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State v. Turnsplenty6/3/2003
nsel's failure to challenge for cause or to exercise a peremptory challenge to a juror who had indicated strong feelings unfavorable to Chastain. Reviewing the record on Chastain's appeal from his conviction, we concluded that, "where, as here, defense counsel abandons his client's right to challenge a juror for no apparent reason, error must be attributed to the lawyer." Chastain , 285 Mont. at 65, 947 P.2d at 60.
Recently, in State v. Herrman , 2003 MT 149, 316 Mont. ___, ___ P.3d ___, we revisited our holding in Chastain , and determined that "in Chastain , it was a mistake for the Court, based on the lack of a reason 'apparent' on the record, to determine that counsel was ineffective in voir dire examination." Herrman , 28. Herrman involved a defense counsel's failure during voir dire to ask follow-up questions to panelists who had expressed reservations about being impartial, or to challenge them for cause. Herrman , 20. Concerning defense counsel's failure to challenge a panelist for cause, we held:
t is a mistake to assume that we can determine from a cold record whether there was a tactical reason for not exercising a challenge. The reasons for counsel's actions or inactions should not be "assumed" but should be the subject of a post-conviction evidentiary inquiry.
For the above-stated reasons, we overrule Chastain 's holding that a claim of ineffective assistance of counsel for failure to challenge prospective jurors in voir dire can be determined from a record which is silent as to the lawyer's reasoning.
Herrman , 30, 33. We further concluded that none of Herrman's claims regarding his counsel's actions during voir dire could be addressed without considering matters outside the record, and were therefore appropriate for post-conviction relief, citing our holding in State v. St. John When the record does not provide the basis for the challenged acts or omissions of counsel, a defendant claiming ineffective assistance of counsel more appropriately makes his claims in a petition for post-conviction relief. St John , 40.
Herrman , 33.
In Harris we explained that for a claim to be adequately documented for review on direct appeal the record available to this Court on appeal must afford sufficient understanding of the reasons for counsel's act or omission to answer the threshold question of whether the alleged error expresses a trial strategy or tactical decision. [Citations omitted.] If the record does not supply the reason for counsel's act or omission, the claim must be raised by petition for post-conviction relief. St. John , 40 [citations omitted]. In deciphering the use of the record and the appropriate forum for adjudicating ineffective assistance claims, we explained:
Though not easily distilled into a formula, the definitive question that distinguishes and decides which actions are record and which are non-record, is why ? In other words, if counsel fails to object to the admission of evidence, or fails to offer an opening statement, does the record fully explain why counsel took the particular course of action? If not, then the matter is best-suited for post-conviction proceedings which permit a further inquiry into whether the particular representation was ineffective. Only when the record will fully explain why counsel took, or failed to take, action in providing a defense for the accused may this Court review the matter on direct appeal.
Harris , 21 (citing State v. White , 2001 MT 149, 20, 306 Mont. 58, 20, 30 P.3d 340, 20).
The voir dire errors claimed by Turnsplenty, i.e., that his counsel failed to ask follow-up questions and to challenge panelists
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