Fitzpatrick v. State

I N THE SUPRMEE COURT O THE STATE O MONTANA F F 1983 BERNARD JAMES FITZPATRICK, P e t i t i o n e r and A p p e l l a n t , STATE O MONTANA, F Respondent a n d Respondent. APPEAL FROM: D i s t r i c t C o u r t of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e County o f B i g EIorn, The H o n o r a b l e C h a r l e s Luedke, J u d g e p r e s i d i n g . COUNSEL O RECORD: F For Appellant: S t e p h e n s & C o l e ; R o b e r t L. S t e p h e n s , J r . a r g u e d , B i l l i n g s , Montana Timothy K . F o r d , S e a t t l e , Washington F o r Respondent: Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana John Maynard, A s s t . A t t y . G e n e r a l , a r g u e d , H e l e n a James S e y k o r a , County A t t o r n e y , a r g u e d , H a r d i n , Montana Submitted: June 2 , 1983 Decided: October 6, 1983 Filed: fJ(3T 6 - 1983 - Clerk Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Petitioner, Bernard J. Fitzpatrick, appeals an order of the District Court of the Thirteenth Judicial District of the State of Montana dismissing petitioner's amended peti- tion for post-conviction relief. In October 1975, petitioner Bernard J. Fitzpatrick and four others, Gary Radi, Travis Holliday, Paul Bad Horse and Edwin Bushman were tried by a jury on the charges of deli- berate homicide, aggravated kidnapping, and robbery of Monte Dyckman, a Hardin Safeway supermarket clerk. Petitioner was found guilty on all counts and was sentenced to death. On appeal, this Court reversed the convictions of all the defendants and on October 19, 1977, remanded the cases for separate retrials. State v. Fitzpatrick (1977), 174 Mont. 174, 569 P.2d 383. The question of effective assistance of counsel was an issue on this first appeal. Fitzpatrick, 569 P.2d at 389. On November 29, 1977, attorney John L. Adams, Jr., was appointed by the District Court to represent petitioner at his retrial. In December 1977, both the State and peti- tioner filed motions asking the District Court to appoint counsel. other than Adams, who had represented codefendant Paul Bad Horse in the first trial, or to have a hearing to see if Fitzpatrick was satisfied with Adams as counsel. Petitioner's motions were filed pro se. A hearing was held on January 16, 1978, at which time Fitzpatrick withdrew his request, stating that he wished to keep Adams as his counsel. At his second trial in 1978, Fitzpatrick was again convicted of deliberate homicide, aggravated kidnapping, and robbery. He was agaln sentenced to death. During that second trial, his sentencing hearing and the subsequent appeal, he was represented by John L. Adams, Jr. This Court, after hearing oral argument on two separate occa- sions, affirmed his conviction. The United States Supreme Court twice denied certiorari. Fitzpatrick v. Montana (1980), 449 U.S. 891, and Fitzpatrick v. Sentence Review Division (1980), 449 U.S. 891. Fitzpatrick then filed a petition for post-conviction relief in Big Horn County. The District Court dismissed all claims in that petition but reserved ruling on his claim No. 8(c), which charged ineffective assistance of counsel. The District Court denied petitioner's motion for reconsidera- tion or amendment. Fitzpatrick then appealed the denial of the petition for post-conviction relief. This Court affirmed dismissal of the other claims and remanded the cause to the District Court for an evidentiary hearing solely on the issue of ineffective assistance of counsel. Fitzpatrick v. State (1981), Mont. , 638 P.2d 1002, 38 St.Rep. 1448. A five-day hearing was held in April 1982. On September 1, 1982, the District Court issued an order and memorandum dismissing that claim. Fitzpatrick now appeals. Post-Conviction Relief: Because the post-conviction procedure is a civil remedy, the failure to present claims in earlier proceedings wlll not bar them from presentation at this time. Neverthe- less, the fact that an issue is not raised at a pretrial hearing, during trial or on direct appeal will be considered by this Court as an element bearing on the merits of that particular claim. The language of the statute providing for post- c o n v i c t i o n r e l i e f i s c l e a r . S e c t i o n 46-21-101, MCA. Circum- s t a n c e s i n which v a l i d i t y of a s e n t e n c e may be c h a l l e n g e d , presents a two-part t e s t which a p e t i t i o n e r m u s t meet in o r d e r t o q u a l i f y f o r such r e l i e f . The s t a t u t e reads: " A person adjudged g u i l t y of an o f f e n s e i n a c o u r t of record who has no adequate remedy of appeal - who c l a i m s t h a t and s e n t e n c e was imposed i n v i o l a t i o n of t h e c o n s t i t u t i o n or t h e laws of t h i s s t a t e or t h e c o n s t i t u t i o n of t h e United S t a t e s , t h a t t h e c o u r t was without j u r i s d i c t i o n t o impose t h e s e n t e n c e , o r t h a t t h e s e n t e n c e was i n excess of t h e maximum a u t h o r i z e d by law or i s o t h e r w i s e s u b j e c t t o c o l l a t e r a l a t t a c k upon any ground of a l l e g e d e r r o r a v a i l a b l e under a w r i t of habeas c o r p u s , w r i t of coram n o b i s , or o t h e r common law or s t a t u t o r y remedy may p e t i t i o n t h e c o u r t which imposed t h e s e n t e n c e or t h e supreme c o u r t t o v a c a t e , s e t a s i d e , or c o r r e c t t h e s e n t e n c e . " (Emphasis added.) The f i r s t element of t h e t e s t which a p e t i t i o n e r m u s t s a t i s f y i s t h a t p e t i t i o n e r be "adjudged g u i l t y of an o f f e n s e i n a c o u r t of record who h a s no adequate remedy of appeal . . . I' T h i s p h r a s e does n o t mean t h a t a p e t i t i o n e r may a v a i l h i m or h e r s e l f of t h e a p p e l l a t e review p r o c e s s , and, when t h e r e s u l t s a r e unfavorable, u t i l i z e t h e post-convic- tion review procedure to, in effect, file numerous and successive "appeals." The language of t h e s t a t u t e f o r p a r t one of t h e t e s t c l e a r l y i n t e n d s t h i s form of relief t o be available to convicted persons who have not had their s e n t e n c e s reviewed by t h e a p p e l l a t e c o u r t . I t is c l e a r l y an abuse of t h e r e l i e f procedure t o withhold i s s u e s which could and should have properly been raised on appeal, or to manufacture i s s u e s y e a r s l a t e r , i n an a t t e m p t t o manipulate and o b s t r u c t t h e c r i m i n a l j u s t i c e p r o c e s s . Such abuse of t h e s t a t u t e i s p a r t i c u l a r l y a p p a r e n t i n this case where the petitioner has had such extensive experience in the criminal justice system. Clearly, the statute was intended to prevent the miscarriage of justice, not to provide an opportunity to manipulate and obstruct justice. As the United States Supreme Court so succinctly stated in a recent opinion, "when the process of direct review . . . comes to an end, a presumption of finality and legality attaches to the conviction and sentence." Barefoot v. Estelle (1983), U.S. -1 - S.Ct. -1 - L.Ed.2d , 51 L.W. 5189 (No. 82-6080, decided July 6, 1983). The Court further quoted from Lambert v. W d (1895), 159 U.S. 660, as follows: "It is natural that counsel for the condemned in a capital case should lay hold of every ground which, in their judgment, might tend to the advantage of their client, but the administration of justice ought not to be interfered with on mere pretexts." We agree. And we cannot further allow the abuse of the post-conviction relief statute to obstruct the course of justice. aCEfZQr The sole issue in this ! $ e z z is whether petitioner was denied effective assistance of counsel during his retrial on the charges of deliberate homicide, aggravated kidnapping and robbery. Petitioner's amended petition alleges ineffective assistance of counsel in numerous particulars. We will discuss these allegations item by item. Petitioner alleged that Adams did not consult with petitioner regarding his case until January 7, 1978, and did not have time to adequately prepare the case. In December, 1977, petitioner asked that other counsel be appointed to represent him because he felt that John L. CORRECTION. In preparing this opinion for pub- Hon. F r a n k I . H a s w e l l lication, we noted in our verification of titles and C h i e f J u s t i c e , Supreme C o u r t citations the matters listed below. Corrections have Room 414 J u s t i c e B u i l d i n g been made on our copy of the opinion. 215 N o r t h S a n d e r s H e l e n a , Montana 59620 Date: November 7 , 1 9 8 3 Re: F i t z p a t r i c k v. S t a t e , N o . 82-476, Oct. 6, 1983 Page 5 , l i n e 11 -- L a m b e r t v . J a c k s o n s h o u l d read L a m b e r t v. B a r r e t t . WEST PUBLISHING COMPANY Box 3526 St P ; l r r l MM RR1F;R Adams, J r . , d i d n o t h a v e s u f f i c i e n t t i m e t o r e p r e s e n t him i n his retrial. In response, the prosecution a l s o requested t h a t a h e a r i n g b e h e l d and t h a t i t b e d e t e r m i n e d t h a t p e t i - tioner be s a t i s f i e d w i t h h i s c o u n s e l , not only a s t o the t i m e such counsel could devote t o t h e m a t t e r , but also i n v i e w of t h e f a c t t h a t s u c h c o u n s e l had r e p r e s e n t e d a n o t h e r defendant i n t h e f i r s t t r i a l . A h e a r i n g was h e l d w i t h t h e f o l l o w i n g r e s u l t : "THE COURT: C o u r t w i l l be i n s e s s i o n . W have Big e Horn C o u n t y C r i m i n a l C a u s e No. 1107-C, e n t i t l e d S t a t e o f Montana v e r s u s Bernard James F i t z p a t r i c k . Mr. F i t z p a t r i c k , you h a v e f i l e d w i t h t h i s Court a request t h a t t h e Court consider r e p l a c i n g Mr. J o h n Adams a s y o u r a t t o r n e y on t h e g r o u n d t h a t h e , b e i n g a p u b l i c d e f e n d e r , h a s s o much t o d o t h a t h e i s n o t a b l e t o a d e q u a t e l y t a k e c a r e of your case. You h a v e l i k e w i s e f i l e d a s i m i l a r r e q u e s t w i t h t h e Montana Supreme C o u r t and t h e y have responded t o you, and t o m e a s w e l l , and t h e n , s i m i l a r l y , t h e County A t t o r n e y o f B i g Horn C o u n t y h a s l i k e w i s e f i l e d a m o t i o n r e q u e s t i n g t h a t you b e given the opportunity t o express yourself on t h i s v e r y p o i n t . And s o t h a t i s why we a r e c o n v e n e d h e r e t h i s a f t e r n o o n , Mr. Fitzpatrick. Do you h a v e a n y s t a t e m e n t t h a t y o u ' d l i k e t o make t o t h e C o u r t a t t h i s time? "THE DEFENDANT: Yes I d o . I filed a motion w i t h t h i s Court and w i t h t h e Supreme C o u r t t h a t Mr. J o h n Adams was a p u b l i c d e f e n d e r and d i d h a v e a h e a v y c a s e l o a d and t h a t , b u t s i n c e t h a t f i l i n g I h a v e had a t a l k w i t h Mr. Adams and Mr. Adams i s w o r k i n g on my c a s e , and w o r k i n g h a r d , and I am s a t i s f i e d w i t h t h e work and I d o f e e l t h a t -- H e a s s u r e s m e t h a t h i s c a s e l o a d i s n ' t t o o heavy t o handle t h i s c a s e , and I ' m i n c l i n e d t o b e l i e v e t h a t it i s n ' t , and I would l i k e t o w i t h d r a w w h a t e v e r i t i s on t h a t , k e e p Mr. Adams . "THE COURT: A l l r i g h t , I want t o e x p l a i n t o y o u , t h e r e a s o n I a p p o i n t e d Mr. Adams is b e c a u s e No. 1, h e h a s b e e n i n t h i s C o u r t a good many y e a r s and I know h e i s c o m p l e t e l y c o m p e t e n t ; No. 2 , h e h a s a l r e a d y been t h r o u g h t h i s c a s e once and so he's familiar with all the details so he can be of more help to you quicker and easier than anybody else I could find." Following retrial and sentencing, petitioner wrote to Adams expressing his displeasure with Adams' representation of him. Be later wrote Adams advising that a lot of what he had said was not true and that "you are a very competent lawyer and you were more than competent at my trial." At the evidentiary hearing, petitioner advised that the reason he recanted was only to keep his counsel on the case during its appeal to the Montana Supreme Court. Follow- ing the decision of the Montana Supreme Court which was unfavorable to the petitioner, he again returned to his accusations of incompetency. To put these accusations in the proper perspective, it is crucial to understand that petitioner is comparing the final result of his retrial to that of the result of the second trial of defendant Radi which preceded petitioner's trial by several weeks. Defendant Radi was acquitted on all counts. The thrust of petitioner's argument is two-fold: first, that evidentiary material which was presented on behalf of Radi was not used in petitioner's retrial; second, that defense counsel did not call certain specified wit- nesses additional to those used by Radi, which petitioner listed for his counsel as being able to support his alibi defense. As to the Radi trial evidence, it is apparent that petitioner believes it should have been identically pre- rsented in his retrial, without regard to other considera- tions. Since petitioner contends he was with Radi, and since Radi was acquitted, petitioner believes he should have been acquitted also. Petitioner also obviously believes, regardless of other factors, that the use of additional wit- nesses which were not called at his retrial would have resulted in his acquittal. Since Radi was acquitted and shortly thereafter petitioner was convicted, petitioner concludes that the cause of his conviction was an inadequacy on the part of his defense counsel. Petitioner conveniently overlooks the fact that the key witnesses in the prosecution's case at the Radi trial failed to appear and testify in person and consequently, the prosecution was forced to rely upon evidence offered by casual observers who had knowledge of various aspects of the events. The key witnesses were available for Fitzpatrick's retrial and this circumstance alone is more than adequate to explain the differing results of the two trials. The allegations with regard to petitioner's contention that additional witnesses should have been called will be discussed witness by witness. Dennis Sasich: Petitioner's amended petition states that Sasich "could have testified that he saw Radi at the Squire Lounge in Billings on the evening of April 4th or 5th, 1975, and that he saw petitioner in that same place with Radi around the same time." At Radi's trial, this witness could not conclusively state that Radi was in the Squire Lounge on April 5th. At the evidentiary hearing held on Fitzpatrick's amended petition, Sasich appeared and testified in effect that he had never seen petitioner before. The witnesses used by counsel on behalf of petitioner at retrial were two cocktail waitresses from the Squire Lounge, Shirley Graham and Gloria LeVe. Graham testified that petitioner's female companion, Christine Fetters, was seen by her in the Squire Lounge on the night of April 5 and that petitioner could have been with her although Graham did not specifically recall seeing him. LeVe's testimony placed both Fetters and petitioner together in the Squire Lounge at that time. Obviously, the witnesses selected by counsel to testify on behalf of petitioner were much stronger than a witness who did not even know petitioner. Barbara Hansen (Radi): Petitioner's amended petition states that this witness and Radi were "with Fitzpatrick at several points during that afternoon and evening in bars in Billings . . ." Her testimony at the Radi trial as to the events of April 5 was not confirmed by another member of the party, Shelley Beaumont, who was also called as a witness. At the evidentiary hearing, Ms. Radi augmented her testimony and further modified it on cross-examination. She further stated that while she is friendly to petitioner now, in 1978 he was a stranger to her and she did not want to be a witness for him or be involved in his trial in any way. By the time of petitioner's trial she had left Montana, and the investigator assisting Fitzpatrick's counsel determined that she was somewhere in Idaho but was unable to contact her. She had a pattern of using different names at different times and the search was discontinued. It appears from the testimony of this witness in the Radi trial that on the night in question she had used mari- juana, LSD and alcohol and was, in her own words, "a mess." At the time of the homicide she was a prostitute working in Nevada but home on vacation living with Radi in a "hustler" relationship. Defense counsel had listened to some of her testimony in the Radi trial and had observed her demeanor on the stand. Be judged her effect upon the jury as belng detri- mental and was not impressed with her credibility. Given the totaiity of the atmosphere which accompanied the appearance of this witness, it cannot be said that it was an exercise in incompetency to have doubts about her predictability and veracity, particularly if she were to be an unwilling wltness. Herscnel Wilson: Petitioner alleged in his amended petition that this witness could have testified that the petitioner was in billings on the evening of April 5. This witness did not testify at the Radi trial and was Intoxicated at the evidentlary hearing. He could only testify that he saw petitioner in the Standard Bar with a girl from Butte shortly after petitioner was released from prison. This witness could not and did not testify that petitioner was in Billings at the time the crime occurred in Hardin. It clearly cannot have been a lack of competency to have failed to call this witness. Cheryl Wilson (originally alleged as "Jackie Wilson"): In n l s amended petition Fitzpatrick states that this witness could have testified that petitioner was in the Standard Bar on April 5, 1975. This witness did not testify at the Radi trial but did appear at the evidentiary hearing. Her testimony was that she had never seen petitioner prior to the evidentiary hearlng. She t e s t i f i e d t h a t s h e and H e r s c h e l Wilson had been involved i n a five-day drinking p a r t y a t about t h e t i m e of t h e homicide i n 1975. Edna T o r s k e : In his amended petition, Fitzpatr i c k a l l e g e d t h a t T o r s k e c o u l d p l a c e him i n t h e S t a n d a r d Bar o n t h e n i g h t of A p r i l 5 b e c a u s e of a f i g h t which had o c c u r r e d and w h i c h s h e had d i s c u s s e d w i t h him. Torske did not testify at the Radi trial but did appear a t t h e e v i d e n t i a r y hearing. She t e s t i f i e d t h a t s h e d i d see p e t i t i o n e r a t t h e S t a n d a r d Bar two o r t h r e e t i m e s a f t e r h e g o t o u t o f p r i s o n b u t d i d n o t know w h e t h e r i t was d u r l n g t h e day o r n i g h t , on a week d a y o r weekend, but a t a n y r a t e c o u l d n o t h a v e b e e n l a t e r t h a n 9:00 p.m. because t h a t i s when s h e g o t o f f work. She had been contacted even before the 1975 joint t r i a l a n d , a t f i r s t , was e n c o u r a g i n g t o t h e d e f e n s e i n w h a t s h e would s a y . Shortly thereafter, however, she concluded t h a t s h e had b e e n m i s t a k e n i n h e r memory and s t a t e d t h a t s h e w a n t e d t o b e l e f t a l o n e . S h e was u n c o o p e r a t i v e w i t h e v e r y o n e and, at the time of the 1978 t r i a l , refused to testify voluntarily when contacted by d e f e n s e c o u n s e l . She t o l d c o u n s e l t h a t she c o u l d n o t remember a n d a l s o s t a t e d t h a t t h e f l g h t s h e d o e s remember d i d n o t occur on t h e day of the murder. She f e l t that petitioner was trying t o use her ~ m p r o p e r l y . D e f e n s e c o u n s e l d e c i d e d t h a t s h e would b e u n a b l e t o s u p p o r t t h e a l i b i d e f e n s e and c o n s e q u e n t l y d i d n o t c a l l her. I t is n o t a n a c t o f incompetency t o r e f u s e t o c a l l an unfavorable witness. I n a d d i t i o n , it developed a t t h e e v i - dentiary hearlng that, by p e t i t i o n e r ' s own a d m i s s i o n , the f i g h t i n q u e s t i o n was on A p r i l 4 , n o t A p r i l 5 , and t h i s was confirmed by a complaint and report from Billings Police Department records. Clearly, Torske was justified in refusing to verify petitioner's allegations and Adams was justified in declining to call this witness. Don Collett and Laurel Collett: Petitioner alleges in his amended petition that these two parties could place him in Billings on April 5, 1975. Neither of these witnesses testified at the Radi trial. Don Collett did appear at the evidentiary hearing but was intoxicated and left the courtroom before he could be called as a witness. He could not be found after he left so his testimony was not taken. However, the paralegal that spoke to him in preparation for the hearing advised that Mr. Collett's recollection was even worse than that of Herschel Wilson. Laurel Collett's testimony was taken by deposition while she was hospitalized. She testified that she saw petitioner with Radi in the Standard Bar at some time between 6:00 p.m. and 2:00 a.m. for a brief period of time on the night of the murder. Harriet Torgerson: The amended petition states that this witness could testify that petitioner checked into the Ponderosa Inn Motel before 2:00 or 3:00 a.m. on April 5, 19'75. This witness did not appear at the Radi trial. At the evidentiary hearing, she testified that she checked peti- tioner in "towards morning." She could not be more specific regarding the exact time, except that she was certain it would have been later than 3:00 a.m. and could have been as late as 5:00 or 6:00 a.m. with the room receipt still dated April 5, 1975. It was her practice that the date change was not made until after she had checked the books for the pre- vious day. This witness's testimony supports the prosecu- tion's case rather than contradicts it as alleged in peti- tioner's amended petition. It can hardly be ineffective assistance for counsel to decline to call a witness which he knew would support the prosecution. Christine Fetters: Petitioner contends that this witness's testimony was impeachable in a number of ways. Petitioner alleged that Fetters' children had been taken from her and she was being threatened with being deprived of their custody by the State. For this reason, she testified, according to petitioner, for the State. Fetters denied this at the evidentiary hearing, and petitioner did not offer any evidence in support of this allegation. Fetters' evidence regarding burial of the gun was also impeachable according to petitioner. However, at the evi- dentiary hearing, her testimony was confirmed. Her trial testimony regarding the financial position of petitioner and herself also was not impeached at the hearing. Petitioner alleged that a witness named Robert Miller could testify that he loaned petitioner a sum of money. Robert Miller could not be located either for the trial or the hearing, and it was noted that "Robert Miller" was a pseudonym sometimes used by petitioner. Witnesses were presented on Fitzpatrick's behalf at the trial to testify to his financial condition. Petitioner himself testified that he made money through the sale of drugs shortly after his release from prison. At the hearing, Fetters did amend her testimony somewhat as to the date she heard the radio announcements of the Dyckman murder. Petitioner characterized Fetters as a "surprise" witness. In actuality, she had been listed by petitioner before the trial as one of his alibi defense witnesses. As trial approached, however, both defense counsel and the investigator ascertained that she would be an undesirable witness and that her testimony would not be favorable to petitioner. At the 1978 trial when the State sought to call Fetters as a prosecution witness, defense counsel objected on the basis that she was a defense witness and could have been in a common-law marriage relationship with petitioner. In summary, the evidence does not support petitioner's allegations that the testimony of Fetters was readily impeachable. Iva Lee Finch and Cindy Lee Morgan: Petitioner alleges that defense counsel failed to adequately bring out the effect of LSD upon these witnesses. However, the trial transcript demonstrates that this area was adequately covered. Robyn Vandersloot Spaulding: Petitioner alleges that this wltness could have testified as to the hair colors and styles of the two individuals she observed with Dyckman. At the evidentiary hearing, she testified that she could describe neither the styles nor the colors but that neither of the individuals with Dyckman were Fred or Raleigh Kraft, two men at whom petitioner was attempting to cast suspicion. Kenny Elms and Jim Doane: Petitioner alleges that these witnesses could have testified regarding the car seen following the Dyckman vehicle. This evidence was covered by three other witnesses and would only have been repetitive. Further, the automobile identification testimony was empha- sized in cross-examination of Sheriff Brown and Lyle Doane and in the Ronald Potts testimony. Art Mulkey: The prosecution contended that the car seen following the Dyckman vehicle was Radi's. Radi's car was a 1971 Pontiac with single headlights, a vertical configuration in the grill area and oblong taillights. The total effect of the testimony elicited by Fitzpatrick's counsel at trial, through the witnesses Effie and Everett Knows the Ground and Monte Doane, was that in the car they saw following the victim's car the headlights were dual (Doane) and the taillights were round (Everett). Conse- quently, the testimony developed at the trial regarding the car following the Dyckman vehicle was to Fitzpatrick's benefit. Mulkey's testimony, if he had agreed to return from Georgia and testify as to the differences in appearance between Radi's car and the car described by Doane and Everett and Effie Knows the Ground, would simply have reiterated other testimony. Edwin Bushman: Petitioner alleges that the testimony of this key prosecution witness could have been impeached regarding where the victim was depositing the Safeway receipts. This allegedly could have been accomplished by calling Everett Stoltz. In fact, Stoltz did testify and that point was covered both on direct and cross-examination. Petitioner also contends that suspicion could have been directed at Bushman if Larry Cole, the defense investi- gator, had been called to testify regarding the time it took to drive from the Post Office to Toluca and back to the Post Office. This point was brought directly to the attention of the jury in defense counsel's presentation of Sheriff Brown's testimony. Raleigh Kraf t: Petitioner alleges that this witness's testimony could have been impeached as to when he learned of the murder. It is clear that petitioner misread the Fred Kraft statement by interpreting it to mean that Fred Kraft had not heard of the crime prior to the discussion with Bushman. Ronald Potts: Petitioner alleges that defense counsel failed to bring out prior inconsistent statements of this witness with regard to the car he saw parked in front of Safeway. Defense counsel questioned this witness on both direct and cross-examination, and the questioning covered this point, among others. Irene Girard and Barbara Howell: Petitioner alleges that these two witnesses should have been called to verify that they had sent him money. The depositions of these witnesses were taken for presentation at the evidentiary hearing, and they testified that Girard had sent $50 and Howell $20 in May or June, 1975. Petitioner alleges that certain records could have been presented regarding the issues. The minimum amounts sent by Girard and Howell are not significant in terms of the total financial picture. Also, these items were not at issue as Christine Fetters had already testified as to their receipt. With regard to the Snelling & Snelling employment records, the record demonstrates that there was never any issue that petitioner applied for work through this agency. Ken Greene: Petitioner alleges that Greene, an attorney working with the Defender Project at the Montana State Prison, could have testified that he had advised Fitzpatrick shortly before Fitzpatrick's release from prison that if Fitzpatrick did not leave the state he would be constantly picked up as a suspect and charged with crimes committed where Fitzpatrick resided. Petitioner contends that this testimony could have countered any prosecution claim that petitioner's departure circumstantially indicated guilt. Defense counsel considered this testimony irrelevant as the record shows that petitioner stayed i.n Butte and also repeatedly made trips to Billings after the murder. If defense counsel had presented this testimony, it would have been apparent that petitioner had not left the state for any significant period of time after release from prison. Larry Cole: Petitioner alleges that defense counsel erred in not calling this witness, the defense investigator, regarding the chain of custody of the Radi vehicle. Cole and defense counsel discussed the possibility of Cole testi- fying and decided against it. Petitioner's defense was alibi, so there was a question of relevancy with respect to matters concerning the Radi vehicle. If petitioner were not in Hardin the night of the crime, which was petitioner's defense, the contents of the Radi vehicle weeks later would be immaterial to him. Robert McRae: Petitioner maintains that this witness should have been called to testify regarding a shell casing found in the Radi vehicle. Cole contacted McRae and dis- cussed his testimony. It was decided not to have McKae testify as his testimony would not be germane to the alibi defense. Forensic Evidence from the Murder Scene: Petitioner alleges that negative results of tests should have been presented. The transcript shows that such evidence was covered in the cross-examinations of Sheriff Brown and Carl Zarndt, an FBI agent. Further Evidence: Petitioner alleges in his amended petition that there was further evidence, presumably favor- able to petitioner, which defense counsel failed to present. No such further evidence was presented to the court at the evidentiary hearing. Insufficient Defense Legal Research: These general- ized allegations have, for the most part, already been discussed and ruled upon in the District Court's prior order dismissing Fitzpatrick's petition, which order has been affirmed by the Montana Supreme Court. Insufficient Trial Preparation: This contention was discussed in the findings of fact and conclusions of law previously issued on January 7, 1981, in which, at page 20, the District Court stated: "At the outset, petitioner attempts to show that there was insufficient defense preparation at, and prior to trial. Omit- ted from the 'facts1 is recognition that defense counsel had served as counsel for a codefendant in the first trial of this cause and already had detailed familiar- ity with the case, so that there is no significance to be presumed from the facts alone surrounding the date of his appointment to serve this petitioner, or the date upon which inception of consul- tation with the petitioner commenced. The facts which petitioner relies upon to support his claim of insufficient defense preparation are merely conclusory allega- tions and, as such, are insufficient." The o n l y i t e m o f evidence offered i n t h i s connection at the evidentiary hearing was Exhibit AF, purporting to show t h a t d e f e n s e c o u n s e l , d u r i n g December 1977 a n d J a n u a r y and F e b r u a r y 1 9 7 8 , was b u r d e n e d w i t h a t o t a l o f f o r t y - s e v e n pending c r i m i n a l c a s e s . The p o i n t is t h a t , being s o bur- dened, h e was u n a b l e t o p r o p e r l y p r e p a r e for petitioner's trial. E x h i b i t AF i s a c l a s s i c e x a m p l e o f how a case l o a d listing, by itself, c a n be d e c e p t i v e and m i s l e a d i n g . As examples, Case No. 1 0 2 5 9 was a c t u a l l y c l o s e d a s t o Adams i n May 1 9 7 7 a n d was s t i l l a l i v e i n December 1 9 7 7 o n l y b e c a u s e of the existence of a codefendant represented by other counsel. The same i s t r u e o f Case 1 0 3 3 2 . C a s e 1 0 4 4 9 was closed on December 1, 1977. Case 10461 was dismissed December 5, 1977. Case 1 0 4 9 1 was c o m p l e t e d December 5, 1 9 7 7 , a n d 1 4 0 8 9 was c o m p l e t e d o n December 1 9 , 1 9 7 7 . Adams w i t h d r e w f r o m 1 0 4 6 0 o n J a n u a r y 11, 1 9 7 8 , a n d a g u i l t y p l e a i n 1 0 4 7 8 o c c u r r e d o n t h a t same d a t e . Case 1 0 5 0 0 w a s d i s - m i s s e d December 5 , 1 9 7 7 , a n d 1 0 5 2 1 was c