No. 87-427 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDONOVAN KEITH HURLBERT, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Seventeenth Judicial District, 

In and for the County of Phillips, 

The Honorable Leonard Langen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Daniel Donovan, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Paulson, Asst. Atty. General, Helena 

John C. McKeon, County Attorney, Malta, Montana 

Submitted on Briefs: March 24, 1988 

Decided: M~Y 23, 1988 

Filed: MAY 2 3 1988- 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Donovan Keith Hurlbert (Hurlbert) appeals his conviction 

in Phillips County District Court of attempted deliberate 

homicide. We affirm. 

Hurlbert was found guilty by a twelve person jury of 

attempted deliberate homicide in connection with a shooting 

incident in the parking lot of the Miner's Club Bar near 

Zortman, Montana on May 14, 1986. On May 13, 1986, 

twenty-eight year old Rex Martin (Martin) completed his work 

shift at a nearby mine and drove to the Miner' s Bar to 

celebrate his birthday. Martin arrived at the bar shortly 

after four o'clock that afternoon and proceeded to consume 

beer and some schnapps. Twenty-two year old Hurlbert arrived 

at the Miner's Club Bar at approximately eight o'clock that 

same evening. 

During the course of the evening at the Miner's Club 

Bar, Martin and Hurlbert argued several times about an 

incident that occurred in April of 1986 at the D-Y Bar 

located near Landusky, Montana. The April incident occurred 

while Hurlbert was working as a bartender at the D-Y Bar and 

involved Martin, Hurlbert, and several other bar patrons. 

The events of that April evening at the D-Y Bar culminated 

with Hurlbert and a bar patron forcibly evicting Martin from 

the bar. Martin's fingers were apparently severely smashed 

when a bar patron slammed the bar doors shut on one of 

Martin's hands. Martin re-entered the D-Y Bar long enough to 

accuse Hurlbert of causing the hand injury and to threaten 

retaliation. Martin's actions that April evening prompted 

the D-Y Bar's owner to ask Martin not to patronize the bar 

for thirty days. Martin later learned that Hurlbert was not 

responsible for the injury to his hand. 
Sometime after one o'clock in the morning of May 14, 

1986, and after more than five hours of drinking for both 

men, Hurlbert and Martin appeared to have settled their 

differences. The two men shook hands and each drank a beer 

purchased by Hurlbert. Martin then purchased a six-pack of 

Rainier, his favorite beer, for the road and the two men left 

within minutes of each other. Conflicting trial testimony 

was presented as to what happened outside of the bar. Martin 

testified that he walked to his pickup truck and was 

"fumbling" for his keys when he noticed Hurlbert motion for 

him to come over to Hurlbert's pickup truck. Martin 

testified that as he approached, Hurlbert entered his pickup, 

grabbed a twelve gauge shotgun from the seat, exited the 

pickup, turned and pointed the shotgun at Martin's abdomen. 

Martin contends that, as he turned to his right to flee, his 

flight was obstructed by the driver's side door of Hurlbert's 

pickup truck. Martin testified that Hurlbert fired the 

shotgun before he could turn around to run in the opposit 

direction. 

Hurlbert testified that Martin followed him to the 

driver's side of Hurlbert's pickup where the two men resumed 

their argument about the D-Y Bar incident as Hurlbert 

unlocked and opened the driver's side door. According to 

Hurlbert, Martin grabbed Hurlbert, threw him aside, and 

reached in and grabbed Hurlbert's shotgun from the gun rack 

in the back window of Hurlbert's pickup. In the ensuing 

struggle for control of Hurlbert's shotgun, Hurlbert contends 

that the shotgun accidentally discharged. 

After the shot, the Miner's Club bartender, Betty Veltri 

(Veltri), and a patron, Dain Hathaway (Hathaway), ran outside 

to find Martin shuffling back into the bar with bleeding 

arms. Veltri testified that she heard Martin exclaim "he 

(Hurlbert) shot me, he shot me." Vel-tri also testified that 
she had a short conversation with Hurlbert who, when asked 

what happened, exclaimed "he (Martin) tried to shoot me." 

Hurlbert testified that he also told Veltri to inform the 

sheriff's deputies when they arrived that he would be at the 

D-Y Bar. Veltri did not remember Hurlbert saying where he 

was going. Hathaway remembers Hurlbert and Veltri talking 

but does not remember what was said. All the witnesses 

agreed that Hurlbert left the Miner's Club parking lot in a 

hurry. Martin was seriously injured by the shotgun blast and 

his arms are permanently impaired and disfigured. 

The D-Y Bar is approximately twenty miles from the 

Miner's Club Bar. Upon arriving at the D-Y Bar, Hurlbert 

told the bartender, Debbie Baker, that Martin had tried to 

shoot him and that the shotgun discharged accidentally in the 

struggle for control. Hurlbert then called the Phillips 

County Sheriff 's office to report an accidental shooting and 

to inform them of his whereabouts. The sheriff's deputies 

investigated the crime scene for three hours before going to 

the D-Y Bar to arrest Hurlbert. During that time, Hurlbert 

telephoned the Miner's Club Bar several times to find out 

when the deputies would arrive at the D-Y Bar. When 

arrested, Hurlbert voluntarily gave the sheriff's deputies a 

statement about his involvement in the shooting incident. 

Martin was severely injured in the lower portions of his 

left and right forearms and has incurred over $90,000 in 

medical expenses as a result of the shooting. In its amended 

information of September 3, 1986, the State of Montana (the 

State) accused Hurlbert of attempted deliberate homicide with 

a dangerous weapon pursuant to 5 45-5-102(1) (a), 5 45-4-103, 

and 5 46-18-221, MCA. Hurlbert pled not guilty and gave the 

State notice that he intended to present evidence of 

justifiable use of force as a defense. 
A jury trial commenced on February 9, 1987, and 

culminated with Hurlbert's conviction on February 12, 1987. 

On June 10, 1987, the District Court sentenced Hurlbert to 

fifteen years confinement in the Montana State Penitentiary 

for attempted deliberate homicide with an additional five 

years to be served consecutively for the use of a dangerous 

weapon. The District Court suspended eight years of 

Hurlbert's twenty year sentence, designated him a 

non-dangerous offender, and recommended that he be allowed to 

serve the balance of his confinement at the Montana 

Department of Institutions' Swan River Forest Camp. Hurlbert 

appeals from the judgment and sentence imposed upon him and 

raises the following issues for our review: 

1. Did Hurlbert receive effective assistance of 

counsel? 

2. Did the District Court err in instructing the 

jury on the issue of "flight" from the scene of the 

crime? 

In his first issue, Hurlbert alleges that his defense 

counsel was ineffective for the following reasons: 

1. Defense counsel failed to effectively test the 

credibility of the State's witnesses. 

2. Defense counsel failed to offer instructions on 

the theory of the defense. 

3. Defense counsel did not adequately prepare for 

the sentencing hearing. 

This Court reviews issues of ineffective counsel under the 

standards set forth in Strickland v. Washington (1984), 466 

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. State v. Johnson 

(Mont. 1986), 719 P.2d 771, 773, 43 St.Rep. 913, 916. The 

Strickland standards are that the defendant must first "show 

that counsel's performance was deficient," and then must 
"show that the deficient performance prejudiced the defense." 

Strickland, 466 U.S. at 687. We have reviewed numerous 

claims of ineffective counsel under a myriad of circumstances 

and recognize that the burden is heavy on a defendant who 

seeks to reverse a judgment on such grounds. State v. 

LaValley (1983), 203 Mont. 393, 398, 661 p.2d 869, 872. 

To begin with, this Court will not second guess the 

trial tactics of defense counsel. State v. Tome (Mont. 

1987), 742 P.2d 479, 482, 44 St.Rep. 1629, 1632; State v. 

Brown (Mont. 1987), 741 P.2d 428, 430, 44 St.Rep. 1462, 1464. 

Furthermore, a claim of ineffective counsel must be grounded 

in facts found in the record, not on "mere conclusory 

allegations." Tome, 742 P.2d at 482. Defense counsel's use 

of objections during trial lie within his or her sound 

discretion and failure to object must, in addition to being 

error, also prejudice the defendant. Brown, 741 P.2d at 430; 

State v. Probert (Mont. 1986), 719 P.2d 783, 786, 43 St.Rep. 

In adopting the Strickland standards, we also recognized 

that any alleged error by defense counsel must be shown to 

prejudice the defendant before reversal will be warranted. 

State v. Robbins (Mont. 1985), 708 P.2d 227, 43 St.Rep. 1440 

(citing Strickland). Robbins sets forth what the defendant 

must show in order to establish prejudice: 

The defendant must show that there is a 

reasonable probability that, but for 

counsel's unprofessional errors, the 

result of a proceeding would have been 

different. A reasonable probability is a 

probability sufficient to undermine 

confidence in the outcome. 

Robbins, 708 P.2d at 232. 

Defense counsel's decision not to extensively 

cross-examine certain witnesses in this case was a tactical 
decision within his discretion. Hurlbert contends that 

defense counsel should have cross-examined Martin as to his 

version of the shooting to point out improbable, inconsistent 

and confusing facts in Martin's story. However, defense 

counsel sufficiently attacked Martin's testimony in his 

closing argument. Defense counsel also solicited evidence 

from Hurlbert and other witnesses that tended to conflict 

with Martin's story. We recognize that it is sometimes a 

more prudent trial tactic to indirectly attack a witness' 

testimony through the testimony of other witnesses and in 

closing arguments rather than to put undue emphasis on one 

witness' version with extensive cross-examination. Whether 

defense counsel consciously chose one of the above methods 

over the other as a trial tactic is not only subject to 

speculation, but is also immaterial to the issue of his 

performance at trial. The bottom line is that Hurlbert was 

not prejudiced because defense counsel did an adequate job in 

pointing out the difference between Martin's testimony and 

Hurlbert's testimony in his closing argument and through the 

testimony of other witnesses. In the final analysis, it was 

for the jury to decide whose story was plausible and 

believable. Any shortcomings in Martin's testimony could 

either have been readily apparent to the jury or were 

sufficiently pointed out by defense counsel during the course 

of the trial. 

Hurlbert next contends that defense counsel erred in not 

submitting a "justifiable use of force" or "self defense" 

instruction to the jury. Hurlbert gave notice before trial 

of his intention to submit evidence of justifiable use of 

force. During the settling of jury instructions, defense 

counsel refused to submit a proposed instruction regarding 

justifiable use of force even though both the State and the 

District Court appeared receptive to such an instruction. 
The record reflects that defense counsel believed that the 

defenses of accident and justifiable use of force were 

inconsistent with each other and that a justifiable use of 

force instruction was inconsistent with the evidence. 

Defense counsel again exercised his tactical discretion and 

elected to defend on a theory of accidental shooting. 

Hurlbert argues that defense counsel was mistaken in his 

belief that accident and justifiable use of force are 

inconsistent defenses that cannot be argued simultaneously. 

In response, the State points out that the evidence does not 

support a justifiable use of force instruction and contends 

that defense counsel's decision not to rely on such a defense 

does not constitute ineffective assistance. We agree with 

the State. The evidence presented at trial clearly shows 

that Hurlbert could not have reasonably believed that he was 

justified in using force likely to cause death or serious 

bodily harm (shooting Martin with a twelve-gauge shotgun). 

See §S 45-3-101 et seq., MCA (statutes governing justifiable 

use of force). Defense counsel's refusal of an instruction 

based on a defense not supported by the record did not deny 

Hurlbert effective assistance of counsel. State v. Docken 

(Mont. 1986), 720 P.2d 679, 680, 43 St.Rep. 1058, 1061. 

As to Hurlbert's third contention of error regarding 

defense counsel's lack of skill, we are not convinced that 

defense counsel committed any error nor are we convinced that 

Hurlbert was prejudiced. Hurlbert alleges that defense 

counsel should have challenged two members of the jury panel 

for cause because these people were related by marriage to 

one of the investigating sheriff's deputies. However, the 

State is correct in its assertion that this particular 

relationship to an investigating officer is not sufficient, 

absent a showing of impartiality, to challenge for cause. 

State v. Hendricks (1976), 171 Mont. 7, 11, 555 P.2d 743, 
746; S 46-16-304, MCA. The State's attorney questioned each 

of the two individuals as to whether their relationship to 

the investigating officer would prohibit them from being fair 

and impartial jurors. Each person answered that they would 

be fair and impartial. One of the prospective jurors that 

Hurlbert now complains about was not chosen to be a juror. 

The other person was a juror, but Hurlbert has failed to show 

any impartiality or resultant prejudice associated with this 

person's deliberations. 

Hurlbert also questions the impartiality of a third 

juror who, before voir dire had commenced, indicated to the 

judge that she might be opinionated. This juror was cut off 

in mid-sentence by the judge who indicated that she should 

wait for voir dire. Defense counsel later questioned this 

woman and discovered that, while she knew Rex Martin's 

parents, she still felt she could be impartial. Again, 

defense counsel was not ineffective in not challenging a 

juror for cause where no partiality or prejudice has been 

shown. 

The remainder of Hurlbert's assertions of error 

regarding defense counsel's trial skills deal with alleged 

failure to object and failure to adequately cross-examine 

witnesses. These alleged "failures" could just as easily be 

classified as discretionary trial tactics. We reiterate that 

defense counsel's use of objections is within his discretion 

as trial tactics. Brown, 741 P.2d at 430; Probert, 719 P.2d 

at 783. More importantly, Hurlbert has failed to show any 

resultant prejudice. We will not second guess defense 

counsel's tactics absent a showing of prejudice. 

In his final contention of ineffectiveness, Hurlbert 

asserts that defense counsel did not adequately prepare for 

the sentencing hearing. Hurlbert first alleges that defense 

counsel failed to marshall essential evidence to convince the 
District Court that Hurlbert should be sentenced to a 

jail-based work release sentence. The State insists that the 

record of the sentencing hearing indicates that defense 

counsel prepared extensively for the hearing and presented 

adequate testimony and evidence regarding a jail-based work 

release program. Our review of the record indicates that the 

State is correct and that defense counsel was not ineffective 

at the sentencing hearing. 

Hurlbert also argues that defense counsel was 

ineffective at the sentencing hearing because he failed to 

challenge the applicability of mandatory minimum sentencing. 

The State argued at the sentencing hearing that the mandatory 

minimum sentence for the offense of deliberate homicide (ten 

years) applied to the offense of attempted deliberate 

homicide. Defense counsel challenged the State's position in 

this regard on different grounds than those now argued by 

Hurlbert on appeal. Again, we refuse to second-guess defense 

counsel's trial tactics. 

Hurlbert also requests that we remand for resentencing 

on the grounds that the District Court erred in believing 

that a mandatory minimum sentence applied. We note that 

perpetrators of attempt crimes may be sentenced up to the 

maximums provided for the offense attempted. Section 

45-4-103 (3), MCA. We review sentences for legality only and 

will not disturb a District Court's sentencing decision 

absent a showing that the District Court abused its 

discretion. State v. Almanza (Mont. 1987), 746 P.2d 1089, 

1090-91, 44 St.Rep. 2064, 2067. Hurlbert's sentence is well 

within the legal limits for the offense charged and we will 

not remand for resentencing as he has asked on this appeal. 

Having found no evidence of defense counsel's ineffectiveness 

or prejudice to Hurlbert, we hold that Hurlbert received 

effective assistance of counsel. 
In his final issue, Hurlbert argues that the ~istrict 

Court erred in giving the following jury instruction: 

You are instructed that you may take into 

consideration any testimony showing, or 

tending to show, flight or concealment by 

the defendant. The testimony may be 

considered by the jury as a circumstance 

tending to prove a consciousness of 

guilt, but is not sufficient of itself to 

prove guilt. The weight to be given to 

such a circumstance and the significance, 

if any, to be attached to it, are matters 

for the jury to determine. 

Defense counsel objected to the use of this instruction at 

trial on the grounds that the uncontradicted evidence was 

that Hurlbert made no attempt to leave or conceal his 

whereabouts for the purpose of evading arrest. 

The above instruction is almost identical to the 

instruction this Court approved in State v. Walker (1966), 

148 Mont. 216, 225, 419 P.2d 300, 305. As in Walker, the 

evidence in the instant case was sufficient to support the 

giving of the instruction on flight. Hurlbert contends that 

he did not attempt to evade arrest as evidenced by his 

telling Betty Veltri where the sheriff's deputies could find 

him and by his repeated telephone calls to the Miner's Club 

Bar from the D-Y Bar. However, as was the case in Walker, it 

was a matter for the jury to decide whether it believed 

Hurlbert's explanation for leaving the scene of the crime. 

Walker, 419 P.2d at 306. Hurlbert admitted leaving the 

Miner's Club Bar after the shooting and several witnesses 

testified that he left in a hurry. We hold that the District 

Court did not commit reversible error in giving the 

instruction on "flight" based on the evidence in this case. 

Hurlbert has failed to show that defense counsel was 

ineffective according to the standards set forth in 

Strickland. His sentence was within the legal limits for the 
offense and was not an abuse of the District Court's 

discretion. the evidence tended to show that Hurlbert left 

the scene of the crime and the jury was properly instructed 

on the issue of "flight." Accordingly, we affirm the 

District Court's judgment and sentence as to all issues 

presented on this appeal. 

Affirmed. 

ustice 

We Concur: / P