State v. Edwards

                                                                                          August 30 2011


                                         DA 10-0399

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2011 MT 210


STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

RICHARD PHELPS EDWARDS,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Twenty-Second Judicial District,
                      In and For the County of Stillwater, Cause No. DC 09-017
                      Honorable Blair Jones, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Colin M. Stephens; Smith & Stephens, P.C., Missoula, Montana

               For Appellee:

                      Steve Bullock, Montana Attorney General; John Paulson, Assistant
                      Attorney General, Helena, Montana

                      John Petak, III, Stillwater County Attorney, Columbus, Montana;
                      Barbara Harris, Assistant Attorney General, Special Deputy County
                      Attorney for Stillwater County




                                                  Submitted on Briefs: July 20, 2011

                                                              Decided: August 30, 2011

Filed:

                      __________________________________________
                                        Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1      Richard Edwards appeals from his conviction in the District Court, Twenty-

Second Judicial District, Stillwater County. We affirm.

                                            ISSUES

¶2      Edwards raises three issues on appeal:

¶3      1. Whether the District Court erred when it denied Edwards’ motion in limine to

        prevent his wife from testifying at trial.

¶4      2. Whether Edwards was denied effective assistance of counsel.

¶5      3. Whether the District Court erred when it failed to inquire into Edwards’ motion

        for new counsel.

                                          BACKGROUND

¶6      On April 27, 2009, the State filed an information charging Edwards with the

deliberate homicide of Daniel Lavigne. Lavigne had been found shot at his residence in

2002.    The State subsequently filed an amended information, adding one count of

tampering with physical evidence.

¶7       On November 2, 2009, prior to trial, Edwards filed a motion in limine to prevent

his wife, Sherry Edwards, from testifying based on spousal privilege.        Specifically,

Edwards sought to exclude Sherry’s testimony concerning (1) observations of Edwards’

conduct at the time Lavigne was shot, and (2) statements made by Edwards to Sherry that

were accompanied by threats. Edwards, the State and the District Court all agreed to

apply the 2001 versions of §§ 26-1-802, and 46-16-212, MCA, regarding spousal


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privilege, because the alleged homicide had occurred in 2002. On January 13, 2010, the

District Court denied Edwards’ motion.             The District Court concluded, “relevant

evidence of Sherry’s [sic] Edwards’ observations of the alleged homicide together with

any relevant communication between spouses regarding the alleged homicide delivered

or accompanied by a threat is not excludable as evidence at trial on either a competency

or spousal privilege basis.”

¶8     At trial, the defense examined Sherry twice, once during cross-examination, and

once during Edwards’ case-in-chief.        Throughout questioning, the defense sought to

portray Sherry as unreliable and repeatedly challenged her credibility as a witness. At the

outset of cross-examination, defense counsel explained, “I’ll be kind of winging it,

because I wasn’t expecting to actually talk to you until tomorrow.” Defense counsel

proceeded to elicit that Sherry had lied to investigating officers, had a shifting memory of

details and had made numerous prior inconsistent statements. One exchange provided:

       [Defense]:              And I know this is very difficult. You went through a
                               very long, long series of statements whereby you said
                               he had laid out two to three days?
       [Sherry]:               Yes, ma’am.
       [Defense]:              And you had even sworn upon your dead father?
       [Sherry]:               Yes, ma’am, I did.
       [Defense]:              And your father meant everything to you, didn’t he?
       [Sherry]:               Yes, he did. Yes, he did.
       [Defense]:              So even upon your dead father, you lied?
       [Sherry]:               Yes, Ma’am, I did. And I regret that terribly. I was
                               trying to protect my mother.
       [Defense]:              I’m not asking anything if you could just. . . . And I’m
                               sorry. I’m not as fast or quite as prepared as I had
                               anticipated being. I had honestly not anticipated you
                               testifying until tomorrow. And so I was kind of in pre-
                               prep.


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(Emphasis added.)      Following that exchange, Sherry conceded there were many

inaccuracies in the written statement she provided to law enforcement personnel.

¶9     During Edwards’ case-in-chief, defense counsel continued to attack Sherry’s

credibility, focusing on her inconsistent prior versions of the events surrounding

Lavigne’s death. Additionally, defense counsel accused Sherry of bias, asserting she

changed her story only after Edwards left her and moved in with another woman.

Edwards concedes that defense counsel did a “yeoman’s job” in re-examining Sherry.

