State v. Christenson, 91-134

• Decision Date: 19 November 1991
• Docket Number: No. 91-134,91-134
• Citation: 820 P.2d 1303,250 Mont. 351
• Parties: STATE of Montana, Plaintiff and Respondent, v. David James CHRISTENSON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1303

820 P.2d 1303

250 Mont. 351

STATE of Montana, Plaintiff and Respondent, v. David James CHRISTENSON, Defendant and Appellant.

No. 91-134.

Supreme Court of Montana.

Submitted on Briefs Aug. 1, 1991.

Decided Nov. 19, 1991.

Edward G. Beaudette, Knight, Dahood, McLean & Everett, Anaconda, for defendant and appellant.

Marc Racicot, Atty. Gen., Barbara Harris, Asst. Atty. Gen., Helena, Robert L. Deschamps, County Atty., Missoula, for plaintiff and respondent.

GRAY, Justice.

The defendant, David James Christenson, appeals his convictions of criminal possession of cocaine, criminal possession of methamphetamine and criminal possession of dangerous drug paraphernalia following a jury trial in the District Court of the Fourth Judicial District, Missoula County. We affirm.

The defendant raises the following issues:

1. Was the defendant denied effective assistance of counsel arising from a conflict of interest of trial counsel?

2. Was the defendant denied effective assistance of counsel as a result of trial counsel's stipulation to the admission of a videotape of the crime scene into evidence?

3. Did the District Court err by allowing the jury to view the videotape during deliberations?

On September 5, 1989, a search warrant was executed at 911 Charlo, Missoula, Montana, by members of the Missoula County Sheriff's Department, the Missoula City Police Department and the Montana Criminal Investigation Bureau. The defendant answered the door to the residence and, upon entry, officers found Robert L. Peterson exiting one of the bedrooms. By checking identification and paperwork in the two bedrooms of the residence, officers established that one bedroom was occupied by the defendant and the other was occupied by Peterson.

Both the defendant and Peterson were arrested and transported to jail shortly after officers arrived. The officers continued their search of the residence and, as they conducted their search, a videotape was made of the items found and the rooms in which they were found.

In the bedroom occupied by the defendant, officers found the defendant's wallet, including his driver's license, and an envelope and numerous prescription pill bottles with his name on them. On top of the dresser, in plain view, Detective Larry Jacobs found a plastic bag containing white powder residue which was later identified as cocaine. In plain view on another dresser, Detective Jacobs found a spoon with white powder on it which was later identified as methamphetamine. Detective Jacobs also found a pipe in a dresser drawer. Cannabinol, a substance contained in marijuana, later was determined to be in the residues in the pipe. Detective Jacobs also found thirteen bindles, or folded paper containers, in the dresser. Three of the bindles contained methamphetamine. Numerous other items were found in the defendant's and Peterson's bedrooms, including additional dangerous drugs, scales, a police scanner and loaded weapons.

On September 12, 1989, the defendant was charged by information with criminal possession of valium, criminal possession of methamphetamine with intent to sell, and criminal possession of dangerous drug paraphernalia. An amended information was filed on June 1, 1990, charging the defendant with criminal possession of cocaine, criminal possession of methamphetamine with intent to sell and criminal possession of dangerous drug paraphernalia.

A jury trial was held on October 29 through 31, 1990 on the charges stated in the amended information. During trial, the defendant's trial counsel, William Dee Morris, stipulated to the admission of the videotape into evidence with the provision that it be played without sound. After the jury began its deliberations, it requested a video cassette recorder in order to view the videotape. The court allowed the jury to view the videotape without volume in the jury room.

On October 31, 1990, the jury found the defendant guilty of criminal possession of cocaine, a lesser included offense of criminal possession of methamphetamine, and criminal possession of dangerous drug paraphernalia. Following trial, the defendant retained new counsel. The defendant was sentenced on December 6, 1990 to five years imprisonment in the Montana State Prison on the first two counts and to six months in the Missoula County Jail on the third count. The sentences on the first and third counts are to run concurrently; the sentence on the second count is to run consecutively and was suspended on certain terms and conditions. The defendant appeals his convictions.

I

Was the defendant denied effective assistance of counsel arising from a conflict of interest of trial counsel?

The Sixth Amendment guarantee of effective assistance of counsel is comprised of two correlative rights. The first is the right to counsel of reasonable competence. McMann v. Richardson (1970), 397 U.S. 759, 770-71, 90 S.Ct. 1441, 1448-49, 25 L.Ed.2d 763, 773. The second is the right to counsel's undivided loyalty. Wood v. Georgia (1981), 450 U.S. 261, 271-72, 101 S.Ct. 1097, 1103-04, 67 L.Ed.2d 220, 230.

The United States Supreme Court has articulated several standards by which to determine whether these rights have been violated. General claims of ineffective assistance of counsel involving challenges to counsel's competency or performance are reviewed under the two-pronged test articulated in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. However, in cases raising claims of ineffective assistance of counsel due to conflicts of interest, the Strickland Court retained the standard articulated in Cuyler v. Sullivan (1980), 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333. Under Cuyler, a defendant must show: (1) that counsel actively represented conflicting interests, and (2) that an actual conflict of interest adversely affected counsel's performance. Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719.

Where an ineffective assistance of counsel claim is based on an alleged conflict of interest, rather than a lack of reasonable competence, prejudice is presumed if the defendant satisfies both prongs of the Cuyler test. Strickland, 466 U.S. at 692, 104 S.Ct. at 2066. In such a situation, the presumption of prejudice is warranted because the duty of loyalty, "perhaps the most basic of counsel's duties," is breached and "it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests." Strickland, 466 U.S. at 692, 104 S.Ct. at 2066. Although Cuyler involved a conflict of interest between clients, the presumption of prejudice extends to conflicts between the client and his or her counsel's personal interests. Mannhalt v. Reed (9th Cir.1988), 847 F.2d 576, 580.

A short time after the defendant's convictions in the District Court, his trial counsel, William Dee Morris, was charged by federal authorities with conspiracy to manufacture and distribute methamphetamine, income tax fraud arising from the sale of methamphetamine and other associated criminal activity. The defendant contends that because of Morris' "apparent participation in the use, manufacture and distribution of methamphetamine at the same time" he was representing the defendant, the first prong of the Cuyler test is satisfied because an actual conflict of interest existed. The defendant cites Mannhalt, in which the Ninth Circuit Court of Appeals held that an actual conflict of interest exists when an attorney is accused of crimes similar or related to those of his client, in support of his argument. Mannhalt, 847 F.2d at 581.

The defendant asserts that the second prong of the Cuyler test can be presumed from the overall lack of aggressiveness shown by trial counsel in cross-examination and in counsel's failure to establish critical facts in presentation of the defense. He argues that a reading of the transcript demonstrates the lack of a coherent defense strategy and an avoidance of inquiry into issues such as Robert Peterson's source for the methamphetamine which he testified he brought into the defendant's residence.

In Mannhalt, the defendant, Guenter Mannhalt, was tried on charges of conspiracy to commit robbery, robbery, attempted robbery, and possession of stolen property. Before trial, a witness for the prosecution told police officers that Mannhalt's trial counsel had purchased stolen property. Counsel became aware of this accusation while preparing for Mannhalt's trial and, although he discussed the accusation with Mannhalt, he did not point out a potential conflict of interest. Counsel then represented Mannhalt at trial and Mannhalt was convicted. In Mannhalt's claim for federal habeas corpus relief, the Ninth Circuit Court of Appeals held that the first prong of the Cuyler test was satisfied, stating:

We find that when an attorney is accused of crimes similar or related to those of his client, an actual conflict exists because the potential for diminished effectiveness in representation is so great. For example, a vigorous defense might uncover evidence of the attorney's own crimes, and the attorney could not give unbiased advice to his client about whether to testify or whether to accept a guilty plea.

Mannhalt, 847 F.2d at 581.

In this case, the defendant relies solely on the fact that shortly after his convictions in District Court, his trial counsel was charged by federal authorities with similar criminal offenses. Although the defendant asserts that Morris' participation in drug-related offenses during the time of Morris' representation is apparent, he does not allege that a conflict of interest existed because the basis of the federal charges were acts committed by Morris during Morris' representation or that Morris was under investigation by federal authorities during Morris' representation of him. InMannhalt, trial counsel's personal interests were conclusively shown to be at odds with those of the defendant during the time of his representation of the...