NO. 95-160 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

WARREN DEAN BROWN, 

Petitioner and Appellant, 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Jeffrey Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kevin E. Vainio, Attorney at Law, 

Butte, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General 

Elizabeth Griffing, Ass't Attorney General 

Helena, Montana 

Carolyn A. Clemens, Deputy County Attorney, 

Helena, Montana 

Filed: 

Submitted on Briefs: March 7, 1996 

Decided: July 26, 1996 
Justice Karla M. Gray delivered the Opinion of the Court. 

Warren Dean Brown (Brown) appeals from the order and judgment 

entered by the First Judicial District Court, Lewis and Clark 

County, denying his petition for postconviction relief. We affirm. 

We address the following dispositive issues:, 

1. Did the District Court err in concluding that Brown was 

not denied effective assistance of counsel at trial? 

2. Did the District Court err in concluding that Brown was 

not denied effective assistance of counsel on appeal? 

3. Did the District Court err in concluding that the claimed 

violations of Brown's privilege against self-incrimination and his 

right to be free from unreasonable searches were not properly 

before it? 

In 1988, the State of Montana (State) charged that Brown had 

committed the offense of felony assault by purposely or knowingly 

causing bodily injury to Kathie Brown (Kathie) by striking her in 

the head with a handgun. The charge arose out of a domestic 

dispute between Brown and his wife Kathie, who had been separated 

for approximately one month at the time. According to Kathie's 

testimony, she and Brown got into an argument and Brown slapped her 

in the face and hit her in the nose with his fist, causing her nose 

to bleed. Brown held his pocket knife to her neck while forcing 

her to clean the blood from the floor and then elongated a wire 

coat hanger, wrapped it around her wrist and led her around by it. 

Subsequently, Brown removed a .22 caliber pistol from a cardboard 

file in the bedroom, loaded it and pointed it at her; thereafter, 

he struck her several times with the gun, at least once on the 

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forehead and then on the top of her head. Kathie escaped with one 

of the couple's children and Brown took the other child back into 

his apartment. Officers arrested Brown in his bedroom some hours 

later and, when asked where the gun was, he directed them to the 

.22 pistol located in the file cabinet. 

Brown also testified at trial. He acknowledged having an 

argument with Kathie, but denied slapping her, putting a knife to 

her throat, leading her around the apartment with a coat hanger and 

pistol-whipping her. He admitted that she got a bloody nose, but 

offered a much more innocent explanation than Kathie's about how it 

occurred. He testified that he willingly gave the police the 

pistol, which he was in the process of refurbishing and which 

lacked part of the firing mechanism. 

Brown was convicted and sentenced to ten years in prison, with 

five years suspended, for the felony assault and another ten years 

in prison, with five years suspended, for use of a weapon in the 

assault. We affirmed the conviction on appeal, concluding that 

substantial evidence established the essential elements of felony 

assault. See State v. Brown (1989), 239 Mont. 453, 457, 781 P.2d 

281, 284. 

Brown petitioned the District Court for postconviction relief 

in 1993. Among,other things, he contended that his conviction was 

based on evidence which violated his Fifth Amendment privilege 

against self-incrimination and on other evidence obtained via 

searches which violated his Fourth Amendment rights, and that he 

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was denied effective assistance of counsel both at trial and on 

appeal. The District Court denied the petition and Brown appealed. 

1. Did the District Court err in concluding that Brown was 

not denied effective assistance of counsel at trial? 

Brown's petition for postconviction relief and supporting 

affidavit alleged that deficiencies in the performance of his trial 

counsel, Edmund F. Sheehy, Jr. (Sheehy), resulted in Brown being 

denied effective assistance of counsel at trial. In responding to 

Brown's petition, the State submitted Sheehy's sworn affidavit 

addressing Brown's allegations. 

The District Court held a hearing on Brown's petition. Brown 

testified but d~id not call Sheehy as a witness in order to examine 

him regarding his affidavit. The court subsequently determined 

that Sheehy's performance was not deficient and concluded that 

Brown was not denied effective assistance of counsel at trial. We 

review a district court's denial of a petition for postconviction 

relief to determine whether substantial evidence supports the 

district court's findings and whether its conclusions of law are 

correct. State v. Baker (1995), 272 Mont. 273, 280, 901 P.2d 54, 

58 (citing Walker v. State (1993), 261 Mont. 1, 6, 862 P.Zd 1, 4). 

A petitioner seeking to reverse a district court's denial of 

a petition for postconviction relief based on a claim of 

ineffective assistance of counsel bears a heavy burden. Baker, 901 

P.2d at 59. We apply the two-part test originally set forth in 

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 

L.Ed.2d 674, in evaluating a petitioner's claim of ineffective 

assistance of counsel. Baker 901 P.Zd at 59; Walker, 862 P.2d at -I 

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4. Under the first Strickland prong, the petitioner must establish 

that counsel ' s performance was deficient pursuant to the 

"reasonably effective assistance ' test; if counsel acted within the 

range of competence demanded of attorneys in criminal cases, the 

performance rendered was not deficient. Baker, 901 P.2d at 59. 

Moreover, judicial scrutiny of counsel's actions must be highly 

deferential and counsel's performance is strongly presumed to fall 

within the wide range of reasonable professional assistance. Kills 

On Top v. State (1995), 273 Mont. 32, 49, 901 P.2d 1368, 1379 

(citing Strickland, 466 U.S. at 688-89). 

To satisfy the second Strickland prong, the petitioner must 

establish that the deficient performance prejudiced him and 

deprived him of a fair trial. -, Baker 901 P.2d at 59. Prejudice is 

evaluated by whether a reasonable probability exists that, but for 

counsel's deficient performance, the outcome of the trial would 

have been different. -I Baker 901 P.2d at 59. A petitioner must 

establish both deficient performance and prejudice to prevail on a 

postconviction claim of ineffective assistance of counsel, and this 

Court will not second-guess trial tactics and strategy. Baker, 901 

P.2d at 59. 

Brown argues that Sheehy's representation of him was deficient 

in the following regards: 

a. Sheehy did not move to suppress, or otherwise attempt to 

exclude from evidence, Brown's statements to the arresting officers 

about the location of the handgun and the handgun itself, and did 

not object to the late endorsement of the State's expert witnesses 

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from the Montana State Crime Laboratory (Crime Lab) who examined 

the handgun: 

b. Sheehy did not move to suppress, or otherwise attempt to 

exclude from evidence, a coat hanger and pocket knife; and 

c. Sheehy did not communicate with him regarding these 

decisions 

Brown asserts that these deficiencies in Sheehy's performance 

prejudiced him and deprived him of a fair trial. We address 

Brown's contentions in turn. 

a. The statements, handgun and expert 

testimony 

It is undisputed that, at the time of Brown's arrest, he was 

questioned regarding the whereabouts of the handgun prior to being 

informed of his rights under Miranda v. Arizona (1966), 384 U.S. 

436, 86 s.ct. 1602, 16 L.Ed.Zd 694. Brown told the officers that 

the weapon was in his file cabinet and the officers located it 

there. 

Sheehy did not move to suppress either Brown's statements 

regarding the location of the handgun or the handgun itself. Both 

were admitted into evidence at trial without objection by Sheehy. 

The State submitted the handgun to the Crime Lab for 

examination by a firearms expert, William Newhouse (Newhouse), and 

a serologist, Julie Long (Long) The State moved for the 

endorsement of Newhouse and Long as witnesses on July 7, 1988, four 

days before trial, noting Sheehy's lack of objection in its motion. 

The handgun was manufactured in the late 1800s and was missing 

its trigger. Kathie and Brown had found it in pieces in the trash 

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and Brown had been refurbishing it. Kathie testified that Brown 

and a friend had fired the handgun once while "playing around" with 

it and that, in addition to hitting her with it, he also threatened 

to shoot her if she did not do as she was told by Brown. Brown 

testified that he had never fired the handgun, that it would be 

very dangerous to fire it and that he had not gone near the handgun 

on the evening in question. He also testified that he had not 

cleaned the gun properly after finding it and that that could 

explain the spot of blood in the center of the underside of the 

barrel. 

Newhouse testified that the handgun was capable of firing a 

bullet, notwithstanding the absence of both a trigger and a cocking 

mechanism. He further testified that he had fired the handgun two 

times. 

Long testified that the handgun had a small amount of blood on 

it and that the blood was human in origin. She further testified 

that there was not enough blood on the handgun for her to determine 

whether the blood was, in fact, Kathie's. Sheehy did not object to 

the admission of either expert's testimony. 

Brown contends that his statements, the handgun and the expert 

testimony were used effectively by the prosecution in convicting 

him. On that basis, he argues that Sheehy's failure to file 

motions or make objections to exclude them was unwise, did not gain 

him any advantage and constitutes ineffective assistance of 

counsel. 
The District Court found that Sheehy's performance before and 

during trial was not deficient but, rather, that Sheehy made 

certain strategic choices based on the evidence as he saw it. 

Sheehy's affidavit sets forth his tactical reasons for not 

attempting to exclude Brown's statements or the handgun itself at 

some length. His overall strategy involved attempting to discredit 

Kathie's testimony concerning the events in question by arguing 

that, had Brown actually hit Kathie on the head with the handgun 

and pointed it at her, as Kathie described, he would have hid it 

rather than placing it in the file cabinet and would not have told 

the officers where to find it. Sheehy also attempted to use the 

handgun to discredit Kathie by arguing that, if Brown had struck 

her on the head with the handgun as she described, there would have 

been much more blood on the handgun than the small amount that was 

not even identifiable as Kathie's. In short, Sheehy attempted to 

affirmatively use the handgun, and Brown's cooperation in directing 

the officers to it, to buttress Brown's position that the assault 

never occurred and to undermine Kathie's version of the events. In 

this regard, Brown testified at the hearing on his petition that he 

understood that the trial would turn, in large part, on Kathie's 

credibility versus his own. 

Sheehy's affidavit also discusses his reasons for not 

objecting to the late endorsement of Newhouse and Long as expert 

witnesses for the State. According to Sheehy, Brown told him that 

the handgun would not discharge safely and, as a result, Sheehy 

felt it needed to be test-fired. Furthermore, it was Sheehy's 
opinion that the spot on the handgun should be tested to determine 

whether it was merely rust, rather than blood, in hopes of negating 

Kathie's version of the events altogether. As it turned out, the 

spot was blood, but not identifiable as Kathie's, and Sheehy used 

that fact in attempting to undermine her testimony. 

Again, as with Brown's statements and the handgun itself, 

Sheehy's lack of objection to both the late endorsement of Newhouse 

and Long as witnesses and their testimony at trial was part of his 

OVerall strategy of attempting to discredit Kathie and her 

testimony. We do not second-guess trial tactics and strategy. 

Baker, 901 P.Zd at 59. 

Finally, in this regard, Brown contends that Sheehy's tactical 

decisions were unwise and did not gain him any advantage. Brown 

cites to no authority for his position that the extent to which 

trial counsel's tactics and strategy ultimately are successful 

properly impacts on a court's evaluation of whether counsel's 

performance was deficient, and we are aware of none. 

We conclude that substantial evidence supports the District 

Court's finding that Sheehy's decisions regarding Brown's 

statements, the handgun, and the State's expert witnesses were 

based on his trial strategy and, therefore, do not constitute 

deficient performance. 

b. The coat hanger and pocket knife 

At trial, the State introduced the coat hanger Kathie alleged 

Brown had wrapped around her wrist and used to lead her around the 

apartment, as well as the pocket knife Brown allegedly had held to 

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her throat, during the assault. Kathie had provided these items to 

the State. 

Kathie and Brown were separated when the assault occurred and 

she did not have a key to Brown's apartment. Kathie testified that 

she entered Brown's apartment twice after his arrest. She entered 

through a window on the first occasion and recovered Brown's keys 

to the apartment and the hanger. She testified that, at the 

request of the Helena Police Department, she entered the apartment 

again to retrieve Brown's knife. Sheehy did not move to suppress, 

or otherwise object to the admission of, these items. 

Brown contends it was undisputed at trial that Kathie obtained 

both the hanger and the knife by entering Brown's apartment without 

Brown's permission and that she retrieved the knife at the request 

of the Helena Police Department. He argues, therefore, that 

Sheehy's failure to move to suppress evidence resulting from 

searches he contends were unlawful under the Fourth Amendment 

constitutes ineffective assistance of counsel. 

According to Sheehy, he personally investigated Kathie's claim 

that she had conducted the search for the knife at the request of 

the Helena Police Department and concluded that no such request had 

been made. Had he concluded otherwise, he would have considered a 

motion to suppress the knife. He intended to argue that Kathie's 

story regarding the law enforcement request to enter Brown's 

apartment to retrieve evidence was inherently unbelievable and 

thereby use it to attack her credibility as a witness. Indeed, 

Sheehy's strategy was to use Kathie's testimony in this regard to 

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argue that all of her testimony should be rejected due to her lack 

of truthfulness on this material matter. Once again, Brown asks us 

to second-guess Sheehy's trial strategy. We refuse to do so. See 

Baker, 901 P.2d at 59. 

We conclude that substantial evidence supports the District 

Court's finding that Sheehy's decisions regarding the hanger and 

the knife were based on his trial strategy and, therefore, do not 

constitute deficient performance. 

c. Lack of communication and consultation 

Brown also alleges on appeal that Sheehy did not consult or 

communicate with him regarding the tactical and strategic decisions 

not to move to suppress, or otherwise object to the admission of, 

the evidence resulting from the alleged violations of his Fifth and 

Fourth Amendment rights. He asserts that Sheehy's lack of 

communication in these regards is undisputed and that the lack of 

communication constitutes ineffective assistance of counsel. 

We observe at the outset that these alleged deficiencies in 

communication were not set forth in either Brown's original 

petition for postconviction relief, his amended petition or his 

supporting affidavit. Nor were they addressed in Brown's 

supporting memorandum. They arose only via passing reference 

during Brown's testimony at the hearing on his petition. Thus, 

while Brown's allegations in this regard are undisputed, that is so 

because they were not raised in his petition or supporting 

documents. Presumably for that reason, the District Court did not 

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address them in denying the petition and the State does not address 

them on appeal. 

Section 46-21-105(l), MCA, provides that all grounds for 

relief under § 46-21-101, MCA, must be raised in the petitioner's 

original or amended petition and that grounds for relief not raised 

generally are waived. Brown did not raise these specific 

allegations of deficient performance by Sheehy in his original or 

amended petition and, as a result, they are waived and procedurally 

barred. Section 46-21-105, MCA; see Baker, 901 P.2d at 58. In 

addition, because this is a direct appeal from the District Court's 

denial of Brown's petition for postconviction relief, we decline to 

address these allegations of ineffective assistance of counsel not 

first properly raised in the trial court. Baker , 901 P.2d at 58. 

Because Brown did not establish the deficient performance 

prong of the Strickland test, we need not address the prejudice 

prong. We hold, therefore, that the District Court correctly 

concluded that Brown was not denied effective assistance of counsel 

at trial. 

2. Did the District Court err in concluding that Brown was 

not denied effective assistance of counsel on appeal? 

Randi M. Hood (Hood), chief public defender for Lewis and 

Clark County, represented Brown on appeal. She raised the issue of 

whether there was sufficient evidence to support Brown's felony 

assault conviction. Brown -I 781 P.2d at 282. 

Brown's petition for postconviction relief alleged denial of 

effective assistance of counsel on appeal. Specifically, he 

alleged that Hood's performance was deficient in that she failed to 

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raise issues that he requested, including the substantive issues of 

Fifth and Fourth Amendment violations resulting in admission of the 

gun, hanger and knife and a claim of ineffective assistance of 

trial counsel. Brown also contended that Hood was deficient in 

failing to provide him with an opportunity for input regarding his 

appellate brief before it was filed. In responding to Brown's 

petition, the State submitted Hood's sworn affidavit addressing 

Brown's allegations regarding her representation on appeal. Brown 

did not call Hood as a witness at the hearing on his petition. 

The District Court found that Hood had determined that the 

issues Brown wished to raise were either not supported by the 

record or not relevant. The court also found that, after 

discussion of the chances of success regarding the issues Brown 

wanted to raise, Brown agreed with Hood that only the issue 

regarding sufficiency of the evidence to support the felony charge 

should be pursued. Finally, the court found that Hood mailed Brown 

a copy of the appellate brief, together with an explanatory letter, 

before she filed the brief. Based on these findings, the District 

Court found that Hood's performance was not deficient and that 

Brown was not denied effective assistance of counsel on appeal. As 

discussed above, we review the court's findings to determine 

whether they are supported by substantial evidence; we review the 

court's conclusions to determine whether its interpretation of the 

law is correct. Baker -I 901 P.2d at 58. 

With regard to the substantive issues of whether Brown's Fifth 

and Fourth Amendment rights were violated and whether, as a result, 

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Brown's statements, the handgun and the pocket knife were 

excludable, Hood determined that the issues were not preserved by 

motion or objection at trial. Therefore, as Hood explained to 

Brown, they could not be raised for the first time on appeal absent 

the ability to meet the requirements of § 46-20-701, MCA, which 

could not be met in this case. Hood's interpretation of the law in 

this regard was correct. See State v. Weeks (1995), 270 Mont. 63, 

86, 891 P.2d 477, 491 (citation omitted). We have indicated 

repeatedly that, where counsel properly interprets the law, 

counsel's performance is not deficient as a matter of law. _, See 

e.q., Baker, 901 P.2d at 60-61; State v. Hildreth (1994), 267 Mont. 

423, 432, 884 P.2d 771, 777; State v. Brady (1991), 249 Mont. 290, 

297, 816 P.2d 413, 417. 

Hood also considered Brown's assertion that he had been denied 

effective assistance of counsel at trial with regard to the 

allegedly excludable matters, examined the trial record and 

informed herself about the current law on ineffective assistance of 

counsel. She concluded that Sheehy decided not to move to 

suppress, or object to admission of, the evidence in furtherance of 

his overall trial strategy and that such tactical decisions would 

not successfully support an ineffective assistance of counsel 

claim. Given our affirmance of the District Court's conclusion to 

that effect above, it is clear that Hood's analysis of this issue 

was correct. Therefore, Hood's performance in this regard was not 

deficient. See Baker -I 901 P.2d at 60-61; Hildreth, 884 P.2d at 

777; Brady, 816 P.2d at 417. 

14 
Finally, with regard to Brown's contention that Hood did not 

provide him with an opportunity for input into his appellate brief, 

Hood appended to her affidavit a letter she sent to Brown with a 

draft of the appellate brief. Hood advised Brown in the letter 

regarding when she intended to file the brief and she stated in her 

affidavit that he did not contact her about the brief. Brown's 

argument in this regard essentially requests this Court to reweigh 

the evidence, determine that he is more credible than Hood, and 

make findings different from those made by the District Court. 

However, in matters such as these where the District Court is 

acting as the trier of fact, it is that court's function to resolve 

conflicts in the evidence and we will not substitute our judgment 

for that of the District Court. See In re Marriage of Starks 

(19931, 259 Mont. 138, 143, 855 P.2d 527, 530 (citations omitted). 

We conclude that substantial evidence supports the District 

Court's finding that Hood's performance was not deficient. Because 

Brown did not establish the deficient performance prong of the 

Strickland test, we need not address the prejudice prong. We hold, 

therefore, that the District Court correctly concluded that Brown 

was not denied effective assistance of counsel on appeal. 

3. Did the District Court err in concluding that the claimed 

violations of Brown's privilege against self-incrimination and his 

right to be free from unreasonable searches were not properly 

before it? 

In addition to his claims of ineffective assistance of 

counsel, Brown's petition for postconviction relief asserted 

violations of his Fifth Amendment privilege against selfincrimination, which related to his non-Mirandized statements about 

15 
the location of the handgun and the handgun itself, and his Fourth 

Amendment right to be free from unreasonable searches, which 

related to the hanger and knife admitted into evidence as a result 

of Kathie's allegedly illegal searches. While these asserted 

constitutional violations were neither preserved at trial nor 

raised on direct appeal, Brown contended they should be determined 

substantively in his postconviction proceeding. The District Court 

concluded that, except insofar as these matters related to Brown's 

ineffective assistance of counsel claims, they were procedurally 

barred by § 46-21-105(2), MCA, and not properly before it. We will 

not overturn a district court's conclusion of law if the court's 

interpretation of the law is correct. Baker , 901 P.2d at 58 

(citation omitted). 

A petition for postconviction relief is a statutory proceeding 

in which certain alleged errors may be raised by a "person adjudged 

guilty of an offense in a court of record who has no adequate 

remedy of appeal. .'I Section 46-21-101(l), MCA. However, 

[wlhen a petitioner has been afforded a direct appeal of 

the petitioner's conviction, grounds for relief that 

could reasonably have been raised on direct appeal may 

not be raised in the original or amended petition. 

Section 46-21-105(2), MCA. In this case, Brown was afforded a 

direct appeal and, as discussed above, these alleged constitutional 

violations were not raised therein. 

While Brown concedes that the referenced issues were not 

raised in his direct appeal, he argues that the procedural bar 

should not apply because he attempted to raise them but his 

appellate counsel would not do so. As discussed above, Brown's 

16 
counsel on appeal properly analyzed whether to include the alleged 

Fifth and Fourth Amendment violations as issues on appeal and 

determined that, because they had not been preserved at trial, they 

could not be raised on appeal. Moreover, the District Court found, 

having weighed the conflicting evidence and determined the 

credibility of Brown and Hood, that Brown agreed with Hood 

regarding what issue should be raised on appeal. We will not 

substitute our judgment for that of the trier of fact on such 

matters. Marriaqe of Starks, 855 P.2d at 530. 

Brown also suggests that Sheehy's failure to preserve these 

issues for appeal via motion or objection should prevent 

application of the procedural bar to foreclose substantive review. 

We disagree. 

We recently clarified the applicability of the statutory 

procedural bar to issues not preserved for appeal at trial. In 

-I Baker the petitioner had appealed from his convictions and 

sentences for three offenses and this Court had affirmed. Baker, 

901 P.2d at 56. Thereafter, he filed a petition for postconviction 

relief alleging ineffective assistance of trial counsel and 

numerous other issues. We concluded that grounds for relief which, 

in the language of § 46-21-105(2), MCA, "could reasonably have been 

raised on direct appeal" included issues not properly preserved at 

the trial level for appeal. Baker , 901 P.2d at 58 (citing State v. 

Gorder (19901, 243 Mont. 333, 792 P.2d 370). On that basis, we 

determined that certain of the petitioner's issues could have been 

preserved at the trial level and, absent such preservation, the 

17 
sole means by which they could be raised in a postconviction 

proceeding was via a claim of ineffective assistance of trial 

counsel. Baker, 901 P.Zd at 58-59. 

Baker is squarely on point and dispositive here. Trial 

counsel having failed to preserve Fifth and Fourth Amendment 

issues, those issues are barred from substantive determination on 

a stand-alone basis in this postconviction proceeding. To the 

extent authorized by Baker, Brown raised those issues in this 

postconviction proceeding in the context of his ineffective 

assistance claim against Sheehy and it was not necessary for us to 

address them substantively in our resolution of that claim above. 

Nor is Brown's reliance on Fitzpatrick v. State (1983), 206 

Mont. 205, 671 P.Zd 1, and State v. Henricks (1983), 206 Mont. 469, 

672 P.2d 20, for the proposition that he is entitled to a 

substantive determination of the Fifth and Fourth Amendment issues 

well placed. In Henricks, we relied on Fitzpatrick in determining 

that we could consider issues in a postconviction proceeding which 

could have been raised on direct appeal. Henricks, 672 P.2d at 23 

(citing Fitzpatrick, 671 P.2d 1). We subsequently observed that 

the Fitzpatrick postconviction relief proceeding was instituted 

before the effective date of the procedural bar contained in § 46- 

21-105(2), MCA, and, therefore, that Fitzpatrick was improperly 

used as authority for our conclusion in Henricks. Kills on TOP, 

901 P.2d at 1386. As a result, we overruled Henricks. Kills On 

Iz.522, 901 P.2d at 1387. 

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We hold that the District Court did not err in concluding that 

Brown's claimed violations of his privilege against selfincrimination and his right to be free from unreasonable searches 

were not properly before it. 

Affirmed. 

We concur: 

Justices 

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