McGuinn v. Risley

IN THE SUPREME COURT OF THE STATE OF MONTANA
NO. 84-31

THOMAS P. McGUINN, SR.,
Petitioner,
v.
HENRY RISLEY, Wa-rden,
Respondent.

ORDER AND OPINION

PER CURIAM:
On January 16, 1.984, petitioner Thomas P. McGuinn, Sr.,
filed a pro se petition for a writ of habeas corpus alleging
his conviction and sentence for deliberate homicide in the
District Court of the Second Judicial District of the State
of Montana, in and for the County of Silver BOW, are illegal.
The grounds alleged are: (1) failure to report closing argu-
ments to the jury; (2) irrelevant and prejudicial closing
argument by the prosecuting attorney; and, (3) failure of
proof that the crime was committed in Silver Bow County,
Montana.
On February 10, 1984, we granted petitioner's motion to
enter certain affidavits from his relatives in evidence
without prejudice to later determination of their
materiality.
On May 1, 1984, the State fil-edits response and sup-
porting brief and memorandum of law setting forth that this
petition is really a petition for post-conviction relief, not
habeas corpus, and contending that there was a waiver of the
presence of the court reporter to report closing arguments, a
failure to raise this point until now despite lengthy attacks
on the judgment in various courts, failure to object to the
same at the trial court level, and no showing of prejudice.
The State further contends tha.t no improper remarks were made
by the prosecuting attorney during oral argument, that peti-
tioner failed to raise this point until now, and that peti-
tioner made no objection at the trial court level. The State
further contends that objections to venue were waived under
the Montana statute requiring such objections to be raised
prior to trial and that there is a presumption that the crime
of homicide occurs where the body is found.
The Court has examined and considered the entire Dis-
trict Court file and exhibits, the Supreme Court file, memo-
randa of law and cases cited by both petitioner and the
State.
IT IS NOW 0R.DERED:
1. This Court will. treat the petition for writ of
habeas corpus as a petition for post-conviction relief for
the reasons set forth in the State's brief. We hold that
this petition could be dismissed for failure to file the same
within five years of the date of conviction, but we will
reach and dispose of the contentions on the merits in the
exercise of our discretion.
2. We deny petitioner's claim of violation of due
process because the court reporter was not present recording
final argument on the grounds that counsel waived the same,
that no objection was raised. by petitioner at the trial court
level-, that the issue is now raised a.lmost seven yea-rs later
for the first time despite extensive appea.1~and habeas
corpus proceedings, and that no prejudice is shown.
 3. Petitioner's claim of improper closing argument by
the prosecuting attorney is denied on the ground there is
nothing to substantiate this contention except the form
affidavits signed by petitioner's relatives, that no objec-
tion of this matter was made on appeal or during extensive
collateral attacks on the iudgment, and that substantial
prejudice would result to the State from petitioner's delay
in advancing this ground.
4. Petitioner's claim of improper venue is denied on
the grounds that Montana statutes provide that venue is
expressly waived by failure to object prior to trial and that
there is a presumption that the crime of homicide occurred
where the body is found and extensive prejudice would result
to the State by petitioner's delay in a-sserting this ground.
5. The petition is denied and this proceeding
dismissed.
6. The Clerk is directed to mail a true copy of this
order to petitioner personally, to the Attorney General and
to the County Attorney of Silver Bow County, Montana.
DATED this /&a
&dy of May, 1984.

n 0 Chief Justice