State v. Howard

389 Mont. 356

405 P.3d 1263

2017 MT 285

STATE of Montana, Plaintiff and Appellee,

v.Barton HOWARD, Defendant and Appellant.

DA 15-0629

Supreme Court of Montana.

Submitted on Briefs: September 20, 2017

Decided: November 21, 2017

For Appellant: Chad M. Wright, Chief Appellate Defender; Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General; Helena, Montana, Bernard Cassidy, Lincoln County Attorney; Libby, Montana

Justice Jim Rice delivered the Opinion of the Court.

¶ 1 Barton Howard (Howard) appeals from the judgment entered by the Nineteenth Judicial District Court, Lincoln County, convicting him of Criminal Endangerment under § 45-5-207, MCA. We affirm, addressing the following issues:

1. Is Howard's claim of judicial bias reviewable for plain error?

2. Is Howard's claim of ineffective assistance of counsel reviewable on direct appeal?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 On March 31, 2014, at around 11:45 p.m., Debbie Wiherski called 911 to report her 72-year-old husband, Jerome Wiherski (Wiherski), had been attacked at their home. Lincoln County Sheriff's officers responded to the residence and observed Wiherski had suffered substantial injuries, including a swollen eye, broken nose, head injuries, and a swollen right abdomen. Wiherski told officers that someone had knocked on his door and, when he opened it, pulled him onto the porch and beat him, then kicked him while he was on the ground. The officers established that Howard was the potential attacker, and drove to his residence. They interviewed Howard without giving him a Miranda¹ warning. Howard admitted attacking Wiherski in retaliation for Wiherski's alleged attempt to sexually assault Howard's partner. Howard confirmed that Wiherski was on the ground during the attack and did not fight back. This conversation was captured on an officer's pocket recorder.

¶ 3 The State charged Howard with aggravated assault, and the Honorable James B. Wheelis presided over the case. On May 5, 2014, Noel Larivee from the Office of the State Public Defender (OPD) appeared as Howard's counsel at the arraignment. At the omnibus hearing, Larivee raised the affirmative defense of justifiable use of force. On June 30, Scott Hilderman, private counsel, filed a notice of substitution of counsel as Howard's new counsel of record. Hilderman filed a motion to suppress, arguing Howard's statements to police were not voluntary and his Miranda rights had been violated. Hilderman subsequently moved to vacate the hearing on the motion and instead requested a change of plea hearing. However, at the change of plea hearing on January 5, 2015, Howard changed his mind and decided not to change his plea to the charge. Thus, the matter was put back on the trial calendar.

¶ 4 On January 15, Hilderman filed an unopposed motion to withdraw as counsel, to which Howard had consented. The District Court granted the motion to withdraw, and on January 26 conducted a hearing to discuss Howard's representation. The District Court asked, "Mr. Howard, as far as I recall, you are now representing yourself, correct?" Howard replied, "Yes, Sir." The District Court offered only a brief admonition about some of the dangers of self-representation, following which Howard decided he wanted representation by a public defender.² He thereafter filed a motion for appointment of counsel. However, at a March 2 status conference, Howard changed his mind, stating he only wanted standby counsel. The District Court told Howard that he either had to represent himself or be represented by an attorney from the OPD. Howard chose to represent himself, which the District Court permitted following a warning to Howard about the dangers of self-representation based upon Faretta.

¶ 5 Howard filed a Motion to Compel Discovery, claiming difficulty getting his case files from prior counsel, although he did not explicitly claim ineffective assistance of counsel. The State filed for issuance of Gillham³ protective orders to allow Hilderman and Larivee to advise the Court what discovery information they had provided to Howard. Over Howard's objection, the District Court issued the Gillham orders and heard testimony from Larivee, who testified he provided Howard all the discovery materials in his possession as well as copies of correspondences between him and Howard. During the hearing, Larivee directly questioned Howard to confirm that Larivee provided all the discovery documents to Howard, during which Howard confirmed that Larivee's testimony was correct and stated that he was more concerned with Hilderman's representation than Larivee's representation.

¶ 6 Representing himself, Howard filed a motion to suppress his statement to law enforcement given at his residence, wherein he reasserted the Miranda claim and added an allegation that the State had tampered with the audio recording. Howard included a report from Primeau Forensics, which opined that, although the recording of Howard's statement might have been part of a longer recording session, it could not determine whether there had been interruptions in recording, and that an examination of the original recording may provide additional information. The court held a suppression hearing on the motion and appointed counsel to represent Howard for purposes of the hearing. Attorney Charles Sprinkle appeared as counsel.⁴ The court thereafter denied the motion, finding Howard's statement to police was admissible because he was not in custody for Miranda purposes when he admitted to assaulting Wiherski. The court also found the recording had not been edited and concluded sufficient foundation supported its admission.

¶ 7 Howard also filed a motion to dismiss, alleging the Information failed to establish probable cause he committed aggravated assault.

The court denied the motion, concluding there was probable cause that Howard committed the offense.

¶ 8 On March 19, OPD notified the court that Timothy Baldwin would thereafter represent Howard. Baldwin submitted several pleadings and motions that were opposed by the State, and for which the District Court conducted a hearing attended by Baldwin but not by Howard. The District Court ruled it would exclude Howard's audio recording expert because the expert could not verify that the recording had been altered in any way. Baldwin's motion to preclude the testimony of physician assistant Joseph Chopyak concerning the nature of Wiherski's injuries, because he was not qualified to offer an opinion, was denied by the District Court, which found that the "scope of Chopyak's licensure in his medical practice does not limit his capacity to testify as an expert on the scope, extent, nature, course, and duration" of Wiherski's injuries. Baldwin filed an amended witness list, naming Howard's father, Robert Howard, with the explanation that Robert would testify "regarding the time of day that the defendant was with him on the date of the alleged assault," an apparent alibi defense. The State moved to exclude alibi evidence because the defense was not raised at the omnibus hearing. Baldwin did not object to the State's motion, but stated that Howard was requesting that he pursue the issue. Baldwin then made the following statement during the hearing:

COURT:... [O]n the State's motion about precluding the Defendant from raising an alibi defense and calling Robert Howard, any argument about that?

BALDWIN: Your Honor, I need to put something on the record so the Court can make a ruling based on what I am presenting. I don't object to the State's motion with regard to an alibi. Without revealing client/attorney confidential information, I need to put the Court on notice that there is a potential that Mr. Howard will want to testify at the trial regarding an alibi. I am not going to ask the questions regarding an alibi, and so if Mr. Howard insists on testifying in that regard, I would have to ask the Court that he be able to testify in a narrative fashion. Because, I again, I'm not going to ask those kinds of questions, nor am I going to be arguing that defense theme at trial. But I think that as a matter of record the Court probably has to make a ruling as to if he does intend to do that what the Court will instruct either him or the jury on that issue.

COURT: I don't know if I would let him be called as a witness based on the information that you have offered that's been offered. And I understand that you have a duty to your client to proceed, but on the other hand, my rulings at this stage would be that an alibi is too late. So if he intends, makes it known that he intends to testify regarding alibi, then I would keep him off the stand.

BALDWIN: Okay.

COURT: If there are other issues he might want to testify about, I don't know what they would be but that would be different.

¶ 9 On May 19, Baldwin requested a hearing because Howard wanted to represent himself and have Baldwin assigned as standby counsel. On May 21, the court held a hearing. Howard was late and the District Court began the proceeding in his absence. Howard ultimately appeared and confirmed that he wanted to represent himself. The District Court explained that if, on the day of trial, Howard wanted to represent himself, standby counsel would not be permitted. The District Court provided Faretta warnings about the rights Howard was waiving by proceeding pro se, reminded him of Baldwin's limited role, and confirmed Howard's decision to represent himself was knowing and voluntary.

¶ 10 On May 26, the jury trial began. During the pretrial conference, the State moved to exclude Robert Howard's testimony because it was unable to arrange an interview with Robert. The court granted the request. Howard then notified the court he wanted Baldwin's legal representation, explaining that his self-representation was premised upon a trial strategy involving calling Robert to testify, which had now been denied. Baldwin was called to again represent Howard.

¶ 11 Before...