                                 No. 83-247
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       1985



STATE OF MONTANA,
                  Plaintiff and Respondent,
      -vs-
CHESTER 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   &   Harr; Richard Volinkaty,
                  Missoula, Montana

     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.       At the meeting, the
appellant produced    the   jackhammer,   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      that    he    did   not know that   the
property was      stolen and   he     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.                        (1978), 176
Mont.    98,     117,      576    P.2d    711,     722,    this   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    there      was    no   prejudice     in    allowing     the
demonstration.         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    in the      appellant's brief         to this Court.            In
addition,       appellant         complained       that     there       were   no
precautionary         instructions       concerning       this    demonstration
given    to    the     jury.       However, he       did    not   propose      any
instructions          to    the     court     as    required       by     section
46-16-401 (4)(a), MCA.
        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.                     As noted
in   the      respondent's      first     brief     to   this       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    appellant       refers    to    Wedell    as    an    exculpatory
witness       and    alleges     "[tlhis       witness     corroborated       the
defendant s         testimony     and,        in   fact,      exonerated      the
defendant."         Even if we were to include the statement as to
how Wedell received the jackhammer, his                       statement is so
inconsistent that         it    has     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
destroyed the defendant.          Wedell would not have been helpful
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    matter    to   the   District    Court   for
evidentiary hearing.       After the hearing on February 29, 1984,
the presiding judge, the Honorable Douglas G. Harkin, entered
extensive findings of fact and conclusions of law.              Among the
concl-usions are the following:
             "12. The allegations of ineffectiveness
             raised by the Defendant in this matter
    I        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
            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.               Hall, supra, that "An
attorney's        reputation    is     his   most     prized    possession."
Appellant's        counsel     might     have       conducted     the    trial
differently,        however,     "[tlhe      fact      that      some    other
lawyer    . . .   would have done differently           ...     is no ground
for   branding      the    appointed     counsel      with     opprobrium   of
ineffectiveness.          Or infidelity, or incompetency                ...   "
State v.     Lopez     (Mont. 1980), 605 P.2d            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:         A




  ief Justice


      I     /
