No. 85-93
I N THE SUPREME COURT OF THE STATE OF MONTANA
1986
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-vs-
PATRICIA MERRITT JOHNSON,
Defendant and Appellant.
APPEAL FROM: D i s t r i c t Court o f t h e Fourth J u d i c i a l District,
I n and f o r t h e County o f M i s s o u l a ,
The H o n o r a b l e J a c k L . G r e e n , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
Anthony F. Keast, M i s s o u l a , 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 , H e l e n a , Montana
Dorothy M c C a r t e r , A s s t . A t t y . G e n e r a l , Helena
R o b e r t L . Deschamps, 111, County A t t o r n e y , M i s s o u l a ,
Montana; Ka.ren Townsend, Deputy County A t t o r n e y
S u b m i t t e d on B r i e f s : Feb. 26, 1986
Decided: June 5, 1986
Filed: JUN 5 - 1986
Clerk
f-
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Following a jury verdict convicting Patricia Merritt
Johnson of felony theft, the Missoula County District Court
sentenced her to five years in prison with four years
suspended and ordered her to pay restitution. Johnson
appeals raising one issue; i.e., whether she received the
effective assistance of counsel. We affirm the conviction.
In 1981 appellant worked for the Montana State
Department of Highways as a Gross Vehicle Weight (GVW)
enforcement officer. She worked at a highway scales station
near Missoula, Montana. Generally, the duties of such an
employee are to inspect trucks for vehicle registration and
fuel requirements, to weigh and measure vehicles, to
determine if a vehicle requires a permit or special license,
and to sell such permits and licenses as the vehicles
require. These employees are required to deposit the money
they collect in the State Treasurer's account in local banks.
In October 1981 appellant resigned her position with
the Department of Highways. The Department has a procedure
for "checking out" GVW employees upon their resignation. The
employees turn in their uniforms and the remaining permits
and licenses which have been issued to them. Following
appellant's resignation, the State discovered that several of
the permits issued to appellant were unaccounted for. These
permits were not returned to the State after appellant
resigned nor was there a record of the deposit of money from
their sale. State officials spoke with appellant, who was
then living in New Mexico, by phone about the missing
permits. The State conducted a further audit of appellant's
work record. This audit showed that other work reports
required of appellant were missing. The audit also showed
that appellant had sold permits but that there was no record
that appellant had deposited the money in the State's
account. The audit concluded that appellant collected
$2,082.97 of State revenues which had never been accounted
for. The audit further concluded that there was $82.00 worth
of unaccounted for permits.
In October 1981 two Highway Department employees spoke
with appellant about the missing documents. They both
testified at trial that appellant assured them that she had
all the missing permits and documents to clear her of
suspicion. They both testified that the State never received
any of this exculpatory material. Mike McMeekin, a deputy
sheriff in Missoula, spoke with appellant in 1981 and
testified that she claimed to have documents which would
clear up any suspicions of her. McMeekin stated that he was
to meet with appellant but that she did not show up or
otherwise provide the police with the exculpatory material.
Tom Adamo, an investigator with the Montana Criminal
Investigation Bureau, gave testimony similar to the above
comments of McMeekin.
Appellant did not account for the missing funds and
permits and, as a result, she was arrested in New Mexico and
returned to Montana to face the felony theft charge. She was
initially arraigned in Missoula on this charge in October
1982. During a fourteen month period, appellant signed three
waivers of speedy trial and her trial was delayed for some
time. Appellant waived the right to a speedy trial
apparently hoping her counsel could negotiate an out of court
settlement. The State offered a plea bargain which provided
that in return for a plea of guilty to felony theft, the
State would recommend a two year deferred sentence plus
restitution of $2,500. Appellant was unable to raise that
amount although she had a year to do so. Finally, appellant
decided to assert her innocence and go to trial on the
charge.
The District Court held appellant's trial on September
11 and 12, 1984. Shortly before trial, appellant and her
counsel met before the court reporter to discuss the case
while on the record. Counsel advised appellant that in her
professional opinion it would be best to wait until the
conclusion of the State's case-in-chief before deciding
whether appellant would testify in her own defense.
At trial, counsel for appellant initially reserved her
opening statement. The State presented its case-in-chief and
established the facts surrounding the missing funds and
permits. The State could not show what actually happened to
the missing items and relied mainly on circumstantial
evidence to prove its case. During the trial, the State
elicited testimony showing that in 1977 Highway Department
officials were unable to account for $147.50 in cash and
permits that appellant was responsible for. Appellant's
counsel did not object to this evidence. Following the
State's case-in-chief, appellant and her counsel held another
private discussion on the record to make strategic decisions.
At that time, appellant's counsel stated that her
professional opinion was that appellant should not take the
stand; that appellant had the constitutional right to not
take the stand; that it was appellant's decision whether or
not to testify; that appellant did not have plausible answers
for some of the questions the county attorney might ask;
that, in her opinion, the potential harm in answering the
county attorney's questions outweighed any harm in not
testifying; and that she did not see the need to call any
witnesses on the appellant's behalf. The appellant decided
of her own volition not to testify. After returning to the
courtroom, appellant's counsel declined to call any witnesses
and waived her opening statement.
In her closing argument, defense counsel advanced
appellant's defenses to the theft charge. First, counsel
vigorously attacked the accuracy of the State's audit.
Counsel also argued that the State had not proved that
appellant had the requisite intent (purposely or knowingly
committing the offense) to be convicted of the offense.
Counsel pointed out that the State only learned of the
missing funds through appellant's daily reports reporting the
sales of permits and collection of money therefrom. Counsel
argued that it was inconsistent for appellant to report the
sales on the one hand and then misappropriate the money
(which had been reported) on the other hand. Lastly, counsel
argued that if appellant failed to meet with State officials
to clear up the matter, it was only because of
miscommunication and the fact that appellant lived so far
away in New Mexico.
The jury found appellant guilty of felony theft. After
sentencing, this appeal followed. The only issue is whether
the conviction must be overturned because ineffective
assistance of counsel deprived appellant of a fair trial.
The Sixth Amendment of the United States Constitution
and Art. 11, S 24 of the Montana Constitution guarantee the
right to counsel to a defendant in Montana. The right to
counsel is recognized as a right to the effective assistance
of counsel. McMann v. Richardson (1970), 397 U.S. 759, 90
S.Ct. 1441, 25 L.Ed.2d 763; State v. Bubnash (1961), 139
Mont. 517, 366 P.2d 155. The United States Supreme Court, in
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674, recently stated what a defendant must
show to gain reversal of his conviction where he claims
ineffective assistance of counsel.
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 the "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.
Strickland, 466 U.S. at 687.
That is the test under the federal constitution. This
Court recently adopted the Strickland formula as the test of
whether a defendant's right to counsel under the Montana
Constitution has been violated. State v. Elliot (Mont.
1986) - P.2d -, 43 St.Rep. 723. We also cited the
Strickland test for what constitutes prejudice to a
defendant.
"The defendant must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of a proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence in
the outcome."
State v. Robbins (Mont. 1985), 708 P.2d 227, 232, 42 St.Rep.
1440, 1444; citing Strickland, 466 U.S. at 694.
A defendant must show prejudice to establish a violation
of her right to counsel under either the state or federal
constitution. We hold that appellant has not shown that her
defense was prejudiced by her counsel ' s performance. Thus,
we further hold that appellant's state and federal
constitutional rights to counsel were not violated. We have
no need to address the first prong of the Strickland test,
which is whether counsel's performance was deficient. Such
an approach was recommended in Strickland, where the Court
stated:
If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that
course should be followed.
Strickland, 466 U.S. at 697.
Appellant alleges a number of errors on the part of her
prior counsel. Appellant contends that her prior counsel
should have subpoenaed State records and conducted an audit
of those records. ~ ~ ~ e l l d n t not specify what records
does
should have been audited nor what they would have shown. In
any event, an audit of appellant's State work records was
introduced into evidence and it showed that appellant was
responsible for over $2,000 of missing funds and permits. We
find no prejudice here.
Appellant asserts that her counsel should have contacted
various trucking companies to see if those companies issued
bad checks to appellant in buying permits from her. This
assertion is based completely on speculation that bad checks
may have been issued to appellant and that the State would
hold her responsible. Such speculation does not show
prejudice to appellant's defense.
Appellant also asserts that her prior counsel should
have interviewed prospective defense and State witnesses.
She contends that possible defense witnesses were familiar
with the bookkeeping procedures of the GVW division.
Appellant does not specify how these witnesses could have
helped her defense or how the bookkeeping procedure was
inaccurate. We will not engage in speculation to find
prejudice to appellant.
Appellant contends that her prior counsel failed to
properly consult with her but again she does not specify how
this prejudiced her defense. In any case, "Lack of
communication between defendant and defense counsel is not of
itself basis for reversal on grounds of ineffective
assistance of counsel." State v. Long (Mont. 1983), 669 P.2d
1068, 1072, 40 St.Rep. 1493, 1497.
Appellant further asserts that her counsel failed to
object to possibly inadmissible and prejudicial evidence (the
testimony of a prior incident where $147 of State funds in
appellant's control was unaccounted for). Although the court
may have sustained an objection to this evidence, we do not
find the failure to object to be sufficiently prejudicial to
appellant to merit reversal.
The failure to object to improper evidence,
standing alone, is not sufficient grounds to
support a claim of inadequate representation ...
(Citation omitted.)
State v. McElveen (1975), 168 Mont. 500, 507, 544 P.2d 820,
824. Nor is it sufficient in this case in combination with
the other alleged errors.
Finally, appellant claims that her prior counsel failed
to properly advise appellant of her Fifth Amendment right not
to testify. We disagree. Above, we cited part of the
discussion which appellant held with her counsel and which
was made part of the record. The record shows that counsel
advised appellant that appellant did not have to testify,
that it was appellant's decision whether or not to testify,
and that in counsel's opinion appellant should not testify.
In sum, we hold that appellant has not shown sufficient
prejudice to her defense by counsel's performance to gain
reversal. Therefore, appellant's claim of ineffective
assistance of counsel must fail. F e affirm the conviction.
J
gflT-ex
hief Justice