                                                                                       November 20 2007


                                           05-317

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2007 MT 303N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

SHANE BRYAN McCLANAHAN,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Fourth Judicial District,
                      In and For the County of Missoula, Cause No. DC-2001-422
                      Honorable John S. Henson, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Nicholas P. Anderson, Anderson & Anderson, PLLP, Missoula, Montana

               For Appellee:

                      Hon. Mike McGrath, Attorney General; C. Mark Fowler, Assistant Attorney
                      General, Helena, Montana

                      Fred Van Valkenburg, Missoula County Attorney; Dale Mrkich and Jennifer
                      Johnson, Deputy County Attorneys, Missoula, Montana



                                                          Submitted on Briefs: March 7, 2007

                                                                Decided: November 20, 2007

Filed:

                      __________________________________________
                                        Clerk
Justice John Warner delivered the Opinion of the Court.
¶1     Pursuant to Section 1, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be cited

as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and

its case title, Supreme Court 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     Shane McClanahan appeals from his conviction in the Fourth Judicial District,

Missoula County, on two counts of attempted deliberate homicide. On October 9, 2001,

McClanahan was charged with two counts of attempted deliberate homicide and one count of

assault. The charges arose from an incident at a party in Huson, Montana, on September 9,

2001, that resulted in the stabbing of two young men, Charles Morris and Doug Knight.

¶3     McClanahan attended the party with a friend, Loren Hanson. During the evening,

Hanson became involved in an altercation with another man at the party. McClanahan

claims he attempted to assist Hanson and was attacked by Morris and Knight, so he stabbed

them in self-defense.     Several witnesses for the State contradicted this claim and

characterized him as the aggressor.

¶4     At a jury trial in July 2002, defense counsel submitted medical records of

McClanahan’s injuries and elicited testimony from McClanahan to support his self-defense

argument. Counsel also offered a jury instruction defining “beyond a reasonable doubt” that

the District Court rejected in favor of the instruction contained in the Montana Criminal Jury

Instructions. The jury did not accept McClanahan’s claim of self-defense and convicted him

on two counts of attempted deliberate homicide. On November 19, 2002, the District Court


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sentenced McClanahan to 100 years with 25 years suspended on each count, to run

concurrently.

¶5     McClanahan appeals his conviction on two grounds. First, he claims he received

ineffective assistance of counsel because his trial counsel did not provide any expert medical

testimony to support the claim of self-defense. Second, McClanahan asserts the District

Court erred in its instructions to the jury regarding reasonable doubt because he believes the

pattern instruction is unconstitutional.

¶6     We review de novo a claim of ineffective assistance of counsel. State v. Trull, 2006

MT 119, ¶ 9, 332 Mont. 233, ¶ 9, 136 P.3d 551, ¶ 9.

¶7     To determine whether a defendant received ineffective assistance of counsel at trial,

we ask whether (1) counsel’s performance fell short of the range of competence required of

attorneys in criminal cases and (2) there is a reasonable probability counsel’s deficient

performance prejudiced the outcome of the case. State v. Deschon, 2004 MT 32, ¶ 31, 320

Mont. 1, ¶ 31, 85 P.3d 756, ¶ 31. The Court engages in a “strong presumption that counsel’s

defense strategies and trial tactics fall within a wide range of reasonable and sound

professional decisions.” State v. Harris, 2001 MT 231, ¶ 18, 306 Mont. 525, ¶ 18, 36 P.3d

372, ¶ 18. We have consistently held that decisions related to presenting a case, such as what

witnesses to call, constitute trial tactics and strategy, and we will not conclude that counsel is

ineffective based on such decisions. Weaver v. State, 2005 MT 158, ¶ 25, 327 Mont. 441, ¶

25, 114 P.3d 1039, ¶ 25.

¶8     Nothing in the record before us indicates that McClanahan’s trial counsel was

ineffective for declining to call an expert medical witness to support the defense of justifiable
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use of force. Trial counsel pursued the defense by cross-examining the State’s witnesses,

eliciting testimony from McClanahan, and introducing medical records of McClanahan’s

injuries. The jury chose not to accept McClanahan’s version of the facts. Counsel’s decision

to pursue these strategies and not to call a medical expert is a matter of trial tactics that falls

within the wide range of discretion we accord counsel. Harris, ¶ 18. We conclude

McClanahan has not demonstrated that counsel’s performance fell short of the required level

of competence, and his claim of ineffective assistance of counsel must fail.

¶9     We review jury instructions in a criminal case to determine whether the instructions,

as a whole, fully and fairly instruct the jury on the applicable law. State v. Vernes, 2006 MT

32, ¶ 20, 331 Mont. 129, ¶ 20, 130 P.3d 169, ¶ 20.

¶10    McClanahan argues the District Court erred because it used a jury instruction to

explain reasonable doubt that was based on Montana Criminal Jury Instruction No. 1-004.

He claims this instruction does not adequately describe the high level of proof required for a

criminal conviction. The District Court instructed the jury that:

       Proof beyond a reasonable doubt is proof of such a convincing character that a
       reasonable person would rely and act upon it in the most important of his or
       her own affairs. Beyond a reasonable doubt does not mean beyond any doubt
       or beyond a shadow of a doubt.

We have previously approved an identical jury instruction. State v. Goodwin, 249 Mont. 1,

14-15, 813 P.2d 953, 961 (1991), overruled on other grounds, State v. Turner, 262 Mont. 39,

50, 864 P.2d 235, 241 (1993). See also State v. Lucero, 214 Mont. 334, 344, 693 P.2d 511,

516 (1984) (approving the use of pattern jury instruction on reasonable doubt). We conclude

the District Court did not err in instructing the jury.

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¶11   Affirmed.

                              /S/ JOHN WARNER


We Concur:

/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JAMES C. NELSON
/S/ JIM RICE




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