No. 91-134
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DAVID JAMES CHRISTENSON, "JV 1 3 '1994
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Edward G. Beaudette, Knight, Dahood, McLean &
Everett, Anaconda, Montana.
For Respondent:
Hon. Marc Racicot, Attorney General, Helena,
Montana; Barbara Harris, Assistant Attorney
General, Helena, Montana; Robert L. Deschamps,
County Attorney, Missoula, Montana.
Submitted on briefs: August 1, 1991
,.- 0
Decided: November 19, 1991
Filed: ! 6'
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Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
The defendant, David James Christenson, appeals his
convictions of criminal possession of cocaine, criminal possession
of methamphetamine and criminal possession of dangerous drug
paraphernalia following a jury trial in the District Court of the
Fourth Judicial District, Missoula County. We affirm.
The defendant raises the following issues:
1. Was the defendant denied effective assistance of counsel
arising from a conflict of interest of trial counsel?
2. Was the defendant denied effective assistance of counsel
as a result of trial counsel's stipulation to the admission of a
videotape of the crime scene into evidence?
3. Did the District Court err by allowing the jury to view
the videotape during deliberations?
On September 5, 1989, a search warrant was executed at 911
Charlo, Missoula, Montana, by members of the Missoula County
Sheriff's Department, the Missoula City Police Department and the
Montana Criminal Investigation Bureau. The defendant answered the
door to the residence and, upon entry, officers found Robert L.
Peterson exiting one of the bedrooms. By checking identification
and paperwork in the two bedrooms of the residence, officers
established that one bedroom was occupied by the defendant and the
other was occupied by Peterson.
Both the defendant and Peterson were arrested and transported
to jail shortly after officers arrived. The officers continued
their search of the residence and, as they conducted their search,
2
a videotape was made of the items found and the rooms in which they
were found.
In the bedroom occupied by the defendant, officers found the
defendant's wallet, including his driver's license, and an envelope
and numerous prescription pill bottles with his name on them. On
top of the dresser, in plain view, Detective Larry Jacobs found a
plastic bag containing white powder residue which was later
identified as cocaine. In plain view on another dresser, Detective
Jacobs found a spoon with white powder on it which was later
identified as methamphetamine. Detective Jacobs also found a pipe
in a dresser drawer. Cannabinol, a substance contained in
marijuana, later was determined to be in the residues in the pipe.
Detective Jacobs also found thirteen bindles, or folded paper
containers, in the dresser. Three of the bindles contained
methamphetamine. Numerous other items were found in the
defendant's and Peterson's bedrooms, including additional dangerous
drugs, scales, a police scanner and loaded weapons.
On September 12, 1989, the defendant was charged by
information with criminal possession of Valium, criminal possession
of methamphetamine with intent to sell, and criminal possession of
dangerous drug paraphernalia. An amended information was filed on
June 1, 1990, charging the defendant with criminal possession of
cocaine, criminal possession of methamphetamine with intent to sell
and criminal possession of dangerous drug paraphernalia.
A jury trial was held on October 29 through 31, 1990 on the
charges stated in the amended information. During trial, the
3
defendant's trial counsel, William Dee Morris, stipulated to the
admission of the videotape into evidence with the provision that it
be played without sound. After the jury began its deliberations,
it requested a video cassette recorder in order to view the
videotape. The court allowed the jury to view the videotape
without volume in the jury room.
On October 31, 1990, the jury found the defendant guilty of
criminal possession of cocaine, a lesser included offense of
criminal possession of methamphetamine, and criminal possession of
dangerous drug paraphernalia. Following trial, the defendant
retained new counsel. The defendant was sentenced on December 6,
1990 to five years imprisonment in the Montana State Prison on the
first two counts and to six months in the Missoula County Jail on
the third count. The sentences on the first and third counts are
to run concurrently: the sentence on the second count is to run
consecutively and was suspended on certain terms and conditions.
The defendant appeals his convictions.
I
Was the defendant denied effective assistance of counsel
arising from a conflict of interest of trial counsel?
The Sixth Amendment guarantee of effective assistance of
counsel is comprised of two correlative rights. The first is the
right to counsel of reasonable competence. McMann v. Richardson
(1970), 3 9 7 U.S. 759, 770- 71, 90 S.Ct. 1441, 1448- 49, 25 L.Ed.2d
763, 773. The second is the right to counsel's undivided loyalty.
Wood v. Georgia (1981), 450 U.S. 261, 271- 72, 1 0 1 S.Ct. 1 0 9 7 , 1103-
4
04, 67 L.Ed.2d 220, 230.
The United States Supreme Court has articulated several
standards by which to determine whether these rights have been
violated. General claims of ineffective assistance of counsel
involving challenges to counsel Is competency or performance are
reviewed under the two-pronged test articulated in Strickland v.
Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.
However, in cases raising claims of ineffective assistance of
counsel due to conflicts of interest, the Strickland Court retained
the standard articulated in Cuyler v. Sullivan (1980), 446 U.S.
335, 100 S.Ct. 1708, 64 L.Ed.2d 333. Under Cuvler, a defendant
must show: (1) that counsel actively represented conflicting
interests, and (2) that an actual conflict of interest adversely
affected counsel's performance. Cuyler, 446 U.S. at 350.
Where an ineffective assistance of counsel claim is based on
an alleged conflict of interest, rather than a lack of reasonable
competence, prejudice is presumed if the defendant satisfies both
prongs of the Cuvler test. Strickland, 466 U.S. at 692. In such
a situation, the presumption of prejudice is warranted because the
duty of loyalty, "perhaps the most basic of counsel's duties," is
breached and "it is difficult to measure the precise effect on the
defense of representation corrupted by conflicting interests."
Strickland, 466 U.S. at 692. Although Cuvler involved a conflict
of interest between clients, the presumption of prejudice extends
to conflicts between the client and his or her counsel's personal
interests. Mannhalt v. Reed (9th Cir. 1988), 847 F.2d 576, 580.
5
A short time after the defendant's convictions in the District
Court, his trial counsel, William Dee Morris, was charged by
federal authorities with conspiracy to manufacture and distribute
methamphetamine, income tax fraud arising from the sale of
methamphetamine and other associated criminal activity. The
defendant contends that because of Morris' "apparent participation
in the use, manufacture and distribution of methamphetamine at the
same time" he was representing the defendant, the first prong of
the Cuvler test is satisfied because an actual conflict of interest
existed. The defendant cites Mannhalt, in which the Ninth Circuit
Court of Appeals held that an actual conflict of interest exists
when an attorney is accused of crimes similar or related to those
of his client, in support of his argument. Mannhalt, 8 4 7 F.2d at
581.
The defendant asserts that the second prong of the Cuvler test
can be presumed from the overall lack of aggressiveness shown by
trial counsel in cross-examination and in counsel's failure to
establish critical facts in presentation of the defense. He argues
that a reading of the transcript demonstrates the lack of a
coherent defense strategy and an avoidance of inquiry into issues
such as Robert Peterson's source for the methamphetamine which he
testified he brought into the defendant's residence.
In Mannhalt, the defendant, Guenter Mannhalt, was tried on
charges of conspiracy to commit robbery, robbery, attempted
robbery, and possession of stolen property. Before trial, a
witness for the prosecution told police officers that Mannhalt's
6
trial counsel had purchased stolen property. Counsel became aware
of this accusation while preparing for Mannhalt's trial and,
although he discussed the accusation with Mannhalt, he did not
point out a potential conflict of interest. Counsel then
represented Mannhalt at trial and Mannhalt was convicted. In
Mannhalt's claim for federal habeas corpus relief, the Ninth
Circuit Court of Appeals held that the first prong of the Cuvler
test was satisfied, stating:
We find that when an attorney is accused of crimes
similar or related to those of his client, an actual
conflict exists because the potential for diminished
effectiveness in representation is so great. For
example, a vigorous defense might uncover evidence of the
attorney's own crimes, and the attorney could not give
unbiased advice to his client about whether to testify or
whether to accept a guilty plea.
Mannhalt, 847 F.2d at 581.
In this case, the defendant relies solely on the fact that
shortly after his convictions in District Court, his trial counsel
was charged by federal authorities with similar criminal offenses.
Although the defendant asserts that Morris' participation in drug-
related offenses during the time of Morris' representation is
apparent, he does not allege that a conflict of interest existed
because the basis of the federal charges were acts committed by
Morris during Morris' representation or that Morris was under
investigation by federal authorities during Morris' representation
of him. In Mannhalt, trial counsel's personal interests were
conclusively shown to be at odds with those of the defendant durinq
the time of his representation of the defendant because he was
accused of a crime similar or related to those of the defendant
7
during that time. Therefore, an actual conflict of interest
existed. However, we do not read Mannhalt to imply that an actual
conflict of interest exists where the only basis for the alleged
conflict is a similar but unrelated charge against trial counsel
occurring after the defendant was tried and convicted. In such a
situation, whether counsel actually represented conflicting
interests is left to speculation. At best, a "possibility" of a
conflict of interest exists which "is insufficient to impugn a
criminal conviction." Cuvler, 446 U.S. at 350. We are not
convinced that an actual conflict existed in this case between the
defendant and his trial counsel.
Even assuming arcruendo that an actual conflict of interest
existed between trial counsel and the defendant, the defendant
cannot establish that the actual conflict of interest adversely
affected trial counsel's performance under the second prong of the
Cuvler test. Nothing in the record suggests that Morris' method of
cross-examination or his defense strategy was in any way motivated
by a desire to protect his own personal interests at the
defendant's expense. In addition, Morris' defense strategy at
trial was to show that the defendant had invited Robert Peterson to
stay with him at his residence while Peterson was experiencing
marital difficulties, and that the defendant was unaware of the
fact that Peterson had brought the drugs and related paraphernalia
into the residence. Peterson's own testimony supported that claim.
The State offered two witnesses, Detective Jacobs, who participated
in the arrest of the defendant and the search of his residence, and
8
Judith Hoffmann, a forensic scientist at the Montana State Criminal
Laboratory, who examined and analyzed evidence seized from the
defendant's residence. Much of their testimony concerned the drugs
and related paraphernalia which was found and the locations within
the residence in which they were found, all of which was damaging
to the defendant. In light of the State's evidence, trial
counsel's decision not to conduct extensive cross-examination was
a tactical decision within his discretion. Extensive cross-
examination would have run the risk of eliciting cumulative or
additional damaging testimony, further harming the defendant's
case. Given trial counsel's defense strategy, we see no reason why
Peterson's source of methamphetamine was critical to the
defendant's case in any way, and the defendant has failed to
demonstrate otherwise.
We conclude that trial counsel's performance was not adversely
affected by an actual conflict of interest and, thus, the defendant
was not denied effective assistance of counsel under the standard
set forth by the United States Supreme Court in Cuyler.
I1
Was the defendant denied effective assistance of counsel as a
result of trial counsel's stipulation to the admission of the
videotape of the crime scene into evidence?
The defendant maintains that he received ineffective
assistance of counsel in that trial counsel failed to vigorously
and competently oppose the admission of the videotape into
9
evidence. In evaluating general claims of ineffective assistance
of counsel, this Court utilizes the two-pronged test set forth in
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674. First, counsel's performance must be deficient. To
assess deficient performance, this Court employs the "'reasonably
effective assistance' test of whether a defendant's counsel acted
within the range of competence demanded of attorneys in criminal
cases. [Citation omitted.]'' State v. Elliott (1986), 221 Mont.
174, 178, 717 P.2d 572, 575. Second, counsel's deficient
performance must have so prejudiced the defendant as to deprive the
defendant of a fair trial. State v. Leavens (1986), 222 Mont. 473,
475, 723 P.2d 236, 237. The standard for evaluating prejudice is
whether a reasonable probability exists that but for counsel's
deficient performance, the trial's outcome would have been
different. Leavens, 222 Mont. at 475, 723 P.2d at 237.
In this case, the testimony of Detective Jacobs was used as
foundation for the admission of the videotape into evidence. The
defendant claims that the videotape was inadmissible because its
"authenticity or correctness'' was not established in that Detective
Jacobs' statement that the videotape was made during the search of
the premises is false. He states that "[tlhe tape itself clearly
establishes that the videotaping was not of the search in progress
but rather a documentation of the search results after the initial
discovery of what was purported to be evidence of crime." The
defendant contends that the videotape does not show the condition
of the premises before the search began and that it does not
10
accurately depict the circumstances of the search because it does
not actually show the search in progress. The defendant argues
that the prejudice he suffered is evident by the fact that the jury
requested and was allowed to view the videotape during
deliberations.
Under Rule 901(a), M.R.Evid., the requirement of authentica-
tion or identification is satisfied “by evidence sufficient to
support a finding that the matter in question is what its proponent
claims.” In addition, the trial court judge has wide discretion in
determining the adequacy of foundation for the admission of
evidence. City of Missoula v. Forest (1989), 236 Mont. 129, 134,
769 P.2d 699, 702.
The record reflects that the videotape at issue shows the
defendant’s residence in Missoula. More specifically, the bedrooms
occupied by the defendant and Robert Peterson are shown at length;
in addition, items of personal identification, dangerous drugs,
drug paraphernalia, money, and weapons are displayed, some after
they were moved by officers and others both before and after they
were moved. However, the defendant’s argument that the videotape’s
authenticity could not be established overlooks Detective Jacobs’
testimony as to how and when the videotape was made. Detective
Jacobs testified that the videotape shows him searching the
defendant’s bedroom; the videotape also shows items in the other
bedroom because other officers in the search had the video camera
operator move at various times to the other bedroom and tape items
that they had found while Detective Jacobs continued his search.
11
To be authentic, the videotape in this case did not have to be
filmed in a certain way or at a certain time. Neither the State
nor Detective Jacobs asserted that the videotape showed the search
in a step-by-step manner but rather asserted that the videotape
documented items found in the residence. Given the purpose for
which it was offered, the videotape was properly authenticated. In
addition, the defendant's concern that the videotape did not fully
show the premises prior to, during, and after the search goes to
the weight of the evidence, which is in the exclusive province of
the jury, and not to its admissibility. See State v. Armstrong
(1980), 189 Mont. 407, 616 P.2d 341; State v. Laverdure (1990), 241
Mont. 135, 785 P.2d 718.
We also disagree with the defendant's assertion that the
videotape was unduly prejudicial and, therefore, should have not
been admitted into evidence. Because the videotape was shown to
the jury without sound there was no verbal testimony by any person,
only a view of the items later introduced at trial as evidence of
the crimes charged. Thus, any possible prejudicial effect of the
videotape was minimal. The videotape was probative to the issues
involved in the case in that it served to corroborate and
illustrate Detective Jacobs' testimony. The videotape was properly
admitted into evidence.
Not only has the defendant failed to show that trial counsel's
performance was deficient, he has also failed to show that but for
the admission of the videotape into evidence a reasonable
probability exists that the outcome of the trial would have been
different. There was substantial evidence, including the items of
evidence and their locations in the residence as established by
testimony at trial, of the defendant's possession of dangerous
drugs and related paraphernalia. We hold that the defendant was
not denied effective assistance of counsel as a result of trial
counsel's stipulation to the admission of the videotape into
evidence.
I11
Did the District Court err by allowing the jury to review the
videotape during deliberations?
The defendant asserts that he was prejudiced by the District
Court allowing the videotape to be viewed by the jury during its
deliberations. He argues that the videotape was unreliable and
contained prejudicial information which was emphasized by the
jury's opportunity to view the videotape again. In addition,
citing People v. Montoya (Colo. App. 1989), 773 P.2d 623, the
defendant contends that the videotape was testimonial in nature and
argues that the jury was allowed to give undue weight to this
testimonial evidf-
wce.
Section 46- 16- 504, MCA (1989), in effect at the time of the
defendant's trial, states:
Upon retiring for deliberation, the jury may take with
them all papers which have been received as evidence in
the cause, except depositions or copies of such papers as
ought not, in the opinion of the court, to be taken from
the person having them in his possession. The iurv mav
also take with them any exhibits which the court may deem
proper and notes of the proceedings taken by themselves.
[Emphasis added. 3
In State v. Morse (1987), 229 Mont. 222, 233, 7 4 6 P.2d 108, 115, we
13
found no error in allowing the jury to take audio tapes into the
jury room, stating that "[jlust as with papers which have been
properly admitted into evidence that are allowed in the jury room
during deliberations, the tapes were evidence which at the
discretion of the court could be allowed." Here, we have already
concluded that the videotape was properly admitted into evidence.
Having been properly admitted, the videotape was evidence which, at
the discretion of the court, could be viewed by the jury during
deliberations.
We also note that Montova, cited by the defendant, is not
applicable to the present case. Montova involved a videotaped
statement to police given by a witness to a robbery. Analogizing
the videotaped statement to a deposition, the Colorado Court of
Appeals held that the trial court committed prejudicial error in
allowing the jurors unrestricted, unsupervised access to the
videotape during their deliberations, stating:
[Blecause jurors may give undue weight to the testimony
contained within a deposition which they take with them
and may not accord adequate consideration to
controverting testimony received from live witnesses, it
is the universal rule that depositions may not be
reviewed by a jury on an unsupervised basis. [Citations
omitted. 3
...
For these reasons, we conclude that a trial court
may allow jurors to review a videotape of a witness'
previous statements, which has been admitted for
substantive purposes, only under circumstances that will
assure that such statements are not given "undue weight
or emphasis." [Citation omitted.]
Montova, 773 P.2d at 625-26. In the present case, the videotape of
the crime scene documenting the evidence seized was played to the
14
jury without a sound track. A s such, the videotape is analogous to
a photograph or series of photographs. It is not akin to
deposition testimony or other testimonial evidence which carries
with it those dangers recited by the court in Montova. We conclude
that the District Court did not abuse its discretion when it
allowed the jury to review the videotape during deliberations.
Af f inned.
We concur: /
15
November 19, 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Edward G. Beaudette
KNIGHT, DAHOOD, McLEAN & EVERETT
P.O. Box 727
Anaconda, MT 59711
Hon. Marc Racicot, Attorney General
Barbara Harris, Asst. Atty. Gen.
Justice Building
Helena, MT 59620
Robert L. Deschamps, I11
Missoula County Attorney
200 West Broadway
Missoula, MT 59802
ED SMITH
CLERK OF THE SUPREME COURT