State v. Craig
| Decision Date | 14 December 1995 |
| Docket Number | No. 94-606,94-606 |
| Citation | 274 Mont. 140,906 P.2d 683 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Tracy Ray CRAIG, Defendant and Appellant. |
| Court | Montana Supreme Court |
William F. Hooks, Appellate Defender, Helena, for Appellant.
Joseph P. Mazurek, Attorney General, Micheal Wellenstein, Ass't Attorney General Helena, Robert M. McCarthy, Silver Bow County Attorney, Butte, for Respondent.
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.
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 him by the 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 "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. 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 late, 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 Craig replied: 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.
....
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: 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: The following discussion then took place:
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:
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 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...
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