State v. Kubas

No. 80-451
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
STATE OF MONTANA,
Plaintiff and Respondent,
VS .
DENNIS RAY KUBAS,
Defendant and Appellant.
Appeal from: District Court of the Eighth Judicial District,
In and for the County of Cascade
Honorable John McCarvel, Judge presiding.
Counsel of Record:
For Appellant:
Kenneth R. Olson, Great Falls, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
J. Fred Bourdeau, County Attorney, Great Falls, Montana
Submitted on briefs: October 1, 1981
Decided: March 3 , 1982
Filed: MAR -
3 1982
m e 9.
Y y
Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The defendant appeals from a Cascade County District
Court jury conviction and judgment for felony theft and
robbery. The only issue he presents is whether his con-
victions should be overturned because he was denied effective
assistance of counsel by his court-appointed attorney.
Defense counsel's theory of defense, acquiesced in by defendant,
was to show that defendant was so influenced by drugs and
alcohol that he was incapable of acting with the requisite
"purposely or knowingly" mental state. Defendant now claims
that this defense had no chance of succeeding and defense
counsel should have known so. We affirm the convictions.
On February 14, 1980, the defendant, Dennis Ray Kubas,
was at a party at the Great Falls home of Debbie McShane.
The defendant had been ingesting extremely large quantities
of beer, whiskey, and barbiturates, and had been injecting
into his bloodstream massive quantities of codeine and
Preludin, an amphetamine-like appetite suppressant.
Sometime during the party, either Eileen Chambers or
her brother, Bill Chambers, mentioned that large quantities
of money and drugs could be found at the home of Gary Friese
and Laura Walker. Sometime later, Bill Chambers left the
McShane residence and told the people at the party that he
could be reached at the Friese-Walker residence. At about
9:00 p.m., the defendant borrowed a 1966 red and white four-
door Mercury and left the McShane residence.
At approximately 11:OO p.m., Bill Chambers, while at
the Friese-Walker residence received a telephone call from
the defendant. Laura Walker had answered the telephone and
testified that she believed the call to be from the defendant,
whom she had met before. A couple of hours later, at
approximately 1:00 a.m. on February 15, 1981, the door to the
Friese-Walker residence was forced open by a man wielding a
rifle and dressed in gloves, a face-mask cut from thermal
underwear, tan pants, and an army-type parka with orange
lining and a brown stripe in the back. Walker described
this man as being between 6'1" and 6'3" tall, weighing over
200 pounds, and having a loud, raspy voice. He ransacked
portions of the Friese-Walker residence, demanding money and
drugs and threatening to kill Walker, Bill Chambers, and
Walker's young child. He then stole Gary Friese's new
stereo. Both Walker and Bill Chambers identified the get-
away vehicle as a four-door red and white late-1960's model
Mercury.
The defendant was arrested the next morning while
wearing tan pants and while in possession of the borrowed
1966 red and white Mercury. After a search warrant was
obtained, police officers seized from the car a face-mask
cut from thermal underwear, an army-type parka with orange
lining and a brown stripe down the back, and a cassette
cartridge taped by Walker and marked in her handwriting.
A voice identification line-up was conducted later that
morning at the Great Falls Police Station. Although Walker
could not see the three men chosen for the line-up, she
picked the defendant's voice as the one belonging to the man
that robbed her home.
At trial, Walker again identified the defendant.
Officer Ayers of the Great Falls Police Department testified
that Walker had described a man similar in appearance to the
defendant and had identified his voice in the line-up.
Defense counsel did not object to Officer Ayers' testimony
and did not file motions to suppress either Walker's voice
identification or the evidence seized from the car. Defense
counsel's trial strategy was to establish that the defendant
had consumed sufficiently large quantities of alcohol and
drugs to prevent him from having the requisite "purposely or
knowingly" mental state. The defendant was convicted of
both charges, designated a dangerous offender, and sentenced
to prison. In December 1980, the defendant's court-appointed
attorney moved to withdraw from the case. The District
Court granted that motion and named a new attorney to
represent the defendant.
The defendant now claims he was denied effective assist-
ance of counsel because his attorney's choice of a defense
theory was unfounded by the evidence. By our holding in
State v. Rose (1980), Mont . -, 608 P.2d 1074, 1077,
37 St.Rep. 642, 649, a person accused of a crime is entitled
to the effective assistance of counsel acting within the range
of competence demanded of attorneys in criminal cases. We
hold that the defendant received effective assistance of counsel.
The defendant alleges that his attorney's choice of a
defense theory was unfounded by the evidence presented by
the defense's two critical witnesses, and had his attorney
been adequately prepared for trial, he would have known this
and wouldn't have promoted such a theory.
The defense was to show that the defendant was sufficiently
influenced by drugs and alcohol that he was rendered incapable
of acting with the requisite "purposely or knowingly" mental
state. The defendant claims that this theory was unfounded
because the defense's two critical witnesses, Dr. John
McGregor and the defendant, failed to provide evidence to
support this theory. Dr. McGregor testified that the defendant
was a drug addict, but could offer no medical opinion as to
whether his consumption of drugs and alcohol would have
rendered him incapable of acting "purposely or knowingly."
The defendant's own testimony also failed to establish that
the defendant did not know what he was doing at the time of
the crimes. The defendant was able to recall with detail
the circumstances leading up to the crime, the precise
quantities and types of drugs he had taken, and why he did
the acts that he did. In his testimony, he admitted nearly
everything that the State had established in its case-in-
chief. From his testimony, there is no doubt that the
defendant was aware he was robbing the Friese-Walker residence.
The defendant contends that it would have been a better
defense strategy to discredit the witnesses who testified
about the defendant's identity. He contends that once the
identification testimony of Bill and Eileen Chamber's was
discredited, it would have been possible, with proper objections,
to exclude Officer Ayers' testimony that Laura Walker had
identified the defendant, and then to isolate and seriously
question Laura Walker's testimony.
The identification evidence in this case is so strong
however, that defense counsel had little choice but to base
his defense upon a theory other than that now proposed by
the defendant. The evidence established that the defendant
had been involved in a discussion regarding a possible
robbery of the Friese-Walker residence, that he later called
Bill Chambers at that residence, and that Laura Walker
recognized the disguised intruder as the defendant and
identified his voice in a line-up. The evidence further
established that the defendant had borrowed a friend's 1966
red and white four-door Mercury, that ill Chambers saw the
defendant leave the Friese-Walker residence in this vehicle,
that the defendant was later apprehended in this vehicle,
and that the items seized from this vehicle pursuant to a
valid search warrant were very incriminating and not easily
challenged.
Any attempt to establish that this defendant was not
the person who committed these crimes would appear to have
had little, if any, merit. A review of the record indicates
that defense counsel was adequately prepared and competent.
The defendant received effective assistance of counsel well
within the range of competence demanded of attorneys in
criminal cases.
The judgment of the District Court is affirmed.
We Concur:
Chief Justice