July 20 2010
DA 09-0629
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 157N
BARRY ALONZO HEATH,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. DV 07-165
Honorable Thomas M. McKittrick, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joslyn Hunt, Chief Appellate Defender; Lisa S. Korchinski,
Assistant Appellate Defender, Helena, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Deborah F. Butler,
Assistant Attorney General, Helena, Montana
John Parker, Cascade County Attorney; Great Falls, Montana
Submitted on Briefs: June 15, 2010
Decided: July 20, 2010
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2006, the following decision shall not be cited as
precedent. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court cause number and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
BACKGROUND
¶2 Heath was convicted after a jury trial in 2002 of sexual intercourse without
consent and witness tampering. After an appeal, a remand for re-sentencing, and a
second unsuccessful appeal, Heath filed a petition for postconviction relief in 2007. He
contended that his trial attorney provided him ineffective assistance of counsel. He now
contends that his original postconviction relief attorneys did so as well. The District
Court denied the petition and Heath appealed. In 2009 this Court reversed and remanded
to the District Court for a hearing. Heath v. State, 2009 MT 7, 348 Mont. 361, 202 P.3d
118. The District Court held an evidentiary hearing in April, 2009 and the parties filed
briefs. In October, 2009, the District Court issued an extensive order considering each of
Heath’s allegations of ineffective assistance of counsel, and denied Heath’s petition.
STANDARD OF REVIEW
¶3 This Court reviews a district court’s decision on a petition for postconviction relief
to determine whether the findings of fact are clearly erroneous and whether the
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conclusions of law are correct. Hamilton v. State, 2010 MT 25, ¶ 7, 355 Mont. 133, 226
P.3d 588. Claims of ineffective assistance of counsel are evaluated under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984); State v. Hendricks, 2003 MT 223, ¶
6, 317 Mont. 177, 75 P.3d 1268.
DISCUSSION
¶4 Heath alleges a wide range of acts or omissions that he contends support the
conclusion that he was denied effective assistance of counsel at trial. The District Court
carefully reviewed Heath’s allegations and denied relief in a thorough and well-reasoned
50-page opinion. The District Court found that in many instances Heath was not a
credible witness and that implementing Heath’s preferences on witnesses and evidence
would often have significantly prejudiced his defense. Heath, for example, faults his
attorney for not opening up the issue of Heath’s character, despite the fact that it would
have exposed him to proof of such things as his prior conviction for felony stalking, prior
restraining orders, his temper and anger issues, prior fights and more. Heath claimed at
the postconviction hearing that he had “nothing to hide” and was willing to take the
chance of such evidence coming before the jury.
¶5 Heath also makes much of his attorney’s failure to conduct a reenactment of the
crime for the jury, the purpose of which would be to show that the assault could not have
happened in the confined space of the kitchen in the way the victim described. Heath
never explains exactly how such a reenactment could have been staged in a courtroom.
He also again refuses to accept the District Court’s conclusion that attempting such a
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reenactment was a very risky tactic and could have served to illustrate that in fact the
assault could have occurred as the victim testified.
¶6 Heath has not demonstrated that any of the District Court’s findings of fact are
clearly erroneous. It is clear that the District Court correctly applied the proper legal
standards from Strickland and Hendricks as to each of Heath’s allegations of ineffective
assistance. The order of the District Court denying Heath’s petition for postconviction
relief is therefore affirmed.
/S/ MIKE McGRATH
We concur:
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE
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