01/31/2023
DA 21-0510 Case Number: DA 21-0510
IN THE SUPREME COURT OF THE STATE OF MONTANA 2023 MT 20N
CODY WAYNE JOHNSTON,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Richland, Cause No. DV-18-185 Honorable Elizabeth A. Best, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joseph P. Howard, Joseph P. Howard, P.C., Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana
Janet Christoffersen, Richland County Attorney, Sidney, Montana
Submitted on Briefs: September 14, 2022
Decided: January 31, 2023
Filed:
__________________________________________ Clerk Justice Dirk Sandefur delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, we decide this case by memorandum opinion. It shall not be cited and does not
serve as precedent. The case title, cause number, and disposition will be included in our
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Cody Wayne Johnston appeals from the August 2021 judgment of the Montana
Seventh Judicial District Court, Richland County, denying his petition for postconviction
relief (PCR) from his 2017 judgment of conviction on jury trial on the offenses of
Deliberate Homicide and Tampering with Physical Evidence. We affirm.
¶3 In August 2015, the State charged Johnston with Deliberate Homicide and related
Evidence Tampering regarding the death of Nicole Waller. Prior to 2013, Waller and
Johnston were engaged in a tumultuous on-again, off-again relationship which culminated
in early 2013 with him telling her to leave his home in Fairview, Montana, and return to
her home in Kalispell, Montana.1 On the morning of February 14, 2013, after Waller
purportedly left Fairview to return to Kalispell, she mysteriously disappeared, never to be
heard from again. Her body was never found. However, her vehicle, packed with her
belongings and two pet guinea pigs, remained parked on the driveway outside Johnston’s
Fairview home that morning until he later drove it away and left it on the side of U.S.
1 With a $10,000 contribution from Waller, Johnston had previously purchased and titled in his own name a double-wide mobile home for Waller and her children in Kalispell, subject to her agreement to repay him the balance of the purchase price, a debt still outstanding as of February 14, 2013.
2 Highway 2 near Poplar, Montana. A trailing friend then picked Johnston up and drove him
back to Fairview. The friend later told police, and then testified at trial, that Johnston asked
him for and was trying to find an empty 55-gallon barrel with a locking lid that morning,
purportedly because he needed it for his work as a mechanic. Several days later, law
enforcement found Waller’s abandoned vehicle on the highway near Poplar. Upon further
investigation, the State charged Johnston with Deliberate Homicide and Evidence
Tampering, and the case proceeded to jury trial in October 2016. Two co-counsel assigned
by the Montana Office of the State Public Defender represented Johnston at trial.
¶4 On the final day of trial, the State prosecutor made closing and rebuttal arguments
which, inter alia, were replete with various comments and statements of personal opinion
regarding: (1) Johnston’s character; (2) the veracity and/or credibility of his pretrial
statements and trial testimony regarding pertinent events; and (3) the strength of the State’s
evidence and Johnston’s resulting guilt. At least seven times, the prosecutor prefaced
statements with the phrase “I think” (e.g., “I . . . think it’s obvious that . . . Nicole Waller
is dead,” “I found heart wrenching” Johnston’s enjoyment of the fact that he locked Waller
out of her Kalispell home after telling her to leave his Fairview home, and “I think [it’s]
obvious” that Johnston’s acknowledged attempt(s) to deceive law enforcement about what
happened was him operating in “survival mode”). The prosecutor asserted that Johnston
“lied” in various regards and similarly characterized other of his testimonial assertions as
“ridiculous,” “crazy,” and “[n]ot credible.” In regard to the relative credibility of
conflicting testimony regarding Johnston’s stated need for a locking 55-gallon barrel the
3 morning Waller disappeared, the prosecutor commented, inter alia, “I think it’s simple”
and “I think it’s easy” to recognize that Johnston “has lied and lied and lied throughout this
trial,” in contrast to his friend “who raised his hand under oath.” He similarly characterized
Johnston’s explanation regarding his asserted need for a locking barrel as “ridiculous,” and
then stated, “I know what that barrel was for,” his friend knew what it was for, and “you
should know what that barrel was for as well.” The prosecutor similarly remarked that, “I
found it a little unusual” that Johnston “told law enforcement . . . that he turned off
[Waller’s] phone” that morning “because she kept bothering and hassling him with calls.”
(Emphasis added.)
¶5 In reference to testimony regarding Johnston’s prior mistreatment of Waller, the
prosecutor commented on Johnston’s character and appealed to the emotions of the jurors
by rhetorically asking “[w]ho treats a person like that,” “[w]ho lies to a person like that,”
“what kind of man does that,” and “what does that tell you about [Johnston’s] character?”
In regard to Johnston’s enjoyment of the fact that he locked Waller out of her Kalispell
home, the prosecutor similarly exclaimed, “[w]ow[,] [n]ice guy.” After further discussing
the evidence, the prosecutor answered his earlier rhetorical questions by stating, “I think
that, again, tells us reams about who [Johnston] is.” Referring to the fact that Johnston
“couldn’t wait a week” after Waller disappeared before clearing her belongings from her
Kalispell home, and his failure to check with her family to see if they wanted any of them,
the prosecutor again rhetorically asked, “what does that tell you . . . about his character?”
4 ¶6 In acknowledging that the State did not know the manner in which Johnston killed
Waller, the prosecutor pointed out that, “[w]e don’t know, because he hid the body.” He
then described Waller’s missing body as “now rest[ing] in some dirty and disrespectful
location, hidden by [Johnston]”—“[u]nfortunately, only [he] knows the answers to” where
her body was and how she was killed. The prosecutor ultimately asserted, inter alia, that
“I believe” the “tight timeline” shown by the State’s evidence “proves [] that only
[Johnston] had the motive, . . . opportunity, and . . . means to kill Nicole Waller.”
Johnston’s counsel did not object to any of those and similar prosecutor assertions,
comments, and questions.
¶7 Upon deliberation, the jury returned guilty verdicts on both of the charged offenses.
The District Court later sentenced Johnston to life in prison for Deliberate Homicide, and
an additional 10 years for Evidence Tampering. On Johnston’s subsequent direct appeal
of only two narrow sentencing-related assertions of error, we affirmed. State v. Johnston,
2018 MT 256N, ¶¶ 10-11, 394 Mont. 387, 428 P.3d 253.
¶8 In November 2018, Johnston filed a pro se PCR petition pursuant to §§ 46-21-
101(1) and -103, MCA. He also filed several related pro se motions. Through
later-obtained counsel, he then filed an amended PCR petition in August 2020. The District
Court characterized his asserted PCR claims as assertions that: (1) he received ineffective
assistance of counsel (IAC) in various regards at trial; (2) the trial evidence was insufficient
to support his convictions on the charged offenses; (3) the State’s failure to present at trial
certain previously-disclosed evidence denied him constitutionally guaranteed due process
5 of law under Brady v. Maryland, 373 U.S. 83, 87-88, 83 S. Ct. 1194, 1196-97 (1963); and
(4) certain newly-discovered evidence—the alleged exculpatory affidavit statements of an
alleged former coworker—proved that he was actually innocent of the charged offenses.
¶9 On motion and resulting court order, the State obtained explanatory affidavits from
both of Johnston’s trial counsel regarding his asserted IAC claims.2 At the subsequent
August 2021 hearing on Johnston’s asserted PCR claims, only one witness testified—one
of his former trial counsel who gave supplemental testimony consistent with his prior
Gillham affidavit. At the close of hearing, the District Court orally denied all of Johnston’s
asserted PCR claims, later followed by a conforming written judgment.
¶10 Johnston timely appeals the court’s adverse ruling on his IAC assertions regarding
trial counsel failure to object to the prosecutor’s various assertions and comments regarding
his character, the veracity and credibility of his pretrial statements and trial testimony, his
failure to disclose the location of Waller’s body and how he killed her, the strength of the
State’s evidence, and Johnston’s resulting guilt. On appeal of district court denials of PCR
claims, we review supporting findings of fact only for clear error3 and supporting
conclusions and applications of law de novo for correctness. Beach v. State, 2009 MT 398,
2 See Marble v. State, 2007 MT 98, ¶¶ 2-4, 337 Mont. 99, 169 P.3d 1148, and In re Gillham, 216 Mont. 279, 280-82, 704 P.2d 1019, 1020-21 (1985). 3 Lower court findings of fact are clearly erroneous only if not supported by substantial evidence, the record manifests that the lower court clearly misapprehended the effect of the evidence, or we are firmly convinced on our independent review of the record that the lower court was otherwise clearly mistaken. State v. Warclub, 2005 MT 149, ¶ 23, 327 Mont. 352, 114 P.3d 254 (citation omitted).
6 ¶ 14, 353 Mont. 411, 220 P.3d 667; Hirt v. State, 2009 MT 116, ¶ 24, 350 Mont. 162, 206
P.3d 908; Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861.
¶11 The Sixth Amendment to the United States Constitution, as applied to the States
through the Fourteenth Amendment, and Article II, Section 24, of the Montana
Constitution, guarantee criminal defendants the right to effective assistance of counsel at
all critical stages of the proceedings. Whitlow, ¶ 10; State v. McElveen, 168 Mont. 500,
501-03, 544 P.2d 820, 821-22 (1975); Strickland v. Washington, 466 U.S. 668, 684-86, 104
S. Ct. 2052, 2063 (1984). The performance of counsel is constitutionally ineffective,
however, only if both constitutionally deficient and actually prejudicial. State v. Herrman,
2003 MT 149, ¶ 17, 316 Mont. 198, 70 P.3d 738; Strickland, 466 U.S. at 685-87, 104 S. Ct.
at 2063-64. A claimant must satisfy both of the required elements of an IAC claim. Sartain
v. State, 2012 MT 164, ¶¶ 9 and 11, 365 Mont. 483, 285 P.3d 407; Whitlow, ¶¶ 10-14.
¶12 Under the first element, the performance of counsel is presumed constitutionally
effective based on discretionary trial strategy within a broad range of reasonable
professional conduct. Whitlow, ¶¶ 20-21; Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
To overcome that strong presumption, an IAC claimant has the “heavy burden” of
affirmatively proving that the alleged IAC, viewed in the light most deferential to counsel,
“fell below an objective standard of reasonableness considering prevailing professional
norms” under the totality of the circumstances at issue, regardless of best or customary
practice. Ariegwe v. State, 2012 MT 166, ¶ 16, 365 Mont. 505, 285 P.3d 424 (quoting
M.M. Miller v. State, 2012 MT 131, ¶ 13, 365 Mont. 264, 280 P.3d 272); Bomar v. State,
7 2012 MT 163, ¶ 19, 365 Mont. 474, 285 P.3d 396; Worthan v. State, 2010 MT 98, ¶ 10,
356 Mont. 206, 232 P.3d 380 (citing Whitlow, ¶ 15); Whitlow, ¶¶ 20-21; Strickland, 466
U.S. at 689, 104 S. Ct. at 2065. Success is not the measure of effective counsel. Bomar,
¶ 19. Nor does effective assistance of counsel require “perfect advocacy judged with the
benefit of hindsight.” Bomar, ¶ 19 (quoting Yarborough v. Gentry, 540 U.S. 1, 8, 124
S. Ct. 1, 6 (2003)). An accused has no constitutional right to have counsel “raise every
non-frivolous issue” in his or her defense. See M.M. Miller, ¶ 14 (internal citation omitted).
The mere fact that defense counsel failed to assert a particular available defense, or take an
available defensive action, is generally insufficient alone to establish that his or her
performance was ineffective or deficient. See State v. Mahoney, 264 Mont. 89, 101-02,
870 P.2d 65, 73 (1994). Decisions as to whether and to what extent to object to
questionable rulings or prosecutorial conduct generally fall within the broad range of the
professional judgment and discretion of counsel regarding defense strategy and tactics. See
Whitlow, ¶ 21; State v. Upshaw, 2006 MT 341, ¶ 33, 335 Mont. 162, 153 P.3d 579.
¶13 Under the second IAC element, a deficient performance of counsel was prejudicial
only upon proof that a reasonable probability exists that the outcome of the proceeding
would have been different but for the deficient performance. Ariegwe, ¶¶ 15-16; Heath v.
State, 2009 MT 7, ¶ 17, 348 Mont. 361, 202 P.3d 118; Strickland, 466 U.S. at 694-95, 104
S. Ct. at 2068-69. In this context, a “reasonable probability is a probability sufficient to
undermine confidence in the outcome” of the proceeding. State v. Cobell, 2004 MT 46,
¶ 14, 320 Mont. 122, 86 P.3d 20. The mere fact that a deficient performance may have
8 “had some conceivable effect on the outcome of the proceeding” is insufficient to prove
actual prejudice. Strickland, 466 U.S. at 693, 104 S. Ct. at 2067.
¶14 As pertinent here, criminal prosecutors generally “have wide latitude” during trial
closing and rebuttal arguments to “comment on and argue for any position or conclusion
regarding the nature, quality, or effect of the evidence in relation to the applicable law and
the [State’s] burden of proof,” but only if and to the extent “based on the [record] evidence,
applicable law as stated in the jury instructions, and his or her analysis of the evidence.”
State v. B.H. Miller, 2022 MT 92, ¶ 22, 408 Mont. 316, 510 P.3d 17 (emphasis original—
internal punctuation and citations omitted). On the other hand, “[a]s applicable to the
States as a matter of substantive due process implicit in the Fourteenth Amendment Due
Process Clause, the Sixth Amendment to the United States Constitution, and Article II,
Sections 24 and 26, of the Montana Constitution, similarly guarantee criminal defendants
the right to a fair trial before an impartial jury.” B.H. Miller, ¶ 21 (internal citations
omitted). “Also implicitly guaranteed to the criminally accused as fundamental liberty
interests under the Fourteenth Amendment Due Process Clause are the related rights to the
presumption of innocence and the requirement that the government prove every element of
a charged offense beyond a reasonable doubt.” B.H. Miller, ¶ 21 (internal citations
omitted). In conjunction with other fair trial rights, criminal defendants also have a federal
and state constitutional right against compelled self-incrimination. U.S. Const. amends. V
and XIV; Mont. Const. art. II, § 25. Those fundamental constitutional fair trial and
associated rights thus “impose or implicate a number of highly nuanced restrictions on the
9 otherwise broad latitude that prosecutors have” regarding jury argument at trial. B.H.
Miller, ¶ 22. Further constraining prosecutors’ generally wide latitude are applicable rules
of evidence, and the separate statutory command that “the jury is the exclusive judge of the
credibility, veracity, weight, and effect of the evidence.” B.H. Miller, ¶¶ 22 and 24 (citing
§§ 26-1-201 through -203, MCA). Thus, as pertinent here, prosecutors generally may not:
(1) “express a direct personal opinion or belief that a witness, or his or her testimony, was
or was not credible, believable, reliable, or truthful”; (2) “personally vouch for the veracity
or credibility of a witness or his or her testimony”; (3) “directly characterize a witness
statement as a lie, or a witness or the accused as a liar or as having lied”; (4) “express a
direct personal opinion or belief that the accused is guilty or the one who committed the
charged offense”; or (5) “directly, indirectly, or implicitly assert or suggest that the accused
has the burden of proving his or her innocence, or of disproving the [S]tate’s evidence.”
B.H. Miller, ¶¶ 23-24 and 28-29 (citations omitted).
¶15 On balance then, “in contrast to a statement of or akin to a direct personal opinion,
prosecutorial closing arguments and comments are generally proper if made in the context
of discussing the evidence, how it relates or corresponds to the law as stated in the jury
instructions (including specified witness veracity and credibility assessment guidelines),
and reasonable inferences supported by the evidence.” B.H. Miller, ¶ 26 (emphasis
omitted). “While expression of direct personal opinions on witness credibility are
improper, the prosecutor may nonetheless comment on, suggest, point-out, and argue
reasonable inferences that [the] jury may draw from the evidence including, inter alia,
10 comment on the credibility of witnesses as a comment on the evidence based on conflicts
and contradictions in testimony.” B.H. Miller, ¶ 27 (internal punctuation and citations
omitted). Prosecutors “may similarly argue on the evidence that the accused is guilty,
committed the crime, or that the [S]tate has met its burden of proof,” and comment on “the
volume” of the incriminating evidence against the accused. B.H. Miller, ¶¶ 26-27
(emphasis original—citations omitted). The prosecutors may also “properly point out
inconsistencies between the defendant’s trial testimony and any pretrial statements or
pre-Miranda silence to support an inference and argument that he [or she] changed his [or
her] story after having time to think about the consequences.” B.H. Miller, ¶ 30 (internal
punctuation and citations omitted). They may similarly ask and argue as to which of
multiple accounts provided by the defendant was the truth. B.H. Miller, ¶ 30 (internal
citations omitted).
[W]hile often highly nuanced, the dividing line between an improper and proper prosecutorial argument or comment regarding witness credibility or truthfulness or the guilt of the accused is whether, in the context of the entirety of the particular opening statement or closing argument at issue, the argument or comment is more akin to a statement of the prosecutor’s personal opinion or direct characterization of the accused or a witness as “lying” or a “liar” (or his or her testimony as a “lie”), or rather, an argument or comment based on the prosecutor’s analysis of the evidence regarding the nature, quality, or effect of the evidence and supported inferences in relation to the applicable law.
B.H. Miller, ¶ 27 (emphasis original—citations omitted).
¶16 Improper prosecutorial arguments and comments “that substantially undermine or
infringe upon” an accused’s fair trial rights and related constraints “are remediable by
reversal of conviction if substantially prejudicial to the accused under the totality of the
11 circumstances in each case.” B.H. Miller, ¶ 21 (emphasis added—citations omitted). But,
substantial prejudice from such misconduct is not presumed. B.H. Miller, ¶ 36. Reversal
is warranted only upon “an affirmative record-based showing” that the misconduct
“actually prejudiced” the accused’s “right to a fair trial under the totality of the
circumstances,” including, inter alia, consideration of the misconduct in context of the
balance of the prosecutor’s arguments and comments as a whole. B.H. Miller, ¶ 36.
¶17 As recognized by the District Court here, the large majority of the prosecutor
statements and comments at issue clearly or arguably infringed, or were precariously close
to infringing, on one or more of Johnston’s aforementioned fair trial rights. Many of the
prosecutor’s accompanying rhetorical comments regarding Johnston’s character were also
separately objectionable in the manifest absence of any defense-proffered good character
evidence or other asserted character rebuttal predicate. See M. R. Evid. 401-03, 404(a)(1),
(c), and 608. However, the respective affidavit and hearing testimonies of Johnston’s
co-counsel clearly manifest that they knowingly and intelligently made strategic or tactical
decisions to not object because they thought the prosecutor’s often “histrionic” arguments
and comments were consistent with the defense theory of the case, not consistent with the
defense theory but nonetheless ineffective and thus likely to undermine the credibility of
the State’s theory of the case, or close enough in context to permissible argument that the
court would not likely sustain an objection. In essence and effect, the District Court thus
found and concluded that Johnston failed to overcome the presumption that the
performance of his co-counsel was constitutionally effective with affirmative proof that
12 their failure to object to the prosecutorial conduct at issue clearly fell below an objective
standard of reasonableness, as measured by prevailing professional norms of strategy and
practice, under the totality of the circumstances of this case.
¶18 Upon our review, the pertinent findings of the District Court were not clearly
erroneous, nor was its ultimate conclusion under the first IAC element based on any
incorrect application or conclusion of law. In light of the independently compelling record
evidence of his guilt, and his own trial admissions and related characterizations by defense
counsel, Johnston has further failed show that counsels’ failure to object to the
prosecutorial conduct at issue was actually prejudicial under the totality of the
circumstances in this case. We hold that the District Court did not erroneously deny PCR
to Johnston based on his asserted IAC claims at issue on appeal.
¶19 We decide this case by memorandum opinion pursuant to our Internal Operating
Rules. It shall not be cited and does not serve as precedent. Affirmed.
/S/ DIRK M. SANDEFUR
We concur:
/S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ JIM RICE