                                No. 12458

         I N THE SUPREME COURT O THE STATE O M N A A
                                F           F OTN

                                   1973



THE STATE O MONTANA,
           F

                         P l a i n t i f f and Respondent,



MICHAEL BRAXTER JEFFREY and
LAWRENCE LEE DUNCAN,

                         Defendants and A p p e l l a n t s .



Appeal from:      District Court o f t h e Eleventh J u d i c i a l D i s t r i c t ,
                  Honorable Robert Keller, Judge p r e s i d i n g .

Counsel of Record:

    For Appellants :

           S a n d a l l , Moses and Cavan, B i l l i n g s , Montana
           Ralph Wright argued, B i l l i n g s , Montana
           Joseph F. Daley appeared, K a l i s p e l l , Montana

    F o r Respondent:

           Hon. Robert L. Woodahl, A t t o r n e y General, Helena,
            Montana
           J. C. Weingartner, A s s i s t a n t A t t o r n e y General, a r g u e d ,
            Helena, Montana
           H. James Oleson argued, County A t t o r n e y , K a l i s p e l l ,
            Montana.



                                            Submitted:          September 28, 1973

                                               Decided
                                                         ~ ) C T3 1 1973
Filed:    OCT 3 k 1973
Hon. R. D. M c P h i l l i p s , D i s t r i c t J u d g e , s i t t i n g i n p l a c e of M r .
J u s t i c e John Conway H a r r i s o n , d e l i v e r e d t h e Opinion of t h e C o u r t .



             T h i s i s a n a p p e a l by e a c h of t h e d e f e n d a n t s , Lawrence

Lee Duncan and Michael B r a x t e r J e f f r e y , h e r e i n a f t e r r e f e r r e d t o

a s Duncan and J e f f r e y i n d i v i d u a l l y o r a s d e f e n d a n t s c o l l e c t i v e l y ,
from c o n v i c t i o n s f o r t h e c r i m e of r a p e i n t h e d i s t r i c t c o u r t of

t h e e l e v e n t h j u d i c i a l d i s t r i c t v i n and f o r t h e County o f F l a t h e a d .
             I n t h i s case, four informations w e r e f i l e d a g a i n s t t h e

two d e f e n d a n t s .

             J e f f r e y was charged i n one i n f o r m a t i o n w i t h f o u r c o u n t s

of r a p e a g a i n s t a 17 y e a r o l d s i n g l e f e m a l e .       Two o f t h e s e c o u n t s

a l l e g i n g f o r c i b l e r a p e were d i s m i s s e d by t h e S t a t e a t t h e t i m e

of t r i a l .

             I n t h e second i n f o r m a t i o n f i l e d a g a i n s t J e f f r e y t h e r e

were two c o u n t s of r a p e and two c o u n t s of c r i m e a g a i n s t n a t u r e ,

o n e i n v o l v i n g f e l l a t i o and t h e o t h e r sodomy, a l l e g e d l y committed

a g a i n s t a 15 year o l d s i n g l e female.              One of t h e c o u n t s , w i t h
r e s p e c t t o f o r c i b l e r a p e , was d i s m i s s e d p r i o r t o t r i a l .
             Duncan was c h a r g e d i n one i n f o r m a t i o n w i t h two c o u n t s

of r a p e a g a i n s t t h e 1 7 y e a r o l d .      One of t h e c o u n t s , f o r f o r c i b l e

rape, w a s dismissed p r i o r t o t r i a l .
             I n t h e o t h e r i n f o r m a t i o n Duncan was c h a r g e d , as it r e -

l a t e d t o t h e 15 y e a r o l d , w i t h two c o u n t s o f r a p e , and one c o u n t

of c r i m e a g a i n s t n a t u r e .   The f o r c i b l e r a p e c o u n t w a s d i s m i s s e d

prior t o t r i a l .
             A t t h e t i m e of t r i a l a l l of t h e r a p e c o u n t s a g a i n s t de-

f e n d a n t s w e r e i n t h e n a t u r e o f what i s commonly r e f e r r e d t o a s
s t a t u t o r y rape.
             A l l of t h e a l l e g e d a c t s c u l m i n a t i n g i n t h e above d e s c r i b e d

c h a r g e s were a l l e g e d t o have t a k e n p l a c e a t t h e same t i m e and

p l a c e , namely, J u l y 1 7 , 1 9 7 2 , a t F l a t h e a d County, Montana.
        There is nothing to be gained in reciting all of the
sordid details involved in this cause.   It is sufficient that
we set forth that the two minor girls were picked up while
hitchhiking near Whitefish, Montana by the defendants.    They
were taken in a pickup truck by defendants to a point west of
Kalispell.    It was at this time and place that the acts com-
plained of in the informations took place.   The girls testified
that the acts of rape took place with each of them by each of
the defendants.   Each of the defendants testified that individ-
ually they did not have intercourse with either of the girls,
a i that each positively knew that the other did not have inter-
 rd
course with either of the girls.
        Obviously the jury did not believe all of defendants'
story and found each of them guilty of one count of rape.
        Defendants were acquitted on the other charges of rape
and crime against nature.
        The four informations mentioned above were consolidated
for trial without objection and both defendants were tried
together.    Each of the defendants retained the same counsel to
represent them during trial.
        Neither the sufficiency of the evidence nor the conduct
of the trial itself is before the Court here on appeal.   Defend-
ants list two specifications of error:
        1.   Were the defendants in this consolidated case denied
effective counsel in violation of the Fifth, Sixth and Fourteenth
Amendments to the Constitution of the United States?
        2.   Whether the crime against nature is unconstitutional
as being so vague, ambiguous, and uncertain that it cannot be
effectively charged or prosecuted?
        Defendants, in discussing the first specification of error,
would have this Court adopt a different rule than that which has
been h e r e t o f o r e a d o p t e d and f o l l o w e d a s i t r e l a t e s t o t h e

e f f e c t i v e n e s s of c o u n s e l i n r e p r e s e n t i n g two o r more d e f e n d a n t s

i n a c r i m i n a l c a s e growing o u t of t h e same s e t of f a c t s .                  It

i s t h e a p p a r e n t c o n t e n t i o n of d e f e n d a n t s t h a t t h i s C o u r t must
and s h o u l d a d o p t what h a s been c a l l e d t h e " p e r se" t h e o r y .                See

Campbell v. United S t a t e s , 352 F.2d 359 ( 1 9 6 5 ) ; L o l l a r v . United

S t a t e s , 376 F.2d 243 ( 1 9 6 7 ) ; and Ford v. United S t a t e s , 379 F.2d

123 ( 1 9 6 7 ) .    Under t h i s t h e o r y it i s a m a t t e r of law t h a t one

a t t o r n e y may r e p r e s e n t m u l t i p l e d e f e n d a n t s i f , and o n l y i f ,    (1)

t h e t r i a l judge warns t h e d e f e n d a n t s , p r i o r t o t r i a l , of a p o s s i b l e

c o n f l i c t o f i n t e r e s t , and ( 2 ) t h e c o u r t makes a n a f f i r m a t i v e

d e t e r m i n a t i o n t h a t t h e w a i v e r and e l e c t i o n i s i n t e l l i g e n t and

was n o t d i c t a t e d by i n d i g e n c e o r t h e unawareness of t h e a v a i l -

a b i l i t y of c o u r t appointed counsel.                T h i s t h e o r y h o l d s t h a t ab-

s e n t s u c h a d v i c e and i n t e l l i g e n t w a i v e r on t h e r e c o r d t h e burden

s h i f t s t o t h e p r o s e c u t i o n t o show beyond a r e a s o n a b l e d o u b t t h a t

such j o i n t r e p r e s e n t a t i o n d i d not p r e j u d i c i a l l y impair t h e accuseds'

S i x t h Amendment r i g h t t o e f f e c t i v e a s s i s t a n c e of c o u n s e l .          This

t h e o r y h a s n o t been a d o p t e d by t h e U n i t e d S t a t e s Supreme C o u r t

and i s n o t t h e r u l e w i t h i n t h e F e d e r a l system i n t h i s c i r c u i t .

S e e Kruchten v . Eyman, 406 F.2d 304, 311 ( 1 9 6 9 ) .

             The a l t e r n a t i v e t h e o r y c o u l d be c a l l e d t h e " c o n f l i c t of

i n t e r e s t " theory.       T h i s t h e o r y i s w e l l d e s c r i b e d and s e t f o r t h

i n Kruchten where it s t a t e s :

             " I n c o n s i d e r i n g t h e l e g a l a s p e c t s of t h e c o n f l i c t
             of i n t e r e s t c l a i m , we s t a r t w i t h t h e p r e m i s e
             t h a t i f a c o n f l i c t of i n t e r e s t a c t u a l l y e x i s t s
             t h e c o u r t s w i l l n o t weigh o r d e t e r m i n e t h e d e g r e e
             of p r e j u d i c e which may r e s u l t b e f o r e g r a n t i n g re-
             lief.      G l a s s e r v . United S t a t e s , 315 U.S. 60,
             75-76, 62 S.Ct. 457, 86 L.Ed. 680 ( 1 9 4 2 ) . However,
             u n t i l an a c t u a l c o n f l i c t i s shown t o e x i s t o r
             c a n be r e a s o n a b l y f o r e s e e n a n a t t o r n e y may, i n
             good f a i t h , r e p r e s e n t b o t h d e f e n d a n t s . (Emphasis
             supplied)      .
             " T h i s c o u r t , i n Lugo v . U n i t e d S t a t e s , 350 F.2d
             858, 859, s a i d :
        "'All the cases cited to us by appellant involved
        obvious conflicts of interest, and while we can-
        not indulge in nice calculations about the amount
        of prejudice which results from a conflict of
        interest [Glasser, supra], neither can we create
        a conflict of interest out of mere conjecture as
        to what might have been shown.'
        "In Juvera v. United States, 378 F.2d 433, 437
        (9 C.A. 1967), this Court stated:
        "'It is argued that it was essential that the trial
        judge at the commencement of the trial discuss with
        the defendants the problems relating to representa-
        tion of the several defendants by one counsel,
        pointing out to them the disadvantage that might
        arise should there be conflicting interests to be
        represented by the attorney. We find this conten-
        tion without merit for the reasons recently noted
        by us in Lugo v. United States, 9 Cir., 350 F.2d
        858. ' '
              I
Also see Lollar v. United States, 376 F.2d 243; Lugo v. United
States, 350 F.2d 858 (1965); United States v. Lovano, 420 F.2d 769,
773, Cert. Den. 397 U.S. 1071 (2nd Cir. 1970).
        In Lovano, the appellant and his codefendant were rep-
resented by the same counsel.    Appellant maintained that this dual
representation created ,   per          conflict of interest which
seriously prejudiced his case.      The court there said:
        "The rule in this circuit is that some specific
        instance of prejudice, some real conflict of
        interest, resulting from a joint representation
        must be shown to exist before it can be said
        that an appellant has been denied the effective
        assistance of counsel. (Citing cases)."
Also see Fryar v. United States, 404 F.2d 1071 (1968).
        Under the   "per - theory any dual representation that
                         se"
does not meet the standards set forth above would by itself be
violative of constitutional guarantee; while the other theory
requires that there be a showing of a conflict of interest to
the prejudice of the accused, and that this conflict must be
more than mere conjecture as to what might have been shown.
        We have heretofore adopted the conflict of interest theory.
In State v. Meidinger,       Mont   .     ,   502 P.2d 58, 66, 29 St.Rep.
861, we said:
          " * * * The whole problem directs itself ultimately
          on appeal to the adequacy or inadequacy of defense
          counsel and in the eyes of this Court such adequacy
          or inadequacy of counsel should not be tested by the
          greater sophistication of appellate counsel who did
          not try the case, nor should the test be made on the
          basis of applying different defense tactics, perhaps
          of doubtful efficiency, after leisurely studying the
          transcript of the trial. To make success the only
          test of effective counsel would be an injustice to
          many able counsel, for frequently the ablest of coun-
          sel is overcome by truth.


          " * * * Likewise we feel, under the facts before us,
          that where two defendants desire to retain one counsel
          their decision should be honored. Too, that later,
          when on hindsight after conviction, they should not
          be allowed to change that decision by alleging on
          appeal the inadequacy of their chosen counsel, es-
          pecially when raised for the first time on appeal."
          The fact situation here is exactly as it was in Meidinger.
These defendants were tried together.     Both hired and retained
the same counsel to represent them in all preliminary matters
and at trial.     Counsel was not appointed, or imposed upon either
of them   --   he was retained by the defendants.   Prior to this ap-
peal neither of the defendants had claimed he was denied effec-
tive counsel, but now, after conviction, they each contend that
since they were represented by the same counsel they each were
denied their right to effective counsel.
          Beyond propounding the "per- theory defendants do not
                                  - sew
claim there was any actual prejudice in fact.       They do speculate
and attempt to create a conflict of interest through conjecture
as to what might have been shown.     Such "apparent conflict of
interest" must be shown from the record.     We have diligently
searched the record that defendants have brought before us.       We
can find no actual or apparent conflict of interest.      Even to
speculate in the light most favorable to defendants does not
lead us to believe any rights belonging to these defendants were
prejudiced.     A conflict of interest must be shown to exist be-
fore any defendant can effectively claim that he was denied ef-
fective counsel.
          This actually was a simple and straightforward case.
The two young girls told their story without any material
conflict between them.    Each of the defendants voluntarily took
the stand and confirmed the girls' story in all matters, ex-
cept they each categorically and specifically denied that any
unlawful sex acts took place whatsoever as it related to them-
selves individually and to each codefendant.
          There were two previous cases before this Court con-
cerning effectiveness of counsel, (In re Petition of Peterson,
155 Mont. 239, 467 P.2d 281; and In re Petition of Evans, 158
Mont. 76, 488 P.2d 906) which were overturned by the Federal
courts.    Defendants endeavor to make much of this.   This cause
and fact situation is completely different.    There, the Federal
court found a conflict of interest, i.e., a statement by Evans
that implicated the codefendant Peterson.    This was the factor
which clearly distinguishes the instant case from Peterson and
Evans.    No such statements or facts are contained in this record.
No conflict of interest, apparent or otherwise, is shown or can
even fairly be alluded to.
          As we have heretofore stated we do not adopt the re-
quirements of the "per se" theory.   However, we do suggest that
in cases wherein defendants seek dual or multiple representation
by single counsel the district courts would be wise to fully in-
quire, on the record, as to whether or not the accused have made
an intelligent decision, and as to whether such defendants are
aware of the availability or assigned counsel if they are indigent.
But a failure to follow this suggestion is not by itself a re-
versable error.
          Defendants in their second specification of error attack
the constitutionality of section 94-4118, R.C.M. 1947.    This
statute states:
           "Every person who is guilty of the infamous
           crime against nature, committed with mankind
           or with any animal, is punishable by imprison-
           ment in the state prison not less than five
           years. "
           Each of the defendants, Duncan and Jeffrey, was charged
  by separate information with violating the prohibitions of this
  statute.    Each of the defendants, Duncan and Jeffrey, was ac-
  quitted upon trial by jury.
           Since each was acquitted neither of the defendants l a
                                                               ?s
  standing in this cause to contest the constitutionality of sec-
  tion 94-4118, R.C.M. 1947.    This Court has no intention or
  desire to speculate or determine as to the validity or constitu-
  tionality of any statute or issue that is not properly before the
  Court.   Neither of the defendants stand now charged nor can either
  of them ever again be prosecuted under this statute for the acts
  charged in the information filed below.    The matter is moot.
           For the above reasons the judgment of conviction as to
  each of the defendants is affirmed.


                              ---------------- r-----f--------------
                             Hon. R. D. ~ c ~ h i l l i ~ s ,
                                                        District Judge,
                             sitting in place of Mr. Justice John
                             Conway Harrison.




/ %Chief Justice




   Justices
