No. 01-454
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 157N
STATE OF MONTANA,
Plaintiff and Respondent,
v.
WILLIAM CASPAR CRAWFORD,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Katherine R. Curtis and Stewart Stadler, Judges presiding.
COUNSEL OF RECORD:
For Appellant:
Matthew J. Sisler, Missoula, Montana
For Respondent:
Mike McGrath, Montana Attorney General, C. Mark Fowler, Assistant
Montana Attorney General; Thomas J. Esch, Flathead County Attorney,
Edward Corrigan, Deputy Flathead County Attorney, Kalispell, Montana
Submitted on Briefs: January 24, 2002
Decided: July 16, 2002
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be filed as a
public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number, and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 Respondent State of Montana filed an Information in the
Eleventh Judicial District Court, Flathead County, charging
Appellant William Crawford with the felony offenses of criminal
production or manufacture of dangerous drugs and use or possession
of property subject to criminal forfeiture. Prior to trial,
Crawford moved to substitute his court-appointed counsel and the
District Court denied his motion. A jury subsequently convicted
Crawford of both offenses. Following trial, Crawford filed a
“Motion for Mistrial” based, in part, on allegations of ineffective
assistance of his court-appointed counsel. The District Court
denied Crawford’s motion. Crawford appeals the District Court’s
denial of his motion to substitute counsel and his “Motion for
Mistrial.” We affirm.
¶3 We address the following restated issues on appeal:
¶4 1. Did the District Court err when it denied Crawford’s
pretrial motion to substitute his court-appointed counsel?
¶5 2. Did the District Court err when it denied Crawford’s
“Motion for Mistrial” without holding an evidentiary hearing?
2
FACTUAL AND PROCEDURAL BACKGROUND
¶6 On August 22, 2000, the State filed an Information against
William Crawford, charging him with one count of criminal
production or manufacture of dangerous drugs, a felony, in
violation of § 45-9-110(1), MCA, and one count of use or possession
of property subject to criminal forfeiture, a felony, in violation
of § 45-9-206(1), MCA. With the aid of his court-appointed
counsel, Crawford pled not guilty to the offenses on September 7,
2000.
¶7 On October 26, 2000, Crawford’s father filed a motion on
Crawford’s behalf which requested that the District Court “order
the firing of my attorney” as Crawford did not “feel that he can
adequately represent my interests.” Essentially, the motion was
based on ineffective assistance of counsel allegations. The
District Court denied Crawford’s motion on November 16, 2000, and
the case proceeded to trial. On December 21, 2000, a jury found
Crawford guilty of both offenses.
¶8 On December 29, 2000, stemming from a rather acrimonious
attorney-client relationship, Crawford’s attorney filed a motion to
withdraw as counsel for Crawford. The District Court granted the
motion and ordered the chief public defender to appoint new counsel
for Crawford. On January 16, 2001, Crawford’s father filed a
“Motion for Mistrial” on Crawford’s behalf based, in part, on
allegations of ineffective assistance of his previously appointed
counsel. On February 15 and March 1, 2001, during duly reported
probation violation proceedings, the District Court entertained
3
“open discussion regarding the Motion for Mistrial that was filed
by the defendant’s father.” Following the discussion, the District
Court denied Crawford’s motion.
¶9 It is difficult to determine just what issues Crawford
presents for our review. Crawford’s opening brief states that he
“is appealing the lower court’s convictions of criminal production
of dangerous drugs and use or possession of property subject to
criminal forfeiture against him, alleging ineffective assistance of
counsel.” This statement, as well as other passages in Crawford’s
brief, appear to raise an ineffective assistance of counsel claim
on direct appeal. However, he frames the issue on appeal as
“Whether [the] lower court erred by failing to hold an evidentiary
hearing regarding William’s motion for mistrial (motion for
ineffective assistance of counsel) and by denying William’s motion
to dismiss his court appointed attorney, when counsel rendered
ineffective assistance to William Crawford.” In accordance with
Crawford’s stated issue for review, we presume that Crawford
appeals the District Court’s denial of his pretrial motion to
substitute, and the denial, without hearing, of his “Motion for
Mistrial.”
STANDARD OF REVIEW
¶10 It is within the sound discretion of a district court to rule
on requests for substitution of appointed counsel and we will not
disturb such a ruling absent an abuse of discretion. State v.
Gallagher, 2001 MT 39, ¶ 4,
304 Mont. 215, ¶ 4,
19 P.3d 817, ¶ 4.
A district court’s determination of whether to grant a motion for a
mistrial must be based on whether the defendant has been denied a
4
fair and impartial trial. Harding v. Deiss, 2000 MT 169, ¶ 19,
300
Mont. 312, ¶ 19,
3 P.3d 1286, ¶ 19. We review a grant or denial of
a motion for mistrial to determine whether the district court
abused its discretion. Harding, ¶ 19. In evaluating discretionary
rulings, we consider whether the district court acted arbitrarily
without employment of conscientious judgment or exceeded the bounds
of reason resulting in substantial injustice. Gallagher, ¶ 4.
DISCUSSION
ISSUE 1
¶11 Did the District Court err when it denied Crawford’s pretrial
motion to substitute his court-appointed counsel?
¶12 Crawford contends that “[w]hen the court denied his motion and
forced [him] to be represented by [the court-appointed attorney],
[his] rights to due process of law were substantially and adversely
affected, as the actions and inactions of [his] court appointed
attorney resulted in prejudice to [him] . . . .” However, Crawford
does not expand on how the District Court erred when it denied his
pretrial motion or offer any authority in support of this
assertion. Crawford simply recites a laundry list of purported
representational inadequacies in an attempt to document his
ineffective assistance of counsel allegation.
¶13 The Sixth Amendment to the United States Constitution and
Article II, Section 24 of the Montana Constitution guarantee a
criminal defendant the right to the assistance of counsel. The
right to counsel is fundamental and applies with equal force to all
persons, regardless of their ability to compensate an attorney.
City of Billings v. Smith (1997), 281 Mont. 133, 136,
932 P.2d
5
1058, 1060. A district court should substitute counsel if it
appears that failure to do so would substantially impair or deny
the defendant’s constitutional right to the assistance of counsel.
State v. Weaver (1996),
276 Mont. 505, 511,
917 P.2d 437, 441.
¶14 In the event that a criminal defendant presents a “seemingly
substantial complaint” regarding the effectiveness of counsel, the
court should conduct a hearing to address the merits of the
defendant’s claims and the request for substitution of counsel.
State v. Gallagher,
1998 MT 70, ¶ 14,
288 Mont. 180, ¶ 14,
955 P.2d
1371, ¶ 14. In determining if the defendant presented a seemingly
substantial complaint about counsel, the district court must make
an adequate inquiry into the defendant’s complaints. Weaver,
276
Mont. at 511,
917 P.2d at 441. We have recognized that such an
initial inquiry may be adequate where the court “considered the
defendant’s factual complaints together with counsel’s specific
explanations addressing the complaints.” City of Billings,
281
Mont. at 136-37,
932 P.2d at 1060. If, after an adequate initial
inquiry, the court concludes that the defendant has failed to
present seemingly substantial complaints, it need not conduct a
hearing on the merits. See City of Billings,
281 Mont. at 141,
932
P.2d at 1063. On appeal, the threshold issue in determining
whether a substantial complaint exists is “not whether counsel was
ineffective, but whether the District Court erred in failing to
make an adequate inquiry into [a defendant’s] claim of ineffective
assistance of counsel.” Weaver,
276 Mont. at 511,
917 P.2d at 441.
¶15 Crawford filed his “Motion to Fire My Attorney” on October 26,
2000. In the motion, Crawford expressed dissatisfaction with the
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purportedly nonexistent communication between he and his attorney
and a general distrust for his court-appointed counsel. On
November 16, 2000, the District Court held a status hearing for the
case, at which time it addressed Crawford’s motion.
¶16 At the status hearing, the District Court, Crawford, and
Crawford’s attorney engaged in the following discussion:
District Court: Mr. Crawford’s father filed a motion
with regard to his continued – his son’s continued
representation by you.
Crawford’s attorney: There are several things about
the case that he’s dissatisfied about. There is some
information he’s requested that we don’t quite have yet.
We don’t have the crime lab report back yet. . . .
There are some search issues that Mr. Crawford has
that he would like to have a hearing on, and I believe
what we would have to probably do then is potentially
expedite a suppression hearing and motion so those
matters could be fully heard.
He’s got some grave concerns about the way the
search was carried out, some concerns about whether it
was done properly, whether a warrant was served properly,
and he hasn’t gotten adequate answers to those yet, and
I’m not sure that we have got all the information that we
need to get those answers. We’re working on that at this
time.
. . . .
. . . He was concerned that – as you can see in his
motion, that the preliminary was waived without his
specific acknowledgment of that. That is probably
correct. This case had absolutely no reason to have a
preliminary hearing, so I didn’t have a preliminary
hearing.
The omnibus form I filled out . . . . [Crawford] was
upset that he was not able to do that with me . . . . I
did explain to him that that was not a hearing, as such,
because we don’t hold those in that fashion, but that it
is a form that is filled out by counsel . . . . He was
given [a] copy of that when it was done . . . .
. . . I’m prepared to carry on with the case and
continue with it and do what needs to be done.
7
Crawford: I mean I have been here almost six months
. . . . He’s waived everything; I have not waived
anything. He just told me about ten minutes ago that
he’s not going to file any motions or anything on my
search warrant because he believes that it was true and
valid.
. . . .
He has yet to sit down and go through any of my
paperwork with me. He will tell me what is going to go
on ten minutes before it goes on. If that’s justice in
this country, I want out of it. This is not right.
Crawford’s attorney: I didn’t tell him that I
wouldn’t file motions. I certainly discussed what I feel
the merit of his various concerns are with him . . . .
But that certainly does not mean, regardless of whether I
might feel merit-wise whether a motion might be
successful or not, that we will not pursue that motion.
I didn’t tell him I wouldn’t file motions on his
behalf. We have discussed whether I think they will be
successful, as we do with all our clients.
District Court: [C]an you sit down with Mr. Crawford
for a lengthy period of time between now and next
Wednesday and go over his paperwork with him and discuss
his case with him?
Crawford’s attorney: Yes, I certainly can, Judge.
. . . .
District Court: I’m not going to grant your father’s
motion to fire your attorney. I’m going to and have
requested [your attorney] to sit down for a lengthy
period of time and go over your case with you between now
and next Wednesday.
. . . .
Your lawyer has the obligation to learn from you what he
needs to know about the case, and to analyze it within
the context of the law – which only he knows, not you –
and to make a determination as to whether it’s a
potentially well-taken motion or not. And he has an
obligation to his profession and to the Court to not file
that motion if he thinks it’s not well-taken. Okay? So
that’s the line that [your attorney] has to walk, all
right?
8
. . . .
Okay. I believe – at least I don’t see anything at
this point that suggests to me that [your attorney] is
not going to adequately represent you.
. . . .
Mr. Crawford, if [your attorney] makes arrangements
to sit down with you, and if you go over your case, and
if you still have dissatisfactions with him that are
derived not from your attitude at this point but from
further failures which you perceive on his behalf, you
need to make sure that you let [the Court] know about
those. Okay. Thank you.
¶17 As it turns out, counsel for Crawford did file a motion
to suppress as Crawford requested. The motion was heard and
denied. Crawford does not appeal from the denial of his
suppression motion.
¶18 Based on the foregoing, it is clear that the District
Court considered Crawford’s factual complaints together with his
attorney’s specific explanations regarding the complaints. The
District Court’s investigation into the matter was certainly
sufficient to qualify as an “adequate initial inquiry.” The
District Court presumably found that Crawford did not present
seemingly substantial complaints in his motion to substitute
counsel and, therefore, denied the motion. We hold that the
District Court did not abuse its discretion when it denied
Crawford’s motion to substitute counsel.
ISSUE 2
¶19 Did the District Court err when it denied Crawford’s
“Motion for Mistrial” without holding an evidentiary hearing?
¶20 Crawford states that “[w]ithout receiving notice that his
motion would be heard and without reviewing a response brief to his
9
motion, [he] found that the lower court entertained his motion for
mistrial during the court’s March 1, 2001, dispositional hearing.”
Crawford complains that the District Court did not hold an
evidentiary hearing to address the issues raised in his “Motion for
Mistrial” and, instead, ruled that the matter “should be taken up
on appeal.” Therefore, Crawford insists that “[a]s [he] has
considerable ineffective assistance claims, this cause should be
remanded to the district court for entry of findings relative to
those ineffective assistance of counsel claims.” From what we can
deduce, we believe that Crawford has asked us to review the
February 15 and March 1, 2001 proceedings in the District Court to
determine whether the District Court erred when it denied his
motion for mistrial without holding an evidentiary hearing.
¶21 The State contends that we should decline to address this
issue on appeal because Crawford has not provided a tape or
transcript of the District Court’s ruling on his “Motion for
Mistrial” and Crawford failed to notify the State of any intent to
exclude the tape or transcript from the appellate record. Crawford
did not file a reply brief responding to the State’s contentions.
¶22 Rule 9, M.R.App.P., provides in relevant part:
(a) Composition of the record on appeal. The
original papers and exhibits filed in the district court,
the transcript of proceedings, if any, and a certified
copy of the docket entries prepared by the clerk of the
district court shall constitute the record on appeal in
all cases. It is the duty of a party seeking review of a
judgment, order or proceeding to present the supreme
court with a record sufficient to enable it to rule upon
the issues raised. Failure to present the court with a
sufficient record on appeal may result in dismissal of
the appeal and/or the imposition of some other
appropriate sanction. [Emphasis added.]
10
¶23 In the minute entries for the February 15 and March 1, 2001
proceedings, the Deputy Clerk of Court indicated that “[a] verbatim
record was created by [an] Official Court Reporter.” Further,
Crawford’s opening brief contains four citations to the March 1,
2001 transcript. Therefore, we presume that a transcript of the
proceedings exists. However, Crawford has not provided it for our
review on appeal. Moreover, he did not serve the State with a
description of the parts of the transcripts he intended to exclude
from the appellate record.
¶24 Crawford quotes a passage from the pertinent transcript in
reference to the District Court’s justification for denying his
motion. However, we cannot verify the quoted passage’s accuracy or
be sure that it documents the District Court proceedings and
underlying rationale in full. Crawford also maintains that he
“documented the facts supporting his ineffective assistance claims
in his January 16, 2001, motion for mistrial, and in his October
26, 2000, motion to dismiss his attorney and, as the facts are
documented in the lower court’s record, the ineffective assistance
claims are reviewed on appeal before this Court.” Yet, the
assertions in Crawford’s motions are not “facts,” but simply
allegations which do not establish a sufficient record for our
review of the District Court’s judgment, as contemplated in Rule 9,
M.R.App.P. As Crawford has failed to provide a record of the
relevant District Court proceedings, we have no means to review the
grounds for or adequacy of the District Court’s consideration of
Crawford’s “Motion for Mistrial.” Therefore, we cannot resolve
this issue on appeal.
11
¶25 As noted above, Crawford recites an extensive list of
approximately twenty-eight ineffective assistance of counsel
allegations in his opening brief. However, his claims rest upon
conclusory allegations only. Crawford cites only the contents of
his father’s “Motion for Mistrial” as a basis for his ineffective
assistance of counsel claims. Thus, he provides the Court with
self-serving averments of misconduct, but no citations to the
official record which would enable the Court to properly review his
claims.
¶26 Rule 23(e), M.R.App.P., requires that “[w]henever a reference
is made in the briefs to the record, the reference must be to
particular parts of the record, suitably designated, and to
specific pages of each part . . . .” Crawford’s citations to his
“Motion for Mistrial” in support of his ineffective assistance
allegations simply do not constitute references to suitably
designated parts of the record. Without such specific references
to the record, we cannot possibly assess the validity of Crawford’s
conclusory allegations.
¶27 For the foregoing reasons, we affirm the District Court’s
denial of Crawford’s motion to substitute counsel and decline to
address whether the District Court erred when it denied Crawford’s
“Motion for Mistrial” without holding an evidentiary hearing.
/S/ PATRICIA COTTER
We Concur:
/S/ KARLA M. GRAY
12
/S/ JIM RICE
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
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