NO. 94-606
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
TRACY RAY CRAIG,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Mark P. Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Esq., Appellate Defender,
Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Micheal Wellenstein, Ass't Attorney General
Helena, Montana
Robert M. McCarthy, Silver Bow County Attorney,
Butte, Montana
ubmitted on Briefs: September 28, 1995
Decided: November 21, 1995
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Tracy Ray Craig (Craig) appeals from a jury verdict in the
District Court for the Third Judicial District, Silver Bow County,
convicting him of robbery. We affirm.
The following issues are presented on appeal:
1. Did the District Court abuse its discretion in denying Craig's
request for new counsel?
2. Did the District Court deny Craig his constitutional right to
the assistance of counsel by refusing to substitute court-appointed
counsel and thereby giving Craig the option of proceeding to trial
with court-appointed counsel or appearing pro se?
3. Did the District Court deny Craig his right to represent
himself by permitting "standby" counsel to become involved in the
defense?
4. Did the District Court err in instructing the jury as to
"admissions" and "confessions?"
On June 15, 1994, the State charged Craig with the robbery of
the Ralph and Rose Formal Wear Shop in Butte, Montana. At the time
of the robbery, Craig was on parole and was a resident of the Butte
Pre-Release Center. Public Defender Pat McGee (McGee) was
appointed to represent Craig. At his arraignment, Craig pled not
guilty and the court set the trial for September 6, 1994, the court
later rescheduled the trial for October 18, 1994. On September 26,
Craig filed a motion to remove McGee as his counsel. In his motion,
Craig stated:
Said motion is based upon all of the files, records and
proceedings herein, and more particularly upon the
grounds that such representation of the Defendant by Mr.
Pat McGee constitutes a distinct violation of the
Defendant's protected rights to have effective assistance
of Counsel for his defense, and presents a conflict of
interest prejudicial to the Defendant's entire case.
3
The District Court denied Craig's motion for substitution of
counsel and offered the following explanation for its ruling:
Based on the pleadings and the record, the Court finds
that the Defendant has failed to allege any facts in
support of his motion that would entitle him to the
requested relief. Section 46-13-101(4), MCA, requires
the moving party to "state with particularity the grounds
for the motion" and to provide a statement of the
"relevant facts upon which the motion is being made."
Defendant's vague allegation that continued
representation of himbythe public defender "constitutes
a distinct violation of the Defendant's protected rights"
is insufficient to show any facts in support of his
request for substitution of counsel.
After the court denied Craig's motion, McGee informed the
court that Craig refused to discuss his defense with him. As a
result, the court conducted a hearing to give Craig the opportunity
to explain on the record why his public defender should be
replaced. At the hearing, Craig stated that there was 'I no
communication between me and my public defender." Additionally,
Craig recited a litany of problems he had with McGee including:
McGee refused to move for either discovery or change of venue;
McGee failed to interview a witness and failed to suppress
evidence; McGee advised him to enter a plea agreement; and, McGee
had seen him only one time.
The deputy county attorney responded to Craig's allegations,
as did McGee. Subsequently, the District Court found that McGee
was providing effective assistance and the denied Craig's motion to
substitute counsel. The court stated:
As with any other defendant, you are entitled to hire any
attorney you wish. Since you're obviously indigent, the
Court appointed Mr. McGee for you. You do have the right
in that circumstance for a court-appointed counsel, but
you do not have the right to choose your own attorney.
3
So I'm just telling you now that you also have the right
to represent yourself for your trial date.
Mr. McGee is going to stay on your case. I'm going
to deny your motion to replace him with any other public
defender. It's too iate, among other things. I don't
think there's been any ineffectiveness on his part in
preparing this case for trial. Nevertheless, he'll be
here in court the morning of the trial, and if you don't
want to use him, that's fine. You go ahead and represent
yourself or bring another attorney. If you want to make
some arrangements otherwise, that's open for you. We're
not going to change anything. The trial is going to go
on as scheduled. Mr. McGee is going to be here as
scheduled, and you're going to be here as scheduled. If
you have a defense, we'd like to hear it from you that
day.
Craig was given a copy of his file and trial began as
scheduled. The first day of trial, before voir dire and in the
presence of the prospective jurors, Craig told the court he was
having problems with McGee acting as counsel. In response, the
court asked him "do you intend to try the case yourself? You're
entitled to do that." Craig replied: "I can't, Your Honor. I'm
not a lawyer." The following colloquy took place concerning
Craig's right to counsel:
THE COURT: You have a lawyer appointed for you. YOU
don't have a lawyer of your choice when you're indigent,
but we do appoint an experienced attorney for you. We've
done that. Your attorney, Mr. McGee, has worked on this
case since its inception. He's submitted, by the way,
instructions as to the law of this case as I've requested
all attorneys to do. He's going to be here in court, and
we're going to proceed with this matter, and he's there
for you to seek counsel from. You can ask for his help
any time you wish, or you can remain mute if you wish.
I don't care what you do. But you're here in court for
a trial, and we're going to go ahead with this trial.
. . .
THE DEFENDANT: Like I said, Your Honor, we had that
meeting on Friday. I told you there was no communication
between me and this lawyer.
4
THE COURT: This is the lawyer you got from the Court,
from the county. This is the lawyer we're paying for
you. He's on retainer for the year. You asked for
change of counsel last week. That's too late to be
asking for changes of counsel. But you, at any time,
could hire your own attorney. I told you that. You can
also act as your own attorney. In the meanwhile, this is
your court-appointed attorney. You can use him if you
wish. He's going to be here through the remainder of
this trial. He'll be subject to your need for assistance
if and so you do need assistance.
During voir dire, the court explained to Craig that he could
examine the jurors or defer to McGee. The court suggested that,
unless he objected, Craig should let McGee conduct the voir dire.
Craig responded: "I can't pick them. I don't know nothing about
them. . . I haven't been in this town long enough. There's
nothing I can do, you know." The court replied: "Mr. Craig, that's
why we've appointed one of the public defenders on your behalf."
The court then directed McGee to conduct voir dire and he did so.
After conducting voir dire, McGee advised Craig that he was
entitled to six peremptory challenges. Craig responded: "I can't
pick them," refused to accept McGee's offers of assistance, and
waived his peremptory challenges.
After the prosecutor gave his opening statement and it was
Craig's opportunity to do so, the court told Craig that he could
make his opening statement, waive it, have McGee give it, or he
could reserve his opening statement until the end of the State's
case-in-chief. Craig responded: "Well, as far as 1'm concerned,
Pat McGee is not my attorney. He gave up that Friday." The
following discussion then took place:
5
THE COURT: He's still an attorney here from the Court's
viewpoint. You can use him any time you wish. You can
change your thinking on that.
THE DEFENDANT: I'm not an attorney, so I guess there
won't be no defense.
THE COURT: Well, what does that mean? Do you want Mr.
McGee to make an attempt here to make a statement?
THE DEFENDANT: That means there would be no defense.
THE COURT: I didn't hear that
THE DEFENDANT: I'm not a lawyer, so I can't defend
myself, so there would be no defense.
THE COURT: Mr. McGee, do you want to make a statement
now?
MR. MCGEE: Your Honor, I'm under limited disability
given the circumstances of what went on. I'll reserve
any opinion.
The court found that Craig reserved his opening statement
During its case-in-chief, the State called seven witnesses and
offered twelve exhibits. Neither Craig nor McGee cross-examined
any witnesses nor objected to any exhibits. When the court asked
Craig if he wished to cross-examine witnesses, Craig's response was
silence, "no," or "I can't, I'm not a lawyer." When the court
asked McGee if he wished to cross-examine the State's first
witness, McGee responded: "Again, he relates that I'm not his
attorney. So I guess there will be no cross-examination, Your
Honor."
McGee participated in the settlement of jury instructions.
During settlement of instructions but prior to the conclusion of
the State's case-in-chief, the court instructed Craig concerning
6
his right to present evidence on his behalf and his right to
testify.
THE COURT: So you make your own decision, and you can
either tell_ the Court at the appropriate time or have Mr.
McGee tell me that you do or do not wish to testify. If
you wish to call any other witness, you may do so.
That's going to happen after the plaintiff rests his case
in chief. So if you have nothing to put on, for
instance, that will be the end of the case, and we'll
submit the case to the jury by me reading the
instructions and sending the jury out to deliberate.
Okay.
After the State rested its case, the court again explained to Craig
his rights to testify, present witnesses on his behalf, and
reminded him of his right to make an opening statement. At that
point, the following dialogue ensued:
THE DEFENDANT: All right. For the record I'd like to
state that I'm not able to present a defense because I'm
not represented by a lawyer, and I'm not a lawyer so, you
know, without a defense I move for a mistrial. And
that's all I got to say.
THE COURT: 1'11 consider that a motion for a mistrial.
Do you want to say why?
THE DEFENDANT: Hmm?
THE COURT: Do you want to explain why you think you
should have a mistrial?
THE DEFENDANT: No defense
THE COURT: Whose fault is that?
THE DEFENDANT: I don't know
THE COURT: Do you wish to add anything, Mr. Canty, or
should I make a ruling?
. .
MR. CANTY: You can rule, Your Honor
THE COURT: You've got nothing to base that upon, Mr.
Craig. Your counsel has been court appointed. He's been
7
here with you. He's worked on this case prior. He's
consulted with you on numerous occasions. He's submitted
instructions on your behalf. He's been here in case you
needed his assistance. You didn't indicate at any time
that you wanted help from him. I don't feel that's his
problem nor Mr. Canty's problem nor my problem. That was
your call.
THE DEFENDANT: I motioned for it.
THE COURT: Now for you to say you want a mistrial
because you feel you didn't have an attorney does not
have any merit to it. That motion is denied. Now, do
you wish to add anything else, present any other defense?
THE DEFENDANT: No
As the parties settled the remaining instructions, McGee
objected to an instruction offered by the State concerning
admissions or confessions made by Craig. The court gave the
instruction over McGee's objection. Craig declined to give a
closing statement; the jury subsequently found him guilty of
robbery.
On November 7, Craig filed, pro se, a Motion for Substitute
Counsel to File For a New Trial. Pursuant to s 46-8-104, MCA,
Craig asked the court to appoint new counsel "for the purposes of
preparing and filing a motion for a new trial on his behalf and to
represent him throughout these criminal proceedings which remain
pending in the above-entitled action." During the hearing on the
motion, the court told Craig that he could not switch attorneys
whenever he wanted to, and denied the motion. The court proceeded
to hold a sentencing hearing and impose judgment.
This case presents a predicament in that Craig did not request
to proceed pro se, did not expressly waive his right to counsel,
and yet failed to cooperate with his court-appointed attorney.
8
Apparently, Craig's intent was to manipulate and to frustrate the
criminal proceedings. The fact that Craig did not seek to proceed
pro se, did not expressly waive his right to counsel, and did not
cooperate with his court-appointed attorney, raises a number of
issues.
1 . Did the District Court abuse its discretion in denying Craig's
request for new counsel?
The question of whether the District Court abused its
discretion in denying Craig's motion for new counsel is pivotal to
the determination of the rest of Craig's claims. The Sixth
Amendment of the United States Constitution and Article II, Section
24 of the Montana Constitution guarantee the fundamental right to
assistance of counsel. State v. Langford (1994), 267 Mont. 95, 99,
882 P.Zd 490, 492, cert. denied, 115 S.Ct. 1128, 130 L.Ed.2d 1090
(1995). Since Gideon v. Wainwright (19631, 372 U.S. 335, 83 S.Ct.
792, 9 L.Ed.2d 799, an indigent defendant in a state criminal
prosecution is entitled to representation by appointed counsel at
public expense. State v. Pepperling (1978), 177 Mont. 464, 472,
582 P.2d 341, 345; State v. Enright (19881, 233 Mont. 225, 228, 758
P.2d. 779, 781. The indigent's right to counsel includes the right
to have "effective assistance" of counsel. Peooerlinq, 582 P.2d at
345 (quoting State v. McElveen (1975), 168 Mont. 500, 503, 544 P.Zd
820, 821).
If appointed counsel renders effective assistance, the
defendant may not demand his appointed counsel's dismissal or
substitution, nor may the defendant demand that certain counsel be
appointed. Pepperlinq, 582 P.2d at 346. In other words, the right
9
to assistance of counsel does not grant defendants the right to
counsel of their choice. State v. Colt (1992), 255 Mont. 399, 404,
843 P.2d 747, 750. It is well settled in Montana that when
appointed counsel is rendering effective assistance, "the defendant
has the choice of (1) continuing with counsel so appointed, or (2)
having his counsel dismissed and proceeding on defendant's own, pro
se." Pepperlinq, 582 P.2d at 346, see also State v. Lange (1987),
226 Mont. 9, 13, 733 P.2d 846, 849; Enriqht, 758 P.2d at 781-82;
State v. Zackuse (1991), 250 Mont. 385, 386, 833 P.2d 142.
Nonetheless, if a defendant presents a seemingly substantial
complaint about effective assistance of counsel, the district court
should conduct a hearing to determine the validity of defendant's
request for substitution of counsel. Enriqht, 758 P.2d at 782.
Subsequently, upon a proper showing that failure to replace
appointed counsel would substantially impair or deny the right to
assistance of counsel, the district court should substitute
appointed counsel. State v. Long (1983), 206 Mont. 40, 44, 669
P.2d 1068, 1071; Enrisht, 758 P.2d at 782.
It is within the discretion of the district court to consider
requests to appoint new counsel and the court's determination will
be sustained absent an abuse of discretion. State v. Morrison
(1993), 257 Mont. 282, 284, 848 P.2d 514, 516; Lonq, 669 P.2d at
1071.
In Enriqht, we held that the district court's failure to
consider Enright's "seemingly substantial complaints" regarding the
effectiveness of counsel was reversible error. Enriqht, 750 P.2d
10
at 782. If a district court does not address a defendant's
complaints regarding effectiveness of counsel, the court may place
a defendant in the untenable position of choosing between
proceeding with ineffective counsel or proceeding pro se: "Such a
set of options is in essence no choice at all." Enriqht, 758 P.2d
at 782. In the instant case, the District Court did not place
Craig in such a position.
Craig's first attempt to remove McGee as counsel was properly
denied by the court. In response to Craig's motion to remove McGee
as counsel, the court found that Craig had failed to allege any
facts in support of his motion that would entitle him to relief, as
required by 5 46-13-101(4), MCA. Since Craig's motion failed to
raise a seemingly substantial complaint about McGee's performance,
no hearing on the motion was required.
Subsequently, McGee informed the court that Craig refused to
cooperate in his defense and the court conducted a hearing to give
Craig the opportunity to present his request for substitution of
counsel. In support of his position, Craig stated that there was
"no communication between me and my public defender." In addition,
he alleged that: McGee refused to move for either discovery or
change of venue; McGee failed to interview a witness and failed to
suppress evidence; McGee advised him to enter a plea agreement;
and, McGee had seen him only one time.
In a similar situation where a defendant refused to cooperate
and communicate with his appointed counsel and later claimed he had
been denied assistance of counsel, we held that " [llack of
11
communication between defendant and defense counsel is not of
itself basis for reversal on grounds of ineffective assistance of
counsel 'I Lonq, 669 P.2d at 1072. In cases where the defendant
refuses to cooperate in his own defense, we apply the general rule
that "a party who participates in or contributes to an error cannot
complain of it." Lonq, 669 P.Zd at 1072 (quoting State v. Lopez
(1980), 185 Mont. 187, 193, 605 P.2d 178, 181). Thus, a defendant
who refuses to cooperate in his own defense cannot complain of
ineffective assistance of counsel. State v. Strandberg (1986), 223
Mont. 132, 136, 724 P.Zd 710, 713; Long, 669 P.2d at 1072; State v.
Miller (19771, 173 Mont. 453, 457, 568 P.Zd 130, 132-33.
At the substitution of counsel hearing, the deputy county
attorney and McGee responded to Craig's allegations. Regarding
Craig's assertion that McGee should move to suppress evidence,
specifically a jacket seized from Craig's room at the Butte Pre-
Release Center, the deputy county attorney explained that as a
prison inmate and resident of the Pre-Release Center, Craig did not
have an expectation of privacy to prevent a search. Additionally,
Craig signed a document consenting to searches as a provision of
his discharge to the Pre-Release Center. McGee had told Craig that
filing a motion to suppress the admission of the jacket would be
frivolous and would be rejected by the court.
As to the witness Craig believed should be interviewed on his
behalf, McGee pointed out that she had already given a statement to
the police department which included the facts that Craig felt were
important. Regarding discovery, the deputy county attorney
12
responded that pursuant to the State's open file policy, McGee had
been given the entire investigative file. Regarding McGee's visits
with Craig, McGee testified that he had met with Craig at the
county jail and also for an extensive visit at the State Prison.
McGee stated that he discussed with Craig everything in his file
and went over the strong and weak points of the case including the
physical evidence.
Craig's other allegations were likewise explained and
countered by the deputy county attorney and McGee, resulting in the
District Court's finding that McGee was providing effective
assistance of counsel. Considering the court's inquiry into
Craig's claims of ineffective counsel and Craig's lack of
cooperation with counsel, we hold that the District Court did not
abuse its discretion and, therefore, was correct in refusing to
substitute counsel.
2. Did the District Court deny Craig his constitutional right to
the assistance of counsel by refusing to substitute his court-
appointed attorney and thereby giving Craig the option of
proceeding to trial with court-appointed counsel or appearing pro
se?
When the District Court correctly denied Craig's request to
substitute appointed counsel, Craig was left with the choice of:
(1) continuing with appointed counsel, or (2) having his counsel
dismissed and proceeding on his own, pro se. Pepperlinq, 582 P.2d
at 346; State v. Lange (1987), 226 Mont. 9, 13, 733 P.2d 846, 849;
Enriqht, 758 P.2d 781-82. He chose neither.
The Sixth Amendment of the United States Constitution has been
interpreted to include a defendant's right to represent himself,
13
pro se. Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525,
45 L.Ed.2d 562. Article II, Section 24 of the Montana Constitution
also provides defendants the right to proceed pro se. ColtI
- 843
P.2d at 749; Lanqford, 882 P.2d at 492. Pursuant to 5 46-8-102,
MCA, a defendant may waive the right to counsel when the court
ascertains that the waiver is made knowingly, voluntarily, and
intelligently. In Lanqford, we specifically adopted the additional
criterion that the request to represent oneself must be
unequivocal. Lanqford, 882 P.2d at 492.
In the instant case, we agree with Craig that he did not
unequivocally request permission to proceed pro se. Craig
requested a change of counsel, which was correctly denied. We
decline to adopt the State's position that Craig's rejection of
McGee's representation constituted an unequivocal request to
proceed pro se and a valid waiver of his right to counsel. Craig's
situation does not meet the unequivocal request standard
established by Lanqford, 882 P.2d 490.
Craig seeks to fault the District Court for failing to advise
him of the dangers inherent in proceeding without counsel. This
argument is disingenuous. Obviously any such advice would have
made no difference to Craig's state of mind or the outcome of the
proceeding since Craig made it abundantly clear that he was not
opting to proceed pro se. Rather, his ploy was to circumvent the
court's adverse ruling on his motion to remove McGee and force
appointment of new counsel. Craig did not seek permission to
proceed pro se. He consistently and repeatedly reiterated that he
14
was not qualified to conduct voir dire, crossexamine witnesses or
present a defense and, in fact, he was not representing himself.
His candid admissions of his own shortcomings relative to
experienced counsel suggest that he was well aware of the
advantages of representation by counsel. Thus, despite any
inadequacies in the District Court's inquiry, Craig understood the
importance of counsel and the dangers and disadvantages of
proceeding without counsel or refusing to cooperate with court-
appointed counsel. United States v. Sandles (7th Cir. 19941, 23
F.3d 1121, 1128.
The court did not leave Craig without counsel. On the
contrary, it clearly insisted on leaving McGee in as counsel. The
District Court continually referred to McGee as Craig's court-
appointed attorney: "This is your court-appointed attorney. YOU
can use him if you wish."
A defendant may waive his right to counsel altogether.
Faretta, 422 U.S. 806. Accordingly, "at some point a criminal
defendant can be deemed to have waived to a certain extent his
constitutional right to effective assistance by virtue of his
unreasonable refusal to communicate with his attorney." Thomas v.
Wainwright (11th Cir. 1985), 767 F.2d 738, 743, cert. denied, 475
U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 349 (1986). The Thomas court
stated that a "persistent unreasonable demand for dismissal of
counsel [is] the functional equivalent of a knowing and voluntary
waiver of counsel." Thomas, 767 F.2d at 743 (citing United States
v. Moore (5th Cir. 1983), 706 F.2d 538, 540, cert. denied, 464 U.S.
15
859, 104 S.Ct. 183, 78 L.Ed.2d 163 (1983)). In Thomas, the
Eleventh Circuit found that Thomas had unreasonably chosen to
remain silent and had refused to communicate with his counsel or
the court, yet this behavior did not establish that his attorney
failed to provide reasonably effective assistance of counsel.
Thomas, 767 F.2d at 744.
In the present case, Craig was provided with counsel. With a
clear understanding of the dangers of proceeding without counsel,
Craig, instead of cooperating with his appointed counsel, chose to
present no defense. Craig's choice to present no defense, like
Thomas' choice to remain silent, effectively waived any right to
more effective counsel than was possible under the circumstances.
Thomas, 767 F.2d at 743. All the court can do is appoint competent
counsel. Whether that counsel is effective depends to a great
extent upon whether the defendant cooperates with counsel. If the
defendant chooses to hamstring the counsel through lack of
cooperation, the counsel's effectiveness will, of course, be
compromised accordingly.
In refusing to cooperate with his appointed counsel and, at
the same time insisting that he was not asking to proceed pro se,
Craig was attempting to force the appointment of new counsel. This
Court cannot countenance such dilatory and manipulative tactics at
the expense of the efficient administration of justice. In United
States v. Kelm (9th Cir. 1987), 827 F.2d 1319, defendant Kelm
refused to accept an appointed attorney and also refused to waive
his right to counsel, saying that he wished to hire counsel of his
16
own choosing. Despite Kelm's failure to appear at hearings
concerning his right to counsel, the court granted three
continuances in order for him to obtain counsel. The court refused
to grant any further continuances and, as a result, Kelm was left
without counsel at trial. Kelm argued that the court failed to
advise him regarding his right to counsel and that any waiver of
that right was therefore not knowing and intelligent. The Ninth
Circuit held that, reading the record as a whole, it was fair to
conclude that Kelm understood the dangers and disadvantages of
self-representation. "He knew he was entitled to counsel, yet the
record establishes that he elected to defend himself with his 'eyes
open. ' I' -, 827 F.Zd at 1322.
Kelm The court noted that courts must
be wary against the "right to counsel" being used as a ploy to gain
time or effect delay. ~, 827 F.2d at 1322 (citing United States
Kelm
v. Lustig (9th Cir. 1977), 555 F.2d 737, 744, cert. denied, 434
U.S. 1045, 98 S.Ct. 889, 54 L.Ed.2d 795 (1978)). The Ninth Circuit
concluded that Kelm was manipulating his constitutional right to
counsel in an effort to effect delay and that this tactic resulted
in a waiver of his right to counsel of his choice.
Where a defendant's conduct is "dilatory and hinders the
efficient administration of justice," a court may deny a
continuance even if it results in the defendant's being
unrepresented at trial. United States v. Leavitt (9th Cir. 1979),
608 F.2d 1290, 1293. Like Kelm, Craig manipulated his right to
counsel in an effort to force appointment of new counsel despite
17
the existence of no seemingly substantial basis for such a
replacement.
Craig contends that he was not manipulative because he did not
seek appointment of a particular counsel and did not seek
continuances or delays. However, Craig's tactic of asserting his
right to counsel while rejecting McGee presented the court with a
Hobson's choice: either you give me counsel to my liking, or I will
refuse to cooperate with the court-appointed counsel and then argue
denial of my Sixth Amendment rights. The court provided Craig with
competent counsel. The fact that McGee's effectiveness as counsel
was compromised by Craig's lack of cooperation was Craig's own
doing. Lens, 669 P.2d at 1072.
Craig's decision to reject McGee's assistance did not, as the
State argues, leave him only one option--to proceed pro se.
Instead, he chose to neither cooperate with his court-appointed
counsel, nor to present any defense. The inevitable result of his
"no defense" strategy was a one-sided, prosecutorial presentation
to the jury. We hold that the District Court did not deny Craig
his constitutional right to effective assistance of counsel.
3. Did the District Court deny Craig his right to represent
himself by permitting "standby" counsel to become involved in the
defense?
Craig alleges that by allowing McGee to participate in the
trial as standby counsel, the District Court destroyed "the jury's
perception that the defendant is representing himself." McKaskle
v. Wiggins (1984), 465 U.S. 168, 177, 104 S.Ct. 944, 951, 779
18
L.Ed.Zd 122. This claim fails because we have held that Craig did
not unequivocally assert his right to represent himself.
Throughout the trial, neither the court, the prosecutor, McGee
himself, nor Craig ever referred to McGee as standby counsel.
Instead he was referred to by the court and the prosecutor as
Craig's attorney. McGee performed an extensive voir dire resulting
in one juror excusing herself because she was not sure she could be
fair to Craig. Even after voir dire and the State's opening
statement, when Craig stated McGee was not his attorney as far as
he was concerned, the court continued to view McGee as the attorney
available for Craig's defense.
The option of proceeding pro se was left open to Craig
throughout the trial. However, Craig did not seek permission to
proceed pro se. Thus, the jury did not have the perception that
Craig was representing himself. After the State's opening
statement, McGee's participation in the trial was very limited due
to Craig's non-cooperation. This may have left the jury confused as
to why Craig would choose to block his attorney's assistance, but
at no point were the jurors led to believe by the court, Craig,
McGee, or the State that Craig was proceeding pro se.
Outside the presence of the jury, Judge Sullivan, the
prosecutor, and McGee, with Craig present, settled the jury
instructions. Throughout this procedure Craig did not participate
nor did he object to McGee's participation. Judge Sullivan
continually consulted with McGee but acknowledged that McGee's
participation was limited by Craig's wishes. Judge Sullivan
19
stated: "He's calling the shots." This did not signify that Craig
was proceeding pro se, but that, as for all clients, Craig
determined his own defense. Craig did not assert his right to
proceed pro se and he did not object to McGee's limited
participation in the trial. Furthermore, Craig does not suggest
that McGee's participation in any way conflicted with his "actual
control over the case he chooses to present to the jury."
McKaskle, 465 U.S. at 178. Since the jury was never given the
impression that Craig was proceeding pro se, it cannot be said that
McGee's participation "destroyed the jury's perception that the
defendant is representing himself." McKaskle, 465 U.S. at 177.
Accordingly, we hold that the District Court did not deny Craig's
right to represent himself.
In sum, our holding in this case is narrowly tailored to the
unique situation Craig presents. By not cooperating with his
court-appointed attorney and not proceeding pro se, Craig attempted
to manipulate the court into appointing new counsel. However, as
the District Court found, McGee did provide effective assistance of
counsel. It was only Craig's noncooperation that compromised
McGee's representation. Although Craig's tactics resulted in a
self-defeating and unwise defense, we cannot countenance
manipulation of the Sixth Amendment in order to sabotage the
criminal justice system.
4. Did the District Court err in instructing the jury as to
"admissions" and "confessions?"
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Craig asserts that the District Court improperly instructed
the jury on admissions and confessions by giving Jury Instruction
No. 7. Jury Instruction No. 7 states:
A statement made by a defendant other than at this
trial may be an admission or a confession.
A confession, as applied in criminal law, is a
statement by a person made after the offense was
committed that he committed or participated in the
commission of a crime. An admission is a statement made
by the accused, direct or implied, of facts pertinent to
the issue, and tending, in connection with proof of other
facts, to prove his guilt. A conviction cannot be based
on an admission or confession alone.
The circumstances under which the statement was made
may be considered in determining its credibility or
weight. You are the exclusive judges as to whether an
admission or a confession was made by the defendant, and
if so, whether such statement is true in whole or in
part. If you should find that any such statement is
entirely untrue, you must reject it. If you find it is
true in part, you may consider that part which you find
to be true.
Evidence of an oral admission or oral confession of
the defendant should be viewed with caution.
Craig alleges that he made neither a confession, nor an
admission. Craig's statements in question were made to Detective
Green after the robbery. When questioned by Detective Green about
the robbery, Craig stated: "I want it to be known that I did not
have a gun." He also told Detective Green that he could not "make
it" in the outside world.
In State v. Thompson, we stated: "An 'admission' is defined
as an avowal or acknowledgement of a fact or of circumstances from
which, together with other facts, guilt may be inferred . An
admission does not acknowledge guilt; rather, it tends to establish
guilt." State v. Thompson (1993), 263 Mont. 17, 25, 865 P.2d 1125,
21
1130 (citing State v. Goltz (1982), 197 Mont. 361, 363, 642 P.2d
1079, 1084 (other citations omitted) ) Thompson argued that the
court erred in characterizing statements he made at his omnibus
hearing as admissions and erred in charging the jury with the same
instruction that was used in the present case. This Court
concluded that Thompson's statement was inconsistent with his
theory of innocence and that the district court was correct in
instructing the jury on possible admissions.
In the present case, the District Court correctly presented
the j U~Y with the instruction concerning admissions and
confessions. Although Craig questions whether his statements were
admissions or confessions, the jury may have construed them as
inconsistent with innocence and thus treated them as admissions.
Accordingly, the court properly apprised the jury of the difference
between an admission and a confession; instructed the jury that a
conviction cannot be based on an admission or confession alone;
informed the jury that it alone was to determine if an admission
had been made; and advised the jury that an admission should be
viewed with caution. This instruction was to Craig's benefit. It
ensured that the jury did not overvalue Craig's statements. This
Court will uphold a district court if the instructions given,
viewed as a whole, fully and fairly instruct the jury on the law
applicable to the case. Thompson, 865 P.2d at 1131 (citing State
v. Lundblade (19811, 191 Mont. 526, 529, 625 P.Zd 545, 548). The
instruction given by the District Court is a correct statement of
22
the law, therefore, we hold that the District Court did not err in
instructing the jury on the law applicable to admissions.
Affirmed.
We concur:
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