No. 13031 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

-- THE STATE OF MONTANA, Plaintiff and Respondent,

-vs

# - DANIEL E. McELVEEN, Defendant and Appellant.

Appeal from: District Court of theFourthJudicialDistrict, Honorable Edward Dussault

## ,Judge presiding. Counsel of Record: ForAppellant

### : Donald W. Molloy, Law Student, argued, Missoula, Montana David 

### J. Patterson appeared, Missoula, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana John F. North appeared, AssistantAttorneyGeneral,

Helena, Montana Richard P. Heinz, CountyAttorney, argued, Polson,

Montana

Submitted: November 5, 1975 DecidedEC + 

## 30

## 19%Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. This is a petition for post-conviction relief from a convictionand sentence of fouryears in the state prison on

a chargeof felony theft in thedistrict court,Lake County. Petitioner was tried on one count of felony theft based

on an information filed February 13, 1975,charging petitioner with purposely or knowingly obtaining or exerting unauthorized control over three trailer house tires and rims,valued atmore than $150, with the purpose of depriving the owner thereof. Petitioner had a court appointed counsel for the jury trial. Prior to, during, and after the trial,petitioner claimed his appointed counsel inadequately represented him at all times in question. The appointed counsel motioned to withdraw as attorney of record subsequent to the convictionand sentencing, this motion was granted by the district court. -TheMontana Defender Projectbrought thispetition on behalf of petitioner. The issue raised by this petition iswhether petitioner received adequate representation by his court-appointed attorney both in preparation and investigation for trial, aswell as at the trial. In Statev. Blakeslee, 131Mont. 47, 54, 306 P.2d 1103, this Court stated the fundamentalprinciple: "This defendantmay be as guilty as ever felon not hanged. He is nevertheless entitled to a trial consistent with our Constitution and Codes. 

## * 

## * *'I The right to counsel is expressly recognized in the constitutions of the United States and the State of Montana. The SixthAmendment to the United StatesConstitution provides: "Inall criminal prosecutions the accused shall enjoy the right to a speedy and public trial 

## * * * and to have the assistance of counsel for his defense.

### " This concepthas been held applicable to the statesby virtueof the dueprocess clause of the FourteenthAmendment to the United States Constitution. Gideon v. Wainwright, 372 U.S.

In Johnsonv. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L ed 1461, 1465,Mr. Justice Black said of the Sixth Amendment protections: 

### " 

## * * * The SixthAmendment standsas a constant admonition that if the constitutional safeguards itprovides be lost, justice will not 'still be done.' It embodies a realistic recognition of the obvious truth that the average defendantdoes not have the professional legal skill to protect himself when brought before a tribunalwith power to take his life or liberty, wherein the prosecution ispresented by experienced and learned Counsel.

### " Not only is the assistance of counsel 

### " 

## * * * often requisite to the very existence of a fair trial",Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 

### L ed 2d 530, 535,but such assistancemust be effective. The Ninth Circuit Court of Appeals has recognized the right to effective counsel in Wilson v. Rose, 366 F.2d 611, 616: 

### " 

## * * * In short,effective assistanceof counsel is guaranteed by the Sixth and FourteenthAmendments because it is 'essential to a fair trial'." The right to counselhas always been a part of Montana constitutional law. Article 111, S16, 1889Montana ~onstitution, provides: "Inall criminalprosecutions the accused shall have the right to appear and defend in person and by counsel

## * 

## * *." Article 11, S24, 1972Montana Constitution, contains the same language, thereby continuing the protection. This language has been interpreted by this Court to encompass effective assistance of counsel. Statev. Bubnash, 139Mont. 517, 366 P.2d 155. Although petitioner was represented by court-appointed counsel, a question remains as to whether the assistancewas effective, so as to ensure a fair trial. As the Alaska Supreme Court said in Risher v. State, 523 P.2d 421, 423:

### " 

## * * 

## * The mere fact that counsel represents an accused does not assure this constitutionallyguaranteed assistance. The assistance must be

'effective1 to be of any value." See,also,Wilson, supra. The Third Circuit Court of Appeals has said in Moore v. United States, 432 F.2d 730, 735: "Theadequacy of the representation which petitioner received, which is the real issue in this case, can only be decided on an evaluation of the servicesrendered on his behalf. 

## * * *" To determine the adequacy of the representation, we must look at the services rendered by appointed counsel in the context of the reasoning set forthby Justice John C. Harrison in State v. Forsness, 159Mont. 105, 110, 495 P.2d 176: "Claimed inadequacy of counselmust not be tested by a greater sophistication of appellate counsel, nor by that counsel'sunrivaled opportunity.to study the record at leisure and cite different tactics of perhaps doubtful efficacy. Success is not the test of efficient counsel, frequently neither vigor, zeal,nor skill can overcome the truth.'I Some tacticmust be employed at the trial and some coursemust be designed or formulated for the defense, from the time of counsel's appointment to represent a defendant until a final adjudicationof thematter. The tactics employed, lack of tactics, will be dealtwith below. This Court has recognized the test against which claims of inadequacy of counsel are considered that has been adopted in

a majority of other jurisdictions. State v. Noller, 142Mont. 35, 37, 381 P.2d 293. The test, known as the "farceand sham test", is set out by the Fifth Circuit Court of Appeals in Williams v. Beto, 354 F.2d 698, 704: "It is the general rule that relief from a final convictionon the ground of incompetentor ineffective counsel will be granted only when the trial was a farce,or a mockery of justice,or was shocking to the conscience of the reviewing court,or the purported representationwas only perfunctory,in bad faith, a sham, a pretense, or without adequate opportunity for conference or preparation." In considering a question of the adequacy of a defendant's representationby counsel, this Court in Noller quoted 50 the California case of Peoplev. WeinI/cal.2d 383, 326 P.2d 457, for the proposition that: 

### " 

## * * *Thehandling of the defense by counsel of the accused's own choice will not be declared inadequate except in those rare caseswhere his counsel displays such a lack of diligence and competence as to reduce the trial to a 'farce or a sham'

## * * *." This Courtwent on to say in Noller atp. 38: "Evidently the distinction, if any there is, between cases involving representation by retained or court-appointed counsel, has been ignored in applying the aforementioned rule. 

## * * *" And then noted in Noller: 

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## * * * Hindsight cannotnow be used to saywhat perhaps could have been done to achieve a possible but highly speculative result. 

## * * *" but if the record were not one which might be termed "openand shut", such speculationwould not be inappropriate. Williams, supra. The record in the instant case contains facts analogous to the reasons expressed in the landmark United States Supreme Court decision of Powellv. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L ed 158, 170,wherein the court said: 

### " 

## * * * The right to be heard would be, inmany cases, of little avail if itdid not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimesno skill in the science of law. If charged with crime,he is incapable, generally, of determining for himself whether the indictment isgood or bad. He isunfamiliar with the rulesof evidence. Left without the aid of counsel he may be put on trialwithoutproper charge,and convicted upon incompetent evidence,or evidence irrelevant to the issueor otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense,even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty,he faces the danger of conviction because he does not know how to establish his innocence."It iswell established in Moore 

### v. ~ichigan, 355 U.S. 155, 78 S.Ct. 191, 2 L ed 2d 167, 171, that: 

### " 

## * * * The right to counsel is not a right confined to representation during the trial on merits. 

## * * *" In order to representa defendant adequately, it is necessary that counselprepare for trial by attempting to discover all the facts and circumstances of the crime, including investigating

eyewitness accounts,as such investigation will inevitably affect the course of action followed in advising and defending the accused. In the instantcase the record shows therewas little, if any, attempt by appointedcounsel to substantiate petitioner's version of what transpired on the day during which the theft occurred. Nor was there an investigation of thepolice report

as related by the State's principal witness to ascertain its accuracy. Although a possibility exists that such an investigation could only be inimical to petitioner's position, it is incumbent on counsel to make a thorough investigation of the persons and events involved in the crime. As the Third Circuit said in Moore v. united States,



### " 

## * * * Adequate preparation for trial often may be a more important element in the effective assistance of counsel to which a defendant is entitled than the forensic skill exhibited in the courtroom. The careful investigation of a case and the thoughtful analysis of the information it yieldsmay disclose evidence of which even the defendant is unaware and may suggest issues and tactics at trial which would otherwise not emerge. 

## * * *" Due to the lack of a thorough investigation of the facts and circumstances surrounding the taking of the tires,we cannot determine whether any pretrialmotions were potentially available to petitioner. No attemptwas made to subpoena witnesses to verify petitioner's story to assist in the establishment of some defense, such as alibi, or to prove petitioner did not dothe actwith which he was charged. The United States Supreme Court stated at p. 165 in Powell: "It is not enough to assume that counsel thus precipitated into the case thought therewas no defense and exercised their best judgment in proceeding to trial without preparation. Neither they nor the court could saywhat a prompt and thorough-going investigationmight disclose as to the facts. 

