State v. Secrease

08/17/2021 DA 19-0588 Case Number: DA 19-0588 IN THE SUPREME COURT OF THE STATE OF MONTANA 2021 MT 212

STATE OF MONTANA, Plaintiff and Appellee FILED v. AUG 1 7 2021 Bowen Greenwood KACEY LEE SECREASE, Clerk of Supreme Court State of IVIontana Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. DDC-2018-135 Honorable James P. Reynolds, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Gregory Hood, Assistant Appellate Defender, Helena, Montana For Appellee:

Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana Leo Gallagher, Lewis and Clark County Attorney, Daniel Baris, Deputy County Attorney, Helena, Montana Submitted on Briefs: June 16, 2021 Decided: August 17, 2021

Filed:

Clerk Justice Ingrid Gustafson delivered the Opinion of the Court.

111 Defendant and Appellant Kasey Lee Secrease (Secrease) appeals from his jury trial

and the September 6, 2019 Judgment and Commitment issued by the First Judicial District

Court, Lewis and Clark County, following his convictions for felony driving under the

influence of alcohol and/or drugs(DUI)and misdemeanor obstructing a peace officer.

¶2 We address the following dispositive issue on appeal:

Whether Secrease received ineffective assistance ofcounsel when his counselfailed to object to an incorrectjury instruction which lowered the State's burden ofproof on the offense ofobstructing a peace officer.

We reverse and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 On the evening of February 17, 2018, Secrease was driving in Helena when he

turned without signaling, changed lanes without signaling, and signaled without changing

lanes. Behind him at the time was Montana Highway Patrol Trooper Charles Burton

(Trooper Burton), who activated his overhead lights to perform a traffic stop after

witnessing Secrease's driving behavior. After Secrease pulled over, Trooper Burton

approached the car, explained the reason for the stop, and began to speak with Secrease

and his passenger, Teancum Martin (Martin). Trooper Burton noticed the odor of burnt

rnarijuana coming from the car and that Secrease had bloodshot eyes and slurred speech.

Trooper Burton ultimately had Secrease exit the car to begin a DUI investigation and

noticed Secrease's pants were undone and the odor of alcohol on Secrease's breath.

Trooper Burton asked Secrease if he had been drinking, and Secrease adrnitted drinking 2 earlier in the day. Trooper Burton performed a pat-down search of Secrease and then

detained him in the back ofthe patrol car while he returned to Secrease's car to speak with

Martin. Martin had a nearly-empty beer can at his feet and admitted to smoking marijuana.

It was later discovered Martin had a warrant for his arrest out of Idaho.

Trooper Burton had Secrease exit the patrol car to perform field sobriety tests.

Secrease performed poorly on several of the field sobriety tests, so Trooper Burton asked

him to perform a preliminary breath test and informed him that, while he had the right to

refuse this test, his license would be suspended for six months if he refused. Secrease

refused to take the breath test. Trooper Burton placed Secrease under arrest for DUI, read

Secrease the implied consent advisory form (again noting Secrease's license would be

suspended for refusing the test), and requested Secrease submit to a blood test. Secrease

refused to submit to the blood test. Trooper Burton then applied for, and was granted, a

telephonic search warrant for Secrease's blood. Trooper Burton drove Secrease to

St.Peter's Hospital for the blood draw. At the hospital, Secrease again refused to provide

a blood sample. Trooper Burton reminded Secrease he had a warrant to obtain a blood

sample and could be handcuffed and/or held down to have his blood drawn. Secrease again

refused to have his blood drawn and hospital personnel told them to "get the hell out"

because they would not perform a blood draw under those circumstances. Trooper Burton

and Secrease left the hospital and no blood draw was performed. Secrease was ultimately

charged with felony DUI and misdemeanor obstructing a peace officer.

3 ¶6 The matter went to a three-day jury trial in April of2019. Secrease was represented

by three attorneys at trial—Greg Beebe, Brent Flowers, and Jack Morris. Secrease's

attorneys did not provide proposed jury instructions at trial, and did not object to the State's

instructions with the exception of asking the District Court to rernove references to "and/or

drugs" frorn the DUI jury instructions. The District Court removed such references and

gave the remainder of the State's jury instructions without objection from the defense.

Relevant to this proceeding, the District Court gave instructions relating to the obstruction

of a peace officer charge. Instruction No. 19 stated:

A person comrnits the offense of OBSTRUCTING A PEACE OFFICER if the person knowingly obstructs, impairs, or hinders the enforcement of the criminal law.

