State v. Dillingham

402 Mont. 239

477 P.3d 328

2020 MT 310

STATE of Montana, Plaintiff and Appellee,

v.Trendton DILLINGHAM, Defendant and Appellant.

DA 19-0352

Supreme Court of Montana.

Submitted on Briefs: November 18, 2020

Decided: December 15, 2020

For Appellant: Penelope S. Strong, Attorney at Law, Billings, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Senior Assistant Attorney General, Helena, Montana, Marty Lambert, Gallatin County Attorney, Bjorn E. Boyer, Deputy County Attorney, Bozeman, Montana

Chief Justice Mike McGrath delivered the Opinion of the Court.

Filed:

¶1 Defendant Trendton Dillingham appeals his January 18, 2019 conviction of aggravated sexual intercourse without consent, which followed various pretrial expressions of a lack of confidence going to trial and a request for a continuance. We affirm.

¶2 We restate the issue on appeal as follows:

Did the District Court abuse its discretion in denying Defendant's request for a continuance of the jury trial and by failing to open a formal inquiry into the effectiveness of counsel following Defendant's pretrial expressions of lack of confidence?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On February 21, 2018, Gallatin County charged Defendant Trendton Dillingham (Dillingham) with the felony of Aggravated Sexual Intercourse without Consent under § 45-5-508, MCA, in connection with an encounter between Dillingham and a woman he met through an online dating application. On February 27, 2018, the State Public Defender appointed counsel for Dillingham. On two occasions prior to trial, the District Court issued an Order Regarding Ex Parte Communication in response to materials Dillingham had sent to the District Court judge requesting a hearing for bail reduction and release on his own recognizance.

¶4 At a January 8, 2019 status conference, Dillingham's counsel, Annie DeWolf, indicated that, though she had recently confirmed with Dillingham that he wished to go to trial, Dillingham now wished for a continuance because he did not feel that the defense was ready for trial. The District Court encouraged Dillingham to elaborate on the nature of his concerns, commencing a lengthy discussion. Dillingham's statements, though at times difficult to decipher, related his concerns that things had "not been disclosed" to him, that he had not "been able to really stay in complete communication about the status of what's going on here," that he had not "been given a fair situation," that the accusations and evidence against him were baseless, and that he had not been given "full confidence that [he] want[ed] to stay in trial, to feel confident to stand trial, to defend [him]self."

¶5 Dillingham stated that he had been ready to go to trial in November before being "pushed back on the back burner of the situation and not understanding completely why—of why I was being pushed back on trial" and that he did not feel that the evidence against him justified the ten months he had already spent in detention. After what appear to have been references to a prior proceeding that resulted in a plea deal and lesser included offenses, Dillingham said that he felt that "this is all being tied together of some sort" and that "it doesn't, quite frankly, add up or make any sense of anything." The District Court responded by reassuring Dillingham that there would be no evidence of prior bad acts admitted at trial.

¶6 Dillingham went on to express concern regarding publicity surrounding his prosecution, as his "character was completely blasted over the radio, the newspaper, all over social media," exposure to which he felt was the only way for "anyone to highly regard any accusation toward[ ]" him. The District Court responded that Dillingham raised a "very fair question" but reassured Dillingham that he would have the opportunity to ensure he had an impartial jury, unaffected by pretrial publicity, through the voir dire process. Dillingham indicated concern that this publicity could raise racial bias to undermine the fairness of the proceedings, arguing that social media posts saying "Black man charged" were a "racial invective," demonstrating "bigotry going on." Dillingham concluded:

Dillingham: All I'm saying, Your Honor, is I would like to get a very good understanding. Me and my family [are] trying to get a great understanding of what's going on in this predicament of stance, to speak to my attorneys, to figure out a game plan, so we can feel confident in moving forward.

Court: So if you're wanting more time to do that—

Dillingham: Yes, ma'am.

Court: —my concern is that you would, then, be waiving any right to have a speedy trial, and what I'm hearing, part of your concern, is that you've been in the detention center for, as you said, 10 months, and you want this resolved.

¶7 The District Court went on to express various concerns with delaying the trial—including preserving witness memories and docketing issues—and reminded Dillingham that the State would be required to bear the burden of proving his guilt beyond a reasonable doubt to a jury at trial. Dillingham responded that he was "not worried about going to trial," as he expected to be acquitted, but went on:

I feel very inconfident into what is going on to following up of this, now, trial date. My last acknowledge of a trial date, I didn't—when I spoke to you, last, in November, Your Honor, I thought we were just going to have a status hearing, and maybe some sort of, idealistically, maybe a dismissal, or very, very least amount, a small plea bargain. And now, the trial issue, that doesn't bother me. I'm willing to stand trial. I just want to make sure that me and my legal counsel, that's going to be standing there with me, is going to be 100 percent ready and confident that we're ready to go to trial. I feel that that's inadequate. I feel like we're not ready. I feel like we're not ready to stand a trial right now because I don't even know what we're arguing against. We haven't went over anything about none of this right now. So I would like to know what the State is wanting to bring forward at trial ....

¶8 The District Court responded that the only information the State was required to provide prior to trial was the affidavit of probable cause and the list of witnesses. The exchange continued:

Dillingham: But I have witnesses of my own that has not been able to be subpoenaed in as well. I just—once again, I don't know exactly—I just feel that we're not confident. I don't want to go to trial. I don't want to go to trial, at this moment in time. It's not about any, of sort, of issues about anything. I just want to make sure that I'm 100 percent confident ....

Court: If you feel like you're not ready, that your defense isn't ready—Ms. DeWolf, do you have any concerns about being ready for trial? ... [A]re there any reasons that you feel that defense needs more time to get ready?

DeWolf: I think that we've interviewed all the witnesses and we're ready to go. I understand that Mr. Dillingham wants me to call somebody as a witness, but I don't think that we would call that person as a witness, and I think we have a disagreement about it.

Court: Is that witness, potentially, available for this trial, should you decide to do it?

DeWolf: Yes. He's not—it's Mr. Dillingham's cousin, who lives in Ohio. He's not—he doesn't have any personal knowledge of this.

¶9 The District Court responded by explaining the requirement that trial testimony be relevant but that it would be "a decision that you have to make with your attorney, as to who to call, and why, and what their testimony might be." The District Court then turned to an unrelated evidentiary matter before returning to Dillingham's concerns:

And I'm not aware of any other pretrial issues, other than Mr. Dillingham's concern, now, about being ready. I'm not quite sure what's best to address that, Ms. DeWolf. I think, you probably need some time with Mr. Dillingham to talk through the rationale about what witnesses to call, and when or why, or maybe have Mr. Dillingham's requested witness available and ready, and then you can make that determination during the trial.

I'm not quite sure how to help you with that. Mr. Dillingham, the only other thing I can tell you is that I will do my best to make sure things proceed fairly, and that you have the opportunity to present whatever evidence that you feel is relevant, but it does have to be relevant. I want you to be comfortable about being ready to go to trial and so—as an example, if you had somebody that couldn't be here because they were going to be traveling or something like that, then that's different. If it's just a strategic decision that you need to make with your attorneys, but you have your witnesses available, you can make that decision as you go through the trial, and you can continue to talk about that. That's between you. So those are options that are still available to you. Again, as far as any pretrial publicity, or exposure to the facts of the other case, or exposure to any media or social media, all of those questions will be addressed during the voir dire process by counsel. I'm going to tell you that it's been the Court's experience that I'm always surprised at the fact that the majority of people don't pay attention to any of that, or don't read it or see it.

¶10 The District Court revisited Dillingham's concerns regarding pretrial publicity and juror bias, which the court deemed to be "very legitimate questions and very real concerns." The District Court again discussed how the voir dire process would enable Dillingham to screen jurors exposed to pretrial publicity. The exchange went on:

Court: As best I understand your concerns, I don't think there's a basis to continue the trial. If you talk to Ms. DeWolf and you still feel that there's something there, then she can file that motion, and we'll look at that. My biggest concern of all of the things you raised today, is that I don't want you to have to extend the trial and waive

...