## * * *I1 The United States District Court for the district of Montana has held the failure tomake a pretrial motion to suppress

as required under Montana law, and the refusal to subpoena alibi witnesseswithout attempting to investigatewhat theymight know about the case,or their reliability,requirga finding that a defendantwas without effective assistance of counsel. Application of Tomich, 221 F.Supp. 500, affirmed 332 F.2d 987. The United States District Court for the Northern District of Texas stated in Smothermanv. Beto, 276 F.Supp. 579, 588: 

### " 

## * * * The lawyerwho does not probe, does not inquire, and does not seek out all the facts relevant to his client's cause isprepared to do littlemore than stand still at the time of trial.

### " The failure to object to improper evidence, standing alone, isnot sufficientgrounds to support a claim of inadequate representation,Hester v. United States, 303 F.2d 47 (10thCir.), cert. denied 371 U.S. 847, 83 S.Ct. 80, 9 L ed 2d 82,but failure does provide support to substantiate such a claim. The Fifth Circuit Court ofAppeals inWilliams atp. 706 observed: "Court appointed counsel is no different to any other lawyer. He is still a lawyer, he is still practicing law,and he is no less confronted by difficult decisions of tactics and strategy. He cannot stand still and do nothing. That indeed might be the best evidence of incompetencyor infidelity,or ineffectiveness,or all three. 

## * * 

## *" Only two objections were made by the defense during the

course of the jury trial. One, which was sustained,wasmadeby petitioner himself to the questions of the county attorney based on petitioner's past criminal record. The only objection made by petitioner's appointed counsel was during the State's presentation of its rebuttal case, this objection was sustained. Although this Court disallowed in Noller hindsight as

a mechanism of assessing counsel's professional judgment and tactics employed at trial, the record reveals a pattern of presentation of evidencewhich is not consistent with the theory of the laws of evidence. The jury is composed of laymen,not versed in the sophistication of the laws of evidence, thus procedureshave been developed for jury trials to place the burden

on counsel to timely object to offered evidence before it is given to the jury. The presiding judge has the opportunity to decidewhether or not the trier of fact should be allowed to hear the evidence. In this way much irrelevant, immaterial,and prejudicial testimony is kept from the province of the jury. When the course is not observed by counsel there is a great risk the defendantwill not be found guilty of the crime forwhich he is charged,but guiltwill be found due to someprior criminal record or some circumstances not relevant to the crime at hand. One of the bases for the necessity of representation by counsel is to insure a fair trial. Counsel's effectiveness isbased on his knowledgeand use of the laws of evidence. If the knowledge is not used, the defendant is in little better position than if he were to defend himself. More important than petitioner's guilt or innocence in this case is the burden of whether or not the conviction received

was obtained fairly and in accordancewith federal and state constitutionalprinciples. The right to a fair trial encompasses the right to counsel, but the right to counsel would be illusory if it did not entailthe right to the effective assistance of counsel. The federal court in Smotherman at p. 586 said: "Adequaterepresentation in a criminalproceeding is the cumulative act of affording the defendant an adequatedefense. Defense attorneys are called upon to apply their knowledge,experience and talents to a given set of facts and to derive from such fusion a defense which the Sixth Amendment requires to be adequate, notmiraculous. When the adequacy of a defense rendered by an attorney is subjected to attack, the relevant consideration is not whether the casewas lost where it could have been won, but whether counsel

'stood still and did nothing', [citationomitted] to the extent that his representation failed to render reasonably effective assistance to the accused. [citations omitted] When appearance of counsel takes on the cloak of pro forma rather than that of zeal and action, the defendanthas not had his day in court." The record before us in this case indicates that the conduct of this trial by court appointed counsel deprived petitioner of effective representation. Therefore,we grant petitioner's petition for post-conviction relief, ordering the district court to set aside the convic

/' Chief Justice 

### /- 

# / We concur:

----me--------------------------- JusticesMr. JusticeWesley Castles and Mr. Justice John Conway Harrison dissenting:

We dissent. Although we do not disagree with any of the law stated in the majority opinion,we disagree on the factsof the representation. The defendant,here, is a "stir-wise"individualwith ten pages of "rap sheet" showingnumerous arrests and convictions in many states of the nation. By his own claim he has attended law schools and studied lawand is a self-styled cell block lawyer. His guilt in the instant case is clear beyond any possible doubt. The background of this case indicates to

us that he had planned an appeal based upon "incompetence"of counsel even before his trial. The affidavit of defense counsel shows that the defendantnever told a consistent story to his

own counsel, gave him no facts, ignored counsel's advice,gave him handwritten directionson how to handle the trial, and presented an impossibledefense situation. Counsel should be commended for trying to defend him as well as he could. The handwritten directions mentioned are a classic "DickTracy" comic strip diatribe. Faced with an impossibledefense posture, counsel should not be criticized nor should the defendant have a new trial.