NO. 89-361
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE O MONTANA,
F
p l a i n t i f f and Respondent,
-vs-
DARREN KOLBERG,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t o f t h e S e v e n t h ~ u d i c i a lD i s t r i c t ,
I n and f o r t h e County o f Dawson,
The H o n o r a b l e Roy ~ o d e g h i e r o , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
Channing J . ~ a r t e l i u s ,H a r t e l i u s , F e r g u s o n & B a k e r ,
G r e a t F a l l s , Montana
For Respondent:
Hon. Marc ~ a c i c o t ,A t t o r n e y G e n e r a l , H e l e n a , Montana
~ a t r i c i a . S c h a e f f e r , A s s t . A t t y . G e n e r a l , Helena
J
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R i c h a r d A. S i m o n t o n , County A t t o r n e y ; Gary ~ a l k s t e i n ,
cy .Beputy, ~ l e n d i v e ,Montana
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S u b m i t t e d on ~ r i e f s : Dec. 1, 1989
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Justice Fred J. Weber delivered the Opinion of the Court.
Defendant, Darren Kolberg, was charged in the District Court
for the Seventh Judicial District, Dawson County, with the
misdemeanor offense of Driving Under the Influence of Alcohol,
Third Offense, in violation of S61-8-401, MCA. The jury found him
guilty as charged. Defendant appeals. We affirm.
The two issues for our consideration are:
1. Was defendant denied his Sixth Amendment Right to
effective assistance of counsel?
2. Whether prosecutorial misconduct occurred during the
trial?
On July 23, 1988, while on patrol, officers Moccasin and
Barsotti observed the vehicle driven by defendant weaving across
the center line a number of times as it was driven down the streets
of Glendive, Montana. Officer Moccasin testified that they
followed the vehicle for more than three blocks before they decided
to stop the defendant.
When Officer Moccasin approached defendant and asked for his
license, he smelled a strong odor of alcohol on defendant Is breath.
Officer Moccasin requested defendant to perform various sobriety
tests. First he asked defendant to say the alphabet. Defendant
only made it to the letter I1Gl1before he started having trouble,
and then stopped at I1Jl1. Officer Moccasin testified that
defendant's speech was slurred, his eyes were bloodshot, he acted
confused and he could not keep his balance very well. The officer
then asked defendant to do a one leg stand. Defendant told him
that he had broken his leg and it was not healed yet, so Officer
Moccasin requested he do a "walk and turnw instead. Officer
Moccasin testified defendant was unable to keep his balance and
failed that test.
At that point, Officer Moccasin called another officer who
was qualified to perform a "horizontal gaze nystagmus testnton
defendant. Officer Benson testified he performed the test and that
defendant failed. Officer Benson concluded that defendant was
driving while under the influence. Defendant was then placed under
arrest and read his Miranda rights.
An information was filed on August 2, charging defendant with
Driving Under the Influence of Alcohol (DUI), Third Offense, in
violation of 561-8-401, MCA. Defendant pled not guilty to the
charge. After a trial, the jury convicted him of the charged
offense. Defendant appeals.
I
Was defendant denied his Sixth Amendment Right to effective
assistance of counsel?
Defendant contends that he was ineffectively represented at
trial by his attorney, Mr. Halvorson. He claims Mr. Halvorson
failed to timely notify him of trial; failed to properly voir dire
the jury; improperly consented to informing the jury that he was
charged with DUI, third offense; improperly introduced a police
report into evidence; and failed to move for dismissal for the
State's failure to prove venue.
Defendant sent a letter to the District Court informing it
that he had not been notified of trial until 24 hours prior to the
trial. He maintained he had not had time to consult with his
attorney, nor contact two witnesses due to such lack of notice.
Mr. Halvorson sent a letter to defendant's last known address
informing him of the trial date. Defendant was having his mail
forwarded. The letter was never returned to Mr. Halvorson and
defendant testified he did not receive it. A lengthy in camera
discussion between counsel and the judge was held the morning of
the trial regarding defendant's letter to the judge alleging lack
of notice. The record reveals that the defense called two
witnesses and chose not to call a third. Although no motion was
made for a continuance, the District Court concluded that there
were not sufficient grounds to grant a continuance and that Mr.
Halvorson was sufficiently prepared to proceed with trial. We
agree. Defendant has failed to show any prejudice by lack of
notice. The record reveals that defense counsel carefully
considered the potential value of the third witness and decided it
best not to call him. In State v. Leavens (1986), 222 Mont. 473,
723 P.2d 236, we held that:
a decision on whether to call a witness is a matter of
trial tactics, which are normally not grounds for a
determination that counsel's performance was deficient.
We conclude Mr. Halvorson was prepared for trial, and that
defendant failed to show any prejudice as a result of his not
receiving notice of trial.
Defendant maintains that the asking of only one question by
his counsel during voir dire was inadequate. The record reveals
that there was extensive and thorough voir dire by the State. As
the State points out, jury voir dire is a very subjective process.
The purpose of voir dire in a criminal proceeding is to
determine the existence of bias and prejudice on the part
of prosepective jurors and to enable counsel to
intelligently exercise their pre-emptory challenges.
Any questioning conducted to establish rapport or to
educate the jury is extraneous to the legitimate objects
of voir dire. (Citations omitted.)
State v. Brodniak (1986), 221 Mont. 212, 718 P.2d 322. There is
no set number of questions counsel is required to ask of the
jurors. If counsel can intelligently exercise pre-emptory
challenges from the questions which have been asked, the purpose
of voir dire has been fulfilled. The record reveals that Mr.
Halvorson made his pre-emptory challenges. We conclude from the
record that the voir dire was adequate.
Defendant maintains it was prejudicial to allow defense
counsel to inform the jury that he was charged with his third
offense DUI, and to stipulate to his two prior DUI convictions.
The State points out that both counsel and the court erroneously
proceeded as though the two prior DUI convictions were elements of
this offense. Prior DUI convictions are actually elements to be
presented for sentencing to determine the maximum sentence that can
be imposed. See State v. Campbell (1980), 189 Mont. 107, 615 P.2d
190. They are not an element of the crime. 5561-8-401 and 61-8-
714(3), MCA. However, in view of the mistake on the part of both
counsel and the judge that the prior convictions were elements of
this offense, we conclude that the inadvertent disclosure to the
jury was not prejudicial. We conclude that the mention of the
prior DUItsto the jury does not constitute ineffective assistance
of counsel. In addition, we emphasize that the record contains
overwhelming evidence against the defendant and almost a total
absence of any evidence to the contrary.
We conclude that defendant's claims as to the introduction of
the police report and Mr. Halvorsont failure to move for dismissal
s
for the State's failure to prove venue are without merit. In State
v. Stewart (Mont. 1988), 767 P.2d 296, 45 St.Rep. 2350, we stated:
Ineffective assistance of counsel requires specific acts
or omissions which prejudice defendant s case and result
in the denial of a fair trial. . . First the defendant
must show that counsel's performance was deficient. This
requires showing that counsel made errors so serious that
counsel was not functioning as the counsel guaranteed the
defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the
defense. . . . To show prejudice, a defendant must show
that, but for counsel's unprofessional errors, there was
reasonable probability that the result of the proceeding
would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the
outcome of the trial. (Citations omitted.)
Defendant has failed to show such prejudice. We hold that
defendant was not denied his Sixth Amendment Right to effective
assistance of counsel.
Whether prosecutorial misconduct occurred during the trial?
Defendant maintains that the prosecutor intentionally violated
a court order on admissibility of an admission, and intentionally
disobeyed a court order on discovery. Defendant claims that after
the District Court ruled that statements of defendant at the scene
were inadmissible, the county attorney solicited the same
statements from Officer Benson when he responded that Mr. Kolberg
said he "had a few drinks1'. As pointed out by the State, the
court properly admonished the jury to disregard this statement.
An error in the admission of evidence may be cured if the jury is
admonished to disregard it. State v. Conrad, No. 89-198, slip op.
(Mont. 1989). Defendant's claim regarding failure to comply with
discovery is without merit. We hold that no prosecutorial
misconduct occurred during the trial.
Affirmed.
We Concur:
- Justices