No. 85-231 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSRONALD LEAVENS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

E. June Lord, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Patricia J. Schaeffer, Asst. Atty. General, Helena 

Patrick L. Paul, County Attorney, Great Falls, 

Montana 

Submitted on Briefs: May 15, 1986 

Decided: ~ugust 8, 1-986 
Mr. Justice L.C. Gulbrandson delivered the Opinion of the 

Court. 

The defendant appeals his conviction for felony 

burglary, misdemeanor attempted theft, and misdemeanor 

criminal mischief, in the Cascade County District Court. His 

only claim on appeal is that he was denied effective 

assistance of counsel. We affirm the conviction. 

On July 14, 1984, at about 5 a.m., a police officer on 

patrol heard glass breaking. As he drove toward the sound, 

the defendant and his companion, Lyle Gardipee, saw the 

officer and ran. The officer saw that the window at 

Bernadette's Restaurant was broken and pursued, caught and 

arrested the two men for breaking the window. At the time of 

his arrest, the defendant's clothing was dirty, his hair was 

covered with gray colored dust and he had a recent cut on his 

arm. Gardipee also had a gash and some dust on his clothes. 

These charges were later dismissed. 

About one half hour later, another officer was called 

to Wood World, a furniture store, to investigate a burglary. 

Wood World is about one half block from where the first 

officer encountered the defendant and Gardipee. To enter the 

business, the offender(s) had broken through a walled-over 

window that had wire running through it and kicked through 

the sheetrock covering the window. The store was cluttered 

with chairs knocked over, there was blood on a desk chair and 

on a desk, and an oak file cabinet had been moved from the 

front to the back of the store. The offender(s) left the 

building by going through the window of the rear garage door. 

The person who reported the burglary heard glass 

breaking at about 2:30 that morning. He did not call the 

police until 5:30 a.m., when he saw the windows had been 
knocked out of the rear garage door at Wood World and saw a 

brass duck and a ceramic boot lying in the alley. 

The officers arrested the defendant and Gardipee , who 

were still in custody, for this break-in based on their 

recent cuts, the dust on their clothing which looked like 

dust from sheetrock, their location near the scene of the 

crime, and the unusual treadmarks on defendant's shoes which 

matched footprints left outside the entry point and on the 

window ledge at Wood World. At trial, held December 3 and 4, 

1984, an expert testified that the broken sheetrock from the 

store had a unique composition containing crushed red brick 

particles. Sheetrock dust recovered from the defendant's 

clothing and shoes contained these red brick particles. 

Another expert testified that the paint fragments attached to 

the sheetrock were of a unique color mixture and that the 

paint particles from defendant's clothing were of the same 

color, texture, and composition as the paint on the store 

wall at the point of the break-in. Both experts agreed that 

the defendant ' s clothing would contain that amount of debris 

only by coming into contact with sheetrock as it was being 

broken. The jury returned a verdict of guilty on all three 

counts charged. 

On appeal, the defendant claims he was denied effective 

assistance of counsel as guaranteed by the Sixth Amendment to 

the United States Constitution and by Art. 11, Section 24, of 

the 1972 Montana Constitution. This Court recently adopted a 

two-prong test for analyzing a claim of ineffective 

assistance of counsel. State v. Robbins (Mont. 1985), 708 

P.2d 227, 232, 42 St.Rep. 1440, 1444, citing Strickland v. 

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 

674. 
First, the defendant must show that counsel's 

performance was deficient. This Court has used the 

"reasonably effective assistance" test of whether a 

defendant's counsel acted within the range of 

competence demanded of attorneys in criminal cases. 

State v. Rose (1980), 187 Mont. 74, 86, 608 P.2d 

1074, 1081. Second, the defendant must show that 

the deficient performance prejudiced him so 

seriously as to deprive him of a fair trial. 

State v. Elliott (Mont. 1986), 717 P.2d 572, 575, 43 St.Rep. 

723, 726. The standard for prejudice is "that there is 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, 

It will generally be appropriate for a reviewing 

court to assess counsel's overall performance 

throughout the case in order to determine whether 

the "identified acts or omissions" overcome the 

presumption that a counsel rendered reasonable 

professional assistance. Since " [tlhere are 

countless ways to provide effective assistance in 

any given case," . . . unless consideration is 

given to counsel ' s overall performance, before and 

at trial, it will be "all too easy for a court, 

examining counsel's defense after it has proved 

unsuccessful, to conclude that a particular act or 

omission of counsel was unreasonable." . . . (citations omitted.) 

Kimrnelman v. Morrison, No. 84-1661, slip op. at 19 (supreme 

Court of the United States, June 26, 1986), citing 

Strickland, supra. 

The defendant contends that counsel's performance was 

deficient in failing to call an alibi witness, failing to 

investigate the defendant's explanation of damaging evidence, 

failing to counter expert testimony, and failing to make a 

motion to suppress the clothing seized incident to an arrest 

he claims was unlawful. The defendant's allegations on 

appeal concerning an alibi witness and how he got sheetrock 

dust on his clothing are not supported in the record. We 
will not consider these on appeal. Elliott, 717 P.2d at 575, 

43 St.Rep. at 722. In addition, a decision on whether to 

call a witness "is a matter of trial tactics, which are 

normally not grounds for a determination that counsel's 

performance was deficient." Elliott, supra. 

The defendant also alleges that counsel failed to 

investigate the uniqueness of his shoes and failed to counter 

expert testimony on the sheetrock. Whether a decision to not 

investigate such evidence is reasonable professional judgment 

must be assessed under the particular circumstances. 

Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 

698. Here, counsel emphasized to the jury the officers' 

failure to measure the prints and compare them to the size of 

defendant's shoes. He explained the sheetrock particles on 

defendant's clothes when he suggested they transferred from 

Gardipee to defendant during a fight and shifted 

responsibility for the break-in to Gardipee. There was 

little he could have done to attack the matching of paint and 

sheetrock characteristics from Wood World to his clothing. 

Under such circumstances, a decision to not attempt a counter 

of this testimony was not unreasonable. 

The defendant's final allegation is that his counsel 

failed to move to suppress his clothing after it was seized 

pursuant to the first, unlawful arrest. We do not agree that 

the arrest was unlawful. Section 46-6-401 (1) (d) , MCA, states 

that an officer may arrest a person without a warrant when 

"he believes on reasonable grounds that the person is 

committing an offense or that the person has committed an 

offense and the existing circumstances require his immediate 

arrest." The officer properly arrested the defendant and his 

companion without a warrant under this statute when he heard 
the glass breaking, saw them near the scene, and they fled 

after noticing the officer. State v. DiGiallonardo (1972) , 

160 Mont. 379, 503 P.2d 43. Since the defendant's clothing 

was seized incident to a lawful arrest, the seizure was 

proper under 5 46-5-101(1), MCA, and was admissible as 

evidence. Section 46-5-104, MCA, and State v. Armstrong 

(Mont. 1980), 616 P.2d 341, 349, 37 St.Rep. 1563, 1570. Any 

motion to suppress this evidence would have been futile. The 

defense counsel's failure to so move does not indicate a 

deficient performance. 

We hold that defendant has failed to carry the burden 

of showing his counsel's performance was deficient or outside 

the range of competence demanded of attorneys in criminal 

cases and has failed to show prejudice resulting from the 

alleged deficient performance. 

Affirmed. 

We Concur: g,~

Chlef Justice