No. 88-364 

IR THE SIJPREME COURT OF THE STATE OF MONTANA 

1988 

WI1,LIAM GEORGE HARRIS, SR., 

Petitioner and Appellant, 

-vsSTATE OF MONTANA, 

Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Joseph Gary, ,:ridge presi-di ng. 

COUNSEL OF RECORD: 

Fox Appellant: 

William George Harris, Sr., pro se, Tempe, ~rizona 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Patricia J. Schaeffer, Asst. Atty. General, Helena 

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

Montana 

Submitted on Briefs: Sept. 29, 1988 

Decided: November 15, 1988 

Filed: 

Clerk 
Mr. Justice John 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, 

District Judge. 

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, 682 P.2d 185. 

In 1981, Carl Anderson, Doug Shuland and Thomas MichaelBriggs, 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 of August, 

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 for by 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 charged Harris with appropriating 

money contributed by Thomas Michael Rriggs. Finally, Count 

111 charged Harris with appropriating money loaned the 

company by Elsie Oliva, Joyce Anderson's mother. Petitioner 

was convicted on Counts 31 and 111. He was sentenced on June 
7, 1983 to serve two concurrent five year 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, 682 P.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 

agreement dated 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 for writ 

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's motion. An appeal 

to the Ninth Circuit Court of Appeals ensued, resulting in an 

affirmance on July 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 District Court. Harris did so on March 31, 1988. 

The matter was submitted to the lower court on briefs and 

affidavits pursuant to a stipulation waiving 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. 

overturn a conviction if prejudice can he 

shown by the suppression. 

Generally, suppressed evidence must be 

material to either guilt or punishment. . . . In order 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 show more 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, to vitiate a 

conviction. (Citations omitted.) 

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 files were available to the petitioner 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 the 
balance 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 seized by state agents. 

Fact: Petitioner was aware, or should have 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 appropriation of 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 

agreement existed. 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 Carl Anderson. 

Evidence is not withheld or suppressed if the 

petitioner had knowledge of the facts or 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 the materiality. 

The evidence could hardly be called exculpatory. The 

partnership agreement binds 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 agreement bind Elsie Oliua. Therefore, 
the counts which petitioner was convicted, Counts I1 and 111, 

remain unaffected by the "newly discovered" partnership 

agreement. The letters, though indicating Harris did legal 

work for the company, do not mention the fee arrangement, nor 

allude to a partnership agreement. We see no factual basis 

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 supporting memorandum thoroughly reviews the criteria to 

determine whether a new trial was 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 supports his position. 

We affirm. 

We concur: 

/