No. 14677
IN THE SUPFEME C W O THE S A E O
O F TT F ENTANA
1979
S A E O MX?TANA,
TT F
P l a i n t i f f and Respondent,
EDWIN GRANT HAMJLTON,
Defendant and Appllant.
Appeal f m : D i s t r i c t Court of the Thirteenth Judicial D i s t r i c t ,
Honorable Robert H. Wilson, Judge presiding.
Counsel of Record:
J For Appellant:
D. Frank Karpfe argued, Red I d g e , Pbntana
Sally Johnson argued, Red Lodge, Mntana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Pbntana
Sheri Sprigg argued, Assistant Attorney General, H e l e n a ,
Pbntana
Pablo Perhacs, County Attorney, Red Lodge, Mntana
Arthw Ayers argued, Red Lodge, Montana
S*tted: June 5, 1979
mid&: & 1;
I ljLp
Filed :
i - , -- t
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Edwin Grant Hamilton appeals from his conviction by a
jury in Carbon County of the crime of mitigated deliberate homi-
cide. This Court heard oral argument upon the matter on June 5,
1979. On June 18, 1979, the United States Supreme Court decided
the case of Sandstrom v. Montana (1979), 442 U.S. , 99 S.Ct.
2450, 61 L Ed 2d 39. The Sandstrom case was decided before this
Court had decided the present case. Upon our review of the rec-
ord in the present case we determined that further argument was
necessary in light of the Sandstrom case, because neither party
addressed this issue in the original hearing. Additional briefs
were filed by the parties and oral argument was again presented
to this Court on October 29, 1979. This second hearing was
limited solely to the Sandstrom issue. The following decision
disposes of the issues raised in both the October and June hear-
ings.
At 6:26 p.m. on the evening of February 12, 1978, the
weekend dispatcher for the Carbon County sheriff and Red Lodge
police departments answered a telephone call. Her greeting "This
is the Red Lodge Police Department" received no response. Rather,
she overheard what sounded to her "like a couple of drunks argu-
officer
ing." She stated to a police/standing nearby that "this sounds
like we have got a fight." She then heard a male voice say "You
tried to call the goddamn cops on me." The dispatcher then turned
the phone over to the officer.
For approximately the next half hour, the police officer
listened through the phone to the events occurring at the source
of the call. He heard what sounded like a struggle between a
male and female. There was scuffling and a female voice calling
for help. After hearing what sounded like the female gasping for
air and choking, the officer began to write down the intelligible
words and sentences he could make out. He recorded the follow-
ing phrases spoken at intervals by the male voice:
"Goddamnit, die. I am going to hell. Mamma,
I am sorry. You all right, Mamma, huh? NO,
no, no, Mamma. I love you. Mamma, Mamma,
Mamma. Like hell I am. I have never done this
in my life. Now I have got to find my glasses.
Mamma, Mamma. Die, you bitch. Goddarnnit, die.
Are you going to die or not? Die, damnit. I
am going to hell, Mamma."
As the officer continued listening, he heard what he
thought was someone dialing the telephone on the other end of
the line. The male voice then spoke into the receiver: "Hang
the goddamn phone up, I have to call my cousin. My mother is
dead. She had a heart attack." The officer inquired as to the
party's name and address. The individual identified himself as
Grant Hamilton of 207-1/2 North Platt, a location only a block
away from the police station.
When a sheriff's deputy who had been advised of the lo-
cation arrived there minutes later, he found defendant, 54 year
old Edwin Grant Hamilton, with bruises and scratches on his face
and a trickle of blood from a wound on the top of his head. Ly-
ing face down on the floor near the doorway between the living
room and a bedroom was the body of Mabel Johnson, defendant's
75 year old mother with whom he shared the premises. She had
been manually strangled to death.
Shortly thereafter, the police officer who had been
listening on the phone arrived at the scene, and a few minutes
later the Carbon County sheriff also arrived. The sheriff placed
defendant under arrest and took him into custody. The police
officer and deputy sheriff then proceeded to take photographs
of the interior of the house and gather physical evidence. The
officers had no search warrant and had not asked defendant's
permission to search the premises.
On February 16, 1978, an application for leave to file
information was filed by the county attorney of Carbon County,
alleging that defendant had committed the crime of deliberate
homicide. Counsel for defendant objected that the affidavit
accompanying the application failed to set forth probable cause,
but the objection was overruled. On September 11, 1978, defen-
dant was brought to trial. After the presentation of evidence
instructions were given; one of the instructions given to the
jury read as follows: "The law presumes that a person intends
the ordinary consequences of his voluntary acts." This instruc-
tion was objected to by defense counsel. The jury returned a
verdict of guilty of mitigated deliberate homicide. Defendant
was sentenced to 35 years in Montana State Prison.
The defendant specifies six errors:
(1) Whether defendant was the victim of an illegal
arrest?
(2) Whether the affidavit in support of the application
for leave to file information was sufficient to establish prob-
able cause?
(3) Whether the District Court erred in denying defen-
dant's motion in limine to exclude evidence regarding the tele-
phone call to the Carbon County sheriff's office?
(4) Whether the District Court committed reversible error
in refusing to give defendant's offered instructions on negligent
homicide as a lesser included offense?
(5) Whether the District Court committed reversible
error in refusing to give defendant's proposed self-defense
instruction?
(6) Whether the District Court committed reversible
error in giving the instruction, "The law presumes that a person
intends the ordinary consequences of his voluntary acts."
We hold that the arrest was lawful and, consequently, the
items of evidence garnered within the limits of the search
incident to arrest were properly admitted.
Section 46-6-401(4), MCA, provides that a peace officer
may arrest a person without an arrest warrant when "he believes
on reasonable grounds that the person is committing an offense
or that the person has committed an offense and the existing cir-
cumstances require his immediate arrest."
"Reasonable grounds" as used in this statute is synony-
mous with "probable cause". State v. Fetters Q974), 165 Mont.
117, 122, 526 P.2d 122. "Probable cause to arrest without a
warrant exists where the facts and circumstances within the offi-
cer's knowledge and of which he had reasonably trustworthy in-
formation are sufficient in themselves to warrant a man of reason-
able caution in the belief that an offense has been or is being
committed." State v. Hill (1976), 170 Mont. 71, 74, 550 P.2d
390, 392.
"Evidence required to establish guilt is not necessary to
prove probable cause." Fetters, 165 Mont. at 122. However, the
mere fact that a defendant is present at the scene of a crime does
not justify his arrest. State ex rel. Glantz v. District Court
(1969), 154 Mont. 132, 139, 461 P.2d 193, 197. "There must be a
showing of some connection with illegal or criminal activity by a
defendant on the premises before there is probable cause to arrest
Z-,L / , ,,y
him. " State v. Lenon (1977), Mont . , 570 P.2d I T \ 34
St.Rep. 1153, 1156, citing State v. Hull (1971), 158 Mont. 6, 487
P.2d 1314.
"Where an officer reasonably believes that a person had
in the past committed an offense, he may arrest the suspect with-
out a warrant only where the existing circumstances require his
immediate arrest. Where, however the peace officer reasonably
believes that an individual is presently committing an offense,
he may arrest that person at that time, whether or not the existing
circumstances require his immediate arrest." Lenon, supra. 34
%.Rep. at 1153.
The foregoing authorities are the controlling case law
in Montana on this issue. The defendant argues that his mere
presence at the scene of the crime is not sufficient probable
cause to justify the arrest. This is a correct statement of the
7:
law. State ex rel. Glanx, supra. The facts of this case, how-
ever, present more than "mere presence" at the scene of the crime.
The police officers knew of the events overheard on the phone.
The defendant was present with the corpse at the source of the
call. The police arrived at the scene of the crime within minutes
after the events were heard on the phone. The scratches on the
defendant's face indicated that he had recently been involved in
a fight. These events sufficiently constitute probable cause to
arrest the defendant.
The language cited above from Lenon indicate that a
warrantless arrest must be made only when the crime was committed
in the officer's presence or that there are existing circumstances
which require his immediate arrest. (Section 46-6-401, MCA, out-
lines other circumstances where a warrantless arrest may be made,
but those circumstances are not presented in this case.) As a
result, we are presented w t : a problem concerning the time element
i:
in the present case.
Defendant argues that the commission of the offense was
in the past by the time the arrest was made and that the exist-
ing circumstances did not require defendant's immediate arrest
because he "was not going anywhere and there was ample time in
which to secure a warrant without losing any evidence or risking
any personal danger to law enforcement officers." However,
"knowledge of the commission of an offense in an officer's pres-
ence may be gained by him through a mechanical apparatus" and an
offense is "deemed committed in the presence of the officer" so
as to justify arrest without a warrant "when he hears the dis-
turbance and proceeds at once to the scene." 6A C.J.S. Arrest
818. Even in the case of a misdemeanor, under statutes allowing
warrantless arrest for offenses committed in the officer's pres-
ence, such an arrest after the offense is completed is proper if
made within a reasonable time or upon fresh and immediate pur-
suit. 5 Am Jur 2d, Arrest S33. It has been held that the right
to make warrantless arrests is broader in felony cases than in
misdemeanor cases. Chaney v. State (1975), 133 Ga.App. 913, 213
Defendant's attempt to invalidate his arrest on the basis
of this time argument must fail. What the officer overheard on
the telephone led him to reasonably believe that the defendant
was presently committing an offense. The warrantless arrest pur-
suant to that belief minutes later was proper regardless of whether
or not the existing circumstances required immediate arrest. The
arrest being lawful, the items of evidence acquired pursuant to
that arrest were properly admitted at trial.
The defendant contends that the affidavit in support of
application for leave to file information was insufficient. Sec-
tion 46-11-201(1), MCA, provides:
"The county attorney may apply directly to the
district court for permission to file an infor-
mation against a named defendant. The applica-
tion must be by affidavit supported by such evi-
dence as the judge may require. If it appears
that there is probable cause to believe that an
offense has been committed by the defendant the
judge shall grant leave to file the information,
otherwise the application shall be denied."
The Revised Commission Comment states, in pertinent part:
"Obtaining leave to file an information is not a
mere perfunctory matter, but rests in the sound
discretion of the district judge. The application
must be complete in itself, and contain such salient
facts as will allow the district judge to make an
independent determination that an offense has been
committed. It is impossible to delineate here
what facts would be necessary for all cases;
however, a recitation of the fact the defendant
had been arrested, that he was accused of a
crime, and that there is good evidence (e.g.
eyewitnesses) implicating him with the crime
would seem sufficient."
The foregoing statute and commission comment supply the
test by which we measure whether an affidavit is sufficient to
make possible an independent determination of probable cause by
the District Court. State ex rel. Murphy v. ~cKinnon (1976),
171 Mont. 120, 556 P.2d 906. "Examination of the record reveals
no supporting evidence other than the amended affidavit [was
required by the judge under 946-11-201(1), MCA]. ~ h u s , deter-
in
mining whether probable cause existed this Court is confined to
the contents of the amended affidavit." Murphy, 171 Mont. at 124.
The defendant points to the fact that certain statements
used in the affidavit were later suppressed on defendant's motion.
It is contended by the defendant that without those statements
the affidavit is insufficient. We do not agree.
The affidavit with the offending portions excised, reads:
"ARTHUR W. AYERS , JR. , being first duly sworn,
upon oath, deposes and says:
"That he is the duly elected, qualified and acting
County Attorney of Carbon County, Montana; that on
February 12, 1978, at approximately 6:26 P.M. a
telephone call was received by the dispatcher at
the Carbon County Sheriff's office; that the dis-
patcher heard a disturbance on the other end of the
telephone line and handed the telephone to Red Lodge
City Police Officer Craig Christie; that Officer
Christie heard a male voice at the other end of the
telephone line state: 'Mamma, Mamma, die you bitch,
God damnit die, are you going to die or not, die
damnit, I'm going to hell'; that a male person at
the other end of the telephone line then attempted
to use the telephone and Officer Christie inquired
as to the person's name and the address and was ad-
vised 'Grant Hamilton' and '207-1/2 North Platt';
that Carbon County Deputy Sheriff Bert J. Obert
and Officer Christie then proceeded to 207-1/2 North
Platt in the city of Red Lodge and discovered the
defendant Edwin Grant Hamilton at such residence
together with Mabel Johnson who appeared to said
officers to be deceased; that at 7:35 P.M. Mabel
Johnson was pronounced dead by a physician at her
said residence 207-1/2 North Platt, Red Lodge,
Montana, which residence was shared by her son, the
defendant Edwin Grant Hamilton and no others; that
the cause of death of Mabel Johnson has been pathol-
ogically determined to be manual strangulation; .. .
and that there is therefore probable cause to believe
that on or about February 12, 1978, in the City of
Red Lodge, County of Carbon, State of Montana, Edwin
Grant Hamilton then and there purposely or knowingly
caused the death of Mabel Johnson by strangling."
A prima facie showing that defendant committed an offense
is not necessary in an affidavit in support of leave to file; a
mere probability is sufficient for probable cause. State v.
Miner (1976), 169 Mont. 260, 546 P.2d 252. "[Jludges review-
ing such affidavits should use their common sense in determining
whether probable cause exists." Miner, 169 Mont. at 264, 546
Defendant here argues that the affidavit is deficient
because "there is no contention that other persons did not have
access to the house wherein the deceased was found dead" and be-
cause the affidavit gives no reason "to believe that the appellant
did not leave the premises during the day or that any other persons
did not visit the residence" on the day of the crime. Defendant
can cite no authority that the absence of these allegations is
fatal. As with the illegal arrest issue, defendant's contentions
here ignore the fact that evidence to establish probable cause
need not be as complete as evidence to establish guilt. A common
sense reading of the affidavit, even with the matters deleted to
which defendant objected, indicates that the statutory and de-
cisional guidelines were more than adequately met by the affidavit.
The defendant contends that evidence of the telephone
call received by the Red Lodge Police Department on the night in
question was inadmissible because there was no proper authenti-
cation or identification as a condition precedent to admissibil-
ity. The defendant argues that there is no inherent reliability
to the evidence that the speaker who identified himself over the
phone to the police officer as Grant Hamilton was in fact the
defendant. Rule 901, Mont.R.Evid., provides in pertinent part:
"(a) General provision. The requirement of
authentication or identification as a condition
precedent to admissibility is satisfied by evi-
dence sufficient to support a finding that the
matter in question is what its proponent claims.
"(b) Illustrations. By way of illustration only,
and not by way of limitation, the following are
examples of authentication or identification con-
forming with the requirements of this rule:
"(6) Telephone conversations. Telephone conver-
sations, by evidence that a call was made to the
number assigned at the time by the telephone com-
pany to a particular person or business, if (A) in
the case of a person, circumstances, including
self-identification, show the person answering to
be the one called, or (B) in the case of a business,
the call was made to a place of business and the
conversation related to business reasonably trans-
acted over the telephone."
As a general rule, "[aluthenticity for admissibility can
be demonstrated by direct or circumstantial evidence and the suf-
ficiency of evidence for a foundation is within the discretion
of the trial judge." State v. Cooper (1972), 161 Mont. 85, 92,
504 P.2d 978. Specifically regarding telephone calls, "many
criminal cases have held or recognized that a mere statement of
his identity by the caller on the telephone is not sufficient
proof of such identity," but on the other hand a huge number of
cases take the position that "the identity of a participant in
a telephone conversation may be established by circumstantial
evidence." Annot. 79 ALR3d 79, §§19, 20.
A similar issue was presented in Churchill v. State
(Tex.Crim.App. 1958), 317 S.W.2d 541. In Churchill, the testi-
mony of a deputy sheriff that he had a telephone conversation
with a person who gave his name as defendant, who reported a
shooting and instructed officers to meet him at a certain place,
the scene of the shooting, was admissible in evidence when fur-
ther testimony showed that deputies were immediately dispatched
to the scene and found defendant there. The fact that the deputy
was not familiar with the defendant's voice went to the weight
rather than to the admissibility of the testimony.
Where the recipient of a call is not familiar with the
caller's voice, "[clorroboration of a statement of identity by
the caller sufficient to render the conversation admissible
against him may be supplied by the evidence (1) that the subject
matter of the call revealed that only the named party would
likely have knowledge of those conversational facts; or (2) of
other confirming circumstances which make it probable that the
named person was, in fact, the speaker." [Citations omitted.]
State v. Marlar (1972), 94 Idaho 803, 498 ~ . 2 d
1276, I W .
Circumstances preceding or following a telephone conver-
sation may serve to sufficiently identify the caller so as to
render telephone communication admissible. State v. Williamson
(1972), 210 Kan. 501, 502 P.2d 777. "The completeness of the
identification goes to the weight of the evidence rather than
to its admissibility, and the responsibility lies in the first
instance with the ~istrictCourt to determine within its sound
discretion whether the threshold of admissibility has been met."
Williamson, 502 P.2d at 780.
Defendant's contention here that evidence of the phone
conversation should have been excluded because it did not fall
within Rule 901(b)(6), Mont.R.Evid., is erroneous because the
conditions stated therein are examples only. In this case there
are several confirming circumstances making it probable that de-
fendant was in fact the speaker. There was no error in the
denial of defendant's motion in limine.
The defendant alleges as error the District Court's fail-
ure to instruct on negligent homicide as a lesser included offense.
Section 46-11-501(2) (a), MCA, defines "included offense"
as an offense which occurs when "it is established by proof of
the same or less than all the facts required to establish the
commission of the offense charged . . ." While this definition
is applicable to double jeopardy or former prosecution as a bar
to a new prosecution, it also applies where we must determine
whether an instruction on a supposed lesser included offense is
required. In the instant case the defendant was charged with
deliberate homicide. Section 45-5-102, MCA. The refused re-
quested instruction dealt with negligent homicide. Section
45-5-104, MCA. The difference between the two crimes consists
of the mental state necessary to convict a defendant of the re-
spective crimes. For purposes of the following discussion we will
assume that negligent homicide is a lesser included offense of
deliberate homicide.
The question of the necessity of an instruction on a
lesser included offense has been addressed in a number of recent
cases by this Court. We have consistently held that such an in-
struction is required where there is some evidence to support the
lesser offense. "[A] defendant is entitled to instructions on
lesser included offenses if - evidence exists in the record
any
which would permit the jury to rationally find him guilty of a
lesser offense and acquit him of a greater." State v. Ostwald
(1979), Mont . , 591 P.2d 646, 651, 36 St.Rep. 442, 448,
This test has been consistently applied by this Court.
See State v. Baugh (1977), 174 Mont. 456, 571 P.2d 779, 34 St.Rep.
1315; State v. Bouslaugh (1978), Mont. , 576 P.2d 261, 35
St.Rep. 319; State v. Radi (1978), Mont . , 578 P.2d 1169,
35 St.Rep. 489; State v. Reiner (1978), Mont . , 587 P.2d
950, 35 St.Rep. 1861.
In the Reiner case, the defendant pointed a firearm at
several people and was subsequently convicted of aggravated
assault. The defendant had asked for an instruction on the lesser
included offense of assault and had been refused. Under this set
of facts the apprehension of serious bodily injury by the victims
was determinative. See section 45-5-202(c). his Court refused
to overturn the conviction, saying:
"There may be cases in which pointing a firearm
-
or threatening another with a firearm could
constitute assault rather than aggravated assault
but we are not called upon here to say what those
circumstances might be. In this case it is clear
that the defendant put his victim in reasonable
apprehension of serious bodily injury by his menac-
ing use of a ,357 magnum revolver." Mont . I
587 P.2d at 958.
We are faced with a similar case. There is testimony in
the record that death by manual strangulation requires two to
three minutes, and longer if the victim struggles. In refusing
the instruction, the District Court judge stated, "Well since
the defense of negligent homicide is beyond my wildest imagination
... I am going to refuse Defendant's . . ." instruction. Like-
wise, this Court cannot conceive how this death occurred as a
result of negligence. We find no evidence in the record upon
which an instruction of negligent homicide could be based. It
was not error to refuse such an instruction.
Defendant contends the trial court erred in refusing de-
fendant's offered instruction No. 34, which said:
"You are instructed that if a person is assaulted
in such a way as to induce in him a reasonable
belief of danger of losing his life or suffering
bodily harm, or that his family or a member thereof
may suffer bodily harm, or another may suffer
bodily harm, or his home is threatened, he will be
justified in defending himself or another, though
the danger be not real, only apparent."
The instruction that was given instead stated:
"A person is justified in the use of force when and
to the extent that he reasonably believes that such
conduct is necessary to defend himself against the
imminent use of unlawful force.
"However, a person is justified in the use of force
which is intended or likely to cause death or
serious bodily harm only if he reasonably believes
that such force is necessary to prevent imminent
death or serious bodily harm to himself."
This is language taken from section 45-3-102, MCA.
Defendant argues that because of the expert testimony
regarding the intimidating effects on defendant caused by his
bizarre relationship with his mother, it was essential that the
jury be specifically instructed that his claim of self-defense be
judged in terms of the apparent danger which he perceived and
not the actual dangers which faced him. However, where counsel
is "not limited under [the] instructions [given] from fairly pre-
senting his defense to the jury, the defendant will not be heard
to complain that the court failed to give the many different
nuances on a theory of defense that might have been devised."
. I *
State v. Collins (1978), Mont . , ?X?
P.2d 1179, 35 St.Rep.
The same issue was discussed in the Reiner case, supra.
In that case we said:
"In this instance the Court's instruction to the
jury was drawn directly from the self-defense
statute applicable. That statute states the jury
must base its determination of the self-defense
claim upon the defendant's reasonable belief of
the need to use force to protect himself. While
this instruction does not make the concept of
apparent danger absolutely clear, neither does it
misstate the law of self-defense. Under these
circumstances the better practice may be to clearly
instruct that the defendant's claim must be judged
in terms of the apparent danger which he perceived,
and not the actual danger which faced him. Yet
the instruction given in this case cannot be con-
sidered so misleading as to require a new trial.
We must assume that the jury did consider defen-
dant's belief in the need to use force and whether
that belief was reasgnable. This is all the statute
requires. " 587 P. 26% , 35 St.Rep. at 1869.
P
The Reiner case controis. It was not reversible error
to refuse the defendant's offered instruction No. 34.
Finally, the defendant contends that the giving of the
following instruction to his jury constitutes reversible error.
"The law presumes that a person intends the
ordinary consequences of his voluntary acts."
Defense counsel made an objection to this instruction:
" ... Nowhere in the Montana Criminal Code is a
statement that says that you can presume what that
offered instruction says; that is in violation of
the requirement that the State must prove by
competent evidence each and every material alle-
gation and here there is a presumption that would
not require the standard test beyond a reasonable
doubt. "
In a recent United States Supreme Court case it was held
that an instruction which was given to the jury and which was
identical to the above instruction, constituted reversible error.
Sandstrom v. Montana (1979), 442 U.S. , 99 S.Ct. 2450, 61
The Supreme Court came to this conclusion by analysing
the instruction "the way in which a reasonable juror could have
interpreted the instruction." They went on to say:
"Given the common definition of 'presume' as 'to
suppose to be true without proof,' Webster's New
Collegiate Dictionary 911 (1974), and given the
lack of qualifying instructions as to the legal
effect of the presumption, we cannot discount the
possibility that the jury may have interpreted
the instruction in either of two more stringent
ways. "
The first way the instruction may have been interpreted
by the jury was as an irrebutable direction rather than a presump-
tion. The second way was explained as follows:
" .. . the jury may have interpreted the instruc-
tion as a direction to find intent upon proof of
the defendant's voluntary actions (and their 'ordinary'
consequences), unless the defendant proved the contraGy
by some quantum of proof which may well have been
considerably greater than 'some' evidence--thus effec-
tively shifting the burden of persuasion on the element
of intent. Numerous federal and state courts have
warned that instructions of the type given here can be
interpreted in just these ways. (Citations omitted.) And
although the Montana Supreme Court held to the contrary
in this case, Montana's own Rules of Evidence expressly
state that the presumption at issue here may be over-
come only 'by a preponderance of evidence contrary to
the presumption.' Montana Rules of Evidence 301(b) ( 2 ) .
Such a requirement shifts not only the burden of produc-
tion, but also the ultimate burden of persuasion on the
issue of intent.
"We do not reject the possibility that some jurors
may have interpreted the challenged instruction as
permissive, or, if mandatory, as requiring only that
the defendant come forward with 'some' evidence in
rebuttal. However, the fact that a reasonable juror
could have given the presumption conclusive or
persuasion-shifting effect means that we cannot
discount the possibility that Sandstrom's jurors
actually did proceed upon one or the other of these
latter interpretations. And that means that unless
these kinds of presumptions are constitutional, the
instruction cannot be adjudged valid." 442 U.S. at
, 99 S.Ct. at , 61 L Ed 2d at 47-48.
A state must prove beyond a reasonable doubt every element
of the crime charged. In re Winship (1970), 397 U.S. 358, 90 S.Ct.
1068, 25 L Ed 2d 368. In Sandstrom the State had to prove that
the crime was committed purposely or knowingly. Section 45-5-102,
MCA. The United States Supreme Court concluded that under either
interpretation the instruction relieved the state of proving in-
tent beyond a reasonable doubt, therefore, it violated defendant's
guarantee of due process. If the instruction was interpreted as
a conclusive presumption it would excuse the state from proving
a vital element and would be unconstitutional under Winship, supra.
If Sandstrom's jury had interpreted the presumption as merely
shifting the burden of persuasion, "it could have concluded that
upon proof by the State of the slaying, and of additional facts
not themselves establishing the element of intent, the burden was
shifted to defendant to prove he lacked the requisite mental state.
Such a presumption was found constitutionally deficient in Mullaney
v. Wilbur, 421 U.S. 684 (1975)." The Supreme Court concluded
that "the judgment of the Supreme Court of Montana is reversed
and remanded for further proceedings not inconsistent with this
opinion." 442 U.S. at , 99 S.Ct. at , 61 L Ed 2d at 53.
This Court subsequently remanded the case to the District
Court for a retrial. State v. Sandstrom (1979), Mont . I
The State contends that the instruction was harmless error
under the facts of this case. We agree.
The present case began with a phone call to the Carbon
County sheriff's office. An officer heard what sounded like a
struggle between a male and female. There was scuffling and a
female voice calling for help. After hearing what sounded like
the female gasping for air and choking, the officer began to
write down the intelligible words and sentences he could make
out. He recorded the following phrases spoken at intervals by
the male voice:
"Goddamnit, die. I am going to hell. Mamma,
I am sorry. You all right, Mamma, huh? NO,
no, no, Mamma. I love you. Mamma, Mamma, Mamma,
Like hell I am. I have never done this in my
life. Now I have got to find my glasses. Mamma,
Mamma. Die, you bitch. Goddamnit, die. Are you
going to die or not? Die, damnit. I am going to
hell, Mamma."
Minutes later, law enforcement officers arrived at the
defendant's home and found him with bruises and scratches on
his face. His 75 year old mother was lying face down on the
floor. She had been manually strangled to death.
These facts were testified to at trial.
In order for a federal constitutional error to be held
harmless, the court must be able to declare a belief that it
was harmless beyond a reasonable doubt. Chapman v. California
(1967), 386 U.S. 18, 87 S.Ct. 824, 17 L Ed 2d 705. The Chapman
decision was based upon the earlier decision of Fahy v. Connecticut
(1963), 375 U.S. 85, 84 S.Ct. 229, 11 L Ed 2d 171. The court had
said in Fahy: "The question is whether there is a reasonable
possibility that the evidence complained of might have contributed
to the conviction." 375 U.S. at 86-87.
In Harrington v. California (1969), 395 U.S. 250, 89 S.Ct.
1726, 23 L Ed 2d 284, the Supreme Court again considered the con-
cept of harmless error. The prosecution, during defendant's
trial, had introduced the confessions of three codefendants. Two
of the codefendants did not take the stand. This practice had
been held to be a denial of Sixth Amendment rights in Bruton v.
United states (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L Ed 2d 476.
In Harrington, however, the Court held that the practice could,
under the facts of the case, be held as harmless error. The
Court said :
"But apart from them [the confessions] the case
against Harrington was so overwhelming that we
conclude that this violation of Bruton was harm-
less beyond a reasonable doubt, unless we adopt the
minority view in Chapman (386 U.S. at 42-45) that
a departure from constitutional procedures should
result in an automatic reversal, regardless of the
weight of the evidence.
"It is argued that we must reverse if we can imagine
a single juror whose mind might have been made up
because of Cooper's and Bosby's confessions and
who otherwise would have remained in doubt and
unconvinced. We of course do not know the jurors-
who sat. Our judgment must be based on our own
readinq of the record and on what seems to us to
have been the probable impact of the two confes-
sions on the minds of an average jury. We admon-
ished in Chapman, 386 U . S . , at 23, against giving too
much emphasis to 'overhelming evidence' of quilt,
stating that constitutional errors affecting the-
substantial rights of the aggrieved party could not
be considered to be harmless. By that test we
cannot impute reversible weight to the two con-
fessions.
"We do not depart from Chapman; nor do we dilute
it by inference. We reaffirm it. We do not sussest
that, if evidence bearing on all the ingredients40f
the crime is tendered, the use of cumulative evidence,
though tainted, is harmless error. Our decision is
based on the evidence in this record. The case
against Harrington was not woven from circumstantial
evidence. It is so overwhelming that unless we say
that no violation of Bruton can constitute harmless
error, we must leave m t a t e conviction undisturbed."
395 U.S. at 254. (Emphasis added.)
In Milton v. Wainwright (1972), 407 U.S. 371, 92 S.Ct.
2174, 33 L Ed 2d 1, the Supreme Court again considered the harm-
less error doctrine. The Court said that there was overwhelming
evidence of guilt and that there was "no reasonable doubt that
the jury . . . would have reached the same verdict without hear-
ing [the tainted1 testimony." 407 U.S. at 377. Consequently,
defendant's conviction was affirmed.
The tests used in Harrington and Milton seemingly are
different. The Harrington test focuses on the impact upon the
jury. The Milton test focuses upon the amount of evidence
presented at the trial or the "overwhelming evidence" test. See
BOY, Harmless Error: The Need For a Uniform Standard, 53 St.
John's L.R. 541 (1979).
Recently, this Court has made the following observation:
"To constitute harmless error, we must be able to assent as a
Court that the offensive instruction could not reasonably have
contributed to the jury verdict." State v. Sandstrom (1979),
Mont. I at , 603 P.2d 244, at 245, 36 St.Rep. 2099, 2100.
This statement indicates that the law in Montana as to harmless
error is closer to the Harrington test. That is, the appellate
court determines the impact of the error upon a reasonable jury.
If the impact of the instruction could not have reasonably con-
tributed to the verdict, then the error is harmless. That such
an approach is correct is emphasized by the United States Supreme
Court. They said that the proper analysis of an instruction
begins with "the way in which a reasonable juror could have inter-
preted the instruction." 442 U.S. at , 99 S.Ct. at ,
61 L Ed 2d at 45. .
Under Montana law, causing the death of another becomes
deliberate homicide only when it is committed purposely or know-
ingly. Section 45-5-102, MCA. Therefore, these elements are
necessary to the proof of this particular crime, and must be proved
beyond a reasonable doubt by the prosecution.
For obvious reasons, intent is a difficult element to
prove. The evidence must normally be in the nature of outward
manifestations of the defendant's state of mind. In the present
case, however, we have a unique situation. We know what the de-
fendant was thinking. A police officer heard him say, among other
things:
"Goddamnit, die . ..
Die you bitch. Goddamnit,
die. Are you going to die or not? Die, damnit ...I@
It is difficult to conceive of a better indication as to
defendant's intent. Also, the officer heard the fight at the
time these words were spoken and another officer found the
defendant and the victim's body minutes later.
For purposes of this issue, the only contested element
is intent. The evidence as to intent is overwhelming. We have
carefully read the record and our holding is based upon the
probable impact of the instruction upon the minds of the average
jury. In the light of the evidence, the impact of the instruc-
tion upon the jury could not have reasonably contributed to the
verdict. The error was harmless.
Affirmed.
Chief Justice
We con fi