NO. 89-314 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

STATE OF MONTANA, Plaintiff and Respondent,-vsJAMES D. COATES, Defendant and Appellant.

APPEAL FROM: ~istrict Court of the Fourth ~udicial ~istrict, In and for the County of Missoula, The Honorable Douglas

### arki in, Judge presiding. COUNSEL OF RECORD: For Appellant: 

### art in John Elison, ~ardin, Montana For Respondent: Hon. Marc Racicot, Attorney General, Helena,Montana Jennifer Anders, Asst. Atty. General, Helena Robert L. Deschamps, 111; Betty wing, Deputy,

### iss sou la, Montana

-- --- Submitted on ~riefs: Dec. 14, 1989 Decided: February 14, 1990Justice John Conway Harrison delivered the Opinion of the Court.

JamesCoates appealsan order of theFourthJudicialDistrict, Missoula County, Montana, denying Mr. Coateslpetition for postconviction relief. We affirm. Appellant raises three issues for review: 1. Was appellant denied an evidentiary hearing on his petition for post-conviction relief? 2. Was the hearing the appellant received a full and fair hearing? 3. 

### id the ~istrict Court err in finding that appellant had not been denied effective assistance of counsel and thus err in denying the petition for post-conviction relief? Followinga jurytrial,appellantwas convicted of fourcounts of felony theft on May 1, 1987. At trial, Bernard J. Goldman representedappellant. Mr. Goldmanalso handledMr. Coateslappeal to this Court. On September 2, 1988, pursuant to 5 46-21-201, MCA, appellantls new counsel filedapetition for post-conviction relief that alleged appellant was denied effective assistance of counsel at trial. Specifically, appellant cited eight alleged errors committed by Mr. Goldman. The parties filed briefs and the District Court held a hearing on December 12, 1988. During the hearing, appellantpresented awitness onhis behalf and testified 2himself. The State called as awitness the deputy county attorney who prosecuted appellant. At the end of the hearing, the District Judge added to the record his observations regarding Mr. Goldman's conduct during appellant's trial. Neither the appellant nor the State objected to theJudge's commentsandboth counsel asked theJudgequestions. On January 13,1989,theDistrict Court issued findings of factand conclusions of lawdenying appellant's request for post-conviction relief. TheDistrictCourt found thatMr. Goldman's alleged errors

were in themain tactical decisions, that another lawyer could not have obtained a better result, and that Mr. Goldman had not ineffectively represented appellant.

Appellant contends that the District Court erred in not grantingappellant anevidentiary hearing inwhich topresentproof regarding his allegations of ineffective assistance of counsel. Appellant's argument belies the record. Section 46-21-201, MCA, details the procedure relating to a petition for post-conviction relief and provides in part as follows: 46-21-201. Proceedings on the petition. (1) Unless the petition and the files and records of the case conclusively show that the petitioner is entitled tono relief, the court shall cause notice thereof to be served upon the county attorney in the county inwhich the conviction tookplace and the attorney general and order them to file a responsive pleadingto the petition. Following its review of the responsive pleading, the courtmay dismiss the petition as a matter of law for failure to state a claim for relief or it may grant a prompt hearing thereon, determine the issue, and make findings of fact and conclusions with respect thereto.

(2)The courtmay receiveproof by affidavits, depositions, oral testimony, or other evidence. In its discretion the court may order the petitioner brought before the court for the hearing. The District Court granted appellant a hearing as outlined in 

### 5 46-21-201(1), MCA, and received evidence in the form of oral testimony and exhibits. The statuteplainly contemplates that the hearing on a post-conviction petition will be to determine the issues raised in the petition. Nothing in the record supports appellant's argument that the hearing held was not such an evidentiary hearing. We reject appellant's argument.

Appellant alleges that the District Court failed to give him

a proper hearing because it ignored the rules of civil procedure and it made improper comments during the hearing. We disagree. 

