No. 85-432
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1986
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-VS-
STEVEN WADE ELLIOTT,
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 S i x t h J u d i c i a l D i s t r i c t ,
I n a.nd f o r t h e County o f Sweet G r a s s ,
The Honorable Byron Robb, Judge p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
Knuchel & McGregor; D a n i e l B. McGregor, L i v i n g s t o n ,
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
James M. S c h e i e r , A s s t . A t t y . G e n e r a l , Helena
G. Thomas B i g l e n , County A t t o r n e y , Big Timber,
Montana
S u b m i t t e a on B r i e f s : J a n . 3 0 , 1986
Decided: April 24, 1986
Filed: APR 2 4 1986
B
-
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Defendant Mr. Elliott appeals his conviction of deliber-
ate homicide in the District Court for Sweet Grass County,
Montana. He was sentenced to a term of 100 years. We
affirm.
The issues are:
1. Was Mr. Elliott's right of due process violated at
his sentencing hearing because matters not included in the
presentence investigation report were considered.?
2. Was Instruction No. 11 properly given?
3. Was Mr. Elliott denied effective assistance of
counsel because his attorney 1) failed to investigate and
call witnesses, and 2) secured a waiver of speedy trial
vrithout informing Mr. Elliott of the consequences of the
waiver?
In July 1976, the body of 86-year-old William Feldt was
found sitting in a chair in his home in Big Timber, Montana.
There were no signs of struggle in the house, and no visible
injuries on the body. The coroner estimated that Mr. Feldt
had been dead for about two days, and determined that he had
died of natural causes. Because of the amount of time since
death, the body was not embalmed, but was instead buried in a
special air-space and water-tight container inside a casket.
In May 1983, defendant, then 22 years old and incarcer-
ated in the Lewis and Clark County Jail, contacted law en-
forcement authorities and gave a confession in which he said
he had lcilled Mr. Feldt. He said he had been a paperboy in
Rig Timber, and that Mr. Feldt, a neighbor, had been one of
his customers. He went into Mr. Feldt's house to collect for
the paper and when Mr. Feldt paid him, he noticed a large
amount of money in Mr. Feldt's wallet. Defendant turned as
if to leave, but remained in the house and hid in the kitchen
f o r about 15 m i n u t e s . When he saw t h a t M r . F e l d t had h i s
back t u r n e d , d e f e n d a n t walked up behind him and s t a b b e d him
i n t h e back w i t h a k n i f e . The o l d man f e l l i n t o a c h a i r , t h e
knife still j.n his back. Defendant s a t down in a chair
a c r o s s t h e room " t o w a i t till he was d e a d , " t h e n walked o v e r
t o t h e v i c t i m w i t h a n o t h e r k n i f e and c u t h i s t h r o a t . Notic-
ing t h a t M r . F e l d t ' s e y e s were s t i l l open, d e f e n d a n t poured a
b o t t l e of r u b b i n g a l c o h o l o v e r h i s head t o s e e i f h i s e y e s
would b l i n k . He then took M r . Feldt's wallet, which had
a b o u t $240 i n i t , withdrew t h e k n i f e from t h e v i c t i m ' s b a c k ,
and l e f t . He l a t e r b u r i e d t h e w a l l e t and t h r e w t h e k n i v e s i n
t h e dump. Defendant M r . E l l i o t t repeated h i s confession i n
w r i t i n g and f o r t h e Department o f J u s t i c e , w i t h minor v a r i a -
tions on where he disposed of the wallet and the knives.
Mr. F e l d t ' s body was exhumed f o r e x a m i n a t i o n . At trial,
a pathologist testified that he had found e v i d e n c e o f the
wounds M r . E l l i o t t had d e s c r i b e d , and t h a t M r . F e l d t had d i e d
from i n t e r n a l l o s s o f b l o o d c a u s e d by t h e s t a b wound t o h i s
back. Other d e t a i l s o f M r . E l l i o t t ' s c o n f e s s i o n s were a l s o
corroborated.
At trial, Mr. Elliott recanted his confessions. He
t e s t i f i e d t h a t h e had s e e n a 12-year o l d a c q u a i n t a n c e walk
o u t of Mr. Feldt's house h o l d i n g a w a l l e t and some money.
Mr. E l l i o t t t e s t i f i e d t h a t t h e a c q u a i n t a n c e t o l d him t o keep
quiet, and gave h i m h a l f t h e money. A t t h e time of trial,
t h i s a c q u a i n t a n c e was d e c e a s e d . Mr. Elliott testified that
he had g i v e n t h e c o n f e s s i o n s f a l s e l y , and t h a t a t t h e t i m e he
gave them he was s o d e p r e s s e d t h a t he wanted t o d i e .
I
Was M r . E l l i o t t ' s r i g h t o f due p r o c e s s v i o l a t e d a t h i s
sentencing hearing because matters not included i n t h e pre-
s e n t e n c e i n v e s t i g a t i o n r e p o r t were c o n s i d e r e d ?
The presentence investigation report submitted to the
District Court showed that Mr. Elliott had parole revoked in
April 1.983 for "parole violation - concealed weapon." At the
sentencing hearing, the District Court, over Mr. Elliott's
objection, received into evidence a written report and addi-
tional testimony by defendant's former parole officer about
the reasons that parole was revoked. Mr. Elliott contends
that this constituted consideration of other violations or
criminal activity and was error under State v. Stewart
(1977), 175 Mont. 286, 573 P.2d 1138.
In Stewart, the district judge personally interviewed
several witnesses after trial. No record was made of the
interviews and no notice was given that the interviews would
be conducted. This Court held that the judge had improperly
acted as a fact-gatherer and had infringed upon the defen-
dant's due process right to confront his accusers. Stewart,
573 P.2d at 1148.
Mr. Elliott's effort to apply the holding in Stewart to
the facts of this case fails. The additional- information in
this case was not obtained from the sentencing judge's inde-
pendent investigation, but from the person who prepared the
presentence investigation report. There is no due process
right for a defendant to have advance notice of all facts
that make up a sentencing recommendation. State v. Pearson
(Kont. 1985), 704 P.2d 1056, 1060, 42 St.Rep. 1253, 1257.
Mr. Elliott was represented by counsel at the sentencing
hearing, had the opportunity to cross-examine the witness
regarding the new material, had the opportunity to rebut the
new material, and could have called for a continuance in
order to call his own rebuttal witnesses. This situation,
unlike the one in Stewart, does not present a due process
violation.
Was I n s t r u c t i o n No. 11 p r o p e r l y g i v e n ?
The c o u r t i n s t r u c t e d t h e j u r y t h a t :
Neither t h e prosecution nor t h e defense
i s required t o c a l l a s witness a l l per-
s o n s who a r e shown t o have been p r e s e n t
a t any o f t h e e v e n t s i n v o l v e d i n t h e
e v i d e n c e , o r who may a p p e a r t o have some
knowledge o f t h e m a t t e r s i n q u e s t i o n i n
t h i s t r i a l ; nor i s t h e prosecution o r
d.efense r e q u i r e d t o produce a s e x h i b i t s
a l l o b j e c t s o r documents t h a t have been
r e f e r r e d t o i n t h e testimony, o r t h e
e x i s t e n c e o f which may have been s u g g e s t -
ed by t h e e v i d e n c e .
The j u r y w i l l always b e a r i n mind t h a t
t h e law n e v e r imposes upon a d e f e n d a n t i n
a c r i m i n a l c a s e t h e burden o r d u t y o f
c a l l i n g any w i t n e s s e s o r p r o d u c i n g any
e v i d e n c e and no a d v e r s e i n f e r e n c e s may be
drawn from h i s f a i l u r e t o do s o .
M.
r Elliott objects to this instruction, arguing that it
a p p e a r s t o l e s s e n t h e burden o f p r o o f r e q u i r e d o f t h e S t a t e .
The S t a t e a r g u e s t h a t t h e e f f e c t o f t h i s i n s t r u c t i o n i s
t o a i d t h e jury i n e v a l u a t i n g t h e e v i d e n c e on t h e b a s i s o f
what i s b e f o r e them, n o t on t h e b a s i s o f what h a s n o t been
b r o u g h t b e f o r e them. C a l i f o r n i a h a s approved t h e u s e o f t h i s
type of i n s t r u c t i o n f o r a number o f y e a r s . - People v .
See
Reingold ( C a l i f . 1 9 4 8 ) , 197 P.2d 175, 1 9 1 . The j u r y was a l s o
i n s t r u c t e d s e p a r a t e l y on t h e burden o f p r o o f i n a criminal
case. W e c o n c l u d e t h a t g i v i n g i n s t r u c t i o n No. 11 d i d n o t i n
any way a f f e c t t h e S t a t e ' s burden o f p r o o f . W hold t h a t
e
g i v i n g i n s t r u c t i o n No. 11 was n o t e r r o r .
Was M r . E l l i o t t denied e f f e c t i v e a s s i s t a n c e of counsel
because his attorney 1) failed to investiga.te and call
w i t n e s s e s , and 2) s e c u r e d a w a i v e r of speedy t r i a l w i t h o u t
informing Mr. Elliott of the consequences o f t h e waiver?
W ha-ve r e c e n t l y a d o p t e d a two-fold t e s t f o r d e t e r m i n i n g
e
whether e f f e c t i v e a s s i s t a n c e o f c o u n s e l was d e n i e d . S t a t e v.
Robbins (Mont. 1985), 708 P.2d 227, 232, 42 St.Rep. 1440,
1444, citing Strickland v. Washington (1984), 1-04 S.Ct. 2052,
2064. First, the defendant must show that counsel's perfor-
mance 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.
Defendant argues that he was denied effective assistance
of counsel because his attorney failed to call as witnesses
certain persons listed in the pretrial order. He alleges in
his brief that his attorney failed to even contact these
persons. Attached to his brief are his affidavit to that
effect and another affidavit that defendant was on drugs when
he made his confessions. We do not consider the affidavits
because they are outside the record. State v. Dess (Mont.
1984), 674 P.2d 501, 502, 41 St.Rep. 31, 33. The decision to
call or not call witnesses is a matter of trial tactics,
which are normally not grounds for a determination tha-t
counsel's performance was deficient. State v. Lopez (1980),
185 Mont. 187, 191, 605 P.2d 178, 180-1. The record fails to
substantiate defendant's allegations that the witnesses not
called could have presented evidence which would weaken his
confessions and the corroborating evidence against him.
Mr. Elliott's argument that he was uninformed of the
consequences of his waiver of speedy trial is contradicted by
the record. The record shows that the District Court judge
explained to Mr. Elliott his right of speedy trial at the
time the waiver was made, and that Mr. Elliott agreed to
waive the right. Mr. Elliott later wrote to his attorney,
asking that the waiver be rescinded. No such action was
taken, but at the next hearing on motions in this matter, the
District Court asked Mr. Elliott if he was satisfied with his
counsel's performance, and he said that he was. We conclude
that there is no evidence that counsel's performance was
deficient in securing the waiver of speedy trial.
Affirmed.
We concur: