No.04-613
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 189
STATE OF MONTANA,
Plaintiff and Respondent,
v.
WILLIAM PAUL AULD,
Defendant and Appellant.
APPEAL FROM: The District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause DC 03-325,
Honorable John S. Henson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Helena, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Pamela P. Collins,
Assistant Attorney General, Helena, Montana
Fred Van Valkenburg, County Attorney; Karen S. Townsend,
Deputy County Attorney, Missoula, Montana
Submitted on Briefs: January 31, 2006
Decided: August 16, 2006
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 William Auld (Auld) appeals the judgment and sentence entered in the Fourth
Judicial District Court, Missoula County, upon a jury verdict finding him guilty of assault
and tampering with a witness. We affirm.
¶2 We consider the following issues on appeal:
¶3 Should this Court exercise plain error review to examine whether the State
improperly combined two instances of tampering with a witness into a single criminal
charge, thereby depriving Auld of his constitutional right to a unanimous jury verdict?
¶4 Did Auld’s counsel render ineffective assistance by stipulating that an official
proceeding was ongoing or about to be commenced and thus concede an element of the
witness tampering charge?
¶5 Did the District Court err by ordering that Auld’s ten-year sentence for tampering
with a witness would run consecutively to Auld’s previous criminal sentence from
Hawaii?
BACKGROUND
¶6 On June 24, 2003, Auld was involved in a bar fight in Missoula’s 10th Street
Tavern with one of the bar’s regulars, George Bruun (Bruun). Auld punched Bruun and
kicked him repeatedly in the head.
¶7 Auld previously had been convicted in 1996 of burglary and theft in the first
degree in Maui County, Hawaii, and sentenced to ten years imprisonment, but he had
been released on parole on May 1, 2003. Auld was on parole at the time of the fight.
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¶8 Detective Joe Gaffney investigated the incident. On June 26, 2003, Detective
Gaffney conducted a telephone interview of Chad Onthank (Onthank), Auld’s roommate
who had witnessed the fight. A few days later, in a conversation with a third party about
the fight in Onthank’s presence, Auld related his version of events. Onthank privately
did not agree with Auld’s version, but he “went along” with it. Auld asked Onthank to
call Detective Gaffney and tell him that Auld and Onthank were not drinking at the bar
on the night of the fight and that Amy Nile, Onthank’s girlfriend who worked at the bar,
had called them there to beat up Bruun and his friend. Auld dialed Detective Gaffney’s
number and handed Onthank the telephone, but Onthank just left a message.
¶9 On July 1, 2003, Auld, having been arrested earlier that day, called Onthank from
the Missoula County jail. During that telephone call, which was recorded, Auld asked
Onthank to tell Rich Miller (Miller), Auld’s parole officer, that Auld and Onthank had
not been drinking on the night of the fight. Auld also requested that Onthank tell the
police that Bruun was about to pull a knife when Auld attacked him. According to
Onthank, neither of these things was true.
¶10 Auld was charged with criminal endangerment, tampering with witnesses or
informants, and assault (Counts I, II, and III, respectively). After a trial on February 13,
2004, Auld was found guilty of the lesser charge of assault under Count I and guilty on
Count II. He was found not guilty on Count III. Auld was sentenced to six months
imprisonment for Count I and ten years imprisonment for Count II, to run concurrently
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with each other but to run consecutively with any sentence imposed by the State of
Hawaii. Auld appeals.
STANDARD OF REVIEW
¶11 We articulated the standards for applying plain error review in State v. Finley
(1996), 276 Mont. 126, 137-38, 915 P.2d 208, 215, overruled on other grounds by State
v. Gallagher, 2001 MT 39, 304 Mont. 215, 19 P.3d 817:
[T]his Court may discretionarily review claimed errors that implicate a
criminal defendant’s fundamental constitutional rights, even if no
contemporaneous objection is made . . . where failing to review the claimed
error at issue may result in a manifest miscarriage of justice, may leave
unsettled the question of the fundamental fairness of the trial or
proceedings, or may compromise the integrity of the judicial process. . . .
[W]e will henceforth use our inherent power of common law plain error
review sparingly, on a case-by-case basis . . . .
¶12 In State v. Worthan, 2006 MT 147, ¶¶ 13-14, 332 Mont. 401, ¶¶ 13-14, ___ P.3d
__, ¶¶ 13-14, we described the applicable standard for reviewing claims of ineffective
assistance of counsel:
To prevail on a claim of ineffective assistance of counsel, a
defendant must show that his “counsel’s performance fell below an
objective standard of reasonableness” and he must demonstrate prejudice,
i.e., “the existence of a reasonable probability that the result of the
proceeding would have been different absent counsel’s unprofessional
errors.” State v. Harris, 2001 MT 231, ¶¶ 18-19, 306 Mont. 525, ¶¶ 18-19,
36 P.3d 372, ¶¶ 18-19 (citing Strickland v. Washington (1984), 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674).
In addition, “[t]he trial record must adequately document a
challenged act or omission of defense counsel for a defendant to raise an
ineffective assistance claim on appeal. In addition to documenting the error,
the record available to this Court on appeal must afford sufficient
understanding of the reasons for counsel’s act or omission to answer the
threshold question of whether the alleged error expresses a trial strategy or
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tactical decision. If the record does not supply the reason for counsel’s act
or omission, the claim must be raised by petition for post-conviction relief.”
Harris, ¶ 21 (citations omitted).
¶13 “We review a criminal sentence for legality only.” State v. Miller, 2006 MT
159, ¶ 7, 332 Mont. 472, ¶ 7, _ P.3d _, ¶ 7.
DISCUSSION
¶14 Should this Court exercise plain error review to examine whether the State
improperly combined two instances of tampering with a witness into a single
criminal charge, thereby depriving Auld of his constitutional right to a unanimous
jury verdict?
¶15 Auld contends that the State alleged multiple instances of tampering with a
witness in a single charge. Count II of the Information read as follows:
On or about June 24-July 8, 2003, the above-named Defendant,
knowing that an official proceeding or investigation was pending,
purposely or knowingly attempted to induce a witness, Chad Onthank, to
inform falsely by trying to get him to tell authorities that he had not been
drinking in a bar and that the man that the Defendant had kicked had started
the fight.
Auld argues that the charge referred to two separate incidents: Auld’s request that
Onthank lie to Detective Gaffney about the circumstances of the fight and Auld’s request
that Onthank lie to Miller about drinking at the bar, in violation of the conditions of his
parole.
¶16 In addition, Auld points out that one element of tampering with a witness is that
the accused must believe that an official proceeding or investigation is ongoing or about
to be commenced. See § 45-7-206, MCA. Auld contends that there were two “official
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proceedings” at issue: the police investigation of the bar fight and the parole officer’s
oversight of Auld’s compliance with the terms of his parole. As a result of this allegedly
improper combination of separate instances of tampering with a witness into one charge,
Auld asserts that his constitutional right to a unanimous jury verdict has been violated
and that this Court should exercise plain error review.
¶17 We reemphasize that defendants should make contemporaneous objections to
perceived errors. Finley, 276 Mont. at 138, 915 P.2d at 215. Auld never raised an
objection to the Information on the basis that it improperly offered alternative means for
the jury to convict on the alleged offense—allowing this matter to proceed to trial and
verdict without bringing the issue to the attention of the District Court—and, further, he
stipulated to the jury instructions. Auld’s contentions and the record fail to persuade us
that declining to review the claimed error for plain error “may result in a manifest
miscarriage of justice, may leave unsettled the question of the fundamental fairness of the
trial or proceedings, or may compromise the integrity of the judicial process.” Finley,
276 Mont. at 137, 915 P.2d at 215; see also State v. Hill, 2005 MT 216, ¶¶ 25-26, 328
Mont. 253, ¶¶ 25-26, 119 P.3d 1210, ¶¶ 25-26 (declining to exercise plain error review
where defendant failed to object to Information). Therefore, we decline to exercise plain
error review.
¶18 Did Auld’s counsel render ineffective assistance by stipulating that an official
proceeding was ongoing or about to be commenced and thus concede an element of
the witness tampering charge?
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¶19 The following stipulation was read into the record at trial:
It is stipulated between the parties that in June and July of 2003, the
defendant, William Auld, was not permitted to go into bars or consume
alcohol.
Rich Miller, an employee of a governmental agency was responsible
for enforcing those rules. Rich Miller began an investigation to see if
William Auld had violated those rules after the incident at the 10th Street
Tavern. That investigation is considered an official proceeding as defined
by Montana State law.
¶20 Auld argues that his trial counsel rendered ineffective assistance by entering into
this stipulation, effectively conceding in the last sentence an element of the offense of
tampering with a witness, which is defined in § 45-7-206, MCA:
(1) A person commits the offense of tampering with witnesses and
informants if, believing that an official proceeding or investigation is
pending or about to be instituted, he purposely or knowingly attempts to
induce or otherwise cause a witness or informant to:
(a) testify or inform falsely . . . .
Auld contends that the last sentence of the stipulation “transformed” the stipulation “from
an agreement on the facts to a legal conclusion equivalent to a jury instruction.” In
addition, Auld argues that “[r]ather than shielding the jury from his prior criminal history,
the vague information from the stipulation left the jury to guess about the nature of
Auld’s prior crimes.” The ineffective assistance was exacerbated, Auld posits, because
Miller was permitted to testify at trial.
¶21 Auld’s argument is unavailing. The record reveals that the stipulation was entered
into for strategic reasons, namely so that the jury would not hear that Auld was on parole
at the time the offenses took place. “Counsel’s trial tactics and strategic decisions cannot
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be the basis upon which to find ineffective assistance of counsel.” Worthan, ¶ 21
(quoting State v. Grixti, 2005 MT 296, ¶ 25, 329 Mont. 330, ¶ 25, 124 P.3d 177, ¶ 25).
Therefore, we affirm the judgment of conviction.
¶22 Did the District Court err by ordering that Auld’s ten-year sentence for
tampering with a witness would run consecutively to Auld’s previous criminal
sentence from Hawaii?
¶23 Auld asserts that the “plain language of the consecutive sentence statute does not
allow a consecutive sentence to be imposed when the previous conviction originates from
a court in another state . . . .”
¶24 The statute at issue is § 46-18-401, MCA, which reads as follows:
(1) Unless the judge otherwise orders:
(a) whenever a person serving a term of commitment imposed by a
court in this state is committed for another offense, the shorter term or
shorter remaining term may not be merged in the other term; and
(b) whenever a person under suspended sentence or on probation for
an offense committed in this state is sentenced for another offense, the
period still to be served on suspended sentence or probation may not be
merged in any new sentence of commitment or probation.
....
(4) Separate sentences for two or more offenses must run
consecutively unless the court otherwise orders.
Auld maintains that the key statutory language in support of his argument is the phrase
“in this state” found in subsections (1)(a) and (1)(b), contending that the statute “simply
permits the imposition of a consecutive sentence in relation to offenses committed in this
state, and sentences imposed by Montana courts.”
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¶25 We disagree that subsection (1) contains the decisive language on this issue.
Instead, we read subsection (4) as clearly indicating that the public policy of Montana is
to have sentences, wherever imposed, run consecutively unless otherwise ordered by a
court. Cf. Miller, ¶ 10 (§ 46-18-401(4), MCA, does not provide that defendant should
receive credit on suspended commitment in Montana for time spent in an Indiana prison
on a separate conviction). Therefore, we affirm the sentence imposed by the District
Court.
¶26 Affirmed.
/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
Justice James C. Nelson dissents and concurs.
¶27 I dissent from the Court’s Opinion as to issues one and three and I concur with the
Court’s decision as to issue two.
¶28 Consistent with my positions in State v. Weaver, 1998 MT 167, ¶¶ 22-40, 290
Mont. 58, ¶¶ 22-40, 964 P.2d 713, ¶¶ 22-40; State v. Harris, 1999 MT 115, ¶¶ 35-36, 294
Mont. 397, ¶¶ 35-36, 983 P.2d 881, ¶¶ 35-36 (Nelson, J., concurring); State v. Allum,
2005 MT 150, ¶¶ 59-64, 327 Mont. 363, ¶¶ 59-64, 114 P.3d 233, ¶¶ 59-64 (Nelson, J.,
dissenting); and State v. Gallagher, 2005 MT 336, ¶ 35, 330 Mont. 65, ¶ 35, 125 P.3d
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1141, ¶ 35 (Nelson, J., concurring), I would reach the specific unanimity instruction issue
via plain error review. Accordingly, to that extent, I do not agree with the Court’s
resolution of issue one.
¶29 As to issue three, I also disagree with the Court’s analysis. It is perfectly clear that
under § 46-18-401(1)(a) and (b), MCA, the only commitments and offenses which are
encompassed within the statute are, respectively, those imposed by a court in this State
and those committed in this State. If the Legislature had envisioned that out-of-state
offenses would be included in the requirements of the statute, it would have said so. The
Court reads § 46-18-401(4), MCA, in isolation from subsection (1). In so doing, the
Court ignores the admonition of § 1-2-101, MCA, that requires that “[w]here there are
several provisions or particulars [of a statute], such a construction is, if possible, to be
adopted as will give effect to all.”
¶30 For these reasons I dissent as to issues one and three. As noted, I concur as to
issue two.
/S/ JAMES C. NELSON
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