State v. Finley

NO. 94-427

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

STATE OF MONTANA,

Plaintiff and Respondent,

v.

DANIEL FELIX FINLEY,

Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District,

In and for the County of Lake,

The Honorable C.B. McNeil, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William F. Hooks, Appellate Defender Office, Helena,

Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Cregg Coughlin,

Assistant Attorney General, Helena, Montana; Kim

Christopher, Lake County Attorney, Poison, Montana

Heard: December 19, 1995

Submitted: December 19, 1995

Decided: April 16, 1996

Filed:

Justice James C. Nelson delivered the Opinion of the Court

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.

ISSUES

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?

BACKGROUND

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 finger prints 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 al.l 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?

4

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 errerything 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 5 46-l&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 5 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.

DISCUSSION

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, 5 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. 1

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

7

legislature substantially amended the plain error statute. Section

46-20-701 (21, MCA,l 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 rights may be noticed on

appeal, if the alleged error was not objected to as

provided in 46-20-104, unless the defendant [convicted

person] establishes that the error was prejudicial as 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 person1 or his attorney and could not have

been ascertained by the exercise of reasonable diligence.

Montana's plain error statute uniquely restricts review of errors

not objected to at trial. See, e.g., Rule 52(b), Fed.R.Crim.P.;

Rule 52(b), North Dakota Rules of Criminal Procedure; Rule 615(a),

Illinois Supreme Court Rules; Rule 30.20, Missouri Rules of

Criminal Procedure

On the other hand, what might be referred to as the more

conventional, unrestricted doctrine of plain error review has an

extensive history in common law as well as in statute. The federal

judiciary and many state courts invoke the common law doctrine of

plain error to prevent manifest injustice. United States v.

Makhlouta (9th Cir. 1986), 790 F.2d 1400; United States v. Barcenas

(5th Cir. 1974), 498 F.2d 1110, cert. denied (19741, 419 U.S. 1036,

-

%e refer here to the 1995 version of the statute, which, with

the addition of the "[convicted person]" language is identical to

the version in effect at the time of Finley's trial in 1990.

8

95 s.ct. 521, 42 L.Ed.2d 312; Armstrong v. People (Co. 1985), 701

P.2d 17; Russell v. State (Neb. 1995), 531 N.W.2d 212; Mitchell v.

Class (S.D. 1994), 524 N.W.2d 860.

The United States Supreme Court adopted the common law

doctrine of plain error in order to correct errors that affect the

fundamental constitutional rights of defendants. Noting that the

doctrine of plain error "confers a discretion that may be exercised

at any time, no matter what may have been done at some other time,"

the Court stated that the doctrine is most appropriately invoked

when "rights are asserted which are of such high character as to

find expression and sanction in the Constitution or Bill of

Rights." Weems v. United States (1910), 217 U.S. 349, 362, 30

S.Ct. 544, 547, 54 L.Ed. 793, 796; see also United States v. Smith

(11th Cir. 1983), 700 F.2d 627, 633 (stating a court is more likely

to review errors of constitutional magnitude). Adoption of the

federal rules of criminal procedure ratified a federal appellate

court's inherent power to notice errors that are obvious, or would

seriously affect the fairness, integrity, or public reputation of

judicial proceedings. United States v. Atkinson (1936), 297 U.S.

157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555, 557.

State courts have also traditionally used this common law and

statutory doctrine of plain error to correct obvious, fundamental,

constitutional, or substantial errors. Whatever name a court

chooses to use for the doctrine, courts invoke plain error review

to correct error not objected to at trial but that affects the

fairness, integrity, and public reputation of judicial proceedings.

9

The particular facts and circumstances of each case drive the

applicability of I-he plain error doctrine. Barcenas, 498 F.2d at

1113.

Moreover, the power of such review is inherent in the

appellate process itself. Appellate courts have the inherent duty

to interpret the constitution and to protect individual rights set

forth in the constitution and necessarily have the correlative

authority to invoke the plain error doctrine in order to carry out

those duties. See Marbury v. Madison (18031, 5 U.S. (1 Cranch)

368, 386-87; Laurence H. Tribe, American Constitutional Law § 3-5,

at 21-34 (2 ed. 1987). This power to interpret the constitution

and to protect individual rights stems from the constitution being

the "fundamental and paramount law of the nation," that courts

recognize and apply. Marbury, 5 U.S. at 383. "[Tlhe federal

judiciary is supreme in the exposition of the law of the

Constitution." Cooper v. Aaron (1958), 358 U.S. 1, 18, 78 S.Ct.

1401, 1409, 3 L.Ed.Zd 5, 17. Similarly, a state's highest

appellate court is supreme in the exposition of the law of that

state's constitution. See State v. Leslie (1935), 100 Mont. 449,

454, 50 P.2d 959, 962 (the Montana Constitution "vests in the

courts the exclusive power to construe and interpret legislative

acts, as well as provisions of the Constitution."); State v. Toomey

(1958), 135 Mont. 35, 44, 335 P.2d 1051, 1056 ("the office of

interpreting legislative and constitutional provisions lies

exclusively in the courts").

10

Montana's Constitution vests the judicial power of the State

in the supreme court, district courts, justice courts, and such

other courts as provided by law. Art. VII, Sec. 1, Mont.Const.

"The supreme court has appellate jurisdiction and may issue, hear,

and determine writs appropriate thereto." Art. VII, Sec. 2,

Mont.Const. Thus, the Montana Supreme Court has the inherent power

and obligation to interpret the constitution, to protect individual

rights, and, correspondingly, to review lower court decisions and

actions for error.

This Court adopted the common law doctrine of plain error in

a civil case, Halldorson v. Halldorson (1977), 175 Mont. 170, 573

P.2d 169. Halldorson raised the constitutional issue of due

process. In Halldorson, the appellant argued that he was deprived

of due process of the law because the district court terminated the

trial and denied him his day in court. Halldorson, 573 P.2d at

171. The respondent argued that an objection raised for the first

time on appeal is not timely and therefore the appellant waived any

error by failing to object at trial. This Court noted that

although the doctrine of plain error had not been recognized in

Montana, it had nationwide recognition in both federal and state

jurisdictions. This Court adopted the plain error doctrine by

stating that:

Ordinarily errors not raised below will not be considered

on appeal, however this rule is subject to the exception

that when the question is raised for the first time on

appeal it relates to the fundamental rights of the

parties. . . In adopting the "plain error" doctrine we

believe that appellate courts have a duty to determine

whether the parties before them have been denied

substantial justice by the trial court, and when that has

11

occurred we can, within our sound discretion, consider

whether the trial court has deprived a litigant of a fair

and impartial. trial, even though no objection was made to

the conduct during the trial.

Halldorson, 573 P.2d at 171.

In subsequent criminal cases, this Court has invoked the

common law plain error doctrine to review claims of plain error and

has, in other cases, declined to review claimed plain error based

on the requirements of Montana's plain error statute.

Unfortunately, we have not always done so in a consistent or

particularly understandable fashion. Without going into each case,

which is unnecessary to our decision here, we note, for example,

that in State v. Wilkins (19871, 229 Mont. 78, 746 P.2d 588, a case

involving the criminal sale of dangerous drugs, we observed that as

a general rule, this Court will not entertain issues not raised at

trial. However, we further noted that general rules are not

without exception and that appellate courts may invoke the doctrine

of plain error to prevent manifest injustice. Wilkins, 746 P.2d at

589. In Wilkins, this Court limited the application of the plain

error doctrine to those cases where it is necessary to insure a

fair and impartial trial. While this interpretation of the common

law doctrine of plain error is compelling, the Court failed to

discuss 5 46-ZO-701(2), MCA, as substantially amended four years

prior to our decision. Accordingly, Wilkins does not serve as

particularly persuasive support for the continued existence of

common law plain error review in the face of the restrictive

requirements of § 46-20-701(2), MCA.

12

,‘

In State v. Voegele (19901, 243 Mont. 222, 793 P.zd 832, the

defendant pleaded guilty to his third offense DUI. The Missoula

county Attorney's office petitioned for revocation of the

defendant's probation. The defendant made no objection to the

petition, and the defendant admitted the violations of his

probation. The defendant's appellate counsel appealed, contending

that defendant's suspended sentence had expired when the petition

to revoke was filed, thus the district court did not have

jurisdiction over the matter. The State countered that absent

objection below, the defendant was barred from challenging the

court's jurisdiction. The defendant acknowledged that he could not

meet the requirements of 5 46-20-701(2), MCA. We held that

discretionary review under the plain error doctrine provides a

remedy to prevent manifest injustice and will only be used in

exceptional cases. Voesele, 793 P.2d at 834. Because the

jurisdictional error in Voeqele was simply one of arithmetic, we

invoked the plain error doctrine. The Court employed sound

reasoning, but relied on Wilkins as authority.

In contrast, in State v. Rodgers (19931, 257 Mont. 413, 849

P.2d 1028, we chose not to invoke the plain error doctrine when the

defendant asserted that the State engaged in prosecutorial

misconduct. The defendant argued that despite his failure to raise

any objections at the trial level, prosecutorial misconduct denied

him his right to a fair trial as guaranteed by the Sixth Amendment

of the United States Constitution and Article II, section 24 of the

Montana Constitution. We restated our previous disapproval of the

13

prosecutor's characterizing the testimony of a witness as lies.

However, we held that § 46-20-701(2), MCA, precluded us from

considering an alleged error on appeal unless a timely objection

had been made at trial, or unless the statutory criteria of § 46-

20-701(2), MCA, had been met. Nevertheless, while we stated that

a rule requiring objections at the trial level gives the trial

court an opportunity to rule on the alleged error and gives the

trial court the opportunity to correct itself, we also recognized

our inherent power of discretionary review, and chose not to

foreclose the option of invoking the plain error doctrine in a

future case involving prosecutorial misconduct. Rodgers, 849 P.2d

at 1032; see also State v. Arlington (l-994), 265 Mont. 127, 875

P.2d 307.

In Arlinqton, although the defendant did not contemporaneously

object to the prosecutor's alleged misconduct, he requested this

Court to review the alleged error under the plain error doctrine.

We held that the case did not represent the exceptional case

envisioned to invoke the plain error doctrine and concluded that

there was no evidence of any prosecutorial misconduct, much less

plain error. Arlinqton, 875 P.2d at 322.

Given the history of our application of common law plain error

review and application of § 46-20-701(2), MCA, in criminal cases,

it is appropriate and necessary that we articulate an

understandable rationale and rule for this and future cases. While

we acknowledge the constraints of § 46-20-701(Z), MCA, we also

recognize our inherent power and paramount obligation to interpret

14

Montana's Constitution and to protect the various rights set forth

in that document. Accordingly, we 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. In so holding, we do not

rely on Halldorson, Wilkins, or their progeny, but rather on our

inherent power of appellate review under Montana's Constitution.

Moreover, given the legislature's obvious intention to restrict the

use of plain error review by its enactment of § 46-20-701(2), MCA,

we will henceforth use our inherent power of common law plain error

review sparingly, on a case-by-case basis, and we will invoke that

doctrine only in the class of cases aforementioned. In so doing,

we reemphasize the necessity for contemporaneous objections to

claimed error, and we caution counsel that, except in the class of

cases mentioned, the provisions of § 46-20-701, MCA, will be

applied in the absence of contemporaneous objection.

In the instant case, we conclude that Finley’s claims of error

implicate his right to due process of law and his privilege against

self-incrimination, both undeniably fundamental constitutional

rights. Given the importance of the legal issue raised and

notwithstanding Finley's failure to contemporaneously object or to

15

bring his claims of error within 5 46-20-701(2), MCA, our failure

to review such claims may leave unsettled a question as to the

fundamental fairness of his trial.

With that in mind, we next determine whether the prosecutor's

comments violated Finley's right to due process of the law under

the Fourteenth Amendment of the United States Constitution and

Article II, section 17 of the Montana Constitution and his

privilege against self-incrimination under the Fifth Amendment of

the United States Constitution and Article II, section 25 of the

Montana Constitution. Finley argues that the prosecutor's cross

examination and closing argument impermissibly commented on his

postarrest silence and thus violated his right to due process of

the law as set forth in Doyle v. Ohio (19761, 426 U.S. 610, 96

s.ct. 2240, 49 L.Ed.2d 91, and his privilege against self-

incrimination. The State counters that Doyle is not applicable to

the instant case because the record does not establish that the

police advised Finley of his Miranda rights. The State also argues

that a Fifth Amendment privilege against self-incrimination

analysis does not apply in general to a prosecutor's comments on

post-Miranda silence much less to Finley's postarrest silence.

In Doyle, the United States Supreme Court discussed the issue

of whether a state prosecutor may seek to impeach a defendant's

exculpatory story told for the first time at trial, by ccoss-

examining the defendant about his or her failure to tell the story

after receiving Miranda warnings at the time of arrest. Dovle, 426

U.S. at 616-17. The United States Supreme Court held that:

16

While it is true that the Miranda warnings contain no

express assurance that silence will carry no penalty,

such assurance is implicit to any person who receives the

warnings. In such circumstances it would be fundamentally

unfair and a deprivation of due process to allow the

arrested person's silence to be used to impeach an

explanation subsequently offered at trial.

Dovle, 426 U.S. at 618

The crux of the Court's reasoning in Doyle was the defendant's

reliance on the Miranda warnings and the government's assurance

that the defendant's silence would carry no penalty. For that

reason, in Fletcher V. Weir (1982), 455 U.S. 603, 102 S.Ct. 1309,

71 L.Ed.2d 490, the United States Supreme Court held that "[iln the

absence of the sort of affirmative assurances embodied in the

Miranda warnings, we do not believe that it violates due process of

law for a State to permit cross-examination as to postarrest

silence when a defendant chooses to take the stand." Fletcher, 455

U.S. at 607.

In Fletcher, the Court distinguished Doyle, noting that the

record in Fletcher did not indicate that the defendant received any

Miranda warnings, whereas in Doyle, the government induced silence

by implicitly assuring the defendant that his silence would not be

used against him. The Court was unwilling to broaden the Doyle

analysis to an instance where the record did not support a

conclusion that the police gave the defendant his Miranda rights.

Fletcher, 455 U.S. at 605-06.

Similarly, in State v. Sadowski (19911, 247 Mont. 63, 76, 805

P.2d 537, 545, this Court chose not to broaden the Doyle analysis

to include comments made on prearrest silence, i.e., before Miranda

17

warnings were given. We reasoned that Dovle was "based on

principles of fundamental fairness that a defendant's silence after

receipt of governmental assurances [would] not be used against

him." Sadowski, 805 P.2d at 545 (citing State v. Furlong (1984),

213 Mont. 251, 258, 690 P.2d 986, 989). In Sadowski, this Court

also held that there was no plain error or Doyle violation where

the defense opened the door for the prosecutor's questioning on

defendant's post-Miranda silence when the defendant raised the

issue of his earlier silence and characterized it as proof of his

innocence, and where he failed to object to the State's reference

to that same silence, but then alleged that admission of such

evidence constituted plain reversible error. Sadowski, 805 P.2d at

546.

In Furlonq, the defendant argued that the prosecutor's

comments regarding the defendant's silence at the time of arrest,

denied him due process of the law. We held that the Doyle analysis

applied to and prohibited the State from seeking to impeach a

defendant's exculpatory statement, told for the first time at

trial, by commenting on the defendant's post-Miranda silence.

Furlonq, 690 P.2d at 989. In so holding, this Court reasoned that

the Doyle analysis does not, however, apply to prearrest silence

where the defendant has not been assured of the right to remain

silent. Furlonq, 690 P.2d at 989.

In the instant case, the record does not support a conclusion

that Finley received any Miranda warnings. Therefore, without

evidence supporting that he was assured of his right to remain

18

silent and a subsequent penalty for asserting that right, we hold

that there was no Do_yle error here.

Finley also contends, however, that the prosecutor's comments

on his failure to give his exculpatory statements until trial,

violated his privilege against self-incrimination under the Fifth

Amendment of the United States Constitution, applicable to the

states through the Fourteenth Amendment, and under Article II,

section 25 of the Montana Constitution. The State contends that no

United States Supreme Court opinion supports Finley's claim that

adverse comments on post-Miranda silence violate the Fifth

Amendment privilege against self-incrimination.

In Dovle, the defendants argued not only that the state

violated their rights to due process but also argued that the state

violated their Fifth Amendment privileges against self-

incrimination. Dovle, 426 U.S. at 626. The majority of the Court

found it unnecessary to reach the additional issue of defendant's

privilege against self-incrimination. In his dissenting opinion,

joined by Justices Blackmun and Rehnquist, Justice Stevens

expressed no doubt of the propriety of the cross examination of the

defendant's failure to mention the purported "frame" at the time of

arrest, but noted that the questions regarding defendant's failure

to generally mention the "frame" before trial presented a more

difficult question. Nonetheless, he opined that following current

United States Supreme Court jurisprudence, a state court is free to

"regard the defendant's decision to take the stand as a waiver of

his objection to the use of his failure to testify at an earlier

19

proceeding or his failure to offer his version of the events prior

to trial." Doyle, 426 U.S. at 628-33.

In Jenkins v. Anderson (1980), 447 U.S. 231, 100 S.Ct. 45, 62

L.Ed.Zd 30, the United States Supreme Court considered the question

of whether "the use of prearrest silence to impeach a defendant's

credibility violates either the Fifth or Fourteenth Amendment to

the Constitution." Jenkins, 447 U.S. at 232 (emphasis added). In

Jenkins, the prosecutor attempted to impeach the defendant's

credibility by suggesting that the defendant would have spoken out

if he had in fact killed in self defense. The Court noted that

“[tl he Fifth Amendment guarantees an accused the right to remain

silent during his criminal trial, and prevents the prosecution from

commenting on the silence of a defendant who asserts the right."

Jenkins, 447 U.S. at 235. In Jenkins, the defendant did not remain

silent throughout the criminal proceeding, but instead voluntarily

took the witness stand in his own defense. The Court held that

inquiry into prior silence may be proper because the immunity from

giving testimony is one which the defendant may waive by offering

himself or herself as a witness. Jenkins, 447 U.S. at 235 (citing

Raffel v. United States (1926), 271 U.S. 494, 46 S.Ct. 566, 70

L.Ed. 1054). The Court concluded that the use of prearrest silence

to impeach a criminal defendant's credibility does not violate the

Fifth Amendment because the defendant is subject to cross

examination impeaching his credibility just like any other witness.

Jenkins, 447 U.S. at 237-38.

20

Here the prosecutor's comments regarding Finley's postarrest

silence are similar to the prosecutor's comments regarding the

defendant's prearrest silence in Jenkins because the comments were

made before Finley was advised of any Miranda rights. In fact, the

record here, does not show that Finley was ever advised of his

Miranda rights. Finley voluntarily chose to take the stand, and as

such, his credibility was subject to impeachment just like any

other witness. While our opinion here should not be read as

condoning the prosecutor's comments, in this instance where the

record does not support a conclusion that Finley was advised of his

Miranda rights, the comments did not infringe on his privilege

against self-incrimination under either the Fifth Amendment or

under Article II, section 25 of Montana‘s Constitution.

After reviewing the claimed violation of Finley's fundamental

constitutional rights under the plain error doctrine, we conclude

that the comments made by the prosecutor did not implicate Dovle

error nor did such comments infringe upon Finley's privilege

against self-incrimination

2. Did the District Court err in failing to conduct a hearing on

Finley's complaints about the effectiveness of his counsel's

representation?

Finley argues that when he filed a pro se motion for change of

venue, the District Court erred in not conducting a hearing on

Finley's complaints about the effectiveness of his counsel set

forth in his motion. The State argues that a district court's duty

to inquire into the adequacy of counsel extends only to motions for

21

substitution of counsel and that Finley's pro se motion sought a

change of venue, not dismissal or substitution of counsel.

We have held that we look to the substance of the motion, not

simply its title. Miller v. Herbert (1995), 272 Mont. 132, 136,

900 P.2d 273, 275. "The legal effect of any court-filed paper --

be it a motion, a pleading or some other instrument -- is to be

measured by its content rather than by the author-provided title."

Hulsey v. Mid-America Preferred Insurance Company (Okl. 1989), 777

P.2d 932, 936 n. 14.

In the instant case, Finley filed a pro se motion titled as a

motion for change of venue. However, the substance of the motion

indicates that Finley was in fact complaining about the assistance

of his counsel. Finley listed six reasons for his motion. In his

reason number one, he complained that: "The accused does not feel

comfortable and confident with the council [sic] [B.A.], accused

feels he's not getting the Effective [sic] representation from

[B.A.] (I In his reason number three, Finley complained that

"Council [sic] has mentioned that he's worked for Lake Co. for two

year's and has had no win's during his term in this office." And

finally in his reason number four, Finley stated that he was told

that there would be an investigation in this case on his behalf and

that he felt that it was too late in the case to have an

investigation on his behalf because the victims had a long time to

get their statements straight. Under the circumstances, Finley's

motion contained sufficient indicia that it was in substance a

motion complaining of ineffective assistance of counsel, and we

22

will treat it as such. Finley contends that the District Court

should have inquired into the validity of his complaints. We

agree.

In State v. Morrison (1993), 257 Mont. 282, 284, 848 P.2d 514,

516, this Court discussed whether a district court erred in failing

to hold a hearing regarding appellant's request for appointment of

substitute counsel. The defendant in Morrison wrote to the

district court approximately four months before trial complaining

that his counsel had not yet spoken to him to prepare for his

defense. The court ordered counsel to speak with the court and the

defendant regarding the complaint. Defendant did not raise any

other complaints until the sentencing hearings. At that time, he

again complained of the lack of communication between himself and

his attorney. Morrison, 848 P.2d at 516-17. We noted that a

defendant has the right to "a meaningful client-attorney

relationship." Morrison, 848 P.2d at 516 (citing State v. Enright

(1988), 233 Mont. 225, 229, 758 P.2d 779, 782). "Upon a showing of

a seemingly substantial complaint about counsel, the district court

should conduct a hearing to determine the validity of the

defendant Is claim." Morrison, 848 P.2d at 516.

In determining if defendant presented a seemingly substantial

complaint about counsel, it follows that the district court must

make an adequate inquiry into the defendant's complaints. In

Morrison, we held that the defendant failed to present seemingly

substantial complaints about his counsel and further that the

district court made a sufficient inquiry into defendant's

23

complaints. Morrison, 848 P.Zd at 517. HOWeVer, in Enriqht, where

the defendant was forced to choose between proceeding with

ineffective assistance of counsel or proceeding pro se, we held

that the district court's failure to conduct a hearing on

defendant's seemingly substantial complaints inhibited informed

appellate review. Enriqht, 758 P.2d at 782.

In determining whether Finley presented seemingly substantial

complaints about the effectiveness of his counsel, the District

Court should have inquired into the complaints and made some sort

of a critical analysis at the time the motion was filed. The

District Court failed to make an initial determination of whether

Finley presented substantial complaints in his pro se motion, and

accordingly erred in that respect. However, in this case, the

District Court corrected its error by conducting a post-trial

hearing on Finley's complaints regarding his counsel's

representation. Accordingly, we conclude that the District Court's

failure to hold a hearing at the time that Finley filed his pro se

motion was harmless. See State v. Mix (1989), 239 Mont. 351, 356-

57, 781 P.2d 751, 754.

3. Did the District Court err by failing to appoint counsel to

represent Finley during a post-trial hearing on counsel's

effectiveness?

Finley contends that the District Court denied him his right

to counsel's undivided loyalty by failing to appoint counsel to

represent him in the post-trial hearing on his counsel's

effectiveness. Specifically, Finley argues that the District Court

should not have allowed Finley's counsel to confront him regarding

24

the sufficiency of his allegations and then take the stand and

rebut those allegations. The State counters that Finley did not

challenge the District court ' s resolution of his complaints

regarding the assistance of his counsel; that he, therefore, waived

his right to appeal his counsel's conflict in loyalty; and that he

"chose" to have the same counsel represent him though the

sentencing hearing.

Additionally, Finley argues that because the District Court

treated the post-trial hearing as a postconviction hearing, it had

a duty pursuant to § 46-Zl-201(2), MCA, to appoint counsel for

Finley. However, the State correctly notes in this regard that a

postconviction hearing is a separate proceeding, available after a

defendant has been sentenced, and applicable where there is no

adequate remedy of appeal. See 5 46-21-101, MCA. Moreover, § 46

21-201(2), MCA, was enacted in 1991, and therefore did not apply to

the post-trial hearing held in April of 1990. Accordingly, we

reject Finley's contention that he was entitled to appointment of

counsel under § 46-21-201(Z), MCA.

That does not end our inquiry, however. At the outset, we

note that a trial court's decision whether to grant a motion for

substitution of counsel is discretionary and will not be overturned

on appeal absent a showing of abuse of discretion. Morrison, 848

P.2d at 516. On the facts here, we conclude that the trial court

abused its discretion in not appointing counsel to represent Finley

at the post-trial hearing.

25

The Sixth Amendment of the United States Constitution and

Article II, section 24 of the Montana Constitution guarantee a

criminal defendant the right to effective assistance of counsel.

This right is comprised of two correlative rights, the right to

counsel of reasonable competence and the right to counsel's

undivided loyalty. State v. Christenson (1991), 250 Mont. 351,

355, 820 P.2d 1303, 1306 (citing McMann v. Richardson (1970), 397

U.S. 759, 770-71, 90 S.Ct. 1441, 1448-49, 25 L.Ed.2d 763, 773; and

Wood v. Georgia (1981), 450 U.S. 261, 271-72, 101 S.Ct. 1097, 1103-

04, 67 L.Ed.2d 220, 230).

The duty of loyalty is perhaps the most basic of counsel's

duties, and breach of that duty is therefore accorded a presumption

of prejudice if the defendant is able to show that (1) counsel

actively represented conflicting interests, and (2) that an actual

conflict of interest adversely affected counsel's performance.

Christenson, 820 P.2d at 1306. Therefore, if a trial court

determines that the defendant and his counsel have a conflict so

great that it results in a total lack of communication or if

counsel fails to render effective assistance, new counsel should be

appointed. State v. Zackuse (1991), 250 Mont. 385, 385, 833 P.2d

142, 142.

Moreover, a criminal defendant's right to counsel arises at

every critical stage of the proceedings against him. United States

v. Wadsworth (9th Cir. 1987), 830 F.2d 1500, 1510 (citing Coleman

v. Alabama (19701, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387).

This Court has defined a critical stage in a proceeding as "any

26

step of the proceeding where there is potential substantial

prejudice to the defendant." State v. Robbins (1985), 218 Mont.

107, 111, 708 P.2d 227, 231.

In Robbins, the defendant contended that the district court

did not appoint counsel for him prior to his arraignment and

therefore denied his right to assistance of counsel during a

critical stage of the proceedings against him. Robbins, 708 P.2d

at 230. We noted that a defendant may challenge a district court's

failure to provide counsel in any critical stage of the proceedings

where potential substantial prejudice inheres in the absence of

counsel. Robbins, 708 P.2d at 230.

Similarly, in Wadsworth, the defendant argued that the

district court abused its discretion by refusing to grant his

motion for substitution of counsel. During a hearing on the

competency of the defendant's counsel, counsel defended his own

actions when he should have represented the defendant by dedicating

his sole efforts to the effective representation of his client's

interests. Wadsworth, 830 F.2d at 1506. At the hearing, the

district court asked the defendant to explain to the court what he

felt was inadequate about his counsel. The district court then

asked defendant's counsel to present his viewpoint on the matter.

Wadsworth, 830 F.2d at 1507. The Ninth Circuit Court of Appeals

concluded that the proceeding conducted by the district court on

the defendant's motions resulted in the denial of the defendant's

right to counsel at that hearing because the defendant was entitled

to counsel at that critical stage of the proceedings against him.

27

Wadsworth, 830 F.2d at 1511. The Court of Appeals held that "the

district court should have suspended the proceedings and appointed

an attorney for the defendant at the competency of counsel hearing,

as soon as it became apparent that [counsel] had taken an

antagonistic position on a matter concerning his client's right to

counsel and to prepare for trial." Wadsworth, 830 F.2d at 1511.

In the instant case, Finley's right to counsel attached at the

post-trial hearing in which the District Court asked him to explain

his complaints and then allowed his counsel to take the stand and

rebut Finley's allegations. The potential for substantial

prejudice to Finley existed at the post-trial hearing qualifying

the hearing as a critical stage in the proceedings. Thus, Finley

had a constitutional right to counsel at the post-trial hearing on

his complaints of ineffectiveness of counsel.

In effect, Finley was without counsel at this point in the

proceedings because his own attorney testified against him. We are

not persuaded by the State's argument that Finley had to make a

contemporaneous objection to his counsel's testimony or waive the

right to appeal the issue. It is ludicrous to expect Finley, who

was not representing himself as a pro se defendant, to have had the

knowledge or wherewithal to object and therefore contradict the

District Court and his counsel, especially where, as here, our

review of the record demonstrates that he was clearly intimidated.

Moreover, Finley's "choice" to proceed at sentencing with the

counsel who had just testified against him or to represent himself,

pro se was in reality, no choice at all. See Enriqht, 758 P.2d

782. The District Court erred by failing to appoint an attorney

for Finley at the post-trial hearing when it became apparent that

counsel was taking an antagonistic position toward his client. A

conflict of interest such as the one present here, where counsel

takes the stand in opposition to his client and to rebut his

client's allegations of ineffectiveness, renders the assistance of

that counsel ineffective for purposes of that proceeding. The

District Court should have determined that Finley and his counsel

had a conflict so great that Finley should be appointed new

counsel, at least for purposes of the competency hearing. Because

a presumption of prejudice extends to conflicts such as the one

between Finley and his counsel, we conclude that the District Court

abused its discretion by failing to appoint counsel to represent

him at the post-trial hearing under the circumstances here.

Since Finley did not have effective assistance of counsel at

the post-trial hearing, we conclude that it is appropriate that the

trial court appoint him new counsel and rehear his claims of

ineffectiveness, and we remand for further proceedings in this

regard.

4. Did the District Court err in deferring determination of

Finley's status as a dangerous or non-dangerous offender?

We address this issue and issue five in the event that after

rehearing the trial court determines Finley's claims of ineffective

assistance of counsel not to be meritorious. In that event, the

court will nonetheless have to correct its sentencing order in

accordance with this opinion.

