*1 PORTER, STEVEN Appellant, Petitioner v. MONTANA, STATE OF Respondent. Respondent No. 01-585. April on Briefs 2002. Submitted Decided December 2002.
For Hon. Mike Paulson, Attorney General, General, John Assistant Montana Helena; Com, County Attorney, Geoffrey T. George J. Ravalli Mahar, Attorney, Hamilton. Deputy County Ravalli of Court. Opinion delivered the
JUSTICE COTTER endangerment, Porter was convicted ofcriminal Appellant Steven 45-5-207, (1997), negligent MCA felony, in violation of § 45-5-208, misdemeanor, in of MCA endangerment, a violation § 45-5-201(1), (1997),in assault, misdemeanor of MCA violation Court, County. Porter filed Ravalli Twenty-First Judicial District relief, alleged that several in which he petition post-conviction conviction, that he received ineffective in his errors resulted petition with granted Court of counsel. The District assistance to file a notice assistance for failure regard his counsel’s ineffective days appeal. to file an Porter ten appeal, and allowed of Porter’s claims. dismissed the remainder District Court endangerment, as well as for criminal appeals original conviction in his remaining claims the District Court’s dismissal of Court. judgment affirm the ofthe District relief. We appeal as follows: We restate the issues support sufficient evidence to Porter’s conviction 1. Was there endangerment? right to effective assistance of counsel 2. Porter denied Was for a mistrial? defense counsel’s failure to move FACTUAL AND PROCEDURAL BACKGROUND July 18, 1998, traveled to the Slate Creek On Steven Porter Montana, Darby, intending south Campground, located miles brother, night. accompanied by his Jeff camp there for the Porter was (Jeff), J.C., Willoughby. their friend Dustin At the Jeffs son Randy (Randy) family. Hill and his campground, Porter encountered Randy as both men worked for the acquaintances, Porter and were Selway Stevensville, Montana. Corporation *3 Porter, campground, at the Willoughby Jeff and drank beer while ¶6 by evening July 18,1998, noticeably intoxicated. and Porter was Porter, Randy campground spoke returned to the and with who was insistence, drinking brandishing Randy and a At Porter’s beer rifle. evening examined the rifle and shot a round off into a tree. As the progressed, beer, Porter and his friends continued to drink and Porter eventually grew increasingly upset loud and obnoxious. Porter became disagreement Jeff, over a he had with his brother Jeff. Porter tackled physical fight Willoughby and a ensued men. between two broke Willoughby up fight by putting Porter in a headlock. When Porter, and grabbed couple released Porter his rifle and a beers road, nearby hill. walked to the which traversed a vantage hill, verbally Porter taunted the point From his on the Willoughby. In specific also directed threats at campers. other Porter conflict, Willoughby up went to the road to attempt an to resolve the At some began The men sat down and to talk. speak with Porter. two conversation, angry Willoughby, point during their Porter became with rifle, approximately and five shots behind up held fired Willoughby hit Willoughby’s Willoughby up, head. stood and Porter with the rifle in his face and lower back. Willoughby campsite returned and warned others
campers for campground. that it was not safe them to remain at the Willoughby nearby reappeared then hid in some bushes. Porter at the campsite spoke Randy. Randy and with Porter informed that he had him. Willoughby’s shot rounds off near ear to scare Porter also told Randy any campers sitting that he could have killed around the campfire, Randy as he had “beaded down” on them with his rifle. phrase understood the “beaded down” to mean “take aim.” Montana, Respondent, State of filed an information on August 19,1998, assault, charging felony Porter with two counts of in 45-5-202(2), (1997), assault, violation of MCA misdemeanor § 45-5-201(1), (1997), endangerment, criminal violation of MCA § (1997). 45-5-207, felony, pled guilty in violation of MCA not Porter § 19,1998. 10,1998, charges August all four on On the State November information, charging filed an amended Porter with three counts of assault, felony 45-5-202(2), in violation of MCA misdemeanor § assault, 45-5-201(1), in violation of MCA and two counts of § 45-5-207, endangerment, felony, in violation of MCA (1997). pled guilty charges to all in the amended 25,1998. information on November At proceeded The case trial on December 1998. directed case, on the
close of the State’s Porter moved for verdict felony charges three assault and the two criminal charges. granted regard The District Court motion to the with felony charges, regard the motion assault but denied with endangerment. of one count charges for criminal Porter was convicted negligent endangerment, endangerment, of criminal one count of 17,1998. sentenced misdemeanor assault on December Porter was February on 1999. District Court 7, 2000, February petition post-conviction On Porter filed a relief on petition relief. He later filed an amended petition, alleged amended November 2000. In his conviction, in his and that he received numerous errors resulted conducted a ineffective assistance of counsel. The District Court 2,2001, February 20,2001. July On hearing on Porter’s order, granting part denying part District Court issued an relief. The District Court found that Porter received requested *4 counsel, his appeal as Porter’s counsel failed to ineffective assistance of 5(c), M.R.App.P., the District Court conviction. Pursuant to Rule Court days appeal. file an The District granted Porter ten which to July 9, 2001, Porter petition. On dismissed the remainder of endangerment, as well for criminal original conviction appealed petition remaining claims in dismissal of the District Court’s relief. post-conviction for OF REVIEW
STANDARD support verdict sufficiency of evidence review We most light in the whether, viewing the evidence determine fact could have found any rational trier of prosecution, to the favorable doubt. State beyond crime a reasonable essential elements of the 15, 689, 15. 15, 99, 39 P.3d Bauer, 7, ¶ 2002 MT 308 Mont. ¶ v. ¶ of a district court’s denial of standard of review The correct the district court’s relief is whether post-conviction its conclusions of findings clearly fact are erroneous whether 349, 9, 282, 9, 307 Mont. Wright, ¶ v. 2001 MT ¶ law are correct. State past regard, note that we have in the 753, 42 P.3d 9. In this we ¶ addressing the of review in cases articulated two different standards relief, and most that standard noted above post-conviction denial of evidence commonly and the standard of “whether substantial applied, State findings and conclusions of the district court.” See supports the 330, 335, 145, 148; v. (1996), 279 Mont. 928 P.2d Walker v. Moorman 1, 6, 4; 862 P.2d and State v. Coates State 261 Mont. 331, 336,786 1182, 1185. P.2d This “substantial evidence is incorrect and should no findings and conclusions” standard review relief cases. longer cited as the standard ofreview in be Moorman, Walker, Coates, extent and other To narrow this incorrect standard of applied “substantial evidence” cases have review, they are overruled.
DISCUSSION ISSUE support Was there sufficient evidence endangerment? conviction of criminal are The elements of the offense of 45-5-207(1),MCA(1997), pertinent provides,
enumerated part: knowingly engages in conduct that creates person
A who bodily injury to another of death or serious substantial risk endangerment. commits the offense of criminal we (1996), 280 Mont. In State v. Lambert “knowingly,” regard meaning of the term with considered the ‘knowingly “the endangerment, and concluded that offense ofcriminal *5 154 endangerment
element of criminal
contemplates
a defendant’s
high probability
awareness of the
the conduct in which he is
engaging,
be,
may
whatever
conduct
will cause a
risk
substantial
bodily injury
Lambert,
of death or serious
to another.”
three men
in a
each
a rifle.
at
929
open
P.2d at 853. Jones fires in the direction of an
field.
grove
Smith,
Smith fires
the direction of a
of trees. Unbeknownst
grove
a house sits in the
Finally,
of trees.
Johnson fires in the direction
houses,
Lambert,
of a cluster of
sit
plain
before him in
view.
280
Mont. at
Leaphart
at 853. Justice
concluded that each
conduct, i.e.,
man was
shooting
aware of his
that he
rifle.
However, "under the
“knowingly,” only
Lambert definition of
Johnson
guilty
endangerment,
only
would be
of criminal
as
Johnson’s conduct
resulted in a risk of harm of which he should have been aware.
Lambert,
280
at
Mont.
rifle direction of the Porter Jones, situation to that of the fictitious whose conduct not would have amounted to criminal under the definition of Lambert “knowingly.” However, Leaphart’s “facts” in Justice Lambert example clearly distinguishable are from those in the at case bar. field, open presumably fictitious Jones fired his rifle in an while sober during daylight nighttime, hours. Porter shot his rifle at while Further, angry and intoxicated. the District Court found that Porter’s discharge actually illegal, 61-8-369, of the rifle was MCA any right- makes it a misdemeanor to shoot firearm from or across the of-way any highway county state or federal or road. Since county rifle, was either on or near a road when he shot his his conduct Therefore, illegal. nighttime, because Porter shot his rifle at while intoxicated, angry county adjacent occupied from a road to an analogous is that of the public campground, his situation fictitious Jones. further asserts under Lambert definition of
“knowingly,” prove insufficient evidence existed to that he was aware high probability that his conduct would cause a risk substantial bodily of death or injury campers serious to other at the Slate Creek campground. More specifically, Porter maintains thát there was prove safety rifle, insufficient evidence to that the was off on his or finger that Porter’s trigger, was on the when “beaded down” on the campers vantage other from his point above, on the hill. As stated we challenges sufficiency standard of review for of evidence supporting whether, viewing conviction is the evidence in the light prosecution, any most favorable to the rational trier fact could found the have essential elements of the beyond crime a reasonable Bauer, doubt. 15. This Court noted in ¶ State v. Brown *6 453, 457, 281, 284, Mont. familiar that this “gives standard full play responsibility of the trier of fact fairly to resolve testimony, conflicts in the weigh evidence, to the and to draw reasonable inferences from basic facts to ultimate facts.” endangerment The criminal charge upon which Porter was pertained convicted to his regarding conduct Randy Hill and his family. jury testimony heard at Randy trial from both and his wife Joyce Randy Hill. Joyce campsite were at the when Porter and his engaged brother Jeff physical in a fight. They were both aware that Porter drunk possession was and in Joyce of a rifle. testified that she frightened by was behavior, pleaded and had Willoughby with go up not to speak the hill to Randy, Joyce, with Porter. and the other campers heard approximately gunshots, five and watched as Willoughby returned to campsite the with wounds on his face and Randy lower back. testified that Porter later reappeared at the campsite and told him that he had “beaded down” on all people around campfire the Randy with his rifle. further that testified understood the phrase “beaded down” to mean “take Randy aim.” also informed jury that Porter’s frightened him, statement had and that he was sleep unable to until police officers arrived at campground. At case, the close of the State’s Porter moved for a directed verdict
on endangerment the criminal charges against him. The District Court motion, denied this noting regard with to Porter’s statement Randy to you Hill: “If give statement, credence to the just [Porter] then trigger finger away possibly from killing someone or at trigger least a pull away, and he such, was dead drunk at the time.” As the District conduct, Court found that “beading” of his rifle on human firing, reckless angry, prior and after intoxicated and targets, while crime of criminal evidence of the constituted sufficient jury question. present to conclusion, Porter contends Court’s Despite the District rifle, on his or safety was off prove did not the State
because trigger he “beaded down” actually on the when finger was that Porter’s found that there was jury could not have campers, a reasonable on the endangerment. a conviction of support sufficient evidence specifically proven may not have disagree. Although the State We Porter jury to infer them. facts, certainly possible for the it was above five times while discharged approximately his rifle the hill and sat on It campsite below. was campers sat at Randy, Joyce, and the other that Porter for the to assume not unreasonable therefore down” on that same rifle when he “beaded discharging capable of of one witness Moreover, the direct evidence later. campers moments any fact. Section proof sufficient for to full credit is is entitled who admitted he had “beaded Randy that Porter 26-1-301, MCA. testified his rifle. campfire around the with campers sitting on all of the down” a rational trier upon existed evidence hold that sufficient We high probability Porter was aware of found that fact could have or serious risk of death cause a substantial his conduct would 18, 1998. family July and his injury Randy Hill bodily motion denying Porter’s did not err in Accordingly, the District Court directed verdict. for a
ISSUE effective assistance right denied Was mistrial? to move for a failure by defense counsel’s counsel relief, alleged his amended In *7 of counsel. effective assistance right denied that prospective members ofthe that contended because Specifically, Porter shackles, his handcuffs, leg irons, and waist him in jury witnessed found District Court a mistrial. The moved for attorney should have to these response for a mistrial failure to move defense counsel’s claim. error, Porter’s and dismissed harmless to be circumstances petition post- for dismissal of his Court’s the District appeals issue. regard to this relief with conviction despite Court noted claim, the District rejecting In Porter’s shackles him in waist jury witnessed Porter’s contention offered to substantiate were irons, or affidavits no witnesses leg at jurors who testified the four fact, three of claim. In Porter’s 157 hearing petition on Porter’s for relief had no appearing recollection of Porter leg before them in waist shackles or irons, juror and the fourth was uncertain. On the of this basis testimony, the District Court found only by that Porter was restrained during handcuffs appearance the jury panel. Accordingly, before handcuffs are the sole form of restraint evaluating we will consider in this issue. Hagen, 190, 17, In State v. 2002 MT 117, 17, 311 Mont. ¶ ¶ 885, 17,
P.3d we noted petitioner seeking that “a ¶ to reverse a district court’s petition postconviction denial of a relief based on a claim of ineffective assistance of counsel heavy bears a burden.” To assess a claim of counsel, ineffective assistance of both on direct appeal and in post-conviction proceedings, this Court applies two-prong test from Washington (1984), Strickland v. 668, 446 U.S. 104 S.Ct.
L.Ed.2d 674. The Strickland test requires the defendant to “show that his counsel's performance was deficient and that the deficient performance prejudiced the deprived defense and the defendant of a fair State, trial.” Dawson v. 219, 20, 301 2000 MT 135, 20, 10 ¶ Mont. ¶ P.3d 20. This Court has ¶ further noted that: “Pursuant Strickland, a defendant alleging ineffective assistance of counsel must demonstrate there is a probability that, reasonable but for counsel’s unprofessional errors, the result of proceeding would have Dawson, been different.” 20. ¶ At the hearing post-conviction relief,
defense counsel testified that Porter inwas handcuffs when he entered the courtroom. He further testified that no other restraining devices placed were on Porter. Defense counsel testified that he requested the handcuffs be removed from wrists, and that his request was promptly granted. Finally, defense counsel although noted that prospective jurors may have been in the courtroom when Porter initially handcuffs, entered in Porter’s handcuffs were removed before jury was seated in the questioned box. When about his failure to move for a mistrial in response jury’s possible observation of restraints, Porter in defense counsel stated that “the outcome cases that I had seen is prejudice there was no to be found be[ing] [in] seated in front jury wearing of a handcuffs.” asserts that defense counsel’s failure to move for a mistrial ignorance stemmed from informed, rather than professional deliberation, jury’s as the observation of him in restraints inherently prejudicial. similar disagree. We This Court addressed a situation in State v. Baugh (1977), In 779.
158
handcuffs,
to trial in
which were
defendant
escorted
Baugh, the
was
Baugh,
trial
jury
the
before the
commenced.
then unlocked in front of
jury’s obvious
458,
Despite
at 780.
the
Mont. at
571 P.2d
174
restraints,
“right to
we noted that the
of the defendant
observation
right to be
during
need
be extended to the
trial
not
be free of shackles
the
and forth between
being taken back
free of shackles while
462-63,
782-
571 P.2d at
jail.” Baugh, 174 Mont. at
courthouse and the
Baugh
defendant
was
concluded that
the
83. This Court
handcuffs,
“a defendant
is
him in
by
jury’s
the
view of
prejudiced
solely
to a mistrial
because
trial and is not entitled
not denied fair
by jury
inadvertently
seen in handcuffs
momentarily and
463,
at
Porter invites
(9th
Rhoden,
Circuit Court
the Ninth
1999),
F.3d 633. In
Cir.
when a
warranted
relief was
that habeas
Appeals concluded
jurors.
courtroom was visible
shackling in the
defendant’s
the defendant’s
held that
The Rhoden Court
Rhoden,
defendant was
jurors,
only
group
potential
handcuffs for
moments in front of
Furthermore,
again
before the
in restraints.
appeared
never
shackling
defendant’s
was not
Rhoden Court noted
when a
actually
trial,
shackling
jury during
observed
such
amounted to
Rhoden,
harmless
¶32 Baugh, Schatz, and conclude has Pendergrass, in we that Porter failed any establish a prejudice momentary to result observation of prospective prior in by jurors him handcuffs to the commencement of Thus, attorney of trial. the failure Porter’s to move mistrial did not constitute ineffective counsel. assistance of foregoing reasons, For the judgment the of the District Court is ¶33 affirmed. GRAY,
CHIEF JUSTICE JUSTICES NELSON and LEAPHART concur.
JUSTICE specially TRIEWEILER concurs. I majority’s defendant, concur the with conclusion that if the Porter, pointed people consumption Steven loaded rifle at of a substantial of capability discharging it, amount alcohol and had the of knowingly engaged he in conduct that created a risk of substantial bodily injury death or in 45-5-207(1), serious to others violation of § (1997). that, MCA I concur also based on the evidence and reasonable inferences evidence, proven that could be drawn from the the has State bare necessary the minimum to those facts. establish However, not agree majority I do with all that is said the in Opinion and it is important point think out case is what this about. by The issue raised Porter is appeal simply on whether there was jury
sufficient for the evidence to infer that he a substantial created of bodily injury Randy risk death or serious Hill Joyce and their when, children his pointing him, rifle at them according there safety was no the evidence that mechanism had been or that released had finger trigger. agree that, general he his on the I based on his behavior, previous altercations, prior discharge his and his repeated his weapon, safety of could infer that the had mechanism been pointed family released and that he the rifle at the Hill with the capability discharging of it. However, did not endangerment Porter commit criminal when he
previously discharged weapon his and the distinctions between his discharged when weapon examples conduct his Justice Leaphart’s concurring Opinion in State v. Lambert misleading and
231, 929 P.2d are both irrelevant. a distinction between the innocent majority Opinion makes example and Porter’s conduct Leaphart’s described in Justice behavior night angry his by stating that Porter shot rifle at time while illegal, discharge intoxicated and that the was in violation 61-8- county road MCA because Porter was either or near disagree any he shot rifle. I that there is distinction when his between and the conduct described Justice Porter’s conduct innocent endangerment Opinion that is relevant to the criminal Leaphart’s basis, discharge weapon his or could statute or for, family. his of the Hill have been basis away discharged weapon from All of the evidence was that Porter campground. importantly, discharge weapon of his More colloquy That is clear from the was not basis for conviction. engaged among counsel and the District Court while counsel’s argued. example, For judgment motion for as matter law there pointed counsel out that was no evidence when family, ever his rifle toward the Hill the court stated: fired no, being opposite fired the Actually, The Court: it was-it was way. *10 only testimony gun
The court is that the was fired the before the Willoughby very and was opposite campers, direction from the that, physical no to contradict clear about there’s evidence campers anybody being on that. And there’s no evidence of the or road, that side of the and the list of victims were all this side the he fired-this road, of the there’s no evidence that shots that so endangered reality. He could the physical is a matter of have campers, right. recognized discharge The that it was not the District Court Randy anyone the fact that he told Hill
weapon endangered which but court pointed weapon he at them. The stated: that the there, you shooting, a if not for but may question I think have anywhere near only he didn’t shoot if-because the evidence was out, he’d have camp. testimony things for the to have laid the And to get a satellite to where the to sort of had to ricochet off of back testimony in fact-if was people guess But I if he did there were. under sighting people, was in on those that he said that he got maybe so circumstances, you’ve jury question, then I think testimony. portion that of Hill’s we need look at point the guess my I that inclination at this is to dismiss assault endangerment charges. I charges and with the think at proceed jury questions may there’s there. I think there not be least some them, beading he that down on if hadn’t made statement about I’m that he who he said on. not sure limited he beaded down hype. sad that a lot of Since it probably fact is that was was night, the the maybe people middle of there was some who thought can he fired I’m not sure how much he bead in the below. by light, saying that, night campfire by middle of the the but it’s doing up the best evidence what he was there. is clear the and from It from evidence the District Court’s it decide
characterization of the evidence when was asked to whether support charge was evidence there sufficient of criminal endangerment convicted, that which the conviction was completely braggadocio. based on Porter’s upon drunken It based middle pointed Porter’s statement his rifle at in the campers night consumption beverages of the after substantial of alcoholic repeated discharge However, prior prior discharge after ofhis rifle. of his did rifle not form basis for Porter’s of criminal conviction majority’s and the discussion at 16 and 17 simply ¶¶ prior case holding confuses issue in this and our in Lambert. Finally, reviewing testimony jurors after who were regarding appearance called witnesses courtroom wearing chains, agree prejudice while handcuffs or has I not been However, prejudice practically impossible established. is to establish. juror going admit, finding No is guilty defendant committing felony others, or endangered which that his her verdict was influenced appearance the defendant’s in the courtroom in handcuffs or chains. It is our precedent prior evident from and the cases of 9th Circuit Court of Appeals that the resolution in each heavily dependent case is on its own facts. Because the result is never a forgone conclusion, important it is law enforcement and prosecutors jeopardize by carelessly bringing future convictions jury, briefly, wearing defendants in front of a even handcuffs, leg while irons, security or other devices infer that the defendant is a individual, dangerous absent compelling security reasons. The *11 anything clear, standard under these circumstances is but and the best policy being would the necessity be to avoid of this issue raised in future. reasons, I specially majority Opinion. For these in the concur