                                         No. 13240

          I N THE SUPREME COURT OF TI-1E STATE OF MONTANA

                                            1976



STATE OF MONTANA,

                                 P l a i n t i f f and Respondent,

          -VS   -
RICHARD ELLIOTT BROOKS,

                                Defendant 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 E i g h t e e n t h J u d i c i a l D i s t r i c t ,
                       Honorable W. W. L e s s l e y , Judge p r e s i d i n g .

Counsel o f Record:

     For A p p e l l a n t :

                W i l l i a m E. G i l b e r t a r g u e d , Bozeman, Montana

     F o r Respondent:

                Hon. R o b e r t L. Woodahl, A t t o r n e y G e n e r a l , Helena,
                 Montana
                FJilliam J. Anderson, A s s i s t a n t A t t o r n e y G e n e r a l ,
                 a r g u e d , Helena, Montana
                Donald E. White a r g u e d , County A t t o r n e y , Bozeman,
                 Montana



                                                   Submitted :         September 2 , 1976

                                                      Decided :
                                                                      8EP 2 4 1976
Filed :
                    2 4 1976
Mr.   Chief J u s t i c e J a m e s T . H a r r i s o n d e l i v e r e d t h e Opinion of
t h e Court.

              T h i s i s a n a p p e a l by t h e d e f e n d a n t from a judgment o f

c o n v i c t i o n of a g g r a v a t e d a s s a u l t e n t e r e d upon a j u r y v e r d i c t

i n t h e d i s t r i c t c o u r t of G a l l a t i n County.

              Defendant was c h a r g e d September 2 , 1975, w i t h a g g r a v a t e d

a s s a u l t , a v i o l a t i o n of s e c t i o n 9 4 - 5 - 2 0 2 ( 1 ) ( c ) , R.C.M.   1947.

On t h i s same d a t e he was a r r a i g n e d , w i t h t r i a l b e i n g s e t f o r

September 1 6 , 1975, two weeks from t h e d a t e of a r r a i g n m e n t .

P r i o r t o arraignment,               d e f e n d a n t had r e t a i n e d and w a s r e p -

r e s e n t e d t h r o u g h o u t t h e a r r a i g n m e n t and t r i a l by J o s e p h B. Garyfi Esq.

T r i a l w a s h e l d on September 1 6 , 1975.                   Both a t t h e o u t s e t of t r i a l

and a t t h e c l o s e o f t h e S t a t e ' s c a s e Gary informed t h e d i s t r i c t

c o u r t t h a t he was r e a d y t o p r o c e e d .           After a jury t r i a l defendant

was c o n v i c t e d and s e n t e n c e d t o 1 0 y e a r s i n p r i s o n .        Following

t h i s c o n v i c t i o n , Gary s t a t e d by a f f i d a v i t :     that the d i s t r i c t

c o u r t informed him on September 11, 1975 ( n i n e d a y s a f t e r a r r a i g n -

ment and f i v e d a y s p r i o r t o t h e t r i a l d a t e ) t h a t t h e t r i a l would

be c o n t i n u e d due t o t h e p r e s s of o t h e r t r i a l s , whereupon h e

c e a s e d t r i a l p r e p a r a t i o n ; t h a t on September 1 5 , 1975, t h e d i s t r i c t

c o u r t informed him t h a t t r i a l would be h e l d as o r i g i n a l l y s c h e d u l e d

on September 1 6 , 1975; t h a t a s a r e s u l t he was u n a b l e t o a d e q u a t e l y

p r e p a r e f o r t r i a l s i n c e he d i d n o t i n t e r v i e w t h e d e f e n s e w i t n e s s e s

u n t i l t h e day of t r i a l ; t h a t he had no o p p o r t u n i t y t o i n t e r v i e w

t h e S t a t e ' s w i t n e s s e s and no t i m e t o p l a n h i s d e f e n s e .

              The o n l y i s s u e p r e s e n t e d on a p p e a l i s whether t h e d i s t r i c t

c o u r t , by i t s a c t i o n a s r e l a t e d by Gary, r e n d e r e d d e f e n d a n t ' s r e p -

r e s e n t a t i o n by c o u n s e l i n e f f e c t i v e .

              I t h a s been w e l l s e t t l e d by t h i s C o u r t and o t h e r s t h a t

a d e f e n d a n t i s e n t i t l e d t o e f f e c t i v e a s s i s t a n c e of c o u n s e l under

t h e United S t a t e s C o n s t i t u t i o n and t h e Montana C o n s t i t u t i o n of

1972.       For a d i s c u s s i o n of t h e c a s e s e s t a b l i s h i n g t h i s r i g h t s e e
the recent decision of this Court in State v. McElveen,

Mont   .- 544 P.2d
         ,           820, 822, 32 St.Rep. 1277.   In answering
the issue as presented this Court need not concern itself with
whether or not defendant was entitled to effective assistance
of counsel, but what constitutes "effective assistance of coun-
sel".
         We note the fact that counsel involved, Joseph B. Gary,
was retained by defendant and not appointed by the district
court.   Furthermore, Gary was present at every stage of the pro-
ceeding from arraignment to conviction.
         The rule for weighing the effectiveness of retained
counsel is quoted in McElveen, citing People v. Wein, 50 Cal.2d
383, 326 P.2d 457:
         " ' * * * The handling of the defense by counsel
         of the accused's own choice will not be declared
         inadequate except in those rare cases where his
         counsel displays such a lack of diligence and
         competence as to reduce the trial to a "farce or
         a sham" * * * . I "

Also see State v. Noller, 142 Mont. 35, 381 P.2d 293; People v.
Maldonado, 3 Ill.App.3d 216, 278 N.E.2d 225; Tompsett v. State of
                                                             ,1~6?
Ohio, 146 F.2d 95, 98, (6th Cir. 1944), cert.den. 324 U.S. .%s    ,
65 S.Ct. 916, 89 L.Ed 1424; Hendrickson v. Overlade, 131 F.Supp.
561 (N.D. Ind. 1955).
         Defendant had chosen and retained Gary to represent
him from arraignment through trial and was so represented with-
out any objection on defendant's part as to the competency of
counsel or the adequacy of the representation provided.     Now
after an adverse result at trial, and the affidavit of trial
counsel, defendant raises this objection.   This squarely meets
the rationale for applying the above stated test, as set out
in the Tompsett case:
         "The concept of this rule is that the lack of
         skill and incompetency of the attorney is imputed
         to the defendant who employed him, the acts of
           the attorney thus becoming those of his client
           and so recognized and accepted by the court,
           unless the defendant repudiates them by making
           known to the court at the time his objection to
           or lack of concurrence in them. A defendant
           cannot seemingly acquiesce in his attorney's
           defense of him or his lack of it, and after the
           trial has resulted adversely to defendant,
           obtain a new trial because of the incompetency,
           negligence, fraud or unskillfulness of his
           attorney."
           Applying the doctrines previously set forth and examining
the record of the trial, we find no abuse of defendant's right
to effective counsel.     All witnesses testified at the trial and
no new defense witnesses would be called should a new trial be
held.     Furthermore, defendant's trial counsel, through direct
and cross-examination, offered all defenses admittedly available
(self-defense, protection of his customers, and lack of cooper-
ation by local law enforcement).     Counsel stated in his affidavit
that lack of preparation hindered his planning of a defense and
effective trial tactics.     As stated by the Second Circuit Court
of Appeals in United States v. Denno, 313 F.2d 364, 374, cert.den.
372 U.S.   $ Ig 83
            %T,      S.Ct. 1112, 10 L Ed 2d 143:
           " * * * Poor tactics of experienced counsel,
           however, even with disasterous result, may
           hardly be considered lack of due process * *   *."
           The affidavit filed by Gary does not change the position
taken by this Court.     On two separate occasions, prior to trial
and at the close of the State's case in chief, Gary informed
the district court that he was ready to proceed.     In addition
to this, Gary had nine days following arraignment before the
district court informed him of its intention to continue the
case.    Examination of the record makes it appear that Gary did
not     enter the trial as flat-footed and totally unprepared as
is contended.    Gary provided defendant more than the minimum
required for effective assistance of retained counsel and the
trial, on record, was far from "a farce or a sham".
        Considering the facts, the district court record and

the doctrines applicable to this appeal, we find that the

district court did not render defendant's representation by
counsel ineffective.   In accor      the judgment is




We concur:
