                                                                                      October 9 2008


                                           DA 07-0342

              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2008 MT 342


DENISE HAMMER, f/k/a DENISE OLSEN,

               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 05-299
                      Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Edmund F. Sheehy, Jr., Regional Deputy Public Defender,
                      Missoula, Montana

               For Appellee:

                      Hon. Mike McGrath, Montana Attorney General; John A. Paulson,
                      Assistant Attorney General; Helena, Montana

                      George H. Corn, Ravalli County Attorney; William Fulbright,
                      Deputy County Attorney; Hamilton, Montana



                                                   Submitted on Briefs: August 6, 2008

                                                             Decided: October 9, 2008


Filed:

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

¶1     Denise Hammer appeals from the order of the District Court for the

Twenty-First Judicial District, Ravalli County, denying her petition for

postconviction relief. We affirm.

                           Factual and Procedural Background

¶2     The following uncontested facts are taken from the District Court’s order

denying postconviction relief and the parties’ briefs.     On February 13, 2002,

Denise Olsen, now known as Denise Hammer, was charged with one felony count

of arson in violation of § 45-6-103, MCA, and with making a false report to law

enforcement authorities, a misdemeanor in violation of § 45-7-205(b), MCA.

These charges arose from a fire that occurred in Hammer’s residence. Hammer

was tried by a jury of her peers in a five day trial, and was convicted of both

charges.

¶3     The central dispute in Hammer’s trial was whether the fire was deliberately

caused. The defense theory was that the fire originated in an electrical junction

box, and thus was accidental; while the State charged that the fire was deliberately

set with candles. Hammer’s defense counsel, with the court’s permission, retained

fire investigation expert Brian Hattem, who determined that an electrical short in

the junction box caused the fire. The junction box was sent to Richard Schefsky,

owner of Northwest Laboratories, who concurred with this conclusion, and wrote

a report to that effect.




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¶4     During trial, a scheduling conflict arose with the State’s expert.              A

discussion was held in chambers, where the State asked the court to allow its

expert to rebut Schefsky’s report during the State’s case in chief, essentially giving

his rebuttal testimony out of sequence. During this discussion, Hammer’s counsel

confirmed that, consistent with the witness and exhibits list, he did not intend to

call Schefsky to testify as an expert, rather he planned to introduce Schefsky’s

report as an exhibit. This was presumably because, in defense counsel’s words,

the report merely “verifies” the conclusion of fire investigation expert Brian

Hattem. This discussion resulted in the court, over defense counsel’s objection,

allowing the State’s expert to rebut Schefsky’s report before the defense

introduced the report as an exhibit. Because of this non-sequential rebuttal, the

court and jury were made aware of both the substance and conclusion of

Schefsky’s report during the prosecution’s case in chief.

¶5     During the defense’s case, after the testimony of Brian Hattem, defense

counsel called Schefsky as an expert witness.          Counsel questioned him in a

manner designed to elicit responses that would qualify him as an expert, which

resulted in a lengthy recitation of his work experience and education. However,

his testimony failed to produce any information that would tend to establish his

expertise in forensic electrical engineering. After a “long, rambling account”

covering “seven pages of trial transcript,” the court interrupted, stating “[t]his is all

completely useless information.” Defense counsel did not object to the court’s

statement, and continued in his attempt to elicit relevant qualifications from


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Schefsky. Voir dire by the State established that Schefsky lacked formal training

or experience in electrical engineering, and had only very general experience with

electrical work. Another attempt by defense counsel to qualify Schefsky was

similarly unsuccessful, and the court did not allow Schefsky to testify as an expert

witness. Defense counsel did not make an offer of proof as to either Schefsky’s

qualifications or the substance of his report.

¶6     Hammer filed a direct appeal to this Court alleging that: 1) the District

Court abused its discretion by not allowing one of her expert witnesses to testify;

2) the District Court committed reversible error by commenting on the

qualifications of her expert witness; and 3) she received ineffective assistance of

trial counsel. We affirmed Hammer’s conviction. State v. Olsen, 2004 MT 158,

¶ 1, 322 Mont. 1, ¶ 1, 92 P.3d 1204, ¶ 1. In so affirming, we declined to address

Hammer’s first two claims on the basis that she failed to lodge a contemporaneous

objection during trial, therefore those claims were waived and not subject to

appellate review. Olsen, ¶¶ 10, 12. We dismissed her claims for ineffective

assistance of counsel without prejudice, holding that such claims were more

appropriately raised in a petition for postconviction relief. Olsen, ¶ 17.

¶7     Hammer filed a petition for postconviction relief in the District Court,

alleging ineffective assistance of counsel on five grounds, two of which are

relevant to this appeal: 1) defense counsel’s failure to object to the District

Court’s allegedly improper comment on the qualifications of Hammer’s expert

witness Richard Schefsky; and 2) defense counsel’s failure to make an offer of


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proof after the court disqualified Schefsky as an expert. The District Court held an

evidentiary hearing in which Hammer’s defense counsel testified as to his

reasoning for not lodging an objection or making an offer of proof. In a lengthy

and thorough discussion, the court determined that Hammer’s claims for

ineffective assistance of counsel were without merit, and denied her petition for

postconviction relief. This appeal followed.

                                        Issues

¶8      We restate the issues on appeal as follows:

1.    Did Hammer’s defense counsel’s failure to object to the District Court’s

comment on Schefsky’s qualifications constitute ineffective assistance of counsel?

2.    Did Hammer’s defense counsel’s failure to make an offer of proof after

Schefsky was disqualified as an expert constitute ineffective assistance of counsel?

                                Standard of Review

¶9      We review a district court’s denial of a petition for postconviction relief to

determine whether the district court’s findings of fact are clearly erroneous and

whether its conclusions of law are correct. Whitlow v. State, 2008 MT 140, ¶ 9,

343 Mont. 90, ¶ 9, 183 P.3d 861, ¶ 9. However, ineffective assistance of counsel

claims are mixed questions of law and fact for which our review is de novo.

Whitlow, ¶ 9.

                                     Discussion

¶10     A defendant’s right to assistance of counsel is guaranteed by the Sixth and

Fourteenth Amendments to the United States Constitution, and Article II § 24 of


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the Montana Constitution. We analyze ineffective assistance of counsel claims

under the two part test articulated by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). A defendant

bears the burden of proving that: 1) the performance of defendant’s counsel was

deficient; and 2) that counsel’s performance prejudiced the defense. Whitlow, ¶ 10

(citing Strickland, 466 U.S. at 687). To prevail on an ineffective assistance claim,

a defendant must satisfy both prongs of this test. Whitlow, ¶ 11. Where the

defendant makes an insufficient showing as to one prong of the test, i t is

unnecessary to address the other prong. Whitlow, ¶ 11. A court reviewing an

ineffective assistance claim may approach the inquiry in any order. Whitlow, ¶ 11.

We have held that “[w]hen it is possible to dispose of an ineffective assistance of

counsel claim based on the claim’s failure to establish that the defendant was

sufficiently prejudiced, it is best to follow that course.” State v. Morgan, 2003 MT

193, ¶ 10, 316 Mont. 509, ¶ 10, 74 P.3d 1047, ¶ 10. Because we hold that

Hammer failed to demonstrate that her defense was prejudiced by her counsel’s

alleged errors, we need not inquire into whether counsel’s performance was

deficient.

¶11    To show prejudice sufficient to satisfy the second prong of Strickland, a

defendant must demonstrate that a reasonable possibility exists that, but for

counsel’s unprofessional error, the result of the proceeding would have been

different.   Morgan, ¶ 9.    The probability must be such that i t undermines

confidence in the outcome. Morgan, ¶ 9. The defendant bears the burden of


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identifying all facts supporting the grounds for relief in the petition for

postconviction relief, and must attach affidavits, records, or other evidence

establishing the existence of those facts. Section 46-21-104(1)(c) MCA; State v.

Peck, 263 Mont. 1, 3, 865 P.2d 304, 305 (1993).

¶12    In the instant case, Hammer does not directly identify how her defense was

prejudiced.     Rather she asserted in her petition for postconviction relief, and

presumably argues here, that defense counsel’s performance was presumptively

deficient, thus she need not make a showing of prejudice. She cites for this

proposition United States v. Cronic, where the Court held that a presumption of

ineffectiveness arises where “counsel entirely fails to subject the prosecution’s

case to meaningful adversarial testing.” 466 U.S. 648, 659, 104 S. Ct. 2039, 2047

(1984).   However, the Cronic Court gave specific examples of the limited

circumstances in which this situation would arise:

       No specific showing of prejudice was required in Davis v. Alaska,
       because the petitioner had been “denied the right of effective cross-
       examination” which “‘would be constitutional error of the first
       magnitude and no amount of showing of want of prejudice would
       cure it.’” Apart from circumstances of that magnitude, however,
       there is generally no basis for finding a Sixth Amendment violation
       unless the accused can show how specific errors of counsel
       undermined the reliability of the finding of guilt.

Cronic, 466 U.S. at 659 (internal citations omitted).

¶13    Circumstances of the magnitude described in Cronic are not present in the

instant case.    Nothing in the record indicates that Hammer’s counsel “failed

entirely to subject the prosecution’s case to meaningful adversarial testing.”



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Cronic, 466 U.S. at 659. Nor does the record indicate that any of counsel’s

alleged errors were sufficient to “undermine the reliability of the finding of guilt.”

Cronic, 466 U.S. at 659. Aside from relying on Cronic, Hammer does not identify

how her counsel’s performance was deficient enough to make the adversary

process and the result of the trial presumptively unreliable. Rather, she appears to

suggest that any failure to preserve an issue for appellate review amounts to a

presumptively deficient performance sufficient to make a showing of prejudice

unnecessary. Hammer fails to cite any authority in support of her assertion, and

we decline to adopt that proposition here.

¶14    While Hammer makes only conclusory assertions that her defense was

prejudiced by her counsel’s alleged errors, we nevertheless endeavor a review of

the limited record before us to determine whether the alleged errors were

potentially sufficient to prejudice Hammer’s defense.

¶15    Our review indicates that Hammer did not suffer prejudice sufficient to

undermine confidence in the outcome of the case by virtue of Schefsky’s

disqualification as an expert witness. First and most notably, Hammer had not

originally planned to call Schefsky as an expert witness, because his report merely

confirmed the conclusions of the primary defense expert, Brian Hattem. Second,

an offer of proof of the substance and conclusion of Schefsky’s report or as to his

expert qualifications was unnecessary. The District Court (and the jury) were

made aware of both the substance and conclusion of Schefsky’s report during the

State’s case in chief as a result of the out of sequence rebuttal of the report by the


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State’s expert. An offer of proof as to Schefsky’s qualifications as an expert in

forensic electrical engineering would have been similarly unavailing. Despite

diligent questioning both by defense counsel and the State that elicited testimony

covering more than seven pages of trial transcript which thoroughly describes his

entire education and work history in detail, Schefsky was unable to provide any

testimony that would tend to establish his expertise in forensic electrical

engineering. Any relevant educational, professional, or practical expertise was

already in the record. As defense counsel noted during the postconviction hearing,

there would have been nothing to put in an offer of proof that was not already

before the court.

¶16    Similarly, Hammer was not prejudiced by her counsel’s failure to object to

the court’s statement that Schefsky’s recitation of his professional and business

history was “completely useless.” Counsel’s attempt to elicit testimony that would

qualify Schefsky as an expert in forensic electrical engineering had produced

significant irrelevant testimony and consumed considerable time. The District

Court’s attempt to focus Schefsky’s testimony was properly within the bounds of

Rule 611, which provides that “the Court shall exercise reasonable control over

the mode and order of interrogating witnesses and presenting evidence so as to . . .

avoid needless consumption of time.” (Mont. R. Evid. 611(a)(2).) Any objection

to the court’s attempt to avoid needless consumption of time exploring irrelevant

professional history would have been without merit.




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¶17    A District Court is “vested with great latitude in ruling on the admissibility

of expert testimony.” State v. Crawford, 2003 MT 118, ¶ 30, 315 Mont. 480, ¶ 30,

68 P.3d 848, ¶ 30 (emphasis omitted). Further, “[t]he party presenting a witness as

an expert must establish, to the satisfaction of the trial court, that the witness

possesses the requisite knowledge, skill, experience, training, and education to

testify as to the issue in question.” State v. Russette, 2002 MT 200, ¶ 14, 311

Mont. 188, ¶ 14, 53 P.3d 1256, ¶ 14. As noted above, Schefsky was unable to

establish any expertise, professional or otherwise, in the field of forensic electrical

engineering. Neither an offer of proof nor an objection to the court’s comment on

Schefsky’s qualifications would have cured this want of qualification. There is no

reasonable possibility that defense counsel’s failure to object ultimately had any

bearing on the admissibility of Schefsky’s expert testimony, and hence could not

be sufficiently prejudicial to undermine our confidence in the jury’s verdict.

                                     Conclusion

¶18    In sum, Hammer has failed to demonstrate that her defense counsel’s

allegedly deficient performance was sufficiently prejudicial to undermine

confidence in the jury’s guilty verdict. Accordingly, she has failed to satisfy the

second prong of the Strickland test, thus her ineffective assistance of counsel

claim fails.



                                                  /S/ W. WILLIAM LEAPHART

We concur:


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/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ JOHN WARNER




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