NO. 81-466 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS. 

DONOVAN LaVALLEY, 

Defendant and Appellant. 

Appeal from: District Court 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-M 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Defendant appeals from his convict ions of deliberate homicide 

and aggravated kidnapping entered in the District Court of the 

Fourth Judicial District, in and for the County of Missoula. 

Defendant shot and killed William Homer 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 Penny Nauditt in the summer of 1979. Defendant and Penny 

Nauditt had a stormy marriage which precipitated numerous fights 

and separations. In December 1979, Penny obtained a divorce from 

defendant in a Missoula District Court. In January 1980, defendant and Penny began living together again. 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 

the Lolo post office. They talked without 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. 

At approximately 9:30 p.m., Penny called William Homer Rock, 

111, from the Golden Goose and asked him if he would like to 

babysit her. Rock came to the Golden Goose and drank with Penny 

until approximately 1:00 a.m. At that time Penny and Rock left 

the bar in separate vehicles, and drove to the Nauditt residence 

where Penny was staying. Penny's parents, the Nauditts, were out 

of town and Penny claims she asked Rock to stay with her for pro- 
tection. When they arrived at the Nauditt's residence, Penny and 

Rock smoked marijuana, then went to bed together. 

At approximately 2:00 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 in the 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 at him 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 large hole in the right iliac artery. At trial, Dr. John Pfaff 

testified Rock died from loss of blood but probably lived at 

least ten to fifteen minutes after the shooting. 

After Rock was shot, defendant kicked Rock in the head to 

keep him from getting another gun. 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 testified 
defendant pulled off the highway and stopped on the Trapper Creek 

Road where he proceeded to beat and rape her. Defendant 

testified they stopped at Trapper Creek to talk and that Penny 

wanted to make love but he refused. While they were at Trapper 

Creek, the pickup became stuck in mud on two separate occasions. 

Each time defendant got out of the truck to push and Penny drove. 

Penny did not attempt to escape on either occasion, but she does 

not recall why. After they got the pickup unstuck, defendant and 

Penny drove to Salmon, Idaho, and got a motel room. Defendant 

testified he knew he was in trouble but defendant wanted to wait 

for a few days until he could talk to his lawyer. 

Defendant registered at the motel under a false name. After 

registering, Defendant and Penny went to the motel room to rest. 

At approximately 2:00 p.m. on April 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 in the pickup. After defendant finished shopping, they purchased food at an A & W drive-in 

and returned to the motel. 

Early in the evening the motel manager called and told defendant someone had collided with defendant's pickup. When defendant went outside, he was surrounded by Salmon police officers 

and arrested. The Salmon police had been alerted by the Missoula 

Sheriff Is off ice. The police found the .22 pistol in the back of 

defendant's pickup in a box of clothing. The police found Penny 

in the motel room. From her condition, it appeared she had been 

beaten about the mouth and head. She also had clumps of hair 

torn from her head. They sought medical treatment for both Penny 

and defendant and placed them into the custody of the Missoula 

County Sheriff s off ice. 

When defendant was returned to Missoula, the Missoula County 

Attorney's off ice filed an Information charging defendant with 
deliberate homicide and aggravated kidnapping. A jury trial commenced in District Court on April 20, 1981. During the proceeding, defendantf s 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 deliberate homicide 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 

the Sixth Amendment to the United States Constitution and by Section 24, Article I1 of the Montana Constitution. 

We note other instances of ineptness in the record which, 

although have less substantial nature than the issues above, 

indicate a general lack of skill and preparation from the part of 

the defense counsel. In evaluating defense counsel 's representation, it is not our function to second-guess trial tactics and 

the strategy. See, United States v. 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." We note that reasonably effective counsel does not mean 

that the defendant is constitutionally guaranteed such assistance 

of counsel as will necessarily result in his acquittal. See, 

StewarQ v. 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. 

In State v. Rose (1980)f - - . -. .- Mont . - , 608 P.2d 1074, 37 

St .Rep. 642, this Court adopted the "reasonably effective 

assistance test" as stated by the Ninth Circuit Court 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 

at 1081. 

Until that case, the test in this State had been one which 

established the standard as being that of "bad faith, sham, or 

farcical representations." 

This standard has since been applied in State v. Kubas 

(1982) I --- .- Mon t . - -- , 642 P.2d 147, 39 St.Rep. 456, and 

Fitzpatrick v. 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 will be granted only if it appears that 

the defendant was prejudiced by counsel 's 

conduct." State v. 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 In a similar vein, Mr. Justice Schaf fer of 

the Illinois Supreme Court noted: "of all the rights that an 

accused person has, the right to be represented by counsel, is by 

far the most pervasive, for it affects his ability to assert any 

other rights he may have." See, Schaffer, -- - Federalism - and State - - - 

Criminal Procedure, 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 will not paper over the cracks in 

the house that Gideon built by hesitating to provide an ample, 

meaningful standard in cases of an alleged incompetency 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 

any opinion as to Penny Nauditt'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. As a 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 defendant did not act in self-defense : 
"So, implying that he had the gun, he probably 

pulled the trigger in self-defense, if you 

will believe that garbage you will believe 

anything. You might as well convict him." 

And, counsel stated the following about negligent homicide : 

"then, if you don't like that, then you 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 accident at all. There was no accident." 

These statements by counsel left the jury with only one 

option -- conviction of deliberate homicide. A reasonably competent attorney acting as a diligent conscientious advocate would 

not have made such errors. As such, we find defendant was 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 the District Court for a new trial. 

Reversed and remanded. 

4 

We concur: 

?h-e&Q&@ 

Chief Justice