State v. Austad ( 1982 )


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  •         IN THE SUPREME COURT OF THE STATE OF MONTANA
    No. 80-319
    THE STATE OF MONTANA,
    Plaintiff and Respondent,
    GENE ANDREW AUSTAD,
    Defendant and Appellant.
    ....
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    PER CURIAM:
    The following paragraphs are deleted from this opinion
    at page 17-18:
    "Before the adoption of the present Criminal
    Procedure Code, Title 46, MCA, this Court
    had relied upon section 94-8207, R.C.M.,
    1947, for its well-established rule that
    "prejudice in a criminal case will not be
    presumed, but rather must appear from the
    denial or invasion of a substantial right
    from which the law presumes prejudice       ...
    It is up to this court to decide whether an
    error affects the substantial rights of the
    defendant and the defendant must demonstrate
    prejudice from the record." State v, Straight
    (1959), 
    136 Mont. 255
    , 264-265, 
    347 P.2d 482
    , 488. Cf. State v. Bubnash (1963), 
    142 Mont. 377
    , 
    382 P.2d 830
    . This rule has been
    substantially adopted in such cases as State
    v. LaMere (1980),      Mont.     , 
    621 P.2d 462
    , 465, 37 St.Rep. 1936, 1940, where we
    stated:
    "'This Court will not presume prejudice. If
    it did exist, it is incumbent on defendant
    to bring the evidence of prejudice before us
    (citation omitted). We find no reversible
    error in the judge's limitation [of voir
    dire questioning]. '
    "Defendant's brief is silent as to prejudice
    resulting from the trial court's correction of
    its technical error. We see no prejudice. We
    find no reversible error in the inconsistent
    rulings of the trial court on for cause chal-
    lenges to government employees."
    The following paragraph is substituted for the above paragraphs:
    "Where, as here, the record shows that the
    trial court's error affected neither consti-
    tutional nor jurisdictional rights of the
    defendant, and defendant has failed to demon-
    strate prejudice to his substantial rights
    resulting from the error, this Court will not
    presume prejudice. See State v. LaMere (1980),
    Mont.   , 
    621 P.2d 462
    , 465, 37 St.Rep.
    1936, 1940. We find no reversible error in
    the inconsistent rulings by the trial court
    on for cause challenges to government employ-
    ees. "
    As modified, the opinion stands; the petition for
    rehearing is denied.
    DATED this %&a
    %dy    of March, 1982.
    %*A
    Chief Justice
    No.    80-319
    I N THE SUPREME COURT O THE STATE O M N A A
    F           F OTN
    1981
    THE STATE O MONTANA,
    F
    P l a i n t i f f and R e s p o n d e n t ,
    VS.
    GENE ANDREW AUSTAD,
    D e f e n d a n t and A p p e l l a n t .
    Appeal from:          D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
    I n and f o r t h e County o f C a s c a d e
    Honorable H. W i l l i a m Coder, Judge p r e s i d i n g
    C o u n s e l o f Record:
    For A p p e l l a n t :
    D a n i e l Donovan a r g u e d , P u b l i c D e f e n d e r , Great F a l l s ,
    Montana
    F o r Respondent:
    Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
    Mary B. T r o l a n d a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l ,
    H e l e n a , Montana
    J. F r e d Bourdeau, County A t t o r n e y , G r e a t F a l l s , Montana
    --
    Submitted:          November 30, 1 9 8 1
    Decided :          f ~ 2 5 \981
    0
    Filed:   FEB 2 5 1 9 8
    Clerk
    Mr. Justice Fred J. Weber delivered the Opinion of the
    Court .
    Defendant Gene Austad appeals from a jury verdict in
    the Eighth Judicial District Court, Cascade County, in which
    he was found guilty of deliberate homicide, aggravated
    robbery, sexual intercourse without consent, and aggravated
    burglary, all felonies.   He was sentenced to life plus 120
    years in prison and designated a dangerous offender.   We
    affirm the District Court.
    Defendant raises the following issues:
    1.   Whether the trial court erred in ruling that
    defendant was mentally and physically fit to proceed to
    trial.
    2.   Whether the trial court erred in admitting into
    evidence certain photographs of the victim.
    3.   Whether the trial court erred in refusing to grant
    defendant a change of venue.
    4.   Whether the trial court prejudiced the defendant
    by making inconsistent rulings on challenges for cause of
    prospective jurors.
    5.   Whether the trial court erred in allowing the
    State to present evidence of defendant's character and his
    prior felony conviction, ruling that he had "opened the
    door. I
    '
    6.   Whether the trial court erred in admitting into
    evidence State's exhibit No. 4 (the vest) and related expert
    testimony, over objections as to proper identification,
    foundation and chain of custody.
    7.   Whether the trial court erred in denying defendant's
    motion to take the depositions of expert witnesses of the
    State who lived out of state and refused to be interviewed
    by the defense over the phone.
    8.    Whether the trial court erred in giving instruction
    No. 14, which involved "flight of a person immediately after
    the commission of a crime."
    9.    Whether the trial court erred in its treatment of
    certain defense motions by failing to make rulings, failing
    to state specific grounds for its rulings, and reversing
    some of its earlier rulings without notice or without
    adequate notice.
    Defendant raised a number of small issues; we will
    address those issues in their turn.
    Facts and Procedures
    At approximately 1:00 o'clock A.M. on April 22, 1978,
    two members of the Great Falls Police Department stopped a
    car for speeding.   The driver (defendant) and a male passenger
    (Clifford Elliott) got out of the vehicle at the officers'
    request.   On the pretext of getting his driver's license,
    defendant got back in the car, and sped off.     The officers
    immediately gave chase, leaving the passenger behind.
    Defendant was observed throwing papers and various articles
    of clothing out the car window as he swerved through traffic
    on Tenth Avenue South, a main thoroughfare in Great Falls.
    The chase, which proceeded at about 90 M.P.H.,   ended when
    defendant lost control and crashed into several cars on the
    lot of a local car dealer.    As a result of the wreck, defendant
    was comatose for weeks and spent months in the hospital.
    After his accident, he had and continues to have amnesia,
    some paralysis and muscle weakness, a speech impairment and
    other physical disabilities.    He can walk with a walker but
    is usually confined to a bed or a wheelchair.    His speech is
    coherent, but slow and occasionally difficult to understand.
    At the time of the wreck, a police officer investigating
    the accident noticed many papers in the car, and could make
    out the name "Wald" on some of them.     He suspected a burglary,
    and police were dispatched to the Wald address.    There they
    found a broken window and a door slightly ajar.    In the
    bedroom they found the naked body of 69-year-old Mabel Wald,
    badly beaten, with a butcher knife in her chest.
    Further investigation revealed the following information.
    Among the items thrown out of defendant's car were bonds
    made out to Blaine and Mabel Wald and a vest containing
    glass particles similar to glass particles from the broken-
    out window of the victim's home, through which the initial
    entry was apparently made.   Among the items inside the car
    were numerous articles belonging to the victim.    Defendant's
    thumb print was found on a lamp in the victim's bedroom.
    The lamp was next to the victim's head, and its base was
    dented.   Tire tracks in a nearby alley were similar to
    those defendant's car would have left.    An autopsy on the
    victim (a widow) indicated recent sexual activity.    The
    defendant, in the course of his job with a moving company,
    had helped the victim move into her home two days before she
    was murdered.   At the time of the move, the victim had
    indicated twice in defendant's presence that she herself
    would move the strongboxes containing her currency.
    Clifford Elliott was later apprehended and interrogated.
    His testimony revealed that at about 8:00 o'clock P.M. the
    night of the crime, in a Great Falls bar, defendant had
    offered to pay Elliott $100.00 to go to the home of a woman
    he had just moved, to steal some items.    Elliott refused;
    when the defendant returned to the bar around midnight
    wanting to show Elliott something in his car, Elliott accompanied
    him outside.     There defendant showed him a purse, papers and
    a strongbox in defendant's car.
    On April 27, 1978, defendant was charged by information
    with deliberate homicide, aggravated robbery, sexual inter-
    course without consent, and aggravated burglary.
    Defendant was not served with a copy of the information
    until September 18, 1978, because the State feared the
    injuries he had sustained might interfere with defendant's
    ability to communicate and comprehend.     He was arraigned on
    December 27, 1978, remaining silent, and a not guilty plea
    to all charges was entered in his behalf.
    In February of 1979, defendant was released from the
    hospital.    His bail was reduced, permitting him to be taken
    to the home of his parents where he would be given the
    personal care then indicated by his condition.
    Defendant moved for change of venue, sequestration of
    prospective jurors during voir dire examination and during
    trial, and individual voir dire examination of prospective
    jurors.     Individual voir dire was granted.   On August 24,
    1979, following a series of psychiatric and medical examina-
    tions of defendant to determine his fitness to proceed, the
    District Court held an - camera hearing to determine defen-
    in
    dant's fitness to proceed to trial, his ability to assist
    and communicate with his counsel, and the extent to which
    the State's evidence could be reconstructed.
    On October 2, 1979, the District Court found the defen-
    dant capable of proceeding to trial and set a trial date of
    November 20, 1979.    Because of defendant's condition, trial
    was to be held for no more than four hours per day.
    On November 1, 1979, defendant's motion to close pre-
    trial proceedings was granted.     Individual voir dire
    examination of prospective jurors began on December 3, 1979,
    closed to the press and public.    During voir dire, the
    ~istrictCourt granted a motion by the defense that defendant
    serve as co-counsel.   On December 14, 1979, the Great Falls
    Tribune obtained a writ of supervisory control in this
    Court, regarding the exclusion of press and public.     This
    Court stayed proceedings until January 18, 1980, when, after
    oral argument was heard, we vacated the District Court's
    order excluding press and public from voir dire proceedings.
    See Great Falls Tribune v. District Court (1980),          Mont   .
    , 
    608 P.2d 116
    , 37 St.Rep. 502.
    Jury selection resumed on January 24, 1980, and the
    evidentiary stage of the trial began on February 19, 1980.
    The jury returned a verdict of guilty on all counts, March
    6, 1980, and on May 2, 1980, the District Court sentenced
    defendant to a total of life plus 120 years.     Defendant
    appeals.
    I.
    Defendant argues that the trial court should have found
    him unfit to stand trial because his amnesia rendered him
    incapable of assisting in his own defense.     He claims he
    could not reconstruct events which occurred the night of the
    crime, could not develop a defense of alibi or proof of
    another person's guilt, and could not testify effectively in
    his own behalf.   Finally, he argues that the trial court
    erred in not meeting the standards established in Wilson v.
    United States (D.C.Cir. 1968), 
    391 F.2d 460
    .    ~ccordingto
    defendant, the least this Court can do is remand for a
    Wilson-type post-trial hearing.
    In Wilson, the Circuit Court of Appeals set out a
    number of criteria to be applied before and after trial to
    determine whether an amnesiac criminal defendant could and
    did receive a fair trial.    Wilson is not a Ninth Circuit
    decision.    Nor have those federal courts dealing with the
    competence of amnesiac criminal defendants in the decade
    after Wilson adopted the Wilson standard, relying instead
    upon the less stringent test established in Dusky v. United
    States (1960), 
    362 U.S. 402
    , 
    80 S. Ct. 788
    , 
    4 L. Ed. 2d 824
    .
    For those reasons, we decline to adopt the Wilson standard
    in Montana, finding the Dusky standard to be sufficient.
    In Dusky, the United States Supreme Court stated:
    "[The] test must be whether [the defendant]
    has sufficient present ability to consult
    with his lawyer with a reasonable degree of
    rational understanding -- and whether he has
    a rational as well as factual understanding
    of the proceedings against him." Dusky v.
    United States, 362 U.S. at 402, 80 S.Ct. at
    789, 4 L.Ed.2d at 825.
    The Dusky standard has been applied in the majority of
    federal cases in which a criminal defendant claimed amnesia
    rendered him unfit to stand trial; none of the federal
    courts, including the Wilson court, has held that amnesia
    - - constitutes incompetency.
    per se                             See United States v. Mota
    (5th Cir. 1979), 
    598 F.2d 995
    , 998, cert. denied - -
    sub. nom.
    Flores v. United States (1980), 
    444 U.S. 1084
    , 
    100 S. Ct. 1042
    , 
    62 L. Ed. 2d 770
    ; United States v. Swanson (5th Cir.
    1978), 
    572 F.2d 523
    , 525-526, cert. denied (1978) 
    439 U.S. 849
    , 
    99 S. Ct. 152
    , 
    58 L. Ed. 2d 152
    ; United States ex rel.
    Parson v. Anderson (3d. Cir. 1973), 
    481 F.2d 94
    , 95, cert.
    denied - - Parson v. Anderson (1973), 
    414 U.S. 1072
    ,
    sub. nom.
    
    94 S. Ct. 586
    , 
    38 L. Ed. 2d 479
    ; United States v. Sullivan (2d
    Cir. 1969), 
    406 F.2d 180
    .
    The record indicates that several physicians and
    psychiatrists interviewed, tested, and studied the defendant
    over a period of many months and testified at the fitness
    hearing.   They were in agreement that defendant's amnesia
    was not feigned:    he could not remember events which occurred
    the day of the crime and could not testify about his mental
    state at that time.      But they were also in substantial
    agreement that defendant was (1) capable of understanding
    the facts of the case, the nature of the charges against
    him, and the procedural and legal issues involved;      (2)
    capable of comprehending counsel and making rational and
    informed decisions upon counsel's advice; (3) capable of
    communicating rationally and coherently, despite a small
    speech problem.    The District Court judge noted that defen-
    dant was alert, oriented, and fluent throughout the competency
    hearing.   Indeed, during voir dire, for a time, defendant
    was named co-counsel.     There is sufficient evidence of
    competency here to support the District Court's discretionary
    ruling that defendant was fit to proceed to trial.
    In United States ex rel. Parson v. Anderson, 481 F.2d
    at 96, the Third Circuit Court of Appeals noted:
    "Had the proof of Parson's commission of the
    crime been based on eyewitness testimony or
    had the prosecution relied substantially on
    statements attributed to Parson, his amnesia
    might have significantly hindered the prepar-
    ation and presentation of a rebuttal defense.
    No such evidence was presented here. Rather,
    the evidence was of a physical nature, Thus,
    it would appear that the amnesia did not mean-
    ingfully affect the availability of this type
    of defense [insanity or rebuttal of state's
    .
    evidence] "
    Here, also, the bulk of the evidence against defendant
    is physical evidence, which would not be significantly
    affected by defendant's amnesia:     the victim's possessions
    in defendant's car; tire tracks similar to those from his
    car just outside the victim's home; particles of glass
    similar to glass from victim's window imbedded in defendant's
    vest; defendant's fingerprints on a lamp that was apparently
    used to club the victim.   Defendant's mental state and his
    "alibi" would have little effect upon this evidence.
    Furthermore, the defendant was given a good deal of
    assistance by the court and by the prosecution.   The State's
    files were opened to him; experts were appointed by the
    court; the State's experts were urged to cooperate with
    defendant.
    Finally, the circumstantial evidence against defendant
    was very strong.   In addition to the physical evidence
    mentioned above, the jury considered defendant's having
    helped move the victim two days before her murder; defen-
    dant's offer to Clifford Elliott to pay him for helping rob
    an old lady he'd moved earlier; defendant's uncharacteristic
    wild and jubilant behavior in a bar at a time estimated to
    be just after the murder; defendant's flight from the police
    after a routine traffic stop.
    A number of the above reasons were included in the
    Wilson standard as supporting a determination by the trial
    court that defendant would be unlikely to be prejudiced
    by standing trial, despite his amnesia.   The trial court
    did not err in finding that, under the Dusky standard,
    defendant was competent to stand trial.
    Defendant also argues that, because he suffers from
    cerebral palsy (apparently as a result of injuries sustained
    in the accident), he is developmentally disabled under
    section 53-20-102, MCA, and the trial court erred in not
    finding him unfit to stand trial.   Defendant relies upon
    section 46-14-221(3), MCA, which states in relevant part:
    "If the court determines that the defendant
    lacks fitness to proceed due to the fact that
    the person is developmentally disabled, as
    defined by 53-20-102, the proceeding against
    him shall be suspended. . ."
    We are aware that a physical condition may be determina-
    tive of fitness to proceed.     We do not question whether
    defendant has cerebral palsy, or whether he is, by definition,
    developmentally disabled.    We do point out to defendant that
    section 46-14-221(3), MCA, does not say that a developmental
    disability automatically mandates a finding of lack of
    fitness to proceed to trial.    A developmental disability may
    affect a defendant in such a way as to render him unfit to
    proceed.     That is for the trial court, in its discretion, to
    determine.     Here, the trial court has found defendant fit to
    proceed despite his developmentally disabled condition, a
    finding amply supported by medical evidence.    The trial
    court's decision was in no way inconsistent with the provisions
    of section 46-14-221(3), MCA.
    It is evident to this Court that the District Court did
    not err in holding that defendant was competent and fit to
    stand trial.
    On January 22, 1980, the District Court judge granted
    defendant's motion in limine to exclude photographs of the
    victim finding them "neither necessary nor instructive with
    regard to any material fact or condition of this case,"
    besides being unduly prejudicial.    The State filed a motion
    to reconsider, and a hearing followed, in which the State
    suggested the photographs could be made less inflammatory by
    cropping.    The court did not rule, and, when the State
    presented the pictures, uncropped, at trial, the defendant
    moved for mistrial.    The court denied the motion and admitted
    the photographs into evidence.
    Defendant now argues that the use of the photographs
    inflamed and prejudiced the jury and, by denying defendant a
    fair trial deprived him of due process of law.      He relies
    upon a number of Montana cases which hold that allowing the
    introduction of unnecessary, gruesome photographs for the
    purpose of arousing prejudice against the defendant is
    reversible error.   See State v. Azure (1979),        Mont.
    , 
    591 P.2d 1125
    , 36 St.Rep. 514; State v. Pendergrass
    (1978), 
    179 Mont. 106
    , 
    586 P.2d 691
    ; State v. Bischert
    (1957), 
    131 Mont. 152
    , 
    308 P.2d 969
    .
    We do not find reversible error here.      The hearing for
    reconsideration of the court's exclusionary ruling should
    have prepared defendant for the possibility that the pictures
    would be admitted into evidence.    We do not approve the
    District Court's failure to rule, but neither do we find
    that failure to have prejudiced defendant's right to a fair
    trial.   In State v. Mackie (1981),      Mont.        , 
    622 P.2d 673
    , 674, 38 St.Rep. 86, 88, this Court stated:
    "The longstanding rule in Montana is that
    a photograph is admissible if it 'fairly
    and accurately represents relevant evidence.'
    State v. Jones (1914), 
    48 Mont. 505
    , 
    139 P. 441
    . It is within the discretion of
    the trial court to allow into evidence
    duly verified photographs to aid the jury
    in its fact-finding process. Fulton v.
    Chouteau County Farmers' Co. (1934), 
    98 Mont. 48
    , 
    37 P.2d 1025
    ."
    See also State v. Hoffman (1982),       Mont.               P.2d
    There were two photographs admitted into evidence, one
    of the entire body of the victim as she was found in her
    home, one of the head and neck of the victim at the time of
    autopsy.   The first photo shows a broken lamp alongside the
    victim's head.    This was the lamp bearing the defendant's
    fingerprints.    Defendant argued that his fingerprints could
    have been placed on the lamp when he helped move the victim
    several days earlier.    The State needed the photograph to
    support its argument that the position of the print on the
    lamp was more consistent with its use as a bludgeon than
    with the defendant's having merely carried it from one place
    to another.    The position of the lamp, the way the lamp was
    broken and dented, and the location and nature of the bruises
    on the victim's head, all supported the State's argument.
    The first photograph also showed a singular lack of blood on
    the victim's body and on the bedclothes.    Defendant had
    contended that if he had committed the murder, he would have
    had blood on his clothing.    The State needed the photograph
    to disprove defendant's contention.   We fail to see how the
    photograph could have been effectively cropped and yet have
    been useful for that part of the State's argument.   The
    second photograph shows the location of wounds on the
    victim's head and neck after the blood had been washed away
    and the victim's head partially shaved.    The State used that
    photograph to show, again, how the lamp must have been held
    to strike the victim, and to show that the wounds on the
    victim's neck could have been inflicted by the knife with
    which she was ultimately killed.
    We are aware that these photographs indicate the brutality
    and viciousness of the crime, and could result in some
    prejudice to the defendant.   We are not willing, however, to
    accept defendant's argument that testimony and a plastic
    mannikin with red lines drawn on it to indicate wounds
    sufficiently enlightened the jury that the photographs were
    unnecessary.    We will not demand that a trial be sanitized
    to the point that important, probative evidence must be
    excluded.    In State v. Fitzpatrick (1973), 
    163 Mont. 220
    ,
    229-230, 
    516 P.2d 605
    , 611, we stated:
    "Once this relevance is established, the fact
    that a photograph may be inflammatory should
    not render it inadmissible any more than in-
    flammatory word descriptions should render
    testimony inadmissible, so long as the pur-
    pose is probative and the true facts and con-
    ditions are described. Jones on Evidence,
    6th Ed., Vol. 3, Sec. 17:50 (1972)."
    The trial judge, in his discretion, must determine whether
    the probative value is outweighed by potential prejudice.
    State v. Azure, supra.   We find no abuse of discretion in
    the trial court's admitting the two photographs into evidence.
    On May 24, 1979, defendant requested a change of venue,
    claiming that pretrial publicity had created such prejudice
    that fair trial could not be had in Cascade County.   The
    trial court failed to rule on defendant's motion, although
    defendant raised the matter several times before trial
    began.   Voir dire revealed that most, if not al1,of the
    jurors actually chosen were familar with certain facts of
    the case.   Defendant argues that, despite the jurors'
    assurances on voir dire that they would grant defendant the
    presumption of innocence and consider only the evidence
    presented at trial, the jurors were in fact, so prejudiced,
    consciously or unconsciously, as to preclude a fair trial.
    The State concedes that most prospective jurors had
    some knowledge of the crime because of the publicity and a
    good many of those excused for cause had already formed
    opinions as to the guilt of the defendant.   But the State
    maintains that is not sufficient to establish the existence
    of prejudice, or to require a trial court to grant a motion
    for change of venue.
    Montana is no longer ruled by the old standard requiring
    a showing that fair trial is impossible in the jurisdiction
    due to publicity before a change of venue will be granted.
    See State ex rel. Hanrahan v. District Court (1965), 
    145 Mont. 501
    , 508, 
    401 P.2d 770
    , 774.    In State v. Link (1981),
    Mont.        - P. 2d           ,
    - 38 St.Rep. 982, 985,
    this Court agreed that the old rule set an unworkably high
    standard and adopted the "Illinois rule" articulated in
    People v. Berry (1967), 37 I11.2d 329, 
    226 N.E.2d 591
    , 592-
    593, which states:
    "[Tlhe rule is that an accused is entitled
    to a change of venue when it appears there
    are reasonable grounds to believe that the
    prejudice alleged actually exists and that
    by reason of the prejudice there is a reason-
    able apprehension that the accused cannot
    receive a fair and impartial trial."
    This Court in Link indicated that the effect of the adoption
    of the Illinois rule was to allow a district judge to
    "exercise his discretion in determining that the actual
    prejudice is sufficiently pervasive to warrant a change of
    venue."   38 St.Rep. at 985.   Link also stated that "where
    the evidence is inconclusive on the issue of prejudice, the
    district judge's discretion should be relied on.   His ruling
    should not be disturbed unless an abuse of discretion is
    shown."   38 St.Rep. at 984.
    In Great Falls Tribune v. District Court (1980), 
    608 P.2d 116
    , 119-120, 37 St.Rep. 502, 506, referring to the
    pretrial publicity in this case, this Court stated:
    "We have examined the 92 exhibits of pretrial
    media coverage. We note that the Tribune has
    published and republished the background of
    the case -- that defendant is charged with rap-
    ing and murdering the 69 year old victim, cut-
    ting her throat, sticking a knife in her chest
    and subsequently being apprehended by police
    after a high speed chase. Television and radio
    broadcasts are of the same tenor. In our view
    these items are factual reporting without edi-
    torializing - - -no more inflammatory than
    and are -
    background information on any other brutal
    crime." (Emphasis supplied.)
    "In the modern world it is impossible to
    create an artificial, antiseptic environment
    from which prospective jurors may be drawn
    who have heard nothing of a serious crime
    committed in their midst . . . It is only
    where they form fixed opinions on the guilt
    or innocence of the defendant which they
    would not be able to lay aside and render a
    verdict based solely on the evidence present-
    ed in court that they become disqualified as
    jurors."  (Citations omitted.)
    Here, there was extensive voir dire, which amounted to
    2,000 pages of transcript and which was designed to ferret
    out any possible prejudice in prospective jurors.   Those
    jurors whose responses indicated a belief that defendant was
    guilty, or betrayed prejudice against defendant for any
    reason, were promptly excused by the court.   Those jurors
    who were accepted had all been passed by the defense and had
    all testified that they were without any opinion as to
    defendant's guilt and could base their verdict solely upon
    the evidence presented at trial.   In light of the latitude
    granted the defense in voir dire, and after consideration of
    the pretrial publicity and this Court's determination that
    it was not prejudicial, we find that the District Court did
    not abuse its discretion in holding trial in Cascade County.
    We will address the court's failure to rule elsewhere in
    this opinion.
    IV.
    The defendant's fourth allegation of error is that the
    trial court gave the prosecution an undue advantage in jury
    selection by ruling inconsistently on challenges for cause.
    During voir dire, the trial judge excused a biased
    county employee challenged for cause by the defendant, and
    excused a State employee challenged for cause by the prosecu-
    tion, because of their employment.    Subsequently, two
    challenges for cause by the defendant were denied, although
    one prospective juror worked for Cascade County and another
    was a recently retired State employee.     The first two challenges
    were granted because of the court's mistaken belief that
    section 46-16-304(2) ( b ) , MCA, applied to government employees.
    The defendant's challenge to the former State employee was
    summarily denied because he was retired.    The defendant's
    challenge to the Cascade County employee, who had previously
    been passed, was denied because the trial court, after
    consideration of the statute and relevant cases, concluded
    that section 46-16-304 (2) (b) referred only to relationships
    between the defendant, the victim, and the complainant.       The
    early challenges were incorrectly granted on the basis of
    government employment.   The first prospective juror listed
    above was excused because of her bias, as well as her employment,
    and was properly excused.   The defendant now argues that
    because the prosecution was allowed an improper challenge
    for cause, it did not need to use a peremptory challenge to
    excuse that prospective juror, and effectively enjoyed an
    advantage over the defendant when it came to the exercise of
    peremptory challenges.
    Defendant has not attempted to prove that prejudice
    resulted from the trial court's error.    He argues instead
    that the failure of the trial court either to call back the
    prospective juror erroneously excused, or to allow the
    defendant to excuse a prospective juror for the same defective
    reason, gave the prosecution an undue advantage in its
    exercise of challenges.
    We agree with the defendant that the trial court improperly
    excused the State employee, and that the State was given a
    slight advantage in the exercise of its challenges by reason
    of the trial court's recognizing its error in time to deny
    the defendant's challenge for cause of the Cascade County
    employee.     But defendant has failed to show this Court how
    the error prejudiced him.
    In State v. Bashor (1980),        Mont.      , 
    614 P.2d 470
    , 477, 37 St.Rep. 1098, 1104 (challenge to entire jury
    panel) , we stated:
    "The pertinent inquiry is, however, whether
    the jury as empaneled were able to render an
    impartial judgment based solely upon the evi-
    dence presented at trial."
    Here, as noted above, the prospective jurors were
    extensively examined to determine whether they were prejudiced
    against the defendant.    Those persons exhibiting bias were
    promptly excused for cause.    The cooperation of the trial
    court and the prosecution in this process is evident in the
    transcript.    Those jurors who were empaneled had given
    assurances of impartiality, and defendant has presented no
    evidence that they were partial.
    Section 46-20-702, MCA, provides:
    "Any error, defect, or irregularity, or
    variance which does not affect substantial
    rights shall be disregarded. Defects a£-
    fecting jurisdictional or constitutional
    rights may be noticed although they were
    not brought to the attention of the trial
    court. "
    Before the adoption of the present Criminal Procedure
    Code, Title 46, MCA, this Court had relied upon section 94-
    8207, R.C.M., 1947, for its well-established rule that
    "prejudice in a criminal case will not be presumed, but
    rather must appear from the denial or invasion of a substan-
    tial right from which the law presumes prejudice    ...        It is
    up to this court to decide whether an error affects the
    substantial rights of the defendant and the defendant must
    demonstrate prejudice from the record."    State v. Straight
    (1959), 
    136 Mont. 255
    , 264-265, 
    347 P.2d 482
    , 488.       Cf.
    State v. Bubnash (1963), 
    142 Mont. 377
    , 
    382 P.2d 830
    .          This
    rule has been substantially adopted in such cases as State
    v. LaMere (1980),       Mont.     ,   
    621 P.2d 462
    , 465, 37
    St.Rep. 1936, 1940, where we stated:
    "This Court will not presume prejudice. If
    it did exist, it is incumbent on defendant
    to bring the evidence of prejudice before
    us (citation omitted). We find no reversi-
    ble error in the judge's limitation [of
    voir dire questioning]."
    Defendant's brief is silent as to prejudice resulting
    from the trial court's correction of its technical error.
    We see no prejudice.   We find no reversible error in the
    inconsistent rulings of the trial court on for cause challenges
    to government employees.
    The defendant took the stand on his own behalf, and during
    cross-examination, the following dialogue took place:
    "Q.   Did you kill Mabel Wald?
    "A.   No.
    "Q. Mr. Austad, you've already testified you
    don't remember what happened in January,
    February, March and April of 1978. You've
    also testified that you did not kill Mabel
    Wald. How do you know?
    "A.   I just know what I'm made of, and what
    I think what I would do, and what I think   --
    Mrs. Wald was an elderly lady, and I wouldn't
    even think of committing any kind of offense
    toward an old lady or anyone."
    An - camera hearing followed, in which the trial court
    in
    ruled that defendant had "opened the door" to character
    evidence and evidence of a prior felony conviction for
    burglary.     Defendant's objections were noted, and cross-
    examination continued.        The following exchange took place:
    "Q.     Did you burglarize Mabel Wald's house?
    "A. No.
    "Q. How do you know?
    "A. I don't -- because it is not part of me to
    do that type of thing. I've been in trouble
    with the law before,-but - never burglarized
    - I've
    any place.
    "Q.     Have you ever been convicted of a felony?
    "A.     Yes.
    "Q.     What was the conviction for?
    "A. Burglary."       (Emphasis added.)
    The State brought in a rebuttal witness, Margaret Fasbender,
    who was a high school English teacher in Fairfield, where
    defendant was raised.       Ms. Fasbender testified that defendant's
    reputation for truth and honesty was "rather dubious;" he
    was considered "untrustworthy."        In response to a question
    about defendant's reputation for peacefulness, Ms. Fasbender
    replied, "He was felt to be rather volatile and temperamental."
    Defendant now argues that the trial court erred by
    permitting the State to introduce prejudicial evidence
    concerning defendant's character and his previous felony
    conviction.       Defendant relies upon Rules 6 0 9 and 4 0 4 of the
    Montana Rules of Evidence.
    Rule 4 0 4 (a) states:
    "Evidence of a person's character or a trait
    of his character is not admissible for the
    purpose of proving that he acted in conformity
    therewith on a particular occasion, except:
    "(1) Character of accused. Evidence of a
    pertinent trait of his character offered
    by an accused, or by the prosecution to
    rebut the same."
    Defendant argues that, because the State asked the question
    that elicited defendant's remarks about his character, those
    remarks were technically not "offered by the accused" as
    contemplated in Rule 404(a)(l), and cannot be used as a
    basis for admitting other character evidence.
    We are not persuaded.   Defendant was not required to
    answer as he did; his answer was an assessment of his own
    character and a declaration that he could not "even think
    of" doing such a thing to an old woman.   His answer, despite
    the fact that it was elicited by a question from the State,
    was clearly an offer of a pertinent trait of his character.
    As such, it comes within the exception of Rule 404(a) (I),
    and opens the door for the State to present rebuttal evi-
    dence of a pertinent trait of the character of the accused.
    Defendant relies upon State v. Cor (1964), 
    144 Mont. 323
    , 
    396 P.2d 86
    , to support his argument that evidence of
    his reputation for truth and veracity is irrelevant in a
    homicide case.   We remind defendant that this is also a
    burglary case, a robbery case, and a rape case.   The evidence
    which was admitted concerning defendant's reputation for
    truth and veracity and for peacefulness was relevant.    We
    find that the rebuttal character evidence was properly
    admitted.
    Defendant, on cross-examination, claimed to have never
    burglarized any place, then, reluctantly admitted to a
    burglary conviction.   Because it is defendant's perjured
    claim which determines the admissibility of the evidence of
    his burglary conviction, we need not consider the propriety
    of the trial court's earlier ruling that defendant's testimony
    putting his character into issue also opened the door to
    evidence of the burglary conviction.
    Defendant argues that the evidence of his burglary
    conviction was introduced to impeach his credibility and
    convince the jury of his guilt, and as such should not have
    been admissible.   He relies primarily upon Rule 609 and
    Rule 404(b), M.R.Ev., which state:
    "For the purpose of attacking the credibility
    of a witness, evidence that he has been convic-
    ted of a crime is not admissible." Rule 609,
    M.R.Ev.
    "Evidence of other crimes, wrongs, or acts is
    not admissible to prove the character of a
    person in order to show that he acted in con-
    formity therewith. It may, however, be ad-
    missible for other purposes, such as proof
    of motive, opportunity, intent, preparation,
    plan, knowledge, identity or absence of mis-
    take or accident." Rule 404(b), M.R.Ev.
    We remind defendant that the list of exceptions in
    404(b) is not exclusive.   The Commission Comment following
    Rule 404(b) in the Montana Lawyer's Rule Book states:
    ". . . Montana law is consistent with the
    concept that purposes other than those
    listed in the rule may be found and used
    to admit evidence of other crimes."
    Here, the evidence of defendant's prior felony conviction
    was admitted to prove not that defendant committed the
    crimes of which he was charged, but that defendant had lied
    under oath.
    The Commission Comment following Rule 609 indicates
    that the purpose of that rule is to prevent opponents from
    discrediting all the testimony of a witness or party simply
    by presenting evidence of other crimes.   The Commission
    states that the rule springs from a concern that witnesses
    will be caused undue pain and embarrassment, even discouraged
    from testifying, although the prior conviction may have no
    relation to credibility.
    The circumstances here are obviously not those contemplated
    by ~ u l e609 or by the line of case law in Montana which
    establishes certain standards which must be met before
    and after admission of other crimes evidence, before such
    evidence will be acceptable.           See State v. Just (1979),
    Mont.        ,   
    602 P.2d 957
    , 36 St.Rep. 1649; State v.
    Lave (1977), 
    174 Mont. 401
    , 
    571 P.2d 97
    ; State v. Heine (1975),
    
    169 Mont. 25
    , 
    544 P.2d 1212
    ; State v. Jensen (1969), 
    153 Mont. 233
    , 
    455 P.2d 631
    .           Here, on cross-examination, defendant
    answered a question with an unnecessary, self-serving statement
    which he knew to be untrue, intended to place him in a
    better light with the jury.          The fact that the evidence of
    his prior felony conviction was not elicited by defense
    counsel and the fact that disclosure of his false testimony
    and his conviction were somewhat prejudicial to the defen-
    dant, are not controlling here.               The Rules of Evidence were
    not intended to muzzle the State against defendant's deliberate
    attempts to mislead jury members by lying to them in answering
    specific questions.       The trial court did not err in admitting
    Ms. Fasbender's rebuttal testimony and defendant's own
    testimony that he had been convicted of burglary.
    VI   .
    During defendant's trial and over defendant's objection,
    a tan vest was admitted into evidence and expert testimony
    by an F.B.I. agent established that glass particles found
    imbedded in the vest shared certain physical properties with
    glass taken from the broken window and the bedsheet in the
    victim's house.       The F.B.I.    expert stated that there was "a
    slim possibility" that the glass on the vest came from some
    source other than the window of the victim's house.
    Defendant now alleges that the court failed to rule on
    his motion to suppress the vest and evidence about the vest
    unless and until a proper chain of custody could be establish-
    ed.   The transcript reveals that the defendant believed the
    court had denied the motion in limine.    Defense counsel
    stated to the court:
    "It's been the defense's impression that you
    have ruled against our motion in limine to
    require the State to establish a chain of
    evidence on the vest outside the presence
    of the jury."
    In his brief, defendant also admits that the court orally
    denied defendant's motion to suppress the vest and other
    evidence, just before opening statements of counsel, and
    filed the denial as written order No. 213.    Having acknowledged
    and accepted the rulings, the defendant cannot now in good
    faith claim to have been prejudiced by the court's "failure
    to rule" in this matter.
    Defendant's objections to the admission of the vest
    and testimony regarding it arose from conflicting testimony
    at the suppression hearing and inconsistent claims by certain
    officers as to when, how, and by whom the vest was seized,
    bagged and tagged as evidence.    The defendant argues that
    the State has failed to establish that (1) the vest was
    connected with the crime, and (2) the vest was not contamina-
    ted by glass after it was put with the other evidence in
    this case.
    Officer Meddock (and his partner Officer Sinnott) testi-
    fied both at the suppression hearing and at trial that Meddock
    had picked up the vest and other clothing along the chase
    route on River Road minutes after they heard of the chase
    on their police radio; that the items picked up were bagged
    and tagged immediately upon the officers' return to the
    police station and were left in the police lab.         Meddock
    testified that the clothing was dry although the night was
    damp.    There is some confusion in the officers' testimony as
    to which of them bagged and tagged the vest, but both agreed
    that it was placed in an evidence bag at police headquarters
    very early on the morning of the accident.         The tag on the
    bag containing the vest is written and signed by Officer
    Sayer, who was in charge of the police lab at the time.
    Sayer was uncertain how the vest got into the police lab,
    stating at different times that he thought the vest had been
    handed to him at the scene of the crime and that the vest
    was seized at the hospital.        Evidence from other sources
    strongly indicates that no vest was taken from the hospital
    and this vest was the only one in evidence in the case.
    Sayer admitted at the suppression hearing and trial,
    that it was possible someone had brought the bag to the
    police lab, bagged and tagged it, and that he had changed
    the tag to meet F . B . I .   acceptance standards, as he customarily
    did.    There is no evidence on the record to indicate Sayer
    changed the bag as well as the tag; and F . B . I .   agent McGinnis
    testified that the evidence bag containing the vest was
    "sealed" when he received it.
    At trial, three witnesses identified the vest by recol-
    lection.     Officer Meddock identified the vest, apart from
    tags and numbers, as the one he'd picked up with other
    clothing from River Road.        He recognized it because it was a
    J.C. Penney snap-front vest with "a red substance on it
    right across the front."      He also testified that the clothing
    was dry when he picked it up ("Hadn't been laying there very
    long.") and the shirt, vest and shoe were within a few feet
    of each other along a course strewn with boxes and papers
    bearing the name Wald.      Officer Sinnott stated, "This appears
    to be the vest that     . . . Officer Meddock         had picked up.    ..
    [Alt the station I tagged this garment, and I remember
    seeing what appeared to be like blood on the vest here, it
    seems to   --   the stain's still here."     Finally, F.B.I. Agent
    McGinnis testified that the vest was the same one that
    "arrived sealed in a plastic bag."         The testimony of these
    men is sufficient to establish the identity of the vest and
    its relation to the crime.
    Thus, there is strong evidence from Officers Sinnott
    and Meddock that the vest was picked up along the chase
    route and was immediately bagged and placed in the police
    lab well before Officer Sayer arrived there with the evidence
    - had bagged and tagged at the victim's home, i.e., the
    he
    bedsheet, window glass and other items.           Officer Sayer
    testified that he mailed the bagged evidence to the F.B.I.
    lab.   Agent McGinnis testified that the vest was still
    protectively bagged when it reached the F.B.I. lab.             We are
    not persuaded by defendant's speculation that the bagged
    glass could somehow have contaminated the bagged vest.             Our
    skepticism is increased by the F.B.I. expert's testimony
    that the material of the vest was so smooth and closely-
    woven that glass particles would not easily have become
    imbedded in it.     Nor do we accept that the officers' failure
    to remember who tagged the vest implies that someone altered
    the sealed bag or tampered with the vest.
    In State v. Close (1981),           Mont   .        -,     
    623 P.2d 940
    , 947-948, 38 St.Rep. 177, 186, this Court stated:
    "The general rule concerning chain of evidence
    foundation is this:
    "'The State must identify the particular exhibit
    as relevant to the criminal charge and must show
    prima facie that no alteration or tampering with
    the exhibit has occurred  .   .
    . Once that has been
    done, the burden - proving alteration shifts to
    of
    appellant.  .. ' State v. Burtchett (1974), 1 6 
    5 Mont. 280
    , 287, 
    530 P.2d 471
    , 475. (Emphasis
    added. ) "
    And in State v. Nelson (1978), 
    178 Mont. 280
    , 288, 
    583 P.2d 435
    , 439, we approved the State's argument:
    "'It was not incumbent upon the state to prove
    that it could not have been tampered with. It
    was not necessary that all possibility of its
    having been tampered with should be excluded
    by affirmative testimony. [Citation omitted.]
    It was only necessary to identify the pack-
    age, and to make prima facie showing that there
    has been no substantial change in it to warrant
    its introduction into evidence.' State v. Wong
    Fong (1925), 
    75 Mont. 81
    , 87, 
    241 P. 1072
    , 1074
    Cf. State v. Rumley (1981),      Mont.      I
    
    634 P.2d 446
    , 449, 38 St.Rep. 1351A, 1 3 m
    We find that the State made a prima facie showing that
    the vest was not substantially changed after it was seized,
    and that defendant failed to subsequently meet his burden of
    proving alteration.
    Determining adequacy of foundation is within the trial
    court's discretion.   State v. Armstrong (1980),    Mont.
    find no abuse of discretion.
    VII.
    Defendant claims that the trial court's denial of his
    repeated requests to depose the State's expert F.B.I. witnesses
    in Washington, D.C., deprived him of his right to confront
    witnesses and his right to adequate representation by counsel.
    The trial court denied both defendant's request for in-
    person deposition and his request for deposition by written
    interrogatories under oath.     The record indicates that
    attempts by the defendant to question the F.B.I. witnesses
    by telephone had been unsuccessful because of F.B.I. restric-
    tions on the dissemination of information by telephone.
    Sections 46-15-201 (1) and 202 (2), MCA, provide that the
    trial court may order the deposition of a material witness
    in person or by written interrogatories when the witness is
    a non-resident who refuses to provide relevant information
    and "it is necessary to take his deposition in order to
    prevent a failure of justice."    The statutes are obviously
    discretionary.     The Commission Comment to sections 46-15-201
    and 202, MCA (Annotations), refers to "the limited use of
    depositions in criminal cases," and states that "they are
    only to be used when the state or defendant needs a deposition
    to avoid the loss of a witness material to the case."
    The F.B.I. witnesses were to testify at trial; they
    would be subject to cross-examination by the defendant.     The
    trial court indicated that defendant could request a continu-
    ance to allow him to meet the testimony of the F.B.I. experts;
    defendant made no request for a continuance.    The State had
    allowed defendant access to its files, including the F.B.I.
    reports, and had released certain evidence to the defendant,
    e.g., the vest, the bedsheet, and glass particles from the
    victim's window.    The court had appointed a glass expert and
    a crime scene expert, who could aid defendant in analyzing
    the evidence.
    Clearly, there was no danger that the F.B.I. witnesses
    would be lost to the defendant.    Furthermore, defendant had
    access to physical evidence, information and expert help,
    which would allow him to adequately cross-examine the F.B.I.
    witnesses.   Defendant chose not to ask for a continuance.
    We find no abuse of discretion and no evidence of prejudice.
    No error.
    VIII.
    Over defendant's objection, and after rejecting defendant's
    more extensive instruction       flight, the trial court gave
    the following instruction:
    "The flight of a person immediately after the
    commission of a crime, or after he is accused
    of crime, is not sufficient in itself to es-
    tablish his guilt, but is a fact which, if
    proved, may be considered by you in light of
    all other proved facts in deciding the ques-
    tion of his guilt or innocence. The weight
    to which such circumstance is entitled is a
    matter for the jury to determine."
    Defendant now alleges that the words "immediately after the
    commission of a crime" suggested to the jury that the high
    speed chase began at the victim's home just after the homicide.
    Defendant also argues that this instruction must be considered
    together with the acknowlegement by the trial court in the
    Great Falls Tribune case, supra, that the media covering
    this crime "lead the public, and prospective jurors, to
    the conclusion that the chase came about as a result of the
    discovery of the slaying and attempt to escape from the
    scene by the accused."    According to the defendant, under
    the circumstances, the instruction could have caused the
    jury to ignore other explanations offered by the defendant
    for his flight.    We find no reversible error in the giving
    of the instruction.
    The transcript reveals that the evidence presented at
    trial firmly established, not once, but many times, that the
    chase began after a routine traffic stop approximately an
    hour after the homicide and some distance from the victim's
    residence.    The State, in its closing argument, several
    times drew the jury's attention to the "routine traffic
    stop" on River Road, at a time when no one in Great Falls
    knew that something had happened to Mabel Wald.     In fact,
    much of the State's emphasis on closing was that it was the
    wild flight after an unimportant stop by police that gave
    rise to the inference that defendant was guilty of more than
    speeding or a faulty taillight.   The State also argued in
    closing that defendant returned to the Elbow Room Bar after
    the homicide and before the chase.     Finally, the defense
    itself, in closing argument, several times emphasized the
    circumstances of the chase.   At one point, defense counsel
    said to the jury:
    "The State would have you believe the high-
    speed chase started immediately after the
    homicide of Mabel Wald. We know that's not
    so. It didn't originate from the scene of
    the homicide; it originated from River Road."
    Technically, the instruction was incorrect; defendant
    did not flee from the police immediately after the crime.
    He did, however, flee so shortly after the time the crime
    was committed that flight would have been a reasonable
    response to the traffic stop if he had committed the crime.
    The jury was instructed that they could consider flight
    along with other circumstances in determining defendant's
    guilt or innocence.   Considering the many references to and
    explanations of the time and place of the flight, we do not
    think any reasonable juror would have been misled by the
    instruction.
    This Court has held that error in instructing the jury
    constitutes harmless error when "the offensive instruction
    could not reasonably have contributed to the jury verdict."
    State v. Hamilton (1980),      Mont.   -1     ,
    - 
    605 P.2d 1121
    , 1132, 37 St.Rep. 70, 82-83, cert. denied (1980), 
    447 U.S. 924
    , 
    100 S. Ct. 3017
    , 
    65 L. Ed. 2d 1117
    .    This emphasis
    upon the possible impact of an improper instruction upon a reasonable
    jury is consistent with Harrington v. California (1969), 
    395 U.S. 250
    , 
    89 S. Ct. 1726
    , 
    23 L. Ed. 2d 284
    .          See also State v.
    Sandstrom (1979),        Mont.         ,   
    603 P.2d 244
    , 36 St.Rep.
    2099 (constitutional error in instructions).
    We need not find that the entire instruction had no
    influence upon the jury; it is reasonable to assume that
    they considered the implications of defendant's dramatic
    flight.     But we do find that the part of the instruction
    which was technically incorrect could not reasonably have
    contributed to the verdict.      No error.
    IX.
    Defendant claims that he was denied due process, effective
    assistance of counsel and a fair trial because the trial
    court failed to properly rule on a number of defendant's
    motions, before, during, and after trial.         He alleges fifteen
    instances of the court's failure to rule at all, or ruling
    without stating grounds or without providing notice.
    Many of the alleged instances of judicial error in
    ruling have been discussed above, and we have held either
    that the defendant was aware or should have been aware of
    the trial court's position, or that the defendant has failed
    to show prejudice, and the error, if any,was harmless.         We
    held that Wilson v. United States, supra, was not controlling
    in this state, and the trial court's failure to grant defendant's
    motion for a Wilson-type post-trial hearing was not error.
    The remainder of defendant's charges of error are unsupported
    by facts and law and are devoid of any showing of prejudice
    to the defendant.    We decline to consider such "bald assertions"
    of error.    McGuinn v. State (1978), 
    177 Mont. 215
    , 581 ~ . 2 d
    417.
    We emphasize that we in no way approve of or countenance
    the failure of a trial court to properly rule upon defendant's
    motions.    Were there an adequate argument presented by
    defendant showing prejudice or constitutional error and
    supported by authority, such a failure could well result in
    reversal.
    X.
    Defendant raises a great many mini-issues, often stated
    in one or two sentences, with little or no reference to
    relevant facts and applicable law.        Such a "shotgun" approach
    serves no useful purpose and may tend to obfuscate legitimate
    issues by peppering them with irrelevant asides.        It is not
    the function of this Court to research and argue issues for
    counsel.    Wherefore, when such issues are raised, we will
    address them briefly, if they warrant consideration at all.
    Defendant raises a one-sentence allegation that his
    right to speedy trial was denied.       We disagree.   More than
    nineteen months elapsed between the time the information was
    filed and the time voir dire began, easily enough to raise
    the type of inquiry mandated by Barker v. Wingo (1972), 
    407 U.S. 514
    , 
    92 S. Ct. 2182
    , 
    33 L. Ed. 2d 101
    , and its many progeny
    in Montana.   A review of the record, however, indicates that
    most, if not all, of the delay in this case was attributable
    to efforts by the parties and the District Court to ascertain
    defendant's fitness to stand trial, or to consideration by
    the court of defendant's barrage of pretrial motions.       Both
    the State and defendant pressed for speedy trial during the
    lengthy pretrial proceedings.        Ordinarily, prejudice will be
    presumed in the event of unreasonable delay of trial by the
    State.   Here the State was not primarily responsible for the
    delay, and if anything, the delay worked to the advantage of
    defendant, whose physical and mental improvement for some
    months after the accident is noted in the record.     We find
    no error here.
    Defendant claims the trial court stated, on July 9,
    1979, that he was unfit to proceed to trial, then, without
    explanation, reversed that ruling in October and found him
    fit to proceed; and such a reversal was one of many arbitrary
    actions by the trial court which resulted in the denial of a
    fair trial.   Defendant's argument is disingenuous.
    The trial court stated, in its July 9, 1979, order:
    ". . .[T]he accused lacks Fitness to Proceed
    within the meaning of that term as used in
    Sec. 46-14-221, et seq., M.C.A., and accord-
    ingly, further proceedings in this case are
    STAYED for the reasons, and upon the terms
    and conditions hereinafter set forth."
    Those "terms and conditions" included continuance of trial
    date and a request by the court for further evaluations and
    arguments as to the physical and psychological condition of
    the defendant.   The transcript of a separate hearing held on
    July 16, 1979, contains arguments by counsel regarding the
    meaning of the July 9, 1979, order, followed by this state-
    ment from the court:
    "I am not persuaded. . . that the court's
    order was a declaration that Mr. Austad was
    unfit to proceed. I think the requisite of
    that order, and the proceedings which the
    court has ordered, was to make some factual
    determination of Mr. Austad's fitness to
    proceed to trial. .  .If I had made the
    finding that he was unfit to proceed pur-
    suant to statute, then as [the State] point-
    ed out, the court would have had to make
    some disposition of the defendant, pending
    the overcoming of these disabilities.
    "What we're engaged in now are those hear-
    ings which will make finally a determination
    of whether Mr. Austad is fit to proceed. . ."
    Defendant cannot in good faith argue that he was unprepared
    for the October ruling of the court that defendant was fit
    to proceed to trial.    There is no error here.
    While defendant does not number among his issues a
    challenge to the sufficiency of the evidence presented, he
    devotes a number of pages to an argument that the case
    against him was circumstantial and "left 15 reasonable
    doubts," which he lists.   We point out to defendant that the
    correct test here is whether there is substantial evidence
    supporting the conviction when that evidence is viewed in
    the light most favorable to the State, substantial evidence
    being such relevant evidence as a reasonable mind might
    accept as adequate to support a conclusion.   State v. Wilson
    (1981)         Mont.     , 
    631 P.2d 1273
    , 1278-1279, 38 St.Rep.
    1040, 1047.    In Wilson, we found this standard did not fall
    short of that articulated by the United States Supreme Court
    in Jackson v. Virginia (1979), 
    443 U.S. 307
    , 319, 99 S.Ct.
    ".. . the relevant question is whether,
    after viewing the evidence in the light
    most favorable to the prosecution, -
    any
    rational trier of fact could have found
    the essential elements of the crime beyond
    a reasonable doubt."
    The State is not required to prove to this Court that
    all reasonable doubts were eliminated at trial, or that
    defendant's guilt has been proven to a moral certainty.
    Those determinations are for the jury.   We must only consider
    whether the record presents substantial evidence, as defined
    above, to support the conviction.   A review of the evidence
    presented to the jury firmly establishes that the jury's
    determination was supported by a sufficiency of the evidence.
    Defendant claims that the District Court designated him
    a dangerous offender and sentenced him.to life plus 120
    years in Montana State Prison in violation of constitutional
    provisions against cruel and unusual punishment.    Defendant
    maintains that the sentence was unfairly imposed upon "a
    paralyzed amnesiac defendant who is virtually helpless," a
    man who cannot possibly be a danger to society, who requires
    physical therapy, special equipment and assistance in
    dressing and in toilet endeavors.
    Ordinarily a sentence is not cruel and unusual punish-
    ment if it is within the maximum established by statute,
    Matter of Jones (1978), 
    176 Mont. 412
    , 420, 
    578 P.2d 1150
    ,
    1154; and review properly lies with the Sentence Review
    Division.   State v. Metz (1979),     Mont.       , 
    604 P.2d 102
    , 104, 36 St.Rep. 2261, 2264.
    The fact that defendant is partially disabled does not
    automatically render him incapable of harming other persons
    or society.   He is in possession of his faculties and is
    ambulatory, although confined to a wheelchair or walker.       He
    stands convicted of a brutal crime against a defenseless old
    woman.   This was not his first felony conviction; he was
    convicted of burglary on May 10, 1974.   These facts are
    sufficient to justify the designation of dangerous offender
    under section 46-18-404, MCA.   The determination was well
    within the discretion of the court.   The judge stated reasons
    for his decision.   We find no reason to change defendant's
    status as a dangerous offender.
    Defendant also argues that he is incapable of meeting
    all of his physical needs and fears that the prison will
    fail to protect his safety and his health.    The united
    States Supreme Court, in Estelle v. Gamble (1976), 
    429 U.S. 97
    , 
    97 S. Ct. 285
    , 
    50 L. Ed. 2d 251
    , held that a consideration
    of contemporary standards of decency reveals that prisoners'
    medical needs must be met.   The Court stated:
    "We therefore conclude that deliberate in-
    difference to serious medical needs of
    prisoners constitutes the 'unnecessary and
    wanton infliction of pain,' Gregg v. Georgia
    [(1976), 
    428 U.S. 153
    , 
    96 S. Ct. 2909
    , 
    49 L. Ed. 2d 8591
    , . .  . proscribed by the Eighth
    Amendment. This is true whether the indif-
    ference is manifested by prison doctors in
    their response to the prisoner's needs or
    by prison guards in intentionally denying
    or delaying access to medical care or inten-
    tionally interfering with the treatment once
    prescribed. Regardless of how evidenced,
    deliberate indifference to a prisoner's
    serious illness or injury states a cause of
    action under [42 U.S.C.] S 1983." Estelle
    v. Gamble, 429 U.S. at 104-105, 97 S.Ct. at
    291, 50 L.Ed.2d at 260.
    However, as the State points out, defendant's protest
    is premature.     The Montana State Prison is not without
    medical facilities and medical personnel.     We have no reason
    to believe that defendant's serious medical needs will be
    disregarded.    Defendant has made no showing that the Department
    of Institutions will confine him in the Montana State Prison;
    nor has he shown that, should he be so confined, the prison
    is incapable of meeting his medical needs.     He has certainly
    not shown that the State has inflicted or will unnecessarily
    and wantonly inflict pain or deliberately disregard his
    serious medical needs.     That he will not receive the solicitous
    care tendered him at home is unquestionably true; that his
    disability renders him more vulnerable to other inmates
    cannot be disputed.     Nevertheless, these facts do not raise
    defendant's sentence to the level of an Eighth Amendment
    violation.    We find no infliction of cruel and unusual
    punishment in this sentence.     Should defendant, during his
    time in custody, feel that the State's care has become so
    deficient as to amount to an Eighth Amendment violation, his
    remedy is a S1983 action.
    In summary, we note that, while there were a number of
    errors committed by the District Court in the long and
    complicated investigation and trial of this case, they were
    not substantial enough, singly or as a whole, to jeopardize
    defendant's right to a fair trial.
    Af firmed.
    We Concur:
    R
    Chief Justice
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