No. 14970
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
THE STATE OF MONTANA,
Plaintiff and Respondent,
VS.
ERNEST BLACKBIRD , a : , a
/c/
ERNEST COURCHANE,
Defendant and Appellant.
Appeal from: District Court of the Eighth Judicial District,
In and for the County of Cascade,
Honorable H. William Coder, Judge presiding.
Counsel of Record:
For Appellant:
Lawrence Anderson argued, Great Falls, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Allen Chronister argued, Assistant Attorney General,
Helena, Montana
J. Fred Bourdeau, County Attorney, Great Falls, Montana
Submitted: March 25, 1980
Decided: 18
Filed:
F F
p!
1~ L,
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
This is an appeal arising out of defendant's conviction
of the crime of bail-jumping pursuant to section 45-7-308,
MCA. Trial was had in the ~istrictCourt of the Eighth
Judicial District, in and for the County of Cascade.
Defendant was originally charged by information with
the crimes of burglary, aggravated burglary, attempted
burglary, and sexual intercourse without consent. After
pleading not guilty to the crimes, defendant was released on
his own recognizance under the condition that he appear for
trial on November 13, 1978, at 9:30 a.m. Defendant, however,
failed to appear for trial on the date and hour scheduled.
Defendant was then charged on November 13, 1978, with the
crime of bail-jumping, a felony, pursuant to section 45-7-308,
MCA. According to that statute, a person commits bail-
jumping if he is set free by court order on the condition
that he will subsequently appear at a specified time and
place and then purposely fails without lawful excuse to
appear at that time and place.
Defendant entered a plea 0 2 cot guilty to the charge,
and a jury trial was set for March 12, 1979. At trial,
defendant argued as one of his defenses, that it was not his
purpose or conscious object to fail to appear for the trial.
The State attempted to rebut this defense with a jury instruc-
tion and the testimony of Barbara Gregovich and Daniel
Donovan. Ms. Gregovich, a deputy clerk for the Cascade
County Clerk's office, testified that she had heard defen-
dant state in a court proceeding with respect to the date
set for trial that, "I have to be there Monday at 9:30.11
Donovan, who was d e f e n d a n t ' s a t t o r n e y on t h e o r i g i n a l c h a r g e s ,
t e s t i f i e d t h a t h e had made c e r t a i n s t a t e m e n t s t o t h e c o u r t
on November 13, 1978, a b o u t d e f e n d a n t ' s l a t e n e s s i n a p p e a r -
ing for t r i a l . Those s t a t e m e n t s r e l a t e d t o a c o n v e r s a t i o n
Donovan had w i t h d e f e n d a n t t h a t morning. Donovan t e s t i f i e d :
" I t o l d t h e judge I had r e c e i v e d a phone c a l l a t
a p p r o x i m a t e l y t e n m i n u t e s t o n i n e t h a t morning
from M r . B l a c k b i r d , and he had a s k e d m e , I be-
l i e v e , when t h e t r i a l w a s . I t o l d him i t w a s a t
9:30 and h e ' d b e t t e r be t h e r e , and I d o n ' t know--
I c a n ' t remember t h e e x a c t r e s p o n s e , b u t I g o t
t h e i m p r e s s i o n t h a t he would t r y t o show up f o r
t r i a l . And t h e r e a s o n I t o l d t h i s t o t h e Judge
was I wanted t h e Judge t o w a i t a n a d d i t i o n a l
p e r i o d of t i m e b e f o r e t h e Judge was g o i n g t o
i s s u e a w a r r a n t f o r h i s arrest and p u t him back
i n jail."
P r i o r t o t h e t r i a l , t h e p r o s e c u t i o n and d e f e n s e c o u n s e l
e n t e r e d i n t o an agreement c a p t i o n e d "Discovery." The a g r e e -
ment p r o v i d e d t h a t t h e p r o s e c u t i o n would produce f o r d e f e n -
d a n t , w i t h o u t t h e n e c e s s i t y o f a c o u r t o r d e r , a l l materials
t h a t were d i s c o v e r a b l e . The agreement t h e n l i s t e d m a t e r i a l s
which had been s u p p l i e d a s o f t h e d a t e of t h e document.
Among t h e i t e m s , I t e m N o . 3 i n d i c a t e d t h a t no v e r b a l o r
w r i t t e n s t a t e m e n t s o f d e f e n d a n t had been f u r n i s h e d . Defen-
d a n t c o n t e n d s t h a t t h e agreement was, i n e f f e c t , a s t i p u l a -
t i o n e n t e r e d i n t o between him and t h e p r o s e c u t i o n t h a t t h e
S t a t e would n o t u s e any v e r b a l o r w r i t t e n s t a t e m e n t s o f
defendant a t t r i a l . I n l i n e with t h i s contention, defendant
o b j e c t e d i n p a r t i c u l a r t o t h e t e s t i m o n y of M s . Gregovich and
claimed s u r p r i s e . However, a f t e r g r a n t i n g d e f e n s e c o u n s e l a
c o n t i n u a n c e and a n o p p o r t u n i t y t o i n t e r v i e w M s . Gregovich,
t h e t r i a l c o u r t admitted t h e testimony.
F i n a l l y t h e S t a t e submitted an i n s t r u c t i o n t o t h e c o u r t
which imputed Donovan's knowledge o f t h e t r i a l d a t e t o
defendant. Over o b j e c t i o n o f d e f e n s e c o u n s e l , t h e c o u r t
gave t h e i n s t r u c t i o n which s t a t e d :
"Notice to attorney is notice to client employ-
ing him, and knowledge of attorney is knowledge
of his client."
The jury found defendant guilty of the crime of bail-
jumping and, on May 7, 1979, defendant was sentenced to ten
years in the Montana State Prison at Deer Lodge, Montana.
Three issues are raised for our consideration upon
appeal:
(1) Whether the trial court erred in admitting the
testimony of Barbara Gregovich in view of the requirements
of section 46-15-303, MCA.
( 2 ) Whether the trial court erred in allowing defendant's
former attorney, Daniel Donovan, to testify regarding a
conversation he had with defendant about defendant's inten-
tion to appear for trial.
(3) Whether the trial court erred in giving an instruc-
tion which imputed knowledge of defendant's former attorney
to defendant.
We find that the third issue is determinative of the
result in this case. Here, the State had the burden of
proving that defendant purposely failed, without lawful
excuse, to appear at the time and date scheduled for trial.
In this connection, the jury was given an instruction con-
cerning one of the essential elements of the crime--namely,
the mental state of the defendant. The instruction imputed
any knowledge or notice on the part of defendant's attorney
regarding the trial date to the defendant. To prove that
defendant had knowledge or notice of the trial date, the
State merely had to prove that his attorney had similar
knowledge.
Defendant objected to the giving of this instruction on
the basis that it was, in effect, a conclusive presumption.
H e c o n t e n d s upon t h i s a p p e a l , c i t i n g Sandstrom v. Montana
(19791, 4 4 2 U.S. 510, 99 S.Ct. 2450, 6 1 L.Ed.2d 39, t h a t t h e
i n s t r u c t i o n had t h e e f f e c t o f l o w e r i n g t h e S t a t e ' s burden of
p r o o f , commenting on t h e e v i d e n c e , and d e n y i n g d e f e n d a n t a
presumption of i n n o c e n c e .
I n considering these contentions, our f i r s t task i s
aimed a t f o c u s i n g upon t h e n a t u r e o f t h e l a n g u a g e c o n t a i n e d
i n t h e challenged i n s t r u c t i o n . Sandstrom, 442 U.S. a t 514;
U l s t e r County C o u r t v . A l l e n ( 1 9 7 9 ) , 4 4 2 U.S. 140, 157-159, 99
S.Ct. 2213, 6 1 L.Ed.2d 777. Paraphrasing t h e i n s t r u c t i o n ,
t h e j u r y was t o l d h e r e , i n u n e q u i v o c a l t e r m s , t o "presume
t h a t a c l i e n t h a s n o t i c e and knowledge i f h i s a t t o r n e y h a s
n o t i c e and knowledge." The j u r y was n o t t o l d t h a t t h e y had
a c h o i c e o r c o u l d i n f e r knowledge from a proven f a c t . The
i n s t r u c t i o n d i d n o t s t a t e , f o r example:
"You a r e i n s t r u c t e d t h a t , i n d e t e r m i n i n g t h e g u i l t
o r i n n o c e n c e o f t h e d e f e n d a n t , you may c o n s i d e r
t h e f a c t s t h a t h i s a t t o r n e y , D a n i e l Donovan, had
n o t i c e and knowledge of t h e t r i a l d a t e and t h a t
M r . Donovan had a c o n v e r s a t i o n w i t h d e f e n d a n t re-
g a r d i n g such t r i a l d a t e . From t h e s e f a c t s , you
may, b u t need n o t , i n f e r t h a t t h e d e f e n d a n t had
knowledge and n o t i c e of t h e t r i a l d a t e . "
R a t h e r , t h e i n s t r u c t i o n gave no d i s c r e t i o n t o t h e j u r y .
I t s l a n g u a g e was couched i n t h e form of a command. Once i t
was d e t e r m i n e d t h a t d e f e n d a n t ' s a t t o r n e y had n o t i c e o r
knowledge of t h e t r i a l d a t e , t h e j u r y was p e r m i t t e d t o form
b u t one r a t i o n a l c o n c l u s i o n , A s a c o n c l u s i v e o r mandatory
p r e s u m p t i o n , t h e i n s t r u c t i o n had t h e e f f e c t o f r e l i e v i n g t h e
S t a t e of i t s burden t o p r o v e e v e r y e l e m e n t of t h e o f f e n s e
beyond a r e a s o n a b l e d o u b t . The i n c l u s i o n of t h e i n s t r u c t i o n
o b v i a t e d t h e n e c e s s i t y f o r t h e j u r y t o i n d e p e n d e n t l y examine
t h e m e n t a l s t a t e o r t h e i n t e n t o r p u r p o s e of d e f e n d a n t . The
g i v i n g of t h e i n s t r u c t i o n was, t h e r e f o r e , e r r o r .
If the instruction was erroneous, the State argues that
the error was harmless, because the jury could have found
the requisite intent independent of the directions of the
instruction. The State makes reference to other items of
evidence, in particular, admissions of the defendant, from
which intent or mental state could have been inferred.
Admittedly, while it may have been true that some jurors did
not use the instruction to determine defendant's mental
state and rather inferred it from other items of evidence
introduced at trial, we cannot declare beyond a reasonable
doubt that all of the jurors formulated defendant's mental
state this way. State v. Hamilton (1980), - Mont . I
605 P.2d 1121, 1131, 37 St.Rep. 70, 81. Nor can we say
that any other of the harmless error tests are particularly
applicable to this case. There is, for example, no over-
whelming evidence of defendant's intent. State v. Hamilton,
supra. Accordingly, we find that the error was harmful and
remand this case to the District Court for retrial.
In this light, we address the remaining two issues
raised by defendant. The first issue, that of whether the
trial court erred in allowing Barbara Gregovich to testify
regarding an admission made by defendant, will, of course,
present no serious problem upon retrial. Where the admis-
sion of such testimony was objectionable here primarily
because it caused surprise, defense counsel will have knowl-
edge of such testimony on remand and the fact that it may be
used against him again. As a consequence, defendant will
suffer no prejudice because of surprise.
As for the second issue, whether the trial court erred
in allowing Daniel Donovan to testify regarding a conversa-
tion he had with defendant the morning that defendant failed
t o a p p e a r f o r t r i a l , t h a t problem i s a l s o e a s i l y r e s o l v e d .
The t e s t i m o n y was o b j e c t e d t o h e r e b e c a u s e i t was a l l e g e d l y
hearsay. The S t a t e a s k e d Donovan what he s t a t e d - -e
t o th
c o u r t r e g a r d i n g t h e c o n v e r s a t i o n he had w i t h d e f e n d a n t . The
S t a t e d i d n o t a s k Donovan what d e f e n d a n t s t a t e d t o him
r e g a r d i n g t h e t r i a l d a t e and d e f e n d a n t ' s i n t e n t i o n s t o
appear a t t r i a l . S e e , U n i t e d S t a t e s v . Freeman ( 9 t h C i r .
1 9 7 5 ) , 519 F.2d 67; U n i t e d S t a t e s v . McLennan ( 9 t h C i r . 1977),
563 F.2d 943. P r o p e r l y framed, t h e q u e s t i o n e l i c i t s a
r e s p o n s e which c a n o n l y be c a l l e d a n a d m i s s i o n , c l e a r l y
recognized a s an exception t o t h e r u l e s of evidence p e r t a i n -
i n g t o hearsay. Rule 801 ( d ) ( 2 ) , Mont. R. Evid. Both c o u n s e l
a g r e e d d u r i n g o r a l argument t h a t t h e h e a r s a y problems c o u l d
have been s o l v e d by a p r o p e r l y framed q u e s t i o n .
A c c o r d i n g l y , w e remand t h i s c a s e t o t h e D i s t r i c t C o u r t
t o proceed c o n s i s t e n t w i t h t h e g u i d e l i n e s set o u t i n t h i s
opinion.
W e concur:
I