¶10    On March 26, 2010, a jury found Edwards guilty of deliberate homicide and

tampering with physical evidence. On April 22, 2010, prior to sentencing and still

represented by counsel, Edwards filed a pro se motion entitled “Motion for new counsel

and a new trial.” He articulated a number of reasons why he felt trial counsel had been

ineffective. The District Court forwarded the motion to both the State and defense,

requesting that “defense counsel review the motion and take such action that counsel

deems appropriate.” No further action was taken.

¶11    On June 1, 2010, Edwards appeared at a sentencing hearing with the same defense

counsel who represented him at trial. He received a 100-year term of incarceration in the

Montana State Prison with a 50-year restriction on parole eligibility. Edwards filed a

timely appeal to this Court.

                               STANDARDS OF REVIEW

¶12    A district court’s ruling on a motion in limine is an evidentiary ruling that this

Court reviews for an abuse of discretion. State v. Meredith, 2010 MT 27, ¶ 42, 355

Mont. 148, 226 P.3d 571. Where that ruling is based on interpretation of a statute, we

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review the district court’s interpretation de novo and its application for abuse of

discretion. State v. Guill, 2010 MT 69, ¶ 25, 355 Mont. 490, 228 P.3d 1152.

¶13    “Ineffective assistance of counsel claims raise mixed questions of law and fact that

we review de novo.” State v. Savage, 2011 MT 23, ¶ 20, 359 Mont. 207, 248 P.3d 308.

¶14    “Absent an abuse of discretion, this Court will not overrule a district court’s ruling

on a request for substitution of counsel, which is within the sound discretion of the

district court.” State v. Hendershot, 2007 MT 49, ¶ 19, 336 Mont. 164, 153 P.3d 619.

                                      DISCUSSION

¶15    Whether the District Court erred when it denied Edwards’ motion in limine to

exclude the testimony of his wife.

¶16    As a threshold matter, we conclude that the District Court should have applied the

2009 version of § 26-1-802, MCA, instead of the 2001 version. In criminal actions,

Montana has two statutorily-enacted spousal privileges, §§ 26-1-802 and 46-16-

212(1)(a), MCA.1 State v. Roberts, 194 Mont. 189, 192, 633 P.2d 1214, 1216 (1981). A

rule of testimonial disqualification that gives a party-spouse the power to grant or

withhold consent to another spouse’s testimony is a privilege. Trammel v. United States,

445 U.S. 40, 44, 100 S. Ct. 906, 909 (1980). As this Court has previously concluded that

the spousal privilege contained in § 46-16-212, MCA, is procedural, State v. Moore, 254

Mont. 241, 247, 836 P.2d 604, 608 (1992), we conclude that § 26-1-802, MCA, is

1
  Section 46-16-212(1)(a), MCA, provides a spousal privilege to withhold consent:
“Neither spouse may testify to the communications or conversations between spouses
that occur during their marriage unless: (a) consent of the defendant-spouse is obtained.”
The District Court correctly analyzed § 46-16-212, MCA, and that ruling has not been
challenged on appeal.
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procedural as well. As spousal privileges govern whether a spouse may offer testimony

against the other spouse, they concern trial and pre-trial procedure. Procedural statutes

“in effect at the time that a case proceeds to trial are the rules that are to be applied to the

resolution of that dispute.” Wolfe v. Webb, 251 Mont. 217, 227, 824 P.2d 240, 246

(1992); Moore, 254 Mont. at 247, 836 P.2d at 608. Edwards filed the motion in limine in

November 2009. The District Court should have applied the 2009 version of § 26-1-802,

MCA. However, we will uphold a district court that reaches the right result for the wrong

reason. State v. Parrish, 2010 MT 196, ¶ 11, 357 Mont. 375, 239 P.3d 957.

¶17    Applying the 2009 spousal privilege to this case, we conclude that the District

Court did not err when it permitted Sherry’s testimony about (1) observations of

Edwards’ actions, and (2) Edwards’ marital communications regarding Lavigne’s murder

that were accompanied by threats. The 2009 version of § 26-1-802, MCA, provides:

       Neither spouse may, without the consent of the other, testify during or after
       the marriage concerning any communication made by one to the other
       during their marriage. The privilege is restricted to communications made
       during the existence of the marriage relationship and does not extend to
       communications made prior to the marriage or to communications made
       after the marriage is dissolved. The privilege does not apply to a civil action
       or proceeding by one spouse against the other or to a criminal action or
       proceeding for a crime committed by one spouse against the other or
       against a child of either spouse.

Each spouse has the statutory privilege to withhold consent, preventing the other spouse

from testifying to marital communications. State v. Nettleton, 233 Mont. 308, 317, 760

P.2d 733, 739 (1988) (where husband withheld consent, § 26-1-802, MCA, prevented ex-

wife from testifying that husband had admitted to homicide while they were married).



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¶18     Under the 2009 version of § 26-1-802, MCA, it was not error to permit Sherry’s

testimony about her observations of Edwards’ actions at the time of Lavigne’s murder.

Sherry could testify about observations of Edwards’ actions without his consent, because

Edwards’ conduct did not constitute communications. The spousal privilege in § 26-1-

802, MCA, extends to, “any communication made by one [spouse] to the other during

their marriage.” Section 26-1-802, MCA (emphasis added). The “communication for

which privilege is sought must be an utterance or other expression intended to convey a

message to the other spouse.” Nettleton, 233 Mont. at 314, 760 P.2d at 737. A spouse’s

conduct alone does not constitute a “communication” for the purpose of § 26-1-802,

MCA. Nettleton, 233 Mont. at 313, 760 P.2d at 737.

¶19   Nor did the District Court err when it determined that spousal privilege did not

extend to Edwards’ communications that were accompanied by threats towards Sherry.

For a communication between spouses to be privileged, it must be (1) an utterance or

other expression intended to convey a message between spouses, and (2) intended to be

confidential “in that it was conveyed in reliance on the confidence of the marital

relationship.” Nettleton, 233 Mont. at 317, 760 P.2d at 739. A spouse does not rely on

the confidence of the marital relationship when the purpose of the communication is to

“terrify and intimidate” the other spouse. Nettleton, 233 Mont. at 317, 760 P.2d at 739.

¶20   Edwards’ threats towards Sherry were not made in reliance of their marital

relationship. At the motion in limine hearing, Sherry testified that Edwards “pulled a

shotgun and put it in my face and told me if I ever went to the cops, or ever told anyone,

that he would kill me, kill my family, and burn my grandmother’s house down.” A

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husband who attempts to secure the silence of his wife by pointing a gun at her,

threatening both her life and home of her grandmother, has failed to communicate in

reliance on the confidence of the marital relationship. The District Court did not err

when it determined that Edwards’ communications accompanied by threats were not

privileged under § 26-1-802, MCA.

¶21    Whether Edwards was denied effective assistance of counsel.

¶22    Edwards asserts he was denied effective assistance because defense counsel twice

conceded her lack of preparation in front of the jury: (1) “I’ll be kind of winging it,

because I wasn’t expecting to actually talk to you until tomorrow,” and (2) “I’m sorry,

I’m not as fast or quite as prepared as I had anticipated being. I had honestly not

anticipated you testifying until tomorrow. And so I was kind of in pre-prep.” This Court

evaluates claims of ineffective assistance of counsel (IAC) based on the two-prong test

set forth in Strickland v. Washington, 466 U.S. 688, 104 S. Ct. 2052 (1984). Savage, ¶

22. To succeed on a claim of IAC, a criminal defendant must demonstrate (1) that

counsel’s performance was deficient, and (2) the deficient performance was prejudicial to

the defense. State v. Lindsey, 2011 MT 46, ¶ 43, 359 Mont. 362, 249 P.3d 491. Failure

of either prong is fatal to an IAC claim. Lindsey, ¶ 43. Furthermore, a court need not

address the two prongs in any specific order. Becker v. State, 2010 MT 93, ¶ 11, 356

Mont. 161, 232 P.3d 376. Where it is easier to dispose of an IAC claim on the prejudice

prong, that course should be followed. Becker, ¶ 11; Strickland, 466 U.S. at 697, 104 S.

Ct. at 2069.



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¶23    We need not pass judgment on whether defense counsel’s conduct was deficient,

because Edwards’ allegations fail to establish prejudice.       To establish prejudice, a

defendant must show a “‘reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.’” Becker, ¶ 11 (quoting

Strickland, 466 U.S. at 697, 104 S. Ct. at 2068). “‘A reasonable probability is a

probability sufficient to undermine confidence in the outcome.’” Becker, ¶ 11 (quoting,

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).

¶24    Edwards argues he was prejudiced by defense counsel’s two admissions of lack of

preparation for cross-examination. He asserts that these two statements, made in front of

the jury, resulted in irreparable damage to his defense. We disagree.

¶25    Sherry admitted repeated lies to law enforcement, and confirmed prior inconsistent

statements.   The substance of Sherry’s cross-examination testimony harmed her

credibility as a witness. During Edwards’ case-in-chief, defense counsel again attacked

Sherry’s credibility, walking her through the history of her prior inconsistent versions of

the events surrounding Lavigne’s death. Furthermore, defense counsel raised the specter

that Sherry had only changed her story, accusing Edwards of Lavigne’s murder, after he

left her for another woman. Even Edwards concedes that this performance constituted a

“yeoman’s job.”

¶26    Edwards’ cite to Sechrest v. Ignacio, 549 F.3d 789 (9th Cir. 2008), misses the

mark. In Sechrest, defense counsel’s lack of preparation resulted in prejudice, because

“some of the most damaging testimony presented during the penalty phase of trial was

elicited by Sechrest’s own counsel, from a witness Sechrest’s counsel had originally

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selected and could have prevented from testifying.” Sechrest, 549 F.3d at 816. In

contrast, Edwards voices no complaint with the substance of Sherry’s testimony during

cross-examination.

¶27   At its core, Edwards’ argument is that the jury was unable to distinguish between

two off-hand comments made by defense counsel, and the actual substance of Sherry’s

testimony. Aside from failing to establish prejudice, such an argument amounts to little

more than “a lack of confidence in the intelligence and common sense of the average

juror.” Lindberg v. Leatham Bros., 215 Mont. 11, 22, 693 P.2d 1234, 1241 (1985).

Edwards has failed to show prejudice amounting to a reasonable probability of a different

outcome sufficient to undermine confidence in his conviction.

¶28   Whether the District Court erred when it failed to inquire into Edwards’ motion

for new counsel.

¶29   After the District Court received Edwards’ post-trial motion, it conducted no

further investigation. However, despite this error, remand is not necessary. Edwards

raised no complaint that communications had broken down or that he feared counsel

would fail to effectively represent him going forward to sentencing. When a defendant

alleges denial of effective assistance of counsel and requests appointment of new counsel,

a district court must conduct an adequate initial inquiry in order to determine whether the

allegations are seemingly substantial. State v. Happel, 2010 MT 200, ¶ 14, 357 Mont.

390, 240 P.3d 1016; Hendershot, ¶ 24. Where a district court fails to conduct “even a

cursory inquiry,” the inquiry is inadequate and remand is justified. Happel, ¶ 14.



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¶30    “A district court’s failure to investigate a defendant’s timely substitution request is

error.” Wilson v. State, 1999 MT 271, ¶ 25, 296 Mont. 465, 989 P.2d 813, overruled on

other grounds State v. Gallagher, 2001 MT 39, ¶ 21, 304 Mont. 215, 19 P.3d 817.

However, reversal is only necessitated when the defendant’s conflict with counsel was

sufficient to require substitution at the time the request was made. Wilson, ¶¶ 23, 25. In

other words, the district court must assess whether an actual conflict exists, when the

motion is made, that would preclude the proceedings from moving forward without a new

attorney representing the defendant.

¶31    Following a conviction, a defendant may allege, as was done in this case, that his

attorney made mistakes during the course of the trial. Edwards was solely concerned

with prior events: (1) defense counsel was unprepared for Sherry’s testimony, (2) the

jury was not informed of certain facts concerning Edwards’ ownership of firearms, (3) an

independent pathologist should have been retained, (4) the least experienced investigator

was employed, (5) a clear timeline was not presented to the jury, and (6) the prosecution

was sitting too close to the jury. Post-trial concerns, based solely on the fact that the

defendant was convicted by a jury, are not of a sufficient magnitude to require the

substitution of counsel at the time the motion was written.

¶32    Only where the conflict between defendant and counsel results in a “complete

collapse” of the attorney client relationship or ineffective assistance of counsel is new

counsel merited. Robinson v. State, 2010 MT 108, ¶¶ 20, 23, 356 Mont. 282, 232 P.3d

403 (no “complete collapse” of relationship where communication breakdown was

initiated by client and attorney was able to continue to perform reasonably); Wilson, ¶ 20.

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Furthermore, the burden is on the defendant to present material facts that establish the

magnitude of the conflict. State v. Dethman, 2010 MT 268, ¶ 16, 358 Mont. 384, 245

P.3d 30. Bare, unsupported assertions do not suffice. State v. Kaske, 2002 MT 106, ¶ 30,

309 Mont. 445, 47 P.3d 824.

¶33    Edwards did not allege a conflict that resulted in a total lack of communication,

nor did he claim that his attorneys were unable or unwilling to represent him at the

sentencing hearing. Consequently, while it was error for the District Court not to conduct

an inquiry, under the facts of this case, reversal and remand is not required.

¶34    Affirmed.



                                                  /S/ MIKE McGRATH

We concur:


/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE




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