No. 13331 INTHE 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:

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-- ClerkMr. Justice Frank I. Haswell delivered the Opinion of the Court.

Defendant was convicted of an attempted escape from theMontana State Prisonby jury verdict in the district court, Powell County. Honorable Robert J. Boyd,DistrictJudge,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 Prisonwere reported missing from the 9:00 p.m. count. A searchwas instigated and they were located in a tunnel beneath the prison kitchen. Both inmateswere wearing two sets of clothing. Two cut off shovels and two bottles of water were found in the tunnel. An informationwas filed in the district court, Powell County, onMay 29 charging the two inmateswith an attempted escape, a felony, inviolation of section 94-4-103,R.C.M. 1947. Defendantmoved for leave to represent himself and have a named attorney appointed as co-counsel. Defendant's motions, in effect,were granted. DefendantArmstrong entered a plea of "notguilty". Hemoved that 

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## * * * 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 defendantmoved 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 onNovember 17, 1975. Following the swearing of the jury, the opening statementbythe state,and the reservationby defendant of his opening statement, the trial judge read an omnibus cautionary instruction to the jury substantially in the language of MJIG, InstructionNo. 1.00. Evidencewas received onbehalf 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 simplywanted 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 formurder 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 indicatedby the following remarks: 

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## * * * Iwill say thatyou canbelieve this from him, he has convincedme, and he did get the desired resultsbecause I ampresently 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 isput-on. He cannot understand of any plan thatwas 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 itwas 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 Defendantwas on the witness stand and could have testified, and this is improper argument outside the issues and improper argument. "THECOURT: That is improper argument,Counselor." Thereafter defendant's attorneywent on to argue othermatters. Defendantwas convicted,his motion for new trialwas denied, a judgment of convictionwas entered, and he was sentenced to a three year term to be served consecutively with the term of imprisonmenthewas 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 fromdefendant 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 statewitnesses. (3)Error by the district court in reading the omnibus jury instruction to the jury prior to the receptionof evidence. Directing our attention to the first issue, defendant contends that the refusal of the district court topermit 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 althoughwe 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 isno indication that defendant ever wished toparticipate 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 Statesv. Dellinger, 472 F.2d 340 (1972), cert.den. 410 U.S, 970; State

v. Brewer, 73Wash.2d 58, 436 P.2d 473; Moore v. People, 171 Colo. 338, 467 P.2d 50. Because defendanthad no right to address the jury personally he had no right to have his note read to the jury. The second issue iswhether the district court's failureto rule on defendant's motion to produce "theoriginal copy of the information,all evidence and papers and sworn statements from the state'switnesses" constitutes reversible error. The record does not disclose that the judge ever ruled

on themotion. As noted fromwhat 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 evidencewithout giving him any opportunity to object, argue itsvalidity, or settle it in the manner of settlementof jury instructions at the conclusion of the evidence. The giving of a preliminary jury instructionprior 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, 151Mont. 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.