Rogers v. State, 2011 MT 105

Rogers was charged with two counts of sexual assault for touching two stepdaughters; convicted after a two-day trial and sentenced to 20 years with 10 suspended.
Marshall represented Rogers on direct appeal and post-conviction relief; prior appeal affirmed by this Court.
Video of Rogers at the police station captured his handcuff-key attempt to remove restraints; no pretrial motions were filed on this issue.
Marshall discussed hiring a psychologist to address coaching claims and sought related disclosure, funding, and strategy.
Hoxsey, a rebuttal witness, was disclosed by the State one week before trial; records were not requested by Marshall.
Rogers challenged multiple trial and direct-appeal decisions as ineffective assistance of counsel and prosecutorial misconduct; the District Court denied post-conviction relief and Rogers appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance from pretrial investigation	Rogers argues Marshall failed to obtain counselor records for Hoxsey.	State contends no prejudice shown; records not necessary.	No showing of outside professional standard error; no prejudice proven.
Strategy involving the expert psychologist	Psychologist strategy prejudicially opened door to evidence; inadequate preparation.	Strategy within reasonable professional discretion; allowed to explain coaching.	Strategic choice deemed within professional discretion; no prejudice proved.
Objections to vouching testimony	Marshall should have objected to mother/counselor vouching and prosecutorial comments.	Statements were consistent with defense theory and not improper vouching.	Not improper vouching; comments within permissible scope given coaching theory.
Admissibility of video of police interview	Video contained prejudicial, improper bolstering; should have been suppressed or redacted.	Use of video strategic to highlight detective suggestiveness; admissible.	Video admissible; no reversible error proven.
Ineffective assistance on direct appeal and conflict of interest	Marshall should have raised handcuff evidence and conflict-of-interest issues on appeal.	Appellate strategy reasonable; trial counsel can assist on appeal; not reversible error.	Handcuff evidence issue not reversible; no conflict-of-interest reversible error.

State v. Tadewaldt, 2010 MT 177 (Mont. 2010) (requires showing prejudice; no presumption of prejudice in objections)
Foston v. State, 2010 MT 281 (Mont. 2010) (mixed questions of law and fact; de novo review for ineffective assistance)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance; deficiency and prejudice)
State v. St. Germain, 2007 MT 28, 336 Mont. 17, 153 P.3d 591 (Mont. 2007) (prohibition on expert vouching by witnesses; credibility assessment by jury)
State v. Brodniak, 221 Mont. 212, 718 P.2d 322 (Mont. 1986) (limits on expert testimony and credibility evaluation)
State v. Geyman, 224 Mont. 194, 729 P.2d 475 (Mont. 1986) (vouching and credibility in child-victim cases)
State v. Payne, 2011 MT 35, 359 Mont. 270, 248 P.3d 842 (Mont. 2011) (harmless error standard for evidentiary rulings)
State v. Savage, 2011 MT 23, 359 Mont. 207, 248 P.3d 308 (Mont. 2011) (harmlessness in post-conviction context)
Hagen v. State, 1999 MT 8, 293 Mont. 60, 973 P.2d 233 (Mont. 1999) (ineffective assistance on appeal standard)