State v. Jenkins

• Decision Date: 01 May 2001
• Docket Number: No. 00-160.,00-160.
• Citation: 205 Mont. 2000,23 P.3d 201,2001 MT 79
• Parties: STATE of Montana, Plaintiff and Respondent, v. Paul Kenneth JENKINS, Defendant and Appellant.
• Court: Montana Supreme Court

23 P.3d 201

2001 MT 79

205 Mont. 2000

STATE of Montana, Plaintiff and Respondent, v. Paul Kenneth JENKINS, Defendant and Appellant.

No. 00-160.

Supreme Court of Montana.

Submitted on Briefs November 2, 2000.

Decided May 1, 2001.

For Appellant: Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena, MT.

For Respondents: Honorable Joseph P. Mazurek, Attorney General; Jim Wheelis, Assistant Attorney General, Helena, MT, Mike McGrath, County Attorney, Helena, MT.

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

¶ 1 On February 24, 1995, Paul Kenneth Jenkins (Jenkins) and his co-defendant, Freddie Joe Lawrence (Lawrence), were each convicted of deliberate homicide, aggravated kidnaping and robbery. This Court affirmed their convictions in State v. Lawrence (1997), 285 Mont. 140, 948 P.2d 186, and State v. Jenkins (1997), 285 Mont. 131, 948 P.2d 204. Following his appeal, Jenkins petitioned for postconviction relief, alleging that he was denied effective assistance of counsel because his trial counsel failed to make an objection at trial, on confrontation grounds, to the introduction of out-of-court statements made by his wife to police. The District Court denied his petition for postconviction relief, and Jenkins now appeals. We affirm.

FACTUAL BACKGROUND

¶ 2 The facts of the underlying conviction are set out in Lawrence and Jenkins. The case stems from the 1994 kidnaping and homicide of Donna Meagher, a bartender at the Jackson Creek Saloon in Montana City. Extensive publicity and a substantial reward for information led police to Lawrence, Jenkins and Jenkins' wife, Mary (Mary), who was a witness to the crime.

¶ 3 The police interviewed Mary five times. During these interviews, she made several statements inculpating Jenkins and Lawrence but also was unable to recall many details of the night in question. Mary has been diagnosed with dementia related to Alzheimer's disease and suffers from periodic memory lapses. In some interviews, she answered questions with declarative statements of fact. In others, even when asked the same or similar questions, Mary responded that she did not know or could not remember.

¶ 4 The District Court held a pretrial hearing to assess Mary's competency to testify. Dr. William Stratford, a psychiatrist retained by the defendants, testified that Mary's memory was profoundly impaired. Despite this infirmity, the trial court concluded that Mary knew the difference between truth and falsity, could express herself in court and was competent to testify. Lawrence, 285 Mont. at 156-57, 948 P.2d at 196. Jenkins did not appeal the trial court's determination of competency. Although he initially raised the issue in his petition for postconviction relief, he has since abandoned the issue on appeal.

¶ 5 At trial, Mary testified for the State. On direct examination, the prosecution asked her many of the same or similar questions asked of her during her pretrial interviews. Although she answered some questions definitively, most of her testimony was that she did not know or could not remember. On cross-examination, Mary often retracted the definitive answers she gave on direct, saying again that she could not remember. She testified that she could remember the circumstances of some interviews, but not others. Lawrence, 285 Mont. at 156, 948 P.2d at 196. Following her testimony, the District Court allowed the prosecution to introduce the content of Mary's pretrial statements through the testimony of the interviewing officers under Rule 801(d)(1)(A), M.R.Evid., Montana's prior inconsistent statement exception to the hearsay rule. Lawrence, 285 Mont. at 156-57, 948 P.2d at 196. Both defendants objected to admission of these statements on evidentiary grounds.

¶ 6 On appeal, Jenkins claimed that the District Court erred when it admitted evidence of Mary's prior statements under the prior inconsistent statement exception to the hearsay rule. Jenkins also claimed that Mary's memory loss effectively precluded effective cross-examination and admission of her prior statements denied his Sixth Amendment right to confront witnesses against him. This Court held that the District Court properly admitted Mary's prior statements under Rule 801(d)(1)(A), M.R.Evid., and our holding in State v. Devlin (1991), 251 Mont. 278, 281-82, 825 P.2d 185, 187. Lawrence, 285 Mont. at 159, 948 P.2d at 197. Since no objection had been made to the introduction of Mary's statements on confrontation grounds, we held that the issue had not been properly preserved for appellate review. Lawrence, 285 Mont. at 163, 948 P.2d at 200; Jenkins, 285 Mont. at 138, 948 P.2d at 208.

¶ 7 In his petition for postconviction relief, Jenkins claims he was denied effective assistance of counsel because his attorney should have objected to the admission of Mary's testimony on confrontation grounds, thereby preserving the issue for appeal. The District Court denied Jenkins' petition, holding that there was no confrontation clause violation and an objection, if made, would not have affected the outcome of the trial. It is this ruling that Jenkins now appeals.

ISSUE

¶ 8 Did his attorney's failure to object to the admission of Mary's prior statements, on confrontation grounds, deny Jenkins effective assistance of counsel?

STANDARD OF REVIEW

¶ 9 The standard of review of a district court's denial of a petition for postconviction relief is whether the district court's findings of fact are clearly erroneous and whether its conclusions of law are correct. State v. Charlo, 2000 MT 192, ¶ 7, 300 Mont. 435, ¶ 7, 4 P.3d 1201, ¶ 7; State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, ¶ 9, 988 P.2d 299, ¶ 9.

DISCUSSION

¶ 10 The crux of Jenkins' petition is that his trial counsel was ineffective because she failed to preserve the confrontation clause issue for appeal. He argues that Mary's poor memory precluded the full and effective cross-examination required by the confrontation clause and a timely objection would have changed the outcome of the trial. The State responds that Jenkins' trial counsel was not ineffective because an objection on confrontation grounds would have correctly been denied. Jenkins' right to confront witnesses, the State insists, was satisfied by his opportunity to cross-examine Mary and to demonstrate to the jury her poor and unreliable memory. We agree.

¶ 11 In considering ineffective assistance of counsel claims, whether on direct appeal or in a postconviction proceeding, we apply the two-pronged test set forth by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See Dawson v. State, 2000 MT 219, ¶ 20, 301 Mont. 135, ¶ 20, 10 P.3d 49, ¶ 20. Strickland's two-part test requires the defendant to show that his counsel's performance was deficient and that the deficient performance prejudiced the defense and deprived the defendant of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Where the ineffective assistance of counsel claim is predicated on a failure to object at trial, the defendant must show that an objection would have been proper and would have been sustained. State v. Rodgers (1993), 257 Mont. 413, 421, 849 P.2d 1028, 1033; Kills on Top v. State (1995), 273 Mont. 32, 51, 901 P.2d 1368, 1380. Therefore, in order to prevail in his ineffective assistance of counsel claim, Jenkins must show that the introduction of Mary's pretrial statements violated his right to confront witnesses against him.

¶ 12 The confrontation clause of the Sixth Amendment provides that the accused has the right "to be confronted with the witnesses against him." This protection applies to criminal prosecutions in both state and federal courts. See Pointer v. Texas (1965), 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (applying the Sixth Amendment to the states). Historically, the primary object of the clause was to prevent prosecution on the basis of depositions or ex parte affidavits. See Mattox v. United States (1895), 156 U.S. 237, 242-43, 15 S.Ct. 337, 339, 39 L.Ed. 409. More recent decisions have addressed the kind of out-of-court statements that give rise to confrontation clause issues and the opportunity for cross-examination required to comport with a defendant's right to confront witnesses against him.

¶ 13 The United States Supreme Court addressed the implications of admitting prior inconsistent statements on a defendant's right to confrontation in California v. Green (1970), 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489. In Green, the defendant was charged with supplying drugs to Porter for resale. Porter testified at Green's preliminary hearing, naming Green as his supplier. At trial, despite admitting he made the earlier statement, Porter testified that he was unable to remember how he obtained the drugs because he was on LSD at the time. Porter's preliminary hearing testimony was admitted as substantive evidence under the prior inconsistent statement exception to the hearsay rule, and Green was convicted. On review, the Supreme Court concluded that the "Confrontation Clause is not violated by admitting a declarant's out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination." Green, 399 U.S. at 158, 90 S.Ct. at 1934-35, 26 L.Ed.2d at 497 (emphasis added). Our own cases adhere to this general rule. See State v. Maier, 1999 MT 51, ¶ 20, 293 Mont. 403, ¶ 20, 977 P.2d 298, ¶ 20; State v. Charlo (1987), 226 Mont. 213, 215, 735 P.2d 278, 279; State v. Bell (1987), 225 Mont. 83, 90, 731 P.2d 336, 341; State v. Pease (1986), 222 Mont. 455, 463, 724 P.2d 153, 158; State v. Fitzpatrick (1980), 186 Mont. 187, 204, 606 P.2d 1343, 1352-53.

¶ 14 Jenkins maintains, citing the United States Supreme Court's recent decision in Lilly v. Virginia (1999), 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117, that the confrontation clause prohibits admission of out-of-court statements...