No. 03-722
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 224
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DAVID AUDET,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade, Cause No. CDC 02-368
The Honorable Kenneth R. Neill, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender Office, Helena, Montana
For Respondent:
Honorable Mike McGrath, Montana Attorney General, Jennifer Anders,
Assistant Attorney General, Anthony Johnstone, Assistant Attorney General,
Helena, Montana; Brant Light, Cascade County Attorney, Joel Thompson,
Deputy County Attorney, Great Falls, Montana
Submitted on Briefs: May 11, 2004
Decided: August 18, 2004
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 David Audet (Audet) was convicted by a jury of Assault on a Peace Officer, a Felony,
and Resisting Arrest, a Misdemeanor. He appeals his conviction on the ground that he did
not receive effective assistance of counsel. We conclude, however, that Audet’s claim for
ineffective assistance of counsel cannot be addressed without considering matters outside the
record and, therefore, this appeal must be dismissed.
ISSUE
¶2 The issue before this Court is whether Audet received ineffective assistance of
counsel at trial.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In August 2002, a distraught Audet showed up in the early morning hours at the home
of his former girlfriend, Judy Wagner (Wagner). He was intoxicated, depressed and suicidal.
Wagner called the police and reported that Audet was in her backyard and had a large stick.
Officer Doug Mahlem arrived on the scene at approximately 3:30 a.m. His younger brother,
Derek, who was training to be a 9-1-1 dispatcher in Roosevelt County at the time, was
“riding along” with Officer Mahlem that evening. Upon arriving at the scene, Wagner took
Officer Mahlem and Derek into her back yard where Audet was sitting on the ground. It was
dark and visibility was extremely limited. Derek shone a flashlight on Audet, revealing that
Audet was holding a long pointed bamboo stake used to push into the ground and hold a
candle for outdoor lighting. Officer Mahlem ordered Audet to drop the stake. Audet refused
and told Mahlem that he would not be taken alive. He then instructed Officer Mahlem to
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shoot him in the head.
¶4 Officer Mahlem continued to order Audet to lower the stake and Audet continued to
refuse. Audet stood up and assumed what Mahlem concluded to be a threatening stance and
demeanor. When Audet continued to refuse to comply with Mahlem’s instructions, Mahlem
approached him closely enough to administer a large dose of “pepper spray” in Audet’s face.
Audet did not react in any way to the pepper spray and continued his defiant stance and grip
on the stake. At approximately this time, Mahlem’s backup, Officer Runner, arrived.
Shortly thereafter, the two officers were able to take Audet to the ground, disarm him, and
handcuff him. Audet struggled to avoid being handcuffed but was ultimately restrained.
¶5 Audet was originally charged by Information with Assault on a Peace Officer, a
Felony, Partner Assault, a Misdemeanor, and Resisting Arrest, a Misdemeanor; however, the
partner assault charge was later dismissed. Several hearings were held between September
26, 2002, and the dates of trial, on March 3 and 4, 2003. At one of these hearings, Audet
told the court that he wished to plead guilty to the resisting arrest charge but go to trial on
the officer assault charge. When questioned by the court, Audet admitted that his counsel
had advised him otherwise. The court, as a result, entered “not guilty” pleas for both counts.
¶6 At the time of trial, however, Audet’s counsel informed the jury in both his opening
and closing statements that his client was not contesting the resisting arrest charge but lacked
the “purposeful” and “knowing” elements required to commit officer assault. Both the
assault and resisting arrest charges require that a defendant act “purposely” or “knowingly.”
After much negotiation, the parties reached agreement on the two different jury instructions
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defining “knowingly.” For purposes of determining whether Audet “knowingly” assaulted
Mahlem, the jury was told that “a person acts knowingly when there exists a high probability
that the person’s conduct will cause a specific result.” For purposes of determining whether
Audet “knowingly” resisted arrest, the jury was told that “a person acts knowingly when the
person is aware of his or her conduct.”
¶7 In the State’s rebuttal closing argument, the State’s attorney told the jury:
[Audet’s attorney] started his opening statement to you at the beginning
of this trial, and he started his closing statement to you at the end of this trial
with a declaration that they are not contesting the fact that the defendant
resisted arrest.
Well, ladies and gentlemen, we also have to prove mental state for that
offense. So essentially by conceding the resisting arrest offense, they are
conceding that the defendant acted knowingly that night because how can it
be that the defendant didn’t know what he was doing when he wielded the
weapon at Officer Mahlem and caused the reasonable apprehension, and yet
when he’s taken to the ground he knows what he’s doing and he resists the
handcuffs?
They can’t have it both ways. They have essentially conceded mental
state by conceding that he’s guilty of resisting arrest.
¶8 The jury returned a verdict of guilty on both counts. With new counsel, Audet
appeals on the ground that his trial counsel provided ineffective assistance. He maintains
that his counsel should have allowed or instructed him to plead guilty to resisting arrest to
the judge instead of to the jury. By pleading to the court, his guilty plea would not have
been before the jury and could not have been used against him. He asserts that by admitting
to the jury that he resisted arrested, this admission undermined his defense that he did not
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“purposely” or “knowingly” assault Officer Mahlem. Audet argues that such a mistake
constitutes ineffective assistance of counsel and warrants a reversal of his conviction.
STANDARD OF REVIEW
¶9 To assess a claim of ineffective assistance of counsel, both on direct appeal and in
post-conviction proceedings, this Court applies the two-prong test from Strickland v.
Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, which requires the
defendant to “show that his counsel’s performance was deficient and that the deficient
performance prejudiced the defense and deprived the defendant of a fair trial.” State v. Notti,
2003 MT 296, ¶ 4, 318 Mont. 146, ¶ 4, 79 P.3d 289, ¶ 4 (citation omitted). Moreover,
claims of ineffective assistance of counsel involve mixed questions of law and fact.
Therefore, this Court reviews such claims de novo. State v. Davis, 2003 MT 341, ¶ 15, 318
Mont. 459, ¶ 15, 81 P.3d 484, ¶ 15.
DISCUSSION
¶10 The sole question in this case is whether Audet’s counsel provided ineffective
assistance when he conceded to the jury Audet’s guilt to resisting arrest. As noted above,
counsel for the State then used this concession in her argument to the jury that if Audet
admitted to “knowingly” resisting arrest, he had the mental capacity to also “knowingly”
assault Officer Mahlem. Audet argues that “effective” counsel would have reasonably
recognized that this concession of guilt to the resisting arrest charge could lead the
prosecutor to use the concession against him to “devastating effect.” He further maintains
that counsel’s ineffectiveness prejudiced him.
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¶11 The first prong of the Strickland test requires Audet “to establish that his trial
counsel’s performance fell short of the range of competence required of attorneys in criminal
cases. In order to constitute ineffective assistance, counsel’s conduct must flow from
ignorance or neglect rather than from strategic decisions and trial tactics. Moreover, there
is a strong presumption that counsel’s performance was based on sound trial strategy and
falls within a wide range of reasonable professional conduct.” State v. Hendricks, 2003 MT
223, ¶ 7, 317 Mont. 177, ¶ 7, 75 P.3d 1268, ¶ 7 (citations omitted).
¶12 Our review of the record in the case before us confirms that Audet’s counsel conceded
that Audet was not contesting the resisting arrest charge. It does not, however, set forth the
reason why counsel chose to concede this to the jury, rather than either allowing Audet to
plead guilty to this charge prior to the trial, or allowing the jury to determine Audet’s guilt
on this charge. As we explained in Hendricks, absent evidence in the record demonstrating
the reasons underlying this decision by defense counsel, we are unable to determine whether
this decision constituted an unreasonable defense strategy that would overcome the
presumption that counsel’s actions fall within the range of reasonable professional conduct.
Hendricks, ¶ 9.
¶13 The Hendricks Court, recognizing conflicting lines of authority in cases with similar
circumstances, stated:
[W]e take this opportunity to clarify that in future cases we will utilize the
procedure set forth in [State v. Herrman, 2003 MT 149, ¶ 34, 316 Mont. 198,
¶ 34, 70 P.3d 738, ¶ 34] and [State v. Turnsplenty, 2003 MT 159, ¶¶ 18-21,
316 Mont. 275, ¶¶ 18-21, 70 P.3d 1234, ¶¶ 18-21] when the record in a direct
appeal is insufficient to determine whether the defendant’s counsel provided
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ineffective assistance. In other words, we will dismiss the direct appeal and
require the defendant to raise the ineffective assistance claim via a post-
conviction relief proceeding, if at all. . . .
Hendricks, ¶ 11.
¶14 As pointed out by Audet, there exist cases in which counsel’s actions so clearly fall
below the reasonable range of professional conduct required that neither an explanation for
the action in the record or a post-conviction hearing is necessary to explain the reasons. See
State v. Jefferson, 2003 MT 90, 315 Mont. 146, 69 P.3d 641. We conclude, however, that
this is not such a case. Audet has raised a colorable claim of ineffective assistance of
counsel, the merits of which require an exploration of the reasons his attorney took the
actions above-described.
CONCLUSION
¶15 For the foregoing reasons, we dismiss Audet’s claim of ineffective assistance of
counsel, without prejudice to its being raised in a post-conviction relief proceeding.
/S/ PATRICIA O. COTTER
We Concur:
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ JIM RICE
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