State v. Greene, 2015 MT 1 (Jan. 6, 2015) (Wheat, J.) (5-0, aff’d, rev’d in part)
Issue: (1) Whether Greene’s ineffective assistance of counsel claim was reviewable on postconviction relief; (2) whether the lower court erred in providing jury with a portion of the testimony; and (3) whether the written sentence unlawfully increased the oral sentence.
Short Answer: (1) No; (2) no; and (3) yes.
Affirmed in part, reversed in part
Facts: Greene was convicted of felony sexual assault in 1994. He was required to register as a sexual offender upon his release from prison, although not assigned a sexual offender tier level designation.
After being discharged from prison in July 2011, Greene registered his address with Missoula County, and signed a form regarding rules for updating his address. He moved from this address a few days later and did not update his registration. He was arrested in September 2011.
During voir dire, a member of the jury pool said he would think the defendant was hiding something if he didn’t testify. Greene’s counsel eventually passed the jury for cause, and used a peremptory challenge to remove this juror.
Greene’s counsel did not cross-examine the detective who determined Greene was not at the motel he had listed on his registration. During deliberations, the jury sent a note to the court asking whether the detective actually visited Greene’s room at the motel, or just checked at the office. In response, the court prepared a partial transcript of the detective’s testimony, which it gave to the jury over Greene’s objection.
Procedural Posture & Holding: The jury found Greene guilty of failing to update his sexual offender registration. The lower court sentenced him to 100 years in the Montana State Prison with 60 suspended, and restricted parole eligibility for 40 years. It also designated Greene a level three sexual offender. At the oral sentencing, the court waived applicable fines, fees, and public defender fees, but imposed them in the written sentence. Greene appeals, and the Supreme Court affirms in part and reverses in part.
Reasoning: (1) The court dismisses the ineffective counsel claim without prejudice, holding 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 person might have been successfully challenged for cause.” ¶ 19.
(2) Although a trial court could not submit testimonial materials to a deliberating jury for its unsupervised review, § 46-16-503(2) allows a court to refresh a jury’s recollection of trial testimony under limited circumstances. The “touchstone” for a district court under the statute is “whether complying with the jury’s request would unduly emphasize the testimony of certain witnesses, relative to the probative value of that testimony.” ¶ 24. Because that is what the district court did here, the Court affirms.
(3) The State agrees that the written judgment unlawfully increased the oral sentence and should be reversed. The Court agrees and remands for correction of the written judgment.