McGarvey v. State

• Decision Date: 15 July 2014
• Docket Number: No. DA 13–0062.,DA 13–0062.
• Citation: 329 P.3d 576,375 Mont. 495
• Parties: Troy McGARVEY, Petitioner and Appellant, v. STATE of Montana, Respondent and Appellee.
• Court: Montana Supreme Court

375 Mont. 495

329 P.3d 576

Troy McGARVEY, Petitioner and Appellant,

v.STATE of Montana, Respondent and Appellee.

No. DA 13–0062.

Supreme Court of Montana.

Submitted on Briefs May 21, 2014.

Decided July 15, 2014.

For Appellant: Wendy Holton, Attorney at Law, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana, Ed Corrigan, Flathead County Attorney, Kalispell, Montana.

Justice MICHAEL E. WHEAT delivered the Opinion of the Court.

¶ 1 Troy McGarvey (McGarvey) appeals the District Court's denial of his petition for postconviction relief (PCR).

¶ 2 The following issues are presented for review:

¶ 3 Did the District Court err in concluding that the State had not failed to disclose relevant exculpatory and impeachment evidence?

¶ 4 Did the District Court err in concluding that McGarvey had not received ineffective assistance of counsel?

¶ 5 Is McGarvey entitled to a new trial under the cumulative error doctrine?

¶ 6 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 7 The State charged McGarvey with two counts of Deliberate Homicide for the deaths of Clifford Grant (Grant) and Norman Nelson (Nelson). The jury convicted McGarvey on both counts after a three-day trial in November 2003. McGarvey appealed that conviction to this Court and we affirmed in State v. McGarvey, 2005 MT 308, 329 Mont. 439, 124 P.3d 1131. McGarvey filed a PCR petition in the District Court alleging that the State had failed to disclose exculpatory and impeachment evidence relevant to the case and also that his trial attorneys had rendered ineffective assistance of counsel (IAC). The District Court held a hearing on April 25 and 26, 2011, and denied McGarvey's PCR petition. McGarvey now appeals.

¶ 8 At trial, the State relied heavily on the testimony of Robert Armstrong (Armstrong) and Stan Edwardson (Edwardson), who both testified that McGarvey had told them that he shot Grant and Nelson. McGarvey's PCR petition alleges that the State withheld impeachment evidence relating to Armstrong and Edwardson and that his attorneys, Gregory Jackson (Jackson) and Don Vernay (Vernay) failed to adequately impeach either witness on cross-examination.

¶ 9 In 2003, prior to McGarvey's trial for homicide, Armstrong had pled guilty to felony theft. Susan Fox (Fox), Armstrong's mother, appeared at his sentencing for that crime and testified that she believed Armstrong suffered from forgetfulness and was easily overcome by stress as a result of electrocution. Although the State provided a transcript of Armstrong's change of plea hearing to McGarvey's defense, the State did not provide the defense with the transcript of Armstrong's sentencing hearing, or the letter written by Fox. Armstrong also kept extensive notes while he was in prison. Among those notes was a stream-of-consciousness list beginning with the phrase “Admit to Schizo” and listing a handful of mental health issues associated with schizophrenia. All of Armstrong's notes were provided to the defense, but the State indicated to the defense that it did not believe the evidence was relevant for the purposes of the trial. At trial, the defense cross-examined Armstrong and impeached his credibility by establishing that he was receiving leniency on other criminal charges in exchange for his testimony and by establishing that he had lied in a prior court appearance. Armstrong and Fox also testified at the trial that Fox had made the initial tip to Crime Stoppers after Armstrong told her about McGarvey's confession.

¶ 10 In January 2002, Edwardson had twice told investigators that McGarvey did not confess to him. Edwardson then visited Rod Monroe (Monroe), who had been incarcerated on drug charges. After visiting Monroe, Edwardson told investigators that McGarvey had confessed to him while Monroe was present. Monroe and Edwardson were later charged in a scheme to produce methamphetamine in August 2003. At McGarvey's trial, Edwardson testified that only Armstrong and himself were present for McGarvey's confession. Defense counsel cross-examined Edwardson and impeached his credibility by establishing that he had changed his statements to law enforcement and that he owed McGarvey money.

¶ 11 Finally, the defense presented a theory at trial that the murders had been committed by Saul “Tony” Sanchez (Sanchez) and/or other members of the “Mexican Mafia” because of a dispute stemming from the victims' production of methamphetamine. The defense presented evidence indicating that Sanchez was a drug dealer and that he was armed. The defense also established that Sanchez possessed a Toyota Celica, which had been identified as the same make as the vehicle driven by the killer. Sanchez testified that Grant owed him money and that he had called Grant around the time of the murders. Finally, the defense theorized that multiple shooters had been present at the scene of the crime, one of whom was firing a 9 mm, and established that Sanchez owned a weapon of that caliber.

¶ 12 McGarvey's PCR petition raised evidence relating to Sanchez that had not been presented at trial. In February 2002, Mary Leptich (Leptich) was interviewed by Lake County detectives regarding her involvement with methamphetamine distribution and Sanchez. Leptich told detectives that Sanchez had been involved in methamphetamine distribution and was well armed. Leptich also indicated that she believed Sanchez to be responsible for an assault on another drug dealer. Flathead County investigators involved with McGarvey's trial were apparently unaware of these interviews and did not disclose the interviews to defense counsel. Leptich was again interviewed in 2006, this time by an investigator hired by McGarvey. Leptich told this investigator that she believed Sanchez had murdered Grant because he had once told her that “what happened to Grant could happen to other people.” Additionally, the mother of Sanchez's child, Ann Marie Matts, had filed a report with St. Ignatius police that Sanchez had threatened to kill her. The defense was unaware of this report, as was the State.

¶ 13 Finally, McGarvey's PCR petition relied substantially on the testimony of two inmates who had obtained information about the crime. Joseph Buck (Buck) shared a cell block with Armstrong and then McGarvey before the trial. Armstrong told Buck that McGarvey had found dead bodies at the crime scene and that Armstrong himself had gone to the crime scene to see. Buck then relayed this discussion to McGarvey while he awaited trial. McGarvey did not share this information with his counsel. Kenneth Gifford (Gifford) testified that a Mexican–American man had told him about Grant's murder and the murder had resulted from a drug debt. Gene Hulford (Hulford) had seen an older Hispanic man waiting outside of Grant's property three or four weeks before the homicides. This evidence was presented at the PCR hearing.

STANDARD OF REVIEW

¶ 14 We review a district court's denial of a PCR petition for post-conviction relief to determine whether the court's findings of fact are clearly erroneous and whether its conclusions of law are correct. Sartain v. State, 2012 MT 164, ¶ 9, 365 Mont. 483, 285 P.3d 407. We review discretionary rulings in PCR proceedings, including rulings related to whether to hold an evidentiary hearing, for an abuse of discretion. State v. Morgan, 2003 MT 193, ¶ 7, 316 Mont. 509, 74 P.3d 1047. We review de novo the mixed questions of law and fact presented by claims of ineffective assistance of counsel. Weaver v. State, 2005 MT 158, ¶ 13, 327 Mont. 441, 114 P.3d 1039. A petitioner seeking to reverse a district court order denying PCR based on ineffective assistance of counsel bears a heavy burden. Sartain,¶ 9 (citing Morgan, ¶ 9).

DISCUSSION

¶ 15 Did the District Court err in concluding that the State had not failed to disclose relevant exculpatory and impeachment evidence?

¶ 16 In all criminal cases the prosecution has a long-established duty to provide to the defense any exculpatory or impeachment evidence in its possession. State v. Ellison, 2012 MT 50, ¶ 15, 364 Mont. 276, 272 P.3d 646 (discussing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)); State v. Cooksey, 2012 MT 226, ¶ 34, 366 Mont. 346, 286 P.3d 1174. A party seeking to establish a Brady violation must establish that:

(1) the State possessed evidence, including impeachment evidence, favorable to the defense; (2) the petitioner did not possess the evidence nor could he have obtained it with reasonable diligence; (3) the prosecution suppressed the favorable evidence; and (4) had the evidence been disclosed, a reasonable probability exists that the outcome of the proceedings would have been different.

Gollehon v. State, 1999 MT 210, ¶ 15, 296 Mont. 6, 986 P.2d 395. See also State v. St. Dennis, 2010 MT 229, ¶ 47, 358 Mont. 88, 244 P.3d 292 (quoting Strickler v. Greene, 527 U.S. 263, 281–82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999)). In examining whether the State possessed and suppressed evidence, “[t]he prosecutor's obligation of disclosure extends to material and information in the possession or control of members of the prosecutor's staff and of any other persons who have participated in the investigation or evaluation of the case.” Section 46–15–322(4), MCA. Although investigators cannot hamper the accused's right to obtain exculpatory evidence, police officers are not required to take initiative or assist the defendant with procuring evidence on his own behalf. State v. Seiffert, 2010 MT 169,¶ 15, 357 Mont. 188, 237 P.3d 669 (citing State v. Belgarde, 1998 MT 152, ¶ 16, 289 Mont. 287, 962 P.2d 571). As a general rule, the State's obligation to disclose information under Brady does not impose a duty on the prosecutor or investigators to learn of information possessed by other jurisdictions or agencies that have no involvement in the investigation or prosecution at issue. U.S. v. Morris, 80 F.3d...