554 P.2d 753 | Mont. | 1976
No. 13240
I N THE SUPREME COURT OF TI-1E STATE OF MONTANA 1976 STATE OF MONTANA, P l a i n t i f f and Respondent, -VS - RICHARD ELLIOTT BROOKS, Defendant and A p p e l l a n t . Appeal from: D i s t r i c t Court of t h e E i g h t e e n t h J u d i c i a l D i s t r i c t , Honorable W. W. L e s s l e y , Judge p r e s i d i n g . Counsel o f Record: For A p p e l l a n t : W i l l i a m E. G i l b e r t a r g u e d , Bozeman, Montana F o r Respondent: Hon. R o b e r t L. Woodahl, A t t o r n e y G e n e r a l , Helena, Montana FJilliam J. Anderson, A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d , Helena, Montana Donald E. White a r g u e d , County A t t o r n e y , Bozeman, Montana Submitted : September 2 , 1976 Decided : 8EP 2 4 1976 2 4 1976 F i l e d : M r . Chief J u s t i c e J a m e s T . H a r r i s o n d e l i v e r e d t h e Opinion of t h e C o u r t .
T h i s i s a n a p p e a l by t h e d e f e n d a n t from a judgment o f c o n v i c t i o n of a g g r a v a t e d a s s a u l t e n t e r e d upon a j u r y v e r d i c t i n t h e d i s t r i c t c o u r t of G a l l a t i n County.
Defendant was c h a r g e d September 2 , 1975, w i t h a g g r a v a t e d a s s a u l t , a v i o l a t i o n of s e c t i o n 9 4 - 5 - 2 0 2 ( 1 ) ( c ) , R.C.M. 1947. On t h i s same d a t e he was a r r a i g n e d , w i t h t r i a l b e i n g s e t f o r September 1 6 , 1975, two weeks from t h e d a t e of a r r a i g n m e n t . P r i o r t o a r r a i g n m e n t , d e f e n d a n t had r e t a i n e d and w a s r e p - r e s e n t e d t h r o u g h o u t t h e a r r a i g n m e n t and t r i a l by J o s e p h B. Garyfi Esq. T r i a l w a s h e l d on September 1 6 , 1975. Both a t t h e o u t s e t of t r i a l and a t t h e c l o s e o f t h e S t a t e ' s c a s e Gary informed t h e d i s t r i c t c o u r t t h a t he was r e a d y t o p r o c e e d . A f t e r a j u r y t r i a l d e f e n d a n t was c o n v i c t e d and s e n t e n c e d t o 1 0 y e a r s i n p r i s o n . Following t h i s c o n v i c t i o n , Gary s t a t e d by a f f i d a v i t : t h a t t h e d i s t r i c t c o u r t informed him on September 11, 1975 ( n i n e d a y s a f t e r a r r a i g n - ment and f i v e d a y s p r i o r t o t h e t r i a l d a t e ) t h a t t h e t r i a l would be c o n t i n u e d due t o t h e p r e s s of o t h e r t r i a l s , whereupon h e c e a s e d t r i a l p r e p a r a t i o n ; t h a t on September 1 5 , 1975, t h e d i s t r i c t c o u r t informed him t h a t t r i a l would be h e l d as o r i g i n a l l y s c h e d u l e d on September 1 6 , 1975; t h a t a s a r e s u l t he was u n a b l e t o a d e q u a t e l y p r e p a r e f o r t r i a l s i n c e he d i d n o t i n t e r v i e w t h e d e f e n s e w i t n e s s e s u n t i l t h e day of t r i a l ; t h a t he had no o p p o r t u n i t y t o i n t e r v i e w t h e S t a t e ' s w i t n e s s e s and no t i m e t o p l a n h i s d e f e n s e .
The o n l y i s s u e p r e s e n t e d on a p p e a l i s whether t h e d i s t r i c t c o u r t , by i t s a c t i o n a s r e l a t e d by Gary, r e n d e r e d d e f e n d a n t ' s r e p - r e s e n t a t i o n by c o u n s e l i n e f f e c t i v e .
I t h a s been w e l l s e t t l e d by t h i s C o u r t and o t h e r s t h a t a d e f e n d a n t i s e n t i t l e d t o e f f e c t i v e a s s i s t a n c e of c o u n s e l under t h e United S t a t e s C o n s t i t u t i o n and t h e Montana C o n s t i t u t i o n of 1972. For a d i s c u s s i o n of t h e c a s e s e s t a b l i s h i n g t h i s r i g h t s e e the recent decision of this Court in State v. McElveen, Mont . - , 544 P.2d 820, 822, 32 St.Rep. 1277. In answering the issue as presented this Court need not concern itself with whether or not defendant was entitled to effective assistance of counsel, but what constitutes "effective assistance of coun- sel".
We note the fact that counsel involved, Joseph B. Gary, was retained by defendant and not appointed by the district court. Furthermore, Gary was present at every stage of the pro- ceeding from arraignment to conviction.
The rule for weighing the effectiveness of retained counsel is quoted in McElveen, citing People v. Wein, 50 Cal.2d 383, 326 P.2d 457:
" ' * * * The handling of the defense by counsel of the accused's own choice will not be declared inadequate except in those rare cases where his counsel displays such a lack of diligence and competence as to reduce the trial to a "farce or a sham" * * * . I "
Also see State v. Noller, 142 Mont. 35, 381 P.2d 293; People v. Maldonado, 3 Ill.App.3d 216, 278 N.E.2d 225; Tompsett v. State of
,1~6? Ohio, 146 F.2d 95, 98, (6th Cir. 1944), cert.den. 324 U.S. .%s ,
65 S.Ct. 916, 89 L.Ed 1424; Hendrickson v. Overlade, 131 F.Supp.
561 (N.D. Ind. 1955).
Defendant had chosen and retained Gary to represent him from arraignment through trial and was so represented with- out any objection on defendant's part as to the competency of counsel or the adequacy of the representation provided. Now after an adverse result at trial, and the affidavit of trial counsel, defendant raises this objection. This squarely meets the rationale for applying the above stated test, as set out in the Tompsett case:
"The concept of this rule is that the lack of skill and incompetency of the attorney is imputed to the defendant who employed him, the acts of the attorney thus becoming those of his client and so recognized and accepted by the court, unless the defendant repudiates them by making known to the court at the time his objection to or lack of concurrence in them. A defendant cannot seemingly acquiesce in his attorney's defense of him or his lack of it, and after the trial has resulted adversely to defendant, obtain a new trial because of the incompetency, negligence, fraud or unskillfulness of his attorney." Applying the doctrines previously set forth and examining
the record of the trial, we find no abuse of defendant's right to effective counsel. All witnesses testified at the trial and no new defense witnesses would be called should a new trial be held. Furthermore, defendant's trial counsel, through direct and cross-examination, offered all defenses admittedly available (self-defense, protection of his customers, and lack of cooper- ation by local law enforcement). Counsel stated in his affidavit that lack of preparation hindered his planning of a defense and effective trial tactics. As stated by the Second Circuit Court of Appeals in United States v. Denno, 313 F.2d 364, 374, cert.den. 372 U.S. $ %T, Ig 83 S.Ct. 1112, 10 L Ed 2d 143:
" * * * Poor tactics of experienced counsel, however, even with disasterous result, may hardly be considered lack of due process * * *."
The affidavit filed by Gary does not change the position
taken by this Court. On two separate occasions, prior to trial and at the close of the State's case in chief, Gary informed the district court that he was ready to proceed. In addition to this, Gary had nine days following arraignment before the district court informed him of its intention to continue the case. Examination of the record makes it appear that Gary did not enter the trial as flat-footed and totally unprepared as is contended. Gary provided defendant more than the minimum required for effective assistance of retained counsel and the trial, on record, was far from "a farce or a sham".
Considering the facts, the district court record and the doctrines applicable to this appeal, we find that the district court did not render defendant's representation by counsel ineffective. In accor the judgment is We concur: