*1 92 MONTANA,
STATE OF Respondent, Plaintiff and HAMILTON, DARRYL Appellant. Defendant No. 05-648. 22, 2006. Submitted on Briefs November September Decided MT
2007
Mont. 92.
JUSTICE RICE Opinion delivered the of the Court. (Hamilton) Appellant Darryl ¶1 Hamilton appeals judgment from the of conviction and Eighth Court, sentence of the Judicial District County, Cascade convicting eight him of counts felony of incest. We affirm. We consider the following appeal:
¶2 issues on (1) Did ¶3 Hamilton’s trial counsel render ineffective assistance of by:
a. Failing promise to deliver on the in opening made statements testify? that Hamilton would Allowing
b. an officer to testify interviewing about his tactics in Hamilton and the victim?
c. Telling jury during closing argument they “probably [did attorney? not] like” Hamilton or his trial (2) Did the District Court err by granting request State’s psychosexual second evaluation? (3) Did the sentencing District Court err in eight Hamilton for incest, separate counts of which were all committed with the same victim over an of period extended time?
BACKGROUND on B.H. was born December Hamilton married B.H.’s mother, (Bobbie), 1991, Bobbie Hamilton becoming stepfather B.H.’s subsequently and Bobbie years was two old. Hamilton
when B.H. K.H., years thirteen old at the time of together: children who was two W.H., time of B.H. trial, years who was ten old at the trial. was sexually when she at the trial that Hamilton years fifteen old testified “many ending in 1997 and in June 2004. beginning abused her times” time, by looking at of this Hamilton abused B.H. her Over the course masturbated; rubbing genitals; genitals touching B.H.’s while B.H.; parts his on B.H.’s rubbing private oral sex on performing point ejaculation; performing genitals and anal area abuse, protested intercourse on B.H. When B.H. vaginal and anal sister, K.H., or sexually younger threatened to molest B.H.’s friends. B.H.’s something wrong suspected Bobbie was with On June towards B.H. When she asked B.H. about
regard to Hamilton’s actions it, her and confessed that she had been journal B.H. her mother gave day. Hamilton was arrested that same abused Hamilton. sexually Shaffer) (Detective Falls Police Shaffer with the Great Detective John that had occurred. interviewed B.H. about abuse Department felony incest, in eight counts of violation charged with 45-5-507, MCA. § Scolatti) (Dr. J. Scolatti submitted January In Dr. Michael *3 been referred to of Hamilton. Hamilton had a evaluation psychological Defender’s Office. The by County the Cascade Public Dr. Scolatti functioning,” psychological Hamilton’s “current evaluation addressed to of related true exploration of the and the issues dynamics case “[t]he dynamics “personality traits and allegations,” and Hamilton’s and false research.” relation to current sex offender in on separate counts incest eight A Hamilton of jury convicted from Dr. Thereafter, requested counsel 20, April May for Hamilton. On designation and tier a risk assessment Scolatti assessment, finding that his risk 5, 2005, Dr. Scolatti submitted He also 1 risk to reoffend.” designated [Low] a Tier “could be Hamilton to characteristics of sex he found “to be correlated found several factors reoffend.” who have a lower risk to offenders independent psychosexual a for an then filed motion The State already 24, 2005, Hamilton had been noting May evaluation on second, Scolatti, a evaluator, Dr. but that his chosen by evaluated changed necessary to due both evaluation was independent could be that Hamilton opinion Scolatti’s and Dr. circumstances granted Court re-offend. The District Tier 1 low risk to designated a compelled motion, May dated order State’s
95 second, psychosexual to a independent Hamilton submit to evaluation. (Dr. order, Dr. employed As result of this State Nina Wendt Wendt) to her provided conduct evaluation and with all necessary 1,2005, On Dr. documentation. June Wendt traveled to the County arranged meeting Cascade Detention Center where she had with Hamilton. Hamilton refused to submit compelling evaluation. The State then filed a motion for an order psychosexual evaluation, Hamilton to submit to the independent which granted. again participate the District Court to refused the evaluation. Dr. Wendt then reviewed reports, numerous statements, records, including psychosexual Dr. Scolatti’s evaluation, and concluded that at Hamilton was a Tier low-moderate risk to re-offend. Dr. Wendt noted that “[s]ince Mr. Hamilton did not actively participate process [the the assessment . .. assessment] is limited in its ability provide conclusive information.” The District Court sentenced on I through Counts VII years each, Montana State Prison for 100 and on Count VIII to years, Montana State for twenty years Prison with sixteen suspended. through Counts I concurrently, VII were ran with Count VIII to run consecutively through with Counts VII. Hamilton appeals. OF
STANDARD REVIEW This Court reviews claims of ineffective assistance of counsel de 193, 7, novo. v. Morgan, 509, 7, State 2003 MT ¶ ¶ 1047, 7. This Court legality only. ¶ reviews a criminal sentence for Bar-Jonah, State
P.3d 115. “On sentencing questions regarding statutory interpretation, we review the interpretation trial court’s law Bar-Jonah, determine whether isit correct.” on 115. When the issue appeal concerns whether the district court violated a defendant’s rights sentencing, constitutional at question is a matter of law which we review de novo determine whether the district court’s interpretation Bar-Jonah, of the law is correct.
DISCUSSION (1) Did Hamilton’s trial render ineffective *4 assistance of counsel? argues attorney Hamilton his that violated his federal and state (1)
rights to the effective of assistance counsel when he: failed to deliver Hamilton jury testify; on the to the promise himself would (2) testify veracity allowed a of detective about the the (3) victim; Hamilton and his defense counsel alleged “demeaned” closing in statements. this Court should refuse address The State reasoning behind arguments appeal, on direct as counsel’s
Hamilton’s
arguments, his
jury during opening
cross-
his statement
Shaffer,
during closing
of Detective
and his comment
examination
such,
not record-based. As
the State contends that
arguments are
postconviction
petition
raised in a
for
arguments
should be
argues that counsel’s actions did not fall
Alternatively,
relief.
the State
reasonableness,
any prejudice
objective
of
nor did
below an
standard
(1)
result,
testimony
jury they
told the
thereby
given that:
he made to
hear from Hamilton concerned the admissions
would
when the
Shaffer,
and the
heard these admissions
Detective
(2)
testified;
Shaffer did not vouch for the
detective
Detective
B.H.,
non-verbal
credibility
testify
of
nor did
that due to Hamilton’s
(3)
cues,
thereby
the statements counsel made
lying;
he was
hating him and
during
jury possibly
about
closing argument
could not decide the case
point
his
emphasized
the facts in evidence.
and rather had to base its decision on
on emotion
Constitution and the Sixth
II,
of the Montana
Article
Section
guarantee
person
of the United States Constitution
Amendment
reviewing claims of
of counsel. When
right to the effective assistance
counsel,
test
two-pronged
this Court uses the
ineffective assistance
668,
claim, first determine whether this Court must of counsel the ineffective assistance properly before us or whether pursuant relief petition in a pursued must claims be 338, 8, 303 Mont. 46-21-105(2), Dyfort, State v. MCA.” to § general rule is: 153, 8, [Wjhere are based on facts counsel claims ineffective assistance of in the direct case, they must be raised underlying of record
97 allegations conversely, where the ofineffective assistance appeal; from counsel cannot be documented the record underlying case, by petition those claims must be raised for postconviction relief. State, 8, 12,
Hagen 60, 12, v. 1999 MT 293 Mont. 973 P.2d ¶ ¶ ¶ 12. Court a This makes distinction between record-based and non- record-based claims of ineffective assistance of counsel. State v. Bateman, 281, 23, 280, 23, MT 2004 ¶ ¶ The test to determine whether an ineffective assistance claim is properly brought on direct appeal is whether the record contains the “why” took, take, as to answer counsel or failed to in providing action White, 58, 20, a defense. State 306 30 P.3d 18 Applying foregoing,we examine each of Hamilton’s allegations
in turn. Failing
a. to promise deliver on the in opening made statements that testify. Hamilton would fulfill failing that promise jury to testify he would constitutes ineffective assistance of counsel. Defense told the that it would hear from Hamilton himself about how some contact he had with his stepdaughter was accidental. However, when it came time testify, for Hamilton to defense counsel announced, elaboration, without that Hamilton would exercise his right constitutional to remain silent. Hamilton relies on numerous authority federal cases as argument for his that an ineffective assistance claim arises when defense counsel makes promises jury on attorney which the cannot deliver. that, although State contends counsel offered that Hamilton
was exercising silent, his constitutional right remain the record is why otherwise silent regarding testify Hamilton did not and thus this should be raised in a petition relief. Alternatively, the State asserts that there is strong presumption a strategy having testify counsel’s in not was sound and fell within range a broad of reasonable professional conduct. During of day settlement instructions at the end of the first trial, fifteen, the State offered proposed its instruction number
which stated: deciding testify,
In may whether or not to the Defendant failure, rely choose to on the state evidence and if any, prove beyond every of the State to a reasonable doubt charge against essential element of the him. right a criminal trial has constitutional
A Defendant in any from the fact that must not draw inference testify. You Further, you must neither discuss this testify. Defendant does not way. your any it to enter into deliberations permit matter nor discussion, following exchange place: took During hold, going to I assume he’s Gilligan]: [Mr. we’ll have but testifies, it be withdrawn. testify. If he will he doesn’t- [The Court]: If testify; right? not to Gilligan]: right This is the
[Mr. [Mr. Yeah. Thompson]: it. State will withdraw does, if he I’m sure the Gilligan]: So
[Mr. going jury [Hamilton] told the just [Mr. He Thompson]: *6 [testify]. through, right. guess I’d better follow Gilligan]: Yeah.
[Mr. though. I mean Well, gave, he there’s a statement Court]: [The testimony. his pass that can as Gilligan]: Can’t let that sit.
[Mr. a further is we can make Well, say given, let’s 15 Court]: [The necessary if then. record on this fine. Gilligan]: That’s
[Mr. Gilligan stated: testify, Mr. time for Hamilton to it came When exercise his constitutional Honor, time Mr. Hamilton will at this ‘Your [that his] constitutional testify He will not as to remain silent. right decision not On Hamilton’s the defense rests.” and with that right jury. gave fifteen to the Court instruction testify, record, an explanation do not find we Upon review of quotations, referenced Beyond the above testify. Hamilton’s failure behind thinking strategy or the defense counsel’s we do not know regarding speculate cannot testify, and we decision not to “why”Hamilton did silent as to the record is those reasons. Since ofcounsel ineffective assistance claim of dismiss Hamilton’s testify, we relief raising the claim in prejudice without proceedings. his tactics testify about Allowing an officer
b. the victim. interviewing Hamilton objecting for not ineffective counsel was argues that his Hamilton quasi- “unsupportable as Detective Shaffer’s to what describes from Hamilton’s extracting the truth testimony about expert Hamilton from Hamilton.” recognizing falsehoods stepdaughter “may Shaffer objected, then Detective attorney had that if his contends the actual details of testimony to the his limited have indeed attorney interview.” Hamilton asserts that his “could not have had a failing object reasonable tactical reason” for to Detective Shaffer’s testimony conducted, to the actual interviews he and that his counsel was ineffective for permitting inject the detective to his quasi-scientific opinions into the results of those interviews. again argues The State that the record is silent as to counsel’s
reasoning
Shaffer,
behind his
strategy
cross-examination
of Detective
and thus this issue cannot appropriately be raised on direct appeal.
Alternatively,
argues
strategy
the State
that the
did not fall below an
objective
reasonableness,
standard of
nor can
show that he
prejudiced.
was
The State contends that Detective Shaffer did not
vouch for B.H. and
“wholly
thus
issue is
inapplicable.”
Furthermore,
Hamilton,
regarding
alleges
State
that Detective
only
Shaffer
offered his observation of Hamilton’s behaviors and what
his
training
taught
behaviors,
him about
say
and he did not
lying
or
comment on
“veracity.”
his
The State
that, pursuant
Hendricks,
223,
to State
7, 317
2003 MT
Mont.
¶
strong
¶
“there is a
presumption
that counsel’s
performance was based on sound
strategy
trial
that falls within a wide
range of
professional
reasonable
conduct.”
A non-record
based act or omission by counsel can
include
object,
failure to
since
objections
“the use or non-use of
maybe purely
Webster,
tactical.” State v.
15, 107
P.3d
15. Counsel’s decision regarding
timing
and number of
objections lies within his tactical
White,
discretion.
16. Hamilton
to Hagen
cites
support
that claims of ineffective
*7
assistance
failing
object
to
to “vouching” testimony must be raised
on direct appeal. Hagen,
the
Hagen
defendant
in
argued that his trial counsel was ineffective
testimony
when he elicited
from a witness on cross-examination that vouched for the character of
one of the State’s primary
testimony
witnesses. The
given in that case
obviously record-based,
was
fully
we concluded that
it
since was
record,
set forth in the
it was appropriate
appeal. Hagen,
for direct
Here, Hamilton is arguing
that his counsel was ineffective for not
objecting
“vouching”
Shaffer,
testimony Detective
than
rather
eliciting
testimony,
record-based
as in Hagen.
objection
The lack of
omission,
act,
here was an
resulting
or failure to
in
any
the absence of
justification,
record-based
and, thus,
clearly
the challenge
falls within
the non-record-based rule. If the
explain why
record does not
counsel
object,
failed to
the matter
often
postconviction
is
best suited for
Germain,
2007 MT
336 Mont.
proceedings. See State v. St.
341, 335
162, 153
579;
591;
2006 MT
P.3d
Upshaw,
P.3d
State v.
c. attorney. or his [did like” Hamilton trial “probably not] telling ineffective argues that his counsel was Hamilton, him and they may that hate closing in his deliberating about the case. put aside this hatred when but reasoning does not disclose counsel’s contends that the record State deferred to and it should thus be closing argument, his behind that Alternatively, the State proceedings. relief credibility, as “tearing down” Hamilton’s counsel was not the defense that the should asserts, merely pointing out he but rather was emotions, this was neither on could not base its decision prejudicial. deficient nor stated, During closing argument, Hamilton’s
pertinent part, as follows: jury, you you like me. Bet gentlemen ofthe bet don’t
Ladies and you, told Judge But has even more. as don’t like Mr. Hamilton has Mr. Hamilton and what you might feel for this hatred you mind when your taken out of in this case has to be happened deliberate. you have analyze the evidence that is, you have
That on that your verdict stand base from that witness heard satisfaction, proven your has whether State evidence and eight doubt, guilty of these is reasonable beyond *8 counts incest. say go
You cannot into that room and I hate Hamilton and I lawyer, just guilty pleas get hate his let’s mark all out ofhere. crime, charged you Based on how the State need to has what year years, go year year, eight do is all and as to that each particular year, you satisfy yourself have to that there’s been evidence presented particular year as to this that a act of specific contact, instructions, your sexual as defined in has occurred. And you you if find a specific particular year, cannot act for that have guilty year. to find him not in that particular contends that his counsel’s “apparent strategy was put for the this hatred the charges individually” aside view attorneys charged [sic] and that approach emotionally “[t]he in this case cannot be considered a sound tactical decision.” we cannot undertake review of the merits of an ineffective assistance by surmising claim about strategy. counsel’s Because the record does clearly reveal defense counsel’s in strategy giving closing argument, it is inappropriate appeal. direct This issue should likewise be decided in a relief proceeding. by granting 2. Did the District Court err request the State’s
for a psychosexual second evaluation? argues granting that the District Court erred by request
State’s for a second psychosexual evaluation. He first asserts legal grounds there was no for the State to seek a second evaluation, statutory requirements. as the first evaluation met the Further, he participate asserts his refusal the second by evaluation Dr. Wendt factored higher into the risk assessment designation; by that the less favorable assessment was then cited imposing 120-year sentence; District Court as reason for and that the District psychosexual Court’s actions related to the second protect evaluation right did not not to incriminate himself. right against State that Hamilton’s self-incrimination was not implicated independent psychosexual Dr. Wendt’s given evaluation. The State contends that Hamilton’s refusal evaluation, participate in Dr. Wendt’s the District Court appropriately statements, reports, allowed Dr. Wendt to review the numerous records, evaluation, including psychosexual reaching Dr. Scolatti’s her re- conclusion that Hamilton was at a Tier low-moderate risk to offend, because, Dr. particularly explained, as Wendt some opinion information which Dr. Scolatti’s was based was Further, inaccurate. the District Court took both evaluations into sentencing when Hamilton. consideration *9 a evaluation set forth psychosexual The requirement ¶35 of one of an When a defendant has been convicted by statute. governed MCA, offenses, 46-18-111(1), requires that list of § enumerated sexual a evaluation and investigation psychosexual include pre-sentence the the least restrictive environment. for treatment in a recommendation MCA, 45-5-507, triggered Here, ofincest under § Hamilton’s conviction requirement: that psychosexual evaluation ofthe investigation must include
[T]he a recommendation as treatment defendant and environment, considering the in the least restrictive defendant community and the defendant’s presents defendant to the risk the by sex offender completed The evaluation must be needs .... ofthe sex offender treatment therapist who is a member Montana to the comparable acceptable has credentials association or evaluation industry. psychosexual department of labor office,the defense county attorney’s must be made available officer, sentencing and the parole attorney, probation the by the paid the evaluation must be judge. All costs related to defendant.... MCA, not, 46-18-111, by plain language, provide its Section does only evaluation only may be involved or that one one evaluator
that evaluation satisfying psychosexual report may be issued in indicating authority no that the and Hamilton submits requirement, circumstances may order a second evaluation when Court not District Here, the State or necessary appropriate. make additional evaluation had not been first, assessment concerned, that Dr. Scolatti’s of the factors conducted, that some and also concerned independently reaching his risk assessment by Dr. Scolatti upon relied Dr. Wendt during sentencing hearing, changed. Specifically, Hamilton did not that although reported Dr. Scolatti testified that Also, Hamilton otherwise. she had found anger problems, have diverse Dr. characterized married, and, additionally, Dr. Wendt longer was no she differently in that victim” factor violence to the “[n]o Scolatti’s injury. vaginal and anal for B.H.’s accounted 46-18-111, law, conclude, Thus, as a matter of based § we prohibited. not MCA, evaluation is psychosexual a second circumstances, Court the District Further, under the conclude that we an because ordering a second evaluation its discretion did abuse needed. information was accurate evaluation based on updated Hamilton’s self-incrimination do we find Neither persuasive. He imposition contends of a second evaluation because, his right violated to remain silent after he refused to participate, participate that “refusal in the second evaluation was factored into the risk higher designation.” assessment although Dr. report Wendt noted in her that Hamilton had not participated, participation that lack of was not accounted or used in Thus, her determination Hamilton’s risk level. Hamilton’s self- incrimination right implicated process. was not in this 3. Did the District Court err in sentencing Hamilton for eight separate incest, counts of which were all committed with the same victim over an extended period of time? District Court erred in imposing
multiple sentences because imposition separate sentences for “each of arbitrarily defined counts” violates the jeopardy double provisions of II, Mont. Const. art. 46-11-410, § § MCA. ongoing asserts that his crime of sexual assault must be *10 single considered as a offense involving a “continuous course of conduct” for purposes sentencing. of The State that the District Court’s sentence of Hamilton
on each count of incest did not violate the constitutional or statutory (1) double jeopardy provision because: there were separate acts for year (2) each upon which to separate offense; base a the State has charging discretion and had the burden of proving statutory (3) elements for charged; each crime acquittal an or conviction on charges one of the of incest would not have barred prosecution any on of the charges. other
¶42 Hamilton offers the holdings Weaver, in State 167, 290 v. 1998MT 58, Harris, Mont. 964 P.2d and State v. 306 Mont. in support of his that his actions constituted a “continuous course of conduct” that must be viewed as a single offense for which a single imposed. sentence must be held in We Weaver, Harris, as we explained in that a specific unanimity instruction is when required different acts charged criminal are in one count genuine which raise “a possibility jurors ... that different will a conclude disparate illegal defendant committed acts subsumed under Harris, single count.” 12. We reversed Weaver’s conviction for given specific failure to a unanimity Weaver, instruction. 40. We also recognized a “continuous exception course of conduct” rule to this where “the criminal acts are so closely connected that form they part transaction, of Harris, one and the same and thus one offense.” 12 35). (quoting Weaver, Harris, In the defendant was likewise charged conduct count; case, charge alleged incest. The single with a period. adopted daughter eight-year over an between Harris and his unanimity a specific claim that he was entitled to rejected We Harris’s possibility concluding genuine created no instruction, actions closely connected as his actions were “so confusion because fell continuous, running offense”which single, viewed as properly be Harris, exception to the rule. into the Weaver Here, however, single charged with a offense we are faced unanimity was specific of whether a instruction question offenses, each multiple Hamilton with necessary. charged The State specific years. acts which occurred within offense based discrete charged may have been underlying the offenses While the conduct years, it nonetheless several similar and have continued over and the State separate offenses under the statute constituted 46-11-404(1), separately. charge the offenses Section discretion MCA, provides: of the same offense or different statements
Two or more offenses
separate
in a
charging
in the
document
may
charged
be
same
whether felonies
count,
charged,
if the offenses
alternatively,
or
or
both,
or similar character
or
are of
same
or misdemeanors
together
connected
or
transactions
are based on the same
plan.
