Strategic Waiver, Plain Error, and Juror Bias in Montana:
Commentary on State v. Soapes, 2025 MT 296

I. Introduction

In State v. Soapes, 2025 MT 296, the Montana Supreme Court affirmed the conviction of Asia Carl Soapes for one count of felony sexual assault and three counts of felony sexual intercourse without consent. The decision is doctrinally significant not because it breaks new ground on the substantive criminal law of sexual offenses, but because it sharpens Montana’s approach to:

• the limits of the plain error doctrine in the face of strategic trial choices,
• the joinder of multiple, similar sexual offenses involving related victims, and
• the proper procedural vehicle for ineffective assistance of counsel (IAC) claims in Montana.

The opinion squarely addresses three issues:

1. Whether, under the plain error doctrine, the Court should intervene when a Yellowstone County Undersheriff—employed by the investigating agency—served on the jury without objection, and after defense counsel expressly supported his continued service mid-trial.
2. Whether, again under plain error review, the Court should examine the joinder of offenses involving two different victims (a stepdaughter and a sister-in-law) where no objection or motion to sever was made below.
3. Whether trial counsel was constitutionally ineffective for (a) failing to seek removal of the undersheriff-juror, and (b) failing to challenge joinder—issues the Court ultimately holds must be pursued, if at all, by postconviction relief.

Against the backdrop of a serious multi-count sex offense prosecution, the opinion clarifies:

• that even plain and obvious juror-bias problems will not be remedied under plain error where the defense affirmatively chose the arrangement, and
• that joinder of similar sexual offenses involving related victims occurring in the same household, even years apart, is generally permissible and will not be disturbed absent a clear and timely showing of unfair prejudice.

II. Summary of the Opinion

The Court (Justice Ingrid Gustafson writing; unanimous concurrence) affirms the convictions and sentences on the following grounds:

1. Plain Error and the Undersheriff-Juror

• The Court acknowledges that allowing a Yellowstone County Undersheriff—whose office investigated the case—to serve as a juror is very likely a “plain and obvious” error under State v. Kebble, 2015 MT 195.
• Nevertheless, because:
  • defense counsel passed the juror for cause during voir dire,
  • did not strike him peremptorily, and
  • affirmatively argued to keep him on the jury when the State raised the issue mid-trial,
  the Court holds that the third prong of Montana’s plain error standard is not met—there is no “manifest miscarriage of justice” or undermining of fundamental fairness sufficient to justify plain error review.
• The Court thus declines to exercise plain error review and leaves the jury’s composition undisturbed.

2. Plain Error and Joinder of Offenses

• The Court holds the offenses involving C. (the adopted daughter) and S.B. (the younger sister of defendant’s then-wife) were properly joined as “of the same or similar character” under § 46‑11‑404(1), MCA.
• The Court notes the substantial similarities:
  • same statute (sexual intercourse without consent),
  • young female relatives of the defendant’s then-wife,
  • assaults occurring in the shared home.
  The eight-year time gap is a factor but not enough to render joinder improper.
• Because:
  • no objection or severance motion was ever made, and
  • defendant failed to show prejudice so severe that a fair trial was impossible,
  the Court again declines plain error review.

3. Ineffective Assistance of Counsel

• The defendant claims his trial counsel was ineffective for (a) not seeking to strike the undersheriff-juror, and (b) not challenging joinder.
• Applying Strickland v. Washington, 466 U.S. 668 (1984), and Montana precedent, the Court does not reach the merits of the IAC claims on direct appeal.
• The record suggests that counsel’s actions may have been strategic (e.g., deliberately keeping a law enforcement juror who recognized false allegations occur), and the Court concludes:
  • the record is insufficient to determine “why” counsel proceeded as he did, and
  • the claims are therefore better suited to a postconviction relief proceeding.
• Significantly, the Court expressly indicates that if defendant pursues postconviction relief, he “should be appointed counsel” under § 46‑21‑201(2), MCA, “in the interests of justice.”

III. Detailed Analysis

A. Plain Error and an Undersheriff as Juror

1. Precedents and Statutes Framing the Issue

Two principal lines of authority intersect in this part of the opinion:

• The plain error doctrine (unpreserved errors):
  • State v. George, 2020 MT 56, ¶ 4 – confirms Montana generally will not address issues raised for the first time on appeal, but may do so under the common-law plain error doctrine for fundamental rights.
  • State v. Miller, 2022 MT 92, ¶ 10 – crystallizes Montana’s three-prong plain error test:
    1. a plain or obvious error,
    2. that implicates a constitutional or substantial right, and
    3. which, if uncorrected, would result in a manifest miscarriage of justice, undermine the fundamental fairness of the proceeding, or compromise the integrity of the judicial process.
    Miller also emphasizes that plain error correction requires showing the error “in fact resulted in substantial prejudice.”
• The right to an impartial jury and juror challenges:
  • State v. Grant, 2011 MT 81, ¶ 10 – reiterates that the right to an impartial jury is guaranteed by:
    • the Sixth Amendment to the U.S. Constitution, and
    • Article II, § 24 of the Montana Constitution.
  • § 46‑16‑115, MCA – provides enumerated grounds for juror challenges for cause, plus a catch-all:
    • (2)(b): includes persons in specified relationships or “in the employment of the defendant or the person … on whose complaint the prosecution was instituted”. An investigating agency can qualify.
    • (2)(j): persons having “a state of mind … that would prevent the juror from acting with entire impartiality and without prejudice to the substantial rights of either party.”
  • State v. Kebble, 2015 MT 195 – a key precedent:
    • In Kebble, a Department of Criminal Investigations (DCI) agent served as a juror in a case investigated by DCI, where DCI agents also testified.
    • The Court held that the juror should have been disqualified for cause under § 46‑16‑115 and reversed the conviction.
    • Kebble emphasizes that when the connection is direct and the juror is employed by the complaining or investigating agency, a for-cause challenge must be granted “regardless of whether the potential juror claims he can be impartial.”

2. The Court’s Legal Reasoning

a. Waiver vs. Plain Error: The Starting Point

The Court begins from the standard waiver rule: a defendant’s failure to contemporaneously object generally waives the right to appellate review. This is codified in:

• § 46‑20‑104(2), MCA, and
• § 46‑20‑701(2), MCA.

Because:

• the defense did not challenge Undersheriff Bofto for cause during voir dire,
• did not exercise a peremptory strike, and
• explicitly argued against removing him when the State raised concerns mid-trial,

any claim of error in allowing him to serve is unpreserved and can only be considered, if at all, under the plain error doctrine.

b. First Prong: Was There a “Plain or Obvious Error”?

The Court effectively answers “yes” to this question, though somewhat implicitly. It notes that:

• Bofto was a Yellowstone County Undersheriff,
• the Yellowstone County Sheriff’s Office (YCSO) was one of the investigating agencies, and
• the situation parallels Kebble, where employment by the investigating agency mandated a for-cause removal.

The Court states:

Undersheriff Bofto serving on the jury, when employed by the YCSO which was, in part, responsible for investigating the charges … is likely also a plain and obvious error…

Thus, had a timely for-cause challenge been made, Kebble strongly suggests the challenge should have been granted. The opinion stresses that point:

Had Soapes sought to challenge Undersheriff Bofto for cause and that challenge was denied, Soapes may have had a plausible argument, pursuant to the reasoning we articulated in Kebble, that the District Court abused its discretion by denying the challenge.

c. Second Prong: Does the Error Implicate a Fundamental Right?

Again, the Court effectively answers “yes.” The right to an impartial jury is a foundational constitutional guarantee under both the Montana and U.S. Constitutions (Grant, ¶ 10), easily satisfying the second prong of Miller’s plain error framework.

d. Third Prong: Manifest Miscarriage of Justice and the Role of Strategy

The decision turns on the third prong: whether failing to correct the error would result in:

• a manifest miscarriage of justice,
• prejudicially undermine the fundamental fairness of the proceeding, or
• compromise the integrity of the judicial process.

Here, the Court’s analysis is heavily influenced by the defense’s own conduct:

• During voir dire, defense counsel:
  • conducted substantive questioning of Undersheriff Bofto about false sexual assault allegations,
  • elicited that he had encountered false allegations in his work and was “not surprised,” and
  • then passed him for cause and declined a peremptory strike.
• Mid-trial, after defense counsel highlighted in front of the jury that Deputy Kelso was testifying in front of his “boss,” the State raised concerns and effectively implied a motion to strike Bofto.
• Defense counsel opposed that implicit motion, emphasizing:
  • that Bofto’s role and relationships were known since voir dire,
  • that both sides had accepted his assurances of impartiality, and
  • that there were “no concerns, at least not from the Defense.”

The Court underscores that these choices appear strategic:

Counsel’s questions to Bofto indicate his strategic reasons why Soapes may have wanted Undersheriff Bofto on his jury.

Because the defendant affirmatively sought to keep Bofto on the jury—not just failed to object, but actively resisted an opportunity to remove him—the Court finds no basis to conclude that leaving this choice undisturbed creates a manifest injustice or undermines the integrity of the process. In other words, the risk was one that the defense knowingly chose to run.

While the opinion does not label it explicitly, this is a functional application of the invited error principle within the plain error framework: a litigant cannot induce, endorse, or strategically exploit a particular arrangement at trial and then later seek appellate relief by characterizing it as an error.

3. Impact and Doctrinal Significance

a. Narrowing Practical Reach of Kebble Through the Lens of Plain Error

Kebble stands for a robust rule: when there is a direct connection between a juror’s employment and the investigating/complaining agency, a for-cause challenge should be granted regardless of the juror’s professed impartiality. Soapes does not weaken that substantive rule, but it clarifies:

• The rule in Kebble is not self-enforcing on appeal in the absence of a proper, timely objection.
• Defendants who fail to challenge such a juror—or worse, who strategically endorse the juror’s service—will find it very difficult to obtain appellate relief under plain error.

Practically, this transforms Kebble from a “safety net” into more of an affirmative tool: it must be invoked timely at trial by way of challenge for cause. Otherwise, appellate correction will be rare.

b. Strategic Choices as a Barrier to Plain Error Review

Soapes strengthens a trend in Montana jurisprudence: strategic trial decisions by defense counsel are entitled to respect and will limit the Court’s willingness to deploy the plain error doctrine, even in the face of problematic or structural issues.

Going forward:

• Defense counsel who decide to keep law enforcement officers or similarly conflicted individuals on the jury, hoping those jurors will be sympathetic, must recognize that:
  • This is a high-risk strategy, and
  • They will likely be barred from turning that strategy into a claim of plain error on appeal.
• Trial judges, though retaining discretion to sua sponte raise concerns, are not required to override strategic waivers by the defense in order to avoid reversible error—particularly where the defendant’s decisions are clear and deliberate on the record.

c. The Message for Trial Practice

For practitioners, Soapes sends several clear signals:

• Use challenges for cause aggressively when a juror is employed by an investigating or complaining agency. Kebble remains a potent authority in support of removal.
• Recognize that failing to object—or affirmatively embracing—such a juror will almost certainly foreclose plain error relief.
• Ensure that jury selection strategy is discussed with the client and, where possible, documented; if strategy later becomes an IAC issue, the record of client participation and reasoning may matter in postconviction proceedings.

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B. Joinder of Sexual Offenses and Plain Error Review

1. Precedents and Statutory Framework

Joinder and severance of offenses in Montana are controlled by both statute and case law. The key statutory and precedential authorities cited in Soapes are:

• Joinder – § 46‑11‑404(1), MCA:
  • Permits joinder of offenses in one charging instrument if the offenses:
    • are of the same or similar character, or
    • are based on the same transaction, or
    • are based on connected transactions or constitute parts of a common scheme or plan.
• Severance – § 46‑13‑211(1), MCA:
  • Allows the court to order separate trials if necessary “to promote a fair determination” of guilt or innocence of any charge.
  • The burden is on the defendant to show that severance is required to prevent unfair prejudice.
• Key case law on joinder and severance:
  • State v. Southern, 1999 MT 94 – establishes defendant’s burden to prove misjoinder or unfair prejudice and describes the three forms of prejudice relevant to severance (discussed further below).
  • State v. Kirk, 2011 MT 314 –
    • affirms that joinder questions are reviewed de novo, and denials of severance for unfair prejudice are reviewed for abuse of discretion;
    • collects factors for whether offenses are of “similar character”: same statutes, similar victims, locations, modus operandi, time frame, geographic area.
  • State v. Freshment, 2002 MT 61 – earlier authority on “similar character” factors cited in Kirk.
  • State v. Riggs, 2005 MT 124 – emphasizes that a defendant must show prejudice so great as to prevent a fair trial. It is not enough to show some prejudice or that multiple trials might improve chances of acquittal.
• Plain error – Miller and George:
  • The same three-prong plain error standard controls unpreserved joinder/severance claims.

2. The Court’s Legal Reasoning on Joinder

a. Proper Joinder Under § 46‑11‑404(1), MCA

The Court first analyzes whether the offenses involving C. and S.B. are of the “same or similar character.” Applying the Kirk/Freshment factors, the Court notes:

• Same statute: The charges against both victims include sexual intercourse without consent.
• Similar victims: Both are young female relatives of defendant’s then-wife, Christina:
  • C. – adopted daughter of defendant, child of Christina.
  • S.B. – Christina’s younger sister.
• Similar location: Both assaults took place in the shared home of defendant and Christina.
• Similar modus operandi in the broad sense:
  • domestic setting,
  • exploitation of familial or quasi-familial relationship,
  • sexual touching/penetration of young female relatives when vulnerable (asleep or in private settings).
• Time frame: There is a substantial temporal gap (approximately eight years), which the Court acknowledges “would likely counsel in favor of severing” as one consideration, but finds this factor outweighed by the overall similarity and connection of the offenses.

The Court concludes that, considered as a whole, joinder was permissible under § 46‑11‑404(1), MCA.

b. Unfair Prejudice and the Southern/Riggs Standard

Because joinder was proper, the next step would have been an analysis of unfair prejudice under § 46‑13‑211(1), MCA—if a motion to sever had been made. Although no such motion was filed, the Court frames the prejudice inquiry by reference to Southern and Riggs.

Southern identifies three principal ways prejudice can justify severance:

1. “Bad person” prejudice – the accumulation of evidence on multiple counts may lead a jury to conclude that the defendant must be guilty of something.
2. Spillover prejudice – the jury might use evidence of guilt on one count to convict on another count, even though such evidence would be inadmissible in a separate trial on the latter count.
3. Testimonial dilemma – the defendant wishes to testify on some counts but not others, compromising his trial strategy.

Riggs then stresses that the defendant’s burden is “substantial”: it is not enough to show some prejudice or a better tactical position with separate trials; the prejudice must be so great as to prevent a fair trial.

In Soapes:

• The defendant did not move to sever and thus made no contemporaneous showing of unfair prejudice.
• On appeal, he did not demonstrate:
  • that jury confusion or “bad person” prejudice prevented a fair weighing of evidence,
  • that evidence inadmissible in a separate trial was improperly used to secure conviction, or
  • that he was forced into an untenable testimonial dilemma—indeed, he testified on all counts, denying C.’s allegations and claiming consensual contact with S.B.

The Court notes that the case largely turned on credibility determinations: the jury believed C. and S.B. rather than the defendant. That reality, without more, does not establish the extreme level of prejudice required.

C. Why Plain Error Review Was Declined

Because:

• joinder was substantively proper under § 46‑11‑404(1), MCA, and
• no severe, trial-denying prejudice was shown (or even argued in detail),

the Court sees no plain or obvious error and, more importantly, no basis to find that failure to intervene would cause a manifest miscarriage of justice or undermine the fundamental fairness of the process. Accordingly, it declines to exercise plain error review.

3. Impact on Future Multi-Victim Sexual Offense Prosecutions

Soapes reinforces several key practical and doctrinal points:

• Broad scope for joinder in sex offense cases:
  • Multiple charges involving sexual abuse of related or similarly situated victims in the same household are strong candidates for joinder, even if years apart.
  • Prosecutors can expect joinder to be upheld where statutory and factual similarities are clear, as in Soapes.
• Defendant’s burden to seek severance:
  • Defendants must timely move to sever if they believe joinder will cause unfair prejudice.
  • Absent a clear and substantial showing of prejudice, appellate courts will not reconfigure the trial structure after the fact—especially via plain error.
• Plain error is not a substitute for trial-level strategic choices:
  • Where defendants make tactical decisions not to seek severance (for example, to argue that both complainants are fabricating for related reasons), those decisions will generally bind them on appeal.

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C. Ineffective Assistance of Counsel: Direct Appeal vs. Postconviction

1. The Governing Legal Framework

Montana’s approach to ineffective assistance of counsel (IAC) claims rests on:

• Constitutional foundations:
  • Article II, § 24, Montana Constitution – guarantees criminal defendants the right to counsel.
  • Sixth Amendment, U.S. Constitution (as incorporated through the Fourteenth Amendment) – guarantees the right to effective assistance of counsel.
• Strickland v. Washington, 466 U.S. 668 (1984) – adopted in Montana:
  • Counsel’s performance must be shown to be:
    1. Deficient: falling below an objective standard of reasonableness, and
    2. Prejudicial: a reasonable probability that, but for counsel’s errors, the result would have been different.
• Montana cases applying Strickland:
  • State v. Kougl, 2004 MT 243 – articulates Strickland’s two-prong test in Montana terms.
  • State v. Turnsplenty, 2003 MT 159 – earlier Strickland application, quoted in Soapes.
  • State v. Santoro, 2019 MT 192 (Santoro I) – reiterates the Strickland framework as Montana law.
  • State v. Ward, 2020 MT 36 – emphasizes that IAC claims can be reviewed on direct appeal only when the record explains why counsel did or did not act.
  • State v. Secrease, 2021 MT 212 – states direct review is appropriate only when there is “no plausible justification” for counsel’s actions evident from the record.
  • State v. Rodriguez, 2021 MT 65 – reiterates preference for postconviction proceedings where the record is incomplete on counsel’s strategy.
  • State v. Hinshaw, 2018 MT 49, and State v. Briscoe, 2012 MT 152 – caution that claims involving counsel’s omissions are “often ill-suited” for direct appeal.
  • State v. McCaulou, 2022 MT 197 – emphasizes that IAC must stem from incompetence or neglect, not strategic decision-making.
• Statutory right to PCR counsel:
  • § 46‑21‑201(2), MCA – allows appointment of counsel in postconviction proceedings when “the interests of justice” require it.

2. The Court’s Reasoning on IAC in Soapes

The defendant claimed trial counsel was ineffective for:

• failing to seek removal of Undersheriff Bofto, and
• failing to object to, or seek severance of, the joined charges involving different victims.

The Supreme Court does not decide whether these actions (or omissions) were deficient or prejudicial. Instead, it addresses an antecedent question: Is this record adequate to evaluate counsel’s performance?

a. Record-Based vs. Strategy-Based Claims

Under Ward, Secrease, and related cases, IAC claims may be resolved on direct appeal only where:

• the reasons for counsel’s actions are apparent from the record, and
• there is no plausible strategic justification.

