No. 88-364
IR THE SIJPREME COURT OF THE STATE OFMONTANA 1988

WI1,LIAM GEORGE HARRIS, SR., Petitioner and Appellant,-vsSTATE OFMONTANA, Respondent.

APPEAL FROM: DistrictCourtof the FourthJudicialDistrict, In and for the Countyof Missoula, The HonorableJoseph Gary, ,:ridge presi-di ng. COUNSEL OF RECORD: Fox Appellant: WilliamGeorgeHarris, Sr., pro se, Tempe, ~rizona
For Respondent:
Hon. MikeGreely, AttorneyGeneral, Helena, Montana PatriciaJ. Schaeffer, Asst. Atty. General, Helena RobertL. Deschamps, 111, CountyAttorney, Missoula, Montana

Submittedon Briefs: Sept. 29, 1988 Decided: November 15, 1988 Filed:

ClerkMr. JusticeJohn Conway Harrison delivered the Opinion of the Court.

This case comes on appeal from a denial of a petition for post-conviction relief by the Fourth Judicial District Court, Missoula County, the Honorable Joseph R. Gary, District Judge, sitting for the Honorable James B. Wheelin, DistrictJudge. The petitioner, William George Harris, Sr., was originally convicted 

### by iury trial on two of three counts of of felony theft. Because we have once reviewed this case on appeal, we will only briefly discuss the facts surroundinq his original conviction. See, State v. Harris (19841, ?LO Mont. 382, 682P.2d 185. In 1981, Carl Anderson,Doug Shuland and ThomasMichaelBriggs, with the legal advice 

### of their attorney, William George Harris, Sr., formed the Go Devil Hotshot Company, Inc., to provide expedited delivery service of needed parts to oil fields. Between June, 1981 and the middle ofAugust, 1981,petitioner received approximately $21,000 from various contributors to be used on behalf of the newly formed business. Harris deposited $6,000 into a company bank account, and used approximately $9,000 to cover business expenses. The remainder of the contributions,approximat-ely $6,000,could not be accounted forby petitioner. On June 1, 1982, petitioner was charged with three counts of felony theft. Count I charged Harris with appropriating money owned by Carl Anderson, Joyce Anderson and Doug Shuland. Count I1 chargedHarris with appropriating money contributed by Thomas Michael Rriggs. Finally, Count 111 charged Harris with appropriating money loaned the company by Elsie Oliva, JoyceAnderson's mother. Petitioner
was convicted on Counts 31 and 111. Hewas sentenced on June7, 1983 to serve two concurrent fiveyear terms, all of which
were suspended except for 90 days, and placed on probation. In addition, petitioner was ordered to pay a $5,000 fine to the clerk of court and $5,000 restitution. Upon motion of petitioner, the District Court issued an order staying execution of judgment pending appeal. This Court affirmed the District Court's conviction, rejecting petitioner's argument that his conviction resulted from the use of perjured testimony. Harris, 682P.2d 185. On March 7, 1985, petitioner alleges he received by U.S. Mail a large and unidentified envelope containing a document and letters indicating the State of Montana used perjurious testimony and concealed exculpatory evidence in order to obtain the original felony theft convictions. The items included photocopies of an undated, unsigned letter to former Chief Justice Haswell, 

### a purported partnership agreementdated March 3, 1981,and eight letters. Petitioner argues these items were concealed from him during trial, resulting in a denial of due process and mandating a new trial.On March 19, 1985,petitioner filed a petition forwrit of habeas corpus in the Federal District Court in Arizona. The State of Montana responded with a motion to dismiss for failure to exhaust state remedies on claims raised by the petition. The court granted the State'smotion. An appeal to the Ninth Circuit Court ofAppeals ensued, resulting in an affirmanceonJuly 28, 1986. A petition for post-conviction relief was filed with this Court on October 13, 1987. After a response filed by the State, this Court dismissed the petition with leave to file in the DistrictCourt. Harris did so onMarch 31, 1988. The matter was submitted to the lower court on briefs and affidavitspursuant to a stipulationwaiving a hearing on the

### matter. The District Court entered its order May 11, 1988 denying relief. From this denial, the petitioner appeals. We affirm. The standard in Montana for intentional or negligent suppression of evidence was enunciated in the case of State
v. Craig (1976), 169 Mont. 150, 153, 545 P.2d 649, 

### 651, holding: Only intentional or deliberate suppression of evidence is a per se violation of due process sufficient to reverse or nullify a conviction. 

# .. Negligent or passive suppression will. overturna conviction ifprejudice canhe 

### shownby the suppression. Generally, suppressed evidence must be 

### material to either guilt or punishment.



# .

# .. Inorder to amount to denial of due process, negligently suppressed evidence must be vital to the defense of the accused.

# .. To obtain a new trial, the accused must showmore than suppression; he must show the evidence was material and of some substantial use to him.

# .. The suppressed evidence must be exculpatory, i.e., would have tended to clear the accused of guilt, tovitiate a conviction. (Citationsomitted.) Petitioner spends a large portion of his brief educating this Court on the definitions of "concealment" and "possession." However, citations to Black's Law and Websterls International Dictionaries do not lend factual support to his argument. The facts indicate neither intentional nor negligent suppression of evidence. To illustrate: Fact: the fileswere available to thepetitioner prior to trial, as evidenced by 

### the affidavit by the Missoula County Attorney, Robert 

### L. Deschamps, 111. 

### Petitioner readily admits in his brief that the State turned over thebalance of documents in its offices, as per their oral discovery agreement. Fact: the letters and purported partnership agreement were documents of Go Devil Hotshot Service Company, Inc., and
were made available at corporate offices at all times prior to trial. No evidence indicates the files in question were
ever searched or seizedby state agents. Fact: Petitionerwas aware, or shouldhave been aware, of these documents at trial. This knowledge is evident from petitioner's own signature on the alleged partnership agreement,purporting to authorize the appropriationof funds from which petitioner was convicted of theft charges. It is highly unlikely petitioner could have forgotten this agreement, and yet at trial, he testified no written agreementexisted. No request for production of the document appears on the record, nor was testimony presented as to its loss or destruction. Now, petitioner baldly asserts it was withheld by the State. Also, seven of the eight letters were written by the petitioner to CarlAnderson. Evidence is not withheld or suppressed if the petitionerhad knowledgeof the factsor circumstances,or if the facts become available to him during trial. State v. Kirkland (1979), 184 Mont. 229, 243, 602 P.2d 586, 595. While this knowledge completely dismisses petitioner's argument as to suppression, we go one step further and examine themateriality. The evidence could hardly be called exculpatory. The partnership agreementbinds only Harris,Anderson and Shuland to the "fees earned when paid" arrangement. Petitioner was acquitted of the charge involving Anderson and Shuland. The fact Briggs later read and approved the agreement onlv acknowledges the partnership, it does not bind him to the terms. Nor could the agreementbind Elsie Oliua. Therefore,the countswhich petitionerwas convicted, Counts I1 and 111, remain unaffected by the "newly discovered" partnership agreement. The letters, though indicating Harris did legal work for the company,donotmention the fee arrangement,nor allude to a partnership agreement. We see no factualbasis for petitioner's claimed exculpatory use of the evidence. State v. Atlas (Mont. 1986), 728 P.2d 421, 43 St.Rep. 2042. Finally, petitioner claims the lower court acted vindictive and biased in its review of his post-conviction petition. We fail to see any indication of such behavior. On the contrary, the lower court acknowledged the serious nature of petitioner's charges. The District Court's order and supportingmemorandum thoroughly reviews the criteria to determine whether a new trialwas warranted, State v. Greeno

(1959), 135 Mont. 580, 342 P.2d 1052, and upon this basis, found petitioner's charges without merj-t. Substantial evidence supportshisposition. We affirm.

We concur: /