Instruction No. 20, in relevant part, stated the State must prove three elements to convict

Secrease of Obstructing a Peace Officer:

That the Defendant 1. obstructed, hindered or impaired;

2. the enforcement of the criminal law; AND 3. acted knowingly.

Instruction No. 21 stated:

As to Count II (Obstructing a Peace Officer), a person acts knowingly when the person is aware of his or her conduct.

During its deliberations, the jury asked three written questions. One related to voir

dire and another to the amount of alcohol needed to be considered "under the influence."

The final jury question—with the heading of"Obstruction Question"—asked,"ifthe blood 4 test & breath test are refused after a warrant is issued, is that obstructing, hindering or

impairing the law[?]" After discussing the jury's question with counsel for the State and

the defense, the District Court sent back a written response stating,"[y]ou are instructed to

refer to the instructions previously given."

The jury convicted Secrease of both DUI and obstructing a peace officer. The

District Court sentenced hirn to the Montana Department of Corrections for 13 months,

with a recommendation for Secrease to be placed in the WATCh program, followed by a

3-year suspended sentence, on the felony DUI and to 120 days at the Lewis and Clark

County Jail for obstructing a peace officer. Secrease appeals.

STANDARD OF REVIEW ¶9 We review the jury instructions given by a district court for an abuse of discretion.

State v. King, 2016 MT 323, ¶ 7 , 385 Mont. 483 , 385 P.3d 561 (citing State v. Lacey, 2012

MT 52, ¶ 15 , 364 Mont. 291 , 272 P.3d 1288 ). We review jury instructions in criminal

cases to deterrnine "whether the instructions, as a whole, fully and fairly instruct the jury

on the law applicable to the case." King, ¶ 7(quoting State v. Dunfee, 2005 MT 147, ¶ 20 , 327 Mont. 335 , 114 P.3d 217 ). Ineffective assistance of counsel claims are mixed

questions of law and fact which we review de novo. State v. Johnston, 2010 MT 152, ¶ 7 , 357 Mont. 46 , 237 P.3d 70 (citing State v. Kougl, 2004 MT 243 , ¶ 12, 323 Mont.6, 97 P.3d

1095 ).

5 DISCUSSION

¶10 Whether Secrease received ineffective assistance ofcounsel when his counselfailed to object to an incorrectjury instruction which lowered the State's burden ofproof on the offense ofobstructing a peace officer.

IP 1 As charged in this case, "[a] person commits the offense of obstructing a peace

officer . . . IT the person knowingly obstructs, irnpairs, or hinders the enforcement of the

criminal law[.]" Section 45-7-302(1), MCA. "Knowingly" is also defined in Montana's

criminal statutes:

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. When knowledge of the existence of a particular fact is an elernent of an offense, knowledge is established if a person is aware of a high probability of its existence. Equivalent terms, such as "knowing" or "with knowledge", have the same rneaning.

Section 45-2-101(35), MCA. Montana's statutory definition of"knowingly" contains both

a conduct-based and a result-based version, and "[j]uries are to be instructed on the mental

state pertinent to the crirne charged." State v. Ilk, 2018 MT 186,1118 , 392 Mont. 201 , 422

P.3d 1219 (collecting cases); see also State v. Azure, 2005 MT 328, ¶ 20 , 329 Mont. 536 , 125 P.3d 1116 ("When 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.").

¶12 In this case, the District Court, without objection from counsel for Secrease,

instructed the jury that "a person acts knowingly when the person is aware of his or her 6 conduct" in Instruction No. 21. On appeal, Secrease asserts this instruction was in error as

the District Court instructed the jury on the conduct-based definition of"knowingly," rather

than the results-based one. We have previously acknowledged that, for the purposes of

instructing the jury on a charge of obstructing a peace officer, the results-based

"knowingly" instruction should be given. See Johnston, ¶¶ 12, 14; see also City of

Kalispell v. Cameron, 2002 MT 78, ¶ 11 , 309 Mont. 248 , 46 P.3d 46 (noting that to convict

a defendant of obstructing a peace officer, the defendant must be "aware that his conduct

would hinder the execution of the Officers' duties"). Secrease concedes his trial counsel

did not object to Instruction No. 21 at trial and therefore asks us to review the issue under

either plain error review or pursuant to his claim of ineffective assistance of counsel. The

State, while acknowledging the District Court gave the wrong "knowingly" instruction,

contends the matter is not appropriate for plain error review and that Secrease cannot meet

his heavy burden to show ineffective assistance of counsel on direct appeal.

¶13 "Article II, Section 24 ofthe Montana Constitution and the Sixth Amendment to the

United States Constitution, as incorporated through the Fourteenth Amendment, guarantee

a defendant the right to effective assistance of counsel." State v. Santoro, 2019 MT 192,

¶ 14 , 397 Mont. 19 , 446 P.3d 1141 (citing Kougl, ¶ 11). In assessing ineffective assistance

of counsel claims, we apply the two-pronged test set forth in Strickland v. Washington, 466

U.S. 668 , 104 S. Ct. 2052 (1984). Kougl, ¶ 11. Under the Strickland test, the defendant

must(1) demonstrate that "counsel's performance was deficient or fell below an objective

standard of reasonableness" and (2)"establish prejudice by demonstrating that there was a 7 reasonable probability that, but for counsel's errors, the result of the proceedings would

have been different." Kougl, ¶ 11 (quoting State v. Turnsplenty, 2003 MT 159, ¶ 14 , 316

Mont. 275 , 70 P.3d 1234 ).

¶14 When a defendant raises ineffective assistance of counsel claims on direct appeal,

we must first determine whether the claims are more appropriately addressed in a

postconviction relief proceeding. State v. Rodriguez, 2021 MT 65, ¶ 31 , 403 Mont. 360 , 483 P.3d 1080 (citing Santoro, ¶ 16). Ineffective assistance of counsel claims are

appropriate for review on direct appeal when "no plausible justification" exists for the

actions or omissions of defense counsel. Kougl, ¶ 15 (citing State v. Jefferson, 2003 MT

90, ¶ 50 , 315 Mont. 146 , 69 P.3d 641 ).

1115 Here, as we did in Johnston, we conclude there is no plausible justification for the

failure of Secrease's counsel to seek the correct "knowingly" jury instruction on the

obstructing a peace officer charge and this matter is appropriate for review on direct appeal.

Johnston, ¶ 16 (citing Kougl, ¶ 21). By instructing the jury that Secrease only need to be

aware of his conduct—that he was refusing the blood test—rather than properly instructing

them that Secrease needed to be aware of the result of his conduct—that refusing the blood

test after Trooper Burton had obtained a search warrant was obstructing, hindering, or

impairing the enforcement of the criminal law—the State's burden in proving the crime

was reduced. See Johnston, ¶ 16. Counsel's representation was therefore deficient.

¶16 The State argues that, even if he can prove his counsel was deficient for not asking

for the correct "knowingly" instruction, Secrease cannot prove he suffered the prejudice 8 prong of the Strickland test. In support of this assertion, the State argues the State itself

gave the correct burden in its own closing argument when the prosecutor told the jury:

It's the very next instruction, instruction 21 which says as to count two, obstructing a peace officer. A person acts knowingly when a person is aware of his or her conduct, right. So he had to obstruct, hinder or impair the enforcement of criminal law and basically know that what he was doing was doing that, he was likely to be doing that, okay.

We have previously rejected the argument that the closing argument of a party can

substitute for proper jury instructions, and we reject that argument once again here. It is

the duty of the court to instruct the jury on the law, and that duty cannot be delegated to

counsel. Kougl, ¶ 26 (citations ornitted). "Closing arguments are not evidence, neither do

they substitute for proper jury instructionsH" Kougl, ¶ 26 (quoting United States v.

Pedigo, 12 F.3d 618,626 (7th Cir. 1993)). Though in this case the State rnay have correctly

told the jury Secrease needed to know that refusing the blood test was hindering the

enforcernent ofthe law, that "is not the same as hearing it frorn the court. This is especially

true when it cornes in the form of written jury instructions that the jury rnay read, reread,

and reflect on while in deliberation." Kougl, ¶ 26. Further, the jury's question in this case

showed confusion on the results-based nature of the obstruction charge and, in response to

that confusion, they were referred back to the incorrect conduct-based instruction by the

District Court. Counsel's deficient representation in this case prejudiced Secrease's case

"such that there is a reasonable probability [the jury] would have arrived at a different

outcome." Johnston, ¶ 16 (quoting Kougl, ¶ 26). As such, Secrease's obstruction of a 9 peace officer conviction must be reversed and remanded to the District Court for a new

trial. See Johnston, TT 16-17.

¶17 As we have determined Secrease was prejudiced by ineffective assistance ofcounsel

at trial, it is unnecessary to address his alternative claim regarding the incorrect jury

instruction under plain error review.

CONCLUSION

¶18 Secrease received ineffective assistance ofcounsel at trial when his attorneys neither

objected to the incorrect "knowingly" instruction nor proposed the correct one themselves.

Secrease was prejudiced by the deficient performance of his counsel and a new trial is

warranted.

¶19 Reversed and remanded for a new trial.

Justice

We concur:

Chief Justice Justices 10