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 .