text:
    LORINDA BECK, Petitioner and Appellant, v. BOARD OF TRUSTEES, CASCADE COUNTY SCHOOL DISTRICT NO. 1, and High School District A, and Ed Argenbright, Superintendent of Public Instruction, Respondents.
    No. 88-22.
    Submitted June 28, 1988.
    Decided Aug. 22, 1988.
    760 P.2d 83.

      Emilie Loring argued, Big Fork, for petitioner and appellant.
    Waite, Schuster & Larson, Leslie S. Waite, III, argued, Great Falls, Rick Bartos, Office of Public Instruction, Helena, for respondents.
    Bruce W. Moerer, Mt. School Boards, Helena, for amicus curiae.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal concerns a dispute over the renewal of appellant Beck’s teaching contract with Cascade County School District (School District). Beck claimed tenure rights denied by the School District. The County Superintendent initially ruled in favor' of Beck. The State Superintendent reversed, and the District Court affirmed the State Superintendent. Beck appeals this decision.

The School District cross-appeals the issue of whether Beck’s collective bargaining agreement (CBA) is admissible. The County Superintendent and the State Superintendent agreed that the CBA was irrelevant, and excluded the document. The District Court reversed and allowed the CBA, but interpreted the CBA against Beck.

We reverse the District Court on the tenure issue, and remand for further proceedings. In regard to the admissibility of the CBA, we affirm the District Court in that we agree that the CBA is relevant. However, we hold that the proper remedy for the County Superintendent’s exclusion of the CBA is to remand to the County Superintendent to consider the effect of the CBA on Beck’s tenure rights.

The issue on appeal is whether the District Court abused its discretion in sustaining the decision of the State Superintendent of Public Instruction that appellant Beck was a nontenured teacher in 1985-86?

The issue on cross-appeal is whether the District Court erred in overruling the County Superintendent’s decision that the CBA was inadmissible?

The relevant facts and procedure are as follows: Beck achieved tenure by teaching from 1980 to 1984. She was not rehired for the 1984-85 school year, but she was rehired for the 1985-86 school year.

Beck testified before the County Superintendent that at the end of the 1984 school year she was let go as part of a reduction in force (RIF). Beck also contended that she was recalled pursuant to her collective bargaining agreement when the School District rehired her in 1985. School District Representative Jerry Hatch testified that Beck’s employment and tenure were terminated in 1984, and that she was simply reemployed, without tenure, for the 1985-86 school year.

In proceedings before the County Superintendent, Beck attempted to bolster the contention that she was a tenured teacher during the 1985-86 school year by pointing to the resolution of a grievance she had filed against the School District during the 1985-86 school year. In the grievance Beck had claimed she was entitled to reinstatement of her past sick leave and seniority, and the School Board had granted Beck’s demands.

When Beck sought to testify on the grievance in the proceedings before the County Superintendent, the School District objected on relevancy grounds, and the County Superintendent allowed the testimony over the objection. However, when President of the Great Falls Education Association Terry Browning attempted to testify on the CBA and the grievance, the School District objected and the County Superintendent sustained the objection ruling that the agreement was irrelevant to the tenure issue.

In addition to the disagreements over the relevance and effect of the grievance and the CBA, the parties disagree on the proper interpretation of Section 20-4-203, MCA. The County and State Superintendents, as well as the District Court, also have differing views.

The County Superintendent concluded that Section 20-4-203, MCA, controls the termination of the services of tenured teachers, but not the termination of tenure itself. The State Superintendent reversed holding that both tenure and services may be terminated pursuant to Section 20-4-203, MCA, and that the method for termination prescribed by Section 20-4-203, MCA, (the trustees vote to terminate), cannot be modified by contract. Thus, according to the State Superintendent, the CBA was irrelevant, and Beck waived her right to contest loss of tenure when she failed to object to her termination in 1984.

The District Court affirmed on different grounds. First, the District Court held the CBA relevant, and after analyzing the agreement, the lower court concluded that termination of Beck’s tenure may be deduced from reading the CBA together with the letter noticing Beck that her services would not be needed for the 1984-85 school year. The lower court reasoned that because the CBA differentiated between non-renewal, and reduction in force (or layoff), and inasmuch as the letter noticing that the contract would not be renewed used the term non-renewal instead of reduction in force or layoff, Beck’s tenure was terminated.

The District Court also analyzed the effect of Section 20-4-203, MCA, on the issue of termination of tenure as opposed to termination of services. According to the District Court, Beck could not be deemed a tenured teacher in 1986 because tenured teachers are elected from year to year unless terminated. See Section 20-4-203, MCA. Beck was not elected from year to year following the non-renewal of her contract, and thus she was not a tenured teacher.

Broadly speaking, “a contract made in violation of a statute is illegal, but the true rule seems to be that the question is one of legislative intent”. 17 C.J.S. Contracts Section 201 (1963). The School District contends that the State Superintendent correctly ruled that Section 20-4-203, MCA, prohibits recall rights for tenured teachers terminated by vote of the trustees. We reject this interpretation of the statute.

This Court has previously stated that:

“Tenure for teachers is unique in public contracts of employment. Its basis is academic freedom; freedom within the law to teach the truth and to stimulate the thinking of free men in a free society without fear of reprisal. Its scope assures, with certain exceptions, both continuing employment and economic security. Our society has long since determined the desirability of teacher tenure and this state has enacted legislation to implement it as public policy.”

Sibert v. Community College of Flathead County (1978), 179 Mont. 188, 191, 587 P.2d 26, 28. We hold here that given the policy of providing for tenure; i.e., academic freedom, continuing employment, and economic security, a school district may contract with a teacher’s union to allow retention of tenure without violating the statute. Thus, the District Court correctly reversed the County Superintendent and the State Superintendent on the relevancy of the CBA.

After finding the CBA admissible, the District Court interpreted what it found to be the pertinent parts of the CBA. The parties had no real opportunity to argue the effect of the CBA. The parties had no real opportunity to submit what may be admissible evidence relating to the CBA. Under these circumstances, the District Court abused its discretion in not remanding the case to the County Superintendent. Section 2-4-704, MCA. Thus, we remand to the County Superintendent for resolution of the issue of Beck’s tenure rights.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY, WEBER, HUNT and GULBRANDSON concur.


source: Caselaw Access Project

author: MR. JUSTICE HUNT

license: Public Domain

text:
    In re the VISITATION OF NEOLA B. KANVICK and JOHN R. KANVICK, Petitioners and Appellants, v. DEBRA H. REILLY, Respondent.
    No. 88-109.
    Submitted on Briefs June 30, 1988.
    Decided Aug. 22, 1988.
    760 P.2d 743.

      Harris & Seidler, Nancy C. Seidler, Billings, for petitioners and appellants.
    Dunaway, O’Connor & Moe, William J. O’Connor, II, Billings, for respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Neola B. and John R. Kanvick appeal an order of the District Court, Thirteenth Judicial District, Yellowstone County, denying their petition for a right to visit their granddaughter.

We affirm.

The issues on appeal can be framed as follows:

1. Did the District Court have the authority to entertain a petition in a custody action for visitation of a grandchild by the natural paternal grandparents?

2. Did the District Court err when it considered evidence of sexual abuse by the natural father?

3. Did the District Court abuse its discretion in concluding that unsupervised visitation by the natural paternal grandparents was not in the best interest of the grandchild?

Debra H. Reilly, respondent, and Glenn R. Kanvick, appellants’ son, were granted a decree dated March 4, 1983 dissolving their marriage. During the marriage, they had one minor child, K.R., whom the court placed in the mother’s custody. The mother later remarried. The appellants (Kanvicks) enioved regular and unsupervised visits with K.R. until approximately July, 1985. At that time, the mother would only allow visits in her home.

On January 24, 1986, the Kanvicks filed a petition for visitation requesting the court to order that K.R. be allowed overnight stays each month and day visits each month and holidays. In a separate adoption proceeding brought by K.R.’s new stepfather, Glenn Kanvick’s parental rights were terminated and the stepfather was allowed to proceed with his adoption of K.R. without the father’s consent. The adoption was granted May 2, 1986. On February 11, 1987, a hearing was held on the Kanvicks’ petition. The court denied the petition by order dated November 17, 1987.

The respondent mother has raised the issue of whether the District Court had the jurisdiction to adjudicate the question of grandparents’ visitation rights after K.R. had been adopted by her stepfather. This is a question of first impression- in Montana that must be treated with the utmost care and consideration as it involves relationships between and the rights of the natural and adopting parents of a child.

The focus here is on the interplay between two statutes. The first is Section 40-9-102, MCA, which allows the District Court to grant grandparents reasonable visitation. It reads in pertinent part:

“(1) Except as provided in subsection (5), the district court may grant to a grandparent of a child reasonable visitation rights.

“(2) Visitation rights granted under this section may be granted only upon a finding by the court, after a hearing, that the visitation would be in the best interest of the child.

“(5) This section does not apply if the child has been adopted by a person other than a stepparent or a grandparent. Visitation rights granted under this section terminate upon the adoption of the child by a person other than a stepparent or a grandparent.”

In apparent conflict with the above statute is the statute concerning the final effect of an adoption decree, Section 40-8-125, MCA. The relevant section of this statute reads:

“(2) After a final decree of adoption is entered, the natural parents and the kindred of the natural parents of the adopted child, unless they are the adoptive parents or the spouse of an adoptive parent, shall be relieved of all parental responsibilities for said child and have no rights over such adopted child or to his property by descent and distribution.” (Emphasis added.)

We must resolve the apparent conflict between Section 40-9-102Í2L which gives grandparents visitation rights if it is in the best interest of the child, and Section 40-8-125(2), which appears to abrogate those rights upon adoption. Because this Court has not decided this narrow issue we seek guidance from other jurisdictions.

Under the common law, grandparents had no right to visit their grandchildren without parental consent. Ex parte Bronstein (Ala. 1983), 434 So.2d 780, 782. The majority of courts have generally adhered to this rule especially when faced with a situation where the child has been adopted. See Matter of W.E.G. (Alaska 1985), 710 P.2d 410; In re Adoption of Schumacher (Ill.App. 1983), 458 N.E.2d 94; Bronstein; Mead v. Owens (Ga.App. 1979), 254 S.E.2d 431.

The rationale behind this position is best summed up in Schumacher:

“The majority view is persuasive, as there is no indication that the Illinois statutory provisions for grandparent visitation were intended to override the adoption laws .... However, as a grandparent’s status as such is derived from the relationship between the child and the natural parent (In re Adoption of Gardiner (Iowa 1980), 287 N.W.2d 555; see People ex rel. Bachleda v. Dean (1971), 481 Ill.2d 16, 268 N.E.2d 11), an adoption, which terminates the rights of the natural parent, also removes the basis for the relationship of the grandparent and thereby ends the status on which the statutory right to visitation rests. (In re Adoption of Gardiner (Iowa 1980), 287 N.W.2d 555.) Further, the mere existence of a statute permitting court-ordered grandparent visitation under certain circumstances should not be allowed to defeat the adoption statute’s basic premise of the complete severance of ties between the child and the natural family. (See 287 N.W.2d 555; Browning v. Tarwater (1974), 215 Kan. 501, 524 P.2d 1135.) Therefore, the grandparent visitation provision should be construed as subject to the adoption laws, such that a completed adoption proceeding supersedes any rights which could have been obtained pursuant to Section 607(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill.Rev.Stat. 1981, ch. 40, par. 607(b)). See In re Adoption of Gardiner (Iowa 1980), 287 N.W.2d 555; Browning v. Tarwater (1974), 215 Kan. 501, 524 P.2d 1135; see also Bikos v. Nobliski (1979), 88 Mich.App. 157, 276 N.W.2d 541.”

458 P.2d at 97-98.

While this is the majority view, there are indications that even the majority recognizes the harshness that may result. Judge Shulman of the Georgia Court of Appeals, concurring specially in Mead, stated:

“I must agree with the legal premise set forth in the opinion in this case. However, I feel compelled to raise a voice in the hope that in a more enlightened time, the strong and natural love that grandparents have for their grandchildren will be recognized to a greater extent and that their rights to implement that affection will be legally enlarged.”

254 S.E.2d at 432.

Similarly, Alabama Supreme Court Justice Shores stated, specially concurring in Bronstein:

“I agree that the common law does not recognize, and never has, any right of visitation by grandparents. I hope, however, that the Legislature will address this issue and pass legislation extending to grandparents a right to retain and maintain a relationship with the children of their children. Precious little remains of the family structure, which played such a vital part in the development of this nation. It seems unconscionable to allow its further fragmentation.”

434 So.2d at 784.

Accordingly, many states are taking a less stringent approach in harmonizing their adoption and grandparent visitation schemes.

One of the earliest cases which does this is Mimkon v. Ford (N.J. 1975), 332 A.2d 199, in which the New Jersey Supreme Court held that the grandparent visitation statute created an independent action in the grandparents and therefore their rights were in no way dependent upon nor derived from the natural parent’s relationship with the child. 332 A.2d at 201-02. By reading the adoption statute and visitation statutes in pari materia, the court distinguished between situations where the adoptive parents were non-relatives or strangers to the child and where the adoption was done by a natural parent and step parent couple. In the adopting step parent scenario, reasoned the court, “the policy of insulating the adoptive child from his natural parents is not so clearly compelling as it would be in other situations.” Mimkon, 332 A.2d at 203.

Illinois takes a concomitant view:

“In adoptions by a natural parent and that parent’s new spouse, the policy concern with maximizing the pool of adoptive parents is greatly diminished, since the act of becoming a stepparent most often occurs without regard to adoption and in spite of regular visitations between the child and the noncustodial natural parent. If an adoption then ensues, the rights and obligations of the natural narent are terminated to the same degree as in an adoption by strangers. Termination of the parental relationship is, however, a legal fiction, since no act of law can nullify a biological relationship. There is no reason to extend that legal fiction to include a termination of a grandparental relationship unless it is in the child’s best interest to do so . . . . Absent an adoption of an infant by strangers, there is no reason to assume from the outset that termination of a grandparental relationship is in an adopted child’s best interest; nor is there any reason to view grandparental visitation as an ‘unnecessary intrusion’ in the lives of a reconstituted family.”

Lingwall v. Hoener (1985), 108 Ill.2d 206, 91 Ill.Dec. 166, 170, 483 N.E.2d 512, 516.

This Court finds the reasoning of the Lingwall case persuasive and adopts that view. Section 40-9-102, MCA, gives a clear indication of intending to differentiate between situations where adoption is done by strangers and where it is not. Subsection (5) states succinctly that any rights obtained under subsection (1) are terminated upon adoption of the child by anyone other than a stepparent or grandparent, i.e., a stranger or relative further removed from the immediate family unit. While Montana law does not permit visitation by a natural parent whose child has been adopted, Matter of C. P. (Mont. 1986), [221 Mont. 180,] 717 P.2d 1093, 1095, 43 St.Rep. 728, 731, we see no clear intent of the legislature nor a public policy which mandates a similar result for the natural grandparents of that child where the adoption is done by a stepparent. Therefore, we hold that the District Court had the jurisdiction to adjudicate the merits of this matter. Respondents’ further argument that the Kanvicks should have brought their petition in the adoption proceeding is without merit as the court in a dissolution has broad powers to determine all the problems of dissolution including division of property, support, and custody in which the matter of visitation is inherent. See In re Marriage of Wilson (1980), 186 Mont. 290, 296, 607 P.2d 539, 542; Section 40-4-208, MCA; Section 40-4-211, MCA; Section 40-4-217, MCA. Having thus disposed of the jurisdictional issue, we move on to the merits of the Kanvicks’ appeal.

The Kanvicks complain that in its decision the District Court relied upon certain intimations that K.R.’s natural father had sexually abused her and that these intimations were neither proven nor testified to as being accurate. Because the father often lived in the grandparents’ home, the court concluded that the Kanvicks would be unable to protect K.R. from her father.

Evidence of sexual abuse was testified to by a clinical psychologist, Dr. Veraldi, who had been treating K.R. The Kanvick, psychologist testified to the psychological effects of such abuse on a child’s sense of security and trust in her current custodian. Specifically, the doctor testified as follows:

“Q. What was the purpose of [K.R.] coming to see her? A. Her mother brought her in because she believed that [K.R.’s] behavior and some of her statements indicated that she may have been sexually abused.

“Q. Did you talk to [K.R.] about that? A. Yes, I did.

“Q. Did you reach an opinion as a result of your work with the child? A. During the course of my sessions — not immediately, but during the course of my sessions, yes, [K.R.’s] behavior indicated some concerns about sexual problems, and [K.R.] made — later made statements to me that she had been touched in a sexual manner, a manner that made her feel uncomfortable by her father.”

No objection was made to these statements.

Dr. Veraldi was careful to thoroughly discuss the psychological harm done to and the resulting needs of a sexually abused child.

“THE WITNESS: There are a number of short and long-term consequence's on the child, but one of the most significant is a loss of a sense of security and a real fear that something has happened to the child and is very upsetting to them, but they can’t control it. The adults that should be protecting them are not protecting them so you have what’s called a betrayal of trust. This interferes gradually on a long-term basis with all relationships, because the trust is lost.

“A: One of the most important things that should happen when a child discloses abuse is adults who have care of that child need to believe that child, otherwise the betrayal of trust becomes even more serious. It doesn’t just pertain, then, to the offender, it pertains to all other adults that the child should be able to rely on so that to regain the trust of a child that says ‘So and so touched me in a way that made me feel uncomfortable,’ it is important that you believe that child.”

Dr. Veraldi testified as an expert witness under Rule 703, M.R.Evid., which reads:

“The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in a particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.”

Thus, an expert is allowed to rely upon the report and opinions of other doctors, Matter of G. S. (Mont. 1985), [215 Mont. 384,] 698 P.2d 406, 409-410, 42 St.Rep. 451, 455, hearsay, Azure v. City of Billings (1979), 182 Mont. 234, 255, 596 P.2d 460, 471-472, and those facts she or he has garnered through an independent investigation. State v. Hallam (1978), 175 Mont. 492, 501, 575 P.2d 55, 61. The credibility of the source of the opinion goes to its weight and not its admissibility. Azure, 596 P.2d at 472. The District Court properly considered the doctor’s testimony in making its decision.

Lastly, the Kanvicks assert that the District Court abused its discretion in holding that visitation by the Kanvicks was not in K.R.’s best interest.

Section 40-9-102(2), MCA, allows the court to grant a grandparent visitation rights only after a finding that the visitation would be in the child’s best interest. The District Court chose not to allow visitation in this matter because the natural father lived with his parents, the Kanvicks, a majority of the time and that the Kanvicks were not able to ensure that he would not interfere with their visits with his daughter. Mr. Kanvick testified that he had no plans to restrict his son’s comings and goings from the Kanvick home. He also testified that his son stays at the home between three and seven days a week or “whenever he feels like it.” Testimonial evidence presented by respondent’s expert reveals that due to the possibility of sexual abuse any contact with K.R.’s father could result in severe psychological damage to K.R. We will not reverse the District Court absent clearly erroneous findings which result in an abuse of discretion. In re Marriage of Goodman (Mont. 1986), [222 Mont. 446,] 723 P.2d 219, 220, 43 St.Rep. 1410, 1412; Rule 52(a), M.R.Civ.P. The District Court did not discount the beneficial effects of the Kanvicks’ relationship with their grandchild and encouraged K.R.’s mother to continue to allow visits in her home. The court, however, did recognize that a regular visitation schedule could most likely force K.R. to visit her natural father as well. It did not abuse its discretion by refusing such a schedule.

AFFIRMED.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and GULBRANDSON concur.


author: MR. JUSTICE WEBER

text:
    GEORGE ERNEST LeCLAIR and Theresa Jane LeClair, husband and wife, Plaintiffs and Respondents, v. EDWARD L. REITER, Clifford C. Hust and Marlene M. Hust, husband and wife, Defendant and Appellants.
    No. 88-135.
    Submitted on Briefs June 30, 1988.
    Decided Aug. 22, 1988.
    760 P.2d 740.

      Edward L. Reiter, Huntley, pro se.
    Jones Law Firm, Blair Jones, Billings, plaintiffs and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

This is an action for termination of a contract for deed. The District Court for the Thirteenth Judicial District, Yellowstone County, declared the interests of the defendant purchasers terminated and quieted title in the plaintiff sellers. Mr. Reiter appeals. We affirm.

We restate the issues as follows:

1. Is this appeal moot because Mr. Reiter failed to file a supersedeas bond?

2. Was sufficient notice of default served upon Mr. Reiter?

3. Are the findings supported by the evidence?

4. Were attorney fees properly awarded to plaintiffs?

In May 1978, the plaintiffs, as sellers, entered a contract for sale of farm equipment and real property in Yellowstone County, Montana, with defendants Clifford and Marlene Hust. In January 1980, the Husts made a written assignment to defendant Mr. Reiter of “all of their right, title and interest” in the real and personal property described in that contract for deed. The provisions of the contract for deed which are relevant to this appeal are:

“7. Buyer and Seller agree that taxes and assessments shall be prorated between them as of May 14, 1978. Seller shall pay taxes and assessments for all prior years in full and Buyer shall pay taxes and assessments for all subsequent years in full before the same become delinquent. Should Buyer fail to pay such taxes and assessments, Seller may, at their election, either treat the failure to pay said taxes and assessments as an event of default hereunder . . .

“10. Should any default of Buyer hereunder remain uncured for more than thirty (30) days after written notice thereof, Seller may, without further notice or period of grace:

“(b) declare the entire unpaid principal balance with accrued interest thereon immediately due and payable and upon non-payment thereof after thirty (30) days’ notice to Buyer of said acceleration, Seller may enforce collection of the total amount then due and payable in any appropriate manner by any available remedy, or terminate this Agreement, retaining all payments made by Buyer as liquidated damages for breach of this Agreement.

“15. Any notice hereunder may be served personally or by certified mail. If served by mail, notice shall be directed to Buyer at Rd 9-Hardin, Mont., and to Seller at 2917 S.W-337-St. Federal Way Wash-98003, or such other address as Buyer or Seller may designate by notice appropriately delivered to the other and to the Escrow Agent. Service by mail shall be complete on deposit in any United States Post Office.”

In June 1986, the plaintiffs sent Mr. Reiter, by certified mail, a notice of default. The notice alleged that Mr. Reiter had failed to comply with the provisions of the contract for deed by failing to make the contract payments due for the months of March and April 1986 and to pay real property taxes for the years 1984 and 1985. The notice further pointed out that the contract required Mr. Reiter to bring the default current within 30 days from the date of the notice.

In July, the plaintiffs served upon Mr. Reiter a “Notice of Default and Election to Accelerate,” listing failure to pay the 1984 and 1985 property taxes, failure to make the payment due for the month of June 1986, and failure to maintain adequate insurance coverage. In that notice, the plaintiffs elected as allowed under the contract to declare the entire unpaid balance of the contract due within 30 days. When Mr. Reiter failed to pay the accelerated balance of principal plus interest, the plaintiffs filed this suit for termination of the contract for deed.

The lower court granted judgment to plaintiffs, ordering that the contract was terminated, that plaintiffs’ title to the property be quieted, and that the real and personal property described in the contract be returned to plaintiffs’ possession. It also awarded plaintiffs their reasonable attorney fees as allowed under the contract. Mr. Reiter appeals, appearing pro se.

I

Is this appeal moot because Mr. Reiter failed to file a supersedeas bond?

The plaintiffs have raised this threshold issue, pointing out that they have already repossessed the real and personal property and that quitclaim deeds from Mr. Reiter to the Husts and from the Husts to plaintiffs have been filed. They argue that since Mr. Reiter did not file a supersedeas bond or otherwise stay execution of the lower court’s judgment, this appeal is moot.

Where payment or performance of a judgment by an appellant is involuntary, the right to appeal is not affected. State v. Rafn (1956), 130 Mont. 554, 557, 304 P.2d 918, 919-20. That rule was reaffirmed in this Court’s opinion and order in First National Bank in Eureka v. Giles (Mont. 1986) 43 St.Rep. 1326, 1328:

“It thus appears that in our decided cases we have been skirting around the rule that if a judgment is satisfied by an involuntary payment or performance, the appeal from the judgment is not thereby rendered moot. We hereby adopt that rule, expressly overruling anything to the contrary in Henke [Gallatin Trust and Savings Bank v. Henke (1969), 154 Mont. 170, 461 P.2d 448] or other cases.”

It is clear from the District Court file that Mr. Reiter did not voluntarily relinquish either the real or personal property to the plaintiffs. We therefore go on to the issues raised by Mr. Reiter.

II

Was sufficient notice of default served upon Mr. Reiter?

Mr. Reiter asserts that the notice of default was invalid because the copy he received was undated. He testified that his mother signed for the certified letter and that he threw away the envelope. He cites caselaw requiring return of process after service of a summons as his authority that the notice must have been dated.

The contract for deed does not require that the notice be dated in any certain way, except to specify that service by mail is complete on deposit in a post office. Under the contract, the postmarked date is the beginning of the 30-day period for curing a default. Mr. Reiter acknowledges receiving the notice by certified mail and there is nothing to indicate prejudice to him by a failure to date it. Further, a copy of the notice of default was submitted into evidence. It contains all information required by the contract and is dated at the bottom. We hold that the lower court was not in error in finding that the notice of default served upon Mr. Reiter was sufficient.

III

Are the findings supported by the evidence?

Mr. Reiter makes several arguments which we have grouped under this issue. One depends on his contention in Issue II that the notice of default was insufficient. Our resolution of Issue II disposes of that argument.

Another of Mr. Reiter’s arguments involves his Chapter 11 (reorganization) bankruptcy proceeding. His bankruptcy petition was dismissed in April of 1986. Mr. Reiter asserts that before his petition was dismissed, he and his creditors reached an agreement that the sole secured creditor would claim the secured property and that he would pay all other creditors within three years. He maintains that this oral agreement binds the plaintiffs.

The District Court found, as to this argument:

“13. That the Court finds the allegation by Defendant Reiter as to the existence of a subsequent agreement with Plaintiffs forgiving or allowing Defendant Reiter additional time to pay taxes to be unfounded and not supported by credible evidence in the following respects:

“a. Defendant Reiter ties his allegation with regard to the taxes to a Chapter 11 bankruptcy filing which was dismissed in April, 1986 — prior to the service of the default notices and maintenance of this action. No agreement was reached during the bankruptcy proceedings which alters the terms of the contracts before the Court.”

Findings of fact will not be set aside unless they are clearly erroneous. Rule 52(a), M.R.Civ.P. In their testimony at trial, the plaintiffs denied ever discussing with Mr. Reiter an agreement such as the one he claims existed. There is no formal creditor agreement from the bankruptcy proceeding, because that proceeding was dismissed. We conclude that the above finding is not clearly erroneous.

Mr. Reiter next argues that after he received the notice of default, he kept his payments current to the escrow agent, so that the lower court should have dismissed this case at the hearing on his motion for summary judgment. However, under paragraph 7 of the contract, nonpayment of taxes could be grounds for default. Mr. Reiter does not dispute that he did not pay the 1984 and 1985 taxes. Whether he did or did not make up or keep up on his monthly payments, he was in default based on nonpayment of the taxes.

Finally, Mr. Reiter argues that the bill of sale he received on the personal property included in his contract with the Husts never went into escrow, so that he is entitled to retain that property. The District Court’s order extinguished Mr. Reiter’s interest in the following personal property:

John Deere Tractor — 70 Gas

John Deere Tractor — A

John Deere Drill — 8’

12” Post Hole Digger

3-Section Harrow

Wooden Leveler — 6’ x 24’

Border Dyker

International Two-Bottom Rollover Plow

John Deere #5 Mowing Machine

John Deere #5 Mowing Machine

Johnson WorkHorse Loader with manure fork and hay head Ditcher

Burr Grain Grinder plus belt

The escrow officer testified by deposition that the original bill of sale for the above property was in the escrow file. The Husts had no power to convey to Mr. Reiter any greater interest in the personal property than the interest they possessed, and their interest was limited by the contract for deed. Mr. Reiter did not produce an original bill of sale, nor any other documents showing that the personal property had been paid off separately from the escrow contract. We conclude that the lower court’s finding that plaintiffs are entitled to have the personal property returned to them is supported by the evidence and is not clearly erroneous.

IV

Were attorney fees properly awarded to plaintiffs?

Under paragraph 14 of the contract for deed, the prevailing party in an action for enforcement of the contract “shall be entitled to a reasonable attorney’s fee in addition to costs of suit”. Mr. Reiter asks that the award of attorney fees be reversed.

Paragraph 14 of the contract clearly allows attorney fees to the prevailing party. As discussed above, we affirm the rulings of the District Court which made plaintiffs the prevailing party. We conclude that plaintiffs are entitled to the attorney fees awarded by the District Court and that they are entitled to reasonable attorney fees on appeal. This matter is remanded to the District Court for determination of the reasonable attorney fee on appeal.

Affirmed and remanded. ■

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, GÜLBRANDSON and HUNT concur.


author: MR. JUSTICE SHEEHY

text:
    FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, Plaintiff and Respondent, v. HARVEY O. ANDERSON, et al., Defendant and Appellant.
    No. 88-184.
    Submitted on Briefs July 21, 1988.
    Decided Aug. 22, 1988.
    760 P.2d 80.

      Terry A. Wallace, Hamilton, for defendant and appellant.
    Debra D. Parker, Murphy, Robinson, Heckathorn and Phillips, Kalispell, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Anderson appeals from a default judgment and decree of foreclosure entered in favor of the Federal Savings and Loan Insurance Corp. (FSLIC) by the District Court of the Eleventh Judicial District, Flathead County. We affirm.

The principal issue in this case involves the computation under Rule 6, M.R.Civ.P. of the notice period required when default judgment is sought under Rule 55(b) (2), M.R.Civ.P. A second issue concerns the application of Uniform District Court Rules to default judgments.

Anderson claims that the default judgment should be vacated (1) because the notice given by FSLIC of its intent to enter default judgment was inadequate, and (2) because of claimed failures by FSLIC to conform to the Uniform District Court Rules.

The chronology of events leading to the default judgment, as reflected in the court file is as follows:

June 30, 1986 Complaint filed for mortgage foreclosure by FCLIC

September 9, 1986 Service of summons & complaint upon H. O. Anderson

September 29, 1986 Motion to dismiss filed by H. O. Anderson

October 15, 1987 Motion to dismiss denied; Anderson granted 20 days to answer

June 30, 1987 Request by FSLIC for entry of default against Anderson; copy served on Anderson’s counsel

July 1, 1987 Default of Anderson entered by clerk

January 19, 1988 Motion by FSLIC for default judgment

January 19, 1988 Notice of hearing for default judgment, served by mail January 19, 1988 setting hearing for January 26, 1988

January 26, 1988 Response to motion and brief, dated January 23, 1988, by Anderson filed in the District Court, at 10:11 a.m., January 26, 1988

January 26, 1988 Default judgment entered at 5:02 p.m.

February 29, 1988 Notice of appeal filed in District Court, dated February 26, 1988

In his brief before the District Court opposing the default judgment, dated January 23,1988, but filed January 26, 1988, Anderson, through his counsel, contended that insufficient notice had been given under Rule 55(b)(2), M.R.Civ.P. for judgment by default when the notice period is computed under Rule 6(a). He contended that the entry of default by the clerk was done without notice, and was “in violation of the standards of practice for entry of default in this court’s jurisdiction”; and further that Rule 1(a)(8) of the Uniform District Court Rules requires the lines of all papers to be spaced “one and one half or double;” that under Rule 1(c)(6) of said Uniform District Court Rules, such non-conforming papers could not be filed without the leave of the court, and no leave was obtained in this case. Anderson further contended that under the Uniform District Court Rules, he was entitled to 10 days notice of a motion for default judgment. Anderson raises much the same arguments on this appeal.

We turn first to the argument of the computation of the time for notice where default judgment is proposed to be taken under Rule 55(b)(2). That rule provides in pertinent part: “If the party against whom judgment by default is sought has appeared in the action, he . . . shall be served with written notice of the application for judgment at least three days prior to the hearing on such application.”

Rule 5(b) permits the service of notices either personally upon the attorney of record or by mail. In this case, service was made upon counsel for Anderson by mail.

The general rule for the computation of time in matters such as this is Rule 6(a), which provides:

“In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation. A half holiday shall be considered as other days and not as a holiday.” (Emphasis added.)

There is, however, an enlargement of the time period permitted when there is service by mail. Rule 6(e), provides:

“Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period.”

Anderson contends that the computation of notice time required to be given him is as follows: The notice of the hearing for entry of default judgment was mailed on Tuesday, January 19, 1988. Under Rule 6(e), the three added days entered into play at this point and the notice period began to run after Friday, January 22, 1988. The following Saturday and Sunday are excluded and therefore his three day period of required notice began on Monday, January 25, 1988. Thus, according to Anderson, any hearing before June 27 was insufficiently noticed under the rules.

First, Anderson’s method of computation is in error. Service by mail is complete on the date of mailing. Rule 5(b). The application of Rule 6(e) does not mean that service by mail cannot be deemed effective until three days after mailing. Porto Transport, Inc. v. Consolidated Diesel and Electric Corporation (S.D.N.Y. 1957), 21 F.R.D. 250. Without doubt, the period of notice during which Anderson should have taken action under the notice began running Wednesday, January 20, 1988.

If, in this case, notice of the hearing on default had been personally served on the attorney for Anderson, his notice period would have expired with the close of business on Friday, January 22, 1988. A complication arises with respect to how the enlarged time under Rule 6(e) ought to be applied. Under Rule 6(e), “three days shall be added to the prescribed period.” The prescribed period under Rule 55(b)(2) is three days. Under Rule 6(a), when the period of time prescribed and allowed is less than seven days, intermediate Saturdays, Sundays and holidays are excluded in the computation.

The question arises, do the rules intend that the non-court days excluded under Rule 6(a) apply to additional days granted by virtue of mailing under Rule 6(e)? The rules are unclear on this point. As to the unclarity, Professor Moore reports that “as to whether Rule 6(e) requires eight day’s notice of motion where the notice is served by mail, see proceedings of American Bar Association Institute, Cleveland (1933), 214-15, 218. The conclusion reached was that, while the matter was not free from doubt, eight days notice was properly required and in any event should be given in order to avoid question.” 2 Moore’s Federal Practice paragraph 5.07, fn. 8 (1987).

Strange to report, our extensive research reveals no case in the federal or state system treating the question whether intermediate Saturdays, Sundays and holidays should be excluded from the computation where the intermediate days occur within the additional time allowed by Rule 6(e) after service by mail.

We have decided not to determine this question in this action, but will await guidance from some future court decision where the adequacy of the notice period for default judgments, as enlarged by service by mail, is the principal reason for the decision of the court. In this case, far more weighty reasons exist why this judgment should not be invalidated on grounds of inadequate notice.

First of all, Anderson had ample notice that a hearing for a default judgment would be held on January 26, 1988. He mailed in a brief and response to the notice of motion on Saturday, January 23, 1988. He had been given “ample time to appear and ask for additional time to prepare the motion.” Anderson v. Brady (E.D.Ky. 1945), 5 F.R.D. 85. Not only did Anderson have actual prior notice of the hearing, but the case had been on the docket for more than 16 months after the service of the complaint and summons on Anderson with no other action being taken by him except for a motion to dismiss. Notice of request for entry of default was given to Anderson on June 30, 1987. For more than six months, thereafter, Anderson did nothing to set aside the default. At the time of his response to the notice of hearing for the default judgment, on January 23, 1988, he did not allege or tender any proof that he had a meritorious defense to the suit for mortgage foreclosure. Nor has he alleged or claimed so since. Anderson has never tendered an answer to the complaint.

Moreover, it is a general rule that a procedural defect with respect to notice of a default judgment must be considered with other factors before the default judgment may be set aside.

“While the failure to give the required notice is generally regarded as a serious procedural irregularity that may afford the basis for reversal on appeal, . . . and in conjunction with other errors may render the judgment void, the error should not usually be treated as so serious as to render the judgment void. It should be considered in the light of surrounding circumstances and will, at times, be harmless.”

7 Moore's Federal Practice paragraph 60.25(2) (1983). See Planet Corporation v. Sullivan (7th Cir. 1983), 702 F.2d 123; Winfield Associates, Inc. v. Stonecipher (10th Cir. 1970), 429 F.2d 1087.

We are commanded under Rule 1, M.R.Civ.P. to construe the Montana Rules of Procedure so as “to secure the just, speedy and inexpensive determination of every action.” In this case, therefore, even if it were to be considered that the notice of hearing on default judgment was insufficient, nonetheless, the other factors so outweigh the procedural defect as to require sustaining the entry of the default judgment in this case.

As to the contentions of Anderson that the notice of hearing of default judgment did not conform to the Uniform District Court Rules, little need be said. The controlling rules relating to the entry of default judgments are found in Rule 55, and with respect to service, those found in Rules 5 and 6, M.R.Civ.P. The Uniform District Court Rules do not enlarge, vary or control the provisions of Montana Rules of Civil Procedure and indeed we find no conflict in this case between the two sets of rules. Failure of FSLIC to double space the lines of the notice is not of sufficient weight to nullify the subsequent judgment of the court.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER, HUNT, GULBRANDSON and McDONOUGH concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DAVID THOMAS DAWSON, Defendant and Appellant.
    No. 87-251.
    Submitted June 13, 1988.
    Decided Aug. 23, 1988.
    Rehearing Denied Sept. 27, 1988.
    761 P.2d 352.

      Jeffrey Renz argued, Allen Beck, Gary Wilcox, Billings, for defendant and appellant.
    Mike Greely, Atty. Gen., Barbara Claassen, argued, Asst. Atty. Gen., Helena, Harold Hanser, Co. Atty., Dennis Paxinos, Deputy Co. Atty., Billings, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

A jury in the District Court for Yellowstone County convicted defendant Mr. Dawson of three counts of deliberate homicide, four counts of aggravated kidnapping, and one count of robbery. He was sentenced to death for each of the three deliberate homicides and for each of the three aggravated kidnapings which resulted in the death of the victim. Defendant appeals his conviction and death sentences. We affirm on all issues.

The issues are:

1. Was Detective Hatfield’s entry into and search of the defendant’s motel room an unconstitutional search?

2. Did the District Court’s reaction to the testimony of the surviving victim prejudice the case?

3. Were the sexual paraphernalia and magazines improperly admitted into evidence?

4. Did the prosecutor improperly comment upon the defendant’s silence?

5. Was the defendant denied a jury trial as to those facts of the crime which are now denominated as aggravating circumstances, and does the evidence support the court’s findings on those circumstances?

6. Did the trial court err by considering the defendant’s silence at trial in imposing the death penalty?

7. Did the sentencing judge improperly consider the victim impact statement and characteristics of the victim?

8. Should a jury have participated in the sentencing process?

9. Should the absence of a prior criminal history on the part of the defendant be treated as sufficiently substantial to warrant leniency?

10. Does Section 46-18-305, MCA, violate the Eighth Amendment?

11. Review of the sentence under Section 46-18-310, MCA.

The four members of the Rodstein family were staying at the Airport Metra Inn in Billings, Montana, preceding a family move from Billings to Atlanta, Georgia. The defendant checked into the room next to theirs at approximately 4:45 a.m. on Friday, April 18, 1986. At about 5:00 a.m., the teenage daughter of the Rodsteins, Amy, went outside to load the family car. The defendant, carrying a duffel bag from which a gun protruded, followed her back to her room. He then took all members of the family to his own room, where he bound and gagged all of them but Amy. He directed her to help him move the family’s belongings into his room. Then he bound and gagged Amy and went through the family’s belongings, taking out credit cards, cash, and jewelry.

The defendant injected Mr. and Mrs. Rodstein with an unknown substance which he said would make them sleep. Sometime shortly thereafter, they were strangled to death with a telephone cord. The bodies were placed under the sink in the rear of the motel room and were covered by a bedspread. Amy, who lay bound and gagged on the floor in another part of the room, did not see her parents being strangled or their bodies being moved.

Later that day, the defendant gave the 11-year old Rodstein boy, Andrew, a liquid to drink which caused him to sleep. Andrew was strangled to death and his body was placed with those of his parents. Again, Amy did not see the murder or her brother’s body being moved. The defendant had Amy help him move the Rodsteins’ vehicles from the motel parking lot to an area behind a nearby gas station. The defendant also gave Amy a liquid to drink, but while he was not looking she dumped it on the bedspread and covered the wet area with a pillow.

During the day on Saturday, the defendant and Amy left the motel room several times. During these trips, the defendant made several phone calls, went to the bank, went to a fast food store, and stopped at his own apartment and a friend’s house. Amy did not attempt to get away because she believed her family was still alive and that an escape attempt might jeopardize their lives.

On Saturday evening, Billings police conducted an investigation at the motel after receiving reports that the Rodsteins were missing. The investigation is described more fully under Issue I. Briefly, after the defendant had come out into the parking lot and talked with the police several times, Detective Hatfield went to the defendant’s motel room door and asked permission to look through his room. When the defendant changed his position and opened the door slightly, Detective Hatfield entered the room and noticed the bedspreads in the back of the room. The defendant said, “Amy, they’re here to help you,” or words to that effect. Detective Hatfield found the bodies of the Rodsteins and summoned other officers for assistance. Detective Hatfield found Amy in the bathroom where the defendant had instructed her to stay after he observed the police outside.

An autopsy revealed that Mr. Rodstein died of asphyxiation. He had been strangled with “a great deal of force.” He also had several bruises on his scalp. Although needle marks were present in his arms, the substance with which he had been, injected could not be identified. Mrs. Rodstein had also died of asphyxiation. Her blouse, brassiere, and jeans had been opened prior to her death, but no evidence of sexual assault was found. She, too, had bruises on her head and needle marks on her arm. Andrew had also died of asphyxiation by strangulation. On his chest were a number of bruises “as if the skin were pinched very hard, very firmly, either by a finger or perhaps some object, some instrument.”

The defendant did not testify at trial, but he had made prior statements to other trial witnesses about a third party being involved. His defense at trial was that a third person committed the homicides or compelled him to commit the homicides. The jury found the defendant guilty on all counts charged.

I

Was Detective Hatfield’s entry into and search of the defendant’s motel room an unconstitutional search?

The factual circumstances surrounding Detective Hatfield’s entry into the motel room are critical to the resolution of this issue. Therefore, we set out the facts in detail.

When the officers from the Billings police department arrived at the Airport Metra Inn shortly before 11 p.m., they knew that the Rodstein family had been missing for over 24 hours and that the family’s two cars had been seen near the motel. The officers parked near the Rodstein vehicles. A neighbor of the Rodsteins who had followed the officers to the motel confirmed that the vehicles belonged to the Rodsteins.

Detective Hatfield learned from the motel clerk that the Rodsteins had been assigned Room 149 for Wednesday and Thursday nights. The room had since been assigned to a person from Bozeman. The clerk also told the detective that a person named John Monroe had been in Room 151 for a couple of days, and that John Monroe was driving a black Volkswagon bug.

When Detective Hatfield returned to the Rodsteins’ cars, another detective told him he had seen a man come out of Room 151 three times while Detective Hatfield was in the motel office. The individual was then outside, and Detective Hatfield approached and asked if he was John Monroe. The defendant said that he was John Monroe, and Detective Hatfield identified himself as a Billings police officer. He told the defendant that they were looking for the owners of the Rodsteins’ cars. The defendant stated that he knew nothing about the cars or their owners. Detective Hatfield testified that the defendant did not appear to be under the influence of drugs.

The police officers proceeded to search the Rodsteins’ cars. The defendant then approached Detective Hatfield and said he had helped a female between the ages of 12 and 29 start one of the cars one night. He also told them that someone had been “messing around” with the cars in the parking lot one night. Then he returned to his room.

The officers proceeded to go through Room 149 and all the unoccupied rooms on that side of the motel. One of the officers went to Room 151, knocked on the door, and spoke with the defendant just outside the room. At that time, the defendant gave the officer his real name and stated that he had registered under a false name because he was with a married woman. He also said that he had noticed that the Rodsteins’ cars had been moved while he was staying at the motel.

After checking the unoccupied rooms, the officers decided they ought to check Room 151 because they were becoming suspicious of the defendant. Detective Hatfield knocked on the door of Room 151 and the defendant opened it, dressed only in a yellow towel. Detective Hatfield stated that he would like to check the room. Defendant asked why and the detective replied that they were looking for anything which might help them locate the Rodsteins. At this time, Detective Hatfield was standing just outside Room 151 and the defendant was standing in the doorway, with the door ajar. Detective Hatfield testified that the room was dimly lit; the only light may have been that given off by the television. The detective asked if the defendant’s girlfriend was in the room and the defendant said, “No.” Detective Hatfield testified that at that point the defendant “stepped back away from the door pulling the door with him.” Detective Hatfield stepped into the room. He testified that it was his impression that the defendant had by his actions invited him to step inside.

At that point, Detective Hatfield noticed that the bedspreads from the beds were piled in the rear of the room. Defendant stated, “The bedspreads are in the back of the room.” Detective Hatfield testified that he said, “Yes,” and asked why, at which point the defendant said, “Amy, they are here to help you. You are going to be okay,” or words to that effect. Detective Hatfield knew that Amy was the name of the missing girl. Detective Hatfield testified that he looked at the defendant for a moment and the defendant said, “She is in the bathroom.”

Detective Hatfield directed the defendant to stay where he was and went to the rear of the motel room. He saw bound legs protruding from under the bedspreads, went back to the front of the room, and signaled the other officers to come in. Detective Hatfield then returned to the back of the room, ascertained that Mr. and Mrs. Rodstein and Andrew were dead, opened the bathroom door, and found Amy, who was physically unharmed.

In order to overcome the presumption against waiver of the constitutional right prohibiting warrantless searches and seizures, the State must show that the defendant gave unequivocal, specific consent to entry, uncontaminated by duress or coercion. State v. Brough (1976), 171 Mont. 182, 185, 556 P.2d 1239, 1241. “The question of voluntariness largely depends upon the facts of each case, no single fact being dispositive . . . The determination of voluntariness, rather, depends upon the ‘totality of the circumstances’ . . . [T]he issue of voluntariness is a factual one addressed to the discretion of the trial court.” [Citations omitted.] State v. Allies (1979), 186 Mont. 99, 111, 606 P.2d 1043, 1049-50, appeal after remand, 621 P.2d 1080.

Defendant argues that Detective Hatfield’s entry into the motel room was not justified by his consent. He cites State v. LaFlamme (1976), 170 Mont. 202, 551 P.2d 1011, in support of his argument. In that case, this Court stated,

“[I]t is clear that in the absence of a positive verbal assent to the search, equivocal conduct alone is insufficient as a basis for an inference of consent to search, which is a waiver of a constitutional right.”

LaFlamme, 551 P.2d at 1013. The defendant there was suspected of shooting at and damaging a weigh station near Broadus. Two police officers approached the defendant and asked if a ballistics examination could be made of his weapon. Defendant agreed, and looked for the gun but did not find it. The officers suggested that the defendant look in his pickup truck, which he did. After a brief search, the defendant stated, “Well, I guess it’s not here.” The sheriff said, “How about behind the seat?” Defendant responded, “Well, I don’t think so.” The sheriff tipped the seat ahead and uncovered the gun. This Court affirmed the lower court’s conclusion that clear and unequivocal consent to the search was not present, even though the sheriff believed from the circumstances that the defendant had consented to the search.

After considering the totality of the circumstances in the present case, the District Court concluded that the defendant’s conduct in admitting Detective Hatfield to the motel room was unequivocal. Defendant had been more than willing to talk with the police officers during their investigation at the motel. He not only stepped back from the door after stating that his girlfriend was not there, but also opened it wider. He did not object by actions or words to Detective Hatfield entering the room for the few moments they stood inside the door talking. The facts of this case support the conclusion that he voluntarily and unequivocally consented to Detective Hatfield’s stepping across the threshold of his motel room. We hold that the District Court’s ruling on this issue was not an abuse of discretion.

Following oral argument and submission of this case to the Court, defense counsel called the Court’s attention to a recent Ninth Circuit case, United States v. Winsor (9th Cir. 1988), 846 F.2d 1569. That case involved a visual search of a hotel room after police demanded that the door be opened. Because Detective Hatfield’s initial entry into the motel room was consentual, and in the absence of any demand for entry, Winsor is not applicable as to the initial entry.

Further, where exigent circumstances exist, a warrantless search and seizure may be reasonable. Warden v. Hayden (1967), 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782; State v. Dess (1982), 201 Mont. 456, 655 P.2d 149. “The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.” Warden, 387 U.S. at 298-99, 87 S.Ct. at 1646. Although the United States Supreme Court has not applied an exigent circumstances rationale to a situation directly comparable to the one here, the Ninth Circuit has formulated a rule which we will apply:

“When police officers, acting on probable cause and in good faith, reasonably believe from the totality of circumstances that (a) evidence or contraband will imminently be destroyed or (b) the nature of the crime or character of the suspect(s) pose a risk of danger to the arresting officers or third persons, exigent circumstances justify a warrantless entry, search or seizure of the premises.

United States v. Kunkler (9th Cir. 1982), 679 F.2d 187, 191-92.

We hold that following the defendant’s statements to the effect that,”Amy, they are here to help you,” and, “She’s in the bathroom,” the exigent circumstances justified Detective Hatfield’s limited search of the motel room. It was probable that the Rodsteins were somewhere in the vicinity of the Airport Metra Inn, where their vehicles were found. In the opinion of Detective Hatfield, an experienced police officer, the defendant had acted in an odd or suspicious manner including his several approaches to the investigating officers, his inconsistent statements about what he knew about the Rodsteins, and his use and then abandonment of a false name. Finally, the officers knew that the defendant had been in the room adjoining the Rodsteins’ room for several days. When the defendant called to someone, using the name Detective Hatfield knew was that of the missing girl, and then told the officer, “She is in the bathroom,” we conclude that Detective Hatfield had probable cause to search the room for the missing family.

Further, the police were faced with the probability that serious misfortune had befallen the Rodsteins, who, according to their friends and family, uncharacteristically had been missing for over 24 hours. We conclude that Detective Hatfield, acting on probable cause and in good faith, reasonably believed from the totality of the circumstances that there was a risk of danger to the Rodsteins justifying a search of the defendant’s motel room. We hold that the exigent circumstances justified Detective Hatfield’s warrantless limited search of the room, during which he found Amy and the bodies of her family. Before a complete search was done of the room, a search warrant was obtained.

In sum, we hold that there was no violation of the defendant’s right to be free from unreasonable searches and seizures. Defendant consented to the initial entry, and then exigent circumstances justified a limited search without a warrant.

II

Did the District Court’s reaction to the testimony of the surviving victim prejudice the case?

Amy Rodstein was the State’s principal witness at this trial. Because testifying was very difficult for her, the parties agreed that she would be questioned by her own attorney, not by the attorneys representing the State and the defendant. Amy’s therapist sat with her as she testified, and recesses were called whenever Amy’s counsel felt that they were needed.

At the conclusion of Amy Rodstein’s testimony, she and other persons in the courtroom were in tears or nearly so. The court ordered a recess, in a voice which “cracked or wavered.” The defense argues that the court’s facial expression and demeanor also conveyed strong emotion. The next morning, the defendant moved for a mistrial because of the possible effect of the court’s actions and demeanor upon the jury. The court denied the motion.

Defendant, as do all criminal defendants, had a constitutional right to trial by an impartial jury. Mont. Const., Article II, Sections 24 and 26; U.S.Const. amend. VI. To avoid prejudice to the defendant, the judge in a criminal trial should avoid making remarks which are calculated in any way to influence the minds of the jury. State v. Fuller (1906), 34 Mont. 12, 26, 85 P. 369, 374. However, “it is not every remark so made that may be alleged as ground of error.” Fuller, 85 P. at 374. To reverse a lower court’s ruling on a motion for mistrial, this Court must be presented with evidence that is clear, convincing, and practically free from doubt that the trial court’s ruling was erroneous. Schmoyer v. Bourdeau (1966), 148 Mont. 340, 343, 420 P.2d 316, 317-18.

The transcript does not convey any potential prejudice by the court. The defense’s argument hinges on the tone of voice and emotional content in which the order for a recess was delivered. Defendant relies upon the county attorney’s statement at the mistrial motion to support his claim. The county attorney stated that at most the court’s conduct went to the weight of the evidence. That, of course, is only the county attorney’s off-the-cuff remark. The lower court heard the arguments of both sides on this issue, and, especially in this case, was in a much better position than are we to judge whether the jury might have been prejudiced. We cannot conclude that the court’s ruling denying a mistrial was clearly erroneous. We hold that the denial of a mistrial was not error.

Ill

Were the sexual paraphernalia and magazines improperly admitted into evidence?

The State introduced into evidence at trial six pornographic magazines and two plastic artificial penises or dildoes found in Room 151. Two of the magazines were found tucked between drawers of a dresser in the room. The other materials were in the duffel bag which the defendant carried when he first approached Amy Rodstein. The defense’s motion in limine prior to trial to exclude all of these items was denied. The court reasoned that although no sexual crime had been charged, the State was not prohibited from pursuing a sexual motive theory at trial. The defense objected at trial to the admission of the two magazines found between the drawers on the basis that they were irrelevant, or, if relevant, that their relevance was outweighed by their prejudicial effect. That motion was also denied. The defense argues that no sexual crime was charged and no sexual motive theory was presented.

Absent abuse of discretion, this Court will uphold a district court’s weighing of the potential prejudice of a piece of evidence against its probative value. State v. Austad (1982), 197 Mont. 70, 83, 641 P.2d 1373, 1380. We note in considering the relevance of the above materials that there seems to be no rational and obvious plan or purpose for these murders. A theory of a planned sexual motive, while not proven to be fulfilled, is consistent with several facts: the defendant’s initial approach to Amy when she was alone, his treatment of her which was different from his treatment of the other family members, and the unfastened state of Mrs. Rodstein’s clothing. These facts were brought out by the prosecution at trial. It was not necessary that the State draw the final conclusion for the jury that there may have been a sexual motive behind these crimes. The District Court ruled that these pieces of evidence were admissible to show motive, and we find no abuse of discretion in that ruling.

The District Court also ruled that these materials were admissible into evidence as part of the corpus delicti. The State is entitled to present matters closely related to the charged offense and explanatory of it as part of the corpus delicti. State v. Gillham (1983), 206 Mont. 169, 179, 670 P.2d 544, 549. We conclude that there was no abuse of discretion in the District Court’s conclusion that the magazines and sexual paraphernalia were admissible as part of the corpus delicti of the crimes with which the defendant was charged. We hold that admission of the sexual paraphernalia and pornography was not error.

IV

Did the prosecutor improperly comment upon the defendant’s silence?

The Fifth Amendment to the United States Constitution guarantees criminal defendants a privilege against compulsory self-incrimination. Article II, Section 25 of Montana’s Constitution guarantees the same right. Prosecutorial comments deny the accused this privilege when the language used is manifestly intended or is of such character that the jury would naturally and necessarily take it as a comment on the failure of the accused to testify. State v. Anderson (1970), 156 Mont. 122, 125, 476 P.2d 780, 782.

In United States v. Robinson (1988),_U.S. _, 108 S.Ct. 864, 99 L.Ed.2d 23, the defendant was charged with mail fraud involving arson-related insurance claims. The defense at trial, at which the defendant did not testify, was that the government had breached its “duty to be fair” by denying the defendant the opportunity to explain his actions. In the State’s closing argument, the prosecuting attorney told the jury that the defendant “could have taken the stand and explained it to you.” The Court held that the defendant’s privilege against self-incrimination was not violated by this comment upon his failure to testify. Where the State’s reference to the defendant’s silence is a fair response to a claim made by the defendant or his counsel, there is no violation of the privilege against self-incrimination. Robinson, at_, 108 S.Ct. at 869.

In the present case, a witness for the defense testified at trial that some of the defendant’s acquaintances were conducting a drug deal at the Airport Metra Inn on the date the Rodsteins were kidnapped. He further testified that he heard one of these acquaintances say that the defendant had taken some hostages at a motel, and the other one told him to make the defendant “correct it,” if necessary.

The State’s attorney asked a police officer who testified at trial if “you [have] ever been able to get a statement from the Defendant.” The defense objected to the question, and it was withdrawn. The officer did not answer the question. Since no answer was given, we conclude that this question about the defendant’s silence was harmless.

In its closing argument, the State’s attorney referred to the defendant’s statement to one of the officers that, “You should have seen what he [the third person] did to that kid.” The attorney then said, “Where is this guy [referring to the third person] located at in Room 151? He [the defendant] doesn’t tell [the two officers] anything.” This reference was clearly in response to the defense presented at trial. We conclude that this reference to the defendant’s silence was admissible under Robinson.

V

Was the defendant denied a jury trial as to those facts of the crime which are now denominated as aggravating circumstances, and does the evidence support the court’s findings on these circumstances?

The defense discusses the right of a defendant at the common law to have a jury determine whether the crimes charged were committed with express malice. It argues that the aggravating circumstances with which the court justified the death penalties under Sections 46-18-302 to 305, MCA, are equivalent to a finding of malice. It argues that because of this historical situation, the defendant is entitled to have a jury determine the facts constituting the aggravating circumstances.

Regardless of the historical argument, the aggravating circumstances found against the defendant are related to sentencing only, and are not elements of the crimes charged. Jury participation is not constitutionally required in capital sentencing proceedings. State v. Smith (Mont. 1985), [217 Mont. 461,] 705 P.2d 1087, 1106, 42 St.Rep. 463, 487, cert. denied, 474 U.S. 1073, 106 S.Ct. 837, 88 L.Ed.2d 808. We conclude that the defendant was not entitled to a jury determination of whether the aggravating circumstances were present in this case.

The defense also argues that the evidence does not support the court’s finding that the homicides were committed by means of torture. See Section 46-18-303(3), MCA: “The offense was deliberate homicide and was committed by means of torture.” The defense argues that if the victims were unconscious when they were killed, they were not killed by means of torture. It also argues that the defendant’s acts before the victims were rendered unconscious did not kill them, so that it cannot be said that they were killed by means of torture.

The Rodsteins were bound and gagged tightly enough that, according to the medical testimony, they would have died of suffocation if they hadn’t been strangled. They were forced to see their family members similarly bound and gagged and their teenage daughter and sister taken by the defendant out of the room where they were captive. They then were forcefully injected or witnessed the injection of their family members with unknown drugs. Mr. Rodstein was strangled with sufficient force to break his voicebox. Mrs. Rodstein was hogtied, with her legs bent up behind her. Andrew Rodstein was subjected to the peculiar injuries to his chest. We hold that there is substantial evidence to support the District Court’s finding that the Rodsteins were killed by means of torture.

Next, the defense argues that the trial judge improperly applied Section 46-18-303(4), MCA: “The offense was deliberate homicide and was committed by a person lying in wait or ambush.” The defense asserts that several elements required under the common law antecedent of this statute are missing: secret waiting, watching from concealment, and presence of the murder weapon during the waiting and watching.

When the defendant approached Amy Rodstein in the parking lot, he had already laid out tape and gags on a bed in his room. He approached her carrying a duffel bag from which the muzzle of a gun protruded. We conclude that it is immaterial whether the actual murder weapon, the telephone cord with which the victims were strangled, was the defendant’s or the Rodsteins’. Defendant had laid out the tape and gags and had with him syringes, drugs, and the unloaded gun. We conclude that there is substantial evidence to support the District Court’s finding that the deliberate homicides were committed by a person lying in wait or ambush.

VI

Did the trial court err by considering the defendant’s silence at trial in imposing the death penalty?

The court’s findings in its sentencing order included the following:

“The Court has had the opportunity to observe the Defendant during the entire trial and throughout all proceedings. His conduct in all proceedings has been appropriate. Scarcely a word has been spoken in the Court’s presence. The complete lack of emotion and cool detachment in his demeanor has been noted throughout. As Dr. Van Hassel testified, lack of an emotional response can be a coping mechanism of denial, or a personality that shows no overt emotion normally or, finally, that the person truly is not concerned. Whatever the reason, the Defendant has demonstrated no remorse or genuine concern or respect for human life to the time of sentencing.”

The defense argues that this finding constitutes improper consideration of the defendant’s constitutional right to remain silent. It argues that the case should be remanded for resentencing without consideration of this factor, because the defendant would have to give up his right to remain silent in order to show remorse.

The scope of matters which a court may consider in sentencing goes beyond matters admissible in a criminal trial. Section 46-18-302, MCA. The above finding could express absence of a mitigating factor. In any event, we conclude that the presence of this finding is not significant because of the presence of several other findings warranting imposition of the death penalty.

VII

Did the sentencing judge improperly consider the victim impact statement and characteristics of the victim?

The presentence investigation report given to the judge prior to sentencing contained a three-paragraph “victim’s impact statement” which stated that three of the four members of the Rodsteins’ immediate family are deceased as a result of this crime. It also stated that Amy was undergoing psychological counseling and gave the cost of that counseling. Further it stated that Amy’s performance at the time the report was written had been described by her therapist as “not doing so well.”

The defense argues that under Booth v. Maryland (1987), 482 U.S. _, 107 S.Ct. 2529, 96 L.Ed.2d 440, the District Court’s receipt and consideration of evidence of the effect of the crime upon the Rodsteins, and upon Amy Rodstein in particular, violates the Eighth Amendment. It asserts that resentencing is required because of this error.

As was true in State v. Keith (Mont. 1988), [231 Mont. 214,] 754 P.2d 474, 487-88, 45 St.Rep. 556, 573-75, the situation in this case differs from that in Booth in several particulars. Sentencing in this case was by the court, not by jury as in Booth. The victim impact statement here consisted of three paragraphs. In Booth the victim impact statement was a lengthy and poignant collection of statements by the victims’ surviving family. We conclude as we did in Keith that Booth is not controlling because of important factual distinctions. We hold that the sentencing judge properly considered the victim impact statement and the characteristics of the victims.

VIII

Should a jury have participated in the sentencing process?

The defense concedes that both this Court and the United States Supreme Court have ruled that death penalty sentencing need not be done by a jury to be constitutionally sound. State v. Smith (Mont. 1985), [217 Mont. 461,] 705 P.2d 1087, 1105-06, 42 St.Rep. 463, 4B6-87, cert. denied, 474 U.S. 1073, 106 S.Ct. 837, 88 L.Ed.2d 808; Proffitt v. Florida (1976), 428 U.S. 242, 252, 96 S.Ct. 2960, 2966, 49 L.Ed.2d 913, 922-23. It argues perfunctorily that since the Montana Legislature meets only in alternate years, jury participation in death penalty sentencing is important so that current community sentiment is expressed.

We decline the defense’s invitation to overrule Smith and distinguish Proffitt. We again hold that a jury need not be the sentencing body where the death penalty is imposed.

IX

Should the absence of a prior criminal history on the part of the defendant be treated as sufficiently substantial to warrant leniency?

In its sentencing order, the court found that one statutory mitigating circumstance under Section 46-18-304, MCA, was present: the defendant had no significant history of prior criminal activity. Section 46-18-304(1), MCA. The defense argues that the presence of this mitigating factor is sufficient to warrant leniency.

We have previously rejected the proposition set forth by the defense. State v. Smith (Mont. 1985), [217 Mont. 461,] 705 P.2d 1087, 1097, 42 St.Rep. 463, 476, cert. denied, 474 U.S. 1073, 106 S.Ct. 837, 88 L.Ed.2d 808; State v. Coleman (1979), 185 Mont. 299, 331-32, 605 P.2d 1000, 1019-20, cert. denied, 446 U.S. 970, 101 S.Ct 34, 65 L.Ed. 2d 1177. Here we again conclude that it was not error for the District Court to refuse leniency when the nature of the crimes of which the defendant has been convicted is weighed against his lack of a significant prior criminal history.

X

Does Section 46-18-305, MCA, violate the Eighth Amendment?

The defense argues that Section 46-18-305, MCA, allows the imposition of cruel and unusual punishment because it does not sufficiently narrow the class of death-eligible defendants. That statute provides:

“Effect of aggravating and mitigating circumstances. In determining whether to impose a sentence of death or imprisonment, the court shall take into account the aggravating and mitigating circumstances enumerated in 46-18-303 and 46-18-304 and shall impose a sentence of death if it finds one or more of the aggravating circumstances and finds that there are no mitigating circumstances sufficiently substantial to call for leniency. If the court does not impose a sentence of death and one of the aggravating circumstances listed in 46-18-303 exists, the court may impose a sentence of imprisonment for life or for any term authorized by the statute defining the offense.”

The defense acknowledges that its argument has previously been rejected by this Court. See State v. McKenzie (1980), 186 Mont. 481. 514-19, 608 P.2d 428, 448-51, cert. denied, 449 U.S. 1050, 101 S.Ct. 626, 66 L.Ed.2d 507. We affirm our holding from McKenzie.

XI

Review of the sentence under Section 46-18-310, MCA.

Under Section 46-18-310, MCA, this Court, in reviewing a death sentence, must determine 1) whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; 2) whether the evidence supports the judge’s findings on any mitigating and aggravating circumstances; and 3) whether the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

As to the first determination, the defense has not argued that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor. Issue VII does discuss and rule upon a related issue with regard to the victim impact statement. We have reviewed the record and conclude that there is no indication in that record that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor.

The second determination requires this Court to consider whether the evidence supports the judge’s findings of the existence of aggravating and mitigating circumstances as enumerated in the statute. We have made a determination on two of the aggravating circumstances under Issue V. The other two aggravating circumstances found by the District Court are that the offenses were deliberate homicides committed as part of a plan or scheme whereby more than one person would die, and that the offenses were aggravated kidnappings resulting in the deaths of the victims. Sections 46-18-303(5) and (7), MCA. Clearly, the evidence supports both of those findings.

Last we are to determine whether the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crimes and the defendants. No argument has been made on this issue by the defendant. However, in accordance with our statutory duty, we have considered the five Montana death penalty cases since 1973. The facts of these cases are discussed in Keith, 754 P.2d at 480-81.

The crimes in this case extended over a number of hours, including the kidnapping of the four persons, the binding and gagging of the persons, the injection of substances into Mr. and Mrs. Rodstein, the subsequent strangulation of Mr. and Mrs. Rodstein with the telephone cord, the giving of a liquid to 11-year old Andrew Rodstein in order to make him sleep, and the strangling of Andrew. The defendant gave Amy a similar liquid to drink but because she poured it out when the defendant was not looking she may have been protected from her own deliberate homicide. As previously discussed, the deliberate homicides were committed by means of torture and by the defendant lying in wait or ambush. As discussed above, the aggravating circumstances also include that the offenses were deliberate homicides committed as a part of a scheme or operation which resulted in the deaths of three persons, including the 11-year old, and that the offenses of aggravated kidnapping resulted in the deaths of the victims.

We have considered the crimes and the defendants in each of the cases discussed in Keith and compared the same to the crimes and the defendant in the present case. In comparing the crimes, we conclude that the crimes committed by the defendant were at least as grievous and heinous as were those involved in the other described death penalty cases. We also conclude, after considering the defendants in each of the cases cited in Keith, that the defendant’s lack of a prior criminal history, when weighed against the nature of the crimes of which he was convicted, does not make his sentence disproportionate in comparison with the other cases. Finally, we have considered State v. Keefe (Mont. 1988), [232 Mont. 258,] 759 P.2d 128, 45 St.Rep. 1034, in which the defendant was not sentenced to death although he was convicted of the deliberate homicides of three family members in their home. However, that defendant was under the age of 18 at the time the crimes were committed.

We hold that the sentences of death given in the present case are not excessive or disproportionate to the penalty imposed in similar cases in Montana, considering both the crimes and the defendants. As required by Section 46-18-310, MCA, in reaching this conclusion, we have considered the punishment as well as any errors enumerated by way of appeal.

We affirm the judgment of the District Court. This cause is remanded to the District Court for the setting of an execution date.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY, GULBRANDSON, HUNT and McDONOUGH concur.