State v. Khongwiset

• Decision Date: 25 August 2020
• Docket Number: DA 18-0356
• Citation: 401 Mont. 142,471 P.3d 51,2020 MT 215
• Parties: STATE of Montana, Plaintiff and Appellee, v. Cindi E. KHONGWISET, Defendant and Appellant.
• Court: Montana Supreme Court

401 Mont. 142

471 P.3d 51

2020 MT 215

STATE of Montana, Plaintiff and Appellee,

v.Cindi E. KHONGWISET, Defendant and Appellant.

DA 18-0356

Supreme Court of Montana.

Submitted on Briefs: May 27, 2020

Decided: August 25, 2020

For Appellant: William F. Hooks, Law Office of William F. Hooks, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Damon Martin, Assistant Attorney General, Helena, Montana, Steve Eschenbacher, Lake County Attorney, Benjamin Anciaux, Deputy County Attorney, Polson, Montana

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Cindi Khongwiset appeals following a conviction in Montana's Twentieth Judicial District Court for assault with a weapon, a felony, in violation of § 45-5-213, MCA. We affirm.

¶2 We restate the issue on appeal as follows:

Whether the District Court conducted an adequate inquiry into Khongwiset's request to substitute counsel.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On May 6, 2017, Judith Bromley was walking along an access road from Khongwiset's neighbor's property back to her own residence. Khongwiset and her mother, Linda Eakin, confronted Bromley, telling her to get off the road. Khongwiset had a pellet gun which looked like a real gun. Bromley reported that Khongwiset threatened to shoot her.

Two Lake County Sheriff's Deputies, Joel Diaz and Daniel Yonkin, arrived on the scene after a 911 call. Khongwiset admitted to Diaz and Yonkin that she had the gun, that she intended to shoot Bromley, and that the gun was loaded with a pellet.

¶4 On June 5, 2017, the State filed an Information in District Court, charging Khongwiset with assault with a weapon. The Office of the Public Defender ("OPD") assigned Jeff Wilson to be Khongwiset's counsel. On June 28, 2017, Khongwiset signed an acknowledgment of rights which stated that her attorney informed her that a lesser-included offense may apply. A note on the signed acknowledgment provides "misdemeanor assault may be a lesser-included of Assault with a Weapon." Khongwiset's trial was set for December 4, 2017.

¶5 On September 29, 2017, the OPD filed a Notice of Substitution of Counsel, informing Khongwiset that Ashley Morigeau was replacing Wilson after the OPD granted Wilson's request for transfer to Missoula. On October 13, 2017, Khongwiset filed an unopposed motion to continue the trial to allow Morigeau adequate time to prepare. The court granted the motion and reset the trial date for March 5, 2018.

¶6 On February 6, 2018, the court held a hearing to address outstanding motions. At the beginning of the hearing, Khongwiset addressed the court directly and requested to fire Morigeau for "purposeful misrepresentation." Khongwiset stated that she had "been requesting for crucial evidence to be submitted on my behalf and other crucial evidence that is being purposefully omitted from trial, which I believe are very necessary for [the court] to see." In response, Morigeau explained to the court that Khongwiset had not wanted to meet with her that day so she was not able to tell Khongwiset that a new attorney, Sam Newton, had been assigned to her case, or discuss with Khongwiset that the evidence she wished to submit "would be more damaging to her case to enter than to not." Morigeau stated that Khongwiset disagreed with those tactical decisions, but that tactical decisions "are the attorney's decisions to make." The court agreed, stating that matters of tactics fall within the attorney's role but noted that "new counsel is going to be substituted in very soon."

¶7 Newton, Khongwiset's new substitute counsel, appeared and told the court that he would be unavailable beginning March 8, three days after trial was set to begin. Newton also explained that he would not have a problem continuing the trial date but could "get up to speed" if it needed to be tried quickly. The court confirmed with Newton that the case was set for trial on March 5 or 6. The court stated there was no motion before the court for substitution of counsel and "if the counsel to be substituted would eliminate our ability to go to trial as scheduled, I'm not—probably not going to grant the substitution. The [OPD] needs to find a different attorney rather than one that can't be at trial."

¶8 The District Court returned to the pending motions and determined that it had not heard anything to indicate it could not decide the remaining motions in limine and evidentiary issues before the court. The court also stated "if new counsel wants to present additional motions, I don't see how that can prejudice the defendant's case." Morigeau clarified that there was another trial scheduled ahead of Khongwiset's on March 5, and that if Khongwiset intended to fire her, she must make a formal complaint with the OPD, "unless the Court is prepared to hear that and make a decision on whether I shouldn't be her attorney." Morigeau explained that she did not believe it was the intention of the OPD to appoint Khongwiset a different attorney other than Newton. Morigeau also stated that she was prepared to go forward with the hearing. The District Court then turned to Khongwiset and stated it was important for "[Khongwiset] to address [the court] directly and to state any reasons that she has for requesting a different attorney."

¶9 Khongwiset raised several concerns about the case and Morigeau's representation. First, Khongwiset discussed an apparent issue with the pellet gun that she had in her possession, asserting that there were "property receipts and things, which have been forged and made up by another officer other than the one who discovered the physical property." Khongwiset stated that the issue was that she "can't [be] assure[d] that that's the same weapon in the same condition." The District Court clarified that the issue "goes to the admissibility of that gun and that's going to be determined by the Rules of Evidence based upon whether or not they can establish a foundation. And that's the way it's handled, regardless of who your attorney is." Khongwiset responded, "Right."

¶10 Khongwiset next explained that she believed over 30 seconds were missing from the 911 call, as well as other evidence in the record supporting the fact that she had called for an ambulance for her mother. The District Court asked: "is that something you contend that you—that should be raised but this attorney will not do that?" Khongwiset stated that she had asked Morigeau about the missing evidence. However, Khongwiset then explained that Morigeau did not discover these evidentiary issues and instead, her previous attorney, Wilson, was in the midst of preparing a presentation for the court as to the missing evidence when he was "mysteriously" transferred. The District Court explained to Khongwiset that her previous attorney had left because his request for transfer to Missoula was granted.

¶11 Khongwiset further told the court there were additional issues that her attorney had not raised, including the presence of video camera footage showing that Bromley, the victim, assaulted Khongwiset. The court asked Morigeau if requests were made to retrieve the footage. Morigeau responded that she had attempted to obtain the footage, but it was erased and she did not believe there was anything further she could have done. The court asked Khongwiset if there was anything else Morigeau should have done. Khongwiset replied "I have no idea," but stated that because Morigeau believed the footage was erased, she was not going to put forth the request. Morigeau responded that she was able to produce a record of OPD's request for that footage if necessary.

¶12 The court again asked Khongwiset if she had any other issues with counsel. Khongwiset brought up a witness interview and concerns that charges were not being brought against Bromley for defamation and for making statements that directly conflicted "with everything [Bromley] has made in all of her police reports." Morigeau responded that such information was "cross-examination appropriate." The District Court agreed, acknowledging that a good attorney would be wise to use that information in cross-examination, that it is the attorney's job to decide upon a strategy for trial, and explained to Khongwiset that only a prosecutor, and not her defense attorney, could charge someone.

¶13 Khongwiset also told the court that Morigeau refused to use video evidence of the area where the alleged assault occurred. Morigeau responded that tactically, producing that evidence would not be helpful. The court noted that tactical decisions are at the attorney's discretion. Khongwiset also complained that she was never read her Miranda rights when she was arrested, and counsel had not raised the issue. Morigeau answered that during her first meeting with Khongwiset she told her that an arrest does not necessarily trigger Miranda warnings, but is only prompted upon custodial interrogation. Because Khongwiset intended to testify at trial, Morigeau stated that she did not see the purpose of filing a suppression motion.

¶14 At the conclusion of the inquiry, the court asked Khongwiset if she had expressed all the reasons for seeking to dismiss Morigeau. Khongwiset did not raise any other reasons. The court ruled that none of the reasons raised were grounds for demanding a change in attorneys, so Khongwiset could either continue with this attorney, hire her own attorney, or represent herself.

¶15 The court proceeded with the hearing on the motions in limine and objections to the State's list of proposed witnesses and exhibits. Morigeau interrupted and asked the court to return to the "property receipt issue" regarding the pellet gun. Morigeau explained that Khongwiset raised that issue for the first time when speaking with the court and acknowledged that she never understood that she had a different property receipt other than the one that was provided to her in discovery. Morigeau said she needed to have further discussions with Khongwiset about the issue and whether it...