No. 94-491
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
ANTONIO RUBIN LEYBA,
Defendant and Appellant.
APPEAL FROM: Di.strict Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable James E. Purcell, Judge presiding
COUNSEL OF RECORD:
For Appellant:
Ian Christopherson, Christopherson Law
Offices, Las Vegas, Nevada
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Cregg Coughlin, Assistant Attorney General,
Helena, Montana
Robert M. McCarthy, Silver Bow County
Attorney, Brad Newman, Deputy County Attorney,
Butte, Montana
Submitted on Briefs: November 30, 1995
Decided: January 9, 1996
Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.
Defendant Antonio R. Leyba appeals from a jury verdict of the
Second Judicial District Court, Silver Bow County, finding him
guilty of deliberate homicide. We affirm.
The issues on appeal are as follows:
1. Was the defendant denied the effective assistance of
counsel?
2. Did the District Court err in not instructing the jury sua
sponte on the elements of mitigated deliberate homicide?
3. Was there sufficient evidence to support the jury
verdict?
FACTS
On January 2, 1994, a Butte resident discovered that a group
of teenagers had held an unauthorized drinking party in his home
while he was away for the New Year's holiday. He later determined
that three of his rifles were missing and assumed the teenagers had
stolen them. He directed his son-in-law, defendant Antonio R.
Leyba, to see if he could find out the serial numbers on the
missing rifles. Actually the rifles had not been stolen by the
teenagers, but had been pawned by Leyba at the Mountain Man pawn
shop in Butte.
On the morning of January 3, 1994, a clerk in a store adjacent
to the pawn shop heard shouting and other noises coming from the
pawn shop. The clerk called the police after being told by a man
who had come into her shop that there was a "mess" next door. The
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two police officers who arrived on the scene discovered that the
pawn shop clerk, Charlie Miller, had been bludgeoned and stabbed to
death. There was a large amount of blood on the floor which
contained shoe prints. The officers discovered a handle from a
hatchet that appeared to have blood on it and eventually discovered
the head to the hatchet on a top shelf in the back room. Officers
also found a bloody fingerprint which the Forensic Sciences
Division of the Montana Department of Justice later positively
identified as Leyba's fingerprint.
When officers questioned Leyba, he told them he was at the
pawn shop on the morning of January 3, 1994, to get serial numbers
for rifles, but because the store was crowded he left to check with
other sport shops in town. After officers told Leyba about the
physical evidence they had collected, including bloody shoe prints
which matched his athletic shoes, and his bloody fingerprint, Leyba
changed his story. He said that he saw two men take Miller into
the back room and beat him up, but that after seeing the body he
decided to leave. After officers told Leyba his story was not
credible, he admitted the murder.
When officers searched Leyba's residence and vehicle they
discovered the rifles, a three-inch skinning knife, an eleven-inch
knife, one framing hammer, one claw hammer, athletic shoes and a
cordless telephone, all of which had human blood on them. Although
he admitted committing the murder, Leyba claimed he had acted in
self-defense. Leyba is 6' tall and weighs approximately 200
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pounds. He suffered no wounds in the altercation. Miller, who was
approximately 5'4" tall and weighed 135 pounds, suffered various
defensive wounds to his hands and wrists in addition to the fatal
blows.
On January 27, 1994, Leyba was charged with deliberate
homicide pursuant to § 45-5-102(l) (a), MCA (1993). On June 20-23,
1994, he was tried by a jury and found guilty. He was sentenced to
100 years in prison, plus an additional 10 years for the use of
dangerous weapons in commission of the offense, with 25 years
suspended. The District Court denied Leyba's post-trial motion to
alter or amend the judgment and this appeal followed.
ISSUE 1
Was the defendant denied the effective assistance of counsel?
Leyba claims his Sixth Amendment right to effective assistance
of counsel was violated because his defense counsel only offered a
deliberate homicide jury instruction. On appeal, Leyba contends
his defense was based on mitigating circumstances and his defense
counsel should have offered an instruction which would have allowed
the jury to consider whether he was guilty of mitigated deliberate
homicide.
We review claims of ineffective assistance of counsel based on
a two-part test set forth in Strickland v. Washington (1984), 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The defendant must
first establish that counsel's performance was deficient in that
counsel did not act within the range of competence demanded of
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attorneys in criminal cases. Strickland, 466 U.S. at 687; Walker
v. State (1993), 261 Mont. 1, 6, 862 P.2d 1, 4; State v. Senn
(1990), 244 Mont. 56, 59, 795 P.2d 973, 975. To satisfy the second
prong of the test, the defendant must establish that the deficient
performance prejudiced him so as to deprive him of a fair trial.
Strickland, 466 U.S. at 687; Walker, 862 P.2d at 4. The defendant
must prove both elements of the test and the burden is heavy on a
defendant seeking to reverse a judgment on the grounds of
ineffective assistance of counsel. Walker, 862 P.2d at 4 (citing
State v. McColley (1991), 247 Mont. 524, 526, 807 P.2d 1358, 1360).
We addressed a claim similar to Leyba's in State v. Sheppard
(1995), 270 Mont. 122, 890 P.2d 754 (Sheuuard II). After we
affirmed the defendant's conviction for sexual intercourse without
consent in State v. Sheppard (1992), 253 Mont. 118, 832 P.2d 370
(Sheppard I), the defendant sought post-conviction relief in the
district court. Sheppard claimed ineffective assistance of counsel
because his attorney failed to offer a jury instruction on a lesser
offense. In affirming the district court's denial of post-
conviction relief, we stated that "when defense counsel makes a
tactical decision to forgo an instruction that is inconsistent with
the defense, we will not find error supporting an ineffective
assistance of counsel claim." Shevpard II, 890 P.2d at 758 (citing
State v. Johnson (1993), 257 Mont. 157, 163, 848 P.2d 496, 499).
Furthermore, we have stated that in order to constitute ineffective
assistance, acts of counsel "must stem from neglect or ignorance
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rather than from informed, professional deliberation." State v.
Paulson (1991), 250 Mont. 32, 44, 817 P.Zd 1137, 1144-45.
The record indicates that Leyba's defense at trial was that he
killed Miller in self-defense. Defense counsel provided notice to
the State that he would rely on a self-defense theory and that the
issue for the jury would be whether the use of force by Leyba was
justified. Defense counsel presented witnesses who testified that
Leyba was a peaceful person and a good father and husband.
Witnesses testified that Miller was in a bad mood on the morning he
was killed. Defense counsel presented psychological testimony to
explain that Leyba was faced with a "fight or flight" response to
a life-threatening situation. Leyba claimed the brutal killing was
an emotionally charged response to a violent attack by Miller. All
of this evidence was consistent with Leyba's self-defense claim
Leyba also made it clear to the District Court that he did not
want the jury to consider the mitigated deliberate homicide
instructions. After the State had requested that the mitigated
deliberate homicide instructions be withdrawn, the following
exchange took place:
DEFENSE COUNSEL: I've spoken about this with my client,
and we agree those will be withdrawn and we will not
offer a mitigated deliberate --
TONY LEYBA: I want it deliberate. If they are going to
find me guilty, I want it deliberate.
The District Court then withdrew the mitigated deliberate homicide
instructions.
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Leyba and his attorney made a tactical decision to seek
absolute acquittal on the theory of self-defense. Such a decision
was consistent with Leyba's theory of self-defense and was a trial
strategy based on informed professional deliberation. It was not
the result of neglect or deficient performance on the part of
defense counsel.
A similar situation was presented in Bashor v. Risley (9th
Cir. 1984), 730 F.2d 1228, cerf.denied (1984), 469 U.S. 838, where a
defendant convicted of deliberate homicide argued that his trial
counsel was ineffective for failing to give the jury the option of
convicting him of negligent or mitigated deliberate homicide. In
rejecting his argument, the Ninth Circuit stated as follows:
It is true that counsel did not offer a negligent
homicide instruction and that he objected to the
mitigated deliberate homicide instruction. The record
discloses that counsel did so not out of ignorance of the
law but as the result of a tactical decision that the
jury should be forced to the choice of finding Bashor
guilty of deliberate homicide or acquitting him outright.
With the benefit of hindsight we know that this strategy
was incorrect; however, it did not constitute ineffective
assistance of counsel.
Bashor, 730 F.2d at 1241.
Now that hindsight demonstrates his trial strategy was not
successful, Leyba seeks a second opportunity to try the case under
a different theory. We will not, however, second-guess trial
tactics and strategy. Walker, 862 P.2d at 4; State v. Johnson
(1993), 257 Mont,. 157, 163, 848 P.2d 496, 499. The performance of
Leyba's counsel was not deficient and was within the range of
competence demanded of attorneys in criminal cases.
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Having determined that Leyba's claim does not satisfy the
first element of the Strickland test, it is unnecessary to analyze
the second element of the test. We conclude that Leyba was not
denied his constitutional right to effective assistance of counsel.
ISSUE 2
Did the District Court err in not instructing the jury suasponte
on the elements of mitigated deliberate homicide?
We review j.ury instructions in criminal cases to determine
whether the instructions, as a whole, fully and fairly instruct the
jury on the law applicable to the case. State v. Long (Mont.
19951, 52 St. Rep. 1204, 1205. See also State v. Brandon (1994),
264 Mont. 231, 237, 870 P.2d 734, 737 (citing State v. Lundblade
(1981), 191 Mont. 526, 529-30, 625 P.2d 545, 548).
Leyba claims it was error for the District Court not to
instruct the jury suasponte on the elements of mitigated deliberate
homicide. He contends that the jury was faced with an all or
nothing choice between conviction and acquittal. Leyba relies on
Beck v. Alabama (1980), 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d
392, to argue tha,t the evidence clearly weighs toward the mitigated
charge and failure of the District Court to so instruct the jury
violated his due process rights. However, in Beck the issue was an
Alabama statute which prohibited the jury from considering a lesser
included offense. Furthermore, four years following Beck the
Supreme Court stated that:
Although the Beck rule rests on the premise that a lesser
included offense instruction in a capital case is of
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benefit to the defendant, there may well be cases in
which the defendant will be confident enough that the
State has not proved capital murder that he will still
want to take his chances with the jury. If so, we see
little reason to require him . . to give the State what
he perceives as an advantage--an opportunity to convict
him of a lesser offense if it fails to persuade the jury
that he is guilty of capital murder.
Spaziano v. Florida (1984), 468 U.S. 447, 456-57, 104 S. Ct. 3154,
3160, 82 L. Ed. 2d 340, 350.
In ShenuardL, the defendant, like Leyba, argued that the
district court should have instructed the jury suasponte on a lesser
offense. There we stated that, upon request, a defendant is
entitled to an instruction about a lesser offense if the evidence
would permit a jury to find him guilty of the lesser offense and
acquit him of the greater. Sheppard I, 832 P.2d at 373. The rule
in Montana and in the majority of states is that if a request for
such an instruction is not made, the appellate court will not
overturn the conviction absent plain error. Shenuard I, 832 P.2d
at 373. We held that
the prosecution and defense must have the option of
foregoing a lesser charge instruction for strategic
reasons. . . . [Mlandatory sua sponte jury instruction on
lesser offenses is inconsistent with Montana law and our
public policy of allowing trial counsel to conduct the
case according to his or her own strategy . . .
Shevpard I, 832 P.2d at 373.
In the present case, the record indicates that Leyba chose to
take his chances that the jury would not convict him of deliberate
homicide based on his theory of self-defense. Not only did Leyba
fail to object to the State's requested withdrawal of the mitigated
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deliberate homicide instructions, he stated on the record that if
the jury was to find him guilty, he wanted it deliberate. Unlike
&.&, where a state statute foreclosed the opportunity for the jury
to consider a lesser offense, Leyba voluntarily crafted his own
trial strategy to avoid the jury considering the lesser charge. He
cannot now with the benefit of hindsight be heard to complain that
the instructions were insufficient and that the result violates his
due process rights.
We conclude that, as a whole, the jury instructions fully and
fairly instructed the jury on the law applicable to the case. The
District Court did not err in failing to instruct the jury suasponte
on the offense of mitigated deliberate homicide.
ISSUE 3
Was there sufficient evidence to support the jury verdict?
We review the sufficiency of the evidence to determine
whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. State
v. Arlington (1994), 265 Mont. 127, 146, 875 P.2d 307, 318 (quoting
State v. Cyr (19871, 229 Mont. 337, 339, 746 P.2d 120, 122).
Leyba argues there was insufficient evidence to support the
jury verdict. He claims he did not have a motive to deliberately
plan the death of Miller, nor did he have the criminal intent to
kill Miller. Leyba's argument is based upon ~ensrea requirements
that are no longer the law in Montana.
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Section 45-5-102(l) (a), MCA (1993), provides that "[a] person
commits the offense of deliberate homicide if: (a) he purposely or
knowingly causes the death of another human being . . . .'I The
State is not required to prove motive, nor is it required to
establish that the killing was premeditated. We have stated:
The State need not establish a specific purpose to kill.
Nor must it show that death was the result of delibera-
tion other than the deliberation implicit within the
statutory definitions of "purposely" and "knowingly."
State v. Weinberger (1983), 204 Mont. 278, 289-90, 665 P.2d 202,
208-09 (citing State v. Sharbono (19771, 175 Mont. 373, 392, 563
P.2d 61, 72-73). If the act which causes the death is done
purposely or knowingly, deliberate homicide is committed even if
death is not the intended result. State v. McKimmie (1988), 232
Mont. 227, 231-32, 756 P.2d 1135, 1138 (citing State v. Sigler
(1984), 210 Mont. 248, 260, 688 P.2d 749, 755).
In Weinberaer, we cited the following Compiler's Comments to
5 45-5-102, MCA, and then stated:
" ' P u r p o s e l y ' is the most culpable mental
state and implies an objective or design to engage
in certain conduct, although not particularly toward some result.
'Knowingly' . . . refers to a state of mind in
which a person acts, while not toward a certain objective, at least
with jidl knowledge of relevant facts and circumstances. Together
these terms replace the concepts of malice and
intent . , . premeditation is no longer an element
of homicide . . . .'I
We agree. We have previously recognized the legislative
changes in the requirements of rne?lS rea. State v. Sharbono,
supra, 175 Mont. at 392-394, 563 P.2d at 72-73; Statev.
Coleman (1978), 177 Mont. 1, 30-31, 579 P.2d 732, 750,
cert. denied, 448 U.S. 914, 101 S.Ct. 34, 65 L.Ed.2d
1177. Here, defendant's objection to Instruction N . 11
O
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on the ground that it was incomplete is founded upon mans
reu requirements that are no longer the law in Montana.
Weinberqer, 665 P.Zd at 209. Leyba's arguments in regard to motive
and premeditation are therefore without merit.
Leyba goes on to argue that there was no direct evidence which
proved deliberate homicide. Evidence was presented to the jury
concerning Leyba's awareness and knowledge of his actions. Leyba
admitted to not liking Miller and to chasing him around the store.
The forensic evidence proved that Leyba bludgeoned Miller's head
with one or more blunt instruments, breaking the skull open "like
an eggshell." Miller's throat had been cut six times, cutting both
the carotid artery and his internal jugular vein. Leyba also
stabbed Miller nine times in the back when Miller was immobile.
Leyba then concealed the fact he had been at the pawn shop and did
not tell anyone he had been attacked by Miller.
When Leyba fled the murder scene he took four of the murder
weapons with him and concealed them in his vehicle. He washed
Miller's blood off his hands and face and removed his outer
clothing to conceal the fact that he had been involved in a brutal
attack. There was sufficient evidence for the jury to find that
Leyba acted knowingly, because even if death was not the intended
result, he was aware of the high probability that such a result
would be caused by his conduct. Section 45-2-101(33), MCA (1993).
The jury considered all the evidence presented, including
Leyba's own admission, his bloody fingerprint and shoe print, the
nature of the injuries, and his possession and concealment of the
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murder weapons. The jury did not find Leyba's theory of
self-defense credible. We conclude there was sufficient evidence
to support Leyba's conviction of deliberate homicide pursuant to
5 45-5-102(l) (a), MCA (19931, and affirm the jury's verdict and the
District Court's judqment and order on the matter.
Justi-
We concur:
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