*1 MONTANA, STATE OF Respondent, Plaintiff v. Appellant. COATES, JAMES D. Defendant No. 89-314. Dec.
Submitted Briefs 1989. Decided Feb. 1990. *2 Elison, Hardin, appellant. Martin John for and defendant Gen., Racicot, Gen., Anders, Atty. Atty. Marc He- Jennifer Asst. lena, Missoula, III, Deschamps, Betty Wing, Deputy, Robert L. for plaintiff respondent. Opinion
JUSTICE HARRISON delivered the of the Court. District, appeals James Coates an order of the Fourth Judicial post- Montana, petition for County, denying Missoula Coates’ conviction relief. We affirm.
Appellant raises three issues for review: appellant evidentiary hearing petition 1. for Was on his denied post-conviction relief? hearing appellant hearing?
2. fair Was the received a full and finding appellant 3. Did the Court err in had not been District denying denied effective of counsel and thus err assistance petition post-conviction for relief? trial,
Following jury appellant four counts of convicted of felony trial, May repre- theft on 1987. Bernard J. Goldman At appellant. appeal sented Mr. Goldman also handled Mr. Coates’ this Court. 2, 1988, sec.46-21-201, September MCA, pursuant appel-
On lant’s new counsel filed a relief that al- leged appellant was denied assistance of counsel at effective Specifically, appellant eight alleged cited errors committed parties Goldman. The filed briefs the District Court held a During hearing, appellant on December presented a witness his behalf and himself. The testified State deputy county called as attorney prosecuted a witness the who appellant.
At the hearing, Judge end of the the District added to the record regarding during appel- observations Mr. Goldman’s conduct lant’s trial. objected Neither nor the State to the Judge’s Judge questions. comments both counsel asked the On *3 January 13, 1989, findings the District Court issued fact and con- denying request clusions of appellant’s post-conviction law for relief. The alleged District Court found that errors were decisions, the lawyer main tactical not have another could ob- result, tained a ineffectively better and that Mr. Goldman had represented appellant.
Appellant granting contends that in not the District Court erred appellant evidentiary proof hearing present regarding in which to allegations Appellant’s argu- of ineffective of counsel. assistance 46-21-201, MCA, proce- ment belies the record. Section details provides in relating petition post-conviction dure a for relief part as follows: Proceedings
“46-21-201. petition. on the “(1) petition Unless of the case con- files and records clusively relief, petitioner show the court entitled to no county attorney shall upon cause notice thereof to be served county attorney place gen- in which the took and the conviction 334
eral responsive petition. and order them to pleading file a to the Following responsive may its pleading, review of the the court dis- petition miss the as a matter of law for failure to state a claim for may thereon, grant prompt hearing issue, relief or it determine the and make respect of fact and conclusions with thereto. “(2) may proof affidavits, by depositions, The court receive oral testimony, or may other evidence. In its discretion the court order petitioner brought hearing.” before the court for the granted appellant
The District hearing Court as outlined sec. 46-21-201(1), MCA, and received evidence the form of oral testi- mony plainly contemplates and exhibits. The statute the hear- ing post-conviction petition on a will be to determine the issues petition. Nothing supports appellant’s raised in the record ar- gument hearing evidentiary hearing. held was not such an reject appellant’s argument. We
II Appellant alleges that him give the District Court failed to proper hearing ignored procedure because it the rules of civil improper during disagree. made hearing. comments We
A relief civil in nature rather (Mont. 1981), [_Mont._,] than criminal. Coleman v. State 624, 627, St.Rep. 1352, However, 633 P.2d “district courts strictly are not procedure” post- bound all the rules civil Perry (Mont. 1988), State v. conviction hearings. relief Mont. [232 455,] 268, 276, Rep. neither 45 St. 1201. As any specific cites rules that the District Court violated nor cites authority in support argument, reject of his we his contention. We hold that procedures the District Court followed the established 46-21-201, sec. MCA.
Additionally, appellant argues hearing fair that he did not receive a Judge prejudicial because the end of District remarks at the part Judge. indicated bias on the of the Judge’s con- comments related to his of Mr. Goldman’s observations appellant’s inquiry Judge’s duct of trial. The critical is whether the Perry, deprived appellant hearing. remarks of a full and fair *4 pre- P.2d at 275. We do not find that his remarks reflect bias appellant hearing. vented receiving from a full and fair Appellant generalizations. His ar argument frames his bias gument appears his obser- Judge to be articulated that because the
335 regarding Judge vations the Goldman’s trial conduct that Judge’s biased. In other words that the remarks indicate unwill- ingness inability impartially appellant’s or consider evidence that ineffectively However, represented him. Goldman the mere fact not, more, Judge the articulated his observations does without appellant argument constitute bias and has not buttressed his with anything specific. post-conviction
Petitions for
relief are directed to either this Court
or
presiding
judge.
specifies
pre-
to the
The
district court
statute
siding
precisely
district
with the
because that
familiar
underlying
By
pe-
directing
criminal case.
relief
presiding
tition to the
judge,
district
who is most familiar
opportunity
any
the conduct of the trial has the
to correct
er-
Coleman,
rors
during
occurred
tried. See
In the Judge’s any instant remarks did not reflect unwill- ingness appellant’s regarding consider evidence ineffective assis- tance counsel. These remarks came at end of the after all presented. appellant evidence had allege been does not Judge any improper presented parties remarks as the their case appellant nor does allege judge improperly excluded well, appellant evidence argue offered. As does personal that the remarks indicated bias toward either Mr. Goldman appellant. Additionally, Judge’s observations mirrored the testimony prosecuting attorney of the appellant’s at trial. Musgrove (1980),
In State v. contrast to the case at bar stands Mont. judge’s where we found that the trial com- bias, ments indicated or an unwillingness to consider evidence. Musgrove, day appear the defendant had at failed to trial on the closing arguments. company’s The trial court ordered the insurance $50,000 Shortly bond forfeited. returned thereafter the defendant voluntarily and was convicted and sentenced.
The insurance company trial an order dis- moved the court for charging the the defendant’s grounds bond forfeiture on the Although mental appear condition excused failure to court, $25,000 hearing, after forfei- discharge did of the bond *5 ture, part trial company appealed alleging in that the insurance mental improperly of defendant’s had excluded evidence improperly excluded condition. had We found that the improperly evidence of the mental condition as well as defendant’s following of mind with the commented on the defendant’s state remarks: my Well, Delaney, in
“THE
there isn’t
doubt
COURT:
particular
presided on the trial that at that
mind as the
who
guilty
him
be-
Musgrove
jury
going
was
to find
time Mr.
knew the
In-
testimony
in that direction and the
cause the
was so obvious
in
direction.
so obvious
structions settled
the Court
[sic]
happen and know that be-
going
I know that
this was
he knew
day.
in
up
There is no doubt
cause of
he failed to show the next
my
upset. I think I would have been.”
mind that he was
Musgrove,
statements indi-
712. We found that those
610 P.2d at
effectively denying
the insurance com-
cated “bias which resulted
exon-
pany
opportunity
of excuse
order to
to establish its case
Musgrove,
also
As mentioned we do not discern The Dis ingness appellant’s evidence the instant case. consider required to do if he Judge hearing which he is not trict scheduled a 46-21-201(1), party Each MCA. finds the meritless. Section issues, party presented evidence thoroughly and each briefed the testi all hearing. Judge stated that he had considered he wrote de mony, making his decision and evidence and briefs directly dealt findings of law that tailed of fact and conclusions Judge’s Moreover, say appellant’s that the contentions. we cannot We hold supported decision is not evidence. substantial deprive appellant of Judge’s and did not remarks did reflect bias hearing. a full and fair
Ill
relief is
of
The standard of review for denial
conclusions
supports
evidence
whether substantial
355,
351,
(1979),
597
State
182 Mont.
court. Yother v.
the district
failing
79,
Court erred
Appellant argues
the District
P.2d
82.
disagree.
We
counsel.
to find that Mr. Goldman was an ineffective
claims,
evaluating
this
ineffective assistance of counsel
Court
(1984),
two-part
Washington
utilizes a
in Strickland v.
test set forth
668,
2052,
First,
per-
466 U.S.
104 S.Ct.
674.
80 L.Ed.2d
counsel’s
performance,
formance must
this
be deficient. To assess deficient
“
employs
‘reasonably
Court
effective assistance’ test whether
range
competence
defendant’s
de-
counsel acted within
(Citation omitted.)”
attorneys
manded
State v.
criminal cases.
(1986),
174, 178,
Second,
Elliott
221 Mont.
717 P.2d
coun-
performance
prejudiced
sel’s deficient
must have so
the defendant
deprive
(1986),
as to
v.
of a fair
State
Leavens
defendant
473, 475,
evaluating
Mont.
237. The standard for
prejudice
probability
is whether a reasonable
exists that but
performance,
counsel’s deficient
the trial’s outcome would have been
*6
Leavens,
However,
different.
evaluating
lowing specific eight by errors Mr. Goldman:
1. object Failure to by to the use of statements defendant prior reading to warnings. Miranda defendant his
2. Opening the testimony prior door to of a conviction.
3. suppress Failure to evidence seized from the back of defendant’s probable vehicle challenging cause of the search warrant. 4. necessary Failure obtain witnesses for his defense. Improper preparation 5. for trial.
6. to properly question Failure witnesses.
7. appeal Failure to certain issues.
8. Mr. drug ability adversely Goldman’s to re- affecting abuse his present the defendant. mentioned,
As thoroughly all these both issues were briefed parties prior to the hearing. 2,
Regarding allegations 1, 3, 7, and the District Court’s indicate found Mr. issues to be Goldman’s decisions on these concur, upon tactical. The District Court found and review we likely defendant prevailed trying not have to exclude seized, suppressing defendant’s statements either or in the evidence pretrial at the proceeding appeal. noted on The District Court identity primary that Mr. concern related during pretrial pressed informer and vigor that issue with proceedings appeal. and on well, trial tactics that that it was
As the District Court concluded appellant examination whether ask on direct led Mr. Goldman to On a business license. background check to have had to have a door,” “opened cross-examination, had the defense because of his appellant the fact attorney to elicit from prosecuting was able However, attorney prosecuting testi- as the prior theft conviction. appel- fied, reference to caught Goldman’s brief had she not had an up, would have background followed Mr. Goldman lant’s supports closing argument. The evidence excellent foundation for a 1, 2, 3, allegations on that Mr. Goldman’s decisions conclusion guess trial tactics. not second were trial tactics and we will and 7 necessary wit two allegation failure to obtain As to number exactly nesses, how the absence not demonstrate does prejudiced him. The record discloses these witnesses ap County Mr. Goldman subpoenaed the two witnesses to no avail. any at so parently could not be located knew that these witnesses Fur part subpoena have been futile. tempt on his them would testimony ther, exactly what appellant’s argument specify does not the de have assisted given that would these witnesses would have argument fails. appellant’s showing prejudice, fense. Without a 469, 475-476, (1983), State v. Henricks 206 Mont. 6, the record contains substantial
Regarding allegations 5 and prepared that, whole, for trial Mr. Goldman evidence attorney testified prosecuting properly questioned witnesses. effectively aggressively questioned witnesses that Mr. Goldman testified that brought case. She out the defects the State’s and that familiarity the case questions with the facts of reflected his to establish that he needed questioning elicited the information *7 should Goldman appellant argues that Mr. Although the defense. ex establish appellant again fails to questions, have asked certain materially assisted actly questions would have how those defense. specific evi no
Finally, allegation record discloses as to public abuse, has become dence that Mr. Goldman’s which cocaine incompetent. appellant’s trial knowledge, rendered his conduct of al back to relates appellant’s argument of on this issue Most found had been allegations If leged already errors discussed. those counsel, infer might then one reflect ineffective assistance However, absent contributing factor. may cocaine have been a abuse affected in the trial that any specific errors or conduct identified outcome, trial’s to the is- Goldman’s cocaine abuse irrelevant sue of assistance ineffective of counsel. summary, supports the Dis- substantial evidence the record lawyer
trict Court’s have ob- conclusion that another would not appellant considering tained a more for amount favorable result presented against appellant. Appellant evidence State has performance failed to or establish that was deficient any alleged prejudiced of his the trial. errors the outcome of Affirmed. HUNT,
CHIEF JUSTICE TURNAGE and JUSTICES McDON- OUGH, WEBER and BARZ concur. SHEEHY,
JUSTICE dissenting: provided It in Rule Montana Rules Evidence: may “The presiding testify at the that trial as a objection witness. No preserve point” need be made in order added.) (Emphasis statements made post district for fact,
conviction relief were although statements of he an un- was Moreover, sworn witness. the district founded his fact on based his own observations hearing. made at the
This is what occurred hearing, when the matter was before the District Court:
“THE you any COURT: Do other to call? witnesses “MS. WING: No witnesses.
“THE COURT: Rebuttal witnesses?
