No. 14760
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
THE STATE OF MONTANA,
Plaintiff and Respondent,
VS .
THURMAN J. MUSGROVE,
Defendant and Appellant,
and
INTERNATIONAL FIDELITY INSURANCE COMPANY,
Appellant.
Appeal from: District Court of the Fourth Judicial District,
Honorable E. Gardner Brownlee, Judge presiding.
Counsel of Record:
For Appellants:
Delaney, Dalby & Mudd, Missoula, Montana
For Respondent:
Hon. Mike Greew, Attorney General, Helena, Montana
M. Shaun Donovan, County Attorney, Superior, Montana
Submitted on briefs: November 15, 1979
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Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
International Fidelity Insurance Company (herein referred
to as the insurance company) appeals from the order and
judgment of the Mineral County District Court discharging
half of the forfeiture of a $50,000 bail bond. The insurance
company contends first, that the trial court erred in excluding
relevant, admissible evidence concerning the excuse of
mental illness offered to exonerate the bond forfeiture,
and second, that there is insufficient evidence to support
the trial court's determination.
Defendant Musgrove was charged with mitigated deliberate
homicide, and a $50,000 bail bond was posted by the insurance
company. During the course of the defendant's trial in
January 1979, the defendant was free under the insurance company's
bond. The defendant attended all the proceeding during the
course of the trial. On Friday, January 26, 1979, the trial
court recessed the trial at the close of the evidence. The
defendant was required to appear the following Monday, when
final arguments to the jury were to take place. The defendant
failed to appear on Monday, having left Montana and fled to
Texas over the weekend. The trial court desiring to avoid a
mistrial, recessed the defendant's trial until Wednesday,
February 7, 1979.
Following the defendant's failure to appear, the trial
court entered an order declaring that the insurance company's
surety bond be forfeited in its entirety; and also issued a
bench warrant for the defendant's arrest. The defendant, at
the urging of and with the assistance of the insurance company's
representatives, surrendered to law enforcement officers in
Mineral County on February 6, 1979. The defendant attended the
final day of trial on February 7, 1979, and was convicted and
sentenced.
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The insurance company petitioned the trial court,
pursuant to section 46-9-503, MCA, to enter an order discharging
the bond forfeiture. A hearing was held on February 21,
1979; and the trial court found that the defendant willfully
failed to appear for the conclusion of his trial on January
29, 1979 and departed the State of Montana to the State of
Texas. The trial court further found that the defendant was
returned to Montana and surrendered himself to the Mineral
County Sheriff on February 6, 1979, through the efforts and
with the assistance of representatives of the insurance company.
The trial court ordered that the forfeiture of the $50,000
bond be discharged in the amount of $25,000; and entered
judgment against the defendant and the .insurance company in the
amount of $25,000. This appeal followed.
The controlling statute is section 46-9-503(3), MCA,
which provides:
"If at any time within 30 days after the
forfeiture the defendant or his bail appear
and satisfactorily excuse his negligence or
failure to comply with the conditions of the
bail, the court, in its discretion, may direct
the forfeiture of the bail to be discharged upon
such terms as may be just."
The insurance company's sole ground for relief from the
bond forfeiture was the defendant's mental condition constituted,
under section 46-9-503(3), a satisfactory excuse for the
defendant's failure to appear on January 29, 1979. At the
hearing the insurance company offered evidence to demonstrate
that the defendant was in such a mental state, involving
acute distress, as to be suicidal in nature, which prompted
him to flee to Texas.
After leaving Montana and fleeing to Texas, the defendant
went to and admitted himself into the Villa Rosa Hospital in
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San Antonio, Texas, on January 31, 1979. Dr. Allen C.
Chittenden examined the defendant on February 1, 1979,
and diagnosed the defendant as suffering from psychotic
depression-suicide. Dr. Chittenden's report was admitted
into evidence at the hearing. Additionally, on the morning
of the bond forfeiture-exoneration hearing, Dr. Chittenden
called the trial judge and expressed that his main concern
was that the defendant might attempt suicide while being
incarcerated.
Jean Ganatta, the representative of the insurance company
who brought the defendant back to Montana, testified that
the defendant appeared in her office in Pueblo, Colorado on
Saturday, February 3, 1979. Ganatta testified that the
defendant looked terrible, was very nervous, shaking all
over, and looked like he was scared to death.
The insurance company contends that the trial court
erred in excluding relevant, admissible evidence directly
concerning the excuse of mental illness offered to exonerate
the bond forfeiture. The insurance company unsuccessfully
attempted to offer testimony of the defendant's wife as to
her observations of the defendant's appearance and condition.
The trial court improperly excluded the wife's opinion
testimony. The wife's opinion testimony was offered by the
insurance company in order to meet the statutory criteria of
satisfactory excuse for defendant's failure to appear.
Under Rule 701, M.R.Evid., opinion testimony of a lay witness
is admissible. Here the wife's observations as to the
defendant's appearance and condition is clearly relevant,
admissible lay opinion testimony.
Additionally, the trial court improperly commented upon
the defendant's state of mind concerning the defendant's
failure to appear when it said:
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"NOW, I'm not going to argue that the entire
bond be forfeited. As counsel has shown the
bonding company did return Mr. Musgrove to
the State of Montana. They said willingly, I
won't argue with that. I will give him that.
But when fled, he did so willfully and I would
advise the Court of one final factor. The very
flight of the Defendant from the State of Montana
I'm sure will be used as grounds for an appeal to
this matter and if that be the case, Mineral County
will be put to the expense of a third trial in
this matter. In addition the Defendant has now
indicated that he must require court appointed
counsel which also includes the production of
the transcript at County expense. I would move
the Court that at least twenty-five thousand
dollars of this bond be forfeited in the interest
of justice both as a penalty to the Defendant and,
also, to insure that sufficient funds will be
available for a third trial."
At the conclusion of the hearing, the trial court made
the following statements concerning the bond forfeiture.
"The Defendant Mr. Musgrove is the one that
committed the wrong here and from personal
standpoint, Dexter, you say the only loss was
the dollars the County put out. I promise you
that the County Attorney in Superior and the
Judge in that particular case sweated out twenty-
five thousand dollars worth of sweatbeads trying
to figure out what to do in this particular case.
It was a very agonizing situation and, I think,
the whole purpose of a bond is to make sure that
the Court is not subjected to that type of pressure.
"I think you said there was some justification for
the Defendant to flee and that the Court should take
that into consideration. There was lots of justi-
fication; he was guilty as all get out. A jury
found twice and I heard the testimony; I certainly
agree with that. But that's not justification to
flee. That's a poor excuse and the bonding company
is the one that is responsible here. If they are
going to put up a bond for a person, I think they
should somewhat administer that bond and make sure
the Defendant is there. It is not the responsibility
of the Court to do it. As a matter-of-fact, the
Court can't do anything with a bond out. It is
not the responsibility of the County Attorney or
the Sheriff; they can't do anything. The bonding
company here is in the wrong. The Defendant is in
the wrong. But I do appreciate the bonding company
bringing the Defendant back so that we could conclude
the trial before a mistrial was declared and, I
think the County Attorney was very generous in
offering the bonding company a twenty-five thousand
dollar rebate or exoneration for that purpose."
Our review of the record leaves no doubt that the $25,000
bond forfeiture was imposed as a penalty.
"THE COURT: W e l l , M r . Delaney, t h e r e i s n ' t any
d o u b t i n m mind a s t h e judge who p r e s i d e d on
y
t h e t r i a l t h a t a t t h a t p a r t i c u l a r t i m e M r . Musgrove
knew t h e j u r y was g o i n g t o f i n d him g u i l t y b e c a u s e
t h e t e s t i m o n y was s o o b v i o u s i n t h a t d i r e c t i o n and
t h e I n s t r u c t i o n s s e t t l e d by t h e C o u r t w a s s o o b v i o u s
i n t h a t direction. I know t h a t h e knew t h i s w a s
g o i n g t o happen and I know t h a t b e c a u s e o f t h a t h e
f a i l e d t o show up t h e n e x t day. There i s no d o u b t
i n m mind t h a t h e was u p s e t .
y I t h i n k I would have
been. "
The t r i a l c o u r t ' s s t a t e m e n t s i n d i c a t e t o u s a b i a s which
r e s u l t e d i n e f f e c t i v e l y d e n y i n g t h e i n s u r a n c e company an
opportunity t o e s t a b l i s h i t s c a s e of excuse i n o r d e r t o
e x o n e r a t e t h e bond f o r f e i t u r e .
A s a n o t h e r ground o f a p p e a l , t h e i n s u r a n c e company c o n t e n d s
t h a t t h e e v i d e n c e d o e s n o t s u p p o r t t h e o r d e r and judgment of
t h e t r i a l c o u r t which d i s c h a r g e d h a l f o f t h e f o r f e i t u r e of t h e
$50,000 bond. I n d e e d , t h e i n s u r a n c e company a r g u e s t h a t t h e
$25,000 bond f o r f e i t u r e i s i n e f f e c t , a p e n a l t y n o t a u t h o r i z e d
by law. The S t a t e , on t h e o t h e r hand, c o n t e n d s t h a t s e c t i o n
46-9-503(3) p e r m i t s j u s t t h e k i n d of a c t i o n t h a t w a s t a k e n h e r e .
The p u r p o s e o f b a i l , however, under s e c t i o n 46-9-101,
MCA, i s t o i n s u r e t h e p r e s e n c e of a d e f e n d a n t i n a pending
c r i m i n a l proceeding. I t i s not t h e purpose of b a i l t o punish
a d e f e n d a n t o r s u r e t y , n o r t o i n c r e a s e t h e revenue of t h e s t a t e .
See A l l i s o n v. P e o p l e ( 1 9 5 5 ) , 132 Colo. 56, 286 P.2d 1 1 0 2 ,
A p p l i c a t i o n of S h e t s k y ( 1 9 5 3 ) , 239 Minn. 463, 60 N.W.2d 40;
S t a t e v. O'Day ( 1 9 5 0 ) , 36 Wash.2d 146, 216 P.2d 732. Here,
t h e r e c o r d shows t h a t M i n e r a l County i n c u r r e d a p p r o x i m a t e l y
$1,000 i n a d d i t i o n a l expense b e c a u s e t h e d e f e n d a n t f l e d t h e
jurisdiction. While w e c a n n o t s a y t h a t $1,000 i s t h e a p p r o p r i a t e
measure o f a bond f o r f e i t u r e , it i s c l e a r h e r e t h a t t h e $25,000
bond f o r f e i t u r e w a s imposed a s a p e n a l t y .
A t t h e h e a r i n g t h e S t a t e r e q u e s t e d t h a t a t l e a s t $25,000
o f t h e bond be f o r f e i t e d as a p e n a l t y t o t h e d e f e n d a n t and
t o i n s u r e t h a t f u n d s would b e a v a i l a b l e f o r a n o t h e r p o s s i b l e
trial. The S t a t e a r g u e d :
The appellate record is also muddied by the failure
of the trial court to enter proper findings of fact and
conclusions of law. Rather, the trial court simply entered
an all-encompassing conclusion that the defendant willfully
failed to appear for the conclusion of his trial. The
insurance company's contentions as to excuse were not addressed
at all. Nor were findings entered supporting or explaining
how the trial court determined that there should be a $25,000
bond forfeiture. The record before us, however, leads to the
inescapable conclusion that it was imposed as a penalty, an
impermissible penalty.
It is clear here that the real question is reaching
a decision to discharge the bail "upon such terms as may be
just." Section 46-9-503(3). The prosecutor argued that he
would not argue that the entire bond be forfeited and the trial
court in effect agreed in not declaring a forfeiture of the
entire amount.
This cause is remanded to the District Court for a deter-
mination of "just terms" for discharging the bail. Any judgment
reached shall not consider as factors either a penalty to
the defendant or the insurance company or revenue to the state.
Justice
We Concur:
Chief, Justice