July 13 2010
DA 09-0352
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 152
STATE OF MONTANA,
Plaintiff and Appellee,
v.
KALEM JOHNSTON,
Defendant and Appellant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and For the County of Fergus, Cause No. DC 08-48
Honorable E. Wayne Phillips, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joslyn Hunt, Chief Appellate Defender; Jennifer A. Hurley, Assistant
Appellate Defender; Helena, Montana
For Appellee:
Steve Bullock, Montana Attorney General; C. Mark Fowler, Assistant
Attorney General; Helena, Montana
Thomas P. Meissner, Fergus County Attorney, Lewistown, Montana
Submitted on Briefs: June 2, 2010
Decided: July 13, 2010
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Kalem Johnston (Johnston) was convicted after a jury trial in the Tenth Judicial
District Court, Fergus County, of obstructing a peace officer in violation of § 45-7-302,
MCA. He appeals, and we reverse and remand for a new trial.
¶2 We state the issue as follows:
¶3 Did Johnston’s trial counsel render ineffective assistance by failing to object to
the jury instruction defining the mens rea element of the offense of obstructing a peace
officer?
PROCEDURAL AND FACTUAL BACKGROUND
¶4 On the evening of April 22, 2008, Fergus County Sheriff’s Office Deputies Randy
Poser and Tracey Lewellen responded to the report of gunshots and a vehicle driving in
the vicinity of Maiden Canyon in the Judith Mountains near Hilger, Montana, during
winter weather conditions. After stopping their vehicle because of the road condition,
Deputies Poser and Lewellen observed Johnston walking toward them. They asked him
what he was doing and whether he was having any problems on the snowy mountain
road. Johnston informed Poser and Lewellen that the vehicle he was in had become stuck
but that everything was fine and the vehicle was “almost unstuck.” The deputies asked
Johnston whether other people were stuck further up the mountain. Although he would
not tell the deputies the names of the individuals, Johnston indicated that there were “four
or five” other individuals further up the road.
¶5 Concerned for the safety of the other persons, Poser and Lewellen accompanied
Johnston to a vehicle stuck in the snow about 200 yards further up the road. As the
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deputies arrived, two occupants, Mike Challans (Challans) and Jesse Meader (Meader),
exited the vehicle. Seeing that there were only two people in the vehicle, Poser inquired
about the whereabouts of the other people Johnston had referenced. Johnston replied that
he was including the two deputies in the count of “four or five” people he had referenced
but that, additionally, there was another vehicle further up the road which was also stuck.
Johnston gave another iteration of his story by later telling the officers that there was one
more person further up the road with the other vehicle. After 30-40 minutes of
attempting to assess the matter, the deputies decided that, given the conditions, it was
prudent to bring Challans, Meader, and Johnston back to the sheriff’s station in
Lewistown and make other arrangements to look for the additional person, rather than
proceeding further up the mountain. Back at the station, Johnston informed Lewellen
that the name of the person with the other vehicle was Steve Smith (Smith), and that he
was indeed still on the mountain. As a result of this information, a search and rescue
team was sent back up to Maiden Canyon to look for Smith, who was not located there.
¶6 As a result of Johnston’s various statements to police, he was charged with
obstructing a peace officer, a misdemeanor, in violation of § 45-7-302, MCA. On
June 23, 2008, Johnston was convicted in Fergus County Justice Court. He appealed, and
after a March 10, 2009 jury trial, Johnston was again found guilty. He was sentenced to
six month in the Fergus County Jail, with all but ten days suspended, and was ordered to
pay a $500 fine and $75 in surcharges. Johnston appeals.
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STANDARD OF REVIEW
¶7 We review jury instructions for abuse of discretion to determine whether the jury
instructions, as a whole, fully and fairly instructed the jury on the law applicable to the
particular case. State v. Hall, 2003 MT 253, ¶ 24, 317 Mont. 356, 77 P.3d 239.
Ineffective assistance of counsel claims are mixed questions of law and fact which we
review de novo. State v. Kougl, 2004 MT 243, ¶ 12, 323 Mont. 6, 97 P.3d 1095.
DISCUSSION
¶8 Did Johnston’s trial counsel render ineffective assistance by failing to object to
the jury instruction defining the mens rea element of the offense of obstructing a peace
officer?
¶9 Under § 45-7-302(1), MCA (2007), the offense of obstructing a peace officer as
charged in this case is committed by a person who “knowingly obstructs, impairs or
hinders . . . the performance of a governmental function . . . .” Under § 45-2-101(35),
MCA, “knowingly” is defined as follows:
a person acts knowingly with respect to conduct or to a circumstance
described by a statute defining an offense when the person is aware of the
person’s own conduct or that the circumstance exists. A person acts
knowingly with respect to the result of conduct described by a statute
defining an offense when the person is aware that it is highly probable that
the result will be caused by the person’s conduct . . . .
As we have explained, “[w]hen a criminal offense requires that a defendant act
‘knowingly,’ the District Court must instruct the jury on what the term ‘knowingly’
means in the context of the particular crime.” State v. Azure, 2005 MT 328, ¶ 20, 329
Mont. 536, 125 P.3d 1116.
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¶10 The District Court instructed the jury that “[a] person acts knowingly when the
person is aware of his or her conduct,” which Johnston asserts was error. Johnston
argues that the obstruction statute “seeks to avoid the singular result of obstruction of a
peace officer, not any particular conduct” (emphasis added) and, accordingly, the proper
definition of “knowingly” under § 45-2-101(35), MCA, for this crime is awareness that it
is highly probable that his conduct will obstruct, impair or hinder the officers’
performance of their governmental function. Johnston argues that we acknowledged this
principle in City of Kalispell v. Cameron, 2002 MT 78, 309 Mont. 248, 46 P.3d 46.
¶11 The State acknowledges that it had to “prove Johnston was aware that his conduct
would hinder the execution of the deputies’ duties,” but nonetheless argues that the
mental state element must still go to conduct because the result of the conduct—
obstruction—has “little to do with what the defendant is thinking.” It reasons that
Johnston is attempting to add an additional causality requirement into the statute that
does not exist.
¶12 Though not directly addressing this issue in Cameron, we did state for purposes of
reviewing a denial of the defendant’s motion for directed verdict that the obstruction
statute “require[s] that an individual obstructing a peace officer must engage in conduct
under the circumstances that make him or her aware that it is highly probable that such
conduct will impede the performance of a peace officer’s lawful duty. In other words,
the City had to prove that Cameron was aware that his conduct would hinder the
execution of the Officers’ duties.” Cameron, ¶ 11.
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¶13 Here, the prosecutor’s closing argument emphasized that Johnston had to simply
be aware of his conduct in order to satisfy the mens rea element of the offense:
You will also note that the instruction requires a person to act knowingly,
and there is an instruction on knowingly also. And, if you have a question
about what it means to act knowingly, go ahead and dig it out. But
essentially, knowingly is just a very short instruction. It says a person acts
knowingly when they are aware of their conduct. And really all that means
is that the criminal law, the law is to impose criminal responsibility not for
people who are not knowing what they are doing, perhaps in a psychotic
state, something they have done accidentally, things like that. Well there is
certainly no doubt that Mr. Johnston was acting knowingly. You know he
was able to recall here for you today that he wasn’t being straight forward
and honest with the officers. It is really not an issue, but I guess the
definition of the crime includes that element if you will, the fact that a
person acts knowingly.
The prosecutor added “[Johnston] admitted it I think when he told you that he was not
being honest and straight forward with the officers. He admitted commission of the
offense.”
¶14 Although the State acknowledges that it had to prove Johnston was aware that his
conduct could hinder the officers’ execution of their duties, its argument in favor of the
instruction given here negates that requirement. Rather than Johnston attempting to add a
causal element to the offense, it is the State which seeks to subtract an element. If we
were to approve the instruction and the prosecutor’s argument, an obstruction charge
could be established by merely proving that a person gave a dishonest answer in response
to an officer’s question. As we noted in Cameron, the statute clearly requires more, and
the instruction was therefore erroneous.
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¶15 Johnston acknowledges that his trial counsel did not object to the instruction
during trial and thus asks that we take up the issue under plain error review or pursuant to
his claim that trial counsel rendered ineffective assistance. The right to effective
assistance of “counsel in criminal prosecutions is guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution and by Article II, Section 24 of the
Montana Constitution.” Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d
861. When confronted with an ineffective assistance of counsel claim we apply the
two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed.2d 674 (1984); Whitlow, ¶ 10. Under this test, the defendant must demonstrate
(1) that counsel’s representation was deficient and (2) that counsel’s deficiency was
prejudicial by establishing that there was a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different. Kougl, ¶ 11.
¶16 In Kougl, we considered the defendant’s counsel’s failure to seek instructions to
view the testimony of the defendant’s accomplices with distrust and to require that such
testimony be corroborated. Kougl, ¶¶ 20-21. We concluded that we could review this
ineffectiveness claim on direct appeal because there was no plausible justification for
failure to seek the instructions. Kougl, ¶ 21. We reasoned that trial counsel “had nothing
to lose” by seeking the instructions and had “failed to use the law to strike at the heart of
the State’s case.” Kougl, ¶ 20. We reach the same conclusion here. Trial counsel had
nothing to lose in seeking a correct instruction, and the failure to do so allowed the
prosecutor to argue that Johnston had essentially confessed to the crime by his
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testimonial admission that he had been dishonest with the officers, thus reducing the
State’s burden in proving the crime. Counsel’s representation was deficient and
prejudiced Johnston’s case “such that there is a reasonable probability [the jury] would
have arrived at a different outcome.” Kougl, ¶ 26. The error thus requires reversal.
¶17 Reversed and remanded for a new trial in accordance with this opinion.
/S/ JIM RICE
We concur:
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
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State v. Johnston
Combined Opinion