No. 89-242
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
TOMMY G. JOHNSTONE,
a/k/a TOM JOHNSTONE,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Sweet Grass,
The Honorable Byron Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Todd R. Hillier, Esq.; R. Mark Josephson, Esq.; Big
Timber, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Jennifer M. Anders, Asst. Attorney General, Helena,
Montana
James Tulley, Deputy County Attorney; Thomas Biglen,
County Attorney, Big Timber, Montana
Submitted on Briefs: June 14, 1990
Decided: September 13, 1990
Filed:
!
" Clerk
south on Highway 298 toward the McLeod fishing access the same
afternoon. The driver of the pickup looked familiar to
Undersheriff Ames. After stopping at the sheriff's department in
Big Timber, Ames went off duty. At his home, Ames later received
a call from the sheriff's department dispatcher describing the
circumstances surrounding the damage to Carl Leader's vehicle. At
this time, Ames recalled the identity of the pickup driver and had
reason to believe the driver may have been responsible for the
damage to Leader's vehicle. Ames arranged for lookouts on various
routes leading from the McLeod area while he and a deputy drove up
the Boulder River drainage several miles past the fishing access.
Ames's son Dan, a Stillwater County Sheriff's Deputy, then
advised his father he was following a turquoise-colored pickup with
23-county license plates occupied by one male. Ames requested that
his son make a felony stop. The driver of the turquoise pickup,
the defendant, stopped approximately two miles east of Columbus,
roughly 65 miles from the fishing access. Deputy Ames arrested
the defendant, had him transported to Columbus and arranged for his
pickup to be towed into town.
Carl Leader identified defendant's vehicle as the one he had
seen at the fishing access prior to discovering his window broken.
Leader did not at that time identify defendant as the occupant of
that vehicle. During an inventory of defendant's personal
possessions as part of the booking process, Stillwater County
Deputy Albert Hust removed a quantity of glass particles from
defendant's shirt and pant pockets. Hust put the glass recovered
into separate evidence bags. Defendant gave Undersheriff Ames
permission to search his vehicle. Ames found leather gloves
imbedded with glass and a pry bar with pieces of glass on it.
Defendant was charged by information with attempted theft, a
felony, in violation of § 45-6-301, MCA, and criminal trespass to
vehicles, a misdemeanor, in violation of 5 45-6-202, MCA. Counsel
was appointed for defendant and he pled not guilty to both charges.
The State gave notice to defendant of its intention to offer
evidence of other crimes as follows:
1. Evidence of a theft by the defendant of a tool
box and tools from a motor vehicle belonging to Marvin
Maxwell while the vehicle was parked at a Fishing Access
site in Sweet Grass County, Montana, on August 23, 1986,
including proof of defendant's conviction of felony theft
in such matter. Such evidence will be offered to
establish motive, intent, plan and/or absence of mistake
or accident with respect to defendant's conduct at issue
in these proceedings.
2. Evidence of a theft by the defendant of a purse
and cash from a motor vehicle belonging to Cora Nelson
while it was parked at Carter's Bridge, Park County,
Montana, on August 7, 1986, including proof of
defendant's conviction of felony theft in such matter.
Such evidence will be offered to establish motive,
intent, plan and/or absence of mistake or accident with
respect to defendant's conduct at issue in these
proceedings.
3. Evidence of a theft by defendant of binoculars,
camera equipment and cash from a motor vehicle belonging
to John Hewitt and JoAnne Rathburn while the vehicle was
parked at Mallard's Rest ~ishingAccess on August 9,
1986, including proof of defendant's conviction of felony
theft in such matter. Such evidence will be offered to
establish motive, intent, plan and/or absence of mistake
or accident with respect to defendant's conduct at issue
in these proceedings.
4. Evidence of a theft of a rifle from a pickup
truck at Grey Cliff Fishing Access, Sweet Grass County,
Montana, in August 1988 and possession thereof by
defendant at his place of residence in Roundup, Montana.
Such evidence will be offered by the State to establish
a common scheme of thefts by the defendant as well as to
establish motive and intent.
Respondent then filed an amended information adding a third count
(Count 111) charging defendant with felony theft in violation of
5 45-6-301, MCA, in connection with the rifle theft at Grey Cliff
Fishing Access.
Counsel for defendant movedto dismiss the amended information
arguing the State "attempt[ed] to combine two or more misdemeanors
under the concept of common scheme in order to establish a felony
status against . . . defendant" and that the facts contained within
the information were insufficient to establish criminal conduct.
The District Court denied this motion as well as a second motion
to dismiss based on an absence of probable cause. Counsel for
defendant filed briefs accompanied by exhibits in support of both
motions. The court further denied the State's motion to dismiss
Count I11 of the information.
At trial, defendant testified that on September 1, 1988, he
had driven from Roundup to Bozeman seeking work as a firefighter.
At Reedpoint, the throttle bracket on defendant's pickup broke and
he lost power. Approximately two hours later, around 5:00 p.m. ,
defendant turned back toward Billings. He testified to using his
gears to pull his pickup over the hill where Deputy Sheriff Dan
Ames eventually arrested him. Defendant denied breaking into
Leader's vehicle. The State called Dr. Larry B. Howard of the
State crime lab who performed tests comparing the glass found in
defendant's pockets and imbedded in his gloves with glass taken
Justice Diane G. Barz delivered the Opinion of the Court.
Tommy Johnstone appeals his conviction of felony attempted
theft and criminal trespass to vehicles by a jury empaneled in the
District Court of the Sixth Judicial District, Sweet Grass County.
We affirm.
On September 1, 1988, Carl Leader was fishing at a State
access on the Boulder River off Highway 298 near McLeod, south of
Big Timber, Montana. Mr. Leader arrived at the access at
approximately 3: 30 p.m. and fished for roughly one and one-half
hours. Leader locked a pistol, fishing gear and a jacket inside
his truck. There was no one else present at the access when Mr.
Leader arrived and he saw only one other vehicle during this time.
Mr. Leader did not have a clear view of the parking area at all
times. Shortly before leaving, Mr. Leader heard another vehicle
in the parking area. He proceeded up a bank and saw an older model
Ford pickup bearing 23 license plates. Mr. Leader on that day
described the vehicle as green but at trial stated it was bluish-
green. The occupant of the vehicle smiled and waved at Mr. Leader
before driving away. Leader at trial identified defendant as the
occupant of the truck. Upon entering his vehicle, Leader
discovered the driver's side ventilator window was broken and the
main window was rolled down, however nothing was missing from the
truck. Leader drove the fourteen and one-half miles into Big
Timber to report the incident, arriving around 6:00 p.m.
George Ames, Sweet Grass County Undersheriff, observed a
turquoise Ford pickup bearing 23-county license plates proceeding
from the broken window on Leader's vehicle. Howard testified all
the glass had the same refractive index and that the pant pocket
glass and the glass from the window had similar densities while
that from the shirt pockets had a higher density. Howard testified
the probability was high that the glass samples originated from the
same source. Howard further opined that the highly fragmented
glass resulted from a blow from a heavy instrument as contrasted
with "diced1'glass which would result from an accident.
Defendant explained the glass found on his clothing by
describing his practice of rummagingthrough dumpsters sniffing out
valuable refuse. These activities took place in addition to
defendant's customary employment as a logger. Defendant stated
that although he had not worn the clothes in which he was arrested
on a dumpster-foraging expedition since last laundering them, he
expected the glass was heavy enough to remain in the pockets during
washing and require manual removal.
The State offered no evidence of Count I11 of the information
and the District Court dismissed this charge upon defendant's
motion. The jury returned a guilty verdict on the remaining
counts. The District Court sentenced defendant to six years in the
Montana State Prison on the attempted theft charge and six months
on the criminal trespass to vehicles charge. These sentences were
to be served concurrently, but consecutively with defendant's prior
sentences for which he was on parole at the time of this offense.
Defendant was further designated a persistent felony nondangerous
offender .
Defendant raises the following issues on appeal:
1. Did the State prove beyond a reasonable doubt, facts from
which defendant's mental state could be inferred?
2. Did the District Court erroneously permit testimony
regarding other items contained within Leader's vehicle?
3. Did the District Court properly admit evidence of
defendant's other crimes?
4. Did the jury have sufficient evidence upon which to
convict defendant of criminal trespass to vehicles?
5. Was defendant convicted of both attempted theft and
criminal trespass to vehicles in violation of 5 46-11-502, MCA?
6. Did defendant receive effective assistance of counsel?
Defendant was charged with attempted theft because he
"enter[ed] [Leader s] vehicle attempting to remove a pistol from
the front seat of the vehicle . . . Defendant argues that
because the pistol was concealed by Leader's jacket, he could not
have formulated the requisite mental state for attempted theft.
Defendant appears to argue the State must prove beyond a reasonable
doubt that he specifically intended to steal Leader's pistol. This
would be impossible to prove because, as Leader testified, the
pistol was covered and defendant could not see it.
Section 45-4-103(1), MCA, provides that:
A person commits the offense of attempt when, with the
purpose to commit a specific offense, he does any act
toward the commission of such offense. (Emphasis added. )
The requisite mental state for theft is set forth at 5 45-6-
301(1), MCA:
A person commits the offense of theft when he purposely-
or knowinslv obtains or exerts unauthorized control over
property of the owner and:
(a) has the purpose of depriving the owner of the
property ;
(b) purposelv or knowinglv uses, conceals, or abandons
the property in such manner as to deprive the owner
of the property; or
(c) uses, conceals, or abandons the property knowinq
such use, concealment, or abandonment probably will
deprive the owner of the property. (Emphasis
added. )
Knowingly and purposely are both defined by statute:
[A] person acts knowingly with respect to conduct or to
a circumstance described by a statute defining an offense
when he is aware of his conduct or that the circumstance
exists. A person acts knowingly with respect to the
result of conduct described by a statute defining an
offense when he is aware that it is highly probable that
such result will be caused by his conduct. When
knowledge of the existence of a particular fact is an
element of an offense, such knowledge is established if
a person is aware of a high probability of its existence.
Section 45-2-101(33) , MCA.
[A] person acts purposely with respect to a result or to
conduct described by a statute defining an offense if it
is his conscious object to engage in that conduct or to
cause that result. When a particular purpose is an
element of an offense, the element is established
although such purpose is conditional, unless the
condition negatives the harm or evil sought to be
prevented by the law defining the offense.
Section 45-2-101(58), MCA.
Section 45-2-103 (3) , MCA, permits [t] existence of a mental
he
state [to] . . . be inferred from the acts of the accused and the
facts and circumstances connected with the offense." What the
State must prove beyond a reasonable doubt are facts and
circumstances in addition to acts of the defendant from which the
jury may infer defendant's mental state. In criminal prosecutions,
a verbal or written statement by the defendant regarding his or her
mental state is very rare. Furthermore, rarely does a thief know
precisely what item or items he will take when he has not had the
opportunity to see them all. An examination of the evidence in
this case established a sufficient basis for the jury to conclude
that the defendant would have exerted unauthorized control over any
or all the property in the pickup whether he could see it or not
had he not been interrupted.
The jury received instructions on the statutory definition of
attempt, theft, purposely and knowingly in addition to the
following instructions:
INSTRUCTION NO. 10
The difference between theft, a felony, and theft,
a misdemeanor, is that in order for theft to amount to
a felony, the value of the property subject to the theft
exceeds $ 3 0 0 . 0 0 . If the value of the subject property
is $ 3 0 0 . 0 0 or less, then a theft can only be a
misdemeanor.
INSTRUCTION NO. 12
To convict the defendant of the offense of attempt,
the State must prove the following elements:
FIRST: That the defendant performed an act which
constituted a material step toward the commission of the
offense of theft; and
SECOND: That the defendant did so with the purpose
to commit the offense of theft.
If you find from your consideration of all the
evidence that each of these elements has been proved
beyond a reasonable doubt, then you should find the
defendant guilty.
If, on the other hand, you find from your
consideration of all the evidence that any of these
elements has not been proved beyond a reasonable doubt,
then you should find the defendant not guilty.
INSTRUCTION NO. 13
The attempted theft charge against the defendant is
a felony charge, and all twelve of your number must agree
in order to return either a verdict of guilty or not
guilty.
To do so, it is necessary that you consider the
crime of attempted theft, a felony, first and that all
twelve of you find the defendant either guilty or not
guilty of that charge.
In the event you find the defendant guilty of
attempted theft, a felony, you need go no further as you
will have reached a verdict on that count.
In the event you find the defendant not guilty of
attempted theft, a felony, you must then consider the
lesser included offense of attempted theft, a misde-
meanor. You must then find the defendant guilty or not
guilty of this charge. When you have done so you have
reached a verdict.
The jury will bear in mind that the burden is always
upon the prosecution to prove beyond a reasonable doubt
every essential element of any lesser offense which is
necessarily included in the crime charged in the
information.
INSTRUCTION NO. 14
You are instructed that the defendant may not be
convicted of a felony unless you are satisfied from the
evidence that the property alleged to be the subject of
the attempted theft exceeds the sum of $300.00 in value.
INSTRUCTION NO. 15
You are instructed that in the event that you find
the defendant guilty of an attempted theft, but the value
of the item made the .subject of the attempted theft is
less than $300.00, then the defendant can only be found
guilty of misdemeanor attempted theft.
Carl Leader testified that he locked several items of fishing
gear and a pistol concealed by his jacket in his truck before he
started fishing. When he left the vehicle, all windows were rolled
up and intact. Leader neither saw nor heard a vehicle other than
that identified as the defendant's. Leader observed the occupant
of the vehicle whom he later identified as the defendant. Upon
returning to his vehicle, Leader found the ventilator window broken
and the driver's side window rolled down. Although he testified
no items were taken, there is no testimony on how he found those
items when he returned to his truck. He was never questioned on
whether or not the pistol was still covered by the jacket.
Defendant testified that he sat on Interstate 90 for two hours
with a broken throttle bracket before turning around to return to
Billings. He denied being at the McLeod fishing site at all which
is located on the Boulder River roughly sixteen miles south of Big
Timber and Interstate 90. This was his testimony after he had
already heard Leader identify him as the person at the fishing
access, heard that the pistol was covered with a jacket, and heard
the undersheriff's testimony that he saw him on the Boulder River
road that same afternoon, too.
Where the evidence, viewed in a light most favorable to the
State, permits a rational trier of fact to find the essential
elements of a crime, we will not reverse the defendant's
conviction. Given the evidence and instructions presented to the
jury, it could reasonably conclude beyond a reasonable doubt
defendant had the requisite mental state for conviction of felony
attempted theft.
Defendant also asserts the District Court improperly admitted
testimony regarding other items visible in Leader's vehicle when
defendant broke the window. Defendant seems to argue that the
prosecution surprised him by referring to these other articles
defendant may have been attempting to steal. The information need
not have referred to any particular item contained within Leader's
vehicle to properly set forth a charge of attempted theft.
It shall not be a defense to a charge of attempt that
because of a misapprehension of the circumstances it
would have been impossible for the accused to commit the
offense attempted.
Section 45-4-103 (2) , MCA. The original information and the amended
information gave defendant and his attorney notice about the "other
in addition to the pistol Leader's vehicle.
On the afternoon of September 1, 1988,
the defendant, TOMMY JOHNSTONE, did knowingly
or purposely and without authority break the
driver's side vent window of a pickup truck
belonging to Carl Leader and did enter the
vehicle attempting to remove a pistol from the
front seat of the vehicle, all within the
County of Sweet Grass, State of Montana. The
value of the pistol, together with the value
of other property taken in what authorities
believe is a common scheme of theft of
property from vehicles parked at recreation
sites, exceeds $300.
Furthermore, prior to trial while arguing his motion in limine
regarding evidence of other crimes, defense counsel stated to the
court: "And then we are going to be into the question of valuation
about the items alleged to be the object of the attempted theft I
suppose . . . Finally, the defendant had an expert who offered
evidence of the value of the pistol and the holster.
The testimony of Mr. Leader was that he left a spinning rod,
a basket of fishing tackle, his jacket and the pistol which was in
a holster in his vehicle when he went to go fishing. Only the
pistol and holster were admitted as an exhibit in evidence. There
was no objection to this testimony or the exhibit during trial.
Furthermore, the policy behind the statutory requirements of the
information is to afford a defendant due process of law; and not
to restrict the prosecution~sstrategy in presenting its case once
the defendant is fully apprised of the charges against him. See,
State v. Sanderson (1985), 214 Mont. 437, 453-54, 692 P.2d 479,
488.
Defendant did not object to this testimony at trial. Although
we have the discretion to consider on appeal matters not raised
before the District Court in the interests of justice, because we
determine defendant received effective assistance of counsel, we
decline to do so here.
111.
As we noted above, defendant's mental state could be inferred
from his acts, and the surrounding circumstances. A critical
factor was defendant's motivation or lack thereof. Although
evidence of other crimes. is inadmissible to show a criminal
defendant behaved consistently with past criminal conduct '
I [i]t may
. . . be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident." Rule 404 (b), M.R.Evid. Evidence
of defendant's past crimes was probative of his mental state,
intent and preparation.
Other crimes evidence is admissible only when the State
satisfies the four factor test set forth in State v. Just (1979),
184 Mont. 262, 269, 602 P.2d 957, 961:
1. Similarity of crimes or acts;
2. nearness in time; and
3. tendency to establish a common scheme, plan or
system; and
4. the probative value of the evidence is not
substantially outweighed by the prejudice to the
defendant. (Emphasis in original.)
Defendant's crimes meet the Just similarity requirement. Each
involved a vehicle parked at a remote recreation access site. In
each case, either the driver's side window or wing window were
broken to afford access -to the vehicle. In each case, the
perpetrator took small, easily transported items. None of the
vehicles were stolen. Each theft was a felony. Defendant's past
crimes are substantially similar to those for which he was charged
in this action and thus satisfy the first of the Just factors. We
further find that the similarity of defendant's methods satisfy the
third Just factor: a common plan, scheme or system.
The District Court in its discretion may find adequate
proximity in time between the crimes charged and those for which
conviction is sought by considering the number of incidents and the
nearness in time of the last prior crime. State v. Hansen (1980),
187 Mont. 91, 98, 608 P.2d.1083, 1087. Defendant was convicted of
his previous crimes in September and October of 1986. The incident
at issue here took place on September 1, 1988. Defendant's crimes
were interrupted only by his incarceration at Montana State Prison.
This Court has previously held that crimes taking place three years
earlier were not too remote in time under this rule. State v.
Heine (1975), 169 Mont. 25, 28, 544 P.2d 1212, 1214. Defendant's
prior crimes were sufficiently close in time to satisfy the second
Just test.
Lastly, the probative value of the other crimes evidence must
outweigh its prejudicial nature. This Court recognizes that
evidence of other crimes is unquestionably prejudicial. In Just,
we set forth precautionary steps which minimize the prejudice to
the defendant:
(a) Evidence of other crimes may not be received
unless there has been notice to the defendant that such
evidence is to be introduced. The procedures set forth
in section 46-18-503 MCA should serve as guidelines for
the form and content of such notice. Additionally, the
notice to the defendant shall include a statement as to
the purposes for which such evidence is to be admitted.
(b) At the time of the introduction of such
evidence, the trial court shall explain to the jury the
purpose of such evidence and shall admonish it to weigh
the evidence only for such purposes.
(c) In its final charge, the court should instruct
the jury in unequivocal terms that such evidence was
received only for the limited purposes earlier stated and
that the defendant is not being tried and may not be
convicted for any offense except that charged, warning
them that to convict for other offenses may result in
unjust double punishment.
Just, 602 P.2d at 963-64.
In this case, the State notified defendant of its intention
to introduce evidence of his prior crimes. Prior to testimony by
George Ames regarding defendant's prior crimes, the District Court
gave the following instruction:
Ladies and Gentlemen of the jury, evidence is about
to be introduced for the purpose of showing the defendant
committed acts other than the ones for which he is on
trial. You may not consider this evidence to prove that
the defendant is a person of bad character, or that he
has a disposition to commit crimes. You may only
consider this evidence for the limited purposes of
providing a characteristic method, plan or scheme used
in the commission of the offense. You may also consider
this evidence to prove existence of a mental state which
is an element of the crime charged. You may not consider
this evidence for any other purpose that would expose the
defendant to unjust double punishment.
The District Court properly admitted evidence of defendant's other
crimes.
IV.
Defendant maintains there was insufficient evidence to sustain
his conviction for criminal trespass to vehicles. Section 45-6-
202 (1), MCA, states:
A person commits the offense of criminal trespass to
vehicles when he purposely or knowingly and without
authority enters any vehicle or any part thereof.
Mr. Leader testified he left his vehicle locked with the
windows intact. Mr. Leader heard a vehicle he identified as the
defendant's in the parking area and immediately climbed over the
bank to investigate. He saw a man, later identified as the
defendant, driving away. Upon returning to his truck, Leader found
the ventilator window broken and the driver's side window rolled
down. When defendant was arrested, his pants and shirt pockets
contained glass. There were slivers of glass imbedded in gloves
found in defendant's vehicle as well as pieces of glass discovered
on the wrecking bar in the same vehicle. Dr. Howard of the State
Crime Lab testified this glass was tempered auto glass, resulted
from a blow to the glass rather than an accident and was probably
the same glass found in Leader's vehicle.
The jury had sufficient credible evidence upon which to base
defendant's conviction of criminal trespass to vehicles.
Defendant's assertions otherwise are without merit.
Defendant contends he was improperly convicted of criminal
trespass to vehicles and attempted theft in violation of 5 46-11-
502, MCA. That section provides:
When the same transaction may establish the
commission of more than one offense, a person charged
with such conduct may be prosecuted for each such
offense. He may not, however, be convicted of more than
one offense if:
(1) one offense is included in the other;
(2) one offense consists only of a conspiracy or
other form of preparation to commit the other;
(3) inconsistent findings of fact are required to
establish the commission of the offenses;
(4) the offenses differ only in that one is defined
to prohibit a designated kind of conduct generally and
the other to prohibit a specific instance of such
conduct; or
(5) the offense is defined to prohibit a continuing
course of conduct and the defendant's course of conduct
was interrupted, unless the law provides that the
specific periods of such conduct constitute separate
offenses .
Defendant argues that the trespass to the vehicle was committed
merely in preparation for the attempted theft. The United States
Supreme Court considered this issue in Blockburger v. United States
(1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309,
concluding:
[Tlhat where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test
to be applied to determine whether there are two offenses
or only one, is whether each provision requires proof of
a fact which the other does not. (Citations omitted.)
Section 45-6-202(1), MCA, sets forth the elements of criminal
trespass to vehicles:
(1) A person commits the offense of criminal
trespass to vehicles when he purposely or knowingly and
without authority enters any vehicle or any part thereof.
Section 45-6-301(1), MCA, states that:
A person commits the offense of theft when he purposely
or knowingly obtains or exerts unauthorized control over
property of the owner and:
(a) has the purpose of depriving the owner of the
property;
(b) purposely or knowingly uses, conceals, or
abandons the property in such manner as to deprive the
owner of the property; or
(c) uses, conceals, or abandons the property knowing
such use, concealment, or abandonment probably will
deprive the owner of the property.
Clearly, criminal trespass to vehicles involves unauthorized
entry of a vehicle while theft requires unauthorized exertion of
control over another's property. These are distinct and separate
elements. Defendant's conviction does not violate 5 45-11-502,
MCA .
VI .
Defendant maintains he received ineffective assistance of
counsel evidenced by the following:
1. Failure to object to:
a. statements made by the prosecutor regarding the third
count of the amended information;
b. introduction of an empty plastic bag which once
contained glass taken from defendant's pockets;
c. the prosecutor's opening statement wherein he referred
to defendant's prior convictions.
2. Failure to disqualify Judge Robb despite the fact that he
presided over defendant's three prior convictions.
3. Failure to move for change of venue.
4. Failure to call expert witnesses to testify regarding the
glass taken from defendant.'^ pockets.
5. Failure to call witnesses to testify about the condition
of defendant's vehicle.
6. Failure to cross-examine law enforcement officials as to
their reasons for not having Carl Leader identify defendant at the
Stillwater County jail in Columbus.
In State v. Coates (Mont. 1990), 786 P.2d 1182, 1185, 47
St.Rep. 328, 332, we made the following observation concerning
effective assistance of counsel:
In evaluating ineffective assistance of counsel
claims, this Court utilizes a two-part test set forth in
Strickland v. Washinston (1984), 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674. First, counsel's performance must
be deficient. To assess deficient performance, this
Court employs the effective assistancet test
of whether a defendant's counsel acted within the range
of competence demanded of attorneys in criminal cases.
(Citation omitted.) State v. Elliott (1986), 221 Mont.
174, 178, 717 P.2d 572, 575. Second, counsel's deficient
performance must have so prejudiced the defendant as to
deprive the defendant of a fair trial. State v. Leavens
(1986), 222 Mont. 473, 475, 723 P.2d 236, 237. The
standard for evaluating prejudice is whether a reasonable
probability exists that but for counsel's deficient
performance, the trial's outcome would have been
different. Leavens, 723 P.2d at 237. However, in
evaluating a defense counsel's performance, this Court
will not second guess.tria1 tactics and strategy. State
v. LaValley (1983), 203 Mont. 393, 397, 661 P.2d 869,
872.
Allegations 1, 4, 5 and 6 concern trial tactics. We have
repeatedly held that we will not second-guess trial tactics on
appeal. State v. LaValley (1983), 203 Mont. 393, 397, 661 P.2d
869, 872. Defendant's assertion that counsel failed to move for
a change of venue was supported by outside evidence. Introduction
of other evidence is proper when seeking a writ for post-conviction
relief, not on appeal. State v. Elliott (1986), 221 Mont. 174,
178, 717 P.2d 572, 575. As to defendant's contention that his
counsel failed to disqualify Judge Robb, we find no indication in
the record that defendant was prejudiced by this fact.
Affirmed.
We concur: ,'
Chief Justice
Justices
Justice William E. Hunt, Sr., dissenting:
I concur in part and dissent in part and would reverse the
conviction. I concur with the majority's conclusions concerning
the issues three, four, five and six. I dissent to the majority
conclusions on issues one and two.
While I concur with the majority I would like to add the
following to their discussion regarding issue three, admissability
of other crimes evidence; and issue six, ineffective assistance of
counsel.
In the third issue, admissability of other crimes evidence,
the majority fails to actually apply the fourth Just factor, the
weighing of probative value of the evidence versus its prejudicial
effect, to the facts of the case. The majority says that the
procedural safeguards were complied with and, by implication,
indicates that compliance with these safeguards alleviates any
prejudicial effect the other crimes evidence may have on the
defendant. This is just not so. Although the procedural
safeguards do alleviate some of the prejudice to the defendant,
they do not replace the court's ultimate task of weighing the
probative value of the other crimes evidence against its
prejudicial effect.
Even if the prior crimes evidence fits within the first three
Just factors, as it did in this case, thereby I1giv[ing] great
probative weight to the evidence of prior acts,I the final weighing
'
must occur. State v. Eiler, 234 Mont. 38, 51, 762 P.2d 210, 218
(1988). I do agree that, in light of the significant evidence
linking defendant with the charge of criminal trespass to a vehicle
and the compliance with the procedural factors and the first three
Just factors, the probative value exceeds the prejudicial effect
of the introduction of the other crimes evidence.
Discussing the sixth issue, ineffective assistance of counsel,
the majority concludes that because the alleged errors of counsel
were merely trial tactics, it cannot be said that counsel was
ineffective. While I agree with the conclusion that counsel was
not ineffective, I do so for different reasons than those used by
the majority. Our review of defendant's allegations must be
confined to the record. "In some cases, however [sic] the record
on appeal sheds no light on why counsel acted or failed to act in
the manner challenged.'' People v. Pope, 590 P.2d 859 (Cal. 1979).
Without an explanation in the record for counsel's actions or
llunless there simply could be no satisfactory explanationttit is
difficult to objectively decide whether counsel's actions or
inactions went beyond tactical decision. People, 590 P.2d at 867.
Many of the jurisdictions that have recently found ineffectiveness
under the Strickland standards have done so on post-conviction or
habeas corpus. See generally Kimrnelman v. Morrison, 477 U.S. 365,
91 L.Ed.2d 305, 106 S.Ct. 2574 (1986); Sullivan v. Fairman, 819
F.2d 1382 (7th Cir. 1987) ; and Williams v. State, 515 So.2d 1042
(F1a.Dist.Ct.A~~. 1987). In each case, an evidentiary hearing was
held to explain inconsistencies in the record.
Turning to the first two issues, that of the State proving
the requisite mental state for attempt beyond a reasonable doubt
and the State's use of other property evidence to support this
mental state, I dissent to the conclusions of the majority. The
principle of criminal law is that the State has the burden of
"establish[ing] the necessary criminal intent beyond a reasonable
doubt.'' State v. Watson, 211 Mont. 401, 415, 686 P.2d 879, 886
(1984); See 5 46-16-601, MCA; State v. Kramp, 200 Mont. 383, 651
P.2d 614 (1982); In re Winship, 397 U.S. 358, 25 L.Ed.2d 368, 90
S.Ct. 1068 (1970); U.S.Const. Amend. XIV. Although I agree with
the majority that this burden can be met through inference,
nonetheless the standard still exists. In its case-in-chief, the
State fails to meet this burden in proving that the defendant
committed an attempted theft.
The State failed to meet its burden in two ways. First, the
State failed to prove that defendant had purposely and knowingly
planned to steal an object of which he was not aware. Secondly,
the State then used inadmissable evidence of other property visible
in the vehicle to support the defendant's mental state.
A person cannot commit the offense of attempt if, looking at
the facts as they were understood by that person at the time he
acted, the crime did not appear possible. People v. Meyer, 215
Cal.Rptr. 352 (1985). See also People v. Leichtweis, 399 N.Y.S.2d
439 (1977); State v. Niehuser, 533 P.2d 834 (0re.App. 1975). In
this case, the information charged defendant with attempt to steal
a particular piece of property, namely, the pistol. I agree with
the majority's contention that the information need not have
referred to any particular item contained within Leader's truck in
order to properly set forth a charge of attempted theft, but since
it did, the State is under obligation to prove beyond a reasonable
doubt that defendant was attempting to steal the pistol.
Defendant l'acted'l when he broke the ventilator window of
Leader's truck. At that time, the pistol was hidden from view by
a jacket. Because defendant did not know, at the time he acted,
that the pistol existed, it was impossible for defendant to
purposely or knowingly plan to steal the pistol.
To overcome this flaw, the State presented evidence during
trial of other property, primarily fishing gear, that was visible
within the truck. As indicated during the following discussion
that occurred between the State and defense counsel during jury
instructions, the State had planned, throughout its investigation,
to rely on this other property evidence to prove defendant
purposely or knowingly planned to steal the pistol. The discussion
occurred as follows:
DEFENSE COUNSEL: You never said anything up until today
about including fishing poles and fishing tackle and that
kind of stuff in the truck as well.
STATE COUNSEL: I think I told you there was some other
stuff there.
DEFENSE COUNSEL: I don't recall that. The only thing
we have ever talked about that I ever had in mind was
just the gun, which was on the front seat, or whatever.
STATE COUNSEL: But there was other stuff in the car that
the jury could find he was likely to take or be inclined
to take. So I think the property, as the generic term,
is more apropos.
Defendant was never given notice prior to trial of the
existence of this other property evidence. The State's failure to
notify defendant of its intent to use this other property evidence
at trial made it impossible for defendant to prepare any rebuttal,
resulting in severe prejudice to defendant.
At trial, defendant failed to object to the use of this other
property evidence. However, this Court has the discretion to
consider the use of this evidence in the interests of justice. As
stated in our codified version of the plain error doctrine, 5 46-
20-701(2), MCA, a trial error may be considered on appeal if the
introduction of the questioned evidence affected a constitutional
right, was prejudicial to the defendant's guilt, and was not known
and could not have been ascertained with due diligence by defendant
or his attorney. The use of this other property evidence complies
with these factors.
When viewing the evidence in a light most favorable to the
State, there is insufficient evidence to establish the defendant's
requisite mental state beyond a reasonable doubt for attempted
theft of a pistol. I would reverse the ~istrictCourt.
/
Justice
I c o n c u r w i t h the f o r e g o i n g d i s s e n t .
4 . e~ Justice