NO. 94-120
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Respondent and Respondent,
LAWRENCE R. SHEPPARD,
Petitioner and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William Boggs, Missoula, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Jennifer
Anders, Assistant Attorney General, Helena, Montana;
Robert L. Deschamps, III, Missoula County Attorney,
Betty Wing, Deputy County Attorney, Missoula,
Montana
Submitted on Briefs: December 1, 1994
Decided: February 23, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
After an evidentiary hearing, the District Court for the
Fourth Judicial District, Missoula County, denied Lawrence
Sheppard's petition for post-conviction relief alleging ineffective
assistance of counsel. We affirm.
The sole issue on appeal is whether the District Court erred
in denying Sheppard's petition for post-conviction relief.
BACKGROUND
This case was previously before this Court in State v.
Sheppard (1992), 253 Mont. 118, 832 P.2d 370 (Sheppard I), wherein
Sheppard appealed his conviction of sexual intercourse without
consent, a felony in violation of § 45-5-503, MCA (1989). The
underlying facts giving rise to his conviction are set out fully in
Sheppard I, and will not be repeated here.
In his appeal, Sheppard argued that the trial court should
have instructed the jury, sua sponte, on the lesser-included
offense of misdemeanor sexual assault, and that the court's failure
to give the lesser-included offense instruction resulted in a
denial of his right to a fair trial. We disagreed and affirmed
Sheppard's conviction, holding that the trial court had no duty to
instruct on a lesser-included offense in the absence of a request
for such an instruction. Our basis for that decision is that
counsel must be allowed to determine his or her own trial strategy,
and that to require the court to instruct, sua sponte, on the
lesser-included offense might impinge on the advocate's role.
Sheppard, 832 P.2d at 373.
2
On October 5, 1992, Sheppard filed a petition for post-
conviction relief alleging ineffective assistance of counsel, based
upon his counsel's failure to offer a lesser-included offense
instruction of misdemeanor sexual assault at the time instructions
were settled. Upon Sheppard's request, the District Court held an
evidentiary hearing to determine whether counsel's failure to offer
a lesser-included instruction, whether by inadvertence or as a
tactical decision constituted ineffective assistance of counsel.
Both Sheppard and his trial counsel testified at the hearing.
Sheppard testified that he did commit a crime, but that he was not
guilty of sexual intercourse without consent because the victim
originally consented to the act and, upon her resistance, Sheppard
desisted from his conduct. Sheppard stated he thought he was
guilty of "solicitation to prostitution" or a "lewd and lascivious
act," believing these were synonymous with misdemeanor sexual
assault. Sheppard also testified that his counsel never informed
him of the possibility of giving a lesser-included offense
instruction.
Counsel testified, that prior to trial, the State offered
Sheppard a plea bargain for felony sexual assault. Sheppard and
his attorney discussed the elements of both misdemeanor and felony
sexual assault. Counsel explained that felony sexual assault
required proof of the additional element of bodily injury. Counsel
informed Sheppard that the potential penalty for felony sexual
assault was imprisonment for twenty years and that he believed
Sheppard could be found guilty of the felony because the victim was
3
prepared to testify that she experienced pain during the incident.
Sheppard rejected the plea bargain.
Counsel testified that he also explained how both misdemeanor
and felony sexual assault differed from the crime of sexual
intercourse without consent, the latter requiring a showing of
penetration. Sheppard adamantly denied the victim did not consent,
denied that penetration occurred, and insisted he was innocent of
the crime charged. Counsel stated that he believed the State's
case was weak regarding the element of penetration, and he believed
he could attack the victim's credibility. In addition, the State
had mentioned it was considering filing an amended information
charging sexual intercourse without consent or in the alternative
felony sexual assault as a means of increasing a chance of
conviction. Given these circumstances, and the potential that the
jury might find Sheppard guilty of felony sexual assault, the
decision was made to proceed to trial and attempt to gain an
acquittal on the sexual intercourse without consent charge.
Counsel testified that the trial strategy was to attempt to
gain an acquittal by demonstrating consent and lack of penetration,
and that they did not vary from the strategy throughout the trial.
