State v. Dewise

• Decision Date: 19 July 2022
• Docket Number: DA 20-0173
• Citation: 513 P.3d 1249
• Parties: STATE of Montana, Plaintiff and Appellee, v. Joseph Paul DEWISE, Defendant and Appellant.
• Court: Montana Supreme Court

513 P.3d 1249

STATE of Montana, Plaintiff and Appellee,

v.Joseph Paul DEWISE, Defendant and Appellant.

DA 20-0173

Supreme Court of Montana.

Submitted on Briefs: June 22, 2022

Decided: July 19, 2022

For Appellant: Joseph P. Howard, Joseph P. Howard P.C., Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana, Marty D. Lambert, Gallatin County Attorney, Eric N. Kitzmiller, Deputy County Attorney, Bozeman, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 A jury in the Eighteenth Judicial District Court, Gallatin County, found Joseph Paul DeWise (DeWise) guilty of deliberate homicide, a felony, in violation of § 45-5-102, MCA, and attempted deliberate homicide, a felony, in violation of §§ 45-4-103 and 45-5-102, MCA. DeWise appeals the District Court's May 13, 2019, Order denying his motion for new counsel. We restate the issue on appeal as follows:

Whether the District Court abused its discretion when it denied DeWise's request to substitute counsel.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 The historical and factual background of DeWise's offenses—including his statements to law enforcement, the court, and his attorneys—provide context for DeWise's interactions with trial counsel and thus inform the issue presented.

1. DeWise's Offenses.

¶3 DeWise and his wife, Lauren, moved to Bozeman in 2016 from Florida. A year later, Lauren disclosed a lengthy history of physical abuse by DeWise to her friend, Audria Butler (Butler). Shortly thereafter, DeWise began contacting Butler through Facebook Messenger, alternating between asking Butler for help with his marriage and warning Butler to stay away from Lauren. Butler previously volunteered in a local domestic violence nonprofit, Haven, and believed Lauren was afraid to leave DeWise and did not know how to remove herself safely from a violent relationship.

¶4 In mid-November 2017, Lauren decided to move into Butler's Belgrade home with Butler and her roommate, Ashley VanHemert (VanHemert). On the night Lauren moved in, Butler said she noticed Lauren's car was gone and in its place was DeWise's truck parked in the driveway. Butler testified that DeWise sent over 30 text messages to Lauren that night, including "something to the extent of, ‘Open the door. I've been beating on this door.’ " After learning DeWise had visited their home, the women began locking their door, which Butler later testified they "hadn't [done] prior to that for the two years [she] lived there." Butler further testified that she borrowed a shotgun from a friend and kept it in her bedroom following DeWise's visit. During the two months Lauren lived in Butler's home, Butler also witnessed several "erratic, aggressive, threatening, and then apologetic" messages from DeWise to Lauren.

¶5 VanHemert had never met DeWise and did not know Lauren prior to Lauren moving into the home. VanHemert knew Lauren was seeking a divorce from DeWise "because he was emotionally and physically abusive." VanHemert testified to an incident in December 2017 where DeWise came to the home around midnight when they were asleep and began pounding on the door for approximately five to ten minutes. Despite VanHemert's entreaties, Lauren refused to call the police, and neither of them addressed or acknowledged DeWise. VanHemert also indicated DeWise would text Lauren constantly in the early part of January 2018.

¶6 On January 4, 2018, Lauren attended a birthday party for the couple's daughter at DeWise and Lauren's home. Following the party, Butler said Lauren told her she "felt like she would probably not be able to go back to [her] house" due to DeWise's abusive and badgering behavior. On the morning of January 7, 2018, Butler returned home from a night away. She noticed her back door was broken and saw boot prints which were larger than what Lauren or VanHemert would have left. She testified her "first thought was [DeWise] was here."

¶7 Butler went upstairs to check on Lauren and VanHemert and discovered Lauren dead in her bedroom.¹ Butler went to VanHemert's room next, where she discovered a bloody VanHemert lying on the floor asking for help. Butler testified that she "screamed [and] stood there briefly trying to decide if [she] could help her, and [she] turned around, and ... after seeing her alive[,] was concerned [DeWise] was still in [the] home. So [Butler] ran down the stairs and out the front door." She ran to a neighbor's house who called 911. Butler later testified that she automatically thought DeWise had broken into her home

[b]ecause of all of the threatening things he said to Lauren. Because of all of the terror he had already caused her. Because of the aggressive things he had said to me. Because he had already been to my home, and frankly, the act of switching those vehicle[s] was very upsetting to me—the first day—and it's one of those culminations of all of the factors. I don't question it at all.

¶8 VanHemert survived and was able to testify at DeWise's trial. She explained that on January 6, 2018, she went out with her boyfriend and returned home between 11:30 p.m. and midnight and got ready for bed. Her next memory was waking up in the hospital after sustaining several gunshot wounds. VanHemert testified that she did not remember being shot, but knew she was "shot in the back of the head ... in the right carotid artery, and ... on [her] right side as well—like, [her] arm." VanHemert suffered a stroke

because of the gunshot wounds. At the time of DeWise's trial, VanHemert was still suffering from the physical aftermath of her injuries.

¶9 At trial, DeWise's 15-year-old son and Lauren's stepson, J.D., testified he had observed several arguments between Lauren and DeWise and that he "was just trying to survive." J.D. testified that DeWise "had trackers in [Lauren's] vehicle because he was paranoid she was cheating on him all the time" and that he actually observed DeWise installing a tracker in her vehicle. J.D. would accompany DeWise when he confronted Lauren as a means of protecting his four-year-old sister. On the night of January 6, 2018, J.D. observed DeWise collecting several items in a plastic shopping bag, which J.D. assumed was work-related. DeWise told J.D. "to go get ready for something. He didn't specify what to get ready for." DeWise told J.D. to leave his phone at their home and to get into DeWise's vehicle. DeWise ignored J.D.’s attempts to ascertain their destination. J.D. testified to a "bad feeling" as they approached Lauren's home. J.D. explained that DeWise pulled out a pistol and told him, "As long as you do what I say, you'll be fine. You'll be okay." J.D. testified that DeWise put on a mask and gloves, gave J.D. a mask and gloves to wear, and made him walk in front of DeWise as they approached Lauren's home. DeWise kicked in the back door, pushed J.D. inside, and began searching rooms. J.D. observed DeWise enter one room, have a brief interaction with its occupant, and fire several shots. When DeWise entered Lauren's room, J.D. "heard [her] gasp, and then [DeWise] shot her multiple times." DeWise and J.D. left the home and stopped at a Town Pump, where DeWise picked up a six-pack of beer.

¶10 After returning home, DeWise ordered J.D. to give him his boots, to put all his clothing in the washing machine, and to take a shower. DeWise left the home briefly, taking J.D.’s boots with him. Upon returning, DeWise told J.D. to dispose of some old smoke grenades and .22 caliber ammunition at the Bozeman Pond Park. It took J.D. several trips to dispose of the munitions. After returning from the park, J.D. testified that DeWise sat down on the couch and told J.D. not to incriminate him "because you don't want to find out the consequences of that," which J.D. took as an open-ended threat. DeWise instructed J.D. to say the family was home all evening watching television.

¶11 J.D.’s older sister, N.D., testified to an "unhealthy" relationship with DeWise because "he had complete control over [her] decisions and [her] opinions. He instilled fear into [her] to where he was always in control." N.D. described Lauren and DeWise's relationship as abusive and corroborated J.D.’s testimony regarding the tracking devices DeWise installed on Lauren's vehicle. She additionally described recordings DeWise made of N.D. to persuade Lauren to return. N.D. explained her reluctance to participate but clarified that DeWise "would tell [her] to speak about certain things, and the way he says it is you know how to answer him, and you know that ... he wants you to say what he wants you to say."

¶12 N.D. testified that on the night of January 6th DeWise woke her up and told her that he had killed Lauren and needed her "cooperation, as in listening to what he had to say." N.D. further testified to receiving a jail phone call from DeWise following his arrest. During the phone call, DeWise asked N.D. to convince J.D. to turn himself in and confess to shooting Lauren and VanHemert because J.D. "would only be in jail for a little while, and then he would get back out and life would be normal."² N.D. explained that DeWise coached her on what to say and that she followed his instructions and did not immediately tell the truth to investigators out of fear.

¶13 DeWise testified at trial that he was sick on January 6th and spent most of the day resting in his recliner. He explained that the only time he left the house that day was to get beer from Town Pump around midnight. DeWise consistently maintained his innocence and reiterated his belief that he was falsely accused.

2. DeWise's Trial and Interactions with Counsel.

¶14 On February 2, 2018, the State charged DeWise with the deliberate homicide of Lauren and the attempted deliberate homicide of VanHemert. The Office of the State Public Defender (OPD) assigned Annie DeWolf (DeWolf) and Alex Jacobi (Jacobi) to DeWise's case. Trial was set for February 2019.

¶15 DeWise sent his first letter to the...