State v. Root

381 Mont. 314

359 P.3d 1088

2015 MT 310

STATE of Montana, Plaintiff and Appellee

v.Michael Jeffery ROOT, Defendant and Appellant.

No. DA 13–0667.

Supreme Court of Montana.

Submitted on Briefs Aug. 19, 2015.

Decided Oct. 27, 2015.

For Appellant: Wade Zolynski, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana, Eileen Joyce, Silver Bow County Attorney, Samm Cox, Mike Clague, Deputy County Attorneys, Butte, Montana.

Opinion

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 Michael Root appeals from his February 2013 conviction after a jury trial of the offense of attempted deliberate homicide. We affirm.

¶ 2 Root presents the following issues for review:

¶ 3 Issue One: Whether Root's attorney was ineffective for not requesting an accomplice instruction.

¶ 4 Issue Two: Whether the District Court erred in denying Root's motion to dismiss based upon the prosecution's failure to disclose a video statement of a witness.

BACKGROUND

¶ 5 This case began with events in Butte, Montana, on July 27, 2012, that resulted in Lawrence Lee being stabbed in the arm and neck and cut on his hand. This happened after defendant Root and a juvenile referred to as S.R. entered Lee's pickup truck and asked for a ride up the hill to Walkerville. Lee testified at trial that as the trio motored to and through Walkerville, Root pulled a knife and stabbed and cut him and said “This is for Jennifer Marshall.” Lee testified that as the truck slowed S.R. jumped out the passenger side door and he (Lee) struggled with Root and eventually forced him from the cab. Lee then tried unsuccessfully to hit both S.R. and Root by backing the truck into them. He left the scene, stopping at a house for assistance. He did not notify the police because “you know, it's Butte, you don't call the cops.”

¶ 6 S.R. testified that Root stabbed and cut Lee; that both he and Root ended up out of the truck trying to avoid Lee; and that both he and Root fled the scene. S.R. testified that he did not know Root or Lee, but that he saw the two together and offered them some weed if they would give him a ride to a house in Walkerville. S.R. testified that after he jumped out of the truck he looked back and saw Lee and Root struggling and saw that Lee had been stabbed. S.R. testified that after Root and S.R. were out of the truck, Lee backed up and tried to hit them. S.R. testified that after Lee left, he (S.R.) took the knife from Root and buried it because he was afraid for his safety.

¶ 7 Root testified that he did not stab and cut Lee, but that S.R. did. He said that he met S.R. earlier in the day and saw him later when Lee and S.R. pulled up in Lee's truck and the ride began. Root testified that Lee attacked S.R. in the truck, and that when that started he got out. Root testified that when he saw that Lee had a knife, he intervened and fought with Lee inside the truck. He said that S.R. then pulled him out of the truck and Lee tried to run them down. On appeal Root summarizes his defense at trial as based on the argument that “he was innocent of attempted homicide and that he didn't use a knife.”

STANDARD OF REVIEW

¶ 8 Claims of ineffective assistance of counsel present mixed questions of law and fact that we review de novo. State v. Green, 2009 MT 114, ¶ 14, 350 Mont. 141, 205 P.3d 798.

¶ 9 This Court reviews the denial of a motion to dismiss in a criminal case de novo to determine whether the decision was correct.

State v. Meredith, 2010 MT 27, ¶ 24, 355 Mont. 148, 226 P.3d 571.

DISCUSSION

¶ 10 Issue One: Whether Root's attorney was ineffective for not requesting an accomplice instruction.

¶ 11 This Court evaluates claims of ineffective assistance of counsel under the test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. First the defendant must show that his attorney's performance was deficient by demonstrating that it fell below an objective standard of reasonableness.Whitlow, ¶ 14. There is a strong presumption that the attorney's performance fell within the wide range of reasonable professional assistance, Whitlow, ¶ 15, because there are “countless ways to provide reasonable assistance in any given case.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

¶ 12 Second, the defendant must show that his attorney's deficient performance prejudiced the defense. Whitlow, ¶ 10. This requires a showing of 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. An ineffective assistance claim that cannot be determined from the facts in the record can be reviewed in a petition for postconviction relief. State v. Kougl, 2004 MT 243, ¶ 14, 323 Mont. 6, 97 P.3d 1095.

¶ 13 Root contends that his trial attorney should have requested a jury instruction that S.R. was legally accountable (an accomplice) for the charged offense and that his testimony must be viewed with distrust and must be corroborated. Sections 26–1–303(4) and 45–2–302, MCA. S.R. was not charged with any offense arising from this incident.

¶ 14 Even if an accomplice instruction could be given in a case if requested, an attorney does not necessarily provide ineffective assistance to his client by failing to request one. State v. Johnson, 257 Mont. 157, 162–63, 848 P.2d 496, 499 (1993) (where accomplice instruction conflicted with the defendant's claim that he did not commit the crime, not requesting an accomplice instruction was a “clear” tactical decision that did not support a claim of ineffective assistance). In this case Root's attorney did not provide ineffective assistance by not requesting an accomplice instruction because it would have conflicted with Root's defense that he did not stab Lee.

¶ 15 It is not proper to give an accountability/accomplice instruction where it is unsupported by the evidence and is inconsistent with the defendant's claim of innocence. State v. Hall, 2003 MT 253, ¶ 30, 317 Mont. 356, 77 P.3d 239. Even where there was clearly an accomplice, the trial court is not required to give the accomplice instruction in every case, and counsel is not ineffective for failing to request the instruction where it would be inconsistent with the theory of defense. Johnson, 257 Mont. at 162–63, 848 P.2d at 499. Defense counsel is responsible for making the tactical decision to forego an accomplice instruction where it would be inconsistent with the theory of defense. State v. Sheppard, 270 Mont. 122, 129–30, 890 P.2d 754, 758 (1995). In the case of an inconsistent defense, this Court on appeal can determine from the face of the record that defense counsel made a “clear” tactical decision that does not constitute ineffective assistance. Johnson, 257 Mont. at 163, 848 P.2d at 499 ; Kougl, ¶ 18.

¶ 16 Root claims that, while he did not stab Lee, he committed an offense (assault) by fighting with Lee and therefore he did not claim that he was “totally innocent.” However, he claims that S.R. was an accomplice in the attempted deliberate homicide, a charge for which Root denies any culpability. His attorney was faced with defending based upon Root's version of the events. Defense counsel's trial tactics are necessarily constrained by the facts and evidence that will be considered by the jury. State v. Morsette, 2013 MT 270, ¶ 21, 372 Mont. 38, 309 P.3d 978.

¶ 17 We conclude that the performance of Root's attorney did not fall below an objective standard of reasonableness, and was within the wide range of reasonable professional assistance, Whitlow, ¶¶ 14–15. The Sixth Amendment of the United States Constitution guarantees that counsel perform with reasonable competence, and that success is not the test of effective counsel. Root has not demonstrated that but for counsel's performance the result would have been different. Bomar v. State, 2012 MT 163, ¶¶ 19, 23, 365 Mont. 474, 285 P.3d 396. Therefore we determine that Root's attorney was not ineffective in failing to offer an accomplice instruction.

¶ 18 Issue Two: Whether the District Court erred in denying Root's motion to dismiss based upon the prosecution's failure to disclose a video statement of a witness.

¶ 19 Between the second and third days of trial the State provided the defense with a copy of a recording of an interview between police and a previously-disclosed witness named Lonnie Boyd. The next morning defense counsel moved the District Court to dismiss the charges on the ground that the late disclosure of the recording was a violation of Root's right to due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Under Brady, a criminal defendant has a due process right to obtain exculpatory evidence held by the prosecution. To prevail on a Brady violation the defendant must establish that the State possessed evidence favorable to the defense because of its exculpatory or impeachment value; that the prosecution willfully or inadvertently suppressed the evidence; and that suppression of the evidence prejudiced the accused. State v. Fish, 2009 MT 47, ¶ 20, 349 Mont. 286, 204 P.3d 681. However, a defendant's right to due process “is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense” and the defendant must demonstrate that the suppressed evidence “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435, 437, 115 S.Ct. 1555, 1566, 1567, 131 L.Ed.2d 490 (1995).

¶ 20 The District Court held a hearing out of the presence of the jury on Root's motion to dismiss. After argument from counsel the District Court denied the motion to dismiss, holding that the recording of the Boyd interview...