No. 91-134 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDAVID JAMES CHRISTENSON, "JV 13 '1994 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Edward G. Beaudette, Knight, Dahood, McLean & 

Everett, Anaconda, Montana. 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, 

Montana; Barbara Harris, Assistant Attorney 

General, Helena, Montana; Robert L. Deschamps, 

County Attorney, Missoula, Montana. 

Filed: 

Submitted on briefs: August 1, 1991 

Decided: November 19, 1991 0 ,," ,.-- 

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Clerk 
Justice Karla M. Gray delivered the Opinion of the Court. 

The defendant, David James Christenson, appeals his 

convictions of criminal possession of cocaine, criminal possession 

of methamphetamine and criminal possession of dangerous drug 

paraphernalia following a jury trial in the District Court of the 

Fourth Judicial District, Missoula County. We affirm. 

The defendant raises the following issues: 

1. Was the defendant denied effective assistance of counsel 

arising from a conflict of interest of trial counsel? 

2. Was the defendant denied effective assistance of counsel 

as a result of trial counsel's stipulation to the admission of a 

videotape of the crime scene into evidence? 

3. Did the District Court err by allowing the jury to view 

the videotape during deliberations? 

On September 5, 1989, a search warrant was executed at 911 

Charlo, Missoula, Montana, by members of the Missoula County 

Sheriff's Department, the Missoula City Police Department and the 

Montana Criminal Investigation Bureau. The defendant answered the 

door to the residence and, upon entry, officers found Robert L. 

Peterson exiting one of the bedrooms. By checking identification 

and paperwork in the two bedrooms of the residence, officers 

established that one bedroom was occupied by the defendant and the 

other was occupied by Peterson. 

Both the defendant and Peterson were arrested and transported 

to jail shortly after officers arrived. The officers continued 

their search of the residence and, as they conducted their search, 

2 
a videotape was made of the items found and the rooms in which they 

were found. 

In the bedroom occupied by the defendant, officers found the 

defendant's wallet, including his driver's license, and an envelope 

and numerous prescription pill bottles with his name on them. On 

top of the dresser, in plain view, Detective Larry Jacobs found a 

plastic bag containing white powder residue which was later 

identified as cocaine. In plain view on another dresser, Detective 

Jacobs found a spoon with white powder on it which was later 

identified as methamphetamine. Detective Jacobs also found a pipe 

in a dresser drawer. Cannabinol, a substance contained in 

marijuana, later was determined to be in the residues in the pipe. 

Detective Jacobs also found thirteen bindles, or folded paper 

containers, in the dresser. Three of the bindles contained 

methamphetamine. Numerous other items were found in the 

defendant's and Peterson's bedrooms, including additional dangerous 

drugs, scales, a police scanner and loaded weapons. 

On September 12, 1989, the defendant was charged by 

information with criminal possession of Valium, criminal possession 

of methamphetamine with intent to sell, and criminal possession of 

dangerous drug paraphernalia. An amended information was filed on 

June 1, 1990, charging the defendant with criminal possession of 

cocaine, criminal possession of methamphetamine with intent to sell 

and criminal possession of dangerous drug paraphernalia. 

A jury trial was held on October 29 through 31, 1990 on the 

charges stated in the amended information. During trial, the 

3 
defendant's trial counsel, William Dee Morris, stipulated to the 

admission of the videotape into evidence with the provision that it 

be played without sound. After the jury began its deliberations, 

it requested a video cassette recorder in order to view the 

videotape. The court allowed the jury to view the videotape 

without volume in the jury room. 

On October 31, 1990, the jury found the defendant guilty of 

criminal possession of cocaine, a lesser included offense of 

criminal possession of methamphetamine, and criminal possession of 

dangerous drug paraphernalia. Following trial, the defendant 

retained new counsel. The defendant was sentenced on December 6, 

1990 to five years imprisonment in the Montana State Prison on the 

first two counts and to six months in the Missoula County Jail on 

the third count. The sentences on the first and third counts are 

to run concurrently: the sentence on the second count is to run 

consecutively and was suspended on certain terms and conditions. 

The defendant appeals his convictions. 

I 

Was the defendant denied effective assistance of counsel 

arising from a conflict of interest of trial counsel? 

The Sixth Amendment guarantee of effective assistance of 

counsel is comprised of two correlative rights. The first is the 

right to counsel of reasonable competence. McMann v. Richardson 

(1970), 397 U.S. 759, 770-71, 90 S.Ct. 1441, 1448-49, 25 L.Ed.2d 

763, 773. The second is the right to counsel's undivided loyalty. 

Wood v. Georgia (1981), 450 U.S. 261, 271-72, 101 S.Ct. 1097, 1103- 

4 
04, 67 L.Ed.2d 220, 230. 

The United States Supreme Court has articulated several 

standards by which to determine whether these rights have been 

violated. General claims of ineffective assistance of counsel 

involving challenges to counsel Is competency or performance are 

reviewed under the two-pronged test articulated in Strickland v. 

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. 

However, in cases raising claims of ineffective assistance of 

counsel due to conflicts of interest, the Strickland Court retained 

the standard articulated in Cuyler v. Sullivan (1980), 446 U.S. 

335, 100 S.Ct. 1708, 64 L.Ed.2d 333. Under Cuvler, a defendant 

must show: (1) that counsel actively represented conflicting 

interests, and (2) that an actual conflict of interest adversely 

affected counsel's performance. Cuyler, 446 U.S. at 350. 

Where an ineffective assistance of counsel claim is based on 

an alleged conflict of interest, rather than a lack of reasonable 

competence, prejudice is presumed if the defendant satisfies both 

prongs of the Cuvler test. Strickland, 466 U.S. at 692. In such 

a situation, the presumption of prejudice is warranted because the 

duty of loyalty, "perhaps the most basic of counsel's duties," is 

breached and "it is difficult to measure the precise effect on the 

defense of representation corrupted by conflicting interests." 

Strickland, 466 U.S. at 692. Although Cuvler involved a conflict 

of interest between clients, the presumption of prejudice extends 

to conflicts between the client and his or her counsel's personal 

interests. Mannhalt v. Reed (9th Cir. 1988), 847 F.2d 576, 580. 

5 
A short time after the defendant's convictions in the District 

Court, his trial counsel, William Dee Morris, was charged by 

federal authorities with conspiracy to manufacture and distribute 

methamphetamine, income tax fraud arising from the sale of 

methamphetamine and other associated criminal activity. The 

defendant contends that because of Morris' "apparent participation 

in the use, manufacture and distribution of methamphetamine at the 

same time" he was representing the defendant, the first prong of 

the Cuvler test is satisfied because an actual conflict of interest 

existed. The defendant cites Mannhalt, in which the Ninth Circuit 

Court of Appeals held that an actual conflict of interest exists 

when an attorney is accused of crimes similar or related to those 

of his client, in support of his argument. Mannhalt, 847 F.2d at 

581. 

The defendant asserts that the second prong of the Cuvler test 

can be presumed from the overall lack of aggressiveness shown by 

trial counsel in cross-examination and in counsel's failure to 

establish critical facts in presentation of the defense. He argues 

that a reading of the transcript demonstrates the lack of a 

coherent defense strategy and an avoidance of inquiry into issues 

such as Robert Peterson's source for the methamphetamine which he 

testified he brought into the defendant's residence. 

In Mannhalt, the defendant, Guenter Mannhalt, was tried on 

charges of conspiracy to commit robbery, robbery, attempted 

robbery, and possession of stolen property. Before trial, a 

witness for the prosecution told police officers that Mannhalt's 

6 
trial counsel had purchased stolen property. Counsel became aware 

of this accusation while preparing for Mannhalt's trial and, 

although he discussed the accusation with Mannhalt, he did not 

point out a potential conflict of interest. Counsel then 

represented Mannhalt at trial and Mannhalt was convicted. In 

Mannhalt's claim for federal habeas corpus relief, the Ninth 

Circuit Court of Appeals held that the first prong of the Cuvler 

test was satisfied, stating: 

We find that when an attorney is accused of crimes 

similar or related to those of his client, an actual 

conflict exists because the potential for diminished 

effectiveness in representation is so great. For 

example, a vigorous defense might uncover evidence of the 

attorney's own crimes, and the attorney could not give 

unbiased advice to his client about whether to testify or 

whether to accept a guilty plea. 

Mannhalt, 847 F.2d at 581. 

In this case, the defendant relies solely on the fact that 

shortly after his convictions in District Court, his trial counsel 

was charged by federal authorities with similar criminal offenses. 

Although the defendant asserts that Morris' participation in drugrelated offenses during the time of Morris' representation is 

apparent, he does not allege that a conflict of interest existed 

because the basis of the federal charges were acts committed by 

Morris during Morris' representation or that Morris was under 

investigation by federal authorities during Morris' representation 

of him. In Mannhalt, trial counsel's personal interests were 

conclusively shown to be at odds with those of the defendant durinq 

the time of his representation of the defendant because he was 

accused of a crime similar or related to those of the defendant 

7 
during that time. Therefore, an actual conflict of interest 

existed. However, we do not read Mannhalt to imply that an actual 

conflict of interest exists where the only basis for the alleged 

conflict is a similar but unrelated charge against trial counsel 

occurring after the defendant was tried and convicted. In such a 

situation, whether counsel actually represented conflicting 

interests is left to speculation. At best, a "possibility" of a 

conflict of interest exists which "is insufficient to impugn a 

criminal conviction." Cuvler, 446 U.S. at 350. We are not 

convinced that an actual conflict existed in this case between the 

defendant and his trial counsel. 

Even assuming arcruendo that an actual conflict of interest 

existed between trial counsel and the defendant, the defendant 

cannot establish that the actual conflict of interest adversely 

affected trial counsel's performance under the second prong of the 

Cuvler test. Nothing in the record suggests that Morris' method of 

cross-examination or his defense strategy was in any way motivated 

by a desire to protect his own personal interests at the 

defendant's expense. In addition, Morris' defense strategy at 

trial was to show that the defendant had invited Robert Peterson to 

stay with him at his residence while Peterson was experiencing 

marital difficulties, and that the defendant was unaware of the 

fact that Peterson had brought the drugs and related paraphernalia 

into the residence. Peterson's own testimony supported that claim. 

The State offered two witnesses, Detective Jacobs, who participated 

in the arrest of the defendant and the search of his residence, and 

8 
Judith Hoffmann, a forensic scientist at the Montana State Criminal 

Laboratory, who examined and analyzed evidence seized from the 

defendant's residence. Much of their testimony concerned the drugs 

and related paraphernalia which was found and the locations within 

the residence in which they were found, all of which was damaging 

to the defendant. In light of the State's evidence, trial 

counsel's decision not to conduct extensive cross-examination was 

a tactical decision within his discretion. Extensive crossexamination would have run the risk of eliciting cumulative or 

additional damaging testimony, further harming the defendant's 

case. Given trial counsel's defense strategy, we see no reason why 

Peterson's source of methamphetamine was critical to the 

defendant's case in any way, and the defendant has failed to 

demonstrate otherwise. 

We conclude that trial counsel's performance was not adversely 

affected by an actual conflict of interest and, thus, the defendant 

was not denied effective assistance of counsel under the standard 

set forth by the United States Supreme Court in Cuyler. 

I1 

Was the defendant denied effective assistance of counsel as a 

result of trial counsel's stipulation to the admission of the 

videotape of the crime scene into evidence? 

The defendant maintains that he received ineffective 

assistance of counsel in that trial counsel failed to vigorously 

and competently oppose the admission of the videotape into 

9 
evidence. In evaluating general claims of ineffective assistance 

of counsel, this Court utilizes the two-pronged test set forth in 

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 

L.Ed.2d 674. First, counsel's performance must be deficient. To 

assess deficient performance, this Court employs the "'reasonably 

effective assistance' test of whether a defendant's counsel acted 

within the range of competence demanded of attorneys in criminal 

cases. [Citation omitted.]'' State v. Elliott (1986), 221 Mont. 

174, 178, 717 P.2d 572, 575. Second, counsel's deficient 

performance must have so prejudiced the defendant as to deprive the 

defendant of a fair trial. State v. Leavens (1986), 222 Mont. 473, 

475, 723 P.2d 236, 237. The standard for evaluating prejudice is 

whether a reasonable probability exists that but for counsel's 

deficient performance, the trial's outcome would have been 

different. Leavens, 222 Mont. at 475, 723 P.2d at 237. 

In this case, the testimony of Detective Jacobs was used as 

foundation for the admission of the videotape into evidence. The 

defendant claims that the videotape was inadmissible because its 

"authenticity or correctness'' was not established in that Detective 

Jacobs' statement that the videotape was made during the search of 

the premises is false. He states that "[tlhe tape itself clearly 

establishes that the videotaping was not of the search in progress 

but rather a documentation of the search results after the initial 

discovery of what was purported to be evidence of crime." The 

defendant contends that the videotape does not show the condition 

of the premises before the search began and that it does not 

10 
accurately depict the circumstances of the search because it does 

not actually show the search in progress. The defendant argues 

that the prejudice he suffered is evident by the fact that the jury 

requested and was allowed to view the videotape during 

deliberations. 

Under Rule 901(a), M.R.Evid., the requirement of authentication or identification is satisfied “by evidence sufficient to 

support a finding that the matter in question is what its proponent 

claims.” In addition, the trial court judge has wide discretion in 

determining the adequacy of foundation for the admission of 

evidence. City of Missoula v. Forest (1989), 236 Mont. 129, 134, 

769 P.2d 699, 702. 

The record reflects that the videotape at issue shows the 

defendant’s residence in Missoula. More specifically, the bedrooms 

occupied by the defendant and Robert Peterson are shown at length; 

in addition, items of personal identification, dangerous drugs, 

drug paraphernalia, money, and weapons are displayed, some after 

they were moved by officers and others both before and after they 

were moved. However, the defendant’s argument that the videotape’s 

authenticity could not be established overlooks Detective Jacobs’ 

testimony as to how and when the videotape was made. Detective 

Jacobs testified that the videotape shows him searching the 

defendant’s bedroom; the videotape also shows items in the other 

bedroom because other officers in the search had the video camera 

operator move at various times to the other bedroom and tape items 

that they had found while Detective Jacobs continued his search. 

11 
To be authentic, the videotape in this case did not have to be 

filmed in a certain way or at a certain time. Neither the State 

nor Detective Jacobs asserted that the videotape showed the search 

in a step-by-step manner but rather asserted that the videotape 

documented items found in the residence. Given the purpose for 

which it was offered, the videotape was properly authenticated. In 

addition, the defendant's concern that the videotape did not fully 

show the premises prior to, during, and after the search goes to 

the weight of the evidence, which is in the exclusive province of 

the jury, and not to its admissibility. See State v. Armstrong 

(1980), 189 Mont. 407, 616 P.2d 341; State v. Laverdure (1990), 241 

Mont. 135, 785 P.2d 718. 

We also disagree with the defendant's assertion that the 

videotape was unduly prejudicial and, therefore, should have not 

been admitted into evidence. Because the videotape was shown to 

the jury without sound there was no verbal testimony by any person, 

only a view of the items later introduced at trial as evidence of 

the crimes charged. Thus, any possible prejudicial effect of the 

videotape was minimal. The videotape was probative to the issues 

involved in the case in that it served to corroborate and 

illustrate Detective Jacobs' testimony. The videotape was properly 

admitted into evidence. 

Not only has the defendant failed to show that trial counsel's 

performance was deficient, he has also failed to show that but for 

the admission of the videotape into evidence a reasonable 

probability exists that the outcome of the trial would have been 
different. There was substantial evidence, including the items of 

evidence and their locations in the residence as established by 

testimony at trial, of the defendant's possession of dangerous 

drugs and related paraphernalia. We hold that the defendant was 

not denied effective assistance of counsel as a result of trial 

counsel's stipulation to the admission of the videotape into 

evidence. 

I11 

Did the District Court err by allowing the jury to review the 

videotape during deliberations? 

The defendant asserts that he was prejudiced by the District 

Court allowing the videotape to be viewed by the jury during its 

deliberations. He argues that the videotape was unreliable and 

contained prejudicial information which was emphasized by the 

jury's opportunity to view the videotape again. In addition, 

citing People v. Montoya (Colo. App. 1989), 773 P.2d 623, the 

defendant contends that the videotape was testimonial in nature and 

argues that the jury was allowed to give undue weight to this 

testimonial evidf- wce. 

Section 46-16-504, MCA (1989), in effect at the time of the 

defendant's trial, states: 

Upon retiring for deliberation, the jury may take with 

them all papers which have been received as evidence in 

the cause, except depositions or copies of such papers as 

ought not, in the opinion of the court, to be taken from 

the person having them in his possession. The iurv mav 

also take with them any exhibits which the court may deem 

proper and notes of the proceedings taken by themselves. 

[Emphasis added. 3 

In State v. Morse (1987), 229 Mont. 222, 233, 746 P.2d 108, 115, we 

13 
found no error in allowing the jury to take audio tapes into the 

jury room, stating that "[jlust as with papers which have been 

properly admitted into evidence that are allowed in the jury room 

during deliberations, the tapes were evidence which at the 

discretion of the court could be allowed." Here, we have already 

concluded that the videotape was properly admitted into evidence. 

Having been properly admitted, the videotape was evidence which, at 

the discretion of the court, could be viewed by the jury during 

deliberations. 

We also note that Montova, cited by the defendant, is not 

applicable to the present case. Montova involved a videotaped 

statement to police given by a witness to a robbery. Analogizing 

the videotaped statement to a deposition, the Colorado Court of 

Appeals held that the trial court committed prejudicial error in 

allowing the jurors unrestricted, unsupervised access to the 

videotape during their deliberations, stating: 

[Blecause jurors may give undue weight to the testimony 

contained within a deposition which they take with them 

and may not accord adequate consideration to 

controverting testimony received from live witnesses, it 

is the universal rule that depositions may not be 

reviewed by a jury on an unsupervised basis. [Citations 

omitted. 3 

... 

For these reasons, we conclude that a trial court 

may allow jurors to review a videotape of a witness' 

previous statements, which has been admitted for 

substantive purposes, only under circumstances that will 

assure that such statements are not given "undue weight 

or emphasis." [Citation omitted.] 

Montova, 773 P.2d at 625-26. In the present case, the videotape of 

the crime scene documenting the evidence seized was played to the 

14 
jury without a sound track. As such, the videotape is analogous to 

a photograph or series of photographs. It is not akin to 

deposition testimony or other testimonial evidence which carries 

with it those dangers recited by the court in Montova. We conclude 

that the District Court did not abuse its discretion when it 

allowed the jury to review the videotape during deliberations. 

Af f inned. 

We concur: / 

15 
November 19, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Edward G. Beaudette 

KNIGHT, DAHOOD, McLEAN & EVERETT 

P.O. Box 727 

Anaconda, MT 59711 

Hon. Marc Racicot, Attorney General 

Barbara Harris, Asst. Atty. Gen. 

Justice Building 

Helena, MT 59620 

Robert L. Deschamps, I11 

Missoula County Attorney 

200 West Broadway 

Missoula, MT 59802 

ED SMITH 

CLERK OF THE SUPREME COURT