Prosecutor's misconduct

2000 MT 379
303 Mont. 507
16 P. 3d 391
STATE OF MONTANA, v.
MICHAEL A. STEWART,
1. Whether the District Court erred in admitting the Soma prescription.
2. Whether the prosecutor's mention of Stewart's pretrial silence was improper.
3. Whether matters not objected to at trial should be reviewed under the plain error
doctrine.
4. Whether any error by the prosecution justifies a new trial.
The State concedes that the prosecutor should not have made this statement to the jury because sentencing is solely the duty of the trial court. In a non-capital case, the jury's verdict should not be influenced in any way by sentencing considerations. State v. Brodniak (1986), 221 Mont. 212, 226, 718 P.2d 322, 332 (citations omitted). Hence, it is impermissible for a jury to give weight to the possible punishment when reaching a verdict. Brodniak, 221 Mont. at 227, 718 P.2d at 332. On retrial, we admonish the prosecution not to refer to the rape story, the need for a new jail in Missoula County, the "some-dude" defense, or to matters involving sentencing in either voir dire, the prosecution's opening statement or closing argument.
Reversed and remanded for further proceedings consistent with this opinion.