Petition — Sandstrom v. Montana

RECEIVED

SEP 12 1973

IN THE SUPREME COURT OF THE UNITED STATES: or 1HE CLERK

SUPREME Court, U5,

OCTOBER TERM, 1978

NO

78-5384

DAVID SANDSTROM, Petitioner

-V-

STATE OF MONTANA, Resvondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF MONTANA

BYRON W. BOGGS

ATTORNEY FOR PETITIONER

212 East Park Avenue

Anaconda, Montana 59711]

ba

INDEX

Page

INE SS. oo no fo 056 4c nl oe ip ANE RAE dae wa. 1

CN TN ss hs 5 Ws» aK 6 0b vile s books Ue wuleu us 1

od i Sia kaw a wo WRI pha et 2

Constitutional Provisions Involved........................ 2

i MN A eR bs i. a Ue wdlals cae whwabll wee ee ache 2

nn Ce ORES WRG. ins cn vcdowhubncccckeabon. 5

I. THE JURY INSTRUCTION, "THE LAW PRESUMES THAT

A PERSON INTENDS THE ORDINARY CONSEOUFRNCES OF

HIS VOLUNTARY ACTS," DEPRIVED THE PETITIONER

OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF

THE LAW 5

II. THE MONTANA SUPREME COURT DECISION, IN

PETITIONER'S APPEAL, IS NOT IN ACCORD WITH

WINSHIP, MULLANEY, OR PATTERSON. 5

III. JURY INSTRUCTIONS, OF THE TYPE THE PETITIONER

HEREIN COMPLAINS, HAVE BEEN HELD BY A NUMBER

OF FEDERAL CIRCUIT COURTS OF APPEAL TO BE

VIOLATIVE OF DUE PROCESS OF LAW. 8

IV.. PRESUMPTIONS IN MONTANA HAVE THE WEIGHT AND

EFFECT OF EVIDENCE AND SHIFT THE BURDEN OF

PROOF TO THE DEFENDANT. 9

V.. THE ISSUE OF PETITIONER'S INTENT WAS PROPERLY

RAISED BY THE TRIAL EVIDENCE AND SHOULD HAVE

BEEN SUBMITTED TO THE JURY FOR A DETERMINATION

OF INNOCENCE, OR GUILT BEYOND A REASONABLE

DOUBT WITHOUT THE STATE HAVING BENFFIT OF A

PRESUMPTION. ll

Ne ee nn a LM ab ale ee bbae Bako 13

Appendix 4: Opinions Below

Opinion of the Supreme Court of Montana of June 8,

Eo eh Coc ee Gee Ea es occ cs 14

Rehearing Order of June 28, 1978...........0ecceeeeee 21

i Se i, Ses ie weeks oe cish emek oe 0 cha vik Oot 22

Journal ‘htry of Judgment of Judgment of July 25,

1877, of the District Court of the Third

Judileial District of the State of Montana....... 24

GUS na bad én ace OS 88 SET RM 6s de ER KOR Oks ESA aoe 26

Appendix B: Miscellaneous

aT eee Oe ee eke ae tinue hn Cea 27

TABLE OF CASES

Bloch w. United States,

? Cir. 1955).

Cohen v. United States,

] th Cir. 1967) cert. denied 389

U.S. 897 ¢ ).

In re Winship,

aT TS 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)

Manm v. United States,

319 F.2d 404 (5th Cir. 1963).

McKenzie v. Montana,

oS , 23 L.Ed.2d 1089, 97 S.Ct. 2968 (1977)

Monaghan v. Standard Motor Co 3

96 Mont. 165, 29 P.2d 278 (1934).

Morrissette v. United States,

5 # ; -Ct. 240, 96 L.Ed.288 (1952)

Mullaney v. Wilbur,

421 U.S. 684, 44 L.Ed.2d 508, 95 S.Ct. 1881 (1975).

Patterson v. New York,

% a ; L.Ed.2d 281, 97 S. Ct. 2319 (1977).

State v. Collins,

Mont. ‘ P.2d , 35 St. Rptr. 992 (1978).

State v. Garney,

122 Mont. 491, 207 P.2d 506 (1949).

State v. McKenzie,

Mont. , P.2d , 35 St. Rptr. 759 (1978).

State v. Sandstrom,

Mont. , 580 P.2d 106, 35 St. Rptr. 744 (1978).

State v. Schaefer,

35 Mont. 217, 88 P.792 (1907).

State v. Sharbono,

Mont. , 563 P.2d 61, 34 St. Rptr. 196 (1977).

United States v. Bertolotti,

: ap! hy

United States v. Berzinski,

t e. 1976). s

United Staites v. Chiantese,

560 F.2d 1244 (Sth Cir. 1977).

United States v. Frb,

. d Cir. 1976) cert. denied 429 U.S.

981 (1976).

« -ii-

| TABLE OF CASES (continued)

Page

United States v. Garrett,

‘ r. 1978). 8

United States v. Robinson,

245 F.2d 301 (2d Cir. 1976). 9

STATUTES

R.C.M. 1947, §94-5-102. 6

U.S. Const. Amend. XIV, § lL. l

MISCELLANEOUS

Mont. R. Hvuid. 301 (1977). 9

Webster's Wew Collegiate Dictionary 668 (6th ed. 1956). 10

———_

RECLIVED |

sep 12avre |

OFrrice OF THE CLERK

SUPREME COURT, ues

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

7 48-5384

DAVID SANDSTROM, Petitioner,

-V-

STATE OF MONTANA, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF MONTANA

To the Honorable, the Chief Justice and Associate Justices of the

Supreme Court of the United States.

David Sandstrom, the Petitioner herein, prays that a Writ oF

Certiorari issue to review the judgment of the Supreme Court of

Montana emtered in the above-entitled case on June 8, 1978.

OPINIONS BELOW

The Supreme Court of Montana has issued an opinion in this

case, a capy of which appears in Appendix A to this Petition, at

page 14. The opinion is officially reported at 35 St. Rptr. 744,

580 P.2d 106. The judgment of the Supreme Court of Montana is

printed im Appendix A hereto, infra, page 22: An order denying

rehearing is also included in Appendix A of this petition, at page

21. The Journal Entry of Judgment of the District Court of the

Third Judicial District of the State of Montana is printed in Appendix

A. hereto, imfra page 24.

JURISDICTION

The judgment of the Supreme Court of Montana (Appendix A infra,

page 22) was entered on Jume 29, 1978. The timely petition for re-

hearing was demiied on June 28, 1978 (Appendix A, infra, page 21). The

junisdiction af tthe Supreme Court is invoked pursuant to this Court's

ability to review and decide any title, right, privilege or immunity

specially set up or claimed under the Constitution of the United States.

28 U.S.C. §1257(3).

—

QUESTIONS PRESENTED

Did the Jury Instruction, "The law presumes that a person intends

the ordinary consequences of his voluntary acts," deprive the

Petitioner of his Constitutional right to due process of the law?

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the first section of the Fourteenth Amendment

ta the Constitution of the United States, which provides as

fallows:

"All persons born or naturalized in the United

States, are subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside. No State shall make

or enforce any law which shall abridge the

privleges or immunities of citizens of the United

States; nor shall amy state deprive any person

of life, liberty, or property, without due process

of law; nor demy to any person within its

Jurisdiction the equal protection of the laws." (emphasis addec

STATEMENT OF THE CASE

On November 1, 1976, Mrs. Annie Jessen, eighty-nine years of

age and a life-long resident of Anaconda, Montana, was found dead

in her home. She was the victim of an assault involving blows to

her head by a shovel and five stab wounds in her back from a

kitchen knife. Mrs. Jessen had also been sexually assaulted,

apparently after her death.

On or about November 22, 1976, Petitioner, David Sandstrom,

eighteen years of age, and also of Anaconda, was arrested with

regard to an unrelated burglary. Shortly thereafter, while in

custody of the Deer Lodge County Sheriff, Petitioner confessed to

the slaying, off Mrs. Jessen. This confession was later collaborated

by various eciriemstantial facts; the identification of a pubic hair

found on Mrs. Jessen as veing probably that of Petitioner's; and

by Petitioner leading Deer Lodge County law enforcement officers

to Warm Springs Creek in Anaconda where he had thrown the knife,

»

- oe ree tee

Based upon the confession and collaborating evidence, Petitioner -

was charged on December 2, 1976, with Deliberate Homicide in

that he, "purposely or knowingly caused the death of Annie Jessen."

[Informativu, Appendix B, infra, page 27}.

At. hijs arraignment on this charge, Petitioner entered a plea

of not gwilty and simultaneously filed a notice of intent to rely

on a mental disease or defect excluding responsibility for the

alleged crime. Pursuant to such notice, Petitioner was examined

by Dr. William Stratford, a psychiatrist practicing in Missoula,

Montama, and Dr. Michael Nash, a clinical psychologist practicing

in Bozeman, Montana. The reports of both doctors were in agreement

as to their evaluation of Petitioner's mental condition at the time

of the death of Mrs. Jessen. Both men found that Petitioner did not

suffer from a mental disease or defect which, under the Montana

Crimimal Code, would relieve him of responsibility for his acts.

Both nen did find, however, that Petitioner, a person of borderline

retarded intelligence, suffered from a personality disorder marked

by impulsiveness, aggressiveness, and a lack of planning. Additionally,

the doctors stated that the characteristics of Petitioner's person- ©

ality disorder, impulsiveness and aggressiveness, would be aggravated

to a serious degree by alcohol consumption. On the night the

Petitiener caused the death of Mrs. Jessen, evidence shows that

he had consumed between three and four six-packs of beer and some

whiskey. The doctors formed the opinion, after considering the

combination of Petitioner"s personality, the evidence of intoxication,

and the c»ircumstances surrounding the fatal acts, that Petitioner

did not intend the death of Mrs. Jessen. Based on the expert

opinions of iss. Stratford and Nash, Petitioner's attorney

informed ithe jjiry in his opening remarks that he no longer intended

to rely on a m@ttal disease or defect excluding responsibility, but

gather intended ito contest the allegation that Petitioner acted

knowingly or purposely in taking Mrs. Jessen's life.

Petitioner's trial commenced July 18, 1977. The Prosecution's

gase consisted of the confession together with collaborating evidence.

The defense, comprising the testimony of Drs. Stratford and Nash,

took the posture that the Petitioner did not have either "purpose"

or "knowledge" in causing Mrs. Jessen's death. Both experts supported

Petitioner's contention that he did not deliberately cause the death

of Mrs. .fessen and it was their opinion that Petitioner did not

form the specific intent required by law as an element of the

offense of Deliberate Homicide.

Following presentation of all the evidence, the Court included

in its instructions to the jury the instruction that, "The law

presumes that a person intends the ordinary consequences of his

voluntary acts." [Jury Instruction No. 5]. This instruction

requested by the Prosecution, was objected to by Petitioner's attorney

as contravening the Due Process Clause of the Fourteenth Amendment

of the Constitution of the United States by shifting the burden of

proof to the Petitioner on the issue of intent. The trial court,

however, overruled the objection.

The jury found the Petitioner guilty of Deliberate Homicide

and he was subsequently sentenced to one hundred years confinement

in the Montana State Prison. (Appendix A, infra, pp. 24,26). This

verdict was timely appealed to the Supreme Court of Montana. A

principal question raised in that appeal concerned the Constitution-

ality of Jury Instruction No. 5. See State v. Sandstrom, 34 St.

Rptr. at 746 (Appendix A,-infra, page 16). The Supreme Court of

Montana, hawever, affirmed the trial court's verdict in a decision

dated June 8’, 1978. In that decision, the Court stated that the

instruction was not violative of due process standards. State v.

Sandstrom, 590° P.2d at 109, 34 St. Rptr. at 748. (Appendix A, infra,

prime 20).

A timely petition for rehearing, again questioning the constitu-

tionality of Jury Instruction No. 5, was denied June 28, 1978.

(Appendix A, infra, page 21).

wha

aes

REASONS FOR GRANTING WRIT

I. TERE JURY INSTRUCTION, "THE LAW PRESUMES THAT A PERSON INTENDS

THE ORDINARY CONSFOUENCES OF HIS VOLUNTARY ACTS," DEPRIVED THE

nS a OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF THE

The Petitioner was charged with Deliberate Homicide under

Section 94-5-102(1) (a) of the Revised Codes of Montana: criminal

homicide committed "purposely or knowingly." Jury Instruction No.

5, "fhe law presumes that a person intends the ordinary consequences

of his voluntary acts." in effect, eliminated the element of intent

from the jurors' consideration thereby depriving Petitioner of

protections afforded under the Due Process Clause of the Fourteenth

Amendment of the Constitution of the United States. |

Under the Due Process Clause, a criminal charge must be

established by proof beyond a reasonable doubt of every element of

*

the offense. In re Winshiv, 397 U.S. 358, 362, 90 S.Ct. 1068, 1071,

25 L.Ed.2d 368 (1970).

"Let there remain any doubt about the constitutional

stature of the reasonable doubt standard, we

explicitly hold that the Due Process Clause

protects the accused against conviction except

upon proof beyond a reasonable doubt of ever

fact necessary to constitute the crime wit

which he is charged."* 397 U.S. at 364, 90 S.Ct.

at 1073 (emphasis added).

Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed.2d 508, 95 S.Ct. 1881

(1975), clarified Winship by declaring that a state could not, by

the use of presumptions, shift the burden of proof to the defendant.

See also, Patterson v. New York, 432 U.S. 197, 215, 53 L.Ed.2d 281,

295, 97 S.Ct.. 2319 (1977).

Maine homicide scheme which shifted the burden of proof to the

The Court, in Mullaney, rejected the

defendant to prove heat of passion on sudden provocation. The

Court refused the argument that, oftentimes, the burden upon the

prosecution to negate itite existence of heat of passion in a homicide

offense is too merous ad should vroperly be placed on the defendant.

"No dowbt this is often a heavy burden for the

prosecution to satisfy. The same mav be said

of the requirement of proof beyond a reasonable

doubt of many controverted facts in a criminal

trial. But this is the traditional burden.

which our system of criminal justice deems

essential." 421 U.S. at 701, 95 S.Ct. at 1891.

Accordingly, Jury Instruction No. 5, which required the jury

to presume intent from the “ordinary consequences of his voluntary

act," denied Petitioner his right of due process. The giving

of this instruction relieved the State of proving all the elements

of the Petitioner's alleged crime, specifically that he acted

purposely or knowingly, beyond a reasonable doubt. This instruction

precluded the issue of specific intent by requiring the jurors to

presume such intent from the acts of the Petitioner. "(T]he trial

court may not withdraw or prejudge the issue by instruction that

the law raises a presumption of intent from an act."' Morrissette v.

United States, 342 U.S. 246, 274, 72 S.ct. 240, 255, 96 L.Ed.288

(1952). “Where intent of the accused is an ingredient of the crime

charged, its existence is a question of fact which must be submit-

ted to the jury." Id...

In Montana, an element of Deliberate Homicide is that such a

homicide be committed "purposely or knowingly,’ R.C.M. 1947, §94-5-

102(1)(a). State v. Collins, Mont. ‘ P.2d ee

Rptr. 993, 999 (1978). The Language “purposely or knowingly" embodies

the concepts of ‘mens rea’ amd ‘criminal intent’. State v. Sharbono,

Mont. , 563 P.2d 61, 72-73, 34 St. Rptr., 196, 211 (1977).

The. jury net only had to find that the Petitioner caused the death

of Mrs. Jessen, but also, it had to find beyond a reasonable doubt,

in consideration of all the ewidence, that he caused her death

purposely or knowingly. Jury Instruction No. 5 eliminated the element

of specific inttant, purpose or knowledge, by requiring the jury to

presume such inteat from the consequences of Petitioner's act.

II. THE MONTANA SUPREME COURT DECISION, IN PETITIONER'S APPEAL,

I NOT IN ACOOURD WITH WINSHIP, MULLANEY, OR PATTERSON.

The opinion in Petitioner's appeal relied heavily upon a case

decided concurrently therewith by the Supreme Court of Montana;

-6-

State v. McKenzie, Mont. e P.2d » 35 St. Rptr. 759

(1978). McKenzie was decided upon remand from this Court. In

remanding, this Court directed the Montana Court to decide an issue

on the use of presumptions in light of Patterson v. New York, supra.._

McKenzie v. Montana, 433 U.S. 905, 53 L.Ed.2d 1089, 97 S.Ct. 2968

~ (1977). Im State v. McKenzie, the Supreme Court of Montana ruled

on: the Comstitutionality of the use of three jury instructions which

inferred or presumed intent in a Deliberate Homicide offense. 35

St. Rptr. at 778. One of the questioned presumption instructions

in McKenzie was identical to Jury Instruction No. 5; the jury

instruction the Petitioner herein contests. The Supreme Court of

Montana decisions in McKenzie and Petitioner's appeal, however, were

not decided in accord with Patterson.

Patterson, unlike McKenzie and Petitioner's appeal, concerned

affirmative defenses. The State of New York, as required by its

murder statute, had to prove beyond a reasonable doubt all the elements

of that offense; death, intent to kill, and causation. 432 U.S. at

205, 53 L.Ed.2d at 289. A murder defendant in New York, however,

has to prove, by a preponderance of the evidence, the affirmative

defense of extreme emotional disturbance for which there is a reason-

able explanation. 432 U.S. at 206, 53 L.Ed. at 289. Unlike Patterson,

in McKenzie and Petitioner's appeal, the basic statutory element of

intent in Deliberate Homicide is allowed to be presumed from the act

causing the death. The basic discrepancy between Patterson and the

Montana decisions in McKenzie and Petitioner's appeal, stems from

the fact timt "nothing was presumed or implied against Patterson."

