No. 86-358
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
STATE OF MONTANA,
Plaintiff and R-espondent,
-vs-
DANNY LEROY MARTIN,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mary Ann Sharon, Dillon, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Kimberly A. Kradolfer, Asst. Atty. General, Helena
Thomas R. Scott, County Attorney, Dillon, Montana
Submitted on Briefs: March 5, 1987
Decided: A p r i l 28, 1987
Filed:
APR 2 3 1987
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Mr. Martin appeals his conviction of burglary, felony
theft, and criminal mischief. The District Court for the
Fifth Judicial District, Beaverhead County, sentenced him to
20 years in prison, including 10 years as a persistent felony
offender. We affirm.
The issues are:
1. Did the District Court abuse its discretion when it
ruled that the State's fingerprint experts were qualified to
testify?
2. Does sufficient evidence corroborate the accomplice
testimony?
3. Did the District Court act improperly and in viola-
tion of Rule 614 (b) , M.R.Evid., when it asked certain ques-
tions during the trial?
4. Was Mr. Martin denied effective assistance of coun-
sel at sentencing?
In November 1984, a break-in occurred at Parkview Junior
High School in Dillon, Montana. A window panel was removed
on an outside door and the doorknobs on several classrooms
were smashed. The following day, school officials discovered
that a microwave oven, an undetermined amount of cash, and
several hand calculators were missing. The Dillon police
dusted the area for fingerprints.
James Reinke later confessed to the crime and implicated
defendant Mr. Martin. Mr. Reinke testified at Mr. Martin's
jury trial. The State also presented testimony by two expert
witnesses who identified as Mr. Martin's a fingerprint found
on a cash box in the school principal's office. Other per-
sons testified that Mr. Martin had no permissive or rightful
basis for being in the school. Mr. Martin presented testimo-
ny from a third expert witness, who contradicted the
prosecution's experts, stating that the fingerprint on the
cash box could not be matched to Mr. Martin's fingerprint.
The jury found Mr. Martin guilty.
At his sentencing hearing, Mr. Martin requested that his
court-appointed counsel be dismissed. The District Court
granted the request and proceeded with the hearing, with the
dismissed counsel remaining in the courtroom in a standby
capacity.
Did the District Court abuse its discretion when it
ruled that the State's fingerprint experts were qualified. to
testify?
Rule 7 0 2 , M.R.Evid., provides:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to under-
stand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge,
skill, experience, training, or education may
testify thereto in the form of an opinion or
otherwise.
Mr. Martin argues that the two police officers who testified
as the State's experts were not qualified as fingerprint
experts. He says their education and experience were too
limited to qualify them as experts in this field.
One of the police officers who testified on behalf of
the State had dusted for fingerprints at the school. He was
the assistant chief of police in Dillon. He testified that
he had received basic training at the Montana Law Enforcement
Academy. He had also completed 40 hours of training on
fingerprint classification and 40 hours of training in fin-
gerprint identification. He had testified as an expert in
three previous court proceedings. He had lifted from various
surfaces at the school approximately 2 0 fingerprints which he
thought might be of value. After Mr. Reinke confessed and
implicated Mr. Martin, the officer compared Mr. Martin ' s
fingerprints with the fingerprints taken from the school. He
demonstrated 12 points of comparison between Mr. Martin's
fingerprint and the print from the cash box at the school,
and testified that he concluded that the prints belonged to
the same person.
Mr. Martin presented testimony by his own expert wit-
ness. This witness had extensive fingerprint identification
experience. He was retired from the FBI and from the Montana
Identification Bureau, is a Certified Fingerprint Expert, and
has taught fingerprint identification at the Montana Law
Enforcement Academy. He testified that there were at least
13 inexplicable differences between the fingerprint from the
cash box and Mr. Martin's fingerprint.
The other police officer testifying as an expert witness
for the State appeared on rebuttal. He was also a Montana
Law Enforcement Academy graduate and had also taken classes
in fingerprint classification and latent identification. He
had also previously testified as an expert on fingerprint
identification. He testified that he had verified the first
officer's conclusion that the print taken from the cash box
at the school was Mr. Martin's.
The transcript shows that Mr. Martin's counsel did an
excellent job of bringing out to the jury the limited experi-
ence of the police officers in fingerprint identification as
compared with the extensive experience of the defense's
expert. The jury was presented with a clear conflict in the
evidence.
The determination that a witness is an expert is within
the discretion of the district judge and will not be dis-
turbed absent an abuse of discretion. Foreman v. Minnie
(Mont. 1984), 689 P.2d 1210, 1212, 41 St.Rep. 1478, 1480.
This Court has previously allowed police officers to testify
as experts in such areas as accident reconstruction. The
degree of a witness' qualifications affects the weight of the
expert's testimony, not its admissibility. State v. Berg
(Mont. 1985), 697 P.2d 1365, 1367, 42 St.Rep. 518, 520. The
jury was instructed that it could weigh any expert testimony
and reject it entirely if it concluded the opinion was
unsound.
We conclude that both of the State's witnesses had
sufficient training and experience to qualify them to testify
as experts on fingerprint identification. While their expe-
rience and training were not as extensive as that of the
defense's expert, the court properly left it within the
jury's province to weigh all of the expert testimony. We
hold that the District Court was within its discretion in
allowing the State's two witnesses to testify as experts.
I1
Does sufficient evidence corroborate the accomplice
testimony?
The testimony of Mr. Reinke, as an accomplice, must be
independently corroborated in order for Mr. Martin's convic-
tion to be upheld. Section 46-16-213, MCA, provides:
A conviction cannot be had on the testimony of one
responsible . . . unless the testimony is corrobo-
rated by other evidence which in itself and without
the aid of the testimony of the one
responsible ... tends to connect the defendant
with the commission of the offense. ...
The corroborating evidence presented by the State in this
case was the expert testimony regarding the fingerprint. Mr.
Martin says this is not sufficient because the fingerprint
and the testimony about it have no probative value.
Since Mr. Martin's argument is premised on his position
in Issue I, which we have rejected, his argument here fails.
We hold that the evidence regarding the fingerprint on the
cash box was sufficient to corroborate the testimony of Mr.
Reinke. The fingerprint evidence found under the circum-
stances of this case is sufficient to sustain a conviction.
State v. Lucero (Mont. 1984), 693 P.2d 511, 41 St.Rep. 2509;
People v. Ray (Colo. 19811, 626 P.2d 167-
Did the District Court act improperly and in violation
of Rule 614 (b), M. R. Evid. , when it asked certain questions
during the trial?
Rule 614 (b), M.R.Evid., provides:
The court may interrogate witnesses, whether called
by itself or a pa.rty; provided, however, that in
trials before a jury, the court's questioning must
be cautiously guarded so as not to constitute
express or implied comment.
Mr. Martin asserts that the District Court violated this rule
on three separate occasions during his two-day trial. The
incidents occurred during the testimony of Mr. Reinke, of the
State's chief expert witness, and of the defense's expert
witness.
The first alleged impropriety occurred while Mr. Reinke
was on the witness stand. Mr. Reinke was testifying about
what he and Mr. Martin did as they proceeded through the
school after breaking in. During the testimony, the judge
asked, "Didn't you boys have a flashlight?" The defense
argues that this question from the court tended to give
credibility to the witness' testimony, in the minds of the
jury.
This Court has made it clear that where a defendant does
not object at trial to the remarks and conduct of the trial
judge, the issue will not be considered upon appeal. State
v. Lloyd (Mont. 1984), 676 P.2d 229, 231, 41 St.Rep. 263,
265. No objection was made to the District Court's remark
until it was raised in this appeal. The defense contends
that " [a]n objection [during trial] by Mr. Martin's counsel
to the most damaging comment by the presiding judge would
clearly have created more prejudice on the part of the jury."
That view does not relieve the obligation of counsel to
object at trial.
Further, the judge's question did not constitute plain
error. While the question could possibly be viewed as a
reflection of the judge's belief in what Mr. Reinke stated,
it does not necessarily imply belief in the testimony. We
conclude that it does not constitute express or implied
comment on the evidence.
The second comment raised as grounds for a new trial
occurred during cross-examination of the State's fingerprint
expert. The witness was asked whether he had sought a second
opinion on his conclusion that the print on the cash box
matched Mr. Martin's. He answered, ''Yes, I did. I asked
Deputy Reeder if he would take a look at the enlargements
that I had made. " The court asked, ''And?" Defense counsel
objected that the court's question was improper, but the
District Court instructed the witness to answer, and he did.
Nothing in the rules of evidence prohibits a trial judge
from asking questions to clarify testimony. State v. Bier
(1979), 181 Mont. 27, 34, 591 P.2d 1115, 1119. We conclude
that the court's question did not constitute an express or
implied comment upon the evidence, but was in the nature of
an effort to clarify the testimony.
The third allegedly improper question by the judge
occurred during the testimony of the defense's expert wit-
ness. The witness testified at length on his qualifications
and on the subject of comparing fingerprints. During the
questioning, the trial judge asked, "I gather this art of
fingerprint identification is not an exact science, huh?"
The witness acknowledged that the science is not exact.
Again, defense counsel failed to object at trial to the
court's question. Further, the idea that fingerprint identi-
fication is not an exact science applies to the testimony of
the State's expert witnesses as much as it does to the testi-
mony of the defense's witness. Mr. Martin has not shown
reversible error. We must, however, caution the District
Court that its comments are close to the line of impermissi-
ble comment on the evidence and are the type of remarks which
could be a basis for reversal.
IV
Was Mr. Martin denied effective assistance of counsel at
sentencing?
Mr. Martin points out that a criminal defendant is
entitled to the assistance of counsel at a sentencing hear-
ing. His position appears to be that after his trial counsel
was dismissed at the beginning of the sentencing hearing, the
remainder of the hearing should have been postponed until new
counsel was appointed for him.
An indigent defendant may, by his actions, make a know-
ing and intelligent waiver of his right to an attorney,
State v. Harvey (1979), 184 Mont. 423, 430, 603 P.2d 661,
665, but he does not have the right to choose appointed
counsel. State v. Lopez (1980), 185 Mont. 187, 192-93, 605
P.2d 178, 181. Prior to the sentencing hearing, Mr. Martin
filed a pro se motion for new trial with over 50 pages of
supporting documents in which he claimed that his counsel was
ineffective. At the sentencing hearing, the motion was
discussed and the judge relieved that attorney from any
further duty to represent Mr. Martin. The court appointed
the same attorney as standby counsel for Mr. Martin, with the
understanding that Mr. Martin could consult the attorney
during the remainder of the hearing if he wished to do so.
During the remainder of the sentencing hearing, the
court invited Mr. Martin to question witnesses and to object
to the introduction of evidence. Mr. Martin did not question
any of the witnesses or object to any evidence introduced,
but stated that he wished to have new counsel to pursue the
claims he set forth in his motion for a new trial. The
District Court explained that the matters raised in the
motion for a new trial could be properly raised on appeal,
not at the sentencing hearing. Mr. Martin's detailed motion
for a new trial and his extensive supporting memorandum,
along with the presentence investigation report, support the
court's conclusion that Mr. Martin is thoroughly familiar
with the criminal justice system.
We conclude that Mr. Martin was not denied effective
assistance of counsel at his sentencing hearing. The judg-
ment of the District Court is affirmed.
L
Justices