Submitted on Briefs: December 4, 2019
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.
Appellant: Chad Wright, Appellate Defender, Danny Tenenbaum,
Assistant Appellate Defender, Helena, Montana.
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.
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
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.
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
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
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.
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.
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.
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
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