                                                    NO.     84-467

                         IN' THE SUPREm COURT O THE STATE OF M N A A
                                               F              O T N

                                                            1985




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-

DAVID R D E WARNICK,
       O NY

                       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 S i x 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 County o f P a r k ,
                          The H o n o r a b l e Byron Robb, J u d g e p r e s i d i n g .



COUNSEL O RECORD:
         F


         For Appellant:

                       Madden, Knuchel & McGregor; Dan McGregor, L i v i n g s t o n ,
                       Montana


         For Respondent:

                       Ron. 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
                       W. N e l s Swandal, County A t t o r n e y , L i v i n g s t o n ,
                       Montana




                                                    S u b m i t t e d on B r i e f s :   Feb.   28,    1985

                                                                        ~ e c i d e d : May 1 3 , 1985


          Lfiji,   a        .
                            ;&   3

Filed:




                                                    Clerk
Mr. Justice John C.        Sheehy delivered the Opinion of the
Court.


        The District Court of the Sixth Judicial District, Park
County,     denied   David    Rodney    Warnick's     motion     for    a
continuance of trial and he was convicted of felony theft.
Warnick    appeals   the   conviction   on   the    grounds    that    the
District Court's denial of the continuance was an abuse of
discretion that deprived him of due process and a fair trial.
     On April 6, 1984, a burglary occurred at the Sterling
Hotel in Park County.        On April 9, 1984, relying on a tip,
the police recovered the stolen property in a green duffle
bag with the name "Victor Warnick" on it.          Victor Warnick was
contacted and stated he had given the bag to David Rodney
Warnick.    A pawn shop operator contacted by the police stated
that on April 6, 1984 David Rodney Warnick approached him
about selling some jewelry.      Rased on this and on a telephone
call from a Theresa Clemons to a Park County Deputy Sheriff,
Warnick was arrested.      He was arraigned on a charge of felony
theft on May 21 , 1984 and a public defender was appointed.
     Trial was set for July 23, 1984.        On July 17, 1984 at an
omnibus hearing, the trial date was changed to August 2,
1984.     The District Court suggested August I-, 1984 but both
attorneys would be out of the county on that date.            A hearing
on Warnick's motions for change of venue and disclosure of
informants' names was scheduled for July 25, 1984.
    On July 25, 1984, the District Court denied the motion
to change venue and granted Warnick's motion for disclosure
of the informants' names.       This was an oral order that was
reduced to writing on July 26, 1984.               The names of the

informants were not revealed to the defense attorney until
late on July 30, 1984.       The reason for the delay is not
clear.    Apparently the county attorney was out of town when
the order was made and the sheriff and police department were
relu.ctant to comply with the order.           Nels Swandal, Park
County Attorney, told the District Court:
      "THE COURT:   So that the record may be straight,
      Mr. Swandal, would it be correct the reservation or
      hesitancy about d.isclosing the names of these two
      people hasn't been through the County Attorney's
      office but rather the Sheriff's office.
      "MR. SVJANDAL :    The Sheriff and the Police
      Department, your Honor.    Frankly, the one that I
      disclosed yesterday, I don't think there should
      have been any hesitancy because he wasn't involved
      in any sort of informant or confidential informant
      tape situation. He was never promised that. The
      other one was in the State of Washington until
      today, and we couldn't get her here.        And the
      Police and I had a round concerning whether she
      would be disclosed or not.    And I have talked to
      her and she is willing to do an interview."
      On July 31, 1984, after talking with Stan Marchington,
one of the discl-osed witnesses, appellant's attorney moved
for a continuance because of the delay in disclosing the
informants' names.    The motion was denied.      The case came to
trial on August 2, 1984 and Warnick was convicted..
      Stan Marchington was called as a witness.         He was not an
informant, having    never   contacted    the police about       this
matter.     Theresa Clemons, the informant who contacted the
police, did not testify.     Marchington testified. that Clemons
was   sitting with   him   while   he   was   playing    cards   in a
Livingston bar when Warnick        approached her.       Marchington
testified    that she told him Warnick wanted           to   sell her
something.    She wanted Marchington to accompany her and he
complied.    Marchington, Clemons, and Warnick went in Clemons'
car to Warnick's brother's home.        Marchington testified that
Warnick left the car, went into his brother's garage, and
returned carrying a duffel bag.         He showed Marchington and
Clemons a     "bunch of coins."        Marchington testified       that
Warnick said he had stolen the items from Chester Johnson's
safe and he now wanted to sell it to them.               According to
Marchington, they declined the offer and returned to the
Sterling Hotel.
     At the Sterlj-ng, according to Marchington' s testimony,
Warnick   left    the   bag    in   Clemons'   car.      Clemons   and
Marchington urged him to take it but he refused, saying he
was tired of it.        Clemons and Marchington then drove from
Livingston to Emigrant where they buried the bag.
     What happened next appears in the record of the hearing
on the motion for discl.osure of informants.          Bradford Wilson,
a Park County Deputy Sheriff, testified that Theresa Clemons
called him on April 9, 1984 because they were acquainted.           He
testified that she was frightened and wanted to know what to
do with the stolen property.        She told him where the bag was
buried and he recovered it.            The officer testified that
although the police obtained the arrest warrant after talking
to Clemons, Warnick was already their suspect.
     The issue on appeal is whether the District Court abused
its discretion in denying the continuance motion when, with
trial   set   for August      2, the   informants' names were not
revealed to his attorney until late July 30 and the County
Attorney knew appellant's attorney would be out of the county
August 1.     We agree with appellant that the Park County
Attorney's office and the Park County Sheriff and Police
acted improperly in refusing to comply with the District
Court's ord.er to disclose the informants' names.         Rut in this
case we find this harmless error and agree with the District
Court that it was not grounds for granting a continuance.
       Section 46-13-202, MCA, is the applicable statute on
continua.nce.       It    states    in   part,    "(3)    All    motions      for
continuance are addressed to the discretion of the trial
court and shall be considered in the light of the diligence
shown on the part of the movant."                  In State v.          Paulson
(1975), 167 Mont. 310, 315, 538 P. 2d 339, 342, we expressed

the standard to be applied on appellate review of a motion
for continuance:
       "Motions for continua.nce are addressed to the
       discretion of the trial court and the granting of a
       continuance has never been a matter of right      .         ..
       The district court cannot be overturned on appeal
       in absence of a showing of prejudice to the
       movant. "
       Counsel     for    Warnick     should     have     been     told       the

informants'       names   immediately     after     the    judge's      order.
Warnick    has    clearly    established       error     but    there    is   no
prejudice.        The interview of Marchington on July 31, 1984
provided     no    information      supporting     Warnick's      innocence.
Appellant has not established how receiving the names on July
25 instead of July 30 wou1.d have changed the result of the

trial.     Reviewing the record. of the testimony of Marchington
and Bradford Wilson we find nothing exculpatory.                   Appellant
has established a serious disregard of a court order by the
County Attorney and the law enforcement agency but no harm.
       The principle that harmless error on the part of the

trial judge is not grounds for reversal is well established.
We agree that harmless error is not grounds for a continuance
of the trial.       In Chapman v. State of California (1966), 386
U.S.   18, 22, 87 S.Ct. 824, 17 L.Ed.2d            705, 709, the United.
States    Supreme    Court   declined     to     rule    that all       federal
constitutional violations           are harmful        error.     The     Court
upheld state and federal harmless error statutes and rules
stating "[all1 of these rules, state or federal, serve a very
useful       purpose      insofar        as    they         block      setting     aside
convictions for small errors or defects that have little, if
any, likelihood of having changed the results of the trial."
The Court went on to hold that before an error may be held
harmless the reviewing court must be able to state its belief
that the error is harmless beyond a reasonable doubt.                               This
Court has       followed      the    harmless         error       rule.      See, for
example, State v. Sandstrom (19791, 184 Mont. 391, 393, 603
P.2d 244, 245, where this Court held that because an error in
iury    instructions was           not    ha.rmless the             case had     to be
retried.
       The    harmless      error    rule       is     also       cod-ified. Section
46-20-701, MCA, states:
       ". . . No cause shall be reversed by reason of any
       error committed by the trial court a.gainst the
       appellant unless the record shows that the error
       was preiudicial."
and    Rule     14   of    the     Montana          Rules    of     Appellate      Civil
Procedure:
       ". . .  And no cause shall be reversed upon appeal
       by reason of any error committed by the trial court
       against the appellant, where the record shows that
       the same result would have been attained had such
       trial court not committed an error or errors
       against the respondent."
       In this case the District Court did                             not abuse     its
discretion in denying the continuance because, although it
was    a     serious      matter    for       the     State       to    withhold     the
informants' names until two days before trial, no prejudice
is demonstrated.          The record shows beyond a reasonable doubt
that the delay in providing Warnick with the informants'
names was       harmless because              the    informants could provide
nothing that would refute the State's case.                               In addition,
although Clemons was an informant, Warnick can hardly claim
she was an unknown informant.      This is not a case where the
defendant is being denied the opportunity to confront his
accusers because they are unknown to him.        Although he may
have been unaware that Cl-emons and Karchington were            the
informants, he had personal knowledge that they were involved
in the activities of the evening and could have sought them
out.
       It should be noted   that this Court does not condone
withholding names after the District Court ordered. the State
to disclose the names of informants.      The judge's order was
dispositive of this matter.     The constable as well as the
County Attorney must obey that order; their "concerns" or
"hesitancies" are    irrelevant.     We   call   to   the   State's
attention Ethical Consideration 7-13 of the Model Code of
Professional Responsibility.
       "EC 7-1.3    The responsibility of public prosecutor
       differs from that of the usual advocate: his- A
                                                   -
                                                         dutv
       is - -
       -  to seek justice, not merely to convict. This
       special duty exists because:      ( 1 F the prosecutor
       represents the sovereign and therefore should use
       restraint     in  the   discretionary    exercise of
       governmental powers, such as in the selection of
       cases to prosecute;        (2)     during trial the
       prosecutor is not only an advocate but he also may
       make decisions normally made by an individual
       client, and those affecting the public interest
       should be fair to all; and (3) - - system of
                                            in our
       criminal justice the accused - - - e
                                        is to be       n the
       benefit - - reasonable doubts. With respect to
                 of all
       evidence     and  witnesses, the prosecutor has
       responsibil-ities different from those of a lawyer
       in private practice:      the prosecutor should make
       timely disclosure to the defense of available
       evidence, known to him, that tends to negate the
       guilt of the accused, mitigate the degree of the
       offense, or reduce the punishment.         Further, a
       prosecutor should not intentional-ly avoid pursuit
       of evidence merely because he believes it will
       damage the prosecutor's case or aid the accused.
       (Emphasis added.)
       We affirm the District Court's denial of a continuance
because appellant has not shown prejudice but we in no way
condone the actions of the law enforcement agencies or the
County    Attorney.    The   judgment   of   the   District       Court           is

af firmed.


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