                                           No. 03-366

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2004 MT 79N



DARELL McDONALD,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.


APPEAL FROM:         District Court of the Third Judicial District,
                     In and For the County of Granite, Cause No. DC 97-08,
                     Honorable Ted L. Mizner, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; John Paulson, Assistant
                     Attorney General, Helena, Montana

                     Blaine C. Bradshaw, County Attorney, Philipsburg, Montana



                                                   Submitted on Briefs: February 17, 2004

                                                              Decided: March 30, 2004


Filed:

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

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as

a public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result to the State Reporter Publishing Company and to

West Group in the quarterly table of nonciteable cases issued by this Court.

¶2     Darell McDonald’s conviction stems from his actions in November of 1996.

McDonald and his friend, Tucker, fired over a dozen shots at a herd of twenty elk that were

grazing in a fenced pasture near several hundred cattle. After a trial, the Granite County

Justice Court found McDonald guilty of: (1) hunting a bull elk without a proper license; (2)

failure to wear the required orange-colored garments while hunting; (3) five counts of

hunting more than one game animal; and (4) creating a hazard in the act of game hunting.

McDonald appealed to the District Court, and after a jury trial, with the exception of one of

the counts of hunting more than one game animal, was found guilty on each of the same

counts. With new counsel, McDonald appealed to this Court, claiming “plain error” owing

to comments of the prosecutor during his closing argument. We rejected this claim in our

decision State v. McDonald, 2000 MT 49N. McDonald petitioned the District Court for

postconviction relief, claiming ineffective assistance of counsel at trial and on appeal, and

that his consecutive sentences should be concurrent. The District Court denied his petition.

He now appeals that denial. We affirm.




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¶3      For the most part, McDonald’s claims of ineffective assistance of appellate counsel

hinge on his assumption that his trial counsel was ineffective. According to McDonald, his

appellate counsel was ineffective for failing to raise a claim of ineffective assistance of trial

counsel. Thus, in order to understand his claim of ineffective assistance of counsel on

appeal, we first address whether McDonald suffered from ineffective assistance of counsel

at the trial level.

¶4      We have adopted the two-part test from Strickland v. Washington (1984), 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 691, to measure whether the assistance of counsel was

effective. State v. Boyer (1985), 215 Mont. 143, 147, 695 P.2d 829, 831. Under the first

part, the petitioner must show that counsel’s performance was deficient. We apply a highly

deferential standard to review the strategic decisions an attorney must make during the trial

process. We indulge a strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance. Under the second part of the Strickland test, a

petitioner must prove that the ineffective assistance of counsel caused him to suffer

prejudice. If either part of the Strickland test would be dispositive, we need only address that

part of the test. We only address the first part of Strickland on each of McDonald’s claims.

¶5      McDonald claims that his trial counsel was ineffective in several discrete instances.

First, McDonald claims that his trial counsel had an inherent conflict of interest from his

continued representation of both McDonald and Tucker. According to McDonald, the dual

representation precluded him from asserting his own innocence independently of Tucker’s

guilt or innocence. Although trial counsel did not specifically discuss this aspect of dual


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representation, he did confer with McDonald and Tucker on several occasions about whether

or not they both wanted to continue with him as their counsel. In response, both McDonald

and Tucker continued to assert that they were both completely innocent and that their version

of events would corroborate their mutual innocence. Further, when McDonald brought up

the possibility of obtaining another attorney, trial counsel encouraged him to do so. When

the county attorney wanted to cut a deal with Tucker in return for testimony against

McDonald, trial counsel presented this issue to both Tucker and McDonald, individually and

jointly. However, they both decided to continue to assert their mutual innocence and to

continue with him as their counsel. Thus, although there was potential for a conflict of

interest, there was never an actual conflict of interest.

¶6     Secondly, McDonald claims that trial counsel was ineffective because he failed to

interview all of the potential witnesses or failed to meet the professional standard for

interviewing witnesses. McDonald’s trial counsel explained that many of McDonald’s

proposed witnesses did not have direct knowledge of the event. Trial counsel, his associate,

or his paralegal contacted every potential witness with direct knowledge of the event.

McDonald also claims that trial counsel was somehow ineffective in interviewing Bryan

Butler, who McDonald wanted to use as an expert in ballistics. Trial counsel presented

Butler’s deposition testimony, that Butler could identify the caliber of a given bullet based

on his personal experience in reloading. The District Court refused to consider Butler an

expert. McDonald claims that trial counsel somehow failed to sufficiently develop Butler’s

credentials as an expert. However, McDonald fails to make a showing that Butler had

sufficient credentials to be considered an expert. McDonald also claims trial counsel failed


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to interview witness White, who testified for the State. While trial counsel admitted to not

interviewing White until the day of trial, he already had White’s prepared written statement

and thus, was prepared for him at trial.

¶7     Third, McDonald claims his counsel was ineffective for failing to raise an issue about

the State’s failure to preserve exculpatory evidence. McDonald had attempted to give the

warden a bullet which McDonald had allegedly taken out of the carcass of the elk that he

admitted to shooting. The warden, however, refused to accept the bullet. McDonald claims

that analysis of the bullet would have proven that it was dissimilar to the bullets from the

other five elk that he was charged with killing and would have thus exonerated him.

Accordingly, he contends counsel was ineffective for failing to make an issue of the State’s

refusal to preserve exculpatory evidence. However, McDonald’s trial counsel makes clear

that he considered the issue, and due to problems with the chain of custody of the bullet,

declined to raise it as an issue.

¶8     McDonald also claims that his trial counsel erred in failing to request either a directed

verdict or a dismissal of the charge of hunting a bull elk without a license. The warden

testified at trial that while the spike elk had several wounds, they were only from one bullet.

McDonald argues that in order to be guilty of “hunting” an animal, you must kill the animal.

Thus, where the spike was killed by one bullet, logic dictates that only one of the defendants

can be found to have “hunted” it. Our statutory definition of hunting is much broader than

the narrow “successful killing” interpretation that McDonald advocates:

       “Hunt” means to pursue, shoot, wound, kill, chase, lure, possess, or capture
       or the act of a person possessing a weapon, as defined in 45-2-101, or using

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       a dog or a bird of prey for the purpose of shooting, wounding, killing,
       possessing, or capturing wildlife protected by the laws of this state in any
       location that wildlife may inhabit, whether or not the wildlife is then or
       subsequently taken. The term includes an attempt to take by any means,
       including but not limited to pursuing, shooting, wounding, killing, chasing,
       luring, possessing, or capturing.

Section 87-2-101(8), MCA (1995) (emphasis added). McDonald’s trial counsel reasonably

interpreted the statute to include the “hunting” activities of McDonald and Tucker. He thus

refused to make what he decided would be a meritless or frivolous motion–once again, a

strategic decision. Making another claim, McDonald similarly argues he could not have been

convicted of four counts of hunting more than one game animal, because one of the cow elk

had only one bullet. This claim is identical to his argument about shooting the spike bull elk.

As the discussion indicates, each of the decisions of trial counsel which McDonald now

faults was a strategic decision.

¶9     The record establishes that McDonald was, in the words of his trial counsel, an

“exasperating and demanding client” with a high degree of involvement in his case. In each

of the above-claimed instances of ineffective assistance, McDonald’s trial counsel conferred

with McDonald in regard to the decision at issue. The record establishes that each of these

issues was discussed with McDonald and that a strategic decision was made about each.

Thus, rather than a situation where counsel failed to take any action through negligence, or

ignorance of the law, we are presented with strategic decisions. The Strickland test does not

allow us to second guess strategic decisions. Rather, we give a high deference to counsel’s

strategic decisions. Therefore, we conclude that McDonald’s counsel at trial was not

ineffective.




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¶10    McDonald also claims that his counsel on appeal was ineffective. Just as he did in

regard to his trial counsel, McDonald also complains about strategic decisions made by his

appellate counsel. McDonald’s appellate counsel reviewed the case and McDonald’s claims

of error. Appellate counsel then made a strategic decision to appeal only one issue, the plain

error doctrine, which he said was done, in part, to encompass McDonald’s assertions of

ineffective assistance of trial counsel in failing to object to the prosecutor’s closing

argument. Because McDonald has failed to show that appellate counsel made this decision

through neglect, or through ignorance of the law, we conclude that counsel made an

informed and strategic decision to raise the single, best claim that he could. See Jones v.

Barnes (1983), 463 U.S. 745, 750-54, 103 S.Ct. 3308, 3312-14, 77 L.Ed.2d 987, 992-95.

Thus, rather than address the merits of each of the other issues McDonald claims should have

been raised, we only address counsel’s decision to raise one single issue. We give such

decisions great deference and conclude that appellate counsel was not ineffective in this

regard.

¶11    However, McDonald also claims that appellate counsel, in failing to raise a

constitutional challenge to § 45-8-113, MCA, acted in ignorance or under a mistake of law,

in which case the decision deserves no deference. McDonald claims that § 45-8-113, MCA

(1995), is unconstitutionally vague and ambiguous. That section provides: “ (1) A person

commits the offense of creating a hazard if he knowingly: . . . (e) being a person in the act

of game hunting, acts in a negligent manner or knowingly fails to give all reasonable

assistance to any person whom he has injured[.]” Section 45-8-113(1)(e), MCA (1995).

Neither McDonald’s trial counsel nor appellate counsel viewed this statute as unconstitu-

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tional. On appeal, McDonald claims both counsel were ineffective for failing to challenge

the statute as unconstitutionally vague or ambiguous. We disagree. The statute at issue here

uses the recognized legal standard of negligence. It is sufficiently written such that a person

of ordinary intelligence would reasonably know the statute makes it illegal to indiscrimi-

nately shoot at a herd of twenty elk feeding in a pasture alongside a herd of domestic cattle.

Neither McDonald’s trial counsel nor his appellate counsel was operating in ignorance or

under a mistake of law, and neither was ineffective for failing to raise this claim.

¶12    Lastly, McDonald claims the District Court erred in failing to address his petition to

change his consecutive sentences to concurrent sentences. However, McDonald could have

properly raised such a claim in his direct appeal. He is now precluded from raising the issue

on his petition for postconviction relief. Section 46-21-105, MCA. Therefore, the District

Court did not need to address this issue. The order of the District Court is affirmed.



                                                   /S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ JAMES C. NELSON
/S/ JOHN WARNER




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