State v. Campbell

NO. 95427
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

STATE OF MONTANA,
Plaintiff and Respondent,

TODD CAMPBELL,
Defendant and Appellant.

APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Roy C. Rodeghiero, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Vicki Knudsen, Attorney at Law, Roundup,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Patricia J. Jordan, Ass't Attorney General,
Helena, Montana
Thomas P. Meissner, Fergus County Attorney,
Lewistown, Montana

Submitted on Briefs: July 11, 1996
Decided: September 12, 1996
Filed: SEP 12
CT2 Smitls
“,ERK OF SUPREME COURT:
5TAATE O f MWJTA@
Justice Karla M. Gray delivered the Opinion of the Court.

Todd Campbell (Campbell) appeals from the judgment and
sentence entered by the Tenth Judicial District Court, Fergus
County, on jury verdicts finding him guilty of two counts of sexual
intercourse without consent and one count of sexual assault. We
affirm.
We address the following issues on appeal:
1 . Did the District Court err in denying Campbell's motion to
suppress his confession?
2 . Was Campbell's confession supported by independent
corroborating evidence?
3 . Did the District Court abuse its discretion in denying
Campbell's motion for a directed verdict of acquittal?
4. Was Campbell denied effective assistance of counsel?
5 . Did the District Court err regarding either its order for
a psychological examination or a determination that Campbell
was indigent?
In late 1992, the Montana Department of Family Services (DFS),
now the Department of Public Health and Human Services, received
several complaints of parental neglect regarding L.D., A.D. and
M.M., ages six, four and two, respectively. It removed the three
girls from their mother's home and placed them in foster care on
January 28, 1993. While in foster care, the children displayed
behavior and made statements indicating that they may have been
sexually abused.
Jim Simonich (Simonich), a DFS social worker, reported the
suspected abuse to the Lewistown Police Department (LPD) in

February of 1993. Simonich also made arrangements for the girls to
be examined by Dr. Nancy Maynard, a Great Falls pediatrician who
specializes in conducting physical examinations in suspected child
sexual abuse cases. Dr. Maynard examined the children on March 11,
1993, and found physical evidence that L.D. and A.D. had been
sexually abused. Her examination of M.M. did not reveal any
conclusive physical evidence of sexual abuse.
Officer David Sanders of the LPD began investigating
Simonich's report that the children may have been sexually abused.
During his investigation, Officer Sanders spoke with the children's
maternal grandmother, who mentioned that Campbell had babysat the
children on various occasions. She indicated that she felt
uncomfortable when Campbell was around the children and that she
suspected that Campbell may have had sexual contacts with the
girls.
Officer Sanders telephoned Campbell on April 25, 1993, and
made arrangements for an in-person interview; he did not tell
Campbell what the interview would be about. When Campbell arrived
at the police station for the interview two days later, Officer
Sanders took him into an interview room and proceeded with an
interview which lasted approximately one and one-half hours.
During the interview, Campbell made oral admissions and also wrote
a statement confessing to sexual offenses against each of the three
girls. He recanted his confession later that day.
The State of Montana (State) subsequently charged Campbell
with two counts of sexual intercourse without consent, involving
L.D. and A.D., and one count of sexual assault, involving M.M.

3
Campbell moved to suppress his written confession and the oral
admissions made to Officer Sanders. After an evidentiary hearing,
the District Court denied the motion to suppress.
A jury trial was held in June of 1994, and the jury found
Campbell guilty of all three charges. The District Court sentenced
him to ten years in prison, with eight years suspended, on each
charge, and ordered that the sentences run concurrently. Campbell
appeals and is represented by new counsel on appeal.
1. Did the District Court err in denying Campbell's
motion to suppress his confession?
Campbell moved to suppress both the written confession and the
oral admissions (collectively, the confession) made to Officer
Sanders during the interview on the basis that they were
involuntary. He argued that he did not understand the meaning or
consequences of his confession because of his low mental
capabilities and also that the officer used improper tactics during
the interview.
The District Court denied Campbell's motion to suppress. It
found that Officer Sanders' testimony regarding what happened
during the interview was more credible than Campbell's and
determined, on that basis, that no improper police tactics were
used during the interview. The court also found that, although
Campbell did have a 1OW intelligence quotient (I.Q.), his
confession was made voluntarily. The District Court noted that
Campbell had no problems hearing and responding to questions when
he testified and that his responses were coherent. The court also

4
found that Campbell exhibited the ability to recall past events and
that his vocabulary was "greater than he was willing to admit."
When a defendant moves to suppress a confession on the basis
that it was involuntarily given, the prosecution must prove by a
preponderance of the evidence that the confession was voluntary.
Section 46-13-301, MCA. This Court reviews a district court's
findings of fact on a motion to suppress to determine whether those
findings are clearly erroneous. State v. Loh (Mont. 1996), 914
P.2d 592, 601, 53 St.Rep. 226, 232. "A finding of fact is clearly
erroneous if it is not supported by substantial evidence, if the
district court misapprehended the effect of the evidence, or if
this Court has a definite or firm conviction that the district
court committed a mistake." Lob, 914 P.2d at 601 (citation
omitted). It is within the province of the trial court to
determine the credibility of witnesses and the weight to be given
their testimony during a hearing on a motion to suppress and we do
not review those determinations. State v. Gould (1985), 216 Mont.
455, 466, 704 P.2d 20, 27-28 (quoting State v. Grimestad (1979),
183 Mont. 29, 37, 598 P.2d 198, 203).
The voluntariness of a confession is a question of fact which
must take into account the totality of the circumstances under
which the confession was made. a, 914 P.2d at 601. The totality
of the circumstances includes, but is not limited to, the
defendant's age and level of education; the interrogation technique
used by the police; whether the defendant was advised of his or her
Miranda rights; the defendant's prior experience with the criminal

5
justice system; the defendant's background and experience; and the
defendant's demeanor, coherence, articulateness, and capacity to
make full use of his or her faculties. Lob, 914 P.2d at 601-602.
In the instant case, both Officer Sanders' testimony and other
evidence regarding the totality of the circumstances in which
Campbell's confession was made support the District Court's finding
that the confession was voluntary and, therefore, that the State
had met its burden under § 46-13-301, MCA. Campbell was 22 years
old when interviewed by Officer Sanders; he had completed the tenth
grade with the help of special education classes and subsequently
received his GED. Campbell's full-scale I.Q. is 81, which is less
than what is considered the normal range, but is not so low as to
constitute mental retardation.
Campbell arrived at the LPD with his mother at approximately
6:00 in the evening and was taken to an interview room by Officer
Sanders. Officer Sanders told Campbell that he was not under
arrest, that he could leave at any time and that he did not have to
answer any questions. The officer then began to read a Miranda
rights form but was interrupted by other business. He asked
Campbell to remain in the interview room until he returned, at
which time he resumed reading the Miranda rights form. Officer
Sanders testified--and the rights form indicated--that Campbell
signed the statement of rights form in the space indicating that he
understood his rights; Campbell also signed the form in the space
which indicated that he had read the statement of rights,
understood what his rights were, and was voluntarily waiving his

6
right to a lawyer and his right to remain silent. Both signatures
were witnessed by Officer Sanders. According to the officer,
Campbell also verbally stated that he understood the statement of
rights.
At that point, Officer Sanders began to question Campbell
regarding whether he knew the three girls and their mother.
Campbell responded that he did know them and that he had babysat
the girls. Officer Sanders then told Campbell that an
investigation was under way regarding incidents of sexual abuse
against the girls and that the investigation indicated that
Campbell might be involved. Campbell initially denied having any
sexual contact with the girls but, as the interview progressed, he
admitted that he had sexual intercourse with the two older girls
and sexual contact with the youngest one. During the interview,
Campbell described various incidents that occurred with each of the
girls and how the girls reacted.
After Campbell made these disclosures, Officer Sanders asked
him if he would make a written statement outlining what he had said
during the interview. Officer Sanders brought out a form and
explained to Campbell that it was a voluntary statement form. The
officer testified that he read the form, including another
statement of rights, to Campbell and explained that he did not have
to make a statement. Campbell then filled in his name and the
date, time, and location of the interview, and wrote out a
statement confessing to sexually abusing the girls.

7
 Officer Sanders testified that he did not threaten Campbell
during the interview or otherwise try to intimidate Campbell into
confessing, and that he made no promises to Campbell regarding
leniency from either the prosecution or the court if Campbell
confessed. The officer stated that Campbell appeared to understand
his rights, was able to converse coherently and never indicated
that he wished to stop the interview or leave the room. Officer
Sanders stated that the LPD had a policy of not taping interviews
by audio or video means because it usually makes the interviewee
nervous and less likely to talk openly.
Campbell's version of the interview differed markedly. He
testified that Officer Sanders was threatening during the
interview, yelled at him repeatedly, and promised to make it easy
for him with the county attorney if he confessed. Campbell also
testified that Officer Sanders told him what to write in the
confession and even told him how to spell some of the words.
Although he agreed that he signed the Miranda rights form, Campbell
maintained that Officer Sanders did not finish reading the
statement of rights to him after the interruption and that he did
not understand his rights or realize that he could terminate the
interview. He also asserted that he did not have his glasses with
him at the interview and could not read the statement of rights and
voluntary statement forms; on cross-examination, however, he
testified that he had been without his glasses for approximately
two years prior to the interview and could drive his car without
his glasses.

8
 Campbell contends that we must view Officer Sanders' testimony
with suspicion and that his own testimony was sufficient to
preclude the State from meeting its statutory burden of
establishing that his confession was voluntary by a preponderance
of the evidence. We disagree.
As discussed above, the District Court accepted Officer
Sanders' testimony regarding the interview. Credibility
determinations regarding witnesses who testify on a motion to
suppress a confession are solely within the province of the trial
court. Gould, 704 P.2d at 27-28. Moreover, the preponderance of
the evidence standard required by § 46-13-301, MCA, is for the
trial court--not this Court--to determine. In making that
determination, the trial court assesses credibility and weighs
contradictory evidence; we do not review such matters. Gould, 704
P.2d at 28. Campbell also urges that, even if his version of the
interview were discounted entirely, it is "doubtful" that he
understood his Miranda rights and the ramifications of signing the
rights form. The extent of Campbell's understanding goes directly
to whether his confession was voluntary and voluntariness is the
central question of fact to be determined by the trial court under
the totality of the circumstances test. See Loh, 914 P.2d at 601.
Here, the District Court weighed the evidence, assessed the
credibility of Campbell and Officer Sanders and found that the
confession was voluntary.
We conclude that substantial evidence regarding the totality
of the circumstances surrounding Campbell's confession supports the

9
District Court's finding that Campbell's confession was voluntary,
and that finding is not otherwise clearly erroneous. We hold,
therefore, that the District Court did not err in denying
Campbell's motion to suppress his confession.
2 . Was Campbell's confession supported by independent
corroborating evidence?
Campbell argues that his extrajudicial confession was not
supported by independent corroborating evidence and, therefore,
that his conviction of the offenses of sexual intercourse without
consent and sexual assault cannot stand; the only authority to
which he cites is Montana Criminal Jury Instruction l-018. Neither
the instruction nor the applicable statute supports his position.
In pertinent part, the District Court instructed the jury as
follows regarding admissions and confessions:
A confession, as applied in criminal law, is a
statement by a person made after the offense was
committed that he committed or participated in the
commission of a crime. An admission is a statement made
by the accused, direct or implied, of facts pertinent to
the issue and tending in connection with oroof of other
facts to prove his guilt. A conviction cannot be based
on an admission or confession alone.
(Emphasis added.) The instruction was patterned on Montana
Criminal Jury Instruction l-018.
Campbell contends that, absent his confession, there was
"absolutely no evidence to connect [him] to the commission of those
offenses other than the fact that he babysat L.D., A.D. and M.M.,
at the request of their mother . .'I He apparently argues in
this regard that the State did not present "proof of other facts"
regarding the offenses of sexual intercourse without consent

10
against L.D. and A.D. and sexual assault against M.M. as required
by the instruction.
Other statements in Campbell's briefs, as well as evidence of
record, belie his contention in this regard. Campbell admits that
evidence indicates that the offenses with which he was charged were
committed. Further, he admits that, having babysat the children,
he had the opportunity to commit the offenses. Thus, the record
contains "proof of other facts" which, with his admissions and
confession, tend to prove his guilt. The language of the
instruction requires no more and Campbell cites to no authority
suggesting otherwise.
Moreover, the law relating to independent corroborating
evidence is contained in 5 46-16-215, MCA. Section 46-16-215, MCA,
provides that "[blefore an extrajudicial confession of the
defendant to the crime charged may be admitted into evidence, the
prosecution shall introduce independent evidence tending to
establish the commission of the crime charged." The plain language
of the statute requires only that the prosecution present
independent evidence tending to establish that the crime was

committed, not that the defendant committed it. Such independent
evidence was presented here.
Dr. Maynard's videotaped deposition regarding her physical
examination of the three girls was admitted into evidence at
Campbell's trial. Dr. Maynard testified that, upon examining L.D.
and A.D., she found that each had scar tissue on the hymen which
would only have resulted from direct penetration into the vaginal

11
area; in her opinion, such direct penetration was highly unlikely
to have occurred accidentally. Dr. Maynard also stated that the
condition of the scar tissue indicated that there had been multiple
penetrations. Regarding her examination of M.M., Dr. Maynard was
unable to state conclusively whether M.M. had~been sexually abused,
but she did testify that there were no physical findings of any
penetration of the vagina.
Marla North, a therapist specializing in the treatment of
sexual abuse victims and offenders who had conducted an assessment
of L.D., A.D. and M.M. at DFS' request, also testified for the
State. Ms. North testified that all three girls exhibited
behaviors consistent with having been sexually abused. In
addition, both L.D. and M.M. told Ms. North that they had been
abused. In Ms. North's opinion, all three girls had been sexually
abused. Evidence also established, as a matter of law, that the
girls were incapable of consenting to the sexual intercourse and
sexual assault because of their ages and, therefore, the "without
consent" element of the crimes was proven. See 55 45-5-503, 45-5-
501, and 45-5-502, MCA.
The above-referenced evidence is entirely independent of
Campbell's confession and meets the requirement of § 46-16-215,
MCA, that such independent evidence tend to establish the
commission of the offenses of sexual intercourse without consent
against L.D. and A.D., and of sexual assault against M.M. We
conclude that sufficient independent corroborating evidence
supported Campbell's confession in this case.

12
 3 . Did the District Court abuse its discretion in
denying Campbell's motion for a directed verdict of
acquittal?
Campbell moved for dismissal of the charges or a directed
verdict of acquittal under 5 46-16-403, MCA. He contended that no
evidence connected him to the commission of the offenses except for
his confession, that the State failed to provide corroborating
evidence for that confession and, therefore, that there was
insufficient evidence to go to the jury. The District Court denied
Campbell's motion. On appeal, Campbell argues that the court
should have granted the motion because, although sufficient
evidence established that the offenses had been committed, no
evidence other than the confession proved beyond a reasonable doubt
that he committed them.
This argument is, in large part, a repackaging of Campbell's
contention in Issue 2 that his confession was not sufficiently
corroborated. We rejected that contention above, concluding that
the State presented sufficient independent evidence to corroborate
Campbell's confession to the offenses charged.
A trial court should grant a motion for directed verdict of
acquittal only when there is no evidence whatsoever to support a
guilty verdict. State v. Moore (1994), 268 Mont. 20, 64, 885 P.2d
457, 484 (citation omitted). Whether to direct a verdict of
acquittal is within the trial court's discretion and we will not
disturb that court's decision absent an abuse of discretion.
Moore, 885 P.2d at 484.

13
 Here, Campbell's confession, together with the independent
evidence that the offenses were committed and that Campbell had the
opportunity to commit them, provides sufficient evidence to support

a guilty verdict on the charges of sexual intercourse without
consent against L.D. and A.D. and sexual assault against M.M. We
conclude, therefore, that the District Court did not abuse its
discretion in denying Campbell's motion for a directed verdict of
acquittal.
4. Was Campbell denied effective assistance of counsel?
Campbell argues that he did not receive the effective
assistance of trial counsel guaranteed by the Sixth Amendment to
the United States Constitution. A defendant seeking to reverse a
judgment on the basis of ineffective assistance of counsel bears a
heavy burden. State v. Baker (1995), 272 Mont. 273, 282, 901 P.2d
54, 59, cert. denied, 116 S.Ct. 940 (1996).
We apply the two-part test set forth in Strickland v.
Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, in
evaluating a claim of ineffective assistance of counsel. Baker,
901 P.2d at 59. The first Strickland prong requires a defendant to
establish that counsel's performance was deficient pursuant to the
l'reasonably effective assistance I1 test; if counsel acted within the
range of competence demanded of attorneys in criminal cases,
counsel's performance was not deficient. ,
Baker 901 P.2d at 59.
Moreover, judicial scrutiny of counsel's actions must be highly
deferential and counsel's performance is strongly presumed to fall
within the wide range of reasonable professional assistance. Kills

14
on Top v. State (19951, 273 Mont. 32, 49, 901 P.2d 1368, 1379
(citing Strickland, 466 U.S. at 688-89).
The second Strickland prong requires a defendant to establish
that the deficient performance prejudiced him and deprived him of
a fair trial. Baker, 901 P.2d at 59. Prejudice is evaluated by
whether a reasonable probability exists that, but for the deficient
performance, the outcome of the trial would have been different.
Baker, 901 P.2d at 59. A defendant must establish both deficient
performance and prejudice to prevail on a claim of ineffective
assistance of counsel, and this Court will not second-guess trial
tactics and strategy. Baker, 901 P.2d at 59.
Campbell contends that trial counsel's performance was
deficient in failing to conduct an independent investigation
regarding the offenses; in failing to obtain a psychological
evaluation to establish that Campbell was unfit to stand trial; and
in failing to object to having Marla North, who had evaluated the
victims of the offenses, conduct his presentence sexual offender
evaluation. He asserts that these deficiencies in counsel's
performance prejudiced him and deprived him of a fair trial. We
address Campbell's contentions in turn.
a. Independent Investigation
We observe that nothing of record before us relates to whether
counsel independently investigated the offenses with which Campbell
was charged and, if so, the extent of any such investigation.
tt[A]llegations of ineffective assistance of counsel which are based
on facts which cannot be documented from the record in the

15
underlying case must be raised by petition for post-conviction
relief." State v. Bromgard (1995), 273 Mont. 20, 23, 901 P.2d 611,
613 (citing State v. Courchene (1992), 256 Mont. 381, 847 P.2d
271). Thus, Campbell's claim that his counsel did not conduct an
independent investigation cannot be raised on direct appeal and is
not properly before us.
b. Psychological Evaluation
Campbell's argument regarding his counsel's failure to obtain
a psychological evaluation appears to be a composite of two
different contentions, neither of which is clearly developed or
supported by authority. He argues first that counsel failed to
assert his lack of mental capacity to formulate the requisite
"knowingly or purposely" mental state element of the offenses.
The record is clear that neither lack of mental capacity nor
mental disease or defect was asserted in response, or as a defense,
to the crimes with which Campbell was charged. The record is
equally clear, however, that counsel made an affirmative decision
not to argue that Campbell did not have the requisite mental state
or mental capacity to commit the offenses; indeed, counsel told the
jury that Campbell's low I.Q. did not mean that he was not capable
of committing the crimes charged. Counsel's strategy in this case
is reflected in his additional statement to the jury that the
testimony would show that Campbell's low I.Q. made him "susceptible
to influence by Officer Sanders to present a false statement." In
other words, faced with the admission of Campbell's confession,
counsel sought to persuade the jury that the confession was false

16
and resulted from Campbell's inability to withstand Officer
Sanders' influence.
As discussed above, we do not second-guess counsel's trial
tactics and strategy. See -,
Baker 901 P.2d at 59. We conclude,
therefore, that Campbell has not established that counsel's
performance was deficient in this regard.
Campbell also argues that his counsel's failure to obtain a
psychological evaluation to determine his competence and fitness to
stand trial constituted deficient performance. The record reflects
that Campbell's counsel moved for an examination of Campbell's
mental condition pursuant to § 46-14-202, MCA, and requested that
Yellowstone Psychological Services be appointed to perform the
examination by virtue of its expertise regarding alleged sex
offenders. By Minute Entry, the District Court ordered both a §
46-14-202, MCA, examination and a sex offender evaluation. The
court's subsequent written order varied somewhat from the Minute
Entry order. In its written order, the court appointed Yellowstone
Psychological Services to perform the sex offender evaluation at
the expense of Campbell's family, as agreed, and observed that
"[slhould it be deemed necessary that further evaluation regarding
the defendant's competency is required, such shall be ordered."
At the end of the later hearing on Campbell's motion to
suppress, the court inquired about whether the evaluation was to be
conducted. Counsel responded that Campbell's mother, who had
retained--and was paying--him, could not afford the evaluation.
Counsel also stated his uncertainty regarding whether he could
establish that Campbell was indigent so as to have the evaluation

performed without charge to Campbell under § 46-14-202(4), MCA.
The record is silent regarding the psychological evaluation
thereafter.
As set forth above, a strong presumption exists that counsel's
conduct falls within a wide range of reasonable professional
assistance and the burden is on the defendant to show that
counsel's performance was deficient. See Kills on Too, 901 P.2d at
1379; Baker, 901 P.2d at 59. While it is arguable that counsel
should have moved for a determination of Campbell's indigency in
order to obtain a psychological evaluation at state or county
expense, it also is possible that counsel merely decided that such
an evaluation was not likely to be helpful to Campbell. Such a
decision, if made or considered, may have been buttressed by the
District Court's determinations in denying Campbell's motion to
suppress that, notwithstanding his low I.Q., Campbell made the
confession voluntarily and did not have difficulty in testifying on
that motion.
We need not speculate, however, on whether counsel's failure
to obtain a psychological evaluation of Campbell was a strategic or
tactical decision rather than an act outside the wide range of
reasonable professional assistance. Assuming arguendo that this
failure constituted deficient performance, Campbell still must
establish that the deficiency prejudiced him and deprived him of a
fair trial. See -,
Baker 901 P.2d at 59. In other words, does a
reasonable probability exist that, had the psychological evaluation

18
been obtained, the outcome of Campbell's trial would have been
different? See Baker, 901 P.2d at 59.
In this regard, Campbell points only to the following
testimony by his mother at the suppression hearing:
Q: In terms of raising your son, wasn't it true that he
had a certain diagnosis placed on him about this time of
schizophrenia?
A: Yes.
Q: Do you recall that?
A: I can't even remember the word. It's so vague.
This testimony is sketchy at best; it provides neither a clear time

frame for the question nor a clear answer that a diagnosis of
schizophrenia actually was made. Furthermore, Campbell cites to no
authority under which any and all diagnoses of schizophrenia result
in a lack of mental capacity or a mental disease or defect as those
terms are used in the law.
In addition, we observe that Campbell's counsel made a motion
on Campbell's behalf regarding diminished capacity at the
sentencing hearing. Marla North, who had performed Campbell's
presentence sex offender evaluation, filed a report and testified.
Apparently based on counsel's motion and Ms. North's evidence, the
District Court determined, for sentencing purposes, that Campbell's
mental capacity was significantly impaired at the time he committed
the offenses; it did so in the context of deciding not to apply the
mandatory minimum sentence ordinarily required upon conviction for
the offense of sexual intercourse without consent against a victim

"less than 16 years old [when] the offender is 3 or more years

19
older than the victim .'I See § 45-5-503(3) (a), MCA.
Pursuant to § 46-18-222(2), MCA, mandatory minimum sentences do not
apply if
the defendant's mental capacity, at the time of the
commission of the offense for which the defendant is to
be sentenced, was significantly impaired, although not so
impaired as to constitute a defense to the prosecution.
Nothing in this additional evidence of record regarding Campbell's
mental capacity supports his conclusory allegation that the absence
of a psychological evaluation prejudiced him and prevented him from
having a fair trial. - -I 901 P.2d at 59.
See Baker Nor does anything
of record establish a reasonable probability that a psychological
evaluation would have produced a different result in this case.
See Baker, 901 P.2d at 59. Therefore, we conclude that Campbell
has not established prejudice with regard to his counsel's failure
to obtain a psychological evaluation.
C. Presentence Sex Offender Evaluation
Campbell's final allegation of ineffective assistance of
counsel relates to counsel's failure to object to Ms. North, who
had evaluated the victims of the offenses and testified for the
State at trial, performing the presentence sex offender evaluation.
As a general rule, defense counsel's use of objections lies within
his or her discretion; in the context of an ineffective assistance
claim, a "failure to object must, in addition to being error, also
prejudice the defendant." State v. Hurlbert (1988), 232 Mont. 115,
120, 756 P.2d 1110, 1113 (citations omitted).
The record reflects that the District Court ordered Campbell's
counsel to make the arrangements for the presentence sex offender
20
evaluation and that counsel chose to have Ms. North perform the
evaluation. We need not speculate regarding whether counsel's
affirmative choice could have constituted deficient performance
under the first Strickland prong, because it is clear that Campbell
has not established the prejudice prong of the Strickland test.
Campbell alleges that "it seems reasonable to assume that [Ms.
North's1 objectivity in conducting the evaluation of the defendant
might well have been compromised." At best, this allegation--which
is premised on both an assumption and a "might have"--can be
characterized as conclusory, and conclusory allegations are
insufficient to meet a defendant's burden in establishing
ineffective assistance of counsel. See Hurlbert, 756 P.2d at 1113.
Moreover, as discussed above, the District Court apparently relied
on Ms. North's confidential report and testimony at the sentencing
hearing in excepting Campbell from the mandatory minimum sentences
which ordinarily would have attached upon his conviction of sexual
intercourse without consent against L.D. and A.D. Thus, we
conclude that Campbell has not established that having Ms. North
perform the presentence sex offender evaluation prejudiced him.
In summary, we decline to address Campbell's claim of
ineffective assistance based on his counsel's failure to
independently investigate the offenses with which he was charged.
With regard to Campbell's ineffective assistance allegations
relating to mental state and mental capacity, and counsel's failure
to object to Ms. North performing the presentence sex offender
evaluation, we conclude that Campbell has not met his burden under

21
the Strickland test. As to these latter claims, therefore, we hold
that Campbell was not denied effective assis,tance of counsel.
5. Did the District Court err regarding either its order
for a psychological examination or a determination that
Campbell was indigent?
Campbell advances several abbreviated, and largely
unsupported, arguments asserting error by the District Court,
rather than by counsel, relating to the ordered psychological
examination and his alleged indigency. We address each in turn.
We observe, first, that the issue statement under which the
arguments referenced immediately above are set forth states that
the trial court erred in failing to order psychological evaluations
prior to trial. This "issue statement" is not developed and, in
any event, mischaracterizes the record. As discussed above in
issue 4b, the District Court did, by Minute Entry, order both a §
46-14-202, MCA, examination and a sex offender evaluation; its
subsequent written order was specifically for the sex offender
evaluation, but indicated that a 5 46-14-202, MCA, examination
would be ordered if required. Moreover, Campbell concedes that the
court ordered the requested evaluation.
Next, Campbell argues that, in light of the District Court's
order for an evaluation of his mental competency, the court erred
in failing to ensure that its order was carried out. He relies on
§§ 46-14-202(l) and (4), MCA, and State v. Bartlett (1995), 271
Mont. 429, 898 P.2d 98.
Section 46-14-202(l), MCA, provides that, if a defendant or
defense counsel files a written motion requesting an examination or

22
if the issue of a defendant's fitness to proceed is raised by the
court, the prosecution or defense counsel, the district court
"shall appoint" a qualified professional to examine and report on
the defendant's mental condition. The language of the statute is
mandatory on its face and we have so held. See Bartlett, 898 P.2d
at 100. We reversed the trial court's denial of a 5 46-14-202,
MCA, motion for examination in Bartlett, observing that the
statute, which originally had vested a measure of discretion in the
trial court regarding the grant or denial of such a motion, is now
compulsory. Bartlett, 898 P.2d at 100.
In the present case, Campbell's counsel filed a written motion
for an examination pursuant to § 46-14-202, MCA, and the District
Court granted the motion, as required by the statute and Bartlett.
In arguing that the court erred "in failing to follow up on its own
order," Campbell seeks to place an affirmative duty on the trial
court to "enforce" the order granting defense counsel's motion.
Nothing in 5 46-14-202(l), MCA, or Bartlett imposes such an
obligation.
Campbell argues separately that the District Court was
required, sua soonte, to determine that Campbell was indigent for
purposes of obtaining the examination without cost to Campbell or
his family. He relies on the portion of § 46-14-202(4), MCA, which
provides that
[ilf the defendant is indigent . . . , the cost of the
examination must be paid by the county or the state, or
both, according to procedures established under 3-5-
902 (1) .

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Nothing in 5 46-14-202(4), MCA, requires, or even suggests, that a
district court must sua soonte raise and determine the question of
a defendant's indigency upon a motion for examination thereunder.
Nor does Campbell cite to any authority imposing such a
requirement.
Moreover, in the present case, no showing was made that
Campbell was indigent for purposes of obtaining the examination at
county or state expense under § 46-14-202(4), MCA. No
determination of indigency had been requested or made for purposes
of court-appointed counsel under § 46-8-111, MCA, and, indeed, the
motion for examination pursuant to § 46-14-202(l), MCA,
specifically was premised on payment by Campbell or his mother. We
cannot ascribe error to a district court for failing to take an
action neither requested by the party nor required by the law.
We conclude that the District Court did not err in failing to
enforce its order for a psychological examination. We further
conclude that the court did not err in failing to determine, sua
suonte, that Campbell was indigent for purposes of that
examination.
Affirmed.

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We concur:

Justices

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