State v. Mann, 04-137.
| Decision Date | 13 July 2006 |
| Docket Number | No. 04-137.,04-137. |
| Citation | 139 P.3d 159,332 Mont. 476,2006 MT 160 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Errol MANN, Defendant and Appellant. |
| Court | Montana Supreme Court |
Chad Wright, Appellate Defender Office, Helena, for Appellant.
Mike McGrath, Attorney General; Jim Wheelis, Assistant Attorney General, Helena, Brant Light, Cascade County Attorney; Susan L. Weber, Deputy County Attorney, Great Falls, for Respondent.
¶ 1 A jury convicted Errol Mann (Mann) of burglary and two counts of misdemeanor assault following a two-day trial in the Eighth Judicial District Court, Cascade County. He asserts on appeal that the District Court violated his fundamental constitutional right to be present and appear at all criminal proceedings. Mann also alleges ineffective assistance of counsel based on the jury instructions his appointed counsel, John Keith (Keith) offered.
¶ 2 We rephrase the issues on appeal as follows:
¶ 3 1. Whether the District Court violated Mann's constitutional right to appear at all criminal proceedings against him when the court excluded him from a pre-trial meeting that addressed Mann's allegations of ineffective assistance of counsel, Mann's request to represent himself, and Keith's perceptions of his client.
¶ 4 2. Whether Keith's decision to request jury instructions for the lesser included offenses charged deprived Mann of the right to effective assistance of counsel.
¶ 5 Police arrested Mann following an incident at a private residence in Great Falls. Mann remained in a house where he had formerly lived, despite being asked to leave repeatedly. The two female residents told police that Mann threatened them with a small caliber pistol while he remained in their home. The State charged Mann with aggravated burglary and two counts of assault with a weapon. Mann entered a plea of not guilty, and the case proceeded to trial.
¶ 6 Cascade County Public Defender Megan Lulf (Lulf) first represented Mann but later cited a conflict and withdrew. The court substituted Keith to represent Mann. Mann informed the court immediately prior to the trial's outset, however, that he was dissatisfied with Keith's performance. The court inquired further and determined that no grounds to substitute counsel existed. Mann then announced that he would rather represent himself than proceed with Keith as his attorney. The court informed Mann of the risks he would assume should he choose to represent himself. Mann insisted that he was determined to proceed without counsel. The court then excused Mann from the meeting, and continued the discussion concerning Mann's representation with Keith and the State on the record, addressing whether the District Court would permit Mann to proceed pro se.
¶ 7 Although the court did not ask Keith to respond to Mann's complaints, Keith proceeded to expound upon Mann's attitude and his own performance as counsel. He informed the court that Mann would never listen to him and stated twice that Mann had called Keith a liar. Keith further offered that Lulf had withdrawn Keith also described the deteriorating relationship between him and his client, and asserted on several occasions that he believed Mann would disrupt the proceedings if the court prevented Mann from representing himself. At the conclusion of this somewhat lengthy discussion, the bailiff returned Mann to the courtroom and, unaware of what transpired outside his presence, Mann changed his mind and elected to proceed with Keith as counsel. The prospective jurors entered the room and voir dire began.
¶ 8 Keith offered instructions on the lesser included offenses of burglary and misdemeanor assault when the parties settled jury instructions at the end of the first day of trial. The jury returned a guilty verdict the next day on these two charges. Judge Neill sentenced Mann as a persistent felony offender to thirty years at the Montana State Prison for burglary and two six-month sentences for the misdemeanor assault charges. The District Court ordered the sentences to run concurrently.
¶ 9 Mann appeals his sentence and conviction, asserting that he was wrongly excluded from a critical stage of the proceedings against him, and that he was deprived of his right to effective assistance of counsel.
¶ 10 A district court's determination of whether a criminal defendant's right to be present at the critical stages of his or her trial is a question of constitutional law. State v. Aceto, 2004 MT 247, ¶ 15, 323 Mont. 24, ¶ 15, 100 P.3d 629, ¶ 15. Our review of constitutional law questions is plenary. Aceto, ¶ 15.
¶ 11 Whether the District Court violated Mann's constitutional right to appear at all criminal proceedings against him when the court excluded him from a pre-trial meeting that addressed Mann's allegations of ineffective assistance of counsel, Mann's request to represent himself, and Keith's perceptions of his client.
¶ 12 The Confrontation Clause of the Sixth Amendment provides a criminal defendant the right to be present at all criminal proceedings against him. Illinois v. Allen (1970), 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353, 356. The Montana Constitution includes express language aimed at protecting this right, providing that, "[i]n all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel...." Article II, Sec. 24, Mont. Const. We have established that the right to appear and defend is a fundamental right which may only be waived through an informed, intelligent, and recorded waiver. State v. Tapson, 2001 MT 292, ¶¶ 15, 28, 307 Mont. 428, ¶¶ 15, 28, 41 P.3d 305, ¶¶ 15, 28; State v. Kennedy, 2004 MT 53, ¶ 29, 320 Mont. 161, ¶ 29, 85 P.3d 1279, ¶ 29.
¶ 13 The 1889 Montana Constitution contained language identical to the right to appear and defend provision found today, and Montana case law has historically reflected the importance this state places on such rights. In one of its first opportunities to address the right to appear and defend clause, found at that time in Article III, Section 16, this Court stated that "the defendant must be present throughout the entire trial." State v. Reed (1922), 65 Mont. 51, 56, 210 P. 756, 757 (emphasis added). We added further that the defendant has a legal right to be present "when the jury are hearing his case, and at all times during the proceeding of the trial, when anything is done which in any manner affects his right. ..." Reed, 65 Mont. at 58, 210 P. at 758 (emphasis added). We then stated over forty years later that a defendant's Article II, Section 24 rights are violated if he "is prevented from attending other proceedings where his presence is essential to a fair and just determination of a substantial issue." State v. Schenk (1968), 151 Mont. 493, 500, 444 P.2d 861, 864.
¶ 14 In recent years, we have been called upon to determine whether various situations in which the accused has been excluded from trial proceedings have resulted in a violation of a defendant's constitutional rights. For example, we concluded that the district court violated the defendant's rights when it excluded the defendant and his counsel from an in-chambers voir dire. State v. Bird, 2001 MT 2, ¶ 40, 308 Mont. 75, ¶ 40, 43 P.3d 266, ¶ 40. We also concluded a violation occurred when the trial judge entered the jury room during deliberations, Tapson, ¶ 33, and when a judge ordered the defendant removed from the courtroom for the duration of trial without warning, following courtroom outbursts by the defendant. Aceto, ¶ 48.
¶ 15 We have not always concluded, however, that an alleged violation of this constitutional right warrants automatic reversal. Rather, we consider the effect the violation has on the defendant to determine whether the defendant suffered any conceivable prejudice. For example, in Kennedy, we concluded that the district court's act of excluding Kennedy from a private conversation the judge shared with a juror regarding the juror's violation of the court's order to not communicate with trial witnesses, violated Kennedy's right to be present at all critical stages of his trial. Kennedy, ¶ 27. We held nonetheless that the effect of Kennedy's exclusion did not prejudice him in any way, because any opportunity Kennedy missed to question the juror about his alleged misconduct was mooted when the district court removed the juror from the panel and further prevented the witness with whom the juror had contact from testifying at trial. Kennedy, ¶ 34.
¶ 16 On the other hand, we determined in Bird that the violation of Bird's constitutional right to be present warranted automatic reversal when the district court excluded him from an in-chambers voir dire. Bird, ¶ 40. We noted that the purpose of the voir dire was to elicit the prospective juror's personal feelings and experiences regarding domestic violence. The effect of the constitutional violation deprived Bird of the opportunity to hear the juror explain her biases and thus prevented Bird "from knowing about her prejudices and from insisting that defense counsel strike her with a peremptory challenge." Bird, ¶ 28.
¶ 17 Here, by the time the District Court excluded Mann from the pre-trial meeting, it had already conducted the inquiry to determine whether Mann's allegations of ineffective assistance of counsel were substantial, State v. Gallagher, 1998 MT 70, ¶ 15, 288 Mont. 180, ¶ 15, 955 P.2d 1371, ¶ 15, and concluded that since Mann had failed to present "any concrete substantive complaint about counsel," there was no basis to substitute counsel. This left the District Court to determine the question of whether Mann should be allowed to proceed pro se or with Keith as counsel, and it was from this...
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