                                                No.     89-461

                              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                      1990



     STATE OF MONTANA,
                              Plaintiff and Respondent,


     JAMES AMSK,
                              Defendant and Appellant.



     APPEAL FROM:                 District Court of the Sixth Judicial District,
                                  In and for the County of Park,
                                  The Honorable Byron Robb, Judge presiding.


     COUNSEL OF RECORD:
                              For Appellant:
                                   Larry Jent, Bozeman, Montana
                              For Respondent:
                      I   -       Honorable Marc Racicot, Attorney General, Helena,
       cs                         Montana
       0          ,               Patti Powell, James Yellowtail, Assistant Attorneys
       r     -?
       Y   -i                     General, Helena, Montana
           --                     William Nels Swandal, Park County Attorney,
I:     i    -                     Livingston, Montana


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         .        .       .                           Submitted on Briefs:   May 10, 1990
       .--            . .
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                      -.                                          Decided:   May 25, 1990
     Filed:


                                                ".-
                                                 :    Clerk
Justice Diane G. Barz delivered the Opinion of the Court.


     James Amsk appeals from a jury verdict entered in the District
Court of the Sixth Judicial District, Park County, convicting him
of three counts of felony criminal sale of dangerous drugs in
violation of 3 45-9-101, MCA.   Defendant was sentenced to seven
years with five suspended on each count with the sentences to be
served concurrently. The District Court fined defendant $3,000 and
designated him a non-dangerous offender.   We affirm.
     Defendant was charged by information with sales of marijuana
to a police informant on November 11, 12 and 14, 1988.     Defendant
did not testify      trial.   Defendant's sole citation       error
concerns the following instruction given by the District Court:
          The law does not compel a defendant in a
          criminal case to take the witness stand to
          testify, and no presumption of guilt may be
          raised, and no inference of any kind may be
          found, from the failure of a defendant to
          testify.
          The law never imposes upon a defendant in a
          criminal case the burden or duty of calling
          any witness or producing any evidence.
          A defendant who wishes to testify, however, is
          a competent witness; and the defendant's
          testimony is to be judged in the same way as
          that of any other witness.
    The State offered this instruction.    The record reflects
objection by counsel for the defense nor did the defense offer an
alternative instruction.   Defendant argues that this instruction
improperly focused the attention of the jury on his failure to
testify in violation of his federal and state constitutional
rights.   He further asserts that giving such an instruction in the
particular circumstances of this case was plain error.
     Section 46-20-104(2), MCA, provides:
           Upon appeal from a judgment, the court may
           review the verdict or decision and any alleged
           error objected to which involves the merits or
           necessarily affects the judgment. Failure to
           make   a   timely   objection during trial
           constitutes a waiver of the objection except
           as provided in 46-20-701(2).
That section reads as follows:
           No   claim   alleging an    error    affecting
           jurisdictional or constitutional rights may be
           noticed on appeal, if the alleged error was
           not objected to as provided in 46-20-104,
           unless the defendant establishes that the
           error was prejudicial as to his guilt or
           punishment and that:
           (a) the right asserted in the claim did not
           exist at the time of the trial and has been
           determined   to  be   retroactive  in   its
           application;
           (b)   the prosecutor, the judge, or a law
           enforcement agency suppressed evidence from
           the defendant or his attorney that prevented
           the claim from being raised and disposed of;
           or

           (c) material and controlling facts upon which
           the claim is predicated were not known to the
           defendant or his attorney and could not have
           been ascertained by the exercise of reasonable
           diligence.
Section 46-20-701(2), MCA. Defendant's allegation of error clearly
does not fall within any of the three exceptions of 5 46-20-
701(2), MCA.   The only facts pertinent to his contention of error
are his decision not to testify and the giving of the instruction
by the District Court.    Both facts were known to defendant and
could not have been concealed from him by the State, the court or
law enforcement officials.
      Notwithstanding the above provisions, we have previously
acknowledged that our obligation to preserve the substantial rights
of criminal defendants may permit us to overlook the lack of a
timely objection.    State v. Wilkins (1987), 229 Mont. 78, 80-81,
746 P.2d 588, 589.    We invoke our power of discretionary review
sparingly and only in the presence of plain error.         Wilkins, 746
P.2d at 589.     The court orally assured Wilkins of his right to
testify at trial and asked him several times if he waived such
right.   Wilkins, 746 P.2d at 589.     In that case, this Court found
the   District   Court's   repeated   questioning    of   the    defendant
constituted plain error requiring reversal of the conviction.
Wilkins, 746 P.2d at 590.       Although the District Court did not
intend to comment on defendant's failure to testify, the effect of
the exchange between the court and the defendant was to focus the
attention of the jury on the lack of defendant's testimony.
Wilkins, 746 P.2d at 590.
      In the instant case, the court advised the jury in the first
two paragraphs of its instruction that the defendant had a right
not to testify and that his failure to testify could not be held
against him in any way.       This instruction would not have been
prejudicial if requested by the defendant and was not rendered
prejudicial merely because the State requested it.              We find no
error in the giving of such an instruction.         The third paragraph
of the instruction set forth the standard to be used by a jury in
evaluating the credibility of a testifying defendant.            This part
of the instruction should not be given when the defendant declines
to testify.   However, in the case at hand such error was harmless.
     Affirmed.




We concur:        /



       Chief Justice
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