                                         No. 02-653

              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2003 MT 285


STATE OF MONTANA,

             Plaintiff and Respondent,
        v.

WILLIAM RONALD HENDERSON,

             Defendant and Appellant.



APPEAL FROM:        District Court of the Eleventh Judicial District,
                    In and for the County of Flathead, Cause No. DC-2000-197B
                    The Honorable Katherine R. Curtis, Judge presiding.



COUNSEL OF RECORD:

             For Appellant:

                    Glen Neier, Kalispell, Montana

             For Respondent:

                    Mike McGrath, Montana Attorney General, Jennifer Anders, Assistant
                    Montana Attorney General, Helena, Montana; Ed Corrigan, Flathead County
                    Attorney, Kalispell, Montana



                                                       Submitted on Briefs: September 18, 2003

                                                                 Decided: October 9, 2003
Filed



                    __________________________________________
                                      Clerk
Justice James C. Nelson delivered the Opinion of the Court.


¶1      William Ronald Henderson (Henderson) appeals the judgment entered by the

Eleventh Judicial District Court, Flathead County, on a jury verdict finding him guilty of

attempted deliberate homicide and guilty of using a firearm during the commission of

attempted deliberate homicide.

¶2     We address the following issue on appeal and dismiss:

       Did Henderson’s attorney provide ineffective assistance of counsel when he asserted
       in his opening statement that the jury would hear from Henderson but ultimately did
       not call Henderson as a witness?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶3     After a day of excessive drinking, Henderson shot his brother, Duane Scott Henderson

(Scott) in the face with a .44 caliber handgun. Scott survived the shooting, but lost use of

his right eye and was permanently disfigured and severely brain damaged. Scott died two

years later at a nursing home.

¶4     During his trial, Henderson relied on the defense of justifiable use of force. He

argued that during an altercation with Scott, the handgun accidentally fired. However, the

jury concluded otherwise.

¶5     Since Henderson’s defense was justifiable use of force, his attorney, David Stufft

(Stufft), argued during his opening statement that the jury would hear evidence that Scott

was attacking Henderson. As a result of this altercation, Stufft argued that the handgun

accidentally fired.



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¶6    Specifically, Stufft argued the following:

      Ron tells us, and you’re gonna hear from Ron--you’re gonna hear from Ron
      on a video that the sheriff’s department took--you’re gonna hear from Ron
      telling people “Look at my neck, I was choked. Can you see where I’ve been
      choked?”

      Ron had everything going for him, up until his brother came in that night to
      the shop. Ron had everything going for him. That--we’ll hear from Ron and
      everybody else that Ron didn’t throw a one-fisted punch at the father or at the
      brother. Ron’s not backing up, Ron is being pushed backwards. Ron is being
      hit until he finally falls into not this saw but another saw. And when he comes
      up and he gets up on the back of him they’re still at it. Scott is choking him.
      Ron pulls that gun not to fire the shot, but--in whatever happened, if arms hit
      arms or who knows what happened--the gun fires.

¶7    Stufft concluded his opening statement with the following:

      Now, here’s a guy who’s been beaten and beaten and smacked around and, in
      all reality, has a concussion and can’t remember what happened. And he sits
      in jail with an ice pack, or they give aspirin or some other basic drugs, and
      waits for five days until they can check out his headache, his swollen jaw, his
      sore ribs. That’s what the evidence is gonna show, people.

¶8    Despite this argument, the jury never heard Ron testify, as Stufft did not call him as

a witness. The jury convicted Henderson of attempted deliberate homicide and use of a

firearm during the commission of that crime.

¶9    Henderson now appeals his conviction and sentence.

                              STANDARD OF REVIEW

¶10   Ineffective assistance of counsel claims are mixed questions of fact and law. State

v. Herrman, 2003 MT 149, ¶ 18, 316 Mont. 198, ¶ 18, 70 P.3d 738, ¶ 18. Thus, we review

an ineffective assistance of counsel claim de novo. Herrman, ¶ 18.

                                     DISCUSSION

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¶11    Did Henderson’s attorney provide ineffective assistance of counsel when he
       asserted in his opening statement that the jury would hear from Henderson but
       ultimately did not call Henderson as a witness?

¶12    Henderson maintains that because he was not called as a witness, as Stufft promised

the jury, the jury only heard one side of the story. As a result, Henderson argues that the

jury was not afforded the opportunity to deliberate on his defense of justifiable use of force.

¶13    The State of Montana (State) argues that Stufft did not promise the jury that they

would hear from Henderson. Rather, the State argues that Stufft’s statements demonstrate

he was leaving his options open until the State presented its case.

¶14    We apply a two-pronged test when addressing ineffective assistance of counsel

claims. First, an individual claiming ineffective assistance of counsel must establish that

performance of his counsel was deficient. Second, an individual must establish that

counsel’s deficient performance was prejudicial. Strickland v. Washington (1984), 466 U.S.

668, 682, 104 S.Ct. 2052, 2061-62, 80 L.Ed.2d 674; State v. Whitlow, 2001 MT 208, ¶ 17,

306 Mont. 339, ¶ 17, 33 P.3d 877, ¶ 17.

¶15    We have recently addressed two ineffective assistance of counsel cases in Herrman,

and in State v. Turnsplenty, 2003 MT 159, 316 Mont. 275, 70 P.3d 1234. Both cases

involved claims that counsel improperly exercised their challenges for cause and their

peremptory challenges.

¶16    In addressing Herrman’s claims, we noted that it was a mistake for us to “assume,”

as we did in State v. Chastain (1997), 285 Mont. 61, 947 P.2d 57, that we could “determine

from a cold record whether there was a tactical reason for not exercising a challenge [for

                                              4
cause].” Herrman, ¶ 30. Consequently, we overruled Chastain on that basis. Hermann, ¶

33. We held in Hermann, that the reasons for counsel’s actions “should be the subject of a

postconviction evidentiary inquiry.” Herrman, ¶ 30. Further, we held that we could not

conclude whether counsel had a strategic plan for exercising a peremptory challenge, rather

than a challenge for cause, without the benefit of a postconviction hearing. Herrman, ¶ 32.

¶17    Similarly, in Turnsplenty, we relied on Herrman in holding that we could not address

Turnsplenty’s claim of ineffective assistance of counsel without considering matters outside

the record. Turnsplenty, ¶ 18. Hence, we dismissed his claim, as it was not record based and

would be more appropriately raised within a postconviction relief proceeding. Turnsplenty,

¶¶ 18, 21.

¶18    Here, Henderson’s claim does not involve a challenge for cause or a peremptory

challenge, as in Herrman and Turnsplenty. However, Henderson’s argument still raises the

question why Stufft took the particular course of action he did, namely in not calling

Henderson as a witness after stating to the jury that his client would testify. We decline to

speculate on why defense counsel did not call his client to testify in view of his opening

statements. As we explained in State v. Harris, 2001 MT 231, 306 Mont. 525, 36 P.3d 372,

if the record does not disclose fully why counsel took a particular action, then “the matter

is best-suited for post-conviction proceedings which permit a further inquiry into whether

the particular representation was ineffective.” Harris, ¶ 21. Whether Stufft had a tactical

or strategic reason for not calling his client to testify, given his opening statements, is best

explored in an evidentiary hearing in a postconviction proceeding.

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¶19   We hold that Henderson’s claim of ineffective assistance of counsel is not sufficiently

record-based, and, accordingly, we dismiss this appeal.

¶20   Dismissed.


                                                 /S/ JAMES C. NELSON


We Concur:

/S/ KARLA M. GRAY
/S/ JIM RICE
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART




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