State v. Ward

399 Mont. 16

457 P.3d 955

2020 MT 36

STATE of Montana, Plaintiff and Appellee,

v.Shawn Joseph WARD, Defendant and Appellant.

DA 17-0494

Supreme Court of Montana.

Submitted on Briefs: August 21, 2019

Decided: February 11, 2020

For Appellant: Chad Wright, Appellate Defender, Michael Marchesini, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana, Leo Gallagher, Lewis and Clark County Attorney, Fallon Stanton, Deputy County Attorney, Helena, Montana

Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Defendant Shawn Joseph Ward appeals from the June 8, 2017 Judgment and Commitment of the First Judicial District Court, Lewis and Clark County, following his conviction of Partner Family Member Assault (PFMA). We address the following issues on appeal:

Issue One: Whether Ward received ineffective assistance of counsel.

Issue Two: Whether the record establishes that the District Court allowed testimonial material into the jury room during deliberations.

¶2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 The State charged Ward with PFMA, a felony, in violation of § 45-5-206(1)(a), MCA, and Criminal Endangerment, a felony, in violation of § 45-5-207(1), MCA. He was tried by jury on March 20-21, 2017. The charges stem from an incident involving Ward, his partner Chariot, and their eight-month old baby. On January 17, 2016, Ward’s neighbors overheard loud arguing, thuds, and a baby crying coming from the upstairs apartment where Ward and Chariot lived. The neighbors went up to Ward’s apartment out of concern for Chariot’s and the baby’s safety and called law enforcement.

¶4 During law enforcement’s investigation, Chariot gave three separate interviews. Her first interview was with Officer Haven of the Helena Police Department, who had initially responded to the incident. He testified at trial that Chariot admitted she and Ward had been arguing but denied that Ward had hit her. During his testimony, Officer Haven stated he did not observe any injuries to Chariot, but he was unsure if she was wearing any makeup. Officer Haven also described Chariot’s calm demeanor during his interview and did not observe any signs that she was intoxicated.

¶5 Officer Haven testified that Chariot had warned Ward the neighbors had called law enforcement, and Ward left the apartment. As Officer Haven was speaking with Chariot, Ward called her and agreed to speak to Officer Haven on the phone. Officer Haven was able to convince Ward to return to the apartment. Officer Haven testified that when Ward returned, he determined that Ward had been drinking. Ward denied that he had hit Chariot, but acknowledged he was not supposed to be drinking because he was on probation. Officer Haven decided not to arrest Ward for PFMA, but instead for violating his probation.

¶6 The next morning, Chariot called law enforcement and requested a follow-up interview. Officer Tangen responded to Ward and Chariot’s apartment and recorded his interview with her on his body camera. During the interview, Chariot told Officer Tangen that she did not want to get Ward in trouble but stated that "[Ward] beat the shit out of me." She then described to Officer Tangen how Ward struck her in the face multiple times, grabbed her hair, threw her to the ground, and kicked her. Chariot told Officer Tangen that she had not consumed alcohol the night of the incident. Officer Tangen testified at trial that he observed during the interview that Chariot’s face was "black, swollen, [and] bruised." Chariot also told him that she had applied makeup to conceal her injuries before Officer Haven arrived. Officer Tangen testified that he did not observe any signs that Chariot was intoxicated.

¶7 A few days after the incident, Chariot was interviewed again by Detective Shanks. A Helena Friendship Center victim advocate was also present during this interview. The interview was recorded. Detective Shanks testified that he did not observe any bruising on Chariot’s face during the interview, but he noticed she was wearing a thick layer of makeup. During the interview, Chariot stated that Ward grabbed her by the hair, kicked her, and struck her repeatedly, and she did not see how Ward could deny assaulting her. She told Detective Shanks she was intoxicated the night of the incident.

¶8 Prior to trial, Ward’s first attorney filed a motion in limine to prohibit the State from mentioning Ward’s prior criminal history, that Ward was on probation at the time of the charged offense, and any other alleged illegal conduct by Ward not charged or at issue in the case. The State did not object, and the District Court granted the motion.

¶9 Ward was appointed new counsel two months before trial. On the first day of trial, the State informed the District Court that it would be difficult to avoid the fact that Ward had been arrested the night of the incident because he was in violation of his probation for drinking. Ward’s new counsel stipulated to the State introducing evidence that Ward "wasn’t supposed to be drinking," as long as his probation status was not explicitly mentioned. The District Court agreed and notified the parties it intended to issue a limiting instruction which was approved by both parties.

¶10 During trial, however, Ward’s counsel failed to object when Chariot testified that she was mad at Ward "for drinking while he was on probation." Ward’s counsel also failed to object when Officer Haven testified that Ward thought Chariot had told him during his investigation that "[Ward] had been drinking, [and] that he was on probation." Ward’s counsel also did not object when the State mentioned Ward’s probation status during opening statements and later elicited testimony in that regard. Ward’s counsel further stated multiple times that Ward was not supposed to be drinking at the time of the charged offense.

¶11 Chariot testified multiple times during trial that she had been drinking that night, and Ward did not cause her facial injuries. Chariot testified that the reason she told Officer Tangen the next day that Ward assaulted her was because she was mad at him for drinking while he was on probation and wanted to get Ward into trouble. She testified she was still drunk the morning she gave her interview with Officer Tangen. Chariot attributed her actions the night of the incident and the days after to her intoxication, anger, and mental health conditions. She also testified that Detective Shanks pressured her to say that Ward had assaulted her in the interview.

¶12 The State sought to introduce redacted audio and video recordings of Officer Tangen’s and Detective Shanks’ interviews with Chariot as evidence, arguing that these interviews were relevant to impeach Chariot’s testimony and as evidence of Chariot’s prior inconsistent statements. Ward’s counsel objected and argued that the interviews contained hearsay and prior bad acts evidence. The District Court overruled Ward’s counsel’s objections and admitted the redacted interviews into evidence, which were played for the jury. Transcriptions of the redacted interviews were prepared for the jury to follow along with the recordings. For purposes of appeal, the parties stipulated that unredacted copies of the interviews would be admitted into the record as Exhibits 24 and 25 but would not be shown to the jury.

¶13 After closing arguments, the parties engaged in further discussion regarding the redacted interviews. In relevant part, the following exchange between the District Court, the County Attorney, and Defense Counsel occurred:

THE COURT: I know that Exhibits 24 and 25 are not to go back into the jury room—or 17A, the transcription. There was another transcription that was essentially read to them, but it wasn’t offered into evidence. We can keep it as part of the Court’s record. But is there anything that you’re concerned with about going back? I guess, [Defense Counsel], is that—

[DEFENSE COUNSEL]: I mean, I think my biggest concern would be obviously the video that I’ve already objected to. I feel like having them watch that is going to place undue importance on those pieces of evidence, which I already objected— THE COURT: Okay.

[DEFENSE COUNSEL]: —to them in the first place.

THE COURT: So [the bailiff] ... once [the bailiff] puts the jury in the jury room, [the bailiff will] come back and collect that evidence and take it back.

[COUNTY ATTORNEY]: Maybe we can go through it with [the bailiff] just to make sure something’s not going back that [the bailiff] ought to hang onto.

THE COURT: Okay. If you could, I would appreciate that. All right. Thank you.

¶14 The jury found Ward guilty of PFMA, and not guilty of Criminal Endangerment.

STANDARDS OF REVIEW

¶15 Ineffective assistance of counsel (IAC) claims are mixed questions of fact and law that are reviewed de novo. State v. Hinshaw , 2018 MT 49, ¶ 8, 390 Mont. 372, 414 P.3d 271 ; State v. Larsen , 2018 MT 211, ¶ 6, 392 Mont. 401, 425 P.3d 694 ; State v. Weisweaver , 2010 MT 198, ¶ 7, 357 Mont. 384, 239 P.3d 952. We review IAC claims on direct appeal if the claims are based solely on the record. Hinshaw , ¶ 21 ; State v. Main , 2011 MT 123, ¶ 48, 360 Mont. 470, 255 P.3d 1240.

¶16 This Court reviews a district court’s decision on evidence that may be taken into the jury room during deliberations for an abuse of discretion. State v. Nordholm , 2019 MT 165, ¶ 8, 396 Mont. 384, 445 P.3d 799 (citing State v. Stout , 2010 MT 137, ¶ 29, 356 Mont. 468, 237 P.3d 37 ) (citation omitted). A district court abuses its discretion when "it acts arbitrarily, unreasonably, or without employing conscientious judgment, resulting in substantial injustice." Nordholm, ¶ 8 (citing State v. Hart , 2009 MT 268, ¶ 9, 352 Mont. 92, 214 P.3d 1273 ).

DISCUSSION

¶17 Issue One: Whether Ward received ineffective assistance of counsel.

¶18 In order to show IAC, "a defendant must prove both (1) that counsel’s performance was...