State v. Hurlbert, 87-427

• Decision Date: 23 May 1988
• Docket Number: No. 87-427,87-427
• Citation: 232 Mont. 115,756 P.2d 1110
• Parties: STATE of Montana, Plaintiff and Respondent, v. Donovan Keith HURLBERT, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1110

756 P.2d 1110

232 Mont. 115

STATE of Montana, Plaintiff and Respondent, v. Donovan Keith HURLBERT, Defendant and Appellant.

No. 87-427.

Supreme Court of Montana.

Submitted on Briefs March 24, 1988.

Decided May 23, 1988.

Daniel Donovan, Great Falls, for defendant and appellant.

Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, John C. McKeon, Co. Atty., Malta, for plaintiff and respondent.

GULBRANDSON, Justice.

Donovan Keith Hurlbert (Hurlbert) appeals his conviction in Phillips County District Court of attempted deliberate homicide. We affirm.

Hurlbert was found guilty by a twelve person jury of attempted deliberate homicide in connection with a shooting incident in the parking lot of the Miner's Club Bar near Zortman, Montana on May 14, 1986. On May 13, 1986, twenty-eight year old Rex Martin (Martin) completed his work shift at a nearby mine and drove to the Miner's Bar to celebrate his birthday. Martin arrived at the bar shortly after four o'clock that afternoon and proceeded to consume beer and some schnapps. Twenty-two year old Hurlbert arrived at the Miner's Club Bar at approximately eight o'clock that same evening.

During the course of the evening at the Miner's Club Bar, Martin and Hurlbert argued several times about an incident that occurred in April of 1986 at the D-Y Bar located near Landusky, Montana. The April incident occurred while Hurlbert was working as a bartender at the D-Y Bar and involved Martin, Hurlbert, and several other bar patrons. The events of that April evening at the D-Y Bar culminated with Hurlbert and a bar patron forcibly evicting Martin from the bar. Martin's fingers were apparently severely smashed when a bar patron slammed the bar doors shut on one of Martin's hands. Martin re-entered the D-Y Bar long enough to accuse Hurlbert of causing the hand injury and to threaten retaliation. Martin's actions that April evening prompted the D-Y Bar's owner to ask Martin not to patronize the bar for thirty days. Martin later learned that Hurlbert was not responsible for the injury to his hand.

Sometime after one o'clock in the morning of May 14, 1986, and after more than five hours of drinking for both men, Hurlbert and Martin appeared to have settled their differences. The two men shook hands and each drank a beer purchased by Hurlbert. Martin then purchased a six-pack of Rainier, his favorite beer, for the road and the two men left within minutes of each other. Conflicting trial testimony was presented as to what happened outside of the bar. Martin testified that he walked to his pickup truck and was "fumbling" for his keys when he noticed Hurlbert motion for him to come over to Hurlbert's pickup truck. Martin testified that as he approached, Hurlbert entered his pickup, grabbed a twelve gauge shotgun from the seat, exited the pickup, turned and pointed the shotgun at Martin's abdomen. Martin contends that, as he turned to his right to flee, his flight was obstructed by the driver's side door of Hurlbert's pickup truck. Martin testified that Hurlbert fired the shotgun before he could turn around to run in the opposite direction.

Hurlbert testified that Martin followed him to the driver's side of Hurlbert's pickup where the two men resumed their argument about the D-Y Bar incident as Hurlbert unlocked and opened the driver's side door. According to Hurlbert, Martin grabbed Hurlbert, threw him aside, and reached in and grabbed Hurlbert's shotgun from the gun rack in the back window of Hurlbert's pickup. In the ensuing struggle for control of Hurlbert's shotgun, Hurlbert contends that the shotgun accidentally discharged.

After the shot, the Miner's Club bartender, Betty Veltri (Veltri), and a patron, Dain Hathaway (Hathaway), ran outside to find Martin shuffling back into the bar with bleeding arms. Veltri testified that she heard Martin exclaim "he (Hurlbert) shot me, he shot me." Veltri also testified that she had a short conversation with Hurlbert who, when asked what happened, exclaimed "he (Martin) tried to shoot me." Hurlbert testified that he also told Veltri to inform the sheriff's deputies when they arrived that he would be at the D-Y Bar. Veltri did not remember Hurlbert saying where he was going. Hathaway remembers Hurlbert and Veltri talking but does not remember what was said. All the witnesses agreed that Hurlbert left the Miner's Club parking lot in a hurry. Martin was seriously injured by the shotgun blast and his arms are permanently impaired and disfigured.

The D-Y Bar is approximately twenty miles from the Miner's Club Bar. Upon arriving at the D-Y Bar, Hurlbert told the bartender, Debbie Baker, that Martin had tried to shoot him and that the shotgun discharged accidentally in the struggle for control. Hurlbert then called the Phillips County Sheriff's office to report an accidental shooting and to inform them of his whereabouts. The sheriff's deputies investigated the crime scene for three hours before going to the D-Y Bar to arrest Hurlbert. During that time, Hurlbert telephoned the Miner's Club Bar several times to find out when the deputies would arrive at the D-Y Bar. When arrested, Hurlbert voluntarily gave the sheriff's deputies a statement about his involvement in the shooting incident.

Martin was severely injured in the lower portions of his left and right forearms and has incurred over $90,000 in medical expenses as a result of the shooting. In its amended information of September 3, 1986, the State of Montana (the State) accused Hurlbert of attempted deliberate homicide with a dangerous weapon pursuant to Sec. 45-5-102(1)(a), Sec. 45-4-103, and Sec. 46-18-221, MCA. Hurlbert pled not guilty and gave the State notice that he intended to present evidence of justifiable use of force as a defense.

A jury trial commenced on February 9, 1987, and culminated with Hurlbert's conviction on February 12, 1987. On June 10, 1987, the District Court sentenced Hurlbert to fifteen years confinement in the Montana State Penitentiary for attempted deliberate homicide with an additional five years to be served consecutively for the use of a dangerous weapon. The District Court suspended eight years of Hurlbert's twenty year sentence, designated him a non-dangerous offender, and recommended that he be allowed to serve the balance of his confinement at the Montana Department of Institutions' Swan River Forest Camp. Hurlbert appeals from the judgment and sentence imposed upon him and raises the following issues for our review:

1. Did Hurlbert receive effective assistance of counsel?

2. Did the District Court err in instructing the jury on the issue of "flight" from the scene of the crime?

In his first issue, Hurlbert alleges that his defense counsel was ineffective for the following reasons:

1. Defense counsel failed to effectively test the credibility of the State's witnesses.

2. Defense counsel failed to offer instructions on the theory of the defense.

3. Defense counsel did not adequately prepare for the sentencing hearing.

This Court reviews issues of ineffective counsel under the standards set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. State v. Johnson (Mont.1986), 719 P.2d 771, 773, 43 St.Rep. 913, 916. The Strickland standards are that the defendant must first "show that counsel's performance was deficient," and then must "show that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. We have reviewed numerous claims of ineffective counsel under a myriad of circumstances and recognize that the burden is heavy on a defendant who seeks to reverse a judgment on such grounds. State v. LaValley (1983), 203 Mont. 393, 398, 661 P.2d 869, 872.

To begin with, this Court will not second guess the trial tactics of defense counsel. State v. Tome (Mont.1987), 742 P.2d 479, 482, 44 St.Rep. 1629, 1632; State v. Brown (Mont.1987), 741 P.2d 428, 430, 44 St.Rep. 1462, 1464. Furthermore, a claim of ineffective counsel must be grounded in facts found in the record, not on "mere conclusory allegations." Tome, 742 P.2d at 482. Defense counsel's use of objections during trial lie within his or her sound discretion and failure to object must, in addition to being error, also prejudice the defendant. Brown, 741 P.2d at 430; State v. Probert (Mont.1986), 719 P.2d 783, 786, 43 St.Rep. 988, 992.

In adopting the Strickland standards, we also recognized that any alleged error by defense counsel must be shown to prejudice the defendant before reversal will be warranted. State v. Robbins (Mont.1985), 708 P.2d 227, 43 St.Rep. 1440 (citing Strickland ). Robbins sets forth what the defendant must show in order to establish prejudice:

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of a proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Robbins, 708 P.2d at 232.

Defense counsel's decision not to extensively cross-examine certain witnesses in this case was a tactical decision within his discretion. Hurlbert contends that defense counsel should have cross-examined Martin as to his version of the shooting to point out improbable, inconsistent and confusing facts in Martin's story. However, defense counsel sufficiently attacked Martin's testimony in his closing argument. Defense counsel also solicited evidence from Hurlbert and other witnesses that tended to conflict with Martin's story. We recognize that it is sometimes a more prudent trial tactic to indirectly attack a witness' testimony through the testimony of other witnesses and in closing arguments rather than to put undue emphasis on one witness' version with extensive cross-examination. Whether defense counsel consciously chose one of the above methods over the other as a trial tactic is not only subject to speculation, but is also immaterial to the issue of...