State v. Kaske

No. 00-865

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 106

STATE OF MONTANA,

Plaintiff and Respondent,

v.

ARTHUR PAUL KASKE,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Kristina Guest, Appellate Defender Office, Helena, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; Jim Wheelis,
Assistant Attorney General, Helena, Montana

Fred Van Valkenberg, Missoula County Attorney, Missoula, Montana

Karen S. Townsend, Deputy County Attorney, Missoula, Montana

Submitted on Briefs: January 10, 2002

Decided: May 21, 2002
Filed:

__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.

¶1 The State of Montana charged Arthur Paul Kaske with criminal

possession of dangerous drugs. A jury subsequently convicted Kaske

of possession, but Kaske failed to appear at the sentencing

hearing. The Fourth Judicial District Court, Missoula County,

later granted a motion for a new trial and the State filed an

Amended Information, adding a charge of bail jumping. Before the

new trial, the District Court denied a request by Kaske to replace

his lawyer. A jury found Kaske guilty of both possession and bail

jumping. Kaske appeals the court’s denial of his request for a new

lawyer and the conviction of bail jumping. We affirm.

¶2 The following issues are dispositive of this appeal:

¶3 1. Did the State present sufficient evidence to prove that

Kaske had been set at liberty by a court order upon the condition

that he subsequently appear at a specific time?

¶4 2. Did the District Court err in not appointing Kaske

substitute counsel?

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 BACKGROUND

¶5 On February 3, 1994, the State of Montana charged Kaske by

Information with Felony Criminal Possession of Dangerous Drugs. A

public defender, J. Dirk Beccarri, was assigned as Kaske’s counsel.

On April 19, 1994, Kaske appeared before the District Court and

complained that Beccarri’s representation dissatisfied him. The

court ordered that Beccarri withdraw as counsel, and the public

defender’s office appointed William Boggs as Kaske’s new counsel.

A jury convicted Kaske on September 29, 1995. The District Court

set sentencing for November 7, 1995.
¶6 On October 24, 1995, Boggs filed a motion for a new trial.

After Kaske did not appear for the sentencing hearing on November

7, the court issued a bench warrant. On February 8, 1996, the

court granted Boggs’ motion for a new trial and set a status

conference for August 13, 1996. Kaske failed to appear at either

that status conference or the following one on February 4, 1997.

¶7 Authorities apparently arrested Kaske in New York on March 16,

1999, and extradited him to Montana. On December 21, 1999, the

State filed an Amended Information, which added a charge of bail

jumping. At the next hearing, on December 28, 1999, Kaske objected

to Boggs' representation, stating that Boggs was neither making the

proper effort on his behalf nor discussing certain details of the

case with him. In addition, the State noted that it might call

Boggs as a witness on the bail jumping charge. On these bases, the

District Court relieved Boggs as Kaske’s counsel and directed that

another public defender be appointed to Kaske.

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¶8 On January 4, 2000, the court continued Kaske’s arraignment

until January 18, 2000, because Kaske’s new public defender,

Margaret Borg, had not yet received Kaske’s file from Boggs. A

deputy public defender appeared at the January 18 hearing to

explain that Borg still had not received Kaske’s file. At that

hearing, Kaske expressed concerns regarding Borg’s representation.

Kaske complained that Borg would not discuss certain topics that

he thought were important and would not allow him to file documents

without her permission. He also stated that Borg’s “social agenda”

and “anti-drug campaign” were interfering with her ability to

defend him.
¶9 On February 1, 2000, Kaske again appeared in court, this time

with Borg. He pled not guilty to the bail jumping charge and the

court set an omnibus hearing for February 22, 2000. At the omnibus

hearing, Kaske reiterated his displeasure with Borg’s

representation and asked the court to replace her with another

public defender. Kaske complained that Borg was not pursuing

exculpatory evidence, that he had not been supplied with

depositions and that the Information was based on hearsay. He also

complained that he could not afford to make copies of legal

documents at the county jail, which interfered with his ability to

work on a discovery motion he was developing. Kaske informed the

court that he was also working on a motion to be co-counsel in his

own defense.

¶10 Judge Henson told Kaske that he could either continue with his

present counsel or have the court dismiss her and continue pro se.

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 Kaske expressed his wish to have the court replace Borg. Judge

Henson responded that he would make an initial inquiry into the

matter. He then directed Kaske to file his complaint against Borg

with the court and noted that Borg would have a chance to respond.

¶11 On March 21, 2000, the court held a hearing regarding Kaske's

complaint against Borg. At the time of the hearing, however, Kaske

had not yet filed his complaint. He first explained that he did

not realize he needed to make copies of his complaint. Later he

complained that the detention facility would not allow him to make

copies. Judge Henson told Kaske that he would still have to file a

copy with the court if he wished to proceed with his claim of

ineffective assistance of counsel. After the hearing, Kaske filed

his complaint against Borg with the court.
¶12 During the same hearing, Kaske also asked to submit a petition

for habeas corpus, but Judge Henson declined to accept it so long

as Borg continued to represent him. Kaske then requested that he

be provided with depositions supporting the Amended Information.

The court responded that no depositions existed. It noted,

however, that there was an affidavit that supported the motion to

file the Amended Information.

¶13 Next, Kaske complained that his former counsel, Boggs, had

made an extended effort to deny him access to documents. He also

stated that Borg would not disclose exculpatory evidence to him.

Borg responded that she did not believe that the evidence Kaske was

asking for existed. Kaske repeated, however, that “there’s

exculpatory evidence out there that needs to be addressed.”

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¶14 At the court’s request, the prosecutor explained that his

office had a statutory and professional duty to disclose evidence

to the defense. Therefore, the defense always had access to the

State’s evidence, including all exculpatory evidence. Kaske

nevertheless insisted that the “District Attorney is trying to deny

the Defense exculpatory evidence for the sake of developing a

defense.”

¶15 The court ordered complete and continuing discovery of all

exculpatory evidence, but Kaske questioned whether he was “going to

be denied that exculpatory evidence, because my counsel will not

give me any documents.” After further discussions, Borg explained

that it was early in the process and more information was likely to

come forward. Furthermore, she noted that part of her difficulty

with Kaske’s requests stemmed from their disagreements on what was

relevant, pertinent or appropriate.
¶16 After a discussion with the court about whether there was

going to be a separate trial, Kaske stated that he had “some

pretrial motions that I would like to file sometime in the future

pertaining to specific exculpatory defense.” The court again noted

that, so long as Borg represented Kaske, it would only accept

motions that Borg filed. Kaske responded that, although he was

unwilling to waive his right to counsel, he did not want Borg to

represent him. Borg agreed to provide Kaske with any documents

that existed but noted that “I cannot give him copies of something

that he imagines or would like.” Kaske maintained that the

documents existed and that Borg had not given him “one iota of

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documentation.”

¶17 On April 11, 2000, the court held another hearing regarding

Kaske’s complaints against Borg, and Borg filed her response to

Kaske’s complaints with the court. At the hearing, the court

explained that Montana law required it to conduct an initial

inquiry, to consider the specific complaints along with counsel’s

explanations and then to reach a conclusion. Kaske then told the

court that he had a petition for habeas corpus he wished to file,

along with a Section 1983 civil action. He also asked for a

continuance “until I get a response from the Court” and noted that

“if things haven’t come to a certain conclusion within the next 30

days, I would seriously consider waiving my right to counsel and go

ahead and proceed pro se.”
¶18 On April 27, 2000, the court ruled on Kaske’s motion. It held

that Borg’s representation had been adequate and denied Kaske’s

motion for a new attorney. The court wrote that Kaske could choose

to continue with Borg, hire outside counsel or proceed pro se.

¶19 At the next hearing, on May 9, 2000, Kaske chose to proceed

pro se. He explained that, while he did not wish to waive his

right to counsel, he would not allow Borg to represent him “as long

as she’s going to maintain the attitude that she has in the past.”

Kaske also noted that he was preparing a complaint for the

Commission on Practice, had filed a petition for a writ of habeas

corpus with this Court and had filed a Section 1983 civil action in

federal court. He then asked for a “legal advisor,” which the

court declined to provide. Kaske disagreed with the court’s

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interpretation of the situation and said he would prefer that Judge

Henson disqualify himself because of his bias, which he would also

explain to the Commission on Practice. After proceeding with the

omnibus hearing and setting forth a briefing schedule, the court

again warned Kaske of the perils of proceeding pro se.

¶20 On May 16, 2000, Kaske repeated his desire to continue without

Borg as his lawyer. The court then appointed Borg as stand-by

counsel. Borg turned over the file to Kaske during a hearing on

May 30, 2000, at which time the court also directed the clerk to

provide Kaske a copy of the entire court file.
¶21 The court conducted a trial on August 2-3, 2000. A jury

convicted Kaske on both counts. On September 27, 2000, Kaske filed

a pro se Notice of Appeal. Kaske subsequently filed a motion with

this Court requesting counsel and an extension of time. On January

30, 2001, we granted Kaske’s request and appointed the Montana

Appellate Defender Office to represent Kaske on this appeal.

ISSUE ONE

¶22 Did the State present sufficient evidence to prove that Kaske

had been set at liberty by a court order upon the condition that he

subsequently appear at a specific time?

¶23 A person commits bail-jumping “if, having been set at liberty

by court order, with or without security, upon condition that he

will subsequently appear at a specified time and place, he

purposely fails without lawful excuse to appear at that time and

place.” Section 45-7-308, MCA (1995). Kaske maintains that the

State provided no evidence that Kaske was set at liberty by a court

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order, the first element of the offense of bail jumping. He

further contends that the State did not present evidence that the

court had placed any conditions of release specifying that Kaske

appear at a specific time and place.

¶24 When reviewing the sufficiency of evidence presented to

support a jury verdict, we must view the evidence in the light most

favorable to the prosecution and determine whether a rational trier

of fact could have found the essential elements of the crime beyond

a reasonable doubt. See State v. Merrick, 2000 MT 124, ¶ 7, 299

Mont. 472, ¶ 7, 2 P.3d 242, ¶ 7. During trial, the State called

Loretta Amos, a clerk of the District Court, to testify regarding

the bail-jumping charge. Amos was responsible for keeping the

minutes of the District Court’s September 29, 1995, hearing.

During direct examination, the following exchange took place:
Question: And were you the deputy clerk of court on
[September 29, 1995] for Judge Henson?
Answer: Yes, I was.
Question: And on that particular day, was Mr. Kaske
present in a court proceeding?
Answer: Yes, he was.
Question: And do the minutes reflect whether or not he
was told to appear at another time and date
about six weeks in the future?
Answer: Yes, he was.
Question: Would you tell us, please, what the minutes
reflect of what time and date he was supposed
to come back to court.
th
Answer: On November 7 of that – of 1995 at 9 a.m.
Question: Okay. And that particular direction was given
by His Honor, Judge Henson, and Mr. Kaske was
present at that time?
Answer: Yes, ma’am.

¶25 A single witness’ testimony is sufficient to prove a

fact, and the State may use circumstantial evidence to prove any

element of an offense. See Merrick, ¶ 13. “[T]he weight and

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credibility of witnesses are exclusively the province of the trier

of fact.” Merrick, ¶ 13. Amos testified that the court ordered

Kaske to appear in court on November 7, 1995. Therefore, contrary

to Kaske’s assertions, the State provided adequate evidence for the

jury to conclude that the court directed Kaske to appear in court

at a specific time and place.

¶26 Kaske maintains, however, that the court’s order must

have included a written statement setting forth any restrictions or

conditions upon the defendant’s release. He bases this assertion

on § 46-9-110, MCA (1994), which requires that release orders must

include a written statement. To obtain a conviction under a

criminal statute, however, the State only needs to prove the

elements of the offense as defined by the statute. See State v.

Heffner, 1998 MT 181, ¶ 26, 290 Mont. 114, ¶ 26, 964 P.2d 736, ¶

26. The bail-jumping statute does not mention a release order. It

simply states that, to commit bail-jumping, a person must have

“been set at liberty by court order.” Section 45-7-308, MCA

(1995). Furthermore, we have previously concluded that a party’s

failure to appear for an oral amendment to a notice to appear was

sufficient to constitute bail-jumping. See State v. Snaric (1993),

262 Mont. 62, 67-68, 862 P.2d 1175, 1178-79.
¶27 The State presented evidence that the court ordered Kaske to

appear before it on November 7, 1995. Kaske failed to do so.

Thus, Kaske failed to appear despite a court order. Therefore, we

conclude that the State presented sufficient evidence to prove

every element of the offense of bail-jumping.

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 ISSUE TWO

¶28 Did the District Court err in not appointing Kaske substitute

counsel?

¶29 The Sixth Amendment to the United States Constitution and

Article II, Section 24 of the Montana Constitution guarantee

indigent defendants effective assistance of counsel. See State v.

Gallagher (Gallagher I), 1998 MT 70, ¶ 14, 288 Mont. 180, ¶ 14, 955

P.2d 1371, ¶ 14. If the relationship between a defendant and

lawyer completely collapses, a court’s refusal to substitute new

counsel violates a defendant’s right to effective assistance of

counsel. See State v. Gallagher (Gallagher II), 2001 MT 39, ¶ 9,

304 Mont. 215, ¶ 9, 19 P.3d 817, ¶ 9. When a criminal defendant

alleges that his counsel is providing ineffective assistance, a

district court then “must make an adequate initial inquiry into the

nature of those complaints and determine if they are seemingly

substantial.” Gallagher I, ¶ 15. Should the court conclude that

the defendant presented a seemingly substantial complaint, the

court must next hold a hearing to address the validity of those

complaints. See Gallagher I, ¶ 15.
¶30 Kaske does not dispute that the court conducted an adequate

initial inquiry. Instead, he argues that the court erred in

concluding that he did not set forth seemingly substantial

complaints concerning Borg’s effectiveness. In order for the court

to replace a defense attorney, the defendant bears the burden of

presenting material facts that established a total lack of

communication or ineffective assistance of counsel. See Wilson v.

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State, 1999 MT 271, ¶ 19, 296 Mont. 465, ¶ 19, 989 P.2d 813, ¶ 19.

Bare, unsupported allegations are insufficient to justify a

district court appointing new counsel. Wilson, ¶ 19. Furthermore,

a defendant’s request for new counsel is within the sound

discretion of the district court. See Gallagher I, ¶ 10.

Therefore, we will only overturn a district court’s decision if it

abused its discretion. See Gallagher I, ¶ 10.

¶31 In his motion to the District Court, Kaske wrote that he had

only met with Borg once and that she would not communicate with

him. He went on to describe his understanding of the proceedings,

his frustrations with delays and his inability to communicate with

Borg. Kaske wrote that he felt Borg was “pushing her own agenda to

satisfy the shortcomings of the district attorney’s case. This is

malicious prosecution by the district attorney and supported by the

extreme bias of Ms. Borg towards the client. This is a direct

violation of the clients Fifth/Sixth Constitutional Amendment

Rights.”
¶32 Although Kaske raised multiple complaints, none of these

indicated a complete breakdown in communication. Kaske

acknowledged that, at their one meeting, he and Borg “discussed the

. . . extradition issue(s) along with many other issues for about 1

hour.” Borg explained that she was waiting to receive Kaske’s file

and the New York information before she had another detailed

conversation with him about the case. Also, Borg claimed that she

or someone from her office spoke to Kaske at each of the various

court hearings. Although Kaske made several blanket allegations

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that Borg would not speak with him, Borg maintained in her response

that a complete cessation of communications occurred only once

Kaske asked the court to replace Borg.

¶33 While a defendant has the right to counsel, this right does

not include a right to a particular attorney or a right to a

particular defense. See Gallagher II, ¶ 16. Borg likely was not

as available as Kaske wished. He and Borg also clearly had a

difference in opinion on how to proceed with his case. It is a

time-honored rule, however, that “[c]ourts must accord great

deference to defense counsel’s exercise of judgment in determining

appropriate defenses and trial strategy.” Gallagher II, ¶ 16.
¶34 Furthermore, Kaske’s complaints did not appear in the vacuum

of his motion. A court may rely on its own observations during

trial regarding communications between counsel and defendant when

determining whether it should grant a pretrial motion for a

substitution of counsel. See Gallagher II, ¶ 12. Here, the court

conducted several hearings where Kaske expressed his displeasure

with Borg’s representation. These hearings allowed the court

numerous opportunities to observe the quality of communication

between Kaske and Borg.

¶35 Borg was also Kaske’s third defense attorney in this matter.

In each case, Kaske expressed displeasure with counsel’s

representation. In the first two instances, the court replaced

Kaske’s lawyer. The third time, the court denied Kaske’s request,

noting that it would “not continue to allow him additional spins of

the roulette wheel of representation.”

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¶36 The court had ample evidence that Kaske and Borg carried on

communications, albeit strained. While Kaske and Borg clearly had

a difficult relationship, the court also had sufficient evidence to

conclude that the difficulties occurred because of Kaske’s

behavior. We will not require the court to continue replacing

Kaske’s counsel until he finds one that he likes. For these

reasons, it was within the District Court’s discretion to conclude

that Kaske had not raised a seemingly substantial complaint against

Borg. We thus conclude that the court did not err in refusing to

appoint substitute counsel.
¶37 Affirmed.

/S/ JIM REGNIER

We Concur:

/S/ KARLA M. GRAY
/S/ TERRY N. TRIEWEILER
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE

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