No. 12990 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

STATE OF MONTANA, 

Plaintiff and Respondent, 

ANDRA PHILLIP STEWART, 

Defendant and Appellant. 

Appeal from: District Court 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 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

Defendant Andra Phillip Stewart appeals from a conviction 

of aggravated kidnapping under section 94-54303, R.C.M. 1947, following trial in the District Court, Cascade County. 

In early January, 1974, defendant, an airman stationed at 

Yalmstrom Air Force Base near Great Falls, Montana, was involved in 

a court-martial hearing at that installation. On January 9, after 

spending the afternoon at Malmstrom's legal office, defendant met 

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 in Vample'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. 

The men 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's barracks, 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 threaten Walsh. 

They arrived at Malmstrom sometime between 9:00 and 9:30 

p.m. While the others waited in his barracks room, defendant went 

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 several people. Evans then 

tried to inject the battery acid into Walsh's leg, but the needle 

broke and the attempt was unsuccessful. 
One of the men threatened Walsh with a gun, telling him to 

be quiet. Walsh finally was subdued. By this time, the only persons left in defendant's room were Evans, Vample, Walsh, and defendant. is mouth taped and his body wrapped 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 it was found three days later by a fisherman. 

There was a direct conflict in testimony at the trial concerning who was present and who did the shooting when John Walsh, 

Jr. was killed. Evans and Vample testified they, together with 

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 present when Walsh was shot. 

Defendant subsequently was arrested and charged by Information, filed in the District Court, 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. 

Defendant plead 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, defendant was 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 100 year sentence imposed thereon. 
Defendant presents twelve issues for review: 

1. Whether the District Court had jurisdict.ion over this 

kidnapping offense which 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 Force personnel and Blacks were spectacularly 

and purposely excluded from the assessment roll which 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-examine a 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 witness was 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 statute which requires 

the sentencing judge to make a finding of fact and base his sentence 

thereon is unconstitutional. 

11. Whether the 100 year sentence was error. 

12. Whether the District Court improperly retried the case 

by personally interviewing witnesses after the jury verdict and 

then making determinations of fact as a part of the sentencing 

procedure. 

Issue 1. Defendant contends the District Court was without 

jurisdiction over the kidnapping offense because the crime took 
place on a United States Air Force Base. In State ex rel. Parker 

v. District Court, 147 Mont. 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 lan1-l 

after its purchase. 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 jurisdiction over land conveyed to the federal government. 

State v. Rindal, 146 Mont. 64, 67, 404 P.2d 327 (1965). 

The next question of Issue 1 is whether 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 in Montana. In relevant 

part, section 95-304 provides: 

"(a) A person is subject to prosecution in this 

state for an offense which he commits * * * if: 

"(1) The offense is committed either wholly or 

partly within the state * * * 

"(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 legislative 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: 

"The purpose 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. 

Defendant did not move for change of venue until the eve 

of trial. One witness called in support at the hearing on defendant's motion was Air Force Captain Theron R. Jones, Chief of Social 

Activities at Malmstrom. The main thrust of his testimony was that 

there is, in his opinion, a kind of "unconscious bias" against 

Blacks in Great Falls. He explained that by "unconscious bias", 

he meant the local population would 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 "unconscious bias". 

During the hearing, this exchange took place: 

"THE COURT: Do you think going out of this county 

would change unconscious bias? 

"THE WITNESS: [Jones] Not in the State of Montana, no. 

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

personally think * * * I asked the Captain if he 

thought Airman Stewart would get a fair trial here, 

and I believe your answer was * * * 

"THE WITNESS: My answer is no. 

"THE COURT: 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? 

"THE WITNESS: As far as I know." 
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 this point 

was presented by the same witness, who testified to some vague prohlems created in the community by Black Air Force personnel dating 

local white, 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. State v. Loqan, 

156 Mont. 48, 58, 473 P.2d 833 (1970). Neither in the original 

hearing on this motion nor on appeal has defendant shown he 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 in venue. 

Issue 3. Defendant contends he was denied a fair trial 

because Air Force personnel and Blacks were excluded from the assessment roll which made up the jury panel list. There is no dispute 

that no Black Air Force personnel were included in the jury panel 

list. 

A fair cross section of the community must be represented 

on such a panel to fulfill the Sixth Amendment's guaranty of an 

impartial jury trial in criminal prosecutions. 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, a method of selection 

that is not per se unconstitutional. Leggroan v. Smith, 498 F.26 

168, 170 (10th Cir. 1974). Defendant argues this method is unconstitutional here becauseitsuse results in the exclusion of a sub- 
stantial percentage of the Air Force personnel at Malmstrom from 

the county's jury panel. 

The record discloses Air Force personnel constitute approximately 15 percent of the population of Cascade County, and that 

approximately 10 percent of all Air Force personnel at Malmstrom 

are Black. The assessor's list of taxpayers, however, includes 

only about 20 percent of the Air Force personnel who live in the 

county. The questions is--Does this variation between the percentage 

of Air Force personnel in the county and the percentage of their 

representation on 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' r ,' , .. - 

Relief Act, 50 U.S.C. S574, enacted in 1940, military personnel 

may not be required to pay taxes in the state in which they are 

stationed if they retain residence elsewhere. Cascade County allows 

Air Force personnel 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 States v. Ross, 468 

F.2d 1213, 1216 (9th Cir. 1972), cert. denied 410 U.S. 989, 93 

S.Ct. 1500, 36 L ed 2d 188; United States v. Perry, 480 F.2d 147, 

148 (5th Cir. 1973). 

By signing the affidavit of nonresidency required for 

exemption from taxation, military personnel established exemption 

from jury duty in the state. The latter effect was incidental; the 

purpose of the exemption affidavit was to facilitate compliance 
with 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 jury panel list of the majority of Air Force personnel living 

in Cascade County on temporary assignment, and defendant's conviction 

therefore is not invalid. 

Since over 95 percent of the Black population of Cascade 

County is Air Force personnel, it follows that, if most of them 

choose to take the exemption from taxation, only a small percentage 

of the jury panel list will be Blacks. The number of Black Air 

Force personnel remaining for inclusion in the jury panel equals 

approximately .35 percent of the county's total population. All 

Blacks in Cascade County constitute approximately 1.65 percent of 

the county's population; the variation between the percentage 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 

Cascade County deputy sheriff, and other sheriff's department personnel 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. 

Defendant argues 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 led 
them to the defendant's house. The handler testified that his dogs' 

behavior would tend to incriminate the defendant. The purpose of 

the testimony was to link the defendant to the crime, and it was 

the only evidence. 

Storm is clearly distinguishable from the present case. 

Here, dogs were not used to track and locate the defendant, and the 

testimony allowed did not tend to identify defendant as having been 

in the area searched with 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. It was that of an investigating officer, whose tools 

included specially trained dogs. Defendant was afforded ample opportunity on cross-examination to 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 the military rank of a prosecution witness, 

Robert Lusk, Jr. Lusk, a special agent of the Air Force Office 

of Special Investigations, testified on direct examination that the 

victim, Walsh, had provided him with information concerning criminal 

investigations Lusk's office was carrying out at Malmstrom. In his 

testimony, Lusk identified the victim's body in a photograph as 

Walsh. 

In his voir dire of the witness, 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 interference with 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. It was the Air Force's belief that 

personnel of a lower rank than the investigator would be intimidated, 

and that personnel 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 testimony was to identify the 

victim, inquiry into the witness' rank exceeded the scope of direct 

examination. 

Defendant has 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's motion 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 some masking 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 how many 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. Defendant has not shown how he was prejudiced by this ruling, 

and the fact the witness testified on recross-examination as to the 

other items seized eliminates any possibility of prejudicial error. 

Issue 7. Defendant contends a prosecution witness was 

improperly allowed to make a self-serving and hearsay statement. 
The witness, Air Force Captain Robert Stewart, was brought to 

Malmstrom to try defendant's court-martial. On cross-examination, 

defense counsel asked the witness if he had made formal application 

to call John Walsh, Jr., as a witness in the court martial proceedings. Captain Stewart testified he hadmade no such application, and the Air Force Office of Special Investigations had 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. The witness' answer, 

that he had been precluded from calling Walsh in the sense that 

the Office of Special Investigations would 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 

reason why Billy Naray Evans would shoot John Walsh, 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 this was submitted, in writing, 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 response would be to 

supply the jury with a copy of the dismissed third count. 

Over defendant's objection, the trial court gave the jury 

a written answer which stated that the Information alleged two counts 

of aggravated kidnapping; set forth both counts verbatim from the 

Information; and, concluded by stating that Count I11 had been dismissed. 

Defendant contends the answer, as given, placed undue emphasis on the remaining kidnapping count and therefore imp~operly 

indicated to the jury how it should view the evidence. This contention is without merit. 

The original instructions did not set out the Information 

under which defendant was charged. The instructions did state 

defendant was charged with deliberate homicide and aggravated kidnapping, and indicated what those charges entailed. The response 

to the jury's request given by the trial court was no more than 

an additional, warranted instruction as to the law applicable to 

the case. 

Under section 95-1913(d), R.C.M. 1947, a trial court may 

give additional instructions after the case has been submitted to 

the jury. In State v. Hawkins, 165 Mont. 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 instructions when such a request 

is made. 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 kidnapping punishment statute. This sub-section, before amendment in 1977, provided: 
"(2) A person convicted of the offense of 

aggravated kidnapping shall be punished by death 

as provided 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, in which 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 to make 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, 397 U.S. 358, 90 S.Ct. 1068, 25 L ed 2d 368, 375 (1970). 

Initially, the question is whether an accused's voluntary release 

of or failure to release his victim in a safe place, alive and not 

suffering from serious bodily 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.14. 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 comnission 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 the performance 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 jury must determine to establish an 
accused's guilt of aggravated kidnapping. No additional facts need 

be proved in order to constitute the crime. 

The next question of Issue 10 is whether 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 Patterson v. New York, U.S. , 97 S.Ct. 2318, 53 

L ed 2d 281 (decided June 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 affirmative defense 

to a second degree murder charge. The challenge there turned on 

the defendant's contention that due process required the state prove 

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: 

" * * * The Due Process Clause requires that the 

prosecutor bear the burden of persuasion beyond a 

reasonable doubt only if the factor at issue makes 

a substantial difference in punishment and stigma. 

The requirement of course applies a fortiori if 

the factor makes the difference between guilt and 

innocence. But a substantial difference in punishment alone is not enough. It must also be shown 

that in the Anglo-American legal tradition the 

factor in question historically has held that 

level of importance. * * *" 53 L ed 2d 302. 

Here, we are concerned with a statute having 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 fact neither by tradition nor by statute a necessary element of the crime charged. The 

majority decision and Justice Powell's dissent in Patterson indicate 
that when the presence or absence of such a fact determines only 

the severity of punishment, it need not be proved by the state beyond 

a reasonable doubt. The release or nonrelease of a kidnapper's 

victim is such a fact, and it is within the power of the state to 

allow the trial court, rather than the jury, to make this factual 

determination. 

Issue 11. Defendant next contends the 100 year sentence 

imposed by the trial court was error. Defendant argues that since 

the jury acquitted him on the deliberate homicide charge, it necessarily follows it found he had not accompanied the victim to Giant 

Springs. Defendant asserts his abandonment of the enterprise at the 

barracks exit limits his punishment under the applicable statute to 

a maximum of 10 years. 

Section 94-5-303(2) provides a maximum sentence of 10 years 

for a person convicted of aggravated kidnapping when the accused 

voluntarily released the victim, alive, in a safe place, and not 

suffering from serious bodily injury. Defendant maintains that 

under the facts of the present case, as found by the jury, he did 

voluntarily release John Walsh, Jr. alive and not suffering from 

bodily injury in a safe place, the Malnstrom Air Force Base barracks 

where defendant and Walsh lived. 

Even assuming that Walsh was alive and not seriously injured 

when defend.ant claims to have left him with Vample and Evans, it 

cannot be said defendant released Walsh in a "safe place". It 

defies logic to say that a location is, as a matter 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. 

This was 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 greater 
sentence, 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 

that at various times and places between September 19, 1974, when 

the jury returned its verdict, and October 15, 1974, the date of 

the presentence hearing, the trial judge personally interviewed 

several persons who testified at the trial. The day after the 

trial concluded, the trial judge interviewed witness Jimmy Lee 

Thomas at Malmstrom. On the night before the hearing on defendant's 

bail request, the trial judge interviewed witnesses Billy Naray 

Evans and Larry Vample at the Cascade County jail. On the day of 

the bail hearing, the trial judge interviewed witness 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 was made 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. The motion was denied, and the question here is whether it 

was proper for the trial court to act as the sentencing judge in 

light of his out-of-court interviewing of several witnesses. 

Defendant argues the trial judge should have disqualified 

himself. He relies primarily on Kuhl v. District Court, 139 Mont. 

536, 366 P.2d 347 (1961), and State v. Simtob, 154 Mont. 286, 462 

P.2d 873 (1969). In both cases this Court held that the reliance 

on information privately 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. 1917, repealed in 1967, and 

replaced by sections 95-2203, 95-2204, and 95-2205, R.C.M. 1947. 

The statutes are considerably different. 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 to meet 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 95-2203 provides that a presentencing investigation be 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 to make 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 statutes on the question of whether a 

sentencing judge may receive and adopt information from sources 

other than the testimony of witnesses in open court was 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 sentence predicated on misinformation, there 

is no due process violation when 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) defendant was represented by counsel at the 
time the sentencing information was made 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, cannot be read to mean that in every case in which a sentencing judge goes beyond the confines of a presentencing investigation report, the sole question is whether or not subsequent proceedings afford the defendant an opportunity to correct inaccuracies 

in the judge's information. 

When, as in the present case, the sentencing judge becomes 

a private fact gatherer, he thereby oversteps his legitimate role 

as a fact finder in the sentencing procedure. Whether or not the 

defendant is "protected" from misinformation is irrelevant. 

There is no doubt the trial judge's primary motivation in 

conducting the interviews was to get the "full story" of the killing 

of John Walsh, 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 test<-rnony. 

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 own presentence 

investigation by 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 

impossible burden. Realistically, there is no way a defendant can 
dislodge from a judge's mind, 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 accusatory process. In this 

case, for example, cross-examination of the witnesses whom the 

judge had privately interviewed, would only serve to make the col.l.rt 

guardian of those conclusions he 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 

such witness 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 acquire more 

information as to the circumstances of 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 information and put it in 

a report to be made available to the defense. At the presentencinq 

hearing, if anything in the report is contested, these officials 

may then be cross-examined as to the investigation and the results 

of their investigation. Here, it would 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 that we reaffirm our adherence 

to the sentencing policy stated in Orsborn, supra, quoting from 
Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 

"I* * * Highly relevant--if not essential--to 

[the sentencing judge's] selection of an appropriate sentence is the possession of the fullest 

information possible concerning the defendant's 

life and characteristics. And modern concepts 

individualizing punishment have made it all 

the more necessary that a sentencing judge not 

be denied an opportunity to obtain pertinent 

information by a requirement of rigid adherence 

to restrictive rules of evidence properly applicable to the trial.'" 

However, the United States Supreme Court also stated in 

Williams, supra: 

" * * * Leaving a sentencing judge free to 

avail himself of out-of-court information 

* * * does secure to him a broad discretionary 

power, one susceptible of abuse. * * *" (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 

We Concur: 

/-'/-7 u* Chief Justice 

(,)~LJL Justices Lj) @%ldziK?-