or
constituting part of common scheme
141, 388
(1963), the
Boe,
P.2d 372
defendant
In State
“wilfully,
twenty-two separate
rape,
acts of
charged with
was
act of
unlawfully,
feloniously” accomplishing an
sexual
wrongfully,
fifteen-year-old
between November
with a
female
intercourse
counts,
nine of the
Boe
convicted on
to March
Boe, 143
at
on
multiple
appeal.
convictions
challenged his
to make
Legislature
Noting
power
“[t]he
Hamilton with 2002, 2001, 1998, 1999, 2000, 1997, years B.H. in year year; from continued 2003, Hamilton’s actions and 2004. separate basis for a year formed the however, the each act within not have affected charge one would Acquittal on charge of incest. validity charges. prosecute, of the other The decision whether to offense, Schmalz, prosecutor’s for lies in the discretion. State v. what Therefore, 290 Mont. 964 P.2d 9.¶ joined charge properly by separate each in the information was count and there was no did jeopardy. violation double District Court sentencing eight separate not err in Hamilton for the counts of incest. Affirmed. GRAY, NELSON, LEAPHART, CHIEF JUSTICE JUSTICES COTTER MORRIS concur.
JUSTICE concurring dissenting. WARNER agree I with the judgment Court that should be affirmed. However, I dissent from the Court’s decision that it issues (1)b (1)c as designates possible should be reserved for a petition for postconviction relief. I would conclude that Hamilton’s counsel was not ineffective when object
he did not testimony, Detective Shaffer’s because such testimony has not been prejudicial. shown be inadmissible or would why also conclude that the record is clear Hamilton’s counsel made the remarks in closing appellate that his counsel now complains Thus, about. these matters should preserved not be postconviction relief. Relating to the claim of error because Detective Shaffer was give expert testimony
allowed to truthfulness, about Hamilton’s not, my view, Hamilton does successfully argue testimony that such As notes, inadmissible. it is well settled in Montana that credibility the determination of the weight of witnesses and the to be given testimony solely their is province jury. within the It is also improper expert testify for an regarding malingering and the percentage statistical of false accusations of sexual abuse. State v. (1986). Brodniak, instance, witness, Shaffer, testified concerning techniques he used in his interview of Hamilton and stated the purpose of these techniques. He also described Hamilton’s demeanor. Shaffer did not say believed, that Hamilton could not be nor did comment on his credibility. Also, closely he was points. cross-examined on these As it error, not shown that admission of testimony Shaffer’s constitutes it is not shown that counsel objecting was ineffective for not to its Also, evidence, introduction. all considering certainly it is shown that the outcome probably ofthe trial would have been different Therefore, had the not heard such testimony. Hamilton’s counsel objecting. was not ineffective for not *12 argument concerning the notes at As the Court Shaffer’s object counsel for failure of his
ineffectiveness Thus, entirely speculative. with B.H. is description of his interview two-step Strickland test to meet the is not sufficient argument counsel, if it is made on no matter ineffective assistance establish relief. postconviction for petition or in a appeal direct paint pretty not did no doubt that evidence There can be its proved the State had felt Hamilton. Whether picture of invite Hamilton going not case, were probably its members most closing remarks of counsel’s purpose The home for dinner. from the record. is clear the Court argument, as described that, even obviously point to make the argument was Hamilton, just him they could not convict disgusted with they if were may not have been Appellate him. they did not like because counsel did trial presentation. in his quite descriptive so a sound strongly presumed be point and his make his range of reasonable the wide my In view it is within strategy. trial professional conduct. (1)b (1)c as by the Court designated conclude that issues I for a preserved and not appeal of in this direct disposed be
should the Court’s decision from relief. dissent petition to do so.