State v. Rose

• Decision Date: 30 December 1998
• Docket Number: No. 97-353,97-353
• Citation: 1998 MT 342,972 P.2d 321,292 Mont. 350
• Parties: , 1998 MT 342 STATE of Montana, Plaintiff and Respondent, v. Richard Wesley ROSE, Defendant and Appellant.
• Court: Montana Supreme Court

Page 321

972 P.2d 321

292 Mont. 350, 1998 MT 342

STATE of Montana, Plaintiff and Respondent, v. Richard Wesley ROSE, Defendant and Appellant.

No. 97-353.

Supreme Court of Montana.

Submitted on Briefs July 16, 1998.

Decided Dec. 30, 1998.

Rehearing Denied Feb. 4, 1999.

William F. Hooks, Appellate Defender Office, Helena, for Appellant.

Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena, John Bohlman, Musselshell County Attorney, Roundup, for Respondent.

HUNT, Justice.

¶1 A jury in the Fourteenth Judicial District Court, Musselshell County, found Richard Wesley Rose guilty of criminal possession of dangerous drugs and accountability for an aggravated burglary. He appeals. We reverse and remand in part and affirm in part.

¶2 The issues are whether Rose's counsel rendered ineffective assistance by failing to request a jury instruction that the testimony of Ross Albrecht must be viewed with distrust, and whether there was sufficient evidence to convict Rose on each of the two charges against him. Because we conclude that Rose was not accorded effective assistance of counsel in relation to the burglary charge, we do not reach the issue of whether there was sufficient evidence to support his conviction of accountability for aggravated burglary.

¶3 This proceeding arose from Rose's activities on the night of September 29-30, 1996. That evening, Ross Albrecht visited Rose at his apartment in Roundup, Montana. Both men consumed beer, which Rose supplied, and prescription medication, which Albrecht supplied. At about 10:00 p.m., Rose gave Albrecht a ride to the apartment building where the mother of Albrecht's child lived. According to Rose, Albrecht asked Rose to wait in the van while he went to see if the mother of his child was at home. According to Albrecht's testimony at Rose's trial, the plan was for Rose to wait in the van while Albrecht burglarized Enjoy Sports, a nearby sporting goods store in downtown Roundup.

¶4 At about 3 a.m., the Musselshell County Sheriff's Office received a call that an alarm was sounding at Enjoy Sports. Officers found Albrecht coming out of the back door of the building. They pursued him on foot a short distance to a narrow alleyway where he was apprehended. Albrecht, who was very lethargic and "[a]ppeared to be under the influence of something," had in his possession a handgun, a bottle of salmon eggs, and two packages of propane cigarette lighters, all of which bore Enjoy Sports price tags. He also had in his possession several items which he later said Ross had supplied to him: a black-handled Phillips tip screwdriver, a syringe containing residue of the controlled substance Diazepam, and five .22 caliber CCI brand bullet cartridges. Later that morning, the sporting goods manager of Enjoy Sports found other items in the narrow opening between buildings where Albrecht had been caught: a sharpening stone, Zigzag rolling papers, a red-handled flat-tipped screwdriver, a Western brand Bowie knife with the initials "D.R." embossed on its sheath, and a .22 caliber Jennings semiautomatic pistol.

¶5 The inside of Enjoy Sports was trashed. The ceiling was damaged and items were overturned from what Albrecht admitted was his entry through a roof vent. Other merchandise racks were tipped over, store items were strewn about, a gun case was broken, and fourteen handguns were scattered about the floor of the store. Shots had been fired out through a front window of the store, and into a telephone box on a wall inside. Another gun, apparently thrown through a window, was found on the sidewalk in front of the store.

¶6 After Albrecht was handcuffed and placed in the back seat of a police car, officers heard a horn honking. Investigating, they found Rose sitting in the driver's seat of the van, slumped over the steering wheel. Rose at first did not seem to notice the officers, who arrested him for DUI and helped him to a police car. In the driver's door pocket of the van, which was owned by Rose's live-in girlfriend, officers found a plastic baggie containing a bent spoon with the initial "R" on it's handle. The spoon contained residue of methamphetamine.

¶7 After his arrest, and while he was in the county jail where Rose was being held, Albrecht executed two written statements in which he claimed that Rose was not involved in the burglary. He stated that he had asked Rose for a ride to the apartment building but did not tell him of his burglary plans. Albrecht later pled guilty to the burglary.

¶8 At Rose's trial, Albrecht contradicted his earlier written statements, testifying that he had executed them under pressure from Rose. He gave a detailed description of the planning of the burglary by himself and Rose. Albrecht testified that, for purposes of the burglary, Rose supplied him with the sharpening stone, red-handled flat-tip screwdriver, Bowie knife, and the .22 caliber semiautomatic pistol in his possession when he was arrested.

¶9 Rose, who testified on his own behalf, denied that he gave any of those items to Albrecht or that he had any knowledge of Albrecht's burglary plans. Rose speculated that Albrecht must have taken these things from Rose's home and van and secreted them on his person when Rose was not looking.

¶10 The jury found Rose guilty of both offenses with which he was charged. He appeals.

Issue 1

¶11 Did Rose's counsel render ineffective assistance by failing to request a jury instruction that the testimony of Ross Albrecht must be viewed with distrust?

¶12 "A criminal defendant is denied effective assistance of counsel if: (1)his counsel's conduct falls short of the range reasonably demanded in light of the Sixth Amendment of the United States Constitution; and (2) counsel's failure is prejudicial." State v. Chastain (1997), 285 Mont. 61, 63, 947 P.2d 57, 58, citing Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.

¶13 We first consider whether the conduct of Rose's counsel fell short of the range reasonably demanded. A jury is to be instructed on all proper occasions that "the testimony of a person legally accountable for the acts of the accused ought to be viewed with distrust." Section 26-1-303(4), MCA. Whether a witness for the prosecution is an accomplice is generally a question for the jury, unless the fact is undisputed. State v. Johnson (1996), 276 Mont. 447, 451, 918 P.2d 293, 295. However, the State's prosecution of one person for the same crime for which the defendant is tried constitutes an acknowledgment that the person is an accomplice to the crime. Johnson, 276 Mont. at 452, 918 P.2d at 296.

¶14 In this case, Albrecht was charged with and pleaded guilty to the offense for which the State claimed Rose was accountable. Albrecht's testimony was that of an accomplice, because Albrecht was an accomplice as a matter of law.

¶15 In State v. Laubach (1982), 201 Mont. 226, 653 P.2d 844 overruled in part, State v. Johnson (1993), 257 Mont. 157, 848 P.2d 496, this Court reversed a conviction due to the trial court's failure to instruct the jury based on this statutory language, even though the court had instructed the jury that it could not convict based on the testimony of one legally accountable for the crime unless the testimony was corroborated by other evidence. This Court held that the language of the statute was mandatory and the error so obvious that "the State should have confessed the error and agreed to a retrial even if the defendant did not prevail on the question of the sufficiency of the corroborating evidence." Laubach, 201 Mont. at 231, 653 P.2d at 847.

¶16 This Court later overruled Laubach "to the extent that it requires giving the instruction in all cases involving accomplice testimony." Johnson, 257 Mont. at 163, 848 P.2d at 499. The Court noted that the record in Johnson disclosed significant accomplice testimony and the instruction should have been given had defense counsel requested it. At issue was whether Johnson's attorney rendered ineffective assistance for failing to request the instruction. This Court held that the accomplice instruction could have been considered inconsistent with the proffered defense that Johnson was not present at the scene of the crime. Thus, under the circumstances of the case, counsel's decision was tactical, and the Court held that Johnson was accorded effective assistance. Johnson, 257 Mont. at 163, 848 P.2d at 499.

¶17 The State also cites Petition of Gillham (1985), 218 Mont. 187, 707 P.2d 1100. There, we concluded that the failure of a defense attorney to request a jury instruction on accomplice testimony did not meet the...