No. 04-519
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT
STATE OF MONTANA,
Plaintiff and Respondent,
v.
FRANZ NOVAK,
Defendant and Appellant.
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Teton, Cause No. 01-DC-019,
The Honorable Marc G. Buyske, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jeffry L. Olson, Attorney at Law, Great Falls, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; John Paulson,
Assistant Attorney General, Helena, Montana
Joe Coble, Teton County Attorney; Choteau, Montana
Submitted on Briefs: September 28, 2005
Decided:
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Franz Novak (Novak) appeals his convictions from the District Court of the Ninth
Judicial District, Teton County, for sexual assault, a felony in violation of ' 45-5-502(3),
MCA, and sexual intercourse without consent, a felony in violation of ' 45-5-503(3), MCA.
We affirm.
¶2 Novak raises the following four issues on appeal:
¶3 1. Whether the performance of Novak=s counsel denied him effective assistance at
trial.
¶4 2. Whether the District Court abused its discretion in denying Novak=s motion for a
mistrial.
¶5 3. Whether this Court should apply the plain error doctrine to review Novak=s claims
on appeal.
¶6 4. Whether the cumulative error doctrine entitles Novak to a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
¶7 The Teton County Sheriff=s Office received a letter in March of 2001 from Elizabeth
Wyss (Elizabeth), a 21-year-old college student in Bozeman. In this letter, Elizabeth
complained that Novak had coerced her into signing over her house to him through threats,
physical assaults, and fraud. Elizabeth also alleged that Novak began a sexual relationship
with her when she was only 14 years old. The letter prompted the Teton County Sheriff=s
Office to conduct an investigation.
¶8 The investigating deputy sheriff interviewed Elizabeth, her mother Pat Wyss (Pat),
and Novak about the allegations in Elizabeth=s letter. Novak provided a video-taped
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statement in which he characterized his relationship with Elizabeth as a pure “father-
daughter” relationship. He initially denied ever having sex with Elizabeth. Later in the
interview, however, he admitted to having sex with her after she turned 18. He denied
having any sexual interest in Elizabeth before that time. Following the investigation the
State charged Novak with one count of felony sexual assault, one count of felony sexual
intercourse without consent, one count of misdemeanor partner or family member assault,
and one count of felony theft.
¶9 Two court-appointed attorneys represented Novak at trial. The District Court
dismissed the misdemeanor partner or family member assault and felony theft charges on the
first day of trial. In its preliminary instruction to the jury, the District Court stated that the
charges set forth in the Information were Aall alleged to have occurred between May, 1994,
and May, 2000 . . . .” Elizabeth turned 16 on June 4, 1995. Thus no events after that date
related to Novak=s remaining charges, as the State premised the sexual assault and sexual
intercourse without consent charges on Elizabeth=s inability to consent when she was under
the age of 16. Sections 45-5-502(3) and 503(3), MCA.
¶10 Elizabeth testified that she first met Novak in December of 1993, when she was 14
years old. Novak, a 41-year-old ski instructor at the time, began dating Elizabeth=s mother,
Pat, following the death of Elizabeth=s father in February of 1993. Novak soon moved into
the Wyss home in Fairfield. Even though the relationship between Pat and Novak ended in
May of 1994, Novak remained in the family home, working on the construction of a deck and
acting as a father figure to Elizabeth and her brother.
¶11 Elizabeth further testified that Novak had started a sexual relationship with her shortly
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before her graduation from eighth grade, when she was only 14 years old. Novak continued
to have sex with Elizabeth on a regular basis over the next seven years. In January of 1998,
Novak got into a heated argument with Elizabeth=s younger brother. Pat demanded that
Novak move out. Elizabeth joined him, and the two moved into a house in Choteau that
Elizabeth inherited from her grandmother. Novak did some repairs on the house, and
eventually persuaded Elizabeth to sign the title over to him through alleged threats, physical
abuse, and fraud.
