No. 14704 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

STATE OF MONTANA, Plaintiff and Respondent,

VS

# . WILLIAM NEWTON ROSE, Defendant and Appellant.

Appeal from: DistrictCourt of theFourth Judicial District, Honorable Jack L. Green, Judge presiding. Missoula County. Counsel of Record: For Appellant: Hirst, Dostal and Withrow, Missoula, Montana John Dostal argued, lTissoula, Montana Michael J. Sherwood, Missoula, Montana For Respondent: Honorable Mike Greely, Attorney General, Helena,

Montana Chris Tweeten argued, AssistantAttorney General,

Helena, Montana Robert L. Deschamps 111, County Attorney, Missoula,

Montana Karen Townsend, Deputy County Attorney argued and

Tom Beers, Deputy County Attorney argued, Missoula, Montana

Submitted: March 2 

## , 1980 Decided: Filed:Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Defendant appeals from a denial of his motion for a new trial followinghis convictionof burglary by a jury in the District Court of Missoula County. Dr. John Opalka was on vacation in March 1978. A neighbor, Rae Dabbert,had been asked to watch the Opalka home, to water plants and pick up mail. On March 2, 1978,she was in the home and all was in order. On Sunday,March 5,Mrs. Dabbert noticed that a door into the garage was open and that a number of

roomswere in disarray. She called the Missoula County sheriff's office and DeputyWillis Hintz arrived shortly thereafter. Mrs. Dabbert and Officer Hintz searched the house and discovered that a television setwas missing and that there were

some tools on a couch. They also saw tracks in the snowbehind the house. They could not tell whether the tracks had been made by one or by two people. Officer Hintz foundpry marks on a door leading into the living room and on the garage door. Dr. Opalka and his wife returned to Missoula on Monday, March 6, 1978. Later that day Dr. Opalka spokewith Deputy Phil Nobis who was investigating the crime. A list of themissing property was prepared at that time. Dr. Opalka indicated that six gunswere taken,two containersof coins with approximately $400 in each, a portable typewriter,a portable television and other miscellaneous items. On February 27 or 28, the defendant had been at Dr. Opalka's clinic demanding a cash refund for some returned pills. The receptionist informed the defendant at that time that she could not refund the money until the doctor returned and that the doctor would not be back for a week. The defendant had left the clinic extremely upset. In the earlymorning hours of March 5, 1978, a Universityof Montana security officer ticketed an illegallyparked vehicle belonging to Richard Cory. The officer observed in the back seat of the car a portable typewriter and a 5 gallon green jar with coins in it. On Friday,March 10,Missoula police learned that these items had been seen in Cory's car. Itwas also &ned that Cory and the defendantwere associates and that the defendant had recently had someguns in his possession. Thepolice found Cory and a voluntary statement was taken. In this statement Cory told thepolice that the defendant had been angry at Dr. Opalka because he could not get a refund on some pills and defendant had decided to "rip off" the doctor. Cory stated that the defendant had committed the burglary on his own and had taken some guns to the residence of Jane Gardiner. Cory denied any participation in the Opalka burglary. After taking this statement police officers went to the Gardiner residence. Stan Gardinerwas present and he voluntarily turned over four guns to the officers. A short time later his ex-wife Jane Gardiner returned to the residence. Two additional guns were recovered fromher car. A receipt was prepared for the guns and theywere returned to Dr. Opalka the nextmorning. Early in the morning on March 11, 1978,the defendantwas arrested in Darby,Montana, in a car belonging to Madeline Freeburg. The defendantwas charged with burglary,or in the alternative, theft of the six guns. He pleaded not guilty and interposed a defense of alibi. Madeline Freeburgwas listed as his alibiwitness. By the time of the trial Cory had changed his original version of the burglary. He testified that he and the defendant had committed the burglary together. In this testimonyhe outlined the details of the burglary. He stated that after the crime

was committed the defendanthad gone to Butte to try to sell the guns. Cory also testified thathe and the defendant went to Polsonthe next Tuesday in an attempt to sell two guns. hey had no

success in their attempts at selling the guns. The prosecution introduced the testimony of severalwitnesseswhich tended to link Cory and the defendant together on the night the crimewas committed. The defendant testified on his own behalf at the trial. He testified that he had nothing to do with the burglary. He stated that he did tell Cory about the visit to the Opalka Clinic, but that the idea of burglarizing the Opalka residence was Cory's. The defendant stated that he had not seen Cory on the night of the burglary,but that he did drive to Polsonwith Cory in an attempt to sell the guns. He testified that he did not know at that time that the guns had been stolen. A fewdays later, according to the defendant, he loaned his landlady's car to Cory for two or three hours in themorning. In the afternoon,after he had gotten the carback, the defendant received a phone call from Cory. Cory told the defendant that he (Cory)had left something in the car trunk and for the defendant to "Get that out of there." As a result,the defendant drove to Lolo,Montana, and stashed the guns in a pasture. The defendant and Cory later recovered the guns. Madeline Freeburg, who was the defendant's landlady,testified that defendant had been home studying all night on March 4, 1978, the night of the burglary. Shirley Marshall, an acquaintance of defendant's, stated that the defendanthad been at her home on the evening of March 4,and that he had left at about 11:OO p.m. Thedefendant testified that he had been with Shirley Marshall that evening and that he had gone home at aboutmidnight. He denied being with Cory that night and he denied being at any bars that night. Craig Howard testified as a rebuttal witness for the State. Howard testified that the defendanthad been in a Missoula barat 10:30 or 11:OO p.m. on March 4, 1978. The case was submitted to the jury on the alternative charges of theft and burglary. The jury was instructed that they could only find the defendant guilty of one of the two charges. The jury returned a verdict of guilty to the burglary count. The defendant filed a motion for a new trial which was denied. The defendant was sentenced to the State Prison for a period of 25 years. The District Court ordered that the defendant be declared ineligible for parole or furlough during the term of the sentence. The following issues are raised on appeal: 1. Was there sufficient corroborationof the accomplice's testimony? 2. Was themotion for a new trial properly denied? 3. Was InstructionNo. 20properly given to the jury? 4. Did the defendant have effective assistance of counsel? Under Montana law a defendant cannot be convicted of a crime solelyupon the testimony of an accomplice. Section 46-16- 213, MCA, provides: "A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense,as defined in 45-2-301,unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendantwith the commission of the offense. The corroboration is not sufficient if itmerely shows the commission of the offense or the circumstancesthereof." In the instant case the prosecutionwas largely based upon the testimony of Richard Cory, an admitted accomplice to the burglary. The defendant claims that, absent the testimony of Cory, there is not sufficient, independent evidence which "tends to connect" him with the burglary. The reason for the rule on corroboration is firmly grounded in common-experience. "The testimony of an accomplice is apt to be highly colored and biased. Moreover, it is to be expected thatan accomplicemay, or has good reason to,place his own welfare and freedom above that of the defendant." 2 Wharton's Criminal Evidence 5445 (12thed. 1955). This Court has recently outlined the law of corroboration of 'accomplicesas follows: "The sufficiency of evidence necessary to corroborate accomplice testimony is a question of law. Statev. Standley (1978)r Mont

# . , 586 P.2d 1075, 1078, 35 St.Rep. 1631, 1635;State v. Perry (1973), 161Mont. 155, 161, 505 P.2d 113, 117. In defining the quantum and character of proof required to corroborate accomplice testimony, a substantial body of case law has evolved. "Tobe sufficient,corroborating evidencemust show more than that a crimewas in fact committed or the circumstancesof its commission. State v. Keckonen

(1938), 107Mont. 253, 263, 84 P.2d 341, 345. It must raise more than a suspicionof the defendant's involvement in, or opportunity to commit, the crime charged. State v. Gangner (1957),130Mont. 533, 535, 305 P.2d 338, 339. But corroborative evidenceneed not be sufficient,by itself, to support a defendant's conviction or even to make out a prima facie case againsthim. State v. Ritz (1922), 65Mont. 180, 186, 211 P. 298, 300; Statev. Stevenson (1902), 26 Mont. 332, 334, 67 P. 1001, 1002. Corroborating evidence may be circumstantial (Statev. Harmon (1959)

