NO. 95-069
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
PI[:!\! ; t;
: 19%
DANIEL GEORGE SWAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John Keith, Attorney at Law,
Great Falls, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Elizabeth L. Griffing, Assistant Attorney
General, Helena, Montana
Brant Light, Cascade County Attorney,
Great Falls, Montana
Submitted on Briefs: August 29, 1996
~ ~ ~ i d ~ d : 26, 1996
November
Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.
Daniel George Swan appeals from the judgment and conviction,
and order denying his motion for a new trial by the Eighth Judicial
District Court, Cascade County. After a jury trial, Swan was
convicted of felony aggravated assault pursuant to § 45-5-202(1),
MCA. We affirm.
The issues on appeal are as follows:
1. Did the District Court err in instructing the jury as to
the lesser included offenses?
2. Was Swan deprived of his right to be present during all
critical stages of the proceeding when he was not present at an
in camera hearing?
3. Did the District Court err when it joined the felony
assault charge and the felony aggravated assault charge?
4. Did the District Court err in denying Swan's motion for
a new trial based on his claim of ineffective assistance of
counsel?
FACTS
On July 12, 1993, Swan was charged with felony assault arising
out of a fight between he and Ralph Toulouse, a/k/a Ralph Whitney,
at the home of Lindsey Martin. Later that year, on September 8,
1993, Swan was an inmate at the Cascade County Jail when Toulouse
was placed in the same cell as Swan. Swan and Toulouse fought in
jail that night and as a result of this fight Toulouse was severely
injured on his face and head. Toulouse ' s right eyelid was
lacerated and his right tear duct was severed, resulting in a
permanent injury. Toulouse also suffered a broken nose, broken
facial bones, broken teeth, and his head was severely swollen.
Swan did not suffer any injuries which required medical attention.
As a result of this fight, Swan was charged with aggravated
assault, a felony, pursuant to 5 45-5-202(1),MCA.
The felony assault charge and the felony aggravated assault
charge were consolidated. At trial Swan was represented by
H. William Coder. Swan was acquitted of the felony assault but was
found guilty of the aggravated assault. Swan filed a motion for a
new trial on February 22, 1994, alleging that the jury had been
improperly instructed regarding application of the assault as a
lesser included offense, that the two cases were improperly joined,
and that Coder had provided ineffective assistance. A hearing was
held and the District Court denied the motion for new trial. Swan
appeals from the judgment and conviction and the denial of the
motion for new trial.
ISSUE 1
Did the District Court err in instructing the jury as to the
lesser included offenses?
The standard of review of jury instructions in a criminal case
is whether the instructions, as a whole, fully and fairly instruct
the jury on the law applicable to the case. State v. Brandon
(1994), 264 Mont. 231, 237, 870 P.2d 734, 737.
Swan argues that the District Court erred in its instructions
because there was no instruction similar to 1-011, MCJI, defining
lesser included offense or advising the jury how to proceed in
determining whether to consider a lesser included offense. Swan,
however, did not offer an instruction regarding lesser included
offense at the time of settling the instructions. We have
previously stated that this Court will not predicate error upon the
failure to give an instruction when the party alleging the error
failed to offer the instruction. State v. Courchene (1992), 256
Mont. 381, 847 P.2d 271; State v. Evans (1991), 247 Mont. 218, 806
P.2d 512. Swan not only failed to make a timely objection to the
instructions, he expressly agreed to the instructions that were
given. He cannot now directly raise this issue on appeal. Section
46-20-104, MCA.
ISSUE 2
Was Swan deprived of his right to be present during all
critical stages of the proceeding when he was not present at an
in camera hearing?
Swan argues that his constitutional and statutory right to be
present at every stage of his trial was infringed when he was not
present during an in camera discussion of a note from the jury.
The jury sent a note to the District Court Judge inquiring whether
the assault instruction applied to the felony aggravated assault as
well as the felony assault. Both counsel were present for the
discussion of the note. Neither counsel objected to the court's
answer.
Swan did not make an objection at the time the note was
discussed nor did he raise this objection in his motion for new
trial. Section 46-20-104, MCA, provides that failure to make a
timely objection constitutes waiver of the objection except as
provided in § 46-20-701(2), MCA. The exceptions found in
§ 46-20-701(2), MCA, do not apply in this situation. We therefore
decline to address this issue raised for the first time on appeal.
ISSUE 3
Did the District Court err when it joined the felony assault
charge and the felony aggravated assault charge?
The State filed a Just notice in the aggravated assault case,
giving notice of its intent to introduce evidence of the earlier
fight. At the hearing on the Just notice, an oral motion was made
by Coder to continue the felony aggravated assault trial until
after the felony assault trial. State v. Just (1979), 184 Mont.
262, 602 P.2d 957. The parties also discussed the possibility of
consolidating the cases. There is no record of the oral motion for
consolidation by Coder; however, the District Court's order
granting consolidation specifically provides that Coder, with
Swan's consent, requested and agreed to consolidating the two
cases.
Swan's objection to the consolidation is untimely and we
decline to address the objection except in regard to his assertion
that Coder's performance was deficient when moving for and agreeing
to such joinder, which is discussed in Issue 4.
ISSUE 4
Did the District Court err in denying Swan's motion for a new
trial based on his claim of ineffective assistance of counsel?
Swan's motion for new trial also sought to reverse the
judgment on the grounds of ineffective assistance of counsel. Swan
asserts that the court abused its discretion in denying his motion
for new trial because of alleged errors committed by Coder in
regard to the instruction of the jury, the failure to have Swan
present during all critical stages of the trial, the joinder of the
charges, and on the basis that Coder misrepresented his experience
when he stated that he had previously participated in a felony
trial.
We review a district court's decision to grant or deny a
motion for new trial to determine whether the court abused its
discretion. State v. Hatfield (l995), 269 Mont. 307, 888 P.2d 899;
State v. Mummey (1994), 264 Mont. 272, 871 P.2d 868. This Court
applies the two-part test from Strickland v. Washington (1984),466
U.S. 668, to evaluate claims of ineffective assistance of counsel.
First, Swan must establish that Coder's performance was deficient
in that counsel did not act within the range of competence demanded
of attorneys in criminal cases. Strickland, 466 U.S. at 687; State
v. Baker (1995), 272 Mont. 273, 901 P.2d 54. In making this
determination, judicial scrutiny of counsel's actions is highly
deferential and counsel's performance is strongly presumed to fall
within a wide range of reasonable professional assistance. Kills
on Top v. State (1995), 273 Mont. 32, 901 P.2d 1368. Second, Swan
must establish that he was prejudiced by his counsel ' s performance,
and that "but for" Coder's performance the result of the trial
would have been different. Strickland, 466 U.S. at 687. Swan
therefore must establish both deficient performance and prejudice
to prevail on a claim of ineffective assistance of counsel.
Furthermore, this Court will not second-guess trial tactics and
strategy. Baker, 901 P.2d at 59.
Swan first argues that Coder's performance was deficient
because he failed to request an instruction describing how the
lesser included offense of assault should have been considered by
the jury in regard to the aggravated assault charge. Section
46-16-607(2), MCA, requires that a lesser included offense
instruction must be given when there is a proper request by one of
the parties and when, based on the evidence, the jury could be
warranted in finding the defendant guilty of a lesser included
offense. We have previously held that a lesser included offense
instruction is not required if it is not supported by the evidence.
State v. Kills on Top (1990), 241 Mont. 378, 394, 787 P.2d 336,
346.
Coder testified at the hearing on Swan's motion for new trial
that he did not believe there was "any evidence to support" a
lesser included offense instruction for the aggravated assault
charge. Coder explained that "simply by virtue of the fact that
those [Toulouse's] injuries were so serious and they were
permanent." Although Toulouse did not testify as to his injuries,
the record supports Coder's assessment of these injuries.
Aggravated assault pursuant to 5 45-5-202(1), MCA, is
committed if the defendant purposely or knowingly causes serious
bodily injury to another. The jury was instructed that "serious
bodily injury" is "bodily injury which creates a substantial risk
of death or which causes serious permanent disfigurement or
protracted loss or impairment of the function or process of any
bodily member or organ." Section 45-2-101(64), MCA. Expert
medical testimony is not required to prove the permanency of an
injury where the permanency is undisputed and apparent from the
nature of the injury itself. State V. Bower (1992), 254 Mont. 1,
10, 833 P.2d 1106, 1112.
The injuries inflicted by Swan on Toulouse were uncontested.
The permanency of these injuries was uncontroverted. Lindsey
Martin testified to the scarring on Toulouse's face, the continuous
tearing of the eye, and the sagging of his eye. Coder properly
interpreted the law in determining that there was not evidence to
support a jury finding of the lesser included offense of assault as
it applied to the aggravated assault charge. We have previously
held that a defense counsel's performance is not deficient as a
matter of law where counsel properly interprets the law. Brown v.
State (Mont. 1996), 922 P.2d 1146, 1152, 53 St. Rep. 692, 696.
Swan's argument that Coder's performance was deficient when he did
not request the lesser included offense instruction for the
aggravated assault charge fails the first part of the Strickland
test, as counsel's performance was within the range of competence
demanded of attorneys in criminal cases and therefore we need not
address the second prong of the test.
Swan next asserts that Coder's failure to have Swan present
when the jury sent a note to the District Court Judge asking if the
simple assault applied to both cases was in violation of his Sixth
Amendment rights under the United States Constitution to be present
at every stage of his trial, and also a violation of § 46-16-121,
MCA. Swan, however, was present at all stages of the trial where
his presence was essential to a fair and just determination of a
substantive issue. State v. Hart (1981), 191 Mont. 375, 625
P.2d 21; State v. Schenk (1968), 151 Mont. 493, 444 P.2d 861.
The District Court specifically found that the note from the
jury on whether assault could be considered in both cases did not
indicate confusion, but rather demonstrated that the jury knew
"what to do with it and only wanted to know if it applied to both
offenses." The absence of Swan from the discussion of the legal
question by the jury was not injurious to his right of due process
or his right of confrontation. Furthermore, in order to fulfill
the Strickland two-part test Swan is required to show that but for
counsel's performance the outcome would have been different. Swan
has made no showing that the jury did not fully understand the
operation of the lesser included offenses when it sent the inquiry
to the court, and he also has made no showing that if the jury had
formally been given the lesser included offense instruction the
outcome would have been different. Coder's performance was not
deficient in this area.
Swan's third assertion is that Coder was ineffective in
allowing the cases to be joined. At the hearing on the motion for
new trial, Coder testified that he wanted the cases consolidated
for strategic reasons. Coder testified he believed that evidence
of the earlier fight would support Swan's self-defense argument and
would show that Toulouse held a grudge against Swan and that many
of the same witnesses would be called to testify. Coder also
testified Swan had agreed to the consolidation.
Swan, however, asserts there were no common witnesses
necessary for both cases, as the victim did not testify. He argues
that the State was simply trying to avoid the necessity of
complying with the Just notice rule requirements by having the
matters consolidated.
We have previously held that questions of the propriety of the
joinder of offenses in a single trial are subject to an abuse of
discretion standard. State v. Slice (1988), 231 Mont. 448, 753
P.2d 1309. This Court has frequently stated that it will not
second-guess trial tactics or strategy of defense counsel. Brown,
922 P.2d at 1148. Coder testified that he made a tactical decision
to allow the cases to be tried at the same time because it would
allow "an excellent claim for self defense." Furthermore, Swan
agreed to the consolidation. Under Strickland, Coder is entitled
to rely upon his client's representations and decisions.
Strickland, 466 U.S. at 691. We therefore hold that Swan's
allegations of ineffective assistance of counsel by allowing
joinder of the two cases must fail.
Swan's final assertion under his theory of ineffective
assistance of counsel is that Coder misrepresented his experience
when he stated that he had had a felony trial in Glasgow. This
argument fails to address the merits of Coder's representation and
does not reflect upon Coder's performance. We thus decline to
address this argument as we have determined that the District Court
did not abuse its discretion in denying Swan's motion for new trial
on the basis that Coder's representation of Swan was deficient.
Af firmed.
Justice
We concur: