State v. Denny

NO. 92-517
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993

STATE OF MONTANA,
Plaintiff and Respondent,
-v-
ROSIE DENNY,
Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable John Warner, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
William Hooks, Office of the Appellate Defender,
Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Jennifer
Anders, Assistant Attorney General, Helena, Montana;
David G. Rice, Hill County Attorney, Havre, Montana

Submitted on Briefs: September 2, 1993
Decided: December 6, 1993
Filed:
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal from a Twelfth Judicial District Court, Hill
County, judgment on a motion for a new trial, which was filed after
a jury found Rosie Denny guilty of conspiracy to sell dangerous
drugs. We affirm.
We restate the issues on appeal:
1. Was Ms. Denny denied effective assistance of counsel?

2. Did the District Court abuse its discretion in denying
Denny's motion for a new trial upon the grounds of ineffective
assistance of counsel?
On November 14, 1991, Patrolman George Tate and Blaine County
Deputy Sheriff William Brewer (Brewer) traveled to Medicine Hat,
Alberta, Canada, to meet with Ramona Daychild (Daychild). Both
officers worked as undercover officers for the Tri-Agency Drug Task
Ferce. Their pu~rpmein meeting Daychild was to arrange for the
purchase of cocaine. The two traveled with Daychild to Havre to
meet with Lester Azure (Azure) who was supposed to make a
connection*' with a drug supplier for the purchase. When they went
to Havre, Brewer and Daychild met with Azure at the Corner Bar.
The two returned to the Duck Inn, where the officers were staying,
returned Daychild to the tavern and then went to the Tri-Agency
Task Force office to prepare for the purchase of the drugs. At
that time, Brewer was fitted with a "body wire," which concealed a
transmitter attached to his person, which monitored conversations
he had with suspects.
When Daychild and Brewer first met with Azure, they were told
2
that Azure's connection did not get off work until 4:30. At 5:00
that evening, Brewer and Daychild were joined by Azure and Terry
Ceynar (Ceynar) at the Buttrey's store. Brewer was told that
Ceynar was going to find his connection so that Brewer could
purchase cocaine. The group then left Buttrey's and went to the
Atrium Mall, with Ceynar as a passenger in Brewer's car.
Ceynar departed the car and went into the Atrium Mall. He
emerged a few minutes later with a woman and they then proceeded to
her car. The woman with Ceynar was Rosie Denny (Denny), whom
Brewer recognized and Ceynar later referred to as "Rosie...the gal
I got it from." Ceynar was in Denny's car for a few moments, then
returned to Brewer's car, and told Brewer that his connection had
eight or nine grams of cocaine. Brewer gave him $800 and Ceynar
returned to Denny's car. A few minutes later, Ceynar returned to
Brewer's car again, this time handing Brewer a small plastic bag
containing a number of small square bindles. They then left the
parking lot and drove toward Ceynar's house.
Brewer testified that as soon as he dropped Ceynar off, he met
with the other undercover police officers who were working on the
case and had been surveiling him. Brewer gave Officer Reichelt the
plastic bag with the bindles, which Reichelt promptly marked as
evidence. Officer Reichelt sent the bindles and plastic bag to the
State Crime Lab but no fingerprints matched Denny's or Ceynar's
fingerprints. An information was filed on March 9, 1992 and a
warrant of arrest was served on March 30, 1992. Denny's case came
to trial on July 23, 1992 and a jury found her guilty on July 24,
 We review a denial of a motion for a new trial under 5 46-16-
702, MCA, which states that "[f]ollowing a verdict or finding of
guilty, the court may grant the defendant a new trial if required
in the interest of justi~e.~'"The granting and denying of a new
trial rests within the sound discretion of the district court and
this Court will not overturn that decision unless the district
court abuses its discretion." State v. Haskins (1992), 255 Mont.
202, 210-211, 841 P.2d 542, 547. (Citation omitted.)
Denny argues that her trial counsel was ineffective because he
failed to investigate and interview witnesses in her case.
Strickland v. Washington (1984)' 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed. 2d 674, provides the two-part test for determining whether
counsel was ineffective:
First, the defendant must show that counsel's performance
was deficient. This req!!ires s h o ~ i q
that caunsel made
errors so serious that counsel was not functioning as the
wcounsel* guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This
requires showing that counsel's errors were so serious as
to deprive the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes both
showings, it cannot be said that the conviction or death
sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
Strickland, 466 U.S. at 687. See also; State v. Hurlbert (1988),
232 Mont. 115, 756 P.2d 1110: State v. Coates (1990), 241 Mont.

The first prong of the Strickland test considers whether
counselts performance was deficient. "The proper measure of
attorney performance remains simply reasonableness under prevailing
professional norms." Lawrence v. Armontrout (8th Cir. 1999), 900

F.2d 127, 129. (Citation omitted.)
In the instant case, Denny's counsel used a defense of
innocence. Her position was that she was at the Atrium Mall for
one purpose only - to purchase a washing machine. Thus, the
critical issue in the case was her credibility. Counsel thought
that Denny would not make a good witness and that "[slhe would have
needed help" yet he did not interview possible witnesses who could
have supported her testimony. Denny's brother met her at the
Atrium Mall to help her load the washing machine. There were also
two adolescents who helped her brother move the washing machine.
The employee who sold the washing machine to her was another
possible witness as well as her employer who paid her on that day
so she could purchase the washing machine. Denny's counsel said he
never thought of calling the employer but he did think of calling
the brother, the two young people with him and the man who sold her
the washing machine. Trial counsel testified that he had the
impression Denny did not want her brother to testify because her
brother did not wish to be involved. He thought the testimony of
the salesperson at the Third-Hand Store would be irrelevant.
It is difficult to determine whether the salesperson or any of
the other potential witnesses would testify as to irrelevant
matters when they were not even interviewed. It is not difficult,
however, to determine whether counsel should have at least
interviewed the witnesses before rejecting the possibility of using
their testimony at trial.
 We adopt the reasoning of the Fifth Circuit in this regard.
To determine the reasonableness of [counsel's]
conduct in this situation, we must take into account two
different, and potentially antithetical, considerations.
First is the "strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance." Because of the danger of over-zealous post-
trial inquiry into an attorney's decisions made during
the litigation, "a particular decision not to investigate
must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to
counsel's judgments."
A substantial body of Fifth Circuit case law
insists, however, "that 'effective counsel conduct a
reasonable amount of pretrial investigation.'" Although
the scope of the required investigation is a function of
the "number of issues in the case, the relative
complexity of those issues, the strength of the
government's case and the overall strategy of trial
counsel,I' this circuit has recognized that, at a minimum,
counsel has the duty to interview wotential witnesses and
to make an inde~endentinvestiaation of the facts and
circumstances of the case. This duty is reflected in the
American Bar Association Standards for Criminal Justice,
a proper guide for determining what is reasonable under
the circumstances. These specific obligations inherent
in counsel's duty to investigate must temper the amount
of deference we give [counsel's] on-the-spot actions in
evaluating his perfortnance. (Emphasis a&&ed.)

