                                                                                         October 22 2007


                                         DA 06-0304

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2007 MT 266



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

GARY CURTIS TENNELL,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Twenty-First Judicial District,
                      In and For the County of Ravalli, Cause No. DC 05-043
                      Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Jim Wheelis, Chief Appellate Defender, Helena, Montana

               For Appellee:

                      Honorable Mike McGrath, Attorney General; Mark W. Mattioli,
                      Assistant Attorney General, Helena, Montana

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



                                                  Submitted on Briefs: May 9, 2007

                                                             Decided: October 22, 2007


Filed:

                      __________________________________________
                                        Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1      Appellant Gary Tennell (Tennell) was charged with one count of negligent

homicide, in violation of § 45-5-104, MCA, and three counts of criminal endangerment,

in violation of § 45-5-207, MCA. The charges arose after Tennell, while driving south on

Highway 93, caused a fatal accident when he ran head-on into another vehicle after

crossing into the oncoming lane of traffic. Tennell appeals his conviction by jury on all

counts in the Twenty-First Judicial District Court, Ravalli County. We affirm.

¶2      Tennell raises the following issues on appeal:

¶3      1.   Did defense counsel’s withdrawal of his challenge for cause constitute

record-based ineffective assistance of counsel, and if not, should the withdrawal be

reviewed for plain error?

¶4      2. Did Tennell receive ineffective assistance of counsel when his trial counsel

failed to object when the State, during closing argument, misstated the content of a

witness’s testimony and offered a personal opinion about Tennell’s case?

¶5      3. Did trial counsel render ineffective assistance of counsel by failing to object

to character evidence?

¶6      4. Did cumulative error render Tennell’s trial unfair?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶7      In the early afternoon on February 2, 2005, Tennell was driving south on

Highway 93 just south of Lolo, Montana, when he struck Alice Day’s oncoming vehicle

head-on. Prior to the collision, multiple witnesses observed Tennell driving erratically

and dangerously for approximately ten miles, weaving in and out of traffic and passing
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vehicles by using the center northbound lane. Witnesses reported that Tennell was

driving too fast for the road conditions, which included travel at speeds of seventy or

eighty miles per hour in a fifty-five mile per hour construction zone. Witnesses also

noted that immediately prior to the accident Tennell did not appear to be aware of his

surroundings, and in fact appeared to be slumped against the driver’s door of his vehicle

as he drove. Ultimately, after two oncoming motorists narrowly avoided colliding with

Tennell, his vehicle struck Alice Day’s vehicle, killing her. Tennell did not brake or take

evasive action before the collision.

¶8       Montana Highway Patrol trooper Michael Bailey spoke with Tennell briefly at

the scene of the accident, and also in the emergency room shortly thereafter. In both

instances, Tennell stated that he had swerved to avoid hitting an animal in the roadway,

but no witnesses saw any animals on or near the highway immediately prior to the

collision. While Tennell made consistent, alert, and coherent statements shortly after the

accident, he later stated that he had no recollection of driving from Missoula prior to the

accident, of the accident itself, or of making any statements at the hospital. From a blood

sample it was determined that Tennell had no alcohol in his system, and there was no

evidence he had taken drugs or prescription medications.

¶9      A jury trial was held on August 29 and 30, and September 1, 2005. During voir

dire proceedings, defense counsel questioned Juror McGowan regarding his history in

law enforcement with the State of Alaska, and asked whether McGowan would be

inclined towards believing the testimony of law enforcement over the testimony of the

general public. Juror McGowan indicated that, if all else were equal and he needed to
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break a tie between conflicting facts, he would side with law enforcement’s version.

Defense counsel moved to dismiss McGowan for cause, and the State objected. Defense

counsel then continued questioning McGowan, and once again renewed its motion to

dismiss him for cause. At that point, the District Court asked McGowan about his ability

to apply the “beyond a reasonable doubt” standard, inquiring whether McGowan would

be able to disagree with law enforcement if he felt the evidence warranted a different

conclusion than law enforcement had reached. After McGowan agreed that he could do

so, defense counsel withdrew his motion to challenge McGowan for cause, and ultimately

used Tennell’s sixth peremptory challenge to strike Juror McGowan.

¶10     Testimony at trial included that of psychiatrist Michael Silverglat, whom Tennell

had consulted six months prior to the accident, seeking treatment for poor sleep and

possible depression. At their initial appointment, Dr. Silverglat tentatively concluded that

Tennell was suffering from sleep-disordered breathing. Dr. Silverglat recommended that

Tennell undergo a polysomnogram to determine what might be wrong with his sleep, and

suggested that Tennell do so soon because untreated sleep apnea could interfere with

one’s alertness and could cause other medical complications. Tennell did not take the

sleep test until after the accident, at which time Dr. Silverglat diagnosed Tennell with

severe obstructive sleep apnea.

¶11     During closing arguments, the prosecutor made the following remarks regarding

Dr. Silverglat’s testimony:

       Interestingly, you work in this sleepy idea in July of 2004, as Dr. Silverglat
       told us, he tells the Defendant, “There’s a possibility you have a sleep
       breathing disorder,” is the phrase he used.
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              And I said, “Well, I suppose you talked to him about what it means.”

               “Absolutely, I told him what it means. I told him the risks with it,
       the risk to his health, to the things around him, and urged him to get the
       tests so we could confirm it.”

               And what did the Defendant do? He blew it off. He absolutely blew
       it off. And now he wants you to let it excuse his gross conduct because he
       just didn’t know wrong. He knew. And he knew darn well he should do
       something about it. Because that’s exactly what Dr. Silverglat told him
       seven months before the crash.

Defense counsel did not object to these remarks during closing argument. Defense

counsel also did not object when the prosecutor later stated that he did not “put any stock

in” Tennell’s sleep apnea defense.

¶12     The jury ultimately found Tennell guilty of one count of negligent homicide and

three counts of criminal endangerment.       On October 26, 2005, the District Court

sentenced Tennell to concurrent ten-year terms in the custody of the Montana Department

of Corrections, with six suspended and a recommendation that Tennell be considered for

non-prison placement. Tennell appeals.

                              STANDARD OF REVIEW

¶13     Claims of ineffective assistance of counsel are mixed questions of law and fact

which we review de novo. State v. Morgan, 2003 MT 193, ¶ 7, 316 Mont. 509, ¶ 7, 74

P.3d 1047, ¶ 7.




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                                      DISCUSSION

¶14     Did defense counsel’s withdrawal of his challenge for cause constitute

record-based ineffective assistance of counsel, and if not, should the withdrawal be

reviewed for plain error?

¶15     Tennell argues that his trial counsel’s withdrawal of a motion to challenge Juror

McGowan for cause constituted ineffective assistance of counsel that, in concert with

McGowan’s statements, constituted structural error. According to Tennell, there was “no

apparent tactical or strategic reason for withdrawing [the] challenge for cause” after

McGowan indicated that he would give more weight to law enforcement’s testimony if

there was some dispute in the facts. Tennell also argues that even if his counsel’s

withdrawal of the challenge is deemed to be tactical and not record-based, this Court

should review the District Court’s failure to exclude Juror McGowan for plain error.

¶16     Both the Montana Constitution and the Sixth Amendment guarantee a person the

right to effective assistance of counsel. When reviewing ineffective assistance of counsel

claims, this Court applies the two-prong test set forth in Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2025 (1984). The burden is on the defendant to show that defense

counsel’s performance “fell short of the range of competence required of attorneys in

criminal cases and that his counsel’s deficient performance was prejudicial to his case.”

State v. Hendricks, 2003 MT 223, ¶ 6, 317 Mont. 177, ¶ 6, 75 P.3d 1268, ¶ 6. “There is a

strong presumption with regard to the first prong of the Strickland test that trial counsel’s

performance was based on sound trial strategy and falls within the broad range of


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reasonable professional conduct.” State v. Upshaw, 2006 MT 341, ¶ 32, 335 Mont. 162,

¶ 32, 153 P.3d 579, ¶ 32 (citing Hendricks, ¶ 7).

¶17     However, before reaching the merits of an ineffective assistance claim we must

first determine whether the claim is properly before the Court or instead should be raised

in a petition for post-conviction relief. Upshaw, ¶ 33. “The test to determine if an

ineffective assistance claim is properly brought on direct appeal is whether the record

contains the answer as to ‘why’ counsel took, or failed to take, action in providing a

defense.” Upshaw, ¶ 34 (citation omitted). If the record does not document allegations

of ineffective assistance of counsel, the claim must be pursued in a petition for post-

conviction relief. Hagen v. State, 1999 MT 8, ¶ 12, 293 Mont. 60, ¶ 12, 973 P.2d 233,

¶ 12. Regarding challenges for cause, we have said that “it is a mistake to assume that we

can determine from a cold record whether there was a tactical reason for not exercising a

challenge [for cause]. The reasons for counsel’s actions or inactions should not be

‘assumed’ but should be the subject of a postconviction evidentiary inquiry.” State v.

Hermann, 2003 MT 149, ¶ 30, 316 Mont. 198, ¶ 30, 70 P.3d 738, ¶ 30.

¶18     Here, the record is silent as to “why” Tennell’s counsel withdrew his challenge

for cause of Juror McGowan. The State offers and we can conceive of plausible reasons

for counsel’s decision to withdraw the challenge, but the record does not reveal the basis

for that decision. Therefore, Tennell’s complaint is not record-based and is inappropriate

for consideration on direct appeal.

¶19     Tennell alternatively argues that we should nonetheless undertake review of this

issue by the common law “plain error” doctrine. Tennell offers a very brief argument in
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support of this position and does not set forth how our failure to review the claimed error

“may result in a manifest miscarriage of justice, may leave unsettled the question of the

fundamental fairness of the trial or proceedings, or may compromise the integrity of the

judicial process.” State v. Godfrey, 2004 MT 197, ¶ 22, 322 Mont. 254, ¶ 22, 95 P.3d

166, ¶ 22 (citation omitted). However, because we do not know from the record whether

the withdrawal of the challenge was error, given the possible tactical reasons for the

withdrawal, we cannot undertake review of the issue by the plain error doctrine.

Godfrey, ¶ 38 (“A fundamental aspect of ‘plain error,’ is that the alleged error indeed

must be ‘plain.’”). Consequently, we dismiss Tennell’s claim of ineffective assistance of

counsel without prejudice to raising the claim in post-conviction relief proceedings.

¶20     Did Tennell receive ineffective assistance of counsel when his trial counsel

failed to object when the State, during closing argument, misstated the content of a

witness’s testimony and offered a personal opinion about Tennell’s case?

¶21     Tennell argues that statements by the prosecutor, Mr. Fulbright, during closing

argument amounted to misconduct, and that defense counsel rendered ineffective

assistance of counsel by failing to object. Tennell also argues that Mr. Fulbright’s

statement that he did not “put any stock in” Tennell’s sleep apnea theory was an

impermissible expression of personal opinion about Tennell’s credibility.

¶22     The testimony from Dr. Silverglat at trial indicated that he had urged Tennell to

undergo a polysomnogram in order to diagnose what Dr. Silverglat initially suspected

was Tennell’s sleep disorder. Dr. Silverglat explained to Tennell that a person with sleep

apnea could have trouble focusing, and that untreated sleep apnea could cause medical
                                             8
complications. However, Mr. Fulbright’s closing argument inferred that Tennell “knew”

from his visit to Dr. Silverglat that he was a risk to himself and his surroundings if he did

not take the sleep test. Tennell offers that, “under this version of what Dr. Silverglat said,

[the jury] would be left with the impression that Tennell had received a specific warning

about driving, about danger to those around him, and about unexpectedly falling asleep.”

¶23      We agree that Mr. Fulbright’s statements subtly exaggerated the content of Dr.

Silverglat’s warnings to Tennell, and further, that Mr. Fulbright offered a brief personal

opinion about Tennell’s credibility when he stated “I don’t put any stock in” Tennell’s

theory. These comments were improper, and we admonish prosecutors to avoid such

statements in the fulfillment of their duty to prosecute with honesty and integrity and in

accordance with ethical obligations.

¶24      Although these statements were improper, we cannot conclude that they rose to a

level of egregiousness that prejudiced Tennell or rendered the trial unfair. Dr. Silverglat

did indeed warn Tennell about possible consequences of his condition, and argument in

that regard was appropriate. Mr. Fulbright’s opinion comment was briefly made in

passing. We conclude, therefore, that any error by defense counsel in failing to object to

the State’s closing argument was ultimately harmless, and we affirm on this issue.

¶25      Did trial counsel render ineffective assistance of counsel by failing to object

to character evidence?

¶26      Tennell argues that his trial counsel should have objected when the State

presented evidence of Tennell’s erratic and aggressive driving leading up to the collision.

According to Tennell, his aggressive driving—in which he was constantly weaving in
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and out of other vehicles at speeds well in excess of the posted limit—occurred ten miles

before the accident and was “logically and temporally separate from the collision.” The

State responds that witnesses observed Tennell drive erratically for the entire ten miles,

not merely ten miles prior to the accident.

¶27      Tennell uses the term “character evidence” in his statement of issues, but

thereafter fails to cite this Court to any authority regarding the introduction of improper

character evidence and its application herein. Rather, Tennell argues the evidence of

erratic driving was “irrelevant.” However, the events preceding the accident were clearly

relevant and an objection on this basis would have been groundless. Tennell was charged

with negligent homicide and criminal endangerment after he crossed into the lane of

oncoming traffic and struck a motorist head-on, killing her.        Contrary to Tennell’s

argument, the fact that he had been driving erratically and aggressively for ten miles prior

to the collision cannot be said to be “logically and temporally separate from the

collision.” Rather, the opposite is true, as such evidence was closely related to the

charged offenses and explanatory of the circumstances surrounding those offenses.

¶28      Because we hold that evidence of Tennell’s erratic driving prior to the accident

was relevant, defense counsel had no reason to object to its introduction on this ground,

and Tennell thus did not receive ineffective assistance of counsel for his counsel’s failure

to so object.

¶29      Did cumulative error render Tennell’s trial unfair?




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¶30     Tennell argues that an amalgam of errors he has identified warrants reversal,

even if no single error does. In support of this argument, Tennell reiterates his primary

contentions under each of the issues discussed above.

¶31     “The doctrine of cumulative error requires reversal of a conviction where a

number of errors, taken together, prejudiced a defendant’s right to a fair trial.” State v.

Ferguson, 2005 MT 343, ¶ 126, 330 Mont. 103, ¶ 126, 126 P.3d 463, ¶ 126 (citations

omitted).    The defendant must establish prejudice; mere allegations of error are

inadequate to satisfy the doctrine. Ferguson, ¶ 126 (citation omitted).

¶32     We conclude that any error identified herein was not sufficient to reverse on the

doctrine of cumulative error.

¶33     Affirmed.


                                                        /S/ JIM RICE


We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ BRIAN MORRIS




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