Xo. 82-474
I i d THE SUPREME COURT O F THE STATE O MONTANA
F
1983
THE STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-vs-
MARTIN K. BAKER,
Defendant 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 Eighteenth J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f G a l l a t i n ,
The H o n o r a b l e W. W. L e s s l e y , J u d g e p r e s i d i n g .
Counsel of Record:
For Appellant:
G o e t z , Madden & Dunn; James Goetz a r g u e d , Bozeman,
Montana
For Respondent:
Hon. Mike G r e e l y , A t t y . G e n e r a l , H e l e n a , Montana
S a r a h Power a r g u e d , A s s t . A t t y . G e n e r a l , Helena
A. M i c h a e l S a l v a g n i , County A t t o r n e y , Bozeman,
Montana
----
Submitted: A p r i l 1 8 , 1983
Decided: August 2 , 1983
--
Clerk
Mr. C h i e f J u s t i c e F r a n k I . H a s w e l l delivered t h e O p i n i o n o f
t h e Court.
Defendant, M a r t l n K. B a k e r , p l e d g u i l t y t o two c o u n t s
o f s a l e of d a n g e r o u s d r u g s on S e p t e m b e r 1 5 , 1 9 8 2 , b e f o r e t h e
Eighteenth J u d i c i a l District Court. Following a sentencing
h e a r i n g on t h e same d a y , Baker was s e n t e n c e d t o t e n y e a r s o n
each count, t h e terms t o run consecutively. Baker f i l e d a
motion for reconsideration and resentencing which was
denied. In addition, t h e c o u r t g r a n t e d t h e S t a t e ' s motion
f o r f o r f e i t u r e of defendant's vehicle. H e now a p p e a l s t h e
s e n t e n c e and t h e f o r f e i t u r e .
D e f e n d a n t and two o t h e r s , Nark Ellsworth and Donald
Pawlack, were arrested at the Ramada Inn in Bozeman on
January 13, 1982, and w e r e charged with criminal sale of
dangerous drugs. The sale had been arranged by an
undercover a g e n t who had contacted Ellsworth about buying
a r o u n d 100 p o u n d s o f m a r i j u a n a .
The "buy" was s c h e d u l e d f o r J a n u a r y 1 3 , 1982. Agents
S k u l e t i c h and Adamo c h e c k e d i n t o t h e Ramada I n n t h a t m o r n i n g
and s h o r t l y t h e r e a f t e r r e c e i v e d a c a l l f r o m E l l s w o r t h . A f t e r
s e v e r a l m e e t i n g s back and f o r t h , d e f e n d a n t Baker was g i v e n
$29,500 i n e x c h a n g e f o r 82 p o u n d s o f marijuana. Upon h i s
a r r e s t , t h e $ 2 9 , 5 0 0 was r e c o v e r e d f r o m B a k e r ' s b o o t .
During t h e c o u r s e of t h e m e e t i n g s , d e f e n d a n t s n o r t e d a
line of cocaine and o f f e r e a some t o Agent S k u l e t i c h , who
declined. T h a t o f f e r was t h e b a s i s o f t h e second count of
c r i m i n a l s a l e of a dangerous drug.
O t h e r a g e n t s were i n another room a t t h e Kamada Inn
listening to the transaction through electronic surveil-
lance. I t is a l l e g e d t h a t a t a p e recording of t h e drug d e a l
was made but never produced. Letters between defense
c o u n s e l and t h e p r o s e c u t o r i n d i c a t e t h a t t h e p r o s e c u t i o n d i d
n o t h a v e a t a p e of t h e c o n v e r s a t i o n b e c a u s e t h e h i g h l e v e l
o f b a c k g r o u n d n o i s e i n t h e room whlch made i t d i f f i c u l t t o
l l s t e n t o t h e c o n v e r s a t i o n s and t h e r e f o r e , " t h e r e i s no t a p e
r e c o r d i n g o f t h e c o n v e r s a t i o n i n t h e room."
Ellsworth pled guilty to his s a l e s c h a r g e and p l e a
bargalned by giving a statement implicating Baker a s the
"main man." Ellsworth was sentenced to a three-year
d e f e r r e a s e n t e n c e w i t h s e v e n t y d a y s i n t h e c o u n t y j a i l and a
$2,000 f i n e .
Conflicting evidence was offered at the sentencing
hearing. E l l s w o r t h t e s t i f i e d t h a t h e had been p u r c h a s i n g
m a r i j u a n a f r o m Baker m o n t h l y s i n c e A p r i l o r May 1 9 8 1 ; t h a t
he had o b t a i n e d o n e , two and f i v e pounds o f m a r i j u a n a f r o m
Baker; and t h a t h e had once purchased a quarter gram o f
c o c a i n e from Baker. Ellsworth further t e s t i f i e d that the
county a t t o r n e y ' s i n v e s t i g a t i o n had b e e n f o c u s e d on Baker
and that when he had been pressured into divulging the
source of his marijuana, he gave Baker's name. Agent
dkuletich's testimony that Baker offered to sell him a
lilgher g r a d e of marijuana o r t h e same g r a d e a t a c h e a p e r
price if Skuletich would come to his "warehouse" in
M l s s o u l a c o r r o b o r a t e s E l l s w o r t h ' s identification o f B a k e r a s
t h e "main man."
Baker, however, testified t h a t he t o l d S k u l e t i c h h e
c o u l d p r o b a b l y buy t h e m a r i j u a n a c h e a p e r i n M i s s o u l a b e c a u s e
h l s $15 a pound t r a v e l i n g f e e would b e e l i m i n a t e d . H e d e n i e d
supplying E l l s w o r t h w i t h t h e m a r i j u a n a b u t a d m i t t e d d e l i v e r -
l n g E P l s w o r t h , Pawlack a n d t h e m a r i j u a n a t o Bozeman f o r $ 1 5
p e r pound o f m a r i j u a n a d e l i v e r e d and a pound of m a r i j u a n a .
O r i g i n a l l y , h e was n o t t o h a v e b e e n i n v o l v e d w i t h t h e "buy."
H e a g r e e d t o r e p l a c e Pawlack when Pawlack became t o o n e r v o u s
t o participate.
J i m Weinberg c o r r o b o r a t e d Baker's testimony. He
testified t h a t on J a n u a r y 6 o r 7 , 1 9 8 2 , h e was a t B a k e r ' s
h o u s e when E l l s w o r t h came o v e r a n d o f f e r e d t o s e l l m a r i j u a n a
t o them and i n q u i r e d i f e i t h e r o f them would g i v e him a r i d e
t o Bozeman i n t h e n e a r future. Joe Staaks also t e s t i f i e d
that Ellsworth had offered to sell large quantities of
m a r i j u a n a t o b o t h h e and B a k e r .
The e v i d e n c e f u r t h e r e s t a b l i s h e d t h a t t h i s was B a k e r ' s
f i r s t o f f e n s e ; t h a t h e had been a p r o f e s s o r a t Montana S t a t e
U n i v e r s i t y and t h e U n i v e r s i t y o f Montana; t h a t h e had t a k e n
s t u d e n t s on a f i e l d t r i p t o Mexico; t h a t h e p r e s e n t l y owned
a rug and textile business in Missoula; and that his
b u s i n e s s r e q u i r e d s e v e r a l t r i p s t o Mexico f o r s u p p l i e s .
At the end of the sentencing hearing, the judge
immediately sentenced Baker, s t a t i n g :
" I am c o n v i n c e d t h a t you a r e a n o p e r a t o r
i n d r u g s and t h a t $29,000 worth of d r u g s
may n o t h a v e b e e n r o u t i n e b u t t h a t y o u ' v e
done it f o r a l o n g p e r i o d o f t i m e . And
t h e a b u s e t h a t comes a n d t h a t you a r e a
d a n g e r t o t h e community a n d t o t h e s t a t e .
The s e l f - a b u s e t h a t comes f r o m t h e u s e o f
d r u g s is i n c a l c u l a b l e . I don't think we
c a n stem i t b u t when w e g e t someone t h a t
d e a l s i n t h i s amount o f d r u g s , w e c a n
c e r t a i n l y s e n t e n c e them a n d I--he is
remanded t o t h e c u s t o d y o f t h e S h e r i f f
who i s n ' t h e r e . "
A m o t i o n f o r r e c o n s i d e r a t i o n was i m m e d i a t e l y f i l e d . A t
t h e h e a r i n g on t h a t m o t i o n , t h e s e n t e n c i n g judge admitted
t h a t h e had received an anonymous phone call on Baker's
behalf prior to the sentencing and that he then made a
single phone call to the former department head of the
S o c i o l o g y Department t o d e t e r m i n e B a k e r ' s l e n g t h of tenure
a t MSU. P r i o r e v i d e n c e had been p r e s e n t e d that indicated
Baker had been a t MSU o n l y o n e q u a r t e r . The phone c a l l e r
stated: "I'm just a f a c u l t y member and I don't want to
r e v e a l my i d e n t i t y , b u t , t h i s man i s a good man. He's never
been i n t r o u b l e b e f o r e and h e ' s b e e n h e r e on campus f o r a
long t i m e teaching . . ." The p r o f e s s o r t o l d t h e j u d g e t h a t
Baker had t a u g h t o n e q u a r t e r , t h a t h e had t a k e n a number o f
t o u r s i n Mexico, a n d t h a t h e had o n e y o u n g s t e r who was i n
t r o u b l e w i t h m a r i j u a n a i n Mexico. The j u d g e s a i d , " t h a t c a n
happen to anybody," and hung up. He also considered a
l e t t e r s e n t on b e h a l f o f B a k e r . A t the sentencing hearing,
the judge p e r s o n a l l y q u e s t i o n e d Baker a t length regarding
t h e s t u d e n t t r i p s t o Mexico. The m o t i o n f o r r e c o n s i d e r a t i o n
was subsequently denied, and the f o r f e i t u r e was granted.
Baker p r e s e n t s t h r e e i s s u e s on a p p e a l :
1. Whether r e s e n t e n c i n g i s r e q u i r e d b e c a u s e t h e j u d g e
personally obtained information off-the-record;
2. Whether the county attorney withheld a tape
recording t o d e f e n d a n t ' s p r e j u d i c e ; and,
3. Whether f o r f e i t u r e o f d e f e n d a n t ' s v a n was p r o p e r l y
ordered.
Defendant a r g u e s t h a t t h e out-of-court c o n t a c t made by
t h e s e n t e n c i n g judge invalidated t h e sentencing procedure,
t h a t t h e r e c o r d d o e s n o t s u p p o r t t h e f i n d i n g s and c o n c l u -
s i o n s of the D i s t r i c t Court, t h a t t h e sentence is g r o s s l y
d i s p r o p o r t i o n a t e t o t h e o f f e n s e s , and t h a t t h e j u d g e ' s e n t r y
of the findings and conclusions some thirty days after
s e n t e n c i n g amounts t o a " p o s t h o c r a t i o n a l i z a t i o n " of his
"earlier, hastily-reached" decision. We agree that the
out-of-court c o n t a c t made by the sentencing judge invali-
d a t e d t h e s e n t e n c i n g p r o c e d u r e , and w e remand f o r r e s e n t e n c -
i n g under a d i f f e r e n t D i s t r i c t Court judge.
This Court has long recognized t h a t a sentencing judge
c a n n o t s e n t e n c e on t h e b a s i s of p r i v a t e , o u t - o f - c o u r t infor-
mation, communications o r investigation. Kuhl v. District
C o u r t ( 1 9 6 1 ) , 1 3 9 Mont. 536, 3 6 6 P.2d 347; S t a t e v. Simtob
(1969), 154 Mont. 286, 462 P.2d 873; State v. Stewart
( 1 9 7 7 ) , 1 7 5 Mont. 286, 5 7 3 P.2d 1138; S t a t e ex r e l . Greely
v. D i s t r i c t C o u r t ( 1 9 7 9 ) , 1 8 0 Mont. 3 1 7 , 590 P.2d 1104.
The trial judge in Stewart personally interviewed
several persons who h a d t e s t i f i e d a t t r i a l a t undisclosed
locations, off the record, and w i t h o u t n o t i c e t o d e f e n d a n t
of the court's intent t o conduct the interviews. Therefore,
t h i s Court d i s t i n g u i s h e d S t a t e v. O r s b o r n ( 1 9 7 6 ) , 1 7 0 Mont.
480, 555 P.2d 509, where the Court had found that if a
d e f e n d a n t was p r o t e c t e d a g a i n s t a s e n t e n c e p r e d i c a t e d upon
misinformation, no due p r o c e s s v i o l a t i o n o c c u r r e d when
p r e s e n t e n c e i n f o r m a t i o n came f r o m a source not subject t o
cross-examination in court. In Orsborn, the defendant was
represented by counsel, had the opportunity to rebut the
information and chose to affirm the information. In
Stewart, we recognized that the trial judge had become
intimately involved in the presentence fact-gathering
process and held that where the judge becomes a fact
gatherer, as w e l l as a f a c t f i n d e r , he s u b j e c t s t h e defen-
d a n t t o an impossible burden. The p r o p e r c o u r s e i s f o r t h e
s e n t e n c i n g judge to delegate investigation responsibilities
t o other officials.
I n Simtob, nothing in the record supported the Dis-
t r i c t C o u r t ' s f i n d i n g t h a t " t h i s is n o t [defendant's] f i r s t
e x p e r i e n c e i n t h i s s o r t of t h i n g . " This Court s t a t e d t h a t
" t h e d i s c r e t i o n of t h e s e n t e n c i n g judge must be based on h i s
view of t h e e v i d e n c e p r e s e n t e d i n open c o u r t . . . and may
n o t be e x e r c i s e d on the basis of unsworn representations
p r i v a t e l y r e c e i v e d by t h e s e n t e n c i n g j u d g e . "
Finally, i n Kuhl, t h e s e n t e n c i n g judge held private
c o n f e r e n c e i n chambers w i t h u n s p e c i f i e d p a r t i e s , a l l i n t h e
a b s e n c e o f b o t h d e f e n d a n t and h i s c o u n s e l .
Here, it is apparent that the private out-of-court
contact by the sentencing judge affected the sentencing
process. During the sentencing hearing, the judge
p e r s o n a l l y q u e s t i o n e d Baker a t l e n g t h a b o u t t h e t r i p h e t o o k
t o Mexico w i t h s t u d e n t s f r o m Montana S t a t e U n i v e r s i t y a n d
e x h i b i t e d a keen i n t e r e s t i n t h a t t r i p :
"Q. [BY THE COURT]: Did you t a k e a t o u r
o f s t u d e n t s when you w e r e h e r e i n 1 9 8 0 a t
Montana S t a t e C o l l e g e ? A. No s i r , I
didn't.
"Q. You d i d n ' t t a k e a n y t h e n ? A. No.
"Q. You w e r e n ' t i n Mexico a t a l l when
you were -- w h i l e -- d u r i n g t h a t summer
or j u s t before that? A. I taught here
t h e s p r i n g of '79.
"Q. I d o n ' t know -- A. No, I d i d n ' t --
you were --
"Q. You w e r e i n t h e s o c i o l o g y d e p a r t -
ment? A. Y e s s i r I was. Those s t u d e n t s
t h e n were t o r e t u r n t o t h e United S t a t e s
on t h e i r own j u s t a s t h e y w e r e -- j u s t a s
t h e y g o t t o Mexico on t h e i r own.
"Q. Did a n y o f them g e t i n j a i l ? A.
None o f them e n d e d up i n --
"a. For u s i n g m a r i j u a n a ? A. No, n o n e
o f them d i d .
"Q. Not a o n e ? A. One o f them, a woman
o f 27 o r 28 y e a r s o l d , t h e woman was
f o u n d i n -- f o u n d t o b e m e n t a l l y -- s h e
was r u n n i n g a r o u n d somewhere i n Mexico.
She was u n s t a b l e and h e r p a r e n t s went t o
g e t her but it turned o u t a f t e r a l o t of
u p s e t by t h e p a r e n t s t h a t t h e woman had a
h i s t o r y o f m e n t a l i l l n e s s t h a t was n o t
d i s c l o s e d t o u s p r i o r --
"Q .Was s h e p u t i n j a i l b e c a u s e o f
drugs? I d o n ' t care about her mental.
A. No s i r , n o t t h a t I know.
"Q. You w e r e n o t -- A. I was n e v e r .
"Q. You w e r e i n c h a r g e o f t h i s g r o u p ?
A. T h i s happened subsequent t o t h e
quarter .
"Q. Oh, I s e e . A l l right. A. She was
down t h e r e a f t e r t h e q u a r t e r had e n d e d . "
The p r i v a t e o u t - o f - c o u r t contact affected defendant's
s u b s t a n t i a l r i g h t t o due process during h i s sentencing. We
remand f o r r e s e n t e n c i n g .
Defendant next charges prejudice based upon the
f a i l u r e of t h e S t a t e t o produce a t a p e recording a l l e g e d l y
made o f t h e c o n v e r s a t i o n w h i c h t o o k p l a c e i n t h e Ramada I n n
during t h e drug t r a n s a c t i o n . Baker a r g u e s t h a t w h i l e a g e n t
S k u l e t i c h t e s t i f i e d t h a t Baker h a d c l a i m e d t o h a v e a "ware-
house" i n Missoula, t h e t a p e r e c o r d i n g would t e n d t o c o r -
r o b o r a t e h i s c l a i m t h a t he never mentioned a "warehouse."
Therefore, the recording would resolve the conflict in
t e s t i m o n y and c o u l d p r o v e t o be e x c u l p a t o r y e v i d e n c e . This
argument i s w i t h o u t merit.
Where t h e r e i s no i n d i c a t i o n t h a t t h e d e f e n d a n t made
any w r i t t e n motion t o t h e D i s t r i c t C o u r t t o r e q u i r e produc-
t i o n o f s u c h a t a p e p u r s u a n t t o s e c t i o n s 46-15-302 o r 46-15-
3 1 1 , MCA, t h e i s s u e i s n o t p r o p e r l y b e f o r e t h i s C o u r t . S t a t e
v . Hansen ( 1 9 8 1 ) , Mont. , 6 3 3 P.2d 1 2 0 2 , 38 S t . R e p .
1541. Aside from this procedural defect, the record
i n d i c a t e s t h e r e i s no t a p e r e c o r d i n g o f the conversation.
I n response t o defense counsel ' s request f o r t h e production
of t h e t a p e , t h e p r o s e c u t o r s e n t t h e f o l l o w i n g r e s p o n s e :
"You a r e c o r r e c t i n t h a t t h e r e w e r e l a w
e n f o r c e m e n t o f f i c e r s a t t h e Ramada I n n i n
a n a d j a c e n t room t o w h e r e y o u r c l i e n t
d e a l t t h e d r u g s t o t h e a g e n t of t h e
a t t o r n e y g e n e r a l ' s o f f i c e . O f f i c e r s Green
and Tymrak o f t h e Bozeman P o l i c e D e p a r t -
ment d i d l i s t e n t o t h e c o n v e r s a t i o n t h a t
t o o k p l a c e i n t h e room b e t w e e n B a k e r ,
E l l s w o r t h a n d t h e S t a t e ' s a g e n t . However,
w e h a v e n o t a p e o f t h e c o n v e r s a t i o n . The
o f f i c e r s t e l l me t h a t t h e r e w a s a l o t o f
e x t r a n o i s e i n t h e room a n d t h a t i t was
d i f f i c u l t f o r them t o l i s t e n t o t h e c o n -
v e r s a t i o n s i n t h e room, t h e r e f o r e , t h e r e
i s no t a p e r e c o r d i n g o f t h e c o n v e r s a t i o n
i n t h e room. I am s u r e t h a t O f f i c e r s
G r e e n and Tymrak w i l l b e more t h a n h a p p y
t o r e l a y t o you w h a t t h e y c a n r e c a l l o f
t h e c o n v e r s a t i o n t h a t took p l a c e i n t h e
room . . ." (Emphasis added.)
T h e r e i s no d u t y on t h e p a r t o f t h e p r o s e c u t i o n t o p r o d u c e
t h a t which d o e s n o t e x i s t . S i n c e t h e r e i s no t a p e , g a r b l e d
o r o t h e r w i s e , d e f e n d a n t ' s c l a i m of p r e j u d i c e from nonproduc-
t i o n t h e r e o f is w i t h o u t merit.
D e f e n d a n t ' s f i n a l argument is t h a t f o r f e i t u r e of his
v e h i c l e p u r s u a n t t o s e c t i o n s 44-12-201 t h r o u g h -203, MCA, is
unconstitutional. H e contends t h a t the statutes' require-
ment t h a t h e f i l e a v e r i f i e d a n s w e r o n t h e f o r f e i t u r e w i t h i n
twenty days a f t e r t h e S t a t e g i v e s n o t i c e of i n t e n t t o i n s t i -
tute forfeiture proceedings forces him to give evidence
which c a n b e u s e d a g a i n s t h i m s e l f o r f o r c e s him t o f o r f e i t
his property. The forfeiture proceeding requires: (1)
i n s t i t u t i o n of f o r f e i t u r e p r o c e e d i n g s w i t h i n f o r t y - f i v e d a y s
of s e i z u r e of t h e p r o p e r t y ; ( 2 ) f i l i n g of a v e r i f i e d answer
by d e f e n d a n t w i t h i n t w e n t y d a y s ; a n d , ( 3 ) hearing n o t less
t h a n t h i r t y d a y s a f t e r t h e v e r i f i e d a n s w e r is f i l e d . Baker
contends t h a t t h i s c o n f l i c t s with t h e due process r i g h t s of
a c r i m i n a l d e f e n d a n t t o remain s i l e n t d u r i n g t h e pendency of
t h e c r i m i n a l proceeding s i n c e t h e s t a t u t e r e q u i r e s t h e pro-
ceeding to be completed long before most criminal cases
would b e t r i e d . T h i s argument f a i l s .
Generally, f o r f e i t u r e s of p r o p e r t y such a s t h e van i n
t h e i n s t a n t c a s e a r e p r e d i c a t e d upon t h e l e g a l f i c t i o n t h a t
t h e S t a t e is p r o c e e d i n g against t h e v e h i c l e through an -
in
rem p r o c e e d i n g b e c a u s e t h e v e h i c l e i t s e l f i s g u i l t y o f b e i n g
used in drug trafficking, bootlegging, or other criminal
activity. The P a l m y r a ( 1 8 2 7 ) , 1 2 Wheat (U.S.) 1, 6 L.Ed.
531, People v. One 1 9 3 3 P l y m o u t h S e d a n D e l u x e A u t o . (1939),
1 3 Cal.2d 565, 90 P.2d 799. The p r o c e e d i n g is c o n s i d e r e d
c i v i l r a t h e r t h a n c r i m i n a l and o n l y a c i v i l burden of proof
n e e d b e e s t a b l i s h e d by t h e S t a t e , e v e n t h o u g h t h e e f f e c t o f
the statute's operation is t o d e p r i v e a d e f e n d a n t of his
p r o p e r t y b a s e d upon i t s p r o b a b l e u s e i n c r i m i n a l a c t i v i t y .
United S t a t e s v. One 1 9 7 0 P o n t i a c 6 7 0 , 2-Door Hardtop ( 9 t h
C i r . 1 9 7 6 ) , 529 F.2d 65.
S t a t u t e s establishing f o r f e i t u r e procedures generally
a t t e m p t t o b a l a n c e t h e r i g h t o f a p r o p e r t y owner t o a h e a r -
ing a f t e r s e i z u r e " a t a meaningful t i m e and i n a meaningful
manner" w i t h t h e p r i v i l e g e a g a i n s t s e l f - i n c r i m i n a t i o n . Once
p r o b a b l e c a u s e is e s t a b l i s h e d t h a t t h e v e h i c l e w a s used in
criminal activity, some courts have permitted immediate
seizure without notice and h e a r i n g a s long as n o t i c e a n d
hearing i n a m e a n i n g f u l t i m e and manner is t h e n p r o v i d e d .
U n i t e d S t a t e s v. K i m a k ( 9 t h C i r . 1 9 8 0 ) , 6 2 4 F.2d 903.
For d i s c u s s i o n s t h a t f a v o r l e a v i n g t h e v a r i o u s a p p l i -
cation of a l t e r n a t i v e s under the s t a t u t e with the d i s t r i c t
court, see, U n i t e d S t a t e s v . U.S. Currency ( 6 t h C i r . 1980),
6 2 6 F.2d 11, c e r t . d e n i e d , 4 4 9 U.S. 993; United S t a t e s v.
$3,799.00 in U. S. Currency (10th Cir. 1982), 684 F.2d 674.
See also, Annot., "Forfeiture of property for unlawful use
before trial of individual offender," 3 ALR2d 738; Annot.,
"Relief to owner of motor vehicle subject to state forfei-
ture for use in violation of narcotic laws," 50 ALR3d 172;
Annot., "Forfeiture of personal property used in illegal
manufacture, processing, or sale of controlled substances
under S511 of Comprehensive Drug Abuse Prevention and
Control Act of 1970 (21 USCA S881)," 59 A.L.R.Fed. 765.
Courts have also held that forfeiture statutes should be
strictly complied with and have forfeited the property where
a defendant failed to prove a verified answer within the
statutory period or to otherwise comply with the statute.
Matter of 1969 Ford Truck, Etc. (1979), 122 Ariz. 442, 595
P.2d 674.
Here, the statutes require a notice of forfeiture
within forty-five days of seizure of the property, Defen-
dant must file a verified answer within twenty days of that.
The proceeding must then be set for hearing "not less than
30 days" after the answer is filed.
We hold that these statutes are not unconstitutional
on their face. Nor are they unconstitutional as applied in
this case. The statutes afford due process through notice
and hearing to the property owner whose possession has been
seized. The statutes do not require that a defendant
incriminate himself in his verified answer. Nor did defen-
dant do so here. Baker filed a general denial. He admitted
ownership of the vehicle but refused to respond to the
allegations that it had been used in criminal activity.
Nor was it necessary to hold forfeiture proceedings
prior t o Baker's trial. The p r o c e e d i n g s m u s t b e set f o r
h e a r i n g " n o t l e s s than" t h i r t y days a f t e r t h e answer. While
a f o r f e i t u r e h e a r i n g p o t e n t i a l l y c o u l d b e s e t t h i r t y o r more
d a y s a f t e r t h e v e r i f i e d a n s w e r was f i l e d and s t i l l b e h e l d
b e f o r e a d e f e n d a n t ' s t r i a l on t h e c r i m i n a l m a t t e r , s u c h was
not the case here. H e a r i n g on t h e f o r f e i t u r e was n o t h e l d
u n t i l a f t e r defendant e n t e r e d h i s p l e a of g u i l t y and had
been sentenced. W e w i l l not hold a s t a t u t e unconstitutional
on t h e p r e m i s e t h a t i t m i g h t b e a p p l i e d a t some f u t u r e t i m e
i n a manner requiring a defendant t o incriminate himself.
W l e a v e a p p l i c a t i o n of
e the statute's alternatives t o the
D i s t r i c t C o u r t s and w i l l r e v i e w t h e i r a c t i o n s a s n e c e s s a r y .
United States v. U.S. Currency, supra. We hold the
f o r f e i t u r e of t h e van p r o p e r i n t h i s c a s e .
C o n v i c t i o n a f f i r m e d b u t c a u s e remanded f o r r e s e n t e n c -
ing .
R-ecf $ s.c & d 4
Chie J u t i e
W e concur:
Justices
Mr. J u s t i c e John C. Sheehy:
I concur. T h e r e c o r d d o e s n o t show a t a p e e x i s t e d .
Mr. Justice Frank B. Morrison, Jr., concurs in part and
dissents in part as follows:
I concur with the majority in vacating the sentence and
remanding for resentencing. However, I dissent from the
majority holding with respect to the tape recording.
The majority opinion quotes the County Attorney's letter
indicating that no tape was made of the conversation in the
motel. I believe that this is refuted by the testimony of
Agent Skuletich given at the sentencing hearing. Agent
Skuletich testified as follows:
"Q. You informed me that there was a tape
recorder?
A. I didn't say there was, I said there was a
microphone in the room and that the tape recorder
itself was located two rooms away.
Q. Didn't you indicate there was a tape recorder
in the drawer
A. No, no I did not.
Q. But, there was a microphone in the room?
A. Yes.
Q. Where was the microphone?
A. It was under the bed.
Q. After you arrested Mr. Baker, you indicated
rather gleefully that, 'We have this on tape'?
A. I don't recall indicating that.
Q. Did you say anything about it, a tape, at that
time?
A. I don't recall saying anything about a tape.
Q. You could have but you just don't recall?
A. I don't recall. ***
Q. Now, where is the tape of the conversation now?
A. I have no idea where it's at. ***
Q. Well, you don't know what happened to the tape,
I take it?
A. I never did see the tape. It was in the -- the
instrument that was used to record it was in
another room. I never seen the tape."
The testimony above-quoted indicates that a tape
recording was made of the conversation. Apparently the
County Attorney felt the conversations on the tape were
garbled. However, production of the tape should be ordered
so that defense counsel is permitted to listen to the tape
and have the opportunity to have the tape examined by an
expert.
I should add that counsel for the prosecution was
questioned at the time of oral argument concerning the
apparent conflict between the County Attorney's letter and
the testimony given at the sentencing hearing. The responses
reinforced my feeling that a tape does exist but that the
position of the County Attorney's office was that the voices
were inaudible. Under these circumstances the defendant must
be given his opportunity to have the tape listened to by a
speech pathologist or other expert trained in unscrambling
garbled language.
Mr. Justice ~ a n i e lJ. Shea:
I concur with Mr. Justice Morrison.
Mr. Justice Fred J. Weber respectfully concurs and
dissents as follows:
I concur in the conclusions of the majority opinion with
regard to the tape recording and the forfeiture of the
defendant's van. I respectfully dissent from the conclusion
on the part of the majority that the private out-of-court
contact affected the defendant's substantial right to due
process during his sentencing and therefore constituted a
basis for remanding for resentencing.
The majority cites several Montana cases as authority
for the conclusion that a sentencing judge cannot sentence on
the basis of private, out-of-court information,
communications or investigation. The majority does not
distinguish between the various cases and the statutes which
have been substantially changed over the years.
As pointed out by this Court in State v. Orsborn (1976),
170 Mont. 480, 555 P.2d 509, in Kuhl this Court was required
to follow the provisions of sections 94-7813 and 7814 R.C.M.
1947 which in substance provided that no affidavit, testimony
or representation could be received by the court in
aggravation or mitigation of punishment unless these matters
had been presented "by the testimony of witnesses examined in
open court." This Court concluded that the district judge
therefore could not consider reports from the police
department, sheriff's records, or other sources because they
had not been presented by the testimony of witnesses in open
court. However, that rule no longer is appropriate. As
pointed out in Orsborn, subsequent to Kuhl these statutory
provisions were repealed. The provisions in effect under
Orsborn were sections 95-2203, 2204 and 2205, R.C.M. 1947
(now sections 46-18-111, 112, and 113, MCA) . The statutes
disclose a distinct change in policy. Section 46-18-113,
MCA, in pertinent part states:
"The judge may, in his discretion, make the
investigative r e p o r t o r ' a r t s of it available to
the defendants or others, while concealing the
identity of persons who provided confidential
information. If the court discloses the identitv A
of persons who provided information, the judge may,
- - discretion, allow the defendant to
in his
cross-examine those who rendered the information."
(Emphasis added)
Under the old statutes as interpreted in Kuhl, testimony was
required by witnesses in open court which guaranteed the
right of cross-examination as to all elements of evidence
received in either aggravation or mitigation of punishment.
In contrast, as enacted in 1967, the present law gives the
district judge the discretion to refuse to make the
investigative report available and to conceal or disclose
identity of persons providing confidential information. In
addition, section 46-18-113, MCA, provides that the judge
may, in his discretion, allow cross-examination by the
defendant if the court has disclosed the identity of persons
who provided information. There is no specific right of
cross-examination under other circumstances.
In making a similar analysis, this Court in Orsborn
referred to Kuhl and stated:
"However, this does not mean that the spirit of
Kuhl is dead. A convicted defendant still has a
due process guarantee against a sentence predicated
on misinformation. The real question before us is
whether defendant received that protection."
The court then concluded in Orsborn that the defendant was
represented by counsel, had the opportunity to rebut the
information and chose to affirm the information, and thus any
danger of utilizing this information in sentencing was
averted. I would apply the Orsborn test to the present case.
Here there initially was an anonymous call from a person
speaking favorably of the defendant. Thereafter the trial
judge called a university professor of his acquaintance. The
details of that telephone conversation with the university
professor were disclosed by the trial judge in open court.
Following that disclosure, the counsel for defendant had
ample opportunity to question the judge and to present any
explanatory information which he deemed to be advisable.
Note that the information obtained by the judge was not
actually significant. At most, as pointed out in the
majority opinion, the information may have triggered
questions about the defendant's trip to Mexico. While such
questions may have been triggered, no misinformation or
prejudicial information is shown to have been obtained. As
stated in Orsborn, the convicted defendant has a due process
guarantee against a sentence predicated on misinformation.
No misinformation has been shown here.
I agree with the conclusion of the majority that the
proper course is for a sentencing judge to delegate
investigation responsibilities to others. Even the trial
judge here admitted that his single phone call may have been
inadvisable.
The majority has concluded that the private out-of-court
telephone contact affected defendant's substantial right to
due process during the sentencing. I am unable to see how
that conclusion is substantiated by the facts.
I believe the majority is setting up a rule which is not
consistent with the procedure provided by the legislature in
section 46-18-113, MCA, where the judge may choose not to
disclose parts of an investigation report to the defendant
and may also choose not to allow cross-examination.
I would hold here that no misinformation was received
and that in fact no information prejudicial to the defendant
was presented by the telephone call and that the due process
g u a r a n t e e d e s c r i b e d i n Orsborn w a s a f f o r d e d t h e defendant. I
would a f f i r m t h e D i s t r i c t C o u r t .