conversations between the Gallatin County deputy sheriff and Ahmed’s attorney involved communications made by an agent in the course of his agency, they were not hearsay. Because the conversations took place between the attorney and a third party, with the client’s implicit consent, they are not subject to the attorney-client privilege. Accordingly, the District Court did not abuse its discretion by allowing the deputy sheriff’s testimony.

Ahmed raises several other specifications of error regarding various testimony which he claims the District Court should not have allowed into evidence. However, a review of the record reveals that no objections were made at trial to any of the testimony in question. As articulated in the discussion of issue 1(a), the lack of a contemporaneous objection precludes this Court from considering an alleged error. Section 46-2-104, MCA; Arlington, 875 P.2d at 321. Nor do any of the alleged errors justify invocation of the common law plain error doctrine. Because these issues were not properly preserved for appellate review, we decline to address them.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, ERDMANN, TRIEWEILER and NELSON concur.

JUSTICE LEAPHART

dissenting:

I dissent. In my view, the trial court’s final decision in this matter was colored by the fact that the court impermissibly questioned Ahmed as to whether he was an illegal alien while living in New York. The court pursued this line of questioning despite Ahmed’s invocation of his 5th Amendment right not to incriminate himself. Although the court, in a post-trial order, sustained defense counsel’s objection to these questions and struck the testimony, the trial court’s findings of fact and conclusions of law contain references suggesting that the court did consider Ahmed’s testimony as to his immigration status. In Finding #15, the court noted that “Defendant was ‘out-of-status’ in the spring of 1990.” In Finding #17, the court stated:

An alien who marries a U.S. citizen may, upon petition from the citizen-spouse, be allowed to stay in the U.S. It was likely that the Defendant would have been permitted to remain in the U.S. if his citizen-spouse were to file an appropriate petition. Defendant had extra incentive to win J.F. back during the summer of 1990.

Clearly, despite the fact that testimony as to Ahmed’s immigration status was elicited in violation of his 5th Amendment rights, the court put much store by the fact that Ahmed was “out-of-status” with the INS. Furthermore, the court’s reasoning that Ahmed’s out-of-status situation gave him incentive to win J.F. back is tenuous at best. Agent Sprekelmeyer testified that there is no status granted or changed as a result of an alien’s marriage to a U.S. citizen. Rather, as a matter of grace, the Attorney General may allow out-of-status aliens to remain in the U.S. i/they are making application for adjustment of status. Although the Attorney General does not generally choose to deport out-of-status aliens married to U.S. citizens, “they are deportable during that period of time.” If validating his status with the INS were Ahmed’s ultimate goal, it would be more logical to conclude that Ahmed would seek to cure his out-of-status situation by, as Agent Sprekelmeyer acknowledged, merely filing an application for reinstatement as a student. This would certainly be a quicker and more effective way to reinstate his status than pursuing a forced marriage with a U.S. citizen when marriage alone would not change his status.

I would also reverse due to the court’s allowing Lt. Cashell to testify, over objection, as to the contents of a phone conversation Cashell had with Ahmed’s attorney Mr. Gadye. Gadye placed a call to Cashell to discuss the case. In the context of discussing how to resolve the charges, Cashell testified that Gadye said he would advise Ahmed to surrender himself. This hearsay statement by defense counsel during the course of settlement discussions had no probative value. It was not an admission by Ahmed. It was merely a statement by Gadye as to what he intended to tell Ahmed. There was no evidence that he, in fact, passed this advice on to Ahmed. Ahmed was put in the position where he could not rebut this testimony without revealing privileged communications he had with his counsel. The hearsay had no probative value and yet was highly prejudicial to Ahmed.

The State argues that Gadye’s statement was not hearsay under Rule 801(d)(2)(C) and (D), M.R.Evid., which excludes from hearsay

(C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of that relationship ....

Clearly, Rule 801 contemplates the admission of statements which reflect information or positions that the party (here, the defendant) has communicated to the agent and has authorized the agent to discuss. It does not contemplate the admission of information or advice which is flowing the other direction. That is, from counsel to client (the defendant). It is one thing to hold Ahmed responsible for positions that originate with him or that he has authorized. It is quite another to hold him to positions taken by another when the position may not have even been communicated to or discussed with Ahmed. What someone intended to tell Ahmed is totally irrelevant to what Ahmed in fact knew or contemplated. The court’s reliance on this hearsay testimony in its findings indicates that it was a significant, and, I submit, improper, factor in the court’s analysis.

For the above reasons, I would reverse the conviction.


source: Caselaw Access Project

license: Public Domain

text:
    PHILIP KEATING, Petitioner, v. HON. JEFFREY SHERLOCK, District Judge, First Judicial District, MIKE McGRATH, County Attorney, and VICKI FRASIER, Assistant County Attorney, Lewis and Clark County, Montana, and JOSEPH P. MAZUREK, Attorney General of the State of Montana, Respondents.
    Nos. 96-402, 96-452, 96-457.
    Ordered September 10, 1996.
    53 St.Rep. 855.
    278 Mont. 218.
    924 P.2d 1297.
   OPINION AND ORDER

In this opinion we address the legal issues raised by Petitioner Philip Keating (Keating) in three separate applications for extraordinary writs filed in July and August 1996.

Procedural Background

Keating was charged in the First Judicial District, Lewis and Clark County, with felony assault; criminal possession of dangerous drugs (methamphetamine), a felony; criminal possession of dangerous drugs (marijuana), a misdemeanor; and two counts of criminal possession of drug paraphernalia, misdemeanors. The matter was set for trial on July 9,1996. The matter proceeded to trial on July 9,1996 at which time a jury of twelve was selected. Pursuant to the practice of the First Judicial District with regard to trials of three days or less, as well as the stipulation of the parties, no alternate jurors were selected or seated with the twelve Petit jurors. Following the seating and swearing of the jury, opening statements were presented by both the State and Keating’s counsel. Following the opening statements, the trial recessed for lunch.

When the proceedings resumed after lunch, Judge Jeffrey Sherlock informed the parties that during the lunch recess a juror had advised the court that she was ill and would not be returning to jury duty. After Judge Sherlock was unsuccessful at obtaining an agreement to continue the trial in order to wait for the juror, the judge discussed with counsel the possibility of proceeding with eleven jurors, or calling additional members of the Keating jury panel in order to obtain a new juror. Keating rejected both these alternatives and requested a mistrial. The court declared a mistrial without objection from Keating. Trial was then rescheduled for July 22, 1996.

On Wednesday, July 17, Keating filed a motion to dismiss all of the charges on double jeopardy grounds. On Thursday, July 18, prior to Judge Sherlock’s ruling on the pending motion to dismiss, Keating filed an Application for a Writ of Supervisory Control in the Supreme Court (No. 96-402) seeking a stay of the District Court proceedings until the double jeopardy issue had been addressed. On July 18, this Court issued an order staying further proceedings in the District Court until such time as the State had an opportunity to respond to the motion. Later that same day, the State filed a response asking this Court to reconsider its order vacating the trial setting and to dismiss Keating’s application for a writ of supervisory control. The State contended that granting the writ was inappropriate since Keating had an adequate remedy by way of appeal. We declined to reconsider our prior order and remanded to the District Court for a determination of whether the mistrial was the result of manifest necessity. In our order refusing to reconsider, we indicated that an opinion from this Court would be issued at a later date.

In subsequent proceedings, the trial court ruled that Keating impliedly consented to the mistrial and that the declaration of a mistrial due to a sick juror constituted manifest necessity. The court then scheduled a new trial for August 5, 1996. On August 1, 1996, Keating filed another Application for Writ of Supervisory Control (No. 96-452) arguing that the District Court’s finding that Keating acquiesced in the mistrial was erroneous. Keating’s August 1,1996, Application did not raise an issue as to whether the juror was, in fact, ill; did not address the court’s holding that juror illness constituted manifest necessity; nor did the Application contend that he had been denied an evidentiary hearing on the question of manifest necessity. We declined to issue the writ of supervisory control.

On Monday, August 5, 1996, the second trial proceeded as scheduled. The jury was empaneled and sworn and the State proceeded with presenting its case. That afternoon, Keating filed an Application for a Writ of Habeas Corpus (No. 96-457) claiming that his right not to be placed again in jeopardy and his right to due process were denied when the trial court made a determination of manifest necessity without affording him an evidentiary hearing on that issue. All three applications are discussed below.

Issues Presented

We phrase the issues presented as follows:

1. Must an issue of double jeopardy be addressed prior to the commencement of the second trial or is an appeal after the second trial adequate?

2. Did Keating consent to a retrial by moving for a mistrial and by failing to object to the court’s declaration of mistrial?

Discussion

1. Must an issue of double jeopardy be addressed prior to the commencement of the second trial or is an appeal after the second trial adequate?

On July 9, 1996, a jury was selected, empaneled and sworn and the counsel for the respective parties presented their opening statements. After a lunch break, a juror advised the court that she would not be able to continue to serve as a juror. Thereafter, Keating moved for a mistrial. The trial court declared a mistrial and set a new trial for July 22, 1996. Keating subsequently moved to dismiss the charges on the basis of the constitutional prohibition against placing a person twice in jeopardy. Fifth Amend., U.S. Const, and Art. II, Sec. 25, Mont. Const.

Before a question of double jeopardy arises, there must be an initial determination as to whether jeopardy has attached in the first instance. In a case which originated in Montana, the United States Supreme Court declared as unconstitutional, Montana’s statutory provision that jeopardy attaches when the first witness is sworn. Crist v. Bretz (1978), 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24. In Bretz, the Court held that, in a jury trial, jeopardy attaches when the jury is empaneled and sworn, not when the first witness is sworn. Despite the Bretz decision, § 46-11-503(1)(d)(i), MCA, still provides that a prosecution is barred if: “the former prosecution was terminated for reasons not amounting to an acquittal and takes place: in a jury trial, after the first witness is sworn but before a verdict is returned. ...” (Emphasis added.) This provision is just as unconstitutional now as it was eighteen years ago. Here, the District Court acknowledged, as it must, that the pronouncement by the United States Supreme Court in Bretz controls over the provisions of the statute.

In the present case, a jury was empaneled and sworn and opening statements were presented before the juror informed the court that she would be unable to continue sitting due to illness. Accordingly, there is no question under the holding in Bretz but that jeopardy had attached at the point in time when the court declared a mistrial.

The trial court reset the matter for trial and Keating then moved to dismiss based upon the constitutional prohibition against placing a person twice in jeopardy. Keating argued that the issue of double jeopardy had to be addressed prior to the commencement of the second trial. Relying upon our decision in State ex rel. Forsyth v. District Court (1985), 216 Mont. 480, 701 P.2d 1346, the State countered that the matter could proceed to retrial and that Keating’s double jeopardy issue could be adequately addressed on a subsequent appeal. In Forsyth, we held as follows:

This Court has previously held that the refusal by a district cotut to dismiss criminal charges on a double jeopardy claim does not warrant supervisory control, as the remedy for a criminal defendant lies in an appeal following conviction or in a post-conviction proceeding. State ex rel. LaFlesch v. District Court (1974), 165 Mont. 302, 306, 529 P.2d 1403, 1405.

Forsyth, 701 P.2d at 1351.

We now overrule Forsyth and LaFlesch. Both the U.S. Constitution, Fifth Amendment and the Montana Constitution, Article II, Section 25, protect individuals from being twice placed in jeopardy. If those guarantees are to have any significance, they require that the prohibition must be given effect prior to, not after, the second trial. If, as the State argued, Keating proceeded with a second trial and were convicted, he could appeal on the basis of double jeopardy. This Court could vacate the conviction. However, vacating the conviction would not change the fact that Keating would have been “put in jeopardy.” The same would hold true even if Keating were acquitted in the second trial. That is, the acquittal would not alter the fact that, in being tried a second time, he was again placed in jeopardy of being convicted. The constitutional prohibition is designed to prevent the individual from being put at risk of conviction at a second trial. Once he endures the second trial, regardless of conviction or acquittal, he has incurred the risk; he has been put in “jeopardy,” and that fact cannot be remedied or expunged after the fact.

The United States Supreme Court, in Abney v. United States (1977), 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651, established that a double jeopardy challenge is unique and must be addressed before the risk of a second trial occurs. The Court recognized that the Double Jeopardy Clause protects not only against double punishment but against “being twice put to trial for the same offense.” Abney, 431 U.S. at 661, 97 S.Ct. at 2041.

In construing the Fifth Amendment language, “nor shall any person be subject (for the same offense) to be twice put in jeopardy of life and limb,” the Court found that “[t]he ‘twice put in jeopardy5 language of the Constitution thus relates to a potential, i.e., the risk that an accused for a second time will be convicted of the ‘same offense5 for which he was initially tried.” (Emphasis added.) Abney, 431 U.S. at 661, 97 S.Ct. at 2041 (quoting Price v. Georgia (1970), 398 U.S. 323, 326, 90 S.Ct. 1757, 1759, 26 L.Ed.2d 300, 303).

The Court noted: “[t]hese aspects of the guarantee’s protections would be lost if the accused were forced to ‘run the gauntlet’ a second time before an appeal could be taken ....’’Abney, 431 U.S. at 662, 97 S.Ct. at 2041. See Mannes v. Gillespie (9th Cir. 1992), 967 F.2d 1310, 1312 (citing Abney).

Accordingly, our holding in Forsyth and LaFlesch, that a double jeopardy challenge can be adequately reviewed on appeal, is erroneous and those decisions are hereby overruled. Rather, we reaffirm our approach in State v. Van Dyken (1990), 242 Mont. 415, 791 P.2d 1350, in which we granted a writ of supervisory control to address the question of whether declaration of a mistrial due to a hung jury constituted a double jeopardy bar to a second trial. We concluded that a hung jury did not bar a second trial. The significance of Van Dyken in the present case is that, contrary to the ruling in Forsyth, we did not require Van Dyken to proceed with a second trial and then pursue an after-the-fact appeal on the double jeopardy issue. In keeping with the nature of the double jeopardy guarantee, we granted the writ of supervisory control and resolved the issue before the second trial commenced.

In the case sub judice, jeopardy had attached during the first aborted trial. Accordingly, in light of Keating’s subsequent motion to dismiss on double jeopardy grounds, our July 18,1996, order staying a second trial until such time as the trial court could first address the questions of double jeopardy and manifest necessity was constitutionally mandated.

2. Did Keating consent to a retrial by moving for a mistrial and by failing to object to the court’s declaration of mistrial?

Although Keating eventually filed a pleading in which he argued that his rights had been denied by the court’s failure to grant him an evidentiary hearing on the question of manifest necessity, that pleading was both deficient and untimely. First of all, the pleading in which this issue was raised was an Application for a Writ of Habeas Corpus. The writ of habeas corpus is designed to address questions as to the legality of incarceration. Section 46-22-101, MCA; State v. Sor-Lokken (1991), 247 Mont. 343, 805 P.2d 1367; August v. Burns (1927), 79 Mont. 198, 255 P. 737.

Keating did not allege, nor does it appear from the record or pleadings, that he was incarcerated prior to or during the trial. In his petition for habeas corpus, Keating stated that his case had already been delayed for more than a year, during which, “there has been a very large bond and no violations of that bond....” Thus it is apparent that Keating was not incarcerated at the time but was free on bond. Accordingly, there was no basis to grant a writ of habeas corpus.

Secondly, Keating’s argument that he was entitled to an evidentiary hearing as to whether manifest necessity existed ignores the fact that, not only was it he that requested the mistrial in the first instance, but also, he did not object when the court, after unsuccessfully attempting to get counsel to agree to an alternative, declared the mistrial.

The United States Supreme Court has held that the manifest necessity standard applies only where the mistrial has been declared without the defendant’s request or consent. United States v. Dinitz (1976), 424 U.S. 600, 607, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267, 273.

