                                                                                        September 25 2007


                                            05-681

                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 243



STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

KIM LUCAS PARKER,

              Defendant and Appellant.



APPEAL FROM:           District Court of the First Judicial District,
                       In and For the County of Lewis and Clark, Cause No. ADC-2005-112
                       Honorable Dorothy McCarter, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Jennifer Streano, Public Defender’s Office, Helena, Montana

                For Respondent:

                       Hon. Mike McGrath, Attorney General; Jim Wheelis, Assistant Attorney
                       General, Helena, Montana

                       Leo Gallagher, County Attorney; Tara Harris, Deputy County Attorney,
                       Helena, Montana


                                                         Submitted on Briefs: January 10, 2007

                                                                  Decided: September 25, 2007


Filed:

                       __________________________________________
                                         Clerk
Justice John Warner delivered the Opinion of the Court.
¶1     Kim Lucas Parker (Parker) appeals from an order of the First Judicial District Court,

Lewis and Clark County, affirming his conviction in Helena Justice Court of the offense of

Partner or Family Member Assault.1 We affirm.

¶2     We restate and address the following issue on appeal: Did Parker receive ineffective

assistance of counsel because his lawyer did not object to testimony of the complaining

witness concerning his prior partner assault conviction?

                                        BACKGROUND

¶3     Parker was charged with Partner or Family Member Assault, § 45-5-209, MCA. The

alleged victim was his ex-wife, Cody Lodge (Lodge). On March 22, 2005, a jury found him

guilty of the charged offense.

¶4     Prior to trial, Parker filed a motion in limine to exclude evidence of prior crimes or

wrongs. The State did not object and the District Court granted the motion.

¶5     At the trial, the following dialogue occurred during the direct examination of the

complaining witness Lodge:2

       Q:      So, what did you do when he reached down to help you?
       A:      I’m trying to remember the whole scenario because it happened so
               quick. Well, I was like I said, I was on the floor and when he reached
               down to help me I just kind of turned. I slid backwards. I was
               crawling backwards because I didn’t know what was going to happen.
               I mean he’s never been physical with me before. I just didn’t know



1 The Helena Justice Court has been established as a justice court of record. Therefore, the appeal
to the District Court was confined to review of the record and questions of law. Section 3-10-115(1),
MCA.
2 The record presented to this Court does not contain a written transcript of the jury trial. However,
the District Court’s Decision and Order of August 30, 2005, recites verbatim the testimony repeated
herein. Neither party contests that this exact testimony was heard by the jury at the Justice Court
trial.

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             what was going to take place, so I just, he came on me he was on top of
             me at that point. . . .

¶6    The State then requested a recess to discuss a matter of law outside the presence of the

jury. A discussion was held in chambers, outside of the presence and hearing of the jury.

No record of the discussion was made. However, neither party disputes that the State moved

for an order allowing it to impeach Lodge by asking her questions relating to a prior

conviction of Parker for assaulting Lodge. Parker’s counsel did not object to the State’s

motion. The motion was granted.

¶7    After the recess, the State asked the following questions and Lodge gave the

following answers:

      Q:     Ms. Lodge, I just wanted to get back to something you said on direct.
             You had made the comment that the defendant had never been physical
             with you before?
      A:     Mmhm.
      Q:     Is that what you said, yes?
      A:     Well yeah, I mean anything else is I mean were [sic] just I don’t know
             how to explain it really.
      Q:     So, he’s never been physical with you before is what you had said, is
             that right?
      A:     Yes, Ma’am.
      Q:     Do you remember back in [sic] August 4th of 2002 the police being
             called out for another domestic violence situation where you were the
             victim?
      A:     In 2002?
      Q:     2002, you had been living at 2020 Livingston?
      A:     I don’t even remember the incident.
      Q:     Officers that responded were Jerry McGee, Jennifer Johnson, and Buck
             Herron. It was within the city of Helena.
      A:     I’m just trying to remember.
      Q:     Okay.
      A:     In 2002, okay now that I see the name on there yes I do.
      Q:     You remember that?
      A:     Yeah.


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       Q:     And, do you also know that the defendant was later convicted on
              October 11, 2002 for the assault?
       A:     Yes.
       Q:     And you were the victim in this assault, right?
       A:     I, yeah.

¶8     The jury found Parker guilty of partner or family member assault and the Justice

Court sentenced him. Parker then appealed his conviction to the District Court, arguing that

evidence of his prior conviction was erroneously admitted. The District Court affirmed the

Justice Court, holding that Parker’s reliance on his motion in limine did not preserve the

issue for appeal and that the testimony relating to Parker’s prior conviction was properly

admitted to impeach Lodge. Parker appealed to this Court.

¶9     We review evidentiary rulings to determine whether there has been an abuse of

discretion. A justice court and a district court have broad discretion to determine whether

evidence is relevant and admissible. Absent a showing of abuse of discretion, we will not

overturn a trial court's evidentiary determination. An abuse of discretion occurs when the

court acts arbitrarily without conscientious judgment or exceeds the bounds of reason. State

v. McCaslin, 2004 MT 212, ¶ 15, 322 Mont. 350, ¶ 15, 96 P.3d 722, ¶ 15 (citations omitted).



¶10    A claim of ineffective assistance of counsel presents mixed questions of law and fact

that we review de novo. State v. Grixti, 2005 MT 296, ¶ 15, 329 Mont. 330, ¶ 15, 124 P.3d

177, ¶ 15 (citation omitted).

¶11    Article II, Section 24, of the Montana Constitution and the Sixth Amendment of the

United States Constitution guarantee a person the right to the effective assistance of counsel.

This Court adopted the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.

                                              4
Ct. 2052 (1984), to evaluate claims of ineffective assistance of counsel. To establish that his

or her counsel was ineffective, a defendant must demonstrate (1) that counsel's performance

fell below the range of competence required of attorneys in criminal cases and (2) that

counsel's deficient performance prejudiced the defense. The defendant bears the burden to

show that his or her counsel's performance fell below an objective standard of

reasonableness. State v. St. Germain, 2007 MT 28, ¶ 33, 336 Mont. 17, ¶ 33, 153 P.3d 591, ¶

33 (citations omitted).

¶12    Parker contends Lodge’s testimony concerning his prior conviction was character

evidence prohibited by M. R. Evid. 404(b). Parker argues that his defense counsel was

ineffective because he made no objection on the record to that portion of Lodge’s testimony.



¶13    The State responds that the District Court properly admitted the evidence for purposes

of impeachment under M. R. Evid. 607. The State argues that because the evidence was

admissible, failure to make an objection cannot amount to ineffective assistance of counsel.

¶14    Whether the District Court properly admits evidence requires inquiry into both the

purpose of the testimony and the potential effect on the jury. When considering the

admissibility of evidence used to challenge the presumption of a witness’s truthfulness

through impeachment, consideration must be given to § 26-1-302, MCA, and M. R. Evid.

607, 401 and 403.

¶15    Section 26-1-302, MCA, provides as follows:

       A witness is presumed to speak the truth. The jury or the court in absence of
       the jury is the exclusive judge of his credibility. This presumption may be
       controverted and overcome by any matter that has a tendency to disprove the

                                              5
       truthfulness of a witness’s testimony; such matters include but are not limited
       to:
              ....

       (7) inconsistent statements of the witness;
       (8) an admission of untruthfulness by the witness;
       (9) other evidence contradicting the witness’s testimony.

¶16    The credibility of a witness may be attacked by any party. M. R. Evid. 607. If a party

objects to relevant impeachment evidence on the ground that it is unduly prejudicial, the trial

court must consider whether i t should be excluded because its probative value is

substantially outweighed by the danger of unfair prejudice. M. R. Evid. 403.

¶17    The District Court, in affirming the Justice Court, concluded:

                A review of the trial testimony discloses that Lodge’s credibility was a
       crucial factor in the prosecution of Defendant. Her descriptions at trial of the
       incident were in direct conflict with her initial reports to law enforcement.
       What began as a serious and painful physical assault by Defendant ended at
       trial as an accidental fall. The State had every right to impeach her testimony
       at trial by calling her on her statement that Defendant had never been physical
       with her before. The relevance of this testimony, in the Court’s opinion,
       outweighs any prejudice to Defendant. [M. R. Evid. 403].

¶18    We agree with the District Court. Lodge’s comment was gratuitous and did not

appropriately respond to the question the prosecutor asked. The evidence of Parker’s prior

assault conviction was not aimed at his character, but at the credibility of Lodge’s statement

that Parker had never been physical with her before. In light of the probative value and

purpose for which the evidence was admitted, we conclude that the Justice of the Peace did

not abuse his discretion in allowing it.

¶19    An instruction to the jury that it was to consider the evidence of Parker’s prior

conviction of partner or family member assault only as it might bear on Lodge’s credibility


                                              6
could have been appropriate. Parker has not argued that his counsel should have requested

such an instruction.

¶20    A failure to object to properly admitted evidence does not constitute ineffective

assistance of counsel. Clausell v. State, 2005 MT 33, ¶ 21, 326 Mont. 63, ¶ 21, 106 P.3d

1175, ¶ 21. In this case, Parker’s counsel’s lack of an objection to the evidence of his prior

conviction did not render him ineffective.

¶21    Affirmed.

                                                  /S/ JOHN WARNER


We Concur:

/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ JIM RICE




Justice Patricia O. Cotter dissents.

¶22    I dissent. I would conclude that counsel for the Defendant arguably rendered

ineffective assistance of counsel in registering no objection to the introduction of Parker’s

prior conviction, and in further failing to request any of the procedural and substantive

protections attendant to Just Notice that this Court has said must be implemented when

evidence of bad acts is to be placed before the jury.

¶23    According to M. R. Evid. 404(b), evidence of other crimes is not admissible to prove

the character of a person to demonstrate that he acted in conformity therewith; such evidence

may however be admitted for other purposes “such as proof of motive, opportunity, intent,

                                              7
preparation, plan, knowledge, identity, or absence of mistake or accident.” (Notably,

impeachment of the complaining witness is not among these exceptions.) We have been

called upon to address the requisites of this Rule many times. Recently, in State v. Ferguson,

2005 MT 343, 330 Mont. 103, 126 P.3d 463, we reiterated the procedural protections that

must be followed before and after evidence of prior bad acts is introduced, as previously

announced in State v. Ayers, 2003 MT 114, ¶ 77, 315 Mont. 395, ¶ 77, 68 P.3d 768, ¶ 77.

Among other things, at the time of the introduction of the evidence, the trial court must

explain to the jury the limited purpose for the admission of the evidence. Then, the court

shall, in its final charge, again instruct the jurors as to the limited purpose for the evidence,

and warn that the defendant is not being tried for the prior crime and may not be unjustly

convicted by them for the other offense. Ferguson, ¶ 48. These important safeguards were

not implemented here, nor did defense counsel ask for them.

¶24    The Court concludes that the relevance of the prior crime testimony outweighs any

prejudice to the Defendant. Under other circumstances, I might disagree yet conclude that

the decision was nonetheless within the permissible bounds of the trial court’s discretion.

Here, however, the evidence came in without any of the cautionary instructions which we

said in Ferguson must be implemented when such evidence is admitted. As a result, the

prejudice to Parker was manifest. At best, counsel should have objected to the admission of

the evidence in violation of the Order in Limine. At a minimum, once it became evident the

evidence would be admitted, counsel should have insisted on such instructions for the

protection of his client. The failure to do either was, in my judgment, arguably below the

objective standard of reasonableness and prejudicial to the Defendant. Strickland, 466 U.S.

                                               8
at 686, 104 S. Ct. at 2063-64. I would therefore either reverse outright on this basis or

dismiss for consideration in postconviction proceedings. I therefore dissent.



                                                              /S/ PATRICIA COTTER




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