97-119
No. 97-119
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Respondent,
v.
GORDON D. SELLNER,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
Honorable C. B. McNeil, Judge Presiding.
COUNSEL OF RECORD:
For Appellant:
Don Vernay, Big Fork, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General; Pamela P. Collins,
Assistant Attorney General, Helena, Montana
Deborah Kim Christopher, County Attorney; Mitchell A. Young,
Deputy County Attorney, Polson, Montana
Submitted on Briefs: December 16, 1997
Decided: December 29, 1997
Filed:
__________________________________________
Clerk
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-119%20Opinion.htm (1 of 10)4/18/2007 1:30:19 PM
97-119
Chief Justice J. A. Turnage delivered the Opinion of the Court
In proceedings before the Twentieth Judicial District Court, Lake County, Gordon
D. Sellner was charged with attempted deliberate homicide and criminal endangerment.
A jury found him guilty of attempted deliberate homicide, and he appeals. We
affirm.
Sellner argues that his trial counsel failed to request jury instructions on
attempted
mitigated deliberate homicide and aggravated assault as lesser included offenses,
thus
violating Sellner's right to effective assistance of counsel.
BACKGROUND
On the evening of June 27, 1992, a Lake County, Montana, resident called the
local sheriff's office to report that he had been assaulted at his home. He
identified John
Dorin as his assailant. Missoula County Deputy Sheriff Robert Parcell was the
closest
officer to the scene and the first to respond to the call.
Parcell drove first to Dorin's home and spoke with him. Dorin maintained that
he had been working at Sellner's sawmill that day and denied assaulting the victim.
Parcell then went to the victim's home, where the victim continued to maintain that
it was
Dorin who had assaulted him and identified Sellner as a witness. He also told
Parcell
that the assault had ended after his dog bit Dorin on the face. Two other law
enforce-
ment officers, also responding to the victim's phone call, arrived at the victim's
house.
The three officers returned to Dorin's home. After questioning him further and
noting
a wound on his cheek consistent with a dog bite, they arrested him. They then went
to
Sellner's house to get a statement from him.
Parcell did not know at that time that Sellner had not paid federal income
taxes for
nearly twenty years as a protest against abortion rights, or that Sellner did not
have a
driver's license because he believed that he had the right to refuse to enter such
contracts
with the government. As a result of the positions he had taken on those and other
matters, Sellner avoided contact with law enforcement.
Sellner was not home, but his wife told Parcell where he had gone and with
whom.
Because it was getting late and it was a stormy night, Parcell and the other officers
decided to wait until morning to find Sellner and interview him. As they drove away,
they saw the vehicle in which they believed Sellner was riding, on the road heading
toward Sellner's home. Activating his overhead lights, Parcell pulled the car over.
Sellner, who was a passenger in the vehicle, jumped out of the car and fled into the
woods. Parcell got out of his vehicle and shouted for Sellner to stop. On his way
into
the woods, Sellner turned and shot Parcell in the chest with the .41 caliber handgun
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-119%20Opinion.htm (2 of 10)4/18/2007 1:30:19 PM
97-119
which he carried with him. A brief exchange of gun fire ensued between Sellner and
Parcell, ending when Sellner fired into the air before taking off through the woods
toward
his home.
Because Parcell was wearing a bulletproof vest, he survived the shooting. The
force of the bullet created a gaping wound in his chest, however, and he was
transported
to the nearest hospital.
For over three years, Sellner remained at large but under surveillance. He was
finally arrested in a July 1995 undercover operation at his home. During
surveillance of
Sellner just before his arrest, he fired a gun into the woods where law enforcement
officers were stationed. That incident was the basis for the criminal endangerment
charge
of which the jury acquitted him.
Before trial, Sellner was referred by the court for a psychological evaluation
at the
Montana State Hospital. It was the opinion of the professionals at the State
Hospital that
Sellner did not suffer from a mental disease or defect and that he retained the
ability to
act with knowledge and purpose at the time of the charged conduct. Their report
concluded that when Sellner shot Parcell "he felt under extreme stress and may have
acted with poor judgment for that reason." However, the fearful state of mind
Sellner
reported when he shot Parcell was "not the result of mental disease or defect but is
better
understood in the context of his political/religious environment."
Sellner's trial lasted a full week. He testified on his own behalf that he shot
Parcell after he heard a voice in his head say, "He's got his flack jacket on.
Shoot him
in the chest and you won't hurt him." As noted above, the jury found him not guilty
of
criminal endangerment but guilty of attempted deliberate homicide. Stating its
intent "to
provide the maximum protection for the peace officers of this State," the court
sentenced
Sellner to life in prison plus ten years for use of a dangerous weapon.
Discussion
Did Sellner's trial counsel fail to request jury instructions on attempted
mitigated
deliberate homicide and aggravated assault as lesser included offenses, thus
violating
Sellner's right to effective assistance of counsel?
Claims of ineffective assistance of counsel are analyzed under the two-part
test set
forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674. To prove ineffective assistance of counsel, the defendant must first establish
that
his counsel's performance was not within the range of competence demanded of
attorneys
under similar circumstances. Strickland, 466 U.S. at 687. Second, the defendant
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-119%20Opinion.htm (3 of 10)4/18/2007 1:30:19 PM
97-119
must
show that but for the inadequate performance of his counsel, the result would have
been
different. Strickland, 466 U.S. at 694.
Sellner cites õ 46-16-607, MCA, which provides:
(1) The defendant may be found guilty of an offense necessarily
included in the offense charged or of an attempt to commit either the
offense charged or an offense necessarily included in the offense charged.
(2) A lesser included offense instruction must be given when there
is a proper request by one of the parties and the jury, based on the
evidence, could be warranted in finding the defendant guilty of a lesser
included offense.
(3) When a lesser included offense instruction is given, the court
shall instruct the jury that it must reach a verdict on the crime charged
before it may proceed to a lesser included offense. Upon request of the
defendant at the settling of instructions, the court shall instruct the jury
that
it may consider the lesser included offense if it is unable after reasonable
effort to reach a verdict on the greater offense.
Sellner contends that his trial counsel rendered ineffective assistance of counsel
in failing
to request jury instructions on aggravated assault and attempted mitigated deliberate
homicide as lesser included offenses to attempted deliberate homicide.
Notwithstanding Sellner's argument on appeal, the record demonstrates that
Sellner's trial counsel did request and offer instructions on attempted mitigated
deliberate
homicide, without objection by the State. The court gave the defense's offered
instructions on this subject as Jury Instruction Numbers 9, 10, and 11. Sellner's
argument that his trial counsel failed to offer jury instructions on attempted
mitigated
deliberate homicide is therefore completely baseless.
Attempted deliberate homicide requires proof that the defendant had the purpose
to cause the death of another human being and acted toward purposely or knowingly
causing the death of another human being. Sections 45-4-103 and 45-5-102, MCA.
"Purposely" means it was the defendant's conscious object to engage in that conduct
or
to cause that result. Section 45-2-101(63), MCA. A person acts knowingly with
respect
to a given result when the person is aware of a high probability that the result
will be
caused by the person's conduct. Section 45-2-101(34), MCA.
Aggravated assault is defined at õ 45-5-202(a), MCA: "A person commits the
offense of aggravated assault if the person purposely or knowingly causes serious
bodily
injury to another."
Sellner points out that in State v. Swan (1996), 279 Mont. 483, 928 P.2d 933,
this
Court interpreted õ 46-16-607, MCA, to require any lesser included offense
instruction
to be supported by the evidence introduced at trial. He argues that the evidence in
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-119%20Opinion.htm (4 of 10)4/18/2007 1:30:19 PM
97-119
this
case warranted and supported a lesser included offense instruction on aggravated
assault.
In Swan, this Court ruled that there was no proof that the performance of
defendant's counsel was deficient when counsel did not request a lesser included
offense
instruction on simple assault in a case in which the charge was aggravated assault.
Swan,
928 P.2d at 937. We noted that the permanent injuries inflicted on the victim,
including
scarring on his face, continuous tearing of one eye, and sagging of the eye, were
uncontested. We stated that defense counsel "properly interpreted the law in
determining
that there was not evidence to support a jury finding of the lesser included offense
of
assault." Swan, 928 P.2d at 937.
After briefing for this appeal was completed, this Court issued its opinion in
State
v. Castle (Mont. 1997), ___ P.2d ___, 54 St.Rep. 1194. In Castle, the Court held
that
assault is a lesser included offense of deliberate homicide, but that an instruction
on
assault must be given only when there is a basis from which a jury could rationally
conclude that the defendant is guilty of the lesser, but not the greater, offense.
Castle,
54 St.Rep. at 1196. In Castle, there was evidence that injuries inflicted by other
persons,
not the defendant, caused the victim's death, although it was conceded that Castle
caused
some injuries to the victim.
In the present case, the evidence introduced at trial would not have supported
the
giving of an instruction on aggravated assault. Unlike the defendant in Castle,
Sellner
unequivocally admitted that he, not any other persons, caused the injuries to the
victim.
Sellner testified that when he saw the flashing lights on the three vehicles, he
figured they
were a hit team hired by the government to "wipe me out," although his brother-in-
law,
who was driving, speculated aloud that perhaps they were being pulled over because he
had been speeding. Sellner admitted that he fired the first shot, believing that he
was in
a life-and-death situation. Sellner testified that he was lying on the ground as he
shot at
the silhouette of the officer who got out of the car, and that each time the officer
(Parcell)
fired back at him, he shot again, aiming for the chest.
The physician who treated Parcell in the emergency room testified that had
Parcell
not been wearing a bulletproof vest, there was a significant risk that the large-
caliber
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-119%20Opinion.htm (5 of 10)4/18/2007 1:30:19 PM
97-119
gunshot wound to his chest would have resulted in his death. Because Parcell was
more
than thirty miles from the nearest hospital when he was shot, the doctor testified,
the
bullet would have been lethal if Parcell had not been wearing the bulletproof vest.
A
forensics examiner testified that the bullet lodged in Parcell's bulletproof vest
was a .41
magnum soft-point bullet and that the purpose of the soft point is to cause more
destruction.
The evidence demonstrated that Sellner, a veteran of the Korean Conflict, was
experienced with weapons and could be expected to realize the effect of shooting a
person
in the chest with a .41 magnum soft-point bullet. From the evidence presented at
trial,
it would be irrational to conclude that Sellner's shooting of Parcell in the chest
with a
large caliber soft-point bullet was done with any intent other than to cause a
person's
death. Notwithstanding the argument of the dissent, Sellner's statement that a
voice told
him he would not hurt Parcell if he shot him in the chest would not have supported a
conviction of aggravated assault--if anything, it would have supported an
acquittal. We
conclude that no jury rationally could have found Sellner guilty of aggravated
assault but
not guilty of attempted deliberate homicide.
Counsel is not constitutionally required to present an argument which is
contrary
to the law and which would have been properly overruled. State v. Hildreth (1994),
267
Mont. 423, 884 P.2d 771. Because Sellner has failed to demonstrate that the
evidence
would have supported the giving of an aggravated assault instruction, he has not
established that his counsel's performance was outside the range of competence
demanded
of attorneys under similar circumstances. Therefore, we need not reach the second
prong
of the Strickland test, and Sellner's claim of ineffective assistance of counsel
fails.
Affirmed.
/S/ J. A. TURNAGE
We concur:
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
Justice James C. Nelson dissents.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-119%20Opinion.htm (6 of 10)4/18/2007 1:30:19 PM
97-119
While, for the reasons set forth in Justice Karla M. Gray's dissent, I did not
join
the majority in State v. Castle (Mont. 1997), ___ P.2d ___, 54 St. Rep. 1194, our
opinion in that case is, nevertheless, now the law of this State and, absent our
overruling
that decision, we are bound to follow it. Based upon Castle, I conclude that
Sellner's
trial counsel rendered ineffective assistance by not offering a lesser included
offense
instruction on aggravated assault.
In Castle we stated:
A defendant may be convicted only of the "greatest included offense about
which there is no reasonable doubt." Section 46-16-606, MCA. A
defendant is therefore entitled to an instruction on a lesser included offense
if any evidence exists in the record from which the jury could rationally
find him guilty of the lesser offense and acquit of the greater. Section 46-
16-607(2), MCA; State v. Fisch (1994), 266 Mont. 520, 522, 881 P.2d
626, 628. The purpose of this rule is to ensure reliability in the fact-finding
process. It avoids the situation where the jury, convinced that the defendant
is guilty of some crime, although not necessarily the crime charged,
convicts the defendant rather than let his action go unpunished simply
because the only alternative was acquittal. [State v.] Gopher [(1981), 194
Mont. 227, 231], 633 P.2d [1195,] 1197-98.
Castle, 54 St. Rep. at 1195-96.
Within the context of those general principles, we then engaged in a two-step
analysis. First, we determined that the offense of assault, õ 45-5-201, MCA
(typically
charged as a misdemeanor) is a lesser included offense of deliberate homicide, õ 45-
5-
102, MCA, a felony. We reached that conclusion by rejecting the State's argument
that
we simply apply the traditional "elements" test enunciated in Blockburger v. United
States
(1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. Instead, we directed our attention
to the broader definition of "included offense" contained in õ 46-1-202(8), MCA. We
pointed out that, while subsection 8(a) of this statute included the Blockburger
test,
subsection 8(c) defines "included offense" as one that "differs from the offense
charged
only in the respect that a less serious injury or risk to the same person, . . . or
a lesser
kind of culpability suffices to establish its commission." We then pointed out that
the
only difference between assault and deliberate homicide is that þa þless serious
injury .
. . suffices to establishþ the crime of assault.þ Castle, 54 St. Rep. at 1196
(quoting õ 46-
1-202(8)(c), MCA). Accordingly, under the rationale articulated in Castle, the
offense
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-119%20Opinion.htm (7 of 10)4/18/2007 1:30:19 PM
97-119
of aggravated assault is clearly a lesser included offense of deliberate homicide.
Like
assault, the only difference between aggravated assault and deliberate homicide is
that a
"less serious injury . . . suffices to establishþ the crime of aggravated assault.
As the second prong of our analysis in Castle, we next focused on whether there
was some basis in the evidence from which a jury could rationally conclude that the
defendant was guilty of the lesser, but not the greater offense, thus necessitating
the
giving of the lesser- included-offense instruction. We answered that inquiry in the
affirmative in Castle, and we must, likewise, do so in the case at bar. As the
majority
points out, there was evidence presented in the instant case that not only was
Sellner
acting with poor judgment under extreme stress because of his political/religious
environment when he shot at Deputy Parcell, but also that, in his own mind at least,
Sellner believed that the Deputy was wearing a flack jacket and that if he shot him
in the
chest the officer would not be hurt.
While this evidence might be inherently weak and implausible, nevertheless, this
was Sellner's theory of defense, and it was up to the jury to decide who and what to
believe. Again, a defendant is entitled to an instruction on a lesser included
offense if
any evidence exists in the record from which the jury could rationally find him
guilty of
the lesser offense and acquit of the greater. Section 46-16-607(2), MCA; Castle, 54
St.
Rep. at 1195; Fisch, 881 P.2d at 628. In my view, and regardless of how I, as a
judge,
might evaluate this evidence, a jury of twelve lay persons could rationally have
concluded
that Sellner was not guilty of attempting to kill Deputy Parcell, but, rather, was
only
guilty of doing or attempting to do him serious bodily injury. In point of fact, in
this
very case, after deliberating some ten hours, the jury acquitted Sellner of one of
the
offenses with which he was charged--i.e., the felony offense of criminal
endangerment.
Accordingly, I suggest that the jury's decision was not quite the "slam-dunk" that
the
majority portrays it to be and that the fact finders should have been given the
opportunity
to rule on the full range of Sellner's defense theory.
