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 ,," 

### ,.-- ! '6 i< .I ! 4 i_:, ,o b ,!-/

.. -, 4 Ui -'8 LJb ""4' iClerkJustice 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 videotapewasmade of the items found and the rooms inwhich they
were found. In the bedroom occupied by the defendant, officers found the defendant's wallet, includinghisdriver'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. 

### Inplainview on anotherdresser,Detective Jacobs found a spoon with white powder on it which was later identified asmethamphetamine. DetectiveJacobs also found a pipe in a dresser drawer. Cannabinol, a substance contained in marijuana, laterwas 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 andPeterson's bedrooms, includingadditional dangerous drugs, scales, a police scanner and loaded weapons. On September 12, 1989, the defendant was charged by informationwith criminalpossessionofValium, criminalpossession ofmethamphetaminewith intent to sell, and criminalpossession of dangerous drug paraphernalia. An amended informationwas filed on June 1, 1990, charging the defendant with criminal possession of cocaine,criminalpossessionofmethamphetaminewith intentto 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

3defendant's trial counsel, William Dee Morris, stipulated to the admissionof thevideotape into evidencewith theprovision 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 criminalpossession of methamphetamine, and criminalpossession of dangerous drug paraphernalia. Following trial, the defendant retained new counsel. The defendant was sentenced on December 6, 1990 to fiveyears 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), 450U.S. 261, 271
-72, 101S.Ct. 1097, 1103-

404, 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 counselIs 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 counseldue 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 satisfiesboth prongs of the Cuvler test. Strickland, 466 U.S. at 692. In such


### a situation, thepresumption of prejudice iswarranted 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.

5A shorttime after thedefendant's convictions in theDistrict Court, his trial counsel, William Dee Morris, was charged by federal authoritieswith conspiracy to manufacture and distribute methamphetamine, income tax fraud arising from the sale of methamphetamine and other associated criminal activity. The defendant contends thatbecause ofMorris' "apparentparticipation in the use,manufacture and distribution ofmethamphetamine at the
same time" he was representing the defendant, the first prong of the Cuvler 

### test is satisfiedbecause an actual conflictof interest existed. The defendant citesMannhalt, inwhich theNinth 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. Thedefendantasserts that the secondprong 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 establishcritical facts inpresentationof thedefense. 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

6trial counsel had purchased stolenproperty. 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,avigorousdefensemightuncover evidence of the attorney's own crimes, and the attorney could not give unbiased advice tohis client aboutwhether 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 federalauthorities with similar criminal offenses. Although the defendant asserts thatMorris' 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 investigationby federal authoritiesduringMorris' representation of him. 

### In Mannhalt, trial counsel's personal interests were conclusivelyshowntobe at oddswith those of thedefendant durinq the time of his representation of the defendant because he was accused of a crime similar or related to those of the defendant 7during 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 suggeststhat 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 invitedRobert 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 twowitnesses,DetectiveJacobs,who participated in the arrest 

### of the defendant and the search of his residence,

### and

8Judith Hoffmann,a forensic scientistat theMontana StateCriminal Laboratory, who examined and analyzed evidence seized from the defendant's residence. Much of theirtestimony concerned thedrugs 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'sdefense strategy,we see no reasonwhy 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 performancewas not adversely affectedby anactual conflict of interestand, thus, thedefendant
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

9evidence. 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 performancemust have soprejudiced thedefendant as todeprive the defendant of a fairtrial. State

### v. Leavens (1986), 222Mont. 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 "authenticityor correctness''was not established inthatDetective Jacobs' statement that thevideotapewas made during the search 

### of the premises 

### is false. He states that "[tlhe tape itself clearly establishes that thevideotaping 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

10accurately depict the circumstances of the search because it does not actually show the search in progress. The defendant argues that theprejudicehe suffered is evidentby 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 supporta findingthat thematter in question iswhat 

### its proponent claims.” Inaddition, the trial court judgehaswide 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’sresidence inMissoula. More specifically,thebedrooms 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
weremoved. However, thedefendant’sargumentthat thevideotape’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 operatormove at various times to the other bedroom and tape items that they had found while Detective Jacobs continued his search.

11

### To be authentic,thevideotape in this casedid nothave to be filmed in a certain way or at a certain time. Neither the State nor DetectiveJacobs asserted that thevideotape 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 itwas offered,thevideotapewasproperly authenticated. In addition, the defendant's concern that thevideotape 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;Statev. 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 jurywithout soundtherewasnoverbal 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 illustrateDetective Jacobs'testimony. Thevideotape wasproperly admitted into evidence. Not onlyhas thedefendant 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 beendifferent. Therewas 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 thevideotapewas testimonial 

### innature 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 copiesof 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 takewith them any exhibitswhich the courtmay deem proper and notes of theproceedings taken by themselves.

[Emphasis added.

### 3 In State

### v. Morse (1987), 229 Mont. 222, 233, 746 P.2d 108, 115, we 13found 

### 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 beenproperly admitted,thevideotapewas evidencewhich, 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 jurorsmay 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 livewitnesses, 

### 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 substantivepurposes,onlyunder circumstances thatwill assure that such statements are not given "undueweight or emphasis." [Citation omitted.] Montova, 773 P.2d at 625

-26. 

### Inthepresent case,

### thevideotape of the crime scene documenting the evidence seized was played to the 14jurywithout a sound track. As such, thevideotape is analogous to a photograph or series of photographs. It is not akin to deposition testimony or other testimonial evidence which carries with 

### it thosedangers recited by the court inMontova. We conclude that the District Court did not abuse its discretion when it allowed the jury to review the videotape during deliberations. Affinned.

We concur: 

## /

15November 19, 1991 CERTIFICATE

### OFSERVICE 

### Iherebycertifythatthefollowingorderwassentby United Statesmail,prepaid, tothe followingnamed:
EdwardG.Beaudette KNIGHT,DAHOOD,McLEAN&EVERETT 

### P.O.Box727 Anaconda,MT 59711 Hon.MarcRacicot, AttorneyGeneral BarbaraHarris,Asst.Atty.Gen. JusticeBuilding Helena,MT 59620 Robert

### L.Deschamps,I11 MissoulaCounty Attorney 200WestBroadway Missoula,

### MT 59802 EDSMITH CLERK

### OFTHESUPREME COURT