State v. Godfrey

• Decision Date: 03 March 2009
• Docket Number: No. DA 06-0064.,DA 06-0064.
• Citation: 203 P.3d 834,2009 MT 60
• Parties: STATE of Montana, Plaintiff and Appellee, v. Tracey R. GODFREY, Defendant and Appellant.
• Court: Montana Supreme Court

203 P.3d 834

2009 MT 60

STATE of Montana, Plaintiff and Appellee, v. Tracey R. GODFREY, Defendant and Appellant.

No. DA 06-0064.

Supreme Court of Montana.

Submitted on Briefs August 9, 2007.

Decided March 3, 2009.

For Appellant: James B. Wheelis, Chief Appellate Defender; David Avery, Assistant Appellate Defender; Helena, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General; C. Mark Fowler, Assistant Attorney General; Helena, Montana, George Corn, Ravalli County Attorney; T. Geoffrey Mahar, Chief Deputy County Attorney; Hamilton, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Appellant Tracey Raymond Godfrey (Godfrey) appeals from the judgment of the Twenty-First Judicial District Court, Ravalli County, dismissing his petition for post-conviction relief. We affirm.

¶ 2 We consider the following issues on appeal:

¶ 3 1. Did the District Court err in dismissing Godfrey's claim that he was denied the right to confront the victim about her alleged recantation as a result of ineffective assistance of counsel and prosecutor error?

¶ 4 2. Did the District Court err in dismissing Godfrey's ineffective assistance of counsel claim regarding his trial counsel's failure to object to questions about his pre-trial silence?

¶ 5 3. Did the District Court err in dismissing Godfrey's claim that he was denied a fair trial because he was not present during conferences when counsel and the court discussed inquiries from the jury during deliberations?

¶ 6 4. Was Godfrey's appellate counsel ineffective because he failed to challenge Godfrey's conviction on the ground that the jury did not meaningfully pay attention to the parties' presentation of evidence?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 7 Following a jury trial, held April 24-25, 2000, Godfrey was convicted of one count of sexual assault. The jury determined that Godfrey had sexually assaulted his eight year old niece, K.M., during a visit to Godfrey's residence in October of 1999. At trial, K.M. testified about the October incident, stating that she fell asleep on Godfrey's couch and when she woke up in the middle of the night she felt his "private" against her bottom, and that it felt "like it was sticking to [her] bottom." As a result of his conviction, the District Court sentenced Godfrey to thirty years in prison. The District Court determined that Godfrey was a persistent felony offender and imposed an additional ten-year sentence to run consecutively. Godfrey appealed and we affirmed his conviction. State v. Godfrey, 2004 MT 197, 322 Mont. 254, 95 P.3d 166. The Sentence Review Division amended Godfrey's sentence to a sixty-year prison term, with thirty years suspended.

¶ 8 Godfrey filed a pro se post-conviction petition, asserting five grounds for relief: (1) his Fourteenth Amendment right to due process was violated by the prosecutor's failure to disclose exculpatory evidence; (2) his Sixth Amendment right to confront witnesses was violated by his trial counsel's ineffective assistance of counsel; (3) his right to be present at every stage of his trial was denied; (4) his Sixth Amendment right to counsel was violated because his trial counsel rendered ineffective assistance of counsel; and (5) he was denied counsel at his re-sentencing hearing, in violation of his right to counsel. Godfrey also submitted four motions: a motion for production, motion for an evidentiary hearing, motion for new trial, and a request for counsel. The District Court dismissed Godfrey's petition for post-conviction relief and denied all motions. Godfrey appeals.

¶ 9 Additional facts will be discussed as needed.

STANDARD OF REVIEW

¶ 10 We review a district court's denial of a petition for post-conviction relief to determine if the court's findings of fact are clearly erroneous and whether the conclusions of law are correct. State v. Morgan, 2003 MT 193, ¶ 7, 316 Mont. 509, 74 P.3d 1047. Ineffective assistance of counsel claims are mixed questions of law and fact which we review de novo. Morgan, ¶ 7. However, discretionary rulings in the post-conviction relief setting, such as whether to hold an evidentiary hearing, are reviewed for an abuse of discretion. Morgan, ¶ 7. Whether a criminal defendant's right to be present at critical stages of his trial was violated is a question of constitutional law, for which our review is plenary. State v. Mann, 2006 MT 160, ¶ 10, 332 Mont. 476, 139 P.3d 159.

DISCUSSION

¶ 11 1. Did the District Court err in dismissing Godfrey's claim that he was denied the right to confront the victim about her alleged recantation as a result of ineffective assistance of counsel and prosecutor error?

¶ 12 Godfrey alleges that he was unconstitutionally denied his Sixth Amendment right to meaningfully confront his accusers because his counsel failed to cross-examine K.M. about her alleged recantation during a pre-trial interview and, thus, his trial counsel, Mark McLaverty (McLaverty), was ineffective. Alternatively, Godfrey argues that prosecutor Geoffrey Mahar (Mahar) withheld this exculpatory evidence and failed to meet his duty as an officer of the court when he stated during closing argument that K.M. was "unshakable" in her allegation of sexual abuse. The State responds that Godfrey failed to provide evidence in support of the allegations of his petition, and the District Court properly dismissed his claim.

¶ 13 A petitioner in post-conviction relief proceedings has the burden to "show by a preponderance of evidence that the facts justify relief." State v. Peck, 263 Mont. 1, 3, 865 P.2d 304, 305 (1993). When seeking post-conviction relief, a defendant must "identify all facts supporting the grounds for relief set forth in the petition and have attached affidavits, records, or other evidence establishing the existence of those facts." Section 46-21-104(1)(c); State v. Wright, 2001 MT 282, ¶ 31, 307 Mont. 349, 42 P.3d 753. Mere conclusory allegations are not enough to support the petition. Wright, ¶ 31. A defendant's affidavit, unsupported by evidence, is also insufficient to support a petition for post-conviction relief. Williams v. State, 2002 MT 189, ¶ 19, 311 Mont. 108, 53 P.3d 864.

¶ 14 We use the two-prong test defined in Strickland v. Washington to review claims of ineffective assistance of counsel. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Pursuant thereto, the defendant must show that "counsel's performance fell short of the range of competence required of attorneys in criminal cases and that his counsel's deficient performance was prejudicial to his case." State v. Hendricks, 2003 MT 223, ¶ 6, 317 Mont. 177, 75 P.3d 1268. With respect to the first prong, we have repeatedly stated that the defendant must overcome the "strong presumption" that trial counsel's actions constituted trial strategy and were within the broad scope of reasonable professional conduct. Hendricks, ¶ 7 Under the second prong, the defendant bears the burden of establishing prejudice through a demonstration that, but for counsel's errors, there is a reasonable probability that the result would have been different. State v. Turnsplenty, 2003 MT 159, ¶ 14, 316 Mont. 275, 70 P.3d 1234.

¶ 15 Godfrey's petition alleges that on April 14, 2000, prior to trial and at the request of defense counsel, K.M. was interviewed by McLaverty, Mahar, and private defense investigator Jeff Patterson (Patterson). Godfrey contends that following the interview, McLaverty and Patterson told him that K.M., when asked if she was mistaken about what happened in October, 1999, stated "I probably am wrong." Godfrey claims that McLaverty's failure to question K.M. at trial about her alleged recantation indicates that McLaverty was ineffective. Godfrey further alleges that McLaverty and Mahar conspired to suppress the exculpatory evidence.

¶ 16 However, before the question of whether counsel's actions were ineffective or constituted prosecutorial misconduct can be determined, Godfrey must establish the predicate facts by a preponderance of evidence. In support of his contentions, Godfrey offered the District Court three pieces of evidence: (1) a motion for payment of private investigator fees; (2) notes from a telephone conversation between Patterson and a paralegal to Godfrey's appellate counsel; and (3) his own sworn affidavit recounting McLaverty's and Patterson's comments to him regarding the alleged repudiation. While the telephone conversation notes support the interview's occurrence, they do not provide evidence of K.M.'s alleged recantation. Incidentally, the telephone notes reveal that Patterson did not take any handwritten notes at the interview, but used a tape recorder which later proved faulty. Thus, the only evidence of the alleged recantation is found in Godfrey's affidavit. As the District Court noted, Godfrey did not attach affidavits from either McLaverty or Patterson, his defense team, who could have corroborated his affidavit. Thus, Godrey's petition fails to point to any evidence that would support his assertion that K.M. recanted.

¶ 17 As noted above, conclusory allegations in the defendant's own affidavit are not enough to support a petition for post-conviction relief. See Williams, ¶ 19; Wright, ¶ 31. In the absence of other affidavits, records, or evidence from which the substance of his allegations could be supported, we cannot disagree with the District Court's assessment that Godfrey failed to meet his burden of proof for establishing the existence of a claim pursuant to § 46-21-104(1)(c), MCA. Accordingly, we conclude that the District Court properly dismissed Godfrey's claim.

¶ 18 2. Did the District Court err in dismissing Godfrey's ineffective assistance of counsel claim regarding his trial counsel's failure to object to questions about his pre-trial silence?

¶ 19 Godfrey alleges that he suffered ineffective assistance of counsel because McLaverty failed to object to the prosecutor's comments regarding his pre-trial...