State v. Wright

May 3 2011

DA 10-0026

IN THE SUPREME COURT OF THE STATE OF MONTANA

2011 MT 92

STATE OF MONTANA,

Plaintiff and Appellee,

v.

TIMOTHY MICHAEL WRIGHT,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DC-08-20 AX
Honorable Mike Salvagni, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Nancy G. Schwartz, NG Schwartz Law, PLLC, Billings, Montana

For Appellee:

Steve Bullock, Montana Attorney General, Sheri K. Sprigg, Assistant
Attorney General, Helena, Montana

Marty Lambert, Gallatin County Attorney, Ashley Whipple, Deputy
County Attorney, Bozeman, Montana

Submitted on Briefs: December 15, 2010

Decided: May 3, 2011

Filed:

_________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1 Timothy Michael Wright was convicted of sexual intercourse without consent

following a three-day jury trial in the Eighteenth Judicial District Court, Gallatin County.

He now appeals, arguing that his right to due process was violated by the false and

misleading presentation of DNA evidence, and also that he received ineffective assistance

of counsel. We affirm Wright’s conviction but dismiss, without prejudice, his ineffective

assistance of counsel claim. He may pursue that claim through a timely petition for

postconviction relief.

BACKGROUND

¶2 The evening of January 11, 2008, Wright picked up Sierra (the victim in this case)

for their first or second date. They had known each other for about six months but had

just recently begun a dating relationship. That evening, they went to various bars in the

Bozeman area and spent time socializing at the home of Wright’s employer. Wright and

Sierra consumed several beers and so-called “Jägerbombs”—a mixture of Jägermeister

and Red Bull. They also smoked some marijuana.

¶3 At around midnight or 1:00 a.m., Sierra asked Wright to drive her home. They got

into the pickup Wright had borrowed for the evening and headed toward Belgrade, where

they both lived. Along the way, Sierra felt lightheaded and laid down with her head on

Wright’s lap. They continued to converse, and Sierra told Wright that she was not

looking for sex, but was looking for a relationship.

¶4 While Wright’s and Sierra’s stories are consistent as to the foregoing events, they

diverge as to what happened next. According to Wright, he took the Interstate 90

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frontage road from Bozeman to Belgrade. Along the way, Sierra told him that she

needed to go to the bathroom. Thus, Wright stopped at his parents’ house in Belgrade so

she could use the restroom there.

¶5 According to Sierra, however, Wright drove to the Cameron Bridge Fishing

Access, which is along a different route from Bozeman to Belgrade. When Sierra sat up

and saw where they were, she asked Wright, “What are you doing? I thought you were

going to take me home?” He responded, “I’m going to give you just what you don’t

want.” Wright told Sierra to take her clothes off, and when she refused, he took the keys

out of the pickup’s ignition and held them to Sierra’s throat. With his other arm, he took

Sierra’s pants and underwear off and forced his penis into her vagina. Sierra pleaded

with Wright to stop. She stated, “You don’t want to do this. You don’t want to do this,

Tim. Think about your children and my son.” She tried to push Wright off her, but he

was too strong. She reached for her cell phone in her coat pocket to call 911, but Wright

realized what she was doing and threw the phone in the back seat of the pickup.

¶6 Eventually, Wright stopped raping Sierra and stated, “I can’t believe I just did this

to you. I care about you and I like you.” Sierra asked whether he had ejaculated, and he

responded, “No.” She asked Wright to drive her home, but he stated, “I’m not going to

take you home because I don’t want to go to jail.” Sierra then suggested that he instead

take her to his house so they could cuddle and talk. (As Sierra later explained at trial, she

made this suggestion because she knew that Wright lived with his parents and she figured

that if she could get there, she could get help.) Wright agreed and drove toward his

parents’ house. Sierra sat right next to him in an effort to make him think that everything

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was okay and that she was not going to report him. When they reached his parents’

house, Wright initially refused to stop, but Sierra convinced him that she needed to go to

the bathroom and get a drink of water. Once inside, Sierra used the restroom and then,

while Wright was distracted by his dogs, she “bolted” into his parents’ bedroom and

woke them up.

¶7 According to Sierra, she told Wright’s dad (Jeffrey Rapp) that his son had just

raped her, and Rapp responded, “Well, call the cops.” According to Rapp, in contrast,

Sierra told him to “take me home right now or I’m going to call the police and say that

Tim tried to rape me.” In any event, Rapp refused to take Sierra anywhere. At her

request, however, Rapp went out to Wright’s pickup and retrieved Sierra’s cell phone

from the back seat. Sierra then used it to call 911 and report the rape. She remained in

Rapp’s bedroom on the phone with the 911 dispatcher until Sergeant Chuck Sprague with

the Belgrade Police Department arrived.

¶8 Sprague observed that Sierra “was terrified, she was crying, she was shaking. I

mean I could feel her trembling through my arm. She was clutching my arm so tight it

actually hurt. She just kept saying ‘Get me out of here. Get me out of here. I want to

leave.’ . . . She didn’t seem like she felt safe to me, so that became my focus was getting

her out of the house immediately.” Sprague took Sierra to the hospital for a rape

examination. The nurse who conducted the exam observed five areas of red, raised,

linear lines, plus a round area of redness, on Sierra’s neck. The nurse also noted burst

blood vessels, indicating that quite a bit of force had been used. In examining Sierra’s

genital area, the nurse observed a reddened area with indications of broken blood vessels

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on the inner left side of her vagina, a couple of inches past the opening, possibly caused

by blunt force trauma.

¶9 Based on Sierra’s report, investigators went to the Cameron Bridge Fishing

Access. There, they observed an area of melted snow which was consistent with a map

Sierra had drawn showing where the truck was parked during the rape. They also saw

tire tracks in the snow. The tread patterns of these tracks indicated that the vehicle had

two different sets of tires. The investigators compared these tread patterns to the tires on

Wright’s pickup and found them to be consistent.

¶10 No semen was found in Sierra’s vagina. Very small amounts of sperm were found

on her underwear, but Wright was specifically excluded as the contributor. When asked

to explain the presence of this sperm, Sierra opined that it may have come from a guy

with whom she had been sexually active a week or two earlier, or it may have transferred

from her roommate’s clothes in the wash.

¶11 The DNA evidence at issue in this appeal consists of testimony about a penile

swab which investigators obtained from Wright. Jennifer Revis, a forensic scientist with

the Department of Justice’s Forensic Science Division, analyzed the swab and compared

it against reference samples provided by Wright and Sierra. Revis was then called at trial

to testify about the findings set out in her DNA Report. At the outset, the prosecutor

asked Revis how many times she had testified before in court, and Revis replied,

“[T]wice.” With regard to the penile swab, Revis stated that she had developed a DNA

profile from epithelial cells and that this profile reflected a mixture of at least two

individuals. The “major profile” in the mixture matched the DNA profile of Wright’s

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reference sample, which was expected given that the sample had come from his penis.

Revis then testified that “[Sierra] cannot be excluded as a possible contributor to the

mixed DNA profile,” after which the following colloquy ensued:

Q. When you’re determining whether or not [Sierra’s] DNA is
on that penis, tell me what the language “cannot be excluded” means?
A. So that means that the 16 locations we looked at for a DNA
profile was at every of those 16 locations.
Q. So whose DNA is on that penis, that penile swab that you
examined at the Lab?
A. Well, it -- Timothy Wright and [Sierra] can’t be excluded as
contributing to that profile.
Q. If you -- if you’re finding her DNA, how come your
conclusion isn’t that she’s included in the profile? That confuses me.
A. At the Forensic Science Division we don’t use the word
“included.” Instead we use “cannot be excluded.” It basically means the
same thing. It’s just our terminology we use.

¶12 The prosecutor next inquired about Revis’s statement in her DNA Report that,

“[b]ased on national statistics, the estimated number of unrelated people in a random

population expected to have a DNA profile that could be included in this mixed DNA

profile” is 1 in 467,700 Caucasians, 1 in 2,351,000 Southwestern Hispanics, and 1 in

3,504,000 African-Americans:

Q. Can you explain -- let’s focus on the Caucasian statistic. Can
you explain that statistic to the jury? What’s it really mean?
A. So that means that in a population of 467,000 you would
expect that one person in that population could be included in this mixture.
Q. All right. How many -- what’s the population of the state of
Montana, do you know?
A. It’s approximately a million, just under.
Q. So in this particular scenario we’ve got a mixture of two
DNA’s, right?
A. Yes.
Q. Statistically speaking, then, I’m just -- I want to make sure I
understand you, is there only -- are there only two people in the state of
Montana that can contribute those particular profiles?

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 A. Yes. Statistically looking at the state of -- or the population
of Montana two people in Montana would contribute to this mixture.
Q. Those being whom according to your test results?
A. According to the test results Timothy Wright and [Sierra].

¶13 Thereafter, defense counsel cross-examined Revis on her DNA analysis of the

penile swab as follows:

Q. The 16 loci, those are -- those basically are marker points on
our DNA [strand]; is that fair?
A. Yes.
Q. They are, in fact, junk DNA, are they not, junk markers?
A. Yes. They don’t code for anything important like your hair
color or your race or anything like that. So they’re just basically junk
DNA.
Q. Now, how many -- in a human DNA strand, how many of
those little points are there possible?
A. Oh, it’s limitless.
Q. Millions?
A. Yeah, uh-huh.
Q. Okay. So when you do your analysis you pick just certain
spots that you’re testing to see where that person’s genetics hit, ping, -- and
it goes ping, ping, ping, ping, ping, correct?
A. Yes.
Q. Like that? Okay. Now, you have to have all 16 of those loci
in order to be able to tell if that’s an exact DNA match, correct?
A. For an exact match, yes.
Q. Did you have an exact match on -- with [Sierra] in the penile
swab?
A. She can’t be excluded. Since it’s a mixture we use the “can’t
be excluded” from the mixture term.
Q. Did you find all 16 loci of [her] DNA on Mr. Wright’s penis?
A. Yes, I did.
Q. Okay. Now, could some of those loci be from his DNA? It’s
a mixed sample. You’ve got sperm. You said that you separate out the
sperm cells from the epithelial cells, right?
A. This -- the sample that we’re talking about is the epithelial
cell fraction, so it’s non-sperm DNA and both Timothy Wright and [Sierra]
were in that mixture.
Q. Okay. Now, above when you say that Timothy [Wright] was
the contributor, but then down below was Sierra, you say that she cannot be
excluded.

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 A. That’s because with Timothy Wright I was able to pull out a
major DNA profile. And we use the term “match” only if we have a single
source profile which is what a major DNA profile is. In the case of a
mixture, which [Sierra] can’t be excluded as a contributor to the mixture,
we use that term “can’t be excluded” instead of “match.”
Q. All right. So can you tell me, let’s assume that it is [Sierra’s]
DNA on the penile swab then, can you tell me if it was put there -- was it
put there by vaginal fluid?
A. I can’t say what it came from.
Q. You can’t tell me if it was from her hand or from spit?
A. No. I can just say that it’s DNA.

¶14 On redirect examination, the prosecutor followed up on defense counsel’s use of

the word “assume” in reference to the presence of Sierra’s DNA:

Q. Okay. And then finally you were asked a question let’s
assume that it was [Sierra], her DNA that was on the Defendant’s penis.
Let’s not assume that. Let’s refer to what your testing results revealed.
Was it her DNA?
A. She can’t be excluded as a contributor.
Q. And that means?
A. That she can’t be excluded as a contributor to the mixture on
the penile swab.
Q. Because she matches at all those 16 points, right?
A. Yes, she does.

¶15 During closing arguments, the parties disputed the proper interpretation of Revis’s

testimony and report. Defense counsel argued that the language “cannot be excluded as a

contributor is not the same as [Sierra] is the other contributor.” The prosecutor objected

on the ground that this comment “[m]ischaracterizes the testimony,” but the court

overruled the objection. Then, in her rebuttal, the prosecutor argued that Revis had used

the term “cannot be excluded”—instead of “included”—only because this is the

particular terminology used at the Forensic Science Division for mixed samples. She

maintained that because Sierra’s reference DNA profile matched the minor DNA profile

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in the sample from Wright’s penis at all 16 loci, Sierra’s DNA must have been on his

penis.

¶16 The jury found Wright guilty, and the District Court sentenced him to the Montana

State Prison for 50 years. During its oral pronouncement of sentence, the court noted that

Wright had since admitted that he raped Sierra. Wright’s explanation was that “[s]he had

been picking on me earlier, calling me a fucking idiot and a retard. I screwed up. . . . I

was drunk and angry. My anger took over.” During the sentencing hearing, Wright

stated on the record that he was “sorry to [Sierra] for what I’ve done to her.”

DISCUSSION

The Due Process Claim

¶17 To place Wright’s argument in context, it is necessary at the outset to set out

certain fundamental principles underlying DNA analysis. 1

¶18 Virtually each one of the trillions of cells in the human body (except for red blood

cells) has a nucleus containing DNA (deoxyribonucleic acid). Each cell of a particular

individual has the same DNA configuration regardless of the cell’s source (i.e., whether

from hair, skin, blood, etc.). The significance of DNA for forensic purposes is that, with

some exceptions not at issue here, no two individuals have identical DNA configurations.

1
The ensuing explanation is derived from the discussions of DNA and DNA
analysis in People v. Soto, 981 P.2d 958, 963-67 (Cal. 1999), Young v. State, 879 A.2d
44, 48-52 (Md. 2005), State v. Moore, 268 Mont. 20, 31-32, 885 P.2d 457, 464-65
(1994), State v. Cauthron, 846 P.2d 502, 508-09, 512-13 (Wash. 1993), and United States
v. Davis, 602 F. Supp. 2d 658, 663-64, 673-74, 682-83 (D. Md. 2009). See also National
Research Council, The Evaluation of Forensic DNA Evidence (1996) (available at
http://www.nap.edu/catalog.php?record_id=5141), which is widely regarded as one of the
definitive publications on the use of DNA evidence in the field of forensics (see Davis,
602 F. Supp. 2d at 663 n. 4; see also e.g. Soto, 981 P.2d at 976).

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¶19 The DNA molecule consists of two strands, coiled in the form of a double helix,

which looks like a twisted ladder. The sides of the ladder are made up of alternating units

of phosphate and sugar. Running between the sugar-phosphate strands are billions of

rungs, which are made up of four types of organic bases: adenine, guanine, cytosine, and

thymine. Due to their chemical compositions, adenine will only bond with thymine, and

cytosine will only bond with guanine. The sequence in which these base pairs (rungs)

appear on the DNA ladder determines an individual’s genetic traits. A specific sequence

of base pairs that is responsible for a particular trait is called a gene. The position that a

gene occupies along the DNA thread is known as its locus.

¶20 Genetically, humans are more alike than dissimilar. Over 99 percent of a human

DNA molecule is the same from person to person, creating such shared features as arms

and legs. But the remaining regions of human DNA molecules—more specifically, the

sequences of base pairs in those regions—vary distinctly from one person to another,

which results in individual traits. It is these variable regions, called “polymorphisms,”

that make it possible to establish identity and differences between individuals. Of the

approximately three billion base pairs (ladder rungs) contained in one DNA molecule,

only three million (0.1 percent) are thought to be polymorphic.

¶21 If one could analyze the entire length of a DNA strand and compare it to another

complete DNA strand, an absolute identification could be provided. There is no practical

way, however, to sequence all three billion base pairs in a person’s DNA. Thus, forensic

scientists seek to identify individuals through variations in their base-pair sequences at

certain polymorphic DNA locations (loci). DNA patterns at polymorphic loci on the

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evidentiary DNA molecule are compared to DNA patterns at corresponding loci on a

reference DNA molecule. If the patterns do not match, then the contributor of the

reference DNA can be conclusively excluded as the contributor of the evidentiary DNA.

But where the patterns are sufficiently similar such that they could have originated from

the same source, further analysis is required.2

¶22 The reason for this is that it is possible for unrelated individuals to have identical

DNA patterns at a given locus. Hence, comparison of only one locus on the evidentiary

DNA and the reference DNA would yield an extremely low confidence level that the two

DNA samples came from the same person. The confidence level increases as the number

of compared loci increases. 3 Still, because DNA profiles are composed of only a handful

of loci out of the millions that constitute an individual’s entire genetic make-up, these

partial profiles are not assumed to be unique, especially among close relatives, and the

possibility of coincidental matches and their probabilities must be taken into account.

¶23 “The question properly addressed by the DNA analysis is therefore this: Given

that the suspect’s [or, in the present case, the victim’s] known sample has satisfied the

‘match criteria,’ what is the probability that a person chosen at random from the relevant

population would likewise have a DNA profile matching that of the evidentiary sample?”

2
See e.g. Davis, 602 F. Supp. 2d at 679 (“ ‘DNA typing is an exclusionary test.
We try to exclude individuals from profiles. When we cannot exclude, we must then
comment on what we do see in the profile.’ ” (quoting the affidavit of Meredith Kitey,
Technical Leader for the U.S. Army Criminal Investigation Laboratory in Fort Gilem,
Georgia)).
3
It has been said that “[t]he discriminating power of DNA evidence is directly
proportional to the number of loci where there are identical genotypes between two
samples.” State v. Bander, 208 P.3d 1242, ¶ 17 (Wash. App. Div. 1 2009).

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Soto, 981 P.2d at 965. This probability is usually expressed as a fraction—i.e., the

probability that one out of a stated number of persons in the population (e.g., 1 out of

100,000) would match the DNA profile of the evidentiary sample in question. Id. A

greater probability—i.e., a fraction with a smaller denominator (e.g., 1 out of 10,000)—

increases the probability that one or more other persons has a DNA profile matching the

evidentiary sample. Id.

¶24 Accordingly, after profiling a specific number of loci on a strand of DNA, the

analyst must obtain, from published tables, the frequencies of variations in genetic

material at each tested locus. The frequencies of all the tested loci are then multiplied

together (using the “product rule”) to obtain the frequency with which that particular

profile is seen in various population groups. Without reliable accompanying evidence as

to the likelihood that other individuals in a given population could be a match (or could

not be excluded as possible contributors), the jury has no way to evaluate the meaning of

the result. Commonwealth v. Mattei, 920 N.E.2d 845, 855-56 (Mass. 2010); but see

Young, 879 A.2d at 52-58 (concluding that if the probability of a random match is

sufficiently minuscule (e.g., one in a trillion), then accompanying contextual statistics are

not required and the expert may testify to “source attribution”—i.e., that it can be

concluded, to a reasonable scientific certainty, the evidentiary sample and the reference

sample came from the same person).

¶25 In the present case, Revis examined 16 loci on the DNA of the minor contributor

to the penile swab. She compared those to the same 16 loci on Sierra’s reference sample

and found that the DNA fragments at all 16 loci “matched.” This did not mean, however,

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that it conclusively was Sierra’s DNA on Wright’s penis. Rather, this simply meant that

the particular 16 loci matched. Sierra is not necessarily the only human being who has

the particular base-pair configurations observed by Revis at each of these 16 loci, though

there might be very few other unrelated people who have that same profile. Cf. Young,

879 A.2d at 51 (“[W]hen a DNA ‘match’ has been declared, a conclusive identification of

a crime suspect as the source of the unknown DNA sample is not being made. Rather,

the suspect simply has been ‘included’ as a possible source of the DNA material, because

the suspect’s DNA sample has matched the crime scene DNA sample at a certain number

of critical alleles. The issue still remains of just how many other people in the population

could share the same DNA profile with the suspect.” (citations omitted)).

¶26 Thus, Revis had to ascertain the likelihood that the match between Sierra’s DNA

and the minor contributor’s DNA was coincidental—i.e., the probability that a person

chosen at random from the population would likewise have a DNA profile matching the

minor contributor’s DNA profile at the same loci. 4 To that end, Revis’s DNA Report

states that she consulted “national statistics” (specifically, B. Budowle et al., Journal of

4
This is random match probability, which is not the same as source probability.
“[I]f a juror is told the probability a member of the general population would share the
same DNA is 1 in 10,000 (random match probability), and he takes that to mean there is
only a 1 in 10,000 chance that someone other than the defendant is the source of the DNA
found at the crime scene (source probability), then he has succumbed to the prosecutor’s
fallacy.” McDaniel v. Brown, ___ U.S. ___, 130 S. Ct. 665, 670 (2010) (per curiam); see
also State v. Jackson, 2009 MT 427, ¶ 37, 354 Mont. 63, 221 P.3d 1213. “[T]he fallacy
is in attempting to convert the expected frequency of occurrence into odds of occurrence.
The danger in the fallacy is that the probability of finding a random match can be much
higher than the probability of matching one individual, given the weight of the non-DNA
evidence.” People v. Cua, 119 Cal. Rptr. 3d 391, 404 (Cal. App. 1st Dist. 2011) (citation
omitted).

13
Forensic Sciences 44(6): 1277 (1999)) and determined that “the estimated number of

unrelated people in a random population expected to have a DNA profile that could be

included in this mixed DNA profile” is 1 in 467,700 Caucasians, 1 in 2,351,000

Southwestern Hispanics, and 1 in 3,504,000 African-Americans. These probabilities

represent two concepts: (1) the frequency with which the given DNA profile would be

expected to appear in a population of unrelated people—in other words, how rare the

DNA profile is (rarity statistic)—and (2) the probability of finding a match by randomly

selecting one profile from a population of unrelated people (random match probability).

Cua, 119 Cal. Rptr. 3d at 402. “It is relevant for the jury to know that most persons of at

least major portions of the general population could not have left the evidence samples.”

People v. Wilson, 136 P.3d 864, 869 (Cal. 2006).

¶27 The prosecutor, therefore, could have argued here that it was highly unlikely

Sierra would have matched the minor DNA profile without actually being the contributor

of that DNA. But it was not accurate to state that Revis’s findings conclusively

established that Sierra was the minor contributor. Likewise, the suggestion that Wright

and Sierra were the only two persons in Montana who could have contributed the DNA to

the penile sample was misleading. Probability of a random match does not equate with

certainty of a particular source.

¶28 Wright contends that these errors in the presentation of the DNA evidence, and the

prosecutor’s corresponding closing arguments, amounted to a due process violation.

Citing Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 1177 (1959), and Hayes v.

Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc), he argues that a criminal defendant

14
is denied due process of law when a prosecutor either knowingly presents false evidence

or fails to correct the record to reflect the true facts when unsolicited false evidence is

introduced at trial. We note that in Hayes, the Ninth Circuit stated that Napue does not

create a per se rule of reversal. 399 F.3d at 984. Rather, unless the error is structural,5

the defendant must show that the testimony or evidence was actually false, that the

prosecution knew or should have known that the testimony or evidence was actually

false, and that the false testimony or evidence was material. Id.

¶29 Wright has failed to make this showing. First, the DNA evidence presented by the

prosecutor was internally inconsistent (and perhaps somewhat confusing to the jury) on

certain points, but it is doubtful that it falls into the category of being outright “false.” As

the State points out, Revis clarified several times that her finding was that Sierra “cannot

be excluded” as a possible contributor to the mixed DNA profile. Second, while the

prosecutor may have taken some license during direct examination and in her closing

arguments, there is no evidence that she “knowingly” presented false testimony. In fact,

by her own admission, the prosecutor was “confused” about how Revis’s findings were to

be interpreted. Third, defense counsel clarified with Revis during cross-examination

what her precise findings were and pointed out that Sierra’s DNA could have gotten on

Wright’s penis for reasons other than rape. Likewise, defense counsel asked the jurors

during closing argument to look at Revis’s report and emphasized that “cannot be

excluded as a contributor is not the same as [Sierra] is the other contributor.” Thus, the

5
Wright does not contend, nor would we agree in any event, that the error here
was structural. See State v. Matt, 2008 MT 444, ¶¶ 31-32, 43, 347 Mont. 530, 199 P.3d
244.

15
jurors were not left with an entirely uncontested interpretation of the DNA evidence.

Finally, the prosecutor’s assertions that Sierra’s DNA actually was on Wright’s penis

would be more problematic if those assertions were based solely on Revis’s report. As it

is, however, the prosecutor relied on the non-DNA evidence (Sierra’s testimony, her 911

call, the corroborating testimony of other witnesses, and the physical evidence) as well.

That evidence was very strong, and it was fair to argue that Revis’s findings, in

conjunction with the non-DNA evidence, showed that it was Sierra’s DNA. There does

not appear, therefore, to be a reasonable likelihood that the allegedly false testimony

could have affected the jury’s judgment. Hayes, 399 F.3d at 984.

¶30 In sum, Wright has not demonstrated that his right to due process was violated.

The Ineffective Assistance Claim

¶31 A convicted defendant making a claim of ineffective assistance of counsel must

show (1) that counsel’s representation was deficient and (2) that the deficient

performance prejudiced the defense. State v. Norman, 2010 MT 253, ¶ 19, 358 Mont.

252, 244 P.3d 737. Before we may reach the merits of an ineffective assistance claim on

direct appeal, we must determine whether the claim is properly before us. State v.

Savage, 2011 MT 23, ¶ 23, 359 Mont. 207, 248 P.3d 308. In general, the test to

determine whether an ineffective assistance claim is properly brought on direct appeal is

whether the record contains the answer to “why” counsel took, or failed to take, action in

providing a defense. State v. White, 2001 MT 149, ¶ 20, 306 Mont. 58, 30 P.3d 340. If

the record explains “why,” then we will address the issue on direct appeal. Savage, ¶ 23.

But if the claim is based on matters outside the record, then we will dismiss it without

16
prejudice and allow the defendant to raise the claim in a petition for postconviction relief.

See e.g. State v. Gunderson, 2010 MT 166, ¶¶ 70-78, 357 Mont. 142, 237 P.3d 74.

¶32 Here, Wright asserts “that his trial attorney was ineffective in her challenge to the

DNA evidence presented at trial” because she “did not properly cross-examine the State’s

expert, or offer expert testimony on Wright’s behalf to counter that presented by the

State.” The record, however, does not reveal why trial counsel failed to undertake the

actions Wright alleges she should have. Consequently, the claim cannot be resolved on

direct appeal.

CONCLUSION

¶33 We reject Wright’s due process claim. We dismiss, without prejudice, his claim of

ineffective assistance of counsel, and he may pursue that claim through a timely petition

for postconviction relief.

¶34 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ JIM RICE

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