No. 85-432 INTHE SUPREME COURT OF THE STATE OF MONTANA 1986

STATE OF MONTANA, Plaintiff and Respondent,

-VSSTEVEN WADE ELLIOTT, Defendant and Appellant.

APPEAL FROM: District Court of the SixthJudicial District, In a.nd forthe County of Sweet Grass, The Honorable Byron Robb, Judge presiding.

COUNSEL OF RECORD:

For Appellant: Knuchel & McGregor; Daniel B. McGregor, Livingston, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana James M. Scheier, Asst. Atty. General, Helena G. Thomas Biglen, County Attorney, Big Timber, Montana

Submittea on Briefs: Jan. 30, 1986 Decided: April 24, 1986

Filed: 

### APR

### 24

## 1986

B

- ClerkMr. Justice Fred J. Weber delivered the Opinion of the Court. DefendantMr. Elliott appealshis convictionofdeliberate homicide in the District Court for Sweet Grass County, Montana. He was sentenced to a term of 100 years. We affirm. The issues are: 1. Was Mr. Elliott's right of due process violated at his sentencing hearing because matters not included in the presentence investigationreportwere considered.? 2. Was InstructionNo. 11properly given? 3. Was Mr. Elliott denied effective assistance of counsel because his attorney 1) failed to investigate and call witnesses, and 2) secured a waiver of speedy trial vrithout informing Mr. Elliott of the consequences of the waiver? In July 1976, the body of 86-year-old William Feldtwas found sitting in a chair in his home in Big Timber,Montana. There were no signs of struggle in the house, and no visible injuries on the body. The coroner estimated that Mr. Feldt had been dead for about two days, and determined that he had died of natural causes. Because of the amount of time since death,thebodywas not embalmed,butwas instead buried in a special air-space and water-tight container inside a casket. InMay 1983, defendant, then 22 years old and incarcerated in the Lewis and Clark County Jail, contacted law enforcement authorities and gave a confession inwhich he said he had lcilled Mr. Feldt. He said he had been a paperboy in Rig Timber, and that Mr. Feldt, a neighbor, had been one of his customers. Hewent intoMr. Feldt'shouse to collect for the paper and when Mr. Feldt paid him, he noticed a large amount of money in Mr. Feldt's wallet. Defendant turned as if to leave,but remained in thehouse and hid in the kitchenfor about 15 minutes. When he saw that Mr. Feldt had his back turned, defendant walked up behind him and stabbed him intheback with a knife. The oldman fellintoa chair, the knife still j.n his back. Defendant sat down in a chair

across the room "towait till he was dead," then walked over tothe victim with another knife and cut his throat. NoticingthatMr. Feldt's eyes were stillopen, defendant poured a bottle of rubbing alcohol over his head to see if his eyes would blink. He then took Mr. Feldt's wallet, which had about $240 init,withdrew the knife from the victim's back, and left. He laterburied the wallet and threw theknives in the dump. Defendant Mr. Elliott repeated his confession in writing and for the Department of Justice, with minor variations on where he disposed of the wallet and the knives. Mr. Feldt's body was exhumed forexamination. Attrial,

a pathologist testified that he had found evidence of the wounds Mr. Elliotthad described, and thatMr. Feldt had died from internal loss of blood caused by the stabwound tohis back. Other details of Mr. Elliott's confessions were also corroborated. At trial, Mr. Elliott recanted his confessions. He testified that he had seen a 12-year old acquaintance walk out of Mr. Feldt's house holding a wallet and some money. Mr. Elliott testified that the acquaintance told him tokeep quiet, and gave him half the money. Atthe time of trial, this acquaintance was deceased. Mr. Elliott testified that he had given the confessions falsely, and thatatthetimehe gave them he was sodepressed thathe wanted todie. I Was Mr. Elliott's right of due process violated athis sentencing hearing because matters not included in the presentence investigation report were considered?The presentence investigation report submitted to the District Court showed that Mr. Elliott had parole revoked in April 1.983 for "paroleviolation

## - concealedweapon." At the sentencing hearing, the District Court, over Mr. Elliott's objection,received into evidence a written report and additional testimony by defendant's former parole officer about the reasons that parole was revoked. Mr. Elliott contends that this constituted consideration of other violations or criminal activity and was error under State v. Stewart

(1977),175Mont. 286, 573 P.2d 1138. In Stewart, the district judge personally interviewed several witnesses after trial. No record was made of the interviews and no notice was given that the interviews would be conducted. This Court held that the judge had improperly acted as a fact-gatherer and had infringed upon the defendant's due process right to confronthis accusers. Stewart, 573 P.2d at 1148. Mr. Elliott's effort to apply the holding in Stewart to the facts of this case fails. The additional-information in this case was not obtained from the sentencing judge's independent investigation,but from the person who prepared the presentence investigation report. There is no due process right for a defendant to have advance notice of all facts that make up a sentencing recommendation. State v. Pearson

(Kont. 1985), 704 P.2d 1056, 1060, 42 St.Rep. 1253, 1257. Mr. Elliott was represented by counsel at the sentencing hearing, had the opportunity to cross-examine the witness regarding the new material, had the opportunity to rebut the

new material, and could have called for a continuance in order to call his own rebuttal witnesses. This situation, unlike the one in Stewart, does not present a due process violation.Was InstructionNo. 11properly given? The court instructed thejury that: Neither the prosecution nor the defense is required to call as witness allpersons who are shown tohave been present at any of the events involved in the evidence, orwho may appear tohave some knowledge of the matters in question in this trial; nor is the prosecution or d.efense required to produce as exhibits all objects or documents that have been referred to in the testimony, or the existenceof which may have been suggested by theevidence. The jury will always bear in mind that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence and no adverse inferencesmay be drawn from his failuretodo so. Mr. Elliott objects to this instruction, arguing that it appears to lessenthe burden of proof required of the State. The State argues that the effect of thisinstruction is to aid the jury in evaluating the evidence on the basis of what is before them, not on the basis of what has not been brought before them. Californiahas approved theuse of this type of instruction for a number of years. - See People v. Reingold (Calif. 1948), 197 P.2d 175, 191. The jury was also instructed separately on the burden of proof in a criminal

case. Weconclude that giving instructionNo. 11 did not in any way affect the State's burden of proof. We hold that giving instructionNo. 11was not error.

Was Mr. Elliott denied effective assistance of counsel because his attorney 1) failed to investiga.te and call witnesses, and 2) secured a waiver of speedy trialwithout informing Mr. Elliott of the consequences of the waiver? We ha-verecently adopted a two-fold testfordetermining whether effectiveassistanceof counselwas denied. Statev.Robbins (Mont. 1985), 708 P.2d 227, 232, 42 St.Rep. 1440, 1444, citing Stricklandv. Washington (1984)

### , 1-04S.Ct. 2052, 2064. First, the defendantmust show that counsel'sperformance was deficient. This Court has used the "reasonably effective assistance" test of whether a defendant's counsel actedwithin the range of competencedemanded of attorneys in criminal cases. State v. Rose (1980), 187Mont. 74, 86, 608 P.2d 1074, 1081. Second, the defendant must show that the deficient performance prejudiced him so seriously as to deprivehim of a fair trial. Defendantargues thathewas denied effective assistance of counsel because his attorney failed to call as witnesses certain persons listed in the pretrial order. He alleges in his brief that his attorney failed to even contact these persons. Attached to his brief are his affidavit to that effect and another affidavitthatdefendant was ondrugswhen he made his confessions. We do not consider the affidavits because they are outside the record. State v. Dess (Mont. 1984), 674P.2d 501, 502, 41 St.Rep. 31, 33. The decision to call or not call witnesses is a matter of trial tactics, which are normally not grounds for a determination tha-t counsel's performance was deficient. State

### v. Lopez (1980)

## , 185Mont. 187, 191, 605 P.2d 178, 180-1. The record fails to substantiate defendant's allegations that the witnesses not called could have presented evidence which would weaken his confessionsand the corroborating evidence againsthim. Mr. Elliott's argument that he was uninformed of the consequencesofhis waiver of speedy trial is contradictedby the record. The record shows that the District Court judge explained to 

### Mr. Elliott his right of speedy trial at the time the waiver was made, and that Mr. Elliott agreed to waive the right. Mr. Elliott later wrote to his attorney,

### asking that the waiver be rescinded. No such action was taken,but at the next hearing onmotions in thismatter, the DistrictCourt askedMr. Elliott ifhewas satisfiedwith his counsel's performance, and he said thathe was. We conclude that there is no evidence that counsel's performance was deficient in securingthewaiver of speedy trial. Affirmed.

We concur: