No. 13331 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsHAROLD ARMSTRONG, 

Defendant and Appellant. 

Appeal from: District Court of the Third Judicial District, 

Honorable Robert J. Boyd, Judqe presiding. 

Counsel of Record: 

For Appellant: 

Greg Skakles argued, Anaconda, Pontana 

For Respondent: 

Hon. Michael Greely, Attorney General, Helena, Montana 

Denny Iloreen, Assistant Attorney General, argued, 

Helena, Montana 

James J. Masar, County Attorney, Deer Lodge, Montana 

Submitted: Plarch 21, 1977 

Decided : APR -6 19TP 

Filed: BYR 

-- Clerk 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Defendant was convicted of an attempted escape from 

the Montana State Prison by jury verdict in the district court, 

Powell County. Honorable Robert J. Boyd, District Judge, denied 

defendant's motion for a new trial, entered judgment of conviction, and sentenced defendant to an additional term of three 

years in prison. Defendant now appeals from judgment of conviction. 

On May 21, 1975, defendant Harold Armstrong and another 

inmate of Montana State Prison were reported missing from the 

9:00 p.m. count. A search was instigated and they were located 

in a tunnel beneath the prison kitchen. Both inmates were wearing two sets of clothing. Two cut off shovels and two bottles 

of water were found in the tunnel. 

An information was filed in the district court, Powell 

County, on May 29 charging the two inmates with an attempted 

escape, a felony, in violation of section 94-4-103, R.C.M. 1947. 

Defendant moved for leave to represent himself and have a named 

attorney appointed as co-counsel. Defendant's motions, in 

effect, were granted. Defendant Armstrong entered a plea of 

"not guilty". He moved that " * * * the original copy of the 

Information, all evidence and papers and sworn statements from 

the State's witnesses" be furnished him. The county attorney 

indicated that he would provide defendant with whatever documents he had on the case. The record does not disclose that 

the district court ever formally ruled on defendant's motion. 

Thereafter defendant moved for severance of his trial 

from that of the other inmate. A separate trial was granted 

by the district court. 

Defendant's case came on for trial on November 17, 1975. 

Following the swearing of the jury, the opening statement by 
the state, and the reservation by defendant of his opening 

statement, the trial judge read an omnibus cautionary instruction to the jury substantially in the language of MJIG, Instruction No. 1.00. 

Evidence was received on behalf of both the state and 

defendant. Defendant took the witness stand in his own behalf 

and admitted being in the tunnel under the prison kitchen. He 

claimed he did not intend to escape but simply wanted to draw 

the attention of the people, and the court to his dissatisfaction 

with the services of his court-appointed attorney on appeal from 

his conviction for murder and robbery in the district court, 

Yellowstone County. 

During the course of the closing argument for the defense, 

defendant's attorney attempted to read a statement of the defendant to the jury as indicated by the following remarks: 

" * * * I will say that you can believe this 

from him, he has convinced me, and he did get the 

desired results because I am presently working on 

his appeal. Harold is quite an eloquent individual 

and last night he wrote down a few things, and I 

just don't like to read anything to a jury because 

it seems that it is put-on. He cannot understand 

of any plan that was ever presented by the State. 

He states that they presented no intent or an 

attempt to do anything. I think that they didn't 

present anything relative to the attempt unless 

it is guilt by location, or because it was attempt 

because he was down there -- 

"MR. MASAR: We object to the reading of anything 

that has been written by the Defendant as improper 

argument, the Defendant was on the witness stand 

and could have testified, and this is improper 

argument outside the issues and improper argument. 

"THE COURT: That is improper argument, Counselor." 

Thereafter defendant's attorney went on to argue other matters. 

Defendant was convicted, his motion for new trial was 

denied, a judgment of conviction was entered, and he was sentenced 

to a three year term to be served consecutively with the term of 

imprisonment he was then serving. Defendant appeals. 

Defendant assigns three specifications of error: 
(1) Error by the district court in refusing to permit 

co-counsel for defendant to read a statement from defendant 

to the jury during final argument. 

(2) Error by the district court in failing to rule on 

defendant's motion to produce all evidence, books, papers and 

sworn statements of state witnesses. 

(3) Error by the district court in reading the omnibus 

jury instruction to the jury prior to the reception of evidence. 

Directing our attention to the first issue, defendant 

contends that the refusal of the district court to permit his 

co-counsel to read defendant's statement to the jury constituted 

violation of his right to self-representation, a denial of 

assistance of counsel, and a prejudicial abuse of discretion. 

We are advised by counsel for defendant that the statement of defendant consisted of argument, not evidence, and although we do not have a copy of the statement, we are advised 

that it dealt with lack of criminal intent. 

Defendant's argument is based on the assumption that 

he should have had the right to address the jury himself in 

this case. This is not correct. Defendant's co-counsel had 

conducted the entire defense up to that point. There is no indication that defendant ever wished to participate in the opening statement, examination of witnesses, or argue before the 

judge or jury. Where a defendant is represented by counsel 

throughout the trial, he is not entitled, as a matter of right, 

to address the jury during closing argument. United States v. 

Dellinger, 472 F.2d 340 (1972), cert.den. 410 U.S, 970; State 

v. Brewer, 73 Wash.2d 58, 436 P.2d 473; Moore v. People, 171 

Colo. 338, 467 P.2d 50. Because defendant had no right to 

address the jury personally he had no right to have his note 

read to the jury. 

The second issue is whether the district court's failure 
to rule on defendant's motion to produce "the original copy of 

the information, all evidence and papers and sworn statements 

from the state's witnesses" constitutes reversible error. 

The record does not disclose that the judge ever ruled 

on the motion. As noted from what has been said heretofore, 

the county attorney agreed to provide defendant with whatever 

documents he had on the case. There is no complaint anywhere 

in the record by defendant that he did not receive these papers 

or that he was prejudiced in any way by the district court's 

failure to rule upon his motion. Any error which does not 

affect the substantial rights of the defendant constitutes 

"harmless error" and will not constitute~unds for reversal on 

appeal. Section 95-2425, R.C.M. 1947. Rule 14, M.R.App.Civ.P. 

Finally defendant contends that the district court committed error in reading the general omnibus cautionary instruction to the jury prior to the reception of evidence without 

giving him any opportunity to object, argue its validity, or 

settle it in the manner of settlement of jury instructions at 

the conclusion of the evidence. 

The giving of a preliminary jury instruction prior to 

the introduction of evidence is a common practice in the district courts of Montana and has been held proper in State v. 

McKenzie, Mont . , 557 P.2d 1023, 33 St.Rep. 1043, citing 

section 95-1911, R.C.M. 1947. 

Here defendant also failed to object to the giving of 

the preliminary instruction at any time thereafter during the 

trial. On appeal, this Court will not consider issues which 

defendant did not raise in the trial court. Spencer v. Robertson, 151 Mont. 507, 445 P.2d 48; Clark v. Worrall, 146 Mont. 

374, 406 P.2d 822; State Highway Comm'n v. Yost Farm Co., 142 

Mont. 239, 384 P.2d 277. 

The judgment of conviction is affirmed. 

Justice 

-5- 
Mr. Justice Daniel J. Shea, deeming himself disqualified, 

did not participate.