NO. 79-67
IN THE SUPREMF COURT OF THE STATE OF MONTANA
1980
STATE OF MONTANA,
Plaintiff and Respondent,
EDMOND WILSON DAVISON,
Defendant and Appellant.
Appeal from: District Court of the Eleventh Judicial District,
In and for the County of Flathead.
Honorable James M. Salansky, Judge presiding.
Counsel of Record:
For Appellant:
Daley, Sherlock and Nardi, Kalispell, Montana
Patrick Sherlock argued, Kalispell, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Richard Larson argued, Assistant Attorney General,
Helena, Montana
Ted 0 Lympus, County Attorney, Kalispell, Montana
.
Submitted: April 14, 1980
Decided : JL
U
Clerk
Mr. Chief J u s t i c e Frank I. Haswell d e l i v e r e d t h e Opinion of
t h e Court.
Defendant, Edmond Wilson Davison, was c h a r g e d w i t h t h e
o f f e n s e s of a g g r a v a t e d b u r g l a r y and s e x u a l i n t e r c o u r s e w i t h o u t
c o n s e n t i n t h e D i s t r i c t C o u r t o f F l a t h e a d County. A v e r d i c t of
g u i l t y of e a c h o f f e n s e was r e t u r n e d by t h e j u r y . Defendant w a s
s e n t e n c e d t o 1 5 y e a r s on e a c h c o u n t p l u s an a d d i t i o n a l f i v e y e a r s
f o r u s e o f a k n i f e t o be s e r v e d c o n s e c u t i v e l y f o r a t o t a l o f 35
years. From t h e c o n v i c t i o n and s e n t e n c e , d e f e n d a n t a p p e a l s ,
During t h e e a r l y morning h o u r s of March 2 , 1979, two men
f o r c e d t h e i r way i n t o a mobile home l o c a t e d n e a r t h e c i t y l i m i t s
o f K a l i s p e l l , Montana. C h r i s t i n e Decker and h e r t h r e e y e a r o l d
d a u g h t e r w e r e a s l e e p i n s e p a r a t e bedrooms o f t h e m o b i l e home a t
that time. C h r i s t i n e was awakened a s t h e two men e n t e r e d h e r
bedroom. The room w a s d a r k and h e r head was immediately c o v e r e d
s o t h a t s h e c o u l d n o t see. She t e s t i f i e d t h a t a s h a r p i n s t r u m e n t
w a s h e l d a g a i n s t h e r back and s i d e , b u t no wounds w e r e i n f l i c t e d .
She was t h e n r a p e d by h e r a t t a c k e r and t h e n by t h e accomplice.
H e r head was c o v e r e d d u r i n g t h e e n t i r e a t t a c k . After the attack
t h e men asked h e r where s h e k e p t h e r money. She w a s t h e n t o l d t o
keep q u i e t and f o r c e d t o l i e under h e r bed as t h e two men r e t r e a t e d
from t h e home. The d a u g h t e r s l e p t t h r o u g h t h e a t t a c k .
A f t e r t h e two men l e f t M s . Decker summoned t h e K a l i s p e l l
C i t y P o l i c e and law enforcement p e r s o n n e l a r r i v e d s h o r t l y t h e r e -
after. The v i c t i m was t a k e n t o a K a l i s p e l l h o s p i t a l . The exam-
i n i n g p h y s i c i a n found e v i d e n c e of r e c e n t s e x u a l i n t e r c o u r s e , b u t
no prominent p h y s i c a l wounds.
Ms. Decker w a s n e v e r a b l e t o i d e n t i f y h e r a t t a c k e r s . She
t e s t i f i e d t h a t she locked t h e doors b e f o r e r e t i r i n g t h e n i g h t of
March 2 , 1979. S h e r i f f ' s d e p u t i e s found e v i d e n c e o f f o r c e d e n t r y
into Ms. D e c k e r ' s home and e v i d e n c e t h a t h e r p u r s e had been r i f l e d ,
b u t no p o s i t i v e e v i d e n c e i n d i c a t i n g who had been i n v o l v e d .
Law enforcement investigation ultimately led officers to
2
Victor Gardner. Gardner confessed to the crimes and implicated
defendant. On March 5, 1979, the defendant and his wife were
arrested in Kalispell on an outstanding warrant that related to
a bad check charge. Defendant was taken to the county jail for
questioning.
Defendant was interrogated by deputies Christian and Lamb.
The questioning concerned defendant's involvement in the above-
described rape. Before being questioned, the defendant was given
a "Miranda" warning. During the interrogation, which lasted two
to three hours, defendant denied any involvement with the rape or
the burglary. At one point during the questioning, defendant was
told that if he attempted to leave, he would be knocked back in
his chair. During the interrogation, Christian removed his jacket
and briefly placed it over the defendant's head for the stated
reason of demonstrating to defendant how the victim had been
assaulted. Defendant stated that Christian banged defendant's head
into the wall during this demonstration. Christian denied this.
Later, during the questioning, Christian removed his service
revolver from its holster, unloaded it in front of the defendant,
and returned the revolver to its holster. According to Christian
this was done to protect defendant, himself and Deputy Lamb, be-
cause Christian was concerned that defendant might attempt to take
the revolver. Defendant testified that Christian threatened to
strike him with the empty revolver. Christian denied making this,
or any other threat.
According to Christian's testimony at the suppression hear-
ing, the defendant had been in a highly emotional state during the
interrogation and the interrogation room was very warm. Defen-
dant would not make a statement to Christian or Lamb. Defendant
testified that he was told during the interrogation that if he did
not cooperate with the officers they would do their best to get a
60-year sentence for defendant. Christian testified that he did
not remember mentioning a possible 60-year sentence to the defen-
dant, but Christian did remember that he did not make any threats.
Near the end of the interrogation, a tape recording of
the confession of the codefendant, Victor Gardner, was played to
defendant. At the conclusion of the interview, the defendant was
led from the interrogation room. Defendant testified that ~hris-
tian and Lamb had been "mad" at him and generally belligerent dur-
ing the interrogation.
Before being taken to his cell, the defendant was confronted
by Officer Hawk, and defendant asked Hawk if Gardner had in fact
confessed. Hawk assured the defendant that Gardner had. Hawk
suggested to the defendant that if he had a problem with Lamb and
Christian that he (defendant) might prefer talking with Hawk. De-
fendant agreed to talk with Hawk, and at this time the defendant
made a tape-recorded confession. The defendant was again given his
"Miranda" rights prior to the confession.
Defendant's confession matched Gardner's version and the
victim's version of the crime. Gardner testified that the two men
had broken into the mobile home armed with a knife, had raped the
victim and rifled her purse. At the trial the defendant stated
that he did not break into the victim's home and that he had given
his confession after hearing Gardner's because he was afraid that
"they were going to send me to prison for 60 years."
The jury found defendant guilty as charged and the trial
court judge sentenced him to 35 years at the Montana State Prison.
Victor Gardner, the codefendant, was sentenced to a total of 8
years under a plea bargain arrangement.
Defendant advances three specifications of error:
1. Error in ruling that defendant's confession was ad-
missible.
2. Whether defendant's right to trial was adversely
affected by the imposition of a lesser sentence upon his co-
defendant?
3. Whether the enhancement of defendant's sentence pur-
suant to section 46-18-221, MCA, constitutes a violation of due
process or the proscription against double jeopardy?
Defendant contends that his confession was involuntary,
and, as a consequence, inadmissible at his trial. Both the United
States Supreme Court and this Court have considered the issue of
involuntary confessions in a large number of cases. These cases
make it clear that an involuntary confession may not be used
against a defendant in a criminal trial. This rule is true whether
the defendant was physically or mentally coerced into making the
confession. Leyra v. Denno (1954), 347 U.S. 556, 74 S.Ct. 716,
98 L.Ed 948.
An extensive rationale for this rule is presented in State
v. Allies (1979), Mont. , 606 P.2d 1043 at 1048-49, 36 St.
Rep. 2352 at 2358-59. The purpose for excluding such evidence is
partially because a coerced confession may be untrustworthy, but
more importantly, such confessions violate the guarantee against
self-incrimination as well as the right to due process of law. As
the United States Supreme Court said: "The use of coerced con-
fessions, whether true or false, is forbidden because the method
used to extract them offends constitutional principals." Lego v.
Twomey (1972), 404 U.S. 477, 485, 92 S.Ct. 619, 624, 30 L Ed 2d
618, 625. The courts will not condone the action taken by law
enforcement authorities in securing a coerced confession. Spano
v. New York (1959), 360 U.S. 315, 79 S.Ct. 1202, 3 L Ed 2d 1265.
In reviewing the voluntariness of confessions the emphasis is on
whether the statement is a product of free choice or compulsion.
This emphasis protects the individual's right not to incriminate
himself. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602,
16 L Ed 2d 694.
In Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93
S.Ct. 2041, 36 L Ed 2d 854, the Supreme Court said:
"Rather, 'voluntariness' has reflected an accomoda-
tion of the complex of values implicated in police
questioning of a suspect. At one end of the spectrum
is the acknowledged need for police questioning as
a tool for the effective enforcement of criminal
laws. See Culombe v. Connecticut, supra, at 578-
580. Without such investigation, those who were
innocent might be falsely accused, those who were
guilty might wholly escape prosecution, and many
crimes would go unsolved. In short, the security
of all would be diminished. Haynes v. Washington,
373 U.S. 503, 515. At the other end of the spectrum
is the set of values reflecting society's deeply felt
belief that the criminal law cannot be used as an
instrument of unfairness, and that the possibility
of unfair and even brutal police tactics poses a
real and serious threat to civilized notions of jus-
tice. ' [I]n cases involving involuntary confessions,
this Court enforces the strongly felt attitude of our
society that important human values are saarificed
where an agency of the government, in the course of
securing a conviction, wrings a confession out of an
accused against his will.' Blackburn v Alabama,
.
361 U.S. 199, 206-207. See also Culombe v. Connec-
ticut, supra, at 581-584; Chambers v. Florida, 309
U.S. 227, 235-238." 412 U.S. at 224-225.
The United States Supreme Court has said that the test to
be applied in determining whether a particular confession is vol-
untary or involuntary, is as follows:
"Is the confession the product of an essentially
free and unconstrained choice by its maker? If
it is, if he has willed to confess, it may be used
against him. If it is not, if his will had been
overborne and his capacity for self-determination
critically impaired, the use of his confession
offends due process." Culombe v. Connecticut
(1961), 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L Ed
2d 1037.
If the defendant should contend that his confession was
the product of coercion, then the burden is placed on the State to
show that the defendant knowingly and intelligently waived his
privilege against self-incrimination and his right to counsel. The
State must prove voluntariness by a preponderance of the evidence.
State v Smith (1974), 164 Mont. 334, 338, 523 P.2d 1395, 1397.
.
The issue of voluntariness and admissibility is addressed
in the first instance to the trial court's discretion and depends
upon the totality of the circumstances. Jackson v. Denno (1964),
378 U.S. 368, 84 S.Ct. 1774, 12 L Ed 2d 908; State v. Lenon (1977),
174 Mont. 264, 570 P.2d 901; State v. White (1965), 146 Mont. 226,
405 P.2d 761. If there is substantial credible evidence to support
the trial court's finding, it must be affirmed. State v. Grimestad
(1979), Mont . , 598 P.2d 198, 36 St.Rep. 1245, 1251.
In the present case the defendant points to several in-
stances of police conduct which allegedly rendered the confession
a product of coercion. The first of these is Christian's action
of briefly placing a coat over defendant's head. According to the
testimony, the coat was only left on the defendant's head for a
few seconds and then removed. Christian testified that this action
was taken to demonstrate to the defendant an aspect of the rape
that had been committed. Christian also unloaded his service re-
volver while the defendant was being questioned. The explanation
given for this action was ". . . that I thought it was best for
my safety and his [defendant's]." Despite defendant's testimony
to the contrary, Christian denied threatening to strike defen-
dant with the revolver.
