NO. 82-393 

IN THE SUPREME COURT OF THF STATE OF MONTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

PHILLIP HARRIS, 

Defendant and Appellant. 

Appeal from: District Court of the Sixteenth Judicial District 

In and for the County of Custer 

Honorable Alfred B. Coate, Judqe presidinq. 

Counsel of Record: 

For Appellant: 

Leonard J. Haxby, Butte, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Keith D. EIaker, County Attorney, Miles City, Montana 

Submitted on briefs: February 2, 1984 

Decided: May 9, 1984 

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Clerk 
Mr. Justice John C. Sheehy delivered. the Opinion of the 

Court. 

Phillip Harris appeals from a judgment entered in the 

District Court for the Sixteenth Judicial District, Custer 

County. The judgment followed a jury verdict finding Harris 

guilty of aggravated assault. We affirm the conviction. 

On September 6, 1981, Gordon Arthur was shot in the left 

knee with a shotgun outside the Wild Horse Pavilion bar east 

of Miles City. Arthur had stopped there after spending the 

day in Bainville; he was on his way to Ri.llings. According 

to Arthur, he had numerous drinks at the Wild Horse while 

visiting with the bartender (the defendant in this case), 

Phillip Harris, and other patrons. During this time, Arthur 

also told someone that he had a gun in his pickup. 

Arthur testified that he had gone out the door of the 

bar when he heard someone say "Turn around." Arthur turned 

around and saw Harris standing with a shotgun pointed between 

Arthur's eyes. Harris lowered the gun to Arthur's stomach 

and then his leg. The gun was discharged while positioned 

approximately a foot from Arthur ' s I.eg . Arthur ' s testimony 

was that he then heard a voice asking, "Why the hell did you 

shoot him, Phil?" and the response "Nobody says that they are 

going to go out in their pickup and get a gun and come back 

into my watering-hole establishment." 

A jury found Harris guilty of aggravated assault; he 

appeals, raising the following issues: 

1. Did the District Court err by denying Harris' motion 

for a continuance to allow additional time to locate a 

witness? 

2. Was Harris deprived of effective assistance of 

counsel, as guaranteed bv the federal and state 
constitutions, because of a failure to procure a material 

witness? 

3. Did the District Court err by giving a jury 

instruction on the effect of voluntary intoxication on 

Harris' mental state? 

4. Was the State guilty of prosecutorial misconduct as 

a result of certain statements made in the opening and 

closina arguments? 

On June 15, 1982, the morning of the trial in this case, 

the District Court hea-rd argument on Harris' motion for 

continuance filed June 11. Harris claimed. that he needed 

AvCkccr 

additional time to locate a nurse who tended to at the 

hospital on September 6, 1981. It was believed that the 

nurse's testimony would be that PtvJcLyr 

'IS made an admission 

while in the hospi.ta1, to the effect that the gunshot wound 

was self-inflicted. While arguing the motion, Harris' 

counsel declared. that he knew the name of the nurse, that she 

ha.d moved out of the state, and that he had attempted to 

locate her by phone and by checking the hospitals in the 

Wisconsin town where her lawyers were located. 

Harris contends that the District Court should have 

granted the motion for a continuance, as the nurse's 

testimony would have been material to Harris' case. He 

claims his case was unduly prejudiced by the denial. 

Harris also contends that the failure of his trial 

counsel to secure the nurse's testimony was a denial of his 

constitutional right to effective assistance of counsel. He 

argues that the production of a witness who would totally 

contradict the State's case was necessary to the preparation 

of an adequate defense. 
The State argues that the continuance was properly 

denied because (1) according to section 46-13-202, MCA, it 

was within the District Court's discretion to deny the 

motion; (2) Harris did not show that due diligence in 

attempting to locate the nurse was exercised; (3) there was 

no factual basis offered for Harris' claim as to what the 

nurse would say; (4) there was no showing that the nurse 

would be willing to testify; (5) there was no preiudice shown 

to Harris' case resulting from the denial of the motion; and 

(6) there was no showing that Wisconsin wou1.d enforce a 

subpoena issued to compel the nurse's testimony. 

Section 46-1-3-202, provides: 

"Motion for continuance. (1) The defendant or the 

state may move for a continuance. If the motion is 

made more than 30 days after arra.ignment or at a.nv 

time after trial has begun, the court may require 

that it be supported by affidavit. 

"(2) The court may upon the motion of either party 

or upon the court's own motion order a continuance 

if the interests of justice so require. 

"(3) All motions for continuance are addressed to 

the discretion of the trial court and shall be 

considered in the light of the diligence shown on 

the part of the movant. This section shall be 

construed to the end that criminal cases are tried 

with due diligence consonant with the rights of the 

defendant and the state to a speedy trial." 

Because the statute leaves the granting of a continuance to 

the discretion of the trial court, we must look only for an 

abuse of discretion. We find none. As noted by the State, 

the only basis in the record for the motion for a continuance 

was a. belief by Harris and his counsel that there was a nurse 

who attended Arthur at the hospital a.nd who might offer 

testimony as to admissions by Arthur regarding the gunshot 

wound. 

The record shows that the District Court properly 

considered the diligence of Harris in procuring the witness 
in light of the amount of time which. had passed since the 

incident took place. The record also shows there were no 

assurances given to the trial court that the nurse would be 

located in a reasonable time or that her testimony would be 

as Harris and his counsel believed it would be. We do not 

find an abuse of discretion where the motion for continuance 

is so void of specific allegations and support. State v. 

DiGiallonardo (1972), 160 Mont. 379, 503 P.2d 43. 

That brings us to the second issue and to the conclusion 

that Harris' claim of ineffective assistance of counsel is 

not supported by the record. He claims that his trial 

counsel's failure to procure the nurse's testimony at trial 

constituted ineffective assistance of counsel in violation of 

his constitutional rights. Harris does not contend that his 

trial counsel was not generally diligent in representing him. 

Given the circumstances surrounding Harris' trial 

counsel's failure to procure the nurse's testimony, discussed 

above, we find Harris' argument unpersuasive. In State v. 

Rose (Mo~t. 1980), 608 P.2d 1074, 1081, 37 St.Rep. 642, 

649-50, this Court adopted the following test to determine 

whether a defendant has been denied effective assistance of 

counsel : 

"'Persons accused of crime are entitled to the 

effective assistance of counsel acting within the 

range of competence demanded of attorneys in 

criminal cases.'" 

We have read the record in this case and determined that the 

assista.nce given by Harris' trial counsel was within the 

ra.nge of competence demanded in criminal cases. 

Harris raises a third issue of whether the District 

Court erred by giving the following jury instruction: 

"An intoxicated condition may be taken into 

consideration in determining the existence of a 
mental state which is an element of the offense, 

but an intoxicated person is criminallv responsible 

for his conduct unless his intoxication renders him 

incapable of acting purposely or knowingly." 

The instruction uses language similar to that found in the 

following statute: 

"45-2-203. Responsibj-lity--intoxicated or drugged 

condition. A person who is in an intoxicated or 

drugged condition is criminally responsible for 

conduct unless such condition is involuntarily 

produced and deprives him of his capacity to 

appreciate the criminality of his conduct or to 

conform his conduct to the requirements of law. An 

intoxicated or drugged condition may he taken into 

consideration in d-etermining the existence of a 

mental state which is an element of the offense." 

Harris testified that he had been drinking the day of the 

shooting, but contends that the instruction was confusing to 

the jury and improper as intoxication was not an issue in the 

case. 

The record includes evidence of Harris' drinking and 

therefore supports the giving of the instruction. State v. 

Kirkaldie (1978), 1.79 Mont. 283, 587 P.2d 1298; Sta.te v. 

Miner (1976), 169 Mont. 260, 546 P.2d 252. Furthermore, 

Harris ha.s fa.iled to show prejudice to his case resulting 

from the giving of the instruction and he has failed to show 

that it affected his substantial rights. Thus, we find no 

error by the District Court in giving the instruction. 

The final issue of this case involves statements made by 

the prosecutor during hi.s opening and closing statements to 

the jury. Harris contends that the comments prejudiced his 

case and thereby violated. his rights to due process and equal 

protection. He argues that, although no objection was made 

by defense counsel at the time, this Court should see the 

"plain error" and reverse his conviction. 

The relevant statements made by the prosecutor include 

comments as to the truthfulness and credibility of the 
witnesses, a comment as to the alleged prostitution occurring 

at the Wild Horse Pavilion, a comment as to how the Red 

Brigade outfit in Italy would intimidate people by shooting 

them in the kneecaps, and a comment about the potential 

'c intimidation of Gordon Arthur by Phillip Harris. 

No objection was made by the defense during either the 

prosecutor's opening or closing statements. A lack of 

objection does not preclude us from considering any error at 

the trial court level which affects the substantial rights of 

a defendant. Section 46-20-702, MCA; Rule 103, M.R.Evid.; 

Halldorson v. Halldorson (1377), 573 P.2d 1.69, 175 Mont. 170. 

In State v. Gladue (Mont. 1984), - P.2d I 41 

St.Rep. 249, this Court discussed the standards used to 

decide whether a prosecutor's comments as to a defendant's 

not taking the witness stand were such as to require reversal 

of a conviction. In Gladue, we held that reversal is 

required where the Court cannot say, beyond a reasonable 

doubt, that the prosecutor's comments did not contribute to a 

guilty verdict. 

In this case, we are not faced with comments which 

allegedly or potentially infringe on a defendant's right to 

not testify. In fact, the alleged error here did not affect 

any of the defenda.nt1s substa.ntia1 or constitutional rights. 

The State was free to comment to the jury regarding the 

credibility and truthfulness of the witnesses, to the extent. 

that it is within the jury's purview to jud-ge the witnesses' 

credibility and truthfulness. The remainder of the remarks 

&es 

also &e not require reversal. FJe do not condone them, for 

they could be highly prejudicial under other circumstances; 

but here we find that they did not affect any of Harris' 

substantial rights and were at most harmless error. 
The judgment is affirmed. 

We Concur: 

aclegiu,dq Chief Justibe