08/17/2021
DA 19-0323
Case Number: DA 19-0323
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 208N
STATE OF MONTANA,
Plaintiff and Appellee, FILED
v. AUG 1 7 2021
Bowen Greenwood
DUSTIN HAYES KNOX, Clerk of Supreme Court
State of nilontana
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DC-18-249
Honorable James A. Manley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Gregory Hood, Assistant Appellate
Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Damon Martin, Assistant
Attorney General, Helena, Montana
Steven Eschenbacher, Lake County Attorney, Benjamin R. Anciaux,
Deputy County Attorney, Polson, Montana
Submitted on Briefs: June 16, 2021
Decided: August 17, 2021
Filed:
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause nurnber, and disposition shall be included in this
Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Dustin Hayes Knox appeals from the Twentieth Judicial District Court's denial of
his motion to continue his jury trial and his subsequent convictions of assault with a
weapon, aggravated assault, aggravated burglary, and solicitation or tampering with
witnesses and inforrnants. We affirm.
¶3 On July 10, 2018, the State charged Dustin Hayes Knox (Knox) with robbery,
assault with a weapon, aggravated assault, and aggravated burglary. The State alleged that
Knox had poured gasoline from a water bottle onto Angela Cox (Cox) while she was
sleeping and, upon her awakening, demanded money,threatening to light her on fire before
going on to threaten her husband with a hammer. On November 14, 2018, the State filed
an amended information charging Knox with solicitation oftampering with witnesses and
informants based on a letter he had allegedly written to another inrnate atternpting to
coordinate efforts to intimidate Cox from testifying at trial. The added count caused a
conflict of interest for appointed counsel, and the public defender's office substituted in
contract conflict counsel, Lisa KauffMan (Kauffman). At the arraignment for the amended
charges, Kauffman rnoved for the Decernber 17, 2018 trial to be vacated. The District
2
Court granted the motion, rescheduling the trial for February 4, 2019. On January 22,
2019, Kauffman filed a rnotion to continue, pointing to a previously-scheduled trial which
she had expected would be resolved with a guilty plea, but which was now going to trial
scheduled for February 2, 2019, and a double-homicide trial scheduled for March and April
2019.
¶4 At a January 30, 2019 hearing on the motion, Kauffman explained that, though she
had "done a lot of leg work on this case," she needed more time to prepare, as she had
inherited Knox's case with no investigatory work having been cornpleted. Kauffman stated
that she needed to investigate information with which to impeach Cox over alleged
misrepresentations regarding whether Cox had owed Knox rnoney and to look into
potential witness testimony suggesting that Cox, rather than Knox, had wielded the
gasoline. Kauffinan, who admitted she was "freaking out" under the stress, stated that
"things need to be done. I've talked to probably every witness I'm going to need on the
phone. I need to probably interview the complaining witness based on her testimony from
last August."
Kauffinan stated that, as soon as she got the case in November, she had told Knox:
"I'm leaving for six weeks, the end of Decernber to January, for vacation."
That was planned, two years in the rnaking. And I said, "it's possible I'm
not going to be together enough to get this ready by February. Do you
understand that with my trial commitment we may not go until June?"
¶6 Knox apparently assented. Kauffinan had not advised the court of her schedule at
that time, however, and conceded at the hearing: "I guess perhaps I should have advised
the court of[scheduled plans] as soon as I got the case." The court noted that Kauffinan
3
took the case knowing she was going to leave for six weeks,to which Kauffman responded:
"It never occurred to me that a case I was appointed on in November I would be expected
to try in the first week ofFebruary." The court acknowledged that a jury panel had already
been pulled and that a flight for an out-of-state State witness had been arranged.
¶7 In response to a proposed June trial date, the District Court stated that it was
unwilling to have Knox be "incarcerated eleven months because of his counsel." Kauffman
then suggested a trial date ofApril 29, 2021. However,Knox foreclosed further discussion
of that possibility, indicating that he would only be willing to go to trial either "June or
[next] Monday."
¶8 The State did not object to the proposed continuance, citing concern for a potential
ineffective assistance of counsel claim on appeal. The District Court acknowledged this
concern, stating "[i]f we go forward on Monday, [Knox] would have a pretty good
argument to ineffective assistance of counsel." Kauffman repeatedly responded to the
District Court's stated concerns regarding Knox's speedy trial rights by pointing out that
they were Knox's to waive. Nevertheless, the District Court stated that Knox had "not
filed a waiver of speedy trial" and that:"As I understand, it's the defendant's position that
it's either June or Monday, so let's go to trial on Monday."
¶9 At trial, the State presented witness testirnony regarding the event as well as crime
scene photographs, lab reports indicating that the recovered water bottle and Knox's
clothing tested positive for gasoline, and a hammer found in Knox's vehicle. The
responding officer testified to finding Cox with wet hair, bloodshot eyes, and "reek[ing] of
gasoline." He described a very strong smell of gasoline in her room and finding a small
4
water bottle smelling of gasoline next to the bed. Over objection, the State adrnitted the
intercepted letter stating:
Please Make Sure That Bitch Don't Show up For trial!!! Counting on You
All. K. I Wasn't Able To talk to Bandito Robin So Don't Know What he got
Accomplished! He Said he talked to her So We Should Know if that was
enough on November 14th. If it Wasn't Tell Joe to Round Sorne Boys up &
get his ass up here. OR just tell hirn I Could Sure Use his help & Would
Gladly Pay For Services K.
¶10 Kauffinan brought two witnesses. One witness,the mother ofKnox's child, testified
that Cox had indeed owed Knox money and suggested that the letter exhorting "Joe" to
"round some boys up" was rnerely seeking financial help for her and her son. Both
witnesses testified that Cox did not have a reputation for truthfulness in the community. In
closing, Kauffman attacked Cox's credibility, arguing that Cox lied in representing that she
did not personally know her assailant at the time of the incident. Kauffman also pointed to
the lack of fingerprint evidence on the water bottle, which was not adrnitted into evidence,
and irnplied that Cox—whose hands were not swabbed for gasoline—might have actually
been the aggressor. In closing, the State characterized the issue of bond money as a red
herring, noting that "the fact that someone owes you money doesn't give you the right to
collect it by pouring gas on somebody and threatening them with a hammer." The jury
apparently agreed; at the close of the three-day trial, it returned a verdict of guilty for
assault with a weapon, aggravated assault, aggravated burglary, and solicitation of
tampering with a witness. The jury acquitted Knox on the robbery charge.
¶11 On February 11, 2019, Kauffrnan filed a rnotion for a Gallagher hearing to
"determine if the defendant could show by a preponderance of the evidence whether he
5
received a fair trial based upon ineffective assistance of counsel." See State v. Gallagher,
2001 MT 39, ¶ 7,
304 Mont. 215,
19 P.3d 817. The court heard testimony from both of
Knox's attorneys, finding that, after conducting Knox's suggested interviews, they had
informed Knox that "appropriate defenses and trial strategies would not produce favorable
results." The District Court concluded that Knox had "failed to show errors so serious that
assistance was not effective[,] . . . failed to show that those errors prejudiced the defense
and deprived him of a fair trial," and "failed to point to evidence or tactic that would have
overcome the overwhelrning evidence offered to the jury."
¶12 Knox appeals the court's denial of his motion to continue. Rulings on motions to
continue are reviewed for an abuse of discretion. State v. Garcia,
2003 MT 211, ¶ 10,
317
Mont. 73,
75 P.3d 313.
¶13 Due process considerations and the right to counsel require that counsel be given a
reasonable time to prepare for trial. Garcia, ¶ 13. Section 46-13-202(3), MCA, provides:
All rnotions for continuance are addressed to the discretion of the trial court
and must be considered in the light of the diligence shown on the part of the
movant. This section must be construed to the end that criminal cases are
tried with due diligence consonant with the rights of the defendant and the
prosecution to a speedy trial.
¶14 Though a district court has discretion over rnotions to continue, "[w]hen a
continuance is requested, and that request is reasonable given all the relevant factors
including the defendant's right to a fair trial and effective assistance of counsel, it
constitutes abuse of discretion for the court to refuse to grant the continuance." State v.
Sotelo, 209 Mont. 86, 92,
679 P.2d 779, 782(1984). However, even when a district court
has abused its discretion in refusing a motion to continue, this Court will not overturn the
6
decision absent a showing that the ruling prejudiced the defendant. See State v.
Ibarra-Salas, 2007 MT 173, ¶ 13,
338 Mont. 191,
164 P.3d 898.
¶15 Here, we need not consider whether the District Court abused its discretion in
declining to continue the trial, as Knox has not shown that he was prejudiced as a result.
Knox points to no blunders by Kauffman at trial. Instead, Knox sirnply asserts that
Kauffinan may not have cornpleted a sufficient level of investigatory research before trial,
raising the possibility that Kauffrnan could have rnissed sornething. However,Knox points
to no evidence to support this contention. To the contrary, the record indicates that
Kauffman was prepared at trial and that the strength of the State's case, not performance
by defense counsel, was responsible for the ultimate outcome.
¶16 First, the record indicates that, by the tirne of trial, Kauffman had completed the
work she had expressed concern about during the hearing on the motion to continue. At
the hearing, Kauffman had stated that, despite having already done "a lot of legwork" on
the case, "things need[ed] to be done." More specifically, she said that she "need[ed] to
probably interview the complaining witness." However, she also said that she had already
"talked to probably every witness I'm going to need on the phone." She also stated that
she was investigating potential evidence regarding who was wielding gasoline and whether
Cox had misrepresented that she did not in fact owe Knox rnoney.
¶17 At trial, Kauffman did introduce evidence arguing that Cox had actually owed Knox
the disputed money leading to the altercation and brought two defense witnesses to
challenge Cox's credibility. In closing, Kauffinan attacked the State's version of events
by implying that Cox, rather than Knox, might have been the aggressor. Given the
7
corroborating officer testirnony that Cox had been found drenched with gasoline,
Kauffman's failure to support this implication with evidence is far more attributable to its
likely non-existence than to a lack of preparedness by counsel in atternpting to locate it. In
short, there is no indication in the record that any ofthe "things [that] need[ed] to be done"
at the time of the hearing—interviewing witnesses and looking into ways to irnpeach Cox
or challenge her account of events—remained uncompleted at the time of the trial.
¶18 At the Gallagher hearing following trial, Kauffman testified to working between
fourteen and eighteen hours per day in order to be prepared for Knox's trial. Nothing about
this trial—featuring less than two days of witness testimony and a straightforward case by
the State—suggests that defense counsel would need an inordinate amount of tirne with
which to prepare. Notwithstanding Kauffman's stated sense of "freaking out" due to an
approaching deadline while loose ends still needed to be tied up—an all too fainiliar feeling
to many who have experienced law school—the record indicates that Kauffinan was
sufficiently prepared by the time of trial, where she provided Knox with adequate
representation.
¶19 Second, the outcome of the trial appears far more attributable to the substantial
strength of the State's case than the performance of counsel. The State presented witness
testiinony, physical evidence, officer testiinony of finding Cox with wet hair, bloodshot
eyes, and "reek[ing] of gasoline," and an intercepted letter seeking to "Round Soine Boys
up" to "Make Sure" that Cox "Don't Show up For trial." At the hearing on the motion to
continue, Kauffinan admitted that she did not have a "magic wand" with which to respond
8
to the letter. Knox points to nothing that Kauffman could have done differently that would
have led to a different result in this case.
¶20 In light ofthe strength ofthe State's case and a lack of any indication that Kauffman
was unprepared on the day of the trial, we do not find that Knox was prejudiced by the
District Court's denial of his motion to continue the trial. Because Knox is not entitled to
a reversal without a showing of prejudice, we need not consider whether the District Court
abused its discretion.
¶21 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶22 Affirmed.
We Concur:
)
(l r•>4•--4-Z4--•
Justices
9
