No. 89-617 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 9 0 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsRICKIE LEE CLELAND, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Thomas C. Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Edmund F. Sheehy, Jr.; Cannon & Sheehy, Helena, 

Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

John Paulson, Assistant Attorney General, Helena, 

Montana 

Mike McGrath, County Attorney, Helena, Montana 

Lisa Leckie, Deputy County Attorney, Helena, Montana 

Filed: 

Submitted on Briefs: November 1, 1990 

Decided: December 31, 1990 
Justice Diane G. Barz delivered the Opinion of the Court. 

Cleland appeals a jury decision of the District Court of the 

First Judicial District, Lewis and Clark County, finding him guilty 

of two felonies, theft and intimidation. We affirm. 

Cleland presents two issues: 

1. Was Clelandls conviction of intimidation invalid because 

the State failed to show the constitutionally required elements of 

5 45-5-203 (1) (c) , MCA? 

2. Should Clelandls conviction be reversed because he was not 

represented by competent counsel? 

I 

Late in the evening of June 25, 1989, an imported French 

saxophone belonging to Joe Thompson, a teacher and part-time 

musician, was stolen from the Eagles building in Helena, Montana. 

The saxophone case and accessories, including microphones, were 

also taken. Thompson valued the saxophone, a rare model no longer 

manufactured, at $10,000 to $12,000. A local newspaper reported 

the theft, and Thompson placed an advertisement offering a reward 

and listing his telephone number. 

On June 28, 1989, Thompson received a telephone call from a 

man who said that he had found the saxophone. Thompson offered the 

caller $250 for its return, but the caller wanted $1,500. Thompson 

told the man that he thought that he might be able to raise $500, 

and the caller promised to phone the following evening, requesting 

Thompson not to notify police. 

2 
However, Thompson reported the call to police who arranged for 

a trap, enabling the telephone company to quickly trace any 

incoming calls, to be placed on Thompson's phone. The police 

officers also arranged for calls to be tape-recorded. On the 

evening of June 29 Thompson received a second call. The caller 

threatened to destroy the saxophone if Thompson did not pay $500 

or if the police became involved. He instructed Thompson to meet 

him near Vigilante Stadium and Helena Middle School. 

While the call was in progress, the telephone company traced 

it to a pay phone on the corner of Montana Avenue and Prospect 

Avenue in Helena. An officer drove to the location and observed 

a man in red shorts and a white t-shirt using the telephone. The 

officer then drove to the stadium to monitor the electronic 

transmitter Thompson was given to wear during the exchange. At the 

stadium Cleland, dressed in red shorts and a white t-shirt, 

approached Thompson's truck from some bushes carrying the saxophone 

case and wearing a sock on his hand. Cleland climbed into 

Thompson's truck, gave Thompson the saxophone case containing the 

saxophone, and took the money. As Cleland was counting the money, 

the officer came up to the truck and placed Cleland under arrest. 

Subsequently, on two separate occasions, a police officer went 

to the apartment where Cleland had been living and obtained consent 

from a woman who was just moving into the apartment to search the 

premises. The officer recovered some of the missing microphones 

and a piece of Thompson's saxophone wrapped in a sock matching the 

one Cleland had on his hand when he was arrested. At trial 
Clelandls counsel objected to the searches on the ground that the 

officer had not ascertained whether the woman who agreed to the 

search had authority to consent since she was just moving into the 

apartment. 

Witnesses placed Cleland at the Eagles during the evening of 

June 25. One witness testified that Cleland left after the band 

quit playing and that he later saw Cleland at his mother's house 

nearby with a large object in his hands. 

The jury delivered a guilty verdict from which Cleland 

appeals. 

Was Clelandls conviction of intimidation invalid because the 

State failed to show the constitutionally required elements of 5 

45-5-203 (1) (c) , MCA? 

Cleland contends that his conviction is invalid because the 

State failed to establish the constitutional requirement of 

circumstances which reasonably tended to produce a fear that his 

threat would be carried out. Cleland was convicted of 

intimidation, a felony, pursuant to 5 45-5-203(1)(c), MCA. 

An earlier version of this statute was declared 

unconstitutional by the Ninth Circuit Court of Appeals in Wurtz v. 

Risley (9th Cir. 1983), 719 F.2d 1438, on the ground that the 

statute was overbroad and impermissibly impinged upon First 

Amendment expression. The Court of Appeals found that the statute 

regulated pure speech, rather than conduct, and stated: 
It is true that threats have traditionally been 

punishable without violation of the first amendment, but 

implicit in the nature of such punishable threats is a 

reasonable tendency to produce in the victim a fear that 

the threat will be carried out. (Citations omitted.) 

