Submitted on Briefs: June 14, 2017
From District Court of the Twenty-First Judicial District, In
and For the County of Ravalli, Cause No. DV 14-02 Honorable
Jeffrey H. Langton, Presiding Judge
Appellant: Joseph P. Howard, Joseph P. Howard, P.C., Great
Appellee: Timothy C. Fox, Montana Attorney General, Ryan W.
Aikin, Assistant Attorney General, Helena, Montana William E.
Fulbright, Ravalli County Attorney, Hamilton, Montana.
Andrew David Golie (Golie) appeals the denial of his petition
for postconviction relief (PCR), which claimed ineffective
assistance by his trial counsel. We affirm, and address the
1. Did counsel render ineffective assistance by not
objecting to the mental-state jury instruction?
2. Did counsel render ineffective assistance by not
objecting to evidence regarding Golie's
"brothers" or "Modern Outlaw"?
3. Did counsel render ineffective assistance by revealing
that Golie was on probation?
4. Did counsel render ineffective assistance by not
objecting to the admission of testimony that vouched for the
testimony of others?
AND PROCEDURAL BACKGROUND
In January 2011, a Hamilton, Montana, pawn shop was
burglarized. Among the items taken was a unique necklace with
a broken clasp. Law enforcement investigated, but identified
no suspects. In March 2011, Josh Edmondson (Edmondson)
attempted to pawn the necklace with the broken clasp at the
same pawn shop. The shop owner recognized the necklace and
confronted Edmondson, who said that a friend named Andrew had
given the necklace to him, but claimed to not know
Andrew's last name. Edmondson telephoned Golie, who
acknowledged the necklace was stolen and told Edmondson he
was stupid for having tried to pawn it.
The following day, Golie and a friend, Wilkins, appeared at
Edmondson's home around 10:30 p.m. Golie instructed
Edmondson to confess to authorities that Edmondson had stolen
the necklace, and told Edmondson that he knew where
Edmondson's child slept, his dog slept, and where he
lived. Fearing for his family's safety, Edmondson
contacted law enforcement.
Golie was charged with felony intimidation, §
45-5-203(1)(a), MCA, and felony tampering with witnesses and
informants, § 45-7-206(1), MCA. Sasha Brownlee
(Brownlee) represented Golie throughout the trial
proceedings, in which the jury acquitted Golie of
intimidation, but convicted him on the witness tampering
charge. Golie appealed, arguing to this Court that Brownlee
was ineffective for failing to object to a jury instruction.
Reasoning that the claim could not be reviewed on direct
appeal, we affirmed Golie's conviction without prejudice
to his pursuit of postconviction relief. State v.
Golie, 2013 MT 321N, No. DA 12-0454, 2013 Mont. LEXIS
Golie filed a PCR petition in January 2014, stating eight
claims of ineffective assistance of counsel (IAC) by
Brownlee. In a 75-page order, the District Court extensively
analyzed and denied all claims. Golie appeals four of those
claims. Additional facts as necessary are cited herein.
We review a district court's denial of postconviction
relief to determine if the court's findings of fact are
clearly erroneous, and if its conclusions of law are correct.
Lacey v. State, 2017 MT 18, ¶ 13, 386 Mont.
204, 389 P.3d 233 (citing Kenfield v. State, 2016 MT
197, ¶ 7, 384 Mont. 322, 377 P.3d 1207). We review de
novo the mixed questions of law and fact presented by claims
of ineffective assistance of counsel. Whitlow v.
State, 2008 MT 150, ¶ 9, 343 Mont. 90, 183 P.3d 861
(citing State v. Racz, 2007 MT 244, ¶ 13, 339
Mont. 218, 168 P.3d 685).
A defendant's right to counsel is guaranteed both by the
Sixth and Fourteenth Amendments to the United States
Constitution and Article II, Section 24 of the Montana
Constitution. Whitlow, ¶ 10. Ineffective
assistance claims are evaluated under the two-prong test
articulated in Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052 (1984). Whitlow, ¶ 10;
Lacey, ¶ 23.
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
"counsel" guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
"A defendant must satisfy both prongs of this test in
order to prevail on an ineffective assistance of counsel
claim." Whitlow, ¶ 11 (citing Adams v.
State, 2007 MT 35, ¶ 22, 336 Mont. 63, 153 P.3d
601). As such, "if an insufficient showing is made
regarding one prong of the test, there is no need to address
the other prong." Whitlow, ¶ 11 (citing
Adams, ¶ 22).
Under the first prong, a defendant must demonstrate that
counsel's representation "fell below an objective
standard of reasonableness." Strickland, 466
U.S. at 688, 104 S.Ct. at 2064. Although strategic decisions
may be considered sound, and thus effective, categorizing
actions as strategic or tactical "does not necessarily
mean that the conduct was objectively reasonable."
Whitlow, ¶ 18. Accordingly, whether
counsel's actions come within the "wide range of
professionally competent assistance" is determined by
"the facts of the particular case, viewed at the time of
counsel's conduct" and must be viewed "in light
of all the circumstances." Strickland, 466 U.S.
at 690, 104 S.Ct. at 2066.
The second prong requires demonstration that "the
deficient performance prejudiced the defense."
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To
prove prejudice, "[t]he defendant must show that there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome." Strickland, 466 U.S at 694, 104 S.Ct.
"Judicial scrutiny of counsel's performance must be
highly deferential." Strickland, 466 U.S. at
689, 104 S.Ct. at 2065. There is a "strong
presumption" that counsel's actions
"'fall within the wide range of reasonable
professional assistance.'" Whitlow, ¶
15 (quoting Strickland, 466 U.S. at 689, 104 S.Ct.
at 2065); accord Lacey, ¶ 24; Taylor
v. State, 2014 MT 142, ¶ 12, 375 Mont.
234, 335 P.3d 1218. We thus turn to Golie's claims.
1. Did counsel provide ineffective assistance by not
objecting to the mental-state jury instruction?
In his direct appeal, Golie argued Brownlee was ineffective
by failing to object to the conduct-based mental state
instructions given to the jury. Golie, ¶ 5. We
affirmed in a non-cite opinion, stating:
The record here simply does not allow us to undertake an
adequate review of Golie's IAC allegation and, therefore,
he must seek postconviction relief (PCR). It is unclear from
the record why Brownlee did not object to the conduct-based
"knowingly" jury instruction. Brownlee's
actions may well have been taken within her tactical