No. 87-427
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DONOVAN KEITH HURLBERT,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Phillips,
The Honorable Leonard Langen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Daniel Donovan, Great Falls, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
John Paulson, Asst. Atty. General, Helena
John C. McKeon, County Attorney, Malta, Montana
Submitted on Briefs: March 24, 1988
Decided: M ~ Y 3 , 1 9 8 8
2
Filed: MAY 2 3 1988-
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Donovan Keith Hurlbert (Hurlbert) appeals his conviction
in Phillips County District Court of attempted deliberate
homicide. We affirm.
Hurlbert was found guilty by a twelve person jury of
attempted deliberate homicide in connection with a shooting
incident in the parking lot of the Miner's Club Bar near
Zortman, Montana on May 14, 1986. On May 13, 1986,
twenty-eight year old Rex Martin (Martin) completed his work
shift at a nearby mine and drove to the Miner' s Bar to
celebrate his birthday. Martin arrived at the bar shortly
after four o'clock that afternoon and proceeded to consume
beer and some schnapps. Twenty-two year old Hurlbert arrived
at the Miner's Club Bar at approximately eight o'clock that
same evening.
During the course of the evening at the Miner's Club
Bar, Martin and Hurlbert argued several times about an
incident that occurred in April of 1986 at the D-Y Bar
located near Landusky, Montana. The April incident occurred
while Hurlbert was working as a bartender at the D-Y Bar and
involved Martin, Hurlbert, and several other bar patrons.
The events of that April evening at the D-Y Bar culminated
with Hurlbert and a bar patron forcibly evicting Martin from
the bar. Martin's fingers were apparently severely smashed
when a bar patron slammed the bar doors shut on one of
Martin's hands. Martin re-entered the D-Y Bar long enough to
accuse Hurlbert of causing the hand injury and to threaten
retaliation. Martin's actions that April evening prompted
the D-Y Bar's owner to ask Martin not to patronize the bar
for thirty days. Martin later learned that Hurlbert was not
responsible for the injury to his hand.
Sometime after one o'clock in the morning of May 14,
1986, and after more than five hours of drinking for both
men, Hurlbert and Martin appeared to have settled their
differences. The two men shook hands and each drank a beer
purchased by Hurlbert. Martin then purchased a six-pack of
Rainier, his favorite beer, for the road and the two men left
within minutes of each other. Conflicting trial testimony
was presented as to what happened outside of the bar. Martin
testified that he walked to his pickup truck and was
"fumbling" for his keys when he noticed Hurlbert motion for
him to come over to Hurlbert's pickup truck. Martin
testified that as he approached, Hurlbert entered his pickup,
grabbed a twelve gauge shotgun from the seat, exited the
pickup, turned and pointed the shotgun at Martin's abdomen.
Martin contends that, as he turned to his right to flee, his
flight was obstructed by the driver's side door of Hurlbert's
pickup truck. Martin testified that Hurlbert fired the
shotgun before he could turn around to run in the opposit
direction.
Hurlbert testified that Martin followed him to the
driver's side of Hurlbert's pickup where the two men resumed
their argument about the D-Y Bar incident as Hurlbert
unlocked and opened the driver's side door. According to
Hurlbert, Martin grabbed Hurlbert, threw him aside, and
reached in and grabbed Hurlbert's shotgun from the gun rack
in the back window of Hurlbert's pickup. In the ensuing
struggle for control of Hurlbert's shotgun, Hurlbert contends
that the shotgun accidentally discharged.
After the shot, the Miner's Club bartender, Betty Veltri
(Veltri), and a patron, Dain Hathaway (Hathaway), ran outside
to find Martin shuffling back into the bar with bleeding
arms. Veltri testified that she heard Martin exclaim "he
(Hurlbert) shot me, he shot me." Vel-tri also testified that
she had a short conversation with Hurlbert who, when asked
what happened, exclaimed "he (Martin) tried to shoot me."
Hurlbert testified that he also told Veltri to inform the
sheriff's deputies when they arrived that he would be at the
D-Y Bar. Veltri did not remember Hurlbert saying where he
was going. Hathaway remembers Hurlbert and Veltri talking
but does not remember what was said. All the witnesses
agreed that Hurlbert left the Miner's Club parking lot in a
hurry. Martin was seriously injured by the shotgun blast and
his arms are permanently impaired and disfigured.
The D-Y Bar is approximately twenty miles from the
Miner's Club Bar. Upon arriving at the D-Y Bar, Hurlbert
told the bartender, Debbie Baker, that Martin had tried to
shoot him and that the shotgun discharged accidentally in the
struggle for control. Hurlbert then called the Phillips
County Sheriff 's office to report an accidental shooting and
to inform them of his whereabouts. The sheriff's deputies
investigated the crime scene for three hours before going to
the D-Y Bar to arrest Hurlbert. During that time, Hurlbert
telephoned the Miner's Club Bar several times to find out
when the deputies would arrive at the D-Y Bar. When
arrested, Hurlbert voluntarily gave the sheriff's deputies a
statement about his involvement in the shooting incident.
Martin was severely injured in the lower portions of his
left and right forearms and has incurred over $90,000 in
medical expenses as a result of the shooting. In its amended
information of September 3, 1986, the State of Montana (the
State) accused Hurlbert of attempted deliberate homicide with
a dangerous weapon pursuant to 5 45-5-102(1) (a), 5 45-4-103,
and 5 46-18-221, MCA. Hurlbert pled not guilty and gave the
State notice that he intended to present evidence of
justifiable use of force as a defense.
A jury trial commenced on February 9, 1987, and
culminated with Hurlbert's conviction on February 12, 1987.
On June 10, 1987, the District Court sentenced Hurlbert to
fifteen years confinement in the Montana State Penitentiary
for attempted deliberate homicide with an additional five
years to be served consecutively for the use of a dangerous
weapon. The District Court suspended eight years of
Hurlbert's twenty year sentence, designated him a
non-dangerous offender, and recommended that he be allowed to
serve the balance of his confinement at the Montana
Department of Institutions' Swan River Forest Camp. Hurlbert
appeals from the judgment and sentence imposed upon him and
raises the following issues for our review:
1. Did Hurlbert receive effective assistance of
counsel?
2. Did the District Court err in instructing the
jury on the issue of "flight" from the scene of the
crime?
In his first issue, Hurlbert alleges that his defense
counsel was ineffective for the following reasons:
1. Defense counsel failed to effectively test the
credibility of the State's witnesses.
2. Defense counsel failed to offer instructions on
the theory of the defense.
3. Defense counsel did not adequately prepare for
the sentencing hearing.
This Court reviews issues of ineffective counsel under the
standards set forth in Strickland v. Washington (1984), 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. State v. Johnson
(Mont. 1986), 719 P.2d 771, 773, 43 St.Rep. 913, 916. The
Strickland standards are that the defendant must first "show
that counsel's performance was deficient," and then must
"show that the deficient performance prejudiced the defense."
Strickland, 466 U.S. at 687. We have reviewed numerous
claims of ineffective counsel under a myriad of circumstances
and recognize that the burden is heavy on a defendant who
seeks to reverse a judgment on such grounds. State v.
LaValley (1983), 203 Mont. 393, 398, 661 p.2d 869, 872.
To begin with, this Court will not second guess the
trial tactics of defense counsel. State v. Tome (Mont.
1987), 742 P.2d 479, 482, 44 St.Rep. 1629, 1632; State v.
Brown (Mont. 1987), 741 P.2d 428, 430, 44 St.Rep. 1462, 1464.
Furthermore, a claim of ineffective counsel must be grounded
in facts found in the record, not on "mere conclusory
allegations." Tome, 742 P.2d at 482. Defense counsel's use
of objections during trial lie within his or her sound
discretion and failure to object must, in addition to being
error, also prejudice the defendant. Brown, 741 P.2d at 430;
State v. Probert (Mont. 1986), 719 P.2d 783, 786, 43 St.Rep.
In adopting the Strickland standards, we also recognized
that any alleged error by defense counsel must be shown to
prejudice the defendant before reversal will be warranted.
State v. Robbins (Mont. 1985), 708 P.2d 227, 43 St.Rep. 1440
(citing Strickland). Robbins sets forth what the defendant
must show in order to establish prejudice:
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.
Robbins, 708 P.2d at 232.
Defense counsel's decision not to extensively
cross-examine certain witnesses in this case was a tactical
decision within his discretion. Hurlbert contends that
defense counsel should have cross-examined Martin as to his
version of the shooting to point out improbable, inconsistent
and confusing facts in Martin's story. However, defense
counsel sufficiently attacked Martin's testimony in his
closing argument. Defense counsel also solicited evidence
from Hurlbert and other witnesses that tended to conflict
with Martin's story. We recognize that it is sometimes a
more prudent trial tactic to indirectly attack a witness'
testimony through the testimony of other witnesses and in
closing arguments rather than to put undue emphasis on one
witness' version with extensive cross-examination. Whether
defense counsel consciously chose one of the above methods
over the other as a trial tactic is not only subject to
speculation, but is also immaterial to the issue of his
performance at trial. The bottom line is that Hurlbert was
not prejudiced because defense counsel did an adequate job in
pointing out the difference between Martin's testimony and
Hurlbert's testimony in his closing argument and through the
testimony of other witnesses. In the final analysis, it was
for the jury to decide whose story was plausible and
believable. Any shortcomings in Martin's testimony could
either have been readily apparent to the jury or were
sufficiently pointed out by defense counsel during the course
of the trial.
Hurlbert next contends that defense counsel erred in not
submitting a "justifiable use of force" or "self defense"
instruction to the jury. Hurlbert gave notice before trial
of his intention to submit evidence of justifiable use of
force. During the settling of jury instructions, defense
counsel refused to submit a proposed instruction regarding
justifiable use of force even though both the State and the
District Court appeared receptive to such an instruction.
The record reflects that defense counsel believed that the
defenses of accident and justifiable use of force were
inconsistent with each other and that a justifiable use of
force instruction was inconsistent with the evidence.
Defense counsel again exercised his tactical discretion and
elected to defend on a theory of accidental shooting.
Hurlbert argues that defense counsel was mistaken in his
belief that accident and justifiable use of force are
inconsistent defenses that cannot be argued simultaneously.
In response, the State points out that the evidence does not
support a justifiable use of force instruction and contends
that defense counsel's decision not to rely on such a defense
does not constitute ineffective assistance. We agree with
the State. The evidence presented at trial clearly shows
that Hurlbert could not have reasonably believed that he was
justified in using force likely to cause death or serious
bodily harm (shooting Martin with a twelve-gauge shotgun).
See § S 45-3-101 et seq., MCA (statutes governing justifiable
use of force). Defense counsel's refusal of an instruction
based on a defense not supported by the record did not deny
Hurlbert effective assistance of counsel. State v. Docken
(Mont. 1986), 720 P.2d 679, 680, 43 St.Rep. 1058, 1061.
As to Hurlbert's third contention of error regarding
defense counsel's lack of skill, we are not convinced that
defense counsel committed any error nor are we convinced that
Hurlbert was prejudiced. Hurlbert alleges that defense
counsel should have challenged two members of the jury panel
for cause because these people were related by marriage to
one of the investigating sheriff's deputies. However, the
State is correct in its assertion that this particular
relationship to an investigating officer is not sufficient,
absent a showing of impartiality, to challenge for cause.
State v. Hendricks (1976), 171 Mont. 7, 11, 555 P.2d 743,
746; S 46-16-304, MCA. The State's attorney questioned each
of the two individuals as to whether their relationship to
the investigating officer would prohibit them from being fair
and impartial jurors. Each person answered that they would
be fair and impartial. One of the prospective jurors that
Hurlbert now complains about was not chosen to be a juror.
The other person was a juror, but Hurlbert has failed to show
any impartiality or resultant prejudice associated with this
person's deliberations.
Hurlbert also questions the impartiality of a third
juror who, before voir dire had commenced, indicated to the
judge that she might be opinionated. This juror was cut off
in mid-sentence by the judge who indicated that she should
wait for voir dire. Defense counsel later questioned this
woman and discovered that, while she knew Rex Martin's
parents, she still felt she could be impartial. Again,
defense counsel was not ineffective in not challenging a
juror for cause where no partiality or prejudice has been
shown.