## , 135 Mont. 227, 233, 340 P.2d 128, 131) and can come from the defendant or his witnesses. Statev. Phillips

(1953),127Mont. 381, 387, 264 P.2d 1009, 1012. "With these principles inmind, each casemust be examined on itsparticular facts to determine if the evidence tends, in and of itself,to prove defendant's connectionwith the crime charged. "One accomplice cannot supply the independent evidence necessary to corroborate another accomplice. State v. Bolton (1922)

## , 65Mont. 74, 88, 212 P. 504, 509; 30 Am.Jur.2d Evidence, Sec. 1156 

# .

# .." State v. Kemp (1979), Mont

# . , 597 P.2d 96, 99, 36 St.Rep. 1215, 1217-1218. In the present case the only independent evidence which tends to connect the defendant with the burglary is his possession of the stolen guns. The defendantwas in possession of the guns on at least two occasionsby his own admission. He and Cory had the gunswhen they drove to Polson and the defendanthad sole possessionwhen he stashed the guns in the pasture near Lolo. The defendant contends that this tends to connect him with theft (ofwhich he was acquitted) but notburglary, because burglary requires an unlawful entering of an occupied structure. Section 45-6-204

### (I),MCA. We disagree. "Itmay be shown,by way of corroboration ,

# .

# . that the defendantwas in possession of the stolenproperty involved in the crime charged

# ..." 3Wharton's Criminal Evidence S649 (13thed. 1972). This rule extends to the crime of burglary. "In prosecutions for larceny, robbery, and.burglary, an accomplice may be corroborated by proof of the possession of the stolenproperty by the defendant charged with the crime." 2 Wharton's Criminal Evidence S467 (12thed, 1955). In the recent case of Statev. Williams (1979), Mont

# . , 604P.2d 1224, 1230, 36 St.Rep. 2328, 2336,we held that constructivepossession of a stolenpistol sufficiently corroborated the testimony of an accomplice where the defendantwas convicted of conspiracy to commit a burglary. In the present case the defendant attempted to explain away his possession of the stolen guns. In the similar case of People v. Hughey (1926),7:' Cal.App. 541, 250 P. 406, the defendant had been convicted of conspiracy to commit robbery. On appeal he alleged that therewas not sufficient corroborating evidence to support the testimony of two accomplices. The Court noted that the defendant's unexplained possession.ofitems taken in the burglary was a circumstance tending to show guilt. As to the defendant's explanation of his possession of these items, the Court said: "Inthe instant case appellant attempted to explain his possession of the stolenpin. This testimony, however, the jury was not bound to believe, and if disbelieved, the fact of such possession tended strongly and was sufficient to corroboratethe testimony of t!le acccmplices mentioned." 250 P. at 407. We agree with this reasoning. Defendant's possession of the stolen guns was sufficient as a matter of law to corroborateCory's testimony. Whether the defendant'sexplanationwas sufficient to explain away thepossession was a factual question for the jury.In State

### v. Broell (1930), 87Mont. 284, 286 P. 1108, the defendant contended that his possession of stolen property did not sufficiently corroborate an accomplice' s testimony in a larceny case. The defendant attempted to explain away thepossession. This Court held that the possession tended to con defendantwith the larceny. We said, "Whetherthe expla

were sufficiently satisfactory to raise a reasonabledou minds of the jurors as to defendant's connectionwith th charged was a question for the jury's determination 

# . . at 292. For cases from other jurisdictionswhich have h possession of stolen property sufficiently corroborates plice's testimony see: Statev. Brown (1973), 13 0r.App P.2d 234; Turci

### v. State (0kla.Crim. 1971), 482 P.2d 611 State

### v. Oliver (1969), 9Ariz.App. 364, 452 P.2d 529. that therewas sufficient corroborative evidence to supp testimony of Cory. The defendant next alleges that his motion for trialwas improperlydenied. At a hearing on thematter District Court the defensepresented the testimony of Ro and Maynard Owns Medicine. Conn testified that he had s in Cory's room at 10:30 a.m. on Sunday,March 5. Conn h there to collect somemoney that Cory owed him. Cory said that he did not have the money, but that he had a TV set, several guns and some coins. Cory finallypaid Conn $50with quarters and fifty-centpieces. Maynard OwnsMedicine testified that he was with Cory in a Missoula bar on March 4. Cory asked him if he knew where he could get rid of some guns. Later that sameday, Owns Medicine saw several rifles and shotguns in the trunk of Cory's car.The testimony of these two men was impeached to a large degree. Conn had written a letter to his parole officer stating that he had not been in Montana from January untilMarch 31. Also, during this hearing Officer Weaver testified that he had questioned Maynard Owns Medicine concerning the Opalka's burglary. At the time of the questioning Maynard said nothing toWeaver about the guns in the trunk of Cory's car. At the end of the hearing the judge said: "No, I think asyou say, the Court has been lied to today. No furthermemorandums are required. The Motion for a new trial is denied." Sections 46-16-702(1), MCA, provides that a courtmay grant the defendant a new trial if required in the interest of justice. The language clearly indicates that the granting of a

new trial iswithin the sound discretion of the District Court judge. Montana case law is to the same effect. Statev. Collett (1946), 118Mont. 473, 481, 167P.2d 584, 588; State

### v. Greeno (1959), 135Mont. 580, 585, 342 P.2d 1052, 1055. This Court noted in Statev. Briner (1977), 173 Mont. 185, 193, 567 P.2d 35, 39, that the trial judge is 

### " 

# . .

# . in the best position to weigh the merits

# .. ."of the evidencewhich ispresented to support an application for a new trial. In thepresent case the trial judge felt that he had been lied to at the hearing on thematter. This Court shouldnot try to second-guess the trial judge in this regard. Because it does not appear that the trial judge abused his discretion, therewas no error committed in denying the application for

a new trial. The defendant next contends that the giving of instruction No. 20 was error. This instructionprovides: "Youare instructed that onewho is found in the possession of property that was stolen from burglarized premises is bound to explain suchpossession in order to remove the effect of that fact as a circumstance to be consideredwith all other evidence pointing to his guilt."Section 45-6-304,MCA, provides: "Possessionof stolenproperty shall not constitute proof of the commission of the offense of theft. Such fact shall place a burden on the possessor to remove the effect of such fact as a circumstance to be consideredwith all other evidence pointing to his guilt." The defendant argues that without the cautionarypreface the instructionwould allow the jury to convicthim of burglary upon proof that he possessed the stolenproperty. A similar instructionwas given in Statev. Greeno (1959),135Mont. 580, 590, 342 P.2d 1052, 1057. The instruction in Greenowas declared by this Court to be error because it deprived the defendant of his assumption of innocence. The instruction stated, in part, that: 

### " 

# .

# . . if he [the defendant] gives a false account of how he acquired thatpossession or, having reasonableopportunity to show that his possessionwas honestly acquired he refuses or fails to do so, such conduct is a circumstance that tends to show his guilt." The instruction from Greenowas clearly different than the

one in the present case. The Greeno instruction told the jury that a failure of the dzfmdant to testify would tend to show his guilt. InstructionNo. 20, in the present case,merely allows the jury to consider the defendant's possession of the stolen goods as one factor indicating the defendant'sguilt. In Statev. Gray (1968), 152Mont. 145, 447 P.2d 475, this Court again considered a similar instruction and made the following observations: 

### " 

# ...we think the better reasoned cases hold that such instructions are not erroneous or prejudicial. In a very recent case,Arizona v. Pederson, 102Ariz. 60, 424 P.2d 810 (1967) cert-denied389 U.S. 867, 88 S.Ct. 138, 19 L.Ed.2d 142, the lower court instructed the jury: "'The burden is onwho is found in the possession of property that was stolen fromburglarized premises to explain suchpossession in order to remove the effect of that fact as a circumstancetobe considered with all other evidence pointing to his guilt.' "TheArizona Supreme Court found no error in the instructionand went on to say at page 818 of 424 P.2d:"'Aswe read the subject instruction, it appears to state the law correctly for in effect the instruction says that if defendants had wished to remove the effect of possession of stolen goods from the facts and circumstances to be considered by the jury,defendants should have offered some explanation of their possession of such goods.' "Weagree. In effect all the instruction in question here says is that if defendantwanted to prevent the jury from considering possession as a circumstance indicating guilt, then he should,by testifying himself, by having another testify, or by introducing real evidence,explain his possession. The rule equally applies to all evidencewhich a defendant would remove as a circumstance pointing to his guilt; that is,he must by some means explain away such evidence." 152Mont. at 152, 447 P.2d at 478-79. The same reasoning applies in the instant case. The instruction told the jury that possession of the stolenproperty

wasmerely one item that they could consider in determining whether the defendant committed the crime. This is true of any evidence presented during the trial. The defendant is not obligated to explain away this circumstance,but if he wishes to do so, the opportunity is there. Thiswas an opportunitywhich the defendant elected to accept in this case. As such, the instructionwas not

error. Finally, the defendant alleges that he was denied effective assistance of counsel. The right to counsel is guaranteed by the SixthAmendment of the United States Constitution and by Article 11, section 24 of theMontana Constitution. This Court has said that these constitutional provisions guarantee effective assistanceof counsel. State

### v. Bubnash (1961), 139Mont. 517, 366 P.2d 155. In Statev. McElveen (1975), 168Mont. 500, 544 P.2d 820, this Court set aside a conviction because the defendant had been denied effective assistance of counsel. The defendant's trial attorney had done little or no investigation or preparation prior to trial. During the trial only two objections were made by the defense and one of thesehad been made by the defendant himself.In the McElveen case the Court used the "farceand sham test" to determine whether the defendant had been denied effective assistance of counsel. See Statev. Lopez (1980), Mont

# . I 605 P.2d 178, 37 St.Rep. 36. In the instant case the parties have urged us to adopt a different test. The new test is known

as the "reasonablyeffective assistance" test, andmay be stated

as follows: "Personsaccused of crime are entitled to the effective assistanceof counsel acting within the range of competencedemanded of attorneys in criminal cases." We hereby adopt this standard. The reasons for its adoption aremany. As was stated in Cooper v. Fitzharris (Ninth Cir. 1978), 586 F.2d 1325: 

### "A line of Supreme Court decisions,culminating in McMann v. Richardson, 397U.S. 759 

# .

# .. (1970), undercut the notion that the command of the Sixth Amendment was satisfied merely by appointment of a reputablemember of the bar and that counsel's performance after appointmentneed onlymeet due process standards. Itwas established that persons accused of crime are entitled not merely to counsel's presence but to effective assistanceof counsel, and that effective assistance means assistance

'within the range of competence demanded of attorneys in criminal cases.'" 586 F.2d 1329. The new standard,besides providing increased protection of the defendant's constitutionalright,also provides the courts with a more objective standard. The old "farceand sham test" required a subjective judgment whereas the new testmay be applied by reference to a more objective standard,viz. the range of competence demanded of attorneys in criminal cases. Finally,we are compelled to adopt this standard because theremay be instanceswhere the trial has not been a farce or

a sham and yet the defendant has not been represented within the range of competence demanded of attorneys in criminal cases. In such a case the defendantwould have been denied effective assistance of counsel, and the "farceand sham" standard would not have protected constitutional rights.In thepresent case the defendant has presented five specific failures committed by his trial attorney. In order for

us to find that the failures require reversalwe must be able to say that they are "errors a reasonable competentattorney acting

as a diligent conscientious advocatewould not havemade, for that is the constitutional standard." Cooper, supra, 586 F.2d

The first failure alleged by defendant is counsel's failure to object to hearsay evidence to the effect that the defendant had delivered to Stan Gardiner guns stolen from the Opalka residence. We agree that this was hearsay and should not have been put before the jury. We note,however, that prior to trial, defense counsel made a motion in limine to have this evidence excluded. The judge did not rule on the motion at that time, and subsequently,during trial, the evidence came in without objection. From this it is apparent that counsel had prepared for the case and had made the correctmotion. He should have objected to the hearsay evidence during trial,but this in itself does not fall outside of the range of competent counsel. Defendant next contends that itwas error for counsel to fail to object to the inquiry into a defensewitness'prior criminal record. Rule 609,Mont.R.Evid.,provides that for the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is not admissible. Once again,defense counsel should have objected to this testimony, however, in the context of this case, this failure does not appear as if itprejudiced the defendant. "When the claim of ineffective assistance of counsel rests upon specific acts and omissions of counsel at trial, as it does in this case, relief will be granted only if it appears that the defendantwas prejudiced by counsel's conduct. We have found no holding to the contrary." Cooper v. Fitzharris, supra, 586 F.2d at 1331.Also, in a case which involved at least a dozen witnesses and several days of testimony, this failure to object,by itself, does not fall outside of the range of competent counsel. The defendant next contends that defense counsel committed

error when he failed to object to t.hetestimony of a rebuttal witness, Craig Howard. Defense counsel did not receive notice of Howard's testimony. Secticn 46-15-301(1), MCA, provides th2t the Stateneed not provide the defendant with the names of rebuttal witnesses. In Wardius v. Oregon (1973),412 U.S. 470, 93 S.Ct. 2208, 37 L Ed 2d 82, the United States Supreme Court held that Oregon's statute requiring a defendant wishing to interpose a defense of alibi to furnish notice and a list of witnesses violated due process, because it did not provide reciprocaldiscovery for the defendant of the State's rebuttal witnesses. The defendant argues that counselwas ineffective in notmoving to exclude Howard's testimony in reliance on Wardius. In State v. Maldonado (1978), Mont. 

### , 578 P.2d 296, 304, 35 St-Rep.420, 430, this Court said that the decision 3f counsel to challenge the constitutionality of a statute is a matter of legal judgment. Counsel's failure to raise the Wardius issuemay seem like error in retrospect. This error, however, certainly does not fall outside of the range of competent counsel. Next, the defendant contends that defense counsel erred in not challenging a certain juror. On the last day of trial this juror informed the Court that he had been mistaken in denying acquaintancewith Richard Cory during voir dire. Apparently the juror and Cory's brother had been acquaintances 15 years prior to the trial. The juror stated that thiswould not influence him. This failure to challengewas not error. The defendant finally contends that defense counsel erred in notmoving to "quash" the information for lack of probablecause. The affidavit in support of themotion for leave to file relied to a large extent upon the hearsay allegations of Richard Cory. The defendant contends that counsel should have moved to "quash" because Cory's statementswere not supportedby facts tending to show their reliability under the rules announced in Aguilar 

### v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L Ed 2d 723. The Aguilar case is easily distinguishable from the case at hand. InAsuilar the defective affidavit concerned a search warrant rather than an affidavit in support of a leave to file an information. Also, in Aguilar, the application for the search warrant merely stated that "Affiantshave received reliable information from a credibleperson and do believe that" narcotics

were on the defendant'spremises. The problem with this application, according to the Supreme Court, was that the informant

was unnamed; that there were no underlying circumstancespresented fromwhich the informant concluded that the narcotics were where he claimed they were; and that there were no underlying circumstances which would support the unnamed informant's credibility. In the present case the informant isnamed as being Richard Cory and it is clear that Cory is speaking from his own personal knowledgeas to the defendant's involvement in the burglary. We

arenot, therefore,facedwith an application that lacks the underlying circumstanceswhich are required by Aguilar. Aguilar simplydoes not apply. Itwas not error for the defense counsel not to move to quash for lack of probable cause. We have read the record in this case. The defense counsel

was obviously prepared and competent. He did not do a perfect job,but that is not the standard. In Statev. Forsness (1972), 159Mont. 105, 110, 495 P.2d 176, 178-79, this Court said:"Claimed inadequacy of counselmust not be tested by a greater sophistication of appellate counsel, nor by that counsel's unrivaled opportunity to study the record at leisure and citedifferent tactics of perhaps doubtful efficacy. Success is not the test of efficient counsel, frequently neither vigor, zeal,nor skill can overcome the truth.

### " and in Statev. Noller (1963), 142Mont. 35, 38, 381 P.2d 293, 294: 

### " 

# . . .Hindsight cannotnow be used to say what perhaps could have been done to achieve a possible but highly speculative result

# ..." Despite the errorsmade by defense counsel, the defendant received effective assistance of cf:~ur.sel and this assistance

was well within the range of competence demanded of attorneys in criminal cases. Affirmed.

Chief Justice

Mr. Justice Daniel J. Shea deeming himself disqualified,did not participate in this case.