29

Finley argues that the District Court did not have the power

to defer determination of his status as a dangerous or non-

dangerous offender because at the time he was charged, Montana's

statutory scheme did not allow the District Court this option. The

State counters that 5 46-18-404, MCA, in effect at the time of

Finley's sentencing, grants the District Court the authority to

defer its determination to designate the defendant dangerous or

non-dangerous. Neither Finley nor the State are correct.

A district court has broad discretion to determine appropriate

punishment. State v. Hembd (1992), 254 Mont. 407, 411, 838 P.2d

412, 415. Moreover, district courts have broad discretion in their

sentencing decisions. State v. Alexander (19941, 265 Mont. 192,

203, 875 P.2d 345, 352. Nevertheless, " [wle have long held that a

district court has no power to impose a sentence in the absence of

specific statutory authority." State v. Hatfield (1993), 256 Mont.

340, 346, 846 P.2d 1025, 1029.

We have also held that the law in effect at the time of the

commission of the crime controls as to the possible sentence.

State v. Stevens (Mont. 1995), 904 P.2d 590, 592, 52 St.Rep. 1078,

1079 (citing State v. Azure (1978), 179 Mont. 281, 282, 587 P.2d

1297, 1298). In Azure, the defendant appealed from a sentence

imposed on him following conviction of mitigated deliberate

homicide. Azure, 587 P.2d at 1298. The sole issue on appeal was

whether a statute not in force at the time the offense was

committed was ex post facto as applied to defendant. The statute

at issue eliminated or delayed a defendant's parole eligibility

30

after a criminal offense had been committed. In Azure, we held

that the application of statutes enacted after the offense had been

committed was ex post facto. AZLUZ

, 587 P.Zd at 1298 (citing State

v. Gone (19781, 179 Mont. 271, 587 P.2d 1291).

In State v. Suiste (1993), 261 Mont. 251, 255, 862 P.2d 399,

402, we held that the defendant was entitled to be sentenced under

the statute applicable at the time of his original sentencing.

Consequently, we remanded for sentencing under the statute in

effect at that time. Similarly, in Rose v. McCormick (1992), 253

Mont. 347, 349, 834 P.2d 1377, 1378, we held that the statute in

effect at the time of sentencing was the applicable statute. Given

our decision in Azure, neither Suiste nor Rose were correct in

stating that the applicable statutes were those in effect at the

time of nsentencing." However, in both Suiste and Rose, the

statutes in effect at the original sentencings were the same

statutes that were in effect at the time the crimes were committed.

Thus we reached the correct result in both cases.

In the instant case, Finley committed the offenses in question

on August 20, 1989. At that time, 5 46-18-404, MCA, did not grant

the District Court authority to defer determination of Finley's

dangerous or non-dangerous offender status. In 1989, the

legislature amended 5 46-18-404, MCA, to provide "[iIf an offender

is given a probationary sentence that is subsequently revoked, the

court may make the determination of whether the offender is a

dangerous or non-dangerous offender at the time of the revocation

proceeding." This amendment, however, did not become effective

31

until October 1, 1989. Accordingly, under the version of § 46-18.

404, MCA, in effect when Finley committed his crimes, the District

Court had no authority to defer determination of Finley's status as

a dangerous or non-dangerous offender. Therefore, the District

Court erred in deferring its determination of Finley's status as a

dangerous or non-dangerous defender, and we reverse this portion of

Finley's sentence

5. Did the District Court err in reserving its determination of

Finley's parole eligibility?

Finley also contends that the District Court did not have

statutory authority under § 46-18-202, MCA, to reserve the right to

restrict his eligibility for parole. The State agrees that the

District Court was not authorized to reserve the right to restrict

Finley's parole eligibility. Therefore, we reverse on this issue

as wells

Affirmed in part, reversed in part, and remanded for further

Justices

32

Justice Karla M. Gray, specially concurring.

I concur in the Court's opinion on issues two through five.

I specially concur in that opinion on issue one by agreeing with

the result reached, namely that the issue does not present

reversible reviewable error. I also agree with the Court's

analysis and resolution of the Dovle-related question contained in

issue one. I disagree entirely that the Dovle question is

reviewable under the common law plain error doctrine and with the

Court's plain error analysis.

It is my view that this Court's clear duty is to apply § 46-

20-701(2), MCA, as duly enacted by the Montana Legislature, unless

and until a constitutional challenge to that statute is mounted and

succeeds. No such challenge is presented in this case. As a

result, we are obligated to apply § 46-20-701(2), MCA, as written.

Rather than do so, the Court continues down the erroneous and

confusing path it charted long ago of relying on the statute when

the statute suits us and falling back on the common law plain error

doctrine when we do not desire to be bound by the statute. Such a

path is, in my view, legal error; it also at least suggests to

attorneys and the public that this is a result-oriented Court; and

finally, it creates inconsistency and instability in the law,

leaving practitioners at a loss as to the applicable law. I cannot

join my brethren on such a path.

I appreciate the Court's candor in setting forth some of the

shortcomings of our earlier cases addressing the common law plain

error doctrine and/or § 46-20-701, MCA. I applaud the Court's good

33

faith effort to limit the damage it creates through its journeys

down this path by "articulat[ingl an understandable rationale and

rule for this and future cases." I am unpersuaded, however, that

the "new" rationale and rule are any more understandable than the

"old;1' they do not appear to be any more limited.

The Court's "new" common law plain error doctrine permits us

to review, in our discretion,

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-ZO-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 intended clarity of this rule escapes me. Like the earlier

editions of the Court's plain error doctrine, this articulation

essentially seems to boil down to claimed errors affecting

jurisdictional or constitutional rights. The problem is that § 46-

20-701(2), MCA, permits us to review a "claim alleging an error

affecting jurisdictional or constitutional rights" to which no

objection was made w where the defendant establishes that the

error was prejudicial and one of the situations specified in § 46-

20-701(2) (a)-(c), MCA, exists. It is undisputed that none of those

situations exists in this case. Thus, it is my view that the

statute precludes our review of the Doyle-related claim raised here

on appeal.

I do not disagree with some of the Court's statements about

our authority under the Montana Constitution. However, the Montana

Constitution also divides the power of the government of this State

34

into three separate and distinct branches: legislative, executive,

and judicial. Art. III, Sec. 1, Mont.Const. In addition, it

provides that

[n]o person or persons charged with the exercise of power

properly belonging to one branch shall exercise any power

properly belonging to either of the others, except as in

this constitution expressly directed or permitted.

Art. III, Sec. 1, Mont.Const.

"The legislative power is vested in a legislature. .'I

Article V, Sec. 1, Mont. Const. The Legislature has exercised its

power to enact a statute; absent a successful constitutional

challenge to the propriety of that statute, we are obligated to

apply it. Instead, while stating its "acknowledg[ment of] the

constraints of § 46-20-701(2), MCA," the Court indulges in the

luxury of selectively quoting from the Constitution in order to

allow itself to continue to ignore a statute presumed valid in the

absence of a successful constitutional challenge. It is cases such

as these, and actions such as this, which rightly result in the

Legislature's anger, frustration and indignation with this Court.

35

Justice Charles E. Erdmann specially concurring.

I concur with Justice Nelson on Issues 2, 4, and 5. I join in

Justice Gray's special concurrence on Issue 1, and I specially

concur with Justice Nelson's holding on Issue 3 to emphasize what

I believe should be the narrow scope of its holding.

This Court has previously held that if a trial court

determines that the defendant and his counsel have a conflict so

great that it results in a total lack of communication, or if

counsel fails to render effective assistance, new counsel should be

appointed. State v. Zackuse (1991), 250 Mont. 385, 385, 833 P.2d

142, 142 (citing State v. Marts (1988), 233 Mont. 136, 139-40, 760

P.2d 65, 67; State v. Pepperling (1978), 177 Mont. 464, 472-73, 582

P.2d 341, 346).

In the present case, the District Court conducted a post-trial

hearing to determine the effectiveness of Finley's counsel. The

court asked Finley to explain his complaints about his lawyer and

then allowed Finley's counsel to take the stand and rebut the

allegations. I agree with Justice Nelson when he states that a

"conflict of interest such as the one present here, where counsel

takes the stand in opposition to his client and to rebut his

client's allegations of ineffectiveness, renders the assistance of

that counsel ineffective for purposes of that proceeding." I

therefore concur with the Court's opinion that the District Court

should have determined that Finley and his counsel had a conflict

of interest so great that Finley should have been appointed new

counsel, at least for the purpose of the competency hearing.

36

I write separately to emphasize that the Court's opinion

correctly qualifies its holding by stating that "lo111 the facts

-I we conclude that the trial court abused its discretion in not

here

appointing counsel to represent Finley at the post-trial hearing."

(Emphasis added.) This Court's long-standing rule for determining

when a district court should appoint new counsel when allegations

of ineffective assistance of counsel are made is set forth in

Zackuse and should remain intact. The Court's opinion should not

be read to require appointment of new counsel whenever an

allegation of ineffective assistance of counsel is made in district

court.

c?!Efzii;“’

Justice

-

37

Justice W. William Leaphart, dissenting.

Although I agree with the Court's analysis of the plain error

doctrine, I dissent from the Court's conclusion, under Issue 1,

that the prosecutor's comments about Finley's post-arrest silence

did not violate his rights under Art. II, Sec. 25, of the Montana

Constitution. The Court correctly cites State v. Jackson (19831,

206 Mont. 338, 348, 672 P.2d 255, 259, for the proposition that the

Montana constitutional privilege against self-incrimination

"affords no greater protection than that of the Federal

Constitution." Based upon the premise that Montana's

constitutional privilege against self-incrimination parallels that

of the United States Constitution, the Court concludes that it is

bound by the precedent of the United States Supreme Court to the

effect that prosecutorial comment on pre-arrest or post-arrest

(pre-Miranda) silence does not violate either the protection

against self-incrimination or due process of law. Fletcher v. Weir

(1982), 455 U.S. 603, 102 s.ct. 1309, 71 L.Ed.2d 490; Jenkins v.

Anderson (1980), 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86.

While I acknowledge that the Court has correctly cited our

precedent for the proposition that Montana's privilege against

self-incrimination affords no greater protection than the 5th

Amendment of the U.S. Constitution, I disagree with that premise.

I would overrule that line of authority and hold that Art. II, Sec.

25 of our Constitution, like Art. II, Sec. 10 (Right of Privacy)

and Sec. 11 (Freedom from unreasonable searches) is independent of

the U.S. Constitution and affords more protection than its federal

38

counterpart. See State v. Sierra (19851, 214 Mont. 472, 476, 692

P.2d 1273, 1276, in which we held:

A s long as we guarantee the minimum rights

guaranteed by the United States Constitution, we are not

compelled to march lock-step with pronouncements of the

United States Supreme Court if our own constitutional

provisions call for more individual rights protection

than that guaranteed by the United States Constitution.

In Sierra, we relied upon the Alaska decision in Reeves v. State

(Alaska 1979), 599 P.2d 727, and said: "The [Alaska] court noted as

we have done before, that their state constitutional guarantee

against unreasonable searches and seizures was broader in scope

than the Fourth Amendment to the United States Constitution."

Sierra, 692 P.2d at 1276. See also State v. Bullock (1995), 272

- -

Mont. 361, 901 P.2d 61 (involving Montana's Art. II, Sec. 10, right

of privacy).

We are no more compelled to "march lock-step with pronounce-

ments of the United States Supreme Court" concerning the 5th

Amendment right against self-incrimination than we are with that

Court's pronouncements concerning the 4th Amendment's right to be

free from unreasonable searches and seizures. Our decisions

holding that Art. II, Sec. 25, affords no more protection than does

the 5th Amendment offer absolutely no analysis in support of this

proposition. Rather, they are based upon our holding in State v.

Anderson (1970), 156 Mont. 122, 476 P.2d 780. Anderson, again

without any analysis or rationale, held that Montana's 1889

Constitution, Art. III, Sec. 18, "affords a defendant no greater

protection than the federal guaranty." Anderson, 476 P.2d at 782.

Anderson was decided two years prior to the adoption of our present

constitution in 1972 and thus offers no guidance in determining

39

whether the framers of the 1972 constitution intended to delegate

interpretation of the Montana Constitution entirely to the nine

Justices in Washington, D.C. I believe that the preferable

approach to interpreting our constitutional provision is reflected

in our decisions in Sierra and Bullock. That is, so long as we

guarantee the minimum rights guaranteed by the U.S. Constitution,

we are not only free but duty bound to interpret our parallel

provisions consistently with what we determine to have been the

intent of the framers of the 1972 Montana Constitution and the

citizens of the State of Montana.

Based upon my view that Art. II, Sec. 25, is broader than the

5th Amendment, I would then follow the lead of the Wyoming Supreme

Court in Westmark v. State (Wyo. 1984), 693 P.2d 220. In Westmark,

the Wyoming court held that the right against self-incrimination

under the Wyoming constitution was broader than the 5th Amendment;

that Westmark's right to remain silent was not dependent upon being

advised of that right through Miranda warnings or otherwise, and,

thus, a prosecutor's comments during cross-examination and closing

argument regarding Westmark's silence violated his right to remain

silent under the Wyoming Constitution. Westmark, 693 P.2d at 222-

23. The Wyoming court cited its prior decision in Clenin v. State

(Wyo. 1978), 573 P.2d 844, a case in which the record did not

indicate whether Clenin had been advised of his rights by the law

enforcement officer, for the following proposition:

The right of an accused to remain silent, however, under

Art. 1, § 11 of the Constitution of the State of Wyoming,

which provides: "No person shall be compelled to testify

against himself in any criminal case, * * * ,'I does not

depend upon his being advised of that right, but exists

by virtue of the constitutional language. Advice as to

40

that right by law enforcement officers or by the justice

of the peace or by the judge of the district court is

only for the purpose of expanding its protection by

assuring that the accused person is aware of it.

Clenin, 573 P.2d at 846. In Westmark, the Wyoming court concluded

that Art. 1, § 11, of the Wyoming Constitution "brings with it the

implicit assurance that silence will carry no penalty and therefore

it would be 'unfair and a deprivation of due process' to permit the

defendant's silence to be used to impeach his exculpatory testimony

offered at trial." Westmark, 693 P.2d at 222 (quoting Doyle v.

Ohio (1976), 426 U.S. 610, 618, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91,

98.

Without addressing the question of pre-arrest silence, I am of

the view that when, as here, a person is arrested, he becomes an

"accused" and his constitutional right to remain silent and not

incriminate himself is triggered regardless of whether he is

advised of his rights through Miranda warnings or otherwise. I am

not willing to concede that our right to remain silent does not

come into play unless we have been advised of that right. To the

contrary, the right not to incriminate oneself exists, not because

one has been advised of the right by a law enforcement officer or

government functionary, but because the right is spelled out in our

constitution. As the Wyoming court points out in Westmark, advice

as to the right merely expands its protection by assuring the

accused person is aware of the right. The right, however, is

carved in the stone of our constitution and, like the right to

freedom of speech or religion, it exists regardless of our

awareness or ignorance. If our citizens only have the benefit of

those constitutional rights of which they are aware, very few of

41

them would enjoy any constitutional protection at all. Presumed

ignorance, of course, is the very reason that Miranda warnings are

required before an accused person can be interrogated.

Here, the Court concludes that since Finley voluntarily chose

to take the stand, his credibility was subject to impeachment just

like any other witness. While I agree that Finley's testimony

offered at trial is subject to cross-examination, I do not agree

with the Court's equating of post-arrest silence with pre-arrest

silence or pre-arrest inconsistent statements as an impeachment

tool. Finley's choice to take the stand should not expose him to

impeachment for having remained silent at an earlier time when he,

as a post-arrest accused person, was under no obligation to speak.

Post-arrest silence is very different from pre-arrest silence. As

Justice Marshall pointed out in United States v. Hale (1975), 422

U.S. 171, 177, 95 S.Ct. 2133, 2136, 45 L.Ed.2d 99, 105, the

circumstances surrounding an arrest lead the defendant to silence.

At the time of arrest and during custodial interrogation,

innocent and guilty alike--perhaps particularly the

innocent--may find the situation so intimidating that

they may choose to stand mute. A variety of reasons may

influence that decision. In these often emotional and

confusing circumstances, a suspect may not have heard or

fully understood the question, or may have felt there was

no need to reply. See Traynor, The Devils of Due Process

in Criminal Detection, Detention, and Trial, 33 U.Chi.L.

Rev. 657, 676 (1966). He may have maintained silence out

of fear or unwillingness to incriminate another. Or the

arrestee may simply react with silence in response to the

hostile and perhaps unfamiliar atmosphere surrounding his

detention.

In Dovle the United States Supreme Court held that it would be

unfair to give Miranda warnings, including the right to remain

silent, and then impeach the defendant at trial with the silence

that was induced by the warning. Dovle, 426 U.S. 610. In my view,

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the government's actions in arresting a person are no less of an

inducement to silence than a Miranda warning, and the use of post-

arrest, pre-Miranda silence for impeachment gives rise to the same

unfairness that is the basis for the Dovle rationale.

Miranda warnings are not required where a suspect is simply

taken into custody. Rather, they come into play when the suspect

is subjected to custodial interrogation. Rhode Island v. Innis

(1980), 446 U.S. 291, 300, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297,

307. Thus, if the arresting officers wait a period of time after

the arrest before giving the Miranda warnings, the suspect's

silence during that interim time period (post-arrest, pre-Miranda)

will subject him to impeachment. If police officers give the

Miranda warnings at the time of arrest, which, although not legally

mandated, is the standard practice, that same silence, under Dovle,

can not be used to impeach. The Court's decision herein will thus

encourage law enforcement personnel to postpone the giving of

Miranda warnings in order to create a period of post-arrest, pre-

Miranda silence which can be used for impeachment.

It is ironic indeed when a person can be impeached for having

exercised his constitutional right to remain silent after having

been arrested. I would hold that the prosecutor's comments about

Finley's post-arrest silence violated his rights under Art. II,

Sec. 25, of the Montana Constitution and constituted prejudicial

error. In light of my views on Issue 1, I would not have to reach

Issues 2 through 5. If I were to address Issues 2 through 5, I

would concur with the views expressed in the Court's opinion.

Justices Terry N. Trieweiler and William E. Hunt, Sr., join in

the foregoing dissent of Justice W. William Leaphart.

J stice

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