State v. Insua

• Decision Date: 27 January 2004
• Docket Number: No. 01-105.,01-105.
• Parties: STATE of Montana, Plaintiff and Respondent, v. Albert Ernest INSUA, Defendant and Appellant.
• Court: Montana Supreme Court

84 P.3d 11

2004 MT 14

319 Mont. 254

STATE of Montana, Plaintiff and Respondent, v. Albert Ernest INSUA, Defendant and Appellant.

No. 01-105.

Supreme Court of Montana.

Submitted on Briefs November 14, 2002.

Decided January 27, 2004.

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

For Respondent: Honorable Mike McGrath, Attorney General; Jim Wheelis, Assistant Attorney General, Helena, Montana, George Henry Corn, County Attorney, Hamilton, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Albert Insua (Insua) appeals from the judgment entered by the Twenty-First Judicial District, Ravalli County, following his conviction of one count of sexual intercourse without consent and three counts of sexual assault. We affirm.

¶ 2 We restate the issues on appeal as follows:

¶ 3 1. Whether the District Court adequately advised Insua of the dangers of representing himself.

¶ 4 2. Whether the District Court abused its discretion by limiting Insua's cross-examination, closing argument, and the calling of witnesses.

¶ 5 3. Whether the District Court admitted prejudicial evidence of other crimes.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 In July of 1999 Insua was charged with criminal production or manufacture of dangerous drugs and with sexual intercourse without consent upon a minor female, S.H. The Information was later amended three times to add three charges of sexual assault involving S.H. and two other minor females, A.C. and K.L. Upon Insua's motion, and over the State's objection, the District Court severed trial of the drug manufacturing charge from the trial of the sex crime charges. The drug trial commenced first, and a jury convicted Insua of criminal production or manufacture of dangerous drugs in May of 2000. That same month a jury trial on the sex crime charges commenced.

¶ 7 On the first day of trial, Insua assisted his appointed counsel, David Stenerson (Stenerson), who had represented Insua in the drug trial, to conduct jury selection. However, before the State began presenting its case on the second day, Stenerson advised the District Court that Insua wanted to represent himself. Stenerson further advised the court that a person has the right to represent themselves "as long as the court sufficiently inquires whether the person knows what kind of right they're giving up," and that Stenerson had spoken with Insua and "[a]dvised him of the dangers of going pro se." The District Court then questioned Insua regarding his self-representation. The court asked him if he understood the role that the attorney plays in a criminal trial and he said that he did. The court warned him that "it would probably be in [his] best interests to have someone else ask questions of [the] children, rather than have [Insua] confront [the] witnesses directly ... from a strategic point of view." The court also pointed out that the "extensive experience" Stenerson had as a trial attorney was "not something that [Insua could] just walk into." After Insua acknowledged this, the court allowed the trial to proceed with Insua representing himself and Stenerson acting as standby counsel.

¶ 8 During Insua's cross-examination of the State's witnesses, Insua attempted to demonstrate that poor relations between Insua and the victims' parents, and between Insua's daughter and A.C., were motivating factors that led to the victims' sexual allegations against Insua. He questioned P.L. and D.H., fathers to two of the girls, about their relations with Insua to show that the men were not "neighborly," as they had indicated in their direct testimony. Insua asked D.H. if D.H. had ever called Insua a "nigger lover." D.H. answered "no," but the District Court ordered the remark stricken. Insua then asked D.H. about "beating up a cop in California." D.H. denied the story, and the court then sustained the State's relevance objection to the question. Insua asked P.L. if P.L. knew P.L. was suspected of theft at P.L.'s place of employment and "where did you get up the money for all those trading cars [sic] that you gave my children?" The court sustained the State's relevancy objections to these questions. The court also sustained the State's objection to Insua's questions about whether K.L. had been left with another man who had temporarily resided with K.L.'s family, when Insua could not satisfy the court's request that he demonstrate the relevancy of the inquiry.

¶ 9 Over Insua's objection, A.C. testified that she had seen Insua smoking marijuana and the presence of pipes in the "pantry," and that it smelled like marijuana there. The "pantry" was an outbuilding where Insua spent a lot of alone time and where one of the alleged sexual assaults occurred. Testimony during the trial indicated that Insua kept candy, dolls, children's toys and a television in the pantry.

¶ 10 After Insua had rested his case, the court and parties discussed jury instructions. The State expressed concern that Insua would argue, during his closing, that because the State had not presented evidence of physical trauma to S.H., the alleged victim in the sexual intercourse without consent count, the State had failed to prove the charge. The District Court barred Insua from making this argument, noting that Detective Clarkson testified, based on his training and experience, that it was not surprising that there was no evidence of physical trauma from digital penetration, the kind of physical trauma alleged here, and that Insua had failed to demonstrate that digital penetration would necessarily yield discernible trauma.

¶ 11 The jury found Insua guilty of sexual intercourse without consent and three counts of sexual assault. Insua, represented by counsel on appeal, asks for reversal and remand for a new trial.

STANDARD OF REVIEW

¶ 12 A defendant's relinquishment of his right to counsel must be done voluntarily, knowingly and intelligently. State v. Colt (1992), 255 Mont. 399, 404, 843 P.2d 747, 750.

¶ 13 "We review discretionary trial court rulings for an abuse of discretion.... Discretionary trial court rulings include such things as trial administration issues, scope of cross-examination, post-trial motions, and similar rulings." Konitz v. Claver, 1998 MT 27, ¶ 32, 287 Mont. 301, ¶ 32, 954 P.2d 1138, ¶ 32 (citing May v. First Nat. Pawn Brokers, Ltd. (1995), 270 Mont. 132, 134, 890 P.2d 386, 388; Harwood v. Glacier Elec. Co-op., Inc. (1997), 285 Mont. 481, 486-87, 949 P.2d 651, 655).

DISCUSSION

ISSUE ONE

¶ 14 Whether the District Court adequately advised Insua of the dangers of representing himself.

¶ 15 "Article II, Section 24 of the 1972 Montana Constitution, and the right to a fair trial inherent in the due process clause of Art. II, Section 17, guarantee a defendant charged with a crime the right to assistance of counsel." Colt, 255 Mont. at 403, 843 P.2d at 749 (citing State v. Enright (1988), 233 Mont. 225, 228, 758 P.2d 779, 781). In addition, "`the Sixth Amendment right to counsel includes the right of an accused to personally make his own defense.'" Colt, 255 Mont. at 403, 843 P.2d at 749 (quoting State v. Brown (1987), 228 Mont. 209, 213, 741 P.2d 428, 431).

¶ 16 Insua argues that the District Court did not advise him about the specific "dangers and disadvantages" of representing himself, and thus, he did not validly waive his right to counsel. He contends that because we held in State v. Spang, 2002 MT 120, ¶ 22, 310 Mont. 52, ¶ 22, 48 P.3d 727, ¶ 22, that the right to representation under the Montana Constitution is broader than the federal right, our generalized inquiry as to whether substantial credible evidence exists that the defendant made a voluntary, knowing and intelligent waiver, is no longer acceptable under state constitutional standards and we should, therefore, adopt the three-part test employed by Ninth Circuit.

¶ 17 The Ninth Circuit has established that a waiver of counsel is valid when the court has advised the defendant of "`(1) the nature of the charges against him; (2) the possible penalties; and (3) the dangers and disadvantages of self-representation.'" United States v. Hayes (9th Cir.2000), 231 F.3d 1132, 1136 (quoting United States v. Hernandez (9th Cir.2000), 203 F.3d 614, 624.) Insua concedes that he was advised of the first two elements, but not the third. He argues that he was not warned about the rules regarding proper questioning of witnesses, cross-examination and permissible closing arguments. He maintains that he should have been told that he would be treated the same as any other attorney, that he would be facing an experienced prosecutor, and that he would not be able to remedy errors caused by his own trial performance.

¶ 18 The State argues that the emphasis of the inquiry is not Insua's technical or legal knowledge, but rather his competency to waive his right to counsel, a decision which must be honored. The State, emphasizing our opinion in Colt, which adopted the United States Supreme Court's standards in Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, and our decision in State v. Woods (1997), 283 Mont. 359, 942 P.2d 88, argues that the District Court's colloquy satisfied the Faretta inquiry.

¶ 19 Faretta required that a defendant "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open.'" Faretta, 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d at 581-82 (citing Adams v. United States ex rel. McCann (1942), 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268, 275). In applying the Faretta standard, we have repeatedly held that

a trial court is not required to advise a defendant specifically of the dangers and disadvantages of self-representation as long as the court makes inquiry of the defendant to the extent it deems necessary to ensure that the defendant's waiver of counsel is voluntary, knowing, and intelligent.

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