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No. 98-568 IN THE SUPREME COURT OF THE STATE OF MONTANA

2000 MT 246 STATE OF MONTANA, Plaintiff and Respondent,

v. MARTIN REED SWAN, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, Honorable Ed McLean, Judge Presiding

COUNSEL OF RECORD: For Appellant: William F. Hooks, Appellate Defender's Office, Helena, Montana For Respondent: 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 Submitted on Briefs: July 20, 2000 Decided: September 14, 2000

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Filed:

__________________________________________ Clerk

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

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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.

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¶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

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¶21 Swan cites two Ninth Circuit Court of Appeals cases which he contends support his claims. In the first, United States v. Arlt (9th Cir. 1994), 41 F.3d 516, the question of thedefendant's mental competence gave rise to the trial court's denial of the request for selfrepresentation. The Ninth Circuit clarified that if Arlt was competent to stand trial, he was competent to choose to proceed pro se. Arlt , 41 F.3d at 518. Additionally, and in contrast to the present case, there was "no evidence on the record that indicates that Arlt ever changed his mind about his decision to represent himself." Arlt , 41 F.3d at 523 n.5. ¶22 In United States v. Hernandez (9th Cir. 2000), 203 F.3d 614, the appeals court determined that Hernandez's guilty plea was involuntary because the trial court had denied his pretrial request to be allowed to represent himself and vacated his conviction. Hernandez had asked that new counsel be appointed to represent him; when that request was denied, he said he would like to represent himself. The appeals court stated that the fact that the request was conditional "has no effect on the strong evidence that the request was unequivocal," citing the absence of evidence that the request was impulsive or emotional and the trial judge's initial acceptance of the request as unequivocal. Hernandez , 203 F.3d at 622. Those factors are not present in this case. Swan changed the nature of his request almost immediately upon being questioned by the District Court, which clearly did not initially accept the request as unequivocal. ¶23 Also interesting to note in Hernandez is the court's acknowledgment that "[i]t may be true that in some instances the failure of a defendant to renew a self-representation request will provide support for the conclusion that the request was equivocal." Hernandez , 203 F.3d at 623. Here, Swan was by all indications satisfied with the services of his substitute counsel. Although he later renewed and was granted his request to be allowed to use the library, he did not renew his request to be allowed to represent himself. ¶24 As to the requirement that waiver of the right to counsel be unequivocal, we have stated: The requirement that a request for self-representation be unequivocal also serves an institutional purpose: It prevents a defendant from taking advantage of the mutual exclusivity of the rights to counsel and self-representation. A defendant who vacillates at trial between wishing to be represented by counsel and wishing to represent himself could place the trial court in a difficult position: If the court appoints counsel, the defendant could, on appeal, rely on his intermittent requests for self-representation in arguing that he had been denied the right to represent

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/S/ J. A. TURNAGE

We concur: /S/ WILLIAM E. HUNT, SR.

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER

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