State v. Finley

Decision Date16 April 1996
Docket NumberNo. 94-427,94-427
Citation276 Mont. 126,915 P.2d 208,53 St.Rep. 310
PartiesSTATE of Montana, Plaintiff and Respondent, v. Daniel Felix FINLEY, Defendant and Appellant.
CourtMontana Supreme Court

Joseph P. Mazurek, Attorney General, Cregg Coughlin, Assistant Attorney General, Helena; Kim Christopher, Lake County Attorney, Polson, for plaintiff-respondent.

NELSON, Justice.

Daniel Felix Finley (Finley) appeals from the judgment and commitment entered by the Twentieth Judicial District Court, Lake County, for sexual intercourse without consent and for burglary. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.


1. Did the prosecutor violate Finley's right to due process and privilege against self-incrimination by commenting on his postarrest silence and is this issue reviewable under the common law plain error doctrine?

2. Did the District Court err in failing to conduct a hearing on Finley's complaints about the effectiveness of his counsel's representation?

3. Did the District Court err by failing to appoint counsel to represent Finley during a post-trial hearing on counsel's effectiveness?

4. Did the District Court err in deferring determination of Finley's status as a dangerous or non-dangerous offender?

5. Did the District Court err in reserving its determination of Finley's parole eligibility?


On August 19, 1989, Finley and a friend went to a barbecue at Toni and T.J. Sias' home in Pablo, Montana. Finley had not met the hosts, Toni and T.J., prior to the party. Toni testified that Finley acted "flirty" around her during the course of the evening. After some of the guests left the Sias' home, Toni, T.J., Finley, and another guest went to Ronan to buy beer. Finley gave Toni money to buy the beer. On the ride back to Pablo, Finley sat in the back seat of the car and allegedly played with Toni's hair and touched her shoulder.

At around 3:00 a.m., August 20, 1989, Toni and T.J. gave Finley a ride to his cousin's house in Pablo. Toni and T.J. testified that they returned home at about 3:30 a.m., showered, made up a bed on the couch in the living room, had sex, and went to sleep. Toni testified that she woke up because someone was on top of her and because she was falling off the couch. She stated that a man other than her husband had penetrated her vagina with his penis. Toni testified that she recognized Finley as he pulled up his pants and ran out the door.

T.J. testified that he woke up in time to see the hanging plant near the back door swing as if someone had just brushed by it. T.J. then followed Finley out the back door. Toni found Finley's hat, wallet (including Finley's driver's license), comb, and some change on the floor. T.J. took the items to the tribal law enforcement office.

Toni noticed that the electricity had been turned off at the breaker box and that Finley had dropped his nail clippers on the floor. An officer from the Lake County sheriff's department arrived at the Sias' trailer, met with a tribal officer, and collected the evidence T.J. had given to the tribal officer. The Lake County sheriff's officer spoke with Toni and T.J. and reported that they were both very upset. Toni gave the sheriff's officer a statement describing the evening's events. The sheriff's officer found no clear fingerprints on the breaker box, but did find on the back door, a print matching Finley's left thumb.

On September 25, 1989, Finley was charged by information with burglary and with sexual intercourse without consent in the Twentieth Judicial District Court, Lake County, and counsel was appointed to represent him. On December 29, 1989, Finley filed, pro se, a motion for a change of venue in which he complained about the assistance of his counsel. The District Court denied Finley's motion without a hearing. At the jury trial on March 5 and 6, 1990, Finley testified that he went to a barbecue at the Sias' home and that at some point in the evening, he went to use the bathroom because he thought he was going to get sick, but because the bathroom was so dirty, he opened the back door instead. He further testified that he remembered kissing Toni and being interrupted by T.J.

On cross-examination, the prosecutor asked the following questions:

Q. Mr. Finley, you haven't made any prior statements in this case at all, right?

A. Prior statements?

Q. Written or recorded statements to anyone?

A. Nobody has asked me.

. . . . .

Q. Okay, And you've gotten to hear all the testimony in the case today and yesterday, right?

A. Yes.

Q. This is the first time you've gone forward and told your tale; is that right?

A. Yeah.

In his initial closing statement, the prosecutor commented that Finley chose to say nothing before or after being arrested, but instead came forth with this exculpatory statement for the first time at trial. The prosecutor commented:

The defendant gets on the stand and he says that--first of all, he listens to all of the evidence--and he doesn't have to make a statement. Then he comes in after he's heard everything and comes up with a story that he was invited back to the residence that night at 3:00 by two people who have never seen him before, with minor children there.

Finley's counsel did not make a contemporaneous objection to either the prosecutor's cross examination or to his closing comments. The jury found Finley guilty of burglary and sexual intercourse without consent.

After trial, Finley sent a handwritten letter to the Lake County Attorney's office accompanied with a statement from another inmate of the Lake County Jail. The documents contained the following assertions: counsel's representation was ineffective, counsel refused to discuss the terms of an appeal, and counsel refused to speak with Finley at all. On April 5, 1990, the State moved the District Court for a hearing on Finley's complaints of ineffective assistance of counsel. The District Court held a hearing wherein Finley's counsel examined the defendant and then testified in response to Finley's allegations. At the conclusion of the hearing, the District Court found that counsel had rendered effective assistance to Finley.

The District Court sentenced Finley to 20 years for each offense to run concurrently, with 5 years suspended. The District Court deferred its determination of Finley's status as a dangerous or non-dangerous offender under § 46-18-404(4), MCA, until such time as he might appear before the District Court for revocation of his suspended sentences. The trial court also reserved the right under § 46-18-202, MCA, to impose the restriction that Finley be ineligible for parole while serving his sentences in the event that he violated any condition of probation which resulted in revocation of his suspended sentence.

Finley's counsel did not file an appeal. Finley filed a pro se petition for postconviction relief alleging ineffective assistance of counsel for failure to perfect the appeal. On April 19, 1994, the District Court appointed the State Appellate Defender to represent Finley in his petition for postconviction relief. Subsequently, Finley moved to dismiss his petition for postconviction relief in the Lake County District Court in order to pursue a petition for postconviction relief with this Court. The District Court granted Finley's motion. Finley filed a petition for postconviction relief with this Court alleging that his trial counsel rendered ineffective assistance. On November 10, 1994, this Court granted an out-of-time appeal.

1. Did the prosecutor violate Finley's right to due process and privilege against self-incrimination by commenting on his postarrest silence and is this issue reviewable under the common law plain error doctrine?

Finley concedes that his counsel failed to contemporaneously object to the prosecutor's comments at trial and that he is not able to meet the requirements of § 46-20-701(2), MCA, Montana's plain error statute. However, he urges this Court to invoke its discretionary power of common law plain error review on the premise that his claims of error affected his substantial rights and denied him a fair trial. The State contends that because Finley does not meet the requirements of the plain error statute, this Court is without authority to review on appeal his claims of error under this issue. Accordingly, in this case we are faced squarely with the question of whether the doctrine of common law plain error review can continue to survive given the existence of Montana's plain error statute. We conclude that it can and must.

Statutorily, § 46-20-104, MCA, establishes the scope of appeal by a criminal defendant. Specifically, § 46-20-104(2), MCA, provides:

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). [Emphasis added.]

Section 46-20-701, MCA, was originally enacted in 1967, by the Montana Legislature, as a statutory exception to the legislative mandate that errors not objected to at trial would not be considered on appeal. As originally enacted, § 46-20-701, MCA, mirrored the federal plain error doctrine and, in essence codified the common law doctrine of plain error. Subsequently, in 1983, the legislature substantially amended the plain error statute. Section 46-20-701(2), MCA, 1 now provides:

(2) Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. No claim alleging an error affecting jurisdictional or constitutional...

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