No. 12141 INTHE 

### 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 LoWoodahl, Attorney General, Helena,

Montana. David Gliko, Assistant Attorney General, argued,

Helena, Montana

# . JoFred Bourdeau, County Attorney, Great Falls, Montana. Arthur Matteucci and James R, Walsh, Deputy County

Attorneys, Great Falls, Montana.

Submitted: March 15, 1972 Decided: 

### MR2

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## 19n Filed: 

### IWMR

### 29

### 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 eighthjudicial district, county of Cascade. He appeals from thejudgment. This appeal is taken by a volunteer counsel who did not take part in the trial. The issues on appeal arenarrowly directed tothe activities of trial counsel. However, in order toput the case in perspective, that is, to gauge the sincerity of rather strange and strained charges on appealwe feel it necessary to set forththe background appearing in the record. Defendant was convicted of selling dangerous drugs, LSD, marihuana

## , and an acid called "window panetPtohis sixteen year old son KimForsness, who in turn peddled it toother young people in Great Falls, Atthe time of his arrest defendant was 

### 42 years of age and had been married several times, 

### His firstmarriage was to ~im's mother and of this marriage therewere three children, Kim 17, Nancy 15 and Suzanne 13. From the time of the divorce from ~im's mother, defendant contributed littletothe support of his family and 

### Mrs. Delores Forsness had towork to support her children. Defendant had atleast one more marriage, one more child, and one more divorce atthe time of his arrest. The record reveals defendant had retired from the United States AirForce 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 toSan 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 tothe drug culture. Further, when Kimreturned toMontana inthe fall of 1970, he commenced to selldrugs toyoung people in that area. Atabout the time Kim began selling various drugs, his mother contacted the Great Falls police informing them that she

was worried about a letterKimhad received from his father concerning the drug trade. She gave the letter tothe city policewho atthe time were investigating both her son and her ex-husband, who had appeared inGreat Falls a few days previous. The next day, December 15, 1970, she gave the citypolice 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 saleof drugs. 

### On January 

### 4, 1971, Kim Forsness was arrested athishome. Atthe home several IGA money orders were found which were made out to one Bob White of San Francisco, a man defendant had directed Kim tocontact topurchase drugs. After being given the Miranda warning, Kimgave a written statement tothe policewhich involved the defendant, in that he gave and helped his son to obtain drugs to sell. Defendant was arrested on January 

### 8, 1971and appeared

on January 11, 1971, before Judge Nelson. Atthat time defendant informed Judge Nelson thathewould procure private counsel, but Judge Nelson appointed Robert A. Tucker, Esq. tobe 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 tothestatehospital atWarm Springs, Montana, for psychiatric evaluation. In mid-February 1971, he was returned toCascade County, along with an evaluation report which indicated he could stand trial. Due todefendants allegations that he was not given competent counsel, we willdetailhis 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 inand on that same day

a motion todismiss was filed before Judge Hatfield; on March 

### 8, 1971, counsel Tucker filed a motion towithdraw as counsel, which was granted. The court then appointed Gregory H. Warner, Esq. torepresent defendant who approved both the withdrawal of Tucker and the appointment of Warner; on March 30, 1971, the trialdate of April 

### 5, 1971, was vacated and reset for May 4, 1971; On April 16, 1971, because of a conflict in trialdates, 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 todismiss 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 thejudge deny a11motions. Upon being requested to enter a plea,defendant declined and a plea of not guiltywas entered by the court; on April 

### 29, 1971, the court granted the state's motion toadd certainwitnesses; and on May 4, 1971, the

case finallywent totrial.On May 4, 1971, prior tothe commencement of the trial, defendant's counsel, Warner, asked towithdraw and that a new counsel be obtained because defendant had reauested that he withdraw. The court denied the request and the casewent tothe jury, resulting indefendant's conviction. It should be noted here that inaddition to counsel Gregory H. Warner, Esq, a young practioner, defendant had atthe counsel tableDonald 

### L. Ostrem, Esq., who has practiced law a number of years in stateand federal trial courts. Two issues arepresented by defendant for review: 1. Did the trialcourt err in refusing toaccept the withdrawal of counsel after discharge by the defendant? 2. Did the districtcourt violate the due process clause of the Fourteenth Amendment to the United States Constitution by forcing the defendant totrialwith a court appointed counsel, which counsel defendant had discharged and who did not have the confidence of the accused? We find/%%ritto 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 inmid-March and went through the trial; Mr. Ostrem participated in the trialassisting Mr. .Warner; and 

### Mr. Campbell who appears as a volunteer on appeal. Procedurally, Mr. Warner and Mr. Tucker delayed arraignment from January untilApril26, knowing from Late March that trialwas set for May 4. Discharge of his counsel on May 

### 3, the day before trial, for the following reasons was not sufficient todelay the trial. Defendant stated:'"or the record, I would like it toshow that I refuse counsel because the efforts he has made have not been inmy best interest. Furthermore I have been held incommunicado for four months. I have been disallowed tomake four calls. I have not been allowed that opportunity, sir. 

# "** *Sir, may I statethat you aredenying me my right tocalla lawyer of my choice." The trialjudge refused todischarge counsel atthis latedate. The charges contained indefendant's statement dehors the record. As a matter of fact, the record reveals that the trialjudge and various counsel gave the defendant every opportunity to present his case. ~efendant's only claim, really, 

### is that he could not have counsel orhis choice. The second issue for review isconcerned with the alleged violation of the due process clause of the FourteenthAmendment to theUnited States Constitution. Defendant argues that his right tocounsel 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, 51N.E.2d 848; Hawkins 

### v. State, (Fla.1966), 184 So.2d 486; Smotherman v. Beto, 276 F.Supp. 579. Here, in effect, defendant inusing 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 detailthe 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 counseltsunrivaled opportunity to study the record at leisureand cite different tactics of perhaps doubtful efficacy. Success is not the test of efficient counsel, frequently neither vigor, zeal,nor skillcan overcome the truth. We agreewith counsel fordefendant that the right to be represented by counsel ina criminal proceeding 

### is a fundamental right essential to criminaljustice. Statev. Schenk, 151 Mont. 493, 444 P.2d 861; Statev. Gray, 152 Mont. 310, 448 P.2d 744; Statev. Noller, 142 Mont. 35, 381 P.2d 293. However, we do not agree with defendant's contention that he can dismiss his counseljust before going totrial, after counsel had adequately represented him for several months, and then on appeal allege his basic constitutional rights have been violated. Severa1 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 thisright to counsel includes the right of an indigent defendant tohave counsel appointed for his benefit free of charge tohim, Gideon v. Wainwright, supra right of an

## , it never has been held that this to counsel alsocomprehends a right indigent defendant tohave counsel of his choice appointed for him. Rather, it 

### is the duty'of the court toappoint 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 selectedby the court unless he waives the right tobe represented by counsel. This proposition of law is supported by numerous cases. [citingcases]" The judgment of the district court is affirmed. 

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### Mr. Justice Haswell specially concurring: I concur in the result but not allthat is said in the foregoing opinion. 

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# Wd&QQ Associate ustfce