Section 203(l)(c) is not so limited. It is possible by 

judicial construction to read an element of instilling 

fear into the term 'threat,' id., but the Supreme Court 

of Montana has imposed no such narrowing construction 

upon section 203(1)(c). "[A] statute . . . which makes 

criminal a form of pure speech, must be interpreted with 

the commands of the First Amendment clearly in mind." 

Wurtz, 719 F. 2d at 1441 (quoting Watts v. United States (1969), 394 

U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664, 667 (per 

curiam)). The Wurtz Court also questioned the type of criminal 

conduct threatened, which at that time was "any criminal offense," 

declaring that it should not be a felony to threaten minor 

infractions. 

In 1985 the Montana Legislature amended the statute to conform 

to the requirements of Wurtz by adding the phrase, ''under 

circumstances which reasonably tend to produce a fear that it will 

be carried out1' and by changing "commit any criminal offense1' of 

the former version to "commit any felony." The current statute 

under which Cleland was convicted reads: 

A person commits the offense of intimidation when, 

with the purpose to cause another to perform or to omit 

the performance of any act, he communicates to another, 

under circumstances which reasonably tend to produce a 

fear that it will be carried out, a threat to perform 

without lawful authority any of the following acts: 

(c) commit any felony. 

Section 45-5-203 (1) (c) , MCA. 

Since the federal court's decision in Wurtz, we have examined 
this same statutory provision, 5 45-5-203 (1) (c) , MCA, and other 

portions of the intimidation statute. See State v. Hembd (1989), 

235 Mont. 361, 767 P.2d 864; State v. Lance (1986), 222 Mont. 92, 

721 P.2d 1258; State v. Ferrel (1984), 208 Mont. 456, 679 P.2d 246. 

In Ferrel, we reversed a conviction of intimidation pursuant to 5 

45-5-203(l) (c), MCA, on the ground that the defendant's verbal 

threat that she would keep proceeds of a check belonging to her 

employer until he had paid her the value of a garden that she had 

planted did not reasonably tend to produce fear in the victim that 

the threat would be carried out. Based on the Court of Appeals 

decision in Wurtz, the defendant was not guilty of conduct which 

could be constitutionally punished. Ferrel, 208 Mont. at 461-62, 

679 P.2d at 227-28. 

In Lance we found constitutional subsection (b) of 5 45-5- 

203 (I), MCA, which prohibits threats to subject persons to physical 

confinement or restraint. The defendant had written letters to 

various public officials and others threatening to take a hostage 

for the purpose of focusing public attention on his divorce 

settlement. Using a test enunciated in recent United States 

Supreme Court decisions that '''a law should not be invalidated for 

overbreadth unless it reaches a substantial number of impermissible 

 application^,^^^ rather than the test applied in Wurtz, we found no 

First Amendment violation. Lance, 222 Mont. at 100-102, 721 P.2d 

at 1264-65 (citing New York v. Ferber (1982), 458 U.S. 747, 771, 

102 S.Ct. 3348, 3362, 73 L.Ed.2d 1113, 1132). The United States 

Supreme Court has recently reaffirmed its reliance on the "real and 
~ubstantial~~ test for First Amendment overbreadth issues in Osborne 

v. Ohio (1990), - U.S. -, 110 S.Ct. 1691, 1697, 109 L.Ed.2d 98, 

111. In Lance we held that, as applied to the defendant, the 

statute was constitutional even though the threats constituted pure 

speech without any requirement of an overt act. Lance, 222 Mont. 

In the case under consideration, we find that circumstances 

reasonably tended to produce a fear that Cleland's threats would 

be carried out. At trial the jury heard the taped conversation 

between Thompson and Cleland and had a typed transcript of the 

conversation to follow as they listened to the tape. Cleland 

states on the tape: 

And there better be no kind of cops, no f detectives, 

no unmarked cars, nobody else f come around 'cuz if 

you do that hey you might as well forget the whole f 

thing man I'm gonna smash it up so nobody knows what 

happened to it and where it's gone, do you hear me? 

Cleland later repeats his threat: 

I said two thousand last night and I agreed with you for 

five hundred dollars, now you' re f putting me off and 

you ask me a bunch of questions. I don't know if you're 

getting me set up or not. Hey m you get me set 

up right now you know what . . . you lost every f 

thing 'cuz I don't have it with me I'm making a run. 

At another point Cleland said: 

Like I say I '11 show you the part I 've taken out of there 

you ain' t gonna see me m . I don't want you looking 

at me and I don't want you saying asking me who I am. 

If you try to f- swing on me and f- me up m I hey 

you're gonna lose it hear me? 

During the course of the conversation, Cleland makes several other 

similar threats. Cleland also reveals on the tape that he 
understood the value of the saxophone to Thompson, which he had 

read about in the newspaper. 

Cleland threatened Thompson with felony criminal mischief 

which consists of purposely or knowingly damaging or destroying 

without consent property of another exceeding $300 in value. 

Section 45-6-101, MCA. As we stated in Lance, "'[wlhat is a threat 

must be distinguished from what is constitutionally protected 

speech.'I1 Lance, 222 Mont. at 104, 721 P.2d at 1266 (quoting 

Watts, 394 U.S. at 707, 89 S.Ct. at 1401, 22 L.Ed.2d at 667). 

Threats made in jest or political hyperbole are not punishable 

under the statute. [C] austic, abusive, and robust speech is 

fully protected until it rises to the level of threats which cause 

harm to society." Lance, 222 Mont. at 105, 721 P.2d at 1267. The 

question of whether an intention to commit a felony is present must 

be decided on the basis of an objective standard, and "whether a 

statement constitutes a true threat is to be determined by the 

trier of fact." Lance, 222 Mont. at 104, 721 P.2d at 1267 (citing 

United States v. Kelner (2d Cir. 1976), 534 F.2d 1020 and United 

States v. Merrill (9th Cir. 1984), 746 F.2d 458). 

The language on the tape made it clear what Cleland intended. 

We find that the circumstances under which Cleland voiced his 

threats to Thompson--his demand for more money, his possession of 

the saxophone which made his threats to destroy or otherwise 

dispose of the instrument plausible, and his forceful manner-- 

reasonably tended to produce a fear that the threats would be 

carried out. We hold that Clelandls conviction pursuant to § 45- 
5-203 (1) (c) , MCA, does not violate constitutional principles of 

free speech. 

Should Clelandls conviction be reversed because he was not 

represented by competent counsel? 

Cleland claims that he was deprived of his Sixth Amendment 

right to counsel because his appointed lawyer did not adequately 

defend him. Specifically, he alleges the following: (1) his 

counsel did not raise the issue of the constitutionality of the 

intimidation statute as applied to him; (2) his counsel failed to 

file a pre-trial motion to suppress the evidence obtained in the 

searches of the apartment; and (3) Cleland was requested to sign 

a letter prepared by counsel "trying to force his client to accept 

a plea bargain and to basically exonerate counsel for Cleland with 

regard to his representation." 

In evaluating whether defendant received competent assistance 

of counsel, we apply the two-part test enunciated in the seminal 

case of Strickland v. Washington (1984), 466 U.S. 668, 104 s.ct. 

First, the defendant must show that counsel's performance 

was deficient. This requires showing that counsel made 

errors so serious that counsel was not functioning as the 

"counsel1' guaranteed the defendant by the Sixth 

Amendment. Second, the defendant must show that the 

deficient performance prejudiced the defense. This 

requires showing that counsel's errors were so serious 

as to deprive the defendant of a fair trial, a trial 

whose result is reliable. 

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; 
see State v. Johnstone (Mont. 1990), 798 P.2d 978, 987, 47 St.Rep. 

1715, 1726; State v. Albrecht (Mont. 1990), 791 P.2d 760, 764, 47 

St.Rep. 805-806. As is evident, the burden is heavy on one who 

seeks to reverse a judgment on the basis of ineffective assistance 

of counsel. State v. LaValley (1983), 203 Mont. 393, 398, 661 P.2d 

869, 872. [Tlhe proper standard for attorney performance is that 

of reasonably effective assistance." Strickland, 466 U.S. at 687, 

104 S.Ct. at 2064, 80 L.Ed.2d at 693. Reasonably effective 

assistance does not mean that the defendant is guaranteed an 

acquittal. The defendant must show that the errors allegedly 

committed stem from neglect or ignorance, rather than informed 

professional judgment. State v. Robbins (1985) , 218 Mont. 107, 

113, 708 P.2d 227, 231. Moreover, "any alleged error by defense 

counsel must be shown to prejudice the defendant before reversal 

will be warranted." State v. Hurlbert (1988), 232 Mont. 115, 120, 

756 P. 2d 1110, 1113. With these guidelines in mind, we examine 

Clelandls allegations. 

First, Cleland claims that his appointed attorney failed to 

challenge, on constitutional grounds, sufficiency of the evidence 

in regard to the charge of intimidation. As addressed above, we 

find no merit to Cleland's constitutional claim. His appointed 

lawyer's failure to bring it to the attention of the trial court 

did not prejudice Cleland nor deprive him of a fair trial. 

Secondly, Cleland alleges that his appointed counsel failed 

to file a pre-trial motion to suppress the evidence obtained from 

the apartments. Cleland correctly asserts that a motion to 
suppress evidence I1shall be made before the trial unless for good 

cause shown the court shall otherwise direct." Section 46-13-301, 

MCA. While Clelandts appointed counsel did not file a written 

motion, he raised the issue orally prior to trial, and the court 

gave permission to bring a motion at trial when the State moved to 

offer the items seized during the search into evidence. During the 

trial, Clelandls appointed counsel objected to the admission of the 

seized items into evidence on the ground that the person who 

consented to the searches had no authority to grant permission. 

The court overruled the objection after hearing the officer's 

testimony that he had ascertained the consenting person's occupancy 

of the apartment before he obtained written consent. 

While we agree that Clelandls appointed attorney should have 

filed a pre-trial motion to suppress the evidence within the time 

limits required by § 46-13-301, MCA, we do not find that the result 

of the trial would have been changed. Cleland asserts that if the 

issue had been properly raised before trial, it is Mconceivablell 

that the District Court would have suppressed the evidence, and 

"Cleland could have legitimately argued that he had found the 

saxophone," rather than have stolen it. Thus, Cleland could have 

raised a reasonable doubt of whether he was guilty of theft. 

Whether a party other than the defendant may consent to a 

warrantless search has been addressed previously in State v. 

Sorenson (1979), 180 Mont. 269, 590 P.2d 136. In holding that the 

mother of the defendant, who was caring for houseplants and animals 

of a vacationing neighbor, had no authority to allow a warrantless 
search of the neighbor's residence, we relied upon United States 

v. Matlock (1973), 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242. In 

Matlock, the United States Supreme Court recognized the rule that 

the prosecution "may show that permission to search was obtained 

from a third party who possessed common authority over . . . the 

premises or effects sought to be inspected. Matlock, 415 U.S. at 

171, 94 S.Ct. at 993, 39 L.Ed.2d at 250. The Supreme Court further 

noted that common authority is not premised on property law: 

[Authority to consent] rests rather on mutual use of the 

property by persons generally having joint access or 

control for most purposes, so that it is reasonable to 

recognize that any of the co-inhabitants has the right 

to permit the inspection in his own right and that the 

others have assumed the risk that one of their number 

might permit the common area to be searched. 

Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at 993, 39 L.Ed.2d at 250. 

The Supreme Court has recently extended the Matlock holding by 

ruling that a warrantless search is valid when based upon the 

consent of a third party whom the police, at the time of entry, 

reasonably, though erroneously, believed to have authority to 

consent. Illinois v. Rodriguez (1990), U. S. I 110 S.Ct. 

The likelihood is small that the District Court would have 

suppressed the evidence obtained in the searches if a pre-trial 

suppression hearing had been held. Cleland's suppositions that 

obtaining a pre-trial suppression hearing would change the outcome 

of the trial are groundless. 

Finally, Cleland claims that a letter his appointed counsel 

asked him to sign was an effort to force him to accept a plea 
bargain and to exonerate him from liability for his representation 

of Cleland, in violation of Rule 1.8(h) of the Rules of 

Professional Conduct, which provides in part: 

A lawyer shall not make an agreement prospectively 

limiting the lawyer's liability to a client for 

malpractice unless permitted by law and the client is 

independently represented inmaking the agreement . . . . 

Cleland further contends that his refusal to sign the letter 

prompted his counsel to provide an inadequate defense. The State 

responds that the letter is not part of the record and should not 

be considered on appeal. "Allegations of ineffective assistance 

of counsel must be grounded on facts which appear in or are easily 

deduced from the record and which go beyond mere conclusory 

allegations.I1 State v. Tome (1987), 228 Mont. 398, 403, 742 P.2d 

479, 482. Cleland claims that matters relating to the Rules of 

Professional Conduct come within the scope of the Supreme Court's 

original jurisdiction ''since it pertains to the conduct of an 

attorney and this Court always governs the conduct of attorneys 

within the State of Montana." 

While the Supreme Court has exclusive authority over the 

admission of attorneys to the bar and regulation of attorneys 

within Montana, Kradolfer v. Smith (Mont. 1990), - P.2d , 47 

St-Rep. 1861, 1863; Harlen v. City of Helena (1984), 208 Mont. 45, 

49-50, 676 P.2d 191, 193, this action is not a disciplinary 

proceeding in which violation of the Rules of Professional Conduct 

is at issue. Clelandls allegation that his refusal to sign the 

letter led to neglect by his appointed counsel is without 

foundation in the record. 

13 
Viewed in their entirety, Clelandls allegations of inadequate 

representation by his appointed counsel do not reach constitutional 

magnitude. Cleland s appointed counsel had not "made errors so 

serious that counsel was not functioning as the lcounsell 

guaranteed by the Sixth Amendment." We hold that Cleland was not 

deprived of a fair trial due to ineffective assistance of counsel. 

Affirmed. 

/- 

We concur: