                                                                                          May 5 2010


                                          DA 09-0503

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2010 MT 98



KELLY DEAN WORTHAN,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.


APPEAL FROM:          District Court of the Twenty-First Judicial District,
                      In and For the County of Ravalli, Cause No. DV 07-51
                      Honorable James A. Haynes, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Colin M. Stephens; Smith & Stephens, P.C.; Missoula, Montana

               For Appellee:

                      Hon. Steve Bullock, Montana Attorney General; Micheal S. Wellenstein,
                      Assistant Attorney General; Helena, Montana

                      George Corn; Ravalli County Attorney; Hamilton, Montana



                                                  Submitted on Briefs: March 10, 2010

                                                              Decided: May 4, 2010


Filed:

                      __________________________________________
                                        Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1        Appellant Kelly Dean Worthan (Worthan) appeals from the order of the Twenty-

First Judicial District Court, Ravalli County, denying his petition for post-conviction

relief.

¶2        We consider the following issues on appeal:

¶3     1. Whether Worthan’s counsel’s failure to produce Dr. Michael Scolatti for
testimony at trial violated Worthan’s constitutional rights to the effective assistance of
counsel.

¶4    2. Whether Worthan’s counsel’s failure to ascertain the qualifications of expert
witness David Stube violated Worthan’s constitutional rights to the effective assistance
of counsel.

                    FACTUAL AND PROCEDURAL BACKGROUND

¶5        This case arises out of Worthan’s trial and convictions for two counts of sexual

intercourse without consent, felonies, in violation of § 45-5-502, MCA, two counts of

incest, felonies, in violation of § 45-5-502, MCA, and one count of tampering with a

witness, a felony, in violation of § 45-7-206, MCA. For these convictions, the District

Court sentenced Worthan to a total of 130 years in Montana State Prison with 60 years

suspended. Worthan appealed his convictions alleging that his trial attorney Kelli Sather

(Sather) provided ineffective assistance of counsel. With respect to his initial appeal, we

concluded that Sather’s questioning of a social worker did not amount to ineffective

assistance of counsel and that the record was insufficient to address Worthan’s additional

ineffective assistance of counsel claims. Accordingly, we deemed his additional claims

appropriate for consideration in a petition for post-conviction relief.

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¶6     On January 29, 2007, Worthan filed the pro se petition for post-conviction relief

that is the subject of this appeal. Among other things, Worthan claimed that his rights to

effective assistance of counsel were violated by Sather’s failure to adequately investigate

expert witness David Stube’s (Stube) credentials and by her promise and subsequent

failure to call Dr. Michael Scolatti (Dr. Scolatti) to testify. After an evidentiary hearing,

the District Court denied Worthan’s petition concluding that he failed to demonstrate

ineffective assistance of counsel.

¶7     Worthan appeals.

                               STANDARD OF REVIEW

¶8     This Court reviews a district court’s denial of a petition for post-conviction relief

to determine whether its findings of fact are clearly erroneous and its conclusions of law

are correct. Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861. Claims of

ineffective assistance of counsel are mixed questions law and fact which this Court

reviews de novo. Whitlow, ¶ 9.

                                      DISCUSSION

¶9     1. Whether Worthan’s counsel’s failure to produce Dr. Michael Scolatti for
testimony at trial violated Worthan’s constitutional rights to the effective assistance of
counsel.

¶10    The right to effective assistance of “counsel in criminal prosecutions is guaranteed

by the Sixth and Fourteenth Amendments to the United States Constitution and by

Article II, Section 24 of the Montana Constitution.” Whitlow, ¶ 10. When confronted

with an ineffective assistance of counsel claim we apply the two-part test set forth in

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Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and

adopted by this Court in Whitlow. Under this test, the defendant must demonstrate

(1) that counsel’s representation was deficient and (2) that counsel’s deficiency was

prejudicial to the defense. Strickland, 446 U.S. at 687, 104 S. Ct. at 2064; Whitlow, ¶ 10.

In order to eliminate the distorting effects of hindsight, we have explained that judicial

scrutiny of counsel’s performance must be highly deferential.             Whitlow, ¶ 15.

Accordingly, the defendant “‘must overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy.’” See

Whitlow, ¶ 21 (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). Indeed, this

presumption undergirds our conclusion that a defendant bears a heavy burden in order to

prevail on a claim of ineffective assistance of counsel. Whitlow, ¶ 21. Having set out the

appropriate analytical approach, we now turn to the first prong of our test which, as it

applies to the case before us, requires that we determine whether Sather’s failure to

produce Dr. Scolatti as an expert witness was deficient.

¶11    With respect to the first prong, the District Court concluded that “[t]o the extent

that Ms. Sather promised the jury that Dr. Scolatti would testify that [Worthan’s

Daughters] O.W. and/or K.W. were not credible, Ms. Sather’s professional conduct was

deficient . . . .”   On appeal, Worthan maintains that the District Court properly

determined Sather’s conduct to be deficient under the first prong of the Strickland test.

The State does not directly contest this conclusion. Rather, the State argues that, even

assuming Sather acted deficiently by failing to call Dr. Scolatti after she promised the

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jury she would do so, this deficiency did not prejudice Worthan and therefore did not

violate his rights to effective assistance of counsel. We agree with the State that, if

Sather’s conduct did not prejudice Worthan, the issue of whether her conduct was

deficient becomes immaterial. Accordingly, we turn our attention to the second prong of

the Strickland test.

¶12    Under the second prong, the District Court must determine whether the failure to

call Dr. Scolatti as a promised expert witness prejudiced Worthan’s defense. Strickland,

466 U.S. at 687, 104 S. Ct. at 2064. In its conclusion that Worthan’s defense was not

prejudiced the District Court reasoned that, rather than supporting Worthan, Dr. Scolatti’s

testimony would actually have damaged Worthan’s case. Worthan maintains however,

that this conclusion was in error. To make this argument, Worthan analogizes Sather’s

unfulfilled promise to call Dr. Scolatti to cases from other jurisdictions in which a

defendant was deemed to have been prejudiced by counsel’s failure to produce promised

evidence or testimony.

¶13    Worthan relies first on Anderson v. Butler, 858 F.2d 16 (1st Cir. 1988), in which

the First Circuit Court of Appeals held that a violation of the right to the effective

assistance of counsel occurred because the defendant’s attorney did not fulfill his promise

to the jury that he would call a psychiatrist to testify that during the killing the defendant

was acting “without any appreciation of what was happening . . .” and “was like a robot

programmed on destruction.” Anderson, 858 F.2d at 17. Worthan next points to State v.

Moorman, 358 S.E.2d 502 (N.C. 1987), in which the Supreme Court of North Carolina

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held that it was a violation of the defendant’s right to effective assistance of counsel

when counsel promised to produce evidence that the defendant was incapable of

engaging in sexual acts but failed to produce such evidence. Finally, Worthan presents

People v. Davis, 677 N.E.2d 1340 (Ill. App. 1997), in which the Appellate Court of

Illinois concluded that there was prejudice when the defense counsel failed to fulfill his

promise to offer the defendant’s testimony.         Each of these cases however, can be

distinguished from the facts presently before us.

¶14    In Anderson, the defense counsel failed to call a promised expert witnesses whose

testimony he claimed would show that on the night of the killing the defendant was

“walking unconsciously toward a psychological no exit . . . [w]ithout any feeling, without

any appreciation of what was happening, [the defendant] on that night was like a robot

programmed on destruction.”       Anderson, 858 F.2d at 17.       In concluding that the

defendant’s rights were prejudiced, the Anderson court explained that “[t]he promise was

dramatic, and indicated testimony strikingly significant.” Anderson, 858 F.2d at 17. By

comparison, Sather explained to the jury that

       [y]ou will also hear from Dr. Scolatti, who reviewed the forensic interviews
       of the three children that Dr. Miller did on the children. He has also done
       numerous forensic interviews and has worked with children and done this,
       and he comes to a little different conclusion than Dr. Miller. He may agree
       with some of the techniques she used; but in reviewing the videotapes and a
       lot of other information, he comes to a different conclusion on what he
       thinks the outcome of [O.W.’s] interview was.

Far from being dramatic and strikingly significant, Sather’s rather generic description of

Dr. Scolatti’s testimony can hardly be said to have had the same prejudicial effect on the

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jury as the “strikingly significant” statements in Anderson. Furthermore, in Anderson the

impact of the defense counsel’s unfulfilled promise was heightened because it occurred

only one day before the defense rested. Whereas here, Sather’s far less dramatic

statement was made six days before Worthan’s defense rested.

¶15    Moorman and Davis are also distinguishable from the case at bar. In Moorman, in

addition to reasoning that the defense counsel’s unfulfilled promise to present “one

critical piece of evidence” was deficient, the court also referred to the defense counsel’s

lack of credibility as a result of his abuse of prescription drugs, apparent inattentiveness

and sleeping at trial. Here, Sather made no similar claim that Dr. Scolatti’s testimony

would unequivocally demonstrate Worthan’s innocence and there is clearly no contention

that Sather was inattentive.    In Davis, defense counsel promised the jury that the

defendant, who was charged with murder, would testify as to his whereabouts on the

night of the murder. Ultimately, counsel failed to call the defendant and the court

concluded that this violated the defendant’s right to the effective assistance of counsel.

However, in contrast to Worthan’s claims, the Davis court’s conclusion that this

deficiency was prejudicial turned on the fact that defense counsel had also failed to

investigate the defendant’s criminal history or to obtain a ruling on whether the

defendant’s prior drug conviction was admissible. In addition, the court noted that

defense counsel’s unfulfilled promise to have the defendant testify amounted to a failure

to “present the most important piece of evidence he had promised to produce . . . .”

Sather’s generic comments regarding Dr. Scolatti’s testimony are not comparable to the

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defense counsel’s promise to produce the defendant in Davis. Thus, we do not find

Anderson, Moorman and Davis to be persuasive.

¶16    It is well established that in order to meet the second prong of the Strickland test

the defendant must show that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceedings would have been different.           A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Here, not only are the cases

Worthan relies on distinguishable but the evidence does not support the conclusion that it

is reasonably probable that, but for Sather’s unfulfilled promise to present Dr. Scolatti,

the result of the proceeding would have been different. In fact, as the District Court notes

in its decision, far from punching holes in the State’s case, Dr. Scolatti’s testimony

during sentencing actually supported the conclusion that the State forensic interviews

were conducted in a professional and proper manner. Furthermore, we are not persuaded

by Worthan’s contention that he was prejudiced by reference to Sather’s unfulfilled

promise to call Dr. Scolatti in the State’s closing and rebuttal arguments. Having sifted

through the transcripts we find no reference in the State’s closing or rebuttal arguments to

either Dr. Scolatti or Sather’s unfulfilled promise to call him as an expert witness. For

these reasons, we affirm the District Court’s conclusion that Worthan has failed to

demonstrate that Sather’s statements regarding Dr. Scolatti prejudiced his defense.

Accordingly, we conclude that Worthan’s rights under the United States and Montana




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Constitutions to the effective assistance of counsel were not violated by Sather’s

unfulfilled promise to call Dr. Scolatti as an expert witness.

¶17 2. Whether Worthan’s counsel’s failure to ascertain the qualification of expert
witness David Stube violated Worthan’s rights to the effective assistance of counsel.

¶18    On appeal, Worthan argues that Sather’s failure to discover that “Dr.” Stube had

received his Ph.D. from an unaccredited school and that he was therefore not a Doctor,

rendered her assistance ineffective and prejudiced his defense. The State counters that

Sather’s investigation of Stube’s qualifications as an expert were sufficiently thorough so

as to preclude the conclusion that Sather was ineffective. In its resolution of the issue the

District Court concluded that, under the first prong of the Strickland test, Worthan failed

to demonstrate that Sather’s performance was deficient. We agree.

¶19    Turning once again to the first prong of the Strickland test, which requires a

determination of whether the attorney’s actions were deficient, we begin by reiterating

that “‘the proper measure of attorney performance remains simply reasonableness under

prevailing professional norms.’” See Whitlow, ¶ 32 (quoting Strickland, 466 U.S. at 688,

104 S. Ct. at 2065). “[A] reviewing court ‘must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.’”

Whitlow, ¶ 21 (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065).

¶20    Here, while Sather failed to ascertain that Stube’s credential was invalid, that

failure does not fall outside the wide range of reasonable professional assistance in this

instance. As the District Court notes, prior to Stube testifying at trial, Sather met with

Stube, obtained and reviewed his curriculum vitae, discussed his Ph.D. degree with him
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and satisfied herself that Stube was a qualified expert witness. The record also indicates

that Stube represented to Sather at the time of their meeting that he had been qualified as

an expert witness on approximately fifty previous occasions. Furthermore, Stube’s sworn

testimony during the State’s examination indicates that he glossed over or even mislead

Sather as to the status of his Ph.D. While we are mindful of counsel’s duty to conduct a

reasonable investigation, State v. Hagen, 2002 MT 190, ¶ 26, 311 Mont. 117, 53 P.3d

885, we are satisfied that in this instance, Sather performed her duties in a manner

consistent with her responsibilities as defense counsel. By meeting with Stube and

reviewing what she thought to be his legitimate credentials, Sather performed her basic

duties as defense counsel. Thus, we affirm the District Court and conclude that Worthan

has failed to overcome the strong presumption that Sather’s conduct fell below the wide

range of reasonable professional assistance. Worthan’s rights to the effective assistance

of counsel were not violated.

¶21   Affirmed.

                                                /S/ W. WILLIAM LEAPHART

We concur:

/S/ MIKE McGRATH
/S/ PATRICIA O. COTTER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS




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