                                                                                           April 7 2009


                                         DA 06-0624

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2009 MT 114



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JEREMIAH C. GREEN,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Twentieth Judicial District,
                      In and For the County of Lake, Cause No. DC-05-21
                      Honorable Deborah Kim Christopher, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Cathleen O. Sohlberg, Office of Public Defender; Missoula, Montana

               For Appellee:

                      Hon. Steve Bullock, Montana Attorney General; John A. Paulson,
                      Assistant Attorney General; Helena, Montana

                      Mitchell A. Young, Lake County Attorney; Polson, Montana



                                                  Submitted on Briefs: November 21, 2007

                                                             Decided: April 7, 2009


Filed:

                      __________________________________________
                                        Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Appellant Jeremiah C. Green was convicted of two counts of deliberate homicide

by accountability, and one count of tampering with evidence after a jury trial in the

Twentieth Judicial District Court, Lake County. Green appeals the District Court’s

judgment and commitment. We affirm.

¶2     We address the following issues on appeal:

¶3     1. Did Green’s trial counsel render ineffective assistance by failing to request that

the jury be instructed to view accomplice testimony with distrust?

¶4     2. Did the District Court err by admitting evidence of Green’s prior statement that

he would like to kill the victim?

¶5     3. Did the District Court abuse its discretion by overruling Green’s objection to

the prosecutor’s offering a personal opinion on the credibility of a witness during closing

argument?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶6     In the early morning hours of February 3, 2005, Troy McDonald shot and killed

Gerald Sirucek and Catherine Madplume. Testimony elicited at Green’s trial indicated

that the previous day, Gerald Gardipee was staying at Green’s father’s house in rural

Ronan when Green showed up in his jeep with Sirucek, Madplume, and Madplume’s

brother. They hung around for awhile drinking beer and shooting a .22 caliber pistol

Green had with him, having stolen it from his cousin several weeks before. When the

beer ran out in the early afternoon, the group left and returned to Ronan for more beer,

                                         2
dropping off Madplume’s brother and picking up McDonald. They returned to the house

and drank for several hours more, at which point Green, Sirucek and Gardipee drove back

to Ronan for more beer.      After returning to the house and drinking that 18-pack,

Gardipee, Sirucek, and McDonald left again to get another 24-pack of beer. Green stayed

behind at the house with Madplume.

¶7    According to testimony from Gardipee, when the three men returned to the house

with more beer, Sirucek remained in the jeep, passed out drunk. Gardipee testified that

the door to the house was locked when they arrived, but that Green, wrapped in a sheet,

eventually opened the door before returning to the back bedroom with Madplume.

Gardipee then sat in the living room drinking beer alone for a couple of hours until he

heard gunshots outside the house. Gardipee testified that when he stepped out of the

house, he saw McDonald standing near the jeep, holding Green’s pistol. McDonald had

shot Sirucek nine times. Gardipee testified at trial that he then went back inside the

house to tell Green and Madplume what he had seen. However, in contrast to his trial

testimony, Gardipee told police shortly after his arrest that Green had been standing

outside with McDonald, holding the gun, when Gardipee went outside. Regardless,

McDonald then asked Gardipee to help him move Sirucek’s body. The men lifted it out

of the jeep and placed it behind a trailer home behind the house. Gardipee then returned

to the house only to hear more gunshots from outside the house a few minutes later.

Gardipee testified that he then passed out drunk, waking up the next morning to find

Sirucek and Madplume’s bodies lying outside on the ground near the trailer.

                                        3
¶8    McDonald testified at Green’s trial, admitting that he shot both Sirucek and

Madplume. The issue at trial was whether Green had aided McDonald in the killings.

McDonald’s description of the events differed significantly from Gardipee’s story.

According to McDonald, about two weeks before the shootings Green had told him that

Sirucek had money and that he wanted McDonald’s help in robbing Sirucek. On the

night of the shootings, after McDonald returned from the final beer run, McDonald and

Green allegedly discussed a plan in which McDonald would kill Sirucek and Green

would kill Madplume. Green retrieved the gun from his jeep, opened the back door, and

handed the gun to McDonald.        McDonald testified that, with Green beside him,

McDonald shot Sirucek nine times as he lay passed out in the back of Green’s jeep.

Green then stabbed Sirucek several times in the throat to make sure he was dead, then

took Sirucek’s wallet and took the gun from McDonald. The State Medical Examiner

testified that the knife marks were not stab wounds and did not cause or contribute to

Sirucek’s death.

¶9    McDonald further testified that he and Green returned to the house after shooting

Sirucek, at which time Madplume started asking questions about Sirucek’s whereabouts.

McDonald and Green once again exited the house and developed a plan to lure

Madplume into the trailer behind the house to kill her, eliminating her as a potential

witness to their previous murder that evening. Green gave the gun back to McDonald

and allegedly threatened to kill McDonald if he backed out.       McDonald then shot

Madplume several times in the back of the head as she looked for Sirucek in the trailer.

                                        4
McDonald and Green returned to the house, at which time Gardipee allegedly helped the

men move Sirucek’s body from the jeep to behind the trailer. They also removed the rear

seat from Green’s jeep and left it by the trailer.

¶10    At about 6:30 a.m., Green left for Ronan to clean out his jeep while the other two

men stayed behind to sleep, agreeing to deal with the bodies later. Green drove to his

Uncle Roy’s house, then to his Aunt Betty’s. After Green gave his aunt a cursory

explanation of what happened, she took him to the Tribal Law and Order office to speak

with a tribal officer. On the way, Green admitted making the knife marks in Sirucek’s

throat, but claimed McDonald had forced him to do so while pointing a gun at his head.

Green met with Tribal Officer Ben Asencio and told him that two people had been killed

at his father’s house, and that one of them was shot in the back of Green’s jeep. Officer

Asencio contacted the Lake County Sherriff’s Office. Green retrieved the clothes he was

wearing from his Aunt Betty’s house and consented to a blood draw, search of his jeep,

and search of his father’s residence. Upon arriving at the house, police saw the two

bodies behind the trailer and found McDonald and Gardipee inside the house. Both were

arrested without incident, and both subsequently entered plea agreements with the State

prior to Green’s trial, agreeing to testify against Green. Gardipee received a ten-year

suspended sentence for the offense of tampering with the evidence. McDonald was

sentenced to the Department of Public Health and Human Services after the parties

stipulated that he was developmentally disabled and was unable to conform his behavior

to the requirements of the law. Green rejected the plea agreement offered by the State,

                                           5
and chose to go to trial on the count of tampering with the evidence and both counts of

deliberate homicide by accountability.

¶11   Green’s trial began on May 8, 2006, and continued for four days. In addition to

the testimony of McDonald and Gardipee, Michael Pierce testified that he lived with

Green and Green’s father for a period of time in 2000 and 2001, approximately four years

prior to the shootings. Pierce testified that during the time he was living with Green,

Green made threats against Sirucek and solicited Pierce to help beat up Sirucek, though

the two never did. Green also told Pierce that he would kill Sirucek someday if he had

the chance. Shortly thereafter Pierce left Montana. The District Court admitted this

testimony over defense counsel’s objection.

¶12   The jury found Green guilty of the two deliberate homicide charges and the

tampering with evidence charge. The District Court sentenced Green to two consecutive

life sentences on the two deliberate homicide convictions, and to a consecutive term of

ten years on the tampering with evidence conviction. Green’s sentences give him no

opportunity for parole.

¶13   Green appeals. Additional facts will be discussed herein as necessary.

                             STANDARDS OF REVIEW

¶14   Claims of ineffective assistance of counsel present mixed questions of law and fact

that we review de novo. State v. St. Germain, 2007 MT 28, ¶ 14, 336 Mont. 17, 153 P.3d

591. We review a district court’s ruling regarding the admission of evidence of other

crimes, wrongs, or acts for an abuse of discretion. State v. Buck, 2006 MT 81, ¶ 71, 331

                                         6
Mont. 517, 134 P.3d 53; State v. Aakre, 2002 MT 101, ¶ 8, 309 Mont. 403, 46 P.3d 648.

We also review a district court’s ruling on an objection to closing arguments for an abuse

of discretion. State v. Ford, 278 Mont. 353, 361-62, 926 P.2d 245, 250 (1996).

                                     DISCUSSION

¶15 Did Green’s trial counsel render ineffective assistance by failing to request
that the jury be instructed to view the accomplice testimony of McDonald with
distrust?

¶16   Both the Montana Constitution and the Sixth Amendment guarantee a person the

right to effective assistance of counsel. When reviewing ineffective assistance of counsel

claims, this Court applies the two-prong test set forth in Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2025 (1984). The burden is on the defendant to show that defense

counsel’s performance “fell short of the range of competence required of attorneys in

criminal cases and that his counsel’s deficient performance was prejudicial to his case.”

State v. Hendricks, 2003 MT 223, ¶ 6, 317 Mont. 177, 75 P.3d 1268; see also Whitlow v.

State, 2008 MT 140, 343 Mont. 90, 183 P.3d 861 (clarifying that the appropriate standard

for ineffective assistance claims is not one of neglect or ignorance, but whether counsel’s

conduct fell below an objective standard of reasonableness).          “There is a strong

presumption with regard to the first prong of the Strickland test that trial counsel’s

performance was based on sound trial strategy and falls within the broad range of

reasonable professional conduct.” State v. Upshaw, 2006 MT 341, ¶ 32, 335 Mont. 162,

153 P.3d 579 (citing Hendricks, ¶ 7); Whitlow, ¶ 21.




                                         7
¶17     However, before reaching the merits of an ineffective assistance claim we must

first determine whether the claim is properly before the Court on appeal. Upshaw, ¶ 33.

“The test to determine if an ineffective assistance claim is properly brought on direct

appeal is whether the record contains the answer as to ‘why’ counsel took, or failed to

take, action in providing a defense.” Upshaw, ¶ 33 (citation omitted). If the record does

not document the allegations of ineffective assistance of counsel, the claim is not

properly raised on appeal, but may be pursued in a petition for postconviction relief.

