No. 13587

INTHE SUPREME COURT OF THE STATE OF MONTANA

JERRY GALLAGHER, Petitioner,

VS. ROGER CRIST, asWarden 

### of the Montana State Prison, Deer Lodge, Montana, Respondent.

ORIGINAL PROCEEDING: Counsel of Record: For 

### Petitioner: D. Frank Kampfe, Billings, Montana



### - Submitted: November 1, 1976 Decided: 

### NUv'

# 191976Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. This 

### is a petition for a 

### writof habeas corpus. In thispetition among other contentions, much 

### ismade of the fact that defense counsel appointed by the district

court had previously prosecuted petitioner while 

### a county attorney. This 

### same matter 

### wasraised on Gallagher's appeal from his conviction, upon which appeal he was represented by his present counsel. Gallagher's conviction was affirmed. See Statev. Gallagher, 162 Mont. 155, 509 P.2d 852 (1973). That same fallGallagher filed a petition for a 

### writ of habeas corpus inthis Court. Since that petition presented factual

### matters thatrequired investigation and determination in the districtcourtwherein petitioner's conviction of the 

### crimeof murder in the firstdegree was had, we referred the petition and accompanying papers to that court for such investigation, determination and hearing 

### as to that courtwould appear necessary. See Gallagher v. Crist, 163Mont. 536, 514 P.2d

Following the appointment of present counsel torepresent Gallagher the districtcourt proceeded with a hearing and on March 7, 1974, made and entered the following findings of fact and conclusionsof law: "The petitioner, Jerry Gallagher, having filed in the Supreme Court of the Stateof Montana a 

### writof habeas corpus on October 

### 1, 1973, and said Court having remanded said proceedings tothisCourt for such investigation, determination and hearing thereon astothisCourt may appear necessary inthe premises; and 

### it appearing tothe Court that investigation of certain allegations inthepetition

### was necessary both on behalf of the petitioner and the respondents the Court then appointed D. Frank Kampfe asattorney for thepetitioner and on December 19, 1973, a hearing was had on the saidpetition with time thereafter allowed counsel forboth parties to submit affidavits of jurors in support of and opposition to petitioner's contentions, and the Court being now fullyadvised in the premises now does hereby enter

### the following Findings of Fact: "1. That subsequent to petitioner's arrest and while he was in custody at Gillette, Wyoming, his back was photographed so as to depict a small abrasion or scratch and said photographwas later admitted as evidence at the trial, despite defense counsel's objections. "2. 

### That the manner inwhich said photographs were taken, as described in the testimony of Sheriff Meeks at the trial, was not a violation of any of the defendant's constitutional rights and did not force the defendant to incriminate himself. "3. 

### That John L. 

### Adams, one of the Public Defenders of this Court, was appointed to represent the petitioner at all stages of the proceedings through trial and post-trialmotions. Said attorney is a competent, able and experienced criminal trial attorney,having served for a number of years as both Deputy Yellowstone County Attorney and asYellowstone County Attorney; that said attorney conducted a conscientious investigation of the facts of the case prior to and during trial, made timely and effective motions on legal grounds to the Court prior, during and after trial, effectively examined witnesses, and did do an overall commendable job in representing the petitioner herein. That on at least one occasion prior to trial the petitioner stated to the Court he wanted Mr. Adams to representhim and that on at least one subsequent occasion the petitioner stated to the Court that he was satisfied with the services of Mr. Adams. 

### "4. That the State of Montana did not inflict an unfair trial upon the defendantby having charged one, John Currey with also having committed this crime in concert or as an accomplice to or with this petitioner as alleged in petitioner's petition for writ of habeas corpus. "5. 

### Thatpetitioner's billfold was marked as an exhibit during trial and submitted to the jury along with other exhibits and that among numerous other items in the billfold therewas therein contained the following: "(a) Bailbondsmen personal cards from different states; "(b) Personal cards of attorneys in different states; "(c) A bailbond receipt from the State of California. "6. 

### That petitioner now claims that such abovedescribed items contained in the billfold, the existence of which were not known to either counsel or the Court prior to their submission to the jury during deliberations,constituted prejudicial error.

### "7. Counsel for both the petitioner and the Statehave submitted affidavits of jurors concerning the question of whether or not the jurors examined said above referenced 

### items in the billfold and if sowhether or not such examination affected their verdict. Such items inthe billfold 

### werenot part of the jury's deliberations on the case and had no affect on the verdict. "From the foregoing Findings of Fact the Court now makes its Conclusions of Law: "1. That no constitutionalrights of the petitioner were violated by the taking of the photograph of his back 

### at Gillette, Wyoming, and by 

### its later admission into evidence at

### trial. "2. That petitioner's court-appointed counsel, John L. Adams, represented said petitioner thoroughly and adequately and without prejudice topetitioner during all stages of the proceedings on the charge of firstdegreemurder. "3. That there 

### isno showing of prejudice tothe petitioner based on the contents of the billfold and therewas no error inlaw by such contents of the billfold being submitted tothejury as they were. If any errorwas involved, such error was not prejudicial to thepetitioner. "4. Petitioner has not shown any error of 

### lawor fact or prejudice and ishereby denied allrelief sought.

### " In thepresent petition there areno new facts which have not been previously considered by thisCourt and the districtcourt. Therefore the

### writrequested 

### isdenied and this proceeding 

### isordered dis

Chief Justice We concur: