State v. Brown
| Decision Date | 25 August 1987 |
| Docket Number | No. 86-439,86-439 |
| Citation | 228 Mont. 209,44 St.Rep. 1462,741 P.2d 428 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Justin Wade BROWN, Defendant and Appellant. |
| Court | Montana Supreme Court |
John Keith, Great Falls, for defendant and appellant.
Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, Patrick Paul, Cascade County Atty., Great Falls, for plaintiff and respondent.
Justin Brown appeals a jury conviction for felony theft in the Eighth Judicial District, Cascade County. On June 12, 1986, Brown was sentenced to ten years in prison with five years suspended. He was also designated a persistent felony offender and sentenced to an additional ten years with five years suspended, to run consecutively. We affirm the conviction.
Brown raises three issues for our review:
1. Did Brown receive effective assistance of counsel?
2. Did the District Court err when it designated Brown a persistent felony offender?
3. Did the District Court err when it denied Brown's request to represent himself?
On May 23, 1985, the Great Falls residence of Tim Murray was burglarized. Several pieces of stereo equipment, valued in excess of $300, were stolen. Two days later, Officer John Cameron of the Great Falls police was contacted by Raelene Wilson. Based on information she provided, Officer Cameron and Officer Al Redenbaugh went to the residence of Sandra LaRoque.
After receiving LaRoque's consent to search under her mobile home, the officers found some of the stolen stereo equipment. LaRoque identified Brown as one of the people who brought the stereo equipment to her home. Fingerprints on the stereo equipment matched those of Brown. On January 2, 1986, Brown was charged with burglary and theft.
The jury was unable to reach a verdict on the burglary charge, but convicted Brown of felony theft, as specified in Sec. 45-6- 301(1)(a), MCA: "A person commits the offense of theft when he purposely or knowingly obtains or exerts unauthorized control over property of the owner and has the purpose of depriving the owner of the property." (Emphasis added.)
Did Brown receive effective assistance of counsel?
Brown's trial was scheduled for Monday morning, April 7, 1986. On the afternoon of April 3, 1986, Brown filed a pro se "motion and order" requesting the discharge of his court-appointed counsel, Nancy Belcheff, for ineffective assistance. He further requested a continuance of his trial date. The court held a hearing on the motion, where Brown stated: "If I have to have her representation, then I will represent myself, its as simple as that." The court denied Brown's request. Brown's trial was held as scheduled with Nancy Belcheff serving as defense counsel.
At trial, Officer Cameron testified that Raelene Wilson told him Brown approached Wilson about buying some stereo equipment. Officer Redenbaugh testified that Sharon LaRoque said Brown brought the equipment to LaRoque's trailer. Detective Renman testified that Brown was informed of his Miranda rights, and that Brown admitted to possessing the stolen equipment. Defense counsel did not object to the testimony of the three officers. Neither Wilson nor LaRoque testified at the trial. In chambers following his case-in-chief, Brown decided against taking the stand and rebutting Detective Renman's testimony.
After the case went to the jury, the jury requested to rehear Detective Renman's testimony about Brown's admission. The judge allowed the court reporter to read the testimony back to the jury. Defense counsel did not object to that procedure.
Brown contends that the cumulative effect of defense counsel's unmade objections caused his conviction and constituted ineffective assistance. Brown also contends that the readback improperly emphasized Detective Renman's testimony.
We review issues of ineffective assistance of counsel under the standard of Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693: "First the defendant must show that counsel's performance was deficient ... Second, the defendant must show that the deficient performance prejudiced the defense."
The ineffective assistance must be apparent from the record. However, our examination of the legal defense provided to Brown shows neither deficiency in assistance, nor deprivation of a fair trial. Brown alleges tactical trial errors, but fails to show how these alleged errors reached the magnitude of deficient performance. As we have repeatedly held, the decisions on the timing and number of objections lie within counsel's tactical discretion. State v. Matson (Mont.1987), 736 P.2d 971, 978, 44 St.Rep. 874, 882. In reviewing the pretrial record and trial transcript, we find that defense counsel's performance was adequate.
Brown fails to show how defense counsel's performance prejudiced his defense. Any sustained objections to the officers' direct testimony would not have materially altered the case against Brown. The statements of Wilson and LaRoque were confirmed by the discovery and fingerprint analysis of the stolen property.
Furthermore, the readback of Detective Renman's testimony did not result in undue emphasis. The court asked, "Does that answer your question?" and the juror replied, "No, it does not." The court refused to accept any further questions. We find that Brown suffered no prejudice as a result of the readback.
We hold that defense counsel provided adequate and effective assistance. Brown stands convicted, not on the basis of unmade objections, but on the basis of substantial evidence which conclusively linked him to the stolen equipment.
Did the District Court err when it designated Brown a persistent felony offender?
The State served notice to Brown of its intention to seek a persistent felony offender designation. At the sentencing hearing on June 11, 1986, the State presented a certified copy of a Wyoming judgment in which Brown was convicted of forgery. Based upon this felony conviction, the District Court designated Brown a persistent felony offender, as defined in Sec. 46-18-501, MCA: "A 'persistent felony offender' is an...
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