The Court in Dinitz went on to explain that:

[W]here circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.

Dinitz, 424 U.S. at 607, 96 S.Ct. at 1079-80 (citing United States v. Jorn (1971), 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543).

This Court recognizes the general rule that when a defendant moves for a mistrial and the same is granted, the “manifest necessity” standard does not apply. State v. Laster (1986), 223 Mont. 152, 153, 724 P.2d 721, 722. This rule is codified at § 46-11-503(2)(a), MCA, which states:

A prosecution based upon the same transaction as a former prosecution is not barred under subsection (l)(d) when:
(a) the defendant consents to the termination or waives his right to object to the termination ....

Consequently, when a defendant requests or consents to a mistrial after jeopardy attaches, regardless of when it attaches, a second trial will not be barred by the double jeopardy prohibition. Although we declared § 46-ll-503(l)(d)(i), MCA, (jeopardy attaching upon swearing of first witness in a jury trial) unconstitutional earlier in this opinion, (2)(a) survives as a constitutional codification of the United States Supreme Court rule in Dinitz when (2)(a) is read in conjunction with a constitutional reading of when jeopardy attaches in a jury trial (jeopardy attaching upon empaneling of jury in a jury trial).

Dinitz does provide an exception to the general rule that a second prosecution is not barred when a defendant requests or consents to a mistrial. This Court recognized the exception laid out in Dinitz that:

where the defendant moves for mistrial but is goaded into doing so by the prosecutor’s actions, the double jeopardy clause bars retrial even though defendant himself moved for the mistrial.

Laster, 724 P.2d at 722.

Before we address the question of whether Keating was “goaded” into requesting a mistrial, we will first discuss whether Keating consented to the mistrial at all. Keating claims that he did not acquiesce in the declaration of mistrial and, therefore, the manifest necessity standard should apply.

In United States v. Smith (9th Cir. 1980), 621 F.2d 350, the Ninth Circuit Court of Appeals was confronted with facts strikingly similar to those before us here. In Smith, on the second day of trial, the court learned that a juror’s mother had suffered a stroke and that the juror had been with her mother at the hospital until very late at night and, consequently, was unable to return to the trial. The court had neglected to select an alternate. The defendant refused to proceed with fewer than twelve jurors and there was no indication that the trial court, which sua sponte declared a mistrial, considered the possibility of a continuance. The Ninth Circuit noted that while a trial court is not required to make an explicit finding of manifest necessity or to articulate on the record all the factors which informed its discretion, Arizona v. Washington (1978), 434 U.S. 497, 516-17, 98 S.Ct. 824, 835-36, 54 L.Ed.2d 717, 734-35, the record gave no indication that the trial court even considered the possibility of a continuance before ordering a mistrial. Even though, as a general rule, the unavailability of an irreplaceable juror makes a mistrial manifestly necessary, see Oelke v. United States (9th Cir. 1967), 389 F.2d 668, 671, the court in Smith held that, since the trial court did not consider a continuance of the trial as an obvious alternative to the mistrial, it could not say that there was “manifest necessity” to terminate the trial atthattime. Smith, 621 F.2d at 351. When a court, in the absence of manifest necessity, declares a mistrial without the defendant’s consent, the double jeopardy clause forbids retrial. See generally United States v. Sanders (9th Cir. 1979), 591 F.2d 1293, 1296-99. Having found no manifest necessity and that Smith did not expressly request a mistrial, the court in Smith thus turned to the question of whether Smith, by statements or silences, impliedly consented to the mistrial. In reviewing the record, the court determined that Smith’s counsel did not object to the order of mistrial, despite adequate opportunity to do so. When the eleven jurors arrived at the courtroom the trial court asked counsel “[D]o you mind if we bring the jury in ... and excuse them?” Smith’s counsel answered, “That is fine.”

These items show that defense counsel not only did not object to the order of mistrial, but affirmatively indicated his understanding that there could and would be a retrial. This is enough to constitute implied consent. Because Smith, through counsel, impliedly consented to the mistrial, and the need for the mistrial did not arise from any prosecutorial or judicial overreaching, the double jeopardy clause does not bar retrial. See Lee v. United States, 432 U.S. 23, 32, 97 S.Ct. 2141, 2146, 52 L.Ed.2d 80 (1977).

Smith, 621 F.2d at 352.

In the present case, the record militates even more strongly in favor of a retrial. Unlike the Smith court, the trial court here, did explore alternatives (continuance of the trial, proceeding with fewer than twelve jurors, selecting a new juror to replace the absent juror) before declaring a mistrial. Thus the record would support a finding of manifest necessity for a mistrial. However, the question of manifest necessity need only be addressed if the court declares a mistrial without the defendant’s consent. Dinitz, 424 U.S. at 607, 96 S.Ct. at 1079-80. Here, the District Court first explored the possibility of continuing the trial until the juror could return. When that option did not work, the following colloquy transpired between the court and counsel:

THE COURT: So our option, as I see it, unless I hear an idea from somebody else, declare a mistrial and begin again on the 22nd, start over, or call in the three alternates, pick the people that were left as the alternate pool, examine them and proceed. I don’t know that maybe we should call them. I’m thinking out loud. I don’t know that we shouldn’t call in even more. This has never happened. So this is my suggestion. We call in those three people, see what we can do, or start again on the 22nd.
DEFENSE COUNSEL: I ask we declare a mistrial.
STATE: Pardon me.
DEFENSE COUNSEL: I would ask that we declare a mistrial. On the 22nd I would be available.

Following this discussion, the cot .rt inquired of defense counsel as to whether he would consent to the 1.9th of July as a new trial date. Counsel stated that he reserved anj objections and that he would not stipulate. He reiterated a number c times that he was available on the 22nd of July. Ultimately, the cou t declared a mistrial and set the matter for July 22nd. Although the court inquired whether there was anything further from counsel, there was no objection from defense counsel as to this procedure.

The record is clear that Keating requested this mistrial and that he did not object to the court’s granting a mistrial and scheduling a new trial on July 22. Keating, however, argues (1) he had no realistic choice but to request a mistrial, and (2) his subsequent request for an evidentiaryhearingonthe question of “manifest necessity” should have been honored. We find no merit to either of these contentions.

In a case such as this where the defendant makes a request for a mistrial, the question becomes one of whether he was truly free to make the request or whether it was mandated by prosecutorial or judicial overreaching. Dinitz, 424 U.S. at 609, 96 S.Ct. at 1080. Although Keating has suggested that, in reality, he did not have any choice but to request a mistrial, he does not contend that he was “goaded” into the choice as a result of prosecutorial or judicial overreaching. The mere fact that a defendant may have felt compelled to ask for the mistrial alternative does not necessarily mean that he can then claim double jeopardy. United States v. McKoy (9th Cir. 1996), 78 F.3rd 446, 450.

Furthermore, his contention that he had no real alternative rings hollow. The court presented at least two viable alternatives: stipulating to a jury of less than twelve, or calling in three more of the veniremen and selecting a new juror. Keating rejected both of these options and moved for mistrial with a new trial setting.

After this Court stayed the trial setting and remanded for consideration of the double jeopardy issue, Keating requested an evidentiary hearing on the question of manifest necessity. This request came too late. It was obviated by the fact that Keating’s counsel had already requested a mistrial and had failed to object when the court declared a mistrial. In order to be of any effect, Keating should have raised the issue on July 9, 1996, before the court dismissed the jury. See Scott v. United States (D.C.Cir. 1952), 202 F.2d 354, 355-56, cert, denied, 344 U.S. 879, 73 S.Ct. 176, 97 L.Ed.2d 681, in which counsel was faulted for failing to object during the interlude between the order of mistrial and the actual dismissal of the jurors, after which it was “too late for his objection to be effective.” By the time Keating filed his Petition for Writ of Habeas Corpus with this Court on August 5, 1996, the question was further mooted by the fact that, since the second jury panel had been empaneled and sworn, jeopardy had already attached a second time. Thus, the only justiciable issue at that juncture would have been triple jeopardy. Furthermore, as we have previously pointed out, the question of manifest necessity does not even become an issue when defense counsel requests the mistrial and does not contend that counsel was “goaded” into the request because of prosecutorial or judicial overreaching.

We hold that Keating was not entitled to an evidentiary hearing on the question of manifest necessity and that a mistrial declared at his request and for reasons not attributable to judicial or prosecutorial overreaching was not a barrier to reprosecution. Dinitz, 424 U.S. at 607, 96 S.Ct. at 1079-80; United States v. Jorn (1971), 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543.

DATED this 10th day of September, 1996

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, NELSON, TRIEWEILER and GRAY concur.


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOHN O. MILLER, IV, Defendant and Appellant.
    No. 95-550.
    Submitted on Briefs June 20, 1996.
    Decided September 10, 1996.
    53 St.Rep. 861.
    278 Mont. 231.
    924 P.2d 690.

      For Appellant: Edmund F. Sheehy, Jr., Cannon and Sheehy, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Elizabeth L. Grilling, Assistant Attorney General, Helena; Blair Jones, Stillwater County Attorney, Columbus.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The, defendant John O. Miller, IV, filed an amended petition for post-conviction relief in the District Court for the Thirteenth Judicial District in Stillwater County. The petition alleged that his guilty plea had not been entered in compliance with § 46-12-204(3)(b), MCA (1989), and that he received ineffective assistance of counsel. The District Court denied the petition. Miller appeals from that decision. We affirm the judgment of the District Court.

The issue on appeal is whether the District Court erred when it denied Miller’s petition for post-conviction relief.

FACTUAL BACKGROUND

On January 14, 1991, John O. Miller, IV, was charged with two counts of deliberate homicide in violation of § 45-5-102, MCA; He retained James Goetz, a private attorney, to represent him, and in August 1991 he pled guilty to both counts. In exchange for his plea, the State agreed not to seek the death penalty, and to recommend that he receive two concurrent life sentences.

At his change of plea hearing, Miller confirmed that he had signed the acknowledgment of waiver of rights form, and that his attorney had discussed those rights with him. The District Court instructed him that he could receive a maximum penalty of two consecutive life sentences and then informed him of the rights waived upon entry of a guilty plea: the right to a trial by jury; the right to assistance of counsel at trial; the right to testify on one’s own behalf; the right to confront witnesses; the right to remain silent at trial; the right to have the charges proved beyond a reasonable doubt; and the right to appeal a finding of guilt. The District Court also expressly stated that it was not bound by the plea agreement recommended by the parties, and that the court could “impose any other sentence that would be appropriate under the law ... without regard to [the] plea bargain.” Miller acknowledged that he understood his rights and the consequences of pleading guilty to the crimes charged.

The District Court accepted the guilty pleas. A presentence investigation report recommended that Miller receive two consecutive life sentences, and that he should not be eligible for parole in less than forty years.

On November 8, 1991, the District Court sentenced Miller to two concurrent life sentences. The District Court also imposed a condition that Miller not be eligible for parole for twenty-four years from the date of the sentencing order. Neither the conviction nor the sentence was appealed.

DISCUSSION

Did the District Court err when it denied Miller’s petition for post-conviction relief?

The standard of review of a district court’s findings of fact is whether they are clearly erroneous. State v. Bower (1992), 254 Mont. 1, 7, 833 P.2d 1106, 1110. The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. State v. Sullivan (1994), 266 Mont. 313, 318, 880 P.2d 829, 832.

On appeal, Miller presents the following argument: (1) his guilty plea was invalid because it was not entered in strict compliance with the requirements of § 46-12-204(3)(b), MCA (1989); (2) the District Court’s failure to strictly comply with § 46-12-204(3)(b), MCA (1989), gave rise to a right to appeal; and (3) attorney James Goetz provided ineffective assistance of counsel when he did not advise Miller of his right to appeal.

Ineffective assistance of counsel claims are analyzed by this Court pursuant to the two-part test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. First, the defendant must establish that his counsel’s performance was not commensurate with the range of competence demanded of attorneys under similar circumstances. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Second, the defendant must establish that “but for” inadequate performance by his counsel, the result would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

We conclude that Miller’s claim fails in both respects.

We start with the operative principle that there is no duty in all cases to advise of the right to appeal a conviction after a guilty plea. Rather counsel is obligated to give such advice only when the defendant inquires about appeal rights or when there are circumstances present that indicate that defendant may benefit from receiving such advice.

Marrow v. United States (9th Cir. 1985), 772 F.2d 525, 528.

Miller contends that he could have benefited from such advice because of the District Court’s failure to strictly comply with § 46-12-204(3)(b), MCA (1989). At the time his guilty plea was entered, that statute required, in relevant part, that:

(b) Before a judge accepts a plea of guilty, he must advise the defendant:
(iii) that prior to entering a plea of guilty, the defendant and his counsel should have carefully reviewed Title 46, chapter 18, and considered the most severe sentence that can be imposed for a particular crime ....

Section 46-12-204(3)(b), MCA(1989). It is undisputed that, during the guilty plea hearing, the District Court did not use the words “most severe sentence,” and failed to instruct Miller to review Title 46, chapter 18. However, we hold that, basedon the facts of this case, the District Court’s failure to strictly comply with § 46-12-204(3)(b), MCA (1989), was not prejudicial to Miller’s rights, did not give rise to a right to appeal, and, concomitantly, cannot support Miller’s claim that his attorney was ineffective.

Montana’s Code of Criminal Procedure states, in relevant part: Elements of record court considers on review — errors noticed. (1) Whenever the record on appeal shall contain any order, ruling, or proceeding of the trial court against the respondent [convicted person] affecting his substantial rights on the appeal of said cause, together with any required objection of such respondent, the supreme court on such appeal shall consider such orders, rulings, or proceedings and the objections thereto and shall reverse or affirm the cause on said appeal according to the substantial rights of the respective parties, as shown upon the record. No cause shall be reversed by reason of any error committed by the trial court against the appellant [convicted person] unless the record shows that the error was prejudicial.

Section 46-20-701, MCA (emphasis added). “To constitute reversible error, the trial court’s actions must affect substantial rights of the party.” State v. Bradley (1995), 269 Mont. 392, 395, 889 P.2d 1167, 1168. We have interpreted § 46-20-701, MCA, to require that “[w]hen prejudice is alleged in a criminal case the prejudice will not be presumed, rather, it must be established from the record that a substantial right was denied.” State v. Eichenlaub (1995), 272 Mont. 332, 336-37, 901 P.2d 90, 93. In addition, “[w]hen assessing the prejudicial effect of an error, we examine the totality of the circumstances in which the error occurred.” Bower, 254 Mont, at 6, 833 P.2d at 1109. Under the guidance of these principles, and after a thorough review of the record, we conclude that the District Court’s failure to strictly comply with § 46-12-204(3)(b), MCA (1989), did not deprive Miller of the essential information to which he was entitled, and therefore, did not constitute prejudicial error.

The District Court informed Miller of the maximum penalty provided by law: a life sentence for each count, and that the sentences could be imposed consecutively. Miller acknowledged that he understood everything the District Court had told him.

In its order denying the petition for post-conviction relief, the District Court correctly observed that, while the exact words “most severe sentence” were not used, Miller was informed of the “maximum possible penally.” This purely semantic difference does not amount to prejudicial error. Likewise, the District Court recognized that the failure to state that sentencing is governed by Title 46, chapter 18, did not prejudice Miller because “[t]hat information, standing alone, would not aid or benefit any criminal defendant in the least.”

Since Miller could not have successfully appealed his sentence based solely on the District Court’s failure to use the language of § 46-12-204(3)(b), MCA (1989), verbatim, we hold that, pursuant to Strickland and Marrow, counsel was not ineffective for not advising him of his right to appeal his sentence.

The District Court’s denial of Miller’s petition for post-conviction relief is, therefore, affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, ERDMANN and HUNT concur.