State v. Swan

• Decision Date: 14 September 2000
• Docket Number: No. 98-568.,98-568.
• Citation: 2000 MT 246,301 Mont. 439,10 P.3d 102
• Parties: STATE of Montana, Plaintiff and Respondent, v. Martin Reed SWAN, Defendant and Appellant.
• Court: Montana Supreme Court

10 P.3d 102

301 Mont. 439

2000 MT 246

STATE of Montana, Plaintiff and Respondent, v. Martin Reed SWAN, Defendant and Appellant.

No. 98-568.

Supreme Court of Montana.

Submitted on Briefs July 20, 2000.

Decided September 14, 2000.

William F. Hooks, Appellate Defender's Office, Helena, Montana, For Appellant.

Honorable Joseph P. Mazurek, Attorney General; Cregg W. Coughlin, Assistant Attorney General; Helena, Montana, Fred R. Van Valkenburg, County Attorney; Kirsten LaCroix, Deputy County Attorney; Missoula, Montana, For Respondent.

Chief Justice J.A. TURNAGE delivered the Opinion of the Court.

¶ 1 Martin Swan was convicted of deliberate homicide, by jury trial in the Fourth Judicial District Court, Missoula County. Swan appeals, arguing that he was denied his right to represent himself at trial. We affirm.

¶ 2 The sole issue on appeal is whether Swan was denied his right under the Sixth and Fourteenth Amendments to the United States Constitution and Article II, Section 24 of the Montana Constitution to waive his right to counsel and represent himself at trial.

¶ 3 Early on the morning of March 1, 1997, the body of 19-year-old Ginny Hann was discovered lying on an ice-covered road near Missoula, Montana. Hann was completely naked except for the socks on her feet and a bra which was pushed up above her breasts. Her pants, shirt, boots, and jacket lay in a pile next to her body. The deputy county coroner determined that Hann had been killed at approximately 5 or 6 o'clock that morning.

¶ 4 Hann was 5 feet 2 inches tall and weighed 101 pounds. The State's medical examiner determined that she had died from asphyxia, and testified at trial that her death could have been caused by smothering. He further testified that physical findings were consistent with her having been overpowered by another person. He noted an injury over the girl's nose, a small abrasion at the corner of her mouth, and a depression in her neck. There were also scrapes and bruises to Hann's shoulder, right hand and wrist, and lower extremities. Vaginal injuries indicated that Hann may have been sexually assaulted within hours of her murder.

¶ 5 Law enforcement investigators learned that shortly after midnight on March 1, Hann had driven from her Missoula apartment to the K-Mart parking lot where, by prior arrangement, Martin Swan picked her up. Swan's neighbors joined the two of them at Swan's apartment until about 2 a.m., when they left Hann and Swan alone. In response to questions by law enforcement officers later that afternoon, Swan claimed that Hann had driven to his apartment in her own car and that she had left his apartment shortly after the neighbors went home. However, officers discovered Hann's car still parked in the K-Mart parking lot.

¶ 6 Swan weighed 390 pounds and wears size 14W shoes. A shoe print found in the snow-packed roadway near Hann's body was consistent in size and tread design with the athletic shoes worn by Swan the night of Hann's murder.

¶ 7 Serological analysis of swabs taken from Hann's breast showed a high level of amylase, indicating the presence of saliva. Testing revealed a mixed DNA sample consistent with the DNA of Hann and Swan. Hairs found on Hann's nude body and on the sheet used to transport it to the crime lab were consistent with Swan's hair. Fibers found near and on Hann's body were consistent with carpet fiber in Swan's vehicle. Cheetos-type food chips were found in Hann's pubic hair and in the clump of fibers found next to her body, and a popcorn hull was tape-lifted from her bra. Investigators discovered bits of food chips, including Cheetos-type chips, on the carpet of the rear floor of Swan's vehicle. Popcorn hulls were also found in Swan's vehicle.

¶ 8 On March 20, 1997, the State of Montana charged Swan with the deliberate homicide of Ginny Hann. Swan pled "not guilty." Although he was provided appointed counsel, Swan wrote a letter to the presiding judge in May, asking permission to be allowed to use the law library to assist in his defense. At an omnibus hearing, Swan's counsel advised the court that she had no problem with her clients having access to the law library, but that she did have a problem with her clients filing motions before the courts pro se. The court denied Swan's request to be allowed to use the law library, and advised him that he could either have court-appointed counsel or represent himself, but he could not have it both ways.

¶ 9 Swan then filed a pro se "Motion to Dismiss Court-Appointed Counsel," in which he made several complaints about the effectiveness of his court-appointed attorney. He asserted that he "could be of more assistance to aide [sic] in his own defense if he was granted use of the law library." Swan asked to be allowed to proceed pro se with authority to use the law library, but added that if the court "deems that an attorney be assigned to this case," that his attorney "be dismissed and that new counsel be assigned as co-counsel and be there for advice, and to ensure proper court guidelines are followed."

¶ 10 At a July hearing, the court said it had received Swan's motion. The court pointed out that only experienced counsel may be appointed in homicide cases. The following colloquy then ensued:

THE COURT: How do you expect to represent yourself in a homicide case?

SWAN: Actually, Your Honor, what I was hoping for was that different counsel would be appointed and that I-I also had access to the law library in my own defense.

THE COURT: Well, number one, if you want an attorney to represent you, you received that attorney that is appointed by the Court.

Number two, if you're represented by an attorney, you do not have access to the law library. You get primarily one or the other.

If you proceed on your own, you're going to be held to the same standards that an attorney would be held. Now, if you want access to-Primarily, you'll be given limited access to a law library, but you'll not be represented by an attorney. Do you understand that?

SWAN: Yes.

THE COURT: Do you want to represent yourself?

SWAN: Yes, I do.

The court then asked Swan's attorney for her comments. After stating she did not think Swan was capable of representing himself, she enumerated some of Swan's litany of complaints about her and what she had done to address those complaints.

¶ 11 The court and Swan next discussed Swan's complaints that the court was prejudiced against him and that the Information against him had not been read aloud in open court. The court read the Information aloud, then stated that it did not feel it had a prejudice against Swan and refused to recuse itself. The court also refused to allow Swan to proceed pro se. It stated that because of the nature and seriousness of the offense, experienced counsel was needed, and that it did not find that Swan was being denied any constitutional rights or receiving ineffective assistance of counsel. Finally, the court denied Swan's requests to be allowed to use the law library and to have other counsel appointed to represent him.

¶ 12 At an October arraignment, Swan was charged on an amended Information, in the alternative, with deliberate homicide via felony murder (while committing or attempting to commit sexual intercourse without consent). Attorneys Larry Mansch and Mark McLaverty appeared at that hearing on Swan's behalf. They advised the court that they had been substituted for Swan's former counsel and were now representing him. Swan pled "not guilty" to the amended charge.

¶ 13 Later that month, Swan and his counsel appeared in District Court to request a continuance of the trial date. Over the State's objection, the trial was continued until January 1998. Attorney Mansch then brought to the court's attention Swan's continuing wish to be allowed access to the law library at the jail, and his counsel's lack of objection to that. Mansch assured the court that all motions filed by the defense would be filed through counsel. The court removed the restriction prohibiting Swan from using the law library.

¶ 14 A jury trial was held on May 1 to May 12, 1998. The jury returned a unanimous verdict finding Swan guilty of deliberate homicide as originally charged. He was sentenced to a life term at Montana State Prison, without the possibility of parole. Swan appeals.

Discussion

¶ 15 Was Swan denied his right under the Sixth and Fourteenth Amendments to the United States Constitution and Article II, Section 24 of the Montana Constitution to waive his right to counsel and represent himself in these proceedings?

¶ 16 The Sixth and Fourteenth Amendments to the United States Constitution and Article II, Section 24 of the Montana Constitution guarantee an accused the right to the assistance of counsel. This right, however, "does not prohibit a defendant from rejecting the assistance of counsel." State v. Weaver (1996), 276 Mont. 505, 511, 917 P.2d 437, 441. A person charged with a crime has the constitutional right to proceed pro se. State v. Woods (1997), 283 Mont. 359, 372-73, 942 P.2d 88, 96; Faretta v. California (1975), 422 U.S. 806, 819, 95 S.Ct. 2525, 2532, 45 L.Ed.2d 562, 572.

¶ 17 An accused who represents himself relinquishes many of the benefits associated with the right to counsel. For that reason, in order to represent himself, the accused must knowingly and intelligently forego those benefits. Faretta, 422 U.S. at 835, 95 S.Ct. 2525. Courts indulge in every reasonable presumption against waiver of the right to counsel. See Brewer v. Williams (1977), 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424, 440. This Court has stated that before a court may grant a request for self-representation, it must first determine that the defendant's waiver of the right to counsel is unequivocal, as well as voluntary, knowing, and intelligent. State v. Langford (1994),...