Bomar v. State

365 Mont. 474

285 P.3d 396

2012 MT 163

Larry BOMAR, Petitioner and Appellant,

v.STATE of Montana, Respondent and Appellee.

No. DA 11–0373.

Supreme Court of Montana.

Submitted on Briefs May 30, 2012.

Decided July 31, 2012.

For Appellant: Wade Zolynski, Chief Appellate Defender; Koan Mercer, Assistant Appellate Defender; John Wright, Legal Intern; Helena, Montana.

For Appellee: Steve Bullock, Montana Attorney General; Mardell Ployhar, Assistant Attorney General; Helena, Montana, Carolyn Berkram, Glacier County Attorney; Cut Bank, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Larry Bomar (Bomar) appeals from the order of the Ninth Judicial District Court, Glacier County, dismissing his petition for postconviction relief, which alleged ineffective assistance of his trial counsel. We affirm and address the following issue:

¶ 2 Did the District Court err by dismissing Bomar's postconviction petition?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 In 2005, Bomar was charged with attempted sexual intercourse without consent and sexual assault, both felonies, upon K.J. The crimes were alleged to have occurred in 2000, when K.J. was six years old. K.J. was twelve years old at the time the trial was conducted in November, 2005. Bomar was represented by Daniel Donovan and Jeremy Yellin. The jury convicted Bomar of sexual assault and acquitted him of attempted sexual intercourse without consent. He was sentencedto twenty-seven years at the Montana State Prison with twelve years suspended.

¶ 4 Bomar appealed the conviction, and this Court affirmed. State v. Bomar, 2008 MT 91, 342 Mont. 281, 182 P.3d 47. We rejected Bomar's argument that there was insufficient evidence to support his conviction and declined to reach his arguments concerning the testimony of the State's expert witness, Rochelle Beley (Beley), on grounds that his arguments were waived for failing to timely raise them in the District Court. Bomar, ¶¶ 27, 33–41. Bomar thereafter filed a pro se petition for postconviction relief and was appointed counsel by the District Court to represent him in the proceeding. Bomar's counsel filed a supplemental brief in support of the petition, arguing that Bomar's trial counsel had rendered ineffective assistance by, inter alia, failing to present exculpatory medical evidence and failing to present adequate expert testimony to challenge the qualifications and testimony of Beley. The District Court conducted an evidentiary hearing and thereafter dismissed the petition. Bomar appeals. Additional facts will be discussed herein.

STANDARD OF REVIEW

¶ 5 In postconviction relief proceedings, we review a district court's findings of fact to determine if they are clearly erroneous. We review its conclusions of law to determine if they are correct. Rogers v. State, 2011 MT 105, ¶ 12, 360 Mont. 334, 253 P.3d 889. “Ineffective assistance of counsel claims present mixed questions of law and fact that the Court reviews de novo.” Rogers, ¶ 12. A petitioner seeking to reverse a district court's order denying postconviction relief based on ineffective assistance of counsel has a heavy burden. State v. Morgan, 2003 MT 193, ¶ 9, 316 Mont. 509, 74 P.3d 1047.

DISCUSSION

¶ 6 Did the District Court err by dismissing Bomar's postconviction petition?

¶ 7 When evaluating a claim of ineffective assistance of counsel, we use the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. Under the first prong of the Strickland test, “the defendant must show that counsel's representation fell below an objective standard of reasonableness.” Whitlow, ¶ 14 (quoting Strickland, 466 U.S. at 687–88, 104 S.Ct. at 2064). “ ‘There is a strong presumption with regard to the first prong of the Strickland test that trial counsel's performance was based on sound trial strategy and falls within the broad range of reasonable professional conduct.’ ” Whitlow, ¶ 21 (citations omitted). “In order to eliminate the distorting effects of hindsight, we have explained that judicial scrutiny of counsel's performance must be highly deferential.” Worthan v. State, 2010 MT 98, ¶ 10, 356 Mont. 206, 232 P.3d 380 (citing Whitlow, ¶ 15). The burden of establishing the first prong “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Whitlow, ¶ 10 (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064).

¶ 8 Under the second prong, the defendant must show that counsel's performance prejudiced the defense. Whitlow, ¶ 10 (citing State v. Racz, 2007 MT 244, ¶ 22, 339 Mont. 218, 168 P.3d 685). “The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. The defendant must prove both prongs in order to succeed on his ineffective assistance of counsel claim; therefore, if a defendant makes an insufficient showing regarding one prong of the test, there is no need to address the other prong. Whitlow, ¶ 11 (citing Adams v. State, 2007 MT 35, ¶ 22, 336 Mont. 63, 153 P.3d 601).

¶ 9 Bomar argues his trial attorneys were ineffective by failing to adequately challenge Beley's expert testimony and by failing to offer exculpatory medical evidence that was referenced during the defense's opening statement.

A. Failure to rebut testimony of the State's expert.

¶ 10 The incident giving rise to the charges was alleged to have occurred in Montana in July of 2000, when K.J. was six years old. The record indicates that K.J., who resides in Oregon, did not speak about the incident until December of 2001. After she told her mother what had happened, an Oregon police detective interviewed K.J. at her school. The detective did not record the conversation with K.J., but he took notes during the interview. A medical examination was performed upon K.J. at a child advocacy center that revealed no signs of vaginal trauma or physical injury. She was also interviewed by medical personnel at the advocacy center. Bomar was thereafter charged. ¹

¶ 11 Prior to trial, Bomar's attorneys filed several motions in limine, “four of which pertained to K.J.'s out-of-court statements, Beley's anticipated expert testimony or both.” Bomar, ¶ 30. Beley, a therapist with a Master's Degree in Marriage and Family Therapy, was expected to testify concerning the credibility of K.J.'s statements to the Oregon detective and to the medical personnel at the child advocacy center, based upon a Statement Validity Assessment (SVA) ² completed by Beley. Bomar's counsel requested a hearing on their motions in limine. The District Court indicated that it did not have time for a hearing and that it assumed that the motions could be decided on the briefs. Counsel agreed that the District Court could decide the motions on the briefs. See Bomar, ¶ 32. The District Court granted Bomar's motion to preclude Beley from testifying about the ultimate issue of whether K.J. was truthful and reserved ruling on other issues concerning Beley's anticipated testimony until trial.

¶ 12 The court held an in-chambers hearing during the trial to address Beley's anticipated trial testimony. Beley testified she had received training on conducting SVAs and that she was familiar with the vast body of research on SVAs. She testified that an in-person interview or recording of the child's interview was preferable but was not necessary if the interviewer had written down how the questions were asked and the responses of the child.

¶ 13 Defense counsel hired two experts, Dr. Donna Zook and Dr. Michael Scolotti, who ultimately expressed strong disagreement with Beley's opinion that an in-person interview with the child or some sort of verbatim documentation of the interview was not necessary. Neither Zook nor Scolotti testified at the in-chambers hearing, although Bomar's counsel extensively cross-examined Beley about her testimony, focusing on Beley's failure to personally interview the child. Counsel then argued to the court that Beley did not have adequate credentials to qualify as an expert and that her flawed methodology required exclusion of her testimony.

¶ 14 The District Court denied the defense's motions, ruling that Beley had satisfied the Scheffelman³ requirements and could testify at trial. The District Court permitted Beley to testify from her assessment about the factors that indicated truthfulness in K.J.'s statements to the detective and medical personnel, but it excluded any testimony about whether K.J. was in fact truthful or not truthful. Beley thus testified to the jury that “many of [K.J.]'s statements were consistent with the research, which shows valid statements of sexual abuse.” Defense counsel cross-examined Beley about her failure to personally interview K.J. and the absence of a recording of the interview. Counsel elicited from Beley the concession that the accuracy of her assessment depended upon K.J.'s statements being accurately reported by the detective and the medical personnel.

¶ 15 After the State rested, defense counsel moved to strike Beley's testimony and for an instruction that the jury was to disregard the testimony or, alternatively, for a mistrial. The court denied the motion. The defense then called Dr. Zook, who testified that Beley's SVA was flawed. When asked which procedures necessary for a valid SVA Beley had failed to follow, Dr. Zook responded “[t]he most significant is that she did not interview the child face-to-face.”

¶ 16 After Bomar was convicted of sexual assault, he moved for a new trial supported by an affidavit from Dr. Scolotti expressing Scolotti's disagreement with Beley's methodology and opining that her SVA was invalid because of the failure to have, at least, a verbatim transcript of the interviews. The District Court denied the...