No. 90-472
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
COREY HUEBNER,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Madison,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Samuel M. Warren argued; Worden, Thane & Haines,
Missoula, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Jennifer Anders argued, Assistant Attorney General,
Helena
Loren Tucker, County Attorney; Mark David Hoffman,
Deputy, Virginia City, Montana
For Amicus Curiae:
Michael Donahoe, Helena, Montana
William Boggs argued, Missoula, Montana
Submitted February
Decided March 9,
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Corey Huebner was convicted by a jury in the District Court of
the Fifth Judicial District, Madison County, of the misdemeanor
charge of wasting game in violation of 1 87-3-102, MCA (1989). He
appeals. We affirm.
The following issues decide this appeal:
1. Is 5 87-3-102, MCA (1989), unconstitutionally vague or
overbroad?
2. Did the District Court err by failing to instruct the jury
as to criminal intent?
3. Did the District Court impose a penalty contrary to law?
Because of our holdings on these three issues, it is not
necessary to discuss the remaining issues raised.
Huebner shot a mountain goat in the Avalanche Lake area of
Madison County in the early evening of September 15, 1989.
According to him, by the time he was able to retrieve the animal
the next day, the meat was not fit for human consumption. This was
disputed by other hunters in the area, who testified at trial as
witnesses for the State. Huebner took only the head, horns, and
cape of the animal and left the rest. He was charged with
violation of 5 87-3-102, MCA (1989):
Waste of fish or game. It shall be unlawful and a
misdemeanor for any person responsible for the death of
any game animal of this state, excepting grizzly, black,
aqd brown bear and mountain lion, to detach or remove
from the carcass only the head, hide, antlers, tusks, or
teeth or any or all of aforesaid parts or to waste any
part of any game animal, game bird, or game fish suitable
for food or to abandon the carcass of any game animal in
the field[.]
After Huebner was tried and convicted by a jury in Madison
County Justice Court, he appealed to District Court. A & novo
jury trial which began on July 17, 1990, again resulted in a
verdict of guilty. Huebner was ordered to serve six months in the
Madison County jail, which sentence was suspended upon payment of
a $750 fine plus $1,312 in court costs and a $10 surcharge. His
hunting and fishing privileges were suspended for thirty months and
he was ordered to forfeit the cape and horns of the goat.
I
Is 5 87-3-102, MCA (1989), unconstitutionally vague or
overbroad?
A statute is unconstitutionally vague if it fails to give a
person of ordinary intelligence a reasonable opportunity to know
what is prohibited so that he or she may act in accordance
therewith. United States v. Powell (1975), 423 U.S. 87, 96 S.Ct.
316, 46 L.Ed. 2d 228. Huebner contends that 5 87-3-102, MCA (1989),
is unconstitutionally vague because it does not clearly set forth
the conduct which is prohibited.
We disagree. Section 87-3-102, MCA (1989), establishes that
the wasting of game meat other than grizzly, brown, or black bear
or mountain lion is illegal. A person commits Ifwastef1 doing any
by
of the following: (1) removing only the head, hide, antlers,
tusks, or teeth of any game animal other than the three trophy
animals listed; (2) wasting any part of any game animal, bird, or
fish, other than the three trophy animals listed, which is suitable
for food; or (3) abandoning in the field the carcass of any game
animal other than the three trophy animals listed. The statute
gives a person of ordinary intelligence reasonable notice of what
is prohibited. We hold that it is not unconstitutionally vague.
Huebner also argues that the statute is unconstitutionally
overbroad because it prohibits otherwise legal activities of any
hunter or taxidermist who removes specified body parts at any time.
This argument is without merit. Under the statute, it is not the
removal of the horns, head, or cape that is illegal, but the act of
removing onlv those body parts, without utilizing the rest of the
animal. We hold that § 87-3-102, MCA (1989), is not unconstitu-
tionally overbroad.
Did the District Court err by failing to instruct the jury as
to criminal intent?
Huebner contends that criminal intent is an essential element
of the crime of wasting game and that therefore the District Court
erred in not instructing the jury on the necessity of a culpable
state of mind. He asserts two theories in support of his position.
First, he argues that despite the lack of a mental state
requirement in 5 87-3-102, MCA (1989), the requirement must be
implied because the statute does not meet the requirements for an
absolute liability offense. An absolute liability offense is one
in which the actor's intent is irrelevant since it is the act
itself which constitutes the offense. State v. McDole (1987), 226
Mont. 169, 174, 734 P.2d 683, 686. Section 45-2-104, MCA,
provides :
A person may be guilty of an offense without
having, as to each element thereof, one of the
mental states described in subsections (33),
(37), and (58) of 45-2-101, only if the of-
fense is punishable by a fine not exceeding
$500 or the statute defining the offense
clearly indicates a legislative purpose to
impose absolute liability for the conduct
described. [Emphasis added.]
Huebner contends that since the offense of wasting game meat is
punishable by a fine that exceeds $500, the offense may not be
classed as an absolute liability offense.
Section 45-2-104, MCA, includes two disjunctive requirements
for an absolute liability offense. Either requirement can support
the elimination of the intent element. We conclude that the second
requirement has been met.
To ascertain legislative intent, we look to the language
employed and the apparent purpose subserved. State v. ust tin
(1985), 217 Mont. 265, 268, 704 P.2d 55, 57. The statute prohibit-
ing a person from shooting a game animal and abandoning the meat,
or as in this case, removing only those parts suitable for a trophy
mount, is obviously intended to preserve game resources for the
benefit of the public. Numerous Montana cases have recognized the
State's duty to protect public wildlife resources through regula-
tions designed for that purpose. E.g., State v. Jack (1975), 167
Mont. 456, 539 P.2d 726. Hunters are an identifiable group of
persons exercising their right to utilize the State's game
resources for food and other purposes. They are responsible for
knowing the laws pertaining to their sport. We hold that 5 87-3-
102, MCA (1989), indicates a legislative purpose to impose absolute
liability for wasting game meat other than grizzly, brown, or black
bear, or mountain lion. Huebner's argument that 5 87-3-102, MCA
(1989), does not fit the statutory requirements of an absolute
liability offense therefore fails.
Huebner's second theory is that all game violations under
Title 87, MCA, require proof of mental state, under Austin. That
was not this Court's holding in Austin. In that case, this Court
held that the spotlighting statute, 5 87-3-122, MCA, was unconsti-
tutional because, while it prohibited "spotlightingv' general, it
in
allowed exceptions for landowners, lessees, or their agents which
would permit arbitrary and irrational enforcement by law enforce-
ment officers. Austin, 704 P.2d at 59. It has not been argued
that 5 87-3-102, MCA (1989), contains arbitrary exceptions which
render it unconstitutional. Therefore, Austin's analysis does not
apply. We hold that the District Court did not err by failing to
instruct the jury on criminal intent.
Did the District Court impose a penalty contrary to law?
In addition to a fine and a suspended jail term, the District
Court imposed a penalty of forfeiture:
The defendant, Corey Huebner, shall forfeit to the State
of Montana (Department of Fish, Wildlife and Parks) the
cape and horns of the mountain goat which he lesallv
killed, but a part of which he was convicted of wasting
contrary to the cited statute.
Huebner argues that only if the mountain goat was killed illegally
may the District Court impose a forfeiture penalty.
Section 87-1-506, MCA, provides:
Enforcement powers of wardens. A warden may:
...
(4) seize game, fish, game birds, and fur-bearing animals
and any parts of them taken or possessed in violation of
the law or the rules of the department[.]
While it is true that Huebner killed the mountain goat legally,
there is no question that he violated the law in the manner in
which he took only the head, horns, and cape and left the rest of
the animal. Having failed to comply with the statutory requirement
that he not waste the meat, Huebner is subject to the game warden1s
authority under 9 87-1-506(4), MCA, to seize any parts of the
animal. We hold that the District Court did not impose a penalty
contrary to law.
As to the remaining issues raised by Huebner, we conclude
that, under the circumstances of this case, our holdings on Issues
I and I1 render them moot. Huebner took the stand in his own
defense at trial. He admitted that he took only the hide, horns,
and cape of the mountain goat, leaving the rest in the field. His
defense was based on his position that the meat of the animal was
no longer suitable for food by the time he was able to reach it the
morning after he shot it.
We have determined under Issue I that 5 87-3-102, MCA (1989),
constitutionally prohibits the taking from the carcass of a game
animal only the head, hide, antlers, tusks, or teeth, and abandon-
ing the remainder of the carcass in the field as Huebner, by his
own testimony, did in this case. Under Issue I1 we held that there
is no mental state required for violation of 5 87-3-102, MCA
(1989). We conclude that Huebnerts own testimony established all
of the elements of the offense with which he was charged.
By his own admission, Huebner did not raise at trial the
issues he argues on appeal concerning the oral instruction and
absence of written instruction to the jury on proof beyond a
reasonable doubt and the absence of instruction on the presumption
of innocence. We conclude that because Huebnerts own testimony
established all of the elements of the offense with which he was
charged, those issues, as well as the issues concerning the
unconstitutionality of the limits on appellate review in 5 46-20-
701 (2), MCA, and references to his exercise of Fifth Amendment
rights, could not have resulted in any prejudice to him.
Error in giving or refusing instructions will not neces-
sarily justify a reversal, when the evidence of the
defendant's guilt is so clear and convincing the jury
could not reasonably have found him not guilty.
People v. Genovese (Ill. 1979), 382 N.E.2d 872, cert. denied 444
U.S. 848, 100 S.Ct. 86, 62 L.Ed.2d 56. "No cause shall be reversed
by reason of any error committed by the trial court against the
appellant unless the record shows that the error was prejudicial."
Section 46-20-701(1), MCA. (The constitutionality of that
restriction on appellate review is not challenged.) Although in a
different factual situation the other issues raised by Huebner may
have merit, in this case they are immaterial.
Affirmed.
L
chief Justice
We concur:
~onorhbleThomas C. ~on%l/
District Judge, sitting ih.
place of Justice Karla M. Gray
Justice Terry N. Trieweiler specially concurring.
I concur with the opinion of the majority.
Had the defendant requested an instruction on the burden of
proof, and had it been refused, I would consider that refusal to be
reversible error. Likewise, had the defendant unsuccessfully
requested an instruction to the jury on his presumption of
innocence, I would consider that reversible error. However, in
this case, the burden of proof and presumption of innocence were
totally irrelevant to the defendant's theory of defense. The
conduct he was accused of was conceded. He simply disagreed that
it was a violation of the statute he was accused of violating.
We do not have to rely on 5 46-20-701 (2), MCA, for the time
honored principle that a party cannot raise on appeal those issues
which it did not raise at the trial court level. However, the
dissent contends that no trial court objection is necessary because
the District Court's failure to instruct on the presumption of
innocence is plain error and in violation of both the United States
and Montana Constitutions. I would direct the dissent to the
United States Supreme Court's decision in Kentucky v. Whorton (1979),
441 U.S. 786, 60 L.Ed.2d 640, 99 S.Ct. 2088, where they held that
failure to give such an instruction is not even always error.
In the Whorton case, the defendant actually requested that the
jury be instructed on the presumption of defendant's innocence.
That instruction was refused by the trial court and defendant was
found guilty of numerous counts of robbery and other crimes. On
appeal, he argued, as the dissent contends, that the refusal to
give such an instruction denied due process in violation of the
Fourteenth Amendment of the United States Constitution. In
rejecting the defendant s argument on appeal, the Supreme Court
held that:
In short, the failure to give a requested
instruction on the presumption of innocence does not in
and of itself violate the Constitution. Under T y o [
alr v .
Kentucky (1978), 436 U.S. 478, 56 L.Ed.2d 468, 98 S.Ct.
19301, such a failure must be evaluated in light of the
totality of the circumstances--including all the
instructions to the jury, the arguments of counsel,
whether the weight of the evidence was overwhelming, and
other relevant factors--to determine whether the
defendant received a constitutionally fair trial.
The Kentucky Supreme Court thus erred in
interpreting T y o to hold that the Due Process Clause of
alr
the Fourteenth Amendment absolutely requires that an
instruction on the presumption of innocence must be given
in every criminal case. The court's inquiry should have
been directed to a determination of whether the failure
to give such an instruction in the present case deprived
the respondent of due process of law in light of the
totality of the circumstances.
Whorton, 441 U.S. at 789-90, 60 L.Ed.2d at 643-44, 99 S.Ct. at 2090.
I conclude that under the totality of the circumstances in this
case, the District Court's failure to give the presumption of
innocence instruction did not prejudice the defendant and did not
violate due process. If under the Whorton decision, the failure to
give such an instruction is not, under every circumstance,
reversible error even when it is requested, failure to give such an
instruction certainly does not rise to the level of plain error
when it has not been requested.
Furthermore, I find no prejudice from the ~istrictCourt's
reference to "preponderance of the evidence1'in the context of its
discussion on circumstantial evidence. The purpose of that
discussion was not to explain to the jury the degree of proof
required to convict the defendant. The purpose of that discussion
was to point out to the jury that circumstantial evidence was as
worthy of consideration as direct evidence. The phrases
''preponderance of the evidencew and "proof beyond a reasonable
doubtw are meaningless without the usual instructions to the jury
explaining their meaning. No such instructions were given in this
case, and the terms as used were neutral in terms of any impact
they may have had on the jury. Therefore, while I agree that if
the defendant had requested an instruction on the State's burden of
proof he would have been entitled to one, I cannot conclude under
the circumstances in this case that he was so severely prejudiced
by the failure to give one that the failure to do so violated his
right to due process and therefore, rises to the level of plain
error.
For these reasons, I concur with the opinion of the majority.
Justice R. C. McDonough dissents.
I would reverse and remand for a new trial. The defendant was
deprived of his right to due process in violation of Section 17 of
Article I1 of the Constitution of the State of Montana 1972, and of
the Fourteenth Amendment to the United States Constitution.
At the very least, the trial court issued conflicting
instructions on the burden of the State to prove defendant's guilt
beyond a reasonable doubt. It also failed to give any instruction
on the presumption of innocence. Even though the defendant
testified at trial, it is the function of the jury to ultimately
render a verdict of guilty or not guilty under proper instructions.
Section 26-1-403, MCA(1989), provides that in criminal cases,
the court must instruct the jury that guilt must be proven beyond
a reasonable doubt. At the instruction settlement conference the
State submitted five proposed instructions. One of those
instructions covered the defendant's presumption of innocence; that
it remains with him throughout the trial; and that it is not
overcome unless the jury is convinced beyond a reasonable doubt
that the defendant is guilty.
The court stated it would give its written composite
Instruction No. 1. At this point the State withdrew its proposed
first five instructions. The court then stated it would give the
State's sixth instruction which was a recitation of the statute
that the defendant was charged with violating. This recitation was
eventually given as Instruction No. 2. The defense offered only
one instruction which is not relevant to this discussion, and the
defense did not in any way object to the courtf composite
s
Instruction No. 1.
The District Court read its written Instructions No. 1 and 2
to the jury, and then stated:
THE COURT: The State of Montana must prove the elements
of this charged offense to your satisfaction beyond any -
- beyond a reasonable doubt. And another matter, when
you go to the jury room, you will select one of
yourselves as the foreman or foreperson. And they'll
take charge of your discussions and you will discuss the
matter.
I v given you a verdict form, which will be in this
'e
little envelope. which you will have with you along with
a copy of the instructions. And remember, this being a
criminal case, all six of you must agree on the verdict.
Now, I m going to recognize the State for closing
'
argument.
No where in the court's written instructions is there an
instruction covering the presumption of innocence. As to the
burden of proof the only mention is as follows:
Now some law on evidence and witnesses.
There are, generally speaking, two types of evidence
from which a jury may properly find the truth as to the
facts of a case. One is direct evidence -- such as the
testimony of an eyewitness. The other is indirect or
circumstantial evidence -- the proof of a chain of
circumstances pointing to the existence or non-existence
of certain facts.
As a general rule, the law makes no distinction
between direct and circumstantial evidence, but simply
requires that the jury find the facts in accordance with
the preponderance of all the evidence in the case, both
direct and circumstantial.
The oral instruction stated that the elements of the charged
offense must be proven beyond a reasonable doubt. It is in
conflict with that part of the courtf written Instruction No. 1
s
that states that the law simply requires the jury to find the facts
in accordance with the preponderance of all the evidence in the
case. Nothing could be more contradictory as to the burden of
proof. The general rule is that contradictory instructions are
sufficient to reverse the judgment. State v. Sloan, 22 Mont. 293,
56 P. 364; State v. Keerl, 29 Mont. 508, 75 P. 362; and State v.
Fuller, 34 Mont. 12, 85 P. 369. This rule should be applied in
this case.
If the jury remembered the oral instructions in its
deliberation and considered it along with the written instructions,
it would be impossible to tell which one the jury applied to the
evidence. They could assume both were correct and pick one. If
they applied the written one, it would clearly be error. The
giving of the preponderance instruction or allowing the jury to
select between the two is erroneous and conflicting. Given this
clear error, a discussion of the emphatic effect of the clearly
erroneous instruction being writing and the other partially
correct instruction being oral is not necessary.
The failure of the court to properly instruct on the
presumption of innocence and the burden on the State to prove the
defendant guilty beyond a reasonable doubt is clear error and
violates due process. The requirement of the court to instruct on
the presumption of innocence and the burden of proof is fundamental
in our criminal justice system. If it is not given, even though
the defendant did not object, the judgment is reversible. As
stated by Justice Brennen in the opinion In re Winship, 397 U.S.
Reports, 358, 363:
The reasonable-doubt standard plays a vital role in
the American scheme of criminal procedure. It is a prime
instrument for reducing the risk of convictions resting
on factual error. The standard provides concrete
substance for the presumption of innocence--that bedrock
llaxiomaticand elementary1# principle whose "enforcement
lies at the foundation of the administration of our
criminal law." Coffin v. United States, supra, at 453.
As the dissenters in the New York Court of Appeals
observed, and we agree, 'a person accused of a crime
l ..
. would be at a severe disadvantage, a disadvantage
amounting to a lack of fundamental fairness, if he could
be adjudged guilty and imprisoned for years on the
strength of the same evidence as would suffice in a civil
case." 24 N.Y. 2d, at 205, 247 N.E.2df at 259.
The requirement of proof beyond a reasonable doubt
has this vital role in our criminal procedure for cogent
reasons. The accused during a criminal prosecution has
at stake interests of immense importance, both because of
the possibility that he may lose his liberty upon
conviction and because of the certainty that he would be
stigmatized by the conviction. Accordingly, a society
that values the good name and freedom of every individual
should not condemn a man for commission of a crime when
there is reasonable doubt about his guilt. As we said
in Speiser v. Randall, supra, at 525-526: "There is
always in litigation a margin of error, representing
error in factfinding, which both parties must take into
account. Where one party has at stake an interest of
transcending value--as a criminal defendant his liberty--
this margin of error is reduced as to him by the process
of placing on the other party the burden of . . .
persuading the factfinder at the conclusion of the trial
of his guilt beyond a reasonable doubt. Due process
commands that no man shall lose his liberty unless the
Government has borne the burden of ... convincing the
factfinder of his guilt." To this end, the reasonable-
doubt standard is indispensable, for it I1impresseson the
trier of fact the necessity of reaching a subjective
state of certitude of the facts in issue.g1 Dorsen &
Rezneck, In Re Gault and the Future of Juvenile Law, 1
Family Law Quarterly, No. 4, pp. 1, 26 (1967).
Moreover, use of the reasonable-doubt standard is
indispensable to command the respect and confidence of
the community in applications of the criminal law. It is
critical that the moral force of the criminal law not be
diluted by a standard of proof that leaves people in
doubt whether innocent men are being condemned. It is
also important in our free society that every individual
going about his ordinary affairs have confidence that his
government cannot adjudge him guilty of a criminal
offense without convincing a proper factfinder of his
guilt with utmost certainty.
Lest there remain any doubt about the constitutional
stature of the reasonable-doubt standard, we explicitly
hold that the Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime
with which he is charged.
This Court has expanded on this doctrine. In State v.
Harrison, 23 Mont. 79, 57 P. 647, this Court held that in addition
to an instruction on reasonable doubt there must also be an
instruction on the presumption of innocence. See also State v.
Williams (1979), 184 Mont. 111, 601 P.2d 1194. Harrison quotes
Justice White in Coffin v. U.S., 156 U.S. 432, 15 S.Ct. 394, as
follows:
"The fact that the presumption of innocence is
recognized as a presumption of law, and is characterized
by the civilians as a presum~tioiuris, demonstrates that
it is evidence in favor of the accused; for, in all
systems of law, legal presumptions are treated as
evidence giving rise to resulting proof to the full
extent of their legal efficacy. Concluding, then, that
the presumption of innocence is evidence in favor of the
accused introduced by the law in his behalf, let us
consider what is 'reasonable doubt.' It is of necessity
the condition of mind produced by the proof resulting
from the evidence in the cause. It is a result of the
proof, not the proof itself; whereas the presumption of
innocence is one of the instruments of proof, going to
bring about the proof, from which reasonable doubt
arises; thus, one is a cause, the other an effect. To
say that the one is the equivalent of the other is
therefore to say that legal evidence can be excluded from
the jury, and that such exclusion may be cured by
instructing them correctly in regard to the method by
which they are required to reach their conclusion upon
the proof actually before them; in other words, that the
exclusion of an important element of proof can be
justified by correctly instructing as to the proof
admitted. The evolution of the principle of the
presumption of innocence, and its resultant, the doctrine
of reasonable doubt, makes more apparent the correctness
of these views, and indicates the necessity of enforcing
the one, in order that the other may continue to exist.
Whilst Rome and the medievalists taught that, wherever
doubt existed in a criminal case, acquittal must follow,
the expounders of the common law, in their devotion to
human liberty and individual rights, traced this doctrine
of doubt to its true origin,--the presumption of
innocence,--and rested it upon this enduring basis. The
inevitable tendency to obscure the results of a truth,
when the truth itself is forgotten or ignored, admonishes
that the protection of so vital and fundamental a
principle as the presumption of innocence be not denied,
when requested, to any one accused of crime."
In the case before us, no instruction covering the presumption
of innocence was given either orally or in writing. Even though
the absence of such instruction was not objected to or brought to
the court's attention, it was clear error for the court not to give
it. On the basis of the sound reasoning set forth by Justice
White, in Coffin, I conclude that the failure to give an
instruction on the presumption of innocence also violates Section
17 of Article I1 of the Constitution of the State of Montana 1972
(due process clause), and the Fourteenth Amendment to the
Constitution of the United States.
I am well aware of redesignated 5 46-20-701 (2), MCA (1991),
which was amended to read as follows:
Any error, defect, irregularity, or variance which does
not affect substantial rights shall be disregarded. No
claim alleging an error affecting jurisdictional or
constitutional right may be noticed on appeal, if the
alleged error was not objected to as provided in 46-20-
104, unless the defendant establishes that the error was
prejudicial as 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 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 or his attorney and could not have
been ascertained by the exercise of reasonable
diligence.
However, the plain error doctrine was first considered and
applied by this Court in Halldorson v. Halldorson (1977), 175 Mont.
This within the Court s constitutional
prerogative under Article VII, Section 2 of the 1972 Montana
Constitution, which provides in part:
Section 2. Supreme Court jurisdiction. (1) The Supreme
Court has appellate jurisdiction and may issue, hear, and
determine writs appropriate thereto. It has original
jurisdiction to issue, hear, and determine writs of
habeas corpus and such other writs as may be provided by
law.
(2) It has general supervisory control over all other
courts.
(3) It may make rules governing appellate procedure
practice and procedure for all other courts admission to
the bar and the conduct of its members. Rules of
procedure shall be subject to disapproval by the
legislature in either of the two sessions following
promulgation.
If one considers the Halldorson case to be an enunciation of
a procedural rule, this would be subject to the legislative veto,
and in application of the last sentence of Section 3, a disapproval
by the legislature would have to occur in the 1979 or 1981
legislative session. This did not happen. But there is a more
serious question as to whether or not the legislature has the right
to initiate procedural rules, contrary to this Court's decisions,
as they have done here. They have essentially not disapproved the
Halldorson rule, they have initiated an amended procedural rule by
putting limitations upon it.
It cannot be questioned that what can be heard on appeal in a
criminal case when it is not objected to in the trial court, is a
procedural rule. The legislature has the power to disapprove, but
it cannot initiate. The legislature, in limiting the application
of the plain error doctrine in criminal cases, has usurped a
function which is reserved to the judicial branch. In the specific
case before us, the failure to instruct on the presumption of
innocence in considering the defendant's guilt or innocence, and
the failure to instruct on the burden of proof beyond a reasonable
doubt, is a violation of fundamental and substantive rights of the
defendant by the government, and violates both the due process
clause of the Montana Constitution and that of the United States
Constitution. If such instructions are not presented by the state
or the defendant, it is the duty of the trial court to so instruct.
To say that we cannot consider such a fundamental and substantive
violation of a defendant's rights on appeal due to the failure to
object at the trial level is the erection of procedural barriers by
the legislature designed to impede the judicial function in
interpreting the Constitution. I would therefore hold that § 46-
20-701(2), MCA (1991), specifically violates Article VII, Section
2 of the Montana Constitution, and is a procedural barrier that the
legislature cannot erect, when those procedural barriers are
designed to impede the judicial function in the review and
interpretation of fundamental rights as set forth in the
Constitution.
I would reverse and remand for a new trial.
Justice /,
,/