*1 280 MONTANA,
The STATE OF v. DUN Respondent, Plaintiff McKENZIE, CAN PEDER Appellant. Defendant Jr., No. 13011. 13, Submitted March 1978. Decided 1978. June
Dissenting Opinion July 1978. Rehearing July Denied 1978. 1204. P.2d
285 Bank, Cut for defendant Barney Reagan (argued), appellant. McCarter, Mike Gen. Helena Michael Greely, Atty. (argued), Helena, Anderson, Asst. Gen. L. At- Atty. (argued), Douglas County Conrad, for ty. (argued), plaintiff respondent.
MR. CHIEF HASWELL delivered the opinion JUSTICE Court. McKenzie,
Defendant Duncan
Jr.,
Peder
was convicted of the
crimes of deliberate homicide and aggravated
kidnapping
jury
verdict in the District Court of Cascade
and thereafter was
County
sentenced to death. The conviction and sentence were affirmed on
McKenzie,
appeal
(1976),
this Court.
278,
State v.
171 Mont.
Thereafter,
certiorari,
the United States
Court
Supreme
granted
vacated this Court’s
and remanded the
judgment
cause to us for
York,
further
(1977),
consideration in
of Patterson v. New
light
2319,
432 U.S.
97 St.Ct.
The victim in this case was Lana a 23 old Harding, rural year school teacher in Pondera Montana. On County, morn- Tuesday 22, 1974, ing, January she failed to at school. At appear lived, Pioneer School where teacherage she the bed was found in a dishevelled condition. The sheriff of Pondera County called school, and officers were dispatched there mid- arriving morning. (1)
Investigation revealed: A red tennis shoe day belonging school; (2) Lana outside the Harding just trail from the drag road; (3) ato blood near the end teacherage trail nearby drag (later factor); (4) identified Lana’s and Rh a wristwatch type to Lana in the same area as the blood. Lana belonging Harding Conrad, Montana, was last seen in some miles from the at about 5:00 teacherage, Monday, January p.m. had moved into the and was recently community
Defendant. & for the K K Wholesale Co. located working Seed approximately A three from Pioneer School or so before teacherage. day .miles 21, he made a 1948 black buy Dodge January arrangements to most inhabitants of the area because it had recognizable pickup, time. to one local owner for On belonged long period January after defendant had worked on the work. He was seen pickup & at 6:45 K K Wholesale Seed Co. leaving approximately p.m., (not toward his of residence far from the heading place teacherage) *6 in the black The was seen about 7:00 about a pickup. pickup p.m. from the mile teacherage. later, an hour around 8:00 defendant p.m.,
Approximately residence, across knocked on the door of the Pearson farm located assistance in his the road from the He asked for teacherage. starting in the road It was later determined the was pickup parked pickup. and at a where the trail ended and where blood point drag Pearson residence de- watch were found the At the following day. his wife to asked directions to his own residence and called fendant it pickup, got he was home. Don Pearson coming pulled say started, not drive on toward his place and noted defendant did thereafter, driven was seen being residence. Shortly pickup was found the following toward the drill site where Lana’s body day. shirt,
Her was found clothed in a sweater and bra. It only body was of a drill. had been over the She draped tongue grain severely who ex- beaten about the head and The forensic body. pathologist been delivered to the amined the testified the death blow had body neck; head laid A was tied around her side. open right rope however, had there was evidence she had been strangled; pressure A wire was been released so she did not die of coil of strangulation. hair, in her later shown to have come from a roll of wire entangled in the found back of defendant’s pickup. and the investigation the search for
During body homicide, (1) were found: A of gloves, three additional items pair work, far at were found in a field not from worn defendant them; was blood on where the discovered with human body (2)overshoes on them were Lana’s blood and brain tissue type with from the found about of mile quarter away, impressions home; soles matched the heels of boots later taken from defendant’s (3) overshoes (cid:127)and Lana’s was found near the where the purse place were recovered.
As a result of the the sheriff and his investigation by deputies, afternoon, filed a com- county attorney, Tuesday January plaint charging defendant with assault before the justice The obtained a warrant for the arrest peace. county also attorney and a of defendant search warrant.
Defendant was thereafter arrested at his home. The black Dodge was seized and was in the Human blood found pickup impounded. bed of the and on the the back end of the pickup springs; pickup had been with black recently sprayed paint; spray paint later identified FBI as identical to brand named experts paint Conrad, “Weekend” which was not available in the Pondera Coun- area. A-can of the black ty, was found in the cab of the spray paint and another was later found at defendant’s pickup, home. (1) items were found in the back of the A following pickup: wire,
coil of later identified as been the source of the wire having hair; (2) found in the victim’s an exhaust manifold that had been black; (3) human painted blood of the same and Rh factor type *7 as Lana’s and and brain cortical tissue were found on the manifold. Pfaff, manifold, Dr. who examined the victim’s and the body John testified that the manifold could have inflicted the fatal blow. located,
At the drill site where the of brass from body piece a water was found. The owner of the pump prior Dodge pickup testified this of brass was in the piece back of when pickup defendant took on 19. possession January pickup
Several co-workers at the K & K at Wholesale Seed Co. testified trial that defendant had said on 21 that he broke in January every new vehicle in sexual ac- intercourse in each engaging newly quired vehicle. Several before defendant had remarked that days teachers; he had had intercourse with school country they naive, them, were he could teach and were they get. easy from
Defendant of conviction and appealed judgment McKenzie, sentence We affirmed. State v. imposed. supra. certiorari, Court, United States vacated this Supreme Court’s us remanded cause to for further consideration judgment York, in the v. New light Patterson supra. case,
We have the entire in reconsidered of Pat- only light terson, but also on all issues raised in the to this original appeal This this Court. constitutes Court’s entire opinion judgment case remand. following
In the interest of an of the specifications orderly presentation defendant, error raised we them insofar reorganize present there is some possible chronological sequence. Although the issue on fall into four overlap, generally categories: appeal (l)Those (2)those relating pretrial involving proceedings; itself; (3) trial but issues involving post-trial proceedings, including sentence; to, (4) not limited of the death issues for imposition reconsideration as remanded from the United States Supreme Court.
Defendant’s of error on are: specifications appeal
1. The issuance and of the arrest and search war- execution cause, rants without all claims of error probable flowing including therefrom.
2. Errors to the District Court’s refusal relating permit defendant to his and enforce change plea plea bargain. 3. Denial of defendant’s for substitution of the trial motions judge.
4. Informations of amended Permitting filing against and matters thereto. defendant relating trial 5. Denial of to defendant. speedy and the 6. Denial of defendant’s motions for order protective thereto. of Montana statutes constitutionality relating on legal 7. defendant the to voir dire Denying right jury to defendant’s mental state. concepts relating additional witnesses on the State to endorse Permitting 8. trial. the amended Information on the first day
289 9.Failure of the State to furnish defendant with timely statements of its witnesses.
10. in exhibits evidence numerous State’s admitting Improperly and admission in certain exhibits of evidence denying proposed defendant’s.
11. Improperly instructing jury.
12. verdict forms. jury Imporper
13. audience of the State’s Permitting recording closing argu- ment to the jury.
14. Unde interference and attitude the trial court partisan an preventing orderly of the case. proper presentation 15. Insufficiency evidence to the verdict. support 16. Denial of defendant’s motion for new trial. conclusions,
17. Errors court’s sentence and “findings, order” in the resulting the death sentence. imposition Court,
18. On remand from the United States the issue Supreme whether trial court’s instructions shifted the improperly mind, burden of of defendant’s state of an essential proof element of the crimes to defendant in violation of due charged, process under the federal and state constitutions. above,
In connection with the first issue defendant contends: The arrest and search warrants were not issued cause upon probable violation of United States and Montana constitutional re the facts cause quirements; were not made supporting probable under oath or affirmation and reduced to in violation of writing Montana constitutional requirements; search warrant was either issued as or converted into search war prohibited general rant; 95-1806(f), 1947, section R.C.M. is unconstitutional under the Constitutions; United States and Montana reason thereof State’s 18, 20, 21, 22, 26, 27, 31, 32, 33, 34, 35, exhibits 39 through and sublettered exhibits of these through bearing any numbers are inadmissible as the of an unlawful search products seizure; and defendant’s motions to suppress objections these exhibits should have been granted.
We
with defendant’s contention there was no
disagree
probable
cause for the arrest or search warrant. This
in
Court
State ex rel.
Wilson, (1973),
256,
15,
Garris v.
162 Mont.
511 P.2d
considered
federal case law and the
rule in this
long
on
standing
jurisdiction
cause
probable
for arrest and search warrants noting:
“ ‘We reach this decision
of the
by application
stand-
following
’”
ards:
only
criminal conduct need be
probability
shown.
of
(1971),
Far more was shown here. See: State v.
157
Troglia,
22,
143;
States, (1969),
Mont.
482 P.2d
v. United
393 U.S.
Spinelli
410,
584,
89 S.Ct.
Defendant
the search warrants must fall
the
on
argues
basis of failure
the
the
af
on
to swear or
part
county attorney
firm and reduce the
to
He relies on State ex rel.
testimony writing.
193;
Court, (1975),
v.
Townsend District
168 Mont.
543 P.2d
(1970),
and Petition
155 Mont.
Article Section Montana provides: “* * * No warrant to search or seize any place, any person * * * cause, shall thing issue without oath probable supported by or affirmation reduced to writing.” Here,
In Townsend was reduced to there is an nothing writing. affidavit and made of both signed by county attorney part date, warrants. At a later defendant of the justice argues peace failed to follow the rituals of the Nelson swearing. County Attorney later he asked testified of the “if he was sworn.” justice peace
Defendant made the affidavit on argues county attorney only Hoover, a facts obtained from sheriff of Pondera Jerry deputy been at the scene of the crime as who had of the in- County, part team. This is not true of what took vestigating picture place before of the Peace Wolfe at the time the county attorney Justice the affidavit obtained warrants. gave 30, 1974, On on the defendant’s motion to September hearing was held before Robert Nelson. were Judge suppress Testifying J. Hammermeister, Hoover, Sheriff his Jerry deputy Justice Peace Robert Wolfe and David H. Nelson. County Attorney directed arguments defendant’s counsel were to the lack of prob- able cause for the issuance the warrants.
A shows of the Peace Wolfe summary testimony Justice testified he swears all he customarily did not witnesses-though recall he county attorney, considered him sworn. swearing Hoover testified he came town Deputy into about 4:30 p.m. 22, 1974, with
January directions to to the of- go county attorney’s fice; that he county affidavit and he then helped prepare went before of the Peace Wolfe and gave sworn testimony Justice of the issuance of the support warrants. County Attorney Nelson testified he had at the been scene with the sheriff and his deputies his during just afternoon prior town coming get warrants issued. theAt he said in answer to a hearing, question what he had of the facts: knowledge *10 Well,
“A. without at the affidavit looking now—I think the first determined, or two paragraph my is statement as to what I that she was have missing may been the victim of foul but of play what time, nature we didn’t at the know she particular and that resided at the teacherage.” addition,
In the county examined attorney Hoover before Deputy justice of the facts he learned peace during investiga- Here, was, effect, tion. unlike there Gray, sworn testimony by affidavit, county sheriff in attorney deputy addition to the and the combination thereof established probable cause. The fact that defendant had been at the roadside parked near the school the Pearsons, night before had been established who assisted by defendant the truck getting moved. It was there the victim’s watch was found in of pool blood officers investigating State, before to town to going get the warrants. See: v. Lindley (1956), Okl.Cr., 294 P.2d 851.
This, in our is a sufficient cause opinion, showing probable issue the warrants. next
Defendant attacks the specificity search war rant, issued, that under the warrant search alleging blanket seizure resulted. Examination of the warrant that indicates both
292
an
were to be
error on
Though
the house and the vehicle
searched.
1948)
(1950 instead of
ap
of the black
vintage
Dodge pickup
Wren,
v.
Flournoy
that is of little
State ex rel.
significance.
peared,
356,
(1972),
Defendant’s argument other contraband articles” covered language “any used comes within the rule of State v. without merit. The language (1970), we held Mont. 467 P.2d where that Quigg, described in the search warrant items other than those specifically is demonstrated be seized as as a reasonable relationship may long and seizure of the between the search authorized in the warrant described therein. items not specifically 95-1806(f), of section the constitutionality Nest we consider 1947, which states: R.C.M. and seizure were the search
“The burden proving be on the defendant.” unlawful shall *11 subsection is un contention this find merit in defendant’s We no his cites no authority posi We note defendant constitutional. constitu fails to overcome presumption and therefore tion 132, Keleher, (1924), 2 55 App.D.C. v. United States tionality. defendant, 934, the facts is not applicable by relied upon F.2d 95-1806(f), R.C.M. section that Montana’s statute here. We note 114-12(b), 38, 1947, Ill.Code of after Chapter § patterned Procedure, states in part: which Criminal
293 “* * * The shall receive evidence on issue of fact Judge any to determine the motion and the burden of that necessary proving * * the search and seizure were unlawful be on the defendant Here, court, such was held the trial and defendant hearing by Normant, (1975), failed in his effort. v. 25 People Ill.App.3d 553; Tritz, (1974), N.E.2d State v. 164 Mont. 323 522 P.2d 603.
Defendant next reversible error out of an specified arising alleg- State, ed an breach thereof a refusal “plea bargain”, alleged by thereof, the District by Court to enforce the terms specifically a refusal the District Court to the defendant to withdraw permit his and substitute a prior plea with the plea guilty conformity alleged plea bargain.
In substance the defendant contends that a valid and binding 22, 1974, was made agreement on December between the prosecu- counsel, tor and defense the trial subject approval by judge, defendant would to deliberate homicide and plead guilty ag- gravated assault and would receive sentences of 50 and 20 years to be served years Defendant respectively claims that concurrently. on the counsel following met with the trial day who with judge, reluctance, some to all agreed thereof that he felt aspects he (except crimes) could only one sentence for give year both and set December 30 as the date for change plea entry judgment result, in accordance with the As a agreement. to defend- according ant, defense counsel what agreed foresaw explain problems they in the of the prosecution State’s case and what the defense position trial, would have been had the case all to counteract an- gone ticipated reaction the sheriff and the public victim. family
On December advised defense counsel prosecutor they would not their perform part plea bargain agreement, to defense counsel. according On December 30 the District Court denied defendant’s motion to withdraw his and refused to en- plea force the alleged plea bargaining agreement. State, hand, on the other denies that any plea bargaining
agreement entered into on December or at other time. *12 294
The State contends the initiation and for impetus plea bargain- defendant; discussions came from the that ing throughout discussions the State took the that no consistently position plea could be entered into bargain without the consent of the victim’s sheriff; and the and family that reason the only State agreed meet with the trial and judge defense counsel on December 23 was that the was unable prosecution to travel some 400 miles to see the victim’s until December 26. family Because no consent could be obtained from the victim’s no further family, plea bargaining discussions were held. The State asserts any information gratuitous that defense counsel believed had they the State was imparted either known to the or of no already State to the significance prose- cution’s case.
The issue turns on the existence of the alleged plea bargaining The trial agreement. version judge State’s situa- accepted n tion and refused to enforce the contended for alleged agreement by defendants. We likewise version. We hold that accept State’s where, here, the existence of was any plea bargaining agreement made, and there is disputed evidence that none was substantial there is to enforce and the trial court’s in this nothing actions were correct. regard it,
As we understand there is neither contention nor of bad proof faith the State in its discussions with defense counsel on a plea or in its effort to secure the of the bargain sheriff or the approval victim’s Under these circumstances statements of parents. any defense counsel weaknesses in the case or concerning State’s defense in connection therewith were and positions gratuitous event, In a trial is not a contest in premature. which sporting the verdict turns on nondisclosure of such matters. Discovery pro- cedures are to remove this element and had designed operated been utilized at the time in extensively exhaustively question. York, (1971), 257, 495, v. 92
Santobello New 404 U.S. S.Ct. L.Ed.2d does not aid the defendant here as that case is clearly on the facts and on the law. distinguishable Defendant’s next concerns the denial of error his specification at- motions for substitution trial He that he judge. argues the trial cause motion and hear- tempted disqualify judge on the basis that trial ing September judge member the Criminal Law Revision Commission drafted Montana’s it present Criminal Code submitted to the *13 for enactment. He that he dis- legislature to argues again attempted 30, first, 1974, the trial for cause on December qualify judge because the trial had information the judge acquired during plea manner, process for him to sit in an bargaining making impartial second, he because force to his own attempting to “Preliminary Instructions the over both Jury” prosecution defense which indicated he had an objections assumed adversary stance and taken over of the case. prosecution
We hold that the trial on the judge’s Criminal membership Law Revision Commission did se not constitute dis per grounds for qualification for cause. Canon 4 of the Bar American Association Canons of Ethics “A permits this: specifically Judge may Judicial law, in activities engage the the the improve system, and legal administration of The of justice.” draft the of the revision Criminal Code the Commission was the its presented legislature for consideration, or approval, rejection modification.
doNor we find any ground disqualification of the trial for cause in his judge acquisition of information the during plea his process, Instructions the bargaining drafting “Preliminary or facts or Jury”, any he had assumed an proof adversary posi tion at trial in case. over The rule of taking prosecution (1966), 563, United States v. 384 Grinnell 86 Corp., U.S. S.Ct. 1698, 778, 15 L.Ed.2d to establish bias and inapplicable pre Here, whatever trial judice. obtained was dur knowledge judge the course of ing case and not from legal proceedings outside source. As as the trial Instruc long judge’s “Preliminary law, tions to are correct statement of it Jury” is im material whether are drafted over the they judge given objections one or counsel. is the both Such case here adversary for reasons hereafter discussed. we find record Finally, does
296 assumed an adver- the trial judge defendant’s contention support the case. and took over prosecution role sary rulings permitting as error the District Court’s Defendant argues him. We need only against to file amended Informations the State the third amended Information with the filing concern ourselves tried. defendant was ultimately on which as it was this Information to our opinion conforms third amended Information The (1974), Court, 165 McKenzie v. District in State ex rel. directions affidavit, Thus, error in the 1211. there is no 525 P.2d Mont. Information, fil- its rulings permitting or the District Court’s ing. trial, em was denied speedy he
Defendant complains
and trial. This delay
between arrest
of 350 days
a lapse
phasizing
to a
defendant’s right
a violation of
se
cannot be considered per
However,
ar
defendant’s
of time between
the length
trial.
speedy
the reason for
shift the burden
explaining
and trial does
rest
defendant upon
absence of prejudice
and showing
delay
Crist, (1974),
P.2d
Mont.
v.
Fitzpatrict
prosecution.
1322;
Keller, (1976),
Defendant or disease provisions and the mental defect defect or disease mental Procedure, 509 sections 95-501 through in the Code of Criminal R.C.M.1947, 95-1803(d), To are unconstitutional. section sections, defendant these sought constituionality challenge were rights from waiver of any to himself protect order protective The court denied these sections. required to the notice he give and not these to be constitutional and held sections the relief sought Constitutions. On ap United States or Montana violative of the these in not holding pro maintains the court erred defendant peal, visions unconstitutional. answered were previously
Defendant’s constitutional arguments Court, (1969), 154 rel. v. this Court in State ex Sikora District P.2d Defendant’s attack on these statutes loses Mont. 897. States force when it is that the United recognized .much of its after careful con- Supreme promulgated, Congress, Court 12.2, sideration, Pro- Rule Federal Rules Criminal approved Condition, cedure, which is Notice of Defense Based Mental upon to the attacked here. It should em- identical nearly procedure notice, is statute to sur- prevent purpose phasized continuance of eliminate the for a trial necessity prise, amount to a when the is raised. The fact of notice does not defense in a trial on and it could not be used in evidence any way plea, for advance notice of the the merits. The provisions merely provide may .intent to on such defense so that State be prepared rely this meet defense. claims because he was not prejudice
Defendant
allowed
dire
on the
of mental disease or defect. This
jury
subject
voir
has
said that where notice of defense of mental
Court
previously
a refusal to
defendant to
disease or defect
allow
voir dire
given,
Olson,
error.
v.
on this defense constitutes
State
jury
prejudicial
Here,
(1971),
Defendant addition of names alleges witnesses the amended on the of trial error. Information day *15 The section of the of Procedure is section pertinent Code Criminal R.C.M.1947, 1803(a)(l), 95- which reads: “(a) of List Witnesses:
“(1) For the of notice and to the purpose only prevent surprise, shall furnish to the defendant and file prosecution with the clerk of the at the court time of a list the arraignment, of witnesses intended to be called prosecution. prosecution time may, any after add to the list the names arraignment, additional any witnesses, cause. upon good This list shall include the showing names and addresses of the witnesses.”
The Revised Commission Comment this section out: points 95-1503(d) “Section the state to endorse Chapter requires the names of the witnesses the state on the indictment or infor- mation under this section the defendant to a list at permits get any time, after probably trial. arraignment times the Many before state does know before it files the indictment or information all the witnesses it call. may
“Further, this allows the addition of names provision not only trial, to but after trial prior has commenced. theAs trial pro- is gresses, showing which to necessary establish cause’ ‘good time, should be more At stringent. allow a con- judge may (section 95-1708) tinuance if it should necessary the in- appear terest of justice. (1972), 801,
In v. State 160 Mont. 500 P.2d Campbell, whose name was person added was the victim of the assault and the Court there found no serious claim out that surprise pointed while defendant objected, he made no effort ask for continu Rozzell, (1971), ance. In State v. 157 Mont. 486 P.2d District Court judge witnesses recognized possibility added would the defendant and offered surprise to continue the trial until defendant had had a chance to interview all new witnesses, but this was refused.
These cases indicate that the clearly proper procedure where is claimed from the surprise addition new witnesses ask for a so continuance that defendant In the may prepare. present case, defendant objected addition of the witnesses based on defense, but never surprise inability his prepare requested *16 request in granting District Court continuance. Statens witnesses cautioned: the new addition of “ ** * motion, before be understood it must this and in granting must be the defendant to testify, is allowed these witnesses of any them, examine talk with his counsel to have an given opportunity * * them addi- defendant. The to added were prejudicial The witnesses defendant, as he did not surprise names of the FBI agents tion of the received several from reports of their testimony knew the content were ac- witnesses who of the-additional earlier. The rest months These of Chevrolet. Wright called to were testify employees tually the chain of possession of part testimony persons’ of the witnesses from the truck. The remainder evidence seized added, were but who were not called to testify, names were whose be, could, of testimony if need corroborate named because they foundation, witnesses, or about testify further lay listed already the dates in question. and in the area on the weather temperature with pro- was careful to defendant In its order the court provide defendant was able to and to ensure that tection against surprise Defendant was in no way prejudiced for the testimony. prepare the addition of the these witnesses. Before allowing the addition of names, to examined the county attorney new the court witness and to each new witness the reason for the addition of determine in the testimony presence find the nature of each of the witness’ out counsel, of the basic was apprised so that defendant of defendant’s testimony. nature of the furnish failed to timely contends the State
Defendant is reversi that this of its witnesses. He argues him with statements ble error. R.C.M.1947, 95-1804(a), 95-1801(d)(2) provide
Sections R.C.M.1947, 95-1804(a). provides: tools. basic Section discovery to case made prior criminal any On motion of defendant a with furnish the defendant order the state to trial the court shall and a list of admission written confession or copy any confes- an oral has made to its If the defendant making. witnesses sion admission a list to its fur- witnesses shall be making nished.”
This section its entitles defendant as by mandatory language motion, to statements he made. no right It upon requires .matter cause. showing good 1), (d)(
Section 95-1801 provides: cause, motion “Upon of either party showing upon good the court issue a the trial may subpoena prior directing per- books, statements, son other than the defendant produce papers the trial or objects time when are to prior prior they *17 be offered in and evidence the court their may, upon production, books, statements, the or permit objects or thereof papers portions be to or inspected, the and their copied, by parties photographed attorneys.”
The Revised Commission Comment this section discussing points out: (d)
“The allowed under discovery subsection is a two-part (l)either mechanism for information. gathering Under paragraph defendant, a third than party may require other the person, (section 93-1501-3), the through use of a to cer- subpoena produce tain articles. The restriction is that cause must be shown. only good This allows what is sometimes referred to as a ‘fishing where third are expedition’ concerned.” only parties —but 95-1801(d)(2), Section provides: defendant, motion
“Upon within reasonable time before trial, cause, the court at and may, upon a time showing good court, the order place designated the to by prosecution produce to trial for or prior inspection, the by photographing copying defendant, books, statements, or designated papers, obtain- objects material, from ed defendant or others the which are by prosecution relevant and to the necessary of the defense case.” preparation
The Revised Commission Comment this discussing provision states: or
“The discovery second defendant paragraph permits by that object with the additional requirement prosecution ‘material, necessary prepara- be relevant desired must of the case.” tion access to necessary get
This showing comment indicates the that re- than is greater in the hands of prosecutor material of third parties. to material in hands quired get this and with the that most recognition Against background, criminal cases in Montana conducted on a more infor- discovery mal basis without resort the motion hearing procedures above, finds the of error based on a outlined this Court allegation one week in the demand delay of with approximately complying defendant after trial merit. begun, made had to without had two demands upon Defendant claims he made prior These were in form for this material. demands county attorney made a number to the Defendant county of letters attorney. “* * * for copies and then made a requests general request specific will you rely items which any documentary physical * * expressed fact *.” The second letter defense proof was re- provide counsel’s that State not going opinion dated, was 1974. On August information. This letter quested 13, 1975, trial defendant filed a demand and after January began, all statements taken prosecution motion requesting im- demanding witnesses be turned over to defendant from all in the Any furnishing mediate compliance. delay prosecution’s with the material in his earlier letters requested defendant *18 and motion this waived defendant’s failure to file demand by had material until after trial begun. “within a motion was not made the demand and though
Even trial”, 95-1801 under section required time before as reasonable (d)(2), the granted saying: the court motion stand, foundation than your takes the other
“Before witness now, witnesses, with furnish proceeding that are you [the State] are as have copies you with such them counsel] [defense such, take the before they and witness] work product [the your with each stand, to talk an to be given opportunity he is going the other witness, just been endorsed those that have particularly * * added.) *.’’(Bracketed material day sort, The time it took to for the State and the re- gather, copy material the quested during the State’s case-in-chief presentation was reasonable. The court prejudice by allowing de- prevented any fendant to interview the witnesses their the stand. prior taking We note the State the complied with made de- specific requests by letters, fendant in the and the August received from the FBI reports and the were autopsy forwarded defendant soon after report they were received and the prior to August requests.
Defendant objects certain which were introduced photographs into evidence as and being gruesome inflammatory otherwise prejudicial.
The basic rule on in evidence Montana as stated in photographic (1965), 251, 261, 978, 984, State v. Campbell, 146 Mont. 405 P.2d is:
“* * *
are ádmissible for the
Photographs
purpose
explaining
the evidence and
the
applying
court and
in un
assisting
jury
Co.,
the case. Fulton v.
derstanding
Chotean
Farmers’
County
Mont.
Defendant
objects
of the chain
posses
to be
to the completion
allowed
given prior
was based. This opin
evidence
which this opinion
sion of the
upon
FBI
who
evidence was given by
agents
ion was based. This opinion
their
allowed them to give
were witnesses for the State. The judge
examined,
not as yet
had
which had
to the evidence
opinion
they
evidence,
there was a
of the chain
been admitted in
because
portion
the discre
established. It is within
which had not been
possession
to be
conditioned on
tion of the court to allow opinion
given,
the evidence which forms
and admission of
subsequent production
(1960), 137
v.
Pac. Ry.,
the basis of the
Risken Northern
opinion.
831;
Rolandson, (1967), 150 Mont.
350 P.2d
Graham v.
Mont.
of the evidence was
Next defendant complains evidence. Our examination refused admission into exhibits were on the basis of these were refused reveals that exhibits the record that the determination The rule is of a foundation. lack proper for the introduction of has been laid foundation whether proper court, and its determina rests with the trial into evidence exhibits is a clear abuse unless there overturned on appeal tion will not be Olsen, (1968), 926. In 445 P.2d 152 Mont. v. of discretion. State in not case, abused its discretion the trial court we cannot say this argu Defendant’s into evidence. defendant’s exhibits admitting merit. is without ment
Defendant contends the extensive instructions preliminary given *20 erroneous, the court that it was to were error them to give prior the and the introduction evidence that instructions remaining after the of evidence were given presentation wrong.
The instructions were the usual instructions preliminary addition, on the role of the In given included were number jury. of instructions which out the set elements of the various crimes of accused, which defendant was and set out definitions of statutory used. terms
Montana’s criminal is code written clear plain language which well serves as the basis for to the instructions There jury. was no error in the entire into incorporating Information instructions, for it preliminary too is basically statutory language defendant’s name and the victim’s merely inserting name in the and proper places enumerating used. The weapons is not but as as language inflammatory neutral detail- language ing involved here can be. Examination of the charges instruc- tions reasonable doubt and the defining burden of show proof statements of the law. proper
Defendant asserts that in the instruction language which defines the as that which degree proof necessary convinces being the mind “to a moral of the truth no certainty of the more charge, less” no falls into the of error found in type State v. Taylor, (1973), 163 P.2d Mont. 695. In Taylor, State’s burden was defined as which using such im phrase “only proof may” limits consideration some of the pliedly evidence and which Here, could be to limit the burden of interpreted proof. nature forth, be made is set subjective judgment jurors more no “no less” language merely emphasizes nature of the and in no diminishes it. judgment way Court finds no error to of defendant prejudice from the fact that extensive instructions were preliminary given the introduction evidence in the prior case. Defendant con 95-1911, R.C.M.1947, cedes section the court the gives power 95-1910, R.C.M.1947, the order of trial out in vary set section for good reasons. The case was built present on cir entirely counts, cumstantial evidence. Some of the were charged complex and difficult to understand. For the second example, homicide count felonies, was a homicide which felony as alternative sex had ual intercourse without consent and assault. aggravated The ag assault gravated factors, alternative had alternate aggravating serious bodily injury with a bodily injury and a weapon, listing of alternative or a weapons, It rope heavy object. was for good reason that the instructed the judge to the basic jury elements of all the offenses so the charged, could have some jury understanding circumstantial complex evidence presented. In less case complex which was not based only circumstantial evidence, such preliminary instructions might be necessary and there would be the required reasons good the usual varying trial, order of the but here it was to do acceptable so.
One of the instructions preliminary to which defendant ob jects is the one torture. defining The instructions states:
“Whoever assaults purposely another for the physically purpose of cruel inflicting suffering upon so person assaulted for the particular of purpose the assailant enabling to either:
“(a) extort anything from such person; “(b) or to will, such persuade person his or her against or “(c) to some other satisfy untoward of propensity the assailant * * *.” The term “untoward is defined in propensity” the same instruc- tions as menaing “any perverse, bad or wrong, corrupt inclination Defendant tendency.” maintains that this instruction incorrectly defined torture.
A number of California cases have adopted similar definition (1953), 876, torture. v. People 40 Daugherty, Cal.2d 256 P.2d 911, 917 states:
“Murder is perpetrated torture ‘when “the by assailant’s intent was to attack, cause cruel on suffering of the part object extortion, either for the purpose or to revenge, persuasion, satisfy 72, some other untoward v. 34 Cal.2d propensity.” People Tubby, 306 164, 177, 54; Bender,
77, 51, 27 Cal.2d v. People 207 P.2d 561, 224, 556, Martinez, 241 P.2d v. 38 Cal.2d P.2d 8.’ People 227.” is an ex- defendant by instruction proposed of the language case, People earlier California of an
act
from the
quotation
opinion
520,
21,
165 P.2d
Heslen, (1945),
27 Cal.2d
27. See:
163 P.2d
v.
to support
the evidence
sufficiency
That case dealt with
250.
conflict
is no real
and while there
murder
torture
finding
instructions,
is in
the court
the one given
the two
between
evidence, which
comment on
which does not
language
general
down,
out
the various purposes
and which sets
breaks the elements
statement
more understandable
a clearer and
in the alternative is
and certainly
one
given
proper
law. The instructions
(1976), 18
Wiley,
v.
instructions. People
of the two proposed
better
Defendant shifted was error effectively in the instructions tions to defendant. the issue of intent burden of proof *22 inferences, in used and presumptions three statutory In general, unlawful that an in The presumptions are dispute. the instructions intent, that a intends person with an unlawful act was done act, in In were included of his voluntary ordinary consequences (“Method Intercourse Sexual of Proof Applicable struction 33 to the Of Consent”) (“Method of Proof Applicable and 38 Without Assault”). 93-1301-7(2), (3), fense of Section Aggravated R.C.M.1947. The inference in a deliberate homicide of knowledge or from fact accused committed homicide in purpose excuse, absence circumstances of or justification mitigation ap 95-3004(2), in peared Instruction 33. Section R.C.M.1947.
As an of how these inferences and example presumptions were 33(1) (II) to the explained jury, Instruction is set out: “Method to the Applicable Deliberate of Proof Offense of Homicide
“The mental state act accompying voluntary required offense of deliberate homicide being either or knowingly purposely and not in addition thereto that the requiring act committed for particular the mental state purpose, proof be made may by use of either inferences or or presumptions, the use of both by in- ferences and presumptions.
“I. Mental State by Proof of Inference.
“If find you from the evidence reasonable doubt beyond defendant, 21, 1974, or about January in Pondera County, Montana, act, in the commission aof caused voluntary death of Lana Harding, are from you permitted that fact alone to deduce or reason that he did so or either if knowingly no cir- purposely, cumstances of excuse or mitigation, justification appear evidence.
“You will be instructed on mitigation, excuse and justification if such instructions are needed.
“In addition fact death caused being voluntarily by the accused, and are you may, instructed to also consider all the facts death, and circumstances connected with said that have been prov- ed the evidence in whether determining or not the defendant acted either knowingly purposely.
“II. Mental State Presumptions. Proof of “(1) defendant, you If find a reasonable beyond doubt that the 21, 1974, Montana, on about in Pondera January County, volun- committed an tarily act illegal on Lana such as Harding,
308 her, that an unlawful act presumes the law
assaulting injuring or intent; is, the law an that directs expressly done with unlawful was act acted with unlawful that defendant to reason from such you intent, unlawful or purpose. an it be con- which means may
“This is a rebuttable presumption, evidence, not but whether or other troverted and overcome overcome, is for the come into effect once it has presumption, to determine. jury
“(2) ordinary that intends The also person law presumes act. voluntary of his consequence
“Therefore, that the de- if find reasonable doubt beyond you 21, 1974, fendant, Mon- in Pondera January County, on or about tana, or Lana Har- injured assaulted unlawfully and voluntarily doubt that the and find a reasonable beyond if further ding, you of such an assault consequence death would result as the ordinary that, directs or the law and expressly you injury, presumes intended to cause said death reason therefrom that defendant an intent or pur- whether or not he had such of regardless actually pose. con- capable being
“This also is rebuttable presumption overcome, but it into effect it is for the once has come troverted it been rebutted.” or not has determine whether jury York, v. that Patterson New initially Defendant argues 684, Wilbur, (1975), 95 421 S.Ct. v. U.S. Mullaney supra, intent, 1881, 508, that as an 44 stand for the proposition L.Ed2d offense, established the use of never be may element We Court noted Patterson: Supreme disagree. presumptions. that prove every ingredient held a State must surely “Mullaney doubt, and not shift that it may of an a reasonable beyond offense the defendant by presuming ingredient the burden of proof * *” * 432 U.S. elements other upon proof offense. added.) 215, 97 S.Ct.2330. (Emphasis Thus, may an of the offense presumed element of the offense elements. Elements proof remaining merely by however, inferred, other from proof still be may presumed
309 facts, the facts if the between such facts and relationship proved with the due standards announced in presumed process comports States, (1973), v. 93 37 Barnes United U.S. S.Ct. See, (1978), 380. v. L.Ed2d State 175 Mont. McBenge, P.2d 260. The use of inferences presumptions recognized in a footnote Mullaney; majority opinion *24 *
“* *
in a criminal case the
bears both
Generally
prosecution
burden
burden. In some in-
production
persuasion
however,
stances,
it
v.
is aided
a
see Davis United
by presumption,
States,
469,
353,
(1895)
160 U.S.
16 S.Ct.
Our therefore twofold: Whether inquiry the inferences and in presumptions question satisfy due process standards an- Barnes-, (2) nounced and whether the cumulative effect of these
instrucitons shifted the ultimate burden of on the issue persuasion of intent to defendant.
The Court in Supreme Barnes considered be- relationship tween the fact and the proven inferred or presumed fact that is re- due quired concluded: process
310
“* * *
case, however, is at least
What has been established
as sufficient
submitted to
jury
this: that is a
inference
statutory
(that
reasonable-doubt standard
conviction satisfies the
support
is,
to find the inferred
the evidence is sufficient for a rational juror
doubt) well
more-likely-than-not
a reasonable
as the
beyond
fact
standard,
Barnes,
with
412
it
due process.”
then
accords
clearly
843,
intent, his a intends the ordinary consequences and that person act, have law since 1895. This been Montana voluntary part has the use of these previously approved presumptions Court (1975), 168 intent. v. Caryl, criminal cases on the issue of State 426, 389; McLeod, (1975), 414, v. 131 Mont. 543 P.2d State Mont. also, 478, 489, (1963), v. 143 Jones, P.2d 407. See State The conclusions drawn through Mont. P.2d 913. are fair and reasonable ways generally of these presumptions use intent, which, course, can never be directly. proved ascertain must that the “unlawful act” proven The instructions emphasized find juror been We believe rational would have voluntary. act was voluntary, doubt that unlawful reasonable beyond *25 intent, an intent to cause its or- with an unlawful and with done consequence. dinary ain deliberate knowledge
The inference of or purpose and accused committed a homicide the fact that the homicide from excuse, or mitiga justification that there are no circumstances 95-3004(2), This in R.C.M. 1947. statute is contained section tion the time the criminal code introduced in at same passed and to qualify In order knowledge purpose. the mental elements of or defendant acted purposely the inference that for instructed (1)A voluntary was still required prove: the State knowingly, victim; act; (3) (2) and cir absence of death causing excuse, or The instruction justification mitigation. cumstances of caused have been “voluntarily by the death must emphasized with “reasonable comports This inference clearly accused”. standard. doubt”
311 Defendant cumulative effect these argues presump tions and inferences shifts the burden of on the intent issue to proof defendant. It is well established instructions challenged jury v. must be viewed in the context of the entire charge. Cupp (1973), 141, 146, 396, 400, 94 38 U.S. S.Ct. Naughten, 368; (1976), Farnes, L.Ed.2d State v. 558 P.2d Mont. 472; Bosch, 566, 574, 242, (1952), State v. 125 Mont. 477. P.2d Defendant these and gave inferences argues presumptions jury fails, that defendant must lack of intent. He impression prove however, to consider that the following countervailing instructions were also to the given jury:
(1) That defendant denied every material allegation every count his therefore plea, every material must be allegation doubt; a proved beyond reasonable
(2) innocent, That defendant is presumed and his guilt doubt; must be proven reasonable beyond (3) That the jury may convict on possibilities, conjecture but surprise, only evidence establishing guilt beyond doubt; reasonable
(4) elements, The statutory definitions of the mental “purposely” “knowingly”;
(5) A statement of the elements of the offenses charged, in- elements; the mental cluding
(6) (in Instructions”) A re-emphasis “Additional of the men- offense, tal states required each and a of the re- re-emphasis act; quirements of voluntary
(7) that the Warnings presumptions noted never may be used to prove particular that are purpose elements of the offenses of deliberate homicide means of torture and aggravated kidnap- ping.
When read in their entirety, instructions can be inter- only to mean that the preted State had the burden of proving ele- every ment of the offense beyond reasonable doubt. The use of forth, and inferences presumptions set merely terms con- entirely *26 law, sistent with Montana how the could State meet this burden by of proof facts. objective
312 in instruct Oregon
We are aware of the recent decision
an
arising
the
of unlawful intent
from
the
on
jury
presumption
of the burden
constituted an unconstitutional shifting
unlawful act
the
to defendant. State
on the element of intent from state
proof
However,
Anderson, (1978),
we
677.
P.2d
v.
Or.App.
* *
“*
case,
one,
case. In that
unlike this
the
of that
reject
reasoning
instructions,
whole,
in-
as a
clear on the issues of
taken
were not
Here,
Anderson,
in-
In the context this de of intent to burden of the issue roneously proof shifted the fendant, an whether reversal would Such question required. we was that it could not have affected determination jury’s error the death of the victim. Evidence who caused defendant we detailed in The evidence overwhelming. intent perpetrator’s death, the defend about the cause of this beginning opinion attack, and facts and cir to the behavior on the days prior ant’s attack, acted all show that defendant cumstances following or “knowingly”. “purposely” Wetzler, that if testified for the defense
A Dr. Robert psychiatrist, Information, from he suffered did the acts charged defendant acted “pur- or defect that he could have such mental disease must be considered testimony This “knowingly”. or posely” defendant’s no into inquiry fact that Dr. Wetzler made light im- or the two days on the of the attack night or statements actions it, he that such factors admitted mediately although preceding when defendant’s mental capacity some bearing upon could have Gracia, Dr. M.F. was committed. Another psychiatrist, the offense Shubat, W. both expressed Dr. Edmund and a psychologist, or act have “purposely” that defendant did capacity opinion “knowingly”. evidence,
Furthermore, we con- all are into account taking acted “purpose- doubt that defendant vinced reasonable beyond therefore, error in if there even knowingly” ly”
313 (1967), California, harmless. v. burden of it was proof, Chapman 18, 824, 828, 24, 705. 87 17 L.Ed.2d 386 U.S. S.Ct. his were
Defendant on to claim error because instructions goes This must fail. Defendant’s instructions on not given. argument law, and disease defect misstate the and mental state mental an on the elements of the crimes add ele- charged the instructions that is not ment required. and find
We have examined the court’s instructions carefully The court’s instructions as a whole state correctly them proper. law.
The next
defendant raises is that the verdict
argument
to the
did not cover all
verdicts and
forms provided
jury
possible
amount to
verdicts.
they
special
Defendant
and verdict
which
submitted instructions
forms
covered the offenses of
deliberate homicide and unlawful
mitigated
clear,
(1968),
is
restraint. It
as stated in
Mont.
Gray,
State v.
145, 153,
447 P.2d
479:
“* * *
a
‘The submission of
lower offense is
when
justified only
the evidence on some basis would
that the defend-
finding
support
* * *”
ant is innocent of the
offense
of the lower.’
higher
guilty
279;
McDonald, (1915),
149 P.
51 Mont.
also: State v.
See
this case
(1977),
The verdicts jury general finding make or not on each count. was to the additional jury guilty that the for the of the death necessary imposition element finding circumstances, was those this additional Under present. penalty It fall into the vice of verdict. finding special factual does not used to a fact determination which could be require does not Thus, the verdict forms were per- undermine the verdict. general missible. error in
Defendant claims the court’s prejudicial per mitting audience record the tape closing argument State’s this He contends his to fair trial. His jury. prejudiced right was argument jury being that the influenced argument believe, recorded because the could under those jury circum stances, there worth something preserving. brief,
In his defendant admits that the court’s failure to prohibit violates statute. case recording argument no He cites no Ethics, law that is violated. He admits the Canons of Judicial Court, which.have been this do not deal adopted by specifically with this does Code question. He that the say Conduct Judicial *28 However, prohibits such that Code has been recording. not Thus, in adopted Montana. no law rule of was this Court violated tape recording argument. audience’s
As to defendant’s
argument
it
his
to a fair
prejudiced
right
trial, we find
in that
rule
no merit
claim. The
is that before a judg-
reversed,
ment in
will be
criminal case
must be shown.
prejudice
Totterdell, (1959),
State v.
135 Mont.
We note that artful cause” not rather phrase “good there must be reasons” for the of the usual order “good departure of the trial.
Defendant’s arose difficulty from the fact the FBI who agents case were to in this were scheduled to testify several other testify cases in other states and the judge require would them to re- trial, main for the duration weeks, of the three nearly unless there reason good them. The keep court requested defendant make an offer of proof show these why should persons not be released from their after subpoenas defendant opened his case-in- chief. Defendant argued that no reasonable offer of could be proof made until the completion of the State’s case-in-chief. This may well have been true prior enactment of the liberal discovery pro- cedures in the Code of Criminal case, Procedure. In the present however, defendant had examined the FBI reports-,he had examin- evidence; ed the and he had a list of physical the proposed exhibits that were to be into put evidence. If there was some reason to re- remain, the FBI quire defendant agents would know it at the time of trial. No of such need was made showing and the in a judge exercise proper of his discretion and for reasons good allowed the to leave agents after had testified as they defendant’s part case-in-chief, in the middle of the State’s case-in-chief.
Defendant further error alleges because his on men expert tal defect and disease was not allowed to be present during State’s presentation of its rebuttal on this experts matter. Earlier in trial, defendant sought from the court that ruling all witnesses be excluded from the courtroom when other witnesses were The court testifying. this granted motion except court said that the rule did exclusionary not extent to rebuttal witnesses. Defendant’s was a expert witness in his case-in-chief. After defend *29 rested, ant he sought from the court permission to have this expert in the courtroom present of the during State’s rebut testimony tal The court refused to experts. such grant permission. Defendant this was an abuse of alleges discretion which prejudiced defendant. We are unconvinced the court abused its discretion. Defendant’s was a expert witness in his case to whom the rule exclusionary ap The fact plied. that defendant wanted to use him as a rebuttal witness did not him from the except rule defendant exclusionary has asked the court to invoke. Nor do we see that defendant was prejudiced the court’s by action. The State’s rebuttal experts’ testimony concerned the had made on defendant’s report they men had been that the defense These were reports
tal disease or defect. 95-505(5), with, The section R.C.M.1947. as required by supplied defendant’s day finished at the end witnesses State’s to inform the There was time then the next day. rebuttal began not in the report information additional any defense expert rebuttal Under testimony. and to prepare made these by experts, was circumstances, prejudiced. those defendant evidence insufficient to the ver- justify Defendant argues him He that the evidence against specifically argues dicts rendered the verdicts that defendant committed support is insufficient deliberate homicide torture and that as result of her by aggra- vated Lana died. kidnapping, Harding (1973),
In 220, 226, State v. Fitzpatrick, Mont. 516 P.2d 605, 609, this Court set forth its position questions deteriming of the evidence: sufficiency over,
“As this Court has held times is the fact find- many jury in our ing body system its decision is controll- jurisprudence, is free ing. to consider all the evidence .jury and to presented pick choose which of the witnesses it wishes to believe. If suffi- introduced, cient was testimony well as exhibits to justify then its jury’s findings, conclusion will not be disturbed unless it is clear, there was a apparent misunderstanding or that by jury there was a made to the misrepresentation jury.” case,
In this the evidence to the did not mislead presented jury them, nor was of it ever to them. The evidence misrepresented was sufficient to justify Lana jury’s finding Harding killed means of torture and that she died as a result of her ag- gravated defendant. kidnapping
The rule is that if substantial evidence is found to support verdict, White, (1965), it will stand. State v. 146 Mont. 761; Stoddard, (1966), 405 P.2d State v. 147 Mont. 412 P.2d 827. is the Such case here.
Defendant in the error trial court’s denial of his motion alleges for a new trial. He contends he was entitled to a new trial due to in- of the evidence. He further that the cumulation sufficiency argues of errors committed his trial denied a fair him trial. *30 was sufficient to sustain
Since we have held that evidence conviction, we further hold the court did not err in de- defendant’s new the motion for trial. nying
We find no merit
in defendant’s argument
errors
cumulative error. Since we have held that no substantial
committed,
were
we do not believe the doctrine of cumulative er
“harmless er
ror
We are unconvinced that the
applies.
concepts
ror” and “cumulative error” are interrelated. “Harmless error”
errors,
refers to technical
which do not
reversal. State v.
require
(1968),
151 Mont.
As to the errors in the court’s sentence and findings, order, the errors referred to are clerical errors in essentially of that A mistaken citation of subsection letter body document. 94-5-105, section R.C.M. which was caused the amend section, ment which numbered the is an This document is example. in error with to the factual or basis of its respect legal findings. This Court finds no in the clerical prejudice errors.
Defendant was sentenced to death for his conviction of the of fenses of deliberate homicide and This aggravated kidnapping. 95-5-304, sentence was virtue of sections 94-5-105 and imposed by crimes, R.C.M. 1947. At the time of the these statutes read: “94-5-105. Sentence Of Deliberate Death For Homicide.
“(1) When a defendant is of the offense of convicted deliberate homicide the court shall a sentence of death in the follow- impose circumstances, unless there are circumstances: ing mitigating
“(a) The deliberate homicide was committed serving by person in the state sentence imprisonment prison; *31 “(b) of The defendant was convicted another previously homicide; or deliberate officer,
“(c) was a The victim of the deliberate homicide peace while killed his performing duty;
“(d) deliberate homicide was committed means of tor- ture; or
“(e) The a deliberate homicide was committed by person lying ambush; or in wait or
“(f) as a The deliberate homicide was committed of part which, in scheme or if would result the death operation completed, or more than one person.”
“94-5-304. Sentence of Death for Aggravated Kidnapping. death conviction “A Court shall the sentence of impose following dead as the if it finds that victim is aggravated kidnapping result of the criminal conduct unless there are cir- mitigating cumstances.” 1973, in and became effective on
These sections were enacted 1, 1974, 1974. In section 94-5-304 was amended Ch. January 1, 1974, read: Laws of § “94-5-304. of death A kidnapping. Sentence aggravated for death conviction of following court shall the sentence of impose ag- is dead as the result if it finds that the victim gravated kidnapping the criminal conduct.” This amendment deleted the “unless there are mitigating phrase: circumstances.” The amendment had an effective date of March 11, 1974. At the time of death of Lana this amendment Harding, Therefore, constitutionality was not in effect. our analysis at the them as existed they these death statutes will concern penalty of the crimes involved in this case. time here in statutes in were penalty question adopted The death (1972), 408 U.S. 92 S.Ct. to Furman v. response Georgia, Furman, 346. In Court reversed Supreme 33 L.Ed.2d vacated death sentences three defendants. It was imposed curiam with five per opinion, concurrences four separate dissents. The five separate concurring each asserted dif- opinions theories ferent in finding question statutes unconstitutional. flaw the fatal Essentially, the death under the concur- penalty, Furman, ring opinions was the absence of consistent application of the sanction.
The cumulation of led to majority Furman con- opinions sideration confusion the several states’ among which legislatures e., desired to retain a viable death i. constitutionally penalty, death that was penalty being not ar- imposed consistently In some bitrarily. was jurisdictions Furman read requiring strictly death sentence for mandatory certain classes proven In crimes. other jurisdictions, Furman read as un- attacking bridled discretion rather than discretion se. states per These passed statutes to control the discretion of the sentencing These authority. *32 statutes allowed the death to be when penalty imposed only un- mitigated aggravating circumstances were present. 1976,
In
the United States
Court considered the
Supreme
con-
stitutionality
mandatory death
statutes.
v.
penalty
Woodson
Carolina, (1976),
280,
2978,
428
96
North
U.S.
S.Ct.
49 L.Ed.2d
944. The statute before the Court was North Carolina’s death
statute. It
a death sentence for all
con-
penalty
provided
persons
victed
first
murder. The
degree
Supreme Court held the statute
unconstitutional as violative of the Eighth and Fourteenth Amend-
cases,
In two
ments.
later
Court
Supreme
also held mandatory
(1977),
death penalty statutes unconstitutional. Coker v. Georgia,
584,
2861,
982;
97
433 U.S.
S.Ct.
53 L.Ed.2d
Roberts v.
Harry
Louisiana, (1977),
633,
1993,
431 U.S.
97 S.Ct.
“* * * it is essential that the decision allow for sentencing capital consideration of whatever be rele- mitigating may circumstances * * *” vant to either the offender or particular particular offense. Roberts, 637, Harry 431 U.S. 97 1996. S.Ct.
320 case, attack in the instant sec- statutes under
The death penalty 94-5-304, at time of the as existed they 94-5-105 and tions Thus, crimes, statutes. can they death penalty are not mandatory Coker, Woodson, and decisions of under the withstand scrutiny allow for consideration of they mitigating Roberts because Harry circumstances. 1976, considered constitutionality
Also in Court Supreme statutes that controlled discretion of those death penalty their mandatory counterparts, Unlike sentencing authority. (1976), 428 v. U.S. these statutes. Georgia, Court upheld Gregg 859; Florida, (1976), 153, 2909, v. 49 L.Ed.2d 96 S.Ct. Proffitt 913; 2960, Texas, v. 49 L.Ed.2d 428 U.S. 96 S.Ct. Jurek (1976), 929. In 96 S.Ct. L.Ed.2d Gregg U.S. Court stated: Supreme a sentenc- where discretion is afforded
‘‘Furman mandates that the determination of whether on a matter so grave ing body that discretion must human life should be taken or spared, the risk of and limited so as to minimize wholly directed suitably 189, 96 2932. action.” 428 S.Ct. U.S. arbitrary capricious are designed statutes defendant challenges The Montana These statutes the discretion of the sentencing authority. control between unbending the constitutionally permissible ground are in in the imposi death sentences and unbridled discretion mandatory the death penalty. tion of the United Proffitt,
In its discretion of Gregg, Jurek have established three general Court seems to States Supreme statutory are to a valid death requisite penalty criteria which scheme.
First, cir at least one statutory aggravating there must be *33 Second, the be considered. before a death sentence may cumstance to before the afforded the bring defense must be opportunity mitigating sentencing any at sentencing body separate hearing Third, there the individual defendant. circumstances to relating of the deci sentencing review judicial be available prompt must a means to pro jurisdiction, providing sion a court of state-wide by evenhanded, mote the rational and consistent of death imposition sentences under the law. 94-5-105 and 94-5-304 Section satisfy 94-5-105, first criterion set forth above. Under section the death cannot be unless penalty one of six cir imposed aggravating Here, cumstances is found the trier of fact to exist. it was found by that defendant committed deliberate homicide means of torture. by 94-5-105(1)(d), 94-5-304, Section 1947. Under R.C.M. the death sentence cannot unless it is found the imposed victim kidnap died as a result of the Such aggravated kidnapping. finding made in this case by jury. criterion,
The second that circumstances be mitigating reviewed at a is separate sentencing hearing, satisfied two separate First, statutory both death provisions: statutes penalty provide the court “shall” impose sentence of death “unless there are circumstances”. mitigating Defendant the “unless” urges clause may circumscribe the purport sentencing judge’s but authority, there are no standards guiding nor sources of information provided for. This argument the second ignores statutory relevant provision is, here—that the presentence investigation report be delivered to and considered court sentencing cases. felony Section 95-2204, R.C.M. shall provides report contain informa characteristics, circumstances, needs, tion “the respecting defendant; potentialities his criminal and social history; * * * offense; victim, circumstances of the and the harm to the his immediate and the family, community.” report provides sentencing authority with whatever circumstances exist in may mitigation defendant’s conduct. the two
Reading provisions together, the court is re sentencing quired to consider circumstances and mitigating required con sider the presentence investigation which must report contain addition, matters relevant to In mitigation. all courts sentencing 95-2201, are directed by section R.C.M. thier perform functions “to sentencing the end that convicted of a persons crime shall be dealt with in accordance with their individual characteristics, circumstance, needs and This man potentialities”.
dates the of sentences imposition which are not to disproportionate of the crime. severity the defendant is Finally, authorized to a seek to to the court his and hearing present evidence in testimony mitigation punishment.
Prompt judicial review of death sentences is for provided by ap- to this Court as peal well as review to the Sentence Review Divi- sion. This Court determines the of the sentence legality imposed, Simtob, (1969), 286, State v. 154 Mont. 462 P.2d while the Sentence Review Division is to determine the designed ap- propriateness sentence with to the respect individual of- fender and particular offense. This satisfies the third criterion.
Although Montana’s statutory scheme is unlike those approved the United States Court in Supreme Gregg, Proffitt, furek, we see no substantive- failure of Montana’s scheme to statutory with constitutional comply standards. Our is neither system wholly nor mandatory There wholly discretionary. are precise statutory requirements for finding aggravating cir- mitigating cumstances, and a procedure out the facts flusing with respect to such levels, circumstances. There is at review two appellate in- that the sentence is suring both legal to the proportional nature short, and class of crime. In we believe that the Montana statutory herein, scheme in existence at the time of the crimes affords defend- ant the procedural safeguards his necessary protect substantive rights be sentenced without arbitrariness or caprice. Therefore, we hold that the death statutes penalty in question in this case are constitutional under the United States constitutional requirements. are constitutional on They their face and as applied to this defendant.
Defendant next contends the burden of shifting in- proving to the defendant offends sanity the due clause of the Mon- process tana Constitution. case,
Defendant relies on the
of a Colorado
reasoning
State ex rel.
Court, (1968),
District
165 Colo.
Defendant’s
similar.
the United States
reasoning
*35
in
Court held that
the federal
the burden was on
Supreme
system,
a
state
reasonable doubt. Davis v.
disprove insanity beyond
States,
469,
353,
(1895), 160
16
United
U.S.
S.Ct.
and Felker were based on the due clause of the Montana process Constitution. There is no mention of Montana Constitution in of them. followed the rule They merely announced Court in Davis. The Supreme Court in Leland v. Supreme Oregon, (1952), 790, 1302, 343 U.S. 96 S.Ct. L.Ed. noted that doctrine, Davis “obviously establishes no constitutional but only the rule to be followed federal courts.” it Similarly, apparent Brooks, Peel and Felker were constitutional establishing could conceivably change
doctrine for Montana. as Congress Just Davis, the Legislature clearly the federal rule set forth in Montana the rule announced in the Montana early had power change cases. Court, the United the issue
On remand from States Supreme trial instruction on mental before this Court is whether the court’s disease or defect shifted burden unconstitutionally proof directed us to state of mind to defendant. The Court Supreme decision in this case in of Patterson v. reconsider our early light York, (1977), 281. In 432 U.S. 97 S.Ct. 53 L.Ed.2d New so, disease or defect as we will examine the defense of mental doing exists Montana law and as in this case. it under applied disease or defect is ad
Evidence of defendant’s mental in Montana criminal trials for two defenses. Sec statutory missible 95-501(a), R.C.M.1947, tion provides: criminal conduct if at the time of “A is not person responsible conduct as a result of mental disease or defect he is unable such of his conduct or to conform either to appreciate criminality of law.” his conduct to requirements Montana’s defense. Section This section defines “legal insanity” *36 95-503(a), R.C.M.1947, the defendant the burden of places upon a of the evidence. his establishing legal insanity by preponderance Defendant concedes the State allocate to the defendant the may without the United insanity violating burden of his proving legal York, v. Constitution. Patterson v. New Rivera supra; States 160; Delaware, (1976), 877, 226, 429 U.S. 97 S.Ct. 50 L.Ed.2d however, contends, that the v. Defendant Leland Oregon, supra. mental disease or defect uncon involving second criminal defense intent, to defendant to an shifted the burden stitutionally disprove essential element of the crime charged. which, ex defense if proven,
In addition to the legal insanity act, criminal a for an otherwise cludes defendant’s responsibility disease or defect is also admissible of a defendant’s mental evidence “* * * it is relevant to criminal trials whenever prove in Montana which is an did not have a state of mind that the defendant did or 95-502, This element of the offense.” R.C.M.1947. section Section defense, ais codification of the “diminished under which capacity” a defendant show that he suffered from a mental disease or may which, defect insufficient establish as although legal insanity defense, made him criminal in complete incapable forming tent defined statute an element of the crime charged. 1967, 95-502, R.C.M.1947,
In
when section
was enacted
legislature,
Montana
homicide in Montana was divided into four
classifications,
each
different
requiring
mental state.
specific
deliberation,
The intent element of first
was
degree murder
premeditation
malice
that of
aforethought, while
second
murder was
degree
malice
without
aforethought,
deliberation or
94-2503,
premeditation. Section
R.C.M.1947. State v. Brooks
(1967),
399,
150 Mont.
The diminished defense was used to show capacity traditionally that, defect, due to mental or disease the defendant was unable form the intent was specific which an element of higher degree homicide, an offense such as and that a lesser criminal degree homicide, which lacked that an specific intent as element of the crime, See, was in fact committed. A.L.R.3d Anno. 22 (1968). Thus, 1238-43 under Montana law in effect when section 95-502, R.C.M.1947, enacted, evidence of defendant’s men tal disease or defect was admissible to for exam prove disprove, that, a defendant committed ple, although an unlawful with killing malice he had not the form the aforethought, capacity specific intent —deliberation or was an element of premeditation —which first degree murder. *37 1974, when Lana
By January and Harding kidnapped murdered, Montana had its criminal code.The adopted present new code abolished all distinctions between first and second degree murder. Malice are no aforethought premeditation longer elements criminal homicide offense. The intent element of the crime of homicide under Montana law is present merely “pur or the death of posely, knowingly, negligently” another causing 94-5-101, human Section being. R.C.M.1947. There are three types with, of criminal homicide. Defendant was and convicted charged of, homicide, deliberate a criminal homicide committed purposely 94-5-102(1)(a), or Section R.C.M.1947. knowingly. Mitigated homicide, offense, deliberate a lesser also that the defend requires ant commit the criminal homicide or but purposely knowingly, that the deliberate homicide be committed under the influence of extreme mental or emotional stress for which there is a reasonable 94-5-103(1), excuse. Section R.C.M.1947. The third type homicide, homicide, criminal to the facts negligent inapplicable shown at trial.
Because the definitions of both deliberate homicide and statutory deliberate homicide require State of the mitigated proof by identical mental or was no purposely knowingly element— —there lesser of criminal homicide of which defendant could have degree been that he convicted was unable to form the mental upon proof that, state in deliberate homicide. The State concludes required because all or required of the charges showing purposeful conduct, the section 95-502 defense of mental disease or knowing defect intent form negating ability purposeful knowing was a rather than.a defense and as such merged complete, partial, 95-501. with defense of section insanity that, case,
We do not with the State this agree defenses were iden insanity necessarily diminished capacity state of or knowingly” tical. mental prescribed “purposely ap deliberate to each element of the crime of homicide. Section plies (2), 94-2-103(1) To be of deliberate R.C.M.1947. guilty homicide, therefore, have the to kill one must either purpose or. his would result in know that it was actions highly probable
327 the death of another human While would have being. legal insanity exonerated defendant from for his completely responsibility conduct, the could be used in criminal diminished defense capacity “* * * show, a to criminal homicide case that example, (the defendant of the although knew nature and act quality * * *) assault and knew that it was and so was not wrong” irrespon test, sible under “he lacked mental to legal insanity capacity * * Overholser, intent form the to kill Weihofen and Mental Crime, of a Disorder 56 Yale 979-80 Affecting Degree L.J. then, (1948). A defendant due to mental disease defect or. him from the intent commit precluding forming to criminal homicide, be found might lesser included offenseof guilty ag See, Booth, (1977), assault. v. gravated State 30 567 Or.App. P.2d 561-62. “* * *
Defendant maintains the State was required prove to that had, had, defendant have could state of mind particular offense”, is an which element of the and that making diminished by defense, and affirmative capacity trial judge unconstitutionally shifted to defendant the burden of an essential element disproving offenses charged. “ * * * the Due Process Clause the accused protects against con- viction except doubt upon proof beyond reasonable fact every necessary constitute the crime with which he In re charged.” (1970), 358, 364, 1068, 1073, Winship, U.S. 90 S.Ct. 25 L.Ed. 2d 368.
We must therefore Montana’s analyze deliberate homicide statute determine if a defendant’s lack of mental disease or defect, and his resulting ability or cause purposely knowingly the death of another ais fact person, necessary constitute the York, crime charged. Patterson v. New supra. Montana,
In person commits offense of deliberate homicide if he or causes the death of another purposely knowingly human 94-5-102(1)(a), 94-5-101(1), Sections being. R.C.M.1947. The offense, defined statutorily elements of the of which each the State doubt, must a reasonable prove beyond are therefore causing with are death of another human being knowledge you of that human be or with the to cause the death causing purpose * * “* with A acts “with or knowledge” “knowingly” ing. person an defining to the result of conduct described statute respect when that it is that such result offense he is aware highly probable * * *” 94-2-101(27), will be caused his conduct. Section The statute does not the State to require prove R.C.M.1947. defendant does not suffer from mental disease or defect which defendant from the act would prevent doing purposely knowingly. or defect is not an
Because
or lack of mental disease
sanity
the crimes charged
element included in the definitions of
*39
defendant, the
the rebuttable
rely upon
presump
State
against
may
was committed.
tion that the defendant was sane when the offense
684,
1881,
Wilbur, (1975),
95
44
v.
421 U.S.
S.Ct.
Cf. Mullaney
U.S,
508;
212-216,
see,
York,
97
432
L.Ed.2d
Patterson v. New
all the
is a
which
S.Ct. 2319. The sanity presumption
presumption
Weihofen,
See,
Mental Disorder
states
in criminal trials.
H.
employ
214-215,
(1954),
collected
a
cases
Defense,
pp.
as Criminal
therein;
799,
at
1002. Without
Leland v.
343 U.S.
72 S.Ct.
Oregon,
a
that
is sane and
of committing
presumption
everyone
capable
“* * *
crimes,
would
be under the necessity
the government
always
a
of the accused. But
affirmative evidence of
adducing
sanity
embarrass
that character would
delay
requirement
seriously
crime, and in most cases be un-
the enforcement of the laws against
* * *”
469, 486,
States, (1895), 160 U.S.
v. United
necessary.
Davis
353, 357,
trial court instructed the jury
affirmative defense. Section a of forming purposeful and capability of sanity presumptions “* * * intent, evidence relevant to a admit may defendant knowing state of mind is an that he did not have particular prove which 95-503(b)(2), of the offense Section charged.” essential element standard of do not define the proof These sections R.C.M.1947. defense, and neither section to establish this affirmative necessary 95-503(b)(2) this has been Court. interpreted by 95-502 nor section defense, that, a section 95-502 defendant must We hold to prove evidence that he lacked the abil prove by preponderance defect, form that criminal mental to mental disease or due ity, an of the crime with is defined statute as element state which which he is charged. the diminished the burden of proving defendant Placing “* * * ‘some justice does not offend principle defense
capacity our as to conscience of people so in the traditions and rooted * * *” (1958), 357 U.S. v. Randall ranked as fundamental.’ Speiser 1341, 513, 523, 1460. Several jurisdic- 2 L.Ed.2d 78 S.Ct. as an affirmative tions not even allow diminished capacity do 1054; (1977), See, Doss, 568 P.2d 116 Ariz. v. defense. State 64; States, col- 365 A.2d cases Bethea v. United (D.C.App.1976), Indeed, sole in the opinion 1235-1238. lected in 22 A.L.R.3d *40 must whether a trial court considered in which the Court Supreme diminished evidence of that should consider instruct jurors they local a that this was matter peculiarly the Court held capacity, to the local courts. concern entrusted
“* * *
to adopt
the District of Columbia
For this Court to force
would
criminal trials
requirement
capacity]
such [diminished
of re-
theory
in the common
involve
fundamental
law
change
463, 476,
States, (1946), 328 U.S.
Fisher v. United
sponsibility.”
added.)
1324,
(Bracketed
1318,
material
science has been long noted the courts. v. Greenwood States, (1956), 366, 412; 410, United 350 U.S. 76 S.Ct. 100 L.Ed. 1137; Arizona, (9th 1973), v. Warhlich Cir. 479 F.2d Bethea v. States, United supra.
“The science of is at psychiatry most an educated to guess as behavior, of human which certainty cannot with predicted * * *” Guidice, (1973), absoluteness. v. Del 74 Misc.2d People 345 N.Y.S.2d 344. defense,
In
the diminished
rejecting
capacity
courts have also
diminished
compared
with other
capacity
defenses
noted:
“* * * unlike the notion of
or relative
partial
conditions
insanity,
intoxication, medication,
are,
such as
or
epilepsy, infancy,
senility
in varying degrees,
susceptible
quantification
objective
** *”
demonstration,
lay understanding.
Bethea v. United
States,
See, Arizona, Doss, Wahlrich v. State v. supra; supra. The myriad with problems allowing introduction psychi- atric to determine criminal are testimony discussed responsibility Litwack, in Ennis & and the Psychiatry Presumption Expertise: Courtroom, (1974). Coins Flipping 62 Cal.L.Rev. Despite potential proof dimin- problems allowing defense, ished affirmative the fact that a state capacity despite very allow required even dimin- likely constitutionally defense, ished as an affirmative Montana does allow the capacity defense. While the Montana legislature recognize willing diminished capacity: “* * * * * * affecting degree as an circumstance exculpatory * * * facts it was to do so if the only making of culpability willing with sufficient out the defense were established defendant
331 undertake to establish unwilling The itself State certainty. doubt, fear- facts reasonable perhaps absence of those beyond too that would be too difficult and that many persons ing proof if would that punishment treatment as murderers escape deserving de- doubt about the evidence need raise reasonable merely * * *” York, v. New Patterson fendant’s capacity], [diminished 207, 97 2325. U.S. S.Ct. case, the facts proved constituting
In this the State meticulously crimes beyond the deliberate homicide aggravated kidnapping doubt, all the reasonable based on evidence including any State, defect. evidence of defendant’s mental disease or alleged cases, with the Leland and Rivera could then constitu- consistent refuse to sustain defense of diminished the affirmative tionally unless defendant that defense proved by preponderance capacity of the evidence. the court the State to given by required
The instructions
clearly
a reasonable
element
offenses
every
charged beyond
prove
than
defendant
benefit of Montana law
gave
doubt
more
burden of
In Instruction
proof.
diminished
defense
capacity
that,
53 the
were told
before
diminished
jurors
considering
“* * *
defense,
were
the evi-
first determine from
they
capacity
in the
whether the defendant
dence
case
reasonable doubt
beyond
in the
court
did do the acts
him
Information.” The
charged against
find
instructed the
that to
defendant guilty
any
separately
jury
“* * *
first find that defendant
they
of the offenses
must
charged,
while
with
the act or acts charged voluntarily,
having
committed
to each
contained in
law
the offense
defining
element
regard
(Instruc-
of the mental states contained in the said definition”.
oné
29.)
that
if it found
tion
The court instructed the jury
only
beyond
charged
that
did
acts
reasonable doubt
defendant
“whether
him in the Information should
then consider
they
against
act or
not he
have had
mental state for the
requisite
or
could
(Instruction 53.)
found
acts which
have
he committed.”
you
the court
53 instructed the jury
in Instruction
Although
defense, no-
insanity
burden of
for his
proof
legal
to defendant’s
where in the instruction itself did
court
instruct the
specifically
as to
burden
what
defendant had
jury
proof
establish
satisfy
he could
not form a mental state of
“purposely”
“knowing-
*42
(the
due to
or
mental disease
defect
diminished
de-
ly”
capacity
*
“* *
fense).
established, however,
It is well
that
a
instruc-
single
isolation,
is
tion
not viewed in artificial
but must be viewed in the
(1973),
context of the
v.
overall
charge.”
U.S.
Cupp Naughten,
141, 146-47,
94 S.Ct.
ed a more burden lenient of on defendant than Montana law proof provided, because the instructions impressed that de- upon jury fendant had established his diminished successfully capacity if, case, defense after all considering the evidence in the jurors entertained a reasonable doubt as to whether defendant suffered from mental disease or defect which him from forming prevented of state mind with to the offense purposeful knowing respect charged.
“A to be person of of the offenses in of the guilty any charged any seven counts in the Information charged must have committed the act or acts with to charged while each voluntarily, having regard element in contained the law one of offense the mental defining (Instruction 29) states contained in said definition.” “ * ** In order convict defendant of the offense in charged said of counts all of the material contained in that any allegations * * count must be particular reasonable doubt *.” beyond proved (Instruction 6) * * * which,
“Reasonable doubt is of after the that state the case evidence, entire of all the leaves the comparison consideration feel that cannot they say they in condition jurors of minds of the to a moral truth certainty conviction abiding an (Instruction 7) charge.” which were this case given jury
The instructions law, but in- within the ambit of Montana defendant only protected than that to which proof a more liberal burden deed posited Not did instructions not shift was entitled. only defendant element the offenses defendant the burden disproving instructions, read also de- but the when together, required charged, by his diminished capacity merely raising fendant establish rather than by proof preponderance reasonable ^doubt, evidence. error we have all the
In examined specifications summary, We and find no reversible error. have further raised defendant York, in ac- considered this case of Patterson v. New light supra, cordance with the mandate of the United Court on Supreme States remand, and no error. *43 find
The of conviction and the of death affirm- judgment sentence are ed. DALY, LESSLEY,
MR. W. W. District Judge, sitting JUSTICE Harrison, SHANSTROM, and for D. District Judge, Justice JACK Court, in the vacant seat on the sitting concur. dissents.
MR. SHEA JUSTICE dissenting:
MR. SHEA JUSTICE worst my for it confirms opinion, am distressed by majority I brutal, heinous has ruled that effectively The majority fears: suspending operation the State of Montana justified murder of and of Montana of the Constitutions State and application this result by ig- has States of America. It accomplished the United is a mockery an the law the facts and by application noring we are sworn uphold. the very principles denied this Court has spectrum, both of the procedural At ends In he entitled. to which protections the constitutional defendant was instance, to a search warrant pursuant first evidence seized taken in flagrant defendant’s disregard constitutional and rights, instance, should have been In the accordingly, second suppressed. the decision upholding death under Montana’s so- penalty called scheme for statutory the death imposing is a penalty, flagrant misinterpretation requirements set forth Moreover, United States is a Court. it Supreme flagrant misinter- of our own pretation statutes.
The circumstances of this murder the emotions of the whipped citizens of Pondera to a ferish and caused an County pitch outcry this state. It such throughout that even the trial who did judge, trial, demonstrate exactly impartiality moved throughout the trial to I Cascade can County. only conclude that the enormity of the crime has caused Court as this well as the trial court to deny defendant benefit of the law that supposedly protects all citizens, not the “good” citizens. This Court no more solely granted a fair review to defendant than the citizens of Pondera County could have him given fair trial. The can Montana people Montana; well advised there is no law in the State of that hence- forth the Supreme Court shall decide each case on an ad hoc basis. deceives the reader into majority opinion the facts thinking set forth in the were the same facts used as a opinion substantially basis establish cause for the initial criminal probable complaint and arrest warrant issuance of the search warrant. On the issue of cause for both the probable complaint criminal and ar- warrant, seizure, rest issue of search and general fails to which opinion distinguish between those facts were de- and used after the issuance of the veloped arrest warrant search warrant which and those were to the presented magistrate as a basis establish the probable cause. Obviously, probable cause can be determined those facts which are only by presented *44 the magistrate.
It is also to important note that defendant has attacked the pro- cedural formalities their and (having foundation the genesis statutes) Montana Constitution and Montana used for obtaining both the criminal and search warrant. complaint The majority’s a issues raised almost silence. The stony these issues is to response a rhetoric. sidestepped fog have been fact, the of the facts in opinion the sets forth majority many In does not distinguish a conviction—but which were used obtain to establish original those facts which were used them from to obtain a search warrant. sign complaint cause probable facts are almost is led to believe the The result is that reader at the middle of the For example, approximately synonymous. facts, statement infers all the following court’s statement as a in the to this were used prior point facts developed opinion arrest cause for the warrant original basis to establish probable warrant: and search
“As a the sheriff and his result of investigation by deputies, afternoon, 22, filed a attorney, Tuesday January county before the justice defendant with assault complaint charging also for the arrest county The obtained warrant peace. attorney of defendant and search warrant.”
The is that a few of facts this statement preceding truth only were used as a basis cause for the probable complaint to establish and for search warrant.
After this statement continues foster the making majority then forth facts which came to wrong sets impression. opinion the issuance of the arrest and search warrants. But the light after concludes majority saying:
“This, in our is a sufficient cause to opinion, showing probable issue warrants. the reader is left in the dark as to what facts or
Unfortunately this of facts the relied on when conclu- allegations majority making sion. facts,
After statement I reading rereading majority’s cannot those facts which the relied to con- discern upon majority (1) of the crim- clude there was cause allow probable signing assault and inal defendant for misdemeanor against complaint warrant, (2) arrest to allow the is- consequent issuance of an the search of defendant’s authorizing suance of search warrant *45 home and truck for his pickup clothing allegedly worn January 21, 1974, and Lana worn on Harding’s clothing allegedly January 21, 1974. facts,
Because of this to set forth the I am failure to do compelled detail, so in because then there a great only can be meaningful discussion the law. A brief of the issues will applicable analysis facts in their put proper prospective.
The issues raised filing initial criminal complaint defendant with charging misdemeanor assault and arrest war issued, First, rant can be divided two into areas: under whether sec 95-603, R.C.M.1947, cause, tion there was probable considering all of the evidence to allow the presented magistrate, filing Second, a criminal complaint against defendant. whether State with complied statutory formalities to the relating signing complaint presenting evidence on cause. probable It is also between cause to necessary distinguish probable sign a criminal a cause to obtain search war- complaint probable rant. a To establish cause to obtain criminal probable complaint (1) (here, there is test: Is it that a crime two-pronged probable assault) (2) it misdemeanor was committed? Is that the probable de- fendant committed crime? the State must meet both Obviously, tests. Probable cause to a crime believe was committed does not ip- so facto establish that a cause defendant com- probable particular mitted the crime.
Even cause tests met for assuming probable are of a filing this criminal still does not establish cause complaint, probable obtain a warrant. Probable cause to obtain a search war- search rant objective has distinct must be evidence which a —there man reasonable would conclude the items probably sought are at the In searched. the context of this case it was place sought to show required facts to reasonable belief that Lana Har- leading clothes and defendant’s clothes were either in his ding’s pickup truck in his home. Absent evidence to such a reasonable justify belief, the search warrant should not have issued. been
The search and seizure can questions be divided into generally First, three areas: whether there was cause for the is- probable warrant, search suance of the all the evidence considering to the that included in form magistrate, including presented written and that the form of application unrecorded sworn second, testimony; whether the State with the constitu- complied tional and statutory formalities to the for a relating application warrant; third, search whether the search warrant con- *46 verted the sheriff into search warrant by general the manner which in he executed the search warrant seized and what he con- sidered to be evidence not named in the search warrant. issue, the first defendant contends even
Concerning no assuming and irregularities and constitutional procedural defects statutory warrant, for the search applying there was no probable cause to the issue search warrant. issue, the second
Concerning defendant contends the manner of for applying the search warrant is constitutionally statutory defective for two reasons:
(a) That is was unconstitutional to allow a search warrant to be issued based in whole or in on evidence contained part in sworn but unrecorded testimony reduced to writing;
(b) That the written for the search warrant cannot application statute; it is upheld because not even an affidavit as required by rather, it is an not before the acknowledgement, signed issuing magistrate, but before the county attorney’s secretary. issue, third the defendant the
Concerning contends of testimony the who issued the search warrant and the magistrate testimony warrant, the sheriff who executed the search with the together warrant, the sheriff’s return of search that shows the conclusively search warrant was its either on face invalid because it was a warrant, search the sheriff general that converted it into search warrant and therefore general invalid. constitutionally detail, While I will the facts show that follow- develop the they (the were used to establish cause factual ing allegations probable statement is indented only purpose emphasis):
At on 1974 defendant approximately p.m. January knocked on door of the Pearson residence (approximately mile nervous and one-half from the He was excited teacherage). he out breath and he told Don Pearson had been appeared his He asked Pearson for assistance in truck running. starting which was the road near Defendant teacherage. stalled on told her he called his wife from the Pearson home and would also with be home Pearson left defendant stalled shortly. got started it. pickup pushing 22, 1974, Lana following morning, January Harding duties. Later teaching morning
failed to for her appear (which she lived to the where sheriff’s went deputies teacherage school). from the course of During was short distance just scuff on the floor and two found marks investigation their they were A woman’s pair glasses throw rugs disarray. a woman’s red they
floor. found teacherage striped Outside what to them be a They appeared drag shoe. also found tennis to a road. At end nearby drag trail from teacherage was a on the which to be ground appeared trail there substance awas woman’s wristwatch. Pear- blood. on the Nearby ground truck was told Hoover that defendant’s son apparently deputy blood and in the to where watch road close suspected parked *47 were found. was to the the magistrate by of this information imparted
Some of And some the in- sworn of Hoover. deputy unrecorded testimony unsworn magistrate signed, was to imparted formation his Nelson which constituted county of attorney applica- statement a search warrant. tion for are that in the those majority opinion facts stated
All additional after the of the arrest and either issuance developed were sworn warrant, this, known were not they or if were before search to cause. In as a basis establish probable to the magistrate given fact, was in the majority opinion of the mentioned most evidence (the was Harding’s body Lana day either on January found found) or on the following. days to be- distinguish failed that the majority is also significant
It tween those facts to presented in the of magistrate form the warrant, written for the application search and those facts dis- closed to the magistrate the oral and unrecorded of testimony sheriff’s Hoover. All we derive from the deputy majority opinion is their conclusion the “combination established probable thereof added.) cause.” It is (Emphasis intellectual for the ma- dishonesty ’ not to jority recognize that the “combination is a radical thereof departure from of existing interpretations constitutional law in this state, the only justification which to carve out one time only exception applying defendant so that his conviction can be upheld.
With these matters out of the I preliminary de- way, provide tailed statement the facts the criminal surrounding issuing and arrest and It complaint search warrants. must be remembered that with the of the exception information contained in the applica- warrant, tion for search background factual developed by Wolfe, defense counsel by taking depositions magistrate Hoover, sheriff and deputy Nelson. county attorney These deposi- 12, 1974, tions were on taken March almost three months after defendant was arrested.
Authorities were alerted after Lana failed show Harding up duties on the teaching morning 1974. The January cold, weather was dry clear. There was no on snow ground. The sheriff and Hoover drove to the school deputy teacherage investigate. Inside there scuff teacherage were floor, marks on the two small throw were in and a rugs disarray, pair of woman’s was on the glasses floor. Outside the teacherage found woman’s they red tennis shoe and there was what appeared to be a trail drag leading ultimately road. Near the end trail, found a watch drag woman’s and also a they substance ground to be blood. appeared
Hoover also talked to Dan Pearson who had helped defendant start his stalled pickup evening before. Pearson told Hoover that the defendant had come to his home asked him if he would *48 his him stalled truck which help push was on the parked road near to be nervous and excited. the Defendant teacherage. appeared he Defendant running. Pearson that had been Defendant told and told her he would be home his wife from Pearson’s home called in the afternoon sheriff deputy truck started. Late got after he his he tell him what had went office to attorney’s Hoover to county learned. defendant charge decided to
The county attorney immediately start assault. had his secretary typing with misdemeanor He down he and told him come called Wolfe papers magistrate file a criminal complaint. could attorney to his office so county talked about in It they things general. arrived When magistrate time attorney’s at the same the county clear not but apparently warrant, Malek, also the arrest Mrs. was secretary, typing and the search warrant. for search warrant application Wolfe Hoover placed deputy a short while magistrate After he had learned earlier that testified what under oath and Hoover testified about this all were He prepared. time day. By papers duties, about the showing up teaching Lana Harding and the scuff marks the floor of the teacherage, woman’s glasses testified as floor and He also rugs on the disarray. far the end of drag watch found in the road not from woman’s trail, on the but to be blood ground, and that there also appeared if it was blood. had not determined that they with who told Dan Pearson also testified his conversation He truck in vicinity defendant’s him about his pushing he had Defendant told on the before. night teacherage Pe.arson out Hoover that defendant was Pearson told running. been also and excited. Pearson told nervous breath appeared his home and called wife from Pearson’s that defendant Hoover he his truck started. soon—when got her he would home told he had no that deposition testified at county attorney to him had been provided the facts than what knowledge other Wolfe, Hoover, testified that and Nelson each Hoover. by deputy deter- Wolfe testified sworn. Magistrate never was Nelson on the exclusively he relied cause if there probable mining *49 341 of sheriff Hoover and on testimony the written deputy application for search warrant signed by Nelson. Based on county attorney combination of Hoover’s and the written testimony application Nelson, signed by Wolfe county attorney magistrate there thought was probable cause allow the of a signing criminal of complaint misdemeanor assault and for the issuance of a search warrant.
So that there can no of the contents of misinterpretation and warrant, form the written applications search it is set forth verbatim:
“THE UNDERSIGNED BEING FIRST DULY SWORN DEPOSES AND SAYS:
“That Affiant is the Pondera County Attorney, whose office is in Montana; Conrad, he HARDING,
“That has reason to believe that one LANA School, school Prairie View located in County, Pondera teacher.at Montana, is and missing have been the may victim of foul play;
“That the said LANA was HARDING at her school present 22, 1974; class on the scheduled time on January that said HARDING, LANA has a reputation and con- being prompt teacher, scientious and lived next door to the classroom in the teacherage.
“That investigation Pondera Sheriff’s Office has County found evidence of in the where said LANA scuffling teacherage HARDING resided. That a red and white tennis shoe was striped found outside the with bow tied. teacherage That there is evidence of an object from the being dragged a woman’s teacherage. That watch and blood stains were found in the same areas pickup MCKENZIE, truck driven DUNCAN hereinafter to as referred Defendant, 21, was observed on the evening at January 8:00 to 8:30 approximately o’clock P.M.
“That said Defendant nervous and appeared excited highly out breath asked Dan Pearson for assistance to a get the said defendant truck started. That 1950 black Dodge pickup located in the known as the old Frank place, resides house Jochem (9), Quarter of Section Nine Quarter on the Northwest Southwest North, (2) (29) Dan Two West. That Range Township Twenty-nine north the Defend- Pearson resides next to teacherage directly ant’s residence. black was driving the Defendant
“That pickup assisting the said Dan Pearson’s upon Dodge pickup, he observed the starting pickup said Defendant in pickup (100) feet of the teacherage. within one hundred stalled headed started the Defendant pickup “That upon getting his which the road south leads an direction easterly passing *50 as the place. house described above Frank Jochem Affiant, “WHEREFORE, for the issuance the said hereby prays Defendant, DUN- for the search of the said of Warrant Search MCKENZIE, Quarter in the residence located Southwest CAN (29) (9), Quarter Township Twenty-nine Northwest of Section West, North, (2) within the surrounding building Two and Range black Dodge pickup for a search of and curtilage, of 1974. That night January driven the Defendant by assault the instruments of the search would to seize object of to, HARDING, but not limited including, of LANA the said HARDING, to-wit: as the whereabouts of the said LANA evidence boots, shirt, worn by and rubber overshoe brown sleeve long jeans Defendant; sweater, coat, blouse woman’s and black purple and slacks and woman’s red with woman’s flower design, pink shoe, articles. and other contraband white tennis striped 1974. this 22nd day January “DATED H. Nelson “s/David Nelson “David H. County Attorney “Pondera me the undersigned, before this 22nd day January, “On Montana, Public for State Notary personally appeared, Nelson, David H. Pondera known to to be County Attorney, me whose person name is subscribed to the within instrument and to me he acknowledged executed the same. WHEREOF,
“IN WITNESS I have hereunto set my hand af- fixed Notarial Seal the first day year above written.
The above instrument constituted the for search application war- rant. At his deposition magistrate Wolfe testified that he relied upon this application oral unrecorded plus testimony Hoover as the deputy sole basis for the issuance of the search war- rant. The depositions deputy Hoover and county attorney Nelson corroborated this testimony. then magistrate signed a search warrant which had been office,
prepared county and it is also attorney’s set forth ver- batim:
“IN THE COURT OF THE CONRAD TOWNSHIP OF JUSTICE THE STATE OF MONTANA IN AND FOR THE COUNTY OF PONDERA, WOLFE, BEFORE ROBERT O. of the Peace Justice *51 “THE STATE OF MONTANA TO WALTER L. HAMMER- MEISTER, State, a Peace Officer of this other Peace Of- any ficer:
“A sworn me having been made before David H. application Nelson, Pondera he has reason to believe County Attorney, Pondera, Montana, State of the County
that on certain premises residence of Duncan being: and described particularly as the old area known curtilage and the surrounding McKenzie located in residence Frank Jochem (9) Township Twenty-nine Nine Quarter “Southwest of Section (29) (2)
North, State of Montana Pondera County, Two West Range and in items of property are now located certain personal “there evidence as there bemay black truck Dodge Pickup HARDING, and other personal of the said LANA whereabouts as, to-wit: described property shirt, brown sleeve
“A long
“Jeans boots
“Rubber overshoe defendant;
“worn by
“a black coat sweater
“Purple with flower design “Woman’s blouse slacks pink “Woman’s shoe red and white tennis
“Woman’s striped “and other contraband articles. that the there cause believe
“I satisfied that is probable am said described real property is in or described property upon testimony the sworn further upon and 1950 Dodge pickup Sheriff, Hoover, before this Judge: taken Deputy Jerry and search serve this warrant commanded to “You are hereby if the specified, described above for the property place it, it, prepare give receipt is found there seize property seized bring property written verified inventory you me, law. all manner required by in the before property 1974. of January this 22nd day “DATED O. Wolfe_ “s/Robert (Judge)” the Peace “Justice *52 Wolfe, it is not at all and Nelson of Hoover From the depositions warrant and the the search as to the of sequence signing clear event, the charge and arrest warrant. In any criminal complaint read as follows: misdemeanor assault about the 21st of January, McKenzie on or
“That one Duncan Montana, Pondera, committed State of A.D. 1974 in the County ASSAULT, (sic) said DUNCAN McKENZIE in the crime and wrongfully then and there did willfully, then and there being, ASSAULT, (sic) said in the the crime of committed unlawfully did, wrongfully, and there willfully, DUNCAN McKENZIE then and cause bodily injury and unlawfully purposefully knowingly form, HARDING, to the force effect LANA contrary 94-5-201, and statute in such case made and Section provided, of the State of Montana. against peace dignity that a warrant issue for “Such therefore complaint may prays said_and that he be dealt may the arrest of the with law. according Nelson_ H.
“s/David of January, before me on this 22nd day Subscribed sworn to A.D. 1947. O. Wolfe
“s/Robert of the Peace” “Justice Wolfe, at- During taking depositions magistrate county asked if Wolfe Nelson and Hoover were torney deputy magistrate had administered an oath to Nelson before Nelson com- signed However, occa- Each of them testified he had not. on later plaint. arrest, sion, some seven months after defendant’s county attorney “if he was Nelson testified that he had asked Wolfe magistrate under oath”. There is no indication in the record that reply later, to this And also seven months question. magistrate ever made oath Wolfe testified that he could not remember administering it is his to do so and that Nelson but that custom county attorney testified he considered Nelson to be under oath. Wolfe Magistrate of the criminal misde- cause used to allow probable signing used for meanor assault was the same as that which was complaint the isuance of the search the sworn but namely, warrant — unrecorded sheriff testimony Hoover and the deputy written ap- plication the search warrant signed by county attorney. *53 warrant, the arrest warrant and Upon receiving search sheriff home, Hammermeister drove to defendant’s and soon thereafter commenced a general exploratory search. waited in the car deputy and two other waited one deputies
hundred as the sheriff yards away went to confront defendant. The sheriff talked with defendant and his wife and then told defendant that he wanted to talk to alone outside. him
Outside he advised defendant of his and told him he rights under arrest for the assault of Lana and that Harding if found they Lana dead it Harding would be homicide. that Lana Har- Hoping alive, was still sheriff ding Hammermeister defendant encouraged to tell him where she was and that the suggested prosecutor would be more judge lenient on him if he told him where she was. then went back They into the house.
When defendant’s wife learned of the arrest warrant and search warrant, Hammermeister, in the words of sheriff “she went quite hysterical”. Sheriff Hammermeister called his immediately into the house deputies and the search commenced at approximate- 7:30 and lasted until ly p.m. 11:30 this p.m. time defendant During handcuffed, him, remained first with his hands behind but later the handcuffs were taken off and he was cuffed with his hands in front of him. This was in to a apparently response request defendant that he wanted to hold his children on his The record does not lap. disclose whether the sheriff allowed the defendant to hold his children.
The search that ensued was not confined that of looking warrant; rather, the items listed on the search it was a blanket search. The sheriff seized all he somehow property thought might fit into the case. He noticed what he be blood and hair thought the bed of the truck and seized truck and all its contents. pickup He seized items of men’s clothes that many were not described the search warrant. He forced defendant to and seize all the strip cut of hair from defendant’s clothes he was He off piece wearing. head it as evidence. While defendant was stripped and seized naked, defendant’s the sheriff also some hair from pubic “plucked” with the sheriff and his headed to town body. Finally, deputies their search in their custody defendant in bounty posses- sion.
On the the sheriff filed with the following day, January a sworn statement the items he seized magistrate listing pursuant the search warrant: WARRANT OF SEARCH
“RETURN AND RECEIPT O. WOLFE COURT OF ROBERT “JUSTICE *54 Issuing “Judge “I, Hammermeister, Sheriff, W. L. of a war- search by authority rant directed to W. L. Hammermeister this on 22nd court by day 1974, have searched the in the January described warrant premises and seized have items of following personal property directed the warrant:
1 of red boots: pair wing
1 blue taken off pair jean type pants person: 1 of overshoes: pair
1 boots taken off his pair cowboy person: 1 white shorts taken off pair person:
1 and contents: complete pickup
1 black and white taken off pair gloves person: 1 brown and white: plaid jacket
1 white T-shirt taken off person:
1 Air force taken off type jacket person:
1 white socks taken off pair person: knife taken off pen jank person:
Pubic hairs head hairs of of suspect: suspect.
“This list is full and and contains item siezed complete every me. Hammermeister, sworn,
“W. L. first being duly deposes says that he is the named in the above return that he has person it; true; all of the matters stated therein are that the prepared list of is true and and that the personal property complete; property has been delivered to the proper judge. L. Hammermeister
“s/W. to and subscribed “Sworn before me 1-23-74. O. Wolfe_
“s/Robert “Judge” items on the return which can at least be con- only arguably sidered as seized to the search warrant are a being pursuant pair (taken blue from defendant’s and a of boots. All jeans person) pair other items seized were not on the search warrant. defendant,
After defense counsel was filed ex- they appointed tensive briefs in of their that the supporting arguments support evidence should be because it was seized. suppressed illegally They also made a reasonable the district that as to each request.of judge after of the contentions he make of in his order. findings Shortly on the took motion hearing suppress following exchange place:
“THE COURT: You want me to do what? Include in order a “DEFENSE COUNSEL: your finding upon which base order. your you
“THE COURT: I will make it. Your Certainly finding upon believe, taken. motion to I do not was well The evidence suppress, moment, under an order—the term me for a but seized escapes they it obtained search warrant. I found that was issued on validly cause. probable
“DEFENSE That is what I wanted the Court to COUNSEL: out. make record, but I
“THE It is state it is done COURT: the moment I will make it clear.” perfectly
A short time later the court issued an order several covering defense motions. The of the order based on the motion to entirety is: suppress
“The defendant’s Motion to Evidence heretofore Suppress and briefed is argued DENIED.” hereby defense counsel had Obviously, no way determining why did, court ruled the it or even if way the trial court con- seriously sidered the motion to I can conclude that it was not suppress. only considered. seriously
After the returned its jury with verdict and motions guilty for a new trial had been made and the court ruled in a argued, again trial, fashion summary as to all the raised for new grounds mere- ly concluding motion for new trial was denied. Again, defense counsel has no way understanding reasoning of the process trial court because of the order entered. The importance setting out the reasoning of the trial court processes has been thoroughly set forth in Co., (1978), Ballantyne v. Anaconda 175 Mont.
“We with defendant’s disagree contention there was no probable cause arrest or search warrant. This Court in State ex rel. for Wilson, (1973), Garris v. 162 Mont. 511 P.2d considered federal case law rule in this long standing jurisdiction cause probable arrest and search warrants em- [My noting: phasis.]
350 ‘“We reach this decision by application stan- following ’
dards: Only a
criminal
probability
conduct need be shown.
“Far
(1971),
more was shown here. See: State v.
157
Troglia,
143;
States, (1969),
Mont.
482 P.2d
v. United
Spinelli
U.S.
”
89 S.Ct.
I fail to see for the Court to cite the any purpose case Spinelli by Court, case, the United States or the Supreme decided Troglia by this Court. have no They to the facts of absolutely application this case, there was a although discussion of probable cause to obtain a warrant, search as there almost is in a search invariably seizure case out the issuance of a search arising warrant. Garris,
Nor does State ex rel.
cited and
supra,
with
quoted
ap
Indeed,
proval
bear on the issues
by majority,
of this case.
case
defendant’s
In
supports
Garris the
position.
obtained a
police
search warrant for a home in which Garris lived. The home was
rented to
actually
someone else and Garris
rented a room.
only
A
detailed
cause affidavit
probable
was
provided
magistrate
showing drug
on inside the house
activity going
but not showing
that Garris had
to do with the
The
anything
then
activity.
police
searched his room and found
This Court ordered the
drugs.
evidence
suppressed,
reason
that
underlying
Garris was
being
not tied in
the affidavit to
the criminal
any
activity
therefore
were not at
police
to search his room
liberty
pursuant
to the search warrant obtained to search the entire house.
Moreover, the language quoted
majority
coming from
case,
States,
Garris
came from a
actually
federal
v. United
Coury
(6th
19709),
Cir.
“The commissioner’s of cause was based on finding probable three affidavits and the statement of Thomas. Special Agent The Thomas statement set forth the specifically circum- underlying stances his supporting affidavit. Amont other it described things, his background of interstate investigator activities and gambling stated that he had conducted an of personally investigation appel- lant, home; surveillance including of his that he knew appellant be a bookmaker and gambler, and knew of his prior conviction activities; for bookmaking also that telephone records company listed calls between appellant known gamblers in other states. addition, In the Bishop affidavit cited telephone records company calls from showing another well-known gambler to appellant’s home. We with the agree district that judge the constitutional re- quirements for issuance of the warrants were satisfied. “We reach this decision by of the application following stand- * *
ards:
only
of
probability
criminal conduct need be shown
It should also be noted that the Thomas affidavit incorporated by reference an attached statement which he had previously written also sworn, it to thereby causing become aof part written state- ment.
The is the foregoing of genesis the quotation of law misapplied this case. In the context of this case the majority would have been accurate if had stated they that “only probability defend- [the ant criminal conduct need be McKenzie’s] shown.” But the majori- ty never came to with this grips crucial issue. Common sensewould dictate that this Otherwise, would have to be the law. the law of probable cause is meaningless.
Indeed, warrant cause for an arrest requirement probable R.C.M.1947, pr 95-603, in this state. is covered statute Section ovi des in relevant part: warrant,
“(a) as the basis of an arrest shall be in A complaint, writing.
“(c)
and the
If it
from the contents of
appears
complaint
witnesses,
examination of the
and other
if
complainant
any,
there is
cause to believe that the
whom the
against
probable
person
a warrant
be
was made has committed an
shall
complaint
offense
for the
of the
against.
issued
court
arrest
person complained
* * *”
added.)
(Emphasis
The
cause either an arrest warrant
purpose
requiring probable
or search warrant would issue has been declared in
Sun v.
Wong
States, (1963),
United
371 U.S.
83 S.Ct.
L.Ed.2d 441:
“* * *
deliberate,
serves to insure that
impartial judgment
[It]
will be
between the citizen and the
officer
judicial
interposed
to assess the
of the information
weight
credibility
police,
* * *”
which the
officer adduces as
cause.
probable
complaining
481, 482,
Nor should the fundamental
requirements
probable
relaxed,
stated in
for as
Sun.
Wong
“* * *
abuse,
use,
and not the
of the
infrequent
history
*58
a
of the fundamental re-
to arrest cautions that
relaxation
power
of
cause would ‘leave
citizens at
law-abiding
quirements
probable
v.
of the officers’ whim or
United
mercy
caprice.’ Brinegar
176,
1302,
States,
160,
371
338
69 S.Ct.
Several probable (a man of ordi- that a reasonable man require of them essentially caution) him that a crime have evidence before nary prudence the defendant been committed and that probably has probably 642, (1878), 7 97 U.S. Emery, committed the crime. In v. Stacey 1035, 642, cited the United States Court Supreme Otto 24 L.Ed. states: the various with several definitions adopted approval “* * * circum- <Areasonable of ground suspicion supported by a in themselves to warrant cautious man sufficiently strong stances the offense with which he is is of guilty the belief that party in * * *’ charged. “* * * of cau- of facts would lead man ordinary a state ‘Such believe, an honest and strong suspicion, or to entertain tion to * * *”97 at 645. U.S. is guilty.’ person of with several definitions has quoted And this Court approval ex rel. You v. other states. In State Wong cause defined by probable 352-53, 353, 347, Court, (1938), 78 P.2d this 106 Mont. District ex with from State approval quoted following language Court 634, Mullen, (1922), 63 Mont. 207 P. stating: rel. Neville v. “* * * defined, but an ‘The terms cause” are variously “probable difference, if definitions will disclose that the any, of the analysis in the substance. “Probable in rather than the mode expression, facts, strong enough is the actual or apparent, cause knowledge he has lawful a reasonable man in the belief that grounds to justify * * * of.” the defendant in the manner complained for prosecuting is, effect, the con- cause a criminal “Probable prosecution] [for and cir- with the existence of facts currence of belief guilt * * * “The the belief.” warranting expres- cumstances reasonably Constitution, cause,' as used in the referring sion ‘probable federal warrants, is a that a to the issuance of means that there probability warrant." has been named in the crime committed by person * * *’” added.) (Emphasis (whether cause it be for In a statement of making probable for the issuance of a criminal and warrant of arrest or complaint warrant) it that the provide search is required application (and basis for the issuance evidentiary complaint underlying warrant), rel v. or search warrant. In State ex Samlin arrest Court, (1921), a case 198 P. involving District Mont. warrant, a search this Court stated: an application “* * * the applicant, A warrant issued conclusion upon which upon judicial stated application without facts conclusion, is not form his own may officer to whom it is addressed or affirmation’ oath supported by cause ‘probable showing *59 354 * * *” added.)
within the
of the
meaning
guaranty.
(Emphasis
59
611,
Mont. at
With the of the case this has never aban- exception present Court doned this requirement favor of a looser standard.
The United States Constitution makes no distinction between search warrants and arrest warrants in terms of establishing prob- (1963), able cause. In Ker v. California, 83 U.S. S.Ct. 10 L.Ed.2d the United States Court held that Supreme under the Fourth Amendment an arrest is a seizure and therefore must with the comply requirement cause. If we did not probable facts require to be contained in the evidentiary application warrants, criminal or search would be complaints magistrate in no to make an position determination of independent probable cause. It is clear that under the United States Constitution the facts must be stated in detail and with rather than conclu- specificity statements. In the sionary case the present testimony at his shows that he did not have the magistrate deposition slightest is, fact, idea of what cause and in probable applied wrong standards: tell
“Q. Did Mr. Hoover informa- you anything give you any that than what tion led to believe—other told us you you already Duncan McKenzie assault here—that committed crime of upon one Lana A. No. The that he and the Harding. testimony gave facts that he told me about led me to believe that there was— A that a “Q. crime had been committed? A. A possibility ” added.) an that assault had been committed. (Emphasis possibility exists, isIt true that if the cause the fact that probable actually determines cause an erroneous stand- judge probable by using ard, will not invalidate the issuance either a criminal complaint and arrest warrant or search warrant. here there is clear But evidence that there that the himself magistrate thought only that an assault had been committed. His discretion possibility An of. the was moved standard. by applying wrong analysis, facts to him shows no more than the that an possibility presented assault was committed and no more de- possibility than.the assault. possible fendant committed *60 in rela- this state contains specific provision of The constitution II, or Article Section things. and seizure of persons tion to search 11, Constitution provides: 1972 Montana their homes
“The shall be secure in persons, papers, people No warrant to- searches and seizures. effects from unreasonable shall issue without search or seize or any person thing any place, be seiz- or the or thing to be searched describing person place cause, ed, oath or affirmation by or without probable supported reduced to writing.” 1889 for word from the former
This was word provision adopted is that a after placed constitution. The difference only period “seizures”, then started with a new sentence. In the word again 178, 410, (1897), 173, this v. 20 Mont. 50 P. Court Nolan Brantly, obtain a warrant held this cause to provision apply probable is no in the of arrest for Since there person. change provisions constitutions, and new I am convinced that in order to ob- old tain a warrant of arrest for a there must be “probable person, cause, affirmation, reduced to In oath supported by writing.” this case neither was satisfied. requirement form), filed in this in affidavit (ostensibly case complaint contains no foundation for the bald evidentiary charge only— conclusion that defendant an on Lana committed assault Harding 21, on 1974. The other written document is the January only ap- warrant, for search Nelson. plication signed by county attorney However, this is not in the form of or sworn statement testimony because it is not in affidavit form. It is a statement merely signed ack- before his own she county attorney secretary whereby by this reason this of his For nowledged signature. genuineness as a testimonial document should not and cannot be considered Nonetheless, that it could for the even support charges. assuming be considered as it did not establish testimony, probable properly cause, testimony either alone or in with conjunction deputy Hoover. (also and arrest warrant
The only testimony complaint warrant) unrecorded used as for the search oral support 356 Hoover. At his he tried to recall
testimony
deputy
deposition
22,
he
1974.
Wolfe
There
testimony
gave magistrate
January
is also the
Wolfe who tried to
deposition testimony magistrate
recall the
Hoover had
three months
testimony
deputy
given
earlier. The
to reconstruct
on such
problems
trying
testimony
matters were
out
defense counsel where he states:
pointed
“Unless the facts
which their
discretion is
upon
magistrate’s]
[the
exercised is reduced to
would ever be
writing reviewing authority
at a loss to determine whether
cause did in fact exist at
probable
the time the warrant was issued. This could
the use of the
destroy
rule
exclusionary
as directed
the United States
Court
Supreme
Mapp
v.
Ohio, (1961),
367
U.S.
81 S.Ct.
[1684]
6
L.Ed.2d
1081;
and Ker v.
California,
(1963),
[374]
U.S.
*61
S.Ct.
There are other of not the dangers reducing testimony writing (and or otherwise it the if not recording dangers apply equally warrant). more so to the issue of a cause for search Over a probable time, memories and at period best one can reconstruct get faulty a version what only piecemeal testimony actually given Moreover, before the in cause. magistrate support probable defined, the issues became more those who sharpened gave and heard in an a effort to free defendant testimony testimony, the because “constable blundered” will seek to dovetail and syn- chronize their in the interest of of course. There testimony, justice is no a defendant can this kind of institutional con- way fight spiracy.
Because of the so-called that abound presumptions regularity acts, defendant, as to official the if he is to contest the actions of the has the unenviable task of those who government, deposing par- in in ticipated giving hearing testimony support prob- able cause. But who swears suppose person gave testimony to one version of what he testified to and the who magistrate heard version of the witness’ testimony. to another swears testimony crucial, Whose word does the issue. that it is pivotal Assume who gave testimony believe—the person court reviewing event, is it fair to In either testimony? who heard magistrate in affidavit form or reduced to testimony writing defendant? would have eliminated recorded on a recorder tape the testimony is the only proper way proceed. this It problem. with been in this state regard
While this has always problem it was not problem cause to file criminal complaint, probable a search warrant until Court’s with to an regard application was, and will still in this case. The law formerly probable decision case) in this that the to the defendant be for its (except application a search warrant must be con- facts cause for constituting probable in of the ap- tained within the four corners affidavit support not, warrant. If will not and cannot they for the search plication considered. in sup- to who testified before magistrate
We must look first and the search cause for the criminal charge of the probable port leaves the impression warrant. The majority opinion deceptively testimony (although was sworn and gave that the county attorney unrecorded) cause: of the probable support
“* * * effect, was, Here, testimony sworn unlike there Gray, to the sheriff in addition county attorney deputy af- cause. thereof established probable and the combination fidavit, * * *” added.) (Emphasis three at all. At his taken deposition is not the case But such *62 arrested, the testified: county attorney defendant was months after that evidence or information know of other “Q. any Do you to knowledge, was own your have been given given could Affidavit than what is contained your of the Peace other Justice none, no. that I know of At Hoover? A. or the testimony Jerry at the— time I didn’t know A. didn’t know of other in- any didn’t know what? I
“Q. You Warrant and for it. at the time of the Search application formation or not know whether what I asked. I asked do That isn’t “Q. you other evidence was to the of the Peace. A. any presented Justice No. None.
“Q. other thán what is contained in Affidavit Nothing your Hoover. testimony by A. given Jerry Right.” here, The “Affidavit” referred to and also referred to the ma- by (but as an “affidavit” never discussed or even jority analyzed, issue) defendant raised this an though more than a nothing witnessed signature acknoledgement by county attorney’s It was not a secretary. sworn document in the form of an affidavit. The Hoover and deposition testimony deputy magistrate Wolfe, (It also confirms the of the testimony county attorney. should be noted here also that the references their testimony an “Affidavit” is in fact the witnessed signature acknowledgement Hoover testified as county attorney’s secretary). Deputy follows:
“Q. But my question was whether or not know of initially you information, other any other than what told the of the you Justice Peace and what was contained in the At- Affidavit County No, that was A. not that I know of.” torney, presented him? Wolfe deposition magistrate confirmed this testimony: Affidavit, “Q. Based of Mr. Hoover and this upon testimony issued a Warrant of Arrest? A. That you is correct.
“Q. And issued search warrant.? A. That is correct. you “Q. Was there other any testimony or information brought attention that was not included in the sworn statement of Mr. your Hoover, Sheriff, or in this Affidavit? Was there Jerry Deputy evidence at other attention that brought your A. time? Not as far as I can remember. in error in con-
Accordingly, majority opinions totally Nelson in addition to cluding county attorney gave testimony what was contained in the “affidavit”. And this is not only manner in which the is rather with the facts. opinion slippery Nelson,
We know the testimony county attorney deposition Wolfe, Hoover, that Hoover’s sheriff magistrate deputy only *63 at- and the written the signed by county testimony application a basis for the cause statement. was used as torney probable However, the states: majority opinion
“* * * he had been at the scene Nelson testified County Attorney and just prior with sheriff and his the afternoon during deputies the warrants issued. At the hearing to his to town to coming get [it so-called hearing is about the appears majority talking original statements were to magistrate where the cause probable given said in to a from question question he response Wolfe] [a from the who was his taking magistrate, question lawyer had the facts: of what he deposition] knowledge “ Well, ‘A. at the think the first without affidavit now—I looking determined, or two is statement as to what I that she paragraph my was have foul but what been victim of missing may play time, nature we didn’t know at and that she resided particular at the teacherage.’”
The fact is that the answer to a question was asked of given defense county counsel when he was attorney by being deposed three months after issuance of the arrest warrant war- and search rant. How this can add at all to statement of anything probable cause for arrest warrants and warrants search is incomprehensible. fact, In the statement itself indicates that all concerned had only (which determined that Lana was not too dif- Harding missing determine) ficult to and that she have been the victim of “may” “foul That one have been the victim of foul does play”. may play not establish cause to arrest a probable misdemeanor person assault and to obtain search warrants to search his his house and truck.
And to leave the that the again majority appears impression Pearsons testified before the as to defendant magistrate having been in the road near the on the parked teacherage evening 1974. Mrs. Pearson was not even involved January going Moreover, with defendant to his truck started. what Dan help get knew of facts to the Pearson was only repeated magistrate Hoover. through lips deputy “it also states that was there that the victim’s majority
watch Was found in of blood officers pool investigating before to town to the warrants.” going get Again, opinion At the time the warrants were obtained the watch had misleading. *64 not been identified as And neither was the belonging anyone. watch found in a of blood. At his his concerning pool deposition to the Hoover previous testimony given only magistrate, deputy testified that a woman’s watch was found on the road and nearby was what to be blood. Wolfe testified as to appeared Magistrate watch and the blood as follows: “* * * went on to relate that in the there Hoover then roadway and it was not sure was a ladies watch that was found broken—I’m found a ladies wrist- they now whether it was broken or not—but watch found a substance that looked They pool liquid there. also blood, whether it like it was and at that time could not they verify or what it was. had taken was blood or if it was human blood They to have ex- of this sent it into the office of pathologist samples aminations run on it.”
I first discuss the written for search warrant. While application conclusion, it is did not discuss the factual basis for its majority fair warrant that believed the for search say they application warrant was insufficient in of itself for either an arrest Otherwise, warrant. I made search would not have presume they statement: following “* * * addition, Hoover Deputy examined county a'ttorney In the in- as to facts he learned during of the justice peace before three, effect, was, Here, in unlike sworn Gray, vestigation. sheriff addition county attorney deputy testimony by established and the combination affidavit, probable thereof ** *” added.) cause. (Emphasis the conclu- certainly An examination application supports itself. that the was not sufficient by sion application the fundamental requirements violates one of application be an are not sufficient. There must evidentiary that conclusions Here, several conclusions were made with for the conclusion. basis foundation: evidentiary no
361 “* * * in the of scuffling evidence office has found sheriff’s teacherage;”
“* * * from being object dragged of an there is evidence teacherage;”
“* * * * * * found;” were stains blood “* * * and out of breath * * *.” nervous highly said defendant appeared an in- make could impartial no that an magistrate There is way of these statements. to the sufficiency conclusion as dependent 1509, 108, Texas, 12 L.Ed.2d 84 S.Ct. v. 378 In U.S. Aguilar v. Giordenello Court quoted United States Supreme 1503 States, (1958), 2 L.Ed.2d U.S. S.Ct. United cause which probable forth the “guiding principles upon setting is based:
“* * * facts lead to the complaint the inferences from the which a neutral and detached instead magistrate be drawn ‘[must] often enter- *65 competitive the officer the judged by engaged being * * * the out crime.’ The complaint, prise ferreting purpose * * * then, to the determine magistrate is to enable appropriate a warrant exists. whether the cause’ required support ‘probable the of the persuasiveness must for himself judge Commissioner to show cause. He probable facts relied on officer by complaining the mere conclu- complaint’s should not without accept question * * added.) *.” sion (Emphasis con- In case for search warrant the the entire present application with factual basis. “mere conclusions” no only underlying tained in the That application. por- And there is another defect yet glaring in near the teacherage defendant placing tions application but on is not based on only hearsay, his stalled pickup January informant, (the was Dan so speak) we cannot conclude Pearson the sheriff’soffice. While interviewed member of by any personally be on to establish help probable it is true that can relied hearsay cause, itself the whereby there be a basis in application must is trustworthy informant can conclude that the hearsay magistrate done, and reliable. If this is not then hearsay evidence cannot Texas, be used to establish probable cause. v. Aguilar supra. The hearsay in this problems case are much worse than those There, which in existed Aguilar. the applying officer talked direct- informant, to the ly but his set forth no basis application from which the could magistrate conclude the informant was trust- and reliable. worthy In situation there is no basis to present conclude who it was that Dan Pearson talked to:
*“* * that a woman’s watch and blood stains were found in the McKenzie, same area as the truck driven Duncan pickup herein- defendant, after referred to as was observed evening 21, 1974, January at 8:00 to 8:30 o’clock approximately P.M. “That the said Defendant appeared nervous and out of highly breath and asked Dan Pearson for assistance to a 1950 get black truck started. Dodge pickup That said defendant called his wife from Dan Pearson’s home.
“That the the Defendant pickup was a 1950 driving black and that Dodge pickup, said Dan Pearson’s upon the said assisting (100) Defendant in starting pickup stalled within one hundred feet of the teacherage.
“That in getting started Defendant headed in pickup an easterly direction the road passing south which leads to his house described above as the Frank place.” Jochem From the above we cannot conclude that Dan Pearson told this Hoover or deputy Jerry other member sheriff’s any office. fact, In it cannot determined this how information was ac- quired. The who county attorney, signed application for search This, warrant did not talk to Dan certainly Pearson. combined awith failure attribute way reliability trustworthiness (to someone), to Dan Pearson’s statement leaves doubt that no written application fatally defective. *66 moreover, that
Assuming application properly presented evidence of defendant’s on January near presence teacherage 21, it does not allow a conclusion he assaulted reasonably that Lana or Harding committed other crime. law en- Obviously, to him to determine wanted talk would have forcement officers the in- Assuming of her whereabouts. if he any knowledge had forcefully was ab- Lana Harding ferences in the that application when this was is no stated there time teacherage, ducted from 21, was it after on January Was it before 8:00 or 8:30 p.m. done. the following but before sunrise January 8:00 or 8:30 p.m. tell Needless say, This we cannot from the application. morning. had caused her conclude that defendant there was no basis to he have had may There disappearance. possibility Therefore, the defendant to do with her something disappearance. That he should have been ar- should have been under suspicion. not. absolutely rested— war-
There reason for search is another yet why application considered, alone, be or in with rant should not either conjunction Hoover, oral, as prob- unrecorded Sheriff deputy testimony warrant) (or applica- able cause for an arrest warrant search —the reads: tion is a sworn to the jurant application document. H. Nelson_ “s/David H. “David Nelson “Pondera Attorney County undersigned, “On 22nd before me the this day January Montana, appeared, Public for the State of personally Notary Nelson, known to me David H. Pondera County Attorney to the within instrument whose name subscribed person to me that executed same. acknowledged WHEREOF, set and af- “IN have hereunto hand my WITNESS I first above written. day fixed Notarial Seal year *67 It takes no to conclude that the did legal giant county attorney a sworn statement. He an sign merely signed unsworn state- ment and his that he secretary acknowledged did state- sign ment. An is acknowledgement defined as follows: official,
“Formal declaration before authorized who by person instrument, executed is that is his free act and deed. (Citing The certificate of the authority.) officer on such instrument that it has been so acknowledged. Black’s Law Dic (Citing authority.)”. Edition, 4th tionary, 39. p. hand,
theOn other an affidavit is defined as: facts, “As written or declaration or statement of printed made and confirmed the oath voluntarily, or affirmation party it, taken making before an officer ad- having authority to oath. minister such A or (Citing authority.) statement declaration reduced to sworn to affirmed before officer writing, some who has authority administer an oath or affirmation. (Citing Edition, Black’s Law 4th authority).” Dictionary, 39. p.
The form used this state at bottom of the normally docu- ment, affidavit, to constitute an is as follows:
It must be remembered that defendant contended that even the was complaint form, deficient because in affidavit although never did magistrate swear officially county Nelson to attorney Accordingly, he before signed complaint. to the truth swear it stated: where leaves the false impression opinion majority Wolfe of the Peace shows testimony “A summary Justice he customarily on the motion suppress] the hearing testified [at in the recall swearing county he did not though swears all witnesses he him sworn.” considered attorney, the county attorney left the statement
The impression (l)The he testimony with relation to three matters: oral sworn *68 (We and search warrant. of the arrest warrant support in gave Hoover, Wolfe, and seen where already magistrate have deputy in he offered nothing sup- Nelson himself testified attorney county statements.) (2)The criminal complaint the cause probable port with misde- attorney the signed by county charging defendant And, (3) search warrant signed assault. the for meanor application in affidavit form. but which was not county attorney, Wolfe when he testified unequivocal testimony magistrate witnesses, to in swearing swears in was in relation he customarily a criminal would be allowed to com- sign witnesses before they was: His testimony plaint. I he to he on that take that swore his
“When his puts signature as true and correct. The individual being only my complaint was Hoover.” (Emphasis recollection that was sworn in Mr. orally added.) therefore, did not that testify
It is clear that Wolfe magistrate to the contents of the for application Nelson swore county attorney. Indeed, had signed search warrant. the county attorney already this document in front his secretary. to be require testimony
Section 95-603 does explicitly could be testimony taken the magistrate, by implication filed then notary, the form of an affidavit before any in given file a cause to as of or as part probable with the magistrate have all it be would Obviously, preferable criminal complaint. before the magistrate. taken under oath sworn statements Nonetheless, and that is that requirement, bottom there is one rock taken, statement, And fact a sworn statement. whereever in
that is here. precisely While problem conceivably at- county (who could a sworn torney sign statement before his secretary a notary), here there was no sworn all. statement at Accordingly, for search warrant application could not be as considered in whole in fulfilling or part requirements cause. Its probable form it from as prevented being considered such.
I next discuss the oral testimony allegedly given by sheriff deputy Hoover magistrate Wolfe before the issuance of the arrest war- rant and search In warrant. so I assume doing argument pur- that poses, for search application warrant at- signed by county Nelson, was in torney form and therefore could be proper con- sidered cause part probable In this context application. the question becomes whether the document signed by county when attorney, considered with the conjunction unrecorded Hoover, testimony of sheriff deputy constitutes cause to probable obtain an arrest warrant and search warrant.
The oral testimony given allegedly by deputy Hoover Wolfe did to fill magistrate in some holes help signed ap- warrant, holes, for search but were plication they inconsequential and under no circumstances was there cause to conclude probable had defendant assaulted Lana Harding had committed any other crime her. we must start with upon Again, *69 reconstruction Hoover, of this the of testimony through depositions deputy Nelson, Wolfe and magistrate some three months county attorney after the arrest. the revolved
Essentially, testimony around those statements that were “mere conclusions” in the county attorney’s application: evidence of the in woman’s red shoe outside scuffling teacherage; the trail teacherage; drag outside the blood stains teacherage; road; and a woman’s watch the defendant to Dan Pear- going (and son’s home out of breath and him to his truck call- asking push wife); his defendant’s ing truck on the pickup being parked road near the There was no as to teacherage. testimony objects why (Lana clothes, to be seized and sought defendant’s Harding’s clothes) (I were either his house in his probably truck. pickup later, cause bears on probable as it directly this will discuss to. topic warrant.) a search obtain told to what he magistrate. Hoover as testimony of crucial follows:
Wolfe is as can, us, testimony your best the substance “Q. you Give to the sworn your testimony of the Justice Justice Peace— a phone about the receiving I him sheriff Peace. A. explained there, and out what and myself driving call and about the Sheriff teacherage. we had observed inside the Well, I A. observed us what observed.
“Q. you Give again throw pushed and the rugs on the floor the bedroom eyeglasses other, the scuff marks on floor. each together against up A. location of The exact “Q. Where were these throw rugs? them. A. were in kitch- What room were in.?
“Q. they They Yes. en. being And the tennis shoe out-
“Q. ahead now. A. about Go trail, on the road and and the blood drag side on the porch the watch. That’s about it. the story- the Peace
“Q. Did relate to the you Justice Yes, I I I did. really Mr. A. I did. believe you told Pearson? did. couldn’t unless I say yes, I— tell the Peace as it related Mr.
“Q. What did you Justice Pearson the subject Pearson’s A. About Mr. story you? giving and watch on the blood in the location of push approximate road there. Dan Pear- A.
“Q. subject telling else? And about Anything of the vehicle living, maybe description son where he was what the subject and I also believe that the subject driving, looked like. used the telephone? that Mr. McKenzie
“Q. How about the fact Yes, I A. did. I Peace about that? tell the Did you Justice about him and also subject using telephone told about the him to Dan had stated that he stating nervous and being somewhat *70 Pearson that he had ran and that he ways, talked long very rapid- and seemed ly nervous.” awfully
The only other relevant here is at- testimony that the county torney asked to question him as whether had he described defend- ant’s to the clothing magistrate:
“Q. When your made you appearance before Wolfe Judge sworn, were do recall you whether or not testified as to you the ap- of Duncan pearance McKenzie on Monday evening physical —the Yes, appearance to clothes he was I wearing? A. believe that! did.
“Q. What did this information A. you get from? From Dan Pearson. Do
“Q. recall what articles described you you Wolfe? Judge Well, A. I could— “Q. I mean without I referring your notes. A. have would ) notes, Dave,
to refer my make it really positive.” county attorney also he deposed, although díá not cause, at the held to testify hearing determine the initial probable he did he testify as to what had heard at the hearing:
“Q. You heard both Mr. Hoover and the of the Peace Justice Yes, their here give depositions today. A. I did. Is there
“Q. that different could relate to us that anything you have or might been left out misunderstood misstated here? A-. doI recall that the did describe the that Deputy clothing Mr. McKenzie was on that to the wearing night Justice Peace, of the Peace although didn’t recall that in his Justice deposition.
“Q. That that Mr. clothing wearing McKenzie was on the of the 21st? A. night Yes.
“Q. And this information would have come from— A. Deputy Sheriff Hoover.
“Q. Dan Pearson. A. Yes. Through “Q. It wasn’t knew himself? A. No. something Deputy Or that “Q. knew you yourself? A. No.” *71 Magistrate Wolfe testified to both Hoover and contrary deputy Nelson of a county attorney of defend- question description ant’s to clothing being him Hoover: given through deputy items,
“Q. Now with reference to those the brown sleeve long shirt, boots, and the overshoe what did jeans, rubber Mr. Hoover tell as to you wanted these What he why they things? did tell that led to believe that these you you items were particular related to this case? “* * *
“Q. What about the shirt and and jeans rubber overshoe Well, those, boots? A. I don’t know that they mentioned to tell the truth. you them,
“Q. You inquire didn’t of them as to wanted why they recall, can recall? you A. Not that I no.” The question that arises naturally from this is who testimony is (even the truth and if is telling one how do deliberately lying) resolve the you factual Do dispute? believe the sheriff you deputy and the county or do attorney believe the you magistrate? Certain- later, three ly, months when defense counsel was in on zeroing what sheriff and happened, deputy county attorney suddenly knew had their interests they to protect somehow had to they —that save the arrest warrants and search warrants. The reason this only problem cropped up because the magistrate allowed the oral nonrecorded did not testimony follow the law. —and the “evidence
Concerning in the scuffling” teacherage, magistrate testified that Hoover told him he found scuff marks on floor, floor, of woman’s on the pair glasses bedroom and two mats” were “out of He “drop place”. confirmed that Hoover told him woman’s tennis found shoe was outside the He teacherage. stated that Hoover told him there were marks drag from leading field, around the corner of the teacherage an through open under fence, then into a barrow to pit, the road near where a up woman’s watch was found and a substance “that looked like it was blood”.
In direct response questions he why ordered defendant ar- it vehicle had been stalled “in rested he that was because his replied road and where the area of those marks came drag up where to be was located” and that “all this substance that blood appeared to Dan Pearson’s testimony led to Duncan McKenzie coming started, getting his vehicle requesting help of residence place ain state of excite- that he in Dan Pearson’s residence appeared ment”. total
Thus we a situation where the magistrate placed have an arrest warrant and based his entire decision issue credence (and warrant) Hoover as testimony on the hearsay deputy search There is not told Hoover. deputy to what Dan Pearson allegedly Pearson, either or Wolfe knew hint in the record that Hoover one *72 fact, In Wolfe to be reliable person. otherwise considered him or event, the ultimate any Pearson. In testified that he did not know reached when he decided to Wolfe conclusion which magistrate an assault had been was that “a that issue the warrants possibility committed”. to the presented fair of the “facts” reading under
Clearly, warrant, or con- the for search in either in application magistrate Hoover, there of testimony deputy with unrecorded junction (or to issue the the arrest warrant was no cause to issue probable warrant). search what I warrant itself. Much of
I now reach the issue of the search situa- to the search warrant have discussed already applied equally However, tion, there are three I make reference. passing and will warrants that do not bear on prob- bear on search issues that key arrest. The first issue concerns the issue a warrant of able cause to law which required from previous this Court drastic departure be contain- issuance of a search warrant must for that the grounds of sworn search four corners application ed within warrant. That the the search support or affidavits in warrant does not seem the face of our constitution flies in opinion majority concerns the crucial inquiry at all. The second issue to move them a search to issue whether or not focal when considering point issue, it although even touch on this did not majority warrant. The is of the essence of the requirement to obtain very probable'cause a search warrant. The third issue concerns conversion search warrant in issued this case into a general search exploratory warrant, limited only by of those who conducted imagination the search.
To some idea of the get this Court had made complete change in case, the law of search and seizure in this refuses yet it, it is acknowledge necessary to the cases put they have cited in their context. proper again quote I of the language majority opinion: “* ** Here, there is an affidavit signed by county attorney ''* * addition,
and made a of both part warrants. In the county at- torney examined Hoover Deputy before the justice peace Here, to the facts he learned during investigation. unlike Gray, was, effect, there sworn testimony by county attorney and affidavit, sheriff deputy in addition to the and the combination added.) established probable cause.” (Emphasis thereof There is no then question this Court held that sworn unrecorded to a testimony addition “affidavit” is signed suffici- arrest, ent to establish probable cause not for warrant only but also for search warrant. soBy the Court doing, radically changed law in this state. The cases cited and misapplied by the must majority be placed in the context of the Montana constitution provisions relating (1970), search and seizures. At the time Petition Gray, *73 decided, Mont. 473 P.2d Montana was still under its-old operating 1889 constitution. The search and seizure III, 7, provision, Article Section provided: “The shall be secure in their homes people persons, papers, effects, seizures, from unreasonable searches and and no warrant to search or or place seize shall issue any person thing without searched, first to be or or describing place person thing seized, cause, be nor without oath or affir- probable supported by mation, added.) reduced to writing.” (Emphasis involved an
Gray this constitutional interpretation provision sworn, affidavit was used buttress an where recorded testimony 1967 on a warrant. was arrested in Gray May a search seeking county attorney days deputy and two later charge burglary and Affidavit for Search Warrant”. That docu- filed “Complaint “has county attorney that the deputy ment included statement that certain stolen articles actual and does believe” knowledge affidavit, a at In addition to this were defendant’s residence. in county attorney was taken from deputy recorded deposition war- search issued the judge. of the district judge presence rant. the district stated judge on the motion to suppress
At the hearing the affidavit and deposition warrants because of he issued the from he had received chambers because other information and information as well as his personal knowledge various officers war- the search this Court held that On Gray. appeal concerning to the and void”. This Court looked rant was issued “illegally af- facts cir- it contained sufficient to determine if alone fidavit of the search cause for issuance cumstances to establish probable stated: warrant. This Court on the of the search warrant upheld
“Nor can the issuance affidavit, in the basis of information not contained affidavit issuance the exclusive support being required provide itself “* * * the search warrant.
“* * * a search warrant of an affidavit sufficiency supporting the affidavit itself and within the four corners of must be found that took be made to oral conversations place reference npt may * * 519, added.) 155 Mont. before the commissioner (Emphasis 537. 473 P.2d law today, it still be the assuming under Gray, Clearly, consider would not have been allowed to Wolfe magistrate assum- county attorney, signed by but the anything application that it fact was an “affidavit”. ing state, in this new constitution went into effect In word, although one did not change in the constitution language *74 II, 11, at the end of “seizures”. period Article Section placed new constitution provides: “The shall be secure in people their homes and persons, papers, effects from unreasonable searches and seizures. No warrant search or seize any place, any or shall issue person thing without to be searched or the or seiz- describing place person thing ed, cause, or without probable by oath or affirmation supported added.) reduced to (Emphasis writing.”
Since the constitutional
did not
it is
provision
change,
only
reasonable to assume that
Gray continued
be the law. And that
is
what this
precisely
Court held in State ex re. Townsend v.
(1975),
Court,
There,
District
168 Mont.
“We now consider whether a may be cured by deficient affidavit responses to oral made inquiry magistrate at the time the from application submitted. Relevant to this line of is Article inquiry II, Section 1972 Montana Constitution which provides perti- nent part:
“‘* * * No warrant to search or seize or place, any person thing shall issue without to be searched or the describing place cause, seized, without supported to be or probable
person thing reduced to writing.’ oath or affirmation *75 of a are the supporting with the requirement writing “Consistent R.C.M.1947, 95-703, the defining statutory section provisions, R.C.M.1947, 95-704, the listing ‘search warrant’ and section term a issue. which search warrant may grounds upon “Here, the sworn it contention that officer’s is respondents’ the to at the time of the for magistrate application the testimony an deficient on its be used to may supplement application warrant to be Montana law. face. We find this conclusion unsupported 510, was in Petition 155 Mont. Gray, considered question This 519, 520, 532, is- ruled that the P.2d 537. There this Court 473 on the basis of infor- of a warrant cannot be upheld suance search affidavit, the the affidavit itself providing mation not contained in so, Montana for such issuance. In doing the ‘exclusive support' rule, ‘four set to the so-called corners’ adhering those states joined Gray: out in
* * war- a search of the affidavit supporting sufficiency affidavit itself be found within the four corners rant must ** *. We oral conversations see and not be made to references may particularly, result in the instant case no reason to reach a contrary unwritten, unsworn, here, un- and were where as conversations signed.’ cannot be to oral declarations magistrate
“Contemporaneous in establish an attempt used bolster insufficient affidavit sworn, cause, re- are unless such declarations signed, probable (Emphasis made duced to and writing, part affidavit.” 362, 193, added.) Townsend, 196. 543 P.2d 1968 Mont. holding this Court in affirmed Townsend Undoubtedly, was to do so in There is no that it question compelled light Gray. Indeed, as recently our and statutory constitutional provisions. (1976), 545 P.2d v. Mont. in State Thompson, Townsend, Gray requirements this Court affirmed In ground. Thompson the case turned on different although warrant to an search prepared county attorney application search residence aas result of information received Thompson’s officers, informant, from an informant. Two police went county attorney to the home to judge’s the search procure warrant. The judge considered the examined one of- application, oath, ficer the informant under and issued the warrant. This sworn, Court the search upheld only warrant but because the writ- ten for the search application warrant at- signed by county torney held to be sufficient to establish “wholly prob- itself able cause”. In so this Court holding, its rul- again approved prior ing Townsend that “the affidavits for search warrant cannot be oral supplemented by statements to the to establish magistrate” cause. probable
Gray, Townsend and leave no doubt that Thompson probable cause for the issuance of the search warrant must be contained sworn, within the four corners of written documents presented magistrate establish cause. The probable here used majority *76 two pages apparently trying Gray and distinguish Townsend— but in so failed to doing recognize the of its pivotal point decision: The Court allowed the signed application by county attorney (the affidavit) Nelson so-called to be the supplemented sworn by (and testimony nonrecorded Hoover deputy the nonexisting of the testimony county to establish attorney) probable cause. That is Townsend, what precisely Gray and both to the four adhering doctrine, corners prohibited. obvious,
In addition to the Court’s failure to the there recognize are several factual errors contained in its to dis- apparent attempt and tinguish Gray Townsend. Townsend,
As to the “In majority stated: Townsend nothing Here, reduced to there is an writing. the signed by county affidavit * * *” attorney and made of both warrants. part add- (Emphasis ed.) is This false. patently The clear in is impression Townsend that there was an in submitted to the but writing, magistrate affidavit cause, itself it did not by establish and therefore the oral probable evidence taken the magistrate could not allowed to supple- ment the insufficient affidavit. The held Court that the combina- cause. more- Assuming
tion thereof could not establish probable Townsend, over, it does not detract writing that there was no a search the therein any application from Court’s holding to, that the probable and sworn warrant must be in writing corners of the writing within the four cause must be contained itself.
As stated: majority Gray, in addition to the so-called affidavit] “In addition [apparently justice Hoover before Deputy examined county attorney Here, during investigation. as to facts he learned peace was, effect, testimony by county sworn unlike there Gray, and the affidavit, in addition to the attorney deputy sheriff * * *” (Emphasis cause. established probable combination thereof added.) to an affidavit filed In in addition actual Gray,
What nonsense. county attorney gave county attorney, deputy deputy of the recorded, judge part before the district testimony sworn that the four This Court held expressly cause application. probable of the recorded consideration doctrine prohibited any corners county attorney. testimony deputy sworn here, so relies factor since majority There is another yet It would that in “affidavit”. seem attorney’s on the heavily county event, of oral to allow combination such if this Court going establish to an “affidavit” to in addition testimony nonrecorded event, warrant, that in such to obtain search cause probable Here, is un- “affidavit”. proof “affidavit” should in fact be an before his own attorney simply appeared that the equivocal county the document her that he signed secretary acknowledged facts, (See involved. statement of supra.) *77 the to muddy in their attempt In addition to the foregoing, to facts of the to the of and Townsend Gray, waters as application case, factual errors. I made several other this the has majority however, have, elsewhere. discussed them sufficiently doubt that defendant’s leave no Townsend and Gray, Thompson neither This Court have been granted. motion to should suppress defendant, had the cases of to these to the benefit courage apply nor, hand, course, on the to other overrule them. Of expressly by the door under of and keeping open guise Gray distinguishing Townsend, this Court has served notice on defendants potential that if are with less they charged may crime gruesome they get of cases. benefit these to either these By failing honestly apply cases of to the benefit defendant or to cases by failing overrule these this Court has a cruel on the hoax defendant. perpetrated
The is manifest its failure dishonesty majority opinion by two cover factors which are absolutely indispensable finding cause probable to issue search warrant that the items —namely, are in sought fact seizable virtue of connected being with some criminal and that the items be activity, can found at to be place (at searched. Here the object of the search least was to ostensibly) find defendant’s Lana clothing Harding’s There clothing. not one reference in the that was the opinion clothing object Moreover, search. there is one not reference in the as to opinion what evidence was used to determine that the clothing prob- in the ably defendant’s home or in his truck. The reason is pickup — obvious these discuss crucial factors would that admit there nowas cause. probable
The for warrant confines search application object However, that search to looking clothing. application does state one fact that would lead one to conclude was either in defendant’s home or in his clothing sought pickup (Neither truck. did the oral Hoover cover this testimony deputy point.) for search warrant stated in the application specifically prayer: “* * * That the object of the search would be to seize the instru- HARDING, ments of the assault of the said LANA but including, to, not limited the evidence the said whereabouts of LANA HARDING, shirt, to-wit: brown sleeve and rubber long jeans Defendant; boots, coat, overshoe worn black purple sweater, woman’s blouse flower design, with woman’s slacks pink shoe, and woman’s red and white con- striped tennis other traband articles.” *78 which set out the clothing
And the warrant specifically search that found: the search and as to the magistrate was the of object that the there is cause to believe “I am satisfied that probable described real property is in or the said upon described property testi- and further the sworn upon and 1950 black Dodge pickup Sheriff, Hoover, taken before this Jerry judge;” of mony Deputy deficient, from it is devoid of evidence The record is not only in that the was either clothing which the could conclude magistrate truck. the house or the pickup with facts it is not lack of candor in dealing
Given total the fundamental that the has overlooked then surprising majority and obtain an arrest warrant distinction between cause to probable war- a warrant. To an arrest cause to issue search justify probable relate to the to the must magistrate rant evidence presented hand, a justify be arrested. On the other to to guilt person warrant, to the must magistrate search the evidence presented of the items The sought. to the the location sought relate items Article to the United States Constitution Fourth Amendment II, that the 1972 Constitution both provide Section Montana cause”. warrant shall issue unless there is “probable no a then becomes— The issue of cause for search warrant probable that there is as what? Does it mean because prob- cause to probable facto able cause to a for a crime that there is ipso arrest person Does it search his and other belongings? cause to home probable cause that if has been arrested on mean a already probable person to home or his facto into a search his right that arrest converts ipso so. cause in other this cannot be Probable Surely, belongings? there is sufficient reason context of search warrant means that evidentiary items. The search particular place particular satisfied, end. If there be directed toward that foundation must is that is no basis to a search warrant. It simple. issue war- arrest between cause to issue an distinctions probable warrant, dis- have been rant and cause issue search probable cussed as follows: requirement is the of prob-
“Basic search warrant protections
379. able cause. Its function substantial guarantee probability that invasions involved the search will be dis- justified by covery items. Two to the offending conclusions issu- necessary ance the warrant must substantial evidence: supported that the items are seizable virtue sought connect- being fact ed with criminal items will be in the activity, found to be searched. of arrest arises place By comparison, only right *79 when a is crime committed or in the an attempted of presence or the arresting officer when officer has ‘reasonable to grounds a believe’—sometimes stated cause to believe’—that ‘probable has been committed the be felony to arrested. person Although it that would the conclusions which either arrest or appear justify a the issuance of search warrant must be evidence of supported by the same of it the is clear that conclusions them- degree probity, are selves not identical. arrest,
“In the case of the conclusion concerns the of the ar- guilt restee, warrants, in of whereas the case search the conclusions togo the connection items with crime and to their sought present Comment, 664, (1961). location.” 28 U.Chi.L.Rev. 687 (Emphasis added.) article,
The comment in following the-same was made concern- However, cause to search to ing probable incident arrest. it applies as well to equally search warrants in relation to the probability that the items at sought are the to be searched: place
“What remains to be cause supported by probable in case search to incident arrest is the conclusion that the fruits or instru Here, mentalities will be found in the sought of arrest. it must place be admitted that however may reliable be the inferences from the commission of crime to conclusion that certain of fruits types involved, or instrumentalities were inference from the latter to the conclusion that those proposition items will be found at the Indeed, of arrest is far place from compelling. that probability fruits will instrumentalities be found at the of arrest place only than slightly greater that will be those items found probability Comment, over which the arrestee has control.” place U.Chi. 664, L.Rev. 688.
380 as to the probability
In this case no evidence present Moreover, truck. at the or in the home clothing being pickup that it her clothing would be highly improbable logically speaking, that a defendant would would be probability would there. to in a least likely have them or them disposed place destroyed the defendant. implicate arrest, to but reasoning incident which
In case search involving warrant, that search the court obtaining applies equally D.C., (1943), 53 F.Supp. United States v. Antonelli Fireworks Co. 870, of the seizure held “the to search and the right validity to arrest on the reasonable cause are not but right dependent subject officer has to believe that articles arresting at so is the validity seizure of arrest.” And are concealed place cause warrant the evidence of probable search judged are at the that the objects sought place stated the magistrate be searched. stated to obtain a search warrant was
The test for cause probable 172, (1967), 64 Cal.Rptr. v. Wilson People Cal.App.2d L.Ed.2d 418: cert. den. 391 U.S. 88 S.Ct.
“* * * whether or could form a reasonable magistrate *80 at the to be belief that the articles were sought present place searched,”
Moreover, are to there limitations the extent evidentiary be used to this In requirement. which evidence can hearsay satisfy 230, (1969), 321, v. 251 A.2d cert. den. Grimm State 6 Md.App. 1001, 90 the court held that U.S. S.Ct. 25 L.Ed.2d was set of where the affidavit based on it must out some hearsay, (and the circumstances which the affiant ultimately underlying by the could conclude that the infor hearsay magistrate) reasonably at to the items were the mation was reliable sought place case, absolutely In the there was no evidence present searched. in defendant’s home to show that the either provided clothing Moreover, his the or in truck. clothing descriptions provid pickup ed the are based on uncorroborated entirely hearsay. magistrate the tell from a of the where reading application
One cannot Indeed, obtained the the attorney clothing descriptions. county of the does not mention either Lana body Harding’s application or defendant’s the clothing clothing. Only seeking prayer move the made of either the de- court’s discretion is mention fendant’s or Lana For some reason the Harding’s clothing. strange is as an “instrument of the assault”. The clear clothing designated a is that a implication from ás whole reading application member of the sheriff’s office provided clothing description But one county attorney. cannot tell where the sheriff’s office obtained the information. (as
The unrecorded of Hoover later testimony deputy developed his is that through deposition) he obtained defendant’s clothing from Dan description Pearson. But not one mention is made as to Moreover, Dan Pearson’s as a source of reliability information. is testimony Wolfe that he did recall magistrate Hoover giv- a ing him of the worn description clothing defendant. it Although from the appears Wolfe that deposition magistrate Hoover deputy provided him with description clothing worn by Lana is there not one mention of the Harding, person information, from whom persons Hoover obtained' this deputy nor of the reliability of this information. There can be no question that clothing descriptions provided were based on magistrate uncorroborated hearsay.
The basic interest protected Fourth Amendment is (in “right Only cause” privacy”. “probable addition to the statutes) formalities compelled by constitutions or can amake search “reasonable” and thereby governmental justify intrusion II, into this Montana has right. similar guarantees Article Sec- addition, tion 11 of its 1972 constitution. In separate “right II, Article privacy” recognized by Section which provides: “The of individual right is essential privacy well-being free and shall society not be infringed without the showing state interest.” compelling
In this case we cannot the search of defendant’s home separate *81 from the search of the home that also to his wife and chil- belonged (As of the sheriff testified
dren. too have the They “right privacy”. wife “went quite the search —defendant’s when he commenced of of Montana’s privacy provision hysterical”.) Clearly, right a search warrant is an additional reason before why, Constitution obtained, must, be to that is at minimum show required State (items conduct) to criminal at there are seizable items relating to this has failed to be searched. Absent State place showing, show a state interest”. “compelling to the United States Constitution
The Fourth Amendment II, Constitution recognize Article Section Montana free an be two The first that of individual to rights. right distinct (arrests) of his The second from “unreasonable” seizures person. to free from “unreasonable” is that of an individual be right home, at his in some and seizures his or of belongings searches case, defend to arrest in this other cause Assuming probable place. (at (a least ant’s to be of would be forfeited type free right privacy) free But his to be from unreasonable temporarily). right second vir be searches and seizures would not forfeited automatically this his the facts of case tue of his forfeiture of first Under right. until the State showed defendant’s to remained intact right privacy has cause the defendant forfeited probable magistrate why could issue for legally this Until such time no search warrant right. invade his that the way right his home or truck. pickup only could sufficient by making defendant’s be shown privacy be were at the searched. place there seizable items showing it is not the defendant’s just In the case the home particularly, —it is that deserves the right privacy right privacy protection unless these mini of his This cannot family. right guaranteed . — are observed inviolate mum cause requirements probable con- attacks nature and extent of search Defendant next with search armed his Once deputies. ducted sheriff defendant’s sheriff search authorizing warrant (ostensibly Lana Harding’s clothes and and truck for defendant’s home clothes) to defendant’s home and his drove deputies the sheriff which, under circum- operation commenced dragnet type
383 stances, a I have must be classified as search. general exploratory already stated the nature of this search and will not repeat general facts that this included de- except emphasize impounding contents, fendant’s truck and all its the seizure of the clothing time, defendant was at the of a actually wearing the seizure lock of hair, defendant’s head the sheriff himself just measure good hairs a “plucked” pubic from defendant. When one conducts search so the evidence cannot general neatly tucked scope, admissible, into where some of it is away categories, some it is not. The evidence should have been suppressed. (1927), 192, 74,
In v. Marron United States 275 U.S. 48 72 S.Ct. 231, L.Ed. the United States Court outlawed ex Supreme general searches: ploratory
“The requirement that warrants shall particularly describe the
to be seized
things
makes general search warrants under them im-
possible
prevents the seizure
one
a
under
thing
warrant
taken,
As
describing another.
to what is to be
is left to
nothing
** *”
discretion of the officer
the warrant.
executing
(Emphasis
added.)
196,
275 U.S.
The court has made certain exceptions items not seizing specif- — listed on the ically search warrant but none that would apply (1967), 294, here. The case of Warden v. Hayden 387 U.S. 87 S.Ct. 1642, 782, 18 L.Ed.2d did make the situation little confusing. Prior to Warden v. Hayden, it had been held that contra- already band, or the “fruits” or “instrumentalities” of a crime could be seized, arrest, either while to a searching pursuant lawful and pre- sumably to searching search pursuant warrant. Warden v. took Hayden another and held that “mere step evidence” could also be seized under the same circumstances. The only requirement is that there be apparently probable cause to believe that the “mere evidence” has some connection to criminal behavior.
However, the United States Court has not Supreme done away with the prohibition against searches. In general exploratory Stan (1969), 557, 1243, ley v. 394 Georgia U.S. 89 S.Ct. 22 L.Ed.2d 542, Marron, the court relied on as supra, prohibiting ex- general
384 In also from United Stanley quoted searches. the court ploratory (1950), 339 U.S. L.Ed. v. Rabinowitz S.Ct. States ** * 653, for searches cannot be the principle “exploratory officers, with or a warrant.” The court con undertaken without that the record bald violation of that cluded in Stanley “presents was, I rule”. As bald cannot conceive of Stanley, constitutional in this The facts for them speak balder situation than exists case. selves. moreover, this rule maintain
There are reasons to compelling Amendment searches if Fourth exploratory against general II, (and Article Section similar state constitutional provisions, *83 Constitution) Those meaning. 1972 are to have any Montana 307, (1968), 23 N.Y.2d reasons were set forth in v. Baker People 232, 745, 244 N.E.2d where the court specifically 296 N.Y.S.2d a was too broad. In Baker on to hold that a search relied Marrón and a search warrant the of executing detective in process serving knife, a a sweater which was similar came and seized upon for as worn the attacker. The the the victim by description given by was and of sweater not authorized court held that the seizure the Marron, and distinguishing the evidence. In relying suppressed the Warden v. stated: Hayden, supra, court that, returned, he had the officer question “There can be no sweater, since, a seize the have obtained warrant com- could him, personal with the had his given bined information victim] [the observations, would author- in have lawfully apartment, while the * ** the a warrant for the seizure of the sweater. ized issuance of overruling Court’s
“The that People Supreme argue is' here. This seizure of the jacket evidence’ rule supports ‘mere for the and need strength it reinforces not so. If anything, holding. Marrón warrant, at was a and no point did search not involve
“Hayden Moreover, was cited with Marron the court. by Marron discussed York, 18 v. 388 U.S. S.Ct. in New Berger approval * * *. in Hayden Also decided after Hayden L.Ed.2d itsof con- that there the basis it clear quite court’s- makes opinion that, was since elusion the situation exigencies justified in the house a warrant in search of a sus- police entering without and, existed, armed felon as cause there was no pected probable reason to distinguish between an intrusion to secure mere evidence fruits, instrumentalities, contraband, from distinguished * ** which clearly authorized. “Here, however, the authorization for the intrusion was very narrow and used circumspect the commis- weapon during —for — sion of were crime there no circumstances exigent requir- an immediate ing To response. seizure unauthorized permit items in the course search would eliminate the constitu- lawful tional requirement and would ‘particularity’ open door for searches abhorred general since days colonial banned both the Federal and State Constitutions. The to search right for and seize one item does not permit inference that there is probable cause for other items. More importantly, now seizure ‘mere authorized, evidence’ is courts will have to be more diligent that the search warrant does assuring into degenerate subter- evidence, fuge general searches exploratory thereby destroy- for houses, ing people’s security their persons, papers, ef- fects, added.) Fourth Amendment.” guaranteed (Emphasis
How true that is when to the applied case. Even present assuming cause to for the probable search of defendant clothing and Lana Harding, the were police authorized to seize that only But clothing. this, more than *84 the nature of the search conducted in this case with proves certainty that the sheriff was conducting general dragnet If the operation. United States and Montana Constitutions do not this kind of prohibit no at all. activity, they prohibit activity
The testimony Wolfe and sheriff magistrate Hammermeister is to revealing as scope authority they believe was conferred by the issuance of the search warrant. Wolfe was Magistrate examined at his as deposition to the he conferred the sheriff and authority he testified: “I just authorized the search of one I pickup [the truck]. don’t believe I authorized the seizure of one.” And neither did he (nor he) authorize could the seizure of almost all the items listed on to seized the search the sheriff’s return been having pursuant testified: inquiry, warrant. In to this line response magistrate “No; was Search Warrant.” I authorized what listed on that just seized, addition to the to clothing applica-
In particular “and asked for and the search warrant contained phrase: tion This was seized both by magis- other contraband”. any upon trate and sheriff as conduct authority general, explora- search. Wolfe testified: tory Magistrate did mean? What “Q. What does other articles’ ‘any contraband A. I surmised it would be it mean to when this? you you signed items that— felt was wanted to take? A. That the Sheriff
“Q. That Sheriff this and also specific to his pertinent investigation pertinent search. the Warrant were
“Q. upon you me that based you telling Are wanted to take that he him take he giving permission anything is to this case? A. That correct.” be related thought might he had to and thought authority It is clear that Wolfe magistrate search virtue of did authorize a exploratory he thought general other contraband”. “any phrase at his deposition of sheriff Hammermeister testimony While examined concerning equally disheartening. being boots, exchange place: seizure of took following A. Warrant included those boots? It didn’t “Q. The Search but it was included. them I felt specify A. Can I reason to feel it included the boots? “Q. What gave you Warrant? read Search A. Warrant
“Q. deponent.) (Deponent Yes. Search (Handing same.) Well, thing I it fit in here. For one it felt would examining and it named some items was search evidence specifically said, other contraband articles.’ then ‘and any Well, A. were articles? I’m “Q. You felt these boots contraband means, but I felt it evidence.” certain what contraband Thereafter, on the list of sheriff Hammermeister was examined *85 items which he had seized which were not listed the search war- rant. The sum total of his can answers to all these stated fairly “Well, his to answer one I questions: it was again, thought evidence or whatever contraband means.”
The search warrant with the “and other con- magic any phrase was, Hammermeister, traband” to according sheriff all he needed to authority conduct his dragnet His attitude operation. is illustrated his testimony, at conclusion going through list items on the return search warrant: Warrant,
“Q. This statement on Search ‘and any other con- traband articles’ felt would you give you seize authority any and all find and property you wished to take? A. might I’m not means, sure what contraband but in mind— my I’m not “Q. it. asking you define I am this: asking you When you executed the Search Warrant was it in mind your that this'gave you the to seize authority any wanted to property you take? A. Well, the ‘and wording says other contraband’ and I figured that covered we what took in the of evidence way and items that we took.
“Q. Well, Anything you wanted take? A. if it was rele- vant to the case.
“Q. But deemed in own your mind as to whether it was relevant? Yes. A. If
“Q. you thought that the kitchen stove relevant you — Yes, well, would have taken that? A. Iif felt that the stove was if I case, felt that I could the kitchen as justify stove relevant to the yes.
“Q. You felt that this would have to take authority given you that, or the radio or TV? A. If it fell into either evidence or contra- band. But
“Q. as saw it? A. you Yes.” If the United States Constitution and the Montana Constitution case, do not condemn what took in this place then we might just well do with our Bill of are away —for worth no more Rights they than on which are written. paper they case this and seizure this
The entire record of arrest and search *86 of them dimension. Most with errors of constitutional replete — ignorance of by ignorance were caused an abundance Constitution, the Montana requirements basic of the United States state, Constitution, of this state. How- of this and case law statutes ever, and ratified this the District Court should have ignorance, we so. so doing it is unconscionable that we should have done By the to into the fog ig- have allowed defendant’s rights disappear constitutional, the that assuming norance. But just important, were as to met case law statutory requirements procedure case, fact the this the misstatements of in majority opinion glaring a to obtain requirement obliterated cause probable have any is a deter- arrest a warrant. All that is needed warrant of search been crime has gruesome mination made after conviction Henceforth, nature of the crime will be govern- committed. will defendant be given standard of this Court as to whether ing of his basic constitutional protection rights. by failing committed the defendant injustice against The grave ten evidence is fold compounded by seized suppress illegally to the constitutionality decision majority’s upholding fact, the entire statutory death scheme. In Montana’s penalty — around five the death revolves words scheme to relating penalty I cannot are circumstances.” conceive “unless there mitigating im- words are to adequate constitutionally that those five magic If so-called defendant. these upon mitigating death pose penalty also be accom- are have must meaning, they circumstances any elicit mandatory sentencing procedures designed panied by circumstances, review and mandatory appellate pro- mitigating this entire In respect cedures review the fairly process. designed effect cannot constitution- possibly pass Montana’s statutes then in al muster. 238, 2726, (1972), 408 92 S.Ct. U.S.
After Furman v. Georgia, 346, enacting responded 33 L.Ed.2d the Montana legislature to be allowed the death penalty statutes which two death penalty circum cases “unless there are mitigating certain inflicted in R.C.M.1947, 94-5-105, death provided penal stances”. Section
389
94-5-304,
for certain
ty
classes
deliberate homicide and section
R.C.M.1947,
provided
death
for
class of
penalty
certain
aggravated
did not enact
kidnapping.
statutes
legislature
any
providing
mandatory hearings on
question
aggravation
Nor did it enact
mitigation.
statutes
any
for manda
providing
of a
tory
review
sentence of
appellate
death. What the
has
majority
done
statutes,
is hold that Montana’s general criminal procedure
1967,
enacted in
are sufficient to
provide
protections demand
(1976),
ed
153,
the cases of
v.
428
Gregg
96
Georgia,
U.S.
S.Ct.
859;
2909,
Florida, (1976),
242,
49 L.Ed.2d
v.
U.S.
Proffitt
913;
Texas, (1976),
S.Ct.
49 L.Ed.2d
v.
428 U.S.
furek
96 S.Ct.
The majority
recognizes
demands of Gregg, supra, by
it
what
considers to
quoting
be its essential directive:
“Furman mandates that where discretion
a
is afforded sentenc-
ing
on a
body
matter so
as the
a
determination of whether
grave
life
human
should be
taken
that
spared,
discretion must be suit-
ably directed and limited so as to minimize the risk of
ar-
wholly
189,
and
bitrary
action.” 428
capricious
U.S.
L.Ed.2d 637. The next step the takes is to majority Harry cite a Roberts that for holding statute be sub- capital punishment valid, stantively there must be a for a consider- procedure allowing ation of circumstances. What the has mitigating majority ignored, however, is that a and demand that there Gregg, be Proffitt Jurek mandatory sentencing for consideration of hearing allowing circumstances, and there and mitigating ex- mandatory of all death sentences. When measured by review appellate pedited standards, fail statutes these Montana’s miserably. true is that do not they analyze
The failure of the majority The majority analyzes demands Gregg, Jurek Proffitt. as follows: requirements
“First, cir- be at least one statutory aggravating there must Second, the a death be considered. may cumstance before sentence before the sen- must be afforded the bring defense opportunity cir- hearing mitigating at sentencing tencing body separate Third, there must cumstances to the individual defendant. relating decision sentencing be available review judicial prompt a means to court of statewide jurisdiction, providing promote evenhand, of death sentences imposition rational and consistent law.” under the as to the these conclusions
I do with disagree general However, I totally disagree demands Gregg, Proffitt Jurek. the Montana statutory with in their conclusion that the majority and substantive procedural scheme then in effect these provided of the Mon sums the salient features protections. majority up scheme by stating: tana statutory those scheme is unlike statutory approved Montana’s
“Although and furek, Court in Proffitt, United States Supreme Gregg, scheme to of Montana’s statutory we see no substantive failure * * * is neither standards. Our system with constitutional comply are precise There discretionary. nor mandatory wholly wholly cir- and mitigating for finding aggravating statutory requirements cumstances, facts with out the respect flushing procedure levels, at two in- review circumstances. There appellate to such *88 the nature to is both proportional that the sentence legal suring short, statutory we that the Montana of crime. In believe and class herein, affords defend- of the crimes is existence at time scheme substantive his necessary protect safeguards ant the procedural or caprice. arbitrariness to be sentenced without rights “Therefore, in this question statutes in we the death penalty hold re- constitutional under the United States are constitutional case are quirements. They constitutional on their face and as applied added.) this defendant.” (Emphasis
The accurate only statement is that which I have emphasized. The conclusions the reaches majority can have come about for First, two reasons: only failed to majority read the statutes that Second, were involved in Gregg, majority Proffitt Jurek. failed to read Montana statutes which it as con- upholds being stitutional. One need notice the only absence of conspicuous analysis Florida and Georgia, Texas statutes and the same failure to cite and quote from Montana’s statutes which are upheld. Without this the reader is in analysis no position compare statutes and draw his as conclusions to merits of the majority’s conclusions.
The first requirement is that there be at least one statutory ag face, gravating circumstance. On its Montana’s statutes meet this requirement. The homicide statute sets out six cir aggravating cumstances, one of which is sufficient for the court impose (Section 94-5-104(1)(a) the death (f).j. sentence. through ag circumstance, gravating that the victim namely be dead as a result (Section 95-5-304.) However, of the kidnapping. the statutes are silent toas it whether is the jury who must make judge determination of whether the circumstance exists. aggravating This is illustrated uncertainty what this case. happened
The homocide statute is silent as to whether the or the judge jury makes the finding circumstance. aggravating The statutory ag- gravating circumstance “committed by means torture” was in this case. At the applied sentencing hearing, the district judge made that then sentenced finding,.and defendant to death for ag- gravated But homicide. just was used the opposite procedure the aggravated conviction. The kidnapping statute provided:
“A court shall impose sentence of death conviction following of aggravated it kidnapping the victim is dead as the finds if * * added.) result the criminal conduct Section (Emphasis 94-5-304, R.C.M.1947.
This section states it is the to judge, opposed who to jury, *89 a the criminal
make the “that the victim is dead as result of finding However, court, case, to the in this in addition gen- conduct.” verdict, a to the The jury. jury eral submitted special interrogatory In as conduct. found the victim was dead a result of the criminal and relied on adopted the death the court penalty, simply imposing is I do not this contemplated believe jury’s finding. procedure the statute. by
Moreover, in sub by the District Court procedure adopted in a is of doubtful validity to mitting special interrogatory jury cases state and should not be In criminal encouraged. general be should be to the and should not they verdicts only given jury 95-1909(h), Section R.C.M. interrogatories. cluttered by special a be a that in criminal cases verdict must provides general verdict. To adopt submitting special interrogatories practice side can erode the of this statute re to the issues jury only policy verdicts criminal cases. quiring general as rec requirement furek, The second Gregg, Proffitt an is that the defendant must have oppor ognized majority evidence of after conviction at separate hearing, present tunity this requirement circumstances. The satisfies majority mitigating are circumstances” mitigating “unless there by combining statutes, with the in the homicide and kidnapping language relating investigations. criminal statutes procedure presentence 95-2204, refers to section The section the only majority full, cannot tell if it and since it is one quoted R.C.M. Before these actually analyzing presentence investigation applies. statutes, laid down in requirements one must first know what are can be done only by discussing This Gregg, furek. Proffitt statutes were which approved. mandated separate there was supra,
In v. Gregg Georgia, circumstances of mitigation. into sentencing hearing inquire in a nonjury finding guilty a verdict of or by jury After guilty trial, hear- be a required separate sentencing the statute there the defendant the issue of whether with limited to inquiry ing 27-2503, Ann. Ga.Code to death. Section would sentenced hears the evidence on the issue of (Supp.1975). jury presented (Section 27-2534.1), is instructed aggravation mitigation and then if goes ag- into deliberation determine judge, circumstances are and whether to gravating mitigating present (Section 27-2503(b).) recommend the defendant. If the mercy *90 recommends the must jury death it the penalty designate ag- circumstances in and find a gravating them writing beyond doubt, reasonable and a if it is case the trial court must nonjury the specify circumstances written and find aggravating findings by each of them a beyond reasonable doubt. Florida,
In v. after a supra, jury statutory conviction Proffitt scheme required the trial to a conduct judge sentencing hearing where he was to consider a list seven circumstances. mitigating
In Proffitt, the statute to a required judge hold sentencing before a hearing jury unless the is jury hearing waived defend- by (Section 921.141(1) Fla.Stat.Ann.) ant. required The is to con- jury sider 921.141(5) both circumstances under aggravating section and 921.141(6) circumstances under mitigating section and deter- mine if the circumstances mitigating cir- outweigh aggravating cumstances, and amake determination if the death should penalty (Section 921.141(2).) be imposed. The trial court is authorized to recommendations, overrule the but it did jury if so and imposed sentence, death it is required to set out specific of fact findings how the showing circumstances aggravating outweigh mitiga- (Section 921.141(3).) ting circumstances. Texas,
In v. a supra, the scheme sentenc- statutory requires Jurek before the trial The ing hearing statute confines the judge jury. (Art. death to five defined classes narrowly of homicide. penalty 37.071, Crim.Proc.) Tex.Code is a list of three jury given issues, defined if the court to statutorily trial impose death answer jury question must each the affir- penalty, mative, doubt, (Art. a reasonable beyond unanimous jury. 37.071.) does statute not direct the consider Although jury circumstances, United States Court mitigating Supreme ruled tha list of three is sufficient to before the questions bring circumstances. jury any mitigating that the stat- these cases have minimum requirement
Clearly, and at that utes mandate a sentencing hearing, post-conviction evi- the defendant must have an opportunity present hearing Measured this re- against dence .in of the death sentence. mitigation insufficient to with- the Montana statutes are quirement grossly I think the can majority stand a constitutional attack. Nor do statutes are different concluding they breathe life into those than what are in fact. they that Montana’s statutes on the death penalty
We must remember hearing, whatsoever for post-conviction contain no provisions However, this the majority ignores much less a mandatory hearing. to believe same breath would like the reader deficiency, request that there is a statute which allows the defendant post-' he desires: conviction if hearing
“* * * to seek a hearing the defendant is authorized Finally, his and evidence in mitigation to the court present testimony punishment.” cited. this Surely, statute is cited and not. one case is
Not one bald, be considered to comply unsubstantiated statement cannot *91 and It is under- my the requirements with Gregg, furek. Proffitt involved, must, terms, con- statutes their own that the by standing on the hearing for a mandatory post-conviction tain provisions that any we all know or mitigation. Certainly, issue aggravation a even in the hearing his salt would ask for defense worth lawyer a most District likely, a it. And authorizing absence of statute However, that we cannot assume the motion. Court would grant a to death is who be sentenced may represented defendant every a The would hearing. or that all judges grant competent attorney for the hearing. statutes themselves must-provide basis for nonstatutory post- In addition to relying the function the stress on lays hearing, majority great conviction totally The majority use of the presentence investigation. statutes, because, to read the if had bothered they misses the point, is not re- investigation report see that presentence would they cases. Whether one is or- cases or in any felony in all felony quired Court dered is within the discretion of District entirely judge sentencing. who will doing
There are three statutes concerning investigations, presentence R.C.M.1947, 95-2303, sets cir all in 1967. Section out the enacted Court, can which a District in its discretion cumstances under 95-2204, order a Section R.C.M. investigation report. presentence out must be included in the sets the kind information that 95-2205, R.C.M.1947, use section determines the report. Finally, to which such can be It is unfortunate that the majority report put. tries with to leave the the reader that a in impression presentence is in all cases: vestigation required felony “* * * First, both death statutes that the court penalty provide ‘shall’ impose sentence of death ‘unless there are cir mitigating cumstances’. Defendant that the ‘unless’ urges clause may purport to circumscribe the but there are sentencing judge’s no authority, guiding standards nor sources of information for. This provided argument ignores second statutory relevant here— provision is, that the presentence investigation to be delivered report * * * considered court in sentencing felony cases. Section 95-2204, R.C.M.1947, provides the shall contain informa report characteristics, tion circumstances, needs, ‘the respecting and po defendant; tentialities of the his criminal record and social history; * * * offense; victim, circumstances and the harm to the his immediate and the family, community.’ provides report with sentencing authority whatever circumstances exist in may mitigation the defendant’s conduct.
