No. 03-366
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 79N
DARELL McDONALD,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Third Judicial District,
In and For the County of Granite, Cause No. DC 97-08,
Honorable Ted L. Mizner, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; John Paulson, Assistant
Attorney General, Helena, Montana
Blaine C. Bradshaw, County Attorney, Philipsburg, Montana
Submitted on Briefs: February 17, 2004
Decided: March 30, 2004
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. It shall be filed as
a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of nonciteable cases issued by this Court.
¶2 Darell McDonald’s conviction stems from his actions in November of 1996.
McDonald and his friend, Tucker, fired over a dozen shots at a herd of twenty elk that were
grazing in a fenced pasture near several hundred cattle. After a trial, the Granite County
Justice Court found McDonald guilty of: (1) hunting a bull elk without a proper license; (2)
failure to wear the required orange-colored garments while hunting; (3) five counts of
hunting more than one game animal; and (4) creating a hazard in the act of game hunting.
McDonald appealed to the District Court, and after a jury trial, with the exception of one of
the counts of hunting more than one game animal, was found guilty on each of the same
counts. With new counsel, McDonald appealed to this Court, claiming “plain error” owing
to comments of the prosecutor during his closing argument. We rejected this claim in our
decision State v. McDonald, 2000 MT 49N. McDonald petitioned the District Court for
postconviction relief, claiming ineffective assistance of counsel at trial and on appeal, and
that his consecutive sentences should be concurrent. The District Court denied his petition.
He now appeals that denial. We affirm.
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¶3 For the most part, McDonald’s claims of ineffective assistance of appellate counsel
hinge on his assumption that his trial counsel was ineffective. According to McDonald, his
appellate counsel was ineffective for failing to raise a claim of ineffective assistance of trial
counsel. Thus, in order to understand his claim of ineffective assistance of counsel on
appeal, we first address whether McDonald suffered from ineffective assistance of counsel
at the trial level.
¶4 We have adopted the two-part test from Strickland v. Washington (1984), 466 U.S.
668,
104 S.Ct. 2052,
80 L.Ed.2d 691, to measure whether the assistance of counsel was
effective. State v. Boyer (1985),
215 Mont. 143, 147,
695 P.2d 829, 831. Under the first
part, the petitioner must show that counsel’s performance was deficient. We apply a highly
deferential standard to review the strategic decisions an attorney must make during the trial
process. We indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance. Under the second part of the Strickland test, a
petitioner must prove that the ineffective assistance of counsel caused him to suffer
prejudice. If either part of the Strickland test would be dispositive, we need only address that
part of the test. We only address the first part of Strickland on each of McDonald’s claims.
¶5 McDonald claims that his trial counsel was ineffective in several discrete instances.
First, McDonald claims that his trial counsel had an inherent conflict of interest from his
continued representation of both McDonald and Tucker. According to McDonald, the dual
representation precluded him from asserting his own innocence independently of Tucker’s
guilt or innocence. Although trial counsel did not specifically discuss this aspect of dual
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representation, he did confer with McDonald and Tucker on several occasions about whether
or not they both wanted to continue with him as their counsel. In response, both McDonald
and Tucker continued to assert that they were both completely innocent and that their version
of events would corroborate their mutual innocence. Further, when McDonald brought up
the possibility of obtaining another attorney, trial counsel encouraged him to do so. When
the county attorney wanted to cut a deal with Tucker in return for testimony against
McDonald, trial counsel presented this issue to both Tucker and McDonald, individually and
jointly. However, they both decided to continue to assert their mutual innocence and to
continue with him as their counsel. Thus, although there was potential for a conflict of
interest, there was never an actual conflict of interest.
¶6 Secondly, McDonald claims that trial counsel was ineffective because he failed to
interview all of the potential witnesses or failed to meet the professional standard for
interviewing witnesses. McDonald’s trial counsel explained that many of McDonald’s
proposed witnesses did not have direct knowledge of the event. Trial counsel, his associate,
or his paralegal contacted every potential witness with direct knowledge of the event.
McDonald also claims that trial counsel was somehow ineffective in interviewing Bryan
Butler, who McDonald wanted to use as an expert in ballistics. Trial counsel presented
Butler’s deposition testimony, that Butler could identify the caliber of a given bullet based
on his personal experience in reloading. The District Court refused to consider Butler an
expert. McDonald claims that trial counsel somehow failed to sufficiently develop Butler’s
credentials as an expert. However, McDonald fails to make a showing that Butler had
sufficient credentials to be considered an expert. McDonald also claims trial counsel failed
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to interview witness White, who testified for the State. While trial counsel admitted to not
interviewing White until the day of trial, he already had White’s prepared written statement
and thus, was prepared for him at trial.
¶7 Third, McDonald claims his counsel was ineffective for failing to raise an issue about
the State’s failure to preserve exculpatory evidence. McDonald had attempted to give the
warden a bullet which McDonald had allegedly taken out of the carcass of the elk that he
admitted to shooting. The warden, however, refused to accept the bullet. McDonald claims
that analysis of the bullet would have proven that it was dissimilar to the bullets from the
other five elk that he was charged with killing and would have thus exonerated him.
Accordingly, he contends counsel was ineffective for failing to make an issue of the State’s
refusal to preserve exculpatory evidence. However, McDonald’s trial counsel makes clear
that he considered the issue, and due to problems with the chain of custody of the bullet,
declined to raise it as an issue.
¶8 McDonald also claims that his trial counsel erred in failing to request either a directed
verdict or a dismissal of the charge of hunting a bull elk without a license. The warden
testified at trial that while the spike elk had several wounds, they were only from one bullet.
McDonald argues that in order to be guilty of “hunting” an animal, you must kill the animal.
Thus, where the spike was killed by one bullet, logic dictates that only one of the defendants
can be found to have “hunted” it. Our statutory definition of hunting is much broader than
the narrow “successful killing” interpretation that McDonald advocates:
“Hunt” means to pursue, shoot, wound, kill, chase, lure, possess, or capture
or the act of a person possessing a weapon, as defined in 45-2-101, or using
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a dog or a bird of prey for the purpose of shooting, wounding, killing,
possessing, or capturing wildlife protected by the laws of this state in any
location that wildlife may inhabit, whether or not the wildlife is then or
subsequently taken. The term includes an attempt to take by any means,
including but not limited to pursuing, shooting, wounding, killing, chasing,
luring, possessing, or capturing.
Section 87-2-101(8), MCA (1995) (emphasis added). McDonald’s trial counsel reasonably
interpreted the statute to include the “hunting” activities of McDonald and Tucker. He thus
refused to make what he decided would be a meritless or frivolous motion–once again, a
strategic decision. Making another claim, McDonald similarly argues he could not have been
convicted of four counts of hunting more than one game animal, because one of the cow elk
had only one bullet. This claim is identical to his argument about shooting the spike bull elk.
As the discussion indicates, each of the decisions of trial counsel which McDonald now
faults was a strategic decision.
¶9 The record establishes that McDonald was, in the words of his trial counsel, an
“exasperating and demanding client” with a high degree of involvement in his case. In each
of the above-claimed instances of ineffective assistance, McDonald’s trial counsel conferred
with McDonald in regard to the decision at issue. The record establishes that each of these
issues was discussed with McDonald and that a strategic decision was made about each.
Thus, rather than a situation where counsel failed to take any action through negligence, or
ignorance of the law, we are presented with strategic decisions. The Strickland test does not
allow us to second guess strategic decisions. Rather, we give a high deference to counsel’s
strategic decisions. Therefore, we conclude that McDonald’s counsel at trial was not
ineffective.
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¶10 McDonald also claims that his counsel on appeal was ineffective. Just as he did in
regard to his trial counsel, McDonald also complains about strategic decisions made by his
appellate counsel. McDonald’s appellate counsel reviewed the case and McDonald’s claims
of error. Appellate counsel then made a strategic decision to appeal only one issue, the plain
error doctrine, which he said was done, in part, to encompass McDonald’s assertions of
ineffective assistance of trial counsel in failing to object to the prosecutor’s closing
argument. Because McDonald has failed to show that appellate counsel made this decision
through neglect, or through ignorance of the law, we conclude that counsel made an
informed and strategic decision to raise the single, best claim that he could. See Jones v.
Barnes (1983), 463 U.S. 745, 750-54,
103 S.Ct. 3308, 3312-14,
77 L.Ed.2d 987, 992-95.
Thus, rather than address the merits of each of the other issues McDonald claims should have
been raised, we only address counsel’s decision to raise one single issue. We give such
decisions great deference and conclude that appellate counsel was not ineffective in this
regard.
¶11 However, McDonald also claims that appellate counsel, in failing to raise a
constitutional challenge to § 45-8-113, MCA, acted in ignorance or under a mistake of law,
in which case the decision deserves no deference. McDonald claims that § 45-8-113, MCA
(1995), is unconstitutionally vague and ambiguous. That section provides: “ (1) A person
commits the offense of creating a hazard if he knowingly: . . . (e) being a person in the act
of game hunting, acts in a negligent manner or knowingly fails to give all reasonable
assistance to any person whom he has injured[.]” Section 45-8-113(1)(e), MCA (1995).
Neither McDonald’s trial counsel nor appellate counsel viewed this statute as unconstitu-
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tional. On appeal, McDonald claims both counsel were ineffective for failing to challenge
the statute as unconstitutionally vague or ambiguous. We disagree. The statute at issue here
uses the recognized legal standard of negligence. It is sufficiently written such that a person
of ordinary intelligence would reasonably know the statute makes it illegal to indiscrimi-
nately shoot at a herd of twenty elk feeding in a pasture alongside a herd of domestic cattle.
Neither McDonald’s trial counsel nor his appellate counsel was operating in ignorance or
under a mistake of law, and neither was ineffective for failing to raise this claim.
¶12 Lastly, McDonald claims the District Court erred in failing to address his petition to
change his consecutive sentences to concurrent sentences. However, McDonald could have
properly raised such a claim in his direct appeal. He is now precluded from raising the issue
on his petition for postconviction relief. Section 46-21-105, MCA. Therefore, the District
Court did not need to address this issue. The order of the District Court is affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ JAMES C. NELSON
/S/ JOHN WARNER
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