Counsel also stated that while he believed he had put on a strong
case by attacking the victim's credibility, Sheppard's own
testimony was damaging to his case. When asked if he had
considered offering misdemeanor sexual assault as a lesser-included
offense at the end of trial, counsel testified he did not consider
offering a lesser-included offense instruction, because the defense
4
strategy had already been established, and they continued with this
strategy. Counsel stated he did not offer the misdemeanor sexual
assault instruction even after the State had lost its ability to
charge felony sexual assault, by failing to file an amended
information.
Upon considering the testimony and the parties' briefs, the
District Court issued an opinion and order on October 20, 1993,
denying Sheppard's petition. The court concluded that counsel's
decision to forgo a lesser-included offense instruction was a
tactical decision based upon all of the facts available to him and
Sheppard's strident proclamations of innocence. Sheppard appeals
from this order.
DISCUSSION
First, we discuss a preliminary matter which was not addressed
by either party, i.e., whether sexual assault is in fact a lesser-
included offense of sexual intercourse without consent. This Court
has decided three prior cases in which it was assumed, without the
issue being actually raised or decided, that sexual assault is a
lesser-included offense of sexual intercourse without consent.
State v. Ogle (1992), 255 Mont. 246, 841 P.2d 1133; State v.
Lundblade (1986), 221Mont. 185, 717 P.2d 575, Sheppard I, 832 P.2d
370.
In Oqle, the defendant alleged the trial court erred by
offering the State's instructions defining sexual assault as a
lesser-included offense of sexual intercourse without consent.
However, we declined to discuss the precise issue of whether sexual
5
assault is a lesser-included offense of sexual intercourse without
consent because the defendant failed to properly object to the
instruction at the time it was offered. Osle, 841 P.2d at 1136.
In Lundblade, the jury was given an instruction defining
sexual assault as a lesser-included offense of sexual intercourse
without consent, and neither side objected to the instruction.
Lundblade, 717 P.2d at 578. However, the issue on appeal was not
whether sexual assault was, in fact, a lesser-included offense of
sexual intercourse without consent. Therefore, we did not analyze
the relationship of sexual assault to sexual intercourse without
consent under the established test from Blockburger v. United
States (I932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, in order
to determine "whether each [statutory] provision requires proof of
an additional fact which the other does not . .'I State v. Madera
(198X), 206 Mont. 140, 151, 670 P.2d 552, 557-50, citing
Blockburaer, 284 U.S. at 304, 52 S.Ct. at 180, 76 L.Ed. at 309.
Rather, we concluded that the record contained sufficient evidence
to establish the crime of sexual assault, and proceeded on the
basis of the parties' and the district court's assumption that
sexual assault was a lesser-included offense of sexual intercourse
without consent. Lundblade, 717 P.2d at 578. We note here, in
passing, that the dissent in Lundblade concluded that sexual
assault is not a lesser-included offense of sexual intercourse
without consent. Lundblade, 717 P.2d at 579.
Similarly, in Sheppard I, the parties did not raise the
specific question of whether sexual assault is, in fact, a lesser-
6
included offense of sexual intercourse without consent. We simply
addressed the issue of whether the trial court was required to
provide, SUa sponte, a lesser-included offense instruction.
Sheooard I, 832 P.2d at 372. Our decision in Sheupard I,
therefore, was directed to that issue and not to whether sexual
assault is a lesser-included offense of sexual intercourse without
consent.
In the instant case, we will, again, proceed on the assumption
that sexual assault is a lesser-included offense of sexual
intercourse without consent because that precise issue was not
properly preserved for appeal or raised in Sheppard I. Having not
been raised on appeal, that issue is now barred from consideration
in this post-conviction relief proceeding. Section 46-21-105(2),
MCA.
Moreover, if sexual assault is not a lesser-included offense
of sexual intercourse without consent, that would not help Sheppard
in his instant petition in any event, as his counsel could hardly
be found ineffective for failing to offer an instruction for an
offense that was not a lesser-included offense of the greater crime
with which he was charged and convicted. We emphasize, however,
that the precise issue of whether sexual assault is a lesser-
included offense of sexual intercourse without consent under
Blockburqer, under our prior case law defining lesser-included
offenses, and under 5 46-11-410, MCA, remains to be decided in some
future case, and we do not resolve that question here.
The standard of review for a denial of a petition for post-
7
conviction relief is whether, substantial evidence supports the
findings and conclusions of the district court. State v. Barrack
(1994), 882 P.2d 1028, 1031, 51 St.Rep. 983, 985.
This court reviews claims of ineffective assistance of counsel
under the two-part test set forth in Strickland v. Washington
(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. State v.
Robbins (1985), 218 Mont. 107, 114, 708 P.Zd 227, 232; State v.
Mahoney (19941, 870 P.2d 65, 72-73, 51 St.Rep. 160, 164. According
to the two-prong Strickland test, the defendant must first show
that counsel's performance was deficient, by demonstrating that
counsel made errors so serious that counsel was not functioning as
the "counsel" guaranteed the defendant by the Sixth Amendment. The
second prong requires the defendant to show that counsel's
deficient performance so prejudiced the defendant that he was
deprived his right to a fair trial. Mahonev, 870 P.2d at 72-73.
"The standard for evaluating prejudice is whether a reasonable
probability exists that but for counsel's deficient performance,
the trial's outcome would have been different." State v. Coates
(1990), 241 Mont. 331, 337, 786 P.2d 1182, 1185. This Court will
not, however, second guess trial tactics and strategy when
evaluating a defense counsel's performance. Coates, 786 P.2d at
1185.
Sheppard claims that his trial counsel's failure to ask for a
lesser-included offense instruction of misdemeanor sexual assault
constituted ineffective assistance of counsel. Sheppard contends
that while his counsel may have made a decision as tactical
8
strategy not to request such an instruction at the beginning of the
case, he should have reconsidered his decision at the conclusion of
the case, after the State gave up its opportunity to file felony
sexual assault charges and following the defendant's own damaging
testimony.
While it is correct that counsel did not consider offering a
lesser-included offense instruction after the close of evidence,
counsel's testimony indicated that he believed he had put on a
strong defense and decided to continue with the established
strategy of attempting to gain an acquittal. Counsel testified:
We had our strategy mapped out and planned, and we did
not vary from it according to the evidence of the trial,
because I think we both felt, even given his damaging
testimony, that we were still doing okay, because we had
attacked her credibility reasonably well.
Although this decision, in hindsight, appears to have been
questionable, we will not second guess counsel's tactical
decisions. State v. Jungers (1990), 245 Mont. 519, 523-24, 802
P.2d 615, 618.
Our decision in Sheuuard I, supports our conclusion here, as
we have already concluded that:
[Ulnder our adversarial system of justice, the
prosecution and defense must have the option of foregoing
a lesser charge instruction for strategic reasons.
Lawyers, not judges, should try cases. Although the
record does not enlighten us, both prosecution and
defense counsel may have made a decision to force the
jury to either convict or acquit of the offense charged
without being given the opportunity to take the middle
ground and convict on misdemeanor sexual assault.
Sheppard I, 832 P.2d 373.
As stated earlier, counsel's testimony at the post-conviction
9
relief hearing demonstrates that counsel and his client made a
decision to force the jury to either convict or acquit. Counsel
continued with this strategy after the close of the evidence based
on the lack of evidence of penetration and the conflicting evidence
concerning consent. Given these circumstances, we conclude that it
was not improper for counsel to continue with his original
strategy.
Sheppard also maintains that if counsel's decision not to
offer the lesser-included offense instruction was a tactical
decision, it was unreasonable. He argues that "tactical decisions
which are ill-considered, uninformed, or made neglectfully or
ignorantly, may constitute ineffective assistance, if they
substantially prejudice the defendant." Accordingly, Sheppard
concludes that counsel's tactical choices must be minimally
reasonable, and he provides a set of proposed guidelines for this
Court to follow to determine if counsel's decision was minimally
reasonable.
We decline to review or adopt these guidelines for the same
reasons as did the United States Supreme Court in Strickland. That
Court warned:
The availability of intrusive post-trial inquiry
into attorney performance or detailed guidelines for its
evaluation would encourage the proliferation of
ineffectiveness challenges. Criminal trials resolved
unfavorably to the defendant would increasingly come to
be followed by a second trial, this one of counsel's
unsuccessful defense. Counsel's performance and even
willingness to serve could be adversely affected.
Intensive scrutiny of counsel and rigid requirements for
acceptable assistance could dampen the ardor and impair
the independence of defense counsel, discourage the
independence of defense counsel, discourage the
10
acceptance of assigned cases, and undermine the trust
between attorney and client.
Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.
Finally, Sheppard argues that the District Court erred in
concluding that offering the lesser-included offense instruction of
misdemeanor sexual assault would have been problematic for defense
counsel. Defense counsel argued, and the District Court agreed,
that it would have been difficult for counsel to maintain the
victim's consent as part of Sheppard's defense and then offer
misdemeanor sexual assault as a lesser-included offense instruction
when an element of that crime is lack of consent.
Sheppard claims this conclusion is in error on two grounds.
First, he argues that while the jury may not have concluded that
the victim consented, the defense had presented strong evidence
regarding lack of penetration. Therefore, according to Sheppard,
counsel should have offered a misdemeanor sexual assault
instruction and vigorously argued that there was no penetration.
However, this argument does not support an ineffective
assistance of counsel claim. Counsel testified at the evidentiary
hearing that a misdemeanor sexual assault instruction would have
weakened his strategy of attempting to gain an acquittal. This
Court has previously held that when defense counsel makes a
tactical decision to forgo an instruction that is inconsistent with
the defense, we will not find error supporting an ineffective
assistance of counsel claim. State v. Johnson (1993), 257 Mont.
157, 163, 848 P.2d 496, 499.
Second, Sheppard argues that counsel was mistaken in
11
concluding that the two defenses were inconsistent. He maintains
that the "without consent" element of sexual assault and sexual
intercourse without consent involve two different standards
concerning lack of consent. According to § 45-5-501(l), MCA
(19891, and § 45-5-403, MCA (19891, the term "without consent" for
the crime of sexual intercourse without consent, requires
submission to sexual intercourse induced by "force or by threat of
imminent death, bodily injury, or kidnapping to be inflicted on
anyone." Section 45-5-510(l), MCA (1989). Under the sexual
assault statute, without consent does not include this element.
Section 45-5-502, MCA (1989).
Therefore, according to Sheppard, because the consent element
in the crime of sexual intercourse without consent requires the
additional showing of force or threat of force, it would have been
consistent to argue that while the victim did not consent, she did
not submit as a result of force or threat of force. Sheppard
argues that the victim's own testimony established that the level
of consent "absolutely precluded a conviction of a felony, but did
not necessarily preclude a conviction of misdemeanor sexual
assault." (Emphasis in original.) Sheppard concludes that the
jury should have been advised of the two different standards and
offered the misdemeanor sexual assault instruction.
We conclude, however, that Sheppard is merely providing an
example of how he would have tried the case. Furthermore, his
argument actually supports trial counsel's all or nothing strategy,
because according to Sheppard, the victim's testimony "absolutely
12
precluded conviction of a felony," i.e., sexual intercourse without
consent.
Upon review, we conclude that substantial evidence supports
the District Court's conclusion that counsel's decision to forgo
offering the lesser-included offense instruction was a reasonable
tactical decision. That Sheppard would now, with the benefit of
hindsight, adopt a different trial strategy, does not render his
first defense ineffective. Accordingly, we hold that the District
Court properly denied Sheppard's petition for post-conviction
relief.
AFFIRMED.
13
February 23, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
William Boggs
Attorney at Law
P.O. Box 7881
Missoula, MT 59807
HON. JOSEPH P. MAZUREK, Attorney General
, Assistant
Justice Bldg.
Helena, MT 59620
Robert L. Deschamps, III, County Attorney
Betty Wing, Deputy
Missoula County Courthouse
Missoula. MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA