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State v. Turnsplenty6/3/2003
should be more strict, particularly on repeat offenders.
Panelist Miller told the prosecutor that she was familiar with the fatal accident referenced by Panelist Deming, as the individual killed therein was her friend and a classmate. Miller stated that she believed drinking and driving was wrong, and that the DUI law in Montana was not strict enough because she had heard of repeat offenders who were "getting away with it."
Panelist Waage related that his wife and daughter were involved in a vehicle accident caused by a drunk driver who "just plowed into them, and he didn't really take time to look," but that they were not hurt in the accident. Waage expressed frustration over the driver in that matter leaving the state, and although the driver paid the damages, Waage indicated that repeat offenders should be off the streets.
Defense counsel did not ask further questions of Panelists Deming and Miller about the fatal accident they had referenced, nor about their ability to be impartial. Similarly, Panelist Waage was not asked about his ability to judge the matter impartially. Defense counsel did not challenge Deming, Miller or Waage for cause, or exclude them by way of peremptory challenge, and all three of them served on the jury. Further, defense counsel did not voir dire the jury concerning burden of proof, presumption of innocence, and a defendant's right not to testify.
Turnsplenty was convicted by the jury. He appeals.
DISCUSSION
Did Turnsplenty's trial counsel provide ineffective assistance of counsel during voir dire?
Turnsplenty claims his counsel rendered ineffective assistance during voir dire by failing to correct Panelist Boyer's statement that Turnsplenty would have to "state his case and prove it;" by failing to ask follow-up questions of Panelists Deming, Miller and Waage about their possible bias, and for allowing them to serve on the jury; and by failing to conduct voir dire concerning basic criminal law concepts such as burden of proof and presumption of innocence. The State argues that Turnsplenty's ineffective assistance of counsel claim is not record based and that his conviction should be affirmed.
In considering ineffective assistance of counsel claims, this Court has adopted the two-pronged test set forth by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. St. John, 2001 MT 1, 37, 304 Mont. 47, 37, 15 P.3d 970, 37 (overruled on other grounds). Under the first prong, the defendant bears the burden of showing that counsel's performance was deficient or fell below an objective standard of reasonableness. St. John, 37 . In so doing, the defendant must overcome a strong presumption that counsel's defense strategies and trial tactics fall within a wide range of reasonable and sound professional decisions. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; State v. Harris , 2001 MT 231, 18, 306 Mont. 525, 18, 36 P.3d 372, 18. The second prong requires the defendant to establish prejudice by demonstrating that there was a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Harris , 19. A defendant claiming ineffective assistance of counsel must ground his or her proof of facts within the record and not on conclusory allegations. St. John , 38.
Turnsplenty argues that the record adequately supports his claims of ineffective assistance, and that his counsel's errors are more egregious than those which occurred in State v. Chastain (1997), 285 Mont. 61, 947 P.2d 57. In Chastain , we considered defense cou
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