Petition of Gillham, 85-146
| Decision Date | 14 November 1985 |
| Docket Number | No. 85-146,85-146 |
| Citation | 707 P.2d 1100,218 Mont. 187 |
| Parties | In re the Petition of Henry J. GILLHAM. |
| Court | Montana Supreme Court |
Henry J. Gillham seeks post-conviction relief from a judgment of conviction of attempted deliberate homicide entered following a jury trial in the District Court, Nineteenth Judicial District, Lincoln County, Honorable Robert M. Holter presiding. The District Court imposed a sentence of 60 years for the attempted deliberate homicide, plus an additional 10 years pursuant to Sec. 46-18-221, MCA, for the use of a destructive device. The court designated the petitioner a dangerous offender for the purposes of parole. The final judgment of conviction and sentence was entered on May 17, 1982.
Gillham appealed his conviction to this Court. He was represented by attorney Kerry Newcomer. On appeal, Gillham raised the following issues: improperly admitted evidence of "other crimes"; improper prosecutorial argument to the jury; juror misconduct; insufficient evidence to support the conviction; and cumulative error. This Court affirmed the petitioner's conviction in its opinion dated October 6, 1983. State v. Gillham (Mont.1983), 670 P.2d 544, 40 St.Rep. 1576.
Gillham filed his petition for post-conviction relief in this Court on April 1, 1985 and raised four grounds for relief: (1) improper jury instructions; (2) illegal search and seizure; (3) ineffective assistance of counsel; and (4) denial of right to confrontation. The State denies the allegations offered in support of these grounds and opposes Gillham's petition.
In the course of the proceedings before this Court, because Gillham alleged that he was denied effective assistance of counsel in his trial, the Attorney General requested of his counsel, Kerry Newcomer, information respecting the allegations made by Gillham in his petition. Newcomer declined to give such information. He filed an affidavit in which he stated that he was appointed to represent Gillham in December of 1981, approximately 1 month after Gillham had been arrested. Prior to that time Gillham had been represented by private counsel. Newcomer represented him as a part of his duties as a public defender in Lincoln County, Montana. Newcomer further stated in his affidavit that he was reluctant to assume or infer a waiver of the attorney-client privilege by reason of the allegations in Gillham's petition for post-conviction relief. For that reason, and not as an obstacle to the proceedings before this Court, Newcomer wanted assurances that Gillham made a knowing and intelligent waiver of the attorney-client privilege.
On June 6, 1985, 704 P.2d 1019, we entered an order stating that Newcomer, as an officer of this Court, is obliged to assist the Court in the administration of justice and that therefore he should respond by affidavit or other sworn testimony to admit, deny, or qualify the allegations of fact made by Gillham in his petition. We provided that if making such response required him to reveal confidential information from Gillham, he should nonetheless make such response, revealing only so much confidential information as was necessary to properly respond to Gillham's allegations. In that order, we stated that the effective administration of justice and the integrity of the fact finding system in criminal matters were more important than the privilege granted to the attorney-client relationship. We further stated that a petition such as Gillham's which claims that his conviction is the result of inadequate assistance of counsel attacks the system of judicial administration and the fairness of our trial procedures and that to insure convicted persons of evenhanded justice in criminal adjudications, the Court and the State must have access to the truth of the allegations respecting the adequacy of counsel's representation. We held, therefore, that Gillham's actual consent to, or his comprehension of the waiver of the attorney-client privilege were irrelevant when a response was necessary from the attorney that had represented the defendant in the criminal case.
Newcomer did respond to the allegations of Gillham by filing his sworn affidavit and thereafter, the State filed its response to Gillham's petition for post-conviction relief.
The cause is now ripe for consideration by us, and having examined the contentions of Gillham, and responses of the State thereto, we have determined that Gillham's grounds which he claims entitle him to post-conviction relief are without substance. We therefore deny his petition.
Section 26-1-303, MCA, provides that the jury is to be instructed by the court on all proper occasions that, inter alia, "the testimony of a person legally accountable for the acts of the accused ought to be viewed with distrust."
We will not burden this opinion with a full recitation of the facts constituting the crime for which Gillham was convicted. Such a recitation may be found in State v. Gillham (Mont.1983), 670 P.2d 544, 40 St.Rep. 1576. It is enough to say here that Linda Weitz and Mark Darby both testified that they met Gillham in September of 1981 when he showed them a blasting cap and wires and claimed to have dynamite in his truck for the purpose of "blowing up" Jean Nordahl on the instigation of Nordahl's wife, Carolyn, for a commission of $5,000 to $10,000. Weitz and Darby testified that they went with Gillham late on November 12, 1981, to Nordahl's shop. Darby stood guard outside while Gillham went inside for twenty minutes to install sticks of dynamite under the driver's seat of a truck, the dynamite wired so that it would explode within a few seconds after the truck headlights were turned on. Weitz and Darby testified that the next day Gillham told them that "[t]he damned thing didn't go off" and Gillham was worried about whether he had left fingerprints or other traces which could be related to him. Out of fear of Gillham, Weitz and Darby reported the incident to the sheriff's office.
At the time of settling instructions during Gillham's trial, his counsel, Newcomer, had prepared an instruction embodying the mandatory statutory provision set forth above. He withdrew the mandatory accomplice instruction, however, during the discussion with the trial court. In his response to the Attorney General's request for the purposes of this proceeding, Newcomer in his affidavits stated that he withdrew the offering instruction because it was not applicable: Gillham's theory of defense was that Weitz and Darby had completely fabricated their story and Gillham never planted such a bomb.
Two legal issues arise on Gillham's contentions respecting the withdrawal of the mandatory jury instruction: (1) Did the omission to instruct the jury that the testimony of an accomplice is to be viewed with distrust vitiate his conviction? (2) Did the withdrawal of the instruction by Newcomer constitute ineffective assistance of counsel?
To reverse a conviction upon the ground that the defense attorney's performance was deficient, the defendant must show (1) counsel was not functioning so as to preserve the defendant's Sixth Amendment rights and (2) the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693. Defendant must establish a reasonable probability that but for counsel's unprofessional errors, the result of the trial would have been different. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. ---, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. We have adopted the Strickland standards. State v. Boyer (1985), 695 P.2d 829, 831, 42 St.Rep. 247, 250.
Although Newcomer states that Gillham's denial of any complicity in the crime made it inconsistent for him to offer the accomplice instruction, it is clear from the language of the statute, and from the circumstances here,...
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State v. Rose
... ... at 163, 848 P.2d at 499 ... ¶17 The State also cites Petition of Gillham (1985), 218 Mont. 187, 707 P.2d 1100. There, we concluded that the failure of a ... ...