NO. 89-314
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JAMES D. COATES,
Defendant and Appellant.
APPEAL FROM: ~istrictCourt of the Fourth ~udicial~istrict,
In and for the County of Missoula,
The Honorable Douglas arki in, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
art in John Elison, ~ a r d i n ,Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Jennifer Anders, Asst. Atty. General, Helena
Robert L. Deschamps, 111; Betty wing, Deputy, iss sou la,
Montana
- - - - -
Submitted on ~riefs: Dec. 14, 1989
Decided: February 14, 1990
Justice John Conway Harrison delivered the Opinion of the Court.
James Coates appeals an order of the Fourth Judicial District,
Missoula County, Montana, denying Mr. Coatesl petition for post-
conviction relief. We affirm.
Appellant raises three issues for review:
1. Was appellant denied an evidentiary hearing on his
petition for post-conviction relief?
2. Was the hearing the appellant received a full and fair
hearing?
3. id the ~istrictCourt err in finding that appellant had
not been denied effective assistance of counsel and thus err in
denying the petition for post-conviction relief?
Following a jury trial, appellant was convicted of four counts
of felony theft on May 1, 1987. At trial, Bernard J. Goldman
represented appellant. Mr. Goldman also handled Mr. Coatesl appeal
to this Court.
On September 2, 1988, pursuant to 5 46-21-201, MCA,
appellantlsnew counsel filed a petition for post-conviction relief
that alleged appellant was denied effective assistance of counsel
at trial. Specifically, appellant cited eight alleged errors
committed by Mr. Goldman. The parties filed briefs and the
District Court held a hearing on December 12, 1988. During the
hearing, appellant presented a witness on his behalf and testified
2
himself. The State called as a witness the deputy county attorney
who prosecuted appellant.
At the end of the hearing, the District Judge added to the
record his observations regarding Mr. Goldman's conduct during
appellant's trial. Neither the appellant nor the State objected
to the Judge's comments and both counsel asked the Judge questions.
On January 13, 1989, the District Court issued findings of fact and
conclusions of law denying appellant's request for post-conviction
relief. The District Court found that Mr. Goldman's alleged errors
were in the main tactical decisions, that another lawyer could not
have obtained a better result, and that Mr. Goldman had not
ineffectively represented appellant.
Appellant contends that the District Court erred in not
granting appellant an evidentiary hearing in which to present proof
regarding his allegations of ineffective assistance of counsel.
Appellant's argument belies the record. Section 46-21-201, MCA,
details the procedure relating to a petition for post-conviction
relief and provides in part as follows:
46-21-201. Proceedings on the petition.
(1) Unless the petition and the files and
records of the case conclusively show that the
petitioner is entitled to no relief, the court
shall cause notice thereof to be served upon
the county attorney in the county in which the
conviction took place and the attorney general
and order them to file a responsive pleading
to the petition. Following its review of the
responsive pleading, the court may dismiss the
petition as a matter of law for failure to
state a claim for relief or it may grant a
prompt hearing thereon, determine the issue,
and make findings of fact and conclusions with
respect thereto.
(2) The court may receive proof by affidavits,
depositions, oral testimony, or other
evidence. In its discretion the court may
order the petitioner brought before the court
for the hearing.
The District Court granted appellant a hearing as outlined in
5 46-21-201(1), MCA, and received evidence in the form of oral
testimony and exhibits. The statute plainly contemplates that the
hearing on a post-conviction petition will be to determine the
issues raised in the petition. Nothing in the record supports
appellant's argument that the hearing held was not such an
evidentiary hearing. We reject appellant's argument.
Appellant alleges that the District Court failed to give him
a proper hearing because it ignored the rules of civil procedure
and it made improper comments during the hearing. We disagree.
A petition for post-conviction relief is civil in nature
rather than criminal. Coleman v. State (Mont. 1981), 633 P.2d 624,
627, 38 St.Rep. 1352, 1354. However, "district courts are not
strictly bound by all the rules of civil proceduregg in post-
conviction relief hearings. State v. Perry (Mont. 1988), 758 P.2d
268, 276, 45 St. Rep. 1192, 1201. As appellant neither cites any
specific rules that the District Court violated nor cites any
authority in support of his argument, we reject his contention.
We hold that the District Court followed the procedures established
by 5 46-21-201, MCA.
Additionally, appellant argues that he did not receive a fair
hearing because the District Judge made prejudicial remarks at the
end of the hearing that indicated bias on the part of the Judge.
The Judge's comments related to his observations of Mr. Goldman's
conduct of appellant's trial. The critical inquiry is whether the
Judge's remarks deprived appellant of a full and fair hearing.
Perry, 758 P.2d at 275. We do not find that his remarks reflect
bias and prevented appellant from receiving a full and fair
hearing.
Appellant frames his bias argument in generalizations. His
argument appears to be that because the Judge articulated his
observations regarding Mr. Goldman's trial conduct that the Judge
was biased. In other words that the Judge's remarks indicate his
unwillingness or inability to impartially consider appellant's
evidence that Mr. Goldman ineffectively represented him. However,
the mere fact that the Judge articulated his observations does not,
without more, constitute bias and appellant has not buttressed his
argument with anything specific.
Petitions for post-conviction relief are directed to either
this Court or to the presiding district court judge. The statute
5
specifies the presiding district judge precisely because that judge
is familiar with the underlying criminal case. By directing the
post-conviction relief petition to the presiding district judge,
the judge who is most familiar with the conduct of the trial has
the opportunity to correct any errors that occurred during the
trial. See Coleman, 633 P.2d at 626-628. The fact that a judge
is familiar with how counsel conducted a trial does not equal bias
and in post-conviction relief hearings familiarity is considered
a benefit. In particular, the presiding judge will have observed
an attorney's handling of a trial in regard to general behavior,
thoroughness of preparation, and effectiveness of case
presentation.
In the instant case, the Judge's remarks did not reflect any
unwillingness to consider appellant's evidence regarding
ineffective assistance of counsel. These remarks came at the end
of the hearing after all evidence had been presented. The
appellant does not allege that the Judge made any improper remarks
as the parties presented their case nor does appellant allege that
the Judge improperly excluded any evidence appellant offered. As
well, appellant does not argue that the remarks indicated personal
bias toward either Mr. Goldman or appellant. Additionally, the
Judge's observations mirrored the testimony of the prosecuting
attorney at appellant's trial.
In contrast to the case at bar stands State v. Musgrove
6
(1980), 187 Mont. 549, 610 P.2d 710, where we found that the trial
judge's comments indicated bias, or an unwillingness to consider
evidence. In Musqrove, the defendant had failed to appear at trial
on the day of closing arguments. The trial court ordered the
insurance company's $50,000 bond forfeited. Shortly thereafter the
defendant returned voluntarily and was convicted and sentenced.
The insurance company moved the trial court for an order
discharging the bond forfeiture on the grounds that the defendant's
mental condition excused his failure to appear at trial. Although
the trial court, after a hearing, did discharge $25,000 of the bond
forfeiture, the insurance company appealed alleging in part that
the trial judge had improperly excluded evidence of the defendant's
mental condition. We found that the trial judge had improperly
excluded evidence of the defendant's mental condition as well as
improperly commented on the defendant's state of mind with the
following remarks:
THE COURT: Well, Mr. Delaney, there isn't any
doubt in my mind as the judge who presided on
the trial that at that particular time Mr.
Musgrove knew the jury was going to find him
guilty because the testimony was so obvious in
that direction and the Instructions settled by
the Court was [sic] so obvious in that
direction. I know that he knew this was going
to happen and I know that because of that he
failed to show up the next day. There is no
doubt in my mind that he was upset. I think
I would have been.
Musqrove, 610 P.2d at 712. We found that those statements
indicated
"bias which resulted in effectively denying the insurance company
an opportunity to establish its case of excuse in order to
exonerate the bond forfeiture." Musqrove, 610 P.2d at 712. We
also noted that the trial judge's findings did not address the
insurance company's contentions and evidence regarding excuse.
Musqrove, 610 P.2d at 713.
As mentioned above, we do not discern a similar bias or
unwillingness to consider appellant's evidence in the instant case.
The District Judge scheduled a hearing which he is not required to
do if he finds the petition meritless. Section 46-21-201(1), MCA.
Each party thoroughly briefed the issues, and each party presented
evidence at the hearing. The Judge stated that he had considered
all the testimony, evidence and briefs in making his decision and
he wrote detailed findings of fact and conclusions of law that
directly dealt with appellant's contentions. Moreover, we cannot
say that the Judge's decision is not supported by substantial
evidence. We hold that the Judge's remarks did not reflect bias
and did not deprive appellant of a full and fair hearing.
The standard of review for denial of post-conviction relief
is whether substantial evidence supports the findings and
conclusions of the district court. Yother v. State (1979), 182
Mont. 351, 355, 597 P.2d 79, 82. Appellant argues that the
District Court erred in failing to find that Mr. Goldman was an
ineffective counsel. We disagree.
In evaluating ineffective assistance of counsel claims, this
Court utilizes a two-part test set forth in Strickland v.
Washington (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 lg'reasonably
affective assistance' test of whether a defendant's counsel acted
within the range of competence demanded of attorneys in criminal
cases. (Citation omitted.) 'I 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
trial tactics and strategy. State v. LaValley (1983), 203 Mont.
393, 397, 661 P.2d 869, 872.
In his petition for post-conviction relief, appellant alleged
the following eight specific errors by Mr. Goldman:
1. Failure to object to the use of
9
statements made by defendant prior to reading
defendant his Miranda warnings.
2. Opening the door to testimony of a prior
conviction.
3. Failure to suppress evidence seized from
the back of defendant's vehicle by challenging
probable cause of the search warrant.
4. Failure to obtain witnesses necessary for
his defense.
5. Improper preparation for trial.
6. Failure to properly question witnesses.
7. Failure to appeal certain issues.
8. Mr. Goldman's drug abuse adversely
affecting his ability to represent the
defendant.
As mentioned, all of these issues were thoroughly briefed by both
parties prior to the hearing.
Regarding allegations 1, 2, 3, and 7, the District Court's
findings indicate that it found Mr. Goldman's decisions on these
issues to be tactical. The District Court found and upon review
we concur, that defendant likely would not have prevailed in trying
to exclude the defendant's statements or in suppressing the
evidence seized, either at the pretrial proceeding or on appeal.
The District Court noted that Mr. Goldman's primary concern related
to the identity of the informer and that he pressed that issue with
vigor during pretrial proceedings and on appeal.
As well, the District Court concluded that it was trial
tactics that led Mr. Goldman to ask appellant on direct examination
whether he had to have a background check to have a business
license. On cross-examination, because the defense had "opened the
door," the prosecuting attorney was able to elicit from appellant
the fact of his prior theft conviction. However, as the
prosecuting attorney testified, had she not caught Mr. Goldman's
brief reference to appellant's background and followed up, Mr.
Goldman would have had an excellent foundation for a closing
argument. The evidence supports the conclusion that Mr. Goldman's
decisions on allegations 1, 2, 3, and 7 were trial tactics and we
will not second guess trial tactics.
As to allegation number 4, failure to obtain two necessary
witnesses, appellant does not demonstrate exactly how the absence
of these witnesses prejudiced him. The record discloses that the
County subpoenaed the two witnesses to no avail. Mr. Goldman
apparently knew that these witnesses could not be located so any
attempt on his part to subpoena them would have been futile.
Further, appellant's argument does not specify exactly what
testimony these witnesses would have given that would have assisted
the defense. Without a showing of prejudice, appellant's argument
fails. State v. Henricks (1983), 206 Mont. 469, 475-476, 672 P.2d
20, 24.
Regarding allegations 5 and 6, the record contains substantial
evidence that, on the whole, Mr. Goldman was prepared for trial and
11
properly questioned witnesses. The prosecuting attorney testified
that Mr. Goldman aggressively questioned witnesses and effectively
brought out the defects in the State's case. She testified that
his questions reflected his familiarity with the facts of the case
and that his questioning elicited the information that he needed
to establish the defense. Although appellant argues that Mr.
Goldman should have asked certain questions, appellant again fails
to establish exactly how those questions would have materially
assisted his defense.
Finally, as to allegation 8, the record discloses no specific
evidence that Mr. Goldman's cocaine abuse, which has become public
knowledge, rendered his conduct of appellant's trial incompetent.
Most of appellant's argument on this issue relates back to the
alleged errors already discussed. If those allegations had been
found to reflect ineffective assistance of counsel, then one might
infer that cocaine abuse may have been a contributing factor.
However, absent any specific errors or conduct identified in the
trial that affected the trial's outcome, Mr. Goldman's cocaine
abuse is irrelevant to the issue of ineffective assistance of
counsel.
In summary, substantial evidence in the record supports the
District Court's conclusion that another lawyer would not have
obtained a more favorable result for appellant considering the
amount of evidence the State presented against appellant.
Appellant has failed to establish that Mr. Goldman's performance
was deficient or that any of his alleged errors prejudiced the
outcome of the trial.
Affirmed.
We concur:
Justice John C. Sheehy, dissenting:
It is provided in Rule 605, Montana Rules of Evidence:
The judge presiding at the trial may not testify in that
trial as a witness. No obiection need be made in order
to preserve the point. (Emphasis added.)
The statements made by the district judge at the hearing for
post conviction relief were statements of fact, although he
was an unsworn witness. Moreover, the district judge founded his
findinqs of fact based on his own observations made at the hearing.
This is what occurred in the post-conviction hearing, when the
matter was before the ~istrictCourt:
THE COURT: Do you have any other witnesses to call?
MS. WING: No witnesses.
THE COURT: Rebuttal witnesses?
MR. ELISON: None.
THE COURT: Counsel, let me make some observations for
the record.
Obviously I am not an expert or even an amateur on how
a person acts when they are under the influence of
cocaine. However, I did make these observations of
Bernie Goldman when he was here during the trial.
I didn't see that he had any shakes or disruptive or
mumbling speech. He had good eye contact. I didn't see
any mood swings in the sense that one minute he would be
very angry, the next he would be euphoric. When the
prosecution witnesses were on, he was his usual abrasive
self, as he has been for many years, but that Is how he
does his cases, and generally with some good success and
sometimes not.
I noticed many discussions between the Defendant and Mr.
Goldman during the trial, but I should point out that
it's been my experience with Bernie Goldman when he goes
to trial, he runs his own show and that it seems to be
his policy that he does not allow his clients to run the
trial. He kind of decides how he is going to run the
case and then he proceeds from there.
It s also been my experience with Mr. Goldman, and seemed
to be his practice here, is that he will--he is quite
clever about his trial tactics and his tactics here were
consistent with that, for example, when he attempted to
just very briefly passing mention the fact that the
Defendant had to be--had a background check or get
checked in order to have a license. I am sure he would
have referred to this in his closing argument and, of
course, the State seized on that as opening some
information in regards to the Defendant's background.
If the State had not been alert, that would have slipped
on through and the jury would have been left with the
impression brought out by Goldman's final argument that
the Defendant was a model citizen as far as his business
license is concerned.
It seemed to me the gist of Goldman's case that he was
primarily concerned with the informer and he pressed that
hard at all the pretrial proceedings and obviously he
pressed it on appeal. And I got the impression that he
knew the case was--and I will use it in quotes, Ifin
t r ~ u b l e , ~ ~ far as the search was concerned and the
as
statements that may have been made by the Defendant.
And in conclusion, Counsel, I am of the opinion that
another result would not have occurred if he would have
had another lawyer. I think that another lawyer would
not have been able to obtain him a more favorable result.
It is possible, but I don't think so under the amount of
evidence that the State marshalled against the Defendant
in this case.
Those are just, for the record, those are the
observations that I made while we had the trial.
I have examined the briefs that have been submitted in
the case as well as the evidence presented here at the
trial, and I do not feel that Mr. Goldman was an
ineffective counsel. His decisions in many cases were
tactical decisions that we may or may not agree with.
I think he took the approach that to--the approach being
not to spend a lot of time with issues that were obvious
losers and went ahead into--to press on the one issue
where he thought that he knew if he could require--get
me to require the State to identify the informer, that
the State's case would collapse completely. And that
seemed to be the gist of his case at the beginning and
then during the trial, to attack the credibility of the
State's witnesses during the trial itself.
My conclusion, Counsel, is that your motion should be
denied and it is so ordered.
MS. WING: Your Honor, might I inquire, you have made
some observations about Mr. Goldman and I wonder if you
would mind putting something on the record of your years
of experience with him or how long he has practiced in
front of you.
THE COURT: I have--as County Attorney I have had several
cases against him and his father and eight years now of
trials involving Mr. Goldman. And some of which he has
been successful, but I didn't see anything different in
his behavior and actions in this trial from other ones.
I don't always agree with the way that Mr. Goldman tries
his cases, but you can't argue with success and he has
in my court several very good successes, but this was not
one of them.
MR. ELISON: Regarding the Supreme Court opinion, how
long do I have to get that to you? Tomorrow? Or is that
not going to bear on the case at this point?
THE COURT: Well, I have their opinion.
MR. ELISON: Oh, okay--no, I mean the one in which Bernie
was disbarred.
THE COURT: Oh. I have a sense of what that is and I
testified--no, it was not this case. I was aware of some
of the allegations against him and so I have a pretty
good idea what the circumstances were. It's largely of
his cocaine use, but like I said, Counsel, I have to
admit that my expertise on cocaine users and how they
behave in court is nonexistent, but he didn't seem--he
didn't seem to be out of the norm for Bernie. And there
were not occasions where I would talk to him and he would
be like--would be spaced out or not understanding what
I am saying, you know. And so he seemed to be tracking
well at the trial and all I can say is he made some
tactical decisions and some worked and some didn't work.
MR. ELISON: I suppose I could have used an expert
witness on what an addict on cocaine would act like?
THE COURT: Well, tell me--
MR. ELISON: I don't think there would be any
particularly noticeable thing. It's going to be--it is
going to be mostly--it Is a speed, so it Is an upper and
would make him more--it actually might make him more
productive on occasions, but it is also kind of a mind
scrambler and so he will forget things. He will think
that he is doing something that he really, really isn't
successfully doing. He will forget what has happened a
day or two before. And probably when he leaves, he won't
get much sleep and it will throw his thinking off, but
I suppose if there are no tactical errors or errors in
the transcript that you can see--
THE COURT: Well, I wouldn't say that he--well, you know
that thing about the--Mr. Coates' background check,
that's not an error. That's a classic Bernie Goldman,
I hate to say, maneuver, but it is a maneuver and he
almost slipped that thing through and he just ran it
through very quickly and had the State not picked up on
that, he would have had an outstanding base for a closing
argument. That's a classic Bernie Goldman maneuver. So
I am not going to say it was wrong to do that. He might
have gotten it by, if the County Attorney would not have
been attentive at that point it would have been in. And
that's how Bernie tries his cases and he is frequently
successful.
MR. ELISON: So, in other words, it is not a mistake?
THE COURT: I don't think it was a mistake. I think it
was purposeful on Bernie's part, quite frankly, because
I have seen him do things before. So that's my ruling,
Counsel.
Would you make an appropriate order reflecting my ruling?
MS. WING: I will.
Because of Rule 605, M.R.Evid., the District Court was
incompetent as a witness to testify as to his observations, sworn
or unsworn, of the activities of counsel for the defendant during
the District Court trial. If the District Court intended to be a
witness, it should have been proper procedure to call in another
district judge in order to hear the petition for post-conviction
relief.
The point that the District Court made observations of fact
as a witness is buttressed by the findings of fact made by the same
judge which appear to be completely founded on the court's own
observations. Witness:
Findinqs of Fact
1. The court observed no signs of Mr. Goldman being under the
influence of drugs. There were no shakes or disruptive or
mumbling speech. He had good eye contact. There were no mood
swings in the sense that one minute he would be very angry,
the next he would be euphoric. When the prosecution witnesses
were testifying, he was his usual abrasive self as he has been
for many years. His style has generally had some good success
and sometimes not.
2. Mr. Goldman held many discussions with the Defendant
during the trial. It has been the Court's experience,
however, that when Bernie Goldman goes to trial, it seems to
be his policy that he controls the case and does not allow his
clients to run the trial.
3. It has been the court's experience that it is Mr.
Goldman's practice to be clever with his trial tactics, and
his tactics in this case were consistent. For example, he
attempted to very briefly in passing mention the fact that the
Defendant had to have a background check in order to obtain
a business license. He surely would have referred to this in
his closing argument. If the State had not been alert, the
information would have slipped on through and the jury would
have been left with the impression that the Defendant was a
model citizen. The State, however, seized on that as opening
the testimony for information in regards to the Defendant's
background.
The duty of a judge to conduct an impartial trial is
illustrated in the following paragraph:
The trial judge must strive to have the trial conducted
in an atmosphere of impartiality. His conduct in trying
a case must be fair to both sides, and he should refrain
from remarks that may injure a litigant. He should not
engage in conduct which amounts to acting as counsel for
one of the parties. Except where authorized by statute,
it is improper for a judge to assume the role of the
witness in a case being tried before him, and doing so
constitutes reversible error. How great a departure from
fairness amounts to reversible error is determined by the
answer to the fundamental inquiry whether or not was done
was prejudicial to the appellant or plaintiff in error.
75 Am.Jur.2d 191, Trial, 5 87.
Rule 605 of the Montana Rules of Evidence is based upon its
federal counterpart. Moore points out that the rule provides an
llautomatic
objection" because to require an actual objection would
confront the opponent with a choice of not objecting with the
result of allowing the testimony, and objecting, with the probable
result of excluding the testimony, but at the price of continuing
the trial before a judge likely to feel that his integrity had been
attacked by the objector. 10 Moore's Federal Practice, (2d ed.
1976), 605.01[3].
Two of the dangers pointed out by Moore in having the judge
testify at the trial over which he is presiding are (1) who will
rule on objections, claims of privilege and other matters normally
under judicial control, and (2) in a bench trial the judge who
testifies will have to consider his own testimony in the light of
other testimony in the case.
In adopting findings of fact in the case at bar, the district
judge weighed his own testimony as observations against the
evidence adduced by the defendant and based his findings of fact
upon his own observations, thus rejecting the evidence and
testimony of the defendant.
Moreover, both the District Court and the majority state as
a fact in their Opinion that a new trial for the defendant would
not end in a different result. Aside from it being sheer
speculation, the probable future result of a fair trial should have
no weight in considering whether a defendant receive a fair trial
before an impartial tribunal in the former proceedings. The only
question we should decide upon a petition for post-conviction
relief is whether the defendant's sentence is subject to collateral
attack upon any ground of alleged error available under a writ of
habeas corpus. Section 46-21-101, MCA. Those grounds do not
include the possibility that in a new trial the defendant will be
reconvicted.
For the reasons foregoing, I would remand for a new hearing
on post-conviction relief before another district judge. Nothing
would then preclude the present district judge from appearing as
a witness to present his observations, which of course would be
pertinent to the issues in this case.
(A
?h i, ~
Justice
~ /