No. 85-432 

IN THE 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 Sixth Judicial District, 

In a.nd for the 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 

- Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant Mr. Elliott appeals his conviction of deliberate 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 investigation report were considered.? 

2. Was Instruction No. 11 properly 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 Feldt was 

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, the body was not embalmed, but was instead buried in a 

special air-space and water-tight container inside a casket. 

In May 1983, defendant, then 22 years old and incarcerated in the Lewis and Clark County Jail, contacted law enforcement authorities and gave a confession in which 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. He went into Mr. Feldt's house 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 the house and hid in the kitchen 
for about 15 minutes. When he saw that Mr. Feldt had his 

back turned, defendant walked up behind him and stabbed him 

in the back with a knife. The old man fell into a chair, the 

knife still j.n his back. Defendant sat down in a chair 

across the room "to wait till he was dead," then walked over 

to the victim with another knife and cut his throat. Noticing that Mr. Feldt's eyes were still open, 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 in it, withdrew the knife from the victim's back, 

and left. He later buried the wallet and threw the knives 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 for examination. At trial, 

a pathologist testified that he had found evidence of the 

wounds Mr. Elliott had described, and that Mr. Feldt had died 

from internal loss of blood caused by the stab wound to his 

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 to keep 

quiet, and gave him half the money. At the time of trial, 

this acquaintance was deceased. Mr. Elliott testified that 

he had given the confessions falsely, and that at the time he 

gave them he was so depressed that he wanted to die. 

I 

Was Mr. Elliott's right of due process violated at his 

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 "parole violation - concealed weapon." 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), 175 Mont. 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 confront his 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 Instruction No. 11 properly given? 

The court instructed the jury that: 

Neither the prosecution nor the defense 

is required to call as witness all persons who are shown to have been present 

at any of the events involved in the 

evidence, or who may appear to have 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 

existence of which may have been suggested by the evidence. 

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 inferences may be 

drawn from his failure to do so. 

Mr. Elliott objects to this instruction, arguing that it 

appears to lessen the burden of proof required of the State. 

The State argues that the effect of this instruction 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. California has approved the use 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. We conclude that giving instruction No. 11 did not in 

any way affect the State's burden of proof. We hold that 

giving instruction No. 11 was 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 trial without 

informing Mr. Elliott of the consequences of the waiver? 

We ha-ve recently adopted a two-fold test for determining 

whether effective assistance of counsel was denied. State v. 
Robbins (Mont. 1985), 708 P.2d 227, 232, 42 St.Rep. 1440, 

1444, citing Strickland v. Washington (1984) , 1-04 S.Ct. 2052, 

2064. First, the defendant must show that counsel's performance was deficient. This Court has used the "reasonably 

effective assistance" test of whether a defendant's counsel 

acted within the range of competence demanded of attorneys in 

criminal cases. State v. Rose (1980), 187 Mont. 74, 86, 608 

P.2d 1074, 1081. Second, the defendant must show that the 

deficient performance prejudiced him so seriously as to 

deprive him of a fair trial. 

Defendant argues that he was 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 affidavit that defendant was on drugs when 

he made his confessions. We do not consider the affidavits 

because they are outside the record. State v. Dess (Mont. 

1984), 674 P.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) , 

185 Mont. 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 

confessions and the corroborating evidence against him. 

Mr. Elliott's argument that he was uninformed of the 

consequences of his waiver of speedy trial is contradicted by 

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 on motions in this matter, the 

District Court asked Mr. Elliott if he was satisfied with his 

counsel's performance, and he said that he was. We conclude 

that there is no evidence that counsel's performance was 

deficient in securing the waiver of speedy trial. 

Affirmed. 

We concur: