Yo. 82-232 

IN THE SUPREME COURT OF TEE STATE OF MONTANA 

1983 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsKEVIN D. HALL, 

Defendant and Appellant. 

Aspeal from: District Court of the Eighth Judicial District, 

In and for the County 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 

Submitted on Briefs: March 17, 1983 

Decided: MaY 51 1983 

Filed: MAY 5 - 1983 

-- 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Kevin Hall was charged with the crime of felony theft in the 

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 or knowingly used, concealed or abandoned the property 

in such 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 defendant pled not 

guilty and 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 ten years 

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 written motion and the notice of appeal were 

filed on that same day. The court denied the stay of execution, 

and defendant was sent to the state prison at Deer 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 findings of fact and conclusions of law and denied defendant's motion 
for a new trial. In effect, the court ruled that there was no 

new evidence on 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 effective assistance 

of counsel at trial. We have carefully reviewed the record and 

find no merit in appellant's contentions, therefore the District 

Court Is judgment and sentence is a f f irmed . On or about November 13, 1980, a black-colored 1964 Chevrolet 

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 police officer contacted Mrs. Fladstol 

concerning the license plate. Mrs. Fladstol showed the officer a 

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 in an 

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 

license plate on the vehicle. The officer did not notice whether 

the vehicle had a rear license plate. 

At this point, the police were confused. They had received a 

report that a stolen 1964 Chevrolet pickup was seen bearing the 

same license plate number as a 1963 GMC pickup which had recently 
been involved in an accident. The police thought that Thody 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 contacted Chuck Plant who positively identified the truck as the one 

that was stolen from his used car lot. The police then impounded 

the vehicle. 

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 at the 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 that he should remove the license 

plate and throw it away, and that he should disguise the truck by 

painting it with gray primer paint because the truck was stolen. 

It was after learning these things that Richardson 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 another pickup, a 1962 Chevrolet half-ton. Concerning 

the license plate, defendant contends that Richardson must have 
removed the plate from the 1963 GMC when it had been towed to a 

wrecking yard after the accident. He further admits that he contacted Richardson, not to tell him the truck was stolen, but to 

question him about the license plate that he suspected Richardson 

had taken. 

The jury did not believe defendant's version of the facts and 

returned a verdict of guilty. Defendant argues that the verdict 

is not supported by substantial evidence. We disagree. 

In determining whether substantial evidence exists to support 

the verdict, we will view the evidence in a light most favorable 

to the prevailing party. The evidence may be inherently weak and 

it may conflict with other evidence yet still be deemed substantial. Gunnels v. Hoyt (1981), Mont . , 633 P.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 1964 Chevrolet without a 

title and without keys. Also, upon learning that the 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 that he 

did not know the truck was stolen until after the defendant told 

him so. 

Regardless of Richardson's actions, conclusions drawn about 

his veracity are questions for the jury. As we said in -- Gunnels, - - 

-- -- Mont. at - , 633 P.2d at 1191, 38 St.Rep. at 1495, where 

the record contains con£ lict ing evidence, " the credibility and 

weight given to such conflicting evidence is the province of the 

jury and not this Court ." 

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 that the pickup was stolen and that he (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 to Richardson 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 

dealt with in turn. 

We find it difficult to imagine how the court could deny the 

motion without exercising discretion. Appellant cites the 

following comment by the District Court judge: 

"Well, I have some personal doubts in my 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 full credit is 

sufficient for the proof 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 limits of its discretion. As we said in Lyndes 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. ' (citation omitted ) Neither may 

a District Court grant a new trial only on the basis that it chose 
to believe one line of testimony different from that which the 

jury believed." The judge's comments only reflect an awareness 

of the above principles. 

Next, we consider appellant's contention that the court 

failed to specify reasons for denial of the motion. Appellant 

assumes that such reasons are required. We are cited to State v. 

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 this may be done in the body of the 

order, or in an attached opinion." Williams holds that reasons - - - - 

must be stated when granting a new trial, it does not hold as 

such when a court denies a motion for new trial. 

Even if appellant's reading of Williams were correct, his - 

argument would not persuade this Court. The district judge did 

state his reasons for denial of the motion. It is evident from 

the judge's comments cited above that he deferred to the jury as 

the finder of fact; in effect, ruling that substantial evidence 

existed to support 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 

the many "errors and omissions." 

We have recognized that the claim of ineffective assistance 

of counsel may be predicated upon the cumulative effect of representation. In State v. McElveen (1975), 168 Mont. 500, 509, 544 

P.2d 820, 824, we stated: "'[aldequate representation in a 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 his argument, appellant alleges 

more than thirty instances of error. We have carefully reviewed 

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 . - - .- .- Mon t . - - .. , 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 in criminal cases. " 

Appellant's claim is groundless. We are disturbed and irritated by what is an unfounded attack on the competence of trial 

counsel. It is obvious that appellate 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 

with Defendant's witnesses and prepare them for this trial . . ." 

In other words, appellant would have us believe that defense 

counsel failed to interview his own witnesses prior to trial, and 

even admitted it to the jury. This is not so. Defense counsel 

was attempting to explain inconsistencies in the testimony of his 
witnesses. He stated, "I didn'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 clearly an effort to mislead this Court. 

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 at the 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 that defense 

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 off icer's 

testimony. Again, this is an effort to mislead this Court. 

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 three questions asked by the prosecutor of 

a police detective. Each of the three questions could have been 

objected to as hearsay, yet defense counsel made no objections. 

The questions focused on statements made by Dave Richardson concerning the fake VIN plate. Appellant contends that defense 
counsel should not have let this testimony in. Yet, in another 

specification of alleged error , appellant criticizes trial counsel for a perceived failure to cross-examine Richardson concerning his questionable actions in obtaining the fake VIN plate. 

Appellant sees error both ways, first for letting the testimony 

in, and then for not 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 

that they did not represent the pickup that defendant transferred 

to Richardson. Also, in connect ion with the photographs; 

appellant claims that an excellent opportunity was missed to voir 

dire Chuck Plant concerning the identity of the vehicle since it 

had been missing for over a year and since it was only on Plant's 

lot for a couple of weeks. We do 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 the basis of aff idavits from these people that appellant moved 

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. 

Several other 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 of 
the 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 suggest what might have been offered; failure of defense 

counsel to object to prosecutorial statements on closing argument 

vouching for the truthfulness of Dave Richardson; and failure of 

defense counsel to explain the 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 in prejudice to the defendant. State v. 

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 prof ession , it is basically unreasonable to judge 

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-. (Citing Williams v. Beto 

(5th Cir. 1965), 354 F.2d 698, 706.) 

Our following comments are not intended to discourage valid 

and substantiated assertions of ineffective assistance of counsel. The right to effective assistance of counsel is guaranteed 

by the United States Constitution and this State's Constitution. 

State v. Rose, supra. An attorney would be remiss in his duties 

if he fails to act when he reasonably believes his client is 
denied 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 actions will not be tolerated. Counsel is reminded 

of Disciplinary Rules 7-102(A)(2) and (5) which state: 

"In his representation of a client, a lawyer 

shall not: 

"(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 ef fective 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. Hall advised af f iant that Hall received 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 told defense 

counsel that he knew nothing of the black 1964 Chevrolet. 

Respondent included this exhibit to counter arguments by 

appellant that Peterson 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 Professional Ethics by 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 extraneous 
information by attaching appendices to briefs. Farmers State 

Bank of Conrad v. Iverson and Bouma (1973), 162 Mont. 130, 509 

A£ f irmed . . 

We concur: