State v. Ahmed

NO. 95-249
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1996

STATE OF MONTANA,
Plaintiff and Respondent,

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry Moran, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Karl P. Seel, Bozeman, Montana; Steven M. Edwards
and John Houston Pope, Davis, Scott, Weber &
Edwards, New York, New York
For Respondent:
Mike Salvagni, Gallatin Count Attorney, Marty
Lambert, Deputy Gallatin County Attorney, Bozeman,
Montana; Joseph P. Mazurek, Attorney Genexal,
Micheal S. Wellenstein, Assistant Attorney General,
Helena, Montana

Submitted on Briefs: March 14, 1996
Decided: August 26, 1996
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.

Tareque Aziz Ahmed (Ahmed) appeals the order of the
Eighteenth Judicial District Court, Gallatin County, convicting him

of one count of aggravated kidnapping and one count of felony

assault. We affirm.

ISSUES

Ahmed raises numerous issues on appeal. We hold the following
to be dispositive:

1. Was Ahmed denied his right to a fair trial due to the
actual or apparent bias of the District Court?

2. Were Ahmed's convictions for aggravated kidnapping and
felony assault supported by substantial credible evidence?

3. Did the District court abuse its discretion by
considering evidence of flight?

4. Did the District Court abuse its discretion by allowing
testimony regarding a telephone conversation between Ahmed's New
York attorney and a Gallatin County deputy sheriff?

FACTS
There are two versions of the events which gave rise to this

case: the victim's, which the District Court largely found

credible, and Ahmed's, which the District court largely
disbelieved.

The victim, J.F., and Ahmed were both students at Montana

State University in Bozeman when they became romantically involved

in the spring of 1989. They had a stormy, off-again, on-again

relationship due at least in part to Ahmed's admitted jealousy and

possessiveness. J.F. testified that his jealous behavior alienated
several of her friends. She further testified that Ahmed had

2
 threatened suicide if she did not remain with him; that he had

attempted to fight with a male friend whom she had dated; and that

he followed her to work on at least one occasion. Ahmed denied

that any of these specific events occurred. In June 1990, Ahmed

purchased a nine-millimeter handgun. On at least one occasion,
according to J.F., Ahmed threatened to kill her and himself with

the gun. On at least two occasions, J.F. returned to her apartment
to find Ahmed, uninvited, inside waiting for her.

In August 1990, J.F. went to the MSU campus police to report

that Ahmed had followed her to work and was frightening her. She

then went to the Bozeman poiice department and asked that someone
speak to Ahmed about his behavior and direct him to leave her

alone. That same day, she went to the County Attorney's office to

attempt to get a restraining order against him, but was informed

that the law in effect at that time would not allow her to obtain

one because she and Ahmed were neither married nor living together.

Two days later, a Bozeman police officer spoke to Ahmed about

J.F. He advised Ahmed that J.F. no longer wanted to see him and

that he should stop showing up at her apartment or attempting to

contact her in any way. The officer found Ahmed to be very

cooperative; Ahmed expressed surprise at J.F.'s actions in going

to the police; promised not to contact her further; and informed

the officer of his intention to leave Montana for California in the

near future.

According to J.F., she returned to her apartment on September

3, 1990, to find Ahmed waiting for her inside with his puppy. He

3

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,,,,.,...
was armed with the nine millimeter handgun and a Bowie knife, and
informed her that he was going to hold her in the apartment for
three days. He hit her lightly on the face, held the knife to her

neck, and then ordered her into the bedroom to have sex with him.

J.F. testified that she was very frightened and attempted to

be nice to Ahmed to prevent him from hurting her. She testified

that she tried to act like his girlfriend because she was afraid he

would shoot her if she resisted. During the next two days, Ahmed
kept J.F. in the house except for one trip to run errands. J.F.
testified that the only stop she could remember from the trip was

the drive through at the local Burger King, during which he kept

the gun on the seat between them. J.F. also periodically took the
puppy out into the yard to go to the bathroom. She testified that

she made no attempt to escape because she believed Ahmed would

shoot her if she tried to run.

On September 5, 1990, Ahmed went to take a shower. J.F. then

took the gun and knife and went directly to the Bozeman police

department, where she reported the incident. Bozeman police were

dispatched to her apartment, but Ahmed was gone. They also checked

his apartment but could not find him. They then returned to J.F.'s

apartment with J.F. so that she could gather some belongings before

going to a friend's house. At that time, J.F. discovered and gave

to the police a plastic bag from a sporting goods store which

contained a box of 9 mm. ammunition and a receipt from the store.
According to Ahmed's testimony, he went to J.F.'s apartment on

September 4, 1990, to collect some belongings and say goodbye.

4
They spent the day together, going to the grocery store, park, gas

station, and Burger King, before returning to the apartment where
they ordered pizza. Ahmed then spent the night on the couch. The
next day, he took a shower. When he finished, he discovered that

J.F. was gone and he left as well. He testified that they did not

have sexual relations. He further testified that he did not

threaten her with the gun or knife, nor did he attempt to restrain
her movements.

It is undisputed that on the evening of September 4, 1990,

Ahmed caught a ride with friends to Fargo, North Dakota. From

there, he took a bus to New York City. Less than a month later, he

learned that the Bozeman police were looking for him regarding

accusations made by J.F. He hired a New York attorney to "look

into" the situation, but made no attempt to contact the Bozeman

police himself.

In December, 1992, having been unable to locate Ahmed, the

Gallatin County Attorney's office requested that the U.S. Attorney
issue a federal unlawful flight warrant for Ahmed. On March 14,

1994, Ahmed was arrested by the FBI is New York City. He was

brought back to Bozeman where, in a bench trial, he was tried and
convicted of one count of aggravated kidnapping and one count of

felony assault. Ahmed appeals. Other facts will be provided as

necessary to address the issues raised.
STANDARD OF REVIEW

1n an appeal of a criminal case, the evidence will be viewed

in the light most favorable to the prosecution. State v. Martel

5
(1995), 273 Mont. 143, 148, 902 P.2d 14, 17. When determining
whether the evidence presented was sufficient to sustain the
criminal conviction, we ask if, after reviewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a

reasonable doubt. State v. Gould (1995), 273 Mont. 207, 221, 902

P.2d 532; State v. Ross (1995), 269 Mont. 347, 360, 889 P.2d 161,

169.

Our standard of review of a trial court's discretionary

rulings is whether the trial court abused its discretion. State v.
Loh (Mont. 1996), 914 P.2d 592, 596, 53 St.Rep. 226, 228 (citations

omitted). Since the admissibility of evidence is a discretionary

ruling, we also determine whether the District Court abused its

discretion by admitting or refusing to admit disputed evidence.

State v. Bristow (1994), 267 Mont. 170, 173, 882 P.2d 1041, 1043

(citations omitted). The standard of review of a district court's

conclusions of law is plenary, and we will review to determine

whether those conclusions of law are correct. State v. Hansen

(19951, 273 Mont. 321, 323, 903 P.2d 194, 195 (citations omitted).

DISCUSSION

1. Was Ahmed denied his right to a fair trial due to the
actual or apparent bias of the District Court?

Ahmed is a native of Bangladesh. He alleges that he was

denied his right to a fair trial because the District Court was
biased against him due to his race and culture. He alleges that

this bias, while not overt, was manifested in several ways. First,

he contends that the District Court improperly acted as the trier

6
of fact at trial after having previously presided over Ahmed's bail
hearing. Second, he contends that the District Court excessively
injected itself into the trial by questioning witnesses and

terminating a given line of questioning. Third, he contends that
the District Court demonstrated its bias by including an illegal
condition of parole. Fourth, he contends that the District Court's

findings were not supported by substantial credible evidence, and
that this itself was indicative of bias.

A- The District Court as trier of fact.

The same district court judge who presided over Ahmed's bench

trial also had presided over his earlier bail hearing. During the

bail hearing, the District Court heard extensive evidence regarding

Ahmed's alleged flight from justice. The prosecutor presented this
evidence in support of his argument that a high bail was necessary

because of the chance that Ahmed would try to flee the jurisdiction

again. The District Court agreed that Ahmed was a flight risk and
set the bail in the amount requested by the prosecutor.

On appeal, Ahmed points out that whether he had in fact fled

the jurisdiction was a seriously disputed question at trial. He

contends the District Court improperly decided that issue at the

bail hearing. Having allegedly decided this crucial issue

previously, Ahmed contends that the District Court was not a truly

impartial trier of fact at the trial.

Despite the bias he now alleges, however, at no time prior to

this appeal did Ahmed object to having the same judge sit for both
the bail hearing and the trial. Section 46-20-104, MCA, provides
in part:

Upon appeal from a judgment, the court may review the
verdict or decision and any alleged error objected to
which involves the merits or necessarily affects the
judgment. Failure to make a timely objection during
trial constitutes a waiver of the objection except as
provided in 46-20-701(2).

Section 46-20-104(2), MCA. Section 46-20-701(2), MCA, referenced
above, provides:

No claim alleging an error affecting jurisdictional or
constitutional rights may be noticed on appeal, if the
error was not objected to as provided in 46-20-104,
unless the defendant [convicted person] establishes that
the error was prejudicial to his guilt or punishment and
that:
(a) the right asserted in the claim did not exist
at the time of the trial and has been determined to be
retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement
agency suppressed evidence from the defendant [convicted
person1 or his attorney that prevented the claim from
being raised and disposed of; or
(c) material and controlling facts upon which the
claim is predicated were not known to the defendant
[convicted person] or his attorney and could not have
been ascertainedbythe exercise of reasonable diligence.
Section 46-20-701(2), MCA. None of the subsections of § 46-20-

701(2), MCA, apply in this case. Yet despite the fact that Ahmed

is foreclosed from raising this alleged error under the applicable

plain error statute, he nevertheless argues that this Court should

still notice it under the common law "plain error" doctrine.

The common law "plain error" doctrine is an exception to § 46-

20-104, MCA, which allows this Court to remedy instances of

manifest injustice which otherwise would not be addressed. State

v. Arlington (1994), 265 Mont. 127, 152, 875 P.2d 307, 322.

However, this Court will invoke the common law plain error doctrine

8
sparingly, and only in exceptional cases where the failure to
review the claimed error may result in a manifest miscarriage of
justice, leave unsettled the question of the fundamental fairness

of the trial or proceedings, or compromise the integrity of the

judicial process. State v. Finley (Mont. 19961, 915 P.2d 208, 215,
53 St.Rep. 310, 315.

Ahmed argues that the District Court improperly decided the

issue of flight based on evidence previously presented at the bail

hearing. He further argues that this pre-judging of a crucial

issue indicated bias, which in turn indicated that Ahmed did not

receive a fair and impartial trial. These circumstances, he

argues, justify the invocation of the common law plain error

doctrine in this case. We disagree.

Ahmed frames this issue as if the evidence of flight were
only presented at the bail hearing. In fact, the prosecutor

presented the same evidence regarding flight at trial as he had at

the bail hearing, without objection. The District Court properly

considered all the evidence presented at trial in reaching its

verdict. There is nothing in the record to indicate that it relied

upon flight evidence presented at the bail hearing, as opposed to

flight evidence presented at trial. Since the District Court's

findings were based on evidence properly admitted at trial, we
decline to invoke the common law plain error doctrine.

@..A The auestioninq of witnesses.

Ahmed argues that the District Court demonstrated bias against

him by excessively questioning witnesses and by terminating a given

9
line of questions. In particular, Ahmed assigns error to the

District Court's questioning of himself and a clerk from the

sporting goods store. He also assigns error to the District
Court's curtailing of a certain line of questions pursued by the

prosecution.

The District Court questioned Ahmed at trial regarding his

immigration status after Ahmed had invoked his Fifth Amendment

right not to incriminate himself and after defense counsel objected

to the line of questioning. After trial, the District Court
determined that it had erred in questioning Ahmed regarding his

immigration status. It therefore sustained the defense's objection

and ordered the pertinent testimony stricken. Since this was a

bench trial, the manner in which a jury might interpret such

questions was not and is not an issue. Ahmed nevertheless contends

that the mere asking of improper questions regarding his

immigration status is evidence of the District Court's bias against

him.

Racial prejudice or bias against a defendant is a heavy charge

to make against a court. Such bias is, of course, antithetical to

the fundamental proposition that all people are entitled to a fair

trial by an impartial court of law. Such a serious accusation must

be backed by evidence which tends to show its validity, not simply

by mere speculation which cannot be traced to a single fact in the

record.

Although in this case the questions put to the defendant by
the District Court were admittedly improper, there is no evidence

10
that the District Court considered the stricken testimony when
reaching its verdict. If a defendant's objection is sustained, the
offending testimony is stricken from the record, and the jury is

instructed to disregard the evidence (in cases of jury trials), the

error which was committed is presumed to be cured. State v. West

(1992), 252 Mont. 83, 91, 826 P.2d 940, 945. Ahmed fails to offer

any specific evidence of bias to rebut the presumption that the

District Court adequately cured its error. Far from rebutting the
presumption of cure, Ahmed asks this Court to presume bias from the

mere posing of such questions. We refuse to do so. While the

District court admittedly erred in asking Ahmed about his

immigration status, it properly cured its error by sustaining the

defense's objection and striking the offending testimony.
Ahmed also argues that the District Court improperly

questioned a sporting goods store clerk regarding a receipt, found

in J.F.'s apartment, which reflected the purchase of a box of 9 mm.
bullets two days before the incident in question. He also argues

that the District Court erred by curtailing a certain line of

questioning being pursued by the prosecution.
However, Ahmed did not preserve either of these assertions of

error by means of a contemporaneous objection as is required by §

4620-104(2) and § 46-20-701(Z), MCA. "This Court has made it

clear that where a defendant does not object at trial to the

remarks and conduct of the trial judge, the issue will not be

considered upon appeal." State v. Martin (1987), 226 Mont. 463,

467, 736 P.2d 477, 480 (citing State v. Lloyd (19841, 208 Mont.
195, 676 P.2d 229). Because these issues were not properly
preserved for appeal, we decline to address them.

c- The illeqal condition of parole.

When sentencing Ahmed,. the District Court ordered:
Should the defendant be paroled, under no
circumstances may he be released to any state or
territory of the United States. The defendant shall
remain in custody at all times unless, having been
paroled, he is deported.
Further, the defendant shall be ineligible for re-
entry into the United States, and shall be subject to
arrest and imposition of any time remaining on his
sentence should he re-enter the United States or its
territories.

Ahmed contends, and the State concedes, that this is an illegal

condition of parole. It is beyond the jurisdiction of a district
court to order anyone deported without due process or to absolutely

bar re-entry into the United States. Boutilier v. INS (1967), 387

U.S. 118, 87 s.ct. 1563, 18 L.Ed.2d 661; United States v.

Castillo-Burgos (9th Cir. 1974), 501 F.2d 217 (cert. denied, 419

U.S. 1010, 95 S.Ct. 330, 42 L.Ed.2d 284). Ahmed further contends,

however, that the imposition of an illegal condition of parole

indicates the District Court's inherent racial and cultural

prejudice against him.

As stated above, such charges cannot be based on mere

speculation or conjecture. Ahmed is admittedly not a citizen of

this country. He is also, now, a convicted felon and dangerous

offender. Under the circumstances, the District Court might well

believe that justice and society would be best served by deporting

Ahmed after he is paroled. The parole provision is illegal not

because it is racist or biased, but because it does not take into

12
consideration Ahmed's right to procedural due process before
deportation. Because it is illegal, we hold that the subject
parole condition must be stricken. Inclusion of the illegal
provision does not, however, indicate inherent judicial bias

warranting reversal of Ahmed's convictions.

l2.z The lack of evidence as indicative of bias.

Ahmed asserts that the District Court's bias against him is

also illustrated by the fact that it convicted him of felony

charges which the evidence presented did not support. This is
merely another way of saying that the evidence was insufficient to

sustain the convictions. Therefore, we next turn our attention to

the question of the sufficiency of the evidence.

2. Were Ahmed's convictions for aggravated kidnapping and
felony assault supported by substantial credible evidence?

Ahmed argues that his convictions for aggravated kidnapping

and felony assault must be reversed because they are not supported

by substantial credible evidence. Ahmed notes that, since only he

and J.F. were present during the period when the offenses took

place, the case essentially comes down to his word against hers.

He argues that J.F.'s testimony was inherently incredible and

uncorroborated and, as such, is insufficient to support the

convictions.

Ahmed claims that J.F.'s testimony was inherently incredible

because it was contradicted not only by Ahmed's testimony, but also

by her own prior statement made to the police after the events in

question occurred. Ahmed further argues that J.F.'s testimony was

not corroborated by physical evidence such as bruises or scratches
13
from when she claimed he had struck her and held a knife to her

neck. In the face of these inconsistencies and lack of
corroboration, Ahmed argues that the evidence presented was
insufficient to convict him of the crimes with which he was

charged.

As this Court stated in State v. Brogan (19931, 261 Mont. 79,

862 P.2d 19:

[WI here the sufficiency of the evidence is at issue on
appeal in a criminal bench trial, the standard of review
is whether, after reviewing the evidence in a light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime
beyond a reasonable doubt.

Broqan, 862 P.2d at 24. Moreover, the credibility of witnesses and

the weight to be given to their testimony are to be determined by

the trier of fact, and disputed questions of fact and credibility

will not be disturbed on appeal. Broqan, 862 P.2d at 24. See also

State v. Santos (1995), 273 Mont. 125, 131, 902 P.2d 510, 514;

State v. Moreno (lYYO), 241 Mont. 359, 361, 787 P.2d 334, 336. In

the event that the evidence conflicts, it is within the province of

the trier of fact to determine which will prevail. Santos, 902

P.7.d at 514 (citing State v. Flack (1993), 260 Mont. 181, 860 P.Zd

89).
In State v. Maxwell (1982), 198 Mont. 498, 647 P.2d 348, this

Court held that prior inconsistent statements do not necessarily

render a witness's testimony inherently incredible. On the

contrary:
[olnly in those rare cases where the story told is so
inherently improbable'or is so nullified by material
self-contradictions that no fair-minded person could

14
 believe it may we say that no firm foundation exists for
the verdict based upon it.
Maxwell, 647 P.Zd at 351 (quoting State v. Gaimos (19161, 53 Mont.

118, 126, 162 P. 596, 599). Further, the testimony of one witness
is sufficient to establish a fact, Santos, 902 P.2d at 514, and the
absence of corroboration alone is not sufficient reason to distrust
the testimony of a complaining witness. State v. Higley (1980),
190 Mont. 412, 427, 621 P.2d 1043, 1052.
The District Court heard all the evidence presented as well as
the testimony of both J.F. and Ahmed. It noted that J.F. had
explained that her testimony differed, in part, because she could
not remember some of the details she had reported to the police in
her written statement. Noting that the trial took place almost
four years after the events in question, the District Court found
her to be candid in admitting when she simply could not remember
certain details. The District Court included in its findings all
the contradictions of which Ahmed complains, yet it still found
J.F.'s testimony to be more credible than his. Looking at the
evidence in the light most favorable to the prosecution, we hold
that sufficient evidence existed for the District Court to convict
Ahmed of the crimes charged.
3. Did the District court abuse its discretion by
considering evidence of flight?
Ahmed contends that the District Court abused its discretion
by considering evidence regarding how and when he left Montana, and
by construing that evidence as proof of flight. He admits that
flight evidence may be admitted as a circumstance tending to show

15
consciousness of guilt. State v. McKimmie (1988), 232 Mont. 227,

231, 756 P.2d 1135, 1138. But he also contends that flight
evidence is admissible only'if the District Court is satisfied that

the crime charged has in fact been committed by someone. State v.
Pepperling (1974), 166 Mont. 293, 299, 533 P.2d 283, 287.

In this case, the question faced by the District Court was not

who committed~a given crime, but rather whether a crime occurred at

all. Ahmed argues that the District Court employed circular

reasoning. He contends that the District Court concluded that
evidence of flight is admissible to infer consciousness of guilt

because a crime was committed, but then found that a crime was

committed because Ahmed allegedly fled.

Ahmed misconstrues the decision of the District Court. In
order to convict Ahmed of the crimes charged, the State had to show

both that the crimes were committed and that Ahmed was the person
who committed them. Having found from the testimony of J.F. and

other witnesses that the crimes charged did in fact occur, the
District Court properly considered flight evidence in reaching the

conclusion that Ahmed was the one who committed them.

It is undisputed that, on the same evening that J.F. took the

gun and went to the police, Ahmed left the state for Fargo, North

Dakota. He then took a bus to New York City where he remained for

the next three and a half years, knowing that the Bozeman police

department was looking for him. He left Montana on the night in

question without taking his- car or the new puppy he had recently

acquired, and without forwarding his mail. He headed to New York

16
although he had previously informed the police that he intended to

go to California. Based on this evidence, the District Court
concluded that Ahmed had fled from Bozeman to avoid arrest or

prosecution for his crimes.

Ahmed argues that the foregoing does not establish that he was

fleeing from criminal charges because, in reality, no crimes had

occurred. According to him, after spending the day "saying

goodbye" to J.F., he left.the state according to plan. This,
however, is merely a reargument of the sufficiency of the evidence.

