No. 14677 IN

### THE SUPFEME COW OFTHE STATEOF ENTANA 1979

STATEOFMX?TANA, Plaintiff and Respondent,

EDWINGRANTHAMJLTON, Defendant andAppllant.

Appeal fm: DistrictCourtof theThirteenthJudicialDistrict, HonorableRobertH. Wilson, Judgepresiding. Counselof Record: J ForAppellant: D. Frank Karpfe argued, RedIdge, Pbntana SallyJohnson argued, Red Lodge, Mntana For Respondent: Hon. Mike Greely, Attorney General, Helena, Pbntana SheriSpriggargued, AssistantAttorney General, Helena,

Pbntana PabloPerhacs, CountyAttorney, RedLodge, Mntana ArthwAyersargued, RedLodge, Montana

S*tted: June 5, 1979 mid&:

# &I 1; ljLp i Filed: 

### - , t 

# --

### Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Edwin Grant Hamilton appeals from his convictionby a jury in Carbon County of the crime ofmitigated deliberate homicide. This Court heard oral argument upon thematter on June 5, 1979. On June 18, 1979, the United States Supreme Court decided the case of Sandstromv. Montana (1979), 442 U.S. 

## , 99 S.Ct. 2450, 61

### L Ed 2d 39. The Sandstrom casewas decided before this Court had decided thepresent case. Upon our review of the record in the present case we determined that further argumentwas necessary in light of the Sandstromcase,because neither party addressed this issue in the original hearing. Additional briefs

were filed by the parties and oral argumentwas again presented to this Court on October 29, 1979. This second hearing was limited solely to the Sandstrom issue. The following decision disposes of the issues raised in both the October and June hearings. At 6:26 p.m. on the evening of February 12, 1978,the weekend dispatcher for the Carbon County sheriff and Red Lodge police departments answered a telephone call. Her greeting "This is the Red Lodge Police Department" received no response. Rather, she overheard what sounded to her "like a couple of drunks arguofficer ing." She stated to a police/standing nearby that "this sounds like we have got a fight." She then heard a male voice say "You tried to call the goddamn cops onme." The dispatcher then turned the phone over to the officer. For approximately the next half hour, the police officer listened through the phone to the events occurring at the source of the call. He heard what sounded like a strugglebetween a male and female. Therewas scuffling and a female voice calling for help. After hearing what sounded like the female gasping for air and choking, the officer began to write down 

### the intelligiblewords and sentenceshe couldmake out. He recorded the following phrases spoken at intervalsby the male voice: "Goddamnit,die. Iam going to hell. Mamma, I am sorry. You all right, Mamma, huh? NO, no, no,Mamma. I loveyou. Mamma, Mamma, Mamma. Like hell I am. Ihave never done this in my life. Now Ihave got to find my glasses. Mamma,Mamma. Die,you bitch. Goddarnnit,die. Are you going to die or not? Die,damnit. I 

### am going to hell,Mamma." As the officer continued listening, he heard what he thought was someonedialing the telephone on the other end of the line. Themale voice then spoke into the receiver: "Hang the goddamnphone up, Ihave to callmy cousin. My mother is dead. She had a heart attack." The officer inquired as to the party's name and address. The individual identified himself as Grant Hamilton of 207-1/2 North Platt,a location only a block away from the police station. When a sheriff's deputy who had been advised of the location arrived there minutes later, he found defendant, 54 year old Edwin Grant Hamilton, with bruises and scratcheson his face and a trickle of blood from a wound on the top of his head. Lying face down on the floor near the doorway between the living

room and a bedroomwas the body of Mabel Johnson,defendant's 75 year old mother with whom he shared the premises. She had been manually strangled to death. Shortly thereafter, the police officer who had been listening on the phone arrived at the scene,and a fewminutes later the Carbon County sheriff also arrived. The sheriffplaced defendant under arrest and took him into custody. The police officer and deputy sheriff then proceeded to take photographs of the interior of the house and gather physical evidence. The officershad no search warrant and had not asked defendant's permission to search the premises.On February 16, 1978,an application for leave to file informationwas filed by the county attorney of Carbon County, alleging that defendanthad committed the crime of deliberate homicide. Counsel for defendant objected that the affidavit accompanying the application failed to set forth probable cause, but the objectionwas overruled. On September 11, 1978,defendant was brought to trial. After the presentation of evidence instructionswere given; one of the instructions given to the jury read as follows: "The lawpresumes that a person intends the ordinary consequences of his voluntary acts." This instructionwas objected to by defense counsel. The jury returned a verdict of guilty of mitigated deliberate homicide. Defendant

was sentenced to 35 years in Montana State Prison. The defendant specifies six errors:

(1) Whether defendant was the victim of an illegal arrest? (2) Whether the affidavit in support of the application for leave to file informationwas sufficient to establish probable cause? (3) Whether the District Court erred in denying defendant's motion in limine to exclude evidence regarding the telephone call to the Carbon County sheriff's office? 

### (4) Whether the District Court committed reversible error in refusing to give defendant's offered instructionson negligent homicide as a lesser included offense? (5) Whether the District Court committed reversible

error in refusing to give defendant's proposed self-defense instruction? (6) Whether the District Court committed reversible

error in giving the instruction, "The lawpresumes that a person intends the ordinary consequences of his voluntary acts." We hold that the arrest was lawful and, consequently, theitems of evidence garnered within the limits of the search incident to arrest were properly admitted. Section 46-6-401(4), MCA, provides that a peace officer may arrest a person without an arrestwarrant when "hebelieves

on reasonable grounds that the person is committing an offense

or that the person has committed an offense and the existing circumstances requirehis immediate arrest." "Reasonablegrounds" as used in this statute is synonymous with "probablecause". State v. FettersQ974), 165Mont. 117, 122, 526 P.2d 122. "Probable cause to arrest without a warrant exists where the facts and circumstanceswithin the officer's knowledge and of which he had reasonably trustworthy informationare sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Statev. Hill (1976), 170Mont. 71, 74, 550 P.2d 390, 392. "Evidence required to establish guilt is not necessary to prove probable cause." Fetters, 165Mont. at 122. However, the mere fact that a defendant is present at the scene of a crime does not justify his arrest. State ex rel. Glantz v. District Court

(1969), 154 Mont. 132, 139, 461 P.2d 193, 197. "There must be a showing of some connectionwith illegal or criminal activity by a defendant on the premises before there is probable cause to arrest 

## Z-,L/ ,

### ,,y him.

### " State v. Lenon (1977)

## , Mont

# . , 570 P.2d IT\34 St.Rep. 1153, 1156, citing State v. Hull (1971), 158Mont. 6,487 P.2d 1314. "Where an officer reasonably believes that a person had in the past committed an offense,he may arrest the suspectwithout a warrant only where the existing circumstances require his immediate arrest. Where, however the peace officer reasonably believes that an individual is presently committing an offense, he may arrest that person at that time,whether or not the existingcircumstances require his immediate arrest." Lenon, supra. 34 %.Rep. at 1153. The foregoing authorities are the controlling case law in Montana on this issue. The defendant argues that his mere presence at the scene of the crime isnot sufficient probable

cause to justify the arrest. This is a correct statementof the 7: law. State ex rel. Glanx, supra. The facts of this case,however,present more than "merepresence" at the scene of the crime. The police officers knew of the events overheard on the phone. The defendant was present with the corpse at the source of the call. Thepolice arrived at the scene of the crime within minutes after the events were heard on the phone. The scratches on the defendant's face indicated that he had recentlybeen involved in

a fight. These events sufficiently constituteprobable cause to arrest the defendant. The language cited above from Lenon indicate that a warrantless arrest must be made only when the crime was committed in the officer's presence or that there are existing circumstances which requirehis immediate arrest. (Section 46-6-401,MCA, outlines other circumstanceswhere a warrantless arrestmay be made, but those circumstances are notpresented in this case.) As a result,we arepresented wit:: a problem concerning the time element in the present case. Defendant argues that the commission of the offensewas in thepast by the time the arrestwasmade and that the existing circumstances did not require defendant's immediate arrest because he "wasnot going anywhere and there was ample time in which to secure a warrant without losing any evidence or risking any personal danger to law enforcement officers." However, "knowledgeof the commission of an offense in an officer's presencemay be gained by him through a mechanical apparatus"and anoffense is "deemed committed in the presence of the officer" so as to justify arrest without a warrant "whenhe hears the disturbance and proceeds at once to the scene." 6AC.J.S. Arrest 818. Even in the case of amisdemeanor,under statutes allowing warrantless arrest for offenses committed in the officer's presence, such an arrest after the offense is completed is proper if made within a reasonable time or upon fresh and immediatepursuit. 5 Am Jur 2d,Arrest S33. It has been held that the right to make warrantless arrests is broader in felony cases than in misdemeanor cases. Chaney v. State (1975), 133 Ga.App. 913, 213

Defendant's attempt to invalidate his arrest on the basis of this time argumentmust fail. What the officer overheard on the telephone led him to reasonably believe that the defendant

was presently committing an offense. Thewarrantless arrestpursuant to that belief minutes laterwas proper regardlessof whether

or not the existing circumstancesrequired immediate arrest. The arrest being lawful, the items of evidence acquired pursuant to that arrest were properly admitted at trial. The defendant contends that the affidavit in support of application for leave to file informationwas insufficient. Section 46-11-201(1), MCA, provides: "Thecounty attorneymay apply directly to the district court forpermission to file an information against a named defendant. The application must be by affidavit supported by such evidence as the judgemay require. If it appears that there is probable cause to believe that an offense hasbeen committed by the defendant the judge shall grant leave to file the information, otherwise the application shall be denied." The Revised Commission Comment states, in pertinent part: "Obtaining leave to file an information isnot a mere perfunctory matter,but rests in the sound discretion of the district judge. The application must be complete in itself,and contain such salient facts aswill allow the district judge tomake an independent determination that an offense has been committed. It is impossible to delineateherewhat facts would be necessary for all cases; however, a recitation of the fact the defendant had been arrested, that hewas accused of a crime,and that there is good evidence (e.g. eyewitnesses) implicating him with the crime would seem sufficient." The foregoing statute and commission comment supply the test by which we measure whether an affidavit is sufficient to make possible an independent determination of probable cause by the District Court. State ex rel. Murphy v. ~cKinnon(1976), 171Mont. 120, 556 P.2d 906. "Examinationof the record reveals

no supporting evidence other than the amended affidavit [was required by the judge under 946-11-201(1), MCA]. ~hus, in determining whether probable cause existed this Court is confined to the contents of the amended affidavit." Murphy, 171Mont. at 124. The defendant points to the fact that certain statements used in the affidavit were later suppressed on defendant's motion. It is contended by thedefendant that without those statements the affidavit is insufficient. We do not agree. The affidavitwith the offending portions excised,reads: "ARTHURW. AYERS

### ,JR.

### ,being firstduly sworn, upon oath,deposes and says: "Thathe is the duly elected, qualified and acting County Attorney of Carbon County,Montana; that on February 12, 1978,at approximately 6:26 P.M. a telephone callwas received by the dispatcher at the Carbon County Sheriff's office; that the dispatcher heard a disturbance on the other end of the telephone line and handed the telephone to Red Lodge City Police Officer Craig Christie; that Officer Christieheard a male voice at the other end of the telephone line state: 'Mamma,Mamma, die you bitch, God damnitdie, areyou going to die or not,die damnit, I'm going to hell'; that a male person at the other end of the telephone line then attempted to use the telephone and Officer Christie inquired as to the person's name and the address and was advised 'Grant Hamilton' and '207-1/2 North Platt'; that Carbon County Deputy Sheriff Bert J. Obert and Officer Christie then proceeded to 207-1/2 North Platt in the city of Red Lodge and discovered the defendant Edwin Grant Hamilton at such residence together with Mabel Johnson who appeared to said officers to be deceased; that at 7:35 P.M. Mabel Johnsonwas pronounced dead by a physician at her said residence 207-1/2 North Platt,Red Lodge,Montana,which residencewas shared by her son,the defendant Edwin Grant Hamilton and no others; that the cause of death of Mabel Johnson has been pathologically determined to be manual strangulation;

# .. . and that there is thereforeprobable cause to believe that on or about February 12, 1978, in the City of Red Lodge,County of Carbon, State of Montana, Edwin Grant Hamilton then and there purposely or knowingly caused the death of Mabel Johnson by strangling." A prima facie showing that defendant committed an offense is not necessary in an affidavit in support of leave to file; a

mere probability is sufficient for probable cause. Statev. Miner (1976), 169 Mont. 260, 546 P.2d 252. "[Jludges reviewing such affidavits should use their common sense in determining whether probable cause exists." Miner, 169Mont. at 264, 546

Defendanthere argues that the affidavit is deficient because "there is no contention that other persons did not have

access to the house wherein the deceased was found dead" and because the affidavitgives no reason "to believe that the appellant did not leave the premises during the day or that any other persons did not visit the residence" on the day of the crime. Defendant can cite no authority that the absence of these allegations is fatal. As with the illegal arrest issue,defendant's contentions here ignore the fact that evidence to establishprobable cause need not be as complete as evidence to establish guilt. A common sense reading of the affidavit, even with the matters deleted to which defendant objected, indicates that the statutory and decisional guidelines were more than adequatelymet by the affidavit. The defendant contends that evidence of the telephone call received by the Red Lodge Police Department on the night in question was inadmissible because there was no proper authentication or identification as a condition precedent to admissibility. The defendant argues that there is no inherent reliability to the evidence that the speakerwho identified himself over the phone to the police officer as Grant Hamilton was in fact thedefendant. Rule 901,Mont.R.Evid., provides in pertinentpart: "(a) Generalprovision. The requirementof authenticationor identificationas a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what itsproponent claims.

"(b) Illustrations. By way of illustrationonly, and not by way of limitation,the following are examples of authenticationor identification conformingwith the requirementsof this rule:

"(6) Telephone conversations. Telephone conversations,by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show theperson answering to be the one called, or (B) in the case of a business, the callwasmade to a place of business and the conversationrelated to business reasonably transacted over the telephone." As a general rule, "[aluthenticity for admissibility can be demonstrated by direct or circumstantial evidence and the sufficiency of evidence for a foundation is within the discretion of the trial judge." State v. Cooper (1972), 161Mont. 85, 92, 504 P.2d 978. Specifically regarding telephone calls, "many criminal cases have held or recognized that a mere statementof his identity by the caller on the telephone is not sufficient proof of such identity," but on the other hand a huge number of

cases take the position that "the identity of a participant in a telephone conversationmay be established by circumstantial evidence." Annot. 79ALR3d 79, §§19,20. A similar issue was presented in Churchillv. State (Tex.Crim.App. 1958), 317 S.W.2d 541. In Churchill, the testimony of a deputy sheriff that he had a telephone conversation with a person who gave his name as defendant,who reported a shooting and instructed officers tomeet him at a certain place, the scene of the shooting,was admissible in evidence when further testimony showed that deputies were immediately dispatched to the scene and found defendant there. The fact that the deputywas not familiar with the defendant's voice went to the weight rather than to the admissibility of the testimony. Where the recipient of a call is not familiar with the caller's voice, "[clorroboration of a statement of identity by the caller sufficient to render the conversation admissible against him may be supplied by the evidence (1)that the subject matter of the call revealed that only the named party would likely have knowledge of those conversational facts; or (2) of other confirming circumstanceswhich make itprobable that the named person was, in fact, the speaker." [Citationsomitted.] State v. Marlar (1972), 94 Idaho 803, 498 ~.2d 1276, IW. Circumstances preceding or following a telephone conversationmay serve to sufficiently identify the caller so as to render telephone communication admissible. State v. Williamson

(1972), 210 Kan. 501, 502 P.2d 777. "The completenessof the identificationgoes to the weight of the evidence rather than to its admissibility,and the responsibility lies in the first instancewith the ~istrict Court to determine within its sound discretion whether the threshold of admissibility has been met." Williamson, 502 P.2d at 780. Defendant's contentionhere that evidence of the phone conversation should have been excluded because it did not fall within Rule 901(b)(6), Mont.R.Evid., is erroneousbecause the conditions stated therein are examples only. In this case there

are several confirming circumstancesmaking it probable that defendant was in fact the speaker. Therewas no error in the denial of defendant's motion in limine. The defendant alleges as error the District Court's failure to instruct on negligent homicide as a lesser included offense. Section 46-11-501(2)(a),MCA, defines "includedoffense"

as an offensewhich occurs when "it is established by proof of the same or less than all the facts required to establish thecommission of the offense charged 

# .

# .." While this definition is applicable to double jeopardy or formerprosecution as a bar to a new prosecution, it also applies where we must determine whether an instruction on a supposed lesser included offense is required. In the instant case the defendantwas charged with deliberatehomicide. Section 45-5-102,MCA. The refused requested instruction dealt with negligent homicide. Section 45-5-104,MCA. The difference between the two crimes consists of the mental statenecessary to convict a defendant of the respective crimes. Forpurposes of the following discussion we will assume that negligent homicide is a lesser included offense of deliberate homicide. The question of the necessity of an instructionon a lesser included offense has been addressed in a number of recent

cases by this Court. We have consistently held that such an instruction is required where there is some evidence to support the lesser offense. "[A] defendant is entitled to instructionson lesser included offenses if any evidence exists in the record 

### - which would permit the jury to rationally find him guilty of a lesser offense and acquit him of a greater." Statev. Ostwald Mont

# . (1979)

## , , 591 P.2d 646, 651, 36 St.Rep. 442, 448, This test has been consistently applied by this Court. See Statev. Baugh (1977), 174Mont. 456, 571 P.2d 779, 34 St.Rep. 1315; State v. Bouslaugh (1978), Mont

# . , 576 P.2d 261, 35 St.Rep. 319; Statev. Radi (1978), Mont

# . , 578 P.2d 1169, 35 St.Rep. 489; Statev. Reiner (1978), Mont

# . , 587 P.2d 950, 35 St.Rep. 1861. In the Reiner case, the defendant pointed a firearm at severalpeople and was subsequently convicted of aggravated assault. The defendant had asked for an instructionon the lesser included offense of assault and had been refused. Under this set of facts the apprehension of seriousbodily injury by the victimswas determinative. See section 45-5-202(c). 

### his Court refused to overturn the conviction, saying: "Theremay be cases in which pointing a firearm - or threatening another with a firearm could constitute assault rather than aggravated assault but we are not called upon here to say what those circumstancesmight be. In this case it is clear that the defendantput his victim in reasonable apprehension of serious bodily injury by his menacing use of a ,357magnum revolver." Mont

# . I 587 P.2d at 958. We are faced with a similar case. There is testimony in the record that death by manual strangulation requires two to threeminutes, and longer if the victim struggles. In refusing the instruction,the District Court judge stated, "Well since the defense of negligent homicide is beyond my wildest imagination



# .. . I am going to refuse Defendant's 

# ..."instruction. Likewise, this Court cannot conceivehow this death occurred as a result of negligence. We find no evidence in the record upon which an instruction of negligent homicide could be based. It was not error to refuse such an instruction. Defendant contends the trial court erred in refusing defendant's offered instructionNo. 34,which said: "Youare instructed that if a person is assaulted in such a way as to induce in him a reasonable belief of danger of losing his life or suffering bodily harm, or that his family or a member thereof may suffer bodily harm, or another may suffer bodily harm, or his home is threatened,he will be justified indefending himself or another, though the danger be not real, only apparent." The instruction that was given instead stated: "Aperson is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force. "However,a person is justified in the use of force which is intended or likely to causedeath or seriousbodily harm only if he reasonably believes that such force is necessary to prevent imminent death or serious bodily harm to himself." This is language taken from section 45-3-102,MCA. Defendant argues that because of the expert testimonyregarding the intimidating effects on defendant caused by his bizarre relationship with his mother, itwas essential that the jury be specifically instructed that his claim of self-defensebe judged in terms of the apparentdanger which he perceived and not the actual dangers which faced him. However,where counsel is "not limited under [the] instructions [given] from fairly presenting his defense to the jury, the defendant will not be heard to complain that the court failed to give themany different

nuances on a theory of defense that might have been devised."

. I* Statev. Collins (1978), Mont

# . ,?X? P.2d 1179, 35 St.Rep.

The same issuewas discussed in the Reiner case, supra. In that casewe said: "In this instance the Court's instruction to the jurywas drawn directly from the self-defense statute applicable. That statute states the jury must base its determination of the self-defense claim upon the defendant's reasonable belief of the need to use force to protect himself. While this instruction does notmake the concept of apparent danger absolutely clear,neither does it misstate the law of self-defense. Under these circumstances the better practice may be to clearly instruct that the defendant's claimmust be judged in terms of the apparent danger which he perceived, and not the actual danger which faced him. Yet the instruction given in this case cannot be considered so misleading as to require a new trial. Wemust assume that the jury did consider defendant's belief in the need to use force and whether that belief was reasgnable. This is all the statute requires.

### " 587 P.26% 

# P , 35 St.Rep. at 1869. The Reiner case controis. It was not reversible error to refuse the defendant's offered instructionNo. 34. Finally, the defendant contends that the giving of the following instruction to his jury constitutes reversible error. "The law presumes that a person intends the ordinary consequencesof his voluntary acts." Defense counsel made an objection to this instruction: 

### " 

# . ..Nowhere in the Montana Criminal Code is a statement that says that you can presumewhat that offered instruction says; that is in violation ofthe requirement that the State must prove by competent evidence each and everymaterial allegation and here there is a presumption that would not require the standard test beyond a reasonable doubt.

### " In a recent United States Supreme Court case it was held that an instruction which was given to the jury and which was identical to the above instruction,constituted reversible error. Sandstromv. Montana (1979), 442 U.S. 

## , 99 S.Ct. 2450, 61

The Supreme Court came to this conclusion by analysing the instruction "theway inwhich a reasonable juror could have interpreted the instruction." Theywent on to say: "Given the common definition of 'presume'as 'to suppose to be true without proof,' Webster's New Collegiate Dictionary 911 (1974), and given the lack of qualifying instructions as to the legal effect of the presumption,we cannot discount the possibility that the jury may have interpreted the instruction in either of two more stringent ways.

### " The firstway the instructionmay have been interpreted by the jurywas as an irrebutable direction rather than a presumption. The second way was explained as follows: 

### " 

# ... the jurymay have interpreted the instruction as a direction to find intentupon proof of the defendant's voluntary actions (and their 'ordinary' consequences), unless the defendantproved the contraGy by some quantum of proof whichmay well have been considerably greater than 'some' evidence--thuseffectively shifting the burden of persuasion on the element of intent. Numerous federal and state courts have warned that instructionsof the type given here can be interpreted in just these ways. (Citationsomitted.) And although the Montana Supreme Court held to the contrary in this case,Montana's own Rules of Evidence expressly state that the presumption at issue here may be overcome only 'by a preponderance of evidence contrary to the presumption.' Montana Rules of Evidence 301(b)(2). Such a requirement shifts not only the burden of production, but also the ultimate burden of persuasion on the issue of intent. "Wedo not reject the possibility that some jurors may have interpreted the challenged instruction as permissive, or, if mandatory, as requiring only that the defendant come forward with 'some' evidence in rebuttal. However, the fact that a reasonable juror could have given the presumption conclusive orpersuasion-shifting effectmeans that we cannot discount the possibility that Sandstrom's jurors actually did proceed upon one or the other of these latter interpretations. And that means that unless these kinds of presumptions are constitutional, the instruction cannot be adjudged valid." 442U.S. at



