96-310
No. 96-310
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Respondent,
v.
RONALD EDWARD BORCHERT,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jennifer Wendt Bordy, Bozeman, Montana; Suzanne C.
Smith, Marshall & Smith, Bozeman, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, John Paulson,
Assistant Attorney General; Mike Salvagni, Gallatin
County Attorney, Marty Lambert, Deputy Gallatin
County Attorney, Bozeman, Montana
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Submitted on Briefs: January 9, 1997
Decided: March 6, 1997
Filed:
__________________________________________
Clerk
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
Appellant Ronald Edward Borchert (Borchert) was convicted of
two counts of robbery following a jury trial in the Eighteenth
Judicial District Court, Gallatin County. Borchert appeals.
We reverse and remand for a new trial.
The following issues are dispositive:
1. Did the District Court abuse its discretion in denying
Borchert's motion to continue?
2. Was Borchert denied effective assistance of counsel when
his co-defendant confessed on the date set for trial, creating a
conflict of interest because his counsel previously represented the
co-defendant when he maintained his innocence?
BACKGROUND
On July 16, 1993, within a period of one hour, two robberies
were committed at two motels in Bozeman, Montana. Both robberies
were committed by the same two men, in much the same manner: as one
robber, wearing a blue handkerchief wrapped around his face and
brandishing a pellet gun, guarded the entrance to the lobby of the
motel, the other robber, wearing a rubber Halloween mask, a red and
black flannel shirt, and brandishing a large-caliber revolver,
approached the clerk on duty and demanded money. At one of the
motels, the Western Heritage Inn, the robber wearing the Halloween
mask and flannel shirt left a muddy shoe print on the service
counter when he climbed over it to reach the clerk and the money in
the motel till.
Bozeman police did not apprehend the robbers on July 16, 1993.
However, subsequent investigation led to the arrests of Borchert
and Michael Paul Bakeberg (Bakeberg). The investigation generally
involved the following events and revealed the following
information:
On August 5, 1993, Borchert was arrested in Belgrade, Montana
for DUI. The arresting officer noticed a rubber mask on the
passenger-side floorboard of Borchert's car. The officer seized
the mask and impounded the car. When shown the mask later, the
motel clerks identified it (mistakenly, as subsequent events would
establish) as the one worn during the robberies. During police
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questioning, Borchert denied any involvement in the robberies and
claimed that he found the mask in a dumpster. Police later
searched Borchert's residence without finding any incriminating
evidence.
Soon after the police searched Borchert's residence,
Borchert's older brother called Bakeberg to warn him that the
police would likely come talk to him. Bakeberg had the mask and
flannel shirt worn during the robberies in his possession; he took
them to a brushy area near the Bozeman dump and hid them there.
The next day, Bakeberg walked from his home to the Bozeman
police station to speak with the detectives investigating the
robberies. While interviewing Bakeberg, Detective Mark LaChapelle
noticed that Bakeberg was wearing Converse Allstars gym shoes with
a tread design similar to the shoe print which had been left on the
counter top at the Western Heritage Inn. Detective LaChapelle took
the shoes and sent them to the state crime lab in Missoula and
later to the FBI crime lab.
On October 30, 1993, two Montana State University students
discovered among the rocks surrounding Hyalite reservoir near
Bozeman a Smith & Wesson .357 caliber pistol with distinctive
sights and grips. The students brought the gun to the sheriff's
office in Bozeman. Later, the pistol was identified by the motel
clerks as one of the guns used in the robberies. The pistol was
also identified by Chris Rager (Rager) as one of three guns stolen
from his home some two weeks prior to the motel robberies. One of
the persons involved in the burglary of Rager's home was Borchert's
younger brother Donny. In addition, in the course of an
investigation into an unrelated crime, police learned from Tim
Craig, the father of a friend of Borchert's and Bakeberg's, that
he, Craig, had received from Borchert and another man two of the
guns stolen from Rager's home, the .357 and a .44 magnum pistol.
Borchert had initially given the .357 to Craig as collateral for a
loan, but later, despite not having repaid the loan, had pleaded
with Craig for its return. Craig returned the pistol to Borchert
on October 23, 1993, the day after Bozeman police visited with
Craig.
Borchert was eventually charged with two counts of robbery on
May 17, 1995. Suzanne Smith was appointed to represent Borchert.
Bakeberg was charged as a co-defendant in June, 1995. Bakeberg, a
juvenile at the time of the offenses, was represented at an October
2, 1995 detention hearing by Ms. Smith, who soon withdrew.
Thereafter, Bakeberg was represented by Karl Seel, while Ms. Smith
maintained her representation of Borchert. Trial was set for
November 13, 1995.
On the morning of the trial, the State moved for a continuance
on the grounds that it was unsure whether two of its witnesses,
Craig and his son Shawn (both of whom, since the robbery
investigation, had moved to Bend, Oregon) would make it to Bozeman.
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The Gallatin County Attorney's office had arranged their travel
plans and possessed the correct itineraries, but because of a
misunderstanding of the Craigs' travel plans believed that they had
missed a crucial connecting flight early on the morning of the
first day of trial, when they were scheduled to testify. The
county attorney asserted that the Craigs were material witnesses
and therefore an important part of the State's case. In addition,
there was some concern that because of some legal issues unrelated
to the instant case, the Craigs would not show up in Bozeman at
all. Over Borchert's objection, the court granted the State's
motion for continuance.
The State appeared before the court at 1:30 p.m., later the
same day, and informed the court that the Craigs had indeed arrived
in Bozeman. The court recalled the jury to begin trial the next
day.
Meanwhile, also on November 13, 1995, in the morning,
Bakeberg's attorney approached the Gallatin County Attorney about
the possibility of a plea agreement in exchange for Bakeberg's
testimony and cooperation. An agreement was reached around 4:00
p.m., and shortly thereafter Bakeberg led authorities to the brushy
area near the Bozeman dump where he had hidden the mask and flannel
shirt worn in the robberies. These items were recovered sometime
between 4:00 p.m. and 6:00 p.m.
The State did not inform Borchert's attorney that Bakeberg had
requested a plea agreement; that an agreement was in fact reached,
pursuant to which Bakeberg would testify against Borchert; and,
that Bakeberg had produced for authorities the mask and flannel
shirt worn during the robberies. However, Borchert's attorney did
eventually learn of this turn of events, by sheer coincidence:
Borchert's attorney dined the night of November 13, 1995, at the
same restaurant as Bakeberg's attorney.
The next morning, Borchert moved to continue the trial. The
court denied the motion. After the trial, the jury found Borchert
guilty of two counts of robbery. Borchert appeals.
ISSUE 1
Did the District Court abuse its discretion in denying
Borchert's motion to continue?
A ruling on a motion to continue is subject to the district
court's discretion. State v. Sotelo (1984), 209 Mont. 86, 90, 679
P.2d 779, 782; 46-13-202(3), MCA. We review discretionary
district court rulings to determine whether the court abused its
discretion. State v. Sullivan (1994), 266 Mont. 313, 324, 880 P.2d
829, 836.
Section 46-13-202, MCA, governs motions for a continuance.
The statute states:
Motion for continuance. (1) The defendant or the
prosecutor may move for a continuance. If the motion is
made more than 30 days after arraignment or at any time
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after trial has begun, the court may require that it be
supported by affidavit.
(2) The court may upon the motion of either party or
upon the court's own motion order a continuance if the
interests of justice so require.
(3) All motions for continuance are addressed to the
discretion of the trial court and must be considered in
the light of the diligence shown on the part of the
movant. This section must be construed to the end that
criminal cases are tried with due diligence consonant
with the rights of the defendant and the prosecution to
a speedy trial.
In addressing Borchert's motion to continue, the court was to
consider "the interests of justice" and "the diligence shown by the
movant." Borchert argues that he clearly met these two elements,
and that the court therefore abused its discretion in denying his
motion to continue. We agree.
Borchert specifies several bases for his contention that the
interests of justice required that his motion to continue be
granted. First, Borchert explains that his defense had centered on
his and Bakeberg's maintenance of innocence. This defense,
Borchert argues, was reasonably relied upon. Up until the point at
which the plea agreement was reached, Bakeberg maintained that
neither he nor Borchert was involved in the robberies. There was
no one, other than Bakeberg, who could positively place Borchert at
the scenes of the robberies. Moreover, up until the point at which
the plea agreement was reached, the State had the wrong mask in its
possession. Further, Borchert contends that much of the evidence
prior to November 13, 1995, pointed to Bakeberg and possibly Tim
Craig's son Shawn as the likely culprits, but not Borchert. To
this end, Borchert explains that the shoes which matched the shoe
print on the counter in the Western Heritage Inn were taken from
Bakeberg, not Borchert, and that Shawn Craig, whose testimony was
generally inconsistent, provided the only explanation for where the
.357 was ultimately found; Shawn explained that he accompanied
Borchert on the night of October 23, 1993, to Hyalite reservoir,
where he saw Borchert throw the pistol toward the water. Borchert
argues, and we agree, that Bakeberg's last minute confession
eviscerated Borchert's planned defense strategy: Bakeberg placed
Borchert at the scenes of the robberies, described Borchert as
wearing the mask and flannel shirt and brandishing the .357 during
the robberies, divulged to the police the location of the mask and
the flannel shirt, and explained that on the night of the robberies
he allowed Borchert to wear his Converse Allstars gym shoes.
Furthermore, Borchert contends that there was not enough time,
between the point at which his attorney fortuitously learned of
Bakeberg's plea agreement and the beginning of trial, in which to
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construct a new defense strategy to replace the one which took "60
hours" to construct and only a few hours to destroy. The
difficulty in creating a reasonable defense in just a few hours,
under these circumstances, on the eve of trial, is apparent. In
any event, Borchert's contention here is supported by this Court's
decision in Sotelo, where we concluded that the district court
abused its discretion in denying a motion to continue filed by an
attorney who had been appointed counsel one month before trial.
Sotelo, 679 P.2d at 782. We determined that the attorney's motion
should properly have been granted, because the attorney could not
reasonably have constructed a sufficient defense in the time
available to him. Sotelo, 679 P.2d at 781-82. Just as we
considered the particular circumstances in reaching our decision in
Sotelo, we conclude here that Borchert's attorney could not
possibly have constructed, or more precisely, reconstructed, a
sufficient defense, and, in that respect, provided effective
assistance of counsel, under the circumstances of this case. The
relationship between the importance of effective assistance of
counsel, the court's affirmative duty to foster that degree of
assistance, and the propriety of granting a defendant's motion to
continue, is clearly stated in this Court's previous decisions.
See, e.g., State v. Lundblade (1984), 213 Mont. 420, 424, 691 P.2d
831, 833 (court abused discretion in denying continuance, where
appointed counsel had no time in which to prepare a defense,
resulting in violation of defendant's right to a fair trial and
effective assistance of counsel); State v. Fife (1980), 187 Mont.
65, 70-71, 608 P.2d 1069, 1072-73 ("close question" regarding
motion to continue should be resolved in favor of defendant in
order to ensure fair trial); State v. Blakeslee (1957), 131 Mont.
47, 54-55, 306 P.2d 1103, 1107 (court has an affirmative duty "to
make the appointment of counsel effective, i.e., to give court-
appointed counsel a reasonable time for the preparation of his case
after he has been appointed").
Finally, Borchert points out that the State actually concurred
in the motion to continue. During argument before the court
regarding the motion to continue, the then-Deputy County Attorney
stated:
If the grounds [for the motion] are that [Borchert's]
strategy now has changed, based on what Mr. Bakeberg did
yesterday and the physical evidence that he led us to
about 6:00 p.m. last night, I don't object to that.
The State's concurrence both in the motion and Borchert's grounds
therefor lends considerable support to Borchert's argument that his
motion to continue should, in the interests of justice, have been
granted, while at the same time relieves us of considering the
issue of potential inconvenience to the State were the motion
granted. We conclude that the interests of justice required that
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Borchert's motion to continue be granted.
Borchert also provides support for his contention that his
attorney exercised due diligence. Borchert's attorney informed the
court that she spent 60 hours preparing for trial. She also
explained that she represented Bakeberg at his detention hearing
(she later withdrew) and at that time Bakeberg indicated he was not
a participant in the robberies; that she interviewed Bakeberg some
six weeks prior to trial, at which time he continued to deny any
involvement; and, that she confirmed with Bakeberg's attorney one
more time before trial that Bakeberg's testimony would comport with
his consistent claim of innocence. Borchert's attorney did all
that she could to "cover all the bases" in preparation for trial;
the State's claim to the contrary is without merit. Borchert's
attorney could not reasonably have expected nor been prepared for
what she inadvertently discovered while out to dinner the night
before trial. In this regard we note that the State has an
obligation to promptly disclose to defense counsel the existence of
additional information or material, 46-15-327, MCA, but there is
no indication in the record that the State made any effort to
notify Borchert's attorney of Bakeberg's change of heart. In State
v. Timblin (1992), 254 Mont. 48, 834 P.2d 927, where the State
failed to disclose to the defense changes in a rape victim's
version of the crime, changes of which the defense was unaware
until the day of trial, we reversed the district court's denial of
Timblin's motion to continue, stating that "[i]n this instance, due
to the lack of notice of changed testimony, a continuance would
have been proper." Timblin, 834 P.2d at 928.
The circumstances of this case establish that Borchert's
request for a continuance was reasonable, that a continuance was in
the interests of justice, and that Borchert's attorney exercised
due diligence. As we stated in Sotelo:
If counsel is diligent yet has not been afforded
sufficient time to prepare a defense, the accused's
specific rights have been violated and his general right
to a fair trial has been denied.
....
[W]hen a continuance is requested, and that request is
reasonable given all the relevant factors including
defendant's right to a fair trial and effective
assistance of counsel, it constitutes abuse of discretion
for the court to refuse to grant the continuance.
Sotelo, 679 P.2d at 782. We hold that the District Court abused
its discretion in denying Borchert's motion to continue.
ISSUE 2
Was Borchert denied effective assistance of counsel when his
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co-defendant confessed on the date set for trial, creating a
conflict of interest because his counsel previously represented the
co-defendant when he maintained his innocence?
Borchert argues that he was denied effective assistance of
counsel because of a conflict of interest created by Bakeberg's
last minute confession. Borchert explains that because his counsel
previously represented Bakeberg at Bakeberg's detention hearing,
creating an attorney-client relationship with him, counsel was
later hindered in her cross-examination of Bakeberg at trial. The
State argues, however, that Borchert cannot meet the test for
ineffective assistance of counsel due to conflict of interest that
this Court adopted in State v. Christenson (1991), 250 Mont. 351,
355, 820 P.2d 1303, 1306.
We will not engage in a full analysis of the merits of these
arguments; our decision to reverse and remand for a new trial has
already been made, based on the District Court's error in denying
Borchert's motion to continue. Therefore, our resolution of this
issue is embodied in the following directive: at Borchert's
retrial, if Borchert waives, on the record, the alleged conflict of
interest, his present counsel may continue to represent him; if,
however, Borchert refuses to waive the conflict, and he and his
present counsel are unwilling to continue the representation, the
court must appoint new counsel for Borchert.
CONCLUSION
The District Court abused its discretion in denying Borchert's
motion to continue, and on that ground this matter is reversed and
remanded for a new trial. We note Borchert's claim of ineffective
assistance of counsel due to conflict of interest, and therefore
direct the District Court on remand as follows: if Borchert waives,
on the record, the alleged conflict of interest, his present
counsel may continue to represent him; if, however, Borchert
refuses to waive the conflict, and he and his present counsel are
unwilling to continue the representation, the court must appoint
new counsel for Borchert.
Reversed and remanded for a new trial.
/S/ WILLIAM E. HUNT, SR.
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
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