No. 91-314 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJOHN HEMBD, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert W. Holmstrom , Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John Hembd, Pro Se, Deer Lodge, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, George Schunk, 

Assistant Attorney General, Helena, Montana 

Dennis Paxinos, County Attorney, Dale Mrkich, 

Deputy County Attorney, Billings, Montana 

Filed: 

Submitted on Briefs: June 4, 1992 

Decided: September 1, 1992 

Clerk 
Justice Karla M. Gray delivered the Opinion of the Court. 

The defendant, John Hembd (Hembd), appeals his second 

conviction of robbery with a handgun following a jury trial in the 

Thirteenth Judicial District Court, Yellowstone County. We affirm. 

The issues on appeal are: 

1. Whether the District Court erred in allowing bank teller 

Linda Esman to identify the defendant? 

2. Whether the District Court properly instructed the jury? 

3. Whether Hembd's sentence was valid? 

4. Whether Hembdwas denied effective assistance of counsel? 

5. Whether the District Court erred in denying Hembd's 

motion to dismiss based on the lack of a speedy trial? 

6. Whether the District Court erred in denying Hembd's 

motion to disclose the informants1 identity? 

7. Whether there is sufficient evidence in the record to 

support the defendant's conviction? 

On December 28, 1988, Dianne Bexell-Paul, a teller at the 

Security Federal Savings Bank in Billings, was robbed at gun point 

while at her window in the bank. The robber escaped on foot with 

$4,390. Bexell-Paul and the teller next to her, Linda Esman, gave 

similar descriptions of the perpetrator to authorities. Informants 

later identified Hembd as the robber to the Federal Bureau of 

Investigation and the Billings Police Department. 

On January 11, 1989, Hembd was charged by information with 

felony robbery. A jury trial was held on March 20, 1989, and the 
jury returned a guilty verdict on March 22, 1989. Hembd was 

subsequently sentenced to twenty-five years in the Montana State 

Prison with an additional five years for use of a handgun in the 

commission of the offense. 

Hembd appealed that conviction on March 31, 1989. The State 

cross-appealed certain rulings made during the course of trial. 

Subsequently, the State moved the Montana Supreme Court to remand 

the case with instructions to vacate the judgment of conviction. 

On January 23, 1990, this Court reversed the defendant's conviction 

and remanded the case for a new trial. 

The second trial was held on April 29 and 30, 1991, and on 

April 30, 1991, Hembd was again found guilty by a jury. He was 

sentenced to twenty-five years in the Montana State Prison with an 

additional five years for the use of a weapon. On September 25, 

1991, counsel for Hembd filed an Anders brief with motion for leave 

to withdraw. Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 

1396, 18 L.Ed.2d 493. We provided Hembd with an opportunity to 

respond to his attorney's Anders brief and he responded via letter 

dated February 25, 1992. On March 24, 1992, this Court granted 

Hembd's counsel's motion to withdraw and directed the State of 

Montana to respond. Hembd filed supplemental arguments on June 17, 

1992. 

I. 

Whether the District Court erred in allowing bank teller Linda 

Esman to identify the defendant? 

Although Hembd objects to this testimony on appeal, it was not 

objected to by Hembdts counsel during the trial. The general rule 
is that failure to object to alleged error at trial results in 

waiver of the right to challenge such error on appeal. State v. 

Howie (l987), 228 Mont. 497, 744 P.2d 156. When substantial rights 

of a defendant are involved, lack of timely objection does not 

preclude us from exercising our jurisdiction to examine any error 

at the trial court level. State v. Sadowski (1991), 247 Mont. 63, 

805 P.2d 537. However, this plain error doctrine is invoked only 

in extraordinary circumstances when it is necessary to ensure a 

fair trial. State v. Voegele (1990), 243 Mont. 222, 793 P.2d 832. 

The record herein does not contain any extraordinary circumstances 

calling the plain error doctrine into play. Therefore, because 

counsel did not raise this objection at trial, we will not consider 

it on appeal. 

11. 

Whether the District Court properly instructed the jury? 

Hembd asserts that the District Court gave "bad instructions." 

At trial, Hembd's attorney objected only to the State's instruction 

#2 because it was duplicative of the court's instruction #3. The 

court ruled that it was not duplicative and gave the instruction. 

The instruction objected to was a "credibility and weight" 

instruction. The court's instruction directed the jury to decide 

the issues of fact and to perform this task without bias, passion, 

or prejudice. It provided the jury with guidelines regarding all 

evidence, including testimony as well as documents, exhibits, and 

stipulations. 

The District Court gave both instructions to the jury. It is 
within the prerogative of the trial court to determine which 

instructions are necessary. State v. Smith (1986), 220 Mont. 364, 

715 P.2d 1301. On review, we determine whether instructions, as a 

whole, fully and fairly present the applicable law of the case. 

State v. Goodwin (1991), 249 Mont. 1, 813 P.2d 953. 

We conclude that the District Court was correct that the two 

instructions were not duplicative. Having reviewed all the 

instructions, we conclude that, as a whole, they fully and fairly 

presented the case to the jury. 

111. 

Whether Hembd's sentence valid? 

Trial judges are granted broad discretion to determine the 

appropriate punishment. State v. Carson (1984), 208 Mont. 320, 677 

P.2d 587. On appeal we will not review a sentence for mere 

inequity or disparity. State v. Almanza (1987), 229 Mont. 383, 746 

P.2d 1089. The general rule regarding sentencing is that a 

sentence within the statutory guidelines does not violate the 

constitution. State v. Dahms (Mont. 1992), 825 P.2d 1214, 49 

St.Rep. 106. Hembd was sentenced to twenty-five years for robbery 

pursuant to g 45-5-401, MCA; the sentence was within the 40-year 

maximum statutory sentence for robbery. We hold that Hembd's 

sentence is not unconstitutional and did not constitute an abuse of 

discretion. 

IV. 

Whether Hembd was denied effective assistance of counsel? 

Hembd argues on appeal that because his counsel did not raise 
the issue of Linda Esman's identification at trial, he has been 

denied effective assistance of trial counsel. This Court has 

adopted a two part test in determining whether a party has been 

denied effective assistance of counsel. 

To demonstrate that counsel's performance was deficient, 

defendant must prove that counsel's performance fell 

below the range of competence reasonably demanded of 

attorneys in light of the Sixth Amendment. Second, the 

defendant must demonstrate that the counsel's deficiency 

was so prejudicial that the defendant was denied a fair 

trial. 

State v. Aills (1991), 250 Mont. 533, 535, 822 P.2d 87, 88; quoting 

Strickland v. Washington (1984), 466 U.S. 668, 687, 104 St.Ct. 

2052, 2064, 80 L.Ed.2d 674, 693. 

In the case at bar, the first prong of the test is not 

satisfied. Hembd's single allegation on appeal is that his 

attorney failed to object to Linda Esman's identification at the 

second trial; he does not assert any basis for a conclusion that 

Esman's testimony was inadmissible. "In any case presenting an 

ineffectiveness claim, the performance inquiry must be whether 

counsel's assistance was reasonable considering all the 

circumstances." Aills, 822 P. 2d at 89; citing Strickland, 466 U.S. 

at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. 

Linda Esman was standing at a teller window near that of 

Dianne Bexell-Paul when Bexell-Paul was robbed at gun point; both 

Esman and Bexell-Paul were eyewitnesses to the crime and gave 

similar descriptions of the robber to the police. Defense counsel 

chose to cross-examine Esman at some length regarding discrepancies 

in her initial description of Hembd and her identification at trial 
rather than objecting to her testimony. In judging counselqs 

representation of Hembd, we will not second-guess counsel's trial 

tactics. State v. LaValley (l983), 203 Mont. 393, 661 P.2d 869. 

We conclude that counsells representation was reasonable and within 

the range of competence required by the Sixth Amendment. The first 

prong of the Strickland test not being satisfied, we hold that 

Bernbd received effective assistance of counsel. 

v. 

Whether the District Court erred in denying Hembdls motion to 

dismiss based on the lack of a speedy trial? 

Hembd argues on appeal that he was denied a speedy trial. He 

contends that the delays in bringing his case to trial must be 

charged to the State. The State asserts, and the court agreed, 

that Hembd was responsible for much of the delay and that the 

remainder of the delays were caused by the court's congested 

calendar. Finding no prejudice to the defendant, the court denied 

Head's motion for dismissal based on the lack of a speedy trial. 

Defendants in criminal trials are guaranteed the right to a 

speedy trial by the Sixth Amendment to the United States 

Constitution and by Article 11, section 24, of the Montana 

Constitution. We analyze four factors in determining whether a 

defendant's right to a speedy trial has been violated: length of 

delay, reasons for delay, assertion of the right by the defendant, 

and prejudice to the defendant. State v. Heffernan (1991), 248 

Mont. 67, 70, 809 P.2d 566, 568. 

Lenqth of Delay 

If the delay is lengthy it is presumptively prejudicial and 

7 
further inquiry is warranted. Heffernan, 248 at 70, 809 P.2d at 

568. Here, 461 days elapsed between the reversal of Hembdts first 

conviction and his second. We have previously stated that a delay 

of 200 days will usually trigger the full speedy trial analysis. 

State v. Dahms (Mont. l992), 825 P.2d 1214, 49 St.Rep. 106. 

Therefore, we will analyze the remaining speedy trial factors. 

Reasons for Delay 

A careful review of the record reveals that Hernbdls successful 

motions to vacate trial dates delayed the trial by 240 days, 

leaving 241 days of unavoidable delay grounded in institutional 

considerations of the District Court. "Delay inherent in the 

system is chargeable to the State." State v. Harvey (1979), 184 

Mont. 423, 434, 603 P.2d 658, 667. However, institutional delay 

weighs less heavily against the State than purposeful delay. 

Heffernan, 248 Mont. at 73, 809 P. 2d at 570. Nothing in the record 

before us reflects any purposeful delay by the State. 

Assertion of the Risht 

Hembd satisfied the third element of the test by moving to 

dismiss the action on speedy trial grounds on June 15, 1990. 

Preiudice to Defendant 

This Court has identified three factors which indicate 

prejudice to a defendant: 1.) pretrial incarceration; 2.) anxiety 

and concern; and 3.) impairment of defense. Heffernan, 248 Mont. 

at 74, 809 P.2d at 570. Applying these factors to the case before 

us results in a conclusion that Hembd was not prejudiced by the 

delay. 
Hembd's incarceration on a separate charge negates any 

prejudice arising from being incarcerated awaiting trial. Further, 

he does not assert that the delay exacerbated his anxiety and 

concern. Finally, Hembd makes no showing that his defense was 

impaired by that delay. We hold that the District Court did not 

err in denying Hembd's motion to dismiss based on the lack of a 

speedy trial. 

VI . 

Whether the District Court erred in denying Hembd's motion to 

disclose the informants' identity? 

Hembd argues on appeal that he should have been permitted to 

see the informant; he does not specify which of the two informants 

he means. We note that Hembd moved for identification of the FBI 

informant prior to trial and that the motion was denied. No 

specific error in that ruling is raised and our review does not 

disclose error. 

With regard to Hembd's assertion regarding disclosure of the 

identity of the informants, he does not suggest how disclosure 

could have aided his alibi or mistaken identity defenses. He 

asserts only that if he could see the informant he could determine 

if the informant looked like him and could have actually committed 

the crime and subsequently blamed Hembd. Hembd's assertion that 

the informants may have provided information to throw law 

enforcement investigators off the track of the actual perpetrator 

constitutes mere speculation and conjecture. Conjecture is an 

insufficient cause to support disclosure of an informant's 

identity. State v. McLeod (1987), 227 Mont. 482, 740 P.2d 672. 

9 
VII . 

Whether there is sufficient evidence in the record to support the 

defendant's conviction? 

The standard of review for sufficiency of the evidence in 

criminal cases is whether "evidence, when viewed in a light most 

favorable to the prosecution, would allow a rational trier of fact 

to find essential elements of the crime beyond a reasonable doubt." 

State v. Beach (1991), 247 Mont. 147, 150, 805 P.2d 564, 566. 

Hembd was found guilty of robbery. Robbery is defined in 

pertinent part, as follows: 

(1) A person commits the offense of robbery if in the 

course of committing a theft he: 

(b) threatens to inflict bodily injury upon any person 

or purposely or knowingly puts any person in fear of 

immediate bodily injury. . . . 

Section 45-5-401, MCA. 

The evidence in this case was substantial as to each element. 

Two eyewitnesses testified that it was Hembd who robbed the bank, 

two informants notified authorities that it was Kembd who robbed 

the bank, and a video exists of the robbery. The robbery was 

committed at gunpoint and the robber escaped with over $4,000. 

Bexell-Paul and Esman testified that they were afraid that the 

robber would shoot them. A rational trier of fact could have found 

each element of the offense proved beyond a reasonable doubt. 

Therefore, we hold that there is sufficient evidence in the record 

to support defendant's conviction. 

Af f inned. 
we concur: 
September 1, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

John Hembd 

700 Conley Lake Rd. 

Deer Lodge, MT 59722 

HON. MARC RACICOT, Attorney General 

George Schunk, Assistant 

Justice Building 

Helena, MT 59620 

Dennis Paxinos, County Attorney 

Yellowstone County 

P.O. Box 35025 

Billings, MT 59107 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF, MONTANA