State v. Johnson, 85-93

• Decision Date: 05 June 1986
• Docket Number: No. 85-93,85-93
• Citation: 719 P.2d 771,221 Mont. 384,43 St.Rep. 913
• Parties: STATE of Montana, Plaintiff and Respondent, v. Patricia Merritt JOHNSON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 771

719 P.2d 771

221 Mont. 384

STATE of Montana, Plaintiff and Respondent, v. Patricia Merritt JOHNSON, Defendant and Appellant.

No. 85-93.

Supreme Court of Montana.

Submitted on Briefs Feb. 26, 1986.

Decided June 5, 1986.

Anthony F. Keast, Missoula, for defendant and appellant.

Mike Greely, Atty. Gen., Dorothy McCarter, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Co. Atty., Missoula, Karen Townsend, Deputy Co. Atty., for plaintiff and respondent.

GULBRANDSON, Justice.

Following a jury verdict convicting Patricia Merritt Johnson of felony theft, the Missoula County District Court sentenced her to five years in prison with four years suspended and ordered her to pay restitution. Johnson appeals raising one issue; i.e., whether she received the effective assistance of counsel. We affirm the conviction.

In 1981 appellant worked for the Montana State Department of Highways as a Gross Vehicle Weight (GVW) enforcement officer. She worked at a highway scales station near Missoula, Montana. Generally, the duties of such an employee are to inspect trucks for vehicle registration and fuel requirements, to weigh and measure vehicles, to determine if a vehicle requires a permit or special license, and to sell such permits and licenses as the vehicles require. These employees are required to deposit the money they collect in the State Treasurer's account in local banks.

In October 1981 appellant resigned her position with the Department of Highways. The Department has a procedure for "checking out" GVW employees upon their resignation. The employees turn in their uniforms and the remaining permits and licenses which have been issued to them. Following appellant's resignation, the State discovered that several of the permits issued to appellant were unaccounted for. These permits were not returned to the State after appellant resigned nor was there a record of the deposit of money from their sale. State officials spoke with appellant, who was then living in New Mexico, by phone about the missing permits. The State conducted a further audit of appellant's work record. This audit showed that other work reports required of appellant were missing. The audit also showed that appellant had sold permits but that there was no record that appellant had deposited the money in the State's account. The audit concluded that appellant collected $2,082.97 of State revenues which had never been accounted for. The audit further concluded that there was $82.00 worth of unaccounted for permits.

In October 1981 two Highway Department employees spoke with appellant about the missing documents. They both testified at trial that appellant assured them that she had all the missing permits and documents to clear her of suspicion. They both testified that the State never received any of this exculpatory material. Mike McMeekin, a deputy sheriff in Missoula, spoke with appellant in 1981 and testified that she claimed to have documents which would clear up any suspicions of her. McMeekin stated that he was to meet with appellant but that she did not show up or otherwise provide the police with the exculpatory material. Tom Adamo, an investigator with the Montana Criminal Investigation Bureau, gave testimony similar to the above comments of McMeekin.

Appellant did not account for the missing funds and permits and, as a result, she was arrested in New Mexico and returned to Montana to face the felony theft charge. She was initially arraigned in Missoula on this charge in October 1982. During a fourteen month period, appellant signed three waivers of speedy trial and her trial was delayed for some time. Appellant waived the right to a speedy trial apparently hoping her counsel could negotiate an out of court settlement. The State offered a plea bargain which provided that in return for a plea of guilty to felony theft, the State would recommend a two year deferred sentence plus restitution of $2,500. Appellant was unable to raise that amount although she had a year to do so. Finally, appellant decided to assert her innocence and go to trial on the charge.

The District Court held appellant's trial on September 11 and 12, 1984. Shortly before trial, appellant and her counsel met before the court reporter to discuss the case while on the record. Counsel advised appellant that in her professional opinion it would be best to wait until the conclusion of the State's case-in-chief before deciding whether appellant would testify in her own defense.

At trial, counsel for appellant initially reserved her opening statement. The State presented its case-in-chief and established the facts surrounding the missing funds and permits. The State could not show what actually happened to the missing items and relied mainly on circumstantial evidence to prove its case. During the trial, the State elicited testimony showing that in 1977 Highway Department officials were unable to account for $147.50 in cash and permits that appellant was responsible for. Appellant's counsel did not object to this evidence. Following the State's case-in-chief, appellant and her counsel held another private discussion on the record to make strategic decisions. At that time, appellant's counsel stated that her professional opinion was that appellant should not take the stand; that appellant had the constitutional right to not take the stand; that it was appellant's decision whether or not to testify; that appellant did not have plausible answers for some of the questions the county attorney might ask; that, in her opinion, the potential harm in answering the county attorney's questions outweighed any harm in not testifying; and that she did not see the need to call any witnesses on the appellant's behalf. The appellant decided of her own volition not to testify. After returning to the courtroom, appellant's counsel declined to call any witnesses and waived her opening statement.

In her closing argument, defense counsel advanced appellant's defenses to the theft charge. First, counsel vigorously attacked the accuracy of the State's audit. Counsel also argued that the State had not proved that appellant had the requisite intent (purposely or knowingly committing the offense) to be convicted of the offense. Counsel pointed out that the State only learned of the missing funds through appellant's daily reports reporting the sales of permits and collection of money therefrom. Counsel argued that it was inconsistent for appellant to report the sales on the one hand and then misappropriate the money (which had been reported) on the other hand. Lastly, counsel argued that if appellant failed to meet with State officials to clear up the matter, it was only because of miscommunication and the fact that appellant lived so far away in New Mexico.

The jury found appellant guilty of felony theft. After sentencing, this appeal followed. The only issue is whether the conviction must be overturned because ineffective assistance of counsel deprived appellant of a fair trial.

The Sixth Amendment of the United States Constitution and Art. II, § 24 of the Montana Constitution guarantee the right to counsel to a defendant in Montana. The right to counsel is recognized as a right to the effective assistance of counsel. McMann v. Richardson (1970), 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763; State v. Bubnash (1961), 139 Mont. 517, 366 P.2d 155. The United States Supreme Court, in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, recently stated what a defendant must show to gain reversal of his conviction where he claims ineffective assistance of counsel.

First, the defendant must show that counsel's performance was deficient. This requires...