No. 13331
I N THE SUPREME COURT O F THE STATE OF M N A A
OTN
1977
THE STATE O MONTANA,
F
P l a i n t i f f and R e s p o n d e n t ,
-vs-
H R L ARMSTRONG,
AOD
D e f e n d a n t and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e Third J u d i c i a l D i s t r i c t ,
H o n o r a b l e R o b e r t J . Boyd, J u d q e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
Greg S k a k l e s a r g u e d , Anaconda, P o n t a n a
For Respondent:
Hon. M i c h a e l G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Denny I l o r e e n , A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d ,
H e l e n a , Montana
James J . Masar, County A t t o r n e y , D e e r Lodge, Montana
Submitted: Plarch 2 1 , 1977
Decided : APR - 6 19TP
F i l e d : BYR
--
Clerk
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
Defendant was convicted of an attempted escape from
the Montana State Prison by jury verdict in the district court,
Powell County. Honorable Robert J. Boyd, District Judge, denied
defendant's motion for a new trial, entered judgment of convic-
tion, and sentenced defendant to an additional term of three
years in prison. Defendant now appeals from judgment of convic-
tion.
On May 21, 1975, defendant Harold Armstrong and another
inmate of Montana State Prison were reported missing from the
9:00 p.m. count. A search was instigated and they were located
in a tunnel beneath the prison kitchen. Both inmates were wear-
ing two sets of clothing. Two cut off shovels and two bottles
of water were found in the tunnel.
An information was filed in the district court, Powell
County, on May 29 charging the two inmates with an attempted
escape, a felony, in violation of section 94-4-103, R.C.M. 1947.
Defendant moved for leave to represent himself and have a named
attorney appointed as co-counsel. Defendant's motions, in
effect, were granted. Defendant Armstrong entered a plea of
"not guilty". He moved that " * * * the original copy of the
Information, all evidence and papers and sworn statements from
the State's witnesses" be furnished him. The county attorney
indicated that he would provide defendant with whatever docu-
ments he had on the case. The record does not disclose that
the district court ever formally ruled on defendant's motion.
Thereafter defendant moved for severance of his trial
from that of the other inmate. A separate trial was granted
by the district court.
Defendant's case came on for trial on November 17, 1975.
Following the swearing of the jury, the opening statement by
the state, and the reservation by defendant of his opening
statement, the trial judge read an omnibus cautionary instruc-
tion to the jury substantially in the language of MJIG, In-
struction No. 1.00.
Evidence was received on behalf of both the state and
defendant. Defendant took the witness stand in his own behalf
and admitted being in the tunnel under the prison kitchen. He
claimed he did not intend to escape but simply wanted to draw
the attention of the people, and the court to his dissatisfaction
with the services of his court-appointed attorney on appeal from
his conviction for murder and robbery in the district court,
Yellowstone County.
During the course of the closing argument for the defense,
defendant's attorney attempted to read a statement of the de-
fendant to the jury as indicated by the following remarks:
" * * * I will say that you can believe this
from him, he has convinced me, and he did get the
desired results because I am presently working on
his appeal. Harold is quite an eloquent individual
and last night he wrote down a few things, and I
just don't like to read anything to a jury because
it seems that it is put-on. He cannot understand
of any plan that was ever presented by the State.
He states that they presented no intent or an
attempt to do anything. I think that they didn't
present anything relative to the attempt unless
it is guilt by location, or because it was attempt
because he was down there --
"MR. MASAR: We object to the reading of anything
that has been written by the Defendant as improper
argument, the Defendant was on the witness stand
and could have testified, and this is improper
argument outside the issues and improper argument.
"THE COURT: That is improper argument, Counselor."
Thereafter defendant's attorney went on to argue other matters.
Defendant was convicted, his motion for new trial was
denied, a judgment of conviction was entered, and he was sentenced
to a three year term to be served consecutively with the term of
imprisonment he was then serving. Defendant appeals.
Defendant assigns three specifications of error:
(1) Error by the district court in refusing to permit
co-counsel for defendant to read a statement from defendant
to the jury during final argument.
(2) Error by the district court in failing to rule on
defendant's motion to produce all evidence, books, papers and
sworn statements of state witnesses.
(3) Error by the district court in reading the omnibus
jury instruction to the jury prior to the reception of evidence.
Directing our attention to the first issue, defendant
contends that the refusal of the district court to permit his
co-counsel to read defendant's statement to the jury constituted
violation of his right to self-representation, a denial of
assistance of counsel, and a prejudicial abuse of discretion.
We are advised by counsel for defendant that the state-
ment of defendant consisted of argument, not evidence, and al-
though we do not have a copy of the statement, we are advised
that it dealt with lack of criminal intent.
Defendant's argument is based on the assumption that
he should have had the right to address the jury himself in
this case. This is not correct. Defendant's co-counsel had
conducted the entire defense up to that point. There is no in-
dication that defendant ever wished to participate in the open-
ing statement, examination of witnesses, or argue before the
judge or jury. Where a defendant is represented by counsel
throughout the trial, he is not entitled, as a matter of right,
to address the jury during closing argument. United States v.
Dellinger, 472 F.2d 340 (1972), cert.den. 410 U.S, 970; State
v. Brewer, 73 Wash.2d 58, 436 P.2d 473; Moore v. People, 171
Colo. 338, 467 P.2d 50. Because defendant had no right to
address the jury personally he had no right to have his note
read to the jury.
The second issue is whether the district court's failure
to rule on defendant's motion to produce "the original copy of
the information, all evidence and papers and sworn statements
from the state's witnesses" constitutes reversible error.
The record does not disclose that the judge ever ruled
on the motion. As noted from what has been said heretofore,
the county attorney agreed to provide defendant with whatever
documents he had on the case. There is no complaint anywhere
in the record by defendant that he did not receive these papers
or that he was prejudiced in any way by the district court's
failure to rule upon his motion. Any error which does not
affect the substantial rights of the defendant constitutes
"harmless error" and will not constitute~undsfor reversal on
appeal. Section 95-2425, R.C.M. 1947. Rule 14, M.R.App.Civ.P.
Finally defendant contends that the district court com-
mitted error in reading the general omnibus cautionary instruc-
tion to the jury prior to the reception of evidence without
giving him any opportunity to object, argue its validity, or
settle it in the manner of settlement of jury instructions at
the conclusion of the evidence.
The giving of a preliminary jury instruction prior to
the introduction of evidence is a common practice in the dis-
trict courts of Montana and has been held proper in State v.
McKenzie, Mont . , 557 P.2d 1023, 33 St.Rep. 1043, citing
section 95-1911, R.C.M. 1947.
Here defendant also failed to object to the giving of
the preliminary instruction at any time thereafter during the
trial. On appeal, this Court will not consider issues which
defendant did not raise in the trial court. Spencer v. Robert-
son, 151 Mont. 507, 445 P.2d 48; Clark v. Worrall, 146 Mont.
374, 406 P.2d 822; State Highway Comm'n v. Yost Farm Co., 142
Mont. 239, 384 P.2d 277.
The judgment of conviction is affirmed.
Justice
- 5 -
Mr. Justice Daniel J. Shea, deeming himself disqualified,
did not participate.