State v. Kougl

Decision Date08 September 2004
Docket NumberNo. 03-503.,03-503.
Citation2004 MT 243,322 Mont. 6,97 P.3d 1095
PartiesSTATE of Montana, Plaintiff and Respondent, v. Mark Robert KOUGL, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Chad Wright, Appellate Defender, Helena, Montana Missoula, Montana.

For Respondent: Mike McGrath, Attorney General; Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana, Brant S. Light, Cascade County Attorney, Great Falls, Montana.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Mark Robert Kougl appeals from a conviction of Operation of Unlawful Clandestine Laboratory. We reverse.

¶ 2 We restate the issues on appeal as:

¶ 3 Is Kougl's ineffective assistance of counsel claim properly before us on direct appeal, or is a postconviction proceeding the proper forum?

¶ 4 Whether Kougl's trial counsel provided ineffective assistance because she failed to request jury instructions regarding accomplice testimony.


¶ 5 On July 17, 2002, Kougl was arrested at the scene of a methamphetamine lab in Great Falls. The lab was the home of Colt Loney and Susan Fassler. Other individuals were also present, including James Pool. Cascade County Sheriff's Detective Dan Kohm and another officer arrived at the home to present a forgery arrest warrant to Fassler. After obtaining permission to enter the home, Detective Kohm observed many items consistent with the operation of a methamphetamine lab. After receiving written consent from Fassler, Kohm found more suspicious items, all of which he knew were used in the production of methamphetamine. Later, after obtaining a search warrant, officers discovered a plethora of additional materials used in the making of methamphetamine.

¶ 6 In conducting a protective sweep of the premises, the officers found Kougl in Loney and Fassler's bedroom. He was lying on the bed and displayed tell-tale signs of methamphetamine use, including sweating, anxiety, and facial distortions. Beside him on a night stand was a decorative tin containing a bag of white powder. Between the night stand and the bed was a bag containing baggies of white powder and beige powder. Later tests established that both sets of white powder were a mix of guaifenesin and ephedrine or pseudoephedrine, and that the beige powder was methamphetamine. Ephedrine, or pseudoephedrine, is a necessary ingredient in the making of methamphetamine. Kougl was then taken outside and arrested. He asked to speak to a detective and then stated that he was at the home to learn how to cook methamphetamine and that Loney and another one of the suspects on the scene, Buddy Komeotis, were going to cook the methamphetamine and had gathered all the ingredients.

¶ 7 Kougl was subsequently charged with the felony offense of Operation of Unlawful Clandestine Laboratory. At trial Loney, Pool, and Fassler all testified against Kougl. Loney and Pool agreed to do so as part of their plea bargain agreements. Loney agreed to testify and to plead guilty to the same charge as Kougl in exchange for the State recommending a ten-year sentence with six years suspended. In addition, the State agreed not to bring a felony possession charge, a misdemeanor drug charge, and an assault charge against him. Pool agreed to testify and to plead guilty to possession of misdemeanor drug paraphernalia. In exchange, the State promised to recommend that the maximum sentence of six months be suspended, and, more importantly, that it would not charge Pool with Operation of Unlawful Clandestine Laboratory, again, the charge brought against Kougl. Given Pool's criminal history, he could have received up to one hundred years in Montana State Prison for that charge. Fassler plea bargained with the State, but it does not appear that she received any benefit from the State for testifying against Kougl.

¶ 8 The prosecution's case was largely based on the testimony of Loney, Pool, and Fassler. Apart from Kougl's presence on the scene of the methamphetamine lab — and his obvious recent use of methamphetamine at the time of his arrest, his statement that he was there to learn how to manufacture methamphetamine, and perhaps the presence of the tin beside him in Loney and Fassler's bedroom, the accomplice testimony was the only other evidence connecting Kougl with the operation of the lab. Loney stated that Kougl had traded the needed ephedrine for methamphetamine. He also testified that he later gave the ephedrine to Fassler which he said she then placed in a tin. This testimony was partially weakened by a confidential informant who told the authorities before the arrests that another person had provided Loney with four ounces of ephedrine. In doing so the informant did not name Kougl. In the case of Pool, he stated that Kougl told him he had ephedrine. Pool also denied he was involved in the lab, but the credibility of this contention was seriously undermined by the testimony of the police and of Loney. In the case of Fassler, she testified that she heard Kougl say he would deliver the ephedrine needed to make methamphetamine. However, she also testified that she did not remember placing the ephedrine in the tin.

¶ 9 In making their closing arguments, both the prosecution and the state-appointed defense counsel pointed out to the jury that the testimony of the accomplices should be viewed with suspicion because of their criminal conduct and the deals Loney and Pool cut with the State. Defense counsel did not, however, ask the court to instruct the jury that under § 26-1-303(4), MCA, the testimony of persons such as the accomplices—that is, those who are legally accountable for the defendant's conduct — ought to be viewed with distrust, or that under § 46-16-213, MCA, the accomplice testimony must be corroborated. The jury returned a verdict of guilty.

¶ 10 Subsequently, Kougl's trial counsel withdrew and Kougl appealed his conviction claiming his right to effective assistance of counsel, as guaranteed by the Sixth Amendment to the United States Constitution, and Article II, Section 24 of the Montana Constitution, was violated by his attorney's failure to ask for instructions on accomplice testimony. The State rejects this contention and furthermore argues that the proper forum for the claim is not a direct appeal but a postconviction proceeding.


¶ 11 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 by Article II, Section 24 of the Montana Constitution. This Court has adopted the two-pronged test of Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, in judging ineffective assistance of counsel claims. Sellner v. State, 2004 MT 205, 322 Mont. 310, 95 P.3d 708. The defendant must demonstrate that (1) "counsel's performance was deficient or fell below an objective standard of reasonableness," State v. Turnsplenty, 2003 MT 159, ¶ 14, 316 Mont. 275, ¶ 14, 70 P.3d 1234, ¶ 14 (citing State v. St. John, 2001 MT 1, ¶ 37, 304 Mont. 47, ¶ 37 15 P.3d 970, ¶ 37); and (2) "establish prejudice by demonstrating that there was a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Turnsplenty, ¶ 14 (citing State v. Harris, 2001 MT 231, ¶ 19, 306 Mont. 525, ¶ 19, 36 P.3d 372, ¶ 19). The first prong carries a strong presumption in favor of the State, as counsel is allowed wide latitude in deciding what tactics she should, and should not, employ in defending her client. See State v. Jefferson, 2003 MT 90, ¶ 48, 315 Mont. 146,

¶ 48, 69 P.3d 641, ¶ 48.

¶ 12 Claims of ineffective assistance of counsel are mixed questions of law and fact. State v. Herrman, 2003 MT 149, ¶ 18, 316 Mont. 198, ¶ 18, 70 P.3d 738, ¶ 18; State v. Turner, 2000 MT 270, ¶ 47, 302 Mont. 69, ¶ 47, 12 P.3d 934, ¶ 47; Strickland, 466 U.S. at 698, 104 S.Ct. at 2070, 80 L.Ed.2d at 700 (stating that both prongs of the test are mixed questions of law and fact). Therefore, our review is de novo. Herrman, ¶ 18; Turner, ¶ 47.


¶ 13 Is Kougl's ineffective assistance of counsel claim properly before us on direct appeal, or is a postconviction proceeding the proper forum?

¶ 14 Before ruling on whether Kougl has satisfied the two prongs of Strickland we must first determine if this direct appeal is even the proper forum in which to do so. Generally, in addressing ineffective assistance of counsel claims, we ask "why" counsel did or did not perform as alleged and then seek to answer the question by reference to the record. State v. White, 2001 MT 149, ¶ 20, 306 Mont. 58, ¶ 20, 30 P.3d 340, ¶ 20. If the record on appeal explains "why," we will then address the issue on appeal. If, as is usually the case, the claim is based on matters outside the record on appeal, we will refuse to address the issue on appeal and allow the defendant to file a postconviction proceeding where he/she can develop a record as to "why" counsel acted as alleged, thus allowing the court to determine whether counsel's performance was ineffective or merely a tactical decision.

¶ 15 Sometimes, however, it is unnecessary to ask "why" in the first instance. An example of this is when counsel is faced with an obligatory, and therefore non-tactical, action. See Hans v. State (1997), 283 Mont. 379, 392, 942 P.2d 674, 682

. Then the question is not "why" but "whether" counsel acted, and if so, if counsel acted adequately. The answer may or may not be in the record. Another example, present here, is the relatively rare situation where there is "no plausible justification" for what defense counsel did. See Jefferson, ¶ 50. This can occur even in situations, such as those listed in White, that generally rely on non-record material. See White, ¶¶ 18-19 (listing, inter alia,"the failure to fully inform a defendant of the...

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