Garry Golden v. State, 326 P.3d 430

Background

In 2005 Garry Golden was convicted of felony sexual assault for an incident in August 2002 in which an eyewitness (Martin Holland) testified he saw Golden orally assault a 3-year-old; Golden made incriminating inculpatory statements and was convicted after a second trial. Golden’s DNA was not identified on swabs or the child’s underwear at trial.
Golden sought postconviction relief in 2008 requesting additional DNA testing (including testing the unknown contributor on the underwear against others and CODIS) and raised ineffective-assistance-of-counsel (IAC) claims; the District Court initially dismissed on procedural grounds, this Court remanded for merits review.
On remand the District Court (June 2013) denied Golden’s petition for further DNA testing and discovery, denied the State’s dismissal motion, but granted relief on Golden’s claim that appellate counsel provided ineffective assistance; it denied the IAC claim against trial counsel. Golden appealed; State cross-appealed.
The Supreme Court reviewed statutory standards for postconviction DNA testing under § 46-21-110, MCA, and applied Strickland for IAC claims. The Court treated whether additional testing could, "in light of all the evidence," establish whether Golden was the perpetrator as the dispositive statutory inquiry.
The Court affirmed denial of additional DNA testing (finding identification of the unknown contributor would not make it less likely Golden committed the assault given strong eyewitness and inculpatory statements and statutory limits on testing). The Court reversed the District Court’s grant of relief on appellate-counsel IAC, concluding any briefing deficiency was harmless because the challenged hearsay was cumulative of Holland’s admissible eyewitness testimony.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the District Court erred in denying postconviction DNA testing under § 46-21-110	Golden: further testing of the unknown contributor and substrate controls would significantly advance innocence and possibly identify another perpetrator; testing and CODIS queries should be allowed	State: statute authorizes only testing of previously secured evidence; petitioner must show testing would determine whether he was the perpetrator and prima facie materiality is lacking here because ID rests on eyewitness and admissions	Denied — identification of the unknown contributor would not, in light of the trial evidence (strong eyewitness testimony and Golden’s statements), establish Golden’s innocence; requested testing not authorized in the manner sought.
Whether trial counsel rendered ineffective assistance by not calling a DNA expert	Golden: counsel’s failure to consult/use a DNA expert was deficient and prejudicial	State: counsel consulted an expert but reasonably chose not to call one because prior DNA tests excluded Golden and calling an expert risked opening harmful issues; strategic choices are presumptively reasonable	Denied — no deficient performance shown; trial strategy to avoid opening adverse issues was reasonable.
Whether appellate counsel rendered ineffective assistance for inadequate briefing of hearsay issue on direct appeal	Golden: appellate brief failed to comply with briefing rule and omitted legal argument, which prevented review of hearsay errors	State: the hearsay arguably fell within exceptions or, if erroneous, was harmless given Holland’s unequivocal eyewitness testimony; petitioner cannot show a reasonable probability of a different outcome on appeal	Reversed — the Supreme Court held the admission (if erroneous) was harmless because the challenged hearsay was cumulative of Holland’s admissible eyewitness testimony; therefore inadequate briefing would not have changed the appeal outcome.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance test)
Haffey v. State, 233 P.3d 315 (Mont. 2010) (interpreting § 46-21-110 and weighing exculpatory potential of DNA testing against trial evidence)
State v. Van Kirk, 32 P.3d 735 (Mont. 2001) (harmless-error and cumulative evidence test for tainted testimony)
State v. Whitlow, 33 P.3d 877 (Mont. 2001) (deference to reasonable trial strategy in IAC review)