No. 13875
IN THE SUPREME COURT OF THE STATE OF MONTANA
1978
STATE OF MONTANA,
Plaintiff and Respondent,
LYNN C. GALLAHER and
BRIAN J. COLEMAN,
Defendants and Appellants.
Appeal from: District Court of the Third Judicial District,
Honorable Arnold Olsen, Judge presiding.
Counsel of Record:
For Appellants:
Byron W. Boggs argued, Anaconda, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Allen Chronister, Assistant Attorney General, argued,
Helena, Montana
James J. Masar, County Attorney, Deer Lodge, Montana
Submitted: March 9, 1978
Decided
,I l.J,Y . .'. jurr - 77
1 38
Filed:
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Defendants Lynn Gallaher and Brian Coleman appeal from
their convictions of committing the offense of escape and from
their subsequent designations by the District Court as persistent
felony offenders.
At the time of their escape attempt, defendants Gallaher
and Coleman were inmates at Montana State Prison, serving sen-
tences for prior felony convictions. On January 6, 1977, Gallaher
and Coleman, who had been undergoing hospital care at Powell County
Hospital in Deer Lodge, Montana, were waiting to be transported
back to the prison by Officer Dale Dodge of the Montana State
Prison staff. Officer Robert McNally, the warden's administra-
tive assistant at the prison, was at the hospital at the same time
conducting other business. Coincidentally, he was driving a "cage
car", a station wagon used to transport prisoners back and forth
from the prison. When Officer Dodge discovered this, he telephoned
prison authorities and arranged to transport Gallaher and Coleman
back to the prison in Officer McNally's car instead of waiting
for another car and driver to arrive.
Officer Dodge escorted Gallaher and Coleman out of their
hospital room and down the hallway to the hospital entrance. On
their way they passed Officer McNally who was talking with others
at a nurses' station in the hallway. When the three arrived at
the hospital entrance, Officer McNally was still some distance
behind them. Once outside, Officer Dodge waited for Officer Mc-
Nally to come out before putting the defendants into the car. When
Officer McNally did not immediately follow, the defendants looked
at each other and decided to run for it.
As soon as the defendants began running, Officer Dodge
shouted to them to stop. He first fired a warning shot high in
the air and when defendants did not stop, he fired another over
their heads. Eugene Hurlburt, a maintenance man at the hospital,
and Officer Dodge then gave chase to defendants and caught
both of them within two hundred yards of the hospital.
On January 31, 1977, Gallaher and Coleman were charged
by information filed in the District Court, Third Judicial Dis-
trict, Powell County, with committing the offense of escape.
Both defendants plead not guilty and the District Court set a
trial date for March 10, 1977.
On March 9, 1977, the deputy county attorney served de-
fendants' counsel with notices of intent to request a finding
of persistent felony offender based on the prior felony convic-
tions of each defendant. At that time, the prosecutor proposed
to defense counsel that if the defendants changed their pleas
to guilty, he would not file those requests.
At the outset of defendants' trial, their counsel moved
to withdraw their pleas of not guilty and to enter guilty pleas.
The court asked defendants' counsel whether defendants felt any
compunction or duress to change their pleas. When defense counsel
responded that if he was in the defendants' position he would feel
duress, the court denied his motion. The State then filed with
the District Court a notice of request for finding of persistent
felony offender against Gallaher for sentencing and parole pur-
poses and a similar notice against Coleman for parole purposes.
(Because Coleman was under 21 years of age at the time of commit-
ting the escape, he could not be sentenced as a persistent felony
offender. Section 95-1507 (6), R.C.M. 1947 (amended 1977). )
At trial defendants attempted to establish the defense
of entrapment through cross-examination of the State's witnesses.
The District Court sustained objections to certain of defense
counsel's cross-examination questions and subsequently refused
all of defendants' instructions on the entrapment defense. De-
fendants were eventually convicted by jury of committing the
offense of escape. On April 4, 1977, the District Court desig-
nated both defendants as persistent felony offenders and sen-
tenced them each to eight years in prison to be served consecu-
tively to their prior sentences.
In their appeal defendants raise the following issues:
1. Did the manner in which the State used the habitual
criminal statute during plea bargaining negotiations constitute
an unlawful attempt to coerce a guilty plea in violation of the
defendants' constitutional right to a jury trial?
2. Did the District Court err in sustaining objections
to certain of defense counsel's cross-examination questions
through which defendants attempted to develop a defense of en-
trapment?
3. Did the District Court err in refusing defendants'
instructions on the entrapment defense?
Defendants' first specification of error is that they
were deprived of due process of law because less than 24 hours
before trial the prosecutor threatened to invoke the habitual
criminal statute unless the defendants changed their pleas to
guilty. Defendants claim that the habitual criminal statute was
invoked to punish them for attempting to exercise their right to
a jury trial, that the prosecutor knew of defendants' prior
felony convictions long before he filed notice of intent to seek
increased punishment, that this action is inconsistent with a
belief by the prosecutor that a longer sentence was necessary,
and the record is barren of any justification for the prosecutor's
action. They argue that this Court's holding in State v. Sather,
(1977) Mont . , 564 P.2d 1306, 34 St.Rep. 462, is disposi-
tive of their case. They ask this Court to vacate their sentences,
strike the State's notices to seek increased punishment, and remand
their case for resentencing.
The State counters that there are decisive factual dif-
ferences between this case and Sather; consequently, it should
not be regarded as controlling. Alternatively, it argues that
the recent United States Supreme Court decision of Bordenkircher
v. Hayes vitiates the Sather rationale. See, Bordenkircher v.
Hayes, (1978), U.S. , 98 S.Ct. 663, 54 L Ed 2d 604, 612, 22
&irnL.R. 3023, rev'g, Hayes v. Cowan, (6th Cir. 1976), 547 F.2d
42. In passing, we note that the Supreme Court's holding in
Bordenkircher was a narrow one.
- It held only that I' * * * the course
of conduct engaged in by the prosecutor in this case, which no
more than openly presented the defendant with the unpleasant al-
ternatives of foregoing trial or facing charges on which he was
plainly subject to prosecution, did not violate the Due Process
Clause of the Fourteenth Amendment." 54 L Ed 2d 612. Because
we agree with the State that this case is factually distinguish-
able from Sather, we conclude that Sather does not control the
outcome of this case. Additionally, we find no due process
violation involved here.
In Sather defendant Sather and Claude McIntosh were
charged with the offenses of attempted burglary and theft on
October 30, 1975. Both initially plead not guilty to the charges,
but on October 31, McIntosh entered into a written plea bargain
agreement with the State. In consideration for a plea of guilty
to the two charges, the State agreed among other things to recommend
sentences of ten years on the charge of attempted burglary and
five years on the charge of theft to be served concurrently.
McIntosh changed his plea to guilty and on November 20 he received
a sentence in conformity with the plea bargain agreement.
In plea bargaining negotiations with Sather, the State
was willing to recommend a sentence of ten years, but Sather re-
jected that plea bargain arrangement. From mid-November until
the day before his trial Sather was incarcerated at the Montana
State Prison in Deer Lodge. On April 7, 1976, he was transferred
back to Missoula for trial. Only then did the prosecutor file
notice of intent to seek increased punishment under the habitual
criminal statutes. At the same time, however, the prosecutor
offered to withdraw this notice if Sather would plead guilty be-
fore trial began the next day and to recommend the same ten year
sentence previously offered. Sather refused to plead guilty.
He was then convicted on the attempted burglary charge and under
the habitual criminal statute was given a 50 year sentence.
On appeal Sather argued that the prosecutor had used plea
bargaining procedures and invoked the habitual criminal statute
for an improper purpose and that the judge had punished him with
an excessive sentence for refusing to plead guilty. Sather pre-
sented facts which showed that the prosecutor knew of his prior
criminal record, had the parole board's evaluation of Sather
before him and had completed his information gathering long be-
fore invoking the habitual criminal statute; that in numerous plea
bargaining sessions the prosecutor had offered to recommend a
ten year sentence if Sather would plead guilty; that the prosecu-
tor had waited until plea bargaining had broken down and trial
was only 24 hours away before he threatened to invoke the habitual
criminal statute; and that even then the prosecutor offered to
withdraw his invocation of the habitual criminal statute and still
recommend a ten year sentence if Sather would plead guilty.
The crucial factors in Sather were Sather had shown that
the prosecutor was in a position to evaluate whether or not it
was in the public interest to invoke the habitual criminal stat-
ute long before he did invoke it and that in contrast to his
prior evaluation of the case the prosecutor in the 24 hours prior
to trial threatened to recommend greatly increased punishment
under the habitual criminal statute unless Sather pleaded guilty.
We concluded that the only supportable inference from the prosecutor's
conduct was that the prosecutor had punished Sather for refusing
to waive his right to a jury trial and that the disparity in
sentences which the District Court gave to Sather and IlcIntosh
lent support to the inference. The facts of the Sather case
strongly suggested that Sather had been treated unjustly.
The Sather case was submitted to the court upon an agreed
statement of the proceedings, the District Court file, and a cer-
tified copy of the docket entries. Although the defendants here
make allegations similar to those Sather made, their case, in
contrast, is not as well documented. Here, we have the District
Court file to refer to, but we have neither an agreed statement
of the proceedings up to the point of trial, nor a certified copy
of docket entries. Consequently, we are unable to determine the
point at which the prosecutor was able to fairly evaluate whether
or not it was in the public interest to invoke the habitual crim-
inal statute. Neither do we know the prosecutor's evaluation of
the case as shown by the length of sentence he was willing to
recommend in return for guilty pleas by the defendants nor the
amount of increased punishment he threatened to seek if the de-
fendants did not plead guilty.
Another crucial difference between Sather and the instant
case is in the length of sentences actually given. Invocation
of the persistent felony offender statute for sentencing purposes
mandates that the offender shall be imprisoned for a term of not
less than five years nor more than 100 years. Section 95-1507(2),
R.C.M. 1947 (amended 1977). Sather received a 50 year sentence
for an offense which otherwise carried a maximum ten year penalty.
In the instant case, the District Court, which had refused to
allow either defendant to change his plea to guilty, sentenced
Gallaher to eight years in prison. Although the escape offense
carried a maximum penalty of ten years, he was subject to increased
punishment of up to 100 years under the habitual criminal statute.
In contrast, Coleman, who was not subject to the statute for
sentencing purposes, received a similar eight year sentence.
We are unable to perceive any indication here that the District
Court sought to punish defendants for not pleading guilty when
it was the District Court itself which refused to allow defen-
dants to change their pleas to guilty. The sentences which de-
fendants actually received here do not support such a contention.
Defendants have not demonstrated a similarity to the
disparity between sentences the prosecutor was willing to recom-
mend and the sentences actually given nor the disparity in sen-
tences between defendants themselves that was present in Sather.
Because of this, we do not feel the facts of this case justify
an inference that the defendants were punished for not pleading
guilty. We, therefore, refuse to hold that defendants were denied
due process of law.
Defendants' second specification of error relates to the
District Court's sustaining objections to certain of defendants'
cross-examination questions through which they were attempting
to establish a defense of entrapment. At trial the defendants
did not deny that they attempted to escape; rather, they asserted
the defense of entrapment as an excuse for their actions. De-
fendants claim the District Court improperly limited their cross-
examination of the State's witnesses, Officers Dodge and McNally,
thereby depriving them of an opportunity to prove the entrapment
defense.
At the outset, we note that at the time of this trial,
March 10, 1977, the new Montana Rules of Evidence were not yet
applicable. The new rules became effective July 1, 1977, for all
trials held thereafter. In the Matter of the ~pplicationof the
Montana Bar Association, (1976), Mont . , 34 St.Rep. 302A,
302B. We will not, therefore, make retroactive the application
of the new Rules of Evidence. Because Montana's new Rules of
Evidence have superseded some of the former rules, we emphasize
that our discussion herein is of the rules in effect at the time
the trial occurred.
Section 93-1901-7, R.C.M. 1947, defines the allowable
scope of cross-examination: "The opposite party may cross-ex-
amine the witness as to any facts stated in his direct examin-
ation or connected therewith * * *". This section permits a
wide range for cross-examination and the courts should incline
to extend, rather than to restrict, the right. " * * * Properly
understood, the right extends, not only to all facts stated by
the witness in his original examination, but to all other facts
connected with them, whether directly or indirectly, which tend
to enlighten the jury upon the question in controversy." Kipp
v. Silverman, (1901), 25 Mont. 296, 306, 64 P. 884, 888.
Defendants complain of six instances in which they allege
the District Court allegedly improperly limited their cross-
examination of Officer Dodge. All six instances were questions
relating to what the proper prison procedure was for transport-
ing the prisoners from their hospital room back to the prison,
whether Officer Dodge followed that prison procedure, and if not,
why he did not follow it. Although Officer Dodge testified on
direct examination that he led the prisoners from their hospital
room down the hallway and out the door, he did not testify to
what the proper prison procedure was in doing so nor did he testi-
fy to whether his conduct was in conformity with prison procedure.
In regard to prison procedure, he only testified to what was
proper procedure to follow when prisoners were occupying a hos-
pital room. For this reason, we think defendants' questions were
outside the scope of Officer Dodge's direct examination and there-
fore, this was improper cross-examination.
Defendants also complain of two other instances in which
the District Court sustained objections to their cross-examination
questions of Officer McNally. Defendants' questions to Officer
McNally related to whether it was prison procedure to transport
prisoners in handcuffs and belts such as the ones introduced as
exhibits and to whether the prison classified inmates according
to the degree of risk they posed to the prison. On direct ex-
amination Officer McNally only testified that he saw Officer
Dodge and the two prisoners walk down the hallway and leave the
building and then he saw the prisoners begin to run. We find no
testimony in Officer McNally's direct examination which would
bring these cross-examination questions within the scope of his
direct examination. Again, we do not think the District Court
erred in excluding these questions.
The latitude of cross-examination is in the discretion
of the trial court, and this Court will not interfere unless it
is manifest that the trial court abused its discretion. State
v. Carns, (1959), 136 Mont. 126, 136, 345 P.2d 735. We find no
abuse of discretion here.
The defendants' third specification of error relates to
the District Court's refusal to submit any of their proposed
instructions on the entrapment defense to the jury.
To establish the defense of entrapment, the defendants
must prove: (1) That criminal intent or design to commit the
crime originated in the mind of the law enforcement officer;
(2) that no criminal intent or design originated in the minds of
the accused; and (3) that the law enforcement officer lured or
induced the defendants into committing a crime they had no in-
tention of committing. Section 94-3-111, R.C.M. 1947; State v.
Grenfell, (1977), Mont. , 564 P.2d 171, 34 St.Rep. 345,
348: State ex rel. Hamlin, Jr. v. District Court, (1973), 163
Mont. 16, 20, 515 P.2d 74. Where there is no evidence in the
record supporting each element of the entrapment defense, the
court may properly refuse to instruct the jury on the defense.
State v. Parr, (1955), 129 Mont. 175, 182, 283 P.2d 1086.
We have reviewed the transcript of defendants1 trial
closely and do not find any evidence showing that the escape
plan originated with prison officials or that they lured or
induced the defendants into escaping. At most, the prison
officers1 conduct presented only an opportunity to escape, of
which they took advantage. Merely affording an opportunity for
commission of the offense, however, does not come within the
entrapment rule. State v. Karathanos, (1972), 158 Mont. 461,
470, 493 P.2d 326. The defendants' attempted escape was on
impulse. When the defendants walked outside the hospital, they
testified that it "* * * didn't look like anything [was] going
on * * *" so they "* * * hit the road". They ' *
I * * just de-
cided to go". For this reason, we conclude the District Court
did not err in refusing to submit defendants1 instructions on
entrapment to the jury.
Defendants1 convictions are affirmed.
Chief Justice
5
'
We concur: '
/--'
~ u d ~ !i,
en
&g
t with the Court.