No. 84-404
I N THE SUPREME COURT O F THE STATE OF MONTANA
1985
STATE O F MONTANA,
Plaintiff and R e s p o n d e n t ,
-vs-
RANDALL C L I F F O R D ROYER,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e T w e n t i e 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 C o u n t y of L a k e ,
T h e H o n o r a b l e R o b e r t M. H o l t e r , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For Appellant:
B r i a n J . S m i t h , P o l s o n , Montana
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 , M o n t a n a
J o h n R. F r e d e r i c k , C o u n t y A t t o r n e y , P o l s o n , M o n t a n a
- --
S u b m i t t e d on B r i e f s : J a n . 31, 1 9 8 5
Decided: February 21, 1985
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Clerk
Mr. Justice John C. Sheehy delivered the 0pini.ori of the
Court.
This is the second time this case has been before us on
appeal. In November 1980, defendant Boyer was convicted in a
jury trial in the Fourth Judicial District, Lake County, of
two counts of sexual intercourse without consent and one
count of aggravated kidnapping. He was sentenced to 30 years
on each count of sexual intercourse without consent and 1 0
years for the aggravated kidnapping. All sentences are to
run concurrentl-y .
Defendant's conviction stems from a series of events
that took place in Missoula and Lake Counties on April 16 and
17, 1380. Defendant appealed his conviction and raised two
issues for our consideration, to-wit: (1) lack of a speedy
trial; and (2) ineffective assistance of counsel. On
February 28, 1984, we decided State v. Boyer (Mont. 1984),
676 P.2d 787, 41 St-Rep. 321. We held that Boyer was not
denied a speedy trial but the record was not sufficient to
determine whether Boyer was denied the effective assistance
of counsel. Accordingly, we remanded the case to the
District Court for an evidentiary hearing and ruling on the
motion for a new trial.
A hearing was held on June 14 and 15, 1984 in Lake
County, Judge Holter presiding. Several witnesses testified
at the hearing including the defendant Boyer, his trjal
counsel Harris, Judge Henson who heard the original case, P 4 r .
Heinz, the prosecuting attorney, and witnesses Hammond,
Reikena and McDonald who defendant claims could have provided
a defense for him at trial hut were not called by trial
counsel Harris. The testimony at the hearing addressed all
the factual issues surrounding defendant Boyer's contention
that trial counsel was incompetent. Findinqs of fact and
conclusions of law were issued on August 6, 1984 and
defendant's motion for a new trial was denied. From the
denial of this motion, defendant appeals.
Defendant presents two related issues on appeal. Does
the evidence support the findings and concl.usions of the
District Court? Does the record show the defendant was
denied effective assistance of counsel?
We shall address the first issue and determine whether
the findings of the District Court are supported by the
evidence. Only after a factual record js established can we
view the conduct of trial counsel to ascertain whether such
conduct deprived the defendant of a constitutional right.
The evidentiary hearing on remand is a fact-finding
process within a criminal- case so the standard of review is
the same as for criminal bench trials. There must be
substantial evidence to support the findings of the trial
court. See State v. Duncan (1979), 181 Mont. 382, 387, 593
P.2d 1026, 1030. Using this standard, we view defendant's
specific contentions.
Defendant contends trial counsel Harris did not visit
him often enough in jail to adequately prepare a defense.
The trial court found 20 hours by defendant's estimate and 40
hours by Harris' estimate were spent with defendant in jail.
The trial court explained the discrepancy in the jail log by
the fact that Harris stated he visited defendant in
conjunction with seeing other clients at the jail and this
was not reflected by the log. The court found Harris spent
between 250 and 300 hours preparing for trial. The record
containing the testimony of defendant, Harris, and the jailer
support the court's findings and we hold finding of fact no.
3 supported by substantial evidence.
In finding of fact no. 4a the court found that Harris
contacted potential witnesses Hammond and Riekena and neither
had any information that would have been helpful to
defendant's case. The testimony as to whether or not these
wit.nesses were contacted by Harris is inconsistent. We need
not decide whether this finding was erroneous because it is
undisputed that neither Hammond nor Riekena could provide any
information concerning the events of April 15 and 16, 1980
that could help provide a defense to defendant for the crime
which he was charged. They so testified at the hearing.
Defendant's argument that trial counsel was negligent
for not examining the victim's clothing is without merit.
The trial court found that the evidence could only show the
presence of menstrual. blood and this would not have helped
defendant's case. It would not have proven the victim did
not sustain injuries. Defendant himself stated what he
thought it would prove when he stated at the hearing, "Well,
it would prove that all the blood didn't come from those
lacerations. That's what jt could prove."
The fact that Harris did not take depositions of various
witnesses after procuring an order allowing him to take the
depositions is insignificant. Defendant refused to pay for
those depositions. All the witnesses testified at trial and
defendant shows no prejudice or inadequate cross examination
from the failure to obtain depositions. The findings of the
trial court are supported by substantial- evidence.
Defendant contends the District Court's finding of fact
no. 4 (d) that Harris spent sufficient time reviewing witness
statements with defendant is erroneous. The court chose to
believe Harris and not defendant. "It is the function of the
trier of facts, in a case tried to the judge, to determine
the credibility of the witnesses and the weight to be given
the testimony and he may pick and choose which of the
witnesses are to be believed from a consideration of all the
evidence. State v. Medicine Ball Jr. (1968), 152 Mont. 34,
445 P.2d 916 ... " State v. Longacre (1975) 168 Pont. 311,
313, 542 P.2d 1221, 1222. We hold the court's determination
that trial counsel Harris spent sufficent time consulting
with defendant and that he reviewed statements an2 other
evidence with the defendant in preparation for trial is
supported by substantial evidence.
The right to be represented by counsel is guaranteed to
the criminal defendant by the Sixth Amendment to the United
States Constitution and by Article 11, Section 2 4 of the
Montana Constitution. The right to counsel guaranteed is not
only the presence of counsel but the effective assistance of
counsel. In State v. Rose (1980), 187 Kont. 7 4 , 86-87, 608
P.2d 1054, 1080-81, we set forth a standard to measure the
effectiveness of the trial. counsel under Montana's
Constitution. Persons accused of crime are entitled to the
effective assistance of counsel acting within the range of
competence demanded of attorneys in criminal cases. The
specific acts or omissions of trial counsel must prejudice
the defendant's case. The prejudice must be of such a nature
and magnitude that defendant is denied a fair trial.
Recently the United States Supreme Court set forth
standards governing the ineffective assistance of counsel in
Strickland v. Washington ( 1 984) , U.S. 104 S.Ct.
2052, 80 L.Ed.2d 674. The Court adopted the following
two-pronged test:
"First, the defendant must show that counsel's
performance was deficient. This requires showing
that counsel made errors so serious that counsel
was not functioning as counsel guaranteed the
defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel's errors were so serious as to deprive the
defendant of a fair trial., a trial whose result is
reliable." - 80 L.Ed.2d at 693.
Id.,
Defendant failed to demonstrate to the trial court at
the remand hearing or to this Court on appeal that he was
deprived of a fair trial by ineffective assistance of
counsel. FJe affirm the order denying defendant a new trial.
and. affirm his conviction.
The State moved thj-s Court to amend the statement of
facts recited in our original opi.nion, State v. Boyer (Mont.
19841, 676 P.2d 787, 4 1 St.Rep. 321. We have reviewed this
statement of facts and find it to be a concise and accurate
recitation of the essential facts on which the defendant wa.s
convicted. Including additional facts containing 1.urid
details v~ould not aid in illuminating the issues in this
case. They would be surplusage. Motion denied.
Order denying new trial is affirmed.
Conviction affirmed.
We Concur:
Chief Justice