12/23/2025
DA 23-0646
Case Number: DA 23-0646
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 295
MARK KAPPS,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and For the County of Fallon, Cause No. DV-2022-20
Honorable Nickolas C. Murnion, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Nicholas T. Hine, Hine Law PLLC, Brooklyn, New York
For Appellee:
Austin Knudsen, Montana Attorney General, Mardell Ployhar,
Assistant Attorney General, Helena, Montana
Darcy Wassmann, Fallon County Attorney, Thorin Geist, Special
Deputy County Attorney, Baker, Montana
Submitted on Briefs: October 8, 2025
Decided: December 23, 2025
Filed:
__________________________________________
Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 Mark Kapps appeals from the order of the District Court for the Sixteenth Judicial
District, Fallon County, denying his petition for postconviction relief which was premised
on claims of ineffective assistance of counsel. While the District Court denied Kapps’s
claims on procedural grounds, as well as on the merits, the State acknowledges on appeal
that Kapps’s claims are not procedurally barred. Thus, we restate the issue on appeal as
follows:
Whether the District Court erred in denying Kapps’s petition for postconviction
relief on the merits.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 On August 3, 2014, Kapps drove his fiancé, Miranda Thomas (Miranda), to work at
the Sagebrush Inn in Baker, Montana. Miranda worked with her sister, Stephanie Craig
(Stephanie), who managed the inn and lived on site in a home attached to the inn’s lobby,
along with her husband and three children, M.C., C.C., and Z.C. While Miranda worked,
Kapps and his infant son spent the day at the Craig home, which they often did on weekends
when Miranda was working.
¶3 On August 4, 2014, Stephanie contacted the Baker Police Department and reported
that M.C. had been molested by Kapps. According to Stephanie, M.C. had told C.C. that
Kapps put his hand down her pants while he had been over at the house the day before.
C.C. had then told Miranda, who then told Stephanie. The Baker Police Department
conducted interviews with M.C., C.C., and Stephanie, gathered evidence from the Craig
home, and arranged for a SANE exam to be conducted on M.C. Officer Paul Sutter and
2
Officer Justin LaCroix interviewed Kapps. Several days later, Stephanie called the
Baker Police Department requesting they retrieve a stained Toy Story blanket that M.C.
had identified as something Kapps had used to cover them while he touched her. On
December 31, 2014, the State Crime Lab issued a Serology/DNA Report concluding that
the major DNA profile from the stained blanket matched DNA provided by Kapps.
¶4 On March 27, 2015, the State charged Kapps by Information with sexual assault, in
violation of § 45-5-502, MCA, and sexual intercourse without consent, in violation of
§ 45-5-503, MCA. The State alleged that Kapps molested his fiancée’s seven-year-old
niece, M.C. Kapps retained David S. Freedman as counsel and pled not guilty to the
charges.
¶5 A four-day trial commenced on February 9, 2016, during which the State called
M.C. and various family members to testify, as well as law enforcement officers and crime
lab employees. Officer Sutter testified to his involvement in the department’s investigation
of Kapps and explained that he took photos of evidence at the Craig home and conducted
the initial interview of Kapps. The State presented a video recording of Sutter’s interview
with Kapps to the jury. Throughout the interview Kapps was adamant that he did not touch
M.C. and Sutter repeatedly made statements to Kapps regarding his guilt. The video shows
Sutter specifically stating, “we pretty much have the picture drawn,” “we’ve heard [M.C.’s]
story and we believe it,” “7-year-olds don’t make up stories,” “we know who did it,” and
“be a man, take responsibility.”
¶6 On cross-examination, Freedman asked Sutter a series of questions about why he
had believed Kapps was guilty at the time of the interview. Sutter testified that he
3
considered Kapps guilty approximately 13 minutes into the interview, after Kapps stated
that he didn’t watch or touch M.C. as she got dressed. Sutter explained that he considered
this statement by Kapps to be a “submind confession” and that another “red flag” had been
when Kapps listed all the names of his family members and their kids prior to stating
M.C.’s name. When Freedman asked questions about Kapps’s willingness to cooperate
with law enforcement, Sutter stated that while Kapps was willing to talk to them, the
interview “didn’t have a flow of honesty to it,” and that Kapps was “acting” when he
appeared to break down and cry at the end. Freedman also asked Sutter a series of questions
regarding his training and whether drawing a conclusion about Kapps’s guilt so early in
the investigation was contrary to it. Sutter responded that when “they take [the child’s]
word as truthful and you add all the things together uh, if there’s no evidence to point you
elsewhere then uh, guilt is guilt.” Freedman went on to ask Sutter if, based on his training,
he was surprised Kapps refused to provide a DNA sample without a court order, to which
Sutter stated, “If you[’re] innocent you[’re] gonna have to prove your innocence and if
that’s what you can do to prove your innocence.”
¶7 Freedman also followed up with Sutter about a statement he had made about
seven-year-olds not making up stories. In response, Sutter testified, “7 year olds don’t
make uh, if they tell a story they don’t have details and being as detailed as the—of what
we were told isn’t a 7 year old—something a 7 year old would have been exposed to.”
Freedman followed up by asking Sutter whether he believed M.C.’s statements at the time
of the interview or whether he was using them to try to elicit an admission from Kapps. In
response, Sutter testified that “we believed M.C. to be truthful.”
4
¶8 In his closing argument, Freedman stated to the jury,
[Sutter’s] mind was made up right off the bat. And even with that prism,
everything from his questioning to the way he handled the investigation was
from the presumption of guilt. Not to find out what happened. And I submit
to you that that clouded his investigation and he was . . . the most senior
officer so he was going to be the one that was going to provide information
because of his prior dealings with cases involving children and the fact that
he was the most experienced person involved in the investigation and I argue
to you that that—that clouded his—his judgment.
¶9 The jury found Kapps guilty on both counts. Kapps filed a direct appeal
to this Court raising several issues, including ineffective assistance of counsel. This
Court affirmed Kapps’s conviction and sentence on August 22, 2017. State v. Kapps,
No. DA 16-0513, 2017 MT 207N,
2017 Mont. LEXIS 537. On August 22, 2018, Kapps
filed a petition for postconviction relief.
¶10 On June 18, 2019, while Kapps’s petition for postconviction relief was pending, this
Court disbarred Freedman from the practice of law following a series of disciplinary
actions. See In re Freedman, No. PR 16-0239, Order (Mont. Dec. 6, 2016) (ordering
Freedman be publicly censured for admittedly violating the Rules of Professional
Conduct, including M. R. Pro. Cond. 1.1, 1.3, 1.4, 1.16(d), and 3.4(d)); In re Freedman,
No. PR 18-0034, Order (Mont. Oct. 30, 2018) (ordering Freedman be suspended from the
practice of law for seven months following his failure to file a timely appeal at the request
of his client and his failure to appear at a hearing on his client’s motion); In re Freedman,
No. PR 18-0516, Order (Mont. June 18, 2019) (ordering Freedman be disbarred following
a complaint by a client which Freedman subsequently failed to respond to, leaving the
Commission on Practice unable to opine as to the reasons for his conduct).
5
¶11 On August 2, 2021, Kapps filed an amended petition for postconviction relief,
arguing that Freedman rendered ineffective assistance of counsel by failing to effectively
cross-examine M.C. and challenge her competency as a witness. Additionally, Kapps
argued that Freedman rendered ineffective assistance of counsel in his cross-examination
of Sutter. Kapps asserted that Freedman elicited improper and damaging testimony from
Sutter by repeatedly asking Sutter to comment on the credibility of both M.C. and Kapps.
¶12 The District Court ordered the State to respond to Kapps’s petition and scheduled
an evidentiary hearing. After the petition was fully briefed, the District Court issued both
a subpoena ordering Freedman to attend the evidentiary hearing, and a Gillham order1
directing Freedman to respond to the allegations set forth in Kapps’s petition. However,
Freedman avoided service of the subpoena, failed to respond to the District Court’s order,
and failed to attend the evidentiary hearing, which took place on June 13, 2023.
¶13 On September 22, 2023, the District Court issued its order denying Kapps
postconviction relief, concluding that Kapps’s claims were procedurally barred. The
District Court also denied Kapps’s claims on the merits. Kapps appeals, asserting that the
District Court erred in denying his claims of ineffective assistance of counsel regarding
1
In re Gillham, 216 Mont. 279,
704 P.2d 1019 (1985). A Gillham order is court authorization for
defense counsel to respond to a defendant’s allegations of ineffective assistance of counsel,
allowing counsel to disclose otherwise privileged attorney-client communications, as necessary
for the court to “ascertain the truth of such allegations.” An attorney ordered to respond pursuant
to a Gillham order is immune from disciplinary proceedings and charges of malpractice related to
the information, documents, and testimony necessarily provided in response. See Marble v. State,
2007 MT 98, ¶ 4,
337 Mont. 99,
169 P.3d 1148.
6
Freedman’s cross-examination of Sutter. The State concedes that Kapps’s claim is not
procedurally barred.
STANDARD OF REVIEW
¶14 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. Stock v. State, 2014 MT 46, ¶ 9,
374 Mont. 80,
318 P.3d
1053. Claims of ineffective assistance of counsel are mixed questions of law and fact that
are reviewed de novo. Whitlow v. State,
2008 MT 140, ¶ 9,
343 Mont. 90,
183 P.3d 861.
DISCUSSION
¶15 Whether the District Court erred in denying Kapps’s petition for postconviction
relief on the merits.
¶16 Criminal defendants are guaranteed the right to effective counsel under both the
United States Constitution and the Montana Constitution. U.S. Const. amend. VI; Mont.
Const. art. II, § 24. This Court reviews claims of ineffective assistance of counsel by
applying the two-prong test articulated by the U.S. Supreme Court in Strickland v.
Washington, 466 U.S. 688,
104 S. Ct. 2052 (1984). State v. Racz,
2007 MT 244, ¶ 22,
339 Mont. 218,
168 P.3d 684. Under Strickland, a defendant must demonstrate that
(1) counsel’s performance was deficient, and (2) counsel’s deficient performance
prejudiced the defense such that the defendant was deprived of a fair trial. Racz, ¶ 22. To
prevail on a claim of ineffective assistance of counsel, a defendant must satisfy both
prongs; “if an insufficient showing is made regarding one prong of the test, there is no need
to address the other prong.” Whitlow, ¶ 11 (citation omitted).
7
¶17 Kapps’s claims of ineffective assistance of counsel are premised entirely on
Freedman’s cross-examination of Sutter. Kapps asserts that Freedman elicited testimony
regarding Sutter’s opinions as to the credibility of both Kapps and M.C. and that such
testimony was not only improper and indicative of plain error, but also severely damaging
to Kapps’s credibility as a witness. According to Kapps, Freedman’s cross-examination of
Sutter called into question the fundamental fairness of the trial and was both deficient and
prejudicial, satisfying both prongs of Strickland.
¶18 To establish deficient performance as required under Strickland’s first prong, it must
be shown that counsel’s representation “fell below an objective standard of reasonableness
measured under prevailing professional norms and in light of the surrounding
circumstances.” Whitlow, ¶ 20. The errors of counsel must be so serious that counsel
ultimately failed to function as the “counsel” guaranteed to the defendant by the Sixth
Amendment. Strickland, 466 U.S. at 687,
104 S. Ct. at 2064. However, a reviewing court
“must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland,
466 U.S. at 689,
104 S. Ct. at 2065. A
defendant claiming ineffective assistance of counsel bears a heavy burden in overcoming
the presumption that the challenged action might have been a product of sound trial strategy
under the circumstances. Strickland,
466 U.S. at 689,
104 S. Ct. at 2065; Whitlow, ¶ 21.
“It should go without saying that the absence of evidence cannot overcome [it].” Burt v.
Titlow,
571 U.S. 12, 23,
134 S. Ct. 10, 17 (2013) (citations omitted).
¶19 In considering whether counsel’s performance was deficient, “every effort must be
made to ‘eliminate the distorting effects of hindsight, to reconstruct the circumstances of
8
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time.’” Whitlow, ¶ 15 (quoting Strickland, 466 U.S. at 689,
104 S. Ct. 2065). Tactical
decisions that are objectively reasonable should not be second guessed. See Whitlow, ¶ 19.
“In fact, even if there is reason to think that counsel’s conduct was far from exemplary, a
court still may not grant relief if the record does not reveal that counsel took an approach
that no competent lawyer would have chosen.” Dunn v. Reeves,
594 U.S. 731, 739,
141 S.
Ct. 2405, 2410 (2021) (citations omitted).
¶20 Relying on our decision in State v. Hayden,
2008 MT 274,
345 Mont. 252,
190 P.3d
1091, Kapps argues that it was not objectively reasonable for Freedman—as defense
counsel—to repeatedly ask Sutter—the State’s witness—for his opinion on the credibility
of Kapps and M.C. Kapps’s reliance on Hayden, however, is unpersuasive.
¶21 In Hayden, we held that a defendant’s constitutional right to a fair trial was
undermined by plain error committed by the prosecution. Hayden, ¶ 34. At trial, during
the prosecution’s case-in-chief, two witnesses recanted statements they had provided to
detectives in earlier interviews. Hayden, ¶ 9. On rebuttal, the prosecutor called the
detective who had initially interviewed the two witnesses and asked whether the detective
believed the statements provided during their earlier interviews were true, and which
statements—the interview statements or the in-court testimony—were more believable.
Hayden, ¶ 12. The detective testified that he believed the interview statements to be true.
Hayden, ¶ 12. Additionally, the prosecutor went on to tell the jury during their closing
argument that the detective was “believable” and that the jury could “rely on” their
testimony. Hayden, ¶ 14. The prosecutor also stated that he knew the detectives in the
9
case did “good work” and that he also knew that the evidence the detectives had seized was
in fact related to the charges. Hayden, ¶ 14. Invoking plain error review, we held that the
prosecutor’s conduct—their comments during closing argument and their elicitation of
improper testimony—invaded the province of the jury such that the fundamental fairness
of the trial was called into question. Hayden, ¶¶ 30-33.
¶22 Kapps asserts that Freedman’s conduct reflects that of the prosecutor in Hayden,
and because such conduct constitutes plain error when committed by a prosecutor, it stands
to reason that such conduct falls below the objectively reasonable standard when
committed by a defense attorney. However, the plain error committed in Hayden was not
simply the product of the improper testimony elicited by the prosecutor, it was the result
of the cumulative effect of multiple instances of prosecutorial misconduct which ultimately
called into question the fundamental fairness of the proceedings. Hayden, ¶¶ 31-33; see
State v. Aker, 2013 MT 253, ¶ 28,
371 Mont. 491,
310 P.3d 506. Further, unlike the
prosecutor in Hayden, Freedman did not ask Sutter to provide his opinion regarding the
veracity of statements made by Kapps or M.C. at trial. Rather, Sutter was asked only about
his beliefs regarding Kapps and M.C. at the time of the interview.
¶23 As Kapps acknowledges, the outcome of the case depended on whether the
jury believed Kapps’s version of events over M.C.’s. Rather than attack the victim—a
child—Freedman attacked the investigation. Throughout trial, Freedman highlighted
inconsistencies in witness statements and evidence, and he questioned law enforcement’s
procedures and the detectives’ tunnel vision when it came to Kapps being the perpetrator.
It was clear from the video of Kapps’s interview, which was played for the jury prior to
10
Freedman’s cross-examination of Sutter, that Sutter believed Kapps was guilty. Freedman
merely addressed the statements Sutter made and the hasty conclusions Sutter appeared to
reach throughout the interview to demonstrate that Sutter’s perception of guilt was based
on a rushed judgment and not the evidence at hand. After establishing that Sutter had
concluded Kapps’s guilt only 13 minutes into the interview, Freedman pressed Sutter on
whether drawing such a conclusion so early in an investigation was consistent with his
training. Sutter responded to Freedman’s line of questioning with several statements
suggesting that Sutter’s perception of guilt was generally inconsistent with the presumption
of innocence. Such statements include, “if there’s no evidence to point you elsewhere then
uh, guilt is guilt,” and “[i]f you[’re] innocent you[’re] gonna have to prove your
innocence.”
¶24 Freedman’s cross-examination was sound trial strategy under the circumstances.
The jury was already aware from the interview that Sutter believed Kapps to be guilty.
Freedman’s cross-examination was designed to raise doubts about the basis for that belief.
To be sure, Freedman used the testimony elicited from Sutter in his closing argument to
assert that Sutter’s preconceptions of guilt “clouded his judgment” and ultimately led to an
inadequate investigation, undermining the State’s conclusion that Kapps was the
perpetrator of the crime. While Kapps asserts that Freedman completely eschewed the
defense attorney standard of asking leading questions during cross-examination, he has
failed to offer any legal authority or expert testimony concerning the prevailing
professional norms applicable to Freedman’s conduct. And although we cannot say that
Freedman’s performance was exemplary, the record has not revealed that Freedman took
11
an approach that no competent lawyer would have. Accordingly, Kapps has failed to
overcome the presumption that Freedman’s conduct was based on sound trial strategy and
within the wide range of reasonable professional assistance.
¶25 Nonetheless, Kapps argues that under the unique circumstances of this case, we
should find that Freedman’s disbarment and his absence from the proceedings weigh in
favor of finding deficient performance. Relying on our decision in Heath v. State,
2009 MT 7,
348 Mont. 361,
202 P.3d 118, Kapps argues that it would be unfair and unjust
to fault Kapps for Freedman’s unwillingness to respond to Kapps’s allegations. Kapps’s
reliance on Heath, however, is misplaced.
¶26 In Heath, we considered whether a district court erred by denying a petition for
postconviction relief without an evidentiary hearing. Heath, ¶ 3. The petition at issue set
forth numerous claims of ineffective assistance of counsel, but the record failed to set forth
counsel’s reasoning regarding their pre-trial actions and decisions at trial. Heath, ¶ 8.
Accordingly, the district court ordered counsel to respond to the petitioner’s claims,
recognizing that a response was necessary for resolution. Heath, ¶ 8. However, counsel
died prior to filing any response. Heath, ¶ 8. The petitioner requested an evidentiary
hearing, but the district court denied the request, concluding that a hearing would not be
beneficial due to the unavailability of counsel. Heath, ¶ 20. On appeal, we recognized that
the untimely death of counsel presented a “unique circumstance” which “should not result
in an insurmountable barrier to [a petitioner’s] attempt to obtain the information necessary
to meet [their] Strickland burden.” Heath, ¶ 24. We reversed and remanded, holding that
the district court abused its discretion in denying the petition absent a hearing because the
12
petitioner was ultimately denied any alternative means of inquiry into counsel’s reasoning.
Heath, ¶ 24.
¶27 Here, the circumstances surrounding Freedman’s unavailability have not resulted in
any insurmountable barrier to relief. Unlike the petitioner in Heath, Kapps was afforded
an evidentiary hearing. While Freedman’s unavailability and disbarment may constitute
unique circumstances warranting an evidentiary hearing, a petitioner is not entitled to
postconviction relief simply because trial counsel failed to respond to their allegations of
ineffective assistance of counsel. Nor does an attorney’s failure to others establish per se
deficient performance. Absent a link between Freedman’s performance in this action and
his violations of professional conduct in other non-related matters, Freedman’s subsequent
deficiencies fail to support a finding of ineffective assistance of counsel in regards to
Kapps’s trial.
¶28 Accordingly, Freedman’s performance was not deficient under Strickland, and the
District Court did not err in denying Kapps’s petition for postconviction relief. While
Freedman’s performance was far from exemplary, it is entitled to the presumption of sound
trial strategy. An evidentiary hearing was conducted, providing Kapps an opportunity to
develop his claims and present non-record evidence. Freedman’s failure to participate in
postconviction relief proceedings does not automatically render his performance at trial
deficient, nor does his subsequent disbarment.
¶29 In any event, Freedman fails to satisfy the second prong of Strickland, which
requires a defendant to show a reasonable probability that, but for counsel’s deficient
performance, the result of the proceeding would have been different. Heath, ¶ 14 (citing
13
Strickland, 466 U.S. at 687,
104 S. Ct. at 2064). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland,
466 U.S. at 694,
104 S.
Ct. at 2068.
¶30 Here, as discussed above, the jury had watched Sutter’s interview of Kapps prior to
Freedman’s cross-examination, in which Sutter repeatedly stated to Kapps that he knew
Kapps did something to M.C. and that seven-year-olds do not make up these kinds of
allegations. The jury could reasonably conclude from the interview that Sutter believed
Kapps was guilty and M.C. to be truthful, regardless of Freedman’s cross-examination.
Further, M.C.’s allegations were corroborated by DNA evidence. Kapps’s semen was
found on the Toy Story blanket that M.C. said Kapps used to cover them both while he
sexually abused her. Joseph Pasternak of the Montana State Crime Lab testified that the
major profile of DNA found on the blanket matched that provided by Kapps and that the
same major profile would be found in only 1 in every 21.9 quintillion Caucasians. Given
the strength of this evidence, there is not a reasonable probability that Freedman’s
cross-examination of Sutter affected the outcome of the case. Accordingly, Kapps has
failed to establish that he was prejudiced by Freedman’s allegedly deficient performance.
CONCLUSION
¶31 In sum, Kapps has failed to establish ineffective assistance of counsel under
Strickland. Not only has Kapps failed to overcome the presumption that Freedman’s
cross-examination fell within a wide range of reasonable professional assistance, as
required under Strickland’s first prong, but Kapps also failed to establish that he was
14
prejudiced by such conduct, as required under Strickland’s second prong. Consequently,
the District Court did not err in denying Kapps’s petition for postconviction relief.
¶32 Affirmed.
/S/ INGRID GUSTAFSON
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ KATHERINE M. BIDEGARAY
/S/ BETH BAKER
/S/ JIM RICE
15
