Submitted on Briefs: August 2, 2017
FROM: District Court of the Thirteenth Judicial District, In
and For the County of Yellowstone, Cause No. DC 14-962
Honorable Russell C. Fagg, Presiding Judge COUNSEL OF RECORD:
Appellant: Chad Wright, Chief Appellate Defender, Koan
Mercer, Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Micheal
S. Wellenstein, Assistant Attorney General, Helena, Montana
Scott Twito, Yellowstone County Attorney, Christopher A.
Morris, Deputy County Attorney, Billings, Montana
Edward Mitchell (Mitchell) was charged with and tried for one
count of assault with a weapon and one count of aggravated
assault upon Tanner Conway, and one count of assault with a
weapon upon Heather Conway. After a jury trial, Mitchell was
convicted of assault with a weapon upon Heather, and
acquitted of the two counts involving Tanner. Mitchell
appeals his conviction. We affirm, addressing the following
1. Did defense counsel provide ineffective assistance by
failing to request a bystander justifiable use of force jury
2. Did the District Court impose illegal parole
AND PROCEDURAL BACKGROUND
On November 19, 2014, police responded to an emergency call
at the residence of Paula and Jeff Comer. Comers'
daughter, Heather Conway, and her husband, Tanner Conway,
lived with Comers and slept in a second-floor bedroom.
Additionally, Comers' other daughter, Courtney Comer, and
her boyfriend, Mitchell, lived with them and slept in a
The emergency call was spawned by an altercation, which
eventually involved the entire family. Mitchell and Courtney
began the day with an argument and continued squabbling
throughout the day. Mitchell got drunk and high, returned
home later in the day, and passed out in the kitchen.
Courtney arrived home after work, and found Mitchell passed
out and covered in vomit. She woke him and cleaned him;
thereafter, they commenced a loud verbal argument. Meanwhile,
Tanner and Heather were attempting to sleep in their upstairs
bedroom, and, at one point, Tanner went downstairs to ask
Mitchell and Courtney to be quiet. Mitchell began to argue
with Tanner, stating he had never liked Tanner and calling
him a "honky" and a "cracker." In
response, Tanner called Mitchell a "nigger." The
verbal fight between Tanner and Mitchell escalated until
Tanner headed back upstairs.
Meanwhile, Heather, Courtney, and Jeff tried to physically
remove Mitchell from the house. Tanner returned to the
landing at the base of the stairs with a baseball bat and
shouted at Mitchell, telling him to leave. While Heather
called emergency services, Courtney and Jeff tried to shove
Mitchell out the door, but he pushed his way into the kitchen
and grabbed a knife. Courtney and Jeff disarmed Mitchell.
Paula entered the fray and told Mitchell to leave. However,
instead of leaving, Mitchell grabbed a second knife and
engaged Tanner. Courtney and Heather placed themselves
between Tanner and Mitchell. In the ensuing fight, Mitchell
cut Heather with the knife, stabbed Tanner in the chest, and
bit Tanner's finger. Tanner hit Mitchell with the
baseball bat. Their fight ranged from the kitchen, down the
basement stairs, and back up the stairs. Finally, Courtney
and Heather shoved Mitchell out the front door. Locked out of
the house, Mitchell began to pound on the door and shout
threats until police arrived.
Mitchell was charged with one count of assault with a weapon
and one count of aggravated assault upon Tanner, and one
count of assault with a weapon upon Heather, all felonies.
Mitchell asserted the defense of justifiable use of force.
Defense counsel did not seek, and the jury was not given, any
instructions designating Heather as a "bystander"
or addressing her status as such. The jury found Mitchell
guilty of assaulting Heather with a weapon, and acquitted him
of the two charges involving Tanner. Mitchell appeals,
primarily challenging the effectiveness of his counsel
regarding the jury instructions.