# Petition — Thomson v. Onstad > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1187%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 835 ## Text 7 Supreme Court, U.S ~ | FILED | JUN #4 1978 IN THE Supreme Court of the United Betis RODAK, JR., CLERK OcToBEny Pera, 18OU 4 NO. —oooea DoucLtas C. THomson Petitioner. Vs. L. JoHN Onstap, SHERIFF. GALLATIN County, MontTANA: and RoGerR Crist, WARDEN, MONTANA STATE PRISON Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT James H. Goetz, Eso. Goetz & Madden 522 West Main Street Bozeman, Montana 59715 Attorney for Petitioner OO a ae IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1977 — eS Oe a Oe 6 Oe Oe we ee ee oe oe or = ow DOUGLAS C. THOMSON, Petitioner, &. JOHN ONSTAD, Sheriff, Gallatin County, Montana; and ROGER CRIST, Warden, Montana State Prison, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT en eens Leon TABLE QF CONTENTS TABLE OF CITATIONS ............... PT I oo vecccccNcccceccn, SI cchiinhw informant whose reliability had not been previously tested. Judge Shanstrom’s examination of that informant on information known to the Judge made a reasonably reliable test of that information necessary to support reliability and thus probable - cause. Defendant cites United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752, and | Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, for the proposition that a “neutral and detached” magistrate is required. Neither case is applicable here. Both cases involved attorneys general, one without judicial approval; the other the attorney general acting as a justice of peace issuing his own search warrant, in effect. [3] The second prong of the defendant's attack is that the — ——* ee —— A-18 164 STATE v. THOMSON 169 Mont. 155. the trial court is the judge of the weight to be given to the testimony adduced on a voir dire examination.” " Assumedly, the district court could have removed juror Gaab for cause even without a clear showing of impartiality if the court had any doubt as to the juror’s state of mind. Such a determination is within the sound judicial discretion of the court. Where the court does not exercise its discretion in removing a juror for cause when a challenge is made, this Court may reverse a Bonviction only where there is demonstrated a clear abuse of discretion. In the instant case no such abuse of discretion can be shown by defendant. While a fish and game warden is a law enforcement officer in a narrow sense, the authority of those officers is limited in scope by Chapter 1, Title 26, Revised Codes of Montana. Section 26- 110(2). R.C.M.1947, substantially states the law enforcement duties of wardens: “They shall enforce the laws of this state and the rules of the . commission with reference to the protection, preservation, and propagation of game and fur-bearing animals, fish and game birds.” The instant case deals with a violation of the general criminal law of the state of Montana, specifically the Montana Dangerous Drug Act. Prospective juror Gaab, as a game warden, has no connection with offenses committed in violation of the drug laws of this state. He has no power as a law enforcement officer in that respect and he stands as a private citizen. Without a showing of impartiality there can be no abuse in discretion by 7 the trial court in refusing to allow that juror to be removed for cause. {7} In State v. Cadotte, 17 Mont. 315, 316, 42 P. 857, 858 (1895), this Court found no error in refusing to remove a juror | for cause where the juror was a brother-in-law of the county attorney who was prosecuting. There the Court said: “Furthermore, the examination of this juror upon his voir dire does not at all tend to show any bias, either implied or actual.” ~~! Va OSOne™ A-19 STATE v. THOMSON 16S 169 Mont. 158. It is clear then that, unless the juror falls within one of the categories of section 95-1909, he will not be removed for cause without a showing of partiality. In this case there is not only no showing of partiality, there is not even an allegation of par- tiality. The bare fact of Gaab’s position as a game warden is not enough to create a doubt as to his impartiality, without more. The district court record indicates that Gaab was removed as a juror through a peremptory challenge by defendant. In Allison the Court recognized that even if a doubt did exist as to the juror’s state of mind, the fact that the defendant later removed the juror through the exercise of a peremptory challenge precludes the possibility of any prejudice to the defendant. In distinguishing State v. Sims, 51 N.M. 467, 188 P.2d 177, the Court stated: “* * * In the case at bar, however, the defendant had three | peremptory challenges left at the time the court overruled the challenge against the witness Leemhius and immediately following defendant's taking of exception to the court's overruling said challenge, the deferdant exercised his sixth peremptory challenge to remove said juror. In the case at bar the court did not, as in the Sims case, force the objectionable juror upon the | defendant after the latter had exhausted all his peremptory challenges, and so far as prejudice to the rights of the defendant is concerned, Leemhius did not sit on the jury which tried the defendant. The fact that defendant regarded jurors Jensen and Ronnin as undesirable gave him no right to have Leemhius ex- cused for bias in order that defendant might get rid of one or two other jurors, no showing having been made that those prospective jurors were not qualified.” Defendant was not entitled to the removal of Gaab as a juror for cause, and even if he had been so entitled he was in no way harmed in his defense since Gaab did not sit on the jury. [8] Next and last, defendant claims error in the answers in voir dire examination of jurors when juror Richard Cain was alleged to have answered in the negative a question as to whether any a Re eR ee ae ee ee a eee ee ee ee ee ee ee ee OTN Ce A-20 166 STATE v. THOMSON 169 Mont. 158. potential juror was a member of a law enforcement agency or connected with a law enforcement agency. Defendant then alleges that Mr. Cain was a member of the Police Commission of the city of Livingston. These allegations by defendant do not appear in the record. They come by way of counsel's affidavit. The state presented a counter-affidavit from juror Cain denying that such questions were even asked. Aside from the fact that a police commissioner under Montana law, Chapter 18, Title 1}, Revised Codes of Montana, 1947, is not a law enforcement officer and thus the answer would have been technically proper in any event, we do not accept affidavits to supplement an appellate record in this manner. State ex rel Woodahl v. District Court, Mont., 540 P.2d 312. Finding no error, the judgment is affirmed. MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICES JOHN C. HARRISON, HASWELL and DALY concur. A- 21 The Montana drug sale statute (54-132 R,.C.M,) 54-132. Criminal sale of dangerous a OF (a) A person commits the offense of a criminal sale of dangerous drugs if he sells, barters, exchanges, gives away, or offers to sell, barter, exchange or give away, manufactures, prepares, cultivates, compounds or processes any dangerous drug as defined in this act, (b) A person convicted of Criminal sale of dangerous drugs shall be imprisoned in the state prison for a term not less than one (1) year nor more than life. (c) Practitioners and agents under their supervision acting in the course of a professional practice are exempt from this section. | a A~ 22 The Montana drug possession statute (54- 133 R.C.M,) 54-133. Criminal possession of dangerous drugs. (a) A person commits the offense of criminal possession of dangerous drugs if he possesses any dangerous drug as defined in this act. (b) Any person convicted of a criminal possession of marihuana or its derivatives in an amount, the aggregate weight of which does not exceed sixty (60) grams of marihuana, or one (1) gram of hashish, shall, for the first offense, be guilty of a mis- demeanor and is punishable by a fine not to exceed one thousand dollars ($1,000) or by imprison- ment in the county jail not to exceed one (1) year, or by both such fine and imprisonment. A person convicted of a second, or subsequent, offense under this Subsection is punishable by a fine not to exceed one thousand dollars ($1,000) or by imprison- ment in the county jail not to exceed one (1) year or in the state prison not to exceed three (3) years or by both such fine and imprisonment. (c) A person convicted of criminal possession of dangerous drugs not otherwise provided for in subsection (b) shall be A-23 imprisoned by imprisonment in the state prison not to exceed five (5) years, (d) A person of the age of twenty-one (21)years or under, convicted of a first v*olation under this section shall be pre- sumed to be entitled to a deferred imposition of sentence, Jurisdiction under this section Shall be exclusively in the district court. A-24 The Federal Habeas Corpus Statute (28 U,S,C. 2241) § 2241. Power to grant writ ify (a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shail be entered in the records of the district court of the district wherein the restraint complained of is had. (b) The Supreme Court, any justice thereof, and any circuit judge may decline to entertain an application for a writ of habeas corpus and may transfer the application for hcaring and determination to the district court having jurisdiction to entertain it. (c) The writ of habeas corpus shall not extend to a prisoner un- less— : (1) He is in custody under or by color of the authority of the! United States or is committed for trial before some court there- of; or (2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or (3) He is in custody in violation of the Constitution or laws | or treaties of the United States; or (4) He, being a citizen of a foreign state and domiciled there- in is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any forcign state, or under color thereof, the validity and effect of which depend upon the law of nations; or (5) It is necessary to bring him into court to testify or for trial. (d) Where an application for a writ of habeas corpus is made by | a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the | application may be filed in the district court for the district wherein | such person is in custody or in the district court for the district | within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdic- | tion to entertain the application. The district court for the district | wherein such an application is filed in the exercise of its discretion | and in furtherance of justice may transfer the application to the | other district court for hearing and determination. June 25, 1948, c. 646, G2 Stat. 964; May 24, 1949, c. 139, § 112, 63 : Stat. 105; Sept. 19, 1966, Pub.L. 89-590, 80 Stat. 811. A-25 1 "On this 17th day of November, 1974, MLKE WARREN has person- ally appeared before me and having been sworn, deposes and Says: That the offense of Felony, to-wit: POSSESSION OF DANGEROUS DRUGS has been com- mitted: "That he has good reason to be- lieve and does believe that in and upon certain premises with- in the County of Park, State of Montana, particularly described as follows: the residence of DOUGLAS C. THOMSON, at 314 North Fifth Street, Livingston, Montana, that here have been and are now located certain items of Danger- ous Drugs, the possession of which constitutes a criminal offense, said dangerous drugs being speed, amphetamine, and hashish, a derivitative of marihuana. "That the facts which are the | grounds of this application and upon which applicant relies to establish probable cause for the issuance of a search warrant are: That one Paul Hallett, did on or about the 8th day of November, 1974, enter into the house located at 314 North Fifth Street, Livingston, Park County, Montana, then occupied by Douglas C. Thomson, and did obtain 25 hits of speed which was taken from a larger package and said Paul Hallett was also offered hashish, A- 26 all of which dangerous drugs were taken by said Douglas C. Thomson, from a kitchen drawer or were observed in said kitchen drawer; that said Paul Hallett has been informed within the last 12 hours that the dangerous drugs above described are still in the house located at 314 North Fifth Street, Livingston, Park County, Montana, “THEREFORE, the Applicant requests that a Search Warrant be issued, authorizing the search of the above described premises in the manner provided by law. “Mike Warren Applicant" “SUBSCRIBED AND SWORN to before me this 17th day of November, 1974 a Jack D, Shanstrom District Judge” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1187%3A1. Public record. Not legal advice.