State v. Lamere
| Decision Date | 10 May 2005 |
| Docket Number | No. 04-110.,04-110. |
| Citation | 2005 MT 118,327 Mont. 115,112 P.3d 1005 |
| Court | Montana Supreme Court |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Robert Louis LAMERE, Jr., Defendant and Appellant. |
For Appellant: Kristina Guest, Assistant Appellate Defender, Helena, Montana.
For Respondent: Mike McGrath, Montana Attorney General, Tammy K. Plubell, Assistant Attorney General, Helena, Montana; Brant S. Light, Cascade County Attorney, Marvin Anderson, Deputy County Attorney, Great Falls, Montana.
¶ 1 Following a jury trial in the District Court of the Eighth Judicial District, Cascade County, Robert Louis Lamere, Jr. (Lamere) was convicted of aggravated assault and assault with a weapon. Lamere appeals. We reverse the conviction and remand this case to the District Court for a new trial. The sole issue on appeal is whether Lamere received effective assistance of counsel during voir dire of prospective jurors.
¶ 2 On May 23, 2002, the State filed an information charging Lamere with one count of aggravated assault and one count of assault with a weapon. These charges arose out of an altercation which occurred on May 5, 2002, at the Club Cigar in Great Falls, Montana. A one day trial was conducted in the District Court on August 11, 2003, and the jury found Lamere guilty on both counts. On January 12, 2004, the District Court rendered its sentence, after which Lamere appealed to this Court.
¶ 3 Lamere's claim of ineffective assistance arises out of his attorney's handling of the voir dire process. One of the individuals who served as a juror in Lamere's trial, Janet Whirry (Whirry), is the mother of Sarah Hollis (Hollis), a paralegal employed at the Cascade County Attorney's Office. Hollis sat at counsel table during voir dire, assisting the prosecuting attorney. Prior to the trial, Whirry had completed a juror questionnaire form which contained the question "Are you or any member of your immediate family involved in law enforcement in any official capacity?" Whirry answered "Yes" and explained "Daughter Sarah Hollis is a paralegal at County Attorney's Office — Great Falls Police Department retired." Lamere's court appointed counsel did not take notice of these answers. Thus, defense counsel did not question Whirry regarding any potential bias or prejudice that may have resulted from her relationship with Hollis or her connection to the Great Falls Police Department.
¶ 4 At the outset of defense counsel's voir dire, he likened the trial to a race between the State and Lamere, with the verdict representing the finish line. Pursuant to this analogy, counsel then asked prospective jurors who was ahead in the race. This inquiry was coupled with questions regarding the presumption of innocence in a criminal trial. Defense counsel's only questions to Whirry during voir dire focused on her understanding of this concept. In response, Whirry said that Lamere was ahead in the race because he was innocent until proven guilty. Whirry also said that the State could only pass Lamere in the race by presenting evidence convincing the jury of his guilt.
¶ 5 The only other questions posed to Whirry came from the State's attorney, who asked Whirry about her previous service as a juror. In response to these questions Whirry stated that she had served in a "murder" case where the jury reached a guilty verdict. Thus, Whirry did not disclose her relationship with Hollis or her connection to the Great Falls Police Department at any point in the voir dire proceedings. Ultimately, Whirry served on Lamere's jury, as neither the State nor Lamere's counsel raised a challenge for cause or exercised a peremptory challenge to remove her.
¶ 6 During the lunch recess, defense counsel was informed of Whirry's relation to Hollis, after which he moved to replace Whirry with the alternate juror. In doing so, defense counsel acknowledged his failure to take notice of the information in Whirry's juror questionnaire, stating:
[I]t's my responsibility for not picking that up. I have no reason from the questioning, obviously, to believe that Ms. Whirry can't be straightforward and balanced, however, I think the conflict is, in my view, extremely serious and extremely obvious. I take full responsibility for it, and the defendant certainly now is on notice that his attorney made a mistake. . . .
The State opposed the motion, arguing that Whirry had indicated she would be fair to both sides. The District Court denied the motion, observing that the State had not committed any wrongdoing, and stating that Whirry had given no indication of being biased or prejudiced.
¶ 7 The right to effective assistance of counsel is guaranteed by the Sixth Amendment to the United States Constitution, and by Article II, Section 24 of the Montana Constitution. State v. Kougl, 2004 MT 243, ¶ 11, 323 Mont. 6, ¶ 11, 97 P.3d 1095, ¶ 11. As we have previously stated, "[t]he effective assistance of counsel is critical to our adversarial system of justice; a lack of effective counsel may impinge the fundamental fairness of the proceeding being challenged." State v. Henderson, 2004 MT 173, ¶ 4, 322 Mont. 69, ¶ 4, 93 P.3d 1231, ¶ 4. Hence, a convicted defendant is entitled to a new trial upon establishing that defense counsel rendered ineffective assistance. See State v. Jefferson, 2003 MT 90, ¶ 57, 315 Mont. 146, ¶ 57, 69 P.3d 641, ¶ 57.
¶ 8 We review claims of ineffective assistance of counsel under the two-prong test enunciated in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Henderson, ¶ 4. Under the Strickland test, a convicted defendant bears the burden of demonstrating both that defense counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. This test is consistent with § 46-20-701(1), MCA, which provides that "[a] cause may not be reversed by reason of any error committed by the trial court against the convicted person unless the record shows that the error was prejudicial."
¶ 9 Claims of ineffective assistance of counsel constitute mixed questions of law and fact which we review de novo. Kougl, ¶ 12. In analyzing such claims, we must first consider whether the trial record is sufficient to determine whether counsel was ineffective. State v. Daniels, 2003 MT 247, ¶ 41, 317 Mont. 331, ¶ 41, 77 P.3d 224, ¶ 41. A trial record is sufficient for our review on direct appeal when it contains two essential components. First, the record must adequately document the challenged act or omission of defense counsel. State v. Harris, 2001 MT 231, ¶ 21, 306 Mont. 525, ¶ 21, 36 P.3d 372, ¶ 21. Second, the record must afford sufficient understanding of the reasons for counsel's act or omission, in order to answer the question of whether the alleged error expresses a trial strategy or tactical decision. Harris, ¶ 21. If the record does not supply the reason for counsel's act or omission, the claim must be raised in a petition for post-conviction relief, where a record can be developed to establish why the challenged act or omission occurred. Harris, ¶ 21. For example, in State v. Herrman, 2003 MT 149, 316 Mont. 198, 70 P.3d 738, we did not address a claim of ineffective assistance of counsel because the trial record did not disclose the reason for counsel's challenged omissions. Herrman, ¶ 34. As does Lamere in the instant appeal, the defendant in Herrman alleged that his counsel rendered ineffective assistance during voir dire by failing to develop information in the record demonstrating an individual juror's bias and by failing to exercise challenges for cause against those jurors expressing bias. Herrman, ¶ 20. In refusing to address that claim, we stated that such contentions would be more appropriately raised in a petition for post-conviction relief, Herrman, ¶ 34, noting that it would be improper for us to assume any reasons for counsel's actions or inactions, Herrman, ¶ 30.
¶ 10 In the case sub judice, the trial transcript contains a record of defense counsel's performance during voir dire which adequately documents the challenged omissions: (1) the failure to question Whirry regarding any potential bias or prejudice that may have resulted from her relationship with Hollis or her connection to the Great Falls Police Department; and (2) the failure to raise a challenge for cause or exercise a peremptory challenge to remove Whirry from the jury. Further, defense counsel's statements to the District Court, as recorded in the transcript, provide a clear explanation as to why these failures occurred. As such, the trial record is sufficient for our review of this claim. We now turn to our de novo review of Lamere's claim, applying the Strickland test.
¶ 11 Pursuant to the first prong of the Strickland test, a defendant must establish that counsel's performance was so deficient that counsel was not functioning as the "counsel" guaranteed under both the United States Constitution and the Montana Constitution. Henderson, ¶ 5. This requires a defendant to show that counsel's representation fell below an objective standard of reasonableness. State v. Lucero, 2004 MT 248, ¶ 15, 323 Mont. 42, ¶ 15, 97 P.3d 1106, ¶ 15.
¶ 12 There are countless ways to provide effective assistance in any given case, Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, and we indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, Henderson, ¶ 5. A convicted defendant claiming ineffective assistance of counsel must overcome the presumption that, under the circumstances, the challenged action could be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The deference we accord an attorney's conduct on review is such that we rarely grant...
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