State v. D. Collins

2021 MT 59N

• Court: Montana Supreme Court
• Decided: March 9, 2021
• Docket: DA 19-0643
• Status: Unpublished

Opinion

03/09/2021

DA 19-0643 Case Number: DA 19-0643

IN THE SUPREME COURT OF THE STATE OF MONTANA 2021 MT 59N

STATE OF MONTANA,

Plaintiff and Appellee,

v.

DANIEL TODD COLLINS,

Defendant and Appellant.

APPEAL FROM: District Court of the Third Judicial District, In and For the County of Anaconda-Deer Lodge, Cause No. DC-18-121 Honorable Ray J. Dayton, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Tyson Allen McLean, Kris A. McLean Law Firm, PLLC, Missoula, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana

Ben Krakowka, Deer Lodge County Attorney, Anaconda, Montana

Submitted on Briefs: February 3, 2021

Decided: March 9, 2021

Filed:

cir-641.—if __________________________________________ Clerk Justice Beth Baker delivered the Opinion of the Court.

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

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2 Daniel Todd Collins appeals a jury verdict and judgment finding him guilty of

two counts of Criminal Child Endangerment in violation of § 45-5-628, MCA. Collins

argues that the District Court erred by denying his motion for a continuance to obtain expert

witnesses; denying his motion for a continuance to obtain private counsel; and denying his

motion for a mistrial due to prosecutorial misconduct. He argues that his trial counsel

provided ineffective assistance on the same issues. We affirm.

¶3 On November 2, 2018, Montana Highway Patrol Trooper Joseph Fowler arrested

Collins on suspicion of driving under the influence of alcohol. Because there were

two minors in the vehicle, the State charged Collins with two counts of Criminal Child

Endangerment in violation of § 45-5-628, MCA, along with several other misdemeanor

violations. Trial was set for April 22, 2019. At the final pretrial conference on April 3, the

District Court granted Collins a continuance of trial, over the State’s objection, to pursue

the possibility of obtaining a medical or other expert witness to explain a problem with

Collins’s eyes to rebut the State’s evidence of Collins’s poor performance on the

Horizontal Gaze Nystagmus (“HGN”) test. The court set the trial for late June. About

2 twenty days before the scheduled jury trial, Collins again moved for a continuance so that

he could save enough money to hire potentially two expert witnesses: one to examine the

previously discussed issue with Collins’s eyes that he claimed affected his performance on

the HGN test and another to testify on a potential medical issue with his liver, which he

claimed affected detection of his blood alcohol levels. The Office of Public Defender had

denied Collins funds for these potential experts. Collins presented no evidence of any

existing diagnosis for either condition and had neither retained nor found any experts to

perform any examinations. The District Court expressed skepticism at the practicality of

Collins being able to secure the funds for two experts and found the reasons for the motion

“wispy at best.” The District Court denied Collins’s motion for a continuance.

¶4 Collins’s trial commenced on June 24, 2019. The morning of trial, Collins pleaded

guilty to the misdemeanor charges, leaving only the two Criminal Child Endangerment

charges for the jury. Prior to voir dire, Collins again moved the court to continue his trial,

this time so he could retain private counsel in place of his public defender. Collins provided

the District Court with the number of a Missoula-based attorney with whom he had

consulted; the District Court called the Missoula attorney. The attorney stated that about

five days prior to trial he had a conversation with Collins and told him that representation

may be possible if the trial was continued. The attorney told the District Court, however,

that he considered Collins only a prospective client and they had never discussed any

substantive facts or the cost of any representation, nor had they signed any agreement.

After the call ended, Collins informed the District Court that he had the money to retain

3 the private attorney but had not told the attorney that because they “never got that far into

the conversation.” The District Court denied the motion and proceeded with trial.

¶5 The State called Trooper Fowler as its first witness. About halfway through his

direct examination, the parties went into chambers to discuss an issue regarding a juror.

The juror had come into possession of the prosecutor’s notes on Trooper Fowler’s

anticipated testimony. The prosecutor represented that he had been helping court staff tape

down an extension cord during the lunch break and must have inadvertently left his

examination notes on the juror’s chair. The District Court accepted the explanation as an

honest mistake and called the juror in for questioning. The juror stated that he was the only

person to see the notes, and no other juror had asked him about them. The juror

acknowledged that the notes contained the State’s examination questions and that some of

Trooper Fowler’s answers were not exactly the same as what the State anticipated. The

court dismissed the juror, replacing him with the alternate. Collins moved for a mistrial,

which the District Court denied. The jury found Collins guilty of both counts of

Criminal Child Endangerment.

¶6 Collins first argues that by denying his requests for continuance to secure

expert witnesses and to retain private counsel, the District Court violated his constitutional

rights. This Court reviews for abuse of discretion a district court’s ruling on a motion to

continue trial. State v. Garcia, 2003 MT 211, ¶ 10, 317 Mont. 73, 75 P.3d 313 (citation

omitted). “A district court abuses its discretion when it acts arbitrarily without the

employment of conscientious judgment or exceeds the bounds of reason resulting in

4 substantial injustice.” State v. Hardground, 2019 MT 14, ¶ 7, 394 Mont. 104, 433 P.3d 711

(citation omitted). A party seeking a continuance must demonstrate a sufficient level of

diligence in preparing for trial, and that a continuance is “in the interests of justice.” State v.

Duncan, 2008 MT 148, ¶ 37, 343 Mont. 220, 183 P.3d 111 (citation omitted). The District

Court determined that Collins had not demonstrated sufficient diligence in attempting to

secure either expert witnesses or private counsel. The District Court already had granted

Collins one continuance to pursue an expert. Collins did not present the District Court with

the names of any prospective experts or have an estimate of the costs associated with

retaining any such experts. Further, Collins did not provide any medical documentation or

affidavit evidencing that he indeed suffers from his claimed eye and liver disorders in the

first place, making any defense based on those disorders pure speculation. Collins’s

counsel represented the nature of the request was just to “have time to [] locate the expert

and try and flush [sic] it out.” Collins has not met his burden on appeal to demonstrate that

the District Court abused its discretion when it refused to continue the trial.

¶7 For similar reasons, the District Court did not abuse its discretion in denying

Collins’s motion for a continuance to attempt to retain private counsel. Collins had a

conversation with a private attorney just five days before trial and did not make his request

until the morning of voir dire. Collins did not discuss with private counsel the costs

associated with any possible representation, and there was no agreement that the

prospective private counsel would or could actually represent Collins if the trial were

continued. As it stood, Collins had a public defender familiar with his case and ready to

5 go to trial that day. Finally, Collins did not know what private counsel’s retainer would

be, and the District Court reasonably doubted Collins’s asserted ability to pay based on his

indigent status. Given the uncertainties and the timing of his request on the morning of

trial, Collins has not met his burden to show that he displayed diligence in seeking private

counsel or that a continuance was needed to further “the interests of justice.” The

District Court did not abuse its discretion by denying the motion.

¶8 Collins next argues that the prosecutor committed misconduct when he left his notes

on the juror’s chair, and the District Court should have granted a mistrial based upon that

misconduct. We review for abuse of discretion a district court’s ruling on a motion for

mistrial. State v. White, 2008 MT 129, ¶ 8, 343 Mont. 66, 184 P.3d 1008 (citation omitted).

“A district court’s decision to grant or deny a motion for mistrial must be based on whether

the defendant has been denied a fair and impartial trial.” State v. Bollman, 2012 MT 49,

¶ 33, 364 Mont. 265, 272 P.3d 650 (citation omitted). The District Court noticed a juror

reading from something midway through Trooper Fowler’s testimony. At that point the

court immediately called a recess and brought the matter to the attention of both parties in

chambers. Once the prosecutor admitted the juror was reading from his trial notes, the

District Court stated the juror would be replaced with the alternate. Further, the

District Court questioned the juror, who represented numerous times that he was the only

one with access to the notes and that no other juror had asked about them. There was no

evidence that any other juror saw or read the trial notes. The District Court based its

decision on its conscientious judgment that no further jury contamination occurred, and

6 there is no evidence suggesting any injustice that denied Collins a fair and impartial trial.

The District Court did not abuse its discretion in denying Collins’s motion for a mistrial.

¶9 Because we conclude that the State’s inadvertent action did not deny Collins a fair

and impartial trial, Collins cannot meet his burden to demonstrate prosecutorial

misconduct. See Clausell v. State, 2005 MT 33, ¶ 11, 326 Mont. 63, 106 P.3d 1175

(citation omitted) (“Misconduct by a prosecutor may form the basis for granting a new trial

where the prosecutor’s actions have deprived the defendant of a fair and impartial trial.”).

¶10 Finally, Collins argues he received ineffective assistance of counsel when his

defense counsel failed to secure an expert witness and failed to move the District Court to

question the remaining jurors on whether they had seen or considered the State’s notes.

Ineffective assistance of counsel claims are mixed questions of law and fact that this Court

reviews de novo. State v. Ugalde, 2013 MT 308, ¶ 28, 372 Mont. 234, 311 P.3d 772

(citation omitted). The record demonstrates that Collins’s public defender took reasonable

actions to acquire an expert witness by requesting funds from the Office of Public Defender

and by moving the District Court to continue the trial so that Collins could save up funds

for one. The record is also clear, however, that the public defenders’ office denied the

request and that Collins personally did not have available funds for an expert.

Defense counsel took reasonable steps to acquire expert witnesses under the circumstances,

and his lack of success does not constitute deficient performance.

¶11 We conclude further that defense counsel did not render deficient performance when

he did not move the District Court to question the jury on whether other members were

7 exposed to the prosecutor’s trial notes. The dismissed juror repeatedly and adamantly

stated that he alone handled or read the notes and that no other juror asked about what they

were. Considering the juror’s statements, there are valid tactical and strategic reasons why

defense counsel would not want to draw the jury’s attention to the matter any further.

See generally Garding v. State, 2020 MT 163, ¶ 16, 400 Mont. 296, 466 P.3d 501

(this Court indulges in a “strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance”); Strickland v. Washington, 466 U.S. 668, 689,

104 S. Ct. 2052, 2065 (1984) (the wide range of reasonable professional assistance includes

“sound trial strategy” decisions made by defense counsel).

¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review. The judgment is affirmed.

/S/ BETH BAKER

We Concur:

/S/ MIKE McGRATH /S/ INGRID GUSTAFSON /S/ DIRK M. SANDEFUR /S/ JIM RICE