State v. Edwards

• Decision Date: 27 September 2011
• Docket Number: No. DA 10–0399.,DA 10–0399.
• Citation: 260 P.3d 396,361 Mont. 478,2011 MT 210
• Parties: STATE of Montana, Plaintiff and Appellee,v.Richard Phelps EDWARDS, Defendant and Appellant.
• Court: Montana Supreme Court

361 Mont. 478

260 P.3d 396

2011 MT 210

STATE of Montana, Plaintiff and Appellee,

v.Richard Phelps EDWARDS, Defendant and Appellant.

No. DA 10–0399.

Supreme Court of Montana.

Submitted on Briefs July 20, 2011.Decided Aug. 30, 2011.Rehearing Denied Sept. 27, 2011.

For Appellant: Colin M. Stephens; Smith & Stephens, P.C., Missoula, Montana.For Appellee: Steve Bullock, Montana Attorney General; John Paulson, Assistant Attorney General, Helena, Montana, John Petak, III, Stillwater County Attorney, Columbus, Montana; Barbara Harris, Assistant Attorney General, Special Deputy County Attorney for Stillwater County.

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

[361 Mont. 479] ¶ 1 Richard Edwards appeals from his conviction in the District Court, Twenty–Second Judicial District, Stillwater County. We affirm.

ISSUES

¶ 2 Edwards raises three issues on appeal:

¶ 3 1. Whether the District Court erred when it denied Edwards' motion in limine to prevent his wife from testifying at trial.

¶ 4 2. Whether Edwards was denied effective assistance of counsel.

¶ 5 3. Whether the District Court erred when it failed to inquire into Edwards' motion for new counsel.

BACKGROUND

¶ 6 On April 27, 2009, the State filed an information charging Edwards with the deliberate homicide of Daniel Lavigne. Lavigne had been found shot at his residence in 2002. The State subsequently filed an amended information, adding one count of tampering with physical evidence.

¶ 7 On November 2, 2009, prior to trial, Edwards filed a motion in limine to prevent his wife, Sherry Edwards, from testifying based on spousal privilege. Specifically, Edwards sought to exclude Sherry's testimony concerning (1) observations of Edwards' conduct at the time Lavigne was shot, and (2) statements made by Edwards to Sherry that were accompanied by threats. Edwards, the State and the District Court all agreed to apply the 2001 versions of §§ 26–1–802, and 46–16–212, MCA, regarding spousal privilege, because the alleged homicide had occurred in 2002. On January 13, 2010, the District Court denied Edwards' motion. The District Court concluded, “relevant evidence of Sherry's [sic] Edwards' observations of the alleged homicide together with any relevant communication between spouses regarding the alleged homicide delivered or accompanied by a threat is not excludable as evidence at trial on either a competency or spousal privilege basis.”

¶ 8 At trial, the defense examined Sherry twice, once during cross-examination, and once during Edwards' case-in-chief. Throughout questioning, the defense sought to portray Sherry as unreliable and repeatedly challenged her credibility as a witness. At the outset of cross-examination, defense counsel explained, “I'll be kind of winging it, because I wasn't expecting to actually talk to you until tomorrow.” Defense counsel proceeded to elicit that Sherry had lied to investigating officers, had a shifting memory of details and had made numerous prior inconsistent statements. One exchange provided:

[Defense]: And I know this is very difficult. You went through a very long, long series of statements whereby you said he had laid out two to three days?

[Sherry]: Yes, ma'am.

[Defense]: And you had even sworn upon your dead father?

[Sherry]: Yes, ma'am, I did.

[Defense]: And your father meant everything to you, didn't he?

[Sherry]: Yes, he did. Yes, he did.

[Defense]: So even upon your dead father, you lied?

[Sherry]: Yes, Ma'am, I did. And I regret that terribly. I was trying to protect my mother.

[Defense]: I'm not asking anything if you could just.... And I'm sorry. I'm not as fast or quite as prepared as I had anticipated being. I had honestly not anticipated you testifying until tomorrow. And so I was kind of in pre-prep.

(Emphasis added.) Following that exchange, Sherry conceded there were many inaccuracies in the written statement she provided to law enforcement personnel.

¶ 9 During Edwards' case-in-chief, defense counsel continued to attack Sherry's credibility, focusing on her inconsistent prior versions of the events surrounding Lavigne's death. Additionally, defense counsel accused Sherry of bias, asserting she changed her story only after Edwards left her and moved in with another woman. Edwards concedes that defense counsel did a “yeoman's job” in re-examining Sherry.

¶ 10 On March 26, 2010, a jury found Edwards guilty of deliberate homicide and tampering with physical evidence. On April 22, 2010, prior to sentencing and still represented by counsel, Edwards filed a pro se motion entitled “Motion for new counsel and a new trial.” He articulated a number of reasons why he felt trial counsel had been ineffective. The District Court forwarded the motion to both the State and defense, requesting that “ defense counsel review the motion and take such action that counsel deems appropriate.” No further action was taken.

¶ 11 On June 1, 2010, Edwards appeared at a sentencing hearing with the same defense counsel who represented him at trial. He received a 100–year term of incarceration in the Montana State Prison with a 50–year restriction on parole eligibility. Edwards filed a timely appeal to this Court.

STANDARDS OF REVIEW

¶ 12 A district court's ruling on a motion in limine is an evidentiary ruling that this Court reviews for an abuse of discretion. State v. Meredith, 2010 MT 27, ¶ 42, 355 Mont. 148, 226 P.3d 571. Where that ruling is based on interpretation of a statute, we review the district court's interpretation de novo and its application for abuse of discretion. State v. Guill, 2010 MT 69, ¶ 25, 355 Mont. 490, 228 P.3d 1152.

¶ 13 “Ineffective assistance of counsel claims raise mixed questions of law and fact that we review de novo.” State v. Savage, 2011 MT 23, ¶ 20, 359 Mont. 207, 248 P.3d 308.

¶ 14 “Absent an abuse of discretion, this Court will not overrule a district court's ruling on a request for substitution of counsel, which is within the sound discretion of the district court.” State v. Hendershot, 2007 MT 49, ¶ 19, 336 Mont. 164, 153 P.3d 619.

DISCUSSION

¶ 15 Whether the District Court erred when it denied Edwards' motion in limine to exclude the testimony of his wife.

¶ 16 As a threshold matter, we conclude that the District Court should have applied the 2009 version of § 26–1–802, MCA, instead of the 2001 version. In criminal actions, Montana has two statutorily-enacted spousal privileges, §§ 26–1–802 and 46–16–212(1)(a), MCA. ¹ State v. Roberts, 194 Mont. 189, 192, 633 P.2d 1214, 1216 (1981). A rule of testimonial disqualification that gives a party-spouse the power to grant or withhold consent to another spouse's testimony is a privilege. Trammel v. United States, 445 U.S. 40, 44, 100 S.Ct. 906, 909, 63 L.Ed.2d 186 (1980). As this Court has previously concluded that the spousal privilege contained in § 46–16–212, MCA, is procedural, State v. Moore, 254 Mont. 241, 247, 836 P.2d 604, 608 (1992), we conclude that § 26–1–802, MCA, is procedural as well. As spousal privileges govern whether a spouse may offer testimony against the other spouse, they concern trial and pre-trial procedure. Procedural statutes “in effect at the time that a case proceeds to trial are the rules that are to be applied to the resolution of that dispute.” Wolfe v. Webb, 251 Mont. 217, 227, 824 P.2d 240, 246 (1992); Moore, 254 Mont. at 247, 836 P.2d at 608. Edwards filed the motion in limine in November 2009. The District Court should have applied the 2009 version of § 26–1–802, MCA. However, we will uphold a district court that reaches the right result for the wrong reason. State v. Parrish, 2010 MT 196, ¶ 11, 357 Mont. 375, 239 P.3d 957.

¶ 17 Applying the 2009 spousal privilege to this case, we conclude that the District Court did not err when it permitted Sherry's testimony about (1) observations of Edwards' actions, and (2) Edwards' marital communications regarding Lavigne's murder that were accompanied by threats. The 2009 version of § 26–1–802, MCA, provides:

Neither spouse may, without the consent of the other, testify during or after the marriage concerning any communication made by one to the other during their marriage. The privilege is restricted to communications made during the existence of the marriage relationship and does not extend to communications made prior to the marriage or to communications made after the marriage is dissolved. The privilege does not apply to a civil action or proceeding by one spouse against the other or to a criminal action or proceeding for a crime committed by one spouse against the other or against a child of either spouse.

Each spouse has the statutory privilege to withhold consent, preventing the other spouse from testifying to marital communications. State v. Nettleton, 233 Mont. 308, 317, 760 P.2d 733, 739 (1988) (where husband withheld consent, § 26–1–802, MCA, prevented ex-wife from testifying that husband had admitted to homicide while they were married).

¶ 18 Under the 2009 version of § 26–1–802, MCA, it was not error to permit Sherry's testimony about her observations of Edwards' actions at the time of Lavigne's murder. Sherry could testify about observations of Edwards' actions without his consent, because Edwards' conduct did not constitute communications. The spousal privilege in § 26–1–802, MCA, extends to, “any communication made by one [spouse] to the other during their marriage.” Section 26–1–802, MCA (emphasis added). The “communication for which privilege is sought must be an utterance or other expression intended to convey a message to the other spouse.” Nettleton, 233 Mont. at 314, 760 P.2d at 737. A spouse's conduct alone does not constitute a “communication” for the purpose of § 26–1–802, MCA. Nettleton, 233 Mont. at 313, 760 P.2d at 737.

¶ 19 Nor did the District Court err when it determined that spousal privilege did not extend to Edwards' communications that were accompanied by threats towards Sherry. For a communication between spouses to be...