STATE OF MONTANA v. PATRICK TERRY FLOWERS

During routine patrol near Stevensville, Montana, in December 2014, Deputy

Jason Jones of the Ravalli County Sheriff’s Office stopped a pickup that had an expired

registration. Flowers was driving the vehicle and Hill sat in the front passenger seat.

Deputy Jones asked for Flowers’s driver’s license and other documentation. After

checking for active warrants for both Flowers and Hill, Deputy Jones informed Flowers

that he was issuing him a warning for the expired tags. He asked Flowers to exit his

pickup to show him the expired registration tags on the vehicle.

¶3 Once Flowers exited the vehicle, Deputy Jones returned Flowers’s driver’s license

and documentation and told Flowers that he was free to go, but asked for consent to

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search the vehicle. Flowersconsented and signed a consent form. Hill remained alone in

the cab of the pickup during this interaction, but eventually got out and stood by a law

enforcement vehicle during the search. Trooper Rocky Bailey and Sergeant Jesse Jessop

were present for backup during the search. Before the search began, Flowers asked to get

a sweatshirt from the back seat of the pickup. As Flowers retrieved the sweatshirt, a glass

pipe fell out of the pickup cab onto the ground.

¶4 Deputy Jones recognized the pipe as the type of pipe used to smoke

methamphetamine and placed Flowers under arrest. Laboratory tests later confirmed that

the pipe had methamphetamine residue on it. After giving Flowers a Miranda warning,

Deputy Jones asked Flowers who owned the pipe. Flowers replied that he did not know.

When Deputy Jones asked whether the pipe belonged to Hill, Flowers stated that he did

not think so.

¶5 While searching the truck, Deputy Jones found a plastic box containing a

marijuana pipe and a bag with 6.65 grams of marijuana under the driver’s seat. He also

found a plastic container containing marijuana residue in the backseat. Hill consented to

Deputy Jones’s request to search her purse. Inside, he found a small glass vial with a

white powdery substance in it, which laboratory tests later confirmed as

methamphetamine.

¶6 Deputy Jones, Trooper Bailey, and Sergeant Jessop all testified that Flowers did

not appear to be intoxicated during the stop, but that Hill appeared to be under the

influence of methamphetamine or another drug because she was twitching and had jerky

movements. Both Flowers and Hill were charged with criminal possession of

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methamphetamine, criminal possession of marijuana, and two counts of criminal

possession of drug paraphernalia.

¶7 At the time of the December 2014 traffic stop, Hill already was facing serious

drug charges from an incident in August 2014, including two charges of criminal

possession of dangerous drugs with intent to distribute and criminal possession of drug

paraphernalia. Hill’s charges from the two incidents, along with the persistent felony

offender (“PFO”) status the State sought, carried a combined maximum penalty of 147

years of incarceration. Before Flowers’s trial, Hill reached a plea agreement with the

State to resolve all of her pending charges. The State agreed to amend her August 2014

charges to two charges of criminal possession of dangerous drugs and to dismiss the

notice of intent to seek PFO status. Hill pleaded guilty to the two amended charges and

to all the charges arising from the December 2014 traffic stop with Flowers. The State

agreed to recommend that the court sentence Hill to five years for the August charges and

an additional two years suspended for the December charges. The agreement provided

that the trial court was not bound by the sentencing recommendation. The agreement did

not require Hill to testify against Flowers. At the time of the trial, Hill was awaiting

sentencing.

¶8 In its pretrial filings, the State notified Flowers that it intended to call Hill to

testify against Flowers. In response, Flowers filed a pretrial notice that he intended to use

evidence subject to M. R. Evid. 404(b), namely evidence of Hill’s prior drug charges. He

stated that he was not introducing the evidence to prove character, but “to prove motive,

intent, opportunity, absence of mistake or accident, and the identity of the possessor of

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the contraband discovered in Mr. Flower’s [sic] vehicle.” He also filed a motion to take

judicial notice of the charges against Hill and her subsequent guilty pleas. The State

argued that if the court permitted Flowers to introduce evidence of the charges already

pending against Hill at the time of the traffic stop, then the State should be permitted to

address the Partner or Family Member Assault convictions for which Flowers was

awaiting sentencing at the time of the traffic stop to give the jury the full context of

Flowers’s motivation, opportunity, or lack of accident that night. The District Court

excluded all evidence pertaining to Hill’s prior charges, stating, “I’m not really inclined

to extensively get into the history of either party. I’d like to keep the focus on what

occurred on the day of this arrest.” The court permitted Flowers to cross-examine Hill

about the portions of her plea agreement dealing with the December 2014 charges, but

excluded all other questioning, and the plea agreement itself, under M. R. Evid. 404(b).

¶9 Hill testified that she and Flowers had been at a friend’s house watching football

earlier that evening and that Flowers was giving her a ride home. She testified that she

was not under the influence of drugs or alcohol that night and that the drugs found in

Flowers’s pickup belonged to Flowers. She testified that she pleaded guilty to the

charges arising from the December 2014 traffic stop because she knew that the drugs

were in the pickup. When asked whether the State had given her favorable treatment in

her plea agreement, she replied, “If you call seven years favorable treatment.” When

Flowers asked her whether the State had amended charges against her as part of her plea

agreement, the District Court sustained the prosecutor’s Rule 404(b) objection, ending

that line of questioning.

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¶10 The jury found Flowers guilty of all charges. The District Court sentenced him to

ten years with five suspended. STANDARDSOF REVIEW ¶11 We review evidentiary rulings—including a district court’s ruling regarding the

admissibility of evidence of other crimes, wrongs, or acts—for abuse of discretion. State

v. Crider, 2014 MT139, ¶ 14, 375 Mont. 187, 328 P.3d 612.

¶12 We exercise plenary review over issues of constitutional law. State v. Daniels,

2011 MT 278, ¶ 11, 362 Mont. 426, 265 P.3d 623. But we typically do not address issues

raised for the first time on appeal, except in a narrow class of cases suitable for

plain-errorreview. State v. Ritesman, 2018 MT 55, ¶ 12, 390 Mont. 399,___ P.3d ___.

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

that this Court reviews de novo. State v. Root, 2015 MT 310, ¶ 8, 381 Mont. 314, 359

P.3d 1088.

DISCUSSION ¶14 1. Whether the District Court abused its discretion by excluding evidence of Hill’s plea agreement.

¶15 Flowers argues that the District Court abused its discretion when it excluded

evidence of Hill’s plea agreement and prior drug charges under M. R. Evid. 404(b) and

prevented Flowers from fully cross-examining Hill about her plea agreement. He argues

that he was not relying on the evidence to show Hill’s criminal disposition, but rather to

demonstrate Hill’s motive to testify falsely, to show the identity of the owner of the

contraband, and to impeach Hill’s testimony that she did not receive a favorable deal

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from the State. He argues that these uses are permissible under M. R. Evid. 404(b).

Alternatively, Flowers argues that this Court should exercise plain-error review,

because—although he did not object on this ground—the exclusion of the evidence

prevented him from defending himself and violated his Confrontation Clause rights under

the federal and state constitutions.

¶16 The State counters that the District Court did not abuse its discretion when it

excluded evidence of Hill’s prior drug charges under M. R. Evid. 404(b); the evidence

easily could be used to imply that Hill possessed the drugs at issue here due to her

criminal propensity. The State argues that Flowers did not articulate a chain of

inferences before the District Court that established how this evidence was relevant for a

permissible purpose and that Flowers therefore failed to preserve this argument for

appeal. Further, the State argues that the evidence properly was excluded under

M.R.Evid. 403, because getting into the criminal histories of Flowers and Hill would be

a waste of time and confuse the jury with minimal probative value. Finally, the State

argues that the District Court did not commit plain error or violate Flowers’s

constitutional rights in limiting the cross-examination of Hill because there is no evidence

in the record that Hill received any benefit in exchange for her testimony and the District

Court properly limited Flowers’s cross-examination to Hill’s role in, and pleas arising

from, the December traffic stop.

¶17 We reject the State’s argument that Flowers failed to preserve his objection to the

exclusion of the proffered evidence. Flowers filed notice of his intent to use Hill’s plea

agreement and prior drug charges “to prove motive, intent, opportunity, absence of

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mistake or accident, and the identity of the possessor of contraband discovered... or any

other purpose allowed by law and the Montana Rules of Evidence.” He also filed a

motion for the District Court to take judicial notice of the plea agreement and charges.

The State did not file a responding brief, but the motions were argued in the final pretrial

conference before the District Court. Flowers argued that because Hill resolved all of her

pending charges in a global plea agreement, it was problematic to attempt to separate the

incidents. This was especially true because she pleaded guilty to all charges arising from

the December incident, but the State amended her earlier charges and dropped the PFO

designation as part of the deal. Excluding evidence of the earlier charges thus would

prevent Flowers from fully cross-examining Hill about any leniency she received from

the State. Flowers also argued that the evidence showed intent, motive, and opportunity.

We encourage the use of pretrial motions to preserve objections in cases where “a party

may not wish to register an objection in the presence of the jury for tactical reasons, yet

may wish to preserve the objection on appeal.” Crider, ¶ 19 (internal quotations

omitted). Flowers’s pretrial filings preserved this issue for appeal, and we address the

merits.

¶18 Flowers argued at trial that the drugs found in his pickup truck did not belong to

him, but belonged to Hill, the only other occupant of the vehicle. He sought to introduce

evidence of her pending charges and plea agreement to show that Hill was motivated to

testify falsely in part because she received a favorable deal from the State. Hill’s plea

agreement resolved all the charges pending against her, including charges from an

incident in August 2014. As part of the deal, the State reduced two charges from the

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prior incident and dropped its intention to seek PFO status. It left the four charges from

the December incident unchanged. Allowing Flowers to question Hill only about her

plea agreement as it pertained to the December 2014 charges thus gave the jury only a

partial picture of the deal that the State struck with Hill.

¶19 Worse, Hill implied in her testimony that she had not received a favorable deal:

when questioned about any favorable treatment in her plea agreement, Hill responded,

“Favorable treatment? If you call seven years favorable treatment.” When Flowers

attempted to ask further questions to demonstrate any leniency Hill received, the District

Court sustained the State’s objection. But after Hill implied that she got no favorable

treatment, her deal with the State was proper impeachment material. “[B]ias or motive of

a witness to testify falsely is not a collateral issue because it bears directly on the issue of

the defendant’s guilt; thus, extrinsic evidence is admissible to prove that the witness has a

motive to testify falsely.” State v. Gommenginger, 242 Mont. 265, 272, 790 P.2d 455,

460 (1990). Hill’s insistence that she had not gotten favorable treatment from the State

went uncontradicted. The State exploited this in its closing argument when it stated that

Hill had “taken responsibility for being in that truck with the Defendant that night,” that

she had “stepped up to the plate,” and that she had “nothing to lose” because she already

had pleaded guilty. Recall, however, that Hill had not yet been sentenced, and her plea

agreement was not binding on the sentencing court. Although Hill’s plea agreement did

not require her to testify against Flowers, she arguably had reason to appear in a light

favorable to the prosecution. The District Court rulings left Flowers unable to argue that

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Hill had gained a promise of leniency from the State, which may have motivated her to

testify falsely.

¶20 The parties’ arguments focus on whether Hill’s plea agreement would inject

impermissible other-crimes evidence in violation of M. R. Evid. 404(b). That rule

prohibits evidence of other crimes, wrongs, or acts to show bad character or propensity to

commit the charged offense. M. R. Evid. 404(b). Such evidence may, however, be

admissible for other purposes, such as “proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident.” M. R. Evid. 404(b); State

v. Stewart, 2012 MT 317, ¶ 61, 367 Mont. 503, 291P.3d 1187. “The distinction between

admissible and inadmissible Rule 404(b) evidence turns on the intended purpose of the

evidence, not its substance.” State v. Madplume, 2017 MT 40, ¶ 23, 386 Mont. 368, 390

P.3d 142. The trial court must ensure that any permissible use of evidence that could be

barred under Rule 404(b) is “clearly justified and carefully limited.” State v. Aakre, 2002

MT 101, ¶ 12, 309 Mont. 403, 46 P.3d 648.

¶21 Hill’s plea agreement with the State was relevant to impeach her credibility and to

show her motive for testifying against Flowers. Hill was the only other occupant of the

vehicle when the drugs were found. Her testimony implied that she had come clean for

her role without receiving anything in return, and it went uncontroverted. Her testimony

was the only direct evidence that addressed Flowers’s association with the drugs and drug

paraphernalia found in the truck. Because of the court’s ruling, Flowers was unable to

impeach Hill with a possible motive to testify falsely ona matter that Flowers disputed—

who owned the contraband found in his vehicle.

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¶22 The trial court could have limited the evidence to ensure its permissible use and to

minimize the potential for an improper propensity inference. The court could, for

example, have precluded reference to the specific crimes with which Hill was charged in

the August 2014 incident. But to prohibit any questioning to show that Hill had faced a

potential 147-year sentence and got an agreement from the State for seven years withtwo

suspended deprived Flowers of valuable impeachment evidence. See State v.

Cunningham, 2018 MT 56, ¶26, 390 Mont. 408, ___ P.3d ___; see also Maier v. Wilson,

2017 MT 316, ¶ 43, 390 Mont. 43, 409 P.3d 878. Rule 404(b) did not bar its use.

¶23 We will reverse for evidentiary error only if the error prejudiced a defendant’s

substantial rights. See § 46-20-701(1), MCA. An error is prejudicial if a reasonable

possibility exists that the exclusion of the challenged evidence contributed to the

conviction. See State v. Van Kirk, 2001 MT 184, ¶ 47, 306 Mont. 215, 32 P.3d 735. The

State does not argue harmless error in this case. We conclude that the error prejudiced

Flowers and requires a new trial. Given this disposition, we need not address Flowers’s

Confrontation Clause claim.

¶24 2. Whether Flowers received ineffective assistance of counsel when his attorney failed to offer an accomplice instruction.

¶25 Flowers argues that because the outcome of the case turned on Hill’s credibility,

trial counsel should have requested an accomplice jury instruction. Such an instruction

would have informed the jury that it should view Hill’s testimony with distrust. Flowers

argues that there was no justifiable reason not to request an instruction to distrust the

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testimony of an accomplice under § 26-1-303(4), MCA; had trial counsel requested an

accomplice instruction, the District Court would have been required to give it.

¶26 The State counters that Flowers’s trial counsel was not ineffective because an

accomplice instructionwas inconsistent with his claim of innocence.

¶27 We evaluate claims of ineffective assistance of counsel under the test established

in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). See Root, ¶¶ 11-12.

The defendant must show (1) that his attorney’s performance fell below an objective

standard of reasonableness and (2) that this deficient performance prejudiced the defense.

Root, ¶¶ 11-12. A strong presumption exists that the attorney’s performance fell within

the wide range of reasonable professional assistance. Root, ¶ 11.

¶28 Counsel is not ineffective for failing to request an accomplice instruction where

such an instruction would be inconsistent with the theory of defense, such as a claim of

innocence. Root, ¶ 15. Foregoing an accomplice instruction in such circumstances is a

tactical decision. Root, ¶ 15. “In a 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.” Root, ¶ 15 (internal citations

omitted).

¶29 Flowers’s defense theory was that he was innocent. His counsel argued that the

contraband belonged to Hill and Flowers did not know it was in his vehicle. Flowers was

simply giving a ride to a friend. Hill was the one who was high at the time of the traffic

stop, and she was left alone in the pickup with plenty of time to take a pipe out of her

purse and throw it in the back. Flowers’s defense was not that Hill was legally

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accountable for his conduct or acted in concert with him, but that Hill was the only guilty

party. An accomplice instruction would have been inconsistent with this defense of

complete innocence. Counsel acted within the range of reasonable professional

assistance in not requesting an accomplice instruction, and his performance did not fall

below an objective standard of reasonableness.

The judgment is reversed, and the case is remanded for a new trial.