NO. 82-195 

IN THE SUPREME COURT OF THE STATE OF FlONTANA 

1983 

STATE OF MOLJTANA, 

Plaintiff and Respondent, 

JOHN D. LONG, a/k/a 

WAYNE ARLO HALL, SR., 

Defendant and Appellant. 

APPEAL FROpi: District Court of the Sixteenth Judicial District, 

In and for the County of Rosebud, 

The I-Ionorable Alfred B. Coate, Judge presiding. 

COUidSEL OF RECORD: 

For Appellant: 

Leo Gallagher, Helena, Montana 

For Respondent : 

Mon. Mike Greely, Attorney General, Helena, Montana 

John S. Forsythe, County Attorney, Forsyth, Montana 

Submitted on Briefs: June 9, 1983 

Decided: September 29, 1983 

Filed: SEP 2 9 1983 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant appeals from a conviction of felony arson 

following jury trial in the Sixteenth Judicial District 

Court, Rosebud County. We affirm. 

Defendant raises two issues: 

(1) Did the District Court err in refusing to grant 

defendant's second request that a new attorney be appointed 

to represent him, after new counsel had previously been 

appointed? 

(2) Was defendant denied effective assistance of 

counsel because of insufficient communication between 

defendant and court-appointed counsel? 

In September 1981, defendant was working on the Brewer 

ranch near Forsyth, Montana. He was living in a trailer home 

owned and provided to him by his employers. Defendant was 

fired by the Brewers and shortly thereafter evicted from the 

trailer when he refused to leave. The day after defendant 

was evicted, the trailer was destroyed by an explosion and 

fire. Defendant's automobile was seen by witnesses at the 

trailer immediately before the blast and speeding away 

immediately after. Defendant had stated he intended to 

destroy the trailer. He was charged with and convicted of 

arson. He was sentenced to ten years incarceration and five 

years were suspended. 

Garry P. Bunke of Forsyth was appointed to represent 

defendant. Defendant pleaded not guilty. His motion for 

reduction of bail was denied, but his motion for psychiatric 

evaluation at Warm Springs was granted. At the omnibus 

hearing, counsel indicated defendant would present an alibi 

or insanity defense. But the defendant was found competent 

and capable of assisting in his own defense. At trial, the 

State's evidence established that although defendant had been 
in another town the day before the fire, he had been seen at 

the trailer the night before and the day of the fire. 

In November and early December defendant wrote two 

letters to Judge Coate complaining about his attorney. He 

claimed Bunke was not adequately representing him and that 

Bunke had a conflict of interest because he had previously 

represented some local law enforcement officers in personal 

matters. A hearing on defendant's request was held December 

4, 1981. The Court removed Bunke as defense counsel and 

appointed John Houtz to represent defendant. Defendant 

nonetheless said he would write the Bar Association regarding 

the matter. 

Defendant wrote Judge Coate again on December 21, 1981, 

complaining that because Houtz was a partner of Bunke he 

should also be replaced, or defendant should be allowed to 

represent himself. In fact, Bunke and Houtz shared office 

space, but were not partners. The Court nonetheless ordered 

a hearing on defendant's request, which was held December 30, 

1981. Defendant claimed he had received no legal advice from 

either attorney and that he thought unspecified additional 

actions should have been taken in his behalf. Judge Coate 

asked defendant for specific facts to show counsel was not 

adequately representing him. Defendant claimed that no one 

had explained the arson charge or his constitutional rights, 

even though Judge Coate had previously explained these 

matters to defendant. Houtz detailed the substantial work he 

had done on defendant's case. Defendant's request for new 

counsel was denied and a plea agreement was rejected by Judge 

Coate. 

It was disclosed later that at defendant's initial 

interview with Houtz, defendant refused to cooperate with 

Houtz, tried to overturn the table and stalked out of the 
room saying he wanted a new attorney. Rut defendant later 

contacted Houtz to discuss a plea change. Houtz apparently 

had advised defendant to plead guilty. This led to a plea 

agreement that was rejected by the Court at the December 30 

hearing because defendant claimed to lack the requisite 

knowledge. In preparing for trial, Houtz discussed with 

defendant affirmative defenses that might be available, but 

suggested that the best strategy was probably a general 

denial of the charge, forcing the State to prove all elements 

of the crime. 

Defendant wrote to Judge Coate again on January 7, 1982, 

saying that he still wanted a new attorney, that he 

"retracted" everything he had said while being represented by 

Houtz, and that he had "fired" Houtz on December 23, 1981. 

Defendant said if he wasn't given a new lawyer he would not 

"come to court or trial at all." He did attend trial, but 

there apparently had been little communication between the 

defendant and Houtz because defendant had refused to 

cooperate in preparation of the defense. The State's 

witnesses were cross-examined, but the defense did not call 

witnesses. Defendant was convicted after a three day trial 

and now appeals. 

Defendant first argues that the District Court erred in 

refusing to order substitution of defense counsel. He argues 

that his letters of protest made clear to the District Court 

that counsel could not render effective assistance, and that 

failure to replace Houtz was therefore error. We disagree. 

In Peters v. State (1961), 139 Mont. 634, 366 P.2d 158, 

we stated: 

"The State of Montana provides one charged with 

crime with the assistance of counsel to be 

appointed by the District Court and paid by public 
funds. We do not question, that upon a proper 

showing, such counsel could be discharged by the 

Court and a substitution made, where it appears 

that failure to do so would substantially impair or 

deny the right of such assistance of counsel, but 

such discharge or substitution cannot be made by a 

defendant, unless defendant is able to provide s;ch 

counsel at his own exDense or desires to undertake 

his own defense, bedause the discretion of the -- 

Court -- must be exercised, ---- and it is not bound to 

honor such requests without yood reason." peters, 

139 Mont. at 636, 366 P.2d at 159 (emphasis added). 

The District Court was correct in refusing to substitute 

counsel absent a showing that failure to do so would 

substantially impair or deny defendant's right to counsel. 

Defendant presented no specific details suggesting any lack 

of adequate representation by Houtz. Defendant's 

dissatisfaction with Houtz apparently stemmed from his 

erroneous belief that Houtz and Bunke were partners. Most of 

defendant's complaints were unrelated to the assistance of 

counsel issue. Consideration of requests to appoint new 

counsel is within the discretion of the District Court, and 

the determination of the District Court will be sustained 

absent an abuse of discretion. Good v. United States (9th 

Cir. 1967), 378 F.2d 934, 935. 

Defendant argues that the District Court ignored his 

pleas for appointment of a new attorney, thereby assuring 

that defendant would not receive assistance of an attorney 

familiar with defendant's version of the facts. The record 

shows, however, that the District Court took defendant's 

requests seriously. It ordered two hearings on the counsel 

issue. The first hearing resulted in appointment of new 

counsel as defendant had requested. The second hearing, on 

December 30, 1981, failed to establish a basis for replacing 

Houtz . After careful consideration, Judge Coate felt 

appointment of a third attorney was unwarranted. That the 

Court took defendant seriously is shown by the Court's 
refusal to accept defendant's change of plea after defendant 

claimed at that hearing to lack the requisite knowledge. 

Moreover, the statements of Houtz at that hearing supported 

the Court's determination that Houtz was rendering effective 1 

assistance. There was no showing that continued 

representation by Houtz would substantially impair 

defendant's right to counsel. 

The District Court did not err in refusing to appoint a 

third attorney to represent defendant. 

Defendant next argues that he was denied effective 

assistance of counsel. Defendant was clearly entitled to 

reasonably effective assistance of counsel under State v. 

Rose (Mont. 1980), 608 P.2d 1074, 1081-82, 37 St.Rep. 642, 

649-50. Defendant argues that because he and Houtz did not 

communicate there was no "meaningful relationship" between 

them, that this precluded Houtz from acting within the range 

of competence demanded of attorneys practicing criminal law, 

and that defendant was therefore necessarily denied effective 

assistance. We disagree. 

The United States Supreme Court rejected the "meaningful 

relationship" argument in the recent case of Morris v. 

Slappy, No. 81-1095 (U.S. April 20, 1983). There, 

defendant's original court-appointed counsel was unexpectedly 

hospitalized about one week before trial and a new attorney 

was substituted. Defendant refused to cooperate with the 

second attorney despite the attorney's thorough preparation 

and statements to the Court that he was ready for trial. The 

Ninth Circuit Court of Appeals held that the Sixth Amendment 

right to counsel guarantees a "meaningful attorney-client 

relationship". The Supreme Court reversed, stating: 
"The Court of Appeals' conclusion that the Sixth 

Amendment right to counsel 'would be without 

substance if it did not include the right to a 

meaningful attorney-client relationship,' 649 F.2dI 

at 720 (emphasis added), is without basis in the 

law. No authority was cited for this novel 

ingredient of the Sixth Amendment guarantee of 

counsel, and of course none could be. No court 

could possibly guarantee that a defendant will 

develop the kind of rapport with his 

attorney - privately retained or provided by the 

public - that the Court of Appeals thought part of 

the Sixth Amendment guarantee of counsel. 

Accordingly, we reject the claim that the Sixth 

Amendment guarantees a 'meaningful relationship' 

between an accused and his counsel." Morris v. 

Slappy, No. 81-1095, slip op. at 11-12 (U.S. April 

20, 1983) (footnote omitted) . 

Lack of communication between defendant and defense counsel 

is not of itself basis for reversal on grounds of ineffective 

assistance of counsel. 

Defendant cites various provisions of the ABA Standards 

in support of his argument. Yet, nothing in the record shows 

that counsel omitted anything required by the ABA Standards 

or the Sixth Amendment. Defendant concedes that no errors 

were committed by trial counsel. The record shows that 

defendant received not only adequate, but diligent and 

conscientious representation. This representation included 

filing of various motions with supporting memoranda, 

questioning the State's witnesses before and during trial and 

sentencing, pre-trial investigation, numerous interviews with 

defendant and meetings with the prosecutor. The essence of 

the attorney-client relationship is that the attorney provide 

the client with meaningful representation. There is no 

showing that Houtz failed in this case to provide defendant 

with such representation. 

Defendant claims that because Houtz did not know his 

version of the facts, evidence which favored the defendant's 

story was not presented at trial. But defendant's claim that 

an available alibi defense was not presented is unsupported 
by the record or other appropriate documentation. At trial, 

evidence that defendant claimed to be in another town at the 

time of the crime was clearly refuted by evidence that 

defendant was seen at the trailer the night before and the 

day of the crime. Defendant further argues that it is 

unknown what evidence might have been presented if Houtz had 

been familiar with defendant's story. But defendant alone 

is responsible for this omission, if in fact any omission 

occurred. Significantly, defendant offers no facts which 

could have been presented at trial but were not. 

We have previously rejected ineffective assistance 

claims made by defendants who refused to cooperate in their 

own defense. In State v. Lopez (Mont. 1980), 605 P.2d 178, 

37 St.Rep. 36, the District Court refused to substitute 

counsel after defense counsel submitted an affidavit stating 

that he was getting no cooperation from defendant in 

preparing a defense, that he would be unable at trial to do 

little more than sit at the counsel table, and that he would 

have difficulty representing defendant, although he would do 

his best despite defendan.tls refusal to cooperate. We 

rejected defendant's claim that the District Court's failure 

to remove defense counsel denied defendant a fair trial. We 

found that defense counsel had done his best under the 

circumstances and had provided an adequate defense. Because 

the problem was caused by the defendant's refusal to 

cooperate, we applied the general rule that ". . . a party 

who participates in or contributes to an error cannot 

complain of it. l1 605 P.2d at 181, 37 St.Rep. at 40. 

Similarly, in State v. Miller (1977), 173 Mont. 453, 568 P.2d 

130, we held that the defendant could not claim ineffective 

assistance of counsel where the problems he complained of 
resulted from his own actions. 173 Mont. at 457, 568 P.2d at 

132-33. 

Here, it is undisputed that the defendant refused to 

cooperate with Houtz. The record shows that defendant 

refused to accept the District Court's determination that he 

was not entitled to appointment of a third attorney. As in 

Lopez, we will not allow the defendant to complain of 

problems caused by his refusal to cooperate with defense 

counsel. 

We hold that the lack of communication between defendant 

and Houtz did not deny defendant effective assistance of 

counsel. The record clearly shows that defendant received 

effective assistance of counsel. Moreover, any lack of 

communication between Houtz and defendant was caused by 

defendant's refusal to assist in his own defense. 

Affirmed. 

We concur: 

 ALP. Q~ 

Chief Justice 

Justic