No. 13875 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

STATE OF MONTANA, 

Plaintiff and Respondent, 

LYNN C. GALLAHER and 

BRIAN J. COLEMAN, 

Defendants and Appellants. 

Appeal from: District Court of the Third Judicial District, 

Honorable Arnold Olsen, Judge presiding. 

Counsel of Record: 

For Appellants: 

Byron W. Boggs argued, Anaconda, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Allen Chronister, Assistant Attorney General, argued, 

Helena, Montana 

James J. Masar, County Attorney, Deer Lodge, Montana 

Submitted: March 9, 1978 

,I l.J,Y . .'. 

Filed: 

Decided jurr - 1 7378 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Defendants Lynn Gallaher and Brian Coleman appeal from 

their convictions of committing the offense of escape and from 

their subsequent designations by the District Court as persistent 

felony offenders. 

At the time of their escape attempt, defendants Gallaher 

and Coleman were inmates at Montana State Prison, serving sentences for prior felony convictions. On January 6, 1977, Gallaher 

and Coleman, who had been undergoing hospital care at Powell County 

Hospital in Deer Lodge, Montana, were waiting to be transported 

back to the prison by Officer Dale Dodge of the Montana State 

Prison staff. Officer Robert McNally, the warden's administrative assistant at the prison, was at the hospital at the same time 

conducting other business. Coincidentally, he was driving a "cage 

car", a station wagon used to transport prisoners back and forth 

from the prison. When Officer Dodge discovered this, he telephoned 

prison authorities and arranged to transport Gallaher and Coleman 

back to the prison in Officer McNally's car instead of waiting 

for another car and driver to arrive. 

Officer Dodge escorted Gallaher and Coleman out of their 

hospital room and down the hallway to the hospital entrance. On 

their way they passed Officer McNally who was talking with others 

at a nurses' station in the hallway. When the three arrived at 

the hospital entrance, Officer McNally was still some distance 

behind them. Once outside, Officer Dodge waited for Officer McNally to come out before putting the defendants into the car. When 

Officer McNally did not immediately follow, the defendants looked 

at each other and decided to run for it. 

As soon as the defendants began running, Officer Dodge 

shouted to them to stop. He first fired a warning shot high in 

the air and when defendants did not stop, he fired another over 
their heads. Eugene Hurlburt, a maintenance man at the hospital, 

and Officer Dodge then gave chase to defendants and caught 

both of them within two hundred yards of the hospital. 

On January 31, 1977, Gallaher and Coleman were charged 

by information filed in the District Court, Third Judicial District, Powell County, with committing the offense of escape. 

Both defendants plead not guilty and the District Court set a 

trial date for March 10, 1977. 

On March 9, 1977, the deputy county attorney served defendants' counsel with notices of intent to request a finding 

of persistent felony offender based on the prior felony convictions of each defendant. At that time, the prosecutor proposed 

to defense counsel that if the defendants changed their pleas 

to guilty, he would not file those requests. 

At the outset of defendants' trial, their counsel moved 

to withdraw their pleas of not guilty and to enter guilty pleas. 

The court asked defendants' counsel whether defendants felt any 

compunction or duress to change their pleas. When defense counsel 

responded that if he was in the defendants' position he would feel 

duress, the court denied his motion. The State then filed with 

the District Court a notice of request for finding of persistent 

felony offender against Gallaher for sentencing and parole purposes and a similar notice against Coleman for parole purposes. 

(Because Coleman was under 21 years of age at the time of committing the escape, he could not be sentenced as a persistent felony 

offender. Section 95-1507 (6), R.C.M. 1947 (amended 1977). ) 

At trial defendants attempted to establish the defense 

of entrapment through cross-examination of the State's witnesses. 

The District Court sustained objections to certain of defense 

counsel's cross-examination questions and subsequently refused 

all of defendants' instructions on the entrapment defense. Defendants were eventually convicted by jury of committing the 
offense of escape. On April 4, 1977, the District Court designated both defendants as persistent felony offenders and sentenced them each to eight years in prison to be served consecutively to their prior sentences. 

In their appeal defendants raise the following issues: 

1. Did the manner in which the State used the habitual 

criminal statute during plea bargaining negotiations constitute 

an unlawful attempt to coerce a guilty plea in violation of the 

defendants' constitutional right to a jury trial? 

2. Did the District Court err in sustaining objections 

to certain of defense counsel's cross-examination questions 

through which defendants attempted to develop a defense of entrapment? 

3. Did the District Court err in refusing defendants' 

instructions on the entrapment defense? 

Defendants' first specification of error is that they 

were deprived of due process of law because less than 24 hours 

before trial the prosecutor threatened to invoke the habitual 

criminal statute unless the defendants changed their pleas to 

guilty. Defendants claim that the habitual criminal statute was 

invoked to punish them for attempting to exercise their right to 

a jury trial, that the prosecutor knew of defendants' prior 

felony convictions long before he filed notice of intent to seek 

increased punishment, that this action is inconsistent with a 

belief by the prosecutor that a longer sentence was necessary, 

and the record is barren of any justification for the prosecutor's 

action. They argue that this Court's holding in State v. Sather, 

(1977) Mont . , 564 P.2d 1306, 34 St.Rep. 462, is dispositive of their case. They ask this Court to vacate their sentences, 

strike the State's notices to seek increased punishment, and remand 

their case for resentencing. 
The State counters that there are decisive factual differences between this case and Sather; consequently, it should 

not be regarded as controlling. Alternatively, it argues that 

the recent United States Supreme Court decision of Bordenkircher 

v. Hayes vitiates the Sather rationale. See, Bordenkircher v. 

Hayes, (1978) , U.S. , 98 S.Ct. 663, 54 L Ed 2d 604, 612, 22 

&irnL.R. 3023, rev'g, Hayes v. Cowan, (6th Cir. 1976), 547 F.2d 

42. In passing, we note that the Supreme Court's holding in 

- Bordenkircher was a narrow one. It held only that I' * * * the course 

of conduct engaged in by the prosecutor in this case, which no 

more than openly presented the defendant with the unpleasant alternatives of foregoing trial or facing charges on which he was 

plainly subject to prosecution, did not violate the Due Process 

Clause of the Fourteenth Amendment." 54 L Ed 2d 612. Because 

we agree with the State that this case is factually distinguishable from Sather, we conclude that Sather does not control the 

outcome of this case. Additionally, we find no due process 

violation involved here. 

In Sather defendant Sather and Claude McIntosh were 

charged with the offenses of attempted burglary and theft on 

October 30, 1975. Both initially plead not guilty to the charges, 

but on October 31, McIntosh entered into a written plea bargain 

agreement with the State. In consideration for a plea of guilty 

to the two charges, the State agreed among other things to recommend 

sentences of ten years on the charge of attempted burglary and 

five years on the charge of theft to be served concurrently. 

McIntosh changed his plea to guilty and on November 20 he received 

a sentence in conformity with the plea bargain agreement. 

In plea bargaining negotiations with Sather, the State 

was willing to recommend a sentence of ten years, but Sather rejected that plea bargain arrangement. From mid-November until 

the day before his trial Sather was incarcerated at the Montana 
State Prison in Deer Lodge. On April 7, 1976, he was transferred 

back to Missoula for trial. Only then did the prosecutor file 

notice of intent to seek increased punishment under the habitual 

criminal statutes. At the same time, however, the prosecutor 

offered to withdraw this notice if Sather would plead guilty before trial began the next day and to recommend the same ten year 

sentence previously offered. Sather refused to plead guilty. 

He was then convicted on the attempted burglary charge and under 

the habitual criminal statute was given a 50 year sentence. 

On appeal Sather argued that the prosecutor had used plea 

bargaining procedures and invoked the habitual criminal statute 

for an improper purpose and that the judge had punished him with 

an excessive sentence for refusing to plead guilty. Sather presented facts which showed that the prosecutor knew of his prior 

criminal record, had the parole board's evaluation of Sather 

before him and had completed his information gathering long before invoking the habitual criminal statute; that in numerous plea 

bargaining sessions the prosecutor had offered to recommend a 

ten year sentence if Sather would plead guilty; that the prosecutor had waited until plea bargaining had broken down and trial 

was only 24 hours away before he threatened to invoke the habitual 

criminal statute; and that even then the prosecutor offered to 

withdraw his invocation of the habitual criminal statute and still 

recommend a ten year sentence if Sather would plead guilty. 

The crucial factors in Sather were Sather had shown that 

the prosecutor was in a position to evaluate whether or not it 

was in the public interest to invoke the habitual criminal statute long before he did invoke it and that in contrast to his 

prior evaluation of the case the prosecutor in the 24 hours prior 

to trial threatened to recommend greatly increased punishment 

under the habitual criminal statute unless Sather pleaded guilty. 

We concluded that the only supportable inference from the prosecutor's 
conduct was that the prosecutor had punished Sather for refusing 

to waive his right to a jury trial and that the disparity in 

sentences which the District Court gave to Sather and IlcIntosh 

lent support to the inference. The facts of the Sather case 

strongly suggested that Sather had been treated unjustly. 

The Sather case was submitted to the court upon an agreed 

statement of the proceedings, the District Court file, and a certified copy of the docket entries. Although the defendants here 

make allegations similar to those Sather made, their case, in 

contrast, is not as well documented. Here, we have the District 

Court file to refer to, but we have neither an agreed statement 

of the proceedings up to the point of trial, nor a certified copy 

of docket entries. Consequently, we are unable to determine the 

point at which the prosecutor was able to fairly evaluate whether 

or not it was in the public interest to invoke the habitual criminal statute. Neither do we know the prosecutor's evaluation of 

the case as shown by the length of sentence he was willing to 

recommend in return for guilty pleas by the defendants nor the 

amount of increased punishment he threatened to seek if the defendants did not plead guilty. 

Another crucial difference between Sather and the instant 

case is in the length of sentences actually given. Invocation 

of the persistent felony offender statute for sentencing purposes 

mandates that the offender shall be imprisoned for a term of not 

less than five years nor more than 100 years. Section 95-1507(2), 

R.C.M. 1947 (amended 1977). Sather received a 50 year sentence 

for an offense which otherwise carried a maximum ten year penalty. 

In the instant case, the District Court, which had refused to 

allow either defendant to change his plea to guilty, sentenced 

Gallaher to eight years in prison. Although the escape offense 

carried a maximum penalty of ten years, he was subject to increased 
punishment of up to 100 years under the habitual criminal statute. 

In contrast, Coleman, who was not subject to the statute for 

sentencing purposes, received a similar eight year sentence. 

We are unable to perceive any indication here that the District 

Court sought to punish defendants for not pleading guilty when 

it was the District Court itself which refused to allow defendants to change their pleas to guilty. The sentences which defendants actually received here do not support such a contention. 

Defendants have not demonstrated a similarity to the 

disparity between sentences the prosecutor was willing to recommend and the sentences actually given nor the disparity in sentences between defendants themselves that was present in Sather. 

Because of this, we do not feel the facts of this case justify 

an inference that the defendants were punished for not pleading 

guilty. We, therefore, refuse to hold that defendants were denied 

due process of law. 

Defendants' second specification of error relates to the 

District Court's sustaining objections to certain of defendants' 

cross-examination questions through which they were attempting 

to establish a defense of entrapment. At trial the defendants 

did not deny that they attempted to escape; rather, they asserted 

the defense of entrapment as an excuse for their actions. Defendants claim the District Court improperly limited their crossexamination of the State's witnesses, Officers Dodge and McNally, 

thereby depriving them of an opportunity to prove the entrapment 

defense. 

At the outset, we note that at the time of this trial, 

March 10, 1977, the new Montana Rules of Evidence were not yet 

applicable. The new rules became effective July 1, 1977, for all 

trials held thereafter. In the Matter of the ~pplication of the 

Montana Bar Association, (1976), Mont . , 34 St.Rep. 302A, 

302B. We will not, therefore, make retroactive the application 
of the new Rules of Evidence. Because Montana's new Rules of 

Evidence have superseded some of the former rules, we emphasize 

that our discussion herein is of the rules in effect at the time 

the trial occurred. 

Section 93-1901-7, R.C.M. 1947, defines the allowable 

scope of cross-examination: "The opposite party may cross-examine the witness as to any facts stated in his direct examination or connected therewith * * *". This section permits a 

wide range for cross-examination and the courts should incline 

to extend, rather than to restrict, the right. " * * * Properly 

understood, the right extends, not only to all facts stated by 

the witness in his original examination, but to all other facts 

connected with them, whether directly or indirectly, which tend 

to enlighten the jury upon the question in controversy." Kipp 

v. Silverman, (1901), 25 Mont. 296, 306, 64 P. 884, 888. 

Defendants complain of six instances in which they allege 

the District Court allegedly improperly limited their crossexamination of Officer Dodge. All six instances were questions 

relating to what the proper prison procedure was for transporting the prisoners from their hospital room back to the prison, 

whether Officer Dodge followed that prison procedure, and if not, 

why he did not follow it. Although Officer Dodge testified on 

direct examination that he led the prisoners from their hospital 

room down the hallway and out the door, he did not testify to 

what the proper prison procedure was in doing so nor did he testify to whether his conduct was in conformity with prison procedure. 

In regard to prison procedure, he only testified to what was 

proper procedure to follow when prisoners were occupying a hospital room. For this reason, we think defendants' questions were 

outside the scope of Officer Dodge's direct examination and therefore, this was improper cross-examination. 

Defendants also complain of two other instances in which 
the District Court sustained objections to their cross-examination 

questions of Officer McNally. Defendants' questions to Officer 

McNally related to whether it was prison procedure to transport 

prisoners in handcuffs and belts such as the ones introduced as 

exhibits and to whether the prison classified inmates according 

to the degree of risk they posed to the prison. On direct examination Officer McNally only testified that he saw Officer 

Dodge and the two prisoners walk down the hallway and leave the 

building and then he saw the prisoners begin to run. We find no 

testimony in Officer McNally's direct examination which would 

bring these cross-examination questions within the scope of his 

direct examination. Again, we do not think the District Court 

erred in excluding these questions. 

The latitude of cross-examination is in the discretion 

of the trial court, and this Court will not interfere unless it 

is manifest that the trial court abused its discretion. State 

v. Carns, (1959), 136 Mont. 126, 136, 345 P.2d 735. We find no 

abuse of discretion here. 

The defendants' third specification of error relates to 

the District Court's refusal to submit any of their proposed 

instructions on the entrapment defense to the jury. 

To establish the defense of entrapment, the defendants 

must prove: (1) That criminal intent or design to commit the 

crime originated in the mind of the law enforcement officer; 

(2) that no criminal intent or design originated in the minds of 

the accused; and (3) that the law enforcement officer lured or 

induced the defendants into committing a crime they had no intention of committing. Section 94-3-111, R.C.M. 1947; State v. 

Grenfell, (1977) , Mont. , 564 P.2d 171, 34 St.Rep. 345, 

348: State ex rel. Hamlin, Jr. v. District Court, (1973), 163 

Mont. 16, 20, 515 P.2d 74. Where there is no evidence in the 

record supporting each element of the entrapment defense, the 
court may properly refuse to instruct the jury on the defense. 

State v. Parr, (1955), 129 Mont. 175, 182, 283 P.2d 1086. 

We have reviewed the transcript of defendants1 trial 

closely and do not find any evidence showing that the escape 

plan originated with prison officials or that they lured or 

induced the defendants into escaping. At most, the prison 

officers1 conduct presented only an opportunity to escape, of 

which they took advantage. Merely affording an opportunity for 

commission of the offense, however, does not come within the 

entrapment rule. State v. Karathanos, (1972), 158 Mont. 461, 

470, 493 P.2d 326. The defendants' attempted escape was on 

impulse. When the defendants walked outside the hospital, they 

testified that it "* * * didn't look like anything [was] going 

on * * *" so they "* * * hit the road". They 'I* * * just decided to go". For this reason, we conclude the District Court 

did not err in refusing to submit defendants1 instructions on 

entrapment to the jury. 

Defendants1 convictions are affirmed. 

Chief Justice 

5' 

We concur: ' /--' 

~ud~e, !&ting with the Court.