### A petition for post-conviction relief is civil in nature rather than criminal. Colemanv. State (Mont. 1981)

## , 633 P. 2d 624, 627, 38 St.Rep. 1352, 1354. However, "district courts are not strictly bound by all the rules of civil procedureggin postconviction reliefhearings. Statev. Perry (Mont. 1988), 758 P.2d 268, 276, 45 St. Rep. 1192, 1201. As appellant neither cites anyspecific rules that the District Court violated nor cites any authority in support of his argument, we reject his contention. Wehold that theDistrict Court followedtheprocedures established by 

### 5 46-21-201,MCA. Additionally, appellant argues thathe did not receive a fair hearing because the District Judgemade prejudicial remarks at the end of the hearing that indicated bias on the part of the Judge. The Judge's comments related to his observations of Mr. Goldman's conduct of appellant's trial. The critical inquiry iswhether the Judge's remarks deprived appellant of a full and fair hearing. Perry, 758 P.2d at 275. We do not find that his remarks reflect bias and prevented appellant from receiving a full and fair hearing. Appellant frames his bias argument in generalizations. His argument appears to be that because the Judge articulated his observations regarding Mr. Goldman's trial conduct that the Judge

was biased. In other words that the Judge's remarks indicate his unwillingness or inability to impartially consider appellant's evidence thatMr. Goldman ineffectively representedhim. However, themere factthat theJudgearticulatedhis observationsdoesnot, without more, constitute bias and appellanthas not buttressed his argument with anything specific. Petitions for post-conviction relief are directed to either this Court or to the presiding district court judge. The statute 5specifiesthepresiding district judgepreciselybecause that judge is familiar with the underlying criminal case. By directing the post-conviction relief petition to the presiding district judge, the judge who is most familiar with the conduct of the trial has the opportunity to correct any errors that occurred during the trial. See Coleman, 633 P.2d at 626-628. The fact that a judge is familiarwith how counsel conducted a trial does not equalbias and in post-conviction relief hearings familiarity is considered

a benefit. Inparticular, the presiding judgewill have observed

an attorney's handling of a trial in regard to general behavior, thoroughness of preparation, and effectiveness of case presentation. In the instant case, the Judge's remarks did not reflect any unwillingness to consider appellant's evidence regarding ineffective assistance of counsel. These remarks came at the end of the hearing after all evidence had been presented. The appellantdoesnot allege that the Judgemade any improper remarks

as theparties presented their case nor does appellant allege that the Judge improperly excluded any evidence appellant offered. As well, appellantdoes not argue that the remarks indicated personal bias toward either Mr. Goldman or appellant. Additionally, the Judge's observations mirrored the testimony of the prosecuting attorney at appellant's trial. In contrast to the case at bar stands State v. Musgrove 6(1980), 187 Mont. 549, 610P.2d 710,where we found that the trial judge's comments indicated bias, or an unwillingness to consider evidence. InMusqrove,thedefendanthad failed to appear at trial

on the day of closing arguments. The trial court ordered the insurancecompany's $50,000bond forfeited. Shortlythereafter the defendant returned voluntarily and was convicted and sentenced. The insurance company moved the trial court for an order discharging thebond forfeitureon thegrounds that thedefendant's mental condition excused his failureto appear at trial. Although the trial court, afterahearing,did discharge $25,000 of thebond forfeiture, the insurance company appealed alleging in part that thetrial judgehad improperly excluded evidence of thedefendant's mental condition. We found that the trial judge had improperly excluded evidence of the defendant's mental condition as well as improperly commented on the defendant's state of mind with the following remarks: THE COURT: Well, Mr. Delaney, there isn'tany doubt in my mind as the judge who presided on the trial that at that particular time Mr. Musgrove knew the jury was going to find him guilty because the testimonywas so obvious in thatdirection and the Instructions settledby the Court was [sic] so obvious in that direction. Iknow thathe knew this was going to happen and 

### I know that because of that he failed to show up the next day. There is no doubt in my mind that he was upset. I think I would have been. Musqrove, 610 P.2d at 712. We found that those statementsindicated "bias which resulted in effectively denying the insurance company an opportunity to establish its case of excuse in order to exonerate the bond forfeiture." Musqrove, 610 P.2d at 712. We also noted that the trial judge's findings did not address the insurance company's contentions and evidence regarding excuse. Musqrove, 610 P.2d at 713. As mentioned above, we do not discern a similar bias or unwillingness to considerappellant's evidence inthe instantcase. The District Judge scheduled a hearing which he is not required to do if he finds thepetitionmeritless. Section 46-21-201(1), MCA. Each party thoroughlybriefed the issues, and eachparty presented evidence at the hearing. The Judge stated that he had considered all the testimony, evidence and briefs inmaking his decision and he wrote detailed findings of fact and conclusions of law that directly dealt with appellant's contentions. Moreover, we cannot say that the Judge's decision is not supported by substantial evidence. We hold that the Judge's remarks did not reflect bias and did not deprive appellant of a full and fair hearing.

The standard of review for denial of post-conviction relief is whether substantial evidence supports the findings and conclusions of the district court. Yother v. State (1979), 182Mont. 351, 355, 597 P.2d 79, 82. Appellant argues that the District Court erred in failing to find that Mr. Goldman was an ineffective counsel. We disagree. In evaluating ineffective assistance of counsel claims, this Court utilizes a two-part test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. First, counsel's performance must be deficient. To assess deficient performance, this Court employs the lg'reasonably affective assistance' test of whether a defendant's counsel acted within the range of competence demanded of attorneys in criminal

cases. (Citationomitted.) 'I State v. Elliott (1986)

## , 221 Mont. 174, 178, 717 P.2d 572, 575. Second, counsel's deficient performancemust have soprejudiced thedefendant as todeprive the defendant of a fair trial. Statev. Leavens (1986)

### , 222Mont. 473, 475, 723 P.2d 236, 237. The standard for evaluating prejudice is whether a reasonable probability exists that but for counsel's deficient performance, the trial's outcome would have been different. Leavens, 723 P.2d at 237. However, in evaluating a defense counsel's performance, this Court will not second guess trial tactics and strategy. State v. LaValley (1983), 203 Mont. 393, 397, 661 P.2d 869, 872. Inhis petition forpost-conviction relief,appellant alleged the following eight specific errors by Mr. Goldman: 1. Failure to object to the use of 9statementsmade by defendant prior to reading defendant his Miranda warnings. 2. Opening the door to testimony of a prior conviction. 3. Failure to suppress evidence seized from theback of defendant'svehicleby challenging probable cause of the searchwarrant. 4. Failure to obtainwitnessesnecessary for his defense. 5. Improper preparation for trial. 6. Failure to properly question witnesses. 7. Failure to appeal certain issues. 8. Mr. Goldman's drug abuse adversely affecting his ability to represent the defendant. As mentioned, all of these issueswere thoroughly briefed by both parties prior to the hearing. Regarding allegations 1, 2, 3, and 7, the District Court's findings indicate that it found Mr. Goldman's decisions on these issues to be tactical. The District Court found and upon review we concur, thatdefendant likely would nothaveprevailed in trying to exclude the defendant's statements or in suppressing the evidence seized, either at the pretrial proceeding or on appeal. TheDistrictCourt noted thatMr. Goldman'sprimary concern related to the identity of the informer and thathepressed that issue with vigor during pretrial proceedings and on appeal. As well, the District Court concluded that it was trialtactics that ledMr. Goldman to ask appellantondirect examination whether he had to have a background check to have a business license. On cross-examination, because thedefensehad "openedthe door," the prosecuting attorney was able to elicit from appellant the fact of his prior theft conviction. However, as the prosecuting attorney testified,had she not caught Mr. Goldman's brief reference to appellant's background and followed up, Mr. Goldman would have had an excellent foundation for a closing argument. The evidence supports the conclusion thatMr. Goldman's decisions on allegations 1, 2, 3, and 7 were trial tactics and we will not second guess trial tactics. As to allegation number 4, failure to obtain two necessary witnesses, appellant does not demonstrate exactly how the absence of these witnesses prejudiced him. The record discloses that the County subpoenaed the two witnesses to no avail. Mr. Goldman apparently knew that these witnesses could not be located so any attempt on his part to subpoena them would have been futile. Further, appellant's argument does not specify exactly what testimonythesewitnesseswould have given thatwould have assisted the defense. Without a showing of prejudice, appellant'sargument fails. State

### v. Henricks (1983), 206 Mont. 469, 475-476, 672 P.2d 20, 24. Regarding allegations 5and 6,therecord containssubstantial evidence that,on the whole,Mr. Goldmanwasprepared for trial and 11properly questionedwitnesses. Theprosecuting attorney testified thatMr. Goldman aggressively questionedwitnesses and effectively brought out the defects in the State's case. She testified that his questions reflected his familiaritywith the facts of the case and that his questioning elicited the information that he needed to establish the defense. Although appellant argues that Mr. Goldman shouldhave asked certain questions, appellant again fails to establish exactly how those questions would have materially assisted his defense. Finally,as to allegation 8,the record discloses no specific evidence thatMr. Goldman's cocaine abuse,which has become public knowledge, rendered his conduct of appellant's trial incompetent. Most of appellant's argument on this issue relates back to the alleged errors already discussed. If those allegations had been found to reflect ineffective assistance of counsel, then onemight infer that cocaine abuse may have been a contributing factor. However, absent any specific errors or conduct identified in the trial that affected the trial's outcome, Mr. Goldman's cocaine abuse is irrelevant to the issue of ineffective assistance of counsel. In summary, substantial evidence in the record supports the District Court's conclusion that another lawyer would not have obtained a more favorable result for appellant considering the amount of evidence the State presented against appellant.Appellant has failed to establish that Mr. Goldman's performance

was deficient or that any of his alleged errors prejudiced the outcome of the trial. Affirmed.

We concur:Justice John C. Sheehy, dissenting:

It is provided in Rule 605,Montana Rules of Evidence: The judgepresiding at the trialmay not testify in that trial as a witness. No obiection need be made in order to preserve the point. (Emphasisadded.)

The statementsmade by the district judge at the hearing for post conviction relief were statements of fact, although he

was an unswornwitness. Moreover, the district judge founded his findinqsof factbased on his own observations made at thehearing. This is what occurred in thepost-convictionhearing,when the matter was before the ~istrict Court: THE COURT: Do you have any other witnesses to call? MS. WING: No witnesses. THE COURT: Rebuttal witnesses? MR. ELISON: None. THE COURT: Counsel, let me make some observations for the record. Obviously I am not an expert or even an amateur on how a person acts when they are under the influence of cocaine. However, I did make these observations of Bernie Goldman when he was here during the trial. 

### I didn't see that he had any shakes or disruptive or mumbling speech. Hehad good eye contact. I didn't see any mood swings in the sense that oneminute he would be very angry, the next he would be euphoric. When the prosecutionwitnesses were on,hewas his usual abrasive self, as he has been for many years, but thatIs how he does his cases, and generally with some good success and sometimes not. Inoticedmany discussions between the Defendant and Mr.Goldman during the trial, but I should point out that it's beenmy experience with Bernie Goldmanwhen he goes to trial, he runs his own show and that it seems to be his policy that he does not allowhis clients to run the trial. He kind of decides how he is going to run the case and then he proceeds from there. It s alsobeenmy experience withMr. Goldman,and seemed to be his practice here, is that he will--he is quite clever abouthis trial tactics and his tactics here were consistentwith that, for example, when he attempted to just very briefly passing mention the fact that the Defendant had to be--had a background check or get checked in order to have a license. I am sure he would have referred to this in his closing argument and, of course, the State seized on that as opening some information in regards to the Defendant's background. If the Statehad not been alert, thatwould have slipped on through and the jury would have been left with the impression brought out by Goldman's final argument that the Defendantwas amodel citizen as far ashis business license is concerned. It seemed to me the gist of Goldman's case that he was primarily concerned with the informerandhepressed that hard at all the pretrial proceedings and obviously he pressed it on appeal. And 

### I got the impression that he knew the case was--and I will use it in quotes, Ifin tr~uble,~~ as far as the search was concerned and the statements that may have been made by the Defendant. And in conclusion, Counsel, I am of the opinion that another resultwould not have occurred if he would have had another lawyer. I think that another lawyer would not havebeen able to obtainhim amore favorable result. It ispossible, but I don't think so under the amount of evidence that the Statemarshalled against the Defendant in this case. Those are just, for the record, those are the observations that 

### Imade while we had the trial. I have examined the briefs that have been submitted in the case as well as the evidence presented here at the trial, and I do not feel that Mr. Goldman was an ineffective counsel. His decisions in many cases were tactical decisions that we may or may not agree with. I thinkhe took the approachthat to--the approach being not to spend a lot of timewith issues that were obvious losers and went ahead into--to press on the one issue where he thought that he knew if he could require--getme to require the State to identify the informer, that the State's case would collapse completely. And that seemed to be the gist of his case at the beginning and then during the trial, to attack the credibility of the State'switnesses during the trial itself. My conclusion, Counsel, is that your motion should be denied and it is so ordered. MS. WING: Your Honor, might I inquire, you have made some observations about Mr. Goldman and I wonder if you would mind putting something on the record of youryears of experience with him or how long he has practiced in front of you. THE COURT: Ihave--as CountyAttorney Ihavehad several cases against him and his father and eight years now of trials involvingMr. Goldman. And some of which he has been successful, but I didn't see anything different in his behavior and actions in this trial from other ones. I don't always agreewith theway thatMr. Goldman tries his cases, but you can't argue with success and he has in my court severalvery good successes,but thiswas not one of them. MR. ELISON: Regarding the Supreme Court opinion, how long do 

### Ihave to get that toyou? Tomorrow? Or is that not going to bear on the case at this point? THE COURT: Well, I have their opinion. MR. ELISON: Oh,okay--no,Imean the one inwhich Bernie was disbarred. THE COURT: Oh. I have a sense of what that is and I testified--no, itwas not this case. 

### Iwas aware of some of the allegations against him and so I have a pretty good idea what the circumstanceswere. It's largely of his cocaine use, but like 

### I said, Counsel, I have to admit that my expertise on cocaine users and how they behave in court is nonexistent, but he didn't seem--he didn't seem to be out of the norm for Bernie. And there were not occasions where Iwould talk tohim andhewould be like--would be spaced out or not understanding what 

### I am saying,you know. And so he seemed to be tracking well at the trial and all I can say is he made some tactical decisions and someworked and somedidn't work. MR. ELISON: I suppose I could have used an expert witness on what an addict on cocaine would act like? THE COURT: Well, tell me--

### MR. ELISON: I don't think there would be any particularly noticeable thing. It's going to be--it is going to be mostly--itIs a speed, so itIs an upper and would make him more--it actually might make him more productive on occasions, but it is also kind of a mind scrambler and so he will forget things. He will think that he is doing something that he really, really isn't successfully doing. He will forget what has happened a day or twobefore. And probablywhenhe leaves,hewon't get much sleep and it will throw his thinking off, but I suppose if there are no tactical errors or errors in the transcript that you can see-- THE COURT: Well, Iwouldn't say thathe--well, you know that thing about the--Mr. Coates' background check, that's not an error. That's a classic Bernie Goldman, I hate to say, maneuver, but it is a maneuver and he almost slipped that thing through and he just ran it through very quickly and had the State not picked up on that,hewould havehad an outstanding base for a closing argument. That'sa classic Bernie Goldmanmaneuver. So 

### I am not going to say itwas wrong to do that. Hemight have gotten it by, if the CountyAttorneywould not have been attentive at that point itwould have been in. And that's how Bernie tries his cases and he is frequently successful. MR. ELISON: So, in otherwords, it is not a mistake? THE COURT: I don't think it was a mistake. I think it was purposeful on Bernie's part, quite frankly,because I have seen him do things before. So that's my ruling, Counsel. Would youmake anappropriateorderreflectingmy ruling? MS. WING: I will.

