09/20/2022
DA 21-0143
Case Number: DA 21-0143
IN THE SUPREME COURT OF THE STATE OF MONTANA
2022 MT 181N
JILL MARIE LOTTER,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. CDV 2014-155
Honorable Kathy Seeley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Colin M. Stephens, Smith & Stephens, P.C., Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Tammy K Plubell,
Assistant Attorney General, Helena, Montana
Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana
Submitted on Briefs: July 8, 2022
Decided: September 20, 2022
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, we decide this case by memorandum opinion. It shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Jill Lotter appeals the First Judicial District Court’s denial of her Amended Petition
for Postconviction Relief after it concluded that she received effective assistance of counsel
at trial and on appeal. We affirm.
¶3 In 2011, a jury convicted Lotter of Attempted Deliberate Homicide of her husband.
The District Court sentenced her to serve forty years in the Montana Women’s Prison.
Lotter appealed her conviction; this Court affirmed. State v. Lotter, 2013 MT 336, 372
Mont. 445, 313 P.3d 148.
¶4 Lotter then filed a pro se Petition for Postconviction Relief. The District Court
appointed her counsel. Appointed counsel filed the Amended Petition at issue, raising five
ineffective assistance of counsel claims: 1) trial counsel ineffectively investigated and
presented Lotter’s battered woman syndrome defense; 2) trial counsel failed to preserve a
due process challenge to testimony relaying a statement by Mr. Lotter; 3) trial counsel
failed to investigate blood spatter evidence or to object to a detective’s testimony on that
topic; 4) trial counsel did not sufficiently prepare Lotter for testifying; and 5) appellate
counsel failed to raise these claims on direct appeal.
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¶5 The District Court denied claims 1, 2, 4, and 5 without a hearing. The court held a
hearing on claim 3—regarding the handling of the blood spatter evidence—and denied that
claim after considering the evidence.
¶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. Heavygun v. State, 2016 MT 66, ¶ 8, 383 Mont. 28,
368 P.3d 707. Ineffective assistance of counsel claims raise mixed questions of law and
fact, which we review de novo. Heavygun, ¶ 8.
¶7 To evaluate Lotter’s claims, we apply the two-part test announced in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Rosling v. State, 2012 MT 179, ¶ 23,
366 Mont. 50, 285 P.3d 486. First, Lotter must show that counsel’s performance was
deficient. Rosling, ¶ 23. An attorney’s conduct is considered deficient when it falls “below
an objective standard of reasonableness measured under prevailing professional norms and
in light of the surrounding circumstances.” Whitlow v. State, 2008 MT 140, ¶ 20,
343 Mont. 90, 183 P.3d 861. Second, she must show that counsel’s deficient performance
prejudiced her defense. Rosling, ¶ 23. Prejudice occurs when there is a reasonable
probability that, absent error, the trial outcome would have been different. Sartain v. State,
2012 MT 164, ¶ 11, 365 Mont. 483, 285 P.3d 407.
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Claim 1: Ineffective Investigation and Presentation of Battered Woman Syndrome
Defense
¶8 Lotter argues that her trial attorneys, Gregory Jackson and Chad Wright, were
ineffective because they failed to present evidence of abuse that would have laid the
foundation for expert testimony establishing battered woman syndrome as a defense.
¶9 Lotter’s defense at trial was that she was justified in using force against her husband
because of the history of abuse that she had experienced. Her trial counsel gave notice that
they planned to use expert witnesses to testify about the behavior of individuals in abusive
relationships. On the State’s motion in limine, the District Court ruled that Lotter could
call the experts if she could establish a proper foundation. After Lotter testified about her
experiences with her husband, the District Court determined that she had not provided
enough evidence of abuse to lay the foundation to allow an expert to testify on the matter.
¶10 Lotter appealed the exclusion of expert testimony to this Court. Lotter, ¶ 2. We
reviewed the record and affirmed. Lotter did present evidence of her husband’s demeaning
and degrading comments, but we held that her “vague testimony about rages [did not]
establish the multiple cycles of violence necessary to provide a foundation for battered
woman syndrome.” Lotter, ¶ 19. Now, Lotter asserts that her trial counsel was ineffective
in developing her history of abuse.
¶11 Lotter has not offered additional evidence of abuse that her trial counsel failed to
investigate and present. She offers only facts from the trial record, which we concluded
were insufficient to lay the foundation for the expert testimony. Lotter’s trial counsel did
not ignore evidence of abuse; indeed, trial counsel examined Lotter at length regarding her
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relationship with her husband. Lotter has not shown more compelling evidence her trial
counsel could have presented.
¶12 Because Lotter failed to meet the first Strickland prong, deficiency, the District
Court properly denied this claim. We need not address the prejudice prong. Sartain, ¶ 11.
Claim 2: Failure to Preserve Due Process Challenge to Testimony
¶13 Lotter argues that her trial attorneys should have preserved a due process challenge
to testimony by an emergency responder. Fire chief Jerry Sheperd testified that when he
responded to the incident, Lotter’s husband stated, “This is the third time she’s tried to kill
me.” Mr. Lotter had no memory of making the statement.
¶14 Lotter’s attorney Chad Wright moved to exclude Mr. Lotter’s statement on hearsay
and confrontation grounds. Both motions failed. Wright then cross-examined Chief
Sheperd but was unable to impeach him. We held on direct appeal that the District Court
did not abuse its discretion in admitting the evidence as a prior inconsistent statement, but
we declined to consider Lotter’s new due process argument. Lotter, ¶¶ 29-32. Wright
states in his postconviction affidavit that he thought he had sufficiently argued the
unreliability of Mr. Lotter’s statement. Wright admits, however, that he did not preserve a
due process challenge to the statement and that he “did not have a tactical reason” for not
doing so. The District Court was not persuaded that a due process challenge would have
succeeded, even if Wright had raised one. Nor are we.
¶15 “[D]ue process considerations may prevent convictions where a reliable evidentiary
basis is totally lacking.” State v. White Water, 194 Mont. 85, 90, 634 P.2d 636, 639 (1981).
The reliability of Mr. Lotter’s statement in this case was supported by an appropriate
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evidentiary basis. The prosecution established that there had been two prior unexplained
incidents involving serious injury to Mr. Lotter and that Chief Sheperd had been dispatched
to both; that there was a financial motive for Lotter’s crime; and that Lotter showed a lack
of concern for her husband’s health after her attack on him. See Order on Petition for
Postconviction Relief at 13, Lotter v. State, No. CDV-2014-155 (Mont. First Judicial Dist.
Feb. 22, 2019). Both Mr. Lotter and Chief Sheperd testified at trial and were available for
cross-examination. The State established sufficient indicia of reliability of Mr. Lotter’s
statement. Its admission would not have violated due process. Wright thus was not
deficient for failing to preserve a due process challenge, and the District Court properly
denied this claim.
Claim 3: Failure to Investigate and Respond to Blood Spatter Evidence
¶16 Lotter argues that her trial attorneys failed to investigate the blood spatter evidence
presented at trial and failed to object to the expert testimony on that topic. Detective Cory
Olson testified at trial about the general mechanics of blood spatter and the specific nature
of the blood spatter he documented in the Lotters’ home. Lotter’s attorney Gregory
Jackson stated in his postconviction affidavit that Detective Olson’s testimony regarding
the blood spatter evidence was “completely unexpected” and that he was not prepared to
question the detective. The District Court set a hearing to develop a record on the matter.
¶17 After the hearing, the District Court concluded that Jackson’s performance was
neither deficient nor prejudicial. The District Court found that Jackson, an attorney with
thirty-five years of experience at the time, questioned the detective’s qualifications to
testify about blood spatter and determined that the detective was qualified. Despite
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Jackson’s belief that his cross-examination could have been more extensive had he been
better prepared, the District Court concluded that Jackson had used his experience and
training to determine that Detective Olson was qualified and that the blood spatter was
“helpful, not harmful, to the defense.” Given those reasonable determinations, the court
decided that Jackson’s performance “fell within the wide range of professional
competence.” The court also found that in the twenty-seven-page transcript of the
prosecution’s closing, the prosecutor had mentioned blood spatter only twice and briefly;
that the blood spatter evidence was “hardly a lynchpin” of the case; and that Lotter had not
shown a reasonable probability that the result of the proceeding would have been different.
¶18 When evaluating an ineffective assistance of counsel claim, “every effort must be
made ‘to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time.’” Whitlow, ¶ 15 (quoting Strickland, 466 U.S. at 689). “‘Self-proclaimed
inadequacies on the part of trial counsel in aid of a client on appeal are not persuasive.’”
State v. Weldele, 2003 MT 117, ¶ 69, 315 Mont. 452, 69 P.3d 1162 (quoting People v.
Beagle, 6 Cal. 3d 441 (1972), superseded by statute on other grounds).
¶19 The District Court made no error when it concluded that Jackson’s handling of the
blood spatter testimony was neither deficient nor prejudicial. Lotter does not dispute
Detective Olson’s qualifications. Though she argues that the State effectively used the
detective’s testimony to refute her theory of defense, she does not explain what Jackson
should have unearthed about the evidence that would have made a difference. Jackson also
used the blood spatter evidence in his own closing in support of Lotter’s defense. Jackson’s
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later-expressed sentiment of feeling unprepared for the detective’s testimony is not
persuasive evidence of deficient performance in a case that was well tried. Lotter has not
met her burden to show that additional efforts by counsel reasonably could have affected
the outcome of the case against her. The District Court properly denied this claim.
Claim 4: Insufficient Preparation of Defendant Before She Testified
¶20 At trial, Lotter testified in support of her justifiable use of force theory of defense.
She argues that her trial attorneys failed to prepare her for testimony and
cross-examination.
¶21 Lotter provides no facts to support the claim that her counsel failed to prepare her
to testify. She has not provided information regarding time (or lack of time) counsel spent
preparing with her or specific topics that counsel should have covered but did not. Without
developing a specifically alleged deficiency, Lotter has failed to overcome the presumption
that counsel performed within reasonable professional norms. Whitlow, ¶ 15 (citing
Strickland, 466 U.S. at 689). The District Court properly denied this claim.
Claim 5: Ineffective Assistance of Appellate Counsel
¶22 Lotter argues that her appellate counsel erred by failing to raise any issues regarding
Detective Olson’s blood spatter testimony on direct appeal. We evaluate ineffective
assistance of appellate counsel claims with the same two Strickland questions—whether
counsel’s performance was deficient and whether that deficient performance prejudiced
the defendant. Rose v. State, 2013 MT 161, ¶ 15, 370 Mont. 398, 304 P.3d 387.
“[A]ppellate counsel need not raise every colorable issue on appeal. Our presumption of
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effective assistance of appellate counsel will be overcome only when ignored issues are
clearly stronger than those presented.” Rose, ¶ 28 (citations omitted).
¶23 A party petitioning for postconviction relief cannot raise claims “that were or could
reasonably have been raised on direct appeal.” Section 46-21-105(2), MCA. Usually,
however, “the record is insufficient to determine why counsel acted as alleged. In those
instances, the ineffective assistance claim is not susceptible to review on direct appeal, and
should be brought in a petition for postconviction relief.” State v. Stratton, 2017 MT 112,
¶ 9, 387 Mont. 384, 394 P.3d 192. In her Brief in Support of Amended Petition for
Postconviction Relief, Lotter conceded that only the issue of Detective Olson’s testimony
(claim 3) “could plausibly have been raised on appeal.” The District Court determined that
claim 3 was not “sufficiently record-based to implicate ineffective assistance of appellate
counsel.” We agree.
¶24 Lotter’s appellate counsel did raise two issues on appeal: whether the District Court
erred by excluding Lotter’s proposed expert testimony regarding abusive relationships and
by admitting her husband’s statement to Chief Sheperd. This Court classified Lotter’s
appeal for and heard oral argument on the case. Lotter’s appellate counsel conceivably
could have raised an issue regarding the admission of Detective Olson’s testimony, but
Lotter presents no compelling argument that this claim was stronger than the issues
appellate counsel did choose to raise. The District Court did not err when it denied this
claim.
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Cumulative Error
¶25 Finally, Lotter argues that her five ineffective assistance of counsel claims should
have been considered cumulatively and thus that the District Court abused its discretion
when it held a hearing on claim 3 but denied the other four claims without a hearing.
¶26 When a district court makes a discretionary ruling in a postconviction proceeding,
such as whether to hold an evidentiary hearing, we review for an abuse of discretion. Lacey
v. State, 2017 MT 18, ¶ 13, 386 Mont. 204, 389 P.3d 233.
¶27 This Court has acknowledged the cumulative error doctrine, which is the
accumulation of errors that prejudice a defendant’s right to a fair trial, but noted that mere
allegations of error without proof of prejudice are insufficient to satisfy the doctrine. State
v. Grant, 221 Mont. 122, 137, 717 P.2d 562, 572 (1986). Lotter relies on the Ninth Circuit
case Sanders v. Ryder in her briefing, which states that “[s]eparate errors by counsel at
trial and at sentencing should be analyzed together to see whether their cumulative effect
deprived the defendant of his right to effective assistance.” 342 F.3d 991, 1001 (9th Cir.
2003) (emphasis added).
¶28 As discussed above, Lotter has failed to demonstrate that any of her ineffective
assistance claims rose to “errors.” The District Court thus was not obligated to consider
the cumulative effect of the claims. Rather, the court was allowed, pursuant to
§ 46-21-201(1)(a), MCA, to dismiss the petition without a hearing on each claim for which
it determined the petitioner had failed to state a claim for relief. See State v. Finley,
2002 MT 288, ¶ 9, 312 Mont. 493, 59 P.3d 1132 (holding that unsupported allegations do
not entitle a petitioner to an evidentiary hearing). As such, the District Court did not abuse
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its discretion in dismissing Lotter’s Amended Petition after holding a hearing on only one
claim.
¶29 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. This appeal presents
no constitutional issues, no issues of first impression, and does not establish new precedent
or modify existing precedent. The District Court correctly applied the law in concluding
that Lotter failed to establish her claims of ineffective assistance of counsel. Its order
denying her Amended Petition is affirmed.
/S/ BETH BAKER
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
Justice Jim Rice has recused himself and did not participate in the decision of this case.
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