APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-32-2010-0000388-IN Honorable Edward P. McLean, Presiding Judge
The opinion of the court was delivered by: Mike McGRATH
Submitted on Briefs: April 18, 2012
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Appellant Curtis Randall Mitchell (Mitchell) appeals from his conviction in the Fourth Judicial District Court, Missoula County, of one count of felony aggravated assault in violation of § 45-5-202, MCA. Mitchell argues that his conviction should be reversed under the plain error doctrine because law enforcement failed to investigate his claim of justifiable use of force as required by § 45-3-112, MCA. He also argues that he received ineffective assistance of counsel because his attorney failed to move for dismissal of his charge. We consider the following issues on appeal:
¶2 Issue one: whether law enforcement's alleged failure to investigate Mitchell's claim of justifiable use of force pursuant to § 45-3-112, MCA, warrants reversal upon plain error review.
¶3 Issue two: whether Mitchell received ineffective assistance of counsel when his trial counsel failed to move for dismissal based upon law enforcement's alleged failure to investigate his claim of self-defense.
¶4 On August 15, 2010, a witness called 911 to report a fight between two men near the 316 Mission in Missoula. The witness explained that one of the men was being "choked out" by the other man. When law enforcement arrived, they observed Mitchell continuing to choke another man. The officers identified the man being held in a sleeper hold as Mark Corbin.
¶5 Mitchell explained to law enforcement that prior to the fight, Corbin had harassed him and told him he should kill himself, so Mitchell decided to accost Corbin. In the ensuing fight, Mitchell quickly gained the advantage and told Corbin that he would let him up if he quit fighting. However, when Corbin was released, he reached behind himself for a multi-tool on his belt. Mitchell charged Corbin, resumed strangling him, and yelled to the witness that Corbin had a knife.
¶6 While initially calm, Mitchell soon became agitated and had to be handcuffed so that the initial investigation could proceed. He told the officers that Corbin had tried to pull a knife on him. The officers did not see a knife in the open, but did observe a closed multi-tool in a case on Corbin's belt. They questioned Corbin about the tool and whether he had removed it from its case during the fight. Corbin admitted to reaching for his multi-tool to "bluff" Mitchell, but denied that he had ever removed the tool from its pouch.
¶7 The police did not confiscate it as evidence. Upon interviewing both parties and the witness, the officers determined that Mitchell had been the aggressor and that probable ...