## , 99 S.Ct. at 

## , 61L Ed 2d at 47-48. A statemust prove beyond a reasonable doubt every element of the crime charged. In reWinship (1970), 397U.S. 358, 90 S.Ct. 1068, 25 L Ed 2d 368. In Sandstrom the State had to prove that the crimewas committed purposely or knowingly. Section 45-5-102, MCA. The United States Supreme Court concluded that under either interpretation the instructionrelieved the state of proving intent beyond a reasonabledoubt, therefore, it violated defendant's guarantee of due process. If the instruction was interpreted as a conclusivepresumption it would excuse the state fromproving

a vital element and would be unconstitutionalunder Winship, supra. If Sandstrom's jury had interpreted the presumption asmerely shifting the burden of persuasion, "it could have concluded that upon proof by the State of the slaying,and of additional facts not themselves establishing the element of intent, the burden was shifted to defendant to prove he lacked the requisite mental state. Such a presumption was found constitutionally deficient in Mullaney

v. Wilbur, 421U.S. 684 (1975)." The Supreme Court concluded that "the judgmentof the Supreme Court of Montana is reversed and remanded for further proceedingsnot inconsistentwith this opinion." 442 U.S. at 

### , 99 S.Ct. at 

### , 61L Ed 2d at 53. This Court subsequently remanded the case to the District Court for a retrial. Statev. Sandstrom (1979), Mont

# . I

The State contends that the instructionwas harmless error under the facts of this case. We agree. Thepresent case began with a phone call to the Carbon County sheriff's office. An officer heard what sounded like a strugglebetween a male and female. There was scuffling and afemale voice calling for help. After hearing what sounded like the femalegasping for air and choking, the officer began to write down the intelligible words and sentenceshe could make out. He recorded the following phrases spoken at intervalsby themale voice: "Goddamnit,die. I am going to hell. Mamma, I am sorry. You all right, Mamma, huh? NO, no, no,Mamma. I love you. Mamma, Mamma, Mamma, Like hell Iam. Ihave never done this inmy life. Now Ihave got to find my glasses. Mamma, Mamma. Die, you bitch. Goddamnit, die. Are you going to die or not? Die,damnit. I am going to hell,Mamma." Minutes later, law enforcement officers arrived at the defendant's home and found him with bruises and scratcheson his face. His 75year old mother was lying facedown on the floor. Shehad been manually strangled to death. These facts were testified to at trial. In order for a federal constitutionalerror to be held harmless, the court must be able to declare a belief that it

was harmless beyond a reasonabledoubt. Chapman v. California

(1967), 386 U.S. 18, 87 S.Ct. 824, 17 L Ed 2d 705. The Chapman decisionwas based upon the earlier decision of Fahy v. Connecticut

(1963),375 U.S. 85, 84 S.Ct. 229, 11L Ed 2d 171. The court had said in Fahy: "The question is whether there is a reasonable possibility that the evidence complained ofmight have contributed to the conviction." 375 U.S. at 86-87. In Harringtonv. California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L Ed 2d 284, the Supreme Court again considered the concept of harmless error. Theprosecution, during defendant's trial,had introduced the confessions of three codefendants. Two of the codefendantsdid not take the stand. This practice had been held to be a denial of Sixth Amendment rights in Bruton v. United states (1968),391U.S. 123, 88 S.Ct. 1620, 20 L Ed 2d 476. In Harrington, however, the Court held that the practice could,under the facts of the case,be held as harmless error. The Court said: "Butapart from them [theconfessions] the case against Harrington was so overwhelming that we conclude that thisviolation of Bruton was harmlessbeyond a reasonabledoubt,unless we adopt the minority view in Chapman (386U.S. at 42-45) that a departure from constitutional procedures should result in an automatic reversal, regardless of the weight of the evidence. "It is argued that we must reverse if we can imagine a single juror whose mind might have been made up because of Cooper's and Bosby's confessions and who otherwisewould have remained in doubt and unconvinced. We of course do not know the jurors

- who sat. Our judgment must be based on our 

### own readinq of the record and onwhat seems to us to have been the probable impact of the two confessions on the minds of an average jury. We admonished in Chapman, 386 U.S., at 23, against giving too much emphasis to 'overhelming evidence' of quilt, stating that constitutional errors affecting thesubstantial rights of the aggrieved party could not be considered to be harmless. By that test we cannot impute reversible weight to the two confessions. "We do not depart from Chapman; nor do we dilute itby inference. We reaffirm it. We do not sussest that, if evidence bearing on all the ingredients40f the crime is tendered, the use of cumulative evidence, though tainted, is harmless error. Our decision is based on the evidence in this record. The case against Harringtonwas not woven from circumstantial evidence. It is so overwhelming that unless we say that no violation of Bruton can constitute harmless error, we must leavemtateconvictionundisturbed." 395 U.S. at 254. (Emphasisadded.) InMilton v. Wainwright (1972), 407 U.S. 371, 92 S.Ct. 2174, 33 L Ed 2d 1, the Supreme Court again considered the harmless error doctrine. The Court said that there was overwhelming evidence of guilt and that there was "noreasonabledoubt that the jury

# . ..would have reached the same verdict without hearing [thetainted1 testimony." 407 U.S. at 377. Consequently, defendant's conviction was affirmed. The tests used in Harrington and Milton seemingly are different. The Harrington test focuses on the impact upon the jury. TheMilton test focusesupon the amount of evidencepresented at the trial or the "overwhelming evidence" test. See BOY, Harmless Error: The Need For a Uniform Standard, 53 St. John's L.R. 541 (1979). Recently, this Court hasmade the followingobservation: "To constitute harmless error,we must be able to assent as a Court that the offensive instructioncould not reasonably have contributed to the jury verdict." Statev. Sandstrom (1979), Mont. I at 

## , 603 P.2d 244, at 245, 36 St.Rep. 2099, 2100. This statement indicates that the law in Montana as to harmless error is closer to the Harrington test. That is, the appellate court determines the impact of the error upon a reasonable jury. If the impact of the instruction could not have reasonably contributed to the verdict, then the error is harmless. That such

an approach is correct is emphasized by the United States Supreme Court. They said that the proper analysis of an instruction begins with "theway in which a reasonable juror could have interpreted the instruction." 442 U.S. at 

## , 99 S.Ct. at , 61L Ed 2d at 45.

. Under Montana law, causing the death of another becomes deliberate homicide only when it is committedpurposely or knowingly. Section 45-5-102,MCA. Therefore,these elements are necessary to the proof of this particular crime,and must be proved beyond a reasonable doubt by the prosecution. For obvious reasons, intent is a difficult element to prove. The evidencemust normally be in the nature of outward manifestations of the defendant's state of mind. In the present case,however,we have a unique situation. We know what the defendant was thinking. A police officer heard him say, among other things:"Goddamnit,die 

# .

# .. Dieyou bitch. Goddamnit, die. Are you going to die or not? Die,damnit

# .. . I@ It is difficult to conceive of a better indication as todefendant's intent. Also, the officer heard the fight at the time these words were spoken and another officer found the defendant and the victim's body minutes later. For purposes of this issue, the only contested element is intent. The evidence as to intent is overwhelming. We have carefully read the record and our holding isbased upon the probable impact of the instruction upon the minds of the average jury. In the light of the evidence, the impact of the instruction upon the jury could not have reasonably contributed to the verdict. The error was harmless. Affirmed.

We con fi Chief Justice