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State v. Whitegrass

Supreme Court of Montana

December 27, 2016

STATE OF MONTANA, Plaintiff and Appellee,
GARRETT LEE WHITEGRASS, Defendant and Appellant.

          Submitted on Briefs: November 30, 2016.

         APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDC-14-184 Honorable Dirk M. Sandefur, Presiding Judge.

          For Appellant: Carl B. Jensen, Attorney at Law, Great Falls, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana John W. Parker, Cascade County Attorney, Great Falls, Montana.


          Mike McGrath Chief Justice.

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 In December 2014 a jury convicted Garrett Whitegrass of felony sexual intercourse without consent. Whitegrass appeals and we affirm. The issue on appeal is whether Whitegrass's attorney provided effective assistance of counsel.

         ¶3 The victim reported to the emergency room for treatment in April 2014. The evidence showed that she had been violently assaulted, suffering a concussion, severe trauma to her face including broken bones, black eyes and severe bruising, bite marks on her body and severe vaginal injuries. Whitegrass admitted to having intercourse with the victim, but claimed that he either blacked out and did not remember inflicting any injuries, or that someone else was responsible. The District Court continued the trial date twice at the request of the defense to allow for evidence analysis and witness interviews.

         ¶4 A week prior to trial the State obtained a recording of a May 2014 phone conversation between Whitegrass and his parents. The State provided the defense a copy of the recording on Wednesday of the week before trial. While Whitegrass remembered talking to his parents, he believed that he had not said anything incriminating and so was not concerned that the State had the recording. On the recording Whitegrass stated, among other things, that the victim was "slutty" and that she "probably wanted it." At trial the defense objected to the recording on the basis that its probative value was outweighed by its prejudicial effect, but the District Court admitted the evidence. Whitegrass testified that the point of the conversation with his mother was that he only wanted the victim to "tell the truth."

         ¶5 Defense counsel met with Whitegrass at or near the time the State produced the recording to discuss the State's plea offer of ten years with five suspended. Whitegrass rejected the offer and countered with eight years with five suspended, which the State rejected.

         ¶6 As the case proceeded to trial the District Court considered the admissibility of a spent condom found in the yard of Whitegrass's residence. DNA analysis indicated that the semen came from Whitegrass's brother. The District Court concluded that evidence of the condom was not admissible under the Rape Shield statute. On the second day of trial the defense announced that it had discovered Whitegrass's cell phone the previous night and made it available to the State. The District Court later admitted some of the text messages that were generated between Whitegrass and the victim both prior to and after the rape. Those messages implied that the victim agreed to meet Whitegrass; that she was bringing drugs for him (Klonopin); and that the two planned to have sex. The content of these messages caused the State to recall the victim, who recanted parts of her testimony from the day before in which she denied that she had given drugs to Whitegrass.

         ¶7 After the jury convicted Whitegrass the District Court granted a defense motion to appoint new counsel for post-trial proceedings. Whitegrass's new attorney filed a "Motion to Enforce Plea Offer" requesting that the State be required to re-offer its rejected plea deal of ten years with five suspended. The District Court conducted an evidentiary hearing. The parties apparently agreed that the hearing would not focus on whether Whitegrass's trial counsel provided effective assistance.

         ¶8 Trial counsel testified that on December 3 he received the recording of the phone conversation between Whitegrass and his parents, and that it contained incriminating statements. Counsel testified that he believed the biggest hurdle for the defense was the severity of the victim's injuries, but that there was a chance of "prevailing" by impeaching her account of the events. He said that he probably recommended that Whitegrass take the State's plea offer but was not sure. Whitegrass testified that he knew about the recorded conversation before he rejected the State's plea offer, but that his construction of the situation was that the conversation was "all the State had on me"; that they "didn't have DNA on me"; and that the State's case was "weak."

         ¶9 At the conclusion of the testimony the District Court determined that Whitegrass had not demonstrated that he was denied the opportunity to make a knowing and voluntary plea decision. Rather, Whitegrass made a deliberate choice to not learn more about the evidence (principally the recording) because of his own belief that he would not have said anything that damaged his defense. The District Court noted that Whitegrass never claimed that his attorney failed to discuss the recording with him and never denied that he ...

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