No. 81-183
I N THE SUPREME COURT O F THE STATE O M N A A
F OTN
1982
T E STATE O MONTANA,
H F
P l a i n t i f f and Respondent,
VS.
K R W.
AL MORGAN,
D e f e n d a n t and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e E i g h 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 G a l l a t i n
Honorable J o s e p h B. Gary, J u d g e p r e s i d i n g .
Counsel of Record:
For Appellant:
McKinley Anderson a r g u e d , Bozeman, 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
Mike McGrath 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
Anne Sheehy, I n t e r n , a r g u e d , O f f i c e o f A t t o r n e y G e n e r a l ,
H e l e n a , Montana
Donald E. White, County A t t o r n e y , Bozeman, Montana
R o b e r t T h r o s s e l , Deputy County A t t o r n e y , a r g u e d , Bozeman,
Montana
S u b m i t t e d : F e b r u a r y 22, 1982
Decided: J u n e 1 8 , 1982
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.
Defendant Karl Morgan appeals from a conviction of
negligent homicide following a trial before a jury in the
~ighteenthJudicial District, Gallatin County. He presents
the following issues for review:
(1) Whether the motion to suppress the evidence of the
defendant's blood alcohol test should have been granted.
(2) Whether the County Attorney's statement to the
jury regarding the legal rate of intoxication in Montana,
which was not included in the instructions to the jury, was
prejudicial to the defendant.
(3) Whether the court has the power to order the
defendant to make restitution to the survivors of the accident.
We affirm in part, vacate and remand in part.
On August 12, 1980, Karl Morgan left work about 5:00
P.M. and went to the MSU gym where it was his custom to
workout and take a sauna. Morgan left the gym between 6:00
and 6:30 P.M. and on his way home stopped at a Bozeman bar,
the Cat's Paw. He testified that he drank four drinks of
scotch and water. After 7:30 P.M. he left the bar and
started for home, westbound on old Highway 10.
Between 7:00 and 8:00 P.M., Holly Clarkin, her mother
and father, her niece, and her niece's friend left Belgrade,
Montana, to go shopping in Bozeman. Dark clouds had massed
in the summer sky and it looked like rain. The Subaru Holly
Clarkin was driving approached Bozeman in the eastbound lane
of old Highway 10.
Karl Morgan recalled turning on his headlights as he
was about to enter a storm and then a yellow flash. The
next thing he remembered was an ambulance attendant standing
beside his car.
Highway Patrolman Robert Koch was called to the scene
at 7 : 5 5 P.M. Officer Koch found Morgan seated behind the
wheel of his Dodge with the windshield shattered and the
door sprung open. In response to questions, Morgan gave
only a blank stare. Officer Koch also found that Holly
Clarkin's mother and father, Pauline and Edwin Clarkin, were
dead and that the other occupants of the Clarkin vehicle had
received serious injuries.
After finishing his investigation of the accident,
Officer Koch went to Bozeman Deaconess Hospital to obtain
blood from Morgan to determine the alcohol content thereof.
Morgan was taken first to the emergency room and then
to the intensive care unit. Morgan's brother Jerry testified
that he was with his brother in the intensive care unit
between 9 : 0 0 and 9 : 3 0 P.M. and that he had about a five
minute conversation with him. At around 9 : 3 0 P.M. Jerry
Morgan was asked to leave to permit the medical staff to
work on the patient.
It was during this period, at 9 : 5 5 P.M., that Officer
Koch arrived. When Morgan was located, he was being treated
in the intensive care unit where he lay with his eyes closed,
I.V. tubes issuing from his body, and a nurse was in attendance.
Observing the gravity of the situation, Officer Koch sought
the doctor in charge, Dr. Newsome, to inquire about Morgan's
condition, to ask if he could speak to Morgan, and to determine
if the doctor would authorize drawing a blood sample.
According to Officer Koch's testimony he asked the
doctor "if Mr. Morgan was conscious, if he was able to
understand if I would place him under arrest and advise him
of the implied consent law of the State of Montana; and at
that time the doctor said 'he would not be able to understand,
He is unconscious.'" The doctor authorized a nurse to draw
blood, which she did and gave to Officer Xoch. Koch made no
attempt to talk to Morgan.
Dr. Newsome testified that Morgan was coherent and
conscious and that he did not appear to be intoxicated.
Dr. Newsome further testified that he talked to the officers,
and authorized the drawing of a blood sample, but "wouldn't
allow them (officers) to speak with him (Morgan) just at
that time."
The blood sample was sent to the State Investigation
Laboratory for analysis. The results showed a blood alcohol
content of 0.17%.
Whether the motion to suppress the evidence of the
defendant's blood alcohol test should have been granted.
Section 61-8-402, MCA, provides:
"(1) Any person who operates a motor vehicle
upon the public highways of this state shall
be deemed to have given consent, subject to
the provisions of 61-8-401, to a chemical
test of his blood, breath, or urine for the
purpose of determining the alcoholic content
of his blood if arrested by a peace officer
for driving or in actual physical control of
a motor vehicle while under the influence of
alcohol. The test shall be administered at
the direction of a peace officer having reason-
able grounds to believe the person to have
been driving or in actual physical control
of a motor vehicle upon the public highways
of this state while under the influence of
alcohol. The arresting officer may designate
which one of the aforesaid tests shall be
administered.
" (2) Any person who is unconscious or who
is otherwise in a condition rendering him
incapable of refusal shall be deemed not to
have withdrawn the consent provided by sub-
section (1) of this section.
" (3) If a person under arrest refuses upon
the request of a peace officer to submit
to a chemical test designated by the arrest-
ing officer as provided in subsection (1) of
this section, none shall be given. . ."
When Morgan's blood was taken, he was neither under
arrest nor had he been given an opportunity to withdraw his
consent. The taking of the blood could still have been
proper, however, if either of the situations in 61-8-402(2)
occurred. The testimony of Morgan, his brother, and the
attending physician indicate that Morgan was conscious, so
for the taking of the blood sample to have been proper,
Morgan must have been "in a condition rendering him incapable
of refusal."
That provision in 61-8-402(2) has previously been
addressed by this Court. In State v. Mangels (1975), 166
Mont. 190, 531 P.2d 1313, the defendant was convicted of
driving under the influence of alcohol. While at the hospital,
Mangels appeared confused and was suffering from abrasions
and contusions. At the request of a highway patrolman, a
nurse took a blood sample. Mangels was not informed of the
reason for the blood test or placed under arrest. The
highway patrolman did not attempt to talk to Mangels. This
Court did not allow the evidence of the blood test because
the agreed facts did not indicate that the defendant's
physical condition was so unstable that questions by the
patrolman would have been injurious. This Court established
a standard to determine if an officer has abused his discretion
in determining if the person was incapable of refusing the
test. "Here, we only require that the capacity be determined
on the basis of the best evidence which is reasonably available
to the officer." Mangels, 166 Mont. at 194, 531 P.2d at
1315. The highway patrolman in Mangels did not meet the
standards set forth by this Court.
This Court in State v. Campbell (1980), -- Mont.
, 615 P.2d 190, 37 St.Rep. 1337, applied the standard in
Mansels to a defendant who was conscious but was unable to
respond coherently. Campbell was charged with negligent
homicide. In allowing admission of the blood test, this
Court stated:
"In Mangels the officers only had evidence
of confusion on the part of the defendant,
minor injuries, and did not attempt to ques-
tion the defendant. Here, the officers ob-
served that Campbell was seriously injured
and in great pain, were advised by a nurse
that it would be better not to try to talk
to him, and could not get him to respond co-
herently to questions when they did talk with
him. Given this evidence available to the
officers, it appears they properly determin-
ed that Campbell was in a condition render-
inq him incapable of refusing to consent to
a Glood test," Campbell, 615 P.2d at 195,
37 St.Rep. at 1341.
In the present case, there was no evidence that Morgan
was confused or incoherent at the hospital. The testimony
of Morgan, his brother, and attending physician indicate
that he was conscious, coherent, and able to answer questions.
Defendant argues that, if asked, Morgan could have understood
a request for a blood sample.
The highway patrolman saw Morgan at the scene of the
collision. He tried to question Morgan but received only a
blank stare. The highway patrolman knew, two hours later at
the hospital, that Morgan's condition required intensive
care. He could see from a distance that Morgan was lying on
a bed with his eyes closed, that I.V.'s were being administered,
and that a nurse was attending him. When he asked the
doctor if he could talk to Morgan, the doctor wouldn't allow
him to speak with Morgan at that time.
From the information available to the highway patrol
officer, he determined that Morgan was "in a condition
rendering him incapable of refusal" and asked that a blood
sample be taken. It would not have been reasonable for the
officer to have obtained further information concerning
Morgan's condition. The doctor thought that Morgan was in
a serious enough condition that he would not allow the
officer to talk with him. Even though Morgan was conscious
and apparently coherent, his physical condition was serious
enough as determined by his doctor to render him incapable
of refusing to consent to a blood test.
Whether the County Attorney's statement to the jury
regarding the legal rate of intoxication in Montana, which
was not included in the instructions given to the jury, was
prejudicial to the defendant.
On January 6, 1981, a hearing was held on a motion to
suppress the evidence of the blood test. The District Court
judge ruled that the results of the blood test would be
admissible but because the trial was for negligent homicide
and not for driving under the influence of alcohol, an
instruction regarding the statutory presumption of intoxica-
tion would not be given to the jury. Section 61-8-401, MCA,
provides:
"(1) It is unlawful and punishable as provi-
ded in 61-8-714(1) for any person who is under
the influence of:
"(a) alcohol to drive or be in actual physi-
cal control of a motor vehicle upon the high-
ways of this state;
" ( 3 ) In any criminal prosecution for a viola-
tion of subsection (1) of this section relat-
ing to driving a vehicle while under the in-
fluence of alcohol, the amount of alcohol in
the defendant's blood at the time alleged, as
shown by chemical analysis of the defendant's
blood, urine, breath, or other bodily substance,
shall give rise to the following presumptions:
"(c) If there was at that time 0.10% or more
by weight of alcohol in the defendant's blood,
it shall be presumed that the defendant was
under the influence of alcohol."
Although the District Judge ruled that the results of
the blood test would be admitted into evidence, he specifically
ruled that:
"The court will not instruct the jury on the
effect of there being a percentage of blood
alcohol in excess of .10 (ten percent (10%)
or more by weight of alcohol) as being a pres-
umption that the defendant was under the in-
fluence of alcohol as provided for in Section
.
61-8-401(3) (c) I
'
During the State's case in chief, Ken Anderson, a
forensic scientist at the State Investigation Laboratory,
testified that the blood taken from Morgan contained .17
grams percent alcohol. He went on to testify that at .17, a
person's driving ability would be obviously impaired, that
such a level would affect speech, hearing, balance, judgment,
reaction time, as well as other motor skills. After taking
into consideration the weight of the defendant, Anderson
estimated that it would take eight and one-half twelve ounce
cans of beer or the same number of one ounce drinks of 80
proof alcohol to reach a .17 result.
After the result of the blood test was admitted and
after the explanation by Ken Anderson as to what the result
meant, the Gallatin County Attorney chose to get before the
jury that Montana has a presumed 'legal rate of intoxication,"
even though the District Court had previously ruled that it
would not give such an instruction to the jury. The "legal
rate of intoxication" first entered the trial during the
cross-examination of Dr. Newsome, the emergency room physician,
by the County Attorney.
"Q. You are familiar with blood alcohols,
are you not?
"A. Yes.
"Q. And .17, is that considered a very high
blood alcohol?
"A. Moderately high, yes.
"Q. Are you familiar with the fact that .10
is the legal rate in Montana of intoxication?
"A. Yes."
The County Attorney again referred to the "legal rate
of intoxication" during his closing argument, which in part
provided:
"There's no question but that according to
his testimony that blood alcohol was going
down, and it was down. This is two hours
later. It was down to point one seven which
is almost twice the legal rate of intoxica-
tion in the State of Montana which he tells
us is point one zero. His own doctor knows
that that's almost twice the legal rate of
intoxication in the State of Montana under
our laws. When we are presented with a case
such as this what we attempt to do is --"
(objection)
The only times that the "legal rate of intoxication"
presumption was brought before the jury, it was done by the
County Attorney. Twice he disregarded the judicial holding
of the court that the jury would not be instructed as to a
presumed level of intoxication. This sort of tactic by any
prosecutor in Montana is unacceptable.
Although the conduct by the County Attorney was improper,
it did not prejudice the defendant as to affect his having a
fair trial. There was already sufficient evidence in the
testimony of Mr. Anderson as to what .17% alcohol meant. If
we found that the County Attorney's statements could have
reasonably affected the verdict, we would have reversed
without hesitation. Although the County Attorney's statements
were improper, the evidence already admitted was so extensive
that the defendant was not prejudiced.
Whether the court has the power to order the defendant
to make restitution to the survivors of the accident.
Sentencing of Morgan was deferred for three years with
certain conditions including that he serve 68 days in jail
on a work release program and make payments to the accident
survivors. The District Court in paragraph 5 of its judgment
dated January 19, 1981, ordered in part:
"That the defendant is to make restitution
upon his release from the county jail to the
Clerk of the District Court for the Eighteenth
Judicial District in the amount of $75.00 per
month. The first payment shall be April 5, 1981
and on the 5th of each month thereafter for a
period of three (3) years from the date of this
sentence. Said restitution is to be distribu-
ted among Mary Janelle Saltz, Holly Clarkin and
Rhonda VanDiest,"
Section 46-18-201, MCA, provides the type of sentences
that a District Court can impose. Section 46-18-201(1)(a)
provides for deferment of sentencing with conditions such as
the one received by Morgan.
"(1) Whenever a person has been found guilty
of an offense upon a verdict or a plea of
guilty, the court may:
"(a) defer imposition of sentence. . . The
sentencing judge may impose upon the defendant
any reasonable restrictions or conditions dur-
ing the period of the deferred imposition.
Such reasonable restrictions or conditions may
include:
" (iv) restitution."
In providing for the use of restitution where a court
defers imposition of sentence, the State of Montana is
following the trend of criminal sanctions in the United
States. As stated in the American Bar Association Standards
for Criminal Justice (2d ed. 1980) at 18.112-113:
"The sanction of restitution is currently
receiving unprecedented legislative and
scholarly attention, as the focus of crim-
inal justice reform has begun to shift to
the victim of the crime. A 1978 survey
found that some sixteen states had either
enacted restitution legislation during 1976-
1977 alone or had pending in their legislat-
ures bills that would establish some mechanism
by which offenders would make good the losses
caused their victims. More than fifty loca-
lities have undertaken experimental programs
involving restitution, and a new form of
penal institution has come into use -- the
restitution shelter at which the offender
resides while 'working off' the offense."
We agree with the conclusion set forth in the ABA Standards
at 18.114-115 regarding the class of persons covered and the
limitation to actual damages:
"Basically, case law has established that to
be eligible to receive restitution, a claim-
ant must be within the class of persons in-
jured by the crime. .. A second well recog-
nized limitation is that restitution must
not exceed the actual damages or loss caused
by the offender."
The defendant argues that the three girls injured in the
collision do not fall within the class of persons injured by
the crime. He bases his argument on State v. Stalheim
(1976), 275 Ore. 683, 552 P.2d 829. In Stalheim the wife
and daughter of the plaintiff were killed in an accident.
The plaintiff was not personally involved in the accident,
but sought damages for the loss of both his wife and daughter.
The Oregon statute provided that a defendant shall make
"restitution to the aggrieved party." The Oregon court did
not allow restitution and construed "aggrieved party" to
refer to the direct victim of the crime, and not to other
persons who suffer loss because of the victim's death or
injury. The ABA Standards at 18.114-115 provide with
regard to the claimants as follows:
"As to the breadth of this class, courts have
disagreed, although both sides of the debate
recognize that a remoteness standard should
be employed to disqualify some claimants whose
injuries can be said to have resulted from the
defendant's conduct under a purely 'but for'
test. .
. Traditionally, the claimant had to
be named in the indictment [Marrell v. U. S.,
181 F.2d 981 (9th Cir. 1950)], and restitution
could only be awarded with respect to those
counts in a multicount indictment that result-
ed in conviction [U. S. v. Follette, 32 F.Supp.
953 (E.D. Pa. 1940); People v. Funk, 193 N.Y.S.
302 (1921)l. More recently, courts have split
on whether restitution might be ordered with
respect to counts that did not result in con-
viction but were dropped as a result of plea
bargaining [U. S. v. Buechler, 557 F.2d 1002
(3rd Cir. 1977); U. S. v. Landay, 513 F.2d 306
(5th Cir. 1975)l. It is not the function of
these standards to resolve these questions, but
their existence shows the need for special
legislative attention to the topic of restitu-
tion. . ."
While the Montana statute providing for restitution does not
specifically address this problem, "The Crime Victim's
Compensation Act of Montana" adopted in 1977 does give
helpful guidance. That Act defines "victim" as follows:
"(6) 'Victim' means a person who suffers bodily
injury or death as a result of:
" (a) criminally injurious conduct;
"(b) his good faith effort to prevent crimin-
ally injurious conduct; or
"(c) his good faith effort to apprehend a
person reasonably suspected of engaging in
criminally injurious conduct." Section
53-9-103 (6), MCA.
Under that Act a person who has suffered as a result of
criminally injurious conduct is classed as a victim, without
a relationship to a crime for which a conviction was obtained.
That is a persuasive approach. We hold that the three girls
in the vehicle fall within "the class of persons injured by
the crime," making restitution proper.
As above-mentioned, the second limitation is that
restitution must not exceed the actual damages. The record
here does not show the actual damages caused to each of the
three girls, and we are not able to determine if the restitution
could exceed the actual damages.
Unfortunately, our statutes do not give significant
guidance to the District Court as to the manner in which
restitution is to be applied and as to the limitations which
are applicable. The Uniform Law Commissioners Model Sentencing
and Corrections Act (1979), U. S. Department of Justice,
does set forth in considerable detail various of these
factors to be applied in the application of the restitution
theory. We now conclude that restitution may be allowed by
payment of the money equivalent of loss resulting from
property taken, destroyed, broken, or otherwise harmed, and
also out-of-pocket losses such as medical expenses. (See
-
section 3-601 of the Model Sentencing and Corrections Act.)
In this case, the District Court may provide for payments to
those suffering out-of-pocket losses for medical expenses,
but not in excess of the actual money equivalent.
The District Court did not indicate the out-of-pocket
expenses or losses for which restitution was being made, nor
did it determine the amount of the losses as to each of the
three recipients. It is not possible for this Court to
determine if the order of restitution was proper.
We vacate that part of the sentence which requires
payment of money and remand to the District Court for re-
sentencing on that point. The District Court should hold
such additional hearing as may be necessary, and set forth
in written findings its basis for the restitution order.
Unfortunately, the statutes do not set out standards to be
applied on restitution awards similar to those on costs
which are set out in section 46-18-232, MCA, as follows:
"(2) The court may not sentence a defendant
to pay costs unless the defendant is or will
be able to pay them. In determining the
amount and method of payment of costs, the
court shall take into account the financial
resources of the defendant and the nature of
the burden that payment of costs will impose.
" ( 3 ) A defendant who has been sentenced to
pay costs and who is not in default in the
payment thereof may at any time petition the
court that sentenced him for remission of the
payment of costs or of any unpaid portion
thereof. If it appears to the satisfaction
of the court that payment of the amount due
will impose manifest hardship on the defen-
dant or his immediate family, the court may
remit all or part of the amount due in costs
or modify the method of payment."
We find the foregoing standards are reasonable standards for
application to restitution payments. The District Court
should apply the foregoing provisions to the present fact
situation. In its findings the District Court should include
sufficient facts to show compliance with the foregoing
paragraphs.
Restitution is a theory being applied throughout the
District Courts of Montana. Therefore, we suggest that it
would be appropriate for the Montana Legislature to consider
the various materials on restitution which are available,
including the Model Sentencing and Corrections Act as well
as the American Bar Association Standards for Criminal
Justice, in order to determine if additional restitution
provisions should be added to our statutes.
The judgment is affirmed with the exception of the
vacation of that portion of the sentence requiring the
defendant to begin making restitution upon his release from
the county jail, in order that the District Court may take
such additional steps as are necessary to comply with this
opinion.
W Concur:
e
Chief J u s t i c e
<;&
:- a/JlL-254'
Hon. Gordon B e n n e t t ,
D i s t r i c t Judge, s i t t i n g
f o r M r . J u s t i c e J o h n C.
-- - -
Sheehy
Mr. Chief Justice Haswell, concurring in part and
dissenting in part:
I concur with the majority that evidence of defendant's
blood alcohol test is admissible and that the county attorney's
statements were harmless error.
I dissent from the majority holding vacating the District
Court's judgment and sentence requiring restitution. In my
view the majority have written conditions and limitations on
restitution on the basis of the Uniform Law Commissioners
Model Sentencing and Corrections Act which has never been
enacted in Montana. Additionally, the majority opinion
denies the District Court judgment the presumption of regularity
to which it is entitled by statute. Section 26-1-602(15)
and (17), MCA.
The District Court is empowered to defer imposition of
sentence on condition of restitution. No restrictions have
been imposed on restitution although several legislative
sessions have passed since 1973 where it was first statutorily
authorized. See Chap. 513, Sec. 31, 1973 Session Laws; section
46-18-201(1)(a)(iv), MCA. On the other hand, the Uniform
Law Commissioners Model Sentencing and Corrections Act
imposes a variety of limitations on the sentencing court's
authority to require restitution: a presentence report
documenting the victim's pecuniary loss, limitations on what
kind of losses are subject to restitution, the financial
resources of the offender, etc. As I see it, this Court
should be slow in limiting restitution by judicial decisions
based upon Model Acts that have no counterparts in Montana.
I also object to vacating a judgment and sentence valid
on its face because there is no underlying record which has
been certified to us affirmatively showing the dollar amount
of out of pocket expenses, the dollar amount of loss of each
victim and related matters. This puts the shoe on the wrong
foot. The burden is properly in the defendant to show error
in the restitution order. Here the defendant has made no
showing. Until he does, the ~ i s t r i c tCourt judgment and
sentence should be upheld.
-
Chief Justice
Mr. Justice Daniel J. Shea, concurring and dissenting:
Although I agree with the majority's decision on the
restitution issue, I would order a new trial because the
prosecutor not only violated the trial court's order, but
in doing so, he twice misstated the law to the jury. In
addition, I feel that the Chief Justice, in his dissent to
the restitution holding, has overlooked some basic reasons why
a restitution order, to be acceptable, should be supported by
the evidence.
In holding the prosecutor's violation of the trial court's
order to be harmless error, the majority has simply issued
a bland warning not to do it again. I feel that the only
proper remedy in light of this flagrant violation of the
court's order is to order a new trial. This is the only way
in which the prosecutors will know that they cannot violate
a trial court's order and the defendant's rights with impunity.
The prosecutor's actions were designed to bring the information
to the jury's attention which the court held could not be done.
Further, the information brought before the jury was
incorrect. The prosecutor supplied the doctor and the jury with
the forbidden information by asking the doctor if he was
"familiar with the fact that .10 is the legal rate in Montana
of intoxication." This information, couched in the form of
a question, not only violated the court's order, but it was
also incorrect. A .10 percent blood alcohol level is not
the legal rate of intoxication in Montana; rather, it gives
rise to a presumption that the defendant was under the
in£luence of alcohol. (Section 61-8-401 (3) (c), MCA. ) The
jury could well have believed, because of this misinformation
that a .10 percent blood alcohol level means that a person,
under Montana law, is intoxicated. And the prosecutor's final
argument to the jury again pounded this point home by
arguing that a -10 percent blood alcohol level was the
"legal rate of intoxication in Montana" and that the
defendant's blood alcohol count of .17 percent "is almost
twice the legal rate of intoxication in the State of Montana
under our laws."
It is insufficient for the majority to pass off these
flagrant violations and misstatements of the law by a
statement that ". . . there was already sufficient evidence
in the testimony of Mr. Anderson as to what .17% alcohol
meant.. . ." The undeniable fact is that the prosecutor not
only twice violated the court's order but in doing so also
misstated the effect in Montana of a .10 percent blood
alcohol level. Because the prosecutor twice stated that a
.10 percent blood alcohol level is the "legal rate of
intoxication" in this state, the jury was left with the
impression that as a matter of law, defendant was intoxicated.
We have then two violations of a court order coupled with
two misstatements of the law on which the prosecutor clearly
intended the jury to rely. I cannot state, beyond a reasonable
doubt, that these misstatements of the law did not contribute
to the defendant's conviction. See Chapman v. California
(1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Therefore,
I would vacate the judgment and order a new trial.
I feel some comment on the restitution issue is necessary
because the dissent of Chief Justice Haswell seems to indicate
that in imposing guidelines for restitution, this Court has
arrogated to itself a power which belongs only to the
legislature.
In permitting a district court to impose restitution
as a condition of a deferred sentence (section 46-18-201(1)
(a)(iv), MCA, the legislature has utterly failed to give
any guidelines about when restitution is to be considered
an option. The dissent suggests that only the legislature
can provide guidelines for restitution, and that any district
court judgment imposing restitution is protected by the
disputable presumptions contained in section 26-1-602, MCA.
Subsection 15 of this statute provides a disputable presumption
"that official duty has been regularly performed." And sub-
section (17) provides a disputable presumption "that a
judicial record, when not conclusive, does still correctly
determine or set forth the rights of the parties." I have
no quarrel with these presumptions but they do not address
the problems involved here. Translated, these presumptions
mean only that the party taking the appeal must convince at
least a majority of this Court that the trial court was wrong.
Or put another way, it means that the party defending the
appeal does not have the burden of going forward to establish
that the judgment is correct.
I do not think the legislature intended that district
courts order restitution in any amount they desire; I do
think that the legislature would consider it a laudable
goal to have an evidentiary record in support of any
restitution ordered by the district court. Otherwise, an
order would be nothing less than a fiat, based only on the
personal predilections of the sentencing court. And certainly
this Court, in the exercise of its appellate jurisdiction,
has the right to determine whether an order of the sentencing
court is supported by the evidence.
Restitution can be likened to a civil judgment for
damages. Each element of damages must be supported by the
evidentiary record. And so must each factor on which
restitution is based. In permitting a trial court to
order restitution, it can hardly be said that the legislature
intended that the district court have plenary power to
decide the issue without benefit of appellate review.
By analogy, the legislature has created a cause of
action for wrongful death (section 27-1-513, MCA), but the
elements of recoverable damages are not listed in this
statute or in any other statute. Instead, this Court, by
its decisions,has given meaning to the cause of action by
setting forth in various decisions the items of damages
that are recoverable. I see our function as being no
different here, where we are simply setting forth the guidelines
for district courts to follow when restitution is considered
as a sentencing option. This Court has followed a clear,
if unsteady, policy of requiring the sentencing courts to
set forth their reasons for their sentences. Our failure to
require sentencing courts to justify their sentences would
eventually result in these courts never giving reasons for
their decisions. These courts would simply fall back on the
so-called presumptions of regularity contained in sections
26-1-602(15) and (17), MCA, as their justification for not
explaining their decisions.
This Court was faced with the situation of determining
not whether restitution was proper as a principle, but
whether the amount of restitution was proper under the
facts. As the majority opinion states: "The record here
does not show the actual damages caused to each of the three
girls, and we are not able to determine if the restitution
could exceed the actual damages." Clearly, then, it is
proper for this Court to remand for resentencing, and in
doing so, to set forth guidelines for the district courts
to use when ordering restitution. These guidelines will help
the district courts, the public will have confidence that
the function of restitution is not being abused, and
these guidelines will certainly aid this Court in performing
its function of appellate review.