No. 13240 

IN THE SUPREME COURT OF TI-1E STATE OF MONTANA 

1976 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VS - 

RICHARD ELLIOTT BROOKS, 

Defendant and Appellant. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellant: 

William E. Gilbert argued, Bozeman, Montana 

For Respondent: 

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

Montana 

FJilliam J. Anderson, Assistant Attorney General, 

argued, Helena, Montana 

Donald E. White argued, County Attorney, Bozeman, 

Montana 

Submitted : September 2, 1976 

Decided : 8EP 2 4 1976 

Filed : 

2 4 1976 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an appeal by the defendant from a judgment of 

conviction of aggravated assault entered upon a jury verdict 

in the district court of Gallatin County. 

Defendant was charged September 2, 1975, with aggravated 

assault, a violation of section 94-5-202(1)(c), R.C.M. 1947. 

On this same date he was arraigned, with trial being set for 

September 16, 1975, two weeks from the date of arraignment. 

Prior to arraignment, defendant had retained and was represented throughout the arraignment and trial by Joseph B. Garyfi Esq. 

Trial was held on September 16, 1975. Both at the outset of trial 

and at the close of the State's case Gary informed the district 

court that he was ready to proceed. After a jury trial defendant 

was convicted and sentenced to 10 years in prison. Following 

this conviction, Gary stated by affidavit: that the district 

court informed him on September 11, 1975 (nine days after arraignment and five days prior to the trial date) that the trial would 

be continued due to the press of other trials, whereupon he 

ceased trial preparation; that on September 15, 1975, the district 

court informed him that trial would be held as originally scheduled 

on September 16, 1975; that as a result he was unable to adequately 

prepare for trial since he did not interview the defense witnesses 

until the day of trial; that he had no opportunity to interview 

the State's witnesses and no time to plan his defense. 

The only issue presented on appeal is whether the district 

court, by its action as related by Gary, rendered defendant's representation by counsel ineffective. 

It has been well settled by this Court and others that 

a defendant is entitled to effective assistance of counsel under 

the United States Constitution and the Montana Constitution of 

1972. For a discussion of the cases establishing this right see 
the recent decision of this Court in State v. McElveen, 

Mont . - , 544 P.2d 820, 822, 32 St.Rep. 1277. In answering 

the issue as presented this Court need not concern itself with 

whether or not defendant was entitled to effective assistance 

of counsel, but what constitutes "effective assistance of counsel". 

We note the fact that counsel involved, Joseph B. Gary, 

was retained by defendant and not appointed by the district 

court. Furthermore, Gary was present at every stage of the proceeding from arraignment to conviction. 

The rule for weighing the effectiveness of retained 

counsel is quoted in McElveen, citing People v. Wein, 50 Cal.2d 

383, 326 P.2d 457: 

"' * * * 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" * * *.I" 

Also see State v. Noller, 142 Mont. 35, 381 P.2d 293; People v. 

Maldonado, 3 Ill.App.3d 216, 278 N.E.2d 225; Tompsett v. State of 

,1~6? Ohio, 146 F.2d 95, 98, (6th Cir. 1944), cert.den. 324 U.S. .%s , 

65 S.Ct. 916, 89 L.Ed 1424; Hendrickson v. Overlade, 131 F.Supp. 

561 (N.D. Ind. 1955). 

Defendant had chosen and retained Gary to represent 

him from arraignment through trial and was so represented without any objection on defendant's part as to the competency of 

counsel or the adequacy of the representation provided. Now 

after an adverse result at trial, and the affidavit of trial 

counsel, defendant raises this objection. This squarely meets 

the rationale for applying the above stated test, as set out 

in the Tompsett case: 

"The concept of this rule is that the lack of 

skill and incompetency of the attorney is imputed 

to the defendant who employed him, the acts of 
the attorney thus becoming those of his client 

and so recognized and accepted by the court, 

unless the defendant repudiates them by making 

known to the court at the time his objection to 

or lack of concurrence in them. A defendant 

cannot seemingly acquiesce in his attorney's 

defense of him or his lack of it, and after the 

trial has resulted adversely to defendant, 

obtain a new trial because of the incompetency, 

negligence, fraud or unskillfulness of his 

attorney." 

Applying the doctrines previously set forth and examining 

the record of the trial, we find no abuse of defendant's right 

to effective counsel. All witnesses testified at the trial and 

no new defense witnesses would be called should a new trial be 

held. Furthermore, defendant's trial counsel, through direct 

and cross-examination, offered all defenses admittedly available 

(self-defense, protection of his customers, and lack of cooperation by local law enforcement). Counsel stated in his affidavit 

that lack of preparation hindered his planning of a defense and 

effective trial tactics. As stated by the Second Circuit Court 

of Appeals in United States v. Denno, 313 F.2d 364, 374, cert.den. 

372 U.S. $ %T, Ig 83 S.Ct. 1112, 10 L Ed 2d 143: 

" * * * Poor tactics of experienced counsel, 

however, even with disasterous result, may 

hardly be considered lack of due process * * *." 

The affidavit filed by Gary does not change the position 

taken by this Court. On two separate occasions, prior to trial 

and at the close of the State's case in chief, Gary informed 

the district court that he was ready to proceed. In addition 

to this, Gary had nine days following arraignment before the 

district court informed him of its intention to continue the 

case. Examination of the record makes it appear that Gary did 

not enter the trial as flat-footed and totally unprepared as 

is contended. Gary provided defendant more than the minimum 

required for effective assistance of retained counsel and the 

trial, on record, was far from "a farce or a sham". 
Considering the facts, the district court record and 

the doctrines applicable to this appeal, we find that the 

district court did not render defendant's representation by 

counsel ineffective. In accor the judgment is 

We concur: