Hartinger v. State

• Decision Date: 12 June 2007
• Docket Number: No. 05-514.,05-514.
• Citation: 162 P.3d 95,337 Mont. 432,2007 MT 141
• Parties: Loren Curtis HARTINGER, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.
• Court: Montana Supreme Court

162 P.3d 95

2007 MT 141

337 Mont. 432

Loren Curtis HARTINGER, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.

No. 05-514.

Supreme Court of Montana.

Submitted on Briefs August 3, 2006.

Decided June 12, 2007.

For Appellant: Scott A. Albers, Great Falls, Montana.

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

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Loren Curtis Hartinger (Hartinger) appeals from the order of the Twenty-First Judicial District Court, Ravalli County, denying his petition for postconviction relief. We affirm.

¶ 2 The issue on appeal is whether the District Court erred in denying Hartinger's postconviction claims alleging his trial counsel rendered ineffective assistance of counsel by:

¶ 3 a. failing to file a notice of appeal?

¶ 4 b. failing to file a motion to suppress Hartinger's incriminating statements?

¶ 5 c. failing to file a motion to suppress "newly discovered" evidence?

¶ 6 d. the manner in which counsel conducted voir dire?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 7 On February 1, 2003, at approximately 3:15 a.m., Officer Claus James Meier (Officer Meier) of the Ravalli County Sheriff's Office (RCSO) observed Hartinger driving his vehicle on the wrong side of Highway 93 between Missoula and Hamilton, proceeding north to Missoula. Officer Meier activated his patrol car's flashing lights and siren in an attempt to stop Hartinger, but Hartinger initially failed to pull over, continuing to drive for approximately one mile and passing many convenient places to stop. Hartinger finally pulled over, but before Officer Meier could get out of his car, Hartinger sped off again. Officer Meier pursued Hartinger and radioed dispatch that a failure to yield incident was in progress. Road conditions were poor from continuing heavy rain, with water standing on the road, and Officer Meier observed that Hartinger had difficulty controlling his vehicle. Hartinger eventually lost control, crossed the highway into the oncoming lane of traffic, and fishtailed along the shoulder of the southbound lane before again regaining control of the vehicle.

¶ 8 Hartinger then made a left-hand turn onto a highway access road that led to Meridian Road, which runs parallel to Highway 93. Hartinger made the turn immediately in front of a southbound vehicle, forcing the driver to slam on its brakes to avoid colliding with Hartinger, and, in doing so, causing the car to slide out of control into the ditch. After ensuring the passengers of that car were fine, Officer Meier continued his pursuit of Hartinger, who by then had left the paved road and was speeding along a rural, muddy road. Office Meier noted that, despite going 70 miles per hour in his patrol car at times, Hartinger was pulling away from him. The pursuit continued through the town of Victor, where Officer Meier observed Hartinger race through several intersections without stopping at stop signs or even checking for traffic.

¶ 9 RCSO Deputy McElderry and Sergeant Fowler joined the pursuit of Hartinger. Hartinger headed west into the mountains up a narrow, unpaved forest service road in poor winter condition, forcing an approaching vehicle to pull off the road to avoid a collision. A short time later, Hartinger's vehicle slid off the road, whereupon he fled on foot into the woods, with Officer Meier in chase. Officer Meier yelled "Sheriff's Office, stop!" but Hartinger ignored this directive. Hartinger was eventually caught by Officer Meier with Deputy McElderry assisting. Walking Hartinger back to the cars, Officer Meier noted a strong smell of alcohol emanating from Hartinger and noticed that he had difficulty maintaining his balance.

¶ 10 Officer Meier, Deputy McElderry, and Hartinger were part of the way back to the car when Sergeant Fowler caught up. Upon meeting them, and before Hartinger was Mirandized, Sergeant Fowler asked him "[w]hat he thought he was doing," and Hartinger responded, "I'm drunk and I'm trying to get away." Reaching Hartinger's car, the officers observed, in plain view, a marijuana pipe containing a green leafy substance on the floorboard, along with several opened and unopened containers of beer.

¶ 11 Sergeant Fowler placed Hartinger into his patrol car and transported him to the Ravalli County Detention Center (RCDC). During transport, Hartinger volunteered an apology for anyone who had been hurt during the chase and again stated that he was just drunk and wanted to get away. Upon arrival at RCDC, Hartinger was processed and booked. A standard field sobriety test was administered, but he refused to take the one-legged stand test or provide a breath sample.

¶ 12 Hartinger was charged with criminal endangerment, driving under the influence of alcohol and/or drugs (second offense), reckless driving while eluding, criminal possession of dangerous drugs, criminal possession of drug paraphernalia, and open container.¹ Hartinger's initial appearance was held on February 20, 2003, with public defender Kathy Anderson representing him. Mark McLaverty replaced Ms. Anderson as counsel upon her relocation to Billings. On July 8, 2003, at Hartinger's pretrial conference, Hartinger requested that the court appoint Mr. McLaverty's associate, Michael Montgomery (Montgomery), to represent him, with McLaverty as "standby" counsel, because Hartinger had seen press reporting about Montgomery's recent trial success and had also observed him while he visited other clients in RCDC. The District Court granted this request, appointing Montgomery as co-counsel, with Hartinger being directed to contact Montgomery, as Montgomery was not present at the pretrial conference.

¶ 13 Upon learning of his appointment, Montgomery reviewed the matter and visited Hartinger at the RCDC. He offered his assessment that the facts of the case did not look good, discussed the law, and reviewed trial strategy. Montgomery advised Hartinger to accept a plea bargain offered by the State, but Hartinger refused and subsequently asked about the statements he had made to police. Montgomery testified at the postconviction hearing that, in answering Hartinger's question, he said "we probably should've suppressed that or tried to suppress that. You can always claim ineffective against me," explaining he had said that to instill confidence in Hartinger that Montgomery was "here to advocate for [him]." However, Montgomery also testified that the statement was a "flip comment" and that, in light of Hartinger's refusal of the plea bargain and his appointment three weeks before trial, with the motion deadline already passed, he had proceeded to develop a trial theory which incorporated the statements. Further, he noted that, in his opinion, the motion would not have been "legally relevant in the light that [Hartinger] was Mirandized later and in custody and he made a statement, `I was drunk.'"

¶ 14 On Monday, August 11, 2003, the day trial was scheduled to commence, the parties held a pretrial conference in chambers to discuss the 911 audiotape and transcript, which had been made of law enforcement's pursuit of Hartinger. The State had provided this evidence the previous Friday, and based on the "newly discovered" evidence, Montgomery moved to dismiss the charges. He did not file a motion to suppress the evidence. The State responded that the audiotape and transcript were just different forms of the dispatch log earlier provided to the defense, and were not newly discovered evidence. The court denied the motion to dismiss, but granted a one-day continuance of the trial to allow the defense to prepare for the evidence.

¶ 15 Montgomery's approach in voir dire was to speak positively about law enforcement in order to elicit countervailing, negative comments about law enforcement from prospective jurors. Based on his assessment of the jury pool, Montgomery thought it was more beneficial to entice prospective jurors to acknowledge that police officers made mistakes, than for Montgomery, himself, to personally attack them. As a result, Montgomery elected not to challenge for cause prospective jurors Snodgrass and Cleveland, despite their "pro-police" views and instead used a peremptory challenge to exclude Snodgrass.²

¶ 16 At the conclusion of the State's case-in-chief, Montgomery moved for a directed verdict on the charges of criminal possession of dangerous drugs and criminal endangerment. The court granted the motion on the criminal possession charge, but denied the motion with regard to criminal endangerment, finding sufficient evidence to establish a prima facie case against Hartinger. In his case-in-chief, Hartinger offered evidence that police had overestimated his speed through two expert witnesses who used mathematical calculations to demonstrate that Hartinger was not driving 70 miles per hour, but was actually driving closer to an average speed of approximately 45 miles per hour. Then, during settlement of jury instructions, Montgomery argued that this evidence supported an instruction for negligent endangerment in addition to criminal endangerment. The District Court denied the request, reasoning that there was no evidence Hartinger negligently, rather than purposely, engaged in the conduct of fleeing from police. The jury subsequently found Hartinger guilty of criminal endangerment, driving under the influence of alcohol and/or drugs, criminal possession of drug paraphernalia, and possessing an open container within his vehicle.

¶ 17 After the trial, Montgomery visited Hartinger in the RCDC, at which time Hartinger advised Montgomery that he was going to file a complaint against Montgomery for his failure to file a motion to suppress Hartinger's statements to law enforcement. Montgomery responded by telling Hartinger that he would not file Hartinger's notice of appeal,...