NO. 93-227
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DARRIN DOMINIC BRADLEY,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Blaine,
The Honorable Leonard Langen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Patrick F. Flaherty, Attorney at Law, Great Falls,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General: Jennifer
Anders, Assistant Attorney General, Helena, Montana
David Gorton, Deputy Blaine County Attorney,
Chinook, Montana
Submitted on Briefs: October 21, 1993
Decided: November 30, 1993
Filed:
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CLERK SF SUPREME COURT
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Justice Karla M. Gray delivered the Opinion of the Court.
Darrin Dominic Bradley (Bradley) appeals his convictions of
the offenses of negligent homicide, negligent vehicular assault and
failure to wear a seat belt, claiming ineffective assistance of
counsel and an unconstitutional exclusion of Native Americans from
the pool of prospective jurors. We conclude that the performance
of Bradley's counsel was not deficient and that Bradley has failed
to establish that Native Americans were improperly excluded from
the jury pool. Therefore, we affirm the District Court.
On June 5, 1992, Bradley was involved in a three-vehicle
accident while driving eastbound on U.S. Highway 2 near Chinook,
Montana. Tammy Young (Young), another driver involved in the
accident, suffered multiple traumatic injuries and died at the
scene of the accident. The third driver, Matt Molyneaux
(Molyneaux), received minor injuries.
Bradley was charged with, and pled not guilty to, negligent
homicide, negligent vehicular assault, and failure to wear a seat
belt. After a jury was impaneled, Bradley, a Native American,
moved the District Court to discharge the jury, arguing that all
Native Americans listed as prospective jurors had been excluded
from serving on the jury. The District Court ascertained the basis
for each peremptory challenge and challenge for cause, concluded
that there was no concerted effort to exclude Native Americans, and
denied the motion. The jury convicted Bradley on all charges
following a trial held December 2, 1992.
After eliciting extensive statements from the family and
2
friends of Young and Bradley, the District Court sentenced Bradley
to concurrent ten-year and six-month terms of incarceration for
negligent homicide and negligent vehicular assault, respectively.
The court suspended the sentences provided that Bradley obtain
substance abuse counseling, perform community service, and serve 60
days in the county jail. Additionally, the terms of his suspended
sentences required Bradley to pay a portion of his income into a
trust fund established for the benefit of Young's two children and
for any counseling required by Molyneaux and Young's husband and
children as a result of the accident. The court also ordered
restitution totaling $9,865.49 and fined Bradley an additional $20
for the seat belt violation.
Bradley moved for a new trial claiming that he had received
ineffective assistance of counsel. The District Court denied the
motion because it was not filed within thirty days following the
verdict as required by 5 46-16-702, MCA. Bradley now requests this
Court to set aside his convictions and remand for a new trial,
reasserting his ineffective assistance of counsel claim and arguing
that Native Americans were unconstitutionally excluded from the
pool of prospective jurors by the court's failure to have them
personally served with jury summonses.
Should Bradley's convictions be reversed on the basis that he
received ineffective assistance of counsel?
Bradley asserts numerous deficiencies in his counsel's
performance at trial, including the failure to 1) give an opening
statement: 2) move that the State's witnesses be excluded from the
3
courtroom; 3) obtain an accident reconstruction expert and other
favorable witnesses: 4) object to the introduction of his blood
test result from the state crime laboratory; 5) object to testimony
by the investigating officers and treating medical personnel
regarding Bradley's state of sobriety: 6) offer jury instructions:
and 7) present an effective closing argument. On the basis of
these deficiencies, Bradley contends that his constitutional right
to the effective assistance of counsel was violated.
This Court uses the two-part test set forth in Strickland v.
Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, to
evaluate ineffective assistance of counsel claims. State v. Senn
(1990) I 244 Mont. 56, 58-59, 795 P.2d 973, 975. Under the first
prong of that test, the defendant must prove that counsel's
performance was deficient by establishing that it fell below the
range of competence reasonably demanded of attorneys in light of
the Sixth Amendment. The second prong requires the defendant to
demonstrate that counsel's deficiency was so prejudicial that it
denied the defendant a fair trial. To satisfy this requirement,
the defendant must demonstrate a reasonable probability that the
result of the proceeding would have been different but for
counsel's deficient performance. -, 244 Mont. at 59.
Senn
We address first the alleged deficiencies regarding counsel's
failure to object to evidence of intoxication. Bradley contends
that counsel's performance was deficient because she did not object
to the testimony of Dan Friede, Ric Munfrada, and Lorrain Dupree
indicating that Bradley was intoxicated. According to Bradley,
4
"lay persons" are incompetent to testify to intoxication under Rule
701, M.R.Evid.
Rule 701, M.R.Evid., limits the testimony of lay witnesses to
opinions or inferences which are rationally based on the witness'
perceptions and which further a clear understanding of the witness'
testimony or the determination of a fact at issue. This rule does
not preclude lay witnesses from testifying to a person's state of
intoxication. Commission Comment, Rule 701, M.R.Evid.; State v.
Hardy (1980), 185 Mont. 130, 134, 604 P.Zd 792, 795.
The testimony of Friede, Munfrada, and Dupree met the
requirements of Rule 701, M.R.Evid. These three witnesses
testified that they had observed Bradley following the accident and
that, based on their observations, he was intoxicated. The
testimony was relevant to the jury's determination of whether
Bradley committed negligent homicide and negligent vehicular
assault. Thus, there was no basis for counsel to object to the
testimony of Friede, Munfrada and Dupree under Rule 701, M.R.Evid.
Bradley also contends that counsel's performance was deficient
because she failed to object on hearsay grounds to the introduction
of the state crime laboratory report indicating a blood alcohol
content of 0.12. The report is hearsay under Rule 801(c),
M.R.Evid., if it is introduced for the truth of the results shown.
It may still be admitted into evidence, however, if "otherwise
provided by statute, these rules, or other rules applicable in the
courts of this state." Rule 802, M.R.Evid.
Rule 803(8), M.R.Evid., specifically provides that a written
5
report from the state crime laboratory is not excluded by the
hearsay rule if the State timely notifies the court and opposing
party in writing of its intention to offer the report in evidence.
Here, the State complied with the notification requirement
contained in the rule. It indicated on the omnibus checklist filed
more than three months prior to trial that the report had been
supplied to Bradley. Indeed, Bradley acknowledged in his brief
supporting a motion to suppress evidence that the State had
disclosed its intent to introduce the report. Thus, the report
containing the blood test result was within the hearsay exception
contained in Rule 803(8), M.R.Evid.
Bradley also contends that counsel's performance was deficient
because she did not object to the foundation laid by the State for
introducing the report. Specifically, he argues that the
foundation was inadequate because the State did not call the
laboratory analyst who performed the test as a witness to complete
the chain of custody regarding the blood sample.
In State v. Zackuse (1992), 253 Mont. 305, 833 P.2d 143, we
determined that the State was not required to call as a witness
each person who handled drug evidence in order to establish its
chain of custody. Zackuse, 833 P.2d at 145. A completed form
issued by the state crime laboratory that included a chain of
custody log listing the names of the persons at the lab who handled
the evidence was sufficient to establish the final link in the drug
evidence's chain of custody. Zackuse, 833 P.2d at 145.
Here, Munfrada and Greg Szudera, a sergeant with the Montana
6
Highway Patrol, testified at length concerning the chain of custody
of the blood sample from the time it was drawn to when it was
mailed to the crime laboratory. The State also introduced a
completed form from the crime laboratory which listed the names of
all the persons at the lab who handled the blood sample. This form
is sufficient to complete the chain of custody under Zackuse. The
testimony elicited and the crime lab form provided sufficient
foundation for admitting the blood test report.
Counsel's failure to oppose the admission of evidence, absent
a legal basis for doing so, does not constitute deficient
performance. See State v. Christenson (1991), 250 Mont. 351, 358-
60, 820 P.2d 1303, 1308-09. Thus, we conclude that Bradley's
counsel's failure to object to the testimony and state crime
laboratory report regarding his state of intoxication does not
constitute deficient performance and, therefore, does not meet the
first prong of the Strickland ineffective assistance of counsel
test.
The remaining deficiencies in counsel's performance alleged by
Bradley also do not provide a basis for reversing his convictions.
Decisions regarding the presentation of opening and closing
statements, submission of jury instructions, procurement of
witnesses, and exclusion of witnesses from the courtroom constitute
trial tactics. This Court will not second-guess trial tactics and
strategy when evaluating counsel's performance. State v. Johnstone
(1990) I 244 Mont. 450, 465, 798 P.2d 978, 987.
Finally, we note that Bradley relies extensively on material
7
outside the record to establish an exculpatory theory of the
accident in an effort to show that counsel erred by failing to
procure its own expert witness and call an investigating insurance
adjuster as a witness. This Court's review of allegations on
direct appeal, however, is confined to the record. Section 46-20-
701, MCA: State v. Schoffner (1991), 248 Mont. 260, 268, 811 P.2d
548, 553. Thus, the non-record material provides no basis for
finding a deficiency in counsel's performance.
We conclude that the performance of Bradley's counsel was not
deficient under the first prong of the Strickland test. Therefore,
we hold that Bradley is not entitled to a reversal of his
convictions and a new trial based on his ineffective assistance of
counsel claim.
Is Bradley entitled to reversal of his convictions because the
District Court failed to have Native Americans personally served
with jury summonses?
After the jury had been selected, Bradley's counsel orally
moved the court to discharge the jury, arguing that no Native
Americans had been selected to serve. The District Court
determined that the State had a legitimate nondiscriminatory reason
for exercising each of its peremptory challenges and that Bradley's
counsel had agreed with all challenges for cause. On that basis,
the District Court concluded that the State had made no concerted
effort to exclude Native Americans from the jury. On appeal,
Bradley asserts no error by the District Court in this regard.
On appeal, Bradley advances a nebulous argument concerning the
8
District Court's failure to have jury summonses personally served
on Native Americans who had been served by mail and had failed to
appear. He apparently argues that the District Court's failure to
order personal service excluded Native Americans from the pool of
prospective jurors, violating his constitutional right to a jury
drawn from a representative cross-section of the community under
Duren v. Missouri (1979), 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.Zd
579, and constituting purposeful discrimination based on race under
Whitus v. Georgia (1967), 385 US. 545, 87 S.Ct. 643, 17 L.Ed.Zd
599. We disagree.
To establish a prima facie case under either m or Whitus,
a defendant is required to show a statistical discrepancy between
the percentage of prospective jurors and persons in the community
who are members of the allegedly excluded class. Duren, 439 U.S.
at 364; Whitus, 385 U.S. at 550-51. Bradley has failed to make any
showing that the pool of prospective jurors contained an inadequate
representation of Native Americans. Thus, based on the record
before us, we cannot conclude that Bradley's right to a jury drawn
from a cross-section of his community was violated or that
discrimination based on race occurred.
We hold that the failure to personally serve the Native
Americans with jury summonses does not entitle Bradley to a
reversal of his convictions.
Affirmed.
9
we concur:
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November 30, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Patrick F. Flaherty
Attorney at Law
625 Central Ave. W., #lOl
Great Falls, MT 59404
Hon. Joseph P. Mazurek, Attorney General
Jennifer Anders, Assistant
Justice Bldg.
Helena, MT 59620
Donald A. Ranstrom, County Attorney
C. David Gorton, Deputy
P.O. Box 188
Chinook, MT 59523
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF, MGNTANA