Defendant also contends that he was threatened with a sen-
tence of 60 years if he did not cooperate. Christian testified at
the suppression hearing that he could not remember whether a 60-
year sentence was mentioned. He did state that no promises were
made to defendant. Deputy Hawk, who was just outside the room
where the questioning took place and overheard portions of the in-
terrogation, also testified that no threats or promises were made
regarding a possible sentence in exchange for cooperation. Hawk
and Christian did testify that "self-help" was discussed with the
defendant. Hawk testified as follows:
"A. Well, it is on his conscience, if he wants to
get it cleared up, if he needs some help with alcohol,
if he needs some help with drugs, if he has a drug
problem. These are things that he can only do for
himself. But t h e p l a c e t o s t a r t i s t o g e t t h i s
t a k e n c a r e o f and g e t it o u t of t h e way s o h e c a n
s t a r t fresh. H e i s n o t g o i n g t o be a b l e t o h e l p
h i m s e l f v e r y w e l l w i t h t h i s hanging o v e r him. And
s o t h e emphasis i s on s e l f - h e l p . 'Maybe w e c a n g e t
you some.' And t h e n t h e r e i s t h e t h i n g a s f a r a s
t h e r e were no t h r e a t s made o r p r o m i s e s made, 'How-
e v e r , i f you h e l p u s t h e n it w i l l go i n t h e r e p o r t s
t h a t you were c o o p e r a t i v e , and i f t h e r e i s a ques-
t i o n of "was t h i s i n d i v i d u a l c o o p e r a t i n g w i t h t h e
p o l i c e , was h e t r y i n g t o h e l p h i m s e l f , " t h e answer
would have t o be y e s . ' He was i n m c a s e .
y H e was
n o t i n t h e o t h e r two d e t e c t i v e s ' case. And I t h i n k
t h e y t o l d him t h a t .
"Q. T h a t would be a l l t h e h e l p you would g i v e him
w a s i n d i c a t e whether he w a s c o o p e r a t i v e o r n o t ? A.
That i s c o r r e c t . I f t h e r e i s a q u e s t i o n of a t t i t u d e
o r t h a t s o r t of t h i n g , we can i n d i c a t e t h a t . There
w a s no o t h e r p r o m i s e s o r t h r e a t s made, t o m know-
y
ledge. "
Defendant a l s o c o n t e n d s t h a t t h e p o l i c e used a "good cop-
bad cop" t e c h n i q u e d u r i n g q u e s t i o n i n g , and t h a t t h i s t e c h n i q u e
i s a n o t h e r i n d i c a t i o n of c o e r c i o n . The d e f e n d a n t t e s t i f i e d a t t h e
s u p p r e s s i o n h e a r i n g t h a t Lamb and C h r i s t i a n appeared t o be a n g r y
w i t h t h e d e f e n d a n t when t h e y c o u l d n o t g e t a c o n f e s s i o n , w h i l e
Hawk "was r e a l n i c e . " Hawk and C h r i s t i a n d e n i e d t h a t t h e u s e of
t h e "good cop-bad cop" t e c h n i q u e was p r e a r r a n g e d .
I t must be n o t e d t h a t t h e d e f e n d a n t w a s a d v i s e d o f h i s
"Miranda" r i g h t s on f o u r o c c a s i o n s b e f o r e he gave h i s c o n f e s s i o n .
He was a d v i s e d of h i s r i g h t s a t h i s a r r e s t , a g a i n when d e p u t i e s
Lamb and C h r i s t i a n began q u e s t i o n i n g him, a g a i n b e f o r e h i s c o n f e s -
s i o n w a s t a k e n , and a g a i n as h i s c o n f e s s i o n w a s b e i n g r e c o r d e d .
According t o t h e t e s t i m o n y a t t h e s u p p r e s s i o n h e a r i n g , t h e d e f e n -
d a n t n e v e r asked f o r an a t t o r n e y and he n e v e r a s s e r t e d h i s r i g h t
t o remain s i l e n t . A t t h e t i m e t h e c o n f e s s i o n w a s g i v e n t h e de-
f e n d a n t w a s 2 0 y e a r s o l d , had a t e n t h g r a d e e d u c a t i o n , had r e c e i v e d
a G.E.D. and had p r e v i o u s s e r v i c e w i t h t h e U n i t e d S t a t e s Marine
Corps.
The t r i a l judge concluded t h a t t h e r e was no c o e r c i o n , phys-
i c a l b r u t a l i t y , o r i n t i m i d a t i o n involved i n securing t h e confession.
H e a l s o concluded t h a t , under t h e t o t a l i t y o f t h e c i r c u m s t a n c e s ,
the confession was voluntarily given.
The State has emphasized the fact that Lamb and Christian
did not intend for their actions to be coercive. Also, Hawk and
Christian deny that the "good cop-bad cop" technique was inten-
tionally used.
The intention of the law enforcement officers is irrele-
vant to our inquiry. We are only concerned with whether the con-
fession was coerced under the totality of the circumstances. In
Miranda, supra, the United States Supreme Court acknowledged that
certain techniques used by police questioners, such as the "good
cop-bad cop", can take ". . . a heavy toll on liberty and trade
on the weakness of individuals." 384 U.S. at 455. On the other
hand, this technique, by itself, does not render a confession in-
voluntary. State v. Allies, Mont . , 606 P.2d at 1050, 36
St.Rep. at 2361. In the present case, the interrogation was not
overly long. The trial court found that the interrogation lasted
approximately three hours. The "nice cop" did not play on the de-
fendant's sympathies or subject him to long, continuous question-
ing such as occurred in Spano v, New York, supra.
The timing of the defendant's confessiorl is particularly
perti.nent to this inquiry. At the end of the questioning by
Christian and Lamb the confession of Victor Gardner was played
for the defendant. Shortly thereafter, the defendant asked Hawk
whether Gardner had indeed confessed. When Hawk assured the defen-
dant that Gardner had confessed the defendant gave his own confes-
sion. In other words, it appears that the knowledge of Gardner's
confession triggered the defendant's confession. In addition, the
defendant was twice given his "Miranda" warning by Hawk shortly be-
fore the confession was made. This chain of events would severely
blunt or nullify the charge that the confession was the product
of coercive tactics employed prior to the playing of Gardner's con-
fession.
The defendant also alleges the coercive effect of the
threat that he could receive up to sixty years in prison if he
failed to cooperate. The District Court found that the defendant
was advised of the maximum penalty and that it could be imposed
if he did not cooperate. This finding is supported by substantial,
credible evidence and must be accepted as true. In Territory v.
Underwood (1888), 8 Mont. 131, 135, 19 P. 398, 400, this Court
reversed a conviction where a confession was obtained by a promise
of favor and influence. In Underwood, however, it is apparent
that the confession was directly prompted by promises that the
charges would be dropped or the punishment reduced. The contrary
appears in the present case. At the suppression hearing the de-
fendant was questioned by the Court concerning the "Miranda" warn-
ings, as follows:
"Q. You understood what they meant, didn't you?
A. Yes sir.
"Q. But you chose not to ask for a lawyer? A.
No sir.
"Q. You chose not to remain silent either? A.
Yes sir.
"Q. You decided to spill it, right? A. I de-
cided to cooperate with them, yes sir.
"Q. What made you decide finally to cooperate? A.
After thinking it all over, sir, after what they
told me and after what Deputy Hawk told me and
after listening to what Vic said, I just thought I
better--They said they already had me guilty."
Given all of the factors: the defendant's age and educa-
tion, the length of the interrogation, the number of times the
"Miranda" warning was given, the defendant's acknowledgment that
he understood these warnings, and most important, the triggering
effect of Gardner's confession, it cannot be said that the trial
court abused its discretion in finding the confession voluntary.
We hold that the totality of the circumstances supports the Distrlci,;
Court's finding that the confession was freely given. As a consequence,
it was not error for the confession to be allowed into evidence.
The defendant next contends that his 35-year sentence,
in contrast to Victor Gardner's sentence of eight years under a
plea bargain agreement, constitutes a deprivation of defendant's
right to trial under Art. 11, 526, 1972 Montana Constitution, and
the Sixth Amendment of the United States Constitution. Victor
Gardner confessed to the charges of aggravated burglary and sexual
intercourse without consent. Pursuant to a plea bargain Gardner
pleaded guilty to the rape charge and received an eight-year sen-
tence. After trial and a jury verdict of guilty, the defendant
received a 35-year sentence.
According to the defendant the disparity in the sentences
indicates that he is being punished for insisting upon a trial.
Defendant states in his brief: ". . . the Defendant and all future
criminal defendants will be put on notice that the penalty for the
exercise of the fundamental right to a trial by jury is harsh."
The defendant received less than the maximum 70-year sen-
tence that could have been imposed as a result of being convicted
of sexual intercourse without consent (20 years) and aggravated
burglary (40 years). sections 45-5-503 (2) and 45-6-204 (3), MCA.
Section 46-18-221, MCA, allows a maximum, additional 10-year sen-
tence for offenses committed with a dangerous weapon. There is
no rule that a disparity of sentences given to codefendan
ilarly situated is improper. As was said in People v.-iB~*b&r
"Due to the individualized nature of sentencing,
there is no rule that confederates in crime must
receive equal sentences, nor that failure to im-
pose equal sentences violates equal protection of
the law . . ."
See also State v. Butler (1966), 148 Mont. 46, 417 P-2d 100.
It is defendant's contention that he was punished for going
to trial. This Court has said that a sentence may not be augmented
because a defendant has insisted on his privilege against self-
incrimination. Matter of Jones (1978), Mont . , 578 P.2d
1150, 1154, 35 St.Rep. 469, 474. The same rationale applies to
the constitutional right to a trial. The correct analysis of
this problem is stated in United States v. Peskin (7th Cir. 1975),
"A sentence which reflects punishment for a defen-
dant's availing himself of his right to trial will
be set aside, United States v. Wiley, 278 F.2d 500
(7th Cir. 1960), but a disparity between a sentence
imposed on a defendant who pleads guilty and on
anothzr who Ls convicted after trial is not, stand-
ing alone, enough to establish that the latter has
been punished for exercising a constitutional right.
United States v. Wilson, 506 F.2d 1252, 1259-60
(7th Cir. 1974).
"The trial judge commented at the time of sentencing
on factors which he felt spelled out greater culpa-
bility for Mr. Peskin than his codefendants. We
have no reason to find an abuse of discretion."
In other words, it is not to be presumed that a disparity
in sentences imposed indicates increased punishment for exercis-
ing the right to a trial. A defendant must show abuse of dis-
cretion. In the present case, the sentencing court enumerated
several factors upon which it based the sentence. These factors
include the nature of the crime committed, the fact that defen-
dant's past behavior had been characterized by violent episodes,
and the fact that society needed to be protected from the defen-
dant. This Court has said that a sentence within the maximum
authorized by statute is generally not cruel and unusual punish-
ment. State v Karathanos (1972), 158 Mont. 461, 468, 493 P.2d
.
326. This Court has also said that the extent of punishment is
vested in the sound discretion of the trial court. Petition of
Amor (1963), 143 Mont. 305, 389 P.2d 54. We note that the equit-
ability of a sentence, as opposed to its legality, is a matter for
the Sentence Review Board. State v. Metz (1979), Mont . I
In the present case, the sentence was well within the stat-
utory maximum. The judge outlined his reasons for the sentence
and t h e s e r e a s o n s do n o t i n c l u d e t h e d e f e n d a n t ' s d e c i s i o n t o go
t o trial. The r e a s o n s g i v e n s u p p o r t t h e s e v e r i t y o f t h e s e n t e n c e
given. There was no showing o f a b u s e of d i s c r e t i o n . Consequently,
t h e d e f e n d a n t was n o t d e n i e d h i s r i g h t t o a t r i a l .
P u r s u a n t t o s e c t i o n 46-18-221, MCA, t h e d e f e n d a n t was sen-
t e n c e d t o f i v e a d d i t i o n a l y e a r s f o r t h e commission of r a p e w i t h a
dangerous weapon. Because t h i s s t a t u t o r y s e c t i o n w a s n o t r e c i t e d
i n t h e c h a r g i n g document, d e f e n d a n t c l a i m s t h a t he was s e n t e n c e d
f o r a c r i m e w i t h which h e was n o t charged.
The S i x t h Amendment o f t h e United S t a t e s C o n s t i t u t i o n
states: " I n a l l c r i m i n a l prosecutions, t h e accused s h a l l enjoy
the right . . . to be informed of t h e n a t u r e and c a u s e of t h e
accusation." I t i s w e l l a c c e p t e d t h a t a d e f e n d a n t must be f a i r l y
a p p r i s e d o f t h e c r i m e he i s b e i n g c h a r g e d w i t h and g i v e n a chance
t o be h e a r d . Cole v. Arkansas ( 1 9 4 8 ) , 3 3 3 U.S. 1 9 6 , 201, 68 S.Ct.
514, 92 L Ed 644; S t a t e v. H o l t ( 1 9 4 8 ) , 1 2 1 Mont. 459, 1 9 4 P.2d
651. A s a consequence, t h e c h a r g i n g document must c h a r g e t h e c r i m e
w i t h c e r t a i n t y and p r e c i s i o n . S t a t e v. Hem ( 1 9 2 3 ) , 69 Mont. 5 7 ,
60, 220 P. 80. S e c t i o n 46-11-401, MCA, i s a s t a t u t o r y implementa-
t i o n o f t h e s e g e n e r a l p r i n c i p a l s and t h i s s t a t u t e o u t l i n e s t h e nec-
e s s a r y e l e m e n t s t o be i n c l u d e d i n a c h a r g i n g document.
S e c t i o n 46-18-221, MCA, imposes an a d d i t i o n a l mandatory
s e n t e n c e upon a d e f e n d a n t found g u i l t y o f a n o f f e n s e w h i l e know-
i n g l y u s i n g a dangerous weapon. ( I n t h i s c a s e , t h e d e f e n d a n t used
a knife.) The language of t h e s t a t u t e c l e a r l y i n d i c a t e s t h a t it
i s o n l y i n t e n d e d t o p r o v i d e f o r an enhanced p e n a l t y once t h e de-
f e n d a n t h a s been found g u i l t y of an u n d e r l y i n g o f f e n s e . I n addi-
t i o n , t h i s s t a t u t e i s found i n t h e c h a p t e r o f t h e C r i m i n a l P r o c e -
d u r e Code which d e a l s w i t h t h e s e n t e n c i n g o f c r i m i n a l d e f e n d a n t s .
W e hold t h a t t h e s t a t u t e does not provide f o r a s e p a r a t e , substan-
t i v e offense. For c a s e s from o t h e r j u r i s d i c t i o n s which have c o n s t r u e d
similar statutes as being sentencing rather than criminal statutes
see: State v. Petrich (1978), 21 Wash.App. 100, 583 P.2d 674;
Brown v. District Court (Colo. 1977), 569 P.2d 1390, 1391; and In
re Culbreth (1976), 130 Cal.Rptr. 719, 551 P.2d 23, 25. The in-
stant case does not present a situation where it is uncertain wheth-
er the legislature intended to create distinct offenses such as
in Whitton v. State (Alaska 1970), 479 P.2d 302, 305. Section 46-
18-221, MCA, only applies once a defendant has been found guilty
of the underlying offense.
The Utah Supreme Court addressed a similar problem in State
v. Angus (Utah 1978), 581 P.2d 992. The Utah Court said:
"We have no disagreement with the proposition that
fairness and due process of law require that the
information against him be sufficient to clearly
state the charge and bring him within the operation
of the statutory penalty therefor. But his argu-
ment that the information must specifically set forth
that the enhancement of penalty would be imposed if
he was convicted is without merit. The punishment
for a crime is not and has never been considered a
part of the pleading charging a crime. The infor-
mation is sufficient if it alleges either: (1) that
the defendant is being charged under the enhancement
statute, or (2) that a firearm was used in the
commission of the offense charged in the information.
The trial by the jury is to determine the guilt or
innocence of the defendant. After conviction, the
penalty to be imposed is an entirely separate propo-
sition to be determined by the court as a matter of
law on the basis of the penalty prescribed by the
statutes." 581 P.2d at 995.
In Angus the information specifically alleged that the offense
was committed by use of a firearm and the Court found no denial of
due process.
In the present case the charging document mentions that
the defendant was armed with a knife while committing the crimes
with which he was charged. The jury found the defendant guilty
of aggravated burglary, which is defined, in part, as committing
burglary while being armed with a weapon. Section 45-6-204(2)(a),
MCA. The jury was instructed as to this statute. As a result,
the defendant was not denied due process for lack of notice or
lack of hearing.
The defendant next contends that the additional five years
imposed pursuant to section 46-18-221, MCA, subjected him to
multiple punishments in violation of the double jeopardy clauses
of the federal and state constitutions. In North Carolina v.
Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L Ed 2d 656,
the Supreme Court said that the double jeopardy clause " ...
Protects against multiple punishments for the same offense." It
must be noted, however, that Pearce was concerned with whether
the proscription against double jeopardy was violated when punish-
ment already exacted for an offense was not fully credited in impos-
ing sentence upon a new conviction for the same offense. Pearce
did not deal with whether double jeopardy applies when an enhanc-
ing statute is used to increase the punishment for an underlying
offense. In Simpson v. United States (1978), 435 U.S. 6, 98 S.Ct.
2d
909, 55 ~ . ~ d / 7 0 , Supreme Court was presented with this con-
the
stitutional issue, but the case was decided on other grounds. The
Supreme Court looked to legislative intent and found that Congress
did not intend for the enhancement statute to be used in sentenc-
ing defendants convicted of certain crimes. 435 U.S. at 12-13. We
find that there is no such intent expressed by section 46-18-221,
MCA, which applies to "any offense."
In State v. Foster (1979), 91 Wash.2d 466, 589 P.2d 789,
the Court considered a double jeopardy claim under a similar en-
hancement statute and said:
" . .
. appellant contends that application of the
firearm enhancement statute is violative of his
rights under the double jeopardy clause of the fifth
amendment to the United States Constitution. To
support this contention, appellant cites North Carolina
v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076,
23 L.Ed.2d 656 (1969), in which the United States
Supreme Court stated that the Fifth Amendment 'protects
against multiple punishments for the same offense.'
Neither Pearce nor the cases cited within it to support
this cited proposition are apposite to the challenged
statutory scheme which provides for enhanced penalty
based on the existence of an additional factor--the
use of a firearm. In a recent case which presented
a double jeopardy challenge to a federal statute imposing
an additional penalty for the use of a firearm
while committing a felony, the United States Supreme
Court expressly declined to reach the constitutional
issue. See Simpson v. United States, 435 U.S. 6, 98
S.Ct. 909, 55 L.Ed.2d 70 (1978). We are aware of
no authority which supports appellant's claim of
double jeopardy for this type of enhanced penalty
scheme." 589 P.2d at 797.
We apply the same reasoning to the present case. The
statute in~rol-ved merely an enhancing statute.
is It does not
create or penalize the defendant for a separate offense.
The defendant places a great deal of reliance on Whitton
v. State, supra. In Whitton the Alaska court felt that the legis-
lature may have intended for the enhancement statute to be a sep-
arate distinct offense. They went on to hold ". . . that Alaska's
constitutional prohibition against double jeopardy prevents one
from receiving multiple prison sentences for the same offense."
This Court need not reach the question posed in Whitton,
i.e. may a state impose multiple prison sentences for the same
offense. In Whitton, the court first decided that the enhance-
ment statute might have been intended as a distinct, separate
offense, with an attendant punishment. In the present case, the
enhancement statute does not define a separat1.2,
distinct offense.
Consequently, there is not, under section 46-18-221, MCA, the
imposition of a multiple prison sentence arising from a single
criminal offense. Rather, this statute mandates an increased
prison sentence for a single, specific crime if a dangerous weapon
is used by the de2~ndant. Therefore, no double jeopardy violation
is involved.
Affirmed.
Chief Justice
M r . J u s t i c e D a n i e l J. Shea w i l l f i l e a concurring opinion a t
a l a t e r date.