Weaver v. State

• Decision Date: 21 June 2005
• Docket Number: No. 04-272.,04-272.
• Citation: 327 Mont. 441,114 P.3d 1039,2005 MT 158
• Parties: William Larry WEAVER, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.
• Court: Montana Supreme Court

114 P.3d 1039

2005 MT 158

327 Mont. 441

William Larry WEAVER, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.

No. 04-272.

Supreme Court of Montana.

Submitted on Briefs April 26, 2005.

Decided June 21, 2005.

For Appellant: Morgan Modine, Missoula, Montana.

For Respondent: Mike McGrath, Attorney General; Jim Wheelis, Assistant Attorney General, Helena, Montana, Fred Van Valkenburg, Missoula County Attorney; Kirsten H. LaCroix, Deputy County Attorney, Missoula, Montana.

Justice BRIAN MORRIS delivered the Opinion of the Court.

¶ 1 William Larry Weaver (Weaver) appeals from the denial by the Fourth Judicial District Court, Missoula County, of his Petition for Postconviction Relief asserting ineffective assistance of counsel. We affirm.

¶ 2 Weaver raises the following issues on appeal:

¶ 3 1. Whether the District Court erred in rejecting Weaver's claim that defense counsel was ineffective when she failed to interview potential witnesses with alleged exculpatory testimony.

¶ 4 2. Whether the District Court correctly concluded that defense counsel was not ineffective when she failed to call potential witnesses to testify and instead presented their alleged exculpatory evidence through the State's chief witness.

¶ 5 3. Whether the District Court erred when it found defense counsel's failure to offer a potentially exculpatory forensic entomological report at trial did not rise to the level of ineffective assistance of counsel.

BACKGROUND

¶ 6 Weaver confessed killing James Fremou (Fremou) to Anthony "Shorty" Dye (Dye), his Georgia prison cellmate. Dye contacted Montana authorities and informed them of Weaver's confession. The State charged Weaver with deliberate homicide and transported him to Missoula for trial.

¶ 7 The District Court appointed Margaret Borg (Borg) of the Public Defender's office to represent Weaver. Borg received police reports and taped interviews demonstrating the existence of potential alibi witnesses, other suspects, and persons who allegedly heard confessions by persons other than Weaver. Although Borg did not contact or interview any of those potential witnesses before trial, she did bring two inmates from the Georgia prison to testify in order to impeach Dye's credibility.

¶ 8 The State argued that Weaver killed Fremou on October 9, 1993. The State sent maggots discovered during the autopsy on Fremou's body to the Washington State University Forensic Entomology Laboratory in Pullman, Washington, to confirm the date of Fremou's death. E.P. Catts, Ph.D. (Catts), produced an entomological report (the Catts report) that concluded, however, that Fremou died sometime after October 13, 1993. This date conflicted with the State's theory that Fremou had been killed on October 9, 1993 — a date before the Catts report estimated as Fremou's date of death. The State also theorized that Weaver used a rifle owned by John McKean (McKean) to shoot Fremou — a rifle that McKean pawned on October 11, 2003 — again, a date before the Catts report estimated that Fremou had died. McKean did not testify as both parties apparently were unaware of his whereabouts at the time of trial. The State's chief investigator and witness, Captain Gerald Crego (Crego), did tell the jury that McKean's gun had been pawned and provided other relevant testimony about McKean's possible involvement in the matter.

¶ 9 Both Borg and the State discovered the day before trial that the entomologist, Catts, had died approximately eight months before the State had listed him as a witness. The State sought to use a new expert witness, Dr. Neal Haskell (Haskell), to support its theory regarding the date of Fremou's death. Borg met with Haskell immediately before trial and discovered that he had reached a different conclusion from Catts regarding the age of the maggots and the corresponding time of Fremou's death that proved consistent with the State's theory. The State requested a continuance so it could have Haskell prepare a new report for use at trial.

¶ 10 Borg, in consultation with Weaver, argued against the State's request for a continuance. The District Court denied the State's request for a continuance and made Haskell available only as a foundation witness for the Catts report. Borg recognized, however, that allowing Haskell to serve as a foundation witness for the Catts report placed Weaver at risk of the State later using Haskell as a potential rebuttal witness who would contradict the Catts report regarding Fremou's time of death. Borg elected not to offer the Catts report as evidence and Haskell did not testify.

