580 P.2d 106 (Mont. 1978), 14064, State v. Sandstrom

Docket Nº14064.
Citation580 P.2d 106, 176 Mont. 492
Party NameSTATE of Montana, Plaintiff and Respondent, v. David SANDSTROM, Defendant and Appellant.
Case DateJune 08, 1978
CourtUnited States State Supreme Court of Montana

Page 106

580 P.2d 106 (Mont. 1978)

176 Mont. 492

STATE of Montana, Plaintiff and Respondent,

v.

David SANDSTROM, Defendant and Appellant.

No. 14064.

Supreme Court of Montana.

June 8, 1978

Rehearing Denied June 29, 1978.

Submitted May 3, 1978.

Page 107

[176 Mont. 493] Byron W. Boggs (argued), Anaconda, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, John N. Radonich, County Atty. (argued), Anaconda, for plaintiff and respondent.

HARRISON, Justice.

On November 1, 1976, Mrs. Annie Jessen, 89 years of age, was found dead in her home in Anaconda, Montana, the apparent victim of a brutal assault in which she received blows to her head from a shovel, and five stab wounds to her back from a kitchen knife. Mrs. Jessen had, in addition, been sexually assaulted and received a compound fracture to her leg, apparently after the slaying.

On November 22, 1976, defendant, 18 years of age, was arrested for an unrelated crime. Shortly thereafter, and while in custody of the Deer Lodge County sheriff, defendant confessed to the slaying of Mrs. Jessen. The confession was subsequently corroborated by certain physical evidence.

Based upon the confession and supporting evidence, defendant was charged, by an Information filed December 2, 1976, with the crime of deliberate homicide, in violation of section 94-5-102, R.C.M.1947.

At the arraignment on the charge, defendant entered a plea of "not guilty" and filed a notice of intent to rely on mental disease or defect excluding criminal responsibility, as a defense.

Defense counsel subsequently moved for a change of venue, based upon allegedly prejudical pretrial publicity. The motion was heard on July 6, 1977 in the District Court, Deer Lodge County. Defendant presented the testimony of four witnesses. Three of the four witnesses testified that, despite their perception that many Anaconda area residents had formed some opinion concerning the [176 Mont. 494] case, the defendant could receive a fair trial in Deer Lodge County. The fourth witness, Oscar Sandstrom, the father of defendant, testified primarily concerning abusive phone calls he had received following his son's arrest. The motion was denied with leave to renew at the time of jury selection.

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 examined in voir dire individually and in segregation, which motion was also denied. Following voir dire, defendant again renewed his motion for change of venue. The motion was again denied.

Page 108

In his opening statement, defense counsel informed the jury that defendant no longer intended to rely on the defense of mental disease or defect. The decision to so inform the jury appears to have been based on the reports of two psychiatrists who had examined defendant and determined he was able to appreciate the consequences of his actions, despite his low intelligence level and aggressive/impulsive personality.

The case-in-chief for the state consisted of defendant's confession, together with the corroborating physical and circumstantial evidence. Defendant called as witnesses the two psychiatrists who had examined defendant prior to trial. The witnesses testified that, while defendant may not have had the specific intent to kill at the time of the offense, it was their opinion that he had the intent to "silence" Mrs. Jessen, and was conscious of his activity in bringing about the result.

Following the reception of evidence and upon their deliberations, the jury returned a verdict convicting defendant of the crime as charged. Defendant was subsequently sentenced to 100 years imprisonment in the Montana State Prison.

Defendant appeals the judgment of conviction, entered upon the verdict of the jury.

Defendant raises two issue for review: (1) Did the District Court abuse its discretion in denying defendant's motions for change of [176 Mont. 495] 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 maintained the pretrial publicity, given the nature of the crime in this case, rendered selection of an impartial jury impossible.

The applicable statute in this regard, section 95-1710(a), R.C.M.1947, states:

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

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10 practice notes
  • 614 P.2d 470 (Mont. 1980), 14542, State v. Bashor
    • United States
    • Montana United States State Supreme Court of Montana
    • July 1, 1980
    ...impossible for an accused to secure a jury free from exception." 60 Mont. at 569, 199 P. at 429. In State v. Sandstrom (1978), Mont., 580 P.2d 106, 35 St.Rep. 744, rev'd on other grounds, Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, this Court said that &quo......
  • 640 P.2d 366 (Mont. 1981), 80-374, State v. Link
    • United States
    • Montana United States State Supreme Court of Montana
    • June 23, 1981
    ...(1965), 145 Mont. 501, 508, 401 P.2d 770, 774. See also State v. Corliss (1967), 150 Mont. 40, 430 P.2d 632; State v. Sandstrom (1978), 176 Mont. 492, 580 P.2d 106, 35 St.Rep. 744. What is required by Montana case law, then, is more than an allegation of publicity; the court must determine ......
  • 608 P.2d 34 (Alaska 1980), 3663, Calantas v. State
    • United States
    • Alaska Supreme Court of Alaska (US)
    • March 21, 1980
    ...was then given an opportunity to reply to appellant's argument that Sandstrom requires reversal of his conviction. [2] State v. Sandstrom, 580 P.2d 106, 109 (Mont.1978)....
  • 442 U.S. 510 (1979), 78-5384, Sandstrom v. Montana
    • United States
    • Federal Cases United States Supreme Court
    • June 18, 1979
    ...error are issues that were not considered by the Montana Supreme Court, this Court will not reach them as an initial matter. Pp. 526-527. 176 Mont. 492, 580 P.2d 106, reversed and BRENNAN, J., delivered the opinion for a unanimous Court. REHNQUIST, J., filed a concurring opinion, in which B......
  • Request a trial to view additional results
10 cases
  • 614 P.2d 470 (Mont. 1980), 14542, State v. Bashor
    • United States
    • Montana United States State Supreme Court of Montana
    • July 1, 1980
    ...impossible for an accused to secure a jury free from exception." 60 Mont. at 569, 199 P. at 429. In State v. Sandstrom (1978), Mont., 580 P.2d 106, 35 St.Rep. 744, rev'd on other grounds, Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, this Court said that &quo......
  • 640 P.2d 366 (Mont. 1981), 80-374, State v. Link
    • United States
    • Montana United States State Supreme Court of Montana
    • June 23, 1981
    ...(1965), 145 Mont. 501, 508, 401 P.2d 770, 774. See also State v. Corliss (1967), 150 Mont. 40, 430 P.2d 632; State v. Sandstrom (1978), 176 Mont. 492, 580 P.2d 106, 35 St.Rep. 744. What is required by Montana case law, then, is more than an allegation of publicity; the court must determine ......
  • 608 P.2d 34 (Alaska 1980), 3663, Calantas v. State
    • United States
    • Supreme Court of Alaska (US)
    • March 21, 1980
    ...was then given an opportunity to reply to appellant's argument that Sandstrom requires reversal of his conviction. [2] State v. Sandstrom, 580 P.2d 106, 109...
  • 442 U.S. 510 (1979), 78-5384, Sandstrom v. Montana
    • United States
    • Federal Cases United States Supreme Court
    • June 18, 1979
    ...error are issues that were not considered by the Montana Supreme Court, this Court will not reach them as an initial matter. Pp. 526-527. 176 Mont. 492, 580 P.2d 106, reversed and BRENNAN, J., delivered the opinion for a unanimous Court. REHNQUIST, J., filed a concurring opinion, in which B......
  • Request a trial to view additional results

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