NO. 95-069 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

STATE OF MONTANA, 

Plaintiff 

v. 

DANIEL GEORGE SWAN, 

Defendant 

and Respondent, 

PI[:!\! ;: t; 19% 

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: 

John Keith, Attorney at Law, 

Great Falls, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

Elizabeth L. Griffing, Assistant Attorney 

General, Helena, Montana 

Brant Light, Cascade County Attorney, 

Great Falls, Montana 

Filed: 

Submitted on Briefs: August 29, 1996 

~~~id~d: November 26, 1996 
Justice Charles E. Erdmann delivered the opinion of the Court. 

Daniel George Swan appeals from the judgment and conviction, 

and order denying his motion for a new trial by the Eighth Judicial 

District Court, Cascade County. After a jury trial, Swan was 

convicted of felony aggravated assault pursuant to § 45-5-202(1), 

MCA. We affirm. 

The issues on appeal are as follows: 

1. Did the District Court err in instructing the jury as to 

the lesser included offenses? 

2. Was Swan deprived of his right to be present during all 

critical stages of the proceeding when he was not present at an 

in camera hearing? 

3. Did the District Court err when it joined the felony 

assault charge and the felony aggravated assault charge? 

4. Did the District Court err in denying Swan's motion for 

a new trial based on his claim of ineffective assistance of 

counsel? 

FACTS 

On July 12, 1993, Swan was charged with felony assault arising 

out of a fight between he and Ralph Toulouse, a/k/a Ralph Whitney, 

at the home of Lindsey Martin. Later that year, on September 8, 

1993, Swan was an inmate at the Cascade County Jail when Toulouse 

was placed in the same cell as Swan. Swan and Toulouse fought in 

jail that night and as a result of this fight Toulouse was severely 

injured on his face and head. Toulouse ' s right eyelid was 
lacerated and his right tear duct was severed, resulting in a 

permanent injury. Toulouse also suffered a broken nose, broken 

facial bones, broken teeth, and his head was severely swollen. 

Swan did not suffer any injuries which required medical attention. 

As a result of this fight, Swan was charged with aggravated 

assault, a felony, pursuant to 5 45-5-202(1), MCA. 

The felony assault charge and the felony aggravated assault 

charge were consolidated. At trial Swan was represented by 

H. William Coder. Swan was acquitted of the felony assault but was 

found guilty of the aggravated assault. Swan filed a motion for a 

new trial on February 22, 1994, alleging that the jury had been 

improperly instructed regarding application of the assault as a 

lesser included offense, that the two cases were improperly joined, 

and that Coder had provided ineffective assistance. A hearing was 

held and the District Court denied the motion for new trial. Swan 

appeals from the judgment and conviction and the denial of the 

motion for new trial. 

ISSUE 1 

Did the District Court err in instructing the jury as to the 

lesser included offenses? 

The standard of review of jury instructions in a criminal case 

is whether the instructions, as a whole, fully and fairly instruct 

the jury on the law applicable to the case. State v. Brandon 

(1994), 264 Mont. 231, 237, 870 P.2d 734, 737. 
Swan argues that the District Court erred in its instructions 

because there was no instruction similar to 1-011, MCJI, defining 

lesser included offense or advising the jury how to proceed in 

determining whether to consider a lesser included offense. Swan, 

however, did not offer an instruction regarding lesser included 

offense at the time of settling the instructions. We have 

previously stated that this Court will not predicate error upon the 

failure to give an instruction when the party alleging the error 

failed to offer the instruction. State v. Courchene (1992), 256 

Mont. 381, 847 P.2d 271; State v. Evans (1991), 247 Mont. 218, 806 

P.2d 512. Swan not only failed to make a timely objection to the 

instructions, he expressly agreed to the instructions that were 

given. He cannot now directly raise this issue on appeal. Section 

46-20-104, MCA. 

ISSUE 2 

Was Swan deprived of his right to be present during all 

critical stages of the proceeding when he was not present at an 

in camera hearing? 

Swan argues that his constitutional and statutory right to be 

present at every stage of his trial was infringed when he was not 

present during an in camera discussion of a note from the jury. 

The jury sent a note to the District Court Judge inquiring whether 

the assault instruction applied to the felony aggravated assault as 

well as the felony assault. Both counsel were present for the 
discussion of the note. Neither counsel objected to the court's 

answer. 

Swan did not make an objection at the time the note was 

discussed nor did he raise this objection in his motion for new 

trial. Section 46-20-104, MCA, provides that failure to make a 

timely objection constitutes waiver of the objection except as 

provided in § 46-20-701(2), MCA. The exceptions found in 

§ 46-20-701(2), MCA, do not apply in this situation. We therefore 

decline to address this issue raised for the first time on appeal. 

ISSUE 3 

Did the District Court err when it joined the felony assault 

charge and the felony aggravated assault charge? 

The State filed a Just notice in the aggravated assault case, 

giving notice of its intent to introduce evidence of the earlier 

fight. At the hearing on the Just notice, an oral motion was made 

by Coder to continue the felony aggravated assault trial until 

after the felony assault trial. State v. Just (1979), 184 Mont. 

262, 602 P.2d 957. The parties also discussed the possibility of 

consolidating the cases. There is no record of the oral motion for 

consolidation by Coder; however, the District Court's order 

granting consolidation specifically provides that Coder, with 

Swan's consent, requested and agreed to consolidating the two 

cases. 

Swan's objection to the consolidation is untimely and we 

decline to address the objection except in regard to his assertion 
that Coder's performance was deficient when moving for and agreeing 

to such joinder, which is discussed in Issue 4. 

ISSUE 4 

Did the District Court err in denying Swan's motion for a new 

trial based on his claim of ineffective assistance of counsel? 

Swan's motion for new trial also sought to reverse the 

judgment on the grounds of ineffective assistance of counsel. Swan 

asserts that the court abused its discretion in denying his motion 

for new trial because of alleged errors committed by Coder in 

regard to the instruction of the jury, the failure to have Swan 

present during all critical stages of the trial, the joinder of the 

charges, and on the basis that Coder misrepresented his experience 

when he stated that he had previously participated in a felony 

trial. 

We review a district court's decision to grant or deny a 

motion for new trial to determine whether the court abused its 

discretion. State v. Hatfield (l995), 269 Mont. 307, 888 P.2d 899; 

State v. Mummey (1994), 264 Mont. 272, 871 P.2d 868. This Court 

applies the two-part test from Strickland v. Washington (1984), 466 

U.S. 668, to evaluate claims of ineffective assistance of counsel. 

First, Swan must establish that Coder's performance was deficient 

in that counsel did not act within the range of competence demanded 

of attorneys in criminal cases. Strickland, 466 U.S. at 687; State 

v. Baker (1995), 272 Mont. 273, 901 P.2d 54. In making this 

determination, judicial scrutiny of counsel's actions is highly 
deferential and counsel's performance is strongly presumed to fall 

within a wide range of reasonable professional assistance. Kills 

on Top v. State (1995), 273 Mont. 32, 901 P.2d 1368. Second, Swan 

must establish that he was prejudiced by his counsel ' s performance, 

and that "but for" Coder's performance the result of the trial 

would have been different. Strickland, 466 U.S. at 687. Swan 

therefore must establish both deficient performance and prejudice 

to prevail on a claim of ineffective assistance of counsel. 

Furthermore, this Court will not second-guess trial tactics and 

strategy. Baker, 901 P.2d at 59. 

Swan first argues that Coder's performance was deficient 

because he failed to request an instruction describing how the 

lesser included offense of assault should have been considered by 

the jury in regard to the aggravated assault charge. Section 

46-16-607(2), MCA, requires that a lesser included offense 

instruction must be given when there is a proper request by one of 

the parties and when, based on the evidence, the jury could be 

warranted in finding the defendant guilty of a lesser included 

offense. We have previously held that a lesser included offense 

instruction is not required if it is not supported by the evidence. 

State v. Kills on Top (1990), 241 Mont. 378, 394, 787 P.2d 336, 

346. 

Coder testified at the hearing on Swan's motion for new trial 

that he did not believe there was "any evidence to support" a 

lesser included offense instruction for the aggravated assault 
charge. Coder explained that "simply by virtue of the fact that 

those [Toulouse's] injuries were so serious and they were 

permanent." Although Toulouse did not testify as to his injuries, 

the record supports Coder's assessment of these injuries. 

Aggravated assault pursuant to 5 45-5-202(1), MCA, is 

committed if the defendant purposely or knowingly causes serious 

bodily injury to another. The jury was instructed that "serious 

bodily injury" is "bodily injury which creates a substantial risk 

of death or which causes serious permanent disfigurement or 

protracted loss or impairment of the function or process of any 

bodily member or organ." Section 45-2-101(64), MCA. Expert 

medical testimony is not required to prove the permanency of an 

injury where the permanency is undisputed and apparent from the 

nature of the injury itself. State V. Bower (1992), 254 Mont. 1, 

10, 833 P.2d 1106, 1112. 

The injuries inflicted by Swan on Toulouse were uncontested. 

The permanency of these injuries was uncontroverted. Lindsey 

Martin testified to the scarring on Toulouse's face, the continuous 

tearing of the eye, and the sagging of his eye. Coder properly 

interpreted the law in determining that there was not evidence to 

support a jury finding of the lesser included offense of assault as 

it applied to the aggravated assault charge. We have previously 

held that a defense counsel's performance is not deficient as a 

matter of law where counsel properly interprets the law. Brown v. 

State (Mont. 1996), 922 P.2d 1146, 1152, 53 St. Rep. 692, 696. 
Swan's argument that Coder's performance was deficient when he did 

not request the lesser included offense instruction for the 

aggravated assault charge fails the first part of the Strickland 

test, as counsel's performance was within the range of competence 

demanded of attorneys in criminal cases and therefore we need not 

address the second prong of the test. 

Swan next asserts that Coder's failure to have Swan present 

when the jury sent a note to the District Court Judge asking if the 

simple assault applied to both cases was in violation of his Sixth 

Amendment rights under the United States Constitution to be present 

at every stage of his trial, and also a violation of § 46-16-121, 

MCA. Swan, however, was present at all stages of the trial where 

his presence was essential to a fair and just determination of a 

substantive issue. State v. Hart (1981), 191 Mont. 375, 625 

P.2d 21; State v. Schenk (1968), 151 Mont. 493, 444 P.2d 861. 

The District Court specifically found that the note from the 

jury on whether assault could be considered in both cases did not 

indicate confusion, but rather demonstrated that the jury knew 

"what to do with it and only wanted to know if it applied to both 

offenses." The absence of Swan from the discussion of the legal 

question by the jury was not injurious to his right of due process 

or his right of confrontation. Furthermore, in order to fulfill 

the Strickland two-part test Swan is required to show that but for 

counsel's performance the outcome would have been different. Swan 

has made no showing that the jury did not fully understand the 
operation of the lesser included offenses when it sent the inquiry 

to the court, and he also has made no showing that if the jury had 

formally been given the lesser included offense instruction the 

outcome would have been different. Coder's performance was not 

deficient in this area. 

Swan's third assertion is that Coder was ineffective in 

allowing the cases to be joined. At the hearing on the motion for 

new trial, Coder testified that he wanted the cases consolidated 

for strategic reasons. Coder testified he believed that evidence 

of the earlier fight would support Swan's self-defense argument and 

would show that Toulouse held a grudge against Swan and that many 

of the same witnesses would be called to testify. Coder also 

testified Swan had agreed to the consolidation. 

Swan, however, asserts there were no common witnesses 

necessary for both cases, as the victim did not testify. He argues 

that the State was simply trying to avoid the necessity of 

complying with the Just notice rule requirements by having the 

matters consolidated. 

We have previously held that questions of the propriety of the 

joinder of offenses in a single trial are subject to an abuse of 

discretion standard. State v. Slice (1988), 231 Mont. 448, 753 

P.2d 1309. This Court has frequently stated that it will not 

second-guess trial tactics or strategy of defense counsel. Brown, 

922 P.2d at 1148. Coder testified that he made a tactical decision 

to allow the cases to be tried at the same time because it would 
allow "an excellent claim for self defense." Furthermore, Swan 

agreed to the consolidation. Under Strickland, Coder is entitled 

to rely upon his client's representations and decisions. 

Strickland, 466 U.S. at 691. We therefore hold that Swan's 

allegations of ineffective assistance of counsel by allowing 

joinder of the two cases must fail. 

Swan's final assertion under his theory of ineffective 

assistance of counsel is that Coder misrepresented his experience 

when he stated that he had had a felony trial in Glasgow. This 

argument fails to address the merits of Coder's representation and 

does not reflect upon Coder's performance. We thus decline to 

address this argument as we have determined that the District Court 

did not abuse its discretion in denying Swan's motion for new trial 

on the basis that Coder's representation of Swan was deficient. 

Af f irmed. 

We concur: 

Justice