No. 81-328 INTHE SUPREIE COURT OF THE STATE OF MONTANA 1982

STATE OF MONTANA, Plaintiff and Respondent,

VS

# . WILLIAM "BILL" MORIGEAU, Defendant and Appellant.

Appeal from: DistrictCourt of the Fourth Judicial District, In and for the County of Lake Honorable John Henson, Judge presiding. Counsel of Record: For Appellant: Turnage and McNeil, Polson, Montana C. B. McNeil argued, Polson, Montana James A. Manley argued, Polson, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Steve Johnson argued, Assistant Attorney General, Helena,

Montana Richard I?. Heinz, County Attorney, Polson, Montana Duke R. Wolf argued, Deputy County Attorney, Polson,

Montana

Submitted: October 14, 1982 Decided: December 29, 1982Mr. Justice Fred J. Weber delivered the Opinion of the Court.

The defendant, William "Bill"Morigeau, was charged in the DistrictCourt of the Fourth Judicial District, Lake County, with two counts of felony burglary. A jury returned

a verdict of guilty toboth counts. Morigeau was sentenced to ten years inprison and designated a dangerous offender. Morigeau appeals and presents the following issues: 1. Whether the evidence of the State's immunized witness was sufficientlycorroborated? 2. Whether defendantwas provided effective assistance of counsel attrial? The verdict isvacated and the cause isremanded for a

new trial. While working together on a Housing and Urban Development Project atPablo, Montana, Morigeau and Kevin Groat became friendsand decided to sharea house inRonan, Montana. They began moving into the house on October 28, 1980. Morigeau testified thathe, Groat, and a Mexican, Fortino Gonzales who had been stayingwith Groat, drank some beer asthey

were moving into the house. That night allthreeman slept in the living room of thehouse as it was the only room which was heated. According toGroat's testimony, before themen went to sleep, he and Morigeau went toDavis, Inc., which is located

across the street from the apartment Groat was moving out of. Groat broke a window and climbed inand then letMorigeau in through a door. They began picking up tools and began carrying small boxes over toMorigeau's carwhich was parked

across the street. They drove the car over toDavis, Inc. to load the largerboxes which weighed asmuch as 195 lbs. They returned tothe house and unloaded the car. The tool boxes were divided up and placed inthemen's respective bedrooms and some inthebasement.'Morigeau testified that on the next day,he,Groat,'and "theMexican" finished moving Groat's belongings into the house using the Morigeau car,and that the first time he saw the items taken from Davis, Inc. was when they moved them from Groat's apartment to the house. Morigeau testified that he let Groat keep some of the tool boxes in the closet in his bedroom because Groat'sbedroom was full. That evening Morigeau and Groatwere driving to Polson when Morigeau's car broke down. 

### A sheriff'sdeputy gave then a ride to Ronan and dropped them off in front of Pete's Conoco which is two blocks from the house. The sheriff's deputy testified that he dropped themen off at approximately 12:30 a.m. Morigeau testified that after themen walked to the house they both walked to their boss's house where Morigeau left a note on the windshield of the boss's truck telling him that the car had broken down "sowe had to walk and didn't get home till just now (3:OO) sowe won't be able to make it to work today 

# . . ." They then returned to the house and Morigeau went to sleep in the living room and assumed Groat had also. According to Groat's testimony, after being dropped off and walking to the house, the twomen returned to Pete's Conoco. Groat broke a window, climbed in, and opened a door to letMorigeau in. He testified thatMorigeau

was looking for new tires and picked out six and they both rolled them over to the house and placed four tires in the basement and left two outside. They returned to Pete's Conoco and took a saw,bolt cutter, and a case of Pennzoil. The sawwas placed on a shelf in the basement of the house while the oil and bolt cutter were put in Morigeau's closet. After a third trip, change, candy bars, and six cans of oil

treatmentwere taken back to the house. Groat testifiedthey then walked to their boss's house and left a note on thewindshield of his truck and then went to the house and went to sleep. The following afternoon, sheriff's deputies searched the house with the consentof Morigeau. When asked about the items in his closet,Morigeau stated that they were therewhen he moved in except for the oilwhich was his. At trial Morigeau testified thathe first saw the oil and bolt cutterwhile the sheriffwas conducting his search,and although he had hung clothing in the closet earlier that day, he didn'tnotice the case of oil. A logging chain missing from Davis, Inc., was found in the trunk of Morigeau's

car.

Whether the evidence of the State's immunized witness

was sufficiently corroborated? Morigeau argues that the record is void of any evidence of entry by him into either the Davis, Inc. or Pete'sConoco building and is void of any evidence of theft by him except for the uncorroborated testimony of the State's immunized witness, Groat, who voluntarily confessed to being an accomplice. Section 46-16-213,MCA, requires corroboration of the testimony of an accomplice. "Aconviction cannotbe had on the testmony of one responsible or legally accountable for the same offense,as defined in 45-2-301, unless the testimony is corroboratedby other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if itmerely shows the commission of the offense or the circumstances thereof." The general principles of corroborating evidence are stated in State

### V. Kemp (1979)182Mont. 383, 387, 597 P.2d"Tobe sufficient,corroborating evidence must showmore than that a crime was in fact committed or the circumstancesof its commission. Statev. Keckonen (1938), 107 Mont. 253, 263, 84 P.2d 341, 345. Itmust raisemore than a suspicion of the defendant's involvement in, or opportunity to commit, the crime charged. Statev. Gangner (1957), 130Mont. 533, 535, 305 P.2d 338, 339. But corroborative evidence need not be sufficient,by itself, to support a defendant's conviction or even to make out a prima facie case againsthim. State v. Ritz (1922), 65Mont. 180, 186, 211 P. 298, 300; StateV. Stevenson (1902), 26 Mont. 332 334, 67 P. 1001, 1002. Corroborating evidence may be circumstantial (Statev. Harmon (1959),135Mont. 227, 233, 340 P.2d 128, 131) and can come from the defendant or his witnesses. Statev. Phillips (19531, 127Mont. 381, 387, 264 P.2d 1009, 1012." Morigeau contends that without Groat's testimony "there is not sufficientevidence to convict the defendant of eit-herburglary." As noted above, that is not the test. Corroborative evidence need not be sufficient to support a conviction or evenmake out a prima facie case,but need only tend to connect the defendant with the commission of the offense. 46-16-213,MCA.

~n statev. Williams (1979) Mont

# . , 604 P.2d 1224, 36 St.Rep.2328, the defendantwas storing property taken in a burglary athis mother-in-law's house and he gave other property to another party. This constructive possession of theproperty takenwas held by this Court to be sufficientcorroborating evidence to clearly connect the defendant with the commissionof the offense. Mont

# . In Statev. Rose (1980) 

### , 608 P.2d 1074, 37 St-Rep.642, the only independent evidence which tended to connect the defendantwith the burglary was his possession of the guns which were stolen. The defendant tried to explain away his possession of the stolen guns,but this Court held that the defendant's possession of the guns was sufficientas a matter of law to corroborate the accomplice's testimony and thatwhether the explanations were sufficientlysatisfactory to raise a reasonable doubt in the minds of the jurors as to defendant'sconnection with the offense charged

was a question for the jury's determination. Rose, 608 P.2d at 1078-80, 37 St. Rep. 647;Statev. Broell (1930),87 Mont. 284, 292, 286 P. 1108, 1111. In the present case, tool boxes,identified as belonging to Davis, Inc., were found in Morigeau's closet. A bolt cutter, identified as belonging to Pete'sConoco, was also found inMorigeau's closet. A logging chain, identified as belonging to Davis, Inc., was found in the trunk of P40rigeau1s

car. Morigeau's possession of these items is sufficient as

a matter of law to corroborate Groat's testimony. Morigeau chose to testify in an attempt to explain away the possession. The weight of that evidence is for the jury. Morigeau's testimony also contains elements which could be found corroborating in nature by the jury. We hold there was sufficient corroborative evidence, tending to connect Morigeau with the commission of the offense in order to satisfy the statutory requirements of corroboration of the testimony of Groat. 11. Whether defendantwas provided effective assistance of counsel at trial? Morigeau raises three areaswhere defense counsel did not provide effective assistance of counsel: 1. failure to locate and interview certainwitnesses, 2. failure to conduct pretrial discovery or file pretrail motions, 3. allowing defendant's criminal record into evidence. The effectiveness of counsel issue was returned to the District Court for an extraordinary hearing. The lower court found defense counsel used everymeans available to locatewitnesses. The court,however, failed to make anyfindings with regard to defense counsel bringing defendant's criminal record into evidence. During the hearing defense counsel stated, "Ihad no intention of bringing in his criminal record. What I intended to do was to have him testify that he was on parole, from a prior offense,which I believe itwas an unrelated offense of forgery." During the trial Morigeau was questioned by his defense counsel aboutprevious offenses: "Q. Bill, have you ever been convicted of any other felonies other than that? A. Yes, I have.

"Q. Howmany? A. Assault, two. "Q. Two others? A. Yes. "Q. Assault and what else? A. Assault and escape. "Q. Where was that? A. Assault was in Boise, Idaho;and the escapewas in Spokane, Washington. "Q. As an adult,have you ever been convicted of any burglaries or thefts? A. No, sir. "Q. Have you ever been charged with any burglaries? A. Yes, sir. "Q. I beg your pardon? A. Yes, sir. "Q. What? A. A burglary in Boise. "Q. What was the disposition of that charge? A. Itgot dismissed. "Q. Why? A. Illegal search and seizure." During cross examination, the Statebrought out the details of the previous burglary charge. "Q. Do you recall a violation being reported by enteringwithoutpermission, a Western Cabinet shop in Garden City, Idaho,and removing a 

### CB radio and camera? 

### A. That was dismissed. "Q. On what basis was itdismissed? A. Illegal search and seizure. "Q. Was thatviolation true? A. No. "Q. But the basis for its dismissalwas an illegal search and seizure? A. Yes,"Q. What was seized illegally at that time? A. 

### I don't know. There was some stolen articles in the house that me and this other man occupied. He let them in. He let them into the housewhere they found the stuff, and 

### Iwas charged for it. "Q. Is that similar to what happened here? A. Exactly. "Q. So in other words, therewas a timewhen you were charged with having stolen something based on a supposed illegal search? A. Yes. "Q. This other individual,do you feel thathe was responsible for that theft? A. He was responsible. "Q. Was he charged with that? A. No, he wasn't, as far as I know. "Q. You seem to have a lot of occurrences, then, or at least one previous occurrence where you were found with stolen property; is that correct? 

### A. Yes. "Q. Are you often found with stolenproperty? A. NO, sir." In closing argument,defense counsel argued that (1) Groat knew of Morigeau's criminal record and that itwould be easy to put the blame on him, (2)Morigeau was too streetwise to do such amateurish burglaries, and (3)Morigeau had toomuch to lose as a parole violator to become involved in the burglaries. To determine whether a defendant has been denied effective assistance of counsel, this Court uses the "reasonably effective assistance" test,which has been 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.'" Statev. Mont. Rose (1980) 

## , 608 P.2d at 1081, 37 St.Rep. at 649-650; Fitzpartick

### v. State Mont. (1981) 

## , 638 P.2d 1002, 1007, 38 St.Rep.1448, 1451;Cooper v. Fitzharris (9thCir. 1978) 586 F.2d 1325, 1330. "'Claimed inadequacy of counselmust not be tested by a greater sophisticationof appellate counsel, nor by that counsel's unrivaled opportunity to study the record at leisure and citedifferent tactics of perhaps doubtful efficacy. Success is not a test of efficient counsel, frequently neither vigor, zeal, nor skill can overcome the truth.'" Statev. Rose, 608 P.2d at 1082,37 St.Rep. at 652; Statev. Forsness (1972) 159Mont. 105, 110, 495 P.2d 176, 178-179.

### To sustain a claim of ineffective assistance, a criminal defendantmust show that the error allegedly committed by his lawyer resulted in prejudice to him and stemmed from neglect or ignorance rather than from informed,pro- 

### -- fessionaldeliberation. State

### V. Rose, 608 P.2d at 1081, 37 St.Rep. at 651;United Statesv. Bosch (1stCir. 1978)

Defense counsel's choice of the tactic to show that Morigeau was on parole is not at issue here. However, this Court will consider the effect the introduction of Morigeau's entire criminal record including the burglary charge in Idaho. By bringing in the previous criminal charges,defense counsel opened Morigeau to cross examination on the previous charges. The resultwas that the jury had before it evidence fromMorigeau demonstrating his involvement in

an alleged burglary where Morigeau claimed another man brought stolen articles into the house where he was staying. This evidence would nothave been admissible except for the actions of defense counsel. The evidencewas extremely prejudicial showing circumstances almost identical to thepresent case. This indicates neglect or ignorance on thepart of counsel and satisfies the State



### v. Rose test. We hold that the introduction and direct examination of Morigeau by his counsel regarding his previous crimes and chargeswere notwithin the range of competencedemanded of attorneys in criminal cases. During the trial the following jury instructionwas given: "You are instructed that possession of stolen property shall not constituteproof of the commission of the offense of theft. Such fact shall place a burden on the possessor to remove the effect of such fact as a circumstance to be considered with all the other evidencepointing to his guilt."On retrial this instruction,which is taken from section 45-6-304, MCA, should not be used. This Court in Statev. Kramp (1982) Mont. 

### , 651P.2d 614, 39 St. Rep. 1819, declared section 45-6-304,MCA, unconstitutional and held that any instruction using the language of that statute was prejudicial to a defendant. This is another ground for reversal. The instruction takes away defendant's presumption 

### of innocence and forces him to testify,by placing a burden on him either to disprove unlawful possession or to prove lawful possession. Statev. Kramp 651 P.2d at 621, 39 St.Rep. at 1827. For further discussion and a suggested alternate instruction see Statev. #ramp. The verdict is vacated and the cause is remanded for

a new trial.

We concur: