No. 90-263 and 9 1 - 0 2 2
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
v.
TIMOTHY ALAN HAMM,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Daniel Donovan, Attorney at Law, Great Falls, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Paul D. Johnson, Assistant Attorney General, Helena,
Montana
Patrick L. Paul, Cascade County Attorney, Great
Falls, Montana; Steven M. Hudspeth, Deputy County
Attorney, Great Falls, Montana
SEP 1 0 1991 Submitted on briefs: July 2 5 1 1991
L9 3fi2?:f~ Decided: September 10, 1991
t
' Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
A jury convicted the defendant, Timothy Allen Hamm (Hamm) of
sexual intercourse without consent in the Eighth Judicial District,
Cascade County. Pursuant to this conviction and a prior, unrelated
conviction of sexual intercourse without consent, the trial court
designated and sentenced Hamm as a persistent felony offender.
From this conviction and sentence Hamm appeals. We affirm.
The following issues are raised on appeal.
1. Was the evidence sufficient to support the jury's verdict
of sexual intercourse without consent?
2. Did Hamm knowingly, voluntarily, and intelligently waive
his right to testify at trial?
3. Did Hamm receive effective assistance of counsel?
4. Was the trial court correct in designating Hamm a
persistent felony offender?
Hamm did not testify at the trial; however, he presented
witnesses and stipulated that he had sexual intercourse with the
victim, D.B. on March 19, 1989. The following facts summarize
D.B.'s testimony including facts elicited from her during cross-
examination. D.B. testified that the incident charged was the
third in a trilogy of forced sexual encounters by Hamm on the
victim.
The first rape occurred in October, 1988, while D.B. was
watching the children of Ham's girlfriend. Assuming that Hamm
arrived to pick-up the children D.B. let Hamm into the house. The
children were sleeping in another part of the house, and D.B. and
2
her son were sleeping on the couch when Hamm arrived. Hamm grabbed
D.B. by the hair, and ordered her to undress. The commotion awoke
D.B. Is son and Hamm ordered D.B. to carry the child into another
room.
D.B. was frightened of Hamm. She attempted to fight Hamm away
and pleaded for him to stop. H a m turned D.B. away from him and
penetrated her. While holding onto D.B.'s hair, Hamm pushed D.B.
to her hands and knees and continued raping her. H a m finally
stopped when he realized that his girlfriend's four-year-old child
was in the kitchen observing the rape.
Afterwards, Hamm offered D.B. money if she would not tell his
girlfriend of the rape. D.B. refused the money. She did not
report this incident to the police; however, D.B. called the Mercy
Home, for battered women. D.B. and her children remained at the
Mercy Home for three weeks after the incident.
Approximately four months later, in February of 1989, Hamm
came to D.B.Is house to apologize to her for the prior rape. She
asked Hamm to leave. H a m told her that he had nowhere to stay
whereupon D.B. told him "if you leave me alone, you can stay.I1
Hamm went upstairs to sleep and D.B. stayed downstairs on the
couch. Sometime later Hamm awoke D.B. and told her to follow him
upstairs. D.B. was frightened of Hamm and did not want him to
"force her again." D.B. had sex with Hamm, then went downstairs.
D.B. had no phone, but she contacted her neighbor for assistance,
and demanded that Hamm leave her house. D.B. did not report this
incident to the police either.
The incident charged occurred, March 19, 1989. At
approximately 1:00 a.m., Hamm appeared at D.B.ls house and accused
D.B. of reporting the prior rape to the police. Hamm made advances
and when D.B. declined, Hamm accused D.B. of "leading him on." He
grabbed D.B. by the hair and pushed her up the stairs and onto the
bed. Hamm ordered D.B. to undress.
Before D.B. had time to undress, Hamm forced his fingers into
her vagina. D.B. cried, told Hamm that he was hurting her, and
begged him to stop. Instead of stopping, Hamm pushed D.B. onto her
stomach, penetrated her anus with his penis, pulled her onto her
hands and knees and penetrated her vagina with his penis. Hamm
asked D.B . if she enjoyed Itf
orced sex. Hamm continued raping and
abusing D.B. for several hours.
At approximately 7:20 a.m. , D.B. got away from Hamm. She went
to her neighbor's apartment, called the police and the Mercy Home,
and then went to the hospital for a medical exam. The examining
physician testified that he found a bruise on D.B.Is thigh and an
abrasion in her vagina. The doctor concluded that force caused
the abrasion.
Because Hamm was convicted of another rape on October 12,
1989, the District Court sentenced Hamm as a persistent felony
offender under 5 46-18-501, MCA.
Hamm appealed this sentence and conviction on April 18, 1990.
This Court bifurcated Hammls appeal by holding some issues in
abeyance and remanding the following issues to the District Court
for post-conviction evidentiary hearings: (1) Did Hamm voluntarily
waive his right to testify at trial; and (2) Did Ham's attorney
effectively represent Hamrn at the trial? The District Court found
that H a m knowingly and voluntarily waived his right to testify;
and that Hamm's attorney provided effective representation.
In this appeal, we have consolidated for our review issues
relating to the trial and issues relating to the District Court's
post-conviction determinations.
I
Was the evidence sufficient to support a verdict of guilty
on the charge of sexual intercourse without consent?
Hamm stipulated that he had sexual intercourse with the victim
on March 19, 1989. However, he contends that D.B. acquiesced and
that the State's evidence was insufficient to support a guilty
verdict.
The State contends that this verdict should not be set aside
for insufficient evidence. This Court in viewing the evidence in
the light most favorable to the prosecution agrees with the State
that any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. State v. Krum
(1989), 238 Mont. 359, 362, 777 P.2d 889, 891.
In order to sustain the conviction of sexual intercourse
without consent, the State had to prove that Hamm compelled the
victim Itto submit by force or by threat of imminent ... bodily
injury." 9 45-5-501, MCA. D.B.Is testimony demonstrated that
Hamm used physical force to compel D.B. to perform sexual
intercourse.
Hamm grabbed D.B. by her hair and forced her up the stairs.
Hamm ordered her to undress and asked D.B. if she liked "forced
sex.I1 Hamm repeatedly penetrated her while she cried and pleaded
with him to stop. D.B.Is testimony was confirmed by her examining
physician who testified that the abrasion discovered on the
victim's vagina after the rape indicated "some degree of force."
These facts indicate that the jury had substantial evidence
to support the conclusion that Hamm compelled D.B. to submit to
sexual intercourse by force. Because a rational trier of fact
could have found beyond a reasonable doubt the essential element
of "without consentvf, hold that the State s evidence supports
we
Hamrnls conviction of sexual intercourse without consent.
I1
Did Hamm knowingly, voluntarily, and intelligently waive his
right to testify at trial?
Defendant contends that he did not knowingly or voluntarily
waive his right to testify in his own behalf, and that this Court
should require the trial court to inform defendants on-the-record
of their right to testify.
The State contends that this Court should uphold the findings
and conclusions of the trial court which found that Hamm knowingly
and voluntarily waived his right to testify. First, we agree with
the State and conclude that the testimony presented during the
post-conviction hearing shows that Hamm voluntarily waived his
right to testify after conferring with his attorney.
At the post-conviction hearing Hamm's attorney testified that
during a recess, prior to the close of the defendant Is case-in-
chief, he advised Hamm not to testify. Hamm's attorney was afraid
Hamm would lose ''his cool" on the witness stand and open the door
for the prosecutor to bring in evidence of his prior rape
conviction. Counsel based his decision on Hamm's testimony at his
prior rape trial. Hamm's attorney represented Hamm in both rape
cases. After conferring with his mother, Hamm agreed with counsel
that Hamm should not testify. Hamm admitted he was not surprised
when the defense rested and he made no indication to the court or
his attorney that he wanted to take the stand.
Because Hamm had exercised his right to testify at his prior
rape trial, conferred with his mother after his attorney advised
him not to testify, and failed to notify the court of his desire
to testify, we agree with the trial court and hold that Hamm
knowingly and voluntarily waived his right to testify at trial.
Next, we agree that criminal defendants have a constitutional
right to testify under Art. 11, 5 24, Mont. Const. (1972). State
v. Johnson (1986), 221 Mont. 503, 515, 719 P.2d 1248, 1256. To
protect this right the defense urges this Court to adopt the
procedural safeguards of an on-the-record colloquy by the trial
judge to assure the criminal defendant has voluntarily, knowingly,
and intentionally waived his right to testify. People v. Curtis
(Colo. 1984), 681 P.2d 504, 515.
The State argues that this Court should adopt the majority
position of United States v. Martinez (9th Cir. 1989), 883 F.2d
750, 760. In Martinez, the court stated:
All circuit courts reaching the question have held that
courts have no affirmative duty sua sponte to address a
silent defendant and inquire whether he knowingly and
intelligently waives the right to testify.
By far the majority of states that have considered the
question also have held that courts have no duty sua
sponte to advise the defendant of his right to testify
and establish on-the-record that this right was waived
knowingly and intelligently. Waiver of this right is
presumed from the defendant's failure to testify or
notify the court of his desire to do so.
At least seven reasons have been given for this
conclusion: First, the right to testify is seen as the
kind of right that must be asserted in order to be
recognized. Second, it is important that the decision
to testify be made at the time of trial and that the
failure to testify not be raised as an afterthought after
conviction. Third, by advising the defendant of his
right to testify, the court could influence the defendant
to waive his right not to testify, Itthusthreatening the
exercise of this other, converse, constitutionally
explicit and more fragile right. Fourth, a court so
advising a defendant might improperly intrude on the
attorney-client relation, protected by the Sixth
Amendment. Fifth, there is danger that the judge's
admonition would introduce error into the trial. Sixth,
it is hard to say when the judge should appropriately
advise the defendant --- the judge does not know the
defendant is not testifying until the defense rests, not
an opportune moment to conduct a colloquy. Seventh, the
judge should not interfere with defense strategy.
For all these convergent reasons we join other circuits
and the majority of states in concluding that the court
has no duty to advise the defendant of his right to
testify, nor is the court required to ensure that an on-
the-record waiver has occurred. [Citations omitted.]
Martinez, 833 F.2d at 760.
The defense also relies on Boyd v. United States (D.C.App.
1991) , 5 8 6 A. 2d 670. In Boyd, the court criticized the Martinez
decision; however, it did not require that the trial court conduct
an on-the-record inquiry to determine if the defendant knowingly
and intelligently waived his right to testify. Boyd, 586 A.2d at
We adopt the foregoing analysis of the Martinez court and
conclude that the District Court had no duty to inform Hamm of his
right to testify or receive an on-the-record waiver. We also
conclude that Hamm waived this right by failing to testify and
failing to notify the court that he wished to testify. Therefore
we hold that the District Court correctly found that Hamm knowingly
and voluntarily waived his right to testify.
Did the defendant receive effective assistance of counsel?
Hamm contends that his defense counsel failed to adequately
prepare for trial, failed to interview the State's witnesses,
failed to propose certain jury instructions, failed to investigate
the reputation and character of the victim, and failed to call Hamm
to testify on his own behalf.
The State argues that under State v. Kolberg (1990), 241 Mont.
105, 109, 785 P.2d 702, 704, Hamm received effective assistance of
counsel. In Kolberq 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 counseltsperformance 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 preiudiced the
defense. ... To show prejudice, a defendant must show
that, but for counseltsunprofessional 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. (Emphasis added.) (Citations
omitted. )
Kolberq, 241 Mont. at 109, 785 P.2d at 704.
Evidence presented at the post-conviction hearings showedthat
Hamm's attorney met with H a m several times prior to trial,
interviewed or obtained statements from all of the prosecution's
witnesses, including the victim, and presented four witnesses for
the defense at the trial. Additionally, our review of the trial
transcript demonstrates that Hamm's attorney elicited favorable
evidence from D.B. during an extensive cross examination of the
victim. Finally, as previously discussed, counsel presented
strategic reasons for advising Hamm not to testify.
Hamm did not offer evidence that his attorney's preparation
for trial or presentation of Ham's defense was deficient. Further
Hamm fails to show prejudice to his defense or that counsel's
actions deprived him of a fair trial. We agree with the District
Court and hold that Hamm received effective assistance of counsel.
IV
Was it error for the District Court to sentence Hamm as a
persistent felony offender?
Hamm's prior felony conviction arose from the rape of another
victim, S.A. on February 7, 1989. Ham was charged and
subsequently convicted of this rape on August 17, 1989. On March
19, 1989, while out on bail for the rape of S.A., Hamm raped D.B.
On January 17, 1990, the jury convicted Hamm of raping D.B. The
court sentenced him as a persistent felony offender on February 20,
1990.
Defendant contends that 5 46-18-501, MCA, the statute defining
a persistent felony offender, does not apply because although he
raped S.A. prior to raping D.B., the prior felony conviction of
August 17, 1989 occurred after the date he committed the present
felony, March 19, 1989.
In defining the persistent felony offender, the statute
provides that:
A "persistent felony offender" is an offender who has
previously been convicted of a felony and who is
presently being sentenced for a second felony committed
on a different occasion than the first. An offender is
considered to have been previously convicted of a felony
if:.. . less than 5 years have elapsed between the
commission of the present offense and . . . the previous
felony conviction...
Section 46-18-501, MCA.
This Court rejected a similar argument by the defense in State
v. Williamson (1985), 218 Mont. 242, 707 P.2d 530. In that case
the defendant was sentenced as a persistent felony offender even
though the second offense was committed prior to the first felony
conviction. Williamson explains:
[ § 46-18-5011 simply requires a past conviction and a
sentencing on a subsequent one... The prisoner argues
that he has, under this statute, a sort of "window of
opportunity.I1 He can commit all manner of felonies
between the time he commits his first felony and his
conviction therefor and be immune from persistent felony
designation because the five year clock doesn't start
running until after the first conviction. There is no
evidence in the statute, or any place else, that the
legislature intended to provide such an open season.
Williamson, 218 Mont. at 246, 707 P.2d at 532-33.
Similarly, in this case we conclude that Hamm falls squarely
within the persistent felony offender statute. First the statute
requires that the offender have a previous felony conviction and
that the offender is currently being sentenced for a second felony.
In this case, H a m meets both requirements because he was convicted
of raping S.A. August 17, 1989, prior to his February 20, 1990
sentencing in the current proceeding.
Next, the statute requires that the defendant commit the prior
felony and the current felony for which he is being sentenced on
a different occasion. In this case the offenses occurred on
different occasions. The rapes occurred six weeks apart and
involved different victims.
Finally, the statute requires that the commission of the
present offense be within five years of the previous felony
conviction. In this case Hamm committed the present offense on
March 19, 1989. On August 17, 1989 he was convicted of the prior
felony. March 19, 1989 to August 17, 1989 is clearly within the
five year statutory period. We hold that the court acted properly
when it sentenced Hamm as a persistent felony offender.
Affirmed .
We Concur: