State v. Rose

• Decision Date: 13 January 2009
• Docket Number: No. 05-129.,05-129.
• Citation: 202 P.3d 749,348 Mont. 291,2009 MT 4
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Appellee, v. Robert Lysle ROSE, Defendant and Appellant.

202 P.3d 749

2009 MT 4

348 Mont. 291

STATE of Montana, Plaintiff and Appellee, v. Robert Lysle ROSE, Defendant and Appellant.

No. 05-129.

Supreme Court of Montana.

Submitted on Briefs October 31, 2007.

Decided January 13, 2009.

Rehearing Denied March 11, 2009.

For Appellant: Chad Wright, Hooks & Wright, P.C., Helena, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, Montana, George Corn, Ravalli County Attorney, Hamilton, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 Robert Rose appeals from his 2003 convictions for aggravated kidnapping, assault with a weapon and assault on a peace officer. Rose was found guilty by a jury and judgment entered on June 6, 2003. He appealed and this Court remanded to the District Court to enter findings of fact and conclusions of law relating to the denial of Rose's motion to dismiss for lack of a speedy trial.

¶ 2 After remand, the District Court held a two day evidentiary hearing on Rose's speedy trial claim and subsequently entered findings of fact, conclusions of law and an order again denying his motion to dismiss for lack of speedy trial. We restate and consider the several issues Rose raises on appeal as follows:

¶ 3 1) Did the District Court err in denying Rose's motion to dismiss for lack of a speedy trial?

¶ 4 2) Did the District Court err when it failed to hold a hearing on Rose's complaints of ineffective assistance of counsel?

¶ 5 3) Did the District Court abuse its discretion in denying Rose's motion for a new trial on the basis that the prosecutor's statements during the State's closing argument denied Rose a fair and impartial trial?

¶ 6 4) Was Rose's trial counsel ineffective before she was removed, thus requiring a mistrial?

FACTUAL BACKGROUND

¶ 7 Rose was arrested on January 11, 2002, in Ravalli County following an incident in which he kidnapped a friend and co-worker, Jonathan Kirk Davies at knife point, badly cutting Davies when he tried to escape. Both Rose and Davies required medical attention. Later, upon his release from the hospital, Rose obtained pepper spray inadvertently left in the back of a patrol car and sprayed a law enforcement officer with it when in the Ravalli County Detention Facility.

¶ 8 The odyssey which occurred between Rose's arrest on January 11, 2002, and his eventual trial which commenced 507 days later, on June 2, 2003, is summarized here as it relates to Rose's claim that he was denied a speedy trial and his claim that he was denied a hearing to address his complaints about his lawyers.

¶ 9 The day after his arrest on January 11, a complaint was filed in the Ravalli County Justice Court charging Rose with aggravated kidnapping, assault with a weapon and assault on a peace officer. On January 23, the State filed an information charging Rose with these same felony offenses in District Court.

¶ 10 On February 6, Rose made his initial appearance in District Court with court-appointed counsel, Larry Mansch. When asked if the defense needed further time to enter a plea, Mansch said, "We do, your Honor. We received about 160-some pages of discovery just the other day, and I know that Robert would like more time to review that, so we'd like to reappear next Wednesday, if I could, please." On Wednesday, February 13, Rose appeared with counsel and entered not guilty pleas. The District Court set an Omnibus Hearing for March 6. At the Omnibus hearing, defense counsel noted Rose's desire to move for a change of venue, and asked for additional time to pursue that option. The court gave the defense until March 27, 2002, to file the motion and stated: "Then it will be on the standard schedule." The court set a status conference for April 10 and a settlement conference for April 18, 2002.

¶ 11 At the April 10 status hearing, Rose appeared with counsel and requested a continuance of the April 18 settlement conference. The State, represented by Ravalli County Attorney George H. Corn, objected. Corn predicted that Rose would later raise speedy trial problems and requested to proceed to trial with all haste. The District Court granted Rose's motion to postpone the settlement conference until May 2, 2002.

¶ 12 On April 17, the District Court received the first of several letters from Rose complaining about his legal representation by Mansch. On April 18, the District Court scheduled a special hearing for April 24 to inquire about Rose's complaints. The day before the hearing, the court received another letter from Rose, retracting his complaints against Mansch. Rose then appeared at the hearing on April 24 along with Mansch. He personally advised the court that he was satisfied with his counsel and there was no need for a further hearing on the matter.

¶ 13 On May 6, the court received another letter from Rose saying he regretted stating in court that he was satisfied with Mansch. On May 30, Mansch, who received Rose's letters only after the court forwarded copies of them to him, wrote the court saying Rose's letters to the court had not affected his representation and he was unwilling to step down from the case.

¶ 14 On June 6, Rose sent another letter to the court saying he was far from happy or satisfied with Mansch's assistance. Rose also asked to represent himself pro se until he could retain private counsel or until he was appointed different counsel.

¶ 15 At a status hearing on June 12, Mansch told the court that Rose's letters to the court had not compromised his representation of Rose. The State, again desiring the proper procedure be followed concerning Rose's off again on again complaints about his lawyer and wishing to avoid speedy trial issues, asked the District Court to inquire about the letters written by Rose complaining about his lawyer, and noted that the trial was set to take place in less than two months. The judge asked Rose to state the reasons why he was dissatisfied with Mansch's representation and explained that only then could the court determine if there was a substantial basis for Rose's dissatisfaction. The judge explained that only if there was a valid basis for Rose's complaints, would the court hold a full hearing to determine if Mansch should be replaced. The following exchange then took place:

Rose: Your Honor, I was wondering if we could maybe postpone this issue until a further time when we can meet with Mr. Corn and discuss some things, and if I still feel there's a problem, could I address the Court at that time.

State: ... I'll rearrange my schedule and make sure we get it done. I think I want the record to reflect that this is done on Mr. Rose's request. There could be a speedy trial issue, and I don't want that to be on the State's hook, so that's my concern.

Court: So we'll continue this hearing then until June 19th at 9:00 on request of the Defendant.

¶ 16 On June 19, 2002, a status hearing was held at which Corn said that the State would press ahead and assumed the trial would be held on July 31. By that time, Rose had sent yet another letter to the court regarding Mansch's representation. The State asked that Rose decide whether or not he wanted to proceed with Mr. Mansch, noting he signed no waiver of a speedy trial. The judge asked Rose if it was his wish to have a different attorney, Rose replied, "Yes, I think I would, because things have not run smoothly."

¶ 17 The District Court specifically told Rose that if a new attorney was assigned to represent him, it would mean the trial would probably be postponed for weeks or even months. Mansch noted that Rose continuously complained about his representation and indicated his willingness to step aside. The District Court, noting it would save time, dismissed Mansch and appointed another attorney, Mr. Dustin Gahagan to represent Rose. The prosecutor, Mr. Corn, made no objection, noting the trial was still scheduled for July 29.

¶ 18 On July 11, 2002, the defense filed a motion to continue the July 29 trial. Attached to the motion was a handwritten waiver of speedy trial signed by Rose. Reasons cited for requesting the continuance were counsel Gahagan had not been on the case very long, was extremely busy, and needed additional time to prepare the defense. Rose sent a letter to the District Court on July 13, 2002, requesting postponement of the July trial saying he had hoped not to have to waive his right to a speedy trial but due to the lack of preparation by present counsel, he was left with no other option.

¶ 19 Six days later, Gahagan moved to substitute a different attorney as counsel for Rose due to the change in the public defender contract with Ravalli County. On July 22, 2002, the District Court appointed Kelli Sather as Rose's attorney. The District Court granted Rose's motion for further delay caused by his request for a different lawyer and reset the trial for November 18, 2002.

¶ 20 On October 25, 2002, less than one month before the November trial date, the defense filed a motion for a psychological exam. Three days later, the State filed a motion requesting that the trial proceed as scheduled on November 18. That same day, Rose appeared in court with Sather. Rose told the court he was interested in proceeding pro se but did not have a chance to talk to counsel about it enough yet. Sather reiterated the request for a psychological evaluation. The State reiterated its request that trial proceed as scheduled and any delay be attributed to the defense. The court advised Rose an evaluation would further delay trial and asked if he understood. Rose advised the court he understood. The court granted the motion for a psychological evaluation and advised a new trial date would be set after the evaluation was received. Rose requested to proceed pro se with consultation from Sather and the court postponed any decision on that matter until completion of the psychological examination.

¶ 21 On January 31, 2003, Rose wrote to the...