State v. Hagen

No. 00-482

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 190

STATE OF MONTANA,

Plaintiff and Respondent,

v.

BRUCE HOLTE HAGEN,

Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Sanders,
The Honorable C. B. McNeil, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Wendy Holton, Attorney at Law, Helena, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; C. Mark Fowler,
Assistant Attorney General, Helena, Montana

Robert Zimmerman, Sanders County Attorney, Thompson Falls, Montana

Submitted on Briefs: September 6, 2001

Decided: August 29, 2002

Filed:

__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.

¶1 The Defendant, Bruce Holte Hagen, filed a petition for

postconviction relief in the District Court for the Twentieth

Judicial District in Sanders County to have his 1994 conviction for

deliberate homicide and aggravated assault set aside based on

ineffective assistance of counsel. The District Court dismissed

the petition and on appeal, this Court affirmed in part, reversed

in part, and remanded for an evidentiary hearing to consider those

allegations not based on facts in the record. Following that

hearing, the District Court issued its Findings of Fact,

Conclusions of Law, and Amended Sentence, in which it granted in

part and denied in part Hagen's petition for postconviction relief

by affirming his conviction but amending his sentence. Hagen

appeals the District Court's judgment. We affirm the District

Court.

¶2 The following issues are presented on appeal:

¶3 1. Did the District Court err when it failed to review the

entire record prior to entering its Findings of Fact, Conclusions
of Law and Amended Sentence?

¶4 2. Did the District Court err when it concluded that Hagen's

trial counsel provided reasonably effective assistance?

¶5 3. Did the District Court err when it concluded that Hagen's

appellate counsel provided reasonably effective assistance?
FACTUAL AND PROCEDURAL BACKGROUND

¶6 On May 12, 1994, Bruce Holte Hagen was convicted by a jury in

the Twentieth Judicial District Court in Sanders County of

2
deliberate homicide in violation of § 45-5-102, MCA, and aggravated

assault in violation of § 45-5-202, MCA. The charges arose from an

incident at Hagen's home in which Alice Goodrich was shot and

killed and James Enger was wounded. The District Court sentenced

Hagen to life in prison for the deliberate homicide conviction and

twenty years for the aggravated assault conviction, with ten years

added to each sentence for use of a dangerous weapon. The District

Court ordered that the sentences be served consecutively. Hagen's

appointed trial counsel, Matt Pavelich, filed a motion for a new

trial based on his failure to call a witness. The District Court

denied Hagen's motion for a new trial. Hagen appealed the District

Court's judgment. Stephen Nardi was appointed to represent him on

appeal.
¶7 In State v. Hagen (1995), 273 Mont. 432, 434, 903 P.2d 1381,

1382 ("Hagen I"), Hagen raised two issues for review: (1) whether

the District Court erred when it refused to give Hagen's proposed

jury instruction on the justifiable use of force in defense of an

occupied structure; and (2) whether Hagen was denied effective

assistance of counsel. The ineffective assistance of counsel claim

was predicated on four alleged failings by his trial counsel: (1)

failure to object to a remark by the prosecutor during voir dire;

(2) failure to request an instruction on Hagen's right to rely on

appearances in support of his justifiable use of force defense; (3)

failure to request an instruction on negligent homicide as a lesser

offense; and (4) failure to call a witness who would have testified

to prior inconsistent statements by a key State witness. We

3
affirmed the District Court on all issues. Hagen I, 273 Mont. at

445, 903 P.2d at 1389. A more detailed recitation of the factual

background in this case can be found in Hagen I.

¶8 On April 14, 1997, Hagen filed a petition for postconviction

relief, and alleged that both his trial counsel, Matt Pavelich, and

appellate counsel, Stephen Nardi, were ineffective. The District

Court dismissed all claims in the petition on June 13, 1997. Hagen

appealed the dismissal, and in Hagen v. State, 1999 MT 8, 293 Mont.

60, 973 P.2d 233 ("Hagen II"), this Court affirmed in part and

reversed in part. We held that certain allegations of ineffective

assistance of counsel were not based on facts in the record, were

properly raised in the petition for postconviction relief, and,

therefore, an evidentiary hearing was necessary. All other

allegations of ineffective assistance of counsel which were record-

based were dismissed on procedural grounds.
¶9 On March 13, 2000, the District Court held an evidentiary

hearing. On June 29, 2000, the District Court issued its Findings

of Fact, Conclusions of Law and Amended Sentence. The District

Court denied Hagen a new trial, but granted him partial

postconviction relief by ordering that his aggravated assault

sentence run concurrently with his deliberate homicide sentence.

On July 11, 2000, Hagen appealed the District Court's judgment.
STANDARD OF REVIEW

¶10 The standard of review of a district court's denial of a

petition for postconviction relief is whether the trial court's

findings of fact are clearly erroneous and whether its conclusions

4
of law are correct. State v. Hanson (1999), 1999 MT 226, ¶ 9, 296

Mont. 82, ¶ 9, 988 P.2d 299, ¶ 9.

5
 ISSUE 1

¶11 Did the District Court err when it failed to review the entire

record prior to entering its Findings of Fact, Conclusions of Law

and Amended Sentence?

¶12 In Conclusion of Law No. 21, the District Court stated: "That

in making its conclusions of law in these postconviction

proceedings, the Court does not review the entire trial

proceedings; . . . ." Hagen contends that the District Court had

an obligation to review the trial record since his claims were

record-based, and its failure to review the entire record deprived

him of due process and resulted in erroneous findings and

conclusions.
¶13 Due process is "not a fixed concept but, rather, is one which

must be tailored to each situation in such a way that it meets the

needs and protects the interests of the various parties involved."

Small v. McRae (1982), 200 Mont. 497, 507, 651 P.2d 982, 988. The

fundamental requirement of due process is the opportunity to be

heard "at a meaningful time and in a meaningful manner." Connell

v. State, Dept. of Social Services (1997), 280 Mont. 491, 496, 930

P.2d 88, 91. The concept of due process is a flexible one calling

for such procedural protections as the particular situation

demands. Sage v. Gamble (1996), 279 Mont. 459, 464-65, 929 P.2d

822, 825.

¶14 Postconviction relief statutes, found in Title 46, Chapter 21,

MCA, do not explicitly require that a district court review the

entire record. Here, the District Judge who presided over the

6
postconviction hearing was the same judge who presided at trial.

Review of the relevant portions of the court record is of

importance when a judge other than the trial judge presides over

the postconviction hearing. However, that was not the case here.

¶15 Furthermore, we refuse to impose on district courts a full-

fledged duty to review the entire record in every situation.

District courts maintain a duty to review those portions of the

record which are at issue in the postconviction proceeding. For a

district court which presided over the trial phase of a criminal

proceeding, that duty likely does not extend to the entire record.

The scope of the duty is determined on a case by case basis.

Here, because the petition for postconviction relief was before the

same judge who listened to the trial testimony when it was

presented, and given the extensive nature of the District Court's

findings of fact and conclusions of law, we conclude that Hagen was

not deprived of due process, and that the District Court did not

err when it made its decision without reviewing the entire trial

record.
ISSUE 2

¶16 Did the District Court err when it concluded that Hagen's

trial counsel provided reasonably effective assistance?

¶17 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. Dawson v. State, 2000

MT 219, ¶ 20, 301 Mont. 135, ¶ 20, 10 P.3d 49, ¶ 20. In evaluating

claims of ineffective assistance of counsel, this Court has adopted

7
the two-part test set forth in Strickland v. Washington (1984), 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See Hagen II, ¶ 10;

Dawson, ¶ 20. The defendant bears the burden of first showing that

his counsel's performance was deficient, which entails "showing

that counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To

assess deficient performance, we apply the "reasonably effective

assistance" test for whether a defendant's counsel acted within the

range of competence demanded of attorneys in criminal cases. State

v. Leavens (1986), 222 Mont. 473, 475, 723 P.2d 236, 237.
¶18 Second, the defendant must show that the deficient performance

"so prejudiced the defendant as to deprive the defendant of a fair

trial, a trial whose result is reliable . . . ." Strickland, 466

U.S. at 687, 104 S.Ct. at 2064. In other words, "there is a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Dawson, ¶ 20; State

v. Allen, 2001 MT 266, ¶ 27, 307 Mont. 253, ¶ 27, 37 P.3d 655, ¶

27.

¶19 In Strickland, the U.S. Supreme Court stated:

Although we have discussed the performance component
of an ineffectiveness claim prior to the prejudice
component, there is no reason for a court deciding an
ineffective assistance claim to approach the inquiry in
the same order or even to address both components of the
inquiry if the defendant makes an insufficient showing on
one. In particular, a court need not determine whether
counsel's performance was deficient before examining the
prejudice suffered by the defendant as a result of the
alleged deficiencies. The object of an ineffectiveness

8
 claim is not to grade counsel's performance. If it is
easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect
will often be so, that course should be followed.

466 U.S. at 697, 104 S.Ct. at 2069. Finally, a claim of

ineffective assistance of counsel must be grounded in facts found

in the record, not on "mere conclusory allegations." State v.

Hurlbert (1988), 232 Mont. 115, 120, 756 P.2d 1110, 1113 (citing

State v. Tome (1987), 228 Mont. 398, 403, 742 P.2d 479, 482).

¶20 Before addressing the merits of Hagen's ineffective assistance

claims, it is necessary that we address Hagen's claim that the

District Court's findings and conclusions regarding prejudice from

trial counsel's performance were inconsistent.
¶21 In Hagen II, this Court remanded to the District Court for an

evidentiary hearing to consider three issues: (1) whether trial

counsel was ineffective for failing to investigate James Enger's

reputation for turbulence, violence and trouble-making; (2) whether

trial counsel was ineffective for failing to investigate or present

significant impeachment testimony regarding Enger's credibility;

and (3) whether trial counsel was ineffective for failing to

interview and prepare witnesses prior to trial. The evidentiary

hearing was held on March 13, 2000, and Bruce Hagen, Kendra Hagen

(Bruce's daughter), and Reece Cobeen, a key prosecution witness,

testified. Hagen's trial counsel did not testify. The District

Court issued its Findings of Fact, Conclusions of Law, and Amended

Sentence, and with respect to Hagen's trial counsel, made the

following conclusions of law:

9
 8. That Defendant's trial counsel could have done a
better job of investigating and presenting testimony
regarding an alleged reputation for violence and a prior
criminal record on the part of Jim Enger, the victim of
the aggravated assault charge.

9. That the Defendant may have suffered some prejudice
as a result of Conclusion No. 8 with respect to
defendant's claim of self defense of the aggravated
assault charge involving Enger.

. . . .

12. That Defendant's trial counsel could have done a more
thorough job of interviewing and preparing witnesses, and
Defendant may have suffered some prejudice as a result
thereof.
¶22 While the District Court concluded that Hagen's trial counsel

could have done a "better" and "more thorough" job and, as a

result, "may have suffered some prejudice as a result," the

District Court also made the following Conclusions of Law:

6. That the Court holds that Defendant's trial counsel
provided reasonably effective assistance.

. . . .

22. That Defendant has failed to show in these
postconviction proceedings that there is a reasonable
probability that but for the deficiencies complained of
on the part of Defendant's trial and appellate counsel
the results would have been different. This Court
expressly holds that the results would not have been
different.

23. That the Defendant received a fair trial and that
the trial result is reliable . . . .

¶23 Therefore, it appears that the District Court concluded that

Hagen's trial counsel's performance was in part deficient, but that

the deficient performance did not so prejudice Hagen that it

deprived him of a fair trial. Hagen contends these findings and

conclusions are inconsistent and that the judgment that followed

10
must be reversed. However, it is entirely possible within the

framework of Strickland to find attorney error which possibly

prejudiced the defendant, yet conclude that such error did not rise

to a level serious enough to result in a verdict unworthy of

confidence. Such was the case here. The burden on the defendant

under Strickland is a heavy one. The defendant must show that

"counsel made errors so serious that counsel was not functioning as

the 'counsel' guaranteed by the Sixth Amendment," while also

showing that counsel's deficient performance was so prejudicial

that he was denied a fair trial. Strickland, 466 U.S. at 687, 104

S.Ct. at 2064. The District Court concluded that Hagen's trial

counsel's errors did not rise to that level. The controlling

language of the District Court's conclusions of law are those that

track the dispositive elements of the Strickland analysis. A

finding that an attorney could have done a "better" or "more

thorough" job and that a defendant may have suffered some prejudice

as a result is not the equivalent of ineffective assistance of

counsel pursuant to Strickland. Therefore, we conclude that the

District Court's findings and conclusions are not substantively

inconsistent and do not require reversal of the District Court's

judgment.
A. Failure to Investigate Enger's Reputation

¶24 Hagen contends that his trial counsel failed to investigate or

offer evidence of James Enger's reputation for violence, heavy

drinking and trouble-making. Hagen asserts that the introduction

of such evidence would have impacted Enger's credibility as a

11
witness. According to Hagen, his trial counsel's decision not to

pursue an investigation of Enger was based solely on his

misunderstanding of the law and mistaken belief that such evidence

would be inadmissible. Based on that error, Hagen asserts his

trial counsel rendered ineffective assistance of counsel.

¶25 The State, on the other hand, argues that while Hagen may have

informed his trial counsel of Enger's reputation, the record is

silent as to whether Hagen's trial counsel conducted any

investigation into the matter. The State also contends that any

assertion that Hagen's trial counsel misunderstood the law is mere

speculation, and that Hagen's trial counsel had sufficient tactical

reasons to avoid introducing any evidence of Enger's reputation.

The State's contentions are well taken.
¶26 Trial counsel has a duty to either conduct a reasonable

investigation or make a reasonable decision that a particular

investigation is unnecessary. Strickland, 466 U.S. at 691, 104

S.Ct. at 2066. Here, however, we cannot determine from the record

whether Hagen's trial counsel investigated Hagen's assertions, and,

if he did, what tactical reasons were considered for not

introducing that information at trial. The burden was on Hagen to

demonstrate ineffectiveness and Hagen's trial counsel did not

testify at the evidentiary hearing. A silent record cannot rebut

the "strong presumption that counsel's conduct falls within the

wide range of reasonable professional assistance." State v.

Langford (1991), 248 Mont. 420, 432, 813 P.2d 936, 946 (quoting

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). Therefore, we

12
conclude that ineffective assistance for failure to investigate or

prove Enger's reputation has not been established.

B. Failure to Investigate Enger's Prior Criminal Acts

¶27 Hagen next contends that had his trial counsel investigated

Enger's background, he would have discovered a history of

disorderly conduct. Evidence was introduced at the hearing that

Enger was convicted of criminal trespass in 1986 and disorderly

conduct in 1987, in addition to misdemeanor convictions for theft

and possession of a concealed weapon. The District Court found

that no evidence had been introduced as to what effect, if any,

such evidence would have had on Enger's credibility as a witness.

We agree that the relevancy of Hagen's criminal background was

questionable considering the remoteness of his convictions and the

fact that he was invited to the Hagen property by the Defendant's

wife. Most importantly, however, the record indicates that Hagen's

trial counsel did conduct some sort of investigation into Enger's

background. At the hearing, Hagen himself testified as follows:
Q: Did you tell Mr. Pavelich anything about Jim
Enger's reputation for violence and
troublemaking?

Hagen: Yes, I did.

Q: And what did you tell him?

Hagen: I told him that he had a reputation for fighting
and picking on
people instead
of – trying to
be a bully,
especially when
he had been
drinking. And
I also heard
from Matt

13
 [Pavelich]
himself that he
had a criminal
record, that
they were
checking on him
in Plains for
stealing from
mailboxes.
[Emphasis
added.]

Therefore, Hagen's trial counsel did perform some type of

investigation into Enger's criminal record. Based on all the

foregoing considerations, we conclude Hagen has not proven

ineffective assistance of counsel for failure to investigate

Enger's criminal background.
C. Enger's Civil Lawsuit

¶28 Hagen asserts that further investigation would have revealed

that Enger had filed a civil lawsuit against Hagen which was

pending at the time of Hagen's trial. As a result of that lawsuit,

Hagen contends that Enger had a financial stake in the outcome of

the trial. The State contends that the jury was aware that Enger

suffered significant physical injuries from the shooting and could

reasonably infer that Enger would seek monetary redress for his

medical injuries.

¶29 We agree that disclosing a civil suit would have demonstrated

a financial interest in the outcome of this prosecution and would

have been relevant. However, the record does not disclose that

counsel failed to investigate the suit or why counsel chose not to

offer evidence of the suit, if he knew of it. Most critically,

however, we are unable to conclude that evidence of the suit would

14
have produced a different result in the context of all the evidence

offered at Hagen's trial. Therefore, we conclude that the District

Court did not err by its resolution of this claim.

D. Failure to Interview and Present Impeaching Testimony of a

Critical Prosecution Witness

¶30 Hagen asserts that his trial counsel failed to interview Reece

Cobeen, a critical prosecution witness. In addition, Hagen

contends that his trial counsel failed to bring to the jury's

attention a pretrial statement that would have contradicted

Cobeen's testimony, or offer any other evidence to impeach him.

The State, on the other hand, contends that this issue was

previously decided in Hagen II.
¶31 The issue presented to this Court in Hagen II was whether

Hagen's trial counsel was ineffective for failing to investigate or

present testimony to impeach both Cobeen and Enger. With regard to

Cobeen, we stated: "We agree with the State that Bruce's

ineffective assistance of counsel claim with regard to counsel's

failure to investigate or present testimony impeaching Reece was

raised and resolved during Bruce's direct appeal." Hagen II, ¶ 32

(citing Hagen I, 273 Mont. at 444, 903 P.2d at 1388). Therefore,

we conclude that this claim is barred by principles of res

judicata.

E. 911 Transcript

¶32 Hagen also contends that his trial counsel was ineffective for

his failure to present evidence of Hagen's call to the 911

dispatcher immediately following the shootings. Hagen asserts that

15
the transcript of the phone call was the best evidence of his state

of mind at the time of the incident. The 911 transcript revealed

that Hagen told the dispatcher, "I was attacked in my house and I -

I - I don't (?) like that. We need an ambulance and we need the

police." The State contends that the best evidence of Hagen's

state of mind at trial was from Hagen's own testimony.

¶33 The 911 transcript would have corroborated Hagen's testimony

and may have been admissible as a prior consistent statement. See

Rule 801(d)(1), M.R.Evid. However, we have previously stated that

counsel has no obligation to present cumulative evidence. State v.

Allen, 2001 MT 266, ¶ 29, 307 Mont. 253, ¶ 29, 37 P.3d 655, ¶ 29.

Furthermore, we are unable to speculate why the evidence was not

offered. Finally, even if there was no sound tactical reason for

not offering the evidence, we are unable to conclude that its

presentation would have led to a different result. Therefore, we

conclude that the failure to offer the transcript is not a

sufficient basis on which to set aside Hagen's conviction.
¶34 We conclude that the District Court did not err when it

concluded that trial counsel's performance was reasonably effective

and that any omissions of counsel were not sufficient to undermine

confidence in the trial's outcome.
ISSUE 3

¶35 Did the District Court err when it concluded that Hagen's

appellate counsel provided reasonably effective assistance?

¶36 Hagen contends that his appellate counsel was ineffective for

the following reasons: (1) he failed to raise issues regarding the

16
manner in which Hagen's mental health evaluations were obtained,

the nature of those evaluations, and the dissemination of the

evaluations to the District Court and the prosecution; (2) he

failed to raise trial counsel's failure to object to the

introduction of an autopsy report which referred to the cause of

death as a "homicide"; (3) he failed to raise trial counsel's

failure to object to the State's comments on Hagen's wife's

invocation of spousal privilege; (4) he failed to raise trial

counsel's failure to object to improper comments about Hagen's

wife's credibility; (5) he failed to raise trial counsel's improper

vouching for a prosecution witness during the cross-examination of

another prosecution witness; (6) he failed to raise trial counsel's

shifting of the burden of proof during closing argument; and (7) he

raised trial counsel's failure to request a lesser included offense

instruction on direct appeal rather than on postconviction relief.

We will address each allegation in turn.
¶37 Claims of ineffective assistance of appellate counsel are

analyzed, like those of trial counsel, according to the standard

set forth in Strickland. Dawson, ¶ 147. "The petitioner must show

that counsel's advice fell below an objective standard [of]

reasonableness and that there is a reasonable probability that, but

for counsel's unprofessional errors, the petitioner would have

prevailed on appeal." Dawson, ¶ 147.

A. The Mental Health Examination

¶38 On October 25, 1993, Hagen's trial counsel moved the District

Court for an order pursuant to § 46-14-202, MCA, to require Hagen

17
be examined by a licensed psychologist or psychiatrist to determine

his fitness to proceed. Hagen was examined by William Stratford,

M.D., and Herman Walters, Ph.D. Hagen alleges that prior to the

examination, he was informed by his trial counsel that the District

Court had ordered him to see a psychiatrist before the bond

hearing. However, Hagen alleges he was not informed of his right

to a confidential examination at the State's expense, or that his

examination results could be used against him at sentencing. The

evaluation results of both Dr. Stratford and Dr. Walters were

shared with the District Court and the State. The District Court

referred to the psychological reports and the presentence

investigation report in the sentencing order.
¶39 Although the District Court concluded that the trial counsel's

performance "may have been deficient in making Defendant's pre-

trial psychological examination available to the prosecution and to

the Court," it also concluded that "no prejudice resulted to the

defense." The District Court also found that "there was no

evidence introduced at the postconviction hearing that making the

report of the psychological evaluation available

. . . had any effect on either the prosecution of the Defendant or

his sentencing." Without such evidence, the District Court

concluded that Hagen's appellate counsel was not ineffective for

failing to raise the issue on direct appeal.

¶40 As the defendant, Hagen carries the burden of showing that but

for appellate counsel's performance, the result of the proceeding

would have been different. Here, however, Hagen has not identified

18
what information in the doctors' evaluations was damaging to his

defense. Furthermore, we cannot conclude, based on facts before

us, that Hagen's sentence was somehow lengthened based solely on

the doctors' evaluation. While Hagen's psychological evaluation

results deserved better protection, we cannot determine what

prejudice occurred as a result of appellate counsel's failure and,

therefore, conclude that the District Court did not err by

rejecting Hagen's claim made on this basis.

B. The Autopsy Report
¶41 Hagen contends that his appellate counsel should have attacked

his trial counsel's failure to object to the State's introduction

of an autopsy report which characterized the nature of the case as

a "homicide." According to Hagen, the medical examiner's report

amounted to expert testimony that the cause of death was murder,

which would have directly contravened his affirmative defense of

justifiable use of force. Hagen contends that permitting such

information without an objection or limiting instruction was a

record-based error of his trial counsel that should have been

raised on appeal by his appellate counsel.

