No. 85-231
I N T E SUPREME COURT O THE STATE O MONTANA
H F F
1986
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-VS-
RONALD LEAVENS,
Defendant and A p p e l l a n t .
APPEAL F O :
R M D i s t r i c t Court of t h e Eighth J u d i c i a l District,
I n and f o r t h e County o f Cascade,
The Honorable John McCarvel, Judge p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
E. J u n e L o r d , G r e a t F a l l s , Montana
For Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , Helena, Montana
P a t r i c i a J. S c h a e f f e r , A s s t . A t t y . G e n e r a l , Helena
P a t r i c k L . P a u l , County A t t o r n e y , G r e a t F a l l s ,
Montana
S u b m i t t e d on B r i e f s : May 1 5 , 1 9 8 6
Decided: ~ u g u s t8 , 1-986
Mr. Justice L.C. Gulbrandson delivered the Opinion of the
Court.
The defendant appeals his conviction for felony
burglary, misdemeanor attempted theft, and misdemeanor
criminal mischief, in the Cascade County District Court. His
only claim on appeal is that he was denied effective
assistance of counsel. We affirm the conviction.
On July 14, 1984, at about 5 a.m., a police officer on
patrol heard glass breaking. As he drove toward the sound,
the defendant and his companion, Lyle Gardipee, saw the
officer and ran. The officer saw that the window at
Bernadette's Restaurant was broken and pursued, caught and
arrested the two men for breaking the window. At the time of
his arrest, the defendant's clothing was dirty, his hair was
covered with gray colored dust and he had a recent cut on his
arm. Gardipee also had a gash and some dust on his clothes.
These charges were later dismissed.
About one half hour later, another officer was called
to Wood World, a furniture store, to investigate a burglary.
Wood World is about one half block from where the first
officer encountered the defendant and Gardipee. To enter the
business, the offender(s) had broken through a walled-over
window that had wire running through it and kicked through
the sheetrock covering the window. The store was cluttered
with chairs knocked over, there was blood on a desk chair and
on a desk, and an oak file cabinet had been moved from the
front to the back of the store. The offender(s) left the
building by going through the window of the rear garage door.
The person who reported the burglary heard glass
breaking at about 2:30 that morning. He did not call the
police until 5 : 3 0 a.m., when he saw the windows had been
knocked out of the rear garage door at Wood World and saw a
brass duck and a ceramic boot lying in the alley.
The officers arrested the defendant and Gardipee , who
were still in custody, for this break-in based on their
recent cuts, the dust on their clothing which looked like
dust from sheetrock, their location near the scene of the
crime, and the unusual treadmarks on defendant's shoes which
matched footprints left outside the entry point and on the
window ledge at Wood World. At trial, held December 3 and 4,
1984, an expert testified that the broken sheetrock from the
store had a unique composition containing crushed red brick
particles. Sheetrock dust recovered from the defendant's
clothing and shoes contained these red brick particles.
Another expert testified that the paint fragments attached to
the sheetrock were of a unique color mixture and that the
paint particles from defendant's clothing were of the same
color, texture, and composition as the paint on the store
wall at the point of the break-in. Both experts agreed that
the defendant ' s clothing would contain that amount of debris
only by coming into contact with sheetrock as it was being
broken. The jury returned a verdict of guilty on all three
counts charged.
On appeal, the defendant claims he was denied effective
assistance of counsel as guaranteed by the Sixth Amendment to
the United States Constitution and by Art. 11, Section 24, of
the 1972 Montana Constitution. This Court recently adopted a
two-prong test for analyzing a claim of ineffective
assistance of counsel. State v. Robbins (Mont. 1985), 708
P.2d 227, 232, 42 St.Rep. 1440, 1444, citing Strickland v.
Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674.
First, the defendant must show that counsel's
performance was deficient. This Court has used the
"reasonably effective assistance" test of whether a
defendant's counsel acted within the range of
competence demanded of attorneys in criminal cases.
State v. Rose (1980), 187 Mont. 74, 86, 608 P.2d
1074, 1081. Second, the defendant must show that
the deficient performance prejudiced him so
seriously as to deprive him of a fair trial.
State v. Elliott (Mont. 1986), 717 P.2d 572, 575, 43 St.Rep.
723, 726. The standard for prejudice is "that there is a
reasonable-probabilitythat, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068,
It will generally be appropriate for a reviewing
court to assess counsel's overall performance
throughout the case in order to determine whether
the "identified acts or omissions" overcome the
presumption that a counsel rendered reasonable
professional assistance. Since " [tlhere are
countless ways to provide effective assistance in
any given case," . . .
unless consideration is
given to counsel ' s overall performance, before and
at trial, it will be "all too easy for a court,
examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable." . . .
(citations omitted.)
Kimrnelman v. Morrison, No. 84-1661, slip op. at 19 (supreme
Court of the United States, June 26, 1986), citing
Strickland, supra.
The defendant contends that counsel's performance was
deficient in failing to call an alibi witness, failing to
investigate the defendant's explanation of damaging evidence,
failing to counter expert testimony, and failing to make a
motion to suppress the clothing seized incident to an arrest
he claims was unlawful. The defendant's allegations on
appeal concerning an alibi witness and how he got sheetrock
dust on his clothing are not supported in the record. We
will not consider these on appeal. Elliott, 717 P.2d at 575,
43 St.Rep. at 722. In addition, a decision on whether to
call a witness "is a matter of trial tactics, which are
normally not grounds for a determination that counsel's
performance was deficient." Elliott, supra.
The defendant also alleges that counsel failed to
investigate the uniqueness of his shoes and failed to counter
expert testimony on the sheetrock. Whether a decision to not
investigate such evidence is reasonable professional judgment
must be assessed under the particular circumstances.
Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at
698. Here, counsel emphasized to the jury the officers'
failure to measure the prints and compare them to the size of
defendant's shoes. He explained the sheetrock particles on
defendant's clothes when he suggested they transferred from
Gardipee to defendant during a fight and shifted
responsibility for the break-in to Gardipee. There was
little he could have done to attack the matching of paint and
sheetrock characteristics from Wood World to his clothing.
Under such circumstances, a decision to not attempt a counter
of this testimony was not unreasonable.
The defendant's final allegation is that his counsel
failed to move to suppress his clothing after it was seized
pursuant to the first, unlawful arrest. We do not agree that
the arrest was unlawful. Section 46-6-401 (1) (d), MCA, states
that an officer may arrest a person without a warrant when
"he believes on reasonable grounds that the person is
committing an offense or that the person has committed an
offense and the existing circumstances require his immediate
arrest." The officer properly arrested the defendant and his
companion without a warrant under this statute when he heard
the glass breaking, saw them near the scene, and they fled
after noticing the officer. State v. DiGiallonardo (1972),
160 Mont. 379, 503 P.2d 43. Since the defendant's clothing
was seized incident to a lawful arrest, the seizure was
proper under 5 46-5-101(1), MCA, and was admissible as
evidence. Section 46-5-104, MCA, and State v. Armstrong
(Mont. 1980), 616 P.2d 341, 349, 37 St.Rep. 1563, 1570. Any
motion to suppress this evidence would have been futile. The
defense counsel's failure to so move does not indicate a
deficient performance.
We hold that defendant has failed to carry the burden
of showing his counsel's performance was deficient or outside
the range of competence demanded of attorneys in criminal
cases and has failed to show prejudice resulting from the
alleged deficient performance.
Affirmed.
g , ~
We Concur:
Chlef Justice