No. 12141 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

GILMAN RUSSELL FORSNESS, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable Robert J. Nelson, Judge presiding. 

Counsel of Record: 

For Appellant : 

Robert J, Campbell argued, Missoula, Montana, 

For Respondent: 

Hon. Robert Lo Woodahl, Attorney General, Helena, 

Montana. 

David Gliko, Assistant Attorney General, argued, 

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

Arthur Matteucci and James R, Walsh, Deputy County 

Attorneys, Great Falls, Montana. 

Submitted: March 15, 1972 

Decided: MR 2 9 19n 

Filed : IWMR 2 9 1972 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This appeal is by the defendant, Gilman Russell Forsness, 

who was tried and convicted for selling dangerous drugs in the 

eighth judicial district, county of Cascade. He appeals from 

the judgment. 

This appeal is taken by a volunteer counsel who did not 

take part in the trial. The issues on appeal are narrowly 

directed to the activities of trial counsel. However, in order 

to put the case in perspective, that is, to gauge the sincerity 

of rather strange and strained charges on appeal we feel it necessary to set forth the background appearing in the record. 

Defendant was convicted of selling dangerous drugs, 

LSD, marihuana , and an acid called "window panetP to his sixteen 

year old son Kim Forsness, who in turn peddled it to other young 

people in Great Falls, 

At the time of his arrest defendant was 42 years of age 

and had been married several times, His first marriage was to 

~im's mother and of this marriage there were three children, 

Kim 17, Nancy 15 and Suzanne 13. From the time of the divorce 

from ~im's mother, defendant contributed little to the support 

of his family and Mrs. Delores Forsness had to work to support 

her children. Defendant had at least one more marriage, one more 

child, and one more divorce at the time of his arrest. 

The record reveals defendant had retired from the United 

States Air Force after ten years of service; that he had worked 

for the Federal Aviation Agency; and that he had no previous 

arrest record. Testimony indicates that sometime during the 

late 1960's defendant became involved in the "hippie movement" 
and moved to San Francisco, California, where he lived in the 

Haight-Ashbury area. The record also indicates that the son 

Kim lived with his father for a period of time in San Francisco, 

where his father introduced him to the drug culture. Further, 

when Kim returned to Montana in the fall of 1970, he commenced 

to sell drugs to young people in that area. 

At about the time Kim began selling various drugs, his 

mother contacted the Great Falls police informing them that she 

was worried about a letter Kim had received from his father 

concerning the drug trade. She gave the letter to the city 

police who at the time were investigating both her son and her 

ex-husband, who had appeared in Great Falls a few days previous. 

The next day, December 15, 1970, she gave the city police permission to search her son's room where they found marihuana , 

called Panama Red, and correspondence between the defendant and 

Kim, further involving them in the sale of drugs. 

On January 4, 1971, Kim Forsness was arrested at his home. 

At the home several IGA money orders were found which were made 

out to one Bob White of San Francisco, a man defendant had 

directed Kim to contact to purchase drugs. After being given the 

Miranda warning, Kim gave a written statement to the police which 

involved the defendant, in that he gave and helped his son to 

obtain drugs to sell. 

Defendant was arrested on January 8, 1971 and appeared 

on January 11, 1971, before Judge Nelson. At that time defendant 

informed Judge Nelson that he would procure private counsel, 

but Judge Nelson appointed Robert A. Tucker, Esq. to be his 

counsel until defendant procured his own attorney. On January 

13, 1971, defendant appeared with Mr. Tucker before Judge Bradford 

and upon a motion made by Mr. Tucker defendant was sent to the 
state hospital at Warm Springs, Montana, for psychiatric evaluation. In mid-February 1971, he was returned to Cascade County, 

along with an evaluation report which indicated he could stand 

trial. 

Due to defendants allegations that he was not given competent counsel, we will detail his pretrial activities. On 

February 24, 1971, counsel filed a motion to dismiss with brief, 

which was denied; on March 2, 1971, defendant, with counsel, 

appeared before Judge Bradford and was granted a continuance on 

arraignment and on that same day Judge Bradford set trial for 

April 5, 1971; on March 5, 1971, defendant disqualified Judge 

Bradford and Judge Hatfield was called in and on that same day 

a motion to dismiss was filed before Judge Hatfield; on March 8, 

1971, counsel Tucker filed a motion to withdraw as counsel, 

which was granted. The court then appointed Gregory H. Warner, 

Esq. to represent defendant who approved both the withdrawal of 

Tucker and the appointment of Warner; on March 30, 1971, the 

trial date of April 5, 1971, was vacated and reset for May 4, 

1971; On April 16, 1971, because of a conflict in trial dates, 

Judge Hatfield was relieved of the case and Judge Nelson accepted 

jurisdiction; on April 23, 1971, defendant appeared with counsel 

Warner, who filed and argued a motion to dismiss and on that 

same date preliminary instructions were settled for the case; 

on April 26, 1971, defendant appeared before Judge Nelson, with 

counsel, and heard the judge deny a11 motions. Upon being requested 

to enter a plea, defendant declined and a plea of not guilty was 

entered by the court; on April 29, 1971, the court granted the 

state's motion to add certain witnesses; and on May 4, 1971, the 

case finally went to trial. 
On May 4, 1971, prior to the commencement of the trial, 

defendant's counsel, Warner, asked to withdraw and that a new 

counsel be obtained because defendant had reauested that he withdraw. The court denied the request and the case went to the 

jury, resulting in defendant's conviction. It should be noted 

here that in addition to counsel Gregory H. Warner, Esq, a young 

practioner, defendant had at the counsel table Donald L. Ostrem, 

Esq., who has practiced law a number of years in state and federal 

trial courts. 

Two issues are presented by defendant for review: 

1. Did the trial court err in refusing to accept the 

withdrawal of counsel after discharge by the defendant? 

2. Did the district court violate the due process clause 

of the Fourteenth Amendment to the United States Constitution 

by forcing the defendant to trial with a court appointed counsel, 

which counsel defendant had discharged and who did not have the 

confidence of the accused? 

We find/%%rit to defendant's first issue. Here the 

defendant, who in early January 1971, said he would obtain his 

own counsel but did not do so, has had four lawyers represent 

him up to and including this appeal. Mr. Tucker lasted the first 

two months ; Mr. Warner entered the case in mid-March and went 

through the trial; Mr. Ostrem participated in the trial assisting 

Mr. .Warner; and Mr. Campbell who appears as a volunteer on appeal. 

Procedurally, Mr. Warner and Mr. Tucker delayed arraignment from 

January until April 26, knowing from Late March that trial was 

set for May 4. Discharge of his counsel on May 3, the day before 

trial, for the following reasons was not sufficient to delay the 

trial. Defendant stated: 
'"or the record, I would like it to show that I 

refuse counsel because the efforts he has made 

have not been in my best interest. Furthermore 

I have been held incommunicado for four months. 

I have been disallowed to make four calls. I 

have not been allowed that opportunity, sir. 

"* * *Sir, may I state that you are denying me 

my right to call a lawyer of my choice." 

The trial judge refused to discharge counsel at this 

late date. 

The charges contained in defendant's statement dehors 

the record. As a matter of fact, the record reveals that the 

trial judge and various counsel gave the defendant every opportunity to present his case. ~efendant's only claim, really, 

is that he could not have counsel or his choice. 

The second issue for review is concerned with the alleged 

violation of the due process clause of the Fourteenth Amendment 

to the United States Constitution. Defendant argues that his 

right to counsel as an indigent necessarily incorporates his 

right to effective counsel. He alleges that when the appearance 

of counsel takes on the cloak of pro forma rather than that of 

zeal and action, he was denied his day in court. Wilson v. State, 

222 Ind. 63, 51 N.E.2d 848; Hawkins v. State, (Fla. 1966), 184 

So.2d 486; Smotherman v. Beto, 276 F.Supp. 579. 

Here, in effect, defendant in using the words "effective 

counsel" and one that he has "confidence in", is alleging that 

he had inadequate counsel. We find the record does not support 

this allegation. We have noted in detail the efforts of two defense counsel on his behalf. Claimed inadequacy of counsel must 

not be tested by a greater sophistication of appellate counsel, 
nor by that counselts unrivaled opportunity to study the record 

at leisure and cite different tactics of perhaps doubtful efficacy. 

Success is not the test of efficient counsel, frequently neither 

vigor, zeal, nor skill can overcome the truth. 

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. State v. Schenk, 151 

Mont. 493, 444 P.2d 861; Statev. Gray, 152 Mont. 310, 448 P.2d 

744; State v. Noller, 142 Mont. 35, 381 P.2d 293. However, we 

do not agree with defendant's contention that he can dismiss his 

counsel just before going to trial, after counsel had adequately 

represented him for several months, and then on appeal allege 

his basic constitutional rights have been violated. Severa 1 

recent federal cases have covered this argument fully. United 

States v. Davis, 365 F.2d 251; Davis v. Stevens, 326 F.Supp. 1182, 

1183. In the latter case, which cited United States v. Davis, 

the court said: 

'blonetheless , while this right to counsel 

includes the right of an indigent defendant 

to have counsel appointed for his benefit 

free of charge to him, Gideon v. Wainwright, 

supra 

right 

of an 

, it never has been held that this 

to counsel also comprehends a right 

indigent defendant to have counsel of 

his choice appointed for him. Rather, it is 

the duty'of the court to appoint counsel for 

the indigent defendant, and unless there is 

good cause shownhy the appointment of a 

particular attorney should not have been 

made, the defendant must accept the attorney 

selected by the court unless he waives the 

right to be represented by counsel. This 

proposition of law is supported by numerous 

cases. [citing cases]" 

The judgment of the district court is affirmed. 

n 
Mr. Justice Haswell specially concurring: 

I concur in the result but not all that is said 

in the foregoing opinion. 

.IA+. Wd&QQ 

Associate ustfce