State v. Johnson

552 P.3d 683

2024 MT 152

STATE of Montana, Plaintiff and Appellee,

v.Shane Clark JOHNSON, Defendant and Appellant.

DA 21-0517

Supreme Court of Montana.

Submitted on Briefs: April 24, 2024

Decided: July 23, 2024

APPEAL FROM: District Court of the Twelfth Judicial District, In and For the County of Hill, Cause No. DC-21-2013-157, Honorable Matthew J. Cuffe, Presiding Judge

For Appellant: Chad Wright, Appellate Defender, Tammy A. Hinderman, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Christine Hutchison, Assistant Attorney General, Helena, Montana, Lacey Lincoln, Hill County Attorney, Karen Marie Alley, Daniel Guzynski, Special Deputy County Attorneys, Havre, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 Shane Clark Johnson ("Johnson") appeals his negligent homicide conviction and sentence from the Twelfth Judicial District Court, Hill County, arising from the 2013 death of his brother Travis. We restate the following issues on appeal:

1. Whether Johnson is entitled to a new trial because of prosecutorial misconduct during closing arguments.

2. Whether Johnson has established a record-based claim of ineffective assistance of counsel.

3. Whether the District Court imposed an illegal sentence when it sentenced Johnson to a consecutive weapon enhancement term in addition to his persistent felony offender sentence.

¶2 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In November 2013, the State charged Johnson with deliberate homicide, alleging that Johnson purposely or knowingly caused Travis’s death and used a firearm in the commission of the offense. At trial, the jury failed to reach a verdict on deliberate homicide but convicted Johnson of negligent homicide with the use of a dangerous weapon, Johnson appealed and, on the State’s concession, this Court reversed and remanded for a new trial. See State v. Johnson, 2020 Mont, LEXIS 2328. The State again charged Johnson with deliberate homicide. After Johnson filed a motion to dismiss on double jeopardy grounds, the State amended the charge to negligent homicide and the case proceeded to trial.

¶4 The second jury found Johnson guilty of felony negligent homicide, in violation of § 45-5-104, MCA, and found that he knowingly used a weapon in the commission of the offense, in violation of § 45-18-221, MCA. The court sentenced Johnson as a persistent felony offender to a term of fifty years in the Montana State Prison, plus a consecutive five-year sentence enhancement for the use of a weapon. Johnson now appeals.

¶5 Johnson testified during his first trial but not at the second. Instead, the parties stipulated that part of Johnson’s direct examination testimony would be read to the jury. Because that testimony and the trial court’s evidentiary rulings from the first trial inform the issues Johnson raises on appeal, we include discussion of those facts as presented to the court and jury on remand after Johnson’s first appeal.

First Trial

¶6 Judge Daniel Boucher presided over Johnson’s first trial. Johnson provided notice to the State that he intended to rely on the affirmative defense of justifiable use of force. The State filed a pretrial motion in limine requesting that the court prohibit Johnson from referencing at trial, among other things, Travis’s "alleged character for violence, if any, including specific acts of violence"; any of Travis’s autopsy results indicating a presence of alcohol or drugs; and any alcohol or drug use, arrests, and criminal convictions Travis may have had. Johnson responded that Travis’s alleged character for violence and specific acts of violence were admissible under a self-defense theory. At a hearing on the motion, the State asserted that Johnson had to present an offer of proof pretrial to determine admissibility of Travis’s prior acts. Johnson’s counsel disagreed but indicated that they intended to introduce three prior incidents of Travis’s behavior that Johnson and their mother Donna witnessed. The court determined that the offer of proof was sufficient to consider possible objections to admissibility; it did not issue an order directly ruling on the motion prior to trial.

¶7 At the beginning of Johnson’s trial, the State brought up the motion in limine again. The State asserted that the incidents were too remote in time to be admissible, even if Johnson laid the foundation for a justifiable use of force defense. The court ruled that it would not prohibit Johnson from raising the issue in opening statements or voir dire and that it would "[m]ost likely … allow the questions [ ] subject to review."

¶8 Before opening statements, the State orally moved to exclude testimony from Donna and her husband Robert regarding a text message that Travis received a couple of days before his death. The new boyfriend of Travis’s ex-girlfriend Bonnie sent Travis a text from Bonnie’s cell phone that stated, "I’m going to blow your head off." The State also moved to exclude evidence that Bonnie had obtained a protective order against Travis "at another point in time." The court indicated it did not think the evidence was admissible and prohibited the parties from mentioning it during opening statements but granted defense counsel leave to file a written response to the oral motion. Defense counsel did not file a response.

¶9 Johnson testified that he and Travis— then ages forty-five and forty-three, respectively—lived in adjacent bedrooms in the basement of their mother’s home in Havre. On the evening of Saturday, November 9, after Donna and Robert left to attend a family member’s birthday dinner, Travis and Johnson were sitting in the upstairs living room, drinking beer and watching television. Although there were no outstanding problems between them, Travis started saying insulting things about Johnson’s daughter. Johnson told Travis he was "stupid" and to cut it out. Travis did not say anything more, so Johnson thought that the issue had resolved.

¶10 Later, according to Johnson, Travis got up and unexpectedly "sucker punched" Johnson on the side of the head, knocking off his glasses. The brothers began to fight. Johnson testified that he kept trying to push Travis off of him, telling Travis not to hit him. Travis told Johnson he was "worthless"; Johnson told Travis to leave him alone. Johnson testified that "when [he] would get away from [Travis], [Travis] would come back at [him]."

¶11 Johnson testified that he headed downstairs. Travis followed, telling Johnson that he "was better off dead." Johnson said that Travis shoved him down the stairs, but Johnson caught himself and went to his room. Johnson laid down on his bed and "figured [the fight] was over." Shortly after Johnson laid down, Travis came into Johnson’s bedroom and retrieved a handgun that Johnson kept underneath his bed. Johnson asked Travis what he was doing, but Travis did not answer and took the gun across the hall to his bedroom. Johnson followed Travis because he "wanted to know [ ] what [Travis] plan[ned] on doing," explaining that it was "not like him to do something like this." Johnson testified that Travis had never grabbed a weapon in the past when he was mad. When defense counsel asked if Johnson was fearful at that point, Johnson replied, "I didn’t want [Travis] to do anything stupid," like "[s]hoot him or me. I didn’t know what was going to happen."

¶12 Johnson caught up with Travis in Travis’s bedroom and yelled at him to put the gun down "before somebody gets hurt." Travis said nothing but did not put the gun down. Again, Johnson emphasized this was out of character, stating, "That’s not him." Johnson got hold of the gun. The brothers ended up in the hallway. Johnson testified that he did not hear any gunshots go off; he knew Travis had been shot only when he fell to the floor.

¶13 After Travis fell, Johnson tried to talk to him, but Travis did not answer. Johnson "knew something was wrong" because he could not feel Travis’s pulse. Johnson testified that he picked the gun up and tossed it in his room. After Johnson checked Travis’s pulse again and tried to get Travis to move, Johnson testified, he "didn’t know what to do," so he laid down in his bedroom. Johnson said that the next thing he recollected was "[b]eing hollered at to put [his] hands in the air." Johnson said he felt his life was in danger "[t]he whole time." Johnson stated that Travis "owned guns in the past," but he "never saw him do anything like that "

¶14 After Johnson testified, the defense called Donna as a witness. Outside the presence of the jury, the State objected to the relevance of Donna’s testimony and asked the court to prohibit her from testifying about Travis’s prior acts. The court allowed Donna to testify When defense counsel asked Donna what was going on in Travis’s life and she began to discuss the final two months before his death, however, the court sustained the State’s relevance objection. Johnson’s counsel then asked Donna what was going on with Travis on the day of his death. Donna responded, "Travis was out of control." The State objected again, and the court struck Donna’s comment. Defense counsel asked Donna what she observed about Travis during her interactions with him on the day he died; Donna stated, "He was drunk and belligerent." Defense counsel then ended their direct exam and their case in chief shortly after.

Second Trial

¶15 Judge Matthew J. Cuffe presided on remand. At a pretrial conference before Johnson’s second trial, the prosecutor orally moved the court to rule that all of Judge Boucher’s orders and rulings prior to remand were the law of the case and binding on parties on retrial. Defense counsel stated they would need additional time to review the orders "before making a decision." The court then ruled:

The previous orders are in effect until challenged, or asked to be reconsidered, or anything like that. And so if there is an Order out there that no longer applies, or based on the remand

...