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State v. Sawyer

Supreme Court of Montana

April 23, 2019

STATE OF MONTANA, Plaintiff and Appellee,
TONY DWADE SAWYER, Defendant and Appellant.

          Submitted on Briefs: March 27, 2019


          For Appellant Chad Wright, Appellate Defender, Haley Connell Jackson, Assistant Appellate Defender, Helena, Montana

          For Appellee Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana Eileen Joyce, Silver Bow County Attorney, Michael Clague, Ann Shea, Deputy County Attorneys, Butte, Montana


          Jim Rice Justice.

         ¶1 Tony Dwade Sawyer (Sawyer) was convicted of one count of deliberate homicide, in violation of § 45-5-102, MCA, and two counts of attempted deliberate homicide, in violation of §§ 45-5-102 and 45-4-103, MCA, after jury trial in the Second Judicial District Court, Silver Bow County. He asserts his trial counsel rendered ineffective assistance and seeks a new trial. We affirm the conviction without prejudice to Sawyer pursuing his ineffectiveness claim in postconviction proceedings, and consider the following issue:

         Is Sawyer's ineffective assistance of counsel claim appropriately considered on direct appeal?


         ¶2 In 2014, Sawyer and Steve Drury (Drury) met while both were incarcerated in Texas. After their release, Drury returned to his home in Whitehall, Montana, and Sawyer remained in Texas. The two men stayed in contact. In October 2015, after being charged with domestic assault in Texas, Sawyer asked Drury if he could come to Montana to find work. Drury invited Sawyer to stay with him, and Sawyer arrived at the Butte bus station on the morning of November 2, 2015, where Drury picked him up. Sawyer and Drury ran errands and smoked methamphetamine together. That evening, Drury invited two friends over to his house, Hunter Smith (Smith) and Joe Powers (Powers). The men smoked drugs and mounted laser sights on one or more firearms.

         ¶3 Drury kept many guns in his home, including a Hi-Point 9-millimeter pistol that Sawyer liked and was interested in acquiring. Sawyer carried the Hi-Point most of the afternoon and evening, then went to bed early. Sawyer contends Drury's friends did not like him and that he overheard Drury tell them that Drury would "take care of it" by taking Sawyer to the mountains the next day to kill him, and make it look like a hunting accident. Sawyer alleges he was "really scared," and that Drury was angry at him for being afraid.

         ¶4 The next day, Sawyer apologized to Drury for annoying him and his friends. Drury told Sawyer that he had not bothered anyone. Sawyer offered for Drury to take him to a homeless shelter in Butte, but Drury told Sawyer that was unnecessary. Drury and Sawyer spent the rest of the day running errands and working on Drury's truck. That evening, Smith, Powers, and Drury decided to drive to a remote area near Fish Creek to shoot clay pigeons with laser mounted guns. They invited Sawyer to come, and he accepted. The men took four guns, including the Hi-Point pistol, which Sawyer carried.

         ¶5 While driving on Fish Creek Road, the vehicle got stuck in the snow. All four men exited and worked on freeing the vehicle, but as they worked Sawyer disappeared into the woods. Drury, Smith, and Powers assumed Sawyer had walked to find help. Drury, Smith, and Powers freed the vehicle and Drury drove it to the top of a hill. Smith and Powers, unarmed, were walking up the road behind the vehicle when Sawyer approached and shot both of them. Sawyer then walked to the vehicle and confronted Drury, stating "You ain't going to kill me, Steve Drury[, ]" and pointed the gun at Drury. Drury attempted to swat the gun away, but was shot by Sawyer. Drury ran as Sawyer continued shooting at him. Sawyer got into the vehicle and drove away. Smith called 911. Powers died from his gunshot wound, while Smith survived a gunshot wound to the chin and Drury survived a gunshot wound to the shoulder. Sawyer was arrested on November 4 in Idaho Falls, Idaho.

         ¶6 On December 18, 2015, the State charged Sawyer with one count of deliberate homicide and two counts of attempted deliberate homicide. Trial was held September 12-19, 2016. Sawyer did not testify at trial. The jury heard Sawyer's account of what occurred through two video interviews taken by law enforcement following the shooting-the first on November 4, 2015, and the second on November 12, 2015-which were offered by the State. Sawyer's counsel did not object to the introduction of the two video interviews. In the videos, Sawyer explained his criminal past, including meeting Drury while incarcerated in Texas, a DUI charge, a domestic assault charge for fighting with his wife, and an aggravated assault with a deadly weapon charge for chasing his neighbor with a knife. The District Court gave the jury two cautionary instructions before playing the first interview video. The cautionary instructions informed the jury that the evidence was admitted only to explain how Sawyer and Drury met and how Sawyer ended up in Montana, and should not be used for any other purpose. A defense expert referred to Sawyer's domestic assault charge during her testimony, stating that "Mr. Sawyer had said that he and his wife had gotten into a rather heated argument. The police were called, and he was arrested for a misdemeanor charge at that point. . . . he was then arrested and he was jailed for a period of about two days."

         ¶7 Prior to trial, Sawyer's counsel filed a notice of intent to use prior crimes, wrongs, or acts by alleged victims and notice of intent to use evidence under the transaction rule, § 26-1-103, MCA, as obtained by way of Sawyer's interview with law enforcement on November 12, 2015. Sawyer alleged that the interview constituted evidence regarding "the motive, opportunity, intent, or plan of [Powers], [Drury], and/or [Smith] to kill [Sawyer] on, or near Fish Creek Road, on November 3, 2015." In its memorandum and order on the motion, the District Court stated, "Defendant intends to use his prior statements to investigators as ...

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