text:
    In the Matter of the ESTATE OF JOSEPH JEROME PHELAN, Deceased.
    No. 88-379.
    Submitted on Briefs Sept. 29, 1988.
    Decided Dec. 29, 1988.
    766 P.2d 876.
    Kevin T. Sweeney, Sweeney & Healow, Billings, for appellant.
    John B. Kuhr, Bosch, Kuhr, Dugdale, Warner, Martin & Kaze, Havre, for respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

The District Court of the Twelfth Judicial District, Chouteau County, discharged the Personal Representative of the Estate of Joseph Jerome Phelan from her duties after finding that she did everything required of her. The appellants, Eileen P. Brensdal, Carol P. Nelson, Evelyn Hottenstein, Ruth Cusak, Sylvia Luck, Danise Still, David McDonald, and Eugene A. Phelan, all devisees of Joseph Jerome Phelan, the deceased, appeal the District Court’s failure to order the personal representative to gather and to distribute certain family held certificates of deposit. We affirm the District Court.

The two issues raised on appeal are as follows:

1. Whether the Montana courts have jurisdiction to order a personal representative, who is a resident of the state of Washington and who was appointed by a Montana district court, to gather and to distribute a decedent’s personal property located in Washington;

2. Whether the District Court properly discharged the Personal Representative after finding that she did everything required of her.

Joseph Jerome Phelan, a resident of the state of Washington, died testate on May 14, 1986, in Seattle, Washington. Phelan’s will, prepared and executed in the state of Washington, was dated July 26, 1984. At the time of his death, Phelan owned real property in Montana and personal property located both in the state of Washington and the state of Montana. Joyce Griswold, the Personal Representative named in Phelan’s will, offered his will for probate in the District Court of the Twelfth Judicial District, Chouteau County. The Clerk of the District Court informally admitted the will to probate on June 9, 1986 and appointed Joyce Griswold as the Personal Representative.

Phelan’s assets which the Personal Representative offered for probate included an undivided one-third interest in 200 acres of land located in Chouteau County, including Phelan’s corresponding mineral interest; $750 payable to the estate by the Joseph Jerome Phelan Trust; capital credits in Hill County Electric Cooperative and Harvest States Cooperatives totaling $420.10; monies advanced to the estate by the Joseph Jerome Phelan Trust to pay specific charitable devises and administrative costs and expenses; and personal property specifically described and devised in the will totaling $865. The majority of Phelan’s assets were transferred to the Joseph Jerome Phelan Trust dated April 4, 1984. The trust and trust assets are not involved in this appeal.

Prior to his death, Phelan had opened a checking account in the state of Washington and listed two of his sisters, Joyce Griswold and Ursula King, as authorized signators on the account. Phelan had also purchased bank-issued certificates of deposit at a Washington bank on which Phelan, Griswold, and King were all listed as joint co-owners. These bank accounts, established by Phelan, totaled $34,926.62 at the time of his death. Following Phelan’s death, the banks recognized Griswold and King as the surviving joint tenants and therefore owners of the checking account and certificates of deposit. The Personal Representative did not consider or include the checking account or the certificates of deposit as probate assets in the Montana proceeding.

The Personal Representative petitioned the District Court for final discharge and closure of the probate case. The appellants, all devisees of Phelan’s estate, objected to this petition for final discharge, claiming that the Washington bank accounts had not been properly included in the probate estate. A hearing was held on May 2, 1988 on the Personal Representative’s Petition for Final Discharge and the objection made by the devisees to the granting of this petition. The District Court stated that it had no jurisdiction over the Washington bank accounts nor over the parties involved in the joint tenancy bank accounts and therefore granted the Personal Representative’s petition for final discharge and ordered this probate case closed.

The first issue raised on appeal is whether the Montana courts have jurisdiction to order a personal representative, who is a resident of the state of Washington and who was appointed by a Montana district court, to gather and to distribute a decedent’s personal property located in Washington.

No controversy exists as to Phelan’s domicile. Phelan’s will was prepared and executed in the state of Washington and he was a Washington resident at the time of his death. While Phelan owned an undivided one-third interest in 200 acres of land, including the mineral interest, in Chouteau County, Montana, the majority of Phelan’s personal property was located in the state of Washington. The Personal Representative brought the original probate proceeding to the District Court of the Twelfth Judicial District, Chouteau County, Montana.

The majority of Phelan’s personal property was specifically devised by Phelan’s will. The record reveals that no dispute exists as to the distribution of the specific devises. The record also reveals that the Personal Representative gave notice to the creditors in Montana, conducted an inventory and appraisal, and paid the appropriate federal and Montana state inheritance taxes. The dispute in this case lies in the two bank accounts Phelan had established in Washington in which he named two of his sisters as joint owners.

The laws of the state of Washington, Phelan’s domicile, clearly apply to Phelan’s personal assets. In re Smith’s Estate (1953), 126 Mont. 558, 563-64, 255 P.2d 687, 690-91. Included among these assets are the Washington bank accounts. The record indicates that the Washington bank accounts may be testamentary in light of the Washington law. The record also indicates that no probate proceedings were initiated in Washington or elsewhere to settle this question. We hold that this Court has no jurisdiction over the Washington bank accounts. We therefore affirm the District Court on this issue.

The second issue raised on appeal is whether the District Court properly discharged the Personal Representative after finding that she did everything required of her. In light of the discussion above, we hold that the District Court did not err in finding that the Personal Representative did everything required of her and therefore did not err in granting the petition to discharge the Personal Representative and to close the estate.

Affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE WEBER

license: Public Domain

text:
    JAY LEE GATES, and Mark J. Andrus, Petitioners, v. MISSOULA COUNTY COMMISSIONERS, Daniel Magone, Sheriff, Dr. Long, Chief of Medical Services, Respondents.
    No. 88-401.
    Submitted on Briefs Dec. 2, 1988.
    Decided Dec. 29, 1988.
    766 P.2d 884.
    Jay Lee Gates, Deer Lodge, pro se. Mark J. Andrus, Missoula, pro se.
    Mike Greely, Atty. Gen., Helena, Robert L. Deschamps, III, Co. Atty., Michael W. Sehestedt, Deputy, Missoula, for respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Jay Lee Gates and Mark Andrus petition this Court for relief under the habeas corpus and declaratory judgment statutes. They allege a violation of their constitutional rights due to several conditions of confinement at the Missoula County Jail. Petitioners also allege a tort cause of action against Missoula County officials for the violation of their constitutional rights. We dismiss the petitioners’ claim for relief.

The issues involved in this matter are:

1. Is habeas corpus an appropriate remedy?

2. Does this Court have jurisdiction to consider Petitioners’ request for relief as a declaratory judgment or a tort cause of action?

Both petitioners were incarcerated in the Missoula County Jail in Missoula, Montana, at the filing of this petition. Since that date, Mr. Gates has been transferred to Montana State Prison in Deer Lodge and Mr. Andrus’ six month term in the Missoula County Jail beginning in April of 1988 has presumably been served. During the periods of their incarceration in Missoula, the petitioners contend that they were denied adequate food, shelter, clothing, medical care, exercise, individual security, and a law library, all of which violated their constitutional rights under the 8th Amendment’s protection against cruel and unusual punishment, the similar prohibition in Article II, Section 22 of the Montana Constitution, and also the 14th Amendment of the U.S. Constitution.

I

Is habeas corpus an appropriate remedy?

The habeas corpus statute § 46-22-101(1), MCA, provides that:

“. . . every person imprisoned or otherwise restrained of his liberty within this state may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment and restraint and, if illegal, to be delivered therefrom. (Emphasis added.)”

This statute allows a prisoner to challenge the legal sufficiency of the cause for incarceration. The petitioners do not allege that the cause of their incarceration in unlawful. We conclude that habeas corpus is not an appropriate remedy.

II

Does this Court have jurisdiction to consider Petitioner’s request for relief as a declaratory judgment or a tort cause of action?

Petitioners seek declaratory and injunctive relief against Missoula County officials whom they contend have control over the care and condition of the facility in question. The Montana Supreme Court’s power to hear any matter by exercising original jurisdiction is subject to Rule 17(a), M.R.App.P.:

“The supreme court is an appellate court but it is empowered by the constitution of Montana to hear and determine such original and remedial writs as may be necessary or proper to the complete exercise of its jurisdiction. The institution of such original proceedings in the supreme court is sometimes justified by circumstances of an emergency nature, as when a cause of action or a right has arisen under conditions making due consideration in the trial courts and due appeal to this court an inadequate remedy, or when supervision of a trial court other than by appeal is deemed necessary or proper.” In determining whether to assume original jurisdiction in light of that rule, this Court has considered several factors as set forth in State ex rel Thompson v. School District (1970), 156 Mont. 79, 80, 474 P.2d 700, 701:

“. . . various fact questions appear . . . original jurisdiction by this Court will not achieve a thorough examination into the multiple problems presented, and, further, a class action could be instituted in any appropriate district court wherein exists facilities for taking testimony and making findings of fact and conclusions of law which would be determinative of the fact questions now existing . . .”

Mr. Gates and Mr. Andrus present a number of factual questions which they ask this Court to resolve. Those disputed factual issues should be directed to an appropriate district court, since it is not the role of this Court to function as primary fact-finder. The petitioners have not demonstrated any emergency which would justify a departure from the usual proceedings in district court to decide the merits of the issues raised. Furthermore, the County points out that at the time this petition was filed, there was a class action pending in which the petitioners were involved, counsel was appointed, and the same issues were raised in that suit as appear in this matter.

We conclude that there is no basis upon which this Court should accept jurisdiction. Petitioners’ request for relief is denied and dismissed, without prejudice.

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


author: MR. JUSTICE McDONOUGH

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. J.C.E., Defendant and Respondent.
    No. 87-535.
    Submitted Nov. 3, 1988.
    Decided Dec. 30, 1988.
    Rehearing Denied Feb. 7, 1989.
    767 P.2d 309.

      Mike Greely, Atty. Gen., Dorothy McCarter argued, Asst. Atty. Gen., Mike McGrath, County Atty., Carolyn A. Clemens argued, Deputy County Atty., Helena, for plaintiff and appellant.
    Gregory Jackson argued, Helena, for defendant and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal involves the admissibility of hearsay testimony regarding statements made by a child who allegedly is the victim of incest. In order to protect the child, and because the case is still in its preliminary stages, the individuals involved will be referred to by their initials. The State of Montana brings an interlocutory appeal from the order of the District Court of the First Judicial District, Lewis and Clark County, excluding testimony by a social worker and a counselor concerning S, the four-year-old daughter of the defendant. We affirm, and remand for further action.

The State frames a single issue on appeal: Did the District Court err in refusing to allow into evidence out-of-court statements made by the victim to her counselor, Margaret Stuart, and to social worker Rita Pickering?

The facts of this case are highly contested. Because the case has not reached the trial stage, the record does not yet allow for clear distinctions between allegations by the respective parties and provable fact. However, a chronology of relevant events is as follows.

S lives in Helena with her mother. The mother and J.C.E. are divorced, and custody of S has been disputed. In March of 1987, S was in Butte visiting J.C.E. She developed “spots,” which promoted J.C.E. to take her to a doctor. She was diagnosed as having chicken pox and impetigo, and put on medication. The doctor described the location of the impetigo as the “right groin.”

On March 30, 1987, approximately ten days after S saw the doctor in Butte, she returned to Helena. Her mother took her to see her local physician, Dr. R.E. Kechely. At Dr. Kechely’s office, S removed her panties so the doctor could examine the impetigo. S’s mother noticed what appeared to be blood in the panties, and told Dr. Kechely this when he entered the examination room. He indicated initially that some of S’s chicken pox may have become irritated and therefore bloody. He then performed his examination.

Dr. Kechely’s record of S’s visit contains the following notation:

“Examination showing a diffuse perineal [groin area] redness, and irritation almost to an abrasion point hymenal opening appearing intact. In discussing this with [S] she related a history of ‘Daddy puts his fingers in me.’ ”

After the examination, Dr. Kechely reported S’s case to the Lewis and Clark County Human Services authorities and referred her to a gynecologist. A gynecological examination was performed later that day.

The next day, March 31, Rita Pickering of the Department of Family Services conducted a videotaped interview with S. During the interview, Pickering asked S whether J.C.E. had touched her genitals. Pickering obtained some responses from S indicating that J.C.E. had indeed touched her, and some responses denying any touching. In April of 1987, S began a series of counseling sessions with counselor Margaret Stuart.

On May 6, 1987, J.C.E. was charged by information with felony sexual assault. The information was amended two months later to charge J.C.E. with incest as defined at § 45-5-507, MCA. On October 28, 1987, a hearing was held to videotape S’s testimony for trial and to determine if she was competent to testify at trial. After the State finished its examination of S, counsel for J.C.E. moved to have S’s testimony stricken on the ground that she was not competent to testify. The court agreed and granted the motion. The competency ruling has not been appealed.

The State’s list of proposed witnesses included Dr. Kechely, Rita Pickering and Margaret Stuart, all of whom would testify regarding S’s out-of-court statements about the alleged incest. Counsel for J.C.E. moved in limine to have the testimony of these witnesses excluded as inadmissible hearsay under Rule 802, M.R.Evid. The court denied the motion as to Kechely, but granted it as to Pickering and Stuart. The State appeals from that ruling.

The issue presented here goes to a very important and troubling consideration in the trial of alleged perpetrators of incest or other sexual abuse. The nature of these offenses poses evidentiary problems. Often, the only witnesses are the perpetrator and the victim. The victim of incest or abuse is often very young. The inability of a very young child to recall or relate information about the alleged offense accurately and consistently can result, as it has here, in the child being deemed incompetent as a witness.

If the child is found incompetent to testify, out-of-court statements made to relatives, medical personnel or social services personnel may become an important source of probative evidence. However, this is hearsay; the child cannot be cross-examined as to the truth of the statements. The absence of opportunity for cross-examination also raises possible problems regarding the Sixth Amendment to the United States Constitution and Sec. 24, Art. II of the Montana Constitution. The defendant loses the opportunity to confront a witness against him. The exceptions to the general rule against hearsay testimony have been developed as “substitutes” for the safeguards provided by cross-examination.

Traditional hearsay exceptions do not always fit well in cases where the hearsay declarant is a child victim of incest or abuse. Valuable evidence may be excluded by hearsay structures designed to protect against problems that may not exist with a child declarant. At the same time, the emotionally charged atmosphere of the case and the fact that the alleged perpetrator may be a parent might color the child’s statements and the witnesses’ perception of them. See, e.g., Comment, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases (1983), 83 Colum. L. Rev. 1745.

These factors have led us to analyze this case with special care. Rita Pickering and Margaret Stuart were told and shown things by S that could be claimed to be probative as to J.C.E.’s guilt or innocence. However, given J.C.E.’s inability to cross-examine S in court, the profliered testimony must be examined closely for the reliability that would make it admissible hearsay.

The State argued to the District Court that several hearsay exceptions applied to the testimony of Pickering and Stuart, and renews those arguments on appeal. The State asserts that the testimony of both witnesses is admissible under the so-called “residual” hearsay exceptions found in Rules 803(24) and 804(b)(5), M.R.Eyid. In the case of Ms. Stuart, the State further argues for application of the exceptions found in Rule 702, M.R.Evid. (expert testimony), and Rule 803(4), M.R.Evid. (statements made for purposes of medical diagnosis and treatment).

I. Expert Testimony

Rule 702

Expert testimony involves a witness rendering an opinion using their superior knowledge of a subject not commonly understood by lay persons. The hearsay exception for expert testimony is found in Rule 702, M.R.Evid., and reads as follows:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”

Whether a witness is qualified as an expert is largely within the discretion of the trial judge, who has wide latitude in determining the admissibility of proffered expert testimony. State v. Eiler (Mont. 1988), [234 Mont. 38,] 762 P.2d 210, 218-19, 45 St.Rep. 1710, 1721.

According to the State’s offer of proof to the District Court, Stuart would testify on four main points: (1) S has told her that incidents similar to the one alleged happen frequently with her father; (2) S can differentiate truth from fiction and has a good grasp of reality; (3) S shows no confusion about who assaulted her and (4) Stuart believes that S is telling a reliable, credible story. The State cited State v. Geyman (Mont. 1986), [224 Mont. 194,] 729 P.2d 475, 43 St.Rep. 2125, to support its position. The District Court was correct in excluding this proffered expert testimony for two reasons.

First, the Geyman case dealt with the testimony of a clinical psychologist in a sexual assault case where the alleged victim had testified. This Court held such expert testimony admissible to assist the jury in assessing the credibility of the child’s testimony. The District Court found Geyman inapplicable because S was not going to testify, and her credibility as a witness therefore would not be an issue.

This Court has previously held that as a general rule, testimony by an expert evaluating the credibility of a witness is inadmissible. State v. Brodniak (Mont. 1986), [221 Mont. 212,] 718 P.2d 322, 43 St.Rep. 755. In Geyman, we adopted an exception to that rule for cases where the witness is a child victim of sexual assault. Geyman, 729 P.2d at 579; see, State v. French (Mont. 1988), [233 Mont. 364,] 760 P.2d 86, 45 St.Rep. 1557. The State’s offer of proof indicated that Stuart would testify as to the credibility of S’s statements. This would be improper under the general rule, and the exception established in Geyman does not apply because S will not testify.

Second, the State’s offer of proof indicates that Stuart would identify the defendant as the perpetrator of the incest. Rule 702, M.R.Evid., states, “If . . . specialized knowledge will assist the trier of fact to understand the evidence . . .” While Rule 704, M.R.Evid., allows an expert witness to render an opinion on the ultimate issue in a case, that opinion is for the assistance of the jury. Only the jury can actually decide ultimate issues such as whether a crime was committed or the identity of the perpetrator. This question was squarely addressed in the context of child sexual assault by the Nevada Supreme Court in Townsend v. State (Nev. 1987), 734 P.2d 705, 708:

“Here the expert not only opined that the child had been sexually assaulted, but proceeded to identify Townsend as the perpetrator. This was improper testimony as it transcended the test of jury enlightenment and entered the realm of fact-finding that was well within the capacity of a lay jury.”

The identity of the alleged perpetrator in this case is not a question requiring an expert opinion. Whether S was the victim of incest is a question that might be clarified by an expert opinion on her physical and mental state. However, whether the evidence adduced by the State establishes J.C.E. as the perpetrator requires only the common logic that is indeed well within the capacity of a lay jury.

Despite assertions made in the defendant’s brief to this Court, it does not appear that the District Court excluded Stuart’s testimony because she is not qualified as an expert. The testimony was excluded because it was offered on the irrelevant question of S’s credibility. With sufficient foundation, Stuart could give opinion testimony consistent with her expertise as a counselor, as long as the requirements of Rule 702 were satisfied.

II. Medical Diagnosis or Treatment

Rule 803(4)

The State has sought to bring Stuart’s testimony within the “medical treatment” exception under a two-part test found in State v. Robinson (1987), 153 Ariz. 191, 735 P.2d 801, 809: (1) whether the declarant’s motive was consistent with seeking medical treatment and (2) whether it was reasonable for the physician to rely on the information in diagnosis and treatment. The Arizona Supreme Court held in Robinson that a licensed psychologist treating a child for psychological problems relating from sexual abuse was treating the child for “medical” purposes and admitted the psychologist’s testimony under this exception.

The medical diagnosis and treatment exception is relatively new to Montana law. So far, its scope has not been expanded beyond testimony by medical doctors. See, e.g., Garza v. Peppard (Mont. 1986), [222 Mont. 244,] 722 P.2d 610, 43 St.Rep. 1233. The psychologist in Robinson was licensed under Arizona law to “diagnose, treat and correct” human conditions. The Arizona court found this sufficiently similar to the work of a medical doctor to admit the psychologist’s testimony under the medical treatment exception. The District Court in this case held that because Stuart is not a licensed psychologist, she does not have the authority to make the same type of diagnosis.

We decline to extend the medical diagnosis and treatment exception beyond medical doctors in this case, and we affirm the District Court’s ruling on this issue. Stuart could — depending on the foundation laid, subject matter, and discretion of the court — be offered as an expert and render an opinion based on her expertise as a counselor. The State could also offer her testimony relating statements made by S if the court determines that such testimony would come within the Rule 804(b)(5) residual exception discussed below. The fact remains, however, that Stuart is not licensed to render medical diagnoses, and therefore cannot testify about such diagnoses under this exception. Furthermore, the rationale behind the medical treatment exception is less forceful where a young child is concerned. The child might not comprehend the necessity of telling a doctor the truth in order to aid diagnosis and treatment.

III. Residual Exception

Rule 804(b)(5)

The State’s argument to this Court asserts that the residual hearsay exceptions found at Rule 803(24) and Rule 804(b)(5), M.R.Evid. should apply to testimony by Pickering and Stuart. The two exceptions are framed by exactly the same language:

“Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having comparable circumstantial guarantees of trustworthiness.”

The hearsay exception previously discussed are based in large part upon the status of the witness as an expert or a doctor. The status and function of these individuals lends trustworthiness to their testimony as to hearsay statements that cannot be cross-examined. The hearsay exceptions in Rules 803 and 804, including the residual exceptions, look to the circumstances surrounding a hearsay statement when it is made — the “circumstantial guarantees of trustworthiness” that lend reliability to the hearsay statement in lieu of cross-examination.

For example, the “excited utterance” exception found at Rule 803(2), M.R.Evid. requires that the statement be made “under the stress of excitement” caused by an event or condition. The rationale for this exception relies on

“the special reliability which is regarded as furnished by the excitement suspending the declarant’s powers of reflection and fabrication.”

McCormick on Evidence,. § 297 at 855 (E. Cleary 3d ed. 1984). The problem noted at the outset of this opinion, however, is that traditional hearsay exceptions do not always serve their purpose when children are involved. Courts in some states have attempted to apply the excited utterance exception to cases of child sex abuse. See, e.g., Smith v. State (1969), 6 Md.App. 581, 252 A.2d 277. A problem encountered with this exception is that fear, loyalty or lack of comprehension might cause a child to delay for weeks before reporting sexual abuse perpetrated by a parent or other close relative.

The residual exception argued by the State in this case has been relied upon by states such as South Dakota and Wisconsin for dealing with child hearsay. See, Bertrang v. State (1971), 50 Wis.2d 702, 184 N.W.2d 867; State v. McCafferty, (S.D. 1984), 356 N.W.2d 159. The residual exception by its own terms is designed for use where established exceptions do not apply, which would seem to make it suited to child hearsay.

The residual exception also presents a problem, however, due to the lack of guidelines for a court to use in considering what constitutes a circumstantial guarantee of trustworthiness in an incest or sexual abuse case. See, Note, State v. McCafferty: The Conflict Between a Defendant’s Right to Confrontation and the Need for Children’s Hearsay Statements in Sexual Abuse Cases (1985), 30 S.D.L. Rev. 663.

An attempt to avoid the pitfalls of applying existing hearsay exceptions to children has been made in the State of Washington. In 1982, the Washington legislature enacted RCW 9A.44.120, which specifically declares child hearsay statements concerning sexual contact admissible as evidence in a criminal proceeding. However, the statute appears to have done little to alleviate the lack of guidelines encountered with the residual exception. In the first case where it interpreted the statute, the Washington Supreme Court felt compelled to give nine guidelines for its application. State v. Ryan (1984), 103 Wash.2d 165, 691 P.2d 197.

Our review of cases from other jurisdictions indicates that special consideration must be given to proffered hearsay testimony when the child declarant is unavailable as a witness. Of the various approaches, the residual exception presents the fewest problems in its application to child hearsay. Nonetheless, it requires a set of guidelines for use in cases of this kind.

The State argues for application of the residual exception from either Rule 803 or Rule 804. However, Rule 803 deals with hearsay where the availability of the declarant is immaterial. The fact that S is unavailable as a witness is the very reason why hearsay testimony has become important to this case. Therefore, we hold that Rule 804(b)(5), M.R.Evid., shall henceforth be the rule under which proffered hearsay, other than expert testimony, is considered for admissibility in cases of incest or other sexual abuse of children when the alleged victim is unavailable as a witness.

Many of the guidelines set forth below for application of Rule 804(b)(5) have been implemented in other jurisdictions. They are not mandatory, and are presented only as considerations for a trial judge to bear in mind when deciding the admissibility of proffered hearsay testimony. Some may not apply to a given case.

IV. Child Hearsay Guidelines

Because the issue being addressed here arises only when a child hearsay declarant is unavailable as a witness, preliminary findings concerning the child’s availability must be made by the District Court before hearsay testimony can be considered under Rule 804(b)(5):

“1. The victim must be unavailable as a witness, whether through incompetency, illness, or some other like reason (e.g., trauma induced by the courtroom setting).”

“2. The proffered hearsay must be evidence of a material fact, and must be more probative than any other evidence available through reasonable means.”

“3. The party intending to offer the hearsay testimony must give advance notice of that intention.”

Once the court has found these conditions to be present, Rule 804(b)(5) can be applied to any proffered hearsay testimony. The guidelines that follow are presented in groups corresponding to the main components of such testimony:

“1. The Attributes of the Child Hearsay Declarant

“a. The child’s age.

“b. The child’s ability to communicate verbally.

“c. The child’s ability to comprehend the statements or questions of others.

“d. The child’s ability to tell the difference between truth and falsehood.

“e. The child’s motivation to tell the truth (i.e., whether the child understands the general obligation to speak truthfully and not fabricate stories).

“f. Whether the child possessed sufficient mental capacity at the time of the alleged incident to receive an accurate impression of it.

“g. Whether the child possesses sufficient memory to retain an independent recollection of the events at issue.

“2. The Witness Relating the Hearsay Statement.

“a. The witness’s relationship to the child.

“b. Whether the relationship between the witness and the child might have an impact on the trustworthiness of the hearsay statement.

“c. Whether the witness might have a motive to fabricate or distort the child’s statement.

“d. The circumstances under which the witness heard the child’s statement, including the timing of the statement in relation to the incident at issue and the availability of another person in whom the child could confide.

“3. The Statement Itself.

“a. Whether it contains knowledge not normally attributed to a child of the declarant’s age.

“b. Whether it was volunteered spontaneously.

“c. The suggestiveness of prior statements by the witness relating the statement or third parties present when the statement was made.

“d. If statements were made by the child to more than one person, whether those statements were consistent.

“e. Its nearness in time to the incident at issue.

“4. The Availability of Corroborative Evidence.

“a. Whether the act alleged can be corroborated.

“b. If the child’s statement identifies a perpetrator, whether that identity can be corroborated.

“c. Such corroboration can come from direct, physical evidence, or more circumstantial evidence or motive or opportunity.

“5. Other Considerations.

“The particular facts of a case may present the court with considerations other than those outlined above that in the court’s judgment will bear on the admissibility of the proffered testimony.”

We must emphasize that in utilizing these guidelines, the admissibility of evidence remains in the discretion of the trial judge. Where a court is determining circumstantial guarantees of trustworthiness, we will defer to the court’s decision unless an abuse of discretion is clearly shown. State v. LaPier (1984), 208 Mont. 106, 676 P.2d 210. In order for this Court to conduct proper review of decisions under Rule 804(b)(5), a trial judge’s determination utilizing these considerations must be reduced to writing. Therefore, a District Court ruling on the admissibility of child hearsay under Rule 804(b)(5), M.R.Evid., shall issue findings of fact and conclusions of law setting forth its decision.

We affirm the District Court’s decision as to the admissibility of the State’s proffered testimony under the exceptions for expert testimony and medical treatment. We remand the case to the District Court for entry of findings of fact and conclusions of law as to the applicability of Rule 804(b)(5), M.R.Evid., to testimony by Pickering or Stuart relating statements made by S, and for further proceedings.

Affirmed and remanded.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER, GULBRANDSON and HUNT, and HON. DALE COX, District Judge, sitting for MR. JUSTICE SHEEHY.


author: MR. JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. KELLY SALOIS, Defendant and Appellant.
    No. 88-62.
    Submitted on Briefs Dec. 2, 1988.
    Decided Dec. 30, 1988.
    766 P.2d 1306.

      Benjamin R. Anciaux, Poison, for defendant and appellant.
    Mike Greely, Atty. Gen., Dorothy McCarter, Asst. Atty. Gen., Helena, Larry J. Nistler, County Atty., Mark Stermitz, Deputy County Atty., Poison, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Defendant Kelly Salois appeals from a jury verdict in the Twentieth Judicial District, Lake County, Montana. Salois was convicted of criminal possession of dangerous drugs and criminal possession of drug paraphernalia, both misdemeanors. We affirm.

In June, 1987, Lake County Sheriffs’ officers made a lawful search of the residence of Phillip Shourds. When the officers entered Shourds’ house, they detected the strong aroma of marijuana smoke. Salois was present in the house, along with seven or eight other people. The officers allowed five of these people to leave, including Salois. The officers then proceeded to search the house.

The officers discovered marijuana or drug paraphernalia in nearly every room of Shourds’ house. In the master bedroom, 71 bags of marijuana, totaling nearly 275 grams, were found on the floor between the bed and wall. In the master bedroom closet, officers found a 423 gram “block” of marijuana. In the living room, officers found marijuana, stems, seeds, cigarette butts (roaches), and rolling papers. In the kitchen, officers found rolling papers, “roach clips,” and marijuana literature.

Of importance to this appeal are the items discovered in the house which connected Salois to the contraband. In a rear bedroom of the house, officers found small amounts of marijuana on the top of a highboy and more marijuana on the floor in a plastic bag. Also in that bedroom, officers found on the window sill a plastic bag containing rolling papers, a used “pot” pipe, and a check stub bearing Salois’ name. Additionally, officers found in this bedroom seven documents, (e.g., envelopes, identification card, check voucher, etc.) with Salois’ name on them. Officers found four such documents with Salois’ name on them in the kitchen, and six more in the livingroom. Finally, another “pot” pipe was found inside Salois’ car which was parked in front of Shourds’ house.

Salois was arrested June 12, 1987, and charged with criminal possession of dangerous drugs, a felony, and criminal possession of drug paraphernalia, a misdemeanor. Salois pleaded not guilty and trial was held on November 16 and 17, 1987. The jury convicted Salois of misdemeanor possession of marijuana, not the felony charge sought by the State, and misdemeanor possession of drug paraphernalia.

Salois raises three issues for review:

1. Was it error for the District Court to deny Salois’ motion for directed verdict or dismissal of the felony possession of dangerous drugs charge?

2. Was there insufficient evidence to support the convictions since the State failed to scientifically test the contraband in the rear bedroom?

3. Was there jury misconduct which required the District Court to declare a mistrial?

Issue No. 1.

Was the failure of the District Court to either grant a directed verdict or dismiss the felony charge reversible error because it “effected [sic] the jury’s deliberations and perceptions of the case against Salois?”

It is undisputed that the decision whether to grant a motion to dismiss or for a directed verdict lies within the sound discretion of the district judge. That decision will not be disturbed on appeal unless an abuse of discretion is shown. Furthermore, we have stated that a directed verdict should only be granted where there is no evidence upon which a jury could base a verdict. State v. Matson (Mont. 1987), [227 Mont. 36,] 736 P.2d 971, 44 St.Rep. 874; State v. White Water (Mont. 1981), [_ Mont. _,] 634 P.2d 636, 38 St.Rep. 1664.

We conclude the District Judge did not abuse his discretion. A genuine factual issue existed whether Salois possessed a felony amount of marijuana. His personal belongings were found in most parts of the house, which could lead one to reasonably believe Salois had constructive possession of the marijuana in the master bedroom and was guilty of felony drug possession. Merely because the jury concluded Salois did not possess a felony amount of marijuana does not mean no evidence existed upon which a felony conviction could be based. In any case, the argument is without merit. Salois was found not guilty of the felony charge. His allegations of some residual prejudicial effect, while novel, are purely conclusory and without basis in fact or law.

Issue No. 2.

Was there insufficient evidence to support the convictions because the state failed to scientifically test all of the evidence?

The Lake County Sheriff’s office sent to the State Crime Laboratory, for chemical analysis, some of the evidence seized in the search. Tested were the large block found in the closet, the 71 bags containing a leafy substance found between the bed and the wall in the master bedroom (which also included the leafy substance found in the living room) and the substance which was seized from a van parked in front of the house at the time of the search.

The sheriff’s department did not send the evidence found in the rear bedroom to the crime lab for scientific analysis. Because of this, Salois argues the evidence was insufficient to support the conviction. We disagree. Although we have previously stated that it is preferable to have suspected drug substance tested by the state crime lab, failure to do so does not always render the evidence insufficient to convict a defendant beyond a reasonable doubt. State v. Ostwald (1979), 180 Mont. 530, 591 P.2d 646; State v. Paulson (1975), 167 Mont. 310, 538 P.2d 339.

Detective Bruce Phillips, who executed the search, testified that he was a sergeant in the detective division and worked all undercover drug operations in Lake County. Phillips originally received his law enforcement training in 1969, and has been continually employed as a law enforcement officer in Lake County since 1980. Phillips testified that he was trained and experienced in drug investigations and drug identification. Based on this knowledge and experience, it was his opinion the evidence found in the plastic bag on the window sill of the rear bedroom was marijuana and that the pipe had been used to smoke marijuana. Under examination at trial, Phillips explained what led him to believe the substance in the rear bedroom was marijuana.

Direct examination by County Attorney Mr. Stermitz:

“Q. Detective Phillips, I’m handing you what has been previously marked State’s Exhibit 7. What does that items [sic] appear to you to be?

“A. It’s a plastic baggy containing what appears to be marijuana stems, seed, and a small amount of marijuana leaf.

“Q. Do you know where that item came from?

“A. Yes.

“Q. Where?

“A. It was some of the residue and so forth that I collected out of the bedroom in the northwest corner of the Shourds’ residence.

“Q. Why did you seize that particular item?

“A. It was apparent to me that it was contraband and to show that there was [sic] drugs also in that bedroom.

“Q. Did you notice anything about it that led you to believe that was contraband?

“A. The structure and color of the seeds, the type of stem and so forth, the consistency and color of the leaves is [sic] all consistent with what I know to be marijuana.”

Alice Ammen, a forensic scientist with the Montana State Crime Laboratory also testified. Ammen stated that in the past she had tested marijuana about 2,000 times, and continued to analyze marijuana samples weekly at the crime lab. She also testified that the evidence sent to her by the Lake County Sheriff’s office had been tested positive for THC, the chemical substance found in marijuana. At trial she was asked by the county attorney to examine the evidence found in the rear bedroom.

Direct examination by Mr. Stermitz:

“Q. I realize you have not seen these items [State’s Exhibit 1, 7, and 21] before but I wonder from your experience at the Crime Lab and all the examinations you’ve performed, if you could describe for the jury what any of these items show to you.

“A. Well, in State’s Exhibit 21 it appears that there are some roaches, which are burnt butt ends of a hand-rolled cigarette. And there looks like marijuana seeds and a small amount of green, leafy material and stems, which I would strongly suspect to contain THC.

Cross-examination by defense counsel Mr. Anciaux:

“Q. So would you give us your opinion as to whether you think State’s Exhibit 7 is marijuana or not.

“A. I would say, yes, it probably is.

“Q. Can you tell us in your opinion if that [State’s Exhibit 8] is marijuana?

“A. I would give it a 99 percent chance of being marijuana.”

In reviewing a jury’s verdict in a criminal case where it is alleged the evidence is insufficient to support the verdict, our task is to determine if the verdict is supported by substantial evidence. A verdict based on substantial evidence will not be disturbed on appeal. State v. Price (Mont. 1988), [234 Mont. 144,] 762 P.2d 232, 234, 45 St.Rep. 1798, 1800; State v. Pepperling (1974), 166 Mont. 293, 300, 533 P.2d 283, 287; State v. Bouldin (1969), 153 Mont. 276, 284, 456 P.2d 830, 834-35.

We have previously examined this issue in Ostwald, supra, where we held there was sufficient credible evidence the suspected substance was marijuana.

“Defendant moved for a directed verdict of acquittal on that charge on the grounds that the ‘valtox kit’ test used to identify the suspected substance is not specific for marijuana and therefore not conclusive. He contends that because the substance was never sent to the crime lab for positive identification, the State has not met its burden of proving beyond a reasonable doubt that it was in fact marijuana. The State concedes that the ‘valtox kit’ test is not specific for marijuana but argues that when the test results are considered together with the testimony of the officer who performed the test, a prima facia showing was made that the substance was marijuana. The officer testified that his identification of the substance was based not only on the test results, but also on the characteristic odor of marijuana with which he was familiar from past experience in possession cases.

“[Njumerous cases hold that marijuana is not difficult to characterize without chemical analysis and that testimony of officers who have had experience searching for and identifying marijuana is sufficient. Cf. Cory v. State (1975), Okl.Cr., 543 P.2d 565; State v. Maupin (1975), 42 Ohio St.2d 473, 330 N.W.2d 708.”

Ostwald, 591 P.2d at 652.

We find the State has presented sufficient evidence from which the jury could find the substance found in the rear bedroom was marijuana. Not only did experts identify the substance as marijuana, but evidence of the contraband, and associated paraphernalia, was found in nearly every room in the house. Additionally, officers executing the search warrant testified that the house smelled of burning marijuana.

Issue No. 3

Was there jury misconduct which required the District Court to declare a mistrial?

Salois claims two jurors were overheard making statements before the case was submitted for the jury’s deliberations which expressed prejudice and require a mistrial:

“One Juror: I’m glad I’m not associated with those people, that I don’t have to associate with those people.

“Second Juror: Well, I guess we’re on the jury.”

We have held that the standard of review for overturning a district court’s ruling on a motion for mistrial requires clear and convincing evidence that the trial court’s ruling was error. State v. Hedrick (Mont. 1987), [229 Mont. 145,] 745 P.2d 355, 357, 44 St.Rep. 1849, 1851; State v. Murray (Mont. 1987), [228 Mont. 125,] 741 P.2d 759, 762, 44 St.Rep. 1394, 1397; State v. Counts (1984), 209 Mont. 242, 247-48, 679 P.2d 1245, 1248; Schmoyer v. Bourdeau (1966), 148 Mont. 340, 343, 420 P.2d 316, 317-18. Additionally, we held that if jury misconduct is shown tending to injure the defendant, prejudice will be rebuttably presumed:

“In this state, if jury misconduct is shown tending to injure the defendant, prejudice to defendant is presumed. However, the presumption is not absolute and may be rebutted by testimony of the juror showing facts which prove that prejudice or injury did not occur. (Emphasis added; citation omitted.)”

Murray, 741 P.2d at 762, citing Counts, 679 P.2d at 1248.

We conclude there was no initial showing of prejudice against Salois. The District Court had only the bare statement of Salois that these statements were made. No juror affidavits were presented to the court to support his claim. Yet even if the jurors had been overheard making these comments, it is not evident that the statements were directed at Salois or his witnesses. The statements, if made, were brief and do not support the claim that they injured the defense. The United States Supreme Court in Turner v. Louisiana (1965), 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424, recognized the distinction between a “brief encounter” and an “intimate association” as it pertains either to the relationship amongst jurors or between jurors and witnesses, and the extent to which prejudice to the defendant is shown. We accepted this reasoning in State v. Dickens (1982), 198 Mont. 482, 488, 647 P.2d 338, 341-42. The comments claimed to have been made here do not reflect on intimate association; but are merely indicative of a brief encounter. We conclude that Salois has not presented evidence sufficient to require a mistrial.

Affirmed.

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


text:
    KIMBERLY ANN GRAHAM and Sharon Graham, Plaintiffs and Appellants, v. MONTANA STATE UNIVERSITY, Defendant and Respondent.
    No. 88-305.
    Submitted on Briefs Nov. 17, 1988.
    Decided Dec. 30, 1988.
    767 P.2d 301.

      Robert D. Morrison, Morrison, Young, Melcher and Brown, Havre, for plaintiffs and appellants.
    James M. Scheier, Agency Legal Services Bureau, Helena, for defendant and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Kimberly and Sharon Graham appeal from the order of the District Court of the Seventeenth Judicial District, Blaine County, granting summary judgment in favor of Montana State University (MSU). We affirm.

The Grahams present three issues for review:

1. Whether the District Court erred in determining that MSU had no duty to supervise Kimberly Graham as a matter of law.

2. Whether the District Court erred in determining that the risk to Kimberly Graham was unforeseeable as a matter of law.

3. Whether the District Court erred in dismissing Sharon Graham’s claim for loss of consortium.

Kimberly Graham (Kimberly) participated in the Minority Apprenticeship Program (MAP) at MSU during the summer of 1984. MAP is designed to encourage minority high school students to pursue careers in the sciences by providing work-related experience in various scientific research taking place at MSU. Kimberly was 16 when she was accepted for the program, and was a student at HaysLodgepole High School.

The students in the program lived on-campus in a university dormitory or “residence hall” and worked as research assistants to MSU scientists. MSU hired Vaschelle LaForge as a residence hall advisor/supervisor for MAP participants. Her job was to act as a friend and role model for the MAP students, and to enforce the rules of conduct adopted by MSU for program participants:

“1. Consumption of alcoholic beverages in any form is strictly prohibited by all MAP participants.

“2. Be on time to all scheduled activities.

“3. Written notice and approval are required from parents and [the program director] before leaving Bozeman any time between initial arrival and the end of the scheduled program (July 27).

“4. Not permitted to drive or accept rides in vehicles other than those provided by the Minority Apprenticeship Program staff.

“5. Required to be on the assigned residence hall floor by 10:30 p.m. week nights (Sunday-Thursday) and 12:00 a.m. weekends (Friday-Saturday) and in own room by 11:00 p.m. weeknights and 12:30 a.m. weekends.

“6. No visitors allowed after the 11:00 p.m. curfew weeknights and the 12:30 curfew on weekends.

“Failure to comply with any of these rules will result in disciplinary action which may lead to dismissal from the Minority Apprenticeship Program.”

A copy of these rules had been provided to the Grahams before Kimberly was actually accepted for the program.

On a Sunday afternoon approximately two weeks after the program began, Kimberly and several other MAP participants obtained LaForge’s permission to visit the off-campus residence of Darryl J. Tincher. While it is not settled in the record, there is deposition testimony that a party had been taking place at this residence since the previous evening. LaForge testified in deposition that she did not know of the party.

At the party, Kimberly drank beer and became “a little drunk.” Deposition testimony also conflicts as to whether LaForge knew Kimberly was drinking at the party. According to Kimberly’s deposition, LaForge came to the residence, saw Kimberly and other MAP students drinking, but took no action. LaForge testified in her deposition that she did not see any drinking by MAP students, and indeed did not enter the house when Kimberly said she did.

At some point that afternoon, Tincher offered Kimberly a motorcycle ride, which she accepted. They first drove a short distance to a convenience store, where Tincher bought gasoline for the motorcycle and beer. They then proceeded to Big Sky, where they stopped at a bar and drank a total of four mixed drinks between them. On the return trip to Bozeman, Tincher’s motorcycle left the highway and hit an embankment. Kimberly was seriously injured. Tincher testified in deposition that he had turned around to speak to Kimberly when the accident occurred.

The Grahams filed suit against Tincher, MSU and the owners of the bar in Big Sky alleging negligence on the behalf of all defendants that caused Kimberly’s injuries. MSU moved for summary judgment, arguing (1) MSU owed no duty to Kimberly and (2) any alleged negligence on MSU’s part was not the proximate cause of Kimberly’s injuries. The District Court granted the motion, and this appeal followed.

The standard for review of summary judgment is the same as that used by the trial court granting the judgment. In order for summary judgment to issue, the movant must show that there is no genuine issue as to all facts that are material in light of the substantive principles entitling the movant to judgment as a matter of law. Frigon v. Morrison-Maierle, Inc. (Mont. 1988), [233 Mont. 113,] 760 P.2d 57, 45 St.Rep. 1344.

The basis of the District Court’s decision in this case is foreseeability, an element of both duty and proximate cause in negligence cases. The court relied on our decision in Schafer v. State Dept. of Institutions (1979), 181 Mont. 102, 592 P.2d 493. On the question of duty, the Schafer decision stated:

“This element serves as a limit on liability for acts which might, under other circumstances, be negligent. The substance of foreseeability as it relates to negligence is that a defendant who could not foresee any danger of injury from his conduct or any risk from an intervening force is not negligent, [citation] Absent foreseeability, there is no duty; absent duty, there is no negligence.”

Schafer, 592 P.2d at 495. While we agree with the court that foreseeability is an issue on the question of duty in this case, we are troubled by the implications of eliminating a university’s duty toward a juvenile such as Kimberly.

The court discounted two arguments put forth by the Grahams in their effort to prove that MSU owed a duty to Kimberly. The Grahams relied on two sections of the Restatement (Second) of Torts Section 314A(4) of the Restatement imposes a duty to aid or protect on some one who voluntarily takes custody of another under circumstances that deprive the latter of his normal opportunities for protection. Section 323 of the Restatement provides that once some one undertakes to provide some service that imposes a duty toward another person, he will be liable for any failure to exercise due care in carrying out that undertaking.

According to the Grahams, MSU assumed a duty to protect Kimberly because it effectively took custody of her while she participated in the MAP program, thereby eliminating her normal opportunity for parental protection. MSU was also bound to exercise due care in supervising Kimberly and the other MAP participants, a service the university voluntarily undertook by hosting the MAP program.

The two cases central to MSU’s argument on this point are Bradshaw v. Rawlings (3d Cir. 1979), 612 F.2d 135, and Beach v. University of Utah (Utah 1986), 726 P.2d 413. Both cases note the demise of the in loco parentis status once occupied by universities, and hold that universities no longer have a special, custody relationship to their adult students. However, the reasoning employed in both cases shows a distinction between them and the case at bar.

The Bradshaw court found no duty running from the university to Bradshaw, because “[c]ollege students today are no longer minors.” The court noted college students’ ability to vote, marry, make a will and the like, which had wrought a change in their relationship with universities:

“There was a time when college administrators and faculties assumed a role in loco parentis. Students were committed to their charge because the students were considered minors. A special relationship was created between college and student that imposed a duty on the college to exercise control over student conduct, and, reciprocally, gave the students certain rights of protection by the college.”

Bradshaw, 612 F.2d at 139. The Utah Supreme Court cited Bradshaw with favor in Beach, and further noted:

“Elementary and high schools certainly can be characterized as a mixture of custodial and educational institutions, largely because those who attend them are juveniles. However, colleges and universities are educational institutions, not custodial.”

Beach, 726 P.2d at 419.

The plaintiff in this case is a minor high school student. When MSU undertook to have Kimberly live on its campus and supervise her during the MAP program, it assumed a custodial role similar to that imposed on a high school because Kimberly is a juvenile. Once MSU assumed that role, it was charged with exercising reasonable care in supervising the MAP participants.

Kimberly testified that LaForge knew there would be drinking at the party, and indeed witnessed MAP participants at the party drinking beer. LaForge denies knowing of or seeing any drinking by MAP participants. Given MSU’s custodial role regarding MAP participants, this is a dispute as to a material fact.

If LaForge did in fact know of or see drinking by minor MAP participants at the party, that knowledge would render her duty immediate. Her failure to act would be a breach of that duty, and could be negligence imputable to MSU if the circumstances warrant. On the other hand, if LaForge did not have actual knowledge of the drinking, the extent of her duty would depend on what she reasonably could foresee as the possible result of allowing the MAP students in her charge to visit Tincher’s house.

In contrast to the question of MSU’s duty toward Kimberly, foreseeability is dispositive of the question of proximate cause. If the Grahams establish MSU’s duty and show that LaForge’s inaction amounted to a breach of that duty, they must still prove that the breach was the proximate cause of Kimberly’s injuries. Without a showing of proximate cause, a negligence claim fails. 57 Am.Jur. 2d Negligence § 128.

Simply stated, the record shows that Kimberly’s drinking at the party was not the proximate cause of her injuries. Tincher consumed enough alcohol that day to be charged with driving under the influence alcohol or drugs. He later pled guilty to that charge. Tincher also testified that he was driving with his head turned away from the road in order to talk to Kimberly, who was riding behind him on the motor-cycle. Tincher therefore could not see the road ahead, or where the motorcycle was headed. Tincher’s actions caused the motorcycle to leave the highway, and were therefore the intervening cause of Kimberly’s injuries. Her injuries were not reasonably foreseeable consequences of LaForge’s failure to take action regarding Kimberly’s drinking.

If there is no room for a reasonable difference of opinion as to whether the action of a party other than the defendant is the intervening cause of the plaintiff’s injury, summary judgment based on proximate cause is proper. Schafer, 592 P.2d at 496. Tincher’s actions leave no question of material fact as to proximate cause in this case. That element of the Grahams’ case is missing, and their claims therefore necessarily fail.

We affirm the decision of the District Court.

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


author: MR. CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RODNEY O. SKURDAL, Defendant and Appellant.
    No. 88-362.
    Submitted Nov. 10, 1988.
    Decided Dec. 30, 1988.
    767 P.2d 304.

      Rodney 0. Skurdal, Gillette, Wyo., pro se.
    Mike Greely, Atty. Gen., Kathy Seeley, Asst. Atty. Gen., Helena, James Yellowtail, County Atty., Hardin, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Rodney 0. Skurdal was convicted in the Thirteenth Judicial District, Big Horn County, of operating a motor vehicle without a valid driver’s license and exceeding a posted nighttime speed limit.

Skurdal refuses to procure and carry a driver’s license on various constitutional grounds. He raises twenty-eight issues on appeal. We have reduced those to one basic question: Were any of Skurdal’s constitutional rights violated?

We hold that none of Skurdal’s constitutional rights were violated and that it is a proper exercise of the State’s police power to require a valid driver’s license before one may operate a motor vehicle on the public highways in Montana.

Judgment affirmed.

It should be noted here that the State was not required to file a response brief, because Skurdal’s appellate handwritten brief was not properly filed with this Court. Skurdal appears pro se in forma pauperis. We have accepted Skurdal’s appeal, despite its irregularities, because it contains frequently raised arguments which need to be finally settled.

We have subdivided Skurdal’s voluminous brief and have organized his various arguments in the following manner.

I. The Driver’s License

Skurdal asserts that it is unconstitutional for the State to require him to procure a driver’s license before operating a motor vehicle on the public highways. According to Skurdal, it violates his constitutional right to freedom of travel and right to use his private property (his car) without governmental interference. Lastly, he asserts that the state legislature is unconstitutionally encroaching on his absolute constitutional rights and that the judiciary is blindly accepting these laws and further encroaching on his rights. We disagree.

Skurdal’s appeal is without merit. This Court has already ruled on that issue. “We have previously recognized the power of the State to regulate licensing of drivers in the interests of public safety.” Sedlacek v. Ahrens (1974), 165 Mont. 479, 483, 530 P.2d 424, 426. Licensing is the best means to determine that drivers meet a minimal standard of competence. It is a justifiable, reasonable and desirable exercise of the police power of the State.

That police power was recognized by the United States Supreme Court as early as 1837 when it stated that “state and local governments possess an inherent power to enact reasonable legislation for the health, safety, welfare or morals of the public.” Charles River Bridge v. Warren Bridge Co. (1837), 11 Peters 496, 9 L.Ed. 773. That the states currently possess that police power is unquestioned. Polk v. Oklahoma Alcoholic Beverage Control Board (Okla. 1966), 420 P.2d 520. Montana recognizes that such police power exists even when the regulations are an infringement of individual rights. State v. Rathbone (1940), 110 Mont. 225, 241, 100 P.2d 86, 92. Skurdal is aware that this issue was raised and rejected by this Court in 1986 when he, himself, was here before. City of Billings v. Skurdal (Mont. 1986), [224 Mont. 84,] 730 P.2d 371, 43 St.Rep. 2036, cert. denied, 481 U.S. 1020, 107 S.Ct. 1902, 95 L.Ed.2d 508, reh. denied, _U.S._, 107 S.Ct. 2492, 96 L.Ed.2d 384 (Skurdal I). We will not entertain his argument on this issue again and will deem any further pursuit of this issue frivolous.

However, because his legal research is incomplete and his analysis flawed, we feel the need to fully discuss his claims to reach a final resolution of these arguments. Many of our sister states as well recently have decided similar cases with near identical arguments. This is obviously a growing school of thought which has been misguided.

a. Rights are not absolute.

One must begin with the basic premise that constitutional rights are not always absolute; rather, there are just constitutional safeguards which must first be met before a government may infringe on an individual’s rights. For example, the private property interests Skurdal asserts are not absolute, but the Constitution guarantees that due process will be had before an infringement occurs. Even such fundamental rights as those guaranteed by the First Amendment are not immune from governmental regulation. Seward Chapel, Inc. v. City of Seward (Alaska 1982), 655 P.2d 1293. Most noteworthy is the fact that a city may always impose reasonable restrictions on the time, place and manner in which such First Amendment rights are exercised.

This is what Skurdal calls the encroachment of his absolute rights and the judiciary’s blind acceptance. However, this is the law in this country. Agreeing with the law is not a prerequisite to following it.

b. Right to freedom of travel

The right to freedom of travel, not only is not even implicated in this case, it has not been infringed. At no time were there any constraints by the State of Montana on this right of Skurdal. He has at all times remained free from state regulation and constraint, able to leave this state and travel as he pleases. He was free to get on a plane and fly to New York, free to take a bus back to Wyoming; he existed free of any state interference of this right to travel.

This notion of right to travel remains wholly separate from the right or privilege to operate a motor vehicle on the public highways in Montana. As was stated recently by the Utah Supreme Court, “appellant’s assertion that the right to travel encompasses the unrestrained use of the highway is wrong. The right to travel granted by the state and federal constitutions does not include the ability to ignore laws governing the use of public roadways.” City of Salina v. Wisden (Utah 1987), 737 P.2d 981, 983.

c. Operating a motor vehicle: right or privilege

Many states have recently debated under similar circumstances whether it is a privilege or a right to drive on state highways. Predictably, Skurdal argues that it is an absolute right. We disagree.

The ability to drive a motor vehicle on a public highway is not a fundamental right; it is a revocable privilege that is granted upon compliance with statutory licensing procedures. City of Salina, 737 P.2d at 983; State v. Svendrowski (Mo.App. 1985), 692 S.W.2d 348, 349; Texas Dept. of Public Safety v. Schaejbe (Tex. 1985), 687 S.W.2d 727, 728; State v. Coyle (1984), 14 Ohio App.3d 185, 470 N.E.2d 457, 458, 14 O.B.R. 203; Mackler v. Alexis (1982), 130 Cal.App.3d 44, 181 Cal.Rptr. 613, 622-623; State ex rel. Hjelle v. A Motor Vehicle, Etc. (N.D. 1980), 299 N.W.2d 557, 562; Smith v. Cox (Utah 1980), 609 P.2d 1332, 1333.

Whether it is termed a right or a privilege, one’s ability to travel on public highways is always subject to reasonable regulation by the state in the valid exercise of its police power. Gordon v. State (1985), 108 Idaho 178, 697 P.2d 1192, 1193, appeal dismissed, 474 U.S. 803, 106 S.Ct. 35, 88 L.Ed.2d 29 (1985), reh. denied, 474 U.S. 1097, 106 S.Ct. 874, 88 L.Ed.2d 912 (1986).

Our motor vehicle codes were promulgated to increase the safety and efficiency of our public roadways. It enhances rather than infringes upon the citizen’s right to travel. City of Salina, 737 P.2d at 983. The privilege properly may be revoked for noncompliance, §§ 61-5-105, -201, and -205, MCA, and such would not be an infringement of the revokee’s right to travel.

II. Liberty Interests

Skurdal claims that his right to liberty as guaranteed by the Constitution was violated when the Montana Highway Patrol stopped his vehicle and detained him personally. We disagree.

Skurdal was stopped by Officer Joseph Coughlin after the officer visually observed Skurdal’s vehicle traveling at a high rate of speed and confirmed that with his radar equipment. After being unable to produce a valid driver’s license and unable to post the necessary bond, Skurdal was arrested.

The officer had probable cause to stop the Skurdal vehicle. Probable cause that Skurdal had committed an offense consisted of the officer’s visual observation, confirmed by the radar reading. See also § 61-8-703, MCA, arrest without a warrant in radar cases. Thus, Skurdal was properly stopped. Such a lawful and proper stop can in no way be construed as a violation of Skurdal’s constitutional rights.

a. “Free man status”

We reject Skurdal’s argument that he is a “free man” exempt from the laws because he has “no contracts” with either the state or federal governments. Skurdal is a “person” as defined by § 61-1-307, MCA, and bound by the statutes in Montana which he violated. Consent to laws is not a prerequisite to their enforceability against individuals. City of Salina, 737 P.2d at 983. No persons in Montana may exempt themselves from any law simply by declaring they do not consent to it applying to them. We must all abide by the valid laws, even the ones with which we do not agree, or justice will be served against us for the violation. Accepting Skurdal’s assertion of exempt status is an invitation to anarchy. We decline that invitation.

b. Private automobile, noncommercial use

We reject Skurdal’s claim that because he owes nothing on his car (private property) and is not engaged in commercial travel, his liberty interests are infringed by stopping his vehicle. That claim is baseless in Montana, and we find no law in any other jurisdiction to support it either. We will not entertain it further.

III. Miranda Warning

Skurdal asserts that his constitutional rights were also violated because he was not given a Miranda warning after he was stopped. Skurdal is wrong, as we pointed out in his last case in this Court. That issue was squarely decided by us in Skurdal I, where we stated:

“The United States Supreme Court has held that there must be a custodial interrogation before the Miranda warning need be given. Custodial interrogation does not occur at a traffic stop. . .”

730 P.2d at 374.

We need not discuss this argument further.

IV. Right to Counsel

Skurdal claims that his constitutional right to counsel was violated when he was not granted court-appointed counsel and was not appointed the counsel of his choice. We disagree. Skurdal wished to have an advisor, a personal acquaintance who was not a lawyer, help contest the State in his trial on these two traffic tickets and have the government tax dollars pay for it.

In his argument, Skurdal misconstrues this right as being absolute and pertaining to any counsel, not necessarily legal counsel. Skurdal is wrong on both counts.

Section 46-8-101(3), MCA (1985), provides that appointment of counsel for misdemeanor charges such as these is discretionary with the trial judge. This statue provides for such appointment “in the interests of justice.” The Attorney General for the State of Montana has taken the position that appointment of counsel in misdemeanor cases is mandatory, assuming indigency, “unless the judge has weighed the seriousness and gravity of the offense and precludes imprisonment upon conviction, and informs the defendant of this before trial.” A.G. Op. No. 36. This opinion is based on the United States Supreme Court case of Arsinger v. Hamlin (1972), 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530.

Thus, the crux of the issue is whether, after a determination of indigency, Judge Speare determined that these charges merited incarceration if convicted. Obviously, from the record and from the sentence he imposed, he did not entertain seriously incarceration as an appropriate sentence. His denial of court-appointed counsel was therefore proper.

Lastly, on this subject, no one has the constitutional right to counsel of his choice. State v. Hartford (1982), 133 Ariz. 328, 651 P.2d 856. Those who require counsel are guaranteed the effective assistance of counsel, thus nullifying any need or right to choose among those qualified lawyers. Appointment of counsel is clearly a choice for the trial court.

CONCLUSION

We commend Skurdal on his efforts and participation in his government. We defend his right to hold a differing political and legal opinion. However, we repeat that the issues herein raised are now settled, and any further appeal of them in this Court will be deemed frivolous.

We decline to impose sanctions for frivolous appeals as per the request of the Big Horn County Attorney based on Skurdal I, supra. We do not reach the issue of what sanctions are appropriate for frivolous appeals as made by pro se litigants.

Finally, we do not reach Skurdal’s question of whether Federal Reserve Notes are “dollars.” His quarrel with the federal monetary system has no relevant bearing on any of the contested issues in this case regarding Skurdal’s criminal liability. We hold that Skurdal may promptly pay his $350 traffic fine to Big Horn County in any form of lawful United States money.

Judgment affirmed.

MR. JUSTICES HARRISON, SHEEHY, WEBER, HUNT, GULBRANDSON and McDONOUGH concur.


text:
    LINDA J. WINCHELL, (Richard M. Winchell, fatal), Claimant and Respondent, v. FALLS SHEET METAL, Employer, and State Compensation Insurance Fund, Defendant and Appellant.
    No. 88-301.
    Submitted on Briefs Nov. 17, 1988.
    Decided Jan. 5, 1989.
    766 P.2d 1313.
    Charles R. Johnson, Marra, Wenz, Johnson & Hopkins, Great Falls, for defendant and appellant.
    J. David Slovak, Ugrin, Alexander, Zadick & Slovak, Great Falls, for claimant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Linda Winchell filed a claim for compensation following the death of her husband, Richard Winchell. The Workers’ Compensation Court determined that Richard’s death due to a ruptured congenital aneurysm was the result of a compensable injury within the meaning of the Workers’ Compensation Act of 1985. The State Insurance Fund (State Fund) appeals from that determination. We affirm.

We consolidate the issues set forth by the State Fund into a single inquiry for purposes of our review:

Did the Workers’ Compensation Court err in determining that Richard Winchell’s death was the result of a compensable injury?

On December 6, 1985, Richard Winchell suffered a ruptured congenital brain aneurysm while performing his duties at Falls Sheet Metal, a family owned business in Great Falls, Montana. Richard was the president of Falls Sheet Metal, which was engaged in the sale, installation, and repair of heating and air-conditioning systems. He had been involved in the business for 31 years and his primary responsibilities were to perform warranty and service work on systems which Falls Sheet Metal installed.

The morning of December 6, 1985, Richard was preparing to convert a natural gas furnace to propane when he collapsed to the floor of the shop soon after arriving at work. He was discovered by his brother, Gary Winchell, and was transported to a local hospital where he died 5 days later without regaining consciousness. He was 44 years old and was survived by his wife Linda and their two minor children.

The cause of Richard’s death is undisputed. He died of a “subarachnoid hemorrhage resulting from a ruptured congenital saccular aneurysm of the intracranial arteries at the base of the brain.” Through deposition testimony, a neurosurgeon described an aneurysm as “an out-pouching or bulging in the wall of a blood vessel due to a weakness in the wall. This outpouching is a thin inelastic wall, which may either turn to fibrous tissue, or it may become thinner and thinner and then eventually burst.” The neurosurgeon testified that while Richard’s aneurysm was not present from birth, as might be implied from the term “congenital,” the predisposition or weakness was, and the aneurysm developed over the ensuing years.

All four of the medical experts deposed, including the neurosurgeon, agreed that hypertension is a major contributing factor to the growth of an aneurysm. One of the medical experts stressed the importance of treating high blood pressure in persons with a predisposition for an aneurysm, in order to deter the aggravation of a preexisting aneurysm. There was no evidence that Richard Winchell or his doctors were aware of any high blood pressure in the decedent prior to his death. A physician who examined Richard on two occasions during the year preceding his death testified that his blood pressure was normal on both dates. However, the autopsy revealed that Richard had suffered hypertension for several months prior to his death. The pathologist who performed the autopsy testified that the left ventricle of Richard’s heart was enlarged, which is consistent with high blood pressure, and that the thickness of the left ventricular wall indicated hypertension had been present for at least months.

The medical experts agreed that hypertension can be sustained over a long period of time or it can be a temporary increase in blood pressure. The experts varied in their opinions about the causes of hypertension or what degree of hypertension would cause an aneurysm to rupture. Three of the experts testified that mental stress or perceived mental stress could sufficiently raise a person’s blood pressure. The fourth physician stated that mental stress was not known to play an active role in the rupture of an aneurysm, but he testified that mental stress can cause the release of adrenal hormones which has been linked to hypertension.

Vigorous physical activity and extreme emotional reactions were identified as other factors leading to a temporary increase in blood pressure. Finally, there was testimony to the effect that, regardless of conjecture, it is impossible for medical science to determine what actually caused Richard Winchell’s aneurysm to rupture. On appeal, the State Fund contends that the claimant has failed to show, either through medical testimony or by other evidence, that the decedent’s work had anything to do with his ruptured aneurysm.

Did the Workers’ Compensation Court err in determining that Richard Winchell’s death was the result of a compensable injury?

The standard of review to be applied is whether substantial credible evidence was presented to support the Workers’ Compensation Court’s determination that Richard Winchell died as a result of a compensable injury. Snyder v. San Francisco Feed and Grain (Mont. 1987), [230 Mont. 16,] 748 P.2d 924, 929, 44 St.Rep. 2216, 2224. For Linda Winchell to be successful in her claim, she was required to prove that her husband’s death resulted from an injury which arose out of and was in the course of his employment. Section 39-71-407, MCA (1985). In Snyder, this Court found a compensable injury under the 1985 Workers’ Compensation Act where the claimant suffered a ruptured aneurysm which was shown to be aggravated to the point of rupture by mental strain due to the claimant’s stressful work environment. Snyder, 748 P.2d at 930. Under that theory it was necessary for Linda Winchell to bring forth evidence of a stressful work environment and to establish causation. We note that the legislature has amended the definition of “injury” under the 1987 Workers’ Compensation Act to preclude recovery for injuries caused by physical or mental conditions which arise from emotional or mental stress, which is not applicable here. Section 39-71-119, MCA.

The Workers’ Compensation Court correctly noted that because medical science is presently unable to determine exactly what caused Richard’s aneurysm to rupture, it is necessary to look to indirect evidence to establish causation. Conway v. Blackfeet Indian Developers, Inc. (1983), 205 Mont. 459, 468, 669 P.2d 225, 229. The court referred to the testimony of the four medical experts and Richard’s wife and brothers to determine whether his rupture could have been caused by hypertension due to a stressful work environment. We will review the court’s findings of fact in this regard to see if they are supported by the evidence in the record.

The Workers’ Compensation Court found that the period of September through the end of November is generally the most hectic time of year at Falls Sheet Metal. Customers who have problems with their heating systems usually wait until the cold sets in to have any repairs done. Recently installed systems, of which there were many during that period, often require warranty service to work out minor problems. It was Richard’s responsibility to respond to those service and warranty calls. According to business records, Falls Sheet Metal performed 17 service calls during the month of November and 20 service calls during December of 1985. There was no documentation on how many warranty calls were made during that time. The court also found that November and December of 1985 were unusually cold months even for Montana, which resulted in Richard’s service calls often being of an emergency nature and requiring immediate attention. These findings are substantiated by the testimony of Gary Winchell, Richard’s brother and co-owner of the family business, who handled many of the incoming service request calls during that period.

Detailed findings were made by the court regarding Richard Winchell’s easygoing nature and uncomplaining attitude, which began to change during the weeks prior to his death. The court found Richard to be a taciturn man who liked to work at his own pace, was not accustomed to doing a lot of emergency type work, and would not express himself regarding any stresses or emotional or physical problems he might be experiencing. Although Gary Winchell testified that his brother did not appear any more hurried or busy during November, he did notice that Richard looked “kind of peaked.”

The court made similar findings based on the testimony of Richard’s wife Linda. During the weeks prior to his death, Richard appeared to be very fatigued and he complained of the terrible cold. He had become “crabbier and he barked at the children.” He complained of chest pains and intermittent headaches, and told Linda that he was tired because they were “running their butts off” at the shop. One Friday night approximately 2 weeks prior to his collapse, Richard responded to two night-time service calls. That evening he came home from work complaining of fatigue and chills, and went to bed early. At 10:30 p.m. he was awakened by a telephone service call to which he responded and returned home an hour later. At 2:30 a.m. Richard was required to respond to another service call. He returned very tired and chilled, as it was 30 degrees below zero that night. Four days prior to his collapse, the court found that Richard suffered a debilitating headache which he described as feeling “like he had a tumor in his head,” and which caused him difficulty in sleeping for several days. Having reviewed the record, we conclude that the court’s explicit findings regarding Richard’s characteristic temperament and his apparent change in demeanor closely parallel the testimony of the brother and the wife, and that this is substantial evidence to support the court’s findings.

Based on those findings, the court concluded that Richard’s sudden change in demeanor was inconsistent with his easygoing nature, illustrating that he was undergoing a period of unusual stress. Given his tendency to keep his feelings and emotions to himself, we do not consider it unusual that Richard did not relate any stresses he might have felt to his family, much less discuss the source or implications of that stress.

The medical experts agreed that hypertension is a major contributory factor to the rupture of an aneurysm, and the pathologist’s findings conclusively establish that Richard suffered hypertension for at least several months prior to his death. We note that there was no evidence indicating that any other facet of Richard’s life outside of his work produced any stress or emotional strain. We conclude that the medical evidence together with the other evidence is sufficient to support the court’s conclusion that Richard’s death was the result of a compensable injury within the meaning of the Workers’ Compensation Act of 1985.

Affirmed.

MR. JUSTICES HARRISON, SHEEHY, GULBRANDSON and HUNT concur.


text:
    PAUL BROKKE, Plaintiff and Respondent, v. ALBERT D. WILLIAMS d/b/a Al’s Pawnshop, Defendant and Appellant.
    No. 88-448.
    Submitted on Briefs Dec. 9, 1988.
    Decided Jan. 5, 1989.
    766 P.2d 1311.

      Albert D. Williams, Bozeman, pro se.
    Paul Brokke, Bozeman, pro se.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

This is an appeal from judgment entered in the Eighteenth Judicial District awarding damages in the amount of $89.95 plus costs to plaintiff Paul Brokke. Both Brokke and Williams are pro se litigants. Defendant Williams appeals. We affirm.

The issue on appeal is whether a merchant can disclaim responsibility for furnishing title to goods sold in his business by placing “sold as is” signs in his establishment. We hold that he cannot.

Albert D. Williams operates a pawnshop in Bozeman, Montana. Plaintiff Paul Brokke entered defendant’s business on October 31, 1985, and placed a Pentax Super Program camera on layaway by paying a $20 down payment and agreeing to pay the $69. 95 balance due on the purchase. The camera was stolen property.

On November 4, 1985, plaintiff paid the remaining balánce on the layaway transaction and took possession of the camera, serial number 1190586. Later that same month, plaintiff was notified by the Bozeman police department that the camera was stolen property. He was directed to surrender the camera to the police department which he did on November 18, 1985.

Plaintiff promptly returned to the pawnshop and requested a refund for his purchase of the stolen merchandise. That request was denied by Williams and litigation ensued.

After justice court proceedings, hearing was held on January 21, 1988, which resulted in a District Court judgment in favor of plaintiff. Defendant appeals.

Defendant argues that he had no knowledge that the merchandise was stolen property. Williams argues further that he disclaims any warranty of title to goods sold in his business by way of large fluorescent signs posted which alert buyers that the merchandise sold on the premises is sold “as is,” and by writing the same on his sales receipts. We disagree.

It was disputed as to whether the signs described and entered into evidence at the hearing by photographs taken by defendant were actually in place when plaintiff entered the store. However, that factual dispute is not relevant to the legal issues involved.

The issue is controlled by the Montana Uniform Commercial Code (UCC). Section 30-2-312, MCA, warrants that a merchant selling goods passes clear title to the goods. Clearly, Williams breached that warranty of title required by the code when he sold stolen goods to Brokke because it has long been established that a thief cannot pass clear title to his stolen goods, City of Portland v. Berry (1987), 86 Or.App. 376, 739 P.2d 1041; nor can his successor. It is irrelevant that Williams claims he did not know the goods were stolen.

With respect to breach of warranty, Williams, as a merchant, is held to a higher standard of dealing than ordinary consumers. Pace v. Sagebrush Sales Co. (1977), 114 Ariz. 271, 560 P.2d 789. Further, Williams is held to the obligatory good faith required in the performance of every contract and every duty under the UCC. Section 30-1-103, MCA. Good faith is defined under the UCC as “honesty in fact.” Section 30-1-201(19) MCA.

It is undisputed that Brokke promptly notified Williams of his breach of warranty of title, thus defeating many defenses available to Williams under the code.

The question then becomes, did Williams do anything to effectuate a disclaimer of the warranty of title in this transaction. We affirm the trial court’s conclusion that he did not.

Warranty of title is not subject to the disclaimers found in § 30-2-316, MCA, pertaining to fitness and merchantability. Williams argues that his conduct of placing the signs is his notice of a specific and written disclaimer. However, that conduct does not meet the disclaimer of warranty of title found in § 30-2-312(3), MCA, which states “unless otherwise agreed” a seller who is a merchant warrants that the goods shall be delivered free of the rightful claim of any third person. Clearly, there could have been no agreement to that effect between Williams and Brokke when Brokke denies ever seeing the signs which Williams claims were up in his premises on the date of the transaction. Brokke further testified to having no conversations with Williams regarding the title of the camera. That testimony conflicts with Williams’ account of having verbally informed Brokke that the title could not be guaranteed.

The trial court found that Williams had a duty to deliver clear title to the property, that he could not do so because it was stolen and that simply placing “as is” signs in his store does not defeat that duty nor relieve him of liability for defects. We agree. The trial court additionally found that it violates the public policy of this state to allow pawnbrokers to profit from the sale of stolen property. Montana law as written by our legislators and found in the UCC supports that conclusion.

Williams fails to convince this Court that the trial court’s judgment was an abuse of discretion and not based on substantial credible evidence. Davis v. Sheriff (Mont. 1988), [234 Mont. 126,] 762 P.2d 221, 45 St.Rep. 1783.

Brokke is entitled to a refund of the $89.95 paid to Williams plus his costs in this action as awarded by the District Court and his costs on appeal.

Judgment affirmed.

MR. JUSTICES HARRISON, WEBER, GULBRANDSON and SHEEHY concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. FATINA SMALL, Defendant and Appellant.
    No. 88-451.
    Submitted on Briefs Dec. 16, 1988.
    Decided Jan. 5, 1989.
    767 P.2d 316.
    John Keith, Great Falls, for defendant and appellant.
    Marc Racicot, Atty. Gen., Dorothy McCarter, Asst. Atty. Gen., Helena, Patrick L. Paul, County Atty., Great Falls, Stephen E. Hagerman, Deputy County Atty., for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Defendant probationer Fatina Small appeals an order from the Eighth Judicial District, Cascade County, revoking her deferred sentence for probation violations and sentencing her to serve three years in the Montana State Prison at Deer Lodge. (Sentence suspended in its entirety.) We affirm.

The issue on appeal is whether the warrantless search initiated by defendant’s probation officer pursuant to the terms of her probation violated her constitutional rights. We hold that it did not.

Defendant was charged by information on September 3, 1986, with three counts of felony drug violations for the sale of dangerous drugs as specified by § 50-32-101, MCA. Defendant plead not guilty to each count. Later, pursuant to a written plea agreement with the Cascade County Attorney’s deputy, defendant plead guilty to the first count and the other two were dismissed. Defendant’s sentence was deferred for three years based on certain probation conditions. The pertinent conditions read as follows:

“1. Defendant is prohibited from possessing or using any dangerous drugs except those prescribed by a medical doctor.

<<* * *

“5. Upon reasonable suspicion that the Defendant is violating the above condition relating to the no use of marijuana or any other dangerous drug, the Defendant shall be subject to search and seizure at any time of the day or night, by any law enforcement officer, without the necessity of obtaining a search warrant.”

Testimony indicated that special provisions were recommended in the presentence report by the Adult Probation and Parole Office due to defendant’s admissions of the regular use of dangerous and illegal drugs. The provision specifically recommended by Probation Officer Rick Holzheimer read follows:

“You shall, while on parole, or during the period of your probation if so stipulated by the Court, submit to a search of your person, automobile or place of residence by a probation/ parole officer, at any time of the day or night, with or without a warrant, upon reasonable cause as ascertained by a probation/parole officer.”

Trial judge substituted his special condition number 5, supra, for the one recommended by Holzheimer.

On February 25, 1988, a confidential informant contacted Captain Robert Stevens of the Great Falls Police Department and stated that the person living at 411 Sixth Street in Great Falls (defendant’s address) was dealing in marijuana and distributing it. The informant contacted Stevens again approximately two weeks later on March 4, 1988, indicating to him that drugs would be at the same location that afternoon and available for sale. Stevens testified to the reliability and on-going nature of the accurate information from this confidential informant. On both occasions, Stevens relayed this information to Detective Brian Lockerby.

Brian Lockerby notified defendant’s probation officer, Rick Holzheimer, after the first contact by the informant and was informed of defendant’s conditional probation at that time. After the second contact, Lockerby notified Detective Renman and then Holzheimer. Lockerby testified that he did not attempt to obtain a search warrant because he was advised of the probation provision authorizing a warrantless search and that he anticipated Holzheimer would bring the agreement with him if they were to search defendant’s premises.

After alerting Holzheimer, Renman and Lockerby went to the defendant’s residence that day. They arrived about 5:00 p.m. and watched the house for approximately one hour waiting for Holzheimer to arrive.

Once Holzheimer arrived at the defendant’s residence, Detective Sinnott knocked on defendant’s door. The four identified themselves to the defendant and explained their presence. They entered the house at that time and found two containers of marijuana and other drug paraphernalia. Defendant was issued citations by the police at that time and was verbally advised by Holzheimer that she was in violation of her probation for possession of the drug. Holzheimer further testified that he smelled marijuana upon entering the residence and defendant’s eyes were glassy.

Defendant filed a motion to suppress this evidence at the revocation hearing. The motion was denied at the June 6, 1988, hearing. Defendant appeals.

Defense counsel contends that this warrantless search initiated by the probation officer is patently unconstitutional in this case and the fruits of the search should be suppressed based on State v. Fogerty (1980), 187 Mont. 393, 610 P.2d 140. Fogerty held that the unlimited warrantless search, to be initiated without any reasonable grounds, was an unconstitutional provision in the defendant’s probation conditions. However, pending the instant appeal, Fogerty was overruled by this Court in State v. Burke and Roth (Mont. 1988), [234 Mont. 119,] 766 P.2d 254, 45 St.Rep. 2278.

Burke and Roth and its predecessors focused on the lack of a search warrant and lack of a basis for the police to institute the warrantless search. Such is not the focus here, because this case turns on the conduct of the probation officer.

Defendant’s probation officer in the case at bar not only initiated the search of defendant’s residence, but was present and actually participated in it. The officers testified that they waited in front of the residence for one hour for Holzheimer to arrive and direct the search. Probation Officer Holzheimer testified that he authorized the search, went to the premises to authorize and supervise the search and was accompanied into the house by law enforcement personnel for his own safety.

Such conduct is constitutionally sound under Montana law. We need not discuss the warrantless search on a Fogerty, Burke and Roth analysis of the search provision itself, because the search in this case was instigated and supervised by a probation officer and was not independent police action. Such a search by a probation officer of his probationer, probationer’s car, premises or other belongings is lawful. As was stated in Burke and Roth: “The probation officer must be able to supervise the probationer, and upon his judgment and expertise, search the probationer’s residence or cause it to be searched.” 766 P.2d at 257, 45. St.Rep. at 2283.

Additionally, reasonable grounds existed to initiate the probation officer’s search. The communications between the Great Falls Police Department and the Adult Probation and Parole Office as well as the testimony of Officer Stevens evidence the reliability of the confidential informant.

Thus, it was reasonable to rely on the accurate information from the confidential informant and to act on that information.

Because the search of probationer’s residence was initiated by her own probation officer based on a reasonable suspicion of a probation violation, the search of Fatina Small’s residence was lawful. Defendant’s motion to suppress evidence was properly denied. We find no abuse of the trial court’s discretion based on the foregoing substantial credible evidence in this case.

Judgment affirmed.

MR. JUSTICES HARRSION, SHEEHY, HUNT and McDON-OUGH concur.