IN THE SUPREME COURTOF THE STATE OF MONTANA No. 80-319

THE STATE OF MONTANA, Plaintiff and Respondent,

GENE ANDREW AUSTAD, Defendantand Appellant.

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PER CURIAM: The following paragraphs are deleted from this opinion atpage 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 itswell-established rule that "prejudicein a criminal case will not be presumed, but rathermust appear from the denial or invasion of a substantialright from which the lawpresumes prejudice

# . . . It is up to this court to decide whether an error affects the substantial rights of the defendant and the defendantmust demonstrate prejudice from the record." Statev, Straight

(1959), 136Mont. 255, 264-265, 347 P.2d 482, 488. Cf. Statev. Bubnash (1963), 142 Mont. 377, 382 P.2d 830. This rule has been substantially adopted in such cases as State 

### v. LaMere (1980), Mont. 

### , 621P.2d 462, 465, 37 St.Rep. 1936, 1940,where we stated: "'ThisCourtwill notpresume prejudice. If it did exist, it is incumbenton defendant to bring the evidence of prejudice before us (citationomitted). We find no reversible error in the judge's limitation [ofvoir dire questioning].

### ' "Defendant'sbrief is silent as to prejudice resulting from the trial court's correctionof 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 following paragraph is substituted for the aboveparagraphs: "Where, as here, the record shows that the trial court's error affected neither constitutional nor jurisdictional rights of the defendant, and defendant has failed to demonstrate prejudice to his substantial rights resulting from the error, this Court will not presume prejudice. See State

### v. LaMere (1980), Mont. 

## , 621P.2d 462, 465, 

### 37 St.Rep. 1936, 1940. We find no reversible error in the inconsistent rulingsby the trial court on for cause challenges to government employees.

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

### DATED this%%&day of March, 1982. 

# %*A Chief JusticeNo. 80-319 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

THE STATE OF MONTANA, Plaintiff and Respondent,

VS. GENE ANDREW AUSTAD, Defendant and Appellant.

Appeal from: DistrictCourt of the Eighth JudicialDistrict, In and for the County of Cascade Honorable H. WilliamCoder, Judge presiding Counsel of Record: For Appellant: Daniel Donovan argued, Public Defender, Great Falls,

Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Mary B. Troland argued, Assistant Attorney General,

Helena, Montana J. Fred Bourdeau, County Attorney, Great Falls, Montana

-- Submitted: November 30, 1981 Decided: 

### f~0 25

### \981 Filed:

## FEB2

## 5

## 198

ClerkMr. Justice Fred J. Weber delivered the Opinion of the Court

# . Defendant GeneAustad 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 defendantwas 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 courtprejudiced 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 exhibitNo. 

### 4 (thevest) 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 expertwitnesses 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 "flightof 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. onApril 22, 1978, two members of the Great Falls Police Department stopped a

car for speeding. The driver (defendant)and amale passenger

(Clifford Elliott) got out of the vehicle at the officers' request. On the pretext of getting his driver's license, defendant gotback in the car,and sped off. The officers immediately gave chase, leaving the passenger behind. Defendantwas 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 90M.P.H., ended when defendant lost control and crashed into several cars on the lotof a local car dealer. As a result of thewreck, defendant

was comatose for weeks and spent months in the hospital. After his accident, he had and continues to have amnesia,

someparalysis and muscle weakness, a speech impairmentand other physical disabilities. He canwalk with a walker but is usually confined to a bed or a wheelchair. His speech is coherent,but slowand 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 theWald 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 investigationrevealed 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 brokenoutwindow of thevictim's home, throughwhich the initial entry was apparentlymade. 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

wasmurdered. At the time of themove, 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 midnightwanting 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,defendantwas charged by information with deliberate homicide, aggravated robbery, sexual intercourse without consent,and aggravated burglary. Defendantwas not served with a copy of the information until September 18, 1978,because the State feared the injurieshe had sustained might interfere with defendant's ability to communicate and comprehend. Hewas arraigned on December 27, 1978, remaining silent,and a not guilty plea to all chargeswas entered in his behalf. In February of 1979,defendantwas 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 examinations of defendant to determine his fitness to proceed, the District Court held an - in camera hearing to determine defendant's fitness toproceed 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 defendant 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 closepretrial proceedings was granted. Individualvoir direexamination of prospective jurors began on December 3, 1979, closed to the press and public. During voir dire, the ~istrict Court 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 argumentwas heard,we vacated the District Court's order excluding press and public from voir dire proceedings. SeeGreat Falls Tribunev. DistrictCourt (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 lifeplus 120years. 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 reconstructevents 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 notmeeting the standards established inWilson v. United States (D.C.Cir. 1968), 391 F.2d 460. ~ccording to defendant, the least this Court can do is remand for a Wilson-type post-trial hearing. InWilson, the Circuit Court of Appeals set out anumber 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 afterWilson adopted theWilson standard,relying instead upon the less stringent test established in Dusky v. United States (1960), 362U.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 sufficientpresent ability to consult with his lawyerwith a reasonabledegree of rationalunderstanding 

### -- and whether he has a rational aswell as factualunderstanding of the proceedings against him." Dusky v. United States, 362U.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 inwhich a criminal defendant claimed amnesia rendered him unfit to stand trial; none of the federal courts, including the Wilson court,has held that amnesia per 

### -- se constitutes incompetency. See United States

### v. Mota (5thCir. 1979), 598 F.2d 995, 998,cert. denied 

### -- sub. nom. Flores v. United States (1980), 444 U.S. 1084, 100 S.Ct. 1042, 62L.Ed.2d 770; United States

### v. Swanson (5thCir. 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. Parsonv. Anderson (3d. Cir. 1973), 481F.2d 94, 95, cert. denied 

### -- sub. nom. Parsonv. Anderson (1973), 414 U.S. 1072, 94 S.Ct. 586, 38 L.Ed.2d 479;United Statesv. Sullivan (2d Cir. 1969), 406 F.2d 180.The record indicates that severalphysicians 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 eventswhich occurred the day of the crime and could not testify abouthis mental state at that time. But they were also in substantial agreement that defendantwas (1)capable of understanding the facts of the case, the nature of the charges against him, and theprocedural 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 speechproblem. The District Court judgenoted that defendantwas 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 DistrictCourt's discretionary ruling that defendantwas fit to proceed to trial. In United States ex rel. Parsonv. 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 statementsattributed to Parson,his amnesia might have significantly hindered the preparation and presentation of a rebuttal defense. No such evidencewas presented here. Rather, the evidence was of a physical nature, Thus, itwould appear that the amnesia did notmeaningfully affect the availability of this type of defense [insanityor 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 possessionsin defendant's car; tire tracks similar to those from his

car just outside the victim's home;particles of glass similar to glass fromvictim's window imbedded in defendant's vest; defendant's fingerprints on a lamp that was apparently used to club the victim. Defendant'smental 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 fileswere opened to him; expertswere appointed by the court; the State's expertswere urged to cooperatewith defendant. Finally, the circumstantial evidence against defendant

was very strong. In addition to the physical evidence mentioned above, the jury considered defendant'shaving helped move the victim two days before her murder; defendant'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 themurder; defendant's flight from the police after a routine traffic stop. A number of the above reasonswere included in the Wilson standard as supporting a determinationby the trial court that defendantwould 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 cerebralpalsy (apparentlyas 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 relevantpart:

### "If the courtdetermines 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 shallbe suspended. 

# .."

We are aware that 

### a physical conditionmay be determinative of fitness to proceed. We do not questionwhether defendanthas cerebral palsy, orwhether 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 developmentaldisability 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 courthas found defendant fit to proceed despite his developmentally disabled condition, a finding amply supported by medical evidence. The trial court'sdecisionwas in no way inconsistent with theprovisions 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 competentand fit to stand trial.

On January 22, 1980, the DistrictCourt judge granted defendant's motion in limine to excludephotographs of the victim finding them "neithernecessary nor instructivewith regard to any material factor conditionof this case," besides being unduly prejudicial. The State filed a motion to reconsider,and a hearing followed, inwhich the State suggested the photographs could be made less inflammatoryby cropping. The court did not rule, and,when the State presented 

### the pictures,uncropped, at trial, the defendant moved formistrial. The courtdenied themotion and admittedthe 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 caseswhich hold that allowing the introduction of unnecessary, gruesome photographs for the purpose of arousing prejudice against the defendant is reversible error. See Statev. Azure (1979), Mont.



### , 591 P.2d 1125, 36 St.Rep. 514; Statev. Pendergrass (1978), 179Mont. 106, 586 P.2d 691; Statev. Bischert (1957), 131Mont. 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 Statev. 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.' Statev. Jones (1914), 48Mont. 505, 139 P. 441. It iswithin the discretion of the trial court to allow into evidence duly verified photographs to aid the jury in its fact-finding process. Fultonv. Chouteau County Farmers' Co. (1934), 98 Mont. 48, 37 P.2d 1025." See also State

### v. Hoffman (1982), Mont. P.2d

Therewere two photographs admitted into evidence, one of the entirebody of the victim as shewas found in her home, one of the head and neck of the victim at the time of autopsy. The firstphoto shows a broken lamp alongside thevictim'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 Stateneeded the photograph to support its argument that the position of theprint 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 firstphotograph also showed a singular lack of blood on the victim's body and on the bedclothes. Defendant had contended that if he had committed themurder,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 thatpart 

### 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 lampmust have been held to strike the victim, and to show that the wounds on the victim's neck could have been inflicted by the knifewith which shewas ultimately killed. We are aware that thesephotographs indicate the brutality and viciousness of the crime,and could result in some prejudice to the defendant. We are notwilling, however, to accept defendant's argument that testimony and a plastic mannikin with red lines drawn on it to indicate wounds sufficientlyenlightened the jury that the photographswere unnecessary. We will not demand that a trialbe sanitizedto the point that important,probative evidencemust be excluded. In Statev. Fitzpatrick (1973),163Mont. 220, 229-230, 516 P.2d 605, 611, we stated: "Oncethis relevance is established, the fact that a photographmay be inflammatory should not render it inadmissible any more than inflammatoryword descriptions should render testimony inadmissible, so long as the purpose is probative and the true facts and conditions are described. Jones on Evidence, 6thEd., Vol. 3, Sec. 17:50 (1972)." The trial judge, in his discretion,must determine whether the probative value is outweighed by potential prejudice. Statev. 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 thatpretrial publicity had created such prejudice that fair trial could not be had in Cascade County. The trial court failed to rule on defendant'smotion, although defendant raised the matter several times before trial began. Voir dire revealed thatmost, if not al1,of the jurors actually chosenwere familarwith certain facts of the case. Defendant argues that, despite the jurors'

assurances onvoir dire that they would grant defendant the presumption of innocence and consider only the evidence presented at trial, the jurorswere in fact, so prejudiced, consciously or unconsciously,as to preclude a fair trial. The State concedes thatmost prospective jurors had some knowledgeof 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 Statev. 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 Peoplev. Berry (1967), 37 I11.2d 329, 226 N.E.2d 591, 592- 593,which states: "[Tlherule 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 reasonable 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 "exercisehis 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 inconclusiveon 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 GreatFalls 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: "Wehave 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 raping and murdering the 69year old victim, cutting her throat, sticking a knife in her chest and subsequently being apprehendedby police after a high speed chase. Television and radiobroadcasts are of the same tenor. In our view these items are factual reporting without editorializing and are no more inflammatory than 

### ---- background informationon

### any other brutal crime." (Emphasissupplied.)

"In the modern world it is impossible to create an artificial, antiseptic environment fromwhich prospective jurorsmay be drawn who have heard nothing of a serious crime committed in theirmidst 

# . . . 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 evidencepresented in court that they become disqualified as jurors." (Citationsomitted.) Here, therewas extensivevoir dire,which amounted to 2,000 pages of transcript and which was designed to ferret out any possible prejudice in prospective jurors. Those jurorswhose responses indicated a belief thatdefendant 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 evidencepresented 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 itwas 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 selectionby ruling inconsistently on challenges for cause.

### Duringvoir dire, the trial judge excused a biased county employee challenged for causeby the defendant,and excused a State employee challenged for cause by the prosecution,because of their employment. Subsequently, two challenges for cause by the defendantwere denied, although

oneprospective juror worked for Cascade County and another

was a recently retired State employee. The first two challenges

were granted because of the court'smistaken belief that section 46-16-304(2)(b),

### MCA, applied to government employees. The defendant's challenge to the former State employeewas summarilydenied 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 statuteand relevant cases, concluded that section 46-16-304 (2)(b)referred only to relationships between the defendant, the victim, and the complainant. The early challengeswere incorrectly granted on the basis of government employment. The firstprospective juror listed above was excused because of her bias, aswell as her employment, and was properly excused. The defendantnow argues that because the prosecutionwas allowed an improper challenge for cause, itdid not need to use a peremptory challenge to

excuse thatprospective juror,and effectively enjoyed an advantage over the defendantwhen it came to the exercise of peremptory challenges. Defendanthas not attempted to prove thatprejudice resulted from the trial court's error. He argues instead that the failureof 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 defectivereason,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 Statewas given a slightadvantage in the exercise of its challengesby 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 (challengeto entire jury panel)

### ,we stated: "Thepertinent inquiry is,however, whether the jury as empaneled were able to render an impartial judgmentbased solely upon the evidence presented at trial." Here, as noted above, the prospective jurors were extensively examined to determine whether they were prejudiced against the defendant. Thosepersons 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 rightsmay 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 casewill not be presumed, but rathermust appear from the denial or invasion of a substantial right fromwhich the law presumes prejudice

# . . . It is up to this court to decidewhether an error affects the substantial rights of the defendant and the defendantmust demonstrateprejudice from the record." Statev. Straight

(1959),136Mont. 255, 264-265, 347 P.2d 482, 488. Cf. Statev. Bubnash (1963),142Mont. 377, 382 P.2d 830. This rule has been substantially adopted in such cases as State

v. LaMere (1980), Mont. 

## , 621P.2d 462, 465, 37 St.Rep. 1936, 1940,where we stated: "This Courtwill notpresume prejudice. If itdid exist, it is incumbent on defendant to bring the evidence of prejudice before us (citationomitted). 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 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 killMabel Wald? 

### "A. No.

"Q. Mr. Austad, you've already testified you don'tremember what happened in January, February, March and April of 1978. You've also testified that you did not killMabel Wald. How do you know? "A. I just knowwhat I'm made of,and what 

### I think what 

### Iwould do, and what I think

# -- Mrs. Wald was an elderly lady, and Iwouldn't even think of committing any kind of offense toward an old lady or anyone."

### An in camerahearing followed, inwhich the trial court 

### - ruled that defendanthad "opened the door" to character evidence and evidence of a prior felony conviction for burglary. Defendant's objections were noted, and crossexamination continued. The following exchange took place: 

### "Q. Did you burglarizeMabel Wald's house? "A. No. "Q. 

### How do you know? "A. 

### Idon't 

### -- because it isnot part of me to do that type of thing. I'vebeen in trouble with the law before,-but -- 

### I've never burglarized 

### anyplace. "Q. 

### Have you ever been convicted of a felony? "A. Yes.

"Q. 

### What was the conviction for? "A. Burglary." (Emphasisadded.) The Statebrought in a rebuttalwitness,Margaret Fasbender, who was a high school English teacher in Fairfield, where defendantwas raised. Ms. Fasbender testified that defendant's reputation for truth and honesty was "ratherdubious;"he

was considered "untrustworthy." In response to a question about defendant's reputation for peacefulness,Ms. Fasbender replied, "Hewas felt to be rather volatile and temperamental." Defendantnow argues that the trial court erred by permitting the State to introduce prejudicial evidence concerning defendant's character and his previous felony conviction. Defendant reliesupon Rules 609 

### and 404 

### of the Montana Rules of Evidence. Rule 404

### (a) states: "Evidenceof a person's character or 

### a trait of his character is not admissible for the purpose of proving thathe 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 remarkswere technically not "offered by the accused" as contemplated in Rule 404(a)(l), and cannotbe used as a basis for admitting other character evidence. We are notpersuaded. Defendantwas 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 itwas 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 evidence of a pertinent trait of the character of the accused. Defendant relies upon State v. Cor (1964),144Mont. 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 peacefulnesswas relevant. We find that the rebuttal character evidencewas properly admitted. Defendant,on cross-examination, claimed to have never burglarized any place, then, reluctantly admitted to a burglary conviction. Because it 

### is defendant'sperjured 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 thatdefendant'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 convictionwas introduced to impeach his credibility and convince the jury of his guilt,and as such should not have been admissible. He reliesprimarily upon Rule 609 and Rule 404(b), M.R.Ev., which state: "For thepurpose of attacking the credibility of a witness, evidence thathe has been convicted of a crime isnot admissible." Rule 609, M.R.Ev. "Evidenceof other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however,be admissible for other purposes, such as proof ofmotive, opportunity, intent,preparation, plan, knowledge, identity or absence of mistake or accident." Rule 404(b), M.R.Ev. We remind defendant that the list of exceptions in 404(b) isnot exclusive. The Commission Comment following Rule 404(b) in the Montana Lawyer's Rule Book states: 

# ".

. . Montana law is consistent with the concept thatpurposes other than those listed in the rulemay 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 defendanthad 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 convictionmay have no relation to credibility. The circumstanceshere are obviously not those contemplated by ~ule 609 or by the line of case law in Montana which establishes certain standardswhich must be met before and after admission of other crimes evidence, before such evidence will be acceptable. See Statev. Just (1979), Mont. 

## , 602P.2d 957, 36 St.Rep. 1649;Statev. Lave (1977),174Mont. 401, 571 P.2d 97; Statev. Heine (1975), 169Mont. 25, 544 P.2d 1212;Statev. Jensen (1969),153 Mont. 233, 455 P.2d 631. Here,on cross-examination,defendant answered a questionwith an unnecessary, self-serving statement which he knew to be untrue, intended to place him in a better lightwith the jury. The fact that the evidence of his prior felony convictionwas not elicited by defense counsel and the fact that disclosureof his false testimony and his conviction were somewhat prejudicial to the defendant, are not controlling here. The Rules of Evidence were not intended to muzzle the State against defendant's deliberate attempts to mislead jurymembers by lying to them in answering specific questions. The trial courtdid 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 thevest 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 therewas "a 

### slimpossibility" that the glass on the vest came from somesource other than the window of the victim's house. Defendant now alleges that the court failed to rule on hismotion to suppress the vest and evidence about the vest unless and until a proper chain of custody could be established. The transcript reveals that the defendant believed the court had denied the motion in limine. Defense counsel stated to the court: "It'sbeen 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 cannotnow in good faith claim to have been prejudiced by the court's "failure to rule" in thismatter. Defendant's objections to the admission of the vest and testimony regarding it arose from conflicting testimony at the suppressionhearing 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 contaminated by glass after itwas put with the other evidence in this case. Officer Meddock (and his partner Officer Sinnott) testified both at the suppressionhearing 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 chaseon 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 nightwas damp. There is some confusion in the officers' testimony as to which of them bagged and tagged the vest, but both agreed that itwas placed in an evidence bag at police headquarters very early on the morning of the accident. The tag on the bag containing the vest iswritten 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 thathe 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 itwas possible someonehad 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. agentMcGinnis testified that the evidence bag containing the vest was "sealed" when he received it. At trial, three witnesses identified the vest by recollection. 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 itbecause itwas a J.C. Penney snap-frontvest with "ared substance on itright across the front." He also testified that the clothing

was dry when he picked itup ("Hadn'tbeen laying there very long.") and the shirt, vest and shoewere within a few feet of each other along a course strewn with boxes and papers bearing the nameWald. Officer Sinnott stated, "This appears to be the vest that

# . . . Officer Meddock had picked up. 

# . . [Altthe 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 labwell before Officer Sayer arrived there with the evidence he had bagged and tagged at the victim's home, i.e., the 

### - 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 closelywoven that glass particleswould not easily have become imbedded in it. Nor do we accept that the officers' failure to remember who tagged thevest implies that someone altered the sealed bag 

### or tampered with the vest. In Statev. Close (1981), Mont

# . - 

## , 623P.2d 940, 947-948, 38 St.Rep. 177, 186, this Court stated: "The general rule concerning chain of evidence foundation is this: "'TheState 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,

## theburden - of proving alteration shifts to appellant.

# . .' Statev. Burtchett (1974), 165 Mont. 280, 287, 530 P.2d 471, 475. (Emphasis added.)

### " And in Statev. Nelson (1978), 178Mont. 280, 288, 583 P.2d 435, 439, we approved the State's argument: "'Itwas 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. [Citationomitted.] Itwas only necessary to identify the package, and tomake prima facie showing that there has been no substantialchange in it to warrant its introduction into evidence.' Statev. Wong Fong (1925), 75Mont. 81, 87, 241 P. 1072, 1074 Cf. Statev. Rumley (1981), Mont

# . I 634P.2d 446, 449, 38 St.Rep. 1351A, 13m We find that the State made a prima facie showing that the vest was not substantially changed after itwas seized, and that defendant failed to subsequentlymeet his burden of proving alteration. Determining adequacy of foundation iswithin the trial court'sdiscretion. Statev. 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 expertF.B.I. witnesses in Washington, D.C., deprived him of his right to confront witnesses and his right to adequate representationby counsel. The trial courtdenied both defendant's request for inperson deposition and his request for deposition by writteninterrogatories 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. restrictions on the dissemination of informationby telephone. Sections 46-15-201(1)and 202(2)

## ,MCA, provide that the trial courtmay order the deposition of amaterial witness in person or by written interrogatorieswhen 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 "theyare only to be used when the state or defendantneeds 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-examinationby the defendant. The trial court indicated that defendant could request a continuance to allow him to meet the testimony of the F.B.I. experts; defendantmade no request for a continuance. The Statehad 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,therewas 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 flightof a person immediately after the commission of a crime, or after he is accused of crime, is not sufficient in itself to establish his guilt,but is a factwhich, if proved,may be consideredby you in light of all other proved facts in deciding the question 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 thewords "immediately after the commissionof 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 acknowlegementby 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 evidencepresented at trial firmly established, not once,but many times, that the chasebegan 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 "routinetrafficstop" on River Road, at a time when no one in Great Falls knew that somethinghad happened to Mabel Wald. In fact, much of the State's emphasis on closingwas that itwas the wild flight after an unimportant stop by police that gave rise to the inference that defendantwas 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 circumstancesof the chase. At onepoint, defense counsel said to the jury: "The Statewould have you believe the highspeed chase started immediately after the homicide of Mabel Wald. We know that's not so. Itdidn't originate from the scene of the homicide; it originated from River Road." Technically, the instructionwas incorrect; defendant did not flee from thepolice immediately after the crime. He did, however, flee so shortly after the time the crime

was committed that flightwould 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 themany 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 "theoffensive instruction could not reasonably have contributed to the jury verdict." Statev. 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, 65L.Ed.2d 1117. This emphasisupon the possible impact of an improper instruction upon a reasonable jury is consistentwith Harringtonv. California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284. See also Statev. Sandstrom (1979), Mont. 

## , 603 P.2d 244, 36 St.Rep. 2099 (constitutionalerror in instructions). We need not find that the entire instructionhad no influence upon the jury; it is reasonable to assume that they considered the implicationsof 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 instancesof judicial error in ruling have been discussed above, and we have held either that the defendantwas 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 thatWilson 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),177Mont. 215, 581 ~.2d 417.We emphasize thatwe 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 greatmany 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 themwith irrelevantasides. 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 informationwas filed and the timevoir dire began, easily enough to raise the type of inquirymandated 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'sbarrage of pretrial motions. Both the State and defendantpressed 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 ofdefendant, 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 reversalwas one of many arbitrary actions by the trial courtwhich 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 themeaning of that term as used in Sec. 46-14-221, et seq., M.C.A., and accordingly, furtherproceedings in this case are STAYED for the reasons,and upon the terms and conditions hereinafter set forth." Those "termsand 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 argumentsby counsel regarding the meaning of the July 9, 1979, order, followed by this statement from the court: "Iam notpersuaded. 

# . . 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 

### Ihad made the finding that he was unfit to proceed pursuant to statute, then as [theState] pointed out, the courtwould have had to make some disposition of the defendant,pending the overcoming of these disabilities. "Whatwe're engaged in now are those hearings which willmake 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 defendantwas fitto 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 circumstantialand "left15 reasonable doubts," which he lists. We point out to defendant that the correct test here iswhether there is substantial evidence supporting the conviction when that evidence is viewed in the lightmost favorable to the State, substantial evidence being such relevant evidence as a reasonablemind might accept as adequate to support a conclusion. State v. Wilson

(1981) Mont. 

### , 631 P.2d 1273, 1278-1279, 38 St.Rep. 1040, 1047. InWilson,we found this standarddid not fall short of that articulatedby the United States Supreme Court in Jacksonv. Virginia (1979),443 U.S. 307, 319, 99 S.Ct. 

# ".

. . the relevantquestion 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 reasonabledoubt." 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 supportedby a sufficiencyof the evidence. Defendant claims that the District Court designated him

a dangerous offender and sentenced him.tolifeplus 120 years in Montana State Prison in violation of constitutionalprovisions against cruel and unusual punishment. Defendant maintains that the sentence was unfairly imposed upon "a paralyzed amnesiac defendantwho is virtually helpless," a

man who cannotpossibly 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 punishment if it is within the maximum established by statute, Matter of Jones (1978),176Mont. 412, 420, 578 P.2d 1150, 1154;and reviewproperly lies with the Sentence Review Division. Statev. 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. Thiswas 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 determinationwas 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:"Wetherefore conclude that deliberate indifference to seriousmedical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain,' Gregg v. Georgia

[(1976), 428U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 8591,

# .

# . .proscribed by the Eighth Amendment. This is true whether the indifference ismanifested 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 intentionally interferingwith the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner's serious illness or injury states a cause of action under [42U.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 Statepoints out, defendant's protest ispremature. TheMontana State Prison is notwithout medical facilities and medical personnel. We have no reason to believe that defendant's seriousmedical needs will be disregarded. Defendanthas made no showing that the Department of Institutionswill confinehim in the Montana State Prison; nor has he shown that, should he be so confined, theprison is incapable of meeting hismedical needs. He has certainly not shown that the Statehas inflicted or will unnecessarily and wantonly inflictpain or deliberately disregard his serious medical needs. That he will not receive the solicitous

care tendered him athome is unquestionably true; that his disability renders himmore vulnerable to other inmates cannotbe 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 carehas 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 oferrors committed by the District Court in the long and complicated investigationand trial of this case, they were not substantial enough, singly or as a whole, to jeopardize defendant's right to a fair trial. Affirmed.

We Concur: 

# R -Q,,qvk.d 

# a Chief Justice