June 3 2014
DA 13-0561
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 141
GARRY DAVID GOLDEN,
Petitioner, Appellant and Cross-Appellee,
v.
STATE OF MONTANA,
Respondent, Appellee and Cross-Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 08-1835
Honorable Mary Jane Knisely, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
David Rice, Clinical Professor of Law, Jacob Yerger, F. Peter Landsiedel,
Clinical Interns, School of Law, University of Montana, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
Assistant Attorney General, Helena, Montana
Scott Twito, Yellowstone County Attorney, Rod Souza, Deputy County
Attorney, Billings, Montana
For Amicus Curiae:
Colin M. Stephens, Montana Innocence Project, Smith, & Stephens, P.C.,
Missoula, Montana
Submitted on Briefs: April 23, 2014
Decided: June 3, 2014
Filed:
__________________________________________
Clerk
Justice Patricia Cotter delivered the Opinion of the Court.
¶1 In March 2005, Garry Golden was found guilty of felony sexual assault. He was
sentenced to serve 20 years under the supervision of the Montana Department of Corrections
with 15 years suspended. Golden appealed his conviction and in September 2007, we
affirmed. In December 2008, he filed a petition for postconviction relief in the Thirteenth
Judicial District Court, Yellowstone County, seeking DNA testing and relief from an
asserted ineffective assistance of counsel (IAC) claim. The District Court denied the petition
as untimely. In September 2009, we reversed and remanded the matter for review on the
merits.
¶2 In June 2010, Golden filed a second petition with the District Court requesting that he
be allowed to conduct discovery. The State moved to dismiss Golden’s petition for
postconviction relief and filed a memorandum opposing Golden’s motion for leave to
conduct discovery. In June 2013, the District Court denied Golden’s petition for DNA
testing, his request to conduct discovery, and the State’s motion to dismiss. The court
granted Golden’s petition for postconviction relief as it pertained to his IAC claim. Golden
appeals the District Court’s denial of his petition for DNA testing and the State cross-appeals
the District Court’s grant of Golden’s petition for postconviction relief on his IAC claim.
We affirm in part and reverse in part.
ISSUES
¶3 The issue on appeal is whether the District Court erred in denying Golden’s petition
for DNA testing.
2
¶4 The issue on cross-appeal is whether the District Court erred in granting Golden’s
petition for postconviction relief.
FACTUAL AND PROCEDURAL BACKGROUND
¶5 Garry Golden and Martin Holland were close friends, describing each other as
“family.” The two men even moved to Montana together in late 2001 or early 2002. They
lived and worked together. Shortly after arriving in Montana, Holland met L.W. L.W. had
two young children, daughter K.W. and son P.W. Holland subsequently moved in with L.W.
and the children and over time established a common law marriage. Golden also moved into
the mobile home with L.W., Holland, and the children for several weeks until he was able to
find another place to live.
¶6 Holland and L.W. maintained a close relationship with Golden and allowed him
almost unlimited access to their car and home by providing him with keys to both. Golden
visited daily. On August 13, 2002, Golden visited Holland while L.W. was at work. Golden
had been drinking and, according to Holland, appeared intoxicated. The children were at
home and three-year old P.W. was walking around naked in the heat. Holland and Golden
spent some time on the computer then Holland excused himself to “rest.” Holland testified
that because Golden was drunk and “smelled,” he did not want to spend more time with him.
Rather than leaving, however, Golden remained in the living room with P.W. and four-year
old K.W.
¶7 Approximately one-half hour later, Holland emerged from the bedroom and witnessed
Golden performing oral sex on P.W., who was reclining across Golden’s lap. Holland
testified that while shocked, he was 100% positive of what he saw. He ordered Golden to
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leave and to leave the keys to the trailer home and the car on his way out. Golden told
Holland he was sorry and left.
¶8 Shortly thereafter, Paul Foster, a neighbor and mutual friend of Golden and Holland,
stopped by and found a “stunned” and “truly shocked” Holland. After discussing the events
with Foster, Holland called L.W. at work and asked her to come home immediately. When
L.W. arrived at approximately 9:15, Holland told her what had happened. After confirming
that P.W. was unharmed, L.W. called the police. An officer took statements from Holland,
Foster, and L.W. and recommended that they take P.W. to the hospital to have him “checked
out.” L.W. found some already-worn underpants on P.W.’s bedroom floor, put them and
other clothes on him and took him to the hospital at around midnight.
¶9 At the hospital, L.W. explained that the child had been orally sexually assaulted
earlier in the evening according to Holland who had witnessed the assault. L.W. did not
identify Golden and admitted that she was not home at the time. Based upon L.W.’s
explanation of why P.W. needed to be examined, the doctor took swabs from his penis and
scrotum and retained his underpants for analysis. The underwear and the swab samples were
sent to the Montana State Crime Laboratory to be analyzed for saliva DNA.
¶10 Meanwhile, officers went to Golden’s home and arrested him. During questioning,
Golden admitted visiting Holland’s trailer, being intoxicated and continuing to drink while at
Holland’s, remaining with the children after Holland left the room, and holding unclothed
P.W. on his lap. He denied performing oral sex on P.W. but stated that it was “unlikely, but
possible” that he had done something wrong that he did not remember.
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¶11 The laboratory could not identify Golden’s DNA on the sample swabs or P.W.’s
underwear. Following a trial in 2004, the jury was unable to reach a verdict and a mistrial
was declared. At a second trial in 2005, at which Holland, L.W., Foster, and the examining
physician testified, Golden objected to hearsay testimony from the latter three witnesses.
The District Court overruled his objections. The jury reached a guilty verdict and Golden
appealed on the ground that inadmissible hearsay had been erroneously admitted. As noted
above, in 2007 we affirmed Golden’s conviction. State v. Golden, 2007 MT 247N (Golden
1).
¶12 In December 2008, Golden filed a postconviction petition. In this petition, he claimed
he had received ineffective assistance of counsel and he asked for postconviction DNA
testing. The District Court dismissed Golden’s petition on procedural grounds and we
reversed and remanded the matter for consideration of the petition on the merits. The State
sought to dismiss the petition and Golden subsequently moved for leave to conduct
discovery. In June 2013, the District Court denied Golden’s petition for DNA testing, his
motion for leave to conduct discovery, and the State’s motion to dismiss. The court granted
Golden’s petition as it pertained to his claims of IAC.
¶13 Golden filed a timely appeal and the State cross-appeals.
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STANDARD OF REVIEW
¶14 A district court’s decision regarding postconviction DNA testing under § 46-21-110,
MCA, constitutes a mixed question of fact and law, which we review de novo. Haffey v.
State, 2010 MT 97, ¶ 9, 356 Mont. 198, 233 P.3d 315.
¶15 In considering ineffective assistance of counsel claims in postconviction proceedings,
we apply the two-pronged test set forth by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). See Hagen v. State, 1999 MT 8, ¶ 10,
293 Mont. 60, 973 P.2d 233. Strickland’s two-part test requires the defendant to show that
his counsel’s performance was deficient and that the deficient performance prejudiced the
defense and deprived the defendant of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at
2064. A petitioner must establish both prongs of the Strickland test. We need not address
both prongs if a petitioner fails to establish either prong. State v. Mederos, 2013 MT 318,
¶ 12, 372 Mont. 325, 312 P.3d 438.
¶16 A deficient performance falls “below an objective standard of reasonableness
measured under prevailing professional norms and in light of the surrounding
circumstances.” There is a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. Mederos, ¶ 13. A petitioner must overcome the
presumption that under the circumstances the action he challenges might be considered
sound trial strategy. Counsel’s trial strategies are entitled to great deference when reviewed
on a claim of IAC. State v. Whitlow, 2001 MT 208, ¶ 17, 306 Mont. 339, 33 P.3d 877.
¶17 As for the second prong of Strickland, a petitioner alleging ineffective assistance must
demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional
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errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694,
104 S. Ct. at 2068. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
DISCUSSION
¶18 Did the District Court err in denying Golden’s petition for DNA testing?
¶19 Golden petitioned the District Court for additional DNA testing because the DNA
testing performed at the time of the accusation did not detect Golden’s saliva DNA on either
P.W. or P.W.’s underwear. He asserted that the DNA actually found on P.W.’s underwear
(this unidentified DNA is referred to as the “unknown contributor” DNA) should be further
tested and compared to the DNA of Holland and Foster and against the CODIS1 program
containing databases of known criminals. He also argued for “substrate control” testing of
P.W.’s underwear, claiming such testing should have been performed initially but was not.
¶20 In considering Golden’s petition for additional DNA testing, the District Court relied
upon § 46-21-110(5)(e), MCA, and Haffey, ¶ 18. It concluded based upon these authorities
that it must determine whether or not further DNA testing would potentially exonerate
Golden. The court noted that the minor amount of DNA belonging to an unknown
contributor and detected on P.W.’s underwear could be attributed to any number of sources
given that the underwear had been on the floor for an undetermined amount of time and there
was no way of knowing who had come in contact with it.
1
CODIS, the acronym for the Combined DNA Index System, is “the FBI’s program
of support for criminal justice DNA databases as well as the software used to run these
databases.” FBI website at http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-
and-ndis-fact-sheet.
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¶21 The court reviewed the record and the pleadings and determined that “[e]ven if the
unknown contributor were identified, it would not make it any less likely that [Golden]
committed the assault against the victim, or any more likely that someone else did.” The
District Court concluded that further DNA testing would not exonerate Golden in light of the
State’s strong eyewitness evidence and Golden’s own incriminating statements made after
the incident.
¶22 On appeal, Golden argues that the District Court misapplied the Haffey test. In
Haffey, Haffey admitted to and was convicted of felony assault with a weapon and DUI after
striking a pedestrian with his vehicle while driving intoxicated. Haffey, ¶ 4. After his jury
conviction, he sought postconviction DNA testing in an attempt to establish that he was not
driving the car at the time of the accident. Haffey, ¶ 6. Haffey is the first case this Court
decided pertaining to postconviction DNA testing under § 46-21-110, MCA, which was
enacted in 2003. As we noted in Haffey, this statute provides a procedure by which “a
person convicted of a felony may seek DNA testing to show innocence.” Haffey, ¶ 12.
¶23 Section 46-21-110, MCA, provides in relevant part:
(1) A person convicted of a felony who is serving a term of incarceration may
file a written petition for performance of DNA testing, as defined in 44-6-101,
in the court that entered the judgment of conviction. The petition must include
the petitioner’s statement that the petitioner was not the perpetrator of the
felony that resulted in the conviction and that DNA testing is relevant to the
assertion of innocence.
. . .
(5) The court shall grant the petition if it determines that the petition is not
made for the purpose of delay and that:
(a) the evidence to be tested:
(i) was secured in relation to the trial that resulted in the conviction;
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(ii) is available; and
(iii) is in a condition that would permit the requested testing;
(b) the evidence to be tested has been subject to a chain of custody sufficient
to establish that it has not been substituted, tampered with, degraded,
contaminated, altered, or replaced in any material aspect;
(c) the identity of the perpetrator of the felony was or should have been a
significant issue in the case;
(d) the petitioner has made a prima facie showing that the evidence sought to
be tested is material to the question of whether the petitioner was the
perpetrator of the felony that resulted in the conviction;
(e) the requested testing results would establish, in light of all the evidence,
whether the petitioner was the perpetrator of the felony that resulted in the
conviction; and
(f) the evidence sought to be tested was not previously tested or was tested
previously but another test would provide results that are reasonably more
discriminating and probative on the question of whether the petitioner was the
perpetrator of the felony that resulted in the conviction or would have a
reasonable probability of contradicting the prior test results.
¶24 Addressing § 46-21-110(5)(e), MCA, we stated:
It is under this provision that a district court must weigh the exculpatory
potential of DNA test results favorable to the petitioner against the
prosecution’s evidence presented at trial. This is a fact-specific inquiry that
will lead to a spectrum of results in different cases. For example, where “the
State presented a strong case, and a favorable DNA test would discredit only
an ancillary fact, the testing should be refused.” . . . “At the opposite end of the
spectrum, where the DNA test could exonerate the defendant, it does not
matter how strong the other evidence might have been; [the statute] is
satisfied.” (Internal citations omitted.)
Haffey, ¶ 18.
¶25 Golden claims that the District Court erred when it focused exclusively on whether
additional DNA testing could exonerate him. He asserts that under the statute and
extrajurisdictional cases cited in Haffey, additional DNA testing should be granted if he
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presents evidence which “tends to significantly advance his claim of innocence,” or “merely
raises a reasonable inference of innocence.” He argues that the court misinterpreted Haffey
and the statute by requiring him to prove that postconviction DNA testing would completely
exonerate him. (Emphasis added.)
¶26 The Montana Innocence Project (MIP) submitted an amicus curiae brief urging a
liberal interpretation of the applicable statutes based, in part, upon review of the legislative
history. The MIP also provided multiple statistics of the number of incarcerated persons
found guilty on eyewitness testimony and subsequently exonerated by DNA evidence.
¶27 The State responds that because the plain language of the statute is clear and
unambiguous, there is no reason to rely upon the legislative history.
Sections 46-21-110(1)(c) and (5)(e) both require the petitioner to explain how the required
testing would establish petitioner’s “innocence” and “whether the petitioner was the
perpetrator of the felony.” The statute requires that the petitioner swear under the penalties
of perjury that he is innocent and that the DNA testing would establish his innocence.
Section 46-21-110(1) and (1)(c), MCA. As to the petitioner’s burden, the statute requires
him to make “a prima facie showing that the evidence sought to be tested is material to the
question of whether the petitioner was the perpetrator of the felony that resulted in the
conviction.” Section 46-21-110(5)(d), MCA.
¶28 The State also argues that Golden’s requests are not statutorily authorized because the
statute does not contemplate collection of new biological samples from Holland and Foster.
Section 46-21-110(5)(a), MCA. It does not authorize external database queries.
Section 46-21-110, MCA. Essentially, the statute only authorizes the court, under certain
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conditions, to order postconviction “DNA testing” of previously-secured biological
evidence.
¶29 Lastly, the State maintains that DNA evidence was not what convicted Golden; rather,
it was the strength of the prosecutor’s case, including the strong eyewitness testimony.
¶30 We first address construction of the applicable statute. It is well-established that
when interpreting a statute, legislative intent must first be determined from the plain words
used in the statute. If after reviewing the plain words, confusion or ambiguity exists, we turn
to the legislative history for guidance. State v. Goebel, 2001 MT 73, ¶ 21, 305 Mont. 53, 31
P.3d 335. In this case, the statute is clear. It requires that before a district court may
authorize postconviction DNA testing, the petitioner must establish that the requested DNA
testing will determine “whether the petitioner was the perpetrator of the felony that resulted
in the conviction.” Section 46-21-110(5)(e), MCA. He must make a prima facie showing
that the evidence is material to the question of his guilt or innocence. Golden has not met the
standard. It is undisputed that Golden’s DNA was not found on the child or his clothing.
However, the DNA test result presented at trial was outweighed by the State’s evidence,
including a strong eyewitness, resulting in Golden’s conviction. In other words, DNA was
not used to convict Golden at trial. It stands to reason that additional DNA testing would not
be more favorable to Golden than the existing DNA results. Nor would the identification of
the “unknown contributor” make it any less likely, based upon the evidence presented at
trial, that Golden assaulted P.W.
¶31 Furthermore, it is apparent that the Legislature did not intend the statute to be used in
the manner Golden seeks. The language does not authorize testing of previously untested
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persons, nor does it contemplate a comparison of newly-obtained DNA evidence with federal
information databases. It is well-established that the Court may not disregard the plain
language of the statute; it must ascertain what is in “terms or in substance contained” in a
statute, and not insert what is omitted or omit what is inserted. Section 1-2-101, MCA; State
v. Cooksey, 2012 MT 226, ¶ 32, 366 Mont. 346, 286 P.3d 1174.
¶32 In its amicus brief, MIP relates that in numerous cases eyewitness testimony has been
later proved to be inaccurate. Certainly this can occur in cases where the assailant was
previously unknown to the victim or eyewitnesses. However, this is not a case of mistaken
identity. Holland was mere feet away from Golden when he saw Golden assault the boy.
Moreover, despite his denial of sexual assault, Golden corroborated every other fact Holland
gave the police—time of arrival, Golden being intoxicated, the men playing games and
checking e-mail on the computer, Golden’s continued drinking, Holland retiring for a nap, a
naked P.W. lying across Golden’s lap, and Golden’s apology to Holland on the way out the
door. He stated he knew of no reason why Holland would lie about this. He acknowledged
that he was drunk when it happened and “[i]t is unlikely but possible that I did something
that I don’t remember.” The jury was persuaded by the State’s evidence and convicted him.
For these reasons, and because the DNA tests requested by Golden are not authorized under
the language of the statute, we conclude the District Court did not err in denying Golden’s
petition.
¶33 Did the District Court err in granting Golden’s petition for postconviction relief?
Ineffective assistance of trial counsel
12
¶34 Golden alleged in his petition for postconviction relief that his trial counsel—in both
his first and second criminal jury trials—failed to consult with or employ a DNA expert. He
posited that the absence of such an expert constituted deficient performance by counsel and
prejudiced his defense.
¶35 The District Court relied upon the two-prong test set forth in Strickland. Under this
test, Golden was required to establish that his trial counsel’s performance was deficient and
that the deficiency prejudiced his defense. See Op. ¶ 15.
¶36 As the District Court noted, Golden’s counsel explained in an affidavit that he had
consulted with a DNA expert but chose not to call the witness to the stand after learning that
the DNA tests had excluded Golden as a DNA contributor. Counsel was concerned that
having the expert on the stand could potentially “open the door to other issues,” that may
prove disadvantageous to Golden. Therefore he made the strategic decision to exclude the
DNA expert from the witness list.
¶37 The court concluded that Golden did not establish that trial counsel’s performance
was deficient, i.e., he did not satisfy the first prong of the Strickland test. Consequently, the
District Court denied Golden’s petition as it applied to trial counsel IAC. We affirm the
District Court’s ruling as to this issue. There was no reason to call a defense DNA expert
when the DNA results were favorable to Golden. As discussed above, reasonable trial
strategy decisions cannot be the basis for a finding of ineffective assistance. Whitlow, ¶ 17.
Because Golden did not satisfy the first prong of Strickland, we need not address the second
prong. Mederos, ¶ 12.
Ineffective assistance of appellate counsel
13
¶38 Golden also claimed in his petition for postconviction relief that his appellate counsel
did not adequately brief his claim that inadmissible hearsay had been introduced during his
trial. He argued that counsel failed to comply with M. R. App. P. 23(a)(4)(2005)2 because
she neglected to set forth the required legal argument with supporting authority in Golden’s
opening brief on appeal. He asserts this constituted ineffective assistance and that he was
prejudiced because this Court did not reach the merits of his hearsay claim in Golden 1.3
¶39 In reliance upon Strickland, the District Court determined that Golden had presented a
sound argument that inadmissible hearsay had been admitted, and that counsel’s
“unsatisfactory brief” in addressing the hearsay claim constituted deficient performance.
The court concluded that without a proper legal argument in the brief, this Court was unable
to review the issue on appeal, resulting in procedural prejudice to Golden. The District
Court granted Golden’s motion for postconviction relief on the issue of appellate counsel’s
IAC and ordered that Golden receive a new appeal of his trial court conviction.
¶40 On cross-appeal, the State asserts that the District Court erred in granting Golden’s
petition on this issue. It argues that the hearsay admitted at trial fell within recognized
statutory exceptions and therefore was not inadmissible. In the alternative, the State submits
that even if the statements were inadmissible, it was harmless error to admit them in that they
were cumulative and did not contribute to Golden’s conviction in light of Holland’s
“unequivocal testimony under oath.”
2
Renumbered M. R. App. P. 12(1)(f)(2007).
3
In Golden 1, a non-citable opinion, we chastised appellate counsel for failing to
comply with M. R. App. P. 23(a)(4). As a consequence, we held that Golden had not
14
¶41 The State also argues that the District Court did not conduct an appropriate prejudice
analysis under prong two of Strickland. It claims that had the court applied the prejudice
standard, it would have concluded that Golden failed to show “a reasonable probability that
he would have prevailed on his direct appeal but for counsel’s failure to brief the issues
differently.” Stated otherwise, he could not show that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Dawson v. State, 2000 MT 219, ¶ 20, 301 Mont. 135, 10 P.3d 49.
¶42 Golden counters with a detailed argument that the hearsay statements admitted at trial
did not satisfy the claimed hearsay exceptions, and that appellate counsel did not include a
proper hearsay analysis in Golden’s briefs nor did she argue that the admission of the
testimony prejudiced Golden.
¶43 We conclude that we need not determine whether the hearsay statements were
inadmissible because these statements were cumulative and constituted harmless trial error
under State v. Van Kirk, 2001 MT 184, 306 Mont. 215, 32 P.3d 735. In Van Kirk, we
endorsed a “cumulative evidence” test under which we determine whether the fact-finder
was presented with admissible evidence that proved “the same facts as the tainted evidence
proved.” Van Kirk, ¶ 43.
¶44 The ostensibly tainted hearsay evidence consists of certain testimony given by Foster,
L.W., and the doctor who examined the child at the hospital. Foster and L.W. each testified
that it was related to them by Holland that Golden had sexually assaulted the child. The
established that the District Court had committed error in admitting the challenged
statements and we affirmed his conviction.
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treating physician testified that L.W. told her the child had been sexually assaulted but that
L.W. did not identify the perpetrator. All three witnesses admitted that they had no first-
hand knowledge of the event. Their statements merely parroted Holland’s unequivocal
testimony regarding the assault he witnessed in his living room. Thus, the jury was
presented with admissible eyewitness testimony by Holland that proved “the same facts as
the tainted evidence proved.” Van Kirk, ¶ 43.
¶45 In Van Kirk, we stated that “[a] cause may not be reversed by reason of any error
committed by the trial court against the convicted person unless the record shows that the
error was prejudicial.” Van Kirk, ¶ 29. We explained that “error is prejudicial, and requires
reversal, if a reasonable possibility exists that the inadmissible evidence might have
contributed to a conviction.” Van Kirk, ¶ 29. Noting a distinction between “structural”
errors committed in criminal trials and the “more typical ‘trial’ error,” we ruled that “[t]rial
error is not presumptively prejudicial and therefore not automatically reversible, and is
subject to review under our harmless error statute . . . .” Van Kirk, ¶ 40.
¶46 In concluding that appellate counsel rendered ineffective assistance for her failure to
present an appropriate legal argument on the hearsay issue, the District Court found that the
first prong of Strickland was met; however, it did not reach the second prong. We reach that
prong here. The truly damning evidence against Golden was Holland’s unequivocal
eyewitness testimony, presented under oath. In view of this strong direct evidence, we
cannot conclude that admission of the objectionable statements contributed to Golden’s
conviction. We therefore conclude that if indeed erroneous, the admission of the hearsay
testimony was harmless error under the circumstances of this case. This being so, we further
16
conclude that had appellate counsel adequately briefed the hearsay issue on direct appeal,
there is no reasonable probability that the outcome of the appeal would have been different.
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
CONCLUSION
¶47 For the foregoing reasons, we affirm the District Court’s denial of Golden’s petition
for postconviction DNA testing and reverse the court’s grant of his petition as it pertains to
IAC of appellate counsel.
/S/ PATRICIA COTTER
We Concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JIM RICE
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