May 5 2010
DA 09-0503
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 98
KELLY DEAN WORTHAN,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DV 07-51
Honorable James A. Haynes, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Colin M. Stephens; Smith & Stephens, P.C.; Missoula, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Micheal S. Wellenstein,
Assistant Attorney General; Helena, Montana
George Corn; Ravalli County Attorney; Hamilton, Montana
Submitted on Briefs: March 10, 2010
Decided: May 4, 2010
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Appellant Kelly Dean Worthan (Worthan) appeals from the order of the Twenty-
First Judicial District Court, Ravalli County, denying his petition for post-conviction
relief.
¶2 We consider the following issues on appeal:
¶3 1. Whether Worthan’s counsel’s failure to produce Dr. Michael Scolatti for
testimony at trial violated Worthan’s constitutional rights to the effective assistance of
counsel.
¶4 2. Whether Worthan’s counsel’s failure to ascertain the qualifications of expert
witness David Stube violated Worthan’s constitutional rights to the effective assistance
of counsel.
FACTUAL AND PROCEDURAL BACKGROUND
¶5 This case arises out of Worthan’s trial and convictions for two counts of sexual
intercourse without consent, felonies, in violation of § 45-5-502, MCA, two counts of
incest, felonies, in violation of § 45-5-502, MCA, and one count of tampering with a
witness, a felony, in violation of § 45-7-206, MCA. For these convictions, the District
Court sentenced Worthan to a total of 130 years in Montana State Prison with 60 years
suspended. Worthan appealed his convictions alleging that his trial attorney Kelli Sather
(Sather) provided ineffective assistance of counsel. With respect to his initial appeal, we
concluded that Sather’s questioning of a social worker did not amount to ineffective
assistance of counsel and that the record was insufficient to address Worthan’s additional
ineffective assistance of counsel claims. Accordingly, we deemed his additional claims
appropriate for consideration in a petition for post-conviction relief.
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¶6 On January 29, 2007, Worthan filed the pro se petition for post-conviction relief
that is the subject of this appeal. Among other things, Worthan claimed that his rights to
effective assistance of counsel were violated by Sather’s failure to adequately investigate
expert witness David Stube’s (Stube) credentials and by her promise and subsequent
failure to call Dr. Michael Scolatti (Dr. Scolatti) to testify. After an evidentiary hearing,
the District Court denied Worthan’s petition concluding that he failed to demonstrate
ineffective assistance of counsel.
¶7 Worthan appeals.
STANDARD OF REVIEW
¶8 This Court reviews a district court’s denial of a petition for post-conviction relief
to determine whether its findings of fact are clearly erroneous and its conclusions of law
are correct. Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861. Claims of
ineffective assistance of counsel are mixed questions law and fact which this Court
reviews de novo. Whitlow, ¶ 9.
DISCUSSION
¶9 1. Whether Worthan’s counsel’s failure to produce Dr. Michael Scolatti for
testimony at trial violated Worthan’s constitutional rights to the effective assistance of
counsel.
¶10 The right to effective assistance of “counsel in criminal prosecutions is guaranteed
by the Sixth and Fourteenth Amendments to the United States Constitution and by
Article II, Section 24 of the Montana Constitution.” Whitlow, ¶ 10. When confronted
with an ineffective assistance of counsel claim we apply the two-part test set forth in
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Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and
adopted by this Court in Whitlow. Under this test, the defendant must demonstrate
(1) that counsel’s representation was deficient and (2) that counsel’s deficiency was
prejudicial to the defense. Strickland, 446 U.S. at 687, 104 S. Ct. at 2064; Whitlow, ¶ 10.
In order to eliminate the distorting effects of hindsight, we have explained that judicial
scrutiny of counsel’s performance must be highly deferential. Whitlow, ¶ 15.
Accordingly, the defendant “‘must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.’” See
Whitlow, ¶ 21 (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). Indeed, this
presumption undergirds our conclusion that a defendant bears a heavy burden in order to
prevail on a claim of ineffective assistance of counsel. Whitlow, ¶ 21. Having set out the
appropriate analytical approach, we now turn to the first prong of our test which, as it
applies to the case before us, requires that we determine whether Sather’s failure to
produce Dr. Scolatti as an expert witness was deficient.
¶11 With respect to the first prong, the District Court concluded that “[t]o the extent
that Ms. Sather promised the jury that Dr. Scolatti would testify that [Worthan’s
Daughters] O.W. and/or K.W. were not credible, Ms. Sather’s professional conduct was
deficient . . . .” On appeal, Worthan maintains that the District Court properly
determined Sather’s conduct to be deficient under the first prong of the Strickland test.
The State does not directly contest this conclusion. Rather, the State argues that, even
assuming Sather acted deficiently by failing to call Dr. Scolatti after she promised the
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jury she would do so, this deficiency did not prejudice Worthan and therefore did not
violate his rights to effective assistance of counsel. We agree with the State that, if
Sather’s conduct did not prejudice Worthan, the issue of whether her conduct was
deficient becomes immaterial. Accordingly, we turn our attention to the second prong of
the Strickland test.
¶12 Under the second prong, the District Court must determine whether the failure to
call Dr. Scolatti as a promised expert witness prejudiced Worthan’s defense. Strickland,
466 U.S. at 687, 104 S. Ct. at 2064. In its conclusion that Worthan’s defense was not
prejudiced the District Court reasoned that, rather than supporting Worthan, Dr. Scolatti’s
testimony would actually have damaged Worthan’s case. Worthan maintains however,
that this conclusion was in error. To make this argument, Worthan analogizes Sather’s
unfulfilled promise to call Dr. Scolatti to cases from other jurisdictions in which a
defendant was deemed to have been prejudiced by counsel’s failure to produce promised
evidence or testimony.
¶13 Worthan relies first on Anderson v. Butler, 858 F.2d 16 (1st Cir. 1988), in which
the First Circuit Court of Appeals held that a violation of the right to the effective
assistance of counsel occurred because the defendant’s attorney did not fulfill his promise
to the jury that he would call a psychiatrist to testify that during the killing the defendant
was acting “without any appreciation of what was happening . . .” and “was like a robot
programmed on destruction.” Anderson, 858 F.2d at 17. Worthan next points to State v.
Moorman, 358 S.E.2d 502 (N.C. 1987), in which the Supreme Court of North Carolina
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held that it was a violation of the defendant’s right to effective assistance of counsel
when counsel promised to produce evidence that the defendant was incapable of
engaging in sexual acts but failed to produce such evidence. Finally, Worthan presents
People v. Davis, 677 N.E.2d 1340 (Ill. App. 1997), in which the Appellate Court of
Illinois concluded that there was prejudice when the defense counsel failed to fulfill his
promise to offer the defendant’s testimony. Each of these cases however, can be
distinguished from the facts presently before us.
¶14 In Anderson, the defense counsel failed to call a promised expert witnesses whose
testimony he claimed would show that on the night of the killing the defendant was
“walking unconsciously toward a psychological no exit . . . [w]ithout any feeling, without
any appreciation of what was happening, [the defendant] on that night was like a robot
programmed on destruction.” Anderson, 858 F.2d at 17. In concluding that the
defendant’s rights were prejudiced, the Anderson court explained that “[t]he promise was
dramatic, and indicated testimony strikingly significant.” Anderson, 858 F.2d at 17. By
comparison, Sather explained to the jury that
[y]ou will also hear from Dr. Scolatti, who reviewed the forensic interviews
of the three children that Dr. Miller did on the children. He has also done
numerous forensic interviews and has worked with children and done this,
and he comes to a little different conclusion than Dr. Miller. He may agree
with some of the techniques she used; but in reviewing the videotapes and a
lot of other information, he comes to a different conclusion on what he
thinks the outcome of [O.W.’s] interview was.
Far from being dramatic and strikingly significant, Sather’s rather generic description of
Dr. Scolatti’s testimony can hardly be said to have had the same prejudicial effect on the
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jury as the “strikingly significant” statements in Anderson. Furthermore, in Anderson the
impact of the defense counsel’s unfulfilled promise was heightened because it occurred
only one day before the defense rested. Whereas here, Sather’s far less dramatic
statement was made six days before Worthan’s defense rested.
¶15 Moorman and Davis are also distinguishable from the case at bar. In Moorman, in
addition to reasoning that the defense counsel’s unfulfilled promise to present “one
critical piece of evidence” was deficient, the court also referred to the defense counsel’s
lack of credibility as a result of his abuse of prescription drugs, apparent inattentiveness
and sleeping at trial. Here, Sather made no similar claim that Dr. Scolatti’s testimony
would unequivocally demonstrate Worthan’s innocence and there is clearly no contention
that Sather was inattentive. In Davis, defense counsel promised the jury that the
defendant, who was charged with murder, would testify as to his whereabouts on the
night of the murder. Ultimately, counsel failed to call the defendant and the court
concluded that this violated the defendant’s right to the effective assistance of counsel.
However, in contrast to Worthan’s claims, the Davis court’s conclusion that this
deficiency was prejudicial turned on the fact that defense counsel had also failed to
investigate the defendant’s criminal history or to obtain a ruling on whether the
defendant’s prior drug conviction was admissible. In addition, the court noted that
defense counsel’s unfulfilled promise to have the defendant testify amounted to a failure
to “present the most important piece of evidence he had promised to produce . . . .”
Sather’s generic comments regarding Dr. Scolatti’s testimony are not comparable to the
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defense counsel’s promise to produce the defendant in Davis. Thus, we do not find
Anderson, Moorman and Davis to be persuasive.
¶16 It is well established that in order to meet the second prong of the Strickland test
the defendant must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Here, not only are the cases
Worthan relies on distinguishable but the evidence does not support the conclusion that it
is reasonably probable that, but for Sather’s unfulfilled promise to present Dr. Scolatti,
the result of the proceeding would have been different. In fact, as the District Court notes
in its decision, far from punching holes in the State’s case, Dr. Scolatti’s testimony
during sentencing actually supported the conclusion that the State forensic interviews
were conducted in a professional and proper manner. Furthermore, we are not persuaded
by Worthan’s contention that he was prejudiced by reference to Sather’s unfulfilled
promise to call Dr. Scolatti in the State’s closing and rebuttal arguments. Having sifted
through the transcripts we find no reference in the State’s closing or rebuttal arguments to
either Dr. Scolatti or Sather’s unfulfilled promise to call him as an expert witness. For
these reasons, we affirm the District Court’s conclusion that Worthan has failed to
demonstrate that Sather’s statements regarding Dr. Scolatti prejudiced his defense.
Accordingly, we conclude that Worthan’s rights under the United States and Montana
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Constitutions to the effective assistance of counsel were not violated by Sather’s
unfulfilled promise to call Dr. Scolatti as an expert witness.
¶17 2. Whether Worthan’s counsel’s failure to ascertain the qualification of expert
witness David Stube violated Worthan’s rights to the effective assistance of counsel.
¶18 On appeal, Worthan argues that Sather’s failure to discover that “Dr.” Stube had
received his Ph.D. from an unaccredited school and that he was therefore not a Doctor,
rendered her assistance ineffective and prejudiced his defense. The State counters that
Sather’s investigation of Stube’s qualifications as an expert were sufficiently thorough so
as to preclude the conclusion that Sather was ineffective. In its resolution of the issue the
District Court concluded that, under the first prong of the Strickland test, Worthan failed
to demonstrate that Sather’s performance was deficient. We agree.
¶19 Turning once again to the first prong of the Strickland test, which requires a
determination of whether the attorney’s actions were deficient, we begin by reiterating
that “‘the proper measure of attorney performance remains simply reasonableness under
prevailing professional norms.’” See Whitlow, ¶ 32 (quoting Strickland, 466 U.S. at 688,
104 S. Ct. at 2065). “[A] reviewing court ‘must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.’”
Whitlow, ¶ 21 (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065).
¶20 Here, while Sather failed to ascertain that Stube’s credential was invalid, that
failure does not fall outside the wide range of reasonable professional assistance in this
instance. As the District Court notes, prior to Stube testifying at trial, Sather met with
Stube, obtained and reviewed his curriculum vitae, discussed his Ph.D. degree with him
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and satisfied herself that Stube was a qualified expert witness. The record also indicates
that Stube represented to Sather at the time of their meeting that he had been qualified as
an expert witness on approximately fifty previous occasions. Furthermore, Stube’s sworn
testimony during the State’s examination indicates that he glossed over or even mislead
Sather as to the status of his Ph.D. While we are mindful of counsel’s duty to conduct a
reasonable investigation, State v. Hagen, 2002 MT 190, ¶ 26, 311 Mont. 117, 53 P.3d
885, we are satisfied that in this instance, Sather performed her duties in a manner
consistent with her responsibilities as defense counsel. By meeting with Stube and
reviewing what she thought to be his legitimate credentials, Sather performed her basic
duties as defense counsel. Thus, we affirm the District Court and conclude that Worthan
has failed to overcome the strong presumption that Sather’s conduct fell within the wide
range of reasonable professional assistance. Worthan’s rights to the effective assistance
of counsel were not violated.
¶21 Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ MIKE McGRATH
/S/ PATRICIA O. COTTER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
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