Whitlow v. State

Decision Date22 April 2008
Docket NumberNo. 05-128.,05-128.
Citation343 Mont. 90,183 P.3d 861,2008 MT 140
PartiesKenneth Leroy WHITLOW, Petitioner and Appellant, v. STATE of Montana, Respondent and Appellee.
CourtMontana Supreme Court

For Appellant: Jeffrey T. Renz, Attorney at Law, Jason Lazark, Intern, Criminal Defense Clinic, University of Montana School of Law, Missoula, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Kenneth Leroy Whitlow appeals from the order of the District Court for the Twenty-First Judicial District, Ravalli County, denying his petition for postconviction relief. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 On August 18, 1993, the State charged Whitlow, by Information, with one felony count of aggravated kidnapping, in violation of § 45-5-303, MCA, and one felony count of sexual intercourse without consent, in violation of § 45-5-503, MCA. These charges stemmed from the July 8, 1993 kidnapping of a six-year-old girl in Pinesdale, Montana. Additional facts underlying these charges, but not pertinent to the instant appeal, are set out in State v. Whitlow, 285 Mont. 430, 949 P.2d 239 (1997) ("Whitlow I"). The matter proceeded to trial on January 24, 1994, lasting six days, and the jury found Whitlow guilty on both counts. The District Court sentenced Whitlow to forty years on the count of sexual intercourse without consent, ten years on the count of aggravated kidnapping, ten years under § 46-18-221, MCA, for the use of a weapon in the commission of an offense, and an additional sixty years on the aggravated kidnapping sentence after finding Whitlow to be a persistent felony offender. Whitlow filed a direct appeal to this Court raising several issues. We denied Whitlow's claims and affirmed his conviction in Whitlow I.

¶ 3 Subsequently, Whitlow filed a petition for postconviction relief with the District Court on March 17, 1999. Whitlow asserted that his trial counsel, James G. Shockley, had failed during voir dire to determine whether two jurors, J.B. and E.F., were biased against Whitlow. Whitlow claimed that J.B. and E.F. demonstrated bias against him based on answers they gave to the prosecutor's voir dire questions and that Shockley, therefore, should have asked them follow-up questions. Whitlow argued that Shockley rendered ineffective assistance of counsel by failing to investigate this bias. In support of Whitlow's petition, Shockley provided an affidavit which stated, in pertinent part:

3. I can recall no particular tactical reason for not questioning Jurors ... [J.B.], or [E.F.] about the matters referred to in Mr. Whitlow's Petition and cannot recall anyway that this failure was part of my trial strategy.

4. I also do not recall exercising any particular tactical decision when I did not excuse any of these [two] jurors for cause or exercise peremptory challenges in order to excuse them from the trial jury. At the time I obviously thought that they were not biased, but after reading the draft of the Memorandum of the Petitioner it appears that I should have asked more questions.

5. I do remember tactical reasons for seating some jurors, but the aforementioned jurors are not among them.

¶ 4 The State filed a motion to dismiss, arguing that Whitlow's petition was barred under § 46-21-105(2), MCA, as Whitlow could have raised his claims on direct appeal. The District Court granted the State's motion, and we reversed. See State v. Whitlow, 2001 MT 208, 306 Mont. 339, 33 P.3d 877 ("Whitlow II"). We held that Whitlow's ineffective assistance of counsel claim "could not have reasonably been raised on direct appeal because his allegations of ineffectiveness cannot be documented from the record in the underlying case." Whitlow II, ¶ 22. We observed that "in order to establish that his trial counsel's decision not to question or challenge prospective jurors was not the product of sound trial strategy, Whitlow would have to go beyond the trial record." Whitlow II, ¶ 21. Accordingly, we remanded Whitlow's ineffective assistance of counsel claim.

¶ 5 On May 9, 2002, the District Court held an evidentiary hearing on Whitlow's ineffective assistance of counsel claim. Shockley was the only witness called. The parties also introduced a number of exhibits at the hearing, including Shockley's voir dire notes, Shockley's billing records for the case, Shockley's affidavit in support of Whitlow's postconviction relief petition, and several letters from Shockley addressed to various persons discussing possible grounds for relief on direct appeal and in postconviction proceedings.1 After receiving post-hearing briefing from both parties, the District Court issued its Opinion and Order on December 30, 2004, denying Whitlow's petition for postconviction relief. The court concluded that Whitlow had failed to establish that Shockley's conduct during voir dire fell below an objective standard of reasonableness in regard to jurors J.B. and E.F. Accordingly, the court denied his petition. This appeal followed.

¶ 6 Further facts are set forth below where relevant.

ISSUES

¶ 7 The issues on appeal are as follows:

1. Did Shockley render ineffective assistance of counsel during jury selection by failing to ask follow-up questions of J.B. and E.F.?

2. Does an error by defense counsel during jury selection concerning the impartiality of a juror constitute structural error?

¶ 8 Because we conclude that Issue 1 is dispositive, we do not address Issue 2.

STANDARD OF REVIEW

¶ 9 This Court reviews a district court's denial of a postconviction relief petition to determine whether the district court's findings of fact are clearly erroneous and whether its conclusions of law are correct. Hartinger v. State, 2007 MT 141, ¶ 19, 337 Mont. 432, ¶ 19, 162 P.3d 95, ¶ 19. Ineffective assistance of counsel claims, however, constitute mixed questions of law and fact for which our review is de novo. State v. Racz, 2007 MT 244, ¶ 13, 339 Mont. 218, ¶ 13, 168 P.3d 685, ¶ 13.

DISCUSSION

¶ 10 The right to counsel in criminal prosecutions is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article II, Section 24 of the Montana Constitution. In order to analyze ineffective assistance of counsel claims, we have adopted the two-part test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

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 "counsel" 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. In short, a defendant must prove (1) that counsel's performance was deficient, and (2) that counsel's deficient performance prejudiced the defense. Racz, ¶ 22.

¶ 11 A defendant must satisfy both prongs of this test in order to prevail on an ineffective assistance of counsel claim. Adams v. State, 2007 MT 35, ¶ 22, 336 Mont. 63, ¶ 22, 153 P.3d 601, ¶ 22. Thus, if an insufficient showing is made regarding one prong of the test, there is no need to address the other prong. Adams, ¶ 22; see also Strickland, 466 U.S. at 697, 104 S.Ct. at 2069 ("[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one."). In the case at hand, we conclude that Whitlow has made an insufficient showing on the first prong (the performance inquiry); thus, that prong is dispositive and renders an inquiry into the question of prejudice unnecessary.

¶ 12 Before addressing the merits of the parties' arguments, it is necessary, as a preliminary matter, to clarify the proper standard for evaluating defense counsel's performance. Whitlow suggests that we must determine whether defense counsel acted out of ignorance or neglect. See e.g. State v. Hendricks, 2003 MT 223, ¶ 7, 317 Mont. 177, ¶ 7, 75 P.3d 1268, ¶ 7 ("In order to constitute ineffective assistance, counsel's conduct must flow from ignorance or neglect rather than from strategic decisions and trial tactics."); see also Bone v. State, 284 Mont. 293, 303, 944 P.2d 734, 740 (1997) ("Nonstrategic decisions ... that stem from neglect or ignorance, are accorded no deference.") (alteration, citation, and internal quotation marks omitted). The State, on the other hand, suggests that we must determine whether counsel's performance was objectively reasonable. See e.g. State v. St. Germain, 2007 MT 28, ¶ 33, 336 Mont. 17, ¶ 33, 153 P.3d 591, ¶ 33 ("The defendant bears the burden to show that his counsel's performance fell below an objective standard of reasonableness."). The District Court applied this latter standard. For the reasons which follow, we agree with the State that the proper measure of counsel's performance is objective reasonableness.

¶ 13 We first articulated the "ignorance or neglect" test in State v. Morigeau, 202 Mont. 36, 656 P.2d 185 (1982), stating that "[t]o sustain a claim of ineffective assistance, a criminal defendant must show that the error allegedly committed by his lawyer resulted in prejudice to him and stemmed from neglect or ignorance rather than from informed, professional deliberation." Morigeau, 202 Mont. at 44, 656 P.2d at 189 (italics omitted) (citing United States v. Bosch, 584 F.2d 1113, 1121 (1st Cir.1978), in turn citing Marzullo v. Maryland, 561 F.2d 540, 544 (4th Cir.1977)); accord State v. Hall, 203 Mont. 528, 539, 662 P.2d 1306, 1311 (1983); ...

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