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Lacey v. State

Supreme Court of Montana

January 31, 2017

DANIEL GERARD LACEY, Petitioner and Appellant,
STATE OF MONTANA, Respondent and Appellee.

          Submitted on Briefs: December 7, 2016

         APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 10-1697 Honorable Gregory R. Todd, Presiding Judge

          For Appellant: Colin M. Stephens, Smith & Stephens, P.C., Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana Scott D. Twito, Yellowstone County Attorney, Billings, Montana



         ¶1 Petitioner and Appellant, Daniel Gerard Lacey (Lacey), appeals from the order of the Thirteenth Judicial District Court, Yellowstone County, denying his postconviction relief petition, request for counsel, and request for an evidentiary hearing. We affirm, restating the issues as follows:

         1. Did the District Court err by denying the petition for postconviction relief?

         2. Did the District Court err by denying the requests for counsel and for an evidentiary hearing?


         ¶2 Lacey pled guilty to four counts of felony Sexual Intercourse Without Consent and two counts of felony Sexual Assault. The facts related to these convictions are set forth in State v. Lacey, 2009 MT 62, 349 Mont. 371, 204 P.3d 1192, wherein we affirmed Lacey's convictions, and we restate only those facts applicable to the issues raised here.

         ¶3 In February 2005, Lacey and his then-girlfriend, Carla Dozier (Dozier), moved into a house together in Billings. The lease was exclusively in Dozier's name. Dozier had three children from previous relationships who also lived in the home with her and Lacey. The home contained a makeshift office, accessible by all members of the home, where Lacey routinely kept his laptop. While using Lacey's laptop, Dozier discovered sexually explicit images involving children, including pictures showing Lacey sexually abusing Dozier's six-year-old daughter. Dozier informed the Billings Police Department (BPD), who contacted the Federal Bureau of Investigation (FBI). Officers ultimately conducted searches of the house and garage, and seized the laptop, with Dozier's consent. A warrant was obtained to search the laptop.

         ¶4 The search of the computer revealed numerous images of child pornography that Lacey had taken, including some images of Lacey engaging in sexually explicit conduct with Dozier's daughter. The computer also contained numerous images of child pornography Lacey had downloaded from the Internet. The evidence seized from the garage also revealed a videotape of Lacey sexually abusing a toddler girl he was babysitting. In sum, investigators found 217 movies and over 3, 000 images of child pornography on the computer, including images of children clearly under the age of twelve and engaged in sadistic or masochistic abuse or other violence.

         ¶5 The State of Montana filed an amended information charging Lacey with four counts of felony Sexual Intercourse Without Consent and five counts of felony Sexual Assault. Lacey was also charged in United States District Court for the District of Montana with three counts of Sexual Exploitation of Children, one count of Receipt of Child Pornography, one count of Possession of Child Pornography, and Forfeiture.

         ¶6 Lacey pled guilty in the United States District Court to two counts of Sexual Exploitation of Children and one count of Possession of Child Pornography. He was sentenced to a total of 30 years in prison.

         ¶7 On his state charges, Lacey moved to suppress all evidence discovered in the course of the investigation. Two of those arguments are relevant to this appeal. First, Lacey argued that the seizure and search of his laptop violated his right to privacy under both Montana and Federal law, arguing Dozier did not have authority to consent to its seizure. Second, Lacey argued that the warrantless search of his garage was illegal because he never gave consent. Lacey argued that all evidence obtained flowed from illegal searches and seizures, so it should all be suppressed as "fruit of the poisonous tree."

         ¶8 After the District Court denied his motions to suppress, Lacey entered a plea deal with the State of Montana, reserving his right to appeal the District Court's denials of his motions. Lacey pled guilty to four counts of felony Sexual Intercourse Without Consent and two counts of felony Sexual Assault. The State dismissed the remaining counts. Altogether, Lacey was sentenced to life in prison.

         ¶9 On appeal to this Court, Lacey argued that the District Court erred by not suppressing the physical evidence seized by the FBI and BPD. Specifically, he argued that Dozier "did not possess the requisite joint access, control, common authority, or possessory interest in the laptop in order to consent to its search and subsequent seizure, " and that Dozier needed actual, not apparent, authority to consent. Lacey also argued that he "had an actual and reasonable expectation of privacy in his computer files where the child pornography was found" because they were placed in a "hidden" file on his laptop and computers should be entitled to greater protection under the law of search and seizure. Regarding the garage search, Lacey argued that he had a reasonable and actual "expectation of privacy in his boxes and containers which were in the garage, and that Dozier did not have the required actual authority to consent to their search." Lacey argued that all the physical evidence should be excluded under the "poisonous tree" doctrine.

         ¶10 This Court rejected Lacey's suppression arguments. Regarding the laptop, we stated that Lacey correctly argued that Dozier "did not have the right or authority to consent to the seizure of [his] computer" and, therefore, the officer who seized the laptop needed to have probable cause to do so. Lacey, ¶ 49. We stated that "[a]rguably, Dozier's statement to Officer Spaulding that she had observed images on the laptop showing Lacey sexually abusing her minor daughter was sufficient, by itself, to demonstrate probable cause to seize the laptop." Lacey, ¶ 52. Examining the exceptions to the fruit of the poisonous tree doctrine, we sua sponte determined that, even if probable cause to seize the laptop was lacking, the inevitable discovery exception applied and the search was proper. Lacey, ¶¶ 52-56. Regarding the search of the boxes in the garage, we held that "Dozier had sufficient common authority to consent to their search" because Lacey let his items "remain co-mingled, unmarked, and unlocked in a common area in a house he shared with Dozier which was rented in her name alone." Lacey, ¶ 41.

         ¶11 After we affirmed his convictions, Lacey initiated this proceeding, making four claims of ineffective assistance of counsel. First, Lacey contended that his trial counsel was ineffective because she failed to "challenge the 'exceptions' to [Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407 (1963)] and the other legal requirements needed to search and seize under the 4th Amendment." Lacey argued that, although his trial counsel argued that all evidence should be suppressed under the fruit of the poisonous tree doctrine, she should also have proactively argued against the three exceptions to the doctrine. Second, Lacey claimed his trial counsel failed "to challenge the government[']s warrantless seizure of personal items retrieved from containers in the garage following a 'third party consent to search' said containers, in the absence of showing that probable cause clearly existed to seize personal items, without a warrant, once removed from containers and in plain view." Third, Lacey claimed his counsel erred by failing to seek a writ of supervisory control, after the denial of his suppression motions. Finally, Lacey argued his counsel erred by "failing to file a motion to dismiss State charges; based on MCA 46-11-504 (1) Double Jeopardy, after petitioner plead [sic] guilty and was sentenced to his federal charges which arose out of the same transaction." Lacey also moved for appointment of postconviction counsel and for the District Court to hold an evidentiary hearing.

         ¶12 The District Court held that all of Lacey's claims were barred either procedurally or for failure to state a claim, and denied Lacey's request for counsel and a hearing. Lacey challenges these rulings on appeal.


         ¶13 We review a district court's denial of postconviction relief to determine if the court's findings of fact are clearly erroneous, and if its conclusions of law are correct. Kenfield v. State, 2016 MT 197, ¶ 7, 384 Mont. 322, 377 P.3d 1207. We review discretionary rulings in postconviction relief proceedings, including rulings related to whether to hold an evidentiary hearing, for an abuse of discretion. Wilkes v. State, 2015 MT 243, ¶ 9, 380 Mont. 388, 355 P.3d ...

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