Hagen v. State, 1999 MT 8, ¶ 12, 293 Mont. 60, 973 P.2d 233. If a merely “plausible”

(but not necessarily “actual”) justification exists for counsel’s conduct, postconviction

proceedings are appropriate and the appeal should be dismissed without prejudice.

Upshaw, ¶ 35 (citation omitted). “Situations when no justification will exist for counsel’s

action are ‘relatively rare.’” State v. Herman, 2008 MT 187, ¶ 16, 343 Mont. 494, 188

P.3d 978 (quoting State v. Kougl, 2004 MT 243, ¶ 15, 323 Mont. 6, 97 P.3d 1095).

¶18     Green’s ineffective assistance of counsel claim is based on § 26-1-303(4), MCA,

which provides that “[t]he jury is to be instructed by the court on all proper occasions that

. . . the testimony of a person legally accountable for the acts of the accused ought to be

viewed with distrust,” known as an “accomplice instruction.” Green’s trial counsel did

not request an accomplice instruction based upon § 26-1-303(4), MCA, that McDonald’s

and Gardipee’s testimony should be viewed with distrust. We have explained “[w]hether

a witness for the prosecution is an accomplice is generally a question for the jury, unless

the fact is undisputed,” State v. Rose, 1998 MT 342, ¶ 13, 292 Mont. 350, 972 P.2d 321,

                                          8
(citation omitted), but here it is undisputed that Green was being prosecuted as

McDonald’s and Gardipee’s accomplice. However, we have recognized that requesting

this instruction is not required in all cases. There may be tactical reasons that defense

counsel does not want an accomplice instruction given, such as when the instruction

would be inconsistent with the defendant’s theory in the case. State v. Johnson, 257

Mont. 157, 163, 848 P.2d 496, 499 (1993).

¶19     In Johnson, the defense theory was that the defendant was not present at the

scene of the crime. We held that the accomplice instruction could have been considered

inconsistent with that defense and, thus, under those circumstances defense counsel’s

decision was tactical and did not amount to ineffective assistance. Johnson, 257 Mont. at

163, 848 P.2d at 499. In contrast, when determining to reverse in Rose, we noted that

there was “no indication that counsel made a tactical decision not to request an

instruction on accomplice testimony.” Rose, ¶ 18. The State had acknowledged in Rose

that such an instruction would have been appropriate. We observed that no plausible

explanation existed for failing to request an accomplice instruction under § 26-1-303(4),

MCA, when “the accomplice testifies that the accused came up with the idea for the

burglary, identified the items to be taken, provided the tools with which to commit the

offense, and provided transportation to the scene.” Rose, ¶ 18.

¶20     Here, one of the two alleged accomplices actually provided favorable testimony

for the defense. Although McDonald claimed Green was with him during the shootings,

Gardipee testified that Green was in the bedroom when both victims were shot.

                                         9
Considering Gardipee’s favorable testimony, Green’s counsel may have decided to

withhold a “viewed with distrust” instruction in order to prevent the casting of any

unwanted doubt upon the testimony of a witness who supported the defense theory that

Green had not actively participated in either murder.

¶21     Additionally, Green initially indicated he would rely on the affirmative defense

of compulsion.    See § 45-2-212, MCA.        Asserting a compulsion defense could be

incompatible with the notion that Green was an “accomplice” in the crimes, and could

explain why he did not request the instruction. Potentially inconsistently, however,

Green’s counsel did request an accomplice-related instruction under § 46-16-213, MCA,

requiring McDonald’s testimony to be “corroborated by other evidence that in itself . . .

tends to connect the defendant with the commission of the offense” in order to convict

Green. Once again, there is no indication why defense counsel requested only this

accomplice instruction, although Green’s counsel could have believed the jury would

view this instruction as placing an additional burden on the State to corroborate

McDonald’s testimony.

¶22     Because “plausible” justifications, discussed above, exist for counsel’s conduct,

it is not appropriate to address this issue on appeal, where the record does not flush out

the factual questions surrounding counsel’s actions. Upshaw, ¶ 35. Consequently, we

dismiss Green’s claim of ineffective assistance of counsel without prejudice to raising the

claim in postconviction relief proceedings, so the reasons for counsel’s failure to request

the accomplice instruction can be determined.

                                        10
¶23 Did the District Court err by admitting evidence of Green’s prior statement
that he would like to kill the victim?

¶24    On December 23, 2005, the State filed notice that it intended to introduce evidence

that Green stole the .22 caliber pistol used in the homicides, had solicited Pierce to beat

up Sirucek, and had stated that he would kill Sirucek someday if he had the opportunity.

Defense counsel objected to the introduction of this evidence, specifically asserting that

Green’s statements were too remote in time to be admissible.              Although Green’s

statements to Pierce were made in 2001, the State responded they were evidence of

Green’s intent and preparation, and thus were admissible pursuant to M. R. Evid. 404(b).

The District Court overruled Green’s objection, and Pierce was allowed to testify at trial.

¶25    The admissibility of other crimes, wrongs, or acts is controlled by M. R. Evid.

404(b), which provides:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It
       may, however, be admissible for other purposes, such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident.

A district court has broad discretion when determining whether other crimes evidence is

admissible under M. R. Evid. 404(b). State v. Ayers, 2003 MT 114, ¶ 72, 315 Mont. 395,

68 P.3d 768. A court’s decision to admit such evidence is guided by the Modified Just

Rule, which requires four elements be met before the evidence is allowed:

       (1) The other crimes, wrongs or acts must be similar.

       (2) The other crimes, wrongs or acts must not be remote in time.


                                         11
       (3) The evidence of other crimes, wrongs or acts is not admissible to prove the
       character of a person in order to show that he acted in conformity with such
       character; but may be admissible for other purposes, such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
       or accident.

       (4) Although relevant, evidence may be excluded if its probative value is
       substantially outweighed by the danger of unfair prejudice, confusion of the
       issues, misleading of the jury, considerations of undue delay, waste of time, or
       needless presentation of cumulative evidence.

Ayers, ¶ 73 (citing Aakre, ¶ 9); State v. Matt, 249 Mont. 136, 142, 814 P.2d 52, 56

(1991); State v. Just, 184 Mont. 262, 602 P.2d 957 (1979) (overruled on other grounds

State v. Swann, 2007 MT 126, 337 Mont. 326, 160 P.3d 511); M. R. Evid. 404(b). When

such evidence is introduced, the trial court must “explain to the jury the purpose of such

evidence and shall admonish it to weigh the evidence only for such purposes.” Ayers, ¶

77 (citation omitted).

¶26    Green argues that neither the second nor the fourth requirement of the Modified

Just Rule was satisfied here.         According to Green, the four-year gap between his

statements and the shooting requires exclusion on remoteness grounds because there is no

evidence that he engaged in a continuing course of conduct with respect to his threats.

Citing State v. Hansen, 187 Mont. 91, 608 P.2d 1083 (1980), Green argues that an event

taking place three years prior to the crime charged is too remote unless the acts engaged

in constitute a “continuing course of conduct.” Under the fourth requirement, Green

argues the evidence was “highly prejudicial and clearly violated the historical purposes

for the rule[,] which include protecting the presumption of innocence and limiting the

trial evidence to the act alleged.”
                                           12
¶27    In Hansen, we held that evidence of the defendant’s prior rape of another woman

two-and-a-half years prior should have been excluded because the circumstances of that

charge were not sufficiently similar to those of the defendant’s current rape charges and

were too remote. Hansen, 187 Mont. at 98, 608 P.2d at 1087. We also noted that,

“[a]though a three year interval between a prior act and the charged crime is close to the

limit of being too remote, other acts occurring three years prior to the crime have been

held admissible when the acts engaged in by the defendant constitutes a continuing

course of conduct.” Hansen, 187 Mont. at 97, 608 P.2d at 1087. Contrary to what Green

urges, however, this statement was not intended to create a bright-line rule requiring the

exclusion of evidence of all prior acts occurring more than three years prior to the

charged crime unless there is evidence of a continuing course of conduct. In State v.

McKnight, 250 Mont. 457, 463, 820 P.2d 1279, 1283 (1991), for example, we held that a

three-year period between incidents was not too remote because the incidents in question

were sufficiently similar. “Moreover, we consistently have declined to set arbitrary time

limits defining the remoteness factor.” State v. Brogan, 272 Mont. 156, 167, 900 P.2d

284, 291 (1995).

¶28    In the present case, while there may not be clear evidence that Green engaged in a

“continuing course of conduct” between his statements in 2001 and the homicides in

2005, there is no dispute that Green’s statement that he would like to kill Sirucek, and the

ultimate killing of Sirucek, involve the same parties. More than being merely “similar,”

the prior act was a threat to carry out the very crime against the identical victim which

                                         13
ultimately occurred. The fact that Green’s statements and the charged offenses were

separated by a three to four year period is offset by the connected nature of these events.

A threat to kill an individual is compelling, specific evidence with respect to charges for

the subsequent killing of that same individual. The two events cannot be logically

separated merely by the passage of a few years between the threat and the actual act.

¶29    Pierce and Green had a falling out soon after Green made the statements, and

Pierce moved to another state shortly thereafter. There is no evidence of further efforts

by Green to solicit help to commit an offense against Sirucek until several weeks before

the killing, when he stole a gun from his cousin and allegedly realized he could

manipulate McDonald into robbing and killing Sirucek with the gun. The fact that Green

told Pierce he wanted to kill Sirucek if he had the opportunity, and that Sirucek was

indeed killed four years later with a weapon Green had stolen only weeks before, is

simply too similar to reject as being too remote under the Modified Just Rule. Moreover,

the strength in the similarity or connectedness of these facts demonstrates that their

probative value was not “substantially outweighed” by the danger of unfair prejudice,

under the fourth factor of the Rule. We conclude that the District Court did not abuse its

discretion by admitting Green’s prior statements to Pierce under M. R. Evid. 404(b).

¶30    Green also argues that the District Court erred by failing to instruct the jury, at the

time the other crimes evidence was introduced, as to the purpose of the evidence and how

to weigh it. See Ayers, ¶ 77. Indeed, the court did not give the jury such an instruction

until after the State Medical Examiner had testified and the court had recessed for lunch.

                                          14
At that time, counsel for both parties met in chambers, at which time the State presented

the court with its proposed Rule 404(b) jury instruction. The court asked both counsel if

they objected to the reading of the instruction at that time, and neither did. While counsel

for the State suggested the court tell the jury that the instruction ordinarily would have

been read at the time the other crimes evidence was introduced, defense counsel preferred

a general statement that “this is the proposed time for me to give you this instruction . . .

.” The Court instructed the jury in accordance with defense counsel’s request. Because

defense counsel did not object to this procedure, this issue has been waived for purposes

of appeal. Section 46-20-104(2), MCA.

¶31 Did the District Court abuse its discretion by overruling Green’s objection to
the prosecutor’s offering a personal opinion on the credibility of a witness during
closing argument?

¶32    During closing argument, the prosecution discussed the fact that Gardipee had first

told the investigating officer that he had seen Green standing beside McDonald after

Sirucek was shot, but had later testified that Green was with Madplume inside the house

when the shooting occurred. The prosecutor stated:

       You heard from a number of witnesses. Only two of them were present and
       know firsthand what happened. [I’m] going to start with Glen Gardipee.
       You might wonder why I had Glen testify. Well, I’ll tell you why. There’s
       two responses. One, I had some faint hope that being under oath and being
       in a trial situation and facing some sort of pressure he might actually blurt
       out the truth. The closest he came was admitting to you that he changed his
       story in order to remove himself as a witness in this case. Well, I didn’t
       hold out much hope for that one.

Green argues on appeal that this constituted an improper comment on Gardipee’s

credibility, although Green’s trial counsel did not object at the time the statement was
                                         15
made. Rather, when the prosecutor later argued about Green’s own credibility, defense

counsel objected, stating “it sounds to me like [the prosecutor] is interjecting his own

personal opinion as to the credibility of the witnesses and that’s the exclusive province of

the jury.” The District Court overruled the objection, and Green does not appeal the

court’s decision as it applied to the prosecutor’s statements about Green. Instead, Green

contends that the objection should have been sustained with respect to the prosecutor’s

statements about Gardipee. The State responds that Green waived his right to appellate

review by failing to contemporaneously object when Gardipee’s credibility was

challenged, but that even if Green’s objection is considered timely, the prosecutor’s

statements were not improper. We agree.

¶33    During closing argument, a prosecutor may comment on “the gravity of the crime

charged, the volume of evidence, credibility of witnesses, inferences to be drawn from

various phases of evidence, and legal principles involved, to be presented in instructions

to the jury . . . .” State v. Staat, 251 Mont. 1, 10, 822 P.2d 643, 648 (1991) (quotations

omitted). While it is generally improper for the prosecution to offer personal opinions as

to the credibility of the accused or the witnesses, State v. Stringer, 271 Mont. 367, 380,

897 P.2d 1063, 1071 (1995), “it is proper for a prosecutor to comment on conflicts and

contradictions in testimony, as well as to comment on the evidence presented and suggest

to the jury inferences which may be drawn therefrom.” State v. Gladue, 1999 MT 1, ¶

15, 293 Mont. 1, 972 P.2d 827.




                                         16
¶34    Here, the prosecutor was primarily reminding the jury of the inconsistency

between Gardipee’s statement to the police after his arrest and his later testimony. In the

first instance, Gardipee told investigators that Green had been outside the house with

McDonald when Sirucek was shot. Later, Gardipee testified that Green was inside the

house with Madplume. The prosecutor was entitled to point out the inconsistencies and

to allow the jury to infer that Gardipee changed his story after having time to think about

the consequences. The prosecutor was likewise entitled to argue which of the two

versions provided by Gardipee was the truth. While that discussion lapped over into

“why” the prosecutor had called Gardipee as a witness, a prosecutor is entitled to some

latitude in his argument about a witness’s credibility. See State v. Hanson, 283 Mont.

316, 326, 940 P.2d 1166, 1172 (1997). We conclude the prosecutor’s statements do not

require reversal.

¶35    Affirmed.


                                                 /S/ JIM RICE


We concur:

/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS




                                        17
Justice James C. Nelson, dissenting.

¶36    I respectfully dissent from the Court’s decision as to Issue 1. I would reverse and

remand for a new trial on this issue and, therefore, would not address Issues 2 and 3.

¶37    It is well-settled that proving an ineffective assistance of counsel claim requires

the defendant to show (1) that counsel’s performance was deficient, i.e., that it fell below

an objective standard of reasonableness measured under prevailing professional norms

and in light of the surrounding circumstances, and (2) that counsel’s errors were so

serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable.

Whitlow v. State, 2008 MT 140, ¶¶ 10, 20, 343 Mont. 90, 183 P.3d 861 (citing Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). I first address the

performance prong of this test.

¶38    The premise of the Court’s Opinion is that there may be “plausible” justifications

for defense counsel’s failure to request the “view with distrust” instruction required by

§ 26-1-303(4), MCA, and that these supposed justifications should be fleshed out in

postconviction proceedings. Opinion, ¶¶ 17, 22. Ordinarily, I would agree with this

approach. In the present case, however, the record establishes that Green’s counsel

rendered constitutionally ineffective assistance of counsel by failing to request the “view

with distrust” instruction. Accordingly, under our caselaw, reversal is required.

¶39     Section 26-1-303(4), MCA, states that “[t]he jury is to be instructed by the court

on all proper occasions that . . . the testimony of a person legally accountable for the acts

of the accused ought to be viewed with distrust” (paragraph break omitted). On one

                                         18
hand, the Court speculates that Green’s counsel might not have requested this instruction

because it would have been inconsistent with Green’s theory in the case, Opinion, ¶ 18,

or with his asserted defense of compulsion,1 Opinion, ¶ 21, or because he did not want to

cast doubt on the testimony of a potentially favorable witness, Opinion, ¶ 20. On the

other hand, however, the Court acknowledges that counsel did, “[p]otentially

inconsistently,” request an accomplice-related instruction under § 46-16-213, MCA,

which states that a person may not be found guilty of an offense on the testimony of one

responsible or legally accountable for the same offense (here, the testimony of

McDonald) “unless the testimony is corroborated by other evidence that in itself . . . tends

to connect the defendant with the commission of the offense.” Opinion, ¶ 21.

¶40    I submit that defense counsel’s action is more than just “potentially inconsistent.”

It is illogical and even “implausible” to assume that counsel wanted the jury to be

instructed that McDonald’s testimony must be corroborated by other evidence

independently connecting Green to the crimes but did not want the jury to view

       1
         The Court states that Green’s compulsion defense “could be incompatible with
the notion that Green was an ‘accomplice’ in the crimes, and could explain why [defense
counsel] did not request the [‘view with distrust’] instruction.” Opinion, ¶ 21. I disagree.
As a matter of fact, this defense does not explain counsel’s action at all, since counsel
withdrew the compulsion defense with respect to Counts I and II (the homicide charges)
in the midst of settling jury instructions. See Reporter’s Transcript on Appeal at 12
(May 11, 2006). As a result, the court, the prosecutor, and defense counsel then engaged
in further discussion as to how the language of the compulsion instruction should be
modified to reflect that it applied only to Count III (the tampering with evidence charge).
See Transcript at 12-14. Assuming, arguendo, that defense counsel initially did not
request the “view with distrust” instruction because it would have been incompatible with
Green’s compulsion defense, that rationale was mooted once counsel withdrew this
defense to Counts I and II. Yet, counsel did not then request the “view with distrust”
instruction, which he should have done, as explained below.
                                         19
McDonald’s testimony with distrust in the first place. Rather than having some tactical

or even conscious purpose in mind, as the Court surmises, it is more likely that Green’s

counsel was simply unaware of the requirement in § 26-1-303(4), MCA, and our caselaw,

discussed below, that the “view with distrust” instruction must be given where the State’s

case is grounded on accomplice testimony.2

¶41    The District Court’s instructions bear this out. First, the jurors were told in

Instruction No. 4 that they were “the sole judges of the credibility, that is the

believability, of all the witnesses testifying in this case, and of the weight, that is the

importance, to be given their testimony.” Furthermore, the jurors were told that they

were “not bound to decide any fact based upon the testimony of a larger number of

witnesses whose testimony does not convince you against the testimony of a smaller

number of witnesses (or against a presumption), or other evidence which does convince

you.” Indeed, the jurors were told that “[t]he evidence presented by one witness whom

you believe is sufficient for the proof of any fact in this case.” Thus, under Instruction

No. 4, if the jurors believed McDonald, his testimony was sufficient to establish Green’s

guilt of deliberate homicide by accountability.

¶42    Yet, under Instruction No. 17, the jurors were told that

       [a] person may not be found guilty of an offense on the testimony of one
       responsible or legally accountable for the same offense unless the testimony
       is corroborated by other evidence that in itself and without the aid of the

       2
        The placement of the “view with distrust” instruction in Title 26, as opposed to
Title 46, of the MCA may be problematic for some inexperienced criminal defense
counsel. That, however, does not absolve counsel from his or her obligation to research
and request jury instructions appropriate to the defendant’s theory and defense.
                                         20
       testimony of the one responsible or legally accountable for the same
       offense tends to connect the defendant with the commission of the offense.

Thus, under Instruction No. 17, McDonald’s testimony was insufficient to establish

Green’s guilt. It had to be corroborated by other evidence tending to connect Green with

the commission of the offense. In short, without the “view with distrust” instruction, the

jurors were left with apparently conflicting instructions on whether McDonald’s

testimony itself was sufficient to prove a fact at issue.

¶43    In this connection, the corroboration instruction presumes that there was an

accomplice, while the “view with distrust” instruction requires the jury to view that

person’s testimony with distrust. It is logical that a jury would consider the accomplice’s

testimony and view it with distrust before even reaching the requirement of

corroboration. That is why the accomplice’s testimony must be corroborated—because it

is to be viewed with distrust by the jury in the first instance and because accomplice

testimony (especially where, as here, codefendants cut deals with the State) is simply not

reliable. If the jurors, as they are required, first view the accomplice’s testimony with

distrust and then find that corroborative evidence is lacking or weak, then the State may

well be unable to convince the jury of the accused’s guilt beyond a reasonable doubt. If

the State’s case hangs on the credibility of the accomplice, then the State may be unable

to convict if the jurors do not find the accomplice’s testimony credible.

¶44    Here, McDonald was an accomplice as a matter of law. McDonald and Green

were both charged in connection with the Sirucek and Madplume homicides, and we have

held that the State’s charging one person for the same crime for which the defendant is
                                          21
tried constitutes an acknowledgement by the State that the person is an accomplice. State

v. Johnson, 276 Mont. 447, 451-52, 918 P.2d 293, 295-96 (1996). Indeed, Green was

charged as McDonald’s accomplice. McDonald admitted killing Sirucek and Madplume

and testified against Green as part of his plea agreement with the State. The State’s case

hinged to a great extent on McDonald’s testimony.

¶45   In State v. Rose, 1998 MT 342, 292 Mont. 350, 972 P.2d 321, on facts similar to

those here, we observed that there was “no indication that counsel made a tactical

decision not to request an instruction on accomplice testimony.”        Rose, ¶ 18.   We

concluded that defense counsel had nothing to lose by asking for this instruction, and we

reversed, holding that there was no reasonable tactical or strategic reason for failing to

provide an instruction on the jury’s consideration of an accomplice’s testimony when the

accomplice testifies that the accused came up with the idea for the crime and provided the

tools with which to commit the offense. Rose, ¶ 18.

¶46   Likewise, in the case at bar, McDonald testified that Green came up with the idea

for killing Sirucek and Madplume and that Green then provided McDonald with the

means for doing so (the gun Green stole from his cousin). Gardipee’s testimony that

Green was in the house at the time of the shootings was of dubious credibility, given his

admissions on the witness stand that he had not been honest with the police and that he

had given a conflicting account of the incident 12 hours after the shootings. Thus,

McDonald’s credibility was critical to the State’s case, and Green’s defense hinged to a

great extent on the jury not believing McDonald. Yet, Green’s counsel did not request

                                        22
the one instruction that would have required the jury to view McDonald’s testimony with

distrust. The jury “should have been specifically instructed that it should view the

testimony of [McDonald], an accomplice, with distrust.” Rose, ¶ 19.

¶47   In State v. Kougl, 2004 MT 243, 323 Mont. 6, 97 P.3d 1095, we followed our

decision in Rose and found deficient performance by defense counsel because counsel

failed to request the “view with distrust” instruction. Kougl, ¶ 21. Kougl had been

charged with felony operation of an unlawful clandestine laboratory. As in the instant

case, Kougl’s accomplices testified against him at trial as part of their plea agreements

with the State. Kougl, ¶ 7. In closing argument, defense counsel pointed out to the jury

that the testimony of the accomplices should be viewed with suspicion because of their

criminal conduct and the deals two of them had cut with the State.           Kougl, ¶ 9.

Notwithstanding, defense counsel did not ask for the “view with distrust” instruction

under § 26-1-303(4), MCA. Kougl, ¶ 9. Consistently, defense counsel also did not

request the corroboration instruction pursuant to § 46-16-213, MCA. Kougl, ¶ 9.

¶48   On appeal, Kougl raised an ineffective assistance of counsel claim, which we held

was properly before us on direct appeal, as opposed to requiring him to raise it in a

postconviction proceeding.   Kougl, ¶ 22. We stated that “[g]enerally, in addressing

ineffective assistance of counsel claims, we ask ‘why’ counsel did or did not perform as

alleged and then seek to answer the question by reference to the record.” Kougl, ¶ 14.

We then explained that “[s]ometimes, however, it is unnecessary to ask ‘why’ in the first

instance.” Kougl, ¶ 15. An example of this “is when counsel is faced with an obligatory,

                                       23
and therefore non-tactical, action. Then the question is not ‘why’ but ‘whether’ counsel

acted, and if so, if counsel acted adequately.” Kougl, ¶ 15 (citation omitted). Another

example, which is present here, “is the relatively rare situation where there is ‘no

plausible justification’ for what defense counsel did.” Kougl, ¶ 15. We stated that

“[w]hether the reasons for defense counsel’s actions are found in the record or not is

irrelevant. What matters is that there could not be any legitimate reason for what counsel

did.” Kougl, ¶ 15. We cited Rose as falling within this latter example, observing that

defense counsel in Rose “had nothing to lose in asking for the [‘view with distrust’]

instruction, and if counsel had asked for the instruction the trial court would have been

obligated to grant the request.” Kougl, ¶ 17.

¶49    As with Rose, we observed that there was no reason for Kougl’s counsel not to ask

for the “view with distrust” instruction, given that the parties had agreed that the

“accomplices” were, in fact, accomplices and given that the State’s case against Kougl

was based largely on the credibility of these witnesses. Kougl, ¶ 20. Indeed, we noted

that counsel had “nothing to lose” in asking for this instruction, while Kougl, “however,

risked losing his liberty.” Kougl, ¶ 21. We determined that “[b]y failing to ask the court

to tell the jurors that the law demands they view the accomplices’ testimony with distrust,

trial counsel failed to use the law to strike at the heart of the State’s case.” Kougl, ¶ 20.

Thus, we concluded that we could rule on the merits of Kougl’s ineffective assistance of

counsel claim without asking “why” counsel had not requested the instruction. Kougl,




                                         24
¶ 22. It was enough that she had not, and we held that her performance was deficient.

Kougl, ¶ 24.

¶50    These precedents are controlling here. In Rose, we held that defense counsel

rendered ineffective assistance of counsel by failing to request the “view with distrust”

instruction. Rather than referring the case to a postconviction proceeding, we held on

direct appeal that Rose’s defense was prejudiced. Rose, ¶¶ 19-20. Similarly, in Kougl,

we held that Kougl’s ineffective assistance of counsel claim should be decided on direct

appeal and that defense counsel rendered ineffective assistance of counsel by failing to

request the “view with distrust” instruction. Kougl, ¶¶ 22, 24, 27.

¶51    Likewise here, by failing to request the “view with distrust” instruction required

by § 26-1-303(4), MCA, defense counsel’s conduct fell below an objective standard of

reasonableness measured under the prevailing professional norms established by our

caselaw. Whitlow, ¶ 20. Counsel did not request the instruction although there was no

plausible or legitimate justification for this course of action and although he had nothing

to lose in asking the District Court to give it. McDonald was an accomplice as a matter

of law; he testified against Green; and the State’s case against Green was based almost

entirely, if not exclusively, on McDonald’s credibility as a witness. Therefore, as we

determined in Rose and Kougl, Green’s counsel made errors so serious that he was not

functioning as the “counsel” guaranteed Green by the Sixth and Fourteenth Amendments

to the United States Constitution and Article II, Section 24 of the Montana Constitution.

Whitlow, ¶ 10.

                                         25
¶52    Turning, then, to the prejudice prong of the analysis, we stated in Rose that “[t]o

support the prejudice element of a claim of ineffective assistance of counsel, a defendant

need not demonstrate that he would have been found not guilty had his counsel taken

different action”; rather, he “must establish only that there is a reasonable probability that

but for counsel’s unprofessional errors the result of the proceeding would have been

different.” Rose, ¶ 19 (citing Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). In

considering whether counsel’s failure to request the “view with distrust” instruction

prejudiced Rose’s defense, we observed that “the distinction between what the jury was

told and what it should have been told is significant.” Rose, ¶ 19. The jury had been

instructed “only in general terms relative to the weight to be given the testimony of

witnesses,” though it “should have been specifically instructed that it should view the

testimony of [the accomplice] with distrust.” Rose, ¶ 19. We further observed that a

“view with distrust” instruction “would have gone to the heart of the defense that [the

accomplice] was not telling the truth when he said Rose was involved with him in the

burglary.” Rose, ¶ 19. Having made these observations, we held that counsel’s failure to

request the instruction was prejudicial to Rose’s defense. Rose, ¶ 20.

¶53    Similarly, in Kougl, we determined that Kougl “established prejudice because the

[‘view with distrust’ and corroboration] instructions would have conveyed to the jurors

that the law commanded them to view the State’s crucial evidence with distrust such that

there is a reasonable probability they would have arrived at a different outcome.” Kougl,

¶ 26. We noted that it is particularly important that the trial judge instruct the jurors in

                                          26
this regard, as opposed to the jurors hearing the law through argument by counsel. We

explained that “what the judge tells the jury necessarily carries the force of law, while

what the adversarial counsel tells the jury does not.” Kougl, ¶ 26. Moreover, written jury

instructions may be “read, reread, and reflect[ed] on while in deliberation.” Kougl, ¶ 26.

¶54    In the present case, the jury was instructed in general terms relative to the weight

to be given the testimony of witnesses and was told that “[t]he evidence presented by one

witness whom you believe is sufficient for the proof of any fact in this case.” The jury

was also told, however, that McDonald’s testimony had to be corroborated in order to

convict Green on the basis of that testimony, without any indication as to why such

corroboration was necessary. The missing link was that McDonald’s testimony had to be

“viewed with distrust” from the outset, which the jury should have been told. Section

26-1-303(4), MCA. A “view with distrust” instruction would have gone to the heart of

the defense that McDonald was not telling the truth when he said that Green was

involved with him in the shootings. Rose, ¶ 19. A “view with distrust” instruction would

have conveyed to the jurors that the law commanded them to view the State’s crucial

evidence with distrust. Kougl, ¶ 26. There is a reasonable probability, therefore, that but

for counsel’s unprofessional errors, the result of Green’s trial would have been different.

Rose, ¶ 19.

¶55    As we held in Rose and Kougl, therefore, I conclude that defense counsel’s failure

to request the “view with distrust” instruction prejudiced Green’s defense and draws into

question the reliability of the result of his trial. There are no substantive differences

                                        27
between the case at bar and the cases we decided in Rose and in Kougl. We should

follow our precedent in this case.

¶56    Accordingly, I would reverse on Issue 1 and remand for a new trial. I respectfully

dissent from our failure to do so.


                                                 /S/ JAMES C. NELSON


Justice Patricia O. Cotter joins the Dissent of Justice James C. Nelson.


                                                 /S/ PATRICIA COTTER




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