Russell v. State

Russell v. State, 2016 MT 69 (March 22, 2016) (McGrath, C.J.; Cotter, J., dissenting) (5-2, aff’d)

Issue: (1) Whether Russell received effective assistance of counsel at trial, and (2) whether Russell received effective assistance of counsel on appeal.

Short Answer: (1) Yes, and (2) yes.

Affirmed

Facts: Russell and Spotted Wolf assaulted two men in an alley one night after drinking all day. One of the men died, and the other was seriously and permanently injured. Russell was charged with felony murder, aggravated assault, and accountability for Spotted Wolf’s robbery and aggravated assault. Russell was convicted by a jury in May 2005, and sentenced. Russell appealed and the Court reversed the conviction for aggravated assault against one victim, as it was an included offense of the felony murder conviction. The remaining convictions were affirmed. 2008 MT 417.

In March 2010 the criminal defense clinic at the UM School of Law filed a petition for postconviction relief on Russell’s behalf, contending trial counsel was ineffective for failing to argue that one victim’s murder did not occur during the assault on the other victim, and therefore did not support a felony murder charge. The petition further alleged that Russell’s appellate counsel was ineffective for failing to argue that the aggravated assault on one victim was not causally related to the attack on the murder victim, and could not support felony murder.

Procedural Posture & Holding: The district court held a hearing on the petition in March 2014. Several witnesses testified, including Russell’s lead trial attorney, who said there were not two separate crime scenes, “[i]t was all one in the same.” The district court found that both assault were committed close in time and space. Other witnesses gave similar testimony. The district court concluded both trial and appellate counsel provided effective representation to Russell, and that there was sufficient evidence to support the charge and conviction of felony murder. Russell appeals, and the Supreme Court affirms.

Reasoning: (1) “The overwhelming evidence is that the events in this assault and murder spree occurred in a small area in a very short period of time.” ¶ 30. Substantial evidence supports the district court’s findings, and Russell fails to show the facts were clearly erroneous. Russell fails to meet the first prong of Strickland, and fails to show that the trial outcome would have been different had his trial counsel argued that the events in this cases did not constitute felony murder.

(2) The same considerations lead to a conclusion that Russell’s appellate counsel also provided effective assistance.

Justice Cotter’s Dissent (joined by McKinnon, J.): Justice Cotter contends there was confusion, not agreement, about the predicate felony for the felony murder charge, and that a causal connection between the two crimes was not established sufficiently for felony murder.

It is not clear whether it was Spotted Wolf’s assault or Russell’s that formed the predicate felony, and yet it cannot be Spotted Wolf’s as his malicious intent cannot be transferred to Russell.

Additionally, the death must be a consequence of the predicate felony, not merely a coincidence. Justice Cotter would hold that trial counsel was ineffective for failing to raise these issues, and that appellate counsel was ineffective as well.