NO. 88-341
T N THE SUPREME COURT O F THE STATE O F MONTANA
1988
STATE O F MONTANA,
P I - a i n t i f f and R e s p o n d e n t ,
-vs-
TAR SCOTT STEVlART,
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 E i g h 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 C a s c a d e ,
The H o n o r a b l e T h o m a s M c K i t t r i c k , J u d g e p r e s i d i n q .
COUNSEL O F RECORD:
For A p p e l l a n t :
J o h n K e i t h , G r e a t F a l - l s , Montana
For R e s p o n d e n t :
Hon. Mike Greely, Attorney General, Helena, Montana
Joe R. R o b e r t s , A s s t . A t t y . G e n e r a l , H e l e n a
P a t r i c k L. Paul, C o u n t y A t t o r n e y , G r e a t Falls, Montana
.-F R r a n t S. T,iqht, Deputv Countv Attorney, G r e a t Falls
cD ,.
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0 - 2
AJ I
S u b m i t t e d on B r i e f s : Dec. 2, 1988
Decided: December 28, 1988
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Appellant, Tab Scott Stewart, appeals his conviction of
burglary and aggravated burglary, both felonies, and
misdemeanor theft, in the Eighth Judicial District, Cascade
County, Montana. Appellant's only claim on appeal is that he
was denied effective assistance of counsel. We affirm the
conviction.
On September 11, 1987, Pat Maag reported a burglary at
his home in Great Falls, Montana. Mr. Maag occupied the
basement apartment in a large, two story building. Various
miscellaneous items were taken, including a gold-tone Timex
watch. Mr. Maag did not see anyone enter his apartment.
However, Brian Collins, a neighbor, saw the appellant in the
alley behind Mr. Maag's residence on the previous night.
Prior to the burglary, the appellant had moved from the
apartment complex hecause he had problems with the landlord.
Appellant was also charged in a second, unrelated
crime. On October 1, 1987, at approximately 2 : 3 0 a.m., Mary
Skinner was asleep at home with her six-year-old daughter,
Meaghan. She was awakened by someone in her closet. Mrs.
Skinner spoke to the person, assuming the person was one of
her other children. Startled by her question, the intruder
moved toward the bed and grabbed Mrs. Skinner around the
throat and began to choke her and strike her face. Mrs.
Skinner screamed for her other daughter, Maile, who was
asleep in the next room. Meaghan awoke and attempted to flee
the room. The defendant grabbed Meaghan around the throat
and threw her onto the bed. Meanwhile, Maile telephoned the
police from the kitchen. There she confronted the assailant,
and told him she had contacted the police. Mrs. Skinner
chased the assailant into the living room area where she hit
him with a waterbed railing. Finally, the assailant fled the
home.
When the police arrived, Mrs. Skinner gave them a
description of the assailant. She stated he had short wavy
blond hair and wore a gray, fleece-like jacket and blue
jeans. Mrs. Skinner thought the assailant seemed familiar to
her, but she was unable to identify him. On October 5, 1987,
Maile gave Mrs. Skinner a picture of a friend who fit the
description of the assailant. The person in the photo was
the appellant, Tab Stewart.
Appellant was arrested and charged on November 4, 1987.
After a jury trial on February 24, 1988, the appellant was
found guilty of all charges. Appellant claims he was denied
effective assistance of counsel. We disagree.
Much of this appeal focuses on the testimony of Keith
Zigan, the appellant's roommate and the State's key witness.
Initially, Mr. Zigan told the police that he had been with
the appellant all evening on the night of the Skinner
burglary, substantiating the appellant's alibi defense.
However, Zigan's testimonv at trial contradicted his earlier
statements. Zigan testified that although he and the
appellant had been together for a few hours on the night of
the burglary, they parted company around 9:00 p.m. He also
stated that on the morning of October 1, 1987, he saw fresh
scratches on the appellant's chest. Zigan testified the
appellant told him about the Skinner burglary, and admitted
he hit a woman and he may have also hit a child. Zigan also
identified a gray jacket as belonging to the appellant which
was similar to the jacket Mrs. Skinner described as being
worn by her assailant.
Additionally, Zigan aided the police in the recovery of
the stolen watch. He testified that he saw the appellant go
behind their residence and throw a gold colored watch into
the field. The watch was later recovered by Great Falls
police officers and identified by Mr. Maag as belonginq to
him.
Although appellant alleges a number of errors by trial
counsel, only one such allegation merits this Court's
discussion. Appellant contends his counsel's performance was
deficient because he failed to adequately present evidence to
impeach the testimony of Keith Ziqan. Zigan testified that,
through the kitchen window of their daylight basement
apartment, he saw the defendant throw a gold colored watch
into a field. Appellant contends Zigan could not have seen
the purported incident from that specific window, because
stacked wood obstructed the view. Appellant claims counsel's
failure to call additional witnesses or present photographs
to impeach Zigan's testimony resulted in substantial
prejudice. From our review of the record, we see no error.
Ineffective assistance of counsel requires specific
acts or omissions which prejudice defendant's case and result
in the denial of a fair trial. State v. Grant (Mont. 1985),
704 P.2d 1064, 1065, 42 St.Rep. 1248, 1250. This Court has
long recognized and consistently followed the test adopted by
the United States Supreme Court for determining when
ineffective assistance of counsel has occurred:
First, the defendant must show that
counsel ' s performance was deficj-ent.
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.
Strickland v. Washington (1984), 466 1J.S. 668, 687, 104 S.Ct.
2052, 2064, 80 L.Ed.2d 674, 693. To show prejudice, a
defendant must show that, but for counsel's unprofessional
errors, there was reasonable probability that the result of
the proceeding would have been different. State v.
Strandberg (Mont. 1986), 724 P.2d 710, 713, 43 St.Rep. 1591,
1594. A reasonable probability is a probability sufficient
to undermine confidence in the outcome of the trial. State
v. Robbins (Mont. 1985), 708 P.2d 227, 232, 42 St.Rep. 1440,
1444, citing Strickland, supra.
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 toc
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.)
State v. Leavens (Mont. 1986), 723 P.2d 236, 237, 43 St.Rep.
1431, 1433, citing Kimrnelman v. Morrison (1986), 477 U.S.
365, 386, 106 S.Ct. 2574, 2589, 91 L.Ed.2d 305, 326, and
Strickland, supra.
Appellant's allegation of Ziqan's obstructed view was
addressed extensively during trial. It was initially raised
in counsel's opening statement and strongly reiterated during
closing remarks as one of many inconsistencies in Zigan's
testimony. More importantly, counsel sought to impeach
Zigan's testimony through the use of a diagram of the
apartment which illustrated how the wood pile obstructed
Zigan's view of the field. It is notable that even the
appellant testified that it is possible to see someone
outside the window from inside the apartment.
Appellant's alleged error amounts to an attempt to
second guess counsel's trial tactics and strategies. Where
no prejudice is shown, we will not question counsel's
professional deliberations. State v. Henricks (1983), 206
Mont. 469, 672 P.2d 20.
Defendant fails to point to any evidence to
substantiate his allegation of ineffective assistance of
counsel or prove his counsel's actions deprived him of a fair
trial. We find no merit in the appellant's contentions.
Affirmed.
We concur:
@&*
Justices