State v. Harley Howard
2011 MT 246
Mont.2011Background
- Howard was charged with Incest (common scheme) against his daughter D.H. for acts from 2003 to 2005 when she was six to eight.
- He was tried by jury in the First Judicial District and convicted on December 17, 2009.
- The district court sentenced Howard to 40 years in prison with 20 years suspended and no parole for 10 years, conditioned on Phase I completion of sex offender treatment.
- D.H. testified about multiple assaults; C.H. testified he saw his father expose himself to D.H.; both children had PTSD diagnoses.
- A video-recorded interview of D.H. with Hansen was admitted over objection; the interview contained both consistent and inconsistent statements.
- At sentencing, evidence focused on Howard’s treatment amenability, risk, and denial of the offense; the defense argued potential innocence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for not challenging competency | Howard: competency objections warranted; witnesses likely unable to testify truthfully. | Howard: Hood failed to contest competency; PTSD diagnoses suggested incapacity. | No error; no competency basis shown; witnesses competent. |
| Whether Hood's handling of the D.H. recording was deficient | Howard: improper hearsay objections; Confrontation Clause concerns. | Howard: proper objection lacked merit; trial strategy allowed use of statements. | Not ineffective; objections and strategy were proper under Lawrence and Crawford frameworks. |
| Whether hearsay from therapists was improperly admitted | Howard: therapists’ hearsay violated rights and corroboration requirements. | Howard: hearsay admissible; testimony corroborated primary witnesses. | Admissible; therapists’ statements properly limited and corroborative. |
| Whether the sentence was impermissibly based on Howard's innocence | Howard: sentencing punished for maintaining innocence in violation of Fifth Amendment. | Howard: denial impacted treatment; no punishable factor linked to innocence. | Sentence within statutory limits; not augmented for innocence; based on treatment risk and evaluations. |
Key Cases Cited
- State v. Trull, 332 Mont. 233 (2006 MT) (ineffective-assistance review on direct appeal)
- State v. Green, 350 Mont. 141 (2009 MT) (de novo review for ineffective assistance)
- State v. Herd, 87 P.3d 1017 (2004 MT) (statutory sentencing legality and review)
- In re Hans, 958 P.2d 1175 (1998 MT) (record-based ineffective-assistance analysis)
- Kougl, 97 P.3d 1095 (2004 MT) (counsel performance and prejudice standard)