No. 85-105
I N THE SUPREME COURT OF THE STATE OF MONTANA
1986
STATE O F MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
KENNETH C. STRANDBERG,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of C a s c a d e ,
T h e H o n o r a b l e J o e l G. R o t h , Judge p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
J u l i e A. M a c e k , P u b l i c D e f e n d e r , G r e a t F a l l s , Montana
F o r Respondent:
H o n . Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
K i m b e r l y A. K r a d o l f e r , A s s t . A t t y . G e n e r a l , H e l e n a
P a t r i c k L. P a u l , C o u n t y A t t o r n e y , G r e a t F a l l s , M o n t a n a
B a r b a r a B e l l , Deputy County A t t o r n e y , G r e a t Falls
S u b m i t t e d on B r i e f s : July 24, 1986
Decided: September 8, 1986
8" ;&h
Filed:
Clerk
Mr. J u s t i c e Frank B. Morrison, Jr. d e l i v e r e d t h e Opinion o f
t h e Court.
Defendant Kenneth Strandberg appeals his August 28,
1984, j u r y c o n v i c t i o n i n t h e E i g h t h J u d i c i a l D i s t r i c t C o u r t ,
County o f Cascade, on one c o u n t o f f e l o n y e s c a p e . W e affirm.
On February 13, 1984, defendant was confined in the
Cascade County J a i l f o l l o w i n g h i s a r r e s t on t h e c h a r g e o f
felony theft. Defendant was placed in the position of
t r u s t e e which a l l o w e d him g r e a t e r freedom i n t h e f a c i l i t i e s
and r e q u i r e d t h e performance o f c e r t a i n d u t i e s . On F e b r u a r y
24, 1984, d e f e n d a n t s t r u c k a n o t h e r t r u s t e e i n r e s p o n s e t o a
r a c i a l s l u r d i r e c t e d a t defendant. Defendant d i d n o t r e p o r t
the incident. However, one o f the jailers q u e s t i o n e d him
about it and d e f e n d a n t r e p l i e d t h a t h i s problems w i t h t h e
other t r u s t e e w e r e not serious.
On F e b r u a r y 25, 1984, d e f e n d a n t walked away from t h e
Cascade County J a i l . An a r r e s t w a r r a n t was i s s u e d and a n
information filed charging defendant with felony escape.
On May 25, 1984, t h e Cascade County S h e r i f f ' s Department
r e c e i v e d an anonymous t i p t h a t d e f e n d a n t was h i d i n g a t 1712
Colorado Avenue in Black Eagle. That same day officers
searched the residence and found defendant hiding in a
bedroom c l o s e t . The r e c o r d does n o t i n d i c a t e who was in
l e g a l possession of t h e residence, n o r whether t h e o f f i c e r s
had o b t a i n e d a s e a r c h w a r r a n t . Defendant was a r r e s t e d and
c h a r g e d w i t h e s c a p e p u r s u a n t t o 5 45-7-306, MCA.
Defendant was r e p r e s e n t e d by A r t Tadewaldt, a Cascade
County p u b l i c d e f e n d e r , u n t i l July 3, 1984. O that date,
n
d e f e n d a n t ' s c a s e was t r a n s f e r r e d t o a n o t h e r p u b l i c d e f e n d e r ,
Joe Engel. Engel appeared w i t h d e f e n d a n t a t t h e omnibus
h e a r i n g on August 2 , 1984, a t which t i m e d e f e n d a n t i n d i c a t e d
h e d i d n o t wish t o be r e p r e s e n t e d by anyone from t h e p u b l i c
defender's office. T r i a l was s c h e d u l e d f o r August 28, 1984.
Engel attempted t o meet w i t h defendant s e v e r a l times
p r i o r t o t r i a l b u t d e f e n d a n t r e f u s e d t o s e e him. The County
Attorney offered a plea bargain agreement which Engle
forwarded t o d e f e n d a n t . The m a t t e r came on f o r t r i a l August
28, 1984. Engel informed t h e d i s t r i c t judge t h a t he was n o t
familiar with the case due to defendant's failure to
cooperate. The d i s t r i c t judge q u e s t i o n e d d e f e n d a n t whether
he desired to represent himself, to which defendant
responded, " I might a s w e l l , because I ' m not s a t i s f i e d with
the public defender's services."
T r i a l was commenced w i t h d e f e n d a n t a c t i n g p r o s e t and
Engel p r e s e n t t o a s s i s t i f n e c e s s a r y . Engel conducted v o i r
d i r e of the potential jurors, r a i s e d o b j e c t i o n s throughout
the trial, assisted defendant in admitting evidence,
participated in the selection of jury instructions, and
delivered the summation. Defendant waived his opening
statement, but conducted cross-examination of each
p r o s e c u t i o n w i t n e s s , and c a l l e d two w i t n e s s e s t o t e s t i f y on
his behalf. Additionally, defendant took the stand to
testify.
Defendant presented the defense of justification,
c l a i m i n g t h a t he had been t h r e a t e n e d by t h e o t h e r t r u s t e e s
and e s c a p e d t o p r o c u r e h i s own s a f e t y . However, the j a i l
supervisor, and one of the jailers, each testified that
d e f e n d a n t d i d n o t r e p o r t concern f o r h i s own s a f e t y p r i o r t o
his escape, nor did defendant contact anyone a t t h e jail
subsequent t o h i s escape. The j u r y found d e f e n d a n t g u i l t y o f
felony escape. Defendant a p p e a l s and r a i s e s t h e f o l l o w i n g
issues:
1) Whether d e f e n d a n t was a f f o r d e d e f f e c t i v e a s s i s t a n c e
of c o u n s e l ?
2) Whether the District Court's refusal to grant a
c o n t i n u a n c e was an abuse o f d i s c r e t i o n ?
Prior to commencement of the trial, defendant informed
the district judge that he was not satisfied with the
services of the public defender's office, yet he was indigent
and could not afford an attorney. Defendant further stated
that he would represent himself. The district judge
permitted the trial to go on as scheduled, with Engel present
to assist defendant if necessary.
Defendant contends he did not assert his right to
self-representation, nor did he knowingly waive his
constitutional right to effective assistance of counsel. We
do not agree. Defendant's statements to the district judge
prior to trial amount to an assertion of his right to
self-representation. Defendant admitted that his indigency
precluded his having a private attorney, and yet he was not
satisfied with anyone in the public defender's office. The
district judge, although not required to do so, permitted
defendant to act pro se with Engle's assistance. ~othing
more could be done.
A review of the trial transcript reveals that defendant
raised the only possible defense available to him, which was
justification. In State v. Stuit (1978), 176 Mont. 84, 576
P.2d 264, this Court held that four conditions must exist at
the time of escape for justification to be an available
defense :
1) The defendant was faced with a specific threat
of death, or substantial bodily injury in the
immediate future.
2) There is no time for a complaint to the
authorities or there exists a history of futile
complaints which make any result from such
complaints illusory.
3) There is not time or opportunity to resort to
the courts.
4) The prisoner immediately reports to the proper
authorities when he has attained a position of
safety from the immediate threat.
In Stuit, we adopted an objective standard which
requires defendant to establish by a preponderance of the
evidence that escape is objectively the only viable and
reasonable choice a v a i l a b l e under the circumstances. 176
Mont. 90, 576 P.2d 267.
Defendant t e s t i f i e d t h a t a n o t h e r t r u s t e e had t h r e a t e n e d
him t h e day p r i o r t o h i s e s c a p e . Defendant d i d n o t complain
n o r v o i c e c o n c e r n s a b o u t h i s s a f e t y t o anyone. I n f a c t he
d e n i e d having s e r i o u s problems w i t h t h e o t h e r t r u s t e e s when
q u e s t i o n e d by one o f t h e j a i l e r s . Defendant t e s t i f i e d he had
done some amateur boxing and had won o t h e r f i g h t s h e ' d been
i n while incarcerated. Viewed o b j e c t i v e l y d e f e n d a n t was n o t
facing a specific threat of death, or substantial bodily
injury. Additionally, t h e e v i d e n c e was weak t h a t c o n d i t i o n s
( 2 ) and ( 3 ) were m e t , and it i s u n d i s p u t e d t h a t c o n d i t i o n ( 4 )
was n o t met.
Defendant c o n t e n d s t h a t h i s p u b l i c d e f e n d e r s h o u l d have
filed a motion to suppress evidence on grounds that the
a r r e s t i n g o f f i c e r s had no s e a r c h w a r r a n t a t t h e t i m e o f h i s
arrest. The c i r c u m s t a n c e s s u r r o u n d i n g d e f e n d a n t ' s a r r e s t a t
the residence are not in the record, and a claim t h a t a
s e a r c h w a r r a n t was n e c e s s a r y i s mere s p e c u l a t i o n .
Defendant ' s c l a i m o f i n e f f e c t i v e a s s i s t a n c e of counsel
h a s a b s o l u t e l y no m e r i t . First, a d e f e n d a n t who r e f u s e s t o
cooperate in his own d e f e n s e c a n n o t a r g u e he was a f f o r d e d
ineffective assistance of counsel. S t a t e v. Long (Mont.
19831, 669 P.2d 1068, 1072, 4 0 St.Rep. 1493, 1498. Secondly,
t h e method i n which d e f e n d a n t ' s d e f e n s e was conducted was n o t
s o d e f i c i e n t a s t o show any p r e j u d i c e t o d e f e n d e n t . There i s
substantial evidence in the record supporting the jury
verdict. To show p r e j u d i c e , a d e f e n d a n t must show t h a t , b u t
for c o u n s e l ' s u n p r o f e s s i o n a l e r r o r s , t h e r e was a r e a s o n a b l e
p r o b a b i l i t y t h a t t h e r e s u l t o f t h e p r o c e e d i n g would have been
different. S t a t e v . Robbins (Mont. 1 9 8 5 ) , 708 P.2d 227, 232,
4 2 St.Rep. 1440, 1444.
Next, defendant asserts the district judge erred in
refusing to grant a continuance. We do not agree. Pursuant
to § 46-13-202, MCA, the trial court has discretion whether
to grant a continuance. Section 46-13-202 (3) , MCA,
specifically provides that the trial court shall consider the
diligence shown on the part of the movant. In this case, an
order setting the trial date for August 28, 1984, was sent to
defendant on July 2, 1984. Defendant appeared at his omnibus
hearing approximately four weeks prior to trial.
Defendant moved for a continuance on the morning of
trial. This Court has previously ruled that moving for a
continuance on the morning of trial does not show diligence
on the part of the movant. State v. Klemann (Mont. 1981) ,
634 P.2d 632, 634, 38 St.Rep. 1627, 1629. We find no abuse
of discretion by the trial court in refusing to grant a
continuance in this instance.
The District Court is affirm
We concur: