State v. C. Hardy ( 2023 )

06/13/2023
DA 19-0471
Case Number: DA 19-0471
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 110STATE OF MONTANA,
Plaintiff and Appellee,
v.
CARESSA JILL HARDY, a/k/a
GLENN LEE DIBLEY,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 2017-481
Honorable James B. Wheelis, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Tammy A. Hinderman, Assistant
Attorney General, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General, Helena, Montana
Kirsten H. Pabst, Missoula County Attorney, Brian Lowney, Deputy
County Attorney, Missoula, Montana
Submitted on Briefs: January 11, 2023
Decided: June 13, 2023
Filed:
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__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Hardy appeals from his convictions for two homicides and two attempts to solicit a
third homicide entered in the Fourth Judicial District Court, Missoula County. We affirm.
¶2 We restate the issues on appeal as follows:
1. Did the State’s use of jailhouse informants violate Hardy’s right to counsel?
2. Was the jury fully and fairly instructed on the applicable law pertaining to
witness credibility?
3. Did the District Court violate Hardy’s rights to counsel and to present a defense
when it prevented defense counsel from commenting on a missing prosecution
witness during closing argument?
4. Should this Court exercise plain error review to consider whether Hardy’s
allegations of prosecutorial misconduct and other trial errors deprived him of a
fair trial?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In August 2017, the State charged Hardy with two counts of deliberate homicide for
the deaths of Thomas Korjack (Korjack) and Robert Orozco (Orozco) in 2013.
¶4 Hardy met Karen Jill Hardy (Karen) in California in the 1990s. They quickly began
a romantic relationship and moved in together. During their relationship, they had a child
together—Z.H.—who is autistic and nonverbal. Hardy and Karen moved to Wyoming,
where they met Korjack. Korjack, who became estranged from his family after he spent a
year in prison for tax fraud,1 had a Ph.D in engineering and worked in the petroleum
1
While being investigated by the Internal Revenue Service, Korjack researched how to forge
documents and assume new identities and looked into living in a foreign country.
2
industry. Hardy, Karen, Korjack, and Z.H. moved in together and began living as a family.
Hardy’s and Karen’s romantic relationship ended around 2010 after Hardy began to
transition to a woman and legally changed his name from Glenn Dibley to Caressa Hardy.2
Eventually Karen moved back in with Hardy and Korjack in Wyoming. There, she met
Orozco through Hardy and instantly fell in love with him, eventually having a child with
him, R.J. Orozco, Karen, Korjack, and Hardy began to live together, with Korjack
financially supporting the household as an engineer for an oil company. The family
members paid Korjack back by working for him: Karen was a stripper, Orozco helped
Korjack with his business conducting home inspections, and Hardy completed the repairs
identified during those inspections.
¶5 Around 2012, the household moved into a home Korjack purchased outside of
Frenchtown, Montana. Korjack put Hardy’s name on the deed to the home. However, the
relationship between Hardy and Korjack began to change when Korjack discovered Hardy
was in a relationship with a man. According to Karen, Korjack started withdrawing funds
from his accounts and stowing valuables in a safe in the basement of the home so that she
and Z.H. would not “have to worry if something happened.” Korjack withdrew resources
from Hardy, treated him differently, changed the combination to the basement safe, and
the two began to have frequent fights. While Korjack allowed Hardy to continue living in
the Frenchtown home, he eventually asked Hardy for the deed to the house because he
2
The record does not disclose to what degree Hardy has transitioned, including whether Hardy’s
gender has been updated on any forms of identification or documents.
3
wanted to remove Hardy’s name. Hardy told Karen he was afraid Korjack would leave
him, or would kick him out of the home, and he and Z.H. would become homeless. At this
time, Korjack, Orozco, and Karen began looking for another home in another state.
¶6 Around March 26, 2013, Hardy and Korjack argued about the house. Karen,
Korjack, and Orozco took R.J. into the basement bedroom of the Frenchtown home to
discuss getting the deed from Hardy and finding a new home. Hardy walked downstairs
in a bathrobe, entered the room, and another argument ensued. According to Karen, Hardy
said something like “[d]o you want war? Then I’ll give you war,” pulled a gun out of the
pocket of his bathrobe and started shooting. Karen dove away with R.J. as Hardy shot into
the room towards Korjack and Orozco. Hardy started kicking and punching Karen, only
stopping when Karen begged Hardy not to hurt her or the children, to which Hardy
responded that he would never hurt the children. Korjack’s body laid near the door and
Orozco’s body was on the bed. Karen noticed blood on the ground, walls, and television,
and that a window was broken.
¶7 Hardy took Karen upstairs, pulled his bed into the living room, and made Karen
sleep on the couch. The next morning Hardy—armed—escorted Karen downstairs so she
could collect her things. The bodies of Korjack and Orozco were still laying in the room,
exactly where Karen had last seen them. For several days, Hardy forced Karen to sleep in
the living room. He screwed the windows shut and put locks on the doors so they could
not be opened. Hardy kept the gun around him, and Karen did not feel like she could leave.
One morning she woke up and there was a bullet or a bullet casing on her pillow.
4
¶8 Karen testified that Hardy asked her to go on a night drive with him to move the
bodies, but the drive never happened. Instead, Hardy began to burn items in a fire pit
behind the house. The fire went on for a long time, all day and all night. Karen noticed
bedsprings by the fire pit, and when she next returned to the basement, her bed and the
bodies of Orozco and Korjack were gone and the broken window had been replaced. Karen
heard power tools being used in the basement and when she saw the safe again, it had a
hole and had been emptied.
¶9 Karen did not seek help, fearing Hardy would kill or hurt her and the kids. After
Hardy’s friend Lawrence McKinley (McKinley) visited the house around April, Karen and
R.J. moved in with McKinley, while Z.H. stayed with Hardy. Karen later returned to
Hardy’s house after McKinley’s home was burglarized. She feared returning but had
nowhere else to go. When Hardy’s sister visited the house, Karen secretly gave her a letter
explaining some of what had happened, but the sister reported the letter to Hardy, angering
Hardy. Eventually Hardy helped Karen and R.J. move into a woman’s home in eastern
Montana. Hardy and Karen stayed in contact by telephone, but never lived together again.
For years, Karen chose not to report the homicides because she was afraid Z.H. would get
shot.
¶10 Finally, in July 2016, Karen believed she had seen Hardy in town and became
frightened, so she walked into the police station in Sidney, Montana and reported the
homicides. After an investigation, Hardy was charged with two counts of deliberate
homicide for the deaths of Korjack and Orozco which the State alleged occurred between
5
March 26 and April 1 of 2013. Later, the State added two counts of solicitation to commit
deliberate homicide after Hardy asked other inmates to kill Karen while he was
incarcerated in the Missoula County Detention Facility (MCDF).
¶11 During Hardy’s incarceration in the MCDF, four of his fellow inmates provided
incriminating information on Hardy to law enforcement. First, Hardy became cellmates
with Anton Orth (Orth) in September of 2017. At the end of September, Orth reached out
to his defense attorney to “arrange negotiations” with the county attorney’s office. Orth
wrote a letter to the Missoula County Attorney’s Office explaining that he was Hardy’s
cellmate, that he had information on Hardy, and that this was his second attempt to share
this information. Detective Jared Cochran (Cochran), the lead detective on the homicide
investigation, interviewed Orth on October 3, 2017, and November 17, 2017. In the first
interview, Orth told Detective Cochran that Hardy was initially hesitant to discuss his case.
Orth began to directly ask Hardy about the homicide charges, threw “shockers” out such
as telling Hardy if he were to commit suicide, he should first reveal the location of the
bodies so the families could get closure, baiting Hardy by challenging his statements, and
pretending to be on Hardy’s side. Orth told Detective Cochran he believed Hardy, in time,
would admit Korjack and Orozco were dead. Orth told Detective Cochran he snooped
through Hardy’s belongings and took pages from Hardy’s notebook, some of which he sent
to his attorney. Detective Cochran instructed Orth not to do that, saying “if it is his property
I would tell you to leave his property alone,” but did not provide any other instructions to
Orth. Detective Cochran also told Orth he was not promising Orth anything. At the end
6
of the meeting, Detective Cochran arranged to meet a second time with Orth to allow Orth
to go over all his notes from his conversations with Hardy because Orth had difficulty with
remembering things. The next day, Orth mailed pages from Hardy’s notebook to Detective
Cochran, which Detective Cochran believed Orth had already taken before the first
interview. When Orth later confronted Hardy about where Korjack and Orozco were,
Hardy admitted he knew they were dead. During Orth’s second interview, he told
Detective Cochran that Hardy provided Orth the following information: Hardy overheard
Karen and Korjack planning to move out of the Frenchtown house with Z.H., so Hardy
intervened but did not kill Karen because she had R.J.; Hardy eventually let Karen leave
the Frenchtown house because of R.J.; Hardy admitted he used his truck to move the bodies
to the burn pit a few days after the murders; Hardy asked Orth if he knew anyone in another
country who could send a note making it appear as if it were from Korjack; and Hardy
offered to pay Orth to ensure Karen did not testify, but then told Orth he was kidding.
¶12 Hardy was later moved to another jail pod where he met inmate Bryan Palmer
(Palmer). After Palmer asked to speak with law enforcement and requested leniency in
exchange for providing information, Detective Cochran interviewed Palmer twice. During
the second interview, Palmer told Detective Cochran that Hardy solicited him to kill Karen.