432 U.S. at 216, 53 L.Ed.2d at 295. Patterson, in the area of

presumpt ions, neaffirmed Mullaney.

"Mullarey surely held that a State must prove

evesy -ngredient of an offense beyond a reason-

able dimbt, and that it may not shift the

burden of proof to the defendant by presuming

that ingredient upon proof of the other elements

of the offense." 432 U.S. at 215, 53 L.Ed.2d

at 295. (emphasis added)

By requiring the jury to presume the essential element of

intent from the act's of the Petitioner, the trial court and the

Montana Supreme Court denied Petitioner his Constitutional right

to have that element proven beyond a reasonable doubt.

The Supreme Court of Montana, in the Petitioner's appeal,

thus didi not decide the due process question on the use of

presumptions in criminal proceedings in accord with the Patterson,

Mullaney, or Winship decisions.

III. JURY INSTRUCTIONS OF THE TYPE THE PFTITIONER HEREIN COMPLAINS ,

WAVE BEEN HELD BY A NUMBER OF FEDERAL CIRCUIT COURTS OF APPEAL

TO BE VIOLATIVE OF DUE PROCESS OF LAW.

Three Federal Circuit Courts of Appeal have expressly forbid-

den the use of presumption instructions virtually the same as

Jury Instruction No. 5. The Fifth Circuit banned the so-called

'Mann* instruction, the same type of instruction the Petitioner

hereim contests, in 1963. Mann v. United States, 319 F.2d 404

(Sth Cir. 1963). That same Circuit, after fourteen years, reaffirmed

and strengthened its position against instructions presuming intent

in United States v. Chiantese, 560 F.2d 1244 (5th Cir. 1977).

"]. No district court in this circuit shall

include in its charge to the jury an instruction

on proof of intent which is couched in language

which could reasonably be interpreted as

shifting the burden to the accused to produce

proof of innocence." 560 F.2d at 1255.

The Third Circuit has also banned the use of this type of

instruction in the District Courts of that Circuit.

"Hereafter, district courts in this circuit shall

not use language in instructions that reasonably

can be interpreted as shifting the burden to

the accused to produce proof of innocence. This

includes charges indicating that the law presumes

a person to Intend the natural and probable

qo@nsequences oO 8 owing acts, as we as

@targes substantially similar to that given in

tikis case." United States v. Garrett, 574 F.2d

773, 782 (3d Cir. 1978) (emphasis added).

In Unite? States v. Bertolotti, 529 F.2d 149 (2d Cir. 1975),

the Second Circuit stated its view on the use of an instruction

which directed the jurors should presume that a person intends the

ws

——*

natural and probable consequences of his act.

“We have for many years warned a

gainst the us

= gg type of a charge and are somewhat soled

a ts continued use...[{We wish] to take this

Mg teenie to again stress our disapproval of

r natural and probable consequences' charge :

” and to remind trial judges that its continued

he m3 jeopardize otherwise sound convictions."

aon rite at 159. See also, United States v.

ee io Ba tha tela Cir. 1976) cert.

v. Robinson, 545 F.2d 301.306 (Zee “TST

Two other Federal Circuit Courts, the Ninth Circuit and the

Eighth Circuit, have also disapproved of intent-presumption

instructions which, for all purposes, are identical to Jury

Instruction No. 5. See, Bloch v. United States, 221 F.2d 786, 788-89

(9th Cir. 1955); Cohen v. United States, 378 F.2d 751, 755 (9th

Cir. 1967) cert. denied 389 U.s. 897; United States v. Berzinski

529 F.2d 590, 593-94 (8th Cir. 1976).

The rationale of all these Federal Circuit Court opinions is

that the burden-shiftine nature of intent-presumption instructions

deprives the defendant of due process of law. These Circuit Court

opinions are, of course, authority and precedent for the relief

the Petitioner now requests because due process protection is

required of the States through the Fourteenth Amendment to the

United States Constitution. The opinions of the Second, Third,

Fifth, Eighth, and Ninth Federal Circuit Courts of Appeal display

that this question ef federal substance and concern is deserving

of the attention and guidance of this Court; not only because it

is one of first impression, but also because it involves a vital

area of Constitutional protections.

IV. PI:SUMPTIONS IN MONTANA HAVE THE

Tr WEIGHT AND

AiNtD SHIFT THE BURDEN OF PROOF TO THE DEFENDANT. siratassees:

It Ss explicitly clear from early Montana Court rulings and

the Montama Bales of Evidence that a presumption has the weight and

effect of evidence and stands until controverted by a preponderance

of evidence to the contrary. Mont. R. Evid. 301 (b)(2) Commission

Comment (1977). Rule 301 of the Montana Rules of Evidence defines

-9.

presumption:

"A presumption is an assumption of fact that the

law requires to be made from another fact or

group of facts found or otherwise established

in the action or proceeding."" Id.(a) (emphasis added).

Rule 301 further describes the classification and effect of

disputable presumptions.

"A disputable presumption may be overcome by a

preponderance of evidence contrary to the pre-

sumption. Unless the presumption is overcome,

the trier of fact must find the assumed fact

im accordance with the presumption.” Id. (b)(2).

This rule codifies earlier Montana case law. See Monaghan v.

Standard Motor Co., 96 Mont. 165, 173-74, 29 P.2d 278 (1934).

Prior Montana case law, however, held that the use of presumptions,

in criminal proceedings, was improperly burden-shifting and mis-

leading. The Montana Court, for instance, prohibited the use of a

presumption identical to Jury Instruction No. 5 because it was mis-

leading to the jury. State v. Schaefer, 35 Mont. 217, 221, 88

P.792 (1907). State v. Garney, 122 Mont. 491, 493-95, 207 P.2d

506 (1949).

