No. 14701 INTHE 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

# 198DMr. Justice Gene B. Daly delivered the Opinion of the Court. Petitioner filed 

### a petition for

### writof habeas corpus inthisCourt on February 

### 14, 1979. This Court ordered the 

### writheard by the DistrictCourt 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 factand conclusions of 

### lawdenying the

### writ

### were filedOctober 30, 1979. These findings and conclusions have been appealed to thisCourt, and the matter has been accepted fordecision 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, allof which 

### were allegedly committed during the earlymorning hours of January 18, 1972. After a high-speed chase, petitioner 

### was arrested and, while incustody and sitting inthe rear seatof a police car, was identified by one of the victims. After trial and conviction, the conviction 

### was appealed to thisCourt 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 thaton January 28, 1972, an Information 

### was filed in the district court charging each defendant with four counts of robbery upon fourMissoula 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 pretrialproceedings. Both defendants entered pleas of not guilty and trial was 

### set forMay 4, 1972. Bail was fixed inthe amount of $15,000 (later

### reduced to $12,500) fordefendant Spurlock and in the amount of $12,500 fordefendant Doney. Neither defendant

### was able topost bail."Defendant Doney requested 

### a psychiatric examination and 

### was admitted to the statehospital at 

### Warm Springs on February 2, 1972, remaining there about thirtydays. An examination was performed and a report submitted to the court. "On March 13, 1972, defendant Spurlock filed an affidavit of disqualificationof 

### 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 localpsychiatrist and for separate counsel. Both motions 

### were denied. Subsequent testimony by Spurlock's wife indicated thathe had been to Warm 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

I the courtpro 

### se for 

### a 

### writof habeas corpus based on violation of hisrights 

### ata preliminary examination forprobable 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 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 toprepare 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 thismotion, the court specifically questioned both defendants aftermaking them aware that their othermotions (includingthe motion for 

### a continuance) would not be granted, 

### as towhether they would stillprefer to have Robert J. Campbell substituted ascounsel replacing D. R. Matthews. Both defendants statedthey so preferred. The court then suggested thatMatthews remain toparticipate in the defense and requested both defendants' permission before Mr. Matthews 

### was permitted to leave. Both defendants gave thatpermission. "At the 

### time the courtwas considering the 

### request for substitutionof counsel, Mr. Matthews stated: 'They have told me absolutely nothing. They 

### willnot confide in

### me, there has been no communication atall.' "In their appeal brief, defendants stated 'Prior to trialthe defendants remained in the Missoula County jail and sought private counsel asbest they could.' The record does not support this statement. Itdoes not disclose thatdefendants or anyone acting intheirbehalf, 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 injail. Itdoes disclose that Mr. Campbell was contacted for the first

### time by Mrs. Spurlock 

### at4:15 p.m. on May 3, 1972, over threemonths after the arraignment of defendants and on the afternoon before the 

### trial date." State

### v. Spurlock, supra, 161Mont. at389-391, 506 P.2d at842-843. The following issueshave been presented to thisCourt for review: 1. Whether the requirement of joint representation of petitioner and a codefendant over timely objection necessitatesa reversal of petitioner's conviction. 2. Whether petitioner 

### was denied effective assistance of counsel prior to trialand, 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 tohis 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 tonecessitate a reversal of his conviction. 5. Whether the failure toprovide petitioner with 

### atranscript of proceedings and failure of the court reporter

tofilehis notes with the clerk of courtviolate petititioner's right todue process so as to necessitate a reversal of his conviction. 6. Whether the failure toprovide 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 inthis Court on the argued appeal, Statev. Spurlock, supra, and 

### willnot be reviewed a second 

### timeon appeal. Issue 3 concerns the identification inthe police vehicle on the night of the crime. Courts have universally held that a showup 

### isnot 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, 18L.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 ina 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 courtheld inBates v. United States (1968), 132App.D.C. 36, 405 F.2d 1104, that the defendant's identification, which was introduced atthe 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. Inregard to Issue 5, the

### matter of 

### a free transcript, petitioner's argument on thispoint 

### seems tobe that he 

### wasdenied 

### a trialtranscript and hence, due process, since the court reporter's notes were kept with the courtreporter rather than the clerk of court. In fact, the reason he 

### was denied a transcript 

### is set out inthe DistrictCourt's Finding of Fact No. 

### I1 as follows: 

# ".



# . . Until the filingof thispetition, the petitioner had acted inconcert with his codefendant, Leonard E. Doney, inattempting to get a free transcript, but until the present petition, neither the petitioner nor Doney had 

### alleged anything towarrantmoving any court's discretion toorder 

### 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 inFederal DistrictCourt for the District of Montana, cause no. 2392." Whatever the legality or wisdom of court reporters keeping their notes, thatpractice did not deny petitioner a transcript, nor does the

### matter constitute any constitutional issuemandating any relief for petitioner. Issue 6 

### claims error due to irregularities with respect topetitioner'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 fiftyyears in the Montana State Prison. Petitioner now stateshe 

### was prejudiced because he claims he didnot have an opportunity toexamine the presentencereport prior to sentencing nor to cross-examine witnesses with respect to the report. The principal point inconnection with this issue is the fact thatpetitioner has not pointed to a single error

or ambiguity inhispresentence 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 

### isclearly the case here. Unless petitioner

can show something erroneous in the presentence report, he 

### willnot be granted a resentencing. The findings of factand conclusions of 

### lawof the DistrictCourt are affirmed and accepted; the 

### writof habeas corpus is dismissed. 

# / 

# & Justice 

# x%

We concur:

Chief Justice \

Justices