May 27 2009
DA 08-0359
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 183N
CODY WILLIAM MARBLE,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV-2006-1200
Honorable Douglas G. Harkin, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Cody William Marble (Self-Represented), Deer Lodge, Montana
For Appellee:
Steve Bullock, Montana Attorney General, Deborah F. Butler, Assistant
Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney, Dorothy Brownlow,
Deputy County Attorney, Missoula, Montana
Submitted on Briefs: May 13, 2009
Decided: May 27, 2009
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number, and disposition shall be included in
this Court's quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 Cody Marble, appearing self-represented, appeals from the Order and
Memorandum of the Fourth Judicial District Court, Missoula County, denying Marble’s
petition for postconviction relief. Marble was convicted in November 2002 of sexual
intercourse without consent, and we affirmed his conviction on direct appeal in State v.
Marble, 2005 MT 208, 328 Mont. 223, 119 P.3d 88.
¶3 Marble then filed a petition for postconviction relief, setting forth three grounds
for relief: (1) ineffective assistance of trial counsel, (2) newly discovered evidence that a
videotape used at trial was tampered with and/or otherwise failed chain-of-custody
safeguards, and (3) prosecutorial misconduct. The District Court thoroughly analyzed
each of these claims and concluded as follows. First, the court concluded that Marble
had failed to established that his counsel’s performance fell below an objective standard
of reasonableness in any of the 21 instances cited by Marble, much less that any deficient
performance prejudiced his defense. Second, the court concluded that Marble had not
met his burden of showing by a preponderance of the evidence that the videotape was
altered, tampered with, or failed to meet basic chain-of-custody requirements. Lastly, the
2
court concluded that two of Marble’s prosecutorial misconduct claims could have been
raised on direct appeal and, thus, were procedurally barred. The court further concluded
that Marble had failed to identify any facts supporting his other prosecutorial misconduct
claims (namely, that the prosecutor “secreted” two witnesses from the defense, and that
the prosecutor knew that her witnesses were “inclined to lie, on the stand, at trial”).
¶4 On appeal, Marble contends that the District Court erred in denying his petition for
postconviction relief on his claims of ineffective assistance of counsel, newly discovered
evidence, and prosecutorial misconduct. In response, the State addresses the merits of
these claims and also points out repeatedly, and correctly, that Marble’s appellate briefs
largely fail to comply with M. R. App. P. 12(1)f. in that Marble does not advance
argument or authority in support of his position.
¶5 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2003, which provides for
memorandum opinions. Having reviewed the record, the District Court’s order, and the
parties’ briefs, we conclude that the legal issues are clearly controlled by settled Montana
law, which the District Court correctly interpreted and applied.
¶6 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS
/S/ JOHN WARNER
3