Richeson and the Limits of Plain-Error Review: Highlighting Unrebutted Expert Evidence Is Not Burden Shifting; Record‑Silent IAC Claims Belong in Postconviction Proceedings

Introduction

This memorandum opinion from the Montana Supreme Court arises from Lucas James Richeson’s jury convictions for felony attempted kidnapping (Mont. Code Ann. §§ 45-4-103, 45-5-302) and misdemeanor assault (§ 45-5-201(1)(a)). The incident occurred at the Great Northern Carousel in Helena, where Richeson entered an employee-only area and engaged in a physical struggle with staff while attempting to remove a child from a carousel horse. Prior to trial, multiple mental health evaluations—two psychologists and a psychiatrist/psychologist duo—uniformly concluded that Richeson acted with knowledge and purpose at the time of the charged offenses, notwithstanding evidence of substance-induced psychosis and indications of malingering at the Montana State Hospital (MSH).

On appeal, Richeson presented two issues:

• Ineffective assistance of counsel (IAC) based on trial counsel’s failure to call an expert witness to support his theory that he lacked the required mental state of “purposely or knowingly.”
• Prosecutorial misconduct under plain-error review: whether the prosecutor’s closing comment—that the only reliable testimony regarding Richeson’s mental state came from the State’s experts—improperly shifted the burden of proof.

The Court affirmed, dismissing the IAC claim without prejudice for lack of a record-based basis to assess counsel’s strategy and rejecting the prosecutorial-misconduct claim under the plain-error standard.

While the Court designated the decision noncitable and not precedential, it is a useful restatement of settled law on when IAC may be reviewed on direct appeal and what constitutes improper burden shifting in closing argument when the defense has offered no expert corroboration.

Summary of the Opinion

The Court resolved both appellate issues against Richeson:

• Ineffective assistance (Strickland/Jefferson framework): Because the record did not reveal why trial counsel chose not to call an expert witness—and three State-associated evaluations all concluded Richeson acted with purpose and knowledge—counsel’s decision could have been strategic. Under State v. Schaeffer and related precedent, IAC claims depending on extra-record explanations must be raised in postconviction proceedings. The Court therefore dismissed the IAC claim without prejudice.
• Prosecutorial misconduct (plain error; Lindberg/Makarchuk): In context, the prosecutor’s remark highlighting the absence of defense expert support did not shift the burden of proof. The jury received proper instructions on the State’s beyond-a-reasonable-doubt burden, and the prosecutor permissibly questioned the credibility of Richeson’s uncorroborated, self-described delusions. Under the two-step analysis for alleged misconduct, the Court found no improper burden shifting and no prejudice warranting reversal under the plain-error doctrine.

Analysis

Precedents Cited and Their Role

• State v. Jefferson, 2003 MT 90, 315 Mont. 146, 69 P.3d 641. The Court reiterated that IAC claims are reviewed de novo as mixed questions of law and fact, and that Montana recognizes the federal Strickland v. Washington test.
• Strickland v. Washington, 466 U.S. 668 (1984). Establishes the two-pronged IAC standard: deficient performance and prejudice. The Court emphasized both prongs are necessary and that counsel’s conduct is strongly presumed reasonable.
• State v. Kime, 2013 MT 14, 368 Mont. 261, 295 P.3d 580. Reinforces that failure to establish either Strickland prong is fatal and highlights the deference accorded to strategic choices.
• State v. Schaeffer, 2014 MT 47, 374 Mont. 93, 321 P.3d 809. Clarifies the procedural posture for IAC claims: direct appeal is suitable only when the record reveals why counsel acted as they did; otherwise, postconviction is the proper vehicle. Also articulates the narrow application of Montana’s plain-error doctrine.
• State v. Chafee, 2014 MT 226, 376 Mont. 267, 332 P.3d 240; State v. Kougl, 2004 MT 243, 323 Mont. 6, 97 P.3d 1095. These cases exemplify circumstances where omissions (e.g., failing to request critical jury instructions) lack plausible strategic justification—contrasting with discretionary strategic decisions like whether to call an expert.
• State v. Lindberg, 2008 MT 389, 347 Mont. 76, 196 P.3d 1252; State v. Sanchez, 2008 MT 27, 341 Mont. 240, 177 P.3d 444. Provide the two-step framework for evaluating alleged prosecutorial misconduct and the remedy of reversal when improper comments prejudice the right to a fair trial. Lindberg also frames when plain-error review may be invoked.
• State v. Makarchuk, 2009 MT 82, 349 Mont. 507, 204 P.3d 1213; State v. Rodarte, 2002 MT 317, 313 Mont. 131, 60 P.3d 983. Confirm that prosecutors may not comment on a defendant’s choice not to testify but may argue the absence of corroborating evidence available from sources other than the defendant. Makarchuk’s contextual approach supported the Court’s reading of the challenged remark here.

Legal Reasoning

1) Ineffective Assistance of Counsel on Direct Appeal

The Court applied the Strickland framework, as recognized in Jefferson, alongside its long-standing rule governing the proper forum for IAC claims (Schaeffer). The central question was whether the appellate record explained counsel’s decision not to call a defense expert to counter the State’s mental-health evidence and to bolster Richeson’s assertion that he could not form the requisite mental states of “purposely” or “knowingly.”

The record contained three professional evaluations (Smelko, Klajic, and a joint Kirsch/Bemporad report) concluding that Richeson acted with purpose and knowledge on the dates of his offenses. Dr. Kirsch testified at trial and reported a SIMS score strongly suggestive of malingering (27 against a threshold of 14). The defense offered no expert to rebut those findings and relied largely on Richeson’s own narrative of delusional beliefs (e.g., “alpha” team, messages from agents, child-rescue mission).

In this posture, the Court emphasized two points:

• The appellate record did not show whether defense counsel had retained any expert, pursued an evaluation, or made a tactical decision to avoid reinforcing unfavorable expert opinions. As Schaeffer recognizes, the absence of record evidence explaining counsel’s choices makes direct-appeal review inappropriate.
• Given three aligned expert conclusions, it was “plausible” that counsel chose not to compound adverse testimony, a strategy that falls within the “wide range of reasonable professional conduct” presumed under Strickland and Jefferson. The Court contrasted this with cases like Chafee and Kougl, where omissions undermined core defenses and lacked strategic justification.

Conclusion: The IAC claim is dismissed without prejudice to postconviction relief, where extra-record evidence (affidavits, testimony from trial counsel, proposed experts) can be developed to test deficiency and prejudice.

2) Prosecutorial Misconduct and Plain-Error Review

Because defense counsel did not object at trial, Richeson sought plain-error review of the prosecutor’s closing remark referencing the State’s experts as the only reliable testimony on mental state. The Court invoked Montana’s sparing application of plain error (Schaeffer): reserved for cases where failure to review may produce a manifest miscarriage of justice, call into question the fundamental fairness of the trial, or compromise the integrity of the judicial process.

Proceeding through Lindberg’s two-step analysis:

• Impropriety: The prosecutor may not comment on a defendant’s decision not to testify. But here, Richeson did testify. Under Makarchuk and Rodarte, a prosecutor may argue that key facts remain uncontroverted by available evidence from persons other than the defendant. Read in context—an argument anchored in jury instructions, credibility, and the absence of defense expert support—the remark fell within permissible commentary on the state of the evidence.
• Prejudice: The trial court properly instructed the jury on the State’s beyond-a-reasonable-doubt burden and the elements of the charged offenses. The prosecutor framed his argument around those instructions. The State presented consistent expert testimony and collateral facts (e.g., Richeson’s functioning at MSH, SIMS results, specific recollections of pre-offense conduct) that supported purposeful/knowing conduct. Against that record, the remark did not create a risk that the jury shifted the burden to Richeson to prove mental disease or defect, nor did it undermine the fairness of the proceedings.

Conclusion: No plain error; the comment did not impermissibly shift the burden of proof, and there was no manifest miscarriage of justice.

Practical Impact and Forward-Looking Considerations

Although noncitable, the opinion reinforces several practice points:

• Creating a record for IAC: When defense strategy involves forgoing expert testimony—especially in mental-state cases—counsel should either create an on-record explanation (if feasible without prejudicing the defense) or be prepared to present that rationale in postconviction proceedings. Direct appeals will rarely provide relief without a record of why counsel acted as they did.
• Mens rea defenses and expert corroboration: Where a defendant seeks to negate “purposely” or “knowingly” through evidence of mental disease or defect, expert testimony often plays a central role. Absent such support, a prosecutor may permissibly emphasize the lack of corroboration, provided they do not misstate the law or suggest the defendant bears the burden of proof.
• Closing-argument guardrails: Prosecutors should consistently tether their argument to the jury instructions and the State’s burden. References to “unrebutted” or “only” evidence are safer when framed as credibility and weight assessments rather than as requirements that the defendant produce evidence.
• Plain-error constraints: Montana’s plain-error doctrine remains narrow. Unobjected-to closing remarks will be reviewed holistically and are unlikely to meet the standard absent clear constitutional implications and a substantial effect on the fairness and integrity of the proceedings.
• Use of malingering instruments: Evidence like a high SIMS score can be potent in contests over mental state, especially when corroborated by observed functioning and consistent expert diagnoses. Defense counsel should anticipate and address such evidence, whether through cross-examination, alternative tools, or competing expert interpretation.

Complex Concepts Simplified

• Ineffective Assistance of Counsel (IAC): A constitutional claim alleging defense counsel performed below reasonable professional norms and that the deficiency changed the outcome (or undermined confidence in it). Courts presume counsel’s choices are reasonable strategy unless the record shows otherwise.
• Direct Appeal vs. Postconviction for IAC: Direct appeal is limited to the trial record; if the record does not explain counsel’s choices, the claim belongs in postconviction proceedings where new evidence (e.g., counsel affidavits, expert reports) can be added.
• Plain-Error Review: A narrow safety valve allowing appellate review of unpreserved errors when necessary to prevent a manifest miscarriage of justice, to safeguard fundamental fairness, or to protect the integrity of the judicial process.
• Burden Shifting: It is improper for the State to argue that the defendant must prove innocence or produce evidence. However, a prosecutor may argue that certain facts remain uncorroborated by available evidence (other than the defendant) and assess the weight of the record, so long as the State’s burden remains clear.
• Purposely/Knowingly (Mens Rea): Elements of mental state the State must prove beyond a reasonable doubt. Evidence of mental disease or defect may be used to challenge whether the defendant had the required mental state, but the State’s burden never shifts.
• SIMS (Structured Inventory of Malingered Symptomatology): A screening tool to detect potential exaggeration or feigning of psychiatric or cognitive symptoms. A score significantly above the threshold suggests a high probability of symptom exaggeration and may affect credibility.
• Memorandum Opinion (Noncitable): Under Montana’s Internal Operating Rules, some decisions are issued as memorandum opinions that do not constitute precedent and may not be cited, though they may still illustrate the application of settled law.

Conclusion

The Montana Supreme Court’s memorandum opinion in State v. Richeson affirms two core, settled propositions:

• IAC claims hinged on counsel’s unrecorded strategy—such as whether to call an expert—are generally not reviewable on direct appeal and must be pursued through postconviction proceedings where the record can be developed.
• Under plain-error review, a prosecutor’s reference to the absence of defense expert corroboration does not amount to impermissible burden shifting when framed as an assessment of the evidentiary record, consistent with jury instructions preserving the State’s burden of proof.

While nonprecedential, the decision offers practical guidance: defense counsel should anticipate the evidentiary demands of mens rea challenges grounded in mental health, create a record supporting strategic choices, and object to any closing argument that risks misallocating the burden of proof. Prosecutors, for their part, should continue to anchor arguments in the instructions and the evidentiary record, avoiding formulations that suggest the defendant must produce proof. In this case, the State’s consistent expert testimony—coupled with the defendant’s lack of corroborating expert evidence and the trial court’s proper instructions—carried the day, and the convictions were affirmed.