No. 12990 INTHE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA,Plaintiff and Respondent,

ANDRA PHILLIP STEWART, Defendant and Appellant.

Appeal from: DistrictCourt of the Eighth Judicial District, Hon. Robert S. Keller, Judge presiding. Counsel of Record: For Appellant: Moses, Kampfe, Tolliver and Wright, Billings,

Montana Charles F. Moses argued, Billings, Montana For Respondent: Hon. Michael Greely, Attorney General, argued,

Helena, Montana J. Fred Bourdeau, County Attorney, argued,

Great Falls, Montana

Submitted: January 24, 1977

-, Filed:

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## 7.'-, ,-Mr. Justice Daniel J. Shea delivered the Opinion of the Court.

Defendant Andra Phillip Stewart appeals from a conviction of aggravated kidnappingunder section 94-5d303,R.C.M. 1947, following trial in the District Court,Cascade County. In early January, 1974, defendant, an airman stationed at Malmstrom Air Force Base near Great Falls,Montana,was involved in

a court-martial hearing at that installation. On January 9,after spending the afternoon atMalmstrom's legal office,defendantmet Larry Vample, also an airman at the Base, and the two men went to the Base recreation center. They stayed there for a few minutes, then drove inVample's car to the apartment of Billy Naray Evans in Great Falls. Vample later left Evans' apartment in his car, and defendant and Evans drove to Darrell Sloan's apartment, where they met Vample, Sloan,and three other airmen.

' Themen discussed defendant's court-martial. Defendant told them someone had informed on him and others living off the Base in Great Falls. John K. Walsh, Jr., an airman who lived in defendant'sbarracks, was mentioned as a possible informant. They agreed to confront Walsh and to force him to tell them whether he had informed,and if he had,what he had said. Before leaving for the Base, Evans obtained a syringe from one of the other airmen and filled it with battery acid,with the apparent intention of using this device to threatenWalsh. They arrived at Malmstrom sometimebetween 9:00 and 9:30 p.m. While the otherswaited in his barracks room,defendantwent to get Walsh. Defendant returned with Walsh, and asked him if he had been an informant. Walsh denied he had informed on anyone,and bolted for the door. He was stopped, a scuffle ensued, and Walsh

was knocked to the floor and grabbed by severalpeople. Evans then tried to inject the battery acid into Walsh's leg,but the needle broke and the attempt was unsuccessful.

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One of themen threatened Walsh with a gun, telling him to be quiet. Walsh finallywas subdued. By this time, the only persons left in defendant's roomwere Evans,Vample, Walsh, and defendant. Hismouth taped and his bod-ywrapped in a blanket, Walsh was carried out of the barracks,placed in Vample's automobile,and taken to the Giant Springs recreation area near Great Falls. There Walsh was removed from the vehicle and shot--once in the chest and three times in the head. His body was thrown over the bank of the Missouri River, where itwas found three days later by a fisherman. Therewas a direct conflict in testimony at the trial concerning who was present and who did the shooting when JohnWalsh, Jr. was killed. Evans and Vample testified they, togetherwith defendant, took Walsh to Giant Springs and defendant shot and killed Walsh. Defendant testified he abandoned the enterprise as Walsh

was being taken from the barracks by Evans and Vample, and he was not presentwhen Walsh was shot. Defendant subsequentlywas arrested and charged by Information, filed in the DistrictCourt,Cascade County, on three felony counts: one court of deliberate homicide, in violation of section 94-5-102,R.C.M. 1947, and two counts of aggravated kidnapping, in violation of section 94-5-303,R.C.M. 1947. Defendantplead not guilty to each of the counts of the Information. Trial by jury began on September 9,1974. At the conclusion of the state's case, the trial court granted defendant's motion to dismiss the third count,which alleged defendant kidnapped Walsh for the purpose of interfering with a governmental investigation. On September 19, 1974,defendantwas found not guilty of the deliberate homicide count, and guilty of the remaining count of aggravated kidnapping. Defendant appeals from the conviction and from the 100year sentence imposed thereon.Defendantpresents twelve issues for review: 1. Whether the DistrictCourt had jurisdict.ionover this kidnapping offensewhich occurred on a United States Air Force Base. 2. Whether defendant's motion for a change of venue should have been granted. 3. Whether Air Forcepersonnel and Blackswere spectacularly and purposely excluded from the assessment rollwhich made up the jury panel list. 

### 4. Whether testimony and evidence obtained 

### by the use of a dog is admissible. 5. Whether the District Court erred when it refused defendant the right to cross-examinea prosecution witness as to his military rank. 6. Whether the District Court erred when it refused to allow testimony as to items seized under a search warrant. 

### 7. Whether a prosecution witnesswas erroneously permitted to testify as to a self-serving and hearsay statement. 8. Whether a prosecution witness was erroneously permitted to testify as to his conclusion. 9. Whether the District Court erroneously answered a jury question after the case was submitted to the jury. 10. Whether the kidnapping punishment statutewhich requires the sentencing judge tomake a finding of fact and base his sentence thereon is unconstitutional. 11. Whether the 100 year sentencewas error. 12. Whether the District Court improperly retried the case by personally interviewing witnesses after the jury verdict and thenmaking determinations of fact as a part of the sentencing procedure. Issue 1. Defendant contends the District Courtwas without jurisdiction over the kidnapping offense because the crime tookplace on a United StatesAir Force Base. In State ex rel. Parker

v. District Court, 147Mont. 151, 155, 410 P.2d 459 (1966),this Court held that where the federal government purchases land from the state, the state reserves criminal jurisdiction over such lan?. after itspurchase. Defendant recognizes Parker,but contends 1) it is erroneous, and 2) it is no longer controlling as the law has since been changed and the state now has no such jurisdiction. We affirm our holding in Parker. The state may reserve criminal jurisdictionover land conveyed to the federal government. Statev. Rindal, 146 Mont. 64, 67, 404 P.2d 327 (1965). The next question of Issue 1 iswhether section 95-304, R.C.M. 1947, the general statute for criminal jurisdiction, enacted after Parker,divests the state of jurisdiction over a crime committed on a federal military base located inMontana. In relevant part, section 95-304provides: "(a)A person is subject to prosecution in this state for an offensewhich he commits

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## * if: "(1) The offense is committed eitherwholly or partly within the state

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"(d) This state includes the land and water and the air space above such land and water with respect to which the state has legislative jurisdiction.

### " Defendant argues that since Montana first must have legis-, lative jurisdiction over the Air Force Base before it can claim criminal jurisdiction,under section 95-304,the state may not try the kidnapping in the present case. We do not think this statute

can be so narrowly interpreted. The Revised Commission Comment concerning section 95-304 states: "Thepurpose of this section is to establish a broad grant of jurisdiction for all crimes.

"Subsection (d)claims for the state of Montana the maximum territorial jurisdiction compatible with federal claims."There is nothing in the language of section 95-304 indicating legislative intent to restrict jurisdiction this state had previously exercised over crimes committed on land purchased by the federal government. We hold the District Court did have jurisdiction. Issue 2. Defendant contends the trial court should have granted his motion for change of venue because of the anti-Black attitude alleged to exist in Great Falls, the trial site. Defendant and the other airmen involved in the incident are Blacks. The victim was Caucasian. Defendantdid not move for change of venue until the eve of trial. One witness called in support at the hearing on defendant's motion wasAir Force Captain Theron R. Jones,Chief of Social Activities atMalmstrom. Themain thrust of his testimonywas that there is, in his opinion, a kind of "unconsciousbias" against Blacks in Great Falls. He explained that by "unconsciousbias", he meant the local populationwould tend to judge a Black person to be a troublemaker. A Black himself, Capt. Jones conceded he had not had any problems personally, but indicated other Blacks experienced this "unconsciousbias". During the hearing, this exchange took place: "THE COURT: Do you think going out of this county would change unconscious bias? "THEWITNESS: [Jones]Notin the State of Montana, no.

"MR.WRIGHT: [counsel for defendant] Your Honor, I personally think 

## * * * I asked the Captain if he thought Airman Stewartwould get a fair trial here, and I believe your answer was 

## * * * "THEWITNESS: My answer is no. "THECOURT: By the same token,you don't think he would get any fairer a trial anywhere else in the State as far as you know? "THEWITNESS: As far as Iknow."Captain Jones stated this "unconscious bias" probably existed through-. out the state of Montana and that it.also existed in other states where he had been stationed. The only other evidence on thispoint

was presented by the samewitness, who testified to somevague prohlems created in the communityby Black Air Forcepersonnel dating localwhite, Indian,and Chicana girls. A clear abuse by the District Judge in denying a change of

venue is required to support reversal of his denial. Statev. Logan, 156 Mont. 48, 58, 473 P.2d 833 (1970). Neither in the original hearing on this motion nor on appeal has defendant shownhe could not receive a fair trial in Cascade County. There is simply no evidentiary basis in the record to show the trial court abused its discretion in denying a change invenue. Issue 3. Defendant contends he was denied a fair trial because Air Forcepersonnel and Blacks were excluded from the assessment roll whichmade up the jury panel list. There is no dispute that no Black Air Forcepersonnel were included in the jury panel list. A fair cross section of the communitymust be represented on such a panel to fulfill the SixthAmendment" guaranty of an impartial jury trial in criminalprosecutions. While a defendant is not entitled to a jury of any particular composition,the jury panel "must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L ed 2d 690, 703 (1975). The jury panel in the instant case came from the Cascade County assessor's list of qualified taxpayers, amethod of selection that is not per se unconstitutional. Leggroan v. Smith, 498 F.2d 168, 170 (10thCir. 1974). Defendant argues thismethod is unconstitutionalhere becauseitsuse results in the exclusion of a sub-stantial percentage of the Air Force personnel atMalmstrom from the county's jury panel. The record disclosesAir Forcepersonnel constitute approxi-. mately 15 percent of the population of Cascade County, and that approximately 10 percent of allAir Forcepersonnel at Malmstrom are Black. The assessor's list of taxpayers, however, includes only about 20 percent of theAir Force personnel who live in the county. The questions is--Does this variation between the percentage of Air Forcepersonnel in the county and the percentage of their representationon the jury panel, as taken from the assessment roll, reflect a constitutional infirmity in the selection method. We hold that it does not. Under the Soldiers' and Sailors' ! Relief Act, 50U.S.C.' S574, enacted in 1940,military personnel may not be required to pay taxes in the state inwhich they are stationed if they retain residence elsewhere. CascadeCounty allows Air Forcepersonnel to exempt themselves from this taxation by the signing of an affidavit stating that the affiant is a nonresident. The effect of this voluntary exemption is to keep those who so elect off of the assessment roll,and consequently,off of the county's jury panel list. Here, at the time of trial, state law required that a juror be a resident of this state for one year. Section 93-1301,R.C.M. 1947 (repealed 1975). One year residency requirements for jurors have been upheld as constitutional. United Statesv. Ross, 468 F.2d 1213, 1216 (9thCir. 1972), cert. denied 410U.S. 989, 93 S.Ct. 1500, 36 L ed 2d 188;United Statesv. Perry, 480 F.2d 147, 148 (5thCir. 1973)

## . By signing the affidavitof nonresidency required for exemption from taxation, military personnel established exemption from jury duty in the state. The latter effectwas incidental; the purpose of the exemption affidavitwas to facilitate compliancewith federal law respecting the status of military personnel as taxpayers in the state where they are stationed. Nonresidency is sufficient grounds 

### for the exclusion from the jurypanel list of themajority of Air Forcepersonnel living in Cascade County on temporary assignment, and defendant'sconviction therefore is not invalid. Since over 95percent of the Black population of Cascade County isAir Force personnel, it follows that, ifmost of them choose to take the exemption from taxation, only a small percentage of the jury panel listwill be Blacks. The number of Black Air Forcepersonnel remaining for inclusion in the jury panel equals approximately .35percent of the county's total population. All Blacks in CascadeCounty constitute approximately 1.65 percent of the county's population; the variation between thepercentage of Blacks in the county and those qualified to be on the jury panel list thus is about 1.4 percent. Defendant cites no authority to the effect that such a small variation shows systematic exclusion of a distinctive community group. Issue 

### 4. Defendant contends the trial court improperly allowed testimony as to evidence obtained through the use of dogs during the search of the Giant Springs area. Keith Wolverton, a CascadeCounty deputy sheriff, and other sheriff's departmentpersonnel brought several dogs to the area after the victim's body

was discovered there. The dogs located a pool of blood in the snow, and after examination the sheriff's deputies recovered two bullets in or near the blood. Defendantargues that under State v. Storm, 125 Mont. 346, 238 P.2d 1161 (1951),testimony given by Deputy Wolverton relating to the recovery of this evidence should not have been permitted. In Storm,bloodhounds allegedly followed a scent from a foot or kneeprint found near the site of a fatal shooting which ultimately ledthem to the defendant's house. The handler testified that his dogs' behavior would tend to incriminate the defendant. Thepurpose of the testimonywas to link the defendant to the crime, and it was the only evidence. Storm is clearly distinguishable from the present case. Here, dogswere not used to track and locate the defendant,and the testimony allowed did not tend to identify defendant as having been in the area searchedwith the aid of the dogs. The testimony objected to here was not that of a dog or other dumb animal as interpreted by his handler. Itwas that of an investigatingofficer, whose tools included specially trained dogs. Defendantwas afforded ample opportunity on cross-examinationto question the relevance of the evidence recovered with the aid of the dogs, and Deputy Wolverton's testimony concerning this recovery is not "bloodhound testimony" found to be incompetent in Storm. The testimony was properly allowed. Issue 5. Defendant contends the trial court erred in refusing his inquiry as to themilitary rank of a prosecution witness, Robert Lus~, Jr. Lusk, a special agent of theAir Force Office of Special Investigations, testified on direct examination that the victim,Walsh, had provided him with information concerning criminal investigations Lusk's officewas carrying out atMalmstrom. Inhis testimony, Lusk identified the victim'sbody in a photograph as Walsh. Inhis voir dire of thewitness, defense counsel asked Lusk what his military rank was. Lusk replied that his rank was privileged. During the in-chambers discussion that followed, defense counsel contended the question as to Lusk's rank was related to the second count of aggravated kidnapping,the charge involving defendant's alleged interferencewith the performance of a governmental investigation.In chambers, the witness stated that nondisclosure of his military rank was necessary to insure cooperation from military personnel being investigated. Itwas the Air Force'sbelief that personnel of a lower rank than the investigatorwould be intimidated, and thatpersonnel of a higher rank might intimidate a lower ranking investigator. The trial court ruled Lusk's rank was irrelevant,and since the purpose of Lusk's direct testimonywas to identify the victim, inquiry into the witness' rank exceeded the scope of direct examination. Defendanthas shown no prejudice as a result of the trial court's ruling. Whatever inquiries defendant may have made concerning the third count were rendered moot by the trial court's granting of defendant'smotion to dismiss that count at the close of the state's

case. Issue 6. Defendant contends the trial court improperly refused to allow testimony as to items seized under a search warrant. Cascade County Deputy Sheriff William Fargo testified on direct examination that he searched defendant's barracks room and recovered

a note and somemasking tape. On cross-examination,he stated a rug and sheets from defendant's bed were also recovered,and that the other officer present seized other items. Deputy Fargo also testified a complete inventory of all items seized was filed as a return on the search warrant with the issuing court. When defense counsel asked howmany items were taken, the state objected on the grounds the best evidence would be the search warrant and return thereon,and the trial court sustained the objection. Defendanthas not shown how he was prejudiced by this ruling, and the fact the witness testified on recross-examinationas to the other items seized eliminates any possibility of prejudicial error. Issue 

### 7. Defendant contends a prosecutionwitness was improperly allowed to make a self-serving and hearsay statement.Thewitness,Air Force Captain Robert Stewart, was brought to 14almstrom to try defendant'scourt-martial. On cross-examination, defense counsel asked the witness if he had made formal application to call JohnWalsh, Jr., as a witness in the courtmartial proceedings. Captain Stewart testified he hadmade no such application, and theAir Force Office of Special Investigationshad refused to officially release Walsh's name. On redirect examination, the witness was asked if he had attempted or had been precluded from making formal application for Walsh as a witness. This question triggered defendant's objection,and the trial court's overruling of the objection, here specified as error. Thewitness' answer, that he had been precluded from calling Walsh in the sense that the Office of Special Investigationswould not release Walsh's name,was not prejudicial to the defense. There was no error in allowing the question. Issue 8. Defendant contends the trial court should not have permitted a prosecution witness to testify that he knew of no reasonwhy Billy Naray Evanswould shoot JohnWalsh, Jr. Defendant argues the question called for a conclusion and therefore, the trial court should have sustained his objection to the question. Defendant has shown no prejudice from this question or its

answer with respect to the kidnapping charge. The question went to the prosecution's attempt to prove defendant guilty of the deliberate homicide charge,of which he was found innocent. There was no prejudicial error in permitting the witness to reply to the question. Issue 9. Defendant contends the trial court erroneously answered a jury request after the matter was submitted to the jury. The record discloses thiswas submitted, inwriting, to the trial court:"There have been two charges of kidnapping. They dropped one charge. Could you specify the charge and boundary of the charge that was dropped? We the jury feel that one charge that was dropped is the one inside. The other we feel is the one with the car to Giant Springs." Defendant and his counsel were given the opportunity to read the request. Defendant argued the only proper responsewould be to supply the jurywith a copy of the dismissed third count. Over defendant's objection, the trial court gave the jury a written answer which stated that the Informationalleged two counts of aggravated kidnapping;set forthboth counts verbatim from the Information;and, concluded by stating that Count I11had been dismissed. Defendant contends the answer, as given,placed undue emphasis on the remaining kidnapping count and therefore impcoperly indicated to the jury how it should view the evidence. This contention iswithoutmerit. The original instructionsdid not set out the Information under which defendantwas charged. The instructionsdid state defendantwas charged with deliberate homicide and aggravated kidnapping, and indicatedwhat those charges entailed. The response to the jury's request given by the trial courtwas nomore than

an additional,warranted instructionas to the law applicable to the case. Under section 95-1913(d),

### R.C.M. 1947, a trial courtmay give additional instructionsafter the case has been submitted to the jury. In Statev. Hawkins, 165Mont. 456, 460, 529 P.2d 1377

(1975), this Court held it is in the discretion of the trial court whether or not to give additional instructionswhen such a request ismade. There was no abuse of discretion in the present case. Issue 10. Defendant challenges the constitutionality of section 94-5-303(2), R.C.M. 1947,the aggravated kidnappingpunishment statute. This sub-section,before amendment in 1977,provided:"(2)A person convicted of the offense of aggravated kidnapping shallbe punished by death asprovided in section 94-5-304, or be imprisoned in the state prison for any term not to exceed one hundred (100)years unless he has voluntarily released the victim, alive, in a safe place, and not suffering from serious bodily injury, inwhich event he shall be imprisoned in the state prison for any term not to exceed ten (10) years.

### " Defendant asserts this statute is unconstitutional because it requires the trial court tomake a finding of fact, thereby violating defendant's right to have all facts submitted to and determined by the jury. The existence of every fact necessary to constitute the crime charged must be proved beyond a reasonable doubt. In re Winship, 397U.S. 358, 90 S.Ct. 1068, 25 

### L ed 2d 368, 375 (1970). Initially, the question iswhether an accused'svoluntary release of or failure to release his victim in a safe place, alive and not suffering from seriousbodily injury,has any bearing on his guilt

or innocence of the crime of aggravated kidnapping. Clearly it does not. Section 94-5-303(1), R.C.M. 1947, provides: "(1)A person commits the offense of aggravated kidnapping if he knowingly or purposely and without lawful authority restrains another person by either secreting or holding him in a place of isolation, or by using or threatening to use physical force, with any of the following purposes: "(a) to hold for ransom or reward, or as a shield or hostage; or "(b) to facilitate commission of any felony or flight thereafter; or "(c)to inflict bodily injury on or to terrorize the victim or another;or "(d) to interfere with theperformance of any governmental or political function;or "(e) to hold another in a condition of involuntary servitude." The intent to restrain and the restraint, for any of the enumerated purposes, are the facts the jurymust determine to establish anaccused'sguilt of aggravated kidnapping. No additional facts need be proved in order to constitute the crime. The next question of Issue 1-0 iswhether defendant's right to a jury trial includes the right to have the jury determine facts that relate only to the severity of punishment, once guilt has been established. In Pattersonv. New York, U.S. 

### , 97 S.Ct. 2318, 53 

### L ed 2d 281 (decidedJune 17, 1977), the United States Supreme Court held that a state may require a defendant to prove mitigating circumstances of severe emotional distress as an affirmativedefense to a second degree murder charge. The challenge there turned on the defendant's contention that due process required the stateprove beyond a reasonable doubt that he had not acted under the influence of severe emotional distress. The Court found the mitigating factor

was a separate issue,neither presumed nor inferred to be an element of the crime from the statutory definition of the offense,and the state therefore did not have the burden of proving it. In language relevant to the present case,Justice Powell in his dissent in Patterson stated: 

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## * * The Due Process Clause requires that the prosecutor bear the burden of persuasion beyond a reasonable doubt only if the factor at issuemakes a substantial difference inpunishment and stigma. The requirement of course applies a fortiori if the factormakes the differencebetween guilt and innocence. But a substantial difference in punishment alone is not enough. Itmust also be shown that in theAnglo-American legal tradition the factor in question historically has held that level of importance. 

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### L ed 2d 302. Here, we are concerned with a statutehaving a bifurcated sentencing provision rather than a statute that separately allocates the burden of proof, as in Patterson. However, the present case and Patterson,both, focus on the status of a factneither by tradition nor by statute a necessary element of the crime charged. The majority decision and Justice Powell's dissent in Patterson indicatethat when the presence or absence of such a factdetermines only the severity of punishment, it need not be proved by the statebeyond

a reasonable doubt. The release or nonrelease of a kidnapper's victim is such a fact, and it iswithin the power of the state to allow the trial court, rather than the jury, tomake this factual determination. Issue 11. Defendantnext contends the 100year sentence imposed by the trial courtwas error. Defendant argues that since the jury acquitted him on the deliberate homicide charge, it necessarily follows it found he had not accompanied thevictim to Giant Springs. Defend-antasserts his abandonmentof the enterprise at the barracks exit limits his punishment under the applicable statute to

amaximum of 10years. Section 94-5-303(2) provides amaximum sentence of 10years for a person convicted of aggravated kidnapping when the accused voluntarily released the victim, alive, in a safe place, and not suffering from seriousbodily injury. Defendantmaintains that under the factsof the present case, as found by the jury,he did voluntarily release JohnWalsh,Jr. alive and not suffering from bodily injury in a safeplace, theMalmstrom Air Force Base barracks where defendant and Walsh lived. Even assuming that Walsh was alive and not seriously injured when defendant claims to have left himwith Vample and Evans, it cannotbe said defendant releasedWalsh in a "safeplace". It defies logic to say that a location is,as amatter of law, "safe" for a person who there was struck by a lamp, threatened with a gun, assaulted with a syringe filled with battery acid, bound, gagged and wrapped in a blanket. Thiswas not a release in a "safe place" as would entitle defendant to receive the benefit of the lesser sentence, and there

was no inconsistency in sentencing this defendant to the greatersentence, even if he had no further participation in the events that culminated in Walsh's death. Issue 12. In his final issue defendant challenges the methods employed by the trial court in conducting its own presentence investigation following defendant's conviction. The record shows thatatvarious times and places between September 19, 1974, when the jury returned itsverdict, and October 15, 1974, the date 

### of the presentence hearing, the trial judge personally interviewed severalpersons who testified at the trial. The day after the trial concluded, the trial judge interviewedwitness Jimmy Lee Thomas at Malmstrom. On the night before the hearing on defendant's bail request, the trial judge interviewedwitnesses Billy Naray Evans and Larry Vample at the Cascade County jail. On the day of the bail hearing, the trial judge interviewedwitness Hiram McDonald at an undisclosed location. Also interviewed,at times and places not appearing in the record,were witnesses Fay McRoberts and Marion Johnson,Jr. No record wasmade of any of these interviews,and no notice was given to defendant or his counsel of the trial court's intent to conduct the interviews. When defense counsel learned of the trial court's actions in this regard,during an in-chambers discussion just prior to the opening of the presentence hearing, he moved the trial judge to disqualify himself from the sentencing of defendant. Themotion was denied, and the question here iswhether it

was proper for the trial court to act as the sentencing judge in light of his out-of-court interviewing of severalwitnesses. Defendant argues the trial judge should have disqualified himself. He reliesprimarily on Kuhl v. District Court, 139 Mont. 536, 366 P.2d 347 (1961),and State

### v. Simtob, 154Mont. 286, 462 P.2d 873 (1969). In both cases this Court held that the reliance on informationprivately received by a sentencing judge is an abuse of the judge's sentencing discretion. However, neither case is controlling here.In Kuhl, the Court was interpreting sentencing statutes, sections 94-7813 and 94-7814,R.C.M. 1947, repealed in 1967,and replaced by sections 95-2203, 95-2204, and 95-2205,R.C.M. 1947. The statutes are considerablydifferent. In Simtob, the Court was interpreting a provision of the Dangerous Drug Act (section 54-133, R.C.M. 1947)which provides that a first-time offender under 21 is presumptively entitled to a deferred imposition of sentence. The trial court relied on private information and sentenced defendant to a prison term. Defendant had no opportunity tomeet this information. Relying on Kuhl, this Court held use of this privately received information to be improper. In the present case, the controlling statutes are sections 95-2203, 95-2204,and 95-2205,R.C.M. 1947. Section 95-2203provides that a presentencing investigationbe prepared by a probation officer,when a defendant has been convicted of a crime which may result in a sentence of one year or more. Under section 95-2204, the probation officer is directed to inquire into,among other things, the circumstances of the offense. Section 95-2205 grants the sentencing judge the discretion tomake the report, in full or in part, available to the defendant and to allow cross-examination of those who gave information included in the report. The effect of these statuteson the question of whether a sentencing judge may receive and adopt information from sources other than the testimony of witnesses in open courtwas considered by this Court in State v. Orsborn, Mont

# . , 555 P.2d 509, 33 St.Rep. 935, 939 (1976). There,we held that when a defendant is protected against a sentencepredicated onmisinformation, there is no due process violationwhen presentence information comes from

a source not subject to cross-examination in court. Orsborn, supra. The specific protections found to have been present in Orsborn included: 1) defendantwas represented by counsel at thetime the sentencing informationwasmade known to him; 2) the defendant had the opportunity to rebut the information; and 3) the defendant chose to affirm the accuracy of the information. Orsborn, - however, cannotbe read tomean that in every case inwhich a sentencing judge goes beyond the confines of a presentencing investigation report, the sole question iswhether or not subsequentproceedings afford the defendant an opportunity to correct inaccuracies in the judge's information. When, as in thepresent case, the sentencing judge becomes

a private fact gatherer, he thereby oversteps his legitimate role

as a fact finder in the sentencingprocedure. Whether or not the defendant is "protected" frommisinformation is irrelevant. There is no doubt the trial judge'sprimary motivation in conducting the interviewswas to get the "full story"of the killing of JohnWalsh, Jr. The trial judge stated he was "satisfied the bulk of these witnesses there have a lot more to say than what we heard at this trial". The interviews were designed, at least in part, to find what was left out of their testim.ony. The trial judge characterized his discretion as a sentencing judge as being limited only by the requirement that "anything I

use be presented in open Court, so that there is no sand bagging." While the court's sincere efforts at full disclosure of and granting access to the sources of his presentence information are laudable, they cannot remove the prejudice to defendant that attached the moment the trial judge began his informal and private retrial of the case. A sentencing judge may not conduct his ownpresentence investigationby privately interviewing persons he believes to know more than they have told. By doing this,he becomes a fact gatherer

as well as a fact finder,and thereby subjects a defendant to an impossibleburden. Realistically, there is no way a defendant candislodge from a judge'smind, the results of his own personal investigation. It is only natural that a judge has at least a subconscious bias supporting the techniques used and the results of his own investigation. The judge,by this process, has unwittingly become intimately connected with the accusatoryprocess. In this case, for example,cross-examination of the witnesses whom the judge had privately interviewed,would only serve to make the co11.rt guardian of those conclusionshe adduced from his personal investigation. Moreover, assuming a witness had not told the truth to the trial judge during the private investigation, it is unlikely suchwitness would, on the witness stand, admit that he had on a previous occasion, lied to the very judge hearing his testimony. We must not forget that the presence of a 

### judge in a role as a private investigator,can be intimidating,if not coercive. This is not to say the trial court cannot acquiremore information as to the circumstancesof a crime. We only hold that if it is his desire to do so, he must delegate that responsibility to other officials. They can gather the informationand put it in a report to be made available to the defense. At the presentencing hearing, if anything in the report is contested, these officials may then be cross-examined as to the investigationand the results of their investigation. Here, itwould be an impossible burden to suggest that the defendant if he desired, could cross-examine the trial judge as to the methods he employed, and the results of his private investigation. Here, because the trial judge became so intimately involved in the presentence fact gathering process, it is clear he should have disqualified himself from sentencing the defendant. His failure to do so requires the sentence be vacated. In so holding,we emphasize thatwe reaffirm our adherence to the sentencing policy stated in Orsborn, supra,quoting fromWilliams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93L.Ed.

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## * * Highly relevant--if not essential--to [the sentencing judge's] selection of an appropriate sentence is the possession of the fullest informationpossible concerning the defendant's life and characteristics. And modern concepts individualizing punishmenthave made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirementof rigid adherence to restrictive rules of evidence properly applicable to the trial.'" However, the United States SupremeCourt also stated in Williams, supra: 

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## * * * Leaving a sentencing judge free to avail himself of out-of-court information 

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## * * does secure to him a broad discretionary power, one susceptible of abuse.

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## *" (Emphasis added.) 93 L.Ed. 1344. It is clear that in this case this sentencing discretion

was abused. We affirm the defendant's conviction;vacate the sentence imposed;and,

We Concur: remand for resentencinq.



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