March 22 2016
DA 14-0584
Case Number: DA 14-0584
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 69
RUSTY LEE-RAY RUSSELL,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 10-480
Honorable Ingrid G. Gustafson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Elizabeth L. Griffing, Axilon Law Group, PLLC, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
Attorney General, Helena, Montana
Scott D. Twito, Yellowstone County Attorney, Ed Zink, Deputy County
Attorney, Billings, Montana
Submitted on Briefs: January 6, 2016
Decided: March 22, 2016
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Rusty Lee-Ray Russell appeals from the District Court’s Findings of Fact,
Conclusions of Law and Order dated July 7, 2014, denying his petition for postconviction
relief. We affirm.
¶2 We restate the issues on appeal as follows:
Issue One: Whether Russell received effective assistance of counsel at trial based
upon allegations that counsel failed to research and understand the principles of
felony murder; failed to properly move for dismissal of that charge; and failed to
offer proper instructions on felony murder.
Issue Two: Whether Russell received effective assistance of counsel on appeal
based upon allegations that counsel failed to understand the principles of felony
murder and failed to attack the sufficiency of the evidence to support a conviction
of that charge.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On April 25, 2005, Russell and an acquaintance named Spotted Wolf spent a day
“drinking across Billings.” In the middle of the night they went into an alley-type area
behind some buildings to continue drinking in a place where they would not be seen by
police. In the alley Spotted Wolf saw a sleeping transient (Wallin). Spotted Wolf
confronted Wallin, striking him with his hands, demanding alcohol or money. Russell
then handed Spotted Wolf a knife that Russell had stolen earlier in the day, and Spotted
Wolf used it to slash Wallin across the face. Spotted Wolf then gave the knife back to
Russell, telling him to show what he was made of and what he could do. Russell used the
knife to stab Wallin several times.
2
¶4 Russell then walked a few steps to where another transient (Gewanski) was
sleeping. Russell beat Gewanski and stabbed him multiple times with the knife, killing
him. Russell walked back to Wallin, and he and Spotted Wolf continued the assault as
Wallin tried to get away. Another man named Rideshorse was present and intervened to
stop the renewed attack on Wallin. Russell struck Rideshorse and said “Let’s do this
guy.” Spotted Wolf declined, and he and Russell fled.
¶5 Rideshorse went out into the street and hailed a police car. Wallin was seriously
and permanently injured by Russell and Spotted Wolf. Upon arrest, police found blood
from both Wallin and Gewanski on Russell’s clothing. Police recovered the knife from
Spotted Wolf and DNA from both victims was on it. Spotted Wolf pled guilty to charges
of deliberate homicide by accountability, to aggravated assault and to robbery.
¶6 The State charged Russell with deliberate homicide for the death of Gewanski
(charged as felony murder under § 45-5-102(1)(b), MCA); aggravated assault upon
Wallin; accountability for Spotted Wolf’s robbery of Wallin; and accountability for
Spotted Wolf’s aggravated assault of Wallin. The State charged the aggravated assault
upon Wallin as the underlying felony to support the felony murder charge against
Russell. In May 2005 a jury in Yellowstone County convicted Russell of each of the
charged offenses, and the District Court sentenced Russell to terms of imprisonment.
Russell appealed to this Court, which reversed the conviction for aggravated assault
against Wallin because it was an included offense of the charge of felony murder. This
Court affirmed the remainder of the convictions. State v. Russell, 2008 MT 417,
347
Mont. 301,
198 P.3d 271 (Russell I).
3
¶7 In March 2010 the Criminal Defense Clinic at the University of Montana School
of Law filed a petition for postconviction relief on behalf of Russell. The petition
contended that Russell’s trial counsel were ineffective for failing to argue that the murder
of Gewanski did not occur in the course of the assault on Wallin, and therefore the facts
did not support the charge of felony murder. The petition further contended that
Russell’s appellate counsel was ineffective for failing to argue that the aggravated assault
on Wallin was not sufficiently casually related to the attack on Gewanski to support the
felony murder charge. Eventually Russell filed an amended and a second amended
petition; the State responded; and both sides filed affidavits. The District Court
conducted an evidentiary hearing on March 19, 2014.
¶8 Several witnesses testified at the hearing on postconviction relief. Penny Strong
was Russell’s lead attorney at trial and at that time was the Chief Public Defender for
Yellowstone County. She testified that she was experienced in the defense of homicide
cases, and that she had an adequate support staff and an excellent investigator who
identified and interviewed witnesses and examined the physical evidence. Strong
personally examined the crime scene, describing it as a passage between two buildings,
covering a very small area. She estimated that the distance between the attack upon
Wallin and the attack upon Gewanski was smaller than the courtroom in which the
hearing was held. She testified that “there really wasn’t a separate crime scene for the
homicide that involved Mr. Gewanski. It was all one in the same.”
¶9 In a statement, Spotted Wolf described the distance between the attack upon
Wallin and the attack upon Gewanski as “a few steps.” The District Court found that the
4
area in which the crimes occurred was small, 30 to 40 feet long, and that both assaults
“were committed close in time and space.” (Emphasis added.)
¶10 Strong testified that she researched felony murder issues and their application to
Russell’s case. She was unable to provide details of the research because she no longer
worked as a Public Defender and her work materials were not available to her for review
prior to the hearing. She was familiar with felony murder charges and believed that from
the defense perspective they made convictions easier to obtain. She recalled raising these
concerns in her trial brief and through proposed jury instructions. She believed that a
specific unanimity instruction was important in the context of a felony murder charge and
she offered one, which the District Court refused. She made a general motion to dismiss
all charges at the close of the State’s case-in-chief, based upon failure of proof.
¶11 Strong testified that she could not find any evidence to support Russell’s claim
that he was not present at the assaults and the murder. She stated that the State offered
plea agreements to both Russell and Spotted Wolf; that Spotted Wolf accepted the plea
agreement; and that Russell rejected it and chose to go to trial. She understood that the
State’s theory of felony murder against Russell was that he started the chain of events
that led to Gewanski’s death by giving his knife to Spotted Wolf to use in the initial
attack upon Wallin. Strong’s co-counsel, attorney Claus, explained that prior to
sentencing he filed a motion on double jeopardy grounds to dismiss the felony murder
predicate offense of assault. In doing so, he argued that the attack upon Wallin and the
attack upon Gewanski were part of the same transaction and that therefore the aggravated
5
assault was a lesser included offense of the homicide charge. That argument was
ultimately successful in this Court on direct appeal.
¶12 Mark Murphy, the chief criminal deputy for the Yellowstone County Attorney,
prosecuted the case against Russell. He testified that he had no doubt that the death of
Gewanski happened during the course of the assault upon Wallin. Murphy described his
opinion of the evidence:
With the review of all the evidence we had at the time, it seemed that all of
the homicide flowed from the initial robbery, that that was the motivating
factor that tied all of the activity together, it was the cause of the homicide.
He described the factual connection between the events:
Well, it—it’s all part of a kind of a seamless whole, I mean there isn’t any
break in the action, it happened in a very, very short time span, it happened
in a very small area. (Emphasis added.)
Murphy believed that the evidence demonstrated that Spotted Wolf’s assault upon Wallin
was the “precipitating factor” in the events but that “it’s impossible to separate out any
one factor, they all moved in that direction [the murder of Gewanski] and followed from
the underlying felony.”
¶13 Murphy affirmed that during the course of the trial there were extensive
discussions among the District Court, the prosecution, and defense counsel about felony
murder, the analysis of continuous conduct, and numerous Montana cases bearing upon
the felony murder issues. He recalled that there was a “very vigorous discussion” about
jury instructions and that “Ms. Strong put forward her theory of the case in a very
professional manner.” Murphy also testified that Strong was “extremely competent”
6
during the trial, giving as an example her cross-examination of witness Rideshorse, which
raised points that the prosecution had not previously considered.
¶14 Attorney Shannon McDonald, as an Assistant Appellate Defender, prepared the
brief for Russell’s direct appeal to this Court. She testified that her analysis of the trial
evidence convinced her that it did not
permit an argument that the assaults on one victim were a separate
transaction from the homicide of the other victim, or that there was a
temporal break between the attacks. My memory of the evidence presented
was that the crimes occurred in a short period of time, in a relatively small
place, with the victims close together. (Emphasis added.)
She testified that the evidence presented at trial did not support an argument that the
crimes were separate transactions. She believed that the events, starting with the attack
on Wallin and ending with the murder of Gewanski, were “inextricably tied together.”
(Emphasis added.)
¶15 On July 8, 2014, the District Court issued detailed findings of fact regarding
Russell’s postconviction claims that his attorneys at trial and on appeal provided him
with ineffective assistance.1 The District Court found that Strong understood the felony
murder charge and the evidence that the State would present. The District Court found
that Strong had adequate time to prepare and that after examining the crime scene she
believed that the assault on Wallin and the death of Gewanski did not involve “two crime
scenes.” She understood the State’s theory of the case that the assault on Wallin “started
1
The District Court noted that Russell’s petition for postconviction relief raised
numerous other allegations that were not addressed at the hearing, but that were also not
withdrawn. In the present appeal Russell has likewise focused on the IAC claims and has not
addressed the other issues. We have no basis to review any other claims and decline to do so.
7
the incident that included the death of Gewanski.” The District Court found that “Strong
understood the charge correctly.” She “researched application of the felony murder
rule”; believed that it made a conviction more likely; and believed that the specific
unanimity instruction that she offered would address her concerns.
¶16 The District Court found that the crime scene was small and that “the events were
committed close in time and space.” The entire scene from where Wallin was assaulted
to where Gewanski was killed was “only about 30-40 feet long.” The District Court
noted the testimony of attorneys Kelleher and Snodgrass, who represented co-defendant
Spotted Wolf. They investigated the scene and the facts and were “well aware of the
nature of the events.” They ultimately concluded that the State had properly charged
their client. Spotted Wolf pled guilty to charges of deliberate homicide by accountability,
to aggravated assault and to robbery.
¶17 As to appellate counsel McDonald, the District Court found that she raised three
issues on appeal, one of which was the successful argument that Russell could not be
convicted of both felony murder and the predicate offense of assault. The District Court
noted that McDonald believed at the time of direct appeal that the trial evidence did not
permit an argument that the Wallin and Gewanski attacks were separate and unrelated
events. At the time of the postconviction hearing, McDonald still construed the evidence
that way, and did not agree with Russell’s arguments on application of the felony murder
statute. The District Court noted the testimony of prosecutor Murphy that his
construction of the facts was that “the initial assault [against Wallin] with the knife
caused everything that happened after that.”
8
¶18 The District Court noted the testimony of Assistant Appellate Defender Koan
Mercer, who represented Russell on direct appeal after attorney McDonald left her
appellate defender position. Mercer testified that in his opinion there was insufficient
evidence at trial to support a felony murder conviction based upon his belief that there
were separate crimes involving the two victims. Mercer testified that no reasonable
attorney could hold a different opinion and that failure to reach such a conclusion fell
below the duty of care for attorneys. Because McDonald construed the facts differently,
Mercer testified that she provided ineffective assistance to Russell.
¶19 The District Court acknowledged the conflicting testimony on the viability of the
felony murder charge under the facts of Russell’s case. The District Court found that
Strong provided zealous representation throughout the trial, understood the charges, and
was knowledgeable and prepared. The District Court concluded that Strong’s
representation was “anything but ineffective.” The District Court similarly found that on
appeal McDonald understood the felony murder charge and that after a “thorough review
of the record” determined that it did not support a two-crimes argument. The District
Court found that McDonald’s representation did not breach the standard of care and was
not ineffective. The District Court concluded that it was “entirely reasonable” for
McDonald to interpret the evidence as showing that the assault and the homicide were
“inextricably intertwined.” The District Court determined that it was reasonable for
McDonald to conclude that the homicide would not have occurred but for the predicate
felony of the assault on Wallin.
9
¶20 The District Court concluded that there was “no defect in the charging” of felony
murder and no deficiency in the State’s proof of the charge. The District Court
concluded that Russell failed to establish that his attorneys at trial and on appeal were
ineffective with regard to the felony murder charge. The District Court concluded that
Russell killed Gewanski “in furtherance of the initial aggravated assault” upon Wallin.
The District Court concluded that when Spotted Wolf paused his attack upon Wallin,
handed the knife back to Russell and then exhorted him to show what he’s made of:
Russell then acted immediately in furtherance of that initial aggravated
assault by further escalating the violence against another victim. There was
no break in time or space. These events took place within feet of one
another. . . . The homicide occurred because of Spotted Wolf’s aggravated
assault. (Emphasis added.)
The District Court concluded that this was sufficient to support the charge and conviction
for felony murder.
¶21 The District Court denied Russell’s petition for postconviction relief. This appeal
ensued.
STANDARD OF REVIEW
¶22 This case arises from a petition for postconviction relief filed pursuant to
§ 46-21-101, MCA. A district court considering a petition for postconviction relief may
hold an evidentiary hearing, § 46-21-201, MCA, and must enter findings of fact and
conclusions of law, § 46-21-202, MCA. The petition may not be based upon grounds for
relief that were or could reasonably have been raised on direct appeal. Rukes v. State,
2013 MT 56, ¶ 8,
369 Mont. 215,
297 P.3d 1195; § 46-21-105(2), MCA. The petition
must identify all facts that support the claims for relief, Kelly v. State,
2013 MT 21, ¶ 9,
10
368 Mont. 309,
300 P.3d 120, and the petitioner has the burden to show by a
preponderance of the evidence that the facts justify relief. Griffin v. State,
2003 MT 267,
¶ 10,
317 Mont. 457,
77 P.3d 545.
¶23 We review the district court’s findings of fact to determine whether they are
clearly erroneous. Brimstone Mining, Inc. v. Glaus,
2003 MT 236, ¶ 20,
317 Mont. 236,
77 P.3d 175. A finding of fact may be clearly erroneous if it is not supported by
substantial evidence in the record; if the district court misapprehended the evidence; or
when our review of the record leaves this Court with the definite and firm conviction that
a mistake has been committed. Brimstone, ¶ 20. A district court’s interpretation of a
statute is a conclusion of law which we review for correctness. Montana State Fund v.
Simms,
2012 MT 22, ¶ 15,
364 Mont. 14,
270 P.3d 64.
¶24 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 (1984). 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. A
petitioner seeking to reverse a district court’s order denying postconviction relief based
upon an allegation of ineffective assistance of counsel has a heavy burden. Bomar v.
State,
2012 MT 163, ¶ 5,
365 Mont. 474,
285 P.3d 396.
11
¶25 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.
DISCUSSION
¶26 Issue One: Whether Russell received effective assistance of counsel at trial based
upon allegations that counsel failed to research and understand the principles of
felony murder; failed to properly move for dismissal of that charge; and failed to
offer proper instructions on felony murder.
¶27 The offense referred to as felony murder is provided by § 45-5-102(1)(b), MCA:
(1) A person commits the offense of deliberate homicide if:
(b) the person attempts to commit, commits, or is legally
accountable for the attempt or commission of robbery, sexual intercourse
without consent, arson, burglary, kidnapping, aggravated kidnapping,
felonious escape, assault with a weapon, aggravated assault, or any other
forcible felony and in the course of the forcible felony or flight thereafter,
the person or any person legally accountable for the crime causes the death
of another human being . . . .
The underlying or predicate felony is “both an included offense and an element of felony
homicide.” Russell I, ¶ 24. The only causal connection required to constitute felony
murder is that “the death actually occurred during the underlying felony or the flight
thereafter.” State v. Burkhart, 2004 MT 372, ¶ 36,
325 Mont. 27,
103 P.3d 1037. When
a person commits a felony like aggravated assault, he initiates conduct that creates a
dangerous circumstance, and the intent to commit the felony supplies the intent for the
consequences that arise from it. Burkhart, ¶ 41.
¶28 Russell contends that he received ineffective assistance of counsel at trial because
his attorneys failed to adequately research the law on felony murder and then “proceeded
12
under a fundamental misunderstanding of its elements.” Russell contends that the
fundamental correlation of “time and place” between the underlying felony and the death,
as well as a causal connection between the underlying (predicate) felony and the death
are all missing from this case. He contends that all of the attorneys involved in the case,
both prosecution and defense, fundamentally misconstrued the facts and the law by
assuming that “close proximity of time and place was sufficient to prove felony murder.”
He contends that if only his attorneys had understood this, and had made the proper
motions and arguments, he would not have been convicted of felony murder. Russell
contends that the District Court fundamentally erred in the present proceeding by
concluding that Spotted Wolf’s exhortation of Russell to “see what he could do” with the
knife constituted the underlying felony.
¶29 The District Court’s findings of fact and conclusions of law do not support
Russell’s contentions. The District Court and all the attorneys involved on both sides of
the prosecution against Russell (except for Mr. Mercer) generally agreed about the facts
and how they related to felony murder. The amended information in Russell’s case
clearly establishes the aggravated assault upon Wallin as the predicate or underlying
felony in the felony murder charge. There is no support for Russell’s assertion that the
District Court (or any of the attorneys) failed to understand this. Specifically there is no
support for Russell’s assertion that the District Court determined that Spotted Wolf’s
exhortation of Russell after handing back the knife “constituted the underlying felony.”
That assertion makes little sense.
13
¶30 The fact that Spotted Wolf handed the knife back to Russell and exhorted him to
do something is, however, critical in analyzing the causal connection of the events that
began when Russell and Spotted Wolf entered the alley and that ended with Gewanski’s
death. The overwhelming evidence is that the events in this assault and murder spree
occurred in a small area in a very short period of time. Those facts lay the groundwork
for determining whether there was a causal connection to the events that then happened.
¶31 As detailed in the District Court’s findings of fact, the events of that evening were
set in motion when Spotted Wolf began the assault upon Wallin in an attempt to extort
alcohol or money from him. The facts demonstrate that the assault dramatically escalated
when Russell handed Spotted Wolf the knife Russell had stolen earlier in the evening.
Spotted Wolf used Russell’s knife to slash the hapless Wallin across the face and then he
returned the knife to Russell with an admonition or exhortation to do something with it.
Russell took the knife the short distance to where Gewanski slept and stabbed and killed
him. Russell then immediately returned to Wallin, and he and Spotted Wolf continued
the initial assault, from which Wallin narrowly escaped with his life.
¶32 These events form a continuing narrative from the assault to the murder. While
Spotted Wolf’s exhortation of Russell to do something with the knife was an important
factor, there is no support for Russell’s assertion that the District Court (or anyone else)
considered the exhortation itself to be the underlying felony. “The felony homicide
charge in Count 1 was predicated on the charge for aggravated assault in Count II.”
Russell I, ¶ 18.
14
¶33 As the District Court properly determined, the assault and the murder took place in
close proximity as to time and place, and the murder flowed in a continuous series of
actions from the assault against Wallin by both Spotted Wolf and Russell. Therefore
Russell was properly charged with and convicted of felony murder. There is substantial
evidence in the record to support the District Court’s findings of fact, and Russell has not
met his burden to demonstrate that the facts as found by the District Court were clearly
erroneous.
¶34 The District Court found, after hearing the testimony of those directly involved,
that lead trial attorney Strong properly understood the charge and the facts. The District
Court, having presided over both Russell’s trial and the postconviction relief proceeding,
was in a unique position to evaluate the performance of trial counsel with regard to the
felony murder charge. Russell failed to establish at the postconviction hearing that
attorney Strong was deficient as a matter of fact, and failed to establish on appeal that the
District Court’s findings of fact in that regard were clearly erroneous. Russell has not
demonstrated that the legal assistance provided to him fell below an objective standard of
reasonableness. Whitlow, ¶ 14. Russell has not overcome the strong presumption that the
attorney’s performance fell within the wide range of reasonable professional assistance,
Whitlow, ¶ 15.
¶35 Further, Russell failed to demonstrate that the outcome of the trial would have
been any different had Strong argued that the events in this case were insufficient to
constitute felony murder. There is no showing that such an argument would have been
successful in avoiding the charge of felony murder.
15
¶36 We therefore affirm the District Court’s decision that Russell did not receive
ineffective assistance of counsel at trial.
¶37 Issue Two: Whether Russell received effective assistance of counsel on appeal
based upon allegations that counsel failed to understand the principles of felony
murder and failed to attack the sufficiency of the evidence to support a conviction
of that charge.
¶38 All of these same considerations lead to the conclusion that the District Court
correctly determined that attorney McDonald did not provide ineffective assistance of
counsel on appeal. The District Court found that the evidence showed that McDonald
understood the law on felony murder, that she thoroughly reviewed the trial record, and
that she determined that the evidence would not support an argument that the facts failed
to support the charge of felony murder. Rather, she adopted a strategy, which was
ultimately successful, to challenge the convictions for both the homicide and the
underlying predicate felony assault. Other than offering attorney Mercer’s opinion, the
most that Russell established below was that attorneys might disagree about how to apply
the facts of this case to the felony murder statute. The District Court properly determined
that McDonald’s performance did not fall below the objective standard of reasonableness
for attorney representation. As noted above, there are “countless ways to provide
reasonable assistance in any given case.” Strickland, 466 U.S. at 689,
104 S. Ct. at 2065.
¶39 We therefore affirm the District Court’s decision that Russell did not receive
ineffective assistance of counsel on appeal.
16
CONCLUSION
¶40 We affirm the District Court’s decision to deny Russell’s petition for
postconviction relief.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JIM RICE
Justice Patricia Cotter, dissenting.
¶41 The Court concludes that the District Court and the attorneys on both sides of the
case generally agreed about how the facts related to and established felony murder.
Opinion, ¶ 28. Respectfully, I disagree. There was confusion—not agreement—about
what constituted the predicate felony for the felony murder charge. In addition, there was
a failure of proof of a causal connection between the two crimes so as to satisfy the
requirements of the felony murder rule.
¶42 At ¶ 6, the Court asserts that the State charged the aggravated assault upon Wallin
as the underlying felony to support the felony murder charge; notably, the Court does not
state whether it was Spotted Horse’s aggravated assault of Wallin or Russell’s aggravated
assault of Wallin that constituted the predicate offense. (Both were charged with
aggravated assault.) Trial counsel Penny Strong testified that the basis of the felony
murder charge against Russell was that Russell started the chain of events by giving his
17
knife to Spotted Wolf, who used it in the initial assault upon Wallin. Opinion, ¶ 11. The
District Court concluded that the predicate felony was Spotted Wolf’s assault on Wallin.
Opinion, ¶ 20. However, this Court concluded in Russell’s direct appeal that the
predicate offense was Russell’s assault upon Wallin. Russell I, ¶ 28. The fact that there
is still no clarity about whose offense constituted the predicate for the felony murder
charge against Russell underscores the flaw in the manner in which this case was charged
and tried, and the ineffective assistance of trial counsel in failing to grasp the elements of
the felony murder rule and pin down who committed the predicate offense.
¶43 If as the District Court concluded, the predicate felony was Spotted Wolf’s assault
on Wallin, then under § 45-5-102(1)(b), MCA, it would arguably be he who would be
guilty of felony murder, not Russell, because he would be the person who committed a
felony and in the course of that felony became accountable for the death of Gewanski.
Spotted Wolf’s malicious intent for the predicate offense cannot be transferred to Russell.
As we stated in State v. Weinberger, 206 Mont. 110, 115,
671 P.2d 567, 569 (1983): “In
adjudging a felony-murder, it is to be remembered at all times that the thing which is
imputed to a felon for a killing incidental to his felony is malice and not the act of
killing.” (Emphasis added).
¶44 I also submit trial counsel was ineffective for failing to challenge the charge of
felony homicide given the circumstances of the two crimes. Regardless of whose act
constituted the predicate offense, the fact is that no causal connection existed between the
aggravated assault on Wallin and the death of Gewanski. According to Spotted Wolf’s
testimony at trial, after he and Russell slashed and stabbed Wallin, he and Russell then
18
decided “to go around to the other side [of the building] and just leave out to the North
Side ”; however, when they discovered their passage through that end of the alley was
blocked, “we just stopped for, you know, not too long, we just stood there and then, you
know, [Russell] went over here . . . [and] he was hitting another person” (Gewanski).
Russell, ¶ 51 (Nelson, J., dissenting).
¶45 In order for the felony murder rule to apply, “a causal connection between the
felonious act and the death must be present.” State ex rel. Murphy v. McKinnon, 171
Mont. 120, 127,
556 P.2d 906, 910 (1976). As Justice Nelson observed in his dissent in
¶ 53 of Russell I, we quoted with approval these statements by the Pennsylvania Supreme
Court in State v. Weinberger,
206 Mont. 110,
671 P.2d 567 (1983):
The mere coincidence of homicide and felony is not enough to satisfy the
requirements of the felony-murder doctrine. It is necessary . . . to show that
the conduct causing death was done in furtherance of the design to commit
the felony. Death must be a consequence of the felony . . . and not merely
coincidence. (Internal quotations omitted.)
The facts as related by Spotted Wolf simply do not establish that the stabbing of
Gewanski was done “in furtherance of the design to commit” a robbery or assault upon
Wallin. Gewanski’s death was not a consequence of the assault upon Wallin; his death
was the result of a spontaneous drunken decision by Russell to kill a person sleeping by a
dumpster who had no connection whatsoever to Wallin.
¶46 For these reasons, I would conclude that trial counsel was ineffective. I would
further conclude that appellate counsel was ineffective for failing to challenge the State’s
proof of a causal connection between the two crimes so as to justify the felony murder
conviction, as well as the District Court’s conclusion that it was Spotted Wolf’s actions
19
that constituted the predicate felony for the charge of felony murder against Russell. I
therefore dissent from the Court’s Opinion. I would add that all of these problems could
have been forestalled had the State charged and tried this case in a straightforward
manner in the first place.
/S/ PATRICIA COTTER
Justice Laurie McKinnon joins in the Dissent of Justice Patricia Cotter.
/S/ LAURIE McKINNON
20
