State v. Albrecht

No. 89-106

IN THE SUPREME COURT OF THE STATE OF MONTANA
1990

STATE OF MONTANA.
Plaintiff and Respondent

MICHAEL D . ALBRECHT ,
Defendant and Appellant.

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APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Custer,
The Honorable A. B. Martin, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
James G. Hunt, Hunt & Dix Law Offices, Helena,
Montana

For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Jennifer Anders, Assistant Attorney General, Helena
Keith D. Haker, County Attorney, Miles City, Montana

Submitted on Briefs: March 8, 1990
~ecided: April 26, 1990
Filed: *
Justice John Conway Harrison delivered the Opinion of the Court.

Defendant Michael Albrecht appeals his 1985 robbery conviction
from Custer County following revocation of his suspended sentence
in 1988 for parole violations. The defendant, who was returned to
prison after the suspended sentence was revoked, filed a petition
for post-conviction relief. Because a notice of appeal had been
timely filed but never docketed in 1985, the Attorney General's
answer to defendant's petition noted that defendant did not receive
proper representation on appeal. Counsel for defendant was then
appointed and a transcript of the 1985 lower court proceedings
prepared. Upon review of the 1985 proceedings we affirm the trial

court's judgment.
Defendant presents two issues for review:
1. Did the trial court commit reversible error when it
refused to instruct the jury that theft is a lesser-included
offense of robbery?
2. Was the defendant denied effective assistance of counsel
at trial?
On January 9, 1985, when Cheryl Zabrocki, a teller at First
Security Bank in Miles City, Montana, was approached by a man who
asked her to take out all of the money in her drawer and lay it on
the counter, she 'asked if he were kidding. The man assured Ms.
Zabrocki he was not kidding, and showed her a paper bag containing
a device that appeared to be a bomb, saying "You've got 30 seconds
to lay it out on the counter.'' As Ms. Zabrocki emptied the inside
portion of her cash drawer, the man said that he knew what he was
doing and that she should not forget to include the hundred- and
fifty-dollar bills. Ms. Zabrocki gave the man all of the money in
the front half of her drawer, totalling $4,926. She did not,
however, give the man the money in the back of the drawer which he
could not see. The robber then left the bank.
The bank personnel immediately notified local law enforcement
authorities of the robbery and gave a description of the bank
robber. Because a meter maid had earlier noticed a man matching
the robber's description acting suspiciously, the man was quickly
apprehended. When authorities surrounded his vehicle, the suspect,
later identified as Michael Albrecht, jumped out of his car and
stated "I did it, I did it, I have got the money.'' Law enforcement
officials recovered $4,926 in cash on defendant's person and a
brown paper sack containing what appeared to be an electronic
device in the defendant's car. The device proved to be a non-
functional conglomeration of emergency road flares, a flashlight
battery, a switch and some wires. Defendant was arrested without
incident.
At his January 18, 1985 arraignment, defendant requested
appointed counsel. Upon determining that the defendant was
indigent, District Court Judge A.B. Martin appointed J.S.
Wheatcroft to represent the defendant.
Attorney Wheatcroft informed Judge Martin in a March 11 letter
that defendant felt he might not be receiving adequate
representation. A hearing concerning the adequacy of trial
counselts representation was held on March 18. After inquiry and
discussion, the judge refused to appoint new counsel for the
defendant because the trial had already been scheduled and the jury
notified. Defendant was given the option of continuing with Mr.
Wheatcroftts representation or representing himself.
At trial, held on March 20, appointed counsel Wheatcroft
conducted the defense and the jury returned a verdict of guilty.
Defendant was subsequently sentenced to seven years in prison with
four years suspended. Originally, defendant received an additional
two-year sentence for use of a dangerous weapon, but that portion
of the sentence was later vacated. A notice of appeal was timely
filed but never docketed, and no further action taken on the
appeal.
In May of 1987 defendant was released from the Montana State
Prison to begin serving the suspended portion of his sentence.
Defendant was returned to prison following an August 22, 1988
hearing on the 'petition to revoke the suspended sentence.
Defendant filed a petition for post-conviction relief. The State's
response to that petition noted that defendant did not receive
proper representation on appeal in 1985. This Court then ordered
the matter remanded for preparation of a trial transcript and
appointment of appellate counsel. The result of our previous order
is this appeal.
 Defendant first argues that the trial court erred in refusing
to instruct the jury that theft is a lesser-included offense of
robbery. The trial court refused the instruction based on our
holding in State v. Madera (1983), 206 Mont. 140, 670 P.2d 552.
We affirm the trial court's decision.
Defendant was charged with robbery, a felony, under $j 45-5-
401(1) (b), MCA, which reads:
(1) A person commits the offense of robbery
if in the course of committing a theft he:

(b) threatens to inflict bodily injury upon
any person or purposely or knowingly puts any
person in fear of immediate bodily injury[.]
...
The definition of "included offensew is found at 46-11-
501(2), MCA, which reads, in part:
(2) An offense is an "included offense1'when:
(a) it is established by proof of the same or
less than all the facts required to establish
the commission of the offense charged [ . ] . . .
While this definition is found in the part of Title 46
concerning the effect of multiple charges and former prosecutions,
this Court has previously held that the definition is also
applicable in determining whether an instruction on a supposed
lesser-included offense is required. State v. Hamilton (1980), 185
Mont. 522, 534, 605 P.2d 1121, 1128, cert. denied, 447 U.S. 924,

The gist of defendant's argument is that the State must prove
a theft in order to prove robbery, and theft, therefore, is a
lesser-included offense of robbery. In Madera, we addressed this
argument adopting the ttBlockburger
test" to determine if theft is
a lesser-included offense of robbery. We noted:
The "Blockburger testtt(Blockburqer v. United States
(1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed.
306, 309) states:
"The applicable rule is that, where the same
act or transaction constitutes a violation of
two distinct statutory provisions, the test to
be applied to determine whether there are two
offenses or only one is whether each provision
requires proof of an additional fact which the
other does not ... . 11
However, in Iannelli v. United States (1975), 420
U.S. 770, 785, fn. 17, 95 S.Ct. 1284, 1294, fn. 17, 43
L.Ed. 2d 616, 627, fn. 17, the Supreme Court explained the
Blockburqer test saying:
"If each requires proof of a fact that the
other does not, the Blockburger test is
satisfied, notwithstanding a substantial
overlap in the proof offered to establish the
crimes .... 11

Our statute, section 46-11-502 (1), MCA, prevents
prosecution for more than one offense, when one offense
is included in the other.
In State v. Ritchson (1981), Mont., 630 P.2d 234,
38 St.Rep. 1015, we considered the Blockburqer rule, and
determined the applicable test is whether each charge
requires proof of a fact which the other does not, to
determine if there is indeed a lesser-included offense.
We look to the statutes and not to the facts of the
individual case to make that determination. Ritchson,
630 P.2d at 237, 38 St.Rep. at 1018.
Madera, at 151, 670 P.2d at 557-58. The Madera Court concluded
that because felony theft required the additional element of proof
that property taken exceeds a certain dollar amount, theft is not
a lesser-included offense of robbery.
 The decision in Madera was confirmed on appeal to the federal
court system. LaMere v. Risley (9th Cir. 1987), 827 F. 2d 622. The
LaMere court, in affirming the Montana Supreme Court and United
States District Court, distinguished the two crimes:
Robbery requires proof that a defendant threatened
or put another in fear of bodily harm; felony theft
requires no such showing. Felony theft, on the other
hand, requires the prosecution to prove that the
personaltyls.valueexceeds $150 [raised to $300 in 19831.
Mont.Code.Ann. § 45-6-301(1)(a)( 5 ) , (1983). A conviction
for robbery does not.
LaMere at 626.
But in the case at bar, defendant argues he requested the jury
be instructed that theft is a lesser-included offense because
evidence was contradictory as to whether Ms. Zabrocki was put in
fear during the incident. On direct examination, Ms. Zabrocki
testified she gave defendant the money because she believed that
if she did not give defendant the money she was in danger of bodily
harm because of the device in the sack. On cross-examination, Ms.
Zabrockils statement to police officers immediately following the
incident was brought out. In that statement Ms. Zabrocki described
defendant as 'Ireally nicev1when he first approached her and said
that she handed the money over to defendant because that was what
she was trained to do. Defendant contends that if the jury found
that defendant does not put anyone in fear of bodily harm he could
be convicted only of theft and not robbery, and an instruction that
theft was a lesser-included offense of robbery was therefore
proper.
We have, however, ruled that theft is not a lesser-included
offense of robbery, Madera, at 151, 670 P.2d at 558, albeit for
different reasoning. Nevertheless, we decline to hold differently.
Not only does theft require an additional element of proof
regarcling value, our statutes specify that commission of theft is
not required for commission of a robbery. Section 45-5-401, MCA,
requires only that the actor "be in the course of committing the
theft." Under the statute, in order for a robbery charge to
adhere, a person does not actually have to complete the theft but
only be in the course of committing the theft.
?'he Criminal Law Commission Comments to 5 45-5-401, MCA,
further illustrate that theft is not a lesser-included offense of
robbery :
Common-law robbery was theft of property from the
person or in the presence of the victim by force or by
putting him in fear either or immediate bodily injury or
of certain other grievous harms. The above draft does
not explicitly include the traditional basis for
classifying robbery as taking property from the person
or in the presence of a person, but approaches the crime
as one of immediate danger to the person and relies on
the condition of violence or threatened violence to
distinguish the crime from ordinary theft. The gist of
the offense is taking by force or threat of force.
The above provision would apply where property was
not taken from the person or from his presence. For
example, an offender might threaten to shoot the victim
in order to compel him to telephone directions for the
disposition of property located elsewhere. Further, it
is immaterial whether property is or is not obtained.
This seems compatible with the theory of treating robbery
as an offense against the person rather than against
property. Hence, a completed robbery may occur even
though the crime is interrupted before the accused
obtained the goods, or if the victim had no property to
hand over. ..
Criminal Law Commission Comments, Mont. Crim. Code, 1973 Annotated
(1980 Revised Edition), p. 184.
 It is clear from Montana statutes, commission comments and
case law that theft is not, and was never intended to be, a lesser-
included offense of robbery. We hold that the District Court was
correct in refusing defendant's request to instruct that theft is
a lesser-included offense of robbery.

Defendant nedt argues that he was denied effective assistance
of counsel at trial. The basis for his argument is that attorney
Wheatcroft failed to investigate a lack of mental state defense.
Defendant contends that trial counsel was well aware of certain
indications that defendant was unable to form either of the mental
states, purposely or knowingly, necessary to a robbery conviction.
The alleged indications of inability to form the requisite mental
state are that:

1) several years before this incident defendant had been
involved in a motorcycle crash which left him in a coma
for several weeks, causing at least some brain damage;
2) at the time of this incident, defendant was under
severe distress because he had been unemployed for two
months and could not support his family; and
3) at the time of the incident, defendant was in a
weakened state as a result of having slept in his
vehicle, without heat, for several nights in January and
not having eaten for at least two days due to a lack of
money.
Defendant argues that given these indications of his mental
condition, trial counsel had an obligation to pursue an
investigation into whether defendant had one of the requisite
mental states at the time of the incident. The trial record shows
that Wheatcroft was aware defendant had been unemployed for some
time and had slept in his car and had eaten very little for two
days prior to the incident. The record is inconclusive, however,
regarding Wheatcroft's knowledge of defendant's involvement in a
traffic accident. Wheatcroft's only reference to the accident
occurred after the trial at the sentencing hearing when he elicited
testimony from the defendant that defendant had suffered "severe
brain damage" as the result of an accident. There was no medical
evidence to confirm this testimony.
This Court follows the two-prong test adopted by the United
States Supreme Court to determine whether ineffective assistance
of counsel has occurred:
First, the defendant must show that counsel~sperformance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
llcounseln guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense.
State v. Stewart (1988), 235 Mont. 239, 241-42, 767 P.2d 296, 297
(quoting Strickland v. Washington (1984), 466 U.S. 668, 687, 104

Defendant contends attorney Wheatcroft's performance was
deficient because. he did not consider the lack of mental state
defense which prejudiced the defendant. It is clear that
Wheatcroft did consider the lack of mental state defense, but
rejected it as meritless. At the March 18, 1985 hearing on
substitution of counsel, Wheatcroft told the District Court:
Conferring with the client, or with the defendant, it
didn't appear that he'd be a real good candidate for an
insanity defense, and it was -- I interposed a defense
 of economic compulsion largely to keep alive -- to keep
the case alive while I was undergoing plea bargaining
efforts.
Such consideration on the defense attorney's part is
sufficient. In making a preliminary determination of competency
for the purpose of asserting a mental deficiency defense, the
attorney need only rely on his or her experience with the legal
profession. This Court refused to impose more of a duty on defense
attorneys evaluating a client's mental condition:
Defendant argues that trial counsel erred by failing
to require that defendant undergo physical and mental
examinations in preparing the defense and prior to
sentencing. This argument imposes an unacceptable burden
on defense attorneys by requiring them to exercise
diagnostic skills beyond their training. In this case
the record suggests nothing that would evidence that
defendant was suffering from mental disease or defect.
Trial counsel's performance was not deficient under these
circumstances.
State v. Long (1986), 223 Mont. 502, 511, 726 P.2d 1364, 1370.
In the case at bar, as in Lonq, nothing in the record suggests
defendant was suffering from mental disease or defect sufficient
to preclude his formation of the requisite mental state of
purposely knowingly. fact the record indicates just the
opposite. At the substitution of counsel hearing, defendant
appeared confident and articulate, stating that he wished to have
new counsel appointed because he found Wheatcroft, ''very
incompetent and immature and very erratic emotionally and him and
I definitely do not see eye to eye on this thing and he hasn't put
anything into it yet."
The trial court denied defendant's request for another
attorney. Before trial, Wheatcroft advised defendant to enter a
plea of guilty. Defendant, however, insisted the case go to trial
on the theory that the bomb was so patently phony that the teller
could not reasonably have been in fear. At trial defendant
informed the court that he would actually participate in his own
defense, instructed Wheatcroft to waive the opening statement, and
indicated he would be advising Wheatcroft throughout the
proceedings.
Defendant's behavior as reflected in the record indicates his
ability to form .the mental intent of purposely or knowingly.
Defendant obviously understood the charge against him. Defendant
was able to formulate his own theory of defense and demanded his
case be presented under that theory. Such assertiveness belies
defendant's contention that he was incapable of acting with the
purpose or knowledge necessary to a robbery conviction.
Furthermore, the record demonstrates that defendant acted
purposely or knowingly at the time of the robbery. At trial
defendant testified with detailed accuracy regarding places he had
stopped and inquired for work, the route he travelled, places he
stayed, and how much money he had at each point in his travels.
Defendant testified regarding his arrival back in Miles City and
events on the day of the incident:
Q. Okay. What did you do when you got here
in Miles City?
A. Well, in the Miles City area, I got -- it
wasn't in the morning. It would be the
afternoon of January 7th, but I arrived in
Miles City and it was in the late afternoon,
and I walked down Main Street and stopped into
a few of the stores and asked them if they
were looking for any type of help, and I
walked through the bars and I questioned all
the farmers I could find, and I asked the
bartenders if they had heard of anybody that
was looking for help.
Q. okay, and how long did this go on?
A. This happened while it was late in the
afternoon of the 7th, and that night I slept
in may car, about a block north of the SA
store here, and then the following morning I
was very cold, and I got up and it took me
quite awhile walking to get warmed up, and
then I had not eaten since it was Sunday, the
6th I guess it would be, and that was the last
time I had eaten and I was still getting
fairly cold, but I was walking around to warm
up and once again I proceeded to go into some
places and through the same bars and asked,
and nobody had heard yet of anything of a job
opening anywhere yet.
Q. Okay. Do you recall the events of January
9th of this year?
A. Well, the morning of January 9th. It was
-- I 'm not sure just what the time was, but at
eight o'clock I woke up and it was awful cold
that morning, and it took quite awhile walking
around and also trying to warm up and
different things, and I was also getting very
hungry, and I decided that somehow I would
have to come up with some money here or
something for food and lodging, and I had a
family at home yet too, that I didn't want
them evicted or kicked out.

Q. So what did you do?
A. Well, from the time I woke up, I walked
around to warm up, and it took me awhile, and
then I admit, it wasn't a very logical thing
to do, but I decided that I had to come up
with some money some way, but I wasn't sure
how I was going to do it yet, and -- well, I
devised the flares the way you seen them
arranged, and I didn't know what I was going
to do when I devised these flares, and I
walked around with them for an hour and a
half. .
Q. What did you do then?
 A. Well, after walking around?
Q. What did you do then?
A. After walking around and all of that, it
was about ten minutes before I went into the
bank and that's when I decided that I was
going to go into the bank.
Q. What happened in the bank?
A. Well, I just walked in the door and it was
11:13 and I walked up to the first lady and
asked her for all of the money.

Defendant's testimony demonstrates his ability to recall the
incident and the details surrounding it. Such recollection tends
to show the defendant was aware of his conduct and thus negates his
contention he lacked the mental state of purposely or knowingly.
State v. Raty (1984), 214 Mont. 114, 117, 692 P.2d 17, 19.
Moreover, the defendant's mental state may be inferred from
circumstantial evidence, including a defendant's actions and
evidence found surrounding the alleged offense. State v. Trask
(1988), 234 Mont. 380, 385, 764 P.2d 1264, 1267; State v. Hardy
(1980), 185 Mont. 130, 136-37, 604 P.2d 792, 796; State v. Jackson
(1979), 180 Mont. 195, 205, 589 P.2d 1009, 1015. Given defendant's
testimony concerning his constructing the bomb and transporting it
into the bank, the jury could properly infer defendant entered the
bank with the mental intent of purposely or knowingly instilling
fear in the bank teller.
Defendant next implies that his inadequate representation
resulted from the District Court's refusal to provide substitute
counsel. It is within the sound discretion of the trial court to
rule on substitution of counsel, and absent abuse of that
discretion the decision will not be overturned. State v. Martz
(1988), 233 Mont. 136, 139, 760 P.2d 65, 67; State v. Long (1983),
206 Mont. 40, 45, 669 P.2d 1068, 1071 (citing Good v. United States
(9th Cir. 1967), 378 F.2d 934, 935).
The trial court's duty, when considering a motion for
substitution of counsel, is to make adequate inquiry into the
complaint of the defendant and to discover whether the conflict was
so great as to result in a total lack of communication. Martz, at
139-40, 760 P.2d at 67 (citing Brown v. Craven (9th Cir. 1970), 424
F.2d 1166 and United States v. Mills (9th Cir. 1979), 597 F.2d
693). The District Court met its burden, inquiring of defendant
what his reasons for wanting a new attorney were. Defendant
replied that he and Wheatcroft did not see eye to eye and that he
felt Wheatcroft had not "put anything into it yet.'' The tria:L
judge then asked Wheatcroft what he had done about the case..
Wheatcroft indicated he had read statements of people involved,
including the defendant's, held discussions with officers involved,
considered potential defenses, conferred with defendant and
attempted plea bargains.
Obviously, the conflict between defendant and Wheatcroft had
not resulted in total communication breakdown. While the attorney
and client may not have experienced a llmeaningfulrelationship,''
they did not have a total lack of communication. Martz, at 140,
760 P.2d at 67 (citing Morris v. Slappy (1983), 461 U.S. 1, 103
S.Ct. 1610, 75 L.Ed.2d 610).
No showing of ineffective representation based upon a total
lack of communication was made. Therefore, the District Court's

decision will not be disturbed.
We affirm.

We concur: ,+
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44- Chief Justice