State v. J. Black

2021 MT 165N

Opinion

07/06/2021

DA 19-0157 Case Number: DA 19-0157 IN THE SUPREME COURT OF THE STATE OF MONTANA

2021 MT 165N

STATE OF MONTANA,

Plaintiff and Appellee, FILED JUL 0 6 2021 v. Bowen Greenwood Clerk of Supreme Court State of Montana JACQUELINE BLACK,

Defendant and Appellant.

APPEAL FROM: District Court of the Third Judicial District, In and For the County of Powell, Cause No. DC-16-58 Honorable Ray J. Dayton, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Ryan P. Archibald, Bitterroot Law,PLLC, Hamilton, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana

Kathryn McEnery, Powell County Attorney, Deer Lodge, Montana

Submitted on Briefs: March 3, 2021

Decided: July 6, 2021

Filed:

Clerk Chief Justice Mike McGrath delivered the Opinion ofthe Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, 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 Jacqueline Black appeals from her conviction by a jury ofthe offense of conspiracy

to commit transferring illegal articles, a felony pursuant to §§ 45-4-102 and 45-7-307,

MCA. We affirm.

¶3 Black was charged with attempting to transport illegal articles into Montana State

Prison(MSP)along with two co-conspirators. Between February and March 2014, Black

communicated over 30 times with Terry Lloyd Cowan (Cowan), an inmate at MSP, often

discussing Suboxone and its transport into MSP. On March 6, 2014, Cowan received a

package with what was later identified by the crime lab as Buprenorphine/Naloxene,

cornmonly known as Suboxone, a dangerous drug pursuant to § 50-32-226(2)(g), MCA.

On March 9, 2014, Black attempted to visit Cowan but was not permitted entrance. Black

was subsequently charged.

¶4 Previously Black had been on probation for other charges, and on October 16,2017,

the parties signed a stipulation agreeing not to discuss Black's prior bad acts at trial. The

District Court ordered that the parties refrain entirely from presenting any evidence on

2 "[a]ny wrongful act, allegation of rnisconduct, warrant, arrest, charge, or conviction of

[Black] for which she is not charged in this case."

¶5 On June 4,2018,the State filed a trial brief which included its exhibit list. The State

planned to introduce as evidence the visitor log that Black signed when she atternpted to

visit MSP. The log listed Black's prior felony conviction, and the State offered to redact

that portion. The State asserted "Defendant has not indicated it wishes any of the

evidence — including the recorded phone calls — redacted, and the State intends on playing

them in their entirety." Defense counsel did not respond.

¶6 In a pretrial conference, the District Court discussed the audio recordings and

possible prejudice to Black. The court stated,"We have a stipulation. We're not going to

hear about any other convictions or anything else. We've agreed to that, right?" The State

responded,

[Your] honor there is reference to it in these audio recordings as I've uh, restated in the Pre-Trial Conference um, however, I've done my best to um, mitigate that in the timefrarnes I'm intending on playing. Um, it doesn't specifically list uh, what Ms. Black was in custody for in-- under probation for I think is actually the um, phrase.

The State also responded that it had redacted Black's felony reference on the visitor log for

MSP. Defense counsel stated that he knew what the audio tapes contained and had no

objections to what the State was going to play for the jury regarding Black.

¶7 In opening statements, the State explained that Cowan and Justin Basaraba

(Basaraba) conspired with Black to transport drugs into MSP. The State told the jury that

Cowan and Basaraba would both be witnesses at trial. Basaraba agreed to testify for the

State in exchange for dismissal ofthe charge he faced as a co-conspirator. Cowan was still

3 in prison and initially agreed to testify for the State. The State advised the jury to pay close

attention to the derneanor of the co-conspirators and consider their motivations in

testifying. The evidentiary basis for conviction, the State explained, would be based on

the contents of recorded phone calls and Black's visits to the prison. Defense counsel

explained that the package Cowan received with Suboxone had a return address to Kelly

Clarkson, and that Cowan and Black were friends but that Basaraba never met Black.

¶8 Once he was on the stand, Cowan stated that he was advised by an attorney not to

testify and he therefore refused to testify. Basaraba testified that he and Cowan were

cellmates at MSP,and while there, Cowan taught him how to transport Suboxone by mail.

Basaraba testified about the method that Cowan taught him and explained,"No unglue the

bottorn flap of a manila mailing envelope and re-glue it with the Suboxone strips in there

and then send it in." Cowan also told Basaraba about his friend Black. Basaraba testified

that Cowan referred to Black as both "Jackie" and "Jacqueline."

¶9 Once Basaraba was released from MSP, Cowan called him to request he assist in

transporting Suboxone into MSP. Cowan wanted Basaraba to explain to Black how to

transport Suboxone by mail. Cowan communicated this to Black on a recorded line many

thnes, including asking her repeatedly to contact Basaraba for instructions. Basaraba

subsequently spoke with a person who identified herself as Black and relayed the

instructions from Cowan on how to transport Suboxone. On cross-examination Basaraba

said that he did not know whether the person he spoke to on the phone was Black, or just

someone using her name as he had never met her in person. He also explained that on the

recorded calls with Cowan, Cowan called Suboxone "strippers".

4 ¶10 The State presented the audio recordings of Black speaking with Cowan as well as

recordings of Cowan speaking with Basaraba. Cowan and Basaraba spoke about

Suboxone, although as Basaraba testified, Cowan often referred to Suboxone as

"strippers." They discussed planning to transport Suboxone into MSP. In the recording of

the initial call the State presented, Basaraba did not understand what Cowan was asking

him to do when he referred to "strippers," but Cowan explained by describing the

"strippers" they had in Shelby on one occasion. Basaraba then recognized what Cowan

was speaking about and mentioned that the "strippers" had "beading patterns." At that

point Basaraba agreed to explain to Black how to "get it all ready," referring to sending

Suboxone.

¶11 Basaraba and Black did not connect for some time and Cowan called Basaraba

repeatedly to ask whether he had spoken with Black. Eventually Basaraba and Black

connected, and Cowan confirmed by thanking him for "telling [Black] how to do that."

Basaraba told Cowan that it was no problem and asked if it worked out all right. Cowan

responded happily with laughter.

¶12 The recordings confirm that Cowan asked Black to contact Basaraba. Initially Black

did not understand what Cowan was asking her to do, and Cowan assured her that once she

received the letter he had sent and after she spoke to Basaraba she would understand.

Cowan grew increasingly agitated that Black had not reached out to Basaraba. Cowan and

Black also discussed Black's recent probation and related treatment. Defense counsel did

not object to the admission of any of the recordings at trial.

5 ¶13 Testimony from an investigator and a mailroom supervisor from MSP corroborated

that Suboxone was sent to Cowan, that Black visited Cowan twice, and that Black and

Cowan spoke on the phone over 30 tirnes.

¶14 In closing arguments, defense counsel argued that the State did not provide evidence

to prove that Black was actually the one who sent the envelope with Suboxone to Cowan.

The State did not check for DNA on the envelope, nor did they analyze the handwriting,

and the return address on the envelope said it came from Cowan's sister's house. At the

conclusion ofthe trial, the State presented the Court with over 20 proposed jury instructions

including one that stated that Cowan was Black's co-conspirator and was charged for that

crime. Defense counsel did not object to that instruction and declined to present any jury

instructions.

¶15 Black argues on appeal that the State committed prosecutorial rnisconduct by

presenting evidence of her prior bad acts at trial after stipulating not to do so.

Section 46-20 104(2), MCA, bars review of alleged errors not objected to at trial. Thus,

we decline to review the claim here.

¶16 Black argues further that her counsel was ineffective because he failed to present

the jury instructions that he was obligated to present regarding co-conspirator testimony.

¶17 Section 26-1-303(4), MCA,requires that "the jury is to be instructed by the court

on all proper occasions that . . . the testimony of a person legally accountable for the acts

of the accused ought to be viewed with distrust." State v. Kougl, 2004 MT 243, ¶ 20, 323

Mont. 6,97 P.3d 1095; State v. Rose, 1998 MT 342, 292 Mont. 350,972 P.2d 321.

6 ¶18 Moreover, a co-conspirator's testimony rnust be corroborated with other evidence

pursuant to § 46-16-213, MCA,which states:

A person may not be found guilty of an offense on the testimony of one responsible or legally accountable for the same offense, as defined in 45-2-301, unless the testimony is corroborated by other evidence that in itself without the aid ofthe testimony ofthe one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense.

If counsel requests jury instructions that are required by statute, the district court is

obligated to grant the request. Kougl,¶17;Rose,¶ 18;see also § 26-1-303, MCA. Counsel

can be found ineffective when they fail to ask the jury to be instructed to view a

legally-accountable person's testimony with suspicion when they have no plausible

justification not to do so. Kougl, ¶ 17 (citing Rose, ¶ 20).

¶19 In Kougl, we held that where the parties agreed that the defendant had accomplices,

their status was not in dispute, and therefore they were accomplices as a matter of law.

Kougl, ¶ 20(citing State v. Johnson, 276 Mont. 447, 451-53,918 P.2d 293, 295-96(1996).

"By failing to ask the court to tell the jurors that the law demands they view the

accomplices' testimony with distrust, trial counsel failed to use the law to strike at the heart

of the State's case." Kougl, ¶ 20. On the other hand, if the jury instruction would conflict

with a defense presented, it could be tactical not to present a jury instruction about

accomplice testimony. State v. Johnson, 257 Mont. 163, 163, 848 P.2d 499, 498 (1996),

overruled by City ofHelena v. Franforter, 2018 MT 193, 392 Mont. 277,423 P.3d 581.

¶20 The right to effective assistance of counsel is guaranteed by the Sixth Amendment

to the United States Constitution, as incorporated through the Fourteenth Amendment and

7 by Article II, Section 24, of the Montana Constitution. We use a two-prong test in

evaluating ineffective assistance of counsel claims. Heath v. State, 2009 MT 7, ¶ 17, 348

Mont. 361,202 P.3d 118; Strickland v. Washington,466 U.S. 668, 104 S. Ct. 2052(1984).

Under the Strickland test, a party must establish that their attorney was deficient, and that

the attorney's deficient performance was prejudicial and deprived the party of a fair trial.

Heath, ¶ 17; Dawson v. State, 2000 MT 219, ¶ 20, 301 Mont. 135, 10 P.3d 49. The

defendant must show that there is a reasonable possibility that without counsel's

unprofessional errors, the result of the proceeding would have been different. Heath, ¶ 17

(citations omitted).

¶21 Generally, we start by asking why counsel did or did not perform as alleged and

then refer to the record to answer this question. Kougl, ¶ 14(citation omitted). Sometimes

it is unnecessary to ask why because there is no plausible justification for what counsel did.

Kougl, ¶ 15.

¶22 Here, the State's case did rely significantly on the fact that both Cowan and

Basaraba communicated with Black about gathering drugs and transporting them into

MSP. Cowan orchestrated the transport and Basaraba was key in teaching Black how to

send the Suboxone. Basaraba's testimony was a niajor component ofthe State's evidence

linking Black to the conspiracy and confirmed that Cowan asked Basaraba to teach Black

how to mail Suboxone to Cowan in MSP and that Basaraba did so. But when Cowan

refused to testify, Basaraba's testiniony was the only testimony linking Black to the

conspiracy and Basaraba had never met Black. After Cowan refused to testify, it is

plausible that defense counsel decided to avoid bringing attention to Black as part of the

8 conspiracy. Based on the record, the defense strategy may have been that Black was not

involved in the conspiracy. In any event, we do not have a basis in the record to determine

whether failure to request the conspiracy-based instruction was deficient performance.

¶23 Black's counsel was not ineffective based on the record. Black can address the issue

in a petition for postconviction relief with the District Court if she so chooses.

¶24 We have deterrnined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review.

¶25 Affirmed.

Chief Justice

We Concur:

Justices