Longjaw v. State, DA 11–0087.

• Decision Date: 30 October 2012
• Docket Number: No. DA 11–0087.,DA 11–0087.
• Citation: 2012 MT 243,288 P.3d 210,366 Mont. 472
• Parties: Timothy J. LONGJAW, Petitioner and Appellant, v. STATE of Montana, Respondent and Appellee.
• Court: Montana Supreme Court

366 Mont. 472

288 P.3d 210

2012 MT 243

Timothy J. LONGJAW, Petitioner and Appellant,

v.STATE of Montana, Respondent and Appellee.

No. DA 11–0087.

Supreme Court of Montana.

Submitted on Briefs Aug. 8, 2012.

Decided Oct. 30, 2012.

For Appellant: Matthew J. Wald; Wald Law Office, PLLC, Hardin, Montana.

For Appellee: Steve Bullock, Montana Attorney General; C. Mark Fowler, Assistant Attorney General; Helena, Montana, Fred Van Valkenburg, Missoula County Attorney; Jason Marks, Deputy County Attorney; Missoula, Montana.

Justice JIM RICE delivered the Opinion of the Court.

[366 Mont. 473]¶ 1 A jury convicted Timothy J. Longjaw (Longjaw) of aggravated burglary and sexual intercourse without consent in the Fourth Judicial District Court. Longjaw argues his convictions should be reversed because his standby counsel had a conflict of interest, the District Court erred by modifying the jury instructions regarding aggravated burglary during jury deliberations, and his counsel was ineffective for failing to obtain an independent medical expert. The State concedes reversible error on the instruction issue and requests that Longjaw's conviction for aggravated burglary be vacated on that basis. Because Longjaw was also convicted of sexual intercourse without consent, we must undertake review of the remaining two issues:

¶ 2 1. Did Defendant's standby counsel have an active conflict of interest that requires reversal of the Defendant's sexual intercourse without consent conviction?

¶ 3 2. Did the Defendant's counsel render ineffective assistance by failing to obtain an independent medical expert to aid in the defense?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 Longjaw was charged in December 2009 with aggravated burglary and sexual intercourse without consent. Longjaw forced his way into the apartment of a mentally disabled woman with whom he was acquainted and sexually assaulted her. The victim's daughter called the police to request a welfare check on her mother. When the police arrived at the apartment, they found Longjaw asleep and intoxicated in the living room. The victim said Longjaw ripped off her bra and forced her to have sex with him and repeatedly asked the officers to remove Longjaw from her apartment. The victim was examined by a registered nurse from the First Step sexual assault program at St. Patrick's Hospital in Missoula. The registered nurse found that the victim's injuries were inconsistent with consensual sex.

¶ 5 Longjaw was convicted of both charges after a jury trial in the Fourth Judicial District Court, Missoula County, in September 2010. The District Court sentenced Longjaw to 40 years in the Montana State Prison for aggravated burglary and 60 years in the Montana State Prison for sexual intercourse without consent, the sentences to run concurrently.

¶ 6 Longjaw was represented by several attorneys during pre-trial proceedings. Longjaw was first represented by Katie Green from the Office of the Public Defender, but due to a conflict of interest between Longjaw and another client of the office, William Boggs was contracted to represent Longjaw as conflict counsel. Disagreements between Boggs and Longjaw arose, and the case was assigned to Jordan Kilby and Gregory Hood of the Office of the Public Defender. The record indicates there were personality conflicts within these attorney-client relationships. On August 20, 2010, Longjaw filed a motion for leave to represent himself. The District Court conducted a hearing on August 24 on Longjaw's motion and thereafter denied the request. On August 31, Longjaw renewed his request, and after questioning Longjaw and determining that Longjaw understood the dangers associated with self-representation, the District Court granted his request and directed that Kilby and Hood would act as standby counsel for the trial.

¶ 7 On the morning of trial, Kilby and Hood informed the District Court that a witness on the State's witness list, Jennifer Haygood (Haygood), had previously been represented by their regional public defender office on a different but tangentially related matter, which presented a potential conflict of interest. Kilby said, “I think even as standby counsel we might have a problem. But it is our agency's position that we don't,” adding that the potential conflict had been through two levels of review by the Office of the Public Defender. The court stated it did not have an opinion on the conflict at that point and would have to think about it further. The State indicated it would not call Haygood as a witness. No further inquiry was made by the court, and the case proceeded to trial. During trial, Longjaw called Haygood as a witness and questioned her briefly.

¶ 8 In response to Longjaw's expressed concerns about obtaining a second medical opinion and other issues, the District Court conducted a hearing on April 29, 2010. Boggs, who was then representing Longjaw, explained that, in his view, a second opinion might not be necessary because he anticipated that an interview with the medical staff at First Step would “obviate the need for a second opinion, but I'm not certain of that.” Boggs indicated he was not then inclined to request a second opinion, stating “I'm not going to do it unless the Court orders me to, unless I think it's important to the case to get a second opinion. And I'm just not in a position to know that yet.”

¶ 9 During jury deliberations, the jury sent a note to the court asking for clarification on jury instruction number 7, which read: “[a] person commits the offense of aggravated burglary if the person knowingly enters and remains unlawfully in an occupied structure ...” (emphasis added). The court sent a note to the jury changing jury instruction number 7 to read: “[a] person commits the offense of aggravated burglary if the person knowingly enters or remains unlawfully in an occupied structure ...” (emphasis in original). The court similarly modified the language in jury instruction number 8.

DISCUSSION

¶ 10 1. Did the Defendant's standby counsel have an active conflict of interest that requires reversal of the Defendant's sexual intercourse without consent conviction?

¶ 11 Criminal defendants are guaranteed the right to assistance of counsel through the Sixth Amendment of the United States Constitution and Article II, Section 24 of the Montana Constitution. State v. St. Dennis, 2010 MT 229, ¶ 28, 358 Mont. 88, 244 P.3d 292 (citing Kills On Top v. State, 2000 MT 340, ¶ 37, 303 Mont. 164, 15 P.3d 422). The right to “conflict-free representation” guaranteed in the Sixth Amendment is applied to the states through the Due Process Clause of the Fourteenth Amendment. St. Dennis, ¶ 28. We review the conflict of interest issue de novo. St. Dennis, ¶ 19.

¶ 12 The State notes a conflict of authority nationally on the question of whether the right to conflict-free representation extends to standby counsel and the absence of Montana precedent on the point. Longjaw arguesthat the right should extend to standby counsel and offers Washington v. McDonald, 143 Wash.2d 506, 22 P.3d 791 (2001), in support. In McDonald, the Supreme Court of Washington extended the right of conflict-free representation to standby counsel, holding that prejudice is presumed and reversal is required when an actual conflict existed or when the trial court reasonably should have known about a conflict but failed to properly inquire into the conflict. McDonald, 22 P.3d at 795. Longjaw urges adoption of the rules stated in McDonald, arguing that “where counsel raises an issue of conflict of interest to the district court, reversal should be automatic because of the fundamental seriousness of a Sixth Amendment violation.”

¶ 13 However, the central issue briefed by the parties, which we deem dispositive, is whether an actual conflict existed in this case. Thus, assuming arguendo that the right to conflict-free representation extends to standby counsel, we turn to that central issue. We decline to address further, as unnecessary under these facts, the various rules and analyses adopted by Washington and other jurisdictions.

¶ 14 Noting “the unique nature of public defender offices as opposed to private law firms,” we held that “the better approach for analyzing purported conflicts of interest within [the Office of the Public Defender] is the case-by-case approach.” St. Dennis, ¶¶ 30, 32. “Under the case-by-case approach, if defendant proves that an actual conflict exists, he or she must then demonstrate that counsel's performance was adversely affected by the conflict.” St. Dennis, ¶ 29 (citing Illinois v. Morales, 209 Ill.2d 340, 283 Ill.Dec. 544, 808 N.E.2d 510, 514–15 (2004)). See also Thurston v. State, 2004 MT 142, ¶ 17, 321 Mont. 411, 91 P.3d 1259 (“[a] defendant claiming ineffective assistance of counsel due to a conflict of interest must show: (1) that counsel actively represented conflicting interests; and (2) that an actual conflict of interest adversely affected counsel's performance.”). If we determine no actual conflict existed, “we need not examine counsel's performance to determine if such performance was adversely affected by the ostensible conflict.” St. Dennis, ¶ 37.

¶ 15 We have explained that “[a]n actual conflict, as opposed to the mere possibility of a conflict, is necessary.” State v. Deschon, 2002 MT 16, ¶ 18, 308 Mont. 175, 40 P.3d 391( Deschon I ). “A defense attorney has an actual conflict when he is required to make a choice advancing another client's interests to the detriment of his client's interest.” Deschon I, ¶ 18 (citing U.S. v. Gantt, 140 F.3d 249, 254 (D.C.Cir.1998)) (citation omitted). In St. Dennis, we cited the discussion concerning potential and actual conflicts provided in People v. Christian, 41 Cal.App.4th 986, 48 Cal.Rptr.2d 867 (1996). St. Dennis, ¶ 33.Christian explained that “[t]here is a possibility of conflict, then, if the interest of the defendants may diverge at some point so as to place the attorney under...