Johnston v. State
| Decision Date | 31 January 2023 |
| Docket Number | DA 21-0510 |
| Citation | 2023 MT 20 N |
| Parties | CODY WAYNE JOHNSTON, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. |
| Court | Montana Supreme Court |
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.
¶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 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 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?"
¶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 §§ 46-21101(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 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 error[3] and supporting conclusions and applications of law de novo for correctness. Beach v. State, 2009 MT 398, ¶ 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...
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