Adams v. State

• Decision Date: 13 February 2007
• Docket Number: No. 05-610.,05-610.
• Citation: 153 P.3d 601,336 Mont. 63,2007 MT 35
• Court: Montana Supreme Court
• Parties: Larry Dewayne ADAMS, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.

153 P.3d 601

2007 MT 35

336 Mont. 63

Larry Dewayne ADAMS, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.

No. 05-610.

Supreme Court of Montana.

Submitted on Briefs November 22, 2006.

Decided February 13, 2007.

For Appellant: Sasha K. Brownlee, Brownlee Law Office PLLC, Hamilton, Montana.

For Respondent: Mike McGrath, Attorney General; Pamela P. Collins, Assistant Attorney General, Helena, Montana, George Corn, County Attorney, Hamilton, Montana.

Justice W. WILLIAM LEAPHARTdelivered the Opinion of the Court.

¶ 1 Larry DeWayne Adams appeals from the Twenty-First Judicial District Court's denial of his amended petition for postconviction relief. We affirm.

¶ 2 Adams raises the following issues on appeal:

¶ 3 1. Did the District Court err in denying Adams' amended petition for postconviction relief alleging Adams received ineffective assistance of counsel when his attorneys failed to file a motion to dismiss for lack of speedy trial?

¶ 4 2. Did the District Court err in denying Adams' amended petition for postconviction relief alleging Adams received ineffective assistance of counsel when his attorney failed to object to a jury instruction on aggravated assault as a lesser included offense of the attempted deliberate homicide charge?

¶ 5 3. Did the District Court err in denying Adams' amended petition for postconviction relief alleging Adams received ineffective assistance of counsel when his attorney failed to move for a directed verdict regarding aggravated assault?

¶ 6 4. Did the District Court legally sentence Adams when it imposed a ten-year weapon enhancement?

BACKGROUND

¶ 7 On October 2, 1998, the State charged Adams by information with attempted deliberate homicide, obscuring the identity of a machine, possession of a switchblade knife, criminal possession of dangerous drugs, and criminal possession of drug paraphernalia. The information included a notice that, pursuant to § 46-18-221, MCA (1997), Adams could receive an enhanced sentence for the attempted deliberate homicide offense because he used a weapon in the commission of the offense.

¶ 8 Adams was tried by a jury on September 20 and 21, 1999. The jury found Adams guilty of aggravated assault, a lesser included offense of attempted deliberate homicide, not guilty of obscuring the identity of a machine, guilty of possession of a switchblade knife, guilty of criminal possession of dangerous drugs, and guilty of criminal possession of drug paraphernalia.

¶ 9 Adams' charges arose out of an altercation between Adams and his girlfriend, Jackie Wright, on September 14, 1998. Early that morning, Adams returned to the home he and Wright shared in Victor, Montana, after several hours of drinking at a nearby bar. Adams and Wright started to argue. Adams began throwing things, including loose change, boots, lamps, and a coffee table. He picked up a .9 millimeter pistol and started waving it around, then fired it into the wall a couple feet to Wright's left and a few inches above her head. He then knelt down in front of Wright, yelled at her, and put the gun to her chest. Wright looked Adams in the face, thinking he was going to kill her. She heard the gun click, then saw a look of surprise on Adams' face, as if he was shocked the gun did not fire.

¶ 10 After the gun failed to fire, Adams went down a hallway then came back without the gun. According to Wright, he then threw another lamp toward her. She picked up the lamp and tried to defend herself with it as Adams came at her. Adams grabbed Wright and started hitting her on the head and chest with his fists. They fell to the floor and Adams straddled her, grabbing her hair and hitting her head on the floor. Wright looked up and saw Adams with the coffee table over his head as he brought it down on her. She put up her left arm to protect herself, but was hit on the head with the table. She felt herself losing consciousness and realized that she had wet herself. She came around when she felt warmth on her neck. Adams was walking down the hall again and Wright thought he was going to retrieve the gun. She got up and ran out of the house toward the neighbor's house. She got to the neighbor's door and saw Adams following her. She started slamming the screen door to try to wake up the neighbors. She then tried the door knob, found it was unlocked, and entered the house and locked the door behind her.

¶ 11 The neighbors in the house testified they woke up to the sound of Wright slamming the screen door. They found Wright in their living room. She was telling them to help her, her boyfriend was trying to kill her. The neighbors called the police and tried to calm Wright down. She refused to sit on their furniture because she had lost control of her bladder. The neighbors said she appeared to have been beaten and her ear was bleeding.

¶ 12 After law enforcement arrived and secured the area, Wright was transported to the hospital by ambulance. The emergency room doctor stitched up a tear in her ear and admitted her to the hospital overnight to observe her because of her head injury. The doctor diagnosed Wright as having a concussion, which meant that Wright had either been knocked unconscious or hit hard enough on the head to be dazed. Wright also had a laceration of her ear and multiple contusions and abrasions. The doctor testified Wright's injuries were consistent with being beaten by a fist and hit by the edge of a table. Wright testified that as a result of the incident, she had pain in her ribs that lasted for about six months, and still bothered her when driving long distances. She also testified that the pain in her head from the concussion lasted for a month or two.

¶ 13 Adams testified on his own behalf at trial, asserting that the gun was sitting on the kitchen counter, already cocked. When he picked it up to unload it, Wright started to grab for it, and it went off and hit the wall. He said he then ejected the magazine and threw the gun and the magazine against the wall. He said Wright then started to swing at him, so he laid her on the floor and she pulled her earring out of her own ear. When he went to get her a washcloth from the bathroom down the hall, Wright ran out the door and down the driveway toward the neighbors' house. He ran after her because he did not want her to make a fool of herself in the little red and black, lacy, waist-length nighty he said she was wearing that night. He testified that when he saw her banging the neighbors' screen door against her own head, he gave up and went home and went to bed.

¶ 14 Law enforcement officers testified that when they searched the home later, they found the gun laying against a wall with the magazine still in it. They also testified that Wright was wearing a white nightshirt when they found her at the neighbors' house, and it was stained yellow on the bottom. At Adams' house, the officers found the coffee table upright in the middle of the living room with Adams' wallet lying on it. They saw several lamps had been broken. They also saw a bullet hole in the wall. They recovered a bullet casing in the living room and a fired .9 millimeter bullet in a hall closet.

¶ 15 Adams' defense counsel hired a ballistics expert that testified that the gun did not fire every time the trigger was pulled, and that it was not predictable when it would or would not fire. The expert testified that in order for Wright to hear a clicking sound coming from the gun, one of two things would have happened: either the trigger was pulled and the hammer fell, causing a round to fire, or the trigger was pulled and the hammer fell, and the gun did not fire, but in that case, the round in the chamber would be marked. He said the round found in the chamber that night was not marked. He also stated, however, that when the trigger of that particular gun is pulled quickly, the hammer does not fall, and thus the round is not marked, but it can make a mechanical noise that might sound like a click.

¶ 16 On December 1, 1999, the District Court sentenced Adams to twenty years in the Montana State Prison for the aggravated assault conviction, five years for the criminal possession of dangerous drugs conviction, six months for the possession of a switchblade knife conviction, and six months for the possession of drug paraphernalia conviction, all to run consecutively. Pursuant to § 46-18-221, MCA (1997), the court sentenced Adams to an additional ten years in prison for using a dangerous weapon during the commission of the aggravated assault. Following sentencing, Adams' attorney withdrew as counsel and told Adams he needed to contact the public appellate defenders' office if he wanted to pursue an appeal.

¶ 17 On October 16, 2000, Adams, acting pro se, filed a petition for postconviction relief in the District Court. His petition alleged ineffective assistance of his original attorney to file a motion to dismiss for lack of a speedy trial. He also alleged ineffective assistance of his subsequently appointed trial attorney for offering a lesser included offense instruction on aggravated assault, and for failing to file an appeal to this Court following Adams' convictions. Finally, Adams' petition alleged that the District Court imposed the sentence enhancement for use of a dangerous weapon in violation of his constitutional rights. The District Court denied Adams' petition for postconviction relief and Adams appealed to this Court. On September 5, 2002, in State v. Adams, 2002 MT 202, 311 Mont. 202, 54 P.3d 50, this Court reversed the District Court, finding that Adams was denied effective assistance of counsel when his trial attorney withdrew following trial and failed to file an appeal to this Court. We stated that Adams could file an amended petition for postconviction relief and raise: (1) those issues that could have been raised in direct appeal but for counsel's abandonment of his appeal; and (2) those issues properly raised in a ...