No. 13031
I N T E SUPREME C U T O THE STATE O M N A A
H OR F F OTN
1975
- -
THE STATE OF MONTANA,
P l a i n t i f f and Respondent,
-vs -
DANIEL E. McELVEEN,
Defendant and Appellant.
Appeal from: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
Honorable Edward Dussault , Judge p r e s i d i n g .
Counsel of Record:
For Appellant :
Donald W. Molloy, Law S t u d e n t , argued, Missoula, Montana
David J. P a t t e r s o n appeared, Missoula, Montana
For Respondent :
Hon. Robert L. Woodahl, Attorney General, Helena,
Montana
John F. North appeared, A s s i s t a n t Attorney General,
Helena, Montana
Richard P. Heinz, County Attorney, argued, Polson,
Montana
Submitted: November 5, 1975
DecidedEC 3+ 0 19%
Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court.
This is a petition for post-conviction relief from a
conviction and sentence of four years in the state prison on
a charge of felony theft in the district court, Lake County.
Petitioner was tried on one count of felony theft based
on an information filed February 13, 1975, charging petitioner
with purposely or knowingly obtaining or exerting unauthorized
control over three trailer house tires and rims, valued at more
than $150, with the purpose of depriving the owner thereof.
Petitioner had a court appointed counsel for the jury
trial. Prior to, during, and after the trial, petitioner claimed
his appointed counsel inadequately represented him at all times
in question. The appointed counsel motioned to withdraw as
attorney of record subsequent to the conviction and sentencing,
this motion was granted by the district court. -The Montana De-
fender Project brought this petition on behalf of petitioner.
The issue raised by this petition is whether petitioner
received adequate representation by his court-appointed attorney
both in preparation and investigation for trial, as well as at
the trial.
In State v. Blakeslee, 131 Mont. 47, 54, 306 P.2d 1103,
this Court stated the fundamental principle:
"This defendant may be as guilty as ever felon
not hanged. He is nevertheless entitled to a
trial consistent with our Constitution and Codes.
* * *'I
The right to counsel is expressly recognized in the con-
stitutions of the United States and the State of Montana. The
Sixth Amendment to the United States Constitution provides:
"In all criminal prosecutions the accused shall
enjoy the right to a speedy and public trial * * *
and to have the assistance of counsel for his
defense. "
This concept has been held applicable to the states by virtue
of the due process clause of the Fourteenth Amendment to the
United States Constitution. Gideon v. Wainwright, 372 U.S.
In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82
L ed 1461, 1465, Mr. Justice Black said of the Sixth Amendment
protections:
" * * * The Sixth Amendment stands as a constant
admonition that if the constitutional safeguards
it provides be lost, justice will not 'still be
done.' It embodies a realistic recognition of
the obvious truth that the average defendant does
not have the professional legal skill to protect
himself when brought before a tribunal with power
to take his life or liberty, wherein the prose-
cution is presented by experienced and learned
Counsel. "
Not only is the assistance of counsel " * * * often requisite
to the very existence of a fair trial", Argersinger v. Hamlin,
407 U.S. 25, 92 S.Ct. 2006, 32 L ed 2d 530, 535, but such assis-
tance must be effective. The Ninth Circuit Court of Appeals
has recognized the right to effective counsel in Wilson v. Rose,
366 F.2d 611, 616:
" * * * In short, effective assistance of counsel
is guaranteed by the Sixth and Fourteenth Amend-
ments because it is 'essential to a fair trial'."
The right to counsel has always been a part of Montana
constitutional law. Article 111, S16, 1889 Montana ~onstitution,
provides :
"In all criminal prosecutions the accused shall
have the right to appear and defend in person and
by counsel * * *."
Article 11, S24, 1972 Montana Constitution, contains the same
language, thereby continuing the protection. This language has
been interpreted by this Court to encompass effective assistance
of counsel. State v. Bubnash, 139 Mont. 517, 366 P.2d 155.
Although petitioner was represented by court-appointed
counsel, a question remains as to whether the assistance was
effective, so as to ensure a fair trial. As the Alaska Supreme
Court said in Risher v. State, 523 P.2d 421, 423:
" * * * The mere fact that counsel represents an
accused does not assure this constitutionally-
guaranteed assistance. The assistance must be
'effective1 be of any value."
to
See,also, Wilson, supra.
The Third Circuit Court of Appeals has said in
Moore v. United States, 432 F.2d 730, 735:
"The adequacy of the representation which peti-
tioner received, which is the real issue in this
case, can only be decided on an evaluation of the
services rendered on his behalf. * * * "
To determine the adequacy of the representation, we must look
at the services rendered by appointed counsel in the context of
the reasoning set forth by Justice John C. Harrison in State v.
Forsness, 159 Mont. 105, 110, 495 P.2d 176:
"Claimed inadequacy of counsel must not be tested
by a greater sophistication of appellate counsel,
nor by that counsel's unrivaled opportunity .to
study the record at leisure and cite different
tactics of perhaps doubtful efficacy. Success
is not the test of efficient counsel, frequently
neither vigor, zeal, nor skill can overcome the
truth. 'I
Some tactic must be employed at the trial and some course must
be designed or formulated for the defense, from the time of
counsel's appointment to represent a defendant until a final
adjudication of the matter. The tactics employed, lack of
tactics, will be dealt with below.
This Court has recognized the test against which claims
of inadequacy of counsel are considered that has been adopted in
a majority of other jurisdictions. State v. Noller, 142 Mont.
35, 37, 381 P.2d 293. The test, known as the "farce and sham
test", is set out by the Fifth Circuit Court of Appeals in
Williams v. Beto, 354 F.2d 698, 704:
"It is the general rule that relief from a final
conviction on the ground of incompetent or ineffec-
tive counsel will be granted only when the trial
was a farce, or a mockery of justice, or was shock-
ing to the conscience of the reviewing court, or
the purported representation was only perfunctory,
in bad faith, a sham, a pretense, or without
adequate opportunity for conference or preparation."
In considering a question of the adequacy of a defend-
ant's representation by counsel, this Court in Noller quoted
50
the California case of People v. WeinI/cal.2d 383, 326 P.2d 457,
for the proposition that:
" * * *The handling of the defense by counsel of
the accused's own choice will not be declared
inadequate except in those rare cases where his
counsel displays such a lack of diligence and
competence as to reduce the trial to a 'farce
or a sham' * * *."
This Court went on to say in Noller at p. 38:
"Evidently the distinction, if any there is,
between cases involving representation by re-
tained or court-appointed counsel, has been
ignored in applying the aforementioned rule. * * *"
And then noted in Noller:
" * * * Hindsight cannot now be used to say what
perhaps could have been done to achieve a possible
but highly speculative result. * * * "
but if the record were not one which might be termed "open and
shut", such speculation would not be inappropriate. Williams, supra.
The record in the instant case contains facts analogous
to the reasons expressed in the landmark United States Supreme
Court decision of Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55,
77 L ed 158, 170, wherein the court said:
" * * * The right to be heard would be, in many
cases, of little avail if it did not comprehend
the right to be heard by counsel. Even the in-
telligent and educated layman has small and some-
times no skill in the science of law. If charged
with crime, he is incapable, generally, of deter-
mining for himself whether the indictment is good
or bad. He is unfamiliar with the rules of evi-
dence. Left without the aid of counsel he may
be put on trial without proper charge, and con-
victed upon incompetent evidence, or evidence
irrelevant to the issue or otherwise inadmissible.
He lacks both the skill and knowledge adequately
to prepare his defense, even though he have a
perfect one. He requires the guiding hand of
counsel at every step in the proceedings against
him. Without it, though he be not guilty, he faces
the danger of conviction because he does not know
how to establish his innocence."
It is well established in Moore v. ~ichigan,355 U.S. 155,
78 S.Ct. 191, 2 L ed 2d 167, 171, that:
" * * * The right to counsel is not a right
confined to representation during the trial on
merits. * * * "
In order to represent a defendant adequately, it is necessary
that counsel prepare for trial by attempting to discover all
the facts and circumstances of the crime, including investigating
eyewitness accounts, as such investigation will inevitably affect
the course of action followed in advising and defending the accused.
In the instant case the record shows there was little,
if any, attempt by appointed counsel to substantiate petitioner's
version of what transpired on the day during which the theft
occurred. Nor was there an investigation of the police report
as related by the State's principal witness to ascertain its
accuracy. Although a possibility exists that such an investiga-
tion could only be inimical to petitioner's position, it is in-
cumbent on counsel to make a thorough investigation of the persons
and events involved in the crime.
As the Third Circuit said in Moore v. united States,
" * * * Adequate preparation for trial often may be
a more important element in the effective assistance
of counsel to which a defendant is entitled than the
forensic skill exhibited in the courtroom. The care-
ful investigation of a case and the thoughtful
analysis of the information it yields may disclose
evidence of which even the defendant is unaware
and may suggest issues and tactics at trial which
would otherwise not emerge. * * *"
Due to the lack of a thorough investigation of the facts
and circumstances surrounding the taking of the tires, we can-
not determine whether any pretrial motions were potentially
available to petitioner. No attempt was made to subpoena wit-
nesses to verify petitioner's story to assist in the establishment
of some defense, such as alibi, or to prove petitioner did not do
the act with which he was charged.
The United States Supreme Court stated at p. 165 in
Powell :
"It is not enough to assume that counsel thus
precipitated into the case thought there was no
defense and exercised their best judgment in
proceeding to trial without preparation. Neither
they nor the court could say what a prompt and
thorough-going investigation might disclose as to
the facts. * * * I 1
The United States District Court for the district of
Montana has held the failure to make a pretrial motion to suppress
as required under Montana law, and the refusal to subpoena alibi
witnesses without attempting to investigate what they might know
about the case, or their reliability, requirga finding that a de-
fendant was without effective assistance of counsel. Application
of Tomich, 221 F.Supp. 500, affirmed 332 F.2d 987. The United
States District Court for the Northern District of Texas stated
in Smotherman v. Beto, 276 F.Supp. 579, 588:
" * * * The lawyer who does not probe, does not
inquire, and does not seek out all the facts
relevant to his client's cause is prepared to
do little more than stand still at the time of
trial. "
The failure to object to improper evidence, standing
alone, is not sufficient grounds to support a claim of inadequate
representation, Hester v. United States, 303 F.2d 47 (10th Cir.),
cert. denied 371 U.S. 847, 83 S.Ct. 80, 9 L ed 2d 82, but failure
does provide support to substantiate such a claim. The Fifth
Circuit Court of Appeals in Williams at p. 706 observed:
"Court appointed counsel is no different to any
other lawyer. He is still a lawyer, he is still
practicing law, and he is no less confronted by
difficult decisions of tactics and strategy. He
cannot stand still and do nothing. That indeed
might be the best evidence of incompetency or
infidelity, or ineffectiveness, or all three. * * *"
Only two objections were made by the defense during the
course of the jury trial. One, which was sustained, was made
by petitioner himself to the questions of the county attorney
based on petitioner's past criminal record. The only objection
made by petitioner's appointed counsel was during the State's
presentation of its rebuttal case, this objection was sustained.
Although this Court disallowed in Noller hindsight as
a mechanism of assessing counsel's professional judgment and
tactics employed at trial, the record reveals a pattern of
presentation of evidence which is not consistent with the theory
of the laws of evidence. The jury is composed of laymen, not
versed in the sophistication of the laws of evidence, thus pro-
cedures have been developed for jury trials to place the burden
on counsel to timely object to offered evidence before it is
given to the jury. The presiding judge has the opportunity to
decide whether or not the trier of fact should be allowed to
hear the evidence. In this way much irrelevant, immaterial, and
prejudicial testimony is kept from the province of the jury.
When the course is not observed by counsel there is a great risk
the defendant will not be found guilty of the crime for which
he is charged, but guilt will be found due to some prior criminal
record or some circumstances not relevant to the crime at hand.
One of the bases for the necessity of representation by counsel
is to insure a fair trial. Counsel's effectiveness is based on
his knowledge and use of the laws of evidence. If the knowledge
is not used, the defendant is in little better position than if
he were to defend himself.
More important than petitioner's guilt or innocence in
this case is the burden of whether or not the conviction received
was obtained fairly and in accordance with federal and state
constitutional principles.
The right to a fair trial encompasses the right to counsel,
but the right to counsel would be illusory if it did not entail
the right to the effective assistance of counsel. The federal
court in Smotherman at p. 586 said:
"Adequate representation in a criminal proceed-
ing is the cumulative act of affording the de-
fendant an adequate defense. Defense attorneys
are called upon to apply their knowledge, exper-
ience and talents to a given set of facts and to
derive from such fusion a defense which the Sixth
Amendment requires to be adequate, not miraculous.
When the adequacy of a defense rendered by an
attorney is subjected to attack, the relevant
consideration is not whether the case was lost
where it could have been won, but whether counsel
'stood still and did nothing', [citation omitted]
to the extent that his representation failed to
render reasonably effective assistance to the
accused. [citations omitted] When appearance of
counsel takes on the cloak of pro forma rather
than that of zeal and action, the defendant has
not had his day in court."
The record before us in this case indicates that the
conduct of this trial by court appointed counsel deprived peti-
tioner of effective representation. Therefore, we grant petition-
er's petition for post-conviction relief, ordering the district
court to set aside the convic
/' Chief Justice
/-
We concur: /
----me---------------------------
Justices
Mr. Justice Wesley Castles and Mr. Justice John Conway Harrison
dissenting:
We dissent.
Although we do not disagree with any of the law stated
in the majority opinion, we disagree on the facts of the
representation.
The defendant, here, is a "stir-wise" individual with
ten pages of "rap sheet" showing numerous arrests and convic-
tions in many states of the nation. By his own claim he has
attended law schools and studied law and is a self-styled cell
block lawyer. His guilt in the instant case is clear beyond
any possible doubt. The background of this case indicates to
us that he had planned an appeal based upon "incompetence" of
counsel even before his trial. The affidavit of defense counsel
shows that the defendant never told a consistent story to his
own counsel, gave him no facts, ignored counsel's advice, gave
him handwritten directions on how to handle the trial, and
presented an impossible defense situation. Counsel should be
commended for trying to defend him as well as he could. The
handwritten directions mentioned are a classic "Dick Tracy"
comic strip diatribe.
Faced with an impossible defense posture, counsel
should not be criticized nor should the defendant have a new
trial.