Finally, in the context in which this issue is presented on appeal--ineffective
assistance of counsel--I also conclude that, in failing to offer a lesser-included-
offense
instruction on the basis of aggravated assault, Sellner's trial counsel (who was
not the
same person as appellate counsel) was not performing within the range of competence
demanded of attorneys under similar circumstances and that, by reason of this
inadequate
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-119%20Opinion.htm (8 of 10)4/18/2007 1:30:19 PM
97-119
performance, Sellner suffered prejudice. Strickland v. Washington (1984), 466 U.S.
668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674.
As to the first Strickland prong--inadequate performance--given the facts of
this
case and the nature of Sellner's defense; given the black-letter law set out in õõ
46-16-
607 and 46-1-202(8)(c), MCA; and given our decision in Fisch, I would hold that the
performance of defendant's trial counsel was not commensurate with the range of
competence demanded of attorneys under similar circumstances. Keep in mind that
Sellner admitted shooting Deputy Parcell and that, absent the jury believing he shot
the
officer in self-defense and, thus, totally exonerating his conduct on the basis of
his
"conspiracy" theory, Sellner was, in all probability, going to be convicted of some
criminal act. It appears that even Sellner did not hold out much hope for a
complete
acquittal on the basis of self-defense. Since he also offered an attempted mitigated
deliberate homicide lesser-included-offense instruction, he obviously was not
pursuing the
tactic of trying to force the jury into an "all or nothing" verdict by not offering
any
lesser-included-offense instructions. Moreover, there was some evidence presented at
trial that Sellner was only attempting to injure, rather than kill Deputy Parcell
and that
his state of mind was consistent with the lesser offense of aggravated assault.Given
all
of these circumstances, it is hard to imagine why a competent criminal defense
attorney
would not have offered the lesser-included-offense instruction of aggravated
assault. If
there was a down side of doing so given the facts of this case, I am hard pressed to
determine what it would have been. The jury could still have acquitted Sellner on
the
basis of justifiable use of force. However, as an alternative to attempted
deliberate
homicide and attempted mitigated deliberate homicide, they also could have been given
the opportunity to consider convicting Sellner of aggravated assault--had the lesser-
included- offense instruction been offered. Proposing such an instruction would
not have
been inconsistent with the evidence or with Sellner's "try for acquittal, but also
cover all
other bases" trial strategy. If the judge refused to give the offered instruction,
the issue
would have been preserved for direct appeal; if the judge gave the instruction and
the jury
found Sellner guilty of a lesser offense of aggravated assault, he would have been
subject
to a substantially shorter prison term; and if the jury rejected aggravated assault
in favor
of one of the other two greater crimes, Sellner would have been no worse off than he
is
now. Offering the lesser-included-offense instruction on aggravated assault was
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-119%20Opinion.htm (9 of 10)4/18/2007 1:30:19 PM
97-119
simply
a "win-win" decision; and trial counsel was not performing within the range of
competence demanded of attorneys under similar circumstances when he failed to do so.
As to the second prong of Strickland--prejudice--obviously, by reason of his
counsel's inadequate performance, Sellner was deprived of any chance to have the jury
conclude that he was guilty of a lesser crime than attempted deliberate homicide or
attempted mitigated deliberate homicide and of a concomitant opportunity to be not
sentenced to life in prison for the former offense or to a 40-year prison term for
the
latter. Had trial counsel offered the lesser-included-offense instruction, the
result of this
case may have been a good deal more favorable to Sellner--he may only have been
convicted of aggravated assault and subjected to a sentence of 20 years in prison or
less.
Hence, prejudice is clearly apparent here.
On the basis of the foregoing, I would hold that Sellner was deprived of
effective
assistance of counsel, and I would reverse and remand for a new trial. It is said
that hard
cases make bad law and result-oriented decisions. This is such a case; and we have.
I dissent.
/S/ JAMES C. NELSON
Justices Karla M. Gray and William E.Hunt, Sr., join in the foregoing dissent.
/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-119%20Opinion.htm (10 of 10)4/18/2007 1:30:19 PM