                                                No.    88-364

                    IR THE SIJPREME COURT O F THE STATE O F MONTANA

                                                      1988




WI1,LIAM GEORGE H A R R I S ,         SR.,

                      P e t i t i o n e r and A p p e l l a n t ,
          -vs-

S T A T E O F MONTANA,

                      Respondent.




A P P E A L FROM:     D i s t r i c t C o u r t of t h e F o u r t h 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 C o u n t y of M i s s o u l a ,
                      T h e H o n o r a b l e J o s e p h Gary, ,:ridge     p r e s i - d in g .

COUNSEL O F RECORD:

          Fox A p p e l l a n t :

                      William George Harris,                  Sr.,     pro se, T e m p e , ~ r i z o n a

          For R e s p o n d e n t :

                      Hon. M i k e 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 , M o n t a n a
                      P a t r i c i a J. Schaeffer, A s s t . A t t y . G e n e r a l , H e l e n a
                      R o b e r t L . D e s c h a m p s , 111, C o u n t y A t t o r n e y , M i s s o u l a ,
                      Montana




                                                      S u b m i t t e d on B r i e f s :   Sept. 29,       1988

                                                         Decided:           November 15, 1 9 8 8

Filed:




                                                      Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

      This case comes on appeal from a denial of a petition
for post-conviction relief by the Fourth Judicial District
Court, Missoula County, the Honorable Joseph R .       Gary,
District Judge, sitting for the Honorable James B. Wheelin,
District Judge.
      The petitioner, William George Harris, Sr., was
originally convicted by iury trial on two of three counts of
of felony theft. Because we have once reviewed this case on
appeal, we will only briefly discuss the facts surroundinq
his original conviction.   See, State v. Harris (19841, ? L O
Mont. 382, 682 P.2d 185.
      In 1981, Carl Anderson, Doug Shuland and Thomas Michael-
Briggs, with the legal advice of their attorney, William
George Harris, Sr., formed the Go Devil Hotshot Company,
Inc., to provide expedited delivery service of needed parts
to oil fields. Between June, 1981 and the middle of August,
1981, petitioner received approximately $21,000 from various
contributors to be used on behalf of the newly formed
business.   Harris deposited $6,000 into a company bank
account, and used approximately $9,000 to cover business
expenses. The remainder of the contributions, approximat-ely
$6,000, could not be accounted for by petitioner.
      On June 1, 1982, petitioner was charged with three
counts of felony theft.       Count I charged Harris with
appropriating money owned by Carl Anderson, Joyce Anderson
and Doug Shuland. Count I1 charged Harris with appropriating
money contributed by Thomas Michael Rriggs. Finally, Count
111 charged Harris with appropriating money loaned the
company by Elsie Oliva, Joyce Anderson's mother. Petitioner
was convicted on Counts 3 1 and 111. He was sentenced on June
7, 1983 to serve two concurrent five year terms, all of which
were suspended except for 90 days, and placed on probation.
In addition, petitioner was ordered to pay a $5,000 fine to
the clerk of court and $5,000 restitution. Upon motion of
petitioner, the District Court issued an order staying
execution of judgment pending appeal.   This Court affirmed
the District Court's conviction, rejecting petitioner's
argument that his conviction resulted from the use of
perjured testimony. Harris, 682 P.2d 185.
      On March 7, 1985, petitioner alleges he received by
U.S. Mail a large and unidentified envelope containing a
document and letters indicating the State of Montana used
perjurious testimony and concealed exculpatory evidence in
order to obtain the original felony theft convictions. The
items included photocopies of an undated, unsigned letter to
former Chief Justice Haswell, a purported partnership
agreement dated March 3, 1981, and eight letters. Petitioner
argues these items were concealed from him during trial,
resulting in a denial of due process and mandating a new
trial.
       On March 19, 1985, petitioner filed a petition for writ
of habeas corpus in the Federal District Court in Arizona.
The State of Montana responded with a motion to dismiss for
failure to exhaust state remedies on claims raised by the
petition. The court granted the State's motion. An appeal
to the Ninth Circuit Court of Appeals ensued, resulting in an
affirmance on July 28, 1986.
      A petition for post-conviction relief was filed with
this Court on October 13, 1987. After a response filed by
the State, this Court dismissed the petition with leave to
file in the District Court. Harris did so on March 31, 1988.
The matter was submitted to the lower court on briefs and
affidavits pursuant to a stipulation waiving a hearing on the
matter.   The District Court entered its order May 11, 1988
denying relief.   From this denial, the petitioner appeals.
We affirm.
      The standard in Montana for intentional or negligent
suppression of evidence was enunciated in the case of State
v. Craig (1976), 169 Mont. 150, 153, 545 P.2d 649, 651,
holding:
           Only     intentional    or     deliberate
           suppression of evidence is a per se
           violation of due process sufficient to
           reverse or nullify a conviction.    .  .
           Negligent or passive suppression will.
           overturn a conviction if prejudice can he
           shown by the suppression.
          Generally, suppressed evidence must be
          material to either guilt or punishment.
          .  . .In order to amount to denial of due
          process, negligently suppressed evidence
          must be vital to the defense of the
          accused. .  . To obtain a new trial, the
          accused must show more than suppression;
          he must show the evidence was material
          and of some substantial use to him.     ..
          The    suppressed   evidence   must    be
          exculpatory, i.e., would have tended to
          clear the accused of guilt, to vitiate a
          conviction. (Citations omitted.)
      Petitioner spends a large portion of his brief
educating this Court on the definitions of "concealment" and
"possession."    However, citations to Black's Law and
Websterls International Dictionaries do not lend factual
support to his argument.       The facts indicate neither
intentional nor negligent suppression of evidence.        To
illustrate:
      Fact: the files were available to the petitioner prior
to trial, as evidenced by the affidavit by the Missoula
County Attorney, Robert L. Deschamps, 111.        Petitioner
readily admits in his brief that the State turned over the
balance of documents    in   its offices, as per      their   oral
discovery agreement.
      Fact:   the letters and purported partnership agreement
were documents of Go Devil Hotshot Service Company, Inc., and
were made available at corporate offices at all times prior
to trial. No evidence indicates the files in question were
ever searched or seized by state agents.
      Fact: Petitioner was aware, or should have been aware,
of these documents at trial. This knowledge is evident from
petitioner's own signature on the alleged partnership
agreement, purporting to authorize the appropriation of funds
from which petitioner was convicted of theft charges. It is
highly unlikely petitioner could have forgotten this
agreement, and yet at trial, he testified no written
agreement existed. No request for production of the document
appears on the record, nor was testimony presented as to its
loss or destruction. Now, petitioner baldly asserts it was
withheld by the State. Also, seven of the eight letters were
written by the petitioner to Carl Anderson.
      Evidence is not withheld or suppressed if the
petitioner had knowledge of the facts or circumstances, or if
the facts become available to him during trial.     State v.
Kirkland (1979), 184 Mont. 229, 243, 602 P.2d 586, 595.
While this knowledge completely dismisses petitioner's
argument as   to   suppression, we   go one   step   further and
examine the materiality.
      The evidence could hardly be called exculpatory. The
partnership agreement binds only Harris, Anderson and Shuland
to the "fees earned when paid" arrangement. Petitioner was
acquitted of the charge involving Anderson and Shuland. The
fact Briggs later read and approved the agreement onlv
acknowledges the partnership, it does not bind him to the
terms. Nor could the agreement bind Elsie Oliua. Therefore,
the counts which petitioner was convicted, Counts I1 and 111,
remain unaffected by the "newly discovered" partnership
agreement. The letters, though indicating Harris did legal
work for the company, do not mention the fee arrangement, nor
allude to a partnership agreement. We see no factual basis
for petitioner's claimed exculpatory use of the evidence.
State v. Atlas (Mont. 1986), 728 P.2d 421, 43 St.Rep. 2042.
      Finally, petitioner claims the lower court acted
vindictive and biased in its review of his post-conviction
petition.   We fail to see any indication of such behavior.
On the contrary, the lower court acknowledged the serious
nature of petitioner's charges. The District Court's order
and supporting memorandum thoroughly reviews the criteria to
determine whether a new trial was warranted, State v. Greeno
(1959), 135 Mont. 580, 342 P.2d 1052, and upon this basis,
found petitioner's charges without     merj-t.   Substantial
evidence supports his position.
      We affirm.




We concur:
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