NO. 85-146
I N THE SUPREME COURT OF THE STATE O F MONTANA
1985
IN RE THE PETJTION OF
HENRY J. GILLHAM.
O R I G I N A L FROCEEDING:
COUNSEL OF RECORD:
For P e t i t i o n e r :
Henry J . Gil-Lham, p r o s e , D e e r Lodge, Montana
For Respondent:
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
W i l l i a m A . D o u g l a s , County A t t o r n e y , L i b b y , Montana
C h u r c h , H a r r i s , J o h n s o n & Wil-1-iams; C r e s a p S.
JXcCracken, Great F a l l s , Montana
K e r r y N . N e w c o m e r , M i s s o u l a , Montana
Submitted: September 5 , 1385
Decided: O c t o b e r 3 , 1985
F i led.:
ucr 3 1985
Clerk
OPINION AND ORDER
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Henry J. Gillham seeks post-conviction relief from a
judgment of conviction of attempted deliberate homicide
entered following a jury trial in the District Court,
Nineteenth Judicial District, Lincoln County, Honorable
Robert M. Holter presiding. The District Court imposed a
sentence of 60 years for the attempted deliberate homicide,
plus an additional 10 years pursuant to S 46-18-221, MCA, for
the use of a destructive device. The cou.rt designated the
petitioner a dangerous offender for the purposes of parole.
The final judgment of conviction and sentence was entered on
May 17, 1982.
Gillham appealed his conviction to this Court. He was
represented by attorney Kerry Newcomer. On appeal., Gillham
raised the following jssues: improperly admitted evidence of
"other crimes"; improper prosecutorial argument to the jury;
juror misconduct; insufficient evidence to support the
conviction; and cumulative error. This Court affirmed the
petitioner's conviction in its opinion dated October 6, 1983.
State v. Gillham (Mont. 1983), 670 P.2d 544, 40 St.Rep. 1576.
Gillham filed his petition for post-conviction relief in
this Court on April 1, 1985 and. raised four grounds for
rel-ief: (1) improper jury instructions; (2) illegal search
and seizure; (3) ineffective a.ssistance of counsel; and ! d l
denial of right to confrontation. The State denies the
allegations offered in support of these grounds and opposes
Gillham's petition.
In the course of the proceedings before this Court,
because Gil-lham alleged that he was denied effective
assistance of counsel in his trial, the Attorney General
requested of his counsel, Kerry Newcomer, information
respecting the allegations made by Gillham in his petition.
Newcomer declined to give such information. He filed an
affidavit in which he stated that he was appointed to
represent Gillham in December of 1981, approximately 1 month
after Gillham had been arrested. Prior to that time Gillham
had been represented by private counsel. Newcomer
represented him as a part of his duties as a public defender
in 1,incoln County, Montana. Newcomer further stated in his
affidavit that he was relucta-nt to assume or infer a waiver
of the attorney-client privilege by reason of the allegations
in Gillham's petitition for post-conviction relief. For that
reason, and not as an obstacle to the proceedings before this
Court, Newcomer wanted assurances that Gillham made a knowing
and intelligent waiver of the attorney-client privilege.
On June 6, 1985, we entered an order stating that
Newcomer, as an officer of this Court, is obliged to assist
the Court in the administration of justice and that therefore
he should respond by affidavit or other sworn testimony to
admit, deny, or qualify the allegations of fact made by
Gillham in his petition. We provided that if makjng such
response required him to reveal confidential information from
Gill ham, he should nonetheless make such response, revealing
only so much confidential information as was necessary to
properly respond to Gillham's allegations. In that order, we
stated that the effective adrnj-nistration of justice and the
integrity of the fact finding system in criminal matters were
more important than the privilege granted to the
attorney-client relationship. We further stated that a
petition such as Gillham's which claims that his conviction
is the result of inadequate assistance of counsel attacks the
system of judicial administration and the fairness of our
trial procedures and that to insure convicted persons of
evenhanded justice in criminal adjudications, the Court and
the State must have access to the truth of the allegations
respecting the adequacy of counsel's representation. We
held, therefore, that Gillham's actual consent to, or his
comprehension of the waiver of the attorney-client privilege
were irrelevant when a response was necessary from the
attorney that had. represented the defendant in the criminal
case.
Newcomer did respond to the allegations of Gillham by
filing his sworn affidavit and thereafter, the State filed
its response to Gillham's petition for post-conviction
relief.
The cause is now ripe for consideration by us, and
having examined the contentions of Gillham, and responses of
the State thereto, we have determined that Gillham's grounds
which he claims entitle him to post-conviction relief are
without substance. We therefore deny his petition.
1. FAILURE TO GIVE A MANDATORY JURY INSTRUCTION
Section 26-1-303, MCA, provides that the jury is to be
instructed by the court on all proper occasions that, inter
alia, "the testimony of a person legally accountabl-e for the
acts of the accused ought to be viewed with distrust."
We will not burden this opinion with a full recitation
of the facts consti-tuting the crime for which Gillham was
convicted. Such a recitation may be found in State v.
Gillham (Kont. 1983), 670 P.2d 544, 40 St.F.ep. 1576. It is
enough to say here that Linda Weitz and Mark Darby both
testified that they met Gillham in September of 1981 when he
showed them a blasting cap and wires a ~ dclaimed to have
dynamite in his truclc for the purpose of "blowing up" Jean
Nordahl on the instigation of Nordahl's wife, Carolyn, for a
commission of $5,000 to $10,000. Weitz and Darby testified
that they went with Gillham late on November 12, 1981, to
Nordahl's shop. Darby stood guard outside while Gillham went
inside for twenty minutes to install sticks of dynamite under
the driver's seat of a truck, the dynamite wired so that it
would explode within a few seconds after the truck headlights
were turned on. Weitz and Darhy testified that the next day
Gillham told them that "[tlhe damned thing didn't go off" and
Gillham was worried about whether he had left fingerprints or
other traces which could be related to him. Out of fear of
Gil-lham, Weitz and Darhy reported the incident to the
sheriff's office.
At the time of settling i-nstructions during Gillham's
trial, his counsel, Newcomer, had prepared an instruction
embodying the mandatory statutory provision set forth above.
He withdrew the mandatory accomplice instruction, however,
during the discussion with the trial court. In his response
to the Attorney General's request for the purposes of this
proceeding, Newcomer in his affidavits stated that he
withdrew the offering instruction because it was not
applicable: Gillham's theory of defense was that Weitz and
Darby had completely fabricated their story and Gillham never
planted such a bomb.
Two legal issues arise on Gillham's contentjons
respecting the withdrawal of the mandatory jury instruction:
(I) Did the omission to instruct the jury that the testimony
of an accomplice is to be viewed with distrust vitiate his
conviction? (2) Did the withdrawal of the instruction by
Newcomer constitute ineffective assistance of counsel?
To reverse a conviction upon the ground that the defense
attorney's performance was deficient, the defendant must show
!I) coun.sel was not functioning so as to preserve the
defendant's Sixth Amendment rights and (2) the deficient
performance prejudiced the defense. Strickland v. Washington
(19841, - U.S. -- , 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674,
693. Defendant must establish a reasonable probability that
but for counsel's unprofessional errors, the result of the
trial would have been different. "A reasonable probability is
a probability sufficient to undermine confidence in the
outcome." Strickland, ,
U.S. - 1.04 S.Ct. at 2068, 80
L.Ed.7d. at 698. We have adopted the Strickland. standards.
State v. Boyer (1985), 695 P.2d 823, 831, 42 St.Rep. 247,
Although Newcomer states that Gillham's denial of any
complicity in the crime made it inconsistent for him to offer
the accomplice instruction, it is clear from the language of
the statute, and from the circumstances here, that the trial
court should have instructed the jury that the testimony of
the purported accomplices, Weitz and Darby, was to be viewed
with distrust. Their testimony strengthened the State's
case, though not the only evidence of Gillham's guilt. The
trial court did, however, instruct the jury in its
instruction no. 16:
You may not find Henry Gillham guilty on the
testimony of persons responsible or legally
accountable for the same offense, unless their
testimony is corroborated by other evidence which
in itself and without the aid of the testimony of
those responsible or legally accountable for the
same offense tends to connect Henry Gj.llham with a
commission of the offense. The corroboration is
not sufficient if it merely shows the commi.ssion of
the offense or the circumstances thereof.
A reading of our opinion in State v. Gillham, 670 P.2d
544, 40 St.Rep. 1576 will show there was much corroborative
evidence to connect Gillham to the commission of this
offense. Tn fact we stated, on the issue of the sufficiency
of the evidence, that "the case against him is overwhelming."
- at 551, 40 St.Rep. at 1584.
Id. Our confidence in the
outcome is not undermined by any reasonable probability that
the failure of the Court to give the mandatory accomplice
instruction would have brought about a different result in
Gillham's trial. Gillham's contentions on the mandatory
instruction are therefore insufficient to cause a reversal of
his conviction.
We answer the legal issues raised by this contention by
stating that the failure of the District Court to give the
mandatory jury instruction was at most harmless error and
does not serve to vitiate the conviction; and that the
withdrawal of such an instruction by Gillhamrs attorney does
not meet the requirements to show ineffective assistance of
counsel.
2. ILLEGAL SEARCH AND SEIZIJRE
Gillham's claim of illegal search and seizure relates to
a .22 caliber pistol that the evidence s h ~ w e dhad been given
to Gillham by Carolyn Nordahl to shoot Jean Nordahl on the
evening of November 12, 1981. The shooting did not take
place, and the gun was returned to Carolyn, who kept it with
another pistol on a wall in the Nordahl home. Marvin Miller
testified. that after Gillham was arrested for the dynamite
a.ttempt, he had gone to the Nordahl home, and that Carolyn
had given him the .22 pistol because she did not want it
found after Gillham's arrest. He turned it over to a deputy
sheriff. The evidence later indicated that Miller had talked
to the deputy before going to the Nordahl home, and
apparently promised that he would get the gun for the deputy.
Gill-ham charges that the seizure was illegal, that the
pistol should have been suppressed as evidence, and tha-t his
counsel was negligent in not moving to suppress the pistol at
the time of the trial, nor making it a subject for appeal.
When the matter first came up during the trial, Newcomer
was unaware that the deputy sheriff had first talked to
Mill-er about the gun.
There is no need to cjte authority because clearly there
was not an illegal search or seizure here. The pistol did
not belong to Gillham; the pistol was not taken from his
home; he had no right to the possession of the pistol. A
motion to suppress would have been futile.
With respect to the appea.1, Newcomer states in his
affidavit responding to Gillham that he and Gillham agreed
that the issue would not be raised in appeal because it was
Newcomer's legal advice to Gillham that it was not wise to
"shotgun" issues before the Supreme Court, but to pick out
the issues in which they had the strongest chance of
reversal. It need only be said further that the presence or
lack of presence of a gun in the testimony would not make a
difference in the outcome on appeal for his conviction would
have still been affirmed.
3. IMPEACHMENT OF WEITZ AND DAREY
Gillham contends that Newcomer as his counsel should
have attacked more vigorously the testimony of Weitz and
Darby, and impeached them. Newcomer refutes Gil-lham's
contention on this point by citing us to the pages of the
transcript where he cross-examined both Weitz and Darby.
Newcomer contends that because defendant denied absolutely
any involvement in the dynamite attempt counsel had no other
testimony which could he produced contrary to that of Darby
and Weitz. Eis only recourse was to point out
inconsistencies between their testimonies on prior
statements, with the object of impeaching them by showing
bias or prejudice.
Under the circumstances, we find that Newcomer did what
was possibl-e under the circumstances where his client denied
complicity in the crime, and there were no other witnesses to
refute the testimony given by those testifying. There is no
hasis for Gillham's claim of ineffective assistance of
counsel.
4. RIGHT OF CONFROIJTATION
Gillham wore a hearing aid during the trial, because of
his hearing disability. He contends in his petition that
Newcomer and an assistant James Park Taylor instructed
Gillham to disable or turn off his hearing aid. As a result
Gillham claims he was unable to hear the proceedings of trial
and that in place of being able to hear the proceedings they
had arranged for Gillham to answer "yes" or "no" with hand
signals.
Newcomer's affidavit states that prior to trial he spoke
to Gillham at length about his abil-ity to hear. Gillham
informed Newcomer that the hearing aid was sufficient but
that it needed a new batteries. The assistant obtained
batteries for Gillham and they were installed in his hearing
aid. During the trial the hearing aid was turned up to such
an extent that it squealed from feedhack. Several times
counsel requested Gillham to turn down his hearing aid during
the trial. During the trial he told counsel that he could
hear sufficiently well and understood the proceedings.
Newcomer also believed that the petitioner heard the
proceedings because from time to time in response to
testimony against him he would become excj.t.ed and would
comment that such a testimony was a lie or was incorrect in
some respect. Newcomer also asked peti-tioner to use a note
pad and pen to write out his uuestions so that he would be
less disruptive during the trial. Newcomer further states
that the allegation for using tapping on the table or other
hand signals is completely false.
We reject Gillham's contention that he was denied right
to confront his witnesses because of his hearing deficiency.
The foregoing are the principal issues raised by Gillham
in connection with his petition for post-conviction relief.
Gillham also alleges that Newcomer did not give Gillham an
opportunity to decide in an intelligent manner whether or not
he should testify i n his own behalf.
. In responding to this
allegation Newcomer points out that there was absolute
inconsistency between Gillham's version of what had occurred
and what was testified to hy other witnesses. Gillham had a
previous criminal record, and during the time of the bombing
attempt, he was engaged in illegal activities relating to
alcohol, tobacco, and firearms. Moreover, even to Newcomer,
Gillham was giving differing versions of the events
surrounding the bombing attempt. It was counsel's opinion
that if Gillham testified, he would seriously damage his
defense.
We have stated above the duty of counsel a-nd the
standard to which one is held in counselling defendants in
criminal cases. We s e e no b r e a c h o f d u t y on t h e p a r t of
Newcomer.
ACCORDINGLY, I T I S ORDERED:
1. T h e p e t i t i o n of Henry J. Gill-ham f o r p o s t - c o n v i c t i o n
r e l i e f i s hereby denied.
2. The C l e r k of t h i s C o u r t s h a l l s e n d c o p i e s of t h i s
o p i n i o n and o r d e r by o r d i n a r y m a i l t o t h e d e f e n d a n t , t o Kerry
N. Newcomer, t o t h e A t t o r n e y G e n e r a l , and t o t h e C l e r k of t h e
D i s t r i c t C o u r t of L i n c o l n , Montana.
DATED t h i s o 0-$;-l5
e7Gehw.
W e Concur: *
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