Forcible-Felony Instruction as a De Facto “Defense-of-Others” Charge: A Comprehensive Commentary on State v. C. Rossbach, 2025 MT 128N

Introduction

State v. Cavey Little Rossbach, 2025 MT 128N, is a non-citable memorandum opinion of the Montana Supreme Court that nonetheless addresses two recurring trial-practice questions in violent-crime prosecutions:

1. When must a district court instruct on the defense of others?
2. When does counsel’s failure to request such an instruction amount to ineffective assistance?

The defendant, Cavey Little Rossbach, was convicted in 2022 of deliberate homicide with a dangerous weapon after fatally shooting William Conko-Camel. On appeal he alleged (1) instructional error—failure to give a specific “defense of others” instruction—and (2) ineffective assistance of counsel (IAC) for not requesting that instruction. The Supreme Court affirmed, holding that:

• The forcible-felony justification instruction given to the jury adequately encompassed “defense of others,” so no error occurred; and
• Because counsel could plausibly view the forcible-felony instruction as covering the defense, counsel’s performance was not constitutionally deficient under Strickland v. Washington.

Summary of the Judgment

Writing for a unanimous court, Justice Ingrid Gustafson applied settled standards:

• Plain-Error Review. The claimed instructional defect—unpreserved at trial—did not implicate a fundamental right or risk a manifest miscarriage of justice; hence, no discretionary plain-error review was warranted.
• Instructional Adequacy. The jury was told that deadly force is justified if the defendant “reasonably believes” it necessary to prevent a forcible felony, defined as violence “against any individual.” This wording, the Court said, “made it clear” that Rossbach could defend anyone against violent threat. Accordingly, the instructions, viewed as a whole, “fully and fairly” stated Montana law.
• IAC Claim. Counsel’s omission was plausibly strategic (the existing instruction sufficed), and even had a separate instruction been given, the evidence did not support acquittal. Rossbach therefore failed both prongs of Strickland.

The conviction and 100-year sentence (90 + 10 weapon enhancement) were therefore affirmed.

Analysis

Precedents Cited

• State v. George, 2020 MT 56 – sets the two-step test for plain-error discretionary review in Montana (fundamental right + miscarriage of justice/integrity concern).
• State v. King, 2016 MT 323 – articulates the abuse-of-discretion standard for jury instructions and the prohibition on conflicting instructions.
• State v. Erickson, 2014 MT 304 – reiterates the duty to instruct on every “issue or theory” supported by evidence.
• Strickland v. Washington, 466 U.S. 668 (1984) – the familiar two-prong (deficient performance + prejudice) IAC framework, incorporated in Montana via Article II, § 24.
• State v. Secrease, 2021 MT 212 & State v. Rodriguez, 2021 MT 65 – guide whether IAC claims belong on direct appeal or post-conviction.

The Court applied these authorities mechanically rather than expanding them; nevertheless, the opinion illustrates how they interact in the jury-instruction/IAC context.

Legal Reasoning

1. Overlap Doctrine. Montana’s justifiable use-of-force statute (§ 45-3-102, MCA) recognizes three parallel defenses: self-defense, defense of a person, and defense of an occupied structure. The Court held that labeling the instruction “forcible felony” rather than “defense of others” is immaterial where the definitional text expressly covers threats “against any individual.”
2. Structural Plain-Error Gatekeeping. Because Rossbach did not object, the Court first asked whether a fundamental right (fair-trial guarantee) was implicated. It concluded no, because the jury had an instruction allowing acquittal if it believed Rossbach reasonably acted to protect others.
3. IAC Causation. Even assuming deficiency, the Court stressed the absence of prejudice: overwhelming evidence (multiple shots, victim unarmed, family did not feel threatened, shooter at distance) rendered the defense implausible. Thus, no “reasonable probability” of a different outcome existed.

Impact

Although designated “non-citable,” Rossbach carries practical consequences:

• Trial Judges & Practitioners: Rossbach signals that a generic forcible-felony instruction will usually suffice to cover “defense of others,” minimizing the need for separate, duplicative charges.
• IAC Litigation: Counsel’s tactical choice to rely on a broad instruction is unlikely to be deemed deficient where that instruction’s language reaches the desired theory.
• Appellate Strategy: Defendants contemplating plain-error claims must articulate how the alleged omission truly withdraws a recognized defense from the jury—not simply that the instruction could have been clearer.
• Future Opinions: Despite its non-precedential label, Rossbach may exert “shadow precedential” influence: parties will cite it informally in briefs, and district courts, aware of its reasoning, may reject requests for duplicative instructions.

Complex Concepts Simplified

Plain-Error Doctrine

A safety-valve allowing appellate courts to correct unpreserved errors that (1) affect fundamental rights and (2) threaten the fairness or integrity of the proceedings. It is used sparingly.

Forcible Felony Instruction

An instruction telling jurors that deadly force can be used if the defendant reasonably believes it necessary to stop a felony involving violence or threat of violence. Because it protects “any individual,” it doubles as a defense-of-others instruction.

Defense of Others

A justification allowing a person to use force to protect a third party from imminent unlawful force, governed by the same “reasonableness” standard as self-defense.

Ineffective Assistance of Counsel (IAC)

Under Strickland, a defendant must prove (1) counsel’s performance fell below professional norms and (2) the lapse prejudiced the outcome.

Conclusion

State v. Rossbach reaffirms the Montana Supreme Court’s conservative posture toward unpreserved instructional claims and underscores that a well-worded forcible-felony instruction inherently covers both self-defense and defense-of-others theories. While not precedential, the decision provides a roadmap for trial judges crafting justification instructions and for defense counsel strategizing about which instructions to request or challenge. The case also illustrates the evidentiary hurdles defendants face when relying on deadly force justifications: even a facially adequate instruction cannot overcome a factual record suggesting excessive, unnecessary violence. Ultimately, Rossbach is a cautionary tale: success on appeal requires not only correct legal theory but also a trial record that logically supports it.