State v. Daniels, 01-832.

• Decision Date: 18 September 2003
• Docket Number: No. 01-832.,01-832.
• Citation: 317 Mont. 331,77 P.3d 224,2003 MT 247
• Parties: STATE of Montana, Plaintiff and Respondent, v. Michael J. DANIELS, Defendant and Appellant.
• Court: Montana Supreme Court

77 P.3d 224

2003 MT 247

317 Mont. 331

STATE of Montana, Plaintiff and Respondent, v. Michael J. DANIELS, Defendant and Appellant.

No. 01-832.

Supreme Court of Montana.

Submitted on Briefs June 19, 2003.

Decided September 18, 2003.

For Appellant: Lawrence A. LaFountain, Attorney at Law, Great Falls, Montana.

For Respondent: Hon. Mike McGrath, Attorney General; Pamela P. Collins, Assistant Attorney General, Helena, Montana, Brant Light, Cascade County Attorney, Great Falls, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 The State charged Defendant Michael J. Daniels (Daniels) with one count of felony robbery in the Eighth Judicial District Court, Cascade County. After a jury trial, Daniels was convicted and the court sentenced Daniels to 45 years in prison with 10 years suspended. Daniels appeals his conviction. We affirm.

¶ 2 The issues on appeal are:

¶ 3 1. Did the State's comments during closing argument constitute plain error?

¶ 4 2. Did the District Court commit plain error when it permitted Alfred Joe Smith (Smith) to testify during Daniels' trial?

¶ 5 3. Did the District Court commit plain error when it gave Jury Instruction # 6?

¶ 6 4. Was Daniels' counsel ineffective for his alleged failure to interview potential defense witnesses and for his failure to object to certain evidence at trial?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 7 On or about February 18, 2000, 16-year-old Cole Tolliver (Tolliver) and his friend Gary Houser (Houser) were driving together after leaving a mutual friend's house at 11 p.m. in Great Falls. The pair decided to stop at Keith's Country Store to purchase something to drink. Tolliver pulled into the store parking lot and parked in the rear of the store. Houser went inside and Tolliver followed, but returned to his car when he realized he left his money there.

¶ 8 As Tolliver collected the money, two young men exited a nearby vehicle. One of the young men, who Tolliver later identified as Daniels, pointed a laser-sighted handgun at Tolliver and ordered him to get on the ground and give him all of his money. Tolliver got down and gave the money to him. Daniels took the money, and the two perpetrators returned to their car. The second man, who Tolliver later identified as Smith, visibly displayed a police scanner and warned Tolliver to not call the police or he would be killed. The men then drove away from the store and Tolliver did not obtain identification plate numbers for the assailants' vehicle. Houser returned from the store, and Tolliver told Houser about the assault as they drove away.

¶ 9 Later that evening, Tolliver returned home and told his parents about the robbery. Tolliver's parents insisted that he report the robbery to the police, but no one actually reported the robbery initially. Two days after the robbery, Tolliver went with his mother and reported the incident to the police. At the police station, Tolliver gave a description of the perpetrators to Officer Tito Rodriguez. Rodriguez then provided Tolliver with photos of potential suspects, and Tolliver identified Daniels and Smith as the perpetrators.

¶ 10 The Great Falls Police Department began searching for Daniels and Smith and considered them armed and dangerous. On February 21, 2000, Officers Hollis and Wells observed Daniels and Smith at the Holiday Village Mall. When Daniels and Smith saw the officers, they immediately left the mall.

¶ 11 On February 22, 2000, Detective Don Scheele (Scheele) met with Macedonia Mondragon (Mondragon). According to Scheele, Mondragon told him that she had seen Daniels and Smith with a laser-sighted pistol and a sawed-off shotgun.

¶ 12 On February 25, 2000, police apprehended Smith. Initially, he provided no statement to police. However, on September 14, 2000, Smith admitted that Daniels was with him during the robbery.

¶ 13 On February 29, 2000, police, acting on a tip that Daniels was hiding at Lisa Cole's (Cole) house, contacted Cole by telephone and requested permission to search her home. Cole agreed to the search and police arrived and searched her house. Police discovered Daniels, who was hiding inside a couch, and arrested him. At the time, Daniels denied his identity, stated his name was Moe, and stated the tattoo on his shoulder with the initials M.D. actually showed M.O. However, Daniels indicated to police that he had ingested drugs before the officers arrived and he started to vomit. The officers called an ambulance. Daniels was taken to the hospital, treated, and later released into police custody.

¶ 14 In custody, officers provided Daniels with a warning against self-incrimination, and Daniels decided to talk with the officers. Daniels stated that he was at the store with Jerri Matye (Matye), a friend, in a different car than Smith. He stated that Smith was also at the store in another car. Daniels said that Tolliver approached him outside the store and asked him to buy some beer for him, but Daniels declined the request because he was not old enough to buy beer. Daniels said that Tolliver then walked over to Smith's car and presumably made a similar request, at which point Tolliver gave Smith his money and then raised his hands as if being held at gunpoint. Daniels said he saw Smith drive away from the store parking lot. At that point, Daniels told Matye to leave the area, and Matye drove away.

¶ 15 In September 2000, Smith pled guilty to Tolliver's robbery. As part of the plea agreement, Smith agreed to provide a tape-recorded statement regarding the events of the robbery and agreed to testify truthfully against Daniels. Smith provided a statement and testified against Daniels at his first trial. He also testified at his change of plea hearing regarding his participation in the robbery. Smith testified that Daniels was present at the robbery, held a handgun, and demanded the money.

¶ 16 Daniels pled not guilty and the case went to jury trial on September 18 to 20, 2000. The first trial resulted in a hung jury. A retrial was held February 20 to 21, 2001. At the second trial, the State called Smith to testify. Smith testified that his prior testimony regarding Daniels' involvement in the crime was false in that the actual person who was with Smith at the time of the robbery was his cousin John Bearstone. Smith testified that John Bearstone, not Daniels, was responsible for the crime. Smith described John Bearstone as a Native American, 19 or 20 years old, six feet tall, with black hair.

¶ 17 The State then cross-examined Smith using his prior statements. The State also presented other testimony to rebut Smith's statements. Detective Beecroft testified that Smith had never previously mentioned John Bearstone's name when he talked to the police, and that after some investigation, Beecroft was unable to locate or identify any person by the name of John Bearstone. Beecroft did admit, however, that if John Bearstone lived outside of Great Falls or had no criminal record, he would probably not know who John Bearstone was.

¶ 18 After the State rested, Daniels did not call any witnesses. During closing argument, the prosecutor discussed Smith's change of testimony and the existence of "John Bearstone," stating:

Now [Smith's] got motive to try [to] implicate somebody who doesn't exist because he knows [we] can't go after an imaginary person. John Bearstone is general for Alfred Smith. It's convenient that he just mentioned his name for the first time today....

[John Bearstone's] an imaginary person... Detective Beecroft who's been the follow-up aversion on this case, looked for a John Bearstone, 19 or 20 years old, Native American male on the Blackfeet reservation. That's the reservation we got from Alfred Smith on the stand. There is no such person. We didn't find any such person.

Detective Beecroft works in narcotics, he knows the gangs. He knows the people in the gangs, knows their gang members and he knows who they associate with. That's his job, ladies and gentlemen. If this person were real, wouldn't you think that Detective Beecroft would have at least heard this name before?

Daniels' counsel did not object to the prosecutor's comments. ¶ 19 The jury found Daniels guilty. Daniels now appeals.

STANDARD OF REVIEW

¶ 20 Where the defendant raises the plain error doctrine to request our review of issues that were not objected to at the district court level, our review is discretionary. State v. Earl, 2003 MT 158, ¶ 25, 316 Mont. 263, ¶ 25, 71 P.3d 1201, ¶ 25. In State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215, overruled on other grounds by State v. Gallagher, 2001 MT 39, 304 Mont. 215, 19 P.3d 817, we held:

[T]his 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.

The plain error doctrine is to be employed sparingly, on a case-by-case basis, pursuant to the narrow circumstances articulated in Finley. Finley, 276 Mont. at 138, 915 P.2d at 215. In order to determine the applicability of the plain error doctrine, we consider the totality of circumstances of each case. State v. Brown, 1999 MT 31, ¶ 12, 293 Mont. 268, ¶ 12, 975 P.2d 321, ¶ 12.

¶ 21 We review claims of ineffective assistance of counsel following the standard set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Dawson v. State, 2000 MT 219, ¶ 20, 301 Mont. 135, ¶ 20, 10 P.3d 49, ¶ 20. Under the standard, a defendant must show both that the counsel's performance was deficient and that this performance prejudiced the defense and denied the defendant a fair trial such that the...