Appendix — Sandstrom v. Montana

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PP Supreme Court UX ~)

FILED. |

FEB 12 1976

APPENDIX |

—— meth, IR, CLERK

IN THE

Supreme Court of the United States

OcTOBER TERM, 1978

No. 78-5384

DAVID SANDSTROM,

Petitioner,

—vU.—

STATE OF MONTANA,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF MONTANA

PETITION FOR CERTIORARI FILED SEPTEMBER 12, 1978

CERTIORARI GRANTED JANUARY 8, 1979

IN THE

Supreme Court of the United States

. OCTOBER TERM, 1978

j No. 78-5384

DAVID SANDSTROM,

Petitioner,

‘ | —v.—

STATE OF MONTANA,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

| OF THE STATE OF MONTANA

INDEX

Page

I TIE DINO ac ccdiideecsscticcnitrtncsindnsnonenactessccaevdsnnmmbibntinniepians 1

Se a i lca A ndtedeginameptinsiebanoiangladecaienadh 3

Official Transcript of Arraignment ...............-2....22..cccccccceeeeeeeeee 4

: That Portion of Petitioner’s Attorney’s Opening Remarks

Wherein He Informed The Court And Jury of His Intent

Bias To Contest The Proof on The’ Element of Purpose or

i 4 SII dasa acrraie uate clasosaretskonieeiiaibleibesniicibnichtacehlaieds dD pieseslinnecdviepes 6

PetttRemee BD COMTRIBIORD nnn scnciccesccoconsesecoeresoibasscserorssevansvasenesenes 9

| . Testimony Offered In Petitioner’s Defense By a Psychiatrist

: And Psychologist Contesting The Element Of Purpose or

| af FOI eseensnnsertvernntenbemsansosnscthinnaptninnlsetinennneccanstuvgaoccioconstG a

a ‘ | The Colloquy Between The Court And Petitioner’s Attorney

, With Respect To The Instruction Here At Issue ................. 34

: ! REET ES SPS, SERENE REE SSE NR ON eae 34

x Re . | EN SEE ERE ARSE RO ait OER EO EON 35

2 ; A REE ES LR SERA ENE ELE IT ON a SO ETT Get 35

f REACTS TSE ERS Bae DELTAS Rae EO EM 85

é | SERRE REL EERO LED BNE af eb INE 35

ii {NDEX

Page

Tmstruction & ...........-...c..-c-c-csccoscesesscenenensnsesssnsscnersnnesonerosssssnensesnssenes 36

Tmstruction 9 .........-....--c-c:--s-cossssecsesesnsesssnsesssnensnsnsasesesessensnsnsesoonenes 36

Tnstruction 10 ...............-c----c.cecereecenserecnrenrnsnesesessesscnensnsnsnsnsscccnnserees 36

Tmatruction 11. ..............<--.c---cscsesecseresecnencoensessensnsnsnsosscnsesnresnsaronsrsears 36

Instruction 12 ................--cscssseceeseseseeeenserennsnsesnsnssssensnssensnessnranses 36

Instruction 18 ............--c-cssccsssseererecssnsscnsnsensntsesensorssernsnnssnenensnsonassees 37

Instruction 14 Sea) as sasnenedeapepeemncniimnennensineiiissssepien 87

Instruction 15 .............-....cssssscessssssssesnsensnsessssnsenssessarnssnsnsncanensanssrssee 87

Wer het -acccecccaec-neasecconssscescenecesnsesecensesensesnsensnsneoensutecncensnsasnensnsscoesors 38

JUdGMeENt ....------0---cnen-eenseneeerseossonnsennsenssnsenssnnrensencensenssonsrsnsncsaaseseseses 39

Order of Commitment To Montana State Penitentiary ...........- 42

Opinion of Montana Supreme Court on Appeal ............------.+-+-- 45

Remittitur and Judgment of Montana Supreme Court on mm

A BMORl ..n.n.-ancecrosoneossensncnsesnneresencnsceessessenssnsosnsoscensnacsssensnacconononecsees

Pepe Montana Supreme Court Denying Petition for Re- ie

Br cima Oops ot 6: Siisek muan eomcles

oF en trial th Forma Pauperis and

Granting Petition for Writ of IIIS. cesistccesnnenveennsitnssnntisce 55

IN THE DISTRICT COURT OF THE

THIRD JUDICIAL DISTRICT OF THE

STATE OF MONTANA

IN AND FOR THE

COUNTY OF DEER LODGE

No. 2877

STATE OF MONTANA, PLAINTIFF

—vs.—

DAVID SANDSTROM, DEFENDANT

RELEVANT DOCKET ENTRIES

December 3, 1976

Refusal and Waiver of Preliminary Examination

filed.

Bail fixed at $100,000.00 filed.

Information filed. -

December 8, 1976

This being time set for entry of plea, let the records

show the’ Defendant is present in Court with his

counsel Byron Boggs. At this time Mr. Boggs in-

formed the Court that his client enters a plea of

“Not Guilty” and also handed the Court a Notice

of Purpose to Rely on the Defense of Mental Di-

sease and Defect excluding responsibility. De-

fendant is remanded to the custody of the Sheriff

until further order of this Court and until coun-

sel for the Defendant has a chance to review the

matter further.

December 15, 1976

Motion for psychiatric examination of Defendant

filed.

December 22, 1976

Order for psychiatric examination of the Defendant

filed.

February 18, 1977

Affidavit filed. >

March 18, 1977

Defendant’s, Motion for Entry of Judgment of Ac-

quittal on the Grounds of Mental Disease or De-

fect Excluding Responsibility filed.

July 18, 1977

This is the time set for Jury Trial. Defendant is

present in Court with his attorney Byron Boggs.

The State is represented by County Attorney John

Radonich and Deputy County Attorney Joseph

Connors. The matter is to be heard before the

Honorable Robert J. Boyd.

July 21, 1977

Counsel stipulated all jurors present. Court in ses-

sion. The Judge read the Instructions to the

jurors. Connors makes his summation. Boggs

makes his summation. Radonich concluded. The

Jury deliberated at 11:15. The Jurors returned

to the Courtroom at 2:25 o’clock. Robert Buhl—

Jury foreman gave the verdict to the Bailiff which

he presented to the Judge, then to the Clerk to be

read. The Verdict—Deliberate Homicide. Sentenc-

ing July 25, 1977, Monday at 10:00 o’clock A.M.

Court adjourned at 2:30. Defendant remanded to

the custody of the Sheriff.

July 25, 1977

Verdict—Deliberate Homicide filed.

July 26, 1977

Commitment to State Penitentiary filed.

August 12, 1977

Notice of Appeal filed.

June 30, 1978

Remittitur and copy of opinion filed.

IN THE DISTRICT COURT OF THE

THIRD JUDICIAL DISTRICT OF THE

STATE OF MONTANA

IN AND FOR THE :

COUNTY OF DEER LODGE

No. 2877

STATE OF MONTANA, PLAINTIFF

~—US,.—

DAVID SANDSTROM, DEFENDANT

INFORMATION—Filed Dec. 3, 1976

COMES NOW Joseph C. Connors, Deer Lodge County

Attorney, as attorney for the State of Montana, after the

Defendant, David Sandstrom, having waived and re-

fused a preliminary examination in Justice Court and

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

defendant over to District Court for further proceed-

ings, and, therefore, the undersigned accuses David

Sandstrom with the crime of Deliberate Homicide, a

felony, in violation of Section 94-5-102, committed in

Deer Lodge County, Montana, as follows: 3

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

Montana, the defendant, David Sandstrom, purposely

or knowingly caused the death of Annie Jessen by stab-

bing the said Annie Jessen in the back with a knife

which was in violation of the above statute and against

the peace and dignity of the State of Montana.

The maximum sentence for said offense is imprison-

ment in the State Prison for any term not

hundred (100) years. Ks wt rg ge

December 2, 1976.

/s/ Joseph C. Connors

Deer Lodge County Attorney

Attorney for the State of Montana

OFFICIAL TRANSCRIPT OF ARRAIGNMENT

No. 2877

Filed Dec. 8, 1976

STATE

Vv.

DAVID SANDSTROM

JACK SCANLON DEPUTY COUNTY ATTORNEY ap-

pearing for the State.

BYRON BOGGS, PUBLIC DEFENDER, appearing for

the Defendant.

BE IT REMEMBERED that the above matter came

on for Hearing before the HON. ROBERT J. BOYD,

Judge, on the 8th of December, 1976, in the Deer Lodge

County Courthouse.

THE COURT: Let the record show that the Defend-

ant, David Sandstrom, appeared before this Court on

the 38rd day of December, 1976, answered to his true

name and at the request of counsel additional time was

granted for entry of plea. Are you prepared to enter

a plea at this time?

MR. BOGGS: At this time, Your Honor, the Defend-

ant would like to enter a plea of not guilty and I would

hand the Court a Notice of purpose to rely on the de-

fense of Mental Disease or Defect Excluding Respon-

sibility.

THE COURT: Is counsel going to make a Motion for

Evaluation or do it privately?

MR. BOGGS: I would like to review that matter for a

pac additional period before I decide which way to go

on that.

THE COURT: The Defendant is remanded to the cus-

tody of the Sheriff of Deer Lodge County until further

Order of the Court.

(Hearing concluded. )

THAT PORTION OF PETITIONER’S ATTORNEY’S

OPENING REMARKS WHEREIN HE INFORMED

THE COURT AND JURY OF HIS INTENT TO

CONTEST THE PROOF ON THE ELEMENT OF

PURPOSE OR KNOWLEDGE. [Official Transcript

pages 204 line 13 through 207 line 25].

THE COURT: The Defendant may make his open-

ing statement.

MR. BOGGS: Thank you. Ladies and gentlemen of

the jury, I ask for your complete attention because I

believe it is very important that you understand the

posture that the defense will take in this case.

It may be somewhat different than the impressions

you have gotten if you read the newspaper account and

I think it needs to be thoroughly explained to you.

As was stated by Mr. Connors, there was a confession

in this case. The Defendant David Sandstrom will not

repeat that confession. He admits the facts that are

stated in that confession. And in that confession it is

stated that he took the life of Annie Jessen. It is further

stated that he sexually abused Mrs. Jessen after her

death. These facts will be admitted too. The issue that

will be presented to you upon those facts is the question

of what crime is constituted from the facts. The charge

is deliberate homicide in that David Sandstrom took

Mrs. Jessen’s live knowingly or purposely. It is the

position of the defense based on the facts and the facts

that will primarily inform you as to the events of that

night—it will be stated in the confession there were cir-

cumstantial evidence as stated by Mr. Connors that will

corroborate the truthfulness of the confession.

I do not know and I do not expect that there will be

any evidence, presented to you which will contradict the

confession in any respect. Based on those facts it will

be the defense posture that the element of the crime of

deliberate homicide, that the Defendant David Sandstrom

acted knowingly or purposely is not true.

As was discussed with you when you were being chosen

as jurors I did file in this case a notice of intent to

rely on the defense of mental defect or disease. I believe

it will be the testimony of the witnesses, the professional

psychologist, and psychiatrist that I will ask to take the

stand, that David Sandstrom does not suffer any mental

disease or defect that will excuse him for the conduct

at that time. And, therefore, I would not ask you to

find that he be excused of this conduct on that basis,

but as I told you during the voir dire the initial plea,

and the plea remains, in this case is the plea of not guilty

and understand that with that plea the State must prove

every element of the crime beyond a reasonable doubt,

and that the element of the crime we do not believe can

be proved is the element of knowingly or purposely doing

the act.

The facts that we will rely on for this defense will

be, as I say, primarily those of the confession and specifi-

cally that on the night in question David Sandstrom

was drunk. Now, the degree of drunkenness no one will

be able to know, but you will have to judge that from

the testimony here. Beyond that the professional mental

health people, who as I will call, will testify as to their

opinion as to his health state at that time. They will

state that their opinion based on their understanding

of his personality that he does not plan, that he is a

borderline retarded person, that acting under the in-

fluence of alcohol and possibly drunk he took the life

of Mrs. Jessen and impulsively without thinking acted

under the influence of a situation that he simply could

not comprehend in the sense that he deliberated and com-

prehended in our situations. There will be asked of you

by the prosecution to find an additional fact in this case

and that is that the Defendant took the life of Mrs.

Jessen pursuant to a plan of lying in wait. I do not

believe the facts in this case will warrant such a con-

clusion.

I listened to Mr. Connors as he described the facts,

I did not see in those facts such a plan of lying in wait,

and I do not believe that you will find them in the con-

fession as it is stated and there is no other evidence

that I am aware of that contradicts this in any way to

such an opinion.

I will ask the Court not to submit that question to

you because I do not believe there will be any facts to

base such an opinion. If the question is submitted to

you it will be the defense posture that it is not a fact.

As we said during the selection of the jury I expect

this case to arouse your emotions perhaps as strongly

as they can be aroused. I also expect that you will put

these emotions aside and apply the law that will be given

to you by the Court to the facts as you will hear them

and I will ask of you at that time to look at the conse-

quences and return a verdict of not guilty of deliberate

homicide requested by the prosecutor but a verdict of

mitigated homicide based on the position that the De-

fendant did not act with knowledge or purpose in tak-

ing Mrs. Jessen’s life. Thank you.

STATE’S EXHIBIT 16

PETITIONER’S CONFESSION

DATE: 11-22-76

TIME: 11:34 A.M.

IN REFERENCE TO ANN JESSEN CASE

This statement was given to Terry Wilkinson, Detec-

tive, Anaconda Police Department, by me, David Sand-

strom, of my own free will, with no coercion or threats

of any kind. ve

On October 31, 1976, I was home giving out candy

to the trickie-treaters. This was at about 7:00 P.M. I

kept giving out candy until 11:30 P.M. or 12:00 Mid-

night. I left and went down town. I was walking around,

looking for a place to drink. Terry Hayes and Gary

Rettinger drove up and asked me if I wanted to go and

ride around. I went with them. They gave me a can of

beer. We were riding around and I asked them if they

wanted to go to Butte. They said “yes”’. <

We then went up to the Circle K and got some gas,

and I bought two six packs of beer. We left for Butte

and drove around over there for awhile. Our first stop

was Harrington’s Bar. Myself and Gary went in and

played some foos ball and had a beer. Then we left and

went down to the Dry Gulch Bar. We all went in the

bar, but couldn’t get served because Hayes never had

an I.D.

We left there and rode around and ended up at

Charlie’s New Deal. I went in the bar by myself. I

met Rick Cole, Mariann Petra there. We had a few

beers there. I went out and got Terry and Gary and

bought them in. They never had anything to drink.

They were telling us to leave the bar because of clos-

ing hours. I brought a case of beer and a pint of whiskey

(Kesslers). A bunch of us left the bar and went up to

Joe Sisner’s sister’s house to have a party. It was around

3:00 A.M., November 1, 1976, when we,started to run |

out of beer. Myself and Terry Hayes, Gary Rettinger,

’ ,

Mariann Petra went down to the M-M Bar and got

another case of beer. .We went back up to the house

where the party was going on. We were drinking up

there again. We were getting short of beer and we went

down to the M-M bar and got two more six packs of beer.

This was around 4:00 A.M., November 1, 1976.

We drove around for a few minutes and went up to

Mariann Petra’s sister’s hous¢, where she was staying

then.

Myself, Terry Hayes, Gary Rettinger took Mariann

Petra home. It was around 4:30 A.M. at this time and

we started back home. We had some beer left, and I had

a few cans on the way home.

We came into town, and dropped Gary Rettinger at

his house. Then we, Terry and I, were going west to

take me home. We got by the Safeway and I told him

to drop me off on the corner.

I walked up Larch Street and up the alley to the end

and took a right and walked towards Ogden Street.

I went towards the creek and sat down for a few

minutes. I started to think about robbing someplace and

I thought about the Jessen place. So I got up and

walked across the bridge and up the road. I walked

around the house to see if anyone was there. The kitchen

light was on. I thought no one was there. There was a

shovel next to the house and I threw it through the win-

dow. I ran over by the chicken house and hid for a little

bit. I then went back to the house, and no one was

around. I pulled some glass out of the window sill and

crawled through the window. I was looking ‘through the

house. I was in the bedroom off the kitchen. I was in

there looking around and she came out. She didn’t see

me. She went over to the broken window and was asking,

“Who’s there?” I came out and went over and grabbed

her and she started to scream.

I got worried that someone would hear her, so I picked

up the shovel and hit her with it. I hit her in the back

of the head. I thought it would stop her from screaming,

but it never. I couldn’t understand what she was scream-

ing about.

She started to wheel cher wheel chair and I got scared

and didn’t know what to do. There was a knife laying

up on the counter, so I grabbed that and stabbed her.

I stabbed her in the back five times. The knife went

through the back of the wheel chair. She quit moving

around and there was blood all over the place. I pulled

her out of the wheel chair. Her skirt or whatever ripped.

I tried dragging her into the next room, but the skirt

kept ripping, so I left her. I went into her bedroom and

looked through a few of the drawers. I went in the

closet and found a rifle, a .22, and took it out. I looked

at it and just threw it on the bed. I was really drunk,

having a hard time walking.

I went out in the kitchen and didn’t realize what I

was doing when I raped her. I don’t remember going

into the bathroom. When I finally came to my senses

and realized what I was doing, I went to get up and

slipped. This is when her leg got broken. I got up and

went out the door and left. I took the knife with me.

I never took anything else from the house. When I got

down to the bridge, I threw the knife in the creek, then

a went home. I got home around 6:00 A.M. or a little

ter.

My dad was up and my mom got up. They asked me

where I was and I said I was at a party. I then went

to bed.

The first time I hit her with the shovel she was facing

the bedroom off the kitchen. She never stopped scream-

ing. I took the knife off the counter and kind of grabbed

her the same time. I started to stab her and pulling her

back towards the sink—all in one motion.

I declare that the above statement is made to the

aforesaid person, Terry Wilkinson, of my own free will

without promise or threat, without fear or threat of phy-

sical harm, without coercion, favor or offer of favor,

without leniency or offer of leniency, by any person or

persons whomsoever. ©

/s/ David Sandstrom—11-23-76

Witness:

/s/ Terry Wilkinson—11-23-76

TESTIMONY OFFERED IN PETITIONER’S DE-

FENSE BY A PSYCHOLOGIST AND PSYCHIA-

TRIST CONTESTING THE ELEMENT OF PUR-

POSE OR KNOWLEDGE. [Official Transcript pages

293 line 9 through 328 line 14]. oe

DR. WILLIAM STRATFORD

was called as a witness, and being first duly sworn, was

examined and testified as follows:

DIRECT EXAMINATION

BY MR. BOGGS:

Q. Please state your name.

A. My name is William Stratford.

. And you are a doctor of psychiatry, isn’t that

true? :

A. I am a medical doctor and specialize in the prac-

tice of psychiatry.

Q. Would you tell us Dr. Stratford what your educa-

tion and training has been to achieve that status?

A. Certainly. I had premedical education at the Uni-

versity of Utah. 'I attended medical school at the Uni-

versity of Tennessee in Memphis. Did a rotating medical

internship with a hospital associated with the University

of Utah Medical Center. Then did a three-year general

psychiatric residency at the University of Utah Medical

Center and a four-year fellowship in child psychiatry

at the same facility before going into private practice.

Q. And what is your present practice?

A. My present practice is in Missoula, Montana, and

consists of approximately 30 to 40 percent forensic or

legal cases, another 30 to 40 percent of adult—both in

and out patients and 15 to 20 percent child psychiatry.

Q. Now, when you say forensic cases that refers to

criminal?

A. Right.

. And in that connection that is with the Montana

State Prison?

A. Partly, I am consulting psychiatrist with the Mon-

tana State Prison for the last—over the last two years

examining inmates there. That is a part of my private

practice, I examine criminals for various attorneys and

courts.

Q. Approximately how many cases were you asked to

examine persons in regards to criminal cases?

A. Well, considering civil as well as criminal cases,

I have testified in courts of law over 1,200 times.

Q. Now, you were ordered to conduct an examina-

tion of the Defendant David Sandstrom, were you not?

A. Yes, I was.

Q. And did you make such an examination, isn’t that

true?

A. Yes, sir.

Q. I would like for you to describe to the jury the

results of that examination of Mr. Sandstrom as far

as it pertains to his intelligence and personality factors.

A. Certainly. I had an occasion to examine Mr.

Sandstrom on January 24th of this year here in Aana-

conda. I talked to him about the circumstances of the

crime. I had an occasion to talk to Mr. Sandstrom about

his past experiences, education, prior behavior in lots of

different areas. And I administered to him what a psy-

chiatrist refers to as a mental status examination, which

is a detail checklist—sort of a way of checking a per-

son’s intelligence. They are emotional makeups ascertain-

ing certain traits about an individual, trying to tell

whether or not the person is in fact psychotic and try-

iny also to assess their intelligence. :

As a result of my examination of Mr. Sandstrom I

was able to formulate, and did write a letter to the

Court which did indicate that Mr. Sandstrom has an

I.Q. that is somewhat less than normal, but that he is

not defective in terms of his intelligence.

In my opinion he is not now psychotic nor was he at

the time of the crime, he is not suffering from mental

disease in my opinion. In my opinion what he does

suffer from is a long-term personality disturbance, which

is characterized by the impulsive aggressiveness, a sense

of immediacy. He is encumbered by an inordinate amount

of conscience—he does not particularly feel guilty about

his behavior and will engage in that behavior, particularly

—readily under the influence of any chemical intoxicant

such as alcohol.

Q. Doctor, when you stated that he had a less than

normal intelligence, is that—is it possible to estimate the

intelligence in terms of the familiar I.Q.?

A. Certainly. His I.Q. was 79.

Q. And how does that relate to a normal I.Q.?

A. Normal I.Q. is 90 to 110.

Q. And how would that relate—relate to an IQ.

with a mental defect?

A. In my opinion an I.Q. that would constitute a

mental defect is an I.Q. of 69 or below.

. Now, Doctor, you were describing the personality

of David Sandstrom and you stated that he was not

actually defective, I think that is the exact word you

used, but the impression you have is impulsive?

A. Yes, sir. Would you like me to explain that?

Q. Yes, would you try to explain that.

A. Certainly. Many times people engage in activity

and they will plant it or give some thought to the con-

sequences of their behavior. Impulsive refers to the lack

of that planning. It is in essence the immediacy or jump-

ing to the event or the circumstances in an impulsive

way without the planning or forethought and with no

concern for the consequences that often times people do

possess.

‘ Q. Now, reading from the letter that you—that you

wrote earlier to the Court—

MR. RADONICH: Which I am going to object as

hearsay.

MR. BOGGS: I will phrase it as a question.

MR. RADONICH: I will withdraw the objection.

BY MR. BOGGS:

Q. Would you say that Mr. Sandstrom’s personality

shows a lack of planning?

A. Characteristically, yes. Characteristically in my

opinion he is an impulsive individual who does not spend

a large amount of time in planning for the future or

planning to—in terms of current events, nor does he

have the capacity generally to follow through with plan-

ning such as a—for example a job or education, he lacks

the ability to stick to a task and complete it, generally

speaking.

Q. Now, would you say that Mr. Sandstrom suffers

a personality disorder?

A. Yes, I would.

Q. But it is not a psychosis?

A. That is right, it is not a psychosis, it is not a

mental disease and not a mentai defect, it is a personality

disorder.

Q. Now, would you say that this personality disorder

could reach a severe degree if under the influence of

alcohol?

A. Yes, whatever personality trait Mr. Sandstrom

does exhibit would be worsened under the influence of

alcohol, which I think is—would be a common experience

of anyone here if reflecting upon whom they have known

and who have been sober at one point and drinking at

another point, they could see generally in their behavior

—it would worsen Mr. Sandstrom’s traits.

Q. Now, I think you have already stated your opinion

on this for us, but for clarification, for the benefit of the

jury, I will ask you—you are familiar with meaning of

the term, mental disease or defect that is the opinion in

the Montana Criminal Code, is that true?

A. Yes.

Q. What is your opinion as to whether or not David

Sandstrom suffers from a mental disease or defect in the

meaning of those terms?

A. My opinion—he does not suffer from a mental

disease or defect within the context of those terms.

Q. Now, you are aware of the facts that constituted

the death of Mrs. Jessen, are you not?

A. Yes, sir.

Q. And have you read the confession of David Sand-

strom in this case? “

A. Yes.

Q. I will ask you was there anything in your examina-

tion that caused you to doubt the facts stated in the

confession?

A. No.

Q. Well then, I would ask you to assume those facts

for the purpose of this question. And I would ask you

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do you have an opinion as to whether David Sandstrom

deliberated on the death of Mrs. Jessen?

MR. CONNORS: Objection, Your Honor, that is not

a point of law which the Defendant is charged. The

deliberation is not the test.

MR. BOGGS: Your Honor, the comment to the sec-

tion under which Mr. Sandstrom is charge states that

the section relates only to conduct that is done de-

liberately.

THE COURT: Overruled.

BY MR. BOGGS:

Q. Do you understand the question, Doctor?

A. I understand the question, I am not sure of the

context when you are using the word deliberation. If you

use it in the sense that it was planned, I don’t think that

it was planned to cause her death. If you are using the

term deliberation to indicate that he perhaps purposely

inflicted damage upon her in the deliberate sense, using

the word in that context, I think that is true, he did

deliberately do that. He did deliberately harm her.

. Do you believe that he formed the intention to

take her life?

MR. RADONICH: We object, that invades the prov-

ince of the jury, what his intention was.

THE COURT: Overruled.

THE WITNESS: Would you rephrase that, sir.

BY MR. BOGGS:

. Well, I would not rephrase it. The question is—

THE COURT: Have the reporter read it back then,

counsel.

(Whereupon last question read back by reporter.)

THE WITNESS: In my opinion his intention’ was to

silence Mrs. Jessen.

BY MR. BOGGS:

Q. Then, you are thinking of the facts stated in the

confession that Mrs. Jessen was screaming, do you re-

call that from the confession?

A. Yes.

17 4

Q. And you believe his intention was to stop her

from screaming? ;

A. Yes.

Q. Now, it has been suggested by the prosecution in

this case that the death of Mrs. Jessen was pursuant to

a plan of David Sandstrom to lie in wait for Mrs. Jessen.

Now, do you have an opinion whether in fact there was

any such plan to lie in wait?

MR. CONNORS: Objection, your Honor. That in-

vades the province of the jury.

THE COURT: Sustained.

BY MR. BOGGS:

Q. Doctor, do you have an opinion as to the mental

state of Mr. Sandstrom at the time that he took Mrs.

Jessen’s life?

A. Yes, I do. :

Q. I would ask you to describe that to the jury as well

as you can.

A. Okay. In my opinion that evening Mr. Sandstrom

had been drinking with friends. He had some degree of

alcohol in his system, which as I indicated would ex-

asperate his basic traits, which I have also indicated.

In my opinion at the time of the murder he was

really—it could be a correlation of factors. There are

several factors. One is Mr. Sandstrom was somewhat

limited in intelligence and that may have contributed to

the fact that he perceived limited or fewer options than

an average person. In addition he was intoxicated to

some degree. Thirdly, he does have the basic personality

characteristics that I have indicated of impulsiveness and

impressions.

And I think in my opinion that when he was con-

fronted with her presence and confronted with the scream-

ing that his intention was at that point to silence Mrs.

Jessen and when he was unable to do so with the shovel,

pursued the course of events.

Q. Thank you, Doctor. Now, you are aware, are you

not, of the facts stated in the confession and it’s likewise

been demonstrated here that Mrs. Jessen was sexually

violated?

A. Yes.

Q. Were you able to determine from your examina-

tion of Mr. Sandstrom if he suffers sexual perversion,

derangement in that regard?

A. In my opinion he—although he is certainly ques-

tionable—from the facts here of his past history he does

not.

. You were able to discover none?

A. Well, Mr. Sandstrom was reluctant to discuss that

aspect of the case about Mrs. Jessen, particularly, but he

was less reluctant in terms of his background.

In my opinion as far as I know he has no past his-

tory of sexual abhorrent behavior.

Q. Well, do you have an opinion as to how that

event—well, I will withdraw that.

MR. BOGGS: I don’t have any other questions at

this time, your Honor.

THE COURT: You may cross-examine for the State.

MR. CONNORS: Thank you, your Honor.

CROSS-EXAMINATION

BY MR. CONNORS:

Q. Dr. Stratford, with regard to mental defect, that

relates mainly to I.Q. of a person?

Goes “pt

Q. So, clearly David Sandstrom comes at least ten

points above where you would draw the line for a person

to be mentally defective?

A. That is true. ;

Q. How would you describe a mental disease?

A. In my opinion, from a medical point of view,

mental disease is a psychosis, a psychosis either induced

by some physiological problem that a person may have.

I am referring to something like D.T. or psychosis which

happens to people where they lose perspective and con-

text with reality and they often have to be hospitalized

suffering from hallucinations where they might hear

voices or see things or be convinced that there is a con-

spiracy to destroy them, for example.

And these examples are within the province of mental

disease from the medical point of view.

Q. Essentially a total falling out with reality?

A. Yes.

Q. Now, we have talked about characteristics, dis-

orders or personality disorders or antisocial conduct, are

all of these terms—are we talking about the same gen-

eral area separate and apart from a psychosis?

A. Yes, we are. There is a continuum from the

normal through the neurotic people, which generally have

anxiety, to what is referred to as a*personality or char-

acter disorder within this construction that Mr. Sand-

strom falls, and it can be further defined within that

as to what type of a personality disorder an individual

does have. And it is my opinion that it is an antisocial

sociopathic personality disorder. Perhaps that explains

it.

Q. And so it is clear an antisocial or personality dis-

order is not-a mental disease?

A. That is true, it is not a psychosis, it is not a

mental disease.

_Q. Would Mr. Sandstrom be able to function in so-

ciety, say in a common laborer’s job, truck driving job,

a job that would not require say a college education?

A. Given his personality or given his I.Q. or both.

Q. Well, start with the I.Q.

A. Given his I.Q. Mr. Sandstrom would be employ-

able, and would be able to function within society.

Q. It may take longer to train him?

A. Right, he would not be as quick—he would not be

as quick about picking up things, he would not have a

tremendous capacity for abstract thought, but there are

a lot of people functioning in society who have I.Q.’s

which are similar to Mr. Sandstrom’s.

Q. All right. How about his antisocial character-

istics?

A. I separated that in my response to you and an

antisocial person—in terms of the personality disorder

is generally—has a very poor outlook, they are often

running aloof of the law. They have a lot of difficulties

with drugs and alcohol, they have a lot of difficulties

with family maintenance, the maintenance—relationship

with their children, maintaining employment. It is gen-

erally a very—is a particularly long-term picture.

Q. Now, Doctor, at the time you examined Mr. Sand-

strom was he able to express to you the events of No-

vember 1, 1976, involving the homicide of Annie Jessen?

A. Yes, he was.

Q. Could he recall the facts and circumstances rather

clearly?

A. Yes, he could.

Q. And you have read the complete confession of

David Sandstrom? ,

A. Yes.

Q. In your opinion did he have the sufficient mental

capacity at that time to be conscious of what he was

doing? ;

A. At that time in my opinion he had the capacity

to be aware of what he was doing.

Q. Was he aware of the facts and circumstances at

that time?

A. I think he was aware of where he was, he was

aware that Mrs. Jessen was screaming. I believe that

he was aware of the fact that he hit her with the shovel.

I believe that he was aware that he picked up a knife

and I believe he was aware of the fact that he stabbed

her with that knife. |

Q. Therefore, would you say that he had the ca-

pacity to knowingly cause the death of Annie Jessen by

stabbing her with the knife?

A. Yes, in my opinion he had the capacity to know

that by stabbing her that there was a high probability

he was going to cause serious a res — ~~

Q. At the time of this crime did he have the canacity

to purposely and consciously be aware of picking up -

knife and actually inflicting the stab wounds to Annie

Jessen?

A. In my opinion, yes. In my opinion he purposely

hit her with the shovel first and he purposely picked up

the knife and he purposely inflicted the stab wounds on

Mrs. Jessen.

Q. Now, the terminology brought out in the question-

ing by defense counsel used the word deliberate and you

distinguished between planning in advance, did you mean

before he went into the house that in your opinion he

didn’t have a plan to cause the death of Annie Jessen?

A. In my opinion that is true. Before he went in

the house, in my opinion, it was not his intention or plan

or deliberation to cause the death of Mrs. Jessen.

Q. And at what point in time or under what cir-

cumstances do you think in your opinion that he formed

the purpose or had the knowledge to cause this act?

A. In my opinion it was at that point when he be-

came aware that he was not alone in the house and he

became aware by seeing Mrs. Jessen visually and he was

aware of her screaming that at that point he purposely,

in my opinion, began to inflict this series of events upon

her. r

MR. CONNORS: No further questions, your Honor.

THE COURT: Redirect?

MR. BOGGS: I would like redirect, your Honor.

REDIRECT EXAMINATION

BY MR. BOGGS:

Q. Doctor, in response to the question by Mr. Connors

you stated that you believed that David Sandstrom had

the capacity to purposely take the life of Mrs. Jessen,

is that right?

A. I believe so.

Q. Do you have an opinion—I believe, however, is

it not in fact true that you—it was your opinion that

his purpose in striking her with the shovel and his pur-

pose in stabbing her with the knife was to stop her from

screaming?

A. Yes, sir.

Q. Do you think he formed the intent and purpose of

taking her life?

A. In my opinion he did—he did not intend to kill her,

but that he was aware of the fact—he had the capacity

to be aware of the fact that the instruments that he

utilized were capable of causing her death.

Q. Do you think he was aware of that fact and he

was—he knew he was taking her life?

A. Do I believe that he was aware that he was taking

her life in the sense he knew that is what he was doing?

. Yes.

? In my opinion I believe that his intent was merely

to silence her, I don’t think he really considered it.

Q. Would it be fair to say that this was an act, an

impulsive act? ae

MR. CONNORS: Objection, a leading question.

THE COURT: Overruled. It’s repetitious but not

necessarily leading, ;

THE WITNESS: Yes, in my opinion it was im-

pulsive. As I have indicated, tried to indicate, I do not

think it was his purpose to kill her. Given the combina-

‘tion of his I.Q., his personality, the alcohol, and the im-

mediate circumstances, I think that it was an impulsive

poorly planned act.

MR. BOGGS: I don’t have any other questions, your

Honor.

MR. CONNORS: Your Honor, may I ask another

question?

THE COURT: That is a promise, one question.

RECROSS-EXAMINATION

BY MR. CONNORS:

Q. Doctor, in your opinion did David Sandstrom have

the capacity to know that stabbing Annie Jessen in the

back with the knife could cause her death?

A. Yes.

MR. CONNORS: Thank you.

(Whereupon witness was excuscd. )

THE COURT: Counsel, call your next witness.

MR. BOGGS: Dr. Michael Nash.

DR. MICHAEL NASH

was called as a witness, and being first duly sworn, was

examined and testified as follows:

DIRECT EXAMINATION

BY MR. BOGGS:

Q. Please state your name.

A. My name is Michael M. Nash.

And what is your occupation?

I am a licensed clinical psychologist.

That is what you are called, is that true?

Yes. |

Where do you reside?

I reside in Bozeman, Montana.

. What has been the experience and training that

has lead to your being a clinical psychologist?

A. I received my P.H.D. in psychology at the Uni-

versity of Montana in 1971. I received my masters in

psychology at the University of California, Riverside in

1965, and my law degree of—from the University of

Montana in 1967. In 1971 after graduating I went to—

I did my internship with the Department of Corrections

in the State of Wisconsin and completed the requirements

for clinical—to be a clinical psychologist.

I then went to Florida and taught on the faculty of

Florida State University in the department of clinical

psychology, obtained my license in psychology in Florida,

then returned to Montana in 1973 where I was the chief

in clinical services at the Montana State Prison for two

years and also was licensed as a psychologist in the

State of Montana and subsequently went into private

practice and am now consulting with the State Prison on

and during the period from 1970—well, throughout

graduate school and throughout my training I have been

particularly involved in the area of forensic psychology,

that is the area of psychology that particularly relates

to legal implications of various psychological cases.

Q. Mr. Nash, approximately how many cases concern-

ing the mental elements of criminal offenses have you

dealt with?

* I have personally testified in about 20 criminal

trials.

Q. And how many have you been involved in in a

diagnosis or treatment capacity?

A. Hundreds, I really couldn’t keep track.

Q. Mr. Nash, you were ordered by the Court to ex-

amine the Defendant David Sandstrom, were you not?

A. That is true.

OP POopPo

Q. And you did examine him, I believe, isn’t that

true?

A. Yes.

Q. I would like to have you describe to the jury

what your examination of Mr. Sandstrom revealed con-

cerning his intelligence and his personality?

A. In January of 1977, I conducted a psychological

interview with Mr. Sandstrom. I just took a couple of

hours, interviewed his parents for some period of time

and an hour to an hour and a half to administer some

further psychological tests and further interviews and I

provided a report and then I saw him again in May of

this year, May 1st, to further explore some particular

questions which were brought up in a preliminary

hearing.

I administered the Wechsler Adult Intelligence Scale,

the Minnesota Multiphasic Personality Inventory. I used

pictures and asked him to tell me a story about those

pictures. I had him do some figure drawings of a man

and a woman. I gave him the Word Association Test.

As a result of these tests I found that he had a Verbal

intelligence quotion of 79, which is a score that indicates

that he is significantly in a statistical sense—he is meas-

urably and statistically and significantly in a lower in-

telligence classification than the majority of people would

be in, which is known clinically as a borderline—a level

of borderline range of intelligence. ‘

The MMPI, the Minnesota Multiphasic Personality In-

ventory resulted in a series of scales of scores. On the

series of—well, 13 scales. Three of which have to do

with whether or not it is a valid test, and they indicated

in fact it was a valid test. Then you interpret the other

scales in terms of the relationship of one scale to an-

other, and in this particular—in this case the scales that

were elevated are those which are often associated with

individuals who have a lack of impulse control, sus-

piciousness, antisocial feelings or at least attitudes which

deviate from the majority of attitudes of the culture, a

lack of consistent internal principles. In other words,

the behaviors we engage in which are antisocial or wrong

do not even have any particular rational purpose in-

ternally.

AT TL BIAGIO re?

In other words, it is not a clear-cut dedicated—for

example, to a criminal life style it is impulsive criminal

acting out and some possibility of an emotional dis-

turbance.

Further, tests then were used and interpreted to de-

termine the extent and whether or not there was a serious

emotional disturbance and the additional tests tended to

indicate while he was not that, he was not a very emo-

tional person, that he in fact repressed feelings of guilt

and—but he did not approach the extent of a psychotic

or an insane dimension.

_ The tests in general—they reflected intellectual limita-

tion, emotional immaturity, poor impulse control and

confusion. They indicated a life style which is char-

acterized by impulsive immediate gratification of im-

pulses, little planning for thought, excessive drinking and

states of rather constant intoxication and poor social

relationships.

_ Q. Would it be correct to say that it was your opin-

ion that David Sandstrom had little ability to analyze

either the past or the future?

MR. RADONICH: To which we would object, it is

leading.

THE COURT: Sustained.

BY MR. BOGGS:

Q. Now, the I.Q. you found of 79, that was

I.Q. that Dr. Stratford found, isn’t that right? cae

A. Dr. Stratford and I approached the determination

of the level of intelligence in slightly a different fashion.

He approached it in the sense of a range of abilities and

a clinical comparison with other cases he has seen in

the matter, which he has been trained in. My approach

is to use a test that gives you a concrete score.

Both of us—in other words we independently ended

up with the same classification which is borderline intel-

ligence from different approaches.

Q. Now, would you characterize the elements of Mr.

Sandstrom’s personality as you found them

personality disorder? to be a

26 “

A. That was my conclusion. My opinion is that he is

suffering from a personality disorder, character disorder,

or rather neurotic or psychotic conditions.

Q. Would it be your opinion that his personality dis-

order—or let me ask you this question. What would be

the effect of alcohol consumption on the elements of that

personality disorder?

A. Generally it would mean paying less attention to

the realities of the environment around him and greater

tendencies to act impulsively, act for the immediate value,

what seems to be happening, to be less rational than he

would be otherwise, exercising worse judgment.

Q. As a lawyer I assume you are familiar with the

aspects of Montana Criminal Code that pertains to men-

tal disease or defect, is that true?

A. Yes, I am.

Q. Do you have an opinion as to whether or not Mr.

Sandstrom suffers from a mental disease or defect with-

in the meaning of those provisions?

A. In my professional opinion as a psychologist he

does not have a mental disease or defect which would

make him unable to appreciate the consequences of his

conduct or enable him to conform his conduct to the rule

of law.

Q. Now, you are familiar with the facts that con-

stituted the events of the death of Annie Jessen, is that

true?

A. Yes, I am.

Q. You read the confession of David Sandstrom?

A. Yes, I did.

Q. In the course of your examination of Mr. Sand-

strom was anything revealed to you that caused you to

doubt any of the facts stated in the confession?

A. No. :

Q. Well, I would ask you to assume those facts for

the purposes of the following questions.

Do you have an opinion as to whether or not David

Sandstrom deliberated on the death of Mrs. Jessen?

A. Yes.

Q. And what is that opinion?

A. In my opinion he did not anticipate or plan the

Geath of Mrs. Jessen. He was in the reacting—at the

time of the offense I believe his mental condition could

best be described as a condition of—a range of frustra-

tion and anger and that he was trying to prevent her

from screaming and that if that had occurred at some

earlier stage he may not have gone any further, but

that he took increasingly more severe steps to try to stop

her from screaming and then that ultimately brought her

to her death.

Q. I believe it was your answer you do not believe

he deliberated on her death?

A. Yes.

Q. Would you say that this was well—let me ask you

this. Do you believe that David Sandstrom on the early

morning of November 1st of 1976 formed the specific in-

tention to take Mrs. Jessen’s life?

MR. RADONICH: To which we object, it calls for a

conclusion, it invades the province of the jury and it is

not an opinion.

THE COURT: Sustained.

MR. BOGGS: I don’t have any other questions, your

Honor.

THE COURT: You may cross-examine.

CROSS-EXAMINATION

BY MR. RADONICH:

Q. Mr. Nash, I believe you stated that you do not

think David Sandstrom deliberated, do you mean that in

the same context as Dr. Stratford when he said formed

a plan?

A. Ihave an opinion he did not form a plan.

Q. Do you equate this with the deliberate thing that

counsel speaks of?

A. I believe that was the context that was advanced.

Q. I believe you characterized his problem as a per-

sonality or character disorder. What do you mean?

A. A character disorder is a distinguished neurosis

or psychotic condition generally which are thought of as

being processes of the mind that, causes a neurosis 01

psychosis. It is the process of the mind that causes

an internal distress or makes them unable to cope with

reality. A character disorder is a learned way of ap-

proaching the world, it is a life style, as opposed to

descriptions of internal processes.

Q. It’s true, is it not, in various aspects of character

disorders—most people have these?

A.. Everybody has a character and when one aspect of

that character causes the individual difficulties in coping

with society we call that a character disorder.

In other words, everybody has this to some extent or

another, a touch of greed or larceny or—but when that

becomes a predominant operating factor you consider

this individual a thief and that is a character disorder.

Q. I believe you indicated in one of the tests you had

given to him that he had a lack of impulse control, a

suspiciousness, antisocial feeling, those are elements that

any ordinary person could have but he would not be out

of reality, is that correct?

A. Yes.

Q. And a person could have all of those but still

have them in control?

A. Yes, sir.

Q. How did you find Mr. Sandstrom when you ex-

amined him in January, was he cooperative to you to an

extent?