“MR. ELISON: None. Counsel,
“THE COURT: me make for the let some observations record.
“Obviously I expert person am not an or even an amateur how However, they acts when are under I did the influence of cocaine. make these observations of when he was here dur- Bernie Goldman ing the trial. any mumbling
“I disruptive didn’t see that he had shakes or speech. He good eye swings had contact. didn’t see mood very angry, sense that one minute he would be the next euphoric. on, would be prosecution When the were witnesses self, many years, his usual how abrasive as he that’s has been but cases, he does his generally good with some success some- times not. *8 many
“I noticed between the Defendant and discussions my trial, point I it’s during Goldman the but should out that been trial, experience goes his with Goldman when he to he runs Bernie policy own show that it to be his he does not allow and seems that going run his run the He decides he is to clients to kind of how proceeds the case then he from there. and my Goldman, experience seemed to be “It’s also been with Mr. and — here, practice quite his is will he is about his trial that he clever that, example, tactics were and tactics here consistent with attempted very briefly passing when he to that just mention the fact — background get to or Defendant had be had a check checked in order have a I am he have referred to this to license. sure would course, and, as closing argument the State seized on that opening some to Defendant’s back- regards information ground. alert, slipped If been that have the State had not would through jury impression and the would have been left with the brought argument final Defendant was out Goldman’s that the model as is citizen far as his business license concerned. gist primarily
“It to me case he was seemed that pre- pressed and at all the concerned with informer he that hard obviously appeal. got I proceedings pressed and it on And — impression I will use it that he knew case was and trouble,’ quotes, ‘in as as the and the state- far search concerned may ments have the Defendant. that been conclusion, Counsel, opinion “And in I re- of the that another am lawyer. I sult if he would not have occurred would had another think him a lawyer that another have been able obtain not so possible, more is but I don’t think under favorable result. It against amount of the Defendant evidence that the State marshaled in this case. I record, just,
“Those that are for the those are the observations made while we had the trial. case
“I have in the examined the briefs that have been submitted trial, feel not presented as well as here at the and do the evidence many that Goldman was an ineffective counsel. His decisions agree may may with. cases were tactical decisions we — being not approach approach “I think he took the that to went spend of time issues were obvious losers lot — thought press ahead where he into on the one issue — identify require require if get knew the State to he could me to completely. And informer, collapse that the State’s case would gist beginning seemed to be the of his then case during trial, credibility to attack the of the State’s witnesses during the trial itself. Counsel,
“My conclusion, your motion should be denied so ordered. *9 Honor, might inquire, you “MS. WING: Your I have made some you observations if about Goldman and I wonder would mind putting something your years experience on the of of record practiced him long you. or how he has front of — County Attorney “THE I I COURT: have as had have several against years cases him eight and his father and now trials involv- ing successful, Mr. Goldman. And he I some of which has been but anything didn’t see in his different behavior and this trial actions always from I way other ones. agree don’t with the that Mr. cases, you Goldman tries his argue but can’t with success and he has my successes, very good court several this but was not one of them.
“MR. Regarding Supreme ELISON: opinion, long Court how I get you? do have going that to Or Tomorrow? is that not to bear point? on the case at this Well,
“THE COURT: opinion. I have their — Oh, no, “MR. okay ELISON: I mean the one which Bernie was disbarred. —
“THE COURT: Oh. I have a sense of is I what that and testified no, it was not I this case. allegations was aware some against him I pretty good and so a have idea what circumstances largely use, said, Counsel, were. It’s I cocaine but like I have my expertise they to admit that on how behave in cocaine users and — nonexistent, court is he out but didn’t seem he didn’t to be seem of the norm for Bernie. And not I would there were occasions where — talk to him he spaced like out would be would be or not understanding you what I saying, am know. And so seemed to be he tracking say I well at the trial and some tactical all can he made decisions and some worked and some didn’t work.
“MR. I suppose I on expert ELISON: witness could have used an what an addict on cocaine would act like? — Well,
“THE COURT: tell me “MR. I no- particularly ELISON: think don’t there would be — — thing. mostly ticeable going going It’s it’s a be it is to be — speed, upper actually so it’s an him more it would make might productive occasions, make him more also kind of but it is on forget things. He will think he a mind scrambler and so he will successfully doing. something really, really isn’t He doing he probably forget happened day will has two before. And what leaves, his think- get sleep much and it will when he won’t throw ing off, suppose I if are tactical errors or errors but there no — you transcript that can see — well, Well, you say I that he know “THE COURT: wouldn’t — check, not thing background Coates’ that’s about maneuver, Goldman, say, I hate to but error. That’s a classic Bernie thing through and he slipped it is maneuver almost and he up picked just through quickly the State not on very ran it and had that, argument. outstanding closing for a have base had an I going say am That’s a classic So Bernie Goldman maneuver. by, County wrong might gotten it if the to do He have that. point Attorney it would would not attentive at have been frequently been in. his cases and he is And that’s how Bernie tries successful. So, words,
“MR. ELISON: it is not mistake? other pur- I “THE I it was COURT: think it was a mistake. think don’t poseful him part, quite frankly, Bernie’s because have seen do things my ruling, before. So Counsel. that’s *10 you appropriate reflecting my ruling? make
“Would an order WING: I “MS. will.” M.R.Evid., incompe- Rule District Court was
Because of the observations, unsworn, tent testify as a witness to to his sworn or as during of the the activities of for the defendant District counsel witness, a Court trial. If the Court intended to be should District proper procedure judge have in order been to call in district another to hear the relief. as point
The of fact a District Court made observations the judge by by the same witness is buttressed of fact appear observa- completely which to be the court’s own founded on tions. Witness:
“Findings Fact of being under the signs The court no of Mr. Goldman observed disruptive mumbling drugs. or or influence of There were no shakes in speech. swings good eye no He had contact. There were mood angry, the he would be very sense that would next one minute he be euphoric. testifying, he was his prosecution When were witnesses many years. style gen-
usual abrasive self as has has been for His erally good had some success and sometimes not. many
“2. Mr. during Goldman held with the discussions Defendant however, the trial. It experience, has been the Court’s that when trial, goes policy Bernie Goldman to he con- to it seems be his trols the case does not nm and allow his clients to experience
“3. It has been the court’s it is Mr. practice tactics, to be his clever with trial this case tactics example, attempted very briefly pass- were For consistent. ing background mention the fact that the Defendant had to a check in surely order to obtain a business license. He would have argument. referred to closing this If the State had not been alert, the slipped jury information would have on through and the impression would have been left with the was Defendant State, however, model citizen. The opening seized that as the tes- timony for regards information in background.” to the Defendant’s duty impartial of a conduct trial is illustrated following paragraph:
“The trial must strive in an to have trial conducted at- mosphere of impartiality. trying His conduct a case must be fair sides, to both and he may injure should refrain from remarks that litigant. He engage should not acting conduct which amounts to parties. as counsel for by one of Except where authorized stat- ute, it improper for a to assume the role of the witness in a him, being case tried doing before so constitutes reversible er- ror. great departure How from fairness to reversible error amounts is determined inquiry answer to the whether or fundamental prejudicial not was done plaintiff to the in error.” 191, Trial, 75 Am.Jur.2d sec. 87.
Rule 605 of upon the Montana its fed- Rules Evidence based Moore counterpart. eral points provides out that the rule an “auto- objection” matic require objection con- because an actual opponent front the objecting with a the result of choice allowing testimony, probable objecting, with the result excluding the testimony, price continuing but at the judge likely before a integrity to feel that his had been attacked *11 Practice, (2d 1976), Moore’s objector. para. Federal ed. 605.01 [3]. Moore dangers pointed
Two of having tes- out tify (1) at presiding the trial over rule on which he is are who will objections, normally ju- privilege claims of under and other matters control, (2) judge who will dicial in a bench trial testifies testimony in testimony light his own in the of other consider the case. bar, adopting findings the district of fact the case against ad-
weighed testimony his as the evidence own observations upon based of fact his own duced defendant and observations, testimony of the rejecting thus the evidence and defendant.
Moreover, a fact majority Court state as both District Opinion not end in their that a new trial for the defendant would speculation, proba- being different result. Aside from sheer considering weight fair have no ble future result of a trial should impartial fair before tribunal whether defendant receive a only upon proceedings. question former should decide we sen- post-conviction relief the defendant’s is whether subject upon ground alleged error tence is to collateral attack 46-21-101, corpus. MCA. available under a writ of habeas Section possibility grounds in a new trial Those do not include the will defendant be reconvicted. new foregoing,
For the reasons remand for a would judge. Nothing relief before district another preclude present appearing from as a witness then district observations, pertinent present which course would be the issues case. this