State v. Payne

2021 MT 256

STATE OF MONTANA, Plaintiff and Appellee, v. MICKEY RODNEY PAYNE, Defendant and Appellant.

No. DA 19-0371

Supreme Court of Montana

October 5, 2021

Submitted on Briefs: August 18, 2021

APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 16-713 Honorable Donald L. Harris, Presiding Judge

For Appellant: Laura M. Reed, Attorney at Law, Missoula, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Michael P. Dougherty, Assistant Attorney General, Helena, Montana

Scott D. Twito, Yellowstone County Attorney, Christopher A. Morris Deputy County Attorney, Billings, Montana

OPINION

JIM RICE JUSTICE

¶1 Mickey Rodney Payne (Payne) appeals from his bail-jumping conviction following a bench trial in the Thirteenth Judicial District Court. He challenges the District Court's granting of the State's Gillham motion to allow his former attorney to testify, and contends he received ineffective assistance of counsel by his former attorney's testimony and by the attorney's decision not to file a motion to continue the trials in Payne's underlying criminal matters, leading to the instant bail-jumping charge.

¶2 We affirm and address these issues:

1. Did the District Court err by allowing Payne's former attorney to testify as a state witness in his bail-jumping trial, and did the testimony violate Payne's right to effective assistance of counsel?

2. Alternatively, did Payne receive ineffective assistance of counsel when his former attorney failed to file a motion to continue the date of his trials in the underlying criminal cases?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Payne was charged with four counts of criminal mischief and one count of felony partner family member assault (PFMA), in violation of § 45-6-101, MCA, and § 45-5-206, MCA respectively. Two separate trials were set-one for the criminal mischief charges, DC 15-517, and one for the PFMA charge, DC 16-170. After multiple continuances, both trials were ultimately scheduled for July 19, 2016. On or about June 1, Payne was assigned new counsel, Lane Scheveck (Scheveck).

¶4 Payne's bail release conditions required him to remain in Montana but, in violation thereof, he traveled to California. Payne remained in California through July 19, 2016, and did not appear for his scheduled trials. Scheveck appeared alone on July 19 and made the following statement to the District Court:

Your Honor . . . I've had some communication with my client to the extent of trial. He has been informed of this hearing. Your Honor, he's informed me that he would not be here today, and I've talked to the [p]rosecution about this, they are well aware of Mr. Payne has…to the extent where he even -- he even called the [p]rosecution, asked them what's going on. I've been in contact with my client. That's all the information I can give you at this time. [(Emphasis added.)]

¶5 Thereafter, Payne was charged with two counts of bail-jumping in violation of § 45-7-308, MCA, one count for each scheduled trial he missed. Nicole Gallagher (Gallagher) was assigned as Payne's counsel for these charges and a bench trial was held on August 29, 2018. The State subpoenaed Scheveck to testify, and Scheveck responded by filing a motion to quash the subpoena. The possibility of Scheveck's testimony was raised at the beginning of the trial, and the State indicated an intention to call him as a rebuttal witness only if Payne testified in his own defense. Gallagher responded, "[w]e are still going to object to Mr. Scheveck's testimony regardless of any rebuttal witness categorization. Mr. Payne is the one that holds the privilege, and he does not waive that privilege." The District Court reserved ruling on the admissibility of Scheveck's testimony pending the State's call at trial.

¶6 During the trial, Payne elected to testify. The District Court excused the prosecution from the courtroom and addressed Payne and his counsel, first instructing Payne that he had the absolute right not to testify. The District Court then further warned Payne that his testimony could lead to waiver of the attorney-client privilege:

[T]here's a distinct possibility that you will waive the attorney-client privilege, and what I want you to understand is, is that on the attorney-client privilege, you can't just open that door a little bit; if you open that door a little bit, you open it the whole way as to the topic that the privilege applies so I just want to make sure that you had adequate opportunity to discuss these ramifications with your counsel; have you, sir?

Payne and his counsel affirmed that he understood the risks of testifying, and Payne elected to proceed.

