Ford v. State , 327 Mont. 378 ( 2005 )

No. 04-167
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 151
EUGENE FORD,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade, Cause No. ADC 99-102
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Antonia P. Marra, Bell & Marra, Great Falls, Montana
For Respondent:
Honorable Mike McGrath, Montana Attorney General, Mark W. Mattioli,
Assistant Attorney General, Helena, Montana; Brant S. Light, Cascade
County Attorney, Great Falls, Montana
Submitted on Briefs: February 2, 2005
Decided: June 14, 2005
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Eugene Ford (Ford) appeals the ruling of the Eighth Judicial District Court, Cascade
County, denying his petition for postconviction relief. We affirm. The issue on appeal is
whether the District Court properly denied Ford’s petition without holding an evidentiary
hearing.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 On March 26, 1999, the State filed an information charging Ford with the offense of
deliberate homicide in relation to the death of his roommate, Michael Paul (Paul). Paul was
so severely beaten that his dentures were lodged deep in his throat and had to be removed
with forceps. On November 12, 1999, a unanimous jury found Ford guilty. He was then
sentenced to the Montana State Prison for life and was declared ineligible for parole.
¶3 This Court affirmed Ford’s conviction in State v. Ford, 2001 MT 230, 306 Mont. 517,
39 P.3d 108. Thereafter, Ford filed a pro se petition for postconviction relief, along with a
supporting memorandum which was written by his postconviction counsel. Concurrently,
Ford’s counsel moved for leave to withdraw as counsel of record, stating that she could find
no non-frivolous issue to support Ford’s petition for postconviction relief.
¶4 In his petition, Ford claimed that he had received ineffective assistance of counsel
during his trial. In support of this claim, Ford identified a variety of alleged deficiencies in
his trial counsel’s performance. Upon these contentions, Ford requested an evidentiary
hearing and asked the District Court to grant him a new trial and appoint new counsel. The
District Court denied Ford’s petition in its entirety, and Ford filed a notice of appeal.
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¶5 This Court permitted Ford’s postconviction counsel to withdraw as counsel of record,
and remanded the matter to the District Court for the limited purpose of appointing new
counsel. The District Court appointed appellate counsel for Ford, and this appeal followed.
Ford now argues that the District Court erred when it denied his petition for postconviction
relief without conducting an evidentiary hearing. In support of this argument, Ford asserts
that an evidentiary hearing is necessary to ascertain the extent of his counsel’s deficient
performance and the resulting prejudice, as that can not be determined from the record alone.
Upon these contentions, Ford asks this Court to reverse the District Court and order that an
evidentiary hearing be held.
STANDARD OF REVIEW
¶6 We review a district court’s denial of a petition for postconviction relief to determine
whether the court’s findings of fact are clearly erroneous and whether its conclusions of law
are correct. State v. Harris, 2001 MT 231, ¶ 9, 306 Mont. 525, ¶ 9, 36 P.3d 372, ¶ 9. The
decision to hold an evidentiary hearing in a postconviction relief proceeding is discretionary
and is reviewed for abuse of discretion. Harris, ¶ 9.
DISCUSSION
¶7 The right to effective assistance of counsel is guaranteed by the Sixth Amendment to
the United States Constitution, and by Article II, Section 24 of the Montana Constitution.
State v. Kougl, 2004 MT 243, ¶ 11, 323 Mont. 6, ¶ 11, 97 P.3d 1095, ¶ 11. In considering
ineffective assistance of counsel claims in postconviction proceedings, Montana courts apply
the two-pronged test set forth by the United States Supreme Court in Strickland v.
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Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674. State v. Boucher, 1999
MT 102, ¶ 18, 294 Mont. 296, ¶ 18, 980 P.2d 1058, ¶ 18. Under that test, the petitioner must
show that counsel’s performance was deficient and that the deficient performance prejudiced
the defense. Boucher, ¶ 18. Where a claim of ineffective assistance is predicated on a
failure to object at trial, the petitioner must show that the objection would have been proper
and would have been sustained. State v. Jenkins, 2001 MT 79, ¶ 11, 305 Mont. 95, ¶ 11, 23
P.3d 201, ¶ 11. A petitioner claiming ineffective assistance of counsel must ground his or
her proof on facts within the record and not on conclusory allegations. Davis v. State, 2004
MT 112, ¶ 20, 321 Mont. 118, ¶ 20, 88 P.3d 1285, ¶ 20.