Nealy v Cabana (5th Cir. 1985), 764 F.2d 1173, 1177-1178
.
The opinion that counsel, in providing effective assistance of
counsel, must at least interview potential witnesses, is echoed in
other circuit courts. For example, the D.C. Circuit has stated:
Counsel's failure to interview the proposed
witnesses is troublesome. Had trial counsel interviewed
the witnesses, his decision not to call them might be
protected from an ineffective assistance claim as a
tactical litigation decision. The com~letefailure to
investiaate potentiall~corroboratinqwitnesses.however,
can hardly be considered a tactical decision. As the
Supreme Court noted in Strickland, "IClounsel has a duty
to-make reasonable investigation or to-make a reasonable
decision that makes particular investigations
unnecessary." 104 S. Ct. at 2066, (Emphasis added.)
United States v Debango (D.C. Cir. 1986), 780 F.2d 81, 85.
.
6
 It is apparent that counsel in the instant action should have
interviewed the potential witnesses to at least determine what they
had to report. They might possibly have seen or overheard
something which was relevant to the case. Their testimony nay have
supported Denny's defense. Trial counsel had a duty to investigate
and interview witnesses who may have possessed knowledge about
Denny's innocence. Lawrence, 900 F.2d at 130. By not interviewing
the potential witnesses and investigating the case, counsel was
not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment.* Strickland, 466 U.S. at 687. We conclude that
Denny has successfully satisfied the first prong of the Strickland
test.
As stated above, the Strickland test is a two-prong test; both
prongs & be satisfied in order to successfully establish
ineffective assistance of counsel. The second prong of the
Strickland test is established if Denny can demonstrate that
counsel's deficient performance so prejudiced her as to deprive her
of a fair trial, Strickland, 466 U.S. at 687. Because counsel did
not investigate and interview the potential witnesses, it is
impossible to tell whether this omission prejudiced the defendant
to such a degree as to deprive her of a fair trial. U.S. ex rel.
McCall v OVGrady (7th Cir. 1990), 908 F.2d 170, 173.
. Since we do
not know what the potential witnesses would have testified, we also
cannot determine whether such testimony would possibly have
produced a different result. McCall, 908 F.2d at 173.
The Seventh and Eighth Circuits, faced with similar situations
in post conviction proceedings, have required that the defendant be
afforded an evidentiary hearing at which time the defendant can
make na comprehensive showing as to what the investigation would
have p o u e . " S
rdcd'.. ex rel. Cross v. DeRobertis (7th Cir. 1987),

We adopt the following test and procedure enunciated by the
Seventh Circuit:
The focus of the inquiry must be on what information
would have been obtained from such an investiuation and
whether such information. assuminu its admissibilitv in
court. would have vroduced a different result. Under
usual circumstances, we would expect that such
information would be presented to the habeas court
through the testimony of the potential witnesses.
"Complaints of uncalled witnesses are not favored il i
federal habeas review." Therefore, if the ~otential
witnesses are not called. it is incumbent on the
petitioner to emlain their absence and to demonstrate,
with some precision. the content of the testimonv thev
would have aiven at trial. The district court simply
cannot fulfill its obligation under Strickland to assess
prejudice until the petitioner has met his burden of
supplying sufficiently precise infomation. (Citations
omitted.) (Emphasis added.)
Crosg, 811 F.2d at 1016. In the instant case, Denny had a hearing
on her motion for new trial. However, a different counsel
appointed to represent her at that proceeding did not call any of
the potential witnesses either. In this regard, Denny contends
that the latter counsel was also ineffective because he too, failed
to secure the testimony of the potential witnesses for her hearing
on the motion for a new trial. As stated above, without these
witnesses or an opportunity for the defendant to explain "with some
"precision, the content of the testimony they would have given at
trial,'* Denny could not have met her burden of satisfying the
second prong of the Strickland test. Cross, 811 F.2d at 1016.
Under similar circumstances, the Eighth Circuit Court stated:
A petitioner seeking relief based on ineffective
assistance of counsel must "affirmatively prove
prejudice. " To affirmatively prove prejudice, a
petitioner ordinarily must show not only that the
testimony of uncalled witnesses would have been
favorable, but also that those witnesses would have
testified at trial. Moreover, if potential trial
witnesses are not called to testify at a post-conviction
review hearing, the petitioner ordinarily should explain
their absence and "demonstrate, with some precision, the
content of the testimony they would have given at trial."
In view of these requirements, we believe that
[petitioner's] postconviction counsel also failed to
exercise the skill and diligence expected of a reasonably
competent attorney under similar circumstances.
(Citations omitted.)
Lawrence, 900 F.2d at 130. We conclude also that Denny's counsel
at the hearing on her motion for new trial should have presented
the testimony of the potential witnesses or at least presented
sufficient precise information about their prospective testimony so

what *information would have been obtained from such an
investigation and whether such information, assuming its
admissibility in court, would have produced a different result.

We conclude that the failure of Denny's second counsel to
present the testimony of Denny's potential witnesses further
frustrated her attempt to satisfy the second prong of the
Strickland test.
Having discussed the law applicable to the ineffective
assistance of counsel claims at issue in this case, it remains
incumbent upon this Court to, nevertheless, dispose of the case
based upon the procedural posture in which it comes to us on
appeal.
Denny has raised her claims of ineffective assistance of
counsel on appeal from the District Court's denial of her motion
for a new trial. Based upon the lack of evidence presented to the
District Court at the hearing on Denny's motion, the Court had
little option but to deny the motion. By reason of the failure of
her second counsel, Denny simply did not present any evidence from
which the District Court could have assessed prejudice by
determining what information would have been obtained had trial
counsel interviewed potential witnesses and whether such
information, assuming its admissibility in court, would have
produced a different result. Denny, thus, failed in her burden to
prove prejudice, as required under Strickland. Under such
circumstances, it would not have been proper for the trial court to
presume prejudice on the basis of the inadequate record before it.
Neither will this Court. We cannot conclude that the District
Court abused its discretion in denying Denny's motion for new trial
based upon the record here. Accordingly, we affirm the District
Court's denial of Denny's motion for new trial.
In doing so, however, we are not ruling on the merits of
Denny's claim of prejudice -- the second prong of the Strickland
test -- occasioned by the ineffective assistance of counsel
described above. The failure of her second counsel has prevented
Denny from effectively raising the merits of that issue in the
District Court and in this appeal. As in the Fifth, Seventh and
 Eighth Circuit cases above cited, we leave the further development
of that issue under the test and procedure set forth above, to
Denny in postconviction proceedings under Title 46, Chapter 21,
#CAP should she so choose.
AFFIRMED.

.
'
Justice Terry N. Trieweiler specially concurring.
I concur in the result of the majority opinion. However, I do
not agree with all that is said therein.
Specifically, 1 would not encourage defendant to believe that
her claim of ineffective assistance of counsel has any merit which
should be pursued by petition for post-conviction relief. Even if
we assume that the witnesses whom she claims her attorney failed to
call would have testified in the manner she now says they would
have testified, their testimony would not have helped her case.
Therefore, defendant cannot satisfy the second prong of the test
for ineffective assistance of counsel which was set forth in
Strickland v. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80

L Ed. 2d 674.
.
Defendant was convicted based on the testimony of an
undercover agent that she sold him illegal drugs. Where she might
have been at some other time of day, or what she might have done in
some other location, was simply not relevant and would have done
nothing to rebut the direct evidence of her involvement in the drug
transaction.
If defendant's presence at the mall at an earlier time was
significant, would it also have been significant that she stopped
to get gas earlier that morning? If she had testified to that
effect and her attorney had failed to call the gas station
attendant to corroborate her presence at the gas station, could
that conceivably have satisfied the Strickland test for ineffective
assistance of counsel? Clearly not. Neither can the circumstances
in this case.
For these reasons, I concur with the majority's decision to
affirm the District Court. However, I do not concur with its
suggestion that further time, expense, or effort should be wasted
to determine whether or not witnesses could actually have
corroborated defendant's testimony that she was at the Atrium Mall
earlier in the day.

Justice Hunt concurs in the foregoing concurrence.
P
 December 6. 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:

William Hooks, Esq.
Office of the Appellate Defender
P. 0. Box 200145, Capitol Station
Helena, MT 59620-0145

Hon. Joseph ?. 'fazurek, Attorney Gcncia!
Jennifer Anders, Assistant
Justice Bldg.
Helena, MT 59620

David G. Rice
Hill County Attorney
P.B. Bux 9i2
Havre, MT 59501-0912

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA