The opinion
No. 8 6 - 4 3 9
TN THE SUPREME COURT OF THE STATF OF MONTANA
1987
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JUSTIN WADE BROWN,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John Keith, Great Falls, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Joe R. Roberts, Asst. Atty. General, Helena, Montana
Patrick Paul, Cascade County Attorney, Great Falls,
Montana.
Submitted on Briefs: April 30, 1 9 8 7
Decided: E ~ g 25, ~ t
~ IS27
Clerk
Mr. Chief Justice J.A. Turnage delivered the Opinion of the
Court.
Justin Brown appeals a jury conviction for felony theft
in the Eighth Judicial District, Cascade County. On June 12,
1986, Brown was sentenced to ten years in prison with five
years suspended. He was also designated a persistent felony
offender and sentenced to an additional ten years with five
years suspended, to run consecutively. We affirm the
conviction.
Brown raises three issues for our review:
1. Did Brown receive effective assistance of counsel?
2. Did the District Court err when it designated Brown
a persistent felony offender?
3. Did the District Court err when it denied Brown's
request to represent himself?
On May 23, 1985, the Great Falls residence of Tim
Murray was burglarized. Several pieces of stereo equipment,
valued in excess of $300, were stolen. Two days later,
Officer John Cameron of the Great Falls police was contacted
by Raelene Wilson. Based on information she provided, Offi-
cer Cameron and Officer A1 Redenbaugh went to the residence
of Sandra LaRoque.
After receiving LaRoque's consent to search under her
mobile home, the officers found some of the stolen stereo
equipment. LaRoque identified Brown as one of the people who
brought the stereo equipment to her home. Fingerprints on
the stereo equipment matched those of Brown. On January 2,
1986, Brown was charged with burglary and theft.
The jury was unable to reach a verdict on the burglary
charge, but convicted Brown of felony theft, as specified in
§ 45-6-301 (1)(a), MCA: "A person commits the offense of
theft when he purposely or knowingly obtains or exerts
unauthorized control over property of the owner and has the
purpose of depriving the owner of the property." (Emphasis
added. )
Issue 1
Did Brown receive effective assistance of counsel?
Brown's trial was scheduled for Monday morning, April
7, 1986. On the afternoon of April 3, 1986, Brown filed a
pro se "motion and order" requesting the discharge of his
court-appointed counsel, Nancy Belcheff, for ineffective
assistance. He further requested a continuance of his trial
date. The court held a hearing on the motion, where Brown
stated: "If I have to have her representation, then I will
represent myself, its as simple as that." The court denied
Brown's request. Brown's trial was held as scheduled with
Nancy Belcheff serving as defense counsel.
At trial, Officer Cameron testified that Raelene Wilson
told him Brown approached Wilson about buying some stereo
equipment. Officer Redenbaugh testified that Sharon LaRoque
said Brown brought the equipment to LaRoque Is trailer.
Detective Renman testified that Brown was informed of his
Mirand.a rights, and that Brown admitted to possessing the
stolen equipment. Defense counsel did not object to the
testimony of the three officers. Neither Wilson nor LaRoque
testified at the trial. In chambers following his
case-in-chief, Brown decided against taking the stand and
rebutting Detective Renman's testimony.
After the case went to the jury, the jury requested to
rehear Detective Renman's testimony about Brown's admission.
The judge allowed the court reporter to read the testimony
back to the jury. Defense counsel did not object to that
procedure.
Brown contends that the cumulative effect of defense
counsel's unmade objections caused his conviction and consti-
tuted ineffective assistance. Brown also contends that the
readback improperly emphasized Detective Renman's testimony.
We review issues of ineffective assistance of counsel
under the standard of Strickland v. Washington (1984), 466
U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693:
"First the defendant must show that counsel's performance was
deficient ... Second, the defendant must show that the
deficient performance prejudiced the defense."
The ineffective assistance must be apparent from the
record. However, our examination of the legal defense pro-
vided to Brown shows neither deficiency in assistance, nor
deprivation of a fair trial. Rrown alleges tactical trial
errors, but fails to show how these alleged errors reached
the magnitude of deficient performance. As we have repeated-
ly held, the decisions on the timing and number of objections
lie within counsel's tactical discretion. State v. Matson
(Mont. 1987), 736 P.2d 971, 978, 44 St.Rep. 874, 882. In
reviewing the pretrial record and trial transcript, we find
that defense counsel's performance was adequate.
Brown fails to show how defense counsel's performance
prejudiced his defense. Any sustained objections to the
officers' direct testimony would not have materially altered
the case against Brown. The statements of Wilson and LaRoque
were confirmed by the discovery and fingerprint analysis of
the stolen property.
Furthermore, the readback of Detective Renman's
testimony did not result in undue emphasis. The court asked,
"Does that answer your question?" and the juror replied, "No,
it does not." The court refused to accept any further
questions. We find that Rrown suffered no prejudice as a
result of the readback.
We hold that defense counsel provided adequate and
effective assistance. Brown stands convicted, not on the
basis of unmade objections, but on the basis of substantial
evidence which conclusively linked him to the stolen
equipment.
Issue 2
Did the District Court err when it designated Brown a
persistent felony offender?
The State served notice to Brown of its intention to
seek a persistent felony offender designation. At the sen-
tencing hearing on June 11, 1986, the State presented a
certified copy of a Wyoming judgment in which Brown was
convicted of forgery. Based upon this felony conviction, the
District Court designated Brown a persistent felony offender,
as defined in § 46-18-501, MCA: "A 'persistent felony
offender' is an offender who has previously been convicted. of
a felony and ... less than 5 years have elapsed between
commission of the present offense . .. and the previous
felony conviction."
Brown contends that the State failed to properly iden-
tify him as the person named in the Wyoming judgment. Brown
admits that by failing to make a specific objection to his
identification, he has waived his right to assert that the
certificate of prior conviction was not competent evidence.
State v. Metz (1979), 184 Mont. 533, 535, 604 P.2d 102, 104.
However, Brown asserts that this failure to object is another
example of counsel's ineffective assistance.
Contrary to Brown's contentions, our review of the
record at sentencing reveals that defense counsel was a
diligent advocate for Brown. Her decision to not object to
the Wyoming judgment was prudent, especially in light of
Brown's behavior. As the District Court told Brown at
sentencing: "You don't pick and choose your counsel. You are
lucky to have one at all. It's been the observation of this
Court that she has done a tremendous job considering your
lack of cooperation with her." We find that counsel's deci-
sion rested within the scope of effective assistance.
Furthermore, Brown never denied that he was the person
named in the Wyoming judgment. If, arguendo, defense counsel
had objected to the certificate, the State was prepared to
verify the identity of Brown through the testimony of a
deputy. Brown fails to show that any of his rights were
compromised in the sentencing process.
We find no merit in Brown's argument. We hold that the
District Court properly sentenced Brown as a persistent
felony offender.
Issue 3
Did the District Court err when it denied Brown's
request to represent himself?
Brown contends that the forced imposition of counsel
violated his Sixth Amendment right to effectively defend
himself. Brown further asserts that the court should have
appointed standby counsel if Brown was competent to waive
counsel.
In analyzing this issue, we note that the Sixth Amend-
ment right to counsel includes the right of an accused to
personally make his own defense. However, before a court can
remove appointed counsel, the defendant must be competent to
abandon his right to counsel. A trial court can appoint
standby counsel and allow the defendant to represent himself,
but only if the court is satisfied that the defendant has
knowingly and intelligently waived his counsel. McKaskie v.
Wiggins (1984), 465 U.S. 168, 173, 104 S.Ct. 944, 948, 79
L.Ed.2d 122, 130.
A careful review of the record, from pretrial proceed-
ings through sentencing, confirms that defense counsel
provided competent assistance. When a defendant is
adequately represented by counsel, he does not have the
constitutional right to also represent himself. State v.
Smith (Mont. 1983), 670 P.2d 96, 101, 40 St.Rep. 1533, 1538.
When questioned on April 3, Brown failed to cite any specific
instances of deficient performance by his counsel.
Furthermore, Brown's pretrial conduct was uncooperative.
Brown's competence to adequately represent himself was
doubtful.
The decision to remove appointed counsel lies within
the discretion of the trial court. Based on the demonstrated
representation of Nancy Belcheff , and the potential for
inadequate self-representation by Brown, we hold that the
court properly denied Brown's request.
We affirm Brown's conviction.
We concur:
..-'