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State v. Rice

Supreme Court of Montana

January 14, 2020

STATE OF MONTANA, Plaintiff and Appellee,
v.
CECIL THOMAS RICE, Defendant and Appellant.

          Submitted on Briefs: December 4, 2019

          APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC 17-250D Honorable Dan Wilson, Presiding Judge.

          For Appellant: Chad Wright, Appellate Defender, Danny Tenenbaum, Assistant Appellate Defender, Helena, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana Travis Ahner, Flathead County Attorney, John Donovan, Deputy County Attorney, Kalispell, Montana.

          OPINION

          Ingrid Gustafson 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 Defendant and Appellant Cecil Rice (Rice) appeals from the jury verdict of December 5, 2017, finding Rice guilty of deliberate homicide and the Judgment and Sentence issued by the Eleventh Judicial District Court, Flathead County, on January 31, 2018. We affirm.

         ¶3 Rice asserts his trial counsel was ineffective for failing to object to the State's unlawful use of other character evidence or evidence of his prior spousal abuse-other bad acts.

         ¶4 Claims of ineffective assistance of counsel (IAC) are mixed questions of law and fact that we review de novo. State v. Jefferson, 2003 MT 90, ¶ 42, 315 Mont. 146, 69 P.3d 641.

         ¶5 Article II, Section 24, of the Montana Constitution and the Sixth Amendment to the United States Constitution, as incorporated through the Fourteenth Amendment, guarantee a defendant the right to effective assistance of counsel. State v. Kougl, 2004 MT 243, ¶ 11, 323 Mont. 6, 97 P.3d 1095.

         ¶6 In assessing IAC claims, we apply the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Kougl, ¶ 11. Under the Strickland test, the defendant must (1) demonstrate that "counsel's performance was deficient or fell below an objective standard of reasonableness" and (2) "establish prejudice by demonstrating that there was a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different." Kougl, ¶ 11 (quoting State v. Turnsplenty, 2003 MT 159, ¶ 14, 316 Mont. 275, 70 P.3d 1234). Courts determine deficient performance based on whether a defendant's counsel acted within the broad "range of competence demanded of attorneys in criminal cases." Schaff v. State, 2003 MT 187, ¶ 18, 316 Mont. 453, 73 P.3d 803 (citations omitted). A strong presumption exists that counsel's conduct falls within the wide range of reasonable professional conduct. Kougl, ¶ 11.

         ¶7 When defendants raise ineffective assistance of counsel claims on direct appeal, we first determine whether the claims are more appropriately addressed in a postconviction relief proceeding. Kougl, ¶ 14. "[A] record which is silent about the reasons for the attorney's actions or omissions seldom provides sufficient evidence to rebut" the strong presumption counsel's conduct falls within the wide range of reasonable professional conduct. State v. Sartain, 2010 MT 213, ¶ 30, 357 Mont. 483, 241 P.3d 1032 (citations omitted). If we cannot answer from the record "the question 'why' counsel did or did not take the actions constituting the alleged ineffective assistance, the claims are better raised by a petition for post-conviction relief where the record can be more fully developed, unless 'no plausible justification' exists for defense counsel's actions or omissions." Sartain, ¶ 30 (quoting Kougl, ¶¶ 14-15). Trial counsel is afforded considerable latitude, and a defendant "must overcome the presumption that, under the circumstances," counsel's decision could be considered a sound strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

         ¶8 Rice was convicted of deliberate homicide by pushing Anthony Walthers (Walthers) off the Old Steel Bridge into the Flathead River where he drowned. In addition to Rice and Walthers, Cody Robinson (Robinson) and Heather Meeker (Meeker), Rice's wife, were also present at the scene of the homicide. At trial, the State called Meeker to testify. During the State's examination of her, the State asked her to describe her relationship with Rice, whether there had been physical abuse in the relationship, and whether she was scared of Rice. No objection was made by Rice's counsel to this line of questioning. Meeker testified she and Rice were "pretty toxic for each other," that there had been physical abuse on and off for the duration of the time they had been together, and she was scared of Rice at times. During closing argument, the State reminded the jury of this other bad acts evidence. Again, Rice's counsel failed to object.

         ¶9 Defendant argues his trial counsel was ineffective because there was no justifiable reason not to object to the State admitting this other bad acts evidence-evidence of Rice's character or evidence of his prior spousal abuse-pursuant to M. R. Evid. 404(b). Rice asserts there was no permissible, legitimate purpose for the State to inquire about Meeker and Rice's relationship and their history of physical ...


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