No. 94-491

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

STATE OF MONTANA,

Plaintiff and Respondent,

ANTONIO RUBIN LEYBA,

Defendant and Appellant.

APPEAL FROM: Di.strict Court of the Second Judicial District,

In and for the County of Silver Bow,

The Honorable James E. Purcell, Judge presiding

COUNSEL OF RECORD:

For Appellant:

Ian Christopherson, Christopherson Law

Offices, Las Vegas, Nevada

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Cregg Coughlin, Assistant Attorney General,

Helena, Montana

Robert M. McCarthy, Silver Bow County

Attorney, Brad Newman, Deputy County Attorney,

Butte, Montana

Submitted on Briefs: November 30, 1995

Decided: January 9, 1996

Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.

Defendant Antonio R. Leyba appeals from a jury verdict of the

Second Judicial District Court, Silver Bow County, finding him

guilty of deliberate homicide. We affirm.

The issues on appeal are as follows:

1 . Was the defendant denied the effective assistance of

counsel?

2 . Did the District Court err in not instructing the jury sua

sponte on the elements of mitigated deliberate homicide?

3 . Was there sufficient evidence to support the jury

verdict?

FACTS

On January 2, 1994, a Butte resident discovered that a group

of teenagers had held an unauthorized drinking party in his home

while he was away for the New Year's holiday. He later determined

that three of his rifles were missing and assumed the teenagers had

stolen them. He directed his son-in-law, defendant Antonio R.

Leyba, to see if he could find out the serial numbers on the

missing rifles. Actually the rifles had not been stolen by the

teenagers, but had been pawned by Leyba at the Mountain Man pawn

shop in Butte.

On the morning of January 3, 1994, a clerk in a store adjacent

to the pawn shop heard shouting and other noises coming from the

pawn shop. The clerk called the police after being told by a man

who had come into her shop that there was a "mess" next door. The

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two police officers who arrived on the scene discovered that the

pawn shop clerk, Charlie Miller, had been bludgeoned and stabbed to

death. There was a large amount of blood on the floor which

contained shoe prints. The officers discovered a handle from a

hatchet that appeared to have blood on it and eventually discovered

the head to the hatchet on a top shelf in the back room. Officers

also found a bloody fingerprint which the Forensic Sciences

Division of the Montana Department of Justice later positively

identified as Leyba's fingerprint.

When officers questioned Leyba, he told them he was at the

pawn shop on the morning of January 3, 1994, to get serial numbers

for rifles, but because the store was crowded he left to check with

other sport shops in town. After officers told Leyba about the

physical evidence they had collected, including bloody shoe prints

which matched his athletic shoes, and his bloody fingerprint, Leyba

changed his story. He said that he saw two men take Miller into

the back room and beat him up, but that after seeing the body he

decided to leave. After officers told Leyba his story was not

credible, he admitted the murder.

When officers searched Leyba's residence and vehicle they

discovered the rifles, a three-inch skinning knife, an eleven-inch

knife, one framing hammer, one claw hammer, athletic shoes and a

cordless telephone, all of which had human blood on them. Although

he admitted committing the murder, Leyba claimed he had acted in

self-defense. Leyba is 6' tall and weighs approximately 200

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pounds. He suffered no wounds in the altercation. Miller, who was

approximately 5'4" tall and weighed 135 pounds, suffered various

defensive wounds to his hands and wrists in addition to the fatal

blows.

On January 27, 1994, Leyba was charged with deliberate

homicide pursuant to § 45-5-102(l) (a), MCA (1993). On June 20-23,

1994, he was tried by a jury and found guilty. He was sentenced to

100 years in prison, plus an additional 10 years for the use of

dangerous weapons in commission of the offense, with 25 years

suspended. The District Court denied Leyba's post-trial motion to

alter or amend the judgment and this appeal followed.

ISSUE 1

Was the defendant denied the effective assistance of counsel?

Leyba claims his Sixth Amendment right to effective assistance

of counsel was violated because his defense counsel only offered a

deliberate homicide jury instruction. On appeal, Leyba contends

his defense was based on mitigating circumstances and his defense

counsel should have offered an instruction which would have allowed

the jury to consider whether he was guilty of mitigated deliberate

homicide.

We review claims of ineffective assistance of counsel based on

a two-part test set forth in Strickland v. Washington (1984), 466

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The defendant must

first establish that counsel's performance was deficient in that

counsel did not act within the range of competence demanded of

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attorneys in criminal cases. Strickland, 466 U.S. at 687; Walker

v. State (1993), 261 Mont. 1, 6, 862 P.2d 1, 4; State v. Senn

(1990), 244 Mont. 56, 59, 795 P.2d 973, 975. To satisfy the second

prong of the test, the defendant must establish that the deficient

performance prejudiced him so as to deprive him of a fair trial.

Strickland, 466 U.S. at 687; Walker, 862 P.2d at 4. The defendant

must prove both elements of the test and the burden is heavy on a

defendant seeking to reverse a judgment on the grounds of

ineffective assistance of counsel. Walker, 862 P.2d at 4 (citing

State v. McColley (1991), 247 Mont. 524, 526, 807 P.2d 1358, 1360).

We addressed a claim similar to Leyba's in State v. Sheppard

(1995), 270 Mont. 122, 890 P.2d 754 (Sheuuard II). After we

affirmed the defendant's conviction for sexual intercourse without

consent in State v. Sheppard (1992), 253 Mont. 118, 832 P.2d 370

(Sheppard I), the defendant sought post-conviction relief in the

district court. Sheppard claimed ineffective assistance of counsel

because his attorney failed to offer a jury instruction on a lesser

offense. In affirming the district court's denial of postconviction relief, we stated that "when defense counsel makes a

tactical decision to forgo an instruction that is inconsistent with

the defense, we will not find error supporting an ineffective

assistance of counsel claim." Shevpard II, 890 P.2d at 758 (citing

State v. Johnson (1993), 257 Mont. 157, 163, 848 P.2d 496, 499).

Furthermore, we have stated that in order to constitute ineffective

assistance, acts of counsel "must stem from neglect or ignorance

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rather than from informed, professional deliberation." State v.

Paulson (1991), 250 Mont. 32, 44, 817 P.Zd 1137, 1144-45.

The record indicates that Leyba's defense at trial was that he

killed Miller in self-defense. Defense counsel provided notice to

the State that he would rely on a self-defense theory and that the

issue for the jury would be whether the use of force by Leyba was

justified. Defense counsel presented witnesses who testified that

Leyba was a peaceful person and a good father and husband.

Witnesses testified that Miller was in a bad mood on the morning he

was killed. Defense counsel presented psychological testimony to

explain that Leyba was faced with a "fight or flight" response to

a life-threatening situation. Leyba claimed the brutal killing was

an emotionally charged response to a violent attack by Miller. All

of this evidence was consistent with Leyba's self-defense claim

Leyba also made it clear to the District Court that he did not

want the jury to consider the mitigated deliberate homicide

instructions. After the State had requested that the mitigated

deliberate homicide instructions be withdrawn, the following

exchange took place:

DEFENSE COUNSEL: I've spoken about this with my client,

and we agree those will be withdrawn and we will not

offer a mitigated deliberate --

TONY LEYBA: I want it deliberate. If they are going to

find me guilty, I want it deliberate.

The District Court then withdrew the mitigated deliberate homicide

instructions.

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Leyba and his attorney made a tactical decision to seek

absolute acquittal on the theory of self-defense. Such a decision

was consistent with Leyba's theory of self-defense and was a trial

strategy based on informed professional deliberation. It was not

the result of neglect or deficient performance on the part of

defense counsel.

A similar situation was presented in Bashor v. Risley (9th

Cir. 1984), 730 F.2d 1228, cerf.denied (1984), 469 U.S. 838, where a

defendant convicted of deliberate homicide argued that his trial

counsel was ineffective for failing to give the jury the option of

convicting him of negligent or mitigated deliberate homicide. In

rejecting his argument, the Ninth Circuit stated as follows:

It is true that counsel did not offer a negligent

homicide instruction and that he objected to the

mitigated deliberate homicide instruction. The record

discloses that counsel did so not out of ignorance of the

law but as the result of a tactical decision that the

jury should be forced to the choice of finding Bashor

guilty of deliberate homicide or acquitting him outright.

With the benefit of hindsight we know that this strategy

was incorrect; however, it did not constitute ineffective

assistance of counsel.

Bashor, 730 F.2d at 1241.

Now that hindsight demonstrates his trial strategy was not

successful, Leyba seeks a second opportunity to try the case under

a different theory. We will not, however, second-guess trial

tactics and strategy. Walker, 862 P.2d at 4; State v. Johnson

(1993), 257 Mont,. 157, 163, 848 P.2d 496, 499. The performance of

Leyba's counsel was not deficient and was within the range of

competence demanded of attorneys in criminal cases.

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Having determined that Leyba's claim does not satisfy the

first element of the Strickland test, it is unnecessary to analyze

the second element of the test. We conclude that Leyba was not

denied his constitutional right to effective assistance of counsel.

ISSUE 2

Did the District Court err in not instructing the jury suasponte

on the elements of mitigated deliberate homicide?

We review j.ury instructions in criminal cases to determine

whether the instructions, as a whole, fully and fairly instruct the

jury on the law applicable to the case. State v. Long (Mont.

19951, 52 St. Rep. 1204, 1205. See also State v. Brandon (1994),

264 Mont. 231, 237, 870 P.2d 734, 737 (citing State v. Lundblade

(1981), 191 Mont. 526, 529-30, 625 P.2d 545, 548).

Leyba claims it was error for the District Court not to

instruct the jury suasponte on the elements of mitigated deliberate

homicide. He contends that the jury was faced with an all or

nothing choice between conviction and acquittal. Leyba relies on

Beck v. Alabama (1980), 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d

392, to argue tha,t the evidence clearly weighs toward the mitigated

charge and failure of the District Court to so instruct the jury

violated his due process rights. However, in Beck the issue was an

Alabama statute which prohibited the jury from considering a lesser

included offense. Furthermore, four years following Beck the

Supreme Court stated that:

Although the Beck rule rests on the premise that a lesser

included offense instruction in a capital case is of

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benefit to the defendant, there may well be cases in

which the defendant will be confident enough that the

State has not proved capital murder that he will still

want to take his chances with the jury. If so, we see

little reason to require him . . to give the State what

he perceives as an advantage--an opportunity to convict

him of a lesser offense if it fails to persuade the jury

that he is guilty of capital murder.

Spaziano v. Florida (1984), 468 U.S. 447, 456-57, 104 S. Ct. 3154,

3160, 82 L. Ed. 2d 340, 350.

In ShenuardL, the defendant, like Leyba, argued that the

district court should have instructed the jury suasponte on a lesser

offense. There we stated that, upon request, a defendant is

entitled to an instruction about a lesser offense if the evidence

would permit a jury to find him guilty of the lesser offense and

acquit him of the greater. Sheppard I, 832 P.2d at 373. The rule

in Montana and in the majority of states is that if a request for

such an instruction is not made, the appellate court will not

overturn the conviction absent plain error. Shenuard I, 832 P.2d

at 373. We held that

the prosecution and defense must have the option of

foregoing a lesser charge instruction for strategic

reasons. . . . [Mlandatory sua sponte jury instruction on

lesser offenses is inconsistent with Montana law and our

public policy of allowing trial counsel to conduct the

case according to his or her own strategy . . .

Shevpard I, 832 P.2d at 373.

In the present case, the record indicates that Leyba chose to

take his chances that the jury would not convict him of deliberate

homicide based on his theory of self-defense. Not only did Leyba

fail to object to the State's requested withdrawal of the mitigated

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deliberate homicide instructions, he stated on the record that if

the jury was to find him guilty, he wanted it deliberate. Unlike

&.&, where a state statute foreclosed the opportunity for the jury

to consider a lesser offense, Leyba voluntarily crafted his own

trial strategy to avoid the jury considering the lesser charge. He

cannot now with the benefit of hindsight be heard to complain that

the instructions were insufficient and that the result violates his

due process rights.

We conclude that, as a whole, the jury instructions fully and

fairly instructed the jury on the law applicable to the case. The

District Court did not err in failing to instruct the jury suasponte

on the offense of mitigated deliberate homicide.

ISSUE 3

Was there sufficient evidence to support the jury verdict?

We review the sufficiency of the evidence to determine

whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. State

v. Arlington (1994), 265 Mont. 127, 146, 875 P.2d 307, 318 (quoting

State v. Cyr (19871, 229 Mont. 337, 339, 746 P.2d 120, 122).

Leyba argues there was insufficient evidence to support the

jury verdict. He claims he did not have a motive to deliberately

plan the death of Miller, nor did he have the criminal intent to

kill Miller. Leyba's argument is based upon ~ensrea requirements

that are no longer the law in Montana.

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Section 45-5-102(l) (a), MCA (1993), provides that "[a] person

commits the offense of deliberate homicide if: (a) he purposely or

knowingly causes the death of another human being . . . .'I The

State is not required to prove motive, nor is it required to

establish that the killing was premeditated. We have stated:

The State need not establish a specific purpose to kill.

Nor must it show that death was the result of deliberation other than the deliberation implicit within the

statutory definitions of "purposely" and "knowingly."

State v. Weinberger (1983), 204 Mont. 278, 289-90, 665 P.2d 202,

208-09 (citing State v. Sharbono (19771, 175 Mont. 373, 392, 563

P.2d 61, 72-73). If the act which causes the death is done

purposely or knowingly, deliberate homicide is committed even if

death is not the intended result. State v. McKimmie (1988), 232

Mont. 227, 231-32, 756 P.2d 1135, 1138 (citing State v. Sigler

(1984), 210 Mont. 248, 260, 688 P.2d 749, 755).

In Weinberaer, we cited the following Compiler's Comments to

5 45-5-102, MCA, and then stated:

"'Purposely' is the most culpable mental

state and implies an objective or design to engage

in certain conduct, although not particularly toward some result.

'Knowingly' . . . refers to a state of mind in

which a person acts, while not toward a certain objective, at least

with jidl knowledge of relevant facts and circumstances. Together

these terms replace the concepts of malice and

intent . , . premeditation is no longer an element

of homicide . . . .'I

We agree. We have previously recognized the legislative

changes in the requirements of rne?lS rea. State v. Sharbono,

supra, 175 Mont. at 392-394, 563 P.2d at 72-73; Statev.

Coleman (1978), 177 Mont. 1, 30-31, 579 P.2d 732, 750,

cert. denied, 448 U.S. 914, 101 S.Ct. 34, 65 L.Ed.2d

1177. Here, defendant's objection to Instruction NO. 11

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on the ground that it was incomplete is founded upon mans

reu requirements that are no longer the law in Montana.

Weinberqer, 665 P.Zd at 209. Leyba's arguments in regard to motive

and premeditation are therefore without merit.

Leyba goes on to argue that there was no direct evidence which

proved deliberate homicide. Evidence was presented to the jury

concerning Leyba's awareness and knowledge of his actions. Leyba

admitted to not liking Miller and to chasing him around the store.

The forensic evidence proved that Leyba bludgeoned Miller's head

with one or more blunt instruments, breaking the skull open "like

an eggshell." Miller's throat had been cut six times, cutting both

the carotid artery and his internal jugular vein. Leyba also

stabbed Miller nine times in the back when Miller was immobile.

Leyba then concealed the fact he had been at the pawn shop and did

not tell anyone he had been attacked by Miller.

When Leyba fled the murder scene he took four of the murder

weapons with him and concealed them in his vehicle. He washed

Miller's blood off his hands and face and removed his outer

clothing to conceal the fact that he had been involved in a brutal

attack. There was sufficient evidence for the jury to find that

Leyba acted knowingly, because even if death was not the intended

result, he was aware of the high probability that such a result

would be caused by his conduct. Section 45-2-101(33), MCA (1993).

The jury considered all the evidence presented, including

Leyba's own admission, his bloody fingerprint and shoe print, the

nature of the injuries, and his possession and concealment of the

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murder weapons. The jury did not find Leyba's theory of

self-defense credible. We conclude there was sufficient evidence

to support Leyba's conviction of deliberate homicide pursuant to

5 45-5-102(l) (a), MCA (19931, and affirm the jury's verdict and the

District Court's judqment and order on the matter.

JustiWe concur:

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