No. 89-106 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA. 

Plaintiff and 

MICHAEL D . ALBRECHT , 

Defendant and 

Respondent 

Appellant. 

- 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Custer, 

The Honorable A. B. Martin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James G. Hunt, Hunt & Dix Law Offices, Helena, 

Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Jennifer Anders, Assistant Attorney General, Helena 

Keith D. Haker, County Attorney, Miles City, Montana 

Filed: 

Submitted on Briefs: March 8, 1990 

~ecided: April 26, 1990 * 
Justice John Conway Harrison delivered the Opinion of the Court. 

Defendant Michael Albrecht appeals his 1985 robbery conviction 

from Custer County following revocation of his suspended sentence 

in 1988 for parole violations. The defendant, who was returned to 

prison after the suspended sentence was revoked, filed a petition 

for post-conviction relief. Because a notice of appeal had been 

timely filed but never docketed in 1985, the Attorney General's 

answer to defendant's petition noted that defendant did not receive 

proper representation on appeal. Counsel for defendant was then 

appointed and a transcript of the 1985 lower court proceedings 

prepared. Upon review of the 1985 proceedings we affirm the trial 

court's judgment. 

Defendant presents two issues for review: 

1. Did the trial court commit reversible error when it 

refused to instruct the jury that theft is a lesser-included 

offense of robbery? 

2. Was the defendant denied effective assistance of counsel 

at trial? 

On January 9, 1985, when Cheryl Zabrocki, a teller at First 

Security Bank in Miles City, Montana, was approached by a man who 

asked her to take out all of the money in her drawer and lay it on 

the counter, she 'asked if he were kidding. The man assured Ms. 

Zabrocki he was not kidding, and showed her a paper bag containing 

a device that appeared to be a bomb, saying "You've got 30 seconds 

to lay it out on the counter.'' As Ms. Zabrocki emptied the inside 
portion of her cash drawer, the man said that he knew what he was 

doing and that she should not forget to include the hundred- and 

fifty-dollar bills. Ms. Zabrocki gave the man all of the money in 

the front half of her drawer, totalling $4,926. She did not, 

however, give the man the money in the back of the drawer which he 

could not see. The robber then left the bank. 

The bank personnel immediately notified local law enforcement 

authorities of the robbery and gave a description of the bank 

robber. Because a meter maid had earlier noticed a man matching 

the robber's description acting suspiciously, the man was quickly 

apprehended. When authorities surrounded his vehicle, the suspect, 

later identified as Michael Albrecht, jumped out of his car and 

stated "I did it, I did it, I have got the money.'' Law enforcement 

officials recovered $4,926 in cash on defendant's person and a 

brown paper sack containing what appeared to be an electronic 

device in the defendant's car. The device proved to be a nonfunctional conglomeration of emergency road flares, a flashlight 

battery, a switch and some wires. Defendant was arrested without 

incident. 

At his January 18, 1985 arraignment, defendant requested 

appointed counsel. Upon determining that the defendant was 

indigent, District Court Judge A.B. Martin appointed J.S. 

Wheatcroft to represent the defendant. 

Attorney Wheatcroft informed Judge Martin in a March 11 letter 

that defendant felt he might not be receiving adequate 

representation. A hearing concerning the adequacy of trial 
counselts representation was held on March 18. After inquiry and 

discussion, the judge refused to appoint new counsel for the 

defendant because the trial had already been scheduled and the jury 

notified. Defendant was given the option of continuing with Mr. 

Wheatcroftts representation or representing himself. 

At trial, held on March 20, appointed counsel Wheatcroft 

conducted the defense and the jury returned a verdict of guilty. 

Defendant was subsequently sentenced to seven years in prison with 

four years suspended. Originally, defendant received an additional 

two-year sentence for use of a dangerous weapon, but that portion 

of the sentence was later vacated. A notice of appeal was timely 

filed but never docketed, and no further action taken on the 

appeal. 

In May of 1987 defendant was released from the Montana State 

Prison to begin serving the suspended portion of his sentence. 

Defendant was returned to prison following an August 22, 1988 

hearing on the 'petition to revoke the suspended sentence. 

Defendant filed a petition for post-conviction relief. The State's 

response to that petition noted that defendant did not receive 

proper representation on appeal in 1985. This Court then ordered 

the matter remanded for preparation of a trial transcript and 

appointment of appellate counsel. The result of our previous order 

is this appeal. 
Defendant first argues that the trial court erred in refusing 

to instruct the jury that theft is a lesser-included offense of 

robbery. The trial court refused the instruction based on our 

holding in State v. Madera (1983), 206 Mont. 140, 670 P.2d 552. 

We affirm the trial court's decision. 

Defendant was charged with robbery, a felony, under $j 45-5- 

401(1) (b), MCA, which reads: 

(1) A person commits the offense of robbery 

if in the course of committing a theft he: 

(b) threatens to inflict bodily injury upon 

any person or purposely or knowingly puts any 

person in fear of immediate bodily injury[.] ... 

The definition of "included offensew is found at 46-11- 

501(2), MCA, which reads, in part: 

(2) An offense is an "included offense1' when: 

(a) it is established by proof of the same or 

less than all the facts required to establish 

the commission of the offense charged [ . ] . . . 

While this definition is found in the part of Title 46 

concerning the effect of multiple charges and former prosecutions, 

this Court has previously held that the definition is also 

applicable in determining whether an instruction on a supposed 

lesser-included offense is required. State v. Hamilton (1980), 185 

Mont. 522, 534, 605 P.2d 1121, 1128, cert. denied, 447 U.S. 924, 

The gist of defendant's argument is that the State must prove 
a theft in order to prove robbery, and theft, therefore, is a 

lesser-included offense of robbery. In Madera, we addressed this 

argument adopting the ttBlockburger test" to determine if theft is 

a lesser-included offense of robbery. We noted: 

The "Blockburger testtt (Blockburqer v. United States 

(1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 

306, 309) states: 

"The applicable rule is that, where the same 

act or transaction constitutes a violation of 

two distinct statutory provisions, the test to 

be applied to determine whether there are two 

offenses or only one is whether each provision 

requires proof of an additional fact which the 

other does not . . . . 11 

However, in Iannelli v. United States (1975), 420 

U.S. 770, 785, fn. 17, 95 S.Ct. 1284, 1294, fn. 17, 43 

L.Ed. 2d 616, 627, fn. 17, the Supreme Court explained the 

Blockburqer test saying: 

"If each requires proof of a fact that the 

other does not, the Blockburger test is 

satisfied, notwithstanding a substantial 

overlap in the proof offered to establish the 

crimes . . . . 11 

Our statute, section 46-11-502 (1) , MCA, prevents 

prosecution for more than one offense, when one offense 

is included in the other. 

In State v. Ritchson (1981), Mont., 630 P.2d 234, 

38 St.Rep. 1015, we considered the Blockburqer rule, and 

determined the applicable test is whether each charge 

requires proof of a fact which the other does not, to 

determine if there is indeed a lesser-included offense. 

We look to the statutes and not to the facts of the 

individual case to make that determination. Ritchson, 

630 P.2d at 237, 38 St.Rep. at 1018. 

Madera, at 151, 670 P.2d at 557-58. The Madera Court concluded 

that because felony theft required the additional element of proof 

that property taken exceeds a certain dollar amount, theft is not 

a lesser-included offense of robbery. 
The decision in Madera was confirmed on appeal to the federal 

court system. LaMere v. Risley (9th Cir. 1987) , 827 F. 2d 622. The 

LaMere court, in affirming the Montana Supreme Court and United 

States District Court, distinguished the two crimes: 

Robbery requires proof that a defendant threatened 

or put another in fear of bodily harm; felony theft 

requires no such showing. Felony theft, on the other 

hand, requires the prosecution to prove that the 

personaltyls.value exceeds $150 [raised to $300 in 19831. 

Mont.Code.Ann. § 45-6-301 (1) (a) (5), (1983) . A conviction 

for robbery does not. 

LaMere at 626. 

But in the case at bar, defendant argues he requested the jury 

be instructed that theft is a lesser-included offense because 

evidence was contradictory as to whether Ms. Zabrocki was put in 

fear during the incident. On direct examination, Ms. Zabrocki 

testified she gave defendant the money because she believed that 

if she did not give defendant the money she was in danger of bodily 

harm because of the device in the sack. On cross-examination, Ms. 

Zabrockils statement to police officers immediately following the 

incident was brought out. In that statement Ms. Zabrocki described 

defendant as 'Ireally nicev1 when he first approached her and said 

that she handed the money over to defendant because that was what 

she was trained to do. Defendant contends that if the jury found 

that defendant does not put anyone in fear of bodily harm he could 

be convicted only of theft and not robbery, and an instruction that 

theft was a lesser-included offense of robbery was therefore 

proper. 

We have, however, ruled that theft is not a lesser-included 
offense of robbery, Madera, at 151, 670 P.2d at 558, albeit for 

different reasoning. Nevertheless, we decline to hold differently. 

Not only does theft require an additional element of proof 

regarcling value, our statutes specify that commission of theft is 

not required for commission of a robbery. Section 45-5-401, MCA, 

requires only that the actor "be in the course of committing the 

theft." Under the statute, in order for a robbery charge to 

adhere, a person does not actually have to complete the theft but 

only be in the course of committing the theft. 

?'he Criminal Law Commission Comments to 5 45-5-401, MCA, 

further illustrate that theft is not a lesser-included offense of 

robbery : 

Common-law robbery was theft of property from the 

person or in the presence of the victim by force or by 

putting him in fear either or immediate bodily injury or 

of certain other grievous harms. The above draft does 

not explicitly include the traditional basis for 

classifying robbery as taking property from the person 

or in the presence of a person, but approaches the crime 

as one of immediate danger to the person and relies on 

the condition of violence or threatened violence to 

distinguish the crime from ordinary theft. The gist of 

the offense is taking by force or threat of force. 

The above provision would apply where property was 

not taken from the person or from his presence. For 

example, an offender might threaten to shoot the victim 

in order to compel him to telephone directions for the 

disposition of property located elsewhere. Further, it 

is immaterial whether property is or is not obtained. 

This seems compatible with the theory of treating robbery 

as an offense against the person rather than against 

property. Hence, a completed robbery may occur even 

though the crime is interrupted before the accused 

obtained the goods, or if the victim had no property to 

hand over. . . 

Criminal Law Commission Comments, Mont. Crim. Code, 1973 Annotated 

(1980 Revised Edition), p. 184. 
It is clear from Montana statutes, commission comments and 

case law that theft is not, and was never intended to be, a lesserincluded offense of robbery. We hold that the District Court was 

correct in refusing defendant's request to instruct that theft is 

a lesser-included offense of robbery. 

Defendant nedt argues that he was denied effective assistance 

of counsel at trial. The basis for his argument is that attorney 

Wheatcroft failed to investigate a lack of mental state defense. 

Defendant contends that trial counsel was well aware of certain 

indications that defendant was unable to form either of the mental 

states, purposely or knowingly, necessary to a robbery conviction. 

The alleged indications of inability to form the requisite mental 

state are that: 

1) several years before this incident defendant had been 

involved in a motorcycle crash which left him in a coma 

for several weeks, causing at least some brain damage; 

2) at the time of this incident, defendant was under 

severe distress because he had been unemployed for two 

months and could not support his family; and 

3) at the time of the incident, defendant was in a 

weakened state as a result of having slept in his 

vehicle, without heat, for several nights in January and 

not having eaten for at least two days due to a lack of 

money. 

Defendant argues that given these indications of his mental 

condition, trial counsel had an obligation to pursue an 

investigation into whether defendant had one of the requisite 

mental states at the time of the incident. The trial record shows 
that Wheatcroft was aware defendant had been unemployed for some 

time and had slept in his car and had eaten very little for two 

days prior to the incident. The record is inconclusive, however, 

regarding Wheatcroft's knowledge of defendant's involvement in a 

traffic accident. Wheatcroft's only reference to the accident 

occurred after the trial at the sentencing hearing when he elicited 

testimony from the defendant that defendant had suffered "severe 

brain damage" as the result of an accident. There was no medical 

evidence to confirm this testimony. 

This Court follows the two-prong test adopted by the United 

States Supreme Court to determine whether ineffective assistance 

of counsel has occurred: 

First, the defendant must show that counsel~s performance 

was deficient. This requires showing that counsel made 

errors so serious that counsel was not functioning as the 

llcounseln guaranteed the defendant by the Sixth 

Amendment. Second, the defendant must show that the 

deficient performance prejudiced the defense. 

State v. Stewart (1988), 235 Mont. 239, 241-42, 767 P.2d 296, 297 

(quoting Strickland v. Washington (1984), 466 U.S. 668, 687, 104 

Defendant contends attorney Wheatcroft's performance was 

deficient because. he did not consider the lack of mental state 

defense which prejudiced the defendant. It is clear that 

Wheatcroft did consider the lack of mental state defense, but 

rejected it as meritless. At the March 18, 1985 hearing on 

substitution of counsel, Wheatcroft told the District Court: 

Conferring with the client, or with the defendant, it 

didn't appear that he'd be a real good candidate for an 

insanity defense, and it was -- I interposed a defense 
of economic compulsion largely to keep alive -- to keep 

the case alive while I was undergoing plea bargaining 

efforts. 

Such consideration on the defense attorney's part is 

sufficient. In making a preliminary determination of competency 

for the purpose of asserting a mental deficiency defense, the 

attorney need only rely on his or her experience with the legal 

profession. This Court refused to impose more of a duty on defense 

attorneys evaluating a client's mental condition: 

Defendant argues that trial counsel erred by failing 

to require that defendant undergo physical and mental 

examinations in preparing the defense and prior to 

sentencing. This argument imposes an unacceptable burden 

on defense attorneys by requiring them to exercise 

diagnostic skills beyond their training. In this case 

the record suggests nothing that would evidence that 

defendant was suffering from mental disease or defect. 

Trial counsel's performance was not deficient under these 

circumstances. 

State v. Long (1986), 223 Mont. 502, 511, 726 P.2d 1364, 1370. 

In the case at bar, as in Lonq, nothing in the record suggests 

defendant was suffering from mental disease or defect sufficient 

to preclude his formation of the requisite mental state of 

purposely knowingly. fact the record indicates just the 

opposite. At the substitution of counsel hearing, defendant 

appeared confident and articulate, stating that he wished to have 

new counsel appointed because he found Wheatcroft, ''very 

incompetent and immature and very erratic emotionally and him and 

I definitely do not see eye to eye on this thing and he hasn't put 

anything into it yet." 

The trial court denied defendant's request for another 

attorney. Before trial, Wheatcroft advised defendant to enter a 
plea of guilty. Defendant, however, insisted the case go to trial 

on the theory that the bomb was so patently phony that the teller 

could not reasonably have been in fear. At trial defendant 

informed the court that he would actually participate in his own 

defense, instructed Wheatcroft to waive the opening statement, and 

indicated he would be advising Wheatcroft throughout the 

proceedings. 

Defendant's behavior as reflected in the record indicates his 

ability to form .the mental intent of purposely or knowingly. 

Defendant obviously understood the charge against him. Defendant 

was able to formulate his own theory of defense and demanded his 

case be presented under that theory. Such assertiveness belies 

defendant's contention that he was incapable of acting with the 

purpose or knowledge necessary to a robbery conviction. 

Furthermore, the record demonstrates that defendant acted 

purposely or knowingly at the time of the robbery. At trial 

defendant testified with detailed accuracy regarding places he had 

stopped and inquired for work, the route he travelled, places he 

stayed, and how much money he had at each point in his travels. 

Defendant testified regarding his arrival back in Miles City and 

events on the day of the incident: 

Q. Okay. What did you do when you got here 

in Miles City? 

A. Well, in the Miles City area, I got -- it 

wasn't in the morning. It would be the 

afternoon of January 7th, but I arrived in 

Miles City and it was in the late afternoon, 

and I walked down Main Street and stopped into 

a few of the stores and asked them if they 

were looking for any type of help, and I 
walked through the bars and I questioned all 

the farmers I could find, and I asked the 

bartenders if they had heard of anybody that 

was looking for help. 

Q. okay, and how long did this go on? 

A. This happened while it was late in the 

afternoon of the 7th, and that night I slept 

in may car, about a block north of the SA 

store here, and then the following morning I 

was very cold, and I got up and it took me 

quite awhile walking to get warmed up, and 

then I had not eaten since it was Sunday, the 

6th I guess it would be, and that was the last 

time I had eaten and I was still getting 

fairly cold, but I was walking around to warm 

up and once again I proceeded to go into some 

places and through the same bars and asked, 

and nobody had heard yet of anything of a job 

opening anywhere yet. 

Q. Okay. Do you recall the events of January 

9th of this year? 

A. Well, the morning of January 9th. It was 

-- I 'm not sure just what the time was, but at 

eight o'clock I woke up and it was awful cold 

that morning, and it took quite awhile walking 

around and also trying to warm up and 

different things, and I was also getting very 

hungry, and I decided that somehow I would 

have to come up with some money here or 

something for food and lodging, and I had a 

family at home yet too, that I didn't want 

them evicted or kicked out. 

Q. So what did you do? 

A. Well, from the time I woke up, I walked 

around to warm up, and it took me awhile, and 

then I admit, it wasn't a very logical thing 

to do, but I decided that I had to come up 

with some money some way, but I wasn't sure 

how I was going to do it yet, and -- well, I 

devised the flares the way you seen them 

arranged, and I didn't know what I was going 

to do when I devised these flares, and I 

walked around with them for an hour and a 

half. . 

Q. What did you do then? 
A. Well, after walking around? 

Q. What did you do then? 

A. After walking around and all of that, it 

was about ten minutes before I went into the 

bank and that's when I decided that I was 

going to go into the bank. 

Q. What happened in the bank? 

A. Well, I just walked in the door and it was 

11:13 and I walked up to the first lady and 

asked her for all of the money. 

Defendant's testimony demonstrates his ability to recall the 

incident and the details surrounding it. Such recollection tends 

to show the defendant was aware of his conduct and thus negates his 

contention he lacked the mental state of purposely or knowingly. 

State v. Raty (1984) , 214 Mont. 114, 117, 692 P. 2d 17, 19. 

Moreover, the defendant's mental state may be inferred from 

circumstantial evidence, including a defendant's actions and 

evidence found surrounding the alleged offense. State v. Trask 

(1988), 234 Mont. 380, 385, 764 P.2d 1264, 1267; State v. Hardy 

(1980), 185 Mont. 130, 136-37, 604 P.2d 792, 796; State v. Jackson 

(1979), 180 Mont. 195, 205, 589 P.2d 1009, 1015. Given defendant's 

testimony concerning his constructing the bomb and transporting it 

into the bank, the jury could properly infer defendant entered the 

bank with the mental intent of purposely or knowingly instilling 

fear in the bank teller. 

Defendant next implies that his inadequate representation 

resulted from the District Court's refusal to provide substitute 
counsel. It is within the sound discretion of the trial court to 

rule on substitution of counsel, and absent abuse of that 

discretion the decision will not be overturned. State v. Martz 

(1988), 233 Mont. 136, 139, 760 P.2d 65, 67; State v. Long (1983), 

206 Mont. 40, 45, 669 P.2d 1068, 1071 (citing Good v. United States 

(9th Cir. 1967), 378 F.2d 934, 935). 

The trial court's duty, when considering a motion for 

substitution of counsel, is to make adequate inquiry into the 

complaint of the defendant and to discover whether the conflict was 

so great as to result in a total lack of communication. Martz, at 

139-40, 760 P.2d at 67 (citing Brown v. Craven (9th Cir. 1970) , 424 

F.2d 1166 and United States v. Mills (9th Cir. 1979), 597 F.2d 

693). The District Court met its burden, inquiring of defendant 

what his reasons for wanting a new attorney were. Defendant 

replied that he and Wheatcroft did not see eye to eye and that he 

felt Wheatcroft had not "put anything into it yet.'' The tria:L 

judge then asked Wheatcroft what he had done about the case.. 

Wheatcroft indicated he had read statements of people involved, 

including the defendant's, held discussions with officers involved, 

considered potential defenses, conferred with defendant and 

attempted plea bargains. 

Obviously, the conflict between defendant and Wheatcroft had 

not resulted in total communication breakdown. While the attorney 

and client may not have experienced a llmeaningful relationship,'' 

they did not have a total lack of communication. Martz, at 140, 

760 P.2d at 67 (citing Morris v. Slappy (1983), 461 U.S. 1, 103 
S.Ct. 1610, 75 L.Ed.2d 610). 

No showing of ineffective representation based upon a total 

lack of communication was made. Therefore, the District Court's 

decision will not be disturbed. 

We affirm. 

We concur: ,++ 

44- Chief Justice