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. 

.... 

ORDER 

CLER?( CF ~-;?~ZPZE cOURE 

$rA.B b.,- ,-. - &;Q:$$WNA /** 

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 challenges 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 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. , 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 employees. " 

As modified, the opinion stands; the petition for 

rehearing is denied. 

DATED this %%&day of March, 1982. 

%*A 

Chief Justice 
No. 80-319 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS. 

GENE ANDREW AUSTAD, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade 

Honorable H. William Coder, 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 2 5 \981 

Filed: FEB 2 5 198 

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 brokenout 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 intercourse 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 examinations of defendant to determine his fitness to proceed, the 

District Court held an - in camera hearing to determine defendant'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 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 close pretrial 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 

~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 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. ~ccording to 

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 

-- per se constitutes incompetency. 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 -- sub. nom. Parson v. Anderson (1973), 414 U.S. 1072, 

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 defendant 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 preparation 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 meaningfully 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; 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 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 determinative 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 inflammatory word descriptions should render 

testimony inadmissible, so long as the purpose is probative and the true facts and conditions 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 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 

"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 raping and murdering the 69 year old victim, cutting 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 editorializing and ---- are no more inflammatory than 

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 presented 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 prosecution, 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 evidence 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 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 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 - in camera hearing followed, in which the trial court 

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 crossexamination 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 -- I've never burglarized 

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 609 and 404 of the 

Montana Rules of Evidence. 

Rule 404 (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 evidence 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 convicted 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 conformity therewith. It may, however, be admissible for other purposes, such as proof 

of motive, 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) 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 ~ule 609 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 defendant, 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 established. 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 contaminated by glass after it was put with the other evidence in 

this case. 

Officer Meddock (and his partner Officer Sinnott) testified 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 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 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 

- 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 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 - of proving alteration shifts to 

appellant. . .' State v. Burtchett (1974), 165 

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 package, 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, 13m 

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 inperson 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. restrictions 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 continuance 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 establish his guilt, but is a fact which, if 

proved, may be considered by 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 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 highspeed 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 ~.2d 

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 accordingly, 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 statement 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 pursuant to statute, then as [the State] pointed 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 hearings 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 punishment 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 indifference 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 indifference 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 intentionally 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: 

Chief 

R 

Justice -Q,,qvk.d a