NO. 94-606

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Respondent,

v.

TRACY RAY CRAIG,

Defendant and Appellant.

APPEAL FROM: District Court of the Second Judicial District,

In and for the County of Silver Bow,

The Honorable Mark P. Sullivan, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William F. Hooks, Esq., Appellate Defender,

Helena, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Micheal Wellenstein, Ass't Attorney General

Helena, Montana

Robert M. McCarthy, Silver Bow County Attorney,

Butte, Montana

Filed:

ubmitted on Briefs: September 28, 1995

Decided: November 21, 1995
Justice W. William Leaphart delivered the Opinion of the Court.

Tracy Ray Craig (Craig) appeals from a jury verdict in the

District Court for the Third Judicial District, Silver Bow County,

convicting him of robbery. We affirm.

The following issues are presented on appeal:

1. Did the District Court abuse its discretion in denying Craig's

request for new counsel?

2 . Did the District Court deny Craig his constitutional right to

the assistance of counsel by refusing to substitute court-appointed

counsel and thereby giving Craig the option of proceeding to trial

with court-appointed counsel or appearing pro se?

3 . Did the District Court deny Craig his right to represent

himself by permitting "standby" counsel to become involved in the

defense?

4 . Did the District Court err in instructing the jury as to

"admissions" and "confessions?"

On June 15, 1994, the State charged Craig with the robbery of

the Ralph and Rose Formal Wear Shop in Butte, Montana. At the time

of the robbery, Craig was on parole and was a resident of the Butte

Pre-Release Center. Public Defender Pat McGee (McGee) was

appointed to represent Craig. At his arraignment, Craig pled not

guilty and the court set the trial for September 6, 1994, the court

later rescheduled the trial for October 18, 1994. On September 26,

Craig filed a motion to remove McGee as his counsel. In his motion,

Craig stated:

Said motion is based upon all of the files, records and

proceedings herein, and more particularly upon the

grounds that such representation of the Defendant by Mr.

Pat McGee constitutes a distinct violation of the

Defendant's protected rights to have effective assistance

of Counsel for his defense, and presents a conflict of

interest prejudicial to the Defendant's entire case.

3
The District Court denied Craig's motion for substitution of

counsel and offered the following explanation for its ruling:

Based on the pleadings and the record, the Court finds

that the Defendant has failed to allege any facts in

support of his motion that would entitle him to the

requested relief. Section 46-13-101(4), MCA, requires

the moving party to "state with particularity the grounds

for the motion" and to provide a statement of the

"relevant facts upon which the motion is being made."

Defendant's vague allegation that continued

representation of himbythe public defender "constitutes

a distinct violation of the Defendant's protected rights"

is insufficient to show any facts in support of his

request for substitution of counsel.

After the court denied Craig's motion, McGee informed the

court that Craig refused to discuss his defense with him. As a

result, the court conducted a hearing to give Craig the opportunity

to explain on the record why his public defender should be

replaced. At the hearing, Craig stated that there was 'I no

communication between me and my public defender." Additionally,

Craig recited a litany of problems he had with McGee including:

McGee refused to move for either discovery or change of venue;

McGee failed to interview a witness and failed to suppress

evidence; McGee advised him to enter a plea agreement; and, McGee

had seen him only one time.

The deputy county attorney responded to Craig's allegations,

as did McGee. Subsequently, the District Court found that McGee

was providing effective assistance and the denied Craig's motion to

substitute counsel. The court stated:

As with any other defendant, you are entitled to hire any

attorney you wish. Since you're obviously indigent, the

Court appointed Mr. McGee for you. You do have the right

in that circumstance for a court-appointed counsel, but

you do not have the right to choose your own attorney.

3
So I'm just telling you now that you also have the right

to represent yourself for your trial date.

