NO. 89-361 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

plaintiff and Respondent, 

-vsDARREN KOLBERG, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Seventh ~udicial District, 

In and for the County of Dawson, 

The Honorable Roy ~odeghiero, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Channing J. ~artelius, Hartelius, Ferguson & Baker, 

Great Falls, Montana 

For Respondent: 

Hon. Marc ~acicot, Attorney General, Helena, Montana 

~atricia J. Schaeffer, Asst. Atty. General, Helena 

Richard A. Simonton, County Attorney; Gary ~alkstein, tcy .Beputy, ~lendive, Montana 

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-i Submitted on ~riefs: Dec. 1, 1989 

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(-3 ., - Decided: January 17, 1990 z -- c (2 -2 U 

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Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant, Darren Kolberg, was charged in the District Court 

for the Seventh Judicial District, Dawson County, with the 

misdemeanor offense of Driving Under the Influence of Alcohol, 

Third Offense, in violation of S61-8-401, MCA. The jury found him 

guilty as charged. Defendant appeals. We affirm. 

The two issues for our consideration are: 

1. Was defendant denied his Sixth Amendment Right to 

effective assistance of counsel? 

2. Whether prosecutorial misconduct occurred during the 

trial? 

On July 23, 1988, while on patrol, officers Moccasin and 

Barsotti observed the vehicle driven by defendant weaving across 

the center line a number of times as it was driven down the streets 

of Glendive, Montana. Officer Moccasin testified that they 

followed the vehicle for more than three blocks before they decided 

to stop the defendant. 

When Officer Moccasin approached defendant and asked for his 

license, he smelled a strong odor of alcohol on defendant Is breath. 

Officer Moccasin requested defendant to perform various sobriety 

tests. First he asked defendant to say the alphabet. Defendant 

only made it to the letter I1Gl1 before he started having trouble, 

and then stopped at I1Jl1. Officer Moccasin testified that 

defendant's speech was slurred, his eyes were bloodshot, he acted 

confused and he could not keep his balance very well. The officer 
then asked defendant to do a one leg stand. Defendant told him 

that he had broken his leg and it was not healed yet, so Officer 

Moccasin requested he do a "walk and turnw instead. Officer 

Moccasin testified defendant was unable to keep his balance and 

failed that test. 

At that point, Officer Moccasin called another officer who 

was qualified to perform a "horizontal gaze nystagmus testnt on 

defendant. Officer Benson testified he performed the test and that 

defendant failed. Officer Benson concluded that defendant was 

driving while under the influence. Defendant was then placed under 

arrest and read his Miranda rights. 

An information was filed on August 2, charging defendant with 

Driving Under the Influence of Alcohol (DUI) , Third Offense, in 

violation of 561-8-401, MCA. Defendant pled not guilty to the 

charge. After a trial, the jury convicted him of the charged 

offense. Defendant appeals. 

I 

Was defendant denied his Sixth Amendment Right to effective 

assistance of counsel? 

Defendant contends that he was ineffectively represented at 

trial by his attorney, Mr. Halvorson. He claims Mr. Halvorson 

failed to timely notify him of trial; failed to properly voir dire 

the jury; improperly consented to informing the jury that he was 

charged with DUI, third offense; improperly introduced a police 

report into evidence; and failed to move for dismissal for the 

State's failure to prove venue. 
Defendant sent a letter to the District Court informing it 

that he had not been notified of trial until 24 hours prior to the 

trial. He maintained he had not had time to consult with his 

attorney, nor contact two witnesses due to such lack of notice. 

Mr. Halvorson sent a letter to defendant's last known address 

informing him of the trial date. Defendant was having his mail 

forwarded. The letter was never returned to Mr. Halvorson and 

defendant testified he did not receive it. A lengthy in camera 

discussion between counsel and the judge was held the morning of 

the trial regarding defendant's letter to the judge alleging lack 

of notice. The record reveals that the defense called two 

witnesses and chose not to call a third. Although no motion was 

made for a continuance, the District Court concluded that there 

were not sufficient grounds to grant a continuance and that Mr. 

Halvorson was sufficiently prepared to proceed with trial. We 

agree. Defendant has failed to show any prejudice by lack of 

notice. The record reveals that defense counsel carefully 

considered the potential value of the third witness and decided it 

best not to call him. In State v. Leavens (1986), 222 Mont. 473, 

723 P.2d 236, we held that: 

a decision on whether to call a witness is a matter of 

trial tactics, which are normally not grounds for a 

determination that counsel's performance was deficient. 

We conclude Mr. Halvorson was prepared for trial, and that 

defendant failed to show any prejudice as a result of his not 

receiving notice of trial. 

Defendant maintains that the asking of only one question by 
his counsel during voir dire was inadequate. The record reveals 

that there was extensive and thorough voir dire by the State. As 

the State points out, jury voir dire is a very subjective process. 

The purpose of voir dire in a criminal proceeding is to 

determine the existence of bias and prejudice on the part 

of prosepective jurors and to enable counsel to 

intelligently exercise their pre-emptory challenges. 

Any questioning conducted to establish rapport or to 

educate the jury is extraneous to the legitimate objects 

of voir dire. (Citations omitted.) 

State v. Brodniak (1986), 221 Mont. 212, 718 P.2d 322. There is 

no set number of questions counsel is required to ask of the 

jurors. If counsel can intelligently exercise pre-emptory 

challenges from the questions which have been asked, the purpose 

of voir dire has been fulfilled. The record reveals that Mr. 

Halvorson made his pre-emptory challenges. We conclude from the 

record that the voir dire was adequate. 

Defendant maintains it was prejudicial to allow defense 

counsel to inform the jury that he was charged with his third 

offense DUI, and to stipulate to his two prior DUI convictions. 

The State points out that both counsel and the court erroneously 

proceeded as though the two prior DUI convictions were elements of 

this offense. Prior DUI convictions are actually elements to be 

presented for sentencing to determine the maximum sentence that can 

be imposed. See State v. Campbell (1980), 189 Mont. 107, 615 P.2d 

190. They are not an element of the crime. 5561-8-401 and 61-8- 

714(3), MCA. However, in view of the mistake on the part of both 

counsel and the judge that the prior convictions were elements of 
this offense, we conclude that the inadvertent disclosure to the 

jury was not prejudicial. We conclude that the mention of the 

prior DUIts to the jury does not constitute ineffective assistance 

of counsel. In addition, we emphasize that the record contains 

overwhelming evidence against the defendant and almost a total 

absence of any evidence to the contrary. 

We conclude that defendant's claims as to the introduction of 

the police report and Mr. Halvorsont s failure to move for dismissal 

for the State's failure to prove venue are without merit. In State 

v. Stewart (Mont. 1988), 767 P.2d 296, 45 St.Rep. 2350, we stated: 

Ineffective assistance of counsel requires specific acts 

or omissions which prejudice defendant s case and result 

in the denial of a fair trial. . . First the defendant 

must show that counsel's performance was deficient. This 

requires showing that counsel made errors so serious that 

counsel was not functioning as the counsel guaranteed the 

defendant by the Sixth Amendment. Second, the defendant 

must show that the deficient performance prejudiced the 

defense. . . . To show prejudice, a defendant must show 

that, but for counsel's unprofessional errors, there was 

reasonable probability that the result of the proceeding 

would have been different. A reasonable probability is 

a probability sufficient to undermine confidence in the 

outcome of the trial. (Citations omitted.) 

Defendant has failed to show such prejudice. We hold that 

defendant was not denied his Sixth Amendment Right to effective 

assistance of counsel. 

Whether prosecutorial misconduct occurred during the trial? 

Defendant maintains that the prosecutor intentionally violated 

a court order on admissibility of an admission, and intentionally 

disobeyed a court order on discovery. Defendant claims that after 

the District Court ruled that statements of defendant at the scene 
were inadmissible, the county attorney solicited the same 

statements from Officer Benson when he responded that Mr. Kolberg 

said he "had a few drinks1'. As pointed out by the State, the 

court properly admonished the jury to disregard this statement. 

An error in the admission of evidence may be cured if the jury is 

admonished to disregard it. State v. Conrad, No. 89-198, slip op. 

(Mont. 1989). Defendant's claim regarding failure to comply with 

discovery is without merit. We hold that no prosecutorial 

misconduct occurred during the trial. 

Affirmed. 

We Concur: 

- Justices