State v. Greene

January 6 2015
DA 12-0783
Case Number: DA 12-0783
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 1STATE OF MONTANA,
Plaintiff and Appellee,
v.
CHRISTOPHER DONALD GREENE,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-2011-415
Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender, Kristen L. Larson, Assistant
Appellate Defender; Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
Assistant Attorney General; Helena, Montana
Fred Van Valkenburg, Missoula County Attorney, Jason Marks, Deputy
County Attorney; Missoula, Montana
Submitted on Briefs: December 3, 2014
Decided: January 6, 2015
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Christopher Greene appeals from the judgment and sentence of the Montana Fourth
Judicial District Court, Missoula County, sentencing him to 100 years in the Montana State
Prison, with 60 years suspended, for failure to give notice of change of address by a sexual
offender. We affirm in part, reverse in part, and remand.
ISSUES
¶2 We review the following issues:
1. Did Greene receive ineffective assistance of counsel due to his attorney’s failure to
challenge a prospective juror for cause?
2. Did the District Court abuse its discretion by providing the jury with a portion of
the trial transcript during deliberation?
3. Did the District Court err by imposing an illegal sentence?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In 1994, Greene was convicted of felony sexual assault. He was committed to the
Department of Corrections and the Department of Health and Human Services for 20 years,
and he was required to register as a sexual offender upon his release. Greene was not
assigned a sexual offender tier level designation at this time.
¶4 On July 8, 2011, following his discharge from prison, Greene checked into the
Ponderosa Lodge in Missoula. On July 9, 2011, he registered with Missoula County and
reported the Ponderosa Lodge as his address. At that time he also signed a form regarding
rules for updating his registered address.
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¶5 On September 6, 2011, Detective Arianna Adams of the Missoula Police Department
attempted to contact Greene. She visited the Ponderosa Lodge, but she learned that Greene
had checked out of the Lodge on July 15, 2011. Since Greene had not updated his registered
address, a warrant was issued for his arrest.
¶6 On September 8, 2011, Randy Martinez, a Deputy United States Marshal, learned of
the warrant and contacted a probation officer familiar with Greene. The probation officer
told Martinez of a possible address for Greene. Investigating this address, Martinez found
and arrested Greene.
¶7 The State charged Greene with failure to give notice of change of address in
September 2011, and the case eventually proceeded to trial before a jury. During voir dire,
Greene’s counsel told the jury pool about Greene’s constitutional right not to testify. She
then asked the jurors whether they could “judge the case on the evidence that’s presented . . .
and not make any assumptions based on whether or not Mr. Greene chooses to testify.”
Responding to the question, Juror Belanger stated, “I’d have a hard time if he can’t explain
himself or testify himself and I’d have a -- I’d have a hard time making a decision.”
Belanger then confirmed that he thought “something to hide is the only explanation to not
wanting to get up on the stand and testify.” Counsel did not question Belanger further.
Ultimately, Greene’s counsel passed the jury panel for cause, and then exercised her
peremptory challenges. One of these challenges was used to remove Belanger.
¶8 At trial, the State questioned Adams; Martinez; Kristi Sangrey, who maintained
Missoula’s records for the sex offender registry; and Christopher Birdeau, an employee of
the Budget Inn (formerly the Ponderosa Lodge). Adams testified about her efforts to locate
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Greene in September 2011. Martinez testified about his efforts to locate and arrest Greene.
Sangrey testified to Greene’s registered address. Birdeau, who was not employed by the
Ponderosa Lodge during the dates in question, checked the Ponderosa Lodge’s business’
records and testified that he found no record of Greene staying there after July 2011. While
Greene’s counsel cross-examined several of the State’s witnesses, she did not cross-examine
Adams or present any testimony or evidence on Greene’s behalf.
¶9 Before the jury retired for deliberations, the District Court Judge instructed them to
submit to him any questions they might have. The Judge stated that while he might not be
allowed to answer the questions, he would consider any that were submitted. During
deliberations, the jury sent a note to the court, which asked: “Did Detective actually go to the
room at the Ponderosa or just check at [the] office[?]” In response, the District Court
prepared a partial transcript of Adams’ trial testimony. It read:
Q. (By [the STATE]) How did you go about trying to locate [Greene]?
A. (DETECTIVE ADRIANNA ADAMS) I checked the state registry and
found he was listed as living at the Ponderosa Lodge, 800 East Broadway,
number 124.
Q. Did you go there?
A. I did.
Q. Were you able to locate Mr. Greene there?
A. I was not.
Q. Did you -- were you able to learn if he was still staying there?
A. I did.
Q. What did you learn?
A. I learned that he had checked in on July 8th, and he had left on July 15th.
Q. Now at that point, did you know his whereabouts?
A. I did not at that point.
The District Court also prepared a cover to the transcript that stated: “In response to your
question concerning Detective Adams’ contact with the Ponderosa Lodge, the Court is
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attaching the relevant portion of the transcript.” Greene objected to providing the jury with
the prepared transcript, while the State did not. The District Court overruled Greene’s
objection and gave the jury the cover sheet and partial transcript. The jury subsequently
returned a guilty verdict.
¶10 Following an October 19, 2012 sentencing hearing, the District Court pronounced an
oral sentence. It sentenced Greene to 100 years in Montana State Prison, suspending 60 of
those years and restricting parole eligibility for 40. It also waived the applicable fines, fees,
and public defender fee and designated Greene a tier three sexual offender. On November 7,
2012, the District Court entered a written judgment. It departed from the sentence
pronounced in October and ordered Greene to pay fines and fees totaling $980. Greene
appeals.
STANDARDS OF REVIEW
¶11 Claims of ineffective assistance of counsel are mixed questions of law and fact.
Therefore, our review is de novo. State v. Herrman, 2003 MT 149, ¶ 18, 316 Mont. 198,
70 P.3d 738.
¶12 The decision to provide requested information to a jury is one of discretion. Section
46-16-503(2), MCA; State v. Evans, 261 Mont. 508, 511, 862 P.2d 417, 418 (1993).
Accordingly, we review such a decision for abuse of discretion. State v. Crawford, 2002 MT
117, ¶ 15, 310 Mont. 18, 48 P.3d 706.
¶13 We review a criminal sentence longer than one year for legality. State v. Holt,
2011 MT 42, ¶ 7, 359 Mont. 308, 249 P.3d 470.
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DISCUSSION
¶14 1. Did Greene receive ineffective assistance of counsel due to his attorney’s failure to
challenge a prospective juror for cause?
¶15 Greene argues that his counsel should have further questioned or challenged juror
Belanger for cause, rather than use a peremptory challenge to dismiss him. Greene contends
that this omission constituted ineffective assistance of counsel.
¶16 The United States and Montana Constitutions guarantee criminal defendants the right
to effective counsel. U.S. Const. amend VI; Mont. Const. art. II, § 24; State v. Racz,
2007 MT 244, ¶ 22, 339 Mont. 218, 168 P.3d 685. We apply the two-pronged test of
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984) to ineffective assistance of
counsel claims. State v. Chafee, 2014 MT 226, ¶ 19, 376 Mont. 267, 332 P.3d 240. Under
Strickland, a defendant must prove (1) that counsel’s performance was deficient, and (2) that
counsel’s deficient performance prejudiced the defense. Racz, ¶ 22.
¶17 These are fact-dependent considerations that usually can only be reviewed by
reference to a developed record. Accordingly, as a threshold matter when considering
ineffective assistance of counsel claims, we must determine whether a direct appeal or a
postconviction relief hearing is the more appropriate forum for the claim. State v. Kougl,
2004 MT 243, ¶ 14, 323 Mont. 6, 97 P.3d 1095. If we can discern from the record the reason
for counsel’s allegedly deficient act or omission, we can properly address the claim on direct
appeal. If, on the other hand, the record does not disclose the reason, the defendant must
raise the claim in a petition for postconviction relief. Kougl, ¶ 14. Postconviction relief
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allows the parties to develop a record and explore the reasons for counsel’s act or omission.
See Racz, ¶ 23.
¶18 We have recognized a narrow exception to this rule when there is “no plausible
justification” for counsel’s act or omission. In such cases, the record need not disclose
counsel’s reasons for the act or omission, and we will review the claim on direct appeal.
Kougl, ¶ 15. Greene concedes that the record in this case is silent as to why his attorney
failed to challenge Belanger for cause or further question him. He argues, however, that
there was no plausible justification for counsel’s failure to do so.
¶19 Greene asserts that counsel “had nothing to lose by following up with Belanger,” and
he claims that removing Belanger for cause rather than with a peremptory challenge was
“clearly to [Greene]’s advantage.” This conclusion, however, is not supported by the record,
and it is at odds with this Court’s precedent. In Herrman, we were unpersuaded by the same
argument that Greene makes here. Herrman, ¶ 31 (addressing Herrman’s argument that
“there is no tactic that would justify defense counsel removing a potential juror peremptorily
where that same person likely could have been successfully challenged ‘for cause.’”). As we
did in that case, we again recognize that “peremptory challenges involve a very different
dynamic than challenges for cause.” Herrman, ¶ 31. Considerations of timing and the
reasons for removal, for example, are often different in peremptory challenges than in
challenges for cause. Herrman, ¶ 31. Thus, we hold, as we did in Herrman, that without the
benefit of a postconviction relief proceeding, we cannot conclude that there was no plausible
justification for defense counsel to remove a potential juror peremptorily where the same
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person might have been successfully challenged for cause. Herrman, ¶ 32. Accordingly, we
dismiss Greene’s ineffective assistance of counsel claim without prejudice.
¶20 2. Did the District Court abuse its discretion by providing the jury with a portion of
the trial transcript during deliberation?
¶21 Greene argues that the District Court abused its discretion by providing the
deliberating jurors with the cover sheet and partial transcript of Adams’ testimony. He
claims that it placed undue emphasis on Adams’ testimony compared with the other
testimony and evidence presented at trial.
¶22 At common law, a trial court is not permitted to submit testimonial materials to the
jury for their unsupervised review during deliberation. State v. Harris, 247 Mont. 405, 416,
808 P.2d 453, 459 (1991). This rule has been modified by the Legislature, however. Section
46-16-503(2), MCA, permits a court to refresh a jury’s recollection of trial testimony under
certain circumstances. Harris, 247 Mont. at 417, 808 P.2d at 459. Specifically, it states:
After the jury has retired for deliberation, if there is any disagreement among
the jurors as to the testimony or if the jurors desire to be informed on any
point of law arising in the cause, they shall notify the officer appointed to
keep them together, who shall then notify the court. The information
requested may be given, in the discretion of the court, after consultation with
the parties.
Section 46-16-503(2), MCA. We have decided that this statute does not completely displace
the common law rule. Instead, the common law rule continues to prevent jury review of
testimony in most cases, while in limited circumstances § 46-16-503(2), MCA, permits
district courts, at their discretion, to supply information in response to jury requests. Evans,
261 Mont. at 512, 862 P.2d at 419; Harris, 247 Mont. at 417-18, 808 P.2d at 460.
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¶23 We have considered what kinds of materials may be submitted to the jury and in what
instances in several cases. In Harris, for example, the jury asked to review during
deliberations all of the testimony made by the alleged victim. The district court, over the
defendant’s objection, responded to the request by returning the jury to the courtroom and
reading the victim’s testimony in its entirety. Deciding that the district court abused the
discretion afforded to it by § 46-16-503(2), MCA, we reversed its decision. Harris, 247
Mont. at 416-17, 808 P.2d at 459-60. We quoted with approval a Wyoming Supreme Court
decision that applied a similar statute. Harris, 247 Mont. at 417, 808 P.2d at 460; Evans,
261 Mont. at 512, 862 P.2d at 419. The language that we considered to be relevant included:
[The statute] does not permit trial courts to repeat large amounts of testimony
just because the jury makes [a request to do so]. On the contrary, it requires
that the court discover the exact nature of the jury’s difficulty, isolate the
precise testimony which can solve it, and weigh the probative value of the
testimony against the danger of undue emphasis. If, after this careful exercise
of discretion, the court decides to repeat some testimony for the jury, it can do
so in open court . . . or under other strictly controlled procedures of which the
parties have been notified. . . . The more testimony the court repeats, the
greater danger of undue emphasis. Even with the best of procedures, it would
not be proper under the statute for the court to reread a transcript . . . just
because the jury wants to review all of the testimonial matter . . . . Undue
emphasis and delay would be too likely.
Harris, 247 Mont. at 417, 808 P.2d at 460 (quoting Chambers v. State, 726 P.2d 1269, 1276
(Wyo. 1986). We also specified that the kind of request contemplated by § 46-16-503(2),
MCA, “includes an inquiry concerning a witness’s testimony as to the width of a street, the
height of an object, distance, time or some other limited request, but not the entire testimony
of the witness.” Harris, 247 Mont. at 417, 808 P.2d at 460.
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¶24 We subsequently applied Harris in our decision in Evans. In that case, we affirmed
the district court’s refusal to comply with a request to hear the direct and cross-examination
testimony of a particular witness in response to a particular question. Evans, 261 Mont. at
510, 513, 862 P.2d at 418, 420. We noted that the touchstone for a district court in
exercising its discretion under § 46-16-503(2), MCA, is whether complying with the jury’s
request would unduly emphasize the testimony of certain witnesses, relative to the probative
value of that testimony. See Evans, 261 Mont. at 512-13, 862 P.2d at 419-20. Since the
request in Evans was not a request that “relate[d] to the evidence of a single witness,” and
instead was a request “to rehear testimony on a critical point of proof for which several
witnesses provided testimony,” we decided that the requested testimony “could have placed
undue emphasis on the answers given by [the witness] which related to a critical element of
the State’s case.” Evans, 261 Mont. at 513, 862 P.2d at 420. Accordingly, we decided that
the court did not abuse its discretion by refusing to permit the jury’s review of the testimony.
¶25 Here, the District Court did exactly what we determined in Harris and Evans was
required in reviewing a jury’s request for information. The court “discover[ed] the exact
nature of the jury’s difficulty” and “isolate[d] the particular testimony which c[ould] solve
the difficulty.” Evans, 261 Mont. at 512, 862 P.2d at 419; accord Harris, 247 Mont. at 417,
808 P.2d at 460. It then supplied that particular testimony, which was limited to the portion
of Adams’ testimony that addressed the jury’s question. Unlike the testimony in Harris, the
District Court did not include all of Adams’ testimony or even a significant portion. And,
unlike in both Harris and Evans, the testimony was limited to the evidence of a single
witness, was to a point that only Adams testified on, and was not on a critical point of proof.
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For these reasons, there was only a small risk of unduly emphasizing Adams’ testimony,
relative to the probative value of the testimony provided.
¶26 Greene, however, argues that our decision in Harris limits courts to responding to jury
inquiries only when the inquiry concerns details like “the width of a street, the height of an
object, distance, [or] time.” See Harris, 247 Mont. at 417, 808 P.2d at 460. Yet, while the
jury’s request in this case for information about whether Adams “actually [went] to the
room . . . or just check[ed] at [the] office” is for information arguably different than a width,
height, or distance, it is the type of “some other limited request” that we contemplated as
being allowed in Harris. Harris, 247 Mont. at 417, 808 P.2d 460. The testimony provided
to the jury in this case was on a specific and limited matter.
¶27 For the foregoing reasons, we hold that the danger of undue emphasis was outweighed
by the probative value of the testimony provided to the jury. Evans, 261 Mont. at 512,
862 P.2d at 419; Harris, 247 Mont at 417, 808 P.2d at 460. For this reason, the District
Court did not abuse its discretion by allowing the jury to review the portion of Adams’
testimony that it supplied.
¶28 3. Did the District Court err by imposing an illegal sentence?
¶29 Greene argues that the District Court erred when it pronounced an oral sentence
waiving “fines, fees, and surcharges and the public defender fee” and then ordered Greene to
pay fees and fines totaling $980 in its written judgment. We have held that the “oral
pronouncement of a criminal sentence in the presence of the defendant is the ‘legally
effective sentence and valid, final judgment.’” State v. Johnson, 2000 MT 290, ¶ 15,
302 Mont. 265, 14 P.3d 480 (quoting State v. Lane, 1998 MT 76, ¶ 40, 228 Mont. 286,
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957 P.2d 9). The State concedes that the written judgment unlawfully increased Greene’s
sentence and that we should reverse the written judgment. We agree, and we remand for the
purpose of correcting the written judgment.
¶30 Greene also argues that failure to give notice of change of address is not a sexual
offense and that for this reason the District Court exceeded its authority by imposing a sexual
offender tier level designation as part of Greene’s sentence. We have held that if an offense
is not designated a sexual offense in § 46-23-502(9), MCA, then there is no statutory
authority that permits a sentence for the offense to include a sexual offender tier level
designation. State v. Holt, 2011 MT 42, ¶ 21, 359 Mont. 308, 249 P.3d 470. The State
concedes that failure to give notice of change of address is not a sexual offense under
§ 46-23-502(9), MCA, and that the District Court erred by imposing a sex offender tier level
designation. We agree with the parties and remand to the District Court for the purpose of
striking the sex offender tier level designation.
CONCLUSION
¶31 For the foregoing reasons, we dismiss Greene’s ineffective assistance of counsel
claim, affirm the District Court’s decision to provide a portion of Adams’ testimony to the
jury for their review, and remand to the District Court for the purpose of correcting its
written judgment and striking the sex offender tier level designation. We affirm in part,
reverse in part, and remand.
/S/ MICHAEL E WHEAT
We Concur:
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/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
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