                              No.    89-617
            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1990


STATE OF MONTANA,
            Plaintiff and Respondent,
     -vs-
RICKIE LEE CLELAND,
            Defendant and Appellant.



APPEAL FROM:     District Court of the First Judicial District,
                 In and for the County of Lewis and Clark,
                 The Honorable Thomas C. Honzel, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                Edmund F. Sheehy, Jr.; Cannon            &   Sheehy, Helena,
                Montana
            For Respondent:
                Hon. Marc Racicot, Attorney General, Helena, Montana
                John Paulson, Assistant Attorney General, Helena,
                Montana
                Mike McGrath, County Attorney, Helena, Montana
                Lisa Leckie, Deputy County Attorney, Helena, Montana


                              Submitted on Briefs:           November 1, 1990
                                              Decided:       December 31, 1990
Filed:
Justice Diane G. Barz delivered the Opinion of the Court.

     Cleland appeals a jury decision of the District Court of the

First Judicial District, Lewis and Clark County, finding him guilty
of two felonies, theft and intimidation.   We affirm.
     Cleland presents two issues:
     1.   Was Clelandls conviction of intimidation invalid because
the State failed to show the constitutionally required elements of
5 45-5-203 (1)( c ), MCA?

     2.   Should Clelandlsconviction be reversed because he was not
represented by competent counsel?


                                 I

     Late in the evening of June 25, 1989, an imported French
saxophone belonging to Joe Thompson, a teacher and part-time
musician, was stolen from the Eagles building in Helena, Montana.
The saxophone case and accessories, including microphones, were
also taken.   Thompson valued the saxophone, a rare model no longer
manufactured, at $10,000 to $12,000.    A local newspaper reported
the theft, and Thompson placed an advertisement offering a reward
and listing his telephone number.
     On June 28, 1989, Thompson received a telephone call from a
man who said that he had found the saxophone. Thompson offered the
caller $250 for its return, but the caller wanted $1,500. Thompson
told the man that he thought that he might be able to raise $500,
and the caller promised to phone the following evening, requesting
Thompson not to notify police.

                                 2
     However, Thompson reported the call to police who arranged for
a trap, enabling the telephone company to quickly trace any
incoming calls, to be placed on Thompson's phone.       The police
officers also arranged for calls to be tape-recorded.       On the
evening of June 29 Thompson received a second call.     The caller
threatened to destroy the saxophone if Thompson did not pay $500
or if the police became involved.   He instructed Thompson to meet
him near Vigilante Stadium and Helena Middle School.
     While the call was in progress, the telephone company traced
it to a pay phone on the corner of Montana Avenue and Prospect
Avenue in Helena.   An officer drove to the location and observed
a man in red shorts and a white t-shirt using the telephone.   The
officer then drove to the stadium to monitor the electronic
transmitter Thompson was given to wear during the exchange. At the
stadium Cleland, dressed in red shorts and a white t-shirt,
approached Thompson's truck from some bushes carrying the saxophone

case and wearing a sock on his hand.         Cleland climbed into
Thompson's truck, gave Thompson the saxophone case containing the
saxophone, and took the money.   As Cleland was counting the money,
the officer came up to the truck and placed Cleland under arrest.
     Subsequently, on two separate occasions, a police officer went
to the apartment where Cleland had been living and obtained consent

from a woman who was just moving into the apartment to search the
premises.   The officer recovered some of the missing microphones
and a piece of Thompson's saxophone wrapped in a sock matching the
one Cleland had on his hand when he was arrested.         At trial
Clelandls counsel objected to the searches on the ground that the
officer had not ascertained whether the woman who agreed to the
search had authority to consent since she was just moving into the
apartment.
     Witnesses placed Cleland at the Eagles during the evening of
June 25.     One witness testified that Cleland left after the band
quit playing and that he later saw Cleland at his mother's house
nearby with a large object in his hands.
     The jury delivered a guilty verdict                 from which    Cleland

appeals.




     Was Clelandls conviction of intimidation invalid because the
State failed to show the constitutionally required elements of 5
45-5-203 (1)(c), MCA?
     Cleland contends that his conviction is invalid because the
State    failed to       establish   the    constitutional      requirement of
circumstances which reasonably tended to produce a fear that his
threat     would    be    carried    out.     Cleland     was    convicted   of
intimidation, a felony, pursuant to 5 45-5-203(1)(c), MCA.
     An     earlier       version    of     this   statute      was   declared
unconstitutional by the Ninth Circuit Court of Appeals in Wurtz v.
Risley    (9th Cir. 1983), 719 F.2d 1438, on the ground that the
statute was        overbroad   and   impermissibly      impinged upon    First
Amendment expression. The Court of Appeals found that the statute

regulated pure speech, rather than conduct, and stated:
           It is true that threats have traditionally been
      punishable without violation of the first amendment, but
      implicit in the nature of such punishable threats is a
      reasonable tendency to produce in the victim a fear that
      the threat will be carried out.     (Citations omitted.)
      Section 203(l)(c) is not so limited. It is possible by
      judicial construction to read an element of instilling
      fear into the term 'threat,' id., but the Supreme Court
      of Montana has imposed no such narrowing construction
      upon section 203(1)(c).   "[A] statute . . . which makes
      criminal a form of pure speech, must be interpreted with
      the commands of the First Amendment clearly in mind."
Wurtz, 719 F. 2d at 1441 (quoting Watts v. United States (1969), 394
U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d        664, 667 (per
curiam)).    The Wurtz Court also questioned the type of criminal
conduct threatened, which at that time was "any criminal offense,"
declaring that it should not be a felony to threaten minor
infractions.
      In 1985 the Montana Legislature amended the statute to conform
to   the   requirements of Wurtz   by   adding   the phrase,   ''under
circumstances which reasonably tend to produce a fear that it will
be carried out1' and by changing "commit any criminal offense1'of
the former version to "commit any felony."       The current statute
under which Cleland was convicted reads:
          A person commits the offense of intimidation when,
     with the purpose to cause another to perform or to omit
     the performance of any act, he communicates to another,
     under circumstances which reasonably tend to produce a
     fear that it will be carried out, a threat to perform
     without lawful authority any of the following acts:


      (c) commit any felony.
Section 45-5-203 (1)(c), MCA.
      Since the federal court's decision in Wurtz, we have examined
this same statutory provision, 5 45-5-203 (1)(c), MCA, and other
portions of the intimidation statute.    See State v. Hembd (1989),
235 Mont. 361, 767 P.2d 864; State v. Lance (1986), 222 Mont. 92,
721 P.2d 1258; State v. Ferrel (1984), 208 Mont. 456, 679 P.2d 246.
In Ferrel, we reversed a conviction of intimidation pursuant to 5
45-5-203(l) (c), MCA, on the ground that the defendant's verbal
threat that she would keep proceeds of a check belonging to her
employer until he had paid her the value of a garden that she had
planted did not reasonably tend to produce fear in the victim that
the threat would be carried out.      Based on the Court of Appeals
decision in Wurtz, the defendant was not guilty of conduct which
could be constitutionally punished.    Ferrel, 208 Mont. at 461-62,

679 P.2d at 227-28.
     In Lance we found constitutional subsection (b) of 5 45-5-
203 (I), MCA, which prohibits threats to subject persons to physical
confinement or restraint.    The defendant had written letters to
various public officials and others threatening to take a hostage

for the purpose of focusing public attention on his divorce
settlement.   Using a test enunciated in recent United States
Supreme Court decisions that ' ' law should not be invalidated for
                              'a
overbreadth unless it reaches a substantial number of impermissible
application^,^^^ rather than the test applied in Wurtz, we found no
First Amendment violation.   Lance, 222 Mont. at 100-102, 721 P.2d
at 1264-65 (citing New York v. Ferber (1982), 458 U.S. 747, 771,
102 S.Ct. 3348, 3362, 73 L.Ed.2d 1113, 1132).     The United States
Supreme Court has recently reaffirmed its reliance on the "real and
~ubstantial~~ for First Amendment overbreadth issues in Osborne
           test
v. Ohio (1990), - U.S. - ,       110 S.Ct. 1691, 1697, 109 L.Ed.2d 98,

111.     In Lance we held that, as applied to the defendant, the
statute was constitutional even though the threats constituted pure
speech without any requirement of an overt act.       Lance, 222 Mont.


       In the case under consideration, we find that circumstances
reasonably tended to produce a fear that Cleland's threats would
be carried out.     At trial the jury heard the taped conversation
between Thompson and Cleland and had a typed transcript of the
conversation to follow as they listened to the tape.            Cleland
states on the tape:

       And there better be no kind of cops, no f     detectives,
       no unmarked cars, nobody else f       come around 'cuz if
       you do that hey you might as well forget the whole f
       thing man I'm gonna smash it up so nobody knows what
       happened to it and where it's gone, do you hear me?
Cleland later repeats his threat:
       I said two thousand last night and I agreed with you for
       five hundred dollars, now you're f    putting me off and
       you ask me a bunch of questions. I don't know if you're
       getting me set up or not. Hey m          you get me set
       up right now you know what    .. . you lost every f
       thing 'cuz I don't have it with me I'm making a run.
At another point Cleland said:
       Like I say I '11 show you the part I 've taken out of there
       you ain't gonna see me m       . I don't want you looking
       at me and I don't want you saying asking me who I am.
       If you try to f-    swing on me and f-    me up m    I  hey
       you're gonna lose it hear me?


During the course of the conversation, Cleland makes several other
similar threats.       Cleland   also reveals on the tape that he
understood the value of the saxophone to Thompson, which he had
read about in the newspaper.
     Cleland threatened Thompson with felony criminal mischief
which consists of purposely or knowingly damaging or destroying
without consent property of another exceeding $300 in value.
Section 45-6-101, MCA. As we stated in Lance, "'[wlhat is a threat
must be distinguished from what is constitutionally protected
speech.'I1   Lance, 222 Mont. at 104, 721 P.2d at 1266 (quoting
Watts, 394 U.S. at 707, 89 S.Ct. at 1401, 22 L.Ed.2d at 667).
Threats made in jest or political hyperbole are not punishable
under the statute.       [C]austic, abusive, and robust speech is
fully protected until it rises to the level of threats which cause
harm to society."   Lance, 222 Mont. at 105, 721 P.2d at 1267.     The
question of whether an intention to commit a felony is present must
be decided on the basis of an objective standard, and "whether a
statement constitutes a true threat is to be determined by the
trier of fact."   Lance, 222 Mont. at 104, 721 P.2d at 1267 (citing
United States v. Kelner (2d Cir. 1976), 534 F.2d 1020 and United

States v. Merrill (9th Cir. 1984), 746 F.2d 458).
     The language on the tape made it clear what Cleland intended.
We find that the circumstances under which Cleland voiced his
threats to Thompson--his demand for more money, his possession of
the saxophone which made his threats to destroy or otherwise
dispose of the instrument plausible, and his forceful manner--
reasonably tended to produce a fear that the threats would be
carried out.   We hold that Clelandls conviction pursuant to   §   45-
5-203 (1) (c), MCA, does not violate constitutional principles of
free speech.




     Should Clelandls conviction be reversed because he was not

represented by competent counsel?
     Cleland claims that he was deprived of his Sixth Amendment
right to counsel because his appointed lawyer did not adequately
defend him.    Specifically, he alleges the following:    (1) his
counsel did not raise the issue of the constitutionality of the
intimidation statute as applied to him; (2) his counsel failed to

file a pre-trial motion to suppress the evidence obtained in the
searches of the apartment; and (3) Cleland was requested to sign
a letter prepared by counsel "trying to force his client to accept
a plea bargain and to basically exonerate counsel for Cleland with
regard to his representation."

     In evaluating whether defendant received competent assistance

of counsel, we apply the two-part test enunciated in the seminal
case of Strickland v. Washington (1984), 466 U.S. 668, 104 s.ct.


    First, the defendant must show that counsel's performance
    was deficient. This requires showing that counsel made
    errors so serious that counsel was not functioning as the
    "counsel1' guaranteed the defendant by the Sixth
    Amendment.   Second, the defendant must show that the
    deficient performance prejudiced the defense.        This
    requires showing that counsel's errors were so serious
    as to deprive the defendant of a fair trial, a trial
    whose result is reliable.
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693;
see State v. Johnstone (Mont. 1990), 798 P.2d 978, 987, 47 St.Rep.
1715, 1726; State v. Albrecht (Mont. 1990), 791 P.2d 760, 764, 47
St.Rep. 805-806.   As is evident, the burden is heavy on one who

seeks to reverse a judgment on the basis of ineffective assistance
of counsel. State v. LaValley (1983), 203 Mont. 393, 398, 661 P.2d
869, 872.    [Tlhe proper standard for attorney performance is that
of reasonably effective assistance."   Strickland, 466 U.S. at 687,
104 S.Ct.    at 2064, 80 L.Ed.2d    at 693.    Reasonably effective
assistance does not mean that the defendant is guaranteed an
acquittal.    The defendant must show that the errors allegedly
committed stem from neglect or ignorance, rather than informed
professional judgment.     State v. Robbins (1985), 218 Mont. 107,
113, 708 P.2d 227, 231.     Moreover, "any alleged error by defense
counsel must be shown to prejudice the defendant before reversal
will be warranted."    State v. Hurlbert (1988), 232 Mont. 115, 120,
756 P.2d 1110, 1113.     With these guidelines in mind, we examine
Clelandls allegations.

     First, Cleland claims that his appointed attorney failed to
challenge, on constitutional grounds, sufficiency of the evidence
in regard to the charge of intimidation.      As addressed above, we
find no merit to Cleland's constitutional claim.      His appointed
lawyer's failure to bring it to the attention of the trial court
did not prejudice Cleland nor deprive him of a fair trial.
     Secondly, Cleland alleges that his appointed counsel failed
to file a pre-trial motion to suppress the evidence obtained from
the apartments.       Cleland correctly asserts that a motion to
suppress evidence I1shall be made before the trial unless for good
cause shown the court shall otherwise direct."      Section 46-13-301,
MCA.    While Clelandts appointed counsel did not file a written
motion, he raised the issue orally prior to trial, and the court
gave permission to bring a motion at trial when the State moved to
offer the items seized during the search into evidence. During the
trial, Clelandlsappointed counsel objected to the admission of the
seized items into evidence on the ground that the person who
consented to the searches had no authority to grant permission.
The court overruled the objection after hearing the officer's
testimony that he had ascertained the consenting person's occupancy
of the apartment before he obtained written consent.
       While we agree that Clelandls appointed attorney should have
filed a pre-trial motion to suppress the evidence within the time
limits required by   §   46-13-301, MCA, we do not find that the result
of the trial would have been changed.      Cleland asserts that if the

issue had been properly raised before trial, it is Mconceivablell
that the District Court would have suppressed the evidence, and
"Cleland could have legitimately argued that he had found the
saxophone," rather than have stolen it.       Thus, Cleland could have
raised a reasonable doubt of whether he was guilty of theft.
       Whether a party other than the defendant may consent to a
warrantless search has been addressed previously          in State v.
Sorenson (1979), 180 Mont. 269, 590 P.2d 136.      In holding that the
mother of the defendant, who was caring for houseplants and animals
of a vacationing neighbor, had no authority to allow a warrantless
search of the neighbor's residence, we relied upon United States
v. Matlock (1973), 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242.     In
Matlock, the United States Supreme Court recognized the rule that
the prosecution "may show that permission to search was obtained
from a third party who possessed common authority over    . . .   the
premises or effects sought to be inspected.   Matlock, 415 U.S. at
171, 94 S.Ct. at 993, 39 L.Ed.2d at 250. The Supreme Court further
noted that common authority is not premised on property law:
     [Authority to consent] rests rather on mutual use of the
     property by persons generally having joint access or
     control for most purposes, so that it is reasonable to
     recognize that any of the co-inhabitants has the right
     to permit the inspection in his own right and that the
     others have assumed the risk that one of their number
     might permit the common area to be searched.
Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at 993, 39 L.Ed.2d at 250.
The Supreme Court has recently extended the Matlock holding by
ruling that a warrantless search is valid when based upon the
consent of a third party whom the police, at the time of entry,
reasonably, though erroneously, believed to have authority to
consent.   Illinois v. Rodriguez (1990),      U. S.   I   110 S.Ct.


     The likelihood is small that the District Court would have

suppressed the evidence obtained in the searches if a pre-trial
suppression hearing had been held.    Cleland's suppositions that
obtaining a pre-trial suppression hearing would change the outcome
of the trial are groundless.
     Finally, Cleland claims that a letter his appointed counsel
asked him to sign was an effort to force him to accept a plea
bargain and to exonerate him from liability for his representation
of   Cleland,     in    violation     of    Rule    1.8(h)    of   the   Rules   of
Professional Conduct, which provides in part:
     A lawyer shall not make an agreement prospectively
     limiting the lawyer's liability to a client for
     malpractice unless permitted by law and the client is
     independently represented inmaking the agreement . . . .
Cleland further contends that his refusal to sign the letter
prompted his counsel to provide an inadequate defense.                   The State
responds that the letter is not part of the record and should not
be considered on appeal.          "Allegations of ineffective assistance
of counsel must be grounded on facts which appear in or are easily
deduced   from the record and which go beyond mere conclusory
allegations.I1 State v. Tome (1987), 228 Mont. 398, 403, 742 P.2d
479, 482.       Cleland claims that matters relating to the Rules of
Professional Conduct come within the scope of the Supreme Court's
original jurisdiction ''since it pertains to the conduct of an
attorney and this Court always governs the conduct of attorneys
within the State of Montana."
     While the Supreme Court has exclusive authority over the

admission of attorneys to the bar and regulation of attorneys
within Montana, Kradolfer v. Smith (Mont. 1990), - P.2d                     ,    47
St-Rep. 1861, 1863; Harlen v. City of Helena (1984), 208 Mont. 45,
49-50, 676 P.2d         191, 193, this action is not a disciplinary
proceeding in which violation of the Rules of Professional Conduct
is at issue.      Clelandls allegation that his refusal to sign the
letter    led    to    neglect   by   his       appointed    counsel   is   without
foundation in the record.

                                           13
     Viewed in their entirety, Clelandlsallegations of inadequate
representation by his appointed counsel do not reach constitutional
magnitude.   Cleland s appointed counsel had not "made errors so
serious   that   counsel   was   not   functioning   as   the   lcounsell
guaranteed by the Sixth Amendment."      We hold that Cleland was not
deprived of a fair trial due to ineffective assistance of counsel.
     Affirmed.
                                             /-




We concur:
