*1
MONTANA,
STATE OF
Appellee,
Plaintiff and
MITCHELL,
CURTIS RANDALL
Appellant.
Defendant
No. DA 11-0352.
April 18,
on Briefs
Submitted
2012.
October
Decided
For Steve Attorney Montana Hinderman, General, Tammy Attorney Helena; Assistant Fred Van Valkenburg, County Thomas, Missoula Attorney; Shawn Deputy County Attorney, Missoula. Opinion
CHIEF JUSTICE McGRATH delivered the of the Court. (Mitchell) from his appeals Randall Appellant Curtis Court, County, Missoula District Judicial in the Fourth conviction 45-5-202,MCA. in violation of § assault felony aggravated one count of reversed under should be that his conviction argues investigate his claim because error doctrine He also MCA. required force as use of *2 because his of counsel ineffective assistance he received argues that consider the charge. his We for dismissal of attorney failed to move appeal: following issues on alleged law one: whether Issue ¶2 failure enforcement’s pursuant justifiable
Mitchell’s claim offorce plain error review. upon reversal warrants assistance received whether Mitchell Issue two: ¶3 ineffective upon based to move dismissal counsel when his trial counsel for failed his claim ofself-defense.
BACKGROUND report fight a between 15,2010, a witness called 911 August On ¶4 that explained The witness 316 Mission in Missoula. two men near the other man. When law out” being men was “choked one of the to choke arrived, continuing they observed enforcement sleeper held in a being identified the man man. The officers another hold as Mark Corbin. fight, to the prior that to law enforcement explained himself, him he should kill so him and told
Corbin had harassed fight, Mitchell ensuing In the to accost Corbin. Mitchell decided him up that he would let advantage and told Corbin gained the quickly released, However, he reached when Corbin was fighting. quit if he Corbin, charged his belt. Mitchell a multi-tool on behind himself for him, that Corbin had a yelled to the witness strangling resumed knife. calm, agitated and had to be Mitchell soon became initially While He told the proceed. initial could so that the
handcuffed did a knife on him. The officers pull had tried to officers that Corbin a closed multi-tool case open, knife in the but did observe not see a tool and whether They Corbin about the questioned belt. on Corbin’s admitted to during fight. Corbin removed it from its case he had Mitchell, he had but denied that multi-tool to “bluff’ reaching for his pouch. tool from its ever removed the interviewing Upon it as evidence. did not confiscate police The witness, that Mitchell had the officers determined and the parties
both him charge existed to with probable and that cause aggressor been aggravated assault. trial, Mitchell relied on the defense of use of force at testify
but did not on attorney argued his own behalf. His that Corbin aggressor had been the because Mitchell had withdrawn from the fight, only to resume when Corbin reached for his multi-tool. She suggested Corbin was also the aggressor bicycle because he had a with he which could have fight. argued withdrawn from the She properly investigate the fight based the failure to collect the multi-tool. In closing argument, she specifically argued, “The They it, officers didn’t confiscate it. any pictures didn’t take of but there’s evidence of it.” She did not file a motion to dismiss. officers, Corbin, Three eye-witness and the testified at trial. The
eye-witness knife, testified that Mitchell told him that Corbin had a but he never saw one himself. One officer testified that she did not multi-tool, inspect but that she was familiar with such tools because she owned one they herself. She testified that display pair pliers initially when opened, but a small blade can also be drawn. She testified that she did not seize the tool because it had been secured opinion. was not threat in her Another officer testified that he was aware that Corbin had a multi-tool in a pouch pocket. in his The Mitchell, jury convicted and he was sentenced to Montana State Prison years *3 years 20 with 10 suspended. He appeals now from his conviction.
STANDARDS OF REVIEW
10 The interpretation
¶
and
law;
construction ofa statute is a matter of
thus, we review de novo whether the district court interpreted and
applied
West,
the statute correctly.
338, 13,
State v.
2008 MT
346
¶
244, 194
Mont.
P.3d
plain
683. We invoke
sparingly,
error review
aon
basis,
case-by-case
according
circumstances,
to narrow
by
and
considering
totality
the
of the case’s
Lindberg,
circumstances. State v.
389, 34,
76,
2008 MT
347 Mont.
¶
“[A]
1252.
mere assertion
that
rights
constitutional
are implicated or that failure to review the
may
claimed error
in a manifest miscarriage
justice
of
is
insufficient
implicate
plain
the
Gunderson,
error doctrine.” State v.
166, 100,
2010 MT
142,
357
¶
Mont.
of law and fact that we Gunderson, review de novo. ¶
ANALYSIS Issue one: whether law to 45-3-112, claim justifiable Mitchell’s pursuant to § offorce
382 review. plain error
warrants reversal
doctrine,
discretionarily review claimed
we
plain
the
error
Under
fundamental
criminal
defendant’s
implicate
that
errors
in the
timely objection was not made
if a
rights, even
constitutional
46-20-701(2),MCA,
as
often referred to
West,
court.
23. Section
¶
trial
that
rule,
appellant
the
to establish
statutory
requires
error
plain
the
to at
rights,
objected
that was not
effecting constitutional
an error
See State
guilt
punishment.
the defendant’s
or
trial,
prejudicial
was
Here,
17-20,
276,
P.3d 646.
Ellison,
50,
364 Mont.
272
2012 MT
v.
statute,
but rather asks
error under
plain
Mitchell does not raise
doctrine
error review—a
plain
invoke common law
the Court to
126,
[Sjimply requesting
we
issue under
unpreserved
In
to obtain review ofan
sufficient.
order
(1)
doctrine,
must
show that the claimed
appealing party
this
(2)“firmly
this
right
a fundamental
convince”
implicates
to review the claimed error would result
Court that failure
question
ofthe
miscarriage
justice,
manifest
leave unsettled
proceedings,
compromise
of the trial or
or
fundamental fairness
integrity
judicial process.
253, 17,
Norman,
358 Mont.
first enacted the 2009 The statute reads: peace When an is conducted officer of an *4 appears alleged incident that to have or is to have involved force, must be conducted so as justifiable use of the evidence, including testimony concerning the to disclose all alleged the might support apparent offense and that justifiable of force. 45-3-112,
Section MCA. case, Arecently decided v. Cooksey, State 2012 MT held that the correctly district court had applied the law when it found that impose any did not new independent duty and to cases involving justifiable Instead, use of force. the long- statute reflects obligations regarding established thorough and complete police investigations requirements and the prosecution disclose evidence in government’s possession the that is relevant to the defense justifiable use of Cooksey, case, force. In 34-35. Mitchell’s the prosecution complied with obligations. these ¶17 Mitchell’s defense was that he had “a real and imminent fear he was going to be attacked with a knife.” Mitchell alleged that Corbin reached for a potential weapon pouch leather on his belt. This was times, disclosed at trial multiple readily established without the physical eye-witness evidence. The testified during cross- examination that Mitchell told him that knife, Corbin had a but that he had not seen him one. He also testified that Mitchell yelled had to to police, call the and that he told dispatcher on the subsequent call that Mitchell was him. yelling that the other guy pulled a knife on The officer who first responded to the incident testified on cross- examination that Mitchell told him he had sleeper resumed his hold on only Corbin after he saw him reach for a knife. He testified that Corbin him, had the multi-tool on and that the tool contained a knife. He also acknowledged officer, that as an duty he had a investigate any possible Likewise, self-defense claims. another responding officer testified that Corbin informed her that he had a multi-tool himon during confrontation, which included a blade among many its features. She recognized that it could be used weapon, as a but did not confiscate the tool because it was secured and her investigation did not indicate that it had been involved in the confrontation. The detective who investigated the incident also testified that Corbin admitted to her that he had reached for the multi-tool to “bluff’ Mitchell into thinking he was going pull Finally, knife. jury was instructed on force, use of given and was also an instruction mirroring the language of § light In of our decision in Cooksey and the facts of the instant
case, we conclude that Mitchell has failed why plain demonstrate error review of this issue should be exercised. We invoke error doctrine sparingly, only where failing review claimed may in a manifest miscarriage justice, may leave unsettled question of the fundamental fairness of the trial or
384 process. judicial of the integrity may compromise
proceedings, met this threshold. has not Norman, We conclude Mitchell ¶ assistance received Mitchell Issue two: whether ¶19 of ineffective upon based move dismissal to when his trial counsel counsel failed his claim law self-defense. enforcement’s to move for failing ineffective for counsel was Mitchell asserts his ¶20 him based charging the information dismissal of claim, citing 45- again § his alleged failure to 3-112, MCA. United States Constitution Amendment of the The Sixth right 24, guarantee II, the Montana Constitution
Article
§
claims under the two-
analyze IAC
of counsel. We
effective assistance
Court in Strickland
Supreme
United States
by
articulated
part test
(1984). A defendant
668,
demonstrate the existence of
conduct,
proceedings
result of the
would
unprofessional
counsel’s
90, 53,
315 Mont.
2003
Jefferson,
¶
have been different. State
Strickland,
at
duty on law enforcement on the fact predicated in Mitchell’s defense was performed this case. draw a knife going Corbin was he had an imminent fear that by the disputed fact was never pouch on his belt. This from presented witnesses as byor prosecution Clearly, practice the better force defense. vigorous justifiable use of the tool as evidence. to have collected have been for the would that, under the However, Mitchell has made no demonstration circumstances, the failure to collect the multi-tool as evidence constituted an fundamental implicated error that his constitutional Therefore, rights. a motion for dismissal trial counsel would have unlikely been to succeed. Cooksey, See 36. Mitchell has failed to ¶ demonstrate that the result of the proceedings would have been filed, different had the motion been and has thus failed to establish ineffective assistance of counsel. Because he has made an insufficient showing prejudice on the
prong test, ofthe Strickland further analysis unnecessary. Whitlow, is ¶11.
CONCLUSION Based foregoing, on the judgment we affirm the of the District *6 Court, and dismiss Mitchell’s ineffective assistance of counsel claim prejudice. with Mitchell has failed to establish that alleged failure of law enforcement officials to comply with § prejudiced his defense requiring this Court to review, nor has he established that his exercise representation
counsel’s ineffective. WHEAT, COTTER,
JUSTICES BAKER and MORRIS concur. NELSON, JUSTICE dissenting. I dissent. The analysis Court’s of both issues is ultimately
grounded in interpretation its recently as set out in State v. Cooksey, 34-38, ¶¶ 1174. I disagree with that interpretation, and thus the Court’s resolution of the instant appeal, for the reasons stated in my Cooksey 50-52, dissent. See Cooksey, (Nelson, J., 63-104 concurring in part and dissenting in part).
JUSTICE joins RICE in the Dissent of JUSTICE NELSON.