No. 14714 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

DANIEL HERMAN LOPEZ, 

Defendant and Appellant. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellant: 

A. Michael Salvagni, Bozeman, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Donald White, County Attorney, Bozeman, Montana 

Submitted on briefs: October 4, 1979 

Decided : .IFt: 2 .- - 

Filed: f c,.. 
Mr. ~ustice Gene B. Daly delivered the Opinion of the Court. 

 his is an appeal by defendant-appellant, Daniel H. 

Lopez, from a judgment of the District Court of the Eighteenth 

Judicial District, Gallatin County, the Honorable W. W. 

Lessley presiding, rendered upon a jury verdict convicting 

him of aggravated assault and attempted theft. 

The defendant was sentenced to the state prison for 

twenty years on aggravated assault and ten years on attempted 

theft, the sentences to run concurrently. The District 

Court designated defendant a dangerous offender. 

According to both defendant Lopez and the victim, 

Steven A. Wiscombe, there was an early morning encounter 

between the two men near the Durston Road, west of Bozeman, 

Montana, on July 11, 1978. The testimony as to the circumstances of this encounter is contradictory. 

Wiscombe testified that he arrived in Bozeman after 

midnight and decided against staying in a motel. He, therefore, drove out of town, found an accommodating spot and 

went to sleep in his sleeping bag. 

Wiscombe was awakened by defendant shaking him, beating 

him with a rock, swearing, and demanding Wiscombe's car 

keys. A struggle ensued in which defendant Lopez lost his 

glasses but obtained the car keys. Lopez attempted to drive 

away in the car, but Wiscombe grabbed a door handle and 

broke a side window, causing Lopez to swerve off the road. 

The men scuffled over the car keys, and the confrontation 

ended when Lopez fled. Wiscombe returned to his sleeping 

spot where he picked up his belongings and Lopez's shaving 

kit. He then drove to Bozeman Deaconess Hospital where he 

was treated and hospitalized for three days with head and 

face lacerations, a small fracture of the skull and possible 
nerve damage. Defendant Lopez was linked to the incident by 

the finding of his glasses and bike at the scene and by 

fingerprints on a tube of toothpaste from his shaving kit 

which Wiscombe had picked up. 

Lopez, on the other hand, testified that Wiscombe 

attempted to run him off the road and that he fell into a 

ditch and lost his glasses. He stated that as he was climbing out of the ditch to the roadway, he threw a rock at 

Wiscombe to stop him from advancing on the defendant. Lopez 

contends he did not intend to hurt Wiscombe but was only 

trying to defend himself. 

In an attempt to get away, Lopez testified he jumped 

into the car and tried to take off. Wiscombe then broke the 

side window and caused Lopez to drive into the ditch. Lopez 

stated he could not get out on the driver's side because 

Wiscombe had a rock in his hand and had expressed intentions 

of killing Lopez. Lopez then crossed the console, exited 

through the passenger door and fled across a field. He was 

arrested near the scene of the incident at approximately 

7:20 a.m. the same morning. 

Lopez appeals his convictions of aggravated assault and 

attempted theft contending that he was denied effective 

assistance of counsel. Further, defendant complains that 

the sentence imposed by the District Court was based upon a 

prejudicial presentence report and therefore was improper. 

Two issues are presented for this Court's review: 

1. Was defendant denied a fair trial because he did 

not receive adequate and effective assistance of counsel? 

2. Was the sentence imposed by the ~istrict Court 

proper? 
In recent years this Court has addressed the issue of 

adequate assistance of counsel on a number of occasions. 

See State v. Maldonado (1978), Mont . , 578 P.2d 

296, 35 St.Rep. 420; State v. Miller (1977), Mont. -, 

568 P.2d 130, 34 St.Rep. 838; State v. Brooks (1976), 171 

Mont. 45, 554 P.2d 753; State v. McElveen (1975), 168 Mont. 

500, 544 P.2d 820. These cases have consistently recognized 

the accused's right to counsel as required by the Sixth and 

Fourteenth Amendments to the United States Constitution and 

Article 11, Section 24, of the 1972 Montana Constitution. 

It is undisputed that this right to counsel encompasses the 

right to effective assistance of counsel. State v. McElveen, 

To determine the adequacy of defendant's counsel this 

Court uses the "farce and sham" test. State v. Noller 

(1963), 142 Mont. 35, 381 P.2d 293, 294. This test states: 

". . . [To] prevail on a claim of constitutionally 

inadequate representation, a defendant must meet 

the burden of proving his counsel's performance 

was so woefully inadequate as to shock the conscience of the court and make the resultant proceeding a farce and mockery of justice." State 

v. Miller, 568 P.2d at 132. (Citations omitted.) 

In applying the test this Court ruled: 

"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, 178: 

"'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. "' State v. McElveen, 544 P.2d at 822. 

Further, in Williams v. Beto (5th Cir. 1965), 354 F.2d 698, 

706, the court stated: 
" . . . the fact that some other lawyer followed 

a different course in another case, or would have 

done differently had he been acting as counsel, 

is no ground for branding the appointed attorney 

with the opprobrium of ineffectiveness, or infidelity, or incompetency. The practice of law 

is an art as well as a science. As no two men 

can be exactly alike in the practice of the profession, it is basically unreasonable to judge 

an attorney by what another would have done, or 

says he would have done, in the better light of 

hindsight. . . " (Citations omitted. ) 

With the guidance of these general principles, we 

examine the allegations of defendant concerning his counsel's ineffectiveness. Defendant cites three alleged 

mistakes by counsel and the District Court at trial, the 

cumulative effect of which he contends deprived him of a 

fair trial. We discuss these "mistakes" in the order defendant raises them on appeal. 

The first "mistake" was the failure by the District 

Court to remove defense counsel, Larry Moran, on defendant's 

objection following the submission of an affidavit by Mr. 

Moran on the morning of trial. This affidavit stated in 

effect that Mr. Moran was getting no cooperation from defendant in terms of preparing a defense and would be able to do 

little at trial other than sit at the counsel table. Despite 

this affidavit, the District Court proceeded to trial, and 

Mr. Moran continued to represent defendant. Defendant 

contends it was error not to remove Mr. Moran on defendant's 

objection. We disagree. 

It is true that Mr. Moran, by his affidavit, stated he 

would have difficulty in representing the defendant. Mr. 

Moran, however, also stated for the record that he would 

". . . proceed as far as I am able. I have never shirked my 

responsibility for duty as a public defender. I'll give 

whatever I can on behalf of Mr. Lopez." By this statement, 
Mr. Moran indicated that he would represent defendant to the 

best of his ability in spite of defendant's refusal to 

cooperate in the preparation of the defense. Mr. Moran was 

appointed to represent defendant approximately three weeks 

before the trial. Apparently, this lack of communication 

existed throughout this period. Defendant, however, failed 

to request different counsel until the morning of trial. He 

continued to object throughout the trial to having Mr. Moran 

represent him. 

"Although the attorney client relationship is 

ordinarily a private matter, a defendant does 

not have the unbridled right to discharge counsel on the eve of trial." State v. Miller, 

supra, 568 P.2d at 132. (Citations omitted.) 

Furthermore, 

". . . while this right to counsel includes the 

right of an indigent defendant to have counsel 

appointed for his benefit free of charge to him 

. . . it never has been held that this right to 

counsel also comprehends a right of an indigent 

defendant to have counsel of his choice appointed 

for him. Rather, it is the duty of the court to 

appoint counsel for the indigent defendant, and 

unless there is good cause shown why the appointment of a particular attorney should not have 

been made, the defendant must accept the attorney 

selected by the court unless he waives the right 

to be represented by counsel. This proposition 

of law is supported by numerous cases." State 

v. Forsness, supra, 495 P.2d at 179. (Citations 

omitted . ) 

Counsel here did the best he could under the circumstances. The District Court on two occasions expressed 

confidence in Mr. Moran's abilities, and a careful reading 

of the transcript indicates that the defense provided was 

adequate. Apparently Mr. Moran filed his affidavit solely 

because defendant refused to participate in the preparation 

of his defense. It is a general rule that a party who 

participates in or contributes to an error cannot complain 

of it. State v. Miller, 568 P.2d at 132. We find no merit 

in defendant' s allegation. 
The second "mistake" according to defendant was twofold. It involved the inference on two separate occasions 

that defendant may have had a prior conviction on his record 

The first occurred during the voir dire of the jury when 

defense counsel Moran stated: ". . . There may be evidence 

in this case of a prior conviction of this defendant. If 

that does, in fact, come into evidence, will any of you 

assume guilt in this case?" The second occurred when the 

State was attempting to introduce into evidence defendant's 

glasses. The following colloquy took place: 

-- "BY MR. WHITE: (County Attorney) 

"Q. And, may I have the glasses? Can I borrow 

them just for a second? And, I hand you what 

has been marked State's Exhibit 6. Can you 

identify these? A. Yes, these are the glasses 

which I found in the ditch, then. 

"Q. And, you took them and placed them in the 

bag in which they were contained? A. Yes, I 

did. 

"Q. That would be only in your possession since 

that time? A. I mailed them to the State Identification Bureau in Helena where Phil Conover 

checked them for fingerprints, and he returned 

them to me, and then I mailed them to the State 

Prison where they attempted to identify them, and 

they returned them to me. 

"MR. WHITE: I would offer into evidence State's 

6, your Honor. 

"MR. MORAN: No objection, your Honor." 

Although defendant concedes that no actual evidence of prior 

convictions was introduced, he argues that the above references to prior convictions were prejudicial. 

While we question the propriety of defense counsel's 

voir dire question, the facts of this case do not indicate 

that defendant was prejudiced. When this question was 

asked, Judge Lessley immediately stated: "There will be no 

evidence of the prior conviction in this cause." The record 

indicates no such evidence was introduced. 
The jury was instructed that they were to be governed 

solely by the evidence introduced at trial and the law as 

stated by the judge. There is nothing here to indicate that 

the jury disregarded that instruction to defendant's prejudice. 

Further, there is nothing in the chain of custody 

colloquy which placed into the record evidence of a prior 

conviction. The fact that a defendant admittedly has suffered a prior felony conviction is not error. These vague 

references then, if error, are not reversible error; however, we would condemn this kind of tactic in the future. 

Finally, defendant argues that counsel's failure to 

object to a self-defense instruction offered by the State 

deprived him of a fair trial. The instruction stated: 

"You are instructed that the defense of justifiable use of force or self-defense is an affirmative defense and the defendant has the burden of 

proving self-defense to raise a reasonable doubt 

of his guilt." 

Defendant submits that this instruction is a misstatement of 

the law and is prejudicial because it appears to shift the 

burden of proof to the defendant. 

Recently, in State v. Cooper (1979), - Mont. I 

589 P.2d 133, 36 St.Rep. 30, this Court reaffirmed the 

general rule in Montana regarding jury instructions on selfdefense. Quoting State v. Grady (1975), 166 Mont. 168, 531 

P.2d 681, we stated: 

"'The law in Montana is that although the burden 

of persuasion remains on the State, in order to 

avail himself of the affirmative defense of selfdefense, the defendant has the burden of producing sufficient evidence on the issue to raise 

a reasonable doubt of his guilt.'" 589 P.2d at 

136. 

In Cooper we tacitly rejected an argument by the Montana County Attorneys Association that a defendant should be 
required to prove his affirmative defense by a preponderance 

of the evidence. Arguments similar to the one by defendant 

here were rejected by this Court in Cooper. Although Cooper 

dealt with a slightly milder instruct.ion than the one presented here, we reach the same result. 

At first glance defendant appears to raise an issue 

similar to that raised in Sandstrom v. Montana (1979), 

U. S. , 99 S.Ct. 2450, 61 L.Ed.2d 39. This case, 

however, is easily distinguished from Sandstrom with the 

help of two other United States Supreme Court cases, Patterson v. New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 

L.Ed.2d 281, and Leland v. Oregon (1952), 343 U.S. 790, 72 

Patterson was concerned with the constitutionality 

under the Due Process Clause of burdening the defendant in a 

New York murder trial with proving extreme emotional disturbance as defined by New York law. The United States Supreme 

Court ruled that requiring the defendant to prove his affirmative defense by a preponderance of the evidence did not 

violate due process and stated: 

". . . the universal rule in this country was 

that the prosecution must prove guilt beyond a 

reasonable doubt. At the same time, the longaccepted rule was that it was constitutionally 

permissible to provide that various affirmative 

defenses were to be proved by the defendant. 

This did not lead to such abuses or to such widespread redefinition of crime and reduction of the 

prosecution's burden that a new constitutional 

rule was required . . . Nor does the fact that a 

majority of the States have now assumed the burden of disproving affirmative defenses--for whatever reasons--mean that those States that strike 

a different balance are in violation of the Constitution." Patterson, 53 L.Ed.2d at 292-93. 

In Leland the defendant raised the affirmative defense 

of insanity which, by Oregon state statutes, he was required 

to prove. One of the statutes in question provided: "'When 
the commission of the act charged as a crime is proven, and 

the defense sought to be established is the insanity of the 

defendant, the same must be proven beyond a reasonable 

doubt'. . ." 343 U.S. at 792. The defendant there argued 

that the statute in question, in effect, required a defendant pleading insanity to establish his innocence by disproving beyond a reasonable doubt elements of the crime 

necessary to a verdict of guilty and therefore violated due 

process of law. To determine the merits of this challenge, 

the Court ruled that the statute must be viewed in its 

relation to other relevant Oregon law and in its place in 

the trial of the case. On reviewing all the instructions in 

the case, the Court stated: 

". . . Although a plea of insanity was made, the 

prosecution was required to prove beyond a reasonable doubt every element of the crime charged, 

including, in the case of first degree murder, 

premeditation, deliberation, malice and intent. 

The trial court repeatedly emphasized this requirement in its charge to the jury'. . . These 

and other instructions, and the charge as a 

whole, make it clear that the burden of proof 

of guilt, and of all the necessary elements of 

guilt, was placed squarely upon the State. As 

the jury was told, this burden did not shift, 

but rested upon the State throughout the trial, 

just as, according to the instructions, appellant 

was presumed to be innocent until the jury was 

convinced beyond a reasonable doubt that he was 

guilty. The jurors were to consider separately 

the issue of legal sanity per se--an issue set 

apart from the crime charged . . ." 343 U.S. at 

794-796. 

A review of the instructions given in the instant case, 

in light of the holdings in Patterson and Leland, reveals 

that the burden of proof did not shift to defendant. Time 

and again the jury was instructed that the defendant was 

presumed to be innocent and that the State must prove the 

defendant's guilt beyond a reasonable doubt. 
The contested instruction here, while worded a little 

stronger than the self-defense instruction this Court favors, 

did not have the effect of shifting the burden of proof from 

the State to the defendant. The use of the instruction, 

therefore, did not deprive the defendant of a fair trial and 

failure to object to the instruction was not ineffective 

representation, While the instruction was not improper in 

light of the facts in this case, we reaffirm our holding in 

State v. Cooper, supra, and urge that the self-defense 

instruction approved in that case be used in all criminal 

cases involving an issue of self-defense. 

The second issue raised by defendant is whether the 

sentence imposed by the District Court was proper. 

Defendant first contends that the presentence report 

does not comply with applicable statutory law because it 

does not consider the needs and potentialities of the defendant, nor does it consider any aspects of rehabilitation. 

This complaint is burdened with the sins of omission 

and does not deserve discussion. Judge Lessley held a dispositional hearing and at the outset told defendant that 

there would be no rules of evidence, etc., unless defense 

objected so that they could get in anything they wanted and 

not be hampered by formal requirements. Defendant had 

copies of the presentence report, psychological reports, and 

was able to cross-examine the author of the presentence 

report. There were many, many witnesses--lay, doctor, and 

religious--who testified for the defendant for a total 

hearing of 84 pages of transcript. We cannot conceive of any 

way this hearing could have been conducted more fairly. See 

State v. Metz (1979), Mont. -1 - P.2d , 36 

St.Rep. (Cause No. 14682, decided December 19, 1979). 
Defendant further asserts that he has been convicted of 

only one violent offense--rape in Missoula in 1969. It is 

apparent that defendant failed to take into account that he 

had also been convicted of the present offense--aggravated 

assault. The District Court's finding was therefore not 

erroneous. 

The judgment of the District Court is affirmed. 

B 

Justice d 

We concur: 

v4-u?~a, Chief Justice 
Mr. Justice Daniel J. Shea dissenting: 

I would reverse the.judgment and grant a new trial. 

In doing so, I must state that I would first have to adopt 

a different standard than the "farce or sham" test which is 

the rule in this State. A defendant is not simply entitled 

to counsel, he is entitled to competent counsel. A "farce 

or sham" test seems to be judged in essence by the mere fact 

that the defendant had counsel and that his performance did 

not shock the conscience of the court. 

The case must be approached from the special circumstances 

existing here. The prosecuting witness Wiscombe testified 

that the defendant assaulted him; the defendant testified that 

he did not assault Wiscornbe, rather, Wiscombe assaulted him, 

and that was acting in self defense. The remaining physical 

evidence corroborated neither story. Thus, the jury was 

presented with a clear question of credibility. 

Needless to say, the fact that the defendant had been 

previously convicted of a felony, even though the jury did 

not know what that felony was, could have had a strong impact 

on the jury. The voir dire question by defense counsel obviously 

was meant to take the string out of any evidence introduced 

establishing that defendant had been previously convicted of 

a felony. And the trial judge's comment in relation to the 

question by defense counsel served only to emphasize that the 

defendant did in fact have a previous felony record. The 

trial court immediately responded to the voir dire question 

asked by defense counsel: "There will be no evidence of - the 

prior conviction in this cause." (Emphasis added.) 

Surely the jury knew by this comment of the trial judge 

that the defendant in fact had a previous conviction. And 

-13- 
when the witness added that the glasses, alleged to be, 

and established to be those of the defendant, were sent to 

the state prison for identification, the jury had no doubt 

that the defendant had a previous felony conviction for 

which he was sent to prison. They could conclude therefore 

that it was most likely a serious offense. Under these 

circumstances, defense counsel's question, in conjunction 

with the trial court's response and the witness's statement. 

;hat he had sent the glasses to the state prison for identification, could well have been an important and inappropriate 

factor in the jury's decision to believe Wiscombe rather 

that the defendant. 

I would, therefore, reverse the conviction and grant a 

new trial.