text:
    STATE OF MONTANA, Plaintiff and Respondent v. CLIFFORD R. LEVERETT, Defendant and Appellant.
    No. 89-189.
    Submitted on Briefs May 24, 1990.
    Decided Sept. 18, 1990.
    Rehearing Denied Nov. 1, 1990.
    799 P.2d 119.

      Ira Eakin, Billings, for defendant and appellant.
    Marc Racicot, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Harold Hanser, County Atty., Brent Brooks, Deputy County Atty., Billings, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Following trial in the Thirteenth Judicial District Court, Yellowstone County, a jury found appellant Clifford R. Leverett guilty of negligent homicide for striking and killing a pedestrian with his automobile. Leverett now appeals, primarily alleging errors in evidence and jury instructions related to his driving under the influence of alcohol. We reverse and remand.

FACTS

Late in the afternoon of September 24, 1988, appellant Leverett was involved in an automobile accident near the curve where Sixth Avenue North leads into Division Street in downtown Billings, Montana. After rounding the curve, Leverett’s car crossed from the outside lane of traffic through the inside lane and two oncoming lanes and crashed into a parked car. Somewhere near the center-line, his vehicle struck a pedestrian who died the next morning of injuries. Following the accident, the appellant underwent field sobriety tests and a breath test. The breath test registered his blood alcohol content at .121. The State subsequently charged Leverett with negligent homicide, and a jury found him guilty.

Leverett now appeals his conviction and raises a number of issues related to the evidence and jury instructions concerning intoxication. We decline to discuss every issue raised by the appellant because one is sufficient to reverse his conviction and remand the case for a new trial. The District Court’s jury instruction that a blood alcohol level greater than .10 raised a mandatory rebuttable presumption that the appellant was under the influence of alcohol violated his right to due process under the Fourteenth Amendment of the United States Constitution.

THE CHALLENGED INSTRUCTIONS

Instruction No. 11 tracked verbatim § 61-8-401, MCA, providing in pertinent part:

“Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person driving or in actual physical control of a vehicle while under the influence of alcohol, the concentration of alcohol in the person’s blood at the time alleged, as shown by chemical analysis of the person’s blood, urine, breath, or other bodily substance, shall give rise to the following presumptions:
“(c) If there was at that time an alcohol concentration of 0.10 or more, it shall be presumed that the person was under the influence of alcohol. Such presumption is rebuttable.
“The provisions of subsections A-C do not limit the introduction of any other competent evidence bearing upon the issue of whether the person was under the influence of alcohol.”

Jury Instruction No. 12 quoted § 30-1-201(31), MCA, stating:

“ ‘Presumption’ or ‘presumed’ means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence.”

THE SCOPE AND PERSPECTIVE OF ANALYSIS

The current analysis of whether a jury instruction containing an evidentiary presumption in a criminal case violated the defendant’s due process rights follows a procedure established by the United States Supreme Court in Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, and Ulster County Court v. Allen (1979), 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777. The United States Supreme Court has most recently reaffirmed that procedure in Francis v. Franklin (1985), 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344.

In analyzing evidentiary presumptions in a criminal case, the reviewing court must focus on the particular language used to charge the jury and determine whether a reasonable juror could have interpreted the challenged instruction as an unconstitutional presumption.

“Analysis must focus initially on the specific language challenged, but the inquiry does not end there. If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating [an unconstitutional presumption], the potentially offending words must be considered in the context of the charge as a whole. Other instructions might explain the particular infirm language to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption.”

Francis, 471 U.S. at 315, 105 S.Ct. at 1971, 85 L.Ed.2d at 354. (Citation omitted.)

PRESUMPTIONS OF ESSENTIAL ELEMENTS

We begin our analysis with a preliminary matter which the United States Supreme Corut has not explicitly addressed: whether the challenged presumption must go to an essential element of the crime charged. The United States Supreme Court has consistently reiterated the premise that its holdings on unconstitutional presumptions apply only to presumptions of facts which must be proved before the defendant can be found guilty. See e.g. Francis, 471 U.S. at 313, 105 S.Ct. at 1970, 85 L.Ed.2d at 352 (the Due Process Clause “prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime”) (Emphasis added.); Ulster County, 442 U.S. at 156, 99 S.Ct. at 2224, 60 L.Ed.2d at 791 (the presumption “must not undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt) (Emphasis added.); Sandstrom, 442 U.S. at 520, 99 S.Ct. at 2457, 61 L.Ed.2d at 49 (“[i]t is clear that under Montana law, whether the crime was committed purposely or knowingly is a fact necessary to constitute the crime of deliberate homicide”). (Emphasis added.) This Court has specifically held that presumptions which create affirmative defenses do not go to an element of the crime charged and, therefore, do not violate due process. State v. Sunday (1980), 187 Mont. 292, 304, 609 P.2d 1188, 1196; State v. McKenzie (1980), 186 Mont. 481, 525, 608 P.2d 428, 454.

In the present case, in view of the wording of the information and Instruction No. 5, the presumption of intoxication does go to an element of the crime charged. “A person commits the offense of negligent homicide if he negligently causes the death of another human being.” Section 45-5-104, MCA. A person is criminally negligent under the negligent homicide statute when he

“consciously disregards a risk that the [death] will occur ..., or when he disregards a risk of which he should be aware that the [death] will occur. ... The risk must be of such a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. ‘Gross deviation’ means a deviation that is considerably greater than lack of ordinary care.”

Section 45-2-101(37), MCA. In two previous negligent homicide cases, this Court held that driving under the influence of alcohol may be tantamount to criminal negligence. State v. Cook (1982), 198 Mont. 329, 333, 645 P.2d 1367, 1370; State v. Kirkaldie (1978), 179 Mont. 283, 292, 587 P.2d 1298, 1304; see also Lupro v. State (Alaska 1979), 603 P.2d 468, 474-75; State v. Montieth (1966), 247 Or. 43, 417 P.2d 1012, 1015. More important to our present analysis is the language of the instructions to the jury. Instruction No. 5 followed the language of the information filed against the appellant:

“You are instructed that the specific charge in this case reads as follows: ...
“The facts constituting the offense are:
“That the defendant CLIFFORD R. LEVERETT negligently caused the death of Ronald Lee Scheetz as defined at MCA Section 45-2-101(37) (1987) by driving his motor vehicle ... into a pedestrian, Ronald Scheetz at an unsafe rate of speed and with a blood alcohol concentration in excess of .10. ...”

(Emphasis added.) From this instruction, a reasonable juror may have concluded that a finding of intoxication was necessary for conviction.

CLASSIFYING THE PRESUMPTION

Under the United States Supreme Court’s analysis, we must undertake a step-by-step classification of the presumption used in this case to determine whether it violated the appellant’s right to due process. The first step in this classification is to determine whether a reasonable juror would understand it to be a mandatory or permissive presumption.

“The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes. The court must determine whether the challenged portion of the instruction creates a mandatory presumption or merely a permissive inference. A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts. A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.”

Francis, 471 U.S. at 313-14, 105 S.Ct. at 1971, 85 L.Ed.2d at 353 (Quotation and citation omitted). A permissive presumption does not violate due process so long as a rational connection exists between the predicate and presumed fact. Ulster County, 442 U.S. at 157, 99 S.Ct. at 2225, 60 L.Ed.2d at 792. A mandatory presumption, on the other hand, may or may not be constitutional depending on its type and function.

In determining whether a reasonable juror would have viewed Instruction Nos. 11 and 12 as mandatory or permissive, we note that most jurisdictions considering similar jury charges have found that they create mandatory presumptions unless the language of the inference is unambiguously permissive. See e.g. State v. McDonald (S.D. 1988), 421 N.W.2d 492, 496; Barnes v. People (Colo. 1987), 735 P.2d 869, 874; Commonwealth v. Moreira (1982), 385 Mass. 792, 434 N.E.2d 196, 200; State v. Vick (1981), 104 Wis.2d 678, 312 N.W.2d 489, 497; State v. Dacey (1980), 138 Vt. 491, 418 A.2d 856, 859; State v. Berch (Iowa 1974), 222 N.W.2d 741, 746; but see Commonwealth v. DiFrancesco (1974), 458 Pa. 188, 329 A.2d 204, 211; Hillery v. State (1983), 165 Ga.App. 127, 299 S.E.2d 421, 422. Here, the challenged instructions clearly are not permissive. Instruction No. 11 states that “it shall be presumed.” Instruction No. 12 states that “the trier of fact must find.” By their plain language, the instructions create a mandatory presumption of intoxication.

The next classification step is to determine whether the mandatory presumption is conclusive or rebuttable.

“Amandatory presumption may be either conclusive or rebuttable. A conclusive presumption removes the presumed element from the case once the State has proved the predicate facts giving rise to the presumption. A rebuttable presumption does not remove the presumed element from the case but nevertheless requires the jury to find the presumed element unless the defendant persuades the jury that such a finding is unwarranted.”

Francis, 471 U.S. at 314, n. 2, 105 S.Ct. at 1971, n. 2, 85 L.Ed.2d at 353, n. 2 (Citation omitted). A conclusive presumption eliminates the defendant’s right to challenge the presumed fact and violates due process if it goes to an element of the crime charged. Sandstrom, 442 U.S. at 524, 99 S.Ct. at 2459, 61 L.Ed.2d at 51.

The present presumption of intoxication is plainly not conclusive. Instruction No. 11 specifically provides that the presumption is rebuttable and does not limit the defendant’s ability to introduce contrary evidence. A reasonable juror could not have found anything but a mandatory rebuttable presumption of intoxication.

As the United States Supreme Court made clear in Francis, a mandatory rebuttable presumption is generally just as unconstitutional as a conclusive presumption because it commonly shifts the burden of persuasion to the defendant.

“A mandatory rebuttable presumption is perhaps less onerous [than a conclusive presumption] from the defendant’s perspective, but it is no less unconstitutional. Our cases make clear that such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.”

Francis, 471 U.S. at 317, 105 S.Ct. at 1972-73, 85 L.Ed.2d at 355 (Quotation and citation deleted); see also City of Missoula v. Shea (1983), 202 Mont. 286, 294, 661 P.2d 410, 414.

The final step in classifying the presumption of intoxication is one not yet reached by any United States Supreme Court decision. Mandatory rebuttable presumptions may be divided into those which shift the burden of persuasion to the defendant and those which shift the burden of production to the defendant. Ulster County, 442 U.S. at 157, n. 16, 99 S.Ct. at 2225, n. 16, 60 L.Ed.2d at 792, n. 16. The former type is represented by affirmative defenses which require the defendant to meet some specified degree of persuasion to overcome the presumption. Affirmative defenses do not violate due process so long as they do not supplant the traditional elements of the crime charged. Patterson v. New York (1977), 432 U.S. 197, 205, 97 S.Ct. 2319, 2324, 53 L.Ed.2d 281, 289.

The burden-of-production shifting presumptions, however, are much more problematic. They generally go to an element of the crime charged and allow the defendant to overcome the presumption by introducing any contrary evidence. The United States Supreme Court has not yet been faced with the question of whether such presumptions violate due process, Francis, 471 U.S. at 314, n. 3, 105 S.Ct. at 1971, n. 3, 85 L.Ed.2d at 353, n. 3, but the Court has indicated in dicta that they may be constitutional in some instances:

“To the extent that a presumption imposes an extremely low burden of production - e.g., being satisfied by ‘any’ evidence - it may well be that its impact is no greater than that of a permissive inference, and it may be proper to analyze it as such.”

Ulster County, 442 U.S. at 157, n. 16, 99 S.Ct. at 2225, n. 16, 60 L.Ed.2d at 792, n. 16. It would appear, however, that the United States Supreme Court’s supposition would not apply to the present case because the presumption of intoxication was presented to the jury.

Were we not looking through the eyes of a reasonable juror, we might understand Instruction No. 12 to make the presumption of intoxication a burden-of-production shifting presumption. Instruction No. 12 states:

“ ‘Presumption’ or ‘presumed’ means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence.”

The “unless or until” language indicates that the presumption might be overcome as soon as the defendant introduced any contrary evidence.

If this is a burden-of-production presumption, we must ask why it was given as a jury instruction. Such presumptions may serve several purposes, none of which appear to be constitutional when the presumption is presented to the jury. A burden-of-production presumption may establish the State’s prima facia case against the defendant’s motion for a directed verdict or it may streamline the prosecution by eliminating collateral issues, such as affirmative defenses, until raised by the defendant. See 1 Weinstein’s Evidence, ¶ 300[02] (1989). As a procedural device, the presumption presents a question of law for the court. A question of law has no place in the jury charge. State v. Poncelet (1980), 187 Mont. 528, 542, 610 P.2d 698, 706. In the present case, the appellant presented considerable evidence that he was not intoxicated at the time of the accident. As soon as he presented his first witness on the issue, the presumption of intoxication had served its purpose as a procedural device and should have been eliminated for the case. See United States v. Hendrix (2nd Cir. 1976), 542 F.2d 879, 882, cert. den. 430 U.S. 959, 97 S.Ct. 1609, 51 L.Ed.2d 810 (1977); Commonwealth v. Moreira (1982), 385 Mass. 792, 434 N.E.2d 196, 199; but see State v. Trujillo (1973), 85 N.M. 208, 510 P.2d 1079, 1084.

Like any other presumption, a burden-of-production presumption may also represent scientific, statistical, or common-knowledge evidence linking the predicate and presumed facts. See 1 Weinstein’s Evidence, ¶ 300[02] (1989). Montana’s presumption of intoxication is apparently based on evidence demonstrating that a person with a blood-alcohol level of greater than .10 cannot safely operate a motor vehicle. However, even if the presumption’s only function is to point out that well recognized relationship to the jury, it still should not be presented to the jury in a manner which places a burden of production on the defendant. If the defendant came forward with no contrary evidence, the presumption would act as a directed verdict for the State on the issue of intoxication. That would be contrary to the due process axiom that the criminal defendant is entitled to sit silent and go free if the prosecution fails to prove every element of the crime beyond a reasonable doubt. See State v. Greeno (1959), 135 Mont. 580, 592, 342 P.2d 1052, 1058. If, on the other hand, the defendant does present contrary evidence, as he did in this case, the presumption is overcome. Presenting the presumption to the jury then serves no purpose except to imply that the defendant has some burden of proof on an element of the crime. The danger of that implication was particularly great in this case because Instruction No. 12 was not unmistakably clear that the appellant could overcome the presumption by producing any evidence that he was not intoxicated.

A reasonable juror could easily have interpreted Instruction No. 12 as shifting the burden of persuasion to the appellant and not as merely shifting the burden of production. The instruction required the jury to find intoxication “unless and until evidence is introduced which would support a finding of its nonexistence.” It did not state what quantum of evidence was necessary to support a finding of its nonexistence. A reasonable juror may have believed that the appellant not only had to introduce contrary evidence, but that he had an affirmative duty to convince the jury that he was not intoxicated. As noted above, under Francis, such a mandatory rebuttable presumption which shifts the burden of persuasion to the defendant violates due process.

CORRECTIVE INSTRUCTIONS

An unconstitutional mandatory presumption charged to the jury cannot be cured by other instructions giving a correct statement of the law. The reviewing court cannot determine whether the jury improperly relied upon the unconstitutional instructions or properly relied on the correct instructions but found the defendant guilty anyway. Francis, 471 U.S. at 322, 105 S.Ct. at 1979, 85 L.Ed.2d at 358. It is, therefore, no answer to say that Instruction Nos. 3 and 8 informed the jury that the defendant was cloaked in a presumption of innocence throughout the proceeding and that the State could overcome that presumption only by proving every element of negligent homicide beyond a reasonable doubt.

HARMLESS ERROR

A resort to harmless error analysis also fails to save the unconstitutional instructions. Although at one time the United States Supreme Court refused to apply harmless error analysis to unconstitutional presumptions, Sandstrom, 442 U.S. at 526-27, 99 S.Ct. at 2460-61, 61 L.Ed.2d at 52-53, in Rose v. Clark the Court adopted the same harmless error test applied to other types of constitutional errors.

“[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless error analysis. ... Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, ... the judgment should be affirmed.”

Rose (1986), 478 U.S. 570, 579, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460, 471. A finding of guilt beyond a reasonable doubt does not require that defendant conceded the presumed fact. The question is to be determined from the entire record. Rose, 478 U.S. at 583, 106 S.Ct. at 3109, 92 L.Ed.2d at 474.

Here the record indicates that intoxication was a hotly debated trial issue. Several witnesses testified that the appellant had little to drink and did not appear to be intoxicated immediately before or after the accident. Two police officers, however, testified that the appellant later failed field sobriety tests. Both parties presented expert witnesses who testified for and against the accuracy of the breath test which registered .121. The evidence also conflicted on the appellant’s driving immediately prior to the accident and on how the accident occurred. The recorded evidence is not so clear that we can now step into the shoes of the jury and find the appellant guilty beyond a reasonable doubt. Compare People v. Hickox (Colo. App. 1987), 751 P.2d 645, 647-48 (presumption of intoxication held unconstitutional but harmless because the record contained overwhelming evidence of intoxication).

THE STATUTE

Our holding that the jury instructions on the presumption of intoxication were unconstitutional does not reach the statute itself. By its plain language, § 61-8-401, MCA, creates a mandatory rebut-table presumption of intoxication. When the 1983 Legislature amended the statute to make the presumption rebuttable, it considered the implications of Sandstrom and apparently decided that the statute was constitutional because the presumption was rebuttable. Consideration of H.B. 540 Before the Senate Judiciary Comm., 48th Leg., (February 10, 1983) at 3-4, and Exhibit A at 5-6 (Testimony of Asst. Att’y. Gen. Steve Johnson). In Francis, the United States Supreme Court nullified that theory by holding that even mandatory rebuttable presumptions are unconstitutional. Francis, 471 U.S. at 317, 105 S.Ct. at 1972-73, 85 L.Ed.2d at 355. Like every other state in the union, Montana adopted the presumption of intoxication to fulfill federal highway funding requirements. See 23 U.S.C. § 408(e)(1)(C); 23 C.F.R. § 1204.4, Highway Safety Program Guideline No. 8, IB. A number of states have saved their unconstitutional statutory versions of the presumption by reading indisputably mandatory language as permissive; in effect, the courts have held that “shall” means “may.” See e.g. Barnes v. People (Colo. 1987), 735 P.2d 869, 873; State v. Dacey (1980), 138 Vt. 491, 418 A.2d 856, 859.

We do not find it necessary to go to such lengths to avoid striking down the statute. The introductory language of § 61-8-401, MCA, provides that it applies to “any civil or criminal action or proceeding. ...” In some of the many contexts in which the presumption of intoxication might come into play, it may be constitutional; in others, it may not. That determination will depend on the purpose of the presumption, the type of proceeding, and the particular language used to convey the presumption to the jury. Under our holding today, the presumption of intoxication violates the criminal defendant’s right to due process only if the presumption goes to an element of the crime charged and a reasonable juror could read the presumption as mandatory.

CONCLUSION

The solution to the due process problems of using presumptions in jury charges is not, as was attempted in this case, to make them burden-of-production shifting presumptions. The solution is to make the presumptions unambiguously permissive.

“Because [a] permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the “beyond a reasonable doubt’ standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.”

Ulster County, 442 U.S. at 157, 99 S.Ct. at 2225, 60 L.Ed.2d at 792. While Montana has not yet done so, a large number of jurisdictions have followed the federal courts in adopting evidentiary rules which require that all presumptions presented to juries be clearly permissive. See 1 Weinstein’s Evidence, ¶ 303[08] (1989). In the present case, had the language of Instruction Nos. 11 and 12 been modified to make the presumption unmistakably permissive, the instructions would have passed constitutional muster.

In addition, we specifically disapprove the trial court’s use of Instruction No. 13, a civil instruction on proximate cause. In drafting appropriate instructions on causation on retrial, the trial court should refer to § 45-2-201, MCA, and to Instruction No. 14 of the Montana Criminal Instructions Guide, along with the evidence presented at trial.

By copy of this opinion, we ask the Supreme Court Commission on Rules of Evidence to consider the advisability of adopting a rule of evidence addressed to presumptions in criminal cases. See Uniform Rules of Evidence, Rule 303 (1974); also 1 Weinstein’s Evidence, ¶ 303 (1989).

The case is reversed and remanded for a new trial.

JUSTICES HARRISON, WEBER, HUNT, GULBRANDSON, Retired, sitting for JUSTICE McDONOUGH, HON. THOMAS HONZEL, District Judge, sitting for JUSTICE BARZ and HON. TED MIZNER, District Judge, sitting for JUSTICE SHEEHY concur.

ORDER

The State of Montana has filed a petition for rehearing of the Court’s September 18, 1990, Opinion in the matter. Defendant and appellant has filed his objection thereto.

Having considered the matter, the Court wishes to reemphasize that the Information filed against Leverett alleged that he drove his motor vehicle into a pedestrian at an unsafe rate of speed and with a blood alcohol concentration in excess of .10, and that Jury Instruction No. 10 provided that an alcohol concentration of. 10 or more shall be presumed to indicate that the person was under the influence of alcohol. Our decision does not propose any expansion of the holdings of Sandstrom v. Montana, (1979) 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39.

The petition for rehearing is DENIED.

/s/ J.A. Tumage, Chief Justice

/s/ William E. Hunt, Sr., Justice

Is/ Fred J. Weber, Justice

/s/ Hon. Thomas C. Honzel, District Judge, sitting for Justice Diane G. Barz

/s/ Hon. Ted L. Mizner, District Judge, sitting for Justice Sheehy

/s/ Hon. L.C. Gulbrandson, Retired Justice, sitting for Justice R.C. McDonough.


source: Caselaw Access Project

author: JUSTICE BARZ

license: Public Domain

text:
    ALEX E. SMITH and TRUDY L. SMITH, Husband and Wife, Plaintiffs and Respondents and Cross-Appellants, v. ROBERT L. JOHNSON and ANITA A. JOHNSON, Husband and Wife, Defendants and Appellants.
    No. 89-622.
    Submitted on Briefs June 14, 1990.
    Decided Sept. 6, 1990.
    Rehearing Denied Oct. 11, 1990.
    798 P.2d 106.

      James L. Stogsdill, Lewistown, for defendants and appellants.
    Thomas P. Meissner, Esq., Lewistown, for plaintiffs and respondents and cross-appellants.
   JUSTICE BARZ

delivered the Opinion of the Court.

The plaintiffs, Alex and Trudy Smith, initiated this action with a complaint for specific performance of a buy/sell agreement. The Smiths sought to compel defendants, Robert and Anita Johnson, to enter into a contract for deed in accordance with the terms of the buy/sell agreement. The District Court for the Tenth Judicial District, Fergus County, granted the Smiths’ motion for partial summary judgment on the issue of specific performance of the buy/sell agreement. After a bench trial on the remaining issue of damages resulting from the Johnsons’ failure to timely deliver possession of the real property, the District Court awarded the Smiths monetary damages in the amount of $3,594.05. The Johnsons appeal both the granting of partial summary judgment and the award of damages. The Smiths cross-appeal the amount of attorney’s fees and costs awarded. We affirm and remand.

The issues raised by the Johnsons on appeal are:

1. Did the District Court err by granting the Smiths’ motion for partial summary judgment?

2. Did the District Court improperly award specific performance in favor of the Smiths?

3. Did the District Court err by awarding monetary damages to the Smiths?

The Smiths present three additional issues on cross-appeal:

1. Did the District Court err in fixing the amount of attorney’s fees and costs awarded to the Smiths?

2. Are the Smiths entitled to attorney’s fees and costs on appeal?

3. Should sanctions be imposed against the Johnsons pursuant to Rule 32, M.R.App.P., for bringing this appeal?

Alex and Trudy Smith, the buyers, and Robert and Anita Johnson, the sellers, entered into two buy/sell agreements for the sale of two tracts of land near Lewistown, Montana. One agreement provided for the sale, by contract for deed, of a house and six acre tract. The transaction relating to the home tract has closed and is not part of the Smiths’ claim for specific performance. The other agreement provided for the sale, by contract for deed also, of87.337 acres of crop, pasture and timber land which adjoined the six acres. The buy/sell agreement on the acreage tract provided for a price of $40,000 with nothing down, amortized payments over fifteen years, interest at 9%, and the first payment due on December 30, 1989.

Both buy/sell agreements provided that the sales were to be closed on or before March 1, 1989. The parties agreed Mr. Johnson, who is a practicing attorney, was to prepare the contracts for deed and accompanying closing documents. However, Mr. Johnson did not submit anything for the Smiths’ review until March 1, and then only the proposed contracts for deed.

During the month of March the parties corresponded and negotiated with each other in attempt to reach an agreement on additional or different terms of the contracts for deed than those provided in the buy/sell agreements. Revised drafts of contracts were exchanged but were found by the parties to be unacceptable. Disagreement over when interest and real estate prorations would commence on the acreage tract became a “bone of contention” between the parties. The Johnsons believed that interest and tax prorations should commence on March 1, as provided in the buy/sell agreement. The Smiths proposed that since closing did not occur on March 1, as agreed, interest and tax prorations should commence on the actual date of closing.

On March 27, the Smiths, through their attorney, sent draft contracts to the Johnsons and conveyed to them through a letter that if the Johnsons did not wish to discuss any terms in addition to or beyond the buy/sell agreements, then both transactions should close in conformity with the buy/sell agreements. The Johnsons responded in a letter dated April 3 informing the Smiths that, due to what they perceived as an impasse on the financial aspects of the transaction, they were placing the acreage contract “on the back burner for awhile.” The Johnsons then re-leased the acreage tract to George Hamilton, the current tenant of the property, for a one-year term, beginning April 8.

After further negotiations, during which time the Johnsons maintained their position that the acreage contract was “on the back burner,” the parties finally agreed on a contract for the home and six acres. The Smiths paid the required down payment, the parties executed a contract for deed and the transaction was closed on approximately April 17. The terms of the contract are not in dispute.

On April 20, the Smiths filed their complaint in the District Court seeking: (1) a decree of specific performance, requiring the Johnsons to enter into a contract for deed for the acreage tract; and (2) money damages for loss of use of the property as a result of the Johnsons’ failure to deliver possession of the property in accordance with the buy/sell agreement.

I. Johnsons’Appeal

Did the District Court err by granting the Smiths’ motion for partial summary judgment?

“Summary judgment is proper pursuant to Rule 56(c), Mont.R.Civ.R, where the record discloses no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. All reasonable inferences that may be drawn from the offered proof are to be drawn in favor of the party opposing summary judgment.” (Citation omitted.)

Halcro v. Moon (1987), 226 Mont. 121, 123, 733 P.2d 1305, 1306.

The Johnsons contend the District Court improperly granted summary judgment in favor of the Smiths because there was a material question of fact concerning the Smiths’ willingness to perform in accordance with the exact terms of the parties’ buy/sell agreement. The Johnsons allege that they presented a contract on March 6 that was in conformity with the buy/sell agreement and that the Smiths refused to sign the contract. The Johnsons further argue that the Smiths were unwilling to perform in accordance with the buy/sell agreement because of their insistence that the commencement of interest and the proration of taxes take place on the actual date of closing instead of March 1, as provided in the buy/sell agreement. We disagree.

In directing the parties to enter into a contract strictly in accordance with the buy/sell agreement, including the term that commencement of interest and the proration of taxes would take place on March 1, the District Court noted that “[t]he dispute over specific performance herein does not arise over the buy/sell agreement the parties acknowledge entering, but rather over supplemental terms and conditions in the contract for deed to execute and fulfill the buy/sell.” And in its explanatory comment accompanying the court’s order denying the Johnsons’ motion to amend the judgment the court stated:

“In his own argument on the motions for summary judgment, Mr. Johnson acknowledged buy/sell agreements seldom contain all the terms that may go into a formal contract for deed, and that it is not uncommon for parties to do some negotiating about such additional terms after the execution of the buy/sell. Here both parties requested some other terms, and unfortunately could not reach agreement.”

The record clearly shows that the Johnsons breached the buy/sell agreement by placing the acreage contract “on the back burner,” refusing to discuss it farther or place the Smiths in possession, and renewing the lease of the property to a third party. Contrary to the Johnsons’ contention, the record reveals the Johnsons did not propose a contract conforming to the buy/sell agreement on March 6. The purchase price provision of that contract called for a total first payment of over $700 more than required in the buy/sell agreement. Moreover, although not as clear, the record shows that the Smiths were not unwilling to perform in accordance with the buy/sell agreement, but rather were merely attempting to resolve the final form of the contract for deed.

Negotiations of terms beyond the buy/sell agreement does not destroy the right to seek specific performance. In Somont Oil Co. v. Nutter (1987), 228 Mont. 467, 743 P.2d 1016, a party sought to avoid a contract, claiming the contract was merely “an agreement to agree” and that it was too vague to constitute a contract. This Court held that the agreement contained all the essential terms needed to constitute a contract and further stated:

“Admittedly, the agreement does not include every item that might have been included ... However, ‘a contract is not invalid simply because it does not contain all the provisions or conditions the parties might have incorporated into it.’ Wilkerson v. School District No. 15, Glacier County (Mont. 1985), [216 Mont. 203,] 700 P.2d 617, 621, 42 St.Rep. 745, 749,”

Somont Oil Co., 743 P.2d at 1019.

Even though the parties here attempted negotiations of additional terms, such does not affect the validity of the buy/sell agreement and the ability to maintain a suit for specific performance upon a breachof that agreement.

Furthermore, with regard to the commencement date of interest and the date of proration of taxes, the District Court could properly, as a matter of law, determine whether the buy/sell agreement contained an ambiguity. SAS Partnership v. Schafer (1982), 200 Mont. 478, 482, 653 P.2d 834, 836. During negotiations the Smiths proposed that since the transaction did not close on March 1, as agreed, interest and tax prorations should commence on the actual date of closing. In granting summary judgment and ordering that interest and the proration of taxes would commence on March 1, the District Court stated:

“While the printed part of the agreement states possession shall be on the date of closing ‘unless otherwise agreed,’ the typewritten part of the buy/sell plainly states, ‘First period payment will be from March 1st, 1989, to December 30th, 1989’, and section 1-4-105, MCA 1987, states, ‘when an instrument consists partly of written words and partly of a printed form and the two are inconsistent, the former control the latter.’ ”

The District Court, upon determining as a matter of law that an ambiguity does not exist, may properly grant summary judgment. See, Monte Vista Co. v. The Anaconda Co. (1988), 231 Mont. 522, 755 P.2d 1358.

We conclude the record in this case discloses no genuine issue of material fact and supports the award of partial summary judgment in favor of the Smiths.

Did the District Court improperly grant specific performance in favor of the Smiths?

In an argument nearly identical to their argument presented under the first issue, the Johnsons contend that the Smiths were not parties who could seek the remedy of specific performance. Section 27-1-411(4), MCA, provides that specific performance may be compelled when the parties to a contract have expressly agreed in writing that specific performance shall be an available remedy. The buy/sell agreement signed by the parties expressly provided for a remedy of specific performance. Having determined that the record shows the Johnsons did not propose a contract on March 6 which conformed to the buy/sell agreement and that the Smiths were not unwilling to perform in accordance with the provisions of the buy/sell agreement, we conclude the Smiths were parties who could seek specific performance.

We hold the District Court properly granted specific performance in favor of the Smiths.

Did the District Court err by awarding monetary damages to the Smiths?

The Johnsons assert that they were subjected to the Smiths’ “whipsawing in the matter of damages” and argue that the Smiths are responsible for their own damages, “real or imagined,” in that they failed to act reasonably in preventing or mitigating those damages.

The District Court found that the Johnsons’ actions in unilaterally terminating the negotiations between the parties, placing the sale of the acreage property “on the back burner,” and renewing the lease on the property to a former tenant for another year constituted an unjustified refusal to complete the transaction or convey the property. Accordingly, the court awarded the Smiths damages for loss of use of the property for approximately one year in the sum of $1,600, plus attorney’s fees and costs of $2,091.20, less an offset to the Johnsons of $97.15 for five-sixths of the 1989 taxes, for a total damage award of $3,594.05.

When reviewing the findings of fact in a civil action tried by a district court without a jury, this Court will not substitute its judgment for that of the trier of fact. Rather, our review is confined to determining whether the findings of fact are clearly erroneous. The court’s findings of fact will be presumed correct if supported by substantial evidence. Meridian Minerals Co. v. Nicor Minerals, Inc. (1987), 228 Mont. 274, 282-83, 742 P.2d 456, 461. We find the record contains substantial evidence justifying the award of damages.

II. Smiths’ Cross-Appeal

Did the District Court err in fixing the amount of attorney’s fees and costs awarded to the Smiths?

The District Court’s award of attorney’s fees and costs is discussed in the court’s Finding of Fact number 16, which states in part:

“Smiths also seek attorney fees and costs for the entire lawsuit. However, when the court granted partial summary judgment to plaintiffs it directed each side to pay its own fees and costs to that time, and now finds that such ruling was fair and equitable, and reaffirms it. However, as to additional time plaintiffs’ counsel has spent on various motions, briefs, damage issues and trial, the court finds plaintiffs are entitled to recover the same pursuant to written provision of the buy/sell agreement ... and plaintiffs are further entitled to allowable costs since summary judgment of $165.20 ... Said costs are as follows: George Hamilton deposition $130.20; Witness fee $10.00; Judgment fee $25.00.”

The Smiths do not contest the award of attorney’s fees from the time of partial summary judgment, but argue that attorneys fees incurred prior to such time should be awarded.

The buy/sell agreement contains an attorneys fee provision which states:

“In any action brought by the Buyer or the Seller to enforce any of the terms of this agreement, the prevailing party in such action shall be entitled to such reasonable attorney fees as the court or arbitrator shall determine just.”

The fixing of attorney’s fees is largely within the discretion of the district court and will not be disturbed absent a clear abuse of that discretion. In Re Marriage of Milanovich (1985), 215 Mont. 367, 370-71, 697 P.2d 927, 929. The record contains substantial evidence to support the conclusions of the District Court concerning attorney’s fees. We find no abuse of discretion.

The District Court awarded the Smiths costs from the time of partial summary judgment in the amount of $165.20. The total costs claimed by the Smiths are $345.20. Section 25-10-101(5), MCA, provides that “Costs are allowed, of course, to the plaintiff upon a judgment in his favor... in an action which involves the title or possession or right of possession of real estate ...” Under § 25-10-101, MCA, allowable costs are recoverable by the plaintiff upon timely application. See, Medhus v. Dutter (1979), 184 Mont. 437, 447, 603 P.2d 669, 674; State v. Cronin (1978), 179 Mont. 481, 491, 587 P.2d 395, 401. We therefore remand for determination of allowable costs incurred prior to the time of partial summary judgment.

Are the Smiths entitled to attorney’s fees and costs on appeal?

The District Court made numerous findings regarding the assessment of attorney’s fees and costs concluding that if the Johnsons’ appeal is unsuccessful they should be subject to assessment of the Smiths’ costs and attorney’s fees in defending such appeal. This Court has previously held that “[wjhere an award of attorneys’ fees is based on a contract, the award includes attorneys’ fees generated on appeal.” Lauderdale v. Grauman (1986), 223 Mont. 357, 359, 725 P.2d 1199, 1200. In regard to costs on appeal, such are automatically awarded to the successful party under Rule 33, M.R.App.P. Walker v. Warner (1987), 228 Mont. 162, 167, 740 P.2d 1147, 1150. We find that, as the prevailing party on appeal, the Smiths are entitled to reasonable attorney’s fees and costs.

Should sanctions be imposed against the Johnsons pursuant to Rule 32, M.R.App.R, for bringing this appeal?

The Smiths contend they are entitled to an additional award of damages, arguing that the Johnsons’ appeal on the issue of specific performance is frivolous.

Rule 32, M.R.App.R, provides:

“If the supreme court is satisfied from the record and the presentation of the appeal in a civil case that the same was taken without substantial or reasonable grounds, such damages maybe assessed on determination thereof as under the circumstances are deemed proper.”

Where a reasonable ground for appeal exists, sanctions or damages are not appropriate under Rule 32, M.R.App.P. Searight v. Cimino (1988), 230 Mont. 96, 103-04, 748 P.2d 948, 952; Erdman v. C & C Sales, Inc. (1978), 176 Mont. 177, 184, 577 P.2d 55, 59. In the present case, the question of whether the District Court properly granted partial summary judgment was reasonably in issue. We find no basis for imposing sanctions against the Johnsons.

We affirm and remand for determination of reasonable attorney’s fees and costs on appeal and for determination of allowable costs pursuant to § 25-10-101(5), MCA.

JUSTICES SHEEHY, HUNT, McDONOUGH and WEBER concur.


author: JUSTICE HARRISON JUSTICE SHEEHY,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CLARENCE CHAMPAGNE, Defendant and Appellant.
    No. 90-032.
    Submitted on Briefs Sept. 6, 1990.
    Decided Oct. 23, 1990.
    Rehearing Denied Nov. 27, 1990.
    800 P.2d 154.
    Arthur J. Thompson, Thompson & Sessions, Billings, for defendant and appellant.

      Marc Racicot, Atty. Gen., Elizabeth L. Griffing, Asst. Atty. Gen., Helena, Harold Hanser, County Atty., Teresa O’Connor, Deputy County Atty., Billings, for plaintiff and respondent.
   JUSTICE HARRISON

dehvered the Opinion of the Court.

The District Court of the Thirteenth Judicial District, Yellowstone County, revoked defendant’s suspended sentence to five years in the Montana State Prison. Defendant appeals this order. We affirm.

The issue before this Court for review is whether the defendant was denied due process of the law.

On December 29, 1988, Clarence Champagne, defendant, was charged by information with the offense of conspiracy as defined by § 45-4-102, MCA. On May 9,1989, Champagne entered a plea of guilty to the offense, and on June 27,1989, he was sentenced to the Montana State Prison. The sentence was completely suspended on a special condition that he abide by the rules of the Intensive Supervision Program.

On or about October 3, 1989, a Petition for Revocation of Suspended Sentence was filed. A hearing was set on the petition for October 17, 1989. On October 17, 1989, defendant appeared with counsel and admitted the truth of the allegations contained in the petition. Based on the evidence presented, the District Court found that the defendant violated the terms of his suspended sentence. The District Court set pronouncement of judgment for November 14, 1989.

On November 14, 1989, defendant appeared with counsel and, after hearing testimony, the District Court continued the sentencing until November 21,1989. On November 21, 1989, the District Court revoked defendant’s suspended sentence, and ordered him to serve a term of five years in the Montana State Prison. From this order revoking defendant’s suspended sentence defendant now appeals. We affirm the District Court’s revocation of defendant’s suspended sentence.

The facts are as follows:

On the morning of December 25, 1988, defendant and two other men were involved in the robbery of a Kwik Way convenience store in Billings, Montana. Defendant was the driver of the car used by the three men and remained in the car during the robbery. Defendant was charged with, and pled guilty to, conspiracy.

Prior to sentencing, the District Court reviewed defendant’s presentence report which reflected a history of drug and alcohol abuse. The District Court then sentenced Champagne to a five year term in the Montana State Prison. The sentence was suspended on the usual conditions of probation. Under these conditions defendant was not to drink any intoxicating liquor or use any narcotic or dangerous drugs without a doctor’s prescription and to conduct himself in a law abiding manner. In addition, defendant was to abide by the rules of the Intensive Supervision Program, which is an intensive out-patient program. Defendant was expressly told that any violation of the rules of the Intensive Supervision Program could result in the revocation of his suspended sentence.

On October 4,1989, a petition for revocation of the order suspending the sentence was filed with the District Court. A report from Randy Gowen, defendant’s probation officer, was attached to the petition and outlined the reasons supporting revocation of the suspended sentence. In the report, the probation officer stated that in the late evening hours of September 16, 1989, defendant assaulted his girlfriend outside of a SuperAmerica convenience store. Witnesses stated that he pulled her hair, twisted her arm and dragged her on the ground until defendant had her on the east side of the building, where he continued to punch and kick her while she lay on the ground. At that time defendant began stomping on her head and quit only when he heard the police approaching.

On October 17, 1989, a hearing was held before the District Court on the revocation petition. At this hearing the defendant admitted to the truth of all the allegations contained in the petition. In particular, the defendant admitted that he did violate Intensive Supervision Rules Nos. 1, 9, and 14; and Court Rules Nos. 1 and 3. With respect to the above rules, the District Court found the defendant to have violated the following:

Intensive Supervision Rule No. 1 in that defendant on September 16,1989, was out of his residence without permission of his supervising officer.

Intensive Supervision Rule No. 9 and Court Rule No. 1 in that the defendant indicated that on the evening of September 16, 1989, he had consumed a handful of pills and was drinking alcohol.

Intensive Supervision Rule No. 14 and Court Rule No. 3 in that the defendant on September 16, 1989, violently attacked and assaulted his girlfriend beside a convenience store. Her injuries required that she be placed in the hospital overnight for observation. She received many cuts, scratches, contusions and hematomas as a result of the attack.

Pronouncement of judgment was set for November 14, 1989.

At the November 14 hearing, defendant again admitted the truth of the allegations contained in the petition. Defendant also testified that he had voluntarily tried to obtain treatment for his alcohol and drug abuse problems but was denied that opportunity by those in the Intensive Supervision Program. The State called no witnesses. The District Comb deferred the sentencing hearing for one week until November 21, 1989.

At the commencement of the hearing on November 21, 1989, the District Court noted that defendant’s probation officer, Mr. Gowen, had not testified at the November 14 hearing but was now present and could be called by the State as a witness. Over objection of defense counsel, Mr. Gowen was allowed to testify.

Gowen testified that defendant had requested residential treatment but was denied residential treatment because he had already been through a number of residential treatment programs from which he had not ostensibly benefited. Defendant himself verified that he had attended at least four residential treatment centers in the towns of Glasgow, Hazelton, Sheridan and Galen.

After the November 21 hearing the District Court issued its written order revoking defendant’s suspended sentence.

Additional facts will be presented as necessary.

The issue is whether defendant was denied due process of the law.

Defendant claims that the District Court’s decision to revoke his suspended sentence was based on improper ex parte communication between the probation officer and the District Court which occurred during the week the November 14 sentencing hearing was deferred. Defendant argues that this ex parte communication violated his rights to due process. At the November 21 sentencing hearing, Mr. Gowen was examined and testified regarding his communication with the District Court.

“Q. [By defense counsel] Is it fair to say that you and members of your office were disturbed that Mr. Champagne did not have his suspended sentence revoked last week?
“A. [By Mr. Gowen] Surprised.
“Q. It was your understanding that his suspended sentence had not been revoked; is that correct?
“A. I did not think he had his sentence revoked, but that the action was still pending, and that I was to come to court and give this version of the story.
“Q. Was that something you learned from what happened last Tuesday, or something you learned from discussing the matter with Judge Fillner between last Tuesday and now?
“A. I believe I discussed the case with you that very same day, and with other people in my office, then later with Judge Fillner.
“Q. And you and other members of your office have had ex parte communications with the Court with regard to this matter?
“A. Ex parte, meaning what?
“Q. Meaning by yourself.
“A. Just you and the Judge. I discussed it briefly with Judge Fillner.
“Q. Were counsel for either party present?
“A. No. I had talked to you early last week about the same matter and my feelings.
“Mr. Thompson: Nothing farther.”

Our inquiry is whether the admitted ex parte communication between Gowen and the District Court was designed to “influence judicial action”, thereby denying appellant due process.

The record before us on review is wanting of objective evidence which establishes that Gowen’s private discussion with the District Court was “designed to influence” the District Court’s revocation of defendant’s suspended sentence. During cross exam, defense counsel had the opportunity to inquire of Gowen the specific details of Gowen’s ex parte communication with the District Judge, but did not do so. Such inquiry on cross-examination could have elicited what statements Gowen made to the District Judge, and the purpose Gowen had in making the ex parte communication. Rather, defense counsel only established that the communication between Gowen and the District Court was, in fact, private or ex parte.

Because the record fails to disclose any material evidence that the ex parte communication of Gowen with the District Judge was intended to or did influence the court in revoking appellant’s suspended sentence, we hold that defendant was not denied due process and affirm the District Court in revoking defendant’s suspended sentence.

Defendant next contends that the hearing on November 14 resulted in a final order that denied revocation of the suspended sentence. Defendant further contends that the District Court cannot, at a later date, revise this final order based on ex parte communications. We find that defendant’s characterization of the November 14 hearing is incorrect.

On November 14, the District Court stated that it would give defendant “one more chance” but then tempered this statement by deferring the revocation hearing until November 21. It appears from the record that the November 14 hearing was deferred so that the evidence and testimony presented could be reviewed together with testimony from Gowen regarding defendant’s statement in court that he was prevented by his supervising officer from attending a mental health center.

Indeed, on November 21, Gowen’s testimony was allowed solely to rebut defendant’s earlier testimony that defendant was denied voluntary residential treatment by those at the Intensive Supervision Program. We further find that no order was signed at the conclusion of the November 14, 1989 hearing. One week intervened while this hearing to revoke the suspended sentence was deferred. At the close of the November 21, 1989 hearing, the District Court signed a final order revoking the suspended sentence. This order was based on substantial evidence contained in the record on appeal. We find that the record on appeal is replete with substantial evidence to support the revocation of the suspended sentence. We hold that the District Court did not deny defendant his right to due process by revoking his five year suspended sentence. The District Court’s order is affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HUNT, McDONOUGH and WEBER concur.

JUSTICE BARZ did not participate.

JUSTICE SHEEHY,

concurring:

The record fails to show what influence, if any, the ex parte communication before the November 21 hearing of Gowen had on the district judge. For that reason, I agree with the Opinion.

I suppose in this work-a-day world of handling and sentencing convicted criminals, out-of-court contacts between judges and their probation officers are bound to occur. When the appearance arises, as in this case, that such a contact occurred which may have swayed the Court to change its mind, the gloss of fairness in the system, as perceived by the defendant, dissipates. I suggest to all of the judiciary that pre-sentence reports in writing, with access thereto for all counsel, without oral amplification except in open court, is by far the better way to proceed.


author: CHIEF JUSTICE TURNAGE

text:
    JAMES ANDRE MORRIS, Deceased, and IRENE MORRIS, Claimant and Respondent, v. MONTANA FORWARD, Employer, and STATE COMPENSATION MUTUAL INSURANCE FUND, Insurer and Appellant.
    No. 90-195.
    Submitted on Briefs Aug. 23, 1990.
    Decided Oct. 23, 1990.
    799 P.2d 1063.

      Elizabeth A. Horsman, State Compensation Mut. Ins. Fund, Helena, for insurer and appellant.
    Norman H. Grosfield, Helena, for claimant and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The State Compensation Mutual Insurance Fund appeals the determination of the Workers’ Compensation Court that J ames Andre Morris was an employee of Montana Forward at the time of his death. We affirm.

The issues are:

1. Did the court err in determining that, at the time of his death, James Andre Morris was an employee of Montana Forward entitled to benefits under the Montana Workers’ Compensation Act?

2. Did the court err in admitting the testimony of Milton McKee Anderson regarding conversations he had with Morris?

James Andre Morris was fatally injured in an airplane accident near Helena, Montana, on April 8, 1988. At the time of the accident, he was piloting for gubernatorial candidate Jim Waltermire, on a campaign trip. “Montana Forward with Waltermire” (Montana Forward) was the Waltermire campaign organization.

Morris owned and operated Dillon Flying Service, a charter air service in Dillon, Montana. The plane Morris was piloting for Waltermire was neither owned nor operated by Dillon Flying Service. Another individual had donated the use of the plane to the campaign. Morris had twice before flown that plane for the campaign, at a rate of $25 per horn or $100 per day plus expenses and subject to his availability with regard to his charter service.

Morris’s widow filed a claim for workers’ compensation death benefits. The claim was denied by the insurer, State Compensation Mutual Insurance Fund (State Fund), on the basis that Morris was an independent contractor with Montana Forward. Mrs. Morris petitioned the Workers’ Compensation Court to resolve the dispute. After analyzing the facts of the case as presented at trial, the court concluded that Morris was an employee of Montana Forward at the time of his death and that he was entitled to coverage under the Workers’ Compensation Laws of Montana.

I

Did the court err in determining that, at the time of his death, James Andre Morris was an employee of Montana Forward entitled to benefits under the Montana Workers’ Compensation Act?

We recently restated our standard of review of decisions of the Workers’ Compensation Court:

“Decisions of the Workers’ Compensation Court will not be overturned if there is substantial evidence to support its findings and conclusions. Where findings are based on conflicting evidence, the reviewing court’s function is confined to this determination; it is not the court’s function to determine whether there is sufficient evidence to support contrary findings.”

Gaumer v. Montana Dept. of Highways (Mont. 1990), [243 Mont. 414,] 795 P.2d 77, 79, 47 St.Rep. 1202, 1205 (Citations omitted).

Under Montana’s statutory scheme, if Morris was not an “independent contractor,” he was entitled to benefits under the Montana Workers’ Compensation Act as an employee of Montana Forward. See §§ 39-71-117, -118, -120, -401, MCA. An “independent contractor” is

“one who renders service in the course of an occupation and:
“(a) has been and will continue to be free from control or direction over the performance of the services, both under his contract and in fact; and
“(b) is engaged in an independently established trade, occupation, profession or business.”

Section 39-71-120(1), MCA. It is not disputed that Morris was engaged in an independently established trade or business. The State Fund argues that he was an independent contractor because he was free from Montana Forward’s control as well.

The four factors considered when examining right of control are: (1) direct evidence of right or exercise of control; (2) method of payment; (3) furnishing of equipment; and (4) right to fire. Sharp v. Hoerner Waldorf Corp. (1978), 178 Mont. 419, 425, 584 P.2d 1298, 1301-02, citing Larson, Workmen’s Compensation Law, Vol. 1A, §44.31, pp. 8-35. When the Workers’ Compensation Court analyzed those factors, it concluded that Morris was an employee of Montana Forward.

The court pointed out that the direct evidence of control by Montana Forward over Morris was limited to when and where he would work. However, it recognized that the specialized skills of a pilot preclude anyone who is not a pilot from exercising control over details of operating a plane. The court stated “[standing alone, this factor would likely not be sufficiently persuasive either in favor of employment or against it.”

Morris was paid $25 per hour or a minimum of $100 per day. Payment for time is strongly indicative of an employment relationship rather than an independent contractor relationship. Sharp, 584 P.2d at 1302. As Montana Forward points out, the effect of this general rule is lessened by the testimony indicating that independent air charter services often calculate rates based on flight time.

Montana Forward argues that because it had no investment in the plane and was not responsible for repairs on the plane, the “furnishing of equipment” factor indicates that Morris was an independent contractor. We disagree. The use of the plane was given to Montana Forward, not to Morris. Montana Forward paid all non-pilot costs for the plane and it could have hired any qualified pilot to fly it. Clearly the campaign acquired the plane and furnished it to Morris.

There was no written agreement concerning any right of Montana Forward to fire Morris. The testimony, however, indicated that Montana Forward would have had the right to obtain another pilot and fire Morris at any time, with a probable obligation to pay Morris for the time required to get home, were he fired mid-trip.

The Workers’ Compensation Court concluded that “the latter three criteria enumerated by Professor Larson... support a conclusion that Morris was an employee of Montana Forward on April 8,1988 when he died.” It pointed out that an independent contractor relationship is estabhshed “usually only by a convincing accumulation of these and other tests, while employment can if necessary often be solidly proved on the strength of one of the four items.” Sharp, 584 P.2d at 1302, citing Larson. As further noted in the court’s findings, Morris did not obtain an exemption from workers’ compensation insurance as an independent contractor as allowed under 24.29.207, ARM.

We conclude that substantial evidence supports the findings and conclusions of the Workers’ Compensation Court that Morris was an employee under the control of Montana Forward. We hold that the court did not err in determining that Morris was entitled to workers’ compensation benefits.

II

Did the court err in admitting the testimony of Milton McKee Anderson regarding conversations he had with Morris?

Milton McKee Anderson was Morris’s friend and his personal and business insurance agent. In Anderson’s deposition, he testified over the State Fund’s objection about several conversations he had with Morris about the Waltermire campaign and Morris’s service to the campaign. The State Fund argues that this testimony is hearsay, is neither rehable nor probative because Anderson was not actually involved with the campaign, and should have been stricken from the record.

The conclusions and judgment of the Workers’ Compensation Court make no reference to Anderson’s testimony. The only mention of that testimony is a reference in the findings of fact to Anderson’s statement that the pilot makes the decision whether or not to fly in adverse weather, a statement also made by another witness. The State Fund has not made any showing that the disputed testimony affected the judgment and the record does not show prejudice from the testimony. We conclude that no prejudicial error has been shown.

Affirmed.

JUSTICES HARRISON, BARZ, HUNT, McDONOUGH and SHEEHY concur.

JUSTICE WEBER did not participate.


author: JUSTICE HARRISON JUSTICE McDONOUGH,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOHN DESKINS, Defendant and Appellant.
    No. 90-123.
    Submitted on Briefs July 13, 1990.
    Decided Oct. 24, 1990.
    799 P.2d 1070.

      Howard Toole, Missoula, for defendant and appellant.
    Marc Racicot, Atty. Gen., James Yellowtail, Asst. Atty. Gen., Helena, Robert Deschamps, III, County Atty., Missoula, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Defendant and appellant, John Deskins, was charged in the District Court of the Fourth Judicial District, Missoula County, on June 23, 1989, with the offense of criminal possession of dangerous drugs with intent to sell. He appeals the denial of his motion to suppress the results of a search by Missoula City Police pursuant to a May 25, 1989 search warrant issued by District Court Judge Jack L. Green. We affirm.

The only issue before this Court is whether the District Court erred in failing to grant the appellant’s motion to suppress.

On May 23, 1989, Missoula City Police Officer Vincent Sparacino received a Crimestoppers’ report from an anonymous caller. The caller stated that he had been taken into the basement of a greenhouse located at 600 or 602 South Avenue East in Missoula, and had been shown a marijuana growing operation. Officer Sparacino arranged to have the caller contact the Narcotics Unit the next day. The following day, May 24, 1989, Missoula Police Detective Rocky Harris received a Crimestoppers’ report regarding the same marijuana growing operation. The caller identified himself as the same caller who had talked to Officer Sparacino the previous day.

As a result, Detective Harris contacted the county assessor’s office and verified that the owners of the property on South Avenue East were John and Nancy Deskins. He also contacted the treasurer’s office to confirm the issuance of the resident license to Nancy Deskins for the operation of a day care facility on the property and to check names of the registered owners of the vehicles parked on the property. The vehicles on the property were registered to Mr. and Mrs. Deskins. When Detective Harris checked with the Montana Power Company to substantiate the registered names for the utility service to the two addresses, the registration revealed the name of John Deskins.

Based upon the knowledge that marijuana cultivation operations often consume a significant amount of electricity, Detective Harris obtained an investigative subpoena to gain access to the records of the electrical consumption at the Deskins’ property. These records for the residential portion of the Deskins’ property (600 South Avenue East) showed the power consumption for the residential half of the duplex as follows:

Interval Kilowatt Hours Consumed
9/26/88- 10/25/88 378 KWH
10/25/88-10/31/88 81 KWH
10/31/88-11/22/88 298 KWH
11/22/88-11/30/88 148 KWH
11/30/88-12/21/88 390 KWH
12/21/88-1/20/89 494 KWH
1/20/89-2/21/89 421 KWH
2/21/89-3/22/89 525 KWH
3/22/89-3/31/89 167 KWH
3/31/89-4/20/89 371 KWH
4/20/89-5/22/89 1567 KWH

Electrical consumption records for the other portion of the property, the day care at 602 South Avenue East, revealed the following:

Interval Kilowatt Hours Consumed
9/26/88- 10/25/88 931 KWH
10/25/88- 10/31/88 176 KWH
10/31/88- 11/22/88 645 KWH
11/22/88- 11/30/88 300 KWH
11/30/88- 12/21/88 787 KWH
12/21/88- 1/20/89 364 KWH
1/20/89- 2/21/89 1442 KWH
2/21/89- 3/22/89 1035 KWH
3/22/89- 3/31/89 276 KWH
3/31/89- 4/20/89 612 KWH
4/20/89- 5/22/89 901 KWH

Detective Harris, who has had extensive training in narcotics investigations and knowledge pertaining to electrical power consumption for average household usage and for a typical marijuana cultivation operation, testified that from his training and experience the Deskins’ electrical consumption records reflected a cyclical use of power that was not explained seasonally. Detective Harris concluded that the Deskins’ electrical consumption records were consistent with the Crimestoppers caller’s observation of the marijuana cultivation operation, and as a result he prepared an application for a search warrant of the property.

On May 25,1989, pursuant to a search warrant issued by District Court Judge Jack L. Green, members of the Missoula Police Department conducted a search of the duplex located at 600 and 602 South Avenue East owned by the appellant and his wife. The search revealed a large quantity of marijuana, 250 marijuana plants, and equipment used in the cultivation of marijuana, namely sodium grow lamps, fans, and scales.

In addition to the marijuana plants and equipment, the following firearms were also taken pursuant to the May 25, 1989, search: a loaded Fox .12 gauge shotgun; an H & K SL .223 rifle with a loaded magazine; a Western Field single shot .22; a Ruger Mini 14 with a loaded magazine; a Wards Western Shotgun, loaded; a Chief Special revolver .38 caliber, loaded; and a Game Getter antique pistol, loaded.

On June 23, 1989, the appellant was charged in Missoula County District Court with the offense of criminal possession of dangerous drugs with intent to sell. On August 23, 1989, the appellant filed a motion to suppress the results of the May 25, 1989, search, alleging insufficient probable cause for the issuance of the search warrant.

The suppression hearing was held August 24,1989. At the suppression hearing, Officer Sparacino’s record of the Crimestoppers’ call of May 23, 1989, was admitted into evidence. In addition, Detective Harris testified at the hearing regarding the substance of his conversation with the Crimestoppers caller. The person called stating he had seen a marijuana growing operation in the residence of Morgan Deskins. The person said that there were two other individuals living there, the father and the mother, John and Nancy Deskins, and that this residence also housed a day care. Furthermore, the person was personally shown this operation.

Detective Harris also testified the caller stated that the marijuana was grown in two-and-one-half or three-month cycles and that the caller had seen growing marijuana plants in the Deskins’ residence a month previously. The caller also told Harris that “there were fluorescent sodium lamps hanging over the plants.”

It should be noted that the search warrant application indicated that the electrical consumption records obtained by Harris were presented to the reviewing judge in conjunction with the actual application. However, at the time of the hearing on the motion to suppress, no such records were present with the search warrant application in the District Court’s file. While the appellant alleges that the reviewing judge had only the “conclusive allegations” of the applicants with respect to the information conveyed by the foregoing records, this is contradicted by the fact that the application contained a synopsis of the electrical records.

Following the denial of the motion to suppress the evidence seized, the appellant entered a plea of guilty to the offense, and the matter is now presented to us on the question of the validity of the search.

The appellant in his argument notes that under the provisions of § 46-13-302(4), MCA, the burden of proving the illegality of a search and seizure is upon a defendant. State v. Baldwin (Mont. 1990), 789 P.2d 1215, 1220, 47 St.Rep. 614, 620. In Baldwin, this Court held that there is a presumption that a magistrate properly issued the search warrant after subjecting the application to the totality of the circumstances test set forth in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527.

We have previously held in State v. District Court of the Eighth Judicial District (1978), 176 Mont. 257, 264, 577 P.2d 849, 859 and State v. Lane (1977), 175 Mont. 225, 236, 573 P.2d 198, 202, that a judicial decision granting a search warrant is presumed correct on appeal.

In addition, in State v. Hembd (1989), 235 Mont. 361, 767 P.2d 864, this Court held that “[t]he reviewing court’s examination is limited to whether the magistrate had a substantial basis for concluding probable cause existed.” Hembd, 235 Mont. at 366, 767 P.2d at 868. We have noted that the determination of probable cause is entitled to “great deference” from a reviewing court. Sundberg, 235 Mont. 115 at 123, 765 P.2d 736 at 741.

The probable cause requirement sufficiently establishes a probability rather than a prima facie case “that incriminating items, namely items reasonably believed to be connected with criminal behavior, are located on the property to which entry is sought.” Sundberg, 235 Mont. at 119, 765 P.2d at 739. “That probability will be determined using a totality of the circumstances analysis, based upon the circumstances set forth in the affidavit.” Hembd, 235 Mont. at 366, 767 P.2d at 867 (Citation omitted). Following Illinois v. Gates, this Court has held that information in the form of an anonymous tip from an informant whose reliability is established by independent corroboration may serve to establish probable cause.

“We note in passing, however, that the use of anonymous tips as an element in obtaining a search warrant has been sustained by the United States Supreme Court in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed. 2d 527, and by the Montana Supreme Court in State v. Kelly (1983), [205 Mont. 417,] 668 P.2d 1032, 40 St.Rep. 1400, where other corroborating evidence is shown.”

State v. Cain (1986), 220 Mont. 509, 515, 717 P.2d 15, 19.

In the present case, the search warrant application recites the informant’s statement that he had been in the appellant’s basement one month previously at the invitation of the appellant’s son and personally observed growing marijuana plants. Personal observation of criminal activity by an informant whose reliability can be established provides probable cause. State v. Walston (1989), 236 Mont. 218, 222-23, 768 P.2d 1387, 1390.

We find that, clearly, there was a substantial basis for the District Court’s conclusion that probable cause was “readily ascertainable.”

The appellant attempts to undermine the showing of probable cause by citing a number of so-called inconsistencies in the evidence. First, the appellant alleges that the State has a burden to inform the reviewing magistrate of any criminal history on the part of the suspect when applying for a search warrant, and because he had no criminal history, the State fell short of its burden when applying for the search warrant. However, appellant cites no authority for the proposition.

Secondly, appellant cites an alleged inconsistency in the informant’s tip. The search warrant application stated the informant had been on the Deskins’ property thirty days before he contacted the law enforcement authorities. The testimony of Officer Sparacino indicated the informant had been on the premises “a couple of days earlier.” The appellant now points to this discrepancy as error. The State explains the inconsistency as merely a lack of recollection. Because Officer Sparacino did not, at the time of the informant’s call, document the date and time when the informant claimed to have been on the Deskins’ property, Officer Sparacino had no record of that date to refer to when testifying three months later. We find this alleged inconsistency without merit.

We find, after carefully considering the case authority in this matter, that the arguments of the appellant are without merit and the judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ and WEBER concur.

JUSTICE McDONOUGH,

respectfully dissenting:

The search of the Deskins’ home does not comply with the policies which are articulated in the Fourth Amendment to the United States Constitution and the right to be free from unreasonable searches (Article II, Section 11), and the right of privacy (Article II, Section 10) embodied in the Constitution of the State ofMontana. For this reason, I would reverse.

The policies embodied in the above Amendment and articles grew directly out of events which immediately preceded the revolutionary struggle with England. Due to their experience with unrestrained search and seizure by means of automatic issuance of writs of assistance, the colonists viewed the prohibition of unreasonable searches and seizures of utmost importance. As a result, after the signing of the Declaration of Independence, at least eight states included such prohibitions in their constitutions. Perry and Cooper Sources of Our Liberties (1959). Eventually the federal government followed this lead through its enactment and the states’ ratification of the Bill of Rights.

These freedoms should not be lost by the exigencies of our times. The right to be free from unreasonable search and seizure is of paramount importance to a free society. Following his return from the Nuremberg trials Justice Jackson observed:

“[Fourth Amendment rights] are not mere second class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government...”

See Almeida-Sanchez v. United States (1973), 413 U.S. 266, 37 L.Ed.2d 596, 93 S.Ct. 2535 citing Brinegar v. United States (1948), 338 U.S. 160, 180, 93 L.Ed. 1879, 1893, 69 S.Ct. 1302, 1313 (Jackson dissenting).

Consistent with these sentiments, the framers of our State Constitution have prohibited state officials from conducting unreasonable searches and seizures of property. This prohibition is contained in Article II, Section 11 of the Montana Constitution. It states:

“The people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized or without probable cause, supported by oath or affirmation reduced to writing.”

As this article indicates, government officials must apply to the courts for permission to search a person’s property. Before this permission can be granted, the judiciary must determine whether there is probable cause to believe that evidence of illegal activity will be found in the place to be searched. Courts have spent a great deal of time attempting to formulate a test which can be utilized in probable cause determinations. The United States Supreme Court, in Illinois v. Gates (1983), 462 U.S. 213, 76 L.Ed. 2d 527, 103 S.Ct. 2317, has adopted a totality-of-the-circumstances test.

According to this test, a reviewing magistrate need only make a common sense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that evidence of a crime will be found in a particular place. Therefore, if from a review of the totality of the circumstances it reasonably appears that criminal evidence is present at the locale to be searched, a search warrant could legally be issued. Gates, 462 U.S. at 238, 103 S.Ct. at 2332. Following the Gates decision, this Court followed federal lead and adopted the same totality of the circumstances approach. State v. Kelly (1983), 205 Mont. 417, 668 P.2d 1032.

Many commentators, fellow judges and legal scholars have expressed strong disagreement with the principles set forth in Gates. Justice Byron White for example, while concurring in the outcome of the Gates case, disagreed with the majority’s decision to adopt the totality of the circumstances test. He expressed concern that utilization of the totality of the circumstances test would result in “an evisceration of the probable cause standard.” Gates, 462 U.S. at 272, 103 S.Ct. at 2350 (White concurring).

The case now before us proves Justice White to be correct. Gates is a step backward in the development of any set of coherent rules to deal with information supplied by an informant. As stated in Gates, “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. at 2332.

The Gates decision, however, fails to adequately define or limit the term “practical, common-sense decision.” Utilization of this broad standard has rendered probable cause determinations involving hearsay information, essentially subjective. Through their use of this “common-sense” approach, the courts have turned probable cause determinations into an art form which is not based on any reason or rule of law. For this same reason appellate review of search warrant decisions is difficult, because there are no real standards of review, except the appellate judge’s view of “practical common sense.” Due to the use of such a subjective test, inconsistencies between magistrates and reviewing trial courts are sure to arise and the application of common law will be thwarted.

Previous to the Gates decision, the courts used the two-prong Aguilar-Spinelli test when making probable cause determinations. See Aguilar v. Texas (1964), 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509; Spinelli v. United States (1969), 393 U.S. 410, 21 L.Ed. 2d 637, 89 S.Ct. 584. As the previous paragraphs indicate, probable cause is an innocuous concept which involves legal intricacies as well as everyday common sense. In recognition of this concept, the courts have sought to develop a set of coherent rules governing a magistrate’s consideration of warrant applications and the showings that are necessary to support a finding of probable cause. Gates, 462 U.S. at 275, 103 S.Ct. at 2352 (Brennan dissenting). In my view this goal is well served by renewed adherence to the two-pronged Aguilar-Spinelli test.

This test requires the police, when relying upon hearsay information provided by an informant, to establish two elements before obtaining a search warrant. First, the police must establish some basis to reasonably believe crime evidence will be found at the locale to be searched. Second, the police must provide facts which establish either the veracity of their informant or alternatively the reliability of the informant’s report. Aguilar, 378 U.S. at 114, 84 S.Ct. at 1514, Spinelli, 393 U.S. at 413, 89 S.Ct. 587. Each element must be established; they are independent and separate requirements. If one is not established, probable cause would not exist on the basis of information received from an informant. Very strong evidence relative to one test does not overcome the deficiencies involved in the other test.

It is important to realize, however, that the two prongs of AguilarSpinelli need only be met when the police are relying upon evidence obtained through an informant. Therefore, when they rely upon facts which are directly discovered through investigation, the police need not present further information which establishes credibility or veracity. In these situations, the police need only establish the first prong of Aguilar-Spinelli which requires that they present facts which support the reasonable conclusion that incriminating evidence will be found in the place to be searched. Holley, The Decline of the Right to Privacy and Security; Gates and the States - The First Three Years, (1988) 21 Creighton L. Rev. 21

When the police rely upon hearsay information however, they must also satisfy the second prong oí Aguilar-Spinelli. This requirement is necessitated by the recognition that hearsay information obtained from an informant is often times untrustworthy. See State v. Gommenginger [242 Mont. 265,] (1990), 47 St.Rep. 681, 790 P.2d 455 citing Fletcher v. United States (D.C. Cir. 1946), 158 F.2d 321. In order to ensure that search warrants are not obtained through reliance upon false information or unfounded rumors, the Aguilar-Spinelli rule requires the police to establish the credibility of their informant or the veracity of his information. Spinelli, 393 U.S. at 416, 89 S.Ct. at 589.

This requirement serves a second purpose when applied to anonymous tips. By definition nothing is known about an anonymous informant’s identity, honesty or reliability. The courts should not, therefore, blindly accept conclusory allegations from such sources or attach any presumption to their information. Gates, 462 U.S. at 284, 103 S.Ct. at 2356 (Brennan dissenting). Such allegations, submitted by police officers, who are considered presumptively rehable, cannot form the basis for probable cause. Therefore, the courts should not accept the same type of conclusion from anonymous informants when nothing is known concerning their reliability.

The first prong of the test, can often be satisfied if the informant’s tip contains sufficient detail describing the accused’s criminal activity. Such detail might assure the magistrate that he is relying “on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Spinelli, 393 U.S. at 416, 89 S.Ct. at 589. See also Draper v. United States (1959), 358 U.S. 307, 79 S.Ct. 329, 31 L.Ed.2d 327. Of course, this portion of the test can also be satisfied through a clear explanation of how the informant came across his knowledge concerning the alleged criminal behavior. Stanley v. State (1974), 19 Md.App. 507, 313 A.2d 847, 861.

The second prong of the Aguilar-Spinelli rule can be satisfied through statements by an officer informing the magistrate of the informant’s reliability. Often this is accomplished by showing that the information obtained from the informant was against his penal interests or that the informant has been proven reliable in the past. LaFaue, Search and Seizure (1978) Volume 1 § 3.3(c). The second prong can also be met by establishing the veracity of the informant’s allegations. This can be accomplished through corroboration of details of the tip by further investigation. See Gates, 462 U.S. at 283, 103 S.Ct. at 2356 (Brennan dissenting). Such corroboration can help establish the reliability of the source. If law enforcement can establish that an informant is right about some things, it is generally safe to conclude that “he is right about other facts, usually critical, ■unverified facts.” See Spinelli, 393 U.S. at 427, 89 S.Ct. at 594. (White concurring).

Through application of this test to the case now before us, it is apparent that sufficient probable cause does not exist and the search of the Deskins’ home was unreasonable. The investigating officer in this case had three basic facts which were incorporated in his affidavit for a search warrant. According to the majority opinion, the officer received an anonymous tip from an informant who stated he had seen a marijuana growing operation in the basement of a house located at 600 or 602 South Avenue East. The informant further stated that the house was owned by John and Nancy Deskins. The police officer verified the fact that the house was owned by the Deskins. The officer also, through a review of electrical records, concluded that the Deskins were engaged in a marijuana growing operation. This conclusion was based upon the fact that the Deskins’ use of electricity fluctuated.

To begin the analysis we must address the first prong of the test, which requires an inquiry into the facts and circumstances that combine to form a basis for the anonymous informant’s belief that the Deskins’ basement contained a marijuana growing operation. In making this inquiry, we must restrict our analysis to the four corners of the search warrant. State v. Hembd (1989), 235 Mont. 361, 767 P.2d 864.

According to the search warrant affidavit, the anonymous tipster told officials of the Missoula police department that he personally viewed a marijuana growing operation in the Deskins’ home. According to the tip, the operation was located in the basement which was equipped with fluorescent lights. The plants were grown on a two and one-half month cycle.

The first prong of the Aguilar-Spinetti test can be satisfied by a statement from the informant that he personally observed the criminal activity. See Spinelli, 393 U.S. at 416, 89 S.Ct. 589. Such personal observation occurred in this case and therefore the first prong of the test is satisfied.

The information contained in the affidavit fails to meet the requirements of the second prong, however. This portion of the test requires that the police show either that the informant is credible or that his information is reliable. This case involves an anonymous tip. Therefore, the police obviously cannot establish the informant’s credibility. Instead they must establish the veracity of his information.

The Missoula police officers sought to accomplish this task by verifying that the Deskins lived where the informant said they did and by obtaining electrical records. The fact that the Deskins lived at 600 South Avenue East is an innocent fact. It does nothing to establish any allegation regarding illegal activity. Moreover, the electrical records in and of themselves do not establish the probability that the Deskins illegally grew marijuana.

Supported by further evidence, electric records are invaluable in detecting illegal activity. However, by themselves they do not provide adequate information to establish probable cause. See e.g. State v. Huft (1986), 106 Wash.2d 206, 720 P.2d 838, State v. Mason (App.1986), 111 Idaho 916, 728 P.2d 1325. This fact is especially evident in the case now before us. The informant told Missoula police officers that the Deskins had been growing marijuana for five years. Despite this allegation the police officers only included power records for the period between September of 1988 until May of 1989 in their application for a warrant. During this nine month period, records indicate that in the residential portion of their home; the Deskins’ power usage approximated 378 KWH during the months of late September through late November of 1988. Their usage rose to 538 KWH during the time period between November 22 through December 21, 1988. During the months of late December through late March, the power records reveal that the Deskins’usage ranged from a low of 421 KWH, to a high of 525 KWH. This use rose dramatically between April 20, 1989 and May 22,1989, to a rate of 1567 KWH.

Examination of records from the day care portion of the Deskins’ property revealed similar information. During the fall months, the Deskins utilized an average of876 KWH of electricity per month. This power usage increased steadily throughout the winter months to a high of 1442 KWH during January and February of 1989. During the spring months, the electricity records reveal that the power usage once again approximated 900 KWH, which was close to that recorded during September and October of the previous year.

With the possible exception of the high rate recorded in April and May of 1989 for the residential portion of the property, these records are not indicative of any illegal activity. On the contrary, the records indicate a normal utilization of electrical power. For both the home and the day care center, the power usage increased throughout the fall and winter months and then began to decline during the spring.

The Missoula police stated in their affidavit that the high rate recorded in April and May indicated the beginning of a marijuana growth cycle. However, this high rate was recorded over only one month. According to the informant, the Deskins had grown marijuana for five years. This one month period does not establish any pattern which may have been revealed through a review of power records gathered from a longer period of time. Furthermore, it is highly doubtful that increased use of electricity during one month can form the basis to verify an anonymous tip such as received here.

The affidavit for the search warrant failed to establish probable cause, as determined under the Aguilar-Spinelli test, because the police did not sufficiently verify the information obtained through the anonymous tip. Moreover, the results of this case illustrate the problems inherent in the totality of the circumstances test. Armed with only an anonymous tip and a high rate of electricity recorded over only a one month period, the police obtained a warrant and searched a citizen’s home. The authors of our state constitution sought to prevent such occurrences through inclusions in our state constitution granting Montana citizens a right to privacy and a right to be free from unreasonable searches and seizures.

Although we are constrained by the minimal protections afforded by the federal constitution, we may construe the rights enumerated in our state constitution as affording additional liberties to those granted by the United States Supreme Court. The State of Alaska rejected completely the totality of the circumstances test on the basis that its constitutional provisions granting a right against unreasonable searches and seizures and a right to privacy, mandated stronger protection. State v. Jones (Alaska 1985), 706 P.2d 317. The detailed reasoning set forth by the Alaska Supreme Court is compelling. I believe it should be adopted by this Court, given the fact that the Montana Constitution contains provisions similar to those of the Alaska Constitution.

The judgment should be vacated and the results of the search suppressed.

JUSTICES HUNT and SHEEHY concur in the foregoing dissent.