*1
STATE OF MONTANA,
Appellee,
Plaintiff and
ROBERT WING,
L.
Appellant.
Defendant
No. DA 06-0776.
April
Submitted on Briefs
2008.
Decided June
JUSTICE COTTER in the Seventeenth Wing (Wing) appeals his conviction Robert L. felony criminal distribution Court, Valley County for Judicial District dangerous drugs, of felony possession criminal dangerous drugs, of intent to distribute. dangerous drugs with criminal of felony possession proceedings for further in and remand part, part, affirm in reverse We Opinion. consistent with BACKGROUND AND PROCEDURAL
FACTUAL target of an Wing became prior April Sometime to drugs in the dangerous of into the criminal distribution investigation out investigation was carried Montana. This Glasgow, area of (VCSO), Glasgow Department Police Office Valley County Sheriffs (Task Force). In Task Force (GPD), Muddy Drug River Big and the Task Force and VCSO 2003, members of the December of May and illegal drugs and who had used people with conducted interviews background conducted a source. The GPD Wing that was their claimed prior that he had two 4, 2005, and discovered April Wing check of on possession criminal and 1988 for in 1976 misdemeanor convictions drugs. dangerous 2005, member of the GPD February a January early or In late (Cl) Arrowood named Rondal informant a confidential
spoke with to (Arrowood) drugs from illegal he had received who claimed a white drive that would Arrowood stated profit. for a distribute those purchase in North Dakota location to an unknown Cadillac Helen Wing”s wife were aware enforcement officials drugs. Law Arrowood (Helen) description. matched a car which drove drugs at illegal Wing would distribute also told the GPD keep Wing would stated that Arrowood Glasgow. Bar in Stockman sell, in the bar to and would pocket in his front while supply drove, regularly in a truck he either keep drugs pickup also hidden mat, seat, iñ the bed under the floor behind the or in a black tool box Later, house present Wing’s Arrowood stated he was at pickup. 5,2005, bags evening April gram on the and observed three one-half (which marijuana Wing’s person, bag of cocaine on as well as ounce) three-quarters of an approximately Arrowood believed was inside residence. 6,2005, VCSO, April investigation by On in furtherance ofthe GPD, Force, agreed attempt and the Task Arrowood a controlled
purchase marijuana Wing. listening An audio device was placed approximately on Arrowood and tested at 12:25 p.m. Arrowood then p.m. given currency. searched 1:05 U.S. $80.00 (Buerkle) VCSO Undersheriff Vernon Buerkle recorded the serial At approximately, p.m. numbers of bills. 1:10 Arrowood went to son, Glasgow by Wing’s residence and was informed Dennis Wing (Dennis), that Wing was at the Stockman Bar. While he was in Wing’s residence, loud music drowned out all but the initial conversation Arrowood had Dennis. then proceeded the Stockman Bar. the time Between Arrowood left residence bar, and reached the VCSO officials turned off the recording. audio *3 During time, gap investigator, Arrowood met with a Task Force and also went to the grabbed Roosevelt Hotel where he lived and a Dr. Pepper from his truck. Arrowood arrived at the Stockman Bar at approximately p.m., by 1:31 followed law enforcement officials. Stockman Bar, When Arrowood entered the Buerkle began recording again However, on the listening device. due to noise in the bar, much recording of the transmission was inaudible. While bar, Force, Arrowood in the Kemp a member of the Task Ron (Kemp) observed a parked white Cadillac in front ofthe bar. Inside the bar, Arrowood and him if approached Wing “bag asked he had a of Arrowood, him According agreed smoke.” at that time to sell quarter bag ounce marijuana of for then left the bar $60.00. through door, the front returning approximately two minutes later a bag marijuana. Wing with of then next him gave sat to Arrowood and bag. return, gave Wing Arrowood three After $20.00 bills. purchasing marijuana, stayed Arrowood at the bar for a short period time, leaving p.m. Approximately around 2:14 two minutes later, gave marijuana, Arrowood Kemp bag proceeded of and then (LEC). there, to the Valley County Law Enforcement Center Once at approximately p.m., gave remaining 2:21 Buerkle the $15.00
he had on his At person, Kemp. approximately was searched p.m., Wing transported 2:47 was arrested at the Stockman Bar and arrest, During the LEC. the search incident to his law enforcement currency nylon Wing’s found in U.S. in a black wallet in left $367.00 pocket. shirt The serial numbers on three bills found in the $20.00 purchase given wallet matched those on the bills to Arrowood marijuana buy. in the controlled information, Deputy Doug Based on this Chief for the VCSO (Wixson) Justice of the Peace
Wixson a sworn affidavit to Linda M. Hartsock on at 11:15 April approximately p.m., probable which he stated that he had cause to believe that the offenses criminal dangerous drugs, possession of of criminal of distribution had dangerous drugs, possession drug paraphernalia and criminal of crimes committed, been and that evidence of these would be found at Glasgow residence in and in the white Cadillac. affidavit concerning buy, Wing’s related the the controlled above incidents convictions, individuals who claimed to previous interviews of purchased drugs Wing. have The affidavit also described with Cadillac which had been particularity Wing’s house and the white arrest, and the evidence Wixson believed impounded incident to 6,2005, affidavit, April on would be discovered there. Based on this p.m., granted Justice of the Peace Hartsock the State a warrant 11:20 Cadillac. to search house as well as the white house, law enforcement seized Pursuant to the search of individually drug marijuana, suspected paraphernalia, suspected containing bags suspected marijuana, Ziploc bag of and a packaged A search baggies crystal methamphetamine. numerous individual drug paraphernalia, Ziploc six suspected ofthe white Cadillac revealed $2,000.00 each, crystal bags containing large suspected amount of crystal baggies numerous individual methamphetamine, eight individually packaged baggies suspected methamphetamine, marijuana, totaling over marijuana, suspected and several bricks of sixty grams. May 10, charged Wing Information On I with criminal distribution felony charged
seven counts. Count 6,2005. selling marijuana April to Arrowood on dangerous drugs (both drugs) and possession dangerous II III for criminal Counts *4 (criminal drugs with intent dangerous and V possession Counts IV distribute) from the white all based on the evidence seized to were methamphetamine marijuana and Cadillac. Count VI involved sales occurred allegedly McDonald which an named Scott to individual February Glasgow. Lastly, 2005 and in Count April between marijuana methamphetamine VII involved sales of to an (Brown) allegedly individual named Patricia Brown which occurred February 6, 2005, Glasgow. 2005 and April between Wing applied court-appointed for and received counsel. On 20, 2005, Wing December filed a motion to all the evidence suppress which was seized pursuant Wing search warrant. asserted that the search application probable warrant did not establish cause for the Wing reliability issuance of the search warrant. maintained that the capacity as a Cl had not been demonstrated as required Reesman, 243, 301 408, 10 under State MT Mont. P.3d 83, grounds by Barnaby, 203, overruled on other State v. 2006 MT 220, 142 Mont. P.3d and thus the application search warrant invalid. The Court disagreed Wing’s motion, District and denied concluding that reliability Arrowood’s had been established under Reesman because he had made an unequivocal against admission interest admitting police that he had purchased small amount marijuana past. Reesman, from in the May 31,2006, trial, On days prior seven Wing filed a motion in limine seeking the issuance of a protective preclude order to the State from releasing any information, testimony witnesses, from or concerning crimes, documents other wrongs or acts which relate might at the time of trial. In his support, Wing memorandum in noted investigative file pertaining to his case contained interviews, reports, numerous and memoranda which identified other charged incidents not in the Information. Because the Information only concerned the time period February between 2005 and April 2005, Wing sought to limit the presentation of evidence to matters within subsequent those dates. In motions sought also to exclude (1) the following testimony evidence: from any Arrowood or exhibits (2) related buy; any to the controlled hearsay inadmissible long testify Arrowood so as he did not at trial. trial, On day the first before began, selection the District
Court ruled on motion in As limine. stated the District Court, indicates, motion,
[T]he response in its to this that it does acts, crimes, not intend to wrongs, introduce evidence of other or that it had admonished its witnesses that the acts for testimony which the given can be is for those which the defendant charged. intent, To ensure that I State follows will issue *5 which the only that the acts for point order at this protective are those for which the defendant is testimony given can be crimes, extent, the motion in limine for other charged; to that the motion seeks granted, be otherwise wrongs, or acts will relief, that further relief is denied. further Information, alleged that In Count VII dangerous drugs by of of criminal distribution committed the offense exchange to Brown in marijuana and selling methamphetamine February April of 2005 to Glasgow during period the time cash statements as to when However, Wing contended that Brown’s 2005. inconsistent or were either actually purchased drugs she in 2004. After drugs those sometime purchased indicated that she had concerns that ruling, Wing expressed further District Court’s drugs of occurred might she state that a sale gave testimony, if Brown Information, putting thus alleged in the the time frame outside the State offered jury. response, of other crimes before evidence she leading question as whether only it ask Brown that would February, of Wing during period the time drugs from purchased Wing agreed that would be March, days April of or the first few the issue would solution, and the District Court stated acceptable an in that manner. be handled following statements, made the prosecutor During opening
statement: drugs. bought a little bit you tell that she
Patsy Brown will drugs those drugs, those some you purchased that she She’lltell days of March, or the first few February, during the months added.) April. (Emphasis had that the State statements, attorney objected
After these Wing’sattorney for a mistrial. order and moved protective violated the the statement registered he heard and that both argued he attorney asserted that would jury likely did as well. statement had on that this prejudice to reverse the not be able Wing at other brought drugs from Brown had implied it jury, as opened now been that the “door has Wing’s attorney argued times. there were told the County Attorney has now the because period this time ....” outside of drugs other involved Court denied the District reviewing transcript, After order. protective did not violate motion, concluding that the State counsel record, by the State’s the comments reviewing the After witness, Patsy namely acts of a referring is construed as occurring to acts time it relates Brown, in reference to the in Count 7. charge the time frame of the within it refers to the fact drugs, purchase As it relates to and does not by that witness purchased those were coming from the purchases all of those specifically refer to defendant. a remark which was made in
Taken into consideration this is statement and refers thoroughly lengthy opening course of a statement, the motion for opening to several words used in that said, being That the State’s counsel mistrial is denied. protective area as to avoid a violation of a cautioned so order. trial, Wing during day On June the second moved
admit recording the audio made law enforcement of Arrowood’s *6 drugs. recording Wing played The admitted and it for purchase of was recording during the In to the made Arrowood the jury. addition buy, tape controlled the also contained a conversation between Helen, Wing’s However, did not that play Arrowood and wife. portion recording jury. Wing presented of the also his son he During testimony, Dennis as a witness. his Dennis stated that had arrest, after gone apartment day to Arrowood’s the where marijuana. Wing presented testimony Arrowood offered him also from investigator Jerry an named testified that he had used Jacobsen who professional transcribing equipment recording to review the audio buy that, made the due during controlled determined to the poor quality tape, tape of the there was no evidence on the about drugs money. testimony, or In his Jacobson did not refer to the recorded conversation between Helen and Arrowood at the end of the tape. During closing arguments, Wing argued key proving
the charges drugs first five rested on whether the in the Cadillac were his. belonged maintained that the white Cadillac to his wife Helen, they that had separated years, been for several and that the drugs found in the Cadillac were closing, not his. attorney stated the following:
One of those interesting escapes you you facts almost until get point case, to this of the you’re talking when about the white Cadillac, you They they got do recall the search said warrant? search my warrant both the white Cadillac and client’s house. Remember that?
Now, any I it in this case haven’t seen evidence and there’s a lot of far as the foundation of it. There’s stipulated we’ve even to as
drugs, money, drug paraphernalia, there’s there’s none but there’s [Wing’s] you any you of that in Bob house. Did see evidence? Did anything drug paraphernalia hear about in the house? objected requested approach The State to these statements and prohibited by pretrial the bench. The State maintained it had been crimes, introducing any order from evidence of other as well as argued evidence from house. was now telling jury bring any the that it failed to evidence about house, that the evidence not implying presented somehow objection, fact sufficient. The District Court overruled based on the concerning trial that there had been evidence service of the warrant. scope rebuttal, then During prosecution the State’s stated the following:
So the first are not tied charges together, contrary five what [Wing’s says. [Wing’s There’s no evidence of that. counsel] of, says something introducing any about us not evidence counsel] house, residence, prohibited that’s because we were from the doing from that.
Wing’sattorney objected, Wing argued and a bench conference ensued. introducing any from evidence prevented that the State had not been from house. The testimony concerning or what had been seized prevented introducing State maintained that it had been such However, evidence, the District Court opposed Wing’s objection. comments to the granted Wing’s objection and held that State’s by the District Court were jury regarding pretrial orders issued following then improper. gave The District Court cautionary instruction: jury, during proceedings these gentlemen
Ladies and *7 rulings are pretrial rulings, pretrial Court made certain those has deliberations, you must you during your of no concern to so closing argument in their disregard any comment counsel rulings. regarding pretrial those deliberations, received the audio During jury requested and
¶19 buy. tape during the controlled tape recording made Arrowood had a recorded indicating notation that it also contained written portion This of the audio between Arrowood and Helen. conversation conversation, In this never admitted into evidence. tape recording was house, he Arrowood stated that place Wing’s which took at Helen misdemeanor, and Helen arrested for a hoped Wing had been that after explained did not know. Arrowood also responded that she
251 arrest, destroyed all of his he went to his room testimony This contradicted Dennis earlier paraphernalia. him drugs day had offered after his father’s arrest. in her pressed get everything Arrowood also Helen to rid of house. anything did not related in her responded drug Helen she have any trial counsel did not make to attempt prevent house. jury hearing portion tape recording. deliberating, jury After convicted on all seven counts. He
¶20 was sentenced to a combination of concurrent and consecutive Prison, totaling thirty-five years sentences in the Montana State years suspended. Wing challenges ten now his in the conviction Court, District and raises four appeal. issues on We state the issues on appeal as follows: denying Wing’s Issue One: Did the District Court err in
¶21 motion suppress pursuant the evidence seized to the search warrant ? Issue Two: Did the State violate Wing’s rights constitutional process by commenting due about other acts and evidence which were scope charges outside the contained Information? Issue Three: Was constitutional right to effective assistance counsel violated when trial permitted counsel entire audiotape contents exhibit to go in its deliberations? Issue Wing’srights against Four: Did the District Court violate II,
double jeopardy under Article Section 25 the Montana Constitution and the Amendment to the United States Fifth sentencing Constitution in him under Counts II and III Information?
STANDARD OF REVIEW We review a district court’s denial of a motion to suppress findings clearly determine whether its of fact are erroneous and whether interpretation application its of the law is correct. State Bieber, 262, 20, 309, 20, 170 444, 2007 MT 339 Mont. P.3d 20. ¶ ¶ ¶ grant deny We review a district court’s decision whether to or motion 328, Flores, for a mistrial for an abuse of MT discretion. State v. 12, 255, 12, 124, A Mont. 974 P.2d 12. district court’s denial ¶ ¶ ¶ of a and will appeal, motion for a mistrial is entitled to deference on Novak, not Mont. second-guessed. be State v. 2005 MT ¶ 182, Moreover, an 124 P.3d because a mistrial is ¶ ¶ mistrial preferred of a exceptional remedy, remedial action short Novak, 26. justice require unless the ends of otherwise. *8 questions Ineffective assistance ofcounsel claims constitute mixed
¶26 State, 2008 MT of law and fact which we review de novo. Whitlow 140, 9, 343 Mont. 183 P.3d ¶ ¶ ¶
DISCUSSION denying Wing’s Issue One: Did the District Court err in motion pursuant the evidence seized to the search warrant ? suppress concluding suppress, The District Court denied motion to the Peace Hartsock was that the search warrant issued Justice of finding probable sufficient facts for a cause. supported contained information support affidavit search warrant (1) Cadillac; and the concerning following: Wing’s residence white (3) (2) information Wing’s prior drug possession; convictions for about (4) Wing; supplied by information alleged past drugs by sales of storing, procuring, selling methods of concerning (5) alleged of Arrowood’s controlled drugs; and a narrative account Bar, at the Stockman purchase challenges sufficiency of the search subsequent arrest. asserts that respects. particular, warrant in several alleged drug drug his former convictions and concerning information stale, reliability as a Cl was not sales was and that Arrowood’s established. test as set forth in “totality We use the of the circumstances” Gates, (1983), to determine
Illinois v.
462 U.S.
Under the of the circumstances determination, given common sense practical, officermust make a warrant, for a search application all the contained in the evidence of a a fair exists that contraband or evidence probability whether place. found in a particular crime will be warrant must state facts sufficient application An for a search A a warrant. for the issuance of probable to show cause require cause does not facts sufficient probable determination of rather, issuing judicial activity, criminal showing to make a probability that there exists a must determine officer solely from determined activity. criminal Probable cause must be the four corners of the search contained within the information reviewing court is Our function as a application. warrant had a issuing judicial officer ultimately that ensure cause existed. probable “substantial basis” to determine (citations omitted). Barnaby, 29-30 ¶¶ assuming arguendo reliability Even that Arrowood’s as a Cl Reesman, sufficiently
was not established under and that concerning Wing’s previous alleged information convictions and past *9 stale, drugs sales was the four comers of the search warrant did provide issuing judicial a “substantial basis” for the officer to probability Wing engaging determine the existence of a was in activity, activity criminal and that evidence of this would in be found the Cadillac and his house. The search warrant contained a narrative alleged purchase Wing account ofArrowood’s controlled from Wing’ssubsequent Wing argue arrest. does not purchase illegal improperly by was or that it was conducted enforcement law officials. application provided We conclude the warrant facts sufficient to probable occurring, show cause that a crime was and thus supported Therefore, the issuance the search warrant. the District Court did not err in denying suppress. motion to Issue Two: Did the State rights violate constitutional due process by commenting about other acts and evidence which were outside the scope charges the contained in the ? Information During opening arguments, the prosecution jury told the bought Brown “some” of the drugs purchased Wing which she from (See 13.) during the time frames described in the Information. Wing ¶ comments, moved for a mistrial on the basis these and the District (See 14.) Court denied the Dining closing arguments, motion. the ¶ prosecution then referred to the fact that it prohibited was introducing evidence seized from house virtue of previous rulings by the Wing objected, District Court. and the District Court (See 18.) gave jury cautionary instruction. now asserts ¶ efficacy cautionary ofthis instruction is in doubt. asserts that, prosecutor’s during when combined with the opening statements arguments, jury impression was left with the that the State had against Wing more evidence it not present, which was allowed to which in turn contributed to his conviction. The burden is on the defendant to demonstrate that a
“prosecutor’s improper prejudiced right comments his or her to a fair resulted, and impartial determining prejudice trial. In whether improper in of the case in its comments must be viewed the context entirety.” Gladue, MT 1, 27, 293 1, 27, 972 P.2d State v. 1999 Mont. ¶ ¶ (citations omitted). 827, Moreover, 27 “an error in the admission of admonished may they jury disregard evidence cured if it.” State be 254 (1996). Walker, 346, 353, 280 Mont. 930 P.2d prosecutor’s improper has failed to demonstrate that the to fair and trial. In the prejudiced right impartial
comments first instance, denying the District Court did not abuse its discretion in during prosecution’s opening motion for a mistrial remarks. drugs” that the “some of those comment explained District Court Brown, referring prosecution to the acts of witness referring Wing. Secondly, did not construe them as to other acts in given by response curative instruction the District Court sufficiently prosecutor’s during closing arguments comments disregard prosecutor’s admonished the comments on the Partin, rulings. As we noted in State v. 287 Mont. pretrial (1997), cautionary P.2d we consider the effect of a light against of the other evidence instruction Here, supported by probable defendant. the search warrant was cause significant and led to a lawful seizure of a amount of evidence. Moreover, instruction, Wing after the District Court issued this did not circumstances, object further or move for a mistrial. Under these we denying Wing’s motion for a conclude the District Court did not err mistrial, any prejudicial prosecution’s and that effect the comments *10 by during closing arguments may jury have had on the was cured the cautionary instruction issued the District Court. Wing’s right Issue Three: Was constitutional to ¶35 effective permitted counsel violated when his trial counsel the
assistance jury the in its audiotape go entire contents exhibit to to deliberations? right that trial counsel violated his to effective Wing maintains
¶36 the Sixth Amendment to the U.S. assistance of counsel under Constitution, Constitution, II, 24 the Montana and Article Section audiotape it the entire contents of the exhibit to be when allowed included a conversation jury. Wing tape heard notes that the However, Helen did not Helen and Arrowood. Wing’s between wife trial, concerning this testify at nor was Arrowood cross-examined this, he was denied his Wing argues Because of conversation. him. right against to confront the witnesses constitutional Further, audiotape prejudiced Wing argues contents Wing’s Helen discussed arrest. audiotape, him. On the Arrowood and just arrested for a hoped Wing that he Arrowood stated anything drug that she did not have misdemeanor. Helen stated anything get Helen to rid of urged related in her house. Arrowood illegal any did not have house, Helen reiterated that she her from Helen contradicted his drugs. Wing argues that these statements drugs belonged that the found in the white Cadillac to her defense Additionally, got Arrowood stated that he had rid of Wing. instead of This contravened paraphernalia all his after arrest. day him testimony marijuana from Dermis that Arrowood offered argument supported by after the arrest. claims his is State v. Parker, MT 334 Mont. P.3d The State maintains that ineffective assistance of counsel claims only are not record and thus can in a petition based be raised postconviction Additionally, if argues relief. State that even reviewable, they claims are fail he failed to because has demonstrate how the of the audiotape prejudiced admission has him. out, instance, The points State in the first that it was who audiotape admitted the into evidence. that Assuming listened audiotape whole and was able to discern the conversation Arrowood, points between Helen and the State out that neither party implicates Wing drug activities, is any nor there mention of the Instead, white Cadillac on the tape. Helen states that she does not have any drugs in her house. argues State further did not audiotape prejudice weighed against totality when of the evidence. The State it presented Wing’stheory
asserts sufficient evidence to contradict Helen, the drugs belonged including in the Cadillac the fact that Wing commonly Cadillac, fingerprints drove the white that his were on baggies Cadillac, marijuana digital and a scale seized in the name appeared prescription pill on a bottle seized from the Furthermore, white methamphetamines. Cadillac which contained argues that Parker distinguishable. Parker, felony defendant Parker was tried and convicted of injuries allegedly against assault with a on he inflicted weapon, based trial, admitted During taped his wife and son. the State into evidence implicated interviews with Parker’s children which him in the assault. However, trial, testimony stating Parker’s children recanted their events, they could not remember details of the or had been forced by an adult Eve houseguest staying who was at their house named (Kratz) Parker, Kratz make 5-6. police. false statements ¶¶ *11 Kratz not testify herself did trial. containing the interviews was delivered to audiotape taped Parker, however, the jury during deliberations. Unbeknownst Kratz,