“Reading provisions two court re- together, sentencing to consider circumstances and is con- quired mitigating required sider which must contain investigation report presentence * * *” added.) matters relevant to mitigation. (Emphasis
It is clear that intends to the reader majority give impression cases, are presentence investigations felony required facto, ipso all situations where the death be im penalty might *92 However, a of the statutes shows that posed. reading presentence are not and neither do the statutes investigations required provide and substantive mandated procedural protection by Gregg, The statutes are: Proffitt Jurek.
“92-2203. defendant convicted of Presentence No investigations. a in more crime which result commitment for one or may (l)year in the state shall be sentenced or otherwise of disposed prison, before a written is of report investigation by probation presented court, to and considered unless the deems such court report discretion, The in its court order unnecessary. may, presentence for defendant convicted of lesser crime or of- investigation added). fense.” (Emphasis
“95-2204. Content Whenever an investigation. investigation of officer shall into the probation promptly inquire required, characteristics, circumstances, needs, and potentialities defendant; his criminal record and social the circum- history; offense; detention; stances the time the defendant has been victim, and the to the his harm immediate the com- family, institutions, All local and state mental and correctional munity. courts, and shall furnish the officer on re- police agencies probation the defendant’s criminal record and other relevant informa- quest tion. The shall include and mental ex- investigation physical amination of the defendant when it is desirable in the opinion added.) the court.” (Emphasis “95-2205. Availability others. report defendant discretion, his make the or
judge may, investigation report parts others, of it available to the defendants while concealing who confidential information. If identity persons provided information, court discloses the who identity persons provided discretion, in his allow the defendant to cross- judge may, examine those who rendered information. Such shall be reports but of the record shall be sealed and on order of part opened only the court. to a state institution the
“If a defendant is committed investiga- shall be sent to the institution at the time of commit- tion report added.) ment.” (Emphasis have a there is no basis to statutory post-conviction
Obviously,
397 the on of That hearing question aggravation mitigation. diligent defense counsel does a may request one not defective remedy Moreover, a statute. for out facts” the is procedure “flushing his provided by when in presentence investigation report judge (Section 95-2203.) dispense discretion with such Even may report. a trial did order a is judge report, there no assuming statutory pro- cedure the defendant the and con- whereby may challenge findings clusions contained in the It not at all report. is clear under section 95-2205 that a and defendant his have to a of lawyer right copy the The statute presentence investigation report. clearly allows the court to withhold of who “identity provided confiden- persons tial And information”. if there is the trial has the hearing, judge right to refuse to allow defendant to cross-examine those whose provided information to the probation officer. These defects may be a of lack due procedural criminal case. In process any event, ain punishment case cannot be capital they tolerated. of same kind defects are carried to the over judi appellate cial review which the has case. majority approved this When the statutes analyzed, cannot fulfill the simply demands Gregg, and Proffitt Jurek.
In v. a statute Gregg Georgia, supra, directed ex- mandatory review the pedited by Georgia Court. The statute Supreme provid- ed in relevant part:
“Whenever the death penalty imposed, and upon judgment court, final in the trial becoming the sentence shall be reviewed * * the record Court of by Supreme *.” Georgia Ga.Code Ann. 1975) 27-2537(a). added.) (Supp. (Emphasis Review the sentence in addition to the review of the con viction itself. In the event an was taken from the conviction appeal itself, appeal sentence review are consolidated for review (27-2537(i)). The statute set also out the of review and the scope sentence, (27-2537 factors to be considered in reviewing death (c)(1) (3). And through finally, statute what action the provided sentence, (27-2537(e)(1) court could take in the death reviewing (2)). Florida, for mandatory the statute provided v. supra, In Proffitt the Florida Court. Supreme review expedited by sub- sentence death shall be “The conviction judgment within Court Florida to automatic review by Supreme ject court of the entire sentencing after certification by days record, an not to time is extended for additional period unless the shown. Such cause good exceed 30 Court Supreme days all other shall have over Court priority review by Supreme the rules in accordance with promulgated cases and shall be heard 921.141(4). ad- (Emphasis Court.” Fla.Stat.Ann. § Supreme ded.) *94 was also review of the death sentence
And mandatory expedited Texas and ap- scheme by for in the statutory adopted provided Texas, v. in proved supra: furek be sub- death shall convictions and sentence “The of judgment within Appeals the of Criminal review Court by to automatic ject rec- court of the entire the sentencing 60 after certification by days 30 not to exceed an additional period time is extended ord unless Such for cause shown. good Appeals the Court of Criminal days have over shall Appeals priority of Criminal review Court cases, with rules promul- be heard in accordance and shall all other Crim.Proc., Tex.Code Appeals.” the Court of Criminal gated by added.) 37.071(f). Art. (Emphasis Montana, In review of death sentence. there is no mandatory
In fact, mandatory for in existence providing there were no statutes that the concluded general review. The majority simply expedited in cases were sufficient in all criminal statutes which apply appeal Simtob, (1969), 462 154 Mont. with State v. combination is interest- review. It statutes to sentence relating 873 and the P.2d statutes, because from these did not quote to note the majority ing did, manifest- that the statutes are have to know if would they they did not bother to I must conclude majority deficient. again ly which they rely. read the statutes upon and sentence review processes appeal In concluding in enunciated requirement Gregg, the third satisfied Proffitt stated. furek, majority review death sentences is
“Prompt judicial provided by ap- to this as well as review to the Sentence peal Court Review Divi- sion. This determines the Court sentence legality imposed, Simtob, (1969), State v. 154 Mont. P.2d while the Sentence Review Division is designed to determine the appropriate- ness of the sentence with to the individual offender and respect par- ticular offense. This satisfies third criteria.
“* * * levels, is review There at two that the appellate insuring sentence is legal both and class of proportional nature * * *” added.) crime. (Emphasis
The accurate I statement that which have only emphasized, and that is a minor in only accurate to extent terms of the applica- tion of Simtob the facts of this case.
There which is no in statute allows provision specifically itself, review of the death sentence and there are no provisions The statutes which allow for review sentences.' ma- appellate has statutes which jority simply applied general apply sufficient, criminal cases and conclude that are without they again from statutes or otherwise quoting providing any explanation of their adequacy. statute, 95-2401, R.C.M.1947, section general appeal speci-
fies that is the sole method of review in criminal cases: appeal
“(a) This shall review in all chapter criminal cases. govern “(b) All existing methods review in criminal cases in state *95 are abolished. Hereafter the method review in criminal only cases shall be notice of by appeal.”
Those orders and from which a judgments defendant in a 95-2404, criminal case are may appeal provided section R.C.M.1947:
“(a) An be taken appeal may by defendant from final only conviction, and orders judgment after which affect judgment substantial of the defendant. rights
“(b) from a Upon appeal judgment, the court review the may decision, verdict or order or which objected decision in- any merits, volves or necessarily affects the judgment.” this statute does not Obviously, for review of a provide death fact, sentence in and of itself. In it is doubtful that this statute was intended to cover an where the defendant appeal seeks review only of the death sentence.
The time limits for an taking are set .out in appeal section 95-2405(e), 1947, R.C.M. which provides:
“(e) An (60) from a appeal judgment may be taken within sixty after its rendition.” days rendition,
If an is not taken within appeal of its sixty days de- fendant lose may have the court hear right his supreme ap- If a defendant peal. does not show cause in not his good filing ap- within his is peal sixty days, appeal subject dismissal. summary Frodsham, (1961), 222, State v. 139 Mont. 362 P.2d 418. Ac- if defendant cordingly, fails to file his timely notice of he appeal lose his may This is in right contrast to appeal. sharp those stat- Texas, utes approved Florida and Georgia, where the defendant cannot be sentenced to death unless the highest appellate court in There, the state has reviewed the death sentence. review manda- tory.
The other review relied on majority, sentence review by Division, the Sentence Review ais of their pure figment imagina- tion insofar as it to the death applies Whatever the penalty. philos- Division, behind the Sentence Review ophy setting up reading the statutes shows it was not intended to to the review of a apply death sentence. (Title 95,
Sentence review was created in 1967 legislative Montana) Revised Codes of Chapter and there are four statutes involved. The method of appointing to sit on the judges Division, Review Sentence the^number of needed to reach a judges decision, and the and times of place are in section meeting specified 95-2501, R.C.M. which provides:
“The chief court of Montana shall justice supreme appoint (3) three district to act as a review division of judges supreme court and shall one of such to act as chairman designate judges thereof. The clerk of the Montana court shall record such supreme *96 and shall notice thereof to the clerk of appointment give dis- every (4) trict court. This review division meet at a shall least four times or more as its business year determined the chair- requires by (2) man. The decision of two of such shall be any judges sufficient to determine matter before the review any division. No shall judge act sit or a review of a on sentence him. In case in imposed by any a which of review sentence imposed of the by any judges serving division, the review division tois be acted on said by the chief of the justice court of Montana supreme another may designate to in act of such judge place The review judge. division shall hold its at Deer state meeting Lodge prison], may adopt any [the rules and regulations which will expedite their review sentence. The division is also authorized to appoint secretary and such clerical it help as deems adequate fix their compensation.” added.) (Emphasis
The for procedure sentence review in obtaining is contained sec- 95-2502, R.C.M.1947, tion which provides: (1) “Any person sentenced term one in year more state by prison any court competent jurisdiction within may, six- (60) ty days from the date such sentence was imposed, except any case in which different sentence could not have been imposed, file with the clerk of the district court in the county in which judgment rendered, an for application review of the sentence the re- by view division. Upon imposition of the sentence the clerk shall give written notice to the sentenced his person right make such a request. Such notice shall include a statement that review of the sentence result in may decrease or increase of the sentence within limits fixed law. The clerk transmit shall such application review division and shall notify judge who the sen- imposed tence, and the county attorney which the sentence county was imposed. Such transmit judge may to the review division á sentence, statement of his reasons for and shall imposing trans- (7) mit such statement within seven if so days, requested do the review division. The review division for cause shown may con- sider late for review request of sentence and such may grant re- stay review shall not an application
quest. filing *97 added.) (Emphasis the sentence.” execution of is review in Montana not seen that the appellate We have already is if notice of not could be lost entirely appeal and mandatory, — is review it not manda- same is true of sentence timely filed. The it requests if a defendant within sixty is available only it tory— 95-2502.) (Section this alone For reason of sentenced. being days demands of cannot meet the Gregg, these statutes Proffitt is required, that review not mandatory But even assuming furek. to a sentenced to death no solace defendant the statutes still provide — not they that their terms do very apply for the reason simple death. to a sentenced to person that re- 95-2502 sentence provides sentence of section first
.The (1) to a of one sentenced term “any view available to only person is can- penalty death Obviously, or more in the state prison”. year Moreover, the last sentence of section that requirement. not fulfill of sentence review to death 95-2502 any application forecloses shall not the stay “The of an for review application sentence: filing sentence.” execution method,
Moreover, time and place for the the statute providing 95-2303, R.C.M.1947, execution, relevant in provides section part:
“(a) must inflicted by hanging The of death be punishment neck until he is dead. defendant death, “(b) set the court shall the sentence In pronouncing (30) be less than nor thirty days which must not date of execution (60) is date the sentence pronounced. from the days more than sixty “(c) be executed within the walls or of death must A sentence where in county of a or some convenient jail private.place yard took the trial place.” death, statute, is not com- if the is the defendant this sentence
By And the until he is executed. jail mitted to but remains in prison and no more thirty no than days take less place execution must This cannot be time is passed. from the sentence days than sixty 95-2502, that “the filing which with section provides reconciled an for review shall application the execution of the sen- stay tence.” One does indeed wonder how under a sentence of person death can be first executed and later entitled to sentence review. is And this remedy says majority adequate. statutes remaining are additional that the proof Sentence
Review Division was not intended to review sentence death: shall,
“The review division each case which an application 95-2502, for review is filed in accordance with review judg- ment far so as it relates to the imposed, sentence either increasing or other decreasing penalty, sentence on the imposed time, at the same person order such different may sentence or sentences have imposed could been at the time of imposed review, imposition sentence under decide may sentence under review should stand. In reviewing any judgment, *98 said division the of may require production presentence reports records, other any documents or exhibits relevant to such review The proceedings. and be appellant may appear represented counsel, and the state by be the may represented attor- by county of ney the in which county the sentence was If the review imposed. sentence, division orders a different the court in conven- sitting any ient shall county resentence the defendant as the ordered review by division. Time served on the sentence reviewed shall be to deemed have been served on the sentence substituted. The decision the of review division in each case shall and the reasons such be final for decision shall be stated therein. The of each decision shall original be sent to the clerk of court for in which the county judgment a rendered and be shall sent who copy judge imposed reviewed, sentenced, sentence officer of the person principal institution in is which he confined and the be decision shall report- added.) ed in the Montana Reports.” (Emphasis The that the Sentence Review language Division can either “in- crease or decrease the sentence” is a clear indication that the legis- lature had in mind a prison sentence rather than a sentence Moreover, death. there is no from decision of the Sen- appeal tence Review as Division the statute that “the specifically provides final”. The review division in each case shall be of the
decision mandatory involved in provided statutes Gregg, Proffitt Jurek the state’s court. by highest appellate review review, The of the statute section last on sentence wording 95-2504, R.C.M.1947, is indicates that a sentence of death clearly included in the review It process. provides: of this act is imprisoned
“A who on effective date person for a the state and who is not prison eligible under sentence to such sen- execution partial parole may, notwithstanding tence, other sentence any file a review of such sentence for time; that at the time such request at the provided, imposed to such sentence execute written consent review such shall person review, division on such includ- be the review may imposed if No shall considered an increased term. such application ing (2) act after date of this nor the effective taken later than two years been im- could not have case in which different sentence added.) posed.” (Emphasis sentences to be re- indicates the
The language again emphasized death The plain sentences and not sentences. viewed are prison been is if has sentenced of this statute meaning person sentence, may if his he still partially and even he has served prison, that he he a consent form provided signs for sentence review apply in- that his sentence also be may to take the chance willing is was not con- indicates the creased. This language surely legislature when enacted the sentence they the death penalty templating review statutes apply statutes. To hold that the sentence review statutes. meaning death sentence to ignore plain the facts. does not with square reasoning majority tortured taken legislature response Gregg, The action *99 a comprehensive death Jurek, by enacting penalty Proffitt (sec- procedure review hearing appellate sentencing procedure 95-2206.15, R.C.M.1947), is proof tions 95-2206.6 through here by majority the statutes regarded approved legislature sen- mandatory The enacted include inadequate. statutes woefully or mitigation consider issues of hearings aggravation tencing review. and mandatory appellate
The required where there is a hearing conviction that result may sentence, 95-2206.6, in a death is in section provided R.C.M.1947: a “When defendant is found to an of- guilty pleads guilty fense for which the sentence of death may be imposed, judge who at presided the trial or whom the before guilty plea entered shall conduct a to determine separate hearing sentencing the existence or nonexistence set circumstances forth 95-2206.8 and 95-2206.9 for the the sen- purpose determining tence to be imposed. shall be conducted before the hearing added.) court alone.” (Emphasis
Under this a statute sentencing hearing mandatory, and the court must inquire into the existence or nonexistence of aggravat- circumstances as ing enumerated in 95-2206.8 and the existence or nonexistence of mitigating circumstances as enumerated in section 95-2206.9. These statutes provide:
“Aggravating circumstances are any the following: “(1) The offense was deliberate homicide and was committed by person serving sentence of in the state imprisonment prison. “(2) The offense was deliberate homicide and was committed by a defendant who had been previously convicted of another deliber- ate homicide.
“(3) The offense was deliberate homicide and was committed by means of torture.
“(4) The offense was deliberate homicide and was committed by person wait lying or ambush. “(5) The offense was deliberate homicide and was committed as which, of a part scheme or operation if completed, would result in the death of more than one person.
“(6) The offense was deliberate homicide as defined in subsection (1 )(a) of 94-5-102 and victim was a peace officer killed while his performing duty.
“(7) The offense was aggravated which resulted in kidnapping 95-2206.8, the death of the victim.” Section R.C.M.1947. circumstances are “Mitigating following: *100 406
“(1) criminal no history prior The defendant has significant activity.
“(2) was under was while the defendant The offense committed or emotional disturbance. of extreme mental the influence “(3) duress or under the The acted under extreme defendant another person. substantial domination of “(4) criminality appreciate The of the defendant capacity of law requirements to the conduct or to conform his conduct of his substantially was impaired. “(5) the defendant’s conduct or The victim was a participant
consented to act. “(6) an offense committed was an The defendant accomplice minor. relatively and his participation another person, crime, defendant, “(7) of the The at the time of the commission was less than years age.
“(8) Section penalty.” other fact exists in Any mitigation 95-2206.9, R.C.M.1947. evidence at the sentencing hearing for hearing procedure R.C.M.1947, 95-2206.7, which in section forth
specifically set. states: as to any bemay presented evidence hearing,
“In the sentencing sentence, but including considers relevant to matter the court crime, the de- and circumstances of the to the nature limited character, and con- mental physical background, history, fendant’s dition, or mitigation facts in aggravation other force considers to have probative evidence the court penalty. Any under the rules admissibility its be received regardless may ad- at trials. Evidence of evidence criminal admission governing cir- or mitigating at trial such aggravating mitted relating at the it reintroducing without shall considered cumstances counsel or his The state and the defendant sentencing proceeding. sentence of against for or to present argument shall be permitted death.” section sentencing hearing, evidence at the receiving
After 95-2206.10, R.C.M.1947, provides manner in which Dis- trict Court consider the may aggravating circum- mitigating stances in his decision as to making whether the death penalty should be imposed:
“In whether to determining sentence of death or im- impose prisonment, the court shall take into account the aggravating *101 circumstances mitigating enumerated in 95-2206.8 and 95-2206.9 and shall impose sentence of death if it finds one or more the of aggravating circumstances and finds that there are no mitigating circumstances substantial for sufficiently to call If the leniency. court does not a sentence of death impose and one of the aggra- exists, vating circumstances listed in 95-2206.8 the court im- may of pose sentence imprisonment for life or for term any authorized by the statute the defining offense.”
Moreover, before court can impose death it must penalty make specific findings 95-2206.11, of fact as required by section R.C.M.1947:
“In sentence, each case in which the court imposes death determination of the court shall be supported by specific written findings of fact as to existence or nonexistence of each the cir- cumstances set forth in 95-2206.8 and 95-2206.9. The written find- ings of fact shall be substantiated the records of by the trial and the sentencing proceeding.”
And if a death is penalty automatic review is imposed, mandated 95-2206.12, by section and the nature and extent of appellate 95-2206.13, review 95-2206.14, is provided by sections 95-2206.15, R.C.M.1947. The automatic review statute provides:
“The judgment sentence of death are subject automatic review by supreme court of Montana as for provided in 95- 95-2206.12, 2206.13 95-2206.15.” through Section R.C.M.1947. The time limits within which review must take and the place priority assigned review of a death sentence is set forth in section 95-2206.13:
“The judgment conviction and sentence of death are subject automatic review the by supreme court of Montana within 60 days entire record court of the
after certification sentencing court for cause good the time is extended supreme unless all other court has over priority shown. The review by supreme be heard in accordance with rules promulgated by cases and shall in addition to review shall be court. The sentence supreme taken, the review and shall be consoli- appeal direct if appeal, dated consideration.” entire record to duties the clerk of court transmit the in section 95-2206.14: court supreme specified court, within 10 after days receiving
“The clerk of the trial to the transcript record and shall transmit the entire transcript, court.” supreme last, su- review the nature and extent of appellate
And also out: court is preme specifically spelled well as any “The court shall consider the punishment supreme sentence, to the With regard errors enumerated by way appeal. determine: the court shall
“(1) under the influ- the sentence of death imposed whether factor; other arbitrary prejudice, ence passion, *102 “(2) finding whether the evidence supports judge’s circum- of the or mitigating existence or nonexistence aggravating 95-2206.9; and in and stances enumerated 95-2206.8 “(3) the sentence of death is excessiveor disproportion whether cases, in considering similar both penalty imposed ate in its decision a crime and the defendant. The court shall include it took into consideration.” reference to those similar cases Section 95-2206.15, R.C.M. 1947. the 1977 Mon- show a faith good attempt by
The above statutes with the mandates of Gregg, tana legislature comply Proffitt are mandated entire through Procedural protections Jurek. hand, review. the other On hearing appellate process constitutional, fail being statutes which this has approved Court and cir- can conclude that the nature only in One every respect. influ- involved in this case has had more cumstances of the crimes law. The statu- than their desire follow ence on majority cannot tory by scheme withstand approved majority possibly careful United Court. analysis States Supreme
For the reasons I would reverse the foregoing convictions trial, grant new that the seized evidence must ordering illegally addition, In I suppressed. would hold that pen- Montana’s death at alty statutes existence the time are unconstitutional. No appel- late court should its to the give stamp approval violations defendant’s which occurred in this But rights case. this has Court this accomplished total for the facts. The objective by disregard misstatement of the facts is that I cannot Nor something fathom. should court resort to the any appellate tortured reasoning majority upholding of Montana’s death constitutionality statutes. If penalty this the standard all which review is to be conducted, then I see no reason at all courts should why appellate exist. each Let district judge be the final law unto himself.