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MARKUS HENDRIK KAARMA v. STATE OF MONTANA
Case Number: 2021 MT 143N
Judge: Ingrid Gustafson
Court: IN THE SUPREME COURT OF THE STATE OF MONTANA
Plaintiff's Attorney: Austin Knudsen, Montana Attorney General, Jonathan Krauss, Assistant
Attorney General, Helena, Montana
Kirsten H. Pabst, Missoula County Attorney, Matt Jennings, Chief Criminal
Deputy County Attorney, Missoula, Montana
Helena, Montana - Criminal defense attorney represented Markus Hendrik Kaarma with a deliberate homicide charge.
In April 2014, Kaarma’s Missoula home, which he shared with his partner Janelle
Pflager (Pflager) and their infant son, was burglarized twice when they left their garage
door partially open. After the two burglaries, Kaarma repeatedly expressed his anger and
told people he was going to shoot the burglars and was wanting to kill some kids with his
shotgun. Kaarma and Pflager installed security cameras and placed a purse with
identifying information in the garage. Kaarma also threatened a lawn maintenance worker,
who was hired to spray his lawn, with a shotgun.
¶4 In the early morning hours of April 27, 2014, Kaarma and Pflager were home
watching a movie. Pflager went to smoke in the garage, where she partially opened the
garage door for ventilation. After finishing her cigarette, Pflager went back inside the
house but did not shut the garage door. While in the house a short time later, Kaarma and
Pflager saw an intruder enter their garage on the security camera. Kaarma grabbed his
shotgun, went out the front door of the house, turned and stood in front of the garage door. 3
Kaarma told police he shouted and then heard a voice or “metal on metal” sound come
from inside the garage. Kaarma told police he thought he was “going to die” and then
started firing into the garage. Kaarma fired three shots in quick succession, then took a
slight pause before firing the fourth and final shot into the garage. The intruder, a
17-year-old foreign exchange student from Germany named Diren Dede (Dede), was shot
twice—once in the arm and once in the head—and died.
¶5 Kaarma was later arrested and charged with deliberate homicide for shooting and
killing Dede. The matter went to trial in December 2014. The jury convicted Kaarma of
deliberate homicide. Kaarma moved for a new trial, which the District Court denied. The
District Court sentenced Kaarma to 70 years at the Montana State Prison. Kaarma then
appealed to this Court, raising numerous issues, and we affirmed his conviction in 2017.
State v. Kaarma, 2017 MT 24, 386 Mont. 243, 390 P.3d 609. Relevant to this proceeding,
one issue raised by Kaarma in his direct appeal was whether the District Court abused its
discretion by instructing the jury on justifiable use of force in defense of a person. See
Kaarma, ¶ 13. We reviewed the instructions given at trial and determined the “instructions
given were a full and fair instruction on the applicable law of the case.” Kaarma, ¶ 27.
We declined to review Kaarma’s claim the District Court erred “by declining to instruct
the jury that, as a matter of law, burglary is a forcible felony.” Kaarma, ¶ 28. Kaarma
filed a petition for rehearing, which we denied. State v. Kaarma, No. DA 15-0214, Order
(Mont. Mar. 21, 2017). Kaarma then filed a petition for a writ of certiorari at the United
States Supreme Court, which was also denied. Kaarma v. Montana, 2017 U.S. LEXIS
5701 (U.S., Oct. 2, 2017). 4
¶6 On September 18, 2018, Kaarma filed a Petition for Post-Conviction Relief in the
District Court. Kaarma alleged he received ineffective assistance of counsel from his trial
counsel—Paul Ryan, Brian Smith, Katie Lacny, Lisa Kauffman, and Nate Holloway. He
further asserted he received ineffective assistance of counsel on appeal. The District Court
ordered the State to file a response. On November 23, 2018, the District Court issued an
Order Preserving Defense Counsel from Disciplinary or Malpractice Claims, allowing
Kaarma’s counsel to respond to Kaarma’s ineffective assistance of counsel claims.
Kaarma’s counsel thereafter filed affidavits refuting Kaarma’s claims. After receiving
extensions, the State filed the State’s Response to Petition for Post-Conviction Relief on
April 29, 2019. The District Court held a hearing on Kaarma’s petition on July 18, 2019,
and issued its Order Denying Petition for Post-Conviction Relief on July 26, 2019. Kaarma
appeals the denial of his petition for postconviction relief.
¶7 We review a district court’s denial of a petition for postconviction relief to
determine whether the court’s findings of fact are clearly erroneous and whether its
conclusions of law are correct. Marble v. State, 2015 MT 242, ¶ 13, 380 Mont. 366, 355
P.3d 742. Claims of ineffective assistance of counsel constitute mixed questions of law
and fact which we review de novo. Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90,
183 P.3d 861 (citing State v. Racz, 2007 MT 244, ¶ 13, 339 Mont. 218, 168 P.3d 685).
¶8 Kaarma alleges he received ineffective assistance of counsel because his trial
counsel misunderstood the law of justifiable use of force and mismanaged their defense
due to this misunderstanding; his counsel was ineffective for failing to object to statements
made by the prosecution; and the District Court erred by not instructing the jury burglary 5
is a forcible felony as a matter of law. Kaarma asserts, to the extent those issues are
record-based, his appellate counsel was ineffective for failing to raise them on direct
appeal. Finally, Kaarma alleges he is entitled to a new trial based on cumulative error.
¶9 This Court has adopted the two-pronged test of Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052 (1984), in judging ineffective assistance of counsel claims. State v.
Crider, 2014 MT 139, ¶ 34, 375 Mont. 187, 328 P.3d 612 (citing State v. Kougl, 2004 MT
243, ¶ 11, 323 Mont. 6, 97 P.3d 1095). In order to show ineffective assistance of counsel,
“a defendant must prove both (1) that counsel’s performance was deficient, and (2) that
counsel’s deficient performance prejudiced the defense.” State v. Ward, 2020 MT 36, ¶ 18,
399 Mont. 16, 457 P.3d 955 (quoting Crider, ¶ 34). The question we must answer when
deciding an ineffective assistance of counsel claim “is whether counsel’s conduct fell
below an objective standard of reasonableness measured under prevailing professional
norms and in light of the surrounding circumstances.” Whitlow, ¶ 20. In analyzing
prejudice, the defendant must show a “reasonable probability that the result of the
proceeding would have been different but for counsel’s deficient performance.” State v.
Brown, 2011 MT 94, ¶ 12, 360 Mont. 278, 253 P.3d 859 (citation omitted).
¶10 We begin with Kaarma’s ineffective assistance of counsel claims. “[A] petitioner
seeking to reverse a district court’s denial of a petition for postconviction relief based on a
claim of ineffective assistance of counsel bears ‘a heavy burden.’” Hamilton v. State, 2010
MT 25, ¶ 12, 355 Mont. 133, 226 P.3d 588 (quoting Whitlow, ¶ 21). “[A] reviewing court
‘must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance’ and the defendant ‘must overcome the presumption 6
that, under the circumstances, the challenged action might be considered sound trial
strategy.’” Whitlow, ¶ 21 (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). Kaarma
was represented by a team of five attorneys at trial. During the settling of jury instructions,
Kaarma’s counsel attempted to only have the jury instructed on justified use of force in
defense of occupied structure, rather than instructed on both that and justified use of force
in defense of person. As part of this attempt, counsel withdrew their proposed jury
instruction—Instruction No. 20—on justified use of force in defense of person. One of
Kaarma’s attorneys, Brian Smith, told the District Court, “[s]o what we didn’t appreciate
until we’re settling instructions is this idea that Montana -- we just didn’t get that technical
-- has two justifiable use of forces.”
¶11 Kaarma argues the statement from Smith shows his defense team was ineffective as
they did not understand the differences between justified use of force in defense of person
and justified use of force in defense of occupied structure. Montana’s justified use of force
in defense of person statute states:
A person is justified in the use of force or threat to use force against another
when and to the extent that the person reasonably believes that the conduct
is necessary for self-defense or the defense of another against the other
person’s imminent use of unlawful force. However, the person is justified in
the use of force likely to cause death or serious bodily harm only if the person
reasonably believes that the force is necessary to prevent imminent death or
serious bodily harm to the person or another or to prevent the commission of
a forcible felony.
Section 45-3-102, MCA. Meanwhile, the justified use of force in defense of occupied
structure statute states:
(1) A person is justified in the use of force or threat to use force against
another when and to the extent that the person reasonably believes that the 7
use of force is necessary to prevent or terminate the other person’s unlawful
entry into or attack upon an occupied structure.
(2) A person justified in the use of force pursuant to subsection (1) is justified
in the use of force likely to cause death or serious bodily harm only if:
(a) the entry is made or attempted and the person reasonably believes
that the force is necessary to prevent an assault upon the person or another
then in the occupied structure; or
(b) the person reasonably believes that the force is necessary to
prevent the commission of a forcible felony in the occupied structure.
Section 45-3-103, MCA. The District Court found Smith’s statement not to be evidence
of deficient performance, but when taken in context, an attempt by counsel to prevent the
jury from being instructed on the justified use of force in defense of person statute,
§ 45-3-102, MCA. We agree with the District Court. Our review of the record shows this
statement from Smith came during Kaarma’s attempt to have the jury only instructed on
justified use of force in defense of occupied structure. The attempt failed, and the District
Court instructed the jury on both self-defense statutes.
¶12 Kaarma’s counsel failed in their attempt to only have the jury instructed on justified
use of force in defense of occupied structure, but Kaarma has failed to demonstrate
“counsel’s conduct fell below an objective standard of reasonableness measured under
prevailing professional norms and in light of the surrounding circumstances.” Whitlow,
¶ 20. Under the circumstances, counsel’s conduct may well be considered sound trial
strategy as they were faced with the unenviable task of attempting to get only their
preferred instructions regarding justified use of force in defense of occupied structure
before the jury in the face of Kaarma’s statements before the incident that he wanted to kill 8
kids with his shotgun, which were followed by him shooting and killing Dede with his
shotgun and then telling the police he feared for his life. “Montana allows a person to use
force to defend himself or herself in a degree commensurate with the threat of harm the
person faces.” State v. Stone, 266 Mont. 345, 347, 880 P.2d 1296, 1298 (1994). Kaarma
was able to fully present his theory he was justified in his use of deadly force to stop Dede’s
burglary of his open garage. The jury rejected that theory and convicted him of deliberate
homicide. Kaarma’s counsel was both able to argue their theory of the case and for their
preferred jury instructions. Neither was outside the bounds of reasonableness, and,
regarding the jury instructions, we have already determined the “instructions given were a
full and fair instruction on the applicable law of the case.” Kaarma, ¶ 27.
¶13 Kaarma also argues his counsel was ineffective for failing to object to several
statements made by prosecutors at trial. He has failed to demonstrate, however, that further
objections by his counsel would have been sustained by the District Court or that counsel’s
failure to object fell below an objective standard of reasonableness and was outside the
wide range of reasonable professional assistance. Furthermore, he has failed to show that,
even if some of those objections would have been sustained, they would have changed the
outcome of the trial in any way. On this record, we cannot find such “missed” objections
would have changed the outcome of the trial. Thus, Kaarma has failed to demonstrate
either deficient performance or prejudice in this regard.
¶14 Because Kaarma failed to prove the first prong of the Strickland test—deficient
performance by his counsel—it is unnecessary for this Court to address the second prong
regarding prejudice. Adams v. State, 2007 MT 35, ¶ 22, 336 Mont. 63, 153 P.3d 601. 9
Kaarma “bore the burden to overcome the presumption that his counsel acted in a
reasonable, professional manner.” Sartain v. State, 2012 MT 164, ¶ 44, 365 Mont. 483,
285 P.3d 407 (quoting Sellner v. State, 2004 MT 205, ¶ 48, 322 Mont. 310, 95 P.3d 708).
He failed to meet his burden here and the District Court correctly rejected his ineffective
assistance of counsel claims.
¶15 Kaarma also asserts the District Court erred by failing to instruct the jury that
burglary is a forcible felony as a matter of law. Before trial, the State filed a motion in
limine seeking a ruling that burglary is not a forcible felony as a matter of law and Kaarma
filed a motion in limine seeking a ruling that burglary is a forcible felony. The District
Court denied both motions and repeatedly stated whether Dede’s burglary on April 27,
2014, was a forcible felony was a matter for the jury to decide. This argument—whether
burglary is a forcible felony as a matter of law—could have been, should have been, and
was raised on direct appeal. See Kaarma, ¶ 28. In our decision, however, we incorrectly
stated Kaarma withdrew his proposed instruction that burglary is a forcible felony. In fact,
as recognized by the District Court in its Order Denying Petition for Post-Conviction
Relief, Kaarma’s instruction that burglary is a forcible felony was refused by the District
Court. Counsel for Kaarma did state they “withdrew” the instruction during the settling of
instructions, but was quickly corrected by the Clerk of Court, who informed the judge he
had already refused that instruction.
¶16 “Grounds for relief ‘that were or could reasonably have been raised on direct appeal
may not be raised, considered or decided in a proceeding’ for [postconviction] relief.”
Rukes v. State, 2013 MT 56, ¶ 8, 369 Mont. 215, 297 P.3d 1195 (quoting § 46-21-105(2), 10
MCA). Here, Kaarma did raise this issue on direct appeal. After our decision incorrectly
stated Kaarma withdrew his proposed instruction that burglary is a forcible felony, he again
raised the issue in his petition for rehearing. We denied his petition. State v. Kaarma, No.
DA 15-0214, Order (Mont. Mar. 21, 2017). Kaarma’s argument the District Court erred
by declining to instruct the jury that burglary is a forcible felony is not appropriate in a
postconviction proceeding as it was already raised, repeatedly, on direct appeal. Rukes,
¶ 8. Moreover, we have already determined the “instructions given were a full and fair
instruction on the applicable law of the case.” Kaarma, ¶ 27. In addition, “forcible felony”
is defined in statute as “any felony which involved the use or threat of violence against any
individual.” Section 45-3-101(2), MCA. Burglary, meanwhile, occurs when a person
“knowingly enters or remains unlawfully in an occupied structure and: (a) the person has
the purpose to commit an offense in the occupied structure; or (b) the person knowingly or
purposely commits any other offense within that structure.” Section 45-6-204(1), MCA.
We have not previously declared burglary to be a forcible felony as a matter of law and the
plain language of the burglary statute does not require the “use or threat of violence against
any individual” such that it would be a forcible felony. The District Court did not err in
rejecting Kaarma’s argument in this regard and allowing the parties to argue whether
Dede’s entrance of Kaarma’s garage on the night he was shot was, in fact, a forcible felony
under Montana law. The District Court properly instructed the jury on the definitions of
both “burglary” and of “forcible felony” and then let the jury determine whether the facts
of the case met the definitions. 11
¶17 Kaarma also alleges he received ineffective assistance of counsel on appeal. “The
criteria for establishing ineffective assistance of appellate counsel are the same as those
used to establish ineffective assistance of trial counsel[.]” DuBray v. State, 2008 MT 121,
¶ 31, 342 Mont. 520, 182 P.3d 753, overruled in part on other grounds by Marble, ¶ 31.
Here again, Kaarma must show both “(1) that counsel’s performance was deficient, and
(2) that counsel’s deficient performance prejudiced the defense.” Ward, ¶ 18. The question
we must answer “is whether counsel’s conduct fell below an objective standard of
reasonableness measured under prevailing professional norms and in light of the
surrounding circumstances.” Whitlow, ¶ 20. We cannot find Kaarma received ineffective
assistance of counsel on appeal. Appellate counsel has no constitutional obligation to raise
every non-frivolous argument on appeal and the presumption of effective assistance of
counsel is only overcome when ignored issues are clearly stronger than those presented.
DuBray, ¶ 31 (citations omitted). The District Court reviewed the affidavit of Kaarma’s
appellate counsel and noted counsel clearly explained his decision-making, appropriately
narrowed the issues to those most likely to succeed, and filed an over-length appellate brief
raising more issues than recommended by M. R. App. P. 12(1)(b). The District Court found
appellate counsel’s advocacy was “exemplary, not deficient.” Our review of the record
similarly finds no deficient performance by appellate counsel. Counsel narrowed the issues
on appeal to those most likely to succeed. Counsel partially succeeded, as we found the
District Court abused its discretion regarding the testimony of one witness, Kaarma, ¶ 87,
though we ultimately determined the error was harmless. Kaarma, ¶ 91. Kaarma has not
shown his appellate counsel acted outside of the wide range of reasonable professional 12
assistance or that he was prejudiced by counsel narrowing the issues in the manner he did.
Indeed, Kaarma has not succeeded on those issues in either his petition for postconviction
relief before the District Court or on appeal here.
¶18 The cumulative error doctrine mandates reversal of a conviction where numerous
errors, when taken together, have prejudiced a defendant’s right to a fair trial. State v.
Smith, 2020 MT 304, ¶ 16, 402 Mont. 206, 476 P.3d 1178 (citing State v. Cunningham,
2018 MT 56, ¶ 32, 390 Mont. 408, 414 P.3d 289). “The defendant must establish prejudice;
a mere allegation of error without proof of prejudice is inadequate to satisfy the doctrine.”
Cunningham, ¶ 32 (citation omitted). A defendant is entitled to a fair trial, not to a trial
free from errors. Cunningham, ¶ 32. The cumulative effect of errors will “rarely merit
reversal[.]” Smith, ¶ 17 (citing Cunningham, ¶ 33).
¶19 Here, Kaarma is not entitled to a reversal of his conviction on the basis of cumulative
error. We have determined both that Kaarma’s counsel was not ineffective and that the
District Court’s instructions gave the jury a full and fair instruction on the applicable law
of the case. Kaarma received a fair trial and has failed to demonstrate prejudice which
would require reversal.
¶20 Kaarma has not met the “heavy burden” of establishing he received ineffective
assistance from either his trial or his appellate counsel. In addition, the District Court’s
instructions were “a full and fair instruction on the applicable law of the case,” Kaarma,
¶ 27, and the District Court did not err by declining to instruct the jury that burglary is a
forcible felony as a matter of law. Finally, as we have not found error, Kaarma is not 13
entitled to a reversal based on cumulative error. The District Court correctly denied
Kaarma’s petition for postconviction relief.
¶21 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.