STATE v FIELD
Annotate this Case
Download PDF
No. 83-247 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985 STATE OF MONTANA, Plaintiff and Respondent, -vsCHESTER FIELD, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Douglas Harkin, Judge presiding. COUNSEL OF RECORD: For Appellant: Morales, Volinkaty Missoula, Montana & Harr; Richard Volinkaty, For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Robert L. Deschamps, County Attorney, Missoula, Montana; Karen Townsend, Deputy County Attorney Submitted on Briefs: Jan. 31, 1985 ~ecided: April 8, 1985 &PA Filed:. 8 -- '985 Clerk Mr Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal by the appellant, Field, from a conviction of felony theft by a iury trial in the Fourth Judicial District, in and for the County of Missoula, State of Montana. This case is in two parts in view of the fact that following the appellant's conviction of a felony, an appeal was taken with new counsel who alleged that the District Court erred in determining that defendant had not been denied a constitutional right to a fair trial and to have effective assistance of counsel at the trial stage. This Court in an order dated November 14, 1983, remanded the cause to the District Court for a hearing to determine whether the appellant's claim of ineffective assistance of counsel, particularly with regard to his failure to call a witness, Dave Wedell, was a denial- of effective assistance of counsel. We directed the trial court to hold an evidentiary hearing on the issue of ineffective assistance of counsel a.nd to enter findings of fact and conclusions of law. We will first discuss the original conviction which was for a felony theft that occurred either on September 4 or September 5, 1982, when a jackhammer and other construction equipment was stolen from a construction site near Turah Bridge in Missoula County, Montana. Shortly after this theft was reported and investigated, Detective Tom Woods of the Missoula County Sheriff Is Office received information that the appellant had in his possession the items which had been stolen from the construction site and was attempting to sell them. Detective Woods called the appellant and, using an assumed name, said that he understood that the appellant had a jackhammer for sale and that he (Woods) was interested in seeing it. Woods and the appellant agreed to meet at a convenience store parking lot in Lolo, Montana on September 20, some two weeks after the theft occurred. Prior to a meeting with the appellant in the parking lot, Detective Woods arranged to have a back-up officer, Officer McMeekin, at the parking lot. appellant produced the jackhammer, At the meeting, the later introduced. and identified as the stolen jackhammer and offered to sell the same to Detective Woods. After satisfying himself that the jackhammer met the description of the stolen property, Woods and Officer McMeekin placed the defendant under arrest for felony theft. During the State's case-in-chief testimony as to the market value of the jackhammer was introduced, and in order to prove felony theft, as required by section 45-6-301 (5), MCA, the State was required to establish that the jackhammer was valued in excess of $150. An owner of a rental agency, Mr. Crerar, estimated the value of the jackhammer between $500 and $750. The defense introduced a witness, Mr. Fuge, who testified to the value of the jackhammer as being $75 if it worked and little more than junk if it did not work. The State on rebuttal introduced evidence from a Mr. Reber as to the value of the jackhammer. He stated that based on his examination, without operating it, the jackhammer had a value of between $250 to $350, hut that if it were operational and "sounded good" it would have a value of $500. With the operating condition of the jackhammer at issue, and with experts from the State and defense differing as to its value, the State moved the court for permission to perform a demonstration in the parking lot of the courthouse with the jackhammer hooked up to an air compressor. This motion was granted to the State and a test was performed which showed that the jackhammer was functional. The appellant argued in rebuttal that the demonstration did not prove a great deal since it was not operated "under a load" such as breaking up concrete. Neither he nor his attorney raised this question at the demonstration where both were present. The principal issue here is whether the defendant, who testified on his own behalf that he received the jackhammer from a certain Dave Wedell in payment for a debt, was denied a fair trial because Wedell was not called in as a witness. The defendant testified property was stolen and that he he did not know that the further testified as to the whereabouts of Wedell by stating: "I think he is in Mexico." Attached to the appellant's brief as an exhibit is a purported transcription of an interview between appellant's trial-level attorney and Dave Wedell. This transcript was not a part of the District Court record and was based upon an interview in which the appellant contends that Wedell was a material and exculpatory witness. Appellant further contends that his attorney's failure to call the witness on his behalf constituted ineffective assistance of counsel and a denial of a fair trial. The first issue is directed to the demonstration of the jackhammer and whether the trial judge exercised appropriate discretion in granting the State's request. The appel-lant argues that only after the State's case was in the rebuttal stage to cure what was an apparent weakness in their case up to that point, did the trial court allow the demonstration to be performed? The appellant argues that this was brought about when a juror sent a note to the court requesting a demonstration, and this created an unfair and misleading situation as far as the appellant's preparation to answer the demonstration. The record does not support that argument. According to the transcript, the State realized that a demonstration would be desirable after a rebuttal witness testified as to the value of the jackhammer if it was operational. Both sides agree and cite Montana case authority. In State v. Close (Mont. 1981), 623 P.2d 940, 948, 38 St.Rep. 177, 187, citing Brown v. North Am. Mfg. Co. Mont. 98, 117, 576 P.2d 711, 722, this (1978), 176 Court held: "Generally, allowing demonstrative evidence is within the discretion of the trial judge and is subject to review only upon a showing of a manifest abuse of discretion. " See also Workman v. McIntyre Construction Co. (Mont. 1980), 617 P.2d 1281, 37 St.Rep. 1637; State v. Blair (1966), 147 Mont. 87, 410 P.2d 450. The jackhammer demonstration assisted the jury in their deliberation and helped in establishing its value. Testimony from witnesses for the State and the defense led the jury to conclude the jackhammer's worth. We find demonstration. there was no prejudice in allowing the Both appellant and his attorney were present and appellant's complaint that it did not operate "under a load" is not valid in view of the fact that no objection was made at the time of the demonstration and in fact was first made only addition, in the appellant precautionary given to appellant's brief the instructions complained instructions jury. to the 46-16-401 (4)(a), MCA. to this Court. that concerning However, he court as there this did not required were In no demonstration propose by any section The second issue for consideration is the failure to call a witness, Dave Wedell. Appel-lant claims this failure amounts to attorney incompetence which denied the defendant his right to have witnesses testify on his behalf. As previously noted, it was this issue which caused this Court to return this case to the District Court for a hearing on the competency of counsel and our discussion on this issue will include the proceedings on remand. in the respondent's first brief to this As noted Court, this allegation, which included attaching a statement made in the defense counsel's office on the part of Wedell, is outside the record of the trial court and is thus not fit for disposition on direct appeal, section 46-20-701, MCA. This Court has previously recognized the impropriety of attempting to supplement the record on appeal. See State v. Hall (Mont. 1983), 662 P.2d 1306, 40 St.Rep. 621. The witness appellant and refers to Wedell as an exculpatory alleges "[tlhis defendant s testimony and, defendant." Even if we were to include the statement as to witness in corroborated the exonerated the fact, how Wedell received the jackhammer, his inconsistent that it has statement is so no evidenciary value. Wedell replied to the questions as to how the appellant came to possess the jackhammers: "No, I dropped them off to Chester Field in December." The facts here indicate that the jackhammers were stolen in early September and the appellant was arrested on September 20th, with one of the jackhammers in his possession. It can be seen from the very statement of Wedell that his delivery of the jackhammers to the appellant in December is hardly exculpatory. In truth, his testimony is completely destructive to the appellant. After counsel's interview of Wedell and considering his statements, it is the opinion of the two attorneys called on the ineffective assistance of counsel hearing, that his statements would have Wedell would not have been helpful destroyed the defendant. to the defendant and defense counsel quite properly exercised his discretionary judgment by not putting Wedell on the stand if he had been ava-ilable. In addition, as previously noted, when asked the whereabouts of Wedell, the appellant on direct examination stated he thought he was somewhere in Mexico. The record indicates Wedell at no time wanted to appear and be a part of the defense of the appellant in this case. This Court gave the appellant the benefit of the doubt remanding the evidentiary hearing. matter to the District Court for After the hearing on February 29, 1984, the presiding judge, the Honorable Douglas G. Harkin, entered extensive findings of fact and conclusions of law. concl-usions are the following: I "12. The allegations of ineffectiveness raised by the Defendant in this matter are unsupported by the evidence produced at the evidentiary hearing, or by a review of the record of the trial. Mr. Wedell is a reluctant witness who apparently would have made a negative impression upon the jury even if he could have been found for the trial. The danger of his negative impact being attributed to the Defendant was great. Thus, the decision by Mr. Goldman [original counsel for the defendant] not to pursue his testimony is founded upon cognizable reasons and cannot be said to be a demonstration of ineffective assistance of counsel. In fact, to have called Mr. Wedell under these circumstances would have been at most the presentation of testimony known to be false and thus unethical, and at least, in light of his demeanor and apparent credibility problems, such a risky tactic as to have perha-ps been an act of incompetency. Thus, the failure to call him cannot be truly faulted. The decision to permit the Defendant to testify is also founded upon cognizable reasons, and cannot be said to be a Among the demonstration of ineffectiveness. To have refused to have permitted him to testify in light of his expressed wishes would have truly been 'remiss.' "13. Defendant's claim of ineffective assistance of counsel is not supported by the evidence. Mr. Goldman's actions relating to the witness Dave Wedell and the Defendant's testimony at trial were clearly within the range of competence demanded of attorneys in criminal cases." This Court held in State v. attorney's reputation is Appellant's counsel might differently, lawyer for . . . branding however, most have "[tlhe prized the Lopez appointed possession." conducted counsel the trial that fact would have done differently ineffectiveness. State v. his Hall, supra, that "An some other ... is no ground with opprobrium Or infidelity, or incompetency (Mont. 1980), 605 P.2d of ... " 178, 180-181, 37 St.Rep. 36, 38-39; citing Williams v. Beto (5th Cir. 1965), The judgment of the District Court is affirmed. We concur: ief Justice I / A
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