¶ 11 The jury convicted Weaver of deliberate homicide and the District Court sentenced him to life in prison without the possibility of parole with an additional ten years added for use of a firearm. We affirmed Weaver's sentence in State v. Weaver, 2001 MT 115, 305 Mont. 315, 28 P.3d 451, but declined to address his ineffective assistance of counsel claim as the trial record failed to provide an explanation for Borg's alleged ineffective acts or omissions. Weaver, ¶ 14.

¶ 12 Weaver filed his petition for postconviction relief claiming that his conviction resulted from Borg's ineffective assistance. The District Court held a hearing where Borg, Crego, Weaver, and Gloria Jean Clark, a potential witness for Weaver's trial, all testified. Weaver also obtained what he represented to be an affidavit from McKean in which McKean asserted that he did not provide his gun to Weaver. The District Court denied Weaver's attempt to introduce McKean's affidavit, however, because it determined that McKean's affidavit had not been authenticated, and therefore, proved to be neither credible nor material to the proceedings. The District Court rejected all of Weaver's claims based on its finding that Borg had engaged in reasonable tactical trial decisions and, therefore, had not been ineffective. Weaver appeals.

STANDARD OF REVIEW

¶ 13 We review a district court's denial of a petition for postconviction relief to determine whether the court's findings of fact are clearly erroneous and whether its conclusions of law are correct. Clausell v. State, 2005 MT 33, ¶ 10, 326 Mont. 63, ¶ 10, 106 P.3d 1175, ¶ 10 (citation omitted). Claims of ineffective assistance of counsel constitute mixed questions of law and fact that we review de novo. Clausell, ¶ 10.

DISCUSSION

¶ 14 The Sixth Amendment of the United States Constitution and Article II, Section 24, of the Montana Constitution guarantee the right to effective assistance of counsel. We have adopted the two-part test of Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, to evaluate ineffective assistance of counsel claims. Clausell, ¶ 19 (citing State v. Kougl, 2004 MT 243, ¶ 11, 323 Mont. 6, ¶ 11, 97 P.3d 1095, ¶ 11).

¶ 15 Under this test Weaver first must demonstrate that his counsel's actions fell below an objective standard of reasonableness or were deficient. Clausell, ¶ 19. Weaver must overcome a strong presumption that his counsel's defense strategies and trial tactics fall within a wide range of reasonable and sound professional decisions. Clausell, ¶ 19. If Weaver meets the first prong, he then must show that his counsel's deficient performance prejudiced him to the extent that a reasonable probability exists that the result of the proceeding would have been different had counsel not performed ineffectively. Clausell, ¶ 19. A reasonable probability means a probability sufficient to undermine confidence in the outcome, but it does not require that a defendant demonstrate he would have been acquitted. Clausell, ¶ 19.

FAILURE TO INTERVIEW WITNESSES

¶ 16 Weaver complains that Borg's failure to speak with any of the potential witnesses that he provided or familiarize herself with the actual reports and tape recordings made by investigators created omissions of exculpatory facts that could have been presented at trial — omissions that prejudiced his case. "A claim of failure to interview a witness may sound impressive in the abstract, but it cannot establish ineffective assistance when the person's account is otherwise fairly known to defense counsel." State v. Thomas (1997), 285 Mont. 112, 119, 946 P.2d 140, 144 (quoting United States v. Decoster (D.C.Cir.1976), 624 F.2d 196, 209).

¶ 17 In Thomas, another deliberate homicide case, we determined that the defendant did not prove his counsel ineffective simply because counsel failed to conduct an independent investigation into possible exculpatory evidence. We noted defense counsel's duty either "to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Thomas, 285 Mont. at 119,946 P.2d at 144 (quoting Strickland, 466 U.S. at 691,104 S.Ct. at 2066). We assess a decision not to investigate for reasonableness in light of all of the circumstances of the case, "applying a heavy measure of deference to counsel's judgments." Thomas, 285 Mont. at 118,946 P.2d at 143.

¶ 18 We likewise find Borg's decisions in this matter to be reasonable in light of the circumstances. A review of the record demonstrates that Borg knew the possible accounts of exculpatory testimony that may have been solicited from Weaver's list of potential witnesses. Borg further testified that "[t]here were lots of witnesses in this case that said so-and-so told me this. So-and-so told me that. Someone confessed. Someone said they were there. Someone said this and that and something else. Crego had followed all of those leads," and conceded at trial that the State had considered other suspects.

¶ 19 It appears that Borg weighed all of the possible exculpatory testimony in light of the "squirrelly" characters of Weaver's potential witnesses and made a "reasonable decision" that investigating those witnesses proved unnecessary. Thomas, 285 Mont. at 119, 946 P.2d at 144. This decision seems particularly apt given that Borg elicited similar exculpatory...