No. 84-404 INTHE SUPREME COURT OF THE STATE OF MONTANA 1985

STATE OF MONTANA, Plaintiff and Respondent,
-vsRANDALL CLIFFORD ROYER, Defendantand Appellant.

APPEAL FROM: DistrictCourtof the TwentiethJudicial District, Inand forthe Countyof Lake, TheHonorableRobertM. Holter, Judge presiding.

COUNSEL OF RECORD:

ForAppellant: BrianJ. Smith, Polson, Montana

ForRespondent: Hon. Mike Greely, AttorneyGeneral, Helena, Montana John R. Frederick, CountyAttorney, Polson, Montana

- -- Submittedon Briefs: Jan. 31, 1985 Decided: February 21, 1985

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## 4.u<-/ZhL,4-J ClerkMr. Justice John C. Sheehy delivered the 0pini.ori of the Court.

This is the second time this casehas been before us on appeal. In November 1980,defendantBoyerwas convicted in a jury trial in the Fourth Judicial District, Lake County, of two counts of sexual intercourse without consent and one countof aggravated kidnapping. He was sentencedto 30years
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 inMissoula and LakeCounties onApril 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 anew 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 counselHarris, JudgeHensonwhoheard 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 

### allthe 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,defendantappeals. 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 assistanceof counsel? We shall address the first issue and determine whether the findings of the District Court are supported by the evidence. 

### Only after a factualrecord js established canwe view the conduct of trial counsel to ascertainwhether 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), 181Mont. 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 20hoursby defendant's estimate and 40 hours by Harris' estimatewere spentwith 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 ofdefendant,Harris,and the jailersupport the court's findings and we hold finding of factno. 3 supportedby substantialevidence. In finding of fact no. 4a the court found that Harris contactedpotentialwitnesses 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.nesseswere contacted by Harris is inconsistent. We need not decide whether this finding was erroneous because it is undisputed that neitherHammondnor Riekena couldprovide 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 couldprove." The fact that Harrisdid 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 thewitnesses testified at trial and defendant shows no prejudice or inadequate cross examination from the failure to obtain depositions. The findings of the trial courtare supportedby substantial- evidence. Defendant contends the District Court's finding of fact
no. 4(d)that Harris spent sufficient time reviewingwitness statements with defendant is erroneous. The court chose tobelieve Harrisand notdefendant. "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

# .. ." Statev. Longacre (1975) 168 Pont. 311, 313, 542 P.2d 1221, 1222. We hold the court'sdetermination 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 supportedby substantialevidence. 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 isnot only the presence of counselbut 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. Theprejudicemust be of such a nature andmagnitude thatdefendant is denied a fair trial. Recently the United States Supreme Court set forth standards governing the ineffective assistance of counsel in Strickland v. Washington (1984)

## , 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 thedefense. 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., 80L.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-sCourt to amend the statement of facts recited in our original opi.nion,State

### v. Boyer (Mont. 19841, 676 P.2d 787, 41St.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 defendantwa.s convicted. Including additional facts containing 1.urid details v~ouldnot aid in illuminating the issues in this
case. Theywould be surplusage. Motion denied. Order denyingnew trial is affirmed. Convictionaffirmed.

We Concur:

Chief Justice