State v. Woods

96-162

No. 96-162

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

STATE OF MONTANA,

Plaintiff and Respondent,

v.

JEREMY CORD WOODS,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

J. Mayo Ashley, Helena, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant
Attorney
General, Helena, Montana; Mike McGrath, Lewis and Clark County
Attorney, Helena, Montana

Submitted on Briefs: April 17, 1997

Decided: June 26, 1997
Filed:

__________________________________________

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Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

Following a jury trial in the First Judicial District Court, Lewis and Clark
County,
defendant Jeremy Cord Woods (Woods) was found guilty of two counts of deliberate
homicide, and was subsequently sentenced to two consecutive life terms at the Montana
State Prison. Woods appeals.
We affirm.
Woods presents two issues for our review, restated as follows:
1. Did the District Court err in denying Woods's pretrial motion to
suppress
evidence of his confession?
2. Did the District Court err in allowing Woods to proceed at trial pro se?
BACKGROUND
In July, 1994, Woods was an inmate at the Swan River Correctional Training
Center (Swan River) in Montana. Swan River is commonly referred to as the "boot
camp" because its training methods and overall atmosphere are based on military
concepts
of strict regimen and discipline. Participation in the Swan River program is
voluntary,
and participants, or "trainees," come from the Montana State Prison after completing
a
screening process, or are sent directly by the sentencing court.
The 120-day training program at Swan River involves a number of different
steps,
and a trainee's successful completion of the program is based on his behavior and
willingness to proceed through each of the steps. If a judge so orders, a trainee
who
successfully completes the Swan River program may be released from incarceration, or
may have his sentence reduced. Conversely, a trainee whose performance is
unsatisfactory may be moved back a level within the program, may be transferred to
the
Lake County, Montana jail for a "time out," or may be sent back to the Montana State
Prison.
Trainees are oriented to the Swan River program on two different occasions:
once
before they depart from the Montana State Prison, and again upon their arrival at
Swan
River. At both orientations, the trainees are informed that "100 percent
disclosure" is
expected of them, and that no confidentiality attaches to their disclosures. The
theory
behind the disclosure requirement is, in the words of Swan River Superintendent Dan
Maloughney, "that if you are going to change your life, you cannot be hiding
anything.
And if you feel that there is something bothering you and prohibiting you from
continuing
on to make this change in your life, then we feel that should be taken out."
According
to Maloughney, unwillingness to comply with the disclosure requirement can under

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certain circumstances rise to the level of unsatisfactory performance.
Consequently, a
trainee unwilling to comply can be moved back a level within the program, sent to the
Lake County jail for a "time out," or returned to the Montana State Prison.
When Woods arrived at Swan River, he received the standard orientation and
also
talked with Superintendent Maloughney. In his discussion with Maloughney, Woods
acknowledged that his successful completion of the program was dependent upon his
performance. Woods indicated to Maloughney that he wanted to participate.
On July 24, 1994, Woods participated, along with a number of other trainees,
in
an anger management group session led by Swan River trustee Brien Mercer. Mercer
was incarcerated at the facility but was acting as support staff with the counseling
department. At some point during the course of the session, Woods indicated that he
wanted to talk about a problem he was having. Mercer later testified that Woods
began
"expressing himself in a negative light," and one of the group members asked him,
"What did you do, snuff somebody?" Woods responded that he had. When Mercer
asked Woods if he, Mercer, should go on to someone else, Woods said no, he wanted
to deal with his problem now. Woods then revealed that he had killed a woman and a
child, but soon became very emotional and refused to say anything more.
Woods requested to leave the room, but Mercer refused out of concern for
Woods's emotional well-being. Mercer was also concerned about his supervisor's
response were he to allow Woods to leave the counseling session alone. Instead of
allowing Woods to leave the room alone, Mercer ordered the other trainees to a place
called "hard stand," where they normally went after leaving the group session room.
Woods remained in the room with Mercer for about 20 or 30 minutes.
After Woods indicated that he wanted to speak with some staff persons, Mercer
contacted Superintendent Maloughney. Maloughney informed Woods that he was not
required to say anything more, but that Maloughney would make no promises if Woods
did speak. Maloughney also informed Woods that he would face consequences if he
admitted to criminal activity. Maloughney did not advise Woods of his Miranda
rights.
Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
Woods prepared a written statement which he gave to Maloughney on the same
day, July 24, 1994. In the statement, Woods confessed to killing his girlfriend and
his
girlfriend's son. Woods explained in his statement that approximately one year
earlier,
he strangled Dawn Wallace with a power cord, hanged Wallace's son Jayme from the
side of his crib with a stereo cable, then later placed both bodies in a 55-gallon
drum that
he dumped in a deserted area near the Helena airport. On July 25, 1994, Lewis and
Clark County authorities received by fax from Swan River Woods's map of the location
of the barrel. The authorities found the barrel and the human remains inside. The
same
day, July 25, 1994, Woods was charged by information filed in the Lewis and Clark
County District Court with two counts of deliberate homicide.
After writing out his statement at Swan River, Woods requested that he be
allowed
to speak to the other trainees in his platoon about the murders. Woods's request was
granted.

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Woods was later transferred to the Montana State Prison, and he discussed the
murders with various persons there. In particular, Woods discussed the murders with
Terry Wilkinson, a hearings officer at the prison. Woods instigated the discussion,
as,
after Wilkinson introduced himself, Woods responded "I am the one who committed the
double homicide," and proceeded to give Wilkinson detailed information about the
murders. Woods also freely discussed the murders on a number of occasions with a
physician's assistant at the prison.
On October 12, 1994, Woods filed with the District Court a motion to suppress
any confessions or admissions he made while at Swan River. After a hearing held on
November 30, 1994, the court denied Woods's motion, concluding that his confessions
were entirely voluntary and were not taken in violation of his constitutional rights.
Prior to trial, Woods wrote a letter to the District Court requesting that his
attorney be dismissed and that another attorney be substituted in her place. The
court
denied Woods's request for new counsel.
Trial commenced on October 1, 1995. Following voir dire, and outside the
presence of the jury, Woods informed the court that he wanted to terminate
representation
by his now two attorneys. The court conducted an inquiry, then denied Woods's
request.
Woods insisted that he would not go forward with the case while represented by his
present counsel. The court refused to postpone the trial, and Woods stated that he
would
represent himself. The court requested that Woods's attorneys remain on the case as
standby counsel. Following a two day jury trial, Woods was found guilty of two
counts
of deliberate homicide. Woods appeals.
ISSUE ONE
Did the District Court err in denying Woods's pretrial motion to suppress
evidence
of his confession?
We review a district court's denial of a motion to suppress to determine
whether
the court's findings of fact are clearly erroneous and whether those findings were
correctly applied as a matter of law. State v. New (1996), 276 Mont. 529, 533, 917
P.2d 919, 921. The District Court here denied Woods's motion to suppress evidence of
his Swan River confession based upon its determinations that Woods's statements were
voluntarily made, and that Woods was not the subject of a custodial interrogation
when
he confessed to the double homicide. Woods argues on appeal that the court erred
because his statements were compelled, and because he was the subject of a custodial
interrogation, or, in the alternative, was faced with "the classic penalty
situation," State
v. Fuller (1996), 276 Mont. 155, 162, 915 P.2d 809, 813, cert. denied, 117 S.Ct. 301
(1996), because he could have been returned to the Montana State Prison if he did not
comply with the disclosure rule at Swan River. Thus, there are three sub-issues
here:
whether Woods's statements were voluntarily made; whether Woods was the subject of
a custodial interrogation; and, whether Woods was faced with "the classic penalty
situation." We shall address each of these sub-issues in turn.
A defendant may move to suppress evidence of his confession on the ground that

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it was involuntary. Section 46-13-301, MCA. The State has the burden of proving by
a preponderance of the evidence that a defendant's statements of confession or
admission
were voluntary, not compelled. Section 46-13-301(2), MCA. The State contends that
it met its burden in this case. We agree.
The relevant facts here fully support the State's contention and the court's
determination that "Woods' [sic] statements were the 'product of a rational
intellect and
free will,' and were wholly voluntary within the meaning of the Due Process Clause of
the Fifth Amendment." Woods voluntarily chose to participate in the Swan River
program, and, in accordance with standard procedure at Swan River, was informed of
what was expected of him as a Swan River trainee prior to his departure from Montana
State Prison and upon his arrival at Swan River. Woods, like all prospective
trainees,
was informed that full disclosure was a requirement at Swan River, and that no
confidentiality would attach to any disclosures of past criminal activity. In
addition,
Woods spoke directly with Superintendent Maloughney upon his arrival at Swan River
and at that time indicated his desire to participate in the program. Furthermore,
Woods
had the option of terminating his participation in Swan River if he did not or could
not
meet its requirements.
At the anger management group session on July 24, 1994, Woods stated that he
needed to speak about something that was bothering him. Woods had tried to speak at
an earlier session, but was not afforded time to do so. After Woods disclosed in
general
terms that he had killed two persons, Trustee Mercer, and then Superintendent
Maloughney, spent time with Woods inquiring as to whether he wished to continue with
his confession. Woods assured them that he wanted to continue. Finally, in the
written
confession that Woods gave to Maloughney, Woods wrote:
I make this statement of my own free will without threat, promise, or
duress. I am not under the influence of alcohol or drugs.

Prior to his statements of confession, Woods was never interrogated about his past
criminal activity, nor did the Swan River staff suspect that Woods was involved in
the
homicides. The evidence overwhelmingly supports the court's determination that
Woods's statements were voluntary. The court correctly concluded not to suppress
evidence of Woods's confession pursuant to 46-13-301, MCA.
Woods also argues that evidence of his confession should have been suppressed
on
the grounds that it was the result of a custodial interrogation, and he was not
informed
of his Fifth Amendment right against self-incrimination prior to making his
confession.
As a general rule, the Fifth Amendment privilege must be asserted or it is waived.
Fuller, 915 P.2d at 812. There are, however, exceptions to this general rule, where
the
failure to assert the privilege is excused. A person subjected to a custodial
interrogation

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must be informed that he has the right to remain silent, that any statements he
makes may
be used against him, and that he has the right to an attorney, either retained or
appointed.
Miranda, 384 U.S. at 479. Under these circumstances, only if a defendant fails to
assert
the Fifth Amendment privilege after being informed of his right to assert it may his
statements be used against him.
For the Miranda protections to apply, the defendant must be subject to a
custodial
interrogation, which the United States Supreme Court has described as "questioning
initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.
S.
at 444. Similarly, this Court has stated that a custodial interrogation arises
where the
circumstances "are such that a reasonable person being interrogated would feel he was
in custody or otherwise significantly deprived of his freedom." State v. Osteen
(1985),
216 Mont. 258, 264, 700 P.2d 188, 193, overruled on other grounds by State v. Loh
(1996), 275 Mont. 460, 473, 914 P.2d 592, 600. A custodial setting can be identified
where "inherently compelling pressures ... work to undermine the individual's will to
resist and to compel him to speak where he would not otherwise do so freely."
Miranda,
384 U.S. at 467. Finally, whether a person is in custody for purposes of Miranda is
a
factual question which is dependent upon the particular circumstances of the case.
California v. Beheler (1983), 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d
1275, 1279.
Here, the District Court, while acknowledging that Woods was incarcerated at
Swan River at the time he made his confession, concluded that he was not "in custody"
for Miranda purposes. The court reached this conclusion after considering the
particular
circumstances surrounding Woods's confession at the July 24, 1994 group session. The
court noted that Woods, after disclosing to the other trainees that he had killed two
persons, was confined to the group therapy room "for safety reasons rather than for
interrogation." The court also noted while Woods was confined to the group therapy
room, his requests to speak with "church people" and with Superintendent Maloughney
were granted. The court found that:
[Trustee] Mercer's decision to keep Woods in the therapy room was not for
the purpose of coercing Woods into making further statements, but rather
as a safety precaution and to allow time for Woods to calm down and
decide what he wanted to do. Woods was still free to decide for himself
whether he wished to discuss the matter further with staff.

The court's findings are supported by the testimony produced at trial, and its
reasoning is in accordance with case law which we find persuasive. In State v.
Warner
(Wash. 1995), 889 P.2d 479, the Washington Supreme Court addressed a factual
situation
similar to that here, where a defendant made incriminating statements during group
sex

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offender therapy sessions while confined at a juvenile correctional facility. The
Washington Court concluded that the group therapy sessions did not constitute a
custodial
setting:
Assuming arguendo this was an interrogation, it must be "custodial" in
order to fit within the Miranda exception. When dealing with a person
already incarcerated, "custodial" means more than just the normal
restrictions on freedom incident to incarceration. There must be more than
the usual restraint to depart. [Citations omitted.] In State v. Sargent
[(Wash.
1988), 762 P.2d 1127] there was a custodial interrogation where the
questioning by the probation officer took place in a booth in the King
County Jail's visiting area and the defendant was locked in his side of the
booth. In [State v.] Post, [(Wash. 1992), 826 P.2d 172] on the other hand,
this court rejected the argument that an interview by a Department of
Corrections psychologist was custodial where the interviewee was on work
release, even though "Post was 'required' to submit to his evaluation in the
sense that it was widely known that if individuals did not cooperate during
the interview process, it was a factor considered against them." [Citation
omitted.] We held that psychological compulsion is not enough to establish
"custody" for Miranda purposes. [Citation omitted.] The circumstances
surrounding Mr. Warner's disclosures cannot be considered "custodial" in
the sense used in the relevant cases.

Warner, 889 P.2d at 483. Similarly, in State v. King (Wash. App. Div. 1 1995), 897
P.2d 380, 387, aff'd, 925 P.2d 606, the Washington Court of Appeals applied the
Warner
rationale and held that "King was not 'in custody' for Miranda purposes [when he
confessed to other crimes while participating in a sexual offender program] because
no
restraints were placed upon him beyond those incident to the ordinary incarceration
to
which he was already subject." We hold that the District Court correctly concluded
that
Woods, although technically incarcerated, was nevertheless not "in custody" within
the
meaning of Miranda when he made his confession.
The District Court also determined that Woods's confession was not the result
of
an "interrogation" within the meaning of Miranda, which requires some degree of
compulsion. The court in United States v. Morales (2d Cir. 1987), 834 F.2d 35,
explained:
Only questioning that reflects a measure of compulsion above and beyond
that inherent in the custody itself constitutes interrogation the fruits of
which may be received into evidence only after Miranda warnings have
been given. The questions asked must have been both likely to elicit an
incriminating response and to produce psychological pressures that will
subject the individual to the "will" of his examiner.

Morales, 834 F.2d at 38 (citations omitted). The District Court here found that
Woods's
initial incriminating statements were voluntarily made in the presence of his fellow

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trainees and trustee Mercer, and that it was the trainees' non-accusatory questions
that
prompted Woods to give a more detailed account of what happened. The court also
found that Woods was not subjected to an interrogation subsequent to his initial
disclosure:
Next, Woods spent approximately half an hour in the room with
Brian Mercer. There was no evidence at the hearing to indicate what
Woods might have said during that half hour. Mercer testified that he
talked with Woods until he felt comfortable enough to speak with other
people. However, there was no indication that Mercer interrogated Woods
during that time period.
When Dan Maloughney came into the room to speak with Woods,
Maloughney asked Woods what he needed. When Woods told him that he
wanted to come clean with his past, Maloughney asked him if he was sure
he wanted to do that. When Woods answered affirmatively, Maloughney
simply asked him to make a written statement of what Woods wanted to
say. Maloughney did not conduct extensive questioning of Woods to gain
information about the crimes, nor did he use coercion or undue pressure to
elicit incriminating information from Woods. Woods volunteered his
statement without any compelling influence from Maloughney. The Court
finds that this conversation did not constitute an interrogation.
Likewise, the statement made to the boot camp platoon several days
later was volunteered by Woods. There was no evidence that he was
coerced to stand up in front of his platoon and confess to the homicides.
Woods asked to be allowed to make that statement.

The evidence shows that Woods, aware that no confidentiality would attach to
any
disclosures at Swan River, voluntarily confessed at the group session that he had
killed
two persons. In addition, the only questions asked of Woods at that time were posed
by
his fellow inmates, not police officers. There is no indication that those
questions were
probing or compelling. Moreover, there is no indication that Mercer, during his time
alone with Woods following the group session disclosure, or, later, Superintendent
Maloughney, in any way compelled Woods to confess. To the contrary, the evidence
shows that Mercer and Maloughney asked Woods general questions about Woods's desire
to continue speaking, or advised Woods of the consequences of a confession to
criminal
activity. We hold that Woods was not "interrogated" within the meaning of Miranda.
Because Woods was neither "in custody" nor "interrogated," no Miranda protections
attached to his confession at Swan River.
However, as his third argument Woods contends that his confession was
protected
by the Fifth Amendment because, at the time of his disclosures at Swan River, he was
facing the "classic penalty situation." The United States Supreme Court in
Minnesota v.
Murphy (1984), 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409, explained:
There is ... a substantial basis in our cases for concluding that if the
state,
either expressly or by implication, asserts that invocation of the privilege

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[against self-incrimination] would lead to revocation of probation [or some
other type of punishment] it would have created the classic penalty
situation, the failure to assert the privilege would be excused, and the
probationer's answers would be deemed compelled and inadmissible in a
criminal prosecution.

Murphy, 465 U.S. at 435.
This Court addressed a "classic penalty situation" in Fuller. In that case,
we held
that Fifth Amendment protections applied to Fuller's disclosures of past criminal
activity
because Fuller was required to make such admissions in order to maintain his place in
a sexual offender treatment program and thereby avoid prison. Fuller, 915 P.2d at
814,
816. Woods contends that, like Fuller, he was subjected to a "classic penalty
situation"
because his confession was compelled by the threat of a return to prison if he did
not
comply with Swan River's "100 % disclosure" rule.
The State contends, however, that we need not reach the merits of this
argument
because Woods raises it for the first time on appeal. We agree.
The record establishes that Woods's arguments below were that his confession
was
not voluntary, and that his confession was the result of a custodial interrogation
and he
was therefore entitled to Miranda protections. Woods did not argue below that his
confession was the result of a "classic penalty situation." While Fuller was
decided after
the District Court issued its order denying Woods's motion to suppress, other
"classic
penalty situation" cases have long been in existence. See, e.g., Lefkowitz v. Turley
(1973), 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274; Lefkowitz v. Cunningham (1977),
431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1; Murphy (1984), 465 U.S. 420. Thus,
Woods could have raised this argument below, but did not.
Errors alleged for the first time on appeal must be disregarded. See 46-
20-
104(2) and -701(2), MCA. In addition, a defendant may not alter or expand his
argument
on direct appeal. State v. Greywater (Mont. 1997), ___ P.2d ___, ___, 54 St. Rep.
16,
19. Because Woods did not raise the "classic penalty situation" argument below, he
has
waived that argument for purposes of appeal.
We conclude that the District Court did not err in denying Woods's pretrial
motion
to suppress. The court's findings were not clearly erroneous. Moreover, the court
correctly applied its findings as a matter of law. The evidence supports the court's
determinations that Woods's statements were voluntarily made, and were not made as a
result of a custodial interrogation. Finally, because Woods did not argue below
that he
was subject to a "classic penalty situation," he waived that argument for purposes

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of his
appeal.
ISSUE TWO
Did the District Court err in allowing Woods to proceed at trial pro se?
Pursuant to the Sixth Amendment to the United States Constitution and Article
II,
Section 24 of the Montana Constitution, a criminal defendant in Montana has the right
to the assistance of counsel. A Montana criminal defendant also has the
constitutional
right to proceed at trial pro se. State v. Colt (1992), 255 Mont. 399, 403, 843
P.2d 747,
749. A defendant may waive the right to counsel if the district court determines
that the
waiver is made knowingly, voluntarily, and intelligently. Section 46-8-102, MCA; see
also Faretta v. California (1975), 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d
562, 581. This Court has also stated that a defendant's request to proceed pro se
must
be unequivocal. State v. Langford (1994), 267 Mont. 95, 99, 882 P.2d 490, 492, cert.
denied, 115 S.Ct. 1128 (1995).
Woods contends that the District Court did not adequately advise him of the
dangers and disadvantages of proceeding without counsel, citing United States v. Keen
(9th Cir. 1996), 96 F.3d 425. In Keen, the court stated that three elements must be
met
in order to establish that a defendant's waiver of counsel was knowing and
intelligent: the
defendant's awareness of (1) the nature of the charges against him; (2) the possible
penalties; and, (3) the dangers and disadvantages of self-representation. Keen, 96
F.3d
at 427-28. Woods interprets Keen as prescribing the particular way in which a trial
court
must inquire into a defendant's waiver. Woods contends that the District Court here
did
not strictly abide by the Keen prescription. However, Woods's interpretation is
flawed,
as Keen does not require a court to employ a structured, formulaic approach when
conducting its inquiry. Indeed, the Keen court stated:
Other circuits have prescribed a meticulous litany to be employed by the
district court when it is faced with a prospective pro se defendant.
Although such a methodology may have its advantages, we have never
demanded an ironclad approach to this situation. It is not our intention to
craft such an approach here. However, we do generally require that the
defendant be made aware of the "three elements" of self-representation:
"[I]t must be established that the defendant was 'aware of the nature of the
charges against him, the possible penalties, and the dangers and
disadvantages of self-representation.'" The government bears the burden
of showing that Keen's waiver of counsel was knowing and intelligent.
Furthermore, "[t]hroughout this inquiry, we must focus on what the
defendant understood, rather than on what the court said or understood."

Keen, 96 F.3d at 427-28 (citations omitted) (emphasis added).
In Colt, this Court rejected an argument similar to the one posed by Woods
here,

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that the district court should adhere to a strict inquiry when deciding whether to
allow
self-representation:
This Court does not require district courts to adhere to a rigid set of
requirements in ascertaining whether a defendant in a criminal proceeding
has made a knowing and intelligent waiver of his right to counsel. District
judges are in the best position to determine whether the defendant has made
a knowing and intelligent waiver of his right to counsel.... Requiring the
district courts to specifically discuss the dangers and disadvantages of pro
se representation is far beyond the scope of what Faretta or our case law
requires. Faretta requires that the accused "be made aware of the dangers
and disadvantages of self-representation...."

Colt, 843 P.2d at 751. We noted that "establishment of generic criteria by which the
District Court would by rote discuss certain specific dangers and disadvantages of
self-
representation will do little to protect the rights of the accused." Colt, 843 P.2d
at 752.
We stated that we would defer to the district court's judgment regarding a
defendant's
waiver of counsel:
[I]t is the district judges who are in the best position to determine the
extent, context, and degree of inquiry necessary to determine whether the
individual before them has made a voluntary, knowing, and intelligent
waiver of the right to counsel. So long as substantial credible [evidence]
exists to support the decision of the District Court that the defendant made
a voluntary, knowing, and intelligent waiver, it will not be disturbed on
appeal.

Colt, 843 P.2d at 752 (citing State v. Plouffe (1982), 198 Mont. 379, 646 P.2d 533).
The State contends, and we agree, that there is substantial evidence in the record
showing
that Woods made a voluntary, knowing, and intelligent waiver of his right to counsel.
After the jury was impaneled and before trial began, the parties discussed
several
pretrial matters in the judge's chambers. At that time, Woods stated that he wanted
to
terminate representation by his attorneys:
THE DEFENDANT: Your honor, may I speak please? At this
point, I would like to voice--I wrote that letter to you about the
communication between my attorneys and I. At this point, I would like to,
you know, voice my objection at this point.

THE COURT: To what?

THE DEFENDANT: To the fact that Randi Hood and Jim Obie are
representing me at this point. It is my wish to terminate their
representation of me at this point.

The court then informed Woods that he had the right to represent himself, but advised
against it:
THE COURT: You do have the right to represent yourself but you

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would be crazy to do it in this case.

....

I understand your concerns and I understand that you think that you're
not
getting good representation. But you are getting good representation. So
far I've
seen absolutely no indication that your attorneys have done anything that doesn't
measure up to high professional standards.

The exchange continued:

THE COURT: I think the problem here is that, and it is
understandable, you're not an attorney. You don't understand the lawyers'
strategy. You have to trust your lawyers, to a certain extent, that they
know how to best proceed in your defense.

THE DEFENDANT: But I don't trust them. I don't trust them. Not
since the suppression hearing.

THE COURT: Well --

THE DEFENDANT: What was said in that suppression hearing was
a farce.

THE COURT: Well, your request is denied at this point. And if you
want to -- if you want to challenge their competency as your attorneys,
you're welcome to do that.

THE DEFENDANT: I'm not challenging them for competency, I'm
saying they won't represent me in this case. If that means I must stand in
that courtroom alone, then so be it. But they will not represent me in this
case.

THE COURT: Well, you can continue to represent yourself. I'm not
going to postpone this trial. We're going to trial today.

THE DEFENDANT: Then we go to trial today. But I will not --
then the --then -- but the defense counsel will not be representing me as --

THE COURT: I think you're crazy. Jeremy, look at me. You have
a constitutional right to represent yourself. But these attorneys are a heck
of a lot better at it than you are. And if you represent yourself, you are
going to hang yourself in that trial.

THE DEFENDANT: I'm already hung, ma'm.

THE COURT: You decide whether you want to represent yourself
or not. We're going to trial in 5 minutes.

Finally:

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THE COURT: Jeremy, I know more about the law than you do.

THE DEFENDANT: Yes, ma'm.

THE COURT: I know more about the criminal process than you do.

THE DEFENDANT: Yes, ma'm.

THE COURT: And I'm telling you that these attorneys have done a
very, very good job with you so far. You may not think so, but I'm telling
you that is true.

THE DEFENDANT: Why -- what happened at boot camp didn't
come out.

THE COURT: Sometimes -- well, I'm just telling you right now that
what I know about this case, and I've -- and I'm pretty familiar with what
has been going on in this case, and these attorneys have done an excellent
job with you and you have got to put your trust in them.

THE DEFENDANT: That is just it. You didn't know what
happened at the boot camp.

THE COURT: Well, now is not the time to tell me.

THE DEFENDANT: No, it ain't. It was over and done with last
year. They had the chance to do it then.

THE COURT: Well, I am going to give you five minutes to think
about this and then we've got to get the trial started.

THE DEFENDANT: I've already said my peace [sic]. There is
nothing I can do.

THE COURT: Okay. Let's go.

MS. HOOD: You are representing yourself?

THE DEFENDANT: I just said you won't represent me. There will
be no defense representation in this case.

THE COURT: Okay. That is up to you. But Randi and Jim, I
would like you to be standby attorneys.

The preceding exchange shows that the court attentively and thoroughly
inquired
into Woods's desire to waive his right to counsel. It also shows that Woods
repeatedly
and steadfastly maintained his desire to terminate his attorneys' representation and
proceed to trial on his own, even in the face of the court's advice to the contrary.
Woods's reasoning behind his decision, his dissatisfaction with his attorneys, was

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clearly
stated. Moreover, Woods's questions and responses indicate a rational intellect.
Finally,
there is no indication that Woods was in any way compelled or pressured to waive his
right to counsel. We conclude that Woods voluntarily, knowingly, and intelligently
waived his right to counsel.
We also conclude, for many of the same reasons, that Woods's desire to proceed
pro se was unequivocal. In Langford, we explained the rationale behind the
requirement
that the request be unequivocal:
It prevents a defendant from taking advantage of the mutual exclusivity of
the rights to counsel and self-representation. A defendant who vacillates at
trial between wishing to be represented by counsel and wishing to represent
himself could place the trial court in a difficult position: If the court
appoints counsel, the defendant could, on appeal, rely on his intermittent
requests for self-representation in arguing that he had been denied the right
to represent himself; if the court permits self-representation the defendant
could claim he had been denied the right to counsel. [citation omitted.] The
requirement of unequivocality resolves this dilemma by forcing the
defendant to make an explicit choice. If he equivocates, he is presumed to
have requested the assistance of counsel.

Langford, 882 P.2d at 493 (citing Adams v. Carroll (9th Cir. 1989), 875 F.2d 1441,
1444). In that case, the record established a pattern in which Langford threatened
to fire
his appointed counsel, only to request a few days later that he be retained. It was
not
until the pre-trial hearing that Langford requested that he be allowed to proceed
pro se.
Langford's request was as follows:
Well, I'm aware of the statute ... where it says you can let me make a
waiver of counsel if I make a ... knowing and a competent and intelligent
decision. Well, clearly I know what I'm doing, I'm waiving my right to
counsel. As far as competent, I think that's covered under do I know what
I'm doing, and it could be argued whether it was an intelligent decision or
not, I'm sure. But as far as I'm concerned, my butt is the one that's on the
line.

Langford, 882 P.2d at 493. We held that, although "[s]tanding alone, Langford's
request
appears to be unequivocal ... [t]aken as a whole, the record clearly reflects the
fact that
Langford's request to represent himself was equivocal." Langford, 882 P.2d at 493,
494.
Here, however, the record shows that Woods never vacillated in expressing his desire
to
continue at trial on his own, even after repeatedly being advised against such a
course of
action by the court. We hold that Woods's request to proceed pro se was unequivocal.
Woods also argues that his clearly stated dissatisfaction with his attorneys
required
the court to conduct a further inquiry into the competence of his attorneys, citing

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State
v. Morrison (1993), 257 Mont. 282, 285, 848 P.2d 514, 516. Woods's argument lacks
merit.
Woods's complaint focused on his attorneys' handling of the suppression
hearing.
Judge McCarter, who heard Woods's complaint, presided over the suppression hearing
as well. As the foregoing transcript excerpts indicate, Judge McCarter had observed
the
performance of Woods's attorneys throughout the case, particularly at the suppression
hearing. There was no need here for Judge McCarter to conduct a further inquiry into
the competence of Woods's attorneys.
CONCLUSION
As to Issue One, Woods's confession and related statements made at Swan River
were voluntarily made, and were not the result of a custodial interrogation. Woods
did
not properly preserve, and therefore waived, his argument on appeal that the
statements
were the result of a "classic penalty situation." The statements were not protected
by the
Fifth Amendment, and we therefore conclude that the court correctly denied Woods's
suppression motion.
With respect to Issue Two, there is substantial, credible evidence to
establish that
Woods voluntarily, knowingly, and intelligently waived his right to counsel.
Similarly,
there is evidence which establishes that Woods unequivocally indicated his desire to
proceed pro se. Therefore, we conclude that the court did not err in allowing Woods
to
proceed pro se.
Affirmed.
/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART

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