Appendix — Hess v. MacAskill

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

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(2 — Cour, vas

961358 wis 1 6 1996)

, NO Aeon Tee

IN THE SUPEME COURT OF THE UNITED STATES

October Term, 1995

CLARA M. HESS,

Petitioner,

Vv.

STEVEN MacASKILL, DIRECTOR

Women's Correctional Center,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

Charles F. Moses

MOSES LAW FIRM

P. O. Box 2533

Billings, MT 59103-2533

Telephone: (406) 248-7702

Counsel for Petitioner

—— rrr ~ Pe"

TABLE OF CONTENTS TO APPENDIX

Memorandum of the Ninth Circuit

Court of Appeals filed September 20, 1995 A

Order Denying Petition for Rehearing B

Information filed in Park County, Montana

on October 23, 1989 +

Decision of the Montana Supreme Court

decided March 10, 1992 D

Petition for Writ of Habeas Corpus E

Memorandum and Order of the United

States District Court granting the State's

Motion for Summary Judgment and denying

the Petitioner's Motion for Summary

Judgment F

Memorandum and Order of the United

States District Court denying Motion

for New Trial or for Reconsideration G

Notice of Appeal H

FILED

Sep 20 1995

Cathy A. Catterson, Clerk

U.S. Court of Appeals

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN MacASKILL, Director

Women's Correctional Center,

CLARA M. HESS, ) No. 94-35446

)

Petitioner-Appellant, ) D.C. No. CV-93

) -00133-RWA

Vv. )

) MEMORANDUM!

)

)

)

Respondent-Appellee.

Appeal from the United States District Court

for the District of Montana

Richard W. Anderson, Magistrate Judge, Presiding

Argued and Submitted, August 11, 1995

Seattle, Washington

' This disposition is not appropriate for

publication and may not be cited to or used by the

courts of this circuit except as provided by Ninth

Circuit Rule 36-3.

A

2

Before: BEEZER and HAWKINS, Circuit Judges, and

TEVRIZIAN, District Judge.’

Clara Mae Hess filed this petition for a writ of

habeas corpus arguing that her Fifth and Sixth Amendment

rights were violated. She argues that her Fifth Amendment

rights were violated when the Montana State District Court

("state trial court’) ordered her to submit to psychological

and psychiatric evaluations. She also argues that she was

denied her Sixth Amendment right to counsel because her

counsel was not permitted in the room during the court-

ordered evaluations.

The district court had jurisdiction under 28 U.S.C.

§ 2254 and we have jurisdiction under 28 U.S.C. § 1291.

The district court denied the petition and we affirm.

I

Hess was charged with deliberate homicide in the

shooting death of her husband, William Hess. She pleaded

not guilty and gave notice of her intent to rely on the

defense of justifiable use of force based on the battered

woman's syndrome. The notice stated that Dr. Lenore

Walker, a known expert on battered woman's syndrome,

was to examine Hess and testify at trial. The State then

moved, and the state trial court ordered, a psychiatric and

psychological evaluation of Hess by two State experts.

The state trial court's order limited the examination

2 The Honorable Dickran M. Tevrizian, United

States District Judge for the Central District of

California, sitting by designation.

A

3

by providing "that defendant need not answer any questions

or produce any documents that she reasonably believes may

incriminate her, and her attorney may be present in the

waiting room of such examiner and may counsel defendant

at recesses and meals." After Hess refused to undergo the

court-ordered evaluations the state trial court ordered Lenore

Walker's testimony excluded unless Hess submitted to the

examinations. In July 1990, Hess submitted to the

examinations.

Hess was convicted of mitigated deliberate homicide

and was sentenced to thirty years with a five year

enhancement for use of a weapon. The Montana Supreme

Court affirmed the conviction holding that Hess "put her

mental state at issue when she relied upon the affirmative

defense of justifiable use of force and offered psychological

evidence . . . to support that defense." As a result, her

Fifth Amendment protection against self-incrimination was

not violated. The Montana Supreme Court also held that

Hess was not entitled to Miranda warnings nor was she

entitled to have her attorney present in the room during the

ordered evaluations. Hess subsequently filed this petition

for habeas corpus making the same claims of error. The

parties consented to submit the case to a magistrate judge

for decision of all pending motions and entry of judgment.

The magistrate judge denied the petition granting the State's

cross-motion for summary judgment. Hess timely appealed.

II

We review de novo the denial of a petition for

habeas corpus. Sanders v. Ratelle, 21 F.3d 1446, 1451 (9th

Cir. 1994). The state court's findings of fact are reviewed

for clear error and are entitled to a presumption of

correctness under 28 U.S.C. § 2254 (d). Thomas v.

A

4

Brewer, 923 F.2d 1361, 1364 (9th Cir. 1991).

Ill

Hess first contends that the State could not force her

to undergo the psychological and psychiatric examinations

for they would cause her to incriminate herself. She argues

that she did not put her mental state at issue because she

raised a defense of self-defense and not a defense of

insanity or diminished capacity.

In making this argument, Hess relies on Estelle v.

Smith, 451 U.S. 454 (1981). In Estelle, a defendant charged

with capital murder was sua sponte ordered to undergo a

psychiatric examination to determine his competency to

stand trial. id. at 457. After being found competent, the

defendant was tried and convicted. At the ensuing

sentencing phase, the State called the examining doctor, Dr.

Grigon, to testify as to the defendant's future dangerousness,

an element which must be proved beyond a reasonable

doubt before the death penalty may be imposed. Id. at

460.

In reversing the sentence of death, the Supreme

Court held "{a] criminal defendant, who neither initiates a

psychiatric evaluation nor attempts to introduce any

psychiatric evidence, may not be compelled to respond to

a psychiatrist if his statements can be used against him .

.." Id. at 468.

The Court later held that this quoted language from

Estelle "leads to another proposition: if a defendant requests

such an evaluation or presents psychiatric evidence, then, at

the very least, the prosecution may rebut this presentation

A

5

with evidence from the reports of the examination that the

defendant requested." Buchanan v. Kentucky, 483 U.S. 402,

422 (1987). In Buchanan, the prosecution and the defense

jointly moved for a mental examination for the purpose of

determining whether the defendant should be involuntarily

committed. Id, at 423. When the defendant later raised

the "mental status" defense of “extreme motional

disturbance," the prosecution sought to introduce the reports

of the psychiatrist in the rebuttal phase. Id. The Supreme

Court held that the introduction of the report for the limited

purpose of rebuttal was not a violation of the Fifth

Amendment.

Subsequent Ninth Circuit case law has held that a

defendant who puts his or her mental state at issue may be

compelled to submit to psychiatric examinations. See, ¢.g.,

United States v. Phelps, 955 F.2d 1258, 1263 (9th Cir.

1992) (insanity acquittee places his insanity at issue by

seeking release on the ground that he has recovered), cert.

denied, 504 U.S. 989 (1992). Thus, when a defendant

_ seeks to introduce evidence, through expert testimony, of

insanity or diminished capacity, the prosecution is permitted

to conduct an examination of the defendant by their own

expert.

While a battered woman's syndrome defense is not

technically a defense of insanity or diminished capacity, the

essence of the defense is that the defendant was so affected

by the abuse suffered that she believed she was in

imminent danger of serious bodily injury. In order to

present this defense, defendants rely on expert testimony,

based on psychological and psychiatric testing and

interviews, that the defendant suffers from symptoms

A

6

consistent with battered woman's syndrome. The state

should be entitled to the same quality of evidence as the

defense. The only way the state may rebut the defense is

to conduct its own examination and present its own expert

testimony.

The vast majority of state appellate courts to address

this issue have held that a trial court has the inherent

power to compel a defendant to submit to a mental

evaluation when she asserts an affirmative defense of self-

defense based on the battered woman's syndrome. See,

¢.g., State v. Myers, 570 A.2d 1260, 1266 (n.J. Super. Ct.

App. Div. 1990), certification denied 604 A.2d 598 (N.J.

1990; State v. Hickson, 630 So2d 172, 176 (Fla. 1993);

State v. Briand, 547 A.2d 235, 237 (N.H. 1988).

The examination ordered in this case was limited.

The state trial court ordered Hess to submit to an

examination only if she intended to use the expert

testimony of Dr. Lenore Walker. The State was permitted

to have Hess examined by experts of its choosing but the

State was only permitted to use this testimony during the

rebuttal phase of the trial. Finally, any opinions and

evidence gained from the evaluations could be used only to

rebut Hess’ battered woman's syndrome defense.

We hold that ordering Hess to~ submit to

psychological and psychiatric examinations after she

expressed her intent to rely on expert testimony to establish

7

the defense of battered woman's syndrome was not error.’

IV

Hess also argues that the State violated the Fifth

Amendment because they did not inform her of her

Miranda rights before the examinations. However, once

Hess sought to introduce psychological evidence in support

of a mental state defense, Miranda warnings before the

psychological examination were no_ longer required.

Hendricks v. Vasquez, 974 F.2d 1099, 1108 (9th Cir. 1992)

(citing Powell v. Texas, 492 U.S. 680, 684 (1989)).

V

Hess next argues that her Sixth Amendment right to

counsel was violated because her counsel was not permitted

in the room during the ordered examinations. For support,

Hess relies on Estelle v. Smith. In Estelle, Smith's counsel

had neither notice of the evaluations nor an opportunity to

consult with Smith about the nature of the evaluations.

451 U.S. at 471. The Court held that Smith was denied

his Sixth Amendment right to counsel. Id. See also

United States v. Garcia, 739 F.2d 440, 442 (9th Cir. 1984).

Unlike Estelle, Hess' counsel had notice of the

ordered examinations and ample opportunity to consult with

' Hess’ arguments concerning the applicability

of Montana statutes to her case are unavailing. Federal

habeas corpus relief may be granted only for violations

of the federal constitution. See Estelle v. McGuire,

502 U.S. 62, 68 (1991). Any argument that the

examinations were ordered in violation of Montana

Statutes is state error and habeas relief may not be

had.

A

8

her. While not present in the room, Hess’ counsel was

present in the office of Dr. Walters during both of his

meetings with Hess. Hess was able to consult with counsel

during all breaks. Hess' counsel was again present in the

office during Dr. Stratford's first examination and was

available by telephone for the second.

Thus, Hess' counsel had notice of the examinations,

was able to consult with Hess concerning the nature and

scope of the examinations, was present in the waiting room

during the examinations and was able to consult with Hess

during breaks. This was constitutionally sufficient. See

Buchanan v. Kentucky, 483 U.S. at 424. Hess does not

have the further right to have her counsel physically present

in the room during the course of the examination. See

United States v. Bondurant, 689 F.2d 1246, 1249 (Sth Cir.

1982) (defendant has no right to have counsel present in

examining room). Hess was not denied her Sixth

Amendment right to counsel during these psychiatric and

psychological examinations.

VI

We hold that the state trial court did not violate

Hess' rights under the Fifth Amendment by compelling her

to submit to psychological and psychiatric examinations after

she expressed her intent to assert a battered woman's

syndrome defense. We also hold that Hess’ Sixth

Amendment right to counsel was not violated when her

counsel was not permitted in the room during the

evaluations. We affirm the denial of the writ of habeas

corpus. AFFIRMED.

FILED

Oct 19 1995

Cathy A. Catterson, Clerk

U.S. Court of Appeals

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLARA M. HESS, ) No. 94-35446

)

Petitioner-Appellant, ) D.C. No. CV-93

) -00133-RWA

v. )

) ORDER

STEVEN MacASKILL, Director )

Women's Correctional Center, )

)

Respondent-Appellee.

Before: BEEZER and HAWKINS, Circuit Judges, and

TEVRIZIAN, District Judge.'

Appellant's petition for rehearing filed with the Court

on October 4, 1995, is DENIED.

' The Honorable Dickran M. Tevrizian, United

States District Judge for the Central District of

California, sitting by designation.

B

Wm._Nels Swandal |

Park County Attorney

414 East Callender Street

Livingston, MT 59047

Phone: (406) 222-6120, Ext. 240

MONTANA SIXTH JUDICIAL DISTRICT COURT,

PARK COUNTY

THE STATE OF MONTANA, _)

Plaintiff,

v. Criminal #89-43

CLARA MAE HESS,

Defendant.

INFORMATION

WM. NELS SWANDAL, County Attorney for Park

County, Montana, deposes and says:

On or about August 20, 1989, the above named

defendant committed the offense of deliberate homicide, a

felony, in violation of Montana law, Section 45-5-102,

MCA, 1989, punishable by imprisonment in the state prison

not less than ten (10) years or more than one hundred

(100) years.

The facts constituting the offense are:

Defendant, on or about August 29, 1989, in

2

Park County, Montana, purposely or

knowingly caused the death of William H.

Hess injury by shooting him in the head with

a .22 caliber pistol.

A list of possible witnesses for the State now

known to the prosecution is as follows:

Charley Johnson, Sheriff 414 East Callender Street

| Livingston, MT 59047

— Deputy Jerry Harmon 414 East Callender Street

Livingston, MT 59047

Lee Keto, Undersheriff 414 East Callender Street

Livingston, MT 59047

Deputy Gary Tanascu Gardiner, MT 59030

Deputy Jay Fleming Gardiner, MT 59030

Deputy Dan Wertz 414 East Callender Street

Livingston, MT 59047

Deputy Ed Kinnick 414 East Callender Street

Livingston, MT 59047

Deputy Doug Wonders 414 East Callender Street

Livingston, MT 59047

Bob Childers 414 East Callender Street

Livingston, MT 59047

~

Steve Covington

Bruce Weeter

Bill Deckard

Sarah Leyde

Bob Youngberg

Ray Klimek

Bill Leyde

Dester Tank

Bob Taylor

Retha Myrstol

Tony Bailey

Ralph Myrstol

Joe Magalsky

Al Fries

Tom Bailey

414 East Callender Street

Livingston, MT 59047

414 East Callender Street

Livingston, MT 59047

414 East Callender Street

Livingston, MT 59047

Clyde Park, MT

Clyde Park,

Clyde Park,

Clyde Park,

Clyde Park,

Clyde Park,

Clyde Park,

7 anna a 8 8

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$

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59018

59018

59018

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59018

59018

$9018

59018

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Evelyn Myrstol

Jack Davis

Dr. Kenneth H. Mueller

William Deckard

Agents from the Montana

Criminal | em

Bureau

Michael J. Miller

Chief, MT ID Bureau

Clyde Park, MT 59018

State Crime Lab

Missoula, MT 59802

State Crime Lab

Missoula, MT 59802

Park County Coroner

Livingston, MT 59047

1233 North 30th Street

Billings, MT 59101

Everet Police Department

3002 Wetmore Avenue

Everet, WA

Phone 259-0405

Justice Building

215 \. Sanders

Helem, MT 59620

303 N. Roberts

Helen, MT 59620-1418

DATED ‘this 23rd day of Octobe, 1989

s/ Wm. Nels Swandal

Park County Attorney

No. 91-005

IN THE SUPREME COURT OF THE

STATE OF MONTANA

1992

STATE OF MONTANA,

Plaintiff and Respondent,

-Vs-

CLARA M. HESS,

Defendant and Appellant

APPEAL FROM: District Court of the Sixth Judicial

District, In and for the County of Park,

The Honorable Byron L. Robb, Judge

presiding.

COUNSEL OF RECORD:

For Appellant:

2

Chief Justice J. A. Turmage delivered the Opinion of the

Court.

Clara Hess (Clara) appeals her conviction for the

mitigated deliberate homicide of her husband, William "Bill"

Hess, following a jury trial in the Sixth Judicial District,

Park County. We affirm. We rephrase the issues

presented on appeal as follows:

1. Did the District Court err in requiring the

defendant to submit to a psychiatric and psychological

evaluation by the State's expert witness for use by the

State in rebuttal?

_ 2. Did the District Court err by giving inappropriate

jury instructions?

Clara married William “Bill" Hess (Bill) in 1947.

Years later, Bill initiated divorce proceedings; the couple

divorced in 1964. After their divorce, the couple continued

_ to live together. In 1972, the couple remarried. Clara

sexual, and verbal abuse. She testified that Bill threatened

her with a gun on three occasions. She testified that Bill

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Ohio and Disneyland. She further testified that she

managed the checkbook and household finances of the

couple, and had access to money from her mother’s estate.

Some witness testimony supported Clara's depiction

of Bill as abusive, controlling, and hot-tempered. Other

witness testimony depicted Bill as kind-hearted and gentle,

and depicted Clara as the dominant and oftentimes absent

person in the marriage.

Clara testified that in September 1988, she sought

medical attention for a leg injury resulting from Bill's

physical abuse. Medical records indicate that Clara told a

treating doctor that her leg injury was a result of a

“burning membrane” that started after riding in a car and

was aggravated after another car trip.

Both Bill and Clara enjoyed hunting. Clara testified

that she engaged in target-shooting. Both owned and were

accustomed to shooting various handguns and rifles. Clara

kept a Beretta .22 pistol in a downstairs washroom and a

38 pistol in her bedroom. While traveling, she carried a

loaded pistol in her purse. Bill kept several guns in his

bedroom, including a High Standard .22 pistol.

On the evening of August 19, 1989, Clara and Bill

were home alone. Clara testified that Bill said if she

“didn't move back into his bedroom and do everything he

wanted", he would tell Clara's then forty-four-year-old son

to Bill's threat by eprinkling sleeping pills in Bill's tapioca

pudding. After eating his tapioca pudding, Bill went

upstairs to his bedroom and retired.

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Clara testified that on the moming of August 20,

1989, she entered Bill's bedroom and Bill threatened to kill

her. She testified that she believes Bill moved toward the

dresser to retrieve the High Standard .22 pistol. She

testified that she recalls grabbing the pistol from the

dresser, but does not recall struggling with Bill, firing the

pistol, or dropping the pistol. She recalls leaving Bill's

bedroom and going to her bedroom for an undetermined

amount of time. A pathologist later testified that Bill died

from two gunshot wounds to the left temple of his head.

The pathologist could not determine whether Bill was

standing or lying down when he received the wounds nor

whether Bill was shot from close range. A firearm and

toolmark examiner testified that 1) two spent cartridge cases

taken from the scene were shot from Bill's High Standard

.22 pistol, and 2) of the two bullet fragments taken from

Bill's skull, one bullet fragment was from a .22 bullet and

the other was probably from a .22 bullet. The Park

County Sheriff testified that Bill's High Standard .22 pistol

was later found in Clara's bedroom under her pillow.

When Clara returned to Bill's bedroom some time

later, she recalls seeing Bill on the floor with “some dark

stuff coming out of his mouth." She placed a pillow under

his head and a blanket over him and did not realize he

was dead until sometime that afternoon.

That evening, Clara wrapped Bill's body in the

blanket that covered him and tied his body with a rope to

a rubber raft. She then dragged Bill's body downstairs and

outside to a deep hole meant for a root cellar. She

testified that she first placed straw in this hole, then Bill's

body, then the box spring and the mattress from Bill's

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bedroom. She later testified that she also placed into this

hole a blood-stained piece of carpet that she had removed

from Bill's bedroom. The Park County Sheriff testified that

this hole additionally contained a piece of carpet padding

from Bill's bedroom, a spent .22 casing, and another rubber

raft. Clara testified that she covered the contents of the

hole with dirt.

The next moming on August 21, 1989, Clara

telephoned Bill's sister, Sarah Leyde (Sarah) and told her

that Bill was ill and that the Leyde family should not come

over to their house that day to help side the garage as

earlier planned. Later that day, Sarah telephoned Clara to

check on Bill's health, and Clara told her that Bill was

still ill.

On August 22, 1989, Clara purchased and had

delivered ten yards of garden dirt from a local company.

She then asked a neighbor who had access to a backhoe if

he could use the backhoe to fill in the remainder of the

hole with the garden dirt. Additionally that day, Clara

went over to Sarah's house and told Sarah that Bill had

gone fishing, but she dic not know where. On August 23,

1989, the neighbor using his backhoe filled in the hole

meant for a root cellar with the garden dirt.

Thereafter, Clara left Montana and traveled to

Washington to visit family. On August 24, 1989, she

telephoned Sarah from Washington and told her that Bill

was fishing in Alaska. On August 29, 1989, Clara

telephoned Sarah from Washington and told her that Bill

was at a fishing camp in Williams Lake, British Columbia,

and she was going to drive there to pick him up. On

D

6

August 31, 1989, Clara telephoned Sarah and told her that

Bill had died from a heart attack in Williams Lake, British

Columbia, and his body had been cremated.

When Clara returned to her home in Montana, Sarah

helped Clara pack Bill's belongings. Sarah became

suspicious when Clara refused to allow anyone in Bill's

locked bedroom because Clara claimed that Bill had killed

a cat in his bedroom, leaving the floor stained. Sarah

became suspicious when she found Bill's glasses and fishing

tackle in his car. Acting on these suspicions, Sarah

telephoned authorities in Williams Lake, British Columbia,

to confirm Bill's death and was told that there were no

records of his death or cremation. Sarah then telephoned

local police, which resulted in an investigation and the

eventual excavation of Bill's body. Clara was later arrested

in Washington.

On October 23, 1989, Clara was charged by

information with deliberate homicide under § 45-5-102,

MCA. At her arraignment hearing on October 24, 1989,

she pled not guilty to this charge. On December 1!, 1989,

Clara gave notice of her intent to rely upon the affirmative

defense of "use of justifiable force or self-defense under the

battered woman syndrome." This notice stated that Dr.

Lenore Walker, a nationally known expert on battered

woman syndrome, would examine Clara and testify at trial.

The State did not challenge Clara's reliance on the

deferse of justifiable use of force under battered woman

syndrome, even though this defense has never been

recognized in Montana. On January 12, 1990, however, the

State gave notice of its intention to call Dr. Walters and

D

7

Dr. Stratford, both experts on battered woman syndrome, to

rebut the testimony of Dr. Walker. The State further

moved and the District Court ordered, a psychiatric and

psychological evaluation of Clara by Dr. Walters and Dr.

Stratford at State expense.

Clara twice refused to participate in this court-

ordered evaluation and requested a writ of supervisory

control from this Court. On April 11, 1990, the District

Court sanctioned Clara and ordered that if she refused to

participate in this evaluation, Dr. Lenore Walker would not

be allowed to testify at trial.

On May 10, 1990, this Court granted limited

supervisory control to Clara, and vacated the District

Court's April 11, 1990 order regarding Dr. Lenore Walker's

testimony. However, on May 16, 1990, this Court granted

rehearing and vacaied its May 10, 1990 order. In July

1990, Clara submitted to the court-ordered evaluation.

At trial, Dr. Walker testified that in her expert

opinion, Clara suffered from battered woman syndrome. In

rebuttal, Dr. Walters and Dr. Stratford testified that in their

expert opinions, Clara exhibited some symptoms of post-

traumatic stress disorder (battered woman syndrome

category).

On August 30, 1990, a jury convicted Clara of

mitigated deliberate komicide. On September 26, 1990, the

District Court sentenced Clara to thirty years imprisonment

for mitigated deliberate homicide and five years

imprisonment for the use of a weapon in commission of an

Offense, fined her $15,000, and designated her a

D

8

nondangerous offender for parole eligibility purposes. From

this conviction, Clara appeals.

1. Did the District Court err in requiring the

defendant to submit to a psychiatric and psychological

evaluation by the State’s expert witnesses for use by the

State in rebuttal?

Clara challenges, on both constitutional and statutory

grounds, the District Court's authority to compel an

independent psychiatric and psychological evaluation by

State-chosen experts for use during rebuttal.

A. Constitutional Grounds

Clara argues that the compelled evaluation violated

her Fifth Amendment right protecting her against self-

incrimination; she argues that she in no way waived this

right. Clara argues that her Miranda rights were violated

as she was never informed prior to the compelled

evaluation that she had the right to remain silent. Clara

argues that her Sixth Amendment right was violated as she

did not have counsel present during the compelled

evaluation. Clara also argues that Smith v. McCormick

(9th Cir. 1990), 914 F.2d 1153, is applicable to these facts

as it supports the proposition that a compelled evaluation

is prohibited constitutionally, as well as statutorily.

We agree with the State that Clara put her mental

state at issue when she relied upon the affirmative defense

of justifiable use of force and offered psychological

evidence, the expert witness testimony of Dr. Lenore

Walker, to support that defense. Accordingly, the State was

D

9

entitled to have Clara examined by expert witnesses of its

own choosing and to have these expert witnesses testify for

the limited purpose of rebutting Dr. Lenore Walker's

testimony. State v. Briand (N.H. 1988), 547 A.2d 235.

See _also, State v. Goodwin (1991), 249 Mont. 1, 813 P.2d

953. We therefore hold that Clara's Fifth Amendment right

against self-incrimination was not violated.

We further agree with the State that Clara was not

entitled to Miranda wamings prior to the compelled

evaluation because 1) Clara was represented by counsel, 2)

said counsel was fully informed of the time and place of

the evaluation, 3) Clara was not in custody at the time of

the evaluation, 4) as discussed, Clara placed her mental

state at issue, and 5) the compelled evaluation was limited

to use for rebuttal only. See McNeill v. Fulcomer (E.D.

Pa. 1990), 753 F.Supp. 1294.

Clara next argues that under the Sixth Amendment,

she was entitled to have her counsel present during the

compelled evaluation. The record indicates that Dr.

Walters, a psychologist, examined Clara on July 11 and 12,

1990. Clara's counsel was present in Dr. Walters’ office

at both sessions, although he was not in the examination

room. The record further indicates that Dr. Stratford, a

psychiatrist, examined Clara during two separate sessions in

July 1990. Clara's counsel, although not present in the

examination room, was present in Dr. Stratford's office

during the first session and was apparently in contact with

her by telephone during the second evaluation.

In the District Court's February 5, 1990 order

relating to the State's motion for a compelled psychiatric

10

and psychological evaluation by State experts, the Court

ordered:

B. That in [the] event defendant chooses to

submit to such evaluation . . . her attorney

may attend and be present .... The state

shall thereafter also promptly furnish defense

counsel with a true copy of any report or

reports prepared by Drs. Stratford and

Walters.

C. That such evaluation shall be made

subject to defendant's constitutional and

statutory rights not to make statements or

produce documents that may incriminate her,

that the state's counsel and witnesses may

use such examination only for determining the

mental condition of defendant and _ for

rebuttal, and that all experts and counsel shall

keep their records and reports confidential

except as necessary for use in trial of this

case.

From the record in this case, the only information

elicited by Dr. Stratford and Dr. Walters in their

examinations related to the mental condition of Clara and

their testimony was used only to rebut the testimony of Dr.

Lenore Walker, Clara's expert witness. Accordingly, the

testimony of Dr. Stratford and Dr. Walters stayed well

within the parameters of the District Couri's order.

Additionally, following a careful review of the entire

record, we hold that this testimony did not prejudice Clara

and therefore is not a ground for reversal. See § 46-20-

701, MCA. Dr. Stratford testified during cross-examination

that he was unable to reach a conclusion on whether Clara

suffered from post-traumatic stress disorder. Dr. Walters

testified during cross-examination: "I am confident saying

that [Clara] reports a number of symptoms that are

consistent with post-traumatic stress disorder." Although

Dr. Walters did not conclude that Clara suffered from post-

traumatic stress disorder, he testified during cross-

examination that based on his limited test results of Clara,

"[i]t appears likely" that she suffers from post-traumatic

stress disorder. Accordingly, the testimony of Dr. Walters

and Dr. Stratford did not prejudice Clara regarding her

defense of battered woman syndrome.

Clara also argues that Smith v. McCormick (9th Cir.

1990), 914 F.2d 1153, is applicable to these facts as it

supports the proposition that a compelled evaluation is

prohibited constitutionally, as well as statutorily. We

disagree that Smith stands for this proposition; if anything,

the language of Smith supports the State's position that, as

a matter of trial fairness, the State must be provided an

opportunity to rebut the evidence offered by the defendant's

expert witness and that a compelled evaluation is proper:

Consistent with the adversarial nature of the

fact-finding process and the quasi-scientific

nature of psychiatric opinion, the Ake court

explicitly rejected the notion that psychiatrists

can be expected to reach a unanimous

diagnosis of the current mental condition of

a defendant and unanimous prognosis as to

future expected conduct or that there is such

D

12

a thing as "neutral" psychiatric testimony:

"Psychiatry is not . . . an exact science, and

psychiatrists disagree widely and frequently on

what constitutes mental illness, on the appro-

priate diagnosis to be attached to given

behavior and symptoms, on cure and treat-

ment, and on likelihood of future danger-

ousness. Perhaps because there often is no

single, accurate psychiatric conclusion on legal

insanity in a given case, juries remain the

primary factfinders on this issue, and they

must resolve differences in opinion within the

psychiatric profession on the basis of the

evidence offered by each party."

Smith, 914 F.2d at 1157 (citing Ake v. Oklahoma (1985),

470 U.S. 68, 81, 105 S.Ct. 1087, 1095, 84 L.Ed.2d 53, 64-

65). We therefore hold that Smith decision presents no

basis for reversing this case.

B. Statutory Grounds

Clara argues that Montana's statutory scheme does

not provide the District Court the authority to compel a

psychiatric and psychological evaluation of a defendant who

asserts the affirmative defense of justifiable use of force

based on battered woman syndrome under §§ 46-15-323, -

324, -331, and -332, MCA (1989). Clara further argues

that statutes governing the procedure for mental evaluation

when mental state is an issue, §§ 46-14-101 to -313, MCA

(1989), are inapplicable here because the defense of

justifiable use of force based on battered woman syndrome

D

13

does not place a defendant's mental state at issue and these

statutes do not expressly provide for battered woman

syndrome.

We hold that §§ 46-15-323, -324, -331, and -332,

MCA (1989), are inapplicable because, as previously

discussed, Clara put her mental state at issue when she

relied upon the defense of justifiable use of force based on

battered woman syndrome and offered the testimony of Dr.

Lenore Walker in support of that defense. The applicable

statute, § 46-14-212, MCA (1989), authorizes the State to

request a mental evaluation once the defendant's mental

state is at issue. Furthermore, the District Court had

authority to apply §§ 46-14-202 to -313, MCA (1989),

without specific statutory reference to the defense of

justifiable use of force based on battered woman syndrome.

See State v. Briand (N.H. 1988), 547 A.2d 235, 237. We

therefore hold that § 46-14-212, MCA (1989), provided the

District Court the authority to compel Clara to undergo a

psychiatric and psychological evaluation by expert witnesses

chosen by the State for the limited purpose of rebuttal.

We further hold that the District Court had the right to

sanction Clara when she twice refused to cooperate with

undergoing the court-ordered evaluation under § 46-15-329,

MCA (1989).

2. Did the District Court err by giving inappro-

priate jury instructions?

Clara argues that the District Court erred when it

refused her instructions on 1) presumption of innocence and

2) deliberation. Clara further argues that the District Court

should have given instructions that the testimony of law

D

14

officers should not be given special credibility and that the

State bears the responsibility to disprove the theory of self-

defense.

We hold that the District Court properly refused

Clara's instructions on presumption of innocence and

deliberation because they are repetitive, conflict with the

instructions already approved by the District Court, and are

redundant. Furthermore, the District Court was not bound

to give jury instructions concerning the credibility of law

officer testimony because these instructions were never

offered at trial, and this Court has never held these

instructions as necessary to avoid reversible error. We

therefore hold that the District Court committed no error in

refusing these jury instructions.

In conclusion, we affirm Clara Hess's conviction of

the mitigated deliberate homicide of her husband, William

"Bill" Hess.

s/ J. A. Turnage, Chief Justice

We concur:

s/ John Conway Harrison

s/ Karla M. Gray

s/ William E. Hunt, Jr.

s/ Terry Triewiler

s/ R. C. McDonough

s/ Fred J. Weber

l

Petition under 28 USC § 2254 for Wnit

of Habeas Corpus by a Person in State Custody

UNITED STATES DISTRICT COURT, District of Montana

Name: Clara Hess Prisoner No. 32268

Place of Confinement: Women's Pre-Release Center, 62

West Broadway, Butte, Montana

Name of Petitioner Name of Respondent

CLARA HESS v. STEVEN MacASKILL

The Attorney General of the State of Montana - Joseph P.

Mazurek, Justice Building, 215 North Sanders, Helena,

Montana 59620

PETITION

1. Name and location of court which entered the judgment

of conviction under attack: Sixth Judicial District Court,

Livingston, Montana.

2. Date of judgment of conviction: October 30, 1990

3. Length of sentence: See attached

4. Nature of offense involved (all counts) The Defendant,

Clara Hess, was charged by an Information filed in the

District Court on October 23, 1989, with the crime of

2

Deliberate Homicide, a Felony.

5. What was your plea? Not guilty.

6. If you pleaded not guilty, what kind of trial did you

have? Jury

7. Did you testify at the trial? Yes.

8. Did you appeal from the judgment of conviction? Yes.

9. If you did appeal, answer the following:

(a) Name of court: Supreme Court of the State of

Montana

(b) Result: Affirmed.

(c) Date of result and citation, if known: 3/10/92 - State

v. Hess, 828 P.2d 382 (Mont. 1992).

(d) Grounds raised: See attached

(e) If you sought further review of the decision on appeal

by a higher state court, please answer the following:

(1) Name of court: Sentence Review

(2) Result: Reduction in sentence was denied.

(3) Date of result and citation, if known:

(4) Grounds raised: This proceeding was simply to secure

E

3

a reduction or change in the sentence.

(f) If you filed a petition for certiorari in the United States

Supreme Court, please answer the following with respect to

each direct appeal: N/A

10. Other than a direct appeal from the judgment of

conviction and sentence, have you previously filed any

petitions, applications, or motions with respect to this

judgment in any court, state of federal? No

11. If your answer to 10 was "yes", give the following

information: N/A

12. State concisely every ground on which you claim that

you are being held unlawfully. Summarize briefly the facts

supporting each ground. If necessary, you may attach

pages stating additional grounds and facts supporting the

same.

CAUTION: In order to proceed in the federal court,

' you must ordinarily first exhaust your available state court

remedies as to each ground on which you request action by

the federal court. If you fail to set forth all grounds in

this petition, you may be barred from presenting additional

grounds at a later date.

A. Ground one: The conviction was obtained by a

violation of the privilege against self-incrimination.

Supporting FACTS (state briefly without citing cases or

law) In this case Petitioner was required to submit to a

psychological and psychiatric examination by order of the

Court and without counsel. Such experts were permitted to

4

be in the courtroom as an exception to the exclusion of

witnesses and testified on behalf of the State.

B. Ground two: The Petitioner was not given her

Miranda rights prior to any examination or was she given

the opportunity to exercise her right to not give a statement

or submit to such examination.

Supporting FACTS (state briefly without citing cases or

law) In this case it appears without contradiction that prior

to any examination by state experts Petitioner was not

apprised of her constitutional rights.

C. Ground three: Petitioner was not permitted the

assistance of counsel under the Sixth Amendment to the

Constitution with respect to the examination by state experts

who became witnesses for the prosecution.

Supporting FACTS (state briefly without citing cases or

law) The facts in this case as shown by the transcript did

not permit counsel to be present during the examination but

the Order provided that the attorney could be outside the

room and could confer with the client/petitioner.

13. If any of the grounds listed in 12A, B, C, and D

were not previously presented in any other court, state or

federal, state briefly what grounds were not so presented,

and give your reasons for not presenting them: N/A. All

grounds were presented to the Supreme Court of the State

of Montana and all State remedies have been exhausted.

14. Do you have any petition or appeal now pending in

any court, either state or federal, as to the judgment under

attack? No.

15. Give the name and address, if known, of each attorney

who represented you in the following stages of the

judgment attacked herein:

(a) At preliminary hearing: Charles F. Moses

(b) At arraignment and plea: Charles F. Moses

(c) At trial: Charles F. Moses

(d) At sentencing: Charles F. Moses

(e) On appeal: Charles F. Moses

(f) In any post-conviction proceeding? N/A

(g) On appeal from any adverse ruling in a post-conviction

proceeding: N/A

16. Were you sentenced on more than one count of an

indictment, or on more than one indictment, in the same

court and at the same time? No.

17. Do you have any future sentence to serve after you

complete the sentence imposed by the judgment under

attack? No.

Wherefore, petitioner prays that the Court grant petitioner

relief to which he may be entitled in this proceeding.

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Attachment to Petition for

Writ of Habeas Corpus for

Clara Hess - #32268

3. Length of Sentence:

Thirty years confinement plus enhancement of term

of five years for use of a weapon to be served

consecutively. Fine of $15,000 and a surcharge of $20.00.

Designated as a non-dangerous offender.

9(b). Grounds Raised:

(1) Violation of the Fifth Amendment raised against

self-incrimination.

(2) Failure to advise the Defendant of her rights

under Miranda v. Arizona, before examination.

(3) Failure to have the assistance of counsel under

the Sixth Amendment.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

CLARA M. HESS,

Petitioner, CV 93-133-BLG-RWA

MEMORANDUM

AND ORDER

V.

STEVEN MacASKILL,

Respondent.

Pending before the Court are cross-motions for

summary judgment in this habeas corpus action under 28

U.S.C. § 2254. For the reasons stated below, Respondent's

motion is granted and Petitioner's motion is denied.

I.

BACKGROUND

On October 24, 1989, Petitioner Clara Mae Hess

pled “not guilty" to a charge of deliberate homicide in the

Montana State District Court, arising out of the shooting

death of her husband. At an omnibus hearing on

December 11, 1989, Petitioner gave notice of her intent to

assert the defense of justifiable use of force, based upon

what is known as the “battered woman's syndrome”.

Petitioner further notified the court that a well-known expert

on that subject, Ms. Lenore Walker, would testify on her

behalf at trial.

Thereafter, Respondent sought a court order

2

compelling Petitioner io submit to a psychiatric/psychological

evaluation by the State's experts, Dr. Al Walters and Dr.

William Stratford, at State expense. By Order dated

February 5, 1990, the Court granted Respondent's motion,

but limited the scope of the examinations by providing that

"such evaluation shall be made subject to defendant's

constitutional and statutory rights not to make statements or

produce documents that may incriminate her, that the state's

counsel and witnesses may use such examination only for

determining the mental condition of defendant and for

rebuttal, and that all experts and counsel shall keep their

records and reports confidential except as necessary for use

in trial of this case." The Court also stated that

"[Petitioner's] attorney may attend and be present at his

own expense.”

Petitioner appeared at the date and times set for the

court-ordered examinations, but refused to participate in the

examinations. Respondent therefore moved to exclude trial

testimony from Petitioner's expert on the subject of battered

‘woman's syndrome. On March 27, 1990, the Court granted

the motion and excluded Ms. Walker from testifying as an

expert at trial, unless Petitioner submitted to the previously

ordered examinations. The Court further clarified

Petitioner's counsel's role, stating that Petitioner's counsel

"may be present in the waiting room of such examiner and

may counsel defendant at recesses and meals." On April

9, 1990, Petitioner notified the court that she did not intend

to submit to the examinations. On April 11, 1990, the

Court entered an order excluding Petitioner's expert witness,

as a sanction for her noncompliance.

Petitioner ultimately submitted (under protest) to the

3

examinations in July, 1990. All three experts (Ms. Walker,

Dr. Walters and Dr. Stratford) were permitted to testify at

trial. The jury returned a verdict finding Petitioner guilty

of mitigated deliberate homicide. Petitioner was sentenced

to prison term of thirty years, plus an additional five years

under Montana's weapon enhancement statute, Mont: Code

Ann. § 46-18-22].

Petitioner appealed the district court's decision

compelling her to submit to examinations by the State's

experts, contending that it violated her rights under the

Fifth and Sixth Amendments to the United States

Constitution. The Montana Supreme Court found that

Petitioner “put her mental state at issue when she relied

upon the affirmative defense of justifiable use of force and

offered psychological evidence . . . to support that defense.

Accordingly, the State was entitled to have [Petitioner]

examined by expert witnesses of its own choosing and to

have these expert witnesses testify for the limited purpose

of rebutting [Petitioner's expert's] testimony." State _v.

Hess, 828 P.2d 382, 386 (Mont. 1992) (citation omitted).

As such, "[Petitioner’s] Fifth Amendment right against self-

incrimination was not violated." Id.

The Montana Supreme Court further found that

Petitioner was not entitled to Miranda wamings prior to the

examinations, and that her Sixth Amendment right to

counsel as not violated by the district court's orders. Id.

at 386.

After exhausting her remedies on appeal with the

Montana Supreme Court, Petitioner filed the present petition

for habeas corpus relief under 28 U.S.C. § 2254 on August

4

10, 1993. Both parties have submitted cross-motions for

summary judgment. After consideration of the briefs and

supporting materials submitted by the parties, the Court

rules as follows:

Il.

DISCUSSION

The issues raised by this petition are (1) whether

Petitioner's rights under the Fifth Amendment to the United

States Constitution were violated when the Montana State

District Court ordered her to submit to _psychiatric/

psychological evaluations by experts of Respondent's

choosing, after Petitioner asserted the defense of justifiable

use of force based on the battered woman's syndrome; (2)

whether Petitioner had a Fifth Amendment right to be given

her Miranda rights prior to the court-ordered examinations;

and (3) whether Petitioner had a Sixth Amendment right to

have her counsel present during the court-ordered

examinations.

At the outset, the Court notes that although

Petitioner has cited to numerous Montana statutory and

constitutional provisions in support of her petition, § 2254

is intended to remedy only violations of "the Constitution

or laws or treaties of the United States." 28 U.S.C. §

2254(a). The Court therefore limits its analysis to the

federal constitutional questions raised by the petition.

A. Fifth Amendment Violations

Petitioner first contends that the state violated her

Fifth Amendment right against self-incrimination by

compelling her to submit to an examination by the State's

experts. The majority of federal courts recognize that “a

an eee ett eee

5

defendant may be compelled to submit to a psychiatric

exam when he or she raises the defense of insanity," so

that the State is afforded an opportunity to respond to the

opinions of the defendant's expert witnesses. State v.

Schackart, 858 P.2d 639, 645 (Ariz. 1993) (citing numerous

cases). "[T]he underlying concern is that in order for the

State to be able to bear effectively its burden of proving

guilt, or of meeting an affirmative defense, it must have

the means to adequately assess and, if necessary, rebut a

defendant's expert psychiatric testimony." Hartless v. State,

611 A.2d 581, 584 (Md.App. 1992).

Although the battered woman's syndrome was

presented in this case in the context of a defense of

justifiable use of force, and not as a defense of "mental

disease or defect" under Montana law, it similarly involves

"the matter of insight into the operations of [Petitioner's]

mind, which [Petitioner sought] to illuminate and explain

through the testimony of experts who have had the

opportunity to examine her." State v. Myers, 570 A.2d

1260, 1266 (N.J.Super 1990). Thus, the reasoning which

permits court-ordered psychiatric examinations at the request

of the State in insanity cases is equally persuasive here,

and “the management of the constitutional implications of

defendant's statements to the examining experts should be

essentially the same." Id. at 1266.

Once Petitioner gave notice of her intent to rely

upon the defense of self defense due to the battered

woman's syndrome, and to support that defense by expert

psychological evidence, the State was entitled to conduct its

own evaluation of Petitioner for rebuttal purposes. United

States_v. Vega-Penarete, 137 R.F.D. 233 (E.D.N.D. 1991);

6

see also Myers, 570 A.2d 1260; Schackart, 858 P.2d 639,

State v. Briand, 547 A.2d 235 (N.H. 1988); State _v. Nizam,

771 P.2d 899 (Haw.App. 1989); State v. Hutchinson, 766

P.2d 447 (Wash. 1989), The Court had the inherent power

to enter an order compelling an examination, and also to

exclude Petitioner's expert if she refused to comply with

that Order. Nizam, 771 P.2d at 901.

Courts have inherent authority to order a

defendant to submit to a __ psychiatric

examination by the state's expert where the

defendant raises a defense requiring

psychiatric testimony and introduces such

testimony in support of the defense. The

courts’ inherent authority is grounded on the

courts’ responsibilities both to promote the

ascertainment of truth and to insure the

orderliness of judicial proceedings.

Id.; see also United States v. Nobles, 422 U.S. 225 (1975);

_ United States v. Malcolm, 475 F.2d 420 (9th Cir. 1973);

United States v. Richter, 488 F.2d 170, 173 (9th Cir. 1973)

(District courts have "wide latitude .. . to carry out

successfully [their] mandate to effectuate, as far as possible,

the speedy and orderly administration of justice."). "To

hold otherwise would deprive the State of the only

adequate means to contest the conclusions of a defense

psychiatric expert." Schackart, 858 P.2d at 645 (citing

United States v. Byers, 740 F.2d 1104, 1111-13 (D.C.Cir.

1984)).

The Petitioner relies on several cases, primarily

Estelle _v. Smith, 451 U.S. 454 (1981), in support of her

7

contention that a court-ordered psychological evaluation

violated her Fifth Amendment right against self-

incrimination. However, that reliance is misplaced. In

Estelle, the United States Supreme Court found that the

defendant's Fifth Amendment rights were violated when the

lower court, sua sponte, ordered a psychiatric evaluation to

determine whether defendant was competent to stand tnal,

and later permitted the examining psychiatrist to testify at

sentencing. The Supreme Court specifically noted that

"(the] psychiatric evaluation was ordered even though

defense counsel had not put into issue Smith's competency

to stand trial or his sanity at the time of the offense." Id.

at 456 n. 1. Those facts differ from the present case, in

which Petitioner claimed that she suffered from battered

woman's syndrome and offered expert testimony in support

of that defense. See id, at 465 (distinguishing Estelle from

those cases in which a defendant claims a diminished

mental condition and offers supporting psychiatric

testimony).

Moreover, in Estelle, the United States Supreme

Court stated that "[w]hen a defendant asserts the insanity

defense and introduces supporting psychiatric testimony, his

silence may deprive the State of the only effective means

it has of controverting his proof on an issue that he has

interjected into the case." Id. at 465. Petitioner's silence

is equally unfair to the State in a case such as this, where

the defendant intends to offer psychiatric/psychological

expert testimony in support of a defense based on battered

woman's syndrome. Estelle therefore supports this Court's

determination that Petitioner may not raise such a defense

and then assert her Fifth Amendment rights to preclude the

State from conducting its own inquiry into the validity of

her defense. "“[T]Jhat is somewhat analogous to the rule

that a defendant who elects to testify at trial may not

invoke the self-incrimination privilege to avoid cross-

examination.” Schackart, 859 P.2d at 645 (citations

omitted).

Likewise, in Buchanan v. Kentucky, 483 U.S. 402

(1987), the Supreme Court recognized that if a defendant

asserts a mental-status defense supported by expert

psychiatric/psychological testimony, he waives any Fifth

Amendment objection to the use of evidence derived from

the examination by the prosecution to rebut his defense.

Id, at 423; see also Powell v. Texas, 492 U.S. 680, 684

(1989).

For these reasons, the Court concludes that when

Petitioner raised the defense of battered woman's syndrome

and supported that defense with expert testimony, she

waived her Fifth Amendment right to object to a

psychiatric/psychological examination by Respondent's

experts. The district court therefore did not violate

Petitioner's Fifth Amendment right against self-incrimination

by requiring her to either submit to such an examination,

or face exclusion of her own expert testimony at trial.

Respondent is entitled to summary judgment in its favor on

this claim.’

' The district court stated in its order that “such

evaluation shall be made subject to defendant's

constitutional and statutory rights not to make statements or

produce documents that may incriminate her... ." Thus,

Petitioner was actually provided greater protection than2 she

was entitled to, since she waived her Fifth Amendment

F

For essentially the same _ reasons, Petitioner's

constitutional rights were not violated by the failure to

provide her with Miranda wamings prior to the

examinations. See, ¢.g., Hendricks v. Vasquez, 974 F.2d

1099, 1108 (9th Cir. 1992) (citing Powell v. Texas, 492

U.S. 680, 684 (1989)); McNeill v. Fulcomer, 753 F.Supp.

1294, 1299 (E.D.Pa.1990). Respondent is entitled to

summary judgment on this claim, as well.

B. Sixth Amendment Violations

Petitioner next contends that her Sixth Amendment

right to counsel was violated by the Court's order requiring

her to submit to a _psychiatric/psychological evaluation,

without representation by counsel during the examination.

It is established that a defendant is entitled to the

assistance of counsel before submitting to a court-ordered

psychiatric evaluation. Estelle, 451 U.S. at 469-71; United

States _v. Garcia, 739 F.2d 440, 442 (9th Cir. 1982).

However, the majority of courts have found that a

defendant has no constitutional right to have counsel

physically present during the examination. See, Schackart,

858 P.2d at 646 (and cases cited therein); see also United

States v. Bondurant, 689 F.2d 1246, 1249 (Sth Cir. 1982).

By providing Petitioner with advance notice of the

examinations and permitting her counsel to be available to

her in the waiting room or by telephone, the Court

adequately protected Petitioner's Sixth Amendment right to

counsel.

Based on the foregoing,

rights by asserting the battered woman's syndrome as a

defense.

10

IT IS ORDERED that Respondent's motion for

summary judgment is granted, and Petitioner's cross-motion

for summary judgment is denied.

The Clerk is directed to forthwith notify counsel of

record of the making of this Order.

Done and dated this 4th day of March, 1994.

s/ Richard W. Anderson

United States Magistrate Judge

l

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

CLARA M. HESS,

Petitioner, CV 93-133-BLG-RWA

MEMORANDUM

AND ORDER

V.

STEVEN MacASKILL,

Respondent.

Pending before the Court is Petitioner's Request for

New Trial, pursuant to Rule 59(a), Red.R.Civ.P., or to alter

or amend the Judgment pursuant to Rule 52, Fed.R.Civ.P..

For the reasons stated below, Petitioner's motion is denied.’

At the outset, the Court notes that this motion is

more properly viewed as a motion for reconsideration under

Rules 59(e) and/or 60(b), Fed.R.Civ.P., since the Judgment

at issue was the result of summary judgment proceedings

' The parties have previously consented to the

United States Magistrate Judge conducting ll

proceedings in this matter, including the entry of a

final Judgment. See Order of October 4, 1993.

Defendant's opposition to the Plaintiffs motion is

therefore not well taken, since it presupposes a lack of

such consent.

G

2

and not a trial on the merits.” Regardless of the stated

grounds, Petitioner essentially seeks reconsideration of the

Court's order of March 4, 1994, granting summary

judgment in favor of Respondent in this matter. "A litigant

may move the court to reconsider a grant of summary

judgment pursuant to Rule 59(e) or Rule 60(b). However,

to avoid being frivolous, such a motion must provide a

valid ground for reconsideration." All Hawaii Tours _v.

Polynesian Cultural Center, 116 F.R.D. 645 (D.Haw. 1987),

affd in part, rev'd in part on other grounds, 855 F.2d 860.

"In order to justify reconsideration of an order, a

party must show that there has been some intervening

development in the law, some new evidence not previously

available, or that the prior order is in clear error or would

operate to create a manifest injustice." Leong v. Hilton

Hotels Corp., 689 F.Supp. 1572, 1573 (D.Haw. 1988);

accord Boone v. United States, 743 F.Supp. 1367 (D.Haw.

1990; Kern-Tulare Water District v. City of Bakersfield, 634

F.Supp. 656, 665 (E.D.Cal. 1986). A motion for

reconsideration which presents no new arguments should be

denied. Backlund v. Bamhart, 778 F.2d 1386 (9th Cir.

1985).

The present motion is apparently based upon the

third ground. However, Petitioner has presented no

? Rule 52(b) addresses amendment of factual

findings made by a judge sitting without a jury or with

an advisory jury; Rule 59(a) refers to a motion for a

new trial, following a trial of the issues. Neither

provision applies here.

G

3

arguments which were not previously considered by the

Court. The court has reviewed its prior order and finds

that it was properly entered. Accordingly,

IT IS ORDERED that Petitioner's post-Judgment

motion for new trial or to alter or amend the Judgment is

DENIED.

The Clerk is directed to forthwith notify counsel of

record of the making of this order.

Done and dated this 14th day of Apmil, 1994.

s/ Richard W. Anderson

United States Magistrate Judge

Charles F. Moses

MOSES LAW FIRM

P. O. Box 2533

Billings, MT 59103-2533

Telephone: (406) 248-7702

Attomey for Petitioner

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

CLARA M. HESS,

CV 93-133-BLG-RWA

Petitioner,

NOTICE OF

APPEAL

V.

STEVEN MacASKILL,

i i

Respondent.

Notice is hereby given that Clara M. Hess, petitioner

above named, hereby appeals to the United States Court of

Appeals for the Ninth Circuit from the Judgment in a Civil

Case with supporting Memorandum and Order entered in

this action on March 4, 1994, and from the Memorandum

and Order denying petitioner's motion for new trial or for

reconsideration entered in this action on April 14, 1994.

DATED this 2nd day of May, 1994.

2

MOSES LAW FIRM

P. O. Box 2533

Billings, MT 59103-2533

By: s/ Charles F. Moses

Attomey for Petitioner

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the

foregoing was served by United States mail upon all

counsel of record on the 2nd day of May, 1994.

s/ Charles F. Moses