The District Court concluded that Ahmed had held J.F. in her
apartment against her will for almost three days and that, in the

course of that time, he caused her reasonable apprehension that he

would seriously injure her with the gun or the knife. As stated

above, the evidence presented was sufficient to justify such a

finding. Having satisfied itself that the crimes alleged did in

fact occur, the District Court did not err in considering flight

evidence in order to infer that Ahmed was conscious of his own

guilt.

4. Did the District Court abuse its discretion by allowing
testimony regarding a telephone conversation between Ahmed's New
York attorney and a Gallatin County deputy sheriff?

When Ahmed learned about the charges pending against him, he

retained a New York attorney in an attempt to have the attorney
"look into" the matter. At trial, a Gallatin County deputy sheriff

testified that he had received several phone calls from Ahmed's

attorney. He further testified that the attorney had inquired into

the circumstances of the charges and indicated a desire to resolve

17
the situation. The deputy sheriff also testified to telling the

attorney that the situation could only be resolved by Ahmed's
returning to Montana to face the charges. The attorney then

indicated that he would advise Ahmed to turn himself in.

Defense counsel objected to this entire line of questioning on
the grounds that it was impermissible hearsay evidence. The State
responded that the testimony was admissible as a statement of a

party-opponent made through an agent, which is not hearsay under

Rule 801(d) (2) (C) and CD), M.R.Evid. We agree with the State.

Rule 801(d) provides, in part:
Statements which are not hearsay. A statement is not
hearsay if:

(2,. Admission
. by a party-opponent. The statement is
offered against a party and is . . (C) a statement by
a person authorized by the party to make a statement
concerning the subject, or (D) a statement by the party's
agent or servant concerning a matter within the scope of
the agency or employment, made during the existence of
that relationship . .

Rule 801(d) (2) (C) and CD), M.R.Evid. Ahmed testified that he had

retained the New York lawyer in an effort to resolve the charges

against him. In attempting to do so, the attorney called the

Gallatin County deputy sheriff to discuss the status of the case.

In so doing, the attorney was acting as an agent for Ahmed. He was

representing Ahmed's interests and following Ahmed's instructions

by exploring how the charges might be resolved. The disputed

conversation took place during the existence of the agency

relationship, and the attorn.ey's comments concerned a matter within

the scope of that relationship. Therefore, the attorney's

18
statements were not hearsay and the District Court properly refused
to exclude them on that basis.
Ahmed also argues that the testimony should have been excluded

because it constituted a violation of his attorney-client

privilege. In Montana, the attorney-client privilege is codified

in 5 26-l-803, MCA, which states:

(1) An attorney cannot, without the consent of his
client, be examined as. to any communication made by the
client to him or his advice given to the client in the
course of professional employment.
(2) A client cannot, except voluntarily, be examined as
to any communication made by him to his attorney or the
advice given to him by his attorney in the course of the
attorney's professional employment.

By its terms, this statutes applies to communications made by a
client to an attorney or vice versa. 1n this case, however, the

attorney made the disputed statements to a third party, the

Gallatin County deputy sheriff.
Ahmed correctly cites Palmer v. Farmer Ins. Exchange (1993),

261 Mont. 91, 861 P.2d 835, as standing for the proposition that an

attorney may not disclose advice given to his client without the

consent of the client. Palmer, 861 P.Zd at 906. However, Palmer

is not on point for two reasons. First, Ahmed's attorney did not

reveal advice he had given to Ahmed, but rather conveyed what he

intended to tell him. Second, Ahmed implicitly consented to the

entire conversation by directing his attorney to attempt to take

care of the charges. In contrast, Palmer concerned an attempt by

a claimant to compel production of confidential files detailing

communications between an insurer and its attorney. Voluntary

19
disclosure to a third party was not the issue in Palmer and,

therefore, it is not on point.
Because the conversations between the Gallatin County deputy

sheriff and Ahmed's attorney involved communications made by an

agent in the course of his agency, they were not hearsay. Because
the conversations took place between the attorney and a third

party, with the client's implicit consent, they are not subject to
the attorney-client privilege. Accordingly, the District Court did

not abuse its discretion by allowing the deputy sheriff's

testimony.
Ahmed raises several other specifications of error regarding

various testimony which he claims the District Court should not

have allowed into evidence. However, a review of the record

reveals that no objections were made at trial to any of the

testimony in question. As articulated in the discussion of issue

l(a), the lack of a contemporaneous objection precludes this Court
from considering an alleged error. Section 46-2-104, MCA;

Arlinqton, 87.5 P.2d at 321. Nor do any of the alleged errors

justify invocation of the common law plain error doctrine. Because

these issues were not properly preserved for appellate review, we

decline to address them.
Affirmed.

20
,
Justices

21
Justice W. William Leaphart delivered the Opinion of the Court.

I dissent. In my view, the trial court's final decision in
this matter was colored by the fact that the court impermissibly
questioned Ahmed as to whether he was an illegal alien while living
in New York. The court pursued this line of questioning despite
Ahmed's invocation of his 5th Amendment right not to incriminate
himself. Although the court, in a post-trial order, sustained
defense counsel's objection to these questions and struck the
testimony, the trial court's findings of fact and conclusions of
law contain references suggesting that the court did consider
Ahmed's testimony as to his immigration status. In Finding #15,
the court noted that "Defendant was 'out-of-status' in the spring
of 1990." In Finding #17, the court stated:
An alien who marries a U.S. citizen may, upon
petition from the citizen-spouse, be allowed to stay in
the U.S. It was likely that the Defendant would have
been permitted to remain in the U.S. if his citizen-
spouse were to file an appropriate petition. Defendant
had extra incentive to win J.F. back during the summer of
1990.
Clearly, despite the fact that testimony as to Ahmed's immigration
status was elicited in violation of his 5th Amendment rights, the
court put much store by the fact that Ahmed was "out-of-status"
with the INS. Furthermore, the court's reasoning that Ahmed's out-
of-status situation gave him incentive to win J.F. back is tenuous
at best. Agent Sprekelmeyer testified that there is no status
granted or changed as a result of an alien's marriage to a U.S.
citizen. Rather, as a matter of grace, the Attorney General may
allow out-of-status aliens to remain in the U.S. if they are making
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application for adjustment of status. Although the Attorney
General does not generally choose to deport out-of-status aliens
married to U.S. citizens, "they are deportable during that period
of time. It If validating his status with the INS were Ahmed's
ultimate goal, it would be more logical to conclude that Ahmed
would seek to cure his out-of-status situation by, as Agent
Sprekelmeyer acknowledged, merely filing an application for
reinstatement as a student. This would certainly be a quicker and
more effective way to reinstate his status than pursuing a forced
marriage with a U.S. citizen when marriage alone would not change
his status.
I would also reverse due to the court's allowing Lt. Cashell
to testify, over objection, as to the contents of a phone
conversation Cashell had with Ahmed's attorney Mr. Gadye. Gadye
placed a call to Cashell to discuss the case. In the context of
discussing how to resolve the charges, Cashell testified that Gadye
said he would advise Ahmed to surrender himself. This hearsay
statement by defense counsel during the course of settlement
discussions had no probative value. It was not an admission by
Ahmed. It was merely a statement by Gadye as to what he intended
to tell Ahmed. There was no evidence that he, in fact, passed this
advice on to Ahmed. Ahmed was put in the position where he could
not rebut this testimony without revealing privileged
communications he had with his counsel. The hearsay had no
probative value and yet was highly prejudicial to Ahmed.
The State argues that Gadye's statement was not hearsay under

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Rule 801(d) (2) (C) and CD), M.R.Evid., which excludes from hearsay
(C) a statement by a person authorized by the party to
make a statement concerning the subject, or (D) a
statement by the party's agent or servant concerning a
matter within the scope of the agency or employment, made
during the existence of that relationship . . . .
Clearly, Rule 801 contemplates the admission of statements which
reflect information or positions that the party (here, the
defendant) has communicated to the agent and has authorized the
agent to discuss. It does not contemplate the admission of
information or advice which is flowing the other direction. That
is, from counsel to client (the defendant). It is one thing to
hold Ahmed responsible for positions that originate with him or
that he has authorized. It is quite another to hold him to
positions taken by another when the position may not have even been
communicated to or discussed with Ahmed. What someone intended to
tell Ahmed is totally irrelevant to what Ahmed in fact knew or
contemplated. The court's reliance on this hearsay testimony in

its findings indicates that it was a significant, and, I submit,
improper, factor in the court's analysis.
For the above reasons, I would reverse the conviction.

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