### 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:fc,..

### 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 defendantwas 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, StevenA. 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 spotwhere 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 possiblenerve damage. Defendant Lopez was linked to the incidentby the finding of his glasses and bike atthe scene and by fingerprints on a tube of toothpaste from his shaving kit which Wiscombe had picked up. Lopez, on the other hand, testified thatWiscombe attempted torun him off the road and thathe fell into a ditch and losthis glasses. He stated that ashe was climbing out of the ditch tothe roadway, he threw a rock at Wiscombe to stop him from advancing on the defendant. Lopez contends he did not intend tohurtWiscombe but

### was only trying to defend himself. In an attempt toget away, Lopez testified he jumped into the car and tried to take off. Wiscombe then broke the sidewindow and caused Lopez todrive into the ditch. Lopez stated he could not get out on the driver's sidebecause Wiscombe had a rock inhishand 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 atapproximately 7:20 a.m. the same morning. Lopez appeals his convictions of aggravated assault and attempted theftcontending thathe was denied effective assistance of counsel. Further, defendant complains that the sentence imposed by the DistrictCourt was based upon a prejudicial presentence report and therefore 

### was improper. Two issues arepresented for thisCourt's review: 1. Was defendant denied a fair trialbecause he did not receive adequate and effective assistance of counsel? 2. Was the sentence imposed by the ~istrict Court proper?In recent years thisCourt 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; Statev. Miller (1977), Mont. 

## -, 568 P.2d 130, 34 St.Rep. 838; Statev. Brooks (1976), 171 Mont. 45, 554 P.2d 753; Statev. McElveen (1975), 168Mont. 500, 544 P.2d 820. These cases have consistently recognized the accused's right tocounsel 

### as required by the Sixth and Fourteenth Amendments tothe United StatesConstitution and Article 11, Section 24, of the 1972Montana Constitution. It 

### isundisputed that thisright to counsel encompasses the right toeffective assistance of counsel. Statev. McElveen,

To determine the adequacy of defendant's counsel this Court uses the "farce and sham" 

### test. State

### v. Noller (1963), 142Mont. 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 sowoefully inadequate 

### as to shock the conscience of the court and make the resultantproceeding a farce and mockery of justice." State v. Miller, 568 P.2d at132. (Citationsomitted.) In applying the 

### test thisCourt ruled: "To determine the adequacy of the representation, 

### we must look 

### atthe services rendered by appointed counsel inthe context of the reasoning 

### set forth by Justice John C. Harrison inState

### v. Forsness 159Mont. 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 atleisure and cite different tactics of perhaps doubtful efficacy. Success isnot the test of efficientcounsel, frequently neither vigor, zeal, nor skillcan overcome the truth.

### "' Statev. McElveen, 544 P.2d at822. Further, inWilliams v. Beto (5thCir. 1965), 354 F.2d 698, 706, the court stated:

### "

# . . 

# . the factthat some other lawyer followed a differentcourse inanother case, orwould have done differentlyhad 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 

### isan artaswell

### as a science. As 

### no two men can be exactly alike inthe practice of the profession, it is

### basically unreasonable tojudge an attorney by what another would have done, or says he would have done, in the better lightof hindsight. 

# . ." (Citationsomitted.) 

### 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 attrial, the cumulative effectof which he contends deprived him of a 

### fairtrial. We discuss these "mistakes" in the order defendant raises them on appeal. The first"mistake" was 

### the failureby the District Court toremove defense counsel, Larry Moran, on defendant's objection following the submission of an affidavitby Mr. 

### Moran on the morning of trial. This affidavit stated in effect thatMr. 

### Moran was getting no cooperation from defendant interms of preparing a defense and would be able todo little 

### attrial other than sit

### atthe counsel table. Despite this affidavit, the DistrictCourt proceeded totrial, and Mr. 

### Moran continued torepresent defendant. Defendant contends it

### was error not toremove Mr. 

### Moran on defendant's objection. We disagree. It 

### is 

### true thatMr. 

### Moran, by his affidavit, stated he would have difficulty inrepresenting the defendant. Mr. 

### Moran, however, also stated for the record thathe 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 spiteof defendant's refusal to cooperate inthe preparation of the defense. Mr. Moran was appointed to represent defendant approximately three weeks before the trial. Apparently, this lack of communication existed throughout thisperiod. Defendant, however, failed torequest different counsel until the morning of trial. He continued toobject throughout the trial tohaving Mr. Moran represent him. "Although the attorney clientrelationship 

### is ordinarily a private matter, a defendant does not have the unbridled right todischarge coun

### sel on the eve of trial." Statev. Miller, supra, 568 P.2d 

### at 132. (Citationsomitted.) Furthermore, 

# ".

. . while this right to counsel includes the rightof an indigent defendant tohave 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 tohave 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 isgood cause shown why the appointment of a particular attorney should not have been made, the defendant must accept the attorney selectedby the courtunless he waives the right tobe represented by counsel. This proposition of 

### lawis supported by numerous cases." State v. Forsness, supra, 495 P.2d at179. (Citations omitted

# . ) Counsel here did the best he could under the circumstances. The DistrictCourt on two occasions expressed confidence inMr. Moran's abilities, and a careful reading of the transcript indicates that the defense provided 

### was adequate. Apparently Mr. Moran filedhis affidavit solely because defendant refused toparticipate in the preparation of his defense. It 

### is a general rule that a party who participates inor contributes to an error cannot complain of 

### it. Statev. Miller, 568 P.2d at132. We find no 

### merit indefendant'

### s allegation.

### The second "mistake" according todefendant was twofold. It 

### involved the inference on two separateoccasions thatdefendantmay have had a prior conviction on his record The firstoccurred during the voir direof the jury when defense counsel Moran stated: 

# ".



# . . There may be evidence inthis case of a prior conviction of thisdefendant. If thatdoes, infact, come intoevidence, will

### any of you

assume guiltinthiscase?" The second occurred when the Statewas attempting tointroduce intoevidence defendant's glasses. The following colloquy took place: "BY MR. WHITE: 

### (CountyAttorney) 

## -- "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 inthe ditch, then. "Q. 

### And, you took them and placed them inthe bag inwhich they 

### were contained? A. Yes, I 

### did. "Q. 

### Thatwould be only inyour possession since thattime? A. I 

### mailed them tothe State IdentificationBureau inHelena where Phil Conover checked them for fingerprints, and he returned them tome, 

### and then I 

### mailed them to the State Prison where they attempted toidentify them, and they returned them to

### me. "MR. WHITE: I 

### would offer intoevidence State's 6, 

### your Honor. "MR. MORAN: 

### No objection, your Honor." Although defendant concedes thatno actual evidence of prior convictions

### was introduced, he argues that the above references toprior convictions

### wereprejudicial. While we 

### question the propriety of defense counsel's voir direquestion, the factsof this case do not indicate thatdefendantwas prejudiced. When thisquestionwas asked, Judge Lessley immediately stated: "There

### willbe no evidence of the prior conviction inthis 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 isprejudicial because it appears to shift the burden of proof to the defendant. Recently, in Statev. 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 Statev. 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 Cooperwe tacitly rejected an argument by the Montana CountyAttorneys Association that a defendant should berequired toprove his affirmative defense by a preponderance of the evidence. Arguments similar to the one by defendant here 

### were rejected by this Court inCooper. Although Cooper dealtwith a slightlymilder instruct.ion than the one presented here, we reach the same result. Atfirstglance defendant appears to

### raise an issue 

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

## , 99 S.Ct. 2450, 61L.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

Pattersonwas concerned with the constitutionality under the Due Process Clause of burdening the defendant in a New York murder trialwith proving extreme emotional disturbance as defined by New York law. The United States Supreme Court ruled thatrequiring the defendant toprove his affirmative defense by a preponderance of the evidence did not violate due process and stated: 

# ".

. 

# . the universal rule inthis country was that the prosecution must prove guiltbeyond a reasonable doubt. Atthe same 

### time, the longaccepted rulewas that 

### it was constitutionally permissible toprovide thatvarious affirmative defenses 

### were tobe proved by the defendant. This did not lead to such abuses or to such widespread redefinition of 

### crimeand reduction of the prosecution's burden thata new constitutional rule was required 

# . . . Nor does the factthat 

### 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 inviolation of the Constitution." Patterson, 53 L.Ed.2d 

### at292-93. In Leland the defendant raised the affirmative defense of insanity which, by Oregon state statutes, he 

### was required toprove. One of the statutes inquestion provided: "'Whenthe commission of the actcharged as a crime isproven, and the defense sought tobe established 

### is the insanity of the defendant, the 

### samemust be proven beyond a reasonable doubt'. 

# . ." 343 U.S. at792. The defendant there argued that the statuteinquestion, ineffect, required a defendantpleading 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 statutemust be viewed in 

### its relation toother relevant Oregon lawand in 

### itsplace in the trial of the case. On reviewing allthe instructions in the 

### case, the Court stated: 

# ".

.

# .Although a plea of insanitywas made, the prosecution 

### was required toprove beyond a reasonable doubt every element of the crime charged, including, inthe case of firstdegree murder, premeditation, deliberation, malice and intent. The trialcourt repeatedly emphasized this requirement in

### its charge to the jury'. 

# . . These and other instructions, and the charge asa whole, make it clear that the burden of proof of guilt, and of allthe necessary elements of guilt, 

### was placed squarely upon the State. As the jury was told, thisburden did not shift, but rested upon the Statethroughout the trial, just as, according to the instructions, appellant was presumed tobe innocent until the jury 

### was convinced beyond a reasonable doubt thathe was guilty. The jurors 

### were to consider separately the issue of legal sanityper 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, inlightof the holdings inPatterson and Leland, 

### reveals that the burden of proof did not shifttodefendant. Time and again thejury was instructed that the defendant 

### was presumed tobe innocent and that the Statemust prove the defendant's guiltbeyond a reasonable doubt.The contested instruction here, while worded a little stronger than the self-defense instruction this Court favors, did not have the effectof 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 toobject to the instructionwas not ineffective representation, While the instruction was not improper in lightof the facts inthis case, 

### we reaffirm our holding in Statev. Cooper, supra, and urge that the self-defense instruction approved inthat case be used inallcriminal

cases involving an issueof self-defense. The second issue raised by defendant 

### iswhether the sentence imposed by the District Court was proper. Defendant firstcontends 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 isburdened with the sins of omission and does not deserve discussion. Judge Lessley held a dispositional hearing and atthe outset told defendant that there would be no rules of evidence, 

### etc., unless defense objected so that they could get inanything they wanted and not be hampered by formal requirements. Defendant had copies of the presentence report, psychological reports, and



### was able tocross-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 Statev. Metz (1979), Mont. -1 

### -P.2d 

## , 36 St.Rep. (CauseNo. 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.judgmentand grant a new trial. In doing so, I

### must state that 

### Iwould 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 casemust 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: "Therewill be no evidence of - 

### the prior conviction in this cause." (Emphasisadded.) 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 tobe, and established tobe those of the defendant, 

### were sent to the stateprison for identification, the jury had no doubt that the defendant had a previous felony conviction for which he was sent toprison. 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 stateprison for identification, could well have been an important and inappropriate factor inthe jury's decision tobelieve Wiscombe rather that the defendant. I would, therefore, reverse the conviction and grant a

new trial.