No. 14701 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

JAMES C. SPURLOCK, 

Petitioner, 

-vsROGER W. CRIST, Warden, 

Respondent. 

ORIGINAL PROCEEDING 

Counsel of Record : 

For Petitioner: 

Fred Van Valke~.kurg, Missoula, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert Deschamps, 111, County Attorney, Missoula, 

Montana 

Submitted: February 28, 1980 

Decided: J#L 

9 198D 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Petitioner filed a petition for writ of habeas corpus 

in this Court on February 14, 1979. This Court ordered the 

writ heard by the District Court of the Fourth Judicial 

District, County of Missoula, and the Honorable Robert M. 

Holter assumed jurisdiction for an evidentiary hearing. A 

hearing was held on June 6, 1979, and July 17, 1979. Findings of fact and conclusions of law denying the writ were 

filed October 30, 1979. These findings and conclusions have 

been appealed to this Court, and the matter has been accepted 

for decision on briefs. 

Petitioner and a companion, one Leonard Doney, were 

arrested on January 18, 1972, eight years ago, and charged 

with four counts of robbery, all of which were allegedly 

committed during the early morning hours of January 18, 

1972. After a high-speed chase, petitioner was arrested 

and, while in custody and sitting in the rear seat of a 

police car, was identified by one of the victims. 

After trial and conviction, the conviction was appealed 

to this Court and submitted November 30, 1972, after oral 

argument. On February 20, 1973, a unanimous Court affirmed 

the judgment and conviction. State v. Spurlock (1973), 161 

Mont. 388, 506 P.2d 842. Following are some excerpts of 

pretrial facts from the prior opinion of this Court: 

"The record indicates that on January 28, 1972, 

an Information 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., Missoula 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 of $15,000 (later reduced to $12,500) for defendant Spurlock and 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 Hon. 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 

I 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. Withdrawal 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. [Emphasis 

supplied.] 

"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 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." State v. Spurlock, supra, 161 Mont. 

at 389-391, 506 P.2d at 842-843. 

The following issues have been presented to this Court 

for review: 

1. Whether the requirement of joint representation of 

petitioner and a codefendant over timely objection necessitates a reversal of petitioner's conviction. 

2. Whether petitioner was denied effective assistance 

of counsel prior to trial and, if so, whether such denial 

affected petitioner's due process rights so as to necessitate 

a reversal of his conviction. 

3. Whether petitioner was subjected to an impermissible showup subsequent to his arrest. 

4. Whether petitioner was given inadequate notice of 

trial, was improperly required to go to trial jointly with 

his codefendant, and was improperly denied a continuance in 

his trial so as to necessitate a reversal of his conviction. 

5. Whether the failure to provide petitioner with a 
transcript of proceedings and failure of the court reporter 

to file his notes with the clerk of court violate petititioner's right to due process so as to necessitate a reversal 

of his conviction. 

6. Whether the failure to provide petitioner with an 

opportunity to examine the presentence report and crossexamine any witnesses with respect thereto necessitates the 

vacation of petitioner's sentence and removal for resentencing. 

Issues 1, 2 and 4 were previously litigated in this 

Court on the argued appeal, State v. Spurlock, supra, and 

will not be reviewed a second time on appeal. 

Issue 3 concerns the identification in the police 

vehicle on the night of the crime. Courts have universally 

held that a showup is not unlawfully suggestive where the 

confrontation was conducted shortly after the commission of 

the crime. In Stovall v. Denno (1967), 388 U.S. 293, 87 

S.Ct. 1967, 18 L.Ed.2d 1199, the United States Supreme Court 

approved an identification showup where the defendant was 

brought to the victim's hospital room shortly after the 

crime was committed. Similarly, where the defendant was 

immediately returned to the vicinity of the crime and placed 

in a patrol wagon and while he was inside the vehicle he was 

viewed by the complaining witnesses, one of whom specifically 

identified him as her attacker, the court held in Bates v. 

United States (1968), 132 App.D.C. 36, 405 F.2d 1104, that 

the defendant's identification, which was introduced at the 

trial, was not the result of an unnecessarily suggestive 

confrontation and did not, therefore, deny him due process. 

See also 39 A.L.R.3d 791. 

In regard to Issue 5, the matter of a free transcript, 

petitioner's argument on this point seems to be that he was 
denied a trial transcript and hence, due process, since the 

court reporter's notes were kept with the court reporter 

rather than the clerk of court. In fact, the reason he was 

denied a transcript is set out in the District Court's 

Finding of Fact No. I1 as follows: 

". . . Until the filing of this petition, the 

petitioner had acted in concert with his codefendant, Leonard E. Doney, in attempting to get 

a free transcript, but until the present petition, neither the petitioner nor Doney had alleged anything to warrant moving any court's 

discretion to order a free transcript prepared, 

as evidenced by an order of Judge Brownlee 

dated October 11, 1973, and filed in this 

cause and an order by Judge Russell Smith 

dated January 17, 1979, and entered in Federal 

District Court for the District of Montana, 

cause no. 2392." 

Whatever the legality or wisdom of court reporters 

keeping their notes, that practice did not deny petitioner a 

transcript, nor does the matter constitute any constitutional issue mandating any relief for petitioner. 

Issue 6 claims error due to irregularities with respect 

to petitioner's presentence report. Petitioner was convicted of four counts of robbery and was sentenced under the 

provisions of former section 95-1506, R.C.M. 1947, providing 

for increased punishment based on prior convictions. He 

received a sentence of fifty years in the Montana State 

Prison. Petitioner now states he was prejudiced because he 

claims he did not have an opportunity to examine the presentence report prior to sentencing nor to cross-examine 

witnesses with respect to the report. 

The principal point in connection with this issue is 

the fact that petitioner has not pointed to a single error 

or ambiguity in his presentence report. This Court has 

previously held that a convicted defendant has a due process 

guarantee against a sentence predicated on misinformation, 
but he cannot complain if the information in a presentence 

report is true. State v. Osborn (1976), 170 Mont. 480, 555 

P.2d 509. That is clearly the case here. Unless petitioner 

can show something erroneous in the presentence report, he 

will not be granted a resentencing. 

The findings of fact and conclusions of law of the 

District Court are affirmed and accepted; the writ of habeas 

corpus is dismissed. / 

& Justice x% 

We concur: 

Chief Justice \ 

Justices