September 17 2013
DA 12-0056
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 270
STATE OF MONTANA,
Plaintiff and Appellee,
v.
ISAIAH MAURICE MORSETTE,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and For the County of Blaine, Cause No. DC 09-22
Honorable John C. McKeon, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jennifer A. Hurley, Hurley Kujawa, PLLC, Butte, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; Jonathan M. Krauss, Assistant
Attorney General, Helena, Montana
Donald A. Ranstrom, Blaine County Attorney, Chinook, Montana
Submitted on Briefs: August 7, 2013
Decided: September 17, 2013
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Morsette appeals from his June 2011 conviction of sexual intercourse without
consent. We affirm.
¶2 Morsette raises the following issues on appeal:
¶3 1. Did the State violate Morsette’s right to a speedy trial?
¶4 2. Did Morsette receive ineffective assistance of counsel when his attorney failed to
object to evidence at trial?
¶5 3. Did the State violate Morsette’s right to due process by using his silence after
arrest against him at trial?
¶6 4. Is Morsette entitled to a new trial based upon cumulative error?
PROCEDURAL AND FACTUAL BACKGROUND
¶7 Morsette became the manager of a restaurant in Chinook, Montana, in June 2009. As
manager he supervised other employees, several of whom were teen-aged girls. In August
2009, one of those girls, a 15-year-old referred to as S.M., agreed to meet Morsette after
work. He bought some alcohol and rented a motel room. S.M. testified that she and
Morsette went to the motel room and drank until she lost consciousness. She testified that
she later woke to find Morsette having intercourse with her. Two weeks later Morsette quit
his job. That same day the restaurant owner met with several of the female employees and
their mothers. During that meeting S.M. told the others that Morsette had sexually assaulted
her. Morsette was arrested that day in Havre.
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¶8 Morsette testified at trial that he often related inappropriately to the young female
employees. He admitted that he made overtly sexual remarks, offered to buy alcohol, talked
about sneaking out, and suggested that they drink with him after work. He acknowledged
this conduct and conceded that it was wrong. As to the incident with S.M., Morsette testified
that at her request he bought a bottle of alcohol for her at a local bar, and that he then walked
to a motel and rented a room for $50. He testified that he took a shower in the motel room
and then went back to the restaurant to work the rest of his shift. He testified that after work
he gave the alcohol to S.M. but then left her and walked to a bar. He testified that after he
returned to the motel room to retrieve his identification, he stayed at the bar, drank and
played pool. Morsette testified that after spending some time in the bar he drove to Havre to
spend the night at a friend’s house. He testified that at the time of his arrest he was “pretty
shocked” and “didn’t know what was going on.”
¶9 In June 2011, a jury found Morsette guilty of sexual intercourse without consent
pursuant to § 45-5-503, MCA. The District Court sentenced Morsette to the Montana State
Prison for 35 years with 10 years suspended. Morsette appeals.
STANDARD OF REVIEW
¶10 The applicable standard of review will be noted in the discussion of each issue.
DISCUSSION
¶11 Issue 1: Did the State violate Morsette’s right to a speedy trial?
¶12 A district court considering a speedy trial claim must determine the relevant facts and
then assess whether those facts demonstrate a denial of the right to speedy trial. State v.
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Ariegwe, 2007 MT 204, ¶ 119, 338 Mont. 442, 167 P.3d 815. The facts are evaluated under
four factors: the length of delay; the reasons for the delay; the accused’s response to the
delay; and prejudice to the accused. Ariegwe, ¶ 34. This Court reviews the findings of fact
to determine whether they are clearly erroneous. Ariegwe, ¶ 119. The district court’s
decision on whether the facts demonstrate a denial of speedy trial is a question of
constitutional law that this Court reviews de novo to determine whether it is correct.
Ariegwe, ¶ 119.
¶13 Morsette filed two motions to dismiss for lack of speedy trial, and the District Court
denied both after making thorough findings of fact. A total of 662 days elapsed between
Morsette’s arrest and the beginning of his trial. This is sufficient elapsed time to trigger a
speedy trial inquiry. State v. Couture, 2010 MT 201, ¶ 49, 357 Mont. 398, 240 P.3d 987.
The District Court carefully divided the elapsed time into nine periods that varied from 4
days to 164 days. After considering the facts and reasons for each discrete time period, the
District Court allotted to the State the responsibility for 321 days. Much of the time
allocated to the State was “institutional” delay, which is delay inherent in the criminal justice
system caused by circumstances largely beyond the control of the State or the defendant.1
Accordingly, it does not weigh heavily against the State, State v. Blair, 2004 MT 356, ¶ 19,
324 Mont. 444, 103 P. 3d 538. The District Court allocated the responsibility for 341 days to
Morsette. While Morsette requests that this Court re-allocate some of the time to the State, it
is clear that the District Court thoroughly considered the facts, both as to the discrete time
1
For example, in this case one period of institutional delay was the time consumed when the District Court declared a
mistrial after commencement of the first trial of the offense, due to Morsette’s illness and inability to continue.
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periods involved and the reasons for each of them. The District Court’s factual decision was
not clearly erroneous.
¶14 The next factor requires consideration of the accused’s responses to the delay. The
District Court found that Morsette caused or agreed to much of the pretrial delay. He caused
delay to retain private counsel; he sought a continuance because his attorney was going on a
trip; his health condition caused a mistrial when he could not continue after an initial attempt
to bring the charges to trial; and a substantial delay was caused when Morsette sought a
second mental health evaluation when he disagreed with an initial evaluation. Other than the
fact that he moved to dismiss claiming denial of speedy trial, the District Court found that
Morsette failed to exhibit “the timeliness, persistence and sincerity indicative of an actual
desire for speedy trial.”
¶15 The District Court reviewed whether the pretrial delay had prejudiced Morsette,
considering whether there was oppressive pretrial detention; the level of anxiety and concern
by the accused; and the loss of memory and evidence. While there was a significant period
of pretrial incarceration, the District Court found that bail had been set early and at a
reasonable amount ($25,000). Morsette made bail in February 2010, but was out only 15
days when he was charged with a new offense and his bail was revoked. When the amount
was later reduced to $2,000 at Morsette’s request, he did not make bail. The District Court
also considered Morsette’s argument that the pretrial incarceration was oppressive because
he was in solitary confinement much of the time, and found that he was in solitary because
he “had difficulty getting along with others at the detention facility and . . . threats to his
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safety had been reported.” The District Court found no material impact on Morsette’s
defense from unavailable witnesses or fading memory. The District Court found no
prolonged disruption to Morsette’s financial resources, specifically finding that his reports of
employment history and income potential were misrepresented and self-serving.
¶16 On balance the District Court found that the State had overcome any presumption of
prejudice to Morsette arising from the length of the delay. We find no reason to disturb the
District Court’s conclusions concerning speedy trial and affirm the decision to deny
Morsette’s motions to dismiss.
¶17 Issue 2: Did Morsette receive ineffective assistance of counsel when his attorney
failed to object to evidence at trial?
¶18 Claims of ineffective assistance of counsel arising under the Montana (Art. II, sec. 24)
or United States (Sixth Amendment) Constitutions present mixed questions of law and fact
that this Court reviews de novo. State v. Gunderson, 2010 MT 166, ¶ 66, 357 Mont. 142,
237 P.3d 74. We review such decisions under the two-pronged test established in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).
¶19 Strickland requires that a defendant asserting a claim of ineffective assistance of
counsel must establish that counsel’s performance fell below an objective standard of
reasonableness and that there is a reasonable probability that but for counsel’s errors the
result of the trial would have been different. Gunderson, ¶ 67. An attorney is not required to
make all possible objections during a trial, and may legitimately decide to forego certain
objections as a matter of trial tactics. Claussel v. State, 2005 MT 33, ¶ 20, 326 Mont. 63,
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106 P.3d 1175; Riggs v. State, 2011 MT 239, ¶ 53, 362 Mont. 140, 264 P.3d 693. There is a
strong presumption that an attorney’s conduct falls within the wide range of reasonable
professional service, and an attorney is not ineffective because another attorney might have
proceeded differently. Riggs, ¶ 10.
¶20 At trial the State presented testimony about Morsette’s relationships with his teenaged
female employees, including that he asked them to hang out and drink with him. There was
testimony that Morsette asked another employee if she had girlfriends he could meet and
whether she could get him any “sex pills.” There was testimony that Morsette would brush
against the female employees, touch them, and flirt with them. There was testimony that he
was seen in the company of women who were not his significant other and mother of his
children. On appeal Morsette contends that this evidence was prejudicial, that it would have
been excluded upon a proper objection, and that there was no plausible justification for
failing to object to it. The State contends that there were sound tactical reasons for not
objecting to this evidence and that failing to object was reasonable and not ineffective
assistance. Both the State and Morsette agree that the claim of ineffective assistance can be
reviewed on the record on appeal in this case.
¶21 Morsette has not satisfied his burden to overcome the presumption that he was
provided effective assistance of counsel. In a criminal trial, defense counsel’s trial tactics are
necessarily constrained by the facts and evidence that will ultimately be examined by the
jury. Morsette’s attorney was faced with defending a client whose version of events the
night of the crime would likely be viewed as implausible and unpersuasive by a jury.
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Morsette’s attorney certainly would have known that his client, if he testified, would likely
have to admit that he bought alcohol on the night of the event and that he had rented a motel
room. There was independent evidence of both facts. He also knew that the evidence would
show that Morsette sent a text message to the victim and arranged to meet her when the
restaurant closed that night.
¶22 In the face of this evidence, Morsette admitted the victim’s version of the events up to
the point after the restaurant closed and he gave her the alcohol he bought earlier. He
testified that she then went on her own way and that he went to a bar where he had a few
drinks and shot pool. He said that he then drove to Havre and spent the night at the house of
his friend John. He claimed that he never went to the motel room with the victim, that he
never drank with her, and that he never had sex with her.
¶23 It is not beyond the range of reasonable professional service to conclude that defense
counsel here would recognize the difficulty of convincing a jury to believe that Morsette
engaged in detailed planning for his meeting with the victim, but abandoned the enterprise
for no apparent reason to shoot pool and drive to Havre. The obvious tactic adopted by the
defense was to admit that Morsette often engaged in inappropriate behavior with his young
employees, but that he did so innocently. He acknowledged in his testimony that in
retrospect he acted inappropriately, but that he just wanted to be a “cool boss.” But, he knew
where to draw the line with his admissions. By admitting to flaws and failures while
claiming to have nothing to hide, there was some chance to develop reasonable doubt in the
mind of at least one member of the jury. Letting in all the evidence arguably minimized
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Morsette’s conduct toward the victim by showing that he acted similarly with the other
employees and none of them were claiming that he sexually assaulted them.
¶24 Morsette’s attorney followed this theory of defense beginning with his opening
statement, emphasizing that “inappropriate conduct does not always mean illegal conduct”
and that the case was about “impropriety rather than illegality.” This was followed by
Morsette’s testimony admitting most of the victim’s account of the evening of the crime, but
denying that he went to the motel and sexually assaulted her. He testified that he now knows
that as an adult and a boss he “crossed a boundary” with his young female employees.
¶25 At the request of the defense the District Court gave a cautionary instruction about
evidence of “other acts.”
The State has offered evidence that the Defendant at another time engaged in
other acts. That evidence was not admitted to prove the character of the
Defendant or to show he acted in conformity therewith. The only purpose of
admitting the evidence was to show proof of motive, opportunity, plan,
knowledge, identity, absence of mistake or accident. You may not use that
evidence for any other purpose.
The Defendant is not being tried for those other acts. He may not be convicted
for any other offense than that charged in this case. For the jury to convict the
Defendant of any other offense than that charged in this case may result in
unjust double punishment of the Defendant.
The District Court gave this instruction twice during the course of the trial and again in the
final instructions to the jury. The defense relied upon this instruction in closing argument
and again explained Morsette’s contention that he acted only inappropriately, not illegally,
with all his female employees.
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¶26 Morsette’s attorney reasonably adopted this trial strategy in the face of a difficult
factual defense presented by his client. Morsette has not established that counsel’s
performance or trial tactics fell below a reasonable standard of professional services.
¶27 Issue 3: Did the State violate Morsette’s right to due process by using his silence after
arrest against him at trial?
