State ex rel. Sikora v. District Court of Thirteenth Judicial Dist. In and For Yellowstone and Stillwater Counties, 11746

• Decision Date: 24 November 1969
• Docket Number: No. 11746,11746
• Citation: 462 P.2d 897,154 Mont. 241
• Parties: The STATE of Montana, ex rel. Marie SIKORA, Clarence P. Carlat, and John Michael Radford, Relators, v. The DISTRICT COURT OF the THIRTEENTH JUDICIAL DISTRICT of the State of Montana, IN AND FOR the COUNTIES OF YELLOWSTONE AND STILLWATER, et al., Respondents.
• Court: Montana Supreme Court

Page 897

462 P.2d 897

154 Mont. 241

The STATE of Montana, ex rel. Marie SIKORA, Clarence P Carlat, and John Michael Radford, Relators, v. The DISTRICT COURT OF the THIRTEENTH JUDICIAL DISTRICT of the State of Montana, IN AND FOR the COUNTIES OF YELLOWSTONE AND STILLWATER, et al., Respondents.

No. 11746.

Supreme Court of Montana.

Nov. 24, 1969.

Rehearing Denied Jan. 6, 1970.

Sandall, Moses & Cavan, Billings, Charles F. Moses argued, Billings, Kelly & Carr, Miles City, Patrick J. Kelly argued, Miles City, Grant & Heard, Columbus, Richard W. Heard, argued, Columbus, for relators.

Robert L. Woodahl, Atty. Gen., Helena, John L. Adams, County Atty., Billings, Robert Brooks, County Atty., Broadus, William Blenkner, County Atty., Columbus, Robert Cannon, Asst. Atty. Gen., argued, Helena, for respondent.

JOHN CONWAY HARRISON, Justice.

Petitioners, Marie Sikora, Clarence P. Carlat and John Michael Radford (hereinafter after referred to as relators) appeared in this Court seeking a writ of supervisory control or other appropriate relief. This Court issued an order to show cause, briefs were submitted and the matter argued.

The relators above listed are each charged separately with murder in the first degree. The cases are pending in two separate judicial districts. In the matter of the relator Clarence P. Carlat, the district court ruled on a pretrial motion challenging a portion of the Montana Code of Criminal Procedure as being unconstitutional. In the Marie Sikora case, a similar motion was submitted but the trial court has withheld a ruling pending this Court's disposition of the petition. In the John Michael Radford case, the trial court ruled the motion was not determinable before the trial of the cause and ordered that the motion be deferred for determination upon trial of the general issue.

The challenged section of the recently adopted Montana Code of Criminal Procedure, section 95-1803(d), R.C.M.1947, provides as follows:

'For purpose of notice only and to prevent surprise, the defendant shall furnish to the prosecution and file with the clerk of the court at the time of entering his plea of not guilty or within ten (10) days thereafter or at such later time as the court may for good cause permit, a statement of intention to interpose the defense of insanity, self-defense or alibi. If the defendant intends to interpose any of these defenses, he shall also furnish to the prosecution and file with the clerk of the court, the names and addresses of all witnesses to be called by the defense in support thereof. The defendant may, prior to trial, upon motion and showing of good cause, add to the list of witnesses the names of any additional witnesses. After the trial commences, no witnesses may be called by the defendant in support of these defenses, unless the name is included on such list, except upon good cause shown.'

Each of the relators alleges that said portion of the new code is unconstitutional in that it violates the 4th, 5th, 6th and 14th Amendments of the Constitution of the United States. Relator Carlat alleges the district court erred in its order requiring the notice of the defense of insanity, self-defense or alibi either through a mistake of law or in willful disregard of it and that such order is not appealable.

We are aware of the refusal of both the appellate and supreme courts of New Jersey to review a like situation in that state, where the statute required notice of an alibi and requiring the defense to be raised properly at trial. State v. Angeleri, 48 N.J. 348, 225 A.2d 361 (1966). However, here we are confronted with the same attack in three separate murder cases. In view of the fact this is new law with no precedent in this jurisdiction; that the trials will be lengthy and costly, with the state bearing the burden of said cost, it is in our opinion necessary that in this matter only we assume jurisdiction. In so doing we are not changing our rules in this particular.

Regardless of the allegations of relators, section 95-1803(d), R.C.M.1947, is not designed to compel a defendant to say anything. Rather it requires the specific pretrial disclosure if, but only if, the defendant plans to assert the defense of insanity, self-defense or alibi. The purpose of the statute is expressed as that of notice only and to prevent surprise.

At this procedural stage of the proceedings the relators cannot allege that being required to give notice of their defense incriminates them, for the Constitution does not protect a defendant from the consequences of a defense he makes, nor does it assure him a right to so defend as to deny the state a chance to check into the truth of his position. The cases uniformly reject the constitutional challenge here made. Rider v. Crouse, 357 F.2d 317, 318 (10 Cir. 1966); Jones v. Superior Court of Nevada County, 58 Cal.2d 56, 22 Cal.Rptr. 879, 882, 372 P.2d 919, 922, 96 A.L.R.2d 1213 (Sup.Ct.1962); State v. Stump, 254 Iowa 1181, 119 N.W.2d 210, 219 (Sup.Ct.1963), certiorari denied, 375 U.S. 853, 84 S.Ct. 113, 11 L.Ed.2d 80 (1963); People v. Shulenberg, 279 App.Div. 1115, 112 N.Y.S.2d 374 (3d Dept. 1952); People v. Rakiec, 260 App.Div. 452, 23 N.Y.S.2d 607, 612, 613 (3d Dept. 1940); People v. Schade, 161 Misc. 212, 292 N.Y.S. 612 (Cty.Ct.1936); State v. Thayer, 124 Ohio St. 1, 176 N.E. 656, 75 A.L.R. 48 (Sup.Ct.1931); Commonwealth v. Vecchiolli, 208 Pa.Super. 483, 224 A.2d 96, 99 (Super.Ct.1966); State v. Kopacka, 261 Wis. 70, 51 N.W.2d 495, 30 A.L.R.2d 476 (Sup.Ct.1952), annotated, 30 A.L.R.2d 480 (1953); 1 Wharton, Criminal Evidence (12th ed. 1955); § 23, p. 75; 2 Underhill, Criminal Evidence (5th ed. 1956); § 440, p. 1110; State v. Dodd, 101 Ariz. 234, 418 P.2d 571, 574 (Sup.Ct.1966).

Not all evidence obtained from a defendant is privileged under the 5th Amendment to the United States Constitution. The accused have been subject to: Blood samples and tests, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908; Appearing in lineups, Commonwealth v. Johnson, 201 Pa.Super. 448, 193 A.2d 833, United States v. Wade, 385 U.S. 811, 87 S.Ct. 81, 17 L.Ed.2d 53; Fingerprinting, People v. Jones, 112 Cal.App. 68, 296 P. 317; Furnishing specimens of handwriting, Gilbert v. California, 384 U.S 985, 86 S.Ct. 1902, 16 L.Ed.2d 1003; Posing in court for identification purposes, People v. Clark, 18 Cal.2d 449, 116 P.2d 56, 62; Disclosure of records and documents kept by accused in compliance with state or federal statutes, Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787, Stillman v. United States, 177 F.2d 607; Medical examination of a prostitute for venereal disease pursuant to state statute, Ex parte Fowler, 85 Okl.Crim. 64, 184 P.2d 814; Medical examination when pleading insanity as a defense, Hunt v. State, 248 Ala. 217, 27 So.2d 186, 190-194, State v. Olson, 274 Minn. 225, 143 N.W.2d 69; Furnish names of witnesses who testify on a impotency defense, Jones v. Superior Court of Nevada County, 58 Cal.2d 56, 22 Cal.Rptr. 879, 372 P.2d 919; Disclosure of a letter addressed to wife sent from jail while awaiting trial for murder, State v. Grove, 65 Wash.2d 525, 398 P.2d 170; Laws requiring a driver to stop and identify himself after an accident, People v. Rosenheimer, 209 N.Y. 115, 102 N.E. 530, 46 L.R.A.,N.S., 977.

In addition, the Uniform Act to Secure the Attendance of Witnesses from without a State in Criminal Proceedings, sections 94-9001-9007, R.C.M.1947, is another procedural provision of our Code wherein either the state or the defense must, before trial, reveal to the opposition at least part of its case. While this act has not been before this Court for construction, it has its counterparts in some 46 of our sister states plus the District of Columbia, Puerto Rico, and the Virgin Islands, and has been the law of most of these jurisdictions since the late 1930's. Montana adopted it in 1937, Chap. 188, Laws of 1937.

Mr. Justice Brennan in writing for the majority said in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966):

'The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling 'communications' or 'testimony,' but that compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it.'

The pivotal issue is one of basic public policy as to how completely pretrial discovery and inspection in criminal cases should be analogized to that in civil cases. Such pretrial discovery in criminal cases is now in the evolutionary stage and each case must of necessity face the constitutional questions that arise, when and if they are raised during trial. The contention of the relators that any condition, however reasonable, constitutes an abridgment of their constitutional rights is not supportable, for reasonable in nature does not ipso facto constitute an abridgment of basis rights involved. Preconditions to the right to raise constitutional defenses are not unknown to the law.

As concerns the argument based on public policy we direct attention to what is said by a recognized authority on statutory construction:

'What is called the 'policy' of the government, with reference to any particular legislation, is said to be too unstable a foundation for the construction of a statute. The clear language of a statute can be neither restrained nor extended by any consideration of supposed wisdom or policy. So long as a legislative enactment violates no constitutional provision or principle, it must be deemed its own sufficient and conclusive evidence of the justice, propriety and policy of its passage.' Endlich, Interpretation of Statutes, § 5, pp. 8, 9.

The legality of search and seizure must be raised by motion before trial or the trial court has the discretion not to consider the question. Alston v. State, 30 Wis.2d 88, 140 N.W.2d 286 (1966). A plea of insanity requirement to be made on arraignment has been...