No. 13031 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

-- 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

DANIEL E. McELVEEN, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Edward Dussault , Judge presiding. 

Counsel of Record: 

For Appellant : 

Donald W. Molloy, Law Student, argued, Missoula, Montana 

David J. Patterson appeared, Missoula, Montana 

For Respondent : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

John F. North appeared, Assistant Attorney General, 

Helena, Montana 

Richard P. Heinz, County Attorney, argued, Polson, 

Montana 

Submitted: November 5, 1975 

DecidedEC + 3 0 19% 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is a petition for post-conviction relief from a 

conviction and sentence of four years in the state prison on 

a charge of felony theft in the district court, Lake County. 

Petitioner was tried on one count of felony theft based 

on an information filed February 13, 1975, charging petitioner 

with purposely or knowingly obtaining or exerting unauthorized 

control over three trailer house tires and rims, valued at more 

than $150, with the purpose of depriving the owner thereof. 

Petitioner had a court appointed counsel for the jury 

trial. Prior to, during, and after the trial, petitioner claimed 

his appointed counsel inadequately represented him at all times 

in question. The appointed counsel motioned to withdraw as 

attorney of record subsequent to the conviction and sentencing, 

this motion was granted by the district court. -The Montana Defender Project brought this petition on behalf of petitioner. 

The issue raised by this petition is whether petitioner 

received adequate representation by his court-appointed attorney 

both in preparation and investigation for trial, as well as at 

the trial. 

In State v. Blakeslee, 131 Mont. 47, 54, 306 P.2d 1103, 

this Court stated the fundamental principle: 

"This defendant may be as guilty as ever felon 

not hanged. He is nevertheless entitled to a 

trial consistent with our Constitution and Codes. * * *'I 

The right to counsel is expressly recognized in the constitutions of the United States and the State of Montana. The 

Sixth Amendment to the United States Constitution provides: 

"In all criminal prosecutions the accused shall 

enjoy the right to a speedy and public trial * * * 

and to have the assistance of counsel for his 

defense. " 

This concept has been held applicable to the states by virtue 
of the due process clause of the Fourteenth Amendment to the 

United States Constitution. Gideon v. Wainwright, 372 U.S. 

In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 

L ed 1461, 1465, Mr. Justice Black said of the Sixth Amendment 

protections: 

" * * * The Sixth Amendment stands as a constant 

admonition that if the constitutional safeguards 

it provides be lost, justice will not 'still be 

done.' It embodies a realistic recognition of 

the obvious truth that the average defendant does 

not have the professional legal skill to protect 

himself when brought before a tribunal with power 

to take his life or liberty, wherein the prosecution is presented by experienced and learned 

Counsel. " 

Not only is the assistance of counsel " * * * often requisite 

to the very existence of a fair trial", Argersinger v. Hamlin, 

407 U.S. 25, 92 S.Ct. 2006, 32 L ed 2d 530, 535, but such assistance must be effective. The Ninth Circuit Court of Appeals 

has recognized the right to effective counsel in Wilson v. Rose, 

366 F.2d 611, 616: 

" * * * In short, effective assistance of counsel 

is guaranteed by the Sixth and Fourteenth Amendments because it is 'essential to a fair trial'." 

The right to counsel has always been a part of Montana 

constitutional law. Article 111, S16, 1889 Montana ~onstitution, 

provides : 

"In all criminal prosecutions the accused shall 

have the right to appear and defend in person and 

by counsel * * *." 

Article 11, S24, 1972 Montana Constitution, contains the same 

language, thereby continuing the protection. This language has 

been interpreted by this Court to encompass effective assistance 

of counsel. State v. Bubnash, 139 Mont. 517, 366 P.2d 155. 

Although petitioner was represented by court-appointed 

counsel, a question remains as to whether the assistance was 

effective, so as to ensure a fair trial. As the Alaska Supreme 

Court said in Risher v. State, 523 P.2d 421, 423: 
" * * * The mere fact that counsel represents an 

accused does not assure this constitutionallyguaranteed assistance. The assistance must be 

'effective1 to be of any value." 

See,also, Wilson, supra. 

The Third Circuit Court of Appeals has said in 

Moore v. United States, 432 F.2d 730, 735: 

"The adequacy of the representation which petitioner received, which is the real issue in this 

case, can only be decided on an evaluation of the 

services rendered on his behalf. * * *" 

To determine the adequacy of the representation, we must look 

at the services rendered by appointed counsel in the context of 

the reasoning set forth by Justice John C. Harrison in State v. 

Forsness, 159 Mont. 105, 110, 495 P.2d 176: 

"Claimed inadequacy of counsel must not be tested 

by a greater sophistication of appellate counsel, 

nor by that counsel's unrivaled opportunity .to 

study the record at leisure and cite different 

tactics of perhaps doubtful efficacy. Success 

is not the test of efficient counsel, frequently 

neither vigor, zeal, nor skill can overcome the 

truth. 'I 

Some tactic must be employed at the trial and some course must 

be designed or formulated for the defense, from the time of 

counsel's appointment to represent a defendant until a final 

adjudication of the matter. The tactics employed, lack of 

tactics, will be dealt with below. 

This Court has recognized the test against which claims 

of inadequacy of counsel are considered that has been adopted in 

a majority of other jurisdictions. State v. Noller, 142 Mont. 

35, 37, 381 P.2d 293. The test, known as the "farce and sham 

test", is set out by the Fifth Circuit Court of Appeals in 

Williams v. Beto, 354 F.2d 698, 704: 

"It is the general rule that relief from a final 

conviction on the ground of incompetent or ineffective counsel will be granted only when the trial 

was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or 

the purported representation was only perfunctory, 
in bad faith, a sham, a pretense, or without 

adequate opportunity for conference or preparation." 

In considering a question of the adequacy of a defendant's representation by counsel, this Court in Noller quoted 

50 

the California case of People v. WeinI/cal.2d 383, 326 P.2d 457, 

for the proposition that: 

" * * *The handling of the defense by counsel of 

the accused's own choice will not be declared 

inadequate except in those rare cases where his 

counsel displays such a lack of diligence and 

competence as to reduce the trial to a 'farce 

or a sham' * * *." 

This Court went on to say in Noller at p. 38: 

"Evidently the distinction, if any there is, 

between cases involving representation by retained or court-appointed counsel, has been 

ignored in applying the aforementioned rule. * * *" 

And then noted in Noller: 

" * * * Hindsight cannot now be used to say what 

perhaps could have been done to achieve a possible 

but highly speculative result. * * *" 

but if the record were not one which might be termed "open and 

shut", such speculation would not be inappropriate. Williams, supra. 

The record in the instant case contains facts analogous 

to the reasons expressed in the landmark United States Supreme 

Court decision of Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 

77 L ed 158, 170, wherein the court said: 

" * * * The right to be heard would be, in many 

cases, of little avail if it did not comprehend 

the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged 

with crime, he is incapable, generally, of determining for himself whether the indictment is good 

or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may 

be put on trial without proper charge, and convicted upon incompetent evidence, or evidence 

irrelevant to the issue or otherwise inadmissible. 

He lacks both the skill and knowledge adequately 

to prepare his defense, even though he have a 

perfect one. He requires the guiding hand of 

counsel at every step in the proceedings against 

him. Without it, though he be not guilty, he faces 

the danger of conviction because he does not know 

how to establish his innocence." 
It is well established in Moore v. ~ichigan, 355 U.S. 155, 

78 S.Ct. 191, 2 L ed 2d 167, 171, that: 

" * * * The right to counsel is not a right 

confined to representation during the trial on 

merits. * * *" 

In order to represent a defendant adequately, it is necessary 

that counsel prepare for trial by attempting to discover all 

the facts and circumstances of the crime, including investigating 

eyewitness accounts, as such investigation will inevitably affect 

the course of action followed in advising and defending the accused. 

In the instant case the record shows there was little, 

if any, attempt by appointed counsel to substantiate petitioner's 

version of what transpired on the day during which the theft 

occurred. Nor was there an investigation of the police report 

as related by the State's principal witness to ascertain its 

accuracy. Although a possibility exists that such an investigation could only be inimical to petitioner's position, it is incumbent on counsel to make a thorough investigation of the persons 

and events involved in the crime. 

As the Third Circuit said in Moore v. united States, 

" * * * Adequate preparation for trial often may be 

a more important element in the effective assistance 

of counsel to which a defendant is entitled than the 

forensic skill exhibited in the courtroom. The careful investigation of a case and the thoughtful 

analysis of the information it yields may disclose 

evidence of which even the defendant is unaware 

and may suggest issues and tactics at trial which 

would otherwise not emerge. * * *" 

Due to the lack of a thorough investigation of the facts 

and circumstances surrounding the taking of the tires, we cannot determine whether any pretrial motions were potentially 

available to petitioner. No attempt was made to subpoena witnesses to verify petitioner's story to assist in the establishment 

of some defense, such as alibi, or to prove petitioner did not do 
the act with which he was charged. 

The United States Supreme Court stated at p. 165 in 

Powell : 

"It is not enough to assume that counsel thus 

precipitated into the case thought there was no 

defense and exercised their best judgment in 

proceeding to trial without preparation. Neither 

they nor the court could say what a prompt and 

thorough-going investigation might disclose as to 

the facts. * * *I1 

The United States District Court for the district of 

Montana has held the failure to make a pretrial motion to suppress 

as required under Montana law, and the refusal to subpoena alibi 

witnesses without attempting to investigate what they might know 

about the case, or their reliability, requirga finding that a defendant was without effective assistance of counsel. Application 

of Tomich, 221 F.Supp. 500, affirmed 332 F.2d 987. The United 

States District Court for the Northern District of Texas stated 

in Smotherman v. Beto, 276 F.Supp. 579, 588: 

" * * * The lawyer who does not probe, does not 

inquire, and does not seek out all the facts 

relevant to his client's cause is prepared to 

do little more than stand still at the time of 

trial. " 

The failure to object to improper evidence, standing 

alone, is not sufficient grounds to support a claim of inadequate 

representation, Hester v. United States, 303 F.2d 47 (10th Cir.), 

cert. denied 371 U.S. 847, 83 S.Ct. 80, 9 L ed 2d 82, but failure 

does provide support to substantiate such a claim. The Fifth 

Circuit Court of Appeals in Williams at p. 706 observed: 

"Court appointed counsel is no different to any 

other lawyer. He is still a lawyer, he is still 

practicing law, and he is no less confronted by 

difficult decisions of tactics and strategy. He 

cannot stand still and do nothing. That indeed 

might be the best evidence of incompetency or 

infidelity, or ineffectiveness, or all three. * * *" 

Only two objections were made by the defense during the 

course of the jury trial. One, which was sustained, was made 
by petitioner himself to the questions of the county attorney 

based on petitioner's past criminal record. The only objection 

made by petitioner's appointed counsel was during the State's 

presentation of its rebuttal case, this objection was sustained. 

Although this Court disallowed in Noller hindsight as 

a mechanism of assessing counsel's professional judgment and 

tactics employed at trial, the record reveals a pattern of 

presentation of evidence which is not consistent with the theory 

of the laws of evidence. The jury is composed of laymen, not 

versed in the sophistication of the laws of evidence, thus procedures have been developed for jury trials to place the burden 

on counsel to timely object to offered evidence before it is 

given to the jury. The presiding judge has the opportunity to 

decide whether or not the trier of fact should be allowed to 

hear the evidence. In this way much irrelevant, immaterial, and 

prejudicial testimony is kept from the province of the jury. 

When the course is not observed by counsel there is a great risk 

the defendant will not be found guilty of the crime for which 

he is charged, but guilt will be found due to some prior criminal 

record or some circumstances not relevant to the crime at hand. 

One of the bases for the necessity of representation by counsel 

is to insure a fair trial. Counsel's effectiveness is based on 

his knowledge and use of the laws of evidence. If the knowledge 

is not used, the defendant is in little better position than if 

he were to defend himself. 

More important than petitioner's guilt or innocence in 

this case is the burden of whether or not the conviction received 

was obtained fairly and in accordance with federal and state 

constitutional principles. 

The right to a fair trial encompasses the right to counsel, 

but the right to counsel would be illusory if it did not entail 
the right to the effective assistance of counsel. The federal 

court in Smotherman at p. 586 said: 

"Adequate representation in a criminal proceeding is the cumulative act of affording the defendant an adequate defense. Defense attorneys 

are called upon to apply their knowledge, experience and talents to a given set of facts and to 

derive from such fusion a defense which the Sixth 

Amendment requires to be adequate, not miraculous. 

When the adequacy of a defense rendered by an 

attorney is subjected to attack, the relevant 

consideration is not whether the case was lost 

where it could have been won, but whether counsel 

'stood still and did nothing', [citation omitted] 

to the extent that his representation failed to 

render reasonably effective assistance to the 

accused. [citations omitted] When appearance of 

counsel takes on the cloak of pro forma rather 

than that of zeal and action, the defendant has 

not had his day in court." 

The record before us in this case indicates that the 

conduct of this trial by court appointed counsel deprived petitioner of effective representation. Therefore, we grant petitioner's petition for post-conviction relief, ordering the district 

court to set aside the convic 

/' Chief Justice 

/- 

/ We concur: 

----me--------------------------- 

Justices 
Mr. Justice Wesley Castles and Mr. Justice John Conway Harrison 

dissenting: 

We dissent. 

Although we do not disagree with any of the law stated 

in the majority opinion, we disagree on the facts of the 

representation. 

The defendant, here, is a "stir-wise" individual with 

ten pages of "rap sheet" showing numerous arrests and convictions in many states of the nation. By his own claim he has 

attended law schools and studied law and is a self-styled cell 

block lawyer. His guilt in the instant case is clear beyond 

any possible doubt. The background of this case indicates to 

us that he had planned an appeal based upon "incompetence" of 

counsel even before his trial. The affidavit of defense counsel 

shows that the defendant never told a consistent story to his 

own counsel, gave him no facts, ignored counsel's advice, gave 

him handwritten directions on how to handle the trial, and 

presented an impossible defense situation. Counsel should be 

commended for trying to defend him as well as he could. The 

handwritten directions mentioned are a classic "Dick Tracy" 

comic strip diatribe. 

Faced with an impossible defense posture, counsel 

should not be criticized nor should the defendant have a new 

trial.