NO. 95-160
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
WARREN DEAN BROWN,
Petitioner and Appellant,
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kevin E. Vainio, Attorney at Law,
Butte, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General
Elizabeth Griffing, Ass't Attorney General
Helena, Montana
Carolyn A. Clemens, Deputy County Attorney,
Helena, Montana
Submitted on Briefs: March 7, 1996
Decided: July 26, 1996
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Warren Dean Brown (Brown) appeals from the order and judgment
entered by the First Judicial District Court, Lewis and Clark
County, denying his petition for postconviction relief. We affirm.
We address the following dispositive issues:,
1. Did the District Court err in concluding that Brown was
not denied effective assistance of counsel at trial?
2. Did the District Court err in concluding that Brown was
not denied effective assistance of counsel on appeal?
3. Did the District Court err in concluding that the claimed
violations of Brown's privilege against self-incrimination and his
right to be free from unreasonable searches were not properly
before it?
In 1988, the State of Montana (State) charged that Brown had
committed the offense of felony assault by purposely or knowingly
causing bodily injury to Kathie Brown (Kathie) by striking her in
the head with a handgun. The charge arose out of a domestic
dispute between Brown and his wife Kathie, who had been separated
for approximately one month at the time. According to Kathie's
testimony, she and Brown got into an argument and Brown slapped her
in the face and hit her in the nose with his fist, causing her nose
to bleed. Brown held his pocket knife to her neck while forcing
her to clean the blood from the floor and then elongated a wire
coat hanger, wrapped it around her wrist and led her around by it.
Subsequently, Brown removed a .22 caliber pistol from a cardboard
file in the bedroom, loaded it and pointed it at her; thereafter,
he struck her several times with the gun, at least once on the
2
forehead and then on the top of her head. Kathie escaped with one
of the couple's children and Brown took the other child back into
his apartment. Officers arrested Brown in his bedroom some hours
later and, when asked where the gun was, he directed them to the
.22 pistol located in the file cabinet.
Brown also testified at trial. He acknowledged having an
argument with Kathie, but denied slapping her, putting a knife to
her throat, leading her around the apartment with a coat hanger and
pistol-whipping her. He admitted that she got a bloody nose, but
offered a much more innocent explanation than Kathie's about how it
occurred. He testified that he willingly gave the police the
pistol, which he was in the process of refurbishing and which
lacked part of the firing mechanism.
Brown was convicted and sentenced to ten years in prison, with
five years suspended, for the felony assault and another ten years
in prison, with five years suspended, for use of a weapon in the
assault. We affirmed the conviction on appeal, concluding that
substantial evidence established the essential elements of felony
assault. See State v. Brown (1989), 239 Mont. 453, 457, 781 P.2d
281, 284.
Brown petitioned the District Court for postconviction relief
in 1993. Among,other things, he contended that his conviction was
based on evidence which violated his Fifth Amendment privilege
against self-incrimination and on other evidence obtained via
searches which violated his Fourth Amendment rights, and that he
3
was denied effective assistance of counsel both at trial and on
appeal. The District Court denied the petition and Brown appealed.
1. Did the District Court err in concluding that Brown was
not denied effective assistance of counsel at trial?
Brown's petition for postconviction relief and supporting
affidavit alleged that deficiencies in the performance of his trial
counsel, Edmund F. Sheehy, Jr. (Sheehy), resulted in Brown being
denied effective assistance of counsel at trial. In responding to
Brown's petition, the State submitted Sheehy's sworn affidavit
addressing Brown's allegations.
The District Court held a hearing on Brown's petition. Brown
testified but d~id not call Sheehy as a witness in order to examine
him regarding his affidavit. The court subsequently determined
that Sheehy's performance was not deficient and concluded that
Brown was not denied effective assistance of counsel at trial. We
review a district court's denial of a petition for postconviction
relief to determine whether substantial evidence supports the
district court's findings and whether its conclusions of law are
correct. State v. Baker (1995), 272 Mont. 273, 280, 901 P.2d 54,
58 (citing Walker v. State (1993), 261 Mont. 1, 6, 862 P.Zd 1, 4).
A petitioner seeking to reverse a district court's denial of
a petition for postconviction relief based on a claim of
ineffective assistance of counsel bears a heavy burden. Baker, 901
P.2d at 59. We apply the two-part test originally set forth in
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674, in evaluating a petitioner's claim of ineffective
assistance of counsel. Baker
-I 901 P.Zd at 59; Walker, 862 P.2d at
4
4. Under the first Strickland prong, the petitioner must establish
that counsel 's performance was deficient pursuant to the
"reasonably effective assistance ' test; if counsel acted within the
range of competence demanded of attorneys in criminal cases, the
performance rendered 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
On Top v. State (1995), 273 Mont. 32, 49, 901 P.2d 1368, 1379
(citing Strickland, 466 U.S. at 688-89).
To satisfy the second Strickland prong, the petitioner must
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
counsel's deficient performance, the outcome of the trial would
have been different. Baker
-I 901 P.2d at 59. A petitioner must
establish both deficient performance and prejudice to prevail on a
postconviction claim of ineffective assistance of counsel, and this
Court will not second-guess trial tactics and strategy. Baker, 901
P.2d at 59.
Brown argues that Sheehy's representation of him was deficient
in the following regards:
a. Sheehy did not move to suppress, or otherwise attempt to
exclude from evidence, Brown's statements to the arresting officers
about the location of the handgun and the handgun itself, and did
not object to the late endorsement of the State's expert witnesses
5
from the Montana State Crime Laboratory (Crime Lab) who examined
the handgun:
b. Sheehy did not move to suppress, or otherwise attempt to
exclude from evidence, a coat hanger and pocket knife; and
c. Sheehy did not communicate with him regarding these
decisions
Brown asserts that these deficiencies in Sheehy's performance
prejudiced him and deprived him of a fair trial. We address
Brown's contentions in turn.
a. The statements, handgun and expert
testimony
It is undisputed that, at the time of Brown's arrest, he was
questioned regarding the whereabouts of the handgun prior to being
informed of his rights under Miranda v. Arizona (1966), 384 U.S.
436, 86 s.ct. 1602, 16 L.Ed.Zd 694. Brown told the officers that
the weapon was in his file cabinet and the officers located it
there.
Sheehy did not move to suppress either Brown's statements
regarding the location of the handgun or the handgun itself. Both
were admitted into evidence at trial without objection by Sheehy.
The State submitted the handgun to the Crime Lab for
examination by a firearms expert, William Newhouse (Newhouse), and
a serologist, Julie Long (Long) The State moved for the
endorsement of Newhouse and Long as witnesses on July 7, 1988, four
days before trial, noting Sheehy's lack of objection in its motion.
The handgun was manufactured in the late 1800s and was missing
its trigger. Kathie and Brown had found it in pieces in the trash
6
and Brown had been refurbishing it. Kathie testified that Brown
and a friend had fired the handgun once while "playing around" with
it and that, in addition to hitting her with it, he also threatened
to shoot her if she did not do as she was told by Brown. Brown
testified that he had never fired the handgun, that it would be
very dangerous to fire it and that he had not gone near the handgun
on the evening in question. He also testified that he had not
cleaned the gun properly after finding it and that that could
explain the spot of blood in the center of the underside of the
barrel.
Newhouse testified that the handgun was capable of firing a
bullet, notwithstanding the absence of both a trigger and a cocking
mechanism. He further testified that he had fired the handgun two
times.
Long testified that the handgun had a small amount of blood on
it and that the blood was human in origin. She further testified
that there was not enough blood on the handgun for her to determine
whether the blood was, in fact, Kathie's. Sheehy did not object to
the admission of either expert's testimony.
Brown contends that his statements, the handgun and the expert
testimony were used effectively by the prosecution in convicting
him. On that basis, he argues that Sheehy's failure to file
motions or make objections to exclude them was unwise, did not gain
him any advantage and constitutes ineffective assistance of
counsel.
The District Court found that Sheehy's performance before and
during trial was not deficient but, rather, that Sheehy made
certain strategic choices based on the evidence as he saw it.
Sheehy's affidavit sets forth his tactical reasons for not
attempting to exclude Brown's statements or the handgun itself at
some length. His overall strategy involved attempting to discredit
Kathie's testimony concerning the events in question by arguing
that, had Brown actually hit Kathie on the head with the handgun
and pointed it at her, as Kathie described, he would have hid it
rather than placing it in the file cabinet and would not have told
the officers where to find it. Sheehy also attempted to use the
handgun to discredit Kathie by arguing that, if Brown had struck
her on the head with the handgun as she described, there would have
been much more blood on the handgun than the small amount that was
not even identifiable as Kathie's. In short, Sheehy attempted to
affirmatively use the handgun, and Brown's cooperation in directing
the officers to it, to buttress Brown's position that the assault
never occurred and to undermine Kathie's version of the events. In
this regard, Brown testified at the hearing on his petition that he
understood that the trial would turn, in large part, on Kathie's
credibility versus his own.
Sheehy's affidavit also discusses his reasons for not
objecting to the late endorsement of Newhouse and Long as expert
witnesses for the State. According to Sheehy, Brown told him that
the handgun would not discharge safely and, as a result, Sheehy
felt it needed to be test-fired. Furthermore, it was Sheehy's
opinion that the spot on the handgun should be tested to determine
whether it was merely rust, rather than blood, in hopes of negating
Kathie's version of the events altogether. As it turned out, the
spot was blood, but not identifiable as Kathie's, and Sheehy used
that fact in attempting to undermine her testimony.
Again, as with Brown's statements and the handgun itself,
Sheehy's lack of objection to both the late endorsement of Newhouse
and Long as witnesses and their testimony at trial was part of his
OVerall strategy of attempting to discredit Kathie and her
testimony. We do not second-guess trial tactics and strategy.
Baker, 901 P.Zd at 59.
Finally, in this regard, Brown contends that Sheehy's tactical
decisions were unwise and did not gain him any advantage. Brown
cites to no authority for his position that the extent to which
trial counsel's tactics and strategy ultimately are successful
properly impacts on a court's evaluation of whether counsel's
performance was deficient, and we are aware of none.
We conclude that substantial evidence supports the District
Court's finding that Sheehy's decisions regarding Brown's
statements, the handgun, and the State's expert witnesses were
based on his trial strategy and, therefore, do not constitute
deficient performance.
b. The coat hanger and pocket knife
At trial, the State introduced the coat hanger Kathie alleged
Brown had wrapped around her wrist and used to lead her around the
apartment, as well as the pocket knife Brown allegedly had held to
9
her throat, during the assault. Kathie had provided these items to
the State.
Kathie and Brown were separated when the assault occurred and
she did not have a key to Brown's apartment. Kathie testified that
she entered Brown's apartment twice after his arrest. She entered
through a window on the first occasion and recovered Brown's keys
to the apartment and the hanger. She testified that, at the
request of the Helena Police Department, she entered the apartment
again to retrieve Brown's knife. Sheehy did not move to suppress,
or otherwise object to the admission of, these items.
Brown contends it was undisputed at trial that Kathie obtained
both the hanger and the knife by entering Brown's apartment without
Brown's permission and that she retrieved the knife at the request
of the Helena Police Department. He argues, therefore, that
Sheehy's failure to move to suppress evidence resulting from
searches he contends were unlawful under the Fourth Amendment
constitutes ineffective assistance of counsel.
According to Sheehy, he personally investigated Kathie's claim
that she had conducted the search for the knife at the request of
the Helena Police Department and concluded that no such request had
been made. Had he concluded otherwise, he would have considered a
motion to suppress the knife. He intended to argue that Kathie's
story regarding the law enforcement request to enter Brown's
apartment to retrieve evidence was inherently unbelievable and
thereby use it to attack her credibility as a witness. Indeed,
Sheehy's strategy was to use Kathie's testimony in this regard to
10
argue that all of her testimony should be rejected due to her lack
of truthfulness on this material matter. Once again, Brown asks us
to second-guess Sheehy's trial strategy. We refuse to do so. See
Baker, 901 P.2d at 59.
We conclude that substantial evidence supports the District
Court's finding that Sheehy's decisions regarding the hanger and
the knife were based on his trial strategy and, therefore, do not
constitute deficient performance.
c. Lack of communication and consultation
Brown also alleges on appeal that Sheehy did not consult or
communicate with him regarding the tactical and strategic decisions
not to move to suppress, or otherwise object to the admission of,
the evidence resulting from the alleged violations of his Fifth and
Fourth Amendment rights. He asserts that Sheehy's lack of
communication in these regards is undisputed and that the lack of
communication constitutes ineffective assistance of counsel.
We observe at the outset that these alleged deficiencies in
communication were not set forth in either Brown's original
petition for postconviction relief, his amended petition or his
supporting affidavit. Nor were they addressed in Brown's
supporting memorandum. They arose only via passing reference
during Brown's testimony at the hearing on his petition. Thus,
while Brown's allegations in this regard are undisputed, that is so
because they were not raised in his petition or supporting
documents. Presumably for that reason, the District Court did not
11
address them in denying the petition and the State does not address
them on appeal.
Section 46-21-105(l), MCA, provides that all grounds for
relief under § 46-21-101, MCA, must be raised in the petitioner's
original or amended petition and that grounds for relief not raised
generally are waived. Brown did not raise these specific
allegations of deficient performance by Sheehy in his original or
amended petition and, as a result, they are waived and procedurally
barred. Section 46-21-105, MCA; see Baker, 901 P.2d at 58. In
addition, because this is a direct appeal from the District Court's
denial of Brown's petition for postconviction relief, we decline to
address these allegations of ineffective assistance of counsel not
first properly raised in the trial court. Baker , 901 P.2d at 58.
Because Brown did not establish the deficient performance
prong of the Strickland test, we need not address the prejudice
prong. We hold, therefore, that the District Court correctly
concluded that Brown was not denied effective assistance of counsel
at trial.
2. Did the District Court err in concluding that Brown was
not denied effective assistance of counsel on appeal?
Randi M. Hood (Hood), chief public defender for Lewis and
Clark County, represented Brown on appeal. She raised the issue of
whether there was sufficient evidence to support Brown's felony
assault conviction. Brown
-I 781 P.2d at 282.
Brown's petition for postconviction relief alleged denial of
effective assistance of counsel on appeal. Specifically, he
alleged that Hood's performance was deficient in that she failed to
12
raise issues that he requested, including the substantive issues of
Fifth and Fourth Amendment violations resulting in admission of the
gun, hanger and knife and a claim of ineffective assistance of
trial counsel. Brown also contended that Hood was deficient in
failing to provide him with an opportunity for input regarding his
appellate brief before it was filed. In responding to Brown's
petition, the State submitted Hood's sworn affidavit addressing
Brown's allegations regarding her representation on appeal. Brown
did not call Hood as a witness at the hearing on his petition.
The District Court found that Hood had determined that the
issues Brown wished to raise were either not supported by the
record or not relevant. The court also found that, after
discussion of the chances of success regarding the issues Brown
wanted to raise, Brown agreed with Hood that only the issue
regarding sufficiency of the evidence to support the felony charge
should be pursued. Finally, the court found that Hood mailed Brown
a copy of the appellate brief, together with an explanatory letter,
before she filed the brief. Based on these findings, the District
Court found that Hood's performance was not deficient and that
Brown was not denied effective assistance of counsel on appeal. As
discussed above, we review the court's findings to determine
whether they are supported by substantial evidence; we review the
court's conclusions to determine whether its interpretation of the
law is correct. Baker
-I 901 P.2d at 58.
With regard to the substantive issues of whether Brown's Fifth
and Fourth Amendment rights were violated and whether, as a result,
13
Brown's statements, the handgun and the pocket knife were
excludable, Hood determined that the issues were not preserved by
motion or objection at trial. Therefore, as Hood explained to
Brown, they could not be raised for the first time on appeal absent
the ability to meet the requirements of § 46-20-701, MCA, which
could not be met in this case. Hood's interpretation of the law in
this regard was correct. See State v. Weeks (1995), 270 Mont. 63,
86, 891 P.2d 477, 491 (citation omitted). We have indicated
repeatedly that, where counsel properly interprets the law,
counsel's performance is not deficient as a matter of law. _,
See
e.q., Baker, 901 P.2d at 60-61; State v. Hildreth (1994), 267 Mont.
423, 432, 884 P.2d 771, 777; State v. Brady (1991), 249 Mont. 290,
297, 816 P.2d 413, 417.
Hood also considered Brown's assertion that he had been denied
effective assistance of counsel at trial with regard to the
allegedly excludable matters, examined the trial record and
informed herself about the current law on ineffective assistance of
counsel. She concluded that Sheehy decided not to move to
suppress, or object to admission of, the evidence in furtherance of
his overall trial strategy and that such tactical decisions would
not successfully support an ineffective assistance of counsel
claim. Given our affirmance of the District Court's conclusion to
that effect above, it is clear that Hood's analysis of this issue
was correct. Therefore, Hood's performance in this regard was not
deficient. See Baker
-I 901 P.2d at 60-61; Hildreth, 884 P.2d at
777; Brady, 816 P.2d at 417.
14
Finally, with regard to Brown's contention that Hood did not
provide him with an opportunity for input into his appellate brief,
Hood appended to her affidavit a letter she sent to Brown with a
draft of the appellate brief. Hood advised Brown in the letter
regarding when she intended to file the brief and she stated in her
affidavit that he did not contact her about the brief. Brown's
argument in this regard essentially requests this Court to reweigh
the evidence, determine that he is more credible than Hood, and
make findings different from those made by the District Court.
However, in matters such as these where the District Court is
acting as the trier of fact, it is that court's function to resolve
conflicts in the evidence and we will not substitute our judgment
for that of the District Court. See In re Marriage of Starks
(19931, 259 Mont. 138, 143, 855 P.2d 527, 530 (citations omitted).
We conclude that substantial evidence supports the District
Court's finding that Hood's performance was not deficient. Because
Brown did not establish the deficient performance prong of the
Strickland test, we need not address the prejudice prong. We hold,
therefore, that the District Court correctly concluded that Brown
was not denied effective assistance of counsel on appeal.
3. Did the District Court err in concluding that the claimed
violations of Brown's privilege against self-incrimination and his
right to be free from unreasonable searches were not properly
before it?
In addition to his claims of ineffective assistance of
counsel, Brown's petition for postconviction relief asserted
violations of his Fifth Amendment privilege against self-
incrimination, which related to his non-Mirandized statements about
15
the location of the handgun and the handgun itself, and his Fourth
Amendment right to be free from unreasonable searches, which
related to the hanger and knife admitted into evidence as a result
of Kathie's allegedly illegal searches. While these asserted
constitutional violations were neither preserved at trial nor
raised on direct appeal, Brown contended they should be determined
substantively in his postconviction proceeding. The District Court
concluded that, except insofar as these matters related to Brown's
ineffective assistance of counsel claims, they were procedurally
barred by § 46-21-105(2), MCA, and not properly before it. We will
not overturn a district court's conclusion of law if the court's
interpretation of the law is correct. Baker , 901 P.2d at 58
(citation omitted).
A petition for postconviction relief is a statutory proceeding
in which certain alleged errors may be raised by a "person adjudged
guilty of an offense in a court of record who has no adequate
remedy of appeal. .'I Section 46-21-101(l), MCA. However,
[wlhen a petitioner has been afforded a direct appeal of
the petitioner's conviction, grounds for relief that
could reasonably have been raised on direct appeal may
not be raised in the original or amended petition.
Section 46-21-105(2), MCA. In this case, Brown was afforded a
direct appeal and, as discussed above, these alleged constitutional
violations were not raised therein.
While Brown concedes that the referenced issues were not
raised in his direct appeal, he argues that the procedural bar
should not apply because he attempted to raise them but his
appellate counsel would not do so. As discussed above, Brown's
16
counsel on appeal properly analyzed whether to include the alleged
Fifth and Fourth Amendment violations as issues on appeal and
determined that, because they had not been preserved at trial, they
could not be raised on appeal. Moreover, the District Court found,
having weighed the conflicting evidence and determined the
credibility of Brown and Hood, that Brown agreed with Hood
regarding what issue should be raised on appeal. We will not
substitute our judgment for that of the trier of fact on such
matters. Marriaqe of Starks, 855 P.2d at 530.
Brown also suggests that Sheehy's failure to preserve these
issues for appeal via motion or objection should prevent
application of the procedural bar to foreclose substantive review.
We disagree.
We recently clarified the applicability of the statutory
procedural bar to issues not preserved for appeal at trial. In
Baker
-I the petitioner had appealed from his convictions and
sentences for three offenses and this Court had affirmed. Baker,
901 P.2d at 56. Thereafter, he filed a petition for postconviction
relief alleging ineffective assistance of trial counsel and
numerous other issues. We concluded that grounds for relief which,
in the language of § 46-21-105(2), MCA, "could reasonably have been
raised on direct appeal" included issues not properly preserved at
the trial level for appeal. Baker , 901 P.2d at 58 (citing State v.
Gorder (19901, 243 Mont. 333, 792 P.2d 370). On that basis, we
determined that certain of the petitioner's issues could have been
preserved at the trial level and, absent such preservation, the
17
sole means by which they could be raised in a postconviction
proceeding was via a claim of ineffective assistance of trial
counsel. Baker, 901 P.Zd at 58-59.
Baker is squarely on point and dispositive here. Trial
counsel having failed to preserve Fifth and Fourth Amendment
issues, those issues are barred from substantive determination on
a stand-alone basis in this postconviction proceeding. To the
extent authorized by Baker, Brown raised those issues in this
postconviction proceeding in the context of his ineffective
assistance claim against Sheehy and it was not necessary for us to
address them substantively in our resolution of that claim above.
Nor is Brown's reliance on Fitzpatrick v. State (1983), 206
Mont. 205, 671 P.Zd 1, and State v. Henricks (1983), 206 Mont. 469,
672 P.2d 20, for the proposition that he is entitled to a
substantive determination of the Fifth and Fourth Amendment issues
well placed. In Henricks, we relied on Fitzpatrick in determining
that we could consider issues in a postconviction proceeding which
could have been raised on direct appeal. Henricks, 672 P.2d at 23
(citing Fitzpatrick, 671 P.2d 1). We subsequently observed that
the Fitzpatrick postconviction relief proceeding was instituted
before the effective date of the procedural bar contained in § 46-
21-105(2), MCA, and, therefore, that Fitzpatrick was improperly
used as authority for our conclusion in Henricks. Kills on TOP,
901 P.2d at 1386. As a result, we overruled Henricks. Kills On
Iz.522, 901 P.2d at 1387.
18
We hold that the District Court did not err in concluding that
Brown's claimed violations of his privilege against self-
incrimination and his right to be free from unreasonable searches
were not properly before it.
Affirmed.
We concur:
Justices
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