No. 83-239
IN THE SUPREME COURT OF THE STATE OF MONTANA
1983
STATE OF MOIJTANA,
Plaintiff and Respondent,
-vs-
GARRY HENRICKS,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Mark P. Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Garry Henricks, pro se, Billings, Montana
For Respondent:
Eon. Mike Greely, Attorney General, Helena, Montana
Robert McCarthy, County Attorney, Butte, Montana
Submitted on Briefs: August 18, 1983
Decided: November 10, 1983
--
Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Petitioner Garry Henricks appeals an order of the
District Court of the Second Judicial District of the State
of Montana, County of Silver BOW, dismissing plaintiff's
petition for post-conviction relief. We affirm.
During the late evening hours of September 12, 1981,
Richard Graham was struck and killed while crossing a street
in Butte, Montana. Graham was struck by the Henricks automo-
bile in a hit-and-run accident. Both Garry and his wife
Lorraine were in the automobile at the time of the accident,
and both had been drinking heavily throughout the afternoon
and evening.
Following the hit-and-run, Garry and Lorraine decided
to abandon the car and report it stolen because they had both
been drinking heavily and did not have insurance.
The Henricks car was located by the police on September
13, 1981. On October 10, 1981, Lorraine gave a statement in
which she claimed that she was the driver of the vehicle
which struck and killed Graham. Upon completion of her
statement, she was arrested and charged with the crime of
negligent homicide. On October 16, 1981, Lorraine gave a
second statement in which she recanted her previous confes-
sion and in which she claimed that her husband Garry was
actually driving at the time of the accident. The allega-
tions contained in Lorraine Is second statement were investi-
gated and on November 5, 1981, she was released from jail.
On the same day, November 5, 1981, Garry was arrested and
charged with the crime of negligent homicide.
Henricks made an initial appearance in justice court on
November 5, 1981, at which time he was advised of his rights,
including his right to be represented by counsel. Henricks's
initial appearance continued on November 6, 1.981, during
which time Brad Belke, public defender for Butte-Silver Bow
County, sat in on the proceedings. A preliminary examination
was scheduled for November 10, 1981, but instead the District
Court granted the State Leave to file an information pursuant
to section 46-11-201, MCA.
Henricks was arraigned in District Court on November
23, 1981, at which time he was represented by his retained
counsel, Gregory R. Todd. A plea of not guilty was then
entered and trial was set for January 18, 1982. Henricks was
represented by counsel at all stages in the proceedings
except his initial appearance.
On Januarv 4, 1982, Henricks signed and filed a consent
to substitution of counsel, replacing Gregory R. Todd with
attorney John G. Winston. Winston had been serving as county
a.ttorney for Silver Bow County on a part-time basis until his
termination on November 13, 1981. At the time of the hit-
and-run, Winston was assigned only juvenile and police court
cases for the county attorney's office.
On January 4, 1982, Winston filed a motion to continue
and waiver of right to a speedy trial. Henricks signed the
motion, which included the following paragraphs:
"That defendant has been notified by his
attorney, that John G. Winston was the
County Attorney for Butte-Silver Bow for
six (6) years and was working on a part
time basis handling Juvenile and Police
Court cases, for the County Attorney's
office when this accident occurred.
"V.
"That the defendant does not view the
facts stated in Paragraph IV (above), as
being detrimental to his case because he
has been informed that John G. Winston
was not being assigned to felony cases
and was doing only Juvenile and Nisde-
meanor cases as stated above."
Based upon the above facts, Henricks presents essen-
tially three issues for review:
1. Did Henricks receive effective assistance of
counsel?
2. Was it a conflict of interest for attorney Winston
to represent Henricks a.nd for attorney Belke to sit in d.uring
Henricks's initial appearance?
3. Was Henricks prejudiced by inaccuracies in the
presentence investigation report?
Before beginning our discussion of the issues present-
ed, we note that Henricks is appearing pro - in this appeal
se
of the denial. of his petition for post-conviction relief.
Since Henricks has elected to a.ct in this capacity, we find
that he will be held to the same standards as a.ny appellate
attorney in a matter such as this.
Secondly, as we noted recently in Fitzpatrick v. State
(Mont. 1 9 8 3 ) , P.2d , 40 St.Rep. 1598, we observe
that all of the issues presented here could have been brought
at the time of Henricks's original appeal of his conviction.
While we may consider these issues at this time, we will also
take into consideration the fact that these issues, if valid.,
could and should have been raised at the time of appeal of
the conviction. It is clea.rly an abuse of the post-convic-
tion relief statute to raise or manufacture issues long after
the proper time for presentation of such issues. With the
above two factors in mind, we now proceed to the discussj.on
of the issues presented.
Did Henricks receive effective assistance of counsel?
Henricks presents us with a list of twenty-eight charg-
es which he alleges are evidence of "per - ineffective
se"
assistance of counsel. Most of these charges are frivolous
and vague and are not supported by evidence in the record.
Of the twenty-eight charges listed, the following might
be of merit if supported by the record:
(1) failure by Winston to invoke the spousal privilege
set forth in section 46-16-212, MCA;
(2) failure by Winston to interview a witness and call
certain other witnesses;
(3) failure by Winston in not being present during the
present.ence investigation report interview; and,
(4) fa.ilure by Winston to object to alleged prosecuto-
ria.1 misconduct.
As to the charge of failure by Winston to invoke the
spousal privilege, Henricks has clearly waived his right to
question that trial tactic at this time. When Lorraine
Henricks was called to testify, the court interrupted the
direct examination and asked.:
"The Court: For the record now I would
like Mr. Henricks to advise the Court
whether he is consenting to Mrs. Henricks
testifying.
"Mr. Henricks: Yes, I do."
We also note that Henricks signed an affidavit stating
that the spousal privilege ha.d been explained to him. While
this affidavit alone perhaps would not suffice, we find that
the affidavit in conjunction with Henricks's response in
court clearly constitutes waiver. Consequently, Yenricks
cannot now claim failure to invoke the spousal privilege as
evidence of ineffective assistance of counsel.
Even if the affida.vit and testimony did not constitute
waiver, Henricks has failed to show prejudice. Four other
witnesses gave testimony from which the jury could infer
Henricks was driving at the time of the hit-and-run. State
v. Henricks (Mont. 1982), 653 P.2d 479, 481, 39 St.Rep. 2022,
2024.
(2) The second issue to be discussed is the failure by
Winston to interview a witness and call- certain other wit-
nesses. Henricks claims that Winston's failure to interview
Dr. Mark Borke, an emerqency room physician who examined
Henricks and his wife following the accident, constituted
ineffective assistance of counsel. As in the other allega-
tions, Henricks again fails to allege how this prejudiced
him. It is also abundantly clear from the transcript that
Dr. Borke's lack of experience, training and knowledge was
clearly brought out by defense attorney Winston on
cross-examination.
Henricks also states that certain named witnesses
should have been called. However, he fails to state the
significance of these witnesses, i.e. , what they would have
said, how their testimony would have assisted in his defense,
and how he was prejudiced by Winston's failure to call them.
There is also no evidence to show Henricks wanted these
witnesses called during trial and that he informed Winston of
of this.
( 3 ) The third allegation to be discussed is the failure
by Winston in not being present during the presentence
investigation report interview. Again, Henricks cites no
authority for alleging this to be an act of ineffective
assistance of counsel and again fails to show how he was
prejudiced by Winston's absence. The State cites Baumann v.
United States (9th Cir. 1982), 692 F.2d 565, as follows: "We
hold that a routine presentence interview of an individual
convicted of a noncapital federal offense is not, . . . a
critical stage of the proceeding in which counsel's presence,
or advice, is necessary to protect the defendant's right to a
fair trial." Baumann, 692 F.2d at 578. We find no compel-
ling reason to hold otherwise under these circumstances.
(4) The fourth allegation to be discussed is the fail-
ure by Winston to object to alleged prosecutorial misconduct.
This omission which Henricks alleges constitutes ineffective
assistance of counsel relates to Winston's failure to object
to the prosecutor giving a defense witness his Miranda warn-
ings while the witness was on the stand preparing to testifv.
Initially, Henricks cites no authority to support this alle-
gation of failure to object as evidence of ineffective assis-
tance. Nor does he cite anv authority in his original brief
stating that such an act is prosecutorial misconduct. In his
reply brief, Henricks again attempts to address this issue
but cites cases which are not on point.
We note that Henricks, in making the diverse allega-
tions, has failed to show how these allegations, even if
true, resulted in prejudice to him and stemmed from neglect
or ignorance rather than from informed, professional deliber-
ation. We stated this requirement in State v. Morigeau
(Mont. 1982), 656 P.2d 185, 189, 39 St.Rep. 2311, 2317, and
find that Henricks has failed to meet this burden. As we
stated in State v. LaValley (Mont. 1983), 661 P.2d 869, 872,
40 St.Rep. 527, 530, "[hlistorically, in Monta.na and else-
where, the burden has been heavy on one who seeks to reverse
a judgment on the grounds of incompetency of counsel. " In
LaValley, the issue of heffective assistance of counsel was
properly raised on direct appeal of the convi.ction of delib-
erate homicide and aggravated kidnapping. If the burden is
heavy when the issue is raised on direct appeal, it follows
that the burden on petitioner must be even heavier when the
issue is raised, apparently as an afterthought, only after
petitioner's conviction has been upheld on appeal. As we
stated in Fitzpatrick, it is not the purpose of the post-con-
viction relief statute to provide successive opportunities
for access to the appellate court simply because petitioner
is not pleased with his conviction or has failed on direct
appeal. The post-conviction relief statute requires peti-
tioner to meet a two-part test, which test Henricks has
failed to meet. Fitzpatrick, 40 St.Rep. at 1600.
In State v. Rose (Mont. 1980), 608 P.2d 1074, 37
St. Rep. 642, this Court adopted. the "reasonably effective
assistance test" as stated by the Ninth Circuit Court of
Appeals in Cooper v. Fitzharris (9th Cir. 1978), 586 F.2d
1325: "Persons accused of crime are entitled to the effec-
tive assistance of counsel acting within the range of compe-
tence demanded of attorneys in criminal cases." State v.
Rose, 608 P.2d at 1081. As we stated in LaVal-ley, "In evalu-
ating defense counsel's representation, it is not our func-
tion to second-guess trial tactics and the strategv."
LaValley, 661 P.2d at 872. We also noted that "reasonably
effective counsel does not mean that the defendant is consti-
tutionally guaranteed such assistance of counsel as will
necessarily result in his acquittal." Lavalley, supra.
"Success is not the test of efficient counsel, frequently
neither vigor, zeal, nor skill can overcome the truth."
State v. Rose, 608 P.2d at 1082, quoting State v. Forsness
(1972), 159 Mont. 105, 110, 495 P.2d 176, 178-179.
The second major issue raised by Henricks is whether it
wa.s a conflict of interest for Winston to represent Henricks
and for attorney Belke to sit in during Henricks's intitial
appearance.
We note that Winston was hired by Henricks a.nd not
appointed by the court. We also note that the motion to
continue, quoted above, a.nd signed by Henricks, clearly
informed Henricks of Winston's prior association with the
county attorney's office. Despite this fact, Henricks re-
tained Winston as his defense counsel. Under these specific
circumstances, Henricks, by his acts, waived his right to
assert any conflict of interest charge against Winston based
on Winston's prior employment.
Henricks also asserts that it was a conflict of inter-
est for Belke to sit in on Henricks's initial hearing. At
the time of the hearing, Belke was a public defender repre-
senting Henricks's wife Lorraine. Belke sat in on the hear-
ing at the request of the justice of the peace. We have
stated the rule on representation at initial hearings as
follows:
"The United States Constitution requires
the appointment of counsel for indigent
defendants at all critical stages of the
prosecution. .. The initial appearance
is not a 'critical stage' of the prosecu-
tion in Montana. There was no potential
for substantial prejudice to the defen-
dant's rights. The defendant was merely
made aware of the charges against him and
informed of his constitutional rights.
We therefore hold that the defendant's
right to effective assistance of counsel
was not violated." State v. Dieziger
(Mont. 1982), 650 P.2d 800, 802, 39
St.Rep. 1734, 1736.
The State argues that since Henricks was not constitu-
tionally entitled to an attorney at his initial hearing, he
cannot now claim prejudice because his wife's attorney sat in
on the proceedings. We find the State's argument persuasive
and hold. accordingly.
111.
The third major issue raised by Henricks alleges preju-
dice due to inaccuracies in the presentence investigation
report.
It was pointed out to the court at the sentencing
hearing that there was an error regarding a DUI charge listed
on November 4, 1980. The court recognized that the date was
incorrect.
Henricks also claims that charges entered clearly on
the report as having been dismissed should not have been
included. This contention is contrary to law in this state
and therefore without merit. State v. Baldwin (Mont. 1981) ,
629 P.2d 222, 224, 38 St.Rep. 882, 884.
Henricks also states that a juvenile charge should not
have been included in the presentence report. We have held
it permissible to allow juvenile records as part of the
presentence investigation report at a sentencing hearing.
State v. Radi (Mont. 1979), 604 P.2d 318, 321, 36 St.Rep.
2345, 2348.
In conclusion, we find Henricks's allegations not only
untimely but also without merit. Consequently, we affirm the
order of the District Court dismissing Henricks's petition
for post-conviction relief.
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Chief Justice
We concur: