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State v. Beauchman

Supreme Court of Montana

March 27, 2018

STATE OF MONTANA, Plaintiff and Appellee,
MICHAEL GORDON BEAUCHMAN, Defendant and Appellant.

          APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADC 13-494 Honorable Gregory G. Pinski, Presiding Judge

          For Appellant Chad M. Wright, Chief Appellate Defender; Helena, Montana Gregory D. Birdsong, Birdsong Law Office; Missoula, Montana

          For Appellee Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant Attorney General; Helena, Montana Joshua A. Racki, Cascade County Attorney; Great Falls, Montana

          Dirk Sandefur Justice

         ¶1 Pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, we decide this case by memorandum opinion, which shall not be cited and does not serve as precedent. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. The 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 Michael Gordon Beauchman (Beauchman) appeals his conviction on Aggravated Burglary, a felony in violation of § 45-6-204, MCA, and Sexual Intercourse Without Consent, a felony in violation of § 45-5-503, MCA. Beauchman asserts that he received ineffective assistance of counsel (IAC) in violation of the Sixth and Fourteenth Amendments to the United States Constitution, and Montana Constitution Article II, Section 24, based on deficient pretrial motion practice and counsel's performance at trial. The issues asserted by Beauchman present mixed issues of law and fact which we review de novo. Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861. For the following reasons, we affirm.

         ¶3 The Sixth and Fourteenth Amendments to the United States Constitution, and Montana Constitution Article II, Section 24, guarantee criminal defendants the right to effective assistance of counsel. However, counsel's performance was constitutionally ineffective only if (1) the performance was deficient and (2) the deficient performance resulted in actual prejudice to the defendant's right to a fair trial. Ariegwe v. State, 2012 MT 166, ¶ 15, 365 Mont. 505, 285 P.3d 424; Heath v. State, 2009 MT 7, ¶ 17, 348 Mont. 361, 202 P.3d 118; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). Whether on direct appeal or postconviction petition, an IAC claimant has the burden of demonstrating that counsel's performance was ineffective under both prongs of the Strickland analysis. A reviewing court may consider the Strickland prongs in either order and need not consider both if one is dispositive of an IAC claim. Bomar v. State, 2012 MT 163, ¶ 8, 365 Mont. 474, 285 P.3d 396; Miller v. State, 2012 MT 131, ¶ 13, 365 Mont. 264, 280 P.3d 272; State v. Cobell, 2004 MT 46, ¶ 15, 320 Mont. 122, 86 P.3d 20.

         ¶4 At trial, the State presented substantial evidence that Beauchman walked uninvited into the apartment of 39-year-old H. M., locked the door, pushed her down on her bed, and subjected her to forcible sexual intercourse. After Beauchman was gone, H. M. reported the incident to neighbors, friends, and ultimately the police. A police officer responded and took her to the hospital emergency room for a sexual assault examination. H. M. subsequently identified Beauchman as her assailant from a photo lineup. Upon request, Beauchman voluntarily accompanied a police officer to the police station for a recorded interview. Beauchman admitted being alone with H. M. in her apartment but claimed that he declined her sexual advances and asserted that he had no sexual contact with her.

         ¶5 After arresting Beauchman, police took him to the hospital emergency room for a forensic trace evidence examination. H. M. had been menstruating at the time of the alleged assault, and a subsequent forensic serology analysis revealed traces of H. M.'s blood on Beauchman's hands and penis. A forensic expert also matched Beauchman's DNA with semen residue collected from H. M.'s body.

         ¶6 During pretrial proceedings, defense counsel, on the record and in communications with the State, vacillated on whether to have Beauchman evaluated for fitness to proceed. Counsel's vacillations resulted in numerous continuances and trial delays. On the State's motion, the District Court eventually ordered a fitness evaluation pursuant to § 46-14-202, MCA. After significant delay attributed to the population and work load at the state hospital, the State requested, and the District Court ordered, that a private clinical psychologist perform the fitness evaluation. Defense counsel did not object. After the court determined Beauchman fit to proceed based on the findings of the private evaluator, defense counsel requested yet another continuance, this time to obtain a neuropsychiatric (neuro-psych) evaluation to assess whether Beauchman's prior traumatic brain injury adversely affected his ability to assist in his defense. Counsel did not ultimately obtain the contemplated neuro-psych evaluation.

         ¶7 Before jury selection on the morning of trial, the District Court took notice that it had yet to rule on a non-specific motion in limine previously filed by the State for enforcement of the Montana Rape Shield statute. See § 45-5-511(2), MCA (generally prohibiting evidence or reference to the prior sexual history of a sexual assault victim). Upon challenge by the District Court as to why he had not responded to the State's motion, defense counsel responded that he had no need or obligation to respond because the State's non-specific motion would not preclude him from presenting evidence not precluded by the Rape Shield statute. At trial, defense counsel ultimately called no witnesses, instead relying on evidentiary objection, cross-examination, and closing argument contrary to the State's case.

         ¶8 After the jury returned a guilty verdict, and upon subsequent notice that unspecified conflict had arisen between Beauchman and defense counsel prior to sentencing, the District Court allowed original counsel to withdraw and ordered that the Office of State Public Defender appoint new counsel to represent Beauchman at sentencing. At the sentencing hearing, new counsel presented mitigating evidence of Beauchman's mental impairment. After closely deliberating whether to find and apply an exception to a mandatory life sentence, the District Court ultimately sentenced Beauchman to serve a 25-year term in the Montana State Prison on Aggravated Burglary with a consecutive 65-year term on Sexual Intercourse Without Consent.

         ¶9 Under the first Strickland prong, defense counsel's performance is presumptively reasonable and sufficient within the "broad range of reasonable professional conduct" and "sound trial strategy." Whitlow, ¶ 21. See also Worthan v. State, 2010 MT 98, ¶ 10, 356 Mont. 206, 232 P.3d 380 (judicial review of counsel's performance "must be highly deferential"). Thus, counsel's performance is constitutionally deficient only if it fell "below an objective standard of reasonableness" under the totality of the circumstances and "prevailing professional norms." Ariegwe, ¶ 16. The Sixth Amendment and Article II, Section 24 guarantee only reasonably competent lawyers and assistance of counsel, not "perfect advocacy judged with the benefit of hindsight." Bomar, ¶ 19 (citing Whitlow, ¶ 32); Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 6 (2003). A successful defense is not the measure of effective assistance of counsel. Bomar, ¶ 19.

         ¶10 Under the first Strickland prong, Beauchman asserts that trial counsel's performance was deficient on multiple grounds, i.e., failing to formally move for a pretrial fitness examination, failing to oppose the State's motion for a private evaluator to perform Beauchman's subsequently ordered fitness evaluation, failing to obtain the contemplated pretrial neuro-psych evaluation, failing to file a written response to the State's Rape Shield motion, failing to make an adequate oral argument in opposition to the motion on the morning of trial, failing to file a motion to suppress Beauchman's pre-arrest police interview, failing to call any defense witnesses, and failing to object to the State's allegedly confusing and burden-shifting references to the reasonable doubt standard. However, even before counsel's rationale for failing to act becomes relevant, an IAC claimant must first make a threshold showing of a basis upon which to conclude that the disputed omission was deficient. Merely citing a litany of omissions in counsel's performance is not sufficient to demonstrate that the performance was deficient. Defense "counsel has no constitutional obligation to raise every non-frivolous issue" in a ...

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