Petition of Martin
| Decision Date | 19 December 1989 |
| Docket Number | No. 89-395,89-395 |
| Parties | In re the Petition of Danny L. MARTIN. |
| Court | Montana Supreme Court |
Petitioner Danny L. Martin was convicted of burglary, theft, and criminal mischief in the District Court for the Fifth Judicial District, Beaverhead County, in December 1985. On July 24, 1989, he filed this petition for post-conviction relief from that judgment. The Attorney General, on behalf of the State of Montana, has filed a response to the petition and Martin has filed a reply to the State's response.
Martin initially requests that an attorney be appointed to represent him in this matter. There is no constitutional requirement that counsel be appointed in a post-conviction relief procedure, which is civil in nature. Pennsylvania v. Finley (1987), 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539. The Court has determined that the matters raised in this petition can be considered by examining the District Court record and the record on appeal. Martin's motion that counsel be appointed to represent him is denied.
Martin raises the following claims:
1) That he has newly discovered evidence regarding the fingerprint used at trial;
2) That the District Judge was guilty of judicial misconduct during Martin's trial;
3) That the County Attorney was guilty of prosecutorial misconduct during Martin's trial;
4) That Martin received ineffective assistance of counsel at trial; and
5) That Martin received ineffective assistance of counsel on appeal.
We will discuss these claims in the order in which they were raised.
I
At trial, the State presented expert testimony that a fingerprint found at the scene of the crime was Martin's. Martin presented his own expert, who testified that the fingerprint did not match Martin's. Martin now submits affidavits of two new fingerprint experts who also state that the print from the crime scene does not match Martin's. He moves for an evidentiary hearing on this issue.
The issue of the validity of the State's fingerprint evidence was well brought out at trial. It was also an issue presented on appeal. See State v. Martin (1987), 226 Mont. 463, 465-66, 736 P.2d 477, 478-79. We hold that the affidavits and argument now submitted by Martin are merely cumulative and do not entitle him to post-conviction relief. We deny his motion for an evidentiary hearing on this issue. II and III
Martin claims that several comments made at trial by the judge and by the county attorney amounted to misconduct on their parts. Some of the judge's comments were addressed on direct appeal, where this Court held that they did not constitute reversible error. Martin, 736 P.2d at 479-80. As the State points out in its brief, those claims are barred from further consideration in post-conviction proceedings. McKenzie v. Osborne (1981), 195 Mont. 26, 32-34, 640 P.2d 368, 372-73.
As to those judicial and prosecutorial comments not raised on direct appeal, Sec. 46-21-105, MCA, governs:
What grounds for relief waived if not raised. All grounds for relief claimed by a petitioner under this chapter must be raised in his original or amended petition. Any grounds not so raised are waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition. When a petitioner has been afforded a direct appeal of his conviction, grounds for relief that could reasonably have been raised on direct appeal may not be raised in his original or amended petition. [Emphasis supplied.]
We hold that the claims of prosecutorial and judicial misconduct which were not raised on direct appeal are procedurally barred in this petition.
IV
This claim is based on defense counsel's failure to 1) send the fingerprint evidence to the Montana Crime Lab for analysis, 2) file a motion to dismiss for insufficient evidence, 3) file a motion to suppress, and 4) object at trial to the comments of the judge and the county attorney which are now raised in the...
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