State v. Deschon

• Decision Date: 30 January 2002
• Docket Number: No. 00-292.,00-292.
• Citation: 308 Mont. 175,40 P.3d 391,2002 MT 16
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Respondent, v. Joseph Lester DESCHON, Defendant and Appellant.

40 P.3d 391

308 Mont. 175

2002 MT 16

STATE of Montana, Plaintiff and Respondent, v. Joseph Lester DESCHON, Defendant and Appellant.

No. 00-292.

Supreme Court of Montana.

Submitted on Briefs June 21, 2001.

Decided January 30, 2002.

For Appellant: Chad Wright, Appellate Defender, Helena, MT.

For Respondent: Honorable Mike McGrath, Attorney General; Tammy Plubell, Assistant Attorney General, Leo Gallagher, County Attorney, Helena, MT.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Appellant Joseph Deschon was convicted in the First Judicial District Court, Lewis and Clark County, of Deliberate Homicide. He appeals. We remand for further proceedings consistent with this opinion.

¶ 2 We re-state the issues on appeal as follows ¶ 3 1. Was Deschon denied effective assistance of counsel because his counsel had a conflict of interest that adversely affected his performance?

¶ 4 2. Was Deschon's right to due process violated because no transcript of voir dire exists for review on appeal?

FACTS AND PROCEDURE

¶ 5 In the fall of 1999, Deschon's nephew, James Anthony Azure, came to Montana to be with his family. He stayed at Deschon's apartment. Approximately five weeks later, Azure's girlfriend, Cheryl Gouge, arrived from Minnesota with her two-year-old son. Azure, Gouge and her son stayed at Deschon's apartment, sleeping on a futon in the living room.

¶ 6 On the afternoon of November 6, 1999, Deschon, Azure and Gouge were at a friend's apartment drinking and socializing and playing cards. There was noticeable tension between Deschon and Azure when the three left at six that evening. Before returning to Deschon's apartment, Azure stopped and bought more beer. Azure, Deschon and Gouge then had a few more drinks at Deschon's apartment. Azure and Deschon began arguing, and Deschon asked Azure to leave the apartment. Azure left the apartment twice for an hour each time. A neighbor testified that she heard Deschon yelling by the back door of the building and telling people to get out of the apartment. She asked them to keep it down, and Azure responded by yelling profanities at her.

¶ 7 A fight eventually broke out between Deschon and Azure. Gouge was in the other room at the time, changing her son's diaper. Deschon told a police officer that he and Azure were arguing and that "out of the blue" Azure punched him and, as a result, he fell into the counter, cutting his head. Gouge testified that she heard a lamp break and looked up to see Deschon punching Azure. When Azure stood up, Gouge saw blood on his shirt. She stated he was covered in blood and turned white and pale and complained that he couldn't breathe. Deschon told Gouge to call 911, and he began performing CPR on Azure.

¶ 8 The police arrived, and Azure was taken to the hospital. When he arrived at the hospital, he was in cardiopulmonary arrest. Dr. Harper performed an emergency thoracotomy and discovered that the sack surrounding the heart was full of blood. Dr. Harper discovered a hole in the heart and repaired it. Ultimately, the doctors determined that Azure had suffered irreversible brain damage from the lack of oxygen. Approximately a week later, Azure's family decided to remove him from life support, and he died soon after. The state medical examiner concluded that Azure died from complications of a stab wound to the chest.

¶ 9 Deschon admitted stabbing Azure, but told police that he was protecting himself.

¶ 10 On November 19, 1999, the State of Montana charged Deschon with Deliberate Homicide, a felony, in violation of § 45-5-102, MCA, and Assault with Bodily Fluid, a misdemeanor, in violation of § 45-5-214, MCA. Randi Hood and Jeremy Gersovitz of the Lewis and Clark County Public Defender Office were appointed to represent Deschon. Deschon filed a Notice of Intent to Rely on the Defense of Justifiable Use of Force and on the morning of trial, he pled guilty to Assault with Bodily Fluid.

¶ 11 A jury trial was held on the offense of deliberate homicide. Deschon requested individual voir dire because of adverse pretrial publicity which included inadmissible information about Deschon's previous criminal history. The court reporter did not report the voir dire proceedings, however. According to the jury list, neither party moved to excuse any individual juror for cause and the parties' peremptory challenges were recorded and a final jury was selected.

¶ 12 During trial, the defense called William Lawrence to testify in support of Deschon's affirmative defense of justifiable use of force. Gersovitz, one of Deschon's attorneys, was also representing Lawrence on pending charges for felony domestic abuse. The night before the trial began, a deputy county attorney met with Lawrence at the Lewis and Clark County Jail regarding his testimony at the Deschon trial. Gersovitz was not present at this meeting. Lawrence later told Gersovitz that he felt intimidated by the county attorney and was afraid that his testimony would have a negative effect on the plea negotiations in his own case. Lawrence testified at trial that he met Azure at a bar on the evening of the fight, and Azure told him he had "just got done kicking the shit out of [Deschon]."

¶ 13 The jury returned with a verdict finding Deschon guilty of deliberate homicide. The District Court sentenced Deschon to the Montana State Prison for fifty years with ten years suspended for the offense of deliberate homicide, an additional five years for the use of a weapon, and one year for the offense of Assault with Bodily Fluids. This appeal followed.

¶ 14 Was Deschon denied effective assistance of counsel because his counsel had a conflict of interest that adversely affected his performance?

¶ 15 Deschon argues that his counsel, Gersovitz, represented competing interests by representing Lawrence, a key defense witness, while Deschon's trial was in progress. He points out that while representing Deschon, Gersovitz was also representing Lawrence and engaging in plea negotiations with the State on Lawrence's behalf. He emphasizes that Gersovitz informed the court that he represented Lawrence on an unrelated matter and noted that the county attorney had interviewed Lawrence and that Lawrence "clearly felt intimidated," and was worried that his testimony in the Deschon trial would have a negative effect on the outcome of his own case. Deschon argues that Lawrence's testimony was essential to his affirmative defense of justifiable use of force and that Gersovitz's simultaneous representation caused a conflict because he was required to present a complete defense for Deschon and at the same time protect Lawrence from potential negative consequences of testifying in the Deschon trial. Deschon argues that because of the conflict, Gersovitz did not examine Lawrence fully and that, as a result, Lawrence's credibility was diminished. Specifically, Deschon claims that Gersovitz should have questioned Lawrence on the stand about feeling intimidated by his discussion with the county attorney, and he argues that Gersovitz did not pursue that line of questioning in order to protect Lawrence.

¶ 16 The State argues that Deschon and Lawrence did not have competing interests, and that, even assuming a conflict existed, it did not adversely affect Gersovitz's performance. The State points out that Deschon and Lawrence were not co-defendants, Lawrence was in no way implicated in the crime Deschon was accused of and had no personal stake in the outcome of the trial. Additionally, any fear of reprisal Lawrence may have harbored did not affect his testimony. Lawrence took the stand and told the jury that Azure confided in him that he had already "kicked [Deschon's] ass" once that night and was prepared to do it again. The State claims that testimony concerning Lawrence's feeling intimidated by the county attorney would have been irrelevant and inadmissible.

¶ 17 The Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution guarantee a criminal defendant the right to the assistance of counsel. Mere representation by counsel is not sufficient, however; the assistance must be effective to give true meaning to that right. State v. Jones (1996), 278 Mont. 121, 125, 923 P.2d 560, 562. The constitutional right to effective assistance of counsel is comprised of two correlative rights: the right to counsel of reasonable competence and the right to counsel's undivided loyalty. Jones, 278 Mont. at 125, 923 P.2d at 562. The Sixth Amendment contemplates the assistance of an attorney devoted solely to the interests of his client and this duty is perhaps the most basic of counsel's duties. Jones, 278 Mont. at 125, 923 P.2d at 562-63.

¶ 18 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. State v. Christenson (1991), 250 Mont. 351, 355, 820 P.2d 1303, 1306 (citing Cuyler v. Sullivan (1980), 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333, 348). An actual conflict, as opposed to the mere possibility of a conflict, is necessary. Such conflict must be proved through a factual showing on the record. Sanders v. Ratelle (9th Cir.1994), 21 F.3d 1446, 1452. A defense attorney has an actual conflict when he is required to make a choice advancing another client's...