Watson v. State , 2004 MT 308N ( 2004 )

No. 03-716
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 308N
JAMES WATSON,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: The District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 95-372,
Honorable Russell C. Fagg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
James Watson, Pro Se, Deer Lodge, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Jennifer Anders,
Assistant Attorney General, Helena, Montana
Dennis Paxinos, County Attorney; Daniel L. Schwarz, Chief
Deputy County Attorney, Billings, Montana
Submitted on Briefs: October 19, 2004
Decided: November 9, 2004
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. Its case title, Supreme Court cause number and disposition shall be included
in this Court's quarterly list of nonciteable opinions published in the Pacific Reporter and
Montana Reports.
¶2 The Thirteenth Judicial District Court, Yellowstone County, denied James Watson's
petition for postconviction relief after holding an evidentiary hearing pursuant to this Court's
instructions on remand in Watson v. State, 2002 MT 329, ¶ 17, 313 Mont. 209, ¶ 17, 61 P.3d
759, ¶ 17. Watson appeals, and we affirm.
¶3 The issue is whether the District Court erred in denying postconviction relief on the
basis of testimony from defense counsel, because defense counsel testified without the
benefit of an order made pursuant to Petition of Gillham (1985), 216 Mont. 279, 704 P.2d
1019, insulating them from disciplinary action for disclosing privileged communications.
¶4 We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of our
1996 Internal Operating Rules, as amended in 2003, which provides for memorandum
opinions. The issue is clearly controlled by settled Montana law. In Gillham, 216 Mont. at
281, 704 P.2d at 1020, we stated a defense attorney is under an affirmative duty, in testifying
regarding a client's allegation of the attorney's incompetence, to disclose communications
with the client relevant to the allegations. Therefore, whether Watson's attorneys testified
with or without the benefit of a Gillham order is immaterial. Moreover, some of the
2
testimony to which Watson now objects was elicited by his own counsel. We will not
review the propriety of testimony to which counsel made no objection at trial and, in fact,
elicited. See State v. Hanson (1997), 283 Mont. 316, 324, 940 P.2d 1166, 1171.
¶5 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
3