No. 12458 

IN THE 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 the Eleventh Judicial District, 

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, County Attorney, Kalispell, 

Montana. 

Submitted: September 28, 1973 

Decided ~)CT 3 1 1973 

Filed: OCT 3 k 1973 
Hon. R. D. McPhillips, District Judge, sitting in place of Mr. 

Justice John Conway Harrison, delivered the Opinion of the Court. 

This is an appeal by each of the defendants, Lawrence 

Lee Duncan and Michael Braxter Jeffrey, hereinafter referred to 

as Duncan and Jeffrey individually or as defendants collectively, 

from convictions for the crime of rape in the district court of 

the eleventh judicial districtvin and for the County of Flathead. 

In this case, four informations were filed against the 

two defendants. 

Jeffrey was charged in one information with four counts 

of rape against a 17 year old single female. Two of these counts 

alleging forcible rape were dismissed by the State at the time 

of trial. 

In the second information filed against Jeffrey there 

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

one involving fellatio and the other sodomy, allegedly committed 

against a 15 year old single female. One of the counts, with 

respect to forcible rape, was dismissed prior to trial. 

Duncan was charged in one information with two counts 

of rape against the 17 year old. One of the counts, for forcible 

rape, was dismissed prior to trial. 

In the other information Duncan was charged, as it related to the 15 year old, with two counts of rape, and one count 

of crime against nature. The forcible rape count was dismissed 

prior to trial. 

At the time of trial all of the rape counts against defendants were in the nature of what is commonly referred to as 

statutory rape. 

All of the alleged acts culminating in the above described 

charges were alleged to have taken place at the same time and 

place, namely, July 17, 1972, at Flathead 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. 

Defendants were acquitted on the other charges of rape 

and crime against nature. 

The four informations mentioned 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 specifications of 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 specification of error, 

would have this Court adopt a different rule than that which has 
been heretofore adopted and followed as it relates to the 

effectiveness of counsel in representing two or more defendants 

in a 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 this theory it is a matter of law that one 

attorney may represent multiple defendants if, and only if, (1) 

the trial judge warns the defendants, prior to trial, of a possible 

conflict of interest, and (2) the court makes an affirmative 

determination that the waiver and election is intelligent and 

was not dictated by indigence or the unawareness of the availability of court appointed counsel. This theory holds that absent such advice and intelligent waiver on the record the burden 

shifts to the prosecution to show beyond a reasonable doubt that 

such joint representation did not prejudicially impair the accuseds' 

Sixth Amendment right to effective assistance of counsel. This 

theory has not been adopted by the United States Supreme Court 

and is not the rule within the Federal system in this circuit. 

See Kruchten v. Eyman, 406 F.2d 304, 311 (1969). 

The alternative theory could be called the "conflict of 

interest" theory. This theory is well described and set forth 

in Kruchten where it states: 

"In considering the legal aspects of the conflict 

of interest claim, we start with the premise 

that if a conflict of interest actually exists 

the courts will not 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 to exist or 

can be reasonably foreseen an attorney may, in 

good faith, represent both defendants. (Emphasis 

supplied) . 

"This court, in Lugo 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.' 

"In Juvera 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 discuss with 

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 States v. Lovano, 420 F.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 interest which 

seriously prejudiced his case. The court there said: 

"The rule 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. (Citing cases)." 

Also see Fryar v. United States, 404 F.2d 1071 (1968). 

Under the "per - se" theory any dual representation that 

does not meet 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 conjecture as to what might have been shown. 

We have heretofore adopted the conflict of interest theory. 

In State v. Meidinger, Mont . , 502 P.2d 58, 66, 29 St.Rep. 

861, we said: 
" * * * 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 overcome by truth. 

" * * * Likewise we feel, under the facts before us, 

that where 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 defendants were tried together. Both hired and retained 

the same counsel to represent them in all preliminary matters 

and at trial. Counsel was not appointed, or imposed upon either 

of them -- he was retained by the defendants. Prior to this appeal neither of the defendants had 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 -- sew theory defendants do 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 light most favorable to defendants does not 

lead us to believe any rights belonging to these defendants were 

prejudiced. A conflict of interest must 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 specifically denied that any 

unlawful sex acts took place whatsoever as it related to themselves individually and to each codefendant. 

There were two previous cases before this Court concerning effectiveness of counsel, (In re 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 intelligent decision, and as to whether such defendants 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 constitutionality of 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, is punishable 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 is moot. 

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