No. 14704
I N THE SUPREME COURT OF THE STATE OF MONTANA
1980
STATE OF MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
VS .
WILLIAM N W O ROSE,
E TN
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 Fourth J u d i c i a l D i s t r i c t ,
Honorable J a c k L . Green, J u d g e p r e s i d i n g .
M i s s o u l a County.
C o u n s e l o f Record:
For Appellant:
H i r s t , D o s t a l and Withrow, M i s s o u l a , Montana
J o h n D o s t a l a r g u e d , l T i s s o u l a , Montana
M i c h a e l J. Sherwood, M i s s o u l a , Montana
F o r Respondent :
Honorable Mike 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
C h r i s Tweeten a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l ,
H e l e n a , Montana
R o b e r t L. Deschamps 111, County A t t o r n e y , M i s s o u l a ,
Montana
Karen Townsend, Deputy County A t t o r n e y a r g u e d and
Tom B e e r s , Deputy County A t t o r n e y a r g u e d , M i s s o u l a ,
Montana
Submitted: March 2 , 1980
Decided:
Filed:
Mr. Chief Justice Frank I Haswell delivered the Opinion of
.
the Court.
Defendant appeals from a denial of his motion for a new
trial following his conviction of burglary by a jury in the
District Court of Missoula County.
Dr. John Opalka was on vacation in March 1978. A neigh-
bor, Rae Dabbert, had been asked to watch the Opalka home, to
water plants and pick up mail. On March 2, 1978, she was in the
home and all was in order. On Sunday, March 5 , Mrs. Dabbert
noticed that a door into the garage was open and that a number of
rooms were in disarray. She called the Missoula County sheriff's
office and Deputy Willis Hintz arrived shortly thereafter.
Mrs. Dabbert and Officer Hintz searched the house and
discovered that a television set was missing and that there were
some tools on a couch. They also saw tracks in the snow behind
the house. They could not tell whether the tracks had been made
by one or by two people. Officer Hintz found pry marks on a door
leading into the living room and on the garage door.
Dr. Opalka and his wife returned to Missoula on Monday,
March 6, 1978. Later that day Dr. Opalka spoke with Deputy Phil
Nobis who was investigating the crime. A list of the missing
property was prepared at that time. Dr. Opalka indicated that
six guns were taken, two containers of coins with approximately
$400 in each, a portable typewriter, a portable television and
other miscellaneous items.
On February 27 or 28, the defendant had been at Dr. Opalka's
clinic demanding a cash refund for some returned pills. The
receptionist informed the defendant at that time that she could
not refund the money until the doctor returned and that the doctor
would not be back for a week. The defendant had left the clinic
extremely upset.
In the early morning hours of March 5, 1978, a University
of Montana security officer ticketed an illegally parked vehicle
belonging to Richard Cory. The officer observed in the back seat
of the car a portable typewriter and a 5 gallon green jar with
coins in it. On Friday, March 10, Missoula police learned that
these items had been seen in Cory's car. It was also &ned that
Cory and the defendant were associates and that the defendant
had recently had some guns in his possession. The police found
Cory and a voluntary statement was taken. In this statement Cory
told the police that the defendant had been angry at Dr. Opalka
because he could not get a refund on some pills and defendant
had decided to "rip off" the doctor. Cory stated that the defen-
dant had committed the burglary on his own and had taken some guns
to the residence of Jane Gardiner. Cory denied any participation
in the Opalka burglary.
After taking this statement police officers went to the
Gardiner residence. Stan Gardiner was present and he voluntarily
turned over four guns to the officers. A short time later his
ex-wife Jane Gardiner returned to the residence. Two additional
guns were recovered from her car. A receipt was prepared for the
guns and they were returned to Dr. Opalka the next morning.
Early in the morning on March 11, 1978, the defendant was
arrested in Darby, Montana, in a car belonging to Madeline Freeburg.
The defendant was charged with burglary, or in the alternative,
theft of the six guns. He pleaded not guilty and interposed a
defense of alibi. Madeline Freeburg was listed as his alibi wit-
ness.
By the time of the trial Cory had changed his original
version of the burglary. He testified that he and the defendant
had committed the burglary together. In this testimony he out-
lined the details of the burglary. He stated that after the crime
was committed the defendant had gone to Butte to try to sell the
guns. Cory also testified that he and the defendant went to Polson
the next Tuesday in an attempt to sell two guns. hey had no
success in their attempts at selling the guns. The prosecution
introduced the testimony of several witnesses which tended to
link Cory and the defendant together on the night the crime was
committed.
The defendant testified on his own behalf at the trial.
He testified that he had nothing to do with the burglary. He
stated that he did tell Cory about the visit to the Opalka Clinic,
but that the idea of burglarizing the Opalka residence was Cory's.
The defendant stated that he had not seen Cory on the night of
the burglary, but that he did drive to Polson with Cory in an
attempt to sell the guns. He testified that he did not know at
that time that the guns had been stolen. A few days later,
according to the defendant, he loaned his landlady's car to Cory
for two or three hours in the morning. In the afternoon, after he
had gotten the car back, the defendant received a phone call from
Cory. Cory told the defendant that he (Cory) had left something
in the car trunk and for the defendant to "Get that out of there."
As a result, the defendant drove to Lolo, Montana, and stashed
the guns in a pasture. The defendant and Cory later recovered the
guns.
Madeline Freeburg, who was the defendant's landlady, test-
ified that defendant had been home studying all night on March
4, 1978, the night of the burglary. Shirley Marshall, an acquain-
tance of defendant's, stated that the defendant had been at her
home on the evening of March 4, and that he had left at about
11:OO p.m. The defendant testified that he had been with Shirley
Marshall that evening and that he had gone home at about midnight.
He denied being with Cory that night and he denied being at any
bars that night.
Craig Howard testified as a rebuttal witness for the State.
Howard testified that the defendant had been in a Missoula bar
at 10:30 or 11:OO p.m. on March 4, 1978.
The case was submitted to the jury on the alternative
charges of theft and burglary. The jury was instructed that
they could only find the defendant guilty of one of the two
charges. The jury returned a verdict of guilty to the burglary
count. The defendant filed a motion for a new trial which was
denied. The defendant was sentenced to the State Prison for a
period of 25 years. The District Court ordered that the defen-
dant be declared ineligible for parole or furlough during the
term of the sentence.
The following issues are raised on appeal:
1. Was there sufficient corroboration of the accomplice's
testimony?
2. Was the motion for a new trial properly denied?
3. Was Instruction No. 20 properly given to the jury?
4. Did the defendant have effective assistance of counsel?
Under Montana law a defendant cannot be convicted of a
crime solely upon the testimony of an accomplice. Section 46-16-
213, MCA, provides:
"A conviction cannot be had on the testimony of
one responsible or legally accountable for the
same offense, as defined in 45-2-301, unless the
testimony is corroborated by other evidence which
in itself and without the aid of the testimony of
the one responsible or legally accountable for the
same offense tends to connect the defendant with
the commission of the offense. The corroboration
is not sufficient if it merely shows the commis-
sion of the offense or the circumstances thereof."
In the instant case the prosecution was largely based upon
the testimony of Richard Cory, an admitted accomplice to the
burglary. The defendant claims that, absent the testimony of Cory,
there is not sufficient, independent evidence which "tends to
connect" him with the burglary.
The reason for the rule on corroboration is firmly grounded
in common-experience. "The testimony of an accomplice is apt to
be highly colored and biased. Moreover, it is to be expected that
an accomplice may, or has good reason to, place his own welfare
and freedom above that of the defendant." 2 Wharton's Criminal
Evidence 5445 (12th ed. 1955).
This Court has recently outlined the law of corroboration
of 'accomplicesas follows:
"The sufficiency of evidence necessary to
corroborate accomplice testimony is a question
of law. State v. Standley (1978)r Mont. , 586
P.2d 1075, 1078, 35 St.Rep. 1631, 1635; State v.
Perry (1973), 161 Mont. 155, 161, 505 P.2d 113, 117.
In defining the quantum and character of proof
required to corroborate accomplice testimony, a sub-
stantial body of case law has evolved.
"To be sufficient, corroborating evidence must show
more than that a crime was in fact committed or the
circumstances of its commission. State v. Keckonen
(1938), 107 Mont. 253, 263, 84 P.2d 341, 345. It
must raise more than a suspicion of the defendant's
involvement in, or opportunity to commit, the crime
charged. State v. Gangner (1957), 130 Mont. 533, 535,
305 P.2d 338, 339. But corroborative evidence need
not be sufficient, by itself, to support a defendant's
conviction or even to make out a prima facie case
against him. State v. Ritz (1922), 65 Mont. 180, 186,
211 P. 298, 300; State v Stevenson (1902), 26 Mont.
.
332, 334, 67 P. 1001, 1002. Corroborating evidence
may be circumstantial (State v. Harmon (1959), 135
Mont. 227, 233, 340 P.2d 128, 131) and can come from
the defendant or his witnesses. State v Phillips
.
(1953), 127 Mont. 381, 387, 264 P.2d 1009, 1012.
"With these principles in mind, each case must be
examined on its particular facts to determine if the
evidence tends, in and of itself, to prove defen-
dant's connection with the crime charged.
"One accomplice cannot supply the independent evi-
dence necessary to corroborate another accomplice.
State v Bolton (1922), 65 Mont. 74, 88, 212 P. 504,
.
509; 30 Am.Jur.2d Evidence, Sec. 1156 . . ." State
v. Kemp (1979), Mont . , 597 P.2d 96, 99, 36
St.Rep. 1215, 1217-1218.
In the present case the only independent evidence which
tends to connect the defendant with the burglary is his posses-
sion of the stolen guns. The defendant was in possession of the
guns on at least two occasions by his own admission. He and Cory
had the guns when they drove to Polson and the defendant had sole
possession when he stashed the guns in the pasture near Lolo. The
defendant contends that this tends to connect him with theft (of
which he was acquitted) but not burglary, because burglary re-
quires an unlawful entering of an occupied structure. Section
45-6-204 (I), MCA. We disagree.
"It may be shown, by way of corroboration , .. that
the defendant was in possession of the stolen property involved
in the crime charged . . ." 3 Wharton's Criminal Evidence S649
(13th ed. 1972). This rule extends to the crime of burglary.
"In prosecutions for larceny, robbery, and. burglary, an accom-
plice may be corroborated by proof of the possession of the
stolen property by the defendant charged with the crime." 2
Wharton's Criminal Evidence S467 (12th ed, 1955). In the recent
case of State v. Williams (1979), Mont . , 604 P.2d 1224,
1230, 36 St.Rep. 2328, 2336, we held that constructive possession
of a stolen pistol sufficiently corroborated the testimony of an
accomplice where the defendant was convicted of conspiracy to
commit a burglary.
In the present case the defendant attempted to explain
away his possession of the stolen guns. In the similar case of
People v. Hughey (1926), 7:' Cal.App. 541, 250 P 406, the defen-
.
dant had been convicted of conspiracy to commit robbery. On appeal
he alleged that there was not sufficient corroborating evidence
to support the testimony of two accomplices. The Court noted
that the defendant's unexplained possession.of items taken in the
burglary was a circumstance tending to show guilt. As to the
defendant's explanation of his possession of these items, the Court
said:
"In the instant case appellant attempted to ex-
plain his possession of the stolen pin. This
testimony, however, the jury was not bound to
believe, and if disbelieved, the fact of such
possession tended strongly and was sufficient
to corroborate the testimony of tl acccmplices
!e
mentioned." 250 P. at 407.
We agree with this reasoning. Defendant's possession of
the stolen guns was sufficient as a matter of law to corroborate
Cory's testimony. Whether the defendant's explanation was suffi-
cient to explain away the possession was a factual question for
the jury.
In State v. Broell (1930), 87 Mont. 284, 286 P. 1108,
the defendant contended that his possession of stolen property
did not sufficiently corroborate an accomplice's testimony in a
larceny case. The defendant attempted to explain away the posses-
sion. This Court held that the possession tended to con
defendant with the larceny. We said, "Whether the expla
were sufficiently satisfactory to raise a reasonable dou
minds of the jurors as to defendant's connection with th
charged was a question for the jury's determination ..
at 292.
For cases from other jurisdictions which have h
possession of stolen property sufficiently corroborates
plice's testimony see: State v. Brown (1973), 13 0r.App
P.2d 234; Turci v. State (0kla.Crim. 1971), 482 P.2d 611
State v. Oliver (1969), 9 Ariz.App. 364, 452 P.2d 529.
that there was sufficient corroborative evidence to supp
testimony of Cory.
The defendant next alleges that his motion for
trial was improperly denied. At a hearing on the matter
District Court the defense presented the testimony of Ro
and Maynard Owns Medicine. Conn testified that he had s
in Cory's room at 10:30 a.m. on Sunday, March 5. Conn h
there to collect some money that Cory owed him. Cory said that
he did not have the money, but that he had a TV set, several guns
and some coins. Cory finally paid Conn $50 with quarters and
fifty-cent pieces. Maynard Owns Medicine testified that he was
with Cory in a Missoula bar on March 4. Cory asked him if he knew
where he could get rid of some guns. Later that same day, Owns
Medicine saw several rifles and shotguns in the trunk of Cory's car.
The testimony of these two men was impeached to a large
degree. Conn had written a letter to his parole officer stating
that he had not been in Montana from January until March 31. Also,
during this hearing Officer Weaver testified that he had questioned
Maynard Owns Medicine concerning the Opalka's burglary. At the
time of the questioning Maynard said nothing to Weaver about the
guns in the trunk of Cory's car. At the end of the hearing the
judge said:
"No, I think as you say, the Court has been lied
to today. No further memorandums are required.
The Motion for a new trial is denied."
Sections 46-16-702(1), MCA, provides that a court may
grant the defendant a new trial if required in the interest of
justice. The language clearly indicates that the granting of a
new trial is within the sound discretion of the District Court
judge. Montana case law is to the same effect. State v. Collett
(1946), 118 Mont. 473, 481, 167 P.2d 584, 588; State v. Greeno
(1959), 135 Mont. 580, 585, 342 P.2d 1052, 1055. This Court noted
in State v. Briner (1977), 173 Mont. 185, 193, 567 P.2d 35, 39,
that the trial judge is " . .. in the best position to weigh the
merits . . ." of the evidence which is presented to support an
application for a new trial. In the present case the trial judge
felt that he had been lied to at the hearing on the matter. This
Court should not try to second-guess the trial judge in this regard.
Because it does not appear that the trial judge abused his discre-
tion, there was no error committed in denying the application for
a new trial.
The defendant next contends that the giving of instruction
No. 20 was error. This instruction provides:
"You are instructed that one who is found in the
possession of property that was stolen from burglar-
ized premises is bound to explain such possession
in order to remove the effect of that fact as a cir-
cumstance to be considered with all other evidence
pointing to his guilt."
Section 45-6-304, MCA, provides:
"Possession of stolen property shall not constitute
proof of the commission of the offense of theft.
Such fact shall place a burden on the possessor to
remove the effect of such fact as a circumstance to
be considered with all other evidence pointing to
his guilt."
The defendant argues that without the cautionary preface
the instruction would allow the jury to convict him of burglary
upon proof that he possessed the stolen property. A similar
instruction was given in State v. Greeno (1959), 135 Mont. 580, 590,
342 P.2d 1052, 1057. The instruction in Greeno was declared by
this Court to be error because it deprived the defendant of his
assumption of innocence. The instruction stated, in part, that:
" . ..if he [the defendant] gives a false
account of how he acquired that possession or,
having reasonable opportunity to show that his
possession was honestly acquired he refuses or
fails to do so, such conduct is a circumstance
that tends to show his guilt."
The instruction from Greeno was clearly different than the
one in the present case. The Greeno instruction told the jury
that a failure of the dzfmdant to testify would tend to show
his guilt. Instruction No. 20, in the present case, merely allows
the jury to consider the defendant's possession of the stolen
goods as one factor indicating the defendant's guilt. In State v.
Gray (1968), 152 Mont. 145, 447 P.2d 475, this Court again considered
a similar instruction and made the following observations:
" ...we think the better reasoned cases hold
that such instructions are not erroneous or
prejudicial. In a very recent case, Arizona v.
Pederson, 102 Ariz. 60, 424 P.2d 810 (1967)
cert-denied 389 U.S. 867, 88 S.Ct. 138, 19 L.Ed.2d
142, the lower court instructed the jury:
"'The burden is on who is found in the possession
of property that was stolen from burglarized premises
to explain such possession in order to remove the
effect of that fact as a circumstance to be considered
with all other evidence pointing to his guilt.'
"The Arizona Supreme Court found no error in the
instruction and went on to say at page 818 of 424
P.2d:
"'As we read the subject instruction, it appears
to state the law correctly for in effect the in-
struction says that if defendants had wished to
remove the effect of possession of stolen goods
from the facts and circumstances to be considered
by the jury, defendants should have offered some
explanation of their possession of such goods.'
"We agree. In effect all the instruction in ques-
tion here says is that if defendant wanted to prevent
the jury from considering possession as a circumstance
indicating guilt, then he should, by testifying
himself, by having another testify, or by introducing
real evidence, explain his possession. The rule
equally applies to all evidence which a defendant
would remove as a circumstance pointing to his guilt;
that is, he must by some means explain away such
evidence." 152 Mont. at 152, 447 P.2d at 478-79.
The same reasoning applies in the instant case. The
instruction told the jury that possession of the stolen property
was merely one item that they could consider in determining whether
the defendant committed the crime. This is true of any evidence
presented during the trial. The defendant is not obligated to
explain away this circumstance, but if he wishes to do so, the
opportunity is there. This was an opportunity which the defendant
elected to accept in this case. As such, the instruction was not
error.
Finally, the defendant alleges that he was denied effective
assistance of counsel.
The right to counsel is guaranteed by the Sixth Amendment
of the United States Constitution and by Article 11, section 24
of the Montana Constitution. This Court has said that these con-
stitutional provisions guarantee effective assistance of counsel.
State v. Bubnash (1961), 139 Mont. 517, 366 P.2d 155.
In State v. McElveen (1975), 168 Mont. 500, 544 P.2d 820,
this Court set aside a conviction because the defendant had been
denied effective assistance of counsel. The defendant's trial
attorney had done little or no investigation or preparation prior
to trial. During the trial only two objections were made by the
defense and one of these had been made by the defendant himself.
In the McElveen case the Court used the "farce and sham
test" to determine whether the defendant had been denied effective
assistance of counsel. See State v. Lopez (1980), Mont . I
605 P.2d 178, 37 St.Rep. 36. In the instant case the parties
have urged us to adopt a different test. The new test is known
as the "reasonably effective assistance" test, and may be stated
as follows:
"Persons accused of crime are entitled to the
effective assistance of counsel acting within
the range of competence demanded of attorneys
in criminal cases."
We hereby adopt this standard. The reasons for its
adoption are many. As was stated in Cooper v. Fitzharris (Ninth
Cir. 1978), 586 F.2d 1325:
"A line of Supreme Court decisions, culminating
in McMann v. Richardson, 397 U.S. 759 . .
. (1970),
undercut the notion that the command of the Sixth
Amendment was satisfied merely by appointment of a
reputable member of the bar and that counsel's
performance after appointment need only meet due
process standards. It was established that persons
accused of crime are entitled not merely to counsel's
presence but to effective assistance of counsel,
and that effective assistance means assistance
'within the range of competence demanded of attor-
neys in criminal cases.'" 586 F.2d 1329.
The new standard, besides providing increased protection
of the defendant's constitutional right, also provides the courts
with a more objective standard. The old "farce and sham test"
required a subjective judgment whereas the new test may be applied
by reference to a more objective standard, viz. the range of com-
petence demanded of attorneys in criminal cases.
Finally, we are compelled to adopt this standard because
there may be instances where the trial has not been a farce or
a sham and yet the defendant has not been represented within the
range of competence demanded of attorneys in criminal cases. In
such a case the defendant would have been denied effective assis-
tance of counsel, and the "farce and sham" standard would not have
protected constitutional rights.
In the present case the defendant has presented five
specific failures committed by his trial attorney. In order for
us to find that the failures require reversal we must be able to
say that they are "errors a reasonable competent attorney acting
as a diligent conscientious advocate would not have made, for
that is the constitutional standard." Cooper, supra, 586 F.2d
The first failure alleged by defendant is counsel's fail-
ure to object to hearsay evidence to the effect that the defen-
dant had delivered to Stan Gardiner guns stolen from the Opalka
residence. We agree that this was hearsay and should not have
been put before the jury. We note, however, that prior to trial,
defense counsel made a motion in limine to have this evidence ex-
cluded. The judge did not rule on the motion at that time, and
subsequently, during trial, the evidence came in without objection.
From this it is apparent that counsel had prepared for the case
and had made the correct motion. He should have objected to the
hearsay evidence during trial, but this in itself does not fall
outside of the range of competent counsel.
Defendant next contends that it was error for counsel to
fail to object to the inquiry into a defense witness'prior criminal
record. Rule 609, Mont.R.Evid.,provides that for the purpose of
attacking the credibility of a witness, evidence that he has been
convicted of a crime is not admissible. Once again, defense coun-
sel should have objected to this testimony, however, in the con-
text of this case, this failure does not appear as if it prejudiced
the defendant.
"When the claim of ineffective assistance of
counsel rests upon specific acts and omissions
of counsel at trial, as it does in this case,
relief will be granted only if it appears that
the defendant was prejudiced by counsel's
conduct. We have found no holding to the con-
trary." Cooper v. Fitzharris, supra, 586 F.2d
at 1331.
Also, in a case which involved at least a dozen witnesses and
several days of testimony, this failure to object, by itself,
does not fall outside of the range of competent counsel.
The defendant next contends that defense counsel committed
error when he failed to object to t.he testimony of a rebuttal
witness, Craig Howard. Defense counsel did not receive notice of
Howard's testimony. Secticn 46-15-301(1), MCA, provides th2t the
State need not provide the defendant with the names of rebuttal
witnesses. In Wardius v. Oregon (1973), 412 U.S. 470, 93 S.Ct.
2208, 37 L Ed 2d 82, the United States Supreme Court held that
Oregon's statute requiring a defendant wishing to interpose a de-
fense of alibi to furnish notice and a list of witnesses violated
due process, because it did not provide reciprocal discovery for
the defendant of the State's rebuttal witnesses. The defendant
argues that counsel was ineffective in not moving to exclude
Howard's testimony in reliance on Wardius.
In State v. Maldonado (1978), Mont. , 578 P.2d 296,
304, 35 St-Rep. 420, 430, this Court said that the decision 3f
counsel to challenge the constitutionality of a statute is a
matter of legal judgment. Counsel's failure to raise the Wardius
issue may seem like error in retrospect. This error, however,
certainly does not fall outside of the range of competent counsel.
Next, the defendant contends that defense counsel erred
in not challenging a certain juror.
On the last day of trial this juror informed the Court
that he had been mistaken in denying acquaintance with Richard
Cory during voir dire. Apparently the juror and Cory's brother
had been acquaintances 15 years prior to the trial. The juror
stated that this would not influence him. This failure to chal-
lenge was not error.
The defendant finally contends that defense counsel erred
in not moving to "quash" the information for lack of probable
cause. The affidavit in support of the motion for leave to file
relied to a large extent upon the hearsay allegations of Richard
Cory. The defendant contends that counsel should have moved to
"quash" because Cory's statements were not supported by facts
tending to show their reliability under the rules announced in
Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L Ed 2d
723.
The Aguilar case is easily distinguishable from the case
at hand. In Asuilar the defective affidavit concerned a search
warrant rather than an affidavit in support of a leave to file an
information. Also, in Aguilar, the application for the search
warrant merely stated that "Affiants have received reliable in-
formation from a credible person and do believe that" narcotics
were on the defendant's premises. The problem with this appli-
cation, according to the Supreme Court, was that the informant
was unnamed; that there were no underlying circumstances presented
from which the informant concluded that the narcotics were where
he claimed they were; and that there were no underlying circum-
stances which would support the unnamed informant's credibility.
In the present case the informant is named as being Richard Cory
and it is clear that Cory is speaking from his own personal
knowledge as to the defendant's involvement in the burglary. We
are not, therefore,faced with an application that lacks the
underlying circumstances which are required by Aguilar. Aguilar
simply does not apply. It was not error for the defense counsel
not to move to quash for lack of probable cause.
We have read the record in this case. The defense counsel
was obviously prepared and competent. He did not do a perfect
job, but that is not the standard.
In State v. Forsness (1972), 159 Mont. 105, 110, 495
P.2d 176, 178-79, this Court said:
"Claimed inadequacy of counsel must not be tested
by a greater sophistication of appellate counsel,
nor by that counsel's unrivaled opportunity to
study the record at leisure and cite different
tactics of perhaps doubtful efficacy. Success is
not the test of efficient counsel, frequently
neither vigor, zeal, nor skill can overcome the
truth. "
and in State v. Noller (1963), 142 Mont. 35, 38, 381 P.2d 293, 294:
" .. . Hindsight cannot now be used to say what
perhaps could have been done to achieve a possible
but highly speculative result . . ."
Despite the errors made by defense counsel, the defen-
dant received effective assistance of cf:~ur.sel
and this assistance
was well within the range of competence demanded of attorneys
in criminal cases.
Affirmed.
Chief Justice
Mr. Justice Daniel J. Shea deeming himself disqualified, did
not participate in this case.