Submitted on Briefs: September 26, 2013
APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDC 2011-157 Honorable Kathy Seeley, Presiding Judge
For Appellant Wade Zolynski, Chief Appellate Defender; Kristen L. Larson, Assistant Appellate Defender; Helena, Montana
For Appellee Timothy C. Fox, Montana Attorney General; Micheal S. Wellenstein, Assistant Attorney General, Leo J. Gallagher, Lewis and Clark County Attorney; Helena, Montana
Laurie McKinnon Justice
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 The State charged Thomas Jefferson Petersen in the First Judicial District Court, Lewis and Clark County, with driving a motor vehicle while under the influence of alcohol or drugs, a felony, in violation of § 61-8-401, MCA, and unlawful possession of an open alcoholic beverage container in a motor vehicle, a misdemeanor, in violation of § 61-8-460, MCA. These offenses were committed on or about October 18, 2010.
¶3 Petersen was assigned a public defender and entered pleas of not guilty. Trial was held December 13, 2011, and the jury found Petersen guilty of both charges. On the DUI offense, the District Court sentenced him to the Montana Department of Corrections for 13 months, followed by a 5-year suspended sentence. On the open-container charge, the court imposed a $100 fine and surcharges of $75. Petersen now appeals.
¶4 The first issue Petersen raises is that the District Court did not conduct an adequate initial inquiry into his pretrial request for new counsel. Petersen sent a letter to the court, dated December 9, 2011, expressing "a great deal of concern about my counsel." He alleged that counsel was not ready for trial and did not seem to want to defend him. Petersen asserted that he had asked counsel to do "several things" for him, but that counsel had refused to do them and had threatened Petersen. Petersen opined that if counsel was working on his case at all, "it is not for my side." He stated that he had lost all trust in his counsel and asked to be provided with new counsel.
¶5 On the morning of trial, outside the presence of the prospective jurors and the prosecutor, the District Court acknowledged receipt of Petersen's letter but noted that Petersen had failed to provide "anything specific" in the letter. Petersen replied that his "specific" concern related to the bottle of whiskey found in the van he had been driving when he was stopped. He claimed the bottle had not been fingerprinted, and he opined that one or more police officers had lied or tampered with evidence. The court observed that Petersen could make this argument to the jury, but that it was not a sufficient basis for replacing his counsel. The court asked Petersen's counsel (Morgan) directly whether he was prepared for trial, and Morgan stated that he was.
¶6 The District Court then advised Petersen that he had a right to counsel, but not a right to pick his counsel. The court found that, "at least from what has been presented here, [Morgan] is providing you with a defense." The court told Petersen that he could either proceed with Morgan or represent himself. The court apprised Petersen of the "dangers and disadvantages" of representing himself. The court noted that it had reviewed the file and "it looks like a tough case for the defense." Morgan also interjected during this colloquy that "it's very dangerous to proceed pro se" and "my advice, on the record, is that that's not an appropriate move."
¶7 Petersen indicated that he did not want to represent himself. He maintained, however, that he had the right to put on a defense and call witnesses. In addition to the fingerprinting issue mentioned above, he complained that "I see no witnesses here on my behalf. They never even asked me about witnesses, so I assumed they were doing some sort of investigation." The District Court asked Petersen whether he had some witnesses he wanted to call, and the following colloquy ensued:
THE DEFENDANT: Well, I certainly think that the little gal that works at the AAA Towing should be called, because when they towed the van, they thought it was for a wreck, and it was impounded. And the officer said it wasn't impounded. And ...