State v. Root, 2015 MT 310 (Oct. 27, 2015) (McGrath, C.J.; Cotter, J., dissenting) (4-3, aff’d)
Issue: (1) Whether Root’s attorney was ineffective for not requesting an accomplice instruction; and (2) whether the district court erred in denying Root’s motion to dismiss based on the prosecution’s failure to disclose a video statement of a witness.
Short Answer: (1) No; and (2) no, with Justices Cotter, McKinnon, and Shea dissenting on (2).
Facts: Lawrence Lee was stabbed in the arm and neck while in his pickup truck with Root and juvenile S.R. Lee and S.R. testified that Root stabbed Lee, after which S.R. jumped out of the truck and Lee pushed Root out of the truck. S.R. testified that after Lee left, S.R. took the knife and buried it because he was afraid for his safety. Root testified that S.R. stabbed Lee.
Between the second and third days of trial, the state provided the defense with a copy of a recording of a police interview with Lonnie Boyd, a previously disclosed witness, who testified that S.R. told him he, not Root, had stabbed Lee. The next morning, defense counsel moved to dismiss on the grounds that the late disclosure of the recording violated Root’s Brady rights. The district court held a hearing outside the jury’s presence and denied the motion to dismiss, holding the recording was cumulative, and the defense knew about Boyd and had him available to testify at trial.
Procedural Posture & Holding: The jury convicted Root of attempted deliberate homicide. He appeals, and a divided Supreme Court affirms.
Reasoning: (1) S.R. was not charged with any offense. Root contends his trial attorney should have requested a jury instruction that S.R. was legally accountable as an accomplice, and that his testimony must be viewed with distrust and must be corroborated. Because this instruction would have conflicted with Root’s defense that he did not stab Lee, failing to propose the instruction does not fall below an objective standard of reasonableness.
(2) The state had a duty to disclose the Boyd statement earlier than it did, although there is no contention that the prosecutor knew about it prior to disclosing it. Boyd’s statement had exculpatory value and impeachment value. However, because Boyd testified at trial after disclosure of the recording, the jury heard his account that S.R. claimed to have done the stabbing. Boyd directly contradicted S.R.’s previous testimony that S.R. did not know Boyd and had not talked to him about the incident. Root contends earlier disclosure of Boyd’s recorded interview would have allowed different questioning of S.R., who had already testified for the state, but did not seek to recall S.R. after Boyd’s testimony. The late disclosure was not prejudicial to Root’s defense.
Justice Cotter’s Dissent (joined by Justices Shea & McKinnon): Justice Cotter would not reach the first issue, as she would hold the district court erred in in denying Root’s motion to dismiss based on the late disclosure of Boyd’s statement. There is no question the state possessed evidence favorable to the defense, which it failed to provide to Root in advance of trial. The only remaining question in the Brady analysis is whether the late disclosure prejudiced Root, which Justice Cotter believes it clearly did. Root did not receive a fair trial.