IN THE SUPRMEE COURT OF THE STATE OF MONTANA 

1983 

BERNARD JAMES FITZPATRICK, 

Petitioner and Appellant, 

STATE OF MONTANA, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Big EIorn, 

The Honorable Charles Luedke, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Stephens & Cole; Robert L. Stephens, Jr. argued, 

Billings, Montana 

Timothy K. Ford, Seattle, Washington 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Maynard, Asst. Atty. General, argued, Helena 

James Seykora, County Attorney, argued, Hardin, Montana 

Submitted: June 2, 1983 

Decided: October 6, 1983 

Filed: fJ(3T 6 - 1983 

- Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Petitioner, Bernard J. Fitzpatrick, appeals an order 

of the District Court of the Thirteenth Judicial District of 

the State of Montana dismissing petitioner's amended petition for post-conviction relief. 

In October 1975, petitioner Bernard J. Fitzpatrick and 

four others, Gary Radi, Travis Holliday, Paul Bad Horse and 

Edwin Bushman were tried by a jury on the charges of deliberate homicide, aggravated kidnapping, and robbery of Monte 

Dyckman, a Hardin Safeway supermarket clerk. Petitioner was 

found guilty on all counts and was sentenced to death. On 

appeal, this Court reversed the convictions of all the 

defendants and on October 19, 1977, remanded the cases for 

separate retrials. State v. Fitzpatrick (1977), 174 Mont. 

174, 569 P.2d 383. The question of effective assistance of 

counsel was an issue on this first appeal. Fitzpatrick, 569 

P.2d at 389. 

On November 29, 1977, attorney John L. Adams, Jr., was 

appointed by the District Court to represent petitioner at 

his retrial. In December 1977, both the State and petitioner filed motions asking the District Court to appoint 

counsel. other than Adams, who had represented codefendant 

Paul Bad Horse in the first trial, or to have a hearing to 

see if Fitzpatrick was satisfied with Adams as counsel. 

Petitioner's motions were filed pro se. A hearing was held 

on January 16, 1978, at which time Fitzpatrick withdrew his 

request, stating that he wished to keep Adams as his 

counsel. 

At his second trial in 1978, Fitzpatrick was again 

convicted of deliberate homicide, aggravated kidnapping, and 
robbery. He was agaln sentenced to death. During that 

second trial, his sentencing hearing and the subsequent 

appeal, he was represented by John L. Adams, Jr. This 

Court, after hearing oral argument on two separate occasions, affirmed his conviction. The United States Supreme 

Court twice denied certiorari. Fitzpatrick v. Montana 

(1980), 449 U.S. 891, and Fitzpatrick v. Sentence Review 

Division (1980), 449 U.S. 891. 

Fitzpatrick then filed a petition for post-conviction 

relief in Big Horn County. The District Court dismissed all 

claims in that petition but reserved ruling on his claim No. 

8(c), which charged ineffective assistance of counsel. The 

District Court denied petitioner's motion for reconsideration or amendment. Fitzpatrick then appealed the denial of 

the petition for post-conviction relief. This Court affirmed 

dismissal of the other claims and remanded the cause to the 

District Court for an evidentiary hearing solely on the 

issue of ineffective assistance of counsel. Fitzpatrick v. 

State (1981), Mont. , 638 P.2d 1002, 38 St.Rep. 

1448. A five-day hearing was held in April 1982. On 

September 1, 1982, the District Court issued an order and 

memorandum dismissing that claim. Fitzpatrick now appeals. 

Post-Conviction Relief: 

Because the post-conviction procedure is a civil 

remedy, the failure to present claims in earlier proceedings 

wlll not bar them from presentation at this time. Nevertheless, the fact that an issue is not raised at a pretrial 

hearing, during trial or on direct appeal will be considered 

by this Court as an element bearing on the merits of that 

particular claim. 
The language of the statute providing for postconviction relief is clear. Section 46-21-101, MCA. Circumstances in which validity of a sentence may be challenged, 

presents a two-part test which a petitioner must meet in 

order to qualify for such relief. The statute reads: 

"A person adjudged guilty of an offense 

in a court of record who has no adequate 

remedy of appeal - and who claims that 

sentence was imposed in violation of the 

constitution or the laws of this state or 

the constitution of the United States, 

that the court was without jurisdiction 

to impose the sentence, or that the 

sentence was in excess of the maximum 

authorized by law or is otherwise subject 

to collateral attack upon any ground of 

alleged error available under a writ of 

habeas corpus, writ of coram nobis, or 

other common law or statutory remedy may 

petition the court which imposed the 

sentence or the supreme court to vacate, 

set aside, or correct the sentence." 

(Emphasis added.) 

The first element of the test which a petitioner must 

satisfy is that petitioner be "adjudged guilty of an offense 

in a court of record who has no adequate remedy of appeal 

... I' This phrase does not mean that a petitioner may 

avail him or herself of the appellate review process, and, 

when the results are unfavorable, utilize the post-conviction review procedure to, in effect, file numerous and 

successive "appeals." The language of the statute for part 

one of the test clearly intends this form of relief to be 

available to convicted persons who have not had their 

sentences reviewed by the appellate court. It is clearly an 

abuse of the relief procedure to withhold issues which could 

and should have properly been raised on appeal, or to 

manufacture issues years later, in an attempt to manipulate 

and obstruct the criminal justice process. 

Such abuse of the statute is particularly apparent in 
this case where the petitioner has had such extensive 

experience in the criminal justice system. Clearly, the 

statute was intended to prevent the miscarriage of justice, 

not to provide an opportunity to manipulate and obstruct 

justice. As the United States Supreme Court so succinctly 

stated in a recent opinion, "when the process of direct 

review . . . comes to an end, a presumption of finality and 

legality attaches to the conviction and sentence." Barefoot 

v. Estelle (1983), U.S. -1 - S.Ct. -1 - L.Ed.2d 

, 51 L.W. 5189 (No. 82-6080, decided July 6, 1983). The 

Court further quoted from Lambert v. Wd (1895), 159 

U.S. 660, as follows: "It is natural that counsel for the 

condemned in a capital case should lay hold of every ground 

which, in their judgment, might tend to the advantage of 

their client, but the administration of justice ought not to 

be interfered with on mere pretexts." We agree. And we 

cannot further allow the abuse of the post-conviction relief 

statute to obstruct the course of justice. 

aCEfZQr The sole issue in this !$ezz is whether petitioner 

was denied effective assistance of counsel during his 

retrial on the charges of deliberate homicide, aggravated 

kidnapping and robbery. 

Petitioner's amended petition alleges ineffective 

assistance of counsel in numerous particulars. We will 

discuss these allegations item by item. 

Petitioner alleged that Adams did not consult with 

petitioner regarding his case until January 7, 1978, and did 

not have time to adequately prepare the case. 

In December, 1977, petitioner asked that other counsel 

be appointed to represent him because he felt that John L. 
Hon. Frank I. Haswell 

Chief Justice, Supreme Court 

Room 414 Justice Building 

215 North Sanders 

Helena, Montana 59620 

CORRECTION. In preparing this opinion for publication, we noted in our verification of titles and 

citations the matters listed below. Corrections have 

been made on our copy of the opinion. 

Date: 

November 7, 1983 

Re: 

Fitzpatrick v. State, No. 82-476, Oct. 6, 1983 

Page 5, line 11 -- Lambert v. Jackson should read Lambert v. Barrett. 

WEST PUBLISHING COMPANY 

Box 3526 

St P;lrrl MM RR1F;R 
Adams, Jr., did not have sufficient time to represent him in 

his retrial. In response, the prosecution also requested 

that a hearing be held and that it be determined that petitioner be satisfied with his counsel, not only as to the 

time such counsel could devote to the matter, but also in 

view of the fact that such counsel had represented another 

defendant in the first trial. 

A hearing was held with the following result: 

"THE COURT: Court will be in session. 

We have Big Horn County Criminal Cause 

No. 1107-C, entitled State of Montana 

versus Bernard James Fitzpatrick. Mr. 

Fitzpatrick, you have filed with this 

Court a request that the Court consider 

replacing Mr. John Adams as your attorney 

on the ground that he, being a public 

defender, has so much to do that he is 

not able to adequately take care of your 

case. You have likewise filed a similar 

request with the Montana Supreme Court 

and they have responded to you, and to me 

as well, and then, similarly, the County 

Attorney of Big Horn County has likewise 

filed a motion requesting that you be 

given the opportunity to express yourself 

on this very point. And so that is why 

we are convened here this afternoon, Mr. 

Fitzpatrick. Do you have any statement 

that you'd like to make to the Court at 

this time? 

"THE DEFENDANT: Yes I do. I filed a 

motion with this Court and with the 

Supreme Court that Mr. John Adams was a 

public defender and did have a heavy 

caseload and that, but since that filing 

I have had a talk with Mr. Adams and Mr. 

Adams is working on my case, and working 

hard, and I am satisfied with the work 

and I do feel that -- He assures me that 

his case load isn't too heavy to handle 

this case, and I'm inclined to believe 

that it isn't, and I would like to 

withdraw whatever it is on that, keep Mr. 

Adams . "THE COURT: All right, I want to explain 

to you, the reason I appointed Mr. Adams 

is because No. 1, he has been in this 

Court a good many years and I know he is 

completely competent; No. 2, he has 

already been through this case once and 
so he's familiar with all the details so 

he can be of more help to you quicker and 

easier than anybody else I could find." 

Following retrial and sentencing, petitioner wrote to 

Adams expressing his displeasure with Adams' representation 

of him. Be later wrote Adams advising that a lot of what he 

had said was not true and that "you are a very competent 

lawyer and you were more than competent at my trial." 

At the evidentiary hearing, petitioner advised that 

the reason he recanted was only to keep his counsel on the 

case during its appeal to the Montana Supreme Court. Following the decision of the Montana Supreme Court which was 

unfavorable to the petitioner, he again returned to his 

accusations of incompetency. 

To put these accusations in the proper perspective, 

it is crucial to understand that petitioner is comparing the 

final result of his retrial to that of the result of the 

second trial of defendant Radi which preceded petitioner's 

trial by several weeks. Defendant Radi was acquitted on all 

counts. 

The thrust of petitioner's argument is two-fold: 

first, that evidentiary material which was presented on 

behalf of Radi was not used in petitioner's retrial; second, 

that defense counsel did not call certain specified witnesses additional to those used by Radi, which petitioner 

listed for his counsel as being able to support his alibi 

defense. 

As to the Radi trial evidence, it is apparent that 

petitioner believes it should have been identically prersented in his retrial, without regard to other considerations. Since petitioner contends he was with Radi, and 
since Radi was acquitted, petitioner believes he should have 

been acquitted also. Petitioner also obviously believes, 

regardless of other factors, that the use of additional witnesses which were not called at his retrial would have 

resulted in his acquittal. Since Radi was acquitted and 

shortly thereafter petitioner was convicted, petitioner 

concludes that the cause of his conviction was an inadequacy 

on the part of his defense counsel. 

Petitioner conveniently overlooks the fact that the 

key witnesses in the prosecution's case at the Radi trial 

failed to appear and testify in person and consequently, the 

prosecution was forced to rely upon evidence offered by 

casual observers who had knowledge of various aspects of the 

events. The key witnesses were available for Fitzpatrick's 

retrial and this circumstance alone is more than adequate to 

explain the differing results of the two trials. 

The allegations with regard to petitioner's contention 

that additional witnesses should have been called will be 

discussed witness by witness. 

Dennis Sasich: Petitioner's amended petition states 

that Sasich "could have testified that he saw Radi at the 

Squire Lounge in Billings on the evening of April 4th or 

5th, 1975, and that he saw petitioner in that same place 

with Radi around the same time." At Radi's trial, this 

witness could not conclusively state that Radi was in the 

Squire Lounge on April 5th. At the evidentiary hearing held 

on Fitzpatrick's amended petition, Sasich appeared and 

testified in effect that he had never seen petitioner 

before. 

The witnesses used by counsel on behalf of petitioner 
at retrial were two cocktail waitresses from the Squire 

Lounge, Shirley Graham and Gloria LeVe. Graham testified 

that petitioner's female companion, Christine Fetters, was 

seen by her in the Squire Lounge on the night of April 5 and 

that petitioner could have been with her although Graham did 

not specifically recall seeing him. LeVe's testimony placed 

both Fetters and petitioner together in the Squire Lounge at 

that time. Obviously, the witnesses selected by counsel to 

testify on behalf of petitioner were much stronger than a 

witness who did not even know petitioner. 

Barbara Hansen (Radi): Petitioner's amended petition 

states that this witness and Radi were "with Fitzpatrick at 

several points during that afternoon and evening in bars in 

Billings . . ." 

Her testimony at the Radi trial as to the events of 

April 5 was not confirmed by another member of the party, 

Shelley Beaumont, who was also called as a witness. 

At the evidentiary hearing, Ms. Radi augmented her 

testimony and further modified it on cross-examination. She 

further stated that while she is friendly to petitioner now, 

in 1978 he was a stranger to her and she did not want to be 

a witness for him or be involved in his trial in any way. 

By the time of petitioner's trial she had left Montana, and 

the investigator assisting Fitzpatrick's counsel determined 

that she was somewhere in Idaho but was unable to contact 

her. She had a pattern of using different names at different 

times and the search was discontinued. 

It appears from the testimony of this witness in the 

Radi trial that on the night in question she had used marijuana, LSD and alcohol and was, in her own words, "a mess." 
At the time of the homicide she was a prostitute 

working in Nevada but home on vacation living with Radi in a 

"hustler" relationship. 

Defense counsel had listened to some of her testimony 

in the Radi trial and had observed her demeanor on the 

stand. Be judged her effect upon the jury as belng detrimental and was not impressed with her credibility. 

Given the totaiity of the atmosphere which accompanied 

the appearance of this witness, it cannot be said that it 

was an exercise in incompetency to have doubts about her 

predictability and veracity, particularly if she were to be 

an unwilling wltness. 

Herscnel Wilson: Petitioner alleged in his amended 

petition that this witness could have testified that the 

petitioner was in billings on the evening of April 5. 

This witness did not testify at the Radi trial and was 

Intoxicated at the evidentlary hearing. He could only 

testify that he saw petitioner in the Standard Bar with a 

girl from Butte shortly after petitioner was released from 

prison. This witness could not and did not testify that 

petitioner was in Billings at the time the crime occurred in 

Hardin. It clearly cannot have been a lack of competency to 

have failed to call this witness. 

Cheryl Wilson (originally alleged as "Jackie Wilson"): 

In nls amended petition Fitzpatrick states that this witness 

could have testified that petitioner was in the Standard Bar 

on April 5, 1975. 

This witness did not testify at the Radi trial but did 

appear at the evidentiary hearing. Her testimony was that 

she had never seen petitioner prior to the evidentiary 
hearlng. She testified that she and Herschel Wilson had 

been involved in a five-day drinking party at about the time 

of the homicide in 1975. 

Edna Torske: In his amended petition, Fitzpatr ick 

alleged that Torske could place him in the Standard Bar on 

the night of April 5 because of a fight which had occurred 

and which she had discussed with him. 

Torske did not testify at the Radi trial but did 

appear at the evidentiary hearing. She testified that she 

did see petitioner at the Standard Bar two or three times 

after he got out of prison but did not know whether it was 

durlng the day or night, on a week day or weekend, but at 

any rate could not have been later than 9:00 p.m. because 

that is when she got off work. 

She had been contacted even before the 1975 joint 

trial and, at first, was encouraging to the defense in what 

she would say. Shortly thereafter, however, she concluded 

that she had been mistaken in her memory and stated that she 

wanted to be left alone. She was uncooperative with everyone 

and, at the time of the 1978 trial, refused to testify 

voluntarily when contacted by defense counsel. She told 

counsel that she could not remember and also stated that the 

flght she does remember did not occur on the day of the 

murder. She felt that petitioner was trying to use her 

~mproperly. Defense counsel decided that she would be unable 

to support the alibi defense and consequently did not call 

her. It is not an act of incompetency to refuse to call an 

unfavorable witness. In addition, it developed at the evidentiary hearlng that, by petitioner's own admission, the 

fight in question was on April 4, not April 5, and this was 
confirmed by a complaint and report from Billings Police 

Department records. Clearly, Torske was justified in 

refusing to verify petitioner's allegations and Adams was 

justified in declining to call this witness. 

Don Collett and Laurel Collett: Petitioner alleges in 

his amended petition that these two parties could place him 

in Billings on April 5, 1975. 

Neither of these witnesses testified at the Radi 

trial. Don Collett did appear at the evidentiary hearing 

but was intoxicated and left the courtroom before he could 

be called as a witness. He could not be found after he left 

so his testimony was not taken. However, the paralegal that 

spoke to him in preparation for the hearing advised that Mr. 

Collett's recollection was even worse than that of Herschel 

Wilson. 

Laurel Collett's testimony was taken by deposition 

while she was hospitalized. She testified that she saw 

petitioner with Radi in the Standard Bar at some time 

between 6:00 p.m. and 2:00 a.m. for a brief period of time 

on the night of the murder. 

Harriet Torgerson: The amended petition states that 

this witness could testify that petitioner checked into the 

Ponderosa Inn Motel before 2:00 or 3:00 a.m. on April 5, 

19'75. 

This witness did not appear at the Radi trial. At the 

evidentiary hearing, she testified that she checked petitioner in "towards morning." She could not be more specific 

regarding the exact time, except that she was certain it 

would have been later than 3:00 a.m. and could have been as 

late as 5:00 or 6:00 a.m. with the room receipt still dated 
April 5, 1975. It was her practice that the date change was 

not made until after she had checked the books for the previous day. This witness's testimony supports the prosecution's case rather than contradicts it as alleged in petitioner's amended petition. It can hardly be ineffective 

assistance for counsel to decline to call a witness which he 

knew would support the prosecution. 

Christine Fetters: Petitioner contends that this 

witness's testimony was impeachable in a number of ways. 

Petitioner alleged that Fetters' children had been taken 

from her and she was being threatened with being deprived of 

their custody by the State. For this reason, she testified, 

according to petitioner, for the State. Fetters denied this 

at the evidentiary hearing, and petitioner did not offer any 

evidence in support of this allegation. 

Fetters' evidence regarding burial of the gun was also 

impeachable according to petitioner. However, at the evidentiary hearing, her testimony was confirmed. 

Her trial testimony regarding the financial position 

of petitioner and herself also was not impeached at the 

hearing. Petitioner alleged that a witness named Robert 

Miller could testify that he loaned petitioner a sum of 

money. Robert Miller could not be located either for the 

trial or the hearing, and it was noted that "Robert Miller" 

was a pseudonym sometimes used by petitioner. 

Witnesses were presented on Fitzpatrick's behalf at 

the trial to testify to his financial condition. Petitioner 

himself testified that he made money through the sale of 

drugs shortly after his release from prison. 

At the hearing, Fetters did amend her testimony 
somewhat as to the date she heard the radio announcements of 

the Dyckman murder. 

Petitioner characterized Fetters as a "surprise" 

witness. In actuality, she had been listed by petitioner 

before the trial as one of his alibi defense witnesses. As 

trial approached, however, both defense counsel and the 

investigator ascertained that she would be an undesirable 

witness and that her testimony would not be favorable to 

petitioner. 

At the 1978 trial when the State sought to call 

Fetters as a prosecution witness, defense counsel objected 

on the basis that she was a defense witness and could have 

been in a common-law marriage relationship with petitioner. 

In summary, the evidence does not support petitioner's 

allegations that the testimony of Fetters was readily 

impeachable. 

Iva Lee Finch and Cindy Lee Morgan: Petitioner 

alleges that defense counsel failed to adequately bring out 

the effect of LSD upon these witnesses. However, the trial 

transcript demonstrates that this area was adequately 

covered. 

Robyn Vandersloot Spaulding: Petitioner alleges that 

this wltness could have testified as to the hair colors and 

styles of the two individuals she observed with Dyckman. At 

the evidentiary hearing, she testified that she could 

describe neither the styles nor the colors but that neither 

of the individuals with Dyckman were Fred or Raleigh Kraft, 

two men at whom petitioner was attempting to cast suspicion. 

Kenny Elms and Jim Doane: Petitioner alleges that 

these witnesses could have testified regarding the car seen 
following the Dyckman vehicle. This evidence was covered by 

three other witnesses and would only have been repetitive. 

Further, the automobile identification testimony was emphasized in cross-examination of Sheriff Brown and Lyle Doane 

and in the Ronald Potts testimony. 

Art Mulkey: The prosecution contended that the car 

seen following the Dyckman vehicle was Radi's. Radi's car 

was a 1971 Pontiac with single headlights, a vertical 

configuration in the grill area and oblong taillights. The 

total effect of the testimony elicited by Fitzpatrick's 

counsel at trial, through the witnesses Effie and Everett 

Knows the Ground and Monte Doane, was that in the car they 

saw following the victim's car the headlights were dual 

(Doane) and the taillights were round (Everett). Consequently, the testimony developed at the trial regarding the 

car following the Dyckman vehicle was to Fitzpatrick's 

benefit. Mulkey's testimony, if he had agreed to return 

from Georgia and testify as to the differences in appearance 

between Radi's car and the car described by Doane and 

Everett and Effie Knows the Ground, would simply have 

reiterated other testimony. 

Edwin Bushman: Petitioner alleges that the testimony 

of this key prosecution witness could have been impeached 

regarding where the victim was depositing the Safeway 

receipts. This allegedly could have been accomplished by 

calling Everett Stoltz. In fact, Stoltz did testify and 

that point was covered both on direct and cross-examination. 

Petitioner also contends that suspicion could have 

been directed at Bushman if Larry Cole, the defense investigator, had been called to testify regarding the time it took 
to drive from the Post Office to Toluca and back to the Post 

Office. This point was brought directly to the attention of 

the jury in defense counsel's presentation of Sheriff 

Brown's testimony. 

Raleigh Kraf t: Petitioner alleges that this witness's 

testimony could have been impeached as to when he learned of 

the murder. It is clear that petitioner misread the Fred 

Kraft statement by interpreting it to mean that Fred Kraft 

had not heard of the crime prior to the discussion with 

Bushman. 

Ronald Potts: Petitioner alleges that defense counsel 

failed to bring out prior inconsistent statements of this 

witness with regard to the car he saw parked in front of 

Safeway. Defense counsel questioned this witness on both 

direct and cross-examination, and the questioning covered 

this point, among others. 

Irene Girard and Barbara Howell: Petitioner alleges 

that these two witnesses should have been called to verify 

that they had sent him money. The depositions of these 

witnesses were taken for presentation at the evidentiary 

hearing, and they testified that Girard had sent $50 and 

Howell $20 in May or June, 1975. 

Petitioner alleges that certain records could have 

been presented regarding the issues. 

The minimum amounts sent by Girard and Howell are not 

significant in terms of the total financial picture. Also, 

these items were not at issue as Christine Fetters had 

already testified as to their receipt. 

With regard to the Snelling & Snelling employment 

records, the record demonstrates that there was never any 
issue that petitioner applied for work through this agency. 

Ken Greene: Petitioner alleges that Greene, an 

attorney working with the Defender Project at the Montana 

State Prison, could have testified that he had advised 

Fitzpatrick shortly before Fitzpatrick's release from prison 

that if Fitzpatrick did not leave the state he would be 

constantly picked up as a suspect and charged with crimes 

committed where Fitzpatrick resided. Petitioner contends 

that this testimony could have countered any prosecution 

claim that petitioner's departure circumstantially indicated 

guilt. Defense counsel considered this testimony irrelevant 

as the record shows that petitioner stayed i.n Butte and also 

repeatedly made trips to Billings after the murder. If 

defense counsel had presented this testimony, it would have 

been apparent that petitioner had not left the state for any 

significant period of time after release from prison. 

Larry Cole: Petitioner alleges that defense counsel 

erred in not calling this witness, the defense investigator, 

regarding the chain of custody of the Radi vehicle. Cole 

and defense counsel discussed the possibility of Cole testifying and decided against it. Petitioner's defense was 

alibi, so there was a question of relevancy with respect to 

matters concerning the Radi vehicle. If petitioner were not 

in Hardin the night of the crime, which was petitioner's 

defense, the contents of the Radi vehicle weeks later would 

be immaterial to him. 

Robert McRae: Petitioner maintains that this witness 

should have been called to testify regarding a shell casing 

found in the Radi vehicle. Cole contacted McRae and discussed his testimony. It was decided not to have McKae 
testify as his testimony would not be germane to the alibi 

defense. 

Forensic Evidence from the Murder Scene: Petitioner 

alleges that negative results of tests should have been 

presented. The transcript shows that such evidence was 

covered in the cross-examinations of Sheriff Brown and Carl 

Zarndt, an FBI agent. 

Further Evidence: Petitioner alleges in his amended 

petition that there was further evidence, presumably favorable to petitioner, which defense counsel failed to present. 

No such further evidence was presented to the court at the 

evidentiary hearing. 

Insufficient Defense Legal Research: These generalized allegations have, for the most part, already been 

discussed and ruled upon in the District Court's prior order 

dismissing Fitzpatrick's petition, which order has been 

affirmed by the Montana Supreme Court. 

Insufficient Trial Preparation: This contention was 

discussed in the findings of fact and conclusions of law 

previously issued on January 7, 1981, in which, at page 20, 

the District Court stated: 

"At the outset, petitioner attempts to 

show that there was insufficient defense 

preparation at, and prior to trial. Omitted from the 'facts1 is recognition that 

defense counsel had served as counsel for 

a codefendant in the first trial of this 

cause and already had detailed familiarity with the case, so that there is no 

significance to be presumed from the 

facts alone surrounding the date of his 

appointment to serve this petitioner, or 

the date upon which inception of consultation with the petitioner commenced. The 

facts which petitioner relies upon to 

support his claim of insufficient defense 

preparation are merely conclusory allegations and, as such, are insufficient." 
The only item of evidence offered in this connection 

at the evidentiary hearing was Exhibit AF, purporting to 

show that defense counsel, during December 1977 and January 

and February 1978, was burdened with a total of forty-seven 

pending criminal cases. The point is that, being so burdened, he was unable to properly prepare for petitioner's 

trial. 

Exhibit AF is a classic example of how a case load 

listing, by itself, can be deceptive and misleading. As 

examples, Case No. 10259 was actually closed as to Adams in 

May 1977 and was still alive in December 1977 only because 

of the existence of a codefendant represented by other 

counsel. The same is true of Case 10332. Case 10449 was 

closed on December 1, 1977. Case 10461 was dismissed 

December 5, 1977. Case 10491 was completed December 5, 

1977, and 14089 was completed on December 19, 1977. Adams 

withdrew from 10460 on January 11, 1978, and a guilty plea 

in 10478 occurred on that same date. Case 10500 was dismissed December 5, 1977, and 10521 was closed on December 1, 

1977. Cases 10577 and DC-78-002 were both closed on January 

9, 1978. None of these cases involved trial time or trial 

preparation and the Freeman murder case, which petitioner 

mentioned in his testimony, did not go to trial until April 

1978. Case 10568, shown as an active case in December 1977 

and January 1978, is one in which Adams was not appointed 

counsel until March 22, 1978, which was after petitioner's 

trial. 

An examination of the records will further show that 

under the pace of court calendaring, the cases filed 

subsequent to No. 10557 in which a contest developed would 
not mature until in April or May 1978, or later. Those 

which would close earlier would be by way of guilty pleas. 

It should also be recalled at this point that defense 

counsel's case load was a primary issue at the hearing which 

petitioner requested prior to his second trial. At this 

hearing on the petition which requested appointment of other 

counsel, petitioner withdrew his objection to his courtappointed counsel and stated that he thought Adams could 

handle his case effectively. 

It follows that Exhibit AF falls short in its probative effect on the point urged by petitioner. 

Sentencinq: 

Petitioner alleges in his amended petition that 

defense counsel presented no evidence in mitigation, 

although such mitigating evidence was allegedly available 

through his mother, his doctor and hospital records. 

At the evidentiary hearing, there was no evidence 

presented as to any doctor or hospital records relating to 

treatment of petitioner for dizzy spells and headaches. 

Petitioner's mother, Irene Girard, whose testimony was taken 

by deposition, did advise of dizzy spells suffered by 

petitioner as a child, resulting in his ears being lanced. 

However, because of a family break-up, her contact with 

petitioner was very spotty over the years. She left when he 

was seven years old and she saw him for a period when he was 

fifteen, again when he was seventeen, and finally on a brief 

vlsit when he was twenty-two or twenty-three years old. She 

had not seen him since, although petitioner did advise his 

mother in a telephone conversation at a time when he was 

confined in the Montana State Prison that he was still 
having dizzy spells, but the records of the prison made no 

mention of that fact or of any history of headaches. 

At the evidentiary hearing, Chris Fetters recalled 

that petitioner had told her that he had lied and attempted 

to use headaches and dizzy spells in the past to excuse his 

conduct. It is not made clear by petitioner what the relevancy might be with respect to dizzy spells and headaches in 

connection with the sentencing process. No specificity is 

provided as to how it could enter into sentencing as a mitigating factor provided by the statutes. 

In connection with the deposition of Irene Girard, 

respondent's exhibit A was attached and discussed as a part 

thereof. It consists of a questionnaire submitted by the 

Montana State Prison Reception Unit to Mrs. Girard, seeking 

background information in connection with petitioner's 

reception at some time into the state prison. To it is 

attached a letter written by Mrs. Girard, which outlines the 

developmental history of petitioner. It mentions petitioner 

being expelled from school, his membership in a school gang, 

car thefts, juvenile commitments, attempted escape, A.W.O.L. 

from the Army on two occasions, acquittal upon a charge of 

killing a man with his bayonet, transporting a stolen car 

across state lines, and going through a period of being 

"knife crazy," among other significant points. 

As the record shows, defense counsel was we11 

acquainted with Fitzpatrick's history and had known him 

since the early 1960's. Given Fitzpatrick's criminal 

history and considering counsel's duty to avoid misleading 

the court, any approach taken by Adams during the sentencing 

hearing, other than the approach he reasonably selected , 
would have had substantial and hazardous pitfalls. 

The remaining areas touched by petitioner's allegations on performance of defense counsel at sentencing appear 

to already have been considered and ruled upon both by the 

District Court and this Court in prior proceedings. 

Defense counsel did admit at the evidentiary hearing, 

in connection with the sentencing phase, that one mistake 

was made--namely, that he informed the court that the slaying of Alfred Falcon in the Montana State Prison was a 

matter of self-defense, when, in fact, petitioner denied 

having committed it at all. Petitioner had originally been 

convicted of such charge, which was affirmed on direct 

appeal but was later overturned in a post-conviction proceeding, resulting in the charges being dismissed. Defense 

counsel's copy of petitioner's presentence investigation 

conducted in connection with sentencing at the first trial, 

and which was found in Chris J. Nelson's file (petitioner's 

former attorney), did contain notations indicating that 

petitioner had admitted the prison slaying. At the evidentiary hearing, Nelson indicated that part of his sentencing 

strategy was to point out that, although petitioner admitted 

previous crimes, he maintained his innocence in this case, 

thereby fortifying his attempt at credibility. This notation 

could have misled defense counsel at the time of sentencing 

on the retrial in 1978. 

At the evidentiary hearing , the witness Christine 

Fetters did testify that petitioner had made admissions to 

her saying that, with respect to the murder of Alfred 

Falcon, it was something that had to be done because he was 

a beast and was taking over the prison. In view of this, 
the slip of defense counsel in saying it was a matter of 

self-defense casts petitioner's relationship with the 

incident in more favorable light than what the prosecution 

could possibly have presented if it became a contested 

point. 

Defense Counsel John L. Adams, Jr.: 

Adams graduated from the University of Montana Law 

School in 1954. He became a Deputy County Attorney in 

Billings, Montana, in 1956, and County Attorney in 1965. He 

served as County Attorney until 1970. From 1970 to the 

present he has served continuously as court-appointed 

defense counsel in the District Court. His legal work has 

been almost exclusively in the field of criminal law and he 

has tried at least 200 felony cases, including several 

capital cases. 

During the first trial of the codefendants, Adams was 

appointed to represent Paul Bad Horse. He was assisted in 

his representation of Bad Horse by Jerome Cate, who was 

selected by the Indian tribe. 

After Adams was appointed counsel to Fitzpatrick for 

the second trial, he discussed Fitzpatrick's case with Chris 

EJelson, Fitzpatrick's attorney during the original trial. 

In addition, Nelson gave Adams most of his work product, 

including witnesses' statements. Nelson had withdrawn from 

representing Fitzpatrick during the second trial because he 

had recently joined a firm which included Mr. Sinclair, a 

co-prosecutor in the first trial. 

Adams furnished Fitzpatrick with much of the original 

file and later supplemented it. In addition, he and Fitzpatrick went over the notes and material Fitzpatrick 
provided. 

Adams was assisted in the defense by Larry Cole, the 

court-appointed special investigator, who was at that time 

an attorney licensed in Wyoming and awaiting licensing in 

Montana. 

After defendant Radi was acquitted on retrial, Adams 

discussed the case with Mr. Stephens, Radi's counsel, and 

was given some of Stephens' case material. 

Adams has known Fitzpatrick since the 1960's and made 

an appearance once as prosecutor in a previous charge 

against him. Adams has defended Fitzpatrick on other 

charges at least twice. 

In 1972, Adams represented Fitzpatrick on "burglary, 

drugs and other offenses." Prior to the 1978 trial, Adams 

also represented Fitzpatrick when he was charged with 

assault involving a weapon which resulted in Fitzpatrick's 

imprisonment. 

Prior to the second trial, Adams filed a number of 

motions on petitioner's behalf, including a motion to limit 

any testimony of Gary Radi, a notice to rely on the defense 

of alibi listing thirty-seven witnesses, a supplement to the 

alibi defense, discovery motions, a motion to dismiss, a 

motion for appointment of a special investigator, a motion 

for a change of venue, and a subsequent motion, submitted at 

petitioner's request, to withdraw the motion for change of 

venue. In addition, Adams requested that a number of 

subpoenas and subpoenaes duces tecum issue on behalf of 

Fitzpatrick and responded to the State's motion for production of evidence. Additional motions were submitted by 

defense counsel prior to trial and a brief relating to the 
testimony of Edwin Bushman was submitted during the course 

of the trial. At the conclusion of the trial, Adams 

submitted fifty-seven jury instructions for the court's 

consideration. 

Conflict of Interest: 

Petitioner asserts that because defense counsel had 

represented Bad Horse at the first trial, a conflict of 

interest existed in that counsel could not attempt to shift 

suspicion from Fitzpatrick to Bad Horse. However, as a 

result of the first trial, Bad Horse had been acquitted of 

the charges of deliberate homicide and aggravated kidnapping. Clearly he cannot be tried again for those same 

charges in this case. Consequently, we find petitioner's 

argument totally without merit. 

We note that at no point in the allegations of the 

petition or amended petition which served as the basis of 

the evidentiary hearing below did petitioner or his counsel 

allege conflict of interest as a basis for the charge of 

ineffective assistance of counsel. At the hearing prior to 

the 1978 retrial, petitioner indicated he was satisfied with 

counsel and wanted to withdraw his petition to have Adams 

removed from the case. The issue of conflict of interest 

was not raised on the appeal of petitioner's second 

conviction. As noted previously, it was not included in 

petitioner's list of allegations which prompted the evidentiary hearing. Now it appears. It cannot be that petitioner has suddenly become aware of such a charge. In 

Petition of Fitzpatrick (1970), 154 Mont. 512, 464 P.2d 507, 

an action filed by defendant pro se in this Court, Fitzpatrick raised the issue that he was denied his right to 
counsel when certain incriminating statements were made by 

him to police following a shooting. 

Petitioner was next before the Montana Supreme Court 

on the direct appeal of his conviction for the second degree 

murder of Alfred Falcon. State v. Fitzpatrick (1973), 163 

Mont. 220, 516 P.2d 605. That appeal was unsuccessful. 

Subsequently, petitioner filed a pro se petition for a writ 

of habeas corpus in this Court the following year. The 

issue in that case was that Fitzpatrick's alibi defense had 

been hampered by a delay in appointment of counsel. This 

inaction on the part of the State was found to have deprived 

Fitzpatrick of effective representation by counsel. 

Given Fitzpatrick's extensive prior experience in the 

crlminal courts and r ight-to-counsel issues, his statement 

that he abandoned his early attempts to have Adams removed 

as his counsel because he feared being left without counsel 

on this capital case are without merit. 

Further, after thorough review of the entire file in 

this matter, it is clear that petitioner's allegation of 

conflict of interest is also without merit. 

Ineffective Assistance of Counsel: 

The standard of review for ineffective assistance of 

counsel claims within this jurisdiction is known as the 

"reasonably effective assistance" test and may be stated as 

follows : "Persons accused of crime are entitled to the 

effective assistance of counsel acting within the range of 

competence demanded of attorneys in criminal cases." In 

order to find ineffective assistance of counsel, the errors 

made must be "errors a reasonably competent attorney acting 

as a diligent conscientious advocate would not have made, 
for that is the constitutional standard." Cooper v. Fitzharris (9th Cir. 1978), 586 F.2d 1325, cert. denied, 440 

U.S. 974 (1979). 

In addition, when the claim of ineffective assistance 

of counsel rests upon specific acts and omissions of 

counsel, relief will be granted only if it appears that the 

defendant was prejudiced by counsel's conduct. Cooper, 586 

F.2d at 1331. 

Further, "claimed inadequacy of counsel must not be 

tested by a greater sophistication of appellate counsel, nor 

by that counsel's unrivaled opportunity to study the record 

at leisure and cite different tactics of perhaps doubtful 

efficacy. Success is not the test of efficient counsel, 

frequently neither vigor, zeal, nor skill can overcome the 

truth." State v. Forsness (1972), 159 Mont. 105, 110, 495 

P.2d 176, 179. And, ". . . Hindsight cannot now be used to 

say what perhaps could have been done to achieve a possible 

but highly speculative result . . ." State v. Noller 

(1963), 142 Mont. 35, 38, 381 P.2d 293, 294. 

Petitioner contends the proper standard for determining ineffective assistance of counsel is that enunciated in 

Washington v. Strickland (5th Cir. 1983) , 673 F.2d 879; 

(Unit B) (en banc) 693 F.2d 1243, cert. granted, June 6, 

1983. The Washington test is as follows: (1) petitioner 

has the burden of proving that his right to effective 

assistance of counsel was violated; (2) then petitioner must 

establish prejudice that worked to his actual and 

substantial disadvantage; and (3) a writ must be granted 

unless state proves counsel's ineffectiveness was harmless 

beyond a reasonable doubt. Petitioner has the burden to 
demonstrate not only a possiblity of prejudice but that it 

worked to his actual and substantial disadvantage. 

Washington, 693 F.2d at 1258. 

Washington also recognizes that certain lines of 

defense may be contradictory and thus incapable of being 

presented persuasively in tandem. Washington, 693 F.2d at 

1253. Such was the case here. Petitioner alleges in his 

amended petition that certain witnesses should have been 

called to testify regarding certain evidence found in Radi's 

vehicle. To call such witnesses and elicit such testimony 

would have been totally incongruent with petitioner's alibi 

defense. 

Even under the Washington analysis, it is presumed 

that an attorney is competent and has rendered effective 

assistance. We have reviewed the voluminous record in this 

case and the extensive and superb memorandum prepared by the 

District Court Judge which accompanies the order dismissing 

petitioner's amended petition. We find that even under the 

Washington analysis, petitioner has failed to meet his 

burden. 

The State of Florida has sought and been granted a 

writ of certiorari from the United States Supreme Court 

regarding the Washington case. Florida has adopted the 

analysis seen in Knight v. State (Fla. 1981), 394 So.2d 997, 

and United States v. DeCoster (D.C. Cir. 1979), 624 F.2d 

196. Knight requires: (1) specific omissions/acts must be 

detailed in an appropriate pleading; (2) defendant has 

burden of proof to show substantial and serious deficiency 

measurably below the performance of competent counsel; and 

(3) that within the circumstances of the case, the prejudice 
was so extensive that there was a likelihood it affected the 

outcome of the case. (4) The State then has an opportunity 

to rebut by showing beyond a reasonable doubt that there was 

no prejudice. 

Even under the Knight/DeCoster standard, petitioner 

here has failed to meet his burden of proof. A review of 

the record of this case clearly shows that petitioner has 

failed to meet any standard argued by his counsel. 

An additional element in this case is the concept of 

waiver. Montana recognizes that a defendant may waive a 

potential conflict of interest. State v. Gallagher (1972), 

162 Mont. 155, 161, 509 P.2d 852, 855. In determining 

whether such a conflict has been waived, it is necessary to 

consider the facts and circumstances surrounding the case, 

including the background, experience and conduct of the 

defendant. United States v. Partin (9th Cir. 1979), 601 

F.2d 1000. We hold there was no conflict here; however, 

even if there had been a possible conflict of interest 

issue, petitioner has waived his right to raise such an 

issue by his conduct and statements at the pretrial hearing 

regarding possible appointment of other counsel, by his 

failure to broach the subject at trial and/or on appeal, and 

by his knowledge from the outset that his counsel had 

defended a codefendant during the first trial. Critical to 

this determination is the fact that this petitioner is 

extremely knowledgeable of the criminal justice system and 

has argued ineffective assistance of counsel issues in the 

past. 

Petitioner has attempted to show that a per se 

conflict in interest existed in counsel's defense of Bad 
Horse in the first trial and of petitioner Fitzpatrick in 

the second trial. However, the authorities cited fail to 

support this contention. 

Petitioner also suggests a different standard should 

apply in capital cases. We decline to set a separate 

standard for judging effective assistance of counsel in a 

capital case. The reasons for refusal are well expressed in 

Washington v. Watkins (5th Cir. 1981), 655 F.2d 1346, 1357: 

"Innumerable practical problems would be 

presented by such a holding. For example, 

since effective assistance is not judged 

by hindsight, the heightened standard 

would have to apply to all cases in which 

a capital offense was charged, regardless 

of whether the jury subsequently convicted the defendant of a non-capital offense 

or refused to impose the death penalty in 

a capital case. Recognition of a 'sliding 

scale' for this constitutional standard 

would also suggest, for example, that a 

defendant charged with aggravated assault 

would be entitled to a more effective 

lawyer than one charged with simple assault or public intoxication. We decline 

to embark on such a treacherous path." 

We agree. Our research has failed to disclose any 

case from any jurisdiction which has held that there is a 

constitutional requirement of a separate and higher standard 

for assistance of counsel in capital cases. 

In conclusion, we find that, regardless of the tests 

advocated by petitioner, he has failed to support his 

allegation of ineffective assistance of counsel. Consequently, we hereby affirm the District Court in dismissing 

petitioner's amended petition. 

?44 Chief ~ustike d~,@
We concur: 

nold 01-sen, Dist%ict Judge, sitting in place 

of Mr. Justice John C. Sheehy 

Mr. Justice Frank B. Morrison, Jr., specially concurring: 

I concur in the result. However, I do believe that 

Mr. Adams's representation of Mr. Bad IIorse created a 

potential conflict of interest. My vote to affirm is 

based upon waiver on the part of petitioner, Bernard 

Fitzpatrick. 

Mr. Justice Daniel J. Shea, dissentidg: 

This is a death penalty case, and I remain convinced 

that defense counsel did not do all that he could do, and 

not even all that he should have done. For example, based 

on my previous dissents relating to the prejudicial and 

inconsistent jury instructions and jury verdicts, to which 

defense counsel did not object, a basis exists to reverse 

the conviction not only for the legal error inherent in the 

instructions and verdict forms, but also for the failure of 

defense counsel in a capital case to he more careful about 
the instructions and verdict forms on which a death 

penalty may ultimatedy be based. 

Therefore, I would order a new trial.