                            NO.     94-509
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1995


STATE OF MONTANA,
          Plaintiff and Respondent,
     v.
DAMON PATRICK WEREMAN,
          Defendant and Appellant.



APPEAL FROM:   District Court of the Fifth Judicial District,
               In and for the County of Jefferson,
               The Honorable Frank M. Davis, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               William F. Hooks, State Appellate Defender,
               Helena, Montana
          For Respondent:
               Hon. Joseph P. Mazurek, Attorney General,
               Elizabeth L. Griffing, Assistant Attorney
               General, Helena, Montana
               Deborah Butler, Acting Jefferson County
               Attorney, Boulder, Montana


                                  Submitted on Briefs:   June 29, 1995
                                              Decided:   September 14, 1995
Filed:
Justice Terry N. Trieweiler       delivered the opinion of the Court.

     The     defendant,   DamOn    Patrick      Wereman,   was      charged    by
information in the District Court of the Fifth Judicial District in

Jefferson County with bail jumping pursuant to § 45-7-308,                    MCA.

Following trial by jury, a guilty verdict was returned.                 Wereman
appeals from his conviction.               We affirm the judgment of the

District Court.

     The issues on appeal are:

     1.      Did the District Court err when it admitted evidence of

prior statements by Wereman's counsel to the effect that he had not
been able to locate his client?

     2.      Did the District Court err when it instructed the jury

that notice to counsel was considered notice to his client?

                           FACTUAL   BACKGROUND

     On August 12, 1985,     Wereman       was charged by information with

aggravated    assault in    the    Fifth      Judicial   District     Court in
Jefferson County.    The District Court set bail at $2500 and ordered

Wereman    to make his initial appearance on August 26,                   1985.

Wereman's bail was posted, conditioned on his appearance in court,

and he was released from jail on August 13, 1985.             Wereman    failed
to appear on August 26, 1985, and the court rescheduled his initial

appearance for September 3, 1985. Again, Wereman failed to appear.

On September 9, 1985, Wereman's        counsel appeared in the District

Court without his client and told the District Court that he had

unsuccessfully attempted to contact Wereman.               Accordingly,       the
District Court ordered that Wereman's bail be forfeited.

                                       2
         On April 14, 1993, Wereman              was arrested in Helena, based on
misdemeanor        charges.         He was then transferred to the Jefferson

County Jail in Boulder to await further prosection of the 1985

aggravated assault charge.

      However,      that charge was dismissed, and instead, Wereman was

charged with bail jumping in violation of § 45-7-308, MCA.

         The trial of that charge commenced on May 4, 1994.              During the

trial,     over    Wereman's        objection,    the State introduced a minute
entry from the September 9, 1985, hearing during which Wereman's

counsel told the District Court that he had attempted but failed to

contact     Wereman     concerning       Wereman's     initial appearance in the

aggravated assault case.               Thereafter,    the jury returned a guilty

verdict.
      Wereman was sentenced to ten years in prison, with five years

suspended,        for bail-jumping.          The District Court also designated

Wereman     a persistent felony offender and, as a result, sentenced

him   to     an     additional        five   years    in   prison   to   be   served

consecutively        with     the    bail-jumping     sentence.     The court also

designated Wereman as a dangerous offender for purposes of parole.

Wereman     appeals the judgment of the District Court.

                                          ISSUE 1

         Did the District Court err when it admitted evidence of prior

statements by Wereman's counsel to the effect that he had not been

able to locate his client?




                                              3
        We review       a district court's admission of evidence to
determine whether the district court abused its discretion in doing

so.     &&‘v.Passama   (1993), 261 Mont. 338, 341, 863 P.2d 378, 380.

        The district court has broad discretion to determine
        whether or not evidence is relevant and admissible, and
        absent a showing of an abuse of discretion, the trial
        court's determination will not be overturned.

Passama ,    863 P.2d at 380 (citing St&v. Crist (1992), 253 Mont. 442,

445,    833 P.2d 1052, 1054).

        Furthermore,     u [nlo cause shall be reversed by reason of any

error committed by the trial court against the appellant unless the

record shows that the error was prejudicial."                   Section    46-20-
701(1), MCA.       "Any error, defect, irregularity, or variance which

does not affect substantial rights shall be disregarded."                 Section

46-20-701(2), MCA.
        The District Court admitted a minute entry that indicated that

Wereman's     counsel had informed the District Court that he had

"tried different ways in which to contact [Wereman] . . . but could

not find him . . .I'         Wereman argues that admission of the minute

entry       created a    conflict of    interest for his counsel,             and

therefore, was a violation of his constitutionally guaranteed right

to effective assistance of counsel pursuant to the Sixth Amendment

of the United States Constitution and Article II, Section 24, of

the Montana Constitution.
        The starting point for analyzing ineffective assistance claims

is Stricklandv. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80

L. Ed. 2d 674.          In that case,   the   United   States    Supreme    Court

                                        4
established a two-part test.            First,    the defendant must prove that
counsel's performance was deficient.                 Second,     the defendant must
prove that the deficient performance prejudiced the defendant.

Strickland. 466 U.S. at 687.

        In support of his contention that he did not receive effective

assistance      of    counsel,     Wereman directs      our attention to      State v.

Christenson (1991),   250 Mont. 351, 820 P.2d 1303.               In that decision,

we set out the two correlative rights established by United States
Supreme Court case law in relation to the Sixth Amendment's

guarantee of effective assistance of counsel.                     Those two rights

are: (1) the right to reasonably competent counsel (citing McMann

v.Richardson   (1970), 397 U.S. 759, 770-71, 90 S. Ct. 1441, 1448-49,

25 L. Ed. 2d 763,         773; and (2) the right to counsel's undivided

loyalty (citing Woodv. Georgia (1981),             450 U.S. 261, 271-72, 101

S. Ct. 1097, 1103-04, 67 L. Ed. 2d 220, 230).                     We recognized in

Christenson that criminal defendants may raise                 different sorts of

ineffective           assistance      claims       to    which      courts    must,

correspondingly,         apply     different   tests.      For    example,   when a

criminal defendant raises issues relating to conflicts of interest,

as Wereman       does here,      we will apply the test the Supreme Court

established in Cuylerv. Sullivan (1980), 446 U.S. 335, 100 S. Ct. 1708,

64 L.    Ed. 2d 333.          In Cuyler,   the Court held that ineffective

assistance by conflict of interest requires proof that: (1) counsel

actively       represented    conflicting        interests;    and (2) an actual



                                           5
conflict of interest adversely affected counsel's performance.

Cuyler , 446 U.S. at 350, 100 S. Ct. at 1719.

        We have stated that we will presume prejudice if the defendant

can establish both prongs of the Cuylev test.            Christenson,     820 P.Zd at

1306.     The reason for this is that a presumption of prejudice is

warranted    in   such   a   circumstance   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."'                    Christenson,    820

P.2d at 1306 (citing Stricklandv.     Washington (1984), 466 U.S. 668, 692,

104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674, 696).

        Wereman   contends that admission of his counsel's remarks

effectively transformed his counsel into the State's key witness.

He also contends that once the District Court admitted the minute

entry,    the court "placed counsel in an insoluble dilemma, for he

could not challenge the state's evidence when he was the source of

that      evidence.      .     In short,    counsel's    statements         were       used

against his client,          and he could not advocate on behalf of his

client."
        Wereman relies on Uptainv.UnitedStates (5th Cir. 1982), 692 F.2d 8.

In that case,      the defendant had been indicted for bail jumping.

During trial,      the   government   called   Uptain's     counsel        to    testify

that Uptain had notice of the trial date.             Uptain's counsel was the

only witness the government called to testify, with the exception

of a rebuttal witness.           Counsel testified that he had sent two


                                        6
letters by certified mail to the defendant indicating when the

trial date was, but that the receipts evidencing their delivery had

never been returned to him.           Uptain's counsel also testified that

he had spoken with the defendant over the telephone concerning the
trial date and, although he could not recall whether he had told

the defendant the date of trial, it was his normal procedure to do

so.

         The Fifth Circuit Court of Appeals ruled that counsel's

testimony      was   "undeniably    inherently          prejudicial."   The court

emphasized the fact that the government's only witness was the

defendant's counsel and that counsel could not have adequately
defended his client when to do so required that he minimize the

significance of his own testimony.                 In reaching its conclusion, the

court also emphasized that the defendant's only defense to the

bail-jumping charge was that he did not have either written or oral

notice of the trial date.          Uptain ,       692 F.2d at 10.

         The facts in this case differ considerably from those in Uptain.

Here,     the State presented        several witnesses to establish the

elements of bail jumping; Wereman's                  counsel was not called as a

witness; notice was not an issue; and the minute entry at issue

would not have shown notice, even if it had been an issue.                 All the

minute   entry did show was that Wereman's counsel did not know where

Wereman was on September 9, 1985.                 The fact that lack of notice was

not the reason for Wereman's failure to appear is evident from his




                                              7
own     testimony.        On direct   examination,   Wereman   testified as
follows:

        Q:    (DEFENSE coumm)     And did you show up for any
        further court proceedings once you bailed out?
        A:    (WEREMAN)     I'm not too sure.   I don't think I did.

        Q:   Okay. And what was -- what was your intention at
        that time, Pat? Did -- did you intend to run away, or
        did you have some other idea? What was your -- what was
        your thinking at that time?
        A:   It was pretty clear to me the case was going to be
        thrown out. . So I just figured it was history.

        Q:   And how did you come to form that opinion?
        A:   Oh, just talking with different people and stuff.
        Subsequently, after Wereman refused to answer questions during
cross-examination,         the District Court asked Wereman if he had
failed to make his initial appearance, to which Wereman responded,
"It's    pretty obvious."
        Based on the above discussion, we conclude that admission of
the minute entry did not adversely affect counsel's ability to
defend Wereman       in this case, and therefore, did not satisfy the
second prong of the Cuyler test to establish ineffective assistance

of counsel.     Furthermore, even if the District Court had abused its
discretion by admission of the minute entry, we conclude, based on
a review of the evidence and issues presented, that the minute
entry was not prejudicial to the defendant, and therefore, does not
serve as a basis for reversal of the District Court's judgment.




                                        8
                                 ISSUE 2
     Did the District Court err when it instructed the jury that

notice to counsel was considered notice to his client?

     We review jury instructions in criminal cases to determine

whether the instructions,     "as a whole,    fully and fairly instruct

the jury on the law applicable to the case."         State v. Brandon   ( 1994 ) ,

264 Mont. 231, 237, 870 P.2d 734, 737 (citing Statev.Lundblade (1981),

191 Mont. 526, 529, 625 P.2d 545, 548).         The district court must
provide the jury with instructions for each issue or theory which

is supported by the record.     Brandon, 870 P.2d at 737 (citing Statev.

Popescu (19891, 237 Mont. 493, 495, 774      P.2d 395, 396).

     The District Court instructed the jury that 'I [nlotice              to an

attorney of a court date is notice to the client and knowledge of

the attorney is knowledge of his client."          Wereman    contends that
this instruction relieved the State of proving every element of the

bail-jumping offense beyond a reasonable doubt and, in particular,

the mental-state element.      In other words, Wereman        contends that

the instruction imputed his counsel's notice to him.                    Wereman

relies on our decision in     Statev.Blackbird (19801, 187 Mont. 270, 609

P.2d 708, to support his argument.         III Blackbird, the defendant was

charged with bail jumping for failing to appear for trial in

connection with burglary, aggravated burglary, attempted burglary,

and sexual intercourse without consent charges.          At trial, one of

Blackbird's defenses was that it was not his purpose to not appear

for trial.     At the close of trial,         the court issued a jury

                                    9
instruction which was, in substance, identical to the one at issue

here.     We held that the instruction should not have been given

because     it did not allow the jury to independently assess

Blackbird's    mental    state.      Blackbird,    609 P.2d at 710.     We also

concluded that giving the instruction was not harmless error.
        However, for the reasons set forth in the previous section of

this opinion, we conclude that while this instruction should not

have been given,        it was harmless in the context of this case.

Again,    Wereman himself testified regarding his reason for not

appearing.     He stated it was because the charges lacked              merit   and

would be dropped.        He said nothing about lack of notice.            It was

simply not an issue in       th-is case.          While Wereman   could not have

been compelled to testify, he chose to waive his Fifth Amendment

right to      remain     silent     (at least until        cross-examination).

Therefore,    his own admissions, and any reasonable inference from

those admissions, must be considered.

        Therefore, we conclude that the jury instruction complained of

was harmless beyond a             reasonable doubt and that it did not

contribute to the jury's verdict.

        Accordingly,    we affirm the decision of the District Court.




                                         10
we concur:




             Justices




                        11
Justice W. William Leaphart, dissenting.

     I dissent from the Court's opinion on issue two. The District
Court instructed the jury that (I [nlotice to an attorney of a court
date is notice to the client and knowledge of the attorney is
knowledge of his client."       In Blackbird,    this Court analyzed a
virtually    identical   jury   instruction,    and held that it was
reversible error to so instruct the jury.        I cannot join with the
majority, which recognizes that the instruction given in Blackbird
is "in substance, identical to the one at issue here" and that "the
instruction should not have been given," yet holds that it was
"harmless in the context of this case."        As we held in Blackbird:
     As a conclusive or mandatory presumption, the instruction
     had the effect of relieving the State of its burden to
     prove every element of the offense beyond a reasonable
     doubt.   The inclusion of the instruction obviated the
     necessity for the jury to independently examine the
     mental state or the intent or purpose of the defendant.
     The giving of the instruction was, therefore, error.
Blackbird,   609 P.2d at 710.    Section 45-7-308(l), MCA, sets forth
the offense of bail-jumping:
     A person commits the offense of bail-jumping if, having
     been set at liberty by court order, with or without
     security, upon condition that he will subsequently appear
     at a specified time and place, he purooselv fails without
     lawful excuse to alsoear at that time and olace.
      [Emphasis added.]
     Clearly, to purposely fail to appear at a time and place, the
defendant must have notice of the time and place. Thus, notice was
an element to be proven, not, as the majority infers, a defense
that the defendant has to raise.     The effect of the instruction was
to shift to Wereman the burden of proving lack of notice instead of

                                    12
keeping the burden on the prosecution, where the burden of proof
must remain as to every element of the offense.        Sandstrom v.
Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. I find
it troubling that the majority recognizes that Blackbird prohibits
this type of conclusive presumption instruction, yet holds that the
giving of the instruction "was harmless in the context of this
case."
     In   Blackbird,   we found that the giving of an identical
instruction was not harmless error even though the jurors "could
have inferred [defendant's mental state]      from other items of
evidence introduced at trial, we cannot declare beyond a reasonable
doubt that all of the jurors formulated defendant's mental state
this way."   Wereman testified that he did not appear because the
charges lacked merit and would be dropped.     From this statement,
the majority infers that notice was not an issue.       I disagree.
Whether Wereman raises the issue or not, notice remains an element
of the offense of bail-jumping.   The instruction relieved the State
from its burden of proof on an element of the offense. Even though
Wereman said nothing about lack of notice, that does not relieve
the State from proving every element of the offense.   As a result,
I would reverse the District Court on this issue.




                                  13
Justice Karla M. Gray joins in the foregoing dissent of Justice W.
William Leaphart.




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