In trial, Palmer testified that Hardy asked him to kill Karen, his ex-girlfriend who was the
reason he was in jail, offering him $10,000 to shoot her in the head so she was
unrecognizable. At trial, Detective Cochran testified that he ultimately informed Palmer’s
probation officer in Idaho that Palmer was cooperating.
7
¶13 From December 2017 to January 2018, Hardy shared a jail cell with Martin Hope
(Hope). After Hope sent notes of his conversations with Hardy to jail staff, Detective
Cochran interviewed Hope on December 21, 2017. Hope told Detective Cochran that he
“stroked” Hardy into thinking he could trust Hope, attempting to get Hardy to confess to
the homicides. Hardy believed Hope, who was in jail on a federal hold, was a gang member
who was knowledgeable about crime and would not betray an inmate. Hope said Hardy’s
first question to him was whether Hope knew about luminol, which is used to find blood
evidence. Hope told Detective Cochran of his efforts to break Hardy down into confessing,
including pretending to help Hardy fabricate a defense. Hope also told Detective Cochran
that Hardy was “paranoid about some blood that could be on a TV from the splatter” and
was concerned about a bullet he was unable to find after the shootings. Detective Cochran
did not provide any instructions to Hope at the end of the interview, and Hope returned to
his cell.
¶14 Hope then wrote a note explaining that he had new information, so Detective
Cochran met with Hope for a second time on January 16, 2018. Among other information,
Detective Cochran learned from Hope during the second interview that: Hardy went to the
basement on the day of the murders, pulled the gun out, asked if they wanted war, shot
Korjack twice, then shot Orozco; Hardy used a .45 caliber gun; Hardy beat Karen up but
did not kill her because she was Z.H.’s mother; Hardy left bullet casings on Karen’s pillow;
Hardy broke open a safe containing Korjack’s valuables; when Hope asked Hardy if he
burnt the bodies, Hardy said “[p]oof” and “[u]p in smoke,” as if the bodies were burned
8
and went up in smoke; and Hardy was concerned about bone fragments in the burn pit.
Hope also told Detective Cochran that Hardy kept the blood-splattered, box-style television
in a storage room in the basement, but that he had cleaned the blood off it. Detective
Cochran subsequently applied for a search warrant for a “cathode ray tube (CRT) large box
style television” based on information learned from both interviews with Hope as well as
interviews with other witnesses.
¶15 Detective Cochran learned from Orth that Hardy solicited another inmate, John
Braunreiter (Braunreiter), to kill Karen. Braunreiter was incarcerated in the same jail pod
as Hardy in October of 2017. Detective Cochran then interviewed Braunreiter with his
attorney present, and Braunreiter confirmed Hardy solicited him to kill a witness.
¶16 Hardy moved to suppress evidence obtained from the four inmates and from the
search warrants which were based in part on the information from those inmates. Relevant
to this appeal, Hardy specifically challenged a 2018 search warrant authorizing seizure of
a television splattered with blood,3 a 2018 warrant authorizing a search of Hardy’s
Frenchtown home for human remains,4 and Hardy’s statements to jailhouse informants
3
Detective Cochran applied for the 2018 search warrant a week after interviewing Hope for the
second time. The application relied in part on Karen’s report that blood had splattered on a large
box-style television during the homicides, and in part on Hope’s statements during his second
interview that Hardy told him he had cleaned the blood off the box-style television and kept it in
a storage room in the basement. Law enforcement seized two televisions pursuant to the warrant,
one of which tested presumptively positive for blood. DNA from at least two individuals was
recovered, one of which was highly likely to be Korjack’s DNA.
4
The 2018 warrant to search Hardy’s Frenchtown property for human remains was based on
information from Karen, Hope, and bone fragments discovered during a previous search indicating
that more fragments could possibly be discovered. Additional human remains were discovered
and seized pursuant to the warrant.
9
soliciting the murder of Karen. At the suppression hearing, Orth, Hope, Palmer, and the
detectives who conducted the interviews, including Detective Cochran, testified. After the
hearing, the District Court determined that the three inmates testified truthfully. The court
found Detective Cochran explicitly told Orth and Hope that they were not being promised
any benefits in exchange for information, and neither inmate expected any such benefit.
Further, Detective Cochran did not suggest Orth and Hope could sift through Hardy’s
documents, although both had accessed Hardy’s paperwork while celled with him. The
court determined that the inmates did not learn any important information from Hardy’s
paperwork except for what Hardy permitted them to read. The court found Orth was
motivated to inform on Hardy because he disapproved of Hardy’s parenting of Z.H. and
that Hope was motivated by a dislike of Hardy. As a result, the District Court concluded
that Hardy’s right to counsel was not violated and denied Hardy’s motion to suppress.
¶17 After a nine-day trial, a jury convicted Hardy of two counts of deliberate homicide
and two counts of solicitation to commit deliberate homicide. Hardy was sentenced to
serve four concurrent sentences of life imprisonment, one for each count, at the Montana
State Prison.
STANDARD OF REVIEW
¶18 We review alleged violations of the constitutional right to counsel de novo. State v.
Zlahn, 2014 MT 224, ¶ 13, 376 Mont. 245, 332 P.3d 247. We review a district court’s
denial of a motion to suppress to determine whether the court’s findings are clearly
10
erroneous and whether those findings were applied correctly as a matter of law. State v.
Conley, 2018 MT 83, ¶ 9, 391 Mont. 164, 415 P.3d 473.
¶19 We review jury instructions given by a district court for an abuse of discretion. State
v. Deveraux, 2022 MT 130, ¶ 20, 409 Mont. 177, 512 P.3d 1198.
¶20 We review a trial court’s interpretation of a rule of evidence, a statute, or a
constitutional right de novo. State v. James, 2022 MT 177, ¶ 9, 410 Mont. 55, 517 P.3d
170.
DISCUSSION
¶21 1. Did the State’s use of jailhouse informants violate Hardy’s right to counsel?
¶22 Hardy argues that the State’s use of Orth and Hope—two of the jailhouse
informants—violated his right to counsel by indirectly eliciting incriminating statements
from Hardy in the absence of counsel. As a result, Hardy contends that their statements
and the evidence discovered because of the information they provided should be
suppressed.
¶23 A defendant has a constitutional right to counsel in all criminal prosecutions. U.S.
Const. amend. VI; Mont. Const. art. II, § 24. The right to counsel attaches when a
prosecution commences, “whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment.” State v. Scheffer, 2010 MT 73, ¶ 16, 355 Mont.
523, 230 P.3d 462. Once attached, the government has an “affirmative obligation not to
act in a manner that circumvents the protections accorded the accused by invoking this
right.” Maine v. Moulton, 474 U.S. 159, 176, 106 S. Ct. 477, 487 (1985). This obligation
11
bars the government from “deliberately elicit[ing]” a defendant’s incriminating statements
in the absence of counsel, including indirectly through jailhouse informants. Massiah v.
United States, 377 U.S. 201, 206, 84 S. Ct. 1199, 1203 (1964); United States v. Henry,
447 U.S. 264, 270-71, 100 S. Ct. 2183, 2187 (1980). The central concern of this doctrine
“is secret interrogation by investigatory techniques that are the equivalent of direct police
interrogation.” Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S. Ct. 2616, 2630 (1986).
¶24 The United States Supreme Court addressed indirect violations of the Sixth
Amendment in Henry, 447 U.S. at 274, 100 S. Ct. at 2189, holding the government’s use
of an informant violated the defendant’s right to counsel. There, the FBI used a paid
informant housed in the same cellblock as the defendant to obtain information from the
defendant. The FBI agent told the informant to “be alert to any statements made by federal
prisoners [including the defendant], but not to initiate any conversation with or question”
the defendant about the charged crime, a bank robbery. Henry, 447 U.S. at 266, 100 S. Ct.
at 2184-85. While conversing with the defendant, the informant learned information about
the bank robbery. The informant testified at the defendant’s trial, and the defendant was
convicted. The Supreme Court reversed, holding that the information was obtained in
violation of the defendant’s right to counsel because the government “intentionally
creat[ed] a situation likely to induce [the defendant] to make incriminating statements
without the assistance of counsel.” Henry, 447 U.S. at 274, 100 S. Ct. at 2189. The
Supreme Court emphasized several factors, including that the informant was acting under
instructions from the government and paid for his services, the informant was “ostensibly
12
no more than a fellow inmate” of the defendant, and the defendant was in custody and
under indictment during the conversations with the informant. Henry, 447 U.S. at 270, 100
S. Ct. at 2187.
¶25 Regarding the government’s arrangement with the informant, the Supreme Court
stated that the paid informant “deliberately used his position to secure incriminating
information from” the defendant without counsel present. Henry, 447 U.S. at 270, 100
S. Ct. at 2187. The government had paid the informant for over a year on a contingent-fee
basis, incentivizing the informant to produce useful information. Further, the federal agent
knew the informant could access the defendant and “engage him in conversations without
arousing [the defendant’s] suspicion.” Henry, 447 U.S. at 270-71, 100 S. Ct. at 2187. The
Supreme Court noted that even if it accepted the FBI agent’s “statement that he did not
intend” for the informant to “take affirmative steps to secure incriminating information,”
the agent “must have known that such propinquity likely would lead to that result.” Henry,
447 U.S. at 270-71, 100 S. Ct. at 2187. And while the government argued that federal
agents instructed the informant not to question the defendant, the informant’s testimony
demonstrated that he “was not a passive listener,” but rather had conversations with the
defendant which produced the incriminating information. Henry, 447 U.S. at 271, 100
S. Ct. at 2187.
¶26 With respect to the defendant’s incarceration, the Supreme Court emphasized the
“powerful psychological inducements to reach for aid when a person is in confinement.”
Henry, 447 U.S. at 274, 100 S. Ct. at 2188-89 (citing Miranda v. Arizona, 384 U.S. 436,
13
467, 86 S. Ct. 1602, 1624 (1966)). “[T]he mere fact of custody imposes pressures on the
accused; confinement may bring into play subtle influences that will make him particularly
susceptible to the ploys of undercover Government agents.” Henry, 447 U.S. at 274, 100
S. Ct. at 2188-89. The Supreme Court noted that the paid informant’s “conduct and
apparent status as a person sharing a common plight” facilitated the incriminating
conversations. Henry, 447 U.S. at 274, 100 S. Ct. at 2189. “Conversation stimulated in
such circumstances may elicit information that an accused would not intentionally reveal
to persons known to be Government agents.” Henry, 447 U.S. at 273, 100 S. Ct. at 2188.
¶27 The Supreme Court next applied the deliberate elicitation standard in Moulton.
There, the defendant’s accomplice agreed to cooperate with law enforcement on condition
that no further charges would be filed against him. Moulton, 474 U.S. at 163, 106 S. Ct. at
480. The government arranged for the informant to wear a wire while meeting with the
defendant. At the meeting, the informant discussed the defendant’s pending charges,
repeatedly pressed the defendant for details of the crime, and encouraged the defendant to
describe his plan to kill witnesses. Moulton, 474 U.S. at 164-65, 106 S. Ct. at 481. Because
of the accomplice relationship between the defendant and informant, the informant’s
“engaging [of the defendant] in active conversation about their upcoming trial was certain
to elicit” incriminating information. Moulton, 474 U.S. at 177 n.13, 106 S. Ct. at 487.
Consequently, the informant’s participation “in this conversation was ‘the functional
equivalent of interrogation.’” Moulton, 474 U.S. at 177 n.13, 106 S. Ct. at 487 (quoting
Henry, 447 U.S. at 277, 100 S. Ct. at 2190 (Powell, J., concurring)). The Supreme Court
14
stated that the government’s “knowing exploitation” of such an opportunity to confront the
defendant without counsel present “is as much a breach of the State’s obligation not to
circumvent the right to the assistance of counsel as is the intentional creation of such an
opportunity.” Moulton, 474 U.S. at 176, 106 S. Ct. at 487. Accordingly, the Supreme
Court held that the government’s knowing circumvention of the defendant’s right to
counsel violated the Sixth Amendment. Moulton, 474 U.S. at 176, 106 S. Ct. at 487.
¶28 Finally, in Kuhlmann, the Supreme Court addressed the deliberate elicitation
standard in the context of an informant who was placed in close proximity to the defendant
but “made ‘no effort to stimulate conversations about the crime charged.’” Kuhlmann,
477 U.S. at 456, 106 S. Ct. at 2628 (quoting Henry, 447 U.S. at 271 n.9, 100 S. Ct. at 2187).
Under these circumstances, there was no violation of the defendant’s Sixth Amendment
right to counsel. Kuhlmann, 477 U.S. at 456, 106 S. Ct. at 2628. The Supreme Court noted
that the officer instructed the informant to merely listen to the defendant, and the informant
obeyed. The informant did not ask the defendant questions about the pending charges, but
only listened to the defendant’s unsolicited statements. Kuhlmann, 477 U.S. at 460-61,
106 S. Ct. at 2630-31. The Supreme Court noted that merely showing that “an informant,
either through prior arrangement or voluntarily, reported [a defendant’s] incriminating
statements to the police,” is insufficient to demonstrate a violation of the right to counsel.
Kuhlmann, 477 U.S. at 459, 106 S. Ct. at 2630. Instead, a defendant must show “that the
police and their informant took some action, beyond merely listening, that was designed
15
deliberately to elicit incriminating remarks.” Kuhlmann, 477 U.S. at 459, 106 S. Ct. at
2630.
¶29 These decisions provide the Sixth Amendment deliberate elicitation standard. Here,
for Hardy to show the jailhouse informants deliberately elicited incriminating information
from him in violation of his right to counsel, he must demonstrate the informants were
acting as State agents when they obtained the incriminating information, and that they
deliberately elicited that information. See Randolph v. California, 380 F.3d 1133, 1144
(9th Cir. 2004). There is no dispute that Orth and Hope deliberately elicited information
from Hardy after first meeting with Detective Cochran. Orth and Hope repeatedly asked
Hardy direct questions about the homicides. Orth challenged Hardy’s statements to get to
the truth, and he admits he “was a little bit swindly because [he] was talking God and being
his friend. . . .” Hope testified that to try and learn more information from Hardy, he
pretended to help Hardy fabricate an alibi. The efforts of both Orth and Hope to elicit
information from Hardy went far beyond merely “stimulat[ing] conversations about the
crime charged.” Randolph, 380 F.3d at 1144 (quoting Henry, 447 U.S. at 271 n.9, 100
S. Ct. at 2187).
¶30 The parties contest whether Orth and Hope acted as state agents. The State argues
that it must either have entered into an express or implied agreement to provide an
informant a benefit in exchange for informing or it must explicitly instruct an informant to
obtain information from the defendant for the informant to transform into a state agent.
The State contends that Hope and Orth did not become state agents after their first
16
interviews with Detective Cochran because there was neither an agreement to provide the
informants a benefit nor did the state instruct the informants to elicit additional information
from Hardy. Hardy argues that when Detective Cochran first met with each informant, he
learned the informants had deliberately placed themselves into positions of trust with
Hardy, were actively investigating him, and had the intent to continue eliciting information
from him. Accordingly, by sending the informants back into their cells without even
instructing them to stop questioning Hardy, the State knowingly exploited an opportunity
to investigate Hardy surreptitiously.
¶31 This Court has not addressed when a jailhouse informant transforms into a
government agent for purposes of the right to counsel. In determining whether an
informant is a government agent, a court must consider all the facts and circumstances
surrounding the relationship between the informant and the state. See Henry, 447 U.S. at
271, 100 S. Ct. at 2187 (holding a “combination of circumstances [was] sufficient to
support” a finding of an agency relationship); see also Randolph, 380 F.3d at 1144; Ayers
v. Hudson, 623 F.3d 301, 311-12 (6th Cir. 2010); Depree v. Thomas, 946 F.2d 784, 793-94
(11th Cir. 1991) (“There is, by necessity, no bright-line rule for determining whether an
individual is a government agent. . . .”); State v. Marshall, 882 N.W.2d 68, 95 (Iowa 2016)
(stating no “mechanical checklist . . . exists for determining whether an informant is an
agent”).
¶32 An express agreement to provide compensation or some benefit to an informant in
exchange for information is evidence of an agency relationship, but it is not conclusive.
17
See Henry, 447 U.S. at 270-71, 100 S. Ct. at 2187; Randolph, 380 F.3d at 1144. In
Randolph, the Ninth Circuit held a jailhouse informant acted as a state agent when he was
placed back into the defendant’s cell after meeting with law enforcement, even though the
government did not expressly agree to compensate the informant. Randolph, 380 F.3d at
1144. The court recognized that whether there was an express agreement for compensation
was relevant evidence for determining an informant’s status, but not dispositive. Although
the state told the informant not to expect any benefits for testifying, “it is not the
government’s intent or overt acts that are important; rather, it is the ‘likely . . . result’ of
the government’s acts.” Randolph, 380 F.3d at 1144 (quoting Henry, 447 U.S. at 271, 100
S. Ct. at 2187). Analyzing “the relationship between the informant and the State, not the
compensation the informant receives, . . . is the central and determinative issue.”
Randolph, 380 F.3d at 1144.
¶33 In Randolph, the informant and defendant were cellmates. Law enforcement
became aware of the informant when he gave them a letter asking for leniency, which was
interpreted as an offer to testify against the defendant. After the informant met with law
enforcement several times, he relayed incriminating information learned from the
defendant, including the defendant’s confession to the charged murder. Randolph, 380
F.3d at 1139. Evidence showed the informant clearly hoped for leniency, and the state and
the informant consciously decided to cooperate with one another. Randolph, 380 F.3d at
1144. Consequently, because the state placed the informant back in a cell with the
defendant after indicating “his willingness to cooperate with the prosecution,” the state
18
“‘intentionally create[d] a situation likely to induce [the defendant] to make incriminating
statements without counsel’s assistance.’” Randolph, 380 F.3d at 1146 (quoting United
States v. Kimball, 884 F.2d 1274, 1278 (9th Cir. 1989)). In these circumstances, the
government took the risk that the informant might violate the Sixth Amendment by
deliberately eliciting such information. Randolph, 380 F.3d at 1146.
¶34 However, the Ninth Circuit held no government agency relationship was created
when there was neither an express agreement for compensation nor a hope for leniency.
Brooks v. Kincheloe, 848 F.2d 940, 945 (9th Cir. 1988). In Brooks, the defendant and
informant were cellmates. Detectives approached the informant, who refused to provide
information without his attorney present. Promising nothing in return, the detectives sent
the informant back to the shared cell and asked him to remember anything the defendant
might say. Brooks, 848 F.2d at 943. A few days later, the informant relayed the
defendant’s incriminating disclosures. Subsequently, the informant was transferred to
another jail and paid $100. Brooks, 848 F.2d at 942. The Ninth Circuit concluded that the
state “did not intentionally create a situation likely to induce the defendant to make
incriminating statements.” Brooks, 848 F.2d at 945. Because the detectives did not ask
the informant to elicit information from the defendant or promise to pay him for that
information, no agency relationship was created. Brooks, 848 F.2d at 944-45. The Ninth
Circuit explicitly distinguished the circumstances in Randolph from those in Brooks, noting
that in Randolph, the informant became a state agent because the state “knew or should
19
have known that [the informant] believed that he would receive leniency if he elicited
incriminating statements from” the defendant. Randolph, 380 F.3d at 1146.
¶35 Here, Detective Cochran made no promises to Orth and Hope in exchange for their
information on Hardy. While Orth wrote in his first letter to the county attorney that he
was interested in “negotiations,” he testified that he used that word because it came from
his attorney. Orth testified that he did not ask for anything for providing information on
Hardy. Further, the District Court found both Orth and Hope were motivated by their
dislike of Hardy. Orth testified that he became a witness because he disagreed with Hardy’s
treatment of his child and wanted to provide closure to the victim’s families by locating
the bodies. Hope testified that he told his attorney he was not seeking anything in return
for his testimony and stated he was not “doing this for gain, for a time off of my sentence,
nothing.” Instead, Hope testified that he became a witness because he felt Hardy was
remorseless for his actions and “for the families because [he knew] what [Hardy] admitted
to [him].” As the District Court found, Orth and Hope were acting on their own initiative.
An informant who acts on their own initiative, whether motivated by conscience or “an
unencouraged hope to curry favor,” does not necessarily transform into a state agent absent
other circumstances showing their actions are attributable to the State. Thomas v. Cox,
708 F.2d 132, 135-36 (4th Cir. 1983); see also Commonwealth v. Foxworth, 40 N.E.3d
1003, 1011 (Mass. 2015).
¶36 Next, evidence that the state instructed an informant to gather information on a
defendant may show an agency relationship. See Henry, 447 U.S. at 270, 100 S. Ct. at
20
2187 (concluding that “acting under instructions as a paid informant for the Government”
was one important factor showing agency relationship); Kuhlmann, 477 U.S. at 460, 106
S. Ct. at 2630 (holding no agency relationship was created when the government instructed
the informant not to question the defendant and the informant heeded that instruction);
Manns v. Texas, 122 S.W.3d 171, 187 (Tex. Crim. App. 2003) (discussing cases finding
instructions such as “keep your ears open” were insufficient to create agency relationship);
Brooks, 848 F.2d at 945 (“[D]etectives did not request [the informant] to elicit any
information from defendant[.]”); McBeath v. Commonwealth, 244 S.W.3d 22, 33 (Ky.
2007) (finding agency relationship when informant “was told to report back what was said
in [the defendant’s] exact words. This informed [the informant] that the police wanted
more information about the crime and induced him to obtain that information[.]”). Here,
Detective Cochran did not instruct the informants to gather information, to report back if
they learned anything new, or even to keep their ears open. Although Detective Cochran
ended the first meeting with Orth by arranging to meet a second time, he did so specifically
so Orth could gather his notes to facilitate a more effective interview. Detective Cochran
did not suggest he was interested in any new information gathered by Orth. In fact,
Detective Cochran explicitly instructed Orth not to take any more of Hardy’s personal
property. Therefore, the informants were not expressly instructed or encouraged by the
State to elicit information from Hardy at any point during their interviews.
¶37 Hardy argues that although the State did not instruct the informants to obtain
information from him, the State knew the informants would likely do so after being
21
returned to their cells. By not explicitly discouraging the informants from interrogating
Hardy, Hardy argues the State “knowing[ly] exploit[ed] . . . an opportunity to confront”
him without the presence of counsel. See Moulton, 474 U.S. at 176, 106 S. Ct. at 487.
Certainly, an agency relationship may be created when the State takes advantage of an
informant’s access and intent to deliberately elicit incriminating information from a
defendant; however, it is generally insufficient on its own. Additional facts must be present
demonstrating the informant’s actions are attributable to the State. See Henry, 447 U.S. at
271, 100 S. Ct. at 2187. In Henry, the government told a paid informant to obtain
information on the defendant, but explicitly instructed him not to question the defendant
about the charged crime. The Supreme Court rejected the government’s argument that it
could not be held responsible for an informant’s actions when it instructed the informant
not to question the defendant, reasoning that the government “must have known” the
informant was likely to do so regardless. Henry, 447 U.S. at 270, 100 S. Ct. at 2187.
Because the informant was paid on a contingent-fee basis, he was highly motivated to elicit
information from the defendant despite instructions to the contrary. Henry, 447 U.S. at
270-71, 100 S. Ct. at 2187. In Moulton, the Supreme Court similarly rejected the
government’s argument that instructing the informant to “not interrogate” the defendant
was sufficient to prevent the formation of an agency relationship. Moulton, 474 U.S. at177 n.14, 106 S. Ct. at 488. The Supreme Court noted that under the circumstances, these
instructions “were necessarily inadequate.” Moulton, 474 U.S. at 177 n.14, 106 S. Ct. at
488. Because the government arranged for the informant to wear a wire to a meeting
22
between the informant and defendant when it knew the only subject to be discussed at that
meeting was the defendant’s charges, “a Sixth Amendment violation was inevitable”
regardless of how the government instructed the informant. Moulton, 474 U.S. at 176-77,
177 n.14, 106 S. Ct. at 488.
¶38 The circumstances under which Orth and Hope elicited information from Hardy are
unlike those in Henry and Moulton. True, Detective Cochran knew—perhaps even
hoped—the informants would deliberately elicit information from Hardy without counsel
present and did not instruct the informants to stop the interrogations. Nevertheless, no
additional facts demonstrate the informants’ actions should be attributed to the State.
Unlike Henry, no agreement or expectation about compensation incentivized the
informants. Unlike Moulton, Hope and Orth were not wired; they were not certain to learn
additional information from Hardy; and the State did not actively intervene to take
advantage of the opportunity being cellmates with Hardy presented. Further, although
Detective Cochran did not instruct the informants to stop interrogating Hardy, he also did
not encourage that behavior. With Orth, Detective Cochran explicitly instructed him not
to take any more of Hardy’s personal property. Consequently, when the informants elicited
information from Hardy after their first interviews, they did so entirely of their own accord
without any explicit or implicit direction, encouragement, or intervention by the State.
¶39 In conclusion, no facts in the record demonstrate either Hope or Orth were acting as
government agents when they elicited information from Hardy after meeting with the
detectives. There is no evidence of any agreement, benefit, or instructions, or of any other
23
State actions which transformed the informants into State agents. Accordingly, Hardy’s
right to counsel was not violated.
¶40 2. Was the jury fully and fairly instructed on the applicable law pertaining to witness
credibility?
¶41 At trial, the District Court provided a pattern witness credibility instruction and a
pattern instruction on evaluating a defendant’s confession or admission. Hardy proposed
a specific instruction regarding the credibility of informant testimony, which stated:
[Testimony of Informants]
You heard testimony from inmates Anton Orth, Martin Hope, John
Braunreiter, and/or Bryan Palmer. Their testimony was received in evidence
and may be considered by you, but you should carefully scrutinize their
testimony given and the circumstances under which each witness has
testified, and every matter in evidence which tends to indicate whether the
witness is worthy of belief. Consider each witness’ intelligence, his motives,
his access to secondary sources including the Defendant’s paperwork, his
state of mind, his demeanor and manner while on the witness stand. All
evidence of a witness whose self-interest is shown from either benefits
received, threats or promises made, or any attitude of the witness which
might tend to prompt testimony either favorable or unfavorable to the
accused should be considered with caution and weighed with care.
The State objected and argued the proposed instruction was “direct commentar[y] on the
witnesses’ testimony . . . that appear[s] to me to be geared to telling the jury to distrust a
certain witness.” Hardy responded that the informants were “not typical witness[es]” and
that the proposed instruction “is routinely given in federal courts.” Hardy added that the
informants’ access and review of his paperwork while incarcerated with him justified the
additional cautionary instruction about analyzing their testimony. The District Court
24
acknowledged that the informants’ “credibility is an issue,” but refused Hardy’s proposed
instruction.
¶42 Hardy argues the District Court abused its discretion by refusing to give his
proposed informant instruction. He asserts that the court should have instructed the jury to
view the testimony of the jailhouse informants with greater caution than testimony from
ordinary witnesses given the inherent unreliability of jailhouse informants. Hardy relies
on State v. Grimes, where we held a cautionary instruction should be given “when a
government informant motivated by personal gain rather than some independent law
enforcement purpose provides testimony. . . .” State v. Grimes, 1999 MT 145, ¶ 45, 295
Mont. 22, 982 P.2d 1037. We determined the cautionary instruction was necessary in
Grimes because an instruction to view the defendant’s oral admissions and confessions
with caution was insufficient on its own to adequately instruct the jury. Grimes, ¶¶ 43-45.
Conversely, the State cites to State v. DuBray, 2003 MT 255, ¶ 92, 317 Mont. 377, 77 P.3d
247, where we held no cautionary instruction was required when an informant testifies
because the general credibility instruction was sufficient.
¶43 This Court reviews jury instructions for an abuse of discretion. Devereaux, ¶ 20.
We must determine whether, taken as a whole, the instructions fully and fairly instruct as
to the applicable law. Devereaux, ¶ 20. “If the instructions are erroneous in some aspect,
the mistake must prejudicially affect the defendant’s substantial rights in order to constitute
reversible error.” State v. Gerstner, 2009 MT 303, ¶ 15, 353 Mont. 86, 219 P.3d 866. See
also Dubray, ¶ 92 (“[T]o constitute reversible error, the district court’s actions must affect
25
substantial rights of the party.”) (citing State v. Long, 274 Mont. 228, 234, 907 P.2d 945,
948 (1995)). The question, thus, is whether the instruction “adequately addresses witness
motive, bias or prejudice, and bad character for truthfulness.” Long, 274 Mont. at 234, 907
P.2d at 949. “Where the proposed instruction is adequately covered by a given instruction,
it is not error for the trial court to refuse the proposed instruction.” Long, 274 Mont. at
234-35, 907 P.2d at 949.
¶44 Hardy’s proposed instruction named the four informants and directed the jury to
scrutinize their testimony in particular, taking into consideration specific factors, such as
their “access to secondary sources including the Defendant’s paperwork.” However,
instead of instructing the jury as to specific witnesses and facts, the District Court gave
several pattern instructions on witness credibility. The jury was instructed to “carefully
consider all the testimony given, the circumstances under which each witness has testified,
and every matter in evidence that tends to indicate whether a witness is worthy of belief.”
The jury was further directed to consider:
1. The appearance of the witnesses on the stand, their manner of testifying,
their apparent candor, their apparent fairness, their apparent intelligence,
their knowledge and means of knowledge on the subject upon which they
have testified.
2. Whether the witnesses have an interest in the outcome of the case or any
motive, bias or prejudice.
3. The extent to which the witnesses are either supported or contradicted by
other evidence in the case.
4. The capacity of the witnesses to perceive and communicate information.
5. Proof that the witness has a bad character for truthfulness.
26
Further, the jury was instructed on how to view Hardy’s admissions and confessions, as
follows:
The circumstances under which the [admission or confession] was made may
be considered in determining its credibility or weight. You are the exclusive
judges as to whether an admission or a confession was made by the
Defendant, and if so, whether such statement is true in whole or in part. If
you should find that any such statement is entirely untrue, you must reject it.
If you find it is true in part, you may consider that part which you find to be
true.
Evidence of an unrecorded oral admission or oral confession of the
Defendant should be viewed with caution.
Accordingly, the jury was instructed to determine the credibility of each informant,
including their knowledge, how they gained that knowledge, their self-interest, criminal
records, the extent to which each witness was “supported or contradicted by other
evidence,” and to view testimony about Hardy’s unrecorded confessions and admissions
with caution. Therefore, the jury was specifically directed to subject critical portions of
Hope’s, Orth’s, and Palmer’s testimony to greater scrutiny.
¶45 Further, at trial each testifying informant was subjected to thorough
cross-examination. Hardy questioned Orth, Hope, and Palmer extensively about their
previous criminal charges, their interactions with each other while incarcerated, their
motives for testifying against Hardy, and whether they sought, received, or expected a
benefit for testifying. Palmer testified about his memory problems, mental health
diagnoses, multiple felonies, and that he served as a confidential informant “a few” times.
27
Hope explained why he disclosed his cooperation to his federal defender and admitted he
had “been dishonest” and a drug addict most of his life.
¶46 Hardy extensively questioned Orth about whether he asked for or received any
benefits for testifying, the disposition of his criminal sentence and circumstances leading
to that charge, his previous experience as an informant, and his brain injury and resulting
memory problems. Orth also admitted he had “a long history of drugs” and that given his
brain injury, he was unsure how his drug use might impact his memory. Hardy then asked
Orth about his inconsistent testimony as to whether he overheard Hardy soliciting
Braunreiter to kill Karen in the following exchange:
Q: [Defense Counsel]: [D]o you recall your response when I asked you [at
the suppression hearing] exactly what [Hardy] said to John Braunreiter?
A: [Orth]: No.
Q: You said you don’t remember anything about that. . . .
A: Well, it’s really obvious that I have issues with my memory. That is
exactly the reason that I wrote everything down. . . . Now I remember. . . .
Q: But in a previous hearing when you were under oath, you admitted that
you could not remember any solicitations that the defendant made when he
was talking to John Braunreiter.
A: I am well aware of my deficient memory.
Q: Why do you have such a poor memory?
A: I have a brain injury.
Hardy also presented the testimony of another inmate, Curtis Alexander, who testified as
to Orth’s reputation in the jail for dishonesty, that Orth was “a known jailhouse snitch,”
28
and told the jury Orth was “probably testifying for personal gain.” Finally, Orth and Hope
were repeatedly asked about their access to Hardy’s paperwork, whether they ever looked
at it without Hardy’s permission, and how they learned inside information about Hardy’s
case and legal strategy. When cross-examined about whether he ever looked at Hardy’s
paperwork without permission, Orth admitted “[y]eah. He didn’t exactly give me consent
to it.”
¶47 We conclude the jury was made aware of facts concerning the credibility of the
jailhouse informants through thorough cross-examination and received instruction on how
to consider those facts. Further, the District Court specifically instructed the jury to view
testimony about Hardy’s admissions and confessions with caution. The jury instructions,
taken as a whole, fully and fairly instructed as to the applicable law.
¶48 3. Did the District Court violate Hardy’s rights to counsel and to present a defense
when it prevented defense counsel from commenting on a missing prosecution
witness during closing argument?
¶49 The solicitation charge in Count III was based on Hardy solicitating another
inmate—Braunreiter—to kill Karen. The State planned to call Braunreiter to testify at trial.
However, before trial began, Braunreiter indicated he would be disruptive and
noncooperative if called. The State informed the District Court of Braunreiter’s intent and
asked that the court admonish Braunreiter about proper procedure before his testimony.
The District Court agreed, but warned counsel that the witness would likely ignore the
admonishment.
29
¶50 In its opening, the State discussed Braunreiter’s statements to law enforcement
about the solicitation, stating:
Law enforcement spoke to Braunreiter, who confirmed that [Hardy] spoke
with him about killing Karen, saying that [Hardy] approached him and asked
him if he would go after her for him.
[Hardy] told Braunreiter that Karen needed to go away, and Braunreiter
asked him for $10,000.00 up front and ten thousand after but said he needed
to think about [Hardy]’s proposal. Braunreiter indicated he never did intend
to kill Karen, but he was going to take [Hardy]’s money and use it to bond
out of custody.
[Hardy] discussed, with Braunreiter, how he would pay him. He said he had
assets to liquidate and that he could . . . get the money to one of [Hardy]’s
sisters.
Hardy also discussed Braunreiter during opening, stating:
And then we have Mr. Braunreiter, who is the basis of count three. Frankly,
we don’t know what’s going to happen when the state calls Mr. Braunreiter
to the stand. He refused to participate in a court-ordered deposition. He
refused to be put under oath or to tell the truth. He has now written letters
indicating that he’s not going to testify. . . . [T]hat everybody else was on
meth, and he was on meth when he talked to detectives and told them what
was happening.
The State ultimately chose not to call Braunreiter to testify.
¶51 Hardy indicated concern over Braunreiter’s absence on multiple occasions. Hardy
asked Detective Cochran on cross-examination if he knew why the State did not call
Braunreiter. The court sustained the State’s objection to the question. Hardy later raised
the issue again while outside the presence of the jury, stating “that we can make a very
good argument, in closing, that the state has not met its burden of proof on [Count III], in
part because John Braunreiter did not testify.” He asserted that under § 26-1-303, MCA,
30
he could argue the jury should view the evidence on Count III with mistrust because the
State had the power to present stronger evidence by calling Braunreiter as a witness but
chose not to. As a result, Hardy contended he could “argue that’s a huge hole in their case,
and they haven’t met their burden by not calling the main witness that’s the basis of”
Count III. Hardy further stated he was only asking to be allowed to “touch on”
Braunreiter’s absence in closing, since “[t]he jury did not have the benefit of hearing from
him, and that’s something that they should consider.” Hardy also had the following
exchange with the District Court:
[Defense Counsel]: Your Honor, [Braunreiter] is the basis of count three.
He’s the heart of that charge. . . .
[The Court]: Well, he was the main, but there’s other evidence that shows
that. It’s not as good or it’s not what you would prefer if you’re . . . trying
it. But . . . the fact that they don’t have it isn’t necessarily attributable. It
doesn’t mean they didn’t want to call him.
[Defense Counsel]: And I’m not saying that. I just want to make the point
that he wasn’t here. . . . And that’s something the jury should consider.
[The Court]: I’ll think about it. I think technically . . . you shouldn’t be able
to. But on the other hand, I understand . . . why you would want to say that.
¶52 The State argued to the court that though Braunreiter’s testimony would be
favorable to the State, he would not cooperate and testify. Further, the State asserted that
Hardy could “criticize the state’s evidence that was presented and say that there was not
sufficient evidence to prove the charge without directly commenting on the witnesses that
the state did or did not call. . . .” The State also stated that if the court allowed Hardy to
31
comment in closing on Braunreiter’s absence, it should be allowed to explain why he was
not called.
¶53 The court concluded that Hardy could not attribute the failure to produce Braunreiter
to the State, so Hardy could not use Braunreiter’s absence “to show that the state is not
calling him because his testimony would conflict . . . with their charge.” Hardy interjected
to argue his belief that “the fact that [Braunreiter] didn’t testify goes to the overall argument
for proof beyond a reasonable doubt.” The court responded that the issue was whether
Braunreiter was qualified to testify. The court stated, “[Y]ou don’t get to say, ‘Where’s
Braunreiter? . . .’ unless you can show the state could have called him, and that he would
have testified.” The court explained that if Braunreiter was not willing to testify under oath
and instead wanted to make an outburst, he did not qualify as a witness. The court stated
its belief that “that’s why the state didn’t call” Braunreiter, to which the State responded,
“I think that was part of it, yes, Your Honor.” The District Court concluded that “[a]t this
stage,” Hardy could not “comment on the state’s failure to call” Braunreiter.
¶54 While settling jury instructions, Hardy explained that he was “still struggling with
how [to] deal with John Braunreiter not testifying when he is the basis of count three.
Again, I think I should be able to, at least, point that out to the jury, that he could have been
called, and he wasn’t.” Finally, during Hardy’s closing argument, he discussed Count III
and the evidence underlying the solicitation charge. The following exchange took place:
[Defense Counsel]: Count three is based on John Braunreiter. I drove to the
prison to take Mr. Braunreiter’s deposition. He refused to participate. He
wouldn’t even go under oath and talk to me.
32
[The State]: Your Honor, I object. This is –
[The Court]: That’s sustained.
[Defense Counsel]: Where is Mr. Braunreiter in this trial?
[The State]: Object again, Your Honor.
[The Court]: That’s sustained. The jury will disregard this.
Hardy again referred to Braunreiter’s absence when arguing to the jury that the State did
not meet its burden of proof on the two solicitation counts. Hardy argued that “based on
these jailhouse informants with their serious character flaws, one of whom didn’t even
participate,” the State “has completely failed to meet its burden on” Counts III and IV. The
State did not object.
¶55 On appeal, Hardy argues that his right to present a complete defense and right to
counsel were violated when the District Court prohibited him from arguing in closing about
Braunreiter’s absence at trial. Criminal defendants have a constitutional right to counsel
and to “a meaningful opportunity to present a complete defense.” State v. Twardoski, 2021
MT 179, ¶ 31, 405 Mont. 43, 491 P.3d 711. A “closing argument for the defense is a basic
element of the adversary factfinding process in a criminal trial,” therefore a defendant has
a right to have his counsel “make a closing summation” that is “a proper argument on the
evidence and the applicable law. . . .” Herring v. New York, 422 U.S. 853, 858, 860, 95
S. Ct. 2550, 2553-54 (1975). For the defendant, “closing argument is the last clear chance
to persuade the trier of fact that there may be reasonable doubt. . . .” Herring, 422 U.S. at
862, 95 S. Ct. at 2554. While the complete denial of a closing argument violates the right
33
to counsel, the right is not “uncontrolled or even unrestrained.” Herring, 422 U.S. at 862,
95 S. Ct. at 2554. Rather, it “is subject to reasonable restrictions.” United States v.
Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261, 1264 (1998). The trial court has broad
discretion to control the duration and limit the scope of closing arguments. The court “may
terminate argument when continuation would be repetitive,” and “ensure that argument
does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of
the trial.” Herring, 422 U.S. at 862, 95 S. Ct. at 2554.
¶56 A party can generally comment on the opposing party’s “absence of . . . or . . . failure
to present evidence or other witness testimony to support his or her otherwise unsupported
testimonial assertions at trial, opening statement assertions of fact . . . or an asserted . . .
theory of the case.” State v. Miller, 2022 MT 92, ¶ 28, 408 Mont. 316, 510 P.3d 17. See
State v. Makarchuk, 2009 MT 82, ¶¶ 11, 22-26, 349 Mont. 507, 204 P.3d 1213 (permitting
prosecutor’s comments in closing criticizing defendant for failing to call particular
witnesses and present phone records supporting his assertion that he made a relevant phone
call). Here, the District Court exercised its discretion to ensure the orderly and fair nature
of the proceeding when it limited Hardy’s ability to argue the State failed to produce
Braunreiter. Braunreiter clearly demonstrated his intent to disrupt proceedings and air
grievances rather than testify under oath. Before the trial began, the court told Hardy and
the State that it believed Braunreiter’s threatened behavior on the witness stand would not
be impacted by any admonishment regarding proper conduct while testifying. After the
State decided not to call Braunreiter, the court concluded that his absence was not
34
attributable to the State since Braunreiter refused to cooperate as a witness and testify. The
District Court concluded that Hardy could not comment in closing on the State’s failure to
call Braunreiter or show that the State did not call the witness because his testimony would
be averse to the State’s case. Accordingly, the court sustained the State’s objection when
defense counsel rhetorically asked the jury “Where is Mr. Braunreiter in this trial?”
Notably, despite the District Court’s ruling, Hardy was not entirely prohibited from arguing
to the jury that the State failed to meet its burden of proof as to Count III by not calling
Braunreiter. In defense counsel’s closing argument, he told the jury that “based on these
jailhouse informants with their serious character flaws, one of whom didn’t even
participate,” the State “has completely failed to meet its burden on” Counts III and IV.
There was no objection to this statement.
¶57 We conclude that, even assuming it was error to limit Hardy’s ability to comment
on the State’s failure to call Braunreiter, any error was clearly harmless. Hardy argues the
limitation on closing was structural error requiring automatic reversal. A structural error
“is typically of constitutional dimensions, precedes the trial, and undermines the fairness
of the entire trial proceeding,” therefore it is presumptively prejudicial and automatically
reversible. State v. Van Kirk, 2001 MT 184, ¶¶ 38-39, 306 Mont. 215, 32 P.3d 735.
Examples of structural errors include the lack of an impartial judge, errors in selecting the
jury, and a total deprivation of the right to counsel. Van Kirk, ¶ 39. Conversely, a trial
error “typically occurs during the presentation of a case to the jury” and “is amenable to
qualitative assessment by a reviewing court for prejudicial impact relative to the other
35
evidence introduced at trial.” Van Kirk, ¶ 40. Such error is subject to harmless error
review. Van Kirk, ¶ 40.
¶58 We have previously held the deprivation of a defendant’s Sixth Amendment right
to present a complete defense is a trial error subject to harmless error review. See State v.
Mercier, 2021 MT 12, ¶ 31, 403 Mont. 34, 479 P.3d 967 (citing United States v. Carter,
907 F.3d 1199, 1210 (9th Cir. 2018)); Crane v. Kentucky, 476 U.S. 683, 691, 106 S. Ct.
2142, 2147 (1986) (concluding alleged violation of the right to present a complete defense
is subject to harmless error analysis). In harmless error review, we examine the remaining
evidence, considering “the importance of the witness’ testimony in the prosecution’s case,
whether the testimony was cumulative, [and] the presence or absence of evidence
corroborating or contradicting the testimony of the witness on material points.” Mercier,
¶ 31 (internal punctuation omitted; citations omitted). To determine whether an error was
harmless, there must be “no reasonable possibility that the inadmissible evidence might
have contributed to the conviction,” looking to whether “the fact-finder was presented with
admissible evidence that proved the same facts as the tainted evidence.” Van Kirk, ¶ 47.
¶59 While the State discussed Braunreiter’s testimony in opening and thereafter failed
to call him as a witness, it presented the jury with admissible evidence that proved those
same facts to which Braunreiter would have testified. In opening, the State told the jury
Braunreiter said Hardy approached him soliciting him to kill Karen because she had to go,
asked for $10,000 up front and another $10,000 after, and discussed that he would pay this
amount through his sister by liquidating his assets. The State also said Braunreiter never
36
intended to kill Karen but intended to take Hardy’s money to “use it to bond out of
custody.”
¶60 At trial, Orth testified that he overheard a conversation between Hardy and
Braunreiter that took place in Braunreiter’s jail cell on October 23, 2017. Orth testified
that he walked in on the conversation where Hardy solicited Braunreiter to “hit” Karen or
“take her out,” and recalled that Hardy said he would pay Braunreiter $10,000, through
Hardy’s sister, and then another $10,000 when it was done. Orth also heard a second
conversation with similar substance the next day where Hardy was negotiating with
Braunreiter, offering to post Braunreiter’s bond so he could get out of jail to kill Karen,
and once again said he would pay Braunreiter $10,000 up front and another $10,000 after,
through his sister. While Hardy did not use the word “kill,” Orth testified that everyone
knew a “hit” referred to murder, and that he “absolutely” believed Hardy was serious when
he solicited Braunreiter to kill Karen. Orth further testified that he witnessed Hardy talking
to Braunreiter about tracking down Hardy’s friend in California to “beat[] him down for
the money that he took from Hardy and finding out where his mom lives . . . and getting
whatever’s left in payment for the hit on Karen.” On cross-examination, Orth admitted
that at the suppression hearing, he had testified that he did not remember Hardy soliciting
Braunreiter, but explained that he had a poor memory as a result of a brain injury and drug
use, which is why he took notes about the interaction.
¶61 Detective Cochran then corroborated Orth’s account that Hardy, “when talking
about how he would get paid for murdering Karen, said that he gave his financial power or
37
power—his—the power of attorney to a family member.” Detective Cochran testified that
he found evidence of this financial arrangement while monitoring Hardy’s incoming and
outgoing mail at the jail. Detective Cochran also testified about notations Hardy wrote in
his Bible that “death equals freedom” and “death to Karen” with an arrow drawn between
the two phrases, and notations referring to Karen as a harlot. Detective Cochran also
discussed drawings found in Hardy’s cell indicating his desire to kill Karen. The drawings
showed investigators, prosecutors, and witnesses in the case “Xed out in red” with
“doomed” written over them. Another drawing showed Orth, Braunreiter, and Palmer as
stick figures. One drawing had Charles’s name on it, who was the friend Hardy referred
to who had his money in California. Yet another drawing had Braunreiter, Orth, and
Palmer in a cage. Some pictures had the words “false witnesses” written on them.
¶62 The State presented the jury with admissible evidence proving the same facts it
asserted in opening. Further, the State presented evidence through Detective Cochran
corroborating details about how Hardy’s sister had power of attorney, the existence of
Hardy’s friend Charles in California, and Hardy’s drawings in his Bible with implicit
threats to Karen as well as Hardy’s pictures showing witnesses with red Xs over them and
the words “doomed” and “false witnesses.” Given the evidence presented at trial that
Hardy solicited Braunreiter to kill Karen, Braunreiter’s refusal to testify under oath,
Hardy’s closing argument to the jury that the State failed to meet its burden of proof on
Count III and reference to Braunreiter’s absence, there is no reasonable possibility that the
limitation on closing contributed to Hardy’s convictions. Accordingly, we hold that any
38
error in limiting Hardy’s ability to comment on Braunreiter’s absence in closing argument
was harmless.
¶63 4. Should this Court exercise plain error review to consider whether Hardy’s
allegations of prosecutorial misconduct and other trial errors deprived him of a fair
trial?
¶64 Hardy contends that his convictions should be reversed because of the prosecution’s
misconduct throughout the trial and asks the Court to review this unpreserved issue under
the plain error doctrine. Hardy alleges the following misconduct combined to render his
trial fundamentally unfair: Repeatedly referring to Karen’s inadmissible prior consistent
statements; eliciting opinion testimony from a witness about Karen’s credibility;
improperly presenting prejudicial evidence of Hardy’s bad character and uncharged
misconduct; in closing, shifting the burden of proof by telling the jury each witness had to
be lying for Hardy’s story to be true; and paraphrasing Braunreiter’s hearsay statements
during opening without ultimately calling him to testify. Hardy also reasserts his
arguments from Issues 2 and 3, above, that he was further prejudiced because he was unable
to comment on Braunreiter’s absence and the jury was not instructed to view the
informants’ testimony with caution.
¶65 Criminal defendants have a right to a fair trial under the Sixth Amendment of the
United States Constitution and Article II, Section 24, of the Montana Constitution. We
generally do not address issues of prosecutorial misconduct pertaining to a prosecutor’s
statements not objected to at trial. State v. Aker, 2013 MT 253, ¶ 21, 371 Mont. 491, 310
P.3d 506. We may discretionarily review unpreserved errors that implicate a criminal
39
defendant’s fundamental constitutional rights under plain error review. State v.
Valenzuela, 2021 MT 244, ¶ 10, 405 Mont. 409, 495 P.3d 1061. We exercise plain error
review when failing to review the claimed error may result in a manifest miscarriage of
justice, leave unsettled the question of the fundamental fairness of the trial or proceedings,
or compromise the integrity of the judicial process. Valenzuela, ¶ 7 (citation omitted).
Plain error review is exercised sparingly, on a case-by-case basis, and only in this narrow
class of cases. State v. Lackman, 2017 MT 127, ¶ 9, 387 Mont. 459, 395 P.3d 477.
¶66 A prosecutor’s misconduct may be grounds for reversing a conviction and granting
a new trial if it deprives the defendant of a fair and impartial trial. State v. Hayden, 2008
MT 274, ¶ 27, 345 Mont. 252, 190 P.3d 1091 (citations omitted). However, we will not
presume prejudice from the alleged misconduct; rather, the defendant must demonstrate
that the alleged misconduct violated his substantial rights. State v. Christensen, 2020 MT
237, ¶ 79, 401 Mont. 247, 472 P.3d 622. Moreover, we do not isolate the challenged
comments on review but consider the challenged comments in the context of the trial and
the closing argument as a whole. Christensen, ¶ 79. Where multiple claimed errors are
“committed by the prosecutor, the cumulative effect of the misconduct leaves unsettled the
question of the fundamental fairness of the proceedings.” State v. Byrne, 2021 MT 238,
¶ 32, 405 Mont. 352, 495 P.3d 440 (citation omitted). Under the cumulative error doctrine,
we will reverse a conviction if numerous errors, taken together, have prejudiced a
defendant’s right to a fair jury trial. State v. Smith, 2020 MT 304, ¶ 16, 402 Mont. 206,
476 P.3d 1178.
40
¶67 Prior to trial, the District Court granted Hardy’s motion in limine excluding certain
evidence pursuant to M. R. Evid. 402-404 as irrelevant, unduly prejudicial, or inadmissible
uncharged conduct offered for propensity purposes. Hardy argues that the prosecutor
violated this order by presenting evidence that Hardy: 1) owned an assault rifle, 2) was
suspected of sexually assaulting someone, and 3) had an arrest warrant for a felony assault
or weapon charge. Hardy argues that this evidence bolstered the view of Hardy as a having
a “David Koresh” type character for violence. However, as Hardy acknowledges, a photo
of the assault rifle was inadvertently published “for a few seconds” during a presentation
of crime scene photos. As to the sexual assault, the prosecutor asked a serologist to
summarize a report completed for the State and the serologist briefly mentioned a sexual
assault examination kit among a list of items he analyzed. This brief reference did not tie
the sexual assault kit to Hardy or Z.H., and there was no further testimony on the subject.
Regarding the arrest warrant, a photo of a letter denying Hardy’s passport application
because of the outstanding arrest warrant was admitted on one of ten disks containing
various documents, and there is no indication the photo was ever displayed to the jury. To
the extent each of these three incidents constituted a violation of the District Court’s order,
they were brief, unspecific, and harmless.
¶68 Hardy also argues that the prosecutor improperly elicited testimony from Officer
Tyler Kammerzell vouching for Karen’s credibility. The prosecutor questioned Officer
Kammerzell about Karen’s demeanor while being interviewed. Officer Kammerzell
responded by describing her demeanor then adding, “[t]hroughout the entire account of the
41
interview, she seemed very specific and detailed to the point where she was believable to
us.” Witnesses “may not comment on the credibility of another witness’s testimony, nor
can a prosecutor elicit such testimony.” Byrne, ¶ 23 (quoting Hayden, ¶¶ 26, 31). We have
held the admission of opinion evidence on a witness’s credibility to be plain error when a
prosecutor elicited testimony from a witness on the credibility of two other witnesses,
including directly asking whether the witness believed they were telling the truth, and then
improperly offered his own opinion that the witnesses were believable and reliable during
closing arguments. Hayden, ¶¶ 31-32. Here, as the State admits, the statement that Karen
“was believable” was an improper comment on Karen’s credibility. But unlike in Hayden,
the comment was the sole instance of a witness improperly vouching for Karen’s credibility
throughout the trial, and the prosecutor’s question and the remainder of Officer
Kammerzell’s response were proper. This singular comment did not improperly invade
the province of the jury. See Byrne, ¶ 32 (noting the case did “not involve one isolated
improper vouching statement by one witness or one improper vouching comment during
closing argument”).
¶69 Hardy next asserts the prosecutor improperly diluted and shifted the burden of proof
during closing by stating to the jury that:
And besides which it’s not just Karen that has to be making this up for the
defendant’s story to be true. Imagine what else has to be true.
Everyone that has ever talked about what the defendant said or did would
have to be lying.
42
Hardy argues the prosecutor told the jury it could acquit Hardy only if it found all the
State’s witnesses lied under oath. Hardy argues the prosecutor’s comment told the jury to
ask whether Hardy’s account was true rather than whether there was reasonable doubt as
to Hardy’s guilt, thereby shifting the State’s burden of proof to Hardy to prove an
alternative theory of the case. The State responds that the prosecutor’s statement “was an
exaggeration,” and that the prosecutor was making an argument about the significant
amount of evidence corroborating Karen’s account.
¶70 While the prosecutor incorrectly stated all the witnesses would have to be lying, we
agree that in context, the argument was about the overwhelming amount of evidence
corroborating Karen’s story. The prosecutor went on to state:
[E]very piece of forensic evidence would also have to be wrong.
The human remains just magically appeared on the defendant’s property.
The cadaver dogs detected human decomposition for no reason. The bullet,
in the wall, just a coincidence. Someone put Korjack’s blood on the TV.
The shell casing in the fire pit. The burned box springs. The defendant’s
immediate theft and cash influx. The defendant’s notes about killing Karen.
Admitting his motive for killing them – for killing Korjack and Orozco to
Karen.
The defendant wants you to throw all that out. . . . [This is] the desperate
defense of a desperate man in the face of overwhelming evidence to the
contrary.
(Emphasis added.) Further, the jurors are presumed to have followed the repeated
instructions given to them regarding the State’s burden of proof. See State v. Smith, 2021
MT 148, ¶ 49, 404 Mont. 245, 488 P.3d 531 (“We presume the jury followed . . .
43
instructions.”). Accordingly, we do not find the prosecutor’s comment improperly shifted
the burden of proof.
¶71 Finally, Hardy argues that the State improperly and repeatedly presented Karen’s
prior consistent statements during the trial. In opening, the prosecutor told the jury what
the State’s witnesses had said to law enforcement during the investigation, rather than
stating what evidence she expected to introduce. See State ex rel. Fitzgerald v. Eighth Jud.
Dist. Ct., 217 Mont. 106, 121-22, 703 P.2d 148, 158 (1985) (in opening, “counsel may
briefly state his or her case and the evidence he or she expects to introduce to support the
same . . . if those statements are made in good faith and with reasonable ground to believe
the evidence is admissible”). Hardy argues the prosecutor therefore repeated in opening
what she anticipated would be prior consistent statements of the witnesses. Next, Hardy
argues the prosecutor elicited Karen’s prior consistent statements while questioning Officer
Kammerzell, during which the following exchange took place:
Q: Did you talk to [Karen] about specifically why she thought she needed to
be in witness protection?
A: Yeah. Earlier . . . she had stated that she believed that she saw the
defendant in the Sidney area, and it was her belief that he was trying to kill
her or harm her or her family members.
Defense counsel objected on hearsay grounds, and the District Court overruled the
objection, telling the jury that the statement was being offered for the purpose of
determining “whether it’s consistent with [Karen’s] earlier testimony.” In another instance,
Officer Kammerzell testified that when Karen reported the homicides to him, she asked
44
about the Witness Protection Program, which prompted a hearsay objection overruled by
the District Court.
¶72 Similarly, the prosecutor asked Detective Cochran on direct examination whether
Karen’s testimony “comport[ed] with the kind of things she told you in the [2016]
interview,” since Detective Cochran “heard Karen testify here, in this courtroom, as [he]
was sitting on the bench.” Detective Cochran responded that it did. Then, the prosecutor
asked Detective Cochran a series of questions about whether his investigation corroborated
specific aspects of her report. Hardy argues that the prosecutor “essentially personally
testified regarding” Karen’s account to Detective Cochran by repeatedly paraphrasing
portions of her interviews during his direct examination and asking the detective if his
investigation “corroborate[d] that report,” bore out her statements to the police, produced
evidence to support those statements, or indicated her hearsay statements were “true.” For
example, the following exchange took place:
Q: Karen told you that, when the defendant started shooting in the room, that
bullets struck everywhere in the room. Did you find any evidence of bullets
being fired in that room?
A: We did locate a bullet behind drywall in the room.
¶73 Hardy argues that by repeating Karen’s prior consistent statements in opening and
during the direct examination of Officer Kammerzell and Detective Cochran, and by asking
Detective Cochran whether Karen’s report was consistent with her trial testimony, the
prosecution improperly bolstered Karen’s testimony—the only eyewitness to the
homicides. The statements told the jury Karen had told the same story previously, making
45
it more likely jurors would assume her account was trustworthy. As Hardy argues, this
constituted prosecutorial misconduct since a prosecutor “should not bring to the attention
of the jury matters that the prosecutor knows to be inadmissible, whether by offering or
displaying inadmissible evidence, asking legally objectionable questions, or making
impermissible comments or arguments.” State v. Krause, 2021 MT 24, ¶ 26, 403 Mont.
105, 480 P.3d 222 (quotation marks omitted; citation omitted).
¶74 According to Hardy, the impact of these statements rendered the trial fundamentally
unfair since the State’s case relied heavily on Karen’s eyewitness testimony. However,
Hardy has not shown that failing to review the claimed instances of prosecutorial
misconduct would call into question the fundamental fairness of the proceedings. While
Karen was the only eyewitness to the homicides, her testimony was corroborated by
numerous other witnesses and forensic evidence. Multiple neighbors testified that after the
spring of 2013, they only saw Hardy and Z.H. around the Frenchtown home. They also
noted a horrible smell emanating from a fire on Hardy’s property that lasted roughly a
week. One neighbor described it like the smell from a burning deer carcass. A neighbor
discussed seeing deadbolts on the doors in the house, bars over the windows, and Hardy
excavating his property at night. They also noted Hardy purchased cars, snowplow
equipment, and other big items, but that the spending spree stopped a few years later, at
which point Hardy complained he had no money. Acquaintances of Hardy’s were hired to
work on the property in the summer of 2013. There was testimony that carpet and
sheetrock was removed and piled in the basement and paperwork with other names,
46
including Orozco’s, was thrown out. An acquaintance testified that he took items to a pile
to be burned, but Hardy did not want him to go near the fire pit. Contractors hired to pour
concrete that summer were paid in cash and saw a woman on the property, likely Karen.
Another person hired to do work in 2013 testified that Karen told him she did not want to
stay there, and that Hardy told him he had a friend who stole more than $100,000 from
him. Hardy then asked if he wanted to go to California with him to kill that friend and get
the money. Hardy offered to split the money with him.
¶75 McKinley corroborated Karen’s account of living with him for a few months and
described Karen’s demeanor as that of a person with PTSD. He noted that Karen talked
about missing Orozco. Hardy’s cousin Rhonda, who he calls his sister, testified that in
2013 Hardy repaid $1,500 that he owed her. Hardy flew Rhonda twice to Missoula in
2013, and on the second visit, Karen and R.J. were at the house. Rhonda testified that
Karen placed a letter in her luggage saying that Hardy was the reason Orozco was absent,
but she did not believe the letter. A woman in Wyoming testified that she had arranged in
2012 to buy a trailer from Korjack, but that later Hardy called her and asked that she make
payments to him instead of Korjack.
¶76 There was no evidence that Korjack or Orozco were alive after March 2013,
including multiple witnesses who testified that they never heard from either man again.
Orozco’s and Korjack’s mail was sent to a P.O. box that Hardy collected mail from. The
key was found at Hardy’s home. The P.O. box was renewed in August 2016 using typed
checks from Korjack’s bank account signed with a signature similar to a stamp found at
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Hardy’s home. Korjack had multiple bank accounts which he did not access after March
of 2013. Korjack’s bank records also corroborated Karen’s testimony that Korjack had
been removing money from his accounts leading up to March of 2013, and that he
purchased over $100,000 in gold and silver at that time. On March 26, 2013, Korjack
withdrew over $100,000 in a cashier’s check which was found in Hardy’s home uncashed.
One of Korjack’s bank accounts had no activity between 2013 and July 2016, at which
time the bank issued new cards and checks to Korjack. After that, the bank account became
active again. The bank deactivated the account after learning it might be fraudulent. A
person claiming to be Korjack’s nephew presented Korjack’s passport to a bank teller and
asked to update the account for Korjack. That passport was found in a safe in Hardy’s
home. Further, Walmart surveillance video captured Hardy using Korjack’s debit card
from another bank account.
¶77 Receipts corroborated Karen’s testimony that Hardy purchased a new window in
March of 2013, and glass fragments were found outside the bedroom window. During the
investigation, officers found a bullet behind the basement bedroom’s drywall, the gun that
fired that bullet, and a safe that had been cut open. Dogs trained to alert to human
decomposition alerted on one area of the property, and one dog was interested in a white
truck on the property. Swabs were taken from that white truck that tested positive for
blood.
¶78 Bone fragments were found in the fire pit along with a shell casing, and a burned
mattress and box springs were located near the fire pit. Bones found during the first search
48
of the home were identified as human. After a search warrant was issued, a second search
of the burn pit was completed using a smaller screen to go through the material. Three jaw
bones, several teeth, and other assorted bone fragments were found. An anthropologist
testified that these bones came from at least two individuals.
¶79 Officers seized a television during another search after Hope, one of the jailhouse
informants, learned from Hardy that a television with blood was still at the house. The
blood on the television was tested and was determined to have a high likelihood of being
Korjack’s blood, corroborating Hope’s information. Additionally, the three jailhouse
informants testified to numerous incriminating statements, admissions, confessions, and
actions of Hardy’s while he was incarcerated, including that Hardy said he moved the
bodies in a white pickup truck and committed the homicides with the same caliber handgun
found by law enforcement at Hardy’s home. Orth and Palmer also testified in detail
regarding Hardy’s solicitation attempts.
¶80 Given the overwhelming evidence corroborating the homicides, solicitation
attempts, and Karen’s eyewitness account, Hardy has not shown that the claimed instances
of prosecutorial misconduct rendered his trial fundamentally unfair, whether viewed
individually or cumulatively. Reviewing the trial record as a whole, we conclude that
Hardy has not demonstrated that failing to address the claimed errors would result in a
manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of
the trial, or compromise the integrity of the judicial process. Accordingly, we decline to
exercise plain error review of Hardy’s claims.
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CONCLUSION
¶81 The State’s use of jailhouse informants did not violate Hardy’s right to counsel. The
jury was fully and fairly instructed on the applicable law pertaining to witness credibility.
The District Court did not violate Hardy’s rights to counsel and to present a defense when
it prevented defense counsel from commenting on a missing prosecution witness during
closing argument. Lastly, this Court will not exercise plain error review to consider
whether Hardy’s allegations of prosecutorial misconduct and other trial errors deprived
him of a fair trial.
¶82 Hardy’s convictions are affirmed.
/S/ LAURIE McKINNON
We concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
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