Because of Rule 605, M.R.Evid., the District Court was incompetent as a witness to testify as to his observations, sworn
or unsworn, of the activities of counsel for the defendant during the District Court trial. If the District Court intended to be a witness, it should have been proper procedure to call in another district judge in order to hear the petition for post-convictionrelief. The point that the District Court made observations of fact

as a witness isbuttressed by the findings of factmade by the same judge which appear to be completely founded on the court's own observations. Witness: Findinqs of Fact 1. The court observed no signs ofMr. Goldmanbeing under the influence of drugs. There were no shakes or disruptive or mumbling speech. Hehad good eye contact. Therewere nomood swings in the sense that one minute he would be very angry, thenexthewouldbe euphoric. When theprosecution witnesses were testifying,he was hisusual abrasive selfashehas been formany years. His stylehas generally had somegood success and sometimes not. 2. Mr. Goldman held many discussions with the Defendant during the trial. It has been the Court's experience, however, that when Bernie Goldman goes to trial, it seems to be hispolicy thathe controlsthe caseand does not allowhis clients to run the trial. 3. It has been the court's experience that it is Mr. Goldman's practice to be clever with his trial tactics, and his tactics in this case were consistent. For example, he attempted tovery briefly inpassingmention the fact that the Defendant had to have a background check in order to obtain a business license. He surely would have referred to this in his closing argument. If the State had not been alert, the informationwould have slipped on through and the jury would have been left with the impression that the Defendant was a model citizen. The State,however, seized on that as opening the testimony for information in regards to the Defendant's background. The duty of a judge to conduct an impartial trial is illustrated in the following paragraph: The trial judge must strive to have the trial conducted in an atmosphere of impartiality. His conduct in trying a casemust be fair to both sides,and he should refrain from remarks that may injure a litigant. He should not engage in conduct which amounts to acting as counsel for one of theparties. Except where authorizedby statute, it is improper for a judge to assume the role of the witness in a case being tried before him, and doing soconstitutes reversibleerror. Howgreatadeparture from fairness amountstoreversible error isdeterminedby the answer tothe fundamental inquirywhether ornotwas done was prejudicial to the appellant or plaintiff in error.

75 Am.Jur.2d 191, Trial, 5 87. Rule 605 of the Montana Rules of Evidence is based upon its federal counterpart. Moore points out that the rule provides an llautomatic objection"because to require an actual objectionwould confront the opponent with a choice of not objecting with the result of allowing the testimony, and objecting, with theprobable result of excluding the testimony, but at the price of continuing the trial before a judge likely to feel that his integrity had been attacked by the objector. 10 Moore's Federal Practice, (2d ed. 1976), 605.01[3]. Two of the dangers pointed out by Moore in having the judge testify at the trial over which he is presiding are (1) who will rule on objections,claims of privilege and other matters normally under judicial control, and (2) in a bench trial the judge who testifieswill have to considerhis own testimony in the light of other testimony in the case. 

### In adopting findings of fact in the case at bar, the district judge weighed his own testimony as observations against the evidence adduced by the defendant and based his findings of fact upon his own observations, thus rejecting the evidence and testimony of the defendant. Moreover, both the District Court and the majority state as

a fact in their Opinion that a new trial for the defendant wouldnot end in a different result. Aside from it being sheer speculation,theprobable future resultof a fair trial shouldhave no weight in considering whether a defendant receive a fair trial before an impartial tribunal in the formerproceedings. The only question we should decide upon a petition for post-conviction relief iswhether thedefendant's sentence is subjectto collateral attack upon any ground of alleged error available under a writ of habeas corpus. Section 46-21-101, MCA. Those grounds do not include the possibility that in a new trial the defendant will be reconvicted. For the reasons foregoing, Iwould remand for a new hearing

on post-conviction relief before another district judge. Nothing would then preclude the present district judge from appearing as a witness to present his observations, which of course would be pertinent to the issues in this case. 

# (?Ah 

# i, ~~/~L~ Justice