l o s e d o n December 1, 1977. C a s e s 1 0 5 7 7 a n d DC-78-002 were b o t h c l o s e d on J a n u a r y 9, 1978. None o f t h e s e cases i n v o l v e d t r i a l t i m e o r t r i a l preparation and t h e Freeman m u r d e r case, which petitioner mentioned i n h i s testimony, d i d n o t go t o t r i a l u n t i l A p r i l 1978. C a s e 1 0 5 6 8 , shown as a n a c t i v e c a s e i n December 1 9 7 7 and J a n u a r y 1978, i s o n e i n w h i c h Adams was n o t a p p o i n t e d c o u n s e l u n t i l March 2 2 , 1978, which w a s a f t e r p e t i t i o n e r ' s trial. An e x a m i n a t i o n o f t h e r e c o r d s w i l l f u r t h e r show t h a t under the pace of court calendaring, the cases filed subsequent t o No. 1 0 5 5 7 i n w h i c h a c o n t e s t d e v e l o p e d would not mature until in April or May 1978, or later. Those which would close earlier would be by way of guilty pleas. It should also be recalled at this point that defense counsel's case load was a primary issue at the hearing which petitioner requested prior to his second trial. At this hearing on the petition which requested appointment of other counsel, petitioner withdrew his objection to his court- appointed counsel and stated that he thought Adams could handle his case effectively. It follows that Exhibit AF falls short in its proba- tive effect on the point urged by petitioner. Sentencinq: Petitioner alleges in his amended petition that defense counsel presented no evidence in mitigation, although such mitigating evidence was allegedly available through his mother, his doctor and hospital records. At the evidentiary hearing, there was no evidence presented as to any doctor or hospital records relating to treatment of petitioner for dizzy spells and headaches. Petitioner's mother, Irene Girard, whose testimony was taken by deposition, did advise of dizzy spells suffered by petitioner as a child, resulting in his ears being lanced. However, because of a family break-up, her contact with petitioner was very spotty over the years. She left when he was seven years old and she saw him for a period when he was fifteen, again when he was seventeen, and finally on a brief vlsit when he was twenty-two or twenty-three years old. She had not seen him since, although petitioner did advise his mother in a telephone conversation at a time when he was confined in the Montana State Prison that he was still having dizzy spells, but the records of the prison made no mention of that fact or of any history of headaches. At the evidentiary hearing, Chris Fetters recalled that petitioner had told her that he had lied and attempted to use headaches and dizzy spells in the past to excuse his conduct. It is not made clear by petitioner what the rele- vancy might be with respect to dizzy spells and headaches in connection with the sentencing process. No specificity is provided as to how it could enter into sentencing as a miti- gating factor provided by the statutes. In connection with the deposition of Irene Girard, respondent's exhibit A was attached and discussed as a part thereof. It consists of a questionnaire submitted by the Montana State Prison Reception Unit to Mrs. Girard, seeking background information in connection with petitioner's reception at some time into the state prison. To it is attached a letter written by Mrs. Girard, which outlines the developmental history of petitioner. It mentions petitioner being expelled from school, his membership in a school gang, car thefts, juvenile commitments, attempted escape, A.W.O.L. from the Army on two occasions, acquittal upon a charge of killing a man with his bayonet, transporting a stolen car across state lines, and going through a period of being "knife crazy," among other significant points. As the record shows, defense counsel was we11 acquainted with Fitzpatrick's history and had known him since the early 1960's. Given Fitzpatrick's criminal history and considering counsel's duty to avoid misleading the court, any approach taken by Adams during the sentencing hearing, other than the approach he reasonably selected , would have had substantial and hazardous pitfalls. The remaining areas touched by petitioner's allega- tions on performance of defense counsel at sentencing appear to already have been considered and ruled upon both by the District Court and this Court in prior proceedings. Defense counsel did admit at the evidentiary hearing, in connection with the sentencing phase, that one mistake was made--namely, that he informed the court that the slay- ing of Alfred Falcon in the Montana State Prison was a matter of self-defense, when, in fact, petitioner denied having committed it at all. Petitioner had originally been convicted of such charge, which was affirmed on direct appeal but was later overturned in a post-conviction pro- ceeding, resulting in the charges being dismissed. Defense counsel's copy of petitioner's presentence investigation conducted in connection with sentencing at the first trial, and which was found in Chris J. Nelson's file (petitioner's former attorney), did contain notations indicating that petitioner had admitted the prison slaying. At the eviden- tiary hearing, Nelson indicated that part of his sentencing strategy was to point out that, although petitioner admitted previous crimes, he maintained his innocence in this case, thereby fortifying his attempt at credibility. This notation could have misled defense counsel at the time of sentencing on the retrial in 1978. At the evidentiary hearing , the witness Christine Fetters did testify that petitioner had made admissions to her saying that, with respect to the murder of Alfred Falcon, it was something that had to be done because he was a beast and was taking over the prison. In view of this, the slip of defense counsel in saying it was a matter of self-defense casts petitioner's relationship with the incident in more favorable light than what the prosecution could possibly have presented if it became a contested point. Defense Counsel John L. Adams, Jr.: Adams graduated from the University of Montana Law School in 1954. He became a Deputy County Attorney in Billings, Montana, in 1956, and County Attorney in 1965. He served as County Attorney until 1970. From 1970 to the present he has served continuously as court-appointed defense counsel in the District Court. His legal work has been almost exclusively in the field of criminal law and he has tried at least 200 felony cases, including several capital cases. During the first trial of the codefendants, Adams was appointed