State v. Strandberg

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: