No. 13240 INTHE 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 JudicialDistrict, HonorableW. W. Lessley, Judge presiding. Counsel of Record: ForAppellant: William E. Gilbert argued, Bozeman, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana FJilliamJ. Anderson, Assistant Attorney General,

argued, Helena, Montana Donald E. White argued, County Attorney, Bozeman,

Montana

Submitted: September 2, 1976 Decided : 

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## 1976 Filed: 

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## 1976Mr. 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 districtcourt 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 datehe was arraigned, with trial being setfor September 16, 1975, two weeks from the dateof arraignment. Prior to arraignment, defendant had retained and was represented throughout the arraignment and trial by Joseph B. GaryfiEsq. Trialwas held on September 16, 1975. Both atthe outsetof trial and atthe closeof the State's case Gary informed the district court that he was ready toproceed. After a jury trial defendant

was convicted and sentenced to 10years inprison. Following thisconviction, Gary stated by affidavit: that the district court informed him on September 11, 1975 (ninedays after arraignment and fivedays prior tothe trialdate) that the trialwould be continued due tothe press of other trials, whereupon he ceased trialpreparation; that on September 15, 1975, the district court informed him that trialwould be held as originally scheduled on September 16, 1975; that as a result he was unable toadequately prepare for trial sincehe did not interview thedefense witnesses until the day of trial; that he had no opportunity tointerview the State'switnesses and no timetoplan his defense. The only issuepresented on appeal iswhether the district court, by its action asrelated by Gary, rendered defendant's representation by counsel ineffective. It has been well settledby this Court and others that

a defendant is entitled toeffective assistance of counsel under the United States Constitution and the Montana Constitution of 1972. For a discussion of the cases establishing thisright seethe recent decision of this Court in Statev. McElveen, Mont

# .- , 544 P.2d 820, 822, 32 St.Rep. 1277. In answering the issue as presented this Court need not concern itselfwith 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 forweighing the effectiveness of retained counsel is quoted in McElveen, citing Peoplev. Wein, 50 Cal.2d 383, 326 P.2d 457: 

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## * * The handling of the defense by counsel of the accused's own choice will not be declared inadequate except in those rare caseswhere 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, 142Mont. 35, 381 P.2d 293; Peoplev. Maldonado, 3 Ill.App.3d 216, 278 N.E.2d 225; Tompsett v. State of 

## ,1~6? Ohio, 146 F.2d 95, 98, (6thCir. 1944), cert.den. 324 U.S. 

### .%s 

## , 65 S.Ct. 916, 89 L.Ed 1424;Hendrickson v. Overlade, 131F.Supp. 561 (N.D. Ind. 1955). Defendanthad chosen and retained Gary to represent him from arraignment through trial and was so represented without any objection ondefendant'spart as to the competency of counsel or the adequacy of the representationprovided. Now after an adverse result at trial, and the affidavitof trial counsel,defendant raises this objection. This squarelymeets 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 ofthe 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 defenseof 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 defensewitnesses 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 Statesv. Denno, 313 F.2d 364, 374, cert.den. 372 U.S.

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# Ig 83 S.Ct. 1112, 10 L Ed 2d 143: 

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## * * * Poor tactics of experienced counsel, however, even with disasterous result, may hardly be considered lack of due process 

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## *." 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 defendantmore 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 representationby counsel ineffective. In accor the judgment is

We concur: