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State v. Mitchell

Supreme Court of Montana

September 5, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
EDWARD MITCHELL, Defendant and Appellant.

          Submitted on Briefs: August 2, 2017

         APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 14-962 Honorable Russell C. Fagg, Presiding Judge COUNSEL OF RECORD:

          For Appellant: Chad Wright, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana Scott Twito, Yellowstone County Attorney, Christopher A. Morris, Deputy County Attorney, Billings, Montana

          OPINION

          Jim Rice Justice.

         ¶1 Edward Mitchell (Mitchell) was charged with and tried for one count of assault with a weapon and one count of aggravated assault upon Tanner Conway, and one count of assault with a weapon upon Heather Conway. After a jury trial, Mitchell was convicted of assault with a weapon upon Heather, and acquitted of the two counts involving Tanner. Mitchell appeals his conviction. We affirm, addressing the following issues:

1. Did defense counsel provide ineffective assistance by failing to request a bystander justifiable use of force jury instruction?
2. Did the District Court impose illegal parole conditions?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 On November 19, 2014, police responded to an emergency call at the residence of Paula and Jeff Comer. Comers' daughter, Heather Conway, and her husband, Tanner Conway, lived with Comers and slept in a second-floor bedroom. Additionally, Comers' other daughter, Courtney Comer, and her boyfriend, Mitchell, lived with them and slept in a basement bedroom.

         ¶3 The emergency call was spawned by an altercation, which eventually involved the entire family. Mitchell and Courtney began the day with an argument and continued squabbling throughout the day. Mitchell got drunk and high, returned home later in the day, and passed out in the kitchen. Courtney arrived home after work, and found Mitchell passed out and covered in vomit. She woke him and cleaned him; thereafter, they commenced a loud verbal argument. Meanwhile, Tanner and Heather were attempting to sleep in their upstairs bedroom, and, at one point, Tanner went downstairs to ask Mitchell and Courtney to be quiet. Mitchell began to argue with Tanner, stating he had never liked Tanner and calling him a "honky" and a "cracker." In response, Tanner called Mitchell a "nigger." The verbal fight between Tanner and Mitchell escalated until Tanner headed back upstairs.

         ¶4 Meanwhile, Heather, Courtney, and Jeff tried to physically remove Mitchell from the house. Tanner returned to the landing at the base of the stairs with a baseball bat and shouted at Mitchell, telling him to leave. While Heather called emergency services, Courtney and Jeff tried to shove Mitchell out the door, but he pushed his way into the kitchen and grabbed a knife. Courtney and Jeff disarmed Mitchell. Paula entered the fray and told Mitchell to leave. However, instead of leaving, Mitchell grabbed a second knife and engaged Tanner. Courtney and Heather placed themselves between Tanner and Mitchell. In the ensuing fight, Mitchell cut Heather with the knife, stabbed Tanner in the chest, and bit Tanner's finger. Tanner hit Mitchell with the baseball bat. Their fight ranged from the kitchen, down the basement stairs, and back up the stairs. Finally, Courtney and Heather shoved Mitchell out the front door. Locked out of the house, Mitchell began to pound on the door and shout threats until police arrived.

         ¶5 Mitchell was charged with one count of assault with a weapon and one count of aggravated assault upon Tanner, and one count of assault with a weapon upon Heather, all felonies. Mitchell asserted the defense of justifiable use of force. Defense counsel did not seek, and the jury was not given, any instructions designating Heather as a "bystander" or addressing her status as such. The jury found Mitchell guilty of assaulting Heather with a weapon, and acquitted him of the two charges involving Tanner. Mitchell appeals, primarily challenging the effectiveness of his counsel regarding the jury instructions.

         STANDARD ...


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