NO. 82-393
INTHE 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 fortheCounty of Custer Honorable AlfredB. 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

Submittedon briefs: February 2, 1984 Decided: May 9, 1984

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### ,,'. --'<++A /<J;/( \., .':;':..?AA./'~-~.,,,,/ ClerkMr. 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 Arthurwas shot in the left kneewith a shotgun outside the Wild Horse Pavilionbar 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 thathe had a gun inhis pickup. Arthur testified that he had gone out the door of the bar when he heard someone say "Turn around." Arthur turned around and sawHarris standing with a shotgunpointed 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 shoothim, Phil?"and the response "Nobody says that they are going to go out in their pickup and get a gun and come back intomy watering-hole establishment." A jury found Harris guilty of aggravated assault; he appeals,raising the following issues: 1. Did theDistrictCourt err by denyingHarris'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 stateconstitutions, 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 closinaarguments? 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 anursewho tended to at the hospital on September 6, 1981. It was believed that the nurse's testimony would be that PtvJcLyr 'ISmade an admission while in the hospi.ta1,to the effect that the gunshot wound
was self-inflicted. While arguing the motion, Harris' counseldeclared.thathe knew thename of the nurse,that she ha.dmoved out of the state, and that he had attempted to locate her by phone and by checking the hospitals in the Wisconsin townwhereher lawyerswere 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 claimshis casewasunduly 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 adequatedefense.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)therewas nopreiudice shown to Harris' case resulting from the denial of themotion; 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) Thedefendant or the statemaymove for a continuance. If the motion is made more than 30 days after arra.ignmentor at a.nv time after trial has begun, the court may require that itbe supportedby affidavit. "(2) The courtmay upon themotion of either party or upon the court's ownmotion order a continuance if the interestsof 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 rightsof 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 onlybasis in the record for the motion fora continuance
was a.belief by Harrisand his counsel that therewas anurse 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 witnessin 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 themotion for continuance is so void of specific allegations and support. State v. DiGiallonardo (1972),160Mont. 379,503 P.2d 43. Thatbrings 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 assistanceof counsel in violation of his constitutional rights. Harris does not contend that his trial counselwas notgenerally diligent in representinghim. Given the circumstances surrounding Harris' trial counsel's failure to procure thenurse'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.ngeof competencedemanded in criminal cases. Harris raises a third issue of whether the District Courterred by giving the following jury instruction: "An intoxicated condition may be taken into consideration in determining the existence of amental state which is an element of the offense, but an intoxicatedperson is criminallvresponsible forhis conduct unless his intoxication renders him incapable of actingpurposely 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 conditionmay 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 instructionwas confusing to the jury and improper as intoxicationwas 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.tev. 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 theDistrict Court in giving the instruction. The final issue of this case involves statements made by the prosecutor during hi.sopening and closing statements to the jury. Harris contends that the comments prejudiced his
case and therebyviolated.his rights to dueprocess and equal protection. He argues that, although no objection was made by defense counsel at the time, this Court should see the "plainerror" and reverse his conviction. The relevant statements made by the prosecutor include comments as to the truthfulness and credibility of thewitnesses,a commentas to the allegedprostitution 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 Arthurby PhillipHarris. 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 levelwhich affects the substantial rights of

a defendant. Section 46-20-702, MCA; Rule 103, M.R.Evid.; Halldorsonv. Halldorson (1377),573 P.2d 1.69, 175Mont. 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 thewitness 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 commentsdid 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.ntia1or constitutionalrights. The State was free to comment to the jury regarding the credibility and truthfulness of the witnesses, to the extent. that it iswithin the jury's purview to jud-gethe 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 rightsandwere atmost harmless error.The judgment is affirmed.

We Concur: 

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Chief Justibe