                                                                                           March 22 2016


                                          DA 14-0584
                                                                                          Case Number: DA 14-0584

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 69



RUSTY LEE-RAY RUSSELL,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and For the County of Yellowstone, Cause No. DV 10-480
                       Honorable Ingrid G. Gustafson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Elizabeth L. Griffing, Axilon Law Group, PLLC, Missoula, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
                       Attorney General, Helena, Montana

                       Scott D. Twito, Yellowstone County Attorney, Ed Zink, Deputy County
                       Attorney, Billings, Montana



                                                  Submitted on Briefs: January 6, 2016

                                                             Decided: March 22, 2016


Filed:

                       __________________________________________
                                         Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Rusty Lee-Ray Russell appeals from the District Court’s Findings of Fact,

Conclusions of Law and Order dated July 7, 2014, denying his petition for postconviction

relief. We affirm.

¶2     We restate the issues on appeal as follows:

       Issue One: Whether Russell received effective assistance of counsel at trial based
       upon allegations that counsel failed to research and understand the principles of
       felony murder; failed to properly move for dismissal of that charge; and failed to
       offer proper instructions on felony murder.

       Issue Two: Whether Russell received effective assistance of counsel on appeal
       based upon allegations that counsel failed to understand the principles of felony
       murder and failed to attack the sufficiency of the evidence to support a conviction
       of that charge.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     On April 25, 2005, Russell and an acquaintance named Spotted Wolf spent a day

“drinking across Billings.” In the middle of the night they went into an alley-type area

behind some buildings to continue drinking in a place where they would not be seen by

police. In the alley Spotted Wolf saw a sleeping transient (Wallin). Spotted Wolf

confronted Wallin, striking him with his hands, demanding alcohol or money. Russell

then handed Spotted Wolf a knife that Russell had stolen earlier in the day, and Spotted

Wolf used it to slash Wallin across the face. Spotted Wolf then gave the knife back to

Russell, telling him to show what he was made of and what he could do. Russell used the

knife to stab Wallin several times.




                                            2
¶4    Russell then walked a few steps to where another transient (Gewanski) was

sleeping. Russell beat Gewanski and stabbed him multiple times with the knife, killing

him. Russell walked back to Wallin, and he and Spotted Wolf continued the assault as

Wallin tried to get away. Another man named Rideshorse was present and intervened to

stop the renewed attack on Wallin. Russell struck Rideshorse and said “Let’s do this

guy.” Spotted Wolf declined, and he and Russell fled.

¶5    Rideshorse went out into the street and hailed a police car. Wallin was seriously

and permanently injured by Russell and Spotted Wolf. Upon arrest, police found blood

from both Wallin and Gewanski on Russell’s clothing. Police recovered the knife from

Spotted Wolf and DNA from both victims was on it. Spotted Wolf pled guilty to charges

of deliberate homicide by accountability, to aggravated assault and to robbery.

¶6    The State charged Russell with deliberate homicide for the death of Gewanski

(charged as felony murder under § 45-5-102(1)(b), MCA); aggravated assault upon

Wallin; accountability for Spotted Wolf’s robbery of Wallin; and accountability for

Spotted Wolf’s aggravated assault of Wallin. The State charged the aggravated assault

upon Wallin as the underlying felony to support the felony murder charge against

Russell. In May 2005 a jury in Yellowstone County convicted Russell of each of the

charged offenses, and the District Court sentenced Russell to terms of imprisonment.

Russell appealed to this Court, which reversed the conviction for aggravated assault

against Wallin because it was an included offense of the charge of felony murder. This

Court affirmed the remainder of the convictions. State v. Russell, 2008 MT 417, 347

Mont. 301, 198 P.3d 271 (Russell I).

                                            3
¶7     In March 2010 the Criminal Defense Clinic at the University of Montana School

of Law filed a petition for postconviction relief on behalf of Russell. The petition

contended that Russell’s trial counsel were ineffective for failing to argue that the murder

of Gewanski did not occur in the course of the assault on Wallin, and therefore the facts

did not support the charge of felony murder.         The petition further contended that

Russell’s appellate counsel was ineffective for failing to argue that the aggravated assault

on Wallin was not sufficiently casually related to the attack on Gewanski to support the

felony murder charge. Eventually Russell filed an amended and a second amended

petition; the State responded; and both sides filed affidavits.        The District Court

conducted an evidentiary hearing on March 19, 2014.

¶8     Several witnesses testified at the hearing on postconviction relief. Penny Strong

was Russell’s lead attorney at trial and at that time was the Chief Public Defender for

Yellowstone County. She testified that she was experienced in the defense of homicide

cases, and that she had an adequate support staff and an excellent investigator who

identified and interviewed witnesses and examined the physical evidence.             Strong

personally examined the crime scene, describing it as a passage between two buildings,

covering a very small area. She estimated that the distance between the attack upon

Wallin and the attack upon Gewanski was smaller than the courtroom in which the

hearing was held. She testified that “there really wasn’t a separate crime scene for the

homicide that involved Mr. Gewanski. It was all one in the same.”

¶9     In a statement, Spotted Wolf described the distance between the attack upon

Wallin and the attack upon Gewanski as “a few steps.” The District Court found that the

                                             4
area in which the crimes occurred was small, 30 to 40 feet long, and that both assaults

“were committed close in time and space.” (Emphasis added.)

¶10    Strong testified that she researched felony murder issues and their application to

Russell’s case. She was unable to provide details of the research because she no longer

worked as a Public Defender and her work materials were not available to her for review

prior to the hearing. She was familiar with felony murder charges and believed that from

the defense perspective they made convictions easier to obtain. She recalled raising these

concerns in her trial brief and through proposed jury instructions. She believed that a

specific unanimity instruction was important in the context of a felony murder charge and

she offered one, which the District Court refused. She made a general motion to dismiss

all charges at the close of the State’s case-in-chief, based upon failure of proof.

¶11    Strong testified that she could not find any evidence to support Russell’s claim

that he was not present at the assaults and the murder. She stated that the State offered

plea agreements to both Russell and Spotted Wolf; that Spotted Wolf accepted the plea

agreement; and that Russell rejected it and chose to go to trial. She understood that the

State’s theory of felony murder against Russell was that he started the chain of events

that led to Gewanski’s death by giving his knife to Spotted Wolf to use in the initial

attack upon Wallin.      Strong’s co-counsel, attorney Claus, explained that prior to

sentencing he filed a motion on double jeopardy grounds to dismiss the felony murder

predicate offense of assault. In doing so, he argued that the attack upon Wallin and the

attack upon Gewanski were part of the same transaction and that therefore the aggravated



                                              5
assault was a lesser included offense of the homicide charge.           That argument was

ultimately successful in this Court on direct appeal.

¶12    Mark Murphy, the chief criminal deputy for the Yellowstone County Attorney,

prosecuted the case against Russell. He testified that he had no doubt that the death of

Gewanski happened during the course of the assault upon Wallin. Murphy described his

opinion of the evidence:

       With the review of all the evidence we had at the time, it seemed that all of
       the homicide flowed from the initial robbery, that that was the motivating
       factor that tied all of the activity together, it was the cause of the homicide.

He described the factual connection between the events:

       Well, it—it’s all part of a kind of a seamless whole, I mean there isn’t any
       break in the action, it happened in a very, very short time span, it happened
       in a very small area. (Emphasis added.)

Murphy believed that the evidence demonstrated that Spotted Wolf’s assault upon Wallin

was the “precipitating factor” in the events but that “it’s impossible to separate out any

one factor, they all moved in that direction [the murder of Gewanski] and followed from

the underlying felony.”

¶13    Murphy affirmed that during the course of the trial there were extensive

discussions among the District Court, the prosecution, and defense counsel about felony

murder, the analysis of continuous conduct, and numerous Montana cases bearing upon

the felony murder issues. He recalled that there was a “very vigorous discussion” about

jury instructions and that “Ms. Strong put forward her theory of the case in a very

professional manner.” Murphy also testified that Strong was “extremely competent”



                                              6
during the trial, giving as an example her cross-examination of witness Rideshorse, which

raised points that the prosecution had not previously considered.

¶14    Attorney Shannon McDonald, as an Assistant Appellate Defender, prepared the

brief for Russell’s direct appeal to this Court. She testified that her analysis of the trial

evidence convinced her that it did not

       permit an argument that the assaults on one victim were a separate
       transaction from the homicide of the other victim, or that there was a
       temporal break between the attacks. My memory of the evidence presented
       was that the crimes occurred in a short period of time, in a relatively small
       place, with the victims close together. (Emphasis added.)

She testified that the evidence presented at trial did not support an argument that the

crimes were separate transactions. She believed that the events, starting with the attack

on Wallin and ending with the murder of Gewanski, were “inextricably tied together.”

(Emphasis added.)

¶15    On July 8, 2014, the District Court issued detailed findings of fact regarding

Russell’s postconviction claims that his attorneys at trial and on appeal provided him

with ineffective assistance.1 The District Court found that Strong understood the felony

murder charge and the evidence that the State would present. The District Court found

that Strong had adequate time to prepare and that after examining the crime scene she

believed that the assault on Wallin and the death of Gewanski did not involve “two crime

scenes.” She understood the State’s theory of the case that the assault on Wallin “started


       1
         The District Court noted that Russell’s petition for postconviction relief raised
numerous other allegations that were not addressed at the hearing, but that were also not
withdrawn. In the present appeal Russell has likewise focused on the IAC claims and has not
addressed the other issues. We have no basis to review any other claims and decline to do so.
                                             7
the incident that included the death of Gewanski.” The District Court found that “Strong

understood the charge correctly.” She “researched application of the felony murder

rule”; believed that it made a conviction more likely; and believed that the specific

unanimity instruction that she offered would address her concerns.

¶16    The District Court found that the crime scene was small and that “the events were

committed close in time and space.” The entire scene from where Wallin was assaulted

to where Gewanski was killed was “only about 30-40 feet long.” The District Court

noted the testimony of attorneys Kelleher and Snodgrass, who represented co-defendant

Spotted Wolf. They investigated the scene and the facts and were “well aware of the

nature of the events.” They ultimately concluded that the State had properly charged

their client. Spotted Wolf pled guilty to charges of deliberate homicide by accountability,

to aggravated assault and to robbery.

¶17    As to appellate counsel McDonald, the District Court found that she raised three

issues on appeal, one of which was the successful argument that Russell could not be

convicted of both felony murder and the predicate offense of assault. The District Court

noted that McDonald believed at the time of direct appeal that the trial evidence did not

permit an argument that the Wallin and Gewanski attacks were separate and unrelated

events. At the time of the postconviction hearing, McDonald still construed the evidence

that way, and did not agree with Russell’s arguments on application of the felony murder

statute.   The District Court noted the testimony of prosecutor Murphy that his

construction of the facts was that “the initial assault [against Wallin] with the knife

caused everything that happened after that.”

                                               8
¶18    The District Court noted the testimony of Assistant Appellate Defender Koan

Mercer, who represented Russell on direct appeal after attorney McDonald left her

appellate defender position. Mercer testified that in his opinion there was insufficient

evidence at trial to support a felony murder conviction based upon his belief that there

were separate crimes involving the two victims. Mercer testified that no reasonable

attorney could hold a different opinion and that failure to reach such a conclusion fell

below the duty of care for attorneys. Because McDonald construed the facts differently,

Mercer testified that she provided ineffective assistance to Russell.

¶19    The District Court acknowledged the conflicting testimony on the viability of the

felony murder charge under the facts of Russell’s case. The District Court found that

Strong provided zealous representation throughout the trial, understood the charges, and

was knowledgeable and prepared.           The District Court concluded that Strong’s

representation was “anything but ineffective.” The District Court similarly found that on

appeal McDonald understood the felony murder charge and that after a “thorough review

of the record” determined that it did not support a two-crimes argument. The District

Court found that McDonald’s representation did not breach the standard of care and was

not ineffective.   The District Court concluded that it was “entirely reasonable” for

McDonald to interpret the evidence as showing that the assault and the homicide were

“inextricably intertwined.” The District Court determined that it was reasonable for

McDonald to conclude that the homicide would not have occurred but for the predicate

felony of the assault on Wallin.



                                             9
¶20    The District Court concluded that there was “no defect in the charging” of felony

murder and no deficiency in the State’s proof of the charge.           The District Court

concluded that Russell failed to establish that his attorneys at trial and on appeal were

ineffective with regard to the felony murder charge. The District Court concluded that

Russell killed Gewanski “in furtherance of the initial aggravated assault” upon Wallin.

The District Court concluded that when Spotted Wolf paused his attack upon Wallin,

handed the knife back to Russell and then exhorted him to show what he’s made of:

       Russell then acted immediately in furtherance of that initial aggravated
       assault by further escalating the violence against another victim. There was
       no break in time or space. These events took place within feet of one
       another. . . . The homicide occurred because of Spotted Wolf’s aggravated
       assault. (Emphasis added.)

The District Court concluded that this was sufficient to support the charge and conviction

for felony murder.

¶21    The District Court denied Russell’s petition for postconviction relief. This appeal

ensued.

                               STANDARD OF REVIEW
¶22    This case arises from a petition for postconviction relief filed pursuant to

§ 46-21-101, MCA. A district court considering a petition for postconviction relief may

hold an evidentiary hearing, § 46-21-201, MCA, and must enter findings of fact and

conclusions of law, § 46-21-202, MCA. The petition may not be based upon grounds for

relief that were or could reasonably have been raised on direct appeal. Rukes v. State,

2013 MT 56, ¶ 8, 369 Mont. 215, 297 P.3d 1195; § 46-21-105(2), MCA. The petition

must identify all facts that support the claims for relief, Kelly v. State, 2013 MT 21, ¶ 9,

                                            10
368 Mont. 309, 300 P.3d 120, and the petitioner has the burden to show by a

preponderance of the evidence that the facts justify relief. Griffin v. State, 2003 MT 267,

¶ 10, 317 Mont. 457, 77 P.3d 545.

¶23    We review the district court’s findings of fact to determine whether they are

clearly erroneous. Brimstone Mining, Inc. v. Glaus, 2003 MT 236, ¶ 20, 317 Mont. 236,

77 P.3d 175. A finding of fact may be clearly erroneous if it is not supported by

substantial evidence in the record; if the district court misapprehended the evidence; or

when our review of the record leaves this Court with the definite and firm conviction that

a mistake has been committed. Brimstone, ¶ 20. A district court’s interpretation of a

statute is a conclusion of law which we review for correctness. Montana State Fund v.

Simms, 2012 MT 22, ¶ 15, 364 Mont. 14, 270 P.3d 64.

¶24    This Court evaluates claims of ineffective assistance of counsel under the test

established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Whitlow

v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. First the defendant must show

that his attorney’s performance was deficient by demonstrating that it fell below an

objective standard of reasonableness. Whitlow, ¶ 14. There is a strong presumption that

the attorney’s performance fell within the wide range of reasonable professional

assistance, Whitlow, ¶ 15, because there are “countless ways to provide reasonable

assistance in any given case.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. A

petitioner seeking to reverse a district court’s order denying postconviction relief based

upon an allegation of ineffective assistance of counsel has a heavy burden. Bomar v.

State, 2012 MT 163, ¶ 5, 365 Mont. 474, 285 P.3d 396.

                                            11
¶25   Second, the defendant must show that his attorney’s deficient performance

prejudiced the defense.    Whitlow, ¶ 10.    This requires a showing of a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

                                     DISCUSSION

¶26   Issue One: Whether Russell received effective assistance of counsel at trial based
      upon allegations that counsel failed to research and understand the principles of
      felony murder; failed to properly move for dismissal of that charge; and failed to
      offer proper instructions on felony murder.

¶27   The offense referred to as felony murder is provided by § 45-5-102(1)(b), MCA:

             (1) A person commits the offense of deliberate homicide if:
             (b) the person attempts to commit, commits, or is legally
      accountable for the attempt or commission of robbery, sexual intercourse
      without consent, arson, burglary, kidnapping, aggravated kidnapping,
      felonious escape, assault with a weapon, aggravated assault, or any other
      forcible felony and in the course of the forcible felony or flight thereafter,
      the person or any person legally accountable for the crime causes the death
      of another human being . . . .

The underlying or predicate felony is “both an included offense and an element of felony

homicide.” Russell I, ¶ 24. The only causal connection required to constitute felony

murder is that “the death actually occurred during the underlying felony or the flight

thereafter.” State v. Burkhart, 2004 MT 372, ¶ 36, 325 Mont. 27, 103 P.3d 1037. When

a person commits a felony like aggravated assault, he initiates conduct that creates a

dangerous circumstance, and the intent to commit the felony supplies the intent for the

consequences that arise from it. Burkhart, ¶ 41.

¶28   Russell contends that he received ineffective assistance of counsel at trial because

his attorneys failed to adequately research the law on felony murder and then “proceeded

                                            12
under a fundamental misunderstanding of its elements.”          Russell contends that the

fundamental correlation of “time and place” between the underlying felony and the death,

as well as a causal connection between the underlying (predicate) felony and the death

are all missing from this case. He contends that all of the attorneys involved in the case,

both prosecution and defense, fundamentally misconstrued the facts and the law by

assuming that “close proximity of time and place was sufficient to prove felony murder.”

He contends that if only his attorneys had understood this, and had made the proper

motions and arguments, he would not have been convicted of felony murder. Russell

contends that the District Court fundamentally erred in the present proceeding by

concluding that Spotted Wolf’s exhortation of Russell to “see what he could do” with the

knife constituted the underlying felony.

¶29    The District Court’s findings of fact and conclusions of law do not support

Russell’s contentions. The District Court and all the attorneys involved on both sides of

the prosecution against Russell (except for Mr. Mercer) generally agreed about the facts

and how they related to felony murder. The amended information in Russell’s case

clearly establishes the aggravated assault upon Wallin as the predicate or underlying

felony in the felony murder charge. There is no support for Russell’s assertion that the

District Court (or any of the attorneys) failed to understand this. Specifically there is no

support for Russell’s assertion that the District Court determined that Spotted Wolf’s

exhortation of Russell after handing back the knife “constituted the underlying felony.”

That assertion makes little sense.



                                            13
¶30    The fact that Spotted Wolf handed the knife back to Russell and exhorted him to

do something is, however, critical in analyzing the causal connection of the events that

began when Russell and Spotted Wolf entered the alley and that ended with Gewanski’s

death. The overwhelming evidence is that the events in this assault and murder spree

occurred in a small area in a very short period of time. Those facts lay the groundwork

for determining whether there was a causal connection to the events that then happened.

¶31    As detailed in the District Court’s findings of fact, the events of that evening were

set in motion when Spotted Wolf began the assault upon Wallin in an attempt to extort

alcohol or money from him. The facts demonstrate that the assault dramatically escalated

when Russell handed Spotted Wolf the knife Russell had stolen earlier in the evening.

Spotted Wolf used Russell’s knife to slash the hapless Wallin across the face and then he

returned the knife to Russell with an admonition or exhortation to do something with it.

Russell took the knife the short distance to where Gewanski slept and stabbed and killed

him. Russell then immediately returned to Wallin, and he and Spotted Wolf continued

the initial assault, from which Wallin narrowly escaped with his life.

¶32    These events form a continuing narrative from the assault to the murder. While

Spotted Wolf’s exhortation of Russell to do something with the knife was an important

factor, there is no support for Russell’s assertion that the District Court (or anyone else)

considered the exhortation itself to be the underlying felony. “The felony homicide

charge in Count 1 was predicated on the charge for aggravated assault in Count II.”

Russell I, ¶ 18.



                                            14
¶33    As the District Court properly determined, the assault and the murder took place in

close proximity as to time and place, and the murder flowed in a continuous series of

actions from the assault against Wallin by both Spotted Wolf and Russell. Therefore

Russell was properly charged with and convicted of felony murder. There is substantial

evidence in the record to support the District Court’s findings of fact, and Russell has not

met his burden to demonstrate that the facts as found by the District Court were clearly

erroneous.

¶34    The District Court found, after hearing the testimony of those directly involved,

that lead trial attorney Strong properly understood the charge and the facts. The District

Court, having presided over both Russell’s trial and the postconviction relief proceeding,

was in a unique position to evaluate the performance of trial counsel with regard to the

felony murder charge. Russell failed to establish at the postconviction hearing that

attorney Strong was deficient as a matter of fact, and failed to establish on appeal that the

District Court’s findings of fact in that regard were clearly erroneous. Russell has not

demonstrated that the legal assistance provided to him fell below an objective standard of

reasonableness. Whitlow, ¶ 14. Russell has not overcome the strong presumption that the

attorney’s performance fell within the wide range of reasonable professional assistance,

Whitlow, ¶ 15.

¶35    Further, Russell failed to demonstrate that the outcome of the trial would have

been any different had Strong argued that the events in this case were insufficient to

constitute felony murder. There is no showing that such an argument would have been

successful in avoiding the charge of felony murder.

                                             15
¶36    We therefore affirm the District Court’s decision that Russell did not receive

ineffective assistance of counsel at trial.

¶37    Issue Two: Whether Russell received effective assistance of counsel on appeal
       based upon allegations that counsel failed to understand the principles of felony
       murder and failed to attack the sufficiency of the evidence to support a conviction
       of that charge.

¶38    All of these same considerations lead to the conclusion that the District Court

correctly determined that attorney McDonald did not provide ineffective assistance of

counsel on appeal. The District Court found that the evidence showed that McDonald

understood the law on felony murder, that she thoroughly reviewed the trial record, and

that she determined that the evidence would not support an argument that the facts failed

to support the charge of felony murder. Rather, she adopted a strategy, which was

ultimately successful, to challenge the convictions for both the homicide and the

underlying predicate felony assault. Other than offering attorney Mercer’s opinion, the

most that Russell established below was that attorneys might disagree about how to apply

the facts of this case to the felony murder statute. The District Court properly determined

that McDonald’s performance did not fall below the objective standard of reasonableness

for attorney representation.     As noted above, there are “countless ways to provide

reasonable assistance in any given case.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

¶39    We therefore affirm the District Court’s decision that Russell did not receive

ineffective assistance of counsel on appeal.




                                               16
                                       CONCLUSION

¶40    We affirm the District Court’s decision to deny Russell’s petition for

postconviction relief.


                                                /S/ MIKE McGRATH


We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JIM RICE


Justice Patricia Cotter, dissenting.

¶41    The Court concludes that the District Court and the attorneys on both sides of the

case generally agreed about how the facts related to and established felony murder.

Opinion, ¶ 28. Respectfully, I disagree. There was confusion—not agreement—about

what constituted the predicate felony for the felony murder charge. In addition, there was

a failure of proof of a causal connection between the two crimes so as to satisfy the

requirements of the felony murder rule.

¶42    At ¶ 6, the Court asserts that the State charged the aggravated assault upon Wallin

as the underlying felony to support the felony murder charge; notably, the Court does not

state whether it was Spotted Horse’s aggravated assault of Wallin or Russell’s aggravated

assault of Wallin that constituted the predicate offense. (Both were charged with

aggravated assault.) Trial counsel Penny Strong testified that the basis of the felony

murder charge against Russell was that Russell started the chain of events by giving his

                                           17
knife to Spotted Wolf, who used it in the initial assault upon Wallin. Opinion, ¶ 11. The

District Court concluded that the predicate felony was Spotted Wolf’s assault on Wallin.

Opinion, ¶ 20.     However, this Court concluded in Russell’s direct appeal that the

predicate offense was Russell’s assault upon Wallin. Russell I, ¶ 28. The fact that there

is still no clarity about whose offense constituted the predicate for the felony murder

charge against Russell underscores the flaw in the manner in which this case was charged

and tried, and the ineffective assistance of trial counsel in failing to grasp the elements of

the felony murder rule and pin down who committed the predicate offense.

¶43    If as the District Court concluded, the predicate felony was Spotted Wolf’s assault

on Wallin, then under § 45-5-102(1)(b), MCA, it would arguably be he who would be

guilty of felony murder, not Russell, because he would be the person who committed a

felony and in the course of that felony became accountable for the death of Gewanski.

Spotted Wolf’s malicious intent for the predicate offense cannot be transferred to Russell.

As we stated in State v. Weinberger, 206 Mont. 110, 115, 671 P.2d 567, 569 (1983): “In

adjudging a felony-murder, it is to be remembered at all times that the thing which is

imputed to a felon for a killing incidental to his felony is malice and not the act of

killing.” (Emphasis added).

¶44    I also submit trial counsel was ineffective for failing to challenge the charge of

felony homicide given the circumstances of the two crimes. Regardless of whose act

constituted the predicate offense, the fact is that no causal connection existed between the

aggravated assault on Wallin and the death of Gewanski. According to Spotted Wolf’s

testimony at trial, after he and Russell slashed and stabbed Wallin, he and Russell then

                                             18
decided “to go around to the other side [of the building] and just leave out to the North

Side ”; however, when they discovered their passage through that end of the alley was

blocked, “we just stopped for, you know, not too long, we just stood there and then, you

know, [Russell] went over here . . . [and] he was hitting another person” (Gewanski).

Russell, ¶ 51 (Nelson, J., dissenting).

¶45    In order for the felony murder rule to apply, “a causal connection between the

felonious act and the death must be present.” State ex rel. Murphy v. McKinnon, 171

Mont. 120, 127, 556 P.2d 906, 910 (1976). As Justice Nelson observed in his dissent in

¶ 53 of Russell I, we quoted with approval these statements by the Pennsylvania Supreme

Court in State v. Weinberger, 206 Mont. 110, 671 P.2d 567 (1983):

       The mere coincidence of homicide and felony is not enough to satisfy the
       requirements of the felony-murder doctrine. It is necessary . . . to show that
       the conduct causing death was done in furtherance of the design to commit
       the felony. Death must be a consequence of the felony . . . and not merely
       coincidence. (Internal quotations omitted.)

The facts as related by Spotted Wolf simply do not establish that the stabbing of

Gewanski was done “in furtherance of the design to commit” a robbery or assault upon

Wallin. Gewanski’s death was not a consequence of the assault upon Wallin; his death

was the result of a spontaneous drunken decision by Russell to kill a person sleeping by a

dumpster who had no connection whatsoever to Wallin.

¶46    For these reasons, I would conclude that trial counsel was ineffective. I would

further conclude that appellate counsel was ineffective for failing to challenge the State’s

proof of a causal connection between the two crimes so as to justify the felony murder

conviction, as well as the District Court’s conclusion that it was Spotted Wolf’s actions

                                            19
that constituted the predicate felony for the charge of felony murder against Russell. I

therefore dissent from the Court’s Opinion. I would add that all of these problems could

have been forestalled had the State charged and tried this case in a straightforward

manner in the first place.

                                                 /S/ PATRICIA COTTER


Justice Laurie McKinnon joins in the Dissent of Justice Patricia Cotter.


                                                 /S/ LAURIE McKINNON




                                            20