to represent Paul Bad Horse. He was assisted in his representation of Bad Horse by Jerome Cate, who was selected by the Indian tribe. After Adams was appointed counsel to Fitzpatrick for the second trial, he discussed Fitzpatrick's case with Chris EJelson, Fitzpatrick's attorney during the original trial. In addition, Nelson gave Adams most of his work product, including witnesses' statements. Nelson had withdrawn from representing Fitzpatrick during the second trial because he had recently joined a firm which included Mr. Sinclair, a co-prosecutor in the first trial. Adams furnished Fitzpatrick with much of the original file and later supplemented it. In addition, he and Fitz- patrick went over the notes and material Fitzpatrick provided. Adams was assisted in the defense by Larry Cole, the court-appointed special investigator, who was at that time an attorney licensed in Wyoming and awaiting licensing in Montana. After defendant Radi was acquitted on retrial, Adams discussed the case with Mr. Stephens, Radi's counsel, and was given some of Stephens' case material. Adams has known Fitzpatrick since the 1960's and made an appearance once as prosecutor in a previous charge against him. Adams has defended Fitzpatrick on other charges at least twice. In 1972, Adams represented Fitzpatrick on "burglary, drugs and other offenses." Prior to the 1978 trial, Adams also represented Fitzpatrick when he was charged with assault involving a weapon which resulted in Fitzpatrick's imprisonment. Prior to the second trial, Adams filed a number of motions on petitioner's behalf, including a motion to limit any testimony of Gary Radi, a notice to rely on the defense of alibi listing thirty-seven witnesses, a supplement to the alibi defense, discovery motions, a motion to dismiss, a motion for appointment of a special investigator, a motion for a change of venue, and a subsequent motion, submitted at petitioner's request, to withdraw the motion for change of venue. In addition, Adams requested that a number of subpoenas and subpoenaes duces tecum issue on behalf of Fitzpatrick and responded to the State's motion for produc- tion of evidence. Additional motions were submitted by defense counsel prior to trial and a brief relating to the testimony of Edwin Bushman was submitted during the course of the trial. At the conclusion of the trial, Adams submitted fifty-seven jury instructions for the court's consideration. Conflict of Interest: Petitioner asserts that because defense counsel had represented Bad Horse at the first trial, a conflict of interest existed in that counsel could not attempt to shift suspicion from Fitzpatrick to Bad Horse. However, as a result of the first trial, Bad Horse had been acquitted of the charges of deliberate homicide and aggravated kidnap- ping. Clearly he cannot be tried again for those same charges in this case. Consequently, we find petitioner's argument totally without merit. We note that at no point in the allegations of the petition or amended petition which served as the basis of the evidentiary hearing below did petitioner or his counsel allege conflict of interest as a basis for the charge of ineffective assistance of counsel. At the hearing prior to the 1978 retrial, petitioner indicated he was satisfied with counsel and wanted to withdraw his petition to have Adams removed from the case. The issue of conflict of interest was not raised on the appeal of petitioner's second conviction. As noted previously, it was not included in petitioner's list of allegations which prompted the evi- dentiary hearing. Now it appears. It cannot be that peti- tioner has suddenly become aware of such a charge. In Petition of Fitzpatrick (1970), 154 Mont. 512, 464 P.2d 507, an action filed by defendant pro se in this Court, Fitz- patrick raised the issue that he was denied his right to counsel when certain incriminating statements were made by him to police following a shooting. Petitioner was next before the Montana Supreme Court on the direct appeal of his conviction for the second degree murder of Alfred Falcon. State v. Fitzpatrick (1973), 163 Mont. 220, 516 P.2d 605. That appeal was unsuccessful. Subsequently, petitioner filed a pro se petition for a writ of habeas corpus in this Court the following year. The issue in that case was that Fitzpatrick's alibi defense had been hampered by a delay in appointment of counsel. This inaction on the part of the State was found to have deprived Fitzpatrick of effective representation by counsel. Given Fitzpatrick's extensive prior experience in the crlminal courts and r ight-to-counsel issues, his statement that he abandoned his early attempts to have Adams removed as his counsel because he feared being left without counsel on this capital case are without merit. Further, after thorough review of the entire file in this matter, it is clear that petitioner's allegation of conflict of interest is also without merit. Ineffective Assistance of Counsel: The standard of review for ineffective assistance of counsel claims within this jurisdiction is known as the "reasonably effective assistance" test and may be stated as follows : "Persons accused of crime are entitled to the effective assistance of counsel acting within the range of competence demanded of attorneys in criminal cases." In order to find ineffective assistance of counsel, the errors made must be "errors a reasonably competent attorney acting as a diligent conscientious advocate would not have made, for that is the constitutional standard." Cooper v. Fitz- harris (9th Cir. 1978), 586 F.2d 1325, cert. denied, 440 U.S. 974 (1979). In addition, when the claim of ineffective assistance of counsel rests upon specific acts and omissions of counsel, relief will be granted only if it appears that the defendant was prejudiced by counsel's conduct. Cooper, 586 F.2d at 1331. Further, "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." State v. Forsness (1972), 159 Mont. 105, 110, 495 P.2d 176, 179. And, ". . . Hindsight cannot now be used to say what perhaps could have been done to achieve a possible but highly speculative result . . ." State v. Noller (1963), 142 Mont. 35, 38, 381 P.2d 293, 294. Petitioner contends the proper standard for determin- ing ineffective assistance of counsel is that enunciated in Washington v. Strickland (5th Cir. 1983) , 673 F.2d 879; (Unit B) (en banc) 693 F.2d 1243, cert. granted, June 6, 1983. The Washington test is as follows: (1) petitioner has the burden of proving that his right to effective assistance of counsel was violated; (2) then petitioner must establish prejudice that worked to his actual and substantial disadvantage; and (3) a writ must be granted unless state proves counsel's ineffectiveness was harmless beyond a reasonable doubt. Petitioner has the burden to demonstrate not only a possiblity of prejudice but that it worked to his actual and substantial disadvantage. Washington, 693 F.2d at 1258. Washington also recognizes that certain lines of defense may be contradictory and thus incapable of being presented persuasively in tandem. Washington, 693 F.2d at 1253. Such was the case here. Petitioner alleges in his amended petition that certain witnesses should have been called to testify regarding certain evidence found in Radi's vehicle. To call such witnesses and elicit such testimony would have been totally incongruent with petitioner's alibi defense. Even under the Washington analysis, it is presumed that an attorney is competent and has rendered effective assistance. We have reviewed the voluminous record in this case and the extensive and superb memorandum prepared by the District Court Judge which accompanies the order dismissing petitioner's amended petition. We find that even under the Washington analysis, petitioner has failed to meet his burden. The State of Florida has sought and been granted a writ of certiorari from the United States Supreme Court regarding the Washington case. Florida has adopted the analysis seen in Knight v. State (Fla. 1981), 394 So.2d 997, and United States v. DeCoster (D.C. Cir. 1979), 624 F.2d 196. Knight requires: (1) specific omissions/acts must be detailed in an appropriate pleading; (2) defendant has burden of proof to show substantial and serious deficiency measurably below the performance of competent counsel; and (3) that within the circumstances of the case, the prejudice was s o e x t e n s i v e t h a t t h e r e was a l i k e l i h o o d i t a f f e c t e d t h e outcome of t h e c a s e . ( 4 ) The S t a t e t h e n h a s a n o p p o r t u n i t y t o r e b u t by s h o w i n g beyond a r e a s o n a b l e d o u b t t h a t t h e r e was no p r e j u d i c e . Even under t h e Knight/DeCoster standard, petitioner h e r e h a s f a i l e d t o meet h i s b u r d e n o f p r o o f . A review of t h e r e c o r d of t h i s c a s e c l e a r l y shows t h a t p e t i t i o n e r h a s f a i l e d t o meet a n y s t a n d a r d a r g u e d by h i s c o u n s e l . An a d d i t i o n a l e l e m e n t i n t h i s case i s t h e c o n c e p t o f waiver. Montana r e c o g n i z e s t h a t a d e f e n d a n t may w a i v e a p o t e n t i a l c o n f l i c t of i n t e r e s t . S t a t e v. Gallagher (1972), 1 6 2 Mont. 155, 161, 509 P.2d 852, 855. In determining whether such a c o n f l i c t h a s been waived, it is n e c e s s a r y t o consider t h e f a c t s and c i r c u m s t a n c e s s u r r o u n d i n g t h e c a s e , including the background, experience and conduct of the defendant. United S t a t e s v. Partin (9th Cir. 1 9 7 9 ) , 601 F.2d 1000. W hold e t h e r e was n o c o n f l i c t h e r e ; however, even if there had been a possible conflict of interest issue, petitioner h a s waived his right to raise such an i s s u e by h i s c o n d u c t and s t a t e m e n t s a t t h e p r e t r i a l h e a r i n g regarding possible appointment of other counsel, by his f a i l u r e t o broach t h e s u b j e c t a t t r i a l and/or on a p p e a l , a n d by his knowledge from the outset that his counsel had defended a codefendant d u r i n g t h e f i r s t t r i a l . Critical to this determination is the fact that this petitioner is extremely knowledgeable of t h e c r i m i n a l j u s t i c e s y s t e m and has argued i n e f f e c t i v e a s s i s t a n c e of counsel i s s u e s i n t h e past. Petitioner has attempted to show that a per se conflict in interest existed i n counsel's defense of Bad Horse in the first trial and of petitioner Fitzpatrick in the second trial. However, the authorities cited fail to support this contention. Petitioner also suggests a different standard should apply in capital cases. We decline to set a separate standard for judging effective assistance of counsel in a capital case. The reasons for refusal are well expressed in Washington v. Watkins (5th Cir. 1981), 655 F.2d 1346, 1357: "Innumerable practical problems would be presented by such a holding. For example, since effective assistance is not judged by hindsight, the heightened standard would have to apply to all cases in which a capital offense was charged, regardless of whether the jury subsequently convict- ed the defendant of a non-capital offense or refused to impose the death penalty in a capital case. Recognition of a 'sliding scale' for this constitutional standard would also suggest, for example, that a defendant charged with aggravated assault would be entitled to a more effective lawyer than one charged with simple as- sault or public intoxication. We decline to embark on such a treacherous path." We agree. Our research has failed to disclose any case from any jurisdiction which has held that there is a constitutional requirement of a separate and higher standard for assistance of counsel in capital cases. In conclusion, we find that, regardless of the tests advocated by petitioner, he has failed to support his allegation of ineffective assistance of counsel. Conse- quently, we hereby affirm the District Court in dismissing petitioner's amended petition. d , ~ @ ? 4 4 ~ustike Chief We concur: nold 01-sen,Dis- t%ict Judge, sitting in place of Mr. Justice John C. Sheehy Mr. Justice Frank B. Morrison, Jr., specially concurring: I concur in the result. However, I do believe that Mr. Adams's representation of Mr. Bad IIorse created a potential conflict of interest. My vote to affirm is based upon waiver on the part of petitioner, Bernard Fitzpatrick. Mr. Justice Daniel J. Shea, dissentidg: This is a death penalty case, and I remain convinced that defense counsel did not do all that he could do, and not even all that he should have done. For example, based on my previous dissents relating to the prejudicial and inconsistent jury instructions and jury verdicts, to which defense counsel did not object, a basis exists to reverse the conviction not only for the legal error inherent in the instructions and verdict forms, but also for the failure of defense counsel in a capital case to he more careful about t h e i n s t r u c t i o n s and v e r d i c t forms on which a d e a t h p e n a l t y may u l t i m a t e d y be based. T h e r e f o r e , I would o r d e r a new t r i a l .