A. I found him to he complying on the surface but

somewhat leery of me and somewhat reticent. I had to

drag information out of him. As the examination went

along that became less difficult and when I saw him in

May he was substantially easier to get information from

but generally at the outset there was some difficulty in

really establishing rapport. :

Q. Was he at that time in touch with reality?

A. Yes.

Q. Did he appear to be alert to you?

A. Yes, at that time my notes reflected he appeared

to be alert and oriented to the environment, although he

appeared to have kind of a limited range of concern

about the world. He was focusing principally right on

his immediate condition and that is—seems to be char-

acteristic of his life style.

Q. He has the ability to decide what course of action

—and capacity to decide one course of action from an-

other, doesn’t he?

A. Yes, he does.

Q. I believe you have stated in your report that he

could decide not to take an alcoholic substance?

A. He can, he has the capacity to make those de-

cisions.

Q. So that he could stop drinking or whatever, is

that correct?

A. There is no mental illness that prevents him from

doing so.

Q. All right. Just referring to alcohol in general, this

is a depressant, is it not?

A. Yes.

Q. And it tends to depress the emotions and feelings

of people?

A. It tends to inhibit judgment.

Q. Let me rephrase that, Mr. Nash. If a person has

consumed a great deal of alcohol he would be so de-

pressed that he may pass out?

A. Yes.

Q. As contrasted to a small amount that he may take,

he may just weave when he walks?

A. Yes.

Q. So that depending upon the amount that he had

it ries dictate how he wouid act, wouid that be correct?

. Yes.

Q. And if he had a small amount of alcohol he would

not stagger when he walked?

A. Well, these are all just on a continuous—you could

be sober or drunk or very drunk, but in—yeah.

Q. But these are physical characteristics that would

show if the person was sober, partly drunk or really

drunk? ,

A. Sure.

Q. And the physical characteristics being staggering,

slurring of speech, loss of thought contents?

A. One of the first things that begins to deteriorate

with increasing amount of alcohol is the disruption of

equilibrium, the ability to maintain balance and the more

intoxicated you get the less feedback you get from the

external environment, so that the—you don’t hear quite

what you are saying at the same time you are saying it

and you get a slurness of speech, difficulty in maintaining

the upright position without assistance and so on. |

Q. And a person that is progressively drinking more

is getting progressively deeper in a state of these types

of things?

A. Yes.

Now, in regard to your testing of Mr. Sandstrom,

does he have the intelligence to function in society?

A. Yes, he does.

Q. He could be a truck driver or could be a—some

type of activity that may require training but would not

require—he could learn these things, could he not?

A. Generally with this intelligence he would be ex-

cluded, what would be considered skilled trades and I

believe truck driving would be a skilled trade.

Q. Well, if he could drive a car he could probably

be taught to drive a truck, a small normal delivery truck,

as contrasted to across the country truck?

A. Not across the country.

Q. Could he at the same time have similar activities

of digging ditches, working as a laborer, this type of

thing?

A. Yes.

Q. And could he function as that?

A. Yes, from his intellectual perspective.

Q. I am referring only to the I.Q. Now, Doctor, I

would like to refer you to this handbook which is a

handbook of diagnostic and statistical manual of mental

disorders put out by the American Psychiatrie Associa-

tion and ask you to refer to page 14 where it’s con-

tained that a borderline mental retardation is an I.Q.

of between 68 and 83, is this how you arrived—when you

determined the 79 I1.Q., is this how you arrived at a

borderline mental retardation?

A. Basically, yes.

Q. Insofar as the I.Q. is concerned?

A. Yeah.

Q. Would it be fair to say then that if he had an

I.Q. of 83 or above he would then be a normal person?

A. Well, he would be in a range that—in that case

what we’d call normal.

If it was a lower I1.Q. than would be normai that

would be categorized as having a personality or character

disorder?

A. The term we are dealing with here with mental

defect—any time we have an I.Q. of less than 83 we have

an area of mental defect, above 83 even though there is

a separate statistical category it is not considered a

mental defect, in this case it is.

Q. Let me ask you this then, is it true that the aver-

age mean I.Q. is 100?

A. The mean I.Q. is 100.

. And presumably half the people are above that

and half the people are below that?

A. That’s right.

Q. The people then between the 83 and 100—well, the

83—excuse me. The 100, down below to zero, that would

be half the people, is that correct?

A. From 100 to zero it would be half the people.

Q. Now, the people between 83 and 100 would be

—a so far as mental defect is, considered normal?

. Yes,

Q. And then above the 100 they would be considered,

I suppose, brilliant?

A. Well, above 100 and 115 they would be considered

measurably—as measurably more intelligent as somebody

with the less—85 I.Q. is measurably less capable. 85 per-

cent of the total fall between the range of 85 and 115.

Q. Referring, Mr. Nash, to when David Sandstrom

was in the home of Annie Jessen’s residence on November

lst, what is your opinion as to whether or not he had

the capacity to purposely pick up the knife?

In my opinion, he had the capacity to do that, to

know that he was picking up the knife, to intend to pick

up the knife.

Q. And did he have the capacity to know when he

oy up the shovel that hitting Mrs. Jessen would harm

A. Yes.

Q. When he began stabbing Mrs. Jessen, did he have

the capacity to know that stabbing her could result in

her death?

A. I believe he had the basic capacity to do so.

Q. To know that this would be the result?

A. Yes.

MR. RADONICH: I have no further questions.

MR. BOGGS: May I reopen my direct examination,

there is an area I neglected.

THE COURT: Very well.

FURTHER DIRECT EXAMINATION

BY MR. BOGGS:

Q. Mr. Nash, you recall do you not that in the con-

fession it stated that Mr. Sandstrom sexually violated

Mrs. Jessen, do you recall that?

A. Yes, I do.

Q. In your examination of Mr. Sancs:rom were you

able to uncover evidence of sexual perversion or disorder

or anything of that kind?

A. No—

MR. RADONICH: To which we object, this has noth-

ing to do with the sexual end, your Honor, outside the

province of the case.

THE COURT: Overruled.

THE WITNESS: No, not in the sense of perversion,

no.

BY MR. BOGGS:

. Do you have an opinion as to the mental state

of David Sandstrom while he committed this act?

A. Yes, I do.

Q. What is that opinion? ;

MR. RADONICH: To which I object, that is outside

the scope of this case, what his mental condition was

after the homicide.

THE COURT: Sustained.

MR. BOGGS: Very well. May I have one question in

rebuttal?

THE COURT: Redirect.

REDIRECT EXAMINATION

BY MR. BOGGS:

Q. Dr. Nash, in response to a cross-exqmination ques-

tion you believe David Sandstrom had the capacity to

comprehend or know what he was doing—stabbing Mrs.

Jessen and as a result taking her life. Do you have an

opinion as to whether he had that knowledge in the sense

of a present awareness that that is what he was doing?

A. Yes,1do.

Q. And what is your opinion?

A. In my opinion at the time the killing took place

he was in a—had a condition which is described as a

rage, meaning that he was less conscious of awareness

of the activities that were going on. This is partly a re-

sult of his intelligence, partly a result of the fact that he

had some alcohol, partly the result of the fact that he

had tendencies of repressive feelings of guilt than when

they are provoked to, flooding out, his anger projection

and at that time that the act was going on he had a less

appreciation for the logical consequences of the behavior

that he was engaging in, that he would have ordinarily.

But, this did not approach a psychotic condition so

therefore he had the capacity to appreciate it.

If he would have been in a psychotic condition he

would have little memory of tHe events, but in fact he

does remember them. So, psychologically the capacity was

there but the likelihood or the nature of that appreciation

has been somewhat reduced.

MR. BOGGS: No other questions.

MR. RADONICH: We have no further questions.

j THE COURT: Thank you, Doctor, you may step

own.

THE COLIQUY BETWEEN THE COURT AND PE-

TITIONER’S ATTORNEY WITH RESPECT TO THE

INSTRUCTION HERE AT ISSUE. [Official Tran-

script pages 332 line 12 through 333 line 6].

THE COURT: The Court proposes to give Instruc-

tion No. 5, offered by the State as No. 3.

MR. BOGGS: Your Honor, I object to that instruc-

tion. I can cite to your Honor a number of cases, I be-

lieve they are all in the Federal Court or—I believe

in the Federal Court, one in the 9th Circuit Court of

Appeals that have disproved the use of this instruction.

The holding has been that the instruction has the effect

of shifting the burden of proof on the issue of intent

to the defense and that is inpermissible under the Federal

Constitution, due process of law. Stating from the case

of Mullaney vs. Wilbur the United States Supreme Court

ease, the 5th Circuit has categorically denounced and the

9th Cireuit—and it was an error in a particular case in

which it came out—it was not reversible but nonethe-

less it was an error to use the instruction.

My intern can give you those citations if you would

like to see them,’

THE COURT: You can give those to the Supreme

Court. The objection is overruled. :

INSTRUCTIONS GIVEN BY JUDGE BOYD

INSTRUCTION NO. 3

The defendant, David Sandstrom, is by information

charged with the crime of deliberate homicide, a felony,

in that on or about November 1, 1976, in Deer Lodge

County, Montana, he purposely or knowingly caused the

death of Annie Jessen by stabbing the said Annie Jessen

in the back with a knife.

Before you may convict the defendant, David Sand-

strom of the crime of deliberate homicide, a felony, you

must be convinced beyond a reasonable doubt of the fol-

lowing elements of this crime:

1) That the defendant did cause the death of Annie

Jessen on November 1, 1976, in Deer Lodge County,

Montana; and,

2) That the defendant caused the death of Annie Jes-—

sen purposely or knowingly.

INSTRUCTION NO. 4

You are instructed that the law presumes a person

innocent until he is proved guilty, and this proof must

be of a nature to satisfy your minds beyond a reasonable

doubt of the guilt of the accused. The mere fact that an

information has been filed, charging a person with a

crime, does not, in itself, raise a presumption of guilt.

The presumption of innocence has the weight and effect

of evidence in the Defendant’s behalf, and this should

continue until it is rebutted by competent evidence which

displaces any reasonable doubt you might otherwise have

of the Defendant’s guilt.

INSTRUCTION NO. 5

The law presumes that a person intends the ordinary

consequences of his voluntary acts.

INSTRUCTION NO. 6

A Material element of every crime is a voluntary act,

which includes an omission to perform a duty which the

law imposes on the offender and which he is physically

capable of performing.

INSTRUCTION NO. 7

“Knowingly” is defined as follows: 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 circumstances 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.

INSTRUCTION NO. 8

' “Purposely” is defined as follows: A person acts pur-

posely with respect to a result or to conduct described by

a statute defining an offense if it is his conscious object

to engage in that conduct or to cause that result.

INSTRUCTION NO. 9

Purpose and knowledge are manifested by the circum-

stances connected with the offense. Purposes and knowl-

edge need not be proved by direct evidence, but may be

inferred from acts, conduct and circumstances appearing

in evidence.

INSTRUCTION NO. 10

A person who is in an intoxicated condition is crimi-

nally responsible for conduct unless such condition is in-

voluntarily produced and deprives him of his capacity

to appreciate the criminality of his conduct or to conform

his conduct to the requirements of law. An intoxicated

condition may be taken into consideration in determin-

ing the existence of a mental state which is an element

of the offense.

INSTRUCTION NO. 11

“Mitigated deliberate homicide” is defined as follows:

Criminal homicide constitutes mitigated deliberate homi-

cide when a homicide which would otherwise be deliberate

homicide is committed under the influence of extreme

mental or emotional stress for which there is reasonable

explanation or excuse. The reasonableness of such ex-

planation or excuse shall be determined from the view-

point of a reasonable person in the actor’s situation.

INSTRUCTION NO. 12

You are instructed that the defendant, David Sand-

strom, has abandoned the defense of mental disease or

defect and you may not acquit the defendant on that

basis.

s INSTRUCTION NO. 13

If you are convinced beyond a reasonable doubt that

the defendant, David Sandstrom, caused the death of

Annie Jessen on November 1, 1976, in Deer Lodge

County, Montana, but you are not convinced beyond a

reasonable doubt that the defendant caused the death

of Annie Jessen purposely or knowingly, then you should

find the defendant guilty of mitigated deliberate homi-

cide.

INSTRUCTION NO. 14

If you are not convinced beyond a reasonable doubt

that the, defendant, David Sandstrom, caused the death

of Annie Jessen on November 1, 1976, in Deer Lodge

County, Montana, purposely or knowingly, then you should

find the defendant not guilty of deliberate homicide.

INSTRUCTION NO. 15

_ You are to draw no conclusions or inferences from

the fact that the defendant has not testified in this case,

and you are entitled to draw no conclusions or inferences

as to his reason in that regard.

IN THE DISTRICT COURT OF THE

THIRD JUDICIAL DISTRICT OF THE

STATE OF MONTANA

IN AND FOR THE COUNTY OF DEER LODGE

Cause No. 2877

STATE OF MONTANA, PLAINTIFF

—v3s.—

DAVID SANDSTROM, DEFENDANT

VERDICT—Filed July 25, 1977

Deliberate Homicide

We, the jury in the above entitled action find the de-

fendant DAVID SANDSTROM, guilty of the crime of

deliberate homicide.

Dated this 21 day of July, 1977.

/8/ Robert L. Buh!

Foreman

IN THE DISTRICT COURT OF THE

THIRD JUDICIAL DISTRICT OF THE

STATE OF MONTANA

IN AND FOR THE COUNTY OF DEER LODGE

No. 2877

STATE OF MONTANA, PLAINTIFF

—v3.— ;

DAVID SANDSTROM, DEFENDANT

J UDGMENT—Filed July 25, 1977

After written waiver of preliminary hearing by the

defendant, David Sandstrom, and Order of Justice of the

Peace John Sajcich binding the defendant over to District

Court for trial, a criminal Information was filed on

December 2, 1976, by the County Attorney for Deer Lodge

County as attorney for the State of Montana, charging

the defendant with the following FELONY: Deliberate

Homicide, in violation of Section 94-5-102, R.C.M. 1947,

as amended, committed on or about November 1, 1976.

The Defendant was arraigned on December 2, 1976,

and advised of the nature of the charges against him,

of the maximum sentence after a plea or verdict of

guilty, of his right to a jury trial, and of his right to

counsel, either retained by the defendant or appointed

by the court if the defendant was indigent.

The defendant was thereafter represented by Public

Defender Byron Boggs and entered a plea of “Not Guilty”

to the above criminal charge. |

A trial by jury was held on July 18, 1977, and the

jury returned the following verdict:

“IN THE DISTRICT COURT OF THE THIRD

JUDICIAL DISTRICT OF THE STATE OF MON-

TANA, IN AND FOR THE COUNTY OF DEER

LODGE

No. 2877

STATE OF MONTANA, PLAINTIFF

—v38.—

DAVID SANDSTROM, DEFENDANT

VERDICT

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

defendant, DAVID SANDSTROM, guilty of the crime of

Deliberate Homicide.

Dated this 21st day of July, 1977.

/s/ Robert L. Buhl

Foreman”

The defendant appeared in open court on July 25,

1977, and was 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 replied in the

negative;

NOW, THEREFORE, it is the sentence and judgment

of the court as follows:

(1) The defendant shall be imprisoned in the State

Prison at Deer Lodge, Montana, for a period of one

hundred (100) years; that said sentence shall be served

consecutively with the sentence and Judgments ordered in

Deer Lodge County causes numbered 2878 and 2885

respectfully. —

The defendant is hereby remanded to the custody of

the Sheriff of Deer Lodge County, for transportation to

the State Prison for execution of this the sentence and

judgment of the court.

Dated this 25th day of July, 1977.

/s/ Robert J. Boyd

District Judge

IN THE DISTRICT COURT OF THE

THIRD JUDICIAL DISTRICT OF THE

STATE OF MONTANA

IN AND FOR THE COUNTY OF DEER LODGE

July 26, A.D. 1977

Present, Hon. ROBERT J. BOYD

STATE OF MONTANA

against

DAVID SANDSTROM

Convicted of DELIBERATE HOMICIDE

JOSEPH CONNORS

The County Attorney, with the Defendant—and coun-

sel BYRON BOGGS came into Court. The Defendant

was duly informed by the Court of the nature of the in-

dictment found against him for the crime of DELIBER-

ATE HOMICIDE committed on the 1st day of Nov. A.D.

1977, and of arraignment and plea on the 3rd day of

DECEMBER, A.D. 1976, of “Not Guilty of

as charged in the indictment.” The Defendant was then

asked if he had any legal cause to show why judgment

should not be pronounced against him to which he re-

plied that he had none. And no sufficient cause being

“shown or appearing to the Court, thereupon the Court

renders its judgment: That whereas the said DAVID

SANDSTROM having been duly convicted in the Court

of the crime of DELIBERATE HOMICIDE

It is Therefore, Ordered, Adjudged and Decreed, That

the said DAVID SANDSTROM be punished by im-

prisonment in the Penitentiary of the State of Montana,

for the term of 100 years at hard labor, and that a

civil judgment be entered against the said DAVID

SANDSTROM for the costs of this prosecution.

The defendant was then remanded to the custody of

the Sheriff of the said County of DEER LODGE to be

by him delivered into the custody of the proper officers

of said Penitentiary. ,

IN THE DISTRICT COURT OF THE

THIRD JUDICIAL DISTRICT OF THE

STATE OF MONTANA

IN AND FOR THE COUNTY OF DEER LODGE

The State of Montana, To the Sheriff of the County of

DEER LODGE, State of Montana, and the Warden

and Officers in charge of the Penitentiary of the

State of Montana—GREETING:

Whereas, DAVID SANDSTROM, having been duly

convicted in our District Court of the THIRD Judicial

District of the State of Montana, in and for the County

of DEER LODGE of the crime of DELIBERATE HOMI-

CIDE and judgment having been pronounced against him

that he be punished by imprisonment in the Penitentiary

of the State of Montana, for the term of 100 years con-

secutively all of which appearing to us of record, and a

certified copy of the judgment being endorsed herein

and made a part hereof:

Now, This is to Command You, the Sheriff of the

County of DEER LODGE to take and keep and safely

deliver the said DAVID SANDSTROM into the custody

of the said Warden, or other Officer in charge of the said

Penitentiary, at your earliest convenience.

And This is to Command You, the said Warden and

other officers in charge of the Penitentiary of the State

of Montana, aforesaid, to receive of and from the Sheriff

of the County of DEER LODGE the said DAVID

SANDSTROM convicted and sentenced as aforesaid, and

HE the said DAVID SANDSTROM keep and imprison

in the said Penitentiary for the State of Montana, for

the term of 100 years.

And these presents shall be your authority for the

same. Herein fail not.

Witness: Hon. ROBERT J. BOYD, Judge of the said

District Court, at the Court House in ANACONDA in

the County of DEER LODGE this 26th day of July,

A.D. 1977.

Attest:

My hand and the seal of said Court, the day and year

last above written.

/s/ Helen Meloy

Clerk

/s/ By Angela Kieser

Deputy Clerk

ee vee ae nee ee

IN THE SUPREME COURT OF THE

STATE OF MONTANA

1978

No. 14064

STATE OF MONTANA, PLAINTIFF AND RESPONDENT

—v3.—

DAVID SANDSTROM, DEFENDANT AND APPELLANT

Appeal from: District Court of the Third Judicial Dis-

trict, Honorable Robert J. Boyd, Judge

presiding.

Counsel of Record:

For Appellant:

Byron Boggs argued, Anaconda, Montana

For Respondent:

Hon. Mike Greely, Attorney General, Helena, Mon-

tana

John Radonich argued, County Attorney, Anaconda,

Montana

Submitted: May 3, 1978

Decided: June 8, 1978

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, Mon-

tana, 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 re-

ceived 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. Jessefi” The

confession was subsequently corroborated by certain phy-

sical evidence. ;

Based upon the confession and supporting evidence,

defendant was charged, by an Information filed Decem-

ber 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 responsi-

bility, 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 tes-

timony of four witnesses. Three of the four witnesses

testified that, despite their perception that many Ana-

conda areas residents had formed some opinion concern-

ing the case, the defendant could receive a fair trial in

Deer Lodge County. The fourth witness, Oscar Sand-

strom, the father of defendant, testified primarily con-

cerning abusive phone calls he had received following his

son’s arrest. The motion was denied with leave to re-

new at the time of jury selection.

The trial on the charge commenced on July 18, 1977.

Defendant’s renewed motion for change of venue was

denied. Defendant further moved that the jurors be ex-

amined in voir dire individually and in segregation,

which motion was also denied. Following voir dire, de-

fendant 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

Oe AN A ACT A eo nd

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 defend-

ant and determined he was able to appreciate the con-

sequences of his actions, despite his low intelligence level

and aggressive/impulsive personality.

The case-in-chief for the state consisted of defend-

ant’s confession, together with the corroborating physical

and circumstantial evidence. Defendant called as wit-

nesses the two psychiatrists who had examined defendant

prior to trial. The witnesses testified that, while defend-

ant 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 conscious of his

activity in bringing about the result.

Following the reception of evidence and upon their

deliberations, the jury returned a verdict convicting de-

fendant of the crime as charged. Defendant was sub-

sequently 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

District Court abuse its discretion in denying defend-

ant’s motions for change of venue? and (2) Did the

District Court err in giving court’s instruction No. 5?

Defendant first argues that the District court abused

its 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 main-

tained 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 discre-

tion 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.2d 770;

State v. Corliss, (1967), 150 Mont. 40, 430 P.2d, 632;

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

It has been held that mere publication of a news

story deal’ng with the facts and circumstances of the

crime is not a sufficient basis for change of venue. Pub-

lished accounts of crimes are not considered prejudicial

unless so passionate as to excite undue prejudice, render-

ing it impossible to empanel a trial jury free from preju-

dice 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 revers-

ing a conviction in which change of venue had been

denied, despite adverse pretrial publicity. The cases,

however, are clearly distinguishable on the basis of the

volume and content of the publicity.

Here, the publicity under consideration consists of 17

newspaper articles concerning various aspects of the

crime, the investigation, and the subsequent arrest of

defendant. Two of the articles, published after defend-

ant’s arrest, contain a picture 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 ensuing 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 de-

fendant’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

AN ED ee Pi a ge

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 them. It is suffi-

cient if the juror can lay aside any impressions or opin-

ions and render a verdict based upon the evidence pre-

sented 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

giving court’s instruction No. 5 to the jury. Instruction

No. 5 states:

“The law presumes that a person intends the ordi-

nary consequences of his voluntary acts.”

The given instruction paraphrases the language of section

93-1301-7(3), R.C.M. 1947, giving rise to the rebuttal

presumption.

Defendant, in essence, contends the given instruction

shifts to a defendant the burden of disproving an ele-

ment of the crime charged, i.e. intent. It is maintained

the state is thus relieved from proving an essential ele-

ment of the crime charged, contrary to recent pronounce-

ments of the United States Supreme Court. In re Win-

ship, (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 Ed 2d 508; Patterson v. New York, (1977),

432 U.S. 197, 97 S.Ct. 2319, 538 L Ed 2d 281.

The recent decisions relied on by defendant generally

prohibit, under the auspices of the due process clause,

shifting to a defendant, such as by presumption, the

burden of proof regarding an essential element of the

offense, most typically the element of criminal intent. In

re Winship, supra; Mullaney v. Wilbur, supra; Patter-

son v. New York, supra. However, such cases do not

prohibit allocation of some burden of proof to a defend-

ant 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

June 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. Mc-

Kenzie, 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 in-

tent which, of course, can never be proved directly

***” ___ St.Rep. ——.

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 in-

struction 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 instruction does not violate due process stand-

ards as defined by the United States or Montana Con-

stitution, and as interpreted by relevant case authority,

_and therefore does not constitute reversible error.

The conviction of defendant is affirmed.

/s/ John Conway Harrison

Justice

We concur:

/s/ Frank I. Haswell

Chief Justice

/8/ Gene B. Daly

/s/ Daniel J. Shea

Justices

IN THE SUPREME COURT OF THE

STATE OF MONTANA

14064

D.C. #2877

March Term A.D. 1978

The Chief Justice of the Supreme Court of the State of

Montana:

To the Honorable J udge of the District Court of the

Third Judicial District, in and for the County of Deer

Lodge, Greeting:

WHEREAS, In the said District Court in a cause

between State of Montana Plaintiff and Respondent and

David Sandstrom Defendant and Appellant wherein the

Judgment of the said District Court, entered in said

cause on the 11th day of August A.D. 1977 was in favor

of the said Plaintiff and Respondent and against the

said Defendant and Appellant as by the inspection of the

transcript of the record of said Court in said cause which

was brought into the Supreme Court of said State by

virtue of an appeal, agreeably to the statue 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, one thousand nine hundred and seventy-

eight said cause came on to be heard before said Su-

preme Court and was argued by counsel.

WHEREAS, On consideration, it is now here ordered

and adjudged by this Court that the Judgment of the

Court below, entered in this cause on the 11th day of

August A.D. 1977 is affirmed.

ee —

ewer i

A ei oles. eth

Costs in this Court:

Appellant Appearance — $ none

Respondent Appearance — $ none

OME. | ca wh ccuvan —$ none

June 8 A.D.1978 *

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 Mon-

tana ought to be had, not inconsistent with the opinion

hereto attached.

WITNESS: The Honorable Frank I. Haswell Chief

Justice of the Supreme Court of the State of Montana,

this 29th day of June A.D. 1978.

/8/ Richard T. Conboy

Deputy Clerk of the

Supreme Court of the

State of Montana

IN THE SUPREME COURT OF THE

STATE OF MONTANA

No. 14064

STATE OF MONTANA, PLAINTIFF AND RESPONDENT

v8.

DAVID SANDSTROM, 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 re-

hearing in the above named cause is denied.

DATED this 28th day of June, 1978

/8/ Frank I. Haswell

Chief Justice

/s/ Gene B. Daly

/3/ John Conway Harrison

/8/ John C. Shuhey

Justices

SUPREME COURT OF THE UNITED STATES

| No. 78-5384 :

DAVID SANDSTROM, PETITIONER

MONTANA

On PETITION FOR WRIT OF CERTIORARI TO the Supreme

Court of the State of Montana.

ON CONSIDERATION of the motion for leave to proceed

herein in forma pauperis and of the petition for writ of

certiorari, it is ordered by this Court that the motion

to proceed in forma pauperis be, and the same is hereby,

granted; and that the petition for writ of certiorari be,

and the same is hereby, granted.

January 8, 1979

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.