text:
    WILLIAM GEORGE HARRIS, SR., Petitioner and Appellant, v. STATE OF MONTANA, Respondent.
    No. 88-364.
    Submitted on Briefs Sept. 29, 1988.
    Decided Nov. 15, 1988.
    765 P.2d 706.

      William George Harris, Sr., Tempe, Ariz., pro se.
    Mike Greely, Atty. Gen., Patricia J. Schaeffer, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, County Atty., Missoula, for respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This case comes on appeal from a denial of a petition for post-conviction relief by the Fourth Judicial District Court, Missoula County, the Honorable Joseph B. Gary, District Judge, sitting for the Honorable James B. Wheelis, District Judge.

The petitioner, William George Harris, Sr., was originally convicted by jury trial on two of three counts of felony theft. Because we have once reviewed this case on appeal, we will only briefly discuss the facts surrounding his original conviction. See, State v. Harris (1984), 210 Mont. 382, 682 P.2d 185.

In 1981, Carl Anderson, Doug Shuland and Thomas Michael Briggs, with the legal advice of their attorney, William George Harris, Sr., formed the Go Devil Hotshot Service Company, Inc., to provide expedited delivery service of needed parts to oil fields. Between June, 1981 and the middle of August, 1981, petitioner received approximately $21,000 from various contributors to be used on behalf of the newly formed business. Harris deposited $6,000 into a company bank account, and used approximately $9,000 to cover business expenses. The remainder of the contributions, approximately $6,000, could not be accounted for by petitioner.

On June 1, 1982, petitioner was charged with three counts of felony theft. Count I charged Harris with appropriating money owned by Carl Anderson, Joyce Anderson and Doug Shuland. Count II charged Harris with appropriating money contributed by Thomas Michael Briggs. Finally, Count III charged Harris with appropriating money loaned the company by Elsie Oliva, Joyce Anderson’s mother. Petitioner was convicted on Counts II and III. He was sentenced on June 7, 1983 to serve two concurrent five year terms, all of which were suspended except for 90 days, and placed on probation. In addition, petitioner was ordered to pay a $5,000 fine to the clerk of court and $5,000 restitution. Upon motion of petitioner, the District Court issued an order staying execution of judgment pending appeal. This Court affirmed the District Court’s conviction, rejecting petitioner’s argument that his conviction resulted from the use of perjured testimony. Harris, [210 Mont. 382,] 682 P.2d 185.

On March 7, 1985, petitioner alleges he received by U.S. Mail a large and unidentified envelope containing a document and letters indicating the State of Montana used perjurious testimony and concealed exculpatory evidence in order to obtain the original felony theft convictions. The items included photocopies of an undated, unsigned letter to former Chief Justice Haswell, a purported partnership agreement dated March 3, 1981, and eight letters. Petitioner argues these items were concealed from him during trial, resulting in a denial of due process and mandating a new trial.

On March 19, 1985, petitioner filed a petition for writ of habeas corpus in the Federal District Court in Arizona. The State of Montana responded with a motion to dismiss for failure to exhaust state remedies on claims raised by the petition. The court granted the State’s motion. An appeal to the Ninth Circuit Court of Appeals ensued, resulting in an affirmance on July 28, 1986.

A petition for post-conviction relief was filed with this Court on October 13, 1987. After a response filed by the State, this Court dismissed the petition with leave to file in the District Court. Harris did so on March 31, 1988. The matter was submitted to the lower court on briefs and affidavits pursuant to a stipulation waiving a hearing on the matter. The District Court entered its order May 11, 1988 denying relief. From this denial, the petitioner appeals. We affirm.

The standard in Montana for intentional or negligent suppression of evidence was enunciated in the case of State v. Craig (1976), 169 Mont. 150, 153, 545 P.2d 649, 651, holding:

“Only intentional or deliberate suppression of evidence is a per se violation of due process sufficient to reverse or nullify a conviction. . . Negligent or passive suppression will overturn a conviction if prejudice can be shown by the suppression.
“Generally, suppressed evidence must be material to either guilt or punishment.... In order to amount to denial of due process, negligently suppressed evidence must be vital to the defense of the accused ... To obtain a new trial, the accused must show the evidence was material and of some substantial use to him . . . The suppressed evidence must be exculpatory, i.e., would have tended to clear the accused of guilt, to vitiate a conviction. (Citations omitted.)”

Petitioner spends a large portion of his brief educating this Court on the definitions of “concealment” and “possession.” However, citations to Black’s Law and Webster’s International Dictionaries do not lend factual support to his argument. The facts indicate neither intentional nor negligent suppression of evidence. To illustrate:

Fact: the files were available to the petitioner prior to trial, as evidenced by the affidavit by the Missoula County Attorney, Robert L. Deschamps, III. Petitioner readily admits in his brief that the State turned over the balance of documents in its offices, as per their oral discovery agreement.

Fact: the letters and purported partnership agreement were documents of Go Devil Hotshot Service Company, Inc., and were made available at corporate offices at all times prior to trial. No evidence indicates the files in question were ever searched or seized by state agents.

Fact: Petitioner was aware, or should have been aware, of these documents at trial. This knowledge is evident from petitioner’s own signature on the alleged partnership agreement, purporting to authorize the appropriation of funds from which petitioner was convicted of theft charges. It is highly unlikely petitioner could have forgotten this agreement, and yet at trial, he testified no written agreement existed. No request for production of the document appears on the record, nor was testimony presented as to its loss or destruction. Now, petitioner baldly asserts it was withheld by the State. Also, seven of the eight letters were written by the petitioner to Carl Anderson.

Evidence is not withheld or suppressed if the petitioner had knowledge of the facts or circumstances, or if the facts become available to him during trial. State v. Kirkland (1979), 184 Mont. 229, 243, 602 P.2d 586, 595. While this knowledge completely dismisses petitioner’s argument as to suppression, we go one step further and examine the materiality.

The evidence could hardly be called exculpatory. The partnership agreement binds only Harris, Anderson and Shuland to the “fees earned when paid” arrangement. Petitioner was acquitted of the charge involving Anderson and Shuland. The fact Briggs later read and approved the agreement only acknowledges the partnership, it does not bind him to the terms. Nor could the agreement bind Elsie Oliva. Therefore, the counts which petitioner was convicted, Counts II and III, remain unaffected by the “newly discovered” partnership agreement. The letters, though indicating Harris did legal work for the company, do not mention the fee arrangement, nor allude to a partnership agreement. We see no factual basis for petitioner’s claimed exculpatory use of the evidence. State v. Atlas (Mont. 1986), [224 Mont. 92,] 728 P.2d 421, 43 St.Rep. 2042.

Finally, petitioner claims the lower court acted vindictive and biased in its review of his post-conviction petition. We fail to see any indication of such behavior. On the contrary, the lower court acknowledged the serious nature of petitioner’s charges. The District Court’s order and supporting memorandum thoroughly reviews the criteria to determine whether a new trial was warranted, State v. Greeno (1959), 135 Mont. 580, 342 P.2d 1052, and upon this basis, found petitioner’s charges without merit. Substantial evidence supports his position.

We affirm.

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


source: Caselaw Access Project

author: MR. JUSTICE GULBRANDSON

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. GERALD RAY ONSTAD, Defendant and Appellant.
    No. 87-564.
    Submitted on Briefs Oct. 13, 1988.
    Decided Nov. 17, 1988.
    764 P.2d 473.
    James W. Spangelo, Havre, for defendant and appellant.

      Mike Greely, Atty. Gen., Clay R. Smith, Asst. Atty. Gen., Helena, David G. Rice, County Atty., Havre, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Appellant, Gerald Roy Onstad, appeals an order of the Twelfth Judicial District Court, Hill County, reinstating an information charging Onstad with burglary and theft, and his subsequent conviction and sentence on the information. We reverse.

Onstad was arrested on December 9, 1985, for the burglary of and theft from a residence in Box Elder, Montana. An information charging him with the crimes was filed on December 12, 1985. Onstad entered a plea of not guilty to the charges on January 22, 1986. A motion to dismiss for lack of jurisdiction was filed on May 19, 1986, alleging that Onstad was an enrolled member of the Turtle Mountain Band of Chippewa Indians, that he was charged with a “major crime,” and that the crime occurred in “Indian Country” or in a “Dependent Indian Community.” For these reasons, Onstad contended jurisdiction was properly in the federal courts. A brief supporting these contentions was also filed at that time.

Shortly thereafter, the county attorney encountered appellant’s attorney in the hall of the county courthouse and informed him the response to the motion to dismiss would take more time, to which the reply was “okay.” However, no notice to this effect was made to the court and on June 3, 1986, no responding brief having been submitted, the District Court Judge found the challenge to jurisdiction well-taken and dismissed the information and the charges. The order of dismissal was filed, but through oversight, the order was not served on the attorneys.

On July 16, 1986, the county attorney filed a memo in opposition addressing the jurisdiction issue. On July 31, 1986, Onstad’s attorney filed a reply brief and on August 5, 1986, the county attorney filed a “Motion to Set Aside Order of Dismissal.” However, the time for appealing the District Court order of dismissal had expired on August 2, 1986. A hearing on the motion was held August 11, 1986, and the court granted the motion on September 10, 1986, reinstating the information.

Onstad was subsequently convicted and sentenced to five years imprisonment, with all five years suspended. The suspension of the sentence has since been revoked by the court for violation of the conditions attached to the suspension.

Appellant presents the following issues on appeal:

1. Did the District Court have jurisdiction to reinstate the information on September 10, 1986, after having dismissed it on June 3, 1986, and if so were Onstad’s double jeopardy rights violated?

2. Is the situs of the alleged crime Indian Country because of congressional action?

3. Is the situs of the alleged crime Indian Country because it is a Dependent Indian Community?

It is the appellant’s first contention that the District Court, having entered its order dismissing the information, was without jurisdiction to change the order. The District Court, with one exception, properly dismissed the information based upon the record before the court. The motion was properly made, briefed, and on its face contended a lack of jurisdiction in the District Court. Rule No. II of the Uniform District Court Rules, then in effect, provides an adverse party shall have ten days from the filing of the movant’s brief to serve and file an answer brief. Further, failure to file a brief by either party:

“[W]ithin the prescribed time shall subject [the] motion to summary ruling, . . . and such failure to file a brief by the adverse party shall be deemed an admission that in the opinion of counsel, the motion is well-taken.”

Rule No. 11(1), Montana Uniform District Court Rules. When a party allows the time for filing a brief to lapse, the Uniform District Court Rules provide the clerk shall, “on the Monday . . . next following the lapse of the time of either party for the filing of a brief, present such motion to the Court for decision.”

The same Uniform District Court Rule in part 2 provides “[e]xtensions of time for filing briefs . . . may be granted an oral application . . .” However, the court must be notified by counsel of the desire or need for an extension before one may be granted. This was not done in this case and the court properly dismissed the information.

The order dismissing the case issued on June 3, 1986, and the clerk filed the order on that date. Upon the filing of the order dismissing the information the order became a final judgment and was appealable. See State v. Enfinger (Mont. 1986), [222 Mont. 438,] 722 P.2d 1170, 43 St.Rep. 1403; State v. Wirtala (Mont. 1988), [231 Mont. 264] 752 P.2d 177, 45 St.Rep. 596; and State v. Spencer (1916), 37 S.D. 219, 157 N.W. 662.

Sections 46-13-106 and 46-13-201, MCA, deal with the effect granting a motion to dismiss has on an information. Section 46-13-106, MCA, provides:

“If the court directs the action to be dismissed, the defendant must, if in custody, be discharged therefrom or, if admitted to bail, have his bail exonerated or money deposited instead of bail refunded to him. However, if the court grants a motion to dismiss based on a defect in the institution of the prosecution or in the indictment, information, or complaint, or if it appears at any time before judgment that a mistake has been made in charging the proper offense, the court may also order that the defendant be held in custody or that his bail be continued for a specified time pending the filing of a new complaint, indictment, or information.”

This statute implies that the dismissed information is no longer effective against the defendant, though the court may retain custody over the defendant pending the filing of a new information. The statute does not provide for reinstatement of the dismissed information.

Therefore, a valid information did not exist under which the defendant could be tried, and defendant’s subsequent trial, conviction and sentence under the reinstated information is invalid.

We note the State contends the court could reinstate the information as a nunc pro tunc correction of the record. While a District Court may correct clerical errors to make the record speak the truth as to what was actually decided, the court may not change what was originally intended. State v. Owens (Mont. 1988), [230 Mont. 135,] 748 P.2d 473, 474, 45 St.Rep. 89, 91. The reinstatement of the information was a reversal of the court’s decision on the motion to dismiss and is not permissible.

It is the general rule, that the granting of a motion to dismiss for defects in the indictment, information or complaint does not bar the prosecution from instituting a new complaint, indictment or information on the same offense. Section 46-13-106, MCA. However, as this Court has equated a motion for dismissal under Section 46-13-106, MCA, to a “dismissal at instance of court or prosecution” under 46-13-201, MCA, Subsection (3) of that section will apply. State v. Roll (1983), 206 Mont. 259, 670 P.2d 566, 568. Section 46-13-201(3), MCA, provides that “dismissal of an action as provided in this chapter is a bar to any other prosecution for the same offense if it is a misdemeanor, but it is not a bar if the offense is a felony.”

Reversed. ■

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


author: MR. JUSTICE WEBER MR. JUSTICE SHEEHY,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. SCOTT CLYDE MAGRUDER, Defendant and Appellant.
    No. 88-156.
    Submitted on Briefs Sept. 1, 1988.
    Decided Nov. 17, 1988.
    765 P.2d 716.

      MR. JUSTICE SHEEHY filed a dissenting opinion in which MR. JUSTICE HUNT joined.
    Arthur J. Thompson, Thompson & Sessions, Billings, for defendant and appellant.
    Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, Harold F. Hanser, County Atty., Billings, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

This case arises out of the District Court for the Thirteenth Judicial District, Yellowstone County. Mr. Magruder was convicted of felony assault and mitigated deliberate homicide, in a jury trial. He appeals. We affirm.

The issues are:

1. Did the District Court err by allowing the testimony of the victim’s daughter regarding the telephone call from Mr. Magruder to the victim?

2. Were Mr. Magruder’s proximate cause instructions properly rejected?

Mr. Magruder and the victim had become acquainted through a woman over whom they had a continuing disagreement. On the evening of June 4, 1987, Mr. Magruder placed a telephone call to the victim. The victim’s daughter, who originally answered the phone, testified at trial that her father seemed worried after the conversation and told her that he’d better be “packing a piece” because Mr. Magruder would be packing a piece and would be there later.

Two acquaintances of Mr. Magruder testified that they saw him driving his truck about 10 p.m. that evening. They both testified that Mr. Magruder’s truck was weaving on the road and up onto the curb. The male acquaintance testified that after he offered to drive Mr. Magruder to a bar, Mr. Magruder pointed a gun at him from his truck and followed him for several blocks. The second acquaintance testified that she saw a gun pointed at them and that she feared Mr. Magruder would shoot them.

Several persons saw Mr. Magruder park his truck near the apartment where the victim and the woman lived. Mr. Magruder got out of his truck and attempted to buy cigarettes from one witness across the street. Mr. Magruder then got back into his truck. As he did so, the victim drove up. The victim walked quickly to the driver’s side of Mr. Magruder’s truck, where he spoke with Mr. Magruder for a few minutes. Several witnesses heard a shot fired, after which Mr. Magruder drove away. The victim lay on the ground dying from a shotgun blast to his abdomen. He had a gun tucked in the waistband of his pants. Shortly thereafter, Mr. Magruder was arrested and his shotgun was recovered.

Mr. Magruder testified in his own behalf. He stated that the victim approached his truck and asked him to step out, then grabbed his shotgun and was shot in the ensuing struggle over the gun. The jury convicted Mr. Magruder of felony assault as to the two acquaintances who offered him a ride and of mitigated deliberate homicide as to the victim. This appeal involves only the mitigated deliberate homicide conviction.

I

Did the District Court err by allowing the testimony of the victim’s daughter regarding the telephone call from Mr. Magruder to the victim?

The defense objects to the following testimony of the victim’s daughter:

“Q. Tell us how your father appeared when the phone call ended, please.
“A. He appeared very worried, very upset.
“Q. Did your father tell you the substance of the telephone call?
“MR. ADAMS: Object again on the grounds it is hearsay.
“THE COURT: The objection is overruled.
“A. He told me that Scott had told him —
“Q. Just answer ‘yes or no’ first. Did he tell you?
“A. Yes, he did.
“Q. And when did he do that?
“A. When he hung up the phone.
“Q. So, right after the telephone call?
“A. Yes, right after the telephone call.
“Q. And he was very nervous and concerned?
“A. He was very worried, yes.
“Q. What did he tell you the phone call was about.
“A. Well, I had to ask him a few times. And he told me that Scott, that he was under the impression that Tina was there with Scott, and he was, and he said that Scott told him that he wasn’t trying to take his woman away from him, and that if there was any problems that they would settle their differences. And my dad said that he told him there was no problem. And he told him that he would be down later to settle their differences, and that he better be packing a piece because Scott was packing a piece. ,
“Q. It was your first statement that Scott said he would be down to settle their differences, meaning Scott Magruder?
“A. Yes.
“Q. And that he, Scott Magruder, would be packing a piece?
“A. Yes.
“Q. And that your father had better be packing one?
“A. Yes.
“Q. Did your father continue to seem worried?
“A. Yes, he did.”

The defense argues that the testimony about what the victim said and about what the victim said Mr. Magruder said is inadmissible hearsay. It asserts that the lower court erred in admitting this testimony.

Hearsay is a statement, not made by the declarant while testifying at the trial or hearing, which is offered in evidence to prove the truth of the matter asserted. Rule 801(c), M.R.Evid. Generally, hearsay is not admissible into evidence. Rule 802, M.R.Evid. However, a number of exceptions to this general rule are set forth in Rules 803 and 804, M.R.Evid. In review on appeal, determinations as to the admissibility of evidence will not be reversed unless the trial judge’s ruling represents an abuse of discretion. State v. Caryl (1975), 168 Mont. 414, 431, 543 P.2d 389, 398-99.

The District Court instructed the jury that the above testimony was

“not offered to prove the truth of the matter asserted, but rather to show the victim’s then existing state of mind. You are to consider the statements only in regard to the victim’s state of mind and for no other purpose.”

The purpose set forth by the judge suggests that the testimony as to what the victim said would be admissible under the exception set forth at Rule 803(3), M.R.Evid.:

“Then-existing mental, emotional, or physical condition. A statement of the declarant’s then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed.”

The case which the dissent states parallels the facts here, United States v. Brown (D.C.Cir. 1973), 490 F.2d 758, differs from the present case in an important respect. In that case, the defendant raised no claim of self-defense. Brown, 490 F.2d at 780. The court in Brown acknowledged that such a defense would make a difference.

“The threshold requirement of admissibility of such hearsay statements of fear of defendant in homicide cases is some substantial degree of relevance to a material issue in the case. While there are undoubtedly a number of possible situations in which such statements may be relevant, the courts have developed three rather well-defined categories in which the need for such statements overcomes almost any possible prejudice. The most common of these involves defendant’s claim of self-defense as justification for the killing. When such a defense is asserted, a defendant’s assertion that the deceased first attacked him may be rebutted by the extrajudicial declarations of the victim that he feared the defendant, thus rendering it unlikely that the deceased was in fact the aggressor in the first instance.”

Brown, 490 F.2d at 767. At the first omnibus hearing, Mr. Magruder’s attorney stated that self-defense would be raised. At trial, defendant’s testimony was that the shooting occurred as the victim pulled on the muzzle of his gun. The jury was instructed on self-defense. Brown thus provides reasoning to allow the victim’s statements into evidence in the present case.

Under the District Court’s instruction, the testimony about what Mr. Magruder said to the victim was not offered to prove its truthfulness (that Mr. Magruder really would be carrying a gun), but only to show the victim’s state of mind. Under that instruction, then, the statement of Mr. Magruder to the victim was not hearsay because it was not offered in evidence to prove the truth of the matter asserted.

We hold that the District Court did not abuse its discretion in admitting the daughter’s testimony for the purpose of showing the victim’s state of mind.

II

Were Mr. Magruder’s proximate cause instructions properly rejected?

Mr. Magruder offered four jury instructions on proximate causation. He argues that when the court refused to give those instructions, he was deprived of the opportunity for the jury to consider his theory that the victim’s death was a result of the victim’s own negligence.

Proximate cause is not a term which is generally used in criminal jury instructions under Montana’s Criminal Code of 1973. The Criminal Law Commission Comment to Section 45-2-201, MCA, which defines “cause” for purposes of the criminal code, states that problems created by concepts of proximate cause “should be faced as problems of the culpability required for conviction and not as problems of causation.” The Court is not able to envision a case under our present criminal code in which a proximate cause instruction would be appropriate.

If the instructions given to the jury fully and fairly convey the elements of criminal homicide, this Court must consider that the jury has been properly instructed. State v. Collins (1978), 178 Mont. 36, 45, 582 P.2d 1179, 1184. Instruction No. 5 given in this case stated that each element of the offense must be proven beyond a reasonable doubt. That instruction also defined “act,” “purposely,” “knowingly,” and “negligently.” Instruction No. 10 set forth the statutory definitions of deliberate homicide, mitigated deliberate homicide, and negligent homicide. Instructions No. 12, 13, and 14 set forth the elements of deliberate, mitigated deliberate, and negligent homicide. Instruction No. 24 stated that the jury should first consider whether the elements of deliberate homicide had been proven. If not, they should consider whether mitigated deliberate homicide had been proven. Finally, if the elements of mitigated deliberate homicide had not been proven, the jury was to consider the issue of negligent homicide. Since the jury found Mr. Magruder guilty of mitigated deliberate homicide, it never reached consideration of negligent homicide.

We conclude that the instructions given the jury in this case fully and fairly conveyed the elements of criminal homicide. We hold that the refusal of Mr. Magruder’s proposed instructions on proximate cause was not error.

Affirmed.

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

MR. JUSTICE SHEEHY,

dissenting:

I dissent from the approval of the hearsay statement which was admitted to evidence in this case.

The majority’s handling of the hearsay problem skims too lightly over the very problematic nature of the testimony.

Professor Moore reports that when the federal counterpart of Rule 803(3) came before the House, it was approved under the following limitation:

“Rule 803(3) was approved in the form submitted by the court to Congress. However, the Committee intends that the rule be construed to limit the doctrine of Mutual Life Insurance Company v. Hillmon (1892), 145 U.S. 285, 295-300 [12 S.Ct. 909, 912-914, 36 L.Ed. 706,] so as to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person.”

11 Moore’s Federal Practice paragraph 803(3)[2] (2d ed. 1948) at VIII-80.

In Hillmon, the United States Supreme Court held letters from one Walters expressing intent to travel with Hillmon were admissible as circumstantial proof both that Walters went and that he went with Hillmon. The report of the House Committee indicates the intent of that Committee that the ruling of Hillmon was the limit of the bounds as far as admitting hearsay was concerned.

Like declarations purporting to show the victim’s state of mind have been rejected. In United States v. Kaplan (2d Cir. 1974), 510 F.2d 606, a conviction for possession or sale of narcotics was reversed because the Drug Enforcement Agent was allowed to testify that a declarant out of court had spoken of the defendant as “his connection.” Despite a careful instruction limiting this testimony to proof of the agent’s state of mind, the court of appeals held the declaration too prejudicial to be admitted.

In United States v. Brown (D.C. Cir. 1973), 490 F.2d 758, there are facts that parallel exactly what occurred in the case at bar. In Brown, the testimony by the wife of a murdered man that her husband had said he feared the defendant might kill him was held admissible under Rule 803(3) to prove the victim’s state of mind, but excluded nonetheless as too prejudicial, under Rule 403.

The majority discounts the precedential authority of United States v. Brown, supra, pointing out that testimony of an oral statement such as this case concerns is admissible where the defendant relies on self-defense. Two facets of this case belie that distinction. First, Magruder did not rely on self-defense; rather, he based his defense upon accidental discharge of a firearm. Second, the facts strongly show that the victim himself was the aggressor in that he drove his vehicle next to Magruder’s truck, and then, “packing a piece,” he went to the driver’s side of Magruder’s vehicle. The only remaining testimony of what occurred there is from Magruder himself who stated that the victim grabbed his shotgun which was discharged in the ensuing struggle over the gun.

Now, it is also true that where the defense is that of accidental discharge, testimony of oral statements regarding the victim’s state of mind are admissible, if the state of mind of the victim is an issue. United States v. Brown, 490 F.2d 758, 767. However, the question then becomes even if the evidence is relevant, should it not be refused because of the overwhelming prejudicial effect as against the defendant? The admissibility of these kinds of statements is one of the most vexing problems facing courts in these types of cases, and since both the majority here and this writer, in dissent, rely on United States v. Brown, it is recommended to the reader that substantial study be given to the Brown case. In it, there is a rather elaborate dissection of the problems involved, and of their proper resolution. It is especially true in Brown that the court set out the reasons why a limiting instruction which tells the jury that the testimony can only be used to determine the state of mind of the victim is in most cases impossible to follow.

For example:

“Quite a number of courts have confronted facts similar to those here involving hearsay statements made by the victim of a homicide which inferentially implicate the defendant. Such statements by the victim often include previous threats made by the defendant towards the victim, narrations of past incidents of violence on the part of the defendant or general verbalizations of fear of the defendant. While such statements are admittedly of some value in presenting to the jury a complete picture of all the facts and circumstances surrounding the homicide, it is generally agreed that their admissibility must be determined by a careful balancing of their probative value against their prejudicial effect. Courts have recognized that such statements are fraught with inherent dangers and require the imposition of rigid limitations. The principal danger is that the jury will consider the victim’s statement of fear as somehow reflecting on defendant’s state of mind rather than the victim’s — i.e. as a true indication of defendant’s intentions, actions or culpability. Such inferences are highly improper and where there is a strong likelihood that they will be drawn by the jury, the danger of injurious prejudice is particularly evident. (Emphasis in original).”

490 F.2d at 765, 766.

It is on this point of exclusion even when the testimony is relevant, the court in United States v. Brown speaks out strongly:

“There are a number of other cases which have allowed in testimony of this type on the basis of various errors in reasoning or simple lack of concern. One of the principal problems which brings this about is a court’s understandable eagerness to find an ‘easy’ rule, simple in operation. This leads to a tendency to adopt a mechanistic approach devoid of analysis. For example, in State v. Radabaugh, 93 Idaho 727, 471 P.2d 582 (1970), the Idaho Supreme Court, dealing with a hearsay declaration of fear on the part of the deceased victim, simply identified the statement as probative on the issue of the state of mind of the declarant, referred to the fact that a limiting instruction had been given and then pronounced it admissible in a conclusory and offhanded manner. Such a simplistic approach sidesteps any preliminary determination of relevance and does not begin to weigh the possible prejudice contained in such statements.”

490 F.2d at 772.

The real problem with the approved testimony in this case is that under cover of showing the victim’s state of mind, the testimony points instead to the victim’s declaration of Magruder’s state of mind. The daughter’s testimony in this case was hearsay since she received it from the victim, and because what the victim reported to her was a further hearsay statement from Magruder, the entire testimony consisted of hearsay within hearsay. Under Rule 805, hearsay included within hearsay is not admissible unless each part of the combined statement conforms with the exceptions to the hearsay rule as provided in Rules of Evidence. Here, Scott Magruder’s reported statement to the victim cannot be brought within any exception to the hearsay rule.

The extremely prejudicial effect of the testimony could not be cured by any instruction of the District Court to the jury. This is a case for the application of the “hot poker” rule, that is, that the effect of being rammed by a hot poker is not cured by the withdrawal of the poker. As Justice Cardozo said in Shepard v. United States (1933), 290 U.S. 96, 104, 54 S.Ct. 22, 25, 78 L.Ed. 196:

“. . .It will not do to say that the jury might accept the declarations for any light that they may cast upon the existence of a vital urge, and reject them to the extent that they charged the death to someone else. Discrimination so subtle is a feat beyond the compass of ordinary minds. The reverberating clang of those accusatory words would drown all weaker sounds. It is for ordinary minds, and not for psychoanalysts, that our rules of evidence are framed . . .”

I would hold the admission of the hearsay evidence in this case as reversible error, and remand for a new trial.

MR. JUSTICE HUNT concurs in the dissent of MR. JUSTICE SHEEHY.


author: MR. JUSTICE WEBER

text:
    In re the MARRIAGE OF DAVID L. PURDY, Petitioner and Appellant, and MARCIA E. PURDY, Defendant and Respondent.
    No. 88-176.
    Submitted on Briefs Oct. 6, 1988.
    Decided Nov. 7, 1988.
    Rehearing Denied Dec. 16, 1988.
    764 P.2d 857.

      Michael Sol, Sol & Wolfe, Missoula, for petitioner and appellant.
    Paulette Ferguson, Missoula, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The husband appeals from the property settlement and maintenance award in this action for legal separation filed in the District Court for the Fourth Judicial District, Missoula County. We affirm.

The issues are:

1. Did the District Court err in failing to determine the value of marital property?

2. Did the District Court err in its distribution of marital property?

3. Was there error in the award of maintenance?

4. Did the District Court err in failing to determine and assign marital debts?

The parties married in 1960. The three children of the marriage have all reached the age of majority. The wife, who was 49 years old at the time of the proceeding before the District Court, has been a homemaker throughout the marriage. Husband, 46 years of age, has worked as a salesman, most recently in real estate. In 1981, he stopped working and left the family home. Since 1981, the parties have supported themselves primarily on the proceeds of their respective parents’ estates. Husband has engaged in some stock option trading, but testified that he lost money overall in that venture.

Both parties testified at the hearing before the District Court that during the marriage, they acquired antiques, collectibles, and guns. Both received substantial ($100,000 ) inheritances from their parents within the last several years. Their assets also include five automobiles, the family home in Florence, Montana, a rental property in Missoula, Montana, and a home purchased by the husband in Bellingham, Washington.

The court awarded the wife the family home and the Missoula rental property. It awarded the husband the home in Bellingham, Washington. The antiques, collectibles, and guns were divided according to the parties’ temporary stipulation entered prior to the hearing. The court awarded the 1969 Lincoln, 1974 Cadillac, and 1978 Corvette to the wife and the 1974 Jeep Wagoneer and 1974 Ford Mustang to the husband. It also ordered the husband to pay the wife $300 per month in maintenance until her death.

I

Did the District Court err in failing to determine the value of marital property?

The husband argues that it was error for the District Court to adopt the wife’s proposed findings and conclusions “almost verbatim” and to omit findings on whether the parties’ inheritances from their parents were part of the marital estate. He also contends the court erred by distributing the antiques, collectibles, and guns according to the pre-hearing stipulation without assigning values to the various items.

Adoption of the wife’s proposed findings and conclusions in itself is not grounds for reversal. We have stated that it is not error for a court to adopt a party’s proposed findings and conclusions if they are sufficiently comprehensive and pertinent to the issues to provide a basis for the decision and are supported by the evidence. In re Marriage of Jacobson (Mont. 1987), [228 Mont. 458,] 743 P.2d 1025, 1029, 44 St.Rep. 1678, 1683.

The court’s treatment of the inheritances reflects the parties’ division; he kept his and she kept hers. Neither party suggested different disposition of those amounts in the proposed findings and conclusions.

Both parties’ proposed findings and conclusions included provisions adopting the temporary distribution of personal property, with the exception that the husband proposed that some disputed pistols and lamps should be awarded to him. The wife testified at trial that she felt she should have the pistols and lamps. According to the parties’ stipulation, all unlisted property was to go to the wife. In adopting the stipulation, the lower court implicitly adopted that provision. We conclude that it was not necessary in this case that the court set forth in its findings a statement of the total value of the personal property. We hold that there is no error in the absence of such a finding.

II

Did the District Court err in its distribution of marital property?

The husband claims that the distribution of marital property was inequitable, was based in part on hearsay, and omitted consideration of his depletion or loss of inheritance. In considering this issue, the lack of verifiable information on the husband’s financial situation weighs heavily against the husband.

The lower court found that, “Husband’s testimony was characterized by incomplete and incorrect answers about his financial affairs.” In his testimony before the court, the husband acknowledged holding certain bank accounts only in response to specific inquiries about them. He testified that he did not file income tax returns in 1984, 1985, 1986, or 1987, and did not offer tax returns as evidence. He did not present any probate records or other written record of his inheritance from his parents. He testified that he has suffered substantial losses in stock option trading, but failed to present evidence summarizing his stock market activities, although it appears that such a summary would have been readily obtainable. The wife listed six different names and addresses the husband used in the past few years. In light of all this, we conclude that the admission of a copy of an options trading account financial data form of the husband’s, submitted by the wife, was not error. On that form, his net worth was stated as $500,000 and his yearly income as $65,000. Under the circumstances here presented, we hold that the husband has not shown that the distribution of marital property was inequitable.

Ill

Was there error in the award of maintenance?

The husband argues that the court erred in finding that the wife could not work and that he could. He also claims error in the amount of maintenance awarded by the court.

Section 40-4-203, MCA, governs the award of maintenance:

“(1) In a proceeding for . . . legal separation . . . the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
“(a) lacks sufficient property to provide for his reasonable needs; and
“(b) is unable to support himself through appropriate employment
“(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant facts including:
“(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently . . .
“(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
“(c) the standard of living established during the marriage;
“(d) the duration of the marriage;
“(e) the age and the physical and emotional condition of the spouse seeking maintenance; and
“(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.”

The court found that the husband’s health is good and that he is actively engaged in stock option trading and plans to resume his career as a real estate agent. It found that the wife’s income from investment of her inheritance could be expected to be $1,000 per month and that her monthly expenses were $1,300. It further found that this income

“is not enough to enable her to live at a level that is reasonable given the standard of living established during the marriage. Her medical problems preclude employment. After many years of marriage, Wife is unable to work while Husband is actively engaging in stock option trading and plans to resume his formerly successful career as a real estate agent.”

Evidence supporting the court’s maintenance award included the testimony that the husband had worked outside the home throughout the parties’ marriage and up until the last few years and the wife had not. Also, the wife suffers from systemic lupus erythematosus, which she testified affects the mobility of her joints. The wife testified that the husband had told her that he expected to be working within 6 months. The husband testified that he planned on taking the real estate examination in Washington. The wife testified that her monthly expenses were $919. This did not include clothing expenses and a yearly mortgage payment of $2,500. We conclude that the District Court has addressed the elements necessary under Section 40-4-203, MCA, and that the maintenance award is not clearly erroneous.

IV

Did the District Court err in failing to determine and assign marital debts?

Neither party submitted any proposed findings or conclusions on the marital debts which the husband now states were not addressed. The husband did testify that there was approximately $3,000 on the Mastercard bill and approximately $300 on the Conoco bill. He did not offer copies of statements from either creditor to support those claims, nor did he offer any evidence in support of his claim that the wife had incurred the bills. In view of the absence of support in the record for these claims, we conclude the District Court was not required to make findings or conclusions on them.

Affirmed.

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


author: MR. JUSTICE McDONOUGH MR. JUSTICE SHEEHY,

text:
    DANIEL S. BURNS, Plaintiff and Appellant, v. UNDERWRITERS ADJUSTING COMPANY, an Illinois corporation, and Continental Insurance Company, a New Hampshire corporation, Defendants and Respondents.
    No. 88-200.
    Submitted on Briefs Aug. 4, 1988.
    Decided Nov. 7, 1988.
    765 P.2d 712.
    Calvin J. Stacey, Keefer, Roybal, Hanson & Stacey, Billings, for plaintiff and appellant.
    Herbert I. Pierce, III, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, for defendants and respondents.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Appellant Burns appeals from the order of the District Court of the Thirteenth Judicial District granting summary judgment to respondents Underwriters Adjusting Company and Continental Insurance Company (Underwriters and Continental). We affirm.

The issue is whether Underwriters and Continental may be sued for counts based on their failure to defend their insured, Troy Zeiler. Burns sued Zeiler alleging that Zeiler negligently struck Burns. Underwriters and Continental refused to defend the suit because their investigation revealed that the policy excluded coverage for the injury inflicted on Burns by Zeiler.

The facts revealed to Underwriters and Continental prior to the suit against Zeiler were recorded by the lower court as follows:

“That on or about June 24, 1985, the Defendants received notice of the Burns claim and undertook an investigation, including obtaining a recorded statement from the insured, Troy Zeiler, which led the adjuster to believe that the actions of Troy Zeiler were not in self-defense but were intentional; on December 4, 1985, Underwriters Adjusting Company sent a Reservation of Rights letter to Zeiler advising him that serious questions existed as to the coverage; on January 13, 1986, Underwriters Adjusting Company learned that the insured, Troy Zeiler, pled guilty to felony aggravated assault criminal charge, arising out of the same incident; that his sentence was deferred for six years conditioned upon his paying $5,554.00 for the victim’s medical expenses; on February 4 and February 11, additional Reservation of Rights letters were sent to the insured advising that there was no coverage for the acts of the insured; . . .”

Facts in the record also reveal that prior to the filing of the cause at issue here, Underwriters and Continental informed Burns’s attorney that no coverage existed. Burns filed the claim for Zeiler’s “negligence” on March 12, 1986. Zeiler did not defend the suit, and the District Court entered judgment for Burns. Zeiler then assigned his claims against Underwriters and Continental to Burns, and Burns, now assuming Zeiler’s rights as an insured, initiated the law suit at issue. The policy covering Zeiler excluded from coverage:

“bodily injury or property damage that is expected or intended by a Covered Person except for bodily injury or property damage that results from the reasonable use of force to protect people or property.”

The facts showed that Zeiler intentionally struck Burns, and that Zeiler could not claim self defense.

The District Court concluded that Underwriters and Continental had no duty to defend or indemnify Zeiler. To support its decision, the lower court cited Mutual Service Casualty Ins. Co. v. McGehee (Mont. 1985), [219 Mont. 304,] 711 P.2d 826, 42 St.Rep. 2038 (no duty to indemnify under similar facts and almost identical policy language), and United States Fidelity & Guaranty Co. v. Rae (Mont. 1984), [212 Mont. 450,] 688 P.2d 1246, 41 St.Rep. 1857 (if insurer has no duty to indemnify the insured, there is no duty to defend). We agree with the District Court that no material facts exist as to duty to indemnify. The undisputed facts undeniably show that Zeiler intentionally struck Burns without justification. We also agree with the lower court that McGehee controls and mandates the conclusion that there was no duty to defend.

Burns argues, however, that the lower court should have applied Northwestern National Casualty Company v. Phalen (1979), 182 Mont. 448, 597 P.2d 720, and similar cases holding that where the pleadings allege a cause which fits within policy coverage, a duty to defend arises. In particular, Burns argues that because his complaint alleges negligence, and because the policy covers negligence, Underwriters and Continental had a duty to defend. We disagree.

We hold here that Phalen does not cover every factual situation arising from an insurance company’s alleged failure to defend. As argued by respondents, the proper focus of inquiry is the acts giving rise to coverage, not the language of the complaint. See 14 G. Couch, Couch on Insurance 2d Section 51:50 (rev. ed. 1982). The cases relied on by Burns are distinguishable from the present case in that the facts supporting the allegations in the pleadings arguably gave rise to coverage. See, e.g., Phalen, 597 P.2d at 726. The facts established in this case clearly showed that the policy excluded coverage for the injury suffered by Burns. Thus, Rae controls over Phalen because Burns has been unable to come forward with facts demonstrating that coverage arguably existed. Rae, 688 P.2d at 1251.

In regard to Burns’s argument that the duty to defend was established prior to the initiation of this action, this Court takes the opportunity to make the following observation. Rule 11, M.R.Civ. P., requires that pleadings meet the following requirements: they must be formed after reasonable inquiry; they must be warranted by existing law or a good faith argument for an extension, modification, or reversal of existing law; and they must not be interposed for any improper purpose. The rule that insurers may be required to defend suits based on allegations in pleadings must be read with the requirements of Rule 11. As stated by the Supreme Court of Minnesota in a similar duty to defend suit:

“To hold otherwise is to invite undercover deals, lack of candor, and manipulation of the tort pleadings as a device for involving an insurer who could not otherwise be involved.”

F. & M. State Bank v. St. Paul Fire & Marine (1976), 309 Minn. 14, 242 N.W.2d 840, 844 n. 7. We refuse to find the creation of the duty on the basis of the pleadings made in this case.

Affirmed.

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

MR. JUSTICE SHEEHY,

dissenting:

In a properly pleaded case, a trial court could have concluded that under the facts, the injuries inflicted by Zeiler against Burns were intentional and that therefore the policy of insurance under which Zeiler was covered did not apply, because it did not cover intentional acts. The difficulty with that concept in this case is that the insurer, when Zeiler was sued by Burns, unilaterally decided that it did not have to defend Zeiler. The insurance company made that decision in the face of the fact that the action against Zeiler alleged that Zeiler had negligently inflicted injuries upon Burns. Zeiler made demand upon the insurer to defend him in the action brought by Burns, and the insurer refused to tender a defense. The result was that a default judgment was entered against Zeiler on grounds that he had negligently inflicted personal injuries upon Burns. Negligent injuries caused by Zeiler are covered under the policy.

The duty of an insurance company to defend its insured is determined by the allegations of the complaint and the language of the insurance policy. We said in Atcheson v. Safeco Insurance Co. (1974), 165 Mont. 239, 527 P.2d 549, 552:

“It is to the allegations of the Alaskan complaint that we look to determine whether or not there is a duty to defend. The appellant has a duty to defend where the complaint sets forth facts which are a part of the covered risk. The rule on the duty to defend is set forth in 50 A.L.R.2d 506-7:
“ ‘Where a complaint alleges facts which represent a risk outside the coverage of the policy but also avers facts which, if proved, represent a risk covered, the insurer is under a duty to defend . . ”

In McAlear v. St. Paul Ins. Cos. (1972), 158 Mont. 452, 493 P.2d 331, we held again that the allegations of the complaint determined whether the insurer is required to defend the action brought against the insured. In McAlear, however, the policy excluded from coverage injury to or destruction of tangible property, and the complaint in McAlear’s case alleged injury to personal property which was outside the coverage. Because the allegations of the complaint were not sufficient to bring the complaint within the insurance coverage, we agreed that the insurer had no duty to defend. That case, however, should not be stretched, nor those following it, to indicate that an insurer may make a unilateral decision not to defend when the allegations of the complaint against the insured, taken as a whole, are fully within the coverage provided by the insurer.

When a complaint filed against a putative insured contains allegations which, if sustained, would be within the coverage, even though the company may have extrinsic evidence that such is not the case, it does not have the right to refuse to defend the putative insured at that point. Its duty is to act as set forth in Aetna Casualty and Surety Company v. Coronet Insurance Company (1976), 44 Ill.App.3d 744, 3 Ill.Dec. 371, 358 N.E.2d 914, 917:

“. . . As shown by these cases, in Illinois, the insurer is obligated to defend an action brought against a putative insured where the complaint in that action sets forth a situation which would potentially be covered by the policy. Unless the complaint alleges facts, which, if true, would exclude coverage, the potentiality of coverage is present and the insurer has a duty to defend. Underlying this rule is the principle that the duty to defend is broader than the duty to pay. If in a case there is a potential coverage but the insurer believes that the insurer has a valid exclusionary coverage defense then the insurer must: (1) secure a declaratory judgment of its rights while defending the potential insured under a reservation of rights, or (2) defend the potential insured under a reservation of rights and adjudicate its coverage in a supplemental suit. (Citing authority.) In such a case, where the insurer fails to take either course of action, its failure to defend is unjustified and in a subsequent action by the insured against the insurer, it will be estopped from raising exclusionary defenses. (Emphasis added.)”

Our prior case of Mutual Service Cas. Ins. Co. v. McGehee (Mont. 1985), [219 Mont. 304,] 711 P.2d 826, 42 St.Rep. 2038, is not applicable in this case. Mutual Service Casualty had at least taken the proper steps of seeking a declaratory judgment as to its duty to defend. Here, Underwriters Adjusting Company and Continental Insurance Company took no such steps. The result is that this Court is in the anomalous position of holding that the insurer had no duty to defend, when a default judgment has been entered against its putative insured, based on negligence.

In U.S. Fidelity and Guaranty Co. v. Rae Volunteer Fire Company (Mont. 1984), [212 Mont. 450] 688 P.2d 1246, 41 St.Rep. 1857, the insurer also properly proceeded by seeking a declaratory judgment as to its obligations under the liability insurance policy it had issued.

In like manner, in Reliance Ins. Co. v. Fisher and Poeppel (1974), 164 Mont. 278, 521 P.2d 193, the insurer brought a declaratory judgment action, where it was held that if the insurer would have no obligation to indemnify the insured then it had no contractual obligation to afford a defense.

The point of these cases is that an insurer, if it has a valid exclusionary defense based on its policy provisions, but the allegations of the complaint against its putative insured include potential liability, the insurer, to protect itself, must proceed to seek a declaratory judgment or otherwise begin a supplemental suit to determine the issue of coverage before judgment is entered against its putative insured, and to proceed under reservation of rights.

Our holding in Northwestern National Casualty Co. v. Phalen (1979), 182 Mont. 448, 597 P.2d 720, is entirely outside the issues involved in this case. In Phalen, the insurer properly brought a declaratory judgment to determine whether it owed the defendant coverage under its policy of insurance. The holding in Phalen was that there was a substantial issue as to the intention of the insured at the time of the incident involved, and until that was determined as a matter of fact, the insurer had a duty to not only defend the action, but to cover the liability if the trier of the fact brought the incident within the policy coverage. That is not the situation facing us in this case. Here the insurer did nothing, although demand was made upon it to defend its insured in an action where the complaint stated facts potentially within coverage. The decision of the majority in this case takes Montana out of the mainstream of American decisions on this point, that where the complaint alleges facts potentially within the coverage, the duty of the insured is to defend, and that if it feels its policy does not apply, it must bring a separate or supplemental action to determine the issue of coverage.

As to the veiled threat of imposing sanctions under Rule 11 against the plaintiff’s attorney in this case, that is unnecessary and entirely uncalled for. The plaintiff’s attorney was entitled to rely on the commonly accepted rule of law that the failure of the liability insurer to defend a suit against his insured would estop it from asserting any defense as to payment based on noncoverage. It was said in Sims v. Illinois National Casualty Co. (1963), 43 Ill.App.2d 184, 193 N.E.2d 123, 126:

“ ‘An insurer’s duty to defend an action against the insured is measured, in the first instance, by the allegations in the plaintiff’s pleadings, and if such pleadings state facts bringing the injury within the coverage of the policy, the insurer must defend, irrespective of the insured’s ultimate liability to the plaintiff.’
“Thus, according to the foregoing, the generally recognized doctrine is that the insurer is under a duty to defend the suit against an insured where the petition or complaint in such suit alleges a state of facts within the coverage of the policy. And while there is some conflict of authority, the majority of decisions of the courts which have passed on the question adhere to the general rule even though the insurer’s investigation discloses a conflict between the allegations of the complaint and the actual facts as known to or ascertainable by the insurer.”

Again, on page 193 N.E.2d at 129:

“Thus, while the statement of the general rule in Am.Jur.2nd Automobile Insurance Sec. 167, supra, and the language of the court in the Rom case may at first blush appear to be confusing, what is really meant is that the insurer has no right to insist that the insured be bound by the provisions of the insurance contract inuring to its benefit, i.e., the ‘Exclusions’ provisions, when it has already breached the contract by violating the provision inuring to the benefit of the insured, i.e., the defense provisions. In this sense, it may properly be said to be estopped.”

Under the complaint against Zeiler, the insurer had a clear duty to defend Zeiler in the case. If it had an exclusionary defense, it had a further clear duty to proceed either under a reservation of rights or to seek a declaratory judgment or a supplemental decision that no insurance coverage was involved. This, Underwriters failed completely to do. It made the decision, instead of a court, as to whether its policy applied. In that situation, it is collaterally estopped.

The reference of the majority to Rule 11, and its application in cases where the insurer has a duty to defend, is particularly inappropriate. The proper place, in fact the only place, for a determination of a Rule 11 sanction is in the original action where it is contended that the attorney violated Rule 11. In this case, the proper place for application of Rule 11 was in the original action, the action in which the insurer deigned not to appear. Moreover, the remedy for a violation under which Rule 11 is applicable is an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney fee. Taking away a party’s cause of action is not a remedy contemplated by Rule 11. The resort of the majority to Rule 11 in this case so as to justify a result contrary to all the decided cases shows little understanding of how and when Rule 11 is to be applied.

MR. JUSTICE HUNT concurs in the dissent of MR. JUSTICE SHEEHY.


author: MR. JUSTICE SHEEHY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DANIEL EVJEN, Defendant and Appellant.
    No. 88-226.
    Submitted on Briefs Aug. 4, 1988.
    Decided Nov. 17, 1988.
    765 P.2d 708.
    K.M. Bridenstine, Poison, for defendant and appellant.

      Mike Greely, Atty. Gen., Robert F.W. Smith, Asst. Atty. Gen., Helena, Larry Nistler, Co. Atty., Poison, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Daniel Evjen appeals his felony conviction in the District Court, Twentieth Judicial District, Lake County, of criminal possession of drugs with intent to sell on the grounds that the District Court erred in not suppressing evidence seized at the time of his arrest. On his conviction, Evjen was sentenced to 10 years imprisonment. We determine that the District Court properly denied Evjen’s motion to suppress the evidence and we affirm his conviction.

Evjen’s principal issue is that the trial court erred by refusing to suppress, and later admitting into evidence, certain tangible items seized in a warrantless search of an unoccupied motor vehicle on private property. The State contends that Evjen was under arrest at the time of the search of the motor vehicle, that the search was conducted incident to a valid arrest, and that the search comes within the automobile exception to the warrant requirement.

On the night of November 16, 1987, and the very early morning hours of November 17, Daniel Evjen, Darryl Cline, and Earlyn Mellstead were patrons of the Rocking G Bar near Poison, Montana. They had come to the bar in a Chevrolet pickup truck which was parked in the Rocking G parking lot near the building. Evjen had been a passenger in the motor vehicle.

While these patrons were in the bar, Officer Bruce Phillips of the Lake County Sheriff’s office received a telephone tip from one Bill Morrison, an informant considered reliable, that certain individuals were selling drugs in the Rocking G parking lot. Officer Phillips and Officer Bill Pray went to the parking lot, met with Morrison, and there learned from him that he had not in fact seen the drugs but that he had learned of them from Jessica Mangels, who was also in the bar. At about that time, the officers saw Jessica Mangels leave the area. Officer Phillips followed her and talked to her at a nearby trailer house.

Jessica Mangels was known to Officer Phillips because she had been a reliable informant in the past. She told Officer Phillips that before he arrived, she had been taken to an older red and white pickup truck by the shorter of two men in a group of three, a tall man, the short man, and a woman. In the truck, Jessica was shown a zip-lock baggie, full of what appeared to be marijuana. The baggie had been removed from a blue duffel bag. Jessica told Officer Phillips that she and the shorter man had smoked a marijuana cigarette and had discussed the sale and price of some marijuana.

After talking to Mangels, Officer Phillips returned to the parking lot to Officer Pray, who, with Morrison, were watching the truck that matched the description that Mangels had given.

While they were discussing whether Morrison should go into the bar and attempt to make a buy, the trio, Evjen, Cline and Earlyn Mellstead left the Rocking G bar to proceed toward the pickup. Officers Phillips and Pray were at that time standing between the motor vehicle and these three persons. The officers stopped them a distance from the motor vehicle and they were not allowed to approach the motor vehicle closer than several feet. Officer Phillips asked Cline for permission to search the pickup. Cline refused. Nevertheless, Phillips searched the passenger compartment of the pickup, and found a substantial quantity of marijuana in a ziplock baggie within a blue duffel bag. The three were then placed under arrest.

In contending that the warrantless search was unlawful, and that consequently his conviction was improper, Evjen relies on these factors: that at the time of the search, Evjen was not under arrest; that Officer Phillips testified at the suppression hearing that unless he had found drugs, he would not have placed Evjen and his companions under arrest; and that there were no exigent circumstances because Officers Phillips and Pray had detained and prevented the three persons from entering the pickup truck. Because of their detention, Evjen contends that the three persons did not have an opportunity to gain possession of a weapon or destructible evidence from the truck, the conditions usually required for the warrantless search of an automobile.

In essence, Evjen is contending that the officers did not have reasonable cause to make an arrest, before the search, that they did not make an arrest, and that therefore the warrantless search is improper absent an arrest.

The State contends that under State v. Thornton (Mont. 1985), [218 Mont. 317,] 708 P.2d 273, 45 St.Rep. 1614, Evjen was under arrest because he understood that he was not free to leave the parking lot. It further contends that under Section 46-5-101(1), MCA, the search of the vehicle here was proper as an incident to a lawful arrest. The State further contends that the warrantless arrest here was based on probable cause, the informant’s tip, and so was based on reasonable grounds citing State v. Ribera (1979), 183 Mont. 1, 7, 597 P.2d 1164, 1168.

The disposition of this cause does not require a long discussion. Officer Phillips, before the warrantless search, had received specific information from an eye witness that an ongoing crime was being committed in which the pickup truck was involved. Though Officer Phillips may not have believed that he had probable cause at that point to make an arrest (it appears he did have probable cause), he at least had a reasonable suspicion that a crime was being committed, and that the pickup was involved. In Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the officer in that case, at that time, having a reasonable suspicion that a crime was ongoing based on specific and articulable facts, was held entitled to make an investigatory stop of the defendants. Here the governmental interest in enforcing the law outweighed the interests of the driver and passengers of the pickup in remaining secure from detention.

The resolution of this case does not depend upon whether the officers had made an actual arrest of Evjen, but whether under the “probable cause exception” the officers had probable cause to search the motor vehicle without a warrant.

In State v. Spielmann, Christensen (1973), 163 Mont. 199, 516 P.2d 617, we adopted for Montana law purposes the probable cause exception for motor vehicles developed in Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, and Chambers v. Maroney (1970), 399 U.S. 42, 48, 90 S.Ct. 1975, 26 L.Ed.2d 419. In quoting from Chambers, supra, this Court said:

“Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until the search warrant is obtained; arguably, only the ‘lesser’ intrusion is permissible until the magistrate authorizes the ‘greater.’ But, which is the ‘greater’ and which is the ‘lesser’ intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between, on the one hand, seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand, carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.”

163 Mont. at 205, 516 P.2d at 621.

It was also stated in Chambers and adopted by this Court in Spielmann, that the right to search and the validity of the seizure are not dependent upon the right to arrest: they are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law. 163 Mont. at 205, 516 P.2d at 621; Chambers, 399 U.S. at 49, 90 S.Ct. at 1980.

Here, Officer Phillips had specific information from a reliable informant that she had been in the pickup, saw drugs therein, and she had described three persons who had come in the truck. When Officer Phillips returned, the information given him by the informant was confirmed in that three persons did approach the truck. There is no question that Officer Phillips had probable cause to search the truck at that time. The alternatives were to hold the truck until a magistrate or judge could issue a search warrant, or allow the three persons to get into their truck and drive away with the contraband evidence. Because the officers had probable cause to search the vehicle, the search was not unreasonable under the Fourth Amendment, even though an actual arrest of the defendant had not been made.

We are aware of the holding in U.S. v. Parr (9th Cir. 1988), 843 F.2d 1228. There, evidence obtained under a warrantless search of an automobile before arrest of the defendant was held inadmissible. The holding is based upon two principal grounds: (1) that the stop was for a traffic violation; and (2) there was no probable cause to suspect there was contraband in the vehicle. Those grounds distinguish the Parr case from this case involving Evjen and Parr is not applicable authority here.

An analogy to this case might be found in U.S. v. Sharpe (1985), 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605. In Sharpe, the officer, following two vehicles traveling in tandem, decided an investigative stop was proper and radioed the South Carolina State Highway Patrol for assistance. When they attempted to stop the vehicles, one of them was pulled over to the side of the road, but the pickup continued on pursued by the state officer. The state officer stopped the truck, questioned the driver, and told him that he would be held until the other officer arrived. The other officer arrived at the scene about 15 minutes after the truck had been stopped. He confirmed his suspicion that the pickup truck was overloaded and approaching the rear of the pickup and camper, he reported smelling marijuana. At that point, he obtained the keys from the ignition of the pickup, opened the rear of the camper without the driver’s permission and found a number of burlap wrapped bales which contained marijuana. Sharpe went to the United States Supreme Court on the question whether the detention of the driver of the pickup for 15 minutes was too long as a Terry stop. The propriety of the search of the truck at the same time was never questioned. In this case, the propriety of the Terry stop was not questioned, but the search of the vehicle is questioned. Under the circumstances here, the officers had the right to make an investigatory stop of the three persons as they approached the pickup truck. Moreover, the officers had reasonable cause based on the informant’s tip, verified by the appearance of the three persons, to search the passenger compartment of the pickup truck. The District Court was correct in refusing to suppress the evidence. The conviction is affirmed.

MR. JUSTICES WEBER, GULBRANDSON, HUNT and Mc-DONOUGH concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. NORMAN GERALD BARTNES, Defendant and Appellant.
    No. 87-468.
    Submitted on Briefs Oct. 13, 1988.
    Decided Nov. 29, 1988.
    734 P.2d 1271.

      James G. Hunt, Helena, for defendant and appellant.
    Mike Greely, Atty. Gen., Paul D. Johnson, Asst. Atty. Gen., Helena, Keith D. Haker, County Atty., Miles City, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The defendant, Mr. Bartnes, was convicted by a jury of criminal sale of dangerous drugs in the District Court for the Sixteenth Judicial District, Custer County. He appeals his conviction and sentence. We affirm.

The issues presented to this Court are:

1. Was the defendant denied his constitutional rights by either preindictment or post-indictment delay?

2. Did the District Court err in refusing the defendant’s jury instructions on criminal possession of dangerous drugs or criminal possession with intent to sell?

Robert Fairchild, an undercover agent for the Montana Criminal Investigation Bureau, testified at trial that in May of 1986, the defendant had sold him methamphetamine, which is a dangerous drug under Montana law otherwise know as “crank.” Agent Fairchild testified that the drug connection was established through Sandra Jo Stone, from whom he had purchased drugs during the course of his undercover investigation in Miles City, beginning in January 1986.

On May 7, 1986, Agent Fairchild contacted Ms. Stone and told her he wanted to buy an ounce of methamphetamine. Ms. Stone told him that she would make contact with a person named “Bruno,” whom Agent Fairchild identified at trial as the defendant. Ms. Stone and Agent Fairchild went to a bar where the defendant was playing cards. Ms. Stone testified that she made contact with the defendant at the bar, but that no sale took place at that time and that she told Agent Fairchild to stop by her residence later that evening. Agent Fairchild testified that when he arrived, Ms. Stone made a phone call to arrange the drug sale, presumably with the man named “Bruno.” Following the conversation, Ms. Stone told Agent Fairchild he could purchase an ounce of methamphetamine after the bars closed at 2 a.m.

Agent Fairchild later telephoned Ms. Stone and arranged to meet her at another bar to consummate the deal. He went to the bar ac-.companied by a Billings detective, and was told by Ms. Stone that she would take him to the defendant’s house. Agent Fairchild testified that at the residence, the defendant produced a small cellophane bag containing a white powdery substance, and that he gave the defendant $1,700 cash in exchange for the contents. A forensic scientist for the state crime laboratory testified that the powder sold to Agent Fairchild contained methamphetamine. In addition to providing “crank,” Agent Fairchild testified that the defendant also offered to sell him quantities of other drugs including LSD, ounces of cocaine, and pounds of marijuana.

I.

Was the defendant denied his constitutional rights by either preindictment or post-indictment delay?

The information was filed in this matter on September 30, 1986. This occurred 146 days after the May 7 transaction which led to the charges. On February 5, 1987, an omnibus hearing was held and trial was set for March 24, 1987, which was 175 days after the information was filed and 321 days after the May 7 incident. Eight days prior to trial, the defendant filed a motion to dismiss for delay in charging, or in the alternative, for failure to provide a speedy trial. The District Court denied the motion because there was no showing that the defendant has suffered from any delay or that the delay was caused by the State. The defendant contends that after reviewing the transcript, it is apparent that the delay did in fact contribute to memory loss and resulted in prejudice to him. He also contends that the State’s reasons for the delay are not sufficient to preclude dismissal of the charges because his right to a speedy trial was violated.

In analyzing Mr. Bartnes’ claim, we first note that this Court has distinguished between pre-indictment delay and post-indictment delay. See State v. Goltz (1982), 197 Mont. 361, 642 P.2d 1079, and cases cited therein. The reasoning behind this distinction rests upon the interpretation of the speedy trial clause of the Sixth Amendment. The United States Supreme Court has held that as far as the speedy trial clause is concerned, any pre-indictment delay is irrelevant since it is only a formal indictment or information or actual restraint imposed by arrest which triggers the protection of that provision. United States v. Lovasco (1977), 431 U.S. 783, 788-89, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752, 758. As this Court pointed out in Goltz, the protections which guard against lengthy pre-indictment delays are the statute of limitations and the due process clause of the Fifth and Fourteenth Amendments. Goltz, 642 P.2d at 1081-82. Thus, two different Constitutional provisions offer protection to the criminal defendant at various stages of the proceedings. The preindictment stage is protected by'the due process clause, while the post-indictment stage is protected by the speedy trial clause.

Under a due process analysis, this Court has held that the inquiry is whether the pre-indictment delay caused substantial prejudice to the defendant’s right to a fair trial and whether the delay was used as an intentional device to gain a tactical advantage over the accused. Goltz, 642 P.2d at 1082, citing United States v. Marion (1971), 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468, 481. At the pre-indictment stage, the burden of proof is on the defendant to establish actual prejudice. Goltz, 642 P.2d at 1082, citing United States v. West (9th Cir. 1979), 607 F.2d 300, 304.

In this case there were 146 days, or just under five months, between the time Mr. Bartnes sold the drugs to Agent Fairchild and the filing of the information. Agent Fairchild’s testimony indicated that it was not practical to make each arrest at the time he became aware of the illegal activity due to the nature and size of the investigation. He testified that it was necessary to maintain his undercover status in order to assure the presence of enough agents to simultaneously make all the arrests involved in the Miles City investigation. The record fails to show that the State used the pre-indictment period to gain a tactical advantage over the accused.

The defendant contends that pre-indictment delay caused actual prejudice by dimming the memories of the witnesses and that this interfered with his ability to present an entrapment defense. Entrapment is an affirmative defense requiring the defendant to prove 1) criminal intent or design originating in the mind of the police officer or informer; 2) absence of criminal intent or design originating in the mind of the accused; and 3) that the accused was lured or induced into committing a crime he had no intentions of committing. State v. Canon (Mont. 1984), [212 Mont. 157,] 687 P.2d 705, 710, 41 St.Rep. 1659, 1665. The record in this case is replete with evidence that the defendant was engaged in the business of selling dangerous drugs. This evidence refutes Mr. Bartnes’ contention that he had no criminal intent or that he would not have made the sale without inducement from the agent.

The defendant argues that Ms. Stone could not sufficiently recall a conversation with him in which he expressed reservation about dealing with Agent Fairchild. After examining her testimony, we conclude that the testimony does not indicate an inability to recall any facts which support the defendant’s claim that he had no criminal intent or that Agent Fairchild lured him into selling the drugs. If anyone induced Mr. Bartnes to make the sale, it was Ms. Stone who responded to the agent’s request by leading him to the defendant. There is no evidence that Agent Fairchild prodded or coerced Ms. Stone into arranging the deal. The testimony of both Agent Fairchild and Ms. Stone establishes that Ms. Stone acted upon her own initiative in soliciting the help of Mr. Bartnes to obtain the drugs. We hold that there has been no violation of the defendant’s due process rights by any pre-indictment delay.

The defendant also contends that his right to a speedy trial was violated due to delays chargeable to the State. The information was filed September 30, 1986. Trial was scheduled for March 24, 1987, but did not take place until June 24, 1987. The defendant concedes that he is responsible for that three month period of delay. Thus, we are concerned with the 175 days from the filing of the information to the scheduled trial date.

To evaluate the effect of any post-indictment delay under the speedy trial clause of the Sixth Amendment, the United States Supreme Court has identified four factors to consider 1) length of the delay; 2) reason for the delay; 3) the defendant’s assertion of the right; and 4) prejudice to the defendant. Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117. In applying the factors, the length of delay acts as a triggering mechanism so that:

“[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. 407 U.S. at 530-31, 92 S.Ct. at 2192-93, 33 L.Ed.2d at 117-18.”

A 175 day post-indictment period is somewhat less than the delay periods in other cases where this Court has found a presumption of prejudice. State v. Palmer (Mont. 1986), [223 Mont. 25,] 723 P.2d 956, 43 St.Rep. 1503, (256 days); State v. Chavez (1984), 213 Mont. 434, 691 P.2d 1365, (214 days); State v. Ackley (1982), 201 Mont. 252, 653 P.2d 851, (257 days). The State argues that the 175 day delay less the period of time attributable to the defendant through several motions, leaving a total of 152 days, is insufficient to establish a presumption of prejudice. In a strict comparison with previous cases cited above, we tend to agree. However, when looking to the “peculiar circumstances of the case” as suggested by the Court in Barker, we choose not to halt our analysis at this point. The record shows that the majority of the delay is attributable to the State, and that this is a relatively uncomplicated case both in its preparation and presentation. The State is therefore required to give a reasonable excuse for that delay or to show that the defendant was not prejudiced. Palmer, 723 P.2d at 958.

The second factor in the Barker analysis is the reason for the delay. The State contends that the 152 days of delay attributable to itself was institutional rather than intentional and was not used as a tactical device. While delay inherent in the system weighs less heavily than intentional delay, it is still chargeable to the State and does not offer an excuse. Ackley, 653 P.2d at 853-54.

The third Barker factor is the assertion of the right to a speedy trial by the defendant. The State concedes that Mr. Bartnes asserted his right in a timely and proper fashion.

Finally, the State must show that the defendant was not prejudiced by the delay. Three interests which are adversely affected by prejudice as identified in Barker have been adopted by this Court: 1) to prevent oppressive pretrial incarceration; 2) to minimize anxiety and concern of the accused; and 3) to limit the possibility that the defense will be impaired. Chavez 691 P.2d 1369. In this case, the defendant was in jail only one day prior to trial. The defendant’s assertion of prejudice relates to the third interest cited above, in that delay caused an impairment of memory which affected his ability to present his entrapment defense.

We have already discussed this matter in relation to pre-indictment delay and we reach the same conclusion regarding any post-indictment delay. The testimony of Ms. Stone does not reveal that she suffered any memory loss relating to the elements of an entrapment defense. The record fails to demonstrate that Mr. Bartnes suffered oppressive pretrial incarceration or anxiety, or that the defense was impaired in any way. We conclude that his right to a speedy trial has not been violated.

II

Did the District Court err in refusing the defendant’s jury instructions on criminal possession of dangerous drugs or criminal possession with intent to sell?

The defendant was charged with the offense of criminal sale of dangerous drugs in violation of Section 45-9-101, MCA. He argues that the District Court erred in failing to instruct the jury regarding the lesser included offenses of criminal possession of dangerous drugs in violation of Section 45-9-102, MCA, and criminal possession with intent to sell in violation of Section 45-9-103, MCA. Under the theory upon which the defendant’s case was tried, such instructions on a lesser included offense theory were not appropriate.

The defendant argued in his case in chief that the State was guilty of entrapment by its use of the undercover agent and Ms. Stone soliciting the sale of drugs. If the defendant had convinced the jury of entrapment, he would have been entitled to an acquittal of the charge of criminal sale of dangerous drugs. In State v. Ostwald (1979), 180 Mont. 530, 538-39, 591 P.2d 646, 651, this Court stated: “. . . where an accused is either guilty of the offense charged or is entitled to an acquittal ... an instruction on the lower offense is not necessary and is properly refused. The Court may not be put in error for refusing to instruct on a lesser offense in such cases.”

We further point out that criminal sale of dangerous drugs does not include possession as an element of the crime. Criminal sale of dangerous drugs is defined as follows:

“A person commits the offense of criminal sale of dangerous drugs if he sells, barters, exchanges, gives away, or offers to sell, barter, exchange, or give away or manufactures, prepares, cultivates, compounds, or processes any dangerous drug, as defined in Section 50-32-101.”

Section 45-9-101(1), MCA. As the statute makes clear, possession is not an element of the crime with which the defendant was charged.

We therefore conclude that the District Court did not err in refusing to give the offered instructions on criminal possession of dangerous drugs and criminal possession with intent to sell.

Affirmed.

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


text:
    In the MATTER OF DECLARING M.W., a Youth in Need of Care.
    No. 88-54.
    Submitted on Briefs Sept. 1, 1988.
    Decided Nov. 29, 1988.
    764 P.2d 1279.

      Diana P. Leibinger, Missoula, for appellant.
    Mike Greely, Atty. Gen., Peter Funk, Asst. Atty. Gen., Helena, Martha McClain, Robert L. Deschamps, III, Co. Atty., Diane Conner, Missoula, for respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

R.W.’s parental rights as father of M.W., a child, were terminated on October 23, 1987, in the District Court, Fourth Judicial District, Missoula County. The District Court awarded the Montana Department of Social Rehabilitative Services custody of the child with authority to assent to adoption. R.W. appeals. This Court affirms the decision of the District Court.

The issues are these:

1. Did the District Court abuse its discretion by terminating the father’s parental rights?

2. Is Section 41-3-609(l)(b), MCA (1985), unconstitutional as applied to non-custodial parents?

M.W. was born October 21, 1976. C.M. (mother) and R.W. (father) were living in California at the time of the child’s birth. Mother left California in January, 1978, and came to Montana to visit her family. On April 2, 1978, mother filed a petition for dissolution of her marriage to R.W. in Missoula County. A default decree was entered on December 10, 1979. Custody of the child was awarded to mother and father was granted reasonable visitation and ordered to pay child support in the amount of $100 per month through the office of the Clerk of Court of Missoula County.

From 1978 to 1983, father had no contact with M.W. He attempted to see the child in 1980 but mother would not cooperate. In 1983, father moved to Missoula and again tried to establish contact with the child. After problems with visitation, father retained an attorney in Missoula to have his visitation rights specified by the court. During this time, father paid child support beginning May, 1983, at the advice of his attorney. Part of the problem was mother’s boyfriend, who demanded that all visitation arrangements be made through him. Father, father’s wife and M.W.’s grandmother all found mother’s boyfriend to be intimidating and physically threatening. Father complied for the most part with mother’s boyfriend’s demands, although father had to obtain law enforcement assistance on two occasions. Father discontinued child support payments in December, 1983.

In February, 1985, father moved to Glendive, Montana, with his girlfriend and her three daughters. He eventually married his girlfriend. When he left Missoula, he made no attempt to notify mother of his whereabouts. During this time, father made several trips to Missoula but was unable to locate mother. In one instance, he saw M.W. on the street but did not approach the child.

In November, 1985, father and his wife and her children moved to Anacortes, Washington. Father made no effort to contact or locate mother and M.W. In December, 1986, M.W.’s maternal grandmother contacted father to inform him that his and mother’s parental rights had been terminated. Father immediately contacted the Missoula County Attorney seeking custody of M.W.

The SRS placed M.W. in foster care in February, 1985, at mother’s request. SRS had received referrals regarding M.W. from 1979 to 1985. Mother was supposed to take medication for epilepsy but failed to take the medication regularly. SRS learned she was not taking her medication, and that she and M.W. were living in a house with no hot water, electricity or heat. There was no food in the house and mother was being evicted. Other earlier referrals to SRS about M.W. concerned lack of food and inappropriate clothing.

Throughout the process, mother claimed to have no knowledge of father’s whereabouts and was vague about his identity. On September 18, 1986, after mother’s failure to comply with a treatment plan, the District Court terminated mother’s and “unknown father’s” parental rights.

M.W. is mildly mentally retarded and has been placed in special education classes at school. M.W. has been treated by Dr. Cook, a child psychologist, since she was 2 years old. Dr. Cook opines that M.W. has been adversely affected by the combined effects of the absence of one parent and the neglect by the other parent. M.W. has demonstrated anxiety and fear because of the lack of a stable home environment and she becomes very fearful at the mention of any change in her current living arrangements.

On January 8, 1987, father filed a petition for custody claiming paternity. January 9, father filed motions pursuant to Rule 60(b)(1) - (4) of the Montana Rules of Civil Procedure seeking relief from that part of the September 18, 1986, judgment terminating his parental rights. On March 24, 1987, the District Court set aside its order of September 18, 1986, as applied to father and awarded him custody. On March 27, 1987, SRS filed a petition for temporary investigative authority and order for protective services which was issued that same day. On April 7, 1987, the State filed a petition to terminate parental rights alleging the father had abandoned M.W. On October 23, 1987, the District Court terminated father’s parental rights on grounds of abandonment, Section 41-3-609(l)(b), MCA.

I.

Did the District Court abuse its discretion by terminating father’s parental rights?

Statutory law governing the termination of parental rights is found in Title 41, Chapter 3, MCA. Parental rights of the father were terminated pursuant to Section 41-3-609(l)(a), MCA, which states parental rights may be terminated upon a finding that the child has been abandoned as set forth in Section 41-3-102(3)(d), MCA:

“ ‘(3) Harm to the child’s health or welfare’ means the harm that occurs whenever the parent or other person responsible for the child’s welfare: . . . (d) abandons the child by leaving him under circumstances that make reasonable the belief that the parent or other person does not intend to resume care of the child in the future or by willfully surrendering physical custody for a period of 6 months and during that period does not manifest to the child and the person having physical custody of the child a firm intention to resume physical custody or to make permanent legal arrangements for the care of the child; . . .”

This Court has stated that due to the presumption of correctness of the determinations of the District Court regarding custody of children, findings will not be disturbed unless a finding of fact is not supported by substantial credible evidence. In Re the Matter of C.G. (Mont.1988), [230 Mont. 117,] 747 P.2d 1369, 45 St.Rep. 63. This Court has also stated that the State is required to meet its burden of proof by clear and convincing evidence in the termination of parental rights. In the Matter of JLB, Youth in Need of Care (1979), 182 Mont. 100, 594 P.2d 1127; In the Matter of MSM, Youth in Need of Care (Mont. 1982), [201 Mont. 400,] 654 P.2d 994, 39 St.Rep. 2191. This standard was adopted by this Court after the U.S. Supreme Court mandated this higher standard in Sandusky v. Kramer (1982), 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599.

In the present case, father had no contact with M.W. for three years and at no time indicated his intention to resume custody of the child until he learned his parental rights had been terminated. Father’s failure to make contact with M.W. for three years supports a finding by the District Court that father abandoned M.W. within the meaning of the statute. This Court found a father had abandoned his children in the case of In the Matter of MJD, CKD, ARD, Youths in Need of Care (Mont. 1987), [225 Mont. 200,] 731 P.2d 937, 44 St.Rep. 167, when the noncustodial father had minimal contact with his children for two years. This Court noted in that case that the period for establishing abandonment is six months. MJD, 731 P.2d at 940. Father’s lack of contact for three years clearly establishes abandonment under the controlling statute.

Other evidence that establishes father’s abandonment of the child includes the fact that father was well aware of mother’s mental retardation and the fact she suffered from epileptic seizures because she failed to regularly take her medication. He testified that when they were married, mother refused to take her medication regularly and did not care for M.W. properly but yet he made to attempt to prevent mother from gaining custody in the dissolution of their marriage. It was this failure by mother to take her medicine that eventually caused SRS to proceed with termination of mother’s parental rights. It was reasonable for the District Court to assume that an interested father would not leave a child in the hands of a clearly incompetent mother.

II.

Is Section 41-3-609(b), MCA (1985), unconstitutional as applied to noncustodial parents?

Father contends that because he was the noncustodial parent, he could not have abandoned his daughter and the procedure terminating his parental rights because of abandonment is fundamentally unfair. The guardian ad litem contends that this argument fails to consider the ongoing nature of the rights and obligations of the noncustodial parent. This Court agrees with the guardian ad litem. The noncustodial parent continues to have obligations as well as rights. Section 40-6-102, MCA, defines the parent and child relationship as follows:

“ ‘Parent and child relationship’ means the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties and obligations. It includes the mother and child relationship and the father and child relationship. (Emphasis added.)”

The legal relationship between father and M.W. did not change despite the fact mother was awarded custody. Father continued to have the obligation of support, Section 40-6-211, MCA; he continued to have the right to obtain records regarding the child, Section 40-4-225, MCA; he continued to have the right to visit the child, Section 40-4-217, MCA, and the right to reciprocal support, Section 40-6-214, MCA. Section 41-3-102(3)(d), MCA, considers the action of “the parent responsible for the child’s welfare,” not the action of the custodial or noncustodial parent. Father had continuing responsibilities for the child that did not disappear when he and mother divorced. However, father failed to continue in his obligations to this child and thus, abandoned the child within the meaning of Section 41-3-609(b).

In the matter of R.B. Jr., Youth in Need of Care, (Mont. 1985), [217 Mont. 99,] 703 P.2d 846, 42 St.Rep. 1055, this Court emphasized the procedural aspect:

We emphasize that the termination in Montana of a natural parent’s right to care and custody of a child is a fundamental liberty interest, which must be protected by fundamentally fair procedures

R.B., 703 P.2d at 848.

Father argues he was not afforded adequate due process. We disagree. Although father was not properly notified of the first proceeding in which mother’s and “unknown father’s” rights were terminated, the District Court rectified the situation by reinstating father’s rights. Father was given proper notice of the second proceeding in which his rights were terminated. The District Court appointed counsel on behalf of the father in order to protect his rights at the beginning of the procedure to have his parental rights reinstated. Father personally appeared at all subsequent hearings with his attorney. Procedural due process means notice and opportunity to appear. This Court concludes that father was afforded adequate due process.

This Court finds there is substantial evidence in the record to support the District Court’s findings of fact and order terminating father’s parental rights.

Affirmed.

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