Notti v. State

• Decision Date: 29 January 2008
• Docket Number: No. DA 06-0130.,DA 06-0130.
• Citation: 341 Mont 183,176 P.3d 1040,2008 MT 20
• Parties: Tony R. NOTTI, Petitioner and Appellant, v. STATE of Montana, Respondent and Appellee.
• Court: Montana Supreme Court

176 P.3d 1040

2008 MT 20

341 Mont. 183

Tony R. NOTTI, Petitioner and Appellant, v. STATE of Montana, Respondent and Appellee.

No. DA 06-0130.

Supreme Court of Montana.

Submitted on Briefs May 2, 2007.

Decided January 29, 2008.

For Appellant: Mary Gallagher, Mary Gallagher Law Office, Missoula, Montana.

For Appellee: Honorable Mike McGrath, Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, Montana, Fred R. Van Valkenburg, County Attorney; Kristen LaCroix, Deputy County Attorney, Missoula, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Appellant Tony R. Notti appeals from the decision of the District Court for the Fourth Judicial District, Missoula County, denying his petition for postconviction relief. We affirm.

¶ 2 We restate the issues on appeal as follows:

1. Did defense counsel render ineffective assistance of counsel by failing to object to testimony of a crime lab technician regarding DNA evidence?

2. Did defense counsel render ineffective assistance of counsel by failing to object to the prior consistent hearsay testimony of four state witnesses?

3. Did defense counsel render ineffective assistance of counsel by his conduct in voir dire?

4. Did the District Court err in failing to hold an evidentiary hearing on the prior consistent hearsay statements of four state witnesses?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On September 5, 2000, the State charged Notti by information with one felony count of sexual intercourse without consent in violation of § 45-5-503, MCA, and one misdemeanor count of theft, in violation of § 45-6-301, MCA. These two charges arose from events of the night of May 15-16, 2000, in which Notti engaged in sexual intercourse without consent with his disabled older brother, Michael Notti.

¶ 4 Notti pleaded not guilty to both counts on September 11, 2000, and a two-day jury trial was conducted, beginning February 7, 2001. The jury found Notti guilty on the count of sexual intercourse without consent and not guilty on the count of theft, Nik Geranios, an attorney with the public defenders' office, represented Notti at trial. On March 27, 2001, Notti requested a change of counsel on the ground of inadequate assistance. The District Court allowed Geranios to withdraw from representation on the basis of a breakdown in the attorney-client relationship and a second public defender was appointed to represent Notti. The District Court subsequently denied Notti's motion for a new trial on January 17, 2002, and thereafter sentenced Notti to fifty years in the Montana State Prison, with twenty, years suspended.

¶ 5 Notti filed an appeal with this Court on the ground of ineffective assistance of counsel due to Geranios' alleged failure to file pretrial motions to prevent witnesses from repeating prior consistent statements by Notti's brother Michael and failure to object to what Notti claimed was hearsay testimony by these witnesses at trial. This Court declined to rule on Notti's ineffective assistance of counsel claim, concluding that Notti's claims could not be reviewed on appeal and were better-suited for postconviction proceedings. State v. Notti, 2003 MT 296, ¶ 9, 318 Mont. 146, ¶ 9, 79 P.3d 289, ¶ 9 (Notti I).

¶ 6 Notti then filed a petition for postconviction relief, raising several claims of ineffective assistance of counsel. These included failure to object to allegedly inadmissible prior consistent hearsay statements at trial, failure to object to alleged hearsay testimony of a Montana Crime Lab technician regarding DNA evidence, and ineffective assistance during voir dire. A third public defender represented Notti in this proceeding. On September 6, 2005, the District Court issued an order denying Notti's petition in part, and reserving two issues for an evidentiary hearing: (1) the crime lab technician's alleged hearsay testimony regarding DNA evidence, and (2) defense counsel's actions during voir dire. The District Court declined to reserve the issue of alleged prior consistent hearsay testimony of four witnesses for the evidentiary hearing, and instead, found that the statements were admissible under M.R. Evid. 803(2) (excited utterances); harmless error; M.R. Evid. 803(4) (statements for purposes of medical treatment or diagnosis); and in regard to one witness, that the witness did not actually repeat any prior consistent statements. The District Court held an evidentiary hearing on the remaining two issues, and thereafter entered its Findings of Fact, Conclusions of Law, and Order denying Notti's remaining ineffective assistance claims and dismissing his petition. This appeal followed.