¶8 Section 46-21-104(1)(c), MCA, requires that a petition for postconviction relief
“identify all facts supporting the grounds for relief set forth in the petition and have attached
affidavits, records, or other evidence establishing the existence of those facts.” Mere
allegations do not constitute the “evidence” contemplated by this statute, and unsupported
allegations are not sufficient to entitle a petitioner to an evidentiary hearing. State v. Finley,
2002 MT 288, ¶ 9, 312 Mont. 493, ¶ 9, 59 P.3d 1132, ¶ 9. Further, we have held that this
statute requires that a claim of ineffective assistance of counsel must be grounded on facts
in the record and not merely on conclusory allegations. Finley, ¶ 9.
1. Failure to timely object to the State’s use of peremptory challenges.
¶9 During the jury selection process preceding Ford’s trial, the prosecutor used each of
the State’s six peremptory challenges to exclude women from the jury panel. The final jury,
comprised of eight men, four women and one women alternate, was then sworn, and the
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venire was dismissed with the thanks of the court. Subsequently, Ford’s counsel moved for
a new jury pool, claiming the State had violated Ford’s right to a jury of his peers when it
removed the six women. The prosecutor denied any discriminatory intent and provided
gender neutral explanations for five of the six peremptory challenges before the District
Court overruled Ford’s objection.
¶10 Following his conviction, Ford appealed to this Court arguing that the State had
improperly used its peremptory challenges and had thereby violated his equal protection
rights. Ford, ¶ 2. In advancing this argument, Ford relied on J.E.B. v. Alabama (1994), 511
U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89, which established the prohibition against gender
discrimination in jury selection. Ford, ¶ 20. We concluded that Ford’s objection to the
State’s use of its peremptory challenges was untimely because it was not raised until after
the jury was impaneled and sworn and the venire was dismissed. Ford, ¶ 28. Thus, we
deemed the objection waived, declined to address the merits of Ford’s claim, and affirmed
the District Court. Ford, ¶¶ 28-29.
¶11 In his petition for postconviction relief, Ford claimed that his trial counsel had
rendered ineffective assistance when he failed to raise a timely objection to the State’s use
of its peremptory challenges. Ford based this claim on his allegation that the prosecutor had
discriminated based on gender in exercising peremptory challenges. Further, Ford claimed
that he was prejudiced by his counsel’s failure because it prevented him from making a valid
argument on appeal. The District Court concluded that the basis for Ford’s claim was clearly
contained within the trial record and could have been raised on direct appeal. Hence, the
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court concluded that Ford’s claim was procedurally barred under § 46-21-105(2), MCA, and
refused to grant relief.
¶12 On appeal, Ford concedes that this claim could have been raised on direct appeal.
However, Ford argues that he should not be precluded from raising this claim in
postconviction proceedings because the failure to raise the claim on direct appeal was a result
of his appellate counsel’s ineffective assistance. We will not address this argument because
it was not raised in Ford’s petition for postconviction relief. As we have repeatedly held, we
will not address issues raised for the first time on appeal. Griffin v. State, 2003 MT 267,
¶ 15, 317 Mont. 457, ¶ 15, 77 P.3d 545, ¶ 15.
¶13 Additionally, Ford argues that his petition should not have been denied because “the
district court had, at its fingertips, a showing of ineffective assistance of counsel . . . .” In
support of this contention, Ford asserts that this Court’s resolution of his direct appeal
established that his trial counsel rendered deficient performance. Ford has misconstrued our
decision. While we did determine that Ford’s trial counsel had objected in an untimely
fashion to the State’s use of its peremptory challenges, we explicitly declined to address the
merits of that objection. Ford, ¶ 28. As such, our resolution of Ford’s direct appeal does not
establish that his trial counsel rendered deficient performance.
¶14 Section 46-21-105(2), MCA, provides that when a petitioner has been afforded the
opportunity for a direct appeal of his or her conviction, grounds for relief that were or could
reasonably have been raised on direct appeal may not be raised, considered, or decided in
postconviction proceedings. We have consistently applied this statutory bar in order to
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prevent the abuse of postconviction relief by criminal defendants who would substitute those
proceedings for direct appeal. Basto v. State, 2004 MT 257, ¶ 15, 323 Mont. 80, ¶ 15, 97
P.3d 1113, ¶ 15. In doing so, we have stated that “where ineffective assistance of counsel
claims are based on facts of record in the underlying case, they must be raised in the direct
appeal and, conversely, where the allegations of ineffective assistance of counsel cannot be
documented from the record in the underlying case, those claims must be raised by petition
for post-conviction relief.” State v. White, 2001 MT 149, ¶ 12, 306 Mont. 58, ¶ 12, 30 P.3d
340, ¶ 12. The underlying principle of this rule is that a silent record cannot rebut the strong
presumption, under this Court’s Strickland-based analysis, that counsel’s conduct falls within
the wide range of reasonable professional assistance. White, ¶ 13.
¶15 Generally, the trial court record must adequately document why counsel acted in a
particular manner in order for this Court to review a claim of ineffective assistance and
determine whether counsel’s action falls below the reasonable standard for professional
conduct. State v. Jefferson, 2003 MT 90, ¶ 49, 315 Mont. 146, ¶ 49, 69 P.3d 641, ¶ 49.
However, where trial counsel’s challenged conduct can not be considered a trial strategy or
tactical decision, it is appropriate for review on direct appeal even if the record does not
disclose the reason for such conduct. Jefferson, ¶ 50.
¶16 For example, in Jefferson we reviewed a claim of ineffective assistance on direct
appeal even though the record did not disclose the reasons for trial counsel’s challenged
conduct. Jefferson, ¶ 50. The defendant, Jefferson, entered a not guilty plea to the charge
of attempted deliberate homicide. Jefferson, ¶ 10. Subsequently, he entered into a plea
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agreement whereby he agreed to plead guilty to one count of felony assault, and the State
agreed to drop the charge of attempted deliberate homicide. Jefferson, ¶ 12. Jefferson later
withdrew his guilty plea on the felony assault charge and proceeded to trial on the charge of
attempted deliberate homicide. Jefferson, ¶¶ 13-14. At trial, defense counsel admitted in
both his opening statement and closing argument that Jefferson was guilty of felony assault.
Jefferson, ¶¶ 45-46. Jefferson appealed to this Court claiming, inter alia, that he had
received ineffective assistance of counsel. Jefferson, ¶ 41. We determined that counsel’s
remarks had the effect of entering a plea for Jefferson without his consent. Jefferson, ¶ 50.
Further, we held that because there was no plausible justification for counsel’s conduct under
the circumstances, the admission of guilt could not be considered a trial strategy or tactical
decision. Jefferson, ¶ 50. As such, we deemed Jefferson’s ineffective assistance claim
appropriate for review on direct appeal, even though the record did not document why
counsel had made the admission. Jefferson, ¶ 50.
¶17 Here, trial counsel’s failure to raise a timely objection to what he perceived as
discriminatory use of the State’s peremptory challenges, can not be considered a trial strategy
or tactical decision. Ford explicitly concedes this in his appellate brief. Of course, we make
no determination here regarding the merits of such an objection. However, to the extent that
such an objection would have been meritorious, the failure to raise it in a timely fashion
could only prejudice Ford. Because there can be no plausible justification for such a failure,
there is no need to hold an evidentiary hearing to determine the reason for counsel’s
omission. As such, we could have reviewed the merits of Ford’s claim on direct appeal even
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though the trial record does not document why counsel failed to object earlier. Such review
could have been conducted, as it was in Jefferson, without consideration of factual matters
outside the trial record. Consequently, we hold that under § 46-21-105(2), MCA, Ford was
procedurally barred from bringing this claim in postconviction relief proceedings because
he could reasonably have done so on direct appeal. Thus, we conclude that the District
Court correctly denied relief on this claim.
2. Failure to move to suppress Ford’s statements.
¶18 In his petition for postconviction relief, Ford alleged that the responding law
enforcement officers elicited statements from him before issuing a Miranda warning.
Pursuant to this allegation, Ford claimed that his trial counsel rendered ineffective assistance
when he failed to move to suppress these statements. Ford also claimed that his trial counsel
rendered ineffective assistance when he failed to interview a civilian witness, who
accompanied one of the officers as a ride-along on the night of the incident, regarding this
alleged improper questioning.
¶19 One of the responding officers testified that at the scene of the crime Ford was
repeatedly and spontaneously exclaiming that he had killed Paul, at one point stating “I killed
him. I broke his neck. I killed him.” In addressing Ford’s allegation, the District Court
stated:
The evidence presented at trial was that the officers did not question
Ford, while at the scene of the crime, and that any statements made by Ford
to either Officer Ramsay or Officer Sorenson were not in response to
questioning by the officers.
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Further, the District Court concluded that, in these circumstances, the officers were not
required to advise Ford of his Miranda rights. Finally, the District Court found that Ford
offered no evidence to establish that his counsel was ineffective for not filing a motion to
suppress these statements. Accordingly, the District Court refused to grant relief on this
claim.
¶20 On appeal, Ford presents several contentions that were not raised in his petition for
postconviction relief. Ford contends that: (1) some of the officers who claimed to be present
when certain alleged statements were made, were not present; (2) law enforcement officers
threatened and coerced Ford in the course of his statements; (3) Ford’s taped statement was
made under circumstances which would allow for suppression; and (4) if there were
witnesses who observed the officers coercing Ford into making statements, the District Court
could determine that trial counsel was ineffective in failing to speak with these witnesses.
We have repeatedly held that we will not address issues raised for the first time on appeal.
Griffin, ¶ 15. Thus, because none of these contentions were raised previously, we will not
address them here.
¶21 Ford also suggests that many problems could have resulted from trial counsel’s failure
to interview the civilian, who was accompanying the responding officers, regarding the
alleged improper questioning. However, he does not make any argument or point to any
evidence which would indicate that any such problems occurred in his trial. We conclude
that the District Court properly denied relief on this claim, as it is without merit. The claim
is grounded on nothing more than Ford’s allegation that law enforcement officers elicited
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statements from him before issuing a Miranda warning. As such, Ford has failed to comply
with § 46-21-104(1)(c), MCA, which requires that postconviction claims be grounded on
facts in the record. Finley, ¶ 9.
3. Failure to move to suppress witness testimony.
¶22 In his petition for postconviction relief, Ford alleged that law enforcement officers had
coerced statements from his neighbors and “threatened them with evidence to link them to
the crime.” Upon this allegation, Ford claimed that his counsel was ineffective when he
failed to move to suppress the testimony of these neighbors regarding the incident. Ford also
argued that his counsel was ineffective when he failed to interview these witnesses regarding
this alleged coercion. The District Court found, upon the testimony and cross-examination
of these individuals, that there was no indication they had been coerced by law enforcement
officers. Further, the court found that Ford had produced no evidence to support his
allegation. Accordingly, the court refused to grant relief on this claim.
¶23 On appeal, Ford suggests that many problems could have resulted from trial counsel’s
failure to interview the neighbors regarding this alleged coercion. However, Ford does not
make any argument or point to any evidence which would indicate that any such problems
occurred in his trial. We conclude that the District Court properly denied relief on this
claim, as it is without merit. The claim is grounded on nothing more than Ford’s allegation
that law enforcement officers coerced statements from his neighbors. As such, Ford has
failed to comply with § 46-21-104(1)(c), MCA, which requires that postconviction claims
be grounded on facts in the record. Finley, ¶ 9.
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4. Failure to move to suppress illegally obtained blood evidence.
¶24 In his petition for postconviction relief, Ford alleged that detectives collected a blood
sample from his hands before obtaining a search warrant. Upon this allegation, Ford claimed
that his counsel provided ineffective assistance when he failed to file a motion to suppress
such evidence. In denying relief on this claim, the District Court noted that the State did not
admit any blood evidence at trial, and thus Ford’s trial counsel had no reason to file a motion
to suppress such evidence. On appeal, Ford claims that he is entitled to an evidentiary
hearing on this issue, but fails to present any argument in support of this claim. We conclude
that the District Court properly denied relief on this claim, as it is grounded on an allegation
that is directly refuted by the trial record. Thus, Ford has failed to comply with
§ 46-21-104(1)(c), MCA, which requires that postconviction claims be grounded on facts in
the record. Finley, ¶ 9.
5. Instigation of negative publicity.
¶25 In his petition for postconviction relief, Ford claimed that his counsel was “ineffective
in his handling of the media.” This claim stems from the fact that one of Paul’s relatives
visited Ford during his incarceration at the Cascade County Detention Center, causing a
disruption and cursing at Ford. Ford’s counsel issued a news release regarding the incident.
Consequently, the Great Falls Tribune ran a story containing counsel’s accusation that law
enforcement officials had violated Ford’s constitutional rights by allowing the incident to
occur. Hence, Ford argued that his counsel instigated negative media coverage which
reduced his chances of obtaining an impartial jury. Ford claimed that he was prejudiced by
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his counsel’s conduct because of the impossibility of proving the extent to which the media
coverage turned the community against Ford.
¶26 The District Court concluded that the issue of pre-trial publicity was adequately dealt
with during voir dire, as all of the jurors indicated that they were unaware of the media
coverage at issue. Further, the District Court found that Ford had not supported his
allegation of prejudice with any evidence. Accordingly, the District Court refused to grant
relief on this claim. On appeal, Ford asserts that he is entitled to an evidentiary hearing on
this issue, but fails to present any argument in support of this claim. Further, Ford has
presented no evidence to support his allegation of prejudice. Finally, Ford has cited no
authority in support of the claim that his counsel’s complaint to the media amounts to
ineffective assistance. Section 46-21-104(2), MCA, requires that a petition for
postconviction relief be supported by legal authority. Thus, we conclude that the District
Court properly denied relief on this claim.
¶27 Incidentally, we observe that Ford has misrepresented the trial record in advancing
this claim on appeal. In an apparent attempt to fault his trial counsel’s efforts, Ford asserts
that after the publicity occurred, his trial counsel did not make a motion to change venue.
However, the trial record demonstrates that Ford’s counsel did in fact make a motion to
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change venue. The District Court apparently denied this motion,1 and Ford did not raise the
issue on direct appeal or in postconviction proceedings.
6. Failure to present evidence of negligent rescue efforts.
¶28 In his petition for postconviction relief, Ford alleged that the responding law
enforcement officers negligently failed to ensure that Paul’s airway was clear before
initiating CPR, and thus failed to detect the dentures lodged in his throat. Further, Ford
alleged that the responding emergency medical technicians (EMTs) improperly moved Paul
before sufficiently stabilizing his neck, even though they knew he had neck injuries. Upon
these allegations, Ford claimed that Paul might have survived if the officers and EMTs had
adequately performed their duties. Additionally, Ford alleged that the State covered up the
negligence of the officers and EMTs by forging medical records.
¶29 Pursuant to these allegations, Ford claimed that his counsel was ineffective when he
failed to present evidence that Paul’s death was caused by negligent rescue efforts of law
enforcement officers and EMTs. This failure, Ford argued, denied him a “potentially
meritorious” defense that could have achieved an acquittal. The District Court found that
the trial record contained no factual support for Ford’s allegations. Further, the District
Court found that Ford offered no evidence to support his claim that counsel should have
1
The record on appeal, which does not include a trial transcript, does not document the
District Court’s denial of Ford’s motion for change of venue. Presumably, the motion was
formally denied at some point during the proceedings without a written ruling, as venue was never
changed in this case.
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presented such a defense. Accordingly, the District Court refused to grant relief on this
claim.
¶30 On appeal, Ford advances the following arguments: (1) the medical reports indicate
that Paul had injuries that were possibly caused by the EMTs; (2) there could be no trial
strategy which would allow counsel to ignore the possibility that the death was caused by
someone other than Ford; (3) the failure to hire experts and seek opinions to prove that the
death was caused by another person could be considered ineffective assistance of counsel;
(4) without holding a hearing, the District Court had no way to determine whether trial
counsel sufficiently investigated the negligent rescue efforts; (5) a hearing is necessary to
determine whether trial counsel hired a medical expert to determine what role the rescue
efforts played in Paul’s death; (6) a hearing is necessary to determine whether a medical
expert would testify that the emergency medical procedures caused Paul’s death; and (7) if
trial counsel did not investigate the use of expert medical witnesses, Ford should be allowed
to have a medical expert opine at a hearing regarding the negligent rescue efforts. These
arguments avail nothing because they are based on mere allegations which are unsupported
by the record. We conclude that the District Court properly denied relief on this claim, as
Ford has failed to comply with § 46-21-104(1)(c), MCA, which requires that postconviction
claims be grounded on facts in the record. Finley, ¶ 9.
7. Failure to adequately cross-examine a witness.
¶31 In his petition for postconviction relief, Ford alleged that the testimony of Gene
Boland (Boland) contained discrepancies. In support of this allegation, Ford claimed Boland
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testified that: (1) he observed Ford sitting at the kitchen table after the incident, drinking
from a whisky bottle and a can of beer; (2) he observed the color of Paul’s face after the
incident; and (3) he made both these observations from the front door of Ford’s apartment.
Upon these assertions, Ford argued that Boland could not have made these observations from
the front door because of the layout of the apartment. Ford also alleged that Boland’s
testimony was inconsistent with the blood found on Ford’s hands. In support of this
allegation Ford claimed that photos taken after his arrest showed blood on his hands, but the
State Crime Lab did not find any blood on the whisky bottle and beer can that Boland
claimed Ford was drinking from.
¶32 Based on these allegations, Ford claimed that his trial counsel provided ineffective
assistance when he failed to adequately cross-examine Boland regarding the discrepancies
in his testimony. Further, Ford claimed he was prejudiced by this failure because such
cross-examination would have undermined Boland’s testimony. The District Court found,
based on both the direct and cross-examination of Boland and the evidence at trial, that the
discrepancies alleged by Ford did not exist. The District Court also found that the photos
of Ford’s hands did not show any blood. Accordingly, the District Court refused to grant
relief on this claim.
¶33 On appeal, Ford claims that if trial counsel had properly cross-examined Boland, the
entirety of his testimony would have been called into question. We conclude that the District
Court properly denied relief on this claim, as it is grounded on nothing more than allegations
which are not supported by the record. As such, Ford has failed to comply with
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§ 46-21-104(1)(c), MCA, which requires that postconviction claims be grounded on facts in
the record. Finley, ¶ 9.
8. Failure to object to the introduction of evidence.
¶34 In his petition for postconviction relief, Ford claimed that his trial counsel was
ineffective when he failed to object to the introduction of three pieces of evidence at trial;
a whisky bottle and a beer can from Ford’s apartment, and Paul’s dentures. Further, Ford
claimed that his trial counsel should have objected to testimony regarding this evidence. In
support of this claim, Ford asserted that the chain of custody for these items was severed
when the original evidence tags were misplace and new tags were created. The District
Court found that the State did not place any of these items into evidence, and thus Ford’s
counsel had no need to object. Accordingly, the District Court refused to grant relief on this
claim.
¶35 On appeal, Ford abandons all of the foregoing contentions. As such, we have no
occasion to review the District Court’s decision on this issue. Ford’s appellate brief does,
however, claim that an evidentiary hearing is necessary to demonstrate the prejudice Ford
suffered after his trial counsel failed to object when the prosecution displayed evidence to
the jury, but did not submit that evidence to the court or the jury. This argument is without
merit because Ford has not specified which evidence he is referring to. Furthermore, we
could not consider this argument even if Ford had identified any particular evidence, because
no such argument was raised in his petition for postconviction relief. As we have repeatedly
held, we will not address issues raised for the first time on appeal. Griffin, ¶ 15.
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CONCLUSION
¶36 Based on the applicable postconviction statutes, we conclude that the District Court
properly denied Ford’s petition for postconviction relief without holding an evidentiary
hearing.
¶37 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ JIM RICE
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
Justice Patricia O. Cotter concurs.
¶38 In State v. Ford, we recognized that the question of when a Batson challenge must be
made in order to be timely, was one of first impression for this Court. Ford, ¶ 22. This
being so, it is hardly surprising that Ford failed in his first appeal to argue that his trial
counsel was ineffective for failing to timely assert his Batson challenge. I therefore disagree
with the Court’s decision to deny Ford’s present ineffective assistance claim because he
failed to raise it in his direct appeal. See ¶¶14, 17 above. However, the ultimate result
reached by the Court is nonetheless the correct one.
¶39 The very factor that in my judgment militates against application of the procedural bar
--that this was a case of first impression--also militates against the success on the merits of
Ford’s ineffective assistance of counsel claim. Were we to reach the merits of that claim,
we would be forced to conclude that Ford’s counsel could not be considered ineffective
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under our Strickland jurisprudence for failing to timely object to the jury array because the
issue before the Court was one of first impression. As we have said, the defendant must
prove that counsel’s performance was deficient or fell below the wide range of reasonably
acceptable conduct. Davis, ¶ 20. It cannot be sensibly argued that an attorney who is the
first in this State to appeal from the denial of a Batson challenge--who, in other words, had
no guidance from statute or case law on the timing of such a challenge--rendered the type of
deficient performance required for a Strickland claim to be sustained. So, while I disagree
with the application of the procedural bar here, I would conclude nonetheless that, as a
matter of law, Ford’s ineffective assistance claim could not survive on its merits.
¶40 Therefore, I concur.
/S/ PATRICIA O. COTTER
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