¶12 The State admitted testimony, through various witnesses, of Novak=s controlling
personality. Novak=s counsel objected to some, but not all, of this testimony. The District
Court met with counsel in chambers on the second day of trial to express its concern about
some of the State=s evidence. The court voiced particular concern with the relevance of
testimony regarding Novak=s controlling personality. The State insisted the evidence
demonstrated why Elizabeth did not report the sexual relationship sooner. Novak=s counsel
informed the court that they were concerned with Novak=s assertion during the video-taped
interview with the Teton County deputy sheriff that he first had sex with Elizabeth when she
was 18 years old. His counsel believed that this assertion placed Novak=s entire relationship
with Elizabeth at issue, and that the State would be able to rebut Novak=s assertion with
evidence of his control over Elizabeth. Novak=s counsel explained that they preferred this
evidence to come in during the State=s case-in-chief rather than through rebuttal witnesses
following Novak=s testimony.
¶13 The State made several inflammatory remarks in its rebuttal closing statement,
including the following:
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At what point does a father decide that now, okay, his girl is ready for him to
have sex with her? . . . I suggest to you that the fact that he told you that it
wasn=t until she was 18 that he began to have sex with his daughter was of no
importance whatsoever, and he sat right there on that witness stand and told
you things that you know are not true. If he were to tell you things of that
nature, which are so clearly not true, why, oh why would he not be dishonest
about the age that he started to put that little girl through his grinder?
....
[N]ews reports are replete with examples of people under the control of
someone who is charismatic and manipulative and do things to us that are
inexplicable, it happens all the time. Just think about it, think about
Jonestown, how do you explain that? This Defendant was able to manipulate
and control a weak and vulnerable family. He preyed on them.
....
Think about some of the reports with clergy members in the papers. It=s not
unusual that a girl is a victim of that man, and I=m not asking you to fix it, I=m
asking you to hold him responsible. . . . I=m asking you to hold him responsible
for tearing that family apart.
¶14 Novak moved for a mistrial based on the State=s statements. The District Court denied
the motion. The jury returned a guilty verdict on both remaining counts on December 10,
2003. The District Court sentenced Novak to two concurrent state prison terms of 20 years,
with 18 years suspended. This appeal followed.
STANDARD OF REVIEW
¶15 Claims of ineffective assistance of counsel present mixed questions of law and fact
that we review de novo. State v. Kougl, 2004 MT 243, & 12, 323 Mont. 6, & 12, 97 P.3d
1095, & 12. The standard for denial of a motion for a mistrial is whether the district court
abused its discretion. State v. Steele, 2004 MT 275, & 15, 323 Mont. 204, & 15, 99 P.3d
210, & 15. When a defendant raises the plain error doctrine to request our review of issues
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that were not objected to at the district court level, our review is discretionary. State v. Gray,
2004 MT 347, & 13, 324 Mont. 334, & 13, 102 P.3d 1255, & 13. We use the plain error
doctrine sparingly on a case-by-case basis and consider claims to apply it in light of the
totality of circumstances of each case. Gray, & 13. Finally, we will reverse a conviction
under the cumulative error doctrine only if accumulated errors prejudiced the defendant=s
right to a fair trial. State v. Enright, 2000 MT 372, & 34, 303 Mont. 457, & 34, 16 P.3d 366,
& 34.
DISCUSSION
¶16 Whether the performance of Novak=s counsel denied him effective assistance at
trial.
¶17 Novak argues his counsel=s failure to object to the District Court=s improper
preliminary jury instruction, to inadmissible evidence admitted by the State, and more
frequently during his cross-examination denied him effective assistance at trial. The State
counters by arguing that Novak=s claims are better suited for consideration in post-conviction
proceedings.
¶18 The Sixth Amendment of the United States Constitution and Article II, Section 24, of
the Montana Constitution guarantee the right to effective assistance of counsel. Ineffective
assistance of counsel claims fall into two categories: record-based and non-record based.
State v. Earl, 2003 MT 158, & 39, 316 Mont. 263, & 39, 71 P.3d 1201, & 39. A party may
raise only record-based ineffective assistance claims on direct appeal. Earl, & 39. We
review whether the record discloses why counsel took, or failed to take, action in providing a
defense when determining whether an ineffective assistance of counsel claim is appropriate
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for direct, record-based review. State v. Notti, 2003 MT 296, & 8, 318 Mont. 146, & 8, 79
P.3d 289, & 8. The claimant must raise a claim of ineffective assistance of counsel in a
petition for post-conviction relief if the allegation cannot be documented from the record.
Earl, & 39.
¶19 Failure to object to testimony is generally record-based and thus appropriate for direct
appeal. Notti, & 8. If the record does not fully explain why counsel failed to object to the
admission of evidence, however, the matter is best suited for post-conviction proceedings.
Notti, & 8. For instance, decisions regarding the number and timing of objections lie within
counsel=s tactical discretion, which would indicate that non-record based information
explaining the tactics may be involved, and thus should be barred from record-based review.
State v. White, 2001 MT 149, & 16, 306 Mont. 58, & 16, 30 P.3d 340, & 16.
¶20 Novak=s claim of ineffective assistance of counsel is best suited for post-conviction
relief. The record does not disclose fully why Novak=s counsel failed to object to certain
evidence, to the improper preliminary jury instruction, or more frequently during Novak=s
cross-examination. Novak=s counsel explained their reasons for not objecting to testimony
regarding Novak=s alleged controlling nature during a meeting with the State and the court in
chambers. Novak=s counsel was concerned that the District Court would admit the evidence
regarding Novak=s controlling personality following admission of the video-taped interview
in which Novak admitted to having a sexual relationship with Elizabeth. Defense counsel
made an apparent tactical decision in anticipation of their defense to allow that evidence to
come in during the State=s case-in-chief rather than as rebuttal evidence to Novak=s
testimony.
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¶21 The District Court recognized that it would be improper to ask Novak=s counsel to
disclose their entire defense strategy, as this would “tip [their] hand to the State.” The court
acknowledged during a subsequent recess that evidence of Novak=s controlling nature would
be relevant to the issue of Elizabeth=s reluctance to disclose her sexual relationship with
Novak sooner. The court further acknowledged that Novak=s counsel=s failures to object to
certain testimony were in anticipation of its defense, and because the court could not require
them to disclose their strategy, the court expressed its understanding that it would rule on
objections as they were made.
¶22 Because of the discretion that Novak=s counsel exercised regarding disclosure of their
defense strategy, it is clear that the record does not explain all of their tactical reasons for
failing to object in the manner suggested on appeal. The record does reveal, however, that
tactical reasons may have justified certain of their decisions. Decisions regarding the number
and timing of objections lie within counsel=s tactical discretion and should be barred from
record-based review. White, & 16. A post-conviction proceeding would allow counsel to
explain entirely their tactical decisions. The ineffective assistance of counsel claim therefore
is dismissed without prejudice to its being raised in a post-conviction relief proceeding.
State v. Hendricks, 2003 MT 223, & 12, 317 Mont. 177, & 12, 75 P.3d 1268, & 12.
¶23 Whether the District Court abused its discretion in denying Novak=s motion for a
mistrial.
¶24 Novak argues that the District Court abused its discretion in denying his motion for a
mistrial. Novak asserts that comments made by the State in its rebuttal closing statement
denied him his right to a fair trial. Novak argues that the State had no justification for
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making arguments irrelevant to the charges, such as characterizing Novak=s relationship with
Elizabeth as incestuous and urging the jury to consider Jonestown and the church sex abuse
scandals. The State counters by arguing that the District Court=s ruling was within its
discretion and should be affirmed.
¶25 The standard applied by a district court when ruling on a motion for a mistrial is
whether the defendant was denied a fair and impartial trial. State v. Gladue, 1999 MT 1, &
11, 293 Mont. 1, & 11, 972 P.2d 827, & 11. A trial court=s denial of a motion for a mistrial is
entitled to deference on appeal and should not be second guessed by this Court. State v.
Flores, 1998 MT 328, & 17, 292 Mont. 255, & 17, 974 P.2d 124, & 17. We will affirm the
District Court=s decision if the trial judge acted rationally and responsibly. Flores, & 12.
¶26 A mistrial represents an exceptional remedy, thus remedial action short of a mistrial is
preferred unless the ends of justice require otherwise. Flores, & 17. In Flores, the defendant
moved for a mistrial after the State arrested a defense witness in the presence of the jury.
Flores, && 13-14. Following the arrest, the court admonished the jury not to consider the
arrest in evaluating the witness=s testimony. Flores, & 13. We held that the court=s
cautionary instruction served the ends of justice and thus the district court did not abuse its
discretion in denying Flores= motion for a mistrial. Flores, && 17-18.
¶27 The District Court found improper several of the State=s remarks made in its rebuttal
closing. Novak=s counsel moved for a mistrial based on these inflammatory remarks. The
District Court carefully considered the motion and recessed to research whether the
inflammatory remarks warranted a mistrial. The court determined that, though some of the
remarks were improper, they did not “create such a prejudice that the Defendant did not
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receive a fair trial.” The court noted that it instructed the jury not to consider the remarks of
counsel as evidence, and to disregard remarks that were not supported by the evidence in the
record.
¶28 The District Court acted rationally and responsibly in denying Novak=s motion for a
mistrial. The court carefully researched the issue before making its determination. As in
Flores, the court reasoned that the jury instruction sufficiently cured any potential injustice.
Because of the deference afforded to a district court=s ruling on a motion for mistrial, and our
reluctance to second-guess its determination, Flores, & 17, we hold that the District Court
did not abuse its discretion in denying Novak=s motion. We caution the State, however, to
refrain from tactics that may fall below the established norms of professional conduct. State
v. Statczar (1987), 228 Mont. 446, 457, 743 P.2d 606, 613. We will not hesitate to act
against inappropriate tactics. State v. Stringer (1995), 271 Mont. 367, 897 P.2d 1063.
¶29 Whether this Court should apply the plain error doctrine to review Novak=s
claims on appeal.
¶30 Novak argues that defense counsel=s failure to object to prejudicial, inadmissible
evidence compromised his right to a fair trial. He argues that this Court should apply the
plain error doctrine to review these failures to object on appeal.
¶31 We will review a claim notwithstanding its being raised for the first time on appeal
under the plain error doctrine if failure to do so may result in a manifest miscarriage of
justice, may leave unsettled the question of the fundamental fairness of the trial, or may
compromise the integrity of the judicial process. State v. Bateman, 2004 MT 281, & 20, 323
Mont. 280, & 20, 99 P.3d 656, & 20.
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¶32 Novak=s claims are insufficient to invoke plain error review. His claims of ineffective
assistance of counsel encompass all of the alleged errors. Novak may raise these issues in
post-conviction proceedings. We therefore decline to apply the plain error doctrine.
¶33 Whether the cumulative error doctrine entitles Novak to a new trial.
¶34 Novak argues that numerous serious errors throughout the course of the trial warrant
reversal under the cumulative error doctrine. He argues that the incorrect preliminary jury
instruction, defense counsel=s failure to raise objections to the admission of certain evidence,
and the denial of Novak=s motion for a mistrial constitute the cumulative errors that require
reversal.
¶35 The cumulative error doctrine refers to a number of errors that, taken together,
prejudice a defendant=s right to a fair trial. State v. Flowers, 2004 MT 37, & 46, 320 Mont.
49, & 46, 86 P.3d 3, & 46. Reversal is required under this doctrine once such accumulated
errors are identified as having prejudiced a defendant=s right to a fair trial. Flowers, & 46.
The existence of prejudice, however, must be proven by the defendant--mere allegations of
error without proof of prejudice are inadequate to satisfy the doctrine. Flowers, & 46.
¶36 We decline to apply the cumulative error doctrine to Novak=s claims. The alleged
errors are the District Court=s denial of Novak=s motion for a mistrial, and other errors that
are addressed within his ineffective assistance of counsel claims. These claims were
considered separately above. Application of the cumulative error doctrine is thus not
appropriate in this case.
¶37 Affirmed.
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Justice
We Concur:
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Chief Justice
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Justices
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