State v. Holm

• Decision Date: 05 March 2013
• Docket Number: No. DA 11–0697.,DA 11–0697.
• Citation: 304 P.3d 365,369 Mont. 227
• Parties: STATE of Montana, Plaintiff and Appellee, v. Brian Elien HOLM, Defendant and Appellant.
• Court: Montana Supreme Court

369 Mont. 227

304 P.3d 365

STATE of Montana, Plaintiff and Appellee,

v.Brian Elien HOLM, Defendant and Appellant.

No. DA 11–0697.

Supreme Court of Montana.

Submitted on Briefs Dec. 19, 2012.

Decided March 5, 2013.

For Appellant: Richard R. Buley, Tipp & Buley, P.C.; Missoula, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General; Helena, Montana.

Justice BRIAN MORRISdelivered the Opinion of the Court.

[369 Mont. 228]¶ 1Brian Holm(Holm) appeals his conviction in the Fourth Judicial District, Missoula County.Holm alleges that the District Court denied Holm's constitutional right to effective assistance of counsel when the District Court denied Holm's request for substitution of counsel and for a continuance eight days before trial so that Holm could retain private counsel.We affirm.

¶ 2 Holm presents the following issues on appeal:

¶ 3Whether the District Court abused its discretion by finding that Holm's counsel was providing effective assistance of counsel?

¶ 4Whether the District Court abused its discretion by failing to grant a continuance eight days before trial to allow Holm to retain private counsel?

PROCEDURAL AND FACTUAL BACKGROUND

¶ 5 Holm was driving northbound on Brooks Street in Missoula, Montana, around 10:45 pm on November 9, 2010.Holm's vehicle veered into the southbound lane and onto the sidewalk on the southbound side of Brooks Street.Three men, including Brian Beaver(Beaver), were walking together on the sidewalk.Holm's vehicle hit Beaver from behind.The force from the vehicle threw Beaver into the side of a building.Holm's vehicle crashed into a light post approximately 50 feet past where his vehicle had hit Beaver.Emergency responders took Beaver to Community Hospital where he died from severe blunt force trauma to his head.

¶ 6 Police Officers William Tucker and Patrick Erbacher responded to the accident scene.Officer Tucker spoke with Holm.Holm's speech was slurred, his eyes were bloodshot, and Officer Tucker smelled the odor of alcohol on Holm's breath.Officer Tucker evaluated the accident scene.The roads were clear and dry.Officer Erbacher looked for skid marks that would indicate that Holm had tried to stop his vehicle.Officer Erbacher found no skid marks.Police Detective J.C. Denton conducted an investigation at the accident scene.Detective Denton found liquid in a to-go cup in Holm's vehicle that contained 6% alcohol concentration.Holm later admitted that the to-go cup contained Black Velvet and Coke.

¶ 7 Emergency responders took Holm to St. Patrick's Hospital.Officer Tucker administered an HGN test on Holm at the hospital.Holm received the maximum score of six.This score indicated that Holm was under the influence of alcohol.Officer Tucker then received Holm's consent to conduct a blood draw.The blood draw revealed that Holm had a blood alcohol content of 0.1.Holm also had 0.14 milligrams of Ambien in his blood.Ambien is a prescription sleep aid.

¶ 8 A forensic toxicologist, Sara Hansen(Hansen), testified at Holm's trial that 0.14 milligrams falls within the therapeutic range for Ambien.She further testified that a person with that quantity of Ambien in their system could fall asleep while driving.Ambien contains a warning label that a person should not take it with alcohol.Hansen testified that alcohol combined with Ambien would increase a person's impairment.

¶ 9 Holm also had two other drugs in his blood.Holm had 0.14 milligrams of an antidepressant, Venlafaxine, in his blood.Hansen testified that a person generally should not take antidepressants with alcohol because they can cause greater impairment in a person than alcohol alone.Holm also had 0.02 milligrams of Hydrocodone, a narcotic painkiller, in his blood.Hansen testified that 0.02 milligrams falls below the therapeutic level, but still represents a sufficient quantity to affect a person.She added that combining these three drugs with alcohol could cause more impairment than each one individually.

¶ 10 Holm initially stated at the hospital that he did not remember the accident.He later claimed that three men had run in front of his car near the main entrance to Southgate Mall, by Denny's Restaurant, which caused Holm to lose control of the vehicle and crash.The accident actually occurred near a different entrance to Southgate Mall.Holm eventually admitted that he had heard someone mention that the accident had occurred by the entrance to Southgate Mall.He had presumed that the accident had occurred near the main entrance.

¶ 11 Holm also admitted that he did not remember seeing anyone crossing the street.Holm claimed that he had been “speculating” and trying to “figure out what had happened.”Holm also admitted that it was possible he had fallen asleep or passed out while driving.Holm testified at trial, however, that he had swerved to avoid a collision with a vehicle that had been traveling toward Holm in Holm's lane.Holm claimed that he did not initially remember this other vehicle because he suffered from trauma-induced amnesia.

¶ 12 Holm was assigned a public defender, Scott Spencer(Spencer).Eight days before Holm's trial, on July 26, 2011, Holm appeared in court with Spencer and a separate attorney, Richard Buley.Buley told the District Court that Holm had contacted him and asked him to represent Holm.Buley requested a continuance so he could have more than eight days to prepare.Buley stated that he would file a substitution of counsel form if the court granted the continuance.The District Court expressed concern that Holm was attempting to delay the trial.The District Court denied Holm's motion for a continuance.

¶ 13 Holm provided the District Court with a pro se motion for appointment of different counsel and a request for a continuance three days later.Five days remained before the trial.Holm claimed that Spencer's representation was deficient.The District Court held an initial inquiry into Holm's claim of ineffective assistance of counsel on the day before the trial.The court determined that Spencer was providing adequate representation and denied Holm's request for substitution of counsel.

¶ 14The court also considered whether to grant a continuance so that Holm could retain private counsel.The State argued that Holm merely was attempting to delay the trial.The State pointed out that Holm's accident had occurred in November 2010.The trial initially had been set for April 13, 2011, but Holm had filed a motion to continue the trial.The court rescheduled the trial for August 3, 2011, pursuant to Holm's motion.The State further argued that Holm had filed a motion to continue on July 8, 2011, on the basis of medical issues.Holm sought to continue the trial until November.Holm withdrew this second motion to continue during the hearing to consider that motion on July 19, 2011.The State noted that Holm had not sought substitute counsel as part of his July 8, 2011, motion to continue or his July 19, 2011, withdrawal of the motion to continue.

¶ 15The court agreed with the State that it appeared Holm merely was attempting to delay the trial.The court noted that Holm should have been preparing for the August 2011 trial since November 2010.The court further noted that Holm previously had received a continuance in the trial, from April 2011 to August 2011.The court determined that Holm had failed to show diligence, and, therefore, denied Holm's motion to continue.

STANDARD OF REVIEW

¶ 16We review for abuse of discretion a district court's denial of a request for appointment of new counsel.State v. Dethman,2010 MT 268, ¶ 11, 358 Mont. 384, 245 P.3d 30.We review for abuse of discretion a district court's denial of a request for a continuance.State v. Garcia,2003 MT 211, ¶ 10, 317 Mont. 73, 75 P.3d 313.

DISCUSSION

¶ 17Whether the District Court abused its discretion by finding that Holm's counsel was providing effective assistance of counsel?

[369 Mont. 231]¶ 18 Criminal defendants enjoy a fundamental right to effective assistance of counsel.U.S. Const. amend. VI;Mont. Const. art. II, § 24;Dethman,¶ 15.The Sixth Amendment to the United States Constitution entitles indigent defendants to representation by appointed counsel paid for by the public.Gideon v. Wainwright,372 U.S. 335, 342–45, 83 S.Ct. 792, 795–97, 9 L.Ed.2d 799(1963);Dethman,¶ 15.The right to effective assistance of counsel, however, does not grant defendants a right to counsel of their choice.An indigent defendant possesses no right to demand substitution of counsel provided that the appointed counsel has been providing effective assistance.Dethman,¶ 15.

¶ 19The trial court must make an “adequate initial inquiry” as to whether the defendant's allegations are “seemingly substantial” when a defendant complains that his appointed counsel has been providing ineffective assistance.State v. Gallagher,1998 MT 70, ¶ 15, 288 Mont. 180, 955 P.2d 1371.The trial court considers the defendant's factual complaints and any explanation by the defendant's counsel during this initial inquiry.Gallagher,¶ 15The trial court must hold a hearing to address the validity of these complaints if the court determines that the defendant has presented a “seemingly substantial” complaint about inadequate counsel.Gallagher,¶ 15The court does not need to make any further inquiry, however, if the court instead determines that the defendant has failed to present a “seemingly substantial” complaint.Gallagher,¶ 15

¶ 20 Holm's motion detailed various claims of ineffective assistance of counsel.Holm argued that Spencer had failed to interview any witnesses and had not subpoenaed any witnesses.Holm claimed that Spencer needed to retain experts to testify as to Holm's blood alcohol content and the effect of the presence of prescription drugs in Holm's blood.Holm also claimed that Spencer should have retained an accident...