Clausell v. State
| Citation | 106 P.3d 1175,2005 MT 33,326 Mont. 63 |
| Decision Date | 15 February 2005 |
| Docket Number | No. 04-175,04-175 |
| Parties | AMUIR SEKOU CLAUSELL, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Respondent. |
| Court | Montana Supreme Court |
For Appellant: Chad Wright, Appellate Defender Office, Helena, Montana.
For Respondent: Hon. Mike McGrath, Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, Montana. Dennis Paxinos, Yellowstone County Attorney, Billings, Montana.
¶ 1 Amuir Sekou Clausell (Clausell) appeals from the denial of his Petition for Postconviction Relief by the Thirteenth Judicial District Court, Yellowstone County. We affirm.
¶ 2 Clausell raises the following issues on appeal:
¶ 3 1. Whether the District Court erred in denying Clausell's Petition for Postconviction Relief based upon prosecutorial misconduct.
¶ 4 2. Whether the District Court erred in denying Clausell's Petition for Postconviction Relief based upon ineffective assistance of counsel.
¶ 5 Resolving this appeal requires a limited discussion of the facts, but for a complete background on this matter, see State v. Clausell, 2001 MT 62, 305 Mont. 1, 22 P.3d 1111,
where we affirmed Clausell's conviction of deliberate homicide. At approximately 3:00 a.m. on March 22, 1997, Clausell delivered Georgiana Trottier (Trottier) to the emergency room at Saint Vincent Hospital in Billings where she later died of a single gunshot wound to the head. Clausell stayed at the hospital while doctors treated Trottier and police officers eventually arrived and questioned him. Over the course of the early morning and during the ensuing investigation, Clausell recounted at least eight different stories about Trottier's shooting to hospital personnel, police officers, and two friends, all of whom testified at trial. Officers arrested Clausell later that morning and proceeded to investigate Clausell's apartment where the shooting took place.
¶ 6 Police officers first found several pieces of evidence outside Clausell's apartment, then knocked and announced their presence, but received no response. The police officers secured the exterior of the apartment and entered the apartment through the rear unlocked sliding glass door in order to look for other victims or suspects and to protect the safety of the officers. This warrantless "protective sweep" turned up Trottier's blood in various locations, including on Clausell's bed, bedding, floor and wall of the bedroom, as well as on the stairs and handrail. The police officers then sought a search warrant for Clausell's apartment.
¶ 7 While waiting for the search warrant, police officers discovered a .22 caliber pistol with one spent round in the chamber, wrapped in a towel, and located in a bucket immediately outside the back door to Clausell's apartment. Police officers searched Clausell's apartment once they secured the warrant and found . 22 caliber ammunition and a life insurance policy, held by Trottier, naming Clausell as the primary beneficiary.
¶ 8 The District Court appointed Kevin Gillen (Gillen) to defend Clausell. Gillen represented Clausell both at trial and on direct appeal. Clausell's trial defense rested on the claim that Trottier's death had been a "tragic accident." Gillen, Clausell, and a private investigator retained for this matter, jointly developed this "tragic accident" theory as it conformed both with the evidence and Clausell's eighth and final story about what happened. To support this theory, Gillen deemed it necessary to forego objecting to the State's introduction of evidence from the apartment in order to bolster their claim that Clausell was not "hiding anything." The jury convicted Clausell of deliberate homicide and the District Court sentenced him to 100 years in Montana State Prison with an additional 2 years for using a weapon.
¶ 9 Clausell, with new counsel, filed a Petition for Postconviction Relief (Petition) that focused on alleged prosecutorial misconduct at trial and ineffective assistance of counsel at trial and on direct appeal. The District Court denied all of Clausell's claims without a hearing, except Gillen's failure to suppress evidence from the "protective sweep" of Clausell's apartment. After a hearing on this issue at which two police officers, Gillen, and Clausell testified, the District Court concluded that Clausell failed to carry his burden to establish that the evidence seized from the apartment would have been suppressed, particularly in light of both the inevitable discovery and public safety exceptions to the warrant requirement. The District Court determined that Clausell's "tragic accident" theory provided his best chance of acquittal, especially given that Clausell remained adamant throughout trial, direct appeal, and the postconviction proceeding that a tragic accident is what happened. Furthermore, given Clausell's theory, the District Court found that the defense This appeal follows.
¶ 10 We review a district court's denial of a petition for postconviction relief to determine whether the court's findings of fact are clearly erroneous and whether its conclusions of law are correct. State v. Root, 2003 MT 28, ¶ 7, 314 Mont. 186, ¶ 7, 64 P.3d 1035, ¶ 7 (citation omitted). Claims of ineffective assistance of counsel constitute mixed questions of law and fact that we review de novo. State v. Kougl, 2004 MT 243, ¶ 12, 323 Mont. 6,
¶ 12, 97 P.3d 1095, ¶ 12 (citations omitted). We measure prosecutorial misconduct by reference to established norms of professional conduct. State v. Martin, 2001 MT 83, ¶ 63, 305 Mont. 123, ¶ 63, 23 P.3d 216, ¶ 63 (citations omitted).
¶ 11 Misconduct by a prosecutor may form the basis for granting a new trial where the prosecutor's actions have deprived the defendant of a fair and impartial trial. State v. Gray (1983), 207 Mont. 261, 266-67, 673 P.2d 1262, 1265-66 (citations omitted). Clausell contends the prosecutor made a series of improper comments during voir dire, closing statement, and rebuttal, that individually, or if taken as a whole, influenced the jury and prejudiced him.
¶ 12 Clausell attempted to raise similar issues on direct appeal. We did not review the merits of those issues, however, due to Gillen's failure to make timely objections to the prosecutor's statements at trial as required under § 46-20-104(2), MCA. Clausell, ¶¶ 43-45. Clausell raised corresponding claims during the postconviction proceedings. Although the District Court noted that Gillen's failure to object to these statements at trial should have been raised on direct appeal, it then stated that "[d]espite the failure to object, this Court will still consider the issue." The District Court then analyzed Clausell's allegations of prosecutorial misconduct before dismissing the issue. Under normal circumstances we would not review separately Clausell's claims of potential misconduct due to his failure to preserve the issue for appeal. Clausell, ¶ 45; § 46-20-104(2), MCA. In this case, however, the District Court's decision to analyze the issue and the close nexus between Clausell's prosecutorial misconduct claims and his ineffective assistance of counsel claims leads us to address briefly Clausell's allegations of prosecutorial misconduct.
¶ 13 First, Clausell argues that the prosecutor improperly attacked Gillen by stating during voir dire and closing statement that Gillen was "hiding the ball," thereby implying Gillen lied during the presentation of Clausell's case. The context of the prosecutor's "hide the ball" comments reveals that the prosecutor used the term to remind the jurors of his point during voir dire that jurors should use their common sense when deciding this matter. After analogizing about using common sense to make decisions when crossing a street, the prosecutor stated:
¶ 14 Clausell next argues that the prosecutor improperly commented on Clausell's credibility and inferred he was lying when, during closing statement, the prosecutor related the story about his child's friend lying to him and immediately tied that story to Clausell's defense theory. The State points out, however, that Clausell takes these comments out of context. Indeed, the record shows that this story formed part of the same example Clausell used to allege that the prosecutor improperly attacked Gillen. The State contends that the prosecutor referred to Clausell's conflicting statements and, through the use of analogy, illustrated how a decision-maker weighs the inconsistent statements against the physical evidence in order to find the truth. We agree.
¶ 15 Clausell also takes issue with a rebuttal statement by the prosecutor regarding Clausell's possible use of a towel or pillow to muffle the...
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...such arguments are improper because they “appeal to base, visceral emotion, without regard for evidence or proof of guilt.” See Clausell v. State, 2005 MT 33, ¶ 41, 326 Mont. 63, 106 P.3d 1175 (Nelson, J., dissenting) (“These types of ‘Golden Rule’ arguments are improper, as they interfere ......
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...during certain times of the trial so as not to confuse the jury or bring undue attention to the prosecution's case." Clausell v. State, 2005 MT 33, ¶ 20, 326 Mont. 63, 106 P.3d 1175. ¶52 While not objecting to this portion of Kemp's testimony, Olson vigorously cross-examined Kemp and distin......
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