NO. 93-227

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

STATE OF MONTANA,

Plaintiff and Respondent,

-vsDARRIN DOMINIC BRADLEY,

Defendant and Appellant.

APPEAL FROM: District Court of the Seventeenth Judicial District,

In and for the County of Blaine,

The Honorable Leonard Langen, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Patrick F. Flaherty, Attorney at Law, Great Falls,

Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General: Jennifer

Anders, Assistant Attorney General, Helena, Montana

David Gorton, Deputy Blaine County Attorney,

Chinook, Montana

Submitted on Briefs: October 21, 1993

Decided: November 30, 1993

Filed:

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CLERK SF SUPREME COURT #! '>b*,,:~~- :,g

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STATE OF MONTANA ~-:,,’ &
Justice Karla M. Gray delivered the Opinion of the Court.

Darrin Dominic Bradley (Bradley) appeals his convictions of

the offenses of negligent homicide, negligent vehicular assault and

failure to wear a seat belt, claiming ineffective assistance of

counsel and an unconstitutional exclusion of Native Americans from

the pool of prospective jurors. We conclude that the performance

of Bradley's counsel was not deficient and that Bradley has failed

to establish that Native Americans were improperly excluded from

the jury pool. Therefore, we affirm the District Court.

On June 5, 1992, Bradley was involved in a three-vehicle

accident while driving eastbound on U.S. Highway 2 near Chinook,

Montana. Tammy Young (Young), another driver involved in the

accident, suffered multiple traumatic injuries and died at the

scene of the accident. The third driver, Matt Molyneaux

(Molyneaux), received minor injuries.

Bradley was charged with, and pled not guilty to, negligent

homicide, negligent vehicular assault, and failure to wear a seat

belt. After a jury was impaneled, Bradley, a Native American,

moved the District Court to discharge the jury, arguing that all

Native Americans listed as prospective jurors had been excluded

from serving on the jury. The District Court ascertained the basis

for each peremptory challenge and challenge for cause, concluded

that there was no concerted effort to exclude Native Americans, and

denied the motion. The jury convicted Bradley on all charges

following a trial held December 2, 1992.

After eliciting extensive statements from the family and

2
friends of Young and Bradley, the District Court sentenced Bradley

to concurrent ten-year and six-month terms of incarceration for

negligent homicide and negligent vehicular assault, respectively.

The court suspended the sentences provided that Bradley obtain

substance abuse counseling, perform community service, and serve 60

days in the county jail. Additionally, the terms of his suspended

sentences required Bradley to pay a portion of his income into a

trust fund established for the benefit of Young's two children and

for any counseling required by Molyneaux and Young's husband and

children as a result of the accident. The court also ordered

restitution totaling $9,865.49 and fined Bradley an additional $20

for the seat belt violation.

Bradley moved for a new trial claiming that he had received

ineffective assistance of counsel. The District Court denied the

motion because it was not filed within thirty days following the

verdict as required by 5 46-16-702, MCA. Bradley now requests this

Court to set aside his convictions and remand for a new trial,

reasserting his ineffective assistance of counsel claim and arguing

that Native Americans were unconstitutionally excluded from the

pool of prospective jurors by the court's failure to have them

personally served with jury summonses.

Should Bradley's convictions be reversed on the basis that he

received ineffective assistance of counsel?

Bradley asserts numerous deficiencies in his counsel's

performance at trial, including the failure to 1) give an opening

statement: 2) move that the State's witnesses be excluded from the

3
courtroom; 3) obtain an accident reconstruction expert and other

favorable witnesses: 4) object to the introduction of his blood

test result from the state crime laboratory; 5) object to testimony

by the investigating officers and treating medical personnel

regarding Bradley's state of sobriety: 6) offer jury instructions:

and 7) present an effective closing argument. On the basis of

these deficiencies, Bradley contends that his constitutional right

to the effective assistance of counsel was violated.

This Court uses the two-part test set forth in Strickland v.

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, to

evaluate ineffective assistance of counsel claims. State v. Senn

(1990) I 244 Mont. 56, 58-59, 795 P.2d 973, 975. Under the first

prong of that test, the defendant must prove that counsel's

performance was deficient by establishing that it fell below the

range of competence reasonably demanded of attorneys in light of

the Sixth Amendment. The second prong requires the defendant to

demonstrate that counsel's deficiency was so prejudicial that it

denied the defendant a fair trial. To satisfy this requirement,

the defendant must demonstrate a reasonable probability that the

result of the proceeding would have been different but for

counsel's deficient performance. -,Senn 244 Mont. at 59.

We address first the alleged deficiencies regarding counsel's

failure to object to evidence of intoxication. Bradley contends

that counsel's performance was deficient because she did not object

to the testimony of Dan Friede, Ric Munfrada, and Lorrain Dupree

indicating that Bradley was intoxicated. According to Bradley,

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"lay persons" are incompetent to testify to intoxication under Rule

701, M.R.Evid.

Rule 701, M.R.Evid., limits the testimony of lay witnesses to

opinions or inferences which are rationally based on the witness'

perceptions and which further a clear understanding of the witness'

testimony or the determination of a fact at issue. This rule does

not preclude lay witnesses from testifying to a person's state of

intoxication. Commission Comment, Rule 701, M.R.Evid.; State v.

Hardy (1980), 185 Mont. 130, 134, 604 P.Zd 792, 795.

The testimony of Friede, Munfrada, and Dupree met the

requirements of Rule 701, M.R.Evid. These three witnesses

testified that they had observed Bradley following the accident and

that, based on their observations, he was intoxicated. The

testimony was relevant to the jury's determination of whether

Bradley committed negligent homicide and negligent vehicular

assault. Thus, there was no basis for counsel to object to the

testimony of Friede, Munfrada and Dupree under Rule 701, M.R.Evid.

Bradley also contends that counsel's performance was deficient

because she failed to object on hearsay grounds to the introduction

of the state crime laboratory report indicating a blood alcohol

content of 0.12. The report is hearsay under Rule 801(c),

M.R.Evid., if it is introduced for the truth of the results shown.

It may still be admitted into evidence, however, if "otherwise

provided by statute, these rules, or other rules applicable in the

courts of this state." Rule 802, M.R.Evid.

Rule 803(8), M.R.Evid., specifically provides that a written

5
report from the state crime laboratory is not excluded by the

hearsay rule if the State timely notifies the court and opposing

party in writing of its intention to offer the report in evidence.

Here, the State complied with the notification requirement

contained in the rule. It indicated on the omnibus checklist filed

more than three months prior to trial that the report had been

supplied to Bradley. Indeed, Bradley acknowledged in his brief

supporting a motion to suppress evidence that the State had

disclosed its intent to introduce the report. Thus, the report

containing the blood test result was within the hearsay exception

contained in Rule 803(8), M.R.Evid.

Bradley also contends that counsel's performance was deficient

because she did not object to the foundation laid by the State for

introducing the report. Specifically, he argues that the

foundation was inadequate because the State did not call the

laboratory analyst who performed the test as a witness to complete

the chain of custody regarding the blood sample.

In State v. Zackuse (1992), 253 Mont. 305, 833 P.2d 143, we

determined that the State was not required to call as a witness

each person who handled drug evidence in order to establish its

chain of custody. Zackuse, 833 P.2d at 145. A completed form

issued by the state crime laboratory that included a chain of

custody log listing the names of the persons at the lab who handled

the evidence was sufficient to establish the final link in the drug

evidence's chain of custody. Zackuse, 833 P.2d at 145.

Here, Munfrada and Greg Szudera, a sergeant with the Montana

6
Highway Patrol, testified at length concerning the chain of custody

of the blood sample from the time it was drawn to when it was

mailed to the crime laboratory. The State also introduced a

completed form from the crime laboratory which listed the names of

all the persons at the lab who handled the blood sample. This form

is sufficient to complete the chain of custody under Zackuse. The

testimony elicited and the crime lab form provided sufficient

foundation for admitting the blood test report.

Counsel's failure to oppose the admission of evidence, absent

a legal basis for doing so, does not constitute deficient

performance. See State v. Christenson (1991), 250 Mont. 351, 358-

60, 820 P.2d 1303, 1308-09. Thus, we conclude that Bradley's

counsel's failure to object to the testimony and state crime

laboratory report regarding his state of intoxication does not

constitute deficient performance and, therefore, does not meet the

first prong of the Strickland ineffective assistance of counsel

test.

The remaining deficiencies in counsel's performance alleged by

Bradley also do not provide a basis for reversing his convictions.

Decisions regarding the presentation of opening and closing

statements, submission of jury instructions, procurement of

witnesses, and exclusion of witnesses from the courtroom constitute

trial tactics. This Court will not second-guess trial tactics and

strategy when evaluating counsel's performance. State v. Johnstone

(1990) I 244 Mont. 450, 465, 798 P.2d 978, 987.

Finally, we note that Bradley relies extensively on material

7
outside the record to establish an exculpatory theory of the

accident in an effort to show that counsel erred by failing to

procure its own expert witness and call an investigating insurance

adjuster as a witness. This Court's review of allegations on

direct appeal, however, is confined to the record. Section 46-20-

701, MCA: State v. Schoffner (1991), 248 Mont. 260, 268, 811 P.2d

548, 553. Thus, the non-record material provides no basis for

finding a deficiency in counsel's performance.

We conclude that the performance of Bradley's counsel was not

deficient under the first prong of the Strickland test. Therefore,

we hold that Bradley is not entitled to a reversal of his

convictions and a new trial based on his ineffective assistance of

counsel claim.

Is Bradley entitled to reversal of his convictions because the

District Court failed to have Native Americans personally served

with jury summonses?

After the jury had been selected, Bradley's counsel orally

moved the court to discharge the jury, arguing that no Native

Americans had been selected to serve. The District Court

determined that the State had a legitimate nondiscriminatory reason

for exercising each of its peremptory challenges and that Bradley's

counsel had agreed with all challenges for cause. On that basis,

the District Court concluded that the State had made no concerted

effort to exclude Native Americans from the jury. On appeal,

Bradley asserts no error by the District Court in this regard.

On appeal, Bradley advances a nebulous argument concerning the

8
District Court's failure to have jury summonses personally served

on Native Americans who had been served by mail and had failed to

appear. He apparently argues that the District Court's failure to

order personal service excluded Native Americans from the pool of

prospective jurors, violating his constitutional right to a jury

drawn from a representative cross-section of the community under

Duren v. Missouri (1979), 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.Zd

579, and constituting purposeful discrimination based on race under

Whitus v. Georgia (1967), 385 US. 545, 87 S.Ct. 643, 17 L.Ed.Zd

599. We disagree.

To establish a prima facie case under either m or Whitus,

a defendant is required to show a statistical discrepancy between

the percentage of prospective jurors and persons in the community

who are members of the allegedly excluded class. Duren, 439 U.S.

at 364; Whitus, 385 U.S. at 550-51. Bradley has failed to make any

showing that the pool of prospective jurors contained an inadequate

representation of Native Americans. Thus, based on the record

before us, we cannot conclude that Bradley's right to a jury drawn

from a cross-section of his community was violated or that

discrimination based on race occurred.

We hold that the failure to personally serve the Native

Americans with

reversal of his

Affirmed.

jury summonses does not entitle Bradley to a

convictions.

9
we concur:

10
November 30, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following

named:

Patrick F. Flaherty

Attorney at Law

625 Central Ave. W., #lOl

Great Falls, MT 59404

Hon. Joseph P. Mazurek, Attorney General

Jennifer Anders, Assistant

Justice Bldg.

Helena, MT 59620

Donald A. Ranstrom, County Attorney

C. David Gorton, Deputy

P.O. Box 188

Chinook, MT 59523

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF, MGNTANA