State Of Mont. v. Taylor

• Decision Date: 04 May 2010
• Docket Number: No. DA 09-0246.,DA 09-0246.
• Citation: 2010 MT 94,356 Mont. 167,231 P.3d 79
• Parties: STATE of Montana, Plaintiff and Appellee,v.Kevin Mark TAYLOR, Defendant and Appellant.
• Court: Montana Supreme Court

356 Mont. 167

231 P.3d 79

2010 MT 94

STATE of Montana, Plaintiff and Appellee,v.Kevin Mark TAYLOR, Defendant and Appellant.

No. DA 09-0246.

Supreme Court of Montana.

Submitted on Briefs Dec. 10, 2009.

Decided May 4, 2010.

COPYRIGHT MATERIAL OMITTED

For Appellant: Joslyn Hunt, Chief Appellate Defender; Taryn S. Hart, Assistant Appellate Defender; Helena, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General; Sheri K. Sprigg, Assistant Attorney General; Helena, Montana, John Parker, Cascade County Attorney; Great Falls, Montana.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Kevin Mark Taylor appeals from the Judgment and Sentence of the Montana Eighth Judicial District Court. We affirm the District Court's Judgment and Sentence. We restate the following issues on appeal:

¶ 2 I. Whether the fact that state law enforcement did not conduct a rape exam warrants reversal under the common law plain error doctrine.

¶ 3 II. Whether Taylor was denied effective assistance of counsel at trial when his attorney did not seek dismissal of Count I or seek a missing evidence jury instruction.

¶ 4 III. Whether the District Court erred in denying Taylor's motion for a mistrial.

¶ 5 IV. Whether the District Court erred in denying Taylor's motion to sever the three charges against him.

BACKGROUND

¶ 6 Defendant Kevin Mark Taylor (Taylor) worked under contract as a massage therapist for Peak Health and Wellness in Great Falls, Montana. On March 11, 2008, “Jane Doe,” who had seen Taylor for a massage, contacted the Great Falls Police Department to report a sex offense in which she told law enforcement that Taylor had penetrated her vagina with his finger during the massage. Police Officer Keith Hedges (Hedges) took a statement from Doe and testified that he conferred with his supervisor regarding a rape exam for Doe. Hedges testified that it was ultimately his supervisor's decision not to request the rape exam and the decision was based in part on the conclusion that “we would not be finding bodily fluid such as semen inside of her.” Doe testified that if Hedges had suggested she go to the hospital, she would have done so. At trial the State did not produce any physical evidence of the crime. In closing arguments, Taylor's counsel argued that the lack of a rape exam created reasonable doubt as to Taylor's guilt. The State argued that there were valid law enforcement reasons for not conducting the exam.

¶ 7 The second charge, sexual assault, originated from an October 2007 professional massage Taylor gave to thirty-one-year-old “Janet Coe.” After the massage, Coe called her sister, explaining that Taylor had given her a massage that “seemed like it was sexual,” in which he had touched Coe on the inside of her thighs coming within an inch of her vagina. Coe did not tell her husband or call the police at the time because she wanted to just “get away” from what happened. She testified she did not want to go through the “torture” of pursuing prosecution. However, when Taylor's arrest was reported on the news, Coe told her husband to call the police.

¶ 8 Taylor was charged with three counts, including two counts of sexual intercourse without consent and a third count of misdemeanor sexual assault. Taylor pleaded not guilty to all counts. At trial, Taylor's counsel initially proposed a lesser-included offense jury instruction. The state objected, arguing that the instruction would not be appropriate since there was no evidence in the record to support the lesser-included offense of sexual assault. The District Court and defense counsel agreed to revisit the matter after trial, at which point Taylor's counsel withdrew the proposed instruction.

¶ 9 While Judge Neill instructed the jury, a group of roughly ten individuals dressed in black and blue uniforms entered and stood against the back wall of the courtroom on the prosecution side. Defense Counsel told the court that he heard from people in the courtroom that the group included “the husband of one of the alleged victims and potentially the Great Falls Ambulance crew.” After defense counsel brought the group to the court's attention, Judge Neill told them to be seated. The group then left the courtroom. When the jury was dismissed for deliberations, defense counsel made a motion for mistrial, arguing that the group's presence intimidated the jury thereby violating Taylor's fundamental right to a fair and impartial jury. The District Court denied Taylor's motion for a mistrial.

¶ 10 Taylor was convicted of one count of sexual intercourse without consent and one count of misdemeanor sexual assault. He was sentenced to the Montana State prison for thirty years, with five suspended, for the first count and to a consecutive sentence of six months at the Cascade County Detention Center for misdemeanor sexual assault. Taylor appeals.

DISCUSSION

¶ 11 I. Whether the fact that state law enforcement did not conduct a rape exam warrants reversal under the common law plain error doctrine.

¶ 12 This Court generally does not address issues raised for the first time on appeal. State v. Longfellow, 2008 MT 343, ¶ 19, 346 Mont. 286, 290, 194 P.3d 694, 697. However, when a criminal defendant's fundamental rights are invoked, we may choose to review a claim under the common law plain error doctrine where failing to review the claimed error may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process. State v. Jackson, 2009 MT 427, ¶ 42, 354 Mont. 63, 77, 221 P.3d 1213, 1224.

¶ 13 While we have acknowledged the constraints on appellate review of trial court errors articulated in § 46-20-701(2), MCA, we have also held that this Court may use its inherent power and paramount obligation to interpret Montana's Constitution and protect the rights set forth in that document. Id. Therefore, we may discretionarily review claimed errors that implicate a criminal defendant's fundamental constitutional rights even if the defendant did not timely object in the trial court, and notwithstanding constraints on appellate review set forth in § 46-20-701(2), MCA. Id.

¶ 14 In State v. Finley, we established the two-part test for whether common law plain error may be invoked:

[W]e hold that this Court may discretionarily review claimed errors that implicate a criminal defendant's fundamental constitutional rights, even if no contemporaneous objection is made and notwithstanding the inapplicability of the § 46-20-701(2), MCA, criteria, where failing to review the claimed error at issue may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process.

State v. Finley, 276 Mont. 126, 137, 915 P.2d 208, 215 (1996). Under this test, the Court asks two questions. First: does this alleged error implicate a fundamental right? Second: would failure to review the alleged error result in one of the above-listed consequences?

¶ 15 In recent decisions, we have observed that a fundamental aspect of “plain error” is that the alleged error indeed must be “plain.” State v. Wagner, 2009 MT 256, ¶ 21, 352 Mont. 1, 8, 215 P.3d 20, 25 (quoting State v. Godfrey, 2004 MT 197, ¶ 328, 322 Mont. 254, 266, 95 P.3d 166, 174). This statement has lent itself to misinterpretation, and we now find it useful to clarify how it fits into the common law plain error test established in Finley. The requirement that an error be “plain” is not a free-standing third requirement outside the two-part Finley test. It is, however, a means by which the Court may analyze whether the second Finley criterion has been satisfied.

¶ 16 For example, in State v. Wagner, 2009 MT 256, 352 Mont. 1, 215 P.3d 20, the defendant urged the Court to apply the common law plain error doctrine after the state prosecutor asked a series of questions creating an inference of guilt in the minds of jurors. We determined that the prosecutor was “overreaching” and that this “inference of guilt caused actual prejudice to Wagner.” Id. at ¶ 20-21. We held that “the prosecutor's conduct raises questions regarding the fundamental fairness of the trial by violating Wagner's constitutional right to due process and privilege against self-incrimination.” Id. at ¶ 21. We similarly invoked the “must be plain” language in State v. Godfrey, 322 Mont. at 266, 95 P.3d at 174. There, we held that the alleged error must leave the Court “firmly convinced” that a prosecutor's comments “created an inference for the jury that by remaining silent after receiving his rights, the defendant must be guilty of the alleged crimes.” Id. at ¶ 38.

¶ 17 In short, the “error must be plain” language is not an independent third requirement of common plain error. Rather, it serves as a guide in determining whether the second prong of the Finley test has been satisfied. The alleged error must leave one “firmly convinced” that some aspect of the trial, if not addressed, would result in a manifest miscarriage of justice, call into question the fairness of the trial or proceeding, or compromise the integrity of the judicial process. Here, Taylor requests that the Court overturn two of its precedents: that police officers have no duty to procure evidence on behalf of a defendant and that a defendant must show bad faith to prove a due process violation when lost evidence is only potentially exculpatory. See State v. Brown, 1999 MT 133, ¶ 24, 294 Mont. 509, 982 P.2d 468;; State v. Giddings, 2009 MT 61, ¶ 48, 349 Mont. 347, 357, 208 P.3d 363, 371. These arguments advocating revision of our jurisprudence on evidence-collecting were well- presented. However, in light of the specific facts of Taylor's case, we cannot say that this particular appeal leaves us “firmly convinced” that an aspect of the trial, if not corrected, would result in one of...