State v. Blackbird

• Decision Date: 18 April 1980
• Docket Number: No. 14970,14970
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Ernest BLACKBIRD, a/k/a Ernest Courchane, Defendant and Appellant.
• Court: Montana Supreme Court

Page 708

609 P.2d 708

187 Mont. 270

The STATE of Montana, Plaintiff and Respondent, v. Ernest BLACKBIRD, a/k/a Ernest Courchane, Defendant and Appellant.

No. 14970.

Supreme Court of Montana.

Submitted March 25, 1980.

Decided April 18, 1980.

Lawrence A. Anderson argued, Great Falls, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Allen B. Chronister argued, Asst. Atty. Gen., Helena, J. Fred Bourdeau, County Atty., Great Falls, for plaintiff and respondent.

HARRISON, Justice.

This is an appeal arising out of defendant's conviction of the crime of bail-jumping pursuant to section 45-7-308, MCA. Trial was had in the District Court of the Eighth Judicial District, in and for the County of Cascade.

Defendant was originally charged by information with the crimes of burglary, aggravated burglary, attempted burglary, and sexual intercourse without consent. After pleading not guilty to the crimes, defendant was released on his own recognizance under the condition that he appear for trial on November 13, 1978, at 9:30 a. m. Defendant, however, failed to appear for trial on the date and hour scheduled. Defendant was then charged on November 13, 1978, with the crime of bail-jumping, a felony, pursuant to section 45-7-308, MCA. According to that statute, a person commits bail-jumping if he is set free by court order on the condition that he will subsequently appear at a specified time and place and then purposely fails without lawful excuse to appear at that time and place.

Defendant entered a plea of not guilty to the charge and a jury trial was set for March 12, 1979. At trial, defendant argued as one of his defenses, that it was not his purpose or conscious object to fail to appear for the trial. The State attempted to rebut this defense with a jury instruction and the testimony of Barbara Gregovich and Daniel Donovan. Ms. Gregovich, a deputy clerk for the Cascade County Clerk's office, testified that she had heard defendant state in a court proceeding with respect to the date set for trial that, "I have to be there Monday at 9:30." Donovan, who was defendant's attorney on the original charges, testified that he had made certain statements to the court on November 13, 1978, about defendant's lateness in appearing for trial. Those statements related to a conversation Donovan had with defendant that morning. Donovan testified:

"I told the judge I had received a phone call at approximately ten minutes to nine that morning from Mr. Blackbird, and he had asked me, I believe, when the trial was. I told him it was at 9:30 and he'd better be there, and I don't know I can't remember the exact response, but I got the impression that he would try to show up for trial. And the reason I told this to the Judge was I wanted the Judge to wait an additional period of time before the Judge was going to issue a warrant for his arrest and put him back in jail."

Prior to the trial, the prosecution and defense counsel entered into an agreement captioned "Discovery." The agreement provided that the prosecution would produce for defendant, without the necessity of a court order, all materials that were discoverable. The agreement then listed materials which had been supplied as of the date of the document. Among the items, Item No. 3 indicated that no verbal or written statements of defendant had been furnished. Defendant contends that the agreement was, in effect, a stipulation entered into between him and the prosecution that the State would not use any verbal or written statements of defendant at trial. In line with this contention, defendant objected in particular to the testimony of Ms. Gregovich and claimed surprise. However, after granting defense counsel a continuance and an opportunity to interview Ms. Gregovich, the trial court admitted the testimony.

Finally the State submitted an instruction to the court which imputed Donovan's knowledge of the trial date to defendant. Over objection of defense counsel, the court gave the instruction which stated:

"Notice to attorney is notice to client employing him, and knowledge of attorney is knowledge of his client."

The jury found defendant guilty of the crime of bail-jumping and, on May 7, 1979 defendant was sentenced to ten years in the Montana State Prison at Deer Lodge, Montana.

Three issues are raised for our consideration upon appeal:

(1) Whether the trial court erred in admitting the testimony of Barbara Gregovich in view of the requirements of section 46-15-303, MCA.

(2) Whether the trial court erred in allowing defendant's former attorney, Daniel Donovan, to testify regarding a conversation he had with defendant about defendant's intention to appear for trial.

(3) Whether the trial court erred in giving an instruction which imputed knowledge of defendant's former attorney to defendant.

We find that the third issue is determinative of the result in this case. Here, the State had the burden of proving that defendant purposely failed, without lawful excuse, to appear at the time and date scheduled for trial. In this connection, the jury was given an instruction concerning one of the essential elements of the crime namely, the mental state of the defendant. The instruction imputed any knowledge or notice on the part of defendant's attorney regarding the trial date to the defendant. To prove that defendant had knowledge or notice of the trial date, the State merely had to prove that his attorney had similar knowledge.

Defendant objected to the giving of this instruction on the basis that it was, in effect, a conclusive presumption. He contends upon this appeal, citing Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, that the instruction had the effect of lowering the State's burden of proof, commenting on the evidence, and denying defendant a presumption of innocence.

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