No. 83-247 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsCHESTER FIELD, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Morales, Volinkaty & Harr; Richard Volinkaty, 

Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert L. Deschamps, County Attorney, Missoula, 

Montana; Karen Townsend, Deputy County Attorney 

Submitted on Briefs: Jan. 31, 1985 

~ecided: April 8, 1985 

&PA 8 -- '985 Filed:. 

Clerk 
Mr Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal by the appellant, Field, from a 

conviction of felony theft by a iury trial in the Fourth 

Judicial District, in and for the County of Missoula, State 

of Montana. This case is in two parts in view of the fact 

that following the appellant's conviction of a felony, an 

appeal was taken with new counsel who alleged that the 

District Court erred in determining that defendant had not 

been denied a constitutional right to a fair trial and to 

have effective assistance of counsel at the trial stage. 

This Court in an order dated November 14, 1983, remanded the 

cause to the District Court for a hearing to determine 

whether the appellant's claim of ineffective assistance of 

counsel, particularly with regard to his failure to call a 

witness, Dave Wedell, was a denial- of effective assistance of 

counsel. We directed the trial court to hold an evidentiary 

hearing on the issue of ineffective assistance of counsel a.nd 

to enter findings of fact and conclusions of law. 

We will first discuss the original conviction which was 

for a felony theft that occurred either on September 4 or 

September 5, 1982, when a jackhammer and other construction 

equipment was stolen from a construction site near Turah 

Bridge in Missoula County, Montana. 

Shortly after this theft was reported and investigated, 

Detective Tom Woods of the Missoula County Sheriff Is Office 

received information that the appellant had in his possession 

the items which had been stolen from the construction site 

and was attempting to sell them. Detective Woods called the 

appellant and, using an assumed name, said that he understood 

that the appellant had a jackhammer for sale and that he 

(Woods) was interested in seeing it. Woods and the appellant 
agreed to meet at a convenience store parking lot in Lolo, 

Montana on September 20, some two weeks after the theft 

occurred. 

Prior to a meeting with the appellant in the parking 

lot, Detective Woods arranged to have a back-up officer, 

Officer McMeekin, at the parking lot. At the meeting, the 

appellant produced the jackhammer, later introduced. and 

identified as the stolen jackhammer and offered to sell the 

same to Detective Woods. After satisfying himself that the 

jackhammer met the description of the stolen property, Woods 

and Officer McMeekin placed the defendant under arrest for 

felony theft. 

During the State's case-in-chief testimony as to the 

market value of the jackhammer was introduced, and in order 

to prove felony theft, as required by section 45-6-301 (5) , 

MCA, the State was required to establish that the jackhammer 

was valued in excess of $150. An owner of a rental agency, 

Mr. Crerar, estimated the value of the jackhammer between 

$500 and $750. 

The defense introduced a witness, Mr. Fuge, who 

testified to the value of the jackhammer as being $75 if it 

worked and little more than junk if it did not work. The 

State on rebuttal introduced evidence from a Mr. Reber as to 

the value of the jackhammer. He stated that based on his 

examination, without operating it, the jackhammer had a value 

of between $250 to $350, hut that if it were operational and 

"sounded good" it would have a value of $500. 

With the operating condition of the jackhammer at 

issue, and with experts from the State and defense differing 

as to its value, the State moved the court for permission to 

perform a demonstration in the parking lot of the courthouse 

with the jackhammer hooked up to an air compressor. This 
motion was granted to the State and a test was performed 

which showed that the jackhammer was functional. The 

appellant argued in rebuttal that the demonstration did not 

prove a great deal since it was not operated "under a load" 

such as breaking up concrete. Neither he nor his attorney 

raised this question at the demonstration where both were 

present. 

The principal issue here is whether the defendant, who 

testified on his own behalf that he received the jackhammer 

from a certain Dave Wedell in payment for a debt, was denied 

a fair trial because Wedell was not called in as a witness. 

The defendant testified that he did not know that the 

property was stolen and he further testified as to the 

whereabouts of Wedell by stating: "I think he is in Mexico." 

Attached to the appellant's brief as an exhibit is a 

purported transcription of an interview between appellant's 

trial-level attorney and Dave Wedell. This transcript was 

not a part of the District Court record and was based upon an 

interview in which the appellant contends that Wedell was a 

material and exculpatory witness. Appellant further contends 

that his attorney's failure to call the witness on his behalf 

constituted ineffective assistance of counsel and a denial of 

a fair trial. 

The first issue is directed to the demonstration of the 

jackhammer and whether the trial judge exercised appropriate 

discretion in granting the State's request. 

The appel-lant argues that only after the State's case 

was in the rebuttal stage to cure what was an apparent 

weakness in their case up to that point, did the trial court 

allow the demonstration to be performed? The appellant 

argues that this was brought about when a juror sent a note 

to the court requesting a demonstration, and this created an 
unfair and misleading situation as far as the appellant's 

preparation to answer the demonstration. 

The record does not support that argument. According to 

the transcript, the State realized that a demonstration would 

be desirable after a rebuttal witness testified as to the 

value of the jackhammer if it was operational. 

Both sides agree and cite Montana case authority. In 

State v. Close (Mont. 1981), 623 P.2d 940, 948, 38 St.Rep. 

177, 187, citing Brown v. North Am. Mfg. Co. (1978), 176 

Mont. 98, 117, 576 P.2d 711, 722, this Court held: 

"Generally, allowing demonstrative evidence is within the 

discretion of the trial judge and is subject to review only 

upon a showing of a manifest abuse of discretion. " See also 

Workman v. McIntyre Construction Co. (Mont. 1980), 617 P.2d 

1281, 37 St.Rep. 1637; State v. Blair (1966), 147 Mont. 87, 

410 P.2d 450. 

The jackhammer demonstration assisted the jury in their 

deliberation and helped in establishing its value. Testimony 

from witnesses for the State and the defense led the jury to 

conclude the jackhammer's worth. 

We find there was no prejudice in allowing the 

demonstration. Both appellant and his attorney were present 

and appellant's complaint that it did not operate "under a 

load" is not valid in view of the fact that no objection was 

made at the time of the demonstration and in fact was first 

made only in the appellant's brief to this Court. In 

addition, appellant complained that there were no 

precautionary instructions concerning this demonstration 

given to the jury. However, he did not propose any 

instructions to the court as required by section 

46-16-401 (4) (a), MCA. 
The second issue for consideration is the failure to 

call a witness, Dave Wedell. Appel-lant claims this failure 

amounts to attorney incompetence which denied the defendant 

his right to have witnesses testify on his behalf. 

As previously noted, it was this issue which caused 

this Court to return this case to the District Court for a 

hearing on the competency of counsel and our discussion on 

this issue will include the proceedings on remand. As noted 

in the respondent's first brief to this Court, this 

allegation, which included attaching a statement made in the 

defense counsel's office on the part of Wedell, is outside 

the record of the trial court and is thus not fit for 

disposition on direct appeal, section 46-20-701, MCA. This 

Court has previously recognized the impropriety of attempting 

to supplement the record on appeal. See State v. Hall (Mont. 

1983), 662 P.2d 1306, 40 St.Rep. 621. 

The appellant refers to Wedell as an exculpatory 

witness and alleges "[tlhis witness corroborated the 

defendant s testimony and, in fact, exonerated the 

defendant." Even if we were to include the statement as to 

how Wedell received the jackhammer, his statement is so 

inconsistent that it has no evidenciary value. Wedell 

replied to the questions as to how the appellant came to 

possess the jackhammers: "No, I dropped them off to Chester 

Field in December." The facts here indicate that the 

jackhammers were stolen in early September and the appellant 

was arrested on September 20th, with one of the jackhammers 

in his possession. It can be seen from the very statement of 

Wedell that his delivery of the jackhammers to the appellant 

in December is hardly exculpatory. In truth, his testimony 

is completely destructive to the appellant. After counsel's 

interview of Wedell and considering his statements, it is the 
opinion of the two attorneys called on the ineffective 

assistance of counsel hearing, that his statements would have 

destroyed the defendant. Wedell would not have been helpful 

to the defendant and defense counsel quite properly exercised 

his discretionary judgment by not putting Wedell on the stand 

if he had been ava-ilable. 

In addition, as previously noted, when asked the 

whereabouts of Wedell, the appellant on direct examination 

stated he thought he was somewhere in Mexico. The record 

indicates Wedell at no time wanted to appear and be a part of 

the defense of the appellant in this case. 

This Court gave the appellant the benefit of the doubt 

remanding the matter to the District Court for 

evidentiary hearing. After the hearing on February 29, 1984, 

the presiding judge, the Honorable Douglas G. Harkin, entered 

extensive findings of fact and conclusions of law. Among the 

concl-usions are the following: 

"12. The allegations of ineffectiveness 

raised by the Defendant in this matter I are unsupported by the evidence produced 

at the evidentiary hearing, or by a 

review of the record of the trial. Mr. 

Wedell is a reluctant witness who 

apparently would have made a negative 

impression upon the jury even if he could 

have been found for the trial. The 

danger of his negative impact being 

attributed to the Defendant was great. 

Thus, the decision by Mr. Goldman 

[original counsel for the defendant] not 

to pursue his testimony is founded upon 

cognizable reasons and cannot be said to 

be a demonstration of ineffective 

assistance of counsel. In fact, to have 

called Mr. Wedell under these 

circumstances would have been at most the 

presentation of testimony known to be 

false and thus unethical, and at least, 

in light of his demeanor and apparent 

credibility problems, such a risky tactic 

as to have perha-ps been an act of 

incompetency. Thus, the failure to call 

him cannot be truly faulted. The 

decision to permit the Defendant to 

testify is also founded upon cognizable 

reasons, and cannot be said to be a 
demonstration of ineffectiveness. To 

have refused to have permitted him to 

testify in light of his expressed wishes 

would have truly been 'remiss.' 

"13. Defendant's claim of ineffective 

assistance of counsel is not supported by 

the evidence. Mr. Goldman's actions 

relating to the witness Dave Wedell and 

the Defendant's testimony at trial were 

clearly within the range of competence 

demanded of attorneys in criminal cases." 

This Court held in State v. Hall, supra, that "An 

attorney's reputation is his most prized possession." 

Appellant's counsel might have conducted the trial 

differently, however, "[tlhe fact that some other 

lawyer . . . would have done differently . . . is no ground 

for branding the appointed counsel with opprobrium of 

ineffectiveness. Or infidelity, or incompetency . . . " 

State v. Lopez (Mont. 1980), 605 P.2d 178, 180-181, 37 

St.Rep. 36, 38-39; citing Williams v. Beto (5th Cir. 1965), 

The judgment of the District Court is affirmed. 

We concur: A 

ief Justice 

I /