NO. 89-314 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJAMES D. COATES, 

Defendant and Appellant. 

APPEAL FROM: ~istrict Court of the Fourth ~udicial ~istrict, 

In and for the County of Missoula, 

The Honorable Douglas arki in, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

 art in John Elison, ~ardin, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Jennifer Anders, Asst. Atty. General, Helena 

Robert L. Deschamps, 111; Betty wing, Deputy, iss sou la, 

Montana 

-- --- 

Submitted on ~riefs: Dec. 14, 1989 

Decided: February 14, 1990 
Justice John Conway Harrison delivered the Opinion of the Court. 

James Coates appeals an order of the Fourth Judicial District, 

Missoula County, Montana, denying Mr. Coatesl petition for postconviction relief. We affirm. 

Appellant raises three issues for review: 

1. Was appellant denied an evidentiary hearing on his 

petition for post-conviction relief? 

2. Was the hearing the appellant received a full and fair 

hearing? 

3. id the ~istrict Court err in finding that appellant had 

not been denied effective assistance of counsel and thus err in 

denying the petition for post-conviction relief? 

Following a jury trial, appellant was convicted of four counts 

of felony theft on May 1, 1987. At trial, Bernard J. Goldman 

represented appellant. Mr. Goldman also handled Mr. Coatesl appeal 

to this Court. 

On September 2, 1988, pursuant to 5 46-21-201, MCA, 

appellantls new counsel filed a petition for post-conviction relief 

that alleged appellant was denied effective assistance of counsel 

at trial. Specifically, appellant cited eight alleged errors 

committed by Mr. Goldman. The parties filed briefs and the 

District Court held a hearing on December 12, 1988. During the 

hearing, appellant presented a witness on his behalf and testified 

2 
himself. The State called as a witness the deputy county attorney 

who prosecuted appellant. 

At the end of the hearing, the District Judge added to the 

record his observations regarding Mr. Goldman's conduct during 

appellant's trial. Neither the appellant nor the State objected 

to the Judge's comments and both counsel asked the Judge questions. 

On January 13, 1989, the District Court issued findings of fact and 

conclusions of law denying appellant's request for post-conviction 

relief. The District Court found that Mr. Goldman's alleged errors 

were in the main tactical decisions, that another lawyer could not 

have obtained a better result, and that Mr. Goldman had not 

ineffectively represented appellant. 

Appellant contends that the District Court erred in not 

granting appellant an evidentiary hearing in which to present proof 

regarding his allegations of ineffective assistance of counsel. 

Appellant's argument belies the record. Section 46-21-201, MCA, 

details the procedure relating to a petition for post-conviction 

relief and provides in part as follows: 

46-21-201. Proceedings on the petition. 

(1) Unless the petition and the files and 

records of the case conclusively show that the 

petitioner is entitled to no relief, the court 

shall cause notice thereof to be served upon 

the county attorney in the county in which the 

conviction took place and the attorney general 

and order them to file a responsive pleading 
to the petition. Following its review of the 

responsive pleading, the court may dismiss the 

petition as a matter of law for failure to 

state a claim for relief or it may grant a 

prompt hearing thereon, determine the issue, 

and make findings of fact and conclusions with 

respect thereto. 

(2) The court may receive proof by affidavits, 

depositions, oral testimony, or other 

evidence. In its discretion the court may 

order the petitioner brought before the court 

for the hearing. 

The District Court granted appellant a hearing as outlined in 

5 46-21-201(1), MCA, and received evidence in the form of oral 

testimony and exhibits. The statute plainly contemplates that the 

hearing on a post-conviction petition will be to determine the 

issues raised in the petition. Nothing in the record supports 

appellant's argument that the hearing held was not such an 

evidentiary hearing. We reject appellant's argument. 

Appellant alleges that the District Court failed to give him 

a proper hearing because it ignored the rules of civil procedure 

and it made improper comments during the hearing. We disagree. 

A petition for post-conviction relief is civil in nature 

rather than criminal. Coleman v. State (Mont. 1981) , 633 P. 2d 624, 

627, 38 St.Rep. 1352, 1354. However, "district courts are not 

strictly bound by all the rules of civil proceduregg in postconviction relief hearings. State v. Perry (Mont. 1988), 758 P.2d 

268, 276, 45 St. Rep. 1192, 1201. As appellant neither cites any 
specific rules that the District Court violated nor cites any 

authority in support of his argument, we reject his contention. 

We hold that the District Court followed the procedures established 

by 5 46-21-201, MCA. 

Additionally, appellant argues that he did not receive a fair 

hearing because the District Judge made prejudicial remarks at the 

end of the hearing that indicated bias on the part of the Judge. 

The Judge's comments related to his observations of Mr. Goldman's 

conduct of appellant's trial. The critical inquiry is whether the 

Judge's remarks deprived appellant of a full and fair hearing. 

Perry, 758 P.2d at 275. We do not find that his remarks reflect 

bias and prevented appellant from receiving a full and fair 

hearing. 

Appellant frames his bias argument in generalizations. His 

argument appears to be that because the Judge articulated his 

observations regarding Mr. Goldman's trial conduct that the Judge 

was biased. In other words that the Judge's remarks indicate his 

unwillingness or inability to impartially consider appellant's 

evidence that Mr. Goldman ineffectively represented him. However, 

the mere fact that the Judge articulated his observations does not, 

without more, constitute bias and appellant has not buttressed his 

argument with anything specific. 

Petitions for post-conviction relief are directed to either 

this Court or to the presiding district court judge. The statute 

5 
specifies the presiding district judge precisely because that judge 

is familiar with the underlying criminal case. By directing the 

post-conviction relief petition to the presiding district judge, 

the judge who is most familiar with the conduct of the trial has 

the opportunity to correct any errors that occurred during the 

trial. See Coleman, 633 P.2d at 626-628. The fact that a judge 

is familiar with how counsel conducted a trial does not equal bias 

and in post-conviction relief hearings familiarity is considered 

a benefit. In particular, the presiding judge will have observed 

an attorney's handling of a trial in regard to general behavior, 

thoroughness of preparation, and effectiveness of case 

presentation. 

In the instant case, the Judge's remarks did not reflect any 

unwillingness to consider appellant's evidence regarding 

ineffective assistance of counsel. These remarks came at the end 

of the hearing after all evidence had been presented. The 

appellant does not allege that the Judge made any improper remarks 

as the parties presented their case nor does appellant allege that 

the Judge improperly excluded any evidence appellant offered. As 

well, appellant does not argue that the remarks indicated personal 

bias toward either Mr. Goldman or appellant. Additionally, the 

Judge's observations mirrored the testimony of the prosecuting 

attorney at appellant's trial. 

In contrast to the case at bar stands State v. Musgrove 

6 
(1980), 187 Mont. 549, 610 P.2d 710, where we found that the trial 

judge's comments indicated bias, or an unwillingness to consider 

evidence. In Musqrove, the defendant had failed to appear at trial 

on the day of closing arguments. The trial court ordered the 

insurance company's $50,000 bond forfeited. Shortly thereafter the 

defendant returned voluntarily and was convicted and sentenced. 

The insurance company moved the trial court for an order 

discharging the bond forfeiture on the grounds that the defendant's 

mental condition excused his failure to appear at trial. Although 

the trial court, after a hearing, did discharge $25,000 of the bond 

forfeiture, the insurance company appealed alleging in part that 

the trial judge had improperly excluded evidence of the defendant's 

mental condition. We found that the trial judge had improperly 

excluded evidence of the defendant's mental condition as well as 

improperly commented on the defendant's state of mind with the 

following remarks: 

THE COURT: Well, Mr. Delaney, there isn't any 

doubt in my mind as the judge who presided on 

the trial that at that particular time Mr. 

Musgrove knew the jury was going to find him 

guilty because the testimony was so obvious in 

that direction and the Instructions settled by 

the Court was [sic] so obvious in that 

direction. I know that he knew this was going 

to happen and I know that because of that he 

failed to show up the next day. There is no 

doubt in my mind that he was upset. I think 

I would have been. 

Musqrove, 610 P.2d at 712. We found that those statements 
indicated 

"bias which resulted in effectively denying the insurance company 

an opportunity to establish its case of excuse in order to 

exonerate the bond forfeiture." Musqrove, 610 P.2d at 712. We 

also noted that the trial judge's findings did not address the 

insurance company's contentions and evidence regarding excuse. 

Musqrove, 610 P.2d at 713. 

As mentioned above, we do not discern a similar bias or 

unwillingness to consider appellant's evidence in the instant case. 

The District Judge scheduled a hearing which he is not required to 

do if he finds the petition meritless. Section 46-21-201(1), MCA. 

Each party thoroughly briefed the issues, and each party presented 

evidence at the hearing. The Judge stated that he had considered 

all the testimony, evidence and briefs in making his decision and 

he wrote detailed findings of fact and conclusions of law that 

directly dealt with appellant's contentions. Moreover, we cannot 

say that the Judge's decision is not supported by substantial 

evidence. We hold that the Judge's remarks did not reflect bias 

and did not deprive appellant of a full and fair hearing. 

The standard of review for denial of post-conviction relief 

is whether substantial evidence supports the findings and 

conclusions of the district court. Yother v. State (1979), 182 
Mont. 351, 355, 597 P.2d 79, 82. Appellant argues that the 

District Court erred in failing to find that Mr. Goldman was an 

ineffective counsel. We disagree. 

In evaluating ineffective assistance of counsel claims, this 

Court utilizes a two-part test set forth in Strickland v. 

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. 

First, counsel's performance must be deficient. To assess 

deficient performance, this Court employs the lg'reasonably 

affective assistance' test of whether a defendant's counsel acted 

within the range of competence demanded of attorneys in criminal 

cases. (Citation omitted. ) 'I State v. Elliott (1986) , 221 Mont. 

174, 178, 717 P.2d 572, 575. Second, counsel's deficient 

performance must have so prejudiced the defendant as to deprive the 

defendant of a fair trial. State v. Leavens (1986) , 222 Mont. 473, 

475, 723 P.2d 236, 237. The standard for evaluating prejudice is 

whether a reasonable probability exists that but for counsel's 

deficient performance, the trial's outcome would have been 

different. Leavens, 723 P.2d at 237. However, in evaluating a 

defense counsel's performance, this Court will not second guess 

trial tactics and strategy. State v. LaValley (1983), 203 Mont. 

393, 397, 661 P.2d 869, 872. 

In his petition for post-conviction relief, appellant alleged 

the following eight specific errors by Mr. Goldman: 

1. Failure to object to the use of 

9 
statements made by defendant prior to reading 

defendant his Miranda warnings. 

2. Opening the door to testimony of a prior 

conviction. 

3. Failure to suppress evidence seized from 

the back of defendant's vehicle by challenging 

probable cause of the search warrant. 

4. Failure to obtain witnesses necessary for 

his defense. 

5. Improper preparation for trial. 

6. Failure to properly question witnesses. 

7. Failure to appeal certain issues. 

8. Mr. Goldman's drug abuse adversely 

affecting his ability to represent the 

defendant. 

As mentioned, all of these issues were thoroughly briefed by both 

parties prior to the hearing. 

Regarding allegations 1, 2, 3, and 7, the District Court's 

findings indicate that it found Mr. Goldman's decisions on these 

issues to be tactical. The District Court found and upon review 

we concur, that defendant likely would not have prevailed in trying 

to exclude the defendant's statements or in suppressing the 

evidence seized, either at the pretrial proceeding or on appeal. 

The District Court noted that Mr. Goldman's primary concern related 

to the identity of the informer and that he pressed that issue with 

vigor during pretrial proceedings and on appeal. 

As well, the District Court concluded that it was trial 
tactics that led Mr. Goldman to ask appellant on direct examination 

whether he had to have a background check to have a business 

license. On cross-examination, because the defense had "opened the 

door," the prosecuting attorney was able to elicit from appellant 

the fact of his prior theft conviction. However, as the 

prosecuting attorney testified, had she not caught Mr. Goldman's 

brief reference to appellant's background and followed up, Mr. 

Goldman would have had an excellent foundation for a closing 

argument. The evidence supports the conclusion that Mr. Goldman's 

decisions on allegations 1, 2, 3, and 7 were trial tactics and we 

will not second guess trial tactics. 

As to allegation number 4, failure to obtain two necessary 

witnesses, appellant does not demonstrate exactly how the absence 

of these witnesses prejudiced him. The record discloses that the 

County subpoenaed the two witnesses to no avail. Mr. Goldman 

apparently knew that these witnesses could not be located so any 

attempt on his part to subpoena them would have been futile. 

Further, appellant's argument does not specify exactly what 

testimony these witnesses would have given that would have assisted 

the defense. Without a showing of prejudice, appellant's argument 

fails. State v. Henricks (1983), 206 Mont. 469, 475-476, 672 P.2d 

20, 24. 

Regarding allegations 5 and 6, the record contains substantial 

evidence that, on the whole, Mr. Goldman was prepared for trial and 

11 
properly questioned witnesses. The prosecuting attorney testified 

that Mr. Goldman aggressively questioned witnesses and effectively 

brought out the defects in the State's case. She testified that 

his questions reflected his familiarity with the facts of the case 

and that his questioning elicited the information that he needed 

to establish the defense. Although appellant argues that Mr. 

Goldman should have asked certain questions, appellant again fails 

to establish exactly how those questions would have materially 

assisted his defense. 

Finally, as to allegation 8, the record discloses no specific 

evidence that Mr. Goldman's cocaine abuse, which has become public 

knowledge, rendered his conduct of appellant's trial incompetent. 

Most of appellant's argument on this issue relates back to the 

alleged errors already discussed. If those allegations had been 

found to reflect ineffective assistance of counsel, then one might 

infer that cocaine abuse may have been a contributing factor. 

However, absent any specific errors or conduct identified in the 

trial that affected the trial's outcome, Mr. Goldman's cocaine 

abuse is irrelevant to the issue of ineffective assistance of 

counsel. 

In summary, substantial evidence in the record supports the 

District Court's conclusion that another lawyer would not have 

obtained a more favorable result for appellant considering the 

amount of evidence the State presented against appellant. 
Appellant has failed to establish that Mr. Goldman's performance 

was deficient or that any of his alleged errors prejudiced the 

outcome of the trial. 

Affirmed. 

We concur: 
Justice John C. Sheehy, dissenting: 

It is provided in Rule 605, Montana Rules of Evidence: 

The judge presiding at the trial may not testify in that 

trial as a witness. No obiection need be made in order 

to preserve the point. (Emphasis added.) 

The statements made by the district judge at the hearing for 

post conviction relief were statements of fact, although he 

was an unsworn witness. Moreover, the district judge founded his 

findinqs of fact based on his own observations made at the hearing. 

This is what occurred in the post-conviction hearing, when the 

matter was before the ~istrict Court: 

THE COURT: Do you have any other witnesses to call? 

MS. WING: No witnesses. 

THE COURT: Rebuttal witnesses? 

MR. ELISON: None. 

THE COURT: Counsel, let me make some observations for 

the record. 

Obviously I am not an expert or even an amateur on how 

a person acts when they are under the influence of 

cocaine. However, I did make these observations of 

Bernie Goldman when he was here during the trial. 

I didn't see that he had any shakes or disruptive or 

mumbling speech. He had good eye contact. I didn't see 

any mood swings in the sense that one minute he would be 

very angry, the next he would be euphoric. When the 

prosecution witnesses were on, he was his usual abrasive 

self, as he has been for many years, but that Is how he 

does his cases, and generally with some good success and 

sometimes not. 

I noticed many discussions between the Defendant and Mr. 
Goldman during the trial, but I should point out that 

it's been my experience with Bernie Goldman when he goes 

to trial, he runs his own show and that it seems to be 

his policy that he does not allow his clients to run the 

trial. He kind of decides how he is going to run the 

case and then he proceeds from there. 

It s also been my experience with Mr. Goldman, and seemed 

to be his practice here, is that he will--he is quite 

clever about his trial tactics and his tactics here were 

consistent with that, for example, when he attempted to 

just very briefly passing mention the fact that the 

Defendant had to be--had a background check or get 

checked in order to have a license. I am sure he would 

have referred to this in his closing argument and, of 

course, the State seized on that as opening some 

information in regards to the Defendant's background. 

If the State had not been alert, that would have slipped 

on through and the jury would have been left with the 

impression brought out by Goldman's final argument that 

the Defendant was a model citizen as far as his business 

license is concerned. 

It seemed to me the gist of Goldman's case that he was 

primarily concerned with the informer and he pressed that 

hard at all the pretrial proceedings and obviously he 

pressed it on appeal. And I got the impression that he 

knew the case was--and I will use it in quotes, Ifin 

tr~uble,~~ as far as the search was concerned and the 

statements that may have been made by the Defendant. 

And in conclusion, Counsel, I am of the opinion that 

another result would not have occurred if he would have 

had another lawyer. I think that another lawyer would 

not have been able to obtain him a more favorable result. 

It is possible, but I don't think so under the amount of 

evidence that the State marshalled against the Defendant 

in this case. 

Those are just, for the record, those are the 

observations that I made while we had the trial. 

I have examined the briefs that have been submitted in 

the case as well as the evidence presented here at the 

trial, and I do not feel that Mr. Goldman was an 

ineffective counsel. His decisions in many cases were 

tactical decisions that we may or may not agree with. 

I think he took the approach that to--the approach being 

not to spend a lot of time with issues that were obvious 

losers and went ahead into--to press on the one issue 

where he thought that he knew if he could require--get 
me to require the State to identify the informer, that 

the State's case would collapse completely. And that 

seemed to be the gist of his case at the beginning and 

then during the trial, to attack the credibility of the 

State's witnesses during the trial itself. 

My conclusion, Counsel, is that your motion should be 

denied and it is so ordered. 

MS. WING: Your Honor, might I inquire, you have made 

some observations about Mr. Goldman and I wonder if you 

would mind putting something on the record of your years 

of experience with him or how long he has practiced in 

front of you. 

THE COURT: I have--as County Attorney I have had several 

cases against him and his father and eight years now of 

trials involving Mr. Goldman. And some of which he has 

been successful, but I didn't see anything different in 

his behavior and actions in this trial from other ones. 

I don't always agree with the way that Mr. Goldman tries 

his cases, but you can't argue with success and he has 

in my court several very good successes, but this was not 

one of them. 

MR. ELISON: Regarding the Supreme Court opinion, how 

long do I have to get that to you? Tomorrow? Or is that 

not going to bear on the case at this point? 

THE COURT: Well, I have their opinion. 

MR. ELISON: Oh, okay--no, I mean the one in which Bernie 

was disbarred. 

THE COURT: Oh. I have a sense of what that is and I 

testified--no, it was not this case. I was aware of some 

of the allegations against him and so I have a pretty 

good idea what the circumstances were. It's largely of 

his cocaine use, but like I said, Counsel, I have to 

admit that my expertise on cocaine users and how they 

behave in court is nonexistent, but he didn't seem--he 

didn't seem to be out of the norm for Bernie. And there 

were not occasions where I would talk to him and he would 

be like--would be spaced out or not understanding what 

I am saying, you know. And so he seemed to be tracking 

well at the trial and all I can say is he made some 

tactical decisions and some worked and some didn't work. 

MR. ELISON: I suppose I could have used an expert 

witness on what an addict on cocaine would act like? 

THE COURT: Well, tell me-- 
MR. ELISON: I don't think there would be any 

particularly noticeable thing. It's going to be--it is 

going to be mostly--it Is a speed, so it Is an upper and 

would make him more--it actually might make him more 

productive on occasions, but it is also kind of a mind 

scrambler and so he will forget things. He will think 

that he is doing something that he really, really isn't 

successfully doing. He will forget what has happened a 

day or two before. And probably when he leaves, he won' t 

get much sleep and it will throw his thinking off, but 

I suppose if there are no tactical errors or errors in 

the transcript that you can see-- 

THE COURT: Well, I wouldn't say that he--well, you know 

that thing about the--Mr. Coates' background check, 

that's not an error. That's a classic Bernie Goldman, 

I hate to say, maneuver, but it is a maneuver and he 

almost slipped that thing through and he just ran it 

through very quickly and had the State not picked up on 

that, he would have had an outstanding base for a closing 

argument. That's a classic Bernie Goldman maneuver. So 

I am not going to say it was wrong to do that. He might 

have gotten it by, if the County Attorney would not have 

been attentive at that point it would have been in. And 

that's how Bernie tries his cases and he is frequently 

successful. 

MR. ELISON: So, in other words, it is not a mistake? 

THE COURT: I don't think it was a mistake. I think it 

was purposeful on Bernie's part, quite frankly, because 

I have seen him do things before. So that's my ruling, 

Counsel. 

Would you make an appropriate order reflecting my ruling? 

MS. WING: I will. 

Because of Rule 605, M.R.Evid., the District Court was 

incompetent as a witness to testify as to his observations, sworn 

or unsworn, of the activities of counsel for the defendant during 

the District Court trial. If the District Court intended to be a 

witness, it should have been proper procedure to call in another 

district judge in order to hear the petition for post-conviction 
relief. 

The point that the District Court made observations of fact 

as a witness is buttressed by the findings of fact made by the same 

judge which appear to be completely founded on the court's own 

observations. Witness: 

Findinqs of Fact 

1. The court observed no signs of Mr. Goldman being under the 

influence of drugs. There were no shakes or disruptive or 

mumbling speech. He had good eye contact. There were no mood 

swings in the sense that one minute he would be very angry, 

the next he would be euphoric. When the prosecution witnesses 

were testifying, he was his usual abrasive self as he has been 

for many years. His style has generally had some good success 

and sometimes not. 

2. Mr. Goldman held many discussions with the Defendant 

during the trial. It has been the Court's experience, 

however, that when Bernie Goldman goes to trial, it seems to 

be his policy that he controls the case and does not allow his 

clients to run the trial. 

3. It has been the court's experience that it is Mr. 

Goldman's practice to be clever with his trial tactics, and 

his tactics in this case were consistent. For example, he 

attempted to very briefly in passing mention the fact that the 

Defendant had to have a background check in order to obtain 

a business license. He surely would have referred to this in 

his closing argument. If the State had not been alert, the 

information would have slipped on through and the jury would 

have been left with the impression that the Defendant was a 

model citizen. The State, however, seized on that as opening 

the testimony for information in regards to the Defendant's 

background. 

The duty of a judge to conduct an impartial trial is 

illustrated in the following paragraph: 

The trial judge must strive to have the trial conducted 

in an atmosphere of impartiality. His conduct in trying 

a case must be fair to both sides, and he should refrain 

from remarks that may injure a litigant. He should not 

engage in conduct which amounts to acting as counsel for 

one of the parties. Except where authorized by statute, 

it is improper for a judge to assume the role of the 

witness in a case being tried before him, and doing so 
constitutes reversible error. How great a departure from 

fairness amounts to reversible error is determined by the 

answer to the fundamental inquiry whether or not was done 

was prejudicial to the appellant or plaintiff in error. 

75 Am.Jur.2d 191, Trial, 5 87. 

Rule 605 of the Montana Rules of Evidence is based upon its 

federal counterpart. Moore points out that the rule provides an 

llautomatic objection" because to require an actual objection would 

confront the opponent with a choice of not objecting with the 

result of allowing the testimony, and objecting, with the probable 

result of excluding the testimony, but at the price of continuing 

the trial before a judge likely to feel that his integrity had been 

attacked by the objector. 10 Moore's Federal Practice, (2d ed. 

1976), 605.01[3]. 

Two of the dangers pointed out by Moore in having the judge 

testify at the trial over which he is presiding are (1) who will 

rule on objections, claims of privilege and other matters normally 

under judicial control, and (2) in a bench trial the judge who 

testifies will have to consider his own testimony in the light of 

other testimony in the case. 

In adopting findings of fact in the case at bar, the district 

judge weighed his own testimony as observations against the 

evidence adduced by the defendant and based his findings of fact 

upon his own observations, thus rejecting the evidence and 

testimony of the defendant. 

Moreover, both the District Court and the majority state as 

a fact in their Opinion that a new trial for the defendant would 
not end in a different result. Aside from it being sheer 

speculation, the probable future result of a fair trial should have 

no weight in considering whether a defendant receive a fair trial 

before an impartial tribunal in the former proceedings. The only 

question we should decide upon a petition for post-conviction 

relief is whether the defendant's sentence is subject to collateral 

attack upon any ground of alleged error available under a writ of 

habeas corpus. Section 46-21-101, MCA. Those grounds do not 

include the possibility that in a new trial the defendant will be 

reconvicted. 

For the reasons foregoing, I would remand for a new hearing 

on post-conviction relief before another district judge. Nothing 

would then preclude the present district judge from appearing as 

a witness to present his observations, which of course would be 

pertinent to the issues in this case. 

(?Ah i, ~~/

Justice