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State v. Rose12/30/1998
Submitted on Briefs July 16, 1998.
1 A jury in the Fourteenth Judicial District Court, Musselshell County, found Richard Wesley Rose guilty of criminal possession of dangerous drugs and accountability for an aggravated burglary. He appeals. We reverse and remand in part and affirm in part.
2 The issues are whether Rose's counsel rendered ineffective assistance by failing to request a jury instruction that the testimony of Ross Albrecht must be viewed with distrust, and whether there was sufficient evidence to convict Rose on each of the two charges against him. Because we conclude that Rose was not accorded effective assistance of counsel in relation to the burglary charge, we do not reach the issue of whether there was sufficient evidence to support his conviction of accountability for aggravated burglary.
3 This proceeding arose from Rose's activities on the night of September 29-30, 1996. That evening, Ross Albrecht visited Rose at his apartment in Roundup, Montana. Both men consumed beer, which Rose supplied, and prescription medication, which Albrecht supplied. At about 10:00 p.m., Rose gave Albrecht a ride to the apartment building where the mother of Albrecht's child lived. According to Rose, Albrecht asked Rose to wait in the van while he went to see if the mother of his child was at home. According to Albrecht's testimony at Rose's trial, the plan was for Rose to wait in the van while Albrecht burglarized Enjoy Sports, a nearby sporting goods store in downtown Roundup.
4 At about 3 a.m., the Musselshell County Sheriff's Office received a call that an alarm was sounding at Enjoy Sports. Officers found Albrecht coming out of the back door of the building. They pursued him on foot a short distance to a narrow alleyway where he was apprehended. Albrecht, who was very lethargic and " ppeared to be under the influence of something," had in his possession a handgun, a bottle of salmon eggs, and two packages of propane cigarette lighters, all of which bore Enjoy Sports price tags. He also had in his possession several items which he later said Ross had supplied to him: a black-handled Phillips tip screwdriver, a syringe containing residue of the controlled substance Diazepam, and five .22 caliber CCI brand bullet cartridges. Later that morning, the sporting goods manager of Enjoy Sports found other items in the narrow opening between buildings where Albrecht had been caught: a sharpening stone, Zigzag rolling papers, a red-handled flat-tipped screwdriver, a Western brand Bowie knife with the initials "D.R." embossed on its sheath, and a .22 caliber Jennings semiautomatic pistol.
5 The inside of Enjoy Sports was trashed. The ceiling was damaged and items were overturned from what Albrecht admitted was his entry through a roof vent. Other merchandise racks were tipped over, store items were strewn about, a gun case was broken, and fourteen handguns were scattered about the floor of the store. Shots had been fired out through a front window of the store, and into a telephone box on a wall inside. Another gun, apparently thrown through a window, was found on the sidewalk in front of the store.
6 After Albrecht was handcuffed and placed in the back seat of a police car, officers heard a horn honking. Investigating, they found Rose sitting in the driver's seat of the van, slumped over the steering wheel. Rose at first did not seem to notice the officers, who arrested him for DUI and helped him to a police car. In the driver's door pocket of the van, which was owned by Rose's live-in girlfriend, officers found a plastic baggie containing a bent spoon with the initial "R" on it's handle. The spoon contained residue
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