                                                                                               06/30/2020


                                          DA 17-0612
                                                                                           Case Number: DA 17-0612

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2020 MT 170



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

NEVADA B. ST. MARKS,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Twelfth Judicial District,
                       In and For the County of Hill, Cause No. DC 16-121
                       Honorable Daniel A. Boucher, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Chad Wright, Appellate Defender, Koan Mercer, Assistant Appellate
                       Defender, Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Roy Brown, Assistant
                       Attorney General, Helena, Montana

                       Karen Alley, Hill County Attorney, Havre, Montana



                                                   Submitted on Briefs: April 8, 2020

                                                              Decided: June 30, 2020


Filed:

                                 cir-641.—if
                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1      Nevada B. St. Marks appeals his conviction of attempted deliberate homicide by a

jury in the Twelfth Judicial District Court, Hill County. We affirm, and restate the issues

as follows:

     1. Does the District Court’s “specific purpose” jury instruction warrant review under
        either the doctrine of plain error or ineffective assistance of counsel?

     2. Does the prosecutor’s conduct warrant plain error review?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶2      On September 18, 2016, St. Marks stabbed his friend, Cordell Wilson (Wilson), in

the chest multiple times with a large kitchen knife. Wilson and St. Marks grew up together

in Havre, and were childhood friends. A few days before the incident, Wilson contacted

St. Marks to tell him he would be in town for the weekend, and St. Marks and Wilson

agreed to meet so Wilson could work on St. Marks’ tattoos.

¶3      St. Marks spent the day of September 17 drinking and driving around with another

friend, Dustin Welch (Welch). Toward evening, Welch invited other friends, including a

fifteen-year-old girl, J.G., to join them at a local fishing hole to continue drinking. After

meeting at the fishing hole, the group went to St. Marks’ trailer to continue their party. On

more than one occasion during the party, St. Marks brought up gang affiliation and became

very angry, arguing with others about whether they were “bloods” or “crips.” During these

conversations, St. Marks repeatedly brought out a large kitchen knife, and at one point told

J.G. he didn’t care what he did that night, because he was moving to Great Falls in the


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morning. After St. Marks displayed the knife the third time, J.G. became concerned and

hid the knife under a stack of dishes in St. Marks’ sink.

¶4     J.G. testified that, shortly thereafter, she “blacked out” due to the amount of alcohol

she had consumed. Welch left the party to meet up with Wilson, and the two decided to

go back to the trailer. Upon their return, they walked in on what they believed was St.

Marks engaging in intercourse with J.G. J.G. provided a similar account, stating that when

she “came to,” Wilson and Welch were coming in the door, and St. Marks was separating

from her as if they had just had sex. Wilson and Welch immediately left the trailer to give

St. Marks and J.G. some time, and when they returned again, St. Marks and J.G. were

sitting on different sides of the room. J.G. became visibly upset, and Welch took her to a

back room to help her calm down. He then went outside to smoke.

¶5     At this point, the accounts of what happened between Wilson and St. Marks

diverged. Wilson testified he told St. Marks he did not believe it was right that St. Marks

had sex with J.G. He reminded St. Marks that St. Marks had a girlfriend, a son, and a

house. Wilson said St. Marks then went quiet, and that there was a lot of tension between

the two, so Wilson decided to leave. Wilson testified that St. Marks asked him to have one

last shot of whiskey before he left, which Wilson agreed to do. Wilson tried to shake hands

with St. Marks to make amends, but St. Marks refused. The shots were poured, and when

Wilson lifted his arm up to drink the shot, St. Marks stabbed him in the chest with the

kitchen knife. Upon realizing he had been stabbed, Wilson head butted St. Marks and

began calling Welch for help. St. Marks then stabbed Wilson in the chest two more times.

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¶6     Welch testified that, while he was out smoking, he could see into the trailer through

a window. He thought St. Marks and Wilson were goofing around and wrestling before he

heard Wilson scream for help. Upon entering the trailer, Welch saw Wilson holding his

chest and saying St. Marks had stabbed him. Welch told St. Marks to leave, ordered Wilson

to lay down, and called 911.

¶7     J.G., who was still in the back room, testified that she heard yelling and believed

there was fighting in the living room. When she came out, she saw Wilson on the porch,

bleeding, and Welch calling 911. Welch yelled at her to leave, and she left the trailer.

¶8     St. Marks offered a completely different version of the incident. He said after J.G.

and Welch left, he and Wilson got into an argument about roofing. Wilson told St. Marks

“he didn’t know shit” about roofing, and that St. Marks’ grandfather, who had taught

St. Marks how to roof, also “did not know shit.” St. Marks told Wilson to “watch his

mouth,” and that if Wilson “didn’t stop slapping [his] gums, we will get down to business

and squabble.” St. Marks testified at that point a fight broke out between the two men, and

Wilson, who was much larger than St. Marks, was winning. St. Marks said he told Wilson

“I quit,” and attempted to walk into the kitchen, at which time Wilson “smacked” St. Marks

in the back of the head, causing St. Marks to “see stars.” St. Marks testified:

       I knew I would have to defend myself in a manner that I did not want to. As
       I was looking down at the sink, trying to gain my composure. I saw a knife
       blade. I saw it as a barrier between us . . . . [Wilson] continued to lunge at
       me. I, out of instinct, reached up and popped him. When he popped back, it
       did not even seem like it affected him. . . . He just kept coming. I thrust the
       knife a couple times.


                                             4
St. Marks testified that the knife broke and he ran outside, told Welch what had happened,

and then left.

¶9     EMTs arrived and Wilson was transported to the hospital. He had lost a significant

amount of blood, his lung was collapsed, and his injuries required surgery. He was then

transferred to the Intensive Care Unit, where he remained for several days before being

released. After a few hours of looking for St. Marks, police found him walking down the

side of a road, covered in blood, and with no injuries to his person. The State charged

St. Marks with attempted deliberate homicide, or in the alternative, assault with a weapon.

¶10    At trial, Wilson, Welch, J.G., and St. Marks all testified to their version of the events

that night. St. Marks maintained he stabbed Wilson in self-defense, and his counsel stated

several times to the jury that the case was about self-defense. In addition to the testimony

of Wilson, Welch, and J.G., the State called Detective Brian Cassidy, of the Havre Police

Department, who had investigated the scene and interviewed St. Marks. During the initial

interview, which was recorded and played for the jury, St. Marks told Detective Cassidy

that he did not remember what happened, and Detective Cassidy testified St. Marks

changed his story several times.       Defense counsel later asked St. Marks about this

interview:

       Q. Why is it that on the interview with Detective Cassidy, you have no
       memory what is going on you say repeatedly but here today you tell the jury
       what happened?
       A. Part was panic because of the actions I did. With the assault, I did not
       want [Wilson] in trouble. I was more afraid for him than myself. I wanted
       to take the blame so my friend could heal and not worry about being
       prosecuted by the law.

                                               5
On cross examination of St. Marks, the State asked about this statement:

       Q. So did I understand from your testimony that you said at the time you
       were talking to Detective Cassidy, you were attempting to take the blame to
       keep [Wilson] from getting into trouble; is that your testimony?
       A. That’s correct.
       Q. Okay. So during your interview with Detective Cassidy, how many times
       do you think you lied?
       A. I would say about a little over half of the interview.

The State then called Detective Cassidy to return to the stand, during which the following

interaction took place:

       Q. Did you consider the possibility during the interview with the defendant
       that he was lying to cover for [Wilson]?
       A. No.
       Q. Why not?
       A. I believed he was lying to cover for himself.

Defense counsel did not object to this line of questioning.

¶11    In his closing statement, defense counsel maintained that St. Marks’ use of force

was justifiable, and further, that there were problems with the State’s version of what had

occurred. The prosecutor emphasized that Wilson’s version was more consistent with the

other witness testimony, and that St. Marks could not have stabbed someone multiple times

without the intent to kill. Additionally, the prosecutor stated, “[Welch] got up and told the

truth. He did not cover for the defendant or bolster. He just told you what he saw.”

St. Marks’ counsel did not object to this comment.

¶12    After both parties rested, the District Court issued jury instructions, including

Instruction #10 based upon § 45-2-201(2), MCA, regarding purposely or knowingly

causing the result of death:

                                             6
       If purposely or knowingly causing death was not within the contemplation
       or purpose of the Defendant, either element can nevertheless be established
       if the result involves the same kind of harm or injury as contemplated but the
       precise harm or injury was different or occurred in a different way, unless
       the actual result is too remote or accidental to have a bearing on the
       Defendant’s liability or the gravity of the offense.

St. Marks’ counsel did not object to the instruction.

¶13    During deliberation, the jury sent a question to the court that requested clarification

on Instruction #10. The Court asked the parties if they wanted to clarify the instruction, to

which St. Marks’ counsel replied “no, we can’t.” When the District Court asked St. Marks’

counsel for a suggested answer to the jury, he replied, “[t]he answer is we can’t clarify that.

They’ll just have to – we can’t clarify it for them.”

¶14    The jury convicted St. Marks of attempted deliberate homicide. St. Marks appeals.

                                STANDARD OF REVIEW

¶15    This Court generally does not address issues raised for the first time on appeal.

However, when a defendant’s fundamental rights are invoked, we may choose to invoke

the common law plain error doctrine if failing to review the claimed error may result in a

manifest miscarriage of justice, may leave unsettled the question of fundamental fairness

of the trial or proceedings, or may compromise the integrity of the judicial process. State

v. Favel, 2015 MT 336, ¶ 13, 381 Mont. 472, 362 P.3d 1126 (citing State v. Taylor, 2010

MT 94, ¶ 12, 356 Mont. 167, 231 P.3d 79). Ineffective assistance of counsel (IAC) claims

are mixed questions of law and fact which this Court reviews de novo. Whitlow v. State,

2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861 (citation omitted).


                                              7
                                       DISCUSSION

¶16    1. Does the District Court’s “specific purpose” jury instruction warrant review by
       this Court under either the doctrine of plain error or ineffective assistance of
       counsel?

¶17    St. Marks argues that Instruction #10 resulted in plain error because it improperly

instructed the jury regarding the elements of attempted deliberate homicide, noting that the

element of “attempt” is defined as when “with the purpose to commit a specific offense,

[a] person does any act toward the commission of the offense.” Section 45-4-103(1), MCA.

Section 45-5-102(1)(a), MCA, provides that “[a] person commits the offense of deliberate

homicide if . . . the person purposely or knowingly causes the death of another human

being.” On this same basis, St. Marks also argues his trial counsel was ineffective for

failing to object to the instruction. In response, the State does not defend the instruction,

but argues the issue does not warrant exercise of plain error review because St. Marks has

not made the threshold showing that failing to review the claimed error would result in a

manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of

the trial, or compromise the integrity of the judicial process. The State likewise argues that

trial counsel’s failure to object to the instruction did not prejudice St. Marks for purposes

of his IAC claim, because it did not affect the outcome of the trial.

¶18    To properly preserve an issue for appeal, a defendant must make a timely objection.

Favel, ¶ 17. However, unpreserved issues may be reviewed by this Court under the plain

error doctrine. Favel, ¶ 23. Before this court will find plain error, the appealing party

must: “(1) show that the claimed error implicates a fundamental right and (2) ‘firmly

                                              8
convince’ this Court that failure to review the claimed error would result in a manifest

miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial

or proceedings, or compromise the integrity of the judicial process.” State v. Daniels, 2011

MT 278, ¶ 32, 362 Mont. 426, 265 P.3d 623 (internal quotations and citations omitted).

This Court invokes the plain error doctrine “sparingly, on a case-by-case basis.” Daniels,

¶ 32 (citing State v. Lindberg, 2008 MT 389, ¶ 34, 347 Mont. 76, 196 P.3d 1252).

¶19    We note, first, that the instruction appears to be inappropriate to the charge in this

case. As charged, to prove attempted deliberate homicide, the State was required to prove

the Defendant took “any act toward” the commission of deliberate homicide, which is

purposely or knowingly causing another’s death.            Section 45-5-102(1)(a), MCA.

Instruction #10, based upon § 45-2-201(2), MCA, which St. Marks labels a “specific

purpose” instruction, is actually about the causation of an alternative result; that is, if

purposely or knowingly causing a particular result is required by a charge, but that result

was not intended by the defendant, the required element can nonetheless be established by

proof of another, similar, result that the defendant did intend to cause. Section 45-2-

201(2)(b), MCA. However, here, causation of a particular result was never contested.

St. Marks conceded that he had purposely caused injuries to Wilson sufficient to cause his

death. The question here was whether he was justified in doing so in self-defense. The

jury alertly asked for clarification about Instruction #10, because it didn’t apply to the

charge. Nor do we believe the instruction undermined the fundamental fairness of the

proceeding, given the way the case was tried.

                                             9
¶20      “A defendant who relies upon the defense of justifiable use of force concedes that

he acted purposely or knowingly.” State v. Nick, 2009 MT 174, ¶ 13, 350 Mont. 533, 208

P.3d 864 (citing State v. Houle, 1998 MT 235, ¶ 15, 291 Mont. 95, 966 P.2d 147; State v.

Sunday, 187 Mont. 292, 306, 609 P.2d 1188, 1197 (1980); People v. Joyner, 278 N.E.2d

756, 760 (Ill. 1972)). In State v. Ilk, 2018 MT 186, 392 Mont. 201, 422 P.3d 1219, Ilk was

charged with two counts of attempted deliberate homicide after he fired gunshots at his

ex-girlfriend and her friend. Ilk, ¶¶ 4, 13. Ilk claimed he acted with justifiable use of force,

because one of the victims had shot at him first. Ilk, ¶ 6. At trial, the prosecution presented

evidence that Ilk was the only aggressor in the altercation. Ilk, ¶ 4. On appeal, Ilk argued

his substantial rights had been affected, warranting reversal of his conviction, because the

District Court erred by offering conduct-based instructions of knowingly and purposely,

instead of the proper result-based instructions. Ilk, ¶¶ 10, 17. We disagreed, holding “the

error in giving the conduct-based mental state instructions would have had, at best, a

tangential effect on the jury’s consideration,” because, as we likewise held in Nick, Ilk had

admitted to acting purposely and knowingly by relying on the defense of justifiable use of

force. Ilk, ¶ 25.1


1
  Ilk was also premised upon our decisions in State v. Rothacher, 272 Mont. 303, 901 P.2d 82
(1995) and State v. Patton, 280 Mont. 278, 930 P.2d 635 (1996), in which we addressed erroneous
conduct-based mental state instructions given in deliberate homicide trials, and concluded the
errors had been harmless. We explained:

           . . . [T]his case is similar to Rothacher and Patton, because there was no evidence
           that Ilk, while intending his conduct of shooting, did not intend any harm to result
           from that conduct.

      Ilk, ¶ 24.
                                                 10
¶21    We reach the same conclusion here. Although St. Marks seeks to distinguish Nick

and Ilk by arguing that he also asserted alternative defenses to justifiable use of force, a

review of the record reveals otherwise. St. Marks’ trial efforts, including evidence and

argument, were directed virtually entirely to his defense of justifiable use of force. In his

opening statement, St. Marks’ counsel stated, “[t]his is a case of self defense. . . . Ladies

and Gentlemen, this is a case of self defense and we would ask you to return a verdict of

not guilty.” The defense called one witness, St. Marks, who testified only about his version

of the incident, and explained that he had stabbed Wilson in self-defense. St. Marks offered

no other theory for finding him not guilty of the charge. Further, while the prosecution

mentioned the instructions, including Instruction #10, it did not make an argument for guilt

based on its application, but contended St. Marks had intended to kill Wilson under

application of the correct mental state instructions, stating in closing: “you have been given

two definitions. One for purposely and one for knowingly. . . . In this case, the evidence

in front of you allows you to infer that there was noting [sic] accidental or incidental about

his stabbing [Wilson].” (Emphasis added.) Again, there was no conflict between the

parties about the result caused by St. Marks, and the prosecution did not seek to prove that

St. Marks had intended to cause any other result. Despite the incorrect instruction, the case

was tried as a straight-forward determination of St. Marks’ intentions in causing the injuries

to Wilson, and the necessity of his use of force. As the prosecutor argued in closing:

       I have to prove to you that the defendant performed an act toward the
       commission of the acts [sic] of deliberate homicide. I would submit to you
       that the act of stabbing Cordell Wilson in the chest three times with a nine
       inch blade, satisfies that element. He did so with the purpose to commit the
                                             11
       offense of deliberate homicide. Again, what else are you planning if you are
       lunging a knife into someone’s chest three times? Maybe the first time you
       can say it went in and he did not realize how deep it was going to go in. But
       the second time? The third time?

(Emphasis added.)

¶22    As in Ilk and Nick, St. Marks’ reliance upon the defense of justifiable use of force

conceded that he acted with purpose or knowledge, and the jury clearly rejected his

assertion of self-defense. This does not mean that a justifiable use of force defense

necessarily precludes in every case, an argument that the requisite intent was not present

when the crime charged is an inchoate offense, such as attempt. Section 45-4-103(1),

MCA, provides: “A person commits the offense of attempt when, with the purpose to

commit a specific offense, the person does any act toward the commission of the offense.”

(Emphasis added.)     Thus, an individual could concede that he acted purposely and

knowingly, while still contending that his purpose was not to attempt the commission of a

“specific offense,” such as homicide.      However, the record in this case, where the

prosecution did not seek to prove that St. Marks had intended to cause any result other than

Wilson’s death, does not lend itself to such an interpretation. Given the trial record, we

are not “firmly convinced” that failure to review the inapplicable instruction would result

in a manifest miscarriage of justice, leave unsettled the question of fundamental fairness of

the trial, or compromise the integrity of the judicial process. Daniels, ¶ 32.

¶23    We determine whether counsel was ineffective using the two-part test articulated by

the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052 (1984), under which the defendant must prove “(1) that counsel’s performance was
                                             12
deficient, and (2) that counsel’s deficient performance prejudiced the defense.” Whitlow,

¶ 10 (citing State v. Racz, 2007 MT 244, ¶ 22, 339 Mont. 218, 168 P.3d 685). If the

defendant cannot satisfy either one of these elements, his or her ineffective assistance claim

will be denied. Whitlow, ¶ 11. Under the second prong, a defendant must “demonstrate

prejudice by showing a reasonable probability that the result of the proceeding would have

been different but for counsel’s deficient performance.” State v. Walter, 2018 MT 292,

¶ 14, 393 Mont. 390, 431 P.3d 22 (citations omitted).

¶24    We recognize the inquiries are not the same, but for reasons we have discussed

above in concluding that the exercise of plain error review is not necessary to preserve the

fundamental fairness of the trial proceeding, we likewise conclude that the claimed error

by trial counsel in failing to object to Instruction #10 did not prejudice St. Marks by raising

a reasonable probability that the trial result would have been different but for counsel’s

performance.    The instruction did not derail what was a clearly directed trial about

St. Marks’ intentions and his assertion that his actions were justified by self-defense.

¶25    Does the prosecutor’s conduct warrant plain error review?

¶26    St. Marks also argues the prosecutor’s conduct of commenting on St. Marks’

credibility in closing, and of asking Detective Cassidy about his perception of St. Marks’

intention during his interview, warrant plain error review by this Court. The State responds

that the prosecutor’s actions were not improper, and, in any event, they do not warrant plain

error review.




                                              13
¶27    St. Marks relies upon State v. Hayden, 2008 MT 274, 345 Mont. 252, 190 P.3d 1091,

in which we concluded plain error review of a prosecutor’s misconduct was necessary.

Hayden, ¶ 30. There, the prosecutor had extensively questioned a detective about the

credibility of other witnesses, including asking him to opine on whether he thought the

witnesses’ earlier or in-court statements were more “believable.”          Hayden, ¶ 12.

Additionally, the prosecutor argued in his closing argument that the witnesses were

“believable” and that the jury could “rely on” their testimony. Hayden, ¶ 14.

¶28    The actions of the prosecutor in Hayden were far more egregious than the claimed

errors by the prosecutor in this case, and we conclude that the prosecutor’s actions here do

not justify plain error review. Unlike Hayden, the prosecutor’s questioning of Detective

Cassidy and her comments in closing were very limited in scope and, in the case of the

questioning of Detective Cassidy, were made in response to St. Marks’ testimony that he

had been lying during his statement to Cassidy. Likewise, the prosecutor’s statement in

closing that Welch had “told the truth” was, however inappropriate, a passing comment

that did not rise to the significant errors made by the prosecutor in Hayden. Finally, we

conclude St. Marks’ conviction is not reversible upon cumulative error.

¶29    Affirmed.

                                                 /S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ DIRK M. SANDEFUR
/S/ INGRID GUSTAFSON
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER
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