If the record does not reveal why counsel took a course of action—or omits important context—then the claim is better addressed via a postconviction relief (PCR) proceeding where:

• evidence can be taken,
• counsel can explain strategy, and
• the record can be developed accordingly.

b. Indications of Strategy in Soapes

The Court identifies clear indications that counsel made strategic choices:

• Regarding Undersheriff Bofto:
  • Counsel specifically highlighted Bofto’s familiarity with false sexual assault allegations during voir dire, presumably to support a defense theory that allegations could be fabricated.
  • Counsel twice declined to remove him:
    • passing him for cause and not using a peremptory, and
    • affirmatively arguing to keep him when the State expressed doubt mid-trial.
• Regarding joinder:
  • The defense may have chosen to attack both complainants’ credibility in a single narrative, arguing that multiple accusers shared motives to lie or misinterpret events.
  • The record is silent on counsel’s reasoning, but the circumstances make it at least plausible that consolidating the attacks on both accusers was part of a unified trial strategy.

Because the record suggests strategy—but does not fully explain it—the Court follows McCaulou: IAC claims based on such choices are “ill-suited” to direct appeal and must be developed via PCR.

c. Appointment of Counsel in Anticipated PCR

The Court concludes:

If Soapes does choose to file for postconviction relief, we determine he should be appointed counsel “in the interests of justice.” See § 46‑21‑201(2), MCA.

This is notable: the Court is signaling that:

• the possible IAC issues are sufficiently serious and complex, and
• given the gravity of the convictions (100-year sentence), representation by counsel in PCR proceedings is appropriate.

However, the Court does not prejudge the merits of any such IAC claim. It simply channels the claims into the correct procedural vehicle.

3. Impact on IAC Litigation in Montana

Soapes reinforces several settled but important principles:

• Direct appeal is the exception for IAC, not the rule:
  • Only when the record clearly shows both what counsel did and why, and when no strategic rationale is possible, will IAC be resolved on direct appeal.
  • Otherwise, PCR is the appropriate path.
• Strategic choices are presumptively reasonable:
  • Even risky or questionable tactics—such as keeping a law enforcement juror—will not automatically amount to IAC.
  • Courts will not second-guess such choices without a developed record and clear evidence they stemmed from incompetence rather than strategy.
• Heightened attention to PCR counsel in serious cases:
  • By explicitly recommending appointment of counsel “in the interests of justice,” the Court underscores the importance of meaningful representation in postconviction proceedings, particularly where the stakes are high.

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IV. Clarifying Key Legal Concepts

To make the opinion more accessible, it is helpful to simplify several core concepts that drive the Court’s analysis.

1. Plain Error Doctrine

In Montana, if a party does not object to something at trial, the issue is normally waived on appeal. The plain error doctrine is a narrow exception. The Supreme Court will review an unpreserved error only if:

1. The error is plain or obvious (clear from the record and law).
2. The error affects a fundamental right (such as the right to a fair trial or impartial jury).
3. Not correcting the error would cause:
   • a manifest miscarriage of justice,
   • seriously undermine the fairness of the proceeding, or
   • compromise the integrity of the judicial system.

This is a demanding standard; the doctrine is used “sparingly” and is not intended to rescue strategic or tactical decisions made at trial.

2. Challenges for Cause vs. Peremptory Challenges

• Challenge for cause:
  • Used when a juror is legally disqualified (e.g., bias, relationship to the parties, employment by the investigating agency, as under § 46‑16‑115, MCA).
  • The judge decides whether the juror can be impartial; if not, the juror must be removed.
• Peremptory challenge:
  • Each side has a limited number.
  • May be used for almost any reason (excluding forbidden discriminatory reasons, such as race or gender) without explanation.

In Soapes, defense counsel used neither device to remove Undersheriff Bofto, and indeed argued to keep him after the State raised concerns.

3. Joinder and Severance of Offenses

• Joinder:
  • Allows the State to charge multiple offenses in one trial if they are sufficiently related (same or similar character, same transaction, connected scheme).
  • Promotes efficiency and avoids repetitive trials.
• Severance:
  • Permits a defendant to request separate trials for different charges if a joint trial would be unfairly prejudicial.
  • Requires showing more than inconvenience—prejudice must be so severe that the defendant cannot receive a fair trial.

In sexual offense cases, joinder can be powerful for the prosecution, as evidence from one victim can bolster the narrative concerning another. Courts therefore pay particular attention to whether joinder is appropriate and whether severance is necessary to prevent unfair prejudice. In Soapes, the court found joinder proper and no basis for severance on this record.

4. Ineffective Assistance of Counsel (IAC)

An IAC claim is not simply a complaint that counsel lost the case. To succeed, a defendant must show:

1. Counsel’s performance was objectively unreasonable – not just a losing strategy, but below the standard of competence expected of attorneys.
2. The poor performance probably affected the outcome – there must be a reasonable probability that, but for the errors, the result of the trial would have been different.

Importantly:

• Strategic decisions—even if unwise in hindsight—are generally not IAC unless they are so irrational that no competent lawyer would have made them.
• Often, the reasons for counsel’s choices do not appear in the appellate record; hence, many IAC claims must be raised in postconviction relief proceedings, where evidence and testimony can be taken.

5. Postconviction Relief

Postconviction relief (PCR) is a separate proceeding, after direct appeal, in which a convicted person can:

• challenge the conviction or sentence based on constitutional violations (including IAC),
• raise issues that depend on evidence outside the original trial record, and
• seek discovery or evidentiary hearings to develop the factual basis for claims.

Under § 46‑21‑201(2), MCA, Montana courts may appoint counsel in PCR proceedings when the “interests of justice” require it. The Court in Soapes expressly recommends this for any PCR petition he might file.

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V. Conclusion: The Broader Significance of State v. Soapes

State v. Soapes does not announce an entirely new doctrinal rule. Instead, it refines and integrates several existing strands of Montana criminal procedure and constitutional law, with clear practical implications.

Key takeaways include:

• Plain error is narrowly confined, especially where trial counsel made strategic choices.
  • Even in the presence of likely juror-bias issues (as with the undersheriff-juror clearly connected to the investigating agency), the Court will not intervene via plain error where the defense has twice affirmatively endorsed the juror’s service.
  • This underscores that plain error is a backstop for truly unforeseen or unwaived violations of fundamental rights, not a tool to undo tactical decisions.
• Kebble remains powerful, but only when invoked.
  • The Court signals that a timely challenge for cause to a juror employed by the investigating agency would likely have been granted—and, if denied, might have led to reversal.
  • But where such a challenge is not made, Kebble will not rescue the defendant on appeal absent an extraordinary showing under plain error.
• Joinder of similar sexual offenses involving related victims is robustly supported.
  • Charges involving young female relatives abused in the defendant’s home, even across an eight-year gap, were properly joined.
  • To obtain severance, defendants must show prejudice so severe it deprives them of a fair trial; a general risk of “bad character” inference is insufficient.
• IAC claims are increasingly channeled to postconviction relief.
  • Where counsel’s motives are not fully apparent from the record—especially in jury selection or joinder decisions—the Court will not speculate on direct appeal.
  • Instead, defendants must pursue PCR, where the record can be developed and counsel’s strategy examined.
  • The Court’s explicit recommendation for appointment of PCR counsel in Soapes highlights both the seriousness of the stakes and the complexity of potential IAC issues.

In sum, State v. Soapes reinforces a central theme in modern appellate criminal practice: trial is where strategic battles must be fought and preserved. The Montana Supreme Court will protect fundamental rights, but it will also respect deliberate choices made in the crucible of trial. Invited or strategically accepted risks—whether in jury composition or trial structure—will rarely be the basis for reversal on plain error, and claims that counsel mishandled those risks will generally need to be vindicated, if at all, through the structured fact-finding of postconviction proceedings.