audiotape also contained a recorded statement made which trial, during apparently was not admitted into evidence and which intimidated the children into contradicted Parker’s claims that Kratz Parker, argued statements. 9. Parker that the interview giving false ¶ defense, argued Kratz at the heart of his because he had with struck initially gave children false statements to the during trial that his Parker, and intimidation from Kratz. 16. police pressure under ¶ audiotape by jury of this argued Parker that the consideration him, against right violated his constitutional to confront the witnesses opportunity he denied the to cross examine Kratz or because was challenge credibility her as a witness. claims, delivery that the ofthe analyzing In Parker’s we concluded error, one, jury opposed was a trial as to structural
tape Parker, to Parker’s claim. 23. In applied analysis harmless error ¶ evidence, of the we examined whether or not impact order to asses the jury was was cumulative. We considered whether audiotape as the proved with other evidence that same facts presented evidence, quality could prove tainted and whether the State probability was that there was no reasonable ofKratz’s statement such Parker, conviction. 24. We might it have contributed to Parker’s ¶ not harmless error. audiotape concluded that consideration of the was examination, subject to noted that because Kratz was not cross We essentially gave a one-sided audiotape consideration of the advantage and Parker’s detriment. to the State’s version events could corroborate the Parker, 26. Given the fact that no one witness ¶ occurred, at least as crucial to Kratz’s statement was events family superior members and of case as the statements of prosecution’s at trial. quality to other evidence distinguishable. Because the State that Parker agree We claim, prove ofcounsel he must an ineffective assistance presents (2) (1) deficient, that counsel’s performance his counsel’s Whitlow, Under the first him. performance prejudiced ¶ deficient conduct fell test, that his “counsel’s of this must show prong measured under standard of reasonableness objective below an surrounding light and in norms prevailing professional two, must “[t]he defendant Whitlow, prong 20. Under circumstances.” that, for counsel's probability but that there is a reasonable show have been errors, proceeding would the result of unprofessional sufficient probability is a probability A reasonable different. Washington, in the outcome.” Strickland undermine confidence (1984). U.S. 104 S. Ct. hearing an determination, a court making totality of the evidence consider the
ineffectiveness claim must *12 findings have Some of the factual will judge jury. the or before errors, findings factual that were by the and been unaffected errors ways. in different Some affected have been affected will drawn a effect on the inferences be pervasive will have had evidentiary and evidence, altering picture, the entire from the Moreover, isolated, effect. a verdict some will have had an trivial likely only weakly by the record is more supported or conclusion overwhelming by to have affected errors than one with been given, a and Taking findings the unaffected as support. record remaining account of the effect of the errors on the taking due making inquiry the must ask if the findings, prejudice a court showing the the decision defendant has met burden of likely different the reasonably reached would have been absent errors.
Strickland,
695-96,
U.S. at
deficient in the allowing taped conversation between Arrowood that, error, by jury, say Helen to be heard the we cannot but for this against Wing the result of trial would be different. The case a in the supported substantial amount of evidence seized white Moreover, Cadillac, Cadillac. the State that he drove the established drugs and that he had handled the in the car. It was also some of Wing day. established that drove the Cadillac on that Unlike the Parker, audiotape audiotape Wing’s only in case could have had strength directly effect of defense. Had Helen peripheral on his stated in the Cadillac implicated Wing, drugs or white were hers, might not more merit. prejudice then claims of have However, drugs Helen stated that she herself did not have in her house, regarding ownership and she made no statements of the Further, drugs in the white Cadillac. has failed to show how establishing falsity got statements that he rid of all Arrowood’s case, drugs would have resulted in a different outcome the State. especially light of the amount of evidence Wing’srights against Issue Four: Did the violate District Court II, jeopardy double under Article Section 25 the Montana Constitution and the Amendment to the United States Fifth III sentencing Constitution in him under Counts II and Information? jeopardy that the District Court violated his double argues and the
rights II, under Article Section 25 ofthe Montana Constitution In particular, Fifth Amendment to United States Constitution. concerning possession asserts that the two counts of dangerous drugs concerning and the two the criminal possession counts dangerous drugs with intent to distribute involved same all punishment conviction under these counts would unconstitutionally for the permit multiple punishments same offense. State, appeal, addressing propriety plain On while not error claim, jeopardy agrees review or the merits of the double Thus, request to remand. we remand this case to the District Court III, II with instructions to vacate convictions under Counts remaining and re-sentence him in accordance with the convictions.
CONCLUSION *13 suppress. We affirm the District Court’s denial of motion to ¶47 rights We further conclude that constitutional to due process and effective assistance of counsel were not violated in the course of However, his trial. remand this case to the District Court to we vacate Wing’s convictions on Counts II and III and re-sentence him accordingly.
JUSTICES LEAPHART and MORRIS concur. GRAY, in concurring part dissenting
CHIEF JUSTICE in part. I join opinion through I in the Court’s on issues one three. concur
¶48 four, respectfully in the but dissent from the Court’s resolution issue apply plain to the issue. I common law error approach Court’s would review, jeopardy reverse the District Court on the merits ofthe double issue, re-sentencing. I would not and remand-as Court does-for in put agreeing allow the State to a District Court error “remedy,” having propriety without been bothered to address the jeopardy of the claim. plain error review or the merits double are to be correct and the presumed District court decisions See State v. establishing e.g. bears the burden of error. appellant 442, 33; Gomez, 111, 33, 219, 33, 158 P.3d 2007 MT 337 Mont. ¶ ¶ ¶ Harville, 380, 12, 147 P.3d 2006 MT 334 Mont. ¶ ¶ minimum, trial At I the State owes Montana’s believe decisions on the merits or respect support sufficient to either courts I arguments. validity appellant’s of an substantive concede offered willingness procedure to follow the understand the Court’s known, and, is well we State here. Our workload is enormous as my us. It is deciding in the cases before are unable to remain current and, now, approach cheapens view, that the State’s the Court’s though, for our disrespect and shows justice the administration of in Montana do not deserve such treatment. judges. trial The district courts If, view, legal in in the State’s a trial court has made a error analyzing something important jeopardy as as constitutional double protections, the State should concede the issue on the merits so not, argument and present legal law is established. If the State should authority support presumed in of the decision which is to be correct. timely. also are doing We are all conscious of our work We aspects conscious of These two critical doing quality work. justice system daily administration of the criminal are in tension. As already mentioned, this Court is not current. same is true Appellate Attorney General, Bureau of the Office of the which seeks significant numbers of extensions time to file the State’s briefs appeals. my opinion, however, criminal the “answer” to this tension quality-whatever may between time and it simply be-cannot be to throw district court decisions to the way wolves such a casual as this. I have an additional A process whereby just concern. the State can
agree with an appellant’s remedy, addressing without the issues merits, on the may “cherry well allow the State pick” issues and necessity control outcomes without the doing much substantive potential result, fear, work. The I is that this Court will up end writing precedential in criminal opinions appeals only in cases in which the State is confident it prevail. will This result would literally justice stand the administration of on its head. I approach
¶53 dissent from the Court’s join fourth issue. I it in remanding this case to the resentencing. District Court for
JUSTICE NELSON concurs. *14 join While I Opinion, join the Court’s I also Chief Justice Gray’s comments 49-52 of her Concurrence and Dissent. If all or part ¶¶ either argument defendant’s or the State’s on appeal meritorious, party; then a concession is in order from the other if it is not, then opposing argument should be made. It no benefits parties one-neither the nor the courts-to brief and decide issues that seek-and, are obligation every lawyer my without merit. The view, acknowledge-the truth practice is not limited to the of civil law.