State v. McElveen , 168 Mont. 500 ( 1975 )

MR. JUSTICES CASTLES and JOHN C. HARRISON,

(dissenting) :

We dissent.

Although we do not disagree with any of the law stated in the majority opinion, we disagree on the facts of the representation.

The defendant, here, is a “stir-wise” individual with ten pages of “rap sheet” showing numerous arrests and convictions in many states of the nation. By his own claim he has attended law schools and studied law and is a self-styled cell block lawyer. His guilt in the instant case is clear beyond any possible doubt. The background of this case indicates to us that he had planned an appeal based upon “incompetence”' of counsel even before his trial. The affidavit of defense-counsel shows that the defendant never told a consistent story to' his own counsel, gave him no facts, ignored counsel’s advice,, gave him handwritten directions on how to handle the trial,, and presented an impossible defense situation. Counsel should be commended for trying to defend him as well as he could.. The handwritten directions mentioned are a classic “Dick Tracy” comic strip diatribe.

Paced with an impossible defense posture, counsel should not be criticized nor should the defendant have a new trial.