State v. Austad

IN THE SUPREME COURT OF THE STATE OF MONTANA

No. 80-319

THE STATE OF MONTANA,

Plaintiff and Respondent,

GENE ANDREW AUSTAD,

Defendant and Appellant.
....

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PER CURIAM:
The following paragraphs are deleted from this opinion
at page 17-18:

"Before the adoption of the present Criminal
Procedure Code, Title 46, MCA, this Court
had relied upon section 94-8207, R.C.M.,
1947, for its well-established rule that
"prejudice in a criminal case will not be
presumed, but rather must appear from the
denial or invasion of a substantial right
from which the law presumes prejudice ...
It is up to this court to decide whether an
error affects the substantial rights of the
defendant and the defendant must demonstrate
prejudice from the record." State v, Straight
(1959), 136 Mont. 255, 264-265, 347 P.2d
482, 488. Cf. State v. Bubnash (1963), 142
Mont. 377, 382 P.2d 830. This rule has been
substantially adopted in such cases as State
v. LaMere (1980), Mont. , 621 P. 2d
462, 465, 37 St.Rep. 1936, 1940, where we
stated:
"'This Court will not presume prejudice. If
it did exist, it is incumbent on defendant
to bring the evidence of prejudice before us
(citation omitted). We find no reversible
error in the judge's limitation [of voir
dire questioning]. '
"Defendant's brief is silent as to prejudice
resulting from the trial court's correction of
its technical error. We see no prejudice. We
find no reversible error in the inconsistent
rulings of the trial court on for cause chal-
lenges to government employees."
The following paragraph is substituted for the above paragraphs:
"Where, as here, the record shows that the
trial court's error affected neither consti-
tutional nor jurisdictional rights of the
defendant, and defendant has failed to demon-
strate prejudice to his substantial rights
resulting from the error, this Court will not
presume prejudice. See State v. LaMere (1980),
Mont. , 621 P.2d 462, 465, 37 St.Rep.
1936, 1940. We find no reversible error in
the inconsistent rulings by the trial court
on for cause challenges to government employ-
ees. "

As modified, the opinion stands; the petition for
rehearing is denied.

DATED this %&a
%dy of March, 1982.

%*A
Chief Justice
 No. 80-319

I N THE SUPREME COURT O THE STATE O M N A A
F F OTN

1981

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.

GENE ANDREW AUSTAD,

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 Eighth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f C a s c a d e
Honorable H. W i l l i a m Coder, Judge p r e s i d i n g

C o u n s e l o f Record:

For A p p e l l a n t :

D a n i e l Donovan a r g u e d , P u b l i c D e f e n d e r , Great F a l l s ,
Montana

F o r Respondent:

Hon. 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
Mary B. T r o l a n d 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
J. F r e d Bourdeau, County A t t o r n e y , G r e a t F a l l s , Montana

--

Submitted: November 30, 1 9 8 1

Decided : f ~ 2 5 \981
0
Filed: FEB 2 5 1 9 8

Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the
Court .
Defendant Gene Austad appeals from a jury verdict in
the Eighth Judicial District Court, Cascade County, in which
he was found guilty of deliberate homicide, aggravated

robbery, sexual intercourse without consent, and aggravated

burglary, all felonies. He was sentenced to life plus 120
years in prison and designated a dangerous offender. We
affirm the District Court.

Defendant raises the following issues:
1. Whether the trial court erred in ruling that
defendant was mentally and physically fit to proceed to

trial.

2. Whether the trial court erred in admitting into
evidence certain photographs of the victim.
3. Whether the trial court erred in refusing to grant

defendant a change of venue.

4. Whether the trial court prejudiced the defendant
by making inconsistent rulings on challenges for cause of
prospective jurors.

5. Whether the trial court erred in allowing the
State to present evidence of defendant's character and his
prior felony conviction, ruling that he had "opened the

door. I
'
6. Whether the trial court erred in admitting into
evidence State's exhibit No. 4 (the vest) and related expert
testimony, over objections as to proper identification,
foundation and chain of custody.
7. Whether the trial court erred in denying defendant's

motion to take the depositions of expert witnesses of the
State who lived out of state and refused to be interviewed

by the defense over the phone.
 8. Whether the trial court erred in giving instruction
No. 14, which involved "flight of a person immediately after

the commission of a crime."

9. Whether the trial court erred in its treatment of
certain defense motions by failing to make rulings, failing
to state specific grounds for its rulings, and reversing
some of its earlier rulings without notice or without

adequate notice.

Defendant raised a number of small issues; we will
address those issues in their turn.
Facts and Procedures

At approximately 1:00 o'clock A.M. on April 22, 1978,
two members of the Great Falls Police Department stopped a

car for speeding. The driver (defendant) and a male passenger

(Clifford Elliott) got out of the vehicle at the officers'
request. On the pretext of getting his driver's license,

defendant got back in the car, and sped off. The officers
immediately gave chase, leaving the passenger behind.

Defendant was observed throwing papers and various articles
of clothing out the car window as he swerved through traffic

on Tenth Avenue South, a main thoroughfare in Great Falls.
The chase, which proceeded at about 90 M.P.H., ended when
defendant lost control and crashed into several cars on the
lot of a local car dealer. As a result of the wreck, defendant

was comatose for weeks and spent months in the hospital.
After his accident, he had and continues to have amnesia,
some paralysis and muscle weakness, a speech impairment and
other physical disabilities. He can walk with a walker but
is usually confined to a bed or a wheelchair. His speech is
coherent, but slow and occasionally difficult to understand.
 At the time of the wreck, a police officer investigating
the accident noticed many papers in the car, and could make

out the name "Wald" on some of them. He suspected a burglary,

and police were dispatched to the Wald address. There they
found a broken window and a door slightly ajar. In the
bedroom they found the naked body of 69-year-old Mabel Wald,
badly beaten, with a butcher knife in her chest.

Further investigation revealed the following information.
Among the items thrown out of defendant's car were bonds

made out to Blaine and Mabel Wald and a vest containing
glass particles similar to glass particles from the broken-
out window of the victim's home, through which the initial
entry was apparently made. Among the items inside the car

were numerous articles belonging to the victim. Defendant's

thumb print was found on a lamp in the victim's bedroom.
The lamp was next to the victim's head, and its base was
dented. Tire tracks in a nearby alley were similar to
those defendant's car would have left. An autopsy on the
victim (a widow) indicated recent sexual activity. The

defendant, in the course of his job with a moving company,
had helped the victim move into her home two days before she

was murdered. At the time of the move, the victim had
indicated twice in defendant's presence that she herself
would move the strongboxes containing her currency.

Clifford Elliott was later apprehended and interrogated.
His testimony revealed that at about 8:00 o'clock P.M. the
night of the crime, in a Great Falls bar, defendant had

offered to pay Elliott $100.00 to go to the home of a woman
he had just moved, to steal some items. Elliott refused;
when the defendant returned to the bar around midnight
wanting to show Elliott something in his car, Elliott accompanied
him outside. There defendant showed him a purse, papers and
a strongbox in defendant's car.

On April 27, 1978, defendant was charged by information
with deliberate homicide, aggravated robbery, sexual inter-
course without consent, and aggravated burglary.

Defendant was not served with a copy of the information
until September 18, 1978, because the State feared the
injuries he had sustained might interfere with defendant's

ability to communicate and comprehend. He was arraigned on
December 27, 1978, remaining silent, and a not guilty plea
to all charges was entered in his behalf.

In February of 1979, defendant was released from the
hospital. His bail was reduced, permitting him to be taken

to the home of his parents where he would be given the
personal care then indicated by his condition.
Defendant moved for change of venue, sequestration of
prospective jurors during voir dire examination and during
trial, and individual voir dire examination of prospective

jurors. Individual voir dire was granted. On August 24,

1979, following a series of psychiatric and medical examina-
tions of defendant to determine his fitness to proceed, the
District Court held an - camera hearing to determine defen-
in

dant's fitness to proceed to trial, his ability to assist
and communicate with his counsel, and the extent to which
the State's evidence could be reconstructed.
On October 2, 1979, the District Court found the defen-
dant capable of proceeding to trial and set a trial date of
November 20, 1979. Because of defendant's condition, trial
was to be held for no more than four hours per day.
On November 1, 1979, defendant's motion to close pre-
trial proceedings was granted. Individual voir dire
examination of prospective jurors began on December 3, 1979,
closed to the press and public. During voir dire, the
~istrictCourt granted a motion by the defense that defendant

serve as co-counsel. On December 14, 1979, the Great Falls

Tribune obtained a writ of supervisory control in this
Court, regarding the exclusion of press and public. This
Court stayed proceedings until January 18, 1980, when, after
oral argument was heard, we vacated the District Court's

order excluding press and public from voir dire proceedings.

See Great Falls Tribune v. District Court (1980), Mont .
, 608 P.2d 116, 37 St.Rep. 502.
Jury selection resumed on January 24, 1980, and the
evidentiary stage of the trial began on February 19, 1980.

The jury returned a verdict of guilty on all counts, March
6, 1980, and on May 2, 1980, the District Court sentenced

defendant to a total of life plus 120 years. Defendant
appeals.
I.
Defendant argues that the trial court should have found
him unfit to stand trial because his amnesia rendered him

incapable of assisting in his own defense. He claims he

could not reconstruct events which occurred the night of the
crime, could not develop a defense of alibi or proof of
another person's guilt, and could not testify effectively in

his own behalf. Finally, he argues that the trial court
erred in not meeting the standards established in Wilson v.
United States (D.C.Cir. 1968), 391 F.2d 460. ~ccordingto
defendant, the least this Court can do is remand for a
Wilson-type post-trial hearing.
In Wilson, the Circuit Court of Appeals set out a
number of criteria to be applied before and after trial to
determine whether an amnesiac criminal defendant could and
did receive a fair trial. Wilson is not a Ninth Circuit

decision. Nor have those federal courts dealing with the
competence of amnesiac criminal defendants in the decade

after Wilson adopted the Wilson standard, relying instead
upon the less stringent test established in Dusky v. United
States (1960), 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824.

For those reasons, we decline to adopt the Wilson standard
in Montana, finding the Dusky standard to be sufficient.

In Dusky, the United States Supreme Court stated:
"[The] test must be whether [the defendant]
has sufficient present ability to consult
with his lawyer with a reasonable degree of
rational understanding -- and whether he has
a rational as well as factual understanding
of the proceedings against him." Dusky v.
United States, 362 U.S. at 402, 80 S.Ct. at
789, 4 L.Ed.2d at 825.

The Dusky standard has been applied in the majority of
federal cases in which a criminal defendant claimed amnesia

rendered him unfit to stand trial; none of the federal

courts, including the Wilson court, has held that amnesia
- - constitutes incompetency.
per se See United States v. Mota
(5th Cir. 1979), 598 F.2d 995, 998, cert. denied - -
sub. nom.
Flores v. United States (1980), 444 U.S. 1084, 100 S.Ct.
1042, 62 L.Ed.2d 770; United States v. Swanson (5th Cir.

1978), 572 F.2d 523, 525-526, cert. denied (1978) 439 U.S.
849, 99 S.Ct. 152, 58 L.Ed.2d 152; United States ex rel.
Parson v. Anderson (3d. Cir. 1973), 481 F.2d 94, 95, cert.
denied - - Parson v. Anderson (1973), 414 U.S. 1072,
sub. nom.
94 S.Ct. 586, 38 L.Ed.2d 479; United States v. Sullivan (2d
Cir. 1969), 406 F.2d 180.
 The record indicates that several physicians and

psychiatrists interviewed, tested, and studied the defendant
over a period of many months and testified at the fitness

hearing. They were in agreement that defendant's amnesia
was not feigned: he could not remember events which occurred
the day of the crime and could not testify about his mental
state at that time. But they were also in substantial

agreement that defendant was (1) capable of understanding

the facts of the case, the nature of the charges against
him, and the procedural and legal issues involved; (2)
capable of comprehending counsel and making rational and
informed decisions upon counsel's advice; (3) capable of
communicating rationally and coherently, despite a small

speech problem. The District Court judge noted that defen-
dant was alert, oriented, and fluent throughout the competency

hearing. Indeed, during voir dire, for a time, defendant
was named co-counsel. There is sufficient evidence of

competency here to support the District Court's discretionary
ruling that defendant was fit to proceed to trial.

In United States ex rel. Parson v. Anderson, 481 F.2d

at 96, the Third Circuit Court of Appeals noted:
"Had the proof of Parson's commission of the
crime been based on eyewitness testimony or
had the prosecution relied substantially on
statements attributed to Parson, his amnesia
might have significantly hindered the prepar-
ation and presentation of a rebuttal defense.
No such evidence was presented here. Rather,
the evidence was of a physical nature, Thus,
it would appear that the amnesia did not mean-
ingfully affect the availability of this type
of defense [insanity or rebuttal of state's
.
evidence] "
Here, also, the bulk of the evidence against defendant

is physical evidence, which would not be significantly
affected by defendant's amnesia: the victim's possessions
in defendant's car; tire tracks similar to those from his
car just outside the victim's home; particles of glass
similar to glass from victim's window imbedded in defendant's

vest; defendant's fingerprints on a lamp that was apparently
used to club the victim. Defendant's mental state and his
"alibi" would have little effect upon this evidence.
Furthermore, the defendant was given a good deal of
assistance by the court and by the prosecution. The State's
files were opened to him; experts were appointed by the
court; the State's experts were urged to cooperate with

defendant.
Finally, the circumstantial evidence against defendant
was very strong. In addition to the physical evidence

mentioned above, the jury considered defendant's having

helped move the victim two days before her murder; defen-

dant's offer to Clifford Elliott to pay him for helping rob
an old lady he'd moved earlier; defendant's uncharacteristic

wild and jubilant behavior in a bar at a time estimated to
be just after the murder; defendant's flight from the police
after a routine traffic stop.
A number of the above reasons were included in the

Wilson standard as supporting a determination by the trial
court that defendant would be unlikely to be prejudiced
by standing trial, despite his amnesia. The trial court
did not err in finding that, under the Dusky standard,
defendant was competent to stand trial.
Defendant also argues that, because he suffers from
cerebral palsy (apparently as a result of injuries sustained
in the accident), he is developmentally disabled under
section 53-20-102, MCA, and the trial court erred in not
finding him unfit to stand trial. Defendant relies upon

section 46-14-221(3), MCA, which states in relevant part:
 "If the court determines that the defendant
lacks fitness to proceed due to the fact that
the person is developmentally disabled, as
defined by 53-20-102, the proceeding against
him shall be suspended. . ."
We are aware that a physical condition may be determina-
tive of fitness to proceed. We do not question whether
defendant has cerebral palsy, or whether he is, by definition,
developmentally disabled. We do point out to defendant that
section 46-14-221(3), MCA, does not say that a developmental
disability automatically mandates a finding of lack of
fitness to proceed to trial. A developmental disability may
affect a defendant in such a way as to render him unfit to
proceed. That is for the trial court, in its discretion, to
determine. Here, the trial court has found defendant fit to
proceed despite his developmentally disabled condition, a
finding amply supported by medical evidence. The trial
court's decision was in no way inconsistent with the provisions
of section 46-14-221(3), MCA.
It is evident to this Court that the District Court did
not err in holding that defendant was competent and fit to
stand trial.

On January 22, 1980, the District Court judge granted
defendant's motion in limine to exclude photographs of the
victim finding them "neither necessary nor instructive with
regard to any material fact or condition of this case,"
besides being unduly prejudicial. The State filed a motion
to reconsider, and a hearing followed, in which the State
suggested the photographs could be made less inflammatory by
cropping. The court did not rule, and, when the State
presented the pictures, uncropped, at trial, the defendant
moved for mistrial. The court denied the motion and admitted
the photographs into evidence.

Defendant now argues that the use of the photographs

inflamed and prejudiced the jury and, by denying defendant a
fair trial deprived him of due process of law. He relies

upon a number of Montana cases which hold that allowing the
introduction of unnecessary, gruesome photographs for the
purpose of arousing prejudice against the defendant is
reversible error. See State v. Azure (1979), Mont.

, 591 P.2d 1125, 36 St.Rep. 514; State v. Pendergrass
(1978), 179 Mont. 106, 586 P.2d 691; State v. Bischert

(1957), 131 Mont. 152, 308 P.2d 969.
We do not find reversible error here. The hearing for
reconsideration of the court's exclusionary ruling should
have prepared defendant for the possibility that the pictures
would be admitted into evidence. We do not approve the
District Court's failure to rule, but neither do we find

that failure to have prejudiced defendant's right to a fair
trial. In State v. Mackie (1981), Mont. , 622 P. 2d
673, 674, 38 St.Rep. 86, 88, this Court stated:
"The longstanding rule in Montana is that
a photograph is admissible if it 'fairly
and accurately represents relevant evidence.'
State v. Jones (1914), 48 Mont. 505, 139
P. 441. It is within the discretion of
the trial court to allow into evidence
duly verified photographs to aid the jury
in its fact-finding process. Fulton v.
Chouteau County Farmers' Co. (1934), 98
Mont. 48, 37 P.2d 1025."
See also State v. Hoffman (1982), Mont. P.2d

There were two photographs admitted into evidence, one
of the entire body of the victim as she was found in her
home, one of the head and neck of the victim at the time of

autopsy. The first photo shows a broken lamp alongside the
victim's head. This was the lamp bearing the defendant's
fingerprints. Defendant argued that his fingerprints could
have been placed on the lamp when he helped move the victim
several days earlier. The State needed the photograph to
support its argument that the position of the print on the
lamp was more consistent with its use as a bludgeon than

with the defendant's having merely carried it from one place
to another. The position of the lamp, the way the lamp was
broken and dented, and the location and nature of the bruises
on the victim's head, all supported the State's argument.
The first photograph also showed a singular lack of blood on
the victim's body and on the bedclothes. Defendant had

contended that if he had committed the murder, he would have
had blood on his clothing. The State needed the photograph
to disprove defendant's contention. We fail to see how the
photograph could have been effectively cropped and yet have

been useful for that part of the State's argument. The
second photograph shows the location of wounds on the
victim's head and neck after the blood had been washed away
and the victim's head partially shaved. The State used that
photograph to show, again, how the lamp must have been held

to strike the victim, and to show that the wounds on the

victim's neck could have been inflicted by the knife with
which she was ultimately killed.
We are aware that these photographs indicate the brutality
and viciousness of the crime, and could result in some
prejudice to the defendant. We are not willing, however, to
accept defendant's argument that testimony and a plastic
mannikin with red lines drawn on it to indicate wounds
sufficiently enlightened the jury that the photographs were
unnecessary. We will not demand that a trial be sanitized
to the point that important, probative evidence must be
excluded. In State v. Fitzpatrick (1973), 163 Mont. 220,
229-230, 516 P.2d 605, 611, we stated:

"Once this relevance is established, the fact
that a photograph may be inflammatory should
not render it inadmissible any more than in-
flammatory word descriptions should render
testimony inadmissible, so long as the pur-
pose is probative and the true facts and con-
ditions are described. Jones on Evidence,
6th Ed., Vol. 3, Sec. 17:50 (1972)."
The trial judge, in his discretion, must determine whether
the probative value is outweighed by potential prejudice.
State v. Azure, supra. We find no abuse of discretion in

the trial court's admitting the two photographs into evidence.

On May 24, 1979, defendant requested a change of venue,
claiming that pretrial publicity had created such prejudice
that fair trial could not be had in Cascade County. The
trial court failed to rule on defendant's motion, although

defendant raised the matter several times before trial
began. Voir dire revealed that most, if not al1,of the
jurors actually chosen were familar with certain facts of
the case. Defendant argues that, despite the jurors'
assurances on voir dire that they would grant defendant the
presumption of innocence and consider only the evidence
presented at trial, the jurors were in fact, so prejudiced,

consciously or unconsciously, as to preclude a fair trial.
The State concedes that most prospective jurors had
some knowledge of the crime because of the publicity and a
good many of those excused for cause had already formed
opinions as to the guilt of the defendant. But the State
maintains that is not sufficient to establish the existence
of prejudice, or to require a trial court to grant a motion

for change of venue.
 Montana is no longer ruled by the old standard requiring
a showing that fair trial is impossible in the jurisdiction

due to publicity before a change of venue will be granted.
See State ex rel. Hanrahan v. District Court (1965), 145
Mont. 501, 508, 401 P.2d 770, 774. In State v. Link (1981),

Mont. - P. 2d ,
- 38 St.Rep. 982, 985,
this Court agreed that the old rule set an unworkably high

standard and adopted the "Illinois rule" articulated in
People v. Berry (1967), 37 I11.2d 329, 226 N.E.2d 591, 592-

593, which states:
"[Tlhe rule is that an accused is entitled
to a change of venue when it appears there
are reasonable grounds to believe that the
prejudice alleged actually exists and that
by reason of the prejudice there is a reason-
able apprehension that the accused cannot
receive a fair and impartial trial."

This Court in Link indicated that the effect of the adoption

of the Illinois rule was to allow a district judge to
"exercise his discretion in determining that the actual
prejudice is sufficiently pervasive to warrant a change of
venue." 38 St.Rep. at 985. Link also stated that "where

the evidence is inconclusive on the issue of prejudice, the
district judge's discretion should be relied on. His ruling

should not be disturbed unless an abuse of discretion is
shown." 38 St.Rep. at 984.
In Great Falls Tribune v. District Court (1980), 608

P.2d 116, 119-120, 37 St.Rep. 502, 506, referring to the
pretrial publicity in this case, this Court stated:
"We have examined the 92 exhibits of pretrial
media coverage. We note that the Tribune has
published and republished the background of
the case -- that defendant is charged with rap-
ing and murdering the 69 year old victim, cut-
ting her throat, sticking a knife in her chest
and subsequently being apprehended by police
after a high speed chase. Television and radio
 broadcasts are of the same tenor. In our view
these items are factual reporting without edi-
torializing - - -no more inflammatory than
and are -
background information on any other brutal
crime." (Emphasis supplied.)

"In the modern world it is impossible to
create an artificial, antiseptic environment
from which prospective jurors may be drawn
who have heard nothing of a serious crime
committed in their midst . . . It is only
where they form fixed opinions on the guilt
or innocence of the defendant which they
would not be able to lay aside and render a
verdict based solely on the evidence present-
ed in court that they become disqualified as
jurors." (Citations omitted.)

Here, there was extensive voir dire, which amounted to
2,000 pages of transcript and which was designed to ferret
out any possible prejudice in prospective jurors. Those
jurors whose responses indicated a belief that defendant was

guilty, or betrayed prejudice against defendant for any
reason, were promptly excused by the court. Those jurors

who were accepted had all been passed by the defense and had
all testified that they were without any opinion as to

defendant's guilt and could base their verdict solely upon
the evidence presented at trial. In light of the latitude

granted the defense in voir dire, and after consideration of

the pretrial publicity and this Court's determination that
it was not prejudicial, we find that the District Court did

not abuse its discretion in holding trial in Cascade County.
We will address the court's failure to rule elsewhere in
this opinion.

IV.

The defendant's fourth allegation of error is that the
trial court gave the prosecution an undue advantage in jury
selection by ruling inconsistently on challenges for cause.
 During voir dire, the trial judge excused a biased
county employee challenged for cause by the defendant, and
excused a State employee challenged for cause by the prosecu-
tion, because of their employment. Subsequently, two
challenges for cause by the defendant were denied, although
one prospective juror worked for Cascade County and another
was a recently retired State employee. The first two challenges
were granted because of the court's mistaken belief that
section 46-16-304(2) ( b ) , MCA, applied to government employees.
The defendant's challenge to the former State employee was
summarily denied because he was retired. The defendant's
challenge to the Cascade County employee, who had previously
been passed, was denied because the trial court, after
consideration of the statute and relevant cases, concluded
that section 46-16-304 (2) (b) referred only to relationships
between the defendant, the victim, and the complainant. The
early challenges were incorrectly granted on the basis of
government employment. The first prospective juror listed
above was excused because of her bias, as well as her employment,
and was properly excused. The defendant now argues that
because the prosecution was allowed an improper challenge
for cause, it did not need to use a peremptory challenge to
excuse that prospective juror, and effectively enjoyed an
advantage over the defendant when it came to the exercise of
peremptory challenges.
Defendant has not attempted to prove that prejudice
resulted from the trial court's error. He argues instead
that the failure of the trial court either to call back the
prospective juror erroneously excused, or to allow the
defendant to excuse a prospective juror for the same defective
reason, gave the prosecution an undue advantage in its

exercise of challenges.

We agree with the defendant that the trial court improperly
excused the State employee, and that the State was given a
slight advantage in the exercise of its challenges by reason
of the trial court's recognizing its error in time to deny

the defendant's challenge for cause of the Cascade County
employee. But defendant has failed to show this Court how
the error prejudiced him.
In State v. Bashor (1980), Mont. , 614 P. 2d
470, 477, 37 St.Rep. 1098, 1104 (challenge to entire jury
panel) , we stated:

"The pertinent inquiry is, however, whether
the jury as empaneled were able to render an
impartial judgment based solely upon the evi-
dence presented at trial."
Here, as noted above, the prospective jurors were
extensively examined to determine whether they were prejudiced

against the defendant. Those persons exhibiting bias were
promptly excused for cause. The cooperation of the trial
court and the prosecution in this process is evident in the

transcript. Those jurors who were empaneled had given
assurances of impartiality, and defendant has presented no

evidence that they were partial.

Section 46-20-702, MCA, provides:
"Any error, defect, or irregularity, or
variance which does not affect substantial
rights shall be disregarded. Defects a£-
fecting jurisdictional or constitutional
rights may be noticed although they were
not brought to the attention of the trial
court. "
Before the adoption of the present Criminal Procedure
Code, Title 46, MCA, this Court had relied upon section 94-

8207, R.C.M., 1947, for its well-established rule that
"prejudice in a criminal case will not be presumed, but

rather must appear from the denial or invasion of a substan-
tial right from which the law presumes prejudice ... It is

up to this court to decide whether an error affects the
substantial rights of the defendant and the defendant must
demonstrate prejudice from the record." State v. Straight
(1959), 136 Mont. 255, 264-265, 347 P.2d 482, 488. Cf.

State v. Bubnash (1963), 142 Mont. 377, 382 P.2d 830. This

rule has been substantially adopted in such cases as State
v. LaMere (1980), Mont. , 621 P.2d 462, 465, 37
St.Rep. 1936, 1940, where we stated:

"This Court will not presume prejudice. If
it did exist, it is incumbent on defendant
to bring the evidence of prejudice before
us (citation omitted). We find no reversi-
ble error in the judge's limitation [of
voir dire questioning]."

Defendant's brief is silent as to prejudice resulting
from the trial court's correction of its technical error.
We see no prejudice. We find no reversible error in the

inconsistent rulings of the trial court on for cause challenges

to government employees.

The defendant took the stand on his own behalf, and during

cross-examination, the following dialogue took place:

"Q. Did you kill Mabel Wald?

"A. No.

"Q. Mr. Austad, you've already testified you
don't remember what happened in January,
February, March and April of 1978. You've
also testified that you did not kill Mabel
Wald. How do you know?

"A. I just know what I'm made of, and what
I think what I would do, and what I think --
Mrs. Wald was an elderly lady, and I wouldn't
even think of committing any kind of offense
toward an old lady or anyone."
An - camera hearing followed, in which the trial court
in
ruled that defendant had "opened the door" to character
evidence and evidence of a prior felony conviction for
burglary. Defendant's objections were noted, and cross-
examination continued. The following exchange took place:
"Q. Did you burglarize Mabel Wald's house?
"A. No.
"Q. How do you know?
"A. I don't -- because it is not part of me to
do that type of thing. I've been in trouble
with the law before,-but - never burglarized
- I've
any place.
"Q. Have you ever been convicted of a felony?
"A. Yes.

"Q. What was the conviction for?
"A. Burglary." (Emphasis added.)
The State brought in a rebuttal witness, Margaret Fasbender,
who was a high school English teacher in Fairfield, where
defendant was raised. Ms. Fasbender testified that defendant's
reputation for truth and honesty was "rather dubious;" he
was considered "untrustworthy." In response to a question
about defendant's reputation for peacefulness, Ms. Fasbender
replied, "He was felt to be rather volatile and temperamental."
Defendant now argues that the trial court erred by
permitting the State to introduce prejudicial evidence
concerning defendant's character and his previous felony
conviction. Defendant relies upon Rules 6 0 9 and 4 0 4 of the
Montana Rules of Evidence.
Rule 4 0 4 (a) states:
"Evidence of a person's character or a trait
of his character is not admissible for the
purpose of proving that he acted in conformity
therewith on a particular occasion, except:
 "(1) Character of accused. Evidence of a
pertinent trait of his character offered
by an accused, or by the prosecution to
rebut the same."
Defendant argues that, because the State asked the question
that elicited defendant's remarks about his character, those

remarks were technically not "offered by the accused" as
contemplated in Rule 404(a)(l), and cannot be used as a
basis for admitting other character evidence.

We are not persuaded. Defendant was not required to
answer as he did; his answer was an assessment of his own
character and a declaration that he could not "even think
of" doing such a thing to an old woman. His answer, despite
the fact that it was elicited by a question from the State,

was clearly an offer of a pertinent trait of his character.
As such, it comes within the exception of Rule 404(a) (I),

and opens the door for the State to present rebuttal evi-
dence of a pertinent trait of the character of the accused.

Defendant relies upon State v. Cor (1964), 144 Mont.
323, 396 P.2d 86, to support his argument that evidence of

his reputation for truth and veracity is irrelevant in a
homicide case. We remind defendant that this is also a

burglary case, a robbery case, and a rape case. The evidence
which was admitted concerning defendant's reputation for
truth and veracity and for peacefulness was relevant. We

find that the rebuttal character evidence was properly
admitted.
Defendant, on cross-examination, claimed to have never
burglarized any place, then, reluctantly admitted to a
burglary conviction. Because it is defendant's perjured

claim which determines the admissibility of the evidence of
his burglary conviction, we need not consider the propriety
of the trial court's earlier ruling that defendant's testimony
putting his character into issue also opened the door to
evidence of the burglary conviction.
Defendant argues that the evidence of his burglary
conviction was introduced to impeach his credibility and
convince the jury of his guilt, and as such should not have
been admissible. He relies primarily upon Rule 609 and
Rule 404(b), M.R.Ev., which state:
"For the purpose of attacking the credibility
of a witness, evidence that he has been convic-
ted of a crime is not admissible." Rule 609,
M.R.Ev.
"Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in con-
formity therewith. It may, however, be ad-
missible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity or absence of mis-
take or accident." Rule 404(b), M.R.Ev.
We remind defendant that the list of exceptions in
404(b) is not exclusive. The Commission Comment following
Rule 404(b) in the Montana Lawyer's Rule Book states:
". . . Montana law is consistent with the
concept that purposes other than those
listed in the rule may be found and used
to admit evidence of other crimes."
Here, the evidence of defendant's prior felony conviction
was admitted to prove not that defendant committed the
crimes of which he was charged, but that defendant had lied
under oath.
The Commission Comment following Rule 609 indicates
that the purpose of that rule is to prevent opponents from
discrediting all the testimony of a witness or party simply
by presenting evidence of other crimes. The Commission

states that the rule springs from a concern that witnesses
will be caused undue pain and embarrassment, even discouraged
from testifying, although the prior conviction may have no
relation to credibility.
The circumstances here are obviously not those contemplated
by ~ u l e609 or by the line of case law in Montana which
establishes certain standards which must be met before

and after admission of other crimes evidence, before such
evidence will be acceptable. See State v. Just (1979),
Mont. , 602 P.2d 957, 36 St.Rep. 1649; State v.
Lave (1977), 174 Mont. 401, 571 P.2d 97; State v. Heine (1975),
169 Mont. 25, 544 P.2d 1212; State v. Jensen (1969), 153
Mont. 233, 455 P.2d 631. Here, on cross-examination, defendant
answered a question with an unnecessary, self-serving statement
which he knew to be untrue, intended to place him in a
better light with the jury. The fact that the evidence of
his prior felony conviction was not elicited by defense
counsel and the fact that disclosure of his false testimony
and his conviction were somewhat prejudicial to the defen-
dant, are not controlling here. The Rules of Evidence were
not intended to muzzle the State against defendant's deliberate
attempts to mislead jury members by lying to them in answering
specific questions. The trial court did not err in admitting
Ms. Fasbender's rebuttal testimony and defendant's own
testimony that he had been convicted of burglary.
VI .
During defendant's trial and over defendant's objection,
a tan vest was admitted into evidence and expert testimony
by an F.B.I. agent established that glass particles found
imbedded in the vest shared certain physical properties with
glass taken from the broken window and the bedsheet in the
victim's house. The F.B.I. expert stated that there was "a
slim possibility" that the glass on the vest came from some
source other than the window of the victim's house.
Defendant now alleges that the court failed to rule on
his motion to suppress the vest and evidence about the vest

unless and until a proper chain of custody could be establish-

ed. The transcript reveals that the defendant believed the
court had denied the motion in limine. Defense counsel

stated to the court:

"It's been the defense's impression that you
have ruled against our motion in limine to
require the State to establish a chain of
evidence on the vest outside the presence
of the jury."
In his brief, defendant also admits that the court orally
denied defendant's motion to suppress the vest and other
evidence, just before opening statements of counsel, and

filed the denial as written order No. 213. Having acknowledged
and accepted the rulings, the defendant cannot now in good
faith claim to have been prejudiced by the court's "failure
to rule" in this matter.
Defendant's objections to the admission of the vest
and testimony regarding it arose from conflicting testimony

at the suppression hearing and inconsistent claims by certain
officers as to when, how, and by whom the vest was seized,

bagged and tagged as evidence. The defendant argues that

the State has failed to establish that (1) the vest was

connected with the crime, and (2) the vest was not contamina-
ted by glass after it was put with the other evidence in
this case.
Officer Meddock (and his partner Officer Sinnott) testi-
fied both at the suppression hearing and at trial that Meddock
had picked up the vest and other clothing along the chase
route on River Road minutes after they heard of the chase
on their police radio; that the items picked up were bagged
and tagged immediately upon the officers' return to the
police station and were left in the police lab. Meddock

testified that the clothing was dry although the night was
damp. There is some confusion in the officers' testimony as
to which of them bagged and tagged the vest, but both agreed
that it was placed in an evidence bag at police headquarters
very early on the morning of the accident. The tag on the
bag containing the vest is written and signed by Officer
Sayer, who was in charge of the police lab at the time.

Sayer was uncertain how the vest got into the police lab,
stating at different times that he thought the vest had been
handed to him at the scene of the crime and that the vest
was seized at the hospital. Evidence from other sources
strongly indicates that no vest was taken from the hospital
and this vest was the only one in evidence in the case.
Sayer admitted at the suppression hearing and trial,

that it was possible someone had brought the bag to the
police lab, bagged and tagged it, and that he had changed
the tag to meet F . B . I . acceptance standards, as he customarily
did. There is no evidence on the record to indicate Sayer
changed the bag as well as the tag; and F . B . I . agent McGinnis

testified that the evidence bag containing the vest was
"sealed" when he received it.
At trial, three witnesses identified the vest by recol-
lection. Officer Meddock identified the vest, apart from
tags and numbers, as the one he'd picked up with other
clothing from River Road. He recognized it because it was a

J.C. Penney snap-front vest with "a red substance on it
right across the front." He also testified that the clothing
was dry when he picked it up ("Hadn't been laying there very
long.") and the shirt, vest and shoe were within a few feet

of each other along a course strewn with boxes and papers
bearing the name Wald. Officer Sinnott stated, "This appears

to be the vest that . . . Officer Meddock had picked up. ..
[Alt the station I tagged this garment, and I remember
seeing what appeared to be like blood on the vest here, it

seems to -- the stain's still here." Finally, F.B.I. Agent
McGinnis testified that the vest was the same one that

"arrived sealed in a plastic bag." The testimony of these
men is sufficient to establish the identity of the vest and
its relation to the crime.
Thus, there is strong evidence from Officers Sinnott
and Meddock that the vest was picked up along the chase

route and was immediately bagged and placed in the police

lab well before Officer Sayer arrived there with the evidence

- had bagged and tagged at the victim's home, i.e., the
he
bedsheet, window glass and other items. Officer Sayer
testified that he mailed the bagged evidence to the F.B.I.
lab. Agent McGinnis testified that the vest was still

protectively bagged when it reached the F.B.I. lab. We are
not persuaded by defendant's speculation that the bagged
glass could somehow have contaminated the bagged vest. Our
skepticism is increased by the F.B.I. expert's testimony
that the material of the vest was so smooth and closely-
woven that glass particles would not easily have become
imbedded in it. Nor do we accept that the officers' failure
to remember who tagged the vest implies that someone altered

the sealed bag or tampered with the vest.

In State v. Close (1981), Mont . -, 623
P.2d 940, 947-948, 38 St.Rep. 177, 186, this Court stated:

"The general rule concerning chain of evidence
foundation is this:
"'The State must identify the particular exhibit
as relevant to the criminal charge and must show
prima facie that no alteration or tampering with
the exhibit has occurred . .
. Once that has been
done, the burden - proving alteration shifts to
of
appellant. .. ' State v. Burtchett (1974), 1 6 5
Mont. 280, 287, 530 P.2d 471, 475. (Emphasis
added. ) "
And in State v. Nelson (1978), 178 Mont. 280, 288, 583 P.2d
435, 439, we approved the State's argument:

"'It was not incumbent upon the state to prove
that it could not have been tampered with. It
was not necessary that all possibility of its
having been tampered with should be excluded
by affirmative testimony. [Citation omitted.]
It was only necessary to identify the pack-
age, and to make prima facie showing that there
has been no substantial change in it to warrant
its introduction into evidence.' State v. Wong
Fong (1925), 75 Mont. 81, 87, 241 P. 1072, 1074
Cf. State v. Rumley (1981), Mont. I

634 P.2d 446, 449, 38 St.Rep. 1351A, 1 3 m

We find that the State made a prima facie showing that
the vest was not substantially changed after it was seized,
and that defendant failed to subsequently meet his burden of
proving alteration.
Determining adequacy of foundation is within the trial

court's discretion. State v. Armstrong (1980), Mont.

find no abuse of discretion.
VII.

Defendant claims that the trial court's denial of his
repeated requests to depose the State's expert F.B.I. witnesses
in Washington, D.C., deprived him of his right to confront
witnesses and his right to adequate representation by counsel.
The trial court denied both defendant's request for in-

person deposition and his request for deposition by written
interrogatories under oath. The record indicates that

attempts by the defendant to question the F.B.I. witnesses
by telephone had been unsuccessful because of F.B.I. restric-
tions on the dissemination of information by telephone.
Sections 46-15-201 (1) and 202 (2), MCA, provide that the
trial court may order the deposition of a material witness

in person or by written interrogatories when the witness is
a non-resident who refuses to provide relevant information
and "it is necessary to take his deposition in order to
prevent a failure of justice." The statutes are obviously
discretionary. The Commission Comment to sections 46-15-201
and 202, MCA (Annotations), refers to "the limited use of
depositions in criminal cases," and states that "they are
only to be used when the state or defendant needs a deposition
to avoid the loss of a witness material to the case."
The F.B.I. witnesses were to testify at trial; they

would be subject to cross-examination by the defendant. The
trial court indicated that defendant could request a continu-
ance to allow him to meet the testimony of the F.B.I. experts;
defendant made no request for a continuance. The State had
allowed defendant access to its files, including the F.B.I.
reports, and had released certain evidence to the defendant,

e.g., the vest, the bedsheet, and glass particles from the
victim's window. The court had appointed a glass expert and
a crime scene expert, who could aid defendant in analyzing
the evidence.
Clearly, there was no danger that the F.B.I. witnesses
would be lost to the defendant. Furthermore, defendant had
access to physical evidence, information and expert help,

which would allow him to adequately cross-examine the F.B.I.

witnesses. Defendant chose not to ask for a continuance.
We find no abuse of discretion and no evidence of prejudice.
No error.

VIII.
Over defendant's objection, and after rejecting defendant's
more extensive instruction flight, the trial court gave
the following instruction:
"The flight of a person immediately after the
commission of a crime, or after he is accused
of crime, is not sufficient in itself to es-
tablish his guilt, but is a fact which, if
proved, may be considered by you in light of
all other proved facts in deciding the ques-
tion of his guilt or innocence. The weight
to which such circumstance is entitled is a
matter for the jury to determine."
Defendant now alleges that the words "immediately after the
commission of a crime" suggested to the jury that the high
speed chase began at the victim's home just after the homicide.
Defendant also argues that this instruction must be considered
together with the acknowlegement by the trial court in the
Great Falls Tribune case, supra, that the media covering
this crime "lead the public, and prospective jurors, to
the conclusion that the chase came about as a result of the
discovery of the slaying and attempt to escape from the
scene by the accused." According to the defendant, under
the circumstances, the instruction could have caused the
jury to ignore other explanations offered by the defendant
for his flight. We find no reversible error in the giving
of the instruction.
The transcript reveals that the evidence presented at
trial firmly established, not once, but many times, that the
chase began after a routine traffic stop approximately an
hour after the homicide and some distance from the victim's
residence. The State, in its closing argument, several
times drew the jury's attention to the "routine traffic
stop" on River Road, at a time when no one in Great Falls
knew that something had happened to Mabel Wald. In fact,
much of the State's emphasis on closing was that it was the
wild flight after an unimportant stop by police that gave
rise to the inference that defendant was guilty of more than

speeding or a faulty taillight. The State also argued in
closing that defendant returned to the Elbow Room Bar after

the homicide and before the chase. Finally, the defense

itself, in closing argument, several times emphasized the
circumstances of the chase. At one point, defense counsel
said to the jury:

"The State would have you believe the high-
speed chase started immediately after the
homicide of Mabel Wald. We know that's not
so. It didn't originate from the scene of
the homicide; it originated from River Road."
Technically, the instruction was incorrect; defendant
did not flee from the police immediately after the crime.
He did, however, flee so shortly after the time the crime

was committed that flight would have been a reasonable

response to the traffic stop if he had committed the crime.
The jury was instructed that they could consider flight
along with other circumstances in determining defendant's
guilt or innocence. Considering the many references to and

explanations of the time and place of the flight, we do not
think any reasonable juror would have been misled by the
instruction.

This Court has held that error in instructing the jury
constitutes harmless error when "the offensive instruction
could not reasonably have contributed to the jury verdict."
State v. Hamilton (1980), Mont. -1 ,
- 605 P. 2d
1121, 1132, 37 St.Rep. 70, 82-83, cert. denied (1980), 447
U.S. 924, 100 S.Ct. 3017, 65 L.Ed.2d 1117. This emphasis
upon the possible impact of an improper instruction upon a reasonable
jury is consistent with Harrington v. California (1969), 395
U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284. See also State v.
Sandstrom (1979), Mont. , 603 P.2d 244, 36 St.Rep.
2099 (constitutional error in instructions).
We need not find that the entire instruction had no
influence upon the jury; it is reasonable to assume that

they considered the implications of defendant's dramatic
flight. But we do find that the part of the instruction
which was technically incorrect could not reasonably have
contributed to the verdict. No error.

IX.

Defendant claims that he was denied due process, effective
assistance of counsel and a fair trial because the trial
court failed to properly rule on a number of defendant's
motions, before, during, and after trial. He alleges fifteen
instances of the court's failure to rule at all, or ruling
without stating grounds or without providing notice.
Many of the alleged instances of judicial error in
ruling have been discussed above, and we have held either

that the defendant was aware or should have been aware of
the trial court's position, or that the defendant has failed
to show prejudice, and the error, if any,was harmless. We
held that Wilson v. United States, supra, was not controlling
in this state, and the trial court's failure to grant defendant's
motion for a Wilson-type post-trial hearing was not error.
The remainder of defendant's charges of error are unsupported
by facts and law and are devoid of any showing of prejudice
to the defendant. We decline to consider such "bald assertions"

of error. McGuinn v. State (1978), 177 Mont. 215, 581 ~ . 2 d

417.
 We emphasize that we in no way approve of or countenance
the failure of a trial court to properly rule upon defendant's
motions. Were there an adequate argument presented by
defendant showing prejudice or constitutional error and

supported by authority, such a failure could well result in
reversal.

X.
Defendant raises a great many mini-issues, often stated
in one or two sentences, with little or no reference to
relevant facts and applicable law. Such a "shotgun" approach
serves no useful purpose and may tend to obfuscate legitimate
issues by peppering them with irrelevant asides. It is not
the function of this Court to research and argue issues for
counsel. Wherefore, when such issues are raised, we will
address them briefly, if they warrant consideration at all.
Defendant raises a one-sentence allegation that his
right to speedy trial was denied. We disagree. More than
nineteen months elapsed between the time the information was

filed and the time voir dire began, easily enough to raise
the type of inquiry mandated by Barker v. Wingo (1972), 407
U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, and its many progeny

in Montana. A review of the record, however, indicates that
most, if not all, of the delay in this case was attributable
to efforts by the parties and the District Court to ascertain

defendant's fitness to stand trial, or to consideration by
the court of defendant's barrage of pretrial motions. Both
the State and defendant pressed for speedy trial during the
lengthy pretrial proceedings. Ordinarily, prejudice will be
presumed in the event of unreasonable delay of trial by the
State. Here the State was not primarily responsible for the
delay, and if anything, the delay worked to the advantage of
defendant, whose physical and mental improvement for some

months after the accident is noted in the record. We find
no error here.

Defendant claims the trial court stated, on July 9,
1979, that he was unfit to proceed to trial, then, without
explanation, reversed that ruling in October and found him
fit to proceed; and such a reversal was one of many arbitrary

actions by the trial court which resulted in the denial of a

fair trial. Defendant's argument is disingenuous.
The trial court stated, in its July 9, 1979, order:
". . .[T]he accused lacks Fitness to Proceed
within the meaning of that term as used in
Sec. 46-14-221, et seq., M.C.A., and accord-
ingly, further proceedings in this case are
STAYED for the reasons, and upon the terms
and conditions hereinafter set forth."

Those "terms and conditions" included continuance of trial

date and a request by the court for further evaluations and
arguments as to the physical and psychological condition of
the defendant. The transcript of a separate hearing held on

July 16, 1979, contains arguments by counsel regarding the
meaning of the July 9, 1979, order, followed by this state-
ment from the court:
"I am not persuaded. . . that the court's
order was a declaration that Mr. Austad was
unfit to proceed. I think the requisite of
that order, and the proceedings which the
court has ordered, was to make some factual
determination of Mr. Austad's fitness to
proceed to trial. . .If I had made the
finding that he was unfit to proceed pur-
suant to statute, then as [the State] point-
ed out, the court would have had to make
some disposition of the defendant, pending
the overcoming of these disabilities.
"What we're engaged in now are those hear-
ings which will make finally a determination
of whether Mr. Austad is fit to proceed. . ."

Defendant cannot in good faith argue that he was unprepared

for the October ruling of the court that defendant was fit
to proceed to trial. There is no error here.
While defendant does not number among his issues a
challenge to the sufficiency of the evidence presented, he
devotes a number of pages to an argument that the case
against him was circumstantial and "left 15 reasonable
doubts," which he lists. We point out to defendant that the
correct test here is whether there is substantial evidence
supporting the conviction when that evidence is viewed in

the light most favorable to the State, substantial evidence
being such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. State v. Wilson

(1981) Mont. , 631 P.2d 1273, 1278-1279, 38 St.Rep.
1040, 1047. In Wilson, we found this standard did not fall

short of that articulated by the United States Supreme Court
in Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct.

".. . the relevant question is whether,
after viewing the evidence in the light
most favorable to the prosecution, -
any
rational trier of fact could have found
the essential elements of the crime beyond
a reasonable doubt."

The State is not required to prove to this Court that

all reasonable doubts were eliminated at trial, or that
defendant's guilt has been proven to a moral certainty.
Those determinations are for the jury. We must only consider
whether the record presents substantial evidence, as defined

above, to support the conviction. A review of the evidence
presented to the jury firmly establishes that the jury's
determination was supported by a sufficiency of the evidence.
Defendant claims that the District Court designated him
a dangerous offender and sentenced him.to life plus 120

years in Montana State Prison in violation of constitutional
provisions against cruel and unusual punishment. Defendant
maintains that the sentence was unfairly imposed upon "a
paralyzed amnesiac defendant who is virtually helpless," a
man who cannot possibly be a danger to society, who requires

physical therapy, special equipment and assistance in
dressing and in toilet endeavors.
Ordinarily a sentence is not cruel and unusual punish-
ment if it is within the maximum established by statute,

Matter of Jones (1978), 176 Mont. 412, 420, 578 P.2d 1150,

1154; and review properly lies with the Sentence Review
Division. State v. Metz (1979), Mont. , 604 P.2d
102, 104, 36 St.Rep. 2261, 2264.
The fact that defendant is partially disabled does not
automatically render him incapable of harming other persons
or society. He is in possession of his faculties and is

ambulatory, although confined to a wheelchair or walker. He

stands convicted of a brutal crime against a defenseless old
woman. This was not his first felony conviction; he was
convicted of burglary on May 10, 1974. These facts are
sufficient to justify the designation of dangerous offender

under section 46-18-404, MCA. The determination was well
within the discretion of the court. The judge stated reasons
for his decision. We find no reason to change defendant's
status as a dangerous offender.
Defendant also argues that he is incapable of meeting

all of his physical needs and fears that the prison will
fail to protect his safety and his health. The united

States Supreme Court, in Estelle v. Gamble (1976), 429 U.S.
97, 97 S.Ct. 285, 50 L.Ed.2d 251, held that a consideration
of contemporary standards of decency reveals that prisoners'
medical needs must be met. The Court stated:
 "We therefore conclude that deliberate in-
difference to serious medical needs of
prisoners constitutes the 'unnecessary and
wanton infliction of pain,' Gregg v. Georgia
[(1976), 428 U.S. 153, 96 S.Ct. 2909, 49
L.Ed.2d 8591, . . . proscribed by the Eighth
Amendment. This is true whether the indif-
ference is manifested by prison doctors in
their response to the prisoner's needs or
by prison guards in intentionally denying
or delaying access to medical care or inten-
tionally interfering with the treatment once
prescribed. Regardless of how evidenced,
deliberate indifference to a prisoner's
serious illness or injury states a cause of
action under [42 U.S.C.] S 1983." Estelle
v. Gamble, 429 U.S. at 104-105, 97 S.Ct. at
291, 50 L.Ed.2d at 260.
However, as the State points out, defendant's protest
is premature. The Montana State Prison is not without
medical facilities and medical personnel. We have no reason
to believe that defendant's serious medical needs will be
disregarded. Defendant has made no showing that the Department

of Institutions will confine him in the Montana State Prison;
nor has he shown that, should he be so confined, the prison
is incapable of meeting his medical needs. He has certainly
not shown that the State has inflicted or will unnecessarily
and wantonly inflict pain or deliberately disregard his
serious medical needs. That he will not receive the solicitous
care tendered him at home is unquestionably true; that his

disability renders him more vulnerable to other inmates
cannot be disputed. Nevertheless, these facts do not raise
defendant's sentence to the level of an Eighth Amendment
violation. We find no infliction of cruel and unusual
punishment in this sentence. Should defendant, during his

time in custody, feel that the State's care has become so
deficient as to amount to an Eighth Amendment violation, his
remedy is a S1983 action.

In summary, we note that, while there were a number of
errors committed by the District Court in the long and
complicated investigation and trial of this case, they were
not substantial enough, singly or as a whole, to jeopardize
defendant's right to a fair trial.
Af firmed.

We Concur:

R
Chief Justice
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