No. 12338 & 12339 

### INTHE 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 JudicialDistrict, 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

### 01973Xr. 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. Spurlockwas sentenced to fifty years and Doney to twenty-five years in the Montana stateprison. The state employed the provisions of section 95-1506, R.C.M, 1947, as toboth 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 trialand no trial transcript

was furnished. The sole issue raised iswhether the denial of defendantsr pretrial motion for a continuancewas an abuse of the trialcourt's discretion and a violation of the rights guaranteed todefendants 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 representedboth defendants in allstages of pretrial proceedings. Both defendants entered pleas of not guilty and trialwas set forMay 

### 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 topost bail. Defendant Doney requested a psychiatric examination and

was admitted to the statehospital atWarm 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 filedan affidavit of disqualification of trialjudge 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 examinationby a local psychiatrist and for separate counsel, Both motions were denied. Subsequent testimony by Spurlock's wife indicated that he had been toWarm Springs for treatment and/or examination on some previous occasion and that he did not wish toreturn there, On April 

### 6, 1972, defendant Doney petitioned the court pro se for a 

### writof habeas corpus based on violation of his rights ata 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 incourt and represented by public defender D,R. Matthews, his attorney, After argument the

### writwas denied. On May 

### 3, 1972, one day preceding the trialdate, 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 continuancewas for the claimed purpose of allowing their counsel time toprepare their defense, and toobtain a psychiatric evaluation for defendant Spurlock. The court denied allfour motions. However, prior to trialon May 

### 4, 1972, the motion forwithdrawal of counsel was granted and Robert J, Campbell, Esq. was entered ascounsel, In granting this motion, the court specifically questioned both defendants aftermaking them aware that their other motions (including themotion for a continuance) would notbe be granted,

as towhether they would 

### stillprefer tohave Robert J. Campbellsubstituted ascounsel replacing D, R, Matthews. Both defendants stated they sopreferred. The court then suggested that Matthews remain toparticipate in the defense and requested both defendants' permission before Mr. Matthews was permitted toleave. Both defendants gave that permission. Atthe time the court was considering the request for substitution of counsel, Mr. Matthews stated: "They have told me absolutely nothing. They willnot confide inme, therehas been

no communication atall." In their appealbrief, defendants stated "Prior to trial theDefendants remained in theMissoula County jail and sought private counsel asbest they could." The record does not support this statement. It does not disclose that defendants or anyone acting in theirbehalf, contacted orwere refused by any attorney prior totheir contactingMr. Campbell, who did take their case. It does not disclose that defendants were refused permission to contact any attorneywhile theywere injail, It does disclose that Mr, Campbell was contacted for the firsttime by Mrs. Spurlock at4:15 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) Allmotions for a continuance are addressed to the discretj-onof the trialcourt and shallbe considered in the light of the diligence shown on the part of the movant. "(d) This section shallbe construed to the end that criminal cases are tried with due diligence consonant wit11 the rights of the defendant and the state toa speedy trial." (Emphasis supplied). ~efendants' refusal to communicate with thelr appointed counsel and their eleventhhour 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 isreadily distinguishable from State

v. Blakeslee, 131Mont, 

### 47, 306 P.2d 1103, relied upon by defendants to support their SixthAmendment (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 counselwithdrew. Here, defendants voluntarily dismissed appointed counsel and retained private counsel afterbeing made fullyaware that no continuancewould be granted, In contrast to Blakeslee and other cases relied on in this appeal by defendants, thiswas a voluntary action directly in the control of the accused. The United States Constitution and theMontana Constitution establish certain rights, under law, forpersons 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 toprepare 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 rLghttodischarge counsel on the eve of trial

# * fi

# *. "In order towork a delayby a last minute discharge of counsel there must exist exceptional circumstances." United Statesv. 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 Statev. 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 tocounsel, this Court stated:"We agreewith counsel for defendant that the right tobe represented by counsel ina criminal proceeding 

### isa fundamental right essential to criminal justice. [Citingcases] However, we do not agree with defendant s contention thathe can dismiss his counseljust before going to trial, after counsel had adeauatelv re~resented him for several months, and tden onaapp;?al allegehisbasic constitutional rights have been violated. Several recent federal caseshave 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, theburden of proof

on appeal 

### isupon the claimant tomake a clear showing of such abuse, Statev. Howard, 30 Mont. 518, 77 P. 50; Statev. Collins, 88 Mont, 514, 294 P. 957; Statev. Olsen, 152Mont. 1, 445 P,2d 926. Here, defendants have not sustained that burden.



# // Chief Justice



### /' ~ssbciate Justices.I