¶7 Payne testified regarding his communication with Scheveck leading up to the missed trials on July 19. He testified that he had not received the mailed written notices of his July 2016 trial date, and despite speaking to Scheveck on the phone "several times," was not advised of his trial date by Scheveck until it was "coming up later that week." Payne testified Scheveck had not given enough notice for Payne to make it to the trial, and that he was not provided the specifics of his required appearance, such that even if he had physically been in Billings, he would not have known "what time to show up and exactly where." He asserted he told Scheveck he was currently in California addressing other legal matters and asked Scheveck to "see if he could get a continuance for the court date." Payne said he asked Scheveck whether Payne could contact the prosecuting attorney, about which Scheveck allegedly "directed [him] to the district attorney's office." Scheveck later denied during his own testimony that he gave Payne information about contacting the prosecution. Prosecutor Bob Spoja testified that Payne contacted him prior to the trials and asked him if there was a way to make his case "go away," and that Spoja had advised him to contact his attorney and made clear it was necessary for him to appear for his trials. Spoja testified that he was sure he had "[told] [Payne] the specific date and time of [his] trials" during their conversation.

¶8 After the defense rested, the State called Scheveck as a rebuttal witness. The State moved the District Court for a Gillham^[1] order to protect Scheveck from liability for his testimony, and argued:

Mr. Payne has just [] called into ineffective assistance of counsel to Mr. Schveck [sic] in his representation in failing to notify [] him of this trial. . . . [T]he State's intention is not to talk about the full representation, of course, or any case facts, simply the fact that he had been in contact with his client and the work he did to notify him of it, because Mr. Payne has said he provided insufficient notice of trial.

The District Court asked for Payne's response to the motion. Gallagher replied, "No Objection, Your Honor," and the District Court granted the motion.

¶9 At the beginning of Scheveck's testimony, after he had withdrawn his motion to quash the subpoena but before he answered any questions about his communications with Payne the District Court stated, "I want to make clear for the record that the Defense is not objecting to Mr. Scheveck's testimony at this time; is that correct?" Gallagher stated, "That's correct, Your Honor."

¶10 Scheveck testified he did not currently have access to his case files or notes he made while working for the Office of the Public Defender, and thus testified from his unassisted memory of events that occurred approximately two years prior to trial. Perhaps that reason contributed to Scheveck's testimony being at times equivocal, nonresponsive, or contradictory.

¶11 Scheveck testified that most of his communication had been with Payne's mother, speaking to Payne only a "handful of times." Scheveck said he mentioned to Payne his intention to move for a continuance, ^[2] but at that time he did not know the date of the trials. Under examination by the State, Scheveck testified:

Q. And so did you tell Mr. Payne's mother that he had the upcoming trial dates of July 19th?

A. I believe so. When I first spoke with Mr. Payne, I informed him that we were going to file a motion to continue, but I did not know the actual date yet, but when I did find out what the date was, I informed his mother of that date.

Q. And so but you did know the date set for DC 15-[]517 as that order was issued May 3rd so you would have known that date.

A. I would have known that date if I was assigned counsel on the 1st of June.

Q. And would your usual practice have been to say we have trial on this date in this case?

A. I don't know with that one.

¶12 Scheveck testified he talked with Payne's mother about the July 19 trial date and asked her to tell Payne to call him, and that Payne needed to sign a speedy trial waiver to support a continuance. After that conversation, Scheveck did not have contact with Payne about the date and never received a signed waiver. Scheveck explained that he did not file the motion for continuance in part because he believed that the district judge assigned to the case would only grant a continuance if accompanied by a signed waiver and, with Payne being in violation of his release conditions and having left the state, it was highly unlikely a continuance would be granted, even with a signed waiver. When questioned by defense counsel, Scheveck admitted he did not send a waiver for Payne to sign, either by obtaining a physical or email address, or through Payne's mother. Payne and Scheveck's testimonies regarding when and how often they were in contact contradicted each other at trial. The District Court asked Scheveck to verify the accuracy of the statement he had made about Payne's absence when he...