STATE v ELLIOTT
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No. 85-432 I N THE SUPREME COURT O THE STATE O MONTANA F F 1986 STATE O MONTANA, F P l a i n t i f f and Respondent, -VS- STEVEN WADE ELLIOTT, Defendant and A p p e l l a n t . APPEAL F O : R M D i s t r i c t Court of t h e S i x t h J u d i c i a l D i s t r i c t , I n a.nd f o r t h e County o f Sweet G r a s s , The Honorable Byron Robb, Judge p r e s i d i n g . COUNSEL O RECORD: F For Appellant: Knuchel & McGregor; D a n i e l B. Montana McGregor, L i v i n g s t o n , For Respondent: Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana James M. S c h e i e r , A s s t . A t t y . G e n e r a l , Helena G. Thomas B i g l e n , County A t t o r n e y , Big Timber, Montana S u b m i t t e a on B r i e f s : J a n . Decided: Filed: April 24, APR 2 4 1986 B - Clerk 1986 3 0 , 1986 Mr. Justice Fred J. Weber delivered the Opinion of the Court. Defendant Mr. Elliott appeals his conviction of deliberate homicide in the District Court for Sweet Grass County, Montana. He was sentenced to a term of 100 years. We affirm. The issues are: 1. Was Mr. Elliott's right of due process violated at his sentencing hearing because matters not included in the presentence investigation report were considered.? 2. Was Instruction No. 11 properly given? 3. Was Mr. Elliott denied counsel because his attorney call witnesses, and effective assistance of 1) failed to investigate and 2) secured a waiver of speedy trial vrithout informing Mr. Elliott of the consequences of the waiver? In July 1976, the body of 86-year-old William Feldt was found sitting in a chair in his home in Big Timber, Montana. There were no signs of struggle in the house, and no visible injuries on the body. The coroner estimated that Mr. Feldt had been dead for about two days, and determined that he had died of natural causes. Because of the amount of time since death, the body was not embalmed, but was instead buried in a special air-space and water-tight container inside a casket. In May 1983, defendant, then 22 years old and incarcerated in the Lewis and Clark County Jail, contacted law enforcement authorities and gave a confession in which he said he had lcilled Mr. Feldt. He said he had been a paperboy in Rig Timber, and that Mr. Feldt, a neighbor, had been one of his customers. He went into Mr. Feldt's house to collect for the paper and when Mr. Feldt paid him, he noticed a large amount of money in Mr. Feldt's wallet. Defendant turned as if to leave, but remained in the house and hid in the kitchen f o r about 15 m i n u t e s . back t u r n e d , When he saw t h a t M r . d e f e n d a n t walked up behind him and s t a b b e d him i n t h e back w i t h a k n i f e . knife F e l d t had h i s still j.n his The o l d man f e l l i n t o a c h a i r , t h e back. Defendant s a t down in a chair a c r o s s t h e room " t o w a i t till he was d e a d , " t h e n walked o v e r t o t h e v i c t i m w i t h a n o t h e r k n i f e and c u t h i s t h r o a t . F e l d t ' s e y e s were s t i l l open, d e f e n d a n t poured a ing t h a t M r . b o t t l e of Notic- r u b b i n g a l c o h o l o v e r h i s head t o s e e i f h i s e y e s would b l i n k . He then took M r . Feldt's wallet, which had a b o u t $240 i n i t , withdrew t h e k n i f e from t h e v i c t i m ' s b a c k , and l e f t . He l a t e r b u r i e d t h e w a l l e t and t h r e w t h e k n i v e s i n t h e dump. Defendant M r . E l l i o t t repeated h i s confession i n w r i t i n g and f o r t h e Department o f J u s t i c e , w i t h minor v a r i a tions on where he Mr. a disposed of the wallet and the F e l d t ' s body was exhumed f o r e x a m i n a t i o n . pathologist wounds M r . testified that he had knives. At trial, found e v i d e n c e o f E l l i o t t had d e s c r i b e d , and t h a t M r . the F e l d t had d i e d from i n t e r n a l l o s s o f b l o o d c a u s e d by t h e s t a b wound t o h i s back. Other d e t a i l s o f M r . E l l i o t t ' s c o n f e s s i o n s were a l s o corroborated. At trial, Mr. Elliott recanted t e s t i f i e d t h a t h e had s e e n a 12-year o u t of Mr. Mr. Feldt's his confessions. He o l d a c q u a i n t a n c e walk house h o l d i n g a w a l l e t and some money. E l l i o t t t e s t i f i e d t h a t t h e a c q u a i n t a n c e t o l d him t o keep quiet, and gave h i m h a l f t h e money. t h i s a c q u a i n t a n c e was d e c e a s e d . Mr. A t t h e time of trial, Elliott testified that he had g i v e n t h e c o n f e s s i o n s f a l s e l y , and t h a t a t t h e t i m e he gave them he was s o d e p r e s s e d t h a t he wanted t o d i e . I Was M r . E l l i o t t ' s r i g h t o f due p r o c e s s v i o l a t e d a t h i s sentencing hearing because matters not included i n t h e pres e n t e n c e i n v e s t i g a t i o n r e p o r t were c o n s i d e r e d ? The presentence investigation report submitted to the District Court showed that Mr. Elliott had parole revoked in April 1.983 for "parole violation - concealed weapon." At the sentencing hearing, the District Court, over Mr. Elliott's objection, received into evidence a written report and additional testimony by defendant's former parole officer about the reasons that parole was revoked. Mr. Elliott contends that this constituted consideration of other violations or criminal activity and was error under State v. Stewart (1977), 175 Mont. 286, 573 P.2d 1138. In Stewart, the district judge personally interviewed several witnesses after trial. No record was made of the interviews and no notice was given that the interviews would be conducted. This Court held that the judge had improperly acted as a fact-gatherer and had infringed upon the defendant's due process right to confront his accusers. Stewart, 573 P.2d at 1148. Mr. Elliott's effort to apply the holding in Stewart to the facts of this case fails. The additional- information in this case was not obtained from the sentencing judge's independent investigation, but from the person who prepared the presentence investigation report. There is no due process right for a defendant to have advance notice of all facts that make up a sentencing recommendation. (Kont. 1985), 704 P.2d Mr. State v. Pearson 1056, 1060, 42 St.Rep. 1253, 1257. Elliott was represented by counsel at the sentencing hearing, had the opportunity to cross-examine the witness regarding the new material, had the opportunity to rebut the new material, and could have called for a continuance in order to call his own rebuttal witnesses. This situation, unlike the one in Stewart, does not present a due process violation. Was I n s t r u c t i o n No. 11 p r o p e r l y g i v e n ? The c o u r t i n s t r u c t e d t h e j u r y t h a t : Neither t h e prosecution nor t h e defense i s required t o c a l l a s witness a l l pers o n s who a r e shown t o have been p r e s e n t a t any o f t h e e v e n t s i n v o l v e d i n t h e e v i d e n c e , o r who may a p p e a r t o have some knowledge o f t h e m a t t e r s i n q u e s t i o n i n t h i s t r i a l ; nor i s t h e prosecution o r d.efense r e q u i r e d t o produce a s e x h i b i t s a l l o b j e c t s o r documents t h a t have been r e f e r r e d t o i n t h e testimony, o r t h e e x i s t e n c e o f which may have been s u g g e s t ed by t h e e v i d e n c e . The j u r y w i l l always b e a r i n mind t h a t t h e law n e v e r imposes upon a d e f e n d a n t i n a c r i m i n a l c a s e t h e burden o r d u t y o f c a l l i n g any w i t n e s s e s o r p r o d u c i n g any e v i d e n c e and no a d v e r s e i n f e r e n c e s may be drawn from h i s f a i l u r e t o do s o . M. r Elliott objects to this instruction, arguing that it a p p e a r s t o l e s s e n t h e burden o f p r o o f r e q u i r e d o f t h e S t a t e . The S t a t e a r g u e s t h a t t h e e f f e c t o f t h i s i n s t r u c t i o n i s t o a i d t h e jury i n e v a l u a t i n g t h e e v i d e n c e on t h e b a s i s o f what i s b e f o r e them, n o t on t h e b a s i s o f what h a s n o t been b r o u g h t b e f o r e them. type of C a l i f o r n i a h a s approved t h e u s e o f t h i s i n s t r u c t i o n f o r a number o f y e a r s . Reingold ( C a l i f . 1 9 4 8 ) , 197 P.2d 175, 1 9 1 . - People v . See The j u r y was a l s o i n s t r u c t e d s e p a r a t e l y on t h e burden o f p r o o f i n a criminal W e c o n c l u d e t h a t g i v i n g i n s t r u c t i o n No. 11 d i d n o t i n case. any way a f f e c t t h e S t a t e ' s burden o f p r o o f . g i v i n g i n s t r u c t i o n No. Was M r . because his Mr. 11 was n o t e r r o r . E l l i o t t denied e f f e c t i v e a s s i s t a n c e of counsel attorney w i t n e s s e s , and informing W hold t h a t e 2) 1) failed to investiga.te and call s e c u r e d a w a i v e r of speedy t r i a l w i t h o u t Elliott of the consequences o f t h e waiver? W ha-ve r e c e n t l y a d o p t e d a two-fold t e s t f o r d e t e r m i n i n g e whether e f f e c t i v e a s s i s t a n c e o f c o u n s e l was d e n i e d . S t a t e v. Robbins (Mont. 1985), 708 P.2d 227, 232, 42 St.Rep. 1440, 1444, citing Strickland v. Washington (1984), 1-04 S.Ct. 2052, 2064. First, the defendant must show that counsel's perfor- mance was deficient. This Court has used the "reasonably effective assistance" test of whether a defendant's counsel acted within the range of competence demanded of attorneys in criminal cases. P.2d 1074, 1081. deficient State v. Rose (1980), 187 Mont. 74, 86, 608 Second, the defendant must show that the performance prejudiced him so seriously as to deprive him of a fair trial. Defendant argues that he was denied effective assistance of counsel because his attorney failed to call as witnesses certain persons listed in the pretrial order. He alleges in his brief that his attorney failed to even contact these persons. Attached to his brief are his affidavit to that effect and another affidavit that defendant was on drugs when he made his confessions. We do not consider the affidavits because they are outside the record. State v. Dess (Mont. 1984), 674 P.2d 501, 502, 41 St.Rep. 31, 33. The decision to call or not call witnesses is a matter of trial tactics, which are normally not grounds for a determination tha-t counsel's performance was deficient. State v. Lopez (1980), 185 Mont. 187, 191, 605 P.2d 178, 180-1. The record fails to substantiate defendant's allegations that the witnesses not called could have presented evidence which would weaken his confessions and the corroborating evidence against him. Mr. Elliott's argument that he was uninformed of the consequences of his waiver of speedy trial is contradicted by the record. The record shows that the District Court judge explained to Mr. Elliott his right of speedy trial at the time the waiver was made, and that Mr. Elliott agreed to waive the right. Mr. Elliott later wrote to his attorney, asking that the waiver be rescinded. No such action was taken, but at the next hearing on motions in this matter, the District Court asked Mr. Elliott if he was satisfied with his counsel's performance, and he said that he was. We conclude that there is no evidence that counsel's performance was deficient in securing the waiver of speedy trial. Affirmed. We concur:
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