author: JUSTICE WEBER JUSTICE HUNT,

text:
    In the Matter of the PETITION FOR POSTCONVICTION RELIEF OF JAMES M. BRODNIAK, Petitioner and Appellant, v. STATE OF MONTANA, Respondent.
    No. 88-311.
    Submitted June 6, 1989.
    Decided Sept. 14, 1989.
    779 P.2d 71.

      William Boggs argued, Missoula, for petitioner and appellant.
    Marc Racicot, Atty. Gen., Dorothy McCarter argued, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, County Atty., Missoula, for respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

James M. Brodniak appeals from an order of the Fourth Judicial District Court, Missoula County, denying his petition for post-conviction relief. We affirm.

We phrase the issues as follows:

1. Did the Montana Supreme Court apply the proper harmless error test during its review of Mr. Brodniak’s criminal trial?

2. Does the harmless error analysis applied by the Montana Supreme Court in its review of Mr. Brodniak’s criminal trial contravene the due process clause requirement that guilt be proven beyond a reasonable doubt?

3. As a matter of law, can evidence be found to be overwhelming for purposes of harmless error analysis where one or more members of the appellate tribunal are not convinced that it is?

A detailed description of the events leading to James M. Brodniak’s conviction of sexual intercourse without consent can be found in our opinion considering his direct appeal, State v. Brodniak (1986), 221 Mont. 212, 718 P.2d 322. Therefore, we only briefly describe the facts here.

In the early morning hours of May 10, 1984, D.P. left a Missoula bar with James M. Brodniak. The couple purchased a six-pack of beer and proceeded to drink and talk in a dormitory parking lot at the University of Montana. At trial, D.P. testified that, after a while, she asked Mr. Brodniak to take her home. Instead, he took her outside of Missoula to Pattee Canyon, locked the car doors, grabbed her hair, and forced her to engage in sexual acts. Mr. Brodniak, on the other hand, testified that he took D.P. to Pattee Canyon because she suggested that they go to a wooded area where she could to to the bathroom. He claimed that they then engaged in consensual sexual acts. He admitted, however, that toward the end of the incident he became violent, pulling D.P.’s hair and choking her.

After the incident, D.P. was examined by a medical doctor. The doctor testified that the injuries suffered by D.P. were probably not a common result of consensual sexual intercourse. A nurse at the hospital observed that a “gross amount” of hair came out while D.P. combed her hair. The bureau chief of the Montana Criminalistic Laboratory testified that several long hairs found in Mr. Brodniak’s car belonged to D.P. and that most of her hair had been pulled from her head with painful force.

The psychologist who examined D.P. testified that she had an IQ of approximately 78. He also testified that her psychological condition was consistent with all of the symptoms of rape trauma syndrome (RTS). In addition, he gave statistical testimony on the percentage of false accusations in rape bases and testified that he did not believe that D.P. was malingering.

After a four-day trial, Mr. Brodniak was convicted by a jury of the charge of sexual intercourse without consent. He was designated a dangerous offender and sentenced to 20 years in the Montana State Prison.

In Brodniak, we affirmed the conviction. In our opinion we discussed the admissibility of RTS testimony and concluded that, although RTS testimony is generally admissible, it was error for the State’s expert witness to testify as to his belief that D.P. was not malingering and to the statistical percentages of false accusations. We stated that such testimony was “improper comment on the credibility” of D.P. Brodniak, 221 Mont. at 222, 718 P.2d at 329. We held, however, that the admission of such testimony constituted only harmless error because the State’s evidence against Mr. Brodniak and his own admissions were overwhelming. Brodniak, 221 Mont. at 223, 718 P.2d at 329.

We also determined that three other errors were committed during the criminal trial, but refused to reverse the conviction, holding that each of the additional errors did not prejudice Mr. Brodniak. Mr. Brodniak’s petition for rehearing, which was summarily denied, was based on the doctrine of cumulative error, not on the issue of the standard of review employed in determining harmless error.

On January 16, 1987, Mr. Brodniak filed a habeas corpus petition in the United States District Court for the District of Montana, Missoula Division, Brodniak v. Risley, cause No. CV-87-29-M, alleging that the Montana Supreme Court had applied an incorrect test in its determination of harmless error. In response, the State alleged that Mr. Brodniak had not exhausted his state remedies because he had not presented that precise question to the state courts for review. Consequently, the U.S. District Court dismissed the habeas corpus proceeding without prejudice.

Mr. Brodniak then filed a petition for post-conviction relief with the Fourth Judicial District, Missoula County. After a hearing, the District Court denied the petition. Mr. Brodniak appealed to this Court.

I

Did the Montana Supreme Court apply the proper harmless error test during its review of Mr. Brodniak’s criminal trial?

Mr. Brodniak contends that the psychologist’s comment on D.P.’s credibility violated his right to jury trial guaranteed by the Sixth Amendment to the Constitution of the United States. He argues that expert testimony regarding a witness’s credibility invades the province of the jury, amounting to a Sixth Amendment violation. Mr. Brodniak contends that the federal test of harmless error, rather than the state test, must therefore be applied to his conviction, citing Chapman v. California (1967), 386 U.S. 18, 21, 87 S.Ct. 824, 826-827, 17 L.Ed.2d 705, 709.

Mr. Brodniak cites United States v. Azure (8th Cir. 1986), 801 F.2d 336, to support his contention that his Sixth Amendment right was violated. It is true that in Azure the Eighth Circuit held that, in a trial involving a sex crime against a minor, a pediatrician’s comment on the believability of the complaining witness constituted reversible error. That court however, made no reference to the Sixth Amendment. Rather, its analysis centered on the Federal Rules of Evidence. In a more recent case the Eighth Circuit explicitly stated that the propriety of expert testimony on general patterns of credibility among children reporting sexual abuse is essentially a matter of state law. Adesiji v. Minnesota (8th Cir. 1988), 854 F.2d 299, 300. Research has disclosed no cases holding that an expert’s comment on witness credibility violates the Sixth Amendment. Rather, other courts have analyzed this type of error pursuant to rules of evidence, and by applying a state harmless error test. See, e.g. Tevlin v. People, (Colo. 1986) 715 P.2d at 341-342; People v. Oliver (Colo. 1987), 745 P.2d 222, 225; State v. Chul Yun Kim (1986), 318 N.C. 614, 350 S.E.2d 347, 352.

In Montana, an error of state law will be deemed harmless “unless the record shows that the error was prejudicial.” Section 46-20-701, MCA. “The test of prejudicial error requiring reversal is whether there is a reasonable possibility the inadmissible evidence might have contributed to the verdict.” State v. Gray (1983), 207 Mont. 261, 268, 673 P.2d 1262, 1266; State v. Gray (1983), 202 Mont. 445, 449-450, 659 P.2d 255, 257; State v. LaVe (1977), 174 Mont. 401, 407, 571 P.2d 97, 101.

Mr. Brodniak devotes considerable argument to the federal harmless error test. We note that the federal harmless error test is essentially the same as that above enunciated for Montana. The United States Supreme Court stated the test for federal constitutional error in Fahy v. Connecticut (1963), 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171, 173. The Court later restated this test in Chapman, noting however, that it did not change the Fahy test:

“There is little, if any, difference between our statement in Fahy v. Connecticut about ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction’ and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.”

Chapman, 386 U.S. at 24, 87 S.Ct. at 828.

The essential question is whether there is a reasonable possibility that the inadmissible evidence might have contributed to the conviction.

Before discussion of this issue, we first note that Mr. Brodniak is asking this Court to reconsider an issue which was already decided in the original appeal of Brodniak where this Court stated:

“This Court, however, will not reverse a judgment of conviction for harmless error, and the question as to whether a particular error is harmful or harmless depends on the facts of the case under review. (Citation omitted.) In the instant case we hold that the admission of Walters’ testimony, above quoted, was harmless error. A review of the record of this case reveals that the physical evidence against Brodniak and his own admissions that he resorted to violence were so overwhelming that admission of the RTS testimony did not affect his substantial rights.”

Brodniak, 221 Mont.at 223, 718 P.2d at 329.

The overwhelming evidence rule is one method used by this-Court to ascertain whether there is a reasonable possibility that the inadmissible evidence contributed to the verdict. State v. McKenzie (1980), 186 Mont. 481, 533, 608 P.2d 428, 458, cert. denied, 449 U.S. 1050, 101 S.Ct. 626, 66 L.Ed.2d 507 (1980); accord, Tevlin v. People (Colo. 1986), 715 P.2d 338, 342. Also, when assessing the prejudicial effect of an error, this Court will examine the totality of the circumstances in which the error occurred. See Gray, 207 Mont. at 268, 673 P.2d at 1266. If the error involves erroneously admitted evidence, we will not single out that one item of evidence to evaluate it in isolation. To do so could magnify the prejudicial effect of the error beyond its actual impact on the verdict, leading to reversals for mere technical violations of evidentiary rules.

Mr. Brodniak urges that the evidence in this case is not overwhelming either from a factual or a legal standpoint. His legal argument on this issue will be addressed in Issue III. Factually, he contends that the evidence is equally as consistent with defendant’s theory of the case (which was that the sexual acts were consensual, but that defendant subsequently became violent) as it is with the prosecution’s theory. This is the key point of Mr. Brodniak’s argument with which we disagree.

This is not a case where the complaining witness’s story uncorroborated. Overwhelming evidence — both physical and testimonial — supports D.P.’s story. First, the evidence with regard to the tearing out of D.P.’s hair overwhelmingly demonstrated the use of force. The chief of the crime lab testified that most of the hairs found in the car and the large ball of hair retrieved from D.P.’s scalp had been pulled from her head with painful force. He testified that most of the strands of hair had extended roots still attached, indicating that these hairs were extracted violently. The ball of hair was introduced into evidence. The attending nurse testified that, while D.P. combed her hair, a “gross amount” of hair came out and her scalp appeared to be tender. Second, D.P. suffered a tear one inch in length in her anus, a fact clearly inconsistent with consensual relations. Third, the examining physician’s testimony established that D.P. had blood in and around her vagina, on her underwear and that the vaginal area still remained sore at the time of the examination. In response the defendant attempts to argue that he became violent only after they had engaged in consensual sexual intercourse. The foregoing evidence clearly is not consistent with consensual intercourse and establishes violent acts on the part of the defendant. We will not set forth the rest of the evidence including the testimony of D.P. which supports the conviction. Our careful review of the record reveals that the evidence overwhelmingly supports the verdict that Mr. Brodniak was guilty of sexual intercourse without consent. We hold there is no reasonable possibility that the psychologist’s testimony contributed to the jury’s finding that Mr. Brodniak was guilty of the crime of sexual intercourse without consent.

Mr. Brodniak makes an extensive argument with regard to the burden of proof according to the different tests. We conclude that it is unnecessary to discuss that argument because the previously described evidence submitted by the State is overwhelming and this Court has concluded that there is no reasonable possibility that the error contributed to the verdict.

II

Does the harmless error analysis supplied by the Montana Supreme Court in its review of the defendant’s criminal trial contravene the due process clause requirement that guilt be proven beyond a reasonable doubt?

Mr. Brodniak’s claim rests on the erroneous assumption that the state harmless error analysis somehow lowers the requisite level of proof necessary to meet the standard of “guilty beyond a reasonable doubt.” As stated earlier, the Montana test requires that there be no reasonable possibility that the error cofitributed to the verdict before it can be declared harmless. We hold that in Brodniak, there was no contravention of the due process requirement that guilt be proven beyond a reasonáble doubt.

III

As a matter of law, can evidence be found to be overwhelming for purposes of harmless error analysis where one or more members of the appellate tribunal are not convinced that it is?

In Brodniak, one member of our seven-member Court dissented from the majority opinion. Brodniak argues that, as a matter of law, evidence cannot be overwhelming for purposes of harmless error analysis where one or more members of the appellate tribunal are not convinced that it is. However, unanimity among the appellate tribunal has never been a prerequisite to a finding of harmless error when using the overwhelming evidence test, even when the test is-used to determine the magnitude of constitutional error. See State v. Powers (1982), 198 Mont. 289, 645 P.2d 1357 (one justice dissenting from harmless error determination); State v. Dess (1979), 184 Mont. 116, 602 P.2d 142 (one justice dissenting); Milton v. Wainwright (1972), 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1; (four justices dissenting); and Harrington v. California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (three justices dissenting).

Although we have referred to some federal cases, our analysis and our holding in this opinion are based upon our analysis of Montana’s statute defining harmless error and our case law interpreting that standard. Our opinion therefore is based on independent and adequate state grounds.

We affirm the District Court’s denial of Mr. Brodniak’s petition for post-conviction relief.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, Mc-DONOUGH and GULBRANDSON concur.

JUSTICE HUNT,

dissenting:

I dissent. The State bore the burden of proving beyond a reasonable doubt that the complaining witness did not consent to sexual intercourse with the defendant. To bolster its case, the State solicited testimony regarding the credibility of the complaining witness. Because of the potentially tremendous impact of this testimony, I cannot join the majority’s conclusion that the error did not contribute to the jury verdict.

Whether an error is harmless depends on a number of factors, each of which should be- carefully analyzed by the reviewing court. These factors include:

1) the nature of the error;

2) the importance of the erroneously admitted evidence to the State’s case; and

3) the presence or absence of corroborating untainted evidence. Cf. Delaware v. Van Arsdall (1986), 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (listing factors to be considered in determining harmlessness of error involving Sixth Amendment right of confrontation); Satterwhite v. Texas (1988), 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (psychiatrist’s testimony in violation of Sixth Amendment right to counsel was not harmless when the testimony regarding defendant’s dangerous propensity was critical to sentencing, when only one psychiatrist testified on the issue and when the State placed significant weight on the testimony).

The nature of the error committed in this case directly implicated the ultimate issue to be determined at trial, that is, whether the complaining witness consented to sexual intercourse with the defendant. Thus, the expert’s testimony regarding the credibility of the complaining witness improperly invaded the province of the jury. Furthermore, the testimony was material to the State’s case. The State actively solicited the testimony and the State relied upon it in closing. Moreover, the untainted evidence corroborated not only the State’s case, it corroborated the defendant’s theory of the case as well, that is, that the violent acts did not occur until after a consensual sexual encounter.

The overwhelming evidence test used in this opinion places the majority in the uncomfortable position of factfinder, forcing the majority to reweigh and, to some extent, mischaracterize the evidence. For example, the physician who examined the complaining witness testified that, although not common, her condition could possibly have resulted from consensual sexual relations. The majority, however, claims that her condition was “clearly inconsistent” with consensual intercourse.

By concentrating solely on the weight of the evidence and ignoring the nature of the error and the error’s importance to the State’s case, the majority examines the impact of the error in a vacuum. The issue before the jury was whether the complaining witness engaged in consensual sexual relations with the defendant. To reach a verdict, the jury weighed the credibility of the witnesses. Among the evidence the jury had before it was the testimony of a highly quali - fied expert witness who asserted that he believed that the complaining witness was credible. This testimony was solicited by the State and extensively relied upon by the State in closing. Under these circumstances, I cannot agree with the majority that, beyond a reasonable doubt, the expert testimony did not contribute to the jury verdict.

I would remand the case to the District Court for a new trial.

JUSTICE SHEEHY concurs in the foregoing dissent.


source: Caselaw Access Project

author: JUSTICE SHEEHY

license: Public Domain

text:
    ERMINDO ZAVARELLI, Plaintiff and Respondent, v. ANGELA MIGHT, Defendant and Appellant.
    No. 89-44.
    Submitted on Briefs June 30, 1989
    Decided Sept. 14, 1989.
    779 P.2d 489.

      Connell & Beers, Thomas J. Beers, Missoula, for defendant and appellant.

      John C. Schulte, Hugh Kidder, Missoula, for plaintiff and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the court.

This appeal presents a procedural issue as to the power of a district court, upon remittitur and remand of a cause to the District Court from this Court “for further proceedings.” We determine that a district court, on reversal and remittitur from this Court “for further proceedings,” is' reinvested with full jurisdiction of the cause, and that the issues raised in the cause are generally open for the District Court’s decision, except only for legal conclusions controlled by the law of the case established in the reversal.

Angela Might appeals from a decision of the District Court, Fourth Judicial District, Missoula County, which held adversely to Angela that the common boundary line between her real property and that of her brother, Ermindo Zavarelli, followed an historic old board fence.

Ermindo Zavarelli and Angela Might are brother and sister. Through the probated Will of their father, in 1968, they each became life tenants with undivided interests in the whole of certain abutting tracts of land in Missoula County, previously owned by the father.

The father died in 1966. Beginning in that year, Ermindo commenced building certain apartment buildings on the property subject to then undivided life estates of the parties. This continued until eight apartments were built, all of them being situated on Lot 18, Cobban and Dinsmore Orchard Homes No. 2.

Ermindo obtained permits for the installation of septic tanks and sewer drainage lines from the Missoula County Health Department. The District Court found that part of a septic tank system (or sewer system) intruded on lands contained within the Eddy Edition to the south of Lot 18. The court further found that Ermindo placed the septic tanks on the property, before the life estate interests were divided, north of a board fence which the court found was understood by the parties to be on the south property line of Lot 18.

On February 25, 1971, Ermindo made, executed and delivered to Angela a quitclaim deed to certain of the real property, and in return on the same date Angela made, executed and delivered a quitclaim deed to Ermindo to certain of the real property. The remaindermen after the life estates were all grandchildren of the deceased father and all of the remaindermen joined in the execution and delivery of the quitclaim deeds. Thus, the issues in this case involve only the rights of the life estate holders, Ermindo and Angela.

The District Court further found and concluded that the parties had by mutual agreement divided the property subject to the life estates between them by delineating in the quitclaim deeds the exact descriptions of the property each was to own. They further found that they relied on the legal descriptions as set forth in recorded subdivision plats in Missoula County and that they were both under the impression that the fence erected by the father was a boundary line between the two divided properties.

In the first trial of this cause, the District Court did not disturb the descriptions of the property deeded by Angela to Ermindo in the mutual quitclaim deeds. Instead, the District Court concluded that Ermindo had obtained a prescriptive easement to that parcel of the property, which under the description of the quitclaim deeds, belonged to Angela. That judgment of the District Court was appealed by Angela to this Court, and in Zavarelli v. Might (Mont. 1988), [230 Mont. 288,] 749 P.2d 524, 45 St.Rep. 211, we reversed the holding that Ermindo had a prescriptive easement over Angela’s lands. In reversing and remanding the cause for further proceedings in the District Court, we said:'

“Ermindo’s complaint proceeds on the theory that he and Angela had divided the property in accordance with directions received from the father and that the true boundary line between their property should have been that marked by a board fence south of Lot 18. Although the District Court made findings and conclusions respecting the location of the fence, the judgment that there was a prescriptive easement, is a refutation of any title to the disputed area in Ermindo and is, instead, a conclusion that Angela owned the line up to the subdivision line in Lot 18, but subject to the purported prescriptive easement of Ermindo. Ermindo cannot both own the surface of land up to the line of the board fence, and have a prescriptive easement under the same ownership. The easement would merge in the title. Ermindo could not claim title to the surface of the disputed area south of Lot 18 by adverse possession, since he does not pay the taxes thereon. Section 70-19-411, MCA.
“Since the prescriptive easement cannot be supported, the judgment must be reversed. We remand for such further proceedings as are necessary in the light of this opinion and the facts found by the District Court.” (Emphasis supplied.)

When the District Court received the cause again after reversal and remand to it, the court held further proceedings. Angela moved for a judgment from the District Court ejecting Ermindo Zavarelli from Angela’s property and requiring him to remove the existing sewer system. On the other hand, Ermindo moved for summary judgment, claiming that on the facts already found by the District Court the descriptions of the quitclaim deeds to each other constituted a mutual mistake between the parties, because of their intention to fix the common boundary line to that of the old board fence.

In deciding the matter, the District Court made no further findings of fact, but made additional conclusions of law to the effect that when the parties divided their respective ownership interests in the real property, they agreed and understood that the real property would be divided along a boundary fence, which they mistakenly believed represented the boundary line as shown on described tracts on the records of Missoula County; that because of their mutual mistake, the deeds did not accurately convey to each other the exact parcels that were intended to be transferred, and concluded that the exact proper line of the historic old board fence was one which the court described with particularity. The District Court thereupon quieted title in Ermindo for the duration of his life estate in the real property up to the old board fence. This judgment had the effect of including within Ermindo’s real property the sewer system above-mentioned.

Angela has now appealed a second time to this Court from the decision of the District Court. She contends on appeal that under our former Opinion in Zavarelli v. Might, supra, the District Court on remand had to conclude and enter a judgment that she was the owner of the disputed property, that Ermindo was trespassing thereon, and that the court erred in allowing a new affirmative defense of mutual mistake.

Angela’s contention that the District Court was duty bound after remand and remittitur to hold Ermindo a trespasser on her land requires an examination of the doctrine of “law of the case.” In explaining “law of the case,” this Court has said:

“The rule is well established and long adhered to in this state that where, upon an appeal, the Supreme Court, in deciding a case presented states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case, and must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent appeal; ... It is a final adjudication from the consequences of which this Court may not depart, nor the parties relieve themselves [citing cases].”

Carlson v. Northern Pacific Railway Co. (1929), 86 Mont. 78, 281 P. 913, 914. See also Fiscus v. Beartooth Electric Cooperative (1979), 180 Mont. 434, 591 P.2d 196.

It is generally true, however, that the doctrine of law of the case applies to questions of law which are decided on the case. The doctrine does not apply to questions of fact:

“The general principle seems to be that the doctrine of the law of the case applies only to determinations of questions of law and not to questions of fact. It has been said that the doctrine of the law of the case applies to all questions of law identical to those on the former appeal, and on the same facts and to the same questions only, that the doctrine is rarely, and in a very limited classification, applied to matters of evidence as distinguished from rulings of law, and that a decision on appeal on a question of fact does not generally become the law of the case, nor estop the parties on a second trial from showing the true state of facts.”

5 Am.Jur.2d 198, Appeal and Error § 755 (1962).

Under the doctrine of law of the case, therefore, the District Court on remand was precluded from determining as a matter of law that Ermindo had acquired a prescriptive easement over property owned by Angela. However, our order of reversal and remittitur told the District Court that the remand was “for such further proceedings as are necessary in the light of this opinion and the facts found by the District Court.” Under the facts found by the District Court in the first trial, it had concluded that the parties intended to divide their property using as a common boundary line an old board fence.

The rule of law of the case, therefore, precluded the District Court from making any further conclusions that would have the effect of establishing a prescriptive easement in Ermindo. The rule of law of the case did not, however, preclude the District Court from reaching a different conclusion of law based on the facts which it had already found.

We come now to the effect of the mandate from this Court to the District Court when, on reversal and remittitur, the District Court was instructed to take “such further proceedings as are necessary in light of this opinion and the facts found by the District Court.”

“On remand, the trial court may consider or decide any matters left open by the appellate court, and is free to make any order or direction in further progress of the case, not inconsistent with the decision of the appellate court, as to any question not presented or settled by such decision. The issues are generally open on a retrial when a casé is reversed and remanded for further proceedings. If the mandate speaks only in the light of the special facts found, the lower court is at liberty to proceed in all other respects in the matter that, according to its judgment, justice may require; The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein. The mandate is to be interpreted according to the subject matter and, if possible, in a manner to promote justice.”

5 Am. Jur. 2d 420, 421, Appeal and Error, § 992 (1962).

When this Court reversed the first judgment of the District Court as to a prescriptive easement, and remanded the cause to the District Court for further proceedings, the cause was then before the District Court in the posture of not having a final judgment. In that situation, when there is nothing in the terms of the mandate to prevent it, the trial court has the power, on reconsideration, to find the same facts and change its holding, or to find different facts consistent with its original holding. Imperial Chemical Industries Ltd. v. National Distillers and Chemical Corp. (2d Cir. New York 1965,), 354 F.2d 459, 19 A.L.R.3d 492. Assuming nonapplication of the doctrine of law of the case, the District Court was free to correct any error in its original findings and conclusions, without hearing new evidence as to matters not passed on by this Court. Hutchins v. State (1979), 100 Idaho 661, 603 P.2d 995.

The conclusion of law that the descriptions in the mutual deeds were the result of a mutual mistake between the parties at the time of the execution of the deeds is, of course, a different conclusion of law from a holding that one party has a prescriptive easement over the land of another. Nothing in our first opinion in this cause prohibited the District Court from reaching a different conclusion of law based upon the same or nearly identical facts. The finding of fact as to the mutual intent of the parties at the time of the execution of the deeds is founded on substantial evidence. It is therefore not clearly erroneous (Rule 52(a), M.R.Civ.P.) and the conclusion of law based thereon must be affirmed by us.

Angela argues, however, that the pleadings do not support the theory of mutual mistake. It is true in this case that the original complaint filed by Ermindo asked for injunctive relief to prevent Angela from interfering with the sewer system. There is no direct allegation in his pleadings as to mutual mistake, although his original complaint assumed that he was in fact the owner of the property on which the sewer system was situated. The answer of Angela contended that she was in fact the owner of the property by virtue of the descriptions in the deeds and she cross-complained against Ermindo for damages arising from trespass and a reduction in the value of her property. Regardless of the pleadings, however, an issue in the cause in the first trial before the District Court was whether a mutual mistake had been made by the parties in determining the common boundary line. The District Court made findings with respect to that issue. In this situation, the judgment finding mutual mistake between the parties and correcting the description is not improper. Under Rule 54(c), M.R.Civ.P., “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.”

Angela, however, raises two further objections to the judgment entered after remand which have some merit. The first is that in the conclusions of law and judgment, the District Court entered a description of the common boundary line based upon an exact survey. No evidence was taken in the case that the line as surveyed followed accurately the line of the old board fence. Apparently the description of the common boundary line adopted by the District Court was supplied by counsel for Ermindo through proposed findings. We cannot determine from the record whether the survey accurately reflects the position of the old board fence.

The second objection raised by Angela is that the District Court, in making its final judgment, quieted title to the disputed land not only as between Angela and Ermindo, but also as to their respective remaindermen. Since no issues in the cause at this point directly affected the remaindermen, they were not parties to the action.

As to the first objection, the boundary line, this Court will on remand permit a period of sixty days for Angela to present evidence, if she may desire, as to the exact location of the old board fence, if she determines that it does not agree with the description now entered by the District Court. As to the second contention, we will modify the judgment so that title is quieted only as to the parties to this cause.

CROSS-APPEAL

Angela appeals from the denial by the District Court of costs which she claims by virtue of being the successful litigant on the first appeal.

Rule 33, M.R.App.P., allows costs, if not otherwise provided by this Court in its decision, automatically to the successful party against the other party. Angela timely filed her memorandum of costs after our decision in the first appeal in the amount of $706.75. The District Court did not enter judgment with respect to those costs.

Since Angela was the successful party, and properly filed her memorandum of costs, she is entitled to receive the same, although eventually the judgment on remand went against her. No appeal was taken by either party from that portion of the second judgment that each party should bear his or her own costs of suit.

Accordingly, we will on remand, direct the entry of judgment in favor of Angela for her costs on her successful appeal and sustain the further judgment of the District Court that each party will otherwise bear his or her own costs.

CONCLUSION

The judgment of the District Court is affirmed with these modifications, which shall be entered by the District Court upon remand in this cause:

1. The District Court shall, if required by Angela within 60 days from the date of remittitur, grant a further hearing for the presentation of evidence as to the exact location of the old board fence.

2. Final judgment of the District Court shall quiet title to the disputed strip only as to the parties Ermindo and Angela.

3. Angela shall be awarded her costs incurred in the first appeal in the sum of $706.75.

4. Otherwise these parties shall bear his or her own costs in the District Court and on this appeal.

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


text:
    In the Matter of the ESTATE OF GERALD W. BARBER, Deceased.
    No. 89-084.
    Submitted on Briefs June 8, 1989.
    Decided Sept. 14, 1989.
    779 P.2d 477.

      Philip R. McGimpsey, Billings, for appellant.
    Donald E. Ronish, Lewistown, for respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Jerry F. Barber, Barbara A. Snooks and Ted L. Barber, the children of the decedent, Gerald W. Barber, appeal from an order of the District Court, Tenth Judicial District, Fergus County, approving and settling the final account of the personal representative, Margaret A. Barber, and directing distribution of the estate of the decedent.

The personal representative, Margaret A. Barber, appeals from the same order of the District Court denying further attorney fees for extraordinary services rendered in the administration of the estate.

We affirm the order of the District Court insofar as it approves the final account of the personal representative and orders distribution of the estate; and reverse the portion of the order denying attorneys fees for extraordinary services for the reasons hereafter stated.

The three appellants here (for want of a better term, hereafter “Objectors”) are children of the decedent Gerald W. Barber by a former marriage. The personal representative, Margaret Barber, is the widow of the decedent.

The Will

Gerald W. Barber was a long-time farmer in the Denton area. He died testate on December 4,1982. At the time of his execution of the will he was competent.

On September 16, 1982, the decedent conveyed to his wife, Margaret Barber, 640 acres of his farm, which he considered and treated as one-fourth of his farm holdings.

On the same day but after the conveyance to his wife, he executed his last will and testament. His will directed that if his other rural property, which included his interest in the farm, should be sold during his life or during probate of his estate, the payments thereof would be divided among his heirs as follows:

One-fourth to his wife for the 640 acres he had deeded to her that day; three-eighths to his children; three-eighths to his wife for life or until she remarried, and the remainder to his children.

However, because of matters which occurred during the probate of the estate, hereafter detailed, at the time of the petition for distribution of the estate, except for joint tenancies, and specifically devised property, the residue of the estate was to be distributed one-half to the widow, and one-half to the surviving children.

The Farm Sale

Pertinent to the disposition of this case is an understanding of the sale of the decedent’s farm lands, and what occurred respecting the sale contract in the administration of the estate.

On October 18, 1982, the decedent and his wife, Margaret Barber, entered into a contract for deed to sell the farm holdings to Russell E. Senef and Phyliss L. Senef, for $1,100,000.00. The real property to be transferred under the sale included the 640 acre parcel which decedent had earlier deeded to Margaret A. Barber. The down payment by the Senefs to Barber for the farm property included cash in the net amount of $71,215.00 and 560 acres of land transferred from Senef to the decedent Barber. The decedent deposited the down payment in a joint bank account with his wife, Margaret Barber, and used some of the proceeds to purchase a single premium annuity of which his wife was the owner.

When the decedent died on December 4, 1982, the balance due on the contract became an asset of the estate, and subject to the terms of the will.

On November 25, 1986, while the estate was in progress, Margaret Barber, as personal representative of the estate, petitioned the District Court for approval of an offer from the buyers under the contract for a full and final payment by the purchasers of $745,794.56. The principal balance on the contract then was $836,960.49. The 1985 payment had been deferred, and accrued interest to the time of the petition for approval brought the total due to $994,392.75. Over the stiff opposition of the objectors, the District Court on December 29,1986, approved the acceptance of the offer. The factors which led the court to approval will be discussed later in this opinion.

The Final Account(s) and Petition for Distribution

On January 20, 1987, the personal representative filed her first and final account, petition to fix attorneys fees, and for distribution, and a hearing thereon was duly noticed by the court. On February 18, 1987, the personal representative filed a supplemental account, to report an additional $589.64 in interest. On July 9, 1987, the personal representative filed a further supplemental account to report interest accrued since the date of the first account. In the meantime, the objectors had requested and obtained discovery and eventually the District Court held its hearing on the accounts on July 9 and 10, 1987.

On January 12, 1988, the court issued an order settling and approving the first and final account as supplemented by the personal representative. That order also included provisions for distribution of the decedent’s estate. This order was appealed by the objectors to the Montana Supreme Court under its Cause. No. 88-230 which appeal was dismissed by this Court on January 10, 1989.

On August 8, 1988, the personal representative filed a “Current Account and Petition to Fix Fees” which reported changes in the financial status of the estate after July 8, 1987. Included in the disbursements were three items, a payment to Margaret A. Barber as personal representative of $7,500.00 as part of her fee for representing the estate; further payment to Margaret A. Barber in the sum of $12,000 as part of the principal on loans she had made to the estate; and a payment of $12,000.00 to Donald E. Ronish, as part of his attorney fee in the estate. A hearing was held on August 30,1988, on the opposition of the Objectors to the account as supplemented and on December 14, 1988, the District Court issued its order approving “the current account, and actions, proceedings done and conducted in this estate by the personal representative, attorney and accountants.” The Court also denied additional attorney fees for legal services and ordered the personal representative to distribute the balanee of the estate to the heirs and beneficiaries as petitioned in the final account.

The notice of appeal filed by the Objectors which brings the case to this Court recites that it is an appeal from the order of December 14, 1988, of the District Court.

Jurisdiction

Before we proceed to a discussion of the other issues raised in the case, we will first regard the issue of jurisdiction raised by the personal representative, Margaret Barber.

The personal representative first contends that this Court has no jurisdiction to consider matters handled during the administration of the estate that are not included in the order of December 14, 1988, issued by the District Court. The contention of the personal representative is that the order of the District Court on January 12, 1988, settling and approving the first and final account was itself an appealable order, and since no appeal was made by the Objectors from that order, the issues that relate to that order cannot- be considered on this appeal. The District Court had considered this issue and decided that the matters involving the prior accounting were merged in the final account and that the court had jurisdiction.

The District Court is given broad jurisdictional powers in the handling of probates. It has exclusive jurisdiction of all probate-matters. Section 72-3-111, MCA. In any supervised administration (by order of the District Court this particular estate was a supervised administration), the court is given “continuing authority” in a single in rem proceeding to secure complete administration until the entry of an order approving distribution of the estate and discharging the personal representative. Section 72-3-401, MCA. Moreover, the several accountings filed in the estate proceedings by the personal representative in this case were a continuing report to the court as a first and final accounting for the purpose of obtaining authority for distribution under § 72-3-101, MCA. A final accounting is required to close an estate, whether it be supervised or not. Section 72-3-1005, MCA. Unless otherwise ordered by the court, a supervised administration may only be terminated by an order of the court with the time restrictions, notices and contents of orders as for other probates set forth in § 72-3-406, MCA. We therefore hold that all of the matters contested by the Objectors are merged, so that the order of the District Court of January 12, 1988, settling and approving the account, and the order of December 14, 1988 also approving the final account are to be treated as one order for the purpose of determining the right to appeal.

A second jurisdictional argument raised by the personal representative is that there was no issue jurisdiction before the District Court and before us, because no written objections were filed by the Objectors to any of the accountings made by the personal representative. Without pleadings, the personal representative argues, no issues were defined, and without issues there is nothing on which an appeal can be based.

The provisions of the Uniform Probate Code as adopted in Montana do not provide for the filing of written objections by Objectors to an accounting by a personal representative. Section 72-3-1001, MCA, provides that in a formal proceedings (which includes supervised administration under § 72-3-406) the petition may request the court to consider the final accounting and approve the same. Section 72-3-1001, MCA, also provides that after notice to all interested persons and hearing, the court may enter appropriate orders. Section 72-3-1005, MCA, requires a final accounting before an estate may be finally closed. When notice is required under the Uniform Probate Code, it must be given in conformity with § 72-1-301, MCA, which notice makes the subject of the order binding as to all persons given notice of the proceedings. Section 72-3-111, MCA.

With respect to the accountings here, the Objectors, after due notice given, appeared at the times of the hearings (but only by counsel at the August 30, 1988 hearing) and examined witnesses produced by the personal representative, and by themselves. In subsequent briefs provided to the District Court, the Objectors set forth their contentions with respect to the proposed accountings and distribution. Thus the situation relating to issues raised by Objectors in a probate proceeding is much the same as issues raised by any appellants in this Court. The notice of appeal in the appellate case simply vests this Court with jurisdiction. Thereafter, the issues are defined by those stated in the appellant’s brief, provided that the issues were also presented to the District Court. Since we have no other statutory authority in the matter, and it appears otherwise proper, we will consider the issues raised by the Objectors in their various briefs before the District Court as the issues for consideration by us. In like manner, as to issues not raised before the District Court and now raised on appeal (there are some) we will follow the usual appellate rule that unless the issue is raised and considered before the District Court, it cannot be considered by us on appeal. We hold therefore that there is issue jurisdiction both before the District Court and before us.

Objectors’ Issues

Having said the foregoing, we find that the issues raised by the Objectors here are somewhat difficult to define. The issues on appeal are stated generally by the Objectors as follows:

“1. Did the District Court err and abuse its discretion by allowing the August 5, 1988 final account of the personal representative, Margaret A. Barber, to be settled, allowed and approved?”
“2. Considering the nature and the scope of the August 30, 1988, hearing, together with the multitude of unresolved estate tax and income tax issues, did the District Court err and abuse its discretion by confirming and approving as correct and proper all of the actions and proceedings done and conducted in the estate of Gerald W. Barber by the personal representative, the estate’s attorney, and the estate’s accountants?”

The general statements of issues foregoing do little to inform the Court with specificity of the contentions of the Objectors. We are committed, however, by § 3-2-204(5), MCA, in all equity cases or proceedings of an equitable nature to review all questions of fact arising upon the evidence presented in the record, and to determine the same as well as to questions of law. With that statute in mind, we proceed to consider the issues we find raised in the record.

Abatement Proportions

In its order of January 12, 1988, the District Court concluded that interest earned during the probate be apportioned one-half to the widow and one-half to the Objectors. (Note: This proportion does not offend the provisions of the Will; it will be explained in the discussion below of the payoff on the contract for sale.) The District Court at the same time concluded that the proportional value of the specific devises for abatement purposes would be 55.387 percent for the children (Objectors) and 44.613 percent to the widow (personal representative).

Objectors contend on appeal that the latter ruling constituted an “accounting virus” and carried through to the rest of the accountings. They contend that the accountings failed to conform to the statutory requirements of §§ 72-25-403, 72-25-404, 72-25-407, and 72-25-411, MCA. Thus, the appellants’ brief reads, “The personal representative and her legion of professional advisers have failed to take all steps reasonably necessary for the management, protection and preservation of the estate in their possession.” What the Objectors’ appellate brief does not reveal is how the accountings do not conform to statutory requirements or how they abuse the personal representative’s duty of management, protection and preservation of the estate.

The District Court found that the abatement statute, § 72-3-901, MCA, applied because the residue of the estate and the interest accrued was insufficient to pay all expenses and disbursements. The District Court utilized the values of specifically devised property as between the widow on one hand and the Objectors on the other to determine those proportions to be 55.387 percent for the children, and 44.613 percent for the widow.

Section 72-3-901(2), MCA, provides that abatement within these classifications “is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the Will.” It appears that the District Court followed this statute in determining the proportions for abatement. The Objectors do not show us in any particular that the proportions were wrongly computed.

We are unable to fathom how the accountings do not conform to the statutory requirements of §§ 72-25-403, -404, -407, and -411, MCA. These statutes are part of the Revised Uniform Principal and Income Act, applying to estates, trusts, and fiduciary relationships. Section 72-25-404, MCA, provides that in estates, as far as specific legatees are concerned they shall receive the income from the property bequeathed or devised to them respectively, less taxes and ordinary expenses of the estate; and as to all other legatees and devisees, the balance of the income, less taxes and ordinary expenses of management in proportion to their respective interests in the undistributed assets. In this case, the District Court, by providing that all interest shall be divided one-half to the widow and one-half to the children, determined that the interest earned from estate bank accounts should be distributed in accordance with the proportional interest in the residue estate, one-half to the widow, and one-half to the children. The apportionment of income is therefore in accordance with § 72-25-404, MCA. The apportionment of abatement is in accordance with § 72-3-901, MCA. These statutes relate to two different subjects and, as in this case, do not necessarily coincide. We uphold the proportions decided by the District Court.

The testimony in the case showed that the estate computed the interest earned during the probate based on the money that came in from specific bequests, property and the interest earned thereon. The money from the property specifically devised for the widow exceeded by some $7,000.00 the money which came from the property specifically devised to the Objectors. There were no countervailing computations made by the Objectors.

As an aside, we note that the provisions of the revised Uniform Interest and Income Act were not raised in the District Court and are raised for the first time on appeal.

Payment of Fees; Repayment of Loans

On December 30, 1987, the personal representative paid out of funds of the estate $7,500.00 to herself as part of her personal representative fee; $12,000.00 to herself as part of the principal of loans she had made to the estate; and $12,000.00 to Donald E. Ronish as a part of his claimed attorneys fee.

At the July 9-10, 1987 hearing, the Objectors challenged the subject of undocumented loans by Margaret Barber to the estate, and challenged the appropriateness of fees and expenses charged by both the personal representative and the estate’s attorney. The District Court did not enter its first order approving the final report of the personal representative until January 12, 1988. Thus, the Objectors now contend that the payments were improper without the prior approval of the court, and that the payments constituted a distribution of the estate to Margaret Barber, which represented a conflict of interest, self-dealing, and “just plain selfishness,” and a violation of the estate attorney’s duty to avoid self-serving conduct. The appellants’ brief points to the admission of the estate attorney that he had procured the payment to himself in order to accomplish his personal income tax plan for 1987.

In the District Court’s order of December 14,1988, it held that the payments to the estate’s attorney and the personal representative of the respected fees were merely payments to creditors of the estate and were approved.

There isn’t any doubt in this case that the personal representative, the widow of the decedent, made loans to the estate. The loans were necessary because the payments on the farm contract were not coming in, federal and state taxes had to be paid, and other expenses made the loans necessary. The District Court eventually found that she had made loans totaling $14,633.00 to the estate, and that she was entitled on those loans to receive interest of $4,730.15 to February 1, 1987, plus $4.01 per day thereafter until paid.

Objectors contend that because this was a supervised administration, such payments should not have been made without a prior order from the District Court. The personal representative, however, in a supervised administration is not so restricted. Section 72-3-404, MCA, provides that a supervised personal representative has, without interim orders approving the exercise of a power, all powers of personal representatives under the code, except that a personal representative may not make a distribution of the estate without the prior order of the court. As the personal representative in brief points out, under § 72-3-613(18), MCA, the personal representative has the power to pay her own compensation and other expenses incident to the administration of the estate; under Subsection (26) of the same statute, the personal representative has the power to satisfy and settle claims. Section 72-1-103(4), MCA, states that “claims” include liabilities of the estate and “expenses of the administration.” The loans were liabilities of the estate which arose after the death of the decedent, and the personal representative fees and attorney fees are expenses of administration. The personal representative has statutory power to pay these amounts without a prior order of the court. Without burdening this opinion with figures, we determine that the compensation of the personal representative eventually allowed by the court was well within the limits prescribed in § 72-3-631, MCA, and that the compensation of the attorney so approved, was within the limits set out in § 72-3-633, MCA. The part payment of those fees on December 30, 1987, was not improper in this case.

We do not find any conflict of interest or violation of ethics by either the personal representative or the attorney. In each case the partial payments were far less than the amounts that they were eventually entitled to, the payments did not affect in any way adversely the administration of the estate, and were just claims against the estate for which there was a right of eventual payment in full. In fact, such expenses of administration enjoy a first priority to the assets of the estate. Section 72-3-807, MCA.

The appellants’ brief characterizes the payments to the personal representative and to the estate’s attorney as “knowing, flagrant acts of conflict of interest, self-dealing, and arrogant selfishness,” but there is absolutely no substance to such charges.

Settling the Personal Representative’s Final Accounts

The next contention of the Objectors is that the District Court erred in concluding that “all acts and proceedings done or conducted in this estate by the personal representative, the attorney and accountants were correct and proper in the same are hereby confirmed and approved.” Objectors also contend that the District Court should not have approved the final accounts of the personal representative before ascertaining that the Federal Internal Revenue Code was complied with.

The Objectors shotgunned twelve claimed issues under this caption, which we will take up separately:

“(1) Whether the estate erred and violated the Federal Internal Revenue Code by reporting that the estate was terminated as of December 31, 1986, when there were still monies to be distributed to the estate’s beneficiaries.”

When the Senef contract was paid off during the probate of the estate, the personal representative had on hand $745,794.56 of which $660,000.00 was allocated to principal, and the balance to interest income. The contract was a principal asset of the estate and when the payoff was received, distribution of part of the major assets was possible.

The money received on the Senef contract represented an 85.8 percent capital gain to the estate. The federal tax laws were substantially changed with respect to capital gains, taking effect in 1987. By distributing the proceeds of the Senef sale before December 31, 1986, the estate was able to take advantage of the 60 percent deduction allowed for capital gains up to December 31, 1986 with the balance taxable at 20 percent. The attorney for the estate estimated that if the distribution occurred after December 31, 1986, under the change relating to capital gains in tax laws, an additional substantial amount in federal taxes would be owed by the estate.

In addition, it was the intention of the personal representative and the estate attorney to distribute the remaining 15 percent of the estate assets within 65 days from December 31, 1986, which under federal regulations could be construed as having been distributed before December 31,1986. The objections of the Objectors made use of the 65 day rule impossible.

Federal regulations prohibit unduly prolonging estate proceedings for federal income tax purposes and the estate will be deemed closed for that purpose after expiration of a reasonable time for completion of administration and when all property is distributed except a reasonable amount set aside in good faith for payment of unascertained or contingent liabilities and expenses. I.R.S. Regulations §§ 1.641(b)-3(a).

Under Montana law, an estate shall be closed within two years of the date of the appointment of the personal representative. Section 72-3-1015, MCA. At the time when this estate was closed for income tax purposes, the estate had been in probate for more than four years. By the end of 1986, all income producing property had been distributed and the amount held back by the personal representative was that amount adjudged necessary to pay the remaining expenses of the estate.

Counsel for the Objectors contends that after December 29, 1986, there was money in the estate that was ultimately distributed to the estate’s beneficiaries. It contends therefore the estate was not terminated for tax purposes as of December 31, 1986, which would result in a shift of $660,000.00 of taxable income from 1986 to 1987. This contention is completely unexplained or supported by any authority from counsel for the Objectors.

“(2) Whether the Internal Revenue Service form 1041S filed on behalf of the estate of Gerald W. Barber ‘trust’ for the years 1987 and 1988 was a false and fraudulent income tax return?”

In completing reports for income tax purposes after December 31, 1986, the estate utilized form 10415 which is normally used by trusts and fiduciaries but which had a blank for “estate” which was checked in each of these cases. Objectors contend that no trust had been established under the will or otherwise and therefore the forms were false and fraudulent.

This purported issue is nothing more than picayunish nitpicking. The accountant testified that he utilized the forms for the purpose of making required reports of income taxes to the federal government and that these were the forms which were available.

“(3) Whether all of the assets of the estate of Gerald W. Barber have been properly probated. Specifically, the estate’s share of the contractual net down payment in the amount of $71,215.00 received from Rusty Senef on October, 1982, which was not properly classified on the estate’s Internal Revenue Service form 706.”

The use of the term “not properly classified” is not otherwise explained in the Objectors’ brief. Before the District Court, the Objectors contended that the $71,215.00 received by the testator during his lifetime was actually a part of the estate, and subject to distribution through the estate. The answer, of course, is that the down payment, received by him during his lifetime, belonged to the decedent to do with it as he wished. This was the item, as reported earlier, that the decedent used before his death, to purchase an annuity in joint tenancy with his wife. No probate court has the power to reverse that transaction or to classify the payment as anything but a payment received by the decedent during his lifetime to be spent at his entire discretion.

“(4) Whether the failure of the personal representative to design, implement and maintain a fair and accurate accounting system violated generally accepted accounting principles for the matching of income and expense to the proper beneficiary. By failing to do so, the personal representative did not properly segregate the assets, income and expenses relating to each beneficiary’s individual share of the estate based on each person’s specific bequest and/or devise.”

There is no statutory or other requirement that a personal representative maintain a separate account for each heir devisee named in a will or entitled to succeed by right of succession. Entirely lacking from appellants’ brief is any indication that any devisee received more or less under the general accounting system used by the personal representative than that person deserved.

“(5) Whether the 1982 Federal and State income taxes for the decedent and his wife, the personal representative herein, were properly allocated between the personal representative and the estate. The 1982 farm income, in the amount of $62,134.00 should have been allocated to Margaret Barber on the basis of her 25 percent ownership in the Senef farm land.”

When Gerald Barber, the decedent, deeded 640 acres of his farm property to his wife, which was construed to be a 25 percent ownership of Barber’s farm holdings, the crops had already been harvested. There was no other income in 1982 accruing to the farm properties after the deed given to Margaret Barber. She was not entitled to any of the income on the crops harvested before her deed, and the estate was not bound to allocate any of that income to her.

“(6) Whether the undocumented loan by Margaret A. Barber in the amount of $9,983 and the interest charged thereon was an ordinary and necessary expense of the estate if the loan was based on the improper allocation of the 1982 Federal and State estate income taxes.”

As discussed under paragraph (5) above, the allocation of the 1982 Federal and State income taxes was not improper. The District Court found a valid loan necessary for the payment of income taxes and that the same was a proper burden of the estate. There is no basis for this contention.

“(7) Whether the failure of the personal representative to properly consider the 1982 crop insurance proceeds due to her 25 percent ownership in the Senef farm land was a distortion of income and expense.”

The Objectors fail to show any pertinence to this paragraph.

“(8) Whether the personal representative failed to properly allocate 1982 Federal self-employment taxes and the recapture taxes between the decedent and herself, resulting in the estate paying part of her personal income tax obligation.”

The Objectors here are simply ringing the changes on an old theme.

“(9) Whether the interest paid by the estate on the personal representative’s undocumented loans to the estate was an ordinary necessary tax deduction considering that the estate paid an above-market rate of interest when they had the clear and unequivocal cash resources to pay off such advances.”

The District Court found that the loans were indeed proper, had been made to the estate when it was necessary for the estate to borrow money to pay necessary taxes and expenses and it awarded interest based on statutory amounts. Again, this purported issue has no substance.

“(10) Whether the estate can take an ordinary, necessary tax deduction for a personal representative’s fee and expenses which have not been documented in accordance with Internal Revenue Code § 274(d). By failing to keep a diary, or submit any other written documentation or reference in this estate, the personal representative’s fee and expenses can be questioned as improper, ordinary and necessary expense.”

We doubt it.

“(11) Whether the attorney fees paid to Donald E. Ronish is a proper deduction for the following reasons:
“(a) Because the entire amount of Mr. Ronish’s fee was allocated to the estate, even though he served the personal representative in her individual capacity throughout this probate.
“(b) Because part of the fee could be classified as excessive, and thus nondeductible, considering the relevant factors involved with ‘reasonable compensation’ issues.”

In this complicated and large estate made more complex by counsel for the Objectors, the District Court approved an attorney fee for services rendered to the estate which was less than the amount that could have been awarded by statute.

The District Court found that the personal representative and the attorney, at the outset of the administration of the estate, entered into an oral agreement for an attorney fee based on the following:

“On the sum of $120,482.39 of life insurance proceeds, no fee would be charged;
“On the decedent’s one-half of the joint tenancy property, a fee of 2 percent thereof would be charged;
“On the rest of the estate the statutory schedule set forth in § 72-3-633, MCA, would be charged, namely 414 percent on the first $40,000.00, and 3 percent on the remaining.”

The District Court found that the fee as computed was less than the statutory fee that could be awarded.

We find the fee to be a proper deduction from the assets of the estate.

“(12) Whether the estate properly calculated its ‘distributable net income’ deduction for its short period tax year ending December 31, 1986. By failing to make a distribution of specifically bequested monies to Jerry F. Barber, Barbara A. Snooks and Ted L. Barber in the amount of $4,000.00 from the Twin Butte Ranch which was received by the estate on December 29, 1986, when the aforementioned persons were by operation of a Personal Representative’s Deed, the clear and lawful owners of the income asset in question, the estate erred.

There is no explanation in Objectors’ brief for this claimed issue. The respondent’s brief indicates that the $4,000 represented the estate’s share of the 1982 income from the Twin Butte Ranch and so was not an item that went with a deeded distribution. “Segregated crops do not go with a deed to the land,” Respondent answered.

After concluding the foregoing twelve claimed issues, Objectors’ brief contends that the estate should not be settled, allowed and approved until the estate, the personal representative and the Internal Revenue Service have concluded their involvement. The Objectors’ ask for the appointment of a special master to handle the estate meanwhile. This, although a closing letter from the Internal Revenue Service had been issued to this estate on April 3, 1985.

Conclusions

The Objectors have failed to show before the District Court or on appeal any discrepancy or error in the final account of the personal representative; any error in the distribution of the estate; any error in the proportions found by the District Court as to abatement or as to the distribution of income; or any error on the amounts of attorney fees or personal representative fees paid in the estate. In most instances the Objectors raised a completely without weight issue based on some unsupported speculation that someday, somewhere the Internal Revenue Service will come back and find some error in the method of handling this estate. The District Court refused to prolong the proceedings on that premise and so does this Court. We affirm as against the appeal of the Objectors.

Cross Appeal

The estate cross appeals from the decision of the District Court that additional attorney fees for extraordinary services should not be granted here. The District Court found all of the attorney services in this estate were ordinary services, and did not warrant an additional fee. The question here is whether the attorney rendered extraordinary services in the conduct of this estate for which he should receive further compensation beyond his contract. We so find, and reverse the District Court on this point.

The personal representative of an estate can contract for an attorney’s services, and the estate is bound by such contract if it is fair and equitable. In Re Estate of Magelssen (1979), 182 Mont. 372, 597 P.2d 90. Such a contract does not preclude the award of additional fees where the services rendered to the estate by the attorney are extraordinary in nature and reasonably necessary for the good of the estate.

In the circumstances here, the following consisted of extraordinary services to the estate:

The Personal Representative

The will of decedent appointed his wife, Margaret A. Barber, to be the personal representative. If she were unable to act, the will appointed Barbara A. Snooks, the decedent’s daughter, as personal representative. Pursuant to the will, Margaret A. Barber was appointed personal representative on December 16, 1982.

On August 8, 1983, Barbara A. Snooks, the daughter, petitioned the District Court to be co-personal representative, alleging that she had been unable to get information from the personal representative, that the attorneys fee was excessive, and that the personal representative and her attorney had failed to utilize all of the income tax elections available to the estate. After a hearing and briefs submitted, the District Court denied the petition of August 29, 1983 for appointment of a co-personal representative.

The Senef Contract

On November 25, 1986, the personal representative petitioned the court for approval of the offer of Russell Senef to pay off the balance due on the contract for sale for the Barber farm. As we indicated in the foregoing, the principal balance due at the time on the contract was $836,960.00. The proposed offer came to $745,794.56. This represented 75 percent of the principal balance due and accrued interest to December 1,1986. In order to facilitate the acceptance of the offer, the personal representative offered to waive her 25 percent of the payment which was due to her under the contract, and to accept instead one-half of the settlement, the other half to be divided between the remaining heirs equally. Thus, what the heirs would receive under the proposed offer, and the agreement by the personal representative to waive her portion, was everything that they would have received under the contract if it had been paid out by the buyer during the lifetime of the widow.

The petition for approval of the proposed offer further sets out undisputed facts at the time, that the farm was losing profitability, a farm recession was occurring in the State at the time, and it was to the best interests of the estate to negotiate a settlement of the contract for sale. Further, under the proposal, the personal representative would distribute $660,000.00 of the payment immediately, one-half going to her, and each of the Objectors receiving $110,000.00 cash payment. Eventually the District Court approved the offer, the money was received, and the distribution made and accepted as proposed. This approval was given, however, over the strong objections of the Objectors, acting through their counsel.

After the court approved the offer on December 29, 1986, the Objectors filed a Rule 59(g) motion to alter or amend the judgment contending that they were not forewarned about the pending distribution. Counsel for the personal representative filed a brief opposing the Rule 59(g) motion and the Objectors, purportedly acting under Rule 12(f), M.R.Civ.P., moved to strike portions of the brief as impertinent and scandalous. On February 18, 1987, the District Court denied the Rule 59(g) motion, and denied the Rule 12(f) motion on the grounds that the latter rule applied only to pleadings and not to briefs.

The Final Accounts

We have chronicled in the first part of this opinion the objections of the Objectors to the first and final accounts of the personal representative. Two hearings were required on those objections, one lasting two days and the other a full day in court, and full briefs were required. The District Court found no substance in the objections made by the Objectors.

The Appeals

In addition, there have been four appeals to this Court, including the present appeal. The first appeal involved an attempt by the Objectors to force a partial distribution of the estate, which was denied in the District Court. This Court affirmed on appeal. Estate of Barber (1985), 216 Mont. 26, 699 P.2d 90.

Two subsequent appeals to this Court were dismissed. The present appeal has no substance as the foregoing portion as this opinion indicates.

The District Court file is a record of obstreperous, obstructive and groundless objections to all steps and proceedings undertaken by the personal representative which required of counsel for the estate continual briefings, correspondence, and court appearances in order to keep the estate moving. We have here a record not of ordinary attorney services in the conduct of an estate proceedings, but rather one involving extraordinary services brought about by the actions of the Objectors.

The blame for the detrimental objections to the progress of an ordinary estate can not be laid entirely at the feet of the Objectors. The District Court file, and the appellate record evince that the attorney for the Objectors is essentially responsible for the troubles in this estate.

We therefore determine that the extraordinary services rendered by the attorney for the estate require an additional fee of $3,000.00. This, however, shall not be a burden on the estate itself. One-half thereof shall be the joint and several burden of the Objectors, personally, and the other half shall be paid by counsel for the Objectors, Philip P. McGimpsey.

Disposition

The judgment of the District Court approving and allowing the several accounts of the personal representative, and providing for distribution and the fixing of attorney and personal representative fees for their ordinary services is by this Court affirmed. That portion of the judgment, however, which denies the attorney for the estate an additional fee for extraordinary services is by this Court reversed. On remand the District Court shall enter judgment in favor of the attorney for the estate for the sum of $3,000.00, one-half thereof to be the joint and several responsibility of the Objectors, Ted L. Barber, Barbara A. Snooks, and Jerry F. Barber; and one-half thereof the responsibility of the attorney for the Objectors, Philip P. McGimpsey.

JUSTICES WEBER, HARRISON, HUNT and McDONOUGH concur.


author: JUSTICE GULBRANDSON JUSTICE SHEEHY,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TONI LEA OTTWELL, Defendant and Appellant.
    No. 89-130.
    Submitted on Briefs July 7, 1989.
    Decided Sept. 14, 1989.
    779 P.2d 500.

      Michael Donahoe, Helena, for defendant and appellant.
    Marc Racicot, Atty. Gen., James Yellowtail, Asst. Atty. Gen., Mike McGrath, Co. Atty., Carolyn A. Clemens, Deputy Co. Atty., Helena, for plaintiff and respondent.
   JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The jury empaneled in the District Court for the First Judicial District, Lewis and Clark County, found Toni Lea Ottwell, the defendant, guilty of felony assault pursuant to § 45-5-202(2)(b), MCA. The District Court sentenced the defendant to ten years at the Montana State Prison and suspended the sentence in its entirety subject to conditions. Defendant appeals. We affirm.

The issues raised on appeal are:

1. Whether the exclusionary rule bars admission of evidence of a person’s criminal conduct which occurred in response to a Fourth Amendment violation.

2. Whether a defendant who knowingly or purposely causes reasonable apprehension of serious bodily injury by use of a weapon is properly charged with felony assault pursuant to § 45-5-202(2) (b), MCA.

3. Whether the District Court erred by instructing the jury as to the definition of the term “knowingly,” as set forth in § 45-2-101(33), MCA, when a defendant is charged under § 45-5-202, MCA, with felony assault.

4. Whether the defendant was denied a fair trial under the doctrine of “cumulative error.”

In December, 1987, Toni Lea Ottwell, the defendant, was a resident at the Mountain View School, a girls’ correctional facility located north of Helena, Montana. Ottwell and four other residents of the school escaped from the facility on December 24, 1987. Two of the girls were apprehended the following day in Helena. The remaining escapees, including Ottwell, obtained a .44 magnum caliber handgun from a residence in Clancy, Montana, returned to Helena and rented a room at a local hotel.

On December 26,1987, two members of the Mountain View School staff, William Unger, Superintendent, and Don Thompson, Social Worker, discovered that the girls were at the hotel. Unger and Thompson went to the hotel, confirmed with the hotel manager that the girls were in the hotel, and were given a key to the girls’ room by the manager. After Unger knocked on the door of the girls’ room and identified Ottwell’s voice, he used the key to open the door and both men entered the room. Unger told the girls to get ready, that he was taking them back with him. Shortly thereafter Ottwell picked up the loaded handgun and pointed it at the two men. She told Thompson to close the door and stated that the gun was loaded and that she wasn’t afraid to use it. Thompson refused to close the door but after a few minutes of trying to persuade Ottwell to put down the gun, Unger and Thompson left the room. Ottwell and the other two girls escaped through the hotel window and were apprehended by the police later that evening.

Ottwell, a minor, was charged as an adult with the offense of felony assault by an Information filed in the District Court for the First Judicial District, Lewis and Clark County. A jury trial commenced on May 31, 1988 and on June 1, 1988, the jury returned a verdict of guilty. On October 25, 1988, final judgment and sentence was entered. Ottwell was sentenced to ten years at the Montana State Prison. The District Court suspended Ottwell’s sentence in its entirety subject to conditions. Ottwell appeals.

The first issue raised on appeal is whether the exclusionary rule bars admission of evidence of a person’s criminal conduct which occurred in response to a Fourth Amendment violation.

Ottwell argues that the entry of her hotel room by Unger and Thompson was unconstitutional and that evidence of all events subsequent thereto, including her felonious assault, should have been suppressed. The facts are undisputed that Unger and Thompson, state employees from the girls’ correctional facility, entered Ottwell’s hotel room without permission or without a warrant. Nonetheless, assuming arguendo that an illegal entry occurred, we uphold the District Court’s decision to deny Ottwell’s motion to suppress evidence of her criminal conduct which occurred in response to a Fourth Amendment violation.

The Fourth Amendment of the United States Constitution and Article II, § 11 of the Montana Constitution affords all persons the freedom from unreasonable governmental searches and seizures. Thus, absent exigent circumstances, police officers and other government officials must obtain a search warrant based upon probable cause before entering a home or making an arrest. Payton v. New York (1980), 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639, 653; State v. O’Neill (1984), 208 Mont. 386, 393, 679 P.2d 760, 763-64. The exclusionary rule, which bars evidence obtained as a result of an unconstitutional search or seizure, is the primary vehicle which helps to ensure protection from an unreasonable governmental search or seizure. Wong Sun v. United States (1963), 371 U.S. 471, 484-85, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441, 453. However, courts have refused to extend the exclusionary rule to suppress evidence of a person’s independent criminal conduct which occurred in response to an unconstitutional search or seizure. See, e.g., People v. Klimek (1981), 101 Ill.App.3d 1, 56 Ill.Dec. 403, 427 N.E.2d 598; State v. Boilard (Me. 1985), 488 A.2d 1380; State v. Burger (1982), 55 Or.App. 712, 639 P.2d 706; State v. Kittleson (Minn. 1981), 305 N.W.2d 787; Commonwealth v. Saia (1977), 372 Mass. 53, 360 N.E.2d 329. Likewise, under the facts of this case, we refuse to extend the exclusionary rule to suppress evidence of a person’s assaultive conduct towards a state employee who committed a Fourth Amendment violation. Such evidence does not constitute the “fruit of the poisonous tree” and thus the purpose of the exclusionary rule — to protect a person from unreasonable searches or seizures through suppression of evidence — would not be accomplished by its application in such a situation. On the contrary, to allow a person whose Fourth Amendment rights were violated to respond with unlimited violence towards the violator and then to grant the person immunity via the exclusionary rule, would create intolerable results. Such a ruling would allow, and possibly even encourage, more violence. We therefore uphold the District Court’s decision to deny Ottwell’s motion to suppress evidence of Ottwell’s independent criminal conduct which occurred as a response to a Fourth Amendment violation.

The second issue raised on appeal is whether a defendant who knowingly or purposely causes reasonable apprehension of serious bodily injury by use of a weapon is properly charged with felony assault pursuant to § 45-5-202(2)(b), MCA.

Ottwell argues that the District Court erred by not granting her motion to dismiss on the ground that the Information, by its terms, only alleged misdemeanor assault as defined in § 45-5-201(1) (d), MCA. This statute provides in pertinent part that

“(1) A person commits the offense of assault if he:
“(d) purposely or knowingly causes reasonable apprehension of bodily injury in another. The purpose to cause reasonable apprehension or the knowledge that reasonable apprehension would be caused shall be presumed in any case in which a person knowingly points a firearm at or in the direction of another ...”

Specifically, Ottwell attempts to argue that the language of this misdemeanor statute — “shall be presumed in any case in which a person knowingly points a firearm at or in the direction of another” - is a conclusive presumption that prevents the State from charging a defendant with felony assault once the State proves that the defendant pointed a gun towards another. We disagree.

Ottwell fails to acknowledge the difference in proof between the misdemeanor assault statute, § 45-5-201, MCA, and the felony assault statute, § 45-5-202, MCA. The felony assault statute provides in pertinent part that

“(2) A person commits the offense of felony assault if he purposely or knowingly causes:
“(b) reasonable apprehension of serious bodily injury in another by use of a weapon . . .” (Emphasis added.)

Section 45-5-202(2) (b), MCA. The felony assault statute addresses the reasonable apprehension of serious bodily injury and the misdemeanor assault statute addresses the reasonable apprehension of bodily injury. The statutory definitions of “serious bodily injury” and “bodily injury” are drastically different and thus require a different degree of proof. See, §§ 45-2-101(5) and (59), MCA. Merely because the misdemeanor statute contains a presumption regarding a person who knowingly points a firearm at or in the direction of another, does not make the statute the exclusive vehicle for prosecution when such a conduct occurs. State v. Crabb (Mont. 1988), [232 Mont. 170,] 756 P.2d 1120, 1124, 45 St.Rep. 966, 971. A county attorney has the discretion to charge a defendant under either § 45-5-201, MCA or § 45-5-202, MCA, and a subsequent conviction will stand if the evidence supports the conviction.

On March 29, 1988, the County Attorney for Lewis and Clark County filed an Information alleging that Ottwell “purposely or knowingly caused reasonable apprehension of serious bodily injury in Bill Unger and Don Thompson ... by pointing a gun at them and threatening to shoot them . . .” The facts of this case supports the proposition that Ottwell knowingly or purposely used a weapon to cause reasonable apprehension of serious bodily injury. The District Court therefore properly denied Ottwell’s motion to dismiss.

The third issue raised on appeal is whether the District Court erred by instructing the jury as to the complete definition of the term “knowingly,” as set forth in § 45-2-101(33), MCA, when a defendant is charged with felony assault under § 45-5-202, MCA.

The definition of “knowingly” is set forth in § 45-2-101(33), MCA, as follows:

“ ‘Knowingly’ — a person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware of his conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when he is aware that it is highly probable that such result will be caused by his conduct. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence. Equivalent terms such as ‘knowing’ or ‘with knowledge’ have the same meaning.”

The jury was instructed, with respect to the term “knowingly,” as follows:

“A person acts knowingly:
“(1) when he is aware of his conduct; or
“(2) when he is aware under the circumstances, that his conduct constitutes a crime; or
“(3) when he is aware there exists the high probability that his conduct will cause a specific result; or
“(4) with respect to a specific fact, when he is aware of a high probability of that fact’s existence.”

Ottwell attempts to argue that not all of the definitions contained in § 45-2-101(33), MCA, apply to every alleged criminal violation and therefore the District Court erred in giving the entire definition when a person is charged with one specific crime. Ottwell argues that if charged under § 45-5-202(2)(b), MCA, the only part of the definition that is applicable is whether an actor purposely or knowingly caused a specific result, namely, the apprehension of serious bodily injury, which is found in Subsection 3 of the instruction. We disagree.

In Montana, a person does not need to “form the intent to commit a specific crime or intend the result that occurred to be found guilty of knowingly committing a crime.” State v. Blalock (Mont. 1988), [232 Mont. 223,] 756 P.2d 454, 456, 45 St.Rep. 1008, 1010. Conviction for the offense of felony assault thus does not require proof of specific intent. On the contrary, an instruction suggesting that specific intent to commit a felony assault is required would be erroneous. However, the District Court properly gave the jury the entire definition for “knowingly.” Previously, when the requisite intent was “knowledge” or “purpose,” this Court has held that the jury was entitled to a complete definition of “knowledge” as set out in the statute. State v. Larson (1978), 175 Mont. 395, 402, 574 P.2d 266, 270. We therefore uphold the District Court’s decision in instructing the jury on the entire definition for “knowingly.”

The last issue raised on appeal is whether the defendant was denied a fair trial under the doctrine of “cumulative error.”

The doctrine of cumulative error “refers to a number of errors which prejudice defendant’s right to a fair trial.” State v. Close (Mont. 1981), [191 Mont. 229,] 623 P.2d 940, 948, 38 St.Rep. 177, 187-88. Ottwell argues that five alleged errors prejudiced her right to a fair trial and therefore invoked the cumulative error doctrine. The first alleged error is that the District Court admitted, over Ottwell’s objection, the State’s Exhibit Number 1, a letter from Unger to Thompson. On appeal, Ottwell fails to argue the basis of her objection and then merely argues that the letter was not furnished by the State in discovery as a statement of a witness. The record demonstrates otherwise. The letter was read into the record by the District Court in the presence of Ottwell and her counsel on May 18, 1988, two weeks prior to the trial. In light of the record, Ottwell’s argument on this alleged error lacks merit.

The second alleged error is that the District Court admitted part of a written report prepared by Unger and given to a police officer. Specifically, Ottwell argues that a proper foundation was not laid for the admission of the recorded recollection. In light of the record, this assertion by Ottwell also lacks merit. At trial, Unger testified on cross-examination that he did not recall the exact statements Ottwell made during the hotel room incident. He also testified that he had previously given a statement to the police regarding Ottwell’s statements at a time when his recollection was more accurate. He identified a copy of his statement on redirect examination and was then allowed to read the relevant portion into the record. The statement in question therefore constitutes an exception to the hearsay rule under Rule 803(5), M.R.Evid. Determination of whether a proper foundation has been laid lies in the discretion of the District Court and may not be overturned absent a clear abuse of discretion. State v. McKenzie (1978), 177 Mont. 280, 303, 581 P.2d 1205, 1219. The record indicates that the proper foundational evidence was before the District Court at the time admission of the statement was requested and thus we find that the District Court did not abuse its discretion.

The third alleged error raised by Ottwell is that the District Court admitted evidence of additional assaultive behavior. Ottwell first attempts to argue that it was error to allow Unger to testify that, in his belief, Ottwell was capable of shooting him. Ottwell failed to object to this testimony at trial. The matter is therefore deemed waived under § 46-20-104(2), MCA. In addition, Ottwell asserts that Thompson was improperly allowed to testify that she pointed a gun at Thompson outside of the hotel room. Ottwell fails to state the reason for her objection to the foregoing testimony. We decline to provide a possible reason or explanation for Ottwell’s unfounded assertions. We therefore find that no error resulted under these allegations.

The fourth alleged error is that a statement made by Ottwell was improperly admitted into evidence. Another escapee testified that Ottwell stated that she should have shot her victims. Ottwell argues that this statement was hearsay and not relevant. We disagree. The statement is clearly a relevant indication of Ottwell’s state of mind and awareness of her actions. Further, the statement was made by Ottwell, a party to the case, and is therefore not within the definition of hearsay. See, Rule 801(d)(2)(A), M.R.Evid.

Ottwell also alleges that the District Court erred by admitting “other crimes” evidence in violation of State v. Just (1979), 184 Mont. 262, 602 P.2d 957. On appeal, Ottwell fails to identify the objectionable evidence and cites no authority. We therefore find that the District Court did not err on this issue. In light of finding no errors on the part of the District Court, we find that the cumulative error doctrine is not applicable in this case.

Affirmed.

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

JUSTICE SHEEHY,

dissenting:

Years ago, the Congress enacted a “no-knock” provision empowering federal agents (notably the FBI) to burst into rooms or apartments occupied by persons whom the agents suspected of crime. This patently unconstitutional law passed the U.S. Senate with but one dissenting vote. That dissenting vote, we can be proud to state, was cast by the Senator from Montana, the Honorable Lee Metcalf. The rest of the Senate bowed to what it perceived to be public pressure and forsook the Constitution.

Two years later an embarrassed Senate rescinded and revoked its erroneous actions.

This is a “no-knock” case and I dissent.

JUSTICE HUNT joins in the foregoing.