NO. 95-160 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1996

WARRENDEANBROWN,

Petitioner andAppellant,

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis &Clark, TheHonorable Jeffrey Sherlock, Judge presiding.

COUNSELOFRECORD:

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 onBriefs: March 7, 1996 Decided: July 26, 1996Justice Karla M.Gray delivered the Opinion of the Court.

Warren DeanBrown (Brown) appeals from the order andjudgment entered by the First Judicial District Court, Lewis and Clark County, denying his petition for postconviction relief. Weaffirm. Weaddress 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 onappeal? 3. Did the District Court err in concluding that the claimed violations of Brown's privilege against self-incrimination andhis 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 bypurposely 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 andhis wife Kathie, whohadbeen separated for approximately one month at the time. According to Kathie's testimony, sheandBrown got into anargument andBrown slapped her in the face andhit 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 awire coat hanger, wrapped it around her wrist andled her around by it. Subsequently, Brown removed a .22 caliber pistol from acardboard file in the bedroom, loaded it andpointed it at her; thereafter, he struck her several times with the gun, at least once on the

2forehead andthen onthe top of her head. Kathie escaped with one

of the couple's children andBrown took the other child back into his apartment. Officers arrested Brown in his bedroom somehours later and, when asked where the gun was, hedirected them to the .22 pistol located in the file cabinet. Brown also testified at trial. Heacknowledged having an argument with Kathie, but denied slapping her, putting aknife to her throat, leading her around the apartment with acoat hanger and pistol-whipping her. Headmitted that shegot abloody nose, but offered amuchmore innocent explanation than Kathie's about howit 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 wasconvicted andsentenced toten years in prison, with five years suspended, for the felony assault andanother ten years in prison, with five years suspended, for use of aweapon in the assault. Weaffirmed the conviction on appeal, concluding that substantial evidence established the essential elements of felony assault. See State v. Brown (1989), 239Mont. 453, 457, 781 P.2d 281, 284. Brown petitioned the District Court for postconviction relief in 1993. Among,other things, hecontended 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

3was denied effective assistance of counsel both at trial and on

appeal. TheDistrict Court denied the petition andBrown 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. TheDistrict Court held ahearing onBrown's petition. Brown testified but d~idnot call Sheehy asawitness in order to examine him regarding his affidavit. The court subsequently determined that Sheehy's performance was not deficient and concluded that Brown wasnot denied effective assistance of counsel at trial. We review adistrict court's denial of apetition 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), 272Mont. 273, 280, 901P.2d 54, 58 (citing Walker v. State (1993), 261Mont. 1, 6, 862P.Zd 1, 4). Apetitioner seeking to reverse adistrict court's denial of

a petition for postconviction relief based on a claim of ineffective assistance of counsel bears aheavy burden. Baker, 901 P.2d at 59. Weapply the two-part test originally set forth in Strickland v. Washington (1984), 466U.S. 668, 104S.Ct. 2052, 80 L.Ed.2d 674, in evaluating apetitioner's claim of ineffective assistance of counsel. Baker 901P.Zd at 59; Walker, 862P.2d at -I 44. 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 andcounsel's performance is strongly presumed to fall within the wide range of reasonable professional assistance. Kills OnTop v. State (1995), 273 Mont. 32, 49, 901 P.2d 1368, 1379 (citing Strickland, 466U.S. at 688-89). To satisfy the second Strickland prong, the petitioner must establish that the deficient performance prejudiced him and deprived him of afair trial. -, Baker 901P.2d at 59. Prejudice is evaluated bywhether areasonable probability exists that, but for counsel's deficient performance, the outcome of the trial would have been different. Baker -I 901 P.2d at 59. Apetitioner must establish both deficient performance andprejudice to prevail ona postconviction claim of ineffective assistance ofcounsel, andthis Court will not second-guess trial tactics andstrategy. Baker, 901 P.2d at 59. Brown argues that Sheehy's representation ofhimwasdeficient 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 andthe handgun itself, anddid not object to the late endorsement of the State's expert witnesses

5from 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, acoat hanger andpocket 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. Weaddress Brown's contentions in turn.

a. The statements, handgun and expert testimony It is undisputed that, at the time of Brown's arrest, hewas questioned regarding the whereabouts of the handgun prior to being informed of his rights under Miranda v. Arizona (1966), 384U.S. 436, 86s.ct. 1602, 16L.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 bySheehy. The State submitted the handgun to the Crime Lab for examination byafirearms expert, William Newhouse (Newhouse), and

a serologist, Julie Long (Long) The State moved for the endorsement ofNewhouse andLong aswitnesses onJuly 7, 1988, four days before trial, noting Sheehy's lack of objection in its motion. Thehandgun wasmanufactured in the late 1800s andwasmissing its trigger. Kathie andBrown hadfound it in pieces in the trash 6and Brown had been refurbishing it. Kathie testified that Brown

andafriend hadfired the handgun oncewhile "playing around" with it andthat, in addition tohitting her with it, healso threatened to shoot her if she did not doas she was told by Brown. Brown testified that hehad never fired the handgun, that it would be very dangerous to fire it andthat hehadnot gonenear the handgun

on the evening in question. Healso 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 atrigger andacocking mechanism. Hefurther testified that hehadfired the handgun two times.Long testified that the handgun hadasmall amount ofblood on it and that the blood washuman in origin. Shefurther testified that there wasnot enough blood onthe handgun for her todetermine 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 andthe expert testimony were used effectively by the prosecution in convicting him. On that basis, he argues that Sheehy's failure to file motions ormakeobjections to exclude themwasunwise, did not gain him any advantage and constitutes ineffective assistance of counsel.TheDistrict 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

somelength. His overall strategy involved attempting to discredit Kathie's testimony concerning the events in question by arguing that, had Brown actually hit Kathie onthe head with the handgun and pointed it at her, asKathie described, hewould have hid it rather than placing it in the file cabinet andwould 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 onthe headwith the handgun asshedescribed, there would have been muchmore blood onthe handgun than the small amount that was not even identifiable asKathie's. In short, Sheehy attempted to affirmatively usethe handgun, andBrown's cooperation in directing the officers to it, to buttress Brown's position that the assault

never occurred andtoundermine Kathie's version of the events. In this regard, Brown testified at the hearing onhis petition that he understood that the trial would turn, in large part, onKathie'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 aresult, Sheehy felt it needed to be test-fired. Furthermore, it was Sheehy'sopinion that the spot onthe handgun should betested to determine

whether it was merely rust, rather than blood, in hopes ofnegating Kathie's version of the events altogether. As it turned out, the spot wasblood, but not identifiable asKathie'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 toboth the late endorsement of Newhouse andLong aswitnesses andtheir testimony at trial waspart of his

OVerall strategy of attempting to discredit Kathie and her testimony. Wedo not second-guess trial tactics and strategy. Baker, 901P.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 noauthority 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 wasdeficient, andweare aware of none. Weconclude 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 andpocket knife At trial, the State introduced the coat hanger Kathie alleged Brown hadwrapped around her wrist andused to lead her around the apartment, aswell asthe pocket knife Brown allegedly hadheld to

9her throat, during the assault. Kathie hadprovided these items to

the State. Kathie andBrown were separated whenthe assault occurred and shedid not have akey toBrown's apartment. Kathie testified that sheentered Brown's apartment twice after his arrest. Sheentered through awindow onthe first occasion and recovered Brown's keys to the apartment and the hanger. She testified that, at the request of the Helena Police Department, sheentered the apartment again to retrieve Brown's knife. Sheehy did not moveto suppress,

or otherwise object to the admission of, these items. Brown contends it wasundisputed attrial that Kathie obtained both the hanger andthe knife byentering Brown's apartment without Brown's permission andthat 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 toSheehy, hepersonally investigated Kathie's claim that she had conducted the search for the knife at the request of the Helena Police Department andconcluded that nosuch request had been made. Hadheconcluded otherwise, hewould have considered a

motion to suppress the knife. Heintended 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 awitness. Indeed, Sheehy's strategy wasto use Kathie's testimony in this regard to

