DA 13-0667

IN THE SUPREME COURT OF THE STATE OF MONTANA

2015 MT 310

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

MICHAEL JEFFERY ROOT,

 Defendant and Appellant.

APPEAL FROM: District Court of the Second Judicial District,

In and For the County of Silver Bow, Cause No. DC-12-116

Honorable Brad Newman, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Wade Zolynski, Chief Appellate Defender, Koan Mercer, Assistant

Appellate Defender, Helena, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant

Attorney General, Helena, Montana

Eileen Joyce, Silver Bow County Attorney, Samm Cox, Mike Clague,

Deputy County Attorneys, Butte, Montana

Submitted on Briefs: August 19, 2015

 Decided: October 27, 2015

Filed:

__________________________________________

Clerk

October 27 2015

Case Number: DA 13-0667
2

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Michael Root appeals from his February 2013 conviction after a jury trial of the 

offense of attempted deliberate homicide. We affirm.

¶2 Root presents the following issues for review:

¶3 Issue One: Whether Root’s attorney was ineffective for not requesting an 

accomplice instruction.

¶4 Issue Two: Whether the District Court erred in denying Root’s motion to dismiss 

based upon the prosecution’s failure to disclose a video statement of a witness.

BACKGROUND

¶5 This case began with events in Butte, Montana, on July 27, 2012, that resulted in 

Lawrence Lee being stabbed in the arm and neck and cut on his hand. This happened 

after defendant Root and a juvenile referred to as S.R. entered Lee’s pickup truck and 

asked for a ride up the hill to Walkerville. Lee testified at trial that as the trio motored to 

and through Walkerville, Root pulled a knife and stabbed and cut him and said “This is 

for Jennifer Marshall.” Lee testified that as the truck slowed S.R. jumped out the 

passenger side door and he (Lee) struggled with Root and eventually forced him from the 

cab. Lee then tried unsuccessfully to hit both S.R. and Root by backing the truck into 

them. He left the scene, stopping at a house for assistance. He did not notify the police 

because “you know, it’s Butte, you don’t call the cops.”

¶6 S.R. testified that Root stabbed and cut Lee; that both he and Root ended up out of 

the truck trying to avoid Lee; and that both he and Root fled the scene. S.R. testified that 

he did not know Root or Lee, but that he saw the two together and offered them some 
3

weed if they would give him a ride to a house in Walkerville. S.R. testified that after he 

jumped out of the truck he looked back and saw Lee and Root struggling and saw that 

Lee had been stabbed. S.R. testified that after Root and S.R. were out of the truck, Lee 

backed up and tried to hit them. S.R. testified that after Lee left, he (S.R.) took the knife 

from Root and buried it because he was afraid for his safety.

¶7 Root testified that he did not stab and cut Lee, but that S.R. did. He said that he 

met S.R. earlier in the day and saw him later when Lee and S.R. pulled up in Lee’s truck 

and the ride began. Root testified that Lee attacked S.R. in the truck, and that when that 

started he got out. Root testified that when he saw that Lee had a knife, he intervened 

and fought with Lee inside the truck. He said that S.R. then pulled him out of the truck 

and Lee tried to run them down. On appeal Root summarizes his defense at trial as based 

on the argument that “he was innocent of attempted homicide and that he didn’t use a 

knife.” 

STANDARD OF REVIEW

¶8 Claims of ineffective assistance of counsel present mixed questions of law and fact 

that we review de novo. State v. Green, 2009 MT 114, ¶ 14, 350 Mont. 141, 205 P.3d 

798. 

¶9 This Court reviews the denial of a motion to dismiss in a criminal case de novo to 

determine whether the decision was correct. State v. Meredith, 2010 MT 27, ¶ 24, 355 

Mont. 148, 226 P.3d 571. 
4

DISCUSSION

¶10 Issue One: Whether Root’s attorney was ineffective for not requesting an 

accomplice instruction.

¶11 This Court evaluates claims of ineffective assistance of counsel under the test 

established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984) and

Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. First the defendant 

must show that his attorney’s performance was deficient by demonstrating that it fell 

below an objective standard of reasonableness. Whitlow, ¶ 14. There is a strong 

presumption that the attorney’s performance fell within the wide range of reasonable 

professional assistance, Whitlow, ¶ 15, because there are “countless ways to provide 

reasonable assistance in any given case.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

¶12 Second, the defendant must show that his attorney’s deficient performance 

prejudiced the defense. Whitlow, ¶ 10. This requires a showing of a “reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. An 

ineffective assistance claim that cannot be determined from the facts in the record can be 

reviewed in a petition for postconviction relief. State v. Kougl, 2004 MT 243, ¶ 14, 323 

Mont. 6, 97 P.3d 1095. 

¶13 Root contends that his trial attorney should have requested a jury instruction that 

S.R. was legally accountable (an accomplice) for the charged offense and that his 

testimony must be viewed with distrust and must be corroborated. Sections 26-1-303(4) 

and 45-2-302, MCA. S.R. was not charged with any offense arising from this incident. 
5

¶14 Even if an accomplice instruction could be given in a case if requested, an attorney 

does not necessarily provide ineffective assistance to his client by failing to request one. 

State v. Johnson, 257 Mont. 157, 162-63, 848 P.2d 496, 499 (1993) (where accomplice 

instruction conflicted with the defendant’s claim that he did not commit the crime, not 

requesting an accomplice instruction was a “clear” tactical decision that did not support a 

claim of ineffective assistance). In this case Root’s attorney did not provide ineffective 

assistance by not requesting an accomplice instruction because it would have conflicted 

with Root’s defense that he did not stab Lee.

¶15 It is not proper to give an accountability/accomplice instruction where it is 

unsupported by the evidence and is inconsistent with the defendant’s claim of innocence. 

State v. Hall, 2003 MT 253, ¶ 30, 317 Mont. 356, 77 P.3d 239. Even where there was 

clearly an accomplice, the trial court is not required to give the accomplice instruction in 

every case, and counsel is not ineffective for failing to request the instruction where it 

would be inconsistent with the theory of defense. Johnson, 257 Mont. at 162-63, 848 

P.2d at 499. Defense counsel is responsible for making the tactical decision to forego an 

accomplice instruction where it would be inconsistent with the theory of defense. State v. 

Sheppard, 270 Mont. 122, 129-30, 890 P.2d 754, 758 (1995). In the case of an 

inconsistent defense, this Court on appeal can determine from the face of the record that 

defense counsel made a “clear” tactical decision that does not constitute ineffective 

assistance. Johnson, 257 Mont. at 163, 848 P.2d at 499; Kougl, ¶ 18.

¶16 Root claims that, while he did not stab Lee, he committed an offense (assault) by 

fighting with Lee and therefore he did not claim that he was “totally innocent.” 
6

However, he claims that S.R. was an accomplice in the attempted deliberate homicide, a 

charge for which Root denies any culpability. His attorney was faced with defending 

based upon Root’s version of the events. Defense counsel’s trial tactics are necessarily 

constrained by the facts and evidence that will be considered by the jury. State v. 

Morsette, 2013 MT 270, ¶ 21, 372 Mont. 38, 309 P.3d 978. 

¶17 We conclude that the performance of Root’s attorney did not fall below an 

objective standard of reasonableness, and was within the wide range of reasonable 

professional assistance, Whitlow, ¶¶ 14-15. The Sixth Amendment of the United States 

Constitution guarantees that counsel perform with reasonable competence, and that

success is not the test of effective counsel. Root has not demonstrated that but for 

counsel’s performance the result would have been different. Bomar v. State, 2012 MT 

163, ¶¶ 19, 23, 365 Mont. 474, 285 P.3d 396. Therefore we determine that Root’s 

attorney was not ineffective in failing to offer an accomplice instruction.

¶18 Issue Two: Whether the District Court erred in denying Root’s motion to dismiss 

based upon the prosecution’s failure to disclose a video statement of a witness.

¶19 Between the second and third days of trial the State provided the defense with a 

copy of a recording of an interview between police and a previously-disclosed witness 

named Lonnie Boyd. The next morning defense counsel moved the District Court to 

dismiss the charges on the ground that the late disclosure of the recording was a violation 

of Root’s right to due process under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 

(1963). Under Brady, a criminal defendant has a due process right to obtain exculpatory 

evidence held by the prosecution. To prevail on a Brady violation the defendant must 
7

establish that the State possessed evidence favorable to the defense because of its 

exculpatory or impeachment value; that the prosecution willfully or inadvertently 

suppressed the evidence; and that suppression of the evidence prejudiced the accused. 

State v. Fish, 2009 MT 47, ¶ 20, 349 Mont. 286, 204 P.3d 681. However, a defendant’s 

right to due process “is not violated every time the government fails or chooses not to 

disclose evidence that might prove helpful to the defense” and the defendant must 

demonstrate that the suppressed evidence “could reasonably be taken to put the whole 

case in such a different light as to undermine confidence in the verdict.” Kyles v. 

Whitley, 514 U.S. 419, 435, 437, 115 S. Ct. 1555, 1566, 1567 (1995).

¶20 The District Court held a hearing out of the presence of the jury on Root’s motion 

to dismiss. After argument from counsel the District Court denied the motion to dismiss, 

holding that the recording of the Boyd interview was cumulative; that the defense knew 

about Boyd prior to the disclosure of the recording; that the defense knew Boyd had 

given a statement to officers; and that the defense knew that the police obtained a search 

warrant for a building in Butte based upon Boyd’s statement. The District Court found 

that the defense in fact had Boyd available to testify at trial.

¶21 It is clear that the State had an obligation to disclose the Boyd statement earlier 

than it did, even though there is no contention that the prosecutor in Root’s case knew 

about the recording prior to disclosing it to the defense. It is also clear that the Boyd 

statement had exculpatory value in that it provided evidence that S.R. had claimed that 

he, and not Root, stabbed the victim. It is also clear that the statement had impeachment 

value because it contradicted the testimony of S.R., who testified (along with the victim) 
8

that Root was the culprit. At the same time, because Boyd testified at trial after 

disclosure of the recording of his statement, the jury heard his account of S.R.’s claim to 

have done the stabbing.

¶22 Additional facts about Boyd appear in the record. Boyd was not involved in the 

incident in which Lee was stabbed. Rather, Boyd was in police custody on unrelated 

charges, and about six days after the stabbing he offered to police that he would give a 

statement that S.R. had told him that S.R, and not Root, stabbed Lee. Boyd provided a 

recorded statement recounting his interactions with S.R. and about S.R.’s description of 

the stabbing. The police obtained a search warrant based upon Boyd’s statement that 

S.R. showed him where the knife was hidden, but they found nothing during the search to 

corroborate Boyd’s account. 

¶23 In early December 2012 before trial, Root moved in limine that he be allowed to 

introduce the testimony of a police detective who had interviewed Boyd, because Boyd 

had told police that S.R. admitted to stabbing Lee. The State responded that the defense 

had been given Boyd’s name, address and “all pertinent information.” The State objected 

to introduction of the detective’s testimony about Boyd’s statement on the ground of 

hearsay. In January 2013 the State obtained and filed a subpoena issued to Boyd to 

secure his attendance at trial, and separately disclosed him (and his address) as a witness 

for the State. The District Court’s order in January 2013 denied on hearsay grounds 

Root’s motion that the police officer be allowed to testify what Boyd had said about what 

S.R. had said. In February 2013 the defense obtained and filed a subpoena to secure 

Boyd’s appearance at trial.
9

¶24 The State called S.R. as a witness during its case-in-chief, before Boyd or Root 

testified. On cross-examination, Root’s attorney asked S.R. whether he told Lonnie Boyd 

that S.R. had stabbed Lee. S.R. testified that he did not know Boyd and that it was “not 

true” that he claimed to have stabbed Lee. 

¶25 After the District Court denied Root’s motion to dismiss, the defense called 

Lonnie Boyd to testify at trial. Boyd testified for the defense that he talked to S.R. in 

person and on the phone after the stabbing. Boyd directly contradicted S.R.’s prior 

testimony that S.R. did not know Boyd and did not talk to him about the incident. Boyd 

testified that S.R. told him that S.R. had gotten a ride with Lee and had tried to rob him of 

drugs. Boyd testified that S.R. told him he stabbed Lee while fighting with Lee about the 

drugs. Boyd testified that he told law enforcement about S.R.’s claims after he heard that 

S.R. claimed that Boyd was present at the stabbing. Boyd testified that S.R. told him that 

he and Lee were also involved in some kind of transaction involving guns, but that the 

stabbing was about drugs. Boyd testified that S.R. showed him a knife that he claimed he 

used to stab Lee, and that the knife was with a number of guns in a “cubby hole” in a 

particular house in Butte. Boyd also testified that S.R. talked about a woman that he 

knew who may have been assaulted by the victim Lee, but that the assault was not the 

reason that Lee got stabbed. Boyd testified that he felt that S.R. wanted to be seen as a 

gangster and was telling the story about stabbing the victim to enhance his credibility in 

that regard.

¶26 Root contends that there were other critical impeachment facts in the recording of 

Boyd’s statement to police. Those included the color of a knife that he says S.R. showed 
10

him; that it was wrapped in “old fabric”; that while S.R. tried to posture as a criminal, he 

came across as a “nutty gangster”; and that Boyd had seen him pull a gun. These aspects 

of the Boyd statement, which Root’s defense knew about before Boyd testified, were 

cumulative at best. 

¶27 Unlike most Brady cases, Root obtained the recording of the interview before the 

conclusion of the trial and at a time when he could use it in his defense. Root argues that 

prior knowledge of the contents of the recording could have allowed different questioning 

of S.R., who had already testified for the State. However, the only relief he sought from 

the District Court was dismissal of the charges. He did not seek to recall S.R. and 

examine or cross examine him based upon information in the recording.1 

¶28 While Boyd’s statement about what S.R. told him was clearly exculpatory, Root 

obtained the statement during trial. Root also took advantage of the impeachment value 

of Boyd’s statement, directly contradicting S.R.’s earlier testimony. Root argues that 

there were additional details in Boyd’s recorded statement that he could have used to 

impeach S.R. when he originally testified. It is clear that Boyd’s trial testimony as given 

substantially conflicted with and, if believed, substantially impeached S.R.’s testimony 

that Root stabbed the victim. The jury heard Boyd testify and heard him give his account 

of S.R.’s purported confession to the crime. Root presented this potentially exculpatory 

evidence to the jury, which determined nonetheless that Root stabbed the victim. He was 

 

1 A defendant may subpoena a witness to testify at his trial, § 46-15-101, MCA, and may 

be entitled to a continuance of the trial in order to serve a subpoena on a critical witness, State v. 

Timblin, 254 Mont. 48, 51, 834 P.2d 927, 928-29 (1992). 
11

entitled to present the testimony, as he did, but it was the province of the jury to believe it 

or not. 

¶29 While S.R. may have been “excused from his subpoena” after testifying in the 

State’s case-in-chief, there is no showing that S.R. was “long gone” or that he could not 

have been subpoenaed again to testify in the defense case. Root’s attorney made the 

tactical decision to not seek to recall S.R. after disclosure of the Boyd statement but to 

seek dismissal of the charges. 

¶30 We conclude that the late disclosure of the Boyd statement was not prejudicial to 

Root’s defense. The narrow issue here is whether not having Boyd’s statement before 

S.R. testified prejudiced Root’s right to a fair trial. Root has not demonstrated that the 

impeachment value of Boyd’s recorded statement was sufficient to undermine confidence 

in the verdict. We conclude that Root did receive a fair trial; that the jury heard fully and 

fairly the testimony about each of the various versions of the stabbing story; and that the 

resulting verdict is “worthy of confidence.” Kyles, 514 U.S. at 435, 115 S. Ct. at 1566.

Consequently, the late disclosure of the recording did not violate Root’s right to obtain 

exculpatory evidence under Brady.

¶31 Affirmed.

/S/ MIKE McGRATH

We Concur:

/S/ MICHAEL E WHEAT

/S/ BETH BAKER

/S/ JIM RICE
12

Justice Patricia Cotter, dissenting.

¶32 I dissent from the Court’s Opinion. I would not reach Issue One. I would 

conclude that the District Court erred in denying Root’s motion to dismiss based upon the 

prosecution’s failure to disclose the Boyd video statement to Root prior to trial.

¶33 As the Court notes at ¶ 19, in order to establish a Brady violation, a defendant 

must establish that the State possessed evidence favorable to the defense, that the 

evidence was inadvertently or willfully suppressed, and that suppression of the evidence 

prejudiced the accused. Fish, ¶ 20. Otherwise stated, a successful Brady petitioner must 

demonstrate that “there is a reasonable probability” that the result of the trial might have 

been different had the suppressed evidence been properly disclosed. Strickler v. Greene, 

527 U.S. 263, 289-90, 119 S. Ct. 1936, 1952 (1999) (citing Kyles, 514 U.S. at 434-35). 

¶34 The Court maintains that because Root obtained the recording of the interview 

with Boyd before the conclusion of the trial, he was able to use the statement in his 

defense. Opinion, ¶ 27. While it is true that Root was able to elicit some of the details of 

Boyd’s statement to the police by calling Boyd to the witness stand after the State rested, 

he was completely deprived of the opportunity to paint the State’s chief witness as a liar 

during the State’s presentation of its case. Had Root been provided with S.R.’s statement 

prior to trial, he could have impeached the State’s witness while he sat on the stand; 

instead, S.R.’s testimony was essentially uncontradicted until Root was able to call Boyd 

as a witness in his case. Respectfully, an effective impeachment of the State’s key 

witness places reasonable doubt in the minds of jurors from the outset, and therefore 

packs a far greater punch than a belated offer of testimony during the defendant’s case. 
13

¶35 Boyd provided the police with many non-cumulative details about S.R., including 

his mother’s name and address, the names of many of his friends, the name of his 

girlfriend, and the nature of his interests and proclivities. As defense counsel argued, had 

he been possessed of this information before trial, he could have used it to impeach S.R.’s 

assertion at trial that he did not even know Boyd. He also could have asked S.R. about 

other information contained in the statement, such as the fact that Boyd met with S.R. on 

the day of the stabbing while S.R. was in possession of a bloody knife, and that S.R. told 

Boyd that Root “was just sitting around,” and did not participate in the stabbing. Defense 

counsel could have asked S.R about many things revealed in Boyd’s statement, had it 

been provided to him prior to trial as the law requires. However, he had no opportunity 

to utilize the valuable information contained in the Boyd statement to impeach S.R., 

because the statement was only provided to him after S.R. testified, and only after the 

State requested and the court allowed S.R. to be “permanently excused from his 

subpoena.” 

¶36 There is no question that the State possessed evidence favorable to the defense, 

and that it failed to provide the evidence to Root in advance of trial. The only question 

remaining in the Brady analysis is whether suppression of the evidence prejudiced Root. 

It clearly did. Three persons were in the vehicle when the stabbing occurred—the 

defendant, the victim, and S.R.—and the three provided radically different versions of 

what occurred prior to, during and after the stabbing. One cannot state for certain that the 

outcome of the case would have been different had Root been provided with the Boyd 
14

statement prior to trial; however, a fully informed impeachment of S.R. would have 

surely undermined S.R.’s credibility, which was central to the State’s case. 

¶37 Root’s inability to present his most persuasive case is not his fault; the fall lies 

clearly with the State. The Ninth Circuit has recently emphasized that “[t]he prosecutor’s 

obligation under Brady is not excused by a defense counsel’s failure to exercise diligence 

with respect to suppressed evidence.” Amado v. Gonzalez, 758 F.3d 1119, 1135 (9th Cir. 

2014). The court observed that the “requirement of due diligence would flip that 

[disclosure] obligation, and enable a prosecutor to excuse his failure by arguing that 

defense counsel could have found the information himself. The proposition is contrary to 

federal law as clearly established by the Supreme Court, and unsound public policy.” 

Amado, 758 F.3d at 1136 (internal citations omitted). 

¶38 In addressing the “reasonable probability that the outcome of the trial would have 

been different” component of the Brady test, the United States Supreme Court stated: 

“the adjective [reasonable] is important. The question is not whether the defendant 

would more likely than not have received a different verdict with the evidence, but 

whether in its absence he received a fair trial, understood as a trial resulting in a verdict 

worthy of confidence.” Kyles, 514 U.S. at 434. Root did not receive a fair trial. Had 

defense counsel been in possession of the Boyd statement at the time he cross-examined 

S.R., he could have asked S.R. pointed factual questions premised upon Boyd’s 

statements. Had S.R. then denied the truth of those statements, impeachment via a prior 

inconsistent statement would have been set, as the State itself acknowledged during the 

Brady arguments to the District Court. However, S.R. was long gone by the time the 
15

State provided the defendant with the Boyd statement, having been permanently released 

from his subpoena at the State’s request. Thus, the defendant irretrievably lost the 

opportunity to conduct a meaningful cross-examination and impeachment of the State’s 

critical witness. 

¶39 We err in blithely concluding that the late disclosure of the recording did not 

prejudice Root. Opinion, ¶ 30. It is equally troubling that we seemingly shrug off as 

insignificant the State’s Brady violation. While I do not contend that the State 

intentionally withheld the Boyd statement until after it had rested its case, “inadvertent” 

suppression should not be so easily excused. As the Ninth Circuit’s Chief Judge 

Kozinski famously observed in 2013, “[t]here is an epidemic of Brady violations abroad 

in the land. Only judges can put a stop to it.” United States v. Olsen, 737 F.3d 625, 626 

(9th Cir. 2013) (Kozinski, J., dissenting). I would conclude that the District Court erred 

in denying Root’s motion to dismiss based upon the prosecution’s Brady violation, and I 

therefore dissent from the Court’s Opinion. 

/S/ PATRICIA COTTER

Justices Laurie McKinnon and James Jeremiah Shea join in the dissent of Justice Cotter.

/S/ LAURIE McKINNON

/S/ JAMES JEREMIAH SHEA