The remainder of Hurlbert's assertions of error
regarding defense counsel's trial skills deal with alleged
failure to object and failure to adequately cross-examine
witnesses. These alleged "failures" could just as easily be
classified as discretionary trial tactics. We reiterate that
defense counsel's use of objections is within his discretion
as trial tactics. Brown, 741 P.2d at 430; Probert, 719 P.2d
at 783. More importantly, Hurlbert has failed to show any
resultant prejudice. We will not second guess defense
counsel's tactics absent a showing of prejudice.
In his final contention of ineffectiveness, Hurlbert
asserts that defense counsel did not adequately prepare for
the sentencing hearing. Hurlbert first alleges that defense
counsel failed to marshall essential evidence to convince the
District Court that Hurlbert should be sentenced to a
jail-based work release sentence. The State insists that the
record of the sentencing hearing indicates that defense
counsel prepared extensively for the hearing and presented
adequate testimony and evidence regarding a jail-based work
release program. Our review of the record indicates that the
State is correct and that defense counsel was not ineffective
at the sentencing hearing.
Hurlbert also argues that defense counsel was
ineffective at the sentencing hearing because he failed to
challenge the applicability of mandatory minimum sentencing.
The State argued at the sentencing hearing that the mandatory
minimum sentence for the offense of deliberate homicide (ten
years) applied to the offense of attempted deliberate
homicide. Defense counsel challenged the State's position in
this regard on different grounds than those now argued by
Hurlbert on appeal. Again, we refuse to second-guess defense
counsel's trial tactics.
Hurlbert also requests that we remand for resentencing
on the grounds that the District Court erred in believing
that a mandatory minimum sentence applied. We note that
perpetrators of attempt crimes may be sentenced up to the
maximums provided for the offense attempted. Section
45-4-103 ( 3 ) , MCA. We review sentences for legality only and
will not disturb a District Court's sentencing decision
absent a showing that the District Court abused its
discretion. State v. Almanza (Mont. 1987), 746 P.2d 1089,
1090-91, 44 St.Rep. 2064, 2067. Hurlbert's sentence is well
within the legal limits for the offense charged and we will
not remand for resentencing as he has asked on this appeal.
Having found no evidence of defense counsel's ineffectiveness
or prejudice to Hurlbert, we hold that Hurlbert received
effective assistance of counsel.
In his final issue, Hurlbert argues that the ~istrict
Court erred in giving the following jury instruction:
You are instructed that you may take into
consideration any testimony showing, or
tending to show, flight or concealment by
the defendant. The testimony may be
considered by the jury as a circumstance
tending to prove a consciousness of
guilt, but is not sufficient of itself to
prove guilt. The weight to be given to
such a circumstance and the significance,
if any, to be attached to it, are matters
for the jury to determine.
Defense counsel objected to the use of this instruction at
trial on the grounds that the uncontradicted evidence was
that Hurlbert made no attempt to leave or conceal his
whereabouts for the purpose of evading arrest.
The above instruction is almost identical to the
instruction this Court approved in State v. Walker (1966),
148 Mont. 216, 225, 419 P.2d 300, 305. As in Walker, the
evidence in the instant case was sufficient to support the
giving of the instruction on flight. Hurlbert contends that
he did not attempt to evade arrest as evidenced by his
telling Betty Veltri where the sheriff's deputies could find
him and by his repeated telephone calls to the Miner's Club
Bar from the D-Y Bar. However, as was the case in Walker, it
was a matter for the jury to decide whether it believed
Hurlbert's explanation for leaving the scene of the crime.
Walker, 419 P.2d at 306. Hurlbert admitted leaving the
Miner's Club Bar after the shooting and several witnesses
testified that he left in a hurry. We hold that the District
Court did not commit reversible error in giving the
instruction on "flight" based on the evidence in this case.
Hurlbert has failed to show that defense counsel was
ineffective according to the standards set forth in
Strickland. His sentence was within the legal limits for the
offense and was not an abuse of the District Court's
discretion. the evidence tended to show that Hurlbert left
the scene of the crime and the jury was properly instructed
on the issue of "flight." Accordingly, we affirm the
District Court's judgment and sentence as to all issues
presented on this appeal.
Affirmed.
We Concur: / P ustice