No. 13236
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
STATE OF MONTAPJA,
Plaintiff and Respondent,
-vs-
ROBERT WAYNE MILLER,
Defendant and Appellant.
Appeal from: District Court of the Second Judicial District,
Honorable James D. Freebourn, Judge presiding.
Counsel of Record:
For Appellant:
Garnaas, Hall, Riley and Pinsoneault, Missoula,
Montana
Harold L. Garnaas argued, Missoula, Montana
For Respondent :
Mike Greely,-Attorney General, Helena, Montana
Allen B. Chronister argued, Assistant Attorney
General, Helena, Montana
John G. Winston, County Attorney, Butte, Montana
Nadine D. Scott argued, Deputy County Attorney,
Butte, Montana
Submitted: June 3, 1977
Decided:
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
his is an appeal from the district court, Silver Bow
County, in which Robert Wayne Miller was convicted of the crime
of possession of dangerous drugs. From this conviction, he appeals.
Defendant was charged on January 15, 1975, in Butte with
the crime of possession of dangerous drugs. On January 16, 1975,
the court appointed public defender Mark Sullivan as defendant's
counsel. On Thursday, May 21, 1975, the date the trial was to
commence, Sullivan filed a motion to suppress evidence. This mo-
tion was denied as being untimely.
Trial commenced and after the state presented its case,
discussion was had between the court and defendant regarding Sulli-
van's competency as his attorney. Defendant openly stated to the
court that he was not satisfied with his counsel, Sullivan, and he
wanted to obtain another attorney at his own expense. Sullivan
moved for a mistrial. This motion for a mistrial was denied. Judge
Freebourn continued the case until May 23, 1975.
Sullivan and defendant both contacted H. L. Garnaas, a
Missoula attorney, to find out if Garnaas would take over the de-
fense. Over the Memorial Day weekend, Miller did obtain the services
of Garnaas and Garnaas appeared in court on Tuesday morning, May 26,
1975, with Sullivan. Garnaas moved for permission to represent
defendant and to release Sullivan. The court discharged Sullivan
from representing defendant, however, he was to remain in the court-
room as an officer of the court to aid Garnaas. Defense counsel
was ordered to proceed with its case at which time Garnaas made an
opening statement and rested. Instructions were settled, closing
arguments were made and the case went to the jury. The jury re-
turned a verdict of guilty. Defendant appeals.
The issue presented for review is whether defendant was
denied effective assistance of counsel by reason of his conduct or
otherwise.
It is defendant's contention he was denied the assistance
of counsel, a right guaranteed by the Sixth and Fourteenth Amend-
ments of the United States Constitution. He feels that Sullivan
was ineffective in his representation by not submitting his motion
to suppress certain evidence until the day of the trial. Defendant
contends Garnaas's representation was inadequate because he had an
unreasonably short period of time in which to prepare for trial,
and he was not present to hear the state's case presented and to
cross-examine witnesses.
Understandably, the standard against which an inadequacy of
counsel claim must be measured is an extremely rigorous one. In
the eyes of a convicted defendant, the judgment against him may well
stand as incontrovertible proof that his counsel was inadequate.
United States ex rel. Rosner v. Commissioner, N.Y. State Depart.
of Corrections, 421 F. Supp. 781, 790. Thus, to prevail on a claim
of constitutionally inadequate representation, a defendant must
meet the burden of proving his counsel's performance was so woefully
inadequate as to shock the conscience of the court and make the
resultant proceeding a farce and mockery of justice. United States
v. Currier, 405 F.2d 1039, 1043, cert. denied 395 U.S. 914, 89 S.Ct.
1761, 23 L ed 2d 228.
On January 16, 1975, the trial court appointed the public
defender in Butte, Mark Sullivan, to represent defendant, and he
did so at the arraignment on January 28, 1975. At the arraignment
the court cautioned defendant there would be a jury trial sometime
between February and June and he should maintain close contact with
his attorney. In the interval between arraignment and trial ~ u l l i -
van lost contact with defendant. Defendant finally called Sullivan
a week to ten days prior to the May 21 trial date and stated he
knew ~ullivanwas no longer the public defender and that he had
been trying to retain his own counsel. Sullivan cautioned defend-
ant to do so promptly and to call him back the next day. Sullivan
heard nothing further from defendant until the night before trial.
This obviously placed Sullivan in the untenable position of having
to prepare a case defendant had led him to believe would be pre-
pared by another attorney. Defendant's conduct, in not keeping in
contact with his attorney, put himself in a situation of not having
ten days before trial to file a motion to suppress. This Court
stated in McDonald v. McNinch, 63 Mont. 308, 316, 206 P. 1096, that
a party who participates in or contributes to an error cannot com-
plain of it. Defendant cannot complain of his attorney's failure
to file the suppression motion timely, because the untimely filing
was caused by his own inadvertance.
From a review of the district court record it appears
Sullivan did an outstanding job in defendant's behalf during the
state's case-in-chief, and came close to persuading the trial court
to dismiss the charges when the state rested. Despite this record,
defendant maintained he was not having a fair trial and that he was
being inadequately represented. By the third day of trial (Friday)
defendant had contacted and retained his present counsel, Garnaas,
and the court granted a continuance until the next Tuesday.
When trial reconvened on that day, it was developed in the
record that defendant contacted Garnaas's office in Missoula the
preceding Thursday afternoon, but that Garnaas was only able to
talk to defendant by phone on Saturday. During that conversation,
defendant refused to go to Missoula to consult with his new attorney,
Garnaas, because he was busy preparing the case himself! Thus,
Garnaas was likewise placed in an untenable situation, since,
while he would have had three full days (Saturday, Sunday, ond day)
to consult with his client and prepare a defense, he was reduced
to a single telephone call. However, Mark Sullivan did
drive to Missoula on Saturday and brought Garnaas up to date
on the case, the best he could.
Although the attorney client relationship is ordinar-
ily a private matter, a defendant does not have the unbridled
right to discharge counsel on the eve of trial. United States
v. Grow, 394 F.2d 182, 209; State v. Bubnash, 139 Mont. 517,
366 P.2d 155. While it is incumbent upon a trial court to
allow new counsel time to prepare for trial, (State v. Blakes-
lee, 131 Mont. 47, 51, 306 P.2d 1103),the trial court allowed
defendant from Friday afternoon until Tuesday morning to con-
sult with Garnaas, which defendant declined to do. Further,
Garnaas had the assistance of Sullivan during the recess and,
by the court's order, during the remainder of the trial as
an officer of the court. Defendant cannot discharge counsel
who had adequately represented him and then complain of a
violation of his constitutional rights. State v. Forsness,
159 Mont. 105, 495 P.2d 176.
It is clear defendant was not denied effective assist-
ance of counsel and the problems presented here were the re-
sult of defendant's own actions.
The judgment of the trial court and its denial of
motion for a new trial are affirmed.
W e Concur:
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C h i e f Justic