At Petitioner's trial, even though a presumption instruction

was used, there was not one instruction given which defined the

classification, nature, or effects of presumptions in criminal

proceedings. The commonly-accepted meaning of 'presume,' as used

in Jury Instruction No. 5, allowed the jury to believe the fact

presumed without proof. See Webster's New Collegiate Dictionary

668 'presume" n.2 (6th ed. 1956). In other words, Jury Instruction

No. 5 misled the jury to take for granted that the Petitioner had

the requisite intent if his act was proven as causing Mrs. Jessen's

death: The efffert of Jury Imstruction No. 5 was to direct the jury

to acuept, wittoat question, the existence of ‘purpose or knowledge’

in the Petitioner's act. This deprived Petitioner of his ‘due

process right to have every element of the charge against him

proved thtyond a reasonable doubt. Thus, whether the jury understood

» the word presume by its common meaning or by that word's meaning

aren

under Montana law, Jury Instruction No. 5 would still fail to meet

the Constitutional standards of the Due Process Clause. On one hand,

the issue of intent would be virtually eliminated from the jurors'

consideratiion while on the other hand, the Petitioner would be forced

to prove, by a preponderance of the evidence, the nonexistence of

specific intent; that is, purpose or knowledge.

V. THE LSSUE OF PETITLONER’S INTENT WAS PROPERLY RAISED BY THE

TRIAL EVIDENCE AND SHOULD HAVE BEEN SUBMITTED TO THE JURY FOR

A DETERMINATION OF INNOCENCE, OR GUILT BEYOND A REASONABLE

DOUBT WITHOUT THE*STATE HAVING BENEFIT OF A PRESUMPTION.

~

Petitioner's defemse, at trial, was that he did not act

purposely or knowingly. Jury Instruction No. 5, however, prevented

the Petitioner of an adequate consideration of this defense. It ?

was not disputed that Petitioner's acts caused the death of Mrs.

Jessen, but Petitioner did dispute the finding that he had either

‘purpose or knowledge as required under the Montana Deliberate

Homicide statute. It was not the Petitioner's position that he

suffered from a mental disease or defect which made it impossible

for him to form the requisite intent to commit Deliberate Homicide.

It was rather Petitioner's position that he did not in fact at

that time and place deliberate upon or specifically intend to

cause the death of Mrs. Jessen.

To display the absence of a criminal intent in his acts,

Petitioner introduced the testimony of two expert witnesses at

trial. Both expert witnesses, Dr. William Stratford, a psychiatrist

practicing in Missoula, Montana and Dr. Michael Nash, a clinical

psychologist practicing in Bozeman, Montana, examined the Petitioner.

The men found that the Petitioner, a person of borderline intellec-

tual retardatcim, suffered from a personality disorder marked

by impulsiveness, aggressiveness, and a lack of planning.

Other evidemce produced at trial displayed that the Petitioner

had consumed a significant amount of alcohol prior to the fatal acts;

-ll-

between three six-packs and a case of beer, and some whiskey.

Both experts stated that this alcohol consumption intensified

and worsened the Petitioner's existing long-term personality

disorder. Both men were of the opinion that Petitioner did not

imtend to wause the death of Mrs. Jessen. Indeed, the testimony

of Drs. Stratford and Nash displayed that a number of factors,

including Petitioner's low intelligence, his personality character-

istics, and his alcohol consumption, vrevented him from forming

the intent required by statute to commit the offense of Deliberate

Homicide.

The question of Petitioner's intent, raised by the experts'

testimony, was one of fact which properly should have been submitted

to the jury for a determination of innocence or guilt beyond a

reasonable doubt. The State, however, prejudged any conclusion on

the subject of Petitioner's intent by requiring that vital element

of the offense of Deliberate Homicide to be presumed from Petitioner's

act. Petitioner's counsel made a timely objection to Instruction

No. 5 upon the grounds of a violation of due process of law. As

shown above, allowing one element of an offense to be presumed

upon procf of another is not in accord with this Court's decisions

in Winship, Mullaney, or Patterson. Indeed, allowing such a

presumption to be made contravenes the basic Constitutional due

process guarantees of proof beyond a reasonable doubt.

The questions raised by this petition are ones of first

impression in this Court. It is evident from the disparity between

the Supreme Court of Montana's decision in Petitioner's appeal and

the decia:ions shown above from the Second, Third, Fifth, Eighth, and

Ninth Fedt:nal Circuit Courts of Appeal, that guidance is needed in

this vital ammm of federal substance and concern. Until such a

ruling is made, jurisdictions, in which essential elements of

crimes are ali»wed to be presumed, will continue to deprive

-12.-

criminal defendants of their Constitutional rights under the

Due Process Clause of the Fourteenth Amendment.

CONCLUSION

WHEREFORE, Petitioner respectfully prays that a Writ of

Certiorari be granted.

Respectfully Submitted,

Arf teaa ¥)1 14 bsnl: AGL

ate yr Of;8 477

Attorney for Petitioner

PROOF OF SERVICE

I, BYRON W. BOGGS, Attorney for Petitioner herein, and a

member of the Bar of the Supreme Court of the United States, hereby

certify that on / Nu r 3 , 1978, I served a copy of

the foregoing petition on the State of Montana, Respondent herein,

by mailing copies in duly addressed envelopes, with first class

postage prepaid, to Mike Greely, Attorney General for the State of

Montana, Helena, Montana 59601, and John Radonich, County Attorney,

Deer Lodge County, Anaconda, Montana 59711; attorneys of record

for Respondent.

Bare We briga—

Byron W. Boggs

Attorney for pact tines

212 East Park Avenue

Anaconda, Montana 59711

alfa

APPENDIX A

No. 14064

IN THE SUPREME COURT OF THE STATE OF MONTANA

1978

STATE OF MONTANA,

Plaintiff and Respondent,

-vs-

DAVID SANDSTROM,

Defendant and Appellant.

Appeal from: District Court of the Third Judicial District,

; Honorable Robert J. Boyd, Judge presiding.

Counsel of Record:

For Appellant:

Byron Boggs argued, Anaconda, Montana

For Respondent:

Hon. Mike Greely, Attorney General, Helena, Montana

John Radonich argued, County Attorney, Anaconda, Montana

Submitted: May 3, 1978

Decided: Juin ~ ¢ 1978

-APPENDIX A p, -14-

Mr. Justice John Conway Harrison delivered the Opinion of the

Court.

On November 1, 1976, Mrs. Annie Jessen, 89 years of age,

was found dead in her home in Anaconda, Montana, the apparent

victim of a brutal assault in which she received blows to her

head from a shovel, and five stab wounds to her back from a

kitchen knife. Mrs. Jessen had, in addition, been sexually

assaulted and received a compound fracture to her leg, apparently

after the slaying.

On November 22, 1976, defendant, 18 years of age, was

arrested for an unrelated crime. Shortly thereafter, and while

in custody of the Deer Lodge County sheriff, defendant confessed

to the slaying of Mrs. Jessen. The confession was subsequently

corroborated by certain physical evidence.

Based upon the confession and supporting evidence, defen-

dant was charged, by an Information filed December 2, 1976, with

the crime of deliberate homicide, in violation of section 94-5-102,

R.C.M. 1947.

At the arraignment on the charge, defendant entered a

plea of “not guilty” and filed a notice of intent to rely on

mental disease or defect excluding criminal responsibility, as

a defense.

Defense counsel subsequently moved for a change of venue,

based upon allegedly prejudicial pretrial publicity. The motion

was heard on July 6, 1977 in the District Court, Deer Lodge County.

Defendant presented the testimony of four witnesses. Three of

the four witnesses testified that, despite their perception that

many Anaconda area residents had formed some opinion concerning

the case, the defendant could reccive a fair trial in Deer Lodge

County. ‘Whe fourth witness, Oscar Sandstrom, the father of

defendant, tiestified primarily concerning abusive phone calls he

had received following his son's arrest. The motion was denied

with leave to renew at the time of jury selection,

-App. Ap. -15-

The trial on the charge conmenced on July 18, 1977. De-

fendant's renewed motion for change of venue was denied. Defen-

dant further moved that the jurors be aan Yelivideniiy and

in segregation, which motion was also denied. Following voir dire,

defendant again renewed his motion for change of venue. The motion

was again denied. ¥

In his opening statement, defense counsel informed the

jury that defendant no longer intended to rely on the defense

of mental disease or defect. The decision to so inform the jury

appears to have been based on the reports of two psychiatrists

who had examined defendant and determined he was able to appre-

ciate the consequences of his actions, despite his low intelli-

gence level and aggressive/impulsive personality.

The case-in-chief for the state consisted of defendant's

confession, together with the corroborating physical and circum-

stantial evidence. Defendant called as witnesses the two psychi-

atrists who had examined defendant prior to trial. The witnesses

testified that, while defendant may not have had the specific

intent to kill at the time of the offense, it was their opinion

that he had the intent to "silence" Mrs. Jessen, and was con-

scious of his activity in bringing about the result.

Following the reception of evidence and upon their deliber-

ations, the jury returned a verdict convicting defendant of the

crime as charged. Defendant was subsequently sentenced to 100

years imprisonment in the Montana State Prison.

Defendant appeals the judgment of conviction, entered

upon the verdict of the jury.

Defendant raises two issues for review: (1) Did the

Diistteict Court abuse its discretion in denying defendant's motions

for change of venue? and (2) Did the District Court err in giv-

ing court's instruction No. 5?

Defendant first argues that the District Court abused its

-App. A p. -16-

discretion in denying his three motions for change of venue on

the grounds an impartial trial could not be afforded defendant

in, Deer Lodge County. It is maintained the pretrial publicity,

given the nature of the crime in this case, rendered selection

of an impartial jury impossible.

The applicable statute in this regard, section 95-1710(a),

R.C.M. 1947, states:

"The defendant * * * may move for a change of place

of trial on the grounds that there exists in the

county in which the charge is pending such prejudice

that a fair trial cannot be had in such county."

Accordingly, it is well settled that granting a change

of venue in a criminal trial is within the sound discretion of

the trial court, and the denial of a motion for change of venue

will only be reversed upon a showing of an abuse of discretion.

State ex rel. Hanrahan v. District Court, (1965), 145 Mont. 501,

401 P.2a 770; State v. Corliss, (1967), 150 Mont. 40, 430 P.2da

632; State v. Olson, (1971), 156 Mont. 339, 480 P.2d 822.

It has been held that mere publication of a news story

dealing with the facts and circumstances of the crime is not a

sufficient basis for change of venue. Published accounts of

crimes are not considered prejudicial unless so passionate as

to excite undue prejudice, rendering it impossible to empanel

a trial jury free from prejudice against the defendant. State

ex rel. Hanrahan v. District Court, supra; State v. Corliss,

supra.

Defendant relies on Silverthorne v. United States, 400

F.2d 627 (9th Cir. 1938), and State v. Dryman, (1954), 127 Mont.

579, 269 P.2d 796, as authority for reversing a conviction in

which change of venue had been denied, despite adverse pretrial

piblicity. The cases, however, are clearly distinguishable on

the basis of the volume and content of the publicity.

-App. A p.-l7-

Here, the publicity under consideration consists of 17

newspaper articles concerning various aspects of the crime, the

investigation, and the suheowuent arrest of defendant. Two of

the articles, published after defendant's arrest, contain a pic-

twre of defendant in police custody.

Considering the nature of the crime involved, we find

the reporting extremely objective and factual. Further, we do

not consider the amount of publicity given to the crime and en-

suing events in this case to be unreasonably voluminous. We

conclude that there was no abuse of discretion in the District

Court's refusal to grant defendant's motion for change of venue.

It is significant to note that the witnesses at the hear-

ing on defendant's initial motion for change of venue, with the

sole exception of defendant's father, testified they believed

defendant would receive a fair trial in Deer Lodge County, despite

the pretrial publicity and existence of some measure of adverse

public opinion.

Further, while certain of the twelve empaneled jurors

had read or heard something regarding the crime, there exists no

requirement that jurors be totally ignorant of the facts, involved

in the case before then. It is sufficient if the juror can lay

aside any impressions or opinions and render a verdict based upon

the evidence presented at the trial. State v. Moran, (1963), 142

Mont. 423, 384 P.2d 777; State v. Simpson, (1939), 109 Mont. 198,

95 P.2d 761.

Defendant next contends the District Court erred in giv-

ang court's instruction No. 5 to the jury. Instruction No. 5

states:

"The law presumes that a person intends the

ordinary consequences of his voluntary acts."

Dhe giiven instruction paraphrases the language of section 93-1301-

7(3), R-C.M. 1947, giving rise to the rebuttable presumption.

-App. Ap. +18-

Defendant, in essence, contends the given instruction

shifts to a defendant the burden of disproving an element of

the crime charged, i.e. intent. It is maintained the state is

thus relieved from proving an essential element of the crime

charged, contrary to recent pronouncements of the United

States Supreme Court. In re Winship, (1970), 397 U.S. 358, 90

S.Ct. 1068, 25 L Ed 2d 368; Mullaney v. Wilbur, (1975), 421

U.S. 684, 95 S.Ct. 1881, 44 L Fd 2d 508; Patterson v. New York,

(1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L Ed 2d 281.

The recent decisions relied on by defendant generally

PECDSE, under the auspices of the due process clause, shifting

to a defendant, such as by presumption, the burden of proof regard-

ing an essential element of the offense, most typically the medial

of criminal intent. In re Winship, supra; Mullaney v. Wilbur,

supra; Patterson v. New York, supra. However, such cases do not

prohibit allocation of some burden of proof to a defendant under

certain circumstances. Rather, the concern expressed in such

cases is that the State prove every element of the offense charged

as that offense is defined by state law. State v. McKenzie,

(No. 13011, Decided Que 7, 1978) °

Moreover, an instruction similar in effect to that under

consideration here has received recent consideration and approval

by this Court in State v. Coleman, Mont. ’ P.2d ’

35 St.Rep. 560. In fact, the very instruction was approved by

this Court in State v. McKenzie, supra, by the following language:

"The presumptions that an unlawful act was done with

unlawful intent, and that a person intends the ordinary

consequences of his voluntary act, have been a part of

Montana law since 1895. This Court has previously

approved the use of these presumptions in criminal

cases on the issue of intent. State v. Caryl, (1975),

168 Mont. 414, 426, 543 P.2d 389; State v. McLeod,

(1957), 131 Mont. 478, 489, 311 P.2d 400, 407. See

also State v. Jones, (1963), 143 Mont. 155, 181, 387

P.2d 913. The conclusions drawn through the use of

these presumptions are generally fair and reasonable

ways to ascertain intent which, of course, can never be

proved directly * * *," St.Rep._

-App. Ap. -19-

A review of the transcript of the trial in this case

demonstrates that the State satisfied its burden of proof of

each of the elements of the offense charged, including the

element of intent. Defendant's sole burden under instruction

No. 5 was to produce some evidence that he did not intend the

ordinary consequences of his voluntary acts, not to disprove

that he acted “purposely” or “knowingly”. We hold the instruc-

tion does not violate due process standards as defined by the

United States or Montana Constitution, and as interpreted by

relevant case authority, and therefore does not constitute revcers-

ible error.

The conviction of defendant is affirmed.

> ey a ve

OL. Gam, ferences (Vivitar. _

; Justice

We concur:

| -App. A p. -20-

ey oe e~

IN THE SUPREME COURT OF THE STATE OF MONTANA

No. 14064

STATE OF MONTANA,

Plaintiff and Respondent,

vs.

DAVID SANDSTROM, 5

Defendant and Appellant.

ORDER

PER CURIAM:

Appellant's petition for rehearing in the above named

cause having been filed, and the same considered by this Court,

IT IS HEREBY ORDERED that the petition for rehearing

in the above named cause is denied.

DATED this 28th day of June, 1978

-App. Ap. -21-

——

— oautee oeee 2eer so Gnaber stn

ee ee

—_——— =

$n the Supreme Court of the

State of Montana flor tF o-4 2S

___14064

D.C.#2877 Bie it aero

_______ March _Eerm A. D. 1978

Che Chief Justice of the Supreme Court of the Strate of flontana:

- To the Uonorable Judge of the District Court of the

PMA mnsssnnstsnrsnee sbudicial District, in and for the County

eee eeeeeeeessenesweres

Deer Lodge

of ats ee eee ee, Bee ee a edatlinimncaaniaintond ai mareueannanneanannl Cireeting:

WHEREAS, In the said District Court in a cause betiween.......State of..Montana....

Plaintiff... and RESPOMDEME oo nnn.scsescsnssessessseemensssennsseceneenensnantannssennnngngnss sssoe o> seanencenans and

David Sandstrom

Defendant... and . Appellant Mg sr chisalases ahi bees sigareinmeeaneapea nae

ers Ce | re i said District Court, entered in said cause an the

Occ cee A Of cece AMIE csecseccennenemenenmnsetee enersscee Ae Dh, 19...27

wan in favor of the anid. ..... Plaintiff.

oS Lana Respondent | and against the said

OTORaRt ang MPO NRO nea ccecsssscesarseoee

ax by the inspection of the transcript of the recard of xaid Court in xaid cause which was brought

into the Supreme Cowrt of said Ntate by virtuc of an appeal, agreeably to the statute of

said State and the rules of said Supreme Court in such case made and provided, fully and

at large appears.

AND WHEREAS, in the... March... term of court in the year of our Lord,

ane thousand nine hundred and. ... seventy-eight..............-. said cause came on to be heard

bufeam xaid Supreme Court and waa argued by oruneel.

-—_

-App. Ap. -22-

-Ann. And. -22-

thal the Jiudqment

the Pith day of

is affirmed.

Costa in thie Court:

Appellant ippearaner - $

Respondent — Appearance - §....

Remittitur - - + + + + #...

....0f the Court below, entered in this cause on

August ai ee seenignapedioes eSNSaRemeGnneneed shendenan AD. 197.2...

HONE © rene

NOTG.--«-- eee

Perreeer itt eee

You, THEREFORE, are hereby commanded that such further proceedings be had in

said cause as, according to right and justice, and the laws of the State of Montana ought to

be had, not inconsistent with the opinion hereto attached.

WITNESS: The Monorable......................

EZ -20-

eM 4TR FUwLIBMING CO

_.... EF rank...I.....Haswel1....... cabin

on fe Re ( T Gules j

Deputy Clerk of the Supreme Court of State of Mestans.

-~App. A p. -+23-

-App. A p. +23"

eo eee eee

IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE

, STATE OF MONTANA IN AND FOR THE COUNTY OF DEER LODGE

4 STATE OF MONTANA, )

. ) No. 2878

_ Plaintiff,

6. -vs- )

) JUDGMENT

7 | DAVID SANDSTROM, )

: )

8° Defendant. )

95

°F After written waiver of preliminary hearing by the defendant,

11 , David Sandstrom, and Order of Justice of the Peace John Sajcich

{2 |, binding the defendant over to District Court for trial, a

13

‘

Vy

lerimin&) Information was filed on December 2, 1976, by the County

Attorney for Deer Lodge’ County as attorney for the State of Montana,

\ ;

1) "panies the defendant with the following FELONY: Burglary, in

16 \violation of Section 94-6-204(1), R.C.M. 1947, as amended, committed

17 on or about November 12, 1976.

The defendant was arraigned on December 3, 1976, and advised

19 of the nature of the charges against him, of the maximum sentence

; 4 r

_% after a plea or verdict of guilty, of his right to a jury trial,

4 and of his right to counsel, either retained by the defendant or

» ‘appointed by the court if the defendant was indigent.

oe The defendant was thereafter represented by Public Defender,

24 Byron Doggs, as counsel and on July 19, 1977, entered a plea of

guilty to the above criminal charge.

46 The defendant appeared in open court on July 25, 1977, and was

27 asked if he had any legal cause to show why sentence and judgment

’® of the court should not be imposed at that time, and the defendant

29 replicd in the negative;

w) (WOW, THEREFORE, if is the sentence and judgment of the court

31 as follows: '-

$2 1. The defendant shall be imprisoned in the State Prison at

, Deer Lodge, Montana, for a period of ten (10) years?

> he defendant shall receive a total credit of two

“*

Studied forty mane (249) days for time served in jail prior to

4 sentencing;

5! The defendant is hereby remanded to the custody of the

6 (Sheriff of Anaconda-~Deer Lodge County for transportation to the

> Veeate Prison for execution of this the sentence and judgment of the

| !

g jcourt.

i

g |i Dated this 25th day of July, 1977.

|

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ae

12) 2

13 Il

STATE OF seaTTFRA

4 Town of Dear toda, 7

:5 & MELEN MELOY, Crem of mie Olstricr Covet of the Thire Jucten Cietrict of ty

\ ate of Morena, on and for the Courty «1 Oaer Lodgé, do hereby certify tat the

1 (Lee 8 8 for, bree esd Correct copy of the onalnal as the some appears in We tie

r ext “norte of the of ce

- 2

ONT WER? any Mand 999 Sea) of d's own iniee pat day or. Ling... __-. 07S

\\ ng eee Clear!

18 t ws Leesan. ee Oenur -. :

-App. A p- -25-

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-IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE STATE

OF MONTANA, IN AND FOR THE COUNTY OF DEER LODGE

STATE OF MONTANA,

Cause No, 2877

Plaintiff,

-VS=

DAVID SANDSTROM,

LD, Lhursl Lemececl

We, the jury in the above entitled action find the defendant,

ee ae ae ee ee 8 ee ee

Defendant.

DAVID SANDSTROM, guilty of the crime of deliberate homicide.

Dated this BS day of July, 1977.

Acheet £ Lidl

Foreman

Aic Ui MUNIANA, |

unty of Deer Locge. |

A LOM Ye Clore vi the Dlsentc, Cow of ne lord Juach Canuict of me

‘ate of MuWsNe, in aw! fur te Count, « Loe. Loiga, Go hereby conltty ihe tre

Ove 64 fi te tw ated mic copy ) 8 oi igine! a9 the samo lopeare in iw Hler

end recores 2t thus cMica. a

OTTMEBS wy Hone ano seu f ih.s Love nigel 2h, oo Cog Ww md -

—+ eee woe ©

Pe cae te nos ces

-App. A p. -26-

APPENDIX B

IN THE LISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE

STATE OF MONTANA, IN AND FOR THE: COUNTY OP DEER LODCE

zeeeeueee @e ee

STATE OF MONTANA, ) 0.

Plaintiff,

-vs- INFORMATION

DAVID SANDSTROM,

Defendant.

eee eee ee et Wh

COMES NOW Joseph C. Connors, Deer Lodge County Attorney, as

attorney for the State of Montana, after the Defendant, David Sand-

strom, having waived and refused a preliminary examination in Justice

Court and Justice of the Peace, John M. Sajcich, having bound the

defendant over to District Court for further proceedings, and, there-

fore, the undersigned accuses David Sandstrom with the crime of

Deliberate Homicide, a felony, in violation of Section 94-5-102,

committea@ in Deer Lodge County, Montana, as follows:

On or about November 1, 1976, in Deer Lodge County, Montana,

the defendant, David Sandstrom, purposely or knowingly caused the

@eath of Annie Jessen by stabbing the said Annie Jessen in the back

with a knife, which was in violation of the above statute ané against

the peace and dignity of the State of Montana.

The maximum sentence for said offense is imprisonment in the

State Prison for any term not to exceed one hundred (160) years.

December 2, 1976.

/s/ Joseph C. Connors

“Deer Locge County Attorney

Attorney for the State of Montana

-APPENDIX B p. -27- ) ‘