DA 09-0603

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 212

STATE OF MONTANA,

Plaintiff and Appellee,

v.

WILLIAM A. PARRISH,

Defendant and Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District,

In and For the County of Rosebud, Cause No. DC 08-27

Honorable Joe L. Hegel, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Elizabeth Thomas, Attorney at Law, Missoula, Montana

For Appellee:

Steve Bullock, Montana Attorney General; John Paulson, Assistant

Attorney General; Helena, Montana

Michael B. Hayworth, Rosebud County Attorney, Forsyth, Montana

Submitted on Briefs: August 4, 2010

Decided: October 5, 2010

Filed:

__________________________________________

Clerk

October 5 2010
2

W. William Leaphart delivered the Opinion of the Court.

¶1 After six hours of deliberations, a Rosebud County jury convicted William Parrish

(Parrish) of criminal endangerment. Parrish appeals the conviction, raising the following

issues:

¶2 1. Did the District Court abuse its discretion in denying Parrish’s motion for

a new trial based on an alleged Brady violation?

¶3 2. Did the District Court abuse its discretion in denying Parrish’s motion for 

a new trial based on the discovery of new evidence?

¶4 3. Did the District Court commit plain error by failing to give a lesser

included offense instruction to the jury?

¶5 4. Was Defense Counsel ineffective in choosing not to propose a lesser

included offense instruction?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 In 2008, Parrish lived in Forsyth, Montana, with his girlfriend (B.H.) and her two

children (M.G. and his sister). On June 16, 2008, Parrish was watching the two children

when M.G.’s arm was injured. Parrish promptly obtained medical treatment for M.G..

While at the facility, Child and Family Services (CFS) Regional Supervisor Grant Larson

(Larson) and a deputy sheriff spoke with Parrish, but no charges were filed. 

¶7 On August 5, 2008, Parrish again watched the children. After returning home,

B.H. observed that M.G. was behaving abnormally and she took him to the medical clinic

in Forsyth that same day. At the clinic, B.H. learned that M.G. had sustained a skull

fracture, internal bruising, and broken ribs. M.G. was transported by ambulance to the

Billings Clinic and eventually to Children’s Hospital in Aurora, Colorado. Parrish told
3

B.H., Larson, and the deputy sheriff that he was unaware of any cause for M.G.’s 

injuries. 

¶8 Due to Parrish’s failure to seek treatment for M.G. on August 5, 2008, he was

charged with criminal endangerment. After the charges were filed, Parrish developed a

different story, this time explaining M.G.’s injuries. Parrish alleges that he did not report

the injuries immediately because he feared the State would take the kids away, given the

investigation concerning the events of June 16, 2008. 

¶9 Parrish’s counsel filed a discovery request for “[a]ll medical reports of any nature 

prepared in reference to M.G.,” “[a]ll [Department of Health and Human Services

(DPHHS)] reports relating to M.G.,” and “[a]ll legal pleadings or reports in any pending

[dependant and neglect] action concerning M.G. pertinent to M.G.’s physical or mental 

condition.” The State responded and agreed to proffer all documents not precluded by

§ 41-3-205, MCA. Regarding the discovery request for DPHHS reports that may be

precluded by statute, the State offered to provide the entire investigative file subject to in

camera screening. 

¶10 The District Court held an in camera proceeding and issued an order prior to trial.

Attached to the order were copies of DPHHS documents for Defense Counsel’s use in

preparation for trial. An Investigative Safety Assessment (assessment) accompanied the

court’s order and provided a description of a meeting on June 17, 2008, wherein DPHHS
4

Child Protection Specialist Lisa Reiger (Reiger) met with B.H. at her home. At this 

meeting Reiger had B.H. sign information release forms (releases).

1

¶11 At trial, Larson testified that he called B.H. at home on June 17, 2008, and

informed her that the investigation regarding M.G.’s broken arm was closed and that a

social worker would stop by the house. On redirect-examination of Larson, the State

attempted to admit the assessment into evidence. Defense Counsel objected. On

recross-examination of Larson, Defense Counsel moved to admit the first two pages of

the seven page assessment into evidence for the purpose of impeaching Larson’s

testimony that the broken arm investigation concluded on June 16, 2008. The District

Court admitted the first two pages into evidence as Defense Exhibit B on the condition

that the remaining five pages were also admitted.

¶12 Parrish and B.H. both testified that CFS did not contact the couple to inform them

that the investigation regarding the broken arm incident had concluded. They both

testified that they had lived in fear of having their children taken away subsequent the

June 16, 2008, incident. On day four of trial, the State introduced the signed releases to 

impeach B.H.’s testimony that she was not contacted by CFS.

¶13 Defense Counsel did not offer an instruction on negligent endangerment or any

lesser included offense. The jury found Parrish guilty of criminal endangerment.

Thereafter, Parrish filed a motion for a new trial, which the District Court denied. Parrish

now appeals his conviction and denial of his motion for a new trial.

1

The assessment is actually dated June 16, 2008, despite its inclusion of the June 17,

2008, visit summary. Neither party raises this issue, therefore the Court notes this

discrepancy, but finds the file error inconsequential.
5

STANDARD OF REVIEW

¶14 We review a district court’s denial of a motion for a new trial under the abuse of

discretion standard. State v. Clark, 2008 MT 391, ¶ 20, 347 Mont. 113, 197 P.3d 977.

¶15 We may also apply the common law plain error doctrine to review claimed errors 

that implicate a criminal defendant’s fundamental constitutional rights, even if no

objection is made, where failing to review the claimed error at issue may result in a

manifest miscarriage of justice. State v. Jackson, 2009 MT 427, ¶ 42, 354 Mont. 63, 221

P.3d 1213.

DISCUSSION

¶16 1. Did the District Court abuse its discretion in denying Parrish’s motion for

a new trial based on an alleged Brady violation?

¶17 In order to establish a Brady violation, defendant must show (1) the State

possessed evidence favorable to the defense; (2) the defendant did not possess the

evidence nor could he have obtained it with reasonable diligence; (3) the State suppressed

the favorable evidence; and (4) had the evidence been disclosed, a reasonable probability

exists that the outcome of the proceedings would have been different. Id. at ¶ 53.

¶18 We recently observed in State v. James, 2010 MT 175, ¶ 36, 357 Mont. 193, 237

P.3d 672, that no Brady violation exists where both parties are aware of the existence of

specific evidence and defense counsel could uncover the evidence with reasonable

diligence. In James, defense counsel requested that the State provide “evidence that 

would mitigate or negate guilt.” Id. at ¶ 30. Defense counsel then motioned for a new

trial alleging a Brady violation for the State’s failure to provide the victim’s booking
6

photo. Id. at ¶ 32. The district court found that both parties knew prior to trial that the

assault victim had been arrested the night of the incident and it was common knowledge

that booking photos are taken of persons who are arrested. Id. at ¶ 33. In James, we

concluded that since counsel for the defendant was generally familiar with booking

procedures, counsel was constructively aware that a booking photo was probably in

existence. Id. at ¶¶ 33-36.

¶19 Here, where the assessment document put Parrish on actual notice of the existence

and substance of the releases, the James rationale is even more compelling. Parrish was

aware of the releases and clearly in a position to specifically request production of the

releases themselves. This argument is belied by the fact that Parrish’s counsel

successfully moved to introduce the first two pages of the assessment and then objected

when the State sought to introduce page seven, the page containing the summary of the

releases. Since Parrish has failed to show that he could not have obtained the releases

with reasonable diligence, he has not satisfied the second prong of the Brady test and we 

need not discuss the other three prongs.

¶20 2. Did the District Court abuse its discretion in denying Parrish’s motion for

a new trial based on the discovery of new evidence?

¶21 Parrish contends that the District Court abused its discretion in denying his motion

for a new trial due to newly discovered evidence, i.e. the releases. In order to prevail on a

motion for a new trial grounded on newly discovered evidence, a defendant must meet

the five part Berry test that we restated in State v. Clark, 2005 MT 330, ¶ 34, 330 Mont.

8, 125 P.3d 1099. Inter alia, a defendant must establish that the failure to discover the
7

evidence sooner was not the result of the defendant’s lack of diligence. Id. As discussed

above, Defense Counsel was aware of the releases before trial and Parrish could have

obtained the releases themselves with reasonable diligence. Since Parrish failed to satisfy

the diligence requirement, the District Court did not abuse its discretion in denying his

motion for a new trial.

¶22 3. Did the District Court commit plain error by failing to give a lesser

included offense instruction to the jury?

¶23 Parrish requests that we review the District Court’s jury instructions for plain

error. Specifically, Parrish contends that the District Court should have sua sponte

instructed the jury as to the lesser included offense of § 45-5-208, MCA, Negligent

endangerment.

¶24 Although we have exercised discretionary authority to review claimed errors that 

affect a defendant’s fundamental rights under the common law plain error doctrine where

no objections are made at trial, State v. Finley, 276 Mont. 126, 137, 915 P.2d 208, 215

(1996), the plain error doctrine is “to be employed sparingly” and “pursuant to narrow 

circumstances.” State v. Lindberg, 2008 MT 389, ¶ 34, 347 Mont. 76, 196 P.3d 1252. 

According to § 46-16-410 (3), MCA:

A party may not assign as error any portion of the instructions or omission

from the instructions unless an objection was made specifically stating the

matter objected to, and the grounds for the objection, at the settlement of

instructions.

Absent request by the parties, the trial court has no duty to instruct the jury on a lesser

included offense. State v. Sheppard, 253 Mont. 118, 124, 832 P.2d 370, 373 (1992). As

we explained in Sheppard, “defense counsel may want to omit such an instruction as a
8

matter of strategy.” Id. Therefore, the District Court’s discretion not to instruct the jury

on a lesser included offense of negligent endangerment sua sponte does not warrant plain 

error review.

¶25 4. Was Defense Counsel ineffective in choosing not to propose a lesser

included offense instruction?

¶26 When a convicted defendant complains of the ineffectiveness of counsel’s 

assistance, the defendant must show that counsel’s representation fell below an objective

standard of reasonableness. State v. Gunderson, 2010 MT 166, ¶ 67, 357 Mont. 142, 237

P.3d 74. Additionally, there is a strong presumption that counsel’s conduct fell within

the wide range of reasonable professional assistance and was based on sound trial

strategy. State v. Whitlow, 2008 MT 140, ¶ 33, 343 Mont. 90, 183 P.3d 861. Parrish

asserts that Defense Counsel had no plausible justification for not submitting a lesser

included offense instruction on negligent endangerment. Given that we have recognized

that counsel can, for strategic reasons, choose not to offer a lesser included offense

instruction, Sheppard, 253 Mont. at 124, 832 P.2d at 373, we cannot conclude that 

counsel’s representation fell below an objective standard of reasonableness. 

¶27 We affirm.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ MIKE McGRATH

/S/ MICHAEL E WHEAT

/S/ JAMES C. NELSON

/S/ JIM RICE