No. 12458 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

THE STATE OF MONTANA, Plaintiff and Respondent,

MICHAEL BRAXTER JEFFREY and LAWRENCE LEE DUNCAN, Defendants and Appellants.

Appeal from: District Court of theEleventh JudicialDistrict, Honorable Robert Keller, Judge presiding. Counsel of Record: For Appellants: Sandall, Moses and Cavan, Billings, Montana Ralph Wright argued, Billings, Montana Joseph F. Daley appeared, Kalispell, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana 

### J. C. Weingartner, Assistant Attorney General, argued,

Helena, Montana H. James Oleson argued, CountyAttorney, Kalispell,

Montana.

Submitted: September 28, 1973 Decided

## ~)CT 

## 311973 Filed: 

### OCT

## 3k1973Hon. R. D. McPhillips, District Judge, sittinginplace of Mr. JusticeJohn Conway Harrison, delivered theOpinion of the Court.

This isan appeal by each of thedefendants, Lawrence Lee Duncan and Michael Braxter Jeffrey, hereinafter referred to

asDuncan and Jeffrey individually or asdefendants collectively, from convictions for the crime of rape inthedistrictcourt of the eleventh judicial districtvinand for theCounty of Flathead. Inthiscase, four informations were filed against the two defendants. Jeffreywas charged inone information with four counts of rape against a 17 year old single female. Two of these counts alleging forcible rapewere dismissed by the State atthetime of trial. Inthe second information filedagainst Jeffrey there

were two counts of rape and two counts of crime against nature,

one involving fellatio and theother sodomy, allegedly committed against a 15 year old singlefemale. One of the counts, with respect toforcible rape, was dismissed prior totrial. Duncan was charged inone information with two counts of rape against the 17year old. One of the counts, for forcible rape, wasdismissed prior totrial. In the other information Duncan was charged, as it related tothe 15year old, with two counts of rape, and one count of crime against nature. The forciblerape count was dismissed prior totrial. Atthe timeof trialallof therape counts against defendants were inthenature of what iscommonly referred toas statutoryrape. Allof the alleged acts culminating inthe above described charges were alleged tohave taken place atthe same timeand place, namely, July 17, 1972, atFlathead County, Montana.There is nothing to be gained in reciting all of the sordid details involved in this cause. It is sufficient that

we set forth that the two minor girls were picked up while hitchhiking near Whitefish,Montana by the defendants. They were taken in a pickup truck by defendants to a point west of Kalispell. It was at this time and place that the acts complained of in the informations took place. The girls testified that the acts of rape took place with each of them by each of the defendants. Each of the defendants testified that individually they did not have intercourse with either of the girls, arid that each positively knew that the other did not have intercourse with either of the girls. Obviously the jury did not believe all of defendants' story and found each of them guilty of one count of rape. Defendantswere acquitted on the other charges of rape and crime against nature. The four informationsmentioned above were consolidated for trial without objection and both defendants were tried together. Each of the defendants retained the same counsel to represent them during trial. Neither the sufficiency of the evidence nor the conduct of the trial itself is before the Court here on appeal. Defendants list two specificationsof error: 1. Were the defendants in this consolidated case denied effective counsel in violation of the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States? 2. Whether the crime against nature is unconstitutional

as being so vague, ambiguous, and uncertain that it cannot be effectively charged or prosecuted? Defendants, in discussing the first specificationof error, would have this Court adopt a different rule than that which hasbeen heretofore adopted and followed as it relates tothe effectiveness of counsel inrepresenting two ormore defendants ina criminal case growing out of the same set of facts. It is the apparent contention of defendants that this Court must and should adopt what has been called the "per se" theory. See Campbell 

### v. United States, 352 F.2d 359 (1965);Lollar v. United States, 376 F.2d 243 (1967); and Ford v. United States, 379 F.2d 123 (1967). Under thistheory it is a matter of law that one attorneymay represent multiple defendants if, and only if, (1) the trialjudge warns thedefendants, prior totrial, of a possible conflict of interest, and (2) the courtmakes an affirmative determination that thewaiver and election is intelligent and

was not dictated by indigence or theunawareness of the availabilityof court appointed counsel. This theory holds that absent such advice and intelligent waiver on the record the burden shiftstothe prosecution to show beyond a reasonable doubt that suchjoint representation did not prejudicially impair the accuseds' SixthAmendment right toeffectiveassistance of counsel. This theory has not been adopted by the United States Supreme Court and is not therule within theFederal system inthiscircuit. See Kruchten v. Eyman, 406 F.2d 304, 311 (1969). The alternativetheory could be called the "conflict of interest"theory. This theory iswelldescribed and setforth inKruchten where it states: "In considering the legal aspects of theconflict of interest claim, we startwith thepremise that if a conflict of interest actually exists the courtswillnot weigh or determine the degree of prejudice which may result before granting relief. Glasser v. United States, 315 U.S. 60, 75-76, 62 S.Ct. 457, 86 L.Ed. 680 (1942). However, until an actual conflict is shown toexist or can be reasonably foreseen an attorneymay, in good faith, represent both defendants. (Emphasis supplied)

# . "This court, inLugo v. United States, 350 F.2d 858, 859, said:"'All the cases cited to us by appellant involved obvious conflicts of interest,and while we cannot indulge in nice calculations about the amount of prejudice which results from a conflict of interest [Glasser,supra], neither can we create a conflict of interest out of mere conjecture as to what might have been shown.' "InJuvera v. United States, 378 F.2d 433, 437 (9 C.A. 1967), this Court stated: "'It is argued that it was essential that the trial judge at the commencement of the trial discusswith the defendants the problems relating to representation of the several defendants by one counsel, pointing out to them the disadvantage that might arise should there be conflicting interests to be represented by the attorney. We find this contention without merit for the reasons recently noted by us in Lugo v. United States, 9 Cir., 350 F.2d 858.'I' Also see Lollar v. United States, 376 F.2d 243; Lugo v. United States, 350 F.2d 858 (1965);United Statesv. Lovano, 420F.2d 769, 773,Cert. Den. 397 U.S. 1071 (2nd Cir. 1970). In Lovano, the appellant and his codefendant were represented by the same counsel. Appellant maintained that this dual representation created

## ,per conflict of interestwhich seriouslyprejudiced his case. The court there said: "Therule in this circuit is that some specific instance of prejudice, some real conflict of interest,resulting from a joint representation must be shown to exist before it can be said that an appellant has been denied the effective assistance of counsel. (Citingcases)." Also see Fryarv. United States, 404 F.2d 1071 (1968). Under the 

### "per

# - se" theory any dual representation that does notmeet the standards set forth above would by itself be violative of constitutional guarantee; while the other theory requires that there be a showing of a conflict of interest to the prejudice of the accused, and that this conflict must be

more than mere conjectureas to what might have been shown. We have heretofore adopted the conflict of interest theory. In Statev. Meidinger, Mont

# . , 502 P.2d 58, 66, 29 St.Rep. 861, we said:

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## * 

## * * The whole problem directs itself ultimately on appeal to the adequacy or inadequacy of defense counsel and in the eyes of this Court such adequacy or inadequacy of counsel should not be tested by the greater sophistication of appellate counsel who did not try the case,nor should the test be made on the basis of applying different defense tactics,perhaps of doubtful efficiency,after leisurely studying the transcript of the trial. To make success the only test of effective counsel would be an injustice to many able counsel, for frequently the ablest of counsel is overcomeby truth.



### " 

## * * * Likewise we feel,under the facts before us, thatwhere two defendants desire to retain one counsel their decision should be honored. Too, that later, when on hindsight after conviction, they should not be allowed to change that decision by alleging on appeal the inadequacy of their chosen counsel, especially when raised for the first time on appeal." The fact situation here is exactly as it was in Meidinger. These defendantswere tried together. Both hired and retained the same counsel to represent them in allpreliminarymatters and at trial. Counselwas not appointed,or imposed upon either of them

## -- he was retained by the defendants. Prior to this appeal neither of the defendantshad claimed he was denied effective counsel,but now, after conviction, they each contend that since they were represented by the same counsel they each were denied their right to effective counsel. Beyond propounding the "per 

## -- sewtheory defendantsdo not claim there was any actual prejudice in fact. They do speculate and attempt to create a conflict of interest through conjecture

as to what might have been shown. Such "apparent conflict of interest" must be shown from the record. We have diligently searched the record that defendants have brought before us. We

can find no actual or apparent conflict of interest. Even to speculate in the lightmost favorable to defendantsdoes not lead us to believe any rights belonging to these defendants were prejudiced. A conflict of interestmust be shown to exist before any defendant can effectively claim that he was denied effective counsel.This actually was a simple and straightforward case. The two young girls told their story without any material conflict between them. Each of the defendants voluntarily took the stand and confirmed the girls' story in all matters, except they each categorically and specificallydenied that any unlawful sex acts took place whatsoever as it related to themselves individuallyand to each codefendant. There were two previous cases before this Court concerning effectiveness of counsel, (Inre Petition of Peterson, 155 Mont. 239, 467 P.2d 281; and In re Petition of Evans, 158 Mont. 76, 488 P.2d 906) which were overturned by the Federal courts. Defendants endeavor to make much of this. This cause and fact situation is completely different. There, the Federal court found a conflict of interest, i.e., a statement by Evans that implicated the codefendant Peterson. This was the factor which clearly distinguishes the instant case from Peterson and Evans. No such statements or facts are contained in this record. No conflict of interest,apparent or otherwise, is shown or can even fairly be alluded to. As we have heretofore stated we do not adopt the requirements of the "per se" theory. However,we do suggest that in cases wherein defendants seek dual or multiple representation by single counsel the district courts would be wise to fully inquire, on the record, as to whether or not the accused have made an intelligentdecision, and as to whether suchdefendants are
aware of the availability or assigned counsel if they are indigent. But a failure to follow this suggestion is not by itself a reversable error. Defendants in their second specification of error attack the constitutionalityof section 94-4118,R.C.M. 1947. This statute states:"Every person who is guilty of the infamous crime against nature, committed with mankind or with any animal, ispunishable by imprisonment in the state prison not less than five years.

### " Each of the defendants, Duncan and Jeffrey,was charged by separate information with violating the prohibitions of this statute. Each of the defendants, Duncan and Jeffrey,was acquitted upon trial by jury. Since each was acquitted neither of the defendants l?as standing in this cause to contest the constitutionality of section 94-4118,R.C.M. 1947. This Court has no intention or desire to speculate or determine as to the validity or constitutionality of any statute or issue that is not properly before the Court. Neither of the defendants stand now charged nor can either of them ever again be prosecuted under this statute for the acts charged in the information filed below. The matter ismoot. For the above reasons the judgment of conviction as to each of the defendants is affirmed.



## ----------------r-----f-------------- Hon. R. D. ~c~hilli~s, District Judge, sitting in place of Mr. Justice John Conway Harrison.



### / %Chief Justice

Justices