NO. 88-341 

TN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

PI-aintif f and Respondent, 

-vsTAR SCOTT STEVlART, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas McKittrick, Judge presidinq. 

COUNSEL OF RECORD: 

For Appellant: 

John Keith, Great Fal-ls, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Joe R. Roberts, Asst. Atty. General, Helena 

Patrick L. Paul, County Attorney, Great Falls, Montana 

F.-. Rrant S. T,iqht, Deputv Countv Attorney, Great Falls 

cD 

0 ,. - - - 2 

AJ I 

Submitted on Briefs: Dec. 2, 1988 

Decided: December 28, 1988 

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

Court. 

Appellant, Tab Scott Stewart, appeals his conviction of 

burglary and aggravated burglary, both felonies, and 

misdemeanor theft, in the Eighth Judicial District, Cascade 

County, Montana. Appellant's only claim on appeal is that he 

was denied effective assistance of counsel. We affirm the 

conviction. 

On September 11, 1987, Pat Maag reported a burglary at 

his home in Great Falls, Montana. Mr. Maag occupied the 

basement apartment in a large, two story building. Various 

miscellaneous items were taken, including a gold-tone Timex 

watch. Mr. Maag did not see anyone enter his apartment. 

However, Brian Collins, a neighbor, saw the appellant in the 

alley behind Mr. Maag's residence on the previous night. 

Prior to the burglary, the appellant had moved from the 

apartment complex hecause he had problems with the landlord. 

Appellant was also charged in a second, unrelated 

crime. On October 1, 1987, at approximately 2:30 a.m., Mary 

Skinner was asleep at home with her six-year-old daughter, 

Meaghan. She was awakened by someone in her closet. Mrs. 

Skinner spoke to the person, assuming the person was one of 

her other children. Startled by her question, the intruder 

moved toward the bed and grabbed Mrs. Skinner around the 

throat and began to choke her and strike her face. Mrs. 

Skinner screamed for her other daughter, Maile, who was 

asleep in the next room. Meaghan awoke and attempted to flee 

the room. The defendant grabbed Meaghan around the throat 

and threw her onto the bed. Meanwhile, Maile telephoned the 

police from the kitchen. There she confronted the assailant, 

and told him she had contacted the police. Mrs. Skinner 

chased the assailant into the living room area where she hit 
him with a waterbed railing. Finally, the assailant fled the 

home. 

When the police arrived, Mrs. Skinner gave them a 

description of the assailant. She stated he had short wavy 

blond hair and wore a gray, fleece-like jacket and blue 

jeans. Mrs. Skinner thought the assailant seemed familiar to 

her, but she was unable to identify him. On October 5, 1987, 

Maile gave Mrs. Skinner a picture of a friend who fit the 

description of the assailant. The person in the photo was 

the appellant, Tab Stewart. 

Appellant was arrested and charged on November 4, 1987. 

After a jury trial on February 24, 1988, the appellant was 

found guilty of all charges. Appellant claims he was denied 

effective assistance of counsel. We disagree. 

Much of this appeal focuses on the testimony of Keith 

Zigan, the appellant's roommate and the State's key witness. 

Initially, Mr. Zigan told the police that he had been with 

the appellant all evening on the night of the Skinner 

burglary, substantiating the appellant's alibi defense. 

However, Zigan's testimonv at trial contradicted his earlier 

statements. Zigan testified that although he and the 

appellant had been together for a few hours on the night of 

the burglary, they parted company around 9:00 p.m. He also 

stated that on the morning of October 1, 1987, he saw fresh 

scratches on the appellant's chest. Zigan testified the 

appellant told him about the Skinner burglary, and admitted 

he hit a woman and he may have also hit a child. Zigan also 

identified a gray jacket as belonging to the appellant which 

was similar to the jacket Mrs. Skinner described as being 

worn by her assailant. 

Additionally, Zigan aided the police in the recovery of 

the stolen watch. He testified that he saw the appellant go 

behind their residence and throw a gold colored watch into 
the field. The watch was later recovered by Great Falls 

police officers and identified by Mr. Maag as belonginq to 

him. 

Although appellant alleges a number of errors by trial 

counsel, only one such allegation merits this Court's 

discussion. Appellant contends his counsel's performance was 

deficient because he failed to adequately present evidence to 

impeach the testimony of Keith Ziqan. Zigan testified that, 

through the kitchen window of their daylight basement 

apartment, he saw the defendant throw a gold colored watch 

into a field. Appellant contends Zigan could not have seen 

the purported incident from that specific window, because 

stacked wood obstructed the view. Appellant claims counsel's 

failure to call additional witnesses or present photographs 

to impeach Zigan's testimony resulted in substantial 

prejudice. From our review of the record, we see no error. 

Ineffective assistance of counsel requires specific 

acts or omissions which prejudice defendant's case and result 

in the denial of a fair trial. State v. Grant (Mont. 1985), 

704 P.2d 1064, 1065, 42 St.Rep. 1248, 1250. This Court has 

long recognized and consistently followed the test adopted by 

the United States Supreme Court for determining when 

ineffective assistance of counsel has occurred: 

First, the defendant must show that 

counsel ' s performance was deficj-ent . This requires showing that counsel made 

errors so serious that counsel was not 

functioning as the "counsel" guaranteed 

the defendant by the Sixth Amendment. 

Second, the defendant must show that the 

deficient performance prejudiced the 

defense. 

Strickland v. Washington (1984), 466 1J.S. 668, 687, 104 S.Ct. 

2052, 2064, 80 L.Ed.2d 674, 693. To show prejudice, a 

defendant must show that, but for counsel's unprofessional 
errors, there was reasonable probability that the result of 

the proceeding would have been different. State v. 

Strandberg (Mont. 1986), 724 P.2d 710, 713, 43 St.Rep. 1591, 

1594. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome of the trial. State 

v. Robbins (Mont. 1985), 708 P.2d 227, 232, 42 St.Rep. 1440, 

1444, citing Strickland, supra. 

It will generally be appropriate for a 

reviewing court to assess counsel's 

overall performance throughout the case 

in order to determine whether the 

"identified acts or omissions" overcome 

the presumption that a counsel rendered 

reasonable professional assistance. 

Since "[tlhere are countless ways to 

provide effective assistance in any given 

case, " . . . unless consideration is 

given to counsel's overall performance, 

before and at trial, it will be "all toc 

easy for a court, examining counsel's 

defense after it has proved unsuccessful, 

to conclude that a particular act or 

omission of counsel was unreasonable. . . ." (citations omitted.) 

State v. Leavens (Mont. 1986), 723 P.2d 236, 237, 43 St.Rep. 

1431, 1433, citing Kimrnelman v. Morrison (1986), 477 U.S. 

365, 386, 106 S.Ct. 2574, 2589, 91 L.Ed.2d 305, 326, and 

Strickland, supra. 

Appellant's allegation of Ziqan's obstructed view was 

addressed extensively during trial. It was initially raised 

in counsel's opening statement and strongly reiterated during 

closing remarks as one of many inconsistencies in Zigan's 

testimony. More importantly, counsel sought to impeach 

Zigan's testimony through the use of a diagram of the 

apartment which illustrated how the wood pile obstructed 

Zigan's view of the field. It is notable that even the 

appellant testified that it is possible to see someone 

outside the window from inside the apartment. 
Appellant's alleged error amounts to an attempt to 

second guess counsel's trial tactics and strategies. Where 

no prejudice is shown, we will not question counsel's 

professional deliberations. State v. Henricks (1983) , 206 

Mont. 469, 672 P.2d 20. 

Defendant fails to point to any evidence to 

substantiate his allegation of ineffective assistance of 

counsel or prove his counsel's actions deprived him of a fair 

trial. We find no merit in the appellant's contentions. 

Affirmed. 

We concur: 

@&* 

Justices