Mr. McGee is going to stay on your case. I'm going

to deny your motion to replace him with any other public

defender. It's too iate, among other things. I don't

think there's been any ineffectiveness on his part in

preparing this case for trial. Nevertheless, he'll be

here in court the morning of the trial, and if you don't

want to use him, that's fine. You go ahead and represent

yourself or bring another attorney. If you want to make

some arrangements otherwise, that's open for you. We're

not going to change anything. The trial is going to go

on as scheduled. Mr. McGee is going to be here as

scheduled, and you're going to be here as scheduled. If

you have a defense, we'd like to hear it from you that

day.

Craig was given a copy of his file and trial began as

scheduled. The first day of trial, before voir dire and in the

presence of the prospective jurors, Craig told the court he was

having problems with McGee acting as counsel. In response, the

court asked him "do you intend to try the case yourself? You're

entitled to do that." Craig replied: "I can't, Your Honor. I'm

not a lawyer." The following colloquy took place concerning

Craig's right to counsel:

THE COURT: You have a lawyer appointed for you. YOU

don't have a lawyer of your choice when you're indigent,

but we do appoint an experienced attorney for you. We've

done that. Your attorney, Mr. McGee, has worked on this

case since its inception. He's submitted, by the way,

instructions as to the law of this case as I've requested

all attorneys to do. He's going to be here in court, and

we're going to proceed with this matter, and he's there

for you to seek counsel from. You can ask for his help

any time you wish, or you can remain mute if you wish.

I don't care what you do. But you're here in court for

a trial, and we're going to go ahead with this trial.

. . .

THE DEFENDANT: Like I said, Your Honor, we had that

meeting on Friday. I told you there was no communication

between me and this lawyer.

4
THE COURT: This is the lawyer you got from the Court,

from the county. This is the lawyer we're paying for

you. He's on retainer for the year. You asked for

change of counsel last week. That's too late to be

asking for changes of counsel. But you, at any time,

could hire your own attorney. I told you that. You can

also act as your own attorney. In the meanwhile, this is

your court-appointed attorney. You can use him if you

wish. He's going to be here through the remainder of

this trial. He'll be subject to your need for assistance

if and so you do need assistance.

During voir dire, the court explained to Craig that he could

examine the jurors or defer to McGee. The court suggested that,

unless he objected, Craig should let McGee conduct the voir dire.

Craig responded: "I can't pick them. I don't know nothing about

them. . . I haven't been in this town long enough. There's

nothing I can do, you know." The court replied: "Mr. Craig, that's

why we've appointed one of the public defenders on your behalf."

The court then directed McGee to conduct voir dire and he did so.

After conducting voir dire, McGee advised Craig that he was

entitled to six peremptory challenges. Craig responded: "I can't

pick them," refused to accept McGee's offers of assistance, and

waived his peremptory challenges.

After the prosecutor gave his opening statement and it was

Craig's opportunity to do so, the court told Craig that he could

make his opening statement, waive it, have McGee give it, or he

could reserve his opening statement until the end of the State's

case-in-chief. Craig responded: "Well, as far as 1'm concerned,

Pat McGee is not my attorney. He gave up that Friday." The

following discussion then took place:

5
THE COURT: He's still an attorney here from the Court's

viewpoint. You can use him any time you wish. You can

change your thinking on that.

THE DEFENDANT: I'm not an attorney, so I guess there

won't be no defense.

THE COURT: Well, what does that mean? Do you want Mr.

McGee to make an attempt here to make a statement?

THE DEFENDANT: That means there would be no defense.

THE COURT: I didn't hear that

THE DEFENDANT: I'm not a lawyer, so I can't defend

myself, so there would be no defense.

THE COURT: Mr. McGee, do you want to make a statement

now?

MR. MCGEE: Your Honor, I'm under limited disability

given the circumstances of what went on. I'll reserve

any opinion.

The court found that Craig reserved his opening statement

During its case-in-chief, the State called seven witnesses and

offered twelve exhibits. Neither Craig nor McGee cross-examined

any witnesses nor objected to any exhibits. When the court asked

Craig if he wished to cross-examine witnesses, Craig's response was

silence, "no," or "I can't, I'm not a lawyer." When the court

asked McGee if he wished to cross-examine the State's first

witness, McGee responded: "Again, he relates that I'm not his

attorney. So I guess there will be no cross-examination, Your

Honor."

McGee participated in the settlement of jury instructions.

During settlement of instructions but prior to the conclusion of

the State's case-in-chief, the court instructed Craig concerning

6
his right to present evidence on his behalf and his right to

testify.

THE COURT: So you make your own decision, and you can

either tell_ the Court at the appropriate time or have Mr.

McGee tell me that you do or do not wish to testify. If

you wish to call any other witness, you may do so.

That's going to happen after the plaintiff rests his case

in chief. So if you have nothing to put on, for

instance, that will be the end of the case, and we'll

submit the case to the jury by me reading the

instructions and sending the jury out to deliberate.

Okay.

After the State rested its case, the court again explained to Craig

his rights to testify, present witnesses on his behalf, and

reminded him of his right to make an opening statement. At that

point, the following dialogue ensued:

THE DEFENDANT: All right. For the record I'd like to

state that I'm not able to present a defense because I'm

not represented by a lawyer, and I'm not a lawyer so, you

know, without a defense I move for a mistrial. And

that's all I got to say.

THE COURT: 1'11 consider that a motion for a mistrial.

Do you want to say why?

THE DEFENDANT: Hmm?

THE COURT: Do you want to explain why you think you

should have a mistrial?

THE DEFENDANT: No defense

THE COURT: Whose fault is that?

THE DEFENDANT: I don't know

THE COURT: Do you wish to add anything, Mr. Canty, or

should I make a ruling?

. .

MR. CANTY: You can rule, Your Honor

THE COURT: You've got nothing to base that upon, Mr.

Craig. Your counsel has been court appointed. He's been

7
here with you. He's worked on this case prior. He's

consulted with you on numerous occasions. He's submitted

instructions on your behalf. He's been here in case you

needed his assistance. You didn't indicate at any time

that you wanted help from him. I don't feel that's his

problem nor Mr. Canty's problem nor my problem. That was

your call.

THE DEFENDANT: I motioned for it.

THE COURT: Now for you to say you want a mistrial

because you feel you didn't have an attorney does not

have any merit to it. That motion is denied. Now, do

you wish to add anything else, present any other defense?

THE DEFENDANT: No

As the parties settled the remaining instructions, McGee

objected to an instruction offered by the State concerning

admissions or confessions made by Craig. The court gave the

instruction over McGee's objection. Craig declined to give a

closing statement; the jury subsequently found him guilty of

robbery.

On November 7, Craig filed, pro se, a Motion for Substitute

Counsel to File For a New Trial. Pursuant to s 46-8-104, MCA,

Craig asked the court to appoint new counsel "for the purposes of

preparing and filing a motion for a new trial on his behalf and to

represent him throughout these criminal proceedings which remain

pending in the above-entitled action." During the hearing on the

motion, the court told Craig that he could not switch attorneys

whenever he wanted to, and denied the motion. The court proceeded

to hold a sentencing hearing and impose judgment.

This case presents a predicament in that Craig did not request

to proceed pro se, did not expressly waive his right to counsel,

and yet failed to cooperate with his court-appointed attorney.

8
Apparently, Craig's intent was to manipulate and to frustrate the

criminal proceedings. The fact that Craig did not seek to proceed

pro se, did not expressly waive his right to counsel, and did not

cooperate with his court-appointed attorney, raises a number of

issues.

1 . Did the District Court abuse its discretion in denying Craig's

request for new counsel?

The question of whether the District Court abused its

discretion in denying Craig's motion for new counsel is pivotal to

the determination of the rest of Craig's claims. The Sixth

Amendment of the United States Constitution and Article II, Section

24 of the Montana Constitution guarantee the fundamental right to

assistance of counsel. State v. Langford (1994), 267 Mont. 95, 99,

882 P.Zd 490, 492, cert. denied, 115 S.Ct. 1128, 130 L.Ed.2d 1090

(1995). Since Gideon v. Wainwright (19631, 372 U.S. 335, 83 S.Ct.

792, 9 L.Ed.2d 799, an indigent defendant in a state criminal

prosecution is entitled to representation by appointed counsel at

public expense. State v. Pepperling (1978), 177 Mont. 464, 472,

582 P.2d 341, 345; State v. Enright (19881, 233 Mont. 225, 228, 758

P.2d. 779, 781. The indigent's right to counsel includes the right

to have "effective assistance" of counsel. Peooerlinq, 582 P.2d at

345 (quoting State v. McElveen (1975), 168 Mont. 500, 503, 544 P.Zd

820, 821).

If appointed counsel renders effective assistance, the

defendant may not demand his appointed counsel's dismissal or

substitution, nor may the defendant demand that certain counsel be

appointed. Pepperlinq, 582 P.2d at 346. In other words, the right

9
to assistance of counsel does not grant defendants the right to

counsel of their choice. State v. Colt (1992), 255 Mont. 399, 404,

843 P.2d 747, 750. It is well settled in Montana that when

appointed counsel is rendering effective assistance, "the defendant

has the choice of (1) continuing with counsel so appointed, or (2)

having his counsel dismissed and proceeding on defendant's own, pro

se." Pepperlinq, 582 P.2d at 346, see also State v. Lange (1987),

226 Mont. 9, 13, 733 P.2d 846, 849; Enriqht, 758 P.2d at 781-82;

State v. Zackuse (1991), 250 Mont. 385, 386, 833 P.2d 142.

Nonetheless, if a defendant presents a seemingly substantial

complaint about effective assistance of counsel, the district court

should conduct a hearing to determine the validity of defendant's

request for substitution of counsel. Enriqht, 758 P.2d at 782.

Subsequently, upon a proper showing that failure to replace

appointed counsel would substantially impair or deny the right to

assistance of counsel, the district court should substitute

appointed counsel. State v. Long (1983), 206 Mont. 40, 44, 669

P.2d 1068, 1071; Enrisht, 758 P.2d at 782.

It is within the discretion of the district court to consider

requests to appoint new counsel and the court's determination will

be sustained absent an abuse of discretion. State v. Morrison

(1993), 257 Mont. 282, 284, 848 P.2d 514, 516; Lonq, 669 P.2d at

1071.

In Enriqht, we held that the district court's failure to

consider Enright's "seemingly substantial complaints" regarding the

effectiveness of counsel was reversible error. Enriqht, 750 P.2d

10
at 782. If a district court does not address a defendant's

complaints regarding effectiveness of counsel, the court may place

a defendant in the untenable position of choosing between

proceeding with ineffective counsel or proceeding pro se: "Such a

set of options is in essence no choice at all." Enriqht, 758 P.2d

at 782. In the instant case, the District Court did not place

Craig in such a position.

Craig's first attempt to remove McGee as counsel was properly

denied by the court. In response to Craig's motion to remove McGee

as counsel, the court found that Craig had failed to allege any

facts in support of his motion that would entitle him to relief, as

required by 5 46-13-101(4), MCA. Since Craig's motion failed to

raise a seemingly substantial complaint about McGee's performance,

no hearing on the motion was required.

Subsequently, McGee informed the court that Craig refused to

cooperate in his defense and the court conducted a hearing to give

Craig the opportunity to present his request for substitution of

counsel. In support of his position, Craig stated that there was

"no communication between me and my public defender." In addition,

he alleged that: McGee refused to move for either discovery or

change of venue; McGee failed to interview a witness and failed to

suppress evidence; McGee advised him to enter a plea agreement;

and, McGee had seen him only one time.

In a similar situation where a defendant refused to cooperate

and communicate with his appointed counsel and later claimed he had

been denied assistance of counsel, we held that " [llack of

11
communication between defendant and defense counsel is not of

itself basis for reversal on grounds of ineffective assistance of

counsel 'I Lonq, 669 P.2d at 1072. In cases where the defendant

refuses to cooperate in his own defense, we apply the general rule

that "a party who participates in or contributes to an error cannot

complain of it." Lonq, 669 P.Zd at 1072 (quoting State v. Lopez

(1980), 185 Mont. 187, 193, 605 P.2d 178, 181). Thus, a defendant

who refuses to cooperate in his own defense cannot complain of

ineffective assistance of counsel. State v. Strandberg (1986), 223

Mont. 132, 136, 724 P.Zd 710, 713; Long, 669 P.2d at 1072; State v.

Miller (19771, 173 Mont. 453, 457, 568 P.Zd 130, 132-33.

At the substitution of counsel hearing, the deputy county

attorney and McGee responded to Craig's allegations. Regarding

Craig's assertion that McGee should move to suppress evidence,

specifically a jacket seized from Craig's room at the Butte PreRelease Center, the deputy county attorney explained that as a

prison inmate and resident of the Pre-Release Center, Craig did not

have an expectation of privacy to prevent a search. Additionally,

Craig signed a document consenting to searches as a provision of

his discharge to the Pre-Release Center. McGee had told Craig that

filing a motion to suppress the admission of the jacket would be

frivolous and would be rejected by the court.

As to the witness Craig believed should be interviewed on his

behalf, McGee pointed out that she had already given a statement to

the police department which included the facts that Craig felt were

important. Regarding discovery, the deputy county attorney

12
responded that pursuant to the State's open file policy, McGee had

been given the entire investigative file. Regarding McGee's visits

with Craig, McGee testified that he had met with Craig at the

county jail and also for an extensive visit at the State Prison.

McGee stated that he discussed with Craig everything in his file

and went over the strong and weak points of the case including the

physical evidence.

Craig's other allegations were likewise explained and

countered by the deputy county attorney and McGee, resulting in the

District Court's finding that McGee was providing effective

assistance of counsel. Considering the court's inquiry into

Craig's claims of ineffective counsel and Craig's lack of

cooperation with counsel, we hold that the District Court did not

abuse its discretion and, therefore, was correct in refusing to

substitute counsel.

2 . Did the District Court deny Craig his constitutional right to

the assistance of counsel by refusing to substitute his courtappointed attorney and thereby giving Craig the option of

proceeding to trial with court-appointed counsel or appearing pro

se?

When the District Court correctly denied Craig's request to

substitute appointed counsel, Craig was left with the choice of:

(1) continuing with appointed counsel, or (2) having his counsel

dismissed and proceeding on his own, pro se. Pepperlinq, 582 P.2d

at 346; State v. Lange (1987), 226 Mont. 9, 13, 733 P.2d 846, 849;

Enriqht, 758 P.2d 781-82. He chose neither.

The Sixth Amendment of the United States Constitution has been

interpreted to include a defendant's right to represent himself,

13
pro se. Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525,

45 L.Ed.2d 562. Article II, Section 24 of the Montana Constitution

also provides defendants the right to proceed pro se. - I Colt 843

P.2d at 749; Lanqford, 882 P.2d at 492. Pursuant to 5 46-8-102,

MCA, a defendant may waive the right to counsel when the court

ascertains that the waiver is made knowingly, voluntarily, and

intelligently. In Lanqford, we specifically adopted the additional

criterion that the request to represent oneself must be

unequivocal. Lanqford, 882 P.2d at 492.

In the instant case, we agree with Craig that he did not

unequivocally request permission to proceed pro se. Craig

requested a change of counsel, which was correctly denied. We

decline to adopt the State's position that Craig's rejection of

McGee's representation constituted an unequivocal request to

proceed pro se and a valid waiver of his right to counsel. Craig's

situation does not meet the unequivocal request standard

established by Lanqford, 882 P.2d 490.

Craig seeks to fault the District Court for failing to advise

him of the dangers inherent in proceeding without counsel. This

argument is disingenuous. Obviously any such advice would have

made no difference to Craig's state of mind or the outcome of the

proceeding since Craig made it abundantly clear that he was not

opting to proceed pro se. Rather, his ploy was to circumvent the

court's adverse ruling on his motion to remove McGee and force

appointment of new counsel. Craig did not seek permission to

proceed pro se. He consistently and repeatedly reiterated that he

14
was not qualified to conduct voir dire, crossexamine witnesses or

present a defense and, in fact, he was not representing himself.

His candid admissions of his own shortcomings relative to

experienced counsel suggest that he was well aware of the

advantages of representation by counsel. Thus, despite any

inadequacies in the District Court's inquiry, Craig understood the

importance of counsel and the dangers and disadvantages of

proceeding without counsel or refusing to cooperate with courtappointed counsel. United States v. Sandles (7th Cir. 19941, 23

F.3d 1121, 1128.

The court did not leave Craig without counsel. On the

contrary, it clearly insisted on leaving McGee in as counsel. The

District Court continually referred to McGee as Craig's courtappointed attorney: "This is your court-appointed attorney. YOU

can use him if you wish."

A defendant may waive his right to counsel altogether.

Faretta, 422 U.S. 806. Accordingly, "at some point a criminal

defendant can be deemed to have waived to a certain extent his

constitutional right to effective assistance by virtue of his

unreasonable refusal to communicate with his attorney." Thomas v.

Wainwright (11th Cir. 1985), 767 F.2d 738, 743, cert. denied, 475

U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 349 (1986). The Thomas court

stated that a "persistent unreasonable demand for dismissal of

counsel [is] the functional equivalent of a knowing and voluntary

waiver of counsel." Thomas, 767 F.2d at 743 (citing United States

v. Moore (5th Cir. 1983), 706 F.2d 538, 540, cert. denied, 464 U.S.

15
859, 104 S.Ct. 183, 78 L.Ed.2d 163 (1983)). In Thomas, the

Eleventh Circuit found that Thomas had unreasonably chosen to

remain silent and had refused to communicate with his counsel or

the court, yet this behavior did not establish that his attorney

failed to provide reasonably effective assistance of counsel.

Thomas, 767 F.2d at 744.

In the present case, Craig was provided with counsel. With a

clear understanding of the dangers of proceeding without counsel,

Craig, instead of cooperating with his appointed counsel, chose to

present no defense. Craig's choice to present no defense, like

Thomas' choice to remain silent, effectively waived any right to

more effective counsel than was possible under the circumstances.

Thomas, 767 F.2d at 743. All the court can do is appoint competent

counsel. Whether that counsel is effective depends to a great

extent upon whether the defendant cooperates with counsel. If the

defendant chooses to hamstring the counsel through lack of

cooperation, the counsel's effectiveness will, of course, be

compromised accordingly.

In refusing to cooperate with his appointed counsel and, at

the same time insisting that he was not asking to proceed pro se,

Craig was attempting to force the appointment of new counsel. This

Court cannot countenance such dilatory and manipulative tactics at

the expense of the efficient administration of justice. In United

States v. Kelm (9th Cir. 1987), 827 F.2d 1319, defendant Kelm

refused to accept an appointed attorney and also refused to waive

his right to counsel, saying that he wished to hire counsel of his

16
own choosing. Despite Kelm's failure to appear at hearings

concerning his right to counsel, the court granted three

continuances in order for him to obtain counsel. The court refused

to grant any further continuances and, as a result, Kelm was left

without counsel at trial. Kelm argued that the court failed to

advise him regarding his right to counsel and that any waiver of

that right was therefore not knowing and intelligent. The Ninth

Circuit held that, reading the record as a whole, it was fair to

conclude that Kelm understood the dangers and disadvantages of

self-representation. "He knew he was entitled to counsel, yet the

record establishes that he elected to defend himself with his 'eyes

open. ' I' -,Kelm 827 F.Zd at 1322. The court noted that courts must

be wary against the "right to counsel" being used as a ploy to gain

time or effect delay. ~,Kelm 827 F.2d at 1322 (citing United States

v. Lustig (9th Cir. 1977), 555 F.2d 737, 744, cert. denied, 434

U.S. 1045, 98 S.Ct. 889, 54 L.Ed.2d 795 (1978)). The Ninth Circuit

concluded that Kelm was manipulating his constitutional right to

counsel in an effort to effect delay and that this tactic resulted

in a waiver of his right to counsel of his choice.

Where a defendant's conduct is "dilatory and hinders the

efficient administration of justice," a court may deny a

continuance even if it results in the defendant's being

unrepresented at trial. United States v. Leavitt (9th Cir. 1979),

608 F.2d 1290, 1293. Like Kelm, Craig manipulated his right to

counsel in an effort to force appointment of new counsel despite

17
the existence of no seemingly substantial basis for such a

replacement.

Craig contends that he was not manipulative because he did not

seek appointment of a particular counsel and did not seek

continuances or delays. However, Craig's tactic of asserting his

right to counsel while rejecting McGee presented the court with a

Hobson's choice: either you give me counsel to my liking, or I will

refuse to cooperate with the court-appointed counsel and then argue

denial of my Sixth Amendment rights. The court provided Craig with

competent counsel. The fact that McGee's effectiveness as counsel

was compromised by Craig's lack of cooperation was Craig's own

doing. Lens, 669 P.2d at 1072.

Craig's decision to reject McGee's assistance did not, as the

State argues, leave him only one option--to proceed pro se.

Instead, he chose to neither cooperate with his court-appointed

counsel, nor to present any defense. The inevitable result of his

"no defense" strategy was a one-sided, prosecutorial presentation

to the jury. We hold that the District Court did not deny Craig

his constitutional right to effective assistance of counsel.

3 . Did the District Court deny Craig his right to represent

himself by permitting "standby" counsel to become involved in the

defense?

Craig alleges that by allowing McGee to participate in the

trial as standby counsel, the District Court destroyed "the jury's

perception that the defendant is representing himself." McKaskle

v. Wiggins (1984), 465 U.S. 168, 177, 104 S.Ct. 944, 951, 779

18
L.Ed.Zd 122. This claim fails because we have held that Craig did

not unequivocally assert his right to represent himself.

Throughout the trial, neither the court, the prosecutor, McGee

himself, nor Craig ever referred to McGee as standby counsel.

Instead he was referred to by the court and the prosecutor as

Craig's attorney. McGee performed an extensive voir dire resulting

in one juror excusing herself because she was not sure she could be

fair to Craig. Even after voir dire and the State's opening

statement, when Craig stated McGee was not his attorney as far as

he was concerned, the court continued to view McGee as the attorney

available for Craig's defense.

The option of proceeding pro se was left open to Craig

throughout the trial. However, Craig did not seek permission to

proceed pro se. Thus, the jury did not have the perception that

Craig was representing himself. After the State's opening

statement, McGee's participation in the trial was very limited due

to Craig's non-cooperation. This may have left the jury confused as

to why Craig would choose to block his attorney's assistance, but

at no point were the jurors led to believe by the court, Craig,

McGee, or the State that Craig was proceeding pro se.

Outside the presence of the jury, Judge Sullivan, the

prosecutor, and McGee, with Craig present, settled the jury

instructions. Throughout this procedure Craig did not participate

nor did he object to McGee's participation. Judge Sullivan

continually consulted with McGee but acknowledged that McGee's

participation was limited by Craig's wishes. Judge Sullivan

19
stated: "He's calling the shots." This did not signify that Craig

was proceeding pro se, but that, as for all clients, Craig

determined his own defense. Craig did not assert his right to

proceed pro se and he did not object to McGee's limited

participation in the trial. Furthermore, Craig does not suggest

that McGee's participation in any way conflicted with his "actual

control over the case he chooses to present to the jury."

McKaskle, 465 U.S. at 178. Since the jury was never given the

impression that Craig was proceeding pro se, it cannot be said that

McGee's participation "destroyed the jury's perception that the

defendant is representing himself." McKaskle, 465 U.S. at 177.

Accordingly, we hold that the District Court did not deny Craig's

right to represent himself.

In sum, our holding in this case is narrowly tailored to the

unique situation Craig presents. By not cooperating with his

court-appointed attorney and not proceeding pro se, Craig attempted

to manipulate the court into appointing new counsel. However, as

the District Court found, McGee did provide effective assistance of

counsel. It was only Craig's noncooperation that compromised

McGee's representation. Although Craig's tactics resulted in a

self-defeating and unwise defense, we cannot countenance

manipulation of the Sixth Amendment in order to sabotage the

criminal justice system.

4 . Did the District Court err in instructing the jury as to

"admissions" and "confessions?"

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Craig asserts that the District Court improperly instructed

the jury on admissions and confessions by giving Jury Instruction

No. 7. Jury Instruction No. 7 states:

A statement made by a defendant other than at this

trial may be an admission or a confession.

A confession, as applied in criminal law, is a

statement by a person made after the offense was

committed that he committed or participated in the

commission of a crime. An admission is a statement made

by the accused, direct or implied, of facts pertinent to

the issue, and tending, in connection with proof of other

facts, to prove his guilt. A conviction cannot be based

on an admission or confession alone.

The circumstances under which the statement was made

may be considered in determining its credibility or

weight. You are the exclusive judges as to whether an

admission or a confession was made by the defendant, and

if so, whether such statement is true in whole or in

part. If you should find that any such statement is

entirely untrue, you must reject it. If you find it is

true in part, you may consider that part which you find

to be true.

Evidence of an oral admission or oral confession of

the defendant should be viewed with caution.

Craig alleges that he made neither a confession, nor an

admission. Craig's statements in question were made to Detective

Green after the robbery. When questioned by Detective Green about

the robbery, Craig stated: "I want it to be known that I did not

have a gun." He also told Detective Green that he could not "make

it" in the outside world.

In State v. Thompson, we stated: "An 'admission' is defined

as an avowal or acknowledgement of a fact or of circumstances from

which, together with other facts, guilt may be inferred . An

admission does not acknowledge guilt; rather, it tends to establish

guilt." State v. Thompson (1993), 263 Mont. 17, 25, 865 P.2d 1125,

2 1
1130 (citing State v. Goltz (1982), 197 Mont. 361, 363, 642 P.2d

1079, 1084 (other citations omitted) ) Thompson argued that the

court erred in characterizing statements he made at his omnibus

hearing as admissions and erred in charging the jury with the same

instruction that was used in the present case. This Court

concluded that Thompson's statement was inconsistent with his

theory of innocence and that the district court was correct in

instructing the jury on possible admissions.

In the present case, the District Court correctly presented

the j U~Y with the instruction concerning admissions and

confessions. Although Craig questions whether his statements were

admissions or confessions, the jury may have construed them as

inconsistent with innocence and thus treated them as admissions.

Accordingly, the court properly apprised the jury of the difference

between an admission and a confession; instructed the jury that a

conviction cannot be based on an admission or confession alone;

informed the jury that it alone was to determine if an admission

had been made; and advised the jury that an admission should be

viewed with caution. This instruction was to Craig's benefit. It

ensured that the jury did not overvalue Craig's statements. This

Court will uphold a district court if the instructions given,

viewed as a whole, fully and fairly instruct the jury on the law

applicable to the case. Thompson, 865 P.2d at 1131 (citing State

v. Lundblade (19811, 191 Mont. 526, 529, 625 P.Zd 545, 548). The

instruction given by the District Court is a correct statement of

22
the law, therefore, we hold that the District Court did not err in

instructing the jury on the law applicable to admissions.

Affirmed.

We concur:

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