State v. Turnsplenty, 01-897.

Decision Date03 June 2003
Docket NumberNo. 01-897.,01-897.
PartiesSTATE of Montana, Plaintiff and Respondent, v. Dan TURNSPLENTY, Defendant and Appellant.
CourtMontana Supreme Court

Gary E. Wilcox, Attorney at Law, Billings, Montana, for Appellant.

Honorable Mike McGrath, Attorney General; John Paulson, Assistant Attorney General, Helena Montana, Dennis Paxinos, County Attorney; Ed Zink, Deputy County Attorney, Billings, Montana, for Respondent.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Dan Turnsplenty (Turnsplenty) appeals from his conviction of driving under the influence of alcohol following a jury trial in the Thirteenth Judicial District Court, Yellowstone County, on October 25, 2001. We affirm.

¶ 2 Turnsplenty raises the following issue on appeal: whether Turnsplenty's trial counsel provided ineffective assistance of counsel during voir dire.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 At 10:00 p.m., on January 11, 2001, Officer Jamie Schillinger (Schillinger) was patrolling on Jackson Street in Billings, Montana, when he observed a vehicle turning onto the street in front of him. The vehicle was being driven in an erratic manner, making quick darting maneuvers as it proceeded. The vehicle's rear license plate light was not illuminated as required by law. At the next intersection, Schillinger observed the vehicle quickly accelerate when the traffic light turned green, and then initiate a left turn onto State Street, following behind another vehicle. Schillinger observed the leading vehicle properly turn and enter the closest lane of State Street, but that the suspect vehicle "quickly shot around that car without using a turn signal and went all the way over to the wrong lane of traffic." Schillinger activated the lights on his patrol vehicle to initiate a traffic stop. In response, the suspect vehicle turned onto Third Avenue South and pulled over. The vehicle was driven by Turnsplenty.

¶ 4 Speaking with Turnsplenty, Schillinger noticed a strong odor of alcohol coming from inside the vehicle and on Turnsplenty's breath, and that Turnsplenty's eyes were bloodshot and glassy. Following an investigation at the scene, including field sobriety tests, Turnsplenty was placed in custody and transported to the Yellowstone County Detention Facility. He was charged by information with driving under the influence of alcohol. ¶ 5 On May 21, 2001, Turnsplenty went to trial before a jury on the charge. During voir dire, a question and answer exchange between defense counsel and panelist Boyer included the following:

Counsel: So do you believe that [Native Americans] have a lower tolerance for alcohol?
Mr. Boyer: I don't know if they have a lower tolerance. I know it seems like they have a great deal of consumption of it.
Counsel: So we probably encounter more DUIs with Native Americans than with Caucasians?
Mr. Boyer: I would think the odds of that are pretty good.
....
Counsel: Because Daniel is a Native American and the charge, you've already indicated that you have great concerns about drinking, do you think you might have something of a predisposition in this case?
Mr. Boyer: I might.
Counsel: So do you think that it's do you think he's being arrested for being under the influence of alcohol, he's Native American, and in your experience do you think that he's guilty?
Mr. Boyer: I think I would go back, and the young man's going to have to state his case and prove his case.
Counsel: Okay.

¶ 6 Defense counsel did not follow up this exchange with any additional questions or an explanation of the State's burden of proof, and did not challenge Boyer for cause, but used a peremptory challenge to exclude Boyer from the panel.

¶ 7 Under questioning by the prosecutor, Panelist Deming stated that a member of his community had a son killed by a drunk driver which had "almost killed his mother," and that the family had not gotten over the devastation. Deming, whose brother-in-law had been a patrol officer, further indicated that he had seen too many DUIs and believed the law should be more strict, particularly on repeat offenders.

¶ 8 Panelist Miller told the prosecutor that she was familiar with the fatal accident referenced by Panelist Deming, as the individual killed therein was her friend and a classmate. Miller stated that she believed drinking and driving was wrong, and that the DUI law in Montana was not strict enough because she had heard of repeat offenders who were "getting away with it."

¶ 9 Panelist Waage related that his wife and daughter were involved in a vehicle accident caused by a drunk driver who "just plowed into them, and he didn't really take time to look," but that they were not hurt in the accident. Waage expressed frustration over the driver in that matter leaving the state, and although the driver paid the damages, Waage indicated that repeat offenders should be off the streets.

¶ 10 Defense counsel did not ask further questions of Panelists Deming and Miller about the fatal accident they had referenced, nor about their ability to be impartial. Similarly, Panelist Waage was not asked about his ability to judge the matter impartially. Defense counsel did not challenge Deming, Miller or Waage for cause, or exclude them by way of peremptory challenge, and all three of them served on the jury. Further, defense counsel did not voir dire the jury concerning burden of proof, presumption of innocence, and a defendant's right not to testify.

¶ 11 Turnsplenty was convicted by the jury. He appeals.

DISCUSSION

¶ 12 Did Turnsplenty's trial counsel provide ineffective assistance of counsel during voir dire?

¶ 13 Turnsplenty claims his counsel rendered ineffective assistance during voir dire by failing to correct Panelist Boyer's statement that Turnsplenty would have to "state his case and prove it;" by failing to ask follow-up questions of Panelists Deming, Miller and Waage about their possible bias, and for allowing them to serve on the jury; and by failing to conduct voir dire concerning basic criminal law concepts such as burden of proof and presumption of innocence. The State argues that Turnsplenty's ineffective assistance of counsel claim is not record based and that his conviction should be affirmed.

¶ 14 In considering ineffective assistance of counsel claims, this Court has adopted the two-pronged test set forth by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. St. John, 2001 MT 1, ¶ 37, 304 Mont. 47, ¶ 37, 15 P.3d 970, ¶ 37 (overruled on other grounds). Under the first prong, the defendant bears the burden of showing that counsel's performance was deficient or fell below an objective standard of reasonableness. St. John, ¶ 37. In so doing, the defendant must overcome a strong presumption that counsel's defense strategies and trial tactics fall within a wide range of reasonable and sound professional decisions. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; State v. Harris, 2001 MT 231, ¶ 18, 306 Mont. 525, ¶ 18, 36 P.3d 372, ¶ 18. The second prong requires the defendant to establish prejudice by demonstrating that there was a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Harris, ¶ 19. A defendant claiming ineffective assistance of counsel must ground his or her proof of facts within the record and not on conclusory allegations. St. John, ¶ 38.

¶ 15 Turnsplenty argues that the record adequately supports his claims of ineffective assistance, and that his counsel's errors are more egregious than those which occurred in State v. Chastain (1997), 285 Mont. 61, 947 P.2d 57. In Chastain, we considered defense counsel's failure to challenge for cause or to exercise a peremptory challenge to a juror who had indicated strong feelings unfavorable to Chastain. Reviewing the record on Chastain's appeal from his conviction, we concluded that, "where, as here, defense counsel abandons his client's right to challenge a juror for no apparent reason, error must be attributed to the lawyer." Chastain, 285 Mont. at 65, 947 P.2d at 60.

¶ 16 Recently, in State v. Herrman, 2003 MT 149, 316 Mont. 198, 70 P.3d 738, we revisited our holding in Chastain, and determined that "in Chastain, it was a mistake for the Court, based on the lack of a reason `apparent' on the record, to determine that counsel was ineffective in voir dire examination." Herrman, ¶ 28. Herrman involved a defense counsel's failure during voir dire to ask follow-up questions to panelists who had expressed reservations about being impartial, or to challenge them for cause. Herrman, ¶ 20. Concerning defense counsel's failure to challenge a panelist for cause, we held:

[I]t is a mistake to assume that we can determine from a cold record whether there was a tactical reason for not exercising a challenge. The reasons for counsel's actions or inactions should not be "assumed" but should be the subject of a postconviction evidentiary inquiry.
....
For the above-stated reasons, we overrule Chastain's holding that a claim of ineffective assistance of counsel for failure to challenge prospective jurors in voir dire can be determined from a record which is silent as to the lawyer's reasoning.

Herrman, ¶¶ 30, 33. We further concluded that none of Herrman's claims regarding his counsel's actions...

To continue reading

Request your trial
32 cases
  • State v. Dineen
    • United States
    • Montana Supreme Court
    • 4 Agosto 2020
    ...result of the proceeding would have been different." State v. Lehrkamp , 2017 MT 203, ¶ 26, 388 Mont. 295, 400 P.3d 697 (citing State v. Turnsplenty , 2003 MT 159, ¶ 14, 316 Mont. 275, 70 P.3d 1234 ). Given the defense theory at trial, Dineen therefore must show a reasonable probability tha......
  • State v. Godfrey
    • United States
    • Montana Supreme Court
    • 3 Marzo 2009
    ...a demonstration that, but for counsel's errors, there is a reasonable probability that the result would have been different. State v. Turnsplenty, 2003 MT 159, ¶ 14, 316 Mont. 275, 70 P.3d ¶ 15 Godfrey's petition alleges that on April 14, 2000, prior to trial and at the request of defense c......
  • State v. Vukasin
    • United States
    • Montana Supreme Court
    • 28 Agosto 2003
    ...at 65, 947 P.2d at 60. ¶ 42 In two recent cases, State v. Herrman, 2003 MT 149, 316 Mont. 198, 70 P.3d 738, and State v. Turnsplenty, 2003 MT 159, 316 Mont. 275, 70 P.3d 1234, we discussed our holding in Chastain, and determined that "in Chastain, it was a mistake for the Court, based on th......
  • State v. Kougl
    • United States
    • Montana Supreme Court
    • 8 Septiembre 2004
    ...must demonstrate that (1) "counsel's performance was deficient or fell below an objective standard of reasonableness," State v. Turnsplenty, 2003 MT 159, ¶ 14, 316 Mont. 275, ¶ 14, 70 P.3d 1234, ¶ 14 (citing State v. St. John, 2001 MT 1, ¶ 37, 304 Mont. 47, ¶ 37 15 P.3d 970, ¶ 37); and (2) ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT