State v. D. Knox

2021 MT 208N, 492 P.3d 1227

Opinion

08/17/2021

DA 19-0323 Case Number: DA 19-0323

IN THE SUPREME COURT OF THE STATE OF MONTANA

2021 MT 208N

STATE OF MONTANA,

Plaintiff and Appellee, FILED v. AUG 1 7 2021 Bowen Greenwood DUSTIN HAYES KNOX, Clerk of Supreme Court State of nilontana

Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DC-18-249 Honorable James A. Manley, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Gregory Hood, Assistant Appellate Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Damon Martin, Assistant Attorney General, Helena, Montana

Steven Eschenbacher, Lake County Attorney, Benjamin R. Anciaux, Deputy County Attorney, Polson, Montana

Submitted on Briefs: June 16, 2021

Decided: August 17, 2021

Filed:

Clerk Chief Justice Mike McGrath delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3(c), 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 nurnber, and disposition shall be included in this

Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2 Dustin Hayes Knox appeals from the Twentieth Judicial District Court's denial of

his motion to continue his jury trial and his subsequent convictions of assault with a

weapon, aggravated assault, aggravated burglary, and solicitation or tampering with

witnesses and inforrnants. We affirm.

¶3 On July 10, 2018, the State charged Dustin Hayes Knox (Knox) with robbery,

assault with a weapon, aggravated assault, and aggravated burglary. The State alleged that

Knox had poured gasoline from a water bottle onto Angela Cox (Cox) while she was

sleeping and, upon her awakening, demanded money,threatening to light her on fire before

going on to threaten her husband with a hammer. On November 14, 2018, the State filed

an amended information charging Knox with solicitation oftampering with witnesses and

informants based on a letter he had allegedly written to another inrnate atternpting to

coordinate efforts to intimidate Cox from testifying at trial. The added count caused a

conflict of interest for appointed counsel, and the public defender's office substituted in

contract conflict counsel, Lisa KauffMan (Kauffman). At the arraignment for the amended

charges, Kauffman rnoved for the Decernber 17, 2018 trial to be vacated. The District

2 Court granted the motion, rescheduling the trial for February 4, 2019. On January 22,

2019, Kauffman filed a rnotion to continue, pointing to a previously-scheduled trial which

she had expected would be resolved with a guilty plea, but which was now going to trial

scheduled for February 2, 2019, and a double-homicide trial scheduled for March and April

2019.

¶4 At a January 30, 2019 hearing on the motion, Kauffman explained that, though she

had "done a lot of leg work on this case," she needed more time to prepare, as she had

inherited Knox's case with no investigatory work having been cornpleted. Kauffman stated

that she needed to investigate information with which to impeach Cox over alleged

misrepresentations regarding whether Cox had owed Knox rnoney and to look into

potential witness testimony suggesting that Cox, rather than Knox, had wielded the

gasoline. Kauffinan, who admitted she was "freaking out" under the stress, stated that

"things need to be done. I've talked to probably every witness I'm going to need on the

phone. I need to probably interview the complaining witness based on her testimony from

last August."

Kauffinan stated that, as soon as she got the case in November, she had told Knox:

"I'm leaving for six weeks, the end of Decernber to January, for vacation." That was planned, two years in the rnaking. And I said, "it's possible I'm not going to be together enough to get this ready by February. Do you understand that with my trial commitment we may not go until June?"

¶6 Knox apparently assented. Kauffinan had not advised the court of her schedule at

that time, however, and conceded at the hearing: "I guess perhaps I should have advised

the court of[scheduled plans] as soon as I got the case." The court noted that Kauffinan

3 took the case knowing she was going to leave for six weeks,to which Kauffman responded:

"It never occurred to me that a case I was appointed on in November I would be expected

to try in the first week ofFebruary." The court acknowledged that a jury panel had already

been pulled and that a flight for an out-of-state State witness had been arranged.

¶7 In response to a proposed June trial date, the District Court stated that it was

unwilling to have Knox be "incarcerated eleven months because of his counsel." Kauffman

then suggested a trial date ofApril 29, 2021. However,Knox foreclosed further discussion

of that possibility, indicating that he would only be willing to go to trial either "June or

[next] Monday."

¶8 The State did not object to the proposed continuance, citing concern for a potential

ineffective assistance of counsel claim on appeal. The District Court acknowledged this

concern, stating "[i]f we go forward on Monday, [Knox] would have a pretty good

argument to ineffective assistance of counsel." Kauffman repeatedly responded to the

District Court's stated concerns regarding Knox's speedy trial rights by pointing out that

they were Knox's to waive. Nevertheless, the District Court stated that Knox had "not

filed a waiver of speedy trial" and that:"As I understand, it's the defendant's position that

it's either June or Monday, so let's go to trial on Monday."

¶9 At trial, the State presented witness testirnony regarding the event as well as crime

scene photographs, lab reports indicating that the recovered water bottle and Knox's

clothing tested positive for gasoline, and a hammer found in Knox's vehicle. The

responding officer testified to finding Cox with wet hair, bloodshot eyes, and "reek[ing] of

gasoline." He described a very strong smell of gasoline in her room and finding a small

4 water bottle smelling of gasoline next to the bed. Over objection, the State adrnitted the

intercepted letter stating:

Please Make Sure That Bitch Don't Show up For trial!!! Counting on You All. K. I Wasn't Able To talk to Bandito Robin So Don't Know What he got Accomplished! He Said he talked to her So We Should Know if that was enough on November 14th. If it Wasn't Tell Joe to Round Sorne Boys up & get his ass up here. OR just tell hirn I Could Sure Use his help & Would Gladly Pay For Services K.

¶10 Kauffinan brought two witnesses. One witness,the mother ofKnox's child, testified

that Cox had indeed owed Knox money and suggested that the letter exhorting "Joe" to

"round some boys up" was rnerely seeking financial help for her and her son. Both

witnesses testified that Cox did not have a reputation for truthfulness in the community. In

closing, Kauffman attacked Cox's credibility, arguing that Cox lied in representing that she

did not personally know her assailant at the time of the incident. Kauffman also pointed to

the lack of fingerprint evidence on the water bottle, which was not adrnitted into evidence,

and irnplied that Cox—whose hands were not swabbed for gasoline—might have actually

been the aggressor. In closing, the State characterized the issue of bond money as a red

herring, noting that "the fact that someone owes you money doesn't give you the right to

collect it by pouring gas on somebody and threatening them with a hammer." The jury

apparently agreed; at the close of the three-day trial, it returned a verdict of guilty for

assault with a weapon, aggravated assault, aggravated burglary, and solicitation of

tampering with a witness. The jury acquitted Knox on the robbery charge.

¶11 On February 11, 2019, Kauffrnan filed a rnotion for a Gallagher hearing to

"determine if the defendant could show by a preponderance of the evidence whether he

5 received a fair trial based upon ineffective assistance of counsel." See State v. Gallagher,

2001 MT 39, ¶ 7, 304 Mont. 215, 19 P.3d 817. The court heard testimony from both of

Knox's attorneys, finding that, after conducting Knox's suggested interviews, they had

informed Knox that "appropriate defenses and trial strategies would not produce favorable

results." The District Court concluded that Knox had "failed to show errors so serious that

assistance was not effective[,] . . . failed to show that those errors prejudiced the defense

and deprived him of a fair trial," and "failed to point to evidence or tactic that would have

overcome the overwhelrning evidence offered to the jury."

¶12 Knox appeals the court's denial of his motion to continue. Rulings on motions to

continue are reviewed for an abuse of discretion. State v. Garcia, 2003 MT 211, ¶ 10, 317

Mont. 73, 75 P.3d 313.

¶13 Due process considerations and the right to counsel require that counsel be given a

reasonable time to prepare for trial. Garcia, ¶ 13. Section 46-13-202(3), MCA, provides:

All rnotions for continuance are addressed to the discretion of the trial court and must be considered in the light of the diligence shown on the part of the movant. This section must be construed to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the prosecution to a speedy trial.

¶14 Though a district court has discretion over rnotions to continue, "[w]hen a

continuance is requested, and that request is reasonable given all the relevant factors

including the defendant's right to a fair trial and effective assistance of counsel, it

constitutes abuse of discretion for the court to refuse to grant the continuance." State v.

Sotelo, 209 Mont. 86, 92, 679 P.2d 779, 782(1984). However, even when a district court

has abused its discretion in refusing a motion to continue, this Court will not overturn the

6 decision absent a showing that the ruling prejudiced the defendant. See State v.

Ibarra-Salas, 2007 MT 173, ¶ 13, 338 Mont. 191, 164 P.3d 898.

¶15 Here, we need not consider whether the District Court abused its discretion in

declining to continue the trial, as Knox has not shown that he was prejudiced as a result.

Knox points to no blunders by Kauffman at trial. Instead, Knox sirnply asserts that

Kauffinan may not have cornpleted a sufficient level of investigatory research before trial,

raising the possibility that Kauffrnan could have rnissed sornething. However,Knox points

to no evidence to support this contention. To the contrary, the record indicates that

Kauffman was prepared at trial and that the strength of the State's case, not performance

by defense counsel, was responsible for the ultimate outcome.

¶16 First, the record indicates that, by the tirne of trial, Kauffman had completed the

work she had expressed concern about during the hearing on the motion to continue. At

the hearing, Kauffman had stated that, despite having already done "a lot of legwork" on

the case, "things need[ed] to be done." More specifically, she said that she "need[ed] to

probably interview the complaining witness." However, she also said that she had already

"talked to probably every witness I'm going to need on the phone." She also stated that

she was investigating potential evidence regarding who was wielding gasoline and whether

Cox had misrepresented that she did not in fact owe Knox rnoney.

¶17 At trial, Kauffman did introduce evidence arguing that Cox had actually owed Knox

the disputed money leading to the altercation and brought two defense witnesses to

challenge Cox's credibility. In closing, Kauffinan attacked the State's version of events

by implying that Cox, rather than Knox, might have been the aggressor. Given the

7 corroborating officer testirnony that Cox had been found drenched with gasoline,

Kauffman's failure to support this implication with evidence is far more attributable to its

likely non-existence than to a lack of preparedness by counsel in atternpting to locate it. In

short, there is no indication in the record that any ofthe "things [that] need[ed] to be done"

at the time of the hearing—interviewing witnesses and looking into ways to irnpeach Cox

or challenge her account of events—remained uncompleted at the time of the trial.

¶18 At the Gallagher hearing following trial, Kauffman testified to working between

fourteen and eighteen hours per day in order to be prepared for Knox's trial. Nothing about

this trial—featuring less than two days of witness testimony and a straightforward case by

the State—suggests that defense counsel would need an inordinate amount of tirne with

which to prepare. Notwithstanding Kauffman's stated sense of "freaking out" due to an

approaching deadline while loose ends still needed to be tied up—an all too fainiliar feeling

to many who have experienced law school—the record indicates that Kauffinan was

sufficiently prepared by the time of trial, where she provided Knox with adequate

representation.

¶19 Second, the outcome of the trial appears far more attributable to the substantial

strength of the State's case than the performance of counsel. The State presented witness

testiinony, physical evidence, officer testiinony of finding Cox with wet hair, bloodshot

eyes, and "reek[ing] of gasoline," and an intercepted letter seeking to "Round Soine Boys

up" to "Make Sure" that Cox "Don't Show up For trial." At the hearing on the motion to

continue, Kauffinan admitted that she did not have a "magic wand" with which to respond

8 to the letter. Knox points to nothing that Kauffman could have done differently that would

have led to a different result in this case.

¶20 In light ofthe strength ofthe State's case and a lack of any indication that Kauffman

was unprepared on the day of the trial, we do not find that Knox was prejudiced by the

District Court's denial of his motion to continue the trial. Because Knox is not entitled to

a reversal without a showing of prejudice, we need not consider whether the District Court

abused its discretion.

¶21 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review.

¶22 Affirmed.

We Concur:

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Justices