State v. JC, 03-195.

• Decision Date: 30 March 2004
• Docket Number: No. 03-195.,03-195.
• Citation: 2004 MT 75,87 P.3d 501,320 Mont. 411
• Parties: STATE of Montana, Plaintiff and Respondent, v. J. C., Defendant and Appellant.
• Court: Montana Supreme Court

87 P.3d 501

2004 MT 75

320 Mont. 411

STATE of Montana, Plaintiff and Respondent, v. J. C., Defendant and Appellant.

No. 03-195.

Supreme Court of Montana.

Submitted on Briefs January 13, 2004.

Decided March 30, 2004.

For Appellant: John Bohlman, Roundup, Montana.

For Respondent: Mike McGrath, Attorney General; Pamela P. Collins, Assistant Attorney General; Helena, Montana Catherine Truman, County Attorney, Roundup, Montana.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 J.C. appeals multiple issues regarding his trial and sentence for the offense of felony incest. We affirm. The issues on appeal are as follows:

¶ 2 1. Whether J.C.'s trial counsel was ineffective for (a) challenging R.C.'s credibility on cross-examination and (b) failing to develop testimony regarding J.C.'s alleged mental impairment?

¶ 3 2. Whether the District Court erred when it allowed testimony during J.C.'s sentencing hearing from a counselor who conducted a psychosexual evaluation of J.C. for a different case?

¶ 4 3. Whether the District Court augmented J.C.'s sentence because he failed to admit he committed the offense?

¶ 5 4. Whether J.C., in failing to object to the Presentence Investigation (PSI) and psychosexual evaluation in the District Court, waived his right to object to these matters on appeal?

¶ 6 5. Whether the District Court erred when it imposed restitution?

Factual and Procedural Background

¶ 7 J.C. was charged by Information with the offense of Incest, a felony, in violation of § 45-5-507, MCA. The charge was based on allegations that from May 1999 through May 2001, J.C. had sexual contact with R.C., J.C.'s son. J.C. appeared in court with his court-appointed counsel and pleaded "not guilty" to the charges.

¶ 8 J.C. filed a motion to suppress statements he made to a counselor in conjunction with a different child abuse and neglect case involving R.C. Subsequent to the motion being filed, the court granted J.C.'s request to have retained counsel substituted for his appointed counsel. During this same time period, J.C. married R.C.'s mother. In February 2002, the court held a hearing regarding the statements J.C. made to the counselor. J.C. appeared with his retained counsel for this hearing. The court denied J.C.'s motion to suppress the statements.

¶ 9 On May 1, 2002, a jury trial began. At the time of trial, R.C. was six years old and in kindergarten. He had been removed from his parents' home approximately one year earlier and had been living with a foster family since that time. The evidence the State presented against J.C. at trial included the following. R.C. testified that J.C. placed his hands and mouth on R.C.'s "private area" numerous times. A licensed clinical professional counselor to whom R.C. was referred by the Department of Public Health and Human Services soon after being removed from his parents' home also testified. This counselor stated that she observed R.C. display behaviors and make statements which indicated he had been sexually abused by his father. A licensed clinical psychologist who began treating R.C. approximately three months after he was removed from his parents' home also testified. She testified that she evaluated R.C. and concluded that he exhibited behaviors consistent with that of a sexually-abused child.

¶ 10 J.C. was found guilty of the offense of Incest in violation of § 45-5-507, MCA. The court ordered a PSI be conducted prior to sentencing. The court required a psychosexual examination of J.C. in order to complete the PSI. At the sentencing hearing, the court concluded J.C. was a Level III sexual offender with a high risk of re-offending. The court sentenced him to fifty years in the Montana State Prison with all but twenty years suspended, subject to certain conditions. J.C. was served with a Notice of Right to Apply for Sentence Review. J.C. filed a notice of appeal. J.C.'s retained counsel was permitted to withdraw from J.C.'s case and on February 6, 2003, the District Court appointed counsel to represent J.C. for his appeal.

Discussion

¶ 11 Issue 1: Whether J.C.'s trial counsel was ineffective for (a) challenging R.C.'s credibility on cross-examination and (b) failing to develop testimony regarding J.C.'s alleged mental impairment?

¶ 12 We review an allegation of ineffective assistance of counsel employing the two-part test from Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Dawson v. State, 2000 MT 219, ¶ 20, 301 Mont. 135, ¶ 20, 10 P.3d 49, ¶ 20. A defendant must first demonstrate "that his counsel's performance was not within the range of competence demanded of attorneys under similar circumstances." State v. Sellner (1997), 286 Mont. 397, 400, 951 P.2d 996, 998. Counsel's performance must be deficient "with a showing of errors so serious that assistance was not effective[.]" State v. Gallagher, 2001 MT 39, ¶ 7, 304 Mont. 215, ¶ 7, 19 P.3d 817, ¶ 7. Second, a defendant must prove that absent counsel's deficient representation, there is a reasonable probability that "the result of the proceeding would have been different." Dawson, ¶ 20. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Dawson, ¶ 20 (citation omitted).

¶ 13 A strong presumption exists that counsel has "rendered adequate assistance of counsel and made all significant decisions in the exercise of reasonable professional judgment." State v. Weldele, 2003 MT 117, ¶ 70, 315 Mont. 452, ¶ 70, 69 P.3d 1162, ¶ 70 (citation omitted). "Arguably inadequate professional performance will not warrant overturning a judgment if the counsel's error had no effect on the judgment." Weldele, ¶ 70.

¶ 14 We have recognized that in "certain circumstances, counsel's performance may be so deficient that a defendant need not prove the second element of the Strickland test." Gallagher, ¶ 8. In such a case, the "prejudice may be presumed without inquiry into the actual conduct at trial." Gallagher, ¶ 8. One type of situation we have recognized as establishing the presumption of prejudice is an irreconcilable conflict between an attorney and his or her client caused by a complete lack of communication. Gallagher, ¶ 13.

Challenging R.C.'s credibility on cross-examination

¶ 15 J.C. claims his counsel was ineffective for questioning R.C. about whether R.C. had been improperly influenced or coached to change his testimony. J.C. asserts that he was prejudiced because this questioning opened the door to rebuttal testimony regarding R.C.'s prior consistent statements. This rebuttal testimony was allowed because defense counsel challenged R.C.'s credibility on the basis of improper influence. Rule 801, M.R.Evid. J.C. claims that without this rebuttal testimony, he would have been entitled to a directed verdict of not guilty at the end of the State's case-in-chief. J.C. further contends that the Court need not even determine whether J.C. was "prejudiced" by his attorney's conduct because his attorney's representation was so deficient he should not be required to satisfy both prongs of the Strickland test.

¶ 16 The State counters that the cross-examination of R.C. had a beneficial purpose and was appropriate; counsel's questioning allowed the jury to infer that R.C. was improperly influenced to change his testimony during the court recess. Without the questioning, the jury would not have known that R.C. had spoken with several people associated with the State during the courtroom break.

¶ 17 R.C. initially testified that he did not tell anybody about what J.C. did to him. Although R.C. stated that someone touched his "privates," he would not say who had done it. He also denied that anyone put his or her mouth on his privates. At this point in R.C.'s testimony, the State requested a recess and R.C. left the courtroom. In the judge's chambers following the recess, the prosecutor stated that she had talked with R.C. during the recess. R.C. told the prosecutor that he wanted to sit on his foster mother's lap for the remainder of his testimony because he felt comfortable there. J.C.'s counsel objected to R.C. sitting on his foster mother's lap. J.C.'s counsel noted it appeared the State was attempting to have R.C. change his testimony by asking the same questions in a different environment (with R.C. sitting on his foster mother's lap). The court responded that J.C.'s counsel could examine "all the witnesses who appear about what contacts they've had and when those contacts have occurred and, if you believe that coaching has occurred, you may certainly inquire about those things."

¶ 18 The trial then resumed with R.C. sitting on his foster mother's lap for the remainder of his testimony. R.C.'s testimony changed from before the recess in that he told the court J.C. was the person who touched his privates with his hands and mouth. R.C. said that it happened a lot when no one else was around. R.C. stated that he told his mother about the behavior and she did not do anything about it. R.C. also said that J.C. told R.C. not to tell. R.C. believed that J.C. would be punished if he told. R.C. said that he told his counselor about the incidents.

¶ 19 J.C.'s counsel cross-examined R.C. about his change in testimony. He asked R.C. who he talked to during the break and if these people told him to say anything different from what he said before. R.C. responded that he was not telling the truth earlier but that now he was. On rebuttal, the State introduced R.C.'s prior consistent statements to others, pursuant to Rule 801(d)(1)(A) and (B), M.R.Evid. Although J.C.'s counsel objected, the court allowed witnesses to testify about prior statements R.C. had given.

¶ 20 The State called R.C.'s counselor as a rebuttal witness. She testified that during one of her interviews with R.C., he told her that J.C. had touched him several times and put his mouth on R.C.'s private parts. The State also called the licensed clinical psychologist who treated...