10argue that all of her testimony should berejected dueto her lack

of truthfulness onthis material matter. Onceagain, Brown asks us to second-guess Sheehy's trial strategy. Werefuse to doso. See Baker, 901 P.2d at 59. Weconclude that substantial evidence supports the District Court's finding that Sheehy's decisions regarding the hanger and the knife were based onhis trial strategy and, therefore, donot constitute deficient performance.

c. Lack of communication andconsultation Brown also alleges onappeal that Sheehy did not consult or communicate with himregarding the tactical andstrategic 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. Weobserve 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

11address them in denying the petition andthe State does not address

them onappeal. Section 46-21-105(l), MCA, provides that all grounds for relief under §46-21-101, MCA,must beraised in the petitioner's original or amended petition andthat grounds for relief not raised generally are waived. Brown did not raise these specific allegations of deficient performance bySheehy in his original or amended petition and, asaresult, they are waived andprocedurally barred. Section 46-21-105, MCA; see Baker, 901 P.2d at 58. In addition, because this is adirect appeal from the District Court's denial ofBrown's petition for postconviction relief, wedecline to address these allegations of ineffective assistance of counsel not first properly raised in the trial court. , Baker 901P.2d at 58. Because Brown did not establish the deficient performance prong of the Strickland test, weneed not address the prejudice prong. Wehold, therefore, that the District Court correctly concluded that Brown wasnot denied effective assistance of counsel at trial. 2. Did the District Court err in concluding that Brown was not denied effective assistance of counsel onappeal? Randi M. Hood (Hood), chief public defender for Lewis and Clark County, represented Brown onappeal. Sheraised the issue of whether there was sufficient evidence to support Brown's felony assault conviction. Brown 781 P.2d at 282. -I Brown's petition for postconviction relief alleged denial of effective assistance of counsel on appeal. Specifically, he alleged that Hood's performance wasdeficient in that shefailed to 12raise issues that herequested, including the substantive issues of

Fifth andFourth 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 anopportunity 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 onappeal. Brown did not call Hood asawitness at the hearing onhis 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 bepursued. Finally, the court found that Hoodmailed Brown

acopy of the appellate brief, together with anexplanatory letter, before she filed the brief. Based onthese findings, the District Court found that Hood's performance was not deficient and that Brown wasnot denied effective assistance of counsel onappeal. As discussed above, we review the court's findings to determine whether they are supported bysubstantial evidence; wereview the court's conclusions to determine whether its interpretation of the law is correct. Baker -I 901P.2d at 58. With regard to the substantive issues ofwhether Brown's Fifth andFourth Amendment rights wereviolated andwhether, asaresult,

13Brown'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 beraised for the first time onappeal absent the ability to meet the requirements of §46-20-701, MCA, which could not bemet in this case. Hood's interpretation of the law in this regard wascorrect. SeeState v. Weeks (1995), 270Mont. 63, 86, 891 P.2d 477, 491 (citation omitted). Wehave indicated repeatedly that, where counsel properly interprets the law, counsel's performance is not deficient asamatter of law. _, See e.q., Baker, 901P.2d at 60-61; State v. Hildreth (1994), 267Mont. 423, 432, 884P.2d 771, 777; State v. Brady (1991), 249Mont. 290, 297, 816 P.2d 413, 417. Hoodalso considered Brown's assertion that hehadbeendenied effective assistance of counsel at trial with regard to the allegedly excludable matters, examined the trial record and informed herself about the current lawonineffective assistance of counsel. She concluded that Sheehy decided not to move to suppress, orobject toadmission of, the evidence in furtherance of his overall trial strategy andthat 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

wascorrect. Therefore, Hood's performance in this regard wasnot deficient. See Baker

-I 901 P.2d at 60-61; Hildreth, 884 P.2d at 777; Brady, 816P.2d at 417.

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

provide him with anopportunity for input into his appellate brief, Hood appended to her affidavit aletter she sent to Brown with a draft of the appellate brief. Hood advised Brown in the letter regarding whensheintended to file the brief andshestated in her affidavit that hedid 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 asthe trier of fact, it is that court's function to resolve conflicts in the evidence andwewill not substitute our judgment for that of the District Court. See In re Marriage of Starks (19931, 259Mont. 138, 143, 855P.2d 527, 530 (citations omitted). Weconclude that substantial evidence supports the District Court's finding that Hood's performance wasnot deficient. Because Brown did not establish the deficient performance prong of the Strickland test, weneednot address the prejudice prong. Wehold, therefore, that the District Court correctly concluded that Brown

wasnot denied effective assistance of counsel onappeal. 3. Did the District Court err in concluding that the claimed violations of Brown's privilege against self-incrimination andhis 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 tohis non-Mirandized statements about 15the location of the handgun andthe handgun itself, andhis Fourth

Amendment right to be free from unreasonable searches, which related to the hanger andknife admitted into evidence asaresult of Kathie's allegedly illegal searches. While these asserted constitutional violations were neither preserved at trial nor raised ondirect appeal, Brown contended they should bedetermined substantively in his postconviction proceeding. TheDistrict Court concluded that, except insofar asthese matters related to Brown's ineffective assistance of counsel claims, they were procedurally barred by§46-21-105(2), MCA,andnot properly before it. Wewill not overturn adistrict court's conclusion of law if the court's interpretation of the law is correct. , Baker 901 P.2d at 58 (citation omitted). Apetition for postconviction relief is astatutory proceeding in which certain alleged errors mayberaised bya"person adjudged guilty of an offense in acourt of record who has no adequate remedy of appeal. .'I Section 46-21-101(l), MCA. However, [wlhen apetitioner hasbeen afforded adirect appeal of the petitioner's conviction, grounds for relief that could reasonably have been raised ondirect appeal may not beraised in the original or amended petition. Section 46-21-105(2), MCA. In this case, Brown was afforded a direct appeal and, asdiscussed 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 16counsel onappeal properly analyzed whether to include the alleged

Fifth and Fourth Amendment violations as issues on appeal and determined that, because they hadnot beenpreserved at trial, they could not beraised onappeal. 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. Wewill not substitute our judgment for that of the trier of fact on such matters. Marriaqe of Starks, 855P.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. Wedisagree. Werecently clarified the applicability of the statutory procedural bar to issues not preserved for appeal at trial. In Baker -I the petitioner had appealed from his convictions and sentences for three offenses and this Court hadaffirmed. Baker, 901P.2d at 56. Thereafter, hefiled apetition for postconviction relief alleging ineffective assistance of trial counsel and

numerous other issues. Weconcluded that grounds for relief which, in the language of §46-21-105(2), MCA, "could reasonably have been raised ondirect appeal" included issues not properly preserved at the trial level for appeal. Baker,901P.2d at 58 (citing State v. Gorder (19901, 243 Mont. 333, 792 P.2d 370). Onthat basis, we determined that certain of the petitioner's issues could have been preserved at the trial level and, absent such preservation, the

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

proceeding was via a claim of ineffective assistance of trial counsel. Baker, 901P.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 andit wasnot necessary for usto address them substantively in our resolution of that claim above. Nor is Brown's reliance onFitzpatrick v. State (1983), 206 Mont. 205, 671P.Zd 1,andState v. Henricks (1983), 206Mont. 469, 672 P.2d 20, for the proposition that he is entitled to a substantive determination of the Fifth andFourth Amendment issues well placed. In Henricks, werelied onFitzpatrick in determining that wecould consider issues in apostconviction proceeding which could have been raised ondirect appeal. Henricks, 672 P.2d at 23 (citing Fitzpatrick, 671 P.2d 1). Wesubsequently 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 onTOP, 901 P.2d at 1386. As aresult, weoverruled Henricks. Kills On Iz.522,901 P.2d at 1387.

18Wehold that the District Court did not err in concluding that

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

were not properly before it. Affirmed.

Weconcur:

Justices

19