April 17 2012
DA 11-0241
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 86
JOEL ST. GERMAIN,
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 08-185
Honorable Jeffrey H. Langton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Hooks & Wright, Helena, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Tammy K Plubell, Assistant
Attorney General, Helena, Montana
William Fulbright, Ravalli County Attorney, Hamilton, Montana
Submitted on Briefs: February 15, 2012
Decided: April 17, 2012
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Joel St. Germain (St. Germain) appeals the dismissal of his petition for postconviction
relief by the Twenty-First Judicial District Court, Ravalli County. We affirm.
BACKGROUND
¶2 On June 4, 2004, a jury unanimously found St. Germain guilty of four counts of incest
and four counts of sexual intercourse without consent for sexually abusing H.M., his
stepdaughter, repeatedly between the ages of 11 and 19. St. Germain first appealed his
conviction in 2004 and raised three issues: (1) his constitutional right to be present at all
critical stages of his trial had been violated, (2) the district court erred in ruling that defense
investigator Ron Maki could not testify about H.M.’s credibility, and (3) Kelli Sather, St.
Germain’s defense counsel at trial, provided ineffective assistance of counsel. State v. St.
Germain, 2007 MT 28, ¶¶ 2-5, 336 Mont. 17, 153 P.3d 591. This Court affirmed St.
Germain’s conviction on the first two issues and held that his ineffective assistance of
counsel claims were non-record based and would be better addressed at a postconviction
relief proceeding. St. Germain, ¶¶ 24, 31, 43.
¶3 St. Germain then filed a petition for postconviction relief with the District Court in
2008 setting forth nine claims of ineffective assistance of counsel against Sather, and one
claim against David Stenerson, his original appellate counsel. An evidentiary hearing was
held on April 2, 2009. On March 17, 2011, the District Court found that St. Germain
received effective assistance of counsel, and dismissed his petition for postconviction relief.
It is from this order that St. Germain appeals. The facts are set forth in detail in St. Germain,
2
and will be discussed here only as they pertain to his claims for relief. We will discuss the
facts of each claim separately below.
¶4 We restate the issues on appeal as follows:
¶5 Issue One: Did the District Court err when it denied St. Germain postconviction
relief based on his claims of ineffective assistance of trial counsel?
¶6 Issue Two: Did the District Court err when it denied St. Germain postconviction
relief based on his claim of ineffective assistance of appellate counsel?
STANDARD OF REVIEW
¶7 Claims of ineffective assistance of counsel are mixed questions of law and fact which
this Court reviews de novo. State v. Miner, 2012 MT 20, ¶ 10, 364 Mont. 1, 271 P.3d 56.
We review claims of ineffective assistance of appellate counsel like those of trial counsel.
Rogers v. State, 2011 MT 105, ¶ 37, 360 Mont. 334, 253 P.3d 889.
DISCUSSION
¶8 The Sixth and Fourteenth Amendments to the United States Constitution, and Article
II, Section 24 of the Montana Constitution, guarantee individuals the right to counsel in
criminal prosecutions. To determine if an individual has received ineffective assistance of
counsel, we use the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984). Miner, ¶ 11. Under this test, the defendant must demonstrate
(1) that counsel’s performance was deficient, and (2) that counsel’s deficient performance
prejudiced the defendant. Miner, ¶ 11. Claims of ineffective assistance of counsel must be
3
grounded on facts in the record and not on mere conclusory allegations. State v. Finley,
2002 MT 288, ¶ 9, 312 Mont. 493, 59 P.3d 1132.
¶9 In order to prevail on an ineffective assistance of counsel claim, the defendant must
satisfy both prongs of the Strickland test. Whitlow, 2008 MT 140, ¶ 11, 343 Mont. 90, 183
P.3d 861. We may address the prongs in any order, and, if the defendant makes an
insufficient showing regarding one prong, the other need not be addressed. Miner, ¶ 11.
¶10 In evaluating whether counsel’s performance was deficient under the first prong of
Strickland, we must determine whether counsel’s representation fell below an objective
standard of reasonableness considering prevailing professional norms and all the
circumstances. Whitlow, ¶ 14. We “ ‘indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.’ ” Whitlow, ¶ 15 (quoting
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). To overcome this presumption, the
defendant must “ ‘identify the acts or omissions of counsel that are alleged not to have been
the result of reasonable professional judgment.’ ” Whitlow, ¶ 16 (quoting Strickland, 466
U.S. at 690, 104 S. Ct. at 2066). We then “ ‘must determine whether, in light of all the
circumstances, the identified acts or omissions were outside the wide range of professionally
competent assistance.’ ” Whitlow, ¶ 16 (quoting Strickland, 466 U.S. at 690, 104 S. Ct. at
2066). In our analysis, we will make every effort “ ‘to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate
the conduct from the counsel’s perspective at the time.’ ” Whitlow, ¶ 15 (quoting Strickland,
466 U.S. at 689, 104 S. Ct. at 2065).
4
¶11 The focus of our analysis under the second prong of Strickland – whether the
defendant was prejudiced by counsel’s deficient performance – focuses on whether counsel’s
deficient performance renders the trial result unreliable or the proceedings fundamentally
unfair. Miner, ¶ 12. To establish prejudice, the defendant must show that, but for counsel’s
errors, a reasonable probability exists that the result of the proceeding would have been
different. Miner, ¶ 12. A reasonable probability is a probability sufficient to undermine
confidence in the outcome of the proceedings. Miner, ¶ 12.
¶12 Issue One: Did the District Court err when it denied St. Germain postconviction
relief based on his claims of ineffective assistance of trial counsel?
¶13 St. Germain raises four instances where he believes Sather provided ineffective
assistance of counsel at trial: (1) when Sather provided the defense investigator’s notes to
the State, (2) when Sather failed to retain a medical expert to rebut the State’s medical
expert, (3) when Sather failed to anticipate and object to the State’s introduction of “other
bad acts,” and (4) when Sather did not request a Mazurek hearing. We will separately
address each of St. Germain’s claims.
1. Investigator’s Notes
¶14 St. Germain first alleges that Sather was ineffective because she turned over the
defense investigator’s notes to the prosecution. Prior to trial, Sather procured funds from the
District Court to hire an investigator, Ron Maki, to gather information. Maki interviewed
numerous witnesses and prepared written notes from the witnesses’ statements. After
5
obtaining Maki’s notes, Sather provided them to the State anticipating that Maki would be
called as a witness.
¶15 At trial, the State used Maki’s notes during its questioning of witnesses Ron Hale,
William Drews, Dorothy Drews, Robert Gillespie and Cheryl Gillespie. The District Court,
applying Strickland, found Sather’s performance was deficient, but that St. Germain was not
prejudiced by Sather’s actions in light of the overwhelming evidence against him. In its
analysis, the District Court only considered the testimony of Hale.
¶16 On appeal, St. Germain argues he was prejudiced because the State was more
effective in using the notes than Sather, and the evaluation of prejudice cannot be limited to
the State’s questioning of Hale, but must include the State’s questioning of William,
Dorothy, Robert, and Cheryl.
¶17 We agree with the District Court that St. Germain was not prejudiced by Sather
providing Maki’s investigative notes to the State. Initially, St. Germain claimed he was
prejudiced when the State used Maki’s notes to call Hale as a prosecution witness. Hale’s
testimony, however, was not particularly damaging to St. Germain. Hale worked with St.
Germain and H.M. installing carpet for about eight months, and during that time, Hale
observed the pride St. Germain had in his children and St. Germain’s hope that they would
excel. In his testimony, Hale stated that St. Germain praised H.M. almost daily for her hard
work. In addition, Hale described St. Germain’s work van – where St. Germain was alleged
to have regularly sexually assaulted H.M. – as being full of carpeting tools and supplies, thus
6
making it unlikely there was any room for repeated sexual encounters between St. Germain
and H.M.
¶18 In contrast, Hale’s damaging testimony included statements that St. Germain had
“maybe a little bit” of a temper, was maybe a little controlling, and that Hale’s wife was
suspicious about St. Germain’s relationship with H.M. This limited testimony had a
negligible impact given that other witnesses testified in much greater detail about St.
Germain’s temper and their suspicions about St. Germain’s relationship with H.M. Overall,
Hale’s testimony was more favorable than not to St. Germain.
¶19 As with Hale, St. Germain argues that the State’s use of Maki’s investigative notes
resulted in prejudice when the State used them to question William and Dorothy Drews.
According to St. Germain, the Drews were important to counter H.M.’s claims that she was
sexually abused at home and at work in Butte. Yet, the Drews’ testimony reveals little.
William Drews testified on cross-examination that St. Germain’s work van was full in the
morning, and was emptier at night; that H.M. was punished by St. Germain; and that he
heard St. Germain arguing with Colleen, St. Germain’s wife at the time, about sex. Dorothy
Drews testified on cross-examination that she recalled H.M. working with St. Germain, that
she remembered St. Germain punishing H.M. by making her hold weights for long periods of
time, and that she did not remember Colleen and St. Germain arguing about sex. At best,
this testimony demonstrates St. Germain punished H.M. with weights and may have argued
with Colleen about sex. St. Germain can point to no specific prejudice resulting from this
testimony.
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¶20 Similarly, the State’s use of Maki’s investigative notes to question the Gillespies did
not prejudice St. Germain. St. Germain argues that the Gillespies were important to the
defense to show that H.M. frequently stood up for herself against St. Germain. Robert
testified that H.M. would regularly tell St. Germain to knock it off, and that H.M. and St.
Germain were the best of buds and always together. Cheryl corroborated Robert’s testimony
that H.M. told St. Germain to knock it off when he was harassing her. From the Gillespies’
testimony, it is apparent that they believed St. Germain was a great father, and that Colleen
was a cold parent who was self-centered. St. Germain complains that he was prejudiced, but
the State’s use of the notes only bolstered his defense.
¶21 On balance, the testimony of Hale, the Drews, and the Gillespies in its entirety, was
favorable to St. Germain. Accordingly, St. Germain has not demonstrated prejudice
sufficient to undermine confidence in the outcome of his trial as a result of Sather turning
over Maki’s notes to the State and we find no ineffectiveness on this issue.
2. Medical Expert
¶22 St. Germain next argues that Sather’s performance was deficient because she did not
consult an expert witness to rebut the testimony of the State’s expert. In August 2003, H.M.
was examined at First STEP, a child advocacy center associated with St. Patrick’s Hospital
in Missoula, Montana, for sexual abuse. The practitioner used a colposcope and the
colposcope examination was preserved on video. The program’s medical director, Dr. Karen
Mielke, reviewed the entire record of H.M.’s examination, including the video, and attached
an addendum to the record to clarify the significance of the findings.
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¶23 At trial, Dr. Mielke was called by the State as a medical expert in the area of child
sexual abuse. Dr. Mielke testified that H.M.’s physical examination revealed a scar
representing a complete tear of the hymen which had healed. This scarring could have
occurred any time prior to the two weeks before trial and could have been the result of
prepubescent penetration or forced penetration at any age. H.M.’s anal examination was
normal.
¶24 Dr. Mielke further explained that a prepubescent girl would recoil from the slightest
touch to her hymen because of its increased sensitivity, but at puberty, the hymen becomes
more elastic allowing for easier penetration. Eventually, a woman’s estrogen production
stops and the hymen tissue shrinks, but some hymen tissue always remains.
¶25 In Dr. Mielke’s opinion, H.M.’s hymenal scarring was consistent with H.M.’s
reported testimony of St. Germain’s attempts to penetrate her vaginally between the ages of
11 and 14, and H.M.’s description of complete penetration at age 14. Similarly, H.M.’s anal
examination, though normal, was not inconsistent with chronic anal sexual abuse.
¶26 Instead of calling an expert witness to contradict Dr. Mielke, Sather developed a
theme that Dr. Mielke, as an advocate for sexual abuse victims, was biased and that the scar
on H.M.’s hymen could have resulted from consensual intercourse that occurred at any time
up to two weeks before H.M.’s physical examination at First STEP. During her closing
argument, Sather emphasized this aspect of Dr. Mielke’s testimony.
¶27 Sather utilized this strategy because she consulted the nurse practitioner who
performed H.M.’s physical examination, and she decided she did not need an expert because
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the results of the examination were fairly insignificant. At the evidentiary hearing, Sather
maintained she would have found a defense expert witness had Dr. Mielke insisted that the
scar on H.M.’s hymen was a result of forced sexual intercourse and another doctor could say
that it resulted from consensual intercourse.
¶28 To challenge Sather’s decision, St. Germain retained Dr. Bennett, a board-certified
pathologist, to review Dr. Mielke’s trial testimony and findings regarding H.M. Dr. Bennett
disagreed with Dr. Mielke’s testimony in several regards. First, he disagreed with her
testimony that a young girl’s hymen is sensitive to the touch, but acknowledged that young
girls may withdraw from touch as a result of anxiety rather than pain. Second, Dr. Bennett
testified that St. Germain had venereal warts – which are infectious and contagious – but
H.M. did not. Dr. Bennett elaborated that one cannot, however, base an opinion on whether
H.M. was sexually abused on the presence or absence of venereal warts. Third, Dr. Bennett
stated that had St. Germain repeatedly penetrated H.M. anally, it would have resulted in the
vaginalization of the anus. Nonetheless, Dr. Bennett agreed with Dr. Mielke that most anal
examinations are normal even after chronic anal sexual abuse. Last, Dr. Bennett concluded
that after repeated vaginal penetration, the hymen goes away for all time. He opined that the
scarring on H.M.’s hymen could have resulted from an injury during prepubertal intercourse
or postpubertal intercourse, during forced intercourse or consensual sexual intercourse.
¶29 After the evidentiary hearing, the District Court concluded that St. Germain did not
meet his burden under Strickland because Sather’s performance was not deficient.
According to the District Court, Sather’s cross-examination of Dr. Mielke was successful in
10
highlighting the inconclusiveness of the physical evidence. The court further noted Dr.
Bennett’s testimony did not contradict Dr. Mielke’s trial testimony, but rather supported her
conclusion that the examination of H.M. was not dispositive of sexual abuse.
¶30 On appeal, St. Germain argues that Sather’s performance was deficient when she
failed to retain or consult a medical expert to contradict the testimony of Dr. Meilke. To
support this proposition, St. Germain relies on Gersten v. Senkowski, 426 F.3d 588 (2d Cir.
2005). In Gersten, the defendant was convicted for sexually assaulting his daughter. At
trial, the prosecution presented expert medical testimony supporting the alleged victim’s
testimony that she had been subject to vaginal and anal penetration. Gersten, 426 F.3d at
595. The prosecution offered no objective evidence to support an inference that any crime
took place at all, and presented no physical evidence linking Gersten to any crime that
occurred. Gersten, 426 F.3d at 613. Instead of consulting an expert witness, defense counsel
relied on cross-examination to establish that it was unclear when the damage to the hymen
and rectum occurred. Gersten, 426 F.3d at 595. Post trial, the defendant obtained an
affidavit from a qualified medical examiner who stated that the physical findings did not
corroborate the alleged victim’s account of years of repeated sexual abuse. Gersten, 426
F.3d at 607.
¶31 The Second Circuit on appeal noted that defense counsel’s failure to call a witness
was essentially a concession “that the physical evidence was indicative of sexual
penetration[.]” Gersten, 426 F.3d at 608. Continuing, the court determined that had counsel
conducted an investigation into possible medical experts she “would likely have discovered
11
that exceptionally qualified medical experts could be found who would testify that the
prosecution’s physical evidence was not indicative of sexual penetration and provided no
corroboration whatsoever of the alleged victim’s story.” Gersten, 426 F.3d at 608.
¶32 St. Germain’s reliance on Gersten is unpersuasive due to the fact that St. Germain’s
expert, Dr. Bennett, did not contradict Dr. Mielke’s testimony as the expert did in Gersten.
Drs. Mielke and Bennett in fact agreed upon a number of significant details such as the scar
on H.M.’s hymen resulted from penetration; there was no way to date the injury other than it
had to have occurred two weeks or more prior to H.M.’s physical examination; there was no
physical sign of anal penetration; and H.M.’s lack of genital warts neither proved nor
disproved sexual abuse. Given that Drs. Mielke and Bennett agreed on the inconclusive
results of the physical examination, St. Germain has not established that had Sather sought
an “exceptionally qualified medical expert,” she would have been able to find one. Gersten,
426 F.3d at 608.1
¶33 In contrast to Gersten, the United States Supreme Court found that it was reasonable
for the California Supreme Court to deny a defendant’s claim of ineffective assistance of
counsel when defense counsel failed to consult an expert witness. Harrington v. Richter, __
U.S. __, 131 S. Ct. 770 (2011). In Harrington, during Richter’s murder trial, the prosecution
presented testimony from a blood pattern expert and a serologist. On cross-examination,
defense counsel elicited concessions from the prosecution’s experts undermining their
1
Sather’s defense was also much more comprehensive than that in Gersten, where the prosecutor only called five witnesses, and
the defense presented no witnesses. Sather countered the State’s 18 witnesses with 12 of her own.
12
opinions. Defense counsel then called seven witnesses, including Richter, but did not call an
expert witness. Harrington, 131 S. Ct. at 781-82.
¶34 After being convicted, Richter petitioned the California Supreme Court for a writ of
habeas corpus and filed affidavits from three forensics experts – a serologist, a pathologist
and an expert in blood stain analysis – all bolstering Richter’s defense theory. The
California Supreme Court summarily denied him relief. Richter then sought habeas relief
through the federal courts, with his claim eventually being denied by the Supreme Court.
Harrington, 131 S. Ct. at 783.
¶35 At issue before the Supreme Court was whether the California Supreme Court’s
summary denial of Richter’s Strickland claims was reasonable. Harrington, 131 S. Ct. at
783. The Supreme Court determined that it was reasonable to conclude defense counsel’s
performance was not deficient because an attorney could reasonably decide to forego an
inquiry into the blood evidence. Harrington, 131 S. Ct. at 788. There were any number of
experts Richter’s defense counsel could have called, but the Court noted, an attorney can
avoid activities that appear distractive from more important duties, Harrington, 131 S. Ct. at
789 (citing Bobby v. Van Hook, __ U.S. __, 130 S. Ct. 13, 19 (2009)), and even if expert
testimony is helpful, a competent attorney reasonably may elect not to use it, Harrington,
131 S. Ct. at 779.
¶36 The Supreme Court additionally concluded it was reasonable to find that Richter was
not prejudiced by his counsel’s strategy. Harrington, 131 S. Ct. at 792. Richter’s expert
testimony was inconclusive and did not undermine the State’s experts to a greater extent than
13
his counsel did through cross-examination, when defense counsel extracted a concession
from the State’s expert that was similar to evidence presented by Richter’s serologist.
Harrington, 131 S. Ct. at 791. In light of defense counsel’s skillful cross-examination and
the sufficiency of the circumstantial evidence, the Supreme Court determined it was
reasonable to conclude that Richter was not prejudiced by his counsel’s failure to consult an
expert. Harrington, 131 S. Ct. at 792.
¶37 We agree with the United States Supreme Court that “Strickland does not enact
Newton’s third law for the presentation of evidence, requiring for every prosecution expert
an equal and opposite expert from the defense.” Harrington, 131 S. Ct. at 791. Defense
counsel’s failure to consult an expert witness is not per se unreasonable. An attorney may
forego the use of an expert if the investigation would be fruitless or might be harmful to the
defense. Harrington, 131 S. Ct. at 789-90 (citing Strickland, 466 at 691, 104 S. Ct. at 2066).
In some cases, however, counsel may be ineffective for failing to consult an expert.
Harrington, 131 S. Ct. at 789.
¶38 In the present case, St. Germain has not established that Sather’s performance was
deficient or that he suffered any prejudice as a result of Sather’s performance. Sather’s
initial strategy was to exclude Dr. Mielke from testifying, and if that failed, her fallback plan
was to conduct a thorough cross-examination. Sather based her decision on her consultation
with the nurse practitioner that examined H.M. and Dr. Mielke’s report indicating a lack of
physical evidence. Sather furthermore conducted a skillful cross-examination of Dr. Mielke.
At trial, Sather elicited a concession from Dr. Mielke – supported by Dr. Bennett’s findings –
14
that the physical evidence was consistent with both sexual abuse and consensual sexual
intercourse. Sather highlighted this aspect of Dr. Mielke’s testimony during her closing
argument.
¶39 Considering Sather’s performance and Dr. Bennett’s testimony, Sather’s decision not
to consult an expert was reasonable in light of all of the circumstances. St. Germain
moreover has not shown that any further investigation would have likely produced a
different result at trial. Accordingly, Sather’s assistance was not ineffective on this issue.
3. Other Bad Acts
¶40 St. Germain next argues that Sather provided ineffective assistance of counsel when
she failed to anticipate and object to the State’s introduction of “other bad acts,” and when
she introduced other bad acts evidence on her own. In his Petition, St. Germain originally
argued that Sather provided ineffective assistance of counsel because she failed to object to
evidence of St. Germain’s (1) physical contact with H.M. outside the jurisdiction where he
was charged; (2) abuse of his son, D.S.G.; (3) intimidation of members of the community;
(4) providing marijuana to and using marijuana with H.M. and L.R.;2 and (5) improper
sexual contact with L.R. Notably, St. Germain is not appealing the District Court’s finding
that Sather’s failure to object to evidence of St. Germain’s physical contact with H.M.
outside the jurisdiction where he was charged did not amount to ineffective assistance of
counsel.
2
L.R. and H.M. were friends, and when L.R.’s parents moved away from Darby before L.R.’s senior year of high school, St. Germain
allowed L.R. to live with him, H.M. and D.S.G. for her senior year. L.R. and H.M. ran away from St. Germain’s house the week
before L.R.’s graduation from Darby High School.
15
¶41 As to testimony regarding St. Germain’s abuse of D.S.G., D.S.G. testified that his
father disciplined him on occasion by hitting him with a wooden paddle, and when his
mother was absent, karate punching him and kicking him in the stomach, sometimes severely
enough to knock the wind out of him. On cross-examination, D.S.G. testified that St.
Germain had used a whip on him, H.M. and L.R. This testimony surprised Sather because
St. Germain failed to fully inform her of his actions. However, Sather was able to elicit
testimony from D.S.G. that he did not remember how big the whip was and that he had never
told anyone about being whipped until that day.
¶42 Concerning intimidation of community members, Dan Johnston and Jason Yorton
testified about having been intimidated by St. Germain. Johnston, the Darby High School
principal, testified that St. Germain came to school to see him because the previous day H.M.
and D.S.G. arrived home ten minutes late after the bus driver had stopped the bus to address
discipline problems. During his visit with Johnston, St. Germain angrily demanded the bus
problem be solved because he needed H.M. home immediately after school for work.
Johnston further testified that St. Germain informed him he had a black belt in karate and
indicated he was holding himself back, but was capable of getting angrier. Johnston felt
threatened by St. Germain to the point of asking his secretary to keep an eye on things if St.
Germain returned.
¶43 Yorton, who similarly felt intimidated by St. Germain, originally met St. Germain
while Yorton was an employee of Abbey Carpet in Hamilton. St. Germain and H.M.
regularly came into the store to pick up product to install. During their encounters, H.M. and
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Yorton became attracted to each other, but because Yorton felt intimidated by St. Germain –
who always had the look of a jealous boyfriend – he never asked H.M. out for a date. St.
Germain, at times, spontaneously demonstrated his karate to Yorton to make sure Yorton
was aware St. Germain could subdue him. On one occasion, St. Germain approached Yorton
from behind at his place of work and put him in a choke hold; Yorton felt scared and
threatened. Yorton and H.M. began meeting secretly, but their visits never lasted long
because Yorton felt he was risking death if St. Germain ever found out.
¶44 K.F., a friend of L.R. and H.M., also testified about St. Germain’s intimidating nature.
He recalled that L.R. had bruises on her arm, and that L.R.’s demeanor changed when she
moved in with St. Germain. Before L.R. lived with St. Germain, K.F. remembered her being
happy, but upon moving in with St. Germain, K.F. described L.R. as being tired, never being
happy, and not liking to go home.
¶45 Regarding marijuana usage, on direct examination, L.R. testified that on the night she
and H.M. planned to run away, St. Germain asked them to smoke marijuana with him. At
that point, Sather objected to evidence of marijuana use on the basis of Rule 404(b), M. R.
Evid., but the District Court overruled her objection. L.R. then testified that St. Germain
provided marijuana and smoked it with both her and H.M. After L.R. and H.M. smoked
marijuana with St. Germain, he would not let them go out of the house or drive. Sather also
elicited testimony from Yorton that he would go to St. Germain’s house to pick up marijuana
from St. Germain.
17
¶46 In regards to St. Germain’s inappropriate touching of L.R., Sather initially asked if
L.R. ever had feelings for St. Germain as more than a friend. L.R. responded that she did for
a while. Sather then asked if St. Germain had ever touched her inappropriately, and L.R.
responded that he had once touched her breasts. L.R. had not disclosed this information to
investigators despite numerous opportunities to do so, and St. Germain had not told Sather of
this incident.
¶47 The District Court determined that Sather’s performance was not deficient in relation
to this evidence because the totality of the evidence was admissible under the transaction rule
(§ 26-1-103, MCA).
¶48 On appeal, St. Germain argues that recent changes in our interpretation of Rule
404(b), M. R. Evid., and the transaction rule require us to find Sather’s performance was
deficient. St. Germain cites to our language in State v. Guill, 2010 MT 69, ¶ 26, 355 Mont.
490, 228 P.3d 1152, where we stated that we have “endeavored to cabin the application of
the transaction rule to prevent it from overthrowing the Rule 404(b) exclusion of other-bad-
acts evidence.” St. Germain also points us to State v. Dist. Ct. of the Eighteenth Jud. Dist.,
2010 MT 263, ¶ 3, 358 Mont. 325, 246 P.3d 415, where we overruled State v. Just, 184
Mont. 262, 602 P.2d 957 (1979), and State v. Matt, 249 Mont. 136, 142, 814 P.2d 52, 56
(1991), and restated the procedural requirements for the introduction of other bad acts. Guill
and Dist. Ct. of the Eighteenth Jud. Dist. were not the law at the time of St. Germain’s trial,
and we will not retroactively apply them to evaluate Sather’s performance. We, therefore,
18
will not find Sather’s performance deficient pursuant to either Guill or Dist. Ct. of the
Eighteenth Jud. Dist.
¶49 Notwithstanding St. Germain’s alleged errors, we find that Sather provided effective
assistance of counsel. In regards to testimony from Johnston and Yorton, Sather attempted
to exclude their testimony through a motion in limine, which the District Court denied.
Sather similarly tried to exclude evidence of marijuana use by objecting at the first
opportunity, but her objection was overruled by the court. Sather also attempted to impeach
K.F.’s testimony by calling two additional witnesses, but again, the Court denied her request.
¶50 In addition, any deficiency in Sather’s performance related to her questioning of
D.S.G. and L.R. or related to D.S.G.’s abuse is a result of St. Germain failing to fully inform
her of his actions. St. Germain cannot fail to warn Sather of his behavior and then later
complain that her questions inadvertently led witnesses to discuss such behavior. “[W]hen a
defendant has given counsel reason to believe that pursuing certain investigations would be
fruitless or even harmful, counsel’s failure to pursue those investigations may not later be
challenged as unreasonable.” Strickland, 466 U.S. at 691, 104 S. Ct. at 2066.
¶51 Accordingly, we agree with the District Court that Sather provided effective
assistance by acting reasonably in regards to evidence of St. Germain’s abuse of D.S.G., his
intimidation of community members, his distribution and use of marijuana, and his
inappropriate sexual contact with L.R.
4. Mazurek Hearing
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¶52 St. Germain next argues Sather provided ineffective assistance when she failed to
request a hearing, pursuant to State ex rel. Mazurek v. Dist. Ct. of the Mont. Fourth Jud.
Dist., 277 Mont. 349, 922 P.2d 474 (1996), to attempt to introduce evidence of an alleged
false allegation of sexual abuse that H.M. made against her biological father. H.M.’s alleged
prior false allegation stems from a letter authored by Sarah Baxter, a clinical psychologist, in
1993. The purpose of Baxter’s letter was to make recommendations to help H.M. adjust to
living between two families after her biological father and mother separated. The letter
provides in pertinent part:
[H.M.] had also reported to a nurse at Western Montana Clinic that her
[biological] father might have molested her in her sleep. After interviewing
[H.M.] very carefully on this subject, I do not believe that she was sexually
abused by her [biological] father. I do believe that [H.M.] has some other
concerns about her relationship with her [biological] father and she has been
able to begin address these concerns by bringing up her worry about sexual
abuse.
(Emphasis added.)
¶53 During the final pretrial conference the State made a motion to exclude testimony
regarding whether H.M. had previously accused her biological father of molesting her.
Sather, after having researched the admissibility of prior false allegations, agreed that the
prior allegation was not admissible at trial and did not request a pretrial hearing to determine
its admissibility. Sather was also concerned that the jury could conclude St. Germain
instigated the whole notion of sexual abuse between H.M. and her biological father.
¶54 Montana’s Rape Shield law, § 45-5-511, MCA, mandates the exclusion of evidence of
a complainant’s sexual conduct, subject to narrowly drawn exceptions which must satisfy a
20
preliminary determination of admissibility. “This statutory prohibition reflects a compelling
interest in favor of ‘preserv[ing] the integrity of the trial and . . . prevent[ing] it from
becoming a trial of the victim.’ ” State v. Anderson, 211 Mont. 272, 283, 686 P.2d 193, 199
(1984) (quoting State v. Higley, 190 Mont. 412, 424, 621 P.2d 1043, 1050-51 (1980)). The
bar imposed by this statute, however, is not absolute when it concerns the complainant’s
prior false allegations. Anderson, 211 Mont. at 284, 686 P.2d at 200.
¶55 A defendant cannot overcome the protections afforded a victim under the rape shield
statute with speculative or unsupported allegations. See State v. Ahto, 1998 MT 200, ¶ 17,
290 Mont. 338, 965 P.2d 240. This Court established the requirements for introducing prior
false allegations in Mazurek, 277 Mont. at 358, 922 P.2d at 480 (citing Miller v. State, 779
P.2d 87, 90 (Nev. 1989)), wherein this Court held that the defendant must establish at a
pretrial hearing: (1) an accusation was in fact made; (2) the accusation was in fact false; and
(3) the evidence is more probative than prejudicial.
¶56 The District Court concluded that Sather’s performance was not deficient when she
failed to request a Mazurek hearing. In its order, the District Court determined that Dr.
Baxter’s letter was insufficient to meet the first element of Mazurek, and furthermore, St.
Germain’s role as the party who initially reported this allegation gives rise to concern that
this allegation was part of St. Germain’s ultimate plan to isolate, manipulate, and control
H.M. for his sexual gratification.
¶57 On appeal, St. Germain argues that Dr. Baxter’s letter is admissible as a prior false
allegation against H.M.’s biological father. A close reading of Dr. Baxter’s letter, however,
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demonstrates that H.M. reported her father “might have molested her in her sleep,” not that
he in fact did molest her. St. Germain has failed to provide independent competent evidence
showing that H.M. actually made a sexual allegation against her father. Accordingly, any
attempt by Sather to present evidence of the false allegation to the jury would have been
futile because Sather could not have established the first element required under Mazurek.
Therefore, Sather’s decision not to request a Mazurek hearing was reasonable and St.
Germain received effective assistance of counsel on this issue.
¶58 Issue Two: Did the District Court err when it denied St. Germain postconviction
relief based on his claim of ineffective assistance of appellate counsel?
¶59 St. Germain alleges that his initial appellate counsel, Stenerson, denied him effective
representation on appeal because he did not challenge the District Court’s failure to remove
juror Charlton for cause. During voir dire, the following exchange took place between juror
Charlton and the prosecutor, William Fulbright:
Mr. Fulbright: You say [sexual abuse] upsets you. That’s – I guess the
subject matter you find upsetting. Is that –
Prospective Juror Charlton: The individuals that do it upsets [sic] me.
Mr. Fulbright: Okay. What you’re going to see as this case progresses is the
state has accused, I guess is the right word, by charging, the defendant with
those crimes. Okay?
Prospective Juror Charlton: I understand that.
Mr. Fulbright: At the same time – we’ll talk more about this – the defendant
has a right to a fair trial. Right?
Prospective Juror Charlton: Right.
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Mr. Fulbright: I understand you find that upsetting. Would that influence your
ability to look at the evidence and weigh the evidence and be able to discuss it
in the jury room and come to some conclusion in your mind, absent – you
know, before you get to the part about it upsets you, but come to some
conclusion about whether the defendant did or did not commit the crimes?
Prospective Juror Charlton: I think I would try to be objective, but if they’re
guilty – It is something I can’t stand.
. . .
Mr. Fulbright: . . . Somebody is accused, and we haven’t decided whether
they’re guilty or not. The jury hasn’t. Do you think you could set those
feelings aside and remain objective about, this witness says this, this witness
says that, and this witness says that, and not let those feelings color your
working on whether there is or is not guilt?
Prospective Juror Charlton: I think I could.
Mr. Fulbright: You would be comfortable sitting as a juror in this type of case
and making that decision?
Prospective Juror Charlton: I believe I could.
¶60 During Sather’s questioning, the following exchange occurred with juror Charlton:
Ms. Sather: . . . do you feel like you could honestly sit here throughout that
trial and remain impartial and go into that jury room and make a decision
based only on the evidence you heard and not any feelings you have?
Prospective Juror Charlton: I think I could. I try to be fair, but I do have
strong beliefs.
. . .
Ms. Sather: Okay, So does it bother you to the extent that – Would you be
sitting there thinking other thoughts that didn’t really relate to the evidence
during trial?
23
Prospective Juror Charlton: I don’t think I would be thinking of the thoughts.
I think I would be thinking what’s going on in the trial but –
. . .
Ms. Sather: . . . So what we need to determine is if your feelings, if any
sympathy you may have for any witnesses that may testify, could sway you
based on those feelings. Does that make sense?
Prospective Juror Charlton: It makes sense. I can imagine if a young lady was
violated I would probably listen to her quite a bit, lean towards her.
. . .
Ms. Sather: So you think you might give the alleged victim in this case more
weight? You would really listen to her more than other witnesses?
Prospective Juror Charlton: I would try to be fair, but I definitely would listen
to her.
¶61 At that point, Sather challenged juror Charlton for cause and the following dialogue
occurred between the District Court and juror Charlton:
The Court: Sir, let me ask you a few questions. You do acknowledge that the
defendant at this point is just accused of certain offenses?
Prospective Juror Charlton: Right.
The Court: And he is presumed innocent?
Prospective Juror Charlton: Yes, Sir.
The Court: You’re prepared to give him the benefit of the presumption of the
innocence?
Prospective Juror Charlton: Yes, Sir.
The Court: You’re prepared to make the state prove his guilt beyond a
reasonable doubt?
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Prospective Juror Charlton: Yes.
The Court: And do you feel at this point as though you would be unfairly bias
[sic] against anyone charged with that offense? In other words, do you think it
would be difficult for you to give him a fair trial because he’s charged with
this particular offense?
Prospective Juror Charlton: I would try to be fair, Your Honor, but –
The Court: Any guarantees?
Prospective Juror Charlton: No guarantees.
The Court: Pardon?
Prospective Juror Charlton: I would try to be fair.
The Court: Can you guarantee that you will be fair?
Prospective Juror Charlton: Will I guarantee I’ll be fair? I’ll try to be fair.
The Court: Well, do you understand if you’re in this seat you need a
guarantee? And that’s – I need to know that you’ll be absolutely fair regardless
of the nature of the charge, listen to all the evidence and make a decision not
based on what your preexisting feelings are but based on the evidence.
Prospective Juror Charlton: I think I would be fair based on the evidence.
The Court: So you would have no hesitation if you felt that the state failed to
prove its case beyond a reasonable doubt to come back with a not guilty
verdict?
Prospective Juror Charlton: Exactly.
¶62 Based upon this questioning, the District Court denied Sather’s challenge for cause.
¶63 During the initial appeal of this case in 2004, Stenerson did not appeal the District
Court’s denial of Sather’s challenge for cause. Prior to the postconviction relief hearing, St.
Germain’s present counsel deposed Stenerson, without the State being represented, wherein
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Stenerson admitted he was not familiar with the law at the time of the original appeal, but
that he was now familiar with the law and he should have raised the issue originally. The
District Court ruled that Stenerson’s failure to appeal its decision not to dismiss juror
Charlton for cause did not fall below an objective standard of reasonableness.
¶64 Despite Stenerson’s subjective belief that he should have appealed the District Court’s
failure to dismiss juror Charlton for cause, we find that Stenerson’s appellate performance,
even if deficient, was not prejudicial to St. Germain. Had Stenerson raised the issue on
appeal, we would have reviewed the district court’s decision for an abuse of discretion. State
v. Rogers, 2007 MT 227, ¶ 18, 339 Mont. 132, 168 P.3d 669.
¶65 In determining whether a juror should be excused for cause, the court must consider
both the statutory language and the totality of the circumstances. State v. Normandy, 2008
MT 437, ¶ 22, 347 Mont. 505, 198 P.3d 834 (citing State v. Robinson, 2008 MT 34, ¶ 8, 341
Mont. 300, 177 P.3d 488). If the totality of a prospective juror’s responses raises serious
questions about his or her ability to be fair and impartial, the juror should be removed.
Normandy, ¶ 22. If, however, the prospective juror merely expresses concern about
impartiality but believes he or she can fairly weigh the evidence, the court is not required to
remove the juror. Normandy, ¶ 22.
¶66 St. Germain argues that juror Charlton should have been dismissed for cause
pursuant to § 46-16-115(2)(j), MCA, which provides in pertinent part:
A challenge for cause may be taken for all or any of the following reasons or
for any other reason that the court determines:
26
. . .
(j) having a state of mind in reference to the case or to either of the parties that
would prevent the juror from acting with entire impartiality and without
prejudice to the substantial rights of either party.
¶67 This Court’s decisions in Normandy and Rogers provide guidance in our
interpretation of § 46-16-115(2)(j), MCA. In Normandy, a prospective juror expressed his
predisposition against domestic violence because it had affected his wife in her first
marriage, but he did not voice a predisposition regarding the guilt or innocence of the
defendant. Normandy, ¶ 23. Similarly, in Rogers, the prospective juror admitted he would
likely start out wanting to think the defendant probably committed the sexual assault crime
he was charged with. Rogers, ¶ 9. In both cases, the prospective jurors also stated they could
sit on the jury, despite their predispositions, and fairly and impartially render a verdict.
Normandy, ¶ 23; Rogers, ¶¶ 9, 25. This Court, in both cases, held that the district court did
not abuse its discretion in denying the defendants’ challenges for cause. Normandy, ¶ 25;
Rogers, ¶ 26.
¶68 Juror Charlton’s initial responses, like the jurors’ responses in Normandy and Rogers,
indicated he had a predisposition against people who had been convicted of a sexual offense.
However, his “feelings regarding sexual assault are common among parents,” Rogers, ¶ 25,
and only relate to those individuals found guilty of a sexual offense, not those merely
charged with a sexual crime, see Normandy, ¶ 23. Juror Charlton also stated he thought he
could be objective, fair and impartial. During Sather’s questioning, juror Charlton agreed
that he might “lean towards” a young lady who was violated, but that he would try to be fair.
27
Juror Charlton further agreed to honor the presumption of innocence, hold the State to its
burden of proof, and base his decision on the facts that evolved at trial. When questioned by
the court, he admitted he would have no hesitation acquitting the defendant if the State failed
to prove its case beyond a reasonable doubt.
¶69 Juror Charlton’s comments contrast sharply with those of prospective juror Allen,
who was questioned subsequently to juror Charlton. In response to Mr. Fulbright explaining
the case, prospective juror Allen stated that she had the “most sickening feeling when
[Fulbright] mentioned the case.” Mr. Fulbright continued asking prospective juror Allen
questions, and the following conversation took place:
Mr. Fulbright: Let me ask the same direction I was asking over here. Is that
feeling enough that it would interfere with your ability to look at this case and
like any other case – no, that’s not the right way to say it – to look at this case
and remain objective and try to balance the facts?
Prospective Juror Allen: I just know how I feel. I don’t know how to explain
it, but it’s sickening.
Mr. Fulbright: If you were in either parties’ shoes, the state’s or the
defendant’s shoes, would you be comfortable with you serving as a juror?
Prospective Juror Allen: No. I just can’t.
¶70 After this exchange, the court granted the State’s motion to remove prospective juror
Allen for cause. Unlike juror Charlton, prospective juror Allen demonstrated a clear bias,
implicitly admitted she would be unable to remain objective, and would not feel comfortable
if she were in the shoes of either party.
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¶71 St. Germain also argues that it was improper for the District Court to rehabilitate juror
Charlton. In State v. Freshment, 2002 MT 61, ¶ 18, 309 Mont. 154, 43 P.3d 968, this Court
noted that “[c]oaxed recantations in which jurors state they will merely follow the law,
whether prompted by the trial court, the prosecution, or the defense, do not cure or erase a
clearly stated bias which demonstrates actual prejudice against the substantial rights of the
party.”
¶72 Here, juror Charlton had no clear bias demonstrating actual prejudice against the
substantial rights of St. Germain. Juror Charlton’s bias was only towards those found guilty
of a sexual offense, of which St. Germain had yet to be convicted. In addition, the District
Court did not coax juror Charlton into recanting his bias, but rather, inquired into his ability
to rely on the facts placed before him, and hold the State to its burden of proof. In response,
juror Charlton stated he would, thereby mitigating any bias.
¶73 We accordingly conclude that had Stenerson appealed the District Court’s decision
not to dismiss juror Charlton for cause, he would have been unsuccessful because the District
Court did not abuse its discretion. St. Germain therefore has not demonstrated prejudice
under the second prong of Strickland and he received effective assistance of counsel on this
issue.
CONCLUSION
¶74 For the reasons stated above, we affirm the District Court’s dismissal of St. Germain’s
petition for postconviction relief.
/S/ MICHAEL E WHEAT
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We Concur:
/S/ MIKE McGRATH
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ BETH BAKER
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