¶28 This Court reviews a district court’s decision on a motion for mistrial to determine
whether the defendant was denied a fair and impartial trial. State v. Novak, 2005 MT 294,
¶ 25, 329 Mont. 309, 124 P.3d 182. A mistrial is an exceptional remedy and remedial action
short of a mistrial is a preferred remedy. State v. Flores, 1998 MT 328, ¶ 17, 292 Mont. 255,
974 P.2d 124. A district court’s decision on a motion for mistrial is entitled to deference and
will be affirmed if the trial judge acted rationally and responsibly. Novak, ¶ 25.
¶29 Some background is required for this issue. Morsette testified at trial to an alibi: that
he left Chinook without assaulting the victim and spent the night at a friend’s place in Havre.
Morsette did not disclose this defense prior to trial as required by § 46-15-323(2), MCA, nor
did he provide a list of witnesses to support the defense as required by § 46-15-323(6)(a),
MCA. While Morsette did not disclose his story to law enforcement or the prosecution, he
discussed it during a court-ordered psychiatric evaluation, and it appeared in the
psychiatrist’s report. During opening statements Morsette’s attorney explained the alibi to
the jury.
¶30 At that point the State made a motion asking the District Court to disallow any
evidence of the alibi because of Morsette’s failure to make the disclosures required by § 46-
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15-323, MCA. The District Court held a hearing outside the presence of the jury and denied
the State’s motion because the alibi story was previously disclosed during the evaluation.
However, as a sanction for failing to follow the statute, the District Court ordered that only
Morsette and the defense investigator could testify. The District Court specifically told the
State that it could, through witnesses or cross-examination, “question the credibility of these
contentions by the defendant that he was not in the county at the time.”
¶31 As noted, Morsette testified in his own defense, claiming that he left Chinook and
went to Havre to his friend’s place during the time that the victim was attacked. On cross-
examination, the State began by noting that Morsette had been in custody since 2009, and
then asked where he had gone in Havre. The following exchange occurred:
Q. And if you’d have told officers that you were at a different place, would
they have investigated that, when you were arrested I mean?
A. I don’t think they asked me.
Q. Isn’t that your job—their job is to investigate where persons say that they
were on a given time when they are alleged to have committed a crime
elsewhere?
A. If they are told, I guess.
Q. And you’re the only one that had the power to tell them, aren’t you?
A. Where I was?
Q. Un-huh.
A. There’s some other people that could have told them where I was.
Q. Who would that have been?
A. My friend John whose house it was.
At this point the defense objected and there was a hearing out of the presence of the jury.
¶32 The defense contended that the State’s questions were an “improper comment on the
defendant’s exercise of his rights under Miranda,” and asked for a mistrial. The State
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responded that there was no inquiry about Miranda and that Morsette had “opened the door”
by giving his alibi story. The defense contended that the jury had been “contaminated” and
was “toast” and that the proper remedy was a mistrial; if not, then a “strong cautionary
instruction” should be given. Since there were two defense attorneys, the District Court
asked the other whether he agreed to the need for a mistrial, and that attorney stated: “I do
agree with the cautionary instruction.”
¶33 The District Court then reviewed the transcript of the State’s questions and Morsette’s
answers. The District Court denied the motion for a mistrial, noting that the prosecutor had
not mentioned Morsette’s exercise of Miranda rights and had not suggested that any
inference should be drawn from Morsette’s silence. The District Court further stated that a
cautionary instruction to the jury might be harmful to the defense by calling attention to the
issue, but that a limitation on the State’s questions about Miranda would be in order.
¶34 The defense then asked for and got a recess to discuss the situation with their client.
When Morsette and his attorneys returned, they announced that they “would prefer a
cautionary instruction to the prosecution” outside the hearing of the jury. The District Court
then instructed the prosecution that no mention could be made of whether Morsette exercised
his Miranda rights. The trial proceeded, and in closing argument the prosecution did not
refer to Morsette’s failure to disclose his alibi to law enforcement.
¶35 Morsette contends on appeal that the State’s questions to him as quoted above
violated his right to due process because they constituted an attack upon his silence after
receiving Miranda warnings. It is well established that impeachment use of a defendant’s
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silence after arrest and after receiving Miranda warnings is a violation of due process. Doyle
v. Ohio, 426 U.S. 610, 618-19, 96 S. Ct. 2240, 2245 (1976); State v. Wagner, 2009 MT 256,
¶ 16, 352 Mont. 1, 215 P.3d 20.
¶36 As this Court noted in Wagner:
Underlying Doyle is the principle that Miranda warnings contain an implicit
assurance that exercising Miranda rights will carry no penalty, and that “it
would be fundamentally unfair and a deprivation of due process to allow the
arrested person’s silence to be used to impeach an explanation subsequently
offered at trial.” Doyle, 426 U.S. at 618, 96 S. Ct. at 2245.
Wagner, ¶ 16. In Wagner this Court found plain error and reversed the conviction despite
the failure of defense counsel to object at trial. However, the factual differences between
Wagner and the present case are significant. During an interview with detectives, Wagner
said “something to the effect” that he wanted to speak to an attorney and that he did not want
to dig himself a deeper hole. The prosecution used that invocation of counsel “in all phases
of the trial:” during opening statement, during the case-in-chief, during cross-examination,
and in closing argument. Wagner, ¶ 18. The prosecution employed similar tactics in cross-
examination and in closing argument in the cases considered by the Supreme Court in Doyle.
Doyle, 426 U.S. at 613-16, 96 S. Ct. at 2242-44.
¶37 The State’s questions that Morsette complains of on appeal are similar to those
involved in State v. Godfrey, 2004 MT 197, 322 Mont. 254, 95 P.3d 166. In that case the
prosecutor asked the defendant about the amount of time he had to “think up an explanation”
for what happened, and about whether the defendant’s trial testimony was “the first time that
anyone has really heard this explanation.” Godfrey, ¶ 18. Godfrey argued on appeal that the
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questions were a violation of the Doyle rule and that this Court should undertake plain error
review of the issue.
¶38 This Court examined the issue and upheld the conviction. While the questions to
Godfrey were “inadvisable,” this Court determined that they “were more a comment on
Godfrey’s story than on his silence.” Godfrey, ¶ 37 (emphasis original). The questions
asked in the present case are sufficiently similar to those in Godfrey that we reach the same
conclusion. The prosecutor here asked questions that attacked the veracity of Morsette’s
story and its possible recent fabrication. The questions were more about the story than about
any silence. It is not improper for a prosecutor to attempt to convince a jury that a
defendant’s story is a recent fabrication. State v. Tadewaldt, 2010 MT 177, ¶ 22, 357 Mont.
208, 237 P.3d 1273.
¶39 Contrasting Wagner, the prosecution here did not make or attempt to make unfair use
of Morsette’s comments or silence, if any, after receiving Miranda warnings. The
prosecution did not pursue the issue in either opening or closing statements or in the
examination of any other witness. The cross-examination of Morsette was more circumspect
and focused on the defendant’s alibi—his version of the events on the night in question.
Moreover, the prosecutor was given some leeway in the cross-examination as a sanction for
Morsette’s failure to disclose the alibi as required by Montana law. Giving deference to the
District Court’s decision, we do not find that denial of the motion for a mistrial was irrational
or irresponsible under the circumstances.
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¶40 Issue Four: Whether Morsette’s conviction should be reversed based upon cumulative
error.
¶41 Morsette contends that this Court should reverse his conviction based upon
cumulative error. Cumulative error can occur when “a number of errors, taken together,
prejudiced a defendant’s right to a fair trial.” State v. Ferguson, 2005 MT 343, ¶ 126, 330
Mont. 103, 126 P.3d 463. The concept of cumulative error should only be applied when
there has been error. State v. Brasda, 2003 MT 374, ¶ 36-37, 319 Mont. 146, 82 P.3d 922.
¶42 Having found no error in Morsette’s conviction, we have no occasion to apply the
concept of cumulative error.
CONCLUSION
¶43 The District Court’s conclusion, following an evaluation of the relevant factors, that
Morsette was not denied his right to a speedy trial was correct. Morsette did not establish
that his trial counsel’s performance was deficient or that his counsel was ineffective. The
prosecutor’s cross-examination of Morsette regarding his alibi did not violate due process.
Morsette has not established that cumulative error occurred in his trial.
¶44 Morsette’s conviction is affirmed.
/S/ MIKE McGRATH
We concur:
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ LAURIE McKINNON
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/S/ BRIAN MORRIS
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