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                                                                No. 98-503

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2000 MT 36N

                                                      STATE OF MONTANA,


                                                      Plaintiff and Respondent,

                                                                      v.

                                                   JESSE JAMES HIGAREDA,

                                                     Defendant and Appellant.

                           APPEAL FROM: District Court of the Second Judicial District,

                                              In and for the County of Silver Bow,

                                     The Honorable James E. Purcell, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                              Chad Wright, Appellate Defender Office; Helena, Montana

                                                            For Respondent:

                          Hon. Joseph P. Mazurek, Attorney General; Cregg W. Coughlin,

                                       Assistant Attorney General; Helena, Montana

                         Robert McCarthy, Silver Bow County Attorney; Brad G. Newman

                            and Samm T. Cox Deputy County Attorneys; Butte, Montana

                                          Submitted on Briefs: September 30, 1999

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                                                     Decided: February 11, 2000

                                                                    Filed:

                                    __________________________________________

                                                                     Clerk



Justice Jim Regnier delivered the opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Jesse James Higareda appeals from the Judgment and Order of Commitment entered by
the Second Judicial District Court, Silver Bow County. The dispositive issue presented on
appeal is whether Higareda's attorney provided ineffective assistance of counsel when she
failed to object to the State's improper comments concerning the credibility of a witness.
We affirm.

                                                          BACKGROUND

¶3 On June 25, 1997, Jesse James Higareda was charged by Information with three counts
of criminal sale of dangerous drugs, a felony, in violation of § 45-9-101(1), MCA (1995).
At arraignment, Higareda entered a plea of not guilty with regard to each of the three
counts. Following the Omnibus Hearing, the District Court set the matter for trial.

¶4 A jury trial was commenced on March 23, 1998. During deliberations the jury became
deadlocked on all three counts, requiring the District Court to declare a mistrial.
Subsequent to the mistrial, the State decided to retry Higareda on all three counts. A
second jury trial was commenced on June 2, 1998. On June 3, 1998, the jury found
Higareda guilty of all three counts of the felony offense of criminal sale of dangerous
drugs.


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¶5 The District Court conducted a sentencing hearing on July 30, 1998. After review of
the Pre-Sentence Investigation Report and consideration of the prosecutor and defense
counsel's arguments regarding sentencing, the District Court sentenced Higareda to a term
of 15 years on each count, to run consecutively. The District Court suspended 15 years of
the sentence imposed subject to specific terms and conditions. Following the sentencing
hearing, the District Court entered a Judgment and Order of Commitment. Higareda
appeals from the District Court's Judgment and Order of Commitment.

                                                  STANDARD OF REVIEW

¶6 "We review claims of ineffective assistance of counsel pursuant to the two-prong test
set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674." State v. Berg, 1999 MT 282, ¶ 11, 56 St.Rep. 1138, ¶ 11.

                                                             DISCUSSION

¶7 Whether Higareda's attorney provided ineffective assistance of counsel when she failed
to object to the State's improper comments concerning the credibility of a witness?

¶8 Higareda asserts that the State improperly promoted the credibility of the confidential
informant's testimony through personal opinions, the prestige of the county attorney's
office, and individual officers. Higareda further contends that his attorney's failure to
object to this prosecutorial misconduct prevented the jury from considering the informant's
testimony without the taint of State interference, which constitutes ineffective assistance
of counsel. The State responds that neither the record nor the law supports Higareda's
allegations. We agree.

¶9 The two-part test set forth in Strickland for ineffective assistance of counsel is as
follows:

         A convicted defendant's claim that counsel's assistance was so defective as to
         require reversal of a conviction or death sentence has two components. First, the
         defendant must show that counsel's performance was deficient. This requires
         showing that counsel made errors so serious that counsel was not functioning as the
         "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant
         must show that the deficient performance prejudiced the defense. This requires
         showing that counsel's errors were so serious as to deprive the defendant of a fair


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         trial, a trial whose result is reliable. Unless a defendant makes both showings, it
         cannot be said that the conviction or death sentence resulted from a breakdown in
         the adversary process that renders the result unreliable.

466 U.S. at 687, 104 S. Ct. at 2064. "[T]he proper standard for attorney performance is
that of reasonably effective assistance." Strickland, 466 U.S. at 687, 104 S. Ct. at 2064;
see also State v. Hanson (1997), 283 Mont. 316, 327, 940 P.2d 1166, 1173. "Under
Strickland, judicial scrutiny of counsel's performance must be highly deferential and the
reviewing court must indulge a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance." State v. McLain (1991), 249 Mont. 242,
245, 815 P.2d 147, 149 (citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2065).

¶10 We have previously held that it is improper for the prosecution to offer a personal
opinion regarding the credibility of a witness. See State v. Gladue, 1999 MT 1, ¶ 15, 293
Mont. 1, ¶ 15, 972 P.2d 827, ¶ 15 (citations omitted). "However, it is proper for a
prosecutor to comment on conflicts and contradictions in testimony, as well as to comment
on the evidence presented and suggest to the jury inferences which may be drawn
therefrom." Gladue, ¶ 15.

¶11 Upon careful review of the instances of prosecutorial misconduct alleged by Higareda,
we determine that the prosecution's comments and questioning were not improper. Neither
of the State's attorneys offered a personal opinion regarding the credibility of the
informant. The State's attorneys properly commented on conflicts and contradictions in the
testimony, commented on the evidence presented, and suggested to the jury inferences that
could have reasonably been drawn from the evidence. Thus, there was no basis for
Higareda's attorney to object on the ground that the State was improperly offering personal
opinion on the credibility of a witness. Accordingly, we conclude that Higareda cannot
satisfy the first prong of the Strickland test to establish that his attorney provided
ineffective assistance of counsel.

¶12 Affirmed.

                                                         /S/ JIM REGNIER

                                                               We Concur:

                                                        /S/ J. A. TURNAGE


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                                               /S/ WILLIAM E. HUNT, SR.

                                               /S/ TERRY N. TRIEWEILER

                                                     /S/ KARLA M. GRAY




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