¶42 However, it was an uncontroverted fact that Hagen killed Alice

Goodrich. That killing qualifies as a homicide based on the

general definition of the term. As the District Court found,

"Black's [L]aw [D]ictionary defines homicide as the killing of one

person by another." Following that definition, Black's Law

Dictionary goes on to quote a criminal law treatise which states,

"The legal term for killing a man, whether lawfully or unlawfully,

19
is 'homicide.' There is no crime of 'homicide.'" Black's Law

Dictionary 739 (7th ed. 1999) (quoting Glanville Williams, Textbook

on Criminal Law 204 (1978)). Furthermore, trial counsel explained

the difference between "homicide" and the legal term "deliberate

homicide" in his closing argument. We conclude that failure to

object to use of the term in the report or request a limiting

instruction was not ineffective and, therefore, we conclude Hagen's

appellate counsel had no responsibility to raise the issue on

appeal.
C. Invocation of Spousal Privilege

¶43 Next, Hagen contends that his appellate counsel should have

raised on direct appeal his trial counsel's failure to object to

the State's comments on Hagen's spouse's invocation of spousal

privilege. Hagen asserts that the prosecution clearly questioned

Gabby Hagen about why she would not offer a statement about her

husband, in contravention of Rule 505, M.R.Evid. Those actions,

according to Hagen, were patently improper because of the

inferences that could be drawn from Gabby's decision not to offer a

statement.

¶44 We analyze alleged prosecutorial misconduct in cases such as

this to determine whether the language used was manifestly intended

or of such a character that a jury would naturally and necessarily

take it as a comment on the failure of the privileged individual to

testify. See State v. Dawson (1988), 233 Mont. 345, 356, 721 P.2d

352, 359. After review of the record in this case, we cannot

conclude that the jury would "naturally and necessarily" have

20
interpreted the comments of the prosecutor as comments on Gabby

Hagen's invocation of spousal privilege. Therefore, we conclude

that Hagen's appellate counsel did not err by failing to raise the

issue on appeal.

D. Inappropriate Opinion Testimony on Credibility

¶45 The State introduced two videotapes which recorded police

interviews of Hagen. After the first tape was shown to the jury,

the prosecutor asked Officer Larry Kirby to describe

inconsistencies he believed to exist between the two interviews, in

an attempt to show that Hagen had changed his story to fabricate a

defense. Hagen contends that this testimony amounted to a comment

on Hagen's credibility which was inadmissible pursuant to the

Montana Rules of Evidence and applicable case law. See Rules 701

and 702, M.R.Evid.; State v. Webb (1990), 243 Mont. 368, 792 P.2d

1097.
¶46 However, pointing out inconsistencies in a person's statements

is not the equivalent of expressing an opinion on credibility.

Furthermore, it is difficult to infer prejudice since the jury had

the independent opportunity to review the same statements.

Therefore, we conclude that appellate counsel was not ineffective

for failing to raise this issue on appeal. E. Improper Vouching

for a Prosecution Witness

¶47 Hagen's trial counsel elicited the following testimony of

Deputy Jonathan Hansen on cross examination:

Q: While you had encountered them in the bar and some
talk about a shooting, did you feel Punky Cobeen
was the kind of person who would keep them out of
trouble later in the evening?

21
 A: I have never known him to be violent. I've known

him to drink, but I've never known him to be a

criminal or be violent.

Hagen contends that no competent, experienced defense attorney

would deliberately introduce evidence of a police officer's

personal opinion regarding the character of a key prosecution

witness. That attorney error, Hagen contends, was prejudicial to

his defense, and should have been raised on appeal. Because it was

not, Hagen asserts his appellate counsel was ineffective. The

State contends that Hagen's charge is meritless because Officer

Hansen's statement that Cobeen was neither violent nor a criminal

was not indicative of Cobeen's truthfulness. According to the

State, it was not vouching testimony. The District Court found

that "Deputy Hansen did not comment on Cobeen's credibility."
¶48 While this Court has warned against the introduction of

improper vouching testimony, particularly by the prosecution, we

conclude that the above-cited testimony does not constitute

vouching testimony. As the Ninth Circuit has stated, "introducing

bolstering evidence is not the same as vouching for the witness; .

. . ." United States v. Meling (9th Cir. 1995), 47 F.3d 1546,

1558. The testimony cited above was more an example of character-

bolstering evidence, not vouching. Furthermore, there was only one

instance cited and we simply cannot conclude based on that isolated

instance that Hagen's trial counsel was ineffective or that Hagen

was prejudiced by the remark. Accordingly, we conclude that

22
appellate counsel was not ineffective for failing to raise this

issue on appeal.

F. Closing Argument

¶49 Hagen asserts that his appellate counsel erred when he failed

to raise his trial counsel's comments during closing argument which

purportedly misinformed the jury that the burden of proof had

shifted to the defense. During closing argument, Hagen's trial

counsel stated:

I know that the State is going to say, "Hey, you
look at the elements of these crimes charged. We don't
need to prove motive. We don't need to prove motive at
all," and which is true. Motive is not an element of
either of the crimes charged. As a matter of fact, we
have to prove motive. We have to prove that the motive
was self-defense. Well, so be it. If it wasn't self-
defense, what was it?"
Based on the above statement, Hagen contends the jury was

erroneously led to believe that the defense had the burden of proof

and, in effect, had to disprove the State's allegations. The

State, on the other hand, asserts Hagen's trial counsel was correct

in noting that when self-defense is raised as an affirmative

defense, the defendant does assume the burden of showing that the

self-defense was justified and reasonable.

¶50 In State v. Daniels (1984), 210 Mont. 1, 16, 682 P.2d 173,

181, we stated the general rule with regard to burden-shifting as a

result of a defendant raising an affirmative defense:

The State has the burden of proving beyond a reasonable
doubt every element of the offense charged, or any
lesser-included crime within such charge; the defendant
if he raises the affirmative defense [such as self-
defense] has the burden of producing sufficient evidence
on the issue to raise reasonable doubt of his guilt, . .
. .

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Therefore, in this case, the burden did shift to Hagen to produce

sufficient evidence to raise reasonable doubt of his guilt based on

his justifiable use of force defense. Hagen's trial counsel's

comments were consistent with that shift of the burden.

Furthermore, we presume that the jury follows the law as it is

given, and in Jury Instruction No. 21, the jury was correctly

instructed:

The defendant has pleaded justification in the use

of force in this case. The defendant has the burden of

producing sufficient evidence of justification in the use

of force to raise a reasonable doubt of his guilt. You

are to consider the following requirements of the law in

determining whether the use of force claimed by defendant

was justified:
. . . .

[Lists five requirements.]

. . . .

You are further advised that even if you determine

the use of force by defendant was not justified, the

state still has the duty to prove each of the elements of

the crime charged beyond a reasonable doubt.

Based on the foregoing, we presume that the jury was correctly

informed of the law, and further conclude that Hagen's trial

counsel was not ineffective based on the comments he made during

closing argument. Therefore, we conclude that Hagen's appellate

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counsel was not ineffective for not raising the issue on direct

appeal.

G. The Instruction on Negligent Homicide

¶51 Hagen next contends that his appellate counsel was ineffective

for raising his trial counsel's failure to request a lesser

included offense instruction on direct appeal rather than by

postconviction relief. Appellate counsel, according to Hagen,

should have recognized that an evidentiary hearing was necessary,

and, therefore, should have raised the issue by way of a

postconviction proceeding. While Hagen contends that evidence in

support of his claim would have been presented at a postconviction

hearing, he failed to establish what that evidence would have

shown. Furthermore, claims which can reasonably be raised on

direct appeal "may not be raised, considered, or decided" in a

postconviction relief proceeding. § 46-21-105(2), MCA. Had

Hagen's appellate counsel not raised the claim, Hagen would have,

in all likelihood, been procedurally barred from raising it by

postconviction relief. Therefore, we conclude that he was not

ineffective for raising it on appeal.
H. Cumulative Error

¶52 Finally, Hagen contends that the cumulative effect of

appellate counsel's alleged errors caused him prejudice, even if

any of the errors standing alone would not be sufficiently

prejudicial. However, having analyzed each of Hagen's allegations

separately, we have concluded that in each situation, counsel

either acted reasonably or his omission did not undermine

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confidence in the outcome. We also conclude that the combined

effect of all the acts or omissions complained of did not undermine

confidence in the outcome of Hagen's trial.

¶53 For the foregoing reasons, the judgment of the District Court

is affirmed.

/S/ TERRY N. TRIEWEILER

We Concur:

/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE

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