State v. Long

NO. 82-195

I N THE SUPREME COURT O THE STATE OF FlONTANA
F

1983

STATE O MOLJTANA,
F

P l a i n t i f f and R e s p o n d e n t ,

J O H N D. LONG, a / k / a
WAYNE ARLO HALL, SR.,

D e f e n d a n t and A p p e l l a n t .

APPEAL FROpi: D i s t r i c t Court of t h e Sixteenth J u d i c i a l District,
I n a n d f o r t h e County o f Rosebud,
The I-Ionorable A l f r e d B. C o a t e , J u d g e p r e s i d i n g .

COUidSEL O RECORD:
F

For Appellant:

Leo G a l l a g h e r , H e l e n a , Montana

For Respondent :

Mon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
J o h n S. F o r s y t h e , County A t t o r n e y , F o r s y t h , Montana

S u b m i t t e d on B r i e f s : J u n e 9, 1983

Decided: September 2 9 , 1983

Filed: SEP 2 9 1983
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Defendant appeals from a conviction of felony arson
following jury trial in the Sixteenth Judicial District
Court, Rosebud County. We affirm.
Defendant raises two issues:
(1) Did the District Court err in refusing to grant
defendant's second request that a new attorney be appointed
to represent him, after new counsel had previously been
appointed?
(2) Was defendant denied effective assistance of
counsel because of insufficient communication between
defendant and court-appointed counsel?
In September 1981, defendant was working on the Brewer
ranch near Forsyth, Montana. He was living in a trailer home
owned and provided to him by his employers. Defendant was
fired by the Brewers and shortly thereafter evicted from the
trailer when he refused to leave. The day after defendant
was evicted, the trailer was destroyed by an explosion and
fire. Defendant's automobile was seen by witnesses at the
trailer immediately before the blast and speeding away
immediately after. Defendant had stated he intended to
destroy the trailer. He was charged with and convicted of
arson. He was sentenced to ten years incarceration and five
years were suspended.
Garry P. Bunke of Forsyth was appointed to represent
defendant. Defendant pleaded not guilty. His motion for
reduction of bail was denied, but his motion for psychiatric
evaluation at Warm Springs was granted. At the omnibus
hearing, counsel indicated defendant would present an alibi
or insanity defense. But the defendant was found competent
and capable of assisting in his own defense. At trial, the
State's evidence established that although defendant had been
in another town the day before the fire, he had been seen at
the trailer the night before and the day of the fire.
In November and early December defendant wrote two
letters to Judge Coate complaining about his attorney. He
claimed Bunke was not adequately representing him and that
Bunke had a conflict of interest because he had previously
represented some local law enforcement officers in personal
matters. A hearing on defendant's request was held December
4, 1981. The Court removed Bunke as defense counsel and
appointed John Houtz to represent defendant. Defendant
nonetheless said he would write the Bar Association regarding
the matter.
Defendant wrote Judge Coate again on December 21, 1981,
complaining that because Houtz was a partner of Bunke he
should also be replaced, or defendant should be allowed to
represent himself. In fact, Bunke and Houtz shared office
space, but were not partners. The Court nonetheless ordered
a hearing on defendant's request, which was held December 30,
1981. Defendant claimed he had received no legal advice from
either attorney and that he thought unspecified additional
actions should have been taken in his behalf. Judge Coate
asked defendant for specific facts to show counsel was not
adequately representing him. Defendant claimed that no one
had explained the arson charge or his constitutional rights,
even though Judge Coate had previously explained these
matters to defendant. Houtz detailed the substantial work he
had done on defendant's case. Defendant's request for new
counsel was denied and a plea agreement was rejected by Judge
Coate.
It was disclosed later that at defendant's initial
interview with Houtz, defendant refused to cooperate with
Houtz, tried to overturn the table and stalked out of the
room saying he wanted a new attorney. Rut defendant later
contacted Houtz to discuss a plea change. Houtz apparently
had advised defendant to plead guilty. This led to a plea
agreement that was rejected by the Court at the December 30
hearing because defendant claimed to lack the requisite
knowledge. In preparing for trial, Houtz discussed with
defendant affirmative defenses that might be available, but
suggested that the best strategy was probably a general
denial of the charge, forcing the State to prove all elements
of the crime.
Defendant wrote to Judge Coate again on January 7, 1982,
saying that he still wanted a new attorney, that he
"retracted" everything he had said while being represented by
Houtz, and that he had "fired" Houtz on December 23, 1981.
Defendant said if he wasn't given a new lawyer he would not
"come to court or trial at all." He did attend trial, but
there apparently had been little communication between the
defendant and Houtz because defendant had refused to
cooperate in preparation of the defense. The State's
witnesses were cross-examined, but the defense did not call
witnesses. Defendant was convicted after a three day trial
and now appeals.

Defendant first argues that the District Court erred in
refusing to order substitution of defense counsel. He argues
that his letters of protest made clear to the District Court
that counsel could not render effective assistance, and that
failure to replace Houtz was therefore error. We disagree.
In Peters v. State (1961), 139 Mont. 634, 366 P.2d 158,
we stated:
"The State of Montana provides one charged with
crime with the assistance of counsel to be
appointed by the District Court and paid by public
 funds. We do not question, that upon a proper
showing, such counsel could be discharged by the
Court and a substitution made, where it appears
that failure to do so would substantially impair or
deny the right of such assistance of counsel, but
such discharge or substitution cannot be made by a
defendant, unless defendant is able to provide sc
;h
counsel at his own exDense or desires to undertake
his own defense, bedause the discretion - - of the
Court - -be exercised, - - - -
must and it is not bound to
honor such requests without yood reason." peters,
139 Mont. at 636, 366 P.2d at 159 (emphasis added).
The District Court was correct in refusing to substitute
counsel absent a showing that failure to do so would
substantially impair or deny defendant's right to counsel.
Defendant presented no specific details suggesting any lack
of adequate representation by Houtz. Defendant's
dissatisfaction with Houtz apparently stemmed from his
erroneous belief that Houtz and Bunke were partners. Most of
defendant's complaints were unrelated to the assistance of
counsel issue. Consideration of requests to appoint new
counsel is within the discretion of the District Court, and
the determination of the District Court will be sustained
absent an abuse of discretion. Good v. United States (9th
Cir. 1967), 378 F.2d 934, 935.
Defendant argues that the District Court ignored his
pleas for appointment of a new attorney, thereby assuring
that defendant would not receive assistance of an attorney
familiar with defendant's version of the facts. The record
shows, however, that the District Court took defendant's
requests seriously. It ordered two hearings on the counsel
issue. The first hearing resulted in appointment of new
counsel as defendant had requested. The second hearing, on
December 30, 1981, failed to establish a basis for replacing
Houtz . After careful consideration, Judge Coate felt
appointment of a third attorney was unwarranted. That the
Court took defendant seriously is shown by the Court's
refusal to accept defendant's change of plea after defendant
claimed at that hearing to lack the requisite knowledge.
Moreover, the statements of Houtz at that hearing supported
the Court's determination that Houtz was rendering effective
1

assistance. There was no showing that continued
representation by Houtz would substantially impair
defendant's right to counsel.
The District Court did not err in refusing to appoint a
third attorney to represent defendant.

Defendant next argues that he was denied effective
assistance of counsel. Defendant was clearly entitled to
reasonably effective assistance of counsel under State v.
Rose (Mont. 1980), 608 P.2d 1074, 1081-82, 37 St.Rep. 642,
649-50. Defendant argues that because he and Houtz did not
communicate there was no "meaningful relationship" between
them, that this precluded Houtz from acting within the range
of competence demanded of attorneys practicing criminal law,
and that defendant was therefore necessarily denied effective
assistance. We disagree.
The United States Supreme Court rejected the "meaningful
relationship" argument in the recent case of Morris v.
Slappy, No. 81-1095 (U.S. April 20, 1983). There,
defendant's original court-appointed counsel was unexpectedly
hospitalized about one week before trial and a new attorney
was substituted. Defendant refused to cooperate with the
second attorney despite the attorney's thorough preparation
and statements to the Court that he was ready for trial. The
Ninth Circuit Court of Appeals held that the Sixth Amendment
right to counsel guarantees a "meaningful attorney-client
relationship". The Supreme Court reversed, stating:
 "The Court of Appeals' conclusion that the Sixth
Amendment right to counsel 'would be without
substance if it did not include the right to a
meaningful attorney-client relationship,' 649 F.2dI
at 720 (emphasis added), is without basis in the
law. No authority was cited for this novel
ingredient of the Sixth Amendment guarantee of
counsel, and of course none could be. No court
could possibly guarantee that a defendant will
develop the kind of rapport with his
attorney - privately retained or provided by the
public - that the Court of Appeals thought part of
the Sixth Amendment guarantee of counsel.
Accordingly, we reject the claim that the Sixth
Amendment guarantees a 'meaningful relationship'
between an accused and his counsel." Morris v.
Slappy, No. 81-1095, slip op. at 11-12 (U.S. April
20, 1983) (footnote omitted) .
Lack of communication between defendant and defense counsel
is not of itself basis for reversal on grounds of ineffective
assistance of counsel.
Defendant cites various provisions of the ABA Standards
in support of his argument. Yet, nothing in the record shows
that counsel omitted anything required by the ABA Standards
or the Sixth Amendment. Defendant concedes that no errors
were committed by trial counsel. The record shows that
defendant received not only adequate, but diligent and
conscientious representation. This representation included
filing of various motions with supporting memoranda,
questioning the State's witnesses before and during trial and
sentencing, pre-trial investigation, numerous interviews with
defendant and meetings with the prosecutor. The essence of
the attorney-client relationship is that the attorney provide
the client with meaningful representation. There is no
showing that Houtz failed in this case to provide defendant
with such representation.
Defendant claims that because Houtz did not know his
version of the facts, evidence which favored the defendant's
story was not presented at trial. But defendant's claim that
an available alibi defense was not presented is unsupported
by the record or other appropriate documentation. At trial,
evidence that defendant claimed to be in another town at the
time of the crime was clearly refuted by evidence that
defendant was seen at the trailer the night before and the
day of the crime. Defendant further argues that it is
unknown what evidence might have been presented if Houtz had
been familiar with defendant's story. But defendant alone
is responsible for this omission, if in fact any omission
occurred. Significantly, defendant offers no facts which
could have been presented at trial but were not.
We have previously rejected ineffective assistance
claims made by defendants who refused to cooperate in their
own defense. In State v. Lopez (Mont. 1980), 605 P.2d 178,
37 St.Rep. 36, the District Court refused to substitute
counsel after defense counsel submitted an affidavit stating
that he was getting no cooperation from defendant in
preparing a defense, that he would be unable at trial to do
little more than sit at the counsel table, and that he would
have difficulty representing defendant, although he would do
his best despite defendan.tls refusal to cooperate. We
rejected defendant's claim that the District Court's failure
to remove defense counsel denied defendant a fair trial. We
found that defense counsel had done his best under the
circumstances and had provided an adequate defense. Because
the problem was caused by the defendant's refusal to
cooperate, we applied the general rule that ". . . a party
who participates in or contributes to an error cannot
complain of it. l1 605 P.2d at 181, 37 St.Rep. at 40.
Similarly, in State v. Miller (1977), 173 Mont. 453, 568 P.2d
130, we held that the defendant could not claim ineffective
assistance of counsel where the problems he complained of
resulted from his own actions. 173 Mont. at 457, 568 P.2d at
132-33.
Here, it is undisputed that the defendant refused to
cooperate with Houtz. The record shows that defendant
refused to accept the District Court's determination that he
was not entitled to appointment of a third attorney. As in
Lopez, we will not allow the defendant to complain of
problems caused by his refusal to cooperate with defense
counsel.
We hold that the lack of communication between defendant
and Houtz did not deny defendant effective assistance of
counsel. The record clearly shows that defendant received
effective assistance of counsel. Moreover, any lack of
communication between Houtz and defendant was caused by
defendant's refusal to assist in his own defense.
Affirmed.

Justic
We concur:

ALP. Q~
Chief Justice