NO. 81-466
INTHE SUPREME COURT OF THE STATE OF MONTANA 1983

STATE OF MONTANA, Plaintiff and Respondent,

VS. DONOVAN LaVALLEY, Defendant and Appellant.

Appeal from: DistrictCourt of the Fourth Judicial District, In and for the County of Missoula Honorable Douglas Harkin, Judge presiding. Counsel of ~ecord: For Appellant:
Ian Christopherson argued, Missoula, Montana For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana Mark Murphy, Assistant Attorney General, argued,

Helena, Montana Robert L. Deschamps 111, County Attorney, argued,

Missoula, Montana

Submitted: February 28, 1983,
Decided: April 14, 1983
Filed: 

# &* P .;c-/, ; 

## ,'7(

# <,2-MClerkMr. Justice John Conway Harrison delivered the Opinion of the Court.

Defendant appealsfrom hisconvictions of deliberatehomicide and aggravated kidnapping entered in the District Court of the FourthJudicial District, inand for the County of Missoula. Defendant shot and killed WilliamHomer Rock, 111, on April 10, 1980, 

### at the Nauditt residence, south of Lolo, Montana. The events leading up to the shooting are 

### as follows. Defendant married PennyNauditt inthe summer of 1979. Defendant and Penny Nauditt had a stormymarriagewhich precipitated numerous fights and separations. InDecember 1979, Penny obtained a divorce from defendant in a Missoula District Court. InJanuary 1980, defendantand Penny began living togetheragain. However, the reunion



### was short-lived and they soon separated. After being away for a few weeks, defendant returned 

### to Lolo

on or about April 8, 1980. On that day defendant 

### saw Penny at theLolopostoffice. They talkedwithout incident. On April 9, defendant and Penny had lunch together at the Country Kitchen in Missoula. Penny testified the meeting 

### was only 

### to set things straight so they could have a clean break. She claims she did not intend to see defendant again. Defendant testified they had lunch and agreed to meet later that evening when Penny got off work. Penny then went to work at her father's bar, the Golden Goose in Lolo. When Penny finished working, she stayed at the Golden Goose to drink with some friends. Defendant called the Golden Goose when Penny did not come to 

### meet him but she would not take his calls. Atapproximately 9:30 p.m., Penny called WilliamHomer Rock, 111, from the Golden Goose and asked him if he would like 

### to babysit her. Rock came to theGoldenGoose and drank with Penny until approximately 1:00 a.m. Atthat timePenny and Rock left the bar inseparate vehicles, and drove 

### to theNauditt residence where Penny was staying. Penny's parents, theNauditts, 

### were out of town and Penny 

### claims she asked Rock 

### to staywith her forpro-tection. When theyarrived attheNauditt's residence, Penny and Rock smoked marijuana, thenwent to bed together. Atapproximately2:00 

### a.m. 

## ,defendant decided 

### to drive to the Nauditt residence to check on Penny. When he arrived at the residence, he found Rock's pickup truck, which he did not recognize, parked inthe driveway. Defendant opened the hood on Rock's pickup truck and removed the distributor cap. He testified he 

### was concerned about Penny's safety and wanted to prevent a possible intruder

### 's escape while defendant entered the house through 

### a downstairs window. When Penny and Rock heard defendant open the downstairs window, they got out of bed 

### to investigate. Penny obtained her father's .22 caliber pistol which 

### was sitting on the headboard bookcase. As defendant entered the house through the window and 

### came up the stairway, he disconnected a phone which was ringing. When he reached the bedroom door he found Penny and Rock standing together. Both



### were naked. Defendant testified Rock pointed the gun athim and defendant reacted by striking Rock. Defendant and Rock had a brief struggle in the bedroom, and defendant took the gun from Rock. Defendant testified the gun fired during the struggle but admitted he had obtained possession of it. Penny testified defendant had taken the gun from Rock and fired it as she and Rock backed away. The bullet struck Rock in the abdomen and exited just below the main hipbone. The bullet did not strike any 

### major organs but did sever the right iliac vein and created

a largehole inthe right iliacartery. At

### trial, Dr. JohnPfaff testified Rock died from loss of blood but probably lived at leastten to fifteenminutes afterthe shooting. After Rock was shot, defendant kicked Rock in the head to keep him from getting anothergun. Defendant then unplugged the upstairs phone and left with Penny. Defendant testified Penny



### came willingly, Penny 

### claims defendant forced her 

### to go with him. Penny testified defendant forced her 

### to lay on the floor of his pickup truck while they drove toward Hamilton. She testifieddefendant pulled off the highway and stopped on theTrapper Creek Road where he proceeded to beat and rape her. Defendant testified they stopped atTrapper Creek to talk and that Penny wanted to make love but he refused. While they 

### were atTrapper Creek, the pickup became stuck inmud on 

### two separate occasions. Each 

### timedefendantgot outof the truck 

### to push and Penny drove. Penny did not attempt 

### to escape on eitheroccasion, but she does not recall why. After theygot thepickupunstuck, defendant and Penny drove to Salmon, Idaho, and got a motel room. Defendant testified he knew he was in trouble but defendant wanted towait fora fewdaysuntilhe could talktohis lawyer. Defendant registered atthe motel under a falsename. After registering, Defendant and Penny went 

### to the motel room 

### to rest. Atapproximately 2:00 p.m. onApril 10, Penny requested defendant to retrieve 

### some aspirin from his pickup which he did. Later they proceeded 

### to go downtown. Defendant went into a clothing store and bought clothes for Penny while she waited in the pickup. Defendant then went 

### to a drugstore to by insulin as he is a diabetic. Again, Penny waited inthe pickup. After defendant finished shopping, they purchased food atan A & W drive-in and returned tothe

### motel. Early inthe evening themotel manager called and tolddefendant someone had collided with defendant's pickup. When defendant went outside, he was surrounded by Salmon police officers and arrested. The Salmon policehad been alertedby the Missoula SheriffIsoffice. The police found the .22 pistol inthe back of defendant's pickup in a box of clothing. The police found Penny inthemotel 

### room. From her condition, it appeared she had been beaten about the mouth and head. She also had clumps of hair tornfrom herhead. They soughtmedical treatment forbothPenny and defendant and placed them into the custody of the Missoula County Sheriff 

### s office. When defendant was returned to Missoula, the Missoula County Attorney's off

### ice filed an Information charging defendant withdeliberatehomicide and aggravated kidnapping. Ajury trial commenced in District Court on April 20, 1981. During the proceeding, defendantfs counsel, among other things: stipulated to the admission of a color photograph of the victim; called six witnesses which he had not spoken with to testify about Penny's reputation, none of which had any opinion 

### or personal knowledge of Penny's reputation; did not present an instruction on selfdefense, and objected to the introduction of a self-defense instruction by the State; and stated to the jury during closing arguments that this 

### was not a 

### case of mitigated deliberate or negligent homicide and requested the jury 

### to find defendant guilty of deliberatehomicide 

### or acquit. On April 24, 1981, the jury returned a verdict of guilty 

### to the charges of deliberate homicide and aggravated kidnapping. Defendant appeals. Defendant raises several issues for review. We find one issue 

### to be dispositive; whether the omissions and deficiencies of defense counsel amount 

### to a denial of defendant's constitutional right to effective assistance of counsel as guaranteed by theSixthAmendment 

### to theUnited StatesConstitution and by Section 24, Article I1of theMontana Constitution. We note other instances of ineptness in the record which, although have 

### less substantial nature than the issues above, indicatea general lackof skilland preparation from the partof the defense counsel. In evaluating defense counsel's representation, it is not our function 

### to second-guess trial 

### tactics and the strategy. See, United Statesv. DeCoster (D.C. Circuit), 487 F.2d 1197. They noted that: "We 

# .. . presume that the trial counsel, appointed or retained, conscientiously seek, within the limits of preparation, ability, and knowledge of the law, and skill at trial, to accomplish 

### a successful result for his client." Wenote thatreasonablyeffectivecounsel does not mean thatthe defendant is constitutionallyguaranteed such assistance of counsel as will necessarily result in his acquittal. See, StewarQv. People (1972), 179 Colo. 31, 498 P.2d 933.Historically, in Montana and elsewhere, the burden has been heavy on one who seeks 

### to reverse a judgment on the grounds of incompetency of counsel. InStatev. Rose (1980)f --

. -. .- Mont

# . - 

## ,608 P.2d 1074, 37 St .Rep. 642, this Court adopted the "reasonably effective assistance test" 

### as stated by theNinth CircuitCourt of Appeals in Cooper v. Fitzharris (Ninth Cir. 1978), 586 F.2d 1325: "Persons accused of 

### crime 

### are entitled to the effective assistance of counsel acting within the range of competence demanded of attorneys in criminal cases." State v. Rose, 608 P.2d at1081. Until that case, the 

### test in this State had been one which established the standard as being that of "bad faith, sham, or farcicalrepresentations." This standard has since been applied in State v. Kubas (1982)I ---.- Mont

# . - --

### , 642 P.2d 147, 39 St.Rep. 456, and Fitzpatrickv. State (1981), -- - Mont

# . -----

## ,638 P.2d 1002, 38 St.Rep. 1448. Here, defendant bases his claim of ineffective assistance of counsel upon specific acts and omissions at trial. Again, citing -- Cooper, supra, this Court stated in 

### Rose, supra: "Where the 

### claim of ineffective assistance of counsel 

### rests upon specific acts and omissions of counsel at trial, as it does in this case, relief willbe granted onlyif it appears that the defendant 

### was prejudiced by counsel's conduct." Statev. Rose, 608 P.2d 1081. Generally, the rationale of these early ineffectiveness of counsel 

### cases 

### was based solely on due process motions. See, Bazelon The Defective Assistance of Counsel, 42 University of --- --. -- --- -- .- Cincinnati Law Review, p. 1. With the landmark case of Gideon #Pldweqfff v. anewrlght (1962). 372 U.S. 335, #83 S.Ct. 792, 9 L.Ed.2d 799, however, the right 

### to counsel 

### was recognized as standing on its

own as one of the fundamental human rights essential to a fair trial. See McMann v. Richardson (1970), 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763, wherein the court elucidated on and gave a renewed emphasis to this right when it stated that: "if the right 

### to counsel guaranteed by the constitution is 

### to serve its purpose, defendants cannot be left 

### to their 

### mercies of incm-petent counsel

# .. .'I Ina 

### similar vein, Mr. JusticeSchafferof the Illinois Supreme Court noted: "of all the rights that an accused person has, the right 

### to be representedby counsel, is by far themost pervasive, for it affects his ability to assert any other rights he may have." See, Schaffer, -- - Federalism and State - - - - CriminalProcedure, 70 Har.Law.Rev. 1. - - -- -- Recognizing the constitutional guarantee of assistance of counsel is a guarantee with a purpose 

## -- that purpose being to

assure that our adversary system of justice is really adversary and really does justice

## -- we willnot paper over the cracks in the house that Gideon built by hesitating 

### to provide an ample, meaningfulstandardincasesof anallegedincompetency of criminal defense counsels. In the present case, 

### we find defendant was prejudiced by counsel

### 's conduct. Numerous examples of prejudicial conduct are contained in the record. The first example involves counsel's failure to interview six character witnesses which he called to testify at the trial. Counsel had not spoken with any of the witnesses prior to trial. Although counsel was attempting to attack the character of Penny Nauditt, none of the witnesses had anyopinionastoPennyNauditt's character. Had these witnesses been able 

### to attack Penny Nauditt's character, they might have damaged the State's case. Instead

### , their testimony merely demonstrated counsel

### 's lack of investigation and preparation prior to

### trial. The next example involves counsel's failure 

### to present 

### competent jury instructions to the District Court. Again, this demonstrates a complete lack of preparation. Asa result, counsel did not present 

### to the jury any logical defenses to the charges. In this case, the State, in an attempt to protect the record, introduced the instruction on self-defense and counsel argued against that instruction. In addition, he failed 

### to argue there 

### were any mitigating circumstances. During closing arguments, counsel argued defendantdid not act inself-defense :"So, implying thathe had the gun, he probably pulled the trigger in self-defense, if you will believe that garbage you will believe anything. You might aswellconvict him." And, counsel stated the following about negligent homicide: "then, if you don't likethat, thenyou can go on down to negligent homicide and what that means, I have no idea. There was nobody that was negligent that night. There was no accidentatall. There was no accident." These statements by counsel left the jury with only one option

## -- conviction of deliberate homicide. A reasonably competent attorneyacting asadiligentconscientious advocatewould nothave made such 

### errors. Assuch, 

### we find defendantwas denied his constitutional right 

### to effective assistance of counsel. Therefore, 

### we hold the convictions of deliberate homicide and aggravated kidnapping must be reversed and order this cause be remanded to theDistrict Court fora new trial. Reversed and remanded.

4

We concur: 

### ?h-e&Q&@ Chief Justice