STANDARD OF REVIEW

¶ 7 This Court reviews a district court's denial of a postconviction relief petition to determine whether the district court's findings of fact are clearly erroneous and whether its conclusions of law are correct. Hartinger v. State, 2007 MT 141, ¶ 19, 337 Mont. 432, ¶ 19, 162 P.3d 95, ¶ 19. Claims of ineffective assistance of counsel are mixed questions of law and fact for which our review is de novo. State v. Morgan, 2003 MT 193, ¶ 7, 316 Mont. 509, ¶ 7, 74 P.3d 1047, ¶ 7. Discretionary rulings in postconviction relief proceedings, including rulings related to whether to hold an evidentiary hearing, are reviewed for an abuse of discretion: Morgan, ¶ 7.

DISCUSSION.

¶ 8 On appeal, Notti contends that Geranios failed to render effective assistance of counsel in three ways. Notti claims Geranios: (1) failed to object to alleged hearsay testimony of a crime lab technician regarding DNA evidence; (2) failed to object to prior consistent hearsay testimony of four state witnesses; and (3) failed to challenge or further question jurors who presented a strong possibility of bias against Notti during voir dire.

¶ 9 When reviewing ineffective assistance of counsel claims, this Court applies the two-part test set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Morgan, ¶ 9. Under Strickland, to prevail on an ineffective assistance of counsel claim, the defendant must show: (1) that counsel's performance was deficient, and (2) that counsel's performance was prejudicial to the defendant. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Morgan, ¶ 9.

¶ 10 The primary question under the first prong of Strickland is "whether counsel acted within the range of competence demanded of attorneys in criminal cases." State v. Niederklopfer, 2000 MT 187, ¶ 19, 300 Mont. 397, ¶ 19, 6 P.3d 448, ¶ 19. Counsel's performance is strongly presumed to be within the wide range of reasonable professional assistance. Morgan, ¶ 10. Generally, defense counsel's "trial tactics and strategic decisions cannot be the basis upon which to find ineffective assistance of counsel." Niederklopfer, ¶ 19.

¶ 11 To prevail under the second prong of Strickland, a defendant milk, demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; see also Dawson v. State, 2000 MT 219, $ 20, 301 Mont. 135, $ 20, 10 P.3d 49, ¶ 20.

¶ 12 A petitioner seeking to reverse a district court's denial of a petition for postconviction relief for ineffective assistance of counsel bears a heavy burden. Morgan, ¶ 9. Furthermore, a petitioner must satisfy both prongs of the Strickland test. Adams v. State, 2007 MT 35, ¶ 22, 336 Mont. 63, ¶ 22, 153 P.3d 601, ¶ 22. If a petitioner makes an insufficient showing as to one prong of the test, then there is no need for the Court to address the other prong. Adams, ¶ 22.

¶ 13 Issue One. Did defense counsel render ineffective assistance of counsel by failing to object to testimony of a crime lab technician regarding DNA evidence?

¶ 14 Notti argues that the District Court erred by failing to conclude that defense counsel's actions, with respect to DNA evidence, fell below objective standards of reasonableness and constituted ineffective assistance of counsel. The District Court determined that Geranios' failure to object to the testimony of state crime lab technician Michelle Griffin was a strategic decision and not outside the range of competence demanded of attorneys in criminal cases.

¶ 15 Montana Crime Lab technician Lori Hutchinson authored a report detailing DNA testing she had performed on several items taken from Michael's apartment, including a washcloth that Hutchinson determined had seminal fluid matching Notti's DNA profile. Due to her attendance at a training session, Hutchinson did not testify at trial. Instead, the State called Michelle Griffin, Hutchinson's co-worker at the crime lab, to testify regarding Hutchinson's DNA report and analysis. Griffin did not perform any of the tests herself. Griffin testified as to the findings contained in Hutchinson's report, including the presence of DNA matching that of Notti's on items seized at the crime scene. At no point did Geranios object to Griffin's testimony. Geranios then proceeded to cross-examine Griffin on the results of the DNA evidence tests.

¶ 16 Notti cites four grounds on which the District Court should have found the testimony inadmissible: (1) the DNA evidence admitted at trial was hearsay; (2) the DNA report was testimonial and Sixth Amendment protections applied; (3) Griffin was improperly declared to be an expert and should not have relied on Hutchinson's report; and (4) the State laid an inadequate foundation for the introduction of Hutchinson's file. Notti claims that counsel's failure to object to these deficiencies constituted ineffective assistance. The State argues that all of Notti's four grounds fail because Geranios made a reasonable strategic decision not to object and that Notti cannot prove prejudice.

¶ 17 We shall first consider whether Geranios' conduct constituted a...