Yo. 82-232 INTHE SUPREME COURT OF TEE STATE OF MONTANA 1983

STATE OF MONTANA, Plaintiff and Respondent,

-vsKEVIN D. HALL,Defendant and Appellant.

Aspeal from: DistrictCourt of the EighthJudicial District, Inand fortheCounty of Cascade, The Honorable John M. McCarvel, Judge ?residing.

Counsel of Record: For Appellant: Thomas E. Boland, Great Falls, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana J. Fred Bourdeau, County Attorney, Great Falls, Montana

Submittedon Briefs: March 17, 1983 Decided: 

### MaY 51 1983

Filed: 

## MAY

## 5

# -1983

-- ClerkMr. Justice John Conway Harrison delivered the Opinion of the Court.

Kevin Hall

### was charged with the 

### crime of felony theft inthe Eighth Judicial District, County of Cascade. An information, filed on January 11, 1982, alleged that Hall purposely 

### or knowingly obtained control over 

### a 1964 Chevrolet 3/4 ton pickup truck, knowing that the truck had been stolen by another, and purposely orknowingly used, concealed orabandoned the property insuch a manner as 

### to deprive the owner. These allegations, if supported, would establish commission of the offense of the£t pursuant 

### to section 45-6-301 (3)(b)

## ,MCA. The defendantpled not guiltyand the 

### case was presented 

### to 

### a jury. The jury returned a verdict of guilty. The defendant 

### was released on his own recognizance pending imposition of sentence. Prior to sentencing, defendant filed a motion for a new trial. Hearing on the motion 

### was held May 

### 7, 1982. The court denied the motion. Thereafter, on May 10, 1982, defendant

### was sentenced to tenyears imprisonment 

### as 

### a persistent felony offender and five years imprisonment for the 

### crime of the£t. The five-year sentence

### was suspended. At the sentencing hearing, defendant made known his intentions to seek review in this Court, and in connection therewith made an oral motion to stay the execution of sentence pending appeal. The writtenmotion and the notice of appeal 

### were filedon that 

### same day. The court denied the stay of execution, and defendant

### was sent

### to the stateprison atDeer Lodge. On August 31, 1982, the defendant filed a motion in this Court to stay the appeal and to remand the case to the District Court. Defendant's motion was based upon the claim of newlydiscovered evidence. On September 3, 1982, this Court granted defendant's motion and the case 

### was again before the District Court for a determination of whether 

### a new 

### trial should be granted because of the new evidence. On November 15, 1982, the District Court heard arguments and on November 30 entered findingsof factand conclusions of 

### law and denied defendant's motionfor a new trial. In effect, the court ruled that there 

### was no

new evidenceon which 

### to award a new trial. The defendant has raised three issues for our review; (1) whether there is substantial evidence to support the verdict of guilty, (2)whether the trial court erred by not granting a new trial, and (3)whether there

### was a denial of effectiveassistance of counsel at trial. 

### We have carefullyreviewed the record and find no 

### merit in appellant's contentions, therefore the District CourtIsjudgment and sentence 

### is a f firmed

# . On 

### or aboutNovember 13, 1980, a black-colored 1964Chevrolet 3/4 ton pickup was reported stolen from Lucky Motors in Great Falls. The pickup 

### was not seen again until 

### more than 

### a year 

### later when Wayne Thody spotted it in the parking lot of a Great Falls restaurant. Thody had owned the truck prior to transferring it 

### to Lucky 

### Motors. Thody knew that Chuck Plant, the

owner of Lucky Motors

## , had reported the truck stolen. Thody telephoned Plant who in turn telephoned the police department. Thody had the foresight 

### to relay the license plate number, which



### was 2T-41247. The police investigated. The license plate number belonged to a 1963 green GMC pickup truck owned by Mr. Fladstol, the defendant's stepfather. A policeofficercontacted 

### Mrs. Fladstol concerning the licenseplate. 

### Mrs. Fladstol showed the officera vehicle registration, con£irming that the number 2T-41247 

### was registered for a 1963 GMC pickup. 

### Mrs. Fladstol 

### also informed the officer that the GMC truck had recently been involved inan accident in which her son, the defendant, was the driver. The officer who investigated the accident noted that the license plate number of the GMC was 2T-41247; taken from the front licenseplate on the vehicle. The officerdid not notice whether thevehicle had 

### a rear licenseplate. Atthispoint, thepolice

### were confused. They had received a report that a stolen 1964 Chevrolet pickup 

### was seen bearing the



### same licenseplate number 

### as a 1963GMC pickupwhich had recentlybeen involved in an accident. The police thought thatThody had incorrectly relayed the number on the stolen 1964 Chevrolet. However, the police would soon learn that no mistake 

### was made. Dave Richardson called the police and informed them that he thought his recently acquired 1964 black Chevrolet pickup truck



### was a stolen vehicle. About two weeks 

### earlier, Richardson acquired the 1964 Chevrolet, without title 

### or keys, from the defendant, Kevin Hall. With this information, the police contactedChuckPlantwho positively identified the truck as the one that

### was stolenfrom hisused 

### car 

### lot. The police then impounded thevehicle. When the police first viewed the stolen truck it had no license plates. However, when questioned about the 

### matter, Richardson retrieved from the garbage a license plate with the number 211-41247, which should have been on the 1963 GMC owned by Mr. Fladstol. Richardson had removed the plate atthe urging of the defendant. Richardson testified at trial that when he got the truck from the defendant the plate 

### was on the vehicle; apparently an arrangement whereby the truck could be driven on the 

### streets. According to the state's version of the facts, the defendant began 

### to worry when he learned that the police had contacted his mother concerning the license plate. The defendant then contacted Richardson and told him thathe should remove the license plateand throw it away, and thathe should disguise the truckby painting it with gray primer paint because the truck

### was stolen. It was after learning these things thatRichardson contacted the police. The defendant admits that he transferred a pickup truck to Richardson in exchange for an air compressor and a wheel balancer. However, the defendant 

### claims that the stolen 1964 Chevrolet 

### was not the pickup involved. He 

### claims that he gave Richardson anotherpickup, a 1962Chevrolet half-ton. Concerning the license plate, defendant contends that Richardson must haveremoved the plate from the 1963 GMC when it had been towed to a wrecking yard afterthe accident. He further admitsthathe contacted Richardson, not 

### to tell him the truck 

### was stolen, but to questionhim about the licenseplate thathe suspected Richardson had taken. The jurydidnot believedefendant's versionof the factsand returned a verdict of guilty. Defendant argues thatthe verdict 

### is not supportedby substantial evidence. 

### We disagree. Indeterminingwhether substantialevidence exists

### to support the verdict, 

### we willview the evidence in a light

### most favorable 

### to theprevailing party. The evidencemay be inherentlyweak and it may conflictwith otherevidence yet still be deemed substantial. Gunnels v. Hoyt (1981), Mont

# . ,633P.2d 1187, 38 St.Rep. 1492. Appellant argues that the only evidence against him comes from the testimony of Dave Richardson, the person who 

### was in possession of the stolen truck when the police began their investigation. Apparently, the appellant 

### sees a relationship between the definition of substantial evidence and Richardson's questionable actions in this case. Richardson admitted during direct examination that he accepted the 1964Chevrolet without a titleand withoutkeys. Also, upon learning thatthe vehicle did not have a VIN (vehicle identification number) plate, Richardson admitted that he installed 

### a fake number plate and obtained a fake title to match. Nonetheless, Richardson maintained thathe did not know the truck

### was stolenuntil afterthe defendant told him so. Regardless of Richardson's actions, conclusions drawn about hisveracity are questions for the jury. As

### we said in -- Gunnels, --

-- -- Mont. at - 

### ,633 P.2d at 1191, 38 St.Rep. at1495, where the record contains con£licting evidence, 

### "the credibility and weight given 

### to such conflicting evidence 

### is the province of the jury and not thisCourt

# ."
While Richardson

### 's testimony 

### was important 

### to the 

### state's

### case

## , it cannot be said that it 

### was the only evidence against defendant. Michael Barsotti testified that the defendant told him thatthepickup

### was stolenand thathe (Barsotti)should tell Richardson 

### to get 

### some paint to cover the original 

### color. Barsotti 

### also testified that the defendant said he had lent the license plate toRichardson 

### so the truck could be driven on the 

### streets. We find substantial evidence 

### to support the verdict of guilty. Next, 

### we consider whether the court erred in denying defendant's motion for 

### a new trial. This issue concerns the first motion, not the motion made while arguing for newlydiscovered evidence. Appellant's argument 

### is two-fold

# . Firs

### t, appellant claims that the court did not recognize 

### its inherent discretion, and as a result, failed 

### to exercise discretion. Second, appellant argues that the court erred by not specifying its reasons for denying the motion. These contentions will be dealtwith inturn. We find it difficult 

### to imagine how the court could deny the motion without exercising discretion. Appellant cites the following comment by theDistrict Courtjudge: "Well, I have 

### some personal doubts inmy own mind about this 

### case. It 

### is not up 

### to me to decide the credibility of the witnesses, that 

### is for the jury to decide. The testimony of one witness who is entitled 

### to fullcredit is sufficient fortheproof of any fact. And, of course, twelve people in the jury decided the credibility of the witnesses, 

### so I can't 

### see how I can turn around now and try

### to say their judgment of credibility

### was wrong. So, therefore, I'm going to deny the Motion for new trial." We do not see the above as a judicial denial of its own discretionary power, rather it shows that the court 

### was well



### aware of the 

### limitsof 

### its discretion. As

### we said inLyndes v. Scofield (1979), 180 Mont. 177, 180, 589 P.2d 1000, 1002, "'the trial court's discretion 

### is exhausted when it finds substantial evidence 

### to support the verdict.

### ' (citationomitted) Neither may

a DistrictCourtgranta new trialonlyon thebasisthatitchose

### to believe one line of testimony different from that which the jury believed." The judge's comments onlyreflect an awareness of the aboveprinciples. Next, 

### we consider appellant's contention that the court failed to specify reasons for denial of the motion. Appellant

assumes thatsuch reasons arerequired. We

### are cited 

### to Statev. Williams (1981), - Mont

# .-- - 

## ,632 P.2d 328, 38 St.Rep. 1253, for the proposition that when a trial court denies 

### a motion for

new trial, it must 

### state its reasons therefore. Appellant misreads the case. In Williams, 

### we reviewed an order granting --- - - the defendant a new trial. In granting the new trial, the court did not specify 

### its reasons. 

### We noted that section 46-16-702, MCA, "does not require that the District Court expressly 

### state its reasons for taking whatever action it deems appropriate regarding [motions for new trial]

# ." However, 

### we held that the mandates of Rule 59(f),M.R.Civ.P. 

### are applicable to motions for

new trial in criminal actions. Rule 59(f)

## , M.R.Civ.P. requires that "[aJny order of the court granting a new trial, shall specify the grounds therefor with sufficient particularity 

### as 

### to apprise the parties and the appellate Court of the rationale underlying the ruling, and thismay be done in the body of the order, 

### or in an attached opinion." Williamsholds that reasons -- - - must be stated when granting a new trial, it does not hold as suchwhen a courtdenies 

### a motion fornew trial. Even if appellant's reading of Williams 

### were 

### correct, his - argument would not persuade this Court. The districtjudge did statehis reasons for denial of the motion. It is evident from the judge's comments cited above thathe deferred to the jury as the finder of fact; in effect, ruling that substantial evidence existed tosupport the verdict. Next, 

### we address appellant's assertion that he 

### was denied effective assistance 

### of counsel at the trial level. Appellant alleges numerous instances of error, conceding that no single instance in and of itself would warrant reversal. However,appellant asks this Court to consider the cumulative effect of themany "errors and omissions." We have recognized that the 

### claim of ineffective assistance of counselmay be predicated upon the cumulativeeffectof representation. In Statev. McElveen (1975), 168Mont. 500, 509, 544 P.2d 820, 824, 

### we stated: "'[aldequate representation ina 

### criminal proceeding is the cumulative 

### act of affording the defendant

an adequate defense

# ." (citing Smotherman v. Beto (1967), 276 F.Supp. 579, 586). In support of hisargument, appellantalleges



### more than thirty instances of error. Wehave carefullyreviewed the record and conclude that appellant 

### was effectively represented by trial counsel. In reviewing the record, 

### we have been mindful of the standard adopted by this Court in State v. Rose (1980

. -

### - .-.- Mont

# . - -
.. 

## ,608 P.2d 1074, 1081, 37 St.Rep. 642, 649-50; 

## "'[plersons accused of 

### crime are entitled 

### to the effective assistance of counsel acting within the range of 

### competence demanded of attorneys incriminal 

### cases. 

### " Appellant's 

### claim is groundless. We 

### are disturbed and 

### irritated by what 

### is an unfounded attackon the competence of trial counsel. It is obvious thatappellate counsel scoured the record in an effort to make his cumulative 

### total as high 

### as possible; apparently not caring whether his arguments had substance. In several instances the record is misstated. Sentences 

### are taken out of context. Many of the alleged errors are not errors at all, and if there 

### are instances of 

### error, they 

### are trivial. Appellant seems 

### to conclude that the basis of 

### all error 

### was inadequate preparation. As illustrative of this point, we are cited to a portion of the transcript where defense counsel supposedly tells the jury in closing argument that "he did not meet withDefendant's witnesses and prepare them forthistrial

# ..."
In other words, appellant would have us believe that defense counsel failed 

### to interviewhisown witnessesprior

### to trial, and

even admitted it 

### to the jury. This 

### is not so. Defense counsel



### was attempting 

### to explain inconsistencies inthe testimonyof hiswitnesses. He stated, "Ididn't ask them to get together and straighten their stories out because I wanted them to also be honest, and they came and told you what they remembered

# ." This is clearly not an admission of failure to interview witnesses. This 

### is clearlyan efforttomislead thisCourt. In another instance of alleged 

### error, appellant claims that trial counsel, in closing argument, stated that he did not know if the green GMC had a rear license plate atthe 

### time of the accident; this statement being contrary to defendant's assertion that there was a rear license plate on the vehicle. Appellant suggests that defense counsel cast doubt on his own client's statements. A reading of the transcript indicates thatdefense counsel made these remarks in reference 

### to the testimony of the accident investigation officer, who testified that he, the - - officer, did not know if there was a rear license plate. In

.- - other words, defense counsel was merely relating the officer's testimony. Again, thisis an effort

### to mislead thisCourt. In another instance, appellant refers to a portion of the transcript where the "Trial Court reprimands the prosecutor for continually asking hearsay questions (in spite of no o b j e c t i o n from the Defense Counsel) and the Court then lectures the Prosecutor on the definition of hearsay and the reasons for the hearsay rule." We see no hint of a reprimand from the court; rather, 

### we see an explanation to the jury of the hearsay rule. Furthermore, 

### we note that it was defense counsel's hearsay objection that prompted the court's comments. Appellant's reading 

### of the transcript is strained. Several other alleged errors indicate to us that appellant

was striving to make the "error count" as high as possible. Appellant complains of threequestions asked by the prosecutorof

a police detective. Each of the threequestions could have been objected 

### to as hearsay, yet defense counsel made no objections. The questions focused on statementsmade by Dave Richardson concerning the fake VIN plate. Appellant contends that defensecounsel should not have let this testimony in. Yet, in another specification of alleged 

### error

### , appellant criticizes trial coun

### sel for a perceived failure to cross-examine Richardson concerninghisquestionable actions inobtaining the fakeVIN plate. Appellant 

### sees error both ways, first for letting the testimony in, and then fornot getting it in. Many other instances 

### are not 

### error at all 

### or deal with a question of tactics. Appellant 

### claims that defense counsel should have objected to the admission of several photographs of the stolen truck, yet he offers no possible grounds for the objection. Appellant fails 

### to recognize that the photographs



### were useful; his witnesses viewed the photographs and testified thattheydid not represent thepickup thatdefendant transferred to Richardson. Also, in connection with the photographs; appellant claims thatan excellentopportunitywas missed to voir direChuck Plant concerning the identity of the vehicle since it had been missing forover a year and since it 

### was onlyonPlant's 

### lot for a couple of weeks. Wedo not see a missed opportunity; rather, 

### we see wise restraint on the part of defense counsel. Plant testified that he recognized his truck in the photographs because of 

### two distinctive features, homemade mud£laps and body damage on the door. A challenge of Plant on these points could have been detrimental 

### to defendant, not beneficial

# . Appellant lists several individuals who should have been called as witnesses by defense counsel. Supposedly, these individuals had additional and 

### material in£ormation. It 

### was partly

on thebasis of affidavits from these people thatappellantmoved for a new trial on the grounds of newly-discovered evidence. In denying a new trial, the court considered the information in these affidavits as either cumulative, not probative 

### or not 

### material. Severalother alleged 

### errors are discussed by appellant, none of which deserve discussion. These iqclude: error of defense counsel for reserving his opening statement until the 

### close ofthe state's case failure 

### to object to prosecutorial comments during opening statement that defendant was guilty; several missed objections to leading questions and questions calling for hearsay; error of defense counsel for referring to the 1963 GMC

as a 1964 model; failure of defense counsel to offer a jury instruction on defendant's "theory of the 

### case

## ,"yet appellant does not suggestwhat mighthave beenoffered; failureof defense counsel toobject to prosecutorial statementson closing argument vouching for the truthfulnessof Dave Richardson; and failure of defensecounsel 

### to explainthe concept of reasonable doubt 

### to the jury. Where ineffective assistance of counsel 

### is claimed, the defendant must show 

### error of counsel stemming from neglect 

### or ignorance and resulting inprejudice 

### to the defendant. Statev. Morigeau (1982), - Mon

### t

# . -. 

## ,656 P.2d 185, 39 St.Rep. 2311. We 

### see no 

### error, singly

### or cumulatively, which prejudiced defendant. The assertion of ineffective assistance of counsel is a serious charge. An attorney's reputation 

### is his 

### most prized possession. Appellate counsel might have conducted the trial differently, however, "the fact that 

### some other lawyer

# . . .would have done differently

# . . . is no ground for branding the appointed attorney with the opprobrium of ineffectiveness, 

### or in£idelity, 

### or incompetency

# . . . As no 

### two men can be exactly alike in the practice of the profession

### ,it is basicallyunreasonable tojudge an attorney by what another would have done, or says he would have done, in the ,better light of hindsight." State v. Lopez (198O),

I -- Mont

# . 605 P.2d 178, 180-81, 37-St.~ep. 3%,-38-9-. (CitingWilliamsv. Beto (5thCir. 1965),354F.2d 698, 706.) Our following comments are not intended to discourage valid and substantiated assertions of ineffective assistance of coun

### sel. The right 

### to effective assistance of counsel 

### is guaranteed by the United States Constitution and this State's Constitution. Statev. Rose, supra. An attorneywould be 

### remiss inhisduties if he fails to act when he reasonably believes his client isdenied this right. However, in this case, appellate counsel attempted 

### to manufacture an issue. His argument is not only frivolous, it 

### is based in part on blatant misstatements of the record. Such actionswillnot be tolerated. Counsel is reminded of DisciplinaryRules 7-102(A)(2) and (5)which state: "In his representation of a client, a lawyer shallnot:

"(2) knowingly advance a 

### claim or defense that is unwarranted under existing

### law;

"(5) knowingly make a false statement of 

### law 

### or fact. Canons of Professional Ethics, 160 Mont. xxiii, xliv." Finally, 

### we consider a 

### matter raised in appellant's reply brief. Appellant reasserts his ineffective assistance

### of counsel argument in view of an exhibit contained in respondent's brief. Appellant claims that exhibit 3 of respondent's brief 

### is "proof positive that the Appellant, Kevin Hall, did not receive effective assistance of counsel at his trial and his conviction -- must be reversed.

### " Exhibit 3 is an affidavit signed by defense counsel, stating that "Kevin D. Halladvised affiant thatHallreceived the truck from one Pete Peterson.I1 Furthermore, defense counsel states he traveled 

### to the Montana State Prison to interview Peterson who



### was serving time for forgery. Apparently, Peterson tolddefense counsel thathe knew nothing of the black 1964Chevrolet. Respondent included this exhibit to counter arguments by appellant thatPeterson should have been called as a witness; and since he 

### was not called, it helped illustrate ineffective assistance of counsel. Appellant urges that defense counsel violated the Canons of ProfessionalEthicsby failing to preserve the confidences and secrets of a client. We refuse to consider the exhibit and the assertions of appellant. They 

### are not 

### relevant 

### to the issues raised on appeal, nor 

### are they part of the record. 

### We will not tolerate attempts 

### to introduce extraneousinformation by attaching appendices to briefs. Farmers State Bank of Conrad v. Iverson and Bouma (1973), 162 Mont. 130, 509

A£firmed

# .



# .

Weconcur: