No. 12338 & 12339 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

JAMES CONLEY SPURLOCK, 

Defendant and Appellant, 

-vs - 

LEONARD DONEY , 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable E. Gardner Brownlee, Judge presiding. 

Counsel of Record: 

For Appellants : 

Robert J. Campbell argued, Missoula, Montana. 

For Respondent: 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana. 

Jonathan B . Smith, argued, Assistant Attornery General, 

Helena, Montana. 

R. D. Deschamps, 111, County Attorney, argued, Missoula, 

Montana. 

Submitted: November 30, 1972 

Decided: FEB 2 0 1973 
Xr. Justice Gene S, Daly delivered the Opinion of the Court. 

This appeal is taken from a judgment in the district 

court of Missoula County entered on a jury verdict convicting 

Jarnes Conley Spurlock of four counts of robbery and Leonard 

Edwin Doney of three counts of robbery. Spurlock was sentenced 

to fifty years and Doney to twenty-five years in the Montana 

state prison. The state employed the provisions of section 

95-1506, R.C.M, 1947, as to both defendants i.n seeking increased 

punishment based on prior convictions. 

The appeal was brought to this Court on a transcript of 

the proceedings taken prior to trial and no trial transcript 

was furnished. The sole issue raised is whether the denial of 

defendantsr pretrial motion for a continuance was an abuse of 

the trial court's discretion and a violation of the rights 

guaranteed to defendants under the United States Constitution 

and the Constitution of Montana. 

The record indicates that on January 28, 1972, an 

Tnformation was filed in the district court charging each defendant with four counts of robbery upon four Missoula filling 

stations committed on January 18, 1972. D. R. Matthews, Esq., 

!4issoula Public Defender, was appointed by the court as counsel 

and he represented both defendants in all stages of pretrial 

proceedings. Both defendants entered pleas of not guilty and 

trial was set for May 4, 1972. Bail was fixed in the amount 

LJ~ $15,000 (later reduced to $12,500) for defendant Spurlock 

dnd in the amount of $12,500 for defendant Doney. Neither defendant was able to post bail. 

Defendant Doney requested a psychiatric examination and 

was admitted to the state hospital at Warm Springs on February 

2, 1972, remaining there about thirty days. An examination was 

performed and a report submitted to the court. 
On March 13, 1972, defendant Spurlock filed an affidavit 

of disqualification of trial judge Hon. Emmet Glore, which was 

granted. The cause was transferred to the court of Eon. E. 

Gardner Brownlee. 

On April 5, 1972, defendant Spurlock submitted motions 

for a psychiatric examination by a local psychiatrist and for 

separate counsel, Both motions were denied. Subsequent testimony by Spurlock's wife indicated that he had been to Warm 

Springs for treatment and/or examination on some previous occasion 

and that he did not wish to return there, 

On April 6, 1972, defendant Doney petitioned the court 

pro se for a writ of habeas corpus based on violation of his 

rights at a preliminary examination for probable cause. Judge 

Jack L. Green, sitting for Judge E. Gardner Brownlee, heard the 

petition on April 6, 1972, with petitioner present in court and 

represented by public defender D,R. Matthews, his attorney, 

After argument the writ was denied. 

On May 3, 1972, one day preceding the trial date, the 

defendants through their appointed counsel, D. R. Matthews, 

entered four motions requesting: 

1. Withdraw1 of court appointed counsel. 

2. Separate trials, 

3, Separate counsel. 

4. A continuance. 

The requested continuance was for the claimed purpose of allowing 

their counsel time to prepare their defense, and to obtain a 

psychiatric evaluation for defendant Spurlock. 

The court denied all four motions. However, prior to 

trial on May 4, 1972, the motion for withdrawal of counsel was 

granted and Robert J, Campbell, Esq. was entered as counsel, In 

granting this motion, the court specifically questioned both 

defendants after making them aware that their other motions (including the motion for a continuance) would not be be granted, 

as to whether they would still prefer to have Robert J. Campbell 
substituted as counsel replacing D, R, Matthews. Both defendants 

stated they so preferred. The court then suggested that Matthews 

remain to participate in the defense and requested both defendants' 

permission before Mr. Matthews was permitted to leave. Both 

defendants gave that permission. 

At the time the court was considering the request for 

substitution of counsel, Mr. Matthews stated: "They have told me 

absolutely nothing. They will not confide in me, there has been 

no communication at all. " 

In their appeal brief, defendants stated "Prior to trial 

the Defendants remained in the Missoula County jail and sought 

private counsel as best they could." The record does not support 

this statement. It does not disclose that defendants or anyone 

acting in their behalf, contacted or were refused by any attorney 

prior to their contacting Mr. Campbell, who did take their case. 

It does not disclose that defendants were refused permission to 

contact any attorney while they were in jail, It does disclose 

that Mr, Campbell was contacted for the first time by Mrs. Spurlock at 4:15 p.m. on May 3, 1972, over three months after the 

arraignment of defendants and on the afternoon before the trial 

date. 

Section 95-1708, subsections (c) and (d), R.C.M. 1947, 

provide : 

"(c) All motions for a continuance are addressed 

to the discretj-on of the trial court and shall be 

considered in the light of the diligence shown on 

the part of the movant. 

"(d) This section shall be construed to the end 

that criminal cases are tried with due diligence 

consonant wit11 the rights of the defendant and 

the state to a speedy trial." (Emphasis supplied). 

~efendants' refusal to communicate with thelr appointed 

counsel and their eleventh hour dismissal of Mr. Matthews and 

hiring of Mr. Campbell after a three month period during which 

defendants were fully aware of the date set for tri.al, was not 

a,n exercise of due diligence. 
The instant case is readily distinguishable from State 

v. Blakeslee, 131 Mont, 47, 306 P.2d 1103, relied upon by defendants to support their Sixth Amendment (lack of right to 

counsel.) and Fourteenth Amendment (lack of due process) contentions. In Blakeslee, the court appointed counsel three days 

before the trial---but after Blakeslee's privately retained 

counsel withdrew. Here, defendants voluntarily dismissed appointed counsel and retained private counsel after being made 

fully aware that no continuance would be granted, In contrast 

to Blakeslee and other cases relied on in this appeal by defendants, this was a voluntary action directly in the control 

of the accused. 

The United States Constitution and the Montana Constitution establish certain rights, under law, for persons accused 

of a criminal offense. One of these is the right to effective 

representation by legal counsel, We find the district court 

accorded these defendants that right, The court appointed 

competent counsel to represent defendants and allowed them and 

their counsel three months to prepare their case, 

Numerous federal decisions hold with unanimity that: 

"Although the attorney-client relationship is 

ordinarily a private matter, a defendant does 

not have the unbridled rLght to discharge counsel 

on the eve of trial * fi *. 

"In order to work a delay by a last minute discharge of counsel there must exist exceptional 

circumstances." United States v. Grow, 394 F.2d 

182, 209, cert. den, 393 U,S, 840, 89 S.Ct. 118, 

21 L ed 2d Ill. 

See also: Kates v. Nelson, 435 F,2d 1085 (9th Cir, 1970) ; 

Harper v. United States, 143 F,2d 795 (8th Cir, 1944). For 

collateral text references see annotations following section 

95-1708, R,C.M. 1947; 66 ALR2d 298, 304, 54(a). 

In State v. Forsness, Mont . , 495 P,2d 176, 29 

St.Rep. 232, 236, a case analogous to the instant case on the 

issue of the constitutional right of an accused to counsel, this 

Court stated: 
"We agree with counsel for defendant that the 

right to be represented by counsel in a criminal 

proceeding is a fundamental right essential to 

criminal justice. [Citing cases] However, we do 

not agree with defendant s contention that he 

can dismiss his counsel just before going to trial, 

after counsel had adeauatelv re~resented him for 

several months, and tden ona app;?al allege his basic 

constitutional rights have been violated. Several 

recent federal cases have covered this argument 

fully. [Citing cases 1. " (Emphasis supplied) 

Where there is an alleged abuse of discretion by the trial 

court in denying a motion for a continuance, the burden of proof 

on appeal is upon the claimant to make a clear showing of such 

abuse, State v. Howard, 30 Mont. 518, 77 P. 50; State v. Collins, 

88 Mont, 514, 294 P. 957; State v. Olsen, 152 Mont. 1, 445 P,2d 

926. Here, defendants have not sustained that burden. 

// Chief Justice 

/' ~ssbciate Justices. I