96-310

No. 96-310

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

STATE OF MONTANA,

Plaintiff and Respondent,

v.

RONALD EDWARD BORCHERT,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Larry W. Moran, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Jennifer Wendt Bordy, Bozeman, Montana; Suzanne C.

Smith, Marshall & Smith, Bozeman, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, John Paulson,

Assistant Attorney General; Mike Salvagni, Gallatin

County Attorney, Marty Lambert, Deputy Gallatin

County Attorney, Bozeman, Montana

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-310%20Opinion.htm (1 of 9)4/11/2007 1:51:34 PM
96-310

Submitted on Briefs: January 9, 1997

Decided: March 6, 1997

Filed:

__________________________________________

Clerk

Justice William E. Hunt, Sr., delivered the Opinion of the Court.

 Appellant Ronald Edward Borchert (Borchert) was convicted of

two counts of robbery following a jury trial in the Eighteenth

Judicial District Court, Gallatin County. Borchert appeals.

 We reverse and remand for a new trial.

 The following issues are dispositive:

 1. Did the District Court abuse its discretion in denying

Borchert's motion to continue?

 2. Was Borchert denied effective assistance of counsel when

his co-defendant confessed on the date set for trial, creating a

conflict of interest because his counsel previously represented the

co-defendant when he maintained his innocence?

BACKGROUND

 On July 16, 1993, within a period of one hour, two robberies

were committed at two motels in Bozeman, Montana. Both robberies

were committed by the same two men, in much the same manner: as one

robber, wearing a blue handkerchief wrapped around his face and

brandishing a pellet gun, guarded the entrance to the lobby of the

motel, the other robber, wearing a rubber Halloween mask, a red and

black flannel shirt, and brandishing a large-caliber revolver,

approached the clerk on duty and demanded money. At one of the

motels, the Western Heritage Inn, the robber wearing the Halloween

mask and flannel shirt left a muddy shoe print on the service

counter when he climbed over it to reach the clerk and the money in

the motel till.

 Bozeman police did not apprehend the robbers on July 16, 1993. 

However, subsequent investigation led to the arrests of Borchert

and Michael Paul Bakeberg (Bakeberg). The investigation generally

involved the following events and revealed the following

information:

 On August 5, 1993, Borchert was arrested in Belgrade, Montana

for DUI. The arresting officer noticed a rubber mask on the

passenger-side floorboard of Borchert's car. The officer seized

the mask and impounded the car. When shown the mask later, the

motel clerks identified it (mistakenly, as subsequent events would

establish) as the one worn during the robberies. During police

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-310%20Opinion.htm (2 of 9)4/11/2007 1:51:34 PM
96-310

questioning, Borchert denied any involvement in the robberies and

claimed that he found the mask in a dumpster. Police later

searched Borchert's residence without finding any incriminating

evidence.

 Soon after the police searched Borchert's residence,

Borchert's older brother called Bakeberg to warn him that the

police would likely come talk to him. Bakeberg had the mask and

flannel shirt worn during the robberies in his possession; he took

them to a brushy area near the Bozeman dump and hid them there.

 The next day, Bakeberg walked from his home to the Bozeman

police station to speak with the detectives investigating the

robberies. While interviewing Bakeberg, Detective Mark LaChapelle

noticed that Bakeberg was wearing Converse Allstars gym shoes with

a tread design similar to the shoe print which had been left on the

counter top at the Western Heritage Inn. Detective LaChapelle took

the shoes and sent them to the state crime lab in Missoula and

later to the FBI crime lab.

 On October 30, 1993, two Montana State University students

discovered among the rocks surrounding Hyalite reservoir near

Bozeman a Smith & Wesson .357 caliber pistol with distinctive

sights and grips. The students brought the gun to the sheriff's

office in Bozeman. Later, the pistol was identified by the motel

clerks as one of the guns used in the robberies. The pistol was

also identified by Chris Rager (Rager) as one of three guns stolen

from his home some two weeks prior to the motel robberies. One of

the persons involved in the burglary of Rager's home was Borchert's

younger brother Donny. In addition, in the course of an

investigation into an unrelated crime, police learned from Tim

Craig, the father of a friend of Borchert's and Bakeberg's, that

he, Craig, had received from Borchert and another man two of the

guns stolen from Rager's home, the .357 and a .44 magnum pistol. 

Borchert had initially given the .357 to Craig as collateral for a

loan, but later, despite not having repaid the loan, had pleaded

with Craig for its return. Craig returned the pistol to Borchert

on October 23, 1993, the day after Bozeman police visited with

Craig.

 Borchert was eventually charged with two counts of robbery on

May 17, 1995. Suzanne Smith was appointed to represent Borchert. 

Bakeberg was charged as a co-defendant in June, 1995. Bakeberg, a

juvenile at the time of the offenses, was represented at an October

2, 1995 detention hearing by Ms. Smith, who soon withdrew. 

Thereafter, Bakeberg was represented by Karl Seel, while Ms. Smith

maintained her representation of Borchert. Trial was set for

November 13, 1995.

 On the morning of the trial, the State moved for a continuance

on the grounds that it was unsure whether two of its witnesses,

Craig and his son Shawn (both of whom, since the robbery

investigation, had moved to Bend, Oregon) would make it to Bozeman. 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-310%20Opinion.htm (3 of 9)4/11/2007 1:51:34 PM
96-310

The Gallatin County Attorney's office had arranged their travel

plans and possessed the correct itineraries, but because of a

misunderstanding of the Craigs' travel plans believed that they had

missed a crucial connecting flight early on the morning of the

first day of trial, when they were scheduled to testify. The

county attorney asserted that the Craigs were material witnesses

and therefore an important part of the State's case. In addition,

there was some concern that because of some legal issues unrelated

to the instant case, the Craigs would not show up in Bozeman at

all. Over Borchert's objection, the court granted the State's

motion for continuance.

 The State appeared before the court at 1:30 p.m., later the

same day, and informed the court that the Craigs had indeed arrived

in Bozeman. The court recalled the jury to begin trial the next

day.

 Meanwhile, also on November 13, 1995, in the morning,

Bakeberg's attorney approached the Gallatin County Attorney about

the possibility of a plea agreement in exchange for Bakeberg's

testimony and cooperation. An agreement was reached around 4:00

p.m., and shortly thereafter Bakeberg led authorities to the brushy

area near the Bozeman dump where he had hidden the mask and flannel

shirt worn in the robberies. These items were recovered sometime

between 4:00 p.m. and 6:00 p.m.

 The State did not inform Borchert's attorney that Bakeberg had

requested a plea agreement; that an agreement was in fact reached,

pursuant to which Bakeberg would testify against Borchert; and,

that Bakeberg had produced for authorities the mask and flannel

shirt worn during the robberies. However, Borchert's attorney did

eventually learn of this turn of events, by sheer coincidence:

Borchert's attorney dined the night of November 13, 1995, at the

same restaurant as Bakeberg's attorney.

 The next morning, Borchert moved to continue the trial. The

court denied the motion. After the trial, the jury found Borchert

guilty of two counts of robbery. Borchert appeals.

ISSUE 1

 Did the District Court abuse its discretion in denying

Borchert's motion to continue?

 A ruling on a motion to continue is subject to the district

court's discretion. State v. Sotelo (1984), 209 Mont. 86, 90, 679

P.2d 779, 782; 46-13-202(3), MCA. We review discretionary

district court rulings to determine whether the court abused its

discretion. State v. Sullivan (1994), 266 Mont. 313, 324, 880 P.2d

829, 836.

 Section 46-13-202, MCA, governs motions for a continuance. 

The statute states:

 Motion for continuance. (1) The defendant or the

 prosecutor may move for a continuance. If the motion is

 made more than 30 days after arraignment or at any time

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-310%20Opinion.htm (4 of 9)4/11/2007 1:51:34 PM
96-310

 after trial has begun, the court may require that it be

 supported by affidavit.

 (2) The court may upon the motion of either party or

 upon the court's own motion order a continuance if the

 interests of justice so require.

 (3) All motions for continuance are addressed to the

 discretion of the trial court and must be considered in

 the light of the diligence shown on the part of the

 movant. This section must be construed to the end that

 criminal cases are tried with due diligence consonant

 with the rights of the defendant and the prosecution to

 a speedy trial.

In addressing Borchert's motion to continue, the court was to

consider "the interests of justice" and "the diligence shown by the

movant." Borchert argues that he clearly met these two elements,

and that the court therefore abused its discretion in denying his

motion to continue. We agree.

 Borchert specifies several bases for his contention that the

interests of justice required that his motion to continue be

granted. First, Borchert explains that his defense had centered on

his and Bakeberg's maintenance of innocence. This defense,

Borchert argues, was reasonably relied upon. Up until the point at

which the plea agreement was reached, Bakeberg maintained that

neither he nor Borchert was involved in the robberies. There was

no one, other than Bakeberg, who could positively place Borchert at

the scenes of the robberies. Moreover, up until the point at which

the plea agreement was reached, the State had the wrong mask in its

possession. Further, Borchert contends that much of the evidence

prior to November 13, 1995, pointed to Bakeberg and possibly Tim

Craig's son Shawn as the likely culprits, but not Borchert. To

this end, Borchert explains that the shoes which matched the shoe

print on the counter in the Western Heritage Inn were taken from

Bakeberg, not Borchert, and that Shawn Craig, whose testimony was

generally inconsistent, provided the only explanation for where the

.357 was ultimately found; Shawn explained that he accompanied

Borchert on the night of October 23, 1993, to Hyalite reservoir,

where he saw Borchert throw the pistol toward the water. Borchert

argues, and we agree, that Bakeberg's last minute confession

eviscerated Borchert's planned defense strategy: Bakeberg placed

Borchert at the scenes of the robberies, described Borchert as

wearing the mask and flannel shirt and brandishing the .357 during

the robberies, divulged to the police the location of the mask and

the flannel shirt, and explained that on the night of the robberies

he allowed Borchert to wear his Converse Allstars gym shoes.

 Furthermore, Borchert contends that there was not enough time,

between the point at which his attorney fortuitously learned of

Bakeberg's plea agreement and the beginning of trial, in which to

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-310%20Opinion.htm (5 of 9)4/11/2007 1:51:34 PM
96-310

construct a new defense strategy to replace the one which took "60

hours" to construct and only a few hours to destroy. The

difficulty in creating a reasonable defense in just a few hours,

under these circumstances, on the eve of trial, is apparent. In

any event, Borchert's contention here is supported by this Court's

decision in Sotelo, where we concluded that the district court

abused its discretion in denying a motion to continue filed by an

attorney who had been appointed counsel one month before trial. 

Sotelo, 679 P.2d at 782. We determined that the attorney's motion

should properly have been granted, because the attorney could not

reasonably have constructed a sufficient defense in the time

available to him. Sotelo, 679 P.2d at 781-82. Just as we

considered the particular circumstances in reaching our decision in

Sotelo, we conclude here that Borchert's attorney could not

possibly have constructed, or more precisely, reconstructed, a

sufficient defense, and, in that respect, provided effective

assistance of counsel, under the circumstances of this case. The

relationship between the importance of effective assistance of

counsel, the court's affirmative duty to foster that degree of

assistance, and the propriety of granting a defendant's motion to

continue, is clearly stated in this Court's previous decisions. 

See, e.g., State v. Lundblade (1984), 213 Mont. 420, 424, 691 P.2d

831, 833 (court abused discretion in denying continuance, where

appointed counsel had no time in which to prepare a defense,

resulting in violation of defendant's right to a fair trial and

effective assistance of counsel); State v. Fife (1980), 187 Mont.

65, 70-71, 608 P.2d 1069, 1072-73 ("close question" regarding

motion to continue should be resolved in favor of defendant in

order to ensure fair trial); State v. Blakeslee (1957), 131 Mont.

47, 54-55, 306 P.2d 1103, 1107 (court has an affirmative duty "to

make the appointment of counsel effective, i.e., to give courtappointed counsel a reasonable time for the preparation of his case

after he has been appointed"). 

 Finally, Borchert points out that the State actually concurred

in the motion to continue. During argument before the court

regarding the motion to continue, the then-Deputy County Attorney

stated:

 If the grounds [for the motion] are that [Borchert's]

 strategy now has changed, based on what Mr. Bakeberg did

 yesterday and the physical evidence that he led us to

 about 6:00 p.m. last night, I don't object to that.

The State's concurrence both in the motion and Borchert's grounds

therefor lends considerable support to Borchert's argument that his

motion to continue should, in the interests of justice, have been

granted, while at the same time relieves us of considering the

issue of potential inconvenience to the State were the motion

granted. We conclude that the interests of justice required that

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-310%20Opinion.htm (6 of 9)4/11/2007 1:51:34 PM
96-310

Borchert's motion to continue be granted.

 Borchert also provides support for his contention that his

attorney exercised due diligence. Borchert's attorney informed the

court that she spent 60 hours preparing for trial. She also

explained that she represented Bakeberg at his detention hearing

(she later withdrew) and at that time Bakeberg indicated he was not

a participant in the robberies; that she interviewed Bakeberg some

six weeks prior to trial, at which time he continued to deny any

involvement; and, that she confirmed with Bakeberg's attorney one

more time before trial that Bakeberg's testimony would comport with

his consistent claim of innocence. Borchert's attorney did all

that she could to "cover all the bases" in preparation for trial;

the State's claim to the contrary is without merit. Borchert's

attorney could not reasonably have expected nor been prepared for

what she inadvertently discovered while out to dinner the night

before trial. In this regard we note that the State has an

obligation to promptly disclose to defense counsel the existence of

additional information or material, 46-15-327, MCA, but there is

no indication in the record that the State made any effort to

notify Borchert's attorney of Bakeberg's change of heart. In State

v. Timblin (1992), 254 Mont. 48, 834 P.2d 927, where the State

failed to disclose to the defense changes in a rape victim's

version of the crime, changes of which the defense was unaware

until the day of trial, we reversed the district court's denial of

Timblin's motion to continue, stating that "[i]n this instance, due

to the lack of notice of changed testimony, a continuance would

have been proper." Timblin, 834 P.2d at 928.

 The circumstances of this case establish that Borchert's

request for a continuance was reasonable, that a continuance was in

the interests of justice, and that Borchert's attorney exercised

due diligence. As we stated in Sotelo:

 If counsel is diligent yet has not been afforded

 sufficient time to prepare a defense, the accused's

 specific rights have been violated and his general right

 to a fair trial has been denied.

 ....

 [W]hen a continuance is requested, and that request is

 reasonable given all the relevant factors including

 defendant's right to a fair trial and effective

 assistance of counsel, it constitutes abuse of discretion

 for the court to refuse to grant the continuance.

Sotelo, 679 P.2d at 782. We hold that the District Court abused

its discretion in denying Borchert's motion to continue.

ISSUE 2

 Was Borchert denied effective assistance of counsel when his

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-310%20Opinion.htm (7 of 9)4/11/2007 1:51:34 PM
96-310

co-defendant confessed on the date set for trial, creating a

conflict of interest because his counsel previously represented the

co-defendant when he maintained his innocence?

 Borchert argues that he was denied effective assistance of

counsel because of a conflict of interest created by Bakeberg's

last minute confession. Borchert explains that because his counsel

previously represented Bakeberg at Bakeberg's detention hearing,

creating an attorney-client relationship with him, counsel was

later hindered in her cross-examination of Bakeberg at trial. The

State argues, however, that Borchert cannot meet the test for

ineffective assistance of counsel due to conflict of interest that

this Court adopted in State v. Christenson (1991), 250 Mont. 351,

355, 820 P.2d 1303, 1306.

 We will not engage in a full analysis of the merits of these

arguments; our decision to reverse and remand for a new trial has

already been made, based on the District Court's error in denying

Borchert's motion to continue. Therefore, our resolution of this

issue is embodied in the following directive: at Borchert's

retrial, if Borchert waives, on the record, the alleged conflict of

interest, his present counsel may continue to represent him; if,

however, Borchert refuses to waive the conflict, and he and his

present counsel are unwilling to continue the representation, the

court must appoint new counsel for Borchert.

CONCLUSION

 The District Court abused its discretion in denying Borchert's

motion to continue, and on that ground this matter is reversed and

remanded for a new trial. We note Borchert's claim of ineffective

assistance of counsel due to conflict of interest, and therefore

direct the District Court on remand as follows: if Borchert waives,

on the record, the alleged conflict of interest, his present

counsel may continue to represent him; if, however, Borchert

refuses to waive the conflict, and he and his present counsel are

unwilling to continue the representation, the court must appoint

new counsel for Borchert.

 Reversed and remanded for a new trial.

 /S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-310%20Opinion.htm (8 of 9)4/11/2007 1:51:34 PM
96-310

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-310%20Opinion.htm (9 of 9)4/11/2007 1:51:34 PM