No. 80-160
I N THE SUPREME C U T O THE STATE O M N A A
O R F F OTN
1980
STATE OF M N A A
O T N ,
P l a i n t i f f and Respondent,
VS .
A T O Y RODRIGUEZ,
NH N
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court o f t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Y e l l o w s t o n e .
Honorable Diane G. B a r z , J u d g e p r e s i d i n g .
Counsel o f Record:
For Appellant:
Moses Law Firm, B i l l i n g s , Montana
Michael Moses a r g u e d , B i l l i n g s , Montana
F o r Respondent :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
John Maynard a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l , H e l e n a ,
Montana
H a r o l d F. H a n s e r , County A t t o r n e y , B i l l i n g s , Montana
R o b e r t W a l l e r a r g u e d , Deputy County A t t o r n e y , B i l l i n g s ,
Montana
Submitted: November 1 7 , 1980
Decided: April 20, 1981
Filed:
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Anthony Rodriguez appeals his conviction of deliberate
homicide following a jury trial in the Yellowstone County
District Court. He was sentenced to a term of 40 years
imprisonment.
The defendant challenges the transfer of his case from
Youth Court to District Court, the sufficiency of the evidence
to convict him, and the trial court instructions to the jury
on the statutory mental states "purposely" and "knowingly."
In addition, he faises several collateral issues relating to
pretrial matters. We affirm.
Early on the evening of July 14, 1979, Rodriguez, age
17, entered Al's Tavern in Billings, Montana, accompanied by
Tommy Garcia, age 27. Mike Lave, age 43, was seated at the
bar next to the decedent Clarence Bickerstaff, age 53.
According to the defendant, Lave pointed at him, told him to
leave, and shoved him out the door. Garcia left with Rodriguez.
Rodriguez returned a short time later with his uncle,
Jimmy Joe Nava, Garcia, and a third man, Dean Hodges. The
bartender, Joe Chavez, ordered Nava to get out of the bar
because he was not welcome there. Chavez, assuming that
Nava, Rodriguez and their companions would leave, turned his
back on them while getting beer from the bar cooler. In
that instant, a fight broke out between Nava and Lave. How
the fight started and who started it is disputed.
As Clarence Bickerstaff, who had been seated next to
Mike Lave at the bar, started to get off his stool, the
defendant grabbed him. The two fell to the floor. Bickerstaff
wound up lying on his back on the floor. Rodriquez was on
top of him with his knees straddling Bickerstaff's chest.
Garcia and David Lave (Mike Lave's brother) testified that
they saw defendant grab Bickerstaff by the hair and beat his
head several times against the concrete floor. Defendant
testified that he grabbed Bickerstaff to prevent him from
attacking Nava (Rodriquez's uncle) who was fighting with
Mike Lave, and that he and Bickerstaff "slipped" to the
floor. He contends that he grabbed Bickerstaff on both
sides of the collar and hit the back of the victim's head on
the floor three times while Bickerstaff fought back with his
fists.
David Lave testified that he saw blood "gushin" from
Bickerstaff's head. After the fight was over, Lave testified
that Bickerstaff lay lifeless in a pool of blood on the
floor. He was rushed to the hospital where he underwent
surgery for epidural hematoma. Brain wave studies conducted
by the hospital indicated cerebral death. The artificial
respirator was disconnected and Bickerstaff died. At trial,
Dr. Schwidde, M.D., testified that the victim had died from
severe wounds to the head and the brain.
On July 24, 1979, defendant voluntarily surrendered to
the authorities. He was placed in jail, but was not taken
before the magistrate until some 20 days later. In the
meantime, on July 31, 1979, the State filed a motion with
the District Court to transfer prosecution of the case from
Youth Court to District Court. He appeared before the
Justice of the Peace on August 13, 1979, the day thc District
Court heard the State's transfer motion. Before this hearing,
counsel for the defendant would not permit the defendant to
be interviewed by a Youth Court Probation Officer or to be
examined by a psychologist. On September 5, 1979, the District
Court granted the motion and ordered defendant to be tried
as an adult.
The District Court set bail at $25,000, but specified,
over defense objections, that at least $10,000 had to be in
cash,
We first consider whether the defendant's case was
properly transferred from Youth Court to District Court.
Upon advice of his lawyer, defendant refused to consent to
an interview with either the Youth Court Probation Officer
or with a psychologist. Therefore, the probation officer
could not recommend for or against a transfer, and so
advised the District Court. Defendant contends that in
ordering the cause to be transferred, the District Court
relied on the fact that defendant refused to be interviewed,
and therefore, that the court placed the burden on him to
justify the continuation of his case in Youth Court. Placing
this burden on him, he claims, would force him to waive his
right against self-incrimination.
That is not the case here. The District Court did not,
in ordering transfer of the case from Youth Court, rely on
the fact that defendant refused the interviews. Rather, he
based his determination on consideration of the statutory
factors set out in section 41-5-206(1), MCA, which provides
the framework for consideration of transfers from Youth
Court to District Court.
Under this statute, the Youth Court may transfer
prosecution of a criminal homicide to District Court, if the
youth is at least 16 years old. The statute also requires
that the District Court must find reasonable grounds to
believe: (1) that the youth committed the alleged act; (2) that
the seriousness of the offense and protection of the community
require treatment of the youth beyond that afforded by
juvenile facilities; and (3) that the alleged offense was
committed in an aggressive, violent, or premedicated manner.
Section 41-5-206 (1)(d), MCA.
In addition to these requirements, section 41-5-206(2),
MCA, directs the court, in reaching its decision to consider:
(a) the sophistication and maturity of the youth; (b) the
youth's past record and history; and (c) the prospects for
adequate rehabilitation of the youth through the facilities
at the disposal of the Youth Court and the prospect for
adequate protection of the public.
The District Court memorandum, which accompanied the
transfer order, considered all of the factors in section 41-
5-206 (1)(d) and (2), MCA. The court considered each of the
three factors in section 41-5-206(1)(d) and found that they
mandated transfer to District Court. The court considered
each of the factors in section 41-5-206(2). Nothing in the
record indicates that the Youth Court transferred the defendant's
case to District Court because the defendant refused to
submit to interviews and examinations. To the contrary, the
case was transferred based on evidence and considerations
independent of defendant's refusal to be interviewed or
examined.
It is true that the Youth Court did not make specific
findings of fact and perhaps that is the preferable practice.
But it is sufficient if the record shows that each factor
was seriously considered. In Re Stevenson (1975), 167 Mont.
220, 538 P.2d 5. We will not assume, based on the bald
allegation of the defendant, that his cause was transferred
to District Court in retaliation for his refusal to cooperate
with the Youth Court judge in consenting to the interviews.
Once the Youth Court was refused access to the requested
interviews, the only source of information he could rely on
was that coming from other than the defendant. The record
shows that in doing so, the trial court considered each of
the factors set out in section 41-5-206.
Defendant next contends that the evidence fails to show
beyond a reasonable doubt that he caused the victim's death.
Although he admits slamming the victim's head against the
floor, he claims he only slammed the back of the victim's
head against the floor, and therefore he could not have
caused the victim's death because medical evidence established
that the cause of death came about from blows to the side of
the victim's head (the right eye and right ear). Defendant
claims there is no direct evidence that he struck the victim
on the side of his head or near his eye. Further, he argues
that it would have been physically impossible for him to
turn the victim's head so far to the side that the right eye
and right ear were slammed against the floor. It follows,
defendant insists, that he could not have killed the victim.
He speculates that the fatal blow was inflicted by a flying
pool stick or barstool. He concludes that at &he very least
was
there/a reasonable doubt that he inflicted the fatal blow.
Defendant's view is based on his claim that the evidence
shows only that he slammed the back of the victim's head
against the floor. We need not confine ourselves to defendant's
view of the evidence, however. Defendant admitted, and
several witnesses testified, that he slammed the victim's
head against the floor. The testimony of these witnesses was
not qualified by a declaration that they saw defendant
slamming only the back, and not the side, of the victim's
head against the concrete floor.
Nor can we take judicial notice, as defendant asks us
to do, that it was physically impossible for him to inflict
the lethal blow to the side of the victim's head. This
claimed physical impossibility is not "within the common
knowledge of us all" as the defendant insists. To take this
kind of judicial notice, we would be required not only to
possess anatomical expertise that we do not have, but also
to invade the province of the jury to decide the facts based
on the evidence before them.
The evidence is sufficient to permit any rational trier
of fact to find that defendant inflicted the deadly blow or
blows. See, Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560; State v. Duncan (1979), Mont .
, 593 P.2d 1026, 1030, 36 St.Rep. 748.
But the evidence
was
does not unequivocally establish that defendant/sitting on the
victim's shoulders or was in any way preventing t.he
victim's head from being twisted, as it was repeatedly slammed
onto the concrete floor. The evidence presented a jury
question to determine if the defendant had caused the victim's
death. The jury found that he had.
Defendant next argues that the statutory definitions of
"purposely" and "knowingly" contained in the deliberate
homicide statute are constitutionally deficient because
they allow conviction of deliberate homicide on less than a
specific intent to kill. We have previously considered and
rejected that argument. See, State v. Coleman (19791,
Mont . , 605 P.2d 1000, 1054-1056, cert.den., - U.S.
, 100 S.Ct. 2952, 64 L.Ed.2d 831. The jury was given
the instructions which we upheld in Coleman. We again
uphold them today.
Defendant also raises several issues on pretrial matters.
He claims that he was not brought to a magistrate "without
unnecessary delay" within the meaning of section 46-7-101,
MCA; he claims that the District Court could not lawfully
require that he post a $10,000 cash bond in addition to
posting a $15,000 bond in another fashion; and he claims
that he was denied due process because the trial court
denied his request that he attend a preliminary hearing
without handcuffs and.prison garb. Defendant has in no way
shown that he was prejudiced at trial because of any claimed
error, and for this reason alone, we reject his contentions.
Section 46-7-101, X:A, expressly requires a defendant
to be brought to a magistrate for an initial hearing "without
unnecessary delay." Under sections 41-5-301, et seq., MCA,
of the Youth Court Act, a juvenile need not be brought immediately
before a judge for an initial appearance. Although defendant
has shown us no prejudice because of this lapse of 20 days
before his arraignment, we nonetheless strongly disapprove
of any deliberate attempt by the State to avoid an arraignment
"without unnecessary delay" by first arresting and holding a
juvenile under the Youth Court Act for a sustained period of
time, and then later attempting to prosecute the juvenile as
an adult. We will, in the future, closely scrutinize these
situations. If the defendant can show prejudice or a deliberate
attempt by the prosecution to circumvent a speedy arraignment,
we will not hesitate to fashion an appropriate remedy. See,
for example, State v. Benbo (1977), 174 Mont. 252, 570 P.2d
894.
The defendant next argues that in ordering that h i s
$25,000 bail bond be comprised of $15,003 by the
normal surety method, and $10,000 - -
in cash, the District
Court violated 1972 Mont. Const, Art. 11, 5 21 and section
46-9-401, MCA. The constitutional provision states that "[alll
persons shall be bailable by sufficient sureties, . . ."
The statute provides in pertinent part that a defendant may
also furnish bail by real estate or by written undertaking.
In application to defendant, that issue is now moot. In
the future, we will closely scrutinize a requirement that
a defendant post all or a substantial part of the bail in
the form of cash. Rarely can a defendant obtain the cash
and the danger is that a cash bail requirement will effective-
ly prevent a person from being free on bail pending trial.
A cash bail requirement may also effectively undermine
the constitutional guarantee of bail by "sufficient sureties"
and the statutory provision of section 46-9-102, MCA, that
"[all1 persons shall be bailable before conviction . . ."
This may well deprive a person of his liberty before trial
and clash with the presumption of innocence, a cornerstone
of our judicial system.
Although trial courts have discretion in setting bail,
as an appellate court we must have a way of determining why
a certain form and amount of bail was set. That is parti-
cularly true in the case of cash bail. If a trial court
believes that it must set a cash bail, we require that the
court make specific findings to this effect, and that the
findings be included in the record for purposes of review.
It is the duty of the trial courts to give us a record to
review.
Defendant next claims that he is entitled to a new
trial because the trial court refused his motion that he be
permitted to attend his preliminary hearing without handcuffs
and without prison clothes. But defendant has not shown
that his right to a fair trial has been prejudiced. In fact,
it was not until the hearing of this appeal that defendant
first claimed prejudice--an undocumented claim that television
cameramen had been present at the preliminary hearing and
that pictures of the defendant in handcuffs and in jail
clothing had been televised in the Billings area that
night. But during questioning from the bench, defense
counsel could not remember that potential jurors had even
been questioned about their knowledge of the television
broadcast. The record, therefore, fails to show any
prejudice to defendant.
Although we find no prejudice here, we remind the
trial courts that they have a duty to avoid potential
prejudice caused by the appearance of a defendant at trial
or during preliminary appearances. We have opened up the
courts to the news media, including picture taking and
television cameramen. With this goes the chance that pretrial
publicity, including pictures of a defendant in jail or
prison clothes and handcuffed, can affect his right to a fair
trial. The defendant is presumed innocent and it is demeaning
to haul him into court in jail clothes and handcuffed. Surely
other arrangements can be made when defendants who are still
in custody must appear in court. This Court has seen pictures
of defendants in jail clothes and in handcuffs displayed on
the front pages of major newspapers in this state. We have
given the news media the right to take the pictures, but we
have not given the trial courts the right to require the
defendant to appear in jail clothes and handcuffed. We urge
the trial courts to stop this practice and to order
the custodial officials to bring defendants into court dressed
in their own clothes and not handcuffed. The inconveniences
to the custodial officials cannot override the defendant's
right to fair treatment when appearing in court.
Defendant has not, however, shown how he was prejudiced
at his trial because of the operation of these rules. We
a r e t o o busy t o e n t e r i n t o l e n g t h y l e g a l d i s c u s s i o n s
when t h e d e f e n d a n t ' s r i g h t t o a f a i r t r i a l h a s n o t been
i n f r i n g e d i n a n y way.
The judgment o f t h e D i s t r i c t C o u r t i s a f f i r m e d .
W e Concur:
Chief J u s t i c e
,
' Justices