State v. Kaske

• Citation: 47 P.3d 824,2002 MT 106,309 Mont. 445
• Decision Date: 21 May 2002
• Docket Number: No. 00-865.,00-865.
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Respondent, v. Arthur Paul KASKE, Defendant and Appellant.

47 P.3d 824

309 Mont. 445

2002 MT 106

STATE of Montana, Plaintiff and Respondent, v. Arthur Paul KASKE, Defendant and Appellant.

No. 00-865.

Supreme Court of Montana.

Submitted on Briefs January 10, 2002.

Decided May 21, 2002.

Kristina Guest, Appellate Defender Office, Helena, Montana, For Appellant.

Mike McGrath, Attorney General; Jim Wheelis, Assistant Attorney General, Helena, Montana, Fred Van Valkenberg, Missoula County Attorney, Missoula, Montana, Karen S. Townsend, Deputy County Attorney, Missoula, Montana, For Respondent.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 The State of Montana charged Arthur Paul Kaske with criminal possession of dangerous drugs. A jury subsequently convicted Kaske of possession, but Kaske failed to appear at the sentencing hearing. The Fourth Judicial District Court, Missoula County, later granted a motion for a new trial and the State filed an Amended Information, adding a charge of bail jumping. Before the new trial, the District Court denied a request by Kaske to replace his lawyer. A jury found Kaske guilty of both possession and bail jumping. Kaske appeals the court's denial of his request for a new lawyer and the conviction of bail jumping. We affirm.

¶ 2 The following issues are dispositive of this appeal:

¶ 3 1. Did the State present sufficient evidence to prove that Kaske had been set at liberty by a court order upon the condition that he subsequently appear at a specific time?

¶ 4 2. Did the District Court err in not appointing Kaske substitute counsel?

BACKGROUND

¶ 5 On February 3, 1994, the State of Montana charged Kaske by Information with Felony Criminal Possession of Dangerous Drugs. A public defender, J. Dirk Beccarri, was assigned as Kaske's counsel. On April 19, 1994, Kaske appeared before the District Court and complained that Beccarri's representation dissatisfied him. The court ordered that Beccarri withdraw as counsel, and the public defender's office appointed William Boggs as Kaske's new counsel. A jury convicted Kaske on September 29, 1995. The District Court set sentencing for November 7, 1995.

¶ 6 On October 24, 1995, Boggs filed a motion for a new trial. After Kaske did not appear for the sentencing hearing on November 7, the court issued a bench warrant. On February 8, 1996, the court granted Boggs' motion for a new trial and set a status conference for August 13, 1996. Kaske failed to appear at either that status conference or the following one on February 4, 1997.

¶ 7 Authorities apparently arrested Kaske in New York on March 16, 1999, and extradited him to Montana. On December 21, 1999, the State filed an Amended Information, which added a charge of bail jumping. At the next hearing, on December 28, 1999, Kaske objected to Boggs' representation, stating that Boggs was neither making the proper effort on his behalf nor discussing certain details of the case with him. In addition, the State noted that it might call Boggs as a witness on the bail jumping charge. On these bases, the District Court relieved Boggs as Kaske's counsel and directed that another public defender be appointed to Kaske.

¶ 8 On January 4, 2000, the court continued Kaske's arraignment until January 18, 2000, because Kaske's new public defender, Margaret Borg, had not yet received Kaske's file from Boggs. A deputy public defender appeared at the January 18 hearing to explain that Borg still had not received Kaske's file. At that hearing, Kaske expressed concerns regarding Borg's representation. Kaske complained that Borg would not discuss certain topics that he thought were important and would not allow him to file documents without her permission. He also stated that Borg's "social agenda" and "anti-drug campaign" were interfering with her ability to defend him.

¶ 9 On February 1, 2000, Kaske again appeared in court, this time with Borg. He pled not guilty to the bail jumping charge and the court set an omnibus hearing for February 22, 2000. At the omnibus hearing, Kaske reiterated his displeasure with Borg's representation and asked the court to replace her with another public defender. Kaske complained that Borg was not pursuing exculpatory evidence, that he had not been supplied with depositions and that the Information was based on hearsay. He also complained that he could not afford to make copies of legal documents at the county jail, which interfered with his ability to work on a discovery motion he was developing. Kaske informed the court that he was also working on a motion to be co-counsel in his own defense.

¶ 10 Judge Henson told Kaske that he could either continue with his present counsel or have the court dismiss her and continue pro se. Kaske expressed his wish to have the court replace Borg. Judge Henson responded that he would make an initial inquiry into the matter. He then directed Kaske to file his complaint against Borg with the court and noted that Borg would have a chance to respond.

¶ 11 On March 21, 2000, the court held a hearing regarding Kaske's complaint against Borg. At the time of the hearing, however, Kaske had not yet filed his complaint. He first explained that he did not realize he needed to make copies of his complaint. Later he complained that the detention facility would not allow him to make copies. Judge Henson told Kaske that he would still have to file a copy with the court if he wished to proceed with his claim of ineffective assistance of counsel. After the hearing, Kaske filed his complaint against Borg with the court.

¶ 12 During the same hearing, Kaske also asked to submit a petition for habeas corpus, but Judge Henson declined to accept it so long as Borg continued to represent him. Kaske then requested that he be provided with depositions supporting the Amended Information. The court responded that no depositions existed. It noted, however, that there was an affidavit that supported the motion to file the Amended Information.

¶ 13 Next, Kaske complained that his former counsel, Boggs, had made an extended effort to deny him access to documents. He also stated that Borg would not disclose exculpatory evidence to him. Borg responded that she did not believe that the evidence Kaske was asking for existed. Kaske repeated, however, that "there's exculpatory evidence out there that needs to be addressed."

¶ 14 At the court's request, the prosecutor explained that his office had a statutory and professional duty to disclose evidence to the defense. Therefore, the defense always had access to the State's evidence, including all exculpatory evidence. Kaske nevertheless insisted that the "District Attorney is trying to deny the Defense exculpatory evidence for the sake of developing a defense."

¶ 15 The court ordered complete and continuing discovery of all exculpatory evidence, but Kaske questioned whether he was "going to be denied that exculpatory evidence, because my counsel will not give me any documents." After further discussions, Borg explained that it was early in the process and more information was likely to come forward. Furthermore, she noted that part of her difficulty with Kaske's requests stemmed from their disagreements on what was relevant, pertinent or appropriate.

¶ 16 After a discussion with the court about whether there was going to be a separate trial, Kaske stated that he had "some pretrial motions that I would like to file sometime in the future pertaining to specific exculpatory defense." The court again noted that, so long as Borg represented Kaske, it would only accept motions that Borg filed. Kaske responded that, although he was unwilling to waive his right to counsel, he did not want Borg to represent him. Borg agreed to provide Kaske with any documents that existed but noted that "I cannot give him copies of something that he imagines or would like." Kaske maintained that the documents existed and that Borg had not given him "one iota of documentation."

¶ 17 On April 11, 2000, the court held another hearing regarding Kaske's complaints against Borg, and Borg filed her response to Kaske's complaints with the court. At the hearing, the court explained that Montana law required it to conduct an initial inquiry, to consider the specific complaints along with counsel's explanations and then to reach a conclusion. Kaske then told the court that he had a petition for habeas corpus he wished to file, along with a Section 1983 civil action. He also asked for a continuance "until I get a response from the Court" and noted that "if things haven't come to a certain conclusion within the next 30 days, I would seriously consider waiving my right to counsel and go ahead and proceed pro se."

¶ 18 On April 27, 2000, the court ruled on Kaske's motion. It held that Borg's representation had been adequate and denied Kaske's motion for a new attorney. The court wrote that Kaske could choose to continue with Borg, hire outside counsel or proceed pro se.

¶ 19 At the next hearing, on May 9, 2000, Kaske chose to proceed pro se. He explained that, while he did not wish to waive his right to counsel, he would not allow Borg to represent him "as long as she's going to maintain the attitude that she has in the past." Kaske also noted that he was preparing a complaint for the Commission on Practice, had filed a petition for a writ of habeas corpus with this Court and had filed a Section 1983 civil action in federal court. He then asked for a "legal advisor," which the court declined to provide. Kaske disagreed with the court's interpretation of the situation and said he would prefer that Judge Henson disqualify himself because of his bias, which he would also explain to the Commission on Practice. After proceeding with the omnibus hearing and setting forth a briefing schedule, the court again warned Kaske of the perils of proceeding pro se.

¶ 20 On May 16, 2000, Kaske repeated his desire to continue without Borg as his lawyer. The court then appointed Borg as stand-by counsel. Borg turned...