No. 84-404 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsRANDALL CLIFFORD ROYER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable Robert M. Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Brian J. Smith, Polson, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John R. Frederick, County Attorney, Polson, Montana 

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Submitted on Briefs: Jan. 31, 1985 

Decided: February 21, 1985 

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Clerk 
Mr. Justice John C. Sheehy delivered the 0pini.ori of the 

Court. 

This is the second time this case has been before us on 

appeal. In November 1980, defendant Boyer was convicted in a 

jury trial in the Fourth Judicial District, Lake County, of 

two counts of sexual intercourse without consent and one 

count of aggravated kidnapping. He was sentenced to 30 years 

on each count of sexual intercourse without consent and 10 

years for the aggravated kidnapping. All sentences are to 

run concurrentl-y . 

Defendant's conviction stems from a series of events 

that took place in Missoula and Lake Counties on April 16 and 

17, 1380. Defendant appealed his conviction and raised two 

issues for our consideration, to-wit: (1) lack of a speedy 

trial; and (2) ineffective assistance of counsel. On 

February 28, 1984, we decided State v. Boyer (Mont. 1984), 

676 P.2d 787, 41 St-Rep. 321. We held that Boyer was not 

denied a speedy trial but the record was not sufficient to 

determine whether Boyer was denied the effective assistance 

of counsel. Accordingly, we remanded the case to the 

District Court for an evidentiary hearing and ruling on the 

motion for a new trial. 

A hearing was held on June 14 and 15, 1984 in Lake 

County, Judge Holter presiding. Several witnesses testified 

at the hearing including the defendant Boyer, his trjal 

counsel Harris, Judge Henson who heard the original case, P4r. 

Heinz, the prosecuting attorney, and witnesses Hammond, 

Reikena and McDonald who defendant claims could have provided 

a defense for him at trial hut were not called by trial 

counsel Harris. The testimony at the hearing addressed all 
the factual issues surrounding defendant Boyer's contention 

that trial counsel was incompetent. Findinqs of fact and 

conclusions of law were issued on August 6, 1984 and 

defendant's motion for a new trial was denied. From the 

denial of this motion, defendant appeals. 

Defendant presents two related issues on appeal. Does 

the evidence support the findings and concl.usions of the 

District Court? Does the record show the defendant was 

denied effective assistance of counsel? 

We shall address the first issue and determine whether 

the findings of the District Court are supported by the 

evidence. Only after a factual record j s established can we 

view the conduct of trial counsel to ascertain whether such 

conduct deprived the defendant of a constitutional right. 

The evidentiary hearing on remand is a fact-finding 

process within a criminal- case so the standard of review is 

the same as for criminal bench trials. There must be 

substantial evidence to support the findings of the trial 

court. See State v. Duncan (1979), 181 Mont. 382, 387, 593 

P.2d 1026, 1030. Using this standard, we view defendant's 

specific contentions. 

Defendant contends trial counsel Harris did not visit 

him often enough in jail to adequately prepare a defense. 

The trial court found 20 hours by defendant's estimate and 40 

hours by Harris' estimate were spent with defendant in jail. 

The trial court explained the discrepancy in the jail log by 

the fact that Harris stated he visited defendant in 

conjunction with seeing other clients at the jail and this 

was not reflected by the log. The court found Harris spent 

between 250 and 300 hours preparing for trial. The record 

containing the testimony of defendant, Harris, and the jailer 
support the court's findings and we hold finding of fact no. 

3 supported by substantial evidence. 

In finding of fact no. 4a the court found that Harris 

contacted potential witnesses Hammond and Riekena and neither 

had any information that would have been helpful to 

defendant's case. The testimony as to whether or not these 

wit.nesses were contacted by Harris is inconsistent. We need 

not decide whether this finding was erroneous because it is 

undisputed that neither Hammond nor Riekena could provide any 

information concerning the events of April 15 and 16, 1980 

that could help provide a defense to defendant for the crime 

which he was charged. They so testified at the hearing. 

Defendant's argument that trial counsel was negligent 

for not examining the victim's clothing is without merit. 

The trial court found that the evidence could only show the 

presence of menstrual. blood and this would not have helped 

defendant's case. It would not have proven the victim did 

not sustain injuries. Defendant himself stated what he 

thought it would prove when he stated at the hearing, "Well, 

it would prove that all the blood didn't come from those 

lacerations. That's what jt could prove." 

The fact that Harris did not take depositions of various 

witnesses after procuring an order allowing him to take the 

depositions is insignificant. Defendant refused to pay for 

those depositions. All the witnesses testified at trial and 

defendant shows no prejudice or inadequate cross examination 

from the failure to obtain depositions. The findings of the 

trial court are supported by substantial- evidence. 

Defendant contends the District Court's finding of fact 

no. 4 (d) that Harris spent sufficient time reviewing witness 

statements with defendant is erroneous. The court chose to 
believe Harris and not defendant. "It is the function of the 

trier of facts, in a case tried to the judge, to determine 

the credibility of the witnesses and the weight to be given 

the testimony and he may pick and choose which of the 

witnesses are to be believed from a consideration of all the 

evidence. State v. Medicine Ball Jr. (1968), 152 Mont. 34, 

445 P.2d 916 . . . " State v. Longacre (1975) 168 Pont. 311, 

313, 542 P.2d 1221, 1222. We hold the court's determination 

that trial counsel Harris spent sufficent time consulting 

with defendant and that he reviewed statements an2 other 

evidence with the defendant in preparation for trial is 

supported by substantial evidence. 

The right to be represented by counsel is guaranteed to 

the criminal defendant by the Sixth Amendment to the United 

States Constitution and by Article 11, Section 24 of the 

Montana Constitution. The right to counsel guaranteed is not 

only the presence of counsel but the effective assistance of 

counsel. In State v. Rose (1980), 187 Kont. 74, 86-87, 608 

P.2d 1054, 1080-81, we set forth a standard to measure the 

effectiveness of the trial. counsel under Montana's 

Constitution. Persons accused of crime are entitled to the 

effective assistance of counsel acting within the range of 

competence demanded of attorneys in criminal cases. The 

specific acts or omissions of trial counsel must prejudice 

the defendant's case. The prejudice must be of such a nature 

and magnitude that defendant is denied a fair trial. 

Recently the United States Supreme Court set forth 

standards governing the ineffective assistance of counsel in 

Strickland v. Washington (1 984) , U.S. 104 S.Ct. 

2052, 80 L.Ed.2d 674. The Court adopted the following 

two-pronged test: 
"First, the defendant must show that counsel's 

performance was deficient. This requires showing 

that counsel made errors so serious that counsel 

was not functioning as counsel guaranteed the 

defendant by the Sixth Amendment. Second, the 

defendant must show that the deficient performance 

prejudiced the defense. This requires showing that 

counsel's errors were so serious as to deprive the 

defendant of a fair trial., a trial whose result is 

reliable." - Id., 80 L.Ed.2d at 693. 

Defendant failed to demonstrate to the trial court at 

the remand hearing or to this Court on appeal that he was 

deprived of a fair trial by ineffective assistance of 

counsel. FJe affirm the order denying defendant a new trial. 

and. affirm his conviction. 

The State moved thj-s Court to amend the statement of 

facts recited in our original opi.nion, State v. Boyer (Mont. 

19841, 676 P.2d 787, 41 St.Rep. 321. We have reviewed this 

statement of facts and find it to be a concise and accurate 

recitation of the essential facts on which the defendant wa.s 

convicted. Including additional facts containing 1.urid 

details v~ould not aid in illuminating the issues in this 

case. They would be surplusage. Motion denied. 

Order denying new trial is affirmed. 

Conviction affirmed. 

We Concur: 

Chief Justice