Watson v. State , 313 Mont. 209 ( 2002 )

No. 00-718
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 329JAMES WATSON,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
Honorable Susan P. Watters, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
James Watson, Pro Se, Deer Lodge, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Stephen C.
Bullock, Assistant Attorney General, Helena, Montana
Dennis Paxinos, County Attorney; Mark A. English,
Deputy County Attorney, Billings, Montana
Submitted on Briefs: September 5, 2002
Decided: December 20, 2002
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 James Watson (Watson) appeals from an order entered by the
Thirteenth Judicial District Court, Yellowstone County, denying his
petition for postconviction relief. We reverse and remand for an
evidentiary hearing.
¶2 We address the following issue on appeal: Whether the
District Court erred in determining that Watson’s ineffective
assistance of counsel claim was record-based and should have been
raised on direct appeal.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Watson was charged by information on June 12, 1995, with the
crimes of aggravated kidnapping under § 45-5-303(1), MCA, and
felony robbery under § 45-5-401(1)(b), MCA. The charges stemmed
from a March 25, 1995, incident in which Watson and two other
individuals, beat, robbed and kidnapped a pizza delivery man at
knife-point. Watson entered a guilty plea to both charges on
September 1, 1995. On September 29, 1995, a sentencing hearing was
held. Dr. Lowell Stratton, the psychiatrist who examined Watson,
testified as to Watson’s mental condition.
¶4 On October 13, 1995, the District Court entered its judgment.
Watson was sentenced to the Department of Corrections for ten
years for the charge of aggravated kidnapping, with an additional
three years for the use of a weapon. On the charge of robbery,
Watson was sentenced to ten years, with an additional two years for
the use of a weapon. The sentences were ordered to run
consecutively. Watson did not appeal.
2
¶5 On May 24, 2000, Watson filed a petition for postconviction
relief. The District Court entered its Order denying Watson’s
petition for postconviction relief on August 9, 2000. Watson now
appeals.
STANDARD OF REVIEW
¶6 The standard of review of a district court’s denial of a
petition for postconviction relief is whether the district court’s
findings of fact are clearly erroneous and whether its conclusions
of law are correct. State v. Charlo, 2000 MT 192, ¶ 7, 300 Mont.
435, ¶ 7, 4 P.3d 1201, ¶ 7. Discretionary rulings in
postconviction relief proceedings, including rulings related to
whether to hold an evidentiary hearing, are reviewed for an abuse
of discretion. State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, ¶
9, 988 P.2d 299, ¶ 9.
DISCUSSION
¶7 Did the District Court err in determining that Watson’s claim
concerning his mental condition was record-based and should have
been raised on direct appeal?
¶8 Watson claims he received ineffective assistance of counsel
when his attorney failed to question whether Watson suffered from a
mental disease or defect rendering him unable to conform his
behavior to the requirements of the law. Watson argues that if
this issue had been developed at the sentencing hearing, he would
have been sentenced to the Department of Public Health and Human
Services, pursuant to § 46-14-312, MCA, rather than the Department
of Corrections.
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¶9 In considering ineffective assistance of counsel claims in
postconviction proceedings this Court has adopted the two-pronged
test set forth by the United States Supreme Court in Strickland v.
Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.
State v. Wright, 2001 MT 282, ¶ 11, 307 Mont. 349, ¶ 11, 42 P.3d
753, ¶ 11. The two-prong test requires, first, that the defendant
bears the burden of showing that counsel’s performance was
deficient or fell below an objective standard of reasonableness.
Wright, ¶ 11. The defendant must overcome a strong presumption
that counsel’s defense strategies and trial tactics fall within a
wide range of reasonable and sound professional decisions.
Strickland, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693;
State v. Harris, 2001 MT 231, ¶ 18, 306 Mont. 525, ¶ 18, 36 P.3d
372, ¶ 18. The second prong of the test requires the defendant to
show that the deficient performance of counsel prejudiced the
defense. Wright, ¶ 11. The defendant must demonstrate the
existence of a reasonable probability that the result of the
proceeding would have been different absent counsel’s errors; a
reasonable probability is a probability sufficient to undermine
confidence in the outcome. Harris, ¶ 19.
¶10 Before reaching the merits of an ineffective assistance of
counsel claim in a postconviction relief proceeding it is necessary
to determine whether such a claim is properly before the Court or
whether the claim is procedurally barred. Wright, ¶ 12 (citing
Hagen v. State, 1999 MT 8, ¶ 11, 293 Mont. 60, ¶ 11, 973 P.2d 233,
¶ 11). Section 46-21-105(2), MCA, provides that grounds for relief
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which reasonably could have been raised on direct appeal may not be
raised thereafter in a petition for postconviction relief. This
Court has stated,
[W]here ineffective assistance of counsel claims are
based on facts of record in the underlying case, they
must be raised in the direct appeal; 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
postconviction relief.
Wright, ¶ 12 (quoting Hagen, ¶ 12).
¶11 This Court applies the statutory bar “in order to prevent the
abuse of postconviction relief by criminal defendants who would
substitute those proceedings for direct appeal and in order to
preserve the integrity of the trial and direct appeal.” State v.
Hanson, 1999 MT 226, ¶ 14, 296 Mont. 82, ¶ 14, 988 P.2d 299, ¶ 14.
¶12 The State argued and the District Court concluded that
Watson’s ineffective assistance of counsel claim was record-based
and should have been raised on direct appeal. According to the
State, the record in this case contains the transcript of the
sentencing hearing, during which Dr. Stratton testified, as well as
Dr. Stratton’s report, which was introduced as an exhibit at the
sentencing hearing. In his report, Dr. Stratton concluded that
Watson had the capacity to appreciate the criminality of his
actions and to assist in his own defense.
¶13 In Harris, this Court reviewed its recent application of § 46-
21-105(2), MCA, to determine whether certain claims of ineffective
assistance of counsel should be raised on direct appeal or in a
postconviction petition. Harris, ¶ 21 (citing State v. Whitlow,
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2001 MT 208, 306 Mont. 339, 33 P.3d 877; State v. St. Johns, 2001
MT 1, 304 Mont. 47, 15 P.3d 970). To resolve the question, we
outlined a two-step process in Harris. First, the trial record
must adequately document a challenged act or omission of defense
counsel for a defendant to raise an ineffective assistance claim on
direct appeal. Harris, ¶ 21. Second, in addition to documenting
the error, the record available to this Court on appeal must afford
sufficient understanding of the reasons for counsel’s act or
omission to answer the threshold question of whether the alleged
error expresses a trial strategy or tactical decision. Harris, ¶
21. If the record does not supply the reason for counsel’s act or
omission, the claim must be raised by petition for postconviction
relief. Harris, ¶ 21.
¶14 We set forth the following explanation for deciphering the
record and determining the appropriate forum for adjudicating
ineffective assistance of counsel claims in Harris:
Though not easily distilled into a formula, the
definitive question that distinguishes and decides which
actions are record and which are nonrecord, is why? In
other words, if counsel fails to object to the admission
of evidence, or fails to offer an opening statement, does
the record fully explain why counsel took the particular
course of action? If not, then the matter is best-suited
for post-conviction proceedings which permit a further
inquiry into whether the particular representation was
ineffective. Only when the record will fully explain why
counsel took, or failed to take, action in providing a
defense for the accused may this Court review the matter
on direct appeal.
Harris, ¶ 21.
¶15 Recently in Soraich v. State, 2002 MT 187, 311 Mont. 90, ___
P.3d ___, we held that the district court abused its discretion in
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summarily dismissing Soraich’s petition for postconviction relief.
Soraich’s ineffective assistance of counsel claim was based on his
counsel’s failure to call an investigator as a witness after
counsel had promised the jury during opening statement that the
investigator would show the State’s main witness was lying. The
district court concluded that Soraich should have raised his claim
on direct appeal, thus denying his petition for postconviction
relief. However, this Court determined the record did not contain
any information about why defense counsel had promised the jury
that the investigator’s testimony would prove Soraich’s defense,
but then failed to call the investigator as a witness. Soraich, ¶
24. “As was the case in Harris, we do not know whether the alleged
errors in this case reflect a coherent trial strategy or whether
they were reasonable and deserve deference and we refuse to
speculate.” Soraich, ¶ 24. Without being able to answer why
defense counsel failed to call the investigator as a witness, we
determined an evidentiary hearing was necessary to answer that
question and remanded to the district court.
¶16 In this matter, the record on appeal establishes that Watson’s
counsel did not question whether Watson suffered from a mental
disease or defect during the sentencing hearing. However, the
record does not reveal whether counsel’s inaction was a reasonable
tactical decision or a mistake. Because the record is void of any
evidence as to why defense counsel did not question Watson’s
mental condition, Watson could not have properly raised an
ineffective assistance of counsel claim on direct appeal.
7
Consequently, Watson’s claim of ineffective assistance of counsel
is not barred by § 46-21-105(2), MCA, but is a question which must
be resolved in a postconviction relief proceeding.
¶17 We hold that the District Court abused its discretion in
summarily denying Watson’s petition for postconviction relief; and
therefore, we reverse and remand to the District Court for an
evidentiary hearing consistent with this opinion.
/S/ JIM RICE
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We concur:
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
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Justice Terry N. Trieweiler specially concurs.
¶18 I concur with the majority's conclusion that Watson could not
have properly raised his ineffective assistance of counsel claim on
direct appeal because his counsel's reasons for the conduct he
complains of are not apparent from the record. I disagree with
Justice Cotter that Dr. Lowell A. Stratton's written report is
sufficiently specific to explain counsel's alleged omission.
¶19 I also disagree, however, with much of the language in the
majority Opinion. Although I realize the idea did not originate
with this Opinion, I disagree with the suggestion that in all
instances, we must know counsel's reason for acting or failing to
act before we are able to decide on direct appeal whether effective
assistance of counsel was provided to a criminal defendant.
Specifically, I disagree with the language in ¶ 13 of the majority
Opinion which states that, "if the record does not supply the
reason for counsel's act or omission, the claim must be raised by
petition for postconviction relief. Harris, ¶ 21."
¶20 There are some acts or omissions of counsel for which there is
no acceptable tactical explanation and which must be decided on
direct appeal lest those who have been the victims of ineffective
assistance of counsel waste away in prison while proceeding at a
snail's pace through the tortuous criminal process only to have the
critical issue decided in a proceeding in which they have no right
to the assistance of counsel. The sweeping language of the
majority Opinion suggests that very few ineffective assistance of
counsel claims can be raised on direct appeal. I disagree.
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¶21 There are many acts or omissions of counsel for which there is
no satisfactory explanation and for which the answer to the
question "why?" is irrelevant. One example is a failure of counsel
to challenge jurors for cause who demonstrate clear bias during
voir dire examination or meet some other statutory ground for
disqualification. See State v. Chastain (1997), 285 Mont. 61, 947
P.2d 57. A more extreme example would be counsel's failure to
challenge a juror for cause and then use a peremptory challenge to
excuse that same juror. By doing so, counsel would be denying his
or her client the same number of peremptory challenges provided to
the State. We have held that a greater number of peremptory
challenges for the State is presumptively prejudicial. See State
v. Williams (1993), 262 Mont. 530, 866 P.2d 1009, rev'd in part on
other grounds; State v. Good, 2002 MT 59, 309 Mont. 113, 43 P.3d
948; and King v. Special Resource Management (1993), 256 Mont. 367,
371-74, 846 P.2d 1038, 1040-42. Furthermore, there can be no
tactical justification for using a defendant's peremptory
challenges to excuse jurors who could have been excused for cause.
¶22 Other examples of where this Court has, in the past,
considered claims of ineffective assistance of counsel on direct
appeal without regard to "why" counsel acted or failed to act are
given in State v. White, 2001 MT 149, 306 Mont. 58, 30 P.3d 340.
State v. White preceded and formed the partial basis for State v.
Harris, 2001 MT 231, 306 Mont. 525, 36 P.3d 372, on which the
majority now relies. In State v. White, we observed that:
Generally, an alleged failure to object to the
introduction of evidence, or to object to the testimony
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of a witness, or object to prosecutorial misconduct at
trial has been deemed record-based, and therefore
appropriate for direct appeal. See Hagen, ¶ 20 (citing
cases and stating that "[t]he absence of an objection by
counsel–that is, a failure to object–is a fact easily
documented by reviewing the record . . ."). See also
State v. Raugust, 2000 MT 146, ¶ 41, 300 Mont. 54, ¶ 41,
3 P.3d 115, ¶ 41; State v. Hanson (1997), 283 Mont. 316,
327-29, 940 P.2d 1166, 1173-74.
State v. White, ¶ 15.
Along these same lines, counsel's own conduct at trial in
presenting the defendant's case–such as improperly
eliciting damaging testimony from a witness, or rendering
an improper opening statement or closing argument–may be
pointed to as a record-based instance of ineffective
representation. . . . [Citations omitted.]
State v. White, ¶ 17.
As indicated above, the failure to raise an objection,
generally, has been deemed record-based, and therefore
appropriate for direct appeal. See Hagen, ¶ 20.
However, decisions regarding the timing and number of
objections lie within counsel's tactical discretion.
Brown, 228 Mont. at 212, 741 P.2d at 430.
State v. White, ¶ 24.
¶23 There are any number of serious acts or omissions for which
there is no legitimate explanation by defense counsel. Failing to
object to state criticism of a defendant's choice to remain silent;
failing to object to a prejudicial jury instruction which is
incorrect as a matter of law; failing to object to incriminating
evidence which has been suppressed by the trial court; and failure
to object to improper, inflammatory and prejudicial comments of the
prosecution are all examples of ineffective assistance of counsel
for which the answer to "why" is irrelevant.
¶24 The language of the majority Opinion which mirrors and expands
on language in previous majority opinions is overly broad and will
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eventually have serious consequences for some individual sitting in
prison awaiting an opportunity to demonstrate that he or she does
not belong there because that person was denied his or her Sixth
Amendment right to effective assistance of counsel. The
opportunity to present that claim will be delayed and when it is
ultimately presented, it will inevitably be by pro se application
for postconviction relief which is a completely inadequate
substitute for representation by trained and informed counsel on
appeal.
¶25 For these reasons, while I concur with the result of the
majority Opinion in this case, I disagree with the overly and
unnecessarily broad statements made therein.
/S/ TERRY N. TRIEWEILER
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Justice Patricia O. Cotter dissents.
¶26 Watson argues that the record does not establish why his
counsel failed to inquire of Dr. Stratton whether Watson could
conform his behavior to the requirements of the law (¶ 8), and that
because the “why” cannot be determined from the record, the matter
must be resolved on postconviction proceedings. The Court agrees
with him. While I agree with the Court’s recitation of the law in
this regard, I dissent, as I did in Soraich, from the Court’s
conclusion that the “why” cannot be determined from the record.
¶27 Dr. Stratton’s report was made a part of the record. As the
District Court pointed out in its Order and Memorandum, Dr.
Stratton’s report specifically states that Watson “. . . has the
capacity to understand and meet the requirements of the law.” In
the face of such a categorical conclusion, it is impossible for me
to conclude that the record does not adequately explain why
Watson’s counsel did not ask the doctor whether Watson could
conform his behavior to the requirements of the law. The answer is
obvious: Because the doctor clearly said in his report that Watson
could conform his conduct to the law’s requirements. Why fault
counsel for failing to ask a question that has already been
answered? A remand to make the inquiry is simply senseless.
¶28 The District Court concluded that this issue, being record-
based, should have been raised on direct appeal, and further
concluded that defense counsel was not ineffective in any event for
failing to raise a frivolous argument. I agree on both grounds and
would affirm the District Court.
/S/ PATRICIA COTTER
Chief Justice Karla M. Gray